Opinion
No. 1 CA-CR 15-0315
06-30-2016
STATE OF ARIZONA, Appellee, v. ANDRE STEVEN FRANKLIN, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Peg Green 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2014-001163-001
The Honorable Sam J. Myers, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Peg Green
Counsel for Appellant
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Kenton D. Jones and Judge Samuel A. Thumma joined.
SWANN, Judge:
¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), from Andre Steven Franklin's ("Defendant['s]") convictions and sentences for possession of marijuana for sale and sale or transportation of marijuana, both class 2 felonies. We have reviewed the record for fundamental error. See Anders, 386 U.S. 738; Smith v. Robbins, 528 U.S. 259 (2000); State v. Clark, 196 Ariz. 530 (App. 1999). We have also considered an expert witness issue that Defendant asked his counsel to raise, and a prosecutorial misconduct issue on which we requested and received briefing under Penson v. Ohio, 488 U.S. 75, 83 (1988).
¶2 A person commits possession of marijuana for sale when he knowingly possesses marijuana for sale or intentionally aids another person in doing so; the offense is a class 2 felony if it involves an amount of marijuana weighing more than four pounds. A.R.S. §§ 13-3405(A)(2) & (B)(6), -301(2). A person commits sale or transportation of marijuana when he knowingly transports marijuana for sale; this offense is a class 2 felony if it involves an amount of marijuana weighing more than two pounds. A.R.S. § 13-3405(A)(4), (B)(11). The state presented evidence that Defendant mailed a parcel of approximately twenty pounds of marijuana at a post office. The state also presented evidence that around the same time, at the same post office, a second person mailed a similar-looking parcel, bearing similar handwriting, which also contained approximately twenty pounds of marijuana. Defendant's fingerprint was found inside the second box on the adhesive side of the contact paper in which the marijuana was wrapped. The evidence was sufficient to support Defendant's convictions.
¶3 Defendant's challenge to "the credibility and accuracy of the fingerprint expert" is without merit. The expert testified that she was a senior forensic latent print analyst, described her methodology and conclusions, and confirmed that her conclusions were verified by a second analyst. Nothing in the record suggests that the expert was unqualified,
and her credibility was for the jury to decide. State v. Hickle, 129 Ariz. 330, 331-32 (1981).
¶4 We disapprove of many of the prosecutor's remarks in closing argument, and we reject the state's contention on appeal that we requested Penson briefing on a "frivolous" issue. The prosecutor asserted that Defendant's testimony was "a web of lies" that "wasn't even that good" and "doesn't make sense," and she repeatedly characterized his testimony as "lie[s]." Such strident characterizations carry an inherent risk of crossing the line into prosecutorial misconduct. But on this record, we cannot say that the prosecutor committed fundamental error.
¶5 "There is considerable latitude allowed to counsel in argument. This includes drawing reasonable inferences from the evidence." State v. Miniefield, 110 Ariz. 599, 602 (1974). Such reasonable inferences may, in some circumstances, include the characterization of the defendant as a "liar." See id.; see also, e.g., United States v. Poole, 735 P.3d 269, 276-78 (5th Cir. 2013). If the characterization "'is reasonably seen as drawing conclusions from, and is actually supported by, the evidence,' the prosecutor does not commit error." Poole, 735 P.3d at 277 (citation omitted). The prosecutor must not, however, employ the characterization merely to incite prejudice or interject his or her personal opinions. Id. at 277-78; United States v. Rude, 88 F.3d 1538, 1548 (9th Cir. 1996). The prosecutor should take care to "carefully walk[ ] the jury through the evidence and point[ ] out inconsistencies." See United States v. Moreland, 622 F.3d 1147, 1162 (9th Cir. 2010).
¶6 Here, the prosecutor linked the majority of her criticisms of the defendant's testimony to specific evidence. First, the prosecutor identified the inconsistency between Defendant's testimony that his fingerprint must have gotten on the contact paper during an earlier home-repair project for another person and his admission that contact paper is immediately tacky once the adhesive side is exposed. Second, the prosecutor pointed out that Defendant had conceded that post office workers did not place the tape found on the exterior of the parcel he mailed. Finally, the prosecutor explained that Defendant's version of his interview with a post office inspector did not align with the inspector's. The prosecutor's comments -- calling Defendant a "liar" with respect to each of these categories of evidence -- were inappropriate. But they did not cause fundamental error. The prosecutor had no evidentiary basis upon which to call Defendant a "liar" when he claimed a lack of understanding of Phoenix geography despite longstanding residency. Her epithet was not based on the evidence, and instead constituted an improper expression of the prosecutor's personal opinion regarding
Defendant's credibility. But even if the statement constituted prosecutorial misconduct, it does not, standing alone, require reversal. See State v. Hughes, 193 Ariz. 72, 79, ¶ 26 (1998) (holding that reversal for prosecutorial misconduct is warranted only when the misconduct, viewed cumulatively, "so infected the trial with unfairness as to make the resulting conviction a denial of due process" and was "so pronounced and persistent that it permeate[d] the entire atmosphere of the trial" (citations omitted)).
¶7 The court properly entered judgment on the jury's verdicts, properly sentenced Defendant to concurrent prison terms of 3.5 years under A.R.S. §§ 13-702(D) and 13-3405(B)(6) and (11), and correctly credited Defendant with 35 days of presentence incarceration under A.R.S. § 13-712(B). Defendant was permitted to speak at sentencing, and the court stated on the record the materials it considered and the factors it found in imposing sentence.
¶8 We affirm Defendant's convictions and sentences. Defense counsel's obligations pertaining to this appeal have come to an end. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Unless, upon review, counsel discovers an issue appropriate for petition for review to the Arizona Supreme Court, counsel must only inform Defendant of the status of this appeal and his future options. Id. Defendant has 30 days from the date of this decision to file a petition for review in propria persona. See Ariz. R. Crim. P. 31.19(a). Upon the court's own motion, Defendant has 30 days from the date of this decision in which to file a motion for reconsideration.