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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                JERICHO RAGSDALE SPRIGGS, Appellant.

                             No. 1 CA-CR 16-0575
                               FILED 8-17-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR2015-138845-001
               The Honorable David O. Cunanan, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eliza C. Ybarra
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Tennie B. Martin
Counsel for Appellant
                            STATE v. SPRIGGS
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Patricia A. Orozco 1 delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Maria Elena Cruz joined.


O R O Z C O, Judge:

¶1           Appellant Jericho Ragsdale Spriggs appeals his convictions
and sentences for armed robbery and aggravated robbery. Spriggs argues
the State impermissibly impeached him with his post-arrest silence. For the
following reasons, we affirm Spriggs’s convictions and sentences.

               FACTUAL AND PROCEDURAL HISTORY

¶2            In August 2015, the victim, GJ, was returning home to his
apartment, when he was followed into the complex’s secured lot by a
Nissan Maxima. As he walked toward his apartment, someone touched GJ
on the shoulder. GJ turned and saw Spriggs and an accomplice pointing
guns at him. Spriggs put a gun to GJ’s head and shoved him against a wall.
Spriggs was wearing black pants, a black shirt, a baseball hat with a blue
bandana underneath, and blue gloves. Spriggs’s gun was black and chrome,
and his accomplice’s gun was black.

¶3            The men took GJ’s wallet, keys, and phone and then ran back
into the parking lot. The men were unable to leave the parking lot without
a remote to open the gate. GJ asked a neighbor to call the police and
retrieved his spare keys to chase the men in his vehicle. GJ used his vehicle
to block the men into a corner of the parking lot, forcing them to abandon
the Maxima and jump the fence. Spriggs’s fingerprints were later
discovered inside the Maxima.

¶4            Phoenix police detective RM noticed Spriggs walking along a
road in an area near the apartment complex. Spriggs “was sweating
profusely,” was wearing black pants and a backpack, and had gloves
hanging from his back pocket. Detective RM discovered two pairs of keys
in Spriggs’s possession, one set of which belonged to GJ. Spriggs also had a


1      The Honorable Patricia A. Orozco, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.


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                             STATE v. SPRIGGS
                            Decision of the Court

blue bandana in his front pocket and a chrome and black gun in his
backpack. About twenty minutes after the robbery, GJ identified Spriggs as
one of the men who robbed him.

¶5             Spriggs testified that, on the night of the robbery, he finished
work at a nearby store around midnight and called his wife for a ride home.
Spriggs received a call from his wife’s cousin’s boyfriend, who offered to
give him a ride in the Maxima, a vehicle in which Spriggs had previously
ridden several times. Spriggs asked the driver to drop him off at a nearby
home so he could purchase marijuana cigarettes and left his backpack in
the Maxima. 2 Spriggs testified that, as he was walking toward the meeting
point, he saw the driver running toward him. The driver handed Spriggs’s
backpack to him and told Spriggs to run, which he did. Spriggs testified the
first time he saw the black and chrome gun was when it was pulled out of
his backpack by the police.

¶6            During the trial, the State impeached Spriggs with the
inconsistencies between his testimony and his statements to police. The
State also referenced Spriggs’s inconsistent statements during closing
argument. Spriggs was convicted of armed robbery and aggravated
robbery, and he pled guilty to misconduct involving weapons. He was
sentenced to concurrent terms of 15.75, 11.25, and 10 years’ imprisonment,
respectively.

¶7           Spriggs timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) sections 12-120.21.A.1., 13-4031, and 13-
4033.A.1. 3

                               DISCUSSION

¶8            Because Spriggs did not object at trial to the questioning
which forms the basis of his appeal, we review for fundamental error. See
State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005) (citation omitted). Error is
fundamental when it affects the foundation of the case, deprives the
defendant of a right essential to his defense, or is an error of such magnitude
that the defendant could not possibly have had a fair trial. Id. (citation and



2      In response to a juror question, Spriggs testified he ate the marijuana
cigarettes in the back of the police cruiser.

3       We cite to the most recent version of statutes unless changes material
to this decision have occurred.


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                             STATE v. SPRIGGS
                            Decision of the Court

quotation omitted). To obtain reversal for fundamental error, the defendant
bears the burden to show the error was prejudicial. Id. at ¶ 20.

¶9             A prosecutor may not comment on a defendant’s post-arrest,
post-Miranda silence as evidence of guilt, even for impeachment purposes.
Doyle v. Ohio, 426 U.S. 610, 618-19 (1976); State v. Ramirez, 178 Ariz. 116, 125
(1994) (citations omitted). A prosecutor may, however, comment on a
defendant’s post-Miranda statements “because a defendant who voluntarily
speaks after receiving Miranda warnings has not been induced to remain
silent.” Ramirez, 178 Ariz. at 125 (citation and quotation omitted). “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.” State v. Tuzon, 118
Ariz. 205, 207 (1978) (citation omitted).

¶10            Spriggs asserts the State impermissibly impeached him at
trial, despite testifying that he invoked his right to counsel and to remain
silent. However, after having invoked, Spriggs did not remain silent.
Rather, Spriggs answered several of the detective’s questions by claiming
he knew nothing about the robbery.4 The interview ended when Spriggs
requested counsel. The State impeached Spriggs’s testimony at trial with
his previous statements to police, including his assertion that he had no
knowledge of the robbery. It is of no consequence that Spriggs explained
his inconsistent statements by noting he “learned never to give a statement
to the police because they like to twist your words and anything. . . . I rather
talk to my legal counsel to advise what to say and what not to say.” The
court did not err in allowing the State to impeach Spriggs with his prior
inconsistent statements because those statements were not involuntarily
made and they were in contradiction to the new statements made at trial.
See id.




4    Spriggs frequently admitted he told the detective he had no
knowledge of the events in question. For example:

       Q. Okay. [The] Detective . . . asked you to tell him more about
       the details and incident and how this key got in your pocket.
       And your response was, I don’t know what you’re talking
       about.
       A. Exactly.


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                           STATE v. SPRIGGS
                          Decision of the Court

                             CONCLUSION

¶11          For the reasons stated above, we affirm Spriggs’s convictions
and sentences.




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




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