Opinion
No. 2 CA-CR 2018-0070
12-20-2018
THE STATE OF ARIZONA, Appellee, v. JOSE GUADALUPE MORALES, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Alexander M. Taber, Assistant Attorney General, Tucson Counsel for Appellee Joel Feinman, Pima County Public Defender By Sarah L. Mayhew, Assistant Public Defender, 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NOT FOR PUBLICATION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 Pima County
No. CR20165019001
The Honorable Janet C. Bostwick, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Alexander M. Taber, Assistant Attorney General, Tucson
Counsel for Appellee Joel Feinman, Pima County Public Defender
By Sarah L. Mayhew, Assistant Public Defender, 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 Jose Guadalupe Morales appeals his convictions and sentences for two counts of burglary in the second degree. He argues the trial court erred in allowing lay opinion testimony that identified him as the burglar and in failing to grant a mistrial on the basis of inadmissible, prejudicial, other-acts evidence. For the reasons that follow, we affirm Morales's convictions and sentences.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the jury's verdicts and resolve all inferences against Morales. See State v. Felix, 237 Ariz. 280, ¶ 30 (App. 2015). On October 24, 2016, a homeowner reported that his home had been burglarized. Footage from the homeowner's security camera showed a man wearing a red-striped polo shirt, khaki pants, and black sneakers with orange soles breaking into the home through a window and leaving with electronics from inside. In addition to providing the footage to police officers, the homeowner posted it on social media, where M.O. viewed it on October 25.
¶3 While driving on October 26, M.O. "noticed somebody fitting or looking like the gentleman in the description of the video riding his bike past [him]." Specifically, he noticed the man on the bicycle was wearing black sneakers with orange soles. M.O. followed the man, called 9-1-1, and reported he was following a person he believed was a burglar caught on home security footage he had watched online.
¶4 At some point, M.O. briefly lost track of the man, but then saw a bicycle leaning against a wall outside of a house. Believing it was the bicycle the man had been riding, M.O. parked where he had a clear view of the house. He then saw the man pull the bicycle into the yard, break a window and enter the house. M.O. told the police dispatcher what he had seen, and, approximately five minutes later, officers arrived and surrounded the house. They had been given a description of the suspect as a Hispanic male, wearing khaki pants and a striped shirt.
¶5 The man attempted to flee from the home, but was quickly detained by a K-9 unit and arrested. Officer Brendon Brumitt collected evidence from the arrest, including a glove the suspect had dropped on the ground, the matching glove remaining on his hand, and a wallet that was in one of the suspect's pockets. The wallet contained an identification card and a Social Security card, both of which belonged to Jose Guadalupe Morales, reflecting a July 1983 date of birth.
¶6 The suspect initially identified himself with a different name and date of birth, but a records check conducted by officers revealed that the identity he had provided was false. Officers then used "certain identifying markers, tattoos" and a law enforcement database to compare the suspect's face with mug shots already in the system, which led them to identify the suspect as Morales.
¶7 Morales was charged with two counts of burglary in the second degree for the October 24 and 26 burglaries. After a jury trial, at which he failed to appear, Morales was convicted on both counts, and the trial court subsequently sentenced him to two concurrent, partially mitigated eight-year terms of imprisonment. This appeal followed; we have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Morales was initially charged with two counts of burglary in the second degree and two counts of criminal trespass in the first degree. The criminal trespass counts were dismissed before trial.
Discussion
Lay Opinion Testimony
¶8 Morales argues the trial court erred by allowing lay opinion testimony from M.O., who identified Morales as the man in the security footage from the October 24 burglary and the video of him riding his bicycle before the October 26 burglary and by allowing Brumitt's opinion identifying Morales as the man arrested for the October 26 burglary. Because Morales failed to object to the testimony, we review for fundamental error. See State v. Escalante, 245 Ariz. 135, ¶¶ 12-13 (2018); see also State v. Henderson, 210 Ariz. 561, ¶¶ 19-20 (2005).
A defendant who fails to object at trial forfeits the right to appellate relief unless he can show the existence of error that went to the foundation of the case, took from him a right essential to his defense, or was so egregious that he could not possibly have received a fair trial. Escalante, 245 Ariz. 135, ¶ 21. If a defendant shows error that went to the foundation of the case or deprived him of a right essential to his defense, he must also separately show prejudice resulted from the error. Id. If a defendant shows error so egregious he could not have received a fair trial, however, then he has shown prejudice and must be granted a new trial. Id. "[T]he first step in fundamental error review is determining whether trial error exists." Id. (citing Henderson, 210 Ariz. 561, ¶ 23).
¶9 As detailed above, M.O. testified he had seen a man who looked like the burglar in the October 24 footage riding a bicycle on October 26 and subsequently watched that man break into a home. Brumitt testified that he had identified the suspect arrested at the scene of the October 26 burglary as Morales.
¶10 Morales argues this testimony was not proper lay opinion testimony under Rule 701, Ariz. R. Evid., because the testimony about Morales's identity was neither helpful in clearly understanding the witnesses' testimony nor helpful in determining a fact in issue. Specifically, he argues the testimony was not helpful because the jury "could just as easily watch the two videos and make that determination for themselves." Morales also argues that because the only issue in dispute in this case was identity, M.O. and Brumitt's testimony went to the foundation of the case. In addition, he asserts that "[b]ecause the descriptions of the two burglars varied and the State proceeded in absentia, the jury reasonably could have determined that the man in the videos was not [Morales]."
¶11 Rule 701, Ariz. R. Evid., allows opinion testimony from non-experts when that testimony is:
(a) rationally based on the witness's perception;Therefore, "when a lay witness is 'drawing a reasonable inference from [his] firsthand knowledge and perceptions of a situation,' the witness is 'competent to voice [his] opinion.'" State v. Peltz, 242 Ariz. 23, ¶ 17 (App. 2017) (alterations in Peltz) (quoting State v. Ayala, 178 Ariz. 385, 388 (App. 1994)). Here, M.O. testified about what he saw firsthand when he followed Morales on October 26, believing he might be the burglar depicted in the October 24 footage, and saw him break into a house. Similarly, Brumitt testified about his firsthand observations during and following the arrest on October 26, including Morales fleeing, Morales providing a false name at the time of arrest, and the process Brumitt ultimately used to identify Morales. Brumitt testified that the identification process included finding a wallet on Morales's person during the arrest, containing identification and Social Security cards with Morales's name and date of birth, and performing record checks. Thus, we conclude the testimony of both M.O. and Brumitt was rationally based on their perceptions.
(b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
¶12 In addition to the requirement that a lay witness be competent, the opinion given must be "helpful to clearly understanding the witness's testimony or to determining a fact in issue." Ariz. R. Evid. 701(b). Here, M.O.'s opinion that Morales looked like the burglar in the October 24 video helped the jury clearly understand why he noticed Morales in the first place, why he followed him, why he filmed him, and why he called the police. Likewise, Brumitt's opinion that Morales is the man who was arrested at the scene of the October 26 burglary helped the jury clearly understand his testimony about his observations and actions that day, including the arrest and the process by which Morales was identified.
Brumitt also testified about finding a pair of gloves, one Morales was wearing at the time of his arrest and the other lying in the path along which he had fled, as well as tools in Morales's pocket. --------
¶13 Morales relies on State v. King, 180 Ariz. 268 (1994), for his argument that lay opinion concerning identity should not have been permitted because neither M.O. nor Brumitt knew Morales before October 26. In King, our supreme court upheld the admission of lay opinion on the issue of identity, although jurors had photos of the defendant and could have compared the photos to the defendant in the courtroom. Id. at 280. The court explained the lay opinions were particularly relevant because the defendant had changed his appearance between the time of the crime and trial, and the lay witnesses knew the defendant and what he looked like at the time of the crime. Id. King, however, did not establish a rule limiting the admission of such testimony to cases in which the witness already knows the defendant. Here, although neither M.O. nor Brumitt knew Morales before October 26, their opinions were relevant and helpful for the reasons already stated. And, unlike the circumstances in King, the jury here could not compare the videos with Morales in court because he voluntarily failed to appear for trial. Thus, the testimony of the witness who saw Morales break into the house and an officer who saw him at the time he was arrested for doing so was particularly relevant and helpful to determining the identity of the burglar. We find no error, fundamental or otherwise.
Failure to Grant Mistrial
¶14 Morales argues the trial court erred in failing to declare a mistrial because Brumitt's testimony about comparing Morales to mug shots in a police database was inadmissible, the testimony was unduly prejudicial despite being stricken, and the state did not notify Morales of its intent to introduce evidence of other acts pursuant to Rule 404(b), Ariz. R. Evid. We review a court's denial of a motion for mistrial for an abuse of discretion. State v. Jones, 197 Ariz. 290, ¶ 32 (2000); see also McLaughlin v. Fahringer, 150 Ariz. 274, 277 (1986) ("The decision whether to grant a mistrial is left to the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion."). However, because Morales did not move for a mistrial, we review for fundamental error. See Escalante, 245 Ariz. 135, ¶¶ 12-13, 16-21; see also State v. Ellison, 213 Ariz. 116, ¶ 61 (2006) (citation omitted) ("Absent fundamental error, a defendant cannot complain if the court fails to sua sponte give limiting instructions or to sua sponte order a mistrial."); State v. Laird, 186 Ariz. 203, 207 (1996) ("If a party wants a mistrial, it ordinarily must ask for one.").
¶15 On direct examination, Brumitt testified that he identified the suspect arrested for the October 26 burglary as Morales, in part by comparing him to mug shots in a police database. Morales did not object until Brumitt referred to the mug shot database for a second time, and when he objected, he did not request a mistrial. Morales argued: "I have a clear objection. I let it go the first time with the mug shots. . . . But letting that in calls for extreme prejudice for Mr. Morales and certainly paints him in a bad light to the jury which is not accepted in this type of case." In response, the state suggested a curative instruction and that striking the testimony would remedy Brumitt's references to the mug shots. The trial court agreed, but warned Morales that striking the testimony might bring attention to the reference to the mug shots, and offered to either strike the testimony or to admonish Brumitt. Morales requested that the court strike the testimony, and the court did so, also instructing the jury "to strike your memory and not consider the testimony about where the images were found in reference to mug shots. . . . Don't consider that as evidence." At the end of Brumitt's testimony, the jury submitted a question, asking if the identity that Brumitt determined through the mug shot database matched the identity on the cards found in Morales's wallet. Both the state and Morales agreed it was a "fair" question, the judge asked it, and Brumitt answered, "Yes, it did."
¶16 After the close of evidence, during review of the jury instructions, Morales raised his previous objection to Brumitt's testimony about the mug shots, adding that he objected based on various constitutional grounds. Again, however, he failed to request a mistrial.
¶17 On appeal, Morales argues that he did not need to request a mistrial and that his "clear objection" was sufficient because "courts do not require magic words" to preserve the issue for appeal. Rather, Morales asserts that he "made his wish for a mistrial plain enough that the State made an immediate request for a curative instruction in the hopes that the instruction would obviate the objection." Morales further argues that it was error to admit the mug shot testimony because it was extremely prejudicial evidence of other acts and that the trial court's curative instruction and striking of the testimony "could not cure the prejudice," as evidenced by the jury's question. Specifically, he contends that because of that question—which Morales conceded at trial was "fair"—it is clear the jury "was not able to set aside what it had heard and did consider this testimony in its deliberations. Therefore, the error was fundamental." We disagree.
¶18 As noted, if Morales wanted a mistrial, he needed to request one. See Laird, 186 Ariz. at 207. In Laird, which involved an appeal from a death sentence, our supreme court found no error in the trial court's failure to grant a mistrial on its own motion when it had sustained the defendant's objection to testimony, struck the testimony, and instructed the jury to disregard it. Id. at 205, 207. Similarly, here, the court sustained Morales's objection and struck Brumitt's testimony about mug shots, instructing the jury not once, but twice, to disregard the testimony. Also like Laird, Morales failed to request a mistrial, and specifically agreed to a curative instruction and the striking of Brumitt's testimony about mug shots. Neither did Morales object to the jury's question; instead, he affirmatively agreed it was fair. We find no error in the trial court's refusal to grant a mistrial on its own motion.
Disposition
¶19 For the foregoing reasons, we affirm Morales's convictions and sentences.