Opinion
No. 1 CA-CR 13-0586
06-24-2014
STATE OF ARIZONA, Appellee, v. REBECCA LOYA, Appellant.
Arizona Attorney General's Office, Phoenix By Craig W. Soland Counsel for Appellee David Goldberg, Esq., Fort Collins, CO By David Goldberg Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in La Paz County
No. S1500CR201100205
The Honorable Michael J. Burke, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Craig W. Soland
Counsel for Appellee
David Goldberg, Esq., Fort Collins, CO
By David Goldberg
Counsel for Appellant
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Michael J. Brown joined. THOMPSON, Judge:
¶1 Defendant, Rebecca Loya, appeals from her sentences and convictions on two counts of second degree murder, each a class 1 felony. The convictions arise out of a collision that occurred on August 15, 2011 on westbound I-10 near the California border, when defendant drove her Toyota Highlander into the rear end of a Nissan Quest travelling in her same lane, killing two young boys who were seated in the rear seat of the Quest. Defendant asserts that (1) insufficient evidence supports the convictions for second degree murder, (2) prosecutorial misconduct created fundamental error that deprived her of a fair trial, and (3) the trial court abused its discretion in sentencing her to concurrent presumptive sentences on the offenses. For reasons set forth below, we affirm. I. Sufficiency of the Evidence of Second Degree Murder
Defendant was also convicted of one count of aggravated assault resulting in serious physical injury; a class 3 dangerous felony, one count of aggravated assault with a dangerous instrument, a class 3 dangerous felony; and two counts of extreme DUI (impaired and extreme), each a class 1 misdemeanor. She does not appeal from these charges.
¶2 At the close of the state's evidence, defendant moved for a directed verdict which the trial court denied. Defendant argues that her second degree murder convictions are not supported by sufficient evidence that her conduct manifested "extreme indifference to human life which created a grave risk of death to another." She maintains that the evidence supported only a conviction for manslaughter and asks that we reduce her convictions accordingly and remand for resentencing. Contrary to defendant's contentions, more than sufficient evidence supports the jury's second degree convictions.
Specifically, defense counsel stated: "We'd ask the Court to throw out the second-degree murder charges. We don't feel there's been enough evidence presented to the Court to show that [defendant] was reckless, disregarded, knew about the risk, and caused the death of another person."
In addition to manslaughter, the trial court also instructed the jury on the lesser-included offense of negligent homicide. A.R.S. § 13-1102 (2010).
¶3 "The question of sufficiency of the evidence is one of law, subject to de novo review on appeal." State v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191 (2011). In doing so, we view all of the evidence in the light most favorable to sustaining the jury's verdicts and resolving all reasonable inferences against the defendant. State v. Bible, 175 Ariz. 549, 595, 858 P.2d 1152, 1198 (1993). "We review the sufficiency of evidence presented at trial only to determine if substantial evidence exists to support the jury verdict." State v. Stroud, 209 Ariz. 410, 411, 103 P.3d 912, 913 (2005). Substantial evidence is proof that "reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990). "Reversible error based on insufficiency of the evidence occurs only when there is a complete absence of probative facts to support the conviction." State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610 (1996).
¶4 The difference between second degree murder and manslaughter, and the main issue of contention at trial, is the degree of culpable "recklessness" that is attributable to defendant's conduct. A person commits second degree murder if "[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)(3) (2010). A person is guilty of manslaughter if the person "recklessly caus[es] the death of another person." A.R.S. § 13-1103(A)(1) (2010). As we have previously stated, "[t]he phrase 'manifesting extreme indifference to human life' does not create an additional culpable mental state but only requires an extreme form of recklessness greater than is required for manslaughter." State v. Woodall, 155 Ariz. 1, 3, 744 P.2d 732, 734 (App. 1987). Furthermore, whether such "'extreme indifference' to human life exists is to be determined from all the facts and circumstances surrounding the vehicular homicide." Id. Consequently, this determination is clearly a factual matter for the jury to decide. Id. In the first instance, therefore, the trial court here did not abuse its discretion in denying the Rule 20 motion when it concluded that "the degree of recklessness" was an issue for the jury.
¶5 In the present case, substantial evidence supports the jury's finding that, "under circumstances manifesting extreme indifference to human life," defendant engaged in conduct that created "a grave risk of death" and thereby caused the death of the two young boys in the Nissan Quest. The evidence established that defendant, who by her own admissions was tired and stressed, purchased alcohol and proceeded to consume it while planning to drive straight through from El Paso to her home in Newhall, California. In fact the evidence showed that defendant consumed enough alcohol that her BAC was more than two times the legal limit at the time of driving. Furthermore, despite the fact that she realized she had "gone off the road some," the evidence was that defendant's driving continued to be aggressive and dangerous to other drivers. Some of her surrounding drivers, who testified as eyewitnesses at trial, described her driving several miles before the collision as "erratic" and "dangerous" and testified that her driving "scared" them and struck them as "dangerous." Defendant's driving was sufficiently frightening to the drivers around her that several of the eyewitnesses called 911 multiple times to report it. Witnesses described defendant as repeatedly driving two and sometimes all four wheels of her Highlander over the fog line on the side of the highway, speeding up and slowing down constantly, and weaving in and out of traffic repeatedly at speeds of up to 80 m.p.h. in order to "fill in the hole" between cars and "improve her position." Witnesses testified that defendant "consistently" passed too close to other vehicles, and one witness described how he watched defendant overcorrect while passing a tractor trailer rig and almost collided with the truck's rear tires in the process. Several witnesses testified that, based on their observations of her driving, they knew defendant was going to either injure herself or someone else.
¶6 Most telling, however, was the evidence that defendant actually pulled into a rest area prior to the collision and could have chosen to stay there. Instead, according to defendant, after using the restroom and throwing out some empty beer bottles, she resumed driving. Within minutes of leaving the rest area, defendant collided with the rear of the Quest at an estimated speed at impact of between 84-91 m.p.h., without ever applying her brakes. The impact was sufficient to blow out all the windows in the Quest and to create a 42.48 inch intrusion into the rear of the vehicle at the deepest part of the crush. This evidence constitutes enough substantial evidence to justify the jury's finding of "extreme indifference" required for second degree murder.
II. Prosecutorial Misconduct
¶7 Defendant maintains that the prosecutor engaged in several instances of misconduct, the cumulative effect of which deprived her of a fair trial and requires that she receive a new trial. Defendant admits that she raised no objections at trial to the various statements she now claims as misconduct. She has therefore forfeited her right to appellate relief on this basis unless she can prove that "fundamental error exists and that the error in [her] case caused her prejudice." State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19-20, 115 P.3d 601, 607 (2005). "To prevail on a claim of prosecutorial misconduct, a defendant must demonstrate that the prosecutor's misconduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process." State v. Martinez, 230 Ariz. 208, 214, ¶24, 282 P.3d 409, 415 (2012) (citation omitted). Prosecutorial misconduct "is not merely the result of legal error, negligence, mistake or insignificant impropriety, but, taken as a whole, amounts to intentional conduct which the prosecutor knows to be improper and prejudicial, and which he pursues for any improper purpose with indifference to a significant danger of mistrial or reversal." Pool v. Superior Court, 139 Ariz. 98, 108-09, 677 P.2d 261, 271-72 (1984). While we agree that the prosecutor did commit misconduct in some instances, we find that defendant has not shown that it rose to the level of fundamental error in this case and that the error caused her prejudice.
¶8 "Prosecutorial vouching takes two forms: (1) where the prosecutor places the prestige of the government behind its [evidence] [and] (2) where the prosecutor suggests that information not presented to the jury supports the [evidence]." State v. Newell, 212 Ariz. 389, 402, ¶ 62, 132 P.3d 833, 846 (2006). See also State v. Lee, 185 Ariz. 549, 554, 917 P.2d 692, 697 (1996) ("It is impermissible for a prosecutor to place the prestige of the government behind his witnesses or to suggest that information not presented to the jury supports a witness's testimony.")
¶9 The first allegation of misconduct concerns the prosecutor's comments in his opening statement. These include statements such as: (1) "advising the jury that this was not an "accident" case as [defendant] intended to drive over 800 miles by herself without any, that we have been able to find, meaningful overnight stays in hotels or anything;" and (2) "putting hundreds of her fellow motorists at risk while she's sucking down Heineken beers the whole way." Defendant maintains these were instances of "evidence outside the record." First, we note that these statements are more appropriate for closing argument than opening statements which are simply intended to give the jury a preview of what the evidence will be at trial, and the prosecutor should have known better. Contrary to defendant's arguments however, these statements were not alluding to evidence outside the record but simply the prosecutor's argument about what the evidence would establish, including evidence that defendant was aware of the risk her driving behavior created. As far as the "we have been able to find" comment is concerned, it was undisputed that defendant chose to drive through from El Paso to California. Although these statements should have been reserved for closing argument, we do not find that they constituted misconduct.
In fact, the prosecutor stated that the matter was an accident, which was why defendant was charged with second degree and not some other form of murder. His point was that she was aware of the risks she was taking and the "accidental part" was only the resultant collision.
¶10 Defendant next points to the following comments in the opening statement as improper expression of the prosecutor's personal belief about what defendant knew:
The question becomes is [defendant] aware that she has become a danger to the road. Well, I don't know how she could not be aware when she's virtually off the freeway. I don't know how she cannot be aware when she's had a opportunity to pull into a safe haven . . .. I don't find - I don't think you will find that there's an excuse for leaving the [rest stop] at three o'clock in the afternoon in that condition and to resume driving. I don't think we'll ever find out what she was in such a hurry to get to at home. I don't think we'll ever know was there an appointment? Was there some reason she could not stop? I don't think we will ever know that.Again, these statements are more appropriate for argument than as a "preview" of what the evidence. Furthermore, use of the personal pronoun is inadvisable as it is highly inappropriate for a prosecutor to convey his or her personal belief about the credibility of a witness. Martinez, 230 Ariz. at 215, ¶ 30, 282 P.3d at 409. However, while troubling, when taken in context we do not find that the statements were intended to convey, or did convey, a "personal belief" about defendant's veracity. These statements were aimed, however injudiciously, at argument about the evidence to come. Furthermore, the trial court had immediately prior to the prosecutor's opening statements instructed the jury that evidence consisted of the testimony of "witnesses" and that what the attorneys said in their opening statements "was not evidence." We presume that the jury followed this instruction when reaching its verdicts. See State v. LeBlanc, 186 Ariz. 437, 439, 924 P.2d 441, 443 (1996).
¶11 Defendant next argues that several comments the prosecutor made in his closing argument also expressed his personal opinion about her veracity. With the exception of two such comments, we find no impropriety. One exception is when the prosecutor, referring to defendant's explanation regarding her seeming lack of concern for the victims at the site of the collision, stated: "I don't believe [defendant] didn't see all [the helicopters]. There were helicopters out there. She made no effort. . . . I believe [defendant] was thinking about how she's going to get out of this." The second occurred in rebuttal when he referred to defendant's emotional display of remorse in court, "Quite frankly, I didn't believe this. This struck me as, you know, she had almost two years to think about this and how she's going to get up here and do this." As stated above, it is highly inappropriate for a prosecutor to convey his personal belief about a witness's credibility, and we find that happened here. There were many other ways for the prosecutor to have conveyed his same arguments without interposing his belief about defendant's testimony. Nonetheless, in light of the overwhelming evidence against defendant in this case, we do not find that these isolated comments so infected the trial with unfairness as to amount to reversible error that deprived defendant of a fair trial. See Martinez, 230 Ariz. at 214, ¶ 24, 282 P.3d at 415. Furthermore, the prosecutor never suggested that the jury base its verdict on his opinion or belief about defendant's testimony, but also reminded the jury in closing, "if you don't believe that she was reckless, if you don't believe that her recklessness rose to the level of extreme" then they could not convict her of second degree murder. We strongly caution the prosecutor against interjecting his opinion of a witness's testimony in the future.
¶12 Defendant contends that the prosecutor also improperly referred to "items never admitted in evidence" in his closing when he referred to MADD campaigns, movies against drunk driving people watched in driving classes, the "nationwide campaign against drunk driving" started in the 1960's, a brochure about "Goggle glasses" that simulate drunk driving for training purposes, and a funeral home that offered free burials on New Year's Day, to support his contention that defendant, a teacher and former reserve police officer, had to have been aware of the significant risk she ignored when she drank and drove. As the prosecutor stated at the end of these comments, "my point is don't drink and drive is a national campaign over and over . . . literally stuffed down our throats . . . [f]riends don't let friends drive drunk." Prosecutors are granted wide latitude in presenting their closing arguments to a jury. State v. Jones, 197 Ariz. 290, 305, ¶ 37, 4 P.3d 345, 360, (2000) (citation omitted). We do not find that these references were intended to suggest to the jury that evidence not presented to them supported the convictions. They were merely arguments alluding to matters of common knowledge to members of the general public and do not rise to the level of misconduct. See State v. Williams, 107 Ariz. 262, 264, 485 P.2d 832, 834 (1971) ("range of discussion and argumentation is very wide and matters of common knowledge may be referred to").
¶13 One of the officers who contacted defendant at the scene of the collision testified that defendant refused to allow him to look at her eyes. He also testified that she asked for her reading glasses and asked him several questions about the search warrant he presented to her in order to obtain a blood sample. During cross-examination, the prosecutor asked defendant to explain why she refused to permit the officer to look at her eyes. Defendant maintained that she refused because she was "in trauma" and because she had been crying. The prosecutor also asked her to explain why she had questioned the search warrant. Defendant replied, "Doesn't everybody look at what - - at the document they sign?" The prosecutor elicited the additional testimony that defendant had been in "law enforcement," that she "knew what most people [know about their rights] and a little extra," and that she was "exercising [her] rights on that fateful day." Defendant argues that this was misconduct because the prosecutor was improperly commenting on defendant's "invocation of . . . her Fourth Amendment rights." This argument is without merit.
Defendant questioned the fact that the officer initially presented her with a copy, not the original, of the search warrant and also asked him about a blank item in the document before signing.
¶14 It is error for a prosecutor to introduce evidence of a defendant's exercise of his or her Fourth Amendment right as evidence of guilt. State v. Palenkas, 188 Ariz. 201, 211, 933 P.2d 1269 (App. 1996). Defendant maintains that the prosecutor improperly used the refusal to cooperate with the officer and her questioning of the search warrant as "consciousness of guilt." This misstates the evidence. The prosecutor here never suggested that defendant was guilty solely because she would not permit the officer to examine her eyes or because she chose to question the validity of the search warrant before complying with it. The sole use of the testimony was to counter defendant's contentions that she had been so distraught and "traumatized" on the day of the collision that she was not consciously aware of the extreme recklessness of her behavior and of the grave risk of death to which it gave rise. As the prosecutor later argued:
This lady is as aware as anyone that I've ever met. She's aware even when she's nervous. She's putting on her glasses and reading legal documents even if she's crying. She's aware. If there's ever an example that you want to see of a person who's aware of the risk that they're taking that's it. She's reckless because she's aware and she did it anyway.This questioning was not an improper comment on defendant's invocation of her constitutional rights and does not constitute misconduct.
Defendant claims that the prosecutor's use of this turn of phrase is another instance of the prosecutor's expression of his personal belief about the defendant's credibility. We find it is merely a generalization intended as argument and that the jury would have viewed it as that, not an expression of the prosecutor's personal gauge of awareness. See Jones, 197 Ariz. at 305, ¶ 37, 4 P.3d at 360 (prosecutors given wide latitude to argue inferences). Furthermore, the jurors saw defendant testify in this case and could evaluate the prosecutor's argument for themselves.
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¶15 Defendant also claims that the prosecutor committed misconduct during closing argument by making statements to "inflame the jury" as well as statements urging the jury to convict in order to protect the community and the "travelling public." A prosecutor exceeds his authority when he uses his remarks "to inflame the minds of the jurors with passion or prejudice or influence the verdict in any degree." State v. Herrera, 174 Ariz. 387, 396 n.11, 850 P.2d 100, 109 n.11 (1993) (quoting State v. Merryman, 79 Ariz. 73, 75, 283 P.2d 239, 241 (1955)).
¶16 We agree with defendant that certain of the prosecutor's arguments in this case were uncalled for and skirted on the impermissible. That includes arguments based on comments such as: "We don't get our own revenge . . . only you can compensate the victims for what has happened to them" and "[w]hat you need to do is give justice, not just to [the two boys], but to the entire community because that's the only way we're going to stop people from taking the law into their own hands . . . is if you take the law into your hands. Do what you should do." Nonetheless, the prosecutor never suggested by his comments that these were the reasons that the jurors should convict defendant. See id. (prosecutor exceeds authority when he appeals to jurors' emotions, passions, prejudices to urge conviction "for reasons wholly irrelevant to [defendant's] guilt or innocence"). Instead, the prosecutor acknowledged in his closing arguments that it was up to the jurors to deliberate and determine the level of crime of which defendant was guilty and that they should find that the state had proven all of the elements of second degree murder.
¶17 While we find the type of comments made by the prosecutor here improper, we find that they did not rise to the level of reversible error. Based on our review of the entire record, we conclude that defendant here was not convicted on the basis of these comments and they did not deny her a fair trial. Henderson, 210 Ariz. at 567, ¶ 20, 115 P.3d at 607. See also Newell, 212 Ariz. at 403, ¶ 67, 132 P.3d at 847 (improper comments do not require reversal unless "so serious" there is reasonable likelihood they affected the jury's verdicts or denied defendant of fair trial) (citations omitted). Therefore reversal is not warranted on this basis.
¶18 Defendant nonetheless urges us to find that the cumulative effect of the prosecutor's improper conduct here was prejudicial error. Reversal on the basis of prosecutorial misconduct is only appropriate if the conduct is "so pronounced and persistent that it permeates the entire atmosphere of the trial" and makes the resultant conviction a denial due process. State v. Hughes, 193 Ariz. 72, 79, ¶ 26, 969 P.2d 1184, 1191 (1998). Even if there was no error or an error was harmless and did not, by itself, warrant reversal, an incident may still contribute to a finding of "persistent and pervasive misconduct" if the cumulative effect of the incidents shows that the prosecutor "intentionally engaged in improper conduct and 'did so with indifference, if not a specific intent to prejudice the defendant.'" State v. Roque, 213 Ariz. 193, 228, ¶ 155, 141 P.3d 368, 403 (2006).
¶19 On this record, we do not find that the misconduct here so permeated the entire atmosphere of the trial with unfairness that it denied defendant of due process or a fair trial. We do however caution the state that, in other circumstances where the evidence against a defendant is not as overwhelming as it was in this case, our conclusion might not be the same. Because defendant has not established either fundamental error or prejudice, reversal on the basis of the misconduct in this case does not warrant reversal. See Henderson, 210 Ariz. at 567, ¶ 20, 115 P.3d at 607.
III. Abuse of Discretion/Sentencing
¶20 The trial court acknowledged that defendant, who was a former teacher and school psychologist and a retired reserve officer with the Los Angeles Police Department, had led "an exemplary lifestyle" prior to the events of August 15, 2011. Despite that fact and despite defendant's many years of community service and lack of prior criminal involvement, the trial court found that the mitigating circumstances were not sufficient to impose the minimum sentence when balanced "against the facts that came out at trial." The court stated:
I am using the exemplary lifestyle and mitigating circumstances in making these sentences concurrent and not consecutive. And another reason for doing that is because this wasn't an intended act, and each one of the victims wasn't specifically targeted by [defendant], and it was certainly tragic and fortuitous that there were [sic] more than one person in the vehicle, but that it wasn't her intent . . . that each specific individual be killed or injured.
¶21 On appeal, defendant maintains that this reasoning demonstrates that the trial court abused its discretion because it "refused to exercise its discretion." According to defendant the court "violated basic sentencing procedures by recognizing valid reasons for imposing concurrent sentences other than mitigating circumstances and thereafter refusing to consider the mitigating circumstances found proven in the absence of any aggravating circumstances." She contends that, "because it is unclear whether the court would have imposed a mitigated term after justifiably imposing concurrent terms for other relevant reasons," we should remand for resentencing. This argument is without merit.
¶22 Because defendant also failed to raise this argument before the trial court, we again limit ourselves to a fundamental error review. Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607. "Imposition of an illegal sentence constitutes fundamental error." State v. Thues, 203 Ariz. 339, 340, ¶ 4, 54 P.3d 368, 369 (App. 2002). We find no error, let alone fundamental error, in the sentences imposed. See State v. Lavers, 168 Ariz. 376, 385, 814 P.2d 333, 342 (1991).
¶23 "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, 535, ¶ 4, 145 P.3d 631, 632 (App. 2006). "[E]ven when only mitigating factors are found, the presumptive term remains the presumptive term unless the court, in its discretion, determines that the amount and nature of the circumstances justifies a lesser term." Id. at ¶ 5. Although a trial judge must consider all the 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) (citation omitted).
¶24 The presumptive sentence for second degree murder is sixteen calendar years in prison. A.R.S. § 13-710 (2010). Contrary to defendant's contentions, the trial court clearly considered the mitigating factors and clearly found that they were not sufficient to justify a sentence below the presumptive. Nonetheless, the court found that they merited consideration among the factors it considered in favor of concurrent sentences. In evaluating the substance and weight of the mitigating factors, the trial court here acted well within its broad discretion and ultimately imposed a lawful sentence that is also well within its discretion. Thus, defendant has failed to establish that the trial court committed error, let alone fundamental error, in sentencing her to concurrent presumptive sentences on the two second degree murder counts.
¶25 For the foregoing reasons, we affirm defendant's convictions and sentences.