Opinion
No. 1 CA-CR 18-0105
03-23-2021
STATE OF ARIZONA, Appellee, v. JAMES MITCHELL LOOS, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Eliza C. Ybarra Counsel for Appellee Law Office of Elizabeth M. Hale, Esq., Lakeside By Elizabeth M. Hale Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Navajo County
No. SO900CR201600271
The Honorable Robert J. Higgins, Judge
REVERSED AND REMANDED
COUNSEL Arizona Attorney General's Office, Phoenix
By Eliza C. Ybarra
Counsel for Appellee Law Office of Elizabeth M. Hale, Esq., Lakeside
By Elizabeth M. Hale
Counsel for Appellant
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge James B. Morse Jr. and Judge Lawrence F. Winthrop joined. CATTANI, Judge:
¶1 James Mitchell Loos appeals his conviction of continuous sexual abuse of a child and the resulting sentence. Loos's counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), certifying that, after a diligent search of the record, she found no arguable question of law that was not frivolous. Counsel asks this court to search the record for reversible error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). Loos was given the opportunity to file a supplemental brief but did not do so.
¶2 After reviewing the record, this court requested that the parties submit Penson briefing to address whether the prosecutor's multiple assertions that Loos had committed perjury while testifying resulted in reversible error. For reasons that follow, we conclude that the prosecutor's statements were improper, and we thus reverse Loos's conviction and remand for further proceedings consistent with this decision.
Penson v. Ohio, 488 U.S. 75 (1988).
FACTS AND PROCEDURAL BACKGROUND
¶3 When C.H. was seven years old, he moved into his paternal grandparents' house near Holbrook. Approximately 10 family members lived there, including Loos, who was 17 years old at the time.
¶4 Loos and C.H. lived in that house together for approximately 10 months. According to C.H., on one occasion, Loos called C.H. into a closet and told him to suck Loos's "thumb," but in fact Loos put his penis in C.H.'s mouth. C.H. further alleged that on another occasion, this time in a bathroom, Loos attempted to engage in anal sex. C.H. also alleged other incidents of oral sex and attempted anal sex.
¶5 Loos moved out of the house for a few months, then moved back in with the family at a different house in Holbrook. According to C.H., Loos again made C.H. touch his penis. C.H. recounted that, all told, Loos had sexually abused him more than once or twice a month during the 10 months they were staying in the same home.
¶6 Years later, C.H. told a therapist he had been sexually abused, and after the alleged abuse was reported to the police, the State charged Loos with continuous sexual abuse of a child. At trial, C.H. and Loos were the primary witnesses, with C.H. detailing the abuse described above and Loos expressly denying the allegations.
¶7 After assessing the relative credibility of the proffered testimony, the jury found Loos guilty as charged. See A.R.S. § 13-1417(A). The superior court sentenced him to a mitigated term of 15 years' imprisonment, with credit for 408 days of presentence incarceration. See A.R.S. § 13-705(C).
¶8 Loos timely appealed, and we have jurisdiction under A.R.S. § 13-4033(A)(1).
DISCUSSION
¶9 While cross-examining Loos during the fourth day of trial, the prosecutor asserted that Loos had committed perjury while testifying when he answered defense counsel's question regarding his prior "trouble with the law." The prosecutor argued that Loos had improperly stated that he had only one misdemeanor conviction, when he in fact had multiple convictions.
I. Factual Background to the Perjury Allegations.
¶10 Before trial, the State filed a notice under Rule 609 of the Arizona Rules of Evidence of its intent to use "the defendant's misdemeanor conviction for false reporting to law enforcement in Holbrook Justice Court case CR2013001075 for impeachment purposes at trial in the event that he testifies." Under Rule 609(a)(2), a witness may be impeached by evidence of "any crime regardless of the punishment"—whether misdemeanor or felony—"if the court can readily determine that establishing the elements of the crime required proving—or the witness's admitting—a dishonest act or false statement." Although Loos had additional misdemeanor convictions, the State did not seek their admission under Rule 609, presumably because the elements of those crimes did not require proof of a dishonest act or false statement.
¶11 On the third day of trial, after holding a hearing (with Loos present) to address the State's Rule 609 notice, the superior court ruled that Loos's misdemeanor conviction for false reporting to law enforcement would be admissible under Rule 609(a)(2) without being "sanitized" if Loos were to testify at trial.
A. Loos's Testimony and the Prosecutor's Accusation of Perjury.
¶12 The following day, on direct examination, Loos's counsel attempted to "draw the sting" by asking Loos:
Q. Let's talk about your criminal record. Have you ever been in trouble with the law before this?The prosecutor objected, and defense counsel withdrew the question.
A. Yes. A misdemeanor.
Q. What was it for?
A. It was for falsified information to a law enforcement.
Q. And what happened with that?
¶13 A few moments later, the State requested a bench conference. The prosecutor told the court that "due to an unanticipated issue that arose in the Defendant's testimony," the State needed a recess before beginning cross-examination. After returning from a ten-minute break, defense counsel asked Loos four more questions.
¶14 Immediately thereafter, the prosecutor began his cross-examination by asserting that Loos had lied about his criminal record:
Q. Mr. Loos, a few minutes ago your Attorney questioned you about your scrapes with law enforcement in the Criminal Justice System. Right?
A. Yes.
Q. And you lied when you said you only had one conviction. Correct?
A. Yes, I did.
Q. You perjured yourself?
A. One conviction? I'm sorry. What was that?
Q. You lied when you said to the Jury that you only had one conviction?
A. I only had one--well, that--
Q. Mr. Loos, isn't it true that you were convicted in 2015 of shoplifting?
A. That is true.
Q. Is it true that you were convicted in 2014 of shoplifting?
A. Yes. That is true.
Q. Is it true that you were convicted in 2009 of failure to comply with a court order?
A. For a court order?
Q. Yeah.
A. No, I--what court order was that?
Q. Holbrook Justice Court?
A. (No response)
Q. That would be false? You weren't convicted of failure to comply with a court order?
A. Court order of--
Q. You tell me. Am I dreaming?
A. I don't think that is accurate. Court order--
Q. You were also convicted of a liquor offense?
A. Yes. That is true.
Q. So the fact of the matter is it is not just one conviction for false reporting to law enforcement in 2013. It is a bunch of
other convictions that you omitted from your testimony. Right?Defense counsel did not object.
A. I was just stating that one --
Q. Yes, or no?
A. He only brought up the one.
Q. You only brought up the one.
A. Yes, but he didn't ask any questions about the others.
Q. You said that that was the one and only scrape with the Criminal Justice System that you've been involved with. Right?
A. Yes, I did.
Q. That's what you said to this Jury.
A. (No response)
Q. And that was perjury. Right?
A. Yes, I did have other convictions, but they were all misdemeanors.
¶15 Later, the jury submitted a question asking Loos to "list the misdemeanor offenses in chronological order," and Loos responded:
[Loos]: Let's see. First there was underage drinking.
[Defense counsel]: A what?
[Loos]: Underage drinking. Consumption of alcoholic beverage of a minor. The second was a petty theft. Third was the falsified information to a law enforcement. And fourth is another petty theft.
[Defense counsel]: Shoplift?
[Loos]: Shoplift.
. . . .
[Prosecutor]: Mr. Loos, isn't the correct order in terms of the chronology, that in 2009, you were convicted of the alcohol offense?
[Loos]: Yes.
[Prosecutor]: And also of failure to comply with a court order?
[Loos]: That, I don't remember.
[Prosecutor]: And then you say that you were convicted of some petty theft?
[Loos]: Yes.
[Prosecutor]: And in 2013, you were convicted of the false reporting to law enforcement?
[Loos]: Yes.
[Prosecutor]: And in 2014, you were convicted in Holbrook of shoplifting?
[Loos]: Yes.
[Prosecutor]: And in 2015, you were convicted in Winslow of shoplifting?
[Loos]: Yes. At Walmart, yes.
B. Closing Argument and the Prosecutor's Re-Assertion of Perjury.
¶16 In the State's closing argument, the prosecutor twice urged that Loos had perjured himself by claiming only one prior misdemeanor conviction and argued that the jury should accordingly disbelieve Loos's testimony about the alleged sexual abuse. The prosecutor first stated (without objection):
The witnesses received this oath. Right? They swear to tell the truth, the whole truth, and nothing but the truth. The Defendant perjured himself this morning. Told you that his one and only scrape with the Criminal Justice System
pertained to that false reporting case. Totally lied. Totally lied under oath.
¶17 The prosecutor further argued (again without objection):
Back to this thing with perjury. I mean, the Defendant cannot be trusted to tell you the truth, and when somebody lies under oath to you, he cannot be trusted to tell the truth, and the inferences which you can draw is he wants to mislead you and he's got something to hide.
¶18 Defense counsel attempted to rehabilitate Loos's credibility during closing argument by stating that although "[s]hoplifting was a wrongdoing," Loos "came off fair and honest." Defense counsel then tried to explain Loos's statement that he had "a misdemeanor," telling the jury that he and Loos had "been talking pretrial about one specific allegation, about the false reporting to the police. We never talked pretrial about these others." The prosecutor objected because these facts were not in evidence, and the court struck the statement.
II. Analysis.
¶19 Loos argues that the prosecutor's statements during cross-examination and closing argument that he had committed perjury were improper and resulted in reversible error. Because Loos did not object to the prosecutor's statements at trial, we review only for fundamental error. See State v. Moody, 208 Ariz. 424, 459, ¶ 146 (2004). "Fundamental error is that which is clear, egregious, and curable only via a new trial." State v. Hughes, 193 Ariz. 72, 86, ¶ 92 (1998) (quotation omitted). Under fundamental error review, it is the defendant's burden to show that "(1) error exists, (2) the error is fundamental, and (3) the error caused him prejudice." State v. Riley, 248 Ariz. 154, 170, ¶ 24 (2020) (citing State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018)).
¶20 "There is considerable latitude allowed to counsel in argument. This includes drawing reasonable inferences from the evidence." State v. Miniefield, 110 Ariz. 599, 602 (1974). These reasonable inferences can include characterizing the defendant as a "liar." See id.; see also United States v. Poole, 735 F.3d 269, 276-78 (5th Cir. 2013). Provided that a characterization is drawn from and supported by the evidence, the prosecutor's statements are not misconduct. Poole, 735 F.3d at 277. But a prosecutor cannot characterize a defendant in this manner to incite prejudice or interject personal opinions. Id. at 277-78. And although one question and answer without an objection is generally not prejudicial, a question coupled with prejudicial comments to the jury can result in fundamental error. State v. Anderson, 110 Ariz. 238, 241 (1973).
¶21 Here, the prosecutor argued at trial that Loos lied and committed perjury by stating that he only had one criminal conviction. The sole basis for that argument was Loos's answer "Yes. A misdemeanor" in response to the question "Have you ever been in trouble with the law before this?"
¶22 It stretches reason to call this a "lie" given that Loos did not affirmatively state that he had no other "trouble with the law." The State nevertheless argues that by saying he had "a" misdemeanor, Loos essentially conveyed that he had only one misdemeanor. But it is undisputed—as Loos stated—that he in fact had "[a] misdemeanor." That he also had other misdemeanors did not turn Loos's statement into a lie.
¶23 Moreover, Loos made his statement in the context of the State's Rule 609 notice expressing its intent to introduce evidence of one misdemeanor in the event Loos were to testify and the superior court's Rule 609 ruling allowing evidence of only that misdemeanor. We note that in eliciting testimony on direct examination, had defense counsel asked simply, "Were you previously convicted of a misdemeanor offense of providing falsified information to law enforcement," with Loos responding "Yes," there would presumably be no issue of "lying." And there would be no basis for introducing evidence of other misdemeanor convictions under Rule 609, even though the question and answer would have essentially conveyed the impression that Loos had only one misdemeanor conviction. In this context, the State's insistence that Loos lied by stating that he had "[a] misdemeanor" is unpersuasive.
¶24 The State argues that Loos expressly admitted to having lied and committed perjury while testifying on the stand. But the State bases this argument solely on Loos's responses to the prosecutor's yes or no questions where he was allowed no explanation. And Loos's response to whether he had committed perjury was far from an admission of perjury: he simply acknowledged, "Yes, I did have other convictions." (Emphasis added.)
¶25 We recognize that defense counsel did not object to the prosecutor's questioning or comments, and that any such objection perhaps would have triggered clarification and created a different record from which the prosecutor would have been making his closing argument. Nevertheless, even assuming the record supports the prosecutor's assertion that Loos misrepresented that he had "a" misdemeanor, the prosecutor—without having attempted to clarify the statement—not only accused Loos of lying, but also of committing the crime of perjury, which goes beyond the scope of permissible argument under the facts presented.
¶26 As noted above, Loos's statement that he had "[a] misdemeanor" was not untrue, and the prosecutor's characterization of that statement as Loos asserting "that that was the one and only scrape with the Criminal Justice System that [he had] been involved with" misrepresented Loos's testimony. Because the prosecutor made no attempt to clarify Loos's statement, which was technically correct, there was no basis for asserting that Loos had lied, much less committed perjury.
¶27 We are unaware of any case in Arizona or elsewhere in which a statement such as that made by Loos has formed the basis for a perjury conviction. And we are skeptical that any prosecution agency in Arizona would charge someone with perjury based on such a statement absent clarifying questions leading to an affirmative misrepresentation. Nevertheless, the prosecutor here conveyed to the jury that Loos was guilty of the crime of perjury, and that Loos's testimony regarding the charged sexual abuse offense should thus be discounted.
¶28 The State argues that "it is common knowledge among lay people that lying on the stand under oath constitutes perjury." But perjury is a felony, defined in the criminal code. See A.R.S. § 13-2702. And even if the prosecutor was using the term "perjury" colloquially, because a prosecutor represents the entity (the State) that can bring perjury charges, an accusation of perjury carries a significantly more derogatory connotation and extra weight beyond the colloquial usage of the word. See People v. Ellis, 421 P.2d 393, 399-400 (Cal. 1966) (finding prosecutorial misconduct where the State inappropriately accused the defendant of perjury: "Perjury is a felony, and the connotation conveyed to the jury is therefore apt to be far more derogatory than that conveyed by the term liar . . . [because] it is apt adversely and unnecessarily to affect the ability of the jury dispassionately to weigh the credibility of the accused and the issue of guilt or innocence."). Accordingly, the prosecutor's accusation of perjury was more than a harmless colloquial misstep.
¶29 Furthermore, even assuming Loos misrepresented his criminal record by stating that he had "a" misdemeanor when answering his attorney's question about prior contact with law enforcement, the appropriate remedy for the prosecutor (even in the absence of an objection) was to advise the court of the State's view that Loos had opened the door to additional questioning about his criminal history. The prosecutor could then have sought permission from the court to introduce evidence of other convictions after giving the court an opportunity to (1) weigh the probative value of the evidence against its potential for unfair prejudice and (2) consider requests to "sanitize" the convictions. See State v. Tovar, 187 Ariz. 391, 393 (1996) ("The prosecutor then asked the trial court to permit her to impeach the defendant with a [prior conviction] . . . [and] the court permitted the impeachment but limited the state['s questions]."). Here, the prosecutor failed to plot a path to admissibility in the bench conference held minutes before cross-examination began and instead compounded the prejudicial nature of his accusation of perjury by highlighting, and re-highlighting, the details of all of Loos's misdemeanor convictions.
¶30 "The prosecutor's interest in a criminal prosecution 'is not that it shall win a case, but that justice shall be done.'" Pool v. Superior Court, 139 Ariz. 98, 103 (1984) (quoting Berger v. United States, 295 U.S. 78, 88 (1935)). Here, although we recognize the absence of objections that might have triggered clarification by the prosecutor, it was improper to mischaracterize Loos's testimony and accuse him of perjury—not only twice during cross-examination, but also twice during closing argument. And because the case was one in which there was no physical evidence and turned on the relative credibility of the victim and the defendant, the accusation that Loos had committed perjury created a reasonable likelihood of unfairly prejudicing the jurors against Loos.
CONCLUSION
¶31 We reverse Loos's conviction and sentence and remand to the superior court for proceedings consistent with this decision.