State v. Canales

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

MICHAEL CANALES, Appellant.

No. 1 CA-CR 15-0100
FILED 10-01-2015

Appeal from the Superior Court in Maricopa County
No. CR2013-434869-001 DT
The Honorable Daniel J. Kiley, Judge
The Honorable David B. Gass, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Spencer D. Heffel
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.

W I N T H R O P, Judge:

¶1 Michael Canales (“Appellant”) appeals his convictions and
sentences for two counts of sale or transportation of dangerous drugs.
Appellant’s counsel has filed a brief in accordance with Smith v. Robbins,
528 U.S. 259 (2000); Anders v. California, 386 U.S. 738 (1967); and State v. Leon,
104 Ariz. 297, 451 P.2d 878 (1969), stating that he has searched the record on
appeal and found no arguable question of law that is not frivolous.
Appellant’s counsel therefore requests that we review the record for
fundamental error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96
(App. 1999) (stating that this court reviews the entire record for reversible
error). This court allowed Appellant to file a supplemental brief in propria
persona, and he has done so, raising two issues that we address.

¶2 We have appellate jurisdiction pursuant to the Arizona
Constitution, Article 6, Section 9, and Arizona Revised Statutes (“A.R.S.”)
sections 12-120.21(A)(1), 13-4031, and 13-4033(A).1 Finding no reversible
error, we affirm.

FACTS AND PROCEDURAL HISTORY2

¶3 On September 5, 2013, a grand jury issued an indictment,
charging Appellant with two counts of sale or transportation of dangerous
drugs (methamphetamine), each a class two felony. See A.R.S. § 13-3407.
The State later filed an allegation of historical priors, alleging Appellant had
two historical prior felony convictions for enhancement purposes.

1 We cite the current version of the applicable statutes because no
revisions material to this decision have occurred since the dates of the
offenses.

2 We view the facts in the light most favorable to sustaining the
verdicts and resolve all reasonable inferences against Appellant. See State
v. Kiper, 181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994).

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¶4 At trial, the State presented the following evidence: In March
2013, Phoenix police detectives Egea and Ayala were working undercover
as narcotics officers, and they became aware of Appellant through
Appellant’s former girlfriend and a confidential informant. At
approximately 4:30 p.m. on March 20, the detectives drove to an apartment
complex in Phoenix, where the confidential informant introduced them to
Appellant. The confidential informant walked away after the introduction,
and the detectives, left alone with Appellant, inquired about purchasing
methamphetamine. Appellant informed the detectives that he did not have
the methamphetamine on his person, and the detectives agreed to drive
Appellant to a different location, where Appellant would supply the
methamphetamine.

¶5 The detectives drove Appellant to a second apartment
complex. Detective Egea handed Appellant $110 to purchase the
methamphetamine. Appellant exited the vehicle and entered a nearby
apartment. When Appellant returned, he handed Detective Egea a Ziploc
baggie containing a substance that appeared to be methamphetamine.
Detective Egea gave Appellant an additional $20 for facilitating the deal,
and the detectives drove Appellant back to the first apartment complex.
The substance in the Ziploc baggie that Appellant handed Detective Egea
was subsequently tested and determined to be 3.519 grams of
methamphetamine, a usable quantity.

¶6 On April 10, 2013, the undercover detectives again arranged
to purchase methamphetamine from Appellant. The detectives drove to a
convenience store, where they met the confidential informant. Soon
afterward, at approximately 3:40 p.m., Appellant arrived. Detective Ayala
was the purchaser, and as Appellant approached Detective Ayala in the
parking lot, the confidential informant walked away, while Detective Egea
“kind of hung around [and] watched” the transaction between Appellant
and Detective Ayala. Detective Ayala handed Appellant $150, and
Appellant walked to a vehicle and retrieved a substance, which he gave to
Detective Ayala. The substance was subsequently tested and determined
to be 7.21 grams of methamphetamine in a usable condition.

¶7 The jury found Appellant guilty of both charged counts, and
found the State had proved an alleged aggravating circumstance of
pecuniary gain. Before sentencing, Appellant admitted he had two
historical prior felony convictions for enhancement purposes. The trial
court sentenced Appellant to concurrent, presumptive terms of 15.75 years’
imprisonment in the Arizona Department of Corrections for each count,

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and credited him for 140 days of presentence incarceration. Appellant filed
a timely notice of appeal.

ANALYSIS

I. Alleged Prosecutorial Misconduct/Vouching

¶8 Appellant argues his conviction must be reversed because the
prosecutor committed misconduct during closing argument by vouching
for the State’s witnesses. We disagree.

¶9 “To prevail on a claim of prosecutorial misconduct, a
defendant must demonstrate that ‘(1) misconduct is indeed present; and (2)
a reasonable likelihood exists that the misconduct could have affected the
jury’s verdict, thereby denying [the] defendant a fair trial.’” State v. Moody,
208 Ariz. 424, 459, ¶ 145, 94 P.3d 1119, 1154 (2004) (citation omitted).
Prosecutorial misconduct is not merely “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.” Pool
v. Superior Court, 139 Ariz. 98, 108, 677 P.2d 261, 271 (1984) (footnote
omitted). To justify reversal, the misconduct “must be ‘so pronounced and
persistent that it permeates the entire atmosphere of the trial.’” State v. Lee,
189 Ariz. 608, 616, 944 P.2d 1222, 1230 (1997) (citations omitted). Even then,
reversal is not required unless the defendant was denied a fair trial. State
v. Bible, 175 Ariz. 549, 600, 858 P.2d 1152, 1203 (1993).

¶10 It is improper for a prosecutor to vouch for the credibility of
the State’s witnesses. State v. Salcido, 140 Ariz. 342, 344, 681 P.2d 925, 927
(App. 1984). “Prosecutorial vouching occurs ‘when the prosecutor places
the prestige of the government behind its witness,’ or ‘where the prosecutor
suggests that information not presented to the jury supports the witness’s
testimony.’” State v. Garza, 216 Ariz. 56, 64, ¶ 23, 163 P.3d 1006, 1014 (2007)
(citing State v. Dumaine, 162 Ariz. 392, 401, 783 P.2d 1184, 1193 (1989),
disapproved on other grounds by State v. King, 225 Ariz. 87, 89-90, ¶¶ 9-12, 235
P.3d 240, 242-43 (2010)).

¶11 We have reviewed the entirety of the prosecutor’s closing
arguments, and conclude that nothing in the prosecutor’s remarks
constitutes impermissible prosecutorial vouching. The prosecutor neither
bolstered the detectives’ credibility by referencing matters outside the
record nor placed the prestige of the government behind the detectives by
providing personal assurances of their veracity. See State v. King, 180 Ariz.
268, 277, 883 P.2d 1024, 1033 (1994) (citation omitted). Further, “during
closing arguments counsel may summarize the evidence, make submittals

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to the jury, urge the jury to draw reasonable inferences from the evidence,
and suggest ultimate conclusions.” Bible, 175 Ariz. at 602, 858 P.2d at 1205.
The prosecutor did exactly that. Moreover, viewed in context, the
prosecutor’s arguments made clear that it was for the jury alone to
determine the witnesses’ credibility and to “consider the evidence in light
of reason, common sense, and experience.” Finally, the prosecutor’s
subsequent characterization of the detectives’ testimony as “reasonable”
was fair rebuttal to defense counsel’s argument challenging the detectives’
credibility. See State v. Duzan, 176 Ariz. 463, 468, 862 P.2d 223, 228 (App.
1993); see also State v. Martinez, 130 Ariz. 80, 82, 634 P.2d 7, 9 (App. 1981)
(concluding that prosecutorial comments that are a fair rebuttal to areas
opened by the defense are proper). The prosecutor did not commit
misconduct by her remarks, much less fundamental, reversible error.

II. The Confidential Informant

¶12 Appellant also argues the trial court abused its discretion and
violated the Confrontation Clause in denying his pretrial motion to compel
disclosure of the identity of the State’s confidential informant, who did not
testify at trial. We disagree.

¶13 Appellant’s argument revolves around the following facts:
Before trial, Appellant filed a motion to compel disclosure of the identity of
the confidential informant who introduced the detectives to Appellant. The
State responded that the informant was not present during the charged
transactions and was not a material witness. At the evidentiary hearing on
the motion, Detective Egea testified the confidential informant was not
present during any drug-related conversations or transactions involving
the detectives and Appellant. The prosecutor noted Appellant had not
asserted the defense of entrapment,3 and after argument by counsel, the
trial court denied Appellant’s motion.

¶14 “Disclosure of the existence of an informant or of the identity
of an informant who will not be called to testify” is not required if
“disclosure would result in substantial risk to the informant or to the
informant’s operational effectiveness, provided the failure to disclose will
not infringe the constitutional rights of the accused.” Ariz. R. Crim. P.
15.4(b)(2). A defendant seeking to overcome the State’s policy of protecting
an informant’s identity bears the burden of demonstrating the informant
“would be a material witness on the issue of guilt which might result in

3 The only defense Appellant asserted in his notice of defenses was
insufficiency of the State’s evidence.

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exoneration and that nondisclosure of his identity would deprive the
defendant of a fair trial.” State v. Grounds, 128 Ariz. 14, 15, 623 P.2d 803, 804
(1981) (quoting State v. Tuell, 112 Ariz. 340, 343, 541 P.2d 1142, 1145 (1975),
abrogated on other grounds by State v. Duran, 233 Ariz. 310, 313, ¶¶ 17-18, 312
P.3d 109, 112 (2013)); accord State v. Robles, 182 Ariz. 268, 271, 895 P.2d 1031,
1034 (App. 1995). To make this showing, however, the defendant must
provide evidence, such as “sworn affidavits, stipulated facts, depositions,
and oral testimony.” Grounds, 128 Ariz. at 15, 623 P.2d at 804; accord Robles,
182 Ariz. at 271, 895 P.2d at 1034 (affirming the denial of a motion for
disclosure for failure to present evidence in support of the appellant’s claim
that the confidential informant had entrapped him). “A mere possibility or
speculative hope that an informant might have other information which
might be helpful to the defendant is insufficient” to compel disclosure. State
ex rel. Berger v. Superior Court (Sorum), 21 Ariz. App. 170, 172, 517 P.2d 523,
525 (1974).

¶15 In this case, Appellant did not testify at the evidentiary
hearing on the disclosure motion or present any affidavit, deposition
testimony, or other evidence in support of his motion. Instead, as in
Grounds and Robles, only defense counsel’s argument was presented in
support of the requested disclosure. Both of those courts found argument
alone insufficient, and so do we. See Grounds, 128 Ariz. at 15, 623 P.2d at
804; Robles, 182 Ariz. at 271, 895 P.2d at 1034. Other than the testimony of
Detective Egea, which supports the trial court’s decision to deny
Appellant’s motion, the record is devoid of evidence on which this court
can further review the trial court’s ruling. Accordingly, on this record,
disclosure of the confidential informant’s identity would have been
inappropriate, and Appellant has not sustained his burden of proving he
was deprived of a fair trial by the denial of his motion. See Grounds, 128
Ariz. at 15, 623 P.2d at 804.

¶16 Further, the Confrontation Clause4 prohibits the admission of
an out-of-court statement of a witness who does not appear at trial if the
statement is testimonial, unless the witness is unavailable and the
defendant had a prior opportunity to cross-examine the witness. See
Crawford v. Washington, 541 U.S. 36, 53–54 (2004). Because no testimony of
the confidential informant was offered against Appellant, Appellant’s

4 The Sixth Amendment to the United States Constitution provides
that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to
be confronted with the witnesses against him.” See also Ariz. Const. art. 2,
§ 24 (“In criminal prosecutions, the accused shall have the right . . . to meet
the witnesses against him face to face . . . .”).

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rights under the Confrontation Clause were not implicated. The trial court
did not abuse its discretion, much less commit fundamental, reversible
error in denying Appellant’s motion to compel the identity of the State’s
confidential informant.

III. Other Issues

¶17 We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881; Clark, 196 Ariz. at 537,
¶ 30, 2 P.3d at 96. The evidence presented at trial was substantial and
supports the verdicts, and the sentences imposed were within the statutory
limits. Appellant was represented by counsel at all stages of the
proceedings and allowed to speak at sentencing. The proceedings were
conducted in compliance with his constitutional and statutory rights and
the Arizona Rules of Criminal Procedure.

¶18 After filing of this decision, defense counsel’s obligations
pertaining to Appellant’s representation in this appeal have ended.
Counsel need do no more than inform Appellant of the status of the appeal
and of his future options, unless counsel’s review reveals an issue
appropriate for petition for review to the Arizona Supreme Court. See State
v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Appellant has
thirty days from the date of this decision to proceed, if he desires, with a pro
per motion for reconsideration or petition for review.

CONCLUSION

¶19 Appellant’s convictions and sentences are affirmed.

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