Opinion
No. 1 CA-CR 11-0341
04-17-2012
STATE OF ARIZONA, Appellee, v. NICHOLAS ORTIZ RAMIREZ, Appellant.
Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Joseph T. Maziarz, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Louise Stark, Deputy Public Defender Attorneys for Appellant Phoenix
NOTE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.34
MEMORANDUM DECISION
(Not for Publication - Rule 111, Rules of the Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2010-112779-001 DT
The Honorable Samuel A. Thumma, Judge
AFFIRMED
Thomas C. Horne, Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Joseph T. Maziarz, Assistant Attorney General
Attorneys for Appellee
Phoenix
James J. Haas, Maricopa County Public Defender
By Louise Stark, Deputy Public Defender
Attorneys for Appellant
Phoenix
TIMMER, Judge
¶1 Nicholas Ortiz Ramirez appeals his conviction and resulting sentence after a jury found him guilty of aggravated assault. On appeal, Ramirez argues the prosecutor engaged in misconduct by (1) asking Ramirez during cross-examination whether other witnesses were lying and (2) by vouching for the victim and a police officer. For the following reasons, we disagree and therefore affirm.
BACKGROUND
¶2 On the afternoon of March 8, 2010, Ramirez went to a local store. The store clerk testified Ramirez smelled of alcohol, but Ramirez testified he had not been drinking that day. In the check-out line, Ramirez said a swear word while children were nearby, which led to a heated exchange with the clerk. The clerk asked him to leave, and Ramirez walked out into the parking lot.
¶3 Accounts varied as to what happened next. All witnesses agreed Ramirez encountered victim P.L., who was in the parking lot, and a physical altercation ensued. P.L. testified he was walking with his bicycle when Ramirez suddenly attacked him with a baseball bat, knocked him down, and continued to strike him. P.L. further testified Ramirez threw the bicycle at him. The clerk testified she saw Ramirez punch the victim, and Ramirez and P.L. then exchanged punches. The clerk then saw Ramirez hit P.L. with a baseball bat, which knocked P.L. down, and then Ramirez hit him with the bat at least three more times. The store manager testified he saw Ramirez beating P.L. with the baseball bat at least three times while P.L. was on the ground. Ramirez, however, testified P.L. approached him outside the store, started threatening him, and then swung a bat at him. Ramirez stated he punched P.L. in defense and was able to grab the bat away from him. He further testified that he then hit P.L. with the bat twice, but before P.L. fell to the ground. He testified he did not hit P.L. with the bat while he was on the ground or throw a bicycle at P.L.
P.L. testified that Ramirez also attacked him with his hands and feet before going into the store. The record contains no other evidence of this alleged first attack.
¶4 The jury found Ramirez guilty of aggravated assault. The trial court sentenced Ramirez to thirteen years' incarceration. This delayed appeal followed.
DISCUSSION
¶5 Ramirez argues the State committed prosecutorial misconduct by (1) repeatedly asking Ramirez during cross-examination if other witnesses were lying and (2) vouching for P.L. and a police officer. Because Ramirez did not raise these arguments below, he has waived them absent fundamental error. State v. Schaff, 169 Ariz. 323, 327, 819 P.2d 909, 913 (1991). To gain relief, Ramirez must prove error occurred, the error was fundamental, and he was prejudiced by the error. State v. Henderson, 210 Ariz. 561, 568, ¶¶ 23-24, 26, 115 P.3d 601, 608 (2005). Error is considered fundamental if it reaches the foundation of the defendant's case or removes an essential right to the defense. State v. McGann, 132 Ariz. 296, 298, 645 P.2d 811, 813 (1982).
¶6 We will reverse for prosecutorial misconduct only if misconduct is present and "a reasonable likelihood exists [] the misconduct could have affected the jury's verdict, thereby denying defendant a fair trial." State v. Moody, 208 Ariz. 424, 459, ¶ 145, 94 P.3d 1119, 1154 (2004) . In addition, reversal is only required if misconduct is "so pronounced and persistent that it permeates the entire atmosphere of the trial." State v. Rosas-Hernandez, 202 Ariz. 212, 218-19, ¶ 23, 42 P.3d 1177, 1183-84 (App. 2002) (quoting State v. Lee, 189 Ariz. 608, 616, 944 P.2d 1222, 1230 (1997)). We look to "whether the misconduct affected the jury's ability to fairly assess the evidence." Id. (citing State v. Murray, 184 Ariz. 9, 35, 906 P.2d 542, 568 (1995)). With these principles in mind, we consider Ramirez's arguments.
A. Were-they-lying questions
¶7 Ramirez contends the prosecutor erred by repeatedly asking Ramirez if other witnesses were lying. Specifically, Ramirez directly contradicted the testimony of the store clerk, the store manager, or both about (1) Ramirez saying the "F-word" while waiting in line, (2) the manager following Ramirez from the store, (3) Ramirez speaking with multiple people in the parking lot after he left the store, and (4) Ramirez continuing to strike P.L. with the bat after he fell to the ground. During cross-examination, the prosecutor addressed these topics and repeatedly asked Ramirez whether the clerk and manager were lying. The following testimony typifies the prosecutor's use of "were-they-lying" questions:
Though Ramirez noted in his brief that the prosecutor also asked if he "really expected the jury to believe" his testimony, Ramirez did not make any argument concerning this language and thus waived any potential issues. Schabel v. Deer Valley Unified Sch. Dist. No. 97, 186 Ariz. 161, 167, 920 P.2d 41, 47 (App. 1996) ("Issues not clearly raised and argued in a party's appellate brief are waived.").
Q. That [the manager following Ramirez from the store] didn't happen?
A. Nothing.
Q. So what Jack [the manager] came up and testified to earlier today, and you were sitting right here, that was all a lie?
A. Yeah.
Q. Okay. So Jack was lying?
A. Yeah.
Q. And [the clerk] was lying when she said that you said the F word, right?
A. I would say so, yeah.
Q. Okay. So we got two liars that I brought up on the stand today, right?
A. Appears to be, yeah.
Q. But you're not a liar, right?
A. No.
Q. Okay. And you do have prior felony convictions, right?
A. Yeah.
¶8 Although in Arizona, opinion testimony by one witness commenting on the truthfulness of another is generally disfavored, see State v. Boggs, 218 Ariz. 325, 335, ¶ 39, 185 P.3d 111, 121 (2008), we have declined to categorically prohibit were-they-lying questions. State v. Morales, 198 Ariz. 372, 375, ¶¶ 12-13, 10 P.3d 630, 633 (App. 2000). And we have noted that were-they-lying questions alone rarely amount to fundamental error. Id. at 376, ¶ 15, 10 P.3d at 634.
¶9 Even assuming the prosecutor's cross-examination of Ramirez was improper, any alleged misconduct was not so pronounced and persistent as to require reversal. Rosas-Hernandez, 202 Ariz. at 218-19, ¶ 23, 42 P.3d at 1183-84 (quoting Lee, 189 Ariz. at 616, 944 P.2d at 1230). The questions highlighted that the versions of events related by Ramirez, on the one hand, and the clerk and the manager, on the other, were so contrary that someone was either grossly mistaken or lying. The jury could consider these inconsistencies in deciding witness credibility, and the prosecutor was permitted to argue them to the jury. See State v. Canion, 199 Ariz. 227, 236-37, ¶ 43, 16 P.3d 788, 797-98 (App. 2000). We are not persuaded that use of the word "lying" was so provocative that it unduly affected the jury's assessment of witness credibility. Cf. id.; Morales, 198 Ariz. at 376, ¶ 15, 10 P.3d at 634. Moreover, the court properly instructed the jurors that they are the judges of witness credibility and that testimony from Ramirez should be judged in the same manner as any other witness's testimony; we presume jurors followed the court's instructions. Rosas-Hernandez, 202 Ariz. at 219, ¶ 25, 42 P.3d at 1184.
We note this issue easily could have been avoided had the prosecutor refrained from using this method of cross-examination or had defense counsel interposed appropriate objections.
--------
¶10 In sum, even accepting that the case hinged on the jury's acceptance of one version of events over the other, making witness credibility crucial, use of were-they-lying questions did not inject fundamental error into the proceedings. See Canion, 199 Ariz. at 236-37, ¶¶ 42, 44, 16 P.3d at 797-98.
B. Vouching
¶11 Ramirez next contends the prosecutor committed misconduct by vouching for the victim, P.L., and one of the arresting officers. Prosecutors may argue all reasonable inferences from the evidence but cannot make insinuations that are not supported by the evidence. State v. Hughes, 193 Ariz. 72, 85-86, ¶ 59, 969 P.2d 1184, 1197-98 (1998). Two forms of impermissible vouching exist: (1) when the prosecutor places the prestige of the government behind its witness, usually by personal assurances of a witness's truthfulness, and (2) where the prosecutor suggests that information not presented to the jury supports the witness's testimony. State v. Doerr, 193 Ariz. 56, 62, ¶ 24, 969 P.2d 1168, 1174 (1998); State v. Dunlap, 187 Ariz. 441, 462, 930 P.2d 518, 539 (App. 1996).
1. Victim
¶12 During closing argument, the prosecutor made the following assertions:
The victim's testimony should be believed. Here's why. The victim has no reason to go up there and lie. The victim doesn't know the defendant. He has no reason to come up here and tell you a story that isn't true. The victim had some difficulty speaking English, had some difficulty communicating. You heard that here in the trial. You saw he had a hard time conveying exactly what happened. You had to understand where his background is from, where he comes from, and that communicating for him is an issue. I struggled getting things out of him. I finally cleared up what his story was in the end, that he was attacked twice, not once.
¶13 Ramirez argues the prosecutor vouched for P.L. by (1) implying the prosecutor knew something "more and special" about P.L.'s background that would explain why P.L. was confused in his testimony, and (2) stating he had "cleared up" P.L.'s story. We disagree. The prosecutor's arguments neither placed the prestige of the government behind P.L. nor suggested the existence of additional supportive evidence not presented to the jury. Doerr, 193 Ariz. at 62, ¶ 24, 969 P.2d at 1174. The
prosecutor did not provide any assurances of P.L.'s truthfulness; he merely argued reasonable inferences from the evidence to explain P.L.'s confusion in testifying: his language deficits, his status as a stranger in this country, and his apparently unsophisticated nature, as evidenced by his act in spending hours in a parking lot reading a book and drinking beer in the middle of the day. Hughes, 193 Ariz. at 85-86, ¶ 59, 969 P.2d at 1197-98. The prosecutor's argument that P.L. had no reason to lie was a reasonable inference based on P.L.'s testimony he did not know Ramirez before the incident. And the prosecutor's contention that he "cleared up" P.L.'s story clearly referred to the prosecutor's questioning rather than any personal investigation on his part. Ramirez was free to argue other inferences to explain P.L.'s confusing testimony, and he did so by arguing in closing that P.L. was drunk at the time of the altercation and thus had poor recollection.
¶14 Even assuming the prosecutor engaged in vouching, Ramirez fails to persuade us this error so "'permeat[ed] the entire atmosphere of the trial'" that he was denied a fair
trial. Hughes, 193 Ariz. at 79, ¶ 26, 969 P.2d at 1191 (citation omitted). Ramirez contends he was deprived of a fair trial because the vouching, along with the were-they-lying questions, bolstered P.L.'s credibility. Because the evidence consisted primarily of differing witness accounts of what occurred, Ramirez contends the vouching likely caused at least some jurors to disbelieve his version of events. We are not convinced the prosecutor's statements had such impact. Additionally, the court properly instructed the jury that closing arguments were not evidence. See State v. Morris, 215 Ariz. 324, 336-37, ¶ 55, 160 P.2d 203, 215-16 (2007) ("Even if the prosecutor's comments were improper, the judge's instructions negated their effect."). We do not discern fundamental error.
2. Officer
¶15 One of the police officers at the scene testified Ramirez seemed to have alcohol in his system, and the officer smelled alcohol on Ramirez's breath. On cross-examination, the officer conceded he did not mention this in his report, and he would generally consider that fact important enough to include. During closing arguments, the prosecutor asserted:
[The officer] said he didn't do as comprehensive a report as he would have liked to. Ladies and gentlemen, when doesn't that happen to someone when it goes to trial? When an officer goes to trial, and he says, oh, I wish I would have said that. I wish I would have had that in the report. That would have helped us out. Don't let the defense turn this on the police.Ramirez contends this argument constituted vouching because it implied the prosecutor knew such omissions to be routine and not indicative of what the officer actually observed.
¶16 We need not decide whether the prosecutor vouched for the officer. Even assuming he did so, we cannot say this misconduct permeated the proceedings and deprived Ramirez of a fair trial. Hughes, 193 Ariz. at 79, ¶ 26, 969 P.2d at 1191. Whether Ramirez was intoxicated or sober did not substantially affect the allegation of aggravated assault. Nor did the fact of intoxication significantly affect Ramirez's defense that he did not initiate the altercation, and he did not continue to hit P.L. with the bat once P.L. fell to the ground. The testimony of the store clerk, store manager, and P.L. provided the evidence that Ramirez continued to strike P.L. with the bat. Neither the officer's testimony regarding his detection of alcohol on Rameriz's breath nor the officer's credibility was crucial in proving Ramirez's guilt. Consequently, any vouching did not likely influence the jury's ability to fairly assess the evidence. Rosas-Hernandez, 202 Ariz. at 218-19, ¶ 23, 42 P.3d at 1183-84.
CONCLUSION
¶17 For the foregoing reasons, we affirm Ramirez's conviction and sentence.
______________________
Ann A. Scott Timmer, Judge
CONCURRING:
______________________
Maurice Portley, Presiding Judge
______________________
Andrew W. Gould, Judge