Opinion
No. 1 CA- CR 10-0781
05-17-2012
STATE OF ARIZONA, Appellee, v. RAMIRO JAVIER GARIBAY, Appellant.
Thomas C. Horne, Attorney General Phoenix By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Division William Scott Simon, Assistant Attorney General Attorneys for Appellee Bruce Peterson, Maricopa County Legal Advocate Phoenix By Thomas J. Dennis, Deputy Legal Advocate Attorneys for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR 2009-007687-001DT
The Honorable Susanna C. Pineda, Judge
AFFIRMED
Thomas C. Horne, Attorney General Phoenix
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Division
William Scott Simon, Assistant Attorney General
Attorneys for Appellee
Bruce Peterson, Maricopa County Legal Advocate Phoenix
By Thomas J. Dennis, Deputy Legal Advocate
Attorneys for Appellant
TIMMER, Presiding Judge
¶1 Ramiro Javier Garibay appeals his convictions and related sentences imposed after juries found him guilty of aggravated assault and theft of means of transportation. The issues raised by Garibay pertain solely to his conviction for aggravated assault; no challenge is made to the conviction for theft of means of transportation. For reasons that follow, we affirm.
BACKGROUND
¶2 During the early morning hours of August 12, 2009, a police officer attempted to contact a man he spotted in a closed city park. The man assaulted the officer, punching him several times in the chest and stabbing him in the right bicep with a knife or other sharp object. The man then fled the park on foot.
¶3 While searching the park for evidence, the police recovered a black "hoodie" and a plastic grocery-type bag that contained vehicle-related documents and other paperwork from a vehicle the police later learned had been recently stolen. The hoodie and bag were found shoved inside park bushes. The police subsequently obtained surveillance video from a bus station where the vehicle had been stolen, which showed Garibay stealing the vehicle while wearing the black hoodie in the early morning hours before the assault on the officer.
¶4 The officer assaulted in the park identified Garibay as his assailant from a photographic line-up. When questioned by the police following his arrest, Garibay initially denied any involvement in the theft and the assault and offered contradictory details regarding his previous whereabouts and activities. After being confronted with the surveillance video, however, Garibay eventually admitted stealing the vehicle, but he never admitted assaulting the officer.
¶5 A grand jury indicted Garibay on one count each of aggravated assault, a class 2 felony and dangerous offense, and theft of means of transportation, a class 3 felony. On Garibay's motion, the trial court severed the counts for trial, reasoning that while evidence of the automobile theft would be admissible to show identity and motive with respect to the assault charge, evidence of the assault was not admissible on the theft charge.
¶6 The charge of theft of means of transportation was tried first, and the jury found Garibay guilty as charged. The court then impaneled a second jury for trial on the aggravated assault charge, and Garibay was again found guilty as charged. Based on a finding that Garibay had four prior felony convictions, the trial court sentenced him as a repetitive offender to consecutive, presumptive terms of imprisonment totaling twenty-seven years. This timely appeal followed.
DISCUSSION
A. Batson challenge
¶7 Garibay argues the trial court erred by denying his Batson challenge to the State's use of three of its six peremptory strikes to eliminate sixty percent of the Hispanic jurors from the prospective jury panel. When reviewing a challenge to a trial court's Batson ruling, we defer to the court's findings of fact unless they are clearly erroneous, but we review the court's application of the law de novo. State v. Lucas, 199 Ariz. 366, 368, ¶ 6, 18 P.3d 160, 162 (App. 2001). We will not set aside the court's ultimate decision unless it is clearly erroneous. State v. Newell, 212 Ariz. 389, 400, ¶ 52, 132 P.3d 833, 844 (2006).
Batson v. Kentucky, 476 U.S. 79 (1986).
¶8 The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits a party from exercising peremptory challenges in a racially discriminatory manner. Georgia v. McCollum, 505 U.S. 42, 44, 59 (1992). In determining whether a peremptory strike constitutes an equal-protection violation, the trial court must engage in a three-step analysis. State v. Murray, 184 Ariz. 9, 24, 906 P.2d 542, 557 (1995) (citing Purkett v. Elem, 514 U.S. 765, 767 (1995)). First, the court must determine whether the opponent of a strike has established a prima facie showing of racial discrimination. Id. Second, if the requisite showing is made, the burden of production shifts to the proponent of the strike to provide a race-neutral explanation for the strike. Purkett, 514 U.S. at 767. Third, if a race-neutral reason is tendered, the trial court must determine whether the opponent of the strike has carried his burden of proving purposeful discrimination. Id. Throughout this process, the burden of persuasion remains with the party challenging the strike as discriminatory. Id. at 768.
¶9 During jury selection at Garibay's aggravated assault trial, the State used four of its six peremptory challenges to strike the sole Native American and three of five Hispanic members of the venire panel. Garibay objected, claiming the strikes were racially motivated because "[t]here's no other justification we can see that they would have [had to strike] those jurors." The court initially responded Garibay had not stated a prima facie case of racial motivation, reasoning the State had not used its remaining strikes to remove two other Hispanic jurors on the panel. But after reviewing Batson- related cases, the court asked the prosecutor to explain the strike of the Native American. The prosecutor stated his reasoning for the strike, and the trial court found it to be a legitimate race-neutral reason. Garibay does not challenge that ruling. The determinative issue before us is whether the court abused its discretion by finding that Garibay failed to make a prima facie case of discrimination concerning the Hispanic members of the venire panel.
Although the court provided some reasoning for finding that Garibay had not made a prima facie showing of racial discrimination, we urge the court to explain its reasoning more fully in future, similar situations. Whether a prima facie showing exists is dependent on the totality of the circumstances, see infra ¶ 10, which necessarily includes the court's observations of counsel, the venire panel, and the like, which cannot be gleaned from reading a transcript. In order to give us the best opportunity to meaningfully review the ruling and determine whether to defer to the trial court's discretion, that court should explain its reasoning to the fullest extent possible.
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¶10 A prima facie case of purposeful discrimination requires a "showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." State v. Paleo, 200 Ariz. 42, 43, ¶ 6, 22 P.3d 35, 36 (2001) (quoting Batson v. Kentucky, 476 U.S. 79, 93-94 (1986)). To decide whether such a showing is made, the court should consider all relevant circumstances, including the focus of the prosecutor's voir dire questions and whether the prosecutor engaged in a "'pattern' of strikes" against a particular ethnic group. Batson, 476 U.S. at 96-97.
¶11 Garibay argues the prosecutor's use of half his six peremptory challenges to eliminate three of five Hispanic panel members, and a fourth to remove the only Native American member, "[s]urely . . . raises at the very least a suspicion that a discriminatory motive may be present sufficient to require the prosecutor to explain his non-discriminatory reasons for the strikes." In support of his claim, Garibay cites several federal decisions holding that a defendant can make a prima facie showing based on statistical disparity alone. See, e.g., Williams v. Runnels, 432 F.3d 1102, 1107 (9th Cir. 2006) (holding prosecutor's use of three of four initial strikes to remove African-Americans when defendant was African-American and only one African-American remained sufficient to make prima facie showing). But statistical disparity in peremptory strikes is not the sole factor involved in determining whether a prima facie showing has been made. "[A]lthough a statistical disparity could be sufficient to make a prima facie inference of bias, such a presumption could be dispelled by other relevant circumstances." Id.; see also Fernandez v. Roe, 286 F.3d 1073, 1079 (9th Cir. 2002) ("Under Batson, we must consider 'all relevant circumstances' surrounding the challenges."); United States v. Stewart, 65 F.3d 918, 925 (11th Cir. 1995) ("Moreover, Batson teaches that a prima facie case determination should include an examination of 'all relevant circumstances.'"); United States v. Chinchilla, 874 F.2d 695, 698 (9th Cir. 1989) ("There is no magic number of challenged jurors which shifts the burden to the government to provide a neutral explanation for its actions. Rather, the combination of circumstances taken as a whole must be considered.").
¶12 Our supreme court has similarly held that a defendant does not always make a prima facie case by simply arguing that the prosecutor struck minority members from the panel:
The court of appeals noted that the defendant here is black and that he claims that two members of his race were stricken from the jury by the state. From this alone, the court concluded that a prima facie case of prosecutorial discrimination had been established. Under Batson, the totality of the circumstances of the particular case must be examined to determine whether an inference of misconduct by the state has been established. In some instances, striking two members of a defendant's race, particularly if they are the only two, may be enough to support a finding of prima facie discrimination. However, we do not read Batson as requiring such a finding every time two members of a minority are stricken from a jury being selected to try a member of the same minority.State v. Holder, 155 Ariz. 83, 87, 745 P.2d 141, 145 (1987).
¶13 In the present case, there are several circumstances from which the trial court could reasonably find that there was no prima facie showing of purposeful discrimination in the striking of the three Hispanic panel members. First, the prosecutor's voir dire examination did not suggest any discriminatory purpose in the strikes. See State v. Jordan, 171 Ariz. 62, 66, 828 P.2d 786, 790 (App. 1992) (affirming trial court's finding that the defendant failed to make prima facie case of discrimination, noting nothing in voir dire examination suggested discriminatory purpose). Second, there were two other Hispanic members of the venire panel who were not struck by the prosecutor. The presence of these two jurors undermines any inference that the prosecutor's strikes of the three other Hispanic jurors were motivated by racial discrimination. State v. Thompson, 190 Ariz. 555, 557, 950 P.2d 1176, 1178 (App. 1997). Third, and finally, as the prosecutor informed the court when explaining his reasons for striking the Native American panel member, the victim of the assault was also Hispanic, thereby weakening any prosecutorial motive to eliminate Hispanic members from the jury. See People v. Creasy, 606 N.E.2d 1250, 1252 (Ill. 1992) ("Among those facts and relevant circumstances a circuit court can consider, in determining whether a prima facie case of intentional discrimination exists, are . . . the racial identities of defendant, the victims, and the witnesses . . . .").
¶14 On this record, we cannot say the trial court abused its discretion by ruling that Garibay failed to make a prima facie showing that would require an inquiry into the prosecutor's reasons for striking the three Hispanic jurors.
B. Other-act evidence
¶15 Garibay next argues the trial court erred in permitting the State to introduce evidence of his theft of the automobile the day before the police officer was assaulted at the park. He contends the court erred by failing to preclude this evidence pursuant to Arizona Rules of Evidence ("Rule") 403 and 404(b). We review a trial court's ruling on the admissibility of other-act evidence for abuse of discretion. State v. Villalobos, 225 Ariz. 74, 80, ¶ 18, 235 P.3d 227, 233 (2010).
¶16 Rule 404(b) prohibits evidence of other acts "to prove the character of a person in order to show action in conformity therewith" but allows such evidence "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Other-act evidence is admissible if: (1) the evidence is admitted for a proper purpose; (2) the evidence is relevant; (3) the evidence is not unfairly prejudicial under Rule 403; and (4) the judge gives "an appropriate limiting instruction upon request." State v. Nordstrom, 200 Ariz. 229, 248, ¶ 54, 25 P.3d 717, 736 (2001), abrogated on other grounds by State v. Ferrero, ___ Ariz. ___, ___, ¶ 20, 274 P.3d 509, ___ (2012). In addition, the State must prove by clear and convincing evidence that the other act occurred and that the defendant committed the act. State v. Terrazas, 189 Ariz. 580, 584, 944 P.2d 1194, 1198 (1997).
¶17 Garibay does not dispute the existence of clear and convincing evidence that he stole the automobile the morning before the officer was assaulted. Instead, he focuses on whether the evidence was admissible for a proper non-character purpose and whether it was unfairly prejudicial.
¶18 Other-act evidence is properly admitted under Rule 404(b) when it tends to show guilt on a basis other than disposition toward criminality. State v. Ramirez Enriquez, 153 Ariz. 431, 432, 737 P.2d 407, 408 (App. 1987). The identity of the officer's assailant was the principal issue at Garibay's trial on the aggravated assault charge. Given that Garibay wore a black hoodie while stealing the automobile and that papers removed from that vehicle were found in the park where the assault occurred, evidence of his theft of the automobile tended to prove his presence in the park and therefore was relevant to proving he was the person who assaulted the officer. See Rule 401 ("Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.").
¶19 Further, the fact Garibay committed the theft provides a motive for committing the unprovoked assault on the police officer when that officer attempted to contact him in the park, i.e. , avoiding what Garibay believed was an impending arrest for the theft. "Although motive is not an element of a crime, a trial court may admit evidence of a defendant's other misconduct if the misconduct furnished or supplied the motive for the charged crime." State v. Williams, 183 Ariz. 368, 376, 904 P.2d 437, 445 (1995); see also State v. Martinez, 196 Ariz. 451, 459-60, ¶¶ 32-33, 999 P.2d 795, 803-04 (2000) (evidence of prior armed robbery by defendant admissible to establish identity and motive for murder of officer); State v. Beasley, 205 Ariz. 334, 337, ¶ 14, 70 P.3d 463, 466 (App. 2003) (concluding other-act evidence admissible to explain defendant's conduct in fleeing from and firing upon officers). Consequently, the trial court did not abuse its discretion by ruling that evidence of the theft was admissible for relevant, non-character purposes.
¶20 We also reject Garibay's contention that the court erred by failing to exclude the evidence pursuant to Rule 403, which mandates the exclusion of otherwise relevant evidence when its probative value is substantially outweighed by the danger of unfair prejudice. "Evidence is unfairly prejudicial if it has 'an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.'" State v. Mills, 196 Ariz. 269, 275, ¶ 28, 995 P.2d 705, 711 (App. 1999) (citation omitted). There is nothing about the theft of the automobile that would mandate exclusion of this evidence under Rule 403. Although theft is a crime, it is decidedly dissimilar to the charged offense of assault. Thus, while the other-act evidence was prejudicial, it was not unduly so as it did not suggest a decision on an improper basis, but simply served to connect Garibay to the assault and provide a reason why he would commit the offense. Considering the nature of the other-act evidence in the context of the overall case, the trial court acted within its discretion by concluding that the probative value of this evidence was not "substantially outweighed by a danger of . . . unfair prejudice." Rule 403.
¶21 Finally, the trial court gave a limiting instruction both when the State introduced the other-act evidence and in the final jury instructions on the proper non-character use of this evidence. We presume that jurors follow their instructions. Newell, 212 Ariz. at 403, ¶ 68, 132 P.3d at 847. For this additional reason, we conclude the court did not abuse its discretion by admitting evidence of the vehicle theft.
C. Closing argument
¶22 Garibay finally argues the prosecutor engaged in misconduct by utilizing the other-act evidence in closing argument for an impermissible purpose. He asserts that rather than using the evidence of the automobile theft to show identity or motive, the prosecutor used this evidence to argue Garibay "was a liar and a thief and would do whatever it took to sidestep his actions, and who did not deserve the benefit of any doubt."
¶23 In evaluating the propriety of a prosecutor's closing argument, the critical inquiry is "whether remarks by a prosecutor . . . call to the attention of the jur[ors] matters that they would not be justified in considering in order to arrive at their verdict." State v. Turrentine, 152 Ariz. 61, 67, 730 P.2d 238, 244 (App. 1986). We disagree that the prosecutor improperly used the other-act evidence in closing argument. At no time did the prosecutor either say or imply the jury should convict Garibay on the assault charge because he stole the automobile or was otherwise a criminal or bad person. The prosecutor did label Garibay a "liar" based on the admitted lies he told the police when questioned following his arrest. But the prosecutor cited this evidence in arguing that the jurors should reject Garibay's denials of assaulting the officer. These remarks were directed squarely at Garibay's credibility, not his character for criminality, and were within the "wide latitude" granted to counsel, including prosecutors, to argue all reasonable inferences from the evidence admitted at trial. State v. Comer, 165 Ariz. 413, 426, 799 P.2d 333, 346 (1990); see also State v. Schrock, 149 Ariz. 433, 438-39, 719 P.2d 1049, 1054-55 (1986) (holding not improper for prosecutor to argue defendant lied where supported by the record); State v. Smith, 146 Ariz. 491, 500, 707 P.2d 289, 298 (1985) (deciding no error in permitting use of other-act evidence to impeach defendant's credibility).
CONCLUSION
¶24 For the foregoing reasons, we affirm Garibay's convictions and sentences.
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Ann A. Scott Timmer, Presiding Judge
CONCURRING:
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Patricia K. Norris, Judge
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Donn Kessler, Judge