State v. Martinez

• Decision Date: 30 September 2010
• Docket Number: 2 CA-CR 2007-0355
• Parties: THE STATE OF ARIZONA, Appellee, v. DOMINIQUE MARTINEZ, Appellant.
• Court: Arizona Court of Appeals

THE STATE OF ARIZONA, Appellee,

v.DOMINIQUE MARTINEZ, Appellant.

2 CA-CR 2007-0355

COURT OF APPEALS STATE OF ARIZONA DIVISION TWO DEPARTMENT A

Filed: September 30, 2010

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

Not for Publication

Rule 111, Rules of

the Supreme Court

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. CR20062952

Honorable Richard S. Fields, Judge

AFFIRMED IN PART; VACATED IN PART

Terry Goddard, Arizona Attorney General By Kent E. Cattani and Laura P. Chiasson

Tucson Attorneys for Appellee

Cooper & Udall By Dan H. Cooper and Laura E. Udall Tucson

Attorneys for Appellant B R A M M E R, Presiding Judge.

¶1 Dominique Martinez appeals from his convictions and sentences for illegally conducting an enterprise, seven counts of aggravated assault, three counts ofarmed robbery, two counts of aggravated robbery, two counts of threatening and intimidating, two counts of kidnapping, two counts of attempted armed robbery, theft of a means of transportation, theft by control, and first-degree murder. He asserts: (1) prosecutorial misconduct denied him a fair trial; (2) the trial court erred in denying his motion to sever; (3) venue in Pima County was improper for several of the charged counts; (4) the court erred by admitting into evidence a ledger containing a record of drug transactions; (5) the court erred by admitting into evidence the out-of-court statements of four individuals who did not testify at trial; and (6) the "circumstances surrounding" a witness's identification of him at trial "created a substantial likelihood of misidentification." We vacate his convictions and sentences for two of the aggravated assault counts but affirm the remainder of his convictions and sentences.

Factual and Procedural Background

¶2 On appeal, we view the facts in the light most favorable to sustaining the jury's verdicts. See State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). Martinez was indicted in August 2006 for illegally conducting an enterprise. The state alleged the enterprise had as its goals "[o]btaining money and property through various illegal methods including... transporting illegal drugs... for sale; kidnapping others believed to be drug dealers for purposes of robbery and/or extortion; auto thefts and burglaries." Martinez also was charged with twenty-seven other crimes related to the enterprise, arising from four events we describe below.

(1) Crimes related to the murder of Tony Cornejo

¶3 Tony Cornejo owned a tire store in Phoenix and supplied marijuana to Martinez's father. On the pretext of buying marijuana from him, Martinez and Roberto Solano drove to Phoenix, intending to kidnap Cornejo. Lucy Vera, who worked for Cornejo, saw Martinez, Cornejo, and others at Cornejo's tire shop on July 23, 2005.

¶4 The next day, Martinez and Solano again came to Cornejo's store and found Cornejo and Juan Ceniceros-Lopez there. After Cornejo, Solano, and Martinez talked for a few minutes, they got into an argument. Solano and Martinez pulled out guns, beat Cornejo and Ceniceros-Lopez, and threatened to kill them. Another person, Daniel Escajeda, arrived at the tire shop, and Solano attacked him as well. Solano and Martinez took from Ceniceros-Lopez two wallets, one belonging to him and the other to his brother. They told Ceniceros-Lopez they were going to kill Cornejo and leave the wallets near his body in order to implicate Ceniceros-Lopez. Martinez and Solano then left, taking Cornejo with them.

¶5 Vera then received several telephone calls from Cornejo and others, indicating Cornejo had been kidnapped and the kidnappers wanted a quantity of marijuana as a ransom. Vera, Escajeda, Manuel Chavez, and Juan Penuelas began gathering the marijuana needed for the ransom. Vera then drove to Tucson in Chavez's truck, carrying approximately five hundred pounds of marijuana. She took the truck to the hotel designated as the meeting spot, rented a room, and left the truck in the parking lot. She saw Martinez arrive in a truck she had seen the previous day at Cornejo's shop.After a few minutes, both Martinez's truck and the truck Vera had taken to Tucson were driven away.

¶6 That night, Jesus Mendivil saw Solano arrive at Martinez's house in Tucson with a truck loaded with marijuana. Mendivil and Solano left in another vehicle to meet Martinez, taking with them an assault rifle and pistol. When they met Martinez, Cornejo was in his truck. Solano then shot Cornejo and left, leaving Martinez and Mendivil with Cornejo's body. Martinez told Mendivil to push the body out of the truck, and Mendivil did so. The two men then returned to Martinez's house. When police found Cornejo's body, they found next to it wallets belonging to Ceniceros-Lopez and his brother. Nearby they also found a black vinyl bag containing Martinez's identification.

¶7 Related to these events, a grand jury charged Martinez with aggravated assault with a deadly weapon, armed robbery, aggravated robbery, and threatening and intimidating, naming Ceniceros-Lopez and Escajeda as victims.¹ The grand jury also charged Martinez with the kidnapping, aggravated assault, armed and aggravated robbery, and first-degree murder of Cornejo. Martinez also was charged with threatening and intimidating Cornejo's wife, Yssenia, based on a telephone conversation she had with one of Cornejo's kidnappers, who instructed her not to call the police.²

(2) Assault and Attempted Robbery of Vincente Sandoval

¶8 Vincente Sandoval worked with Martinez in the criminal enterprise from early 2002 through mid-2004. They stopped working together after having a disagreement concerning a load of marijuana for which Sandoval was unable to pay. On September 23, 2005, Martinez sent Armando Medrano and Solano to take Sandoval's Jaguar car as payment for the debt. Jacob Martinez, Martinez's cousin, drove Solano and Medrano to Sandoval's home. They attacked Sandoval, hitting him with their guns. During the struggle, however, the magazine fell out of Solano's gun, and Solano, Medrano, and Jacob Martinez then left empty-handed. For these offenses, the grand jury charged Martinez with attempted armed robbery, aggravated assault with a deadly weapon, and aggravated assault causing temporary but substantial disfigurement.

(3) Crimes related to the kidnapping of Clive Cook-Tracey

¶9 A few days after the incident with Sandoval, Martinez and Solano went to a house in Tucson after receiving information that money was hidden there. Clive Cook-Tracey and his cousin, Albert Walker, were staying at the house, and they arrived while Martinez and Solano were there. After Martinez and Solano found no money in the house, they beat both men and kidnapped Cook-Tracey in order to get ransom money from him. Walker escaped.

¶10 Martinez left in his truck with Cook-Tracey, while Solano drove Cook-Tracey's rental car. Martinez met Solano and Medrano at a convenience store, and the three men then took Cook-Tracey to his bank and forced him to withdraw money, whichhe gave to Martinez. Solano took Cook-Tracey to his house and continued to hold him captive until Cook-Tracey escaped later that night.

¶11 Related to this incident, the grand jury charged Martinez with first-degree burglary, ³ aggravated assault with a deadly weapon of Walker and Cook-Tracey, theft of a means of transportation, kidnapping, armed robbery, and attempted armed robbery.

(4) Attack on Mark Morlock

¶12 Tucson police sergeant Mark Morlock responded to the call reporting Cook-Tracey's kidnapping. He was directed to a location where police had located a signal from Cook-Tracey's cellular telephone. While Morlock waited there, Solano approached Morlock, pointed a gun at him, and pulled the trigger, but the gun twice failed to fire. After the two men exchanged gunfire, Morlock fled, and Solano drove away in Morlock's police vehicle. Solano took the contents of Morlock's vehicle, including his gun and badge, to Martinez.

¶13 The grand jury charged Martinez with aggravated assault on a police officer with a deadly weapon, theft of a means of transportation, and trafficking in stolen property.⁴ Martinez was arrested on September 30, 2005. Solano killed himself the next day, after being cornered by pursuing police officers. After a twenty-three-day trial, the jury found Martinez guilty of all remaining counts except the two robbery chargesnaming Escajeda as the victim. The trial court sentenced Martinez to life imprisonment without the possibility of parole for twenty-five years on the murder conviction. The court ordered the remaining prison sentences, totaling 19.25 years, be served concurrently with Martinez's life sentence. This appeal followed.

Discussion

Prosecutorial Misconduct

¶14 Martinez first argues the prosecutor committed misconduct, depriving him of a fair trial, and the trial court erred in denying his motions for mistrial and new trial. He asserts the prosecutor committed misconduct in three ways: (1) by making improper statements during his opening statement; (2) by violating repeatedly his disclosure obligations under Rule 15.1, Ariz. R. Crim. P., and Brady v. Maryland, 373 U.S. 83 (1963); and (3) by engaging in a "pattern of egregious misconduct" during trial and closing argument.

¶15 A prosecutor commits misconduct by "„call[ing] to the attention of the jurors matters that they would not be justified in considering in determining their verdict.'" State v. Jones, 197 Ariz. 290, ¶ 37, 4 P.3d 345, 360 (2000), quoting State v. Hansen, 156 Ariz. 291, 296-97, 751 P.2d 951, 956-57 (1988). For a prosecutor's improper argument to warrant reversal, the defendant must demonstrate that it "„so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" State v. Hughes, 193 Ariz. 72, ¶ 26, 969 P.2d 1184, 1191 (1998), quoting Donnelly v....