State v. Ramos

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

RODOLFO MARQUEZ RAMOS, Appellant.

No. 1 CA-CR 13-0076

FILED 07-22-2014

Appeal from the Superior Court in Maricopa County

No. CR2012-126450-002

The Honorable Harriett E. Chavez, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Linley Wilson

Counsel for Appellee

Maricopa County Office of the Legal Defender, Phoenix

By Cynthia Dawn Beck

Counsel for Appellant

STATE v. RAMOS

Opinion of the Court

OPINION

Judge Michael J. Brown delivered the Opinion of the Court, in which

Presiding Judge Andrew W. Gould and Judge Donn Kessler joined.

B R O W N, Judge:

¶1 Rodolfo Marquez Ramos appeals from his convictions and

sentences for conducting a chop shop and theft of a means of

transportation, and raises several claims of prosecutorial misconduct.

Although the prosecutor improperly commented on Ramos’s failure to

testify, we conclude the error, while fundamental, was not prejudicial.

We therefore affirm.

BACKGROUND

¶2 R.H. left her home one evening to stay overnight elsewhere.

As she was leaving, R.H. saw her mother’s car parked next to the curb in

front of their home. When R.H. returned home the following afternoon,

she noticed the car was missing and contacted the police.

¶3 Officer Glenn Doerr was able to track the car to a Glendale

residence. He arrived at the residence shortly thereafter and walked

toward an “open-back” trailer located on the property. Officer Doerr saw

Ramos and co-defendant James Wilson standing inside the trailer next to a

car. The officer noticed both men were dirty and Ramos’s hands and

clothing were covered in grease.

¶4 At that point additional patrol units arrived and Ramos and

Wilson were taken into custody. Officer Doerr entered the trailer and

found a car stripped of its motor, tires, and “other suspension

components.” Other officers found tools in the trailer, including bolt

cutters, tire irons, and a tool used “to cut the parts off a vehicle.” In

Ramos’s pocket, officers also found a key that had been “ground down”

such that it could “manipulate the tumblers” in multiple ignitions. When

officers checked the vehicle identification number, they confirmed it was

the car R.H. reported as missing.

¶5 The State charged Ramos and Wilson each with one count of

conducting a chop shop and one count of theft of a means of

transportation. The State also charged Ramos with one count of

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STATE v. RAMOS

Opinion of the Court

possession of burglary tools and alleged he had one historical prior felony

conviction.

¶6 The charges against Ramos and Wilson were consolidated

for trial. 1 R.H. and her mother testified they did not know either Ramos

or Wilson and did not give either of them permission to take the car from

their home. Neither Ramos nor Wilson testified. The jury convicted each

of them of conducting a chop shop and theft of a means of transportation,

but hung on the charge of possession of burglary tools against Ramos.

The trial court imposed concurrent three-year terms of standard probation

on Ramos for each count and this timely appeal followed.

DISCUSSION

¶7 Ramos argues the prosecutor engaged in several forms of

misconduct that warrant setting aside his convictions and sentences.

Specifically, Ramos contends the prosecutor improperly (1) commented

on Ramos’s failure to testify at trial; (2) bolstered the prosecutor’s

credentials and impugned the integrity of defense counsel; (3) provided

personal opinion as to Ramos’s guilt; and (4) vouched for the State’s

witnesses. We address each issue in turn.

¶8 Ramos objected at trial to the alleged prosecutorial

vouching; we therefore review that contention for harmless error. State v.

Henderson, 210 Ariz. 561, 567, ¶ 18, 115 P.3d 601, 607 (2005). Because

Ramos failed, however, to object at trial to any of the other acts or

comments he contends on appeal constituted prosecutorial misconduct, he

has waived those arguments absent a showing of fundamental error. Id.

at ¶ 19.

A. Comments on Ramos’s Failure to Testify

¶9 Ramos argues the prosecutor improperly commented on his

failure to testify. We agree, but conclude the error was not prejudicial.

¶10 It is well-established that both federal and state laws

prohibit a prosecutor from making any comment, direct or indirect, about

a defendant’s failure to testify. See U.S. Const. amend. V (“No person . . .

shall be compelled in any criminal case to be a witness against himself [ . ] ”);

Ariz. Const. art., 2, § 10 (“No person shall be compelled in any criminal

1 Wilson was sentenced separately and is not a party to this appeal.

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STATE v. RAMOS

Opinion of the Court

case to give evidence against himself [ . ] ”); Ariz. Rev. Stat. (“A.R.S.”) § 13-

117(B) (”The defendant’s neglect or refusal to be a witness in his own

behalf shall not in any manner prejudice him, or be used against him on

the trial or proceedings.”); see also Griffin v. California, 380 U.S. 609, 613-14

(1965); State v. Rutledge, 205 Ariz. 7, 12, ¶ 26, 66 P.3d 250, 255 (2003); State

v. Smith, 101 Ariz. 407, 410, 420 P.2d 278, 281 (1966).

¶11 In Griffin, the United States Supreme Court explained the

purpose of the prohibition:

[A] comment on the refusal to testify is a remnant of the

inquisitorial system of criminal justice, which the Fifth

Amendment outlaws. It is a penalty imposed by courts for

exercising a constitutional privilege. It cuts down on the

privilege by making its assertion costly. It is said, however,

that the inference of guilt for failure to testify as to facts

peculiarly within the accused’s knowledge is in any event

natural and irresistible, and that comment on the failure

does not magnify that inference into a penalty for asserting a

constitutional privilege. What the jury may infer, given no

help from the court, is one thing. What it may infer when

the court solemnizes the silence of the accused into evidence

against him is quite another.

380 U.S. at 614 (internal quotations and citations omitted). Given those

concerns, the Supreme Court held that “the Fifth Amendment, in its direct

application to the Federal Government and in its bearing on the States by

reason of the Fourteenth Amendment, forbids either comment by the

prosecution on the accused’s silence or instructions by the court that such

silence is evidence of guilt.” Id. at 615.

¶12 In this case, the prosecutor’s initial closing argument was

brief and did not discuss the elements of the crimes or any specific

evidence. Counsel for Ramos asserted several times in his closing

argument that the State failed to present any “direct evidence”

demonstrating Ramos participated in the crimes and that the State’s

reliance on circumstantial evidence was insufficient to prove guilt beyond

a reasonable doubt. During his detailed rebuttal, the prosecutor

referenced the definitions of direct and circumstantial evidence included

in the final jury instructions. He explained that the State was required to

prove all of the elements of the crimes alleged and argued it had done so.

The prosecutor also stated:

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STATE v. RAMOS

Opinion of the Court

You don’t strip a car that doesn’t belong to you without at

least alluding to the fact that it might be stolen. It’s that

simple. The defendants are never gonna get on the stand and say

“I did it. You got me.” So they’re going to try to poke holes in

whatever evidence the State has.

(Emphasis added.) Shortly thereafter, the prosecutor added: “So, red

herring is a distraction. That’s what the whole defense counsel raised is

red herrings, because, again, the defendant's [sic] never gonna say, ‘I did

it.’” A few minutes later, the prosecutor made a similar point: “Whatever

evidence the State presents, the defense will always attack something that

wasn’t done because in any criminal case there’s going to be something

that’s missed. Again, the defendants are never gonna say, ‘I did it. You

got me.’”

¶13 “Whether a prosecutor’s comment is improper depends

upon the context in which it was made and whether the jury would

naturally and necessarily perceive it to be a comment on the defendant’s

failure to testify.” Rutledge, 205 Ariz. at 13, ¶ 33, 66 P.3d at 56. “To be

constitutionally proscribed, a comment must be adverse; that is, it must

support an unfavorable inference against the defendant and, therefore,

operate as a penalty imposed for exercising a constitutional privilege.”

State v. Mata, 125 Ariz. 233, 238, 609 P.2d 48, 53 (1980).

¶14 While the prosecutor in this case may have intended to aim

his statements at rebutting defense counsel’s argument about lack of

direct proof, the statements directly pointed to Ramos’s failure to take the

stand, which “support[ed] an unfavorable inference” that Ramos chose

not to testify because he could not do so without incriminating himself.

Cf. Mata, 125 Ariz. at 238, 609 P.2d at 53 (holding that a prosecutor’s

remarks did not “support an unfavorable inference” when “the remarks

were inadvertent and immediately corrected”). The prosecutor’s

comments thus operated as a penalty on Ramos’s exercise of his

constitutional right to remain silent. See State v. Still, 119 Ariz. 549, 551,

582 P.2d 639, 641 (1978) (finding a constitutional violation when the jury

would necessarily conclude that the defendant “was the only person who

could possibly contradict or explain the State’s evidence” and the

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STATE v. RAMOS

Opinion of the Court

prosecutor’s pointing toward the defendant emphasized his failure to take

the witness stand and tell his side of the story). 2

¶15 In light of the constitutional violation, fundamental error

occurred because Ramos was deprived of a right essential to his defense.

See Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607; State v. Cannon, 118

Ariz. 273, 274, 576 P.2d 132, 133 (1978) (finding fundamental error based

on prosecutor’s comment to the jury that the defendant “never answered”

where he was on the night in question because it was “a direct comment

on defendant’s failure to take the witness stand”); State v. Decello, 113 Ariz.

255, 258, 550 P.2d 633, 636 (1975) (concluding that the prosecutor’s

statement “No one, no one, no one got up on this stand and testified to

you contrary to what was testified to you by the witness” constituted

fundamental error); State v. Rhodes, 110 Ariz. 237, 238, 517 P.2d 507, 508

(1973) (reversing defendant’s conviction based on prosecutor’s comment

that defendant “did not explain away off [the] witness stand” and

explaining that in a case in which the “rights against self-incrimination are

violated [ , ] it is fundamental error”).

¶16 Notwithstanding the fundamental nature of the error, we

must determine whether the error requires reversal. With no citation to

authority, Ramos argues that the error is prejudicial per se. Our supreme

2 Citing State v. Alvarez, 145 Ariz. 370, 373, 701 P.2d 1178, 1181 (1985),

State v. Gillies, 135 Ariz. 500, 510, 662 P.2d 1007, 1017 (1983), and State v.

Hernandez, 170 Ariz. 301, 307-08, 823 P.2d 1309, 1315-16 (App. 1991), the

State argues that the prosecutor’s comments referencing Ramos’s failure

to take “the stand” and testify were “fair rebuttal” to Ramos’s claim of

insufficient evidence. Alvarez and Hernandez did not involve violations of

the Fifth Amendment, and are therefore inapposite. In Gillies, defense

counsel argued in closing “that the state had accumulated and presented

to the jury physical evidence which had no real connection to the

defendant.” 135 Ariz. at 510, 662 P.2d at 1017. In rebuttal, the prosecutor

stated: “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, all other evidence points to

the defendant, . . . [and] he didn’t try to explain that because he couldn’t.”

Our supreme court concluded that the prosecutor’s comments were “fair

rebuttal” to defense counsel’s argument. Id. Unlike Gillies, in this case the

prosecutor did not vaguely reference Ramos’s failure to “explain”

incriminating evidence, but directly commented on his failure to testify by

stating that Ramos would never “get on the stand and say ‘I did it.’”

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Opinion of the Court

court’s opinion in Smith supports Ramos’s position. 101 Ariz. at 410, 420

P.2d at 281. That case, decided shortly after Griffin, held that the general

rule of waiver absent a timely objection “was inapplicable” when “the

claimed error is so fundamental that it is manifest that the defendant did

not have a fair trial [ . ] ” Id. The court explained that “extreme caution

must be exercised in permitting an evasion of these fundamental rights”

and “[w]hen one has been denied a constitutional right as essential as the

right against self-incrimination, prejudicial effect will be presumed and

the error will be deemed fundamental.” 3 Id. at 409-10, 420 P.2d at 280-81.

¶17 Subsequent development of the law, however, persuades us

that a prosecutor’s comment on a defendant’s failure to testify does not

necessarily require reversal of the defendant’s conviction. See Chapman v.

California, 386 U.S. 18, 20 (1967) (recognizing that “some constitutional

rights [are] so basic to a fair trial that their infraction can never be treated

as harmless error” but declining to treat a violation of the Griffin rule as

compelling an automatic reversal of the conviction); Rutledge, 205 Ariz. at

13, nn. 5-6, ¶¶ 30-32, 66 P.3d at 56 nn. 5-6 (explaining that a comment on a

defendant’s failure to testify may be “harmless error” or “fundamental

error,” depending on the facts of the case); State v. Ring (Ring III), 204 Ariz.

534, 552-53, ¶ 46, 65 P.3d 915, 933-34 (2003) (providing specific examples

of structural error, which is rarely applied). Instead, evaluating prejudice

under the fundamental error standard of review is a fact-intensive inquiry

and varies “depending upon the type of error that occurred and the facts

of a particular case.” Henderson, 210 Ariz. at 568, ¶ 26, 115 P.3d at 608;

State v. James, 231 Ariz. 490, 494, ¶ 15, 297 P.3d 182, 186 (App. 2013).

¶18 To establish prejudice, Ramos carries the burden of showing

that absent the improper comments a reasonable jury could have reached

a different result. See Henderson, 210 Ariz. at 569, ¶ 27, 115 P.3d at 609;

Rhodes, 110 Ariz. at 238, 517 P.2d at 508 (concluding prosecutorial

misconduct is prejudicial when “evidence hangs in delicate balance [and]

3 Based on Smith, some commentators have included Arizona as one

of several states that “appear to have adopted a more stringent standard

than that of the Supreme Court, indicating that a violation of the Griffin

rule is inherently prejudicial so as to call for automatic reversal.” See Stein

Closing Arguments § 1:59 (2013-2014 ed.); 1 Wharton’s Criminal Evidence

§ 3:22 (15th ed.) (stating that “nothing in Chapman [v. California, 386 U.S. 18

(1967)] would preclude a state court from holding that a violation of the

Griffin rule is prejudicial per se and thus a ground for automatic reversal

of a conviction, and some state courts have so held[,]” including Arizona).

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Opinion of the Court

any prejudicial comment [is] likely to tip the scales in favor of the State”).

If overwhelming evidence of guilt exists in the record, we may conclude

that a defendant has failed to meet his burden of establishing prejudice

from the impermissible comment. State v. Trostle, 191 Ariz. 4, 16, 951 P.2d

869, 881 (1997) (concluding that prosecutor’s statement was an

impermissible comment on defendant’s failure to testify, but the error did

not contribute to the jury’s verdict in view of the “overwhelming evidence

of guilt and the context within which it was made”).

¶19 To prove that Ramos conducted a chop shop in violation of

A.R.S. § 13-4702, the State was required to establish (1) he knowingly

owned or operated a “building, lot or other premises” in which he altered,

disassembled, dismantled, reassembled, or stored a vehicle; and (2) he

knew the vehicle was obtained by theft “with the intent to [a]lter,

counterfeit, deface, destroy, disguise, falsify, forge, obliterate or remove

the identity of the motor vehicles or motor vehicle parts [ . ] ” A.R.S. § 13-

4701(1). As relevant here, to prove Ramos committed theft of a means of

transportation, the State was required to show that Ramos “control[led]

another person’s means of transportation knowing or having reason to

know that the property is stolen.” A.R.S. § 13-1814(A). As set forth in

A.R.S. § 13-2305(1), “possession of property recently stolen, unless

satisfactorily explained, may give rise to an inference that the person in

possession of the property was aware of the risk that it had been stolen or

in some way participated in its theft.”

¶20 The overwhelming evidence presented at trial demonstrated

that less than twenty-four hours after the car was stolen, Officer Doerr

found Ramos covered in grease, standing in a trailer with the dismantled

car and various tools typically used to strip vehicles. R.H.’s mother

testified unequivocally that she never gave anyone permission to take the

car from her home. Given the strength of the State’s evidence and the

permissible inference in A.R.S. § 13-2305(1), we hold that even without the

prosecutor’s impermissible statements regarding Ramos’s failure to

testify, no reasonable jury could have acquitted Ramos of either

conducting a chop shop or theft of a means of transportation. Therefore,

Ramos has not met his burden of establishing the error was prejudicial.

¶21 Our holding, however, should not be interpreted as

minimizing the seriousness of this error. “[F]undamental error is still

error and is not turned into non-error by the overwhelming evidence of

guilt. By thus approaching the precipice of fundamental error, the

prosecution runs the risk of having an otherwise good case reversed

when, on appeal the evidence of guilt is less than overwhelming.” State v.

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Opinion of the Court

Anderson, 110 Ariz. 238, 241, 517 P.2d 508, 511 (1973). Therefore, as our

supreme court recently reminded prosecutors, they should “refrain from

venturing even close to commenting on a defendant’s exercise of the

significant rights protected by the Fifth Amendment [ . ] ” State v. Parker, 231

Ariz. 391, 407, ¶ 68, 296 P.3d 54, 70 (2013).

B. Other Claims of Prosecutorial Misconduct

¶22 We likewise conclude that none of the other claims of

prosecutorial misconduct merit reversal. Prosecutors are afforded “wide

latitude in presenting their closing arguments to the jury [ . ] ” State v. Jones,

197 Ariz. 290, 305, ¶ 37, 4 P.3d 345, 360 (2000). “To prevail on a claim of

prosecutorial misconduct, a defendant must demonstrate that (1)

misconduct is indeed present; and (2) a reasonable likelihood exists that

the misconduct could have affected the jury’s verdict, thereby denying

defendant a fair trial.” State v. Moody, 208 Ariz. 424, 459, ¶ 145, 94 P.3d

1119, 1154 (2004) (internal quotations omitted). Prosecutorial misconduct

“is not merely the result of legal error, negligence, mistake, or insignificant

impropriety, but, taken as a whole, amounts to intentional conduct which

the prosecutor knows to be improper and prejudicial, and which he

pursues for any improper purpose with indifference to a significant

resulting danger of mistrial or reversal [ . ] ” Pool v. Superior Court, 139 Ariz.

98, 108-09, 677 P.2d 261, 271-72 (1984).

¶23 Ramos contends the prosecutor improperly bolstered his

own credentials by informing the jury he had been practicing law for

twenty years. Specifically, during his rebuttal argument, the prosecutor

relayed advice to the jury he received “almost 20 years ago” when he was

preparing for the bar exam, namely, “not to miss the forest for the trees.”

We perceive no misconduct in the prosecutor’s fleeting reference to how

long ago he sat for the bar exam. It was not the focus of the statement and

the prosecutor did not attempt to argue he had superior knowledge or

expertise due to his years of experience.

¶24 Ramos also argues the prosecutor improperly impugned

defense counsel. During his rebuttal argument, the prosecutor claimed

that defense counsel’s focus on the State’s failure to prove Ramos owned

the property upon which the trailer and stripped vehicle were found was

an attempt to divert the jurors from the relevant evidence by raising

distractions or “red herrings.” The prosecutor also told jurors that defense

counsel asked them to speculate and “check [their] common sense at the

door.”

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Opinion of the Court

¶25 “Jury argument that impugns the integrity or honesty of

opposing counsel is [] improper,” State v. Hughes, 193 Ariz. 72, 86, ¶ 59,

969 P.2d 1184, 1198 (1998), but “[c]riticism of defense theories and tactics

is a proper subject of closing argument,” U.S. v. Sayetsitty, 107 F.3d 1405,

1409 (9th Cir. 1997). Although some of the prosecutor’s comments

suggested that defense counsel was attempting to mislead the jury, we

cannot say that those statements did more than criticize defense tactics.

¶26 Next, Ramos contends the prosecutor improperly offered his

personal opinions during rebuttal closing argument by repeatedly using

the phrases “the State submits” and “the State would submit.” “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, 862 P.2d 223,

227 (App. 1993) (internal quotation omitted). “A prosecutor must avoid

assertions of personal knowledge.” Id.

¶27 The statements cited by Ramos, however, were not improper

because the prosecutor’s use of the phrase “the State submits” was limited

to discussing the evidence presented at trial and did not suggest he was

aware of information not presented to the jury that would support a

finding of guilt. See U.S. v. Necoechea, 986 F.2d 1273, 1279 (9th Cir. 1993)

(holding that “I submit” statements do not constitute vouching).

Therefore, we do not agree that the prosecutor’s use of these phrases

constituted prosecutorial misconduct.

¶28 Finally, Ramos asserts the prosecutor engaged in

impermissible vouching by “placing the prestige of the government”

behind the testimony of the police officers. When determining whether a

prosecutor’s statements improperly vouched for a witness’s credibility,

the statements must be considered in context. State v. Haverstick, 234 Ariz.

161, 165, ¶ 7, 318 P.3d 877, 881 (App. 2014).

¶29 In his closing argument, defense counsel noted that Officer

Johnson’s testimony “seemed slightly inconsistent” with Officer Doerr’s

testimony and he invited the jurors to “review the photographs of the

trailer and come to [their] own conclusions” as to whether the officers’

“recollections” were accurate. During his rebuttal, the prosecutor

responded by framing defense counsel’s statements as an argument “that

the officers somehow would have lied or fabricated” their testimony. The

prosecutor further argued that the “police are simply doing their job” and

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Opinion of the Court

suggested they have no motive to lie. The trial court sustained defense

counsel’s objection and warned counsel to be careful with his comments.

¶30 Although the prosecutor mischaracterized defense counsel’s

statements regarding the officers’ credibility, we conclude the prosecutor's

rhetorical questions to the jury “[W]hat motive would the police have to

lie in a case like this?” and “[W]hat motive would they have to lie or

fabricate any evidence?” did not rise to the level of misconduct.

Moreover, the trial court instructed the jury that the attorneys’ closing

arguments were not evidence, and we presume the jurors followed the

court’s instructions. See State v. Ramirez, 178 Ariz. 116, 127, 871 P.2d 237,

248 (1994). On this record, there is no reasonable likelihood the

prosecutor’s statements could have affected the jury’s verdict. See State v.

Newell, 212 Ariz. 389, 403, ¶ 67, 132 P.3d 833, 847 (2006).

CONCLUSION

¶31 For the foregoing reasons, we affirm Ramos’s convictions

and sentences.

:gsh

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