FILED BY CLERK
JUN 29 2012
IN THE COURT OF APPEALS COURT OF APPEALS
STATE OF ARIZONA DIVISION TWO
DIVISION TWO
THE STATE OF ARIZONA, ) 2 CA-CR 2011-0277
) DEPARTMENT B
Appellee, )
) OPINION
v. )
)
FRANCISCO ANTONIO LOPEZ, )
)
Appellant. )
)
APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY
Cause No. CR201000990
Honorable James L. Conlogue, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Joseph T. Maziarz,
and Joseph L. Parkhurst Tucson
Attorneys for Appellee
Harriette P. Levitt Tucson
Attorney for Appellant
K E L L Y, Judge.
¶1 Following a jury trial, appellant Francisco Lopez was convicted of
attempted first-degree murder, five counts of aggravated assault, two counts of disorderly
conduct, misconduct involving weapons as a prohibited possessor, and attempting to
influence a witness. The trial court sentenced him to combined concurrent and
consecutive prison terms totaling 52.5 years. On appeal, he argues there was insufficient
evidence to support six of his convictions. He further asserts his constitutional right to a
fair trial was denied due to prosecutorial misconduct. For the reasons that follow, we
affirm.
Background
¶2 “We view the facts in the light most favorable to sustaining the
convictions.” State v. Robles, 213 Ariz. 268, ¶ 2, 141 P.3d 748, 750 (App. 2006). While
on a “meth bender,” Lopez and his girlfriend T. drove to his brother D.’s house to collect
her children; she was upset that the children’s father had allowed them to visit D. T.
entered the house first and warned everyone inside that Lopez, who had a history of
conflict with D., was coming and that he intended to kill D. As T. was gathering her
children, Lopez fired a shot at D.’s girlfriend. Lopez then left with T. and her children.
D. followed them in a truck and cut them off at a stop sign. Lopez fired several shots at
D. before driving away. He evaded the police for approximately three weeks before he
was arrested. Lopez was convicted and sentenced as stated above, and this appeal
followed.
Discussion
Sufficiency of the Evidence
¶3 Lopez first argues there was insufficient evidence to support his convictions
on counts three through seven (attempted first-degree murder and four counts of
aggravated assault) and count fourteen (attempting to influence a witness). In reviewing
a claim of insufficient evidence, we examine the sufficiency of the evidence presented to
2
determine whether substantial evidence supports the jury’s verdicts. State v. Stroud, 209
Ariz. 410, ¶ 6, 103 P.3d 912, 913 (2005). “Substantial evidence is proof that reasonable
persons could accept as sufficient to support a conclusion of a defendant’s guilt beyond a
reasonable doubt,” State v. Spears, 184 Ariz. 277, 290, 908 P.2d 1062, 1075 (1996), and
it “may be either circumstantial or direct,” State v. Henry, 205 Ariz. 229, ¶ 11, 68 P.3d
455, 458 (App. 2003). We will reverse a defendant’s convictions “only if ‘there is a
complete absence of probative facts to support [the jury’s] conclusion.’” State v.
Carlisle, 198 Ariz. 203, ¶ 11, 8 P.3d 391, 394 (App. 2000), quoting State v. Mauro, 159
Ariz. 186, 206, 766 P.2d 59, 79 (1988).
Counts Three Through Seven
¶4 With respect to the convictions for attempted first-degree murder and
aggravated assault of D., Lopez argues the state failed to present sufficient evidence for
the jury to have found beyond a reasonable doubt that he did not act in self-defense. See
A.R.S. § 13-205 (requiring state to prove beyond reasonable doubt defendant’s actions
not justified). He asserts his “use of force was . . . justified in light of [D.]’s history of
violence and his present aggressive behavior” and that “[t]he evidence is clear . . . that
there was mutual combat between [Lopez] and [D.]”
¶5 Lopez did not testify, and his sole witness presented no evidence that Lopez
had acted with justification. In cross-examining the state’s witnesses, however, Lopez
attempted to elicit testimony in support of his self-defense theory. And the trial court
thereafter instructed the jury as to self-defense.
3
¶6 But the state presented substantial evidence that contradicted Lopez’s
justification theory. There was testimony that Lopez went to D.’s house intending to kill
him. D. testified that, after he took shelter under the truck to avoid being shot, Lopez
“dropped to his knees” and tried to shoot D. under the truck. And, a retired law
enforcement officer who witnessed the events testified that Lopez had fired shots that
appeared to be intended to hit D., rather than just warn him.
¶7 Because the state presented substantial evidence from which the jury could
find beyond a reasonable doubt that Lopez’s conduct was not justified, the record does
not reflect “‘a complete absence of probative facts to support [the jury’s] conclusion’”
that he was guilty of attempting to murder D. Carlisle, 198 Ariz. 203, ¶ 11, 8 P.3d at
394, quoting Mauro, 159 Ariz. at 206, 766 P.2d at 79. Likewise, because the aggravated
assault charges resulted from the same conduct—Lopez shooting at D.—there was
substantial evidence to support the jury’s conclusion that his conduct was not justified for
these charges.
Count Fourteen
¶8 Lopez maintains there was insufficient evidence to support his conviction
for attempting to influence a witness because, at the time he contacted T., she had not yet
been identified as a witness.1 A person commits the crime of influencing a witness if,
inter alia, he confers “any benefit upon a witness in any official proceeding or a person he
1
To the extent Lopez attempts to argue the indictment was flawed for lack of
specificity, that issue is waived for lack of argument. See Ariz. R. Crim. P.
31.13(c)(1)(vi); State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) (issue
waived when argument insufficient to permit appellate review).
4
believes may be called as a witness” with the intent to influence the witness’s testimony.
A.R.S. § 13-2802(A). The purpose of the law is to “prevent the corrupt interference with
the administration of justice”; therefore, the legislature criminalized “any attempt to . . .
influence prospective witnesses [such] that the truth will not be presented in anticipated
litigation.” State v. Ferraro, 67 Ariz. 397, 399-400, 198 P.2d 120, 122 (1948).
¶9 Lopez mailed a letter to T. in which he promised “to hang up” his gang life
and “become a loving husband” in exchange for her “stick[ing] to the story” they had
discussed. His clear goal in so doing was to influence her future statements about the
events leading up to the charges brought against them. This is precisely the kind of
conduct the legislature intended to prohibit. See id. T. was an eyewitness to, and indeed
a participant in, the crimes with which she and Lopez were charged. Thus, at a
minimum, Lopez had to know the state would contact T. and seek her account of the
incident. And the clear intent of his letter was to prevent a true account being presented
to authorities and the court. Therefore, because Lopez knew T. was a prospective
witness, substantial evidence supports the jury’s verdict finding Lopez guilty of
attempting to influence a witness.2
2
Our review of the record reveals a discrepancy in the oral pronouncement of
sentence and the sentencing minute entry. The sentencing minute entry indicates Lopez
was convicted of influencing a witness, a class five felony, rather than attempted
influencing a witness, a class six felony. However, the transcript of the sentencing
hearing correctly reflects the verdict of “guilty of attempted influencing a witness,” a
class six felony. When we can ascertain the trial court’s intent from the record, we need
not remand for clarification. See State v. Bowles, 173 Ariz. 214, 216, 841 P.2d 209, 211
(App. 1992). We, therefore, modify the sentencing minute entry to reflect that Lopez was
convicted of attempted influencing a witness, a class six felony. See State v. Hanson, 138
5
Prosecutorial Misconduct
¶10 Lopez next claims the prosecutor committed misconduct by commenting on
his right to remain silent. Lopez did not object to this alleged misconduct at trial, and he
therefore has forfeited review absent fundamental, prejudicial error. See State v.
Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005). Fundamental error is that
“‘going to the foundation of the case, error that takes from the defendant a right essential
to his defense, and error of such magnitude that the defendant could not possibly have
received a fair trial.’” Id. ¶ 19, quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980,
982 (1984). The defendant has the burden of showing both that the error was
fundamental and that it caused him prejudice. Id. ¶¶ 19-20.
¶11 “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 . . . .’”
State v. Aguilar, 217 Ariz. 235, ¶ 11, 172 P.3d 423, 426-27 (App. 2007), quoting Pool v.
Superior Court, 139 Ariz. 98, 108, 677 P.2d 261, 271 (1984). For prosecutorial
misconduct to qualify as fundamental error, the error must be “‘so pronounced and
persistent that it permeates the entire atmosphere of the trial.’” State v. Harrod, 218 Ariz.
268, ¶ 35, 183 P.3d 519, 529 (2008), quoting State v. Hughes, 193 Ariz. 72, ¶ 26, 969
P.2d 1184, 1191 (1998).
Ariz. 296, 304-05, 674 P.2d 850, 858-59 (App. 1983) (holding “oral pronouncement of
sentence controls” over sentencing minute entry).
6
¶12 During direct examination, the prosecutor asked a police officer whether
Lopez, in the approximately three-week period between the crimes and his arrest, had
“ever turn[ed] himself in to cooperate with the police and give his side of the story for the
events.”3 The officer responded, “No, he did not.” Lopez asserts the prosecutor’s
question constituted misconduct because it was an “impermissible comment on his right
to remain silent.”
¶13 The Fifth Amendment to the United States Constitution provides that no
person “shall be compelled in any criminal case to be a witness against himself.” U.S.
Const. amend. V. Although the United States Supreme Court has held that the
government may comment on a defendant’s pre-arrest silence for impeachment purposes,
it has not resolved the issue of whether, when a defendant does not testify, the state’s use
of the defendant’s pre-arrest silence as substantive evidence of guilt violates the Fifth
Amendment. See Jenkins v. Anderson, 447 U.S. 231, 236 n.2 (1980). And, although our
supreme court stated in State v. Ramirez, 178 Ariz. 116, 125, 871 P.2d 237, 246 (1994),
that “[a] prosecutor may . . . comment on a defendant’s pre-Miranda[4] warnings silence,
either before or after arrest, because no governmental action induced [the defendant] to
remain silent,” it recently characterized this language as dictum. See State v. VanWinkle,
229 Ariz. 233, ¶ 9, 273 P.3d 1148, 1150 (2012) (noting Ramirez involved prosecutorial
comment on defendant’s actual statements and demeanor rather than his silence); see also
3
Prior to the question being asked, Lopez had cross-examined witnesses and
attempted to elicit testimony suggesting he had acted in self-defense.
4
Miranda v. Arizona, 384 U.S. 436 (1966).
7
State v. Stevens, 228 Ariz. 411, n.4, 267 P.3d 1203, 1207 n.4 (App. 2012) (context of
statement in Ramirez refers to impeachment rather than direct evidence of guilt). In
VanWinkle, the court held that the state may not comment on a defendant’s post-arrest,
pre-Miranda silence, but it did not decide the issue of pre-arrest silence. 229 Ariz. 233,
¶¶ 15, 20, 273 P.3d at 1152, 1153.
¶14 Some federal courts of appeal, including the First, Sixth, Seventh and Tenth
Circuits, have held that pre-arrest, pre-Miranda silence is not admissible as substantive
evidence of guilt. See Combs v. Coyle, 205 F.3d 269, 283 (6th Cir. 2000); United States
v. Burson, 952 F.2d 1196, 1200-01 (10th Cir. 1991); Coppola v. Powell, 878 F.2d 1562,
1568 (1st Cir. 1989); United States ex rel. Savory v. Lane, 832 F.2d 1011, 1017-18 (7th
Cir. 1987). But, unlike here, in each of these cases the defendant’s pre-arrest silence
occurred in the context of official questioning. Combs, 205 F.3d at 278-79; Burson, 952
F.2d at 1200; Coppola, 878 F.2d at 1567; Savory, 832 F.2d at 1015.
¶15 The Fifth, Ninth and Eleventh Circuit courts of appeal have taken the
opposite view, that a defendant’s pre-arrest, pre-Miranda silence is admissible as
substantive evidence of guilt. See United States v. Oplinger, 150 F.3d 1061, 1066-67
(9th Cir. 1998), overruled on other grounds by United States v. Contreras, 593 F.3d 1135
(9th Cir. 2010) (per curiam); United States v. Zanabria, 74 F.3d 590, 593 (5th Cir. 1996);
United States v. Rivera, 944 F.2d 1563, 1568, 1568 n.12 (11th Cir. 1991). The Fifth
Circuit reasoned that the Fifth Amendment “protects against compelled self-incrimination
but does not . . . preclude the proper evidentiary use and prosecutorial comment about
every communication or lack thereof by the defendant which may give rise to an
8
incriminating inference.” Zanabria, 74 F.3d at 593 (emphasis omitted). The Ninth
Circuit agreed, adopting its holding in United States v. Giese, 597 F.2d 1170, 1197 (9th
Cir. 1979), that “‘[n]either due process, fundamental fairness, nor any more explicit right
contained in the Constitution is violated by the admission of the silence of a person, not
in custody or under indictment, in the face of accusations of criminal behavior.’”
Oplinger, 150 F.3d at 1067, quoting Giese, 597 F.2d at 1197 (alteration in Oplinger); see
also Rivera, 944 F.2d at 1568, 1568 n.12 (defendant’s pre-arrest silence admissible as
substantive evidence because no Miranda warnings given assuring silence would not be
used). The Ninth Circuit also drew guidance from Justice Stevens’s concurrence in
Jenkins. Oplinger, 150 F.3d at 1066. In that case, Justice Stevens explained,
The fact that a citizen has a constitutional right to remain
silent when he is questioned has no bearing on the probative
significance of his silence before he has any contact with the
police. . . . When a citizen is under no official compulsion
whatever, either to speak or to remain silent, I see no reason
why his voluntary decision to do one or the other should raise
any issue under the Fifth Amendment. For in determining
whether the privilege is applicable, the question is whether
petitioner was in a position to have his testimony compelled
and then asserted his privilege, not simply whether he was
silent. A different view ignores the clear words of the Fifth
Amendment.
Jenkins, 447 U.S. at 243-44 (Stevens, J., concurring).
¶16 We find the reasoning of the Fifth, Ninth and Eleventh Circuits persuasive
and agree that, when a defendant’s silence is not the result of state action, the protections
of the Fifth Amendment do not prohibit the state’s comment on that defendant’s
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pre-arrest, pre-Miranda silence. See Oplinger, 150 F.3d at 1067; Zanabria, 74 F.3d at
593; Rivera, 944 F.2d at 1568, 1568 n.12.
¶17 Here, the prosecutor’s question referred to Lopez’s pre-arrest, pre-Miranda
silence, which did not occur in the context of any state action compelling him to speak.
Indeed, during the period referred to by the question, Lopez had not yet had any contact
with law enforcement in relation to these offenses. Therefore, Lopez’s silence is not
protected by the Fifth Amendment, and the prosecutor’s question was not improper. See
Oplinger, 150 F.3d at 1067 (“The [Fifth Amendment’s] self-incrimination clause was
intended as a ‘limitation on the investigative techniques of government, not as an
individual right against the world.’”), quoting United States v. Gecas, 120 F.3d 1419,
1456 (11th Cir. 1997). Accordingly, we find no error, much less fundamental, prejudicial
error. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607.
Disposition
¶18 Lopez’s convictions and sentences are affirmed.
/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Judge
CONCURRING:
/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge
/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge
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