State v. Foster

THE STATE OF ARIZONA, Appellee, v. FLOYD LEWIS FOSTER JR., Appellant.

No. 2 CA-CR 2018-0041

ARIZONA COURT OF APPEALS DIVISION TWO

June 10, 2019

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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.19(e).

Appeal from the Superior Court in Pima County

No. CR20134960001

The Honorable Danelle Liwski, Judge

AFFIRMED

COUNSEL

Mark Brnovich, Arizona Attorney General

Joseph T. Maziarz, Chief Counsel

By Alexander M. Taber, Assistant Attorney General, Tucson

Counsel for Appellee

James Fullin, Pima County Legal Defender

By Robb P. Holmes, Assistant Legal Defender, Tucson

Counsel for Appellant

MEMORANDUM DECISION

Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Eppich and Judge Espinosa concurred.

ECKERSTROM, Chief Judge:

¶1 Floyd Foster appeals from his convictions and sentences for unlawful possession of narcotic drugs, drug paraphernalia, burglary tools, and a firearm. Foster argues (1) the trial court erred in denying his motion for a mistrial based on the prosecutor's closing argument; (2) the court committed reversible error in not declaring a mistrial after the state introduced other-act evidence; and (3) resentencing is required because the court improperly instructed the jury on an aggravating factor. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Factual & Procedural History

¶2 "We view the evidence in the light most favorable to sustaining the convictions." State v. Gay, 214 Ariz. 214, ¶ 2 (App. 2007). In November 2013, after Foster was stopped by police for a license-plate violation, he was arrested for driving with a suspended license.¹ Upon searching a backpack Foster was wearing, police discovered a handgun, a vehicle lock pick set, a glass methamphetamine pipe with residue, over forty grams of methamphetamine, and over ten grams of heroin. A search of a cell phone found in Foster's pocket revealed numerous text messages regarding the sale of drugs and vehicle theft, some of them addressed to "Floyd."

¶3 The state charged Foster with possession of a dangerous drug for sale, possession of a narcotic drug for sale, possession of drug paraphernalia, possession of burglary tools, and possession of a deadly weapon by a prohibited possessor. After a five-day trial, a jury convicted Foster on all five counts. The jury also found the state had proven beyond a reasonable doubt two aggravating factors, namely that Foster "committed the offense(s) in consideration for receipt of or in expectation of receipt of anything of pecuniary gain" and "possessed a deadly weapon during thecommission of the offense(s)." The trial court sentenced Foster to concurrent prison terms totaling 15.75 years.

Propriety of Prosecutor's Closing Argument

¶4 Foster first contends the trial court erred in denying his motion for mistrial on the grounds that, during closing argument, the prosecutor improperly implied defense counsel helped B.F., Foster's minor son, to fabricate Foster's defense.² "[W]e will not disturb a trial court's denial of a mistrial for prosecutorial misconduct in the absence of a clear abuse of discretion." State v. Newell, 212 Ariz. 389, ¶ 61 (2006).³ "We 'will reverse a conviction for prosecutorial misconduct if (1) misconduct is indeed present; and (2) a reasonable likelihood exists that the misconduct could have affected the jury's verdict, thereby denying [the] defendant a fair trial.'" State v. Gallardo, 225 Ariz. 560, ¶ 34 (2010) (alteration in Velazquez) (quoting State v. Velazquez, 216 Ariz. 300, ¶ 45 (2007)).

¶5 Foster's primary defense theory was that "he possessed the backpack that his son found solely for the purpose of disposing of it and its contents." Foster's son, B.F., testified at trial to the following: A couple of days before Foster's arrest, B.F. found a backpack in a yard adjacent to the property of T.F., Foster's former wife. Upon glancing inside, B.F. noticed a white powder and grew concerned the backpack contained drugs, so he hid it inside a toolbox in a shed on T.F.'s property. One or two days later, Foster discovered the backpack and confronted B.F., who told Foster the bag should not be around the house. Foster appeared angry and left the house. Foster was arrested carrying the backpack shortly after.

¶6 During cross-examination, B.F. testified he had not discussed the case with his father and no one had directed him to testify. After B.F.'s testimony, the state presented a recording of a phone call between B.F. and Foster from October 2014, nearly a year after Foster's arrest and approximately a month before trial. In that call from the jail, Foster asked B.F. if he "remember[ed] what color that thing was," and clarified "that thing" was "yours." Foster then told B.F. to have his grandfather "take [B.F.] down to talk to [Foster's] attorney as soon as possible, okay?"

¶7 Foster contends the prosecutor "insinuat[ed] without evidence that defense counsel provided Foster's defense to" B.F. Foster specifically objects to the following portion of the state's closing argument:

Well, remember, the very first time the State heard from the defendant's son was Wednesday before we started this trial, last week. The very first time the government heard this story was just before we started this trial. Not only should that settle any question that you have about what investigation could have also been done, it should tell you exactly how you should evaluate the credibility of everything that [B.F.] said on the stand, just like the fact that he was less than truthful about having spoken to his father about the case.

He is here in court testifying, after having spoken to the defense attorney about the case. Do you really think that even a teenager would forget how he came to be here? It is not an experience that anyone would forget the details of, even someone who is 14.

You heard an argument about, what kind of father wouldn't protect his son? I would ask you, who would put his son up to that story? What kind of father would that be?

¶8 Although prosecutors have a "duty to refrain from improper methods calculated to produce a wrongful conviction," Berger v. United States, 295 U.S. 78, 88 (1935), so long as they employ legitimate methods they "have wide latitude in presenting their closing arguments to the jury," State v. Jones, 197 Ariz. 290, ¶ 37 (2000). "[D]uring closing argumentscounsel may 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). Prosecutors may also criticize "defense theories and tactics." State v. Ramos, 235 Ariz. 230, ¶ 25 (App. 2014) (quoting United States v. Sayetsitty, 107 F.3d 1405, 1409 (9th Cir. 1997)). On the other hand, closing remarks are improper if they "call to the attention of the jurors matters that they would not be justified in considering in determining their verdict." State v. Hansen, 156 Ariz. 291, 296-97 (1988). A closing argument that "impugns the integrity or honesty of opposing counsel is also improper." State v. Hughes, 193 Ariz. 72, ¶ 59 (1998).

¶9 Here, the trial court did not abuse its discretion by refusing to find impropriety in the prosecutor's single reference to B.F. speaking with Foster's defense attorney. Rather, the statement permissibly undermined the defense theory by impeaching B.F.'s credibility. By reminding the jurors that B.F. spoke first to Foster, then to Foster's attorney, the prosecutor undermined B.F.'s claims that he had not spoken with anyone about the case and that nobody had told him he should testify. This was just one of several prosecutorial statements intended to impeach the credibility of B.F.'s story about the backpack. And although the state permissibly suggested that Foster "put his son up to that story," read in the totality of the state's closing argument, it did not imply that Foster's defense counsel took part in that fabrication. Thus, the trial court did not abuse its discretion in denying Foster's motion for mistrial.

Evidence of Syringe in Foster's Holding Cell

¶10 Foster next contends the trial court erred by allowing the prosecution to present evidence of a syringe found in Foster's holding cell after his arrest and in denying Foster's related motion for a mistrial.⁴ "We review the admission of evidence and the denial of a mistrial for an abuse of discretion." State v. Burns, 237 Ariz. 1, ¶ 56 (2015). We find no such abuse of discretion here.

¶11 After Foster's arrest, officers placed him in a holding cell in a police substation. An officer searched the cell for contraband before Foster was placed inside and again after he was removed. That officer testified he found no syringe in the cell before he placed Foster inside but discovered a syringe in the corner of the cell after Foster was removed. Due to a clericalerror, the syringe was destroyed before either party could test it for DNA evidence or drug residue.

¶12 Foster did not contemporaneously object to the officer's testimony about the syringe, but he moved for a mistrial shortly afterward, arguing that testimony constituted other-act evidence, was irrelevant, and was unduly prejudicial. The trial court denied a mistrial but offered to strike the syringe testimony from evidence. Foster requested instead that the court provide an instruction pursuant to State v. Willits, 96 Ariz. 184 (1964). The court agreed to provide a Willits instruction and granted both parties' requests to continue questioning the officer regarding the syringe.

¶13 Foster argues the trial court should have granted his motion for mistrial because the evidence concerning the syringe was inadmissible other-act evidence and its probative value was outweighed by the danger of unfair prejudice. Although his opening brief challenges the admissibility of the syringe evidence, Foster did not...