Case Information
*1 FILED BY CLERK JUN 29 2012 IN THE COURT OF APPEALS COURT OF APPEALS STATE OF ARIZONA DIVISION TWO DIVISION TWO
THE STATE OF ARIZONA, ) 2 CA-CR 2011-0277
) DEPARTMENT B Appellee, )
) O P I N I O N v. )
)
FRANCISCO ANTONIO LOPEZ, )
)
Appellant. )
) APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY Cause No. CR201000990
Honorable James L. Conlogue, Judge AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Joseph T. Maziarz,
and Joseph L. Parkhurst Tucson
Attorneys for Appellee Harriette P. Levitt Tucson
Attorney for Appellant
K E L L Y, Judge. Following a jury trial, appellant Francisco Lopez was convicted of
attempted first-degree murder, five counts of aggravated assault, two counts of disorderly conduct, misconduct involving weapons as a prohibited possessor, and attempting to influence a witness. The trial court sentenced him to combined concurrent and *2 consecutive prison terms totaling 52.5 years. On appeal, he argues there was insufficient evidence to support six of his convictions. He further asserts his constitutional right to a fair trial was denied due to prosecutorial misconduct. For the reasons that follow, we affirm.
Background
“We view the facts in the light most favorable to sustaining the
convictions.”
State v. Robles
,
Discussion
Sufficiency of the Evidence Lopez first argues there was insufficient evidence to support his convictions
on counts three through seven (attempted first-degree murder and four counts of
aggravated assault) and count fourteen (attempting to influence a witness). In reviewing
a claim of insufficient evidence, we examine the sufficiency of the evidence presented to
*3
determine whether substantial evidence supports the jury’s verdicts.
State v. Stroud
, 209
Ariz. 410, ¶ 6,
Counts Three Through Seven
With respect to the convictions for attempted first-degree murder and aggravated assault of D., Lopez argues the state failed to present sufficient evidence for the jury to have found beyond a reasonable doubt that he did not act in self-defense. See A.R.S. § 13-205 (requiring state to prove beyond reasonable doubt defendant’s actions not justified). He asserts his “use of force was . . . justified in light of [D.]’s history of violence and his present aggressive behavior” and that “[t]he evidence is clear . . . that there was mutual combat between [Lopez] and [D.]” Lopez did not testify, and his sole witness presented no evidence that Lopez
had acted with justification. In cross-examining the state’s witnesses, however, Lopez attempted to elicit testimony in support of his self-defense theory. And the trial court thereafter instructed the jury as to self-defense.
¶6 But the state presented substantial evidence that contradicted Lopez’s justification theory. There was testimony that Lopez went to D.’s house intending to kill him. D. testified that, after he took shelter under the truck to avoid being shot, Lopez “dropped to his knees” and tried to shoot D. under the truck. And, a retired law enforcement officer who witnessed the events testified that Lopez had fired shots that appeared to be intended to hit D., rather than just warn him. Because the state presented substantial evidence from which the jury could
find beyond a reasonable doubt that Lopez’s conduct was not justified, the record does
not reflect “‘a complete absence of probative facts to support [the jury’s] conclusion’”
that he was guilty of attempting to murder D.
Carlisle
, 198 Ariz. 203, ¶ 11, 8 P.3d at
394,
quoting Mauro
,
Count Fourteen
Lopez maintains there was insufficient evidence to support his conviction
for attempting to influence a witness because, at the time he contacted T., she had not yet
been identified as a witness.
[1]
A person commits the crime of influencing a witness if,
inter alia, he confers “any benefit upon a witness in any official proceeding or a person he
*5
believes may be called as a witness” with the intent to influence the witness’s testimony.
A.R.S. § 13-2802(A). The purpose of the law is to “prevent the corrupt interference with
the administration of justice”; therefore, the legislature criminalized “any attempt to . . .
influence prospective witnesses [such] that the truth will not be presented in anticipated
litigation.”
State v. Ferraro
,
and “become a loving husband” in exchange for her “stick[ing] to the story” they had discussed. His clear goal in so doing was to influence her future statements about the events leading up to the charges brought against them. This is precisely the kind of conduct the legislature intended to prohibit. See id . T. was an eyewitness to, and indeed a participant in, the crimes with which she and Lopez were charged. Thus, at a minimum, Lopez had to know the state would contact T. and seek her account of the incident. And the clear intent of his letter was to prevent a true account being presented to authorities and the court. Therefore, because Lopez knew T. was a prospective witness, substantial evidence supports the jury’s verdict finding Lopez guilty of attempting to influence a witness. [2]
*6 Prosecutorial Misconduct Lopez next claims the prosecutor committed misconduct by commenting on
his right to remain silent. Lopez did not object to this alleged misconduct at trial, and he
therefore has forfeited review absent fundamental, prejudicial error.
See State v.
Henderson
,
negligence, mistake, or insignificant impropriety, but, taken as a whole, amounts to
intentional conduct which the prosecutor knows to be improper and prejudicial . . . .’”
State v. Aguilar
,
Ariz. 296, 304-05, 674 P.2d 850, 858-59 (App. 1983) (holding “oral pronouncement of sentence controls” over sentencing minute entry). During direct examination, the prosecutor asked a police officer whether
Lopez, in the approximately three-week period between the crimes and his arrest, had “ever turn[ed] himself in to cooperate with the police and give his side of the story for the events.” [3] The officer responded, “No, he did not.” Lopez asserts the prosecutor’s question constituted misconduct because it was an “impermissible comment on his right to remain silent.” The Fifth Amendment to the United States Constitution provides that no
person “shall be compelled in any criminal case to be a witness against himself.” U.S.
Const. amend. V. Although the United States Supreme Court has held that the
government may comment on a defendant’s pre-arrest silence for impeachment purposes,
it has not resolved the issue of whether, when a defendant does not testify, the state’s use
of the defendant’s pre-arrest silence as substantive evidence of guilt violates the Fifth
Amendment.
See Jenkins v. Anderson
,
Circuits, have held that pre-arrest, pre-
Miranda
silence is not admissible as substantive
evidence of guilt.
See Combs v. Coyle
,
opposite view, that a defendant’s pre-arrest, pre-
Miranda
silence is admissible as
substantive evidence of guilt.
See United States v. Oplinger
, 150 F.3d 1061, 1066-67
(9th Cir. 1998),
overruled on other grounds by United States v. Contreras
,
The fact that a citizen has a constitutional right to remain silent when he is questioned has no bearing on the probative significance of his silence before he has any contact with the police. . . . When a citizen is under no official compulsion whatever, either to speak or to remain silent, I see no reason why his voluntary decision to do one or the other should raise any issue under the Fifth Amendment. For in determining whether the privilege is applicable, the question is whether petitioner was in a position to have his testimony compelled and then asserted his privilege, not simply whether he was silent. A different view ignores the clear words of the Fifth Amendment.
Jenkins
,
and agree that, when a defendant’s silence is not the result of state action, the protections
of the Fifth Amendment do not prohibit the state’s comment on that defendant’s
*10
pre-arrest, pre-
Miranda
silence.
See Oplinger
, 150 F.3d at 1067;
Zanabria
, 74 F.3d at
593;
Rivera
,
silence, which did not occur in the context of any state action compelling him to speak.
Indeed, during the period referred to by the question, Lopez had not yet had any contact
with law enforcement in relation to these offenses. Therefore, Lopez’s silence is not
protected by the Fifth Amendment, and the prosecutor’s question was not improper.
See
Oplinger
, 150 F.3d at 1067 (“The [Fifth Amendment’s] self-incrimination clause was
intended as a ‘limitation on the investigative techniques of government, not as an
individual right against the world.’”),
quoting United States v. Gecas
, 120 F.3d 1419,
1456 (11th Cir. 1997). Accordingly, we find no error, much less fundamental, prejudicial
error.
See Henderson
,
Disposition Lopez’s convictions and sentences are affirmed.
/s/ Virginia C. Kelly VIRGINIA C. KELLY, Judge CONCURRING:
/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge
/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge
Notes
[1] To the extent Lopez attempts to argue the indictment was flawed for lack of specificity, that issue is waived for lack of argument. See Ariz. R. Crim. P. 31.13(c)(1)(vi); State v. Bolton , 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) (issue waived when argument insufficient to permit appellate review).
[2] Our review of the record reveals a discrepancy in the oral pronouncement of
sentence and the sentencing minute entry. The sentencing minute entry indicates Lopez
was convicted of influencing a witness, a class five felony, rather than attempted
influencing a witness, a class six felony. However, the transcript of the sentencing
hearing correctly reflects the verdict of “guilty of attempted influencing a witness,” a
class six felony. When we can ascertain the trial court’s intent from the record, we need
not remand for clarification.
See State v. Bowles
,
[3] Prior to the question being asked, Lopez had cross-examined witnesses and attempted to elicit testimony suggesting he had acted in self-defense.
[4]
Miranda v. Arizona
,