Opinion
No. 1 CA-CR 13-0782
02-12-2015
STATE OF ARIZONA, Appellee, v. MARILYN COLLEEN CONTRERAS, Appellant.
COUNSEL Attorney General's Office, Phoenix By Terry Crist III Counsel for Appellee Office of the Legal Defender's Office, Phoenix By Cynthia Dawn Beck 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2012-158469-001
The Honorable Richard L. Nothwehr, Commissioner
AFFIRMED
COUNSEL Attorney General's Office, Phoenix
By Terry Crist III
Counsel for Appellee
Office of the Legal Defender's Office, Phoenix
By Cynthia Dawn Beck
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Jon W. Thompson delivered the decision of the Court, in which Judge Donn Kessler and Judge Kent E. Cattani joined. THOMPSON, Judge:
¶1 Defendant, Marilyn Coleen Contreras, timely appeals from her conviction on one count of forgery, a Class 4 felony. She argues: (1) that the trial court erred by admitting bank records under the business records exception to the hearsay rule, and (2) that the prosecutor violated her due process rights when he elicited evidence that she invoked her Fifth Amendment rights when questioned by police. This court has jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (1992), 13-4031 (2010) and -4033(A)(1) (2010). For reasons set forth below, we affirm.
FACTS AND PRCEDURAL HISTORY
We view the facts in the light most favorable to sustaining the jury's verdict and resolve all reasonable inferences against defendant. State v. Vendever, 211 Ariz. 206, 207 n.2, 119 P.3d 473, 474 n.2 (App. 2005).
¶2 On March 24, 2012, while reviewing checks drawn on his business account that week, the victim noticed that check number 1253 in the amount of $500 had been cashed and made out to a person named Marilyn Contreras. The victim did not know anyone by that name and had not made out the check. He printed a copy of the check from his bank account and observed that someone had attempted to replicate his signature. He went through his checkbook looking for the place where the check's number would fall sequentially and realized that an entire sheet of checks was missing.
¶3 The victim reported the matter to the Phoenix Police Department and provided them with the printed copy of the forged check. Detective Rohkohl, who was assigned the case, subpoenaed the JPMorgan Chase Bank and obtained information on Contreras's account that established that, on March 21, 2012, at a branch on South Central in Phoenix, Contreras had deposited $500 into her account and immediately withdrawn $200. The bank records established that Contreras continued to draw on the account for various expenditures. Chase also provided a surveillance video of the ATM at the branch for that date that showed a woman, later identified by Detective Rohkohl as Contreras, inserting a slip of paper resembling a check at approximately 11:33 a.m. Detective Rohkohl printed seven frames of the video of the woman as photographs. Thereafter, Detective Rohkohl contacted Contreras at her place of work and arrested her. When she was arrested, Contreras denied any knowledge of the check and denied that she was the woman in the photographs.
¶4 The State charged defendant with one count of forgery for knowingly possessing the forged check with the intent to defraud. At trial, Contreras testified that she received the check from a person named Augustine who asked her to cash it for him because he did not have a bank account. She further testified that she did not realize at the time that the check was forged. At the conclusion of the trial, the jury found Contreras guilty of forgery as charged.
DISCUSSION
Admission of Exhibit # 2
¶5 Contreras argues that the trial court erred in admitting the State's Exhibit 2, the packet containing her account information that J.P. Morgan Chase sent Detective Rohkohl, because it does not fall within any recognized hearsay exception. Contreras does not challenge the authenticity or accuracy of the documents themselves; she challenges the court's finding that they remained self-authenticating due to Detective Rohkohl's actions.
¶6 We review a trial court's decision to admit or exclude evidence, including rulings involving the application of the hearsay rules, for an abuse of discretion. State v. Forde, 233 Ariz. 543, 564, ¶ 77, 315 P.3d 1200, 1221 (2014); State v. Murray, 162 Ariz. 211, 214, 782 P.2d 329, 332 (App. 1989). We will not reverse a trial court's rulings on issues of relevance and admissibility of evidence absent a clear abuse of that discretion. State v. Amaya-Ruiz, 166 Ariz. 152, 167, 800 P.2d 1260, 1275 (1990). An abuse of discretion occurs only when "the reasons given by the court for its action are clearly untenable, legally incorrect, or amount to a denial of justice." State v. Chapple, 135 Ariz. 281, 297 n.18, 660 P.2d 1208, 1224 n.18 (1983). Under an abuse of discretion standard of review, we uphold a trial court's decision if there is any reasonable evidence in the record to sustain it. State v. Butler, 230 Ariz. 465, 472, ¶ 28, 286 P.3d 1074, 1081 (App. 2012) (citation omitted). We find no abuse of discretion.
¶7 At trial, at the State's request, the trial court admitted the contents of Exhibit 2 during Detective Rohkohl's testimony pursuant to Arizona Rules of Evidence 803 and 902. When Detective Rohkohl opened the sealed packet of material before the jury, she testified that of the twenty-six pages currently in the packet, only seventeen pages were originally contained in the FedEx packet that she received from Chase. Detective Rohkohl explained that she had added eight pages, which consisted of still photographs she printed from the surveillance video.
¶8 Defense counsel objected; and the trial court rescinded its order admitting Exhibit 2, dismissed the jury, and held a hearing. During an offer of proof, Detective Rohkohl testified that the FedEx package she received from Chase contained the surveillance video and seventeen unstapled pages. She stated that she had added the still photographs because they came from the surveillance video and she "wanted to keep everything together." Although the detective was not certain of the order of the seventeen pages when she received them, or if she might have altered their order, she was certain that the seventeen pages and the surveillance video were the sole contents of the FedEx packet when she received it. She further stated that she only added the photographs that she printed off the surveillance video and did not otherwise alter the contents of anything else contained in the packet.
¶9 The record establishes that the packet contained a cover letter from a Chase Bank "Document Review Specialist" stating "in response to your request, enclosed please find copies of account records regarding the above-referenced matter." The letter referenced Rohkohl's subpoena and that the materials were "In the Matter of . . . Marilyn Contreras." A second page headed "Inventory Listing" contained a list of the remaining contents as: copy of checking signature card; copies of Statements for the time frame of 02/09/2012 - 04/09/2012; copy of deposited item; and copy of ATM video. The next page was a notarized affidavit by the Document Review Specialist dated 25 July 2012, which avowed in relevant part that, "[b]ased on his knowledge of JPMorgan Chase bank, N.A.'s business records practices and procedures, the enclosed records are a true and correct copy of the original documents kept by JPMorgan Chase Bank, N.A. in the ordinary course of business." The pages that followed consisted of a copy of a signature card signed by Contreras and ten pages that contained a summary of transactions on Contreras's account between February 9 and April 9, 2012. That was followed by a two-page copy of Detective Rohkohl's subpoena. The packet also contained two pink, blank pages that divided the account summary pages from the copy of the signature page and the copy of the subpoena. Thus, the only "change" to the packet sent from Chase was the addition of the seven photographs taken from the ATM video that was included in the packet sent from Chase.
¶10 The trial court stated that, because the reliability of the packet had been "compromised," it had an obligation pursuant to Arizona Rules of Evidence 1007 and 1008 to determine what was in the original contents of the Chase packet. It acknowledged that, if the packet met the requirements of Arizona Rule of Evidence 803(6), it would be admissible. The court found that there "continue[d] to be sufficient information to support the admissibility of Exhibit 2" and admitted it into evidence at trial. The court also admitted the seven photographs and a copy of the check that initially was part of the FedEx packet into evidence as a separate Exhibit 2.001.
Rule 803(6) provides that records of a regularly conducted activity are not excluded as hearsay if: "(A) the record was made at or near the time by - or from information transmitted by - someone with knowledge; (B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) making the record was a regular practice of that activity; (D) all of these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902 (11) or (12) or with a statute permitting certification; and (E) neither the source of the information nor the methods or circumstances of preparation indicate a lack of trustworthiness." Ariz. R. Evid. 803 (6).
¶11 Contreras maintains that, because the detective added some of her documents to the original packet, the evidence in Exhibit 2 was no longer "self-authenticating" and thus inadmissible under the exception to the hearsay rule. She contends that because the certification contained with the packet was not attached to any documents, and because it does not indicate which documents were being certified, there was insufficient evidence for the trial court's determination.
¶12 We do not agree. The affidavit included in the packet from Chase clearly meets the requirements of Rule 902(11) with regards to the enclosed materials. While the pages may not be stapled together or sequentially numbered, it is sufficiently clear from both the affidavit and the index provided what items of information were "enclosed" in the original packet.
Rule 902(11) provides that self-authenticating and admissible evidence includes a: "Certified Domestic Record of a Regularly Conducted Activity. The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a statute or a rule prescribed by the Supreme Court." Ariz. R. Evid. 902.
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¶13 Contreras also argues that Detective Rohkohl's testimony was insufficient to establish what was enclosed in the packet, and that the trial court should not have considered it. However, nothing in the rules of evidence precluded the trial court from considering her testimony in addition to the information contained in the packet it had before it. Detective Rohkohl was not testifying to authenticate the packet or to lay foundation as to the nature of the documents contained therein; she was merely clarifying what was not part of the packet of materials that she received. It was still up to the trial court to determine if the documents at issue met the criteria. See Ariz. R. Evid. 1008 (it is for trial court to determine whether proponent meets factual conditions for admitting evidence of contents of a writing or recording). Insofar as the trial court believed Detective Rohkohl's assertion that, other than for the addition of the photographs, she had not altered the contents of the packet, we defer to the trial court's acceptance of her avowal as credible. See State v. Olquin, 216 Ariz. 250, 252, ¶ 10, 165 P.3d 228, 230 (App. 2007) (stating that we defer to the trial court's assessment of witness credibility because it is in the best position to make such a determination). Thus, the trial court did not abuse its discretion by considering Detective Rohkohl's testimony in addition to the other evidence it had before it in determining the admissibility of Exhibit 2 under Rule 803(6).
¶14 Sufficient evidence supports the trial court's determination that the documentation contained in Exhibit 2 was certified by the affidavit and an authenticated business record admissible under Rule 803(6). Because the evidence was properly admitted, we decline to address Contreras's argument that the trial court erred in denying her Rule 20 motion based on the insufficiency of the evidence to support her conviction. Contreras's argument on insufficiency of the evidence is based solely on her argument that Exhibits 2 and 2.001 were inadmissible. Since we have concluded that the court properly admitted those documents, we reject Contreras's argument that the court should have granted her Rule 20 motion.
Invocation of Right to Attorney
¶15 On appeal, Contreras argues for the first time that the State violated her Fourteenth Amendment right to due process when it impermissibly elicited testimony from her and Detective Rohkohl about the fact that Contreras invoked her right to counsel. Contreras acknowledges that, because she did not raise this argument at trial, our review is for fundamental error only. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Fundamental error is "error 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." Id. (citation omitted). Under this standard, the burden rests squarely with the defendant to establish that fundamental error exists and that the error caused defendant prejudice. Id. at ¶ 20, 115 P.3d at 607.
¶16 However, before we engage in fundamental error review, we must first find that some error occurred. State v. Lavers, 168 Ariz. 376, 385, 814 P.2d 333, 342 (1991). We find no error in this case.
¶17 Contreras testified at trial that she recognized the victim's check and that she deposited that check into her bank account. However, she denied knowing that the check was fraudulent and claimed that Augustine Garcia, her step-brother's father, gave her the check to cash for him because he did not have a bank account. During cross-examination, Contreras explained that she did not tell Detective Rohkohl about Garcia when she was first questioned on November 14 because she had no reason at that time to believe that the check was fraudulent. That was also the reason she told the detective that the check "didn't look familiar" to her. Contreras testified that she only remembered after "being in jail for 14 hours" and having "time to think," but that, when she contacted Detective Rohkohl to tell her "everything you need to know," Detective Rohkohl put her off stating, "there was nothing in her hands that [Rohkohl] could do about it anymore."
¶18 The prosecutor continued to question Contreras as to whether she told Detective Rohkohl that she did not deposit the check. Contreras responded that Detective Rohkohl only asked her "two basic questions" before arresting her and never asked her if she had deposited the check in her account. When the prosecutor challenged that assertion, the following exchange occurred:
[Prosecutor] Well, there's another question that the detective asked you, in addition to whether you recognized the check, but whether you deposited the check, and you said no; isn't that right?The prosecutor objected to her response, stating it was a "yes or no answer," however the trial court allowed her answer to stand. Defense counsel raised no objections.
[Contreras]: I don't recall her ever asking me if I deposited it, because if she would have asked me that, I would have said yes. But, I did tell her when she showed me the picture and I said it doesn't look like me, and I said, "Don't I have a right to an attorney?"
¶19 On redirect examination, defendant again resolutely testified that it was never her intent to lie to the detective and that she had attempted to contact Detective Rohkohl after getting out of jail to tell her that she remembered where the check came from and to "tell her everything she needed to know."
¶20 The prosecutor recalled Detective Rohkohl to the stand in rebuttal. The detective testified that she had shown Contreras a copy of the check and specifically asked her whether she recognized it and whether she had deposited it into her account. Contreras informed her that "she did not recognize the check and it did not look like her writing," and that she had not deposited it into her account. Detective Rohkohl also testified that, when she showed Contreras one of the still photographs and asked if that was her in the picture, Contreras stated it "didn't look like her." The detective stated that she "then showed [Contereras] a couple of other still photos, and she stopped answering my questions."
¶21 During cross-examination, the following exchange occurred:
[Defense Counsel]: Did [Contreras] later attempt to contact you?The prosecutor objected, and a bench conference was held off the record. When trial resumed on the record, the following exchange took place:
[Defense Counsel]: Again, Detective Rohkohl, did Miss Contreras later contact you?
[Rohkohl]: She did.
[Defense Counsel]: No further questions.
¶22 On redirect, the following exchange occurred, after which the State rested.
[Prosecutor]: Did the Defendant invoke her rights?
[Rohkohl]: Yes.
[Prosecutor]: Is that the reason you couldn't speak with her anymore?
[Rohkohl]: That's correct.
¶23 Contreras argues that the State "should have known" that its questions on cross-examination of Contreras would elicit her comment that she invoked her right to an attorney. However, we do not find that her response was foreseeable and, therefore, purposefully elicited by the prosecutor's line of questioning. The prosecutor was merely asking Contreras whether or not she denied depositing the check when initially questioned. The fact that the prosecutor did not intend to elicit her response is supported by the fact that the prosecutor objected to Contreras's answer, pointing out that the question required a simple "yes or no" answer. At that point, had defense counsel believed that the prosecutor's question was aimed at disclosing Contreras's request for an attorney, he had the opportunity to either object to the question and/or ask the trial court to strike the inopportune portion of the response. Defense counsel did neither in this case.
¶24 Contreras also contends that the prosecutor violated her due process rights when she elicited testimony from Detective Rohkohl that Contreras invoked her right to counsel. The state responds that any error in this case was "invited" by Contreras's testimony that the detective refused to speak with her about the additional information that she recalled.
¶25 Normally, "[a] prosecutor may not comment on a defendant's invocation of his [or her] Fifth Amendment rights." State v. Parker, 231 Ariz. 391, 406, ¶ 64, 296 P.3d 54, 69 (2013) (citing Doyle v. Ohio, 426 U.S. 610, 618-19 (1976)). Nor may a prosecutor ask the jury to draw negative inferences from a defendant's invocation of those rights. Id. at ¶ 67, 296 P.3d at 69. However, a prosecutor's comments do not violate a defendant's Fifth Amendment rights if they are "reasonable and pertinent" given the line of questioning engaged in by a defendant, and do not go beyond a reasonable and pertinent reply. State v. Cook, 170 Ariz. 40, 52, 821 P.2d 731, 743 (1991); see also State v. Christensen, 129 Ariz. 32, 39, 628 P.2d 580, 587 (1981) (remarks regarding defendant's failure to take stand that did not go beyond pertinent reply not reversible error).
¶26 Here, the prosecutor never mentioned Contreras's invocation of her rights, including in her closing arguments, and never implied that that was a reason to hold Contreras guilty. Instead, the prosecutor elicited rebuttal testimony from Officer Rohkohl in response to Contreras's insinuations that Detective Rohkohl had chosen to ignore her post-arrest attempts to contact the detective, and thereby, refused to consider exculpatory evidence about the origins of the forged check. Although Contreras's testimony did not necessarily gave rise to "invited error" per se, by repeatedly implying during her direct and redirect examination that Detective Rohkohl inexplicably refused to listen to her after the initial interview, Contreras clearly "opened the door" to the prosecutor's questions to Detective Rohkohl. See State v. Martinez, 127 Ariz. 444, 447, 622 P.2d 3, 6 (1980) (finding no error in the admission of previously excluded evidence because the defendant "opened the door" "by denying certain facts which the evidence, previously excluded, would contradict").
¶27 Moreover, given the fact that defense counsel should have been aware that his client had invoked her rights, counsel's line of questioning to Detective Rohkohl likewise "opened the door" to the prosecutor eliciting the reason why the detective declined to speak further with Contreras. See State v. Fish, 222 Ariz. 109, n.11, 213 P.3d 258, 273 n.11 (App. 2009) (state opened door to rebuttal with prior act evidence); see also State v. Roberts, 144 Ariz. 572, 575, 698 P.2d 1291, 1294 (App. 1985) (stating that "when an attorney 'opens the door' to otherwise irrelevant evidence, another party may comment or respond with comments on the same subject, in the trial court's discretion"); see also State v. Shepherd, 27 Ariz. App. 448, 450, 555 P.2d 1136, 1138 (1976) ("The general rule of rebuttal evidence is that the State may offer any competent evidence which is a direct reply to or in contradiction of any material evidence introduced by the accused."). The prosecutor limited herself to two questions that established that the reason Detective Rohkohl did not speak with Contreras when Contreras attempted to re-contact the detective was because Contreras had invoked her rights. Consequently, we find no error, let alone reversible error, in the State's rebuttal.
CONCLUSION
¶28 For the foregoing reasons, we affirm Contreras's conviction and sentence.