State of Az v. Christopher George Theodore Lamar , 205 Ariz. 431 ( 2003 )

SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-01-0270-AP
Appellee, )
)
v ) Maricopa County Superior
) Court
CHRISTOPHER GEORGE THEODORE ) No. CR1996-011714
LAMAR, )
)
Appellant. ) O P I N I O N
)
__________________________________ )
Appeal from the Superior Court of Maricopa County
No. CR1996-011714
The Honorable Stephen A. Gerst, Judge
CONVICTIONS AFFIRMED
_________________________________________________________________
Janet Napolitano, Former Arizona Attorney General Phoenix
Terry Goddard, Arizona Attorney General
by Kent E. Cattani, Chief Counsel Capital
Litigation Section
and Robert L. Ellman, Assistant Attorney General
Attorneys for the State of Arizona
Susan M. Sherwin, Maricopa County Phoenix
Office of the Legal Advocate
by Brent E. Graham
Attorneys for Christopher George Theodore Lamar
_________________________________________________________________
M c G r e g o r, Vice Chief Justice
¶1 A jury convicted Christopher George Theodore Lamar of the
first degree murder and kidnapping of Ronald Jones. Following a
sentencing hearing, the trial judge sentenced Lamar to death for
the first degree murder conviction and to twenty-one years
imprisonment for the kidnapping conviction. Appeal to this court
is automatic and direct for capital cases. Ariz. Rev. Stat.
(A.R.S.) § 13-703.04 (Supp. 2002); Ariz. R. Crim. P. 31.2.b. We
exercise jurisdiction pursuant to Article VI, Section 5.3 of the
Arizona Constitution and A.R.S. section 13-4031 (2001).
I.
¶2 This court views the evidence in the light most favorable
to sustaining the verdict. State v. Moore, 111 Ariz. 496, 497, 533
P.2d 663, 664 (1975).
¶3 In April 1996, Lamar met and became involved with Myla
Hogan. While the two were dating, Hogan lived in a house on 81st
Avenue in Peoria, Arizona, with several other people, including
Mary Keovorabouth, Ouday “Tim” Panmany, Vincent Macchirella,
Richard Valdez, and Abraham Hermosillo.1
¶4 On May 11, 1996, Ronald Jones left his house around 1:00
p.m., telling Alicia Sosa, his live-in girlfriend, that he planned
to deliver documents to a loan company. At some point, Hogan
called Jones’s pager to invite him to lunch. Hogan and Jones knew
one another through Keovorabouth. Jones picked Hogan up at the
house on 81st Avenue, and the two ate lunch together.
1
Vincent Macchirella and Abraham Hermosillo accepted plea
agreements in exchange for their testimony in any trial related to
the murder and kidnapping of Ronald Jones. Macchirella pled guilty
to second degree murder and received a thirteen-year sentence.
Hermosillo pled guilty to second degree murder and received a ten-
year sentence.
2
¶5 When Hogan and Jones returned to the house on 81st
Avenue, Keovorabouth, Hermosillo, Macchirella, Valdez, Panmany, and
Lamar were all present. Prior to May 11, the group had devised a
plan to kidnap and rob Jones. The purpose of the plan was twofold:
to steal Jones’s money and possessions so they could pay rent and
to “rough him up a little bit” so he would stop spending time with
Hogan.
¶6 Lamar and the others were waiting for Jones when Hogan
and Jones returned to the house. When Lamar confronted Jones about
his relationship with Hogan, Jones responded that he did not know
of Hogan’s involvement with Lamar. Lamar then punched Jones.
After Jones fell to the floor, Macchirella pointed a gun at him.
At Lamar’s direction, Hermosillo retrieved duct tape and bound
Jones’s hands and ankles.
¶7 Lamar and Macchirella then moved Jones into a bedroom and
took his possessions, including his shoes, jewelry, fifty dollars,
and some crack cocaine. Jones cried and pleaded for his life,
offering to write a check if they released him. Lamar demanded the
gun from Macchirella, explaining that he had “done this before.”
The group then led Jones upstairs and held him captive while
everyone watched television and took turns guarding Jones with the
gun. Jones begged to be let go several times.
¶8 When it became dark, Lamar and the others led Jones
downstairs and forced him into the front passenger seat of Jones’s
3
car. Lamar directed Macchirella to drive to Lamar’s and
Hermosillo’s old neighborhood near 35th Avenue and Broadway Road.
Hermosillo, Panmany, and Valdez followed in a stolen truck but made
a stop along the way. Lamar sat behind Jones in the car. At one
point, Lamar held the gun to Jones’s head and pulled the trigger,
but the gun did not fire. Jones cried and pleaded for his life
when he heard the click of the gun.
¶9 Eventually, Lamar directed Macchirella to stop the car.
Macchirella pulled the car to the side of the road near a vacant
lot. The three men exited the vehicle and walked to the back of
the car. At Lamar’s direction, Macchirella opened the trunk.
Lamar then shot Jones. At trial, the medical examiner testified
that Jones suffered two gunshot wounds to the head. Macchirella
testified that as he and Lamar picked Jones up and placed him in
the trunk, Jones made “gurgling” sounds, as if he were choking on
his own blood.
¶10 Hermosillo, Panmany, and Valdez were at Hermosillo’s
grandmother’s nearby house when they heard gunshots. When they
arrived at the scene and asked what had happened, Lamar responded
by opening the trunk and patting Jones’s back.
¶11 The group decided to move Jones’s car and bury his body.
The car would not start, so they pushed it to a parking lot.
Someone retrieved a shovel, and, at Lamar’s direction, Macchirella
dug a grave. Lamar, Hermosillo, Panmany, and Valdez then dragged
4
Jones’s body to the grave, pushed him into the hole, and covered it
with dirt and brush. Some or all of the group removed a cellular
telephone, a radio, a CD player, a toolbox, and a tool belt from
Jones’s car. They then set Jones’s car on fire.
¶12 At some time during the night, Macchirella called the
house in Peoria from Jones’s cellular telephone, telling
Keovorabouth they had made a mistake. Lamar chastised him for
using the phone, which could connect them to Jones.
¶13 Everyone then went to a party in Lamar’s and Hermosillo’s
old neighborhood. At the party, Lamar saw his cousin Frances
Lamar. Frances later testified that she noticed some blood on
Lamar’s shoes. Lamar asked Frances for a ride to Mesa, and while
they were driving she saw him throw a shoe out the window. Lamar
returned to the party and he, Macchirella, Hermosillo, Panmany, and
Valdez drove back to Peoria in the stolen truck. They abandoned
the truck in a nearby parking lot and walked back to the house on
81st Avenue.
¶14 Hogan testified that after the group returned to the
house she asked Lamar where they had been and he responded, “Don’t
ask.” Hogan described Lamar as looking very white, as if he had
seen a ghost.
¶15 According to Hermosillo, when they returned to the house,
both Lamar and Macchirella accused the other of shooting Jones, but
both eventually claimed to have shot Jones. Hermosillo testified
5
that Lamar also described the size of the holes that the bullets
made in Jones’s head.
¶16 In September 1996, Silent Witness received a tip,
apparently from Lamar’s cousin Frances, that the police could find
a body buried in a vacant lot near 43rd Avenue and Weir. Later,
Hogan, Frances, and Frances’s sister Marie spoke with Maricopa
County Sheriff Detective John Strang. After interviewing the
women, the police searched a gravel pit near 43rd Avenue and Weir
and located a body, later identified through dental x-rays as
Ronald Jones.
¶17 The police then executed a search warrant at the
apartment of Debra Lamar, Lamar’s aunt, where Lamar and Hogan
sometimes stayed. In a trash dumpster behind the apartment, the
police discovered a tool belt, wrapped in a diaper. Debra admitted
that she found the tool belt in the pantry, where Lamar kept his
belongings, and that she threw the belt into the dumpster. The
police also found a toolbox on a shelf located in the rear of the
kitchen.
¶18 The police did not test the toolbox or the tools found in
it for fingerprints. Alicia Sosa testified, however, that she
recognized some of the tools as belonging to Jones. Sosa also
identified handwriting on a note found in the toolbox as her own.
¶19 In February 1997, a grand jury indicted Lamar for the
first degree murder and kidnapping of Ronald Jones. The court
6
appointed Mr. Steinle and Mr. Dupont from the Office of the Legal
Defender to represent Lamar. In May 1999, Lamar moved to discharge
Mr. Steinle but consented to his continued representation by Mr.
Dupont. At that time, Mr. Steinle and Mr. Dupont told the trial
judge that Lamar’s case was prepared for trial, and that they had
provided Lamar the materials related to his case. The trial court
granted Lamar’s request and dismissed Mr. Steinle. In October
1999, Lamar moved to represent himself but withdrew his motion when
the trial judge denied his request for a continuance.
¶20 On December 10, 1999, a jury convicted Lamar of
kidnapping and first degree murder on both premeditated and felony
murder theories. After considering the aggravating and mitigating
circumstances, the trial court sentenced Lamar to death.
II.
¶21 Lamar argues that the trial court abused its discretion
in denying his motion to continue and that the denial effectively
prevented him from representing himself, thereby violating rights
secured by the Sixth Amendment and Article II, Section 24 of the
Arizona Constitution.2 The State contends the court acted within
its discretion and did not infringe upon Lamar’s Sixth Amendment
2
Lamar does not assert that Article II, Section 24 of the
Arizona Constitution provides a broader right to self-
representation than does the Sixth Amendment. Nor does Lamar
separately analyze his argument under the Arizona Constitution. We
therefore analyze his argument in accordance with Sixth Amendment
jurisprudence. See State v. Nunez, 167 Ariz. 272, 274 n.2, 806
P.2d 861, 863 n.2 (1991).
7
right because it did not deny Lamar’s motion to represent himself.3
A.
¶22 The right to counsel under both the United States and
Arizona Constitutions includes an accused’s right to proceed
without counsel and represent himself. Faretta v. California, 422
U.S. 806, 836, 95 S. Ct. 2525, 2541 (1975); State v. De Nistor, 143
Ariz. 407, 412, 694 P.2d 237, 242 (1985). To exercise this right,
a defendant must voluntarily and knowingly waive his right to
counsel and make an unequivocal and timely request to proceed pro
se. De Nistor, 143 Ariz. at 412, 694 P.2d at 242. Generally, a
request is considered timely if it is made “before meaningful trial
proceedings have commenced,”4 which courts have interpreted to mean
before the jury is empaneled. Armant v. Marquez, 772 F.2d 552, 555
(9th Cir. 1985); De Nistor, 143 Ariz. at 412, 694 P.2d at 242. If
a defendant complies with these requirements, the trial court
3
The State also argues that Lamar did not actually move to
continue the trial date, noting that he failed to file a written
motion in compliance with Rule 8.5 of the Arizona Rules of Criminal
Procedure. We reject this assertion. First, both the State and
defense counsel previously made oral requests for continuances,
which the trial court granted. Although it is preferable that a
party file a written motion for continuance, given the trial
court’s previous rulings, we do not find that Lamar failed to
request a continuance simply because he did not file a written
motion. Moreover, the record indicates that the trial court
treated arguments on October 25 and 26, 1999, regarding whether
Lamar desired to represent himself, as involving a motion to
continue.
4
Chapman v. United States, 553 F.2d 886, 895 (5th Cir.
1977).
8
should grant the defendant’s request to represent himself. Armant,
772 F.2d at 555.
¶23 Lamar first expressed his desire to represent himself on
October 21, 1999, when he filed a motion for change of counsel by
requesting that the Office of the Legal Defender be withdrawn and
that he be substituted as replacement counsel. Lamar asked for an
extension of the trial date until at least January to prepare his
defense. Because the trial, scheduled to begin on November 18,
1999, had not yet commenced, Lamar’s request was timely.
¶24 At a hearing on the motion on October 25, the court
stated it would consider the request on the following day. At that
hearing, the trial judge asked Lamar a series of questions to
ensure that Lamar was voluntarily and knowingly relinquishing his
right to counsel. Lamar unequivocally asserted his right to
represent himself and signed a waiver of counsel form. The record
clearly shows that the trial court intended to grant Lamar’s
request for self-representation. When the trial judge explained
that he did not intend to continue the trial and asked whether,
given that knowledge, Lamar still wished to represent himself,
Lamar responded, “No.” He thus effectively withdrew his request.
B.
¶25 Lamar argues that the trial court abused its discretion
in denying his request for a continuance because the denial
resulted in a de facto denial of his constitutional right to self-
9
representation. We disagree.
¶26 Although a defendant enjoys a constitutional right to
represent himself, Faretta, 422 U.S. at 836, 95 S. Ct. at 2541, the
Constitution does not also require that a trial court grant a
defendant a continuance regardless of the circumstances. A trial
court maintains discretion in determining whether to grant a
continuance made in conjunction with a motion to proceed pro se.
See Ungar v. Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841, 849 (1964)
(reviewing a denial of a continuance that the defendant claimed
deprived him of his right to counsel for an abuse of discretion);
Sampley v. Attorney Gen., 786 F.2d 610, 613 (4th Cir. 1986)
(“[T]rial courts must be accorded wide discretion in deciding
whether to grant continuances, notwithstanding that constitutional
rights may be implicated.”); State v. LeVar, 98 Ariz. 217, 220-21,
403 P.2d 532, 535 (1965) (explaining that although the right to
counsel includes the right to adequate time to prepare, a trial
court maintains discretion in determining whether to grant a
continuance).
¶27 A trial court maintains discretion because a defendant’s
right to represent himself does not exist in a vacuum. De Nistor,
143 Ariz. at 412, 694 P.2d at 242. The court must consider the
defendant’s right in conjunction with a victim’s constitutional
10
right to a speedy trial5 and the trial court’s prerogative to
control its own docket. Scheduling a trial presents the practical
challenge of “assembling the witnesses, lawyers, and jurors at the
same place at the same time.” Morris v. Slappy, 461 U.S. 1, 11,
103 S. Ct. 1610, 1616 (1983). Consequently, when a defendant
asserts his right to self-representation and the trial court is
prepared to grant the defendant’s motion to proceed pro se but not
his request for a continuance, “only an unreasoning and arbitrary
‘insistence upon expeditiousness in the face of a justifiable
request for delay’ violates” the defendant’s constitutional right
to self-representation. Id. at 11-12, 103 S. Ct. at 1616 (quoting
Ungar, 376 U.S. at 589, 84 S. Ct. at 849).
¶28 Whether denying a continuance violates a defendant’s
constitutional rights depends on the facts and circumstances of a
particular case. State v. Hein, 138 Ariz. 360, 369, 674 P.2d 1358,
1367 (1983). We therefore view the trial court’s denial of a
continuance in the context of a case’s history.
¶29 In De Nistor, which involved facts similar to those in
this case, we discussed the factors a court should consider in
deciding a motion to continue made in conjunction with a request
for self-representation. There, after the jury had been empaneled
5
The Arizona Constitution protects a victim’s right “[t]o
a speedy trial or disposition and prompt and final conclusion of
the case after the conviction and sentence.” Ariz. Const. art. II,
§ 2.1(A)10.
11
and several witnesses had testified, the defendant asked to
discharge her attorney so that she could represent herself. 143
Ariz. at 412, 694 P.2d at 242. The defendant also requested a
continuance to prepare her defense. Id. The trial court stated it
would permit the defendant to proceed pro se but that it would not
grant a continuance. Id. We upheld the trial court’s decision and
explained that a trial court, in evaluating a request for
continuance, coupled with a request for self-representation, should
consider factors such as “the reasons for the defendant’s request,
the quality of counsel, the defendant’s proclivity to substitute
counsel and the disruption and delay expected in the proceedings if
the request were to be granted.” Id. at 413, 694 P.2d at 243.
Three of the four De Nistor factors are relevant in evaluating
Lamar’s case: the reasons for the continuance, Lamar’s proclivity
to substitute counsel, and the expected disruption if the trial
court granted the continuance.6 We conclude the trial court did
not abuse its discretion in denying Lamar’s motion to continue.
¶30 Although Lamar discharged one of his attorneys in May
6
The De Nistor facts differ from Lamar’s facts in one
significant aspect: De Nistor did not timely assert her right to
self-representation whereas Lamar did. Although a court should
grant a timely, unequivocal motion to proceed pro se, the court
maintains discretion in deciding whether to grant an untimely
motion for self-representation. If a defendant makes a timely
request, therefore, the quality of counsel should have little
impact on the trial court’s decision. If the trial court exercises
its discretion over an untimely request, the quality of counsel
factor could more directly affect the court’s decision.
12
1999, he had not demonstrated a proclivity for substituting
counsel. That factor supports granting a continuance. The other
factors, however, weigh against granting the request.
¶31 The explanation a defendant provides to the trial court
to justify a request for a continuance constitutes a critical
factor in determining whether the trial court abused its discretion
in denying the request. See Ungar, 376 U.S. at 589, 84 S. Ct. at
850; United States v. Garmany, 762 F.2d 929, 936 (11th Cir. 1985);
United States v. Uptain, 531 F.2d 1281, 1285-86 (5th Cir. 1976).
Without knowing the reasons justifying a continuance, we are left
to speculate whether the trial court acted arbitrarily in balancing
the defendant’s needs against the victim’s rights and the orderly
administration of justice.
¶32 At trial, and now on appeal, Lamar has failed to
articulate any specific reasons that necessitated a continuance.
He points to nothing in the record, and we have found nothing on
review, that explains what he would have done had the trial been
continued that he could not have accomplished before the November
trial date. Indeed, when Lamar first asserted his right to proceed
pro se, he indicated that although he desired more time, he could
be prepared for the November trial. Moreover, according to Lamar’s
counsel, his case had been ready for trial for almost five months.
Although Lamar asserts that he had not received all the information
he needed to prepare, he has not identified any materials to which
13
he lacked access. His lawyers’ statements to the court further
undermine his position; they told the trial judge that Lamar had
received the evidence against him long before he requested the
continuance.7 Lamar also indicated that he had received relevant
material. At the October 26 hearing, the judge asked Lamar whether
he understood the complexity of his case and the risks of
proceeding pro se. Lamar responded: “Yes, sir. I’ve gone over my
case many times, my police reports, and what I have.” Furthermore,
if Lamar had represented himself, the court indicated it would
appoint his lawyers, who were familiar with his case, as his
advisory counsel. Finally, the State’s evidence implicating Lamar
was not technical and consisted mostly of circumstantial evidence
and the testimony of co-defendants Macchirella and Hermosillo.
Accordingly, the record provides no basis for this court to
conclude that the time available to Lamar before trial was
insufficient to allow Lamar to exercise his right to self-
representation.
¶33 The trial court also had substantial reason to conclude
that continuing the trial would have caused considerable disruption
and delay. By the time Lamar requested a continuance in
7
At the October 26, 1999 hearing, Lamar indicated he
needed more time because he was “just barely getting some of the
stuff from [his] case.” On May 24, 1999, however, Lamar’s lawyers
stated: “We, for the record, categorically deny the fact that he
has not been provided discovery or the opportunity to review the
videotapes, audiotapes or anything else that he wanted.”
14
conjunction with his motion to proceed pro se, the trial court had
granted fifteen motions to continue. Coordinating the lawyers’
busy schedules had presented a challenge: the court had granted
continuances on five occasions due to schedule conflicts.
Attempting to reschedule a trial that the court anticipated would
last for three to four weeks undoubtedly would have caused further
disruption and delay.
¶34 In addition, the court’s decision could not have come as
a surprise to Lamar. A grand jury indicted Lamar in February 1997.
After setting a firm trial date for November 18, 1999, the trial
court informed counsel and Lamar during a hearing in August 1999,
that the court did not anticipate granting any more continuances.
Given those circumstances, Lamar should have anticipated that any
request for a continuance would be denied. Accordingly, applying
the factors identified in De Nistor, we hold the trial court did
not abuse its discretion in denying Lamar’s continuance.
¶35 Lamar argues that, rather than rely on our decision in De
Nistor, we should apply the standards articulated by the Ninth
Circuit Court of Appeals in Armant v. Marquez, 772 F.2d 555 (9th
Cir. 1985), for considering a motion to continue filed in
conjunction with a request for self-representation. Although our
conclusion rests upon the test this court adopted in De Nistor, we
would reach the same result under Armant.
¶36 In Armant, the Ninth Circuit considered four factors to
15
determine whether a trial court abused its discretion in denying a
motion to continue: (1) the degree of diligence by the defendant
before the date beyond which a continuance is sought; (2) whether
the continuance would have served a useful purpose if granted; (3)
the inconvenience that granting the continuance would have caused
the court or government; and (4) the amount of prejudice suffered
by the defendant. Armant, 772 F.2d at 556-57.
¶37 By waiting until October 21, 1999, to unequivocally
assert his right to represent himself, Lamar exercised little
diligence. His request came more than two and one-half years after
he entered his not guilty plea. Although Lamar expressed
dissatisfaction with one of his attorneys in May 1999, he did not
at that time ask to represent himself. Instead, he consented to
representation by Mr. Dupont and the Office of the Legal Defender.
Second, as previously discussed, Lamar has not explained how the
continuance would have been useful because he has not told us what
he could have accomplished during the two-month extension that he
could not accomplish before the November trial date. Third, unlike
the situation in Armant, which involved a one-day trial, re-
calendaring Lamar’s case would have caused considerable
inconvenience, for the reasons explained above. Finally, the
record does not indicate the denial of the continuance prejudiced
Lamar. Lamar had twenty-three days to prepare for trial with the
assistance of advisory counsel familiar with his case. He has
16
failed to explain why he could not meaningfully exercise his right
to self-representation without a continuance. Accordingly, we
conclude the trial court did not abuse its discretion under the
Armant standard.
III.
¶38 Prior to trial, the trial court granted Lamar’s motion in
limine to preclude the State from introducing evidence that Richard
Valdez, speaking in Lamar’s presence, allegedly threatened Hogan by
asking her if she would like to be buried next to her friend,
referring to Ronald Jones. During the State’s direct examination
of Hogan, she testified about a time Macchirella threatened her
when Lamar was not present. The State inquired whether anyone made
threats in Lamar’s presence. Hogan responded, “When Richard said
they was [sic] going to bury me next to ---.” Lamar’s counsel
immediately interrupted Hogan, objected on hearsay as well as
foundational grounds, and later moved for a mistrial or dismissal.
¶39 Lamar raises three arguments related to this statement:
(1) the trial court abused its discretion in denying his motion for
a mistrial; (2) the prosecutor’s conduct in eliciting the statement
warranted a dismissal; and (3) Hogan’s hearsay statement violated
his constitutional right to confrontation. U.S. Const. amend. VI;
Ariz. Const. art. II, § 24. We reject all three arguments.
A.
¶40 We conclude that the trial court did not abuse its
17
discretion in denying Lamar’s motion for a mistrial. “A
declaration of mistrial is the most dramatic remedy for trial error
and is appropriate only when justice will be thwarted if the
current jury is allowed to consider the case.” State v. Nordstrom,
200 Ariz. 229, 250 ¶ 68, 25 P.3d 717, 738 (2001). The trial court
must consider two factors in determining whether to grant a motion
for a mistrial based on a witness’s testimony: (1) whether the
testimony called to the jurors’ attention matters that they would
not be justified in considering in reaching their verdict and (2)
the probability under the circumstances of the case that the
testimony influenced the jurors. State v. Bailey, 160 Ariz. 277,
279, 772 P.2d 1130, 1132 (1989). This court gives great deference
to a trial court’s decision because the trial court “is in the best
position to determine whether the evidence will actually affect the
outcome of the trial.” State v. Jones, 197 Ariz. 290, 304 ¶ 32, 4
P.3d 345, 359 (2000).
¶41 The trial court determined that Hogan’s testimony that
Valdez threatened her constituted hearsay. Therefore, arguably her
testimony called the jurors’ attention to a matter inappropriate
for them to consider. The trial court did not abuse its discretion
in denying the motion for a mistrial, however, because several
factors make it highly improbable that Hogan’s statement influenced
the jury.
¶42 First, Lamar’s counsel immediately objected, preventing
18
Hogan from completing the statement and mentioning that burying her
next to her friend meant next to Jones. Second, even if Hogan had
completed the statement, the statement does not necessarily
implicate Lamar in the murder and kidnapping of Jones. By using
the pronoun “they,” Valdez could have been referring to several
different people. Even if the jury inferred that Valdez included
Lamar in his reference to “they,” the inference does not prejudice
Lamar unless the jury also believed Lamar adopted or joined in
Valdez’s threat. The extremely tenuous link between Hogan’s
incomplete statement and Lamar make any inference by the jury that
Lamar adopted the statement highly improbable.
¶43 Furthermore, to avoid any prejudice to Lamar, the trial
court instructed the jury to disregard Hogan’s statement,
explaining that there was no indication that Lamar heard the
threat, acknowledged it, or was in anyway involved with Valdez’s
threat. The court’s curative instruction sufficiently overcame any
probability that the jury would conclude that Lamar had joined in
the threat. See State v. Ramirez, 116 Ariz. 259, 265, 569 P.2d
201, 207 (1977) (concluding admission of victim’s hearsay statement
did not require reversal, in part, because the court instructed the
jury to disregard the statement). Accordingly, the trial court did
not abuse its discretion in denying Lamar’s motion for a mistrial.
B.
¶44 Lamar next asserts that the prosecutor’s conduct in
19
eliciting Hogan’s statement warrants a dismissal. Specifically, he
argues that the misconduct denied him a fair trial and violated his
due process and double jeopardy rights, relying upon the Fifth and
Fourteenth Amendments and Article II, Sections 4, 10, and 24 of the
Arizona Constitution. Lamar also relies on Pool v. Superior Court,
139 Ariz. 98, 677 P.2d 261 (1984).
¶45 We reject Lamar’s arguments and find his reliance on Pool
misplaced. Lamar’s characterization of the prosecutor’s
questioning of Hogan as misconduct conflicts with the trial court’s
finding that, although the prosecutor’s question was “inartfully
framed,” the prosecutor did not intentionally evade the trial
court’s order. This finding of fact is not clearly erroneous. See
State v. Cuffle, 171 Ariz. 49, 51, 828 P.2d 773, 775 (1992)
(“Appellate review of a trial court’s findings of fact is limited
to a determination of whether those findings are clearly
erroneous.”). Importantly, a prosecutor’s misconduct implicates a
defendant’s double jeopardy rights under Pool only when:
1. Mistrial is granted because of improper conduct or
actions by the prosecutor; and
2. such conduct 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; and
3. the conduct causes prejudice to the defendant which
cannot be cured by means short of a mistrial.
Pool, 139 Ariz. at 108-09, 677 P.2d 271-72 (footnote omitted). Not
only did the trial court find that the prosecutor’s conduct was not
20
intentional, but, in addition, nothing in the record suggests that
the prosecutor asked the question with an improper purpose or
indifference to a significant resulting danger of mistrial or
reversal. Lamar’s argument that his double jeopardy rights were
violated lacks merit.
C.
¶46 Lamar finally asserts that Hogan’s hearsay statement
violated his constitutional right to confrontation. U.S. Const.
amend. VI; Ariz. Const. art. II, § 24. Harmless error review
applies to a confrontation violation. Schneble v. Florida, 405
U.S. 427, 430, 92 S. Ct. 1056, 1059 (1972); State v. Corrales, 138
Ariz. 583, 595, 676 P.2d 615, 627 (1983). Given that Hogan’s
statement did not necessarily implicate Lamar and that the judge
gave a curative instruction, we can conclude beyond a reasonable
doubt that the statement did not impact the jury’s verdict. Thus,
any confrontation violation was harmless error.
IV.
¶47 Lamar presents several other arguments related to the
guilt phase of his trial. We conclude that none has merit.
A.
¶48 Lamar contends the trial court’s instruction explaining
the State’s burden of proof beyond a reasonable doubt, which
tracked the language we approved of in State v. Portillo, 182 Ariz.
21592, 596, 898 P.2d 970, 974 (1995), is constitutionally deficient.8
Specifically, Lamar asserts that the Portillo instruction, by using
the phrase “firmly convinced,” equates the beyond a reasonable
doubt standard with a clear and convincing evidence standard,
thereby lessening the State’s burden. Lamar further argues that
explaining to the jury that “[t]here are very few things in this
world that we know with absolute certainty” reduces the State’s
burden as well. Finally, Lamar contends that the last sentence,
which refers to a “real possibility” the defendant is not guilty,
impermissibly shifts the burden to the defendant.
¶49 We have rejected the proposition that the Portillo
instruction lessens the state’s burden on several occasions. State
v. Hall, __ Ariz. __, __ ¶ 56, 65 P.3d 90, 103 (2003); State v.
Prince, __ Ariz. __, __ ¶ 25, 61 P.3d 450, 455 (2003); State v.
Cañez, 202 Ariz. 133, 156 ¶ 76, 42 P.3d 564, 587 (2002); State v.
Van Adams, 194 Ariz. 408, 418 ¶ 30, 984 P.2d 16, 26 (1999). We
also have rejected the assertion that the Portillo instruction
8
The judge instructed the jury as follows:
Proof beyond a reasonable doubt is proof that leaves you
firmly convinced of the defendant’s guilt. There are
very few things in this world that we know with absolute
certainty, and in criminal cases the law does not require
proof that overcomes every doubt. If, based on your
consideration of the evidence, you are firmly convinced
that the defendant is guilty of the crime or crimes
charged, you must find him guilty. If, on the other
hand, you think there is a real possibility that he is
not guilty of a crime or crimes charged, you must give
him the benefit of the doubt and find him not guilty.
22
impermissibly shifts the burden to the defendant. State v. Finch,
202 Ariz. 410, 415 ¶ 18, 46 P.3d 421, 426 (2002). We again reject
these challenges and reaffirm the constitutionality of the Portillo
instruction. We find no error.
B.
¶50 Lamar contends that the prosecutor engaged in misconduct
by vouching for the credibility of two of the State’s witnesses by
(1) commenting that a condition of both Macchirella’s and
Hermosillo’s plea agreement required them to testify truthfully and
(2) remarking upon the veracity of Macchirella’s statement that he
felt stupid when Lamar chastised him for using Jones’s cellular
telephone after the murder. Lamar did not raise either of these
objections at trial. Thus, absent a finding of fundamental error,
Lamar has waived the right to challenge the prosecutor’s conduct on
appeal. State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627
(1991). To rise to the level of fundamental error, an “error must
be clear, egregious, and curable only via a new trial.” Id. at
155, 812 P.2d at 628.
¶51 A prosecutor impermissibly vouches for a witness by
placing the prestige of the government behind its witnesses or
suggesting that information not presented to the jury supports a
witness’s testimony. State v. Dumaine, 162 Ariz. 392, 401, 783
P.2d 1184, 1193 (1989). Lamar argues that the prosecutor placed
the prestige of the government behind Macchirella’s and
23
Hermosillo’s testimony by highlighting that a condition of their
plea agreements required them to testify truthfully.
¶52 We consistently have held that a prosecutor does not
engage in misconduct merely by introducing evidence of a witness’s
agreement to testify truthfully in exchange for a plea agreement.
State v. James, 141 Ariz. 141, 146, 685 P.2d 1293, 1298 (1984);
State v. McCall, 139 Ariz. 147, 159, 677 P.2d 920, 932 (1983).
Because Lamar cannot even establish misconduct, we reject his claim
that the prosecutor’s comments constitute fundamental error.
¶53 Additionally, Lamar argues that the prosecutor vouched
for Macchirella by expressing his opinion regarding Macchirella’s
statement that he felt low when Lamar yelled at him for using
Jones’s cellular telephone. During closing arguments, the
prosecutor stated:
[B]oth witnesses said that when Macchirella used the
phone [Lamar] told him that he was stupid, and
Macchirella’s statement to that was, it made me feel
smaller than I already feel. Well, that sounds like a
truthful statement, and it kind of just tells you what
kind of a person that Macchirella is. He’s not the
leader type. He sort of has an inferiority complex.
(Emphasis added.)
¶54 A prosecutor must not convey his personal belief about
the credibility of a witness. See, e.g., State v. White, 115 Ariz.
199, 204, 564 P.2d 888, 893 (1977). Although the prosecutor’s
italicized statement was inappropriate, its presence does not rise
to the level of fundamental error. The comment does not say that
24
Macchirella is generally a credible person whose entire testimony
should be accepted. Rather, when considered in context, the
prosecutor’s comment states only that Macchirella’s description of
his reaction to Lamar’s belittling comments “sounds like a truthful
statement.” Moreover, the trial court instructed the jury that the
lawyers’ closing arguments were not evidence. Arizona courts have
held that an instruction explaining to the jury that lawyers’
arguments are not evidence has ameliorated instances of
prosecutorial vouching more egregious than occurred here. See
State v. King, 110 Ariz. 36, 43, 514 P.2d 1032, 1039 (1973)
(holding prosecutor’s expression of personal opinion as to
defendant’s guilt and at least two avowals as to a witness’s
credibility did not prejudice the defendant, in part, because court
instructed jury that closing argument was not evidence); State v.
Taylor, 109 Ariz. 267, 274, 508 P.2d 731, 738 (1973) (holding
instruction that counsel’s argument was not evidence corrected any
prejudice due to prosecutor’s opinion as to credibility of a state
witness and defendant’s guilt); State v. Dillon, 26 Ariz. App. 220,
223, 547 P.2d 491, 494 (1976) (acknowledging prosecutor’s personal
opinion regarding a witness’s veracity improper but finding no
prejudice because of instruction that closing argument was not
evidence). Given both the limited context of the prosecutor’s
remarks and the court’s instruction, we conclude the prosecutor’s
comment does not constitute fundamental error.
25
V.
¶55 In Ring v. Arizona, 536 U.S. 584, ___, 122 S. Ct. 2428,
2443 (2002) (Ring II), the United States Supreme Court held
unconstitutional that portion of A.R.S. section 13-703 (2001) that
allowed judges to find facts that led to the aggravation of a
defendant’s sentence. The Court declared that “[c]apital
defendants, no less than non-capital defendants . . . are entitled
to a jury determination of any fact on which the legislature
conditions an increase in their maximum punishment.” Id. at ___,
122 S. Ct. at 2432. The Court reversed our decision in State v.
Ring, 200 Ariz. 267, 25 P.3d 1139 (2001) (Ring I), and remanded for
further proceedings consistent with its decision. Ring II, 536
U.S. at ___, 122 S. Ct. at 2443. Following the Ring II decision,
we consolidated all death penalty cases in which this court had not
yet issued a direct appeal mandate, including Lamar’s, and stated
that we would order supplemental briefing on sentencing issues
affected by Ring II after issuance of our decision in State v.
Ring, __ Ariz. __, 65 P.3d 915 (2003) (Ring III). We have directed
the parties to submit supplemental briefing in accordance with the
Ring III opinion and will address sentencing issues in a
supplemental opinion.
VI.
¶56 For the foregoing reasons, we affirm Lamar’s convictions
26
for first degree murder and kidnapping.
____________________________________
Ruth V. McGregor, Vice Chief Justice
CONCURRING:
____________________________________
Charles E. Jones, Chief Justice
____________________________________
Rebecca White Berch, Justice
____________________________________
Michael D. Ryan, Justice
____________________________________
William F. Garbarino, Judge*
*
The Honorable Andrew D. Hurwitz recused himself.
Pursuant to Article VI, Section 3 of the Arizona Constitution, the
Honorable William F. Garbarino, Judge of the Arizona Court of
Appeals, Division One, was designated to sit in Justice Hurwitz’s
place.
27