State v. Snow

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 MICHAEL SNOW, Appellant.
No. 1 CA-CR 21-0586
FILED 9-15-2022
Appeal from the Superior Court in Mohave County
S8015CR202001418
The Honorable Billy K. Sipe, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Andrew Stuart Reilly
Counsel for Appellee
Randall J. Craig, Fountain Hills
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Cynthia J. Bailey and Vice Chief Judge David B. Gass joined.
STATE v. SNOW
Decision of the Court
T H U M M A, Judge:
¶1 Defendant Christopher Michael Snow appeals his burglary
conviction and resulting prison sentence. Because Snow has shown no
reversible error, his conviction and sentence are affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 Around sunset one day in December 2020, law enforcement
responded to a burglary in progress at a home in a remote part of Mohave
County. The homeowner called law enforcement after seeing individuals in
the home, without permission, over a live security video. A deputy, the first
officer to arrive, saw Snow and his truck blocking the road near the entrance
to the home. The deputy detained Snow and, while waiting for backup,
advised him of his rights under Arizona v. Miranda, 384 U.S. 436 (1966). The
deputy had a body-worn camera that recorded the entire interaction. Three
more law enforcement officers arrived and, after entering the home, found
a man and a woman inside.
¶3 Snow was charged with burglary in the second degree, a
Class 3 felony; was found guilty as charged after a two-day trial in
September 2021; and, given his criminal history, was sentenced to a greater
than presumptive 12-year prison term. As relevant here, during opening
statements the prosecutor told the jury they would “get a chance to see
exactly what [the officer] did, or at least portions of some of the things that
[the officer] did. Watching two hours of video, I don’t want to waste your
time doing that.”
¶4 During direct examination of the homeowner, the prosecutor
said, “[t]o be clear, the camera’s on; it’s not always recording. Doesn’t begin
recording until the sensor is tripped?” and, without objection, the
homeowner answered “[c]orrect.” During direct examination of a deputy,
the prosecutor asked, “[y]ou take off north, correct?” and, without
objection, the deputy answered, “[t]hat’s correct.” Twice during
questioning of the homeowner and twice of the deputy, after they
answered, the prosecutor said, “[v]ery good.” Several times, the prosecutor
said “I understand” or “[r]ight” after a witness answered.
¶5 This court has jurisdiction over Snow’s timely appeal
pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona
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STATE v. SNOW
Decision of the Court
Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031 and 13-4033(A)
(2022).1
DISCUSSION
¶6 Snow argues the prosecutor committed reversible error by
vouching during opening statement and while examining witnesses as
noted above. At trial, Snow failed to timely object. “When a defendant fails
to object to trial error, he forfeits appellate relief absent a showing of
fundamental error.” State v. Escalante, 245 Ariz. 135, 138 ¶ 1 (2018). An error
is fundamental if it “goes to the foundation of the defendant’s case, takes
away a right essential to the defense, or is of such magnitude that it denied
the defendant a fair trial.” Id. Snow “bears the burden to establish that (1)
error exists, (2) the error is fundamental, and (3) the error caused him
prejudice.” State v. James, 231 Ariz. 490, 493 ¶ 11 (App. 2013) (citations
omitted).
¶7 “Two general forms of prosecutorial vouching exist: (1) when
‘the prosecutor places the prestige of the government behind its witness;’
or (2) when ‘the prosecutor suggests that information not presented to the
jury supports the witness’s testimony.’” State v. Acuna Valenzuela, 245 Ariz.
197, 217 ¶ 75 (2018) (citation omitted). In addition, “a lawyer is prohibited
from asserting personal knowledge of facts in issue before the tribunal
unless he testifies as a witness.” State v. Bible, 175 Ariz. 549, 601 (1993)
(citation omitted).
¶8 Snow first argues the prosecutor vouched during his opening
statement by informing the jury that they would not need to see the entire
body camera footage. Snow argues “this implied whatever the officer
testified to would be enough for a conviction. This also implied [Snow’s]
whole statement to [the deputy] would be unnecessary to hear and any
further statements including testimony under oath during the trial would
be unnecessary.”
¶9 In context, the prosecutor’s statement told the jury that
portions of the video would be played during trial. Snow did not object, did
not claim the portion of the video played was misleading and did not claim
the jury should watch the entire two-hour video. Nor does he support his
speculation that the statement addressed the need to hear Snow’s other
statements or that the portions of the video played meant sworn testimony
1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
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STATE v. SNOW
Decision of the Court
was not needed at trial. The superior court also instructed the jury that a
lawyer’s statements are not evidence and to “determine what the facts in
this case are from the evidence produced in court,” a directive this court
presumes the jury followed. State v. Newell, 212 Ariz. 389, 403 ¶ 68 (2006).
¶10 Nor has Snow supported his argument that the prosecutor’s
comments during opening statements “had a chilling effect on [Snow’s]
decision to testify” and that he “chose not to testify as a result.” After the
State rested and the court denied Snow’s motion for judgment of acquittal,
the court asked if the defense was presenting any evidence or testimony.
Defense counsel responded “[m]y client is not going to testify,” adding he
would call a codefendant to testify. Snow has failed to show the
prosecutor’s opening statement had any impact on his decision not to
testify or otherwise affected his right to a fair trial. See State v. Dumaine, 162
Ariz. 392, 403 (1989).
¶11 Snow next claims that the prosecutor’s responses to
questions, such as “[t]hat’s correct,” “[v]ery good,” “I understand” or
“[r]ight” were impermissible vouching constituting prosecutorial
misconduct. Again, however, the court instructed the jury to not consider
attorney’s statements as evidence. Cf. State v. Payne, 233 Ariz. 484, 512 (2013)
(even when vouching occurs, noting the court may “cure the error by
instructing the jury not to consider the attorney’s arguments as evidence”).
Although it would have been better if these “play-by-play” statements had
not been made, Snow has not shown they constitute fundamental error
resulting in prejudice. See State v. Vargas, 249 Ariz. 186, 190 ¶¶ 12–14 (2020).
Nor has Snow shown the prosecutor’s occasional use of leading questions
during direct examination was error. See Ariz. R. Evid. 611(c) (“Leading
questions should not be used on direct examination except as necessary to
develop the witness’s testimony.”).
CONCLUSION
¶12 Snow’s conviction and resulting sentence are affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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