Opinion
No. 2 CA-CR 2013-0518
01-21-2015
THE STATE OF ARIZONA, Appellee, v. MARIO HIPOLITO ENRIQUEZ, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Jonathan Bass, Assistant Attorney General, Tucson Counsel for Appellee Stanton Bloom, P.C., Tucson By Stanton Bloom 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NOT FOR PUBLICATION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. CR20111438001
The Honorable Jane L. Eikleberry, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Jonathan Bass, Assistant Attorney General, Tucson
Counsel for Appellee
Stanton Bloom, P.C., Tucson
By Stanton Bloom
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, Mario Enriquez was convicted of second-degree murder. On appeal, he contends the trial court erred in various evidentiary rulings, by allowing the victim's family to decline interviews by the defense, by requiring Enriquez to wear leg braces while testifying, by restricting his cross-examination of a witness, and by denying three motions for a mistrial. He also contends the court provided improper jury instructions and illegally sentenced him to the presumptive term. Because we find no reversible error, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the verdicts. State v. Waller, 235 Ariz. 479, ¶ 2, 333 P.3d 806, 809 (App. 2014). In November 2011, Enriquez, along with two others, entered the house of the victim, W.H. Enriquez then shot W.H. several times with an AK-47 and the men left. W.H. called 9-1-1, but died from the gunshot wounds before police arrived.
¶3 Enriquez was charged with first-degree murder and first-degree burglary. A jury convicted him of the lesser-included offense of second-degree murder. The trial court sentenced him to the presumptive sixteen-year prison term. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(1).
Motions to Suppress
¶4 Enriquez argues the trial court erred in denying two of his motions to suppress. "We review the denial of a motion to suppress for an abuse of discretion." State v. Perez, 233 Ariz. 38, ¶ 25, 308 P.3d 1189, 1195 (App. 2013). In our review, "we consider only the evidence presented at the suppression hearing and view it in the light most favorable to upholding the trial court's factual findings." State v. Fornof, 218 Ariz. 74, ¶ 8, 179 P.3d 954, 956 (App. 2008).
Enriquez's Statements to Police
¶5 Enriquez first argues the trial court erred in denying his motion to suppress statements he made during a police interview because his statements were involuntary, thereby violating his Fifth and Sixth Amendment rights. A statement is involuntary if, under the totality of the circumstances, the will of the defendant was overborne. State v. Hall, 120 Ariz. 454, 456, 586 P.2d 1266, 1268 (1978). "[S]tatements or confessions by an accused are prima facie involuntary and the state has the burden of proving the voluntariness of such statements." State v. Emery, 131 Ariz. 493, 498, 642 P.2d 838, 843 (1982). "A prima facie case for admission of a [statement] is made when the officer testifies that the [statement] was obtained without threat, coercion or promises of immunity or a lesser penalty." State v. Jerousek, 121 Ariz. 420, 424, 590 P.2d 1366, 1370 (1979).
¶6 After Enriquez was taken into custody pursuant to an arrest warrant, detectives provided him with a Miranda warning. One of the detectives then added, "You can basically answer whatever questions you want[,] and once you understand what the whole thing's about[,] it's up to you." Enriquez unambiguously invoked his right to counsel and the interrogation stopped. As the detectives were leaving the interrogation room, one of detectives stated, "Okay, give us a couple of minutes. We are trying to get some paperwork done. You are being charged with first-degree murder."
Miranda v. Arizona, 384 U.S. 436 (1966).
¶7 At that point, Enriquez began asking the detectives questions, indicated he was willing to answer some of their questions, and waived his right to remain silent. One of his questions was "But even if I answer the questions in the end I still go to jail, right?" A detective responded, "Well, it depends what you say. . . . If you have an explanation or you're seeming not to know what we're talking about."
¶8 Enriquez argues that his statements were involuntary because the Miranda warning was inadequate and the officer improperly induced him into making a statement. We address the alleged Miranda violation first, which Enriquez contends occurred based on the officer's addition of "[y]ou can basically answer whatever questions you want[,] and once you understand what the whole thing's about[,] it's up to you."
¶9 Generally, "[v]oluntariness and Miranda are two separate inquiries." State v. Montes, 136 Ariz. 491, 494, 667 P.2d 191, 194 (1983). But a Miranda violation "gives 'added weight' to other circumstances that make a confession involuntary." State v. Pettit, 194 Ariz. 192, ¶ 19, 979 P.2d 5, 9 (App. 1998), quoting Davis v. North Carolina, 384 U.S. 737, 741 (1966); see also A.R.S. § 13-3988(B)(3), (4).
¶10 A proper Miranda warning must convey certain "essential information" to a suspect, which includes: "'[1] that he has the right to remain silent, [2] that anything he says can be used against him in a court of law, [3] that he has the right to the presence of an attorney, and [4] that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.'" State v. Carlson, 228 Ariz. 343, ¶ 8, 266 P.3d 369, 372 (App. 2011), quoting Florida v. Powell, 559 U.S. 50, 59-60 (2010). "If the sum total of statements in a Miranda advisory reasonably conveys the essential information, the warning will be deemed constitutionally adequate." Id. ¶ 9.
¶11 Here, the officers informed Enriquez of the "essential information" necessary for a Miranda advisory. See id. ¶ 8. Enriquez has not provided any authority for his claim that the additional statement violated Miranda. Nor has he explained how the officer's additional statement undermined or contradicted that warning in any way. Moreover, despite the officer's addition to the traditional Miranda warning, Enriquez unambiguously invoked his right to remain silent. And Enriquez does not dispute that he re-initiated contact with the detectives after invoking his right to remain silent. Consequently, because the warning "reasonably convey[ed] the essential information," it was "constitutionally adequate" and no Miranda violation occurred. Id. ¶ 9.
¶12 Enriquez next claims he was improperly induced into making a statement. Enriquez contends the detective "gave [him] the hope and promise that if he made the right statement, he would or could be released." He argues this was an improper "inducement" because the detective knew Enriquez would be sent to jail "until further order or released by the court," in compliance with the arrest warrant.
¶13 But at the motion to suppress hearing, the detective testified that, had Enriquez provided an adequate explanation, there was an "outside chance" the county attorney would choose to release him. Based on this testimony, the detective did not lie to Enriquez in order to induce a statement, and the crux of his argument fails.
¶14 Moreover, even if the detective's statement was false, "courts will tolerate some form of police gamesmanship so long as the games do not overcome a suspect's will and induce a confession not truly voluntary." State v. Tapia, 159 Ariz. 284, 290, 767 P.2d 5, 11 (1988). "So long as the promise is 'couched in terms of a mere possibility or an opinion,' the promise is generally not sufficient to render a confession involuntary." State v. Strayhand, 184 Ariz. 571, 579, 911 P.2d 577, 585 (App. 1995), quoting State v. McVay, 127 Ariz. 18, 20, 617 P.2d 1134, 1136 (1980). In State v. Patterson, 105 Ariz. 16, 17, 458 P.2d 950, 951 (1969), police told the defendant that whether he remained in custody depended on what he told them. Our supreme court concluded the defendant's ensuing statement was not involuntary because the defendant "could not have been unaware that if his version was unsatisfactory he would be prosecuted." Id. The court found the police conduct was acceptable so long as the defendant previously had been advised of his constitutional right to remain silent and have an attorney present. Id.
¶15 Enriquez relies on State v. McFall, 103 Ariz. 234, 439 P.2d 805 (1968), to support his argument. In McFall, the defendant was a drug addict who had been arrested for forging prescriptions for narcotics. Id. at 235-36, 439 P.2d at 806-07. When he asked officers to give him some of his drugs, their answer implied they might give him some if he completed the interrogation. Id. Our supreme court noted the "possible compulsive circumstances" created by officers "insinuati[ng]" they might give an addict drugs and concluded the defendant's subsequent statement was involuntary. Id. at 236-37, 439 P.2d at 807-08.
¶16 Here, unlike the situation in McFall, no "compulsive circumstances" existed; Enriquez was not a drug addict being promised drugs as a reward for his cooperation. Instead, the detective's statement—that whether Enriquez would be released that night depended on what he said—was merely a possibility, like the statements made by police in Patterson. See 105 Ariz. at 17, 458 P.2d at 951. Enriquez had been read his Miranda rights and "could not have been unaware that if his version was unsatisfactory he would be prosecuted." Id. Enriquez's awareness of this fact is further supported by his question at the end of the interview, "So I'm being charged, right?" Although the existence of the arrest warrant in this case differentiates these facts from Patterson, see id., even if the statement that Enrique might be released was false, some deception is acceptable. See Tapia, 159 Ariz. at 289-90, 767 P.2d at 10-11. Consequently, Enriquez's situation is more analogous to Patterson than McFall, and his argument fails.
¶17 Additionally, a defendant must "show that he actually relied on the existence of a promise for that promise to render his confession involuntary." Tapia, 159 Ariz. at 290, 767 P.2d at 11. Enriquez did not testify at the suppression hearing or point to any statements he made during the interview that indicated he had relied upon the alleged inducement when making his statements. Rather, Enriquez, and not the officers, initiated the interview, and Enriquez continued to claim his ignorance of the murder both before and after the alleged promise. Cf. Pettit, 194 Ariz. 192, ¶ 23, 979 P.2d at 10 (reliance inferred because officers, not defendant, initiated interview after promise and defendant's self-incriminating statements made only after promise). Accordingly, we conclude the trial court did not abuse its discretion in finding Enriquez's statements were voluntary and denying his motion to suppress. See Perez, 233 Ariz. 38, ¶ 25, 308 P.3d at 1195. DNA evidence
Deoxyribonucleic acid.
¶18 Enriquez next argues the trial court erred in denying his motion to suppress DNA evidence obtained in an unrelated investigation. Although this court generally reviews the denial of a motion to suppress for an abuse of discretion, we review de novo the court's legal conclusions. State v. Sanchez, 200 Ariz. 163, ¶ 5, 24 P.3d 610, 612 (App. 2001).
¶19 Following W.H.'s murder, the investigation had become "somewhat stalled" because officers lacked a DNA sample to compare to that found in W.H.'s house. Although Enriquez was an "investigative lead," they did not have probable cause for a warrant to obtain his DNA sample for a comparison to the DNA found at the crime scene. In March 2011, Enriquez's former girlfriend reported that Enriquez had stolen her car. Officers in that case, after speaking with the homicide detectives, obtained and executed a search warrant for a buccal swab of Enriquez, purportedly to compare his DNA to that found on the car's steering wheel. The detectives in the automobile theft case never extracted a DNA sample from the buccal swab, and no charges were ever filed in the matter. Instead, the buccal swab immediately was given to the homicide detectives, who had a DNA sample extracted and compared to the DNA found at W.H.'s house, and determined the samples matched.
The state does not dispute that the police did not have probable cause to obtain Enriquez's buccal swab in the homicide case.
¶20 Enriquez contends that because the officers did not have a search warrant or probable cause to obtain a buccal swab, and the resulting DNA profile, in this homicide case, his Fourth Amendment rights were violated when those officers processed the DNA sample obtained pursuant to a search warrant in the automobile theft case. The Fourth Amendment of the United States Constitution requires that search warrants be issued only upon a showing of probable cause supported by an oath or affirmation. U.S. Const. amends. IV, XIV, § 1. Arizona provides similar protections. Ariz. Const. art. II, § 8 ("No person shall be disturbed in his private affairs, or his home invaded, without authority of law."); A.R.S. § 13-3913 ("No search warrant shall be issued except on probable cause, supported by affidavit . . . ."). The state does not dispute that obtaining a DNA sample is a search and seizure subject to the provisions of the Fourth Amendment.
¶21 Enriquez relies on Mario W. v. Kaipio, 230 Ariz. 122, 281 P.3d 476 (2012), to support his argument that the homicide detectives, by using the buccal swab obtained pursuant to a search warrant in the automobile theft case, conducted a warrantless search and seizure in violation of his Fourth Amendment rights. In Mario W., our supreme court determined that obtaining DNA profiles from juvenile defendants prior to an adjudication of delinquency, pursuant to A.R.S. § 8-238, was a violation of their Fourth Amendment rights. Id. ¶¶ 1, 32. The court stated that, "one accused of a crime, although having diminished expectations of privacy in some respects, does not forfeit Fourth Amendment protections with respect to other offenses not charged absent either probable cause or reasonable suspicion." Id. ¶ 31.
¶22 But, in 2013, the United States Supreme Court concluded that a similar statute allowing the state to obtain DNA samples from arrestees, before conviction, did not violate their Fourth Amendment rights. Maryland v. King, ___ U.S. ___, ___, 133 S. Ct. 1958, 1966-67, 1979-80 (2013). Neither party has cited King or explained its relevance to this case. We conclude we need not decide whether King has undermined the reasoning of Mario W. or whether Enriquez's Fourth Amendment rights were violated, because any error was harmless beyond a reasonable doubt.
To the extent Enriquez argues the search warrant for his buccal swab was invalid because it was unnecessary to the automobile theft case and requested only to assist the homicide detectives, he has failed to cite any legal authority or develop this argument in any way that would permit meaningful appellate review. See Ariz. R. Crim. P. 31.13(c)(1)(vi); State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995). Consequently, he has waived review of the issue. See Bolton, 182 Ariz. at 298, 896 P.2d at 838. And because we find that any error in admitting the DNA evidence was harmless, this issue is not determinative of the outcome in this case.
¶23 "Error is harmless if the reviewing court can say beyond a reasonable doubt that the error did not contribute to the verdict." State v. Davolt, 207 Ariz. 191, ¶ 39, 84 P.3d 456, 470 (2004). To determine if the error contributed to the verdict, we must review the remainder of the evidence presented at trial. State v. Rodriguez, 186 Ariz. 240, 246, 921 P.2d 643, 649 (1996); see also id. ¶¶ 40-43.
¶24 Enriquez was convicted of second-degree murder. That crime occurs when, as relevant here:
[W]ithout premeditation[,] . . . [t]he person intentionally causes the death of another person, . . . [or k]nowing that the person's conduct will cause death or serious physical injury, . . . causes the death of another person, . . . [or u]nder circumstances manifesting extreme indifference to human life, the person recklessly engages in conduct that creates a grave risk of death and thereby causes the death of another person.A.R.S. § 13-1104(A).
¶25 At trial, Enriquez testified that he entered W.H.'s house with an AK-47 rifle and shot W.H. several times. He claimed W.H. shot him first, and he shot back in self-defense. Thus, the identity of the shooter, the only issue to which the DNA evidence was relevant, was not in dispute. And W.H.'s cause of death was multiple gunshot wounds caused by a high-powered rifle, further supporting Enriquez's own testimony. Accordingly, in light of the evidence presented at trial, we conclude that any error in admitting the DNA evidence was harmless beyond a reasonable doubt. See Davolt, 207 Ariz. 191, ¶ 39, 84 P.3d at 470.
¶26 Enriquez argues, however, that had the DNA evidence been suppressed, he "would not have testified." But he has not cited any legal principle or authority that would allow us to ignore the testimony and evidence he chose to present. See, e.g., Wong Sun v. United States, 371 U.S. 471, 485 (1963). Accordingly, any such argument is waived. Ariz. R. Crim. P. 31.13(c)(1)(vi) (appellate brief shall contain "citations to the authorities, statutes and parts of the record relied on"); State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) (claims waived for insufficient argument on appeal). Rather, we apply the general rule that a defendant who proceeds to present evidence in light of an unfavorable ruling from the trial court "runs the risk of curing any deficiency in the state's case through introduction of his own evidence." State v. Eastlack, 180 Ariz. 243, 258, 883 P.2d 999, 1014 (1994); see also State v. Sabalos, 178 Ariz. 420, n.1, 874 P.2d 977, 979 n.1 (App. 1994); State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993) (reviewing court determines whether erroneously admitted DNA evidence harmless "in light of all the evidence"). We may, therefore, consider Enriquez's own testimony in our analysis.
9-1-1 Call
¶27 Enriquez next argues the trial court erred by denying his motion in limine to exclude the 9-1-1 call made by W.H. He contends the audio recording was testimonial hearsay that violated the Confrontation Clause of the Sixth Amendment. We review a court's denial of a motion in limine for an abuse of discretion, State v. Gamez, 227 Ariz. 445, ¶ 25, 258 P.3d 263, 267 (App. 2011), but "review de novo whether the admission of evidence violates the Confrontation Clause," State v. Joseph, 230 Ariz. 296, ¶ 7, 283 P.3d 27, 29 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 936 (2013).
¶28 With certain exceptions, testimonial out-of-court statements are barred by the Confrontation Clause. Crawford v. Washington, 541 U.S. 36, 68 (2004). A testimonial statement is a "'solemn declaration or affirmation made for the purpose of establishing or proving some fact.'" State v. Boggs, 218 Ariz. 325, ¶ 56, 185 P.3d 111, 123 (2008), quoting Crawford, 541 U.S. at 51. In the context of statements made to police or 9-1-1 operators,
Statements are nontestimonial when made . . . under circumstances objectively indicating that the primary purpose . . . is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose . . . is to establish or prove past events potentially relevant to later criminal prosecution.Davis v. Washington, 547 U.S. 813, 822 (2006). A 9-1-1 call is generally nontestimonial because it "is ordinarily not designed primarily to 'establis[h] or prov[e]' some past fact, but to describe current circumstances requiring police assistance." Id. at 827, quoting Crawford, 541 U.S. at 51 (alterations in Davis).
¶29 Such calls, however, "must be analyzed on a case-by-case basis to determine whether the statements made during the call qualify as testimonial." State v. King, 212 Ariz. 372, ¶ 28, 132 P.3d 311, 317 (App. 2006). "9-1-1 calls that are primarily 'loud cries for help' are nontestimonial." Id. ¶ 29. Those "statements are usually made in the context of immediate danger either from physical injury or threat of injury or harm." Id. Conversely, "9-1-1 calls that are made for the primary purpose of identifying a suspect or reporting evidence in an alleged crime that has already occurred will usually be testimonial." Id. ¶ 30. "Such calls are a form of accusation that may be used against the suspect, similar to a statement identifying a suspect to a police officer at the scene of a crime." Id.
¶30 During W.H.'s 9-1-1 call, he states "I've been shot," and provides his name and address. At one point W.H. says "shotgun" and, when the operator asks him to clarify, he responds by again stating "I've been shot." After the first minute, W.H. remains largely silent, does not respond to the operator's questions, and he can be heard coughing and moaning in the background. At one point, he can be heard to shout "Open the door, [B.H.]." During a few moments towards the end of the recording, shouting can be heard in the background.
As we explain below, the record is not clear concerning how much of the tape was played to the jury. Infra ¶ 40. But that uncertainty does not affect our Confrontation Clause analysis.
W.H.'s son, B.H., had been inside his bedroom at his father's home during the incident.
¶31 W.H.'s 9-1-1 call was primarily a "'loud cr[y] for help.'" King, 212 Ariz. 372, ¶ 29, 132 P.3d at 317. He was clearly in immediate danger from physical injury, as evidenced by the fact that when police arrived shortly after being dispatched, he was dead. W.H. does not identify the shooter or say anything that could be considered an "accusation." Id. ¶ 30. In short, both the call and context demonstrate that W.H. primarily meant to report his injuries so that he might receive medical attention, rather than "establish or prove past events potentially relevant to later criminal prosecution." Davis, 547 U.S. at 822. Consequently, admission of the tape of the 9-1-1 call did not violate Enriquez's Confrontation Clause rights. See Crawford, 541 U.S. at 68.
¶32 Enriquez appears to contend W.H.'s utterance of the word "shotgun" renders the phone call testimonial. However, the word was stated in no particular context and, when asked to elaborate, W.H. only responded with "I've been shot." Nothing in the tape reveals that W.H.'s use of the word "shotgun" was meant to establish or prove the weapon with which he had been shot. See Davis, 547 U.S. at 822. This argument therefore fails.
¶33 Enriquez additionally argues the admission of the tape was irrelevant and unfairly prejudicial because it contained evidence of W.H.'s suffering and should have been excluded pursuant to Rule 403, Ariz. R. Evid. He has not, however, provided us with the transcript of the hearing during which his motion in limine on the issue was heard. The defendant is responsible for ensuring the record on appeal contains all necessary transcripts to review the issues he raises. State v. Rivera, 168 Ariz. 102, 103, 811 P.2d 354, 355 (App. 1990). When a defendant fails to provide a transcript of in limine proceedings, we "presume that the record supports the decision of the trial court." State v. Huffman, 169 Ariz. 465, 467, 820 P.2d 329, 331 (App. 1991); see also Ariz. R. Crim. P. 31.8(b)(2), (4) (transcripts of proceedings in limine not provided unless requested by appellant). In the absence of the transcript, we presume it supports the court's ruling on this issue, and we therefore reject Enriquez's argument. See Huffman, 169 Ariz. at 467, 820 P.2d at 331.
Enriquez's motion in limine sought to exclude two other pieces of evidence in addition to the 9-1-1 call. The minute entry for the hearing at which that motion was argued states that the trial court granted Enriquez's "motion in limine to preclude prejudicial information." However, on the first day of trial, Enriquez conceded that the court had overruled his objection to the 9-1-1 call. Thus, despite the contradictory minute entry, the court clearly denied his motion in limine as to the 9-1-1 recording.
¶34 In his opening brief, Enriquez also notes that he moved to have "parts of the tape, particularly the parts where [W.H.] is moaning and groaning for eight minutes" excluded. Enriquez made this objection on the first day of trial, asking that several minutes of the tape in which W.H. "cough[ed]" or "moan[ed]" not be played. The state replied that it could "fast forward" through some portions of the recording, and the trial court ruled the state could do that if it wanted.
¶35 When the 9-1-1 recording was played in court, Enriquez did not object to its duration. And the transcript does not clearly indicate which portions of the recording were played for the jury. After the prosecutor played the recording, the 9-1-1 operator on W.H.'s call testified that "the 911 recording goes on for some point after that" and that he asked if W.H. could hear him, but W.H. did not respond. Both of these statements suggest that the entire tape was not played.
¶36 In the absence of a transcript from the hearing on Enriquez's motion to have the call precluded on prejudicial grounds, and the lack of a clear record as to whether the entire recording was, in fact, played before the jury, we cannot say the trial court abused its discretion in overruling Enriquez's objection. See Huffman, 169 Ariz. at 467, 820 P.2d at 331.
Sentencing
¶37 Enriquez next argues the trial court erred by imposing the presumptive sentence when he presented mitigating circumstances and the court found no aggravating circumstances. He contends that under these circumstances the court was required to impose a mitigated sentence. Enriquez did not object to his sentence below, and we therefore review only for fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005). An illegal sentence, however, constitutes fundamental error. State v. Thues, 203 Ariz. 339, ¶ 4, 54 P.3d 368, 369 (App. 2002).
¶38 "A sentence within statutory limits will not be disturbed unless the trial court abused its discretion by acting arbitrarily or capriciously." State v. Olmstead, 213 Ariz. 534, ¶ 4, 145 P.3d 631, 632 (App. 2006). When a trial court finds only mitigating factors, and no aggravating factors, "the presumptive term remains the presumptive term unless the court, in its discretion, determines that the amount and nature of the mitigating circumstances justifies a lesser term." Id. ¶ 5. "Although the trial court must consider all mitigating evidence proffered by the defendant, 'it is within the discretion of the trial judge how much weight should be given to the proffered mitigating factors.'" State v. Brewer, 170 Ariz. 486, 504, 826 P.2d 783, 801 (1992), quoting State v. Fierro, 166 Ariz. 539, 551, 804 P.2d 72, 84 (1990).
¶39 The presumptive sentence for second-degree murder is sixteen years in prison. A.R.S. § 13-710. The trial court refused to consider aggravating factors proffered by the state because they had not been presented to the jury and Enriquez had not validly waived his right to a jury trial on those factors. Despite Enriquez's contentions to the contrary, the court stated it had considered the mitigating factors before sentencing Enriquez to the presumptive sixteen-year prison term. The court thus acted within its broad discretion and imposed a lawful sentence within the statutory range. See Olmstead, 213 Ariz. 534, ¶ 5, 145 P.3d at 632. Enriquez has failed to show that the court committed error, let alone fundamental error, in sentencing him. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607.
In his reply brief, Enriquez claims A.R.S. § 13-701(F) is "illogical, preemptory, one-sided, unfair, and [a] denial of Enriquez's Fifth and Fourteenth . . . Amendment[ rights] to due process and equal protection." We do not address arguments raised for the first time in the reply brief. State v. Brown, 233 Ariz. 153, ¶ 28, 310 P.3d 29, 39 (App. 2013).
Interviews with Victim's Family
¶40 Enriquez next argues the trial court erred by refusing to allow him to interview W.H.'s wife, two sons and daughter. He contends those four witnesses offered "substantive and material evidence" and his constitutional rights to discovery, effective cross-examination, and due process outweighed their rights under Ariz. Const. art. II, § 2.1 ("Victims' Bill of Rights"). A court's ruling on a discovery request will not be disturbed absent an abuse of discretion. State v. Connor, 215 Ariz. 553, ¶ 6, 161 P.3d 596, 600 (App. 2007).
Enriquez does not dispute that the four witnesses are victims falling within the protection of the Victims' Bill of Rights.
¶41 Pursuant to the state constitution, and effectuated through statute, crime victims may refuse to be interviewed by a defendant on any matter. Ariz. Const. art. II, § 2.1(A)(5) (victim has right "[t]o refuse an interview, deposition, or other discovery request by the defendant"); A.R.S. § 13-4433(A) ("Unless the victim consents, the victim shall not be compelled to submit to an interview on any matter . . . conducted by the defendant . . . ."). Although some "victims' rights may in some cases be required to give way to defendant's due process rights, the victim's right to decline an interview has been considered absolute." State v. Roscoe, 185 Ariz. 68, 74, 912 P.2d 1297, 1303 (1996) (citation omitted); but cf. State ex rel. Romley v. Superior Court, 172 Ariz. 232, 239-41, 836 P.2d 445, 452-54 (App. 1992) (disclosure of victim's medical records may outweigh victim's rights where physician-patient privilege possibly waived and records highly relevant to defendant's justification defense). A defendant's constitutional rights to due process and effective cross-examination, however, dictate that the victim is not "free from questioning at trial about the victim's refusal of a pretrial interview." State v. Riggs, 189 Ariz. 327, 330-31, 942 P.2d 1159, 1162-63 (1997).
¶42 Enriquez argues only that the denial of the pretrial interviews violated his constitutional rights to due process and effective cross-examination because he was "unprepared to refute their allegations and testimony and was unfairly prejudiced." As the court in Romley explained
[A]ny restrictions on defendant's access to information essential to preparation for effective, reasonable cross-examination or impeachment of the victim in this case imposed pursuant to the Victim's Bill of Rights must be proportionate to the interest of protecting the victim as balanced against the defendant's due process right to a fundamentally fair trial.Romley, 172 Ariz. at 240, 836 P.2d at 453.
¶43 But other than his conclusory statement that he was unable to prepare before trial, Enriquez has not demonstrated that his inability to conduct pretrial interviews violated his right to a fundamentally fair trial in any tangible way. None of the victims was an eyewitness to the shooting, and none testified as to the actual murder. During trial, Enriquez was able to cross-examine each of the witnesses, and he developed testimony on the areas he now claims were "substantive and material." And he has not explained how his cross-examination or the witness's testimony might have changed had he been able to interview them before trial.
¶44 Consequently, because the victims' constitutional rights to decline a pretrial interview are "absolute," and Enriquez has not shown his interest in the interviews outweighed their interest in exercising their constitutional rights, we reject this argument. Roscoe, 185 Ariz. at 74, 912 P.2d at 1303; see also Romley, 172 Ariz. at 240, 836 P.2d at 453. The trial court did not abuse its discretion in denying his request to interview the four victims. See Connor, 215 Ariz. 553, ¶ 6, 161 P.3d at 600.
¶45 Enriquez next argues he is entitled to a new trial because two of the victims, despite having invocations filed on their behalf by the state, were not actually notified of their rights. During trial, B.H. testified he had not been asked to participate in an interview by the defense. A.H. testified she did not remember being asked for such an interview. A.H. further testified that, had she been asked, she would not have objected to an interview by Enriquez. Enriquez requested that A.H.'s testimony be stricken from the record based on her testimony, but did not make a similar request regarding B.H.'s testimony. The court denied Enriquez's motion. Because Enriquez failed to object to B.H.'s testimony, he has forfeited review on this issue as to B.H. absent fundamental, prejudicial error. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607. And because he has failed to argue the error was fundamental, he has waived review of the issue. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008).
¶46 Whether or not A.H. received notice of her rights or Enriquez's request for an interview is a factual determination. The record before us demonstrates that the state filed a notice of invocation of victims' rights on behalf of A.H. several months before trial. At trial, A.H. stated she did not remember if she was asked about an interview. Although she also stated she would have consented to the interview if asked, several months had passed between the notice of the invocation of her rights and her testimony at trial. As the trial court pointed out, her testimony was not a clear indication that she had not been notified of her right to refuse an interview or whether she previously had exercised that right. See McFall, 103 Ariz. at 236, 439 P.2d at 807 ("An answer by a witness that he does not remember whether an event occurred is not a denial that the event did not occur.").
¶47 Enriquez did not request an evidentiary hearing on the matter, nor did he request that the state produce the forms signed by A.H. indicating she wished to invoke her victims' rights. Consequently, by denying Enriquez's motion, the court implicitly found the state's notice of invocation more credible than A.H.'s testimony, a finding to which we defer. See State v. Estrada, 209 Ariz. 287, ¶ 22, 100 P.3d 452, 457 (App. 2004). Without a more thorough record, we are unable to conclude that the state improperly filed a notice of invocation of A.H.'s right to refuse to be interviewed. See McFall, 103 Ariz. at 236, 439 P.2d at 807.
¶48 Enriquez additionally argues the trial court erred in refusing to allow a third victim, C.B., to answer a question regarding why she refused to be interviewed. He correctly points out that in Riggs, our supreme court found a defendant may ask a victim at trial about their refusal to grant a pretrial interview. 189 Ariz. at 330-31, 942 P.2d at 1162-63. However, the court in Riggs also found that a defendant who is prohibited from asking such questions must show "that the victims refused the interviews for a reason or in a manner bearing on their credibility." Id. at 331, 942 P.2d at 1163. If the defendant fails to make that showing, "we will presume that they refused the interview solely because they had a constitutional right to do so" and that no error occurred. Id. Enriquez has not argued that C.B.'s refusal to conduct an interview was for any reason other than her constitutional right to do so. See id. This argument therefore fails.
Enriquez also argues he was not permitted to ask the victim's son about his reasons for declining an interview. Enriquez did not, however, attempt to question the son about this during trial.
¶49 Enriquez further argues that the trial court erred by not excluding the four victims from the courtroom despite his invocation of Rule 9.3(a), Ariz. R. Crim. P. Enriquez did not object during trial to the presence of the victims in the courtroom and has therefore forfeited review for all but fundamental, prejudicial error. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607. And because he has not argued the error was fundamental, he has waived review of this issue. See Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d at 140. Moreover, even had he not waived review of this issue, Rule 9.3(a) explicitly exempts victims from its provisions, and Enriquez's argument is meritless.
Reasonable Doubt Instruction
¶50 Enriquez next contends the trial court erred in instructing the jury on reasonable doubt in accordance with State v. Portillo, 182 Ariz. 592, 898 P.2d 970 (1995). He asserts the Portillo instruction is contradictory and "improperly suggests that it is the defendant's burden to prove the possibility that he did not commit the crime thereby lessening and again shifting the burden of proof."
¶51 As Enriquez acknowledges, however, our supreme court has repeatedly rejected similar challenges to the instruction Portillo requires. See, e.g., State v. Ellison, 213 Ariz. 116, ¶ 63, 140 P.3d 899, 916 (2006); State v. Dann, 205 Ariz. 557, ¶ 74, 74 P.3d 231, 249-50 (2003); State v. Lamar, 205 Ariz. 431, ¶ 49, 72 P.3d 831, 841 (2003); State v. Van Adams, 194 Ariz. 408, ¶¶ 29-30, 984 P.2d 16, 25-26 (1999). We are bound to follow our supreme court's decisions, see State v. Sullivan, 205 Ariz. 285, ¶ 15, 69 P.3d 1006, 1009 (App. 2003), and, accordingly, do not address this argument further.
Inflammatory Photographs
¶52 Enriquez argues the trial court erred by allowing the state to introduce "tens of colored photos depicting the deceased lying in red colored pools of blood." He has not, however, identified the exhibits he contends were inflammatory and unduly prejudicial. By failing to identify the exhibits he is now arguing were erroneously admitted, he has provided insufficient argument on appeal for this court to review his claim. See Ariz. R. Crim. P. 31.13(c)(1)(vi) (argument "shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on"); Bolton, 182 Ariz. at 298, 896 P.2d at 838 ("Failure to argue a claim on appeal constitutes waiver of that claim."). Accordingly, the claim is waived. See id.
In his reply brief, Enriquez identifies photographs to which he objected at trial. But, even if he intends by this statement to identify the photographs he claims on appeal should not have been admitted, we do not review arguments made for the first time in a reply brief, because the state has no opportunity to respond. See State v. Watson, 198 Ariz. 48, ¶ 4, 6 P.3d 752, 755 (App. 2000) (declining to address argument first raised in reply brief, although same argument made below).
Enriquez's Leg Braces
¶53 Enriquez next argues the trial court erred by requiring him to wear leg braces while he was testifying. "Matters of courtroom security are left to the discretion of the trial court," and we will uphold the court's decision when it is supported by the record. Davolt, 207 Ariz. 191, ¶ 84, 84 P.3d at 476.
¶54 The trial court determined that "[g]iven the nature of the charges and the security risks that are present," Enriquez would remained shackled during his testimony. At the state's suggestion, and with Enriquez's approval, the court ordered that he be placed in leg braces which would be "less obvious" than shackles. The court granted defense counsel's request to observe how Enriquez walked with the braces before deciding whether to have him placed on the witness stand before the jury entered the courtroom. Enriquez did not object again to the leg braces, proceeded to testify in his own defense, and stepped down from the stand during his testimony to make various demonstrations in front of the jury.
¶55 Because Enriquez objected to the use of shackles, but not the use of leg braces, he has waived review for all but fundamental, prejudicial error. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607; State v. Lopez, 217 Ariz. 433, ¶ 4, 175 P.3d 682, 683 (App. 2008) ("[A]n objection on one ground does not preserve the issue on another ground."). And because he has not argued the error was fundamental, he has waived review of this issue. See Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d at 140.
Cross-Examination of A.R.
¶56 Enriquez next argues the trial court erroneously limited his cross-examination of his former girlfriend, A.R., by not allowing him to introduce—through a different witness—evidence of a plea agreement between the state and J.G., the father of A.R.'s children. He argues this plea agreement went to A.R.'s credibility because her statements regarding Enriquez were made "in hopes that [her children's father] receive a reduced sentence on a plea bargain that he took on several unrelated . . . charges." We review a court's evidentiary rulings for an abuse of discretion. State v. Chappell, 225 Ariz. 229, ¶ 28, 236 P.3d 1176, 1185 (2010).
¶57 Enriquez did not attempt to introduce this plea agreement during his cross-examination of A.R. Rather, he attempted to introduce the plea agreement during his cross-examination of a detective who was present during an interview with J.G. Enriquez sought to elicit testimony from the detective that J.G. received his plea agreement because of A.R.'s statements about Enriquez, and the state objected. The court pointed out, and Enriquez has not disputed, that the detective "didn't know" if the reason for the plea agreement was A.R.'s statements; the court sustained the state's objection, finding Enriquez failed to "prove [a] causal connection between the plea and any interviews" conducted with A.R. or J.G.
¶58 Enriquez has not argued the trial court erred in finding the detective an improper witness to testify as to the reasons for J.G.'s plea agreement, and he has not shown the court abused its discretion in sustaining the state's objection to this question. See Chappell, 225 Ariz. 229, ¶ 28, 236 P.3d at 1185.
¶59 Moreover, Enriquez has not made any offer of proof that the plea agreement itself contained evidence that A.R.'s statements were the cause of J.G.'s plea agreement. See Ariz. R. Evid. 103(a)(2); see also State v. Dixon, 226 Ariz. 545, ¶ 44, 250 P.3d 1174, 1183 (2011). Consequently, even if the trial court had erred in finding a lack of foundation, because we cannot review the plea agreement to determine its relevance, we would be unable to address his argument. See Ariz. R. Evid. 103(a)(2); Dixon, 226 Ariz. 545, ¶ 44, 250 P.3d at 1183.
Motions for Mistrial
¶60 Enriquez next argues the trial court erred in denying his three motions for a mistrial. "We review a trial court's denial of a motion for mistrial under an abuse of discretion standard." State v. Marshall, 197 Ariz. 496, ¶ 10, 4 P.3d 1039, 1043 (App. 2000).
A.H.'s Statements
¶61 Enriquez first moved for a mistrial based on statements made by W.H.'s son, A.H., that W.H. was "murdered." Following its denial of Enriquez's motion for a mistrial, the trial court instructed the jury to disregard any comments made by A.H. "regarding the guilt of the defendant," and reminded the jury it was their task to determine whether Enriquez was guilty of the charges alleged. Motions for a mistrial based on evidentiary concerns, such as a witness's outbursts, are reviewed by an abuse of discretion standard "because the trial judge is in the best position to evaluate 'the atmosphere of the trial, the manner in which the objectionable statement was made, and the possible effect it had on the jury and the trial.'" Bible, 175 Ariz. at 598, 858 P.2d at 1201, quoting State v. Koch, 138 Ariz. 99, 101, 673 P.2d 297, 299 (1983).
In his opening and reply brief, Enriquez contends A.H., while on the stand, "blurted out '[Enriquez] is a murderer.'" Enriquez does not, however, provide any citation to the record for this alleged outburst and we could find nothing in A.H.'s testimony where he refers to Enriquez as a "murderer." We generally do not consider matters outside the record. State v. Schackart, 190 Ariz. 238, 247, 947 P.2d 315, 324 (1997).
¶62 Enriquez has not explained why the trial court's limiting instruction did not cure any alleged prejudice A.H.'s comment caused. Additionally, we fail to see how the jurors would have been prejudiced or surprised by hearing that A.H. believed his father had been murdered. See Bible, 175 Ariz. at 598, 858 P.2d at 1201. The court did not abuse its discretion in denying Enriquez's motion for a mistrial.
C.B.'s Tattoo
¶63 Enriquez next moved for a mistrial based on the fact that C.B., W.H.'s daughter, wore a sleeveless top during her testimony that revealed a tattoo on her right shoulder of a parachute along with W.H.'s birth and death dates. The trial court noted it had seen the tattoo, but was unable to read it "even when she [was] sitting next to me." Additionally, it found that whether the jurors had seen the tattoo or not, it could not "imagine that that would create a great deal of prejudice." And Enriquez has not provided any explanation as to how C.B.'s tattoo prejudiced the jury against him. Based on the court's own observations and the record before us, the court did not abuse its discretion in denying Enriquez's motion for a mistrial based on C.B.'s tattoo. Consequently, we reject this argument.
The parachute is an apparent reference to the fact that W.H. served as a paratrooper in the military.
Prosecutorial Misconduct
¶64 Enriquez also moved for a mistrial based on an allegation that the prosecutor approached Enriquez's brother in the hallway outside the courtroom and, in the presence of two jurors, said, "We will get you soon." The prosecutor responded that the allegation was a "lie," that he "never approached anyone, much less in front of the jurors" and that, in any event, he did not know who the brother was.
¶65 The trial court, assuming that if Enriquez's brother testified on the matter he would testify the statement was made, accepted the prosecutor's avowal that the interaction never occurred and denied Enriquez's motion. We defer to the court's resolution of the conflict in evidence. See State v. Thomas, 196 Ariz. 312, ¶ 3, 996 P.2d 113, 114 (App. 1999). Based on the court's finding that the incident never occurred, it did not abuse its discretion in denying Enriquez's motion for a mistrial.
¶66 Enriquez argues, however, the trial court erred in failing sua sponte to question the two jurors who allegedly heard the statement. But he has failed to cite any legal authority that would require the court to conduct such an evidentiary hearing sua sponte under these circumstances. See Ariz. R. Crim. P. 31.13(c)(1)(vi) (appellant must cite authorities supporting contentions). Consequently, we do not address this argument.
Manslaughter Instruction
¶67 Enriquez argues the trial court erred by instructing the jury on the lesser-included offenses of second-degree murder and manslaughter pursuant to State v. LeBlanc, 186 Ariz. 437, 924 P.2d 441 (1996). He failed to object to this instruction at trial, and has therefore forfeited review for all but fundamental, prejudicial error. See State v. Bartolini, 214 Ariz. 561, ¶ 13, 155 P.3d 1085, 1089 (App. 2007). Under this standard, the defendant must show the error was fundamental and caused him prejudice. Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d at 607.
¶68 This court previously has concluded that providing the LeBlanc instruction under similar circumstances is not fundamental error. State v. Eddington, 226 Ariz. 72, ¶¶ 29-33, 244 P.3d 76, 85-86 (App. 2010). Enriquez has not cited Eddington or challenged the conclusions in that case. And Enriquez has failed to explain how he was prejudiced by the instruction or to support any apparent prejudice argument with citations to the record. Ariz. R. Crim. P. 31.13(c)(1)(vi); see Eddington, 226 Ariz. 72, ¶ 33, 244 P.3d at 86. Accordingly, we reject this argument. See Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d at 607.
Disposition
¶69 For the foregoing reasons, we affirm Enriquez's conviction and sentence.