State v. Rivas


                                    IN THE
                                 DIVISION ONE

                       STATE OF ARIZONA, Appellee,


                         ANDREW RIVAS, Appellant.

                             No. 1 CA-CR 19-0542
                                FILED 1-14-2021

           Appeal from the Superior Court in Maricopa County
                        No. CR2018-005656-001
                  The Honorable Dewain D. Fox, Judge



Arizona Attorney General’s Office, Phoenix
By Casey Ball
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Kevin D. Heade
Counsel for Appellant
                            STATE v. RIVAS
                           Decision of the Court

                      MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge Cynthia J. Bailey joined.

H O W E, Judge:

¶1           Andrew Rivas appeals his second-degree murder conviction
and sentence. For the following reasons, we affirm.


¶2            In August 2017, S.E. was drinking at a bus stop when Rivas,
his wife, and his friend, Christopher Kemper, approached. S.E. spilled his
beer and Kemper joked, “that’s alcohol abuse.” S.E. was offended and
became belligerent and argumentative with him. S.E. followed Kemper
around the bus stop until Kemper climbed on top of the bus stop to get
away from him. After a couple minutes, Kemper got down from the bus
stop and saw S.E. and Rivas wrestling with each other. Kemper and Rivas’s
wife decided to walk away.

¶3            While Rivas and S.E. were wrestling each other, one of them
pulled out a knife. The State and Rivas disputed who had the knife first, but
Rivas was carrying a bag of kitchen utensils. At some point, Rivas stabbed
S.E. with the knife six times, once near his collarbone and five times in his
back and neck, killing him. A husband and wife sitting in their car at a
nearby intersection saw the stabbing. They called the police and then
followed Rivas as he fled.

¶4             Rivas caught up with his wife and Kemper, wrapped the knife
in a shirt, and dumped it in a trash can. Police found Rivas, his wife, and
Kemper running and hiding between bushes and trees. They found the
knife in the trash can after a bystander told them he had seen Rivas discard

¶5           The State charged Rivas with second-degree murder and
alleged several aggravating circumstances, including that the offense
involved the use of a dangerous instrument. While Rivas awaited trial, he
made several recorded phone calls from jail. In one, he told his wife that
“when we start going to trial, I’m going to have to be clean shaven” and

                            STATE v. RIVAS
                           Decision of the Court

“you know pretend to be the innocent little puppy, you know, the scared
little innocent puppy.”

¶6            Before trial, the State disclosed S.E.’s gang membership
identification card (“GMIC”) and statements that he had previously made
to police officers about his gang affiliation. The State then moved to
preclude that evidence. Rivas argued that the evidence was admissible
under Arizona Rules of Evidence 404(a) and 405(b). The court granted the
State’s motion, finding that the evidence was inadmissible as specific
instances of conduct under Rule 405(b) because when Rivas stabbed S.E.,
he was unaware of the GMIC and the gang-related statements. The court
also noted that evidence that S.E. was the initial aggressor was not an
essential element of Rivas’s self-defense claim. The court found, however,
that if Rivas laid the proper foundation, he could admit the GMIC and
gang-related statements under Rule 404(b) to corroborate his version of
events. The court also permitted Rivas to introduce testimony about gang-
related statements that S.E. had made at the time of the offense, if he laid
the proper foundation.

¶7             At the start of jury selection, four African Americans were in
the jury venire: Jurors No. 10, No. 12, No. 16, and No. 41. The court struck
Juror No. 10 for cause on its own motion without objection. The prosecutor
moved to strike Juror No. 41 for cause because of financial hardship and the
trial court granted the motion after Rivas took no position. Rivas moved to
strike Juror No. 16 for cause. The prosecutor objected and the court denied
Rivas’s for cause strike.

¶8            When the parties exercised their peremptory strikes, Rivas
struck Juror No. 16 and the prosecutor struck Juror No. 12, the last
remaining African American juror. Rivas challenged the strike under Batson
v. Kentucky, 

476 U.S. 79

(1986), and the prosecutor responded that

      [t]he reason we struck him is two-fold. When he explained
      that situation of his friend shooting up a gas station in Tempe,
      he described, one, how he was close to him and that he talked
      about how all of it was on film and camera, and he repeatedly
      indicated that. Our murder is not on film or camera. He said
      he could be fair and impartial because of this film, and it was
      taken in a gas station and gas stations have everything.

            So our concern is obviously he has this idea of what a
      murder should be like, and so we struck him for that reason
      because he has a very clear idea from his experience of what

                             STATE v. RIVAS
                            Decision of the Court

       he should be seeing to prove someone guilty. And obviously
       there are other ways to prove someone guilty.

               He’s also one of the very younger individuals in this
       and so we were trying to get rid of some of the individuals.
       He also only worked for FedEx for four months, so not a lot
       of life experience. He also indicated he only has four years of
       education on his juror notes.

The court found that the reasons were race-neutral, and Rivas did not argue
that they were pretextual. The court therefore found that Rivas had not met
his burden of proving purposeful discrimination and denied the Batson

¶9             At trial, the State played Rivas’s jail call where he stated that
he was going to “pretend to be the innocent little puppy.” Rivas then sought
under Rule 106 to play a portion of his conversation that took place a minute
or so after his statement. In that portion, Rivas stated that he was not trying
to kill S.E. and that he was just trying to defend himself, his wife, and
Kemper. He further stated that he did not accept a plea agreement and was
not going to accept the blame for defending himself and his wife because
S.E. had tried to rob them while he was “drunk and high.”

¶10            The trial court precluded Rivas from playing that portion of
the jail call because it did not add context to his previous statement. The
court allowed him to play another jail call where he stated that he was
scared and thought he was going to die, that S.E. had pulled out a weapon
and started attacking him first, that he felt the knife come close to his neck,
and that “he did what he had to do to protect [them].”

¶11           The jury found Rivas guilty of second-degree murder and
found that the State had proven that the offense involved a dangerous
instrument as an aggravating circumstance. He was sentenced to an
aggravated 20 years’ imprisonment with 592 days’ presentence
incarceration credit. Rivas timely appealed.


¶12            Rivas argues that the trial court erred by precluding
reputation or opinion evidence of S.E.’s gang membership to show that he
was the initial aggressor. When a defendant objects at trial, we review any
alleged errors for harmless error. State v. Romero, 

248 Ariz. 601

, 603 ¶ 8 (App.
2020). If the defendant does not object, we review for fundamental error.

Id. 4

                             STATE v. RIVAS
                            Decision of the Court

When a defendant objects to a trial court’s evidentiary rulings, we review
any alleged error for an abuse of discretion.

Id. at 606 ¶ 22. ¶13

           Evidence is generally not admissible to prove that a person
acted in conformity with his character, Rule 404(a), but a criminal defendant
may offer evidence of pertinent character trait of the victim of the alleged
crime, Rule 404(a)(2). A pertinent character trait may be proved by opinion
testimony about the victim’s reputation, Rule 405(a), or by specific instances
of conduct when the victim’s character trait is an essential element of a
charge or defense, Rule 405(b). When a defendant claims self-defense, for
example, he may present evidence that the victim had a violent reputation.
State v. Zaid, 

249 Ariz. 154

, 159 ¶ 18 (App. 2020). He may also present
specific instances of violent conduct, but only if he knew of them.

Id. at 158 ¶ 12. ¶14

           The trial court did not err by precluding evidence of S.E.’s
alleged gang affiliation under Rule 405(a) because Rivas never argued that
such evidence was admissible in the form of reputation or opinion
testimony. Trial courts are not required to rule on issues not raised before
them. State v. Cannon. 

148 Ariz. 72

, 76 (1985). In response to the State’s
motion to preclude, Rivas asserted that S.E.’s GMIC, alleged gang
affiliation, and prior gang-related statements were admissible under Rule
404(a) and Rule 405(b). Because Rivas never argued that the evidence was
admissible under Rule 405(a), the trial court was not required to decide that
issue and therefore did not err. Because no error occurred, we need not
decide whether any alleged error was fundamental.1 See State v. Escalante,

245 Ariz. 135

, 142 ¶ 21 (2018).

¶15            Rivas nevertheless argues that the State raised the issue in its
motion and during oral argument. But the State’s motion only cited the
general rules regarding character evidence under Rule 404 and 405, and the
State’s citation to Zamora was in the context of arguing that S.E.’s alleged
gang membership was not character evidence. The State never argued that
evidence of S.E.’s alleged gang membership was inadmissible under Rule
405(a). And Rivas’ citation to the oral argument transcript referencing the
court’s discussion with the State about opinion and reputation evidence
related to an entirely different motion.

¶16           Rivas also argues that because the trial court excluded
evidence of S.E.’s gang membership, his right to present a complete defense

1     In any event, evidence of gang membership is inadmissible under
Rule 405(a). State v. Zamora, 

140 Ariz. 338

, 341 (App. 1984).

                             STATE v. RIVAS
                            Decision of the Court

was violated. But the trial court’s exclusion of this evidence did not prevent
Rivas from presenting his defense. Although a defendant has a
constitutional right to present a complete defense, he must still comply with
the rules of evidence. State v. Foshay, 

239 Ariz. 271

, 279 ¶ 36 (App. 2016).

¶17            Evidence of S.E.’s gang membership was inadmissible as
specific instances of conduct under Rule 405(b) because at the time of the
offense Rivas was unaware of S.E.’s GMIC and gang-related statements to
police. See 

Zaid, 249 Ariz. at 158

¶ 12. He also never asked the trial court to
admit evidence of S.E.’s gang membership under Rule 405(a). Even so, the
trial court ruled that Rivas could present evidence of specific gang-related
threats that S.E. made at the time of the offense, but Rivas never presented
such evidence. The court also ruled that S.E.’s GMIC might be admissible
to corroborate Rivas’s version of the events if he laid the proper foundation
but he made no attempt to do so. Rivas’s right to present a complete defense
was not violated.

¶18           Rivas argues next that the trial court erred by precluding the
admission of additional statements from the jail call that the State had
played for the jury. He contends that his statements were admissible under
Rule 106 to add context to his statements about grooming himself for trial.
“If a party introduces all or part of a writing or recorded statement, an
adverse party may require the introduction, at that time, of any other
part—or any other writing or recorded statement—that in fairness ought to
be considered at the same time.” Ariz. R. Evid. 106.

¶19           The trial court did not err by precluding admission of Rivas’s
statements that took place later in his jail call. The portion Rivas sought to
introduce did not relate to his earlier statement that he was going to
“pretend” to look like a “scared, innocent little puppy.” Rather, his
statements were declarations of innocence. Defense counsel even admitted
that the statements did not take place until later in the conversation.
Moreover, even if the trial court did err, such error was harmless because
Rivas introduced another jail call where he stated that S.E. had swung a
knife at him and that he was defending himself and his wife.

¶20            Rivas also argues that the trial court erred by allowing the
State to play the jail call where he discussed his intention to groom himself
because it undermined his presumption of innocence. He relies on Estelle v.

425 U.S. 501

(1976) and Deck v. Missouri, 

544 U.S. 622

(2005) to
support his argument.

                              STATE v. RIVAS
                             Decision of the Court

¶21            Those cases are distinguishable from the present case,
however, because they involved a defendant who was forced to wear prison
attire or shackles during the trial. See 

Estelle, 425 U.S. at 512

–13; see also 

Deck, 544 U.S. at 634

. Rivas was not forced to appear at trial in his prison attire, in
shackles, or ungroomed. Rivas’s statement in his jail call was not about
trying to avail himself of the presumption of innocence. Rather, he stated
that he wanted to groom himself to “pretend” to look like a scared, innocent
puppy. His use of the word “pretend” was evidence of guilt and was
properly admitted to rebut testimony that he was scared of S.E. Therefore,
the trial court did not err by admitting Rivas’s jail call. And Rivas has not
shown prejudice because the jurors were instructed on the presumption of
innocence and jurors are presumed to follow those instructions. See State v.

240 Ariz. 114

, 117 ¶ 13 (2016).

¶22            Rivas argues next that the trial court erred because it did not
find that the prosecutor’s reason for striking Juror No. 12 was a pretext for
discrimination under Batson. “When reviewing a trial court's ruling on
a Batson challenge, we review de novo the court’s application of the law but
defer to its findings of fact unless clearly erroneous.” State v. Butler, 

230 Ariz. 465

, 474 ¶ 36 (App. 2012). A Batson challenge involves a three-step
inquiry: (1) the opponent of the strike must make a prima facie showing of
racial discrimination; (2) if shown, the striking party must then provide a
facially race-neutral reason for the strike, and (3) if provided, the opponent
must show the facially-neutral reason is pretextual for purposeful
discrimination. State v. Gentry, 

247 Ariz. 381

, 384 ¶ 9 (App. 2019).

¶23            Whether Rivas made a prima facie showing of racial
discrimination is unclear because his own counsel exercised a peremptory
strike to remove the only other remaining African American juror before
the prosecutor struck Juror No. 12. But this issue is moot because the
prosecutor waived any argument that Rivas did not make the showing by
providing his reason for the strike. Hernandez v. New York, 

500 U.S. 352

, 359
(1991); State v. Gay, 

214 Ariz. 214

, 220 ¶ 18 n.4 (App. 2007).

¶24          Even assuming that Rivas made such a showing, the
prosecutor provided a race-neutral reason for striking Juror No. 12: he had
a friend who had “shot up” a gas station, and the incident was caught on
camera. The prosecutor explained that the incident here was not caught on
camera and that Juror No. 12 had an idea of what a murder looks like and
what evidence is needed to prove someone guilty. He also stated that Juror
No. 12 was very young and did not have a lot of life experience. The court
found that the reasons were race-neutral and allowed the strike. Later, in

                             STATE v. RIVAS
                            Decision of the Court

its minute entry for the first day of trial, the court also found that Rivas had
not met his burden of proving purposeful discrimination.

¶25            Rivas argues that State v. Porter, 

248 Ariz. 392

(App. 2020), rev.
granted, Nov. 3, 2020, requires this Court to remand the case so the trial
court can make the required pretextual discrimination finding. This Court
held there that when “confronted with a pattern of strikes against minority
jurors, the trial court must determine expressly” that the prosecutor’s
proffered reasons are not a pretext for purposeful discrimination,
particularly when one of the proffered reasons is the prospective juror’s

demeanor. 248 Ariz. at 397

, 399 ¶¶ 16, 20–21. But here, the trial court
expressly found that the prosecutor’s proffered reasons were not a pretext
for purposeful discrimination when it found that Rivas had not met his
burden of proving purposeful discrimination. Therefore, Rivas’ argument
is unavailing.

¶26          Even so, Porter is inapplicable because the trial court here was
not confronted with a pattern of strikes. See

id. at 399 ¶ 21

(prosecutor struck
the only two African American jurors and attempted to strike the only
remaining minority juror). While the prosecutor moved to strike one
African American juror for cause—with no objection from Rivas—he then
challenged Rivas’s attempt to strike Juror No. 16 for cause, and Rivas later
used a peremptory strike on that juror. And unlike Porter, the prosecutor
here did not attempt to strike the only remaining minority jurors, five of
whom were on the jury panel, and he did not rely on a prospective juror’s
demeanor as a basis for the strike. Porter is therefore inapplicable.

¶27           Finally, Rivas argues that this Court should conduct a de novo
review of the record and find that the prosecutor’s striking Juror No. 12 was
pretextual for purposeful discrimination. He contends that the prosecutor
did not question Juror No. 12 and that when he questioned Juror No. 41, he
gave him incorrect information about juror compensation. But “disparate
questioning or investigation alone does not constitute a Batson violation.”
Flowers v. Mississippi, 

139 S. Ct. 2228

, 2248 (2019). Rather, disparate
questioning, along with other evidence, may inform the trial court’s
evaluation of whether discrimination has occurred.

Id. ¶28

           The only additional evidence of discrimination Rivas offered
was the prosecutor’s telling another prospective juror that the juror would
not be eligible for full compensation from the jury service fund until day
four of trial when he would not be eligible until day six. The prosecutor’s
mistake in telling another juror that he would be eligible for full
compensation two days sooner than the law provides is not evidence of

                            STATE v. RIVAS
                           Decision of the Court

discrimination. Rather, if the prosecutor had provided that juror with the
correct number of days, that would have further supported the juror’s
request to be excused for financial hardship; he told the court that he would
experience financial hardship depending on how long it took to receive full
compensation. Therefore, Rivas failed to show that the prosecutor’s striking
Juror No. 12 was a pretext for discrimination and the trial court properly
allowed the strike.


¶29          For the foregoing reasons, we affirm.

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


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