The State Of Ariz. v. Macias

THE STATE OF ARIZONA, Appellee,

v.CIRILO PEDRO MACIAS, Appellant.

2 CA-CR 2009-0143

Cause No. CR20082867

Court Of Appeals

State Of Arizona

Division Two

Date: August 19, 2010

Terry Goddard, Arizona Attorney General, By Kent E. Cattani and Alan L. Amann Tucson, Attorneys for Appellee

Isabel G. Garcia, Pima County Legal Defender, By Scott A. Martin Tucson Attorneys for Appellant

VASQUEZ, Presiding Judge.

¶1 After a jury trial, Cirilo Macias was convicted of aggravated assault causing serious physical injury, aggravated assault with a deadly weapon or dangerous instrument, and attempted second-degree murder, all dangerous nature offenses. The trial court sentenced him to enhanced, partially aggravated, concurrent terms of imprisonment totaling fourteen years. On appeal, Macias contends: (1) the court erred in denying his motion for a mistrial based upon cumulative prosecutorial misconduct; and (2) his "enhanced sentence for attempted second-degree murder was fundamental error and should be vacated, because the State did not allege a dangerous nature enhancement on that count." For the reasons that follow, we affirm.

Facts and Procedural Background

¶ We view the facts in the light most favorable to upholding the jury's verdicts. State v. Mangum, 214 Ariz. 165, ¶3, 150 P.3d 252, 253 (App. 2007). Shortly after 2:00 a.m. on July 20, 2008, Macias and four acquaintances, Matt S., Desirea D., Richard M., and Francisco Q., were socializing in a parking lot. Desirea was waiting for F.J., whom she was dating, to finish his shift at a nearby restaurant. F.J. arrived in a truck with two other men, Luis L. and Arturo G. As Desirea walked toward the truck to go with F.J., Luis began shouting profanities at Matt and challenged Richard to a fight. F.J. and Arturo calmed Luis down and persuaded him to get back into the truck. Desirea left in the truck with F.J., Luis, and Arturo, and they drove to her house where she and F.J. were dropped off. While Desirea and F.J. were standing in the street talking, they noticed a car slowly drive past them. It then stopped nearby and Macias, Matt, and Richard got out.

¶ Macias had followed Desirea and F.J. to Desirea's house because Macias wanted "to see what was going on." Macias approached Desirea and F.J., carrying a baseball bat. Macias called out to F.J., and as F.J. turned around, Macias "whack[ed]" him twice on the head. F.J. fell to the ground and Macias hit him with the bat two to three more times. Macias and the other men then ran back to their vehicle and drove away. Later that night, Macias disposed of the baseball bat in the desert. After Macias left Desirea's house, she telephoned 9-1-1. When the police and paramedics arrived, they found F.J. lying on the ground. His skull was "crushed so badly, [the number of fractures were] too numerous to count," and he was "bleeding in his brain."

¶ Macias was indicted on two counts of aggravated assault and one count of attempted second-degree murder. A jury found him guilty of all charges and found all to be of a dangerous nature. The trial court sentenced him to enhanced, partially aggravated prison terms of ten years for each count of aggravated assault and an enhanced, partially aggravated term of fourteen years for attempted second-degree murder, ordering all of the sentences to be served concurrently. This appeal followed.

Discussion

I. Prosecutorial Misconduct

¶ Macias asserts four incidents of prosecutorial misconduct occurred during trial that denied him a fair trial, and he contends the trial court erred in denying his motion for mistrial based on the cumulative effect of the misconduct. He claims the prosecutor accused him of "tailor[ing] his [trial] testimony 'to save his own ass, '" expressed his personal opinion regarding Macias's guilt, vouched for the state'switnesses, and shifted the burden of proof to Macias. We address each of the alleged instances of misconduct below.

¶ "The trial court is in the best position to determine whether an attorney's remarks require a mistrial, and its decision will not be disturbed absent a plain abuse of discretion." State v. Hansen, 156 Ariz. 291, 297, 751 P.2d 951, 957 (1988); State v. Dumaine, 162 Ariz. 392, 403, 783 P.2d 1184, 1195 (1989); State v. Roscoe, 184 Ariz. 484, 496, 910 P.2d 635, 647 (1996). "The first step in evaluating [Macias's] prosecutorial misconduct claim is to review each alleged incident to determine if error occurred." See State v. Roque, 213 Ariz. 193, | 154, 141 P.3d 368, 403 (2006). And "[a]fter reviewing each incident for error, we must assess whether the incident should count toward [his] prosecutorial misconduct claim," and "evaluate the[] cumulative effect [of any incidents of misconduct] on the trial." Id. 1 155.

¶ "Prosecutorial misconduct 'is not merely the result of legal error, negligence, mistake, or insignificant impropriety, but, taken as a whole, amounts to intentional conduct which the prosecutor knows to be improper and prejudicial....'" State v. Aguilar, 217 Ariz. 235, ¶11, 172 P.3d 423, 426-27 (App. 2007), quoting Pool v. Superior Court, 139 Ariz. 98, 108-09, 677 P.2d 261, 271-72 (1984). To determine whether a prosecutor's remarks were improper, a trial court "'should consider: (1) whether the[y]... call[ed] to the jurors' attention matters that they would not be justified in considering in determining the verdict; and (2) the probability that the jurors, under the circumstances of the particular case, were influenced by the remarks.'" State v. Jones, 197 Ariz. 290, ¶37, 4 P.3d 345, 360 (2000), quoting Hansen, 156 Ariz. at 296-97, 751 P.2d at 956-57; State v. Armstrong, 208 Ariz. 345, 1 61, 93 P.3d 1061, 1073 (2004).

Discrepancies Between Trial Testimony and Statement to Police

¶ Macias first argues the prosecutor improperly accused him of tailoring his trial testimony to concoct a theory of self-defense. Macias testified that he had struck F.J. because he thought F.J. might have been reaching for a weapon, possibly a gun. However, Macias made no mention of this in his earlier statement to the police. During cross-examination, the prosecutor asked Macias about this discrepancy:

[PROSECUTOR]: That would be a moment you would want to remember very well, the moment you swing the bat; right?

[MACIAS]: Yeah.

[PROSECUTOR]: And, in fact, you are telling the jury you know exactly what [F.J.] was doing at that moment, right, because he was presenting to you a deadly threat; right?

[MACIAS]: Yes.

[PROSECUTOR]: That's your testimony. And, sir, you didn't say that to the police; right?

[MACIAS]: No.

[PROSECUTOR]: But now you know that the only way that you can hit him with the bat and nearly kill him is if he presents a deadly threat to you; right?

The trial court sustained Macias's objection to the prosecutor's last question, but denied his motion for a mistrial made on the ground "it was a clear inference to the jury his testimony has been tailored."¹

¶ First, "[a]n adverse witness may be impeached by a showing that he has previously made statements inconsistent with his present testimony." State v. Caldwell, 117 Ariz. 464, 473, 573 P.2d 864, 873 (1977). See also Ariz. R. Evid. 607. This includes a defendant who elects to testify in his own defense. State v. Guerra, 161 Ariz. 289, 296, 778 P.2d 1185, 1192 (1989). Second, to the extent the prosecutor intended for the jury to infer from the inconsistent statements that Macias was lying to support a defense, there was nothing improper about this. However, a trial court has discretion to limit the scope of cross-examination when appropriate. State v. Fleming, 117 Ariz. 122, 125, 571 P.2d 268, 271 (1977). The prosecutor's last question, "But now you know that the only way that you can hit him with the bat and nearly kill him is if he presents a deadly threat to you; right?" suggested not only that Macias was lying to avoid the consequences of his criminal act, a permissible inference, but also that he was lying in conformity with legal information provided him by counsel, an inflammatory suggestion for which the prosecutor had no factual basis or foundation. Thus, the trial court properly sustained Macias's objection to this question. But, even assuming the question was inappropriate, the trial judge was in the best position to assess its apparent effect on the jury at the time the exchange occurred. And, because we presume the jury followed the trial court's instructions that it must not consider questions or responses that have been the subject of sustained objections, we agree with the court's implicit conclusion that the comments had no effect on the jury's deliberations. Roque, 213 Ariz. 193, ¶152, 141 P.3d at 403.

¶ Macias also asserts that during his rebuttal closing argument, the prosecutor impermissibly expressed his personal opinion that Macias was guilty of the charged offenses and "appeal[ed] to the jurors' fears and emotions by using derogatory language and belittling terms." The prosecutor again referred to the discrepancy between Macias's trial testimony and his earlier statement to the police, stating to the jury:

Lisa Miller [the primary detective on F.J.'s case] sits there and says to [Macias], okay, now is your chance to tell us. And think of his motive at that point to come up with whatever he can, and the lights are on in there but he can't come up with it. He can't say it. He says, no, no weapon, no weapon, there was no gun. He didn't say I thought of a gun. There was no word of a gun at Desirea's house, and there is no evidence to that effect except when he wanders into court here and tells you something, which you are allowed to conclude is an effort on his part to save his own ass.

Macias again objected, but the court overruled the objection.

¶ "[I]t is not only improper but also unethical for an attorney, in his closing argument, to express his personal belief in the defendant's guilt or innocence." State v. Byrd, 109 Ariz. 10, 11, 503 P.2d 958, 959 (1972). "Argument containing personal...