State v. Terrazas

• Decision Date: 17 May 2013
• Docket Number: 2 CA-CR 2011-0341
• Parties: THE STATE OF ARIZONA, Appellee, v. ESTEBAN JAVIER TERRAZAS, Appellant.
• Court: Arizona Court of Appeals

THE STATE OF ARIZONA, Appellee, v. ESTEBAN JAVIER TERRAZAS, Appellant.

2 CA-CR 2011-0341

COURT OF APPEALS STATE OF ARIZONA DIVISION TWO DEPARTMENT B

FILED: May 17, 2013

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Not for Publication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. CR20100580001

Honorable Jane L. Eikleberry, Judge

AFFIRMED IN PART; VACATED IN PART

Thomas C. Horne, Arizona Attorney General

By Joseph T. Maziarz and Alan L. Amann

Tucson

Attorneys for Appellee

Isabel G. Garcia, Pima County Legal Defender

By Robb P. Holmes

Tucson

Attorneys for Appellant

VÁSQUEZ, Presiding Judge.

¶1 After a jury trial, Esteban Terrazas was convicted of manslaughter, a class-two felony, and sentenced to a presumptive prison term of 10.5 years. On appeal, Terrazas argues the trial court erred by: (1) denying his pretrial motion to dismiss on grounds of prosecutorial misconduct; (2) denying his request for a Willits¹ instruction; (3) granting the state's motion to preclude evidence of a witness's possession and use of drugs; and (4) permitting the state to conduct improper cross-examination. For the reasons that follow, we affirm the conviction and sentence but vacate the court's criminal restitution order.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to sustaining the conviction. See State v. Miles, 211 Ariz. 475, ¶ 2, 123 P.3d 669, 670 (App. 2005). Late one evening in October 2009, Terrazas went to R.M.'s house in Tucson to settle a dispute. When Terrazas went inside, R.M. and his girlfriend, A.T., were sitting on a couch in the living room. According to A.T., Terrazas walked over to R.M. and said, "Why are you texting me all the fucked-up text messages." After a heated verbal exchange, Terrazas said, "I have got something for you," and suggested that they "take it outside." R.M. then "jumped up" and pushed Terrazas into the kitchen. A.T. heard a commotion, and, as she got up to go into the kitchen, she heard gunshots. As she grabbed R.M. and pushed him toward the couch, Terrazas walked "back into the living room and shot [R.M.] again."

¶3 After Terrazas left the house, A.T. went outside and screamed for a neighbor to call 9-1-1. When officers arrived, they found R.M. lying on the couch bleeding and A.T. straddling him, trying to render assistance. Officers discovered three nine-millimeter shell casings on the living room floor that were determined to have been fired from the same gun. An autopsy revealed R.M. had a total of five gunshot wounds to his left hand, both arms, and chest, including one fatal gunshot that perforated his aorta and lungs. The medical examiner testified that the three bullets recovered from R.M.'s body could have caused all five wounds.

¶4 Terrazas was charged with first-degree murder and aggravated assault. At his first trial, he was acquitted of aggravated assault, but, because the jury was unable to reach a verdict on the charge of first-degree murder, the trial court declared a mistrial as to that charge. At a second trial, the jury found Terrazas not guilty of first-degree murder but guilty of the lesser-included offense of manslaughter. The court sentenced him as described above, and this appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Discussion

Prosecutorial Misconduct

¶5 Before his second trial, Terrazas moved the trial court to reconsider its denial of his motion for a mistrial and to dismiss the case because of prosecutorial misconduct during his first trial.² Terrazas claimed that, in the first trial, the prosecutorwillfully violated the court's order precluding the state from introducing evidence that he previously had sold methamphetamine to the victim. And he argued principles of double jeopardy barred retrial. The court denied the motion, and the case proceeded to trial.

¶6 On appeal, Terrazas argues the trial court erred in denying his "motion to dismiss based on intentional prosecutorial misconduct during the first trial." He contends "[t]he failure to do so violated his rights to be protected from double jeopardy under the state and federal constitutions." We review for an abuse of discretion a trial court's decision whether to dismiss an indictment on double jeopardy grounds. Miller v. Superior Court, 189 Ariz. 127, 129, 938 P.2d 1128, 1130 (App. 1997). But, "[w]hether double jeopardy bars retrial is a question of law, which we review de novo." State v. Moody, 208 Ariz. 424, ¶ 18, 94 P.3d 1119, 1132 (2004).

¶7 The double jeopardy clauses of the state and federal constitutions protect a criminal defendant from multiple prosecutions for the same offense.³ See Ariz. Const. art. II, § 10; U.S. Const. amend. V; see also State v. Minnitt, 203 Ariz. 431, ¶ 27, 55 P.3d 774, 780 (2002). "As a general rule, if the defendant successfully moves for or consentsto a mistrial, retrial is not barred on double jeopardy grounds." Minnitt, 203 Ariz. 431, ¶ 28, 55 P.3d at 780. But, in Pool v. Superior Court, 139 Ariz. 98, 108-09, 677 P.2d 261, 271-72 (1984), our supreme court held that double jeopardy will bar a retrial if (1) a mistrial was granted on grounds of improper conduct by the prosecutor, (2) the conduct was "not merely the result of legal error, negligence, mistake, or insignificant impropriety, but, taken as a whole, amount[ed] to intentional conduct which the prosecutor kn[e]w[] to be improper and prejudicial, and which he pursue[d] for any improper purpose with indifference to a significant resulting danger of mistrial or reversal," and (3) the prosecutor's conduct caused prejudice that could be cured only by a mistrial. The prosecutor's conduct must be "so egregious that it raises concerns over the integrity and fundamental fairness of the trial itself." Minnitt, 203 Ariz. 431, ¶ 30, 55 P.3d at 781.

¶8 Citing the first factor articulated in Pool, the state argues Terrazas has not preserved this issue for our review because he failed to timely move for a mistrial in the first trial. Terrazas contends that his motion to preclude evidence of a methamphetamine sale "was sufficient to preserve the error for review because the motion is deemed to be the objection." We disagree. While it is true that a "previously made motion to preclude particular testimony preserves the issue for appeal, even if there is no objection contemporaneous to the challenged testimony," State v. Bolton, 182 Ariz. 290, 306 n.5, 896 P.2d 830, 846 n.5 (1995), this applies only when a trial court denies a motion to preclude and the defendant challenges the admission of the evidence on appeal, see State v. Sharp, 193 Ariz. 414, ¶ 22, 973 P.2d 1171, 1178 (1999). Terrazas has cited noauthority for the proposition that the issue is preserved where, as here, the trial court granted the defendant's motion to preclude and the state allegedly violated the court's order without objection.

¶9 In order to preserve a double jeopardy claim based on prosecutorial misconduct, a defendant generally must move for a mistrial in a timely manner.⁴ Moody, 208 Ariz. 424, ¶ 21, 94 P.3d at 1133; see also State v. Jorgenson, 198 Ariz. 390, ¶ 7, 10 P.3d 1177, 1179 (2000) (defendant has same constitutional protection if motion for mistrial granted or denied). And a motion for a mistrial based upon prosecutorial misconduct during closing argument "must be lodged either during the final argument of opposing counsel or at the completion of the final argument." State v. Evans, 88 Ariz. 364, 371, 356 P.2d 1106, 1110 (1960); see also State v. Smith, 126 Ariz. 534, 535, 617 P.2d 42, 43 (App. 1980). The purpose of this rule is to allow the trial court to "instruct the jury to disregard the comments." Evans, 88 Ariz. at 371, 356 P.2d at 1110; see also Moody, 208 Ariz. 424, ¶ 124, 94 P.3d at 1151 (failure "to lodge a specific, contemporaneous objection" deprived court of opportunity to correct error with "immediate curative instruction"). Because Terrazas waited until the jury retired to begin deliberations before requesting a mistrial, the trial court did not err in finding he had "waived any presumed error by failing to object during closing arguments and giving the [c]ourt a real opportunity to address the matter."

¶10 Even if the issue had been preserved properly, it is without merit in any event. As we have noted, before the first trial, the court granted Terrazas's motion to preclude any evidence that he previously had sold methamphetamine to R.M. At that trial, Terrazas testified he had fixed R.M.'s computer and R.M. was angry because the computer was not working. During cross-examination of Terrazas, the prosecutor asked the court to clarify its ruling on the motion to preclude. The court explained that he could ask Terrazas "whether th[e] fight was about drugs" but could not elicit such testimony from A.T. Without objection, the prosecutor then asked Terrazas, "Isn't it true that you were mad at [R.M.] because you [had] sold him methamphetamine—and he thought that you had shorted him?"; Terrazas answered, "No."

¶11 And during his rebuttal closing argument, the prosecutor made the following comment:

I told you at the beginning of the case that you may not find out what this is about, what this fight is about. But you get to consider it and think what makes the most sense. Does it make sense that this man fixed his computer and that [R.M.] suddenly kind of went berserk. . . .

. . . .

Now is that credible? Or, or is it more likely that [Terrazas] sold some drugs to [R.M., and R.M.] is upset about it because he thinks he has gotten shorted.

¶12 Even assuming, without deciding, that the prosecutor's conduct was improper, it did not constitute intentional misconduct that he knew to be "improper and prejudicial" and nevertheless pursued for an "improper purpose with...