                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                     RODRIGO ROMERO JR., Appellant.

                             No. 1 CA-CR 13-0263
                              FILED 07-29-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2010-137340-002
               The Honorable Joseph C. Kreamer, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General's Office, Phoenix
By Michael T. O'Toole
Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant
                           STATE v. ROMERO
                           Decision of the Court



                      MEMORANDUM DECISION

Chief Judge Diane M. Johnsen delivered the decision of the Court, in
which Presiding Judge Margaret H. Downie and Judge Patricia K. Norris
joined.


J O H N S E N:

¶1            Rodrigo Romero Jr. was convicted of one count each of first-
degree murder, conspiracy to commit drive-by shooting, drive-by
shooting, and assisting a criminal street gang; seven counts of aggravated
assault; and several other charges, all arising from his involvement in a
2006 drive-by shooting in Chandler. The superior court imposed a
sentence of natural life in prison for the first-degree murder, followed by
consecutive sentences totaling 102 years. Romero filed a timely notice of
appeal. We have jurisdiction pursuant to Arizona Revised Statutes
sections 12-120.21(A)(2) (2014), 13-4031 (2014) and -4033(A) (2014).1 For
the reasons that follow, we affirm the convictions and resulting sentences.

                              DISCUSSION

¶2            Romero argues the prosecutor engaged in repeated
misconduct during the trial. Because Romero failed to object to any of the
claimed misconduct at trial, he bears the burden of establishing that the
prosecutor engaged in misconduct, that the misconduct constituted
fundamental error, and that the misconduct caused him prejudice. See
State v. Henderson, 210 Ariz. 561, 568, ¶ 22, 115 P.3d 601, 608 (2005). Error
is fundamental when it goes to the foundation of a defendant's case, takes
from him a right essential to his defense, and is error of such magnitude
that he could not possibly have received a fair trial. Id. at 567, ¶ 19, 115
P.3d at 607. To prove prejudice, a defendant must show that a reasonable
jury or judge could have reached a different result absent the error. Id. at
569, ¶ 27, 115 P.3d at 609.

¶3            "[P]rosecutorial misconduct 'is not merely the result of legal
error, negligence, mistake, or insignificant impropriety, but, taken as a


1       Absent material revision after the date of the alleged offense, we
cite a statute's current version.



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                            STATE v. ROMERO
                            Decision of the Court

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.'" State v.
Aguilar, 217 Ariz. 235, 238-39, ¶ 11, 172 P.3d 423, 426-27 (App. 2007)
(quoting Pool v. Superior Ct. in and for Pima County, 139 Ariz. 98, 108-09, 677
P.2d 261, 271-72 (1984)). To determine whether a prosecutor's remarks are
improper, we consider whether the remarks called to the attention of
jurors matters they would not be justified in considering, and the
probability, under the circumstances, that the jurors were influenced by
the remarks. State v. Jones, 197 Ariz. 290, 305, ¶ 37, 4 P.3d 345, 360 (2000).

¶4             "To prevail on a claim of 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. Morris, 215 Ariz. 324, 335, ¶ 46, 160 P.3d 203, 214
(2007) (citation and internal punctuation omitted). "The misconduct must
be 'so pronounced and persistent that it permeates the entire atmosphere
of the trial.'" Id. "Prosecutorial misconduct constitutes reversible error
only if (1) misconduct exists and (2) 'a reasonable likelihood exists that the
misconduct could have affected the jury's verdict, thereby denying
defendant a fair trial.'" Id.

¶5            Romero argues first that the prosecutor engaged in
misconduct in his opening statement when he contrasted the dress clothes
Romero was wearing at trial with the hooded sweatshirt he wore during
the drive-by shooting, and by eliciting testimony from a police detective
that the gang tattoo on Romero's forearm was not visible at trial because it
was covered by his shirt. Romero concedes that what he wore during the
drive-by shooting was relevant evidence. The gang tattoo on his forearm
also was relevant to the charge of assisting a criminal street gang, as well
as to provide a motive for the remaining charges. In this context, the
prosecutor's brief references to the clothing Romero wore at trial did not
improperly influence the jurors. See State v. Dunlap, 187 Ariz. 441, 462-63,
930 P.2d 518, 539-40 (App. 1996) (court will not assume prosecutor
intended the most sinister meaning of ambiguous remark).

¶6              Nor was fundamental error present in the prosecutor's
questions eliciting testimony concerning Romero's lack of nervousness at
trial or in the prosecutor's statements during closing argument suggesting
that Romero was likewise "bold" after the shooting, or in the prosecutor's
reference in closing to Romero staring at one of the witnesses in court.




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                           STATE v. ROMERO
                           Decision of the Court

¶7            Defense counsel cross-examined one of the investigating
officers about Romero's demeanor as he was questioned after the
shooting; the officer testified Romero did not seem "particularly nervous"
or anxious. Shortly thereafter, the prosecutor asked another officer
whether Romero looked nervous as he sat in court watching the
proceedings. Then, during closing argument, defense counsel recalled the
testimony about Romero's demeanor after the incident, arguing a guilty
person would not be found calmly walking nearby the crime scene. In
rebuttal, the prosecutor argued that Romero acted with bravado after the
crime, and observed that Romero similarly was "not nervous" in court.

¶8            Romero cites State v. Payne, 233 Ariz. 484, 314 P.3d 1239
(2013), a decision issued after he was tried, in which our supreme court
urged prosecutors to proceed cautiously when asking "jurors to consider a
defendant's affect at trial . . . given its dubious relevance and potential to
implicate a defendant's right not to testify." Id. at 514-15, ¶¶ 130-31, 314
P.3d at 1269-70. The court declined "to set forth an absolute rule that such
statements are always improper, however, preferring to let trial courts
assess the totality of the circumstances in each case." Id. at 515, ¶ 131, 314
P.3d at 1270. In Payne, a capital case, the court concluded the prosecutor's
closing argument contrasting the defendant's lack of emotion at trial with
the excessive emotion he displayed during his interrogation was
improper, but did not constitute fundamental error. Id.

¶9            Romero cites cases from other jurisdictions reversing
convictions because of comments that may have caused jurors to rely on
improper character evidence or evidence outside the record, and
impinged on the defendant's right not to testify. See United States v.
Schuler, 813 F.2d 978, 979-81 (9th Cir. 1987) (prosecutor commented in
closing that nontestifying defendant's laughter during witness's testimony
demonstrated lack of remorse); United States v. Pearson, 746 F.2d 787, 796
(11th Cir. 1984) (prosecutor argued that nontestifying defendant appeared
nervous and afraid at trial); United States v. Carroll, 678 F.2d 1208, 1209-10
(4th Cir. 1982) (prosecutor argued that nontestifying defendant's
courtroom behavior indicated he was more familiar than his attorney with
surveillance photos, demonstrating he was present at the scene of the
crime); Bryant v. State, 741 A.2d 495, 498-502 (Md. Ct. Spec. App. 1999)
(prosecutor argued "we all saw" nontestifying defendant's inability to look
witness in the eye, asserting that meant defendant "knew [witness] was
telling the truth"); Bowser v. State, 816 S.W.2d 518, 521-24 (Tex. Ct. App.
1991) (prosecutor argued nontestifying defendant's passive demeanor at
trial showed lack of compassion).



                                      4
                           STATE v. ROMERO
                           Decision of the Court

¶10            In each of the cases Romero cites, however, the prosecutor's
remarks were so extreme that they drew objections from defense counsel.
Here, in contrast, the prosecutor's remarks were not egregious enough to
cause Romero to object to them during trial. We conclude the prosecutor's
eliciting testimony about Romero's lack of nervousness at trial and
comparing it to Romero's "bold" conduct after the drive-by shooting was
improper but did not rise to the level of fundamental, reversible error.

¶11             Romero also argues that during closing argument, the
prosecutor said he had stared at a witness as she testified. The record
contains nothing to inform us about whether, in fact, Romero was staring
at the witness or the manner in which he may have been doing so. That
being said, we do not construe the prosecutor's comment to imply that
Romero was guilty. The prosecutor made the comment in urging the jury
to believe an account the witness had given during a private interview to
detectives, rather than the account the witness gave in court. ("If you
believe [the witness] before the defendant was staring at her, before the
gallery was full when she testified, when she was talking to [a detective]
after 2009, if you believe her, this case is proven start to finish.").

¶12           In all, we are not persuaded that the prosecutor's references
to Romero's nontestifying demeanor were intentionally improper, see
Aguilar, 217 Ariz. at 238-39, ¶ 11, 172 P.3d at 426-27, or so pervasive that
they deprived Romero of a fair trial, as necessary to reverse on this basis.
See Morris, 215 Ariz. at 335, ¶ 46, 160 P.3d at 214. Nor are we convinced
that, absent the purported misconduct, a reasonable jury could have
reached a different verdict, as necessary to show prejudice on
fundamental error review. Henderson, 210 Ariz. at 569, ¶ 27, 115 P.3d at
609.

¶13            Romero also argues the prosecutor engaged in improper ad
hominem attacks on defense counsel. Although it is improper for a
prosecutor to attack the integrity of defense counsel, it is not improper to
tell the jury that the defense's theory of the case confuses the issues or is
misleading. See State v. Hughes, 193 Ariz. 72, 86, ¶ 59, 969 P.2d 1184, 1198
(1998) ("Jury argument that impugns the integrity or honesty of opposing
counsel is . . . improper."); United States v. Sayetsitty, 107 F.3d 1405, 1409
(9th Cir. 1997) ("Criticism of defense theories and tactics is a proper
subject of closing argument").

¶14          Romero asserts the prosecutor improperly argued that
defense counsel "tried to make up" benefits a witness received for her
testimony, argued outside the record, and would call a witness who could


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                           STATE v. ROMERO
                           Decision of the Court

not remember every minor detail a liar. In each cited instance, the
prosecutor was asserting that defense counsel was trying a strategy that
clearly failed. This attack on defense counsel's strategies was not
improper. See State v. Amaya-Ruiz, 166 Ariz. 152, 171-72, 800 P.2d 1260,
1279-80 (1990) (prosecutor's arguments that defense counsel "blind-sided
witnesses," created a "smoke screen," and relied on "innuendo and
inference" to support her "outrageous" argument was "not improper . . .
and certainly did not rise to the level of fundamental error.").

¶15           Nor did the prosecutor's remarks in closing argument that
he was "tired of the so-called monopoly that defendants get on getting this
case right" and that the defendant did not "get to lecture parents who bury
children about sympathy" constitute fundamental, reversible error.
Although the prosecutor’s comments were improper as an appeal to the
jurors’ sympathy for the parents of the murder victim, when viewed in
context they did not rise to the level of fundamental prejudicial error. The
prosecutor’s principal point was that the State had presented what he
referred to as a “mountain of evidence” and that its case did not rest on
sympathy and the jury should not decide the case based on sympathy:
“Go over your notes. Look at everything but please don’t reduce this
down to sympathy . . . .”

¶16           We also disagree with Romero's contention that the State
"blatantly ignor[ed] the ruling of the trial court" sustaining an objection to
an inquiry on the gang affiliation of an acquaintance, by attempting to
elicit adequate foundation and then asking the question again in a
different way. The prosecutor's belief that he had elicited the necessary
foundation to re-ask the question was not unreasonable.

¶17           Finally, reversal is not required by the cumulative effect of
the alleged misconduct. See Gallardo, 225 Ariz. at 568, 569-70, ¶¶ 35, 45-46,
242 P.3d at 167, 168-69. The vast majority of the claimed incidents of
misconduct were not improper, in light of the "wide latitude" prosecutors
are given during closing argument. See Jones, 197 Ariz. at 305, ¶ 37, 4 P.3d
at 360. Although we have concluded that the prosecutor did engage in
isolated instances of improper conduct, we do not view even these
missteps as constituting intentional misconduct with indifference to the
prejudice caused. See State v. Gallardo, 225 Ariz. 560, 568, ¶ 35, 242 P.3d
159, 167. On this record, we conclude that the alleged instances of
prosecutorial misconduct, even considered cumulatively, did not
constitute fundamental, prejudicial error.




                                      6
                        STATE v. ROMERO
                        Decision of the Court

                           CONCLUSION

¶18          For the foregoing reasons, we affirm Romero's convictions
and sentences.




                             :gsh




                                    7
