State v. Peralta
| Decision Date | 18 July 2013 |
| Docket Number | 1 CA-CR 12-0270 |
| Parties | STATE OF ARIZONA, Appellee, v. ROBERT CARLOS PERALTA, Appellant. |
| Court | Arizona Court of Appeals |
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
(Not for Publication - Rule 111, Rules of the Arizona Supreme Court)
The Honorable Carolyn K. Passamonte, Judge Pro Tempore
AFFIRMED
Criminal Appeals Section
Linley Wilson, Assistant Attorney General
Attorneys for Appellee
Phoenix
James J. Haas, Maricopa County Public Defender
by Louise Stark, Deputy Public Defender
Attorneys for Appellant
Phoenix
¶1 Robert Carlos Peralta timely appeals his convictions and sentences for discharge of a firearm at a structure, a dangerous offense, and aggravated assault, a domestic violenceand dangerous offense. This court has jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031, and -4033(A).1 Finding no reversible error, Peralta's convictions and sentences are affirmed.
¶2 The evidence at trial showed that Peralta fired two shots through the door of M.C.'s (his girlfriend's) home while she was in a nearby hallway. After being arrested, Peralta admitted reporting a false carjacking to 9-1-1 immediately after the shooting to "divert [the officers] out of the area." Peralta told the police a friend nicknamed "Chavo" (sometimes appearing in the transcript as "Chabo") fired the gun, apparently because Chavo recognized M.C. as "someone who may have robbed him in the past." Peralta admitted to having the nickname "Chavo," although he told the police he had not been called that name in a long time. Peralta did not testify and did not call any witnesses at trial.
¶3 Peralta first argues the superior court abused its discretion in precluding impeachment of M.C. through testimony from police officers about M.C.'s purported prior inconsistent statements that she did not recall making.3 Applying an abuse of discretion standard, State v. Robinson, 165 Ariz. 51, 58, 796 P.2d 853, 860 (1990), the superior court's ruling is affirmed if correct for any reason, State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984).
¶4 At trial, M.C. testified that she: (1) saw Peralta pull out what she thought was a gun immediately before the shots were fired (and she recalled telling one police officer that the gun was in his waistband, but did not recall telling another officer the gun was in his pocket); (2) did not recall what she and Peralta had been arguing about and (3) recalled hearing two gunshots, but she might have told a police officer she heard three or four shots because of echoes she heard.
¶6 In challenging that ruling, Peralta fails to show how M.C.'s trial testimony was inconsistent with statements she made to the police officers, a necessary predicate to the admissibility of such extrinsic evidence for impeachment purposes. See State v. Navallez, 131 Ariz. 172, 174, 639 P.2d 362, 364 (App. 1981) (); Ariz. R. Crim. P. 19.3(b) (); see also Ariz. R. Evid. 613(b) (); Ariz. R. Evid. 801(d)(1)(A) ().4 Accordingly, given M.C.'s lack of recollection at trial, there was no prior inconsistent statement on the points, meaning Peralta's argument fails.5
¶7 As the State suggests, "[a] claimed inability to recall, when disbelieved by the trial judge, may be viewed as inconsistent with previous statements." State v. King, 180 Ariz. 268, 275, 883 P.2d 1024, 1031 (1994). A superior court has considerable discretion in determining whether evasive answers or lack of recollection by a witness at trial may be considered inconsistent with that witness's prior out-of-court statements. See State v. Hausner, 230 Ariz. 60, 76, ¶ 60, 280 P.3d 604, 620 (2012). Peralta, however, never claimed that M.C. was feigning memory loss, and the evidence in the record fails to support any such claim.
¶8 Because they were not inconsistent and because the record does not suggest M.C. was feigning memory loss, the superior court did not abuse its discretion in granting the State's motion to prevent Peralta from offering extrinsic evidence of prior statements by M.C. on these details that she could not remember during her trial testimony.
¶9 Peralta argues prosecutorial misconduct, alleging the prosecutor improperly: (1) "tampered with a witness's testimony to gain an advantage at trial;" (2) in closing "urg[ed] the jury to consider [defendant's] alleged failure to present evidence as evidence of guilt," and that Peralta's attorney was using "smoke and mirrors;" and (3) argued in closing that "Chavo" was an uncommon nickname. Because no timely objection was made, Peralta must show fundamental, prejudicial error. State v. Henderson, 210 Ariz. 561, 568, ¶¶ 23, 26, 115 P.3d 601, 608 (2005).
¶10 Prosecutorial misconduct is not the result of legal error, mistake, negligence or insignificant impropriety but, rather, constitutes "intentional conduct which the prosecutor knows to be improper and prejudicial, and which he pursues for any improper purpose with indifference to a significant resulting danger of mistrial." State v. Aguilar, 217 Ariz. 235, 238-39, ¶ 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)). Prosecutorial misconduct constitutes fundamental error only when it is "so egregious as to deprive the defendant of a fair trial," State v. Woody, 173 Ariz. 561, 564, 845 P.2d 487, 490 (App. 1992), or "so pronounced and persistent that it permeates the entire atmosphere of the trial," State v. Lee, 189 Ariz. 608, 616, 944 P.2d 1222, 1230 (1997) (citation omitted).
¶11 Peralta's witness tampering allegation arises out of whether a detective could have obtained a warrant to obtain Peralta's cell phone records. During an interview, Peralta apparently told a detective that the phone number for "Chavo" was on Peralta's cell phone. At trial, Peralta asked that detective whether he had obtained Peralta's cell phone records to find "Chavo's" phone number. The detective responded that "[you] can't write a warrant unless it's part of the evidence of the crime itself." In discussing the State's objection to another question clarifying that the detective could not obtain a warrant for exculpatory evidence, the prosecutor stated he had instructed the detective to sanitize his response "
¶12 Instead of knowingly inducing the detective to testify falsely, A.R.S. § 13-2804(A)(2), the record shows the prosecutordiscussed with the detective responding truthfully in a way that sanitized from the response legal conclusions. As to Peralta's argument the detective's testimony that he had no basis for claiming the phone contained evidence of a crime "was a blatant lie," Peralta made no showing that the testimony was false, particularly given the nature of this case (discharge of a firearm at a structure and aggravated assault). Moreover, Peralta vigorously cross-examined the detective on the point. Peralta has shown no prosecutorial misconduct regarding the detective's testimony.
¶13 Peralta also fails to show that the prosecutor impermissibly urged the jury to consider Peralta's failure to present evidence when questioning this detective and in closing. The superior court sustained Peralta's objections to two questions on whether anyone had provided the detective with the phone records. The court later denied Peralta's motion for mistrial on grounds of burden-shifting, correctly finding the State's question about whether the detective had received any information about "Chavo's" phone number after Peralta's arrest did not shift the burden of proof.6 The record is consistent withthese rulings and does not support Peralta's prosecutorial misconduct claim.
¶14 Peralta also claims burden shifting by the prosecutor referring, in closing argument, to the absence of any evidence on Chavo's whereabouts; by suggesting that Peralta could have called Chavo to testify (if he existed) and by arguing that Peralta had "subpoena power" to compel Chavo's testimony....
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