Opinion
2 CA-CR 2023-0124
02-29-2024
The State of Arizona, Appellee, v. Freddy Tellez, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee Kate Milewski, Pinal County Public Defender By Kevin D. Heade, Defender Attorney, Florence Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pinal County No. S1100CR202100475 The Honorable Steven J. Fuller, Judge
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee
Kate Milewski, Pinal County Public Defender By Kevin D. Heade, Defender Attorney, Florence Counsel for Appellant
Judge Sklar authored the decision of the Court, in which Vice Chief Judge Staring and Judge O'Neil concurred.
MEMORANDUM DECISION
SKLAR, Judge
¶1 Freddy Tellez appeals from his conviction and sentence for promoting prison contraband. He argues that: (1) the prosecutor committed prejudicial errors in closing argument, (2) the trial court violated his rights by ordering him handcuffed during trial, and (3) the court improperly provided a flight instruction. While we agree that the prosecutor's comments were inappropriate and constituted fundamental error, they did not prejudice Tellez, either individually or cumulatively. We therefore find no reversible error in the closing argument. We similarly conclude that Tellez's remaining arguments lack merit, so we affirm the conviction and sentence.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 We view the facts in the light most favorable to sustaining the jury's verdicts and resolve all reasonable inferences against Tellez. See State v. Fierro, 254 Ariz. 35, ¶ 2 (2022). In December 2020, Tellez was incarcerated in Eloy for a murder he had committed in Idaho. During a "facility-wide shakedown," prison employees discovered a phone in the cell that Tellez shared with a cellmate. The phone had been concealed inside a tablet issued to Idaho inmates.
¶3 Because phones are contraband, Tellez was charged with promoting prison contraband. See A.R.S. § 13-2501(1) (defining "contraband" as including "wireless communication device[s]" and "multimedia storage device[s]"). Following a trial in March 2023, he was convicted and sentenced to a prison term of 2.25 years. The court subsequently denied a motion for new trial. This appeal followed.
CLOSING ARGUMENT
¶4 Tellez first argues that the state committed two reversible prosecutorial errors in its closing argument: (1) improperly commenting on Tellez's exercise of his constitutional privilege against self-incrimination; and (2) shifting the burden of proof. He also argues that the cumulative effect of these errors denied him a fair trial.
Privilege against self-incrimination
¶5 Tellez's first argument arises from his implication at trial that the phone had not belonged to him, but instead had been used by other inmates to look up his crimes. On cross-examination from Tellez, a facility investigator testified that this would be unnecessary because inmates generally "keep their court papers." However, the investigator agreed with Tellez that a "child molester" might "destroy their papers" for safety reasons. The inspector also agreed that "if someone got a hold of this cell phone in this case, they could try to look up Freddy Tellez to see . . . what crime he may be convicted of." But as noted, Tellez was in prison for murder, not child molestation or any sexual offense.
¶6 Referring to that testimony in his closing argument, Tellez argued that "if someone's in [prison] for molesting a child," that person would "want to get rid of their papers." Other inmates might be "nosy" and "want to find these things out." In rebuttal, the state argued:
[DEFENSE COUNSEL] talked about, well, don't some people hide their court documents for outlandish things like child molestation?
Well, defendant doesn't have to take the stand. But you notice that he never told you what he's in there for or that the defendant doesn't -
[DEFENSE COUNSEL]: Objection. Relevance.
THE COURT: Overruled.
[PROSECUTOR]: The defendant never testified that he himself hides his court papers. We don't get into that. We're not getting into what the underlying thing is.
There's no testimony that he hides his court papers, but he's trying to create this farce. Well, that's why people would do it. If that's why, take the stand, tell your story, temple of truth. Put it out there. (Emphasis added).
[DEFENSE COUNSEL]: Objection. Burden shifting.
THE COURT: Overruled.
[PROSECUTOR]: But he didn't. He talks all about - the whole thing is the "we don't know why," and it's a red herring and it's speculation, and nothing has actually been contested.
¶7 Although Tellez's counsel objected, he did not assert that this argument constituted an improper comment on Tellez's failure to testify. We therefore review for fundamental error. State v. Henderson, 210 Ariz. 561, ¶ 19 (2005) ("Fundamental error review . . . applies when a defendant fails to object to alleged trial error."); see State v. Lopez, 217 Ariz. 433, ¶ 4 (App. 2008) ("An objection on one ground does not preserve the issue on another ground.").
¶8 Fundamental-error review involves three questions: (1) whether trial error exists; (2) whether the error was fundamental; and (3) whether the defendant was prejudiced. State v. Escalante, 245 Ariz. 135, ¶ 21 (2018). As to the first two questions, the state either concedes or does not seriously contest that the prosecutor's comments constituted both trial error and fundamental error. We agree. The prosecutor improperly commented on Tellez's exercise of his constitutional right not to testify-a straightforward instance of fundamental error. See State v. Ramos, 235 Ariz. 230, ¶¶ 14-15 (App. 2014) (concluding that improper comment on defendant's decision not to testify constituted fundamental error "because [defendant] was deprived of a right essential to his defense").
¶9 As to the third question, Tellez argues that under State v. Smith, 101 Ariz. 407, 409-10 (1966), we must presume prejudice. Smith does contain language supporting this view. It states, "When one has been denied a constitutional right as essential as the right against self-incrimination, prejudicial effect will be presumed and the error will be deemed fundamental." Smith, 101 Ariz. at 410. However, since Smith, our supreme court has stated, "An improper comment on defendant's silence may be harmless error." State v. Guerra, 161 Ariz. 289, 297 (1989) (concluding that improper comment was harmless where defendant "testified at trial that he stabbed and killed" victim).
¶10 We thus do not read Smith as imposing a blanket rule that every comment on a defendant's failure to testify is prejudicial. Smith predates our supreme court's adoption of the current standard for fundamental error, set forth in Henderson and clarified in Escalante. The Smith court's description of the error as fundamental, therefore, was not made under the test now required. Rather, under Escalante, prejudice is presumed only when the error "so profoundly distort[ed] the trial that injustice is obvious without the need to further consider prejudice." 245 Ariz. 135, ¶¶ 20-21. This case, which involved a single statement about Tellez's failure to testify, does not meet that standard. Ramos, 235 Ariz. 230, ¶¶ 16-17 (acknowledging Smith, but concluding that "[s]ubsequent development of the law" does not render improper comment on failure to testify as necessarily requiring reversal). We therefore proceed to the prejudice analysis.
¶11 Determining prejudice requires us to ask whether a reasonable jury could have "plausibly and intelligently returned a different verdict" without the improper argument. Escalante, 245 Ariz. 135, ¶ 31. This inquiry is "difficult to satisfy." State v. Murray, 250 Ariz. 543, ¶ 16 (2021). It is an objective standard that precludes "imaginative guesswork." Escalante, 245 Ariz. 135, ¶ 31. We must "examine the entire record, including the parties' theories and arguments as well as the trial evidence." Id.
¶12 We conclude that Tellez has failed to satisfy the prejudice requirement. First, the prosecutor never argued that Tellez's decision not to testify suggested that he was guilty of the charged crimes. The argument instead concerned Tellez's decision not to testify about the reason he was in prison. That fact has no bearing on the elements of promoting prison contraband. See A.R.S. § 13-2505(A)(3) (listing elements of crime). At most, the prosecutor's argument responds to Tellez's own speculation that other inmates might have had a reason to look up Tellez's offenses. Its prejudicial effect was therefore more limited than an implication of guilt from his failure to testify. And to the extent the prosecutor's comment had any prejudicial effect related to the implication that Tellez was in prison for child molestation, that prejudice was created by Tellez's own questioning and argument. It was Tellez himself who falsely-and puzzlingly- suggested that child molestation was the reason for his imprisonment.
¶13 The evidence of Tellez's guilt was also overwhelming. See State v. Anderson, 110 Ariz. 238, 241 (1973) (affirming conviction despite fundamental error where evidence against defendant was overwhelming); see also Escalante, 245 Ariz. 135, ¶ 26 (noting that evidence was not overwhelming in determining if error was fundamental). The phone was found in his cell, and it contained apps set up for "Freddy," messages to Tellez, and approximately 30,000 photos, including some of Tellez. It had also been logged in to Tellez's account on a program that Idaho inmates use to receive commissary items. No evidence tied the phone to Tellez's cellmate.
¶14 Tellez points to the fact that the phone contained evidence suggesting that other prisoners had used it too. But this does not preclude Tellez from having possessed the phone. It simply implicates others as well. Finally, although Tellez points in his reply brief to other limitations in the evidence, the evidence that was presented was nevertheless overwhelming. Thus, the comment on Tellez's silence did not constitute reversible error.
Burden shifting
¶15 We next address Tellez's burden-shifting argument. That argument concerns a separate portion of the rebuttal closing that addressed the burden-of-proof jury instruction. The prosecutor argued:
The last thing is on the burden of proof. I'm going to ask you to view your instructions. And I believe it's page two. See, what you also notice is another thing defense counsel did is when he talked to you about the burden is he omitted the part that holds him up to his burden. He didn't tell the whole story on that either.
I'm going to ask you to view the whole thing, but we're going to focus on that second paragraph. Read it again when you're back there. That second paragraph is proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. (Emphasis added).The prosecutor continued by reading-with minor, non-substantive changes-from the jury instruction. He said:
There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every doubt. If, based on your
consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty.
If, on the other hand, there's a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty.No longer reading from the instruction, he continued, "That's the standard. Firmly convinced, real possibility. Not red herrings, not speculation, not disingenuous, well, the State didn't show them. They must be hiding something when they themselves have access to it and have every court power to present it."
¶16 Tellez acknowledges that he did not object to this portion of the argument. We therefore review for fundamental error. Henderson, 210 Ariz. 561, ¶ 19. As with the other comment, the state does not seriously challenge that fundamental error occurred. We agree. A misstatement of the reasonable-doubt standard constitutes fundamental error. See Murray, 250 Ariz. 543, ¶ 40. We see no plausible explanation or excuse for the prosecutor's comment, which made no sense in the context of the jury instruction he was describing.
¶17 However, this error did not prejudice Tellez due to the overwhelming evidence of his guilt. Any prejudice was also limited given the comment's context. Although the prosecutor improperly suggested that Tellez carried a burden, he did so in the context of reading an accurate jury instruction that imposed no such burden. And aside from the improper comment, he accurately stated the burden of proof. See id. ¶ 19 (citing with approval case law that equates "firmly convinced" with lack of reasonable doubt). The jury was also properly instructed. This minimizes the possibility that the jury misapplied the reasonable-doubt standard or improperly imposed a burden on Tellez.
Cumulative error
¶18 Because we have assumed without deciding that the prosecutor committed two fundamental errors, we must also address whether those errors cumulatively deprived Tellez of a fair trial. See State v. Vargas, 249 Ariz. 186, ¶¶ 13-14 (2020). As we have explained, the context of the prosecutor's improper comments diminished their prejudicial effect. The evidence of Tellez's guilt was also overwhelming. We therefore conclude that his trial was fair.
HANDCUFFING OF TELLEZ DURING TRIAL
¶19 Tellez next argues that the trial court violated his due-process rights by requiring that he be handcuffed throughout the trial. Generally, courtroom-security matters are left to the court's discretion, and we uphold such decisions when "supported by the record." State v. Dixon, 226 Ariz. 545, ¶ 22 (2011). However, courts may not routinely shackle or use physical restraints "visible to the jury" without making a "case specific finding of a security concern." Id. (citing Deck v. Missouri, 544 U.S. 622, 623 (2005)). Courts also may not simply defer to a prosecutor's request, law-enforcement policy, or a preference from security personnel. Id. ¶ 25.
¶20 The trial court's decision came during a pretrial conference, in response to a request from Tellez's counsel to remove the handcuffs. Tellez was also wearing leg braces, and his counsel said he "would prefer [Tellez] not have the handcuffs on during the trial so the jury doesn't see it." In denying the request, the court said that Tellez "can keep his hands below the table" and would be "sitting furthest away from the jury." The court also reasoned that the jury would already be aware that Tellez was in prison. And because he was in prison for murder, the court was "not inclined to take the handcuffs off."
¶21 During trial, without the jury present, the trial court said "that the defendant has stood a couple of times . . . and I can't tell from my vantage point that he's even handcuffed." The court added that Tellez was "sitting furth[]est away from the jury, approximately, I don't know, maybe 20 feet, 25 feet from the jury box." Thus, the court found that requiring Tellez to be handcuffed "cannot be prejudicial" to him. Neither party objected to these observations or made a further record.
¶22 We conclude that the trial court did not err in requiring Tellez to be handcuffed. As Tellez acknowledges, nothing in the record establishes that the handcuffs were visible. The court's comments during trial suggest that they were not. Likewise, although Tellez argues that the handcuffs impaired his ability to participate in the trial, nothing in the record supports that position.
¶23 Tellez also argues that because "the trial court never asked the jury if they could see the otherwise plainly visible and unhidden handcuffs, it is impossible to conclude that the jury was not prejudiced." We are puzzled by this argument. Asking the jury if it could see the handcuffs would have drawn attention to them. And despite having the opportunity to argue that the handcuffs were visible, Tellez's trial counsel never did so. Cf. State v. Gomez, 211 Ariz. 494, ¶ 50 (2011) (rejecting argument that shackles were not visible where trial judge instructed jury not to consider "the chains").
¶24 Even if the handcuffs were visible, the trial court made the required case-specific finding. Contrary to Tellez's argument, it did not premise its decision solely on the fact that Tellez was a convicted murderer, a decision that could arguably violate the United States Supreme Court's decision in Deck. See Deck, 544 U.S. at 624 (holding that "shackling a convicted offender during the penalty phase of a capital case" is unconstitutional absent a case-specific interest such as courtroom security). Tellez's murder conviction was an important factor in the court's analysis. But the court also considered that given the nature of Tellez's charged offense, the jurors would know that he was serving a prison sentence.
¶25 We also reject Tellez's argument that the trial court improperly deferred to jail policy that the handcuffs remain on. Although defense counsel informed the court of that policy, he also said that officers could remove the handcuffs with a court order. The court then made its own determination. Further, for the reasons we have already explained, overwhelming evidence demonstrated Tellez's guilt, so we can say beyond a reasonable doubt that the handcuffs did not affect the verdict. See Dixon, 226 Ariz. 545, ¶ 32 (applying harmless-error analysis in analysis of improper restraints).
FLIGHT INSTRUCTION
¶26 Tellez argues that the trial court improperly provided a flight instruction. We review the court's decision to give such an instruction for an abuse of discretion. State v. Parker, 231 Ariz. 391, ¶ 44 (2013).
¶27 A trial court may give a flight instruction only if there is evidence that the defendant departed the scene or otherwise behaved in a manner from which jurors could reasonably infer consciousness of guilt. See id. The evidence must support a reasonable inference that the defendant's behavior "obviously invites suspicion or announces guilt." State v. Speers, 209 Ariz. 125, ¶ 28 (App. 2004) (quoting State v. Weible, 142 Ariz. 113, 116 (1984)). This can occur if the evidence "supports a reasonable inference that the flight or attempted flight was open, such as the result of an immediate pursuit." State v. Solis, 236 Ariz. 285, ¶ 7 (App. 2014) (quoting State v. Smith, 113 Ariz. 298, 300 (1976)). It can also occur if the evidence "support[s] the inference that the accused utilized the element of concealment or attempted concealment." Id. (quoting Smith, 113 Ariz. at 300).
¶28 Tellez focuses on the second option. He argues that the flight instruction is not appropriate when "the only contested issue [is] the identity of the person who possessed [a] contraband [item]." The state does not meaningfully address this argument. It instead "assum[es] for the sake of argument that the instruction was unnecessary because the guilty mind of the cellphone possessor was largely an uncontested issue." We therefore do not address whether the instruction was improper.
¶29 We instead agree with the state that any instructional error was harmless, again due largely to the overwhelming evidence. Solis, 236 Ariz. 285, ¶ 12 (applying harmless-error analysis to improper decision to give a flight instruction). In addition, the instruction had minimal effect. Contrary to Tellez's argument, the state did not "bootstrap[] the contested issue at trial-identity of the possessor-into a consciousness of guilt inference." In fact, the state did not mention the flight instruction in its closing argument. See id. ¶ 14 ("Neither Solis nor the State relied on the flight instruction to attempt to buttress or undermine the facts."). The jury was also instructed that as it "determine[d] the facts, [it] may find that some instructions no longer apply." It was therefore free to disregard the flight instruction. See id.
¶30 Finally, Tellez argues that an improper flight instruction violates the constitutional prohibition against courts commenting on the evidence. See Ariz. Const. art. VI, § 27. He did not raise this argument in the trial court, so we review this argument for fundamental error only. However, in addition to prohibiting courts from commenting on the evidence, the relevant constitutional provision states, "No cause shall be reversed for technical error in pleadings or proceedings when upon the whole case it shall appear that substantial justice has been done." Id. Thus, a case shall "not be reversed due to judicial comments on the evidence unless the comment prejudiced the party who opposed it." State v. Bolivar, 250 Ariz. 213, ¶ 15 (App. 2020). Because no such prejudice occurred, we conclude that any error in the flight instruction was harmless.
DISPOSITION
¶31 We affirm Tellez's conviction and sentence.