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State v. Corona2/11/1997
d, animus toward T.C. As a result, the trial court committed reversible error in refusing to instruct the jury on misdemeanor threatening and intimidating. See Magana, 178 Ariz. at 418, 874 P.2d at 975.
B. Remaining Issues
We will address such of the remaining issues as warrant comment given that further proceedings are necessary.
1. Comment on Failure to Call Expert Witness
During the prosecutor's rebuttal closing argument, the following exchange occurred:
MISS DAIZA : The State provided you with a gang expert who testified about the subculture of gangs. What motivates them. How they're composed. The activities that they do. They thrive on violence.
The defense did not provide you with any expert who testified.
MR. AGAN [DEFENSE COUNSEL]: Your Honor, I'll object to that. Improper evidence. We have no burden.
MS. DAIZA: Your honor, there's case law that allows the State to argue that the defense did not provide an expert.
THE COURT: You may proceed.
MS. DAIZA: They did not provide you with an expert witness to counter what Detective Luebkin said. So you will decide how much weight to give to Detective Luebkin's testimony as far as his experience in the area of gangs, his credentials, his contacts with gang members, his investigation of gang-motivated crimes.
On appeal, the defendant complains that the trial court erred in failing to sustain his objection to the prosecutor's comment on his failure to call an expert witness. The state responds that, under State ex rel. McDougall v. Corcoran (Keen), 153 Ariz. 157, 160, 735 P.2d 767, 770 (1987), the prosecutor was permitted to comment on the defendant's failure to present exculpatory evidence. In Keen, the supreme court held that the state could properly comment on a defendant's failure to introduce the results of testing a breath sample he had received after his arrest for driving under the influence of an intoxicant. Id. The court found that "such comment is permitted by the well recognized principle that the nonproduction of evidence may give rise to the inference that it would have been adverse to the party who could have produced it." Id. However, in Gordon v. Liguori, 182 Ariz. 232, 236, 895 P.2d 523, 527 (App. 1995), a medical malpractice case, this court held that the trial court did not err in precluding comment by the plaintiffs on the defendants' failure to call experts. One reason that the restriction on such comment was proper was "because defendants did not call the subject experts, the jury knew nothing about them and there was no need to explain why they did not testify." See also Spraker v. Lankin, 218 Kan. 609, 545 P.2d 352, 357 (Kan. 1976) (court committed reversible error when it permitted defense counsel, in closing arguments, to comment on plaintiff's failure to call an expert who had been consulted, but who was not named as a witness and whose existence was not disclosed by the evidence at trial). This accords with the general rule that closing arguments must be based on facts that the jury is entitled to find from the evidence and not on extraneous matters not received in evidence. State v. Dumaine, 162 Ariz. 392, 402, 783 P.2d 1184, 1194 (1989). Because there was no mention during the trial that the defendant had retained or even consulted an expert witness on gangs, unlike Keen in which the defendant had received a sample for the very purpose of independent consultation, the prosecutor's comment was improper and the defendant's objection should have been sustained. 2. Flight or concealment instructions
Neither the instruction on flight nor the one on concealment should have been gi
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