                                  IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                            STATE OF ARIZONA
                                Appellee,

                                     v.

                          JULIO PEDROZA-PEREZ,
                                 Appellant.

                           No. CR 15-0312-PR
                           Filed August 9, 2016

             Appeal from the Superior Court in Pima County
             The Honorable Christopher C. Browning, Judge
                         No. CR20132784-001

      Memorandum Decision of the Court of Appeals, Division Two
                     No. 2 CA-CR 2014-0168
                      Filed August 12, 2015
                 VACATED AND REMANDED

COUNSEL:

Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor
General, Jennifer M. Perkins (argued), Assistant Solicitor General, Joseph T.
Maziarz, Section Chief Counsel, Amy Pignatella Cain, Assistant Attorney
General, Criminal Appeals Section, Tucson, Attorneys for State of Arizona

Steven R. Sonenberg, Pima County Public Defender, Rebecca A. McLean
(argued), Assistant Public Defender, Tucson, Attorneys for Julio Pedroza-
Perez

JUSTICE BRUTINEL authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES
TIMMER and BOLICK joined.

JUSTICE BRUTINEL, opinion of the Court:

¶1            In this marijuana-smuggling case, Julio Pedroza-Perez
notified the court before trial that he intended to raise a duress defense by
                        STATE V. PEDROZA-PEREZ
                           Opinion of the Court

testifying that armed smugglers had forced him to carry the drugs.
Reasoning that Pedroza-Perez might change his mind about testifying, the
trial court precluded him from mentioning the duress defense or his related
anticipated testimony in his opening statement. We hold that the trial court
erred in so limiting Pedroza-Perez’s opening statement, and therefore
vacate the court of appeals’ decision and remand to allow that court to
consider whether the error was harmless.

                            I.      BACKGROUND

¶2            In June 2013, two “coyote” smugglers led Pedroza-Perez and
two others through the desert from Mexico into Arizona. The group met
two more smugglers who gave them several bales of marijuana to carry.
Later, Border Patrol agents and sheriff’s deputies spotted the group. When
the officers approached, however, they found only Pedroza-Perez, sitting
under a tree with several backpacks containing bales of marijuana. The
others escaped. Pedroza-Perez was arrested and charged with importation
of marijuana, transportation of marijuana for sale, and possession of drug
paraphernalia.

¶3               Pedroza-Perez gave notice of a duress defense. The State
moved in limine to preclude the defense on the grounds that it was “not
supported by the facts.” The defense countered that Pedroza-Perez would
testify at trial that armed men had forced him to carry the marijuana. After
a hearing, the trial court precluded Pedroza-Perez from raising the duress
defense or describing any anticipated duress-related testimony in his
opening statement. If Pedroza-Perez testified at trial, the court ruled, then
the defense could argue duress in closing.

¶4             Before trial, Pedroza-Perez moved for clarification of the trial
court’s ruling. In support, he filed a sworn affidavit stating that he had
crossed the border with the help of coyote smugglers, whom he agreed to
pay upon reaching Phoenix. After crossing the border, he averred, the
armed smugglers seized his possessions and threatened to harm him or his
family if he did not carry the marijuana. Pedroza-Perez again sought to
include his duress defense and the supporting facts in his opening
statement. The trial court reiterated its ruling, finding that the only
evidence of duress would come from Pedroza-Perez’s own testimony and
that he could decline to testify, leaving the defense without any support.
As a result, the court ruled, “unless and until this issue is established in the

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                           Opinion of the Court

record by testimony, counsel will not be permitted to suggest, argue, claim
or otherwise advise the jury of Mr. Pedroza-Perez’s claim of duress.”

¶5             Complying with the court’s order, the defense did not
mention duress in its opening statement, stating only that the State’s
witnesses were not “present for the other half of the story.” Pedroza-Perez
testified consistent with the facts outlined in his affidavit. Defense counsel
argued duress in closing argument, and the trial court instructed the jury
on the duress defense.          The jury found Pedroza-Perez guilty of
transportation of marijuana and possession of drug paraphernalia but
acquitted him on the importation charge. Pedroza-Perez was sentenced to
prison and timely appealed.

¶6             The court of appeals affirmed. State v. Pedroza-Perez, 2 CA-CR
2014-0168, at *3 ¶ 12 (Ariz. App. Aug. 12, 2015) (mem. decision). It found
that although Pedroza-Perez produced an affidavit in support of the duress
defense and avowed that he would testify, the trial court acted within its
discretion in determining that “such assertion lacks significance . . . because
[he] can change his mind at any time and decide not to testify.” Id. ¶ 11
(quoting the trial court ruling). This ruling, the court of appeals found, was
consistent with prior cases indicating that opening statements should not
include “statements which will not or cannot be supported by proof.” Id.
¶¶ 10–11 (quoting United States v. Dinitz, 424 U.S. 600, 612 (1976) (Burger,
C.J., concurring) and citing State v. Bible, 175 Ariz. 549, 601–02, 858 P.2d
1152, 1204–05 (1993)).

¶7            Because the proper scope of an opening statement is a
recurring issue of statewide importance, we granted review. In its briefing
before this Court, the State conceded that the trial court erred in precluding
defense counsel from mentioning in opening statement the duress defense
and Pedroza-Perez’s anticipated testimony, but argued that the error was
harmless. We have jurisdiction pursuant to article 6, section 5(3), of the
Arizona Constitution and A.R.S. § 12–120.24.

                               II.    ANALYSIS

¶8             We review a trial court’s ruling on the content of opening
statements for abuse of discretion. State v. Prewitt, 104 Ariz. 326, 333, 452
P.2d 500, 507 (1969). “An error of law committed in reaching a discretionary
conclusion may, however, constitute an abuse of discretion.” Busso–

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                            Opinion of the Court

Estopellan v. Mroz, 238 Ariz. 553, 554 ¶ 5, 364 P.3d 472, 473 (2015) (citing State
v. Wall, 212 Ariz. 1, 3 ¶ 12, 126 P.3d 148, 150 (2006)). We agree with the
parties that the trial court erred in limiting Pedroza-Perez’s opening
statement.

¶9             A defendant is entitled to make an opening statement. Ariz.
R. Crim. P. 19.1(a). “[T]he purpose of an opening statement is to advise the
jury of facts upon which the [defendant] would rely in his defense” and to
give the jurors “a general picture of the facts and the situations, so that they
will be able to understand the evidence.” State v. Burruell, 98 Ariz. 37, 40,
42, 401 P.2d 733, 736, 737 (1965). In other words, the opening statement
affords the defense an opportunity to “explain the defense theory of the
case, to provide the jury an alternative interpretive matrix by which to
evaluate the evidence, and to focus the jury’s attention on the weaknesses
of the government’s case.” Oesby v. United States, 398 A.2d 1, 5 (D.C. 1979).

¶10           Although a defendant enjoys “considerable latitude” in
making an opening statement, Burruell, 98 Ariz. at 40, 401 P.2d at 736, it
should not include “statements which will not or cannot be supported by
proof.” Dinitz, 424 U.S. at 612 (Burger, C.J., concurring); see Bible, 175 Ariz.
at 601–02, 858 P.2d at 1204–05.

¶11           Here, Pedroza-Perez notified the trial court and the
prosecution that he planned to testify to facts sufficient to support his
duress defense and submitted an affidavit previewing that testimony. Both
courts below correctly observed that Pedroza-Perez could have changed his
mind and decided not to take the stand because a criminal defendant has
an absolute right to testify or not testify. State v. Whitaker, 112 Ariz. 537, 542,
544 P.2d 219, 224 (1975); see U.S. Const. amend. V; see also A.R.S. § 13–117.
The possibility that Pedroza-Perez might have later elected not to testify,
however, was not a proper reason to bar him from telling the jury about his
anticipated evidence of duress—his central explanatory theme and only
defense—in the opening statement.

¶12           Specific evidence may be referenced in the opening statement
as long as the proponent has a good faith basis for believing the proposed
evidence exists and will be admissible. See State v. Bowie, 119 Ariz. 336, 339–
40, 580 P.2d 1190, 1193–94 (1978) (ruling that prosecutor’s comments about
anticipated testimony of four-year old child were not improper when
prosecutor had good faith belief that child, whose competency had not been

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                        STATE V. PEDROZA-PEREZ
                           Opinion of the Court

determined, would be allowed to testify). The trial court may require a
party to identify the good faith basis for the proffered evidence, see Dinitz,
424 U.S. at 603, but may not impose a more exacting standard for inclusion
in the opening statement. Opening statements are predictions about what
the evidence will show. At trial, things do not always go as planned.
Witnesses sometimes fail to appear, recant, change their stories, or even die
before trial.

¶13           The trial process itself accounts for the risk that the trial
evidence will not match the opening statements. As occurred here, trial
courts instruct jurors that evidence is presented through testimony or
exhibits, and that opening statements and arguments of counsel are not
evidence. State v. Manuel, 229 Ariz. 1, 6 ¶ 24, 270 P.3d 828, 833 (2011). We
presume that jurors follow this instruction and such an instruction typically
cures any potential prejudice. Id.; State v. Gallardo, 225 Ariz. 560, 569 ¶ 40,
242 P.3d 159, 168 (2010). In addition, a defendant who fails to produce
evidence at trial to support claims made during the opening statement
generally hurts only himself. See Rutledge v. State, 41 Ariz. 48, 55–56, 15 P.2d
255, 258 (1932). He loses credibility with the jury, cannot refer to the
evidence available in closing argument, and will not be entitled to a jury
instruction based on the evidence.

¶14           This case does not present the situation found in Dinitz and
Bible, in which a party leveled accusations that were not supported by
anticipated evidence—that is, “statements which [would] not or [could not]
be supported by proof.” Dinitz, 424 U.S. at 612; Bible, 175 Ariz. at 602, 858
P.2d at 1205 (With regards to the prosecutor’s opening statement claiming
that the victim was tortured, the court found “[t]here was no direct
evidence” and “the record does not indicate that any such evidence was
anticipated.”). During opening statements in Dinitz, defense counsel
accused a government witness of attempted extortion even though it was
“apparent that [counsel] had no information linking [the witness] to the
extortion attempt.” Id. at 603. During opening statements in Bible, the
prosecutor speculated that the defendant’s alleged victim was “perhaps
tortured,” but “[t]here was no direct evidence that the victim was tortured,
and the record does not indicate that any such evidence was anticipated
when opening statements were made.” 175 Ariz. at 601–02, 858 P.2d at
1204–05. The present case is plainly distinguishable. By proffering an
affidavit detailing his anticipated testimony that he was forced at gunpoint
to carry marijuana, Pedroza-Perez established a good faith basis for his

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                        STATE V. PEDROZA-PEREZ
                           Opinion of the Court

duress defense. He did not speculate or make allegations unsupported by
anticipated evidence. Rather, he properly sought to present an opening
statement that included his good faith predictions about the evidence he
planned to introduce in support of his defense.

¶15           Pedroza-Perez argues that the trial court’s error was
structural and, thus, mandates reversal. See State v. Valverde, 220 Ariz. 582,
585 ¶ 10, 208 P.3d 233, 236 (2009) (“If an appellate court finds structural
error, reversal is mandated regardless of whether an objection is made
below or prejudice is found. If error is structural, prejudice is presumed.”).
We disagree. Structural errors, as opposed to more typical trial errors,
“deprive defendants of basic protections without which a criminal trial
cannot reliably serve its function as a vehicle for determination of guilt or
innocence.” State v. Ring (Ring III), 204 Ariz. 534, 552 ¶ 45, 65 P.3d 915, 933
(2003) (internal quotation marks omitted) (quoting Neder v. United States,
527 U.S. 1, 8–9 (1999)). In other words, structural errors are those that
“affect the entire conduct of the trial from beginning to end, and thus taint
the framework within which the trial proceeds.” State v. Henderson, 210
Ariz. 561, 565 ¶ 12, 115 P.3d 601, 605 (2005) (internal quotation marks
omitted) (quoting State v. Anderson, 197 Ariz. 314, 323 ¶ 22, 4 P.3d 369, 378
(2000)).

¶16             Here, the trial court’s restriction on Pedroza-Perez’s opening
statement did not deprive him of the basic protections of a criminal trial or
affect its basic framework. Pedroza-Perez was not completely barred from
presenting his duress defense to the jury. He testified in support of the
defense, his counsel argued duress in closing, and the trial court instructed
the jury on the elements of duress. As a result, the court’s error was non-
structural, subject to harmless error review.

¶17             Having agreed that the trial court erred, both parties urge us
to decide whether that error was harmless. But because the court of appeals
did not reach that issue, we remand for that court to determine whether,
“in light of all of the evidence,” the State “can establish beyond a reasonable
doubt that the error did not contribute to or affect the verdict.” Valverde,
220 Ariz. at 585 ¶ 11, 208 P.3d at 236 (internal quotation marks omitted)
(quoting Bible, 175 Ariz. at 588, 858 P.2d at 1191).




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                       STATE V. PEDROZA-PEREZ
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                           III.   CONCLUSION

¶18           We vacate the court of appeals’ decision and remand to allow
that court to consider whether the trial court’s error in limiting Pedroza-
Perez’s opening statement was harmless beyond a reasonable doubt.




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