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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     CORNELL WILSON, JR., Appellant.

                             No. 1 CA-CR 15-0626
                              FILED 8-30-2016


          Appeal from the Superior Court in Maricopa County
                       No. CR2014-108204-001
         The Honorable Charles Donofrio III, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eric Knobloch
Counsel for Appellee

Maricopa County Legal Defender’s Office, Phoenix
By Cynthia D. Beck
Counsel for Appellant
                            STATE v. WILSON
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Peter B. Swann and Judge Jon W. Thompson joined.


K E S S L E R, Judge:

¶1            Cornell Wilson, Jr. was tried and convicted for four counts of
aggravated driving or actual physical control of a motor vehicle while
under the influence of intoxicating liquor or drugs, non-dangerous, class 4
felonies with four prior felony convictions. On appeal, Wilson argues that
the superior court abused its discretion when it denied Wilson’s motion to
dismiss or suppress blood evidence and the prosecutor’s misconduct
during trial deprived Wilson of due process. For the reasons that follow,
we affirm Wilson’s convictions and sentences.

               FACTUAL AND PROCEDURAL HISTORY

¶2             Department of Public Safety Trooper L, on duty around the I-
17 and milepost 227, observed a vehicle being driven erratically and after
following it for several miles, activated his emergency lights and siren. The
vehicle responded slowly, went past an exit, and abruptly stopped in the
middle of the road, so Trooper L told the driver to pull over onto the nearby
frontage road. Trooper T arrived at the scene soon after Trooper L made
contact with the vehicle and observed the subsequent events.

¶3           Trooper L walked up to the car, noticed the windows were
tinted extremely dark, and knocked on the back window. The driver
opened the front door and Trooper L smelled a strong odor of alcohol
coming from inside the vehicle. He identified Wilson as the driver and
noticed Wilson was disoriented and fumbled with his keys; moments later
Wilson locked his keys in the vehicle.

¶4           Trooper L noticed Wilson’s slurred speech and bloodshot,
red, and watery eyes—both signs of impairment. He told Wilson the reason
he pulled him over, and smelled alcohol on Wilson’s breath. Wilson told
Trooper L that he was going to Phoenix; however, he was traveling
northbound toward Flagstaff. Then, Wilson told Trooper L: “We both
know I shouldn’t be driving. My license is suspended. Just take me to jail.”
Trooper L asked Wilson for his driver’s license, and Wilson handed him an



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                             STATE v. WILSON
                            Decision of the Court

Arizona Identification Card. Wilson knew his license was suspended.
Trooper L also asked Wilson if he consumed any alcoholic beverages and
Wilson replied that he had consumed four to five beers thirty minutes prior.

¶5           Trooper L then administered standardized field sobriety tests.
First he administered the Horizontal Gaze Nystagmus, and received all six
clues of nystagmus on Wilson. Wilson refused to do the other two
standardized field sobriety tests and exclaimed: “Just, look, just arrest me,
man. We both know I’m drunk.” Trooper L then arrested Wilson and
transported him to the Sheriff’s Office at Anthem.

¶6           At the Sheriff’s Office, Trooper L told Wilson that Arizona law
required him to submit to a breath or blood test, but he refused. Trooper L.
then obtained a warrant and Trooper T, a phlebotomist, drew Wilson’s
blood. Trooper T attempted to draw two vials of blood; one vial for testing
and one to provide to the defendant for his own testing. Trooper T was able
to draw one full vial of blood and only a flash of blood in the second vial.
Trooper T understood that under DPS guidelines, he should not draw any
more blood after two unsuccessful attempts. He sealed the blood that he
was able to draw in a blood kit box. Trooper L then read Wilson his
Miranda1 rights. The blood testing showed that Wilson had a BAC of 0.150.2
Using retrograde analysis, the evidence showed that within two hours of
driving, Wilson’s BAC was most likely in the range of 0.172 to 0.217.

¶7            The jury returned a guilty verdict on all four counts. At
sentencing, the superior court found that the State’s allegations of four prior
felony convictions were proven.         The court sentenced Wilson to
presumptive, concurrent sentences of ten years of imprisonment for each
count, with seventy-six days of presentence incarceration credit.

¶8            Wilson timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
Statutes (“A.R.S.”) sections 12-120.21(A)(1) (2003), 13-4031 (2010), and -
4033(A)(1) (2010).

                               DISCUSSION


1      Miranda v. Arizona, 384 U.S. 436 (1966).

2     The person testing the samples determined that it would take
approximately six standard drinks for someone of Wilson’s height and
weight to reach that blood alcohol concentration.



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                            STATE v. WILSON
                           Decision of the Court

I.     Motion to Suppress Blood Evidence

¶9           Wilson argues that the superior court abused its discretion
when it denied Wilson’s motion to suppress the blood evidence. He argues
that Trooper T’s affirmative conduct prevented the preservation of an
untested sample, therefore Trooper T should have been required to advise
Wilson that he had a right to an independent test. Because he was not told
about that right, he argues the court should have granted his motion to
dismiss for the violation of his due process right to obtain exculpatory
evidence, and that the resulting convictions and sentences should be
reversed.

       A.     Relevant Facts

¶10           Before trial, Wilson moved to dismiss or suppress all blood
evidence pursuant to Arizona Rules of Criminal Procedure (“Rule”) 16.2
based on an alleged violation of his right to gather independent evidence of
sobriety. The State responded that more than enough blood remained in
the vial for Wilson to obtain an independent test and that Arizona law does
not require police to inform DUI suspects of their right to independent
testing.

¶11            At the evidentiary hearing, the State stipulated that no one
advised Wilson of his right to have an independent test. Trooper T testified
that on his first attempt to draw blood from Wilson, he did not get inside
the vein. On his second try, he drew one full vial but Wilson was pulling
his arm away, and when he inserted the second vial, there was a flash of
blood and the blood stopped. Trooper T believed Wilson was playing
games to keep him from drawing blood. At that point, he elected to stop
the draw. He did not call another phlebotomist to draw more blood
because it would have taken another hour or more for someone to show up.

¶12            KZ, who conducted the lab tests, testified that contamination
in the single vial of Wilson’s blood was highly unlikely due to her methods.
She said that every time she retested a sample, she received consistent
results. KZ used between one to two milliliters of blood for the test and left
at least seven milliliters remaining. She testified that the remaining blood
was enough for a defendant to retest the blood. She would be comfortable
retesting Wilson’s blood from the remaining blood in the one vial. MG, a
defense forensic toxicologist, testified that to get a true independent
analysis, a sample should be collected contemporaneously with the first
sample that has been sealed, unopened, and unused by another laboratory.
KZ testified again that she only handled one blood sample at a time, never



                                      4
                             STATE v. WILSON
                            Decision of the Court

mixed any control solutions into Wilson’s blood that may have contained
ethanol, and never poured anything at all into his blood.

¶13           The superior court denied Wilson’s motion to dismiss or
suppress the blood evidence. It held that neither statutes nor case law
supported the defense’s position that a defendant has a right to have a
second vial of blood unopened by the criminalist to test in order to have an
independent blood test. It also held the testimony did not support the claim
that Wilson was denied an independent blood draw.

       B.     Standard of Review

¶14            We will not disturb a superior court’s ruling on a motion to
suppress absent a clear abuse of discretion. State v. Carter, 145 Ariz. 101,
110 (1985). We only consider the evidence presented at the evidentiary
hearing and view that evidence in the light most favorable to upholding the
superior court’s ruling. State v. Estrada, 209 Ariz. 287, 288, ¶ 2 (App. 2004).
“We defer to the trial court’s factual findings that are supported by the
record and are not clearly erroneous.” Id. (quoting State v. Rosengren, 199
Ariz. 112, 116, ¶ 9 (App. 2000)). The trial court determines the credibility of
the witnesses, but we review de novo the trial court’s legal conclusions and
issues of statutory interpretation. Estrada, 209 Ariz. 287 at 288, ¶ 2.

       C.     Analysis

¶15           Wilson argues the police officers interfered with his due
process right to obtain an independent sample of his blood because they
should have told him of his right to an independent test given that there
was not a second vial of blood for him to test. We disagree.

¶16           A DUI suspect has a “due process right to gather exculpatory
evidence.” State v. Olcan, 204 Ariz. 181, 183, ¶ 8 (App. 2003). As codified in
the relevant statute A.R.S. § 28-1388(C) (1999):

       The person tested shall be given a reasonable opportunity to
       arrange for any physician, registered nurse or other qualified
       person of the person’s own choosing to administer a test or
       tests in addition to any administered at the direction of a law
       enforcement officer. The failure or inability to obtain an
       additional test by a person does not preclude the admission
       of evidence relating to the test or tests taken at the direction
       of a law enforcement officer.




                                      5
                            STATE v. WILSON
                           Decision of the Court

However, “[w]e have consistently held that police are not obliged to inform
DUI suspects of their right to independent testing.” State v. Superior Court
In and For Cnty. of Yavapai (Norris), 179 Ariz. 343, 345 (App. 1994). See also
Van Herreweghe v. Burke, 201 Ariz. 387, 390, ¶ 10 (App. 2001) (“Petitioner’s
lack of knowledge is not a barrier erected by the State in the defendant’s
path to independent testing.”); State v. Ramos, 155 Ariz. 153, 156 (App. 1987)
(“Failure of the officer to inform the [DUI] suspect of his right to an
independent test does not constitute interference with the ability to get an
independent test.”). Further, “[p]olice officers are not required to take the
initiative or even assist in procuring any evidence on behalf” of a DUI
suspect. Smith v. Cada, 114 Ariz. 510, 512 (App. 1977).

¶17            The only Arizona case that found a duty to inform a DUI
suspect of his or her right to an independent test is Montano v. Superior
Court, 149 Ariz. 385 (1986). However, Montano involved a unique set of
circumstances “where the arresting officers did not have access to a
breathalyzer and did not invoke implied consent.” Norris, 179 Ariz. at 345.
This situation resulted in a narrow exception to the general rule and is
limited to its factual situation. Id. As we explained in Ramos, 155 Ariz. at
155, “absent the unique conditions in Montano no Arizona court has ever
held that a DWI suspect must be told of his right to get an independent
test.” “Had the legislature intended to create such a requirement, we are
confident that it could and would have done so.” Norris, 179 Ariz. at 347.

¶18            We find no exception to this rule simply because the State was
not able to draw a second vial of blood for use by Wilson. Montano is
limited to the situation where the State takes no blood or breath samples,
thus requiring the State to inform the defendant of his right to have a test
done to refute the State’s subjective evidence of inebriation. Here, a usable
amount of blood sample was taken and used as evidence. Wilson’s ability
to test that sample does not affect whether the police have to tell him of his
right to an independent draw and test. Further, Wilson’s failure to obtain
an additional test “does not preclude the admission of evidence relating to
the test or tests taken at the direction of a law enforcement officer.” A.R.S.
§ 28-1388(C).

¶19            Wilson argues Trooper T’s affirmative conduct prevented the
preservation of an untested sample, implying that Trooper T interfered
with Wilson’s right to obtain an independent sample. The State may not
unreasonably interfere with a defendant’s efforts to obtain an independent
sample. Olcan, 204 Ariz. at 184, ¶ 12. Unreasonable interference occurs
when police deny a suspect access to counsel, McNutt v. Superior Court, 133
Ariz. 7, 9 (1982); unreasonably deny a suspect bail release, State v. Ganske,


                                      6
                             STATE v. WILSON
                            Decision of the Court

114 Ariz. 515, 516-17 (App. 1977) (holding that interference with Ganske’s
right to obtain independent evidence was “painfully clear” because his bail
effort was experiencing inordinate delay); or unreasonably delay the
transportation of a defendant to a hospital to obtain independent testing.
Amos v. Bowen, 143 Ariz. 324, 328 (App. 1984).

¶20           Trooper T’s actions do not constitute unreasonable
interference with Wilson’s right to obtain an independent sample. Viewing
the evidence in the light most favorable to affirming the superior court,
Estrada, 209 Ariz. at 288, ¶ 2, Trooper T elected to stop drawing Wilson’s
blood because Wilson appeared to be playing games with him and because
the blood just stopped flowing. Although Trooper T did not obtain two
vials of Wilson’s blood, Wilson does not cite any authority the police were
required to take two samples. Further, Wilson was always free to conduct
an independent test. He was read his Miranda rights and therefore could
have contacted counsel to receive information on his right to an
independent draw and testing. Alternatively, there is evidence in the
record that any independent testing of the remaining State’s sample would
not have affected the results of that testing. The troopers did not deny
Wilson access to counsel, bail release, or unreasonably delay transportation
to receive independent testing. Therefore, the superior court did not abuse
its discretion when it denied Wilson’s motion to suppress the blood
evidence or dismiss the case because the officers did not interfere with
Wilson’s due process right to obtain an independent sample.

II.    Prosecutorial Misconduct

¶21             Wilson argues he is entitled to a reversal of convictions and
sentences due to prosecutorial misconduct. He argues that the prosecutor
vouched for the troopers’ credibility in her closing argument and impugned
defense counsel throughout her arguments to the jury. The cumulative
effect of the misconduct, Wilson argues, “so permeated the atmosphere of
the trial that it functioned to deprive Wilson of a fair trial.”

       A.     Standard of Review

¶22             Because the superior court is in the best position to determine
the effect of a prosecutor’s comments, we will not disturb a superior court’s
ruling unless there exists a clear abuse of discretion. State v. Newell, 212
Ariz. 389, 402, ¶ 61 (2006). To warrant a reversal, the misconduct must be
“so pronounced and persistent that it permeates the entire atmosphere of
the trial.” Id. (quoting State v. Lee, 189 Ariz. 608, 616 (1997)). A defendant
must show (1) misconduct is present and (2) a reasonable likelihood exists



                                      7
                             STATE v. WILSON
                            Decision of the Court

that the misconduct could have affected the jury’s verdict, thereby denying
defendant a fair trial. State v. Moody, 208 Ariz. 424, 459, ¶ 145 (2004). If the
defendant objected to the misconduct, we will only reverse for harmless
error. State v. Martinez, 230 Ariz. 208, 214, ¶ 25 (2012). If the defendant
failed to object to the alleged misconduct, we review the matter for
fundamental error, with the defendant having the burden to show
prejudice. Id.

       B.     Vouching

¶23           Wilson argues that the prosecutor twice vouched for the
troopers’ credibility in her rebuttal closing argument. Vouching has two
forms: “(1) where the prosecutor places the prestige of the government
behind its [evidence] [and] (2) where the prosecutor suggests that
information not presented to the jury supports the [evidence].” Newell, 212
Ariz. at ¶ 62, (quoting State v. Vincent, 159 Ariz. 418, 423 (1989)). Wilson
argues that the misconduct falls into both categories. He argues the
prosecutor placed the prestige of the government behind the law
enforcement witnesses when she argued the troopers had no motivation to
lie because their careers would be on the line. He also argues there was no
evidence admitted at trial that suggested the troopers faced disciplinary
action.

¶24           At trial, the defense counsel stated to the jury:

       Perhaps he [Trooper L] smelled alcohol. Perhaps he saw
       bloodshot, watery eyes. I don’t know if you can see from the
       distance you’re sitting at, but Mr. Wilson’[s] eyes are always
       bloodshot and watery. And so to assume that they’re
       bloodshot and watery because he’s consumed alcohol, they’re
       just assumptions by the officer.

The prosecutor objected on the basis of vouching, and the superior court
sustained the objection.

¶25           Later, the defense counsel questioned, “Does [Trooper T]
have motive to lie . . . what else are they making a mistake or lying about in
this case?” In her rebuttal argument, the prosecutor stated to the jury:

       And the defense lawyer wants you to believe that the only
       explanation for how you heard about that statement is that
       the officer either wrote it down wrong or that he’s lying?
       Really? He’s just making it up. He’s going to risk his career



                                       8
                             STATE v. WILSON
                            Decision of the Court

       and his livelihood to pin this defendant with a DUI, this
       person that he’s never met before in his life? Really?

The defense counsel objected on the basis of vouching, but the court
overruled the objection. The prosecutor continued to argue, “Why would
these officers risk their livelihood, risk their jobs and commit perjury?” The
defense counsel again unsuccessfully objected on the basis of vouching.

¶26            “[P]rosecutorial comments which are fair rebuttal to areas
opened by the defense are acceptable.” State v. Hernandez, 170 Ariz. 301,
307-08 (App. 1991). The statements must be considered in context. State v.
Ramos, 235 Ariz. 230, 238, ¶ 28 (App. 2014). Further, rhetorical questions do
not rise to the level of misconduct. Id. at ¶ 30. For example, in Ramos we
held the following rhetorical questions did not rise to the level of
misconduct: “[W]hat motive would the police have to lie in a case like this?”
and “[W]hat motive would they have to lie or fabricate any evidence?” 235
Ariz. at ¶ 30.

¶27            We conclude there was no prosecutorial misconduct. The
prosecutor’s questions regarding Trooper T risking his career were
responses to the defense counsel’s question of whether Trooper T had
motivation to lie. The prosecutor’s statements were a fair rebuttal to the
defense counsel’s discussion of lying officers, of which the defense counsel
first opened the door. Further, several of the prosecutor’s questions were
similar to rhetorical questions in Ramos and therefore do not rise to the level
of misconduct.

¶28            Even if the prosecutor’s conduct rose to the level of
misconduct, there must a reasonable likelihood that the misconduct could
have affected the jury’s verdict. Moody, 208 Ariz. at ¶ 145. Wilson argues
that because the objections were overruled, the jury considered evidence
that it should not have: that the troopers would have lost their jobs if “their
version of the events was untrue.” But, we presume the jury follows the
superior court’s instructions. Newell, 212 Ariz. at 403, ¶ 68. The court
instructed the jury to determine the facts only from the evidence produced
in court, and that evidence is witness testimony and exhibits introduced in
court. It also instructed that comments by counsel are not evidence. There
is no evidence that the jury did not follow the jury instructions. Thus,
Wilson’s argument is unconvincing. We find no prosecutorial misconduct
in the form of vouching.




                                      9
                             STATE v. WILSON
                            Decision of the Court

       C.     Impugning Defense Counsel

¶29            Wilson also argues that the prosecutor impugned defense
counsel by setting “the theme of denigrating the defense as a ‘distraction
from the truth’ right from the beginning of her argument to the jury.” He
argues that she repeated sarcastic and denigrating comments throughout
the rebuttal closing argument, making it clear she was impugning Wilson’s
counsel. Further, he argues that the prosecutor’s remarks went to the heart
of his defense and “sought to cast him as a conspirator in defense counsel’s
theater of ‘distraction.’” He contends the prosecutor’s “[portrayal of] the
defense team as trying to deceive the jury while the State is just telling the
jury the truth” affected the jury’s verdict.

¶30           In her rebuttal closing argument, the prosecutor stated, “Now
[Wilson] thinks that if he can distract you enough from the truth that you’re
not going to hold him accountable for his choices.” Later, she stated,
“Here’s an explanation that the defendant – I’m sorry – the defense lawyer
conveniently didn’t consider.” She continued: “Now the defense lawyer
wants you to believe that because maybe, in some realm of possibility, no
matter how remote, it’s possible that this instrument gave two false
positives in a row, that that’s reasonable doubt. That is not reasonable
doubt. That’s desperation.”

¶31           Because the defense failed to object to this conduct, we review
for fundamental error. Prosecutorial misconduct must permeate the entire
atmosphere of the trial. Newell, 212 Ariz. at 402, ¶ 61. A jury argument that
impugns the integrity or honesty of opposing counsel is improper. State v.
Hughes, 193 Ariz. 72, 86, ¶ 59 (1998). However, the “proper subject” of
closing argument is to criticize defense theories and tactics. Ramos, 235 Ariz.
at ¶ 25 (quoting United States v. Sayetsitty, 107 F.3d, 1405, 1409 (9th Cir.
1997)). Prosecutors have “wide latitude in presenting their closing
arguments to the jury.” Ramos, 235 Ariz. 237, at ¶ 22 (quoting State v. Jones,
197 Ariz. 290, 305, ¶ 37 (2000)). When the prosecutor’s comments are not
directed at the defense attorney, the state does not impugn the defense
counsel. State v. Velazquez, 216 Ariz. 300, 312, ¶ 52 (2007). But, we are
concerned with the prosecutor’s comments when they “suggest to the jury
that defense counsel is being deceitful.” State v. Denny, 119 Ariz. 131, 134
(1978).

¶32         Some of the prosecutor’s statements were borderline
improper because she pointed directly to the defense counsel acting in
desperation. Closing arguments are to criticize defense theories, not
defense counsel. However, because prosecutors have such wide latitude,


                                      10
                             STATE v. WILSON
                            Decision of the Court

we find that the prosecutor’s statements do not amount to prosecutorial
misconduct.

¶33           Further, Wilson still has the burden of showing that absent
improper comments, a reasonable jury could have reached a different
result. Ramos, 235 Ariz. at 236, ¶ 18. This is an especially hard burden to
meet when the misconduct was not persistent and pervasive and the
evidence of the defendant’s guilt was overwhelming. State v. Morris, 215
Ariz. 324, 339, ¶ 67 (2007). Wilson has not shown prejudice. Only one
statement was made which can be considered impugning the honesty of
defense counsel, the court instructed the jury that closing arguments are not
considered evidence, and the evidence of Wilson’s guilt was overwhelming
given his confessions to being drunk and the laboratory tests. Wilson has
not shown that the jury failed to follow the court instructions and instead
considered the prosecutor’s statements as evidence.

¶34            We do not condone the prosecutor’s statements and
encourage the prosecutor to avoid ad hominem attacks against opposing
counsel. However, the attack was not pervasive, the jury is presumed not
to have considered it and it did not affect the jury verdict given the evidence
presented. Accordingly, there was no prosecutorial misconduct requiring
a mistrial or reversal.

                               CONCLUSION

¶35          For the reasons stated above, we affirm Wilson’s convictions
and sentences.




                          Amy M. Wood • Clerk of the court
                          FILED: AA




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