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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                      JERRY LOUIS MATTA, Appellant.

                             No. 1 CA-CR 15-0184
                               FILED 8-16-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-162103-001
             The Honorable Robert E. Miles, Judge (Retired)

                        AFFIRMED AS MODIFIED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Michael J. Dew Attorney at Law, Phoenix
By Michael J. Dew
Counsel for Appellant
                              STATE v. MATTA
                             Decision of the Court



                       MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Patricia K. Norris joined.


T H U M M A, Judge:

¶1            This is an appeal under Anders v. California, 386 U.S. 738 (1967)
and State v. Leon, 104 Ariz. 297 (1969). Counsel for defendant Jerry Louis
Matta has advised the court that, after searching the entire record, counsel
has found no arguable question of law and asks this court to conduct an
Anders review of the record. Matta was given the opportunity to file a
supplemental brief pro se, and has done so.1 This court has reviewed the
record and has found no reversible error. Accordingly, Matta’s convictions
and resulting sentences are affirmed.

                 FACTS2 AND PROCEDURAL HISTORY

¶2            After a day of shopping, A.O. parked in front of her mother’s
house in Phoenix so that her friend, B.D., could retrieve her car. As B.D.
prepared to drive away, Matta knocked loudly on A.O.’s window and then
quickly pulled the door open. A.O. saw Matta standing outside her driver’s
door and a woman standing outside her passenger door. Matta told A.O. to
give him her cell phone and to get out of the car and leave it running. Matta
allowed A.O. and her two children to get out of the car and then Matta and
the woman got in A.O.’s car and drove away. A.O. immediately called the
police.

¶3         Matta and his female companion drove A.O.’s car to a
shopping mall where several store employees were leaving for the night.


1Although Matta missed the deadline this court set to file his supplemental
brief, he filed a request to have several issues addressed on the record,
which this court granted and treats the request as a supplemental brief.

2This court views the facts “in the light most favorable to sustaining the
verdict, and resolve[s] all reasonable inferences against the defendant.”
State v. Rienhardt, 190 Ariz. 579, 588-89 (1997). Initials are used to protect the
privacy of victims. State v. Maldonado, 206 Ariz. 339, 341 n.1 ¶ 2 (App. 2003).



                                        2
                             STATE v. MATTA
                            Decision of the Court

C.G. had just left the store and was talking to J.F., as they both waited for
E.M. Matta’s companion drove up to C.G., E.M. and J.F with Matta in the
passenger seat. Matta asked if they knew if there was a nightclub nearby.
After they responded that they did not, Matta pointed a gun at them and
demanded their wallets, cell phones, watches and everything else they had,
threatening to shoot them. Matta got out of the car, collected C.G.’s, E.M.’s
and J.F.’s things, then got back in the car and he and his companion sped
off. E.F. immediately called the police.

¶4            Not long after, a Phoenix Police Department patrol unit
spotted the stolen car, began to follow it and radioed in its location. A Police
helicopter responded and began following the car. The helicopter and
patrol units followed the car to a motel where Matta and his female
companion stopped and abandoned the car. Both ran, but in different
directions. An officer directed Matta to stop and put down his gun; in
response, Matta pointed his gun at the officer. Matta then ran past a trash
can, appearing to trip as he did. Matta got up and continued to run, but he
and his female companion were quickly arrested.

¶5            A few hours later, police took C.G. and E.M. to the motel
where they were holding Matta. C.G. and E.M. identified Matta as the
person who robbed him. A.O. and B.D. later identified Matta in a
photographic lineup. Several of the victims’ personal items, including
C.G.’s wallet, were taken from Matta when he was arrested.

¶6             During a search of the motel parking lot, police found a
handgun in the trash can Matta ran past. DNA found on the gun matched
a sample taken from Matta. Matta’s fingerprints were found on the gun.
Police also found text messages on Matta’s cell phone attempting to sell the
stolen car to a third party.

¶7            The State charged Matta with aggravated robbery, a Class 3
felony; theft of means of transportation, a Class 3 felony; three counts of
armed robbery, Class 2 dangerous felonies; misconduct involving weapons,
a Class 4 dangerous felony and aggravated assault, a Class 2 dangerous
felony. At Matta’s request, and after an appropriate colloquy, Matta
represented himself throughout the proceedings. Before trial, Matta moved
for sanctions against the State, arguing the car and personal items should
not have been returned to the victims without first testing them for DNA
and fingerprints and allowing him to do the same. Matta also claimed the
State had not complied with disclosure obligations. After a hearing, the
court denied the motion, finding the State had complied with disclosure
obligations and that Matta had not shown the police failed to preserve any


                                       3
                             STATE v. MATTA
                            Decision of the Court

exculpatory evidence, but that a jury instruction pursuant to State v. Willits,
96 Ariz. 184 (1964) might be appropriate.

¶8            During the 13-day trial, the State called various witnesses
who testified to the facts described above. The State also introduced
evidence that Matta had previously been convicted of a dangerous felony.
At the close of the State’s case, Matta unsuccessfully moved for a judgment
of acquittal, arguing the State had not provided substantial evidence to
prove the charges.

¶9             The jury found Matta guilty as charged. Matta then withdrew
his waiver of his right to counsel and, through counsel, moved for a new
trial. Matta asserted prosecutorial misconduct by improperly commenting
on Matta’s failure to volunteer facts to the police and the length of his prison
sentence if convicted. The court denied the motion for new trial and
sentenced Matta to concurrent, aggravated terms of seven and one half
years in prison for count 1 and seven years for count 2, with 8193 days of
presentence incarceration credit. The court also sentenced Matta to
aggravated terms of 17 years in prison for each of counts 4, 5 and 6; four
and one half years for count 7 and 18 flat years for count 9. Counts 4, 5 and
6 were imposed concurrently with each other but consecutive to counts 1,
2, 7 and 9 and counts 7 and 9 were imposed concurrently with each other
but consecutive to counts 1, 2, 4, 5 and 6.

¶10            Matta timely appealed from his convictions and resulting
sentences. This court has jurisdiction pursuant to Arizona Revised Statutes
(A.R.S.) sections 12-120.21(A)(1), 13-4031, and -4033 (2016).4

                               DISCUSSION

¶11           This court has reviewed and considered counsel’s brief and
Matta’s pro se supplemental brief and has searched the entire record for
reversible error. See State v. Clark, 196 Ariz. 530, 537 ¶ 30 (App. 1999).
Searching the record and briefs reveals no reversible error. The record
shows that, when not represented by counsel, Matta had knowingly,


3Matta was arrested on December 6, 2012 and sentenced on March 6, 2015.
Accordingly, the correct amount of presentence incarceration credit is 820
days.

4Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.



                                       4
                             STATE v. MATTA
                            Decision of the Court

voluntarily and intelligently waived his right to counsel. The evidence
admitted at trial constitutes substantial evidence supporting Matta’s
convictions. From the record, all proceedings were conducted in
compliance with the Arizona Rules of Criminal Procedure. The sentences
imposed were within statutory limits and permissible ranges. Matta raises
several arguments in his pro se supplemental brief, which this court
addresses in turn.

I.     Matta Has Not Shown The State Failed To Preserve Or Disclose
       Evidence. 5

       A.     Willits Instruction.

¶12           Matta argues the superior court abused its discretion by
denying his request to give a jury instruction pursuant to State v. Willits, 96
Ariz. 184 (1964), because the stolen car and the victims’ personal items were
not tested for DNA and fingerprints and no other efforts were taken to
preserve such evidence. “To be entitled to a Willits instruction, a defendant
must prove that (1) the state failed to preserve material and reasonably
accessible evidence that could have had a tendency to exonerate the
accused, and (2) there was resulting prejudice.” State v. Torres, 162 Ariz. 70,
76 (App. 1989) (citation omitted). A court does not abuse its discretion in
refusing to give a Willits instruction based on a failure by the police to
preserve possible fingerprint evidence when it is not shown such evidence
would not establish innocence. State v. Strong, 185 Ariz. 248, 251 (App.
1995).

¶13           Matta has not shown fingerprinting and DNA testing of the
items would have been exculpatory. Multiple witnesses testified to seeing
Matta in possession of the stolen car and personal items. Moreover, the
State’s expert testified that finding Matta’s fingerprints or DNA on an item
is evidence that Matta touched the item, but that because people often touch
things without leaving detectable fingerprints or DNA, a failure to recover
Matta’s DNA or fingerprints on the items is not evidence that he did not
possess them. Because Matta has not shown that the presence or absence of



5 Matta’s supplemental brief raised eight issues. Issue six states, “Abuse of
discretion in regards to trial court refusing to sanction Prosecution for
failure to disclose and failure to preserve.” Because issue six presents
substantially the same legal questions as issues one and two, this court
addresses issues one (“denial of a Willits instruction”), two (“failing to
suppress prejudicial evidence”) and issue six together.


                                      5
                             STATE v. MATTA
                            Decision of the Court

his fingerprints or DNA on the stolen items would establish his innocence,
the superior court did not err in refusing to give a Willits instruction.

       B.     Prejudicial Evidence.

¶14           Matta argues the superior court abused its discretion by
admitting prejudicial evidence at trial. Matta made no objections at trial that
any admitted evidence was unfairly prejudicial under Arizona Rule of
Evidence 403. Matta did, however, object to several items of evidence
alleging they were not timely disclosed. The State is required to disclose
witnesses, documents and other evidence to the defendant no later than 30
days after arraignment. Ariz. R. Crim. P. 15.1(a)-(c). The superior court may
exclude evidence as a sanction for failing to comply with this obligation.
Ariz. R. Crim. P. 15.7(a)(1). “The choices of whether to impose a sanction
and which sanction to impose are left to the discretion of the trial court and
will not be disturbed on appeal absent a showing of abuse.” State v. Tucker,
157 Ariz. 433, 439 (1988). “Generally, there is no abuse of discretion if the
defendant suffers no prejudice.” Id.

¶15            Matta claimded to not have had the opportunity to take the
deposition of some witnesses, that the State never disclosed a number of
photographs and notes, and that the State did not disclose that it may read
the contents of a phone. The State disputed these claims. The superior court
found that scheduling depositions was Matta’s responsibility and that even
if the State had impeded his ability to depose witnesses, he had waived the
objection by not raising it before trial. The court held a hearing before trial
in which it found the State had complied with all disclosure requirements.
The court also found that, because Matta did not timely object to the cell
phone being admitted in evidence, he had waived any objection regarding
the contents of the phone.

¶16           Of Matta’s three disclosure objections, two were deemed
waived because they were untimely. The third was rejected because the
court found that the State had not violated any disclosure rules. This court
has searched the record and has failed to find any disclosure violations.
Accordingly, Matta has not shown the superior court abused its discretion
by refusing to sanction the State for claimed disclosure violations.

II.    Matta Has Not Shown Perjured Testimony Was Admitted At Trial.

¶17           Matta asserts “fundamental error by allowing perjured
testimony.” “A person commits perjury by making . . . [a] false sworn
statement in regard to a material issue, believing it to be false.” A.R.S. § 13-
2702(A). “Knowing use of perjured or false testimony by the prosecution is


                                       6
                             STATE v. MATTA
                            Decision of the Court

a denial of due process and is reversible error without the necessity of a
showing of prejudice to the defendant.” State v. Ferrari, 112 Ariz. 324, 334
(1975).

¶18          Several times during trial Matta accused witnesses of perjury
for making inconsistent statements. Multiple times, while cross-examining
witnesses, Matta asked if the witness knew the meaning of perjury and then
highlighted an inconsistency in testimony. While cross examining Officer
Ordanza, Matta asked:

             Q. Do you understand the legal definition of
             perjury?

             A. No.

             Q. Do you have a concept of what perjury is?

             A. A little bit, yes.

             Q. Can you explain to the best of your
             understanding of what perjury is?

             A. Making a false statement.

Matta then asked:

             Q. So at that point you said that you now
             remember that you had prior testified at these
             evidentiary hearings, correct?

             A. Correct.

             Q. On Tuesday when I asked you right before
             we ran out of time I asked you and you said I
             don’t remember, correct?

             A. Correct.

             Q. Now in that instance how come you didn’t
             tell the truth to the best of your ability?

             A. I honestly did not think I testified earlier.

¶19          As another example, while cross-examining Officer Ramirez,
Matta asked:


                                      7
                              STATE v. MATTA
                             Decision of the Court

              Q. Which story is correct? Which one is it, is it
              the one you’re saying that the gun is pointing at
              this building or is it the prior evidentiary
              hearing where you’re saying the gun is pointed
              at that building? Which one is it?

              A. What my report says and what I testified
              today.

              Q. What your report says and what you testified
              to today?

              A. Yes, sir.

              Q. So this was a mistake?

              A. It was a mistake. If I recall the evidentiary
              hearing we were going back and forth for over
              an hour. Can I say I got confused on the
              building, yes, that’s true.

After the State rested, Matta moved for a judgment of acquittal based on
alleged perjury, including that discrepancies between the accounts of the
various witnesses amounted to perjury. He also made similar arguments in
his opening statement and closing argument.

¶20              None of these situations constitute perjury, defined as a “false
sworn statement in regard to a material issue,” made by a person “believing
it to be false.” A.R.S. § 13-2702(A). The witnesses testified that despite minor
inconsistencies, they were testifying truthfully and to the best of their
abilities. Inconsistencies in testimony are not perjury but may be considered
in assessing credibility. See Ferrari, 112 Ariz. at 334. Mere inconsistences in
testimony from different witnesses do not constitute perjury. Accordingly,
Matta has not shown the superior court erred by allowing perjured
testimony.

III.   Matta Has Not Shown The Superior Court Improperly Excluded
       Impeachment Evidence.

¶21           Matta argues the superior court abused its discretion by
failing to admit impeachment evidence. “Any party . . . may attack the
witness’s credibility.” Ariz. R. Evid. 607. “[E]xtrinsic evidence is not
admissible to prove specific instances of a witness’s conduct in order to
attack or support the witness’s character for truthfulness. But the court may,


                                       8
                             STATE v. MATTA
                            Decision of the Court

on cross-examination, allow them to be inquired into if they are probative
of the character for truthfulness or untruthfulness of . . . the witness.” Ariz.
R. Evid. 608(b)(1). This court reviews rulings on such issues for an abuse of
discretion and will not reverse unless unfair prejudice resulted or the court
incorrectly applied the law. Larsen v. Decker, 196 Ariz. 239, 241 ¶ 6 (App.
2000).

¶22           The State moved to exclude a testifying officer’s internal
investigation records showing that the officer had been disciplined for
taking a prohibited substance. Matta argued that he should be allowed to
cross-examine the witness with the records because they were probative of
his untruthfulness. The superior court excluded the evidence, finding the
records were not probative of untruthfulness because taking a prohibited
substance does not show untruthfulness and the records did not include
any finding that the officer had lied during his discipline proceedings.
Because the record shows the court properly applied the law and concluded
the evidence Matta sought to introduce was not probative of
untruthfulness, Matta has not shown the court abused its discretion.

IV.    Matta Has Not Shown Prosecutorial Misconduct.

¶23            Matta argues the superior court erred by allowing the
prosecutor “to attack [Matta’s] right to self-representation.” During closing
arguments, the prosecutor told the jury, “the defendant chose to represent
himself. He chose to present his case. He has every right to do that. Don’t
feel sorry for him.” Matta made no objection to these statements, meaning
this court reviews for fundamental error. See State v. James, 231 Ariz. 490,
493 ¶ 11 (App. 2013). “Accordingly, [Matta] ‘bears the burden to establish
that “(1) error exists, (2) the error is fundamental, and (3) the error caused
him prejudice.”’” Id. (citations omitted). Matta has not shown error, let
alone fundamental error resulting in prejudice. The prosecutor’s only
comment was that the jury should not “feel sorry” for Matta, which is
compatible with the court’s instruction to the jury that it “must not be
influenced by sympathy or prejudice.” The prosecutor did not suggest any
inferences based on Matta’s election to represent himself and did not ask
the jury to make any. Matta has not shown fundamental error resulting in
prejudice on this point.

V.     The Superior Court Properly Denied Matta’s Motion For
       Judgment Of Acquittal.

¶24          Matta argues the superior court erred by denying his motion
for judgment of acquittal. “[T]he court shall enter a judgment of acquittal .



                                       9
                             STATE v. MATTA
                            Decision of the Court

. . if there is no substantial evidence to warrant a conviction.” Ariz. R. Crim.
P. 20(a). This court reviews a “denial of a Rule 20 motion for an abuse of
discretion and will reverse a conviction only if there is a complete absence
of substantial evidence to support the charges.” State v. Tillmon, 222 Ariz.
452, 456 ¶ 18 (App. 2009) (citation omitted). For the robbery, theft and
assault charges, witnesses testified to having seen Matta commit each
offense. For the misconduct involving weapons charge, DNA that matched
Matta’s was on a gun that was found in a trash can next to where witnesses
saw Matta trip. Reasonable jurors could have believed the accounts of the
numerous witnesses and accepted the DNA evidence. Because substantial
evidence existed to support each conviction, the superior court did not
abuse its discretion by denying Matta’s Rule 20 motion for judgment of
acquittal.

VI.    The Superior Court Did Not Err By Denying Matta’s Motion For
       New Trial.

¶25           Matta argues the superior court abused its discretion by
denying his motion for a new trial. “The court may grant a new trial . . . [if]
the prosecutor has been guilty of misconduct.” Ariz. R. Crim. P. 24.1(c)(2).
“Absent patent error, we defer to the trial court’s determination whether
prosecutorial misconduct is so prejudicial as to require a new trial.” State v.
Smith, 182 Ariz. 113, 116 (App. 1995). This court will affirm the superior
court’s decision “unless there is invective so palpably improper that it is
clearly injurious.” State v. Scott, 24 Ariz. App. 203, 206 (1975) (citation
omitted).

¶26           In his motion for new trial, Matta argued prosecutorial
misconduct in commenting on the possible length of Matta’s sentence if
convicted. Matta also argues an investigator’s comments on his failure to
disclose his version of events violated his right to remain silent.

       A.     Comments On Length Of Matta’s Possible Sentence.

¶27           During cross-examination of Matta, the following exchange
occurred:

              Q. You’re looking at substantial time in the
              Department of Corrections, correct?

              A. According to my calculations --




                                      10
                            STATE v. MATTA
                           Decision of the Court

             Q. Mr. Matta, it’s just a yes or no. Are you
             looking at a substantial time in the Department
             of Corrections with regard to these crimes?

             A. I would say so, yes, any time is substantial
             for somebody who is innocent. I’m not fighting
             hard for no reason.

¶28             This cross-examination was without objection and came after
Matta testified during direct examination that he previously “got convicted
to ten years in prison.” During direct examination, Matta also testified that
the reason he hid the gun was that he “didn’t want to get in trouble for a
gun. I just wanted to go back to prison and do my time, not an extra three,
four, five, six years for a gun that I wasn’t supposed to have.” Thus, during
his direct examination, Matta testified that he faced a lengthy prison
sentence and admitted that knowledge of that possibility had affected his
actions. Moreover, the closing jury instructions given directed that the jury
was not to consider the penalty when determining guilt or innocence.
Because Matta has shown no prejudice, it was not an abuse of discretion for
the superior court to deny his motion for new trial on this ground.

      B.     Comments On Matta’s Failure To Disclose His Version Of
             Events.

¶29            During Matta’s cross-examination, the prosecutor’s questions
led to this exchange:

             Q. A majority of this stuff you never told
             Detective Gonzalez back in 2012; isn’t that
             correct?

             A. As far as my crime, as far as what I’ve been
             charged for?

             Q. No, having the gun pointed at you and that’s
             the reason why you ran that night.

             A. I didn’t mention it.

             Q. Don’t you think that’s important?

             A. Yes, later on for the proceedings it’s probably
             an ace up my sleeve to prove my innocence.




                                       11
                             STATE v. MATTA
                            Decision of the Court

Matta argues that these, and other nearly identical questions, violated his
Fifth Amendment right to remain silent. Matta did not argue in the motion
for new trial, however, that he had invoked his right to remain silent. Where
a defendant has not invoked his right to remain silent, it is not a violation
of the right for the prosecutor to comment on his silence. See Salinas v. Texas,
133 S. Ct. 2174, 2180 (2013). Because the prosecutor did not violate Matta’s
rights, it was not an abuse of discretion for the superior court to deny his
motion for new trial.

                                CONCLUSION

¶30           This court has read and considered counsel’s brief and
Matta’s pro se supplemental brief and has searched the record provided for
reversible error and has found none. Leon, 104 Ariz. at 300; Clark, 196 Ariz.
at 537 ¶ 30. Accordingly, Matta’s convictions and resulting sentences are
affirmed as modified to reflect 820 days of presentence incarceration credit.

¶31            Upon filing of this decision, defense counsel is directed to
inform Matta of the status of his appeal and of his future options. Defense
counsel has no further obligations unless, upon review, counsel identifies
an issue appropriate for submission to the Arizona Supreme Court by
petition for review. See State v. Shattuck, 140 Ariz. 582, 584–85 (1984). Matta
shall have 30 days from the date of this decision to proceed, if he desires,
with a pro se motion for reconsideration or petition for review.




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




                                         12
