Opinion
No. 1 CA-CR 13-0035
03-26-2015
STATE OF ARIZONA, Appellee, v. JAMES DANIEL TALBO, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Alice Jones Counsel for Appellee Droban & Company, PC, Anthem By Kerrie M. Droban Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR 2010-152582-001
The Honorable Jo Lynn Gentry, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Alice Jones
Counsel for Appellee
Droban & Company, PC, Anthem
By Kerrie M. Droban
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in which Judge Patricia A. Orozco and Judge Michael J. Brown joined. THUMMA, Judge:
¶1 James Daniel Talbo appeals his convictions and sentences for first degree murder and misconduct involving weapons. Talbo argues the superior court erred by limiting his cross-examination of two witnesses and denying a motion for mistrial. He also argues the prosecutor impermissibly commented on his right to remain silent during closing argument and the superior court committed fundamental error in failing to conduct a colloquy before accepting his stipulation to two prior felony convictions. Finding no reversible error, Talbo's convictions and resulting sentences are affirmed.
FACTS AND PROCEDURAL HISTORY
On appeal, this court views the evidence in the light most favorable to sustaining the convictions and resolves all reasonable inferences against defendant. State v. Karr, 221 Ariz. 319, 320 ¶ 2, 212 P.3d 11, 12 (App. 2008).
¶2 Talbo was indicted on charges of first degree premeditated murder and misconduct involving weapons stemming from the fatal shooting of O.D. For sentencing purposes, the State further alleged that Talbo had three prior felony convictions.
Initials are used to protect the victim's privacy. State v. Maldonado, 206 Ariz. 339, 341 n. 1 ¶ 2, 78 P.3d 1060, 1062 n. 1 (App.2003).
¶3 The jury at Talbo's first trial found him guilty on the misconduct involving weapons charge, but was unable to reach a verdict on the murder charge. A second jury trial resulted in Talbo being found guilty of first degree murder as charged. The superior court sentenced Talbo to natural life on the murder conviction with a consecutive aggravated twelve-year prison term on the misconduct involving weapons conviction. This court has jurisdiction over Talbo's timely appeal pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031, and -4033(A)(1) (2015).
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.
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DISCUSSION
I. Limitation On Cross-Examination.
¶4 Talbo argues the superior court violated his confrontation rights by limiting his cross-examination of two trial witnesses. This court generally reviews rulings on the admissibility of evidence for an abuse of discretion. State v. Ellison, 213 Ariz. 116, 129 ¶ 42, 140 P.3d 899, 912 (2006). Rulings implicating the Confrontation Clause, however, are reviewed de novo. Id.
¶5 A criminal defendant's constitutional confrontation right includes the right to cross-examination. See U.S. Const. amend. VI; Ariz. Const. art 2, § 24; Crawford v. Washington, 541 U.S. 36, 54 (2004). The right of cross-examination under the Confrontation Clause, however, is not unqualified; it is "'limited to the presentation of matters admissible under ordinary evidentiary rules.'" State v. Riggs, 189 Ariz. 327, 333, 942 P.2d 1159, 1165 (1997) (citations omitted). The superior court "exercises considerable discretion in determining the proper extent of cross-examination," State v. Doody, 187 Ariz. 363, 374, 930 P.2d 440, 451 (App. 1996), and the Confrontation Clause guarantees are violated only where cross-examination is "unreasonably limited," State v. Dunlap, 125 Ariz. 104, 105, 608 P.2d 41, 42 (1980).
¶6 During cross-examination of a detective, the superior court sustained the State's objections to a series of questions that sought to elicit testimony regarding inconsistencies in three eyewitness identifications of the shooter. Talbo's counsel told the court the questions were directed at exploring whether testimony by the other witnesses "would change the way [the detective] looks at the case." The court sustained the objections on the grounds that the questions were directed to matters that were for the jury to decide.
¶7 On appeal, Talbo asserts that the purpose for questioning the detective about inconsistencies in the eyewitness testimony was to explore whether the detective would believe certain witnesses over other witnesses to show motive and bias on the part of one of the eyewitnesses. A witness may not comment on the credibility of other witnesses. See State v. Cox, 217 Ariz. 353, 357 ¶ 27, 174 P.3d 265, 270 (2007) ("'No rule is better established than that the credibility of the witnesses and the weight and value to be given to their testimony are questions exclusively for the jury.'") (citations omitted); State v. Lindsey, 149 Ariz. 472, 475, 720 P.2d 73, 76 (1986) (holding expert witnesses should not provide opinions about "accuracy, reliability or credibility of a particular witness in the case being tried"); State v. Reimer, 189 Ariz. 239, 240-41, 941 P.2d 912, 913-14 (App. 1997) (explaining testimony offered by police officer regarding victim's credibility was not admissible "because Arizona courts have expressly determined that neither expert nor lay witnesses assist the trier of fact to understand the evidence or to determine a fact in issue when they merely opine on the truthfulness of a statement by another witness"). Accordingly, the court properly sustained the State's objection to this line of cross-examination as it was directed at a matter solely within the province of the jury.
¶8 Talbo also argues the superior court erred by precluding cross-examination of another witness about the fact that the first trial ended in a hung jury on the murder charge. This witness, who had shared a jail cell with Talbo for a month between the first and second trials, testified that Talbo made several incriminating statements about the murder while they were held together. During cross-examination, the witness referred to the "last trial," at which point Talbo argued that he should be able to question the witness about his knowledge that the last trial ended in a hung jury. Noting that the jury already knew that there was a previous trial because the parties stipulated "that on May 14th Mr. Talbo was tried and convicted of the possession of the gun," the court denied the request, noting it would be inappropriate to inform the jury that there had been a hung jury on the murder charge in the previous trial. Talbo then argued that, rather than telling the jury that the last trial ended in a mistrial, he should be able to ask about the witness's understanding of whether there was a mistrial for the purpose of proving the witness's motivation for contacting the prosecutor to obtain a plea deal. The court ruled that Talbo would not be permitted to do so, noting the court did not believe "the jury is going to make that distinction."
¶9 The inability of the jury at the first trial to reach a verdict on the murder charge had no relevancy to the second trial, and the court was justifiably concerned that informing the second jury about the outcome of the first trial might improperly affect their deliberations. The court may reasonably restrict cross-examination based on concerns of prejudice and confusion of the issues. See, e.g., State v. Cañez, 202 Ariz. 133, 153 ¶ 62, 42 P.3d 564, 584 (2002); Ariz. R. Evid. 403. In determining whether a limitation on cross-examination constitutes a Confrontation Clause violation, the test is "whether [the] jury is otherwise in possession of sufficient information to assess the bias and motives of the witness." State v. Bracy, 145 Ariz. 520, 533, 703 P.2d 464, 477 (1985). Here, given the extensive cross-examination of the witness by Talbo that, among other things, fully developed the favorable terms of the plea deal the witness obtained, the jury had more than sufficient information to assess the bias and motivation of this witness. The court did not improperly limit cross-examination of the witness. II. Motion For Mistrial.
¶10 During direct examination of a witness at the second trial, the prosecutor asked, "Were you aware that your friend James had -- and you have to look at him [Talbo] to get your -- your answers." The witness replied, "I can't even see that far." Talbo objected and moved for a mistrial, arguing the prosecutor's question improperly insinuated that the witness was getting directions from the defense. The superior court denied the motion, but ruled that something could be provided to the jury regarding the prosecutor's question. Talbo agreed to have the prosecutor make a statement to the jury to clarify the intent of the question. Before calling the next witness, the prosecutor told the jury, "I just wanted to clarify that when I admonished the witness about looking at me and not looking over towards the defense, that comment was based on the witness's conduct, and not anything inappropriate that I saw [defense counsel] or Mr. Talbo doing, but just an admonition to the witness to be looking at me and not elsewhere for answers."
¶11 On appeal, Talbo argues the superior court erred in denying his motion for mistrial. Declaring a mistrial "is the most dramatic remedy for trial error and should be granted only when it appears that justice will be thwarted unless the jury is discharged and a new trial granted." State v. Adamson, 136 Ariz. 250, 262, 665 P.2d 972, 984 (1983) (citation omitted). In determining whether to grant a mistrial, the court considers "whether the remarks call attention to information that the jurors would not be justified in considering for their verdict, and whether the jurors in a particular case were influenced by the remarks." State v. Jones, 197 Ariz. 290, 304 ¶ 32, 4 P.3d 345, 359 (2000) (citation omitted). The remedy for an improper remark rests within the sound discretion of the court, which must evaluate the situation and decide an appropriate course of action in light of the specific facts and circumstances presented. See Adamson, 136 Ariz. at 262, 665 P.2d at 984. This court appropriately gives deference to the superior court's ruling because it "is in the best position to evaluate 'the atmosphere of the trial, the manner in which the objectionable statement was made, and the possible effect it had on the jury and the trial.'" State v. Bible, 175 Ariz. 549, 598, 858 P.2d 1152, 1201 (1993) (citation omitted).
¶12 There was no abuse of discretion in denying the motion for mistrial. In requesting the mistrial, Talbo conceded that the prosecutor did not intend to insinuate that Talbo or his counsel had done anything improper. Furthermore, regardless of the prosecutor's intent, the question involved a single remark that on its face was directed solely at the witness. Accordingly, the court could reasonably conclude that a statement to the jury about the question would be sufficient to remedy any potential prejudice. The court acted well within its discretion in refusing to declare a mistrial. See State v. Patterson, 230 Ariz. 270, 276 ¶ 25, 283 P.3d 1, 7 (2012) (holding prosecutor's misstatement of law did not require mistrial when prosecutor corrected misstatement). III. Prosecutorial Misconduct.
¶13 During opening statements at both trials, defense counsel detailed testimony Talbo would provide. Talbo, however, did not testify at either trial. During the State's closing argument at the first trial, the prosecutor referenced the need for the jury to decide the case based on the evidence (not statements by counsel):
One of the instructions that you've been given in this case is an instruction that tells you that the lawyer's comments are not evidence. In opening statements, a lot of promises were made to you about what the defendant was going to say, and while the defendant has a right not to testify and you are not to hold that against him if he doesn't, just remember that you cannot use those representations that were given to you by the defense because the defendant didn't testify to those things. You're to evaluate the case from the evidence that you heard from the witness stand in this trial.
¶14 Similarly, during the State's closing argument at the second trial, the prosecutor referenced the need for the jury to decide the case based on the evidence (not statements by counsel) as follows:
Now in opening statement a lot of promises were made to you about, for example, about what the defendant will testify to. And the defendant does have a right not to testify and you are not in any way, shape, or form to hold that against him in this particular case. I want to be very clear about that. But at the same time because [a] lawyer's comments are not evidence, you cannot use any of the representations that were made to you by the defense because you didn't hear any testimony from the defense.On appeal, Talbo argues that these remarks by the prosecutor in closing argument constituted improper comments on his Fifth Amendment right not to testify.
¶15 Although prosecutors are granted "wide latitude" in closing argument, Jones, 197 Ariz. at 305 ¶ 37, 4 P.3d at 360, it is generally error for a prosecutor to refer to a defendant's refusal to testify, a right guaranteed by both constitutional and statutory law, U.S. Const. amend. V; Ariz. Const. art. 2 § 10; A.R.S. § 13-117(B); Griffin v. California, 380 U.S. 609, 615 (1965); State v. Arredondo, 111 Ariz. 141, 143, 526 P.2d 163, 165 (1974). This rule, however, is not absolute. "Statements which are a fair rebuttal to an area opened by the defense do not violate the fifth amendment." State v. Gillies, 135 Ariz. 500, 510, 662 P.2d 1007, 1017 (1983) (citation omitted); see also United States v. Robinson, 485 U.S. 25, 32 (1988) (holding where "prosecutor's reference to the defendant's opportunity to testify is a fair response to a claim made by defendant or his counsel, we think there is no violation of the privilege").
¶16 "To be constitutionally proscribed, a comment must be adverse; that is, it must support an unfavorable inference against the defendant and, therefore, operate as a penalty imposed for exercising a constitutional privilege." State v. Mata, 125 Ariz. 233, 238, 609 P.2d 48, 53 (1980) (citation omitted). "Whether a prosecutor's comment is improper depends upon the context in which it was made and whether the jury would naturally and necessarily perceive it to be a comment on the defendant's failure to testify." State v. Rutledge, 205 Ariz. 7, 13 ¶ 33, 66 P.3d 50, 56 (2003) (citation omitted).
¶17 Viewed in context, the challenged remarks simply informed the jurors that defense counsel's opening statement was not evidence and that the representations made could not be considered because there was no evidence to support them. See State v. Rosas-Hernandez, 202 Ariz. 212, 219 ¶ 24, 42 P.3d 1177, 1184 (App. 2002) ("When defense counsel takes the calculated risk of setting forth a detailed accounting of defendant's testimony -- knowing full well that there is no other factual support for defendant's anticipated testimony and that the defendant may choose not to testify -- the opening statement is clearly subject to attack just as the prosecutor . . . did here."); State v. McGonigle, 103 Ariz. 267, 271, 440 P.2d 100, 104 (1968) ("Where defense counsel promises to prove certain facts and fails to do so the prosecutor can comment on this failure of proof.").
¶18 Further, there was no inference from the remarks that Talbo should be penalized for not testifying. To the contrary, the prosecutor took care to emphasize, consistent with the final jury instructions, that Talbo's decision not to testify cannot and should not be held against him. And the superior court instructed the jury that lawyers' comments are not evidence, that Talbo was not required to testify and that the jury could not let his decision not to testify affect deliberations in any way. Under these circumstances, the prosecutor's closing arguments were fair rebuttal to defense counsel's opening statements and did not constitute an improper comment on Talbo's exercise of his right not to testify. See Wise v. State, 751 A.2d 24, 34-35 (Md. Ct. Spec. App. 2000) (finding no constitutional violation when defense counsel's promise in opening statement that defendant would produce evidence, but thereafter fails to do so, "open[s ]the door to the fair comment upon that failure, even to the extent of incidentally drawing attention to the defendant's exercising a constitutional right not to testify."); cf. Robinson, 485 U.S. at 26, 33-34 (declining to "expand Griffin to preclude a fair response by the prosecutor" where defendant argued, in closing, that the prosecution had not allowed him "to explain his side of the story"). IV. Prior Convictions.
¶19 Before trial, the State alleged that Talbo had three prior felony convictions that constituted historical prior convictions and aggravating circumstances. At the conclusion of both trials, Talbo stipulated to having two allegeable prior felony convictions for sentencing purposes to eliminate the need for the State having to prove them at an aggravation hearing. At sentencing, based on the stipulation, the court found that Talbo had two historical felony convictions and imposed an enhanced aggravated twelve-year prison term on the conviction for misconduct involving weapons.
¶20 Talbo argues the superior court erred in imposing the enhanced aggravated sentence on his conviction for misconduct involving weapons based on his prior convictions without conducting a colloquy pursuant to Rule 17.6 of the Arizona Rules of Criminal Procedure. Because Talbo failed to raise this issue below, our review is limited to fundamental error. State v. Henderson, 210 Ariz. 561, 567 ¶ 19, 115 P.3d 601, 607 (2005). To show fundamental error, Talbo "'bears the burden to establish that "(1) error exists, (2) the error is fundamental, and (3) the error caused him prejudice."'" State v. James, 231 Ariz. 490, 493 ¶ 11, 297 P.3d 182, 185 (App. 2013) (citations omitted).
¶21 "Whenever a prior conviction is charged, an admission thereto by the defendant shall be accepted only under the procedures of this rule, unless admitted by the defendant while testifying on the stand." Ariz. R. Crim. P. 17.6. This means that before a superior court may accept a defendant's admission to a prior conviction, it "must advise the defendant of the nature of the allegation, the effect of admitting the allegation on the defendant's sentence, and the defendant's right to proceed to trial and require the State to prove the allegation." State v. Anderson, 199 Ariz. 187, 194 ¶ 36, 16 P.3d 214, 221 (App. 2000); see also Ariz. R. Crim. P. 17.2, 17.3, 17.6. "A complete failure to afford a Rule 17.6 colloquy is fundamental error because a defendant's waiver of constitutional rights must be voluntary and intelligent." State v. Morales, 215 Ariz. 59, 61 ¶ 10, 157 P.3d 479, 481 (2007).
¶22 Although the superior court did not conduct a Rule 17.6 colloquy before accepting the stipulation to the prior convictions, this court will reverse a sentence imposed in violation of Rule 17.6 only if the defendant was prejudiced by the error. Id., 215 Ariz. at 62 ¶ 11, 157 P.3d at 482. To show prejudice, a defendant must, "at the very least," assert that he would not have admitted the prior felony convictions had a colloquy taken place. See State v. Young, 230 Ariz. 265, 269 ¶ 11, 282 P.3d 1285, 1289 (App. 2012). Talbo makes no such assertion. Nor is there any suggestion "that he was not convicted of the felonies at issue or that the State would have been unable to produce the needed documentary evidence of his prior convictions if he had refused to stipulate." See id. On this record, Talbo has failed to meet his burden of showing prejudice. See State v. Miller, 215 Ariz. 40, 44 ¶ 13, 156 P.3d 1145, 1149 (App. 2007).
CONCLUSION
¶23 Talbo's convictions and sentences are affirmed.