Opinion
No. 2 CA-CR 2014-0105
03-19-2015
THE STATE OF ARIZONA, Appellee, v. FERNANDO ALBERT ALVAREZ, JR., Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Amy Pignatella Cain, Assistant Attorney General, Tucson Counsel for Appellee Lori J. Lefferts, Pima County Public Defender By Katherine A. Estavillo, Assistant Public Defender, 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NOT FOR PUBLICATION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. 31.24.
Appeal from the superior Court in Pima County
No. CR20133319001
The Honorable Christopher Browning, Judge
The Honorable Kenneth Lee, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Amy Pignatella Cain, Assistant Attorney General, Tucson
Counsel for Appellee
Lori J. Lefferts, Pima County Public Defender
By Katherine A. Estavillo, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Howard authored the decision of the Court, in which Presiding Judge Kelly and Judge Vásquez concurred. HOWARD, Judge:
¶1 Following a jury trial, Fernando Alvarez Jr. was convicted of one count of aggravated assault on a peace officer. On appeal, he argues the trial court erred in failing to require use immunity for a defense witness and by instructing the jury on voluntary intoxication. For the following reasons, we affirm.
Factual and Procedural Background
¶2 "We view the facts in the light most favorable to sustaining the challenged conviction." State v. Nevarez, 235 Ariz. 129, ¶ 2, 329 P.3d 233, 236 (App. 2014). In August 2013, Officers Higginbotham and Julsing of the Tucson Police Department (TPD) responded to a call concerning a disorderly male. When they arrived, the officers encountered Alvarez, who was not wearing a shirt and appeared upset and agitated. They asked him to leave the area. Alvarez walked away and joined his friend, M.W., but remained in the area. The officers then asked both Alvarez and M.W. to leave the area, at which point the pair proceeded to jaywalk across a major street to a bus stop, causing a number of cars to slam on their brakes and disrupting traffic.
¶3 The officers confronted Alvarez and M.W. at the bus stop, at which point Officer Higginbotham asked for M.W.'s identification, and she refused to provide either identification or state her name. Officer Higginbotham placed her under arrest, and as he attempted to place handcuffs on her, she tried to punch him in the face. A struggle ensued between M.W. and the officers, during which Alvarez lunged at Officer Julsing and attempted to tackle him by grabbing him low around the waist. Officer Julsing eventually placed Alvarez in handcuffs and detained him.
¶4 Alvarez was charged with and convicted of aggravated assault on a peace officer, and the trial court sentenced him as a repetitive offender to a minimum prison term of four years. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(1).
Use Immunity for M.W.
¶5 Alvarez first argues the trial court violated his right to compulsory process by failing to require the state to grant use immunity for M.W.'s testimony and by not using its inherent authority to grant use immunity. See State v. Axley, 132 Ariz. 383, 388, 646 P.2d 268, 273 (1982). He claims that the prosecutor committed misconduct by inquiring about the status of M.W.'s charges, delaying in deciding whether to bring any charges, and suggesting she obtain counsel, all of which, he claims, caused her to invoke her right against self-incrimination at trial. He reasons that, but for this alleged misconduct, M.W. would not have refused to answer a question about whether she attempted to punch Officer Higginbotham, and that without her "unhampered" testimony through a grant of use immunity, he was unable to present a complete defense.
¶6 Alvarez raised this argument below and moved to dismiss the case or, in the alternative, require a grant of use immunity. But the trial court found it was "unable . . . to discern any improper motive or conduct by the State" and denied the motion. We review a trial court's factual findings for an abuse of discretion. State v. Bouck, 225 Ariz. 527, ¶ 5, 241 P.3d 524, 526 (App. 2010). But we review de novo questions regarding a defendant's right to compulsory process under the Sixth Amendment of the United States Constitution and article II, § 24 of the Arizona Constitution. State v. Sanchez-Equihua, 235 Ariz. 54, ¶ 7, 326 P.3d 321, 323 (App. 2014).
The state argues that Alvarez is entitled only to fundamental error review because his motion seeking use immunity below was filed less than twenty days prior to trial, in violation of Rule 16.1(b), Ariz. R. Crim. P. In his motion below, however, Alvarez asked the trial court to consider the motion despite its untimeliness, the court ordered the state to respond to the motion, and the state did not challenge the timeliness of the motion. As it was entitled to do, the court considered and denied Alvarez's motion on its merits. See Ariz. R. Crim. P. 16.1(b), (c); State v. Zimmerman, 166 Ariz. 325, 328, 802 P.2d 1024, 1027 (App. 1990) (court has discretion to hear late motions). Consequently, we do not agree that Alvarez failed to object below.
¶7 At trial, Alvarez argued he acted in defense of a third party, claiming that the officers used excessive force in arresting M.W. and that Alvarez was justified in grabbing Officer Julsing. He testified at trial that he had intended to pull the officer off of M.W. after he had become concerned the officers were assaulting her. And he testified that he had not seen M.W. attempt to punch Officer Higginbotham because he was focused on Officer Julsing.
¶8 Alvarez called M.W. to testify as to her version of the events. When asked whether she tried to punch one of the officers, she declined to answer on Fifth Amendment grounds.
¶9 The Sixth Amendment guarantees a defendant the "right to compel witnesses to testify whose testimony is material and favorable to the defense." State v. Rosas-Hernandez, 202 Ariz. 212, ¶ 10, 42 P.3d 1177, 1181 (App. 2002), citing United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982). But "[t]here is no [S]ixth [A]mendment right to have a witness testify if the witness claims a valid privilege." State v. Fisher, 141 Ariz. 227, 243, 686 P.2d 750, 766 (1984). And a defendant's right to compulsory process "does not override the witness'[s] [F]ifth [A]mendment right to claim the privilege against self-incrimination." Id.
¶10 By statute, a trial court may compel testimony otherwise protected by the Fifth Amendment, and the compelled testimony "shall not be used against the [witness] in any proceeding or prosecution for a crime or offense concerning which he gave answer." A.R.S. § 13-4064. But the court may do so only when the state asks, in writing, for a court order compelling the testimony. Id. Thus, the authority to invoke § 13-4064—and thereby to grant use immunity—lies squarely with the state, and "it is a matter for prosecutorial discretion to decide when the public interest would be best served by a grant of immunity." State v. Jeffers, 135 Ariz. 404, 424, 661 P.2d 1105, 1125 (1983).
¶11 Our supreme court has recognized two exceptions for which the right to compulsory process may require the state to grant use immunity to a defense witness. See Fisher, 141 Ariz. at 243-44, 686 P.2d at 766-67; Axley, 132 Ariz. at 388, 646 P.2d at 273. Only the first is relevant here. This exception, articulated by the Third Circuit in United States v. Morrison, 535 F.2d 223 (3d Cir. 1976), applies when a "witness'[s] decision to claim the [F]ifth [A]mendment was caused by prosecutorial misconduct." Fisher, 141 Ariz. at 243, 686 P.2d at 766.
Alvarez does not argue in his opening brief that use immunity was required under the second exception. To the extent Alvarez refers to this exception in his reply brief, we do not consider its application, if any, to the facts of this case. See State v. Brown, 233 Ariz. 153, ¶ 28, 310 P.3d 29, 39 (App. 2013) ("Arguments raised for the first time in a reply brief . . . are waived."). Thus, we consider only whether the prosecutorial misconduct exception required use immunity for M.W.'s testimony.
¶12 Alvarez argues M.W. should have been granted use immunity under this exception, relying on Morrison. In Morrison, the court concluded the prosecutor's repeated warnings and highly intimidating personal interview with the witness were unnecessary and constituted misconduct. 535 F.2d at 227. Nothing similar happened here. The state merely indicated it had not decided whether to charge M.W., and the trial court appointed her counsel upon Alvarez's motion. The court found no improper motive, and we defer to that assessment. See State v. Rosengren, 199 Ariz. 112, ¶ 9, 14 P.3d 303, 307 (App. 2000) ("We defer to the trial court's factual findings that are supported by the record and not clearly erroneous."). Alvarez has failed to show that the court abused its discretion by declining to find any misconduct. See Bouck, 225 Ariz. 527, ¶ 5, 241 P.3d at 526.
¶13 Furthermore, the Sixth Amendment only protects a defendant's ability to present evidence that is "material and favorable to the defense." Rosas-Hernandez, 202 Ariz. 212, ¶ 10, 42 P.3d at 1181; see Valenzuela-Bernal, 458 U.S. at 867 (Sixth Amendment does not guarantee right to secure any and all testimony, only testimony in defendant's favor); State v. Fuller, 143 Ariz. 571, 574 n.2, 694 P.2d 1185, 1188 n.2 (1985) (right to compulsory process not violated unless testimony sought is material).
¶14 In Morrison, the Third Circuit rejected the application of harmless error analysis to violations of the right to compulsory process occasioned by prosecutorial misconduct. 535 F.2d at 227-28 (rejecting trial court's finding prosecutor's actions did not prejudice defendant and "could not have affected the verdict"). Yet the privileged testimony in that case was material to a disputed issue and favorable to the defendant. Id. at 228 (evidence contradicted defendant's intent). And since Morrison, the Third Circuit has expressly stated that, for any violation of the right to compulsory process, a defendant must show "the excluded testimony would have been material and favorable to his defense." Virgin Islands v. Mills, 956 F.2d 443, 446 (3d Cir. 1992); see also United States v. Bianchi, 594 F. Supp. 2d 532, 539-41, 544-45 (E.D. Pa. 2009) (explaining Third Circuit's post-Morrison articulation of Sixth Amendment's materiality requirement and application of harmless error standard).
¶15 Thus, to be entitled to use immunity under the prosecutorial misconduct exception, a defendant must show not only prosecutorial misconduct but also that the privileged testimony sought from the witness was both material and favorable. See also United States v. Abbas, 74 F.3d 506, 512 (4th Cir. 1996) (defendant must show both prosecutorial misconduct and proffered evidence is "material, exculpatory and unavailable from all other sources").
¶16 Alvarez argues his right to compulsory process was violated because M.W. could not testify about the punch and "provide an explanation" for it, and her invocation of the Fifth Amendment "made it appear that [she] had no good explanation for her action." But M.W. testified extensively about the encounter. She stated she had merely attempted to walk away when the officer grabbed her hair and threw her to the ground. Then, she testified, both officers knelt on her back, one began to touch her inappropriately, and she called him a "pervert." Contrary to Alvarez's argument, M.W. provided the "explanation for [her] actions"; she only refused to answer whether she had swung at the officer.
¶17 Moreover, for Alvarez's actions to be justified as a defense of M.W., they had to be judged "under the circumstances as a reasonable person would believe them to be." A.R.S. § 13-406. And Alvarez testified that he had not seen M.W. swing at the officer. In light of this testimony, the fact of M.W.'s attempted punch could not have informed his belief as to whether he needed to protect M.W. from the officers. Therefore, M.W.'s answer to the question would have had no relevance as to whether his actions were justified "under the circumstances as a reasonable person"—seeing what Alvarez saw—"would believe them to be." § 13-406. Consequently, Alvarez has not met his burden to show that M.W.'s privileged testimony would have been "material and favorable to his defense," and therefore cannot demonstrate he was denied his right to compulsory process. Rosas-Hernandez, 202 Ariz. 212, ¶ 10, 42 P.3d at 1181; see Abbas, 74 F.3d at 512; Fuller, 143 Ariz. at 574 n.2, 694 P.2d at 1188 n.2.
¶18 Alvarez further argues the trial court should have granted M.W. use immunity directly and cites Sanchez-Equihua, 235 Ariz. 54, 326 P.3d 321, in support of his argument. But in that case, we did not conclude the court had authority to grant use immunity to a witness, and the case does not support his argument. See id. at ¶¶ 16, 19, 28. Further, Arizona has not recognized judicially granted use immunity as a remedy for violations of the right to compulsory process caused by prosecutorial misconduct. See Fisher, 141 Ariz. at 243, 686 P.2d at 766 (indicating court's inherent authority to immunize witness would exist only under "'clearly exculpatory' and 'essential' testimony" exception, not prosecutorial misconduct exception), quoting Virgin Islands v. Smith, 615 F.2d 964, 972 (3d Cir. 1980).
In Fisher, our supreme court recognized the "clearly exculpatory and essential testimony" exception articulated by the Third Circuit in Smith. 141 Ariz. at 243, 686 P.2d at 766. In Smith, the Third Circuit held that a trial court has the inherent authority to immunize a witness under certain conditions. 615 F.2d at 972-73. Recently, however, the Third Circuit abrogated its Smith decision by abandoning judicially granted use immunity. United States v. Quinn, 728 F.3d 243, 257 (3d Cir. 2013). Given the Third Circuit's modification of the Smith exception, and Arizona case law that has rejected judicial use immunity, we question whether judicial use immunity is ever a proper remedy for the violation of the right to compulsory process. See Jeffers, 135 Ariz. at 424, 661 P.2d at 1125 (stating, a year before the Fisher decision, that Arizona "decline[s] to follow the Third Circuit's lead in the [Smith] case" with regard to judicial use immunity); State v. Kasten, 170 Ariz. 224, 228, 823 P.2d 91, 95 (App. 1991) (citing Jeffers as support for stating that "[t]he law is clear in Arizona that a trial court has no authority to grant immunity"). Nevertheless, we need not decide the propriety of judicial use immunity in this case because the Smith exception is not at issue here.
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¶19 Alvarez further argues, however, that "[a]s an alternative to granting [M.W.] use immunity," the trial court should have precluded the state's witnesses from testifying that they saw M.W.'s attempt to punch Officer Higginbotham. And he appears to argue that failure to limit this testimony, in light of M.W.'s invocation of the Fifth Amendment, violated his Sixth Amendment right to confront witnesses against him. He concedes he did not request this limitation on testimony below and has waived review of this claim for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005).
¶20 To support this alternative claim, Alvarez does not cite any case law suggesting that a trial court must limit testimony by state witnesses when a defendant is unable to elicit testimony from his own witness because that witness invokes the Fifth Amendment. Instead, he lists two cases that concern state witnesses who invoke the Fifth Amendment when cross-examined. See State v. Robinson, 125 Ariz. 107, 608 P.2d 44 (1980); State v. Dunlap, 125 Ariz. 104, 608 P.2d 41 (1980). But he fails to explain their relevance to a case in which the defense witness limits her own testimony by invoking a privilege. Consequently, he has failed to meet his burden to show that the trial court committed any error, fundamental or otherwise, when it did not limit sua sponte the state's witnesses from testifying about M.W.'s attempt to punch Officer Higginbotham. See Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d at 607; see also State v. Tarkington, 218 Ariz. 369, n.1, 187 P.3d 94, 95 n.1 (App. 2008) (argument waived if not adequately developed).
Voluntary Intoxication Instruction
¶21 Alvarez also argues the trial court erred in giving the jury an instruction on voluntary intoxication because the record contained insufficient evidence to support the instruction. "[W]e review a trial court's decision to give a jury instruction for an abuse of discretion." State v. Williams, 706 Ariz. Adv. Rep. 8, ¶ 6 (Ct. App. Feb. 12, 2015).
¶22 In its final jury instructions, the trial court included the following instruction after explaining the relevant mental states for the crime of aggravated assault:
"Voluntary intoxication" means intoxication caused by the knowing use of drugs, toxic vapors or intoxicating liquors by a person, the tendency of which to cause intoxication the person knows or ought to know.Alvarez objected on the grounds that the record did not support the instruction, but the court overruled the objection. The court found that "testimony . . . suggests . . . either the defendant or [M.W.] may have been impaired[, and] a juror, in reading over the instructions, could think that . . . if they were intoxicated or impaired, that might somehow negate the mens rea necessary for the offenses that have been alleged."
It is no defense that the defendant is unaware of or disregards the risk solely because of voluntary intoxication.
¶23 For an evidence-based instruction, the record need only demonstrate some evidentiary basis for the instruction. State v. Romanosky, 176 Ariz. 118, 120, 859 P.2d 741, 743 (1993); cf. State v. King, 225 Ariz. 87, ¶ 14, 235 P.3d 240, 244 (2010) (in justification context, record need only contain "slightest evidence" that defendant acted in self-defense to warrant self-defense instruction); State v. Spencer, 176 Ariz. 36, 42, 859 P.2d 146, 152 (1993) (lesser-included offense instruction required when "some evidence" exists of commission of lesser crime). When reviewing whether sufficient evidence exists to support an instruction, "[w]e defer to the trial court's assessment of the evidence." State v. Larin, 233 Ariz. 202, ¶ 8, 310 P.3d 990, 994 (App. 2013).
¶24 Alvarez contends the only possible evidence that supported the instruction was testimony from a bystander that Alvarez and M.W. were "'not acting normal'" and were acting "'weird.'" Yet the record contains further evidence of possible intoxication. Officer Jusling testified that Alvarez's "shirt was off" and that he had seemed "pretty upset" and "pretty agitated" when he had first come into contact with him. Both officers witnessed Alvarez putting his safety at risk by jaywalking in heavy traffic and causing vehicles to slam on their brakes in order to avoid him. The bystander testified not only that Alvarez was "kind of acting a little strange," "sounded out of the ordinary," and was not "acting in [his] right state of [mind]," but that she saw him jaywalk across the road four times during the twenty minutes in which she had observed him. And finally, a third TPD officer, who had arrived after Alvarez's arrest, observed that he was in the back of the patrol car "very agitated . . . moving around constantly, twitching, [and] yelling out the window."
¶25 Given the testimony from multiple witnesses regarding Alvarez's strange and unsafe behavior, the trial court did not err in finding that evidence in the record supported a voluntary intoxication instruction. See Romanosky, 176 Ariz. at 120, 859 P.2d at 743. Thus, the court did not abuse its discretion in giving the instruction. See Williams, 706 Ariz. Adv. Rep. 8, ¶ 6.
¶26 Moreover, the trial court instructed the jury that it could disregard any instructions that were not supported by the evidence. And we presume the jurors followed the court's instructions and disregarded the voluntary intoxication instruction if they did not believe the evidence suggested Alvarez had been intoxicated. See State v. Manuel, 229 Ariz. 1, ¶ 24, 270 P.3d 828, 833 (2011) ("Jurors are presumed to follow the court's instructions."). Thus, any error in giving the instruction would have been harmless beyond a reasonable doubt. See State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993) ("Error . . . is harmless if we can say, beyond a reasonable doubt, that the error did not contribute to or affect the verdict.").
Disposition
¶27 For the foregoing reasons, we affirm Alvarez's conviction and sentence.