State v. Davis ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JASON RAMONE DAVIS, Appellant.
No. 1 CA-CR 20-0164
FILED 3-9-2021
Appeal from the Superior Court in Maricopa County
No. CR2019-128730-001
The Honorable Suzanne E. Cohen, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Nicholas Chapman-Hushek
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Thomas K. Baird
Counsel for Appellant
STATE v. DAVIS
Decision of the Court
MEMORANDUM DECISION
Judge Brian Y. Furuya delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Samuel A. Thumma joined.
F U R U Y A, Judge:
¶1 Jason Ramone Davis appeals his convictions and sentences
for one count of theft of means of transportation and one count of
possession of burglary tools. Davis argues that he is entitled to a new trial
based on alleged misconduct by the prosecutor during closing argument.
Because Davis has not shown prosecutorial misconduct, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Davis was pulled over while driving a vehicle that had been
reported stolen. The officer making the stop had to jiggle and use physical
force to retrieve the key from the ignition of the car. The officer recognized
the key as a “jiggle key,” a customized burglary tool used to start older
vehicles.
¶3 The officer arrested Davis and read him his Miranda 1 rights,
which Davis stated he understood. Thereafter, among multiple other
admissions, Davis told the officer that he had “borrowed this car from a
friend,” but could not provide the friend’s physical features or any contact
information.
¶4 The State charged Davis with one count of theft of means of
transportation, a class 3 felony, and one count of possession of burglary
tools, a class 6 felony.
¶5 At trial, Davis presented evidence that he was wearing a state-
issued GPS ankle monitor at the time the car was stolen. GPS data from this
monitor indicated Davis had not been at the specific address from which
the car was stolen during the relevant time frame for the initial theft.
However, the same data also revealed that Davis had been within the
general vicinity of this address.
1 Miranda v. Arizona, 384 U.S. 436 (1966).
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STATE v. DAVIS
Decision of the Court
¶6 In her rebuttal to closing arguments, the prosecutor argued:
What does this GPS ankle monitor prove? It doesn’t provide
a defense. Doesn’t prove he was involved in the theft either.
So I don’t know why defense counsel showed this particular
data to you. It just—the only thing this GPS data does is just
make it so much more suspicious. That’s the only thing this
data does. But that was the tactic of the defense counsel in this
case. The tactic of the defense counsel was to distract you.
And that’s his job.
¶7 Davis’ counsel objected to these statements as improper
argument, and the superior court overruled the objection. The jury found
Davis guilty on both counts. Given his prior criminal history, the court
sentenced Davis to concurrent terms of twelve years. Davis timely
appealed, and we have jurisdiction pursuant to Arizona Revised Statutes
§§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
DISCUSSION
¶8 Davis contends the State’s arguments in rebuttal, as
highlighted above, were improper. Because defense counsel objected to the
alleged misconduct, we review for harmless error. State v. Martinez, 230
Ariz. 208, 214, ¶ 25 (2012) (citing State v. Gallardo, 225 Ariz. 560, 568, ¶ 35
(2010)).
¶9 To prove reversible error based on 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. Goudeau, 239 Ariz. 421, 465, ¶ 193 (2016)
(quoting State v. Hughes, 193 Ariz. 72, 79, ¶ 26 (1998)). A defendant must
demonstrate that: “(1) misconduct is indeed present; and (2) a reasonable
likelihood exists that the misconduct could have affected the jury’s
verdict[.]” State v. Moody, 208 Ariz. 424, 459, ¶ 145 (2004) (internal quotation
omitted).
¶10 “[J]ury argument that impugns the integrity or honesty of
opposing counsel is improper.” Moody, 208 Ariz. at 459, ¶ 145 (quoting
Hughes, 193 Ariz. at 86, ¶ 59); see also State v. Smith, 182 Ariz. 113, 115-16
(App. 1995) (noting that a prosecutor’s written and oral statements that
defense counsel is a liar were “grossly inappropriate”). However,
prosecutors are given “wide latitude in presenting their closing arguments
to the jury,” State v. Jones, 197 Ariz. 290, 305, ¶ 37 (2000), including the ability
to invoke “criticism of defense theories and tactics . . . [.]” State v. Ramos, 235
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STATE v. DAVIS
Decision of the Court
Ariz. 230, 238, ¶ 25 (App. 2014) (quoting U.S. v. Sayetsitty, 107 F.3d 1405,
1409 (9th Cir. 1997)).
¶11 In Ramos, for example, the State argued during rebuttal that
the defense had presented evidence that attempted to “divert the jurors
from the relevant evidence by raising distractions or ‘red herrings.’” 235
Ariz. at 237–38, ¶¶ 24–25. Notwithstanding these statements suggesting
defense counsel was trying to mislead the jury, the Ramos court nevertheless
found that it could not “say that those statements did more than criticize
defense tactics.” Id. at 238, ¶ 25.
¶12 In this case, the State’s rebuttal likewise suggested that Davis’
counsel had used evidence to distract. And in light of the fact that Davis did
not dispute telling officers that someone had loaned him the car, the GPS
evidence was arguably irrelevant and simply a distraction. Accordingly, the
prosecutor’s argument was not improper. Moreover, the State specifically
clarified, “that was the tactic of the defense counsel in this case. The tactic of
the defense counsel was to distract you.” (Emphasis added.)
¶13 To be sure, the references to “defense counsel” and argument
that it was defense counsel’s “job” to distract the jury could have been more
nuanced. That said, the State’s criticism of the defense’s tactic did not
exceed the latitude afforded prosecutors during closing arguments.
Consequently, Davis has failed to show prosecutorial misconduct on this
record, and therefore, no error has been established.
CONCLUSION
¶14 Davis’ convictions and sentences are affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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