State v. Vasquez
| Decision Date | 30 January 2014 |
| Docket Number | No. 2 CA-CR 2012-0312,2 CA-CR 2012-0312 |
| Parties | THE STATE OF ARIZONA, Appellee, v. OREL VASQUEZ, Appellant. |
| Court | Arizona Court of Appeals |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
The Honorable Clark W. Munger, Judge
AFFIRMED IN PART; VACATED IN PART
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Nicholas Klingerman, Assistant Attorney General, Tucson
Counsel for Appellee
John William Lovell, Tucson
Counsel for Appellant
Judge Miller authored the decision of the Court, in which Presiding Judge Vásquez and Chief Judge Howard concurred.
¶1 Orel Vasquez was convicted after a jury trial of first degree murder, first degree burglary, four counts of kidnapping, four counts of armed robbery, four counts of aggravated robbery, five counts of aggravated assault, and four counts of attempted kidnapping. Vasquez argues the following trial court errors occurred: the admission into evidence of an accomplice's plea agreement, improper jury instruction on reasonable doubt, prosecutorial vouching during closing arguments, and errors and inconsistencies in the sentences. For the reasons set forth below, we affirm Vasquez's convictions and sentences in part, and remand for resentencing to address certain sentencing errors. We also vacate the criminal restitution order.
¶2 We view the evidence in the light most favorable to sustaining the jury's verdicts. State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). We also include pertinent procedural matters relevant to Vasquez's arguments on appeal.
¶3 In August 2009, Vasquez, his co-defendant and brother Christian Vasquez, Juan Leon, and two others participated in a home invasion. After demanding marijuana, money, and jewelry from the home's occupants, the armed men left the house and surrounded an approaching car. The men banged on the windshield and attempted to open the driver's door. As the car began to accelerate away from the assailants, one of the men shot and killed the front passenger.
¶4 Approximately two years after the shooting, Vasquez, Christian, and Leon surrendered to law enforcement. Leon entered into a plea agreement whereas Vasquez and Christian proceeded to trial.
¶5 At trial, Leon was questioned extensively about the terms of his plea agreement. The trial court, over Vasquez's objection, admitted Leon's plea agreement, stating "[Leon's] bargain with the State is something that is an issue, and I think the jury needs to see this." During closing argument, the prosecutor rebutted attacks on Leon's credibility, asserting that Leon's testimony was not "bought and paid for" and encouraging the jury to "look at the special terms of [Leon's] plea, because the things that the plea requires is that he testify truthfully or that he not blame anyone that is innocent."
¶6 Vasquez was convicted of all charges and the trial court sentenced him to natural life for first degree murder, with a combination of consecutive and concurrent sentences totaling 189 years' imprisonment for the remaining charges. Vasquez timely appealed his convictions and sentences.
¶7 Vasquez argues that the trial court erred in admitting the special terms section of Leon's plea agreement because such evidence was irrelevant, cumulative, and constituted impermissible vouching. The parties disagree about whether Vasquez specifically objected on grounds of relevance and vouching. The objection was not stated in those specific terms, but Vasquez stated concern about "other verbiage" and the consequences if he did not testify truthfully. This was sufficient to preserve the objections for appellate review. "The admission of evidence is within the trial court's discretion and will not be disturbed absent an abuse of discretion." State v. Davolt, 207 Ariz. 191, ¶ 60, 84 P.3d 456, 473 (2004).
¶8 Vasquez contends that the special terms section of the plea agreement was irrelevant to Leon's credibility or willingness to testify truthfully. "Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Ariz. R. Evid. 401.
¶9 In State v. McCall, 139 Ariz. 147, 159, 677 P.2d 920, 932 (1983), the appellant argued, as Vasquez does here, that a witness's promise in his plea agreement to testify truthfully was irrelevant. Our supreme court rejected this argument, concluding, "[A]ny evidence that substantiates the credibility of a prosecution witness on the question of guilt is material and relevant and may be properly admitted." Id.; see also State v. Thomas, 130 Ariz. 432, 434, 636 P.2d 1214, 1216 (1981). Here, the plea agreement related directly to the credibility of the prosecution's main witness. Thus, the trial court did not err in finding that Leon's plea agreement was relevant evidence. See McCall, 139 Ariz. at 158, 677 P.2d at 931.
¶10 Vasquez further asserts that the trial court erred in admitting Leon's plea agreement because its probative value was outweighed by the risks of unfair prejudice, confusion of the issues, misleading the jury, and needlessly presenting cumulative evidence. We disagree.
¶11 Rule 403, Ariz. R. Evid., provides that "[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." We therefore determine whether Leon's plea agreement satisfied any of the criteria for exclusion under Rule 403.
¶12 As previously noted, Leon's plea agreement was relevant as it concerned the credibility of a prosecution witness. See McCall, 139 Ariz. at 158, 677 P.2d at 931. The plea agreementprovided that the trial court would assess whether Leon had lied only if the state sought to withdraw from the plea agreement. Nothing in the special terms of Leon's plea agreement suggested to the jury that the court already had determined that Leon was truthful; further, there was no argument to the jury that such a determination had occurred. Thus the plea agreement could not be characterized as confusing the issues or misleading the jury. Moreover, Leon's credibility was challenged from the beginning of trial. Finally, we note the record does not support an objection based on needlessly cumulative evidence; but even if properly preserved, the objection is unavailing because the plea represented the most accurate evidence to demonstrate the content of Leon's agreement with the state.
¶13 Vasquez contends the admission of the special terms section coupled with the prosecutor's remarks during closing argument constituted impermissible vouching. "There are 'two forms of impermissible prosecutorial vouching: (1) where the prosecutor places the prestige of the government behind its witness; [and] (2) where the prosecutor suggests that information not presented to the jury supports the witness's testimony.'" State v. King, 180 Ariz. 268, 276-77, 883 P.2d 1024, 1032-33 (1994), quoting State v. Vincent, 159 Ariz. 418, 423, 768 P.2d 150, 155 (1989) (alteration in King).
¶14 Here, as in McCall, vouching of the second type is alleged. 139 Ariz. at 159, 677 P.2d at 932. In McCall, the charge of vouching was based on the prosecutor's eliciting testimony that, pursuant to a plea agreement, the witness promised "[t]o testify truthfully whenever called upon before any State or Federal law enforcement agency." Id. Our supreme court found "nothing improper in this questioning," noting that "[t]he prosecutor did not express any personal opinion regarding the truth of [the witness's] testimony nor did he refer in his questioning or in his closing argument to any information outside the knowledge of the jury." Id.
¶15 Similarly, the prosecutor in this case did not place the prestige of the government behind Leon's testimony by personallyassuring the jury of his veracity, nor did the prosecutor suggest that evidence not presented to the jury supported his testimony. See id.; cf. State v. Vincent, 159 Ariz. 418, 423-24, 768 P.2d 150, 155-56 (1989) (). Rather, the prosecutor directed the jury to examine the contents of Leon's plea agreement, a document admitted into evidence, merely for the purpose of demonstrating that Leon had no motive to testify falsely. Thus, the prosecutor's statements did not amount to improper vouching. See McCall, 139 Ariz. at 159, 677 P.2d at 932; see also United States v. Ricco, 549 F.2d 264, 274 (2d Cir. 1977) ().
¶16 In sum, the trial court did not err in admitting Leon's plea agreement into evidence, and the prosecutor's reference to the special terms section did not constitute vouching.
¶17 Vasquez next contends the trial court erred in instructing the jury on reasonable doubt in accordance with State v. Portillo, 182 Ariz. 592, 898 P.2d 970 (1995). He asserts the Portillo instruction "impermissibly shifts the burden of proof to the defense" and violates his constitutional rights.
¶18 As Vasquez acknowledges, however, our supreme court has repeatedly rejected similar challenges to the instruction Portillo requires. See, e.g., State v. Ellison, 213 Ariz. 116, ¶ 63, 140 P.3d 899, 916 (2006); State v. Dann, 205 Ariz. 557, ¶ 74, 74 P.3d 231, 249-50 (2003); State v. Lamar, 205 Ariz. 431, ...
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