Opinion
No. 1 CA-CR 13-0447
07-22-2014
STATE OF ARIZONA, Appellee, v. DENNIS DENBESTEN, Appellant.
Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz, Adriana M. Zick Counsel for Appellee By Jeffrey A. James, Flagstaff Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Mohave County
No. S8015CR2012-00575
The Honorable Derek Carlisle, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz, Adriana M. Zick
Counsel for Appellee
By Jeffrey A. James, Flagstaff
Counsel for Appellant
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding Judge John C. Gemmill and Andrew W. Gould joined. KESSLER, Judge:
¶1 Dennis Denbesten ("Denbesten") appeals his conviction for possession of drug paraphernalia, raising claims of prosecutorial misconduct. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
On appeal, we view the evidence in the light most favorable to sustaining the jury's verdict. See State v. Stroud, 209 Ariz. 410, 412, ¶ 6, 103 P.3d 912, 914 (2005).
¶2 In April 2012, the Mohave County Sheriff's Office executed a search warrant at a mobile home in Bullhead City after receiving information from a confidential informant that Pamela Denbesten ("Pamela") was selling methamphetamine out of her home. Officers entered the mobile home into the living area.
¶3 There, Pamela and a man were seated on a small couch in the room. A half wall divided this front part of the living room from a rear portion where Denbesten was seated alone on a second couch. A digital grams scale containing white residue rested on an end table next to the couch where Denbesten was seated. The white residue was secured as evidence and tested positive for methamphetamine.
¶4 The State charged Denbesten with one count of possession of drug paraphernalia, a class 6 felony. At trial, Denbesten argued the scales and the entire residence belonged to Pamela, and because he was estranged from his wife, he was not in constructive possession of the contraband. During closing arguments, Denbesten called into question the credibility of the State's witnesses, the police officers who entered the home, saying they could not recall where Denbesten was in proximity to the scale and drugs when they entered the home. In rebuttal, the State commented that the witnesses "testified truthfully," comparing their testimony to that of another officer who was one of the first officers in the home and saw Denbesten by the scale and drugs. In response to the argument that Denbesten was estranged from Pamela, the State argued "[w]e haven't heard any testimony of that today." Denbesten did not object to either comment.
¶5 After the close of evidence, the court instructed the jury that lawyers' statements in opening and closing arguments are not evidence. Further, it instructed the jury to treat law enforcement testimony "as you would the testimony of any other witness." The jury found Denbesten guilty of possession of drug paraphernalia.
¶6 Denbesten timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") Sections 12-120.21(A)(1) (2003), 13-4033(A)(1) (2010), and 13-4031 (2010).
DISCUSSION
¶7 Denbesten argues the prosecutor committed fundamental, prejudicial prosecutorial misconduct by (1) vouching for the testimony of the law enforcement officers, (2) impugning the integrity of defense counsel, and (3) commenting on the defendant's right to not testify.
I. Standard of Review
¶8 Because Denbesten did not object to the statements he challenges on appeal, this Court's review is limited to fundamental, prejudicial error. State v. Martinez, 230 Ariz. 208, 215, ¶31, 282 P.3d 409, 416 (2012). Fundamental error is "error going to the foundation of the case, error that takes from defendant a right essential to his defense, and error of such magnitude that defendant could not possibly have received a fair trial." State v. Hughes, 193 Ariz. 72, 86, 969 P.2d 1184, 1198 (1998) (quoting State v. Bible, 175 Ariz. 549, 572, 858 P.2d 1152, 1175 (1993)). To obtain relief on fundamental error review, the defendant must also show that the error prejudiced him. State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19-20, 115 P.3d 601, 607 (2005).
Following Denbesten's conviction, the court set a hearing on his release conditions and stated there were reasonable grounds the conviction could be set aside. On May 1, 2013, Denbesten filed a pleading, entitled "Consent to New Trial." In it, Denbesten claimed that, because the trial court indicated potential grounds for a new trial, it constituted a judicial motion for new trial, to which he consented. However, the court then clarified that it had not made a motion for new trial and that it did not view any of the prosecutor's statements as misconduct. Denbesten then moved for a new trial, which the court denied as untimely. Denbesten does not argue on appeal that his motion preserved these issues. In any event, even if he did preserve those issues, it would not affect our decision because we conclude that the comments were either not misconduct or were harmless.
¶9 "Prosecutors have wide latitude in presenting their arguments to the jury . . . . [and are] permitted to argue all reasonable inferences from the evidence, but cannot make insinuations that are not supported by the evidence." State v. Morris, 215 Ariz. 324, 336, ¶ 51, 160 P.3d 203, 215 (2007) (internal quotation marks and citations omitted). Prosecutorial misconduct is conduct that "is not merely the result of legal error, negligence, mistake, or insignificant impropriety, but, taken as a whole, amounts to intentional conduct which the prosecutor knows to be improper and prejudicial." Martinez, 221 Ariz. at 393, 212 P.3d at 85.
¶10 Reversal on the basis of prosecutorial misconduct requires that the misconduct be "so pronounced and persistent that it permeates the entire atmosphere of the trial." State v. Lee, 189 Ariz. 608, 616, 944 P.2d 1222, 1230 (1997) (quoting State v. Atwood, 171 Ariz. 576, 611, 832 P.2d 593, 628 (1992)).
II. Comments About Officer Testimony and Impugning Defense Counsel
¶11 Prosecutorial misconduct can constitute fundamental error. See Hughes, 193 Ariz. at 87, 969 P.2d at 1199 (holding prosecutor's comments in rebuttal concerning defendant's failure to testify constituted fundamental error). "It is black letter law that it is improper for a prosecutor to vouch for a witness." Bible, 175 Ariz. at 601, 858 P.2d at 1204. Impermissible prosecutorial vouching occurs when the prosecutor places the prestige of the government behind its witness, such as personally assuring a witness's veracity, or suggesting that information not presented to the jury supports the witness's testimony, such as remarks that bolster a witness's credibility by reference to matters outside the record. State v. King, 180 Ariz. 268, 276-77, 883 P.2d 1024, 1032-33 (1994). However, a prosecutor's characterization of a witness as truthful that, out of context, appears to place the prestige of the government behind a witness will not be deemed vouching, when that characterization is "sufficiently linked to the evidence." State v. Corona, 188 Ariz. 85, 91, 932 P.2d 1356, 1362 (App. 1997).
¶12 The State did not improperly vouch for officer testimony. Denbesten in closing argument challenged the credibility of the State's law enforcement officers' testimony:
And it had been a year since the police brought this case, and because of the time that's elapsed, Detective Stock didn't recall that there had been a canine involved in the drug sniff. The canine's name was Bingo. And he couldn't definitively say where my client was at the time the cops initially came to the door before everyone was told to lay down. Detective Harris was - - came into the property at some later time, so he also wasn't in a position to observe where my client was right when everybody came through the door. That's the State's red herring.In rebuttal closing, the State remarked:
Now, our - - our officers testified truthfully. They've been honest about what they saw. They're not trying to color it in their favor. They have been honest. If they were further back in the stack, the search warrant stack like Detective Stock was and Detective Harris, well, they'll tell you "Well, by the time we got in there, yeah, he was down on the ground, a space of a couple of seconds.(Emphasis added).
But you heard from Corporal Holdway that he was one of the first two into that house and he saw the defendant on the couch right next to that scale. I mean, it makes sense, ladies and gentlemen, that, you know something was unfolding that fast, that the defendant was in motion. He was following the orders of the officers as they told him to get down on that ground. But initially, just as Corporal Holdway told you, he was on that couch right next to that scale.
¶13 The State's remarks were not improper as they were based on the evidence and directly rebutted Denbesten's allegations about the witness testimony. State v. Trostle, 191 Ariz. 4, 16, 951 P.2d 869, 881 (1997) ("Comments that are invited and prompted by opposing counsel's arguments are not improper if they are reasonable and pertinent to the issues raised."); see also Corona, 188 Ariz. at 91, 932 P.2d at 1362 (stating that "in context," the prosecutor's comment that the police officer testified "truthfully" was not vouching).
¶14 In any event, the State's remarks were not prejudicial because the superior court advised the jury that lawyers' comments are not evidence, and the jury should treat officer testimony the same as any other witness. See State v. Dunlap, 187 Ariz. 441, 463, 930 P.2d 518, 540 (App. 1996) (finding the jury instruction that counsel's arguments are not evidence mitigates the effect of alleged witness vouching). Additionally, juries are presumed to follow the instructions given them, in the absence of indication to the contrary. See State v. Newel, 212 Ariz. 389, 403, ¶ 69, 132 P.3d 833, 847 (2006).
¶15 Denbesten also contends that the above-quoted prosecution's comments on officer testimony impugned the integrity of defense counsel when he questioned the accuracy of the law enforcement officers' testimony at trial. Statements by a prosecutor that impugn the integrity or honesty of opposing counsel are improper. Hughes, 193 Ariz. at 86, 969 P.2d at 1198. A prosecutor may, however, properly criticize defense theories or tactics. United States v. Sayetsitty, 107 F.3d 1405, 1409 (9th Cir. 1997). See also State v. Velazquez, 216 Ariz. 300, 312, 166 P.3d 91, 103 (2007) (holding the state did not impugn the integrity or honesty of defense counsel when comments were not directed at defense attorney). And, as already noted, the prosecutor is entitled to rebut arguments by defense counsel, as long as the rebuttal is based on the evidence and not otherwise improper. See State v. Trostle, 191 Ariz. at 16, 951 P.2d at 881.
¶16 Based on our review, we discern no prosecutorial attack on defense counsel's character or integrity. Rather, in closing, the prosecutor attempted to rehabilitate the State's witnesses in response to doubts raised by defense counsel in their closing. Viewed in context, the prosecutor did not imply that defense counsel had been dishonest.
III. Comments About Defendant's Silence
¶17 Denbesten further claims that the prosecutor improperly commented on Denbesten's right to not testify by stating in closing argument that "we did not hear any testimony today talking about his estrangement from his wife." Both federal and state law prohibit a prosecutor from making any comment, direct or indirect, about a defendant's failure to testify. See U.S. Const. amend. V ("No person . . . shall be compelled in any criminal case to be a witness against himself[.]"); Ariz. Const. art., 2, § 10 (2010) ("No person shall be compelled in any criminal case to give evidence against himself[.]"); A.R.S. § 13-117(B) (2010) ("The defendant's neglect or refusal to be a witness in his own behalf shall not in any manner prejudice him, or be used against him on the trial or proceedings."); see also Griffin v. California, 380 U.S. 609, 613- 14 (1965); State v. Smith, 101 Ariz. 407, 409-10, 420 P.2d 278, 280-81 (1966); State v. Rutledge, 205 Ariz. 7, 12, ¶ 26, 66 P.3d 50, 55 (2003).
¶18 Prosecutorial misconduct in commenting on a defendant's failure to testify can be fundamental error. Hughes, 193 Ariz. at 86-87, 969 P.2d at 1198-99. However,"[w]hether a prosecutor's comment is improper depends upon the context in which it was made and whether the jury would naturally and necessarily perceive it to be a comment on the defendant's failure to testify." Rutledge, 205 Ariz. at 13, ¶ 33, 66 P.3d at 256. "To be constitutionally proscribed, a comment must be adverse; that is, it must support an unfavorable inference against the defendant and, therefore, operate as a penalty imposed for exercising a constitutional privilege." State v. Mata, 125 Ariz. 233, 238, 609 P.2d 48, 53 (1980). To be improper, the comment must be aimed at having the jury naturally and necessarily perceive the comment to be on the defendant's failure to testify. Rutledge, 205 Ariz. at 14, ¶ 38, 66 P.3d at 257.
¶19 The prosecutor may properly comment upon the defendant's failure to present exculpatory evidence, so long as the comment is not phrased to call attention to the defendant's own failure to testify. State v. Fuller, 143 Ariz. 571, 575, 694 P.2d 1185, 1189 (1985) (citing United States v. Soulard, 730 F.2d 1292, 1306 (9th Cir. 1984); State v. Pierson, 102 Ariz. 90, 425 P.2d 115 (1967) (holding it was not error to draw attention to the lack of evidence on a point if it is not intended to draw attention to the defendant's failure to testify); State v. Byrd, 109 Ariz. 10, 503 P.2d 958 (1972) (holding that when a victim recounts about two men robbing him and the only three people present were the victim, the defendant and his co-defendant, a comment that no one contradicted the victim's evidence was not improper). But see State v. Decello, 113 Ariz. 255, 258, 550 P.2d 633, 636 (1976) (concluding that the prosecutor's statement "[n]o one, no one, no one got up on this stand and testified to the contrary" constituted fundamental error). An exception to this rule occurs when it appears that the defendant is "the only one who could explain or contradict the state's evidence." State v. Blackman, 201 Ariz. 527, 544-46, ¶¶ 72-75, 38 P.3d 1192, 1209-10 (App. 2002) (holding that a statement that no one who was present at the scene contradicted victim's testimony was not improper because other witnesses could have testified). If the prosecutor makes general comments about the defendant not offering evidence on an issue and it is clear that such evidence could have been provided by witnesses other than the defendant, there was no improper comment. See Langford v. United States, 178 F.2d 48, 55 (9th Cir. 1949) ("And, except in those special cases where it appears that the accused himself is the only one who could possibly contradict the government's testimony, the prosecutor may properly call attention to the fact that the testimony of the government witnesses has not been contradicted."). It is a comment that directs the jury's attention to a defendant's failure to take the witness stand that normally will constitute fundamental error. State v. Arredondo, 111 Ariz. 141, 143, 526 P.2d 163, 165 (1974).
¶20 In closing arguments, Denbesten submitted that the State did not prove Denbesten's guilt in part because the mobile home was Pamela's and he was estranged from her. In closing, the State replied:
Now, ladies and gentlemen, I caution you before you consider any of this - - any of what defense counsel said about estrangement from his wife, he mentioned it in his opening and closing, but we did not hear any testimony today talking about his estrangement from his wife. That's really not evidence here for you to consider.(Emphasis added).
You heard that he was married to Pamela Denbesten. You heard that there was a lot of his clothing there, there was [sic] a lot of boxes of his pictures, but you never heard anyone get up there and tell you that he was estranged from his wife. Now that would be very convenient for the defendant, but we haven't heard any testimony of that today.
¶21 Here, the prosecutor's comments were not improper. The prosecutor did not state that Denbesten did not testify; he stated that no one testified about the estrangement. In opening arguments, Denbesten submitted that he was estranged from his wife, Pamela. In closing, the prosecutor pointed the jury's attention to Denbesten's failure to present the exculpatory evidence of Denbesten's estrangement from Pamela. This did not draw attention to Denbesten's failure to take the stand, as knowledge of the estrangement was not exclusively with Denbesten. Namely, the knowledge could be with Pamela or the other three individuals arrested in the incident leading to this trial.
¶22 Finally, we do not find multiple errors, therefore we reject Denbesten's suggestion that the cumulative effect of the alleged misconduct so infected the proceedings that he was denied a fair trial. See Hughes, 193 Ariz. at 79, 969 P.2d at 1191 (stating doctrine of cumulative error applies to claims of prosecutorial misconduct).
CONCLUSION
¶23 For the foregoing reasons, we affirm Denbesten's conviction and sentence.