Opinion
2 CA-CR 2022-0023
06-08-2023
The State of Arizona, Appellee, v. Joseph Angel Torres, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Jacob R. Lines, Assistant Attorney General, Tucson Counsel for Appellee Law Offices of Thomas Jacobs By Thomas Jacobs, Tucson Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. CR20170508001 The Honorable Christopher Browning, Judge
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Jacob R. Lines, Assistant Attorney General, Tucson Counsel for Appellee
Law Offices of Thomas Jacobs By Thomas Jacobs, Tucson Counsel for Appellant
Presiding Judge Eppich authored the decision of the Court, in which Chief Judge Vasquez and Judge Gard concurred.
MEMORANDUM DECISION
Eppich, Presiding Judge
¶1 Joseph Torres appeals from his conviction and sentence for second-degree murder. He claims prosecutorial error denied him a fair trial and insufficient evidence supports his conviction. He also asserts the trial court abused its discretion by denying his motion to suppress. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the verdict, resolving all reasonable inferences against Torres. See State v. Fierro, 254 Ariz. 35, ¶ 2 (2022). In 2016, Torres and four other individuals, including Alice P., were involved in a street fight they initiated with the victim, I.A., and I.A.'s half-brother, M.G. M.G. testified he wrestled a bat away from an assailant and held off three of the men while Torres and I.A. fought. At one point, M.G. approached Torres and hit him with the bat, telling him to let I.A. go. Moments later, Torres shot and killed I.A. Torres, with the gun in his hand, fled in a car with three others while Alice P. fled on foot. Officers arrested Torres some months later, after Alice P. identified him as the shooter.
¶3 Following a five-day jury trial, Torres was convicted of second-degree murder and sentenced to thirteen years' imprisonment. Torres appealed, and except as noted below, we have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Jurisdiction
¶4 Torres challenges the trial court's denial of his motion for new trial pursuant to Rule 24.1, Ariz. R. Crim. P., on two grounds. He claims prosecutorial misconduct denied him a fair trial and that there is not substantial evidence supporting his conviction. However, Torres's notice of appeal does not encompass the court's denial of his motion for new trial, and we therefore lack jurisdiction to consider it. See State v. Wilson, 253 Ariz. 191, n.3 (App. 2022); see also State v. Nunn, 250 Ariz. 366, ¶ 4 (App. 2020) ("We have an independent duty to determine whether we have jurisdiction on appeal."). Notwithstanding this, we have jurisdiction to consider both claims of error as they are independently reviewable in conjunction with Torres's appeal from the final judgment of conviction. See § 13-4033(A)(1).
Claims of prosecutorial misconduct are reviewable on appeal from a final judgment of conviction. See State v. Valdez, 160 Ariz. 9, 10, 13 (1989), overruled on other grounds by Krone v. Hotham, 181 Ariz. 364, 366-67 (1995). Additionally, during trial, Torres moved for a judgment of acquittal pursuant to Rule 20, Ariz. R. Crim. P., and thus we have jurisdiction to consider his argument regarding sufficiency of the evidence. See State v. Fristoe, 135 Ariz. 25, 27, 32 (App. 1982).
Motion to Suppress
¶5 Torres challenges the trial court's denial of his motion to suppress ammunition seized from his home pursuant to a search warrant. We review a court's ruling on a motion to suppress for an "abuse of discretion if it involves a discretionary issue, but review constitutional issues and purely legal issues de novo." State v. Booker, 212 Ariz. 502, ¶ 10 (App. 2006). We only consider the evidence presented at the suppression hearing, viewing it in the light most favorable to upholding the ruling. State v. Olm, 223 Ariz. 429, ¶ 2 (App. 2010).
¶6 Shortly after the shooting occurred on October 23, 2016, officers identified and arrested Alice P. for her involvement. On November 30, Alice P. participated in a "free talk" with police, at which time she implicated Torres as the shooter. On February 1, 2017, police arrested Torres and obtained a search warrant for his home. The warrant authorized the search and seizure of "[f]irearms," "[a]mmunition," "[i]ndicia of ownership," "DNA from Joseph Angel Torres Jr." and "photographs of Joseph Angel Torres Jr."
¶7 During the search warrant application, the detective did not disclose that police had found a nine-millimeter spent cartridge casing at the crime scene. Upon searching Torres's home, police found and seized nine-millimeter ammunition which was the same brand as the casing recovered from the scene.
¶8 Before trial, Torres moved to suppress the evidence obtained pursuant to the warrant, generally arguing the warrant was based on stale information and lacked particularity regarding items to be seized. After an evidentiary hearing, the trial court found that the warrant was not stale, but it was impermissibly general in its description of firearms and ammunition as items subject to search and seizure. It therefore granted Torres's motion "as it pertain[ed] to any firearms or ammunition not similar to the CCI 9mm cartridge found," but denied the motion "as it relate[d] to all other evidence found and seized by the police."
Staleness
¶9 Torres first argues that probable cause did not exist when the warrant was issued because the detective "never explained why there was probable cause to believe evidence from a homicide committed several months earlier would be located at [Torres's home]." Probable cause justifying a search warrant must exist at the time it is issued, but there is no arbitrary time limit on how old information in the affidavit may be. State v. Hale, 131 Ariz. 444, 446 (1982). When determining whether information contained in a search warrant affidavit is stale, our supreme court has considered whether the illegal activity "is of a continuous nature or in a course of conduct," State v. Smith, 122 Ariz. 58, 60 (1979), as well as whether the type of evidence sought "would likely be consumed or thrown away" and whether "[t]he [a]uthorities acted with dispatch as soon as the facts were made known to them," State v. Kasold, 110 Ariz. 563, 565-66 (1974) (probable cause supported warrant for "pictures, books, and written stories of [minors'] sexual activities" even after five-month delay).
¶10 Here, we agree with the trial court that probable cause existed despite the approximately three-month lapse between the homicide and the issuance of the search warrant. Although this offense is not continuous in nature or part of a course of conduct, that is only one consideration. See Smith, 122 Ariz. at 60. Like the evidence in Kasold, the evidence sought by police here-firearms, ammunition, DNA, indicia of ownership, and photographs of Torres-is not particularly consumable or disposable, and it is not unreasonable to believe Torres would still have them in his possession three months later. Additionally, the police only learned of Torres's involvement in the shooting from Alice P.'s free talk, and they obtained the warrant approximately two months after that.
Particularity
¶11 Torres next claims the trial court abused its discretion when it failed to suppress the nine-millimeter ammunition found at his home despite finding the warrant lacked particularity "as it relate[d] to the caliber, or lack thereof, of the firearm and ammunition to be seized." The state counters that the court applied the proper remedy by only suppressing evidence "not similar to the cartridge found at the scene."
¶12 When a warrant contains sections which are impermissibly broad, a trial court's ruling on a motion to suppress should determine whether the "valid portions are 'meaningfully severable' from the entire warrant." State v. Roark, 198 Ariz. 550, ¶ 10 (App. 2000) (quoting United States v. Christine, 687 F.2d 749, 754 (3d Cir. 1982)). If the valid portions of the warrant are severable, the court "may redact the invalid phrases and suppress only the evidence seized pursuant to these invalid portions." Id.
¶13 Here, the trial court implied that it struck and severed the firearm and ammunition clauses from the warrant because it found they were impermissibly broad. We disagree with that finding. But because we conclude the court erred by finding that the warrant lacked particularity in the first instance, we agree with its refusal to suppress the nine-millimeter ammunition. See State v. Boteo-Flores, 230 Ariz. 551, ¶ 7 (App. 2012) (we will affirm court's ruling if legally correct for any reason). We review de novo whether the warrant was sufficiently particular to comply with the Fourth Amendment. Roark, 198 Ariz. 550, ¶ 6.
The court did not explicitly state it was striking these portions of the warrant, but it cited to Roark for that principle in its conclusion.
¶14 The Fourth Amendment to the United States Constitution provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." This requirement "prevents general, exploratory searches and indiscriminate rummaging through a person's belongings," and the specificity required "varies depending on the circumstances of the case and the type of items involved." United States v. Spilotro, 800 F.2d 959, 963 (9th Cir. 1986). To determine whether a warrant is sufficiently particular, we have concentrated on one or more of the following factors:
(1) whether probable cause exists to seize all items of a particular type described in the warrant, (2) whether the warrant sets out objective standards by which executing officers can differentiate items subject to seizure from those which are not, and (3) whether the
government was able to describe the items more particularly in light of the information available to it at the time the warrant was issued.State v. Dean, 241 Ariz. 387, ¶ 7 (App. 2017) (quoting Spilotro, 800 F.2d at 963).
¶15 First, we disagree with the trial court's finding that police did not have probable cause to seize all firearms and ammunition generally. "Probable cause exists when the facts known to a police officer 'would warrant a person of reasonable caution in the belief that contraband or evidence of a crime is present.'" State v. Sisco, 239 Ariz. 532, ¶ 8 (2016) (quoting Florida v. Harris, 568 U.S. 237, 243 (2013)). It is not required that the facts show it is more likely than not contraband or evidence will be found, but rather a "fair probability" on which "reasonable and prudent [people,] not legal technicians, act." Id. (quoting Harris, 568 U.S. at 244). It is a "practical and common-sense" standard that depends on the totality of the circumstances. Id.
¶16 Police knew I.A. had been shot, and information provided by Alice P. led them to suspect Torres as the shooter. Although police had information supporting the theory that the murder weapon was a nine-millimeter handgun, this did not necessarily eliminate probable cause as to other firearms. Police had no description of the gun used, other than Alice P.'s general statement that she had seen Torres holding one in his right hand. The only other information available to the police regarding the murder weapon-the nine-millimeter shell casing from the scene-was circumstantial, and the possibility existed that it was wholly unrelated to the murder. Therefore, considering the totality of the circumstances, a fair probability existed that the search may turn up guns or ammunition of a different caliber related to the murder. See Sisco, 239 Ariz. 532, ¶ 8.
No evidence of a bullet having been recovered at the crime scene or the autopsy was presented at the suppression hearing.
¶17 Because there was probable cause to seize guns and ammunition generally, the warrant was not otherwise defective for lack of particularity considering the second or third Spilotro factors. See United States v. McClintock, 748 F.2d 1278, 1283 (9th Cir. 1984) (no particularity defect where probable cause existed to seize all items described and descriptions adequately identified items subject to seizure). The description in the warrant-"[f]irearms" and "[a]mmunition"-sufficiently identified the items for which probable cause existed, and the executing officer was without discretion as to what was subject to seizure. See United States v. Pollock, 726 F.2d 1456, 1466 (9th Cir. 1984) (warrant not general if articulated standards "reasonably guide the officers in avoiding the seizure of protected property"). Furthermore, a more specific description was not possible because probable cause encompassed all that was described. See United States v. Offs. Known as 50 State Distrib. Co., 708 F.2d 1371, 1374 (9th Cir. 1983) (more specific description of business records not possible because there was probable cause to believe fraud permeated entire business).
¶18 We also note that the circumstances here are distinguishable from other cases where warrants have been held to be impermissibly general. See Spilotro, 800 F.2d at 964 (authorizing seizure of "address books, notebooks, notes, documents, records, assets, photographs," and paraphernalia evidencing violations of listed statutes); United States v. Cardwell, 680 F.2d 75, 76, 78 (9th Cir. 1982) (warrant listing various classes of documents "which are the fruits and instrumentalities, of violations of [a statute]"); State v. Robinson, 139 Ariz. 240, 241 (App. 1984) (affidavit describing burglaries with statement that "the items taken have usually been purses, wallets, and jewelry"). In those cases, the general nature and type of items sought was such that officers could seize large swaths of property at their discretion. See United States v. Abrams, 615 F.2d 541, 543 (1st Cir. 1980) (warrant giving officers "unfettered" discretion "is exactly the kind of investigatory dragnet that the fourth amendment was designed to prevent").
¶19 Here, under the challenged clauses, officers had no discretion to seize anything other than firearms and ammunition. This is unlike a warrant that lists broad categories of documents and common items expected to be in a person's home, and it does not pose the same risk of becoming an "investigatory dragnet." Id.; see also Spilotro, 800 F.2d at 963 (circumstances and type of items involved relevant to analysis). Therefore, despite the trial court applying the incorrect remedy, the admission of the ammunition seized from Torres's home was not error because the warrant was not invalid for lack of particularity.
Prosecutorial Error in Closing Argument
¶20 Torres identifies numerous statements in the state's closing argument that he contends are prosecutorial error demonstrating "repeated and w[a]nton" misconduct that cumulatively constitute reversible error. As explained below, we agree with Torres that the state committed multiple errors during closing argument, but disagree that these errors warrant reversal.
¶21 "'[P]rosecutorial misconduct' broadly encompasses any conduct that infringes a defendant's constitutional rights," from inadvertent error to intentional misconduct. In re Martinez, 248 Ariz. 458, ¶ 45 (2020). It is the defendant's burden to establish prosecutorial error. See State v. Vargas, 249 Ariz. 186, ¶¶ 14-15 (2020). In a cumulative error claim where, as here, the defendant did not object to all of the alleged instances of error, the court first assesses each individual claim of prosecutorial error. See State v. Hulsey, 243 Ariz. 367, ¶ 88 (2018).
Whether the conduct was inadvertent error or intentional misconduct "makes no difference to our ultimate decision in th[e] case." State v. Murray, 250 Ariz. 543, ¶ 12 (2021). Because we do not see evidence that any error identified herein constitutes intentional wrongdoing, we use the term "prosecutorial error" rather than "prosecutorial misconduct." See In re Martinez, 248 Ariz. 458, ¶ 47 (2020) (instructing courts to differentiate between "error" and "misconduct"). "[A]ny finding of error or misconduct may entitle a defendant to relief," but we distinguish the terms so that we do not "conflate that inquiry with the collateral issue of a prosecutor's ethical culpability." Id.
¶22 For those instances where the defendant establishes that objected-to error occurred, the error is reviewed to determine if there is a "reasonable likelihood" that it "could have affected the jury's verdict, thereby denying defendant a fair trial." State v. Murray, 250 Ariz. 543, ¶ 13 (2021) (quoting State v. Morris, 215 Ariz. 324, ¶ 46 (2007)) (if defendant preserves the issue by objection, we review under the standard in State v. Anderson, 210 Ariz. 327, ¶ 45 (2005)).
¶23 For those alleged instances of error to which a defendant did not object, he is only entitled to fundamental error review. Id. ¶ 14. In fundamental error review, the court first determines if trial error exists, and if so, whether the error is fundamental because "it goes to the foundation of a case, takes away an essential right, or is so egregious that a defendant could not have received a fair trial." Id. The first two prongs require a showing of prejudice, but under the third prong, prejudice is presumed. Id. A defendant shows prejudice by demonstrating that absent the fundamental error, "a reasonable jury . . . could have reached a different [verdict]." Id. (alterations in Escalante) (quoting State v. Escalante, 245 Ariz. 135, ¶ 29 (2018)).
¶24 But "it is not necessary to separately argue fundamental error for each allegation of misconduct in a claim of cumulative error." Vargas, 249 Ariz. 186, ¶ 17. If a defendant establishes more than one error, the question is whether the combined effect "so infected the trial with unfairness as to make the resulting conviction a denial of due process." State v. Roque, 213 Ariz. 193, ¶ 152 (2006) (quoting State v. Hughes, 193 Ariz. 72, ¶ 26 (1998)), abrogated on other grounds by State v. Escalante-Orozco, 241 Ariz. 254, ¶¶ 13-14 (2017).
Objected-to Instances of Alleged Prosecutorial Error a. Definition of Second-Degree Murder
¶25 Torres first claims the state committed reversible error by displaying the wrong definition of second-degree murder to the jury. During closing argument, the prosecutor displayed a slide with a definition of second-degree murder. Torres objected, noting the displayed definition was incorrect because it failed to include the requirement that if the defendant acted recklessly, he did so under circumstances manifesting an extreme indifference to human life, distinguishing second-degree murder from manslaughter. Compare A.R.S. § 13-1104(A)(1)-(3), with A.R.S. § 13-1103(A)(1). The trial court agreed and told the prosecutor to remove the slide. It then told the jury,
[T]he defendant's objection to the State's display of the second-degree murder definition up on the screen a moment ago during [the prosecutor's] closing argument is sustained. So what he displayed on the screen is not the law in Arizona about second-degree murder.
The law in Arizona about second-degree murder appears in the Court's instruction number 17. You should disregard whatever was displayed . . . and focus solely on instruction 17 when trying to determine whether or not the State's proven, beyond a reasonable doubt, that the defendant committed the crime of second-degree murder.The prosecutor apologized to the jury and read the definition of second-degree murder from the court's instruction.
¶26 On appeal, the state acknowledges its mistake but argues it was properly remedied by both its and the court's actions. We agree. Although the prosecutor's incorrect instruction was clearly error, the objection to it was sustained and it was promptly mitigated through corrective action and reference to the proper instruction. See Hulsey, 243 Ariz. 367, ¶ 119 (reference to proper instruction may help cure misstatement of law). We therefore conclude it was not reasonably likely to have affected the verdict. See Murray, 250 Ariz. 543, ¶ 13. We nevertheless consider this error in our cumulative error analysis.
b. Verdict as a "[R]eferendum"
¶27 Torres next points to the prosecutor's description of the verdict as a "referendum." The prosecutor explained to the jury that there were three different ways to commit second-degree murder, and told the jury that it might be firmly convinced that these were "circumstance[s] manifesting an extreme indifference to human life," "circumstances where somebody, and three other men pile into a car for a middle of the night ambush and a street fight against unarmed men." The prosecutor continued, "I mean if that's not extreme indifference, folks-I mean part of your verdict is going to be, in a sense, a referendum on what we consider to be acceptable conduct in our-" Torres objected but was overruled. The prosecutor continued,
So to be clear . . . in order for this defendant to be convicted, you need to be firmly convinced of his guilt. So to the extent that a referendum could be thought of as a yes or no vote, it's more than that in a criminal context, and it should be.
But part of your verdict, and part of your evaluation process back in the jury room is to decide whether or not it's okay . . . for somebody to pile out of a car with other people, and engage in this sort of street fight, bring a gun to it, and shoot their way out of it, and leave the person to die on the ground. That's part of the essential decision that you're going to have to make.
¶28 Torres contends the prosecutor improperly encouraged the jury to "send a message," citing Sinisterra v. United States, 600 F.3d 900 (8th Cir. 2010). The state counters that Sinisterra does not apply here because the prosecutor's remarks were focused on the facts of the case and "whether it was appropriate for [Torres] to act as he did." The court in Sinisterra observed that the Eighth Amendment to the United States Constitution requires a jury make an "individualized determination," and the state may not tell the jury to "act as the conscience of the community and send a message from one case to another." 600 F.3d at 910-11. But in Sinisterra, the prosecutorial error occurred at capital sentencing, id. at 903, 910, where an individualized sentencing determination was required, see State v. Reeves, 233 Ariz. 182, ¶ 16 (2013) (citing Eddings v. Oklahoma, 455 U.S. 104, 112 (1982)). No similar requirement exists in this non-capital case involving a conviction-related misconduct claim. See State v. Berger, 212 Ariz. 473, ¶ 48 (2006) (individualized sentencing not required in non-capital context). In any event, we agree with the state that Sinisterra is not persuasive because the prosecutor focused his argument on Torres and his crime and did not ask the jury to send a message to others.
¶29 However, it is improper to ask the jury to make its decision on grounds other than innocence or guilt. See, e.g., State v. Herrera, 174 Ariz. 387, 396-97 (1993); United States v. Canty, 37 F.4th 775, 796 (1st Cir. 2022) ("emotional appeals to the jury's role as the conscience of the community . . . encouraged the jury to abandon its role as rational factfinder"); Le v. Mullin, 311 F.3d 1002, 1022 (10th Cir. 2002) ("The prosecutor has a duty not to . . . misstate the jury's role.").
¶30 In Herrera, the prosecutor told the jury, "if the state has met its burden and the law does apply, then you do your duty so a civilized society can keep going as we honor it in our country today; that's justice. I ask you to do justice." 174 Ariz. at 396. Our supreme court concluded that the prosecutor's statements were not improper because they did not urge the jury to convict for reasons irrelevant to guilt or innocence. Id. at 396-97. Read in context, the prosecutor had effectively told the jury that, if it found the defendant guilty beyond a reasonable doubt, it had a duty to return a guilty verdict. Id.
¶31 The remarks here were unlike those in Herrera. First, the prosecutor invited the jurors to conclude that Torres was guilty if they disapproved of the circumstances of the offense. After Torres's objection was overruled, the prosecutor properly told the jury that it had to be firmly convinced of Torres's guilt, but then he linked that standard of proof to deciding "whether or not it's okay" to engage in a street fight that ended in a shooting. His statement effectively told the jury that it was tasked with determining whether I.A.'s shooting was wrong, rather than determining if Torres had committed the crime with which he was charged. Because the jury's duty is to determine guilt or innocence, not whether an offense is morally repugnant, we conclude the prosecutor's remarks were improper and the trial court should have sustained Torres's objection. Cf. State v. Acuna Valenzuela, 245 Ariz. 197, ¶ 109 (2018) (statements may improperly appeal to jurors' emotions, prejudices or passions if prosecutor urges conviction for reason irrelevant to guilt or innocence).
¶32 However, we conclude the error, taken individually, was not likely to have affected the verdict. Despite overruling Torres's objection, the trial court paused to instruct the jury that "if anything that either of [the] lawyers say[] during their closing argument is inconsistent with the instructions I gave you, you're to disregard what the lawyers said and you're to rely on the instructions." Torres's counsel also rebutted the prosecutor's remarks in her own closing argument, telling the jury multiple times that they were not to "let the [g]overnment misstate the law." Although the error does not warrant reversal on its own, it is relevant to our cumulative error analysis.
c. Prosecutorial Vouching on Witness Credibility
¶33 Torres also argues the prosecutor improperly conveyed his personal belief about witness credibility. The prosecutor reminded the jury that Torres's counsel had argued the state's witnesses to the shooting had no "scruples" because they were convicted felons, and the prosecutor remarked, "I don't agree with that. I assume you don't agree with that." Torres objected but was overruled.
Torres's objection at trial also challenged other comments and on appeal he asserts that the prosecutor was "injecting his own opinions into the argument." Although he references the other comments in his brief's statement of facts, he fails to meaningfully develop any argument related thereto, and we decline to consider them. See Ariz. R. Crim. P. 31.10(a)(7) (brief must include argument containing "contentions with supporting reasons for each contention"); see also State v. Bolton, 182 Ariz. 290, 298 (1995) (failure to argue claim constitutes waiver of claim).
¶34 Counsel is granted "wide latitude" to "'comment on the evidence and argue all reasonable inferences' from it." State v. Moody, 208 Ariz. 424, ¶ 180 (2004) (quoting State v. McDaniel, 136 Ariz. 188, 197 (1983)). But improper prosecutorial vouching occurs when a prosecutor "places the prestige of the government behind its witness." Acuna Valenzuela, 245 Ariz. 197, ¶ 75 (quoting State v. Vincent, 159 Ariz. 418, 423 (1989)). Thus, it is "highly inappropriate" for a prosecutor to convey his "'personal belief about the credibility of a witness.'" State v. Martinez, 230 Ariz. 208, ¶ 30 (2012) (quoting State v. Lamar, 205 Ariz. 431, ¶ 54 (2003)).
¶35 The state relies on Lamar to argue that the comments were not improper. See 205 Ariz. 431. There, our supreme court concluded the prosecutor's comment that witness testimony "sound[ed] like a truthful statement" was indeed "inappropriate" but not fundamental error because it did not convey that the witness was "generally a credible person whose entire testimony should be accepted." Id. ¶ 54.
¶36 Here, unlike in Lamar, the review is not for fundamental error. See id. But even assuming, without deciding, that the comments were erroneous, we again conclude they do not warrant reversal standing alone. The prosecutor did not directly state whether he thought any specific witness was being truthful. His comments are best characterized as disagreement with the general proposition that someone with a felony conviction "does not have scruples," and the jury was properly instructed on the factors they should consider in evaluating what testimony to accept or reject. We will nevertheless consider these statements in our cumulative error analysis.
Unobjected-to Instances of Alleged Prosecutorial Error a. Prosecutorial Vouching as to Evidence
¶37 Torres also argues that the prosecutor improperly expressed personal opinions about what the evidence showed. He points to the following comment, which immediately followed the prosecutor's description of the three different means of committing second-degree murder:
[Y]ou do not need to be unanimous on which theory occurred here. You could go back there and five of you could say, you know what, I think he intentionally shot him. The doctor from the [Office of the Medical Examiner] testified about this closed contact injury, where the gun barrel was essentially either placed up
to the skin, or so close that it was the functional equivalent. And that, to me, is intentional conduct.Torres did not contemporaneously object, and therefore must show fundamental error. See Vargas, 249 Ariz. 186, ¶ 12.
¶38 As we have noted, counsel is granted "wide latitude" during closing arguments, Moody, 208 Ariz. 424, ¶ 180 (quoting McDaniel, 136 Ariz. at 197), but a prosecutor may not express his personal opinion of the evidence to the jury, Acuna Valenzuela, 245 Ariz. 197, ¶¶ 84-85 (prosecutor's use of "we know" suggests "their argument bears the imprimatur of the state," but no error where prosecutor did not use "I" or "me"). The prosecutor was, at least at first, speaking from a juror's perspective. See State v. Goudeau, 239 Ariz. 421, ¶ 196 (2016) (we look at context to determine error). He described what individual members of the jury might conclude based on the evidence presented. However, it is not clear if his final remark, "And that, to me, is intentional conduct," was a continuation of what a juror might conclude or an expression of the prosecutor's personal opinion.
¶39 Regardless, even if the prosecutor's comment constituted fundamental error, Torres was not prejudiced to the extent it would require reversal. See Murray, 250 Ariz. 543, ¶ 14. Nor was the prosecutor's conduct here so egregious that Torres was denied a fair trial. Id. At most, this comment merely toes the line of impermissible argument, and we cannot say that absent the remark, a reasonable jury could have reached a different verdict. Id.
b. Misstating the Evidence
¶40 Next, Torres asserts that the prosecutor misstated evidence, pointing to several comments made during closing argument. During closing arguments, counsel is permitted to "summarize the evidence, make submittals to the jury, urge the jury to draw reasonable inferences from the evidence, and suggest ultimate conclusions." State v. Bible, 175 Ariz. 549, 602 (1993).
¶41 Torres first challenges the prosecutor's comment that before the fight took place, Alice P. had called Torres "to participate in this whole escapade." He claims the evidence only showed that Alice P. had called one of the other assailants, who ultimately showed up at her house with two individuals unknown to her and Torres. We disagree.
¶42 Evidence in this case included a piece of paper with Torres's phone number on it that was found at Alice P.'s residence by police. And although Alice P. testified she had called one of the other assailants, she stated Torres was one of the four individuals who showed up to her house thereafter. Based on these circumstances, we conclude that the prosecutor's comment was permissible as simply urging the jury to draw a reasonable inference from the evidence and there was no error. See Bible, 175 Ariz. at 602.
¶43 Next, Torres challenges the prosecutor's comment that the fight was "four on two." He claims the evidence only showed that two of the four assailants were involved in the fight and that there were really two separate fights-one between Torres and I.A., and another between the driver of the car and M.G.
¶44 Alice P. testified that only two of the individuals from the car were involved in the fight and that she did not know where the other two went. However, M.G.'s version of events was different in that all four men got out of the car, and at some point during the fight, he was able to "put three of the men on the ground" while the last one was on top of his brother. We therefore conclude that despite conflicting testimony, the prosecutor did not misstate the evidence by characterizing the fight as "four on two." See Hulsey, 243 Ariz. 367, ¶ 102 (no error where there exist multiple separate accounts and prosecutor urges jury to draw reasonable inferences).
¶45 Lastly, Torres claims the prosecutor misstated the evidence when he argued to the jury that Torres "pulled out a gun" and shot I.A. He claims the comment was unsupported by the evidence because "no one saw a gun before hearing the gunshot." However, Alice P. testified that after she heard a gunshot, she saw him with a gun in his hand. Based on this evidence, it is not unreasonable to urge the jury to draw the inference that Torres had "pulled out a gun" at some point, and we conclude there was no error.
c. Referencing Precluded Testimony
¶46 Torres also claims the prosecutor improperly referenced testimony precluded at the state's own request. Before trial, the court granted the state's motion to preclude testimony from Alice P. that the shooting was an accident. However, during cross-examination of Alice P., she made the unelicited comment, "Like, it was an accident." The state immediately objected and the court sustained it. The state later declined a curative instruction so as not to draw more attention to the comment, but the court admonished Torres's counsel that she could not reference it during closing argument. During the state's closing argument, however, the prosecutor told the jury: "Because there were times during [Alice P.'s] testimony, as you no doubt recall, where she was hesitant. She tried to slide in the fact that this was an accident." Torres did not contemporaneously object to this argument.
¶47 Torres argues that the prosecutor's comment "improperly served to discredit the defense argument regarding a lesser included level of homicide, by suggesting that [Alice P.] could not be believed, even in her description of the shooting as lacking mens rea." Although we agree that the prosecutor's comment contravened the trial court's order that the testimony not be referenced, we conclude that it does not constitute fundamental error warranting reversal. See Murray, 250 Ariz. 543, ¶ 14. Any prejudice to Torres resulting from the comment is minimal, particularly because the precluded testimony supported Torres's theory that he lacked intent. In her own closing argument, counsel for Torres argued that the shooting was "accidental" and that Alice P. testified "to facts that substantiate that this was an accidental shooting." Torres has not shown that without the error, a reasonable jury could have reached a different verdict or that the error was such that he could not have received a fair trial, and reversal is not warranted. Id.
Cumulative Prosecutorial Error
¶48 We have identified multiple instances of prosecutorial error. However, we conclude Torres has not shown that these instances "so infected the trial with unfairness as to the make the resulting conviction a denial of due process." Roque, 213 Ariz. 193, ¶ 152 (quoting Hughes, 193 Ariz. 72, ¶ 26). Each objected-to error addressed above was either remedied immediately by the trial court, or was properly addressed by the jury instructions, and we presume that jurors follow the court's instructions. See State v. Gallardo, 225 Ariz. 560, ¶ 40 (2010). Additionally, the remaining unobjected-to errors not remediated in this manner, taken cumulatively, were not prejudicial to Torres. Therefore, we conclude the cumulative effect of the errors in this case does not warrant reversal.
Substantial Evidence to Support the Verdict
¶49 Torres next argues there was not substantial evidence that he was the assailant who shot I.A. After the state rested, Torres moved for a judgment of acquittal pursuant to Rule 20, Ariz. R. Crim. P., arguing the evidence was insufficient to support a conviction for second-degree murder. The trial court denied the motion.
¶50 Sufficiency of the evidence is a question of law, subject to de novo review. State v. West, 226 Ariz. 559, ¶ 15 (2011). Rule 20 states that "the court must enter a judgment of acquittal on any offense charged . . . if there is no substantial evidence to support a conviction." On such a motion, "the 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." West, 226 Ariz. 559, ¶ 16 (quoting State v. Mathers, 165 Ariz. 64, 66 (1990)). We consider both direct and circumstantial evidence. Id.
¶51 Torres committed second-degree murder if, without premeditation, he intentionally caused I.A.'s death; or if he caused I.A.'s death by conduct which he knew would cause death or serious physical injury; or if, under circumstances manifesting extreme indifference to human life, he recklessly engaged in conduct that created a grave risk of death and thereby caused I.A.'s death. See § 13-1104(A). Here, substantial evidence supports the three alternative means of committing second-degree murder.
¶52 Both Alice P. and M.G. testified that I.A. and M.G. were walking down the street when Alice P. and four men drove up, got out of their car, and a fight ensued. Alice P. identified one of the four men as Torres, and M.G. identified Torres as the assailant. Alice P. also testified she saw Torres and I.A. on the ground fighting when a shot was fired, and Torres got up and ran away, gun in hand. M.G. testified he was standing close by I.A., who was under Torres, when he heard a gunshot so close by that he tasted gunpowder. A medical examiner testified that I.A. had died of a close contact wound, caused by a weapon being shot so close to the skin as to singe it with a muzzle imprint. Given this evidence, we conclude that a rational trier of fact could have found each element of second-degree murder beyond a reasonable doubt, and the trial court did not err by denying Torres's Rule 20 motion for judgment of acquittal.
Disposition
¶53 For the foregoing reasons, we affirm.