State v. Perez

• Citation: 668 Ariz. Adv. Rep. 12,308 P.3d 1189,233 Ariz. 38
• Decision Date: 30 August 2013
• Docket Number: No. 2 CA–CR 2012–0228.,2 CA–CR 2012–0228.
• Parties: The STATE of Arizona, Appellee, v. Angel Antonio PEREZ, Appellant.
• Court: Court of Appeals of Arizona

233 Ariz. 38

308 P.3d 1189

668 Ariz. Adv. Rep. 12

The STATE of Arizona, Appellee,

v.Angel Antonio PEREZ, Appellant.

No. 2 CA–CR 2012–0228.

Court of Appeals of Arizona,

Division 2, Department A.

Aug. 30, 2013.

Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and Alan L. Amann, Tucson, Attorneys for Appellee.

Barton & Storts, P.C. By Brick P. Storts, III, Tucson, Attorneys for Appellant.

OPINION

HOWARD, Chief Judge.

¶ 1 After a jury trial, appellant Angel Perez was convicted of felony murder and two counts of attempted armed robbery. On appeal, he argues the trial court erred by giving an incorrect felony murder instruction, in its rulings on several evidentiary matters at trial, and in failing to suppress Perez's statements. He further argues the prosecutor committed misconduct warranting a new trial. For the following reasons, we affirm Perez's convictions and sentences but vacate a criminal restitution order imposed as part of his sentence.

Factual and Procedural Background

¶ 2 We view the facts in the light most favorable to upholding the conviction. See State v. Mangum, 214 Ariz. 165, ¶ 3, 150 P.3d 252, 253 (App.2007). In June 2009, L.F. and Jr. were sitting on the patio of their home drinking beer. With a black t-shirt covering his face, Perez approached the home wielding a gun. He demanded marijuana, money, and the keys to L.F. and Jr.'s truck. Jr. walked to the nearby truck and gave Perez a bag of marijuana that was inside, then returned to the patio of the house. L.F. tried to escort Perez away from the property and Perez shot him. Jr. ran inside and told his mother to call 9–1–1, then ran outside and dragged L.F. inside the house. L.F. was airlifted to a hospital for treatment where he remained for six weeks. He eventually died as a result of his gunshot wounds.

¶ 3 Perez was charged and convicted as described above. He was sentenced to concurrent terms for the murder and one count of armed robbery, the longest of which was a life sentence without possibility of release for 25 years, and to a consecutive, presumptive term of 7.5 years for the other count of armed robbery. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12–120.21(A)(1) and 13–4033(A)(1).

Felony Murder Instruction

¶ 4 Perez first argues the trial court erred by giving an incorrect felony murder instruction that requires reversal and remand for a new trial. The state concedes the court's instruction constituted error but argues the error was harmless. We review a claim based on an incorrect jury instruction for harmless error.¹State v. Valverde, 220 Ariz. 582, ¶ 11, 208 P.3d 233, 236 (2009). An error is harmless if the state can establish beyond a reasonable doubt, “ ‘in light of all of the evidence,’ ” that the error did not “contribute to or affect the verdict.” Id., quoting State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993).

¶ 5 Felony murder consists of a person committing a predicate felony, including robbery, and “in the course of and in furtherance of the offense or immediate flight from the offense, the person or another person causes the death of any person.” A.R.S. § 13–1105(A)(2). “[W]here the killing ‘emanates' from the crime itself, and is a natural and proximate result thereof, it is committed in furtherance of the felony within the meaning of the statute.” State v. Lopez, 173 Ariz. 552, 555, 845 P.2d 478, 481 (App.1992), quotingState v. Moore, 580 S.W.2d 747, 751 (Mo.1979).

¶ 6 The trial court gave the jury a standard felony murder instruction, but also added the following language:

[T]here is no requirement that the killing occurred while committing or engaged in the felony, or that the killing be part of the felony. The homicide need not have been committed to perpetrate the felony.

It is enough if the felony and the killing were part of the same series of events.

Our supreme court has explicitly disapproved the last sentence of this instruction. State v. Martinez, 218 Ariz. 421, ¶ 23, 189 P.3d 348, 354–55 (2008). The court explained that the language of that sentence has “long [been] absent from Arizona's felony murder statute.” Id.

¶ 7 Despite this erroneous instruction, the state has shown beyond a reasonable doubt that the instruction could not have affected the verdict. The evidence adduced at trial shows that the murder occurred “in the course of and in furtherance of the offense” of armed robbery. § 13–1105(A)(2). During Perez's armed attempt to get marijuana, money, and truck keys from the victims, L.F. resisted. Perez shot him during that resistance. Perez never claimed this conduct did not occur “in the course of and in furtherance of the offense or immediate flight from the offense,” § 13–1105(A)(2), but rather denied he was the perpetrator. Thus, the erroneous language was never in issue. Moreover, this conduct fulfills the statutory requirements, and additional language in the instruction that might have allowed the jury to convict under more attenuated circumstances could not have affected the verdict in this case. Accordingly, although the trial court erred, the state has met its burden of proving beyond a reasonable doubt that the error was harmless. Valverde, 220 Ariz. 582, ¶ 11, 208 P.3d at 236.

Prosecutorial Misconduct

¶ 8 Perez next argues the prosecutor committed misconduct by failing to redact a recording of Perez's statement, having a conflict of interest with a witness, improperly vouching for the credibility of a witness, and failing to “follow the rules and file motions.” The state responds that no misconduct occurred.

¶ 9 As an initial matter, Perez has forfeited two of these arguments. First, Perez did not object to the prosecutor having a conflict of interest below and has therefore forfeited that argument absent fundamental, prejudicial error. State v. Henderson, 210 Ariz. 561, ¶¶ 19–20, 115 P.3d 601, 607 (2005) (failure to object to alleged error in trial court results in forfeiture of review for all but fundamental error). But because he does not argue on appeal that the alleged error is fundamental, and because we find no error that can be so characterized, the argument is waived. See State v. Moreno–Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App.2008) (failure to argue fundamental error on appeal waives argument); State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App.2007) (court will not ignore fundamental error if it finds it).

¶ 10 Second, his argument that the prosecutor did not “follow the rules and file motions” is completely unsupported by authority or citations to the record. He has therefore waived this issue by failing to adequately argue it on appeal. SeeAriz. R.Crim. P. 31.13(c)(1)(vi) (opening brief “shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on.”); State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) (inadequate argument on appeal waives issue).

¶ 11 To show that reversible misconduct occurred, the defendant must establish “that the prosecutor's misconduct ‘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. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). We also consider whether the cumulative effect of the misconduct “permeate[d] the entire atmosphere of the trial.” Id.

¶ 12 Perez, however, does not argue that the alleged misconduct in his remaining claims, whether considered individually or cumulatively, actually denied him a fair trial. He therefore has failed to meet his burden of establishing that the prosecutor's conduct here infected the trial with unfairness to such a degree that it denied him due process of law. See id.

¶ 13 Moreover, the conduct Perez objects to did not amount to misconduct. As to the recording, the prosecutor did initially redact the recording. However, when it was played in court, Perez objected that it had been over-redacted. After consulting with counsel, the trial court characterized the redactions that were made as at most a “misunderstanding” between the court and counsel, found no prejudice to Perez, and ordered the recording played in full with the exception of one portion at the end. This record shows the prosecutor made a good faith effort to comply with the original order to redact the recording, followed by the prosecutor's compliance with an explicit order of the court. The prosecutor did not commit misconduct by complying with the court's orders.

¶ 14 Nor did the prosecutor impermissibly vouch for his witness. The prosecutor asked the witness, who was scheduled to be sentenced in a later case, if the witness felt lying on the stand could have an adverse affect on his sentence. In so asking, the prosecutor did not “plac[e] the prestige of the government behind [the] witness,” but rather elicited what motives a witness of perhaps questionable credibility might have for telling the truth. See State v. Palmer, 219 Ariz. 451, ¶ 6, 199 P.3d 706, 708 (App.2008). No misconduct occurred. Accordingly, we reject Perez's argument. See Hughes, 193 Ariz. 72, ¶ 26, 969 P.2d at 1191.

Daubert Hearing on Polygraph Test Results

¶ 15 Perez next argues the trial court erred by failing to conduct a hearing on the admissibility of Perez's polygraph examination results pursuant to Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). We review decisions on the admissibility of evidence for an abuse of discretion. State v. McGill, 213 Ariz. 147, ¶ 30, 140 P.3d 930, 937 (2006). Before trial, Perez sought to introduce the results of his polygraph examination because he considered them favorable. The state did not stipulate to their admission. The trial court ruled that polygraph test results were “generally inadmissible and specifically in this case...