State v. Garwo ( 2016 )


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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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
    RUFUS YOUTY GARWO, Appellant.
    No. 1 CA-CR 15-0577
    FILED 9-13-2016
    Appeal from the Superior Court in Maricopa County
    No. CR2014-000192-001
    The Honorable Annielaurie Van Wie, Judge Pro Tempore
    AFFIRMED
    COUNSEL
    Arizona Attorney General's Office, Phoenix
    By Alice Jones
    Counsel for Appellee
    Maricopa County Public Defender's Office, Phoenix
    By Nicholaus Podsiadlik
    Counsel for Appellant
    STATE v. GARWO
    Decision of the Court
    MEMORANDUM DECISION
    Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
    which Judge Jon W. Thompson and Chief Judge Michael J. Brown joined.
    J O H N S E N, Judge:
    ¶1            Rufus Youty Garwo appeals his convictions of aggravated
    driving under the influence of intoxicating liquor ("DUI") while his license
    was suspended and aggravated DUI with a blood alcohol concentration
    ("BAC") of .08 or higher, each a Class 4 felony. For the reasons that follow,
    we affirm.
    FACTS AND PROCEDURAL BACKGROUND
    ¶2            On the night of his arrest, Garwo attended a party at a Mesa
    park. At some point after the party, Garwo drove to his girlfriend's
    1
    apartment complex. As Garwo attempted to park his vehicle, he collided
    with a parked vehicle and a pole. The owner of the parked vehicle saw the
    collision and, after a brief encounter with Garwo, called the police. After
    Garwo performed field sobriety tests, he was arrested and police performed
    a blood draw. Garwo concedes he was drunk at the time of his arrest.
    ¶3            The jury convicted Garwo of the charged offenses, and the
    court sentenced him to a total of four months' incarceration. Garwo filed a
    timely notice of appeal, and we have jurisdiction pursuant to Arizona
    Revised Statutes sections 12-120.21(A)(1) (2016), 13-4031 (2016) and
    -4033(A)(1) (2016).2
    DISCUSSION
    ¶4           Garwo argues the prosecutor committed misconduct when
    she asked Garwo whether police officers lied when they testified about
    what Garwo told them the night of his arrest. Garwo also argues the
    prosecutor then compounded that error during closing argument. Because
    Garwo failed to raise these objections at trial, we review for fundamental
    1      We view the trial evidence in the light most favorable to sustaining
    the jury's verdicts. State v. Nelson, 
    214 Ariz. 196
    , 196, ¶ 2 (App. 2007).
    2      Absent material revision after the date of an alleged offense, we cite
    a statute's current version.
    2
    STATE v. GARWO
    Decision of the Court
    error. See State v. Henderson, 
    210 Ariz. 561
    , 567, ¶ 19 (2005). To prevail,
    Garwo must prove both fundamental error and resulting prejudice. See id.
    at ¶ 20.
    ¶5              In general, parties should refrain from questioning a witness
    about whether another witness lied. State v. Morales, 
    198 Ariz. 372
    , 375, ¶
    13 (App. 2000). "Were they lying" questions may be allowed, however,
    "when the only possible explanation for the inconsistent testimony is deceit
    or lying or when a defendant has opened the door by testifying about the
    veracity of other witnesses on direct examination." 
    Id.
     "In determining
    whether a prosecutor's improper statement constitutes fundamental error,
    we examine, under the circumstances, whether the jurors were probably
    influenced and whether the statement probably denied Defendant a fair
    trial." State v. Bible, 
    175 Ariz. 549
    , 601 (1993).
    ¶6             During the State's case-in-chief, a police officer testified that a
    clear red cup of "dark liquid" was found inside Garwo's vehicle. A second
    police officer recounted that Garwo told the officers he (1) had consumed
    alcohol (beer) over the span of three hours before the collision at the Mesa
    party, (2) was a "three" on a drunkenness scale from zero to ten ("zero being
    completely sober and ten being falling down drunk") at the time of the
    collision, and (3) had not consumed any alcohol after the collision. On
    direct examination, Garwo denied he told police he drank at the party in
    Mesa, denied he told police he had not consumed alcohol after the collision,
    and denied the existence of an open container of alcohol in his vehicle at the
    time of the collision:
    Q. Okay. Did you ever tell the police that you drank two
    beers at a party in Mesa?
    A. There was no beer in the party. I don't know where they
    got those stories from.
    *      *      *
    Q. Did you ever tell the police that you drank at the park in
    Mesa?
    A. No.
    Q. Did you ever tell the police that you drank at a party in
    Mesa?
    A. No.
    3
    STATE v. GARWO
    Decision of the Court
    *      *     *
    Q. Did you tell Officer [] you did not drink any alcohol after
    this collision?
    A. I never did.
    *      *     *
    Q. There was testimony that a cup was found in your Ford
    Fusion? . . . Do you recall that?
    A. That's what they said.
    Q. Okay. Do you recall any open containers of alcohol being
    in the vehicle?
    A. Not that I recall.
    Subsequently, while cross-examining Garwo, the prosecutor asked,
    without objection, whether the police officers were lying:
    Q. So Officer [] lied when he said that you told him [you did
    not have anything else to drink after the collision]?
    A. Exactly.
    *      *     *
    Q. And you never told them that you had alcohol, specifically
    beer, two of them, whatever you said, before you drove your
    car?
    A. No.
    Q. So that part is a lie, too?
    A. Yeah.
    *      *     *
    Q. And you told the officers when they asked you to rate
    yourself on a scale from 0 to 10, 0 being completely sober, 10
    being drop dead drunk, that at the time of driving you rated
    yourself a three.
    4
    STATE v. GARWO
    Decision of the Court
    A. That's what he said, I did.
    *       *     *
    Q. So he made that part up, too?
    A. (Nods head.)
    ¶7            The prosecutor's questions did not constitute misconduct,
    much less fundamental error that deprived Garwo of a fair trial. The
    prosecutor asked Garwo whether the officers were lying only after Garwo
    questioned the veracity of the officer's testimony on direct examination,
    opening the door to the prosecutor's questions. Morales, 
    198 Ariz. at 375, ¶ 13
    . See generally State v. Doerr, 
    193 Ariz. 56
    , 63, ¶ 27 (1998) ("When a party
    elicits evidence or comments that make otherwise irrelevant evidence
    highly relevant or require some response or rebuttal," the door is opened to
    pertinent, generally impermissible evidence.).3              Accordingly, the
    prosecutor did not commit misconduct by asking Garwo whether the police
    officers were lying. Morales, 
    198 Ariz. at 375, ¶ 13
    ; see People v. Overlee, 
    236 A.D.2d 133
    , 137-38 (N.Y. App. Div. 1997).
    ¶8            Garwo argues the prosecutor also distorted the State's burden
    of proof during closing argument by asking the jury to consider whether
    the police officers had any motive to lie.4 In support, Garwo cites United
    States v. Richter, 
    826 F.2d 206
     (2d Cir. 1987). In that case, however, the
    prosecutor not only repeatedly asserted that the jury could acquit the
    defendant only if it found FBI agents committed perjury "over and over
    again, in this courtroom," the prosecutor also misquoted evidence in an
    effort to frame the controversy as between the defendant and the FBI
    agents. Richter, 
    826 F.2d at 208-09
    . Here, the prosecutor's statement, read
    in the proper context, simply emphasized the jury's duty to determine
    witness credibility and outlined relevant factors bearing on that
    determination. Further, the superior court instructed the jurors before and
    3      Garwo asks this court to reconsider Morales, but we decline to do so.
    4      The prosecutor said:
    [A]ll different types of witnesses . . . are all judged the same.
    So when the officers take the stand, you get to judge them the
    same way. What bias do they have? What motive do they
    have for them to lie now when they say that he said he was
    drinking before? You get to decide that.
    5
    STATE v. GARWO
    Decision of the Court
    after the presentation of evidence that the State had the burden of proving
    the defendant guilty beyond a reasonable doubt and defined that burden
    for the jury. Under the circumstances, the prosecutor's statement did not
    distort the State's burden of proof and did not constitute misconduct. See
    State v. Haverstick, 
    234 Ariz. 161
    , 164, ¶ 6 (App. 2014) ("We consider
    arguments made in closing together with the jury instructions to determine
    whether the prosecutor's statements constituted fundamental error.").
    CONCLUSION
    ¶9            For the foregoing reasons, we affirm Garwo's convictions and
    resulting sentences.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    6
    

Document Info

Docket Number: 1 CA-CR 15-0577

Filed Date: 9/13/2016

Precedential Status: Non-Precedential

Modified Date: 4/18/2021