Opinion
1 CA-CR 12-0025
02-14-2013
STATE OF ARIZONA, Appellee, v. ANASTASIA BAKER, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section And Adriana M. Zick, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Margaret M. Green, Deputy Public Defender Attorneys for Appellant
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
MEMORANDUM DECISION
(Not for Publication -
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2010-165153-001
The Honorable Cari A. Harrison, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
And Adriana M. Zick, Assistant Attorney General
Attorneys for Appellee
Phoenix James J. Haas, Maricopa County Public Defender
By Margaret M. Green, Deputy Public Defender
Attorneys for Appellant
Phoenix OROZCO, Judge ¶1 Anastasia Baker (Defendant), appeals from her conviction on one count of second degree murder. She argues that (1) the trial court erred in denying her Rule 20 motion for judgment of acquittal, and (2) prosecutorial misconduct deprived her of a fair trial. For reasons set forth below, we affirm.
Rule 20 of the Arizona Rules of Criminal Procedure.
FACTS AND PROCEDURAL HISTORY
We view the evidence in the light most favorable to sustaining the jury's convictions and resolve all reasonable inferences against defendant. State v. Manzanedo, 210 Ariz. 292, 293, ¶ 3, 110 P.3d 1026, 1027 (App. 2005).
¶2 On December 12, 2010, Defendant was staying at her grandmother's apartment in Phoenix along with her grandmother; her uncle; her child; her boyfriend, Kenneth; and her friend, Cynthia, with whom Defendant was also having a relationship. Defendant and Cynthia were drinking and arguing. ¶3 At some point during the evening, Kenneth went outside to smoke. When he returned, Defendant and Cynthia were "drinking beers," "being loud" and arguing. Cynthia remarked to Kenneth that Defendant was "messing around with a guy upstairs or something like that," and Defendant told Kenneth to "ignore it." Kenneth assured Defendant that he was not listening to Cynthia and he ignored her remark because "they were just being drunk." Kenneth suggested to Defendant that she also ignore Cynthia and that they instead go to Defendant's bedroom, put the child to sleep and watch a movie. ¶4 As the two walked towards Defendant's bedroom with the child, Cynthia "said something" to Defendant that Kenneth could not remember but prompted Defendant to respond, "excuse me, what did you just say?" Kenneth thought that they were "going to start boxing," and proceeded to take the child into the bedroom because he "didn't want the [child] to see anything like that." ¶5 Kenneth was in the bedroom with the child a "few minutes," trying to put the child to bed because he "didn't want her to see her mom fighting." While he was in the bedroom he continued to hear "a bunch of arguing." When the child refused to stay in bed, Kenneth picked her up and walked out into the hallway, where he saw Cynthia lying on her back "in the entrance of the hallway." He saw Defendant "standing there by the counter" with blood "all over . . . her . . . everywhere," including Defendant's clothing. Kenneth believed that Cynthia had been "stabbed," but he saw no weapon in Defendant's hands. ¶6 Defendant took the child from Kenneth's arms and immediately left the apartment without saying anything. Kenneth started yelling for "someone [to] call the police" and actually dialed 911, but relinquished the telephone to Defendant's grandmother because he could not remember the apartment address. ¶7 Kenneth "[g]ot scared" because he had "never seen a dead body." He left the apartment and ran approximately "a block and a half" to his friend Greg's apartment where he informed Greg, "[s]omething happened . . . [Defendant's] friend's lying in a pool of blood." Greg advised Kenneth to return to the apartment, and Greg took him back to the complex within minutes. ¶8 Police officers were at the apartment when Kenneth returned, and they attempted to keep him away from the crime scene when Kenneth approached them. After Kenneth explained that he had been in the apartment, the police placed him in investigative detention. ¶9 An officer who was maintaining a perimeter at the apartment building saw a woman matching Defendant's description come around the corner of the building. The woman was carrying a small child, and she and the child were wrapped in a white blanket. When the officer contacted the woman, she identified herself to him by name and told him that "she had been out in the cold for a while." The officer noticed that Defendant had a laceration "on the back of her left arm." Although it was cold out, Defendant wore only light pajama bottoms, a tank top, and socks. The bottoms of her pajama pants appeared to have "drops of dried blood" on them. ¶10 Inside the apartment, police found Defendant's grandmother in a wheelchair in the hallway and Cynthia "slumped over in the hallway [] in front of her." Cynthia was "[lying] in a pool of blood" and appeared to have "a large laceration up on the left side of her neck and one on the left side of her back." An officer checked her for a pulse and found none. The officers located a knife with a bent blade in the vicinity of the victim's body. The medical examiner later determined the cause of Cynthia's death to have been "[m]ultiple stab wounds." ¶11 The State charged Defendant with one count of second degree murder, a class one dangerous felony. Defendant used testimony elicited from the officers and Kenneth's friend Greg, who testified as a defense witness, to suggest that the police had done a poor job of investigating the crime and that either a third party or Kenneth was responsible for the murder. ¶12 The jury found Defendant guilty as charged. The trial court sentenced Defendant to a prison term of sixteen years (flat time), and Defendant timely appealed. We have jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes (A.R.S.) sections 12-120.21.A.1 (2003), 13-4031 (2010) and -4033 (2010).
The victim suffered three stab wounds, two in the left shoulder and neck area and one to the back. The fatal wound was likely one of the wounds to the left shoulder/neck because it "went through" the right subclavian artery, "one of the major arter[ies] of the body" and also through the upper lobe of the right lung. It also appears that the knife wound to the back was "deflected by the spine."
The record indicates that police were also called to the apartment complex at roughly the same time to investigate a call regarding a problem at another apartment. Also, Kenneth testified that he believed that Defendant's uncle was in a bedroom at the time of the stabbing, but when police entered and cleared the apartment they found only the victim and Defendant's grandmother inside.
DISCUSSION
Denial of Rule 20 Motion
¶13 At the end of the State's case, defense counsel moved for a directed verdict, arguing that there was not enough evidence to prove that Defendant actually caused Cynthia's death because there were "no fingerprints, no DNA, no footprints, and no confession." The trial court denied the motion; finding that the State had presented "substantial evidence" that Defendant committed the crime and Defendant's arguments concerned "factual determinations that the jury will have to weigh in reaching a decision in this case." On appeal, Defendant renews her claim that the State presented insufficient evidence that she committed the crime. She maintains that the trial court therefore erred in denying her Rule 20 motion. ¶14 Our standard of review for sufficiency of the evidence is de novo. State v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191 (2011) (citing State v. Bible, 175 Ariz. 549, 595, 858 P.2d 1152, 1198 (1993)). We view the evidence at trial in the light most favorable to sustaining the jury's verdict. Bible, 175 Ariz. at 595, 858 P.2d at 1198. We neither reweigh the trial evidence, State v. Lee, 189 Ariz. 608, 615, 944 P.2d 1222, 1229 (1997), nor reassess the credibility of witnesses, because credibility is strictly a jury determination. State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996). We also resolve any conflicts in the evidence in favor of sustaining the verdict. State v. Girdler, 138 Ariz. 482, 488, 675 P.2d 1301, 1307 (1983). ¶15 "Substantial evidence, Rule 20's lynchpin phrase, is such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." West, 226 Ariz. at 562, ¶ 16, 250 P.3d at 1191 (internal quotations and citations omitted). Both direct and circumstantial evidence are considered in determining whether substantial evidence supports a conviction, id. , and "if reasonable minds can differ on inferences to be drawn therefrom," a trial court must submit the matter to the jury. State v. Landrigan, 176 Ariz. 1, 4, 859 P.2d 111, 114 (1993). The mere existence of an inference of innocence does not mandate a directed verdict of acquittal. State v. Ortiz, 9 Ariz. App. 116, 118, 449 P.2d 953, 955 (1969). ¶16 Therefore, a trial court shall enter a judgment of acquittal if "no substantial evidence supports the conviction," State v. Davolt, 207 Ariz. 191, 212, ¶ 87, 84 P.3d 456, 477 (2004), and reversal on appeal is mandated only if we find a "complete lack of probative evidence supporting the verdict." Girdler, 138 Ariz. at 488, 675 P.2d at 1307. Because substantial evidence supports the jury's verdict in this case, the trial court did not err in denying the Rule 20 motion and reversal is not mandated on appeal. ¶17 Kenneth's testimony alone would have been sufficient evidence to withstand a Rule 20 motion in this case; however the record contains additional evidence that supports the jury's finding of guilt. A forensic analysis of the blood stains on Defendant's pants, tank top, and bra matched the victim's DNA. The knife that was deemed to be the murder weapon was found in the kitchen/hallway area of the apartment in the proximity of the victim's body. A forensic analysis of the knife handle revealed a "mixed DNA profile" with "at least three people present"; and, while the analyst could exclude Kenneth's and Defendant's grandmother's DNA from the mixture, she could not exclude Defendant or the victim. The evidence at trial also established that Defendant had a stab wound to the upper part of her left arm. Defendant's wound was inconsistent with a "defensive wound" but consistent with the type of injury often incurred in a "follow through" due to the force needed to "force a knife blade into a human body." ¶18 Defendant argues that the evidence is insufficient because the State presented no eyewitness who could actually testify that he or she saw Defendant kill Cynthia. However, circumstantial evidence - that Cynthia and Defendant were arguing when Kenneth went into the bedroom and that, minutes later, when Kenneth came out of the bedroom, Cynthia was on the floor, stabbed and in a pool of blood with Defendant nearby covered in blood - is sufficient to sustain the inference that Defendant was the person who stabbed her. In her opening brief, Defendant surmises that sufficient time could have passed while Kenneth was in the bedroom "that another person could have entered the apartment" and stabbed the victim, but Kenneth testified that he was only in the bedroom "a few minutes," and there was no evidence presented to suggest any unknown person entered the apartment in that time period. ¶19 Defendant also argues that it is unclear who of the two women was the "aggressor" and that "the evidence does not support a motive" for her to have killed the victim. However, the testimony about Cynthia's upsetting comment to Defendant and Defendant's reaction to it prior to Kenneth's leaving with the child undermines these arguments. Furthermore, while evidence of motive may be relevant, the State does not have to prove motive as an element of the crime of murder. State v. Hunter, 136 Ariz. 45, 50, 664 P.2d 195, 200 (1983). ¶20 We find that the State presented substantial evidence to support Defendant's conviction. Therefore, the trial court did not err in refusing to grant the Rule 20 motion.
State v. Mathers, 165 Ariz. 64, 796 P.2d 866 (1990), on which Defendant relies for her insufficiency argument and which Defendant characterizes as "similar" to this case, is based on a factual scenario that is quite different. Mathers also involved a murder; however the defendant there was one of three co-defendants allegedly involved in the killing. 165 Ariz. at 64-65, 796 P.2d at 866-67. In Mathers, two armed men forced their way into a home and seriously wounded one and shot and killed another of its residents. Id. at 65-66, 796 P.2d at 867-68. No one was able to positively identify the defendant as one of the two intruders and "[n]othing in the record or any reasonable inference drawn therefrom" placed the defendant "at or in" the home. Id. at 69-70, 644 P.2d at 871-72. Based on this and the fact that apparently no "additional evidence" presented by the state established the defendant's involvement as one of the two men who entered the home, our supreme court found the evidence insufficient to sustain the conviction. Id. at 70, 644 P.2d at 872. In this case, Defendant was seen and heard fighting with the victim moments before the murder occurred and was seen standing near the victim, covered in the victim's blood, as the victim lay dying.
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Prosecutorial Misconduct
¶21 Defendant next argues that the prosecutor committed misconduct during her closing argument when she referred to "facts not in evidence." Defendant acknowledges that she did not raise this objection before the trial court and that we are limited to review for fundamental error on appeal. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) (fundamental error review applies when a defendant fails to object to alleged error at trial). The burden is therefore on Defendant to prove both that fundamental error occurred and that the error caused her prejudice. Id. at ¶ 20, 115 P.3d at 607. ¶22 Fundamental error is "error 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." State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). However, before we engage in fundamental error review, we must first find that the trial court committed some error. State v. Lavers, 168 Ariz. 376, 385, 814 P.2d 333, 342 (1991). ¶23 In this case, Defendant fails to show that prosecutorial misconduct occurred. Therefore, she fails to prove that any error, let alone fundamental error, occurred. ¶24 To determine if prosecutorial misconduct warrants a mistrial, we must first determine whether, as Defendant argues, the prosecutor's closing statements called to the jury's attention evidence that it should not have considered in reaching its decision. State v. Newell, 212 Ariz. 389, 402, ¶ 60, 132 P.3d 833, 846 (2006). Furthermore, "any improper comments must be so serious that they affected the defendant's right to a fair trial." Id. at 403, ¶ 67, 132 P.3d at 847. ¶25 The basis for Defendant's prosecutorial misconduct argument derives from a single statement that the prosecutor inadvertently elicited from Greg, a defense witness, during cross examination. In response to the prosecutor's questions, Greg testified that Kenneth appeared at his apartment on the night of the murder "visibly shaken" and that Greg "talk[ed] to him about why he was there." The prosecutor next asked Greg, "[b]ased on your conversation with him, what was your response?" clearly intending to elicit the fact that Greg had driven Kenneth back to the scene of the crime. Instead, Greg incongruously answered, "[t]hat his girlfriend just murdered someone, stabbed them three times." Defense counsel properly objected to Greg's answer as "hearsay," and the trial court properly ordered the answer stricken "as nonresponsive to the question." ¶26 Later, during her closing argument, the prosecutor stated:
[Kenneth] said he tried to call 911, couldn't get out the address, gave the phone to [Defendant's] grandmother, and left. He went to his friend's house. And that friend testified today, Gregory [], that in fact Kenneth came to his house, pounding on his door, upset, visibly shaken about his girlfriend, who murdered a girl in the apartment. He indicated that his friend was -- he had to go back. Greg [] told you that he told Kenneth, you need to go back. So Kenneth goes back to the apartment, transported by what [sic] you heard today, Gregory []. (Emphasis added.)¶27 Defendant argues that the prosecutor's statement, "who murdered a girl in the apartment," was "overreaching" and clearly encouraged the jury to consider the testimony that had been stricken. Defendant argues that the misconduct constitutes fundamental error in her case because the improper argument was "inflammatory" and also gave the jury the impression that Kenneth actually saw Defendant murder the victim when Kenneth testified that he had not. ¶28 However, these arguments ignore the fact that Kenneth testified, without objection that: he believed that Cynthia had been "stabbed"; when he emerged from the bedroom, he saw Cynthia "[lying] there in a pool of blood" and Defendant standing nearby with blood "[a]ll over her"; he had "never seen a dead body, so [he] got scared and [he] ran"; and he told Greg "dude, something happened . . . [Defendant's] friend's [lying at the apartment] in a pool of blood." The arguments also ignore police testimony that, when they arrived at the apartment shortly after the stabbing, the victim had no pulse. While it was clear from his testimony that Kenneth had not witnessed the actual stabbing, the permissible inferences to be drawn from this testimony are that Defendant murdered Cynthia while Kenneth was in the bedroom with the child. Thus, based on the above trial evidence, even without the stricken testimony, it was permissible for the prosecutor to argue to the jury that Kenneth was "visibly shaken" by the fact that "his girlfriend had murdered a girl in the apartment." "Wide latitude is given in closing arguments and counsel may comment on the evidence and argue all reasonable inferences therefrom." State v. Zaragoza, 135 Ariz. 63, 68, 659, P.2d 22, 27 (1983). Nor do we find the statement to be particularly "inflammatory." ¶29 Because the challenged statement was permissible argument based on reasonable inferences drawn from admitted trial evidence, the prosecutor did not engage in misconduct by including it in her closing argument. Defendant has therefore failed to prove that the State committed any error, let alone fundamental error requiring reversal.
CONCLUSION
¶30 For the foregoing reasons, we affirm Defendant's conviction and sentence.
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PATRICIA A. OROZCO, Judge
CONCURRING: ________
MAURICE PORTLEY, Presiding Judge
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RANDALL M. HOWE, Judge