Opinion
No. 1 CA-CR 20-0082
02-25-2021
STATE OF ARIZONA, Appellee, v. JOHN NATE GARDEA, SR., Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Alice M. Jones Counsel for Appellee Yuma County Legal Defender's Office, Yuma By Kristin C. McManus 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Yuma County
No. S1400CR201800703
The Honorable David M. Haws, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Alice M. Jones
Counsel for Appellee Yuma County Legal Defender's Office, Yuma
By Kristin C. McManus
Counsel for Appellant
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Kent E. Cattani and Judge Brian Y. Furuya joined. THUMMA, Judge:
¶1 Defendant John Nate Gardea, Sr., appeals his conviction and resulting sentence for second-degree murder, a Class 1 felony. Because Gardea has shown no error, his conviction and sentence are affirmed.
FACTS AND PROCEDURAL HISTORY
This court "view[s] the facts in the light most favorable to sustaining the jury's verdict and resolve[s] all reasonable inferences against [Gardea]." State v. Lopez, 209 Ariz. 58, 59 ¶ 2 (App. 2004).
¶2 In June 2018, Gardea drove to the victim's apartment to retrieve personal property he claimed the victim had stolen from him in a violent altercation the prior week. Armed with a gun, Gardea parked and walked about 12 minutes to the victim's apartment, where he first argued with and then fatally shot the victim.
¶3 The State charged Gardea with first-degree murder and aggravated assault of another victim. Gardea asserted he acted in self-defense, as he knew the murder victim was "very violent." Gardea testified at trial that the victim violently stole from him. Two days after that alleged theft, J.M. called Gardea and asked that he pick her up because the victim was threatening to kill her. Gardea was also aware the victim had assaulted another person (M.B.) three times, once hitting her in the head with a hammer.
The State also charged Gardea with misconduct involving weapons. That charge was severed from this trial is and not part of this appeal.
¶4 After the State filed a motion in limine, the superior court held a hearing to determine whether evidence of the victim's other acts was admissible at trial. At the end of the hearing, the court ruled:
I'm going to allow the [] reputation and opinion information for [] violence. That can come in.
You can [] say they [] know the person, either they don't or [] they know his reputation. He has a reputation for violence. That's it. We're not going to get into specific instances of conduct unless I make a specific ruling that a specific instance of [] conduct can be addressed. So the . . . motion [in limine] is granted with those limitations.Later at the same hearing, the court stated:
[A]t this point I'm [] not allowing [testimony from J.M and M.B. about the incidents between them and the victim]. Those specific acts of conduct as to those two people is not allowed at this time, but it may be revisited if [Gardea's] credibility comes into question, and then we'll [] hear arguments about why those incidents support or [] bolster [Gardea's] credibility after it's been attacked.
¶5 At trial, J.M., M.B. and a third witness testified that the victim had a reputation for violence, and they believed the victim was violent. Gardea testified that the victim beat him up and stole his belongings. J.M. testified that she was "in a situation" where the victim lived, and she called Gardea to pick her up. She also testified that when the victim heard that Gardea was coming, he told her "if [she] was talking to that f'ing [blank], that if [Gardea] came to that complex, that he would kill him." J.M. added, however, that she did not tell Gardea what the victim said.
¶6 During its initial closing argument, the State asserted:
Now, the defendant's credibility. Just like any other witness, you get to assess the defendant's credibility; but unlike the other witnesses, the defendant has had access to all of the police reports and all of the statements and all of the information since June of 2018. Also unlike the other witnesses, the defendant has heard what the testimony is of every single person and what each one of them had to say.After the State finished, Gardea moved for a mistrial, arguing that the fact he had access to such information was privileged, as was the information itself. The State responded that the fact Gardea had access to the reports was not privileged, and the State did not assert that Gardea had read the reports. The court denied Gardea's motion for mistrial.
¶7 The court instructed the jury to "consider what testimony to accept and what to reject," to "evaluate the defendant's testimony the same as any witness' testimony," and that the lawyers' statements are "not evidence." After deliberations, the jury found Gardea not guilty of first-degree murder but guilty of the lesser-included offense of second-degree murder, and not guilty of aggravated assault.
¶8 Gardea moved for a new trial on the same grounds as his motion for mistrial. The court denied the motion, noting that "no trial is perfect. There were issues that came up in the trial that were not perhaps ideal, but the court [] finds that there was nothing that deprived [Gardea] of a fair trial, and so there is no grounds for a new trial, and the motion for new trial is denied."
¶9 The court sentenced Gardea to a 16-year prison term, properly awarding him 613 days' presentence incarceration credit. This court has jurisdiction over Gardea's timely appeal pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1), 13-4031 and -4033(A)(2021).
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated. --------
DISCUSSION
¶10 Gardea raises two issues on appeal. First, that the court erred in precluding him from introducing more evidence about the victim's prior violent acts. Second, that the court erred in denying his motions for mistrial and for a new trial based on prosecutorial misconduct.
I. The Court Did Not Err in Precluding Gardea From Introducing Further Evidence Regarding the Victim's Prior Violent Acts.
¶11 As applicable here, this court reviews evidentiary rulings for an abuse of discretion. State v. Rose, 231 Ariz. 500, 513 ¶ 62 (2013); State v. Fish, 222 Ariz. 109, 114 ¶ 8 (App. 2009) (citing cases). Evidence of a victim's pertinent character trait offered by an accused, or by the prosecution to rebut such evidence, "may be proved by testimony about the person's reputation or by testimony in the form of an opinion." Ariz. R. Evid. 404(a)(2), 405(a). Specific instances of conduct may be offered when the victim's character or character trait is an essential element of a charge or defense. See Ariz. R. Evid. 405(b). A victim's other crimes, wrongs or acts, if known to a defendant, may be admitted "to prove a defendant reasonably feared for his safety and used a reasonable degree of force in light of that fear." Fish, 222 Ariz. at 121 ¶ 37 (construing Ariz. R. Evid. 404(b)(2)). Relevant evidence is admissible unless "its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Ariz. R. Evid. 403, 401; see also State v. Zaid, 249 Ariz. 154, 158 ¶ 13 (App. 2020).
¶12 Gardea has not shown the superior court abused its discretion in precluding evidence of specific prior wrongful acts by the victim. The court allowed three witnesses to provide reputation and opinion evidence of the victim's violent nature. Gardea also testified to his previous altercation with the victim. However, the court barred J.M. and M.B. from testifying regarding specific violent acts, questioning the relevance of such testimony and finding that it presented a "danger of unfair prejudice." See Ariz. R. Evid. 403, 401. Gardea had the opportunity to present several types of evidence to show the victim's character for violence in support of his self-defense justification argument. The court did not err in limiting the evidence.
II. The Court Did Not Err in Denying Gardea's Motions for Mistrial and for a New Trial Based on Prosecutorial Misconduct.
¶13 A ruling on a motion for mistrial or motion for a new trial based on a claim of prosecutorial error is reviewed for an abuse of discretion. State v. Newell, 212 Ariz. 389, 402 ¶ 61 (2006); State v. Mills, 196 Ariz. 269, 271 ¶ 6 (App. 1999). The court considers "(1) whether the prosecutor's statements called to the jury's attention matters it should not have considered in reaching its decision and (2) the probability that the jurors were in fact influenced by the remarks." Newell, 212 Ariz. at 402 ¶ 60.
¶14 In his motions before the superior court, Gardea argued the State's closing argument was improper because the statement that Gardea "had the advantage of reading all of the police reports, the DRs, before he testified" was a reference to evidence protected by the attorney-client privilege. On appeal, Gardea argues the fact that he had access to the documents was an impermissible statement not supported by the trial record. It is unclear whether the record shows Gardea had such access, but it is clear he was not asked about it during cross-examination. On appeal, Gardea cites no authority suggesting that such a closing argument, where access was mentioned once, supports a reversible error conclusion. To the contrary, "[w]ide latitude is given in closing arguments and counsel may comment on the evidence and argue all reasonable inferences therefrom." State v. Zaragoza, 135 Ariz. 63, 68 (1983). On this record, Gardea has not shown this reference constitutes prosecutorial misconduct resulting in reversible error.
¶15 Gardea also claims the State's closing argument called the credibility of Gardea's testimony into question, meaning "it is highly probable that [the State's] remarks [improperly] influenced the jury in reaching the verdict." Not so. A prosecutor does not violate a defendant's rights by observing, during closing arguments, that the defendant had an opportunity to conform his testimony at trial. Portuondo v. Agard, 529 U.S. 61, 73 (2000); see also United States v. Cabrera, 201 F.3d 1243, 1250 (9th Cir. 2000). Jurors are presumed to follow instructions, Elliott v. Landon, 89 Ariz. 355, 357 (1961), and the instructions, supra ¶ 7, sufficiently abated any potential prejudice.
¶16 Gardea argued before the superior court that the State's closing argument was improper because the fact that Gardea had access to the information was privileged. On appeal, however, Gardea makes no such argument, and it is therefore waived. State v. Escalante, 245 Ariz. 135, 138 ¶ 1 (2018) ("When a defendant fails to object to trial error, he forfeits appellate relief absent a showing of fundamental error"); see also State v. Sanchez, 200 Ariz. 163, 166 ¶ 8 (App. 2001) (finding waiver for failure to develop argument). Thus, Gardea has shown no reversible error in the State's closing arguments.
CONCLUSION
¶17 Gardea's conviction and sentence are affirmed.