State v. Rosas-Hernandez, 1 CA-CR 01-0153.

CourtCourt of Appeals of Arizona
Citation202 Ariz. 212,42 P.3d 1177
Docket NumberNo. 1 CA-CR 01-0153.,1 CA-CR 01-0153.
PartiesSTATE of Arizona, Appellee, v. Arnulfo ROSAS-HERNANDEZ, Appellant.
Decision Date28 March 2002

Janet Napolitano, Attorney General By Randall M. Howe, Chief Counsel, Criminal Appeals Section, and Donna J. Lam, Assistant Attorney General, Phoenix, Attorneys for Appellee.

James J. Haas, Maricopa County Public Defender By Christopher V. Johns, Deputy Public Defender, Phoenix, Attorneys for Appellant.


BARKER, Judge.

¶ 1 This case raises an issue of first impression in Arizona: Does an individual who pleads guilty and has been sentenced retain the Fifth Amendment right to refuse to testify during the time period in which the individual may file an initial petition for post-conviction relief? Arnulfo Rosas-Hernandez ("defendant") contends the trial court erred in allowing his alleged co-participant to invoke his Fifth Amendment right and refuse to testify at trial. Defendant also claims error based on the prosecutor's statements in closing argument and the trial court's refusal to include the phrase "mere association" in the jury instructions. Finding no error, we affirm.


¶ 2 Defendant, along with his brother-in-law Ignacio Betancourt and a third man named Suaezo, entered the home of Jose A. on August 6, 1999. They claimed to be law enforcement officials. Jose was sleeping in the bedroom when the men arrived. Suaezo pulled out a gun. He and Betancourt herded Maria A. (Jose's wife), their five children, and another female resident into a bedroom closet. Defendant stayed in the living room, guarding the front door.

¶ 3 Suaezo and Betancourt then went to the bedroom where Jose was sleeping. Maria escaped from the closet and ran to her husband's bedroom. She found Jose face down with his hands tied behind his back. Maria told her husband to give the men money, if that's what they wanted. Jose responded that he had no money. Jose struggled with his assailants and freed himself. He grabbed a gun and fired several rounds. Betancourt was shot four times in the stomach. Suaezo and Betancourt then subdued Jose and shot him in the head, killing him.

¶ 4 Outside, defendant was seen pacing the house seconds before the shots were fired. After the shots were fired, defendant got into the driver's seat of the car. Betancourt and Suaezo exited the house, got into the car, and defendant drove off. A neighbor provided the license plate number to police. The vehicle was owned by defendant. The police located the vehicle and apprehended defendant and Betancourt. Suaezo was never found.

¶ 5 At trial, defendant's defense was that he was at the scene but did not participate in the offense and remained outside the residence. However, four witnesses testified that three men entered the house and two of the witnesses identified defendant as being among them.

¶ 6 A jury convicted defendant of first degree felony murder, burglary, attempted armed robbery and seven counts each of kidnapping and aggravated assault, all dangerous offenses. The court sentenced him to concurrent terms of life without release for twenty-five years on the murder count, seven years each for the burglary and two of the kidnapping counts, and five years each for two of the aggravated assault convictions. The court also sentenced defendant to ten calendar years for each of the remaining kidnapping and aggravated assault charges, which were dangerous crimes against children. Those terms were consecutive to each other as well as to the other counts.

¶ 7 Defendant timely appealed. We have jurisdiction pursuant to A.R.S. sections 12-120.21(A)(1)(1992), 13-4031 (2001), and 13-4033(A)(2001).


Betancourt's Invocation of the Privilege Against Self-Incrimination


¶ 8 Prior to defendant's trial, Betancourt pled guilty to second degree murder and was sentenced to twenty-two years in prison. Defendant sought to call him as a witness.1 Betancourt, however, refused to testify, invoking his Fifth Amendment right against self-incrimination. At a hearing on the matter, Betancourt's counsel asserted that Betancourt intended to file a petition for post-conviction relief, and that if he were successful in that petition, his testimony at defendant's trial could be used against him at a future trial. Betancourt personally told the court that he would not testify. Over defense counsel's objection, the court held that Betancourt could properly assert his Fifth Amendment right.

¶ 9 Defendant argues that Betancourt waived his Fifth Amendment right since he had pled guilty and been sentenced. Defendant asserts that the court's refusal to order Betancourt to testify denied him a fair trial.

¶ 10 We review a trial court's decision to excuse a witness asserting the privilege against self-incrimination for abuse of discretion. State v. Mills, 196 Ariz. 269, 276, ¶ 31, 995 P.2d 705, 712 (App.1999). We are faced with competing constitutional interests. A defendant has a Sixth Amendment right to compel witnesses to testify whose testimony is material and favorable to the defense. United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982); State v. McDaniel, 136 Ariz. 188, 194, 665 P.2d 70, 76 (1983) (citing Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967)). When a witness asserts a Fifth Amendment right against self-incrimination, the trial court must balance the interests of the defendant with those of the witness. Mills, 196 Ariz. at 276, ¶ 31, 995 P.2d at 712. However, "[i]f the witness validly asserts his Fifth Amendment privilege by showing `a reasonable ground to apprehend danger to the witness from his being compelled to answer,' the defendant's right to compulsory process must yield to the witness's privilege not to incriminate himself." Id. ((citing United States v. Melchor Moreno, 536 F.2d 1042, 1046 (5th Cir.1976)); see State v. Cornejo, 139 Ariz. 204, 208, 677 P.2d 1312, 1316 (App.1983)

; State v. Fisher, 141 Ariz. 227, 243, 686 P.2d 750, 766 (1984)). There is no Sixth Amendment right to compel a witness to testify if the facts support that the witness has properly claimed the Fifth Amendment privilege. United States v. Turkish, 623 F.2d 769, 773-74 (2d Cir.1980),

cert. denied, 449 U.S. 1077, 101 S.Ct. 856, 66 L.Ed.2d 800 (1981). Thus, the determinative issue is whether Betancourt had a valid Fifth Amendment right to assert.

¶ 11 To validly invoke Fifth Amendment rights, a witness must demonstrate a reasonable ground to apprehend danger from being compelled to testify. Mills, 196 Ariz. at 276, ¶ 31, 995 P.2d at 712. A defendant convicted of an offense retains the right against self-incrimination through any direct appeal, until the judgment of conviction is final. See State v. Corrales, 138 Ariz. 583, 587 n. 1, 676 P.2d 615, 619 n. 1 (1983)

; State v. McElyea, 130 Ariz. 185, 187, 635 P.2d 170, 172 (1981); State v. Gretzler, 126 Ariz. 60, 88, 612 P.2d 1023, 1051 (1980).

¶ 12 In State v. Axley, 132 Ariz. 383, 385 n. 1, 388, 646 P.2d 268, 270 n. 1, 273 (1982), the defendant asserted that the prosecutor's unwillingness to grant immunity to the co-defendant (who had pled guilty) resulted in the inability to secure the testimony of this essential defense witness. Id. at 387, 646 P.2d 268, 272. In that case, the court found that because the co-defendant's conviction could have been, and was eventually, appealed, the co-defendant still possessed the right to invoke the Fifth Amendment if called as a witness during defendant's trial. Id. at 388, 646 P.2d at 273. In Mitchell v. United States, 526 U.S. 314, 325, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999), the Court stated, "[w]e reject the position that either petitioner's guilty plea or her statements at the plea colloquy functioned as a waiver of her right to remain silent at sentencing." The Court also stated, "[a]lthough the witness has pleaded guilty to a crime charged but has not been sentenced, his constitutional privilege remains unimpaired." Id. at 326, 119 S.Ct. 1307 (citing J. Wigmore, Evidence § 2279, p. 991, n. 1 (A. Best ed. Supp.1998)); see Axley, 132 Ariz. at 385 n. 1,

388, 646 P.2d at 270 n. 1, 273. And, as noted above, even after sentencing the Fifth Amendment privilege remains throughout any appeal. State v. Politte, 136 Ariz. 117, 122, 664 P.2d 661, 666 (App.1982).

¶ 13 A Rule 32 petition for post-conviction relief is "analogous to a direct appeal for a pleading defendant." Montgomery v. Sheldon, 181 Ariz. 256, 260 n. 5, 889 P.2d 614, 618 n. 5 (1995),supplemented by 182 Ariz. 118, 893 P.2d 1281 (1995). Although procedurally different, a post-conviction relief proceeding is similar to a direct appeal in that both ensure that a defendant is afforded due process of law and both ultimately seek the same relief—a new trial. Id; See State v. Smith, 184 Ariz. 456, 458, 910 P.2d 1, 3 (1996)

(holding that because a Rule 32 petition is analogous to a direct appeal, an indigent defendant is entitled to appointed counsel for an initial post-conviction relief proceeding).

¶ 14 It follows that if a witness' Fifth Amendment privilege survives during a direct appeal, it also survives pending post-conviction relief. See Mitchell, 526 U.S. at 324,

119 S.Ct. 1307 (stating, "[a] waiver of a right to trial with its attendant privileges is not a waiver of the privileges which exist beyond the confines of trial."); Politte, 136 Ariz. at 122,

664 P.2d at 666 ("[T]he privilege granted by the Fifth Amendment applies throughout any appeal.")(emphasis added); Axley, 132 Ariz. at 388,

646 P.2d at 273 (a witness who entered a guilty plea and had the right to appeal his conviction "still possessed the right to invoke the fifth amendment"). Thus, defendant's contention that Betancourt had no Fifth Amendment privilege to assert, because he had pled guilty and had been sentenced, is not well-grounded.

¶ 15 At the time defendant sought to call him to testify, Betancourt still had...

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