STATE v. PERALTA

Annotate this Case

Download PDF

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) ROBERT CARLOS PERALTA, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 7/18/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 12-0270 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-117219-001 The Honorable Carolyn K. Passamonte, Judge Pro Tempore AFFIRMED Thomas C. Horne, Arizona Attorney General by Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section Linley Wilson, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender by Louise Stark, Deputy Public Defender Attorneys for Appellant Phoenix T H U M M A, Judge ¶1 and Robert Carlos Peralta timely appeals his convictions sentences for discharge of a firearm at a structure, a dangerous offense, and aggravated assault, a domestic violence and dangerous offense. This court has jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 134031, -4033(A). 1 and Finding no reversible error, Peralta s convictions and sentences are affirmed. FACTS AND PROCEDURAL HISTORY 2 ¶2 The evidence at trial showed that Peralta fired two shots through the door of M.C. s (his girlfriend s) home while she was in a nearby hallway. After being arrested, Peralta admitted reporting a false carjacking to 9-1-1 immediately after the shooting to divert [the officers] out of the area. Peralta told the police a friend nicknamed Chavo (sometimes appearing in the transcript as Chabo ) fired the gun, apparently because Chavo recognized M.C. as someone who may have robbed him in the past. Peralta admitted to having the nickname Chavo, although he told the police he had not been called that name in a long time. Peralta did not testify and did not call any witnesses at trial. 1 Absent material revisions after the relevant dates, statutes cited refer to the current version unless otherwise indicated. 2 The evidence is viewed in the light most favorable to sustaining the conviction and all inferences are resolved against defendant. State v. Manzanedo, 210 Ariz. 292, 293, ¶ 3, 110 P.3d 1026, 1027 (App. 2005). 2 DISCUSSION I. ¶3 Impeachment Of M.C. s Trial Testimony. Peralta first argues the superior court abused its discretion in precluding impeachment of M.C. through testimony from police officers about M.C. s purported prior inconsistent statements that she did not recall making. 3 Applying an abuse of discretion standard, State v. Robinson, 165 Ariz. 51, 58, 796 P.2d 853, 860 (1990), the superior court s ruling is affirmed if correct for any reason, State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984). ¶4 At trial, M.C. testified that she: (1) saw Peralta pull out what she thought was a gun immediately before the shots were fired (and she recalled telling one police officer that the gun was in his waistband, but did not recall telling another officer the gun was in his pocket); (2) did not recall what she and Peralta had been arguing about and (3) recalled hearing two gunshots, but she might have told a police officer she heard three or four shots because of echoes she heard. ¶5 Peralta sought to impeach M.C. s testimony with testimony from police officers regarding whether M.C. previously had said Peralta pulled the gun out of his pants waistband or 3 Although prior statements may be used as evidence in a variety of ways, Peralta s argument on appeal is that he was improperly restricted from impeaching M.C. s trial testimony with her prior inconsistent statements. 3 pocket; what Peralta and M.C. had been arguing about prior to the incident and whether M.C. heard two or four gunshots. The State moved to preclude Peralta from impeaching M.C. on these details that she could not remember during her trial testimony. In granting the State s motion, the superior court stated it was not satisfied that any of the . . . statements that [M.C.] made were so crystalclear denials of what she had said in the previous interviews with police officers. I think they were either she agreed that yes, she said that at the time, or she doesn t recall what she said at the time and therefore, not proper subject of impeachment by extrinsic evidence. ¶6 In challenging that ruling, Peralta fails to show how M.C. s trial testimony was inconsistent with statements she made to the police admissibility officers, of such a necessary extrinsic predicate evidence for to the impeachment purposes. See State v. Navallez, 131 Ariz. 172, 174, 639 P.2d 362, 364 (App. 1981) (noting long established rule that in order for a prior statement to be admitted for impeachment it must directly, substantially, testimony in issue ); statement of a impeachment Ariz. witness unless it may and materially R. Crim. be admitted varies P. materially contradict 19.3(b) for ( No the from prior purpose the of witness testimony at trial. ); see also Ariz. R. Evid. 613(b) (providing for admission statement); of Ariz. extrinsic R. Evid. evidence of 801(d)(1)(A) 4 prior inconsistent (providing witness s prior statement that is inconsistent with the declarant s testimony is not hearsay). 4 Accordingly, given M.C. s lack of recollection at trial, there was no prior inconsistent statement on the points, meaning Peralta s argument fails. 5 ¶7 As the State suggests, [a] claimed inability to recall, when disbelieved by the trial judge, may be viewed as inconsistent with previous statements. State v. King, 180 Ariz. 268, 275, 883 P.2d 1024, 1031 (1994). A superior court has considerable discretion in determining whether evasive answers or lack of recollection by a witness at trial may be considered inconsistent with that witness s prior out-of-court statements. See State v. Hausner, 230 Ariz. 60, 76, ¶ 60, 280 P.3d 604, 620 (2012). Peralta, however, never claimed that M.C. was feigning memory loss, and the evidence in the record fails to support any such claim. 4 Contrary to Peralta s argument, State v. Ortega, 220 Ariz. 320, 206 P.3d 769 (App. 2008), did not specif[y] that lack of memory of the prior statement makes admission of the prior statement proper. Instead, Ortega -- the only case Peralta cites applying the Arizona Rules of Evidence -- addressed how a prior statement may be used to refresh the recollection of a witness or to impeach a witness who expressly denies making the prior statement, neither of which occurred here. See id. at 330, ¶ 33, 206 P.3d at 779 (citing Ariz. R. Evid. 612, 613(b) and 801(d)(1)). 5 The superior court was well within its discretion in finding the police officers could not testify as to the inconsistent statements that M.C. admitted at trial that she had made previously. See State v. Hines, 130 Ariz. 68, 71, 633 P.2d 1384, 1387 (1981) (where an inconsistency was admitted, [n]o further proof was necessary ). 5 ¶8 Because record does not they were suggest superior court did State s motion to not not inconsistent M.C. was feigning abuse its discretion Peralta from and prevent because memory in the loss, the granting the offering extrinsic evidence of prior statements by M.C. on these details that she could not remember during her trial testimony. II. Prosecutorial Misconduct. ¶9 Peralta argues prosecutorial misconduct, alleging the prosecutor improperly: (1) tampered with a witness s testimony to gain an advantage at trial; (2) in closing urg[ed] the jury to consider [defendant s] alleged failure to present evidence as evidence of guilt, and that Peralta s attorney was using smoke and mirrors; and (3) argued in closing that Chavo was an uncommon nickname. Because no timely objection was made, Peralta must show fundamental, prejudicial error. State v. Henderson, 210 Ariz. 561, 568, ¶¶ 23, 26, 115 P.3d 601, 608 (2005). ¶10 Prosecutorial misconduct is not the result of legal error, mistake, rather, negligence constitutes or insignificant intentional conduct impropriety which the but, prosecutor knows to be improper and prejudicial, and which he pursues for any improper purpose with indifference to a significant resulting danger of mistrial. State v. Aguilar, 217 Ariz. 235, 238-39, ¶ 11, 172 P.3d 423, 426-27 (App. 2007) (quoting Pool v. Superior Court, 139 Ariz. 98, 6 108-09, 677 P.2d 261, 271-72 (1984)). Prosecutorial misconduct constitutes fundamental error only when it is so egregious as to deprive the defendant of a fair trial, State v. Woody, 173 Ariz. 561, 564, 845 P.2d 487, 490 (App. 1992), or so pronounced and persistent that it permeates the entire atmosphere of the trial, State v. Lee, 189 Ariz. 608, 616, 944 P.2d 1222, 1230 (1997) (citation omitted). ¶11 Peralta s witness tampering allegation arises out of whether a detective Peralta s cell could phone have records. obtained During a an warrant to interview, obtain Peralta apparently told a detective that the phone number for Chavo was on Peralta s cell phone. At trial, Peralta asked that detective whether he had obtained Peralta s cell phone records to find Chavo s phone number. The detective responded that [you] can t write a warrant unless it s part of the evidence of the crime itself. In discussing the State s objection to another question clarifying that the detective could not obtain a warrant for exculpatory evidence, the prosecutor stated he had instructed the detective to sanitize his response because his answer would have been, I can t do it because I can t get probable cause by a judge who s going to issue probable cause that there is potentially this [exculpatory] evidence. I don t have evidence of a crime actually occurring in that phone. ¶12 Instead of knowingly inducing the detective to testify falsely, A.R.S. § 13-2804(A)(2), the record shows the prosecutor 7 discussed with the detective responding truthfully in a way that sanitized from the response legal conclusions. As to Peralta s argument the detective s testimony that he had no basis for claiming the phone contained evidence of a crime was a blatant lie, Peralta made particularly firearm a at showing the given no nature structure and that of the this testimony case aggravated was false, (discharge assault). of a Moreover, Peralta vigorously cross-examined the detective on the point. Peralta has shown no prosecutorial misconduct regarding the detective s testimony. ¶13 Peralta also fails to show that the prosecutor impermissibly urged the jury to consider Peralta s failure to present evidence when questioning this detective and in closing. The superior court sustained Peralta s objections to two questions on whether anyone had provided the detective with the phone records. The court later denied Peralta s motion for mistrial on grounds of burden-shifting, correctly finding the State s question about whether the detective had received any information about Chavo s phone number after Peralta s arrest did not shift the burden of proof. 6 The record is consistent with 6 Peralta s summary argument that the prosecutor engaged in misconduct by suggesting that defendant had not produced any phone records when the prosecutor had them is not supported by the record. This issue arose after the detective testified he had not received any information about Chavo s phone number following Peralta s arrest. In moving for a mistrial on burden8 these rulings and does not support Peralta s prosecutorial misconduct claim. ¶14 Peralta also claims burden shifting by the prosecutor referring, in closing argument, to the absence of any evidence on Chavo s whereabouts; by suggesting that Peralta could have called Chavo to testify (if he existed) and by arguing that Peralta had subpoena power to compel Chavo s testimony. Contrary to these arguments, a prosecutor may properly comment upon the defendant s failure to present exculpatory evidence, so long as the comment is not phrased to call attention to the defendant s own failure to testify. State v. Fuller, 143 Ariz. 571, 575, 694 P.2d 1185, 1189 (1985); State v. Sarullo, 219 Ariz. 431, 437, ¶ 24, 199 P.3d 686, 692 (App. 2008). Under this standard, the prosecutor did not engage in misconduct in addressing the lack of evidence regarding Chavo. ¶15 misconduct Similarly, in the Peralta State s has closing not shown argument that prosecutorial Peralta was using smoke and mirrors to distract the jury. Parties have wide latitude in presenting closing arguments. State v. Jones, 197 Ariz. 290, 305, ¶ 37, 4 P.3d 345, 360 (2000). Although it is shifting grounds, Peralta told the superior court that he had disclosed to the State phone records showing text messages between Peralta and M.C. Peralta, however, did not suggest that Chavo s phone number -- the sole issue on appeal with respect to the phone records -- was highlighted in the text messages he produced, or that phone records (other than text messages) had been produced to the State. 9 improper to attack the integrity of counsel, it is not improper to tell the jury that an adversary s closing argument is attempting to confuse the issues or is misleading. See State v. Hughes, 193 Ariz. 72, 85, ¶ 59, 969 P.2d 1185, 1198 (1998) ( Jury argument opposing counsel that is impugns . . . the integrity improper. ); or honesty United of States v. Sayetsitty, 107 F.3d 1405, 1409 (9th Cir. 1997) ( Criticism of defense theories and tactics is a proper subject of closing argument. ). ¶16 the For the most part, the prosecutor s argument disputed defense theory, not defense counsel s integrity. In rebuttal, however, the prosecutor did make a statement that may be read to question defense counsel s integrity: the prosecutor argued to the jury that Peralta s counsel focused on insignificant inconsistencies because that s what he s supposed to do. He s got to represent his client. He can t point the finger doesn t at his client corroborate because what his he knows client the said. physical On this evidence record, although improper, this isolated statement did not constitute prosecutorial misconduct as defined in Aguilar. 217 Ariz. at 238-39, ¶ 11, 172 P.3d at 426-27. ¶17 Finally, Peralta argues the prosecutor improperly argued that Chavo was an unusual nickname. The prosecutor argued the nickname was unusual in urging the jury to draw a reasonable 10 inference -- that Peralta s story about Chavo was an attempt to deflect blame from himself, not realizing that the police officer was aware that Peralta s nickname was Chavo. Even in the absence of the prosecutor s argument, a reasonable jury could find it unlikely that two friends would use the same nickname. Finally, and in any event, the court instructed the jury that the lawyers arguments were not evidence. Peralta has not shown the prosecutor s argument that Chavo was an unusual nickname was error. CONCLUSION ¶18 Peralta s convictions and sentences are affirmed. /S/_______________________________ SAMUEL A. THUMMA, Judge CONCURRING: /S/_____________________________ MAURICE PORTLEY, Presiding Judge /S/_____________________________ DONN KESSLER, Judge 11

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.