Opinion
No. 1 CA-MH 14-0035 SP
03-12-2015
IN THE MATTER OF REID D.
COUNSEL Maricopa County Office of the Legal Advocate, Phoenix By Sara Xochitl Orozco Counsel for Reid D. Maricopa County Attorney's Office, Phoenix By Margaret Wu Counsel for State of Arizona
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. MS2013-000009
The Honorable Andrew G. Klein, Judge
AFFIRMED
COUNSEL Maricopa County Office of the Legal Advocate, Phoenix
By Sara Xochitl Orozco
Counsel for Reid D.
Maricopa County Attorney's Office, Phoenix
By Margaret Wu
Counsel for State of Arizona
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding Judge John C. Gemmill and Judge Kenton D. Jones joined. KESSLER, Judge:
¶1 Reid D. appeals an order of commitment following a jury determination that he is a sexually violent person ("SVP"). Reid contends the State's comment in closing rebuttal argument that "[Reid] has not demonstrated anything to you," improperly shifted the burden of proof to Reid and relieved the State of proving two of the elements necessary for an SVP determination—that his mental disorder causes him serious difficulty controlling his behavior and makes him highly probable to reoffend. Reid maintains that the jury would not have determined he was an SVP absent the improper statement. For the following reasons we conclude that the comment did not improperly shift the burden of proof to Reid when considered in light of: the broader context of the State's argument; the elements of SVP and evidence presented; Reid's argument; the parties' emphases in argument that the State bears the burden of proof; and the jury instructions. Thus, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 The evidence presented to the jury established that during the previous twenty years, Reid had been convicted around a dozen times for public sexual indecency and indecent exposure to minors under age 15. Reid conceded that he had a conviction for a sexually violent offense as defined by Arizona's SVP law, see Arizona Revised Statutes ("A.R.S.") section 36-3701(6) (2014), and that he had a mental disorder for purposes of that law, see A.R.S. § 36-3701(5). Thus, the focus at trial was whether Reid had serious difficulty controlling his behavior due to his mental illness and whether he was therefore highly probable to reoffend.
In opening statements the prosecutor summarized the criminal history as "six criminal court cases that were felonies . . . nine felony convictions for the crime of public sexual indecency and four felony convictions for the crime of indecent exposure . . . ."
We cite the current version of the applicable statute because no revisions material to this decision have since occurred.
To find that a person is an SVP the State must prove beyond a reasonable doubt that the person has: (a) "been convicted of . . . a sexually violent offense" and "(b) [h]as a mental disorder that makes the person likely to engage in acts of sexual violence." A.R.S. § 36-3701(7). Our supreme court has determined the word "likely," in subsection (b), is "a standard somewhat higher than 'probable,'" and means "highly probable." In re Leon G., 204 Ariz. 15, 23, ¶ 27, 59 P.3d 779, 787 (2002). Therefore, the alleged SVP must be highly probable to reoffend. In addition, and despite the lack of express reference in the statutory text, our supreme court has interpreted Arizona's statutory elements consistent with Kansas v. Hendricks, 521 U.S. 346 (1997), and Kansas v. Crane, 534 U.S. 407 (2002), to require that the State prove the alleged SVP has "serious difficulty in controlling behavior." Leon G, 204 Ariz. at 22, ¶ 21, 59 P.3d at 786; see also id. at 23, ¶ 29, 59 P.3d at 787 (determining statute embodies functional equivalent of phrase "serious difficulty in controlling behavior"); see Hendricks, 521 U.S. at 358-60 (upholding constitutionality of Kansas SVP act despite lack of express language requiring a finding of serious difficulty in controlling behavior).
¶3 During closing argument the State addressed its burden to prove the allegations in the petition: "the State has to prove each one [of the four elements] beyond a reasonable doubt in order for . . . the jury to find that [Reid] is [an SVP]." The State asked the jury to "consider [Reid's] overall history," and urged that "[e]ach piece of that history is a fact [to be evaluated] . . . in light of all the other facts and circumstances . . . ." The State argued that the evidence "demonstrated" that Reid has "serious difficulty controlling his behavior" because "[h]e's reoffended many, many times over the past 20 years. And despite increasing legal sanctions, his behavior has not been deterred." The State further argued the facts established that Reid had treatment and "a plethora of opportunities offered to him" and "[h]e failed each time." The State reiterated its burden to leave the jury firmly convinced that Reid has serious difficulty controlling his behavior and is highly probable to reoffend, which the State urged was "demonstrated by the history in this case."
¶4 Reid argued in closing that "[h]e has changed" over the years and "done everything he can." "He does have control over his behavior. . . . [and] demonstrated [such control] in the last several years in prison." Reid argued that his past pattern of behavior "doesn't mean that he can't stop now." He asserted that "he wants to change. . . . [T]hat's what he wants to do. That's what he has done everything to do, that's what he has demonstrated." Reid argued that the State's case "is all about the horrible past," but that it had "not proved beyond a reasonable doubt" that he has serious difficulty controlling his behavior or a high probability of reoffending. Finally, Reid urged the jury to "consider the evidence and the standards, the instructions" and to "hold the State to that high standard."
¶5 During closing rebuttal, the State explained that it outlined Reid's criminal history for the jury "because it is so important in considering the overall picture of who [Reid] really is." The State maintained "the entirety of this criminal history is important" and "it didn't happen just once" or "just in the [1980's]." The State repeated that "history is important" and that despite all Reid's "desires to rehabilitate, he just hasn't been able to do so." The State argued further "[i]f you . . . look at his overall history, you will see that it wasn't being on probation, it wasn't treatment, it wasn't the fear of returning to court . . . that stopped [Reid] from offending. What stopped [Reid] from offending, at least temporarily, was incarceration." The State then concluded its argument, and, in doing so, made the comment Reid challenges on appeal:
[Reid] has wanted to be law abiding for the past two decades. He continuously and repeatedly throughout his history told presentence report writers that he wanted to stop offending and wanted to figure out why he was doing what he was doing, but he hasn't been able to. . . . [T]hose are stresses . . . and the way that he has dealt with them in the past is by offending. So yes . . . the experts testify that, in general, crime decreases with age. That, in general, people, yes, do change over time. That . . . people's likelihood of reoffending does decrease with age. However, that is in general, it doesn't mean everybody. And most specifically doesn't mean [Reid]. What [Reid] has demonstrated over his history is that he is still sexually attracted to prepubescent females, that he likes to exhibit himself and his genitals in public, and that he can't stop himself, he can't help himself from doing so. He has not demonstrated anything to you. He's completed a treatment program, but he has not demonstrated that he is able to remain law abiding when he is not in a controlled setting, when he is not
incarcerated . . . . All of the evidence which the State asks that you focus on shows that [Reid] is highly probable to commit future acts of sexual violence and has serious difficulty in controlling his behavior because he has demonstrated nothing but that . . . .(Emphases added.) Reid objected on the basis of "[b]urden shifting," which the court summarily overruled.
¶6 Thereafter, the jury was instructed in part:
The State alleges that [Reid] is a 'sexually violent person.' The State has the burden of proving this allegation beyond a reasonable doubt. . . . It must be beyond a reasonable doubt. . . . The State's Petition . . . is not evidence against [Reid]. You must not think that [Reid] is a sexually violent person because of this Petition. [Reid] has denied that he is a sexually violent person. This denial means that the State must prove each element of the sexually violent person statute beyond a reasonable doubt.(Emphases added.)
¶7 In addition to the burden of proof and elements required to determine whether Reid was an SVP, the jury was also instructed regarding direct and circumstantial evidence, and that a lawyer's comments are not evidence. Finally the jury was instructed: "The only matter for you to decide is whether or not the [State] has proven its case according to the instructions [the court has] given you." (Emphasis added.)
¶8 Six of eight jurors determined Reid was an SVP. See State v. Superior Court (Clements), 198 Ariz. 164, 166, ¶ 7, 7 P.3d 970, 972 (App. 2000) ("[A] jury deciding a civil-commitment case brought under [Arizona's SVP] Act shall consist of eight persons in which the concurrence of six or more jurors shall be sufficient to render a verdict."). Reid timely appealed, and we have jurisdiction pursuant to A.R.S. § 12-120.21(A)(1) (2003).
DISCUSSION
¶9 Reid argues that we should reverse the SVP determination because in closing rebuttal argument the State improperly shifted the burden of proof to him when it told the jury "[h]e has not demonstrated anything to you." In isolation, the State's comments provide cause for concern because it is the State's burden to demonstrate that Reid is an SVP, not Reid's burden to demonstrate he is not an SVP. Specifically, as relevant to Reid's claim here, it is the State's burden to prove Reid was highly likely to reoffend because his mental disorder causes him serious difficulty controlling his behavior. See supra n.3.
Reid contends, for the first time in his reply, that this was also a comment on Reid's failure to testify. Reid acknowledges that there is no Fifth Amendment violation because SVP proceedings are not criminal prosecutions. We normally do not consider arguments raised for the first time in a reply brief, State v. Brown, 233 Ariz. 153, 163, ¶ 28, 310 P.3d 29, 39 (App. 2013), and need not here in light of our holding that any error here was harmless beyond a reasonable doubt.
¶10 However, the State's comment was not made in isolation, and, thus, it is necessary to examine the broader context in which it was made in relation to, and with consideration of, Reid's arguments, the evidence presented at trial, the elements of SVP, and the jury instructions. See State v. Christensen, 129 Ariz. 32, 39, 628 P.2d 580, 587 (1981) ("In determining whether the [prosecutor's] argument was improper, the statements must be examined in the context in which they were made."); State v. Hernandez, 170 Ariz. 301, 308, 823 P.2d 1309, 1316 (App. 1991) ("[T]he closing arguments and the jury instructions must be considered together in determining whether the prosecutor's statements constituted fundamental error."); U.S. v. Wilkes, 662 F.3d 524, 539 (9th Cir. 2011) ("[C]ourts should examine rebuttal arguments in the context of the arguments that they rebut." (citing U.S. v. Young, 470 U.S. 1 (1985))); Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir. 1995) (reading prosecutor's argument in isolation "gives pause," but "read in the broader context of the legitimate argument . . . and the even broader context of the repeated and correct explanations of the state's burden to the jury by both the judge and the prosecution" does not undermine the fairness of the trial or constitute a due process violation).
¶11 Here, because Reid conceded that he had a qualifying offense and mental disorder for purposes of the SVP statute, the State's burden, and therefore focus at trial, centered around the need to examine Reid's history to determine whether Reid's mental disorder causes him serious difficulty controlling his behavior and makes him highly probable to reoffend. See In re Leon G., 204 Ariz. 15, 22, ¶ 21, 59 P.3d 779, 786 (2002); In re Commitment of Jaramillo, 217 Ariz. 460, 462, ¶ 6, 176 P.3d 28, 30 (App. 2008). To this end, the State discussed Reid's prior relevant offenses and repeatedly emphasized to the jury that it should consider Reid's history in context of his repeated offenses, treatment, and increasing legal sanctions over a span of years. See supra ¶¶ 3, 5. The State discussed Reid's prior offenses and told the jury that Reid's criminal history is "important in considering the overall picture of who [Reid] really is," and to show "it didn't happen just once" or "just in the [1980's]," and despite Reid's "desires to rehabilitate, he just hasn't been able to do so." Such historical prior act evidence is commonly "used to help demonstrate that the person will likely engage in acts of sexual violence." Jaramillo, 217 Ariz. at 463, ¶ 10, 176 P.3d at 31.
¶12 Conversely, Reid's position at trial was that his past pattern of behavior "doesn't mean that he can't stop now," he has changed and "wants to change," and he now has control over his behaviors as "demonstrated" during his incarceration.
¶13 In rebuttal, the State argued that Reid had not demonstrated the change he claimed to have made and that the only circumstance that prevented him from reoffending was incarceration. The State then argued in succession that Reid: (1) has demonstrated over his history that he is still attracted to prepubescent girls, exhibits himself, and cannot help himself from doing so, (2) "has not demonstrated anything to you"; (3) has not demonstrated he can remain law-abiding despite a desire to not reoffend and increasing legal sanctions; and (4) "is highly probable to commit future acts of sexual violence and has serious difficulty in controlling his behavior because he has demonstrated nothing but that." See supra ¶ 5.
¶14 The general inquiry to determine whether an attorney's closing remarks are prejudicial is: "Do the remarks call to the attention of the jurors matters which they would not be justified in considering in determining their verdict, and were they, under the circumstances of the particular case, probably influenced by these remarks." State v. Sustaita, 119 Ariz. 583, 593-94, 583 P.2d 239, 249-50 (1978) (citation and internal quotation marks omitted); see also State v. Kerekes, 138 Ariz. 235, 239, 673 P.2d 979, 983 (App. 1983) (reiterating "test[] to be applied in determining whether remarks made by the prosecutor should require reversal"). We are mindful that "[i]t does not necessarily follow from the fact of improper argument that the jury was improperly influenced." State v. King, 110 Ariz. 36, 43, 514 P.2d 1032, 1039 (1973).
¶15 Here, even if we determined that the State's comment focused the jury on an improper burden of proof, which we do not, we cannot say that the comment likely influenced the jury under the circumstances of this case, much less, as Reid contends, that the verdict would have been different. Compare Kerekes, 138 Ariz. at 239, 673 P.2d at 983 (determining in the alternative that comment on defendant's silence was harmless error), with State v. Rhodes, 110 Ariz. 237, 238, 517 P.2d 507, 508 (1973) (determining comment on defendant's failure to testify was not harmless error because the "evidence hangs in delicate balance with any prejudicial comment likely to tip the scales in favor of the State"). "Misconduct alone will not cause a reversal, but only where the defendant has been denied a fair trial as a result of the actions of counsel." State v. Hallman, 137 Ariz. 31, 37, 668 P.2d 874, 880 (1983) (determining error did not probably influence jury); see also State v. Jensen, 153 Ariz. 171, 177, 735 P.2d 781, 787 (1987) ("[A]n otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt." (alteration in original) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986))).
¶16 As discussed above, the comment regarding what Reid had not demonstrated was isolated to a specific portion of the State's rebuttal argument and was in direct response to Reid's closing argument claims that he has "demonstrated" changed behaviors and control over his behaviors. See Hernandez, 170 Ariz. at 308, 823 P.2d at 1316 (determining "prosecutor's argument was fair rebuttal to defense counsel's argument" and "did not improperly vouch . . . [or] impermissibly shift the burden of proof to the defendant"); State v. Duzan, 176 Ariz. 463, 468, 862 P.2d 223, 228 (App. 1993) ("[P]rosecutorial comments which are fair rebuttal to comment made initially by the defense are acceptable."); Wilkes, 662 F.3d at 539 (examining rebuttal argument in context of argument it rebuts and determining statements not improper, were invited by defendant, and did not cause prejudice).
¶17 Additionally, the comment was part of the State's legitimate broader argument that historical context is informative and important for the jury to consider when deliberating upon whether Reid had control over his behavior and was highly probable to reoffend. See Jaramillo, 217 Ariz. at 463, ¶¶ 9-10, 176 P.3d at 31 (explaining historical prior act evidence commonly used to help demonstrate the alleged SVP will likely engage in sexually violent acts); Johnson, 63 F.3d at 930 (determining fairness of trial not undermined when prosecutor's argument is read "in the broader context of the legitimate argument . . . and the even broader context of the repeated and correct explanations of the state's burden to the jury by both the judge and the prosecution"). Moreover, any harm from the comment was mitigated by the jury's awareness the State was countering Reid's argument that he had demonstrated change in and control over his behavior. See Young, 470 U.S. at 17-18.
¶18 Apart from the fleeting comment, the State repeatedly told the jury that it, not Reid, had to prove each element of the SVP statute beyond a reasonable doubt. See supra ¶ 3. Reid also emphasized the State's burden of proof in closing argument. See supra ¶ 4. Thereafter, the court correctly instructed the jury as to the elements of SVP, including that the State bears the burden of proof beyond a reasonable doubt, as well as regarding direct and circumstantial evidence, and that lawyer's comments are not evidence. See supra ¶ 7; Hernandez, 170 Ariz. at 308-09, 823 P.2d at 1316-17 (determining no reversible error in part because jury was properly instructed in preliminary and final jury instructions); Johnson, 63 F.3d at 930 (determining fairness of trial not undermined when prosecutor's argument is read in "the even broader context of the repeated and correct explanations of the state's burden to the jury by both the judge and the prosecution"). Our supreme court has held that, in the absence of any reason in the record to conclude otherwise, "we presume the jury followed the instructions." State v. Payne, 233 Ariz. 484, 518, ¶ 151, 314 P.3d 1239, 1273 (2013).
Before presenting evidence to the jury, the State acknowledged its heavy burden more than once during opening statements. The second time the State mentioned its burden, it said: "And the State's burden of proof in this case is beyond a reasonable doubt. It's the highest burden of all the different burdens in the legal system. And the State welcomes that burden, because we are confident that once you hear the facts and the evidence that are about to be presented, you will be firmly convinced that [Reid] meets all of these prongs . . . ."
The jury had already heard the same instructions during preliminary jury instructions.
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¶19 Reid does not address the context in which the State's comment was made. Nor does he explain how it improperly influenced or confused the jury in light of the parties' and court's repeated emphases regarding the State's burden of proof. It is precisely this context, however, that persuades us that the State's comment did not deny Reid a fair trial. We find no error, but even if we did, any error was harmless.
CONCLUSION
¶20 For the reasons stated we find no reversible error warranting a remand for new trial; we affirm the SVP determination.