State v. Risner ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
TODD JAMES RISNER, Appellant.
No. 1 CA-CR 17-0174
FILED 12-21-2017
Appeal from the Superior Court in Maricopa County
No. CR2016-129773001
The Honorable Mark H. Brain, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Jason Lewis
Counsel for Appellee
Maricopa County Legal Defender’s Office, Phoenix
By Cynthia D. Beck
Counsel for Appellant
STATE v. RISNER
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Jon W. Thompson and Judge Jennifer M. Perkins joined.
J O N E S, Judge:
¶1 Todd Risner appeals his conviction and sentence on one count
of disorderly conduct, a domestic violence offense, arguing only that he
received an unfair trial by virtue of prosecutorial misconduct. For the
following reasons, we affirm.
FACTS1 AND PROCEDURAL HISTORY
¶2 In June 2016, Risner got into a verbal altercation with his
husband. As the argument escalated, Risner retrieved a knife from the
kitchen and slammed it on the dining room table with sufficient force to
break the thick glass top. The investigating officer did not record his
interview with Risner but testified at trial that Risner admitted obtaining
the knife and slamming his fist onto the glass tabletop. Risner was
thereafter indicted on one count of aggravated assault.
¶3 During cross-examination, Risner’s counsel questioned the
investigating officer regarding his decisions not to tape record the interview
and not to impound or test the knife, and identified certain facts the officer
believed were in his report but were not. On redirect, the officer testified,
without objection, that falsifying reports and evidence “would be
dishonorable for one thing and I could lose my job, [my] pension could be
at stake, [and] any credibility I have in court at any future case, it’s done.”
¶4 In his closing, Risner’s counsel argued the State failed to meet
its burden of proof in light of purported deficiencies in the investigation
and discrepancies between the investigating officer’s recollection of the
events and his written report. In rebuttal, the State argued, again without
objection:
1 “We view the facts in the light most favorable to sustaining the
convictions with all reasonable inferences resolved against the defendant.”
State v. Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (quoting State v.
Valencia, 186 Ariz. 493, 495 (App. 1996)).
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STATE v. RISNER
Decision of the Court
[Risner] admitted to police that night it was a knife that he
used. So [defense counsel is] essentially sitting here asking
you to find his client to be a liar, and therefore it’s reasonable
doubt. And why, well, how does he get around it, he says,
oh, Officer V[.], well, he didn’t record the conversation and so
maybe he’s not being truthful with you. Really? Do you
really believe that? This officer, sworn to protect the citizens
of our county, would lose his pension, would lose everything
he has with the Phoenix Police Department, him and his
family would lose that income, he would potentially be
prosecuted by my office for potentially perjury, every case
he’s ever been worked on would be called into question based
on that type of action. For what? Why would he do that? For
this guy? To — to — what ax does he have to grind against
this defendant? Zero. He has no skin in the game. Absolutely
none. He’s out there responding to calls. And on that day in
June he showed up and he responded to the call and he did
his job.
¶5 The jury convicted Risner of the lesser-included offense of
disorderly conduct, determined it was a domestic violence offense, and
found the State had proved the offense involved the discharge, use, or
threatened exhibition of a deadly weapon or dangerous instrument. Risner
was sentenced as a dangerous, non-repetitive offender to one-and-a-half
years’ imprisonment and given credit for forty-one days’ presentence
incarceration. Risner timely appealed, and we have jurisdiction pursuant
to Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1),2 13-4031,
and -4033(A)(1).
DISCUSSION
¶6 To prevail on a claim of prosecutorial misconduct, a
defendant must prove: “(1) misconduct is indeed present; and (2) a
reasonable likelihood exists that the misconduct could have affected the
jury’s verdict, thereby denying defendant a fair trial.” State v. Ramos, 235
Ariz. 230, 237, ¶ 22 (App. 2014) (quoting State v. Moody, 208 Ariz. 424, 459,
¶ 145 (2004)). Additionally:
Prosecutorial misconduct “is not merely the result of legal
error, negligence, mistake, or insignificant impropriety, but,
2 Absent material changes from the relevant date, we cite a statute’s
current version.
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STATE v. RISNER
Decision of the Court
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.”
Id. (quoting Pool v. Superior Court, 139 Ariz. 98, 108-09 (1984)). Prosecutorial
misconduct occurs where the prosecutor: (1) “places the prestige of the
government behind its evidence,” or (2) “suggests that information not
presented to the jury supports the evidence.” State v. Newell, 212 Ariz. 389,
402, ¶ 62 (2006) (quoting State v. Vincent, 159 Ariz. 418, 423 (1989)). Risner
argues the prosecutor’s statements eliciting testimony on redirect and in his
closing argument fall into both categories.
¶7 Because Risner did not object to the testimony and argument
in the trial court, we review for fundamental error. State v. Morris, 215 Ariz.
324, 335, ¶ 47 (2007) (citing State v. Roque, 213 Ariz. 193, 228, ¶ 154 (2006)).
To prevail under this standard of review, Risner must establish: (1) error
occurred; (2) the error was fundamental; and (3) the error caused him
prejudice. State v. Henderson, 210 Ariz. 561, 567, ¶ 20 (2005).
¶8 Risner first argues the prosecutor committed misconduct
when he elicited testimony from the investigating officer regarding the
consequences of falsifying reports or testimony. Risner argues, without
meaningful explanation or supporting legal authority, that “[b]y
referencing police department policies, the prosecutor bolstered [the
officer]’s credibility with the prestige of that government institution.” We
find no error. The mere fact that a peace officer is a State employee and
bound by departmental policies does not create any inference that he is
more or less credible than another witness; indeed, the jury was specifically
instructed to evaluate a peace officer’s testimony the same as it would any
other witness, and we presume it followed those instructions. See State v.
Peraza, 239 Ariz. 140, 146, ¶ 23 (App. 2016) (citing Newell, 212 Ariz. at 403,
¶ 68). Moreover, this argument is not supported by the record; no
testimony or argument references police department policies.
¶9 Risner also argues the prosecutor vouched for the
investigating officer’s testimony in his rebuttal by referencing a “sworn
duty” imposed by the government and the “prospect of perjury” to be
prosecuted by the government. He further contends that the prosecutor’s
rebuttal improperly referenced facts not in evidence, namely that: (1) the
investigating officer was “sworn to protect the citizens of the county,”
(2) the officer would lose income if he falsified information, and (3) the
officer would be subject to a perjury charge if he falsified information.
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STATE v. RISNER
Decision of the Court
¶10 We do not interpret the prosecutor’s rebuttal argument as
vouching in any respect. First, the purported “facts not in evidence” are
simply inferences that can fairly be drawn from the officer’s testimony that
an act of dishonesty could end his career and a common-sense
understanding of both law enforcement’s role in society, and the general
effects of dishonest behavior. “The prosecuting attorney in closing
argument is permitted to comment on the evidence and to argue reasonable
inferences therefrom.” State v. Jones, 109 Ariz. 378, 380 (1973) (citing State v.
Propp, 104 Ariz. 466, 468 (1969)). The jury was properly instructed to use
their common sense, see State v. Gustafson, 233 Ariz. 236, 262-63, ¶ 13 (App.
2013) (citing State v. McLoughlin, 133 Ariz. 458, 461 n.2 (1982), and State v.
Manning, 224 N.W.2d 232, 236 (Iowa 1974)), and “[t]he remarks in the
prosecutor’s closing argument served only to call the attention of the jurors
to matters which they were justified in considering in determining their
verdict,” Jones, 109 Ariz. at 380 (citing State v. Randolph, 99 Ariz. 253, 257
(1965)). See also State v. McCall, 139 Ariz. 147, 158-59 (1983) (concluding
testimony “that the witness had no motive to testify falsely” was not
improper vouching).
¶11 Second, Risner defended the charges based upon purported
deficiencies in the investigation and discrepancies in the officer’s testimony.
“Criticism of defense theories and tactics is a proper subject of closing
argument.” Ramos, 235 Ariz. at 238, ¶ 25 (quoting United States v. Sayetsitty,
107 F.3d 1405, 1409 (9th Cir. 1997)). We cannot say the prosecutor’s
comments did more than criticize the plausibility of Risner’s chosen
defense.
¶12 Finally, while a prosecutor cannot “convey his personal belief
about the credibility of a witness,” State v. Lamar, 205 Ariz. 431, 441, ¶ 54
(2003) (citing State v. White, 115 Ariz. 199, 204 (1977)), he may certainly
comment on a witness’s bias or prejudice, or lack thereof, see, e.g., State v.
Herrera, 203 Ariz. 131, 137, ¶ 17 (App. 2002); State v. Nilsen, 134 Ariz. 433,
435 (App. 1982). Additionally, this Court has already held that “the
prosecutor’s rhetorical questions to the jury ‘What motive would the police
have to lie in a case like this?’ and ‘What motive would they have to lie or
fabricate any evidence?’ did not rise to the level of misconduct,” even where
the comments mischaracterized the defendant’s argument as an attack on
their credibility, where, as here, the jury was instructed that closing
arguments are not evidence. Ramos, 235 Ariz. at 238, ¶¶ 29-30; see also
Lamar, 205 Ariz. at 441-42, ¶ 54 (“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.”) (collecting cases).
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STATE v. RISNER
Decision of the Court
¶13 “The touchstone . . . in cases of alleged prosecutorial
misconduct is the fairness of the trial, not the culpability of the prosecutor.”
Smith v. Phillips, 455 U.S. 209, 219 (1982). On this record, Risner has not
shown any reasonable likelihood the prosecutor’s statements could have
affected the jury’s verdict or otherwise deprived him of a fair trial. He
therefore has not proven reversible error.
CONCLUSION
¶14 Risner’s conviction and sentence are affirmed.
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