State v. Corona2/11/1997
ven, although the defendant failed to object. The only evidence regarding the defendant's exit was his testimony that, after talking to A.L. and B.L., he got on his bicycle and left. This evidence was insufficient to support an inference of flight at all, let alone a "reasonable inference that the flight or attempted flight was open, such as the result of an immediate pursuit." State v. Smith, 113 Ariz. 298, 300, 552 P.2d 1192, 1194 (1976). There was no evidence at all of concealment.
3. Instruction on consideration of prior bad acts
The defendant also complains about the following instruction, Recommended Arizona Jury Instruction - Criminal ("RAJI") 26:
Evidence of other bad acts of the Defendant has been admitted into evidence in this case. Such evidence is not to be considered by you to prove the character of the Defendant or to show that he committed the offense charged. It may, however, be considered by you regarding the defendant's motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.
He argues that giving the instruction amounted to fundamental error because the instruction's reference to "other bad acts" rather than simply "other acts" constituted an unsuitable comment on the evidence. See Ariz. Const. art. 6, § 27.
The instruction closely parallels Rule 404(b), ARIZ. R. EVID., and seeks to prevent the jury from improperly considering other acts unrelated to the crime(s) for which the defendant is being tried. Significantly, however, Rule 404(b) does not, in fact, include the word "bad" in modifying the word "acts," thereby distinguishing "acts" from "crimes" or "wrongs," which two words implicitly convey malfeasance. Indeed, the "act" in question need not be criminal or wrongful. See State v. Castaneda, 150 Ariz. 382, 390, 724 P.2d 1, 9 (1986); State v. Passarelli, 130 Ariz. 360, 363-64, 636 P.2d 138, 141-42 (App. 1981); see also Ariz. R. Crim. P. 15.1(a)(6). To then add "bad" to "acts" in the instruction thus constitutes a judicial comment on the evidence because, after prosecution evidence of those prior acts has been admitted, the defense has the opportunity to rebut or explain the earlier conduct, i.e., whether it was "bad." The supreme court has advised against instructions which "might cause jurors to view the evidence 'in accordance with what they believe to be the court's judgment as to its weight rather than their own.'" Rosen v. Knaub, 175 Ariz. 329, 331, 857 P.2d 381, 383 (1993) (quoting Security Benefit Ass'n v. Small, 34 Ariz. 458, 468, 272 P. 647, 651 (1928)). By including the word "bad," the instruction becomes an improper judgment about conflicting evidence, although in most cases, as in this one, the error will not be fundamental given the nature of the acts admitted in evidence and the context of the case.
4. Closing Argument
The defendant claims that the prosecutor committed misconduct in two statements which she made to the jury during closing argument. Again, no objections were raised at trial.
a. Argument regarding reasonable doubt
During her rebuttal closing argument, the prosecutor stated that "the State submits to you that if you find the Defendant not guilty you need to have a reason in order to find reasonable doubt." The defendant argues that this remark shifted the burden of proof to him.
In saying that to "find the Defendant not guilty you need to have a reason," the prosecutor erroneously suggested that the jurors had to have a justification to find the defendant not guilty. On the contrary, in order to find the defendant not guilty, jurors simply needed to possess a doubt that the defendant was
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