Opinion
No. 2 CA-CR 2014-0224
04-29-2015
THE STATE OF ARIZONA, Appellee, v. ROMAN OMAR RIOS, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Jonathan Bass, 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NOT FOR PUBLICATION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. 31.24.
Appeal from the superior Court in Pima County
No. CR20124456001
The Honorable Howard Fell, Judge Pro Tempore
The Honorable Casey McGinley, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Jonathan Bass, Assistant Attorney General, Tucson
Counsel for Appellee
Barton & Storts, P.C., Tucson
By Brick P. Storts, III
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Howard and Judge Vásquez concurred. KELLY, Presiding Judge:
¶1 Roman Rios appeals his convictions and sentences for one count each of assault and aggravated assault causing temporary but substantial disfigurement. He argues the trial court erred by denying his motions to dismiss the charges and to suppress evidence and by making various evidentiary rulings. For the following reasons, we affirm Rios's convictions and sentences.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding Rios's convictions and sentences. See State v. Welch, 236 Ariz. 308, ¶ 2, 340 P.3d 387, 389 (App. 2014). Rios married E.A. in February 2011. After three or four months, Rios stopped working and became aggressive and "physical" with E.A. He took her cellular telephone and gradually restricted her communication with her family. Rios told E.A. "stories about his friends" and "connections" to control her and to threaten her and her family's lives.
¶3 In November 2012, Rios became angry and punched E.A. in the stomach after he saw an e-mail she had received from her ex-husband. After kicking her multiple times, Rios threatened E.A. with pliers and a staple gun. Rios then choked her with his hands until she could not breathe. When E.A. "tr[ied] to explain to him what the e-mail was about," Rios pushed her to the ground, injuring her shoulder. Rios also hit her in the head multiple times with his open hand and, when she fell to the ground, Rios grabbed her head and banged it against the floor. Rios continued to insult, threaten, and punch E.A. throughout the evening. When E.A. went to work the next morning, one of her co-workers saw her injuries and took her to a hospital. E.A. eventually reported the assault to the police.
¶4 Rios was charged with one count each of aggravated assault committed as an act of domestic violence, aggravated assault committed as an act of domestic violence causing temporary but substantial disfigurement, and aggravated domestic violence. His first trial ended in a mistrial. After a second trial, Rios was found not guilty of aggravated assault but was convicted of the lesser-included offense of simple assault and of aggravated assault causing temporary but substantial disfigurement. The trial court sentenced him to a ten year term of imprisonment. Rios timely appealed.
The trial court dismissed the charge of aggravated domestic violence without prejudice before trial.
Motion to Dismiss the Charges
¶5 Rios first argues the trial court abused its discretion by denying his motion to dismiss the charges based on double jeopardy grounds, claiming the prosecutor's failure to disclose documents caused the mistrial and barred his retrial. "In evaluating a double jeopardy claim, we review the trial court's decision to declare a mistrial for an abuse of discretion." State v. Aguilar, 217 Ariz. 235, ¶ 7, 172 P.3d 423, 426 (App. 2007). We will not reverse its ruling unless its findings of fact are clearly erroneous. State v. Lamar, 205 Ariz. 431, ¶ 45, 72 P.3d 831, 840 (2003), citing State v. Cuffle, 171 Ariz. 49, 51, 828 P.2d 773, 775 (1992). But "[w]hether double jeopardy bars retrial is a question of law, which we review de novo." State v. Moody, 208 Ariz. 424, ¶ 18, 94 P.3d 1119, 1132 (2004).
¶6 Before the state called E.A.'s doctor as a witness in Rios's first trial, Rios's counsel stated he had not seen the x-rays of E.A.'s shoulder that the state planned to use during its examination of the doctor. Therefore, although the trial court allowed the parties to question the doctor, it prohibited the state from directly referring to the x-rays. After the doctor testified, Rios asserted his defense strategy had been prejudiced because the jury could discern from the testimony that an x-ray had been taken of E.A.'s shoulder. Rios then moved for a mistrial.
The prosecutor stated she believed she had disclosed the x-rays to Rios's prior counsel but noted the disclosure sheet did not list the disk with the x-rays. She stated that the state therefore would "not submit the X-rays to be introduced."
Rios's counsel explained that the x-rays he had seen were images from a different person. Because he did not believe any x-rays of E.A. existed, he had prepared to challenge the doctor's conclusions regarding E.A.'s shoulder injury—a strategy he could no longer use once the jury had been made aware of the x-rays.
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¶7 The trial court described the doctor's reference to the x-rays as "a mistake that can't be corrected" and stated it could not determine whether the x-rays had been disclosed to prior or current counsel. Although the court found the apparent failure to disclose the x-rays was the result of "miscommunication," and not "any intentional . . . act on behalf of the State," it agreed that Rios's defense strategy and ability to prepare for trial had been compromised and therefore granted Rios's motion for mistrial.
¶8 Before his second trial, Rios moved to dismiss the charges, arguing intentional misconduct by the prosecutor resulted in a mistrial and retrial therefore was barred on double jeopardy grounds. The trial court concluded there had been no intentional misconduct by the state and denied Rios's motion.
¶9 On appeal, Rios argues the trial court erred by denying his motion to dismiss. He claims that regardless of the state's intent, the failure to disclose was not his fault and the court was required to bar further prosecution based on double jeopardy principles.
¶10 The double jeopardy clauses of the Arizona and federal constitutions protect a criminal defendant from multiple prosecutions for the same offense. See Ariz. Const. art. II, § 10; U.S. Const. amend. V; see also Aguilar, 217 Ariz. 235, ¶ 8, 172 P.3d at 426. "But a mistrial based upon prosecutorial misconduct generally does not bar a later retrial." State v. Trani, 200 Ariz. 383, ¶ 6, 26 P.3d 1154, 1155 (App. 2001); see also State v. Givens, 161 Ariz. 278, 280, 778 P.2d 643, 645 (App. 1989) (when defendant chooses to terminate proceedings against him on basis unrelated to factual guilt or innocence, double jeopardy generally will not bar retrial). An exception to this principle exists when:
1. Mistrial is granted because of improper conduct or actions by the prosecutor; andPool v. Superior Court, 139 Ariz. 98, 108-09, 677 P.2d 261, 271-72 (1984) (footnote omitted). Rios has failed to establish that the prosecutor acted intentionally or for an improper purpose such that retrial is barred.
2. such conduct 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 resulting danger of mistrial or reversal; and
3. the conduct causes prejudice to the defendant which cannot be cured by means short of a mistrial.
¶11 The mistrial was not granted based on any "intentional conduct" by the prosecutor. See id. Rather, the trial court granted the mistrial because the nondisclosure of the x-rays had created a "problem" for the defense strategy in examining the doctor. It explained that its mistrial order was a direct result of an "honest" mistake, and not caused by "any intentional act of misconduct." We defer to a trial court's first hand observations and assessments. Cf. State v. Martinez, 230 Ariz. 208, ¶ 30, 282 P.3d 409, 416 (2012). Additionally, we can find nothing in the record—nor has Rios cited anything—suggesting the court's findings were clearly erroneous. See Lamar, 205 Ariz. 431, ¶ 45, 72 P.3d at 840. The record supports the court's ruling, and we conclude it did not err by denying Rios's motion to dismiss the charges.
Motion to Suppress
¶12 Rios next argues the trial court erred by denying his motion to suppress excerpts of recorded telephone calls Rios had made while in jail. We review a trial court's evidentiary rulings for an abuse of discretion. State v. Aguilar, 209 Ariz. 40, ¶ 29, 97 P.3d 865, 874 (2004). We will not disturb such rulings absent a clear abuse of the court's considerable discretion. State v. Davis, 205 Ariz. 174, ¶ 23, 68 P.3d 127, 131 (App. 2002). When reviewing the denial of a motion to suppress, we consider only the evidence presented at the suppression hearing and view it in the light most favorable to upholding the court's ruling. State v. Caraveo, 222 Ariz. 228, n.1, 213 P.3d 377, 378 n.1 (App. 2009). Although we review a denial of a motion to suppress for an abuse of discretion, we review constitutional and purely legal issues de novo. State v. Gay, 214 Ariz. 214, ¶ 4, 150 P.3d 787, 790 (App. 2007).
¶13 Before trial, the state moved to introduce excerpts of four recorded telephone calls Rios had made to his brother from jail. The state argued the excerpts were admissible as non-hearsay admissions of a party opponent. See Ariz. R. Evid. 801(d)(2). Rios moved to suppress the recordings, arguing that they were inadmissible pursuant to Rules 403 and 404, Ariz. R. Evid., and that recording phone calls made from jail was unconstitutional.
¶14 The trial court rejected Rios's constitutional arguments, concluding "the jail has an inherent interest in assuring a safe facility" and "screening and recording phone calls is an absolutely understandable exercise of . . . authority and an exercise of discretion to [e]nsure a safe facility." It further determined "the jail absolutely informs the defendant of the fact that he will be recorded," and that "the defendant enjoys no reasonable expectation of privacy in his telephone calls and is put on notice that should he make a telephone call, it will be recorded and reviewed." The court granted the state's motion in part and two of the four recorded calls were admitted.
¶15 Rios argues that the statements made in the jail calls should have been suppressed because they disparaged his character and were not relevant. But Rios has not identified which statements should have been suppressed. See Ariz. R. Crim. P. 31.13(c)(1)(vi) (appellate brief must include argument with "the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on"). Nor has he cited any recordings, transcripts, or other exhibits in the record, or provided any argument or legal authority for his contentions. Id. We therefore are unable to meaningfully review his claims and do not address them further. See State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) (claims waived for insufficient argument on appeal); State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989) ("[O]pening briefs must present significant arguments, supported by authority, setting forth an appellant's position on the issues raised," and insufficient argument constitutes abandonment and waiver of that claim.).
¶16 Rios also argues that the practice of recording jailhouse phone calls is akin to wiretapping without probable cause, "an abrogation of his constitutional rights," and violates "the basic due process rights [that] are retained by inmates even though they are incarcerated." He maintains there was no justification for recording his calls because he did not pose a security risk to the jail. We construe this argument as a challenge pursuant to the Fourth Amendment.
¶17 The Fourth Amendment and its Arizona counterpart protect against unreasonable searches and seizures and generally require "suppression at trial of any evidence directly or indirectly gained as a result of the violation." State v. Allen, 216 Ariz. 320, ¶ 9, 166 P.3d 111, 114 (App. 2007); see also Katz v. United States, 389 U.S. 347, 353 (1967) (Fourth Amendment protects against unreasonable searches and seizures, even absent physical intrusion). A "search" under the Fourth Amendment occurs "when an expectation of privacy that society is prepared to consider reasonable is infringed." United States v. Jacobsen, 466 U.S. 109, 113 (1984); State v. Olm, 223 Ariz. 429, ¶ 5, 224 P.3d 245, 247 (App. 2010). When "the suspect has a reasonable expectation of privacy in the place or the item searched," a warrant generally is required. State v. Blakley, 226 Ariz. 25, ¶ 6, 243 P.3d 628, 630 (App. 2010), citing Jacobsen, 466 U.S. at 113.
¶18 Rios did not have a reasonable expectation of privacy in phone calls he made from jail. Recording an inmate's phone calls is permitted in correctional facilities "for security reasons," A.R.S. § 13-3019(C)(2), which "render [such recordings] reasonable for Fourth Amendment purposes," United States v. Van Poyck, 77 F.3d 285, 291 (9th Cir. 1996); see also United States v. Rushwam, 275 Fed. Appx. 684, 685 (9th Cir. 2008) (rejecting defendant's Fourth, Fifth, and Sixth Amendment challenges to admission of recorded telephone calls made from jail); State v. Martinez, 221 Ariz. 383, ¶ 26, 212 P.3d 75, 82 (App. 2009).
¶19 Additionally, when an inmate makes a telephone call from jail, a recorded message on the jail phone system notifies the inmate, as well as the person answering the call, that it is monitored and recorded. Rios stipulated he was aware that telephone calls made from jail are recorded. Thus even if Rios had a reasonable expectation of privacy, he consented to the recordings by making the calls, which "vitiates a Fourth Amendment Claim." Van Poyck, 77 F.3d at 291; see also State v. Paredes, 167 Ariz. 609, 612, 810 P.2d 607, 610 (App. 1991). The trial court did not err by admitting the recordings.
Evidentiary Rulings
¶20 Rios argues the trial court erred by allowing evidence of his alleged prior bad acts at trial and by refusing to permit him to read the contents of a letter he had written to E.A.'s father. He claims the other acts evidence created "an inference of gang affiliation" and "general bad character," which the state used to profile him as an abuser. He contends the court's ruling regarding the letter prevented him from showing his "true remorse." We review a trial court's evidentiary rulings for an abuse of discretion. Aguilar, 209 Ariz. 40, ¶ 29, 97 P.3d at 874.
Other Acts Evidence
¶21 Rios argues the state presented evidence of gang membership, which likely "damag[ed] . . . [him] in the eyes of the jury," had "no relevance in this case," and was "as prejudicial as any other information which would be precluded pursuant to Rule 404(b), [Ariz. R. Evid.]" He claims the state profiled him "as an abuser by bringing in the prior act evidence." He also asserts the jury was prejudiced against him because of the "evidence relating to [his] characteristics . . . and his affiliations to others who are familiar with violence."
¶22 Rule 404(b) states that "evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith," subject to limited exceptions. But Rios has not pointed to any evidence that was admitted in violation of this rule, and he has not provided legal authority to support his contentions. See Ariz. R. Crim. P. 31.13(c)(1). Although Rios states that "examples of this type of evidence are listed above from the testimony and from the State's closing argument," this is insufficient to preserve the argument for appellate review. See id.; Bolton, 182 Ariz. at 298, 896 P.2d at 838; Carver, 160 Ariz. at 175, 771 P.2d at 1390. We therefore do not address these contentions.
Letter to E.A.'s Father
¶23 Rios argues the trial court erred in its ruling regarding a letter Rios had written to E.A.'s father. Before trial, the state moved to admit a redacted version of the letter. Rios then moved for admission of the un-redacted letter, contending that the redacted letter "present[ed] a one-sided portrayal of [his] intent for writing the letter." The trial court, noting the letter appeared to have been redacted to remove "prejudicial" and "inflammatory" information that may have been detrimental to Rios, nonetheless granted Rios's motion and admitted the letter in its entirety pursuant to Rule 106, Ariz. R. Evid.
¶24 When Rios testified, his counsel handed him a copy of the redacted letter which Rios wanted to read to the jury. The state objected and the court sustained the state's objection, stating "the letter has already been admitted [and] [t]he jury can read it for themselves." Rios was permitted to describe the remorseful state of mind he had when writing the letter, which the court found "relevant."
¶25 On appeal, Rios maintains the trial court erred by "failing to allow [him] to present the full letter to the jury through [his] testimony." As his sole authority for this argument, he cites Rule 106, Ariz. R. Evid., which states, "If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time." But as demonstrated above, the trial court admitted the full contents of the letter, citing Rule 106 as the basis for its ruling. Rios has failed to provide any authority for the proposition that the court was required to allow him to read the letter aloud or that such a request implicates Rule 106. We therefore do not consider these arguments further. See Ariz. R. Crim. P. 31.13(c)(1); Bolton, 182 Ariz. at 298, 896 P.2d at 838; Carver, 160 Ariz. at 175, 771 P.2d at 1390.
Disposition
¶26 For the foregoing reasons, we affirm Rios's convictions and sentences.