NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

JERMAINE PLEDGER, Appellant.

No. 1 CA-CR 12-0604

FILED 1-8-2015

Appeal from the Superior Court in Maricopa County

No. CR2011-005417-001

The Honorable Robert E. Miles, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Joseph T. Maziarz

Counsel for Appellee

Maricopa County Public Defender, Phoenix

By Peg Green

Counsel for Appellant

MEMORANDUM DECISION

Judge John C. Gemmill delivered the decision of the Court, in which 

Presiding Judge Maurice Portley and Judge Kent E. Cattani joined.

G E M M I L L, Judge:
STATE v. PLEDGER

Decision of the Court

2

¶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). We address 

the first issue — alleged prosecutorial misconduct in the form of vouching 

— in this memorandum decision. We address the second issue — involving 

statutory interpretation — in a published opinion filed contemporaneously

with this decision. For the reasons explained below and in the 

accompanying opinion, we affirm Pledger's convictions and sentences. 

BACKGROUND

¶2 Pledger sought to purchase approximately 170 pounds of 

marijuana from “Ruiz.” Led by Pledger, Ruiz eventually drove a vehicle 

containing 170 pounds of marijuana to a residence. Ruiz parked the vehicle 

in the garage, and 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 
STATE v. PLEDGER

Decision of the Court

3

vest. Because he was in plain clothes, the officer hoped this would prevent 

Pledger and his accomplice from taking any action against them. 

¶5 After the officer got back in his vehicle, Pledger drove straight 

at him. As Pledger’s car approached, Pledger lowered his driver’s window, 

held a gun out the window, and pointed it at the officer. Although the 

officer feared that Pledger would shoot, Pledger drove past the officer’s 

vehicle without firing. Other officers eventually apprehended Pledger.

ALLEGED PROSECUTORIAL MISCONDUCT

¶6 Pledger contends the prosecutor engaged in misconduct 

during her rebuttal argument when she allegedly vouched for the 

credibility of Ruiz. 

¶7 In his closing argument, Pledger’s counsel argued, “Well, we 

know before [Ruiz] ever was brought into this that he lied to police twice. 

So we have a liar to start. So we have a liar coming into this courtroom 

when another man is on trial, and you're just supposed to accept what he 

says because he's in the courtroom? Think about that.” Pledger’s counsel

continued, “Basically, what I'm saying is that you need to disregard 

everything that he said, because that's justice. Think about that person that 

testified. Think about the inconsistencies he talked about, okay, and let me 

talk about those.” After counsel discussed alleged inconsistencies in Ruiz’s 

testimony, he argued, “Do we, as a society, as a criminal justice system, use 

that to convict somebody? Is that what we do?”

¶8 After he discussed more alleged inconsistencies in Ruiz's 

testimony, Pledger’s counsel further argued:

Let’s talk about the ridiculous things that [Ruiz] says that 

trump everything else that he says, where you cannot derive 

or find a fact from him. 

He goes on a monologue about how the police get no credit. 

They risk their lives every day. He talks about he’s found the 

love of his life and this is why he’s snitching out Jermaine 

Pledger, because he found the love of his life. 

And then he tries to cry. I didn’t see any tears. I saw him 

trying to cry. That’s ridiculous. Does that trump everything 

else that he talks about? This is serious. This is a serious 

situation, a man is on trial. Are we going to accept that? Can 

you accept that?
STATE v. PLEDGER

Decision of the Court

4

Can you accept his credibility, period? You can’t. He’s 

working for cash. He’s working for straight cash. He keeps 

working after this happens. He gets pulled over. He’s facing 

potential charges. And there’s motive, bias – you look at the 

credibility of witnesses instruction – all over the place.

What I submit to you is certain ridiculous things that he said 

in this trial that, using your common sense, you could almost 

laugh at. That trumps the rest of his testimony to the extent 

you need to reject it, because it’s not fair to try to derive facts 

from it otherwise. That’s not justice. 

¶9 In rebuttal, the prosecutor argued: 

[Ruiz] stood in this courtroom, right where I’m standing, held 

his hand up and swore to tell the truth. He was honest with 

you when he told you that he lied to the police when he was 

stopped with $30,000 in his car. He was honest with you in 

telling you that the lied to the police when he had 80 pounds 

of marijuana in his car. He was honest with you when he told 

you that at that point in his life he was working for a drug 

trafficking organization, and he was honest with you when he 

relayed the events that happened between January 26th, 2011 

and February 16th, 2011.1

¶10 Pledger argues this portion of the prosecutor’s rebuttal 

vouched for the credibility of Ruiz. “Two forms of impermissible 

prosecutorial vouching exist: (1) when the prosecutor places the prestige of 

the government behind its witness, and (2) where the prosecutor suggests 

that information not presented to the jury supports the witness’s testimony. 

In addition, a lawyer is prohibited from asserting personal knowledge of 

acts in issue before the tribunal unless he testifies as a witness.” State v. 

Bible, 175 Ariz. 549, 601, 858 P.2d 1152, 1204 (1993). Pledger argues the 

prosecutor’s rebuttal placed the prestige of the government behind Ruiz 

and constituted an expression of the prosecutor’s personal opinion that

Ruiz was truthful.

¶11 Pledger concedes, however, that he raised no objection below. 

A failure to object to alleged prosecutorial misconduct at the time of trial 

waives the issue absent fundamental error. State v. Wood, 180 Ariz. 53, 66, 

 

1 This is the only portion of the prosecutor’s argument Pledger identified 

as improper in his opening brief. 
STATE v. PLEDGER

Decision of the Court

5

881 P.2d 1158, 1171 (1994). “To establish fundamental error, [a defendant] 

must show that the error complained of goes to the foundation of his case, 

takes away a right that is essential to his defense, and is of such magnitude 

that he could not have received a fair trial.” State v. Henderson, 210 Ariz. 

561, 568, ¶ 24, 115 P.3d 601, 608 (2005). Even when a defendant has 

established fundamental error, the defendant must still demonstrate the 

error was prejudicial. Id. at ¶ 26. In the context of whether a prosecutor’s 

conduct amounts to fundamental error, we focus our inquiry on the 

probability the conduct influenced the jury and whether the conduct denied 

the defendant a fair trial. Wood, 180 Ariz. at 66, 881 P.2d at 1171. “The focus 

is on the fairness of the trial, not the culpability of the prosecutor.” Bible, 

175 Ariz. at 601, 858 P.2d at 1204.

¶12 We find no error, fundamental or otherwise. Prosecutors 

have wide latitude in presenting closing arguments. State v. Jones, 197 Ariz. 

290, 305, ¶37, 4 P.3d 345, 360 (2000). A prosecutor may characterize a 

witness as truthful when the argument is sufficiently linked to the evidence 

and the prosecutor does not place the prestige of the government behind 

the witness or suggest that information not before the jury supports the 

testimony. See State v. Corona, 188 Ariz. 85, 91, 932 P.2d 1356, 1362 (App. 

1997). 

¶13 Further, “[p]rosecutorial comments which are fair rebuttal to 

comments made initially by the defense are acceptable.” State v. Duzan, 176 

Ariz. 463, 468, 862 P.2d 223, 228 (App. 1993). Here, the prosecutor’s 

argument was a fair rebuttal to Pledger’s counsel’s attack on Ruiz’s 

credibility. The prosecutor’s argument addressed evidence introduced at 

trial that counsel referenced directly and indirectly in his attack on Ruiz:

how Ruiz admitted he lied to police when stopped with $30,000 in his car, 

how Ruiz admitted he lied to police when he was later stopped with a large 

quantity of marijuana in his car, and how Ruiz admitted he had worked for 

a drug organization. It was fair rebuttal for the prosecutor to argue that 

Ruiz’s honesty regarding this unfavorable evidence showed he was also 

honest when he testified about the events that led to the charges against 

Pledger. Further, the prosecutor did so in a manner that did not place the 

prestige of the government behind Ruiz, did not suggest that information 

not before the jury supported Ruiz’s testimony, and did not express the 

prosecutor’s personal opinion.

CONCLUSION

¶14 For the reasons stated in the accompanying opinion and 

herein, we find no error and we affirm Pledger’s convictions and sentences.
STATE v. PLEDGER

Decision of the Court

6