Opinion
No. 2 CA-CR 2017-0374
08-29-2018
THE STATE OF ARIZONA, Appellee, v. MAURICIO BARRARAS MORAGA, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Karen Moody, Assistant Attorney General, Tucson Counsel for Appellee Harriette P. Levitt, 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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pinal County
No. S1100CR201602439
The Honorable Kevin D. White, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Karen Moody, Assistant Attorney General, Tucson
Counsel for Appellee Harriette P. Levitt, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Brearcliffe concurred. STARING, Presiding Judge:
¶1 Mauricio Moraga appeals from his convictions for conspiracy to commit first-degree murder, two counts of dangerous or deadly assault by a prisoner, and aggravated assault. On appeal, Moraga argues that the trial court erred by denying his motions to dismiss the jury pool and for mistrial based on the allegation that the jury pool was tainted. He also argues there was insufficient evidence that he committed aggravated assault and one of the counts of dangerous or deadly assault by a prisoner. Finally, he argues his convictions on one of the dangerous or deadly assault by a prisoner counts and aggravated assault amount to a violation of the constitutional prohibition against double jeopardy. For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding Moraga's convictions. See State v. Allen, 235 Ariz. 72, ¶ 2 (App. 2014). In September 2016, Moraga was an inmate at the Pinal County Jail. One afternoon, while Moraga and other inmates were in the common area, a detention lieutenant and his sergeant were conducting routine rounds. When the officers entered, an inmate yelled out, "The lieutenant is in the pod." Moraga then approached the sergeant and told him his cellmate needed underwear. Moraga "seem[ed] a little shaky" and his request was unusual. The sergeant told Moraga he would try to help him later and continued his rounds; Moraga began "following [him]."
¶3 Moraga's codefendants, Santiago Sanchez and Robert Villalobos, then attacked the lieutenant. Villalobos repeatedly stabbed him with a "shank." When the sergeant attempted to come to the lieutenant's aid, Moraga stepped in his way and assumed "a fighting stance." The sergeant punched Moraga in an attempt to get by him, but Moraga continued to block his path until the sergeant struck him with a baton. When the sergeant reached the lieutenant, Villalobos looked at the sergeant with the shank in his hand. The sergeant employed his Taser on Villalobos, ending the attack. Subsequent investigation revealed that a piece of metal had been removed from Moraga's bunk, indicating it was the source of one of the two shanks used in the attack.
An officer testified a "shank" is a "piece of metal that you can find or be able to get your hands on and sharpen it to use as a knife."
A similar piece of metal was also missing from Sanchez's bunk.
¶4 Moraga was indicted for conspiracy to commit first-degree murder, two counts of dangerous or deadly assault by a prisoner, and aggravated assault. At trial, the jury found him guilty on all counts. The trial court sentenced him to life in prison without the possibility of release before twenty-five years for conspiracy to commit murder, and consecutive sentences totaling seventy-one years on the remaining counts. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Motions to Dismiss Jury Pool and for Mistrial
¶5 Moraga argues the trial court erred when it denied his motions to dismiss the jury pool and for mistrial arising from comments made by prospective jurors, and that he was deprived of a fair and impartial jury in violation of his due process rights. We review the refusal to dismiss the jury pool or grant a mistrial for abuse of discretion. State v. Naranjo, 234 Ariz. 233, ¶ 73 (2014) (motion for mistrial); State v. Glassel, 211 Ariz. 33, ¶ 36 (2005) (motion to dismiss jury pool). Constitutional claims are reviewed de novo. Naranjo, 234 Ariz. 233, ¶ 73.
¶6 "An accused has a constitutional right to be tried by a fair and impartial jury, but he is not entitled to be tried by any one particular jury." State v. Greenawalt, 128 Ariz. 150, 167 (1981) (citation omitted). A party challenging the selection of the jury panel must show "either that the jury was unlawfully empaneled or that the jurors could not be fair and impartial." State v. Davis, 137 Ariz. 551, 558 (App. 1983) (appellate court will not assume taint). "Unless the record affirmatively shows that a fair and impartial jury was not secured, the trial court must be affirmed." Greenawalt, 128 Ariz. at 167. Further, the extent of jury voir dire is left to the trial court's discretion. Davis, 137 Ariz. at 558.
¶7 The record does not support Moraga's contention that the jury pool was tainted. On the first day of jury selection, prospective juror number 14 ("Juror 14") reported to the trial court several concerning comments made in a one-on-one conversation with prospective juror number 38 ("Juror 38"). Regarding the appearance of the defendants, Juror 38 had said, "You can dress up a pig, but they're still a pig." He also said he believed the defendants' tattoos were gang-related. Further, Juror 38 mentioned that he believed the prosecutor was hinting at potential accomplice liability in the case. Apparently, the conversation was solely between Jurors 14 and 38. Juror 14 also reported overhearing several other prospective jurors complaining about delays and talking about the case on their cell phones during a break. However, when asked by the court whether they had heard any comments suggesting any "negative or disparaging opinion, or prejudging issues in th[e] case," none of the prospective jurors raised their hands. In addition, the court ultimately excused Jurors 14 and 38.
¶8 On the second day of jury selection, prospective juror number 28 ("Juror 28") admitted he had previously made comments about delays and the length of jury selection. But he did not direct blame towards any particular attorney or party, and he told the trial court he could still be impartial. He was not empaneled. Later, several prospective jurors admitted they had negative reactions concerning the defendants' tattoos; they, too, were excused from serving on the jury. Another prospective juror stated he believed "there's stereotypes for a reason," and was immediately excused. The court subsequently denied Moraga's motions to dismiss the jury pool and for mistrial.
¶9 There is no indication that the one-on-one conversation between Jurors 14 and 38 affected any of the other prospective jurors, and those two individuals were excused. See State v. Doerr, 193 Ariz. 56, ¶¶ 15-23 (1998) (analyzing and rejecting speculative assertions that statements by excused prospective jurors tainted jury). As noted, the trial court specifically asked the jury pool whether anyone had overheard disparaging or negative comments or had prejudged the case; none of the prospective jurors answered in the affirmative. Juror 28's comments only expressed his general frustration with delays in jury selection—a common sentiment among prospective jurors—and did not implicate his ability to be fair and impartial. And, he did not sit on the jury. Further, the prospective jurors who admitted they could not be fair and impartial because of Moraga's tattoos and negative stereotypes were excused. Accordingly, we conclude the trial court did not abuse its discretion in denying Moraga's motions to dismiss the jury pool and for mistrial. See id. ¶ 18 ("Defendant merely speculates that this contamination occurred. We will not, however, indulge in such guesswork.").
In Doerr, one prospective juror, the former director of a crime lab, indicated during voir dire that he could not be fair because he knew and highly respected several prosecution witnesses. 193 Ariz. 56, ¶ 15. Another prospective juror, a correctional officer, "volunteered that during his four and one half years on the job, he had encountered only three inmates who were not guilty." Id. ¶ 16. Our supreme court concluded the trial court did not err "in [its] refusal to declare a mistrial and replace the entire panel." Id. ¶ 18.
Moraga also notes that two prospective jurors had family members employed by the Arizona Department of Corrections, and that another was a detention officer. None of these prospective jurors said they could not be fair, and none were empaneled on the jury. See Davis, 137 Ariz. at 558 (appellate court will not assume taint). --------
Sufficiency of Evidence
¶10 Moraga also argues the state presented insufficient evidence to support his convictions for the dangerous or deadly assault of the sergeant and aggravated assault. We review de novo whether there is sufficient evidence to support a conviction, and will reverse only if there is no substantial evidence to support it. State v. Allen, 235 Ariz. 72, ¶ 6 (App. 2014). "Substantial evidence is proof that reasonable persons could accept as sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." State v. Spears, 184 Ariz. 277, 290 (1996). And, "[i]n determining the sufficiency of the evidence, we view the evidence in the light most favorable to sustaining the verdict, and we resolve all inferences against [the] defendant." Id.
Dangerous or Deadly Assault by a Prisoner
¶11 Dangerous or deadly assault by a prisoner occurs, in part, when a person in custody "commits an assault involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument." A.R.S. § 13-1206. As relevant here, assault occurs when a person "[i]ntentionally plac[es] another person in reasonable apprehension of imminent physical injury." A.R.S. § 13-1203(A)(2). The state charged Moraga as an accomplice to Villalobos's threatening exhibition of a shank against the sergeant. See A.R.S. § 13-303 (accomplice liability).
¶12 Moraga claims the evidence did not meet "the standard of proof" required for dangerous or deadly assault by a prisoner because he did not possess a shank and the sergeant was not injured. Further, he claims that even under the theory of accomplice liability, the lieutenant was the sole target of the attack. Moraga, however, overlooks that he was an accomplice of Villalobos and Sanchez because he aided them in committing the assault on the lieutenant by attempting to prevent the sergeant from stopping it. See A.R.S. § 13-301(2) (accomplice is person who "[a]ids, counsels, agrees to aid or attempts to aid another person in planning or committing an offense"). When the sergeant went to stop the attack, Villalobos "looked at [him] with the shank in his hand," causing him to fear that Villalobos would use it on him. Villalobos's threatening exhibition of a shank against the sergeant was a "reasonably foreseeable consequence" of the assault on the lieutenant. See § 13-303(A)(3). We conclude substantial evidence supported Moraga's conviction for dangerous or deadly assault by a prisoner. See Spears, 184 Ariz. at 290.
Aggravated Assault
¶13 As applicable here, aggravated assault occurs when a person in custody "[c]ommits an assault knowing or having reason to know that the victim is acting in an official capacity as an employee" of the jail. A.R.S. § 13-1204(A)(10). The evidence required for assault is that a person "[k]nowingly touch[ed] another person with the intent to injure, insult or provoke such person." § 13-1203(A)(3).
¶14 Moraga asserts he did not make physical contact with the sergeant except when the sergeant punched him. The record, however, shows that Moraga, seeing the attack in progress, stepped in front of the sergeant, who was running to the lieutenant's aid, blocking his path and assuming a fighting stance with his hands up. Only then did the sergeant punch him. And, thereafter, Moraga remained in prolonged physical contact with the sergeant, continuing to block him until the sergeant struck him with a baton. On this record, the jury could reasonably infer Moraga intended to injure or provoke the sergeant. See In Re Jeremiah T., 212 Ariz. 30, ¶ 6 (App. 2006) (For § 13-1203(A)(3), "[i]t is sufficient if the defendant sets in motion a force or process that produces some sort of contact with the victim."). Thus, we conclude substantial evidence supported Moraga's conviction for aggravated assault. See Spears, 184 Ariz. at 290.
Double Jeopardy
¶15 Finally, Moraga argues on appeal that his conviction of both the second count of dangerous or deadly assault by a prisoner and aggravated assault violates the prohibition against double jeopardy and requires this court to vacate the aggravated assault conviction. Because he did not raise this claim in the trial court, we review for fundamental, prejudicial error. See State v. Musgrove, 223 Ariz. 164, ¶ 10 (App. 2009). Fundamental error is error that goes to the foundation of the case, takes from a defendant a right essential to his defense, and is of such magnitude that he could not possibly have received a fair trial. State v. Henderson, 210 Ariz. 561, ¶ 19 (2005). Moraga bears the burden of showing error occurred, it was fundamental, and it prejudiced him. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 16 (App. 2008). A violation of the prohibition against double jeopardy constitutes fundamental error, and we review such issues de novo. See Musgrove, 223 Ariz. 164, ¶ 10.
¶16 Even considering the merits of Moraga's double jeopardy argument, see State v. Fernandez, 216 Ariz. 545, ¶ 32 (App. 2007) (court will not ignore fundamental error if it sees it), however, we conclude no violation has occurred. Moraga claims his conviction for aggravated assault is a lesser-included offense of the second count of dangerous or deadly assault by a prisoner. The double jeopardy clauses of the United States and Arizona Constitutions prohibit multiple prosecutions for the same offense. See U.S. Const. amend. V; Ariz. Const. art. II, § 10; see also State v. Garcia, 235 Ariz. 627, ¶ 5 (App. 2014). "Greater and lesser-included offenses are considered the 'same offense'" for double jeopardy purposes. Garcia, 235 Ariz. 672, ¶ 5. Moraga's conviction for dangerous or deadly assault by a prisoner arose from Villalobos's threatening exhibition of a shank towards the sergeant. His aggravated assault conviction arose from his own conduct in attempting to forcibly prevent the sergeant from aiding the lieutenant. Thus, the two convictions are based on separate acts; each required proof of at least one fact not required by the other. See Blockburger v. United States, 284 U.S. 299, 304 (1932) (test for double jeopardy is whether offenses "require[] proof of a fact which the other does not"); see also Garcia, 235 Ariz. 627, ¶ 6; State v. Miranda, 198 Ariz. 426, ¶ 20 (App. 2000) (convictions based on separate events do not violate double jeopardy).
Disposition
¶17 For the foregoing reasons, we affirm Moraga's convictions and sentences.