Opinion
1 CA-CR 11-0438
08-07-2012
STATE OF ARIZONA, Appellee, v. JULIAN OLIBARRIA, Appellant.
Thomas C. Horne, Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and W. Scott Simon, Assistant Attorney General Attorneys for Appellee Ballecer & Segal, LLP by Natalee E. Segal Attorneys for 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(Not for Publication - Rule 111, Rules of the Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2008-048937-001 DT
The Honorable Susan M. Brnovich, Judge
AFFIRMED
Thomas C. Horne, Attorney General
by Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
and W. Scott Simon, Assistant Attorney General
Attorneys for Appellee
Phoenix Ballecer & Segal, LLP
by Natalee E. Segal
Attorneys for Appellant
Phoenix PORTLEY, Judge ¶1 Julian Olibarria ("Olibarria") appeals his convictions and sentences for armed robbery and argues that the court erred by denying his request for a mistrial. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
"We view the facts in the light most favorable to sustaining the convictions and resolve all reasonable inferences against [Olibarria]." State v. Jeffrey, 203 Ariz. 111, 112, ¶ 2, 50 P.3d 861, 862 (App. 2002) (citation omitted).
¶2 After Elmo K. drove into his garage in Sun City one evening in 2007, he and his passenger, Dorothy Z., were robbed at gunpoint. Along with Elmo's wallet and other valuables, the suspect took Dorothy's purse. Later that night, one of her bank cards was used to pay for pizzas delivered to a Glendale apartment. ¶3 The apartment's lessee, Connie C., told a detective that her brother and his girlfriend, Christina Harmon ("Harmon"), had been staying at her apartment when the pizzas were ordered. When contacted, Harmon told the detective that Olibarria may have been involved in the robbery. Based on the information, the detective showed the victims a photo line-up that included Olibarria, and Elmo instantly identified him as the robber. Dorothy indicated that Olibarria resembled the robber but was not sufficiently sure to make a definitive identification. ¶4 Olibarria was arrested and charged with two counts of armed robbery. During the trial, Dorothy testified that she told the robber that he was the son of God while he was threatening her life and demanding money. She added that she had heard that the robber later told an officer that he was tempted to stop the robbery when she said that, but continued because he needed the money. The defense objected and moved for a mistrial because Olibarria had never made the statement to the police. The State agreed that Olibarria had not made the statement, but argued that Dorothy's testimony was not prejudicial because she had not positively identified Olibarria as the robber. The court denied the motion for mistrial, instructed the jury to disregard the challenged testimony, and also told the jury that no such statement was ever made. ¶5 Olibarria was convicted, sentenced to two concurrent prison terms of ten and a half years each, and given credit for 914 days of presentence incarceration. We have jurisdiction over his appeal pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031, and -4033(A) (West 2012).
Neither Elmo nor Dorothy identified Connie C.'s brother in a photo line-up.
Olibarria was previously convicted of the same charges, but the convictions were reversed for reasons unrelated to this appeal. State v. Olibarria, 1 CA-CR 09-0350, 2010 WL 2836984, at *6, ¶ 26 (Ariz. App. July 20, 2010) (mem. decision).
DISCUSSION
¶6 Olibarria challenges the denial of the motion for mistrial and argues that the prejudicial effect of Dorothy's statement deprived him of a fair trial. We review the denial for an abuse of discretion. State v. Jones, 197 Ariz. 290, 304, ¶ 32, 4 P.3d 345, 359 (2000) (citation omitted); State v. Marshall, 197 Ariz. 496, 500, ¶ 10, 4 P.3d 1039, 1043 (App. 2000) (citation omitted). Mindful of the court's broad discretion "to determine whether the evidence will actually affect the outcome of the trial," we examine whether Dorothy's comment drew attention to evidence that the jury could not consider and, if so, whether the court properly resorted to a less drastic remedy to cure the error. Jones, 197 Ariz. at 304, ¶ 32, 4 P.3d at 359 (citations omitted); accord State v. Laird, 186 Ariz. 203, 207, 920 P.2d 769, 773 (1996) (citation omitted) ("In deciding whether a mistrial is warranted, we consider (1) whether the jury has heard what it should not hear, and (2) the probability that what it heard influenced them."). ¶7 Olibarria argues that a new trial was required because Dorothy effectively testified that he confessed to the crime when he had not. He cites United States v. Narciso for the proposition that Dorothy's erroneous testimony was particularly prejudicial because the State's case against him was weak. 446 F. Supp. 252, 325-26 (E.D. Mich. 1976) (citations omitted). We disagree. ¶8 Unlike the facts in Narciso, there was sufficient evidence to convict Olibarria without the challenged statement. Elmo reaffirmed his photo line-up identification and identified Olibarria in front of the jury. Harmon testified and confirmed her previous statements to the detective implicating Olibarria; specifically, she had testified that she met Olibarria through her boyfriend and had a relationship with him, that he provided the bank card used to pay for the pizza delivery the night of the robbery, and that he subsequently took her to an ATM to withdraw cash with the same card. ¶9 Olibarria's account was inconsistent with Harmon's version of events; in fact, he denied even knowing Harmon. However, the information Harmon provided was consistent during her three separate interviews with the detective, and consistent with other information police knew about the robbery. The detective also testified that the apartment to which the pizzas were delivered was only a couple of miles away from the ATM where Harmon withdrew $300 from Dorothy's account. And, he pointed out that the victims' description of the suspect immediately after the robbery was consistent with Olibarria's physical appearance at the time of his interview. Thus, despite Olibarria's argument on appeal that there was no physical proof to tie him to the crime, there was considerable evidence from which the jury could conclude that Olibarria had committed the armed robberies. See Laird, 186 Ariz. at 207, 920 P.2d at 773 (where inadmissible testimony comprised insignificant portion of evidence available for jury's consideration, striking and instructing jury to disregard responses cured the error). ¶10 Moreover, the court struck Dorothy's statement and instructed the jury not to consider it, and we presume that the jury followed the instruction, as well as the preliminary and final instructions directing jurors to disregard testimony stricken from the record. State v. Newell, 212 Ariz. 389, 403, ¶ 68, 132 P.3d 833, 847 (2006) (citation omitted); State v. Dunlap, 187 Ariz. 441, 461, 930 P.2d 518, 538 (App. 1996) (citations omitted). As a result, any prejudice caused by Dorothy's isolated statement was minimal and there was no abuse of discretion when the court denied the motion for mistrial.
Harmon is serving sentences for numerous felony convictions, including the fraudulent use of Dorothy's bank card.
The jury instructions explicitly stated that "[i]f testimony is ordered stricken from the record, [jurors] must not consider that testimony for any purpose."
Although the portion of the trial transcript in which the court responded to Olibarria's objection and request for a mistrial is missing from the record, the corresponding minute entry and a transcribed subsequent exchange persuade us that the court instructed the jury to disregard Dorothy's statement and explained that the statement was false. See State v. Schackart, 175 Ariz. 494, 499, 858 P.2d 639, 644 (1993) (relying on minute entries to reject defendant's claim that record was incomplete); State v. Vallejos, 89 Ariz. 76, 81, 358 P.2d 178, 181 (1960) (indicating that reliance on "either the transcript of record or the minute entries" is appropriate to verify a claim) (emphasis added).
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CONCLUSION
¶11 Based on the foregoing reasons, Olibarria's convictions and sentences are affirmed.
_________________
MAURICE PORTLEY, Presiding Judge
CONCURRING: _________________
PHILIP HALL, Judge
_________________
DIANE M. JOHNSEN, Judge