                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                    JOWEL LEE GUTIERREZ, Appellant.

                             No. 1 CA-CR 19-0179
                              FILED 2-6-2020


           Appeal from the Superior Court in Coconino County
                        No. S0300CR201701079
                 The Honorable Mark R. Moran, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Coconino County Public Defender’s Office, Flagstaff
By Brad Bransky
Counsel for Appellant
                           STATE v. GUTIERREZ
                            Decision of the Court



                        MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge James B. Morse Jr. joined.


P E R K I N S, Judge:

¶1           Jowel Gutierrez appeals his convictions and sentences for two
counts of aggravated assault on a police officer with a deadly weapon. We
affirm.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2            At about 9:00 a.m. on November 28, 2017, Gutierrez’s mother
made the first of multiple 9-1-1 calls cautioning that her son “may be
attempting suicide by cop.” A Williams Police Officer was the first to arrive
at the apartment complex where Gutierrez lived, parking his fully marked
truck in an alley outside the apartment. A Detective arrived shortly after,
parking a few feet behind the Officer and joining him in cover behind his
truck. Officers from the Williams Police Department and the Coconino
County Sheriff’s Office set up a perimeter around the complex.

¶3             The Officer and the Detective noticed movement in a second-
floor window, and then “shots rang out.” The Detective recognized the
distinct sound of a “7.62 by 39” round coming from a semi-automatic rifle
(later identified as an SKS). Gutierrez fired at least eighteen shots, thirteen
of which struck the Officer’s truck as he and the Detective took cover
behind it. Gutierrez punctuated this hail of gunfire by yelling, “Fuck
Williams PD.”

¶4            A standoff ensued. Gutierrez talked to multiple people over
the phone during the incident, including his work supervisor and his
girlfriend. While speaking to his supervisor, Gutierrez made several threats
to shoot or kill police officers. A Sergeant on the other side of the complex
reached Gutierrez via phone. They spoke for around four to five minutes,
and the Sergeant convinced Gutierrez to surrender peacefully. The
Detective took Gutierrez into custody.

¶5            The State charged Gutierrez with two counts of attempted
first-degree murder of a law enforcement officer acting in the line of duty,
class two dangerous felonies (Counts 1 and 2); two counts of aggravated


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                           STATE v. GUTIERREZ
                            Decision of the Court

assault of peace officers engaged in their official duties, class two dangerous
felonies (Counts 3 and 4); one count of criminal damage of property valued
between $2,000 and $10,000, a class five felony (Count 5); and one count of
criminal damage of property valued at less than $250, a class two
misdemeanor (Count 6), which was later dismissed at the State’s request.

¶6            The jury trial lasted seven days. Gutierrez did not testify. In
her closing argument, Gutierrez’s counsel made several statements
purporting to represent his thought process during the standoff. This
included references to what was going on “in his mind,” and even
quotations representing Gutierrez’s inner-monologue: “[H]e thinks, ‘Well,
you know what? Maybe if I say these things, these horrible things, they’ll
take me seriously. And I’ll provoke them. I’ll incite them. And this will all
be over.’” She further argued that Gutierrez chose to fire the shots after he
“decided, ‘This isn’t working. I haven’t done enough yet[,]’” and that “[t]o
[Gutierrez’s] amazement, the officer didn’t return fire. . . . But in that
moment, [Gutierrez] didn’t know that kind of restraint would be exercised.
He’s thinking, ‘Okay, now for sure I’ve done enough. This is going to end.
My life will be ended the way I want it to in this moment.’”

¶7             The prosecutor responded in his rebuttal closing argument.
First, he explicitly cautioned the jury to remember that “the defendant has
a right to not testify, and you cannot use that fact against him and you
cannot guess about what he may have testified to, had he taken the stand.”
He then noted that defense counsel’s closing argument contained a number
of statements that the jury “never heard evidence about.” When the
prosecutor affirmatively noted that the jury “never heard the defendant
say” the things defense counsel attributed to that internal monologue,
defense counsel objected on due process grounds. The court overruled the
objection and the prosecutor concluded by reminding the jury, “Nothing
the attorneys say is evidence. And you have that jury instruction: You have
to rely on what you heard from the witness stand.”

¶8              The jury found Gutierrez guilty on Counts 3, 4, and 5, but
could not render verdicts on Counts 1 and 2. Gutierrez moved for a new
trial under Arizona Rule of Criminal Procedure 24.1, arguing, inter alia, that
the prosecutor violated his constitutional rights by commenting on his
failure to testify (the same statements which Gutierrez had objected to and
moved to strike). The State responded, and the trial court denied the
motion. The trial court sentenced Gutierrez to aggravated concurrent
prison terms of thirteen years on Counts 3 and 4, and 1.5 years on Count 5.
Gutierrez timely appealed from his convictions and sentences on Counts 3
and 4.


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                           STATE v. GUTIERREZ
                            Decision of the Court

                               DISCUSSION

¶9             Gutierrez argues the trial court erred in allowing the portions
of the State’s closing argument referencing Gutierrez’s failure to testify. We
review the trial court’s ruling on a motion for new trial for an abuse of
discretion, State. v. Neal, 143 Ariz. 93, 97 (1984), but review constitutional
issues de novo, State v. Moody, 208 Ariz. 424, 445, ¶ 62 (2004).

¶10           “The fifth amendment’s protection against self-incrimination
prohibits a prosecutor from telling the jury that a defendant’s failure to
testify supports an unfavorable inference against him.” State v. Fuller, 143
Ariz. 571, 574 (1985) (citing Lakeside v. Oregon, 435 U.S. 333 (1978)); see also
Ariz. Const. art. 2, § 10; A.R.S. § 13-117(B). “Whether a prosecutor’s
comment is improper depends upon the context in which it was made and
whether the jury would naturally and necessarily perceive it to be a
comment on the defendant’s failure to testify.” State v. Rutledge, 205 Ariz. 7,
13, ¶ 33 (2003). “To be constitutionally proscribed, a comment must be
adverse; that is, it must support an unfavorable inference against the
defendant and, therefore, operate as a penalty imposed for exercising a
constitutional privilege.” State v. Mata, 125 Ariz. 233, 238 (1980).

¶11           The prosecutor’s statements here did not violate Gutierrez’s
right against self-incrimination. Gutierrez’s counsel opened the door in her
closing argument with several references to what was going on “[i]n
[Gutierrez’s] mind,” and purporting to offer Gutierrez’s inner-monologue
during his standoff with police. The prosecutor responded to defense
counsel’s strategy by reminding the jury that Gutierrez’s inner-monologue
was not in evidence because he never testified. He reiterated the jury
instruction that arguments from attorneys are not evidence. The prosecutor
even reminded the jury that Gutierrez had a right not to testify, and that
they could not use his failure to testify against him or speculate as to what
his testimony would have been had he testified.

¶12            Taken in context, the jury would not “naturally and
necessarily perceive” the prosecutor’s statements to “support an
unfavorable inference” against Gutierrez for exercising his right not to
testify. Rather, the prosecutor only stressed the absence of evidence that
defense counsel offered in her closing argument—namely, the speculative
inner-monologue of someone who never testified. See State v. Crumley, 128
Ariz. 302, 305 (1981) (“Primarily, the prosecutor’s reply was directed not at
the failure to testify but at defense counsel’s arguing his personal belief.”);
State v. Arredondo, 111 Ariz. 141, 144 (1974) (“[T]he remarks of the
prosecutor did not go beyond a pertinent reply and were not prejudicial.”).


                                       4
                          STATE v. GUTIERREZ
                           Decision of the Court

The trial court did not err in overruling Gutierrez’s objection, denying his
motion to strike, or denying his motion for a new trial.

                              CONCLUSION

¶13          We affirm.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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