Opinion
No. 2 CA-CR 2012-0393
02-25-2014
THE STATE OF ARIZONA, Appellee, v. MARTIN NICHOLAS MENDOZA, Appellant.
Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee Vanessa C. Moss, Tucson 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NOT FOR PUBLICATION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. CR20102918001
The Honorable Michael O. Miller, Judge
AFFIRMED IN PART; VACATED IN PART
COUNSEL
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Diane Leigh Hunt, Assistant Attorney General, Tucson
Counsel for Appellee
Vanessa C. Moss, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Kelly and Judge Eckerstrom concurred. ESPINOSA, Judge:
¶1 After being tried separately on counts of aggravated assault and prohibited possession of a deadly weapon, Martin Mendoza was convicted of disorderly conduct (a lesser-included offense of aggravated assault) and prohibited possession, and ordered to serve a total of 13.75 years in prison. In this appeal of the prohibited possession conviction, Mendoza argues he was denied his right to a unanimous jury verdict because the charge was duplicitous and one of the jurors was sleeping during key portions of the trial. He also argues that certain statements made by the prosecutor during her closing constituted prosecutorial misconduct and warrant a new trial.
Factual and Procedural Background
¶2 On appeal, we view the facts in the light most favorable to upholding the challenged conviction. See, e.g., State v. Sarullo, 219 Ariz. 431, ¶ 2, 199 P.3d 686, 688 (App. 2008). One night in August 2010, when Mendoza was at a bar with his cousin, he got involved in several altercations with another patron and ultimately was escorted outside by the owners. He returned just before the bar closed, however and, after being refused entry, asked to speak with one of the owners. After owner R.G. came outside and spoke to him, Mendoza produced a "smaller semiautomatic" handgun and began shooting at R.G., who retreated into the bar. R.G. then returned fire, first with a nine millimeter handgun and then with an AK-47 rifle that he retrieved from behind the bar counter. Two bystanders were shot in the gunfight.
¶3 On Mendoza's motion, the aggravated assault and prohibited possession charges were severed and, as noted above, tried to separate juries. After being convicted on the prohibited possession charge, Mendoza filed a motion for new trial in which he argued that his due process rights had been violated as the result of a sleeping juror and that the improper use of the term "touch DNA" constituted prosecutorial misconduct. The motion was denied, and this appeal followed. We have jurisdiction pursuant to A.R.S §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
This case was originally tried to a verdict on each count in 2011, but the trial court subsequently granted Mendoza's motion for new trial.
Discussion
Juror Misconduct
¶4 Mendoza first contends his due process rights were violated because juror number seven was sleeping during critical portions of the trial. And he alleges the court's failure to address the juror's misconduct after being alerted to it by counsel constituted an abuse of discretion. Alternatively, he contends the juror's "absence" during key portions of the trial impaired his constitutional right to a unanimous verdict and resulted in either fundamental or structural error.
¶5 Relying on State v. Prince, 226 Ariz. 516, ¶ 56, 250 P.3d 1145, 1162 (2011), the state responds that Mendoza has forfeited this issue for failure to take "curative action" below. In Prince, our supreme court declined to review a similar claim pursuant to an abuse of discretion standard when appellant's counsel had rejected the trial court's invitation to designate the sleeping juror an alternate. Id. ¶¶ 55-56. The state contends Mendoza is limited to establishing fundamental and prejudicial error on appeal as a result of not "requesting that the juror either be questioned and/or simply designated an alternate." And on that score, the state maintains this issue has been waived on appeal because Mendoza does not adequately argue fundamental error. Alternatively, the state contends this court "is in no position to overrule" the trial court's findings that the juror in question was not actually sleeping.
We disagree that Mendoza waived his right to argue fundamental error by failing to properly develop this point on appeal. Although we acknowledge he could have articulated this portion of his argument more clearly, imprecision alone is not a ground for waiver under Ariz. R. Crim. App. P. 31.13(c)(1)(vi). Accordingly, we find his argument that "fundamental error analysis . . . warrant[s] reversal" based on the "critical nature of the missed testimony" sufficient to merit consideration of this claim.
Under other circumstances, the state's failure to respond to Mendoza's argument that juror number seven's conduct constituted structural error might result in waiver by the state. See State v. Damper, 223 Ariz. 572, ¶ 14, 225 P.3d 1148, 1152 (App. 2010) (finding argument waived in answering brief). However, because it is not entirely clear from Mendoza's opening brief whether he is claiming fundamental error, structural error, or both, we do not fault the state.
¶6 We conclude Mendoza waived the issue of juror misconduct by failing to properly object below. Mendoza's counsel first mentioned juror number seven's conduct in the context of her request for a break in the proceedings. She stated to the trial judge, "I don't know when you were planning to break, but one of the jurors has been falling asleep on and off." The judge granted her request for a break but responded that while the juror's eyes were "slit," he was nevertheless "turning his head and the rest." The issue was not raised again until the end of the day, when counsel mentioned "as a general comment, food for thought for tomorrow," that she "fe[lt] like [she saw] Juror Number 7 dozing once in a while." The judge again observed that while juror number seven's eyelids were "droopy," he had not "noticed anything that would indicate [the juror] was sleeping." Mendoza's counsel did not object to this finding and merely stated in response, "Okay. Thank you." See State v. Mays, 96 Ariz. 366, 370, 395 P.2d 719, 722 (1964) ("before the Trial Court can be put in error . . . it must be clearly shown that the attorney who considered himself aggrieved insisted on a ruling"), quoting Shelton v. Martin, 176 S.W.2d 247, 248 (Tenn. 1943); State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005) (unless fundamental, error not raised below and articulated for first time on appeal not basis for reversal). The issue was not addressed again until Mendoza's motion for new trial.
¶7 Moreover, although Mendoza's counsel raised concerns about the juror's conduct, her statements to the court did not include any request that the juror be removed from the panel or made an alternate. Nor was there any objection to the court's findings that the juror had not actually been sleeping. And Mendoza did not revisit the issue when an alternate juror was selected by the court before the jury began to deliberate. Accordingly, we find counsel's comments insufficient to preserve this issue for appeal. See Prince, 226 Ariz. 516, ¶¶ 55-56, 250 P.3d at 1162 (failure to take "curative action" when sleeping juror issue arose or raise issue again later resulted in waiver).
Mendoza argues Prince is inapposite because in that case, defendant's counsel declined the court's offer to designate the juror in question an alternate. 226 Ariz. 516, ¶ 55, 250 P.3d at 1162. However, as the Prince court did not apply an invited error analysis, id. ¶ 56, we see no functional distinction between the defendant's rejection of the court's offer in Prince and Mendoza's failure to adequately object here.
¶8 Even assuming no waiver had occurred, however, we would not find reversal warranted under the applicable abuse of discretion standard. A trial court that becomes aware of possible juror misconduct "should 'conduct whatever investigation it deems warranted.'" State v. Cota, 229 Ariz. 136, ¶ 74, 272 P.3d 1027, 1041 (2012), quoting State v. Cook, 170 Ariz. 40, 55, 821 P.2d 731, 746 (1991). In Cota, the trial court denied the defendant's request to voir dire a juror when "several people" said his eyes were closed during the presentation of testimony in a capital trial. Id. ¶ 73. Citing the lower court's finding that the juror in question was not, in fact asleep "because he was tapping his foot and moving his wrist," our supreme court found the judge's decision to "personally . . . observe [the juror] rather than conduct voir dire," was not an abuse of discretion. Id. ¶¶ 73-74, citing United States v. Curry, 471 F.2d 419, 422 (5th Cir. 1973) ("The conduct of the juror in open court was a matter of which the trial court had judicial knowledge and could take judicial notice.").
¶9 Here, as in Cota, the trial judge had personally observed the juror in question and found that, while his eyes were "droopy," he was not asleep. See Commonwealth v. Keaton, 628 N.E.2d 1286, 1290 (Mass. App. Ct. 1994) (upholding trial judge's determination juror not sleeping and noting "[m]editation may be mistaken for somnolence"). While we recognize that some situations might give rise to a duty on the part of the trial court to investigate an allegation of juror inattentiveness through, for example, voir dire of the juror, such facts are not present here. Compare United States v. Barrett, 703 F.2d 1076, 1083 (9th Cir. 1983) (further inquiry required where juror himself stated he had been sleeping), with Cota, 229 Ariz. 136, ¶¶ 73-74, 272 P.3d at 1041-42. Accordingly, we find no error, fundamental or otherwise, in the court's denial of Mendoza's motion for a new trial on this basis.
Because we find no error, we do not consider whether such a claim constitutes structural error. We note, however, Mendoza has failed to cite any authority for the position that prejudice can be presumed under these circumstances.
¶10 Our analysis is not altered by an affidavit from Mendoza's trial witness tendered by Mendoza at the hearing on his motion for new trial. The conclusory statement in the affidavit does not establish that juror number seven was sleeping, see Chubb v. State, 640 N.E.2d 44, 48 (Ind. 1994) (conclusory statement in post-trial affidavit not determinative on sleeping juror issue), and it was within the trial court's purview to come to a contrary conclusion based on its direct observations of the juror in question, see Cota, 229 Ariz. 136, ¶ 74, 272 P.2d at 1041-42. The court's vigilance in this regard was revealed in the first discussion with counsel about juror attentiveness, when the judge disclosed that he had already been watching juror number seven and had determined he was not sleeping. Mendoza's expert witness testified the following day, when the court was already aware of the issue. And the court indicated in its ruling on the motion for new trial that it had "made a point of observing the juror at other times during the trial" and that "[h]e did not appear to be asleep." We see no error.
Mendoza suggests "there is no confirmation that [the witness] was indeed referring to the same juror." But having solicited the affidavit, Mendoza was the only one in a position to confirm this fact. Furthermore, Mendoza's counsel stated she "believe[d] it was the same gentleman . . . [who] I alluded to as sleeping during the testimony," and characterized the witness's description of the juror ("a gray/brown haired male in his mid 40s with facial hair in the middle of the second row [within the jury box]") as "detailed enough to be sufficient." We are inclined to agree.
Duplicitous Charge
¶11 Mendoza next contends his indictment for prohibited possession was rendered duplicitous when the state presented evidence regarding two different weapons at trial, based on the discovery of a .380 caliber weapon as well as .40 caliber shell casings found where Mendoza had been standing at the time of the shooting. Mendoza acknowledges that he failed to object on this ground at trial, but contends the error is either structural or fundamental and thereby compels reversal.
Mendoza does not claim the indictment itself was duplicitous. See State v. Klokic, 219 Ariz. 241, ¶¶ 10-12, 196 P.3d 844, 846-47 (App. 2008) (duplicitous indictment charges separate offenses in a single count while duplicitous charge exists where multiple alleged criminal acts are introduced to prove charge). However, as we noted in State v. Butler, "both types of duplicity error present similar problems with respect to jury unanimity and pleading double jeopardy." 230 Ariz. 465, ¶ 13, 286 P.3d 1074, 1079 (App. 2012).
¶12 The state responds that Mendoza has waived this argument on appeal by failing to adequately establish either structural or fundamental error. Specifically, the state notes the absence of authority for Mendoza's claim that a duplicitous charge constitutes structural error and a dearth of analysis as to any prejudice. Alternatively, the state argues the charge was not, in fact, duplicitous because Mendoza engaged in a single "firefight" and raised only one defense to the state's allegation that he may have possessed both weapons. We review a newly raised claim of duplicitous charging under a fundamental error standard. State v. Payne, 233 Ariz. 484, ¶ 80, 314 P.3d 1239, 1264 (2013).
¶13 "If an indictment is facially valid, but the state introduces evidence of several acts, each of which might satisfy the charge, the risk of a non-unanimous verdict is presented." Id. ¶ 81. When such risk exists, the state must "'elect the act which it alleges constitutes the crime, or instruct the jury that they must agree unanimously on a specific act that constitutes the crime before the defendant can be found guilty.'" Klokic, 219 Ariz. 241, ¶ 14, 196 P.3d at 847. But a trial court's failure to require curative action is not error if acts involved are all part of the same criminal transaction, the defendant does not offer a different defense to each act, and there is no reasonable basis to distinguish them. Id. ¶¶ 15, 32.
¶14 We need not determine whether the prohibited possession charge was rendered duplicitous by the state's introduction of evidence linking Mendoza to a second weapon because he has failed to establish any prejudice warranting reversal. See State v. Kelly, 149 Ariz. 115, 117, 716 P.2d 1052, 1054 (App. 1986) ("To constitute reversible error, the defendant must have been prejudiced by [a duplicitous indictment] when considered in conjunction with all the evidence in the case."); see also Payne, 233 Ariz. 484, ¶ 90, 314 P.3d at 1264 (defendant not prejudiced by duplicative charges of child abuse when no reasonable jury could have found defendant not guilty). The state's allegation against Mendoza was premised on testimony from two witnesses to the shooting. One of them testified Mendoza and R.G. had been the only people in the vicinity when the shooting started and R.G. had not had his gun drawn when the shooting began. R.G. himself testified Mendoza had fired at him with "a smaller semiautomatic, possibly a 38 [caliber weapon] or 25 [caliber weapon]." This testimony was buttressed by the presence at the scene of both a .380 caliber handgun and .380 caliber shell casings. Blood stains found on the .380 caliber weapon matched Mendoza's DNA, as did trace DNA found on the grip of that weapon. And when Mendoza met with a police detective approximately one week after the incident to provide a DNA sample, he was wearing a bandage on his lower arm and hand.
¶15 Although there was evidence that the .380 caliber handgun was inoperable when it was recovered by police, the presence of multiple .380 caliber shell casings at the spot where Mendoza reportedly was standing during the shooting, testimony that the handgun could have been damaged by a bullet strike from another gun, the presence of Mendoza's DNA on the handgun, and the apparent injury to his hand, left no room for a reasonable jury to acquit based on the gun's defective state at trial.
¶16 Relying on the foregoing evidence, the state focused at trial on Mendoza's possession of the .380 caliber handgun, as no .40 caliber weapon was ever recovered. While evidence presented by the state on rebuttal linked Mendoza to one of the .40 caliber shell casings found at the scene, this evidence was introduced solely to refute Mendoza's theory that R.G. had "ambushed" him with an unidentified third party who had been shooting both the .380 caliber handgun and the .40 caliber handgun. It was not presented as an alternative to the state's primary claim regarding the .380 caliber weapon but rather, as possible evidence that a second gun had been used after that weapon was rendered inoperable. Indeed, the .40 caliber weapon was not mentioned at all in the state's opening statement, in which the prosecutor described the .380 caliber gun as "the issue [in] this case . . . [t]his is a case about the defendant having possession of that gun." And in closing, the prosecutor merely noted the jury could "make the conclusion that the defendant probably actually had two guns" and "it [wa]s entirely plausible that the defendant, in fact, had two guns." This portrayal of the case, along with the overwhelming evidence that Mendoza possessed the .380 caliber weapon, leads us to conclude he was not prejudiced by any error that may have resulted from a duplicitous charge. See Kelly, 149 Ariz. at 117, 716 P.2d at 1054.
Prosecutor's Statements in Closing
¶17 Mendoza's last argument concerns the prosecutor's use of the term "touch DNA" in her closing argument to refer to the DNA found on the grip of the .380 caliber handgun. Mendoza claims the use of this term was misleading because both of the state's analysts acknowledged that the DNA found on the gun's grip—which they referred to as "trace DNA"—could have resulted from secondary transfer, as opposed to direct handling. The state counters that the prosecutor's characterization of the evidence was reasonably drawn from the testimony of witnesses and the presence of Mendoza's blood on the gun. Alternatively, the state maintains that any such error was rendered harmless by the trial court's instruction to the jury that the attorneys' arguments were not evidence. We will not disturb the court's ruling on this issue or its denial of Mendoza's motion for a new trial based thereon absent an abuse of discretion. See State v. Robles, 182 Ariz. 268, 272-73, 895 P.2d 1031, 1035-36 (App. 1995).
¶18 To determine whether a prosecutor's comments constitute misconduct, a court should consider "(1) whether the prosecutor's statements called to the jury's attention matters it should not have considered in reaching its decision and (2) the probability that the jurors were in fact influenced by the remarks." State v. Newell, 212 Ariz. 389, ¶ 60, 132 P.3d 833, 846 (2006). Counsel has "wide latitude" in closing argument to "comment on the evidence and argue all reasonable inferences therefrom." State v. McDaniel, 136 Ariz. 188, 197, 665 P.2d 70, 79 (1983), abrogated on other grounds by State v. Walton, 159 Ariz. 571, 769 P.2d 1017 (1989).
¶19 We find nothing improper about the prosecutor's references to "touch DNA" on the grip of the .380 caliber weapon because there was evidence in the record that such DNA was likely transferred through direct contact. Although the phrase "touch DNA" did not reflect Mendoza's theory of how his DNA came to be on the handle of the weapon, it nevertheless was a reasonable interpretation of the evidence at trial.
Contrary to Mendoza's claim, the record does not reveal that the prosecutor ever used the term "touch DNA" in reference to the .40 caliber shell casings.
¶20 And even if the references to "touch DNA" had been improper, these comments would not warrant reversal because they were harmless. See Newell, 212 Ariz. 389, ¶ 67, 132 P.3d at 847. Mendoza's counsel argued the distinction between direct and secondary transfer of DNA in her closing, noting the state's DNA analyst "never referred to anything as touch DNA" and emphasizing that "the State's own DNA experts indicated that finding somebody's DNA on an item doesn't mean the person touched that item." Further, as noted above, the trial court pointed out, in both preliminary and final instructions to the jury, that the lawyers' statements were not evidence. See Newell, 212 Ariz. 389, ¶¶ 68-69, 132 P.3d at 847 (jury instructions may cure admission of improper statements); see also State v. LeBlanc, 186 Ariz. 437, 439, 924 P.2d 441, 443 (1996) ("Jurors are presumed to follow instructions."). Accordingly, Mendoza's argument on this point does not merit reversal.
Criminal Restitution Order
¶21 Finally, we address an issue that was neither raised below nor briefed on appeal. Specifically, at the time of sentencing, the trial court entered an order that reduced "all fines, fees, assessments and/or restitution" to a criminal restitution order (CRO). However, the imposition of such an order before the expiration of Mendoza's sentence "'constitute[d] an illegal sentence, which is necessarily fundamental, reversible error.'" State v. Lopez, 231 Ariz. 561, ¶ 2, 298 P.3d 909, 910 (App. 2013), quoting State v. Lewandowski, 220 Ariz. 531, ¶ 15, 207 P.3d 784, 789 (App. 2009).
Section 13-805, A.R.S., has since been amended. See 2012 Ariz. Sess. Laws, ch. 269, § 1.
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Disposition
¶22 For the foregoing reasons, we vacate the CRO entered at sentencing but otherwise affirm Mendoza's convictions and sentences in all respects.