Opinion
No. 1 CA-CR 14-0349
10-22-2015
STATE OF ARIZONA, Appellee, v. FRANCISCO CORNELIO BEJINEZ, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender, Phoenix By Mikel Steinfeld Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR 2009-159528-001
The Honorable Pamela Hearn Svoboda, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender, Phoenix
By Mikel Steinfeld
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Jon W. Thompson delivered the decision of the Court, in which Judge Donn Kessler and Judge Samuel A. Thumma joined. THOMPSON, Judge:
¶1 Francisco Cornelio Bejinez appeals his convictions and sentences for one count of possession of dangerous drugs for sale, one count of sale or transportation of dangerous drugs, and one count of possession of drug paraphernalia. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 During an unrelated investigation, Officer Jones noticed Bejinez's vehicle exhibiting suspicious behavior by attempting to avoid the area where Officer Jones was located. Officer Jones then had his partner, who was in an unmarked vehicle, follow Bejinez. After his partner informed him that Bejinez committed a civil traffic violation, Officer Jones followed Bejinez into a parking lot. There, Bejinez exited his vehicle, left the door open, and began to walk away. As Officer Jones approached Bejinez's vehicle, he noticed one small bag of methamphetamine on the driver's seat. The officers found ten additional bags of methamphetamine inside the vehicle, $2358.00 on Bejinez, and Arizona and Illinois license plates both registered to Bejinez's vehicle.
¶3 The state charged Bejinez with one count of possession of dangerous drugs for sale, a class two felony; one count of transportation of dangerous drugs, a class two felony; and one count of possession of drug paraphernalia, a class six felony. After trial, the jury found Bejinez guilty on all three counts and that Bejinez committed the offenses for pecuniary gain. The trial court sentenced Bejinez to a mitigated, concurrent term of five years for possession of dangerous drugs for sale and transportation of dangerous drugs, with presentence incarceration credit of 208 days. The trial court ordered Bejinez to serve a two-year probation sentence for possession of drug paraphernalia.
¶4 Bejinez timely appeals his convictions and sentences. 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), 13-4031 (2010), and -4033(A) (2010).
DISCUSSION
¶5 Bejinez argues that the prosecutor committed misconduct in opening statement and closing argument by stating that Bejinez "made a living selling drugs" and that "Bejinez believed the jury would let him go free because there was no direct evidence." Bejinez contends that these comments fundamentally impacted his right to a fair trial by forcing him to address arguments not drawn from the evidence and urged the jury to convict him based on these assertions.
¶6 Because Bejinez did not object to the prosecutor's remarks in the opening statement or closing argument, we review solely for fundamental error. State v. Roque, 213 Ariz. 193, 228, ¶ 154, 141 P.3d 368, 403 (2006). To prevail, Bejinez must establish that fundamental error exists and that the error prejudiced him. State v. Henderson, 210 Ariz. 561, 567, at ¶ 20, 115 P.3d 601, 607 (2005). Fundamental error is error that goes "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 possible have received a fair trial." Id. at ¶ 19 (quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984)). "Reversal on the basis of prosecutorial misconduct requires that the conduct be so pronounced and persistent that it permeates the entire atmosphere of the trial." State v. Hughes, 193 Ariz. 72, 79, ¶ 26, 969 P.2d 1184, 1191 (1998) (internal quotation marks omitted) (citations omitted).
¶7 During the opening statement, the prosecutor said the following:
Ladies and gentlemen, this case is about a drug dealer. A small-time drug dealer who is trying to make a profit selling methamphetamine. He thinks because no one saw him sell the methamphetamine, no one saw him in the act of the transaction and receiving money, for methamphetamine, you will let him go free. Your verdict will decide if that is true.The prosecutor's closing argument repeated the opening statement:
When I started this morning, I said this case about is about [sic] a drug dealer. It is aboutBejinez argues that the prosecutor committed fundamental error by: 1) arguing inferences and conclusions in the opening statement; 2) misstating the evidence; 3) vouching; 4) appealing to the passions of the jury; and 5) commenting on Bejinez's constitutional right to remain silent. Bejinez argues this conduct constituted reversible error. We disagree.
a small town drug dealer, a pager dealer making a living selling methamphetamine.
And I said because no one saw him actually sell the methamphetamine, to get the methamphetamine someone else received money, he thinks you will let him go free. Your verdict will decide if that is true.
A. Inferences and Conclusions During Opening Statement
¶8 Bejinez first argues that the prosecutor's opening statement was argumentative and encouraged the jury to return a verdict to convict him. Bejinez attempts to distinguish State v. Bible, 175 Ariz. 549, 602, 858 P.2d 1152, 1205 (1993), asserting that here, the inferences and conclusions argued by the prosecutor during opening statements were not supported by evidence later admitted during trial. However, as we note hereinafter, even if we assume the prosecutor's opening statement improperly argued inferences and conclusions to be drawn from the evidence, it did not prejudice Bejinez because the statements were supported by evidence at trial. See id., 175 Ariz. at 602, 858 P.2d at 1205 (holding that there was no reversible error when the inferences and conclusions made during opening statement were permissible during closing argument). Therefore, any alleged error in the prosecutor's opening statement did not amount to reversible error.
B. Misstatement of the Evidence
¶9 We also reject Bejinez's argument that the prosecutor misstated the evidence during opening statement and closing argument by asserting that Bejinez was "a pager dealer making a living selling methamphetamine." Officer Jones testified that a "pager dealer" is term used to refer to a "street-level drug dealer" who sells small quantities of drugs. Officer Jones also testified that the quantity and packaging of the methamphetamine, Bejinez's lack of a device for using the methamphetamine, the manner in which Bejinez kept his money, and the fact that Bejinez's cell phone was constantly ringing were consistent with items and characteristics of individuals who sell methamphetamine. Accordingly, the record supports the prosecutor's statement.
¶10 The record also supports the prosecutor's assertion during closing argument that Bejinez "believed the jury would let him go free" because no one witnessed Bejinez make a transaction. During his cross-examination, counsel for Bejinez repeatedly asked witnesses whether they actually saw him sell methamphetamine. A reasonable inference from this line of questioning is that Bejinez relied on the lack of direct evidence that he participated in a transaction to sell methamphetamine to establish that he was not guilty. Accordingly, the prosecutor did not misstate the evidence during closing arguments. See State v. Morris, 215 Ariz. 324, 336, ¶ 51, 160 P.3d 203, 215 (2007) ("Prosecutors have wide latitude in presenting their arguments to the jury" and may argue "all reasonable inferences from the evidence.") (internal quotations and citations omitted).
C. Vouching During Closing Argument
¶11 Bejinez relies on State v. Leon, 190 Ariz. 159, 945 P.2d 1290 (1997) to argue that the prosecutor improperly vouched during closing argument by asserting that Bejinez made a living selling drugs and believed the jury would let him go free. Bejinez also bases his vouching argument by again alleging a lack of evidentiary support for the State's assertions. In Leon, unlike this case, the court sustained objections to the state's closing argument because the state specifically told the jury that there was inadmissible evidence that they did not get to hear. Id., 190 Ariz. at 161-62, 945 P.2d at 1292-93. Here, the prosecutor did not tell the jury that there was evidence outside of the record. Moreover, as previously discussed, the record supports the prosecutor's statements in opening statement and closing argument. We find no error, much less fundamental error.
D. Appealing to the Passions of the Jury
¶12 Next, Bejinez argues that the prosecutor improperly appealed to the passions of the jury by ascribing to Bejinez the belief that because there were no observed transactions, the jury would "let him go free" and concluded, "your verdict will decide if that is true." He argues that this statement communicated a message that the jury has a "duty to perform" and they should send Bejinez a message. In support, he relies on Viereck v. U.S., 318 U.S. 236 (1943). In Viereck, the government alluded to the nation's then-current participation in World War II, stating, "this is war, harsh, cruel, murderous war." Id. at 247, n.3. The government told the jury that it had a duty to perform, stating that "the American people are relying upon you ladies and gentlemen for their protection against this sort of crime." Id. The Supreme Court found this argument improper because the government "indulged in an appeal wholly irrelevant to any facts or issues in the case, the purpose and effect of which could only have been to arouse passion and prejudice." Id. at 247-48.
¶13 Here, the prosecutor did not refer to any irrelevant facts or inflame the jurors' passions. Instead, the prosecutor reminded the jurors that their role in the case was to determine whether Bejinez was guilty or innocent regardless of what Bejinez believed. Nor did the prosecutor encourage the jury to send Bejinez a message. Moreover, this statement did not permeate the entire trial. We find no error no less fundamental error.
E. Comments on Bejinez's Refusal to Testify
¶14 Lastly, we reject Bejinez's argument that by ascribing a belief to him, the prosecutor "pointed out" that Bejinez did not testify. Here, the prosecutor's assertion that Bejinez "believed the jury would let him go free" does not relate to Bejinez's failure to testify, but rather to Bejinez's position as the defendant contesting the charges against him. Thus, the prosecutor did not comment on Bejinez's failure to testify, and we find no error.
CONCLUSION
¶15 Because there was no error, let alone fundamental error, in the prosecutor's opening statement and closing argument, we affirm the judgment of the superior court.