Opinion
2 CA-CR 2023-0024
08-13-2024
The State of Arizona, Appellee, v. Max Fontes, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Tanja K. Kelly, Assistant Attorney General, Tucson Counsel for Appellee Megan Page, Pima County Public Defender By David J. Euchner and Jenna L. Johnson, Assistant Public Defenders, Tucson Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. CR20182815001 The Honorable Brenden J. Griffin, Judge
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Tanja K. Kelly, Assistant Attorney General, Tucson Counsel for Appellee
Megan Page, Pima County Public Defender By David J. Euchner and Jenna L. Johnson, Assistant Public Defenders, Tucson Counsel for Appellant
Judge Sklar authored the decision of the Court, in which Presiding Judge O'Neil and Chief Judge Staring concurred.
MEMORANDUM DECISION
SKLAR, JUDGE
¶1 Max Fontes appeals his conviction and sentence for negligent homicide. He argues that the trial court: (1) erred in allowing the parties to try the case before an eight-person jury; (2) abused its discretion in preventing defense counsel from rehabilitating Fontes's credibility during his testimony; and (3) erred in providing and failing to provide certain jury instructions. For the following reasons, we reject these arguments and affirm Fontes's conviction and sentence.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 We view the facts in the light most favorable to sustaining the jury's verdicts, and we resolve all reasonable inferences against Fontes. See State v. Fierro, 254 Ariz. 35, ¶ 2 (2022). In April 2018, Fontes broadsided a car occupied by A.S. and his child, G. The collision resulted in G.'s death and serious injuries to A.S. One second before impact, Fontes was driving between ninety and ninety-five miles per hour in a forty-five mile-per-hour zone.
¶3 A grand jury indicted Fontes on four counts: (1) reckless manslaughter, (2) aggravated assault with a dangerous instrument, (3) aggravated assault resulting in serious physical injury, and (4) criminal damage. After a seven-day trial, the jury found him guilty of negligent homicide as a lesser-included offense of reckless manslaughter, and the trial court sentenced him to four years in prison. This appeal followed.
EIGHT-PERSON JURY
¶4 Fontes argues that the trial court committed structural error in violation of both the Arizona and U.S. Constitutions by submitting the case to an eight-person jury rather than a twelve-person jury. We review these constitutional challenges de novo. State v. Fitzgerald, 232 Ariz. 208, ¶ 37 (2013).
I. Applicable facts
¶5 The trial court empaneled a twelve-person jury with three alternates. But during trial, the court excused four jurors after they contracted COVID-19, so only eleven remained.
¶6 On the final day of trial, the state suggested submitting the case to an eight-person jury with the stipulation that it would not seek a sentence of thirty years or more. Fontes objected, but the trial court adopted the state's suggestion. Neither the state nor the court dismissed any allegations that would reduce Fontes's sentencing exposure to less than thirty years.
II. State Constitution issue
¶7 Under the Arizona Constitution, "[t]he right of trial by jury shall remain inviolate," and a twelve-person jury is required in criminal cases where "a sentence of death or imprisonment for thirty years or more is authorized by law ...." Ariz. Const. art. II, § 23. Here, the trial court submitted the case to a jury of fewer than twelve where the cumulative possible sentences exceeded thirty years. Fontes argues that doing so constituted structural error that requires reversal. He reasons that the state failed to dismiss sufficient charges to reduce his prison exposure below thirty years.
A. Whether dismissal of charges was required to proceed with eight-person jury
¶8 The Arizona Supreme Court addressed a similar issue in State v. Soliz, 223 Ariz. 116 (2009). There, the defendant faced a maximum of thirty-five years in prison, but the case was submitted to an eight-person jury without objection from either party. Id. ¶¶ 2-3. At sentencing, the state declined to prove the prior convictions or aggravating circumstances that would have subjected the defendant to the thirty-five-year term, and he was sentenced to ten years' imprisonment. Id. The supreme court concluded that the state had "effectively waived its ability to obtain a sentence of thirty years or more." Id. ¶ 16. As a result, no constitutional error occurred. Id. Rather, "the twelve-person guarantee of Article 2, Section 23 [was] not triggered." Id.
¶9 Relying on Soliz, this court reached a similar conclusion when faced with relevant facts that were indistinguishable from this case's. State v. Johnson, No. 1 CA-CR 13-0584, 2015 WL 161174 (Ariz.Ct.App. Jan. 13, 2015) (mem. decision). There, the trial was delayed, and only nine jurors were available when it resumed. Id. ¶ 2. The state did not dismiss any allegations of aggravating circumstances that had exposed the defendant to a sentence of at least thirty years. Id. ¶ 2, n.1. The trial court concluded, and this court agreed, that the state was not required to dismiss any of the allegations. See id. ¶¶ 2, 7. Instead, the defendant "could not, as a matter of law, receive a sentence of 30 years or more." Id. ¶ 7.
¶10 We reach the same conclusion. As in Soliz, the state was not required to dismiss allegations before submitting the case to an eight-person jury. See Soliz, 223 Ariz. 116, ¶ 16. The trial court instead "explicitly acted to effectively reduce the defendant's jeopardy before the jury began deliberations." Id. It did so by issuing a minute entry, consistent with the state's request, stating that Fontes would not face a sentence of thirty years or more. As a result, the state had "effectively waived" the ability to obtain such a sentence. Id.
¶11 The circumstances here are not meaningfully distinguishable from Soliz. No dismissal of allegations was necessary to effectuate that waiver and avoid constitutional error, just as no such dismissal occurred in Soliz. See id. In Soliz, the case was submitted to the jury without dismissal of the allegations that could have exposed the defendant to a sentence of thirty years or more, but the state decided after the verdict not to prove those allegations. Id. ¶¶ 2-3. Here, the case was submitted to the jury under similar circumstances, but Fontes was convicted of a lesser-included offense for which a sentence of thirty years or more was not possible. Although we sympathize with Fontes's argument that this conclusion is difficult to reconcile with the "authorized by law" language in Article II, Section 23, we have no authority to overrule Soliz.
B. Relevance of Fontes's objection to eight-person jury
¶12 Fontes attempts to distinguish Soliz on the ground that unlike the Soliz defendant, he objected to an eight-person jury. He points to language in Soliz stating, "[H]ad Soliz requested a twelve-person jury, the trial court should have granted that request." See id. ¶ 8. However, we do not read this language as rendering the lack of an objection in that case-or the existence of one here-dispositive. This is because Soliz concluded that the failure to empanel a twelve-person jury was not constitutional error. Id. ¶¶ 16, 18. Absent any error, the objection or lack thereof is irrelevant.
¶13 In arguing to the contrary, Fontes also points to State v. Provenzino, 221 Ariz. 364 (App. 2009), upon which he relied heavily at oral argument. That case concludes, "An error in empaneling fewer than twelve jurors when twelve are required is fundamental error because it violates a state constitutional provision." Id. ¶ 7. It further states that when a judge assures the defendant "that he will not impose a sentence of greater than thirty years . . . such a forfeiture of discretion is not sufficient to eliminate the need for a twelve-person jury." Id. ¶ 9.
¶14 However, Provenzino predates Soliz. And while Soliz does not explicitly overrule or otherwise mention Provenzino, Fontes's proposed reading of Provenzino does not survive Soliz. Provenzino did not contemplate that when the state and trial court act to reduce the defendant's jeopardy, even without dismissing allegations, the defendant's right to a twelve-person jury would not be triggered. See Soliz, 223 Ariz. 116, ¶ 16. But that is exactly what Soliz concludes. Id.
¶15 Rather, Provenzino was decided in an era when reversal was required if a case was submitted to an eight-person jury when the defendant faced a thirty-year sentence. See State v. Henley, 141 Ariz. 465, 468-69 (1984); see also Provenzino, 221 Ariz. 364, ¶ 7 (citing Henley, 141 Ariz. at 468-69). The same was true of numerous other cases that Fontes cited at oral argument. See, e.g., State v. Prince, 142 Ariz. 256 (1984), State v. Thompson, 139 Ariz. 133 (App. 1983), State v. Fancy, 139 Ariz. 76 (App. 1983). Indeed, this case is factually indistinguishable from another of that era's cases, State v. Pope, 192 Ariz. 119, ¶¶ 4, 12 (App. 1998), where the defendant had also objected to an eight-person jury. But that era ended with Soliz, which "acknowledge[d] that the approach we adopt departs" from these cases, "particularly" Pope. Soliz, 223 Ariz. 116, ¶ 17. We therefore reject Fontes's attempt to analogize this case to Provenzino.
III. U.S. Constitution issue
¶16 Fontes also argues that the eight-person jury violated the Sixth Amendment to the U.S. Constitution. However, the United States Supreme Court in Williams v. Florida, 399 U.S. 78, 103 (1970), expressly approved juries of fewer than twelve. Fontes argues that Williams's reasoning does not survive subsequent case law, but he also acknowledges that we have no authority to assume that these cases have implicitly overruled Williams. See Agostini v. Felton, 521 U.S. 203, 237 (1997) ("We do not acknowledge, and we do not hold, that other courts should conclude our more recent cases have, by implication, overruled an earlier precedent."). We must therefore reject Fontes's Sixth Amendment argument.
REHABILITATION OF FONTES'S CREDIBILITY
¶17 Fontes next argues the trial court abused its discretion by prohibiting him from rehabilitating his credibility after the state questioned him about prior traffic citations. In general, a trial court has "discretion to determine and control the method of interrogation ...." Pool v. Superior Court, 139 Ariz. 98, 104 (1984) (citing Ariz. R. Evid. 611(a)). We therefore review this issue for an abuse of discretion. State v. Christensen, 129 Ariz. 32, 37 (1981).
I. Applicable facts
¶18 Fontes testified at trial. During his direct examination, his counsel asked an imprecise question about his criminal history. Specifically, he asked:
Q. Ever been in trouble with the law before? Before this incident?
A. No, I haven't.
Q. After this incident?
A. No.
However, in the years between the incident and trial, Fontes had been cited for driving under the influence of an intoxicant and for speeding.
¶19 Because the defense opened the door to this issue, the trial court allowed the state to impeach Fontes on cross examination by asking about the citations. That questioning proceeded as follows:
Q. Do you remember [defense counsel] asking you if, after this collision, you had been in trouble with the law?
A. Yes, ma'am.
Q. Isn't it true that you were pulled over for speeding on April 25th of 2019?
A. Yes, ma'am.
Q. Isn't it true on that day that you were going 17 miles over the speed limit when you were stopped?
A. I don't remember.
Q. Isn't it true that you were also cited for a traffic violation on July 20th of 2022?
A. I don't remember. Your question, please?
Q. Did you receive a citation on that day related to two violations?
A. Yes, ma'am.
Q. And was one of the violations related to 23 miles per hour over the speed limit? A. I don't remember.
Q. If I told you that's what one of the charges in the citation was, would that refresh your recollection?
A. Yes, ma'am.
Q. And was the other citation, or other charge on the citation, for driving under the influence?
A. Yes, ma'am.
¶20 On redirect, Fontes's counsel attempted to rehabilitate Fontes's credibility with testimony that the DUI charge had been dismissed. The trial court sustained the state's objection to defense counsel's question about the DUI charge's disposition. It told Fontes's counsel, "[Y]ou're the one who opened this door very broadly" and "[W]e would not be having this discussion[] if you didn't ask such a poorly worded and broad question about a topic you had to know was very sensitive." It further explained, "I'm trying to keep it narrow so that the jury is not misled about you opening the door." Rather than allowing further testimony, it offered a limiting instruction "on the purpose for which the jury can consider" Fontes's interactions with law enforcement after the incident. Fontes declined it.
II. Whether the trial court abused its discretion by precluding the rehabilitation testimony
¶21 Fontes argues that by prohibiting the testimony that the charges had been dismissed, the trial court left the jury with the "false impression that [Fontes] was found responsible for those tickets, including the DUI charge." The effect, he argues, is that the jury could have believed that "he lied about having driven recklessly even after he had been involved" in the collision at issue.
¶22 The Arizona Rules of Evidence provide scant guidance for this situation. Rule 608, which Fontes cites, generally governs the admission of testimony about character for truthfulness. But it does not contemplate rehabilitation of a witness when that witness's own counsel elicits damaging evidence about character for truthfulness on direct examination. See Ariz. R. Evid. 608(a) (allowing "evidence of truthful character" only after "witness's character for truthfulness has been attacked."); 608(b) (allowing testimony about specific instances of conduct on cross-examination under some circumstances). At best, the trial court could find guidance in Rule 611, which required it to "exercise reasonable control over the mode and order of examining witnesses and presenting evidence ...." Ariz. R. Evid. 611(a).
¶23 With little authority, Fontes's counsel's imprecise question about "trouble with the law" presented the trial court with a challenging exercise of discretion. Initially, we do not agree with Fontes that "trouble with the law" excludes dismissed charges, nor do we think a reasonable juror would interpret the phrase so narrowly. Rather, a juror would likely understand "trouble with the law" to include, at a minimum, the DUI citation. Thus, the court appropriately allowed the state to cross-examine Fontes to correct his misleading testimony. And that cross-examination was not necessarily misleading itself. The jury heard that Fontes was cited for speeding and DUI, which was true. It is not obvious that a juror would have assumed these citations led to convictions.
¶24 That left the trial court to determine whether further testimony about the citations was appropriate on redirect. At oral argument, Fontes asserted that the court should have allowed his counsel to ask him whether the charges were dismissed, and he should have been permitted to provide an affirmative answer. We agree that allowing this testimony would have been within the court's discretion.
¶25 But that option presented its own shortcomings. Had Fontes testified that the charges were dismissed, the state said it wanted to "call witnesses to say why he wasn't charged ...." The record does not explain what those witnesses might have said. Thus, the circumstances suggest that fully explaining the dismissal would have required more testimony than Fontes suggests.
¶26 Recognizing this risk, the trial court emphasized its concern about keeping the issue "narrow so that the jury is not misled about [Fontes's counsel] opening the door." It likewise explained that it did "not want to go into all the specific details." The court's concerns were reasonable. It needed to guard against misleading testimony while avoiding a mini-trial on the collateral issue relating to Fontes's "trouble with the law." Further testimony on that issue risked confusing the jury or wasting its time, especially given the possibility of additional witnesses from the state. See Ariz. R. Evid. 403; see also State v. Buccheri-Bianca, 233 Ariz. 324, ¶ 10 (App. 2013) (recognizing risks under Rule 403 of "collateral mini-trial" on other issues). And Fontes rejected the court's suggestion of a limiting instruction, which was another means of resolving the issue. Given these circumstances, we reject Fontes's argument that the court abused its discretion by imposing the limits that it did.
PROXIMATE-CAUSE INSTRUCTION
¶27 Fontes also argues that the trial court fundamentally erred by failing to instruct the jury that the state must prove proximate cause beyond a reasonable doubt. Fontes did not object to the proximate-cause instruction at trial, so we review for fundamental error. See State v. Felix, 237 Ariz. 280, ¶ 13 (App. 2015). Error is fundamental if it goes to the foundation of the case, takes away from the defendant a right essential to his defense, or is so egregious that the defendant cannot possibly receive a fair trial. State v. Escalante, 245 Ariz. 135, ¶ 21 (2018). "An error generally goes to the 'foundation of a case' if it relieves the prosecution of its burden to prove a crime's elements, directly impacts a key factual dispute, or deprives the defendant of constitutionally guaranteed procedures." Id. ¶ 18.
¶28 Proximate cause was an issue because Fontes presented evidence that A.S. and G. were not restrained and were ejected from the vehicle. A.S.'s blood later tested positive for tetrahydrocannabinol, and police found marijuana in his car after the incident. Fontes argued that the lack of restraints and potential drug use were proximate causes of the collision.
¶29 Our supreme court previously held in a special action that Fontes was not entitled to a superseding-cause instruction because A.S.'s "alleged acts and omissions were not intervening events." State v. Aragon, 252 Ariz. 525, ¶ 24 (2022). Thus, Fontes does not challenge the trial court's omission of a superseding-cause instruction. Instead, he argues that the court should have incorporated language from that instruction to the proximate-cause instruction it did give. That language requires the state to prove lack of superseding cause beyond a reasonable doubt. Rev. Ariz. Jury Instr. (RAJI) Stand. Crim. 52 (6th ed. 2022).
¶30 Fontes argues that the trial court should have modified that language to explicitly require the state to prove proximate cause beyond a reasonable doubt. Instead, the court more generally instructed the jury that "the State must prove each element of each charge beyond a reasonable doubt."
¶31 In Fontes's view, this instruction was insufficient, especially because the trial court also gave a multiple-actors instruction. That instruction provided:
The unlawful acts of two or more people may combine to cause the harm of another. If the unlawful act of the other person was the sole proximate cause of the harm, the defendant's conduct was not a proximate cause of the harm. If you find that the defendant's conduct was not a proximate cause of the harm, you must find the defendant not guilty.
In Fontes's view, this instruction could lead a jury to believe that he bore the burden of proving that someone else was not the sole proximate cause.
¶32 Assuming without deciding that the trial court erred by not including the reasonable-doubt language in its proximate-cause instruction, we conclude that the error was not fundamental. It did not relieve the prosecution of its burden of proving causation, directly impact a key factual dispute, or deprive Fontes of constitutionally guaranteed procedures. Escalante, 245 Ariz. 135, ¶ 18. As explained, the jury had been properly instructed that the state bears the burden of proving all elements beyond a reasonable doubt. See State v. Acuna Valenzuela, 245 Ariz. 197, ¶ 91 (2018). We presume the jury followed this instruction. State v. Gallardo, 225 Ariz. 560, ¶ 40 (2010). And nothing in the causation instruction suggested that the state's burden on that issue differed from its burden on other issues. At best, the language proposed by Fontes would have reinforced the general instruction about the state's burden. Nor did anything in the multiple-actors instruction suggest that Fontes bore any burden of proof on any issue.
¶33 We likewise disagree with Fontes that State v. Rodriguez, 192 Ariz. 58 (1998), upon which he relied at oral argument, compels a different result. Rodriguez held that the standard burden-of-proof instruction did "not redress the risk of burden shifting engendered by alibi evidence ...." Id. ¶¶ 25-26. It dealt with the unique risk that a jury might believe that a defendant who puts forth an alibi defense bears the burden of proving it. Id. ¶ 25. Fontes attempts to generalize this risk of burden shifting to the area of causation. But nothing in Rodriguez suggests that this is appropriate. Nor do we believe that this risk applies equally to causation as to alibi, especially given that our review is limited to fundamental error.
CRIMINAL-SPEEDING INSTRUCTION
¶34 Finally, Fontes argues that insufficient evidence supported the trial court's decision to instruct the jury on the definition of criminal speeding, which requires that the speeding have occurred in a business or residential district. A.R.S. § 28-701.02(A)(2).
¶35 Under A.R.S. § 28-701.02(A)(2), it is unlawful to "[e]xceed the posted speed limit in a business or residential district by more than twenty miles per hour ...." Section 28-101 provides definitions for "business district" and "residence district." A business district is
the territory contiguous to and including a highway if there are buildings in use for business or industrial purposes within any six hundred feet along the highway, including hotels, banks or office buildings, railroad stations and public buildings that occupy at least three hundred feet of frontage on one side or three hundred feet collectively on both sides of the highway.
A.R.S. § 28-101(13). A residence district is
the territory contiguous to and including a highway not comprising a business district if the property on the highway for a distance of
three hundred feet or more is in the main improved with residences or residences and buildings in use for business.
¶36 We review the trial court's decision to give a jury instruction for abuse of discretion, and we will reverse only if the instructions as a whole are misleading. See Leon v. Marner, 244 Ariz. 465, ¶ 11 (App. 2018) (quoting State v. Rutledge, 197 Ariz. 389, ¶ 15 (App. 2000)). "A party is entitled to an instruction on any theory reasonably supported by the evidence." Rodriguez, 192 Ariz. at 61.
¶37 Here, the record shows businesses and residences were in the area where the accident happened. The state presented evidence that A.S.'s vehicle came from a road "by the dental place," that the reason for the speed limit on the divided highway was because it is in a "business area," and that Fontes claimed he did not pass any cars right by the bank before the collision. This evidence is sufficient to support the trial court's criminal speeding instruction.
DISPOSITION
¶38 We affirm Fontes's conviction and sentence.