Opinion
No. 2 CA-CR 2013-0291
03-27-2014
THE STATE OF ARIZONA, Appellee, v. DONALD HAROLD STEWART JR., Appellant.
Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Eliza C. Ybarra, Assistant Attorney General, Phoenix 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NOT FOR PUBLICATION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. CR20123593001
The Honorable Richard S. Fields, Judge
AFFIRMED
COUNSEL
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Eliza C. Ybarra, Assistant Attorney General, Phoenix
Counsel for Appellee
Lori J. Lefferts, Pima County Public Defender
By Michael J. Miller, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Kelly and Judge Espinosa concurred.
ECKERSTROM, Judge:
¶1 Following a jury trial, appellant Donald Stewart Jr. was convicted of two counts of third-degree burglary and sentenced to two concurrent prison terms of eleven years. On appeal, he contends the prosecutor asked improper questions related to surveillance videos and committed misconduct during closing argument. He further claims the trial court erred by selecting an alternate juror. We affirm for the reasons that follow.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to upholding the verdicts. See State v. Bocharski, 218 Ariz. 476, n.2, 189 P.3d 403, 408 n.2 (2008). This case concerns two burglaries that occurred at a restaurant in midtown Tucson. On September 9, 2012, a man climbed a wall into the patio area of the restaurant, broke through its door, and took $390 from inside the establishment. On September 11, a man again climbed the patio wall of the restaurant and attempted to break in, causing significant damage to the door before he fled. Security cameras recorded both episodes, and the owner of the restaurant reported both burglaries to law enforcement.
¶3 On September 15, the owner arrived before normal business hours, saw Stewart lingering in and around the restaurant's parking lot, and reported him to the police. Officer Mark Holderness quickly responded and participated in Stewart's arrest. Based on the surveillance footage, Detective Martin Walker learned that another police officer, Roland Gutierrez, had previously made contact with Stewart in the restaurant's parking lot while
investigating an unrelated crime, less than an hour before the second burglary had occurred.
¶4 In response to the state's questions at trial, all three law enforcement officers and the restaurant's owner testified, based on their observations of Stewart at the time of their contact with him, that he was the person depicted in the surveillance videos and in the "video still" photographs admitted into evidence. Stewart's tattoos on his arms appeared to match those of the burglar in the videos, and he, like the burglar, possessed an Arizona Diamondbacks baseball hat and light-colored gloves. Stewart also possessed burglary tools when arrested. This timely appeal followed his convictions and sentences.
Opinion Evidence
¶5 Stewart first argues "it was fundamental error when the prosecutor repeatedly asked the police officers and [restaurant owner] their opinion of whether . . . Stewart was the person in the surveillance videos, when the sole issue was identification." Because no objection was made to the questions below, Stewart has the burden of establishing that an error occurred, that the error was fundamental, and that it resulted in prejudice. See State v. Maldonado, 223 Ariz. 309, ¶ 25, 223 P.3d 653, 657 (2010).
¶6 Stewart maintains that because the witnesses were not testifying as experts, their lay opinions were not admissible under Rule 701(b), Ariz. R. Evid., unless they were "helpful to clearly understand[] the witness's testimony or to determin[e] a fact in issue." He claims the challenged testimony was not helpful in either respect. He specifically argues the opinions did not help to determine the issue of identity because none of the witnesses knew Stewart, "they had only seen him briefly during the investigation," and the jurors could make their own determinations based on the photographs from his arrest and their observations of him during trial. The state responds that the evidence was helpful to the jury, as it was based on the witnesses' personal interactions with Stewart during the week of the burglaries and his arrest, see Ariz. R. Evid. 701(a), and it provided further information about how he looked around the time of the offenses, closer in time to when the security
footage was collected. Cf. State v. King, 180 Ariz. 268, 280, 883 P.2d 1024, 1036 (1994) (finding no error in court admitting identification opinions of defendant's acquaintances who knew defendant when crimes occurred).
¶7 We agree with the state that the testimony was helpful and admissible under Rule 701. At minimum, all the witnesses' opinions were potentially helpful because the arrest photographs showed Stewart's head and face only from the front, whereas in many of the surveillance photographs the perpetrator was seen from behind or in profile. In addition, the restaurant owner's opinion helped to explain the sequence of the investigation and why Stewart was reported and arrested on September 15. Officer Gutierrez's opinion was also helpful to understand the relevance and probative value of his testimony. The trial court therefore did not err in admitting the evidence.
¶8 But even if the testimony was erroneously admitted, this did not result in any prejudice, given that the jury was free to make its own comparisons of the defendant's live appearance, the videos, and the photographs from his arrest. Cf. State v. Amaya-Ruiz, 166 Ariz. 152, 168, 800 P.2d 1260, 1276 (1990) (finding admission of lay witnesses' testimony harmless "[b]ecause the jury was permitted to reach its own conclusion as to the similarity or dissimilarity between the photograph and defendant's shoe"). The trial court instructed jurors that it was their duty to determine the facts, that they were the sole judges of what happened, and that the testimony of law enforcement officers was not to be given any special weight. We therefore find no basis to disturb the verdicts.
Prosecutorial Misconduct
¶9 Stewart next contends the prosecutor committed misconduct by making the following remarks during the rebuttal portion of closing argument:
And what you're not going to be able to do is, if you sit in judgment and then you render a verdict, and you come back and you say, man, what was I thinking, how
could I have—how could I have let [t]his guy go. You can't come back and say, Judge, I made [a] mistake. You can't do that.
According to Stewart, this comment was improper because it appealed to jurors' fears and suggested they should convict him "because they would not want to regret their decision when they went home."
¶10 Because no objection was made below, we review only for fundamental error. See State v. Morris, 215 Ariz. 324, ¶ 47, 160 P.3d 203, 214 (2007). We will reverse a conviction based on prosecutorial misconduct only if misconduct is in fact present and there is a reasonable likelihood that it affected the jury's verdict, denying the defendant a fair trial. See State v. Martinez, 218 Ariz. 421, ¶ 15, 189 P.3d 348, 353 (2008).
¶11 When determining whether a prosecutor's comments were improper, a court must view them in their entire context and assess how they were perceived by the jury. See State v. Rutledge, 205 Ariz. 7, ¶ 33, 66 P.3d 50, 56 (2003). Immediately after making the remarks here, the prosecutor stated, "Ladies and gentlemen, I want you to deliberate. I want you to be careful, thoughtful in your deliberations." She had begun her rebuttal by saying, "What this case is about, is the burglary. What this case is about is what the evidence shows." In context, therefore, the prosecutor's challenged remarks emphasized the finality of the jury's decision and encouraged jurors to carefully weigh the evidence before rendering a verdict. She did not appeal to the jury's fear of releasing a potentially dangerous person on the community, which is not permitted. See State v. Moody, 208 Ariz. 424, ¶¶ 149-50, 94 P.3d 1119, 1154-55 (2004). We thus find no misconduct. And, assuming arguendo that the comment was improper, it would not warrant relief under fundamental error review because it "was not an error 'of such dimensions that it cannot be said it is possible for [the] defendant to have had a fair trial.'" Moody, 208 Ariz. 424, ¶ 154, 94 P.3d at 1155, quoting State v. Smith, 114 Ariz. 415, 420, 561 P.2d 739, 744 (1977).
Alternate Juror
¶12 Last, Stewart maintains the trial court erred by designating a juror as an alternate. On the second day of trial, outside the other jurors' presence, Juror H. informed the court and parties that she thought Stewart looked very familiar and might have dated her mother. When Stewart denied any relationship, the juror stated she felt "like a jerk" but still thought she might know him. She also reported that she felt comfortable continuing to serve.
¶13 During closing argument, Stewart alluded to this episode when making his mistaken identification defense, saying, "Sometimes we think someone is a person we know. We sit in a courtroom for two days, and we think we know him. . . . You see a person and you think, that's the person. And then you think to yourself, or is it. I'm not so sure." The trial court subsequently designated this juror as an alternate over Stewart's objection. She did not participate in deliberation or in rendering the verdicts.
¶14 "Although a defendant is entitled to a fair and impartial jury, he is not entitled to be tried by any particular jury." State v. Blackhoop, 162 Ariz. 121, 122, 781 P.2d 599, 600 (1989). Rule 18.5(h), Ariz. R. Crim. P., provides for alternate jurors to be selected by lot by the clerk. We have found no reversible error, however, when a court designates as the alternate juror a person who might be disqualified from service, and the defendant ultimately receives a fair and impartial jury. State v. Smith, 146 Ariz. 325, 327, 705 P.2d 1376, 1378 (App. 1985). Such is the case here. We find any error with respect to the alternate juror to be harmless.
Disposition
¶15 For the foregoing reasons, Stewart's convictions and sentences are affirmed.