Opinion
2 CA-CR 2011-0334
02-05-2013
THE STATE OF ARIZONA, Appellant/Cross-Appellee, v. AJELINA LOUISE ROTH LEWIS, Appellee/Cross-Appellant.
Edward G. Rheinheimer, Cochise County Attorney By Brian M. McIntyre Bisbee Attorneys for Appellant/Cross-Appellee Harriette P. Levitt Tucson Attorney for Appellee/Cross-Appellant
NOTICE: 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. 31.24
MEMORANDUM DECISION
Not for Publication
Rule 111, Rules of
the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY
Cause No. CR201000285
Honorable Wallace R. Hoggatt, Judge
AFFIRMED AND REMANDED
Edward G. Rheinheimer, Cochise County Attorney
By Brian M. McIntyre
Bisbee
Attorneys for Appellant/Cross-Appellee
Harriette P. Levitt Tucson
Attorney for Appellee/Cross-Appellant
HOWARD, Chief Judge. ¶1 The state appeals from the trial court's order granting Ajelina Lewis's motion to vacate judgment based on the prosecutor's improper remarks about Lewis's choice not to testify at trial. Lewis cross-appeals, arguing the court erred in not considering her second argument in her motion to vacate judgment regarding the prosecutor's comments on premeditation and contending double jeopardy bars a re-trial. Because we find no error, we affirm.
Factual and Procedural Background
¶2 The relevant factual and procedural background is undisputed. During the state's closing argument at Lewis's jury trial on the charges of murder and evidence tampering, the prosecutor began discussing the burden of proof and what he had to prove to meet this burden, emphasizing that the state need not prove "every little detail that happened that night." The prosecutor went on to state: "There[ are] two people who know what happened that night. One of them is dead. And one of them is on trial right now." Lewis did not object to the prosecutor's comment during trial. The prosecutor also stated during his closing argument that premeditation requires reflection, which "can be as instantaneous as successive thoughts of the mind." Lewis objected to this comment at trial, but the trial court overruled her objection. ¶3 The jury convicted Lewis of premeditated first-degree murder and tampering with physical evidence. The trial court subsequently sentenced Lewis to two consecutive terms of imprisonment, the longest of which was a term of life imprisonment. She filed a motion to vacate judgment under Rule 24.2, Ariz. R. Crim. P., claiming the state had commented improperly on her choice not to testify at trial and had argued an incorrect definition of premeditation during closing arguments. ¶4 The trial court granted Lewis's motion, finding the prosecutor's statement impermissibly commented on Lewis's failure to take the stand. The court found that the comment, taken in context, would lead the jury to arrive at the natural and inevitable interpretation that Lewis was the only other witness in the courtroom and that she was not willing to speak for herself. The court concluded the statements were fundamentally erroneous and not "harmless." The state appealed, and Lewis filed a cross-appeal.
Motion to Vacate Judgment
¶5 The state argues the trial court erred by vacating the judgment because the prosecutor's comment during closing argument was not an improper statement on Lewis's right to choose not to testify at trial. The state further argues the court erred by not reviewing the statement in the context of the entire record. The trial court is in the "best position" to evaluate the evidence when reviewing a motion pursuant to Rule 24.2, Ariz. R. Crim. P., State v. Hickle, 133 Ariz. 234, 237-38, 650 P.2d 1216, 1219-20 (1982), and it is entitled to "broad discretion," State v. Jeffers, 135 Ariz. 404, 426, 661 P.2d 1105, 1127 (1983). In reviewing for an abuse of discretion, "[w]e defer to the trial court's factual findings that are supported by the record and not clearly erroneous." See State v. Rosengren, 199 Ariz. 112, ¶ 9, 14 P.3d 303, 307 (App. 2000). A trial court abuses its discretion if it errs in applying the law. See State v. Miller, 226 Ariz. 202, ¶ 7, 245 P.3d 887, 891 (App. 2010). ¶6 Rule 24.2 permits a trial court to vacate a judgment if "the conviction was obtained in violation of the United States or Arizona Constitutions." Both the United States and Arizona Constitutions prohibit the prosecutor from making a direct or indirect comment about the defendant's failure to testify. See State v. Rutledge, 205 Ariz. 7, ¶ 26, 66 P.3d 50, 55 (2003); see also A.R.S. § 13-117(B) (defendant's refusal to testify shall not prejudice him or be used against him in trial or proceedings). To determine whether a prosecutor's statement is improper, the court must look at the context in which it was made and determine "whether the jury would naturally and necessarily perceive it to be a comment on the defendant's failure to testify." Rutledge, 205 Ariz. 7, ¶ 33, 66 P.3d at 56. However, "[t]he State may comment that facts in the case are uncontradicted unless the defendant is or appears to be 'the only one who could explain or contradict the evidence offered by the state.'" State v. Blackman, 201 Ariz. 527, ¶ 74, 38 P.3d 1192, 1210 (App. 2002), quoting State v. Still, 119 Ariz. 549, 551, 582 P.2d 639, 641 (1978). ¶7 During closing argument, while discussing the state's burden of proof, the prosecutor stated: "There[ are] two people who know what happened that night. One of them is dead. And one of them is on trial right now." Lewis concedes she did not object during trial, although she argued in a motion to vacate her judgment that the state had committed fundamental error by commenting on her choice not to testify at trial. Lewis did not argue below that the prosecutor's comment prejudiced her, but instead claimed that prejudice is presumed under State v. Smith, 101 Ariz. 407, 420 P.2d 278 (1966). But, the state failed to argue below that fundamental error review requires Lewis to prove prejudice. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607-08 (2005). ¶8 The trial court granted Lewis's motion, concluding the prosecutor impermissibly commented on Lewis's failure to take the stand. The court found that the comment, taken in its context, would lead the jury to arrive at the natural and inevitable interpretation that Lewis was the only other witness in the courtroom and she was not willing to speak for herself. The court accordingly concluded the statement was fundamentally erroneous. ¶9 Having determined the error was fundamental, the court then concluded that the error was not "harmless." In so doing, it applied the wrong legal standard in determining prejudice. Because Lewis failed to object timely to the statement at trial, the court should have placed the burden to establish prejudice on her and considered prejudice in the fundamental error context. Cf. State v. Valverde, 220 Ariz. 582, ¶¶ 10-12, 208 P.3d 233, 235-36 (2009) (defendant has burden on appeal of proving prejudice under fundamental error review; harmless error review applies only when defendant properly objects at trial and state's burden to prove error harmless). But, because the state failed to raise this as an argument here, any claim regarding the error is waived on appeal. See Ariz. R. Crim. P. 31.13(c)(1)(vi) (appellant's brief shall include an argument stating party's contentions, reasons therefor, and necessary supporting authority); State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) ("Failure to argue a claim on appeal constitutes waiver of that claim."). ¶10 The state argues the trial court abused its discretion in granting Lewis's motion to vacate judgment by finding the prosecutor's comment impermissibly highlighted Lewis's failure to testify and claims similar statements have been approved as not violating a defendant's right to refuse to testify. But the court found the prosecutor's comment to be improper because of the comment's contents and also because of the context in which it was made. In making this ruling, the court relied on State v. Still, 119 Ariz. 549, 582 P.2d 639 (1978), recognizing that it was not "directly on point" but was more closely analogous to the present case. ¶11 In Still, the prosecutor argued to the jury that he had not "heard an explanation for why [the defendant] told [the victim] the story about having a mine down in Mexico," a fact pertinent to the defendant's charge of grand theft by false pretenses. Id. at 550-51, 582 P.2d at 640-41 (emphasis omitted). The prosecutor also pointed at the defense table while making this statement. Id. at 551, 582 P.2d at 641. Our supreme court determined the jury would be compelled to conclude the defendant was "the only person who could possibly contradict or explain the State's evidence" because the only two people involved in this conversation were the victim and the defendant. Id. The court also noted that the prosecutor's gesture of pointing at the defense table emphasized the defendant's failure to testify to his side of the story. Id. The court therefore held the statements to be unconstitutional comments on the defendant's right to remain silent. Id. ¶12 Here, the prosecutor directly commented on the fact that Lewis was the only person who could contradict or explain the state's evidence against her other than the victim who was killed. The trial court considered these statements in the context of the prosecutor explaining that the state need not prove every detail under its burden of proof. When taken in context, the court did not abuse its discretion by concluding the prosecutor's statements highlighted the defendant's choice not to testify and constituted an impermissible comment on her right to remain silent. ¶13 The state cites the following three cases decided by our supreme court as examples of when a prosecutor made similar comments that were not found to be reversible or fundamental error: State v. Cook, 170 Ariz. 40, 821 P.2d 731 (1991), State v. Pierson, 102 Ariz. 90, 425 P.2d 115 (1967), and State v. Karstetter, 110 Ariz. 539, 521 P.2d 626 (1974). However, we may distinguish those cases from the present situation because the trial court here concluded the prosecutor was commenting directly on the defendant's failure to testify, rather than rebutting a defense, and because the state has made no argument on appeal challenging the trial court's prejudice finding. See Cook, 170 Ariz. at 51, 821 P.2d at 742 (trial court found prosecutor's comments addressed defendant's witness's testimony on alibi defense); Pierson, 102 Ariz. at 91-92, 425 P.2d at 116-17 (first statement attacking weakness of defendant's alibi witness and second statement answering defense counsel's argument that no other witness testimony presented by state besides victim); Karstetter, 110 Ariz. at 545, 521 P.2d at 632 (comments not prejudicial after reviewing statements in relation to insanity defense and overwhelming evidence of defendant's guilt). ¶14 In this case, Lewis's defense was that an intruder was responsible for killing the victim and she only saw a "glimpse" of the intruder before leaving the victim's residence to get help. Therefore, the prosecutor's comment that Lewis was the only other person besides the victim who knew what happened was not a comment rebutting Lewis's defense that she did not know what happened, but instead was addressing her failure to testify. Accordingly, the trial court did not abuse its discretion in finding that the statement was not made to attack any defense presented by Lewis. ¶15 Our resolution of this very close issue, however, is buttressed by the trial court's conclusion that the prosecutor's statement constituted a comment on Lewis's right against self-incrimination. Because we are unable to review any prejudice finding, we cannot conclude the court abused its "broad discretion" in vacating the verdicts. See Jeffers, 135 Ariz. at 426, 661 P.2d at 1127. ¶16 The state also argues the trial court erred by not reviewing the entire record or closing argument before ruling on the motion to vacate. However, as discussed above, the court explained the context in which the prosecutor made the statement at issue and also discussed the underlying facts of the case in its ruling. Further, the court relied on case law directing it to look at the context in which the prosecutor's argument was made to determine whether the comment was impermissibly highlighting Lewis's failure to testify. See Rutledge, 205 Ariz. 7, ¶ 33, 66 P.3d at 56. Because no evidence supports the state's assertion and we presume the court knows the law and correctly applied it, we conclude the court did not abuse its discretion. See State v. Trostle, 191 Ariz. 4, 22, 951 P.2d 869, 887 (1997) (when no evidence supports contrary assertion, we presume trial court knows law and properly applies it in making decision). ¶17 Lewis argues on cross-appeal the trial court erred in not considering her argument on the prosecutor's comments about premeditation and vacating her judgment on that ground as well. Here, the court's ruling granting the motion to vacate judgment favored Lewis. On appeal, Lewis's argument is merely an assertion of an additional ground for affirming the court's ruling. Because we uphold the court's ruling on the ground stated, we do not address the merits of her remaining argument. See, e.g., State v. Kinney, 225 Ariz. 550, n.2, 241 P.3d 914, 918 n.2 (App. 2010) (appellate court may uphold trial court's ruling if legally correct for any reason).
Double Jeopardy
¶18 Lewis argues on cross-appeal that double jeopardy prevents a new trial on her first-degree murder and tampering with physical evidence charges because her judgment and convictions were vacated. The state counters that double jeopardy does not bar a new trial and that we need not address this argument because the trial court did not rule on Lewis's motion to preclude retrial for violation of double jeopardy because it was without jurisdiction to do so. Without deciding whether the court has jurisdiction to decide the motion to preclude retrial below, we do not address Lewis's argument on appeal because appellate courts should not issue advisory opinions. State v. Bernini, 220 Ariz. 536, ¶ 10, 207 P.3d 789, 792 (App. 2009). ¶19 When a conviction is vacated, the state must elect whether to retry a defendant if permitted. See State v. Sprang, 227 Ariz. 10, ¶ 19, 251 P.3d 389, 394 (App. 2011). And the prohibition against double jeopardy "is not violated absent threat of either multiple punishment or successive prosecutions." State v. Guerra, 161 Ariz. 289, 292, 778 P.2d 1185, 1188 (1989). Because we do not know whether the state will seek to retry Lewis for premeditated first-degree murder or tampering with physical evidence, and we will not issue advisory opinions, we do not reach this issue. See United States v. Corona, 34 F.3d 876, 882 n.5 (9th Cir. 1994) (double jeopardy claim not ripe until government "attempt[s] a second prosecution"); see also Abney v. United States, 431 U.S. 651, 660-62 (1977) (permitting pre-trial review of double jeopardy challenge to indictment). ¶20 Additionally, Lewis's motion to preclude retrial is still pending in the trial court. It alleges that the prosecutor's actions were intentional and therefore double jeopardy should bar any retrial. Such determinations are more appropriately made in the first instance by the trial court. See State v. Medrano-Barraza, 190 Ariz. 472, 474-75, 949 P.2d 561, 563-64 (App. 1997) (remand to trial court proper remedy when alleged constitutional violation involves fact-intensive inquiry). Should it become necessary, "'the appropriate vehicle'" for a double jeopardy claim is a petition for special action after the initiation of a second proceeding, after the trial court has ruled on the matter. State v. Wilson, 207 Ariz. 12, ¶¶ 2-3, 6, 82 P.3d 797, 798-99 (App. 2004), quoting Nalbandian v. Superior Court, 163 Ariz. 126, 130, 786 P.2d 977, 981 (App. 1989).
A defendant also may raise a double jeopardy claim by appeal. State v. Felix, 214 Ariz. 110, ¶¶ 6-14, 149 P.3d 488, 489-91 (App. 2006).
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Conclusion
¶21 For the foregoing reasons, we affirm the trial court's ruling vacating judgment in favor of Lewis and remand for proceedings consistent with our decision.
______________________________
JOSEPH W. HOWARD, Chief Judge
CONCURRING: ____________________________________
PETER J. ECKERSTROM, Presiding Judge
__________________________
J. WILLIAM BRAMMER, JR., Judge
A retired judge of the Arizona Court of Appeals authorized and assigned to sit as a judge on the Court of Appeals, Division Two, pursuant to Arizona Supreme Court Order filed December 12, 2012.