State v. Valdez, CR-87-0355-AP
| Decision Date | 31 January 1989 |
| Docket Number | No. CR-87-0355-AP,CR-87-0355-AP |
| Parties | STATE of Arizona, Appellee, v. Antonio Escarsega VALDEZ, Appellant. |
| Court | Arizona Supreme Court |
Robert K. Corbin, Atty. Gen. by William J. Schafer III and Diane M. Ramsey, Asst. Attys. Gen., Phoenix, for appellee.
Harold L. Higgins, Jr., Pima County Public Defender, and Charles L. Weninger, Tucson, for appellant.
Defendant, Antonio E. Valdez, appeals from a jury verdict and judgment of guilty to aggravated assault, a dangerous offense committed while he was on parole for a prior felony conviction. A.R.S. § 13-1204(A)(2) and (B). Defendant was sentenced to a term of twenty-five years to life to be served consecutively to a sentence imposed in another matter. A.R.S. § 13-604.02(A). We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. §§ 13-4031 and -4033.
We must answer the following questions on appeal:
1. Was the evidence sufficient to support the conviction?
2. Was the defendant's right to confrontation violated?
3. Did the prosecutor make improper and prejudicial comments in closing argument?
4. Was defendant's counsel ineffective?
On 14 March 1987, Danny Butierrez held a going-away party at the Tucson Inn for his long-time friend, Thomas Griggs. Present at the party besides Butierrez and Griggs were Jennifer Almli, Butierrez' girl friend; the defendant, a friend and co-worker of Butierrez; and William Davis, the victim. At some time during the evening after everyone had been drinking heavily, the defendant and Davis got into an argument over what defendant perceived as Davis' advances towards Almli. Neither Almli nor her boyfriend, Butierrez, was concerned about this, but the defendant took it upon himself to confront Davis by demanding that Davis leave. When Davis refused, defendant grabbed him and held a knife to his throat producing a small cut on his neck. Davis then went out of the room followed by defendant. The defendant soon returned and cut Griggs on his finger. Defendant gave his knife to Butierrez, who gave it to Griggs, who threw it across the road.
Meanwhile, Davis had called the police. The defendant ran when two policemen arrived. One officer pursued the defendant while the other spoke to Griggs. They retrieved the knife which revealed no recognizable fingerprints. Defendant was apprehended in the bathroom of one of the hotel rooms. The officers described Davis as upset and excited. Butierrez and Almli testified at trial, and both were impeached with prior inconsistent statements. Butierrez had made the prior statements to exonerate the defendant, and Almli had done so to avoid testifying at trial. Almli ultimately confirmed Griggs' version of the altercation. She testified that she thought defendant was trying to scare Davis.
The defendant took the stand and testified on his own behalf. He claimed he grabbed Davis only after Davis hit him in the eye. He denied pulling a knife on Davis and denied injuring either Davis or Griggs. From a jury verdict and judgment of guilt, defendant appeals. We affirm.
Defendant first contends that the state failed to prove an essential element of the offense, namely that the victim was reasonably apprehensive of imminent physical injury.
To be guilty of aggravated assault with a deadly weapon,
the defendant need only intentionally act using a deadly weapon or dangerous instrument so that the victim is placed in reasonable apprehension of imminent physical injury.
State v. Morgan, 128 Ariz. 362, 367, 625 P.2d 951, 956 (Ct.App.1981), vacated on other grounds, In re Pima County Juvenile Action No. 5-78539-2, 143 Ariz. 254, 693 P.2d 909 (1984); see also State v. Torres, 156 Ariz. 150, 153, 750 P.2d 908, 911 (Ct.App.1988) ().
Defendant contends, however, that without the victim's testimony that he was placed in "reasonable apprehension of imminent physical injury," a conviction may not be obtained. We do not agree.
When fear or apprehension are elements of an offense, testimony of the victim that he was actually afraid or apprehensive is not required; that element of the crime can be established by circumstantial evidence.
State v. Angle, 149 Ariz. 499, 504, 720 P.2d 100, 105 (Ct.App.1985), vacated in part on other grounds, 149 Ariz. 478, 720 P.2d 79 (1986).
The circumstantial evidence herein is more than sufficient to show the required fear. In fact, it would stretch our credibility to the breaking point were we to find that a knife held to the throat followed by a cut on the neck did not produce fear and apprehension on the victim's part. We find no error.
At trial, Davis, the victim, did not testify. Over defendant's objections, the trial court allowed an investigator to testify that he had been trying unsuccessfully to serve Davis with a subpoena for four months prior to trial. The investigator asserted that Davis was not present to testify at trial because he was unaware of the trial date because he had not been served with a subpoena.
At trial the following occurred before the judge BY MR. LAURITZEN: [for the State] Well, and the question I think both of us want answered in a different way is whether or not my putting McDonald on and asking him what efforts or asking him whether he made efforts to find Davis opens the door to the fact that one of the primary ways that were used to find Mr. Davis was following down the leads that were created by his arrest the day after.
I mean that it seems to me is not really probative of anything and clearly prejudicial now we get to hear about an arrest.
And his testimony would probably clearly show the jury that he followed up leads that resulted from the arrest the following day.
Reporter's Transcript (RT), Oct. 6, 1987, at 80-81.
Defendant first contends that the failure of the state to present the victim violated the defendant's right under the sixth amendment of the United States Constitution and article 2, § 24 of the Arizona Constitution. These provisions guarantee criminal defendants the right to confront their accusers. State v. Robinson, 153 Ariz. 191, 203, 735 P.2d 801, 813 (1987). We do not agree with the defendant that the victim had to be present.
As noted by the Minnesota Supreme Court:
The victim in this case left the state and returned to Alabama, where he was from, shortly after he was released from the hospital, and he could not be located for trial. However, two witnesses, who had never met either defendant or the victim before the day in question, both gave testimony which sufficiently supported the jury's finding that defendant stabbed the victim with a screwdriver and that the attack was not in self-defense. The state did not introduce any hearsay statement of the victim nor was it responsible for the victim's being unavailable, and therefore no Sixth Amendment issue is raised. There is no reason to believe that the victim's testimony would have been favorable to defendant and defendant's contention that he was prejudiced by the victim's absence is not borne out by our examination of the record. In fact, defense counsel attempted to use the victim's absence to defendant's advantage in closing argument.
State v. Salazar, 289 N.W.2d 753, 754-55 (Minn.1980); see also State v. Rivet, 291 N.W.2d 401, 402 (Minn.1980).
There is no evidence that the state was responsible for the victim's absence, and the evidence indicates that the state made a good faith effort to find the victim. We find no sixth amendment violation of defendant's right to confrontation.
Next, the defendant claims that the court erred in prohibiting defendant from showing that the victim had been arrested. We do not agree. Had the victim appeared, he could have been impeached by a prior conviction, but not by a prior arrest which resulted in a dismissal. Defendant could not have brought the fact of the arrest to the jury's attention had the victim been present and could not do any differently in the victim's absence. We find no error.
Defendant next contends that the prosecutor was guilty of improper closing remarks. During closing argument defense counsel stated:
And when you compare the testimony with the law and instructions given to you, I'm confident you'll come back with a verdict of not guilty at least as to the aggravated assault.
I can almost concede a much easier task of finding the lesser-included offense. But as to the aggravated assault, it might have been a little different if Mr. Griggs were here--Mr. Davis were here, might have been a whole lot easier for the State to prove their case. But as it is now, he's not here and they've not done it.
In response, the prosecutor stated:
I want to first...
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