STATE OF ARIZONA v. JOSE ALEJANDRO ACUNA VALENZUELA
No. CR-14-0351-AP
SUPREME COURT OF THE STATE OF ARIZONA
Filed September 25, 2018
IN THE
SUPREME COURT OF THE STATE OF ARIZONA
STATE OF ARIZONA,
Appellee,
v.
JOSE ALEJANDRO ACUNA VALENZUELA,
Appellant.
No. CR-14-0351-AP
Filed September 25, 2018
Appeal from the Superior Court in Maricopa County
The Honorable Peter C. Reinstein, Judge
No. CR2011-140108
AFFIRMED
COUNSEL:
Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor
General, Lacey Stover Gard, Chief Counsel, Jeffrey L. Sparks (argued),
Assistant Attorney
for State of Arizona
Bruce Peterson, Office of the Legal Advocate, Kerri L. Chamberlin
(argued), Colin F.
for Jose Alejandro Acuna Valenzuela
VICE CHIEF JUSTICE BRUTINEL authored the opinion of the Court, in
which CHIEF JUSTICE BALES and JUSTICES PELANDER, TIMMER,
BOLICK, and GOULD and JUDGE JONES* joined.
article 6, section 3 of the Arizona Constitution, the Honorable Kenton D.
Jones, Judge of the Arizona Court of Appeals, Division One, was designated
to sit in this matter.
STATE v. ACUNA VALENZUELA
Opinion of the Court
2
VICE CHIEF JUSTICE BRUTINEL, opinion of the Court:
¶1 This automatic appeal arises from Jose Alejandro Acuna
Valenzuela’s (“Acuna”) convictions and death sentence for the murder of
Edgar S. We have jurisdiction under article 6, section 5(3) of the Arizona
Constitution and
¶2 In August 2011, Edgar S. and his girlfriend Perla M. went to a
local Baskin-Robbins to get ice cream. They saw Acuna, who had
previously been Edgar’s friend. In 2008, Edgar had testified against Acuna
during a criminal proceeding in which Acuna was sentenced to prison.
Thereafter, their relationship soured.
¶3 When Acuna saw the couple inside Baskin-Robbins, he
looked at them twice, his eyes widened, and he walked toward an exit door
and yelled at Edgar, “I told you I didn’t want to [expletive] see you.” Once
outside, Acuna saw Sandra P., a friend from high school, who was running
errands in the same shopping complex. Acuna appeared upset while
talking with Sandra, saying (about Perla) that she “told me that she hadn’t
seen him, that she wasn’t talking to him no more,” and she “lied to me,”
and (about Edgar) that “I did prison time for him.” Sandra offered to help
Acuna, reassuring him that she would support him in a fight against Perla.
¶4 After Edgar and Perla left the Baskin-Robbins and got into
Perla’s car, Edgar said, “Baby, he’s coming.” Over her right shoulder, Perla
saw Acuna running and firing a gun at her vehicle. Bullets shattered the car
window and struck Edgar. Edgar tried to get out of the vehicle while Acuna
continued to run behind the car and shoot at Perla. Acuna then left the
scene in Sandra’s car.
¶5 Edgar sustained multiple bullet wounds, and Perla was hit in
her upper back. She survived, ultimately undergoing two surgeries. Edgar
died from his injuries.
¶6 Acuna was convicted after trial of first degree murder,
attempted first degree murder, discharge of a firearm at a structure, and
misconduct involving weapons. The jury found two aggravating
circumstances: (1) that Acuna had been previously convicted for another
serious offense (the attempted first degree murder of Perla); and (2) that he
murdered Edgar in retaliation for testimony in a court proceeding.
STATE v. ACUNA VALENZUELA
Opinion of the Court
3
evidence, the jury decided that Acuna should be sentenced to death for
Edgar’s murder. For the other convictions, the trial court imposed
concurrent prison sentences, the longest for 15.75 years, to be served
consecutively to the death sentence.
DISCUSSION
A. Misconduct-Involving-Weapons Charge
¶7 Acuna contends the trial court erred by failing to sua sponte
sever the misconduct-involving-weapons charge, thus permitting the jury
to hear that he was a convicted felon. Because Acuna did not object at trial,
we review only for fundamental error. See State v. Laird, 186 Ariz. 203, 206
(1996).
¶8 Before trial, the State noticed its intent to present evidence of
Acuna’s previous felony conviction and Edgar’s prior testimony against
Acuna as other-act evidence showing motive. See
v. Ferrero, 229 Ariz. 239 (2012). At trial, the State introduced testimony that
Edgar had “testified in a previous criminal matter against” Acuna, that
Acuna was not legally entitled to possess a firearm because “[h]e was a
prohibited possessor [and h]e had a prior felony conviction,” that the felony
conviction was for a “lesser charge,” and that he had been sentenced to the
Department of Corrections for 2.25 years. A minute entry
trial, as well as a Maricopa County Superior Court affidavit (stating there
was no court record showing that Acuna’s right to possess a firearm had
been restored following his felony conviction), and redacted copies of
Acuna’s prison
¶9 Under the version of
the trial court was authorized, but not required, to order a severance of
offenses
determination of the guilt or innocence of any defendant of any offense.”
change from a discretionary to a mandatory standard. See State v. Smith, 184
Ariz. 456, 460 (1996) (recognizing the adoption of federal retroactivity
Goudeau, 239 Ariz. 421, 466 ¶¶ 196–98 (2016), they were harmless in light of the trial court’s initial instructions noting that opening statements are not evidence and subsequent
2. Witness testimony
Acuna also claims that the prosecutor committed misconduct when she objected to witness testimony on two occasions, once saying “not true,” and once referring to a tape recording of the witness that was not in
In general, it “is highly inappropriate for a prosecutor to convey his or her personal belief about the credibility of a witness.” Martinez, 230 Ariz. at 215 ¶¶ 29–30 (internal quotation marks and alterations omitted) (quoting State v. Lamar, 205 Ariz. 431, 441 ¶ 54 (2003) ) (addressing a prosecutor making facial expressions which “signaled that the State did not believe the evidence [the defendant] was presenting”). Any conflicting evidence is for the jury, as the finder of fact, to resolve. State v. Trotter, 110 Ariz. 61, 64 (1973). And, although “[c]ounsel are given wide latitude in argument, . . . their comments must be based on the evidence or reasonable inferences which may be drawn
The prosecutor’s commenting on the veracity of a witness and referring to evidence outside the record were inappropriate: directly stating a witness’s testimony was “not true” and referring to a tape recording not admitted into evidence called the jury’s attention to improper matters. See id. at 496–97.
But, even with these improper comments, the jury’s verdict must have been improperly influenced by the statements. Id. at 497 (stating that improper remarks on their own do not necessarily indicate prejudice); State v. Mincey, 130 Ariz. 389, 409–10 (1981). These comments occurred following the prosecutor’s thorough impeachment of both witnesses, so they were cumulative, isolated, and therefore harmless. The comments were not “so egregious that [they] permeated the entire trial and probably affected the outcome.” State v. Bolton, 182 Ariz. 290, 308 (1995).
3. Stipulations to jury
Acuna argues that the prosecutor committed misconduct in requesting the stipulations that the trial court read to the jury, which contradicted the testimony of Sylvia Z. and Arianna H., thereby violating the Arizona Constitution and allowing the prosecutor to bolster her arguments that the witnesses had lied. See supra ¶¶ 45–50. We disagree. Just as reading the stipulations were not error, the prosecutor did not engage in misconduct by requesting them.
4. Vouching
Acuna next argues that the prosecutor engaged in several instances of vouching. Two general forms of prosecutorial vouching exist: (1) when “the prosecutor places the prestige of the government behind its witness”; or (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). Placing the prestige of the state behind its witness “involves personal assurances of a witness’s veracity,” while “[t]he second type of vouching involves prosecutorial remarks that bolster a witness’s credibility by reference to matters outside the record.” State v. King, 180 Ariz. 268, 277 (1994) (internal quotation marks omitted) (quoting United States v. Roberts, 618 F.2d 530, 533 (9th Cir. 1980)).
a. “Focus on ‘the real facts’”
During guilt-phase closing arguments, the prosecutor asked the jury to “focus on the real facts from the real events and the real harm defendant [Acuna] caused,” concluding that, “when you focus on the real evidence and the real events and you avoid the distractions, I submit to you that the entirety of the evidence in this case will leave you firmly convinced of the defendant’s guilt.”
The presumption that jurors follow a court’s instructions that lawyers’ statements are not evidence, State v. Newell, 212 Ariz. 389, 403 ¶ 68 (2006), eradicates a slight possibility of any taint from vouching when the state follows up with an appropriate limiting comment, see State v. Payne, 233 Ariz. 484, 512 ¶ 113 (2013), or when the statements are solitary or isolated, see State v. Lamar, 205 Ariz. 431, 441–42 ¶¶ 53–54 (2003), supplemented, 210 Ariz. 571 (2005); State v. Taylor, 109 Ariz. 267, 274 (1973).
Nowhere in this statement did the prosecutor mention that the State provided the jury with “real facts,” and the prosecutor also emphasized in close proximity to this argument that the jurors were the sole determiners of facts, and what the lawyers say is not evidence. This was not impermissible vouching.
In rebuttal during the guilt-phase closing, the prosecutor argued, “[T]he defendant wants you to stop at the manufactured testimony of Griselda and Sylvia, and we ask that you fight a little harder past that. You have been presented with the truth.”5
Acuna did not object to this statement at trial and so we review only for fundamental error. See State v. Laird, 186 Ariz. at 206 (1996).
Although the prosecutor did not argue that the State had provided the jury with the truth, the juxtaposition of “manufactured” defense witness testimony against “the truth” implied that the prosecution was indeed the party that had provided the jury with “the truth.” This was impermissible vouching. See Vincent, 159 Ariz. at 423.
Acuna argues that these comments were “improper advice to the jury on how to decide this case,” and it “impaired the jury’s ability to consider” his defense. But, Griselda and Sylvia were thoroughly impeached on cross-examination, and the isolated nature of this comment, which relies heavily on implication, did not prejudice Acuna.
c. “We know”
Acuna next argues that the prosecutor’s use of “we know” inappropriately related her personal opinion of his guilt and improperly
placed the prestige of the government behind the State’s evidence, particularly when she told the jury, “We know that the defendant had gunshot residue on him not just because he has bad luck, but because he’s the one that used the gun to cause all of this damage,” and that, “We know the defendant attempted to shoot and kill Perla.”
Although these comments from the prosecutor come close to the line, they do not use “I” or “me” to indicate what her personal view of the case was to the jury. Thus, the prosecutor did not impermissibly express her personal opinion to the jury. See, e.g., United States v. Ruiz, 710 F.3d 1077, 1086 (9th Cir. 2013) (stating that it is permissible to use the words “we know” to describe the evidence where prosecutor “did so only to ‘marshal evidence actually admitted at trial and reasonable inferences from the evidence, not to vouch for witness veracity or suggest that evidence not produced would support a witness’s statements’” (quoting United States v. Younger, 398 F.3d 1179, 1191 (9th Cir. 2005)))).
But, like the Ninth Circuit in Younger, 398 F.3d at 1191, we find the use of “we know” on behalf of the government concerning. This is because there is a fine contextual line between the use of “we know” inclusively, i.e., to describe evidence and outline inferences from that evidence with the jury, and the use of “we know” in an exclusive manner, i.e., to refer to the State collectively. A reading of the prosecutor’s closing arguments displays both uses of “we.” The prosecutor’s repeated uses of “we,” particularly with contrasting uses of “you” to refer to the jury, come close to the line here, contrasting with Ruiz, 710 F.3d at 1086 n.5 (“How do we know that . . . ? . . . Officer Peck saw him do it; but it’s not just that. We know Officer Peck was correct because he told the guy on the ground . . . .”); however, we do not find that this pronoun usage, by itself, rises to the level of fundamental, prejudicial error. But we caution prosecutors to refrain from using “we know” and similar phrases to suggest that their argument bears the imprimatur of the state.
d. State’s witnesses
Acuna also argues that the prosecutor vouched with the following statement in her guilt-phase rebuttal closing argument:
And as you know, and as you recognize, of course, there is [sic] going to be differences in people’s memories, their testimony. Because imagine if you heard nothing but a parade of witnesses who said exactly
Specifically, Acuna argues that, by telling the jury that the government’s witnesses did not lie, the prosecutor was “implicitly telling the jury that the State’s witnesses had told the truth,” and that these comments were “improper advice” to the jury on how to decide the case. He cites no authority for these arguments; furthermore, these comments do not use “I” or “me” to indicate what her personal opinion on the case was to the jury, nor did she state that the government’s witnesses were telling the truth. This statement therefore did not constitute vouching.
5. Misstating the law
Acuna next argues that in the following statement, the prosecutor misstated the law and improperly shifted the State’s burden of proof:
As you have learned in this case, evidence does not lie. Because the story that the defendant needs you to believe is that everyone else is wrong except [Sylvia and Griselda]. Not only that everybody is wrong, but somehow they are lying. That this whole case is an amazing series of unfortunate coincidences, that the defendant was never involved in any of this, that every person except for Sylvia and Griselda are lying to you, and they lied about everything. Lied about everything. . . . Because if what the defendant wants you to believe is true, there would be something, some sort of physical evidence that proves only one version of [Sylvia and Griselda’s] relentless lying as true.
Acuna did not object to this statement.
Although “[i]t is . . . improper for a prosecutor to improperly argue the burden of proof,” State v. Schneider, 148 Ariz. 441, 447 (App. 1985) (determining that such issues were cured by the length of the trial and the court’s curative instructions), “[c]omments that are invited and prompted by opposing counsel’s arguments are not improper if they are reasonable and pertinent to the issues raised,” State v. Trostle, 191 Ariz. 4, 16 (1997). A prosecutor may also “make arguments and may draw inferences that are reasonably supported by the evidence.” State v. Burns, 237 Ariz. 1, 31 ¶ 152 (2015).
The Ninth Circuit in Ruiz considered a similar issue, wherein the prosecutor had argued that, in order to find the defendant not guilty, the jury would have to find that officers had lied to the jury. Id. at 1082. In its analysis, the Ninth Circuit stated:
[P]rosecutors have been admonished time and again to avoid statements to the effect that, if the defendant is innocent, government agents must be lying. It is also true, however, that the prosecution must have reasonable latitude to fashion closing arguments. Inherent in this latitude is the freedom to argue reasonable inferences based on the evidence. In a case that essentially reduces to which of two conflicting stories is true, it may be reasonable to infer, and hence to argue, that one of the two sides is lying.
Id. at 1082–83. But, in Ruiz, the court concluded that although the “prosecutor’s argument came very close to altering the burden of proof” where conflicting testimony was somewhat equivocal, the error was harmless because the “prosecutor made his ‘someone must be lying’ argument following a lengthy explanation of the elements that the government was required to prove, and a reminder to the jury of the government’s burden of proof.” Id. at 1084.
Here, defense counsel did argue that some of the State’s witnesses’ accounts were inconsistent, see Schneider, 148 Ariz. at 447, but the prosecutor’s comments extended beyond a fair response to defense statements. That is, the witnesses’ identification testimony conflicted only with other eyewitness testimony—i.e., the testimony of other State witnesses (police officers, forensic analysts, etc.) did not directly controvert their testimony, as they never denied that Edgar and Perla sustained injuries, and defense counsel likewise acknowledged the victims’ injuries. The prosecutor’s conclusion that Acuna “need[ed]” the jury to believe that everyone but the two defense witnesses were lying conflicts with this uncontroverted
But, this statement occurred during her guilt-phase rebuttal closing argument, and proper instructions were provided on multiple occasions. The trial court provided the final jury instructions with the required burden of proof before closing arguments, the prosecutor mentioned the burden on the State near the beginning of her closing argument, the defense discussed the burden on the State in its closing argument, and the prosecutor mentioned it again in her rebuttal closing argument slightly after the offending comment. As such, even if error occurred, the multiple references to the State’s burden of proof by the court, the defense, and the prosecutor herself ensured that this error did not cause sufficient prejudice to require reversal.
6. Integrity of defense counsel
Acuna next claims that the prosecutor committed misconduct by impugning the integrity and honesty of opposing counsel.
“While commentary about the defense’s theory is common, an argument that impugns the integrity or honesty of opposing counsel is improper.” Hulsey, 243 Ariz. at 390 ¶ 99; State v. Newell, 212 Ariz. 389, 403 ¶ 66 (2006). Moreover, this Court has “repeatedly held that a prosecutor must not make prejudicial insinuations without being prepared to prove them.” State v. Cornell, 179 Ariz. 314, 331 n.10 (1994) (finding that the prosecutor’s insinuation that defense counsel coached the Defendant’s testimony was misconduct). But referring to defense evidence as “myth” or “fanciful” and attacking defense theories has been permissible, so long as it is “directed at defense theories rather than defense counsel.” Lynch, 238 Ariz. at 96 ¶¶ 27–29, reversed on other grounds by Lynch v. Arizona, 136 S. Ct. 1818 (2016).
The criteria for determining whether such statements require reversal are whether the prosecutor’s actions called the attention of the jury to matters it could not consider, and whether the jurors were influenced by the remarks. State v. Armstrong, 208 Ariz. 345, 357 ¶ 61 (2004), supplemented, 208 Ariz. 360 (2004).
a. Fabricating testimony
Acuna asserts the prosecutor “implicitly argued” that defense counsel had fabricated testimony of two defense witnesses. He focuses on the following statements in guilt-phase closing arguments: “Neither of the sisters had any problems answering the questions posed by the defendant’s lawyer. They new [sic] every answer. They didn’t miss a beat, and rarely asked to have questions repeated. Compare that to how they acted on cross-examination,” and “We ask because the defendant wants you to stop at the manufactured testimony of Griselda and Sylvia, and we ask that you fight a little harder past that.”
Although these statements come very close to misconduct, when taken in context, they relate to witness credibility. The prosecutor should not have highlighted Acuna’s defense counsel in describing the defense witnesses’ testimony, and we do not condone prosecutors appearing to accuse the defense of “manufacturing” testimony. But the second statement Acuna identifies does not even mention defense counsel and, taken in context, these statements relate to witness credibility, rather than to defense counsel’s integrity, and do not constitute misconduct.
b. “Fooling” the jury
Acuna next claims that the prosecutor committed misconduct by repeating the term “plan” in her aggravation phase closing argument to suggest that defense counsel were attempting to fool the jury.
The prosecutor used the word “plan” referring to Acuna (“the defendant’s plan has changed”) and to his witnesses (“a new part of this plan by the defendant’s brothers and friend”) but did not refer to defense counsel personally. Because these statements focus on the defendant’s approach, rather than on defense counsel personally, the comments are squarely in the category of strategy critique, rather than constituting a personal attack. These comments are not improper.
Acuna also argues that the prosecutor criticized defense counsel for defending him during penalty-phase closing argument when she stated:
Any other claim that Jose killed Edgar that doesn’t involve revenge or retaliation is not evidence of remorse because we ask you, ladies and gentlemen, what two words were ignored by [defense counsel] in his closing arguments yesterday when he talked about bleeding, being hurt and anger [sic]? [Defense counsel] did not once admit to you Jose killed Edgar in revenge or in retaliation. . . . Do not stand up here and talk about character as mitigating and ignore the why [sic] the defendant committed this crime and the how [sic] he committed this crime, and don’t stand up here and say in front of the victim’s family if only the defendant just left maybe this wouldn’t have happened. Really?
Acuna argues that the prosecutor both implicitly argued that defense counsel had a duty to concede the aggravating circumstance and impugned the character of defense counsel for defending their client.
The topics on which the prosecutor touched here were a proportionate response to the topics defense counsel addressed in aggravation-phase closing arguments and as a result, no prosecutorial misconduct occurred.
d. Impugning the right to a constitutional defense
Acuna’s next claim of misconduct is that the prosecutor “argued that Mr. Acuna should be sentenced to death because he exercised his right to trial”:
The State is asking you to impose the death penalty on a 25-year-old man who is tried and convicted of an adult felony and tried and convicted of first degree premeditated murder. A man who in the first month of trial wanted you to believe he was not the killer, and a man who wants you to believe
because his defense attorney argued or ignored that this was a witness retaliation killing.
Acuna did not object immediately after this argument.
Here, although Acuna argued during the guilt phase that he was not the shooter, he was precluded from arguing any residual doubt before the jury in subsequent phases. Although the State’s highlighting of inconsistency in trial strategy veers toward concerns that may be associated with a defendant’s constitutional right to present a complete defense, see State v. Hardy, 230 Ariz. 281, 291 ¶ 49 (2012) (stating that a defendant has a constitutional right to present a defense, albeit limited to evidentiary rules), the prosecutor’s comment was an attack on trial strategy and not against the defense attorneys themselves and did not directly interfere with Acuna’s right to present a defense. As such, this did not constitute prosecutorial misconduct.
7. Comment on right to remain silent
Acuna next argues the prosecutor commented on his right to remain silent when she stated in penalty-phase closing arguments:
The defense cannot expect you to agree that as evidence of the defendant’s remorse is he told, according to Ms. Sandra P[.], that when she said, “Did you kill him? I hope not.” Are you kidding me? . . . Have the defense argue which of those bullet strikes the defendant hoped would not kill Edgar S[.]. . . . The defense does get a chance to respond, so maybe he can tell you which bullet the defendant hoped wouldn’t be a killing bullet.
“In Arizona, a prosecutor is prohibited both by constitution and by statute from bringing to the jury’s attention either directly or indirectly the fact a defendant did not testify.” State v. Schrock, 149 Ariz. 433, 438 (1986) (citing
State v. Rutledge, 205 Ariz. 7, 13 ¶ 33 (2003), supplemented, 206 Ariz. 172 (2003). “Statements which are a fair rebuttal to an area opened by the defense do not violate the fifth amendment.” State v. Gillies, 135 Ariz. 500, 510 (1983).
In Gillies, defense counsel argued in closing that the state’s evidence had no real connection to the defendant. The prosecutor then said during closing argument:
All other evidence points to the defendant. His cigarette on the rock on top of her body, as in the car, all the physical evidence that had been taken from the vehicle, all her property, he didn’t try to explain that because he couldn’t. All of that evidence shows that there were two men involved and the defendant was one of the two men.
Id. Although a prosecutor may not comment on a defendant’s failure to testify “if such reference is calculated to direct the jury’s attention to defendant’s exercise of his fifth amendment privilege,” we concluded this was not such a case, because the “prosecutor’s comments were fair rebuttal to the remarks of defense counsel.” Id.
Here, the challenged comments were in rebuttal to defense counsel’s argument that Acuna was remorseful. The prosecutor’s comment that “[t]he defense does get a chance to respond, so maybe he can tell you which bullet the defendant hoped wouldn’t be a killing bullet,” when read contextually, refers to one of the defense attorneys, as the prosecutor states that the defense can tell the jury which bullet the defendant hoped would not be a “killing bullet.”
Nowhere in these quoted passages does the prosecutor bring attention to the fact that Acuna did not testify. The prosecutor did not commit misconduct with these statements.
8. Arguments to appeal to jurors’ emotions
Acuna argues next that the prosecutor committed misconduct on several occasions by presenting arguments designed to inflame the passions of the jurors or to appeal to their fears and sympathies.
“Prosecutors are given ‘wide latitude’ in closing arguments.” Goudeau, 239 Ariz. at 468 ¶ 210 (quoting State v. Herrera, 174 Ariz. 387, 396 (1993)). This includes arguing all reasonable inferences from the evidence. State v. Hughes, 193 Ariz. at 85 ¶ 59. Even if a prosecutor’s argument extends beyond the limits of permissible argument, the consideration is whether the argument was “so unduly prejudicial as to have amounted to a denial of a fair trial” and whether, “under the circumstances of a particular case, the remarks of counsel were likely to have influenced the jury in reaching a verdict.” State v. King, 110 Ariz. 36, 42–43 (1973) (concerning a prosecutor expressing personal opinion, vouching for state’s witnesses, and misstating testimony). Statements have the potential to improperly appeal to jurors’ emotions, prejudices, or passions when they urge the jury “to convict [the] defendant for reasons wholly irrelevant to his own guilt or innocence.” Herrera, 174 Ariz. at 397 (1993) (internal quotation marks omitted).
a. The State’s argument that the jurors had a stake in the decision
In her closing guilt-phase argument, the prosecutor stated to the jury, “And you, especially in this case, have a stake in how things are decided.”
In State v. Herrera, we determined a prosecutor’s argument was permissible when he stated:
[I]n this case, these defendants, having committed these crimes, then it is as important to our civilized society to maintain some semblance of stability, balance, law and order . . . . Then, if the state has met its burden and the law does apply, then you do your duty so a civilized society can keep going as we honor it in our country today; that’s justice. I ask you to do justice.
174 Ariz. 387, 396 (1993). We reasoned that, in context, the prosecutor’s statements did nothing more than tell the jury that “justice is served when a jury requires the state to meet its burden of proof.” Id. at 396–97. Similarly here, the prosecutor’s statement referred to the
b. Witnesses angry at jurors
Acuna next highlights the prosecutor’s argument that mitigation witnesses were angry with the jurors, arguing that such comments were irrelevant, as well as intended to frighten the jury: “They are angry, I guess, at you.” But, in Acuna’s penalty-phase opening, defense counsel, in explaining the witnesses’ behavior on the stand, asked the jury to “cut [the mitigation witnesses] a little break,” because they were coming to terms with the “first stages of loss” from the news that Acuna would be either sentenced to death or life in prison.
In context, the prosecutor’s statements were a fair response to the explanation offered up by defense counsel as to witnesses’ attitudes while on the stand. See Goudeau, 239 Ariz. at 468 ¶ 210 (“A prosecutor may properly urge the jury to give more weight to a defendant’s crimes than to the mitigation evidence.”); State v. Leteve, 237 Ariz. 516, 529 ¶ 47 (2015) (quoting State v. Forde, 233 Ariz. 543, 572 ¶ 126 (2014)). This was not error.
c. Sympathy to defendant
Acuna also argues the prosecutor committed misconduct by appealing to the jurors’ emotions when she stated, “And after considering all and any mitigation, if proven, and valuing it before you give them [sic] sympathy to the defendant, we ask you to consider what sympathy the defendant [sic] and how much he showed to Edgar or to Perla.” Defense counsel objected, but the trial court overruled the objection.
Asking the jury to consider the sympathy the defendant showed the victims before granting him any sympathy did not improperly inflame their passions. In State v. Moody, the prosecutor told jurors that Moody had no sympathy for the victims and asked the jury to have no sympathy for him. 208 Ariz. 424, 461 ¶ 155 (2004). We affirmed, noting that “we encourage jurors not to decide cases based on emotion or sympathy.” Id. ¶ 156. The similar comments here were not improper argument and the trial court properly overruled the objection. See id. at 461 ¶¶ 155–56.
d. Justice for Edgar
Acuna argues the prosecutor committed misconduct by urging the jury to return a death verdict to do justice for the victim: “But
sometimes like now crimes are just so outrageous, so extreme, and so violent all [sic] we hold dear in society that they cry out for the maximum penalty. Justice in this case, justice for Edgar, deserves no less.” Acuna did not object at trial.
The statement asking the jury to do “justice for Edgar” was arguably inappropriate insofar as it asked the jury to “strike some sort of balance between the victim’s and the defendant’s rights.” State v. Bible, 175 Ariz. 549, 603 (1993) (stating that asking the jury to strike such a balance is improper). But, the prosecutor’s statements here were far briefer than those in Bible and did not occur elsewhere in her opening statement or closing argument, as contrasted with the prosecutor’s statements in Bible, which the Court ultimately concluded did not constitute reversible error. Id. Acuna has not demonstrated any prejudice necessary to establish that the prosecutor’s statements are fundamental error.
9. Cumulative effect
Finally, Acuna argues that the cumulative effect of the prosecutor’s misconduct prejudiced him by infecting the trial with unfairness and demonstrated intentional improper conduct with indifference or specific intent to prejudice his right to due process, counsel, and a fair trial.
“[L]ack of respect, poor courtroom decorum, and unnecessary verbal attacks on defense counsel and experts” are “unbecoming of an Arizona prosecutor,” Hulsey, 243 Ariz. at 394 ¶ 123, but this Court does not “reverse convictions merely to punish a prosecutor’s misdeeds []or to deter future misconduct,” Moody, 208 Ariz. at 460 ¶ 152 (quoting Cornell, 179 Ariz. at 328). Instead, this Court examines “whether the cumulative effect of individual allegations ‘so infected the
Acuna has failed to demonstrate that the cumulative effect of any instances of misconduct in his trial “so permeated and infected his trial as to render it unfair.” See Hulsey, 243 Ariz. at 435 ¶ 123.
G. Arizona’s Death Penalty Statutory Scheme
Acuna argues that the Arizona death penalty statutory scheme violates the Eighth and Fourteenth Amendments to the United States Constitution and
H. Abuse of Discretion Review
We “review the jury’s finding of aggravating circumstances and the imposition of a death sentence for abuse of discretion,
The jury did not abuse its discretion in finding the (F)(2) aggravating factor based on Acuna’s attempted murder of Perla and the (F)(12) aggravating factor based on Acuna’s killing Edgar in retaliation for Edgar’s prior testimony, as substantial evidence supports these findings.
With regard to the jury’s determination that death was the appropriate sentence, this Court must uphold a death sentence “if any reasonable juror could conclude that the mitigation presented was not sufficiently substantial to call for leniency.” Naranjo, 234 Ariz. at 250 ¶ 89
(citation and internal quotation marks omitted). Even if we assume Acuna proved the various mitigating factors he argued to the jury, a reasonable juror could have concluded they were not sufficiently substantial to warrant leniency.
I. Issues Raised to Avoid Preclusion
Acuna raises twelve other constitutional claims, which he states have been previously rejected by this Court but nonetheless wishes to preserve for further review. We decline to revisit these claims.
CONCLUSION
For the reasons above, we affirm Acuna’s convictions and sentences.