Court of Appeals of Arizona, First Division, Department E
Not for Publication Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court of Maricopa County Cause No. CR2011-164772-001 The Honorable William L. Brotherton, Jr., Judge
Thomas C. Horne, Attorney General Phoenix by Joseph T. Maziarz, Chief Counsel Criminal Appeals Section Attorneys for Appellee
Terry J. Adams, Maricopa County Public Defender Phoenix Attorneys for Appellant
JON W. THOMPSON, Judge
¶1 Adalberto Rivas (defendant) appeals his convictions and sentences on two counts of aggravated assault on police officers, class five felonies, and one count of criminal trespass, a class six felony. Defendant asserts that the trial court erred in failing to grant him a new trial after the prosecutor improperly commented on his right to remain silent during closing arguments. Finding no error, we affirm.
¶2 On Christmas morning 2011, police were called to the residence of S.M. She reported that her former boyfriend, defendant, had forced his way into her home. Police found defendant hiding under her bed, handcuffed him, and put him in a police vehicle while conducting the initial investigation. Defendant made multiple statements to police prior to receiving Miranda warnings including " [t]respassing maybe, but I wasn't burglarizing nothing" and that he'd now learned his lesson and he would "leave her alone." Defendant got increasingly agitated, apparently highly concerned that he might be charged with burglary; he attempted to exit the vehicle, eventually assaulting two officers at the scene. Defendant was taken to the police station by a third officer, Officer Stokes, who had reported to the officers needing assistance call. Officer Stokes took defendant to the station and administered Miranda warnings.
¶3 During trial, both the state and defense raised defendant's pre-Miranda statements and his attempts to engage the officers at the scene. Officer Stokes testified that Miranda warnings were administered at the police station, and defendant was angry and swore at the officer, leaving the officer unable to complete the interview due to defendant's lack of cooperation. During the defense's closing argument, defendant's counsel made assertions that defendant:
wanted to talk to the officers [about the charges], and they didn't listen to that. He attempted over and over . . . this is a citizen who is being charged with something, and he is saying to the officers, well, wait a second. Let's talk. . . . They weren't having any of it. They were pushing him, cramming him back into the police car, and he was standing back up against it. Not the smartest move, resisting arrest. Not assault.
Defense counsel pointed to Officer Stokes' testimony and the defendant's attempts to talk to officers, and argued that he may have been resisting arrest but it was not aggravated assault. On rebuttal, the prosecutor stated Officer Stokes:
tried to talk to the defendant, and again, that's very important because the defendant just wanted to tell his side of the story. He was trying to tell these officers, hey, man, it is not a burglary. But these officers were not listening. Okay. He is at the station. The officer is giving him Miranda. Does he at that point say, you got it all wrong. I wasn't burglarizing this house. I had permission to be there. We were boyfriend/girlfriend. She let me in the house, he didn't say any of that.
Defendant objected, stating it was an improper comment on defendant's right to remain silent, and he moved for a mistrial. The prosecutor explained that he had been about to re-iterate Officer Stokes' testimony about defendant swearing at Officer Stokes during the Miranda rights to show defendant's anger at the arrest. The trial judge warned the prosecutor that he was getting close to the edge but stated:
you can say that what he told the officers was "fuck you" but just state that. But again he was voluntarily speaking to the officers, so I don't think it's inappropriate to comment on the fact that all this was going on. He could have said the other ...