Opinion
No. 2 CA-CR 2013-0250
10-10-2014
THE STATE OF ARIZONA, Appellee, v. MARIO RAMON-ANTONIO ACEDO, Appellant.
COUNSEL Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Myles A. Braccio, Assistant Attorney General, Phoenix Counsel for Appellee Barton & Storts, P.C., Tucson By Brick P. Storts, III Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
No. CR20110731001
The Honorable Howard Hantaan, Judge
AFFIRMED
COUNSEL Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Myles A. Braccio, Assistant Attorney General, Phoenix
Counsel for Appellee
Barton & Storts, P.C., Tucson
By Brick P. Storts, III
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Howard and Judge Vásquez concurred. KELLY, Presiding Judge:
¶1 Mario Acedo appeals his convictions and sentences for first-degree murder, aggravated assault, and two counts each of armed robbery and kidnapping, all designated dangerous offenses. He argues the trial court erred by failing to suppress the fingerprints taken when he was booked, insufficient evidence supported his convictions, and the state improperly vouched for its case. For the following reasons, we affirm Acedo's convictions and sentences.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to sustaining Acedo's convictions. See State v. Mangum, 214 Ariz. 165, ¶ 3, 150 P.3d 252, 253 (App. 2007). In August 2010, C.V. and C.M. drove to a parking lot near 36th Street and Country Club Road in Tucson to purchase marijuana from Aerath Hubert. Hubert had told C.V. that his friend would contact C.V. about the sale. When Hubert's friend telephoned, C.V. told him they had arrived at the parking lot and were in a white car. Acedo then ran to C.V.'s car and got into the passenger-side back seat. Acedo "pulled out a gun from his waist" and yelled, "This is a jack. What you got?" Acedo ordered C.V. to "shut off the car," and C.V. complied, leaving the keys in the ignition.
¶3 When Acedo could not get out of the car due to a broken door handle, he ordered C.M. to get out and open his door. C.M. opened the rear passenger-side door for Acedo and then got back into the car. Acedo got out of the car, approached the front passenger-side window, pointed his gun at C.V. and C.M., and again demanded "stuff," including C.V.'s cellular telephone, which C.V. gave him. Another man, Jarrett Carter, then ran up to the driver's window and struck it twice, shattering it. When Carter attempted to grab the car keys from the ignition, C.V. started to drive away. Acedo fired his gun, striking the front passenger-side fender and C.M. Acedo continued to fire at C.V.'s car as he drove away. C.V. drove C.M. to the hospital, where C.M. died due to blood loss from his numerous injuries.
¶4 Police technicians obtained thirteen fingerprint "lifts" from C.V.'s vehicle, including the outside passenger-side rear window. Officers also found a cellular telephone in the back of C.V.'s vehicle, which C.V. stated did not belong to him or C.M. Using data retrieval programs, Detective William Hanson discovered that calls had been made from the phone to both Hubert and C.V. immediately before C.M. was shot.
¶5 When a text message later appeared on that cellular telephone offering another cellular telephone for sale, Hanson, posing as a potential buyer, set up a meeting to complete the purchase with M.C., the person who had sent the text. At the meeting, Hanson identified himself as a police officer and compared numbers in the phone recovered from C.V.'s car with M.C.'s personal cellular telephone. He discovered that the number of the phone found in C.V.'s car was stored in M.C.'s phone as "Mario," and M.C.—who knew Acedo—admitted to having personally entered Acedo's number into his own phone under that name.
¶6 Hanson arrested Acedo in January 2011 in Austin, Texas, based on a probation violation stemming from a prior felony conviction. Acedo's fingerprints were taken when he was booked on the probation violation charges. When Hanson compared those fingerprints to the fingerprint "lifts" from C.V.'s car, Acedo's fingerprint matched one that had been found on the "exterior of the right rear door" of C.V.'s vehicle.
¶7 Acedo was charged as set forth above and, after a jury trial, was found guilty of all counts. The trial court found that Acedo had been on release at the time of the crimes. The court sentenced Acedo to concurrent sentences, the longest of which was a term of imprisonment of life without the possibility of release for twenty-five years. Acedo timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Discussion
Motion to Suppress Fingerprints
¶8 Acedo first argues the trial court erred by denying his motion to suppress the fingerprints taken while he was being held on his parole violation in relation to a separate felony, urging that the taking of his prints violated "his right to due process and equal protection under the law." We review the court's ruling on the admissibility of evidence for an abuse of discretion, State v. King, 213 Ariz. 632, ¶ 7, 146 P.3d 1274, 1277 (App. 2006), but review de novo its legal conclusions, State v. Newell, 212 Ariz. 389, ¶ 27, 132 P.3d 833, 841 (2006). We will not disturb the court's ruling "'absent a clear abuse of its considerable discretion.'" State v. Davis, 205 Ariz. 174, ¶ 23, 68 P.3d 127, 131 (App. 2002), quoting State v. Alatorre, 191 Ariz. 208, ¶ 7, 953 P.2d 1261, 1264 (App. 1998). When reviewing the denial of a motion to suppress, we consider only the evidence presented at the suppression hearing and view it in the light most favorable to upholding the court's ruling. State v. Caraveo, 222 Ariz. 228, n.1, 213 P.3d 377, 378 n.1 (App. 2009).
¶9 Acedo's fingerprints were taken when he was booked into the Pima County jail after Hanson detained him for his probation violation. When Hanson sought to compare the fingerprints taken at the jail to those found on C.V.'s vehicle, however, he realized that the "electronic" fingerprints "weren't legible or they weren't good enough for the[] print examiner to look at." Hanson thus asked Lieutenant Sean Stewart, who is responsible for booking and identifying detainees at the jail, to take Acedo's "major prints," which are "more in-depth" than electronic prints and, in addition to the basic ten finger prints taken in electronic fingerprinting, include the print from the tip of the finger down to the wrist. Stewart's staff—who "were all very new at [taking fingerprints]"—took a second set of Acedo's fingerprints using this method, and then a third set when they were "still not good enough." When the fingerprints still were not legible—due to what Stewart later realized was Acedo's "sweaty fingers and sweaty hands"—Stewart requested that a fingerprint specialist from the police department take the prints. The specialist then obtained legible fingerprints.
¶10 Before trial, Acedo filed a motion to suppress his fingerprints, arguing that officers had violated his Fourth Amendment rights by taking them on multiple occasions without a warrant "prior to [him] being charged" in this case. The state responded that because Acedo was being held in custody on a probation violation charge—which would warrant taking his fingerprints as a matter of routine booking procedure—no further authority was needed. Following a hearing, the trial court denied Acedo's motion, concluding there had been no statutory or Fourth Amendment violation.
¶11 On appeal, Acedo maintains that his fingerprints were sought "for purely investigative purposes," and that the state—by failing to get a warrant—"circumvent[ed]" the law in collecting the fingerprints, "in violation of [his] Fourth Amendment rights." This evidence, he claims, "supplied probable cause for [his] arrest by creating a nexus between [his] and the victims' vehicle." Because the state had "little else" upon which to convict him, he urges his convictions should be reversed.
¶12 Acedo was arrested and booked into the Pima County jail for violating the term of probation imposed for a prior felony conviction. His fingerprints were taken by jail personnel as part of the standard booking procedure. See Maryland v. King, ___ U.S. ___, ___, 133 S. Ct. 1958, 1976 (2013) (fingerprinting a natural part of administrative process incident to arrest); accord County of Riverside v. McLaughlin, 500 U.S. 44, 58, 111 S. Ct. 1661, 1670-71 (1991) ("administrative steps incident to arrest" include a suspect being "booked, photographed, and fingerprinted"). As the Supreme Court has noted, this practice comports with "'the legitimate interest of the government in knowing for an absolute certainty the identity of the person arrested, in knowing whether he is wanted elsewhere, and in ensuring his identification in the event he flees prosecution.'" King, ___ U.S. at ___, 133 S. Ct. at 1977, quoting 3 Wayne R. LaFave, Search and Seizure § 5.3(c), at 216 (5th ed. 2012).
¶13 Acedo maintains "[t]here was absolutely no need for the prints to be taken the second and third times" because there was "no security risk at the jail." But the state has legitimate reasons for obtaining legible prints and where, as here, the prints are illegible, we see no harm in repeating the fingerprinting process. Cf. A.R.S. § 13-3890(A), (C) (fingerprints taken by arresting authority or custodial agency "shall be . . . in legible form" and "retained indefinitely").
¶14 Acedo also has failed to establish that fingerprints taken while a defendant is booked and held on one charge may not be used for investigative purposes in another crime. Such fingerprints properly may be used "to identify perpetrators of past and future crimes or to exonerate innocent persons." In re Leopoldo L., 209 Ariz. 249, ¶ 21, 99 P.3d 578, 583 (App. 2004). Because the state properly collected those fingerprints and because the government has legitimate reasons for obtaining legible and usable prints, we conclude it was not a violation of Acedo's Fourth Amendment rights to take his fingerprints when he was booked, to repeat the process to ensure the legibility of those fingerprints, or to use those fingerprints in the investigation of another crime.
To the extent Acedo argues the state "was able to manipulate the results of the fingerprints until they found a way of saying that there was a fingerprint supporting the fact that [Acedo] was present at the scene of this incident," he has provided no authority or further explanation as to how the state would have done so. Because Acedo has failed to develop this argument, and because of the reliability of fingerprint matching, see State v. Favela, 234 Ariz. 433, ¶ 12, 323 P.3d 716, 719-20 (App. 2014), we see no merit to this contention, see Ariz. R. Crim. P. 31.13(c)(1)(vi); State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995).
Right to Counsel
¶15 Acedo suggests his right to counsel was violated when he "was not afforded the right to consult with his counsel at the time [his fingerprints were taken, which] . . . implicate[s his] Sixth Amendment right." But Acedo has not alleged that he received improper Miranda warnings, nor that he requested and was improperly denied counsel following his detention. And he has provided no authority or argument for the proposition that a detainee is entitled to consult with counsel when his fingerprints are taken as part of routine booking procedure, or at any time thereafter to ensure legibility. We thus do not consider this argument further. See Ariz. R. Crim. P. 31.13(c)(1)(vi) (appellate brief "shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on"); State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) (issue waived when argument insufficient to permit appellate review).
Miranda v. Arizona, 384 U.S. 436 (1966).
Equal Protection
¶16 Similarly, Acedo claims he was "denied his equal protection under the law" because taking his fingerprints "b[ore] no rational connection to any legitimate penological interest [and did not] relate to the security of the jail." But aside from citing the legal standard of review for an equal protection claim, Acedo again has failed to provide any authority or argument sufficient to afford us the opportunity for meaningful review. For example, he has failed to identify the class of individuals to which he purports to belong or the fundamental right allegedly being infringed upon—concepts which generally form the basis of an equal protection challenge. See generally Big D Constr. Corp. v. Ct. of Appeals, 163 Ariz. 560, 565-66, 789 P.2d 1061, 1066-67 (1990); Turner v. Safley, 482 U.S. 78, 89-90 (1987). We thus do not address this argument. See Ariz. R. Crim. P. 31.13(c)(1)(vi); Bolton, 182 Ariz. at 298, 896 P.2d at 838.
Sufficiency of the Evidence
¶17 Acedo next argues the trial court erred by denying his Rule 20, Ariz. R. Crim. P., motion for judgment of acquittal because there was insufficient evidence to support his convictions. We review de novo a trial court's denial of a motion for a judgment of acquittal, "viewing the evidence in a light most favorable to sustaining the verdict," State v. Bible, 175 Ariz. 549, 595, 858 P.2d 1152, 1198 (1993), and "resolv[ing] all inferences against the defendant," State v. Davolt, 207 Ariz. 191, ¶ 87, 84 P.3d 456, 477 (2004).
¶18 A Rule 20 motion for judgment of acquittal shall be granted by the superior court when no substantial evidence warrants a conviction. Ariz. R. Crim. P. 20(a); Davolt, 207 Ariz. 191, ¶ 87, 84 P.3d at 477. "Substantial evidence is more than a mere scintilla and is such proof that 'reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt.'" State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990), quoting State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980). If reasonable people "could differ on the inferences to be drawn from the evidence, the motion for judgment of acquittal must be denied." State v. Sullivan, 205 Ariz. 285, ¶ 6, 69 P.3d 1006, 1008 (App. 2003).
¶19 Ample evidence supported Acedo's convictions. Acedo's fingerprint matched a fingerprint found on the rear passenger-side door of C.V.'s car. The location of this fingerprint was consistent with C.V.'s description of the offenses, and Acedo provided no alternative explanation for the presence of his fingerprints. Cf. State v. Spain, 27 Ariz. App. 752, 754, 558 P.2d 947, 949 (1976) ("[A]ppellant's fingerprints were not found in a place and under circumstances where they could have been made at a time other than the time of the commission of the offense."); see also State v. Brady, 2 Ariz. App. 210, 213, 407 P.2d 399, 402 (1965) ("It is well established in our state that a crime may be proven by circumstantial evidence alone, and that fingerprints are a means of positive identification by which a defendant may be linked with the commission of the offense.").
¶20 C.V. heard a noise from a cellular telephone while Acedo was in the back seat of his car, and M.C. identified the phone found there as Acedo's. M.C. knew Acedo and had personally entered Acedo's first name and phone number into his own phone. Calls had been made on Acedo's phone before the shooting to both Hubert and C.V.
Acedo claims the trial court erred by not allowing him to introduce evidence that third parties were the true owners of the phone. He maintains this ruling confused the jury as to the phone's ownership and potential third-party culpability. However, both Acedo and the state had the opportunity to fully examine the persons whom Acedo alleged were the true owners of the phone, and both witnesses stated the phone had been lost or stolen from them prior to these offenses.
¶21 Finally, the prisoner with whom Acedo shared a cell in the jail, B.C., testified that Acedo had told him about the shooting. This included Acedo's statements that he "should have shot that [guy] in the head," apparently referring to C.V., his description and imitation of the driver looking "real scared when he was trying to get away," and his "chas[ing] after the car . . . shooting after the driver." Acedo also told B.C. that the state's only incriminating evidence was "a little bullshit fingerprint." The trial court did not err by denying Acedo's motion for judgment of acquittal. See Ariz. R. Crim. P. 20(a); Davolt, 207 Ariz. 191, ¶ 87, 84 P.3d at 477.
Prosecutorial Misconduct
¶22 Acedo argues the state committed prosecutorial misconduct by "improperly vouch[ing] for its case." Because Acedo did not object to this alleged misconduct at trial, he has forfeited review for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005). Fundamental error is that "'going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial.'" Id. ¶ 19, quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). Acedo has the burden of showing both that the error was fundamental and that it caused him prejudice. See id. ¶¶ 19-20.
¶23 Prosecutorial misconduct by vouching occurs in two circumstances: when the state places governmental prestige behind its evidence or witnesses, and when a prosecutor suggests that its evidence is supported by information not presented to the jury. Newell, 212 Ariz. 389, ¶ 62, 132 P.3d at 846, citing State v. Vincent, 159 Ariz. 418, 423, 768 P.2d 150, 155 (1989); see also Bible, 175 Ariz. at 601, 858 P.2d at 1204. Additionally, an attorney is "'prohibited from asserting personal knowledge of facts in issue before the tribunal unless he testifies as a witness.'" Bible, 175 Ariz. at 601, 858 P.2d at 1204, quoting State v. Dumaine, 162 Ariz. 392, 401, 783 P.2d 1184, 1193 (1989).
¶24 Counsel is given wide latitude in closing arguments, however, and may comment on evidence and argue all reasonable inferences therefrom. See State v. Jones, 197 Ariz. 290, ¶ 37, 4 P.3d 345, 360 (2000) (prosecutors afforded wide latitude in presenting closing arguments to jury); State v. Gonzales, 105 Ariz. 434, 437, 466 P.2d 388, 391 (1970) (closing arguments "not evidentiary in nature"; counsel permitted to comment on evidence already introduced and argue reasonable inferences). For prosecutorial misconduct to qualify as fundamental error, the error must be "'so pronounced and persistent that it permeates the entire atmosphere of the trial.'" State v. Harrod, 218 Ariz. 268, ¶ 35, 183 P.3d 519, 529 (2008), quoting State v. Hughes, 193 Ariz. 72, ¶ 26, 969 P.2d 1184, 1191 (1998).
¶25 Acedo identifies thirteen statements by the prosecutor that he claims constitute prosecutorial vouching. These include statements summarizing evidence presented at trial or rebutting defense theories based on inferences drawn from the evidence, and hypothetical scenarios suggesting reasonable conclusions that could be drawn from the evidence. Acedo claims these statements "disparaged the defense" and cumulatively acted to deprive him of a fair trial.
¶26 But aside from listing the prosecutor's statements and insisting that the state "vouched for its case to the point where it denied [Acedo] his right to due process of law," Acedo has failed to provide any argument or authority that these statements constitute improper vouching. Nor has he provided any authority for the proposition that a prosecutor may not summarize evidence, suggest reasonable inferences to be drawn from the evidence, or comment on the defense theory of the case. Indeed, as outlined above, Arizona law takes the contrary position. See Jones, 197 Ariz. 290, ¶ 37, 4 P.3d at 360; Gonzales, 105 Ariz. at 437, 466 P.2d at 391. Because Acedo has failed to sufficiently develop his claims, and because our review of the prosecutor's statements does not reveal prosecutorial vouching—let alone vouching rising to the level of fundamental error—we see no merit in this argument. See Ariz. R. Crim. P. 31.13(c)(1)(vi); Bolton, 182 Ariz. at 298, 896 P.2d at 838.
In one example, Acedo alleges the prosecutor was vouching when she stated that C.M. "bled out"; yet this is a verbatim quote from the forensic pathologist, who testified C.M. had died from blood loss. Another example given of alleged vouching is the prosecutor's statement that it was "pretty clear these events happened," referring to C.V. and C.M. being robbed and having a gun pointed at them. Acedo did not establish that the prosecutor, by making either statement, was "plac[ing] the prestige of the government behind" her evidence or witnesses, or "suggest[ing] that information not presented to the jury supports the evidence." See Newell, 212 Ariz. 389, ¶ 62, 132 P.3d at 846.
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Disposition
¶27 For the foregoing reasons, we affirm Acedo's convictions and sentences.