State v. Vazquez

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LUIS FERNANDO VAZQUEZ, Appellant.

No. 1 CA-CR 21-0154
FILED 6-2-2022

Appeal from the Superior Court in Maricopa County
No. CR2011-161993-001
The Honorable Warren J. Granville, Judge Retired

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jillian Francis
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Jesse Finn Turner
Counsel for Appellant
 STATE v. VAZQUEZ
Decision of the Court

MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which Presiding
Judge Cynthia J. Bailey and Judge D. Steven Williams joined.

S W A N N, Judge:

¶1 Luis Fernando Vazquez appeals from his conviction and
resulting sentence for theft of means of transportation. Vazquez argues the
superior court committed reversible error by denying his motion for a
mistrial based on prosecutorial error1 in closing argument. For the
following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 The relevant facts are uncontested. John worked as a
customer service representative for Penske Truck Leasing in September
2011. One night that month, he was monitoring the truck yard when he
saw Vazquez attempting to get into one of the trucks. John immediately
recognized Vazquez because Vazquez worked as a commercial driver for
SP Richards, a company that regularly leased trucks from Penske, and the
two had interacted frequently over the past year. Vazquez told John that
he was there to pick up a truck for SP Richards but the key he had been
given did not work. John helped Vazquez open the door and start the truck,
then Vazquez drove away.

¶3 While reviewing rental contracts a few minutes later, John
noticed that the truck Vazquez had taken was scheduled for a different
company that night. Believing the truck had mistakenly been leased to two
companies at the same time, John immediately told his manager about the
problem. The manager soon discovered that SP Richards had not reserved
any trucks for that night. After further learning Vazquez had stopped
working for SP Richards several weeks earlier, the manager called the

1 Because there is no allegation that the prosecutor committed
intentional misconduct in this case, we refer to the prosecutor’s conduct as
“prosecutorial error.” See State v. Murray, 250 Ariz. 543, 548, ¶ 12 (2021)
(characterizing a prosecutor’s incorrect reasonable-doubt statement as
“error” rather than “misconduct” in the absence of evidence that the
prosecutor’s actions were intentional).

2
 STATE v. VAZQUEZ
Decision of the Court

police and reported the truck stolen. The next day, police officers found the
truck abandoned several miles away from Penske.

¶4 A grand jury indicted Vazquez on one count of theft of means
of transportation, a class three felony. At trial, defense counsel explained
in their opening statement that the state would not be able to prove the
charged offense because, inter alia, Vazquez had “been charged with the
wrong statute,” a theory he later repeated in closing argument. Vazquez
testified and acknowledged that when he took the truck, he no longer
worked for SP Richards. According to Vazquez, John had allowed him to
borrow the truck for a few hours that night so he could complete a few side
jobs. Vazquez also explained that John called him shortly after he had left
and asked him to return the truck right away. When Vazquez said he could
not do so because he had already started a job, John told him to leave the
truck somewhere close to Penske when he was done.

¶5 In pertinent part, the final jury instructions included an
instruction on the lesser-included offense of unlawful use of means of
transportation, which directed the jurors to consider the lesser offense only
if they either found Vazquez not guilty of theft of means of transportation
or, “after full and careful consideration of the facts,” could not agree on a
verdict for that charge. The prosecutor addressed the lesser-included
offense instruction in closing argument:

The defense included a lesser included. And that’s on Page 5.
It’s fair game for you all. The State did not charge this. It’s
up to the jury to consider. . . . If you find that the defendant[,]
without the intent to permanently deprive, knowingly took
unauthorized control over another person’s transportation,
the tractor, that’s a violation of that lesser included statute.
The State did not charge that[.]

¶6 Following the state’s closing argument, the superior court
excused the jurors, and Vazquez moved for a mistrial based on the
prosecutor’s statement that the defense had requested the lesser-included
offense instruction. Declining to rule on the motion that instant, the court
ordered the parties to provide case law supporting their positions, then
recessed for the day.

¶7 The next morning, Vazquez argued that he was entitled to a
mistrial under State v. Stambaugh, 121 Ariz. 226 (App. 1978). The prosecutor
responded that although he had made a “mistake,” Stambaugh did not
require a mistrial. After considering the parties’ arguments, the superior

3
 STATE v. VAZQUEZ
Decision of the Court

court found that the prosecutor’s statement was improper but denied the
mistrial motion. Over Vazquez’s objection, the court instead gave the
following curative instruction:

[A]ny reference by counsel during closing argument as to
which party requested a particular jury instruction is hereby
stricken, and the jury is instructed to disregard that reference.
You may not consider it in any way in reaching your verdict.

¶8 The jury found Vazquez guilty of theft of means of
transportation, and the superior court later sentenced him to nine years’
imprisonment.2 Vazquez appeals.

DISCUSSION

¶9 Asserting the prosecutor’s “actions here are identical to those
in Stambaugh,” Vazquez argues the superior court abused its discretion by
denying his mistrial motion. For its part, the state contends (1) the absence
of a contemporaneous objection limits our review to fundamental error, and
(2) Vazquez is not entitled to relief under that standard because Stambaugh
is distinguishable. We need not resolve the parties’ standard-of-review
dispute because, for reasons set forth infra ¶¶ 14–16, Vazquez’s claim fails
under any applicable standard of review. See State v. Diaz, 223 Ariz. 358,
360, ¶ 11 (2010) (“Regardless of how an alleged error ultimately is
characterized, . . . a defendant on appeal must first establish that some error
occurred.”).

¶10 “Because the trial court is in the best position to determine the
effect of a prosecutor’s comments on a jury, we will not disturb a trial
court’s denial of a mistrial for prosecutorial [error] in the absence of a clear
abuse of discretion.” State v. Newell, 212 Ariz. 389, 402, ¶ 61 (2006). To
determine whether prosecutorial error warrants a mistrial, courts consider:
“(1) whether the prosecutor’s statements called to the jury’s attention
matters it should not have considered in reaching its decision and (2) the
probability that the jurors were in fact influenced by the remarks.” Id. at
¶ 60. “[R]eversal is warranted if a reasonable likelihood exists that the
[prosecutorial error] could have affected the jury’s verdict, thereby denying
the defendant a fair trial.” State v. Speer, 221 Ariz. 449, 458, ¶ 42 (2009)
(citation and internal quotation marks omitted); see also State v. Nelson, 229
Ariz. 180, 189, ¶ 38 (2012) (explaining prosecutorial error is harmless when

2 Vazquez absconded on the final day of trial and was eventually
sentenced in 2019.

4
 STATE v. VAZQUEZ
Decision of the Court

courts are satisfied “beyond a reasonable doubt it did not contribute to or
affect the verdict” (citation omitted)).

¶11 As an initial matter, it is undisputed that the prosecutor’s
comment constituted error. See Stambaugh, 121 Ariz. at 228 (“[T]hat
appellant . . . offered an instruction on the lesser included offense . . . was
not a matter that the jurors would have been justified in considering in
determining their verdict.”). We next address Vazquez’s contention that
Stambaugh requires reversal of his conviction. In Stambaugh, the superior
court instructed the jurors on the charged offense of second-degree murder
and the lesser-included offense of involuntary manslaughter. Id. at 227–28.
Despite the inclusion of the lesser offense, defense counsel asserted an “all-
or-nothing” defense in closing argument, urging the jurors to either find the
defendant guilty of the charged offense or not guilty at all:

(The prosecutor) has tried every which way to get a
conviction in this case. He starts out by saying: This murder
is intentional. He will show there is some deliberate act with
malice. Now, he is talking about involuntary manslaughter,
talking about instructions on involuntary manslaughter.
Sometimes lawyers demand the moon hoping they can get
something. I submit (the prosecutor) is asking for second
degree murder hoping he can get involuntary manslaughter
from you. I say to you: If [the defendant] did all the things
(the prosecutor) says, convict him of second degree murder.
If he is innocent, free him. Id. at 227.

¶12 In rebuttal, the prosecutor responded to the defense theory:

He says I’m talking about manslaughter; that I’m asking you
to convict him of murder, yet I’m giving you a discussion
relating to the crime of manslaughter. As (defense counsel)
indicated, before we came out here and started final
arguments, we sat with the judge, spent the better part of an
hour going over the instructions. The fact is (defense counsel)
requested an instruction on manslaughter. This is not
something that I—[.] Id.

The superior court sustained defense counsel’s objection at that point, then
later instructed the jurors:

As a matter of law[,] I decide which instructions should be
given regardless of which party requests those instructions.
If an instruction is requested that I don’t think should be

5
 STATE v. VAZQUEZ
Decision of the Court

given, I will not give it. If one is requested which I think must
be given, I will give it. Id.

The jurors ultimately found the defendant guilty of involuntary
manslaughter. Id.

¶13 On appeal, we vacated his conviction and sentence,
concluding the superior court improperly denied the defendant’s
subsequent mistrial motion. Id. at 228–29. We explained that “the
prosecutor’s reference to defense counsel’s request for the instruction was
doubly prejudicial: it implied, first, an admission that appellant was guilty
of the lesser offense and, second, duplicity on the part of defense counsel.”
Id. at 228. We also reasoned that the superior court’s instruction
emphasized rather than cured the resulting prejudice because it “tended to
further disparage defense counsel’s argument for acquittal as the
alternative to conviction of second degree murder.” Id.

¶14 We find Stambaugh distinguishable. Here, unlike in
Stambaugh, the jurors found the defendant guilty of the greater offense.
And as recounted supra ¶ 5, the lesser-included offense instruction
prohibited consideration of the lesser offense unless the jurors first found
Vazquez not guilty of the greater offense or could not reach a verdict on
that charge. Because we presume the jurors followed that instruction,
Newell, 212 Ariz. at 403, ¶ 68, we have no basis to conclude that the jurors
ever confronted the prosecutor’s error in deciding the case, let alone that
the error influenced the verdict. See Speer, 221 Ariz. at 458, ¶ 42; see also
Nelson, 229 Ariz. at 189, ¶ 38.

¶15 Nor is there merit to Vazquez’s argument that the superior
court was nonetheless compelled to order a mistrial based on the
similarities his case shares with Stambaugh, notwithstanding the ultimate
verdict. The Stambaugh prosecutor’s error severely damaged the credibility
of the defendant’s unequivocal all-or-nothing defense, given that it
impermissibly implied that the defendant in fact believed the evidence
supported the lesser offense. Here, on the other hand, the prosecutor’s
error occurred in initial closing argument when defense counsel had
already introduced the notion that the state had charged Vazquez with the
wrong crime. Given these circumstances, the superior court could
reasonably determine that Vazquez suffered less prejudice than did the
Stambaugh defendant. See State v. Armstrong, 208 Ariz. 345, 354, ¶ 40 (2004)
(explaining an abuse of discretion occurs when “no reasonable judge would
have reached the same result under the circumstances”).

6
 STATE v. VAZQUEZ
Decision of the Court

¶16 Furthermore, the superior court’s curative instruction evaded
the flaw we identified in the Stambaugh instruction. Here, the court merely
directed the jurors to disregard the improper comment whereas the
Stambaugh instruction implicitly endorsed the propriety of the lesser-
included offense, thereby exacerbating the harm done to the defense theory.
Within the context of Vazquez’s trial, the court’s curative instruction
sufficiently ameliorated any resulting prejudice. See State v. Adamson, 136
Ariz. 250, 262 (1983) (explaining a mistrial “is the most dramatic remedy for
trial error and should be granted only when it appears that justice will be
thwarted unless the jury is discharged and a new trial granted”); State v.
Herrera, 203 Ariz. 131, 135, ¶ 6 (App. 2002) (“A trial court is in the best
position to determine an appropriate remedy for trial error that will
preserve a defendant’s right to a fair trial.”). Accordingly, the superior
court did not err, fundamentally or otherwise, in denying the mistrial
motion.

CONCLUSION

¶17 We affirm.

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

7