State v. Redondo ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
CHRISTOPHER ANGEL REDONDO, Appellant.
No. 1 CA-CR 19-0298
FILED 9-2-2021
Appeal from the Superior Court in Maricopa County
No. CR2010-106178-002
The Honorable David O. Cunanan, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Andrew S. Reilly
Counsel for Appellee
KBUnited LLC, Phoenix
By Kerrie M. Nelson
Counsel for Appellant
STATE v. REDONDO
Decision of the Court
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge David B. Gass joined.
B R O W N, Judge:
¶1 Christopher Angel Redondo appeals his convictions and
sentences for first-degree murder, aggravated assault, and drive-by
shooting. He argues the trial court erred by denying his motions for
mistrial and admitting irrelevant evidence during the trial’s penalty phase.
Because no reversible error occurred, we affirm.
BACKGROUND
¶2 Lieutenant E.S. initiated a traffic stop of a utility truck in the
Town of Gilbert. Daimen Irizarry was driving the truck, with Redondo as
a passenger. When E.S. approached the truck’s passenger side, Redondo
fatally shot him in the face. Irizarry and Redondo sped off. Nearby officers
who heard the gunshot found E.S. on the ground and reported an “officer
down.”
¶3 Multiple law enforcement officers responded and followed
the truck for approximately 60 miles, where they ultimately apprehended
Redondo and Irizarry in a small community known as Top of The World.
During the high-speed chase, Redondo climbed into the bed of the truck
and tossed heavy tools and equipment—including a “full size generator”—
into the path of the pursuing officers. Redondo also shot at the officers.
¶4 The State charged Redondo with one count of first-degree
murder, four counts of drive-by shooting, and 19 counts of aggravated
assault. The State subsequently filed its notice of intent to seek the death
penalty.
¶5 Following a 43-day trial, the jury found Redondo guilty of
first-degree murder, five counts of aggravated assault, and two counts of
drive-by shooting, but acquitted him of the remaining charges. Although
the jury subsequently found two aggravating circumstances, thus making
Redondo eligible for the death penalty, the jury recommended Redondo be
sentenced to life imprisonment. The trial court imposed consecutive
sentences: natural life for the first-degree murder conviction followed by
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presumptive prison terms for the remaining counts. Redondo timely
appealed, and we have jurisdiction under A.R.S. §12-120.21(A)(1).
DISCUSSION
I. Motions for Mistrial
¶6 Redondo challenges the trial court’s denial of his motions for
mistrial. In those motions, Redondo argued a witness provided improper
testimony, and the trial judge and prosecutor engaged in misconduct. We
will reverse the court’s rulings only for an abuse of discretion that is
“palpably improper and clearly injurious.” State v. Murray, 184 Ariz. 9, 35
(1995) (quotation and citation omitted). The court’s discretion in such
matters is broad because it “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 (2000). “A declaration of a mistrial . . . is the most
dramatic remedy for trial error and should be granted only when it appears
that justice will be thwarted unless the jury is discharged and a new trial
granted.” State v. Dann, 205 Ariz. 557, 570, ¶ 43 (2003) (quotation and
citation omitted).
A. Testimony
¶7 Redondo first argues he was entitled to a mistrial because a
police officer testified Redondo was a “murderer.” The record shows
otherwise. In response to defense counsel’s question regarding previous
experience with “shootings where an officer died,” the officer responded,
“I’m not recalling an incident where an officer was murdered that I was
involved in.” Thus, although perhaps nonresponsive, the testimony
implied at most that E.S. was murdered, not that Redondo was the
murderer. And the fact that E.S. was shot and killed was not disputed at
trial. No error occurred.
B. Judicial Misconduct
¶8 Redondo next argues the court should have granted his
mistrial motions that alleged instances of judicial misconduct.
¶9 The right to a fair trial necessarily includes “the right to have
the trial presided over by a judge who is completely impartial and free of
bias or prejudice.” State v. Neil, 102 Ariz. 110, 112 (1967). “Bias and
prejudice mean a hostile feeling or spirit of ill will, or undue friendship or
favoritism, toward one of the litigants.” State v. Hill, 174 Ariz. 313, 322
(1993). But “[j]udicial rulings alone do not support a finding of bias or
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partiality without a showing of an extrajudicial source of bias or deep-
seated favoritism.” See State v. Macias, 249 Ariz. 335, 342, ¶ 22 (App. 2020).
Judges are presumptively impartial, and overcoming that presumption
requires proof of actual, not speculative, bias. Id.¶10 Redondo first points to the following exchange as defense
counsel cross-examined a witness:
[DEFENSE COUNSEL]: . . . Let me show you what’s been
marked as Exhibits 105 through 117. . . .
[PROSECUTOR]: And I have no objection to the admission
of all of those.
THE COURT: Do you want to move them in, counsel?
[DEFENSE COUNSEL]: No, judge. I’m going to ask [the
witness] questions first.
THE COURT: So do you want them moved into evidence?
[DEFENSE COUNSEL]: I don’t know. I don’t know if he can
identify them. He may not be the proper person to ask the
question. Why would I -- that’s why I -- I never got to
interview him. This is -- this is my time to find out what he
knows.
[DEFENSE COUNSEL]: Can -- can you look at that set of
photos, sir?
THE COURT: So why would you want him to look at them if
you don’t want -- whatever. Go ahead.
[DEFENSE COUNSEL]: Certainly Judge. I’ll be happy to
answer it. I don’t know whether he can identify those photos.
Why would I move in photos that this witness didn’t see?
[PROSECUTOR]: I’m moving them in.
[DEFENSE COUNSEL]: It doesn’t matter if he’s moving them
in. He doesn’t move them in in the middle of my --
THE COURT: Well, counsel --
[DEFENSE COUNSEL]: -- cross-examination.
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Decision of the Court
THE COURT: -- if you -- he’s not moving them in. He just
said he had no objection to them moved into evidence. And,
in essence, he’s willing to waive that foundational
requirement. So, do you want them in or you don’t want
them in?
[DEFENSE COUNSEL]: Not yet, sir.
THE COURT: All right. Go ahead, counsel.
[DEFENSE COUNSEL]: I’m -- Judge, the Court just looked at
the jury and kind of shrugged. And I don’t understand what
the issue is. I truly don’t. I -- I believe that it’s detrimental to
my client’s case what -- what was just conveyed by the Court.
THE COURT: Well, first of all, the Court conveyed nothing.
I simply said that he’s not objecting to them. So if you want
the witness to testify to them, without him having to look at
every one and go everyone, he’s willing to allow you to do it.
So, I don’t know why you wouldn’t just do that.
[DEFENSE COUNSEL]: I’ll tell you what. If -- if that’s what
the Court wants -- I mean, I do my things my way. But if the
Court is telling me that somehow I’m wrong, then I’ll do it the
Court’s way. . . . [B]ut the fact [is] that he didn’t object. I
didn’t move them into evidence. So why is he -- why is he
stating an objection or nonobjection when I didn’t move them
in.
THE COURT: Do exactly what you want to do, counsel.
¶11 According to Redondo, the foregoing illustrates the trial court
scolded and belittled defense counsel. When presented with Redondo’s
request for a mistrial, the court rejected such characterizations of the
exchange. Redondo renewed his motion for mistrial, arguing the court
exhibited actual bias by favorably treating the State when it employed a
similar trial strategy. Again, the court denied the motion, rejecting
Redondo’s characterizations.
¶12 First, we disagree with Redondo’s assertion that the trial court
treated the State more favorable on the same issue. Redondo appears to be
referring to a prior situation at trial when the court allowed the State to ask
a witness to examine exhibits that had not yet been admitted into evidence.
Redondo argues this is exactly what he tried to do in the exchange quoted
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Decision of the Court
above, but contends he received a lecture in front of the jury while the State
was allowed to proceed without question. However, when the State had
asked a witness to examine unadmitted documents, the State also informed
the court it would move the documents into evidence as soon as the witness
was finished looking at them. When defense counsel tried to do the same,
he told the court he was not yet sure whether he wanted to admit the
exhibits, prompting the court to inquire why defense counsel wanted the
witness to look at the exhibits in the first place.
¶13 Although the cold record seems to indicate the trial judge
exhibited frustration and some impatience with defense counsel, it does not
show what led to defense counsel’s strident refusal to accept the court’s
offer to admit the photos when the State indicated it had no objection.
Regardless, and even though it would have been better if this exchange
would have occurred outside the presence of the jury, Redondo does not
come close to meeting his burden of showing actual bias or prejudice on the
part of the judge. See Liteky v. United States, 510 U.S. 540, 555–56 (1994) (“Not
establishing bias or partiality, however, are expressions of impatience,
dissatisfaction, annoyance, and even anger, that are within the bounds of
what imperfect men and women . . . sometimes display.”); State v. Hill, 174
Ariz. 313, 323 (1993) (“Even the best trial judge can run short on patience
and turn from diplomacy to exasperation. While patience is a virtue, trial
judges are human, and we recognize the difference between irritation and
favoritism.”); State v. Curry, 187 Ariz. 623, 631 (App. 1996) (“At best,
defendant can show only that some antagonism existed between his
counsel and the trial judge. This is insufficient to support a recusal
motion.”). Thus, the trial court did not abuse its discretion by refusing to
grant a mistrial.
¶14 Redondo next refers us to defense counsel’s questioning of a
witness about digital recordings of the police radio transmissions that were
broadcast during the traffic stop and subsequent pursuit. The witness
testified that one of the discs displayed the following error message when
inserted into a computer: “Caution: This voice printed pack-and-go file has
either been corrupted or tampered with. Invalid file size.” Counsel then
questioned the witness about the error message and “tampered” files. The
following ensued:
[DEFENSE COUNSEL]: And what was the reason for the
stop, as you understood it, based on your investigation?
[PROSECUTOR]: Objection. Hearsay.
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Decision of the Court
THE COURT: Sustained.
[DEFENSE COUNSEL]: Actually, present sense impression,
Your Honor. It’s an exception.
[PROSECUTOR]: I’m going to object to counsel’s argument.
THE COURT: I’ll sustain the objection, counsel. Didn’t you
just argue that these are all corrupt and tampered with?
[DEFENSE COUNSEL]: I’m sorry, Judge. Did I -- did I argue
to anyone it was corrupt? I asked him questions. I haven’t
argued to the jury, nor have I argued to you, nor have I argued
to counsel. I simply asked questions.
THE COURT: The objection is sustained, counsel. Next
question, please.
[DEFENSE COUNSEL]: Actually, I’m going -- I’m going to
move for a mistrial at this point in time because this Court has
indicated that somehow I’ve been arguing --
THE COURT: It’s overruled, counsel. Next question, please.
(Emphasis added.)
¶15 Redondo contends the trial court’s reference to defense
counsel “arguing” the files were “corrupted and tampered with”
constituted an improper reprimand of counsel in front of the jury and
exhibited the court’s bias in favor of the State. As an initial matter, whatever
impropriety occurred can, at least partly, be attributed to defense counsel’s
unwarranted failure to abide by the court’s initial ruling sustaining a
hearsay objection. And the court previously warned counsel that speaking
objections were not allowed. Instead of simply acknowledging the ruling
and proceeding accordingly, defense counsel challenged it.
¶16 Furthermore, the court was justifiably concerned with
defense counsel’s focus on the “tampered” files. As the court noted, defense
counsel introduced into evidence a written summary of police radio
recordings pertaining to the stop and pursuit. The summary’s author had
testified it was a “compilation of everybody’s radio tapes.” The court
admitted the summary into evidence, over the State’s hearsay objection, on
the basis the summary was a true and accurate copy, the witness had
listened to the recordings, “and that all was correct.” The court reasonably
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Decision of the Court
concluded defense counsel’s references to the files as “corrupted” or
“tampered with” was an improper attempt to establish a factual basis for
challenging the accuracy of the radio recordings. We discern no
inappropriate reprimand of defense counsel or bias in favor of the State,
and a mistrial on that basis was not warranted.
¶17 The final allegation of judicial misconduct relates to the trial
court’s response, “I agree with that,” to the prosecutor’s objection during
defense counsel’s closing argument. Redondo does not argue the court’s
ruling was substantively incorrect; rather, he contends the phrase “I agree
with that” illustrated the court’s bias. We disagree. The court’s statement
“I agree with that” is not so different from merely saying “sustained” that
it overcomes the presumption of judicial impartiality. See Curry, 187 Ariz.
at 631 (“[W]e fail to understand how adverse rulings to which a party
assigns no error can nevertheless amount to bias on the part of the judge.”).
The court properly denied Redondo’s motion for mistrial.
C. Prosecutorial Misconduct
¶18 Redondo argues he was entitled to a mistrial based on two
instances of alleged prosecutorial misconduct during closing arguments.
“To prevail on a claim of prosecutorial misconduct, 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.”
State v. Morris, 215 Ariz. 324, 335, ¶ 46 (2007) (quotation and citation
omitted). “We evaluate each instance of alleged misconduct,” and also look
to the cumulative effect. Id. at 335, ¶ 47. When the defendant properly
objects at trial, as here, we will reverse only if the defendant can show “(1)
misconduct exists and (2) ‘a reasonable likelihood exists that the
misconduct could have affected the jury’s verdict, thereby denying
defendant a fair trial.’” State v. Murray, 250 Ariz. 543, 548, ¶ 13 (2021)
(citation omitted).
¶19 Redondo first directs us to the following comment the
prosecutor made in his initial closing argument:
Now the two angels that you see riding in the - - in the truck,
those are from Heaven. You know, don’t look at what they
did. I mean, they’re angels. Don’t you see that they’re angels?
I mean, they’re at the Top of the World; aren’t they? Isn’t that
where they’re leading them to, the Top of the World? Don’t
look at their conduct. Look at these bad people that are
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Decision of the Court
coming from the bottom. It’s almost Biblical the way it was
presented.
¶20 Although we agree the statement was hyperbole, it was
nonetheless an appropriate response to Redondo’s trial evidence that
focused on apparent improprieties related to how law enforcement
conducted the pursuit and apprehension in this case. Moreover, the
statement falls within the wide latitude prosecutors have in presenting their
closing arguments. See State v. Jones, 197 Ariz. 290, 305, ¶ 37 (2000)
(“Excessive and emotional language is the bread and butter weapon of
counsel’s forensic arsenal . . . .”). Finally, immediately after Redondo
objected to the statement the trial court instructed the jury that the
attorneys’ statements during closing arguments are not evidence or the law.
The statement did not rise to the level of prosecutorial misconduct.
¶21 The second instance of purported misconduct occurred when
the prosecutor incorrectly stated, as a prerequisite for asserting the shooting
was justified based on self-defense, Redondo had to admit he “killed” E.S.
See State v. Carson, 243 Ariz. 463, 467, ¶ 16 (2018) (“We conclude that if the
slightest evidence supports a finding of self-defense, the prosecution must
prove its absence, even if the defendant asserts a misidentification
defense.”). The prosecutor, however, corrected the misstatement of law
during his rebuttal argument:
The State will agree with one issue that was presented by the
defendant or that portion of the presentation, and it deals
with the justification instruction. It is true that with regards
to that instruction, it does not indicate that an individual must
admit the act before they avail themselves of the justification
instruction.
¶22 Given the prosecutor’s correction, in addition to the trial
court’s repeated admonishment to the jurors that their written instructions
contain the applicable law, the incorrect statement of law regarding self-
defense was cured. See State v. Patterson, 230 Ariz. 270, 276, ¶ 25 (2012)
(concluding that jury instructions and the prosecutor’s subsequent
correction of error cured a misstatement of law). A mistrial was not
warranted.
II. Penalty Phase Evidence
¶23 During the State’s rebuttal in the penalty phase, over
Redondo’s objection the trial court admitted recordings of phone calls
Redondo made from jail while awaiting trial. Redondo argues the recorded
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conversations were irrelevant. Redondo also contends the court erred by
submitting the recordings to the jury during its deliberations.
¶24 “[E]vidence that is inadmissible during the guilt phase may
be admissible during the penalty phase if it rebuts the defendant’s
mitigation and is not unfairly prejudicial.” State v. Burns, 237 Ariz. 1, 29,
¶ 130 (2015). Here, Redondo’s mitigation evidence included expert
opinions that he suffered from psychosis and other mental illnesses. In the
recorded phone calls, however, Redondo was calm, lucid, and rational.
Based on the mitigation evidence, admission of the recordings was proper
to support a rebuttal argument that Redondo was malingering.
¶25 Finally, we reject Redondo’s argument that the jury was not
entitled to access the recordings during deliberations. This court has
repeatedly upheld the right of deliberating jurors to review recordings
admitted into evidence. See e.g., State v. Lichon, 163 Ariz. 186, 193 (App.
1989) (videotapes); State v. Snowden, 138 Ariz. 402, 404 (App. 1983)
(audiotape).
CONCLUSION
¶26 We affirm Redondo’s convictions and sentences.
AMY M. WOOD • Clerk of the Court
FILED: AA
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