State v. Pledger ( 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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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, Appellee,
    v.
    JERMAINE PLEDGER, Appellant.
    No. 1 CA-CR 12-0604
    FILED 1-8-2015
    Appeal from the Superior Court in Maricopa County
    No. CR2011-005417-001
    The Honorable Robert E. Miles, Judge
    AFFIRMED
    COUNSEL
    Arizona Attorney General’s Office, Phoenix
    By Joseph T. Maziarz
    Counsel for Appellee
    Maricopa County Public Defender, Phoenix
    By Peg Green
    Counsel for Appellant
    MEMORANDUM DECISION
    Judge John C. Gemmill delivered the decision of the Court, in which
    Presiding Judge Maurice Portley and Judge Kent E. Cattani joined.
    G E M M I L L, Judge:
    STATE v. PLEDGER
    Decision of the Court
    ¶1             Jermaine Pledger appeals his convictions and sentences for
    conspiracy to commit possession of marijuana for sale, possession of
    marijuana for sale, armed robbery, kidnapping, misconduct involving
    weapons, misconduct involving body armor, and two counts of aggravated
    assault. Pledger argues the prosecutor engaged in misconduct when she
    vouched for a witness during closing argument and that the second count
    of aggravated assault could not be a class 2 felony because the State failed
    to prove Pledger knew the victim was a peace officer engaged in the
    execution of official duties. We have jurisdiction pursuant to Arizona
    Constitution, Article 6, Section 9, and Arizona Revised Statutes ("A.R.S.")
    sections 12-120.21(A) (2003), 13-4031 (2010) and 13-4033 (2010). We address
    the first issue — alleged prosecutorial misconduct in the form of vouching
    — in this memorandum decision. We address the second issue — involving
    statutory interpretation — in a published opinion filed contemporaneously
    with this decision.      For the reasons explained below and in the
    accompanying opinion, we affirm Pledger's convictions and sentences.
    BACKGROUND
    ¶2            Pledger sought to purchase approximately 170 pounds of
    marijuana from “Ruiz.” Led by Pledger, Ruiz eventually drove a vehicle
    containing 170 pounds of marijuana to a residence. Ruiz parked the vehicle
    in the garage, and Pledger closed the garage door. As Ruiz walked into the
    residence from the garage, another person struck Ruiz in the chest with a
    handgun and told him it was “a rip,” meaning they were going to steal the
    marijuana. Pledger and two other armed men then held Ruiz in the
    residence at gunpoint. Pledger and his accomplices were unaware that
    Ruiz was a paid informant working with an undercover police officer who
    was observing the residence from an unmarked car parked up the street.
    ¶3           Believing they would kill him, Ruiz fled through the back
    door of the residence when the opportunity arose. Pledger and his two
    accomplices then fled the house. Pledger and one accomplice fled in
    Pledger’s vehicle, while the third accomplice fled in Ruiz’s vehicle with the
    marijuana.
    ¶4            Ruiz ran to the undercover officer and informed him it was a
    “drug rip.” The officer and Ruiz pursued Pledger’s vehicle and eventually
    found it stopped in an industrial cul-de-sac. The officer stopped his vehicle
    up the street from the cul-de-sac, retrieved a bullet-proof-vest from the
    trunk and put it on in a manner that he hoped would allow Pledger and his
    accomplice to see the word “POLICE” emblazoned in yellow letters on the
    2
    STATE v. PLEDGER
    Decision of the Court
    vest. Because he was in plain clothes, the officer hoped this would prevent
    Pledger and his accomplice from taking any action against them.
    ¶5            After the officer got back in his vehicle, Pledger drove straight
    at him. As Pledger’s car approached, Pledger lowered his driver’s window,
    held a gun out the window, and pointed it at the officer. Although the
    officer feared that Pledger would shoot, Pledger drove past the officer’s
    vehicle without firing. Other officers eventually apprehended Pledger.
    ALLEGED PROSECUTORIAL MISCONDUCT
    ¶6             Pledger contends the prosecutor engaged in misconduct
    during her rebuttal argument when she allegedly vouched for the
    credibility of Ruiz.
    ¶7            In his closing argument, Pledger’s counsel argued, “Well, we
    know before [Ruiz] ever was brought into this that he lied to police twice.
    So we have a liar to start. So we have a liar coming into this courtroom
    when another man is on trial, and you're just supposed to accept what he
    says because he's in the courtroom? Think about that.” Pledger’s counsel
    continued, “Basically, what I'm saying is that you need to disregard
    everything that he said, because that's justice. Think about that person that
    testified. Think about the inconsistencies he talked about, okay, and let me
    talk about those.” After counsel discussed alleged inconsistencies in Ruiz’s
    testimony, he argued, “Do we, as a society, as a criminal justice system, use
    that to convict somebody? Is that what we do?”
    ¶8           After he discussed more alleged inconsistencies in Ruiz's
    testimony, Pledger’s counsel further argued:
    Let’s talk about the ridiculous things that [Ruiz] says that
    trump everything else that he says, where you cannot derive
    or find a fact from him.
    He goes on a monologue about how the police get no credit.
    They risk their lives every day. He talks about he’s found the
    love of his life and this is why he’s snitching out Jermaine
    Pledger, because he found the love of his life.
    And then he tries to cry. I didn’t see any tears. I saw him
    trying to cry. That’s ridiculous. Does that trump everything
    else that he talks about? This is serious. This is a serious
    situation, a man is on trial. Are we going to accept that? Can
    you accept that?
    3
    STATE v. PLEDGER
    Decision of the Court
    Can you accept his credibility, period? You can’t. He’s
    working for cash. He’s working for straight cash. He keeps
    working after this happens. He gets pulled over. He’s facing
    potential charges. And there’s motive, bias – you look at the
    credibility of witnesses instruction – all over the place.
    What I submit to you is certain ridiculous things that he said
    in this trial that, using your common sense, you could almost
    laugh at. That trumps the rest of his testimony to the extent
    you need to reject it, because it’s not fair to try to derive facts
    from it otherwise. That’s not justice.
    ¶9           In rebuttal, the prosecutor argued:
    [Ruiz] stood in this courtroom, right where I’m standing, held
    his hand up and swore to tell the truth. He was honest with
    you when he told you that he lied to the police when he was
    stopped with $30,000 in his car. He was honest with you in
    telling you that the lied to the police when he had 80 pounds
    of marijuana in his car. He was honest with you when he told
    you that at that point in his life he was working for a drug
    trafficking organization, and he was honest with you when he
    relayed the events that happened between January 26th, 2011
    and February 16th, 2011.1
    ¶10           Pledger argues this portion of the prosecutor’s rebuttal
    vouched for the credibility of Ruiz. “Two forms of impermissible
    prosecutorial vouching exist: (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.
    In addition, a lawyer is prohibited from asserting personal knowledge of
    acts in issue before the tribunal unless he testifies as a witness.” State v.
    Bible, 
    175 Ariz. 549
    , 601, 
    858 P.2d 1152
    , 1204 (1993). Pledger argues the
    prosecutor’s rebuttal placed the prestige of the government behind Ruiz
    and constituted an expression of the prosecutor’s personal opinion that
    Ruiz was truthful.
    ¶11           Pledger concedes, however, that he raised no objection below.
    A failure to object to alleged prosecutorial misconduct at the time of trial
    waives the issue absent fundamental error. State v. Wood, 
    180 Ariz. 53
    , 66,
    1 This is the only portion of the prosecutor’s argument Pledger identified
    as improper in his opening brief.
    4
    STATE v. PLEDGER
    Decision of the Court
    
    881 P.2d 1158
    , 1171 (1994). “To establish fundamental error, [a defendant]
    must show that the error complained of goes to the foundation of his case,
    takes away a right that is essential to his defense, and is of such magnitude
    that he could not have received a fair trial.” State v. Henderson, 
    210 Ariz. 561
    , 568, ¶ 24, 
    115 P.3d 601
    , 608 (2005). Even when a defendant has
    established fundamental error, the defendant must still demonstrate the
    error was prejudicial. 
    Id. at ¶
    26. In the context of whether a prosecutor’s
    conduct amounts to fundamental error, we focus our inquiry on the
    probability the conduct influenced the jury and whether the conduct denied
    the defendant a fair trial. 
    Wood, 180 Ariz. at 66
    , 881 P.2d at 1171. “The focus
    is on the fairness of the trial, not the culpability of the prosecutor.” 
    Bible, 175 Ariz. at 601
    , 858 P.2d at 1204.
    ¶12           We find no error, fundamental or otherwise. Prosecutors
    have wide latitude in presenting closing arguments. State v. Jones, 
    197 Ariz. 290
    , 305, ¶37, 
    4 P.3d 345
    , 360 (2000). A prosecutor may characterize a
    witness as truthful when the argument is sufficiently linked to the evidence
    and the prosecutor does not place the prestige of the government behind
    the witness or suggest that information not before the jury supports the
    testimony. See State v. Corona, 
    188 Ariz. 85
    , 91, 
    932 P.2d 1356
    , 1362 (App.
    1997).
    ¶13           Further, “[p]rosecutorial comments which are fair rebuttal to
    comments made initially by the defense are acceptable.” State v. Duzan, 
    176 Ariz. 463
    , 468, 
    862 P.2d 223
    , 228 (App. 1993). Here, the prosecutor’s
    argument was a fair rebuttal to Pledger’s counsel’s attack on Ruiz’s
    credibility. The prosecutor’s argument addressed evidence introduced at
    trial that counsel referenced directly and indirectly in his attack on Ruiz:
    how Ruiz admitted he lied to police when stopped with $30,000 in his car,
    how Ruiz admitted he lied to police when he was later stopped with a large
    quantity of marijuana in his car, and how Ruiz admitted he had worked for
    a drug organization. It was fair rebuttal for the prosecutor to argue that
    Ruiz’s honesty regarding this unfavorable evidence showed he was also
    honest when he testified about the events that led to the charges against
    Pledger. Further, the prosecutor did so in a manner that did not place the
    prestige of the government behind Ruiz, did not suggest that information
    not before the jury supported Ruiz’s testimony, and did not express the
    prosecutor’s personal opinion.
    CONCLUSION
    ¶14           For the reasons stated in the accompanying opinion and
    herein, we find no error and we affirm Pledger’s convictions and sentences.
    5
    STATE v. PLEDGER
    Decision of the Court
    6
    

Document Info

Docket Number: 1 CA-CR 12-0604

Filed Date: 1/8/2015

Precedential Status: Non-Precedential

Modified Date: 4/18/2021