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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
DOLORES MEZA ZAVALA,
Appellant.
No. 1 CA-CR 20-0445
FILED 6-17-2021
Appeal from the Superior Court in Yuma County
No. S1400CR201801355
The Honorable Roger A. Nelson, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Michelle L. Hogan
Counsel for Appellee
Yuma County Public Defender’s Office, Yuma
By Robert J. Trebilcock
Counsel for Appellant
STATE v. ZAVALA
Decision of the Court
MEMORANDUM DECISION
Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge David B. Gass and Judge Michael J. Brown joined.
W E I N Z W E I G, Judge:
¶1 Dolores Zavala appeals his convictions and sentences on one
count of attempted first-degree murder and two counts of aggravated
assault. Finding no reversible error, we affirm.
FACTS AND PROCEDURAL BACKGROUND1
¶2 One morning in November 2018, Zavala visited his girlfriend
Kari at her apartment to eat breakfast and smoke methamphetamine. A
shouting match erupted between Zavala and Kari over accusations of
infidelity. A third person, Jennifer, was sleeping in Kari’s bedroom until
awoken by the fight. Kari burst into the bedroom, warning Jennifer to
leave. Jennifer watched as Zavala appeared from behind Kari, wrapping
his arms around her neck as she begged: “Not here. She doesn’t need to see
this.”
¶3 Jennifer escaped the apartment and ran for help. A neighbor
who heard the commotion, named Tacy, then opened Kari’s apartment
door, where she saw Zavala swinging a chain at Kari. That neighbor left,
but Jennifer returned with Herman, another neighbor, who barreled
through the front door to find Kari on the floor, bloodied and bruised.
Zavala laughed aloud and said: “She’s dead. She’s dead already. You’re
too late.” In the ensuing struggle, Herman slashed Zavala’s face with
“something” sharp. Zavala escaped through a back window, bleeding from
his face.
¶4 Yuma police responded to the scene. Kari was bleeding from
various facial wounds and a stab wound on her ribcage. She said that
Zavala attacked her. She was rushed to a local hospital and then
transported to Phoenix with spinal injuries. A surgeon confirmed that
Kari’s neck was broken in three places.
1 We review and thus recount the facts in the light most favorable to
sustaining the jury’s verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).
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STATE v. ZAVALA
Decision of the Court
¶5 A short time later, Yuma police found and detained Zavala,
who was bleeding from a large cut “above his eye across his nose and down
across his face.” Police removed a screwdriver and pocketknife from
Zavala’s person. Zavala asked for a lawyer and was transported to the
same hospital as Kari. The State indicted Zavala on attempted first-degree
murder (count 1) and two counts of aggravated assault (counts 2 and 3).
¶6 Several witnesses testified at the three-day jury trial,
including Kari, Zavala, Jennifer, Tacy, Herman, two police officers and
Kari’s surgeon. The jury convicted Zavala on all counts. The court
sentenced him to concurrent prison terms of 15.75 years (count 1), 11.25
years (count 2), and 11.25 years (count 3). Zavala appealed. We have
jurisdiction. See A.R.S. §§ 12-120.21(A)(1), 13-4031, -4033(A)(1).
DISCUSSION
¶7 Zavala presses two evidentiary errors on appeal. Because
defense counsel did not raise either objection at trial, Zavala must show
fundamental, prejudicial error. State v. Escalante, 245 Ariz. 135, 140, ¶ 12
(2018).
I. Impeachment
¶8 Zavala first argues the superior court erroneously required
his attorney to sanitize Herman’s prior felony convictions before they could
be used to impeach Herman at trial. Arizona Rule of Evidence 609 provides
that a non-defendant witness may be impeached with prior felony
convictions over the past ten years if the felonies involved “a dishonest act
or false statement” or are admissible under Rule 403. Ariz. R. Evid.
609(a)(1)(A), (a)(2).
¶9 Zavala shows no error. Herman’s offenses did not involve
dishonesty or false statements. Ariz. R. Evid. 609(a)(2). Nor does the
probative value of the felony convictions “substantially outweigh[]” any
unfair prejudice. Ariz. R. Evid. 403. The superior court was “best
position[ed] to balance the probative value of challenged evidence against
its potential for unfair prejudice.” State v. Harrison, 195 Ariz. 28, 33, ¶ 21
(App. 1998), aff’d, 195 Ariz. 1 (1999). And Arizona courts have long
“approved of sanitization as a means of limiting prejudicial effect.” State v.
Montano, 204 Ariz. 413, 426, ¶ 66 (2003).
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STATE v. ZAVALA
Decision of the Court
II. Due Process
¶10 Zavala next argues the State impermissibly commented on his
post-arrest request for counsel and silence, thus violating his due process
rights. We review for fundamental error because Zavala did not object at
trial. See Escalante, 245 Ariz. at 140, ¶ 12. Zavala must show the alleged
error is both fundamental and prejudicial. Id. at 142, ¶ 21.
¶11 Zavala points to three statements elicited at trial from two
Yuma police officers. Officer Powell went first, recounting how she
responded to Kari’s apartment and accompanied her to the hospital. The
prosecutor asked Officer Powell if she saw Zavala at the hospital, which led
to the following colloque:
Officer Powell: Yes.
Prosecutor: All right. Please tell us about that.
Officer Powell: Officer Lee arrived shortly on scene after I
had already been on scene with Kari []. I
was in ER room Number 44, and Officer
Lee arrived on scene with Zavala in room
Number 41.
Prosecutor: Okay.
Officer Powell: I entered room Number 41. I had not yet
contacted Zavala, and I asked Officer Lee
if Zavala had said anything on scene
because I had not made contact with him
yet, and Officer Lee told me he did not.
Prosecutor: Okay.
Officer Powell: That he requested—he requested a lawyer.
Prosecutor: Okay.
¶12 Officer Longoria testified next. She described how she found
Zavala near the apartment. During a narrative answer to what happened
next, Officer Longoria said she overheard Zavala ask for a lawyer:
Officer Longoria: So I hear him tell Officer Lee that “I want
a lawyer,” and no other further--no other
questions were asked at that time.
¶13 Just minutes later, the prosecutor returned to the subject of
Zavala’s silence:
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STATE v. ZAVALA
Decision of the Court
Prosecutor: While you were at [the hospital] did you
have an opportunity to talk to the
defendant at any point?
Officer Longoria: No. Never spoke to him.
Prosecutor: All right. And did he make any statements
to you either there or anywhere else?
Officer Longoria: We asked what--you know, what
happened, and he lawyered up, so we didn’t
speak to him anymore. I didn’t.
A. Fundamental error
¶14 The State twice stumbled into unconstitutional terrain yet
returned a third time, volitionally, when the prosecutor asked Officer
Longoria whether Zavala made “any statements to” her at the hospital “or
anywhere else.” At that point, the prosecutor knew the answer to this
question—that Zavala exercised his constitutional rights to remain silent
and seek counsel—having just elicited testimony from Officer Powell and
Officer Longoria to that effect.
¶15 This violated Zavala’s due process rights. A prosecutor
violates due process by implying guilt from a defendant’s post-arrest
silence or request for counsel. Doyle v. Ohio, 426 U.S. 610, 618 (1976)
(silence); State v. VanWinkle, 229 Ariz. 233, 237, ¶ 15 (2012) (attorney
request). “[T]o be impermissible, the prosecutor’s comments must be
calculated to direct the jurors’ attention to the defendant’s exercise of his
fifth amendment privilege.” State v. McCutcheon, 159 Ariz. 44, 45 (1988).
Under these circumstances—including the prosecutor’s role, the number of
comments and their closeness in time—the testimony of Officers Powell
and Longoria emphasized Zavala’s silence and request for counsel, raising
a tacit inference of guilt and depriving Zavala of his constitutional right to
remain silent and seek counsel without penalty. Doyle, 426 U.S. at 618. That
was fundamental error. See Escalante, 245 Ariz. at 141, ¶19 (depriving
defendant of a constitutional right is fundamental error); State v. Anderson,
110 Ariz. 238, 241 (1973) (raising an inference of guilt from silence or request
for an attorney is fundamental error).
B. Prejudice
¶16 But Zavala must also show prejudice, which carries a sizable
burden of proof that “a reasonable jury could have plausibly and
intelligently returned a different verdict” if the improper comments had not
been uttered. Escalante, 245 Ariz. at 144, ¶ 31. On this, Zavala fails. The
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STATE v. ZAVALA
Decision of the Court
jury heard evidence from Jennifer, Kari, Herman and Tacy. Kari testified
that Zavala assaulted her and broke her neck. Jennifer testified about how
she saw Zavala wrap his hands around Kari’s neck from behind. Herman
testified that he found Zavala laughing as Zavala stood above Kari’s
bloodied body. And Tacy described how she saw Zavala swinging a chain
at Kari. Because the jury could not have “plausibly and intelligently”
reached a not-guilty verdict, with or without the error, we affirm. Id.
CONCLUSION
¶17 Affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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