State v. Castillo

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ARNOLDO CASTILLO, Appellant.

No. 1 CA-CR 20-0029
FILED 12-15-2020

Appeal from the Superior Court in Maricopa County
No. CR2019-005021-001
The Honorable Laura Johnson Giaquinto, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joshua C. Smith
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Kevin D. Heade
Counsel for Appellant
 STATE v. CASTILLO
Decision of the Court

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge James B. Morse Jr. and Judge Maria Elena Cruz joined.

M c M U R D I E, Judge:

¶1 Arnoldo Castillo appeals his convictions and sentences for
two counts of aggravated driving under the influence (“DUI”). He argues
the prosecutor erred1 in a manner that affected the verdicts. He further
contends the superior court erred by admitting law-enforcement testimony
that lacked adequate foundation and by precluding a witness he untimely
disclosed. For the following reasons, we affirm.

FACTS2 AND PROCEDURAL BACKGROUND

¶2 Late on New Year’s Eve in 2014, Richard3 and his wife
traveled southbound on the I-17 freeway when they saw a white vehicle
coming towards them, driving the wrong way. Richard immediately called
9-1-1. As the car passed them, Richard saw that a male was driving.

¶3 Minutes after receiving Richard’s 9-1-1 call, troopers with the
Arizona Department of Public Safety (“DPS”) found the car crashed near a
freeway-exit ramp. Castillo, the registered owner of the vehicle, stood next
to the car. At the trial, Richard identified the vehicle as the car he had seen
on New Year’s Eve.

1 Castillo does not argue, and we do not separately find, that any
prosecutorial misconduct committed here also equated to professional or
ethical misconduct by the prosecutor. See In re Martinez, 248 Ariz. 458,
469-70, ¶¶ 42-47 (2020). Therefore, we refer to the claims as prosecutorial
error.

2 We view the evidence in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against Castillo. State v.
Mendoza, 248 Ariz. 6, 11, ¶ 1, n.1 (App. 2019).

3 To protect the witness’s identity, we refer to him by a pseudonym.

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¶4 After noticing that Castillo showed signs and symptoms
consistent with alcohol consumption, Sergeant Jones asked Castillo if he
had been drinking alcohol that night. Castillo answered “yeah” and said he
was a little drunk. Sergeant Jones next asked Castillo whether he knew he
had been driving the wrong way on the freeway, and Castillo responded,
“Yeah. Let’s get this over with. How long will this take?”

¶5 With Castillo’s consent, a trooper performed a horizontal
gaze nystagmus (“HGN”) test. The trooper observed six out of six cues of
HGN, indicating a blood alcohol content (“BAC”) of at least 0.08. Sergeant
Jones arrested Castillo, gave him Miranda4 warnings, and then drove him to
a police station. During the ride, Castillo said to the sergeant, “I made a
mistake. Can I go home now?”

¶6 When they arrived at the station, Castillo agreed to take a
breath test. The first breath sample revealed that Castillo’s BAC at 0.151,
and a second sample showed his BAC at 0.139. Pursuant to a warrant,
troopers took a blood sample from Castillo. Blood testing later found
Castillo’s BAC at 0.156.

¶7 A grand jury indicted Castillo on two counts of aggravated
DUI, class 4 felonies. On Count 1, the State charged him with driving or
being in actual physical control of his car while he was impaired by alcohol
to the slightest degree. Count 2 alleged Castillo’s BAC was 0.08 or more
within two hours of driving or being in actual physical control of the car.
Each count further alleged that Castillo had been convicted of two DUI
offenses within 84 months of the current offense.

¶8 At the trial, Sergeant Jones testified he asked Castillo at the
scene whether he had been driving and recounted Castillo’s response. For
his part, Castillo testified that he had started drinking alcohol on the day of
the accident after working his shift at a restaurant. He testified that his
nephew picked him up from work and drove the vehicle when it crashed.
He said his nephew fled after the crash because he had outstanding “traffic
tickets.” Castillo denied telling Sergeant Jones he was driving but admitted
he never told any troopers his nephew had been driving. Both Castillo and
Castillo’s daughter testified that the nephew died in September 2016.

4 Miranda v. Arizona, 384 U.S. 436 (1966).

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¶9 On cross-examination, Castillo again denied telling Sergeant
Jones that he had been driving. The prosecutor asked Castillo to clarify the
opposing versions of events in the following exchange:

Q. But you didn’t hear Sergeant Jones testify that he asked
you whether or not you knew you were driving the wrong
way on the freeway?

A. He didn’t ask me that.

Q. He didn’t?

A. No.
* * *
Q. So is it your testimony today that Sergeant Jones’
testimony regarding the fact that he asked you about driving
the wrong way on the freeway was either a lie or
misremembered?

A. He didn’t ask me.

Q. So then Sergeant Jones is a liar, then?

A. I couldn’t say, I don’t know.

The prosecutor asked Castillo once more if Sergeant Jones was a “liar.”
Castillo responded, “I don’t know.”

¶10 Later during cross-examination, Castillo acknowledged that
on the ride to the police station, he told Sergeant Jones he had made a
“mistake” and asked if he could “go home.” The prosecutor next asked
Castillo whether he ever told Sergeant Jones, while Jones took him through
all the “intrusive procedures,” “steps,” and “rigamarole” in the DUI
investigation, that he had not been driving. Castillo replied that the
troopers never asked him. On redirect examination, Castillo said he would
have told the troopers more if they had provided him with an interpreter.

¶11 The superior court later asked Castillo two juror questions
about whether the nephew was driving. The first question was, “Did any
of your co-workers see your nephew driving away from the restaurant?”
Castillo answered, “One person, I’m sure about.” The second question was,
“Did anyone besides yourself see your nephew driving the car?” Castillo
responded, “Just that same person—myself and another person.”

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¶12 On recross-examination, the prosecutor asked Castillo for the
name of the person who saw the nephew driving the car. Castillo said the
person was his co-worker, L.M. Castillo explained that L.M. “was the last
one to be there when [the nephew] and me left [the restaurant].” After
Castillo acknowledged he still stayed in touch with L.M., the following
exchange with the prosecutor occurred:

Q. You know [L.M.] well?

A. Yes.

Q. So where is he today?

A. I don’t know if he’s working or if he’s at home.

Q. So he could have come in to testify to all of these things;
right?

A. My attorney didn’t let my daughter bring him in to
testify.

Q. That seems like someone who would be pretty
important for a trial like this, don’t you think?

A. Ask him.

Q. So you’re blaming your attorney for not calling
somebody in today?

A. No.

Q. So then why isn’t that person here? Couldn’t your
family have called him?

A. My attorney didn’t want to. He said something to my
daughter, I don’t know why he couldn’t come.

¶13 Later, on recross-examination, the prosecutor asked Castillo,
“So [the nephew] wasn’t drinking, but he still drove the wrong way,
correct?” Castillo answered that his nephew had not driven the wrong way,
leading to this exchange:

Q. So do you recall hearing testimony from [Richard], the
civilian witness in this case, stating that he saw you driving
the wrong way for at least 200 feet?

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A. Yes, that causes me—I don’t know how to say it—it
gets me angry, gets me upset because that young guy just—I
can say that he is a liar.

Q. But so my witness is a liar?

A. That one, yeah.

¶14 The next day, Castillo’s counsel moved to call L.M. to testify.
Defense counsel explained L.M. would testify that either (1) Castillo had
asked L.M. for a ride that night or (2) L.M. “overheard [Castillo] say that
[the nephew] was going to pick him up.” Defense counsel acknowledged
that L.M. would not testify that he saw the nephew picking Castillo up from
work or driving the vehicle. Castillo’s counsel informed the court that he
had been “notified about [L.M.]” and his anticipated testimony before trial.
Still, he had not disclosed L.M. as a witness because his testimony would
constitute inadmissible hearsay. Defense counsel explained that he now
wanted to call L.M. as a witness to rebut the State’s attempt to challenge
Castillo’s credibility.

¶15 The State objected, citing Castillo’s untimely disclosure as a
ground for preclusion. The superior court found Castillo’s untimely
disclosure of L.M. violated Rule 15 of the Arizona Rules of Criminal
Procedure and excluded the witness under Rule 15.7(c)(1).

¶16 The jury convicted Castillo as charged. The superior court
sentenced him as a category-three repetitive offender to concurrent terms
of 10 years’ imprisonment. Castillo appealed, and we have jurisdiction
under Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

A. Castillo Has Not Established That His Convictions Should Be
Reversed for Prosecutorial Error.

¶17 Castillo cites three instances of alleged prosecutorial error
when the prosecutor cross-examined him. First, Castillo contends the
prosecutor violated due process by commenting on his post-Miranda silence
to show evidence of guilt. Second, Castillo argues the prosecutor’s
questions unconstitutionally shifted the burden of proof. Third, Castillo
complains that the prosecutor improperly asked him whether the State’s
witnesses were lying. Finally, Castillo argues the cumulative effect of the
separate errors deprived him of a fair trial.

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¶18 Because Castillo did not object to any of the cited instances,
he has forfeited appellate relief absent fundamental error resulting in
prejudice. See State v. Escalante, 245 Ariz. 135, 140, 142, ¶¶ 12, 21 (2018). To
establish fundamental error, a defendant must first prove the superior court
erred and then show that such error (1) went to the foundation of the case,
(2) took away a right essential to the defense, or (3) was so egregious that
the defendant could not possibly have received a fair trial. Id. “If the
defendant establishes fundamental error under prongs one or two, he must
make a separate showing of prejudice[.]” Id. at 142, ¶ 21.

¶19 To prevail on a claim of prosecutorial error, a defendant must
show an error and that it was reasonably likely to have affected the jury’s
verdict and thereby deny the defendant a fair trial. State v. Moody, 208 Ariz.
424, 459, ¶ 145 (2004). “The defendant must show that the offending
statements were so pronounced and persistent that they permeate[d] the
entire atmosphere of the trial and so infected the trial with unfairness as to
make the resulting conviction a denial of due process.” State v. Gallardo, 225
Ariz. 560, 568, ¶ 34 (2010) (alteration in original) (quotations omitted).

There Was Not a Due-Process Violation Regarding the
Admission of Post-Miranda Silence.

¶20 A prosecutor violates due process by using a defendant’s
post-Miranda silence as substantive evidence of guilt or impeaching the
defendant. State v. VanWinkle, 229 Ariz. 233, 237, ¶ 15 (2012). The privilege
against self-incrimination is not self-executing, meaning a person “who
desires its protection must claim it.” Salinas v. Texas, 570 U.S. 178, 181 (2013)
(quotations omitted). A defendant who voluntarily speaks after being
instructed of his or her Miranda rights has not remained silent. Anderson v.
Charles, 447 U.S. 404, 408 (1980). “If a defendant tells different stories during
post-arrest questioning and at trial, the prosecution may properly inquire
into the prior inconsistent statements, even though the prior statements
involve ‘silence’ insofar as they omit facts contained in the later story.” State
v. Guerra, 161 Ariz. 289, 296 (1989).

¶21 Here, Castillo does not argue, much less establish, that he
invoked his right to remain silent. See State v. Payne, 233 Ariz. 484, 501, ¶ 40
(2013) (“An invocation of the right to silence must be unequivocal and
unambiguous[.]”). To the contrary, Castillo voluntarily spoke to Sergeant
Jones after the sergeant read him his Miranda rights and told the sergeant
that he made a mistake and wanted to return home. Because Castillo made
a post-Miranda statement that amounted to, at minimum, a partial
admission of guilt, the prosecutor was allowed to ask him during the trial

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why he did not also tell the troopers about the exculpatory information he
recounted on direct examination. See State v. Tuzon, 118 Ariz. 205, 207 (1978)
(“When one who has voluntarily made statements to police officers after
his arrest makes new exculpatory statements at trial, the fact that he failed
to make these statements earlier may be used for impeachment.”).

¶22 Furthermore, the prosecutor never urged the jurors to find
Castillo guilty based on his purported silence. Instead, the prosecutor
repeatedly cited Castillo’s post-Miranda statement as an admission of guilt.
The prosecutor further argued the jurors should consider Castillo’s
inculpatory statements to the police, both before and after Miranda, to assess
Castillo’s credibility of the account he provided for the first time at the trial.
Moreover, even without the prosecutor’s questions or argument, the jurors
knew from Castillo’s testimony that he did not tell the police that his
nephew had been driving. Accordingly, because Castillo did not invoke his
right to remain silent and because the prosecutor’s comments were not
impermissibly directed toward Castillo’s exercise of such a right, there was
no prosecutorial error.5

The Prosecutor Did Not Engage in Burden-Shifting.

¶23 Next, Castillo argues the prosecutor unconstitutionally
shifted the burden of proof by asking him why he had not called L.M. as a
witness. “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.” State v. Sarullo, 219 Ariz. 431, 437, ¶ 24 (App. 2008). “Even where
the defendant does not take the stand . . . [s]uch comment is permitted by
the well recognized principle that the nonproduction of evidence may give
rise to the inference that it would have been adverse to the party who could

5 Contrary to Castillo’s argument on appeal, he has the burden under
fundamental-error review to establish prejudice in a “fact-intensive
inquiry.” See Escalante, 245 Ariz. at 140, 142, ¶¶ 12, 21. Because Castillo fails
to argue, let alone demonstrate, he suffered prejudice from the claimed
error, he has waived that argument. See In re Aubuchon, 233 Ariz. 62, 64–65,
¶ 6 (2013) (“[W]e consider waived those arguments not supported by
adequate explanation, citations to the record, or authority.”). Thus, even
assuming error occurred, Castillo does not meet his burden to prove
prejudice.

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have produced it.” State ex rel. McDougall v. Corcoran, 153 Ariz. 157, 160
(1987).

¶24 Here, because Castillo testified, the prosecutor’s inquiry
could not direct the jurors’ attention to his failure to take the stand. See
Sarullo, 219 Ariz. at 437, ¶ 24. Also, Castillo failed to object to the jurors’
questions regarding the existence of any additional witnesses who could
corroborate Castillo’s testimony that the nephew drove him from the
restaurant. Therefore, the prosecutor did not violate due process by asking
Castillo why he did not call L.M. to corroborate his testimony that the
nephew drove the vehicle. See id.

¶25 We also find no merit in Castillo’s contention that the
prosecutor’s questioning implicitly invited the jurors to speculate about
confidential attorney-client communications. In response to cross-
examination about his failure to call L.M. to testify, Castillo voluntarily
offered that his attorney prevented him from doing so. The prosecutor’s
brief question to Castillo’s unprompted response asking whether Castillo
“blamed” his attorney neither suggested to the jurors that they should fault
defense counsel nor accused defense counsel of improper conduct. See supra
¶ 12. Instead, the questions were directed toward challenging Castillo’s
credibility and his newly disclosed revelation that he was in close contact
with a person who purportedly had exculpatory information. Therefore,
there was no prosecutorial error.

The Questions Of “Were They Lying” Were Not Improper
Under the Circumstances.

¶26 Castillo further asserts the prosecutor’s “were they lying”
questions constituted prosecutorial error requiring reversal. “Were they
lying” questions are not categorically prohibited, but parties nonetheless
should “refrain from asking such questions.” State v. Morales, 198 Ariz. 372,
375, ¶ 13 (App. 2000).6 “[S]uch questions may be appropriate when the only
possible explanation for the inconsistent testimony is deceit or lying or
when a defendant has opened the door by testifying about the veracity of
other witnesses on direct examination.” Id. “‘Were they lying’ questions
alone will rarely amount to fundamental error.” Id. at 376, ¶ 15.

¶27 The prosecutor began his inquiry on the topic by allowing
Castillo to clarify whether he challenged the sergeant’s memory or veracity.

6 We decline Castillo’s invitation to revisit Morales.

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The use of the word “lying” was not so inflammatory in these
circumstances that it would unduly affect the jurors’ assessment of witness
credibility. This is particularly so, given that a reasonable juror could
conclude from Castillo’s testimony alone that he disputed Sergeant Jones’s
account’s truthfulness, even without the prosecutor’s use of the term.

¶28 Likewise, Castillo’s argument that the prosecutor improperly
asked him to opine on Richard’s credibility is unavailing. The prosecutor
did not seek to elicit such testimony from Castillo. Instead, Castillo
volunteered his opinion that Richard was a liar when the prosecutor asked
him merely whether he had heard Richard’s testimony. See supra ¶ 13.
Accordingly, because the prosecutor’s brief cross-examination questions on
the matter highlighted credibility differences the jury could consider, there
was no error.

¶29 We also reject Castillo’s contention that the prosecutor
engaged in impermissible vouching by asking him a series of questions
about whether the State’s witnesses had felony convictions. Rule 609 allows
the jury to consider a witness’s criminal history when assessing credibility.
Prosecutorial vouching occurs either “(1) where the prosecutor places the
prestige of the government behind its witness; (2) where the prosecutor
suggests that information not presented to the jury supports the witness’s
testimony.” State v. Vincent, 159 Ariz. 418, 423 (1989). There was no error.

There Is No Cumulative Effect of Prosecutorial Errors.

¶30 Finally, Castillo argues the cumulative effect of the
prosecutor’s alleged errors denied him a fair trial. Because none of the cited
instances constituted prosecutorial error, no cumulative error occurred. See
State v. Bocharski, 218 Ariz. 476, 492, ¶ 75 (2008) (“Absent any finding of
misconduct, there can be no cumulative effect of misconduct sufficient to
permeate the entire atmosphere of the trial with unfairness.”); State v.
Hughes, 193 Ariz. 72, 79, ¶ 26 (1998) (explaining that alleged prosecutorial
error instances are evaluated for cumulative effect).

B. The Superior Court Did Not Admit Law-Enforcement Testimony That
Lacked Proper Foundation.

¶31 At trial, the prosecutor asked Sergeant Jones, “After speaking
with the other troopers who were involved in this case, as well as the
on-scene witnesses, did you make a determination as to who the driver was
at that point?” Sergeant Jones replied that Castillo was the driver. Later, the
prosecutor asked:

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Q. After speaking with eyewitnesses who had observed
the collision, notating what the other officers had learned
during the investigation, your own personal observations
with the defendant, as well as his statements, did you have
any reason to believe that anyone other than the defendant
was the driver that night?

A. No, I did not.

¶32 Castillo argues the superior court erred by admitting Sergeant
Jones’s testimony that he “determined” Castillo was driving the vehicle at
the accident scene. Castillo does not claim, nor does the record reveal, that
the court admitted any hearsay testimony through Sergeant Jones. Instead,
he contends the foundation for the sergeant’s testimony came solely from
inadmissible hearsay.

¶33 Arizona Rule of Evidence 602 provides: “A witness may
testify to a matter only if evidence is introduced sufficient to support a
finding that the witness has personal knowledge of the matter. Evidence to
prove personal knowledge may consist of the witness’s own testimony.”
Because Castillo failed to raise a foundation objection to the testimony, we
review only for fundamental, prejudicial error. See Escalante, 245 Ariz. at
140, 142, ¶¶ 12, 21.

¶34 Castillo’s argument is unpersuasive because, inter alia,
Castillo admitted to Sergeant Jones he was driving the wrong way on the
freeway. His admission alone gave Sergeant Jones sufficient foundation to
testify he “determined” Castillo was the driver. Furthermore, other items
of non-hearsay evidence corroborated Castillo’s admission. The troopers
saw no one fleeing the scene or otherwise hiding. When troopers first
contacted Castillo, he was standing alone next to the vehicle, and it was
registered to him. Therefore, the superior court did not err by failing to sua
sponte strike the challenged testimony for an insufficient foundation.

¶35 Nor does Castillo show prejudice, given Sergeant Jones’s later
testimony. After the parties had examined Jones, the superior court asked
him a juror question: “During your on-scene investigations, did you
interview anyone who specifically identified or confirmed Mr. Castillo as
the driver of the car that crashed?” Sergeant Jones responded, “No.”
Because the jurors thus learned that none of the witnesses identified Castillo
as the driver, they were left to conclude that Sergeant Jones did not
“determine” Castillo was the driver based on statements from non-
testifying witnesses that he had heard at the scene.

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C. The Superior Court Did Not Err by Precluding L.M.’s Testimony.

¶36 Castillo argues the superior court erred by denying his
untimely request to call L.M. as a witness. As an initial matter, Castillo
concedes his disclosure of L.M. was untimely. See Ariz. R. Crim. P.
15.2(b)(1), (d)(1). He asserts, however, the superior court’s decision to
preclude L.M.’s testimony was too harsh a sanction, a ruling we review for
abuse of discretion. See State v. Rienhardt, 190 Ariz. 579, 586 (1997).

¶37 Arizona Rule of Criminal Procedure 15.7 authorizes the
superior court to impose sanctions, including preclusion, for a discovery
violation. Before excluding evidence as a discovery-violation sanction, a
court must determine if “less stringent sanctions can be used” and must
consider whether (1) the witness is vital to the proponent’s case, (2) the
“opposing party will be surprised and prejudiced” by allowing the
testimony, (3) the proponent was motivated by bad faith or willfulness, and
(4) any other relevant circumstances. State v. Smith, 123 Ariz. 243, 252 (1979);
see Ariz. R. Crim. P. 15.7(c).

¶38 Applying the first Smith factor here, L.M.’s testimony was not
vital because, according to defense counsel’s proffer, L.M. would not have
corroborated Castillo’s testimony. Supra ¶ 14. As defense counsel informed
the court, L.M. did not witness the nephew driving the vehicle and would
instead testify only about statements he heard, all arguably inadmissible
hearsay. Indeed, a reasonable fact-finder could conclude L.M.’s testimony
would damage Castillo’s defense to the extent that it would contradict
Castillo’s assertion that L.M. saw the nephew driving Castillo’s car.

¶39 Under the second Smith factor, nothing in the record shows
the State was aware of L.M. until Castillo mentioned the existence of an
unnamed (and undisclosed) witness when he answered the juror questions.
Supra ¶¶ 11–12, 14. The answer was near the end of the trial, and the
disclosure’s late timing surprised and prejudiced the State, which had
already completed its cross-examination of Castillo and rested. Although
there is no evidence of bad faith, the untimely disclosure was nonetheless
willful under the third factor, given that defense counsel repeatedly
acknowledged he was aware of L.M.’s anticipated testimony before trial
but, citing evidentiary reasons, chose not to disclose him. See id. at ¶ 14; see
also State v. Killean, 185 Ariz. 270, 271 (1996) (explaining preclusion is
appropriate when a party engages in “willful misconduct, such as an
unexplained failure to do what the rules require”).

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¶40 Finally, the superior court expressly considered and rejected
less stringent sanctions, finding that neither a continuance nor a mistrial
offered an appropriate remedy under the circumstances. See Smith, 123
Ariz. at 252. Because the record supports the court’s ruling, we find no
abuse of discretion.

CONCLUSION

¶41 We affirm Castillo’s convictions and sentences.

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

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