Opinion
No. 1 CA-CR 14-0192
04-02-2015
STATE OF ARIZONA, Appellee, v. ISAIAH LEWIS BUCK, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By W. Scott Simon Counsel for Appellee White Law Offices, PLLC, Flagstaff By Wendy F. White 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Coconino County
No. S0300CR201200828
The Honorable Mark R. Moran, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By W. Scott Simon
Counsel for Appellee
White Law Offices, PLLC, Flagstaff
By Wendy F. White
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in which Judge Patricia A. Orozco and Chief Judge Diane M. Johnsen joined. THUMMA, Judge:
¶1 Isaiah Lewis Buck appeals his convictions and resulting probation grant for aggravated assault of a police officer, resisting arrest and disorderly conduct. Finding no reversible error, Buck's convictions and consequences are affirmed.
FACTS AND PROCEDURAL BACKGROUND
On appeal, this court views the evidence in the light most favorable to sustaining the conviction and resolves all reasonable inferences against the defendant. State v. Karr, 221 Ariz. 319, 320 ¶ 2, 212 P.3d 11, 12 (App. 2008).
¶2 A grand jury indicted Buck, William James Butler III, Brandon Chapple and Kenneth Chapple on charges of aggravated assault, resisting arrest and disorderly conduct arising out of a bar fight. Buck, Butler, and Brandon Chapple were tried together.
¶3 Police officers attempting to break up a fight after bars closed in downtown Flagstaff were attacked by members of the crowd. Among other things, Butler shoved Officer R.T. and later hit him on the head. While Officer C.S. was attempting to arrest Kenneth Chapple, Buck jumped on the officer's back and pressed his arm around the officer's face, knocking him to the ground. When Officer K.W. attempted to arrest Buck, Buck repeatedly swung at him and, as a result, C.S. used an electronic stun gun on Buck. Buck continued to swing at K.W. as K.W. attempted to handcuff Buck. Brandon Chapple punched K.W. in the head while he was attempting to handcuff Buck, momentarily knocking the officer off balance. Another officer who witnessed the assault used an electronic stun gun on Brandon Chapple.
Initials are used to protect the victims' privacy. State v. Maldonado, 206 Ariz. 339, 341 n.1 ¶ 2, 78 P.3d 1060, 1062 n.1 (App. 2003).
¶4 Buck denied jumping on C.S.'s back or swinging at K.W., and testified that C.S. used an electronic stun gun on him, and K.W. repeatedly hit him with a flashlight while he was sitting on Buck's back, all without provocation.
¶5 A jury convicted Buck of aggravated assault of C.S., resisting arrest and disorderly conduct, but could not reach a unanimous verdict on the aggravated assault charge where K.W. was the listed victim. For the aggravated assault and resisting arrest convictions, the superior court placed Buck on 18 months' probation with 30 days in jail; for the disorderly conduct conviction, Buck was given credit for time served. Buck timely appealed and this court has jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031 and -4033(A) (2015).
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated. Butler's convictions and sentences were affirmed in a separate memorandum decision. See State v. Butler, No. 1 CA-CR 14-0193, 2015 WL 673717 (Ariz. App. Feb. 17, 2015).
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DISCUSSION
I. Evidentiary Error.
¶6 Buck claims error when, in responding to a question regarding whether an officer was referring to Kenneth or Brandon Chapple, the officer testified: "I do not recall. He's not here today. He was the gentlemen that took a plea agreement." Buck did not object to this testimony at trial and this court's review on appeal is limited to fundamental error. See Ariz. R. Crim. P. 21.3(c); State v. Henderson, 210 Ariz. 561, 567-68 ¶¶ 19-20, 115 P.3d 601, 607-08 (2005). "Accordingly, [the defendant] 'bears the burden to establish that (1) error exists, (2) the error is fundamental, and (3) the error caused him prejudice."' State v. James, 231 Ariz. 490, 493 ¶ 11, 297 P.3d 182, 185 (App. 2013) (citations omitted). Buck has not met his burden here.
¶7 As a general rule, if two or more defendants are charged with the same criminal offense, the fact that one has pled guilty is not admissible against the other. See State v. McDonald, 117 Ariz. 159, 161, 571 P.2d 656, 658 (1977) (finding testimony by accomplice that he had pled guilty to same charge with which defendant had been charged was harmless error). Even assuming that this reference to a plea reached by a codefendant charged with unidentified criminal offenses violated this rule, Buck has failed to show that the error was fundamental. The testimony that Kenneth Chapple had pled guilty to unidentified charges was clearly inadvertent, and was not offered as substantive evidence of Buck's guilt. The State did not refer to the unsolicited testimony again during trial. No mention was made of the charges filed against Kenneth Chapple or the charge(s) to which he pled guilty. On this record, the error was not fundamental.
¶8 Nor has Buck met his burden to show that the mention of a codefendant's plea agreement was prejudicial. The superior court instructed the jury that each defendant was "entitled to have the jury determine the verdict as to each of the crimes charged based upon that defendant's own conduct and from the evidence which applies to that defendant, as if that defendant were being tried alone." The jury is presumed to follow this instruction. See State v. LeBlanc, 186 Ariz. 437, 439, 924 P.2d 441, 443 (1996). Buck has failed to show that a reasonable jury could have reached a different result absent this isolated reference to Kenneth Chapple's plea agreement. Accordingly, any error was neither fundamental nor prejudicial. II. Prosecutorial Misconduct.
¶9 Buck argues the prosecutor engaged in misconduct during closing argument by (1) appealing to the jury's fears in arguing that "strong public policy" makes it "a felony to assault an officer while he's trying to do his job," because "we don't want Joe Bar Closer out there making that decision and using force against police officers" and (2) vouching in arguing that the jury should consider the charging decisions as supporting the officers' credibility, because "the police didn't try to say things that weren't true." Because Buck did not press these objections at trial, the review is for fundamental error. See Henderson, 210 Ariz. at 568, ¶ 22, 115 P.3d at 608.
¶10 Determining whether a prosecutor's remarks are improper requires considering whether the remarks called to the jury's attention matters they would not be justified in considering and the probability that, under the circumstances, the jurors were influenced by such remarks. State v. Jones, 197 Ariz. 290, 305 ¶ 37, 4 P.3d 345, 360 (2000). "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, 335 ¶ 46, 160 P.3d 203, 214 (2007) (citation 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.'" Morris, 215 Ariz. at 335 ¶ 46, 160 P.3d at 214 (citation omitted).
¶11 Buck has not shown that the prosecutor improperly appealed to the jurors' fears and prejudices by arguing that public policy supports the prohibition against assaulting a police officer. In considering whether argument is misconduct, this court "looks at the context in which the statements were made." State v. Nelson, 229 Ariz. 180, 189 ¶ 39, 273 P.3d 632, 641 (2012). The indictment charged that Buck assaulted C.S. when he jumped on the officer's back while the officer was attempting to arrest Kenneth Chapple; assaulted K.W. by swinging at him; resisted arrest and engaged in disorderly conduct. Buck denied engaging in the charged conduct and defended on the ground that the "police engaged in the use of excessive and unjustified force" and "he was an innocent bystander swept up in the officers' overly zealous conduct." The superior court instructed the jury that whether an attempted arrest was legally justified was irrelevant in deciding whether a defendant resisted arrest. The court also instructed the jury, however, that an officer must not use "unnecessary or unreasonable force" in arresting a person, and the state bore the burden of proving the absence of self-defense or defense of third persons against another's use of unlawful physical force. In this context, Buck has not shown that the prosecutor's argument was an appeal to the jurors' fears and prejudices. Instead, it appears to have conveyed to the jurors the public policy underlying the legal framework within which they were to evaluate the evidence.
¶12 Nor has Buck shown the prosecutor's argument that the jury should consider the charging decisions as supporting the officers' credibility was fundamental error resulting in prejudice. There are "two forms of impermissible prosecutorial vouching: (1) where the prosecutor places the prestige of the government behind its witness; [and] (2) where the prosecutor suggests that information not presented to the jury supports the witness's testimony." State v. King, 180 Ariz. 268, 276-77, 883 P.2d 1024, 1032-33 (1994) (citation omitted). In context, the argument that "the police didn't try to say things that weren't true" referred to specific instances in which an officer was unable to say with certainty who had attacked him, another officer testified that one of the codefendants had not resisted arrest and a third officer released a person he had taken into custody after determining he had not done anything illegal. By arguing that the charging decisions supported the officers' credibility, the prosecutor placed the prestige of the government behind the police witnesses by making an assertion that was not supported by any evidence, thereby arguably running afoul of both prongs of King. 180 Ariz. at 276-77, 883 P.2d at 1032-33.
¶13 The jury was instructed, however, that arguments by counsel are not evidence, and that it should consider only the evidence admitted at trial in reaching its verdicts. Absent any indication in the record that the jury failed to heed this instruction (and there is none), the jury is presumed to have followed this instruction. See LeBlanc, 186 Ariz. at 439, 924 P.2d at 443. Accordingly, Buck has failed to meet his burden to show that, absent this argument, the jury could have reached a different verdict, as required to show fundamental error resulting in prejudice.
CONCLUSION
¶14 Finding no reversible error, Buck's convictions and resulting consequences are affirmed.