State v. Stewart

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

ROBERT JOEARL STEWART, Appellant.

No. 1 CA-CR 15-0156
FILED 11-8-2016

Appeal from the Superior Court in Maricopa County
No. CR 2013-111961-001
The Honorable Virginia L. Richter, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Adele G. Ponce
Counsel for Appellee

The Nolan Law Firm, PLLC, Mesa
By Cari McConeghy Nolan
Counsel for Appellant
 STATE v. STEWART
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Donn Kessler joined.

J O N E S, Judge:

¶1 Robert Stewart appeals his conviction and sentence for
aggravated assault. For the following reasons, we affirm.

FACTS1 AND PROCEDURAL HISTORY

¶2 At 1:29 a.m. on March 9, 2013, Officer William Tunis
responded to a dispatch report of a physical altercation between two men
at a trailer park. When Officer Tunis arrived, Melissa D. and James M. were
standing outside Melissa’s residence, and the victim was lying on the floor
surrounded by “a huge puddle of blood.” Initially, Officer Tunis believed
the victim was dead but was able to rouse him after repeatedly calling his
name. The victim then sat up, complained of pain in his head, teeth, and
leg, and reported that he could no longer see out of one eye. During this
brief interaction, the victim also told Officer Tunis that Stewart had
assaulted him with a metal pipe. At that point, medical personnel arrived
and transported the victim to the hospital.

¶3 Officer Thomas Elliff also responded to the 1:29 a.m. dispatch
call. As he arrived, an air unit informed him a male subject was seen exiting
the complex. Officer Elliff located and approached the subject, later
identified as Stewart, and observed him to be sweaty, nervous, agitated,
and shaky. When asked to sit down, Stewart complied and then told Officer
Elliff that he had just been punched but blacked out after he was hit and
did not remember anything else.

¶4 Officer Elliff then went to Melissa’s residence, where he spoke
with Melissa and James, who were still standing outside. James stated he
was outside the trailer with Melissa when he heard fighting inside.

1 Although the witnesses’ testimony conflicts on various points, we
view the facts in the light most favorable to sustaining the conviction. State
v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013) (citing State v. Stroud, 209 Ariz. 410,
411, ¶ 6 (2005)).

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Concerned, James entered the trailer and saw Stewart on top of the victim
with an object in his hand. James then screamed “you’re going to kill him”
and pushed Stewart off the victim.

¶5 Officer Elliff confronted Stewart with James’ and Melissa’s
statements. In response, Stewart told Officer Elliff that he, Melissa, and
James repeatedly asked the victim to leave. After the victim refused,
Stewart “grabbed a piece of rebar” near the residence with the intent “to
intimidate” the victim into leaving. Stewart claimed he then reentered the
residence and ordered the victim to leave; the victim then punched him and
grabbed at the rebar. Although “he didn’t mean to hit [the victim] with it,”
Stewart admitted he “probably” hit the victim with the rebar a few times.
Stewart then acknowledged he repeatedly hit the victim until James
“pushed” him away. Once James intervened, Stewart exited the residence,
dropped the rebar near a tree, and walked away where he was eventually
approached by Officer Elliff.

¶6 The State proceeded to trial against Stewart on one count of
aggravated assault in 2013. Stewart was retried in 2014 after the first trial
resulted in a hung jury.

¶7 At the 2014 trial, the victim testified he met Stewart while both
were residents of a halfway house. During their stay, the men bonded and
the victim considered Stewart his best friend. The victim met Melissa at the
same time because her husband was also a resident and began a sexual
relationship with her. When the victim later learned Stewart and Melissa
also had a sexual relationship, he was upset because he felt Stewart had
chosen Melissa over their friendship.

¶8 According to the victim, Melissa invited him to her residence
on March 7, 2013, but he did not respond to the invitation. The following
evening, however, the victim went to Melissa’s residence after work. When
he arrived, Stewart was drinking with Melissa and the victim joined them.
After a few drinks, James arrived and “disrespected” him. The victim then
left and went to a nearby convenience store to buy juice and more alcohol.
When the victim returned, he drank more and then fell asleep in a bedroom.
He awoke in the hospital with no recollection of any fight with Stewart or
conversation with Officer Tunis. When later interviewed, he stated he did
not believe Stewart would hurt him. As a result of the attack, the victim
now suffers from permanent vision loss in his right eye, nerve damage in
his face, and mental impairment.

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¶9 James testified he was sharing drinks with Melissa and
Stewart at Melissa’s home when the victim arrived unexpectedly. The
victim was intoxicated and belligerent but soon calmed down and joined
the others for drinks. The victim resumed his aggressive demeanor later
that evening, however, and stated he was going to spend the night and
would “kill” anyone who tried to make him leave. He then retired to a back
bedroom. After the three friends walked to a nearby convenience store to
discuss the situation, James offered to return to the residence to ask the
victim to leave. The victim refused, and James decided to leave. Stewart
arrived as James was exiting and informed James he would “get him out”
and would use violence if necessary. James noticed Stewart held a metal
pipe in his hand and, concerned, followed Stewart back inside. James heard
Stewart tell the victim, “I’m going to kill you.” By the time James reached
the back bedroom, the victim was lying on the ground. James yelled, “stop,
you’re going to kill him,” and Stewart ran out of the trailer.

¶10 Stewart testified in his defense. According to Stewart, the
victim had a knife on the night of the incident and threatened to stab the
others if they tried to make him leave. Frightened, James, Melissa, and
Stewart fled the trailer and went to a nearby convenience store. While there,
Melissa met a young couple and told them about the situation. The young
woman offered to talk to the victim on Melissa’s behalf, and they all walked
back to the residence. When the couple entered the residence, the victim
“threw the girl out” and punched the young man. Witnessing this assault,
and believing the victim would use his knife to attack, Stewart grabbed a
nearby piece of rebar. The victim then threatened to kill Stewart and
grabbed onto the rebar. A physical altercation ensued, with Stewart and
the victim each trying to wrangle the rebar from the other. The wrestling
ended when the victim said “I give up.” At that point, Stewart left the
trailer.

¶11 The jury convicted Stewart as charged. The jury also found
the State proved the assault caused physical, emotional, or financial harm
to the victim. The trial court sentenced Stewart to an aggravated term of
ten years’ imprisonment. Stewart timely appealed, and we have
jurisdiction pursuant to Arizona Revised Statutes sections 12-120.21(A)(1),2
13-4031, and -4033(A)(1).

2 Absent material changes from the relevant date, we cite a statute’s
current version.

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DISCUSSION

I. Conflict of Interest

¶12 Stewart first argues the Maricopa County Public Defender’s
Office (MCPDO) had a conflict of interest because it represented the victim
in several unrelated matters before representing Stewart in this case.
Stewart argues he did not waive the conflict and it prejudiced him because
it caused trial counsel to forego impeachment of the victim regarding his
prior convictions. Essentially, Stewart makes a claim for ineffective
assistance of counsel predicated on a perceived conflict of interest. See State
v. Bennett, 213 Ariz. 562, 567, ¶ 21 (2006) (noting a colorable claim for
ineffective assistance of counsel must include a showing “both that
counsel’s performance fell below objectively reasonable standards and that
this deficiency prejudiced the defendant”) (citing Strickland v. Washington,
466 U.S. 668, 687 (1984)). Because a claim of ineffective assistance of counsel
may be raised only in a petition for post-conviction relief, we do not address
it. See State v. Spreitz, 202 Ariz. 1, 3, ¶ 9 (2000) (“[I]neffective assistance of
counsel claims are to be brought in Rule 32 proceedings. . . . Any such
claims improvidently raised in a direct appeal . . . will not be addressed by
appellate courts regardless of merit.”).

II. Brady Material

¶13 Stewart also argues the State failed to adequately disclose one
of the victim’s prior convictions in violation of Brady v. Maryland, 373 U.S.
83, 87 (1963) (holding a defendant has a due process right to discover
information both material and exculpatory). Although Stewart raised this
claim of a Brady violation during the 2013 trial, he did not raise the issue at
the 2014 trial.

¶14 The record reflects Stewart moved to continue the 2013 trial
upon discovering the victim had a previously undisclosed prior felony
conviction out of Illinois. After a hearing on Stewart’s subsequent motion
to compel information regarding the victim’s criminal history, the trial
court determined Stewart had already requested documents to substantiate
the victim’s Illinois conviction and denied the motion to compel,
concluding Stewart would receive the necessary information through his
own efforts. At the 2013 trial, defense counsel cross-examined the victim
regarding the Illinois conviction, eliciting admissions that the conviction
was for aggravated battery and that the victim had pled guilty. Stewart did
not make any further requests for information regarding the victim’s
Illinois conviction, did not cross-examine the victim on the issue in the 2014

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trial, and affirmatively acknowledged, through counsel, during the 2014
trial he “wasn’t planning on going into” the victim’s prior felony
conviction. Because Stewart failed to preserve the issue, see State v.
Anderson, 210 Ariz. 327, 336, ¶ 18 (2005) (holding objection at first trial does
not preserve error for appellate review of second trial), we review only for
fundamental, prejudicial error, State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19-
20 (2005).

¶15 To satisfy its disclosure requirements under Brady, the State is
required “to turn over evidence in its possession that is both favorable to
the accused and material to guilt or punishment.” Pennsylvania v. Ritchie,
480 U.S. 39, 57 (1987). Accordingly, “[w]hen the ‘reliability of a given
witness may well be determinative of guilt or innocence,’” the State must
disclose all evidence affecting the witness’s credibility. Giglio v. United
States, 405 U.S. 150, 154 (1972) (quoting Napue v. Illinois, 360 U.S. 264, 269
(1959)). The State is not required to disclose evidence outside of its control.
See Ariz. R. Crim. P. 15.1(f) (setting forth the scope of a prosecutor’s
disclosure obligation to include materials and information in the possession
of any agency or person “under the prosecutor’s direction and control”); see
also Ritchie, 480 U.S. at 57.

¶16 Applying those principles here, we find no error. The record
reflects the State disclosed its knowledge of the victim’s prior criminal
history, including the location and nature of the offense. Although Stewart
argues the State was required to produce records substantiating the Illinois
conviction, the trial court found the prosecutor did not possess any records
regarding the conviction, and Stewart does not argue otherwise. The State’s
inability to produce supporting documentation from a separate
governmental entity not under its control was not a Brady violation.

¶17 Moreover, even if we were to assume error, Stewart has failed
to demonstrate prejudice. Stewart’s counsel effectively cross-examined the
victim regarding the Illinois conviction in the 2013 trial without relying on
documentation. We have no reason to believe the examination of the victim
in the 2014 trial would have been hamstrung by a lack of supporting
documentation had counsel attempted to impeach the victim with his
criminal history. Indeed, even in the absence of the documentation, the
victim admitted having a prior criminal history on direct examination. On
this record, Stewart has failed to prove either error or prejudice in the State’s
disclosure of the victim’s criminal history.

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III. Comments on Stewart’s “Silence”

¶18 Stewart argues the prosecutor impermissibly commented on
his silence at various points during the trial, thereby infringing on his
constitutional rights. We review constitutional issues de novo. State v.
Nordstrom, 230 Ariz. 110, 115, ¶ 17 (2012) (citing State v. Roque, 213 Ariz. 193,
217, ¶ 89 (2006)).

¶19 During opening statements, the prosecutor remarked that
“[Stewart] never told Officer Elliff . . . all the details associated with the facts
of this case. . . . Officer Elliff gave him the opportunity, and you’re going to
hear that he didn’t — he didn’t tell him all these details.” While presenting
his case-in-chief, the prosecutor asked Officer Elliff whether Stewart told
him, “at any point,” that the victim had a knife, and Officer Elliff answered
that Stewart did not mention a knife. Later, while cross-examining Stewart,
the prosecutor suggested Stewart never told anyone about the knife until
trial, and Stewart denied the assertion, stating he had informed his first
attorney that the victim had a knife. As a follow-up, the prosecutor asked
whether Stewart told any police officers that the victim had a knife, and
Stewart responded that he did not tell Officer Elliff that the victim had a
knife, but he did tell two other officers, neither of whom wrote a report.
The prosecutor then asked whether Officer Elliff provided Stewart with the
opportunity “to tell [his] full story.” Defense counsel objected, arguing the
question improperly commented on Stewart’s right to remain silent. The
prosecutor responded that he was not commenting on Stewart’s right to
remain silent because Stewart “was talking to all of these officers.” After
the trial court overruled the objection, Stewart stated that he answered all
of the questions Officer Elliff posed to him and acknowledged he never told
Officer Elliff about the knife but explained that was because “[h]e never
asked me.”

¶20 The Fifth Amendment provides that “[n]o person . . . shall be
compelled in any criminal case to be a witness against himself.” U.S. Const.
Amend. V. A defendant therefore has the right to remain silent when it is
“evident from the implications of the question, in the setting in which it is
asked, that a responsive answer to the question or an explanation of why it
cannot be answered might be dangerous because injurious disclosure could
result.” Hoffman v. United States, 341 U.S. 479, 486-87 (1951). This privilege
against self-incrimination “generally is not self-executing,” meaning a
person “who desires its protection must claim it.” Salinas v. Texas, 133 S. Ct.
2174, 2178 (2013) (quoting Minnesota v. Murphy, 465 U.S. 420, 425, 427
(1984)). Thus, in a non-custodial setting, a claim of the privilege must be

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affirmative and express, such that a person does not invoke the privilege by
merely remaining silent in response to questioning. Id. at 2181.

¶21 Moreover, a defendant who speaks voluntarily has not
remained silent, Anderson v. Charles, 447 U.S. 404, 408 (1980), and a
prosecutor may therefore discuss statements a defendant has voluntarily
made without commenting on the accused’s right to remain silent, State v.
Raffaele, 113 Ariz. 259, 262 (1976) (rejecting the defendant’s argument that
the prosecutor violated his Fifth Amendment rights by commenting on his
failure to give a complete explanation at the scene and concluding “the
prosecutor could not have been commenting on the accused’s right to
remain silent because the accused did not keep silent”); see also Charles, 447
U.S. at 409 (concluding a prosecutor may demonstrate inconsistencies
between descriptions of an event that “involve ‘silence’ insofar as [each]
omits facts included in the other version”). As a corollary, a prosecutor may
impeach a defendant who has made “new exculpatory statements at trial”
with his earlier, voluntary statements made to police officers. State v. Tuzon,
118 Ariz. 205, 207 (1978).

¶22 In this case, Stewart neither claims he was subjected to
custodial interrogation nor suggests that he invoked the Fifth Amendment
privilege during Officer Elliff’s questioning. His responses to Officer Elliff
were therefore voluntary, he did not remain “silent” for purposes of the
Fifth Amendment, and the prosecutor did not commit any misconduct by
demonstrating inconsistencies between Stewart’s trial testimony and his
earlier statements, or arguing Stewart’s failure to mention a knife to Officer
Elliff belied his self-defense claim at trial.

IV. Preclusion of Written Statement

¶23 Stewart argues the trial court improperly excluded James’
written statement to law enforcement and thereby denied Stewart his
constitutional right to present a full defense. Specifically, Stewart contends
he should have been permitted to introduce James’ written statement to
impeach James’ trial testimony that he overheard Stewart threaten to kill
the victim. We generally review a trial court’s evidentiary ruling for an
abuse of discretion. State v. Ellison, 213 Ariz. 116, 129, ¶ 42 (2006) (citing
State v. Tucker, 205 Ariz. 157, 165, ¶ 41 (2003)). To the extent a defendant
sets forth a constitutional claim by asserting that the evidence was
necessary to his defense, however, we conduct a de novo review. Id. (citing
Lilly v. Virginia, 527 U.S. 116, 137 (1999)).

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¶24 During her cross-examination of Officer Tunis, Stewart’s
counsel elicited testimony that Officer Tunis was the “witnessing officer”
to the written statement James prepared at the scene. When counsel moved
to admit the written statement into evidence, the prosecutor objected on
hearsay grounds. Defense counsel responded that the statement was a
present sense impression, and therefore an admissible exception. The trial
court instructed defense counsel to lay foundation to establish the written
statement qualified as a present sense impression. In response to defense
counsel’s questions, Officer Tunis testified only that the written statement
was prepared on March 8, 2013. The court found defense counsel had only
established the date the written statement was prepared, not the time, and
the evidence was insufficient to conclude that the statement was prepared
sufficiently close in time to the underlying events to qualify as a present
sense impression. Based on this ruling, defense counsel informed the court
that she would attempt to locate dispatch information that may help with
the time frame, and asked that the officer not be excused. Later, during the
defense’s case-in-chief, defense counsel recalled Officer Tunis to confirm
that he left the crime scene at 3:00 a.m., but did not attempt to introduce
James’ written statement at that time.

¶25 On appeal, Stewart does not challenge the trial court’s finding
that defense counsel failed to lay sufficient foundation that James’ written
statement was a present sense impression. Rather, he argues only that the
statement should have been admitted to impeach James’ testimony.
Because Stewart did not seek to introduce the written statement for
impeachment purposes at trial, we review only for fundamental, prejudicial
error. See Anderson, 210 Ariz. at 336, ¶ 18; Henderson, 210 Ariz. at 567,
¶¶ 19-20.

¶26 James was not available to testify at the 2014 trial, so his
testimony from the 2013 trial was read to the jury in its entirety. Thus, the
jury heard Stewart’s counsel impeach James regarding his claim that he
overheard Stewart threaten to kill the victim, including the following
exchange:

Q: [Y]ou made some statements about overhearing things
that [Stewart] was saying to [the victim]. Do you remember
that? You just testified that you heard [Stewart] say: I am
going to kill you; correct?

A: When he was — when he was swinging, that’s what he
was saying.

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Q: Okay. And you can agree that your memory about this
incident was better in March when it happened than today;
correct?

A: Right.

Q: And in your written statement, you didn’t put anything
like that; did you?

A: I don’t know. I don’t know. I don’t recall.

...

Q: That’s your written statement you gave to the police that
night?

A: Yes, sir.

Q: And nowhere in that written statement does it say: I heard
[Stewart] say I’m going to kill you?

A: No, I don’t think so.

Q: So that’s something you added today while you’re
testifying?

A: It wasn’t added. That’s what I recall.

...

Q: But it’s nowhere in there, that statement?

A: No.

Defense counsel also elicited an admission from James that he never
claimed to have overheard Stewart’s threat during his pretrial defense
interview.

¶27 Because Stewart did not seek to introduce the written
statement as impeachment material at the 2014 trial, we cannot say the trial
court erred by excluding it as inadmissible hearsay. Even assuming the
exclusion of the statement was error, however, Stewart has failed to
demonstrate any prejudice. The jury heard Stewart’s counsel thoroughly
impeach James’ testimony with the substance of his written statement.
Stewart has not explained on appeal how the introduction of the written

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statement itself would have provided greater impeachment material than
that already presented to the jury. Therefore, we find no error, much less
fundamental, prejudicial error.

V. Admission of Police Report

¶28 Stewart contends the trial court erred by admitting a police
report comprised of hearsay and other act evidence. Because neither the
police officer who created the report nor the victim who provided the
statements contained in the report was testifying when the report was
introduced, Stewart also argues the admission of the report violated his
constitutional right to confront witnesses.

¶29 Before the 2013 trial, Stewart moved in limine to preclude the
State from introducing other act evidence memorialized in a police report.
Specifically, Stewart sought to preclude the victim’s statements alleging
Stewart: (1) used illegal drugs on March 8, 2013; (2) possessed illegal drugs
on March 8, 2013; (3) sold illegal drugs; and (4) “pimp[ed] out a girl.” The
trial court granted the motion and instructed the victim not to mention any
of the enumerated allegations while testifying.

¶30 At the 2014 trial, Stewart testified he had reviewed several
police reports, including the statements the victim, Melissa, and James gave
to police officers. On redirect, Stewart testified he had reviewed Officer
Jeffrey Ferrell’s report and believed it to be consistent with his own trial
testimony. The prosecutor objected to the questioning as an improper
attempt to “bring[] in the contents of the police report to try to prove or
disprove what is actually in the report.” The trial court overruled the
objection to the extent Stewart was referring to his own statements and not
those of the other witnesses.

¶31 Later, in response to a jury question, Stewart testified the
victim had threatened James when James asked the victim to leave and
claimed James had reported the victim’s threat to Officer Elliff. Stewart
continued, stating the victim had reported the two had wrestled over the
rebar and claiming a statement to that effect was in Officer Ferrell’s report,
which the prosecutor likewise intentionally withheld from the jury. He also
accused the prosecutor of intentionally withholding the contents of the
police report from the jury.

¶32 On recross-examination, Stewart again attempted to bolster
his testimony that he and the victim wrestled over the rebar by claiming it
was consistent with the contents of Officer Ferrell’s police report. He also
expressed “frustration” that the prosecutor was objecting to the admission

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of that evidence because “the jury should know.” In response to this
testimony, the prosecutor moved to introduce Officer Ferrell’s police report
into evidence, arguing Stewart had “put the contents of that into question
in this case.” Defense counsel objected, suggesting the report may be
inadmissible under the law of the case and arguing the victim’s allegations
that Stewart participated in unrelated criminal activity were inadmissible
under Arizona Rules of Evidence 403 and 404(b). The trial court overruled
the objection and admitted the exhibit.

¶33 Without objection, the prosecutor then asked Stewart to
identify the relevant portion of the police report detailing the victim’s
alleged statement that he and Stewart had struggled over the rebar. Stewart
read a portion of the report aloud, in which the victim stated he was injured
while attempting to wrestle a pipe away from an unidentified male.
Without objection, the prosecutor then asked Stewart whether the victim
had identified Stewart as the unidentified male, and Stewart agreed that the
victim had not and had even expressed disbelief that Stewart would hurt
him.

¶34 Although the prosecutor and Stewart each referred to the
police report, neither referenced any allegations of unrelated criminal
activity contained in the report. Equally important, the record reflects that
the exhibit was not ultimately received in evidence and therefore was not
viewed by the jury. Accordingly, none of the prejudicial allegations
precluded by the trial court’s motion in limine ruling were brought before
the jury’s consideration. Indeed, the only portion of the report presented
to the jury was the victim’s statement that he and an unidentified male
wrestled over the rebar.

¶35 Stewart did not object to the admission of the police report on
hearsay or Confrontation Clause grounds, nor did he object to the
prosecutor’s questions referencing the report, and therefore did not
preserve the issue on those bases. See State v. Lopez, 217 Ariz. 433, 434-35,
¶ 4 (App. 2008) (“[A]n objection on one ground does not preserve the issue
[for appeal] on another ground.”) (citing State v. Hamilton, 177 Ariz. 403, 408
(App. 1993)). Accordingly, we review solely for fundamental, prejudicial
error. See Henderson, 210 Ariz. at 567, ¶¶ 19-20.

¶36 When “one party injects improper or irrelevant evidence or
argument, the ‘door is open’ and the other party may have a right to
retaliate by responding with comments or evidence on the same subject,”
even if such evidence would be inadmissible otherwise. Pool v. Superior
Court, 139 Ariz. 98, 103 (1984) (citing State v. Woodward, 21 Ariz. App. 133

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(1973), and 1 M. Udall & J. Livermore, Arizona Practice, Law of Evidence § 11
at 11 (2d ed. 1982)); see also State v. Fish, 222 Ariz. 109, 124 n.11, ¶ 48 (App.
2009) (explaining how the prosecutor’s remarks regarding the victim’s
demeanor opened the door for the defendant to introduce prior act
evidence to show the victim’s state of mind). In essence, the “open door”
doctrine prohibits a party from complaining about a result he caused. State
v. Lindsey, 149 Ariz. 472, 477 (1986) (quoting Udall & Livermore § 11 at 11).

¶37 As applied here, Stewart opened the door to the limited
portion of the police report presented to the jury. He repeatedly claimed
the prosecutor had intentionally withheld the police report from the jury
because the State did not want the jury to know the victim had originally
made potentially exculpatory statements. The trial court acted well within
its discretion by allowing the State to question Stewart regarding the
specific, narrow portions of the police report he had placed at issue.

¶38 Additionally, Stewart has not alleged, much less shown, any
prejudice in the admission of information contained in the police report.
The jury simply heard evidence that the victim told Officer Ferrell he
struggled with an unidentified man over the rebar, sustained injuries as a
result, and did not believe the man could have been Stewart. This
information was not prejudicial to the defense. Therefore, the trial court
did not err, much less commit fundamental, prejudicial error, by allowing
the State to question Stewart regarding these discrete sections of Officer
Ferrell’s police report.

VI. Prosecutorial Misconduct

¶39 Stewart also contends the prosecutor engaged in misconduct
by: (1) implying the victim told Officer Ferrell that Stewart caused his
injuries; (2) placing the prestige of the government behind the State’s case;
and (3) incorrectly stating the jury instruction on crime prevention. Stewart
did not object on these bases in the trial court, and we therefore review only
for fundamental, prejudicial error. See Henderson, 210 Ariz. at 567, ¶¶ 19-
20. Under this standard of review, the defendant must first prove that
misconduct actually occurred. State v. Edmisten, 220 Ariz. 517, 524, ¶ 23
(App. 2009) (citing Henderson, 220 Ariz. at 567, ¶ 19, and then State v. Harrod,
218 Ariz. 268, 278, ¶ 35 (2008)). Prosecutorial misconduct is not “merely the
result of legal error, negligence, mistake or insignificant impropriety.” State
v. Aguilar, 217 Ariz. 235, 238-39, ¶ 11 (App. 2007) (quoting Pool, 139 Ariz. at
108-09). Rather, viewed in its entirety, it is “intentional conduct” that the
prosecutor “knows to be improper and prejudicial and which he pursues
for any improper purpose.” Id. (quoting Pool, 139 Ariz. at 108-09). After

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establishing error, the defendant must then demonstrate “that the
prosecutor’s misconduct so infected the trial with unfairness as to make the
resulting conviction a denial of due process. Reversal on the basis of
prosecutorial misconduct requires that the conduct be so pronounced and
persistent that it permeates the entire atmosphere of trial.” Edmisten, 220
Ariz. at 524, ¶ 23 (quoting Harrod, 219 Ariz. at 278, ¶ 35).

¶40 First, Stewart argues the prosecutor implied during his direct
examination of Officer Ferrell that the victim had told Officer Ferrell that
Stewart assaulted him. This claim is not borne out by the record. Rather,
the prosecutor asked the officer whether, at the time he interviewed the
victim at the hospital, he was informed “who the suspect may be,” and
Officer Ferrell stated he “had no idea who the suspect was.” The prosecutor
then asked when the officer learned that Stewart “was a potential suspect,”
and Officer Ferrell testified he did not learn that information until “[a]fter
the case had already been completed at the police level.” Indeed, when
Officer Ferrell interviewed the victim, the victim described another man as
a potential suspect and stated he did not believe Stewart, his friend, would
harm him. No reasonable reading of this testimony supports Stewart’s
claim that the prosecutor implied the victim identified Stewart as his
attacker to Officer Ferrell.

¶41 Second, Stewart contends the prosecutor improperly placed
the prestige of the government behind the State’s case. Specifically, Stewart
claims the prosecutor “associate[d] himself with the jury” by stating the
“system entrusts you [the jurors] to see through [Stewart’s claim of self-
defense] and make the correct decision” and explaining that the prosecutor
and the jurors, together, would look at the facts. Stewart also objects to the
prosecutor’s request that the jurors tell Stewart “what [he] did is wrong and
we, as society, cannot accept that.”

¶42 There are two forms of impermissible prosecutorial vouching:
(1) when the prosecutor places the prestige of the government behind its
witness, and (2) when the prosecutor suggests that information not
presented to the jury supports the witness’s testimony. State v. Vincent, 159
Ariz. 418, 423 (1989) (citing State v. Salcido, 140 Ariz. 342, 344 (App. 1984)).
In this case, the prosecutor’s comments neither bolstered any witness’s
testimony nor suggested that information unavailable to the jury supported
a witness’s testimony. Instead, the prosecutor’s comments, considered in
context, fell within the wide latitude afforded attorneys in presenting their
closing arguments to the jury. See State v. Comer, 165 Ariz. 413, 426 (1990).

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Decision of the Court

¶43 Third, Stewart argues the prosecutor misstated the jury
instruction regarding his defense of crime prevention and mischaracterized
its application to this case during closing argument. The prosecutor stated:

Use of force in crime prevention. If you turn to [the jury
instructions regarding] burglary, that does not apply in this
case. Okay? It doesn’t apply because there’s no evidence to
support that the defendant entered to commit a theft.

What’s the accusation here in this case? That the defendant
was assaulting somebody. So burglary doesn’t apply.

¶44 Without question, the prosecutor’s comments regarding the
use of force in crime prevention were inaccurate. First, the prosecutor
incorrectly referenced Stewart rather than the victim when discussing its
application to this case. Second, the prosecutor incorrectly limited the
crime of burglary to entry with an intent to commit theft. Viewed within
the context of the prosecutor’s entire closing argument, however, the record
reflects that this brief, incorrect comment was the result of confusion or
mistake rather than intentional misconduct.

¶45 In any event, there is no basis to conclude the comments were
prejudicial. First, the trial court correctly instructed the jury that the
attorneys’ comments in closing argument were not evidence, and,
regarding the defense of crime prevention as follows:

The defendant was justified in threatening or using physical
force against another if and to the extent the person
reasonably believed that physical force was immediately
necessary to prevent another from committing the crimes of
burglary and/or aggravated assault.

...

The defendant is justified in using physical force against
another person even if that person is not actually committing
or attempting to commit the crimes if the defendant
reasonably believed he was preventing the commission of the
crimes.

...

The crime of burglary requires proof that the person:

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Decision of the Court

Entered or remained unlawfully in or on a residential
structure; and

Did so with the intent to commit any theft or felony therein.

We presume that the jurors followed the court’s instructions, particularly
where, as here, nothing in the record suggests the jurors were confused or
misdirected. See State v. Prince, 226 Ariz. 516, 537, ¶ 80 (2011) (citing State
v. LeBlanc, 186 Ariz. 437, 439 (1996)). Second, defense counsel properly
argued to the jury that burglary encompassed entry to commit any felony.
Therefore, although the cited portion of the prosecutor’s argument was
incorrect, it was not prejudicial to the defendant.

VII. Verdict Form

¶46 Finally, Stewart argues the trial court erred by failing to
provide the jurors with a separate form of verdict for each of his affirmative
defenses, self-defense, and crime prevention. Specifically, he argues that
because the burden of disproving a defense shifts to the State once the
defendant has supported the defense with some evidence, the failure to
provide the jurors separate forms of verdict relieved the State of its
constitutional obligation to prove guilt beyond a reasonable doubt. Stewart
did not object to the verdict form in the trial court. We therefore review
solely for fundamental, prejudicial error. See Henderson, 210 Ariz. at 568,
¶¶ 19-20.

¶47 Stewart has not cited, and our research has not revealed, any
authority for the proposition that a trial court must provide jurors with a
separate form of verdict for affirmative defenses. To the contrary, Arizona
Rule of Criminal Procedure 23.2(a) provides that juries must return general
verdicts, simply “finding the defendant either guilty or not guilty.” The
enumerated exceptions to this rule are limited to insanity verdicts, separate
verdict forms for different counts or offenses, specific verdicts for offenses
divided into degrees, aggravation verdicts, and capital verdicts. Ariz. R.
Crim. P. 23.2 (b)-(f). Thus, under Rule 23.2(a), jurors considering
affirmative defenses nonetheless render a general verdict.

¶48 Because the trial court properly instructed the jury regarding
the defenses and “the need for a jury finding beyond a reasonable doubt
that the defenses were not established” and the verdict form was in
accordance with Rule 23.2(a), we find no error, much less fundamental,
prejudicial error, in the court’s submission of a general verdict form to the
jury.

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Decision of the Court

CONCLUSION

¶49 Stewart’s conviction and sentence are affirmed.

AMY M. WOOD • Clerk of the Court
FILED: AA

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