Opinion
No. 2 CA-CR 2016-0391
06-29-2018
THE STATE OF ARIZONA, Appellee, v. JESSE GILBERT ORANTEZ, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Kathryn A. Damstra, Assistant Attorney General, Tucson Counsel for Appellee Barton & Storts P.C., Tucson By Brick P. Storts, III Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20141940002
The Honorable Danelle B. Liwski, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Kathryn A. Damstra, Assistant Attorney General, Tucson
Counsel for Appellee Barton & Storts P.C., Tucson
By Brick P. Storts, III
Counsel for Appellant
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred. ESPINOSA, Judge:
¶1 Following a jury trial, Jesse Orantez was convicted of five counts each of kidnapping, armed robbery, aggravated robbery, and assault, one count of first-degree burglary, and one count of impersonating a peace officer. The trial court sentenced him to a combination of concurrent and consecutive prison terms totaling 78.75 years. On appeal, Orantez argues the court erred in admitting certain evidence and in denying his motion for a mistrial. For the following reasons, we affirm.
Factual and Procedural Background
¶2 The charges against Orantez stemmed from a home invasion that occurred in March 2014. We recount the pertinent facts in a light that supports the jury's verdicts. State v. Wright, 239 Ariz. 284, ¶ 2 (App. 2016). On the day of the offenses, Orantez and Mark Marrero contacted Carlos Malave and asked to use his Crown Victoria sedan, which looked like "a police-type" car. Orantez "plugged in" some police lights and drove the car, with Marrero and Malave as passengers.
¶3 Later that day, M.A. came home with his four children and parked his pickup truck off the alleyway behind their home. As the family walked to the back gate, M.A. saw a Crown Victoria "flying down" the alley with flashing red and blue lights. The car stopped, Orantez and Marrero jumped out, and Orantez claimed, "I'm DEA," and accused M.A. of selling drugs. Orantez patted M.A. down and removed his necklace, bracelet, cell phone, and keys. The men then forced M.A. and the children into M.A.'s bedroom, and Orantez watched them while the others ransacked the home and M.A.'s truck. As the men were leaving, Marrero grabbed M.A.'s daughter, warned him not to move or he would kill her, and backed out of the house with a gun pointed at the child's head. The men then fled in Malave's car. Orantez was subsequently arrested, tried, convicted, and sentenced as described above. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
DEA usually refers to the United States Drug Enforcement Administration.
Admission of Cell Phone Evidence
¶4 Orantez first argues the trial court erred by admitting a cell phone and its call records because "the items were not shown to be what the State purported them to be: phones owned and/or operated by [him] at the time of the incident." Orantez contends the chain of custody was never established because a detective "was unable to testify how the cell phone[] came to be in his custody, and no other witness provided that testimony." He thus argues the evidence was erroneously admitted because, quoting State v. Hardy, the chain-of-custody evidence "did not 'strongly suggest the exact whereabouts of the exhibit at all times.'" 112 Ariz. 205, 207 (1975). We review for an abuse of discretion a trial court's conclusion that evidence has an adequate foundation. State v. McCray, 218 Ariz. 252, ¶ 8 (2008).
¶5 Rule 901(a), Ariz. R. Evid., provides that to authenticate or identify a piece of evidence for admission, "the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." This foundation may be established either through identification testimony or by demonstrating a chain of custody. State v. Steinle, 239 Ariz. 415, ¶ 24 (2016). Chain-of-custody authentication "must show continuity of possession, but it need not disprove every remote possibility of tampering." McCray, 218 Ariz. 252, ¶ 9, quoting State v. Spears, 184 Ariz. 277, 287 (1996). Additionally, a party "need not call every person who had an opportunity to come in contact with the evidence sought to be admitted." Id., quoting State v. Hurles, 185 Ariz. 199, 206 (1996). And any concern about the chain of custody being flawed, incomplete, or uncertain goes to the weight of the evidence, not its admissibility. See State v. Fell, 242 Ariz. 134, ¶ 6 (App. 2017) (uncertainty); McCray, 218 Ariz. 252, ¶ 15 (incompleteness); State v. Morales, 170 Ariz. 360, 365 (App. 1991) (flaws).
¶6 At trial, a detective testified that when Orantez was arrested, he was brought to a police substation and items were removed from his pocket and placed in a paper bag outside his cell door. Another detective later removed cell phones and a wallet with Orantez's identification from the paper bag. He catalogued the items, and named one cell phone "Jesse03." During trial, the detective identified "Jesse03" and the phone was introduced as one he had catalogued at the police substation.
¶7 Orantez asserts the state failed to prove chain of custody because no one testified that the cell phone had been taken from his person. In support, he cites McCray, in which the state established chain of custody for DNA evidence through a detective's testimony that he was present when swabs of DNA were taken from the victim and had delivered the samples to the Department of Public Safety. 218 Ariz. 252, ¶ 10. But McCray does not purport to set the minimum standard for establishing chain of custody, see id. ¶¶ 8-15, and Orantez cites no authority suggesting the detective's testimony was insufficient to establish foundation for the cell phone. As the state points out, in State v. Emery, our supreme court rejected a chain-of-custody challenge based on a lack of origination information. 141 Ariz. 549, 551 (1984). There, the defendant had challenged the foundation for admission of his shoes, which matched imprints found outside the victim's home after her death, because the detective could not remember physically removing or observing someone else take the shoes from the defendant. Id. The court found sufficient foundation in the detective's testimony that he recognized the shoes as the defendant's and an identifying card placed with them by another detective. Id. That principle applies here as well.
¶8 Orantez additionally argues the state failed to establish chain of custody because it did not prove the cell phone legally belonged to him, asserting it was "found in the back seat" of "a truck that was not his," and the phone was not subscribed to him. But he has identified no authority, nor are we aware of any, requiring that the cell phone be owned by or registered to him. To establish foundation for the cell phone, the state needed only to show it was authentic, or to "produce evidence sufficient to support a finding that the item is what the proponent claims it is," in this case, a cell phone found with Orantez when he was arrested. Ariz. R. Evid. 901(a).
¶9 Lastly, Orantez appears to challenge the state's foundation for admitting the associated cell phone records because police "could not determine who was using [the] phone at any given time." A detective testified that he connected a phone number found in Marrero's phone with the "Jesse03" phone and obtained the call records, which suggested the phone was in the vicinity of the home invasion around the time it was being committed. And at trial, the detective identified the cell phone call records as the ones he obtained during his investigation and confirmed they matched the cell phone collected from Orantez after he was arrested. This was sufficient to authenticate the records under Rule 901(a). Cf. Gagliardi v. Comm'r of Children & Families, 110 A.3d 512, 519 (Conn. App. Ct. 2015) (rejecting argument more evidence was required to show plaintiff authored text messages, noting, "A party proffering evidence does not have the burden to disprove all possible inconsistencies with authenticity, or prove beyond all doubt that the [evidence is] what the party purports [it] to be.").
Orantez has filed a notice of supplemental authority citing Carpenter v. United States, No. 16-402, 2018 WL 3073916, at *3 (U.S. June 22, 2018), which considered "whether the Government conducts a search under the Fourth Amendment when it accesses historical cell phone records that provide a comprehensive chronicle of the user's past movements." We need not address this issue here, however, because Orantez did not challenge the constitutionality of the call records below or in his briefs, the foundation argument he did make alleged no prejudice, and he could not have been prejudiced by the records in any event, given the small role they played and the overwhelming evidence of his guilt. Moreover, even were we to consider the issue, the good-faith exception would apply to the state's routine procurement of the third-party call records here. See State v. Jean, 243 Ariz. 331, ¶ 40 (2018) (searches conducted in reasonable reliance on appellate precedent not subject to exclusionary rule).
Denial of Motion for Mistrial
¶10 Orantez next argues the trial court erred in denying his motion for a mistrial after Malave, one of the state's witnesses, referred to other-acts evidence Orantez asserts "left . . . a strong negative inference" he was "involved in other home invasions." We review the denial of a mistrial for an abuse of discretion. State v. Williamson, 236 Ariz. 550, ¶ 27 (App. 2015). "To determine whether a mistrial is warranted, courts consider '(1) whether the jury has heard what it should not hear, and (2) the probability that what it heard influenced [it].'" State v. Miller, 234 Ariz. 31, ¶ 25 (2013), quoting State v. Laird, 186 Ariz. 203, 207 (1996) (alteration in Miller). "A declaration of a mistrial is the most dramatic remedy for trial error and should be granted only when it appears that justice will be thwarted unless the jury is discharged and a new trial granted." State v. Leteve, 237 Ariz. 516, ¶ 33 (2015), quoting State v. Adamson, 136 Ariz. 250, 262 (1983).
¶11 About a month before trial, Orantez filed a motion to preclude Malave from testifying to "anything other than the home invasion that occurred on March 26, 2014." At trial, the state agreed "to be incredibly careful" to ensure Malave limited his testimony to the single home invasion for which Orantez was being tried. Before Malave testified, and outside the presence of the jury, the trial court told him, "[W]e don't want any testimony, any implication of anything, only March 26."
¶12 On direct examination, the state asked Malave about a phone call he received on that date. Specifically, the state asked Malave to whom he spoke during that call, and he responded, "Jesse Orantez." The state then asked what Orantez said, and Malave responded, "He asked me if I was in the car, the car that they were using for home invasions." Orantez immediately objected, and the trial court sustained the objection and struck Malave's testimony.
¶13 Later, after establishing that Malave's car looks like "a police-type" car, the state asked, "And when you were talking to Jesse Orantez, he asked to use your car in a home invasion?" Malave answered, "He asked me if I was in the car, and being what the car is, I know what the car [sic] because he has some police lights that were equipped for the car, so they were using my vehicle for, you know." The state asked Malave the purpose of the police lights, and he began to respond, "They were just using it to do --" but the state interrupted before he could finish his sentence. Orantez objected and, in a bench conference, moved for a mistrial, which the trial court denied. The next day, Orantez renewed his motion, which was again denied.
¶14 Although the court instructed Malave not to discuss other home invasions, and evidence of other home invasions may have been inadmissible under Rule 404(b), Ariz. R. Evid., the trial court struck the first brief reference and instructed the jury not to consider it. We presume the jurors followed the court's instructions. See State v. Morris, 215 Ariz. 324, ¶ 55 (2007). As for Malave's second challenged remark, he did not actually comment about other home invasions. And to the extent his testimony could have suggested Orantez had been involved in others, we conclude any error was harmless in light of the overwhelming evidence of Orantez's guilt presented over six days of trial, the remark having been incomplete and fleeting, and neither party mentioning it again. See State v. Almaguer, 232 Ariz. 190, ¶¶ 27-29 (App. 2013) (no abuse of discretion in denying mistrial after witness spontaneously stated she heard defendant had killed before, in light of isolated statement, no further mention, and abundant evidence of guilt).
Orantez also claims the state "is required to have known its witness and tendencies to either answer a question directly or not, and to control the witness." But he cites no authority, nor are we aware of any, requiring a party to predict whether a witness will offer unsolicited testimony in contravention of the state's and the court's warning about the limited scope of his testimony.
Admission of Impeachment Evidence
¶15 Orantez next claims the trial court improperly "allow[ed] the state to present extrinsic evidence relating to a prior inconsistent statement as alleged impeachment." He argues "the necessary predicate to the admissibility of such extrinsic evidence for impeachment purposes was not supported" because the state "failed to show . . . [M.M.'s] testimony was inconsistent with statements that she made to the police." Although Orantez characterizes the evidence as impeachment by prior inconsistent statement under Rule 801(d)(1)(A), Ariz. R. Evid., we agree with the state that it was actually impeachment of a witness with a specific instance of conduct probative of the witness's character for untruthfulness pursuant to Rule 608(b), Ariz. R. Evid. We review the trial court's allowance of impeachment with specific instances of conduct for an abuse of discretion. State v. Murray, 184 Ariz. 9, 30 (1995).
¶16 On cross-examination of M.M., the state asked, "Have you ever lied to get a friend out of trouble?" The court overruled Orantez's objection and M.M. denied that she would lie to cover up a crime. The state then inquired into M.M. falsely telling a police officer a gun belonged to her when it in fact belonged to her boyfriend, a prohibited possessor. The state did not, however, mention the boyfriend or the crime with which he was charged.
¶17 Although Rule 608(b) does not permit the introduction of extrinsic evidence to prove a specific instance of a witness's conduct showing character, the rule expressly allows specific instances to be inquired into on cross-examination. See Murray, 184 Ariz. at 30 & n.2. Thus, the court properly allowed the state to ask about an instance where M.M. lied to a police officer, which was probative of her character for untruthfulness.
Orantez argues in his reply brief that the impeachment was with extrinsic evidence. Extrinsic evidence, however, is that "adduced by means other than cross-examination of the witness." Extrinsic Evidence, Black's Law Dictionary (10th ed. 2014). Indeed, although the state further attempted to have the detective testify in rebuttal to prove the occurrence of the specific instance M.M. denied, the trial court properly disallowed this request as extrinsic evidence.
¶18 Orantez further argues he was prejudiced by this testimony because the "evidence of a prior bad act by [M.M.'s] boyfriend" "clearly impacted . . . the jury's perception" of Orantez. As the state points out, however, M.M.'s boyfriend was not even mentioned, and it is unclear how evidence about someone entirely unrelated to the case could prejudice Orantez. Moreover, to the extent Orantez suggests it was improper for the state to weaken the credibility of his witness, that is precisely the purpose of impeachment. See Formal Impeachment, Black's Law Dictionary (10th ed. 2014) ("[t]he discrediting of a witness's testimony by confronting the witness with his or her specific untruthful acts, prior convictions, prior inconsistent statements, or the like").
Admission of Photographs
¶19 Finally, Orantez challenges the trial court's admission of three photographs depicting him wearing a "beanie," arguing lack of foundation and, for the first time on appeal, that the photographs were improper impeachment. We will not disturb the court's decision to admit photographs and its determination of adequate foundation absent an abuse of discretion. Morris, 215 Ariz. 324, ¶ 69; McCray, 218 Ariz. 252, ¶ 8. And a defendant's objection to evidence on one ground does not preserve objections on other grounds for our review. See State v. Hamilton, 177 Ariz. 403, 408-09 (App. 1993). We thus review Orantez's impeachment argument only for fundamental, prejudicial error. Id. at 409.
¶20 M.A. testified that the driver of the home-invasion vehicle was wearing a "beanie" and Malave too testified that Orantez, who was in the driver's seat at the outset of the crime, was wearing one. On cross-examination, M.M. denied ever having seen Orantez wear "beanies" or "stocking-type caps on his head." At that point, the state showed her three photographs that she acknowledged depicted Orantez "with a stocking cap on his head," although she again stated she had never seen him dressed that way. The trial court admitted the photographs into evidence over Orantez's objection that they lacked foundation and had not been previously disclosed.
Although Orantez mentions the disclosure issue on appeal, he has not presented "significant arguments, supported by authority, setting forth [his] position on the issues raised." State v. Moody, 208 Ariz. 424, n.9 (2004), quoting State v. Carver, 160 Ariz. 167, 175 (1989). Therefore, we do not consider it. See id. ("Failure to argue a claim usually constitutes abandonment and waiver of that claim."), quoting Carver, 160 Ariz. at 175. --------
¶21 As discussed above, Rule 901(a) requires the proponent of evidence to "produce evidence sufficient to support a finding that the item is what the proponent claims it is." Orantez argues the photographs lacked proper foundation because the state did not "elicit information about when the photographs were taken, who took the photographs, [or] where they were taken." But no such evidence was required. "To be admissible, a photograph must be a reasonably faithful representation of the object depicted and aid the jury in understanding the testimony or evaluating the issues." Lohmeier v. Hammer, 214 Ariz. 57, ¶ 8 (App. 2006). "[T]he individual who took the photographs need not be the person who verifies them at trial, and the verifying witness is not required to have been present when the photographs were taken," as long as the verifying witness "attest[s] that the photographs accurately portray the scene or object depicted." Id. We conclude M.M.'s testimony that the photographs depicted Orantez provided sufficient foundation for their admission.
¶22 Orantez also argues that admitting the photographs was improper because they were "clearly not being used for impeachment." However, he does not suggest what the photographs were being used for, if not impeachment, and they did tend to impeach M.M.'s testimony that she had never seen Orantez wear "beanies" or "stocking-type caps" by depicting him wearing just such a cap. To the extent Orantez suggests the photographs were not "relevant to the issues of the case," they were relevant because they showed him wearing the item of clothing M.A. and Malave identified as having been worn by him during the home invasion. We see no error.
Disposition
¶23 For all the foregoing reasons, Orantez's convictions and sentences are affirmed.