State v. Bravo ( 2015 )


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  •                          NOTICE: NOT FOR OFFICIAL PUBLICATION.
    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
    AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
    IN THE
    ARIZONA COURT OF APPEALS
    DIVISION ONE
    STATE OF ARIZONA, Appellant,
    v.
    JUAN CARLOS BRAVO,
    JOHN CARMEN BRAVO-MARTINEZ,
    JAIME BRAVO MARTINEZ, and
    NESTOR MANUEL PONCIANO, Appellees.
    Nos. 1 CA-CR 14-0253, 1 CA-CR 14-0257, 1 CA-CR 14-0262, 1 CA-CR 14-0263
    (Consolidated)
    FILED 10-15-15
    Appeal from the Superior Court in Maricopa County
    Nos. CR2013-002656-001, -003, -004, and -005
    The Honorable Bruce R. Cohen, Judge
    AFFIRMED
    COUNSEL
    Maricopa County Attorney’s Office, Phoenix
    By Karen Kemper
    Counsel for Appellant
    Maricopa County Public Defender’s Office, Phoenix
    By Christopher V. Johns
    Counsel for Appellee Juan Carlos Bravo
    Janelle A. McEachern, Attorney at Law, Chandler
    By Janelle A. McEachern
    Counsel for Appellee John Carmen Bravo-Martinez
    Michael J. Dew, Attorney at Law, Phoenix
    By Michael J. Dew
    Counsel for Appellee Jaime Bravo Martinez
    Droban & Company, P.C., Anthem
    By Kerrie M. Droban
    Counsel for Appellee Nestor Manuel Ponciano
    MEMORANDUM DECISION
    Judge Maurice Portley delivered the decision of the Court, in which Presiding
    Judge Patricia K. Norris and Judge Patricia A. Orozco joined.
    P O R T L E Y, Judge:
    ¶1            The State challenges the new trial the superior court granted to Juan
    Carlos Bravo, John Carmen Bravo-Martinez, Jaime Bravo Martinez, and Nestor
    Manuel Ponciano (collectively, “the Defendants”) after the jury’s verdict. For the
    reasons that follow, we affirm.
    FACTS AND PROCEDURAL BACKGROUND1
    ¶2             A complaint about music being played too loudly at a late-night
    backyard party in west Phoenix escalated into a citywide police call for help
    resulting in the deployment of seventy officers, and the arrest of five people, all
    relatives,2 on charges of riot; aggravated assault for touching with intent to injure,
    insult or provoke; and resisting arrest.
    ¶3             Officer M.L. testified that he went to the house and the homeowner
    refused to turn off the music and end the party. He stated that a crowd of
    partygoers massed at the front door, and quickly became hostile, using profanity
    and telling him to leave. One person at the front door, later identified as Ponciano,
    told the officer “he had a right to bear arms and he has guns,” which the officer
    took as a threat. An unidentified partygoer then threw a cup of beer at the officer,
    and the group shut the door when the officer used pepper spray.
    1 We view the trial evidence in the light most favorable to sustaining the jury’s
    verdicts. See State v. Nelson, 
    214 Ariz. 196
    , 196, ¶ 2, 
    150 P.3d 769
    , 769 (App. 2007).
    2 The jury acquitted Maria Bravo Ponciano, the fifth relative, of rioting, but was
    unable to reach a verdict on aggravated assault and resisting arrest charges.
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    STATE v. BRAVO, et al.
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    ¶4             Officer M.L. and several others, who had responded to his call for
    backup, subsequently entered the backyard, where several of the thirty to forty
    attendees yelled and cursed at the officers, told them they had no right to be there,
    and refused to comply with commands to sit down or disperse. In the resulting
    chaos, the four Defendants pushed various officers or threw items at them,
    resulting in their arrest and being charged.
    ¶5           The case went to trial. Jaime Bravo Martinez, Nestor Manuel
    Ponciano, and Juan Carlos Bravo testified on their own behalf and denied the
    allegations.
    ¶6             Following a forty-three day trial, the jury convicted: (a) Juan Carlos
    Bravo of aggravated assault for punching an officer; (b) Nestor Manuel Ponciano
    of aggravated assault for pushing an officer, and of resisting arrest; (c) Jaime Bravo
    Martinez of reasonable apprehension aggravated assault; and (d) John Carmen
    Bravo-Martinez of four counts of aggravated assault for throwing a jar at one
    officer and pushing others, one count of resisting arrest, and one count of rioting.
    All were for class 5 felonies, except for the resisting arrest convictions, which were
    class 6 felonies.
    ¶7             The Defendants asked for a new trial and, after briefing, the superior
    court granted their motion. The State timely filed notices of appeal from the
    court’s order.
    ¶8            The State subsequently moved to dismiss each of the cases without
    prejudice for purposes of appeal. The superior court dismissed the case against
    each Defendant without prejudice.
    DISCUSSION
    I.     Effect of Dismissal of Underlying Cases
    ¶9            Juan Carlos Bravo argues the dismissal of the underlying case
    deprives this court of jurisdiction and renders this appeal moot. We disagree.
    ¶10            The right to appeal can only be given or denied by constitution or
    statute. State v. Birmingham, 
    96 Ariz. 109
    , 111, 
    392 P.2d 775
    , 776 (1964). Here, the
    State has a statutory right to appeal from the superior court’s grant of the motions
    for new trial. Ariz. Rev. Stat. (“A.R.S.”) § 13-4032(2); 
    Birmingham, 96 Ariz. at 111
    ,
    392 P.2d at 776. Although the State did not need to dismiss the action before filing
    its appeal, an action we hope is not replicated, the constitution does not prohibit
    the procedure followed by the State. See State v. Million, 
    120 Ariz. 10
    , 14-16, 
    583 P.2d 897
    , 901-903 (1978). As a result, we conclude we have jurisdiction over the
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    STATE v. BRAVO, et al.
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    State’s appeal regardless of whether the case has been stayed or dismissed
    pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4032(2).
    ¶11            The Defendants argue the case is over because the State successfully
    asked that the charges be dismissed without prejudice. We disagree. Although
    the State dismissed the case without prejudice, if we were to find that the court
    erred, the effect would be to “return the case to the posture it was in . . . before the
    trial court ruled on defendant’s motion for new trial.” State v. Moya, 
    129 Ariz. 64
    ,
    65, 
    628 P.2d 947
    , 948 (1981). Similarly, the United States Supreme Court stated that
    if the State was successful on appeal, it would result “in the reinstatement of the
    general finding[s] of guilty, rather than in further factual proceedings relating to
    guilt or innocence.” United States v. Morrison, 
    429 U.S. 1
    , 3-4 (1976); see State v. West,
    
    226 Ariz. 559
    , 562, ¶ 13, 
    250 P.3d 1188
    , 1191 (2011) (stating that if the ruling is
    reversed on appeal, “the verdict of guilt can simply be reinstated”).
    ¶12           On the other hand, if we find the court did not abuse its discretion in
    granting the motion for new trial, we would simply affirm and remand the case
    back for the new trial. The State does not need to reindict the Defendants and start
    anew because we are leaving the parties in the same position they were when the
    State erroneously thought it had to dismiss the charges to challenge the court’s
    ruling. Consequently, the appeal is not moot and we will consider the merits. See
    Cardoso v. Soldo, 
    230 Ariz. 614
    , 617, ¶ 5, 
    277 P.3d 811
    , 814 (App. 2012) (“[W]e will
    dismiss an appeal as moot when our action as a reviewing court will have no effect
    on the parties.”).
    II.    Grant of New Trial
    ¶13           The superior court granted the Defendants’ motions for new trial.
    The court found that admission of evidence of the gun found on Juan Carlos Bravo
    was prejudicial and the cumulative impact of misstatements of evidence by the
    prosecutor throughout trial and during rebuttal argument, against a backdrop of
    “due process rights violations under the rationale of victims’ rights protections,”
    persuaded the court that the trial was neither fair nor constitutionally valid,
    requiring a new trial. Because of the length of the trial, however, the court
    “focused far more on a global consideration of the trial,” noting that, “[f]rom that,
    there remains the lingering question as to whether the trial, as conducted, was fair
    and consistent with the due process rights of each defendant . . . [t]his Court cannot
    envision a circumstance wherein a reviewing court could find that the trial in this
    matter was fair and constitutionally valid.” The court then announced it would
    set oral argument prior to the new trial “on the Rule 403 issues relating [to] the
    confiscated and previously admitted guns.”
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    STATE v. BRAVO, et al.
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    ¶14          The State argues the superior court abused its discretion by granting
    the Defendants a new trial because the refusal of the police-officer victims to be
    interviewed by the Defendants did not infringe upon the Defendants’ due process
    rights. The State also argues the misstatements identified by the superior court
    during the prosecutor’s rebuttal argument were not misstatements at all, and, in
    any case, were unintentional.
    A. Standard of Review
    ¶15             Arizona Rules of Criminal Procedure (“Rule”) 24.1(c)(5) provides
    that a trial court may grant a new trial if “[f]or any other reason not due to the
    defendant’s own fault the defendant has not received a fair and impartial trial . . . .”
    In fact, our supreme court has stated that “[m]isconduct alone will not cause a
    reversal, as a new trial should not be granted to punish counsel for his misdeeds,
    but [only] where the defendant has been denied a fair trial as a result of the actions
    of counsel . . . .” State v. Moore, 
    108 Ariz. 215
    , 222, 
    495 P.2d 445
    , 452 (1972). For
    example, a new trial will be warranted where a prosecutor’s improper remark calls
    to the jury’s attention a matter “that they would not be justified in considering in
    determining their verdict” and it must be probable that the remark influenced the
    jury’s verdict. State v. Hansen, 
    156 Ariz. 291
    , 296-97, 
    751 P.2d 951
    , 956-57 (1988).
    As a result, because the trial court is in the best position to determine whether an
    attorney’s remarks require a mistrial, or a new trial, we will not disturb the ruling
    absent an abuse of discretion. See 
    id. at 297,
    751 P.2d at 957. And we are mindful
    that the trial court has broad discretion to grant a new trial, and the appellant, in
    this case, the State, bears the burden of establishing that the record shows the court
    acted arbitrarily. State v. Villalobos, 
    114 Ariz. 392
    , 394, 
    561 P.2d 313
    , 315 (1977).
    ¶16            Moreover, if a motion for “new trial was granted on one or both of
    the grounds . . . the fact that it was incorrect on [one or] the other ground is
    immaterial.” State v. Turner, 
    92 Ariz. 214
    , 217, 
    375 P.2d 567
    , 568 (1962) (citing State
    v. White, 
    56 Ariz. 189
    , 191, 
    106 P.2d 508
    , 509 (1940)). Consequently, we will affirm
    the grant of new trial unless the State demonstrates the court acted arbitrarily.
    
    Villalobos, 114 Ariz. at 394
    , 561 P.2d at 315; cf. State v. Harrington, 
    27 Ariz. App. 663
    ,
    664, 
    558 P.2d 28
    , 29 (App. 1976) (stating that when trial court does not specify on
    which ground or combination of grounds it relied on in granting the motion, State
    has burden to demonstrate that none of the grounds urged in the motion for new
    trial are valid).
    B. Police Officers as Victims
    ¶17          The superior court found that the Defendants’ due process rights
    were violated by the “surprise nature of certain testimony” from the police-officer
    victims. Specifically, Defendants claimed the police-officer victims authored
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    STATE v. BRAVO, et al.
    Decision of the Court
    reports that only discussed what they did and saw, but not the actions of the other
    officers. Moreover, the police-officer victims refused to participate in defense
    interviews. In its ruling, the court noted that “there was a significant amount of
    relevant information testified to by various officers that was not included in police
    reports, despite being central to the [S]tate’s theory of the case.” And the court
    expressed concern that “the exercise of victims’ rights in this matter served to deny
    each defendant a fair trial.”
    ¶18            Police officers can be victims under the Victims’ Bill of Rights. See
    Ariz. Const. art. 2, § 2.1. A victim is defined as “a person against whom the
    criminal offense has been committed . . . .” Ariz. Const. art. 2, § 2.1(C). And like
    other victims, the officer-victims had the right to the protections of the Victims’
    Bill of Rights, including the right to refuse defense interviews or discovery
    requests. Ariz. Const. art. 2, § 2.1(5); A.R.S. § 13-4433(A); Douglass v. State, 
    219 Ariz. 152
    , 154, ¶ 9, 
    195 P.3d 189
    , 191 (App. 2008). Although they have certain rights
    as victims, those rights may, under certain circumstances, be required to yield to a
    defendant’s due process rights. See, e.g., State ex rel. Romley v. Superior Court
    (Roper), 
    172 Ariz. 232
    , 238-40, 
    836 P.2d 445
    , 451-53 (App. 1992) (holding that if
    medical records are found to be exculpatory and essential to present defense case
    or impeach the victim, due process requires their production).
    ¶19            Defendants have no constitutional right to pretrial discovery in a
    criminal case, except when the evidence is both exculpatory and material. See
    
    Roper, 172 Ariz. at 238
    , 836 P.2d at 451 (citations omitted); see also State v. Connor,
    
    215 Ariz. 553
    , 560-61, ¶ 21, 
    161 P.3d 596
    , 603-04 (App. 2007) (citations omitted).
    Rule 15.1 governs disclosure by the State and requires the prosecutor to disclose
    the police reports in his or her possession or control. Ariz. R. Crim. P. 15.1.
    However, Rule 15.1 does not regulate what the police officers write or include in
    the reports. In fact, police officers are not required to prepare reports, much less
    reports that cover every aspect of their anticipated testimony. The purpose of the
    police report is to outline what happened in order to help the prosecutors
    determine what charges to file. Once the charges are filed, the report is provided
    to the defense to understand how the police perceived the events. See State v.
    Seymour, 
    21 Ariz. App. 144
    , 146, 
    517 P.2d 102
    , 104 (App. 1973). The defense can
    also use the report to attempt to impeach the officers during trial if their testimony
    is inconsistent with any police report. See State v. Ashton, 
    95 Ariz. 37
    , 39, 
    386 P.2d 83
    , 84-85 (1963); State v. Preciado, 
    15 Ariz. App. 114
    , 116-17, 
    486 P.2d 226
    , 228-29
    (App. 1971). And, if need be, the report can also be used by the officer at trial to
    refresh his or her memory given that the report is written soon after the events and
    any trial takes place months or years later. Ariz. R. Evid. 803(5); State v. Smith, 
    215 Ariz. 221
    , 229, ¶ 29, 
    159 P.3d 531
    , 539 (2007).
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    STATE v. BRAVO, et al.
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    ¶20            Under the circumstances presented here, the Defendants’ due
    process rights were not violated because they could not interview the police-
    officer victims. And the record fails to demonstrate that any of the undisclosed
    evidence in this case was material or exculpatory. During trial, and to address the
    fact that the police-officer victims did not provide defense interviews, the court
    gave the Defendants “expansive cross examination” of the officer-victims to
    address discrepancies between what they had included and had not included in
    their incident reports. As a result, the Defendants, during cross-examination, were
    able to use many omissions or misstatements in the reports of the officer-victims
    to question their credibility, and to present a complete defense. Consequently,
    having reviewed the record, the Defendants’ due process rights were not violated
    nor were they denied a fair trial because the police reports did not cover all aspects
    of the police-officer victims’ anticipated testimony or because the officer-victims
    did not agree to defense interviews.
    C. Argument that Cross-Examination was Harassment
    ¶21            In reviewing the record, we find another issue concerning victims’
    rights that the court did not address: the prosecutor’s use of the victims’ rights as
    a sword during re-direct examination. During re-direct examination of Officer
    A.O., the prosecutor implied that defense counsel, by the extensive cross-
    examination, had violated the officers’ rights, as victims, to be free from
    intimidation and harassment. The Defendants objected moved for a mistrial.
    After finding that the prosecutor’s conduct had been improper, the court
    concluded that a mistrial was not warranted because the objection was
    immediately raised and the jury removed from the courtroom, preventing any
    unfair prejudice.
    ¶22           Victims are to be “treated with fairness, respect, and dignity, and to
    be free from intimidation, harassment, or abuse, throughout the criminal justice
    process.” Ariz. Const. art. 2, § 2.1(A)(1). The officer-victims, however, are not
    typical crime victims. Although police officers may become crime victims in the
    course of carrying out their duty, they also have an obligation, as part of their duty,
    to observe and collect evidence and then to testify about it, if required. And as a
    witness to the events, they can be cross-examined, even vigorously, about what
    they saw, what they heard, and what they did, as well as other relevant inquiry in
    an attempt to get all the relevant information to the jury for its consideration.
    ¶23           Here, although the court sustained the objection to the prosecutor’s
    statements, the implication that the cross-examination was improper and violated
    victims’ rights was both unprofessional and misstated the law — if an officer-
    victim refuses to be interviewed by the defense, the defense can cross-examine the
    officer-victim about his or her direct testimony and anything else that is relevant,
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    STATE v. BRAVO, et al.
    Decision of the Court
    and that touches on the person’s credibility and other factors, which may create
    reasonable doubt. If a lawyer thinks a question or some part of the cross-
    examination is problematic, an objection can be made, and the court will resolve
    the objection. But, a prosecutor, in seeking justice, should never imply that the
    cross-examination of a police officer, even as a victim, was improper because of
    the impact it can have on the jury.
    D. Bravo’s Gun.
    ¶24           We next turn to the prosecutor’s use of Juan Carlos Bravo’s gun and
    the court’s analysis in granting the motion for new trial. Bravo was not charged
    with any offense relating to his gun or the use of his gun during the incident.
    Moreover, no one testified that Bravo brandished the gun or told police that he
    had one before he was arrested.3 It was only sometime after Bravo was arrested
    and handcuffed, that an officer noticed a handgun sticking out of his waistband in
    plain view and seized it.
    ¶25           Bravo moved to preclude the admission of his gun. In response, the
    State conceded that the gun did not figure in any charges, but argued that it was
    relevant to the state of mind of the officers, “the reason why most officers reacted
    the way they reacted, did the things they did and took the safety precautions that
    they did was, the very reason was because there was talk about guns, threats with
    guns.” The court found that the gun was relevant to whether the actions of the
    police were reasonable and that unfair prejudice did not substantially outweigh
    its probative value and denied Bravo’s motion.
    ¶26           The prosecutor did not, however, just question the witnesses about
    finding Bravo’s gun after his arrest. Instead, the prosecutor asked questions about
    the presence of guns and children at a late-night party, which generated numerous
    questions from the jury about who had guns, why and whether they usually
    carried them. The questions prompted an unsuccessful motion for mistrial, and
    3  The State had charged Ponciano with aggravated assault for allegedly
    threatening Officer T.B. with a gun, and evidence of his gun was admitted without
    objection. The officer testified that while he was standing on a wall looking into
    the backyard, Ponciano told him he had a gun and he could shoot the officer for
    trespassing, and reached under his shirt as if to get his gun. Officer B.M., who
    helped Officer T.B. arrest Ponciano, however, testified that he learned of
    Ponciano’s handgun and retrieved it from his waistband only because Ponciano
    informed him of its presence as he was being led away in handcuffs. The jury
    acquitted Ponciano of the aggravated assault charge based on threatening Officer
    T.B. with the gun.
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    STATE v. BRAVO, et al.
    Decision of the Court
    led to a stipulation that no evidence was introduced showing that John Carmen
    Bravo-Martinez had a gun. The court also instructed the jury that it is legal to
    carry a concealed firearm in Arizona, and the law does not require anyone to give
    a reason justifying the decision to carry a weapon.
    ¶27           In resolving the motion for new trial, the superior court found that
    the prosecutor’s use of Bravo’s gun, that was only discovered after he was
    arrested, created undue prejudice because the prosecutor misused the gun
    evidence to inflame the jurors’ passions, particularly in rebuttal closing, and
    tainted all Defendants and contributed to doubts about the fairness of the trial.
    Based on the record, and the absence of evidence that the court acted arbitrarily,
    we cannot say that the court abused its discretion in concluding in hindsight that
    the prosecutor’s use of the admission of Bravo’s gun created unfair prejudice
    which warranted a new trial.
    E. Misstatements and Mischaracterizations of Evidence
    ¶28           The superior court also found that the numerous “misstatements
    and mischaracterizations” of evidence by the prosecutor during trial and in closing
    arguments deprived Defendants of a fair trial. For example, the prosecutor’s use
    of the gun evidence in closing arguments was misleading. In her initial closing
    argument, the prosecutor ended her summation of the evidence supporting the
    charges against Juan Carlos Bravo by noting that he was found in possession of
    “[t]his handgun” after he was arrested, notwithstanding the fact that he had not
    been not charged with any offense involving a handgun. The superior court, in its
    new trial ruling, noted that the prosecutor also improperly suggested in rebuttal
    argument that Bravo’s gun was “actually part of the aggravated assault” charge.
    ¶29           The court’s finding that the prosecutor used the gun in rebuttal
    argument to demonstrate conduct that “was not supported by the evidence” and
    “appeared designed to feed into the passions of the jurors” was also justified.
    Insofar as the trial record shows, the prosecutor picked up the gun seized from
    Bravo and the one seized from Ponciano, and referred to the “charges” involving
    guns and the use of the guns to threaten officers; ostensibly, referring to the
    charges against Ponciano for allegedly reaching for a gun, and against Maria
    Bravo, for allegedly attempting to seize an officer’s gun. The prosecutor also
    apparently gestured with one of the guns to indicate — contrary to the evidence
    — that it was actually pointed at an officer. The judge sustained an objection at
    the time, and cautioned the prosecutor at a bench conference that her argument
    was crossing the line on an issue “that’s been very closely scrutinized to begin
    with. So I’d like you to really be careful sticking with the facts about the guns,”
    noting that both her argument and her demonstration were misleading.
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    STATE v. BRAVO, et al.
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    ¶30           Given the court’s role as the “thirteenth juror” when resolving a
    motion for new trial, the court’s findings are supported by the record. See
    Hutcherson v. City of Phoenix, 
    192 Ariz. 51
    , 55, ¶ 23, 
    961 P.2d 449
    , 453 (1998) (quotes
    omitted). As a result, we cannot say that the court abused its discretion in
    concluding that the prosecutor’s arguments about Bravo’s gun tainted all of the
    Defendants and contributed to the necessity for a new trial.
    ¶31            In granting the motion for new trial, the superior court also
    considered the fifteen objections to the prosecutor’s rebuttal argument that were
    sustained on various grounds, including misstatement of the evidence. The chart
    the State included in its opening brief identifying the evidence at trial supporting
    each of the identified arguments is not persuasive. In some cases, the chart
    misstates what the prosecutor said that gave rise to the objection; in others, the
    chart cites inapposite evidentiary support; and in others, it takes objections out of
    context and ignores the court’s explanations, when offered, of why the court found
    the arguments objectionable. In all but two instances, which were insignificant,
    cited by the judge, the record confirms that the prosecutor misstated or misused
    the evidence. Having reviewed the entire record, including the objections to the
    prosecutor’s questions and arguments, and mindful of our discretionary review,
    we conclude that the court acted within its discretion in sustaining the objections.
    ¶32            We further conclude that the large number of misstatements and
    misuse of evidence, as well as the improper questions and argument, deprived the
    Defendants of a fair trial, notwithstanding the superior court’s finding that the
    prosecutor did not intentionally engage in misconduct. If the court had found the
    conduct was intentional prosecutorial misconduct, double jeopardy would have
    prevented a retrial; but it is not necessary to apply the cumulative error doctrine
    because it is the impact of the conduct on the jury, rather than the intention of the
    prosecutor, that is at issue. See Pool v. Superior Court, 
    139 Ariz. 98
    , 108-09, 
    677 P.2d 261
    , 271-72 (1984) (double jeopardy bars retrial if mistrial was caused by the
    prosecutor’s intentional misconduct); cf. State v. Hughes, 
    193 Ariz. 72
    , 79, ¶ 26, 
    969 P.2d 1184
    , 1191 (1998) (cumulative error doctrine is recognized in context of
    prosecutorial misconduct because “a defendant must demonstrate that the
    prosecutor’s misconduct so infected the trial with unfairness as to make the
    resulting conviction a denial of due process.”).4 And although the judge twice
    instructed the jury that the attorneys’ arguments were not evidence, and found
    that the prosecutor did not intentionally misstate the evidence, the judge did not
    abuse his discretion in concluding that the misstatements had a “cumulative
    impact on the jury,” because “when objectionable questions or misstatements are
    4 Moreover, “[t]he law cannot reward ignorance; there must be a point at which
    lawyers are conclusively presumed to know what is proper and what is not.” 
    Pool, 139 Ariz. at 107
    , 677 P.2d at 270.
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    STATE v. BRAVO, et al.
    Decision of the Court
    repeated over and over again,” particularly in rebuttal argument, sustaining
    objections and instructing the jury “has a less curative effect.”
    CONCLUSION
    ¶33          Based on the foregoing, we affirm the order granting a new trial for
    the four Appellees.
    :jt
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