Opinion
No. 1 CA-CR 12-0092
12-27-2012
STATE OF ARIZONA, Appellee, v. BRAIDEN JOHN ACORD, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Joseph T. Maziarz, Section Chief Counsel Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Thomas K. Baird, 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. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2011-137763-002
The Honorable Daniel G. Martin, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
and Joseph T. Maziarz, Section Chief Counsel
Attorneys for Appellee
Phoenix James J. Haas, Maricopa County Public Defender
By Thomas K. Baird, Deputy Public Defender
Attorneys for Appellant
Phoenix KESSLER, Judge ¶1 Braiden John Acord ("Defendant") appeals his conviction for burglary in the second degree. Defendant argues that his right to a fair trial was violated by the admission of evidence regarding the exercise of his Fifth Amendment right to remain silent. For reasons that follow, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Defendant was indicted for burglary in the second degree, a class 3 felony, after a victim positively identified him from a photographic lineup as one of the two persons she observed walking away from her home carrying items belonging to her husband. Upon trial to a jury, Defendant was found guilty as charged. The trial court suspended sentencing and placed Defendant on probation for three years. Defendant timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2003) and 13-4033(A)(1) (2010).
DISCUSSION
¶3 Defendant argues that reversible error occurred when the State introduced evidence of his invocation of the right to remain silent. Because no objection was made to the particular evidence challenged on appeal, Defendant has forfeited appellate review of this claim absent fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Under this standard of review, a defendant bears the burden of establishing that fundamental error occurred and that the error caused him prejudice. Id. at 568, ¶ 22, 115 P.3d at 608. Error is fundamental only when it reaches the foundation of a defendant's case, takes from him "a right essential to his defense," and is "error of such magnitude that the defendant could not possibly have received a fair trial." Id. at 567, ¶ 19, 115 P.3d at 607 (quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984)). Further, our supreme court has "stated that the prejudice stemming from an unobjected-to error must be analyzed in light of the entire record." State v. Gallegos, 178 Ariz. 1, 11, 870 P.2d 1097, 1107 (1994). ¶4 At trial, a police officer testified about statements made by Defendant during an interview following his arrest. The officer testified that prior to any questioning, he advised Defendant of his Miranda rights and that Defendant stated he understood his rights. The officer further testified that after gathering background information from Defendant, he began to question Defendant about the burglary and the second person involved. The officer told Defendant that he was fairly confident that Defendant had been involved because he had been indentified from a photographic lineup and showed him the lineup. After the officer showed him the photographic lineup with his picture, Defendant slumped in his chair and remained silent for ten to fifteen minutes before recommencing speaking with the officer and making incriminating statements, including that if he talked any further he was going to "incriminate himself" and that "I'm not going to tell you I was there, but I'm not going to tell you I wasn't there." ¶5 Defendant argues that evidence was introduced through the officer's testimony regarding his exercise of the right to remain silent. Generally, "a defendant's [right to] due process is violated when a witness introduces a statement at trial that the defendant asserted his right to remain silent." State v. Gilfillan, 196 Ariz. 396, 406, ¶ 36, 998 P.2d 1069, 1079 (App. 2000). However, "testimony that falls short of disclosing a defendant's invocation of the right to remain silent does not run afoul of the Due Process Clause." State v. Siddle, 202 Ariz. 512, 515, ¶ 5, 47 P.3d 1150, 1153 (App. 2002). ¶6 Here, there was no direct testimony presented that Defendant invoked his right to remain silent. Defendant's claim that it was improper for the officer to comment on Defendant's silence in the middle of the interview is without merit. The officer's testimony in question focused on how Defendant acted when he stopped responding to questions for a number of minutes after being informed of the evidence against him. The officer simply described Defendant's behavior as he remained non-responsive, slumped in his seat with his head in his hands, and explained that it looked like Defendant was trying to decide what to do. There is nothing improper about a witness commenting on a defendant's demeanor. See State v. Mauro, 159 Ariz. 186, 198, 766 P.2d 59, 71 (1988). ¶7 Defendant also complains that when the prosecutor, in questioning the officer about the time period when Defendant became non-responsive, inquired whether Defendant ever asked to stop talking, the officer answered, "Not -- not yet." Defendant argues that this response implies that at some future time he invoked his right against incrimination. Even accepting Defendant's construction of the officer's response as involving an inferential reference to a future invocation of the right to remain silent, we nevertheless conclude that it does not rise to the level of fundamental error. "A comment does not constitute reversible error unless the prosecution draws the jury's attention to the defendant's exercise of the right to remain silent and uses it to infer guilt." State v. Guerrero, 173 Ariz. 169, 172, 840 P.2d 1034, 1037 (App. 1992). Given that the officer's answer was a brief, unobjected-to response that did not necessarily suggest Defendant was guilty because he ended the interview and there was never any use of the response by the prosecutor to infer guilt, any error resulting from the answer was not reversible error. See id.; see also Gilfillan, 196 Ariz. at 406, ¶ 38, 998 P.2d at 1079 (determining there was no reversible error when "testimony consisted of no more than a brief reference to the defendant's request for counsel" and there was "no suggestion that it was elicited as the result of willful misconduct by the prosecutor").
CONCLUSION
¶8 On this record, Defendant has failed to sustain his burden of proving that fundamental error occurred or that he was prejudiced by any error in the testimony concerning the post-arrest interview. See Henderson, 210 Ariz. at 567, ¶ 20, 115 P.3d at 607. Accordingly, we affirm Defendant's conviction and resulting disposition.
________________________
DONN KESSLER, Judge
CONCURRING: ________________________
MICHAEL J. BROWN, Presiding Judge
________________________
ANDREW W. GOULD, Judge
Miranda v. Arizona, 384 U.S. 436 (1966).