State v. Vargas

• Decision Date: 17 May 2021
• Docket Number: No. 2 CA-CR 2016-0324,2 CA-CR 2016-0324
• Citation: 486 P.3d 214,251 Ariz. 157
• Parties: The STATE of Arizona, Appellee, v. Luis Armando VARGAS, Appellant.
• Court: Arizona Court of Appeals

251 Ariz. 157

486 P.3d 214

The STATE of Arizona, Appellee,

v.Luis Armando VARGAS, Appellant.

No. 2 CA-CR 2016-0324

Court of Appeals of Arizona, Division 2.

Filed May 17, 2021

Mark Brnovich, Arizona Attorney General, Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals, By Amy M. Thorson, Assistant Attorney General, Tucson, Counsel for Appellee

Joel Feinman, Pima County Public Defender, By Erin K. Sutherland, Assistant Public Defender, Tucson, Counsel for Appellant

Vice Chief Judge Staring authored the opinion of the Court, in which Chief Judge Vásquez and Judge Brearcliffe concurred.

STARING, Vice Chief Judge:

¶1 This case comes to us on remand from our supreme court. State v. Vargas , 249 Ariz. 186, ¶ 25, 468 P.3d 739 (2020), vacating State v. Vargas , No. 2 CA-CR 2016-0324, 2019 WL 366444 (Ariz. App. Jan. 29, 2019) (mem. decision). The sole question before us is whether Vargas has established that several unobjected-to instances of prosecutorial error or misconduct cumulatively deprived him of a fair trial. Id. ¶¶ 3, 15, 25. For the reasons that follow, we affirm.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to sustaining the jury's verdicts and resolve all reasonable inferences against Vargas. See State v. Murray , 247 Ariz. 583, ¶ 2, 454 P.3d 1018 (App. 2019). K.R. was a sixty-two-year-old woman who had been disabled by childhood polio and lived alone.¹ On the evening of February 14, 2008, she telephoned her mother, and the next morning, her sister went to her home to check on her. Her sister found: K.R.’s turquoise-colored van and keys missing; the security door and front door closed but unlocked; K.R.’s crutches near the front door; her purse on the floor; a space heater overturned and its cord missing; the kitchen phone cord missing; and K.R.’s eyeglasses and leg braces next to her bed. K.R.’s sister immediately called the police and reported K.R. missing. Officers commenced an extensive search for her.

¶3 That same morning, before K.R.’s sister discovered she was missing, a security camera recorded a man, later identified by eyewitnesses and relatives as Vargas, driving up to an automatic teller machine (ATM) in a turquoise van and unsuccessfully attempting to use K.R.’s bank card. An hour later, Vargas went to the door of an AutoZone store in the same shopping center as the ATM and asked for help with his vehicle. Two hours later, Vargas went to a Checker's auto-parts store located across the street from AutoZone and asked for help with what he said was his girlfriend's van. One of the Checker's employees followed Vargas to a turquoise van parked outside and attempted to help him start it, without success.

¶4 Shortly thereafter, Vargas walked to a gas station across the street from the Checker's store and purchased $1.00 of gasoline. A Checker's employee later saw smoke billowing from the same turquoise van, which had been left outside the store.

¶5 Investigators determined the van belonged to K.R. and gasoline had been poured on the back seat and ignited. Inside the van, investigators found the missing cord from the overturned space heater in K.R.’s home. Vargas's fingerprints were found on the overturned space heater, and eyewitnesses and family members identified him as the man with the turquoise van who had tried to use K.R.’s bank card at the ATM, sought help at both auto-parts stores, and purchased $1.00 of gasoline at the gas station. K.R. was never found.

¶6 After a jury trial, Vargas was convicted of first-degree murder, second-degree burglary, kidnapping, arson of a structure, theft of a means of transportation, and theft of a credit card. The trial court sentenced him to life in prison without the possibility of release for the murder and an additional 63.25 years for the other offenses.

¶7 On appeal, Vargas challenged his convictions and sentences, arguing eleven instances of prosecutorial misconduct, all involving multiple acts, had cumulatively deprived him of a fair trial. In our previous decision, we addressed portions of his claims that the state had committed prosecutorial misconduct in questioning an expert witness about precluded topics, "attacking" defense counsel in its rebuttal closing, and seeking admission of a jail video on their merits and found no error. Vargas , No. 2 CA-CR 2016-0324, ¶¶ 14-19, 28–30, 33–35. And, because Vargas failed to develop two of his arguments on appeal, we found those arguments waived pursuant to State v. Bolton , 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995). Vargas , No. 2 CA-CR 2016-0324, ¶¶ 11, 41. However, citing State v. Moreno-Medrano , 218 Ariz. 349, ¶ 17, 185 P.3d 135 (App. 2008), we concluded Vargas's failure to separately argue fundamental error for each allegation of unobjected-to misconduct constituted waiver of his remaining prosecutorial misconduct claims. Vargas , No. 2 CA-CR 2016-0324, ¶¶ 13, 14, 20, 21, 22–25, 27, 32, 39, 40, 42. After addressing Vargas's other arguments—that the trial court had erred in precluding testimony of an expert witness as a sanction for a disclosure violation, admitting expert testimony from non-experts and prejudicial testimony from a pretrial services worker, and instructing the jury on accomplice liability—we affirmed his convictions and sentences. Id. ¶¶ 43 –64.

¶8 Vargas petitioned our supreme court for review of our decision, and that court granted review solely as to whether Vargas had "preserv[ed] fundamental error review for individual claims of prosecutorial misconduct by arguing that cumulative instances of ... misconduct constituted fundamental error." Concluding Vargas was not required to have argued "that each instance of alleged misconduct individually deprived him of a fair trial," the court vacated our decision as to Vargas's cumulative error claim and directed us to consider the claims we had found waived pursuant to Moreno-Medrano . Vargas , 249 Ariz. 186, ¶¶ 7, 14, 15, 25, 468 P.3d 739. On remand, we must determine "[w]hether Vargas has carried his burden of persuasion to establish that [error] did occur for each allegation and that they cumulatively denied him a fair trial." Id. ¶ 15.

Discussion

¶9 Vargas reasserts his prosecutorial error claims,² arguing they cumulatively amounted to fundamental, prejudicial error and deprived him of his right to a fair trial.³ In addition, he now argues each individual claim constituted fundamental error. To succeed on a claim of prosecutorial error, a defendant must show that error indeed occurred and that there is a "reasonable likelihood ... that the [error] could have affected the jury's verdict, thereby denying defendant a fair trial." In re Martinez , 248 Ariz. 458, ¶ 43, 462 P.3d 36 (2020) (quoting State v. Hulsey , 243 Ariz. 367, ¶ 89, 408 P.3d 408 (2018) ). After "evaluat[ing] each instance of alleged misconduct," State v. Morris , 215 Ariz. 324, ¶ 47, 160 P.3d 203 (2007), we consider the cumulative effect on the fairness of Vargas's trial, see State v. Hughes , 193 Ariz. 72, ¶ 26, 969 P.2d 1184 (1998).

¶10 As noted in our previous decision, Vargas did not properly object to any of the following alleged instances of prosecutorial error, and we review his claims solely for fundamental error. See State v. Escalante , 245 Ariz. 135, ¶ 12, 425 P.3d 1078 (2018). "[T]he first step in fundamental error review is determining whether trial error exists." Id. ¶ 21. A defendant who establishes error must then show "the error went to the foundation of the case," took from him a right essential to his defense, or was so egregious that he could not possibly have received a fair trial. Id. If a defendant only shows an error went to the foundation of the case or deprived him of a right essential to his defense, then he must also separately show prejudice resulted from the error. Id. If a defendant shows the error was so egregious he could not have received a fair trial, however, he has necessarily shown prejudice and must receive a new trial. Id. "Consistent with the third prong of Escalante , a defendant claiming cumulative error based on prosecutorial misconduct need not separately assert prejudice since a successful claim necessarily establishes the unfairness of a trial." Vargas , 249 Ariz. 186, ¶ 13, 468 P.3d 739.

Opening Statement

¶11 Vargas first asserts prosecutorial error occurred when the state, in its opening statement, improperly "argue[d] inferences and conclusions, unsupported by evidence that would be presented." Specifically, he contends the state "discuss[ed] evidence that was never proffered regarding the extent of the investigation and the even ridiculous sounding leads that detectives ran down." Vargas maintains the state used this improper argument to rebut his claim "that law enforcement's shoddy investigation focused on [him] to the exclusion of others," "lessen[ing] its requisite burden ... and ... invit[ing] the jury to draw inferences and conclusions from that evidence to prove facts the defense disputed."

¶12 During its opening statement, the state addressed the jury as follows:

[Y]ou are going to hear from literally dozens of witnesses, and there are absolutely going to be some complications and some questions that we can't answer.... There were lots of people who came forward. If you have an investigation of this scope and of this length, people come out of the woodwork. Some people think that they are receiving information through psychic powers literally. Some people think that they know a guy who kind of looks like that person, and they observe something suspicious, and they're going to share that with the police. And the police did their best to follow all of those leads. A lot of names came up. The police investigated a lot of names.

As an example of one such lead, the state noted police had found identification for "a man named Nicholas Halula ... in front of a mobile home [in K.R.’s neighborhood]. And even though it was found in front of ... the front door to a mobile home...