Opinion
No. 1 CA-CR 11-0270
02-07-2012
STATE OF ARIZONA, Appellee, v. IRWING GONZALEZ-GUTIEREZ, Appellant.
Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Linley Wilson, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Christopher V. Johns, Deputy Public Defender Attorneys for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24DEPARTMENT E
MEMORANDUM DECISION
(Not for Publication - Rule 111, Rules of the Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2009-156738-001 DT
The Honorable Cari A. Harrison, Judge
REVERSED AND REMANDED
Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Linley Wilson, Assistant Attorney General Attorneys for Appellee
Phoenix
James J. Haas, Maricopa County Public Defender By Christopher V. Johns, Deputy Public Defender Attorneys for Appellant
Phoenix JOHNSEN , Judge
¶1 This appeal was filed in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), following Irwing Gonzalez-Gutierez's convictions of three counts of kidnapping, Class 2 dangerous felonies, and one count of human smuggling, a Class 4 felony. After searching the record on appeal and finding no arguable question of law that was not frivolous, Gonzalez-Gutierez's counsel filed a brief in accordance with Anders and Leon, asking this court to search the record for fundamental error. Gonzalez-Gutierez was given the opportunity to file a supplemental brief but did not do so.
¶2 This Court's subsequent review of the record revealed statements by the prosecutor during rebuttal closing argument that may have amounted to fundamental error. Pursuant to Penson v. Ohio, 488 U.S. 75 (1988), we ordered the parties to brief whether these statements constituted impermissible vouching or improper comment on Gonzalez-Gutierez's failure to testify at trial. For the reasons that follow, we reverse and remand.
FACTS AND PROCEDURAL HISTORY
¶3 According to the evidence at trial, a group of individuals who lacked immigration documents entered the United States with the help of persons colloquially known as "coyotes," whom the immigrants paid to assist with the journey. Upon their arrival, the migrants were taken to a "drop house" in Phoenix, where they were ordered to take off their shoes and were confined to a back room. The coyotes then demanded more money from the migrants in exchange for their release. The coyotes forced the migrants to call their relatives and ask for money; when the relatives could not pay, the coyotes threatened the migrants.
¶4 Gonzalez-Gutierez was at the house when the migrants arrived, assisted the coyotes in making the phone calls and assaulted a migrant who tried to escape. Gonzalez-Gutierez's co-defendant, Euriel Velles Camacho, assisted the coyotes in making the calls and by making food for the captives. According to the indictment, these events occurred on or about August 27, 2009. One of the migrants eventually used a concealed cell phone to call for help. When police arrived, the coyotes and Gonzalez-Gutierez tried to run away.
¶5 At trial, the defense maintained that while Gonzalez-Gutierez and Camacho helped the coyotes, they did so under duress. Camacho testified that like the other migrants, he came to the United States with the aid of coyotes and similarly was threatened for more money upon his arrival. Camacho testified that when his relatives could not pay, the coyotes threatened to kill him and forced him to assist them at the drop house. Camacho feared the coyotes would hurt him or his family in Mexico, so he followed their orders.
¶6 Gonzalez-Gutierez did not testify, but he called two witnesses who testified that shortly before the events at issue, they received calls demanding ransom in exchange for his release. The first witness, Gonzalez-Gutierez's former lover, testified a Spanish-speaking man telephoned her on or about August 19, 2009, told her Gonzales-Gutierez was being held in a house in Arizona and demanded she wire $500 before the man would take him to California. The man told her that if she did not wire the money, he would take Gonzalez-Gutierez "to the desert with a gun to his head." The witness said she told the man she would pay the money in person once he brought Gonzalez-Gutierez to California, but the man would not agree. The witness said she received calls from the man from about August 19 to August 22, 2009.
¶7 That witness's mother also testified she received similar telephone calls from a Spanish-speaking man asking for more money to transport Gonzalez-Gutierez to California. She said she could hear Gonzalez-Gutierez's voice in the background during the calls and that he sounded "very stressed out, scared." She testified that money already had been paid for Gonzalez-Gutierez's passage into the United States, but that the caller wanted more. She testified that if they did not agree to wire an additional $500, the caller said "they would take him to the desert and let the immigration take him back, if they didn't blow his head off."
¶8 Besides this evidence, in their closing arguments, both defense attorneys asked the jury also to consider testimony by a police officer who acknowledged that under certain circumstances, one who pays to be smuggled into the United States may be compelled by duress to assist a coyote if his own
relatives or friends are unable to satisfy additional ransom demands by the coyote. In rebuttal to that argument, the prosecutor stated:
PROSECUTOR: And what [the defense attorneys] are trying to do is they're trying to get you to really focus on this spectrum and all its permutations and make a decision as to what was going on in that house.
Well, there's a couple of problems with that. The first problem is evidentiary. There is a whole lot of stuff that went on in that house that you'll never know about.
Now, in this case, Irwing decided, and he has every right to do it, to exercise his prerogative not to testify. So the bottom line is we don't know a lot about his past, and he has every right to do that -
COUNSEL FOR GONZALEZ-GUTIEREZ: Your Honor, can we approach?
PROSECUTOR: - but we can't speculate.
The attorneys then approached the bench, where both defense counsel objected to the prosecutor's comments. The court then asked defense counsel, "What are you asking for?" Before defense counsel responded to the court's query, the prosecutor interjected, "Do you want me to just leave it alone?" Counsel for Camacho responded, "Yeah, turn around and walk out of a mine field. I don't want a mistrial or anything like that." Both the court and the prosecutor then said, "Okay." Beyond making the original objection and request to approach the bench, counsel for Gonzalez-Gutierez did not speak at the sidebar conference.
¶9 Continuing his closing rebuttal argument a moment later, the prosecutor continued:
In terms of testimony in this case, we know absolutely nothing about what happened prior to the victims getting there.Shortly thereafter, he stated:
So the legal inquiry that you are going to go back and deliberate on is not going to be this spectrum that they want you to focus on that you will not be able to focus on because you will never have all the facts in this case.
¶10 Immediately after the court excused the jurors to begin their deliberations, Gonzalez-Gutierez's counsel moved for a mistrial. She explained,
[The prosecutor's] reference to the fact that my client did [not] testify followed by statements to the jury which draw their attention to information that they didn't have.The court denied the motion. It first observed that defense counsel had not asked for a mistrial at the bench conference during the prosecutor's rebuttal. The court said that at that point in the proceedings, "I could have given an instruction to the jury at that time to tell them once again . . . not to take into consideration the fact that a defendant exercises [his] right not to testify at trial." When the court paused, the prosecutor spoke up, denying any misconduct. The court then concluded by stating, "Well, . . . had [defense counsel] asked for a mistrial at the time I would have seriously considered granting it. So in any event, at this point I am not - we'll see what happens."
The implication of which being that the only way that they could have obtained that information is through his testimony or testimony of any of the defendants, but then they didn't have that I think draws too much attention to that.
I think there were a couple instances of mentioning of evidence that was not in the record. . . .
I think taken in a whole it's very prejudicial and it is improper and that the mistrial should be granted.
¶11 The jury found Gonzalez-Gutierez guilty of all counts and found the aggravating factors of infliction or threat of serious physical injury, use of a deadly weapon and the presence of an accomplice. At sentencing, the court stated:
After sitting through the trial, I think it's correct to say that there was a genuine issue of duress, and it's also correct to say that predicting what the jury was going to do with that issue was not reallyThe court imposed mitigated sentences of eight years for each kidnapping and 1.5 years for the human smuggling, all to be served concurrently.
possible. I personally did not know how they were going to come down in this case.
¶12 Gonzalez-Gutierez 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), 13-4031 and -4033 (2011).
Absent material revisions after the date of an offense, we cite a statute's current version.
DISCUSSION
A. Prosecutorial Vouching.
¶13 In his Penson brief, Gonzalez-Gutierez argues the prosecutor's comments during closing argument amounted to prosecutorial misconduct. He first argues the prosecutor improperly vouched for the strength of the State's case when he told the jury that "[t]here is a whole lot of stuff that went on in that house that you'll never know about," and "you will never have all the facts in this case."
¶14 There are two forms of prosecutorial vouching: "(1) where the prosecutor places the prestige of the government behind its [evidence] [and] (2) where the prosecutor suggests that information not presented to the jury supports the [evidence]." State v. Newell, 212 Ariz. 389, 402, ¶ 62, 132 P.3d 833, 846 (2006) (alterations in original) (quoting State v. Vincent, 159 Ariz. 418, 423, 768 P.2d 150, 155 (1989)). Gonzalez-Gutierez argues the comments in this case fall into the second category.
¶15 In United State v. Young, 470 U.S. 1 (1985), the Supreme Court warned of the dangers of prosecutorial vouching, including the fact that "such comments can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize the defendant's right to be tried solely on the basis of the evidence presented to the jury." Id. at 18-19. The comments by the prosecutor in this case likely created just such an impression when he insinuated that he was aware of additional evidence not before the jury that supported the State's theory of the case.
¶16 Although attorneys are accorded "wide latitude" in presenting closing arguments, their statements must "be based on facts the jury is entitled to find from the evidence and not on extraneous matters that were not or could not be received in evidence." State v. Leon, 190 Ariz. 159, 162, 945 P.2d 1290, 1293 (1997) (quotation omitted). The prosecutor in this case engaged in impermissible vouching when he implied he was aware of evidence that was not offered to the jury about what happened in the drop house that supported the charges against Gonzalez-Gutierez.
Although a prosecutor is free to draw the jury's attention to gaps in the evidence, he or she may not imply that he or she knows of evidence that exists but was withheld from the jury. See, e.g. , Leon, 190 Ariz. at 162, 945 P.2d at 1293; State v. Dumaine, 162 Ariz. 392, 402, 783 P.2d 1184, 1194 (1989), disapproved on other grounds by State v. King, 225 Ariz. 87, 90, ¶ 12, 235 P.3d 240, 243 (2010); State v. Neil, 102 Ariz. 299, 300, 428 P.2d 676, 677 (1967). The prosecutor's comment in this case that "[t]here is a whole lot of stuff that went on in that house that you'll never know about" falls into the latter category.
B. Prosecutor's Comment on Gonzalez-Gutierez's Exercise of His Right Not to Testify.
¶17 Gonzalez-Gutierez also argues the prosecutor impermissibly commented on his failure to testify. The Fifth Amendment to the U.S. Constitution prohibits a prosecutor from making "any comment, direct or indirect," about a defendant's failure to testify. State v. Rutledge, 205 Ariz. 7, 12, ¶ 26, 66 P.3d 50, 55 (2003); see U.S. Const. amend. V; Ariz. Const. art. 2, § 10; A.R.S. § 13-117(B) (2011); Griffin v. California, 380 U.S. 609, 615 (1965); State v. Mata, 125 Ariz. 233, 237-38, 609 P.2d 48, 52-53 (1980). In determining whether a prosecutor's comments are improper, they "must be examined in context to determine whether the jury would naturally and necessarily perceive them to be a comment on the failure of the defendant to testify." State v. Blackman, 201 Ariz. 527, 544-45, ¶ 74, 38 P.3d 1192, 1209-10 (App. 2002) (quoting State v. Schrock, 149 Ariz. 433, 438, 719 P.2d 1049, 1054 (1986)). A comment is considered constitutionally improper if it "(1) [is] adverse, in that it supports an unfavorable inference against the defendant, and (2) operate[s] as a penalty for defendant's exercise of his constitutional right." Schrock, 149 Ariz. at 438, 719 P.2d at 1054.
¶18 The prosecutor in this case explicitly called the jury's attention to Gonzalez-Gutierez's failure to testify. Moreover, his statement suggested to the jury that because Gonzalez-Gutierez did not testify, evidence about what had happened in the drop house was being kept from them. His statement also suggested that the jury should not accept Gonzalez-Gutierez's duress defense because he chose not to testify on his own behalf.
¶19 The State argues this case is similar to State v. Church, 175 Ariz. 104, 854 P.2d 137 (App. 1993), in which the court held the prosecutor's comments "simply affirmed the defendant's right not to testify" and "did not . . . impose a penalty [] for the exercise of the right to silence." Id. at 106-07, 854 P.2d at 139-40. In this case, however, the prosecutor did not "simply affirm[]" Gonzalez-Gutierez's right not to testify. To the contrary, the prosecutor suggested Gonzalez-Gutierez should have testified in support of his duress defense and invited the jury to hold against Gonzalez-Gutierez his constitutionally protected decision not to testify. Viewed in context, the prosecutor's comments impermissibly violated Gonzalez-Gutierez's right under the Fifth Amendment to remain silent.
C. Remedy.
¶20 Our task in reviewing an appeal filed pursuant to Anders is to determine whether fundamental error occurred. See Anders, 386 U.S. at 744 (court reviews record for reversible error); State v. Henderson, 210 Ariz. 561, 568, ¶ 24, 115 P.3d 601, 608 (2005) (defendant who does not raise issue forfeits review absent fundamental error) . A fundamental error "goes to the foundation of [the defendant's] case, takes away a right that is essential to his defense, and is of such magnitude that he could not have received a fair trial." Id. We will not reverse a conviction because of fundamental error unless the error has prejudiced the defendant. Id. at ¶ 26.
¶21 A prosecutor's violation of a defendant's right not to testify may constitute fundamental error requiring reversal. See State v. Rhodes, 110 Ariz. 237, 517 P.2d 507 (1973); State v. Smith, 101 Ariz. 407, 410, 420 P.2d 278, 281 (1966). For example, in Rhodes, the defendant, who was convicted of murder, argued the superior court erred by denying her motion for a mistrial after the prosecutor impermissibly called the jury's attention to her failure to "explain away" the evidence against her. 110 Ariz. at 238, 517 P.2d at 508. Our supreme court held the defendant was prejudiced and reversed the conviction, explaining:
While we agree that harmless error has its place in some cases this is not one of them. It is appropriate in a case such as State v. Scarborough, 110 Ariz. 1, 514 P.2d 997 (1973) where the evidence of guilt was overwhelming and the prosecutor's comment did not contribute to the verdict. In the present case the evidence hangs in delicate balance with any prejudicial comment likely to tip the scales in favor of the State. With all the facts before us, we cannot say that the comment is beyond a reasonable doubt harmless. We must follow the constitutional and legislative mandate
(A.R.S. § 13-163 ) that a defendant's refusal to be a witness in his own behalf shall not in any manner prejudice him or be used against him.
Now A.R.S. § 13-117.
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Now A.R.S. § 13-117.
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Id.
¶22 Prosecutorial misconduct is not prejudicial "if we can find beyond a reasonable doubt that it did not contribute to or affect the verdict." State v. Hughes, 193 Ariz. 72, 80, ¶ 32, 969 P.2d 1184, 1192 (1998). The proper inquiry is not whether, without the prosecutorial misconduct, there was enough evidence for the jury to find the defendant guilty. Rather, the question is whether, without the prosecutorial misconduct, we can say -beyond a reasonable doubt - that the jury would have found him guilty. See Vincent, 159 Ariz. at 424, 768 P.2d at 156. To repeat the supreme court's words in Rhodes, "a defendant's refusal to be a witness in his own behalf shall not in any manner prejudice him or be used against him." 110 Ariz. at 238, 517 P.2d at 508.
¶23 In this case, of course, the prosecutor committed misconduct not only by impermissibly drawing the jury's attention to Gonzalez-Gutierez's decision not to testify, but also by impliedly telling the jury that other evidence not in the trial record incriminated the defendant. We consider the effects of multiple acts of prosecutorial misconduct cumulatively. See, e.g. , State v. Bocharski, 218 Ariz. 476, 491-92, ¶ 74, 189 P.3d 403, 418-19 (2008); Hughes, 193 Ariz. at 79, ¶ 26, 969 P.2d at 1191.
¶24 We conclude the prosecutor's misconduct in this case prejudiced Gonzalez-Gutierez's defense. Both acts of misconduct went to the heart of Gonzalez-Gutierez's defense of duress. The prosecutor told the jury there was additional, unrevealed evidence about "what went on in that house," and that as a result, it was impossible for them to find Gonzalez-Gutierez acted under duress. He also implied that the reason the jury did not have this evidence was because Gonzalez-Gutierez chose not to testify. The prosecutor continued with the same rhetorical theme after objections from defense and a sidebar conversation where the prosecutor said he would "leave it alone." The combined effect of these comments improperly prejudiced the jury and denied Gonzalez-Gutierez a fair trial.
¶25 The State argues the jury had ample evidence that Gonzalez-Gutierez did, indeed, assist the coyotes at the drop house. However, Gonzalez-Gutierez did not deny that he participated in these crimes; rather, he maintained that he acted under duress, a defense supported by the two witnesses who testified they refused a demand by a coyote to pay more money for Gonzalez-Gutierez's release. We note the superior court's comment that had Gonzalez-Gutierez moved for a mistrial immediately after the prosecutor's impermissible comments, the court "would have seriously considered granting it." Moreover, at sentencing, the court acknowledged that "there was a genuine issue of duress," and that it had not been able to predict what the jury was going to decide.
¶26 In sum, this was not a case in which the weight of the evidence renders the constitutional violation harmless. To the contrary, the case against Gonzalez-Gutierez was more like that in Rhodes, in which the evidence hung "in delicate balance." 110 Ariz. at 238, 517 P.2d at 508. Based on the record presented and the parties' Penson briefs, we conclude Gonzalez-Gutierez has demonstrated that the prosecutor's misconduct caused him prejudice requiring us to reverse his convictions.
CONCLUSION
¶27 For the foregoing reasons, we reverse the convictions and remand for further proceedings consistent with this decision.
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DIANE M. JOHNSEN, Presiding Judge
CONCURRING:
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PATRICIA A. OROZCO, Judge
___________________________________
LAWRENCE F. WINTHROP, Chief Judge