State of Arizona v. Francisco Antonio Lopez

Citations: 230 Ariz. 15; 279 P.3d 640; 638 Ariz. Adv. Rep. 4; 2012 WL 2513457; 2012 Ariz. App. LEXIS 109Docket: 2 CA-CR 2011-0277

Court: Court of Appeals of Arizona; June 29, 2012; Arizona; State Appellate Court

Original Court Document: View Document

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Francisco Antonio Lopez was convicted of multiple charges, including attempted first-degree murder, five counts of aggravated assault, and misconduct involving weapons. Following a jury trial, he received a total sentence of 52.5 years in prison. On appeal, Lopez challenges the sufficiency of the evidence for six of his convictions and claims prosecutorial misconduct denied him a fair trial. 

The appellate court affirms the convictions, emphasizing that evidence must be viewed in the light most favorable to sustaining the jury's verdicts. The court noted that substantial evidence, whether circumstantial or direct, must support the jury's conclusions. Lopez specifically contends that he acted in self-defense during the incidents leading to his convictions, arguing that the state did not prove beyond a reasonable doubt that his actions were unjustified. However, he did not testify at trial, and his witness failed to provide evidence supporting his self-defense claim, despite the jury being instructed on this defense. The court concludes that the evidence was sufficient to uphold the convictions.

Substantial evidence presented by the state contradicted Lopez’s justification for his actions. Testimony indicated that Lopez intended to kill D., including D.’s claim that Lopez attempted to shoot him while he sought cover under a truck. A retired officer corroborated that Lopez's shots were aimed at D. rather than as warnings. The evidence was sufficient for the jury to conclude beyond a reasonable doubt that Lopez's conduct was not justified, supporting his conviction for attempted murder and aggravated assault.

Regarding the charge of attempting to influence a witness, Lopez argued there was insufficient evidence because T. had not been officially identified as a witness at the time he contacted her. However, a person can be guilty of influencing a witness if they attempt to confer benefits upon someone they believe may be called as a witness, as stated in A.R.S. 13-2802(A). The purpose of this statute is to prevent corrupt interference in the judicial process. 

Lopez sent T. a letter offering to abandon his gang lifestyle in exchange for her adherence to a predetermined story about the events leading to their charges. This action aimed to influence T.'s future testimony, fitting the prohibited conduct outlined by the law. T. was an eyewitness and participant in the crimes, making it reasonable for Lopez to believe she would be contacted by the state for her account. Therefore, substantial evidence supported the jury's verdict that Lopez attempted to influence a witness.

The record also revealed a discrepancy between the oral sentence and the sentencing minute entry, which incorrectly stated Lopez was convicted of influencing a witness, a class five felony, instead of attempted influencing a witness, a class six felony. The transcript accurately reflected the conviction of attempted influencing a witness. As the trial court's intent could be discerned from the record, the sentencing minute entry was modified to correctly indicate the conviction.

Lopez alleges prosecutorial misconduct based on comments regarding his right to remain silent, which he did not object to during trial, thereby forfeiting his right to review unless he can demonstrate fundamental error. Fundamental error is characterized by its impact on the case's foundation, depriving the defendant of essential rights or resulting in an unfair trial. The burden lies with the defendant to prove both the fundamental nature of the error and the resultant prejudice. 

Prosecutorial misconduct is defined as intentional actions by the prosecutor that are known to be improper and prejudicial. For such misconduct to warrant a finding of fundamental error, it must be pervasive throughout the trial. During direct examination, the prosecutor questioned a police officer about Lopez’s failure to turn himself in for three weeks after the crimes, which Lopez claims improperly commented on his right to remain silent.

The Fifth Amendment protects against being compelled to testify against oneself. While the Supreme Court allows for comments on pre-arrest silence for impeachment, it has not definitively ruled on using pre-arrest silence as substantive evidence of guilt. Arizona case law indicates that a prosecutor can comment on pre-Miranda silence, though this has been characterized as dictum in recent rulings. Specifically, the Arizona Supreme Court has prohibited comments on post-arrest, pre-Miranda silence, but left the issue of pre-arrest silence unresolved. Moreover, certain federal appellate courts have ruled that pre-arrest silence is inadmissible as substantive evidence when occurring in the context of official questioning.

The Fifth, Ninth, and Eleventh Circuit courts permit the use of a defendant's pre-arrest, pre-Miranda silence as substantive evidence of guilt. The Fifth Circuit asserts that the Fifth Amendment protects against compelled self-incrimination but does not prohibit the evidentiary use of a defendant's silence, which may imply guilt. Similarly, the Ninth Circuit has ruled that admitting the silence of a non-custodial individual does not violate constitutional rights, referencing Justice Stevens's view that a citizen's constitutional right to remain silent does not affect the significance of their silence before police contact. 

The court agrees with this reasoning, stating that when a defendant's silence is not prompted by state action, the Fifth Amendment does not restrict the state's comments on that silence. In the case of Lopez, the prosecutor's inquiry regarding his pre-arrest, pre-Miranda silence was appropriate since it occurred before any law enforcement interaction. The court concludes that Lopez's silence is not protected under the Fifth Amendment, finds no error in the prosecutor's actions, and affirms Lopez's convictions and sentences.