State v. Gurrieri

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

GUY RUSSELL GURRIERI, Appellant.

No. 1 CA-CR 15-0136
FILED 11-29-2016

Appeal from the Superior Court in Maricopa County
No. CR2013-003333-001
The Honorable John R. Ditsworth, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Robert A. Walsh
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant
 STATE v. GURRIERI
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MEMORANDUM DECISION

Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Patricia A. Orozco joined.

G O U L D, Judge:

¶1 Guy Russell Gurrieri appeals his conviction and sentence for
burglary in the third degree. For the reasons that follow, we affirm.

BACKGROUND1

¶2 At approximately 2:30 p.m. on April 10, 2013, an officer was
on routine patrol when he approached the victim’s warehouse. As he drove
up to the property, he observed an open, roll-up garage door, a white van,
a white pickup truck with a large trailer attached, and four men (Gurrieri,
Theodore Luciow, William McKeever, and Amos Walker) “moving about.”
Undetected for a few moments, the officer saw Gurrieri repeatedly enter
and exit the warehouse, carrying large items and placing them into the van.
The officer also saw McKeever and Luciow exit the warehouse.

¶3 Before long, Luciow, McKeever, and Walker appeared to
notice the officer; as a result, they got into the truck and began to drive
away. The officer, however, blocked their exit with his patrol vehicle and
detained them.

¶4 Based on his previous contact with the victim, the officer
knew that no one was permitted on the property. Nonetheless, he called
the victim and confirmed that none of the men were authorized to enter the
warehouse or remove property. The officer then arrested all of the men.

¶5 Following the arrests, police obtained a search warrant. They
searched the van and truck, and recovered numerous items belonging to
the victim from both vehicles. Police also found various tools, including
pliers, vise grips, hand cutters, glass cutters, and wrenches.

1 We view the facts in the light most favorable to sustaining the
verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).

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¶6 The State charged Gurrieri and the other men with burglary
in the third degree, criminal damage, and possession of burglary tools.2

¶7 At trial, the victim testified that he purchased the warehouse
in 1990 and used it to store aircraft equipment, vehicles, and other large
items. He denied knowing any of the defendants and stated he did not give
anyone permission to enter his warehouse. He also confirmed that the
property seized from the van and truck belonged to him, and stated that
the last time he left the warehouse, the roll-up door had been secured by
chains and padlocks.

¶8 Gurrieri was the only defendant to testify at trial. He
explained that he earns a living by performing odd jobs, primarily junk
removal. Gurrieri testified that on April 6, 2013, while working at a junk
removal site, he was approached by a man who identified himself as the
victim’s son. The man allegedly offered Gurrieri work performing bulk
trash cleanup at the victim’s warehouse. Gurrieri testified that he did not
find the request unusual or suspicious, and agreed to perform the work. He
told the man he would start work on April 10, 2013, and wrote down the
man’s name and phone number.

¶9 Because the job was quite substantial, Gurrieri asked his
friend, Veronica, to find some additional workers to help him. At 7:00 a.m.
on April 10, 2013, Gurrieri arrived in his van at the victim’s property and
found the warehouse unlocked. Although the victim’s son was not there,
Gurrieri testified he did not think this was suspicious, and he began
removing junk metal from the warehouse. After Gurrieri had worked for
approximately six hours, Luciow, McKeever, and Walker arrived in a truck.
Gurrieri immediately noticed that Luciow was quite ill and unable to
perform any work. The other men were able-bodied, but Gurrieri testified
that neither of them entered the warehouse or otherwise helped him.

¶10 Within an hour of their arrival, Luciow, McKeever and
Walker left. After Gurrieri saw the other men drive away, he began closing
the warehouse; shortly thereafter, an officer approached and arrested him.
Gurrieri testified that during his questioning by the police, he learned for
the first time that he did not have permission to be on the victim’s property.

2 Before trial, the State moved to dismiss the criminal damage charge
against all defendants, which the trial court granted.

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¶11 During the State’s rebuttal, the victim’s son testified that he
was not in Arizona in April 2013. He also testified that he does not know
Gurrieri and never gave anyone permission to enter his father’s warehouse.

¶12 The jury found Gurrieri guilty of burglary in the third degree
and not guilty of possession of burglary tools. The jury acquitted the other
defendants of all charges. The trial court sentenced Gurrieri to a three-year
term of probation. Gurrieri timely appealed.

DISCUSSION

I. Motion to Sever

¶13 Before trial, Gurrieri moved to sever his trial from his co-
defendants. Following an evidentiary hearing, the court denied the motion.
The court also denied Gurrieri’s renewal of the motion during trial.

¶14 We review a trial court’s denial of a motion to sever for an
abuse of discretion. State v. Prince, 204 Ariz. 156, 159, ¶ 13 (2003). Pursuant
to Arizona Rules of Criminal Procedure (“Rule”) 13.3(b), joinder of two or
more defendants is permissible “when each defendant is charged with each
offense included, or when the several offenses are part of a common
conspiracy, scheme or plan or are otherwise so closely connected that it
would be difficult to separate proof of one from proof of the others.”

¶15 Joinder was proper in this case. All of the defendants were
charged with the same offenses. In addition, there was substantial
overlapping evidence implicating each of the defendants. The arresting
officer observed all of the defendants “moving about” on the victim’s
property, and police recovered the victim’s property from both Gurrieri’s
van and the truck. Likewise, the victim and his son testified that they did
not give permission to defendant or any of the co-defendants to enter the
property.

¶16 We also reject Gurrieri’s argument that severance was
required in this case. Because “joint trials are the rule rather than the
exception,” State v. Murray, 184 Ariz. 9, 25 (1995), when defendants are
properly joined under Rule 13.3(b), severance is required only if “necessary
to promote a fair determination of the guilt or innocence of any
defendant[.]” Ariz. R. Crim. P. 13.4(a). To succeed in challenging a denial
of severance, a defendant “must demonstrate compelling prejudice against
which the trial court was unable to protect.” Murray, 184 Ariz. at 25
(internal citation omitted). Such prejudice occurs when: (1) evidence
admitted against one defendant is facially incriminating to another

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defendant; (2) evidence admitted against one defendant has a harmful rub-
off effect on the other defendant; (3) there is significant disparity in the
amount of evidence introduced against the defendants; or (4) co-defendants
present “antagonistic, mutually exclusive defenses[.]” Id.

¶17 Of these enumerated factors, Gurrieri argues only that the
nature of his co-defendants’ defenses mandated severance. Gurrieri
contends his co-defendants suggested he may have lied to them about
having permission to be on the property, which undermined his claim that
he reasonably believed he was authorized to perform work at the
warehouse.

¶18 “[T]he mere presence of hostility between co-defendants, or
the desire of each co-defendant to avoid conviction by placing the blame on
the other,” does not compel severance. State v. Cruz, 137 Ariz. 541, 544
(1983). Instead, severance is required only when defenses are “antagonistic
to the point of being mutually exclusive,” that is, “only when competing
defenses are so antagonistic at their cores that both cannot be believed.” Id.
at 544-45.

¶19 When Gurrieri testified, the prosecutor confronted him with
statements he made immediately following his arrest, in which he initially
stated Veronica hired him to perform cleanup work at the warehouse, and
then claimed the co-defendants hired him to do the work. During the
State’s rebuttal, McKeever’s attorney referred to these statements and asked
the arresting officer whether it was possible Gurrieri may have also “told
[the co-defendants] things to get them to believe things.” The prosecutor
immediately objected, the court sustained the objection, and defense
counsel ended his cross-examination. We cannot say this isolated,
unanswered question posed by McKeever’s attorney was so antagonistic as
to cause prejudice warranting severance.

¶20 During closing argument, McKeever’s attorney stated that he
did not “know what happened with Mr. Gurrieri,” and argued that even if
the jurors found “an inconsistency with his story,” the evidence presented
at trial demonstrated McKeever had no knowledge that his presence at the
victim’s property was unlawful. Although this argument recognized that
jurors may not find Gurrieri’s conflicting stories credible, neither
McKeever’s attorney nor any of the other defense attorneys argued that
Gurrieri had misled or deceived their clients. Instead, counsel for each co-
defendant argued that his client was merely present and had no knowledge
that Gurrieri lacked permission to be on the property. Counsel also offered

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Gurrieri’s testimony that none of the co-defendants entered the warehouse
or assisted him as exculpatory evidence for their clients.

¶21 Thus, the co-defendants’ mere presence and lack of
knowledge defenses were not overtly antagonistic toward Gurrieri, and did
not defeat his claim that he believed his presence and actions on the victim’s
property were authorized. Instead, the jury could have believed the co-
defendants’ claims of mere presence, lack of knowledge, and reasonable
reliance on Gurrieri’s representations without disbelieving Gurrieri’s claim
that he had permission to be on the property.

¶22 Additionally, the court properly instructed the jurors to
separately consider the evidence against each defendant, and we presume
the jurors followed those instructions. See Murray, 184 Ariz. at 25
(explaining a properly instructed jury “is presumed to have considered the
evidence against each defendant separately”). Therefore, the court did not
abuse its discretion by denying Gurrieri’s motion to sever.

II. Prosecutorial Misconduct

¶23 Gurrieri argues the court erred by denying his motion for
mistrial based on prosecutorial misconduct.

¶24 We review the denial of a motion for mistrial for an abuse of
discretion. State v. Jones, 197 Ariz. 290, 304, ¶ 32 (2000). Because a
“declaration of mistrial is the most dramatic remedy for trial error,” it
should be granted “only when it appears that justice will be thwarted unless
the jury is discharged and a new trial granted.” State v. Adamson, 136 Ariz.
250, 262 (1983).

¶25 To prevail on a claim of prosecutorial misconduct, a
defendant “must demonstrate that the prosecutor’s misconduct so infected
the trial with unfairness as to make the resulting conviction a denial of due
process.” State v. Roque, 213 Ariz. 193, 228, ¶ 152 (2006) (quoting State v.
Hughes, 193 Ariz. 72, 79, ¶ 26 (1998)). “Reversal on the basis of prosecutorial
misconduct requires that the conduct be so pronounced and persistent that
it permeates the entire atmosphere of the trial.” Id.

¶26 Prosecutorial misconduct is not “merely the result of legal
error, negligence, mistake or insignificant impropriety.” Pool v. Superior
Court, 139 Ariz. 98, 108 (1984). 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. at 108-
09.

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A. Vouching

¶27 Gurrieri asserts the prosecutor improperly vouched for the
arresting officer and the State’s case.

¶28 During her opening statements, the prosecutor remarked that
the defendants had the misfortune of burglarizing a property patrolled by
a “diligent, conscientious officer” and stated the men would have
successfully stolen the victim’s property if that “diligent officer” had not
discovered their wrongdoing. Defense counsel objected on the grounds of
vouching, and the court admonished the prosecutor that her opening
statements were “supposed to be non-argument.” Later, during closing
arguments, the prosecutor told the jurors that they had a “simple case” to
decide. Defense counsel again raised a vouching objection, which the court
overruled.

¶29 “There are two types of prosecutorial vouching: (1) when the
prosecutor places the prestige of the government behind its witness, and (2)
where the prosecutor suggests that information not presented to the jury
supports the witness’s testimony.” State v. Duzan, 176 Ariz. 463, 467 (App.
1993) (internal quotation omitted). A prosecutor places the prestige of the
government behind a witness by personally assuring the jury of the
witness’s veracity. See State v. Dumaine, 162 Ariz. 392, 401 (1989), disapproved
on other grounds by State v. King, 225 Ariz. 87 (2010).

¶30 Here, based on the evidence, the prosecutor favorably
characterized the officer’s job performance and investigative approach. She
did not express a personal belief regarding his penchant for truthfulness.
Nor did she suggest that information unknown to the jury supported the
officer’s testimony or the State’s theory of the case. Accordingly, these
statements did not constitute improper vouching.

B. Burden Shifting

¶31 Gurrieri contends the prosecutor impermissibly shifted the
burden of proof to the defense.

¶32 The prosecutor questioned Gurrieri regarding his failure to
provide the police with contact information for both Veronica or the
victim’s son after his arrest. Defense counsel raised a burden shifting
objection, which the court sustained. On recross-examination, the
prosecutor again asked Gurrieri whether he disclosed Veronica’s contact
information “at any time” and Gurrieri answered, without objection, that
he did not. An officer also testified, without objection, that he asked

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Gurrieri to provide contact information for Veronica and the victim’s son,
and Gurrieri failed to do so. During closing argument, the prosecutor
referenced Gurrieri’s failure to provide this information and, following
defense counsel’s objection, the court instructed the prosecutor to confine
her argument “to the evidence that was admitted.”

¶33 A prosecutor may question or comment on a defendant’s
failure to produce evidence to support a defense without shifting the
burden of proof, provided the prosecutor does not “call attention to the
defendant’s own failure to testify.” State v. Fuller, 143 Ariz. 571, 575 (1985);
see also State v. Sarullo, 219 Ariz. 431, 437, ¶ 24 (App. 2008) (“When a
prosecutor comments on a defendant’s failure to present evidence to
support his or her theory of the case, it is neither improper nor shifts the
burden of proof to the defendant so long as such comments are not intended
to direct the jury’s attention to the defendant’s failure to testify.”).

¶34 We find no error. Gurrieri testified that: (1) he had been given
authority to enter the victim’s property by the victim’s son, (2) the victim’s
son had provided him with contact information, and (3) he had given that
contact information to his friend Veronica. As a result, the prosecutor’s
questions and argument addressing Gurrieri’s failure to provide
information supporting these claims to the police was permissible.

C. References to Gurrieri as a “Prisoner” and Bulk Trash Cleanup as
a “Ruse”

¶35 Gurrieri contends the prosecutor engaged in misconduct by
eliciting testimony from the arresting officer characterizing Gurrieri as a
“prisoner,” and then referring to Gurrieri as a “prisoner” herself during a
follow-up question. As noted by the court, at that point in the prosecutor’s
direct examination, the officer had already explained that he had arrested
Gurrieri and was transporting him to the police station for booking. Thus,
the description of Gurrieri’s prisoner status was accurate and the
prosecutor did not engage in misconduct.

¶36 Next, Gurrieri argues the prosecutor engaged in misconduct
by eliciting testimony from the arresting officer that burglars sometimes
“dress up” as workers as part of an elaborate “ruse” to conceal their illegal
activity. This explanation of burglars’ behavior followed testimony that
some of the co-defendants were wearing work vests and hats at the time of
their arrest. As noted by the State, police officers may testify regarding
“techniques and methods used by criminals.” U.S. v. Anderson, 813 F.2d
1450, 1458 (9th Cir. 1987). Therefore, the prosecutor’s question to the

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officer, and subsequent argument claiming the defendants were “hid[ing]
in plain sight,” were not improper.

D. Impugning Defense Counsel

¶37 Gurrieri contends the prosecutor engaged in misconduct by
questioning the integrity of defense counsel at trial.

¶38 During closing argument, the prosecutor argued the co-
defendants knew their presence was unlawful, as evidenced by their
attempt to leave when they spotted the police near the property. The
prosecutor then remarked: “[W]hen the law is on your side, you pound the
law. When the facts are on [your] side, you hammer away at the facts.
When neither, you hammer the table. That’s what they are doing here,
ladies and gentlemen, smok[e and] mirrors.” Defense counsel objected and
moved for a mistrial, which the court denied. The prosecutor then resumed
her argument and repeatedly stated that defense counsel had engaged in
“misdirection” by criticizing the police officers’ investigation, such as their
failure to collect fingerprint or DNA evidence.

¶39 Prosecutors have wide latitude in closing argument, State v.
Hill, 174 Ariz. 313, 322 (1993), but “[j]ury argument that impugns the
integrity or honesty of opposing counsel is [] improper.” Hughes, 193 Ariz.
at 86, ¶ 59. Criticism of defense theories and tactics, on the other hand, “is
a proper subject of closing argument.” State v. Ramos, 235 Ariz. 230, 238, ¶
25 (App. 2014) (internal quotations omitted).

¶40 The prosecutor’s comments were not personal attacks on
defense counsel’s integrity, but permissible critiques of defense tactics and
strategy. The argument was not improper.

E. Opinion Testimony Regarding Gurrieri’s Truthfulness

¶41 Gurrieri argues the prosecutor engaged in misconduct by
eliciting testimony from Officer R. about the truthfulness of Gurrieri’s post-
arrest statements.

¶42 When defense counsel cross-examined Officer R., he asked
whether he suggested, during his questioning of Gurrieri, that it was
possible someone had impersonated the victim’s son and “duped” or
“swindled” Gurrieri. Officer R. responded that he “did say those things.”
Defense counsel then asked “yet you didn’t go looking for this person that
may be out there claiming to be [the victim’s son],” and Officer R. replied
“[t]hat is correct.”

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¶43 On redirect the prosecutor asked Officer R. whether he
actually believed Gurrieri had been “duped” by someone impersonating
the victim’s son. Officer R. stated that he suggested this possibility to
Gurrieri as an interrogation technique to extract more information. The
prosecutor then asked Officer R. if he believed Gurrieri was “swindled,”
and the officer testified that he believed Gurrieri had indeed burglarized
the victim’s property. The prosecutor asked Officer R. whether he believed
Gurrieri was honest with him and he stated that he did not believe Gurrieri
had been honest. When the prosecutor asked why the officer did not
believe Gurrieri, defense counsel objected, and the court sustained the
objection.

¶44 Because Gurrieri did not object to the prosecutor’s questions,
other than the final question that was sustained by the court, Gurrieri has
not preserved the issue. Accordingly, we review solely for fundamental
error. State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19-20 (2005).

¶45 Although a witness’s opinions “regarding questions of
truthfulness and guilt are generally inadmissible,” such evidence may be
introduced when the defendant places the witness’s opinions at issue. State
v. Williams, 133 Ariz. 220, 227-28 (1982). Stated differently, when the
defendant “injects improper or irrelevant evidence or argument,” the State
may respond with “evidence on the same subject,” even if such evidence
would be inadmissible otherwise. Pool, 139 Ariz. at 103 (internal quotation
omitted); see also State v. Fish, 222 Ariz. 109, 124, ¶ 48 n.11 (App. 2009). “[I]n
essence the open door . . . doctrine means that a party cannot complain
about a result he caused.” State v. Kemp, 185 Ariz. 52, 60-61 (1996) (internal
quotation omitted).

¶46 Gurrieri opened the door to Officer R.’s statements on redirect
by eliciting testimony suggesting the police intentionally failed to
investigate credible, exculpatory information. See State v. Doerr, 193 Ariz.
56, 63, ¶¶ 25-28 (1998) (holding defense cross-examination “that implied
that the police had improperly failed to look for an assailant,” as identified
by the defendant, “opened the door” to the officer’s testimony on redirect
explaining “why the police did not believe the defendant and did not do
more to pursue another perpetrator”); see also State v. Martinez, 230 Ariz.
382, 385, ¶ 13 (App. 2012) (concluding defense counsel’s suggestion during
opening statements that a police officer was “less than diligent in his
investigation” opened the door to the officer’s subsequent testimony
“explaining why he did not believe the defendant and did not do more to
pursue” the defendant’s story). Therefore, the court did not err, much less

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commit fundamental error, by allowing the prosecutor to ask Officer R.
whether he found Gurrieri’s story credible.

¶47 Because Gurrieri has not demonstrated any instance of
prosecutorial misconduct, “there can be no cumulative effect of misconduct
sufficient to permeate the entire atmosphere of the trial with unfairness.”
See State v. Bocharski, 218 Ariz. 476, 492, ¶ 75 (2008). Accordingly, the court
did not abuse its discretion by denying Gurrieri’s motion for mistrial.

III. Denial of Motion for Directed Verdict

¶48 Gurrieri contends the court erred by denying his motion for a
judgment of acquittal. Ariz. R. Crim. P. 20.

¶49 We review de novo a trial court’s ruling on a Rule 20 motion.
State v. West, 226 Ariz. 559, 562, ¶ 15 (2011). “[T]he relevant question is
whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. at ¶ 16 (internal
quotation omitted). Sufficient evidence upon which a reasonable jury can
convict may be direct or circumstantial and “is such proof that reasonable
persons could accept as adequate” to “support a conclusion of defendant’s
guilt beyond a reasonable doubt.” State v. Borquez, 232 Ariz. 484, 487, ¶¶ 9,
11 (App. 2013). A judgment of acquittal is appropriate only when “there is
no substantial evidence to warrant a conviction.” Ariz. R. Crim. P. 20(a).
Additionally, a defendant who presents a defense following the denial of a
Rule 20 motion “waives any error if his case supplies evidence missing in
the state’s case.” State v. Bolton, 182 Ariz. 290, 308 (1995). In such
circumstances, we consider all the evidence presented at trial. Id.

¶50 A person commits burglary in the third degree by “[e]ntering
or remaining unlawfully in or on a nonresidential structure or in a fenced
commercial or residential yard with the intent to commit any theft or any
felony therein.” Ariz. Rev. Stat. (“A.R.S.”) § 13-1506(A)(1) (2010). A person
enters or remains unlawfully by “enter[ing] or remain[ing] on premises
when the person’s intent for so entering or remaining is not licensed,
authorized or otherwise privileged[.]” A.R.S. § 13-1501(2) (2010).

¶51 Here, the evidence shows the victim did not authorize anyone
to enter or remain in his warehouse; rather, the property was secured with
padlocks and chains. Nonetheless, while conducting routine patrol, an
officer observed Gurrieri repeatedly enter the warehouse and then exit
carrying large items that he placed in his vehicle. In response to the officer’s
questions, Gurrieri explained that he had permission to enter the

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warehouse and remove the victim’s property. When pressed, however,
Gurrieri repeatedly changed his story, initially claiming Veronica hired
him, then stating the co-defendants hired him, and finally asserting the
victim’s son had hired him.

¶52 At trial, Gurrieri did not contest that he had entered and
remained in the warehouse without the victim’s permission. He also did
not dispute that he had removed the victim’s property and placed it in his
vehicle. Instead, his entire defense was premised on his belief that his
presence and conduct were authorized, and he therefore lacked the
requisite intent to commit burglary. However, based on Gurrieri’s
contradictory statements, it was reasonable for the jury to reject his claim.

¶53 Given these facts, the court did not err by denying Gurrieri’s
Rule 20 motion.

CONCLUSION

¶54 For the foregoing reasons, Gurrieri’s conviction and sentence
are affirmed.

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

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