Opinion
No. 1 CA-CR 12-0753
02-27-2014
STATE OF ARIZONA, Appellee, v. BILLY RAY HUDSON, Appellant.
Arizona Attorney General's Office, Phoenix By Colby Mills Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Kathryn L. Petroff Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. CR2010-166831-001 SE
The Honorable Karen A. Mullins, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Colby Mills
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Kathryn L. Petroff
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Kent E. Cattani delivered the decision of the Court, in which Judge Margaret H. Downie and Judge Michael J. Brown joined.
¶1 Billy Ray Hudson appeals his conviction and resulting sentence based on prosecutorial misconduct during closing argument. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 The relevant facts, viewed in the light most favorable to upholding the jury's verdict, are as follows. In December 2010, Maricopa County Sheriff's Deputies Eversole and Roberts were on route to a location of an alleged assault when they encountered Hudson, who fit the description of the suspect involved. Deputy Eversole asked Hudson for his identification and instructed him to sit on the curb. Hudson was irate and angry and refused to comply. Hudson appeared to be intoxicated, with slurred speech and a smell of alcohol. Deputy Roberts told Hudson he was under arrest and ordered him to put his hands behind his back. Hudson refused and pushed the deputy away.
¶3 Both deputies took Hudson to the ground, but Hudson struggled with them by pulling away and keeping his arm straight so the deputies could not place him in handcuffs. The deputies rolled Hudson on his stomach and handcuffed him. Even after being handcuffed and being told to stop resisting, Hudson kept trying to get up. The deputies eventually secured Hudson in a patrol car.
¶4 The State charged Hudson with one count of resisting arrest, a class 6 felony. After a three-day trial, Hudson was convicted as charged. The superior court sentenced him as a repetitive offender to a presumptive 3.75-year prison term. Hudson timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031, and -4033.
Absent material revisions after the relevant date, we cite a statute's current version unless otherwise indicated.
DISCUSSION
¶5 Hudson argues that his conviction should be set aside because the prosecutor's closing argument allegedly included three types of prosecutorial misconduct: vouching, misstating the law, and suggesting facts not supported by the evidence. Because Hudson failed to object at trial to the prosecutor's argument, our review is for fundamental error only. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). "Fundamental error" is "error going to the foundation of the case, error that takes from the defendant a right essential to his defense, [or] error of such magnitude that the defendant could not possibly have received a fair trial." Id. (citation omitted). Under this standard of review, Hudson bears the burden of establishing fundamental error as well as resulting prejudice. See id. at ¶ 20.
¶6 To prevail on a claim of prosecutorial misconduct, a defendant must show conduct that, "taken as a whole, amounts to intentional conduct which the 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) (citation omitted). Furthermore, to constitute reversible error, the misconduct must be so pronounced and persistent that it permeates the entire atmosphere of the trial, and "so infected the trial with unfairness as to make the resulting conviction a denial of due process." State v. Morris, 215 Ariz. 324, 335, ¶ 46, 160 P.3d 203, 214 (2007) (citation omitted). Instances of prosecutorial misconduct may be viewed cumulatively in determining whether reversal is required. State v. Roque, 213 Ariz. 193, 230, ¶ 164, 141 P.3d 368, 405 (2006).
¶7 Hudson claims the prosecutor engaged in impermissible vouching during closing argument by asserting that he knew Hudson was guilty. Hudson points to two particular statements: (1) "Well, in this case we already know that he's guilty," and (2) "Take him for what he is. And that is guilty." Hudson argues that the statements expressed the prosecutor's personal opinion on the issue of guilt and thereby placed the prestige of the government behind the State's witnesses. See State v. Vincent, 159 Ariz. 418, 423, 768 P.2d 150, 155 (1989) (holding prosecutor commits improper vouching by placing the prestige of the government behind a witness).
¶8 Hudson has not established improper vouching. When read in context, the challenged statements were not expressions of the prosecutor's personal opinion on the issue of guilt, but rather assertions that the evidence proved Hudson guilty. Here, the statement "we . . . know that he's guilty" was made in reference to Hudson's admission during his trial testimony that he deliberately refused to comply with the officers' orders. Although the prosecutor's use of the word "we" in his argument may be "an unfortunate word choice," see State v. White, 115 Ariz. 199, 204, 564 P.2d 888, 893 (1977), there is no reason to believe that the jury considered it as anything other than an appeal to find Hudson guilty based on the evidence presented. See id.; see also United States v. Inzunza, 638 F.3d 1006, 1024 (9th Cir. 2009) (holding use of "we know" not improper where it is used to marshal evidence rather than vouch for witness veracity or suggest that evidence not produced would support guilt).
¶9 The second statement—"Take him for what he is. . . .guilty" — was simply the prosecutor's summation at the close of his argument asking the jury for a verdict of guilt. Counsel may properly "suggest ultimate conclusions" during closing argument as long as the argument is based on evidence presented. State v. Bible, 175 Ariz. 549, 602, 858 P.2d 1152, 1205 (1993). Therefore, the prosecutor's statement that Hudson is guilty does not require reversal.
¶10 There was likewise no misstatement of the law by the prosecutor during closing argument that warrants reversal. Hudson contends the prosecutor misstated the applicable burden of proof by telling jurors they should find him guilty if they are "firmly convinced" he resisted arrest, and that for any doubt to preclude a finding of guilt, it must be a "real possibility." In making this argument, the prosecutor specifically referred the jury to the trial court's instruction on reasonable doubt and argued the language of the instruction.
¶11 Hudson's claim that the burden of proof is "beyond a reasonable doubt" and not "firmly convinced" as argued by the prosecutor does not establish a basis for relief. Our supreme court has defined "beyond a reasonable doubt" as meaning "firmly convinced" and required that jurors in criminal trials be so instructed. State v. Portillo, 182 Ariz. 592, 596, 898 P.2d 970, 974 (1995). The court further required that the reasonable doubt instruction inform jurors that a reasonable doubt exists when there is a "real possibility" that the defendant is not guilty. Id. The trial court's reasonable doubt instruction complied with Portillo, and there was no misconduct by the prosecutor in quoting and arguing the instruction.
¶12 Hudson additionally asserts the prosecutor misstated the elements of resisting arrest by suggesting that Hudson was guilty of the offense simply because he refused to comply with an officer's command to sit on the curb. But during closing argument, both the prosecutor and defense counsel discussed all four elements of the offense as set forth in the trial court's instructions. Hudson had in fact conceded that three of the four elements had been proven, and the arguments of counsel thus focused on the issue of whether the State proved the use of physical force by Hudson in resisting arrest. The prosecutor argued simply that the deciding factor on the issue of guilt was whether Hudson had used "physical force" to resist arrest as opposed to whether he was merely being uncooperative. The prosecutor did not misstate the law with respect to the elements of resisting arrest.
¶13 Nor was there any suggestion of facts not supported by the evidence in the prosecutor's closing argument. Hudson testified he was blind in one eye and used that fact in explaining his actions in dealing with the officers. Contrary to Hudson's contention, the prosecutor never insinuated in closing argument that Hudson was lying about his visual impairment. The prosecutor mentioned Hudson's blindness during closing argument, but only to argue that it should not be a factor in determining whether he was guilty of resisting arrest and that the jurors should not base their decision on sympathy for Hudson's visual impairment. This argument was within the "wide latitude" granted to counsel to comment on the evidence and argue all reasonable inferences. State v. Zaragoza, 135 Ariz. 63, 68, 659 P.2d 22, 27 (1983).
¶14 Finally, even if some portion of the prosecutor's closing argument could be construed as improper, Hudson has not met his burden of establishing the requisite prejudice for obtaining relief under fundamental error review. The trial court properly instructed the jury on reasonable doubt and the elements of resisting arrest. The trial court further instructed the jury that the case was to be decided based solely on the evidence presented and the court's instructions and that the arguments of counsel were not evidence. We presume that jurors follow the court's instructions. State v. Newell, 212 Ariz. 389, 403, ¶ 68, 132 P.3d 833, 847 (2006). We therefore conclude that the prosecutor's challenged statements, considered individually and cumulatively, did not rise to the level of the fundamental, prejudicial error necessary to reverse Hudson's conviction. See Henderson, 210 Ariz. at 567-68, ¶ 20, 115 P.3d at 607-08.
CONCLUSION
¶15 For the reasons stated, we affirm Hudson's conviction and sentence.