State v. Duzan
| Decision Date | 13 April 1993 |
| Docket Number | CA-CR,No. 1,1 |
| Parties | STATE of Arizona, Appellee, v. Angela Denise DUZAN, Appellant. 91-578. |
| Court | Arizona Court of Appeals |
Angela Denise Duzan ("defendant") appeals from her conviction for fraudulent schemes and artifices and disposition. We affirm.
The defendant was in charge of accounting operations for the M Company, a living trust partnership between J M and his wife with their children as beneficiaries. 2 Using herself and her boyfriend as signatories and her home address as that of the business, the defendant opened a bank account in the name of Citation Partnership, a venture in which the M Company was a partner, and deposited over $96,000 in M Company funds. She later withdrew the money and deposited it in her personal bank account.
The defendant was indicted for fraudulent schemes and artifices, a class 2 felony. She testified at trial that M encouraged her to open the business account and permitted her to take the money in exchange for sexual relations. M swore that the defendant was not permitted to take $96,856.39 from the account and denied that he repeatedly had requested that the defendant engage in sexual relations with him. The jury found the defendant guilty as charged.
The trial court suspended the imposition of sentence and placed the defendant on probation for seven years, a special term of which was that she pay $96,897.39 in restitution. The defendant timely appealed, raising as issues:
1) Whether the trial court erred in excluding three former employees' complaints naming M, as well as a statement by the defendant's former co-worker;
2) Whether the prosecutor's comments during closing argument deprived the defendant of a fair trial, including whether the trial court erred in permitting the state to argue punishment to the jury during its closing; and
3) Whether the trial court erred in its jury instruction on reasonable doubt.
Prior to trial, the state filed a motion in limine to preclude mention of three complaints filed by former employees against M and his company which included allegations of breach of contract, sexual harassment and discrimination, and intentional infliction of emotional distress. The state argued that the complaints were irrelevant and hearsay. Conceding that the complaints constituted hearsay, the defendant maintained that they nonetheless were admissible under Arizona Rules of Evidence ("Rules") 404 and 405(b) as evidence of M's prior bad acts and a pertinent character trait. The court held that, if M testified on direct examination that he never had been sued, the defendant could impeach his testimony with the complaints. M never referred to any lawsuit in his testimony.
During cross-examination, defense counsel inquired whether M had ever had an affair with a plaintiff in one of the complaints. The court sustained the state's objection. Defense counsel then asked M about another plaintiff. Without the jury present, defense counsel argued that he should be permitted to question M about the lawsuits because M's testimony left the impression that he had never had affairs. The court determined that it had been the defense and not the state which had opened the door about the complaints. There was no further examination of M.
After the state rested, the defendant reurged the admissibility of the former employees' litigation. The court ruled that the evidence was irrelevant and that its minimal probative value was outweighed by its prejudice.
On appeal, the defendant argues that she was denied a fair trial because the trial court excluded evidence admissible under Rules 404 and 405(b) to impeach M's plans, opportunities and motives and that the probative value of this evidence outweighed its prejudice. She further submits that M's statements on direct examination that his business existed solely to provide for his family opened the door for the defense to show with the complaints that its function also was to provide M with a "steady stream of female companionship."
A trial court has considerable discretion in determining the relevancy and admissibility of evidence; its decision will not be reversed absent an abuse of that discretion. E.g., State v. Atwood, 171 Ariz. 576, 634, 832 P.2d 593, 651 (1992), cert. denied, 506 U.S. 1084, 113 S.Ct. 1058, 122 L.Ed.2d 364 (1993); State v. Hensley, 142 Ariz. 598, 602, 691 P.2d 689, 693 (1984). The central issue at trial was whether the defendant knowingly obtained any benefit from the M Company by means of false or fraudulent pretenses. The complaints did not relate to the authorization of an employee to open a bank account. It was within the court's broad discretion to decide that the fact that M and his company had been named by former employees in complaints alleging sexual harassment and breach of contract did not tend to prove or disprove any fact of consequence to the determination of the pending criminal action against the defendant and that the prejudice was greater than any probative value. See Ariz.R.Evid. 401, 403, 608(b); see also State v. Taylor, 169 Ariz. 121, 125, 817 P.2d 488, 492 (1991); State v. Amaya-Ruiz, 166 Ariz. 152, 167, 800 P.2d 1260, 1275 (1990), cert. denied, 500 U.S. 929, 111 S.Ct. 2044, 114 L.Ed.2d 129 (1991).
The trial court further excluded as hearsay the defendant's statement on direct examination repeating a former co-worker's statement about the co-worker's alleged encounter with M. Although the defendant at trial failed to argue for the statement's admissibility, she maintains on appeal that the statement is allowable as an excited-utterance exception to the rule excluding hearsay. We will not consider this argument for the first time on appeal. State v. Flores, 160 Ariz. 235, 238, 772 P.2d 589, 592 (App.1989).
The defendant challenges as fundamental error several of the prosecutor's statements during closing argument; she also argues that cumulatively they are prejudicial. We note preliminarily that the doctrine of cumulative error is not recognized in Arizona, State v. Prince, 160 Ariz. 268, 274, 772 P.2d 1121, 1127 (1989), absent related errors, State v. Filipov, 118 Ariz. 319, 323, 324, 325, 576 P.2d 507, 511, 512, 513 (App.1978). 3
The defendant first contends that the prosecutor improperly expressed his personal belief about her guilt when he stated the following during rebuttal argument:
[Defense counsel] continues to just tell you, oh, all those facts aren't in court. I submit to you they're crucial, because they show beyond a reasonable doubt that this defendant is a scheming, manipulative person. I stand before you and tell you that she is. [Emphasis added.]
Earlier, however, defense counsel had remarked:
We got Angie over here. Oh, the prosecutor is going to tell you she's a cold, calculating, evil, vicious woman that goes around starting affairs with older men and takes their money. The prosecutor is allowed to say that. You're allowed to believe differently because you see her. Now she was sitting on the stand and--okay, I'm not unbiased. But look, I didn't see a cold, calculating woman out there. I saw a frightened, fearful, tearful, hurt, insecure, timid woman.
Because the defendant failed to object to the prosecutor's statement, absent a finding of fundamental error, we will not reverse the conviction on this basis. E.g., State v. Hill, 174 Ariz. 313, 321, 848 P.2d 1375, 1383 (1993); State v. Cook, 170 Ariz. 40, 51, 821 P.2d 731, 742 (1991), cert. denied, 506 U.S. 846, 113 S.Ct. 137, 121 L.Ed.2d 90 (1992).
There are two types of prosecutorial vouching: "(1) when the prosecutor places the prestige of the government behind its witness, and (2) where the prosecutor suggests that information not presented to the jury supports the witness's testimony." State v. Dumaine, 162 Ariz. 392, 401, 783 P.2d 1184, 1193 (1989). A prosecutor must avoid assertions of personal knowledge. State v. Salcido, 140 Ariz. 342, 344, 681 P.2d 925, 927 (App.1984); see also E.R. 3.4(e) (). However, misconduct alone does not necessitate reversal unless, as a result, the defendant was denied a fair trial. E.g., Atwood, 171 Ariz. at 608, 832 P.2d at 625; State v. Hernandez, 170 Ariz. 301, 307, 823 P.2d 1309, 1315 (App.1991).
While the prosecutor improperly asserted his opinion about the defendant, we do not find that the comment deprived her of a fair trial. First, the prosecutor's remark was in response to defense counsel's description of how he anticipated the prosecutor would characterize the defendant. See State v. Alvarez, 145 Ariz. 370, 373, 701 P.2d 1178, 1181 (1985). Second, it was preceded by the prosecutor's permissible comment that "[the facts] show beyond a reasonable doubt that this defendant is a scheming, manipulative person." Even further, the jury was instructed soon after the remark that counsel's comments during opening and closing arguments were not evidence. See State v. Tuzon, 118 Ariz. 205, 208, 575 P.2d 1231, 1234 (1978) (). We therefore find that while this remark was an improper response, it was not either an invitation to the jury to consider matters not properly before it or an example of the prosecutor placing the prestige of the government behind its witness.
The defendant next submits...
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State v. West
...erroneous. 3 Giving this instruction is not fundamental error; therefore, we do not consider its merits in this case. State v. Duzan, 176 Ariz. 463, 862 P.2d 223 (App.1993). The trial court also committed no error, fundamental or otherwise, by failing to instruct the jury that informer test......
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