Opinion
No. 2 CA-CR 2013-0027
07-28-2014
THE STATE OF ARIZONA, Appellee, v. FRANK ALEXANDER ROMERO, Appellant.
Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Jonathan Bass, Assistant Attorney General, Tucson Counsel for Appellee Lori J. Lefferts, Pima County Public Defender By Michael J. Miller, 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 NOT FOR PUBLICATION See Ariz.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); Ariz. R. Crim. P. 31.24. Appeal from the superior Court in Pima County
No. CR20102112001
The Honorable Christopher C. Browning, Judge
AFFIRMED AS MODIFIED
COUNSEL Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Jonathan Bass, Assistant Attorney General, Tucson Counsel for Appellee Lori J. Lefferts, Pima County Public Defender By Michael J. Miller, Assistant Public Defender, Tucson Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Howard and Judge Vásquez concurred. KELLY, Presiding Judge:
¶1 Frank Romero appeals from his convictions and sentences for one count of first-degree murder and two counts of sexual assault. He claims the trial court erred by permitting the state to amend the indictment, granting its motion to exclude evidence, denying his motion for mistrial and his requests for recross-examination of witnesses, commenting on the evidence, and disallowing credit for time served on his concurrent sentences. For the following reasons, we affirm Romero's convictions but modify the court's sentencing order to reflect credit for presentence incarceration on count two of the indictment.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding Romero's convictions and sentences. See State v. Becerra, 231 Ariz. 200, ¶ 2, 291 P.3d 994, 996 (App. 2013). On the morning of June 10, 2010, the naked body of S.S. was discovered in a softball field at Freedom Park in Tucson. She appeared to have been beaten, vaginally and anally sexually assaulted, and strangled. The medical examiner (ME) who performed the autopsy determined that S.S. had died of blunt force and asphyxial injuries. Her death was ruled a homicide.
¶3 The night before her death, S.S. and Romero were together at R.G.'s house near Freedom Park, along with Romero's brother N.J. Upon coming home, R.G. found S.S. and Romero undressed and intoxicated in her bed; she believed they were having sexual relations. R.G. became angry and ordered the two out of her house. S.S. got dressed and left, and Romero left shortly after. N.J. stayed at the house for about thirty minutes and then left.
¶4 Later that night, S.S. called her roommate A.A. and asked him to walk with her to their apartment near Freedom Park. A.A. met S.S., whom he described as "extremely intoxicated," and helped her to their apartment complex. Because neither had the electronic card that allowed them to open the gate into the complex, A.A. climbed the fence near the back of the property and opened the front gate from inside. When he returned a "minute or two" later to the spot where he had left S.S., she was gone.
¶5 At around 2:30 the same morning, Romero visited his friend J.R. at her apartment near S.S.'s apartment and Freedom Park. J.R. believed Romero was intoxicated, and he stayed for only ten or fifteen minutes. J.R. went to bed shortly thereafter and Romero headed "towards Freedom Park." Romero was wearing a Beavis and Butthead T-shirt, white Lugz sneakers, a large silver watch, and a red hooded sweatshirt that J.R. had given him.
¶6 S.S.'s body was found by a passerby in Freedom Park later that morning. While investigating at the park, police officers found Romero washing his hands in a nearby drinking fountain. Romero told officers he had been sleeping in the park, indicating a place around 150 yards from where S.S.'s body had been found. After stopping Romero from washing his hands, officers noted what appeared to be blood on his hands, legs, and shoes.
¶7 While collecting evidence from Romero's person, officers observed that Romero appeared to have feces on his penis. DNA testing of samples taken from Romero revealed that he had S.S.'s blood and DNA on his shoes and sock. The results were inconclusive as to the samples taken from Romero's hands, but S.S. was a major contributor to the DNA found on the drinking fountain handle where Romero had been washing. His sperm or DNA was found on S.S.'s neck, breasts, external genitalia, vagina, and anus. His DNA was also a partial match to samples found on S.S.'s hands. N.J. and A.A. were excluded as possible contributors for all samples tested.
Deoxyribonucleic acid.
¶8 Officers found a black Beavis and Butthead T-shirt near S.S.'s body which tested positive for S.S.'s DNA and blood. They found a broken silver watch like the one Romero always wore, which also tested positive for S.S.'s DNA. The white Lugz shoes Romero was wearing matched footprints found near S.S.'s body, which had been left the night of her murder. The DNA of both Romero and S.S. matched blood spots leading from the dugout of the field to where S.S.'s body was found. Drag marks were found between the dugout and S.S.'s body, and S.S. had scrapes on her back consistent with being dragged.
¶9 Following a jury trial, Romero was convicted of all counts. The trial court sentenced him to a term of imprisonment of natural life for the murder and to presumptive, consecutive terms of seven years each for the sexual assaults to be served concurrently with the sentence for murder. Romero timely appealed.
Amending the Indictment
¶10 Romero first argues the trial court violated Rule 13.5, Ariz. R. Crim. P., by granting the state's motion to amend the indictment. We review for an abuse of discretion a court's decision to permit the amendment of an indictment. State v. Johnson, 198 Ariz. 245, ¶ 4, 8 P.3d 1159, 1161 (App. 2000).
¶11 Romero originally was charged with committing two counts of sexual assault by "inserting his penis" into the victim's vulva and anus without consent in violation of A.R.S. § 13-1406. Approximately eight weeks before trial, the state moved to amend the indictment to remove the allegation that the sexual assaults had been committed with a penis. Romero objected, urging the amendment was improper and forced him to change his theory of defense. The trial court granted the state's motion, concluding the amendment was "consistent with Rule 13 . . . as well as the common law of this state." In so doing, the court determined that Romero had "failed to articulate any specific prejudice which would inure to him, were the Court to allow amendment" and that it was "unable to find any prejudice on its own."
According to the state, it learned from its witness in pretrial interviews that "the victim's injuries were inconsistent with consensual intercourse, but might have been caused by penile penetration or from a foreign object." The defense witness, on the other hand, stated that "while the injuries could be consistent with consensual sex, penile penetration was unlikely, given the force involved." The state moved to amend the indictment based on these interviews.
¶12 On appeal, Romero contends the trial court improperly granted the motion to amend, and thereby denied him notice of the offenses with which he was charged. He argues he was prejudiced by the amendment because he had expert testimony the injury "was likely caused by an object rather than a penis," which would have helped him establish a third-party culpability defense. Specifically he maintains that N.J., who also was at R.G.'s house with S.S., had a police-style baton, and was therefore the more likely perpetrator of the sexual assaults.
¶13 Rule 13.5(b) permits an indictment to be amended "only to correct mistakes of fact or remedy formal or technical defects, unless the defendant consents to the amendment." A defect is considered formal or technical when its amendment does not change the nature of the offense or otherwise prejudice the defendant. State v. Bruce, 125 Ariz. 421, 423, 610 P.2d 55, 57 (1980). Rule 13.5(b) does not authorize an amendment that alters the elements of the charged offense. State v. Freeney, 223 Ariz. 110, ¶¶ 17, 20, 219 P.3d 1039, 1042 (2009).
¶14 In this case, Romero was charged with a violation of § 13-1406(A), which provides that "[a] person commits sexual assault by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person without consent of such person." Sexual intercourse is defined as "penetration into the penis, vulva or anus by any part of the body or by any object or masturbatory contact with the penis or vulva." A.R.S. § 13-1401(3). Because § 13-1406 does not require the state to specify whether the alleged assault was committed with a body part or an instrument, the removal of this allegation from the indictment did not change the nature of the offense or alter one of its elements. See State v. Buccheri-Bianca, 233 Ariz. 324, ¶ 19, 312 P.3d 123, 129 (App. 2013) (amending indictment regarding location of conduct did not change nature of offense when location was not element of offense). We therefore conclude the trial court did not abuse its discretion in granting the state's motion to amend. See Johnson, 198 Ariz. 245, ¶ 4, 8 P.3d at 1161.
¶15 Even were we to agree with Romero that the amendment here did change the elements of the charged offense, however, we would find any such error harmless. See State v. Lehr, 227 Ariz. 140, ¶ 70, 254 P.3d 379 (2011) (amendment error harmless unless "the amendment somehow prejudices the defendant's 'litigation strategy, trial preparation, examination of witnesses, or argument'"), quoting Freeney, 223 Ariz. 110, ¶ 28, 219 P.3d at 1044. Romero's third-party culpability defense was designed to create a likelihood that someone other than Romero committed the crimes. It was an "all or nothing" defense that he did not commit the acts at all. Romero does not claim he sought to present a defense establishing he did not or could not have committed the assault with the instrument originally alleged by the state (a penis).
¶16 Romero concedes the amendment "did not affect his defense theory in general," but claims it "greatly impaired his ability to prove that defense to the jury." Although it may have been easier to prove he had not committed the sexual assaults with his penis, his defense strategy that someone else committed the crimes with an object did not change; he thus was not prejudiced by the amendment. See Freeney, 223 Ariz. 110, ¶ 28, 219 P.3d at 1044 (defendant not prejudiced by amendment when his "all or nothing" defense that someone else was perpetrator did not change); State v. Ramsey, 211 Ariz. 529, ¶ 7, 124 P.3d 756, 760 (App. 2005) (no showing defense was prejudiced by allegedly duplicitous indictment when defendant claimed he had not committed charged acts).
¶17 Romero also claims the amendment "meant more evidence was required on the issue" of N.J. and the baton, but that, by the time of the amendment, "the trial court had already stated that no further witnesses could be added to those testifying." He asserts the amendment thus "denied him time to adequately develop another defense." But Romero does not explain what additional evidence he would—or could—have presented regarding the possible use of the baton or N.J.'s alleged culpability, nor did he seek at trial to present any additional evidence regarding N.J. possessing or using the baton to commit the assaults. Indeed, Romero did not focus his defense on N.J. until the fourth day of trial. Thus even were the instrument of the assault an important part of his defense strategy, Romero did not sufficiently demonstrate that a particular instrument was used or that N.J. had any connection with the alleged instrument.
Testimony at trial showed that Romero had left a bag at R.G.'s house that contained a police-style baton. When N.J. attempted to retrieve the bag from R.G. on the morning of June 10, she would not give it to him "because it wasn't his." She testified that N.J. had not left her house with the baton, but when she gave the bag to police officers during the course of their investigation, the baton was not in it. N.J. was seen with the baton following the murder, but there was no evidence linking it to the murder or assaults.
¶18 Romero instead claims that had he known of the amendment, he would have presented additional medical testimony at trial. But he does not explain what such testimony would have established or how his defense strategy would have changed. Testimony presented at trial suggested that S.S. had sexual contact in a manner that was not likely consensual and that some of her injuries may not have been committed with a penis. Romero knew this well before trial; he thus had sufficient opportunity to prepare a defense. See Bruce, 125 Ariz. at 423, 610 P.2d at 57. Because we do not agree that Romero's defense was prejudiced, we can say, beyond a reasonable doubt, that any purported error in the court's ruling would be harmless.
Evidence of S.S.'s Character
¶19 Romero argues the trial court erred by excluding evidence of S.S.'s alleged "cocaine addiction and promiscuous sexual life," which he sought to admit "as evidence of why she disappeared from in front of her apartment complex when [A.A.] went to open the gate." Romero claims that S.S.'s "lifestyle put her at risk" and made it likely she "would have encountered someone who would do her harm." We review a trial court's evidentiary rulings for an abuse of discretion. See State v. Aguilar, 209 Ariz. 40, ¶ 29, 97 P.3d 865, 874 (2004).
¶20 The trial court abuses its discretion when "'the reasons given by the court for its action are clearly untenable, legally incorrect, or amount to a denial of justice.'" State v. Fish, 222 Ariz. 109, ¶ 8, 213 P.3d 258, 263 (App. 2009), quoting State v. Chapple, 135 Ariz. 281, n.18, 660 P.2d 1208, 1224 n.18 (1983). If we find the court erred in excluding the evidence, we must then "determine whether the error was harmless, i.e. whether we can say beyond a reasonable doubt that the error did not contribute to or affect the verdict in the sense that the actual verdict rendered 'was surely unattributable to the error.'" Id., quoting State v. Anthony, 218 Ariz. 439, ¶ 39, 189 P.3d 366, 373 (2008) (alteration in Fish).
¶21 Before trial, the state moved to preclude Romero from introducing bad character evidence concerning S.S. pursuant to Rule 404(b), Ariz. R. Evid., alleging it was irrelevant and the risk of unfair prejudice outweighed any probative value. According to Romero, the evidence would have shown that S.S. had a propensity to fight with men while under the influence of alcohol; S.S. was under the influence of cocaine and/or had cocaine or its metabolite in her system at the time of her death; and S.S. had been working as a prostitute at the time of her death. The trial court granted the state's motion.
¶22 Rule 404(a), Ariz. R. Evid., prohibits the introduction of evidence of a person's character to show conformity therewith, subject to a few limited exceptions. One such exception is found in Rule 404(a)(2), which permits a defendant to introduce evidence of a "pertinent trait of character of the victim of the crime" to establish conformity to it. Further, Rule 404(b) provides in pertinent part that "evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." Other act evidence, however, may be admissible to show "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id. Evidence that is admissible under Rule 404(b) still may be properly excluded under Rule 403, Ariz. R. Evid., "if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice." State v. Vigil, 195 Ariz. 189, ¶ 26, 986 P.2d 222, 226 (App. 1999). "Evidence is unduly prejudicial if it has a tendency to suggest decision on an improper basis, such as emotion, sympathy or horror." Id.
¶23 Character evidence, when admissible, "may be proved by testimony about the person's reputation or by testimony in the form of an opinion," Ariz. R. Evid. 405(a), or by specific instances of conduct when the character trait is an "essential element of a charge, claim, or defense," Ariz. R. Evid. 404(b). A character trait is an "essential element" of an offense when it is an operative fact that determines the rights and liabilities of the parties under the substantive law. State v. Williams, 141 Ariz. 127, 129, 685 P.2d 764, 766 (App. 1984).
¶24 Romero urges that evidence of S.S.'s "traits of partying, freely associating with men, and using cocaine were pertinent to the case because it explained why she left while [A.A.] was going around to open the gate: [N.J.] or someone else offered her cocaine and she left with him." He argues that S.S.'s "tendency to become aggressive indicated that a confrontation would have arisen," and that, in conjunction with S.S.'s injuries and the presence of cocaine metabolites in her blood, created a reasonable doubt that Romero had killed her. Romero further argues the court erred by finding the evidence was not offered for a "proper purpose" under Rule 404(b) because the evidence established that N.J. "would not have had the opportunity to lure [S.S.] into the park if she did not partake of the party lifestyle."
Romero also briefly argues that his due process right to a complete defense requires that he be allowed to present evidence relevant to his defense. But "[a] defendant's constitutional right to present a defense 'is limited to the presentation of matters admissible under ordinary evidentiary rules.'" State v. Hardy, 230 Ariz. 281, ¶ 49, 283 P.3d 12, 22 (2012), quoting State v. Dickens, 187 Ariz. 1, 14, 926 P.2d 468, 481 (1996).
Propensity for Violence
¶25 The trial court properly excluded evidence of S.S.'s alleged propensity to fight with men while under the influence of alcohol pursuant to Rule 404(a)(2). Although such evidence may be admissible to prove the victim was the first aggressor, Romero did not make such an allegation. See Ariz. R. Evid. 404(a)(2); State v. Santanna, 153 Ariz. 147, 149, 735 P.2d 757, 759 (1987). Nor did Romero claim self-defense against S.S.; rather, he presented a defense of third-party culpability. See State v. Zamora, 140 Ariz. 338, 340, 681 P.2d 921, 923 (App. 1984) (defendant may offer evidence of victim's reputation for violence when claim of self-defense is raised). "Where the defendant does not claim self-defense nor does the evidence show that the victim was the initial aggressor, the violent character of the victim is not relevant and such character trait evidence is not admissible." Santanna, 153 Ariz. at 149, 735 P.2d at 759.
Presence of Cocaine and/or Cocaine Metabolite
¶26 The trial court also properly excluded evidence of the "presence of cocaine and/or the metabolite of cocaine" in S.S.'s system pursuant to Rule 404(b). The effects of cocaine intoxication on a victim may be relevant when the defendant alleges self-defense, see State v. Plew, 155 Ariz. 44, 46, 745 P.2d 102, 104 (1987), but Romero did not do so here. Instead, he presented a third-party culpability defense, and he does not claim that S.S.'s alleged cocaine usage was relevant to that defense or that S.S. exhibited any specific behavior on June 10 that was relevant to her murder. Rather, Romero alleges, without any offer of proof, that S.S.'s alleged cocaine habit made it more likely she could have left with someone who offered her cocaine. S.S.'s alleged cocaine use and propensity to leave with men was merely other-act evidence offered "to prove [her] character . . . in order to show action in conformity therewith," and thus was inadmissible pursuant to Rule 404(b). See Williams, 141 Ariz. at 129, 685 P.2d at 766; see also Ariz. R. Evid. 405(b).
The trial court specifically granted Romero leave to "elicit testimony from the medical examiner as to whether the presence of the cocaine in [S.S.]'s system [was] probative of her likely behavior leading up to her death." Romero, however, has not alleged any such probative effect on appeal, and we thus do not consider this aspect of the court's ruling. See Ariz. R. Crim. P. 31.13(c)(vi); State v. Lindner, 227 Ariz. 69, n.1, 252 P.3d 1033, 1034 n.1 (App. 2010).
Prostitution
¶27 Similarly, because Romero failed to allege a proper purpose for evidence that S.S. may have worked as a prostitute, the trial court did not err by precluding that evidence under Rule 404(b). Romero had offered this evidence of S.S.'s "lifestyle" to demonstrate the likelihood that S.S. could have left with another man. But S.S.'s alleged prostitution is not an essential element of Romero's third-party culpability defense, and was offered merely to suggest S.S.'s conformity therewith. See Williams, 141 Ariz. at 129, 685 P.2d at 766; Ariz. R. Evid. 405(b).
The state, in its answering brief, alleges that Arizona's so-called "Rape Shield Statute," A.R.S. § 13-1421, provides another basis upon which this evidence was properly excluded. Because the trial court did not address the applicability of this statute, and because we have concluded the evidence was properly excluded pursuant to the Arizona Rules of Evidence, we do not address the merits of this argument.
¶28 And although Romero mentions "opportunity" as a "proper purpose under Rule 404(b)," in that "[N.J.] would not have had the opportunity to lure [S.S.] into the park if she did not partake of the party lifestyle," he provides no support or authority for the proposition that evidence supposedly bearing on a third-party's opportunity to commit a crime is a proper purpose under Rule 404(b). We thus do not address the merits of this contention. See Ariz. R. Crim. P. 31.13(c)(vi) (appellate brief "shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on"); State v. Lindner, 227 Ariz. 69, n.1, 252 P.3d 1033, 1034 n.1 (App. 2010) (claims not argued on appeal deemed waived). We find no error in the court's rulings precluding evidence of S.S.'s character and other acts.
Statements Excluded as Hearsay
¶29 Romero next argues the trial court erred by precluding as hearsay statements N.J. made to police and to Romero. In May 2012, the state moved to preclude Romero from "presenting evidence of hearsay statements" N.J. had made to police on the day S.S.'s body was discovered. N.J. had told police he and Romero were "getting drunk" on the night before the murder when Romero became angry and "ditched" N.J. to "go chase some hooker." N.J. also stated that Romero was violent when he was drunk, and told police he had slept at R.G.'s house for part of the night of the murder before going to another Tucson park for the rest of the night because he was scared of Romero. Romero sought to admit these statements as well as others "about the stick"—presumably referencing the police-style baton—that N.J. made to Romero in a jail house visit. Romero maintained the statements were not offered for their truth but rather to show that N.J. was trying to deflect responsibility onto Romero.
¶30 Following a hearing, the trial court granted the state's motion, concluding that even though N.J. was unavailable to testify at trial, the proffered evidence was "inadmissible hearsay . . . not subject to any valid exception under Rules 803 and 804,"or 807(a), Ariz. R. Evid. "'We review a trial court's ruling on the admissibility of hearsay evidence for an abuse of discretion.'" State v. Martin, 225 Ariz. 162, ¶ 16, 235 P.3d 1045, 1049 (App. 2010), quoting State v. Bronson, 204 Ariz. 321, ¶ 14, 63 P.3d 1058, 1061 (App. 2003).
N.J. was deceased at the time of the hearing.
¶31 Romero asserts the trial court erred in concluding the statements were hearsay because he did not offer them to establish the truth of the matters asserted, as the court concluded. Rather, he claims they were offered "to show that [N.J.] was saying things that were not true from which an inference of [N.J.]'s guilt could be made." He claims he was prejudiced by the exclusion of this evidence because "the fact that [N.J.] sought to focus police attention on his brother and told several people" a conflicting alibi shows his "sense of guilt," which Romero posits may have affected the verdict.
¶32 Hearsay is a statement, other than one made by the declarant "while testifying at the current trial or hearing . . . offer[ed] in evidence to prove the truth of the matter asserted in the statement." Ariz. R. Evid. 801(c). It is generally inadmissible at trial unless a constitutional provision, statute, or rule provides otherwise. Ariz. R. Evid. 802. The statements N.J. made to police and to Romero do not meet this definition.
¶33 Romero sought to introduce statements N.J. had made about Romero's violent tendencies while drinking, Romero's wanting to "chase some hooker" after seeing S.S. at R.G.'s, Romero's knowledge about "the stick," and N.J.'s whereabouts on the night of the murder. Romero argued that the statements were evidence of N.J.'s guilty mind and were intended to inculpate Romero, rather than to prove that Romero was violent, chasing after S.S., knew of the baton, or to establish N.J.'s location on the night of S.S.'s murder. Because Romero insisted that the statements were not offered for their truth, we cannot conclude they were properly excluded as hearsay.
¶34 But even assuming N.J.'s statements were excluded improperly as hearsay, any error was harmless. See State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993). We determine harmlessness by assessing the effect of "the error in light of all of the evidence" presented in this case. Id. In doing so, we must be able to determine beyond a reasonable doubt that the error did not contribute to or affect the verdict. Id.; see also State v. Payne, 233 Ariz. 484, ¶ 157, 314 P.3d 1239, 1274 (2013).
¶35 Here, the evidence of Romero's guilt was overwhelming—he was found at the scene of S.S.'s murder washing blood off his hands, had S.S.'s blood and DNA on his skin and clothing, was seen before the murder wearing the clothes which were found near S.S.'s body and were stained with her blood, and his DNA was found on S.S.'s body. In contrast, there was no physical, biological, or other direct evidence linking N.J. to S.S.'s murder. In view of this evidence, we can say beyond a reasonable doubt that even if the jury accepted the inferences Romero sought to draw from N.J.'s statements rather than accepting the statements as true and inculpatory as to Romero, those inferences would not have affected the verdict.
Prosecutorial Misconduct
¶36 Romero maintains the trial court erred by failing to grant a mistrial after the prosecutor referred to two facts not in evidence during closing argument. Romero alleges the prosecutor committed misconduct by telling the jury that N.J. had given a statement to police and that Romero had S.S.'s blood on his leg. He argues these facts were not in evidence because N.J.'s statements had been excluded on the state's motion and the spot on Romero's leg had not been tested. We will not disturb a trial court's denial of a motion for mistrial for prosecutorial misconduct absent a clear abuse of discretion, State v. Sarullo, 219 Ariz. 431, ¶ 23, 199 P.3d 686, 692 (App. 2008), "bearing in mind that a mistrial is a 'most dramatic' remedy that 'should be granted only when it appears that that is the only remedy to ensure justice is done,'" State v. Blackman, 201 Ariz. 527, ¶ 41, 38 P.3d 1192, 1203 (App. 2002), quoting State v. Maximo, 170 Ariz. 94, 98-99, 821 P.2d 1379, 1383-84 (App. 1991).
¶37 Prosecutors are afforded wide latitude in presenting closing arguments to the jury. State v. Jones, 197 Ariz. 290, ¶ 37, 4 P.3d 345, 360 (2000). "[B]ecause closing arguments are not evidentiary in nature[,] . . . counsel are permitted to comment on the evidence already introduced and to argue reasonable inferences therefrom." State v. Gonzales, 105 Ariz. 434, 437, 466 P.2d 388, 391 (1970). In deciding whether to grant a mistrial based on prosecutorial misconduct, "[t]he trial court should consider (1) whether the prosecutor's statements called jurors' attention to matters the jury was not justified in considering in determining its verdict, and (2) the probability that the jurors were in fact influenced by the remarks." State v. Lee, 189 Ariz. 608, 616, 944 P.2d 1222, 1230 (1997). To require reversal, the prosecutorial misconduct must affect the jury's ability to fairly assess the evidence and be "'so pronounced and persistent that it permeates the entire atmosphere of the trial.'" State v. Rosas-Hernandez, 202 Ariz. 212, ¶ 23, 42 P.3d 1177, 1183-84 (App. 2002), quoting Lee, 189 Ariz. at 616, 944 P.2d at 1230; see also State v. Hughes, 193 Ariz. 72, 79, 969 P.2d 1184, 1191 (1998) (to prevail on claim of prosecutorial misconduct, defendant must demonstrate prosecutor's misconduct so infected trial with unfairness as to make resulting conviction denial of due process).
N.J.'s Statement to Police
¶38 Romero first challenges the prosecutor's reference to a statement N.J. made to police. During the state's rebuttal closing argument, the prosecutor stated that N.J., the "so-called real killer, is closed in and upset the next day because his brother had been arrested for murder. Not surprising. But he cooperates with the police. He voluntarily gives them his buccal swabs. He voluntarily gives over his shoes. He gives them a statement." But the state, over Romero's objections, had successfully precluded any mention at trial of statements N.J had made to the police. Romero claims that this "led the jury to believe that [N.J.'s statement] was helpful to the state when in fact the state successfully precluded it. The implication for the jury was that they had not heard the statement because it was too damning" to Romero. He argues the state should not have been allowed to mention N.J.'s statement after it had moved successfully to preclude aspects of it.
Law enforcement officers will often collect a DNA sample from an arrestee by gently sweeping a buccal swab along the inside of the arrestee's cheek. See Haskell v. Harris, 669 F.3d 1049, 1051 (9th Cir. 2012).
¶39 Assuming without deciding that the prosecutor's reference to N.J.'s statement was improper, it did not rise to the level of misconduct requiring a mistrial. See Rosas-Hernandez, 202 Ariz. 212, ¶ 23, 42 P.3d at 1183-84. The jury had heard testimony that detectives on the case had contact with "other witnesses and possible witnesses in this case," one of whom was N.J., and that N.J. had voluntarily cooperated with police by providing his shoes and a buccal swab. The prosecutor's reference to N.J.'s statement did not mention specific content and therefore did not direct the jury to consider information it could not have inferred from evidence already presented. We conclude that the prosecutor's comment did not influence the jury's ability to fairly assess the evidence, and certainly did not "permeate[] the entire atmosphere of the trial." Id.
Blood on Romero's Leg
¶40 Romero next claims the prosecutor committed misconduct by mentioning that Romero had S.S.'s blood on his leg. During closing arguments, the prosecutor told the jury that Romero's "mere presence in [the] park did not put blood on his hands, on his legs, on his shoes, on his socks, on the shirt he just had on, the watch he wears all the time." Romero asserts this was prosecutorial misconduct because the stain on Romero's leg had not been tested or identified, and the prosecutor's statements were "likely to have influenced the jury" because blood on his leg "would be more difficult to explain than blood on his shoes."
¶41 Although the spot on Romero's leg was not tested, the jurors were aware of "reddish brown stains" on Romero's leg based on photographs shown and testimony given at trial. They had heard testimony that the substance on Romero's hands, shoes, watch, and shirt was S.S.'s blood, and could deduce that the spot on Romero's leg was similar. In light of the testimony and photographs showing S.S.'s blood on Romero's hands and feet, as well photographs of a similar substance on Romero's leg, the jury reasonably could have inferred the spot was S.S.'s blood. See Gonzales, 105 Ariz. at 437, 466 P.2d at 391. The prosecutor's statement was no more than a reasonable inference from the evidence.
Third-Party Culpability Jury Instruction
¶42 Romero argues the trial court erred by denying his request to instruct the jury on third-party culpability. We review the court's denial of a jury instruction for an abuse of discretion, State v. Musgrove, 223 Ariz. 164, ¶ 5, 221 P.3d 43, 46 (App. 2009), and will not reverse absent a clear abuse of that discretion and resulting prejudice, State v. Larin, 233 Ariz. 202, ¶ 6, 310 P.3d 990, 994 (App. 2013).
¶43 At trial, Romero requested that the court instruct the jury that "if [they] find the evidence created reasonable doubt about whether the defendant committed the offense because the evidence suggests that some other third-party in fact committed the offense or offenses, then [they] must find the defendant not guilty." The court declined to give the instruction, stating it had not been "approved, required . . . [or] offered or given" in any Arizona case; the instruction was "covered" by the other instructions; and the jury was not required to find that someone else had committed the crime in order to find Romero not guilty.
¶44 Although Romero agrees that Arizona law does not "require[] or approve[] an instruction specifically on third party culpability," he argues that without the instruction, the jury may have misunderstood that Romero only had to establish reasonable doubt as to his guilt, rather than third-party culpability. Romero urges that a party is entitled to an instruction on any theory reasonably supported by the evidence and that the jury's instructions on reasonable doubt were not sufficient. He asserts it is not clear that the absence of a third-party culpability instruction did not affect the verdict.
¶45 A trial court must instruct the jury "on any theory reasonably supported by the evidence." State v. Moody, 208 Ariz. 424, ¶ 197, 94 P.3d 1119, 1162 (2004). But the court is not required to give a requested instruction when other instructions adequately cover its substance. State v. Rodriguez, 192 Ariz. 58, ¶ 16, 961 P.2d 1006, 1009 (1998). It is established that "[n]o Arizona case has required a third-party culpability instruction" because "the substance of the instruction [is] adequately covered" by the instructions "on the presumption of innocence and the State's burden of proving beyond a reasonable doubt all elements of the crimes charged." State v. Parker, 231 Ariz. 391, ¶¶ 55-56, 296 P.3d 54, 68 (2013). So long as the trial court has properly instructed the jury on the presumption of innocence and the state's burden of proof, the third-party culpability instruction is not required. Id. ¶ 56.
¶46 Here, the substance of Romero's requested instruction had been adequately "covered" by the other instructions. The jury was instructed on the state's burden to prove Romero's guilt beyond a reasonable doubt as to each element of the offenses, the definition of "reasonable doubt," and that Romero had no obligation to prove his innocence or produce any evidence. The jury also was instructed as to what evidence it should consider "[i]n determining whether the state has proved the defendant guilty beyond a reasonable doubt." These instructions adequately covered the substance of the requested third-party culpability instruction. See id. Because we see no error in the court's refusal to give Romero's requested instruction, we uphold the court's ruling.
Recross-examination Following Juror Questions
¶47 Romero argues the trial court erred by refusing to permit him to recross-examine the ME and shoeprint expert following their responses to jury questions. We generally review restrictions on witness examination for an abuse of discretion. See State v. Fleming, 117 Ariz. 122, 126, 571 P.2d 268, 272 (1977). Because Romero did not request to further question the shoeprint expert, however, we review that claim only for fundamental error. See State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005). "Fundamental error is 'error of such dimensions that it cannot be said it is possible for a defendant to have had a fair trial.'" State v. Moody, 208 Ariz. 424, ¶ 86, 94 P.3d 1119, 1145 (2004), quoting State v. Smith, 114 Ariz. 415, 420, 561 P.2d 739, 744 (1977). We will reverse only if the defendant demonstrates he actually was prejudiced by the error. See State v. Roque, 213 Ariz. 193, ¶ 65, 141 P.3d 368, 388 (2006).
¶48 Early in the trial, the court informed the parties that it did not allow lawyers to "follow up" on juror questions unless the attorney demonstrated that he or she could not have anticipated the question and that the attorney's case would be prejudiced if he or she was not allowed to follow up. Neither party challenged this policy. Later at trial, both Romero and the state questioned the ME who had performed the autopsy about the time and cause of S.S.'s death. She testified that S.S. had died, at the "outside," between eight and twelve hours before the ME examined her, but that some of the injuries could be a few hours old at the oldest.
¶49 After both parties finished questioning the ME, the trial court solicited questions from the jurors. One asked the ME to state the "inside range that [S.S.] could have died" before the ME had examined her. The ME replied it was "four or so hours before [the ME] saw her." Romero then asked to re-examine the ME, stating that although he "underst[oo]d the Court standard for follow up questions," he wanted to elicit further information about the ME's time of death pronouncement. The court stated that the ME had "emphasized [the outside figure for time of death] several times" but that Romero had "chose[n] not to explore the inside," making it "[in]appropriate for [the court] to allow [Romero] to reopen [his] cross examination."
¶50 Later in the trial, the lead detective on the case presented photographs of the shoe prints found at the scene but stated he did not know if other shoe prints had been found around the victim in either the dugout or on the field. A crime lab expert in footwear comparison then discussed many of the 145 images of shoe prints he had examined in the case. He responded to questions from both the state and Romero, and testified there were many images of each shoe print to promote thoroughness and clarity. Following the expert's examination, the judge again solicited questions from the jurors and one asked, "On one of Mr. Romero's shoe prints there is one different print overlapping the print. Did you also study or look at that one?" The expert answered in the negative. Romero did not seek to re-examine the expert.
¶51 On appeal, Romero argues the trial court erred by refusing to permit him to re-examine the ME and shoeprint expert following their responses to jury questions. He states the time of death calculation was important because it raised the question of whether S.S. could have died after Romero was last seen wearing the shirt found near S.S.'s body. On follow-up, Romero wanted to argue that he had been wearing the shirt six hours before S.S.'s body was discovered and that the state, which bore the burden of proof, had not proven S.S. could have been alive at that time.
¶52 Romero further argues that his case "turned in part on the fact that [his] shoeprints were at the scene" and that "one was overlain by an unidentified shoeprint was important to his defense that [Romero]'s shoeprints were present because he was living in the park." He claims the trial court violated his constitutional right to confront witnesses and its limits on cross-examination were unconstitutional because they denied him the opportunity to present information that affected the issues in the case or the witnesses' credibility.
¶53 Both the United States and Arizona Constitutions guarantee a criminal defendant the right to confront witnesses. See U.S. Const. amend. VI ("[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him"); Ariz. Const. art. II, § 24 ("[i]n criminal prosecutions, the accused shall have the right . . . to meet the witnesses against him face to face"). This right includes the right to cross-examine witnesses, Moody, 208 Ariz. 424, ¶ 136, 94 P.3d at 1153, although courts "'retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits'" on cross-examination. State v. Cañez, 202 Ariz. 133, ¶ 62, 42 P.3d 564, 584 (2002), quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
¶54 Generally speaking, there is no right to recross-examine a witness unless a new issue arises during redirect; otherwise, whether to allow recross is in the trial court's sound discretion. State v. Jones, 110 Ariz. 546, 550, 521 P.2d 978, 982 (1974), overruled on other grounds by State v. Conn, 137 Ariz. 148, 669 P.2d 581 (1983); see also State v. Henry, 176 Ariz. 569, 581, 863 P.2d 861, 873 (1993) (defendant not entitled to recross-examine witness, even though tracker's testimony contradicted defendant's testimony where there was nothing new about tracker's testimony). Further, Rule 611(a), Ariz. R. Evid., requires a trial court to exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence. The rule provides that the court should permit the interrogation of witnesses in such a manner as to make the interrogation and presentation effective for ascertaining the truth and avoiding needless waste of time. Id.
¶55 Romero makes no claim that he was denied the opportunity to examine the witnesses fully on each topic upon which he sought recross-examination. See State v. Loftis, 89 Ariz. 403, 405, 363 P.2d 585, 587 (1961). Nor does he allege that new issues arose from the jury's questions or that he could not have anticipated the jury's questions before they were asked. See Jones, 110 Ariz. at 550, 521 P.2d at 982. Because the court's rulings did not deny Romero the opportunity to confront and examine the witnesses or improperly restrict the scope of his examination of witnesses, we conclude the court did not abuse its discretion, see Fleming, 117 Ariz. at 126, 571 P.2d at 272, let alone deprive Romero of a fair trial, Moody, 208 Ariz. 424, ¶ 86, 94 P.3d at 1145; see also State v. Lowery, 230 Ariz. 536, ¶ 11, 287 P.3d 830, 834 (App. 2012) (to establish fundamental error, appellant first must prove error).
Judicial Comment on the Evidence
¶56 Romero next contends the trial court violated the constitutional mandate prohibiting judges from "expressing their opinion as to evidentiary matters." During jury selection, a potential juror expressed concern over being required to look at "evidence that's fairly graphic or violent." The court replied that each member of the jury would have to "at least be aware of all of the evidence," and while the jurors would not have to "spend prolonged periods of time going through every photograph and looking at it in great detail[, they would] need to at least look at them for some period of time to know what they are." The court then stated it could not comment on whether the juror would find the photographs too graphic, as that evaluation differs from person to person.
¶57 Later, during the prosecution's examination of the ME, Romero sought to present photographs the state "specifically did not use because they are a little bit more gruesome . . . or graphic." The trial judge admitted the photographs and told the jury,
I'm going to give you a little heads up. The last several photographs, not all of them but some of them are going to be probably a little more graphic than some of the ones you've seen heretofore. If you just don't want to look at them, divert your eyes or look away. If anybody needs a break, pick up your hand. We will be happy to accommodate you. I don't think it's going to be too horrible, but it's nevertheless probably somewhat more graphic. Just as a heads up to you all.Romero presented the photographs, apologizing again to the jury for their graphic nature, and proceeded to question the ME about them. He did not object to the court's notice to the jury.
¶58 Romero now contends the trial court improperly expressed an opinion on evidentiary matters. By telling the jury "it did not need to give long or detailed consideration to the gruesome photographs," Romero asserts the court "told the jury to accept the expert opinions without an independent evaluation" of the evidence which clearly was a "specific[] comment[] on defense evidence." Romero argues that without independent evaluation, the jury would not be able to evaluate whether S.S.'s "injuries were caused by a penis or whether they were more likely caused by a baton such as the one [N.J.] had the next day."
¶59 Because Romero did not object to the trial court's comments at trial, we review them only for fundamental error. See Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d at 607. Error is fundamental if it "'go[es] to the foundation of the case, . . . takes from the defendant a right essential to his defense, and [is] of such magnitude that the defendant could not possibly have received a fair trial.'" State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). We will reverse only if Romero demonstrates he was actually prejudiced by the error. See Roque, 213 Ariz. 193, ¶ 65, 141 P.3d at 388.
¶60 Romero argues that the court's comments were fundamental error because they "affected the jury's evaluation of the physical injuries to [S.S.] and whether they demonstrated that [N.J.] likely caused them with his baton, supporting [Romero]'s third-party culpability defense." He further claims he was prejudiced because "a careful consideration of the injuries 'could have' led the jury to conclude that [N.J.] rather than [Romero] committed the crimes" and that we should order a new trial because the "other evidence did not overwhelmingly point to" Romero. We disagree.
¶61 Romero is correct that judges are prohibited from commenting on evidence. Article VI, § 27 of the Arizona Constitution states that "[j]udges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." A judge violates this prohibition by expressing an opinion as to what the evidence proves, thus interfering with the jury's independent evaluation of that evidence. State v. Rodriguez, 192 Ariz. 58, ¶ 29, 961 P.2d 1006, 1011 (1998). "'The word comment as used in the constitutional provision has been construed to mean the expression of opinion.'" State v. Summerlin, 138 Ariz. 426, 433, 675 P.2d 686, 693 (1983), quoting State v. Barnett, 111 Ariz. 391, 393, 531 P.2d 148, 150 (1975). We will not overturn the trial court's ruling unless there is "a reasonable probability a different verdict might have been reached if the error had not occurred." Jones v. Munn, 140 Ariz. 216, 221, 681 P.2d 368, 373 (1984).
¶62 The trial court here did not express an opinion as to what the evidence proved nor discuss the content of the photographs. The judge specifically stated that some jurors might find the exhibits graphic, depending on the person, and both the court and Romero had warned the jury that some of the photographs could be graphic. Romero does not allege that the court erred in its description of the photographs or that it offered any specific commentary as to what the photographs proved. See Rodriguez, 192 Ariz. 58, ¶ 29, 961 P.2d at 1011. We do not believe the court's efforts to prepare the jurors for photographs that might be difficult to view constitute an impermissible comment on the evidence.
¶63 Nor do we believe the court's comments affected the jury's independent evaluation of the ME's testimony. Romero does not allege what facts the jurors could have deduced from the photos that were contrary to the ME's testimony. While Romero claims the photographs show injuries that could not have been inflicted with a penis—and thus support his defense that N.J. committed the crimes with a baton—he did not question the ME about the instrument used to the inflict injuries. In light of the overwhelming evidence of Romero's guilt, we conclude that Romero has failed to demonstrate a "reasonable probability" the jury would have reached a different verdict absent the court's notice that the jury was about to view photographs of a graphic nature, see Munn, 140 Ariz. at 221, 681 P.2d at 373, or that he was denied a fair trial, Hunter, 142 Ariz. at 90, 688 P.2d at 982.
The ME discussed the allegedly "graphic" photographs depicting S.S.'s external genitalia, which had no injuries, and anus, which showed abrasions, contusions, and bruising. The ME described photographs of S.S.'s "neck contents," including the neck muscles, esophagus, trachea, epiglottis, and larynx, and indicated she found injuries there consistent with the wounds S.S. had on the outside of her neck, apparently caused by an "arm across her throat, hands around her throat, those kinds of things[.]" The ME then testified that S.S. had an abrasion along the back of her vagina as well as bruising and scrapes on her cervix, both consistent with possible penetration and/or blunt force trauma. The ME testified she could not determine whether the injuries were the result of consensual or non-consensual penetration, but that based on the constellation of injuries the wounds were "not consistent with a consen[s]ual penetration."
¶64 Finally, Romero has failed to demonstrate he was prejudiced by the trial court's notice to the jurors. See Roque, 213 Ariz. 193, ¶ 65, 141 P.3d at 388. The judge instructed the jury both before and after the close of evidence that it was their "duty to decide the facts . . . only from the evidence produced in court," and not to "take anything I may say or do . . . as indicating any opinion I have about the facts. You and you alone are the sole judges of the facts." Jurors were instructed that it was their duty to evaluate testimony and determine witness credibility, and to "[c]onsider all of the evidence in light of reason, common sense and experience." The jury, the court stated, should "not be concerned with any opinion that [they feel the judge has] about the facts." The jury thus was sufficiently instructed on its duty to independently evaluate the evidence. We presume that jurors follow the court's instructions, State v. Newell, 212 Ariz. 389, ¶ 68, 132 P.3d 833, 847 (2006), and conclude Romero has failed to demonstrate he was prejudiced by the court's comments, see Roque, 213 Ariz. 193, ¶ 65, 141 P.3d at 388.
Credit for Time Served
¶65 Romero finally argues, and the state agrees, that the trial court erred by not giving Romero credit for time served on his concurrent sentences. Romero was sentenced to a term of natural life for his conviction on count one and given credit for 942 days of time served. He also was sentenced to a seven-year term for count two, to run concurrent to the sentence for count one, and to another seven-year term for count three, to run consecutive to the sentence for count two. Romero was not given credit for time served for his sentences on counts two and three and asks us to correct them.
¶66 Romero concedes he did not raise this issue below and we thus are limited to review only for fundamental error. State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 603, 607 (2005). A trial court's failure to give proper presentence credit is fundamental error. See State v. Ritch, 160 Ariz. 495, 498, 774 P.2d 234, 237 (App. 1989).
¶67 A defendant is entitled to credit for "[a]ll time actually spent in custody pursuant to an offense until the prisoner is sentenced to imprisonment for such offense." A.R.S. § 13-712(B). Our supreme court has held that presentence incarceration credit applies to each concurrent sentence imposed, see State v. Cruz-Mata, 138 Ariz. 370, 374-76, 674 P.2d 1368, 1372-74 (1983), but the credit may only apply once when consecutive sentences are imposed, id. at 376, 674 P.2d at 1374; State v. Chavez, 172 Ariz. 102, 103, 834 P.2d 825, 826 (App. 1992). We thus agree that Romero was entitled to presentence incarceration credit on one of his seven-year sentences. We therefore modify the trial court's sentencing order to reflect credit for 942 days of presentence incarceration on count two. See State v. Stevens, 173 Ariz. 494, 496, 844 P.2d 661, 663 (App. 1992) (correcting presentence incarceration credit without remand to trial court); see also A.R.S. § 13-4037(B); Ariz. R. Crim. P. 31.17(b) and cmt.
Although these cases cite A.R.S. § 13-709(B), the statute was renumbered as § 13-712(B) in 2008. 2008 Ariz. Sess. Laws, ch. 301, § 27.
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Disposition
¶68 For the foregoing reasons, we affirm Romero's convictions, modify the trial court's sentencing order to reflect credit for presentence incarceration on count two, and affirm his sentences in all other respects.