Opinion
No. 2 CA-CR 2013-0002
06-20-2014
THE STATE OF ARIZONA, Appellee, v. ANTHONY RICO, Appellant.
Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Kathryn A. Damstra, Assistant Attorney General, Tucson Counsel for Appellee Emily Danies, 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NOT FOR PUBLICATION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. 20103436001
The Honorable Michael J. Cruikshank, Judge
AFFIRMED
COUNSEL
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Kathryn A. Damstra, Assistant Attorney General, Tucson
Counsel for Appellee
Emily Danies, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Chief Judge Howard authored the decision of the Court, in which Presiding Judge Vásquez and Judge Kelly concurred. HOWARD, Chief Judge:
¶1 Following a jury trial, Anthony Rico was convicted of first-degree murder, first-degree burglary, and conspiracy to commit first-degree murder. On appeal, he argues that the trial court improperly found that a witness was unavailable, thus allowing the witness's prior testimony to be read into evidence, that insufficient evidence supported the burglary conviction, and that the prosecutor committed misconduct during closing arguments. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the convictions. See State v. Mangum, 214 Ariz. 165, ¶ 3, 150 P.3d 252, 253 (App. 2007). In September 2010, Rico, K.B., and several other people were at O.H.'s house. At some point during the night, Rico and K.B. got into a verbal altercation, and O.H. asked Rico to leave. Later that night, Rico and Tyrone Wilson returned to O.H.'s apartment after O.H. and K.B. had gone to bed, and shot K.B. three times, killing him.
¶3 Rico was charged with first-degree murder, first-degree burglary, and conspiracy to commit first-degree murder. His first trial ended in a mistrial. Following the second trial, he was convicted of all three charges. He was sentenced to concurrent prison terms, the longest of which was life without the possibility of release for twenty-five years. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(1).
Witness's Unavailability
¶4 Rico first argues the trial court erred in ruling that a particular witness was "unavailable" for his retrial, thus allowing the state to read into the record that witness's testimony from the first trial. "We review a trial court's finding of a witness's unavailability for an abuse of discretion." State v. Lehr, 227 Ariz. 140, ¶ 30, 254 P.3d 379, 387-88 (2011).
¶5 Pursuant to Rule 19.3(c)(1), Ariz. R. Crim. P., and Rule 804(b)(1), Ariz. R. Evid., a witness's prior testimony can be admitted in the subsequent judicial proceeding if the declarant is unavailable as a witness and was subject to cross-examination in the prior proceeding. If the state wishes to introduce a witness's prior testimony, it "must have made a good-faith effort to obtain the witness'[s] presence at trial." State v. Edwards, 136 Ariz. 177, 181, 665 P.2d 59, 63 (1983); see also Ariz. R. Evid. 804(a)(5). "The length to which the state must go to produce a witness is a question of reasonableness." State v. Montano, 204 Ariz. 413, ¶ 26, 65 P.3d 61, 68 (2003). "We have framed the inquiry as 'whether the leads which were not followed would have been the subject of investigation if the State had been trying to find an important witness and had no transcript of prior testimony.'" Id. ¶ 26, 65 P.3d at 68-69, quoting Edwards, 136 Ariz. at 182, 665 P.2d at 64.
¶6 "[O]bvious and essential leads" as to the witness's whereabouts must be followed, but "'a good faith search does not mean that every lead, no matter how nebulous, must be tracked to the ends of the earth.'" Edwards, 136 Ariz. at 182, 665 P.2d at 64, quoting State v. Greer, 27 Ariz. App. 197, 201-02, 552 P.2d 1212, 1216-17 (1976), overruled on other grounds by State v. Hughes, 120 Ariz. 120, 128, 584 P.2d 584, 592 (App. 1978). "[T]he true issue is whether the State made a good-faith effort to locate the witness so that he or she could be put under subpoena." Edwards, 136 Ariz. at 182, 665 P.2d at 64.
¶7 Before Rico's first trial, J.V. failed to appear at a preliminary hearing despite having received a subpoena. The court issued a material witness warrant for J.V. After J.V. was arrested, he agreed to cooperate with the parties and was released after providing his personal contact information to the prosecutor. He then testified in the first trial, although he admitted he did not want to, and was subject to cross-examination by Rico. After that trial ended in a mistrial, a new trial was scheduled.
¶8 When the state attempted to contact J.V. for the second trial, it discovered the contact information he had provided was fictitious. A detective with the Pima County Attorney's Office located J.V.'s mother, but she did not have any contact information for J.V. The detective asked the mother to tell J.V. to contact her if she saw him and followed up with her two more times.
¶9 The detective also obtained an address for J.V.'s girlfriend, where the detective was able to speak with the girlfriend's mother. That woman stated she had not seen J.V. "in about a week" and he did not live at that address. The detective also asked this woman, to pass along the detective's contact information if she saw J.V. Although the detective believed the girlfriend was living at the house at the time, the detective did not speak with her. The detective never heard back from either woman and passed the information she had learned on to the Tucson Police Department's tactical unit.
¶10 The detective also checked for utilities, employment information, and state records associated with J.V., but was unable to find anything linked to him. Although J.V. had been issued a citation two weeks before the second trial, that citation listed the same fictitious address he had provided the prosecutor. After-hours tactical units that were tasked with locating J.V. also were unsuccessful. Based on the detective's testimony regarding the state's efforts to locate J.V. and J.V.'s apparent attempts to avoid being located so that he would not have to testify in this case, we cannot say the trial court abused its discretion in finding that J.V. was an unavailable witness. See Lehr, 227 Ariz. 140, ¶ 30, 254 P.3d at 387-88.
¶11 Rico argues, however, that without J.V.'s prior testimony, the state would have tried harder to speak directly with J.V.'s girlfriend and would have followed up with the girlfriend's mother. But, the fact that additional leads could have been followed does not indicate the trial court erred by finding the state's efforts sufficiently reasonable. See Edwards, 136 Ariz. at 182, 665 P.2d at 64.
¶12 The state followed the "obvious and essential leads"; namely, following up on the address J.V. had provided the state, locating J.V.'s mother, and locating his girlfriend's residence. See id. The girlfriend's mother told the detective J.V. was not living at the house. Thus, following up with the girlfriend's mother as to whether she had seen J.V., or informed him the state was looking for him, would not have helped "locate [J.V.] so that he . . . could be put under subpoena." Id.
¶13 Additionally, in light of J.V.'s efforts to avoid being found, Rico does not explain how following these leads would have proved useful. Rico points to nothing that suggests speaking directly to J.V.'s girlfriend would have helped the state locate J.V. so he could be served a subpoena. Id. Accordingly, we cannot say the trial court abused its discretion in finding the state acted reasonably and in good faith to procure J.V.'s attendance at trial. See Lehr, 227 Ariz. 140, ¶ 30, 254 P.3d at 387-88.
Sufficiency of the Evidence
¶14 Rico next argues the trial court erred in denying his motion for a judgment of acquittal made pursuant to Rule 20, Ariz. R. Crim. P., because insufficient evidence supported the jury's verdict for burglary, and therefore also did not support his conviction for felony murder. He claims the state did not prove he had remained unlawfully in the apartment.
¶15 We review de novo whether sufficient evidence supported a conviction. State v. Mwandishi, 229 Ariz. 570, ¶ 6, 278 P.3d 912, 913 (App. 2012). "'[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" State v. Mathers, 165 Ariz. 64, 66, 796 P.2d 866, 868 (1990), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis omitted).
¶16 As relevant here, a person commits burglary in the first degree by "entering or remaining unlawfully in or on a residential structure with the intent to commit . . . any felony therein" while "knowingly" possessing a deadly weapon. A.R.S. §§ 13-1508(A); 13-1507(A). To "[e]nter or remain unlawfully" is defined as "an act of a person who enters or remains on premises when the person's intent for so entering or remaining is not licensed, authorized or otherwise privileged." A.R.S. § 13-1501(2).
¶17 As this court has noted, "although a person enters another's premises lawfully and with consent, his presence can become unauthorized, unlicensed, or unprivileged if he remains there with the intent to commit a felony." State v. Altamirano, 166 Ariz. 432, 435, 803 P.2d 425, 428 (App. 1990) (citations omitted). "When a person's intent in remaining on premises is for the purpose of committing 'a theft or some felony therein,' such individual is no more welcome than one who initially entered with such intent." State v. Embree, 130 Ariz. 64, 66, 633 P.2d 1057, 1059 (App. 1981), quoting § 13-1507(A). A person commits felony murder if, "[a]cting either alone or with one or more other persons the person commits . . . burglary . . . and, in the course of and in furtherance of the offense . . . the person or another person causes the death of any person." A.R.S. § 13-1105(A)(2).
¶18 Rico argues he was a "welcome guest" and could not have entered unlawfully because O.H. testified she had allowed him to stay at her apartment the previous month and she would have allowed him to come back that night had he calmed down. However, O.H. also testified that she had not given Rico a key to her apartment, that she had asked Rico to leave after he fought verbally with K.B., and that she had locked the door after he left and before she went to bed. O.H. was not awakened until K.B. was shot lying in bed next to her. After the police arrived, O.H. discovered a set of her house keys was missing. Rico also told a fellow inmate that he and Wilson had "snuck in" to O.H.'s apartment that night. Viewing the evidence in the light most favorable to the prosecution, Mathers, 165 Ariz. at 66, 796 P.2d at 868, the jury could reasonably conclude that Rico had taken O.H.'s house keys and used them to enter her apartment without her permission.
¶19 Moreover, even if Rico initially did not enter O.H.'s apartment unlawfully, his presence in the apartment became unlawful when he remained there with the intent to commit first-degree murder. See Altamirano, 166 Ariz. at 435, 803 P.2d at 428. The evidence at trial showed that after Rico got into a fight with K.B., he instructed E.H. to take her children from O.H.'s apartment because he was "going to spray [O.H.'s] house or light it up." After leaving the apartment, Rico and J.V. discussed how to get a gun and then met up with Wilson. E.H. drove Rico and Wilson back to O.H.'s apartment, where the two men got out of the car and headed towards the apartment. E.H. then heard gunshots, and the two men came outside. Once they were back in the car, Rico said, "We got that n***a," and one of them said, "You're a killa. You're a killa." K.B. died shortly after police arrived.
¶20 Based on the evidence presented, a reasonable jury could conclude that regardless of whether Rico had entered the home with O.H.'s permission, he had entered and remained in O.H.'s apartment with the intent to commit first-degree murder, a felony, and did commit murder. Accordingly, the evidence supported the jury's guilty verdict on first-degree burglary, and consequently, also on first-degree felony murder. Because sufficient evidence supported the jury's guilty verdicts, the court did not err in denying Rico's Rule 20 motion. See Mwandishi, 229 Ariz. 570, ¶ 11, 278 P.3d at 914.
Rico's contention that the trial court's error "in denying the Rule 20 motion as to the burglary charge . . . would impact the felony murder charge" is without merit. On the jury verdict form, the jury indicated it found Rico guilty of first-degree murder on both the felony murder and premeditation theories. Thus, any change to his burglary charge would not have affected the first-degree murder conviction.
Prosecutorial Misconduct
¶21 Rico finally argues that the trial court erred in denying his motion for mistrial based on some of the prosecutor's remarks during rebuttal closing argument. We review the denial of a motion for mistrial for an abuse of the court's broad discretion. State v. Jones, 197 Ariz. 290, ¶ 32, 4 P.3d 345, 359 (2000).
¶22 To determine if a prosecutor's comments constituted misconduct that warrants a mistrial, a trial court should consider two factors: (1) whether the prosecutor's statements called to the jury's attention matters it should not have considered in reaching its decision and (2) the probability that the jurors were in fact influenced by the remarks. State v. Atwood, 171 Ariz. 576, 611, 832 P.2d 593, 628 (1992), disapproved on other grounds by State v. Nordstrom, 200 Ariz. 229, ¶ 25, 25 P.3d 717, 729 (2001). The defendant must show that the offending statements, in the context of the entire proceeding, "so infected the trial with unfairness as to make the resulting conviction a denial of due process." State v. Hughes, 193 Ariz. 72, ¶ 26, 969 P.2d 1184, 1191 (1998), quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974).
¶23 "Prosecutorial vouching takes two forms: '(1) where the prosecutor places the prestige of the government behind its [evidence] [and] (2) where the prosecutor suggests that information not presented to the jury supports the [evidence].'" State v. Newell, 212 Ariz. 389, ¶ 62, 132 P.3d 833, 846 (2006), quoting State v. Vincent, 159 Ariz. 418, 423, 423 P.2d 150, 155 (1989) (alterations in Newell). Improper vouching may be cured "by instructing the jury not to consider attorneys' arguments as evidence." State v. Payne, 233 Ariz. 484, ¶ 109, 314 P.3d 1239, 1267 (2013). Rico argues both categories applied to the prosecutor's remarks here.
¶24 During Rico's closing argument, in relation to a crime-scene photograph showing a set of keys sticking out of the victim's pocket, he argued:
There has been a lot of talk about the keys. There were two sets of keys to the house, or to the apartment. A lot of talk about the keys. What happened to the second key? How did whoever get in the house, how did they get in the house, because there was no signs of forced entry?The prosecutor addressed this argument in his rebuttal, stating, "We have the keys from the deceased in an envelope in the evidence section at [the Tucson Police Department]. So don't fall for that. We don't just throw the keys away. We have the keys. Okay. It's not the missing keys." Defense counsel objected on the grounds that the prosecutor had referred to "[e]vidence that is not before this Court," but the court overruled the objection. At the close of argument, Rico moved for a mistrial based on the prosecutor's remarks about the keys. Although the court noted that the prosecutor's remarks were "improper to the form of vouching with the issue of the keys," it denied the motion reasoning "that the jury was instructed that what the lawyers say during opening and closing argument is not evidence."
. . . .
And you remember I asked the officer . . . what is that, because it looked like there was a wound to his stomach. And as I am looking at that—see what that is, ladies and gentlemen? A set of keys, with a VIP card, a Fry's VIP card.
Now wouldn't it make sense that [K.B.], who has something going on in his
life that makes him carry a gun, locks the door to the house and takes the keys when he goes either to bed or passes out—now, again, I am not saying, we don't know, because he is not here—but my question is do people who are drug dealers, do people who sell marijuana, use coupons and VIP cards, or do single mothers use VIP cards?
All right. Just think logically, how do you know . . . what makes sense? I submit to you the keys are right there. That's where the keys are to this house. We know that there is something else going on. We know there is something else going on. We don't know what it is.
¶25 Although the state concedes that the prosecutor's remark was a "misstatement," our review of the record reveals that the prosecutor's remarks had support in the record. One of the detectives who initially responded to the scene while the victim was still present testified that police had found a key to the front door belonging to an eleven-year-old girl who lived in the apartment, located in her bedroom. The detective further testified officers had "found other keys," at the crime scene, but they found "no other keys that fit the front door."
¶26 Accordingly, testimony demonstrated that of all the keys found at the crime scene, only the eleven-year-old girl's key fit the front door. It was therefore a reasonable inference that the keys found sticking out of K.B.'s pocket at the crime scene did not fit the front door. The prosecutor was not referring to evidence outside the record in his rebuttal summation, and the state neither suggested it had information the jury did not have access to nor placed its prestige behind such evidence. See Newell, 212 Ariz. 389, ¶ 62, 132 P.3d at 846. Therefore no vouching occurred, and the court did not abuse its discretion in denying the motion for mistrial. See Jones, 197 Ariz. 290, ¶ 32, 4 P.3d at 359.
¶27 Moreover, any difference between the detective's testimony and prosecutor's remarks was not significant. And the jury was instructed the attorney's arguments are not evidence. We presume the jury followed this instruction. State v. Reyes, 232 Ariz. 468, ¶ 7, 307 P.3d 35, 38 (App. 2013). Accordingly, any misconduct did not result in an unfair trial or denial of due process. See Payne, 233 Ariz. 484, ¶ 109, 314 P.3d at 1267.
Disposition
¶28 For the foregoing reasons, we affirm Rico's convictions and sentences.