Opinion
No. 2 CA-CR 2016-0376
01-30-2018
THE STATE OF ARIZONA, Appellee, v. LUIS ALBERT HERNANDEZ, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee Rosemary Gordon Pánuco, Tucson Counsel for Appellant
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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.19(e).
Appeal from the Superior Court in Pinal County
No. S1100CR201401561
The Honorable Kevin D. White, Judge
AFFIRMED
COUNSEL
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Diane Leigh Hunt, Assistant Attorney General, Tucson
Counsel for Appellee
Rosemary Gordon Pánuco, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred.
ESPINOSA, Judge:
¶1 In September 2016, Luis Hernandez was convicted of the first degree felony murder of J.J. and the kidnapping and aggravated assault of C.V. The trial court sentenced him to concurrent prison terms of 10.5 years for kidnapping and 3.5 years for aggravated assault, to be served consecutively to a natural life sentence for murder. On appeal, Hernandez argues there was insufficient evidence to support his kidnapping and murder convictions, the state committed prosecutorial misconduct during the trial, and the jury was tainted by exposure to unadmitted evidence during its deliberations. For the following reasons, we affirm the convictions and sentences.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the jury's verdicts. State v. Buccheri-Bianca, 233 Ariz. 324, ¶ 2 (App. 2013). During the early morning hours of March 15, 2014, Christopher Bandin drove a white truck to Estevan Angulo's house, where he spent the night in the truck. Later that morning, Bandin knocked on the door and spoke with Angulo's wife, who told him to leave. Bandin had taken a gas can from Angulo's garage and, after trying to explain that he knew Angulo through C.V. and that the truck had broken down, Bandin got it started and drove to Allen Church's house nearby.
¶3 When Bandin arrived at Church's house, J.J. was there, and the two of them left together in J.J.'s car, leaving the truck to be picked up later. After J.J. dropped Bandin off at his girlfriend's house, he picked up C.V. and returned to Church's house to steal the stereo from the truck Bandin had left there. They found the keys to the truck, and C.V. drove it while J.J. followed in his car. The truck, however, stalled, prompting C.V. to park it on the side of a dirt road, where he and J.J. proceeded to remove the stereo and then drove to Angulo's house to buy methamphetamine from him.
¶4 Angulo arrived shortly after C.V. and J.J. When Angulo went to retrieve methamphetamine for them from his garage, he noticed that some marijuana was missing and "became kind of angry," asking if they knew anything about it. He then telephoned Hernandez, who arrived within a half hour. Angulo and Hernandez drove to Church's house to ask him if he had seen J.J. and C.V. with the white truck that morning, and Church told them he had.
¶5 At that point, according to Hernandez, he and Angulo returned to Angulo's house and Hernandez, acting on Angulo's instruction "to beat up [C.V.]," immediately "got out of the car . . . [to] wrestle with him," accusing him of stealing Angulo's marijuana. Hernandez testified that C.V. then "pulled a gun on [him]." C.V., however, testified to the contrary, stating, "[Hernandez] comes after me, he comes charging at me, we get into a fight . . . , we trip over a dolly . . . [and h]e ends up landing on top of me. Goes to his waist, pulls out a gun and points it clearly at my head." Meanwhile, Angulo "had got off the truck as well and went straight to [J.J.]"
¶6 According to C.V., Hernandez then ordered him "to go with [Angulo] in his truck" while Hernandez "went with [J.J.] in his car to keep [them both] in close range." The four of them returned to Church's house, and Angulo asked Church if C.V. had been at his house that morning. J.J. started to say something, but Angulo told him, "Man, shut your mouth because you're already going to get yours." Hernandez then said, "Let's take this somewhere else," and told J.J., "Get back in the car," while Angulo told C.V., "Get back in the truck." Church testified that Hernandez "looked like he meant business" and Angulo "looked kind of pissed" and mentioned something missing from his garage and someone insulting his wife.
¶7 From Church's house, the four drove to where the white truck had stalled, C.V. providing directions, because Angulo wanted to search it for the missing marijuana. C.V. and Angulo arrived in Angulo's truck first. C.V. testified that when J.J. and Hernandez pulled up, they were arguing, and after J.J. parked the car, Hernandez got out, walked around the front, and shot J.J. four times as he was getting out. Angulo, C.V., and Hernandez then drove back to Angulo's house, Hernandez saying that J.J. had confessed to stealing the marijuana and threatening C.V. not to go to the police.
¶8 At trial, Hernandez provided a different account of the events following the fight at Angulo's house, claiming C.V. had wanted to go to
Church's to confront him about what he had told Hernandez and Angulo. Hernandez also claimed that when the four of them left Church's house they went back to Angulo's and smoked methamphetamine together. Then C.V., apparently just remembering, told Angulo he had seen the white truck on the side of the road and took them to it. On the car ride over, J.J. told Hernandez, "[C.V.] is up there telling [Angulo] I did it. I know that." Hernandez testified that once they arrived, C.V. shot J.J. while Hernandez was still in the passenger seat, although he jumped out of the car after the shooting started.
¶9 Notwithstanding Hernandez's account, the jury found him guilty of all three counts as charged, and he was sentenced as described above. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1)-(2).
Sufficiency of the Evidence
¶10 Hernandez first argues the state presented insufficient evidence to sustain his kidnapping and felony murder convictions. "Whether sufficient evidence was presented to sustain the verdict is a question of law this court reviews de novo." State v. Borquez, 232 Ariz. 484, ¶ 9 (App. 2013). The evidence presented at trial was sufficient if the jury's verdict is supported by substantial evidence, which "is more than a mere scintilla and is such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." Id., quoting State v. Mathers, 165 Ariz. 64, 67 (1990) (internal quotation marks omitted). We address each of Hernandez's arguments in turn.
Kidnapping
¶11 Hernandez was charged with kidnapping C.V. under A.R.S. § 13-1304(A)(3), which defines the crime as "knowingly restraining another person with the intent to . . . [i]nflict death, physical injury or a sexual offense on the victim, or to otherwise aid in the commission of a felony." Hernandez argues the evidence did not establish restraint, citing State v. Styers, 177 Ariz. 104 (1993). In that case, our supreme court noted that under A.R.S. § 13-1301(2), "there are three elements of restraint: without consent, without legal authority, and in a manner that substantially interferes with the victim's liberty." Styers, 177 Ariz. at 111. Hernandez asserts "[t]he evidence does not show that any of the [elements] of restraint were proven in this case." We disagree.
¶12 Regarding the first element, § 13-1301(2)(a) provides that "[r]estraint is without consent if it is accomplished by . . . [p]hysical force, intimidation or deception." C.V. testified that Hernandez attacked him and pointed a gun "[r]ight at [his] head" and then "ordered" him "to go with [Angulo] in his truck." He further stated he "fe[lt] like [he] had to go" because both Hernandez and Angulo had guns and "after [Hernandez] point[ed] the gun at [him] . . . [he] had to comply with everything they said." C.V. said he had been afraid of "getting shot" or "being killed" and this fear remained when they went from Angulo's house to Church's and from there to the white truck, at which point "there was nowhere to go" and "if [he] had tried to run, they c[ould] easily [have] ca[ught] up to [him] in their vehicle."
¶13 Hernandez argues "[t]here was no evidence that [C.V.] was held without his consent by the use of intimidation" because C.V.'s "claimed fear of [Hernandez]" was contradicted by his having "volunteer[ed]" to take Angulo to the truck. C.V., however, testified that Hernandez had "ordered" him to do so, and his account was corroborated by Church's testimony that, when the four men were at Church's house, C.V. "looked kind of worried, like scared." Church also testified that Hernandez said, "Let's take this somewhere else," and then both Hernandez and Angulo ordered J.J. and C.V., "Get back in the [vehicles]."
¶14 When reviewing the sufficiency of the evidence, "[i]t is not the province of an appellate court to reweigh evidence or reassess the witnesses' credibility." Buccheri-Bianca, 233 Ariz. 324, ¶ 38. Accordingly, we do not assess the credibility of C.V. or Hernandez on the issue of whether C.V. voluntarily took Hernandez and Angulo to the truck or did so as a result of intimidation. Hernandez additionally argues C.V. could not have been intimidated given that he stayed at Angulo's house while Hernandez and Angulo went to see Church, but notably that was before Hernandez pointed a gun at C.V. and started giving him orders. Hernandez further points to the fact that C.V. was free to leave Angulo's house after the murder, but he has identified no authority, nor are we aware of any, for the proposition that releasing a kidnapping victim negates the already accomplished kidnapping. Cf. State v. Tschilar, 200 Ariz. 427, ¶ 14 (App. 2001) ("[T]he victim's safe release is not an element of the offense of kidnapping but a factor involved in sentencing."); § 13-1304(B).
¶15 On the second element of restraint, "without legal authority" under § 13-1301(2), Hernandez merely asserts, "[c]learly 'without legal authority' does not apply to the situation in this case." On the contrary, it is clear that Hernandez was without any authority to restrain C.V. Cf.
Styers, 177 Ariz. at 111 (because child's mother could not give defendant legal authority to take child to desert to murder him, and "[c]learly, defendant had no other legal authority from any source," kidnapping was without legal authority).
¶16 The last element of restraint requires that the defendant "restrict a person's movements . . . in a manner which interferes substantially with such person's liberty, by either moving such person from one place to another or by confining such person." § 13-1301(2). Hernandez argues this element was not met because C.V. could have left Angulo's house "at any time" while Hernandez and Angulo were at Church's. Again, however, the kidnapping did not begin until after Hernandez and Angulo returned to Angulo's house.
¶17 Hernandez additionally argues he did not substantially interfere with C.V.'s liberty because C.V. rode with Angulo rather than Hernandez. But he ignores that the jury was instructed on accomplice liability, and there was evidence that Hernandez and Angulo were together giving the orders and directing C.V. and J.J. where to go and what to do. Hernandez further maintains he did not interfere with C.V.'s liberty because C.V. "insisted on going to Church's the second time" and "volunteered" to take Angulo to the white truck. He relies, however, on his own version of events whereas C.V. testified that he went to Church's and then to the white truck on Hernandez's orders. See Buccheri-Bianca, 233 Ariz. 324, ¶ 38 (appellate court does not reweigh evidence).
¶18 We conclude the state presented sufficient evidence of restraint to support Hernandez's conviction for kidnapping C.V.
Felony Murder
¶19 Hernandez next argues his felony murder conviction must be vacated because the state failed to prove the predicate felony of kidnapping either C.V. or J.J. and "there is no causal connection between any 'kidnapping' of [C.V.] and the death of [J.J.]" Again, we disagree. Under A.R.S. § 13-1105(A)(2):
A person commits first degree murder if . . . [a]cting either alone or with one or more other persons the person commits or attempts to commit . . . kidnapping under § 13-1304 . . . and, in the course of and in furtherance of the offense or immediate flight from the offense, the
person or another person causes the death of any person.
¶20 As discussed above, the state introduced sufficient evidence to prove Hernandez kidnapped C.V., but the evidence was also sufficient to show, as the state argued at trial, that Hernandez kidnapped J.J. and his death occurred in the course of and in furtherance of the offense. Hernandez argues J.J. "was free to leave at any time because he had his car," but a person can be restrained for purposes of the kidnapping statutes through intimidation rather than physical force. See § 13-1301(2)(a).
¶21 Church testified at trial that when Hernandez, Angulo, C.V., and J.J. were at Church's house, J.J. "looked pretty worried" and "scared." He also testified that Angulo had told J.J. to "shut [his] mouth because [he was] already going to get [his]" and that Hernandez had ordered J.J. to "[g]et back in the car." C.V. testified that both Angulo and Hernandez had guns while neither he nor J.J. had a weapon, and Hernandez rode with J.J. "to keep [him] in close range." This evidence was sufficient to support the conclusion that J.J. was not free to leave even though he was in the driver's seat and that his kidnapping and murder were causally connected.
¶22 Hernandez additionally challenges the murder conviction by citing his own testimony that J.J. told him he was afraid C.V. was implicating him in the marijuana theft and arguing that if he had intended to shoot J.J. "he could more easily have shot him from the passenger side ensuring that [J.J.] would not escape." But, as previously noted, it is not our role to reweigh the evidence. Buccheri-Bianca, 233 Ariz. 324, ¶ 38. It was the jury's duty to decide whether it accepted Hernandez's testimony and whether it believed the physical evidence supported C.V.'s or Hernandez's version of events. Because the state presented sufficient evidence for the jury to find Hernandez guilty of felony murder, we will not disturb that conclusion.
Prosecutorial Misconduct
¶23 Hernandez next argues the state committed prosecutorial misconduct during the trial because "[t]he prosecutor failed to disclose material evidence, vouched for the credibility of his witnesses, and argued facts not in evidence." "To prevail on a claim of prosecutorial misconduct, a defendant must demonstrate that the prosecutor's misconduct so infected the trial with unfairness as to make the resulting conviction a denial of due process." State v. Morris, 215 Ariz. 324, ¶ 46 (2007), quoting State v. Hughes, 193 Ariz. 72, ¶ 26 (1998) (internal quotation marks omitted). "Prosecutorial
misconduct constitutes reversible error only if (1) misconduct exists and (2) 'a reasonable likelihood exists that the misconduct could have affected the jury's verdict, thereby denying defendant a fair trial.'" Id., quoting State v. Anderson, 210 Ariz. 327, ¶ 45 (2005).
¶24 The standard of review for each instance of misconduct Hernandez alleges hinges upon whether he objected during trial, as he acknowledges. See id. ¶ 47. If an objection was made, the issue is reviewed under the two-part test above. Id. If no objection was made, we review only for fundamental error. Id. Fundamental error is that "going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial." State v. Henderson, 210 Ariz. 561, ¶ 19 (2005), quoting State v. Hunter, 142 Ariz. 88, 90 (1984). The burden of persuasion lies with the defendant, who "must establish both that fundamental error exists and that the error in his case caused him prejudice." Id. ¶¶ 19-20.
¶25 During trial, Hernandez objected to Detective Bonucci's testimony as to whether, "in [his] judgment," various shoe prints left at the scene of the murder resembled shoes the state had seized from Hernandez's and Angulo's houses and shoes belonging to people who were at the crime scene during the investigation. Hernandez argued that when he had interviewed Detective Bonucci, the detective did not mention shoe print comparisons and "no report just like the testimony" had been disclosed. The state countered that it did not "have an obligation to give up a preview or a running prediction of what questions are going to be asked during the trial" and all of the evidence being discussed had been disclosed. The trial court agreed with the state and overruled the objection.
¶26 On appeal, Hernandez asserts "the State did not disclose that shoe print comparison had been made" and "[t]his deprived defense counsel of the opportunity to have the comparison analyzed and possibly find an expert to counter the information presented by the State." Notably, however, the detective did not say that any of the shoe prints resembled shoes worn by Hernandez or taken from his house. Thus, even were we to conclude the state should have disclosed that the detective had examined the shoe prints at the scene and considered to whom they belonged, there is no reasonable likelihood this could have affected the jury's verdict. See Morris, 215 Ariz. 324, ¶ 46.
¶27 Hernandez additionally challenges as not previously disclosed Detective Bonucci's testimony that the driver's side door of J.J.'s
car had gunshot residue on it and there was a photograph of the chemical test result. Although Hernandez identifies this as an objected-to instance of misconduct, the record reflects he in fact did not object to the testimony, and even joined in the admission of the photograph. He subsequently mentioned it in passing the following day while objecting to the shoe print comparison testimony, claiming the gunshot residue test also "wasn't recorded in any of [the] reports."
¶28 But even reviewing this evidence under the two-part prosecutorial misconduct test, any error in its admission did not amount to reversible error. Hernandez claims on appeal that the residue test "revealed that the gun muzzle had been much closer than all of the other evidence indicated." A crime scene investigator, however, testified that, based on the trajectory of bullets found in the car, the gun was fired "[i]n close proximity to the driver's door." Additionally, neither the state nor Hernandez mentioned the gunshot residue or the distance between the shooter and J.J. during closing arguments. Accordingly, we conclude the evidence was not reasonably likely to have affected the jury's verdict. See id.
¶29 Next, Hernandez argues the state improperly vouched for the credibility of Detective Bonucci by eliciting testimony that he did not believe there was probable cause to search C.V.'s house and it would have been unethical to nevertheless seek a search warrant. In support, Hernandez cites State v. Vincent, 159 Ariz. 418, 423 (1989), in which our supreme court identified "two forms of impermissible prosecutorial vouching: (1) where the prosecutor places the prestige of the government behind its witness; (2) where the prosecutor suggests that information not presented to the jury supports the witness's testimony."
¶30 Hernandez contends the state's questions regarding probable cause to search C.V.'s house reflect "an instance of the second type of impermissible vouching because the prosecutor suggested that information outside of what was presented to the jury affected the Detective's decision to not investigate [C.V.] and that impermissibly bolstered the credibility of the State's case against [Hernandez]." But the state broached the issue only after Hernandez, during his cross-examination of the detective, elicited testimony that C.V.'s house was never searched and the detective explained, "I never developed any probable cause to justify being able to obtain a search warrant." Hernandez then asked several follow-up questions about whether the detective had sought a search warrant or consent to search C.V.'s house at various points throughout the
investigation, and the detective discussed his understanding of when valid consent can or cannot be obtained for a search.
¶31 On redirect examination, the state followed up by asking Bonucci, "[I]s it your understanding that the 4th Amendment requires you to establish before a judge that you have probable cause to [search for] specific things in relation to criminal activity?" The state also asked, "[D]o you feel you need to have a good faith belief that you're going to find evidence of a crime at a particular location before you seek a search warrant?" Then, after Hernandez on re-cross-examination raised the issue of a judge deciding whether probable cause exists, the state asked the detective, "Would it be ethical for you, in your mind, to seek a search warrant when you personally don't feel there's probable cause?"
¶32 Even were we to consider the state's line of questioning improper, Hernandez invited any error that might have occurred. "The invited error doctrine applies to situations where evidence adduced or comments made by one party make otherwise irrelevant evidence relevant or require some response or rebuttal." State v. Wilson, 185 Ariz. 254, 259 (App. 1995). Hernandez elicited the detective's testimony that he had not obtained a search warrant for C.V.'s house because he did not believe probable cause existed and further asked him to explain why he believed he could not have obtained valid consent for a search. Hernandez cannot now complain that the state asked the detective to further explain his implied failure to fully investigate the incident.
¶33 Hernandez also challenges aspects of the state's closing argument. In particular, he asserts the state's PowerPoint presentation "included a definition of 'restrain' that was much longer tha[n] what the Court and the parties had approved for presentation to the jury." Again, however, even if any error occurred, it was harmless. During Hernandez's closing argument, he told the jury, "Please remember that that power point is not evidence" and "[the prosecutor] expanded what he thinks the law on restraint is. But . . . what the law is on that is the judge's instruction." And the trial court already had instructed the jury on the definition of "[r]estrain" prior to the parties giving their closing arguments. The state additionally maintains that the PowerPoint definition "was the full RAJI definition of 'restrain' which tracks the A.R.S. definition of 'restrain' at A.R.S. 13-1301(2)," and the PowerPoint itself is not in the record. We therefore conclude the state's "expanded" PowerPoint definition of restrain was not reasonably likely to affect the jury's verdict. Cf. State v. Payne, 233 Ariz. 484, ¶ 120 (2013) ("We assume the jurors followed th[e curative] instructions . . . .").
¶34 Hernandez further contests the prosecutor's statements on rebuttal that Hernandez "shoots with his left hand," to which Hernandez objected at trial on the ground there had been no such evidence introduced. But it was Hernandez who introduced the left-handedness assertion during his closing argument, which the state then addressed in rebuttal. Furthermore, the trial court instructed the jury, "understand the lawyers' comments are not evidence and jurors determine the facts in this case and the evidence that is presented in court, rely on your own memory, your collective memory as jurors, determine what facts are presented in the case." Again, we presume jurors follow any curative instructions they are given, id., and Hernandez has made no attempt on appeal to demonstrate how the prosecutor's statements about which hand he used to fire a gun prejudiced his defense.
¶35 Hernandez lastly complains that the state in rebuttal "drew a circle around the car saying it was no wonder that no footprints existed because [the person who called 9-1-1] drove around the scene and between the vehicles" but "[t]here was no such evidence introduced at trial." Hernandez, however, misquotes the prosecutor's statement, which was in fact simply that the 9-1-1 caller "had driven between the two cars" at the scene. And although that fact was not specifically introduced at trial, the prosecutor supported the lack of footprints by referring to the detective's testimony about the 9-1-1 caller's footprints being near J.J.'s car and some of the adjacent ground along the dirt road being "hard packed," concluding "you are not going to be able to get the shoe impression" there.
¶36 Hernandez did not object during trial, and therefore we review only for fundamental error. See Morris, 215 Ariz. 324, ¶ 47. Hernandez argues the prosecutor's "argument prejudiced [him] because the defense was that the lack of footprints demonstrated that [C.V.] was the shooter since he was positioned to do so and that [Hernandez] could not have come around the car as described and not left foot prints." But even if the prosecutor's statement about the 9-1-1 caller driving between the cars overstated the evidence, the lack of footprints was explained by the nature of the ground around the car and the fact that at least one other person had walked through the crime scene. We therefore cannot say the error was "of such magnitude that the defendant could not possibly have received a fair trial," Henderson, 210 Ariz. 561, ¶ 19, quoting Hunter, 142 Ariz. at 90.
Extrinsic Evidence
¶37 Hernandez's final argument is that "[t]he jury in this case was exposed to evidence that was not admitted in this trial after they had begun
their deliberations." Hernandez acknowledges he did not preserve this issue for appeal, and we review only for fundamental error. See Morris, 215 Ariz. 324, ¶ 47.
¶38 During the jury's deliberation, the trial court received a note from the jury asking, "[C]an we reconsider [sic] evidence that was not admitted in court, that was left here in the jury room?" The note referred to an exhibit that "include[d] several [compact] disks" but only one of which was actually admitted. The judge brought the jury back to the courtroom and questioned the foreperson, who stated they "didn't review any" of the disks but "looked at the titles on them." When asked how they knew the evidence had not been admitted, the foreperson said they saw that a few of the disks' titles identified them as interviews with Church's roommate and Angulo. The judge then polled the jury and all jurors agreed with the foreperson's account.
¶39 After conferring with Hernandez and the state, the trial court gave the jury a curative instruction:
I am instructing you as follows, you must determine what the facts are in this case only from the evidence produced in court. When I say evidence, I mean the testimony of witnesses, and the exhibits introduced in court. You should not guess about any fact. You . . . must disregard the fact that there are CD[s] or DVD[s] which were not admitted as evidence. You must not consider these CDs and DVDs for any purpose. You should not guess about the reason why a certain CD or DVD ha[s] not been admitted in the case. Rules of evidence or rules of law prevent consideration of some evidence.
¶40 Hernandez argues "[t]he jury in this case was faced with little real evidence except the word of a thief and liar [C.V.] that [Hernandez] was the one who shot and killed [J.J.]" and the titles on the unadmitted disks "allowed them to speculate that there was more to this case and that [Hernandez] must be guilty." Although it is possible the jury speculated about the content of the disks, Hernandez has presented no compelling or logical argument that any speculation would necessarily have been contrary to his interests. Moreover, the trial court gave the jury an express and detailed instruction not to consider the unadmitted disks or to "guess about any fact" or "why a certain CD or DVD ha[s] not been admitted." As
previously noted, we presume the jury followed the court's directive. See Payne, 233 Ariz. 484, ¶ 120. Accordingly, we find no fundamental error.
Disposition
¶41 For all of the foregoing reasons, Hernandez's convictions and sentences are affirmed.