                                                                  FILED BY CLERK
                                                                     AUG 30 2013
                            IN THE COURT OF APPEALS                   COURT OF APPEALS
                                STATE OF ARIZONA                        DIVISION TWO

                                  DIVISION TWO


THE STATE OF ARIZONA,                       )      2 CA-CR 2012-0228
                                            )      DEPARTMENT A
                                 Appellee, )
                                            )      OPINION
                      v.                    )
                                            )
ANGEL ANTONIO PEREZ,                        )
                                            )
                                 Appellant. )
                                            )

            APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                              Cause No. CR20100321002

                       Honorable Howard Fell, Judge Pro Tempore

                      AFFIRMED IN PART; VACATED IN PART


Thomas C. Horne, Arizona Attorney General
 By Joseph T. Maziarz and Alan L. Amann                                      Tucson
                                                              Attorneys for Appellee

Barton & Storts, P.C.
 By Brick P. Storts, III                                                     Tucson
                                                             Attorneys for Appellant


H O W A R D, Chief Judge.
¶1            After a jury trial, appellant Angel Perez was convicted of felony murder

and two counts of attempted armed robbery. On appeal, he argues the trial court erred by

giving an incorrect felony murder instruction, in its rulings on several evidentiary matters

at trial, and in failing to suppress Perez’s statements. He further argues the prosecutor

committed misconduct warranting a new trial. For the following reasons, we affirm

Perez’s convictions and sentences but vacate a criminal restitution order imposed as part

of his sentence.

                          Factual and Procedural Background

¶2            We view the facts in the light most favorable to upholding the conviction.

See State v. Mangum, 214 Ariz. 165, ¶ 3, 150 P.3d 252, 253 (App. 2007). In June 2009,

L.F. and Jr. were sitting on the patio of their home drinking beer. With a black t-shirt

covering his face, Perez approached the home wielding a gun. He demanded marijuana,

money, and the keys to L.F. and Jr.’s truck. Jr. walked to the nearby truck and gave

Perez a bag of marijuana that was inside, then returned to the patio of the house. L.F.

tried to escort Perez away from the property and Perez shot him. Jr. ran inside and told

his mother to call 9-1-1, then ran outside and dragged L.F. inside the house. L.F. was

airlifted to a hospital for treatment where he remained for six weeks. He eventually died

as a result of his gunshot wounds.

¶3            Perez was charged and convicted as described above. He was sentenced to

concurrent terms for the murder and one count of armed robbery, the longest of which

was a life sentence without possibility of release for 25 years, and to a consecutive,




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presumptive term of 7.5 years for the other count of armed robbery. We have jurisdiction

over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(1).

                              Felony Murder Instruction

¶4            Perez first argues the trial court erred by giving an incorrect felony murder

instruction that requires reversal and remand for a new trial. The state concedes the

court’s instruction constituted error but argues the error was harmless. We review a

claim based on an incorrect jury instruction for harmless error.1 State v. Valverde, 220

Ariz. 582, ¶ 11, 208 P.3d 233, 236 (2009). An error is harmless if the state can establish

beyond a reasonable doubt, “‘in light of all of the evidence,’” that the error did not

“contribute to or affect the verdict.” Id., quoting State v. Bible, 175 Ariz. 549, 588, 858

P.2d 1152, 1191 (1993).

¶5            Felony murder consists of a person committing a predicate felony,

including robbery, and “in the course of and in furtherance of the offense or immediate

flight from the offense, the person or another person causes the death of any person.”

A.R.S. § 13-1105(A)(2). “[W]here the killing ‘emanates’ from the crime itself, and is a

natural and proximate result thereof, it is committed in furtherance of the felony within

the meaning of the statute.” State v. Lopez, 173 Ariz. 552, 555, 845 P.2d 478, 481 (App.

1992), quoting State v. Moore, 580 S.W.2d 747, 751 (Mo. 1979).

       1
        Although the state does not argue Perez forfeited this argument by not raising it
below, we question whether he adequately preserved this issue for appeal because he did
not inform the trial court some of the language in the proposed instruction had been
disapproved by our supreme court. State v. Lopez, 217 Ariz. 433, ¶ 4, 175 P.3d 682, 683
(App. 2008) (objection on one ground does not preserve objection on another). But
regardless of the standard of review, Perez was not prejudiced.


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¶6              The trial court gave the jury a standard felony murder instruction, but also

added the following language:

                [T]here is no requirement that the killing occurred while
                committing or engaged in the felony, or that the killing be
                part of the felony. The homicide need not have been
                committed to perpetrate the felony.

                It is enough if the felony and the killing were part of the same
                series of events.

Our supreme court has explicitly disapproved the last sentence of this instruction. State

v. Martinez, 218 Ariz. 421, ¶ 23, 189 P.3d 348, 354-55 (2008). The court explained that

the language of that sentence has “long [been] absent from Arizona’s felony murder

statute.” Id.

¶7              Despite this erroneous instruction, the state has shown beyond a reasonable

doubt that the instruction could not have affected the verdict. The evidence adduced at

trial shows that the murder occurred “in the course of and in furtherance of the offense”

of armed robbery. § 13-1105(A)(2). During Perez’s armed attempt to get marijuana,

money, and truck keys from the victims, L.F. resisted. Perez shot him during that

resistance. Perez never claimed this conduct did not occur “in the course of and in

furtherance of the offense or immediate flight from the offense,” § 13-1105(A)(2), but

rather denied he was the perpetrator. Thus, the erroneous language was never in issue.

Moreover, this conduct fulfills the statutory requirements, and additional language in the

instruction that might have allowed the jury to convict under more attenuated

circumstances could not have affected the verdict in this case. Accordingly, although the




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trial court erred, the state has met its burden of proving beyond a reasonable doubt that

the error was harmless. Valverde, 220 Ariz. 582, ¶ 11, 208 P.3d at 236.

                                Prosecutorial Misconduct

¶8            Perez next argues the prosecutor committed misconduct by failing to redact

a recording of Perez’s statement, having a conflict of interest with a witness, improperly

vouching for the credibility of a witness, and failing to “follow the rules and file

motions.” The state responds that no misconduct occurred.

¶9            As an initial matter, Perez has forfeited two of these arguments. First,

Perez did not object to the prosecutor having a conflict of interest below and has

therefore forfeited that argument absent fundamental, prejudicial error.            State v.

Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005) (failure to object to

alleged error in trial court results in forfeiture of review for all but fundamental error).

But because he does not argue on appeal that the alleged error is fundamental, and

because we find no error that can be so characterized, the argument is waived. See State

v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008) (failure to argue

fundamental error on appeal waives argument); State v. Fernandez, 216 Ariz. 545, ¶ 32,

169 P.3d 641, 650 (App. 2007) (court will not ignore fundamental error if it finds it).

¶10           Second, his argument that the prosecutor did not “follow the rules and file

motions” is completely unsupported by authority or citations to the record. He has

therefore waived this issue by failing to adequately argue it on appeal. See Ariz. R. Crim.

P. 31.13(c)(1)(vi) (opening brief “shall contain the contentions of the appellant with

respect to the issues presented, and the reasons therefor, with citations to the authorities,


                                             5
statutes and parts of the record relied on.”); State v. Bolton, 182 Ariz. 290, 298, 896 P.2d

830, 838 (1995) (inadequate argument on appeal waives issue).

¶11           To show that reversible misconduct occurred, the defendant must establish

“that the prosecutor’s misconduct ‘so infected the trial with unfairness as to make the

resulting conviction a denial of due process.’” State v. Hughes, 193 Ariz. 72, ¶ 26, 969

P.2d 1184, 1191 (1998), quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974).

We also consider whether the cumulative effect of the misconduct “permeate[d] the entire

atmosphere of the trial.” Id.

¶12           Perez, however, does not argue that the alleged misconduct in his

remaining claims, whether considered individually or cumulatively, actually denied him a

fair trial. He therefore has failed to meet his burden of establishing that the prosecutor’s

conduct here infected the trial with unfairness to such a degree that it denied him due

process of law. See id.

¶13           Moreover, the conduct Perez objects to did not amount to misconduct. As

to the recording, the prosecutor did initially redact the recording. However, when it was

played in court, Perez objected that it had been over-redacted. After consulting with

counsel, the trial court characterized the redactions that were made as at most a

“misunderstanding” between the court and counsel, found no prejudice to Perez, and

ordered the recording played in full with the exception of one portion at the end. This

record shows the prosecutor made a good faith effort to comply with the original order to

redact the recording, followed by the prosecutor’s compliance with an explicit order of




                                             6
the court. The prosecutor did not commit misconduct by complying with the court’s

orders.

¶14           Nor did the prosecutor impermissibly vouch for his witness.              The

prosecutor asked the witness, who was scheduled to be sentenced in a later case, if the

witness felt lying on the stand could have an adverse affect on his sentence. In so asking,

the prosecutor did not “plac[e] the prestige of the government behind [the] witness,” but

rather elicited what motives a witness of perhaps questionable credibility might have for

telling the truth. See State v. Palmer, 219 Ariz. 451, ¶ 6, 199 P.3d 706, 708 (App. 2008).

No misconduct occurred. Accordingly, we reject Perez’s argument. See Hughes, 193

Ariz. 72, ¶ 26, 969 P.2d at 1191.

                       Daubert Hearing on Polygraph Test Results

¶15           Perez next argues the trial court erred by failing to conduct a hearing on the

admissibility of Perez’s polygraph examination results pursuant to Daubert v. Merrell

Dow Pharms., Inc., 509 U.S. 579 (1993). We review decisions on the admissibility of

evidence for an abuse of discretion. State v. McGill, 213 Ariz. 147, ¶ 30, 140 P.3d 930,

937 (2006).     Before trial, Perez sought to introduce the results of his polygraph

examination because he considered them favorable. The state did not stipulate to their

admission. The trial court ruled that polygraph test results were “generally inadmissible

and specifically in this case . . . inadmissible.”

¶16           Effective January 1, 2012, Arizona essentially adopted the federal Daubert

standard for determining the admissibility of expert testimony. See Ariz. R. Evid. 702

cmt. The purpose of the rule is to require the court to serve as a “gatekeeper[]” that


                                                7
admits testimony it initially finds reliable, freeing the jury to weigh what the court has

already determined is “reliable, expert testimony.” Id. Qualified experts may offer

opinion testimony under Rule 702 if

              (a) the expert’s scientific, technical, or other specialized
              knowledge will help the trier of fact to understand the
              evidence or to determine a fact in issue;
              (b) the testimony is based on sufficient facts or data;
              (c) the testimony is the product of reliable principles and
              methods; and
              (d) the expert has reliably applied the principles and
              methods to the facts of the case.

Before the rule changed, our supreme court held that “[p]olygraph evidence is deemed

inadmissible because it is unreliable and the trier of fact has a tendency to treat such

evidence as conclusive on the issue of guilt.” State v. Ikirt, 160 Ariz. 113, 115, 770 P.2d

1159, 1161 (1987); see also State v. Valdez, 91 Ariz. 274, 278-79, 371 P.2d 894, 897-98

(1962). Accordingly, Arizona courts have concluded that, absent a stipulation by the

parties, such test results are categorically inadmissible. State v. Hoskins, 199 Ariz. 127,

¶ 69, 14 P.3d 997, 1014 (2000).

¶17           Although many federal courts have abandoned their per se rules of

inadmissibility of polygraph results after Daubert, others have retained theirs. See, e.g.,

United States v. Prince-Oyibo, 320 F.3d 494, 501 (4th Cir. 2003) (retaining the rule);

United States v. Lea, 249 F.3d 632, 639 n.4 (7th Cir. 2001) (abandoning rule); United

States v. Benavidez-Benavidez, 217 F.3d 720, 724 (9th Cir. 2000) (abandoning rule, but

expressing no “‘new enthusiasm for admission of unstipulated polygraph evidence’” and

noting polygraph evidence’s “‘grave potential for interfering with the deliberative



                                            8
process.’”), quoting United States v. Cordoba, 104 F.3d 225, 228 (9th Cir. 1997). But the

United States Supreme Court has held that a per se rule excluding polygraph tests is

constitutional, and in so doing specifically referred to the fact that “[m]ost States

maintain per se rules excluding polygraph evidence.” United States v. Scheffer, 523 U.S.

303, 309, 311-12 (1998). Although it noted a circuit split on this issue, it did not mandate

either per se exclusion or Daubert hearings.

¶18           Perez cites Cordoba for the proposition that Daubert removed the per se

rule excluding admissibility of polygraph tests. 104 F.3d at 227. But in light of the

Supreme Court’s reasoning in Scheffer, we cannot say that Daubert made such a change.

Perez has presented no evidence or argument of a change in polygraph technology or

circumstance between Hoskins and this case that would justify a change in Arizona’s

rule. Accordingly, our supreme court’s conclusions in Hoskins about polygraphs still

apply; they are unreliable and admission of their results risks usurping the role of the

jury. These deficiencies make evidence of their results inadmissible under Daubert.

Therefore, we will continue to apply the longstanding Arizona rule that the results of

polygraph tests are per se inadmissible. Hoskins, 199 Ariz. 127, ¶ 69, 14 P.3d at 1014;

Ikirt, 160 Ariz. at 115, 770 P.2d at 1161.

¶19           Perez complains that he was not allowed to present evidence concerning the

polygraph’s reliability. But the trial court has broad discretion to determine the reliability

of evidence and need not conduct a hearing to make a Daubert decision. See Ariz. State

Hosp./Ariz. Cmty. Prot. & Treatment Ctr. v. Klein, 231 Ariz. 467, ¶ 31, 296 P.3d 1003,

1010 (App. 2013). And because Perez did not claim that polygraphs have improved or


                                               9
changed since Hoskins, the trial court properly could refuse to hold a hearing. Id.

Furthermore, Perez did not make an offer of proof showing any change in the polygraph

since Hoskins and has consequently waived that argument. See Ariz. R. Evid. 103.

                                   Hearsay Evidence

¶20          Perez next argues the court erred in allowing the prosecutor to cross-

examine a witness based on transcripts of jail phone calls recorded between the witness

and Perez. But he did not object below to this examination and therefore has, again,

forfeited this argument absent fundamental, prejudicial error. Henderson, 210 Ariz. 561,

¶¶ 19-20, 115 P.3d at 607 (failure to object to alleged error in trial court results in

forfeiture of review for all but fundamental error). Because he does not argue on appeal

that the alleged error is fundamental, and because we find no error that can be so

characterized, the argument is waived. See Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185

P.3d at 140 (failure to argue fundamental error on appeal waives argument); Fernandez,

216 Ariz. 545, ¶ 32, 169 P.3d at 650 (court will not ignore fundamental error if it finds

it).

                   Introduction of Jail Telephone Call Recordings

¶21          Perez next argues the introduction of recordings of telephone calls he made

and received while in jail violated his Fourth and Sixth Amendment rights, as well as his

right to Equal Protection under the Fourteenth Amendment. Although Perez filed a

motion to suppress these phone calls below, the court never ruled on that motion.

Instead, it ordered that the phone calls be disclosed to Perez. He made no record of this

objection at trial. He has therefore not properly preserved these issues for appeal absent


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fundamental, prejudicial error. See State v. Lujan, 136 Ariz. 326, 328, 666 P.2d 71, 73

(1983) (failing to make record as to disposition of motion in limine waives claim of error

on appeal); Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607. He does not argue the

alleged error is fundamental, we do not find it to be, and therefore the argument is

waived. See Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d at 140; Fernandez, 216

Ariz. 545, ¶ 32, 169 P.3d at 650.

                       Limits on Cross-Examination of a Witness

¶22           Perez next argues the court improperly restricted his ability to cross-

examine one of the state’s witnesses. We review restrictions on the scope of cross-

examination for an abuse of discretion. State v. Fleming, 117 Ariz. 122, 125, 571 P.2d

268, 271 (1977). We “will not disturb the court’s ruling absent a clear showing of

prejudice.” State v. Rodgers, 134 Ariz. 296, 301, 655 P.2d 1348, 1353 (App. 1982).

¶23           Pursuant to a plea agreement, R.F., one of Perez’s friends, agreed to

provide truthful testimony for the prosecution in Perez’s trial. During trial, defense

counsel learned R.F. had had a meeting with the prosecutor several weeks prior and was

released the following day. Counsel moved to cross-examine R.F. on the meeting to

explore what benefit R.F. may have received from the meeting. Outside the presence of

the jury, the prosecutor avowed to the court he had not agreed to R.F.’s pre-trial release

the next day, there had been no further promises made to R.F. during the meeting, and

that there was nothing to disclose. The court ruled that counsel could elicit the fact of the

meeting but not cross-examine R.F. as to the contents of the meeting. Both sides then

elicited testimony from R.F. about the potential great reduction in imprisonment to R.F.


                                             11
under the plea agreement. R.F. further testified during cross-examination that he had met

with the prosecutor in Perez’s case and was released from pretrial custody the following

day.

¶24           Perez claims the court erred by prohibiting him from cross-examining R.F.

about the contents of the conversation between R.F. and Perez’s prosecutor on the day

before R.F.’s release. Nothing in the record suggests the prosecutor lied to the court and

the jury was free to draw whatever inferences it chose from the sequence of events.

Moreover, further testimony on this issue would have been cumulative because both sides

had already established the strong incentives R.F. had for testifying against Perez. See

Ariz. R. Evid. 403. Therefore Perez has failed to establish how this limitation prejudiced

him.   The court did not abuse its discretion in limiting the scope of R.F.’s cross-

examination. Rodgers, 134 Ariz. at 301, 655 P.2d at 1353.

                                  Motion to Suppress

¶25           Perez finally argues the court erred in denying his motion to suppress

statements he made during an interview because his statements were involuntary. We

review the denial of a motion to suppress for an abuse of discretion. State v. Zamora, 220

Ariz. 63, ¶ 7, 202 P.3d 528, 532 (App. 2009). In our review, “we consider only the

evidence presented at the suppression hearing and view it in the light most favorable to

upholding the trial court’s factual findings.” State v. Fornof, 218 Ariz. 74, ¶ 8, 179 P.3d

954, 956 (App. 2008).

¶26           A confession is involuntary if, under the totality of the circumstances, the

will of the defendant was overborne. State v. Hall, 120 Ariz. 454, 456, 586 P.2d 1266,


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1268 (1978). Confessions are presumed to be involuntary and the state must show

voluntariness by a preponderance of the evidence. Id. “A prima facie case for admission

of a confession is made when the officer testifies that the confession was obtained

without threat, coercion or promises of immunity or a lesser penalty.” State v. Jerousek,

121 Ariz. 420, 424, 590 P.2d 1366, 1370 (1979).

¶27           At the suppression hearing, an investigator working for Perez’s attorney

testified that he arranged a “free talk” with the police. He defined a free talk as a meeting

where “no promises [are] made” but one that allows the defendant “to give some

information to the police” that the prosecutor and police can later evaluate “to see if

they’re going to give [the defendant] some kind of a plea.” The investigator testified that

there was no written agreement and that Perez was read his rights. He also stated he

understood that “if any free talk was in place that any admission to a homicide is

specifically exempt from immunity” and that if the defendant tells the police “about a

violent crime that [he] participated in or a homicide, that’s not free.” The detective who

conducted the interview testified that the defense had initiated the conversation, that he

made no promises to Perez, that he read Perez his Miranda rights, and that he did not

consider the interview a “free talk” with the “normal free talk rules.” Perez, who did not

testify at the hearing, offered no other evidence of police promises or coercion. Under

these circumstances, we cannot say the trial court erred in denying Perez’s motion to

suppress his statements for lack of voluntariness. See Hall, 120 Ariz. at 456, 586 P.2d at

1268.




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                              Criminal Restitution Order

¶28           Although neither party has raised this issue, we have discovered the

sentencing minute entry provides that the “fines, fees, assessments and/or restitution” the

court had imposed were “reduced to a criminal restitution order [CRO].” But as this

court has determined, based on A.R.S. § 13-805(C), “the imposition of a CRO before the

defendant’s probation or sentence has expired ‘constitutes an illegal sentence, which is

necessarily fundamental, reversible error.’” State v. Lopez, 231 Ariz. 561, ¶ 2, 298 P.3d

909, 910 (App. 2013), quoting State v. Lewandowski, 220 Ariz. 531, ¶ 15, 207 P.3d 784,

789 (App. 2009). Therefore, because this portion of the sentencing minute entry is not

authorized by statute, the CRO must be vacated.

                                       Conclusion

¶29           For the foregoing reasons, we vacate the CRO but otherwise affirm Perez’s

convictions and sentences.




                                             /s/ Joseph W. Howard
                                             JOSEPH W. HOWARD, Chief Judge

CONCURRING:


/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge


/s/ Michael Miller
MICHAEL MILLER, Judge



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