                          NOTICE: NOT FOR PUBLICATION.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.

                    CHRISTOPHER ALONZO, Appellant.

                             No. 1 CA-CR 14-0029
                              FILED 11-13-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2013–103283-001
                  The Honorable Daniel J. Kiley, Judge

                                  AFFIRMED


                                   COUNSEL

Office of the Attorney General, Phoenix
By Craig W. Soland
Counsel for Appellee

Office of the Legal Defender, Phoenix
By Cynthia D. Beck
Counsel for Appellant
                           STATE v. ALONZO
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Maurice Portley joined.


H O W E, Judge:

¶1           Christopher Alonzo appeals from his convictions and
sentences imposed for one count each of armed robbery, kidnapping, and
theft of means of transportation. Alonzo argues that the State improperly
commented on his post-Miranda1 right to remain silent and engaged in
other misconduct. On those bases, Alonzo contends that the trial court
should have granted his motions for a mistrial and a new trial. For the
following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY2

¶2            A.G. was driving his Chevrolet Tahoe when he stopped at an
intersection. Alonzo and another individual brandishing handguns entered
A.G.’s vehicle, pointed their weapons at him, and directed A.G. to drive to
a park. A.G. complied.

¶3            Upon arriving at the park, Alonzo got out of the Tahoe and
approached the driver’s side. Alonzo and other armed individuals at the
park took “everything” from A.G., including his wallet and wedding ring.
They ordered A.G. to leave the park on foot. He did so, and then contacted
the police. A.G. had never seen Alonzo before this incident.

¶4           Police found A.G.’s abandoned Tahoe near the park. They
found Alonzo’s fingerprints on the vehicle’s exterior windshield near the
driver’s side door, and A.G. subsequently identified Alonzo in a
photographic line-up.

¶5          Detective Dominguez then interviewed Alonzo, who was in
custody at the Department of Corrections on an unrelated charge.
Dominguez read Alonzo his Miranda rights, and “Alonzo agreed to give up

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

2      We review the facts in the light most favorable to sustaining the
verdicts. See State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).


                                      2
                           STATE v. ALONZO
                           Decision of the Court

those rights and speak with [the detective].” Dominguez informed Alonzo
that he wanted to discuss the robbery incident involving A.G. Alonzo stated
that he “didn’t know what [Dominguez] was talking about[,]” and Alonzo
denied ever having touched or driven a Chevrolet Tahoe. When Detective
Dominguez informed Alonzo that his fingerprints had been discovered on
A.G.’s vehicle, Alonzo admitted to having driven a friend’s Tahoe that
matched the description of A.G.’s a few days before the robbery incident.
Alonzo continued, however, to deny involvement in the armed robbery.
After the interview ended, Alonzo never contacted Detective Dominguez
to provide an alternative explanation for the presence of his fingerprints on
A.G.’s vehicle.

¶6           Approximately six weeks later, the State charged Alonzo with
one count each of armed robbery, a class two dangerous felony (Count 1);
kidnapping, a class two dangerous felony (Count 2); and theft of means of
transportation, a class three felony (Count 3).

¶7            At trial, Alonzo testified he had met A.G. two or three days
before the robbery incident. Specifically, Alonzo explained that as he was
waiting for a bus at the same location where A.G. was kidnapped, A.G.
approached in his Tahoe and beckoned Alonzo to the vehicle. Alonzo
testified he walked up to A.G., leaned against the driver side door with his
hand “right there by the door and by the window[,]” and A.G. asked
whether Alonzo knew “where to get some coke.” Alonzo said, “No,” and
A.G. left. Alonzo also testified that he has three prior felony convictions.

¶8           During Alonzo’s cross-examination, the following transpired:

      Q: Okay. This information that you’re telling the jury this
      afternoon, do you think that would be important for the
      police to have known prior to today?

      A: Yes, sir.

      Q: And yet you never made any effort to communicate this
      information with the police?

      A. I didn’t know nothing about this case.

      ....

      Q: Okay. Well, you’ve had access to the police report for how
      long now?




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                    STATE v. ALONZO
                    Decision of the Court

A: Since March.

Q: March. Okay. So for several months?

A: Yes, sir.

....

Q. And so you know the information it contains?

A. Yes, sir.

Q. And indeed you have reviewed the police report that
Detective Dominguez testified to this afternoon?

A. Yes, sir.

Q. That he authored?

A. Yes, sir.

Q. And so you’re well aware since March presumably that
none of this information that you’re presenting to the jury
here today is contained in Detective Dominguez’s report?

A. I don’t get what you’re saying.

Q. Okay. Well, you testified a moment ago that you have had
an opportunity to read his report and the police reports in this
case?

A. Yes, sir.

Q. So all this information that you’re telling the jury today,
none of it appears in any of those reports?

A. Yes, sir.

Q. So even though you have had prior contact with Detective
Dominguez, you have had multiple contacts with the criminal
justice system, you’re coming forth for the first time today and
telling us now a third version of what happened?

A. Officer Dominguez never told me nothing about this case.




                               4
                           STATE v. ALONZO
                           Decision of the Court

      Q. Fair enough. But you know what Detective Dominguez has
      written in his police report?

      A. That’s his testimony. That’s what he writes in his police
      report.

      Q. Okay. And granted, if that’s the case, when you read that
      report, didn’t you become concerned and think, gee, there’s
      more information I need to provide him because he doesn’t
      have it all?

¶9           Alonzo objected, arguing that the questions were
impermissible comments on his right to remain silent. The trial court
overruled the objection and denied Alonzo’s contemporaneous motion for
a mistrial.

¶10          In its rebuttal case, and without objection, the State elicited
the following from Detective Dominguez:

      Q. And you heard [Alonzo’s] testimony about a prior
      encounter with the victim at the same location at 19th Avenue
      and Desert Cove?

      A. Correct.

      Q. Is that the first time you had been provided with that
      information?

      A. Yes.

      Q. He never mentioned anything of that sort during your
      prior interview with him?

      A. No.

      ....

      Q. And it’s fair to say nothing that [Alonzo] told you when
      you interviewed him in November—or excuse me—when
      you interviewed him in custody indicated that there had been
      prior contact between him and the victim—

      A. No.

      Q. -- prior to the day the car was taken?


                                     5
                            STATE v. ALONZO
                            Decision of the Court

       A. Correct. He didn’t say anything.

¶11           In rebuttal closing argument, and again without objection, the
prosecutor stated: “[T]he defendant takes the stand and tells you version
number three, shaking up the chess table again, about this drug transaction,
that he never mentioned to the detective, which is the first thing an innocent
person would bring up, if they [sic] were interviewed.” The prosecutor also
challenged the persuasiveness of defense counsel’s closing arguments.

¶12             The jury returned guilty verdicts on all counts as charged.
The jury also found that the State proved the following aggravating factors:
presence of an accomplice, harm to the victim, and infliction or threatened
infliction of serious physical injury. Based on these findings and the court’s
determination that the State sufficiently proved Alonzo’s prior felony
convictions, the court imposed partially aggravated concurrent prison
terms of 16 years for Counts 1 and 2, and 12 years for Count 3.

¶13          Alonzo moved for a new trial, arguing that the prosecutor’s
questioning of Alonzo and statements made during closing argument
constituted misconduct. The trial court denied the motion.

                               DISCUSSION

¶14           In arguing that the trial court erred in denying his motions for
a mistrial and a new trial, Alonzo specifically contends that the prosecutor
deliberately engaged in prejudicial misconduct during Alonzo’s cross-
examination and in closing arguments by referring to Alonzo’s post-
Miranda silence. Alonzo also argues that the prosecutor committed
misconduct by impugning defense counsel during closing arguments.
Alonzo asserts that the cumulative effect of the misconduct requires
reversal.

¶15            To prevail on a claim of prosecutorial misconduct, a
defendant must demonstrate that “(1) misconduct is indeed present; and (2)
a reasonable likelihood exists that the misconduct could have affected the
jury’s verdict, thereby denying defendant a fair trial.” State v. Moody, 208
Ariz. 424, 459 ¶ 145, 94 P.3d 1119, 1154 (2004). Prosecutorial misconduct is
not merely “legal error, negligence, mistake, or insignificant impropriety,
but, taken as a whole, amounts to intentional conduct which the prosecutor
knows to be improper and prejudicial.” Pool v. Superior Court, 139 Ariz. 98,
108-09, 677 P.2d 261, 271–72 (1984). To justify reversal, the misconduct
“must be ‘so pronounced and persistent that it permeates the entire
atmosphere of the trial.’” State v. Lee, 189 Ariz. 608, 616, 944 P.2d 1222, 1230
(1997) (citation omitted). Even then, reversal is not required unless the


                                       6
                            STATE v. ALONZO
                            Decision of the Court

defendant was denied a fair trial. State v. Bible, 175 Ariz. 549, 600, 858 P.2d
1152, 1203 (1993). In short, our “focus is on the fairness of the trial, not the
culpability of the prosecutor.” Id. at 601, 858 P.2d at 1204.

¶16            When considering a motion for a mistrial based on
prosecutorial misconduct, a trial court should first consider whether the
prosecutor’s statements called jurors’ attention to matters the jury was not
justified in considering to determine its verdict. Lee, 189 Ariz. at 616, 944
P.2d at 1230. Further, as long as closing argument is based on evidence
presented and reasonable inferences therefrom, counsel may “suggest
ultimate conclusions.” Bible, 175 Ariz. at 602, 858 P.2d at 1205. Accordingly,
we first address whether the State improperly questioned Alonzo about his
post-Miranda silence.

I.     Post-Miranda Silence

¶17            In a criminal prosecution, the State may not refer to the
defendant’s decision to remain silent after receiving Miranda warnings.
State v. Guerra, 161 Ariz. 289, 296, 778 P.2d 1185, 1192 (1989) (citing Doyle v.
Ohio, 426 U.S. 610, 619 (1976)). A defendant who voluntarily speaks post-
Miranda, however, is not entitled to this constitutional protection. Id. “If a
defendant tells different stories during post-arrest questioning and at trial,
the prosecution may properly inquire into the prior inconsistent statements,
even though the prior statements involve ‘silence’ insofar as they omit facts
contained in the later story.” Id.

¶18           In State v. Stuck, 154 Ariz. 16, 739 P.2d 1333 (App. 1987), this
Court addressed whether the State committed fundamental error in closing
arguments by asserting that the defendant, who was charged with sexual
assault, waited until trial to explain the victim consented to sexual conduct
with him. The challenged arguments in that case included:

       [The defendant] has had access to the victim’s tape recorded
       interview. He sat through and listened through everyone’s
       testimony. He had five months before he ever told you
       anything about this alternate bondage defense . . . . Then the
       defendant started getting this—all this evidence, so that now
       after five months, now it’s consent and she consented to
       bondage.

Stuck, 154 Ariz. at 21, 739 P.2d at 1338.

¶19          This Court rejected the appellant’s argument that the
statements improperly commented on the defendant’s post-arrest silence


                                       7
                           STATE v. ALONZO
                           Decision of the Court

noting that in cases where a defendant voluntarily makes post-Miranda
statements and testifies to a “directly exculpatory version of the facts[]” at
trial, those prior statements may be used to impeach the defendant’s
credibility. Id. Additionally, we held that the defendant’s five months of
silence between the time he made the statements to police and his trial
testimony did not amount to an invocation of his right to silence. Id. at 22,
739 P.2d at 1339. Concluding no error occurred, we reasoned:

       [T]he prosecutor was not attacking appellant’s silence, but
       rather his fourth version of the events which he testified to at
       trial. He was merely commenting on how the fourth story
       attempted to include all the facts which emerged during the
       discovery process. The prosecutor’s tactic, in view of
       appellant’s first three statements, was a permissible attack on
       appellant’s testimony at trial, not a comment on any “silence”
       on appellant’s part.

Id. We find Stuck dispositive.

¶20           Alonzo does not dispute that he did not invoke his right to
remain silent during his interview with Detective Dominguez. Instead, after
being informed of his right to remain silent, Alonzo waived this right by
initially denying any involvement with A.G.’s vehicle. See State v. Trostle,
191 Ariz. 4, 14, 951 P.2d 869, 879 (1997) (“Answering questions after police
properly give the Miranda warnings constitutes waiver by conduct.”). And
after learning of his fingerprint, Alonzo continued to speak, explaining that
he had borrowed a friend’s Tahoe. Therefore, the prosecutor’s comments
regarding inconsistencies between the statements Alonzo made during his
police interview and Alonzo’s trial testimony were not improper. Alonzo
simply was not silent. Accordingly, no Doyle error occurred, and the
prosecutor did not engage in misconduct on this basis. See State v. Tuzon,
118 Ariz. 205, 207, 575 P.2d 1231, 1233 (1978) (“When one who has
voluntarily made statements to police officers after his arrest makes new
exculpatory statements at trial, the fact that he failed to make these
statements earlier may be used for impeachment.”).

¶21          Alonzo also argues that the prosecutor’s questions regarding
Alonzo’s post-Miranda silence improperly implied that Alonzo had an
obligation before trial to provide law enforcement with the exculpatory
testimony Alonzo offered at trial.

¶22         We disagree. The prosecutor’s questions did not imply that
Alonzo was obligated before trial to provide the State with the exculpatory



                                      8
                             STATE v. ALONZO
                             Decision of the Court

version of events that he testified to at trial. Rather, the jury was properly
instructed that Alonzo was “not required to produce evidence of any kind.”
By providing at trial an exculpatory explanation for the presence of his
fingerprints on A.G.’s vehicle that differed from his explanation at the
interview, Alonzo, as he properly concedes, made his credibility at trial the
central issue as to his guilt or innocence. See State v. Anderson, 110 Ariz. 238,
241, 517 P.2d 508, 511 (1973) (“When a defendant makes a statement at trial
which is inconsistent with an earlier statement[,] his credibility is clearly in
question.”). Alonzo’s pre-trial silence after the interview was highly
probative on this issue. Moreover, the record reflects the prosecutor did
not argue that Alonzo should be found guilty because of his post-interview
and pre-trial silence; instead, he argued the jury should disbelieve Alonzo’s
trial testimony. The prosecutor’s comments, therefore, were not
impermissibly geared toward either Alonzo’s right to remain silent or his
obligation to provide evidence. See Stuck, 154 Ariz. at 22, 739 P.2d at 1339.
In accord with Stuck, we conclude that no misconduct occurred on this
basis. And because we find no misconduct, we need not address the State’s
contention that we are constrained to fundamental error review on this
issue. See State v. Lavers, 168 Ariz. 376, 385, 814 P.2d 333, 342, (1991) (“Before
we may engage in a fundamental error analysis, however, we must first
find that the trial court committed some error.”).

II.    Closing Arguments

¶23            Alonzo contends that the prosecutor engaged in misconduct
by arguing an innocent person would have told Detective Dominguez the
exculpatory story that Alonzo testified to at trial. We disagree. Because
Alonzo had not invoked his right to remain silent at the police interview
and we determine the prosecutor’s cross-examination of Alonzo did not
constitute Doyle error or misconduct, we cannot conclude this argument
was improper. Rather, the argument was a proper comment on, and
inference from, Alonzo’s testimony. See Bible, 175 Ariz. at 602, 858 P.2d at
1205 (“[D]uring closing arguments counsel may summarize the evidence,
make submittals to the jury, urge the jury to draw reasonable inferences
from the evidence, and suggest ultimate conclusions.”); see also State v.
Raffaele, 113 Ariz. 259, 262, 550 P.2d 1060, 1064 (1976) (holding that a
prosecutor’s statements during closing argument regarding defendant’s
post-Miranda failure to give police the exculpatory explanation of criminal
conduct that defendant testified to at trial “were permissible comment[s]
on the creditability of the accused by comparing his court testimony with
his earlier out-of-court statements”).




                                        9
                           STATE v. ALONZO
                           Decision of the Court

¶24         Alonzo also contends that the State’s rebuttal closing
argument improperly impugned defense counsel’s integrity. Specifically,
Alonzo points to the prosecutor’s following statements:

       I am one of these odd individuals who likes to spend my
       Saturday nights watching things like the Learning Channel
       and History Channel, and we actually, at least, somewhat in
       my mindset, shared by the fascinating language and long ago,
       one of the best advice—some of the best advice I ever got from
       a practicing attorney, when I was in law school, is that
       language is the tool of the lawyer.

       And one of the terms that lawyers like to throw around quite
       a bit is that of red herring. And that was something I heard,
       maybe even used a few times before. I thought I better
       actually figure out what that term actually means.

       And there are a couple of different theories as to how that
       became part of the English language, but the consensus seems
       to be that in medieval England, poaching, stealing
       somebody’s game, got you hanged.

       And so what individuals would do, the poachers stealing
       game, would take red herrings or smelly fish and drag them
       across the path of the game that they were going to steal, and
       that would throw off the hunting dogs as they came to
       retrieve the game that had been caught.

       The defense’s entire closing argument, ladies and gentlemen,
       is nothing but a pile of red herrings, dead fish and it stinks,
       and we will go through it one by one.

The prosecutor then proceeded to identify arguments raised by defense
counsel and referred to many of them as “red herrings.” For example, the
prosecutor referred to defense counsel’s arguments regarding (1)
inconsistencies in A.G.’s testimony; (2) Detective Dominguez’s failure to
record his interview with Alonzo; and (3) the State’s failure to procure other
forensic evidence tying Alonzo to A.G.’s Tahoe. Alonzo asserts that the
“intentional invocation of the worst possible connotation of the term ‘red
herring’ had no purpose but to encourage the jury to believe defense
counsel was deceitful.”

¶25           We do not find that the prosecutor’s exposition on the
historical meaning of “red herring”—nor his continued use of that term in


                                     10
                            STATE v. ALONZO
                            Decision of the Court

describing defense counsel’s arguments—was improperly disparaging. The
red herring comments were not personal attacks on defense counsel; rather,
they were rebuttal arguments commenting on the weaknesses of counsel’s
closing arguments. See Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974)
(observing that “a court should not lightly infer that a prosecutor intends
an ambiguous remark to have its most damaging meaning or that a jury,
sitting through lengthy exhortation, will draw that meaning from the
plethora of less damaging interpretations”); 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). Indeed, our supreme court has held
that a prosecutor arguing certain questions by defense counsel were “‘a
defense ploy,’ ‘improper,’ and ‘outrageous’” is “well within the latitude
afforded both parties in closing argument.” State v. West, 176 Ariz. 432, 446,
862 P.2d 192, 206 (1993) overruled on other grounds by State v. Rodriguez, 192
Ariz. 58, 64 n.7, 961 P.2d 1006, 1012 n.7 (1998); see also State v. Amaya-Ruiz,
166 Ariz. 152, 171–72, 800 P.2d 1260, 1279–80 (1990) (finding that
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”). Accordingly, the
prosecutor’s use of the term “red herring” did not constitute misconduct,
let alone misconduct that denied Alonzo a fair trial.

¶26           Finally, Alonzo contends that the prosecutor misstated the
evidence in closing argument by stating twice, over Alonzo’s unsuccessful
objection, that defense counsel never asked A.G. at trial whether A.G. had
met Alonzo before the night of the robbery. Although we agree that defense
counsel posed the question to A.G., we construe the prosecutor’s statements
as merely a mistake or insignificant impropriety. The single question posed
to A.G. appeared in the context of cross-examination that spans
approximately 29 pages of transcript and occurred six days before closing
argument. The prosecutor’s statements did not rise to the level of
misconduct. Further, the court properly instructed the jurors that they were
to determine the facts of the case only from the evidence presented in court,
and the lawyers’ closing arguments were not evidence. We must presume
the jury followed this instruction. State v. Herrera, 174 Ariz. 387, 395, 850
P.2d 100, 108 (1993).

¶27            For the foregoing reasons, we discern no prosecutorial
misconduct; therefore, we cannot find cumulative error. See State v.
Bocharski, 218 Ariz. 476, 492 ¶ 75, 189 P.3d 403, 419 (2008) (“Absent any
finding of misconduct, there can be no cumulative effect of misconduct
sufficient to permeate the entire atmosphere of the trial with unfairness.”);


                                      11
                             STATE v. ALONZO
                             Decision of the Court

State v. Hughes, 193 Ariz. 72, 78–79 ¶ 25, 969 P.2d 1184, 1190–91 (1998)
(stating general rule of not recognizing cumulative error with the exception
of claims involving prosecutorial misconduct).

III.   Motions for Mistrial and New Trial

¶28             Because we have determined that the prosecutor did not
improperly refer to Alonzo’s post-Miranda silence or otherwise engage in
misconduct that denied Alonzo a fair trial, the trial court did not abuse its
discretion in denying Alonzo’s motions for a mistrial and a new trial. See
State v. Jones, 197 Ariz. 290, 304 ¶ 32, 4 P.3d 345, 359 (2000) (stating that trial
court’s denial of motion for mistrial is reviewed for an abuse of discretion);
State v. Rankovich, 159 Ariz. 116, 121, 765 P.2d 518, 523 (1988) (stating that
denial of motion for new trial based on prosecutorial misconduct is
reviewed for abuse of discretion).

                                CONCLUSION

¶29           For the foregoing reasons, Alonzo’s convictions and sentences
are affirmed.




                                     :gsh




                                        12
