Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CR2011-005417-001 The Honorable Robert E. Miles, Judge
Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee
Maricopa County Public Defender, Phoenix By Peg Green Counsel for Appellant
Judge John C. Gemmill delivered the decision of the Court, in which Presiding Judge Maurice Portley and Judge Kent E. Cattani joined.
¶1 Jermaine Pledger appeals his convictions and sentences for conspiracy to commit possession of marijuana for sale, possession of marijuana for sale, armed robbery, kidnapping, misconduct involving weapons, misconduct involving body armor, and two counts of aggravated assault. Pledger argues the prosecutor engaged in misconduct when she vouched for a witness during closing argument and that the second count of aggravated assault could not be a class 2 felony because the State failed to prove Pledger knew the victim was a peace officer engaged in the execution of official duties. We have jurisdiction pursuant to Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A) (2003), 13-4031 (2010) and 13-4033 (2010). For the reasons explained below, we affirm Pledger's convictions and sentences.
¶2 Pledger sought to purchase approximately 170 pounds of marijuana from "Ruiz." Ruiz eventually drove a vehicle containing 170 pounds of marijuana to a residence Pledger led him to and parked the vehicle in the garage, after which Pledger closed the garage door. As Ruiz walked into the residence from the garage, another person struck Ruiz in the chest with a handgun and told him it was "a rip, " meaning they were going to steal the marijuana. Pledger and two other armed men then held Ruiz in the residence at gunpoint. Pledger and his accomplices were unaware that Ruiz was a paid informant working with an undercover police officer who was observing the residence from an unmarked car parked up the street.
¶3 Believing they would kill him, Ruiz fled through the back door of the residence when the opportunity arose. Pledger and his two accomplices then fled the house. Pledger and one accomplice fled in Pledger's vehicle, while the third accomplice fled in Ruiz's vehicle with the marijuana.
¶4 Ruiz ran to the undercover officer and informed him it was a "drug rip." The officer and Ruiz pursued Pledger's vehicle and eventually found it stopped in an industrial cul-de-sac. The officer stopped his vehicle up the street from the cul-de-sac, retrieved a bullet-proof-vest from the trunk and put it on in a manner that he hoped would allow Pledger and his accomplice to see the word "POLICE" emblazoned in yellow letters on the vest. Because he was in plain clothes, the officer hoped this would prevent Pledger and his accomplice from taking any action against them. When the officer got back in his vehicle, however, Pledger drove straight at him. As he approached the officer's vehicle, Pledger lowered the driver's window, held a gun out the window and aimed it at the officer. The officer feared Pledger would shoot him. Pledger, however, drove past the officer's vehicle and did not fire. After a short pursuit, other officers eventually stopped and apprehended Pledger and his accomplice. The officers eventually found Ruiz's vehicle and the marijuana at another location.
I. Prosecutorial Misconduct
¶5 Pledger contends the prosecutor engaged in misconduct during her rebuttal argument when she allegedly vouched for ...