State v. Miller ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
DEONTE STEPHON MILLER, Appellant.
No. 1 CA-CR 13-0590
FILED 08-26-2014
Appeal from the Superior Court in Maricopa County
No. CR2012-048372-001
The Honorable Jonathan H. Schwartz, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Paul J. Prato
Counsel for Appellant
STATE v. MILLER
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Kenton D. Jones and Judge Samuel A. Thumma joined.
W I N T H R O P, Presiding Judge:
¶1 Deonte Stephon Miller appeals his convictions and sentences
for burglary in the second degree, a class three felony, and trafficking in
stolen property in the first degree, a class two felony.1 For the following
reasons, we affirm.
¶2 Miller argues the prosecutor committed misconduct by
“impugning the integrity of [Miller’s] counsel” in a single instance during
closing argument without objection. At trial, Miller’s girlfriend testified as
an adverse witness during the prosecution’s case-in-chief about her
conversation with a defense investigator:
Q: [D]id you tell me that the defense attorney sent an
investigator to talk with you?
A: Yeah. . . .
Q: And didn’t you tell me the investigator also told you to
come in and help?
A: I told you that they came and talked with me, meaning
that they were all sad because I told them what they know
and it seemed like it was not good enough. And he’s like,
well, I guess [Miller is] going to have to suffer. . . .
Q: So he was talking you into coming and telling more than
you knew?
A: Yes.
1 Miller filed a timely notice of appeal. We have jurisdiction pursuant
to the Arizona Constitution, Article 6, Section 9, and Arizona Revised
Statutes sections 12-120.21(A)(1) (2003), 13-4031 (2010), and 13-4033 (2010).
2
STATE v. MILLER
Decision of the Court
The jury also heard evidence that others (including Miller himself) had
attempted to influence what she said. During closing argument, the
prosecutor incorrectly stated, “[Miller’s girlfriend] is getting contacted by
the defense attorney in jail who tells her: That’s not enough; you need to say
more, after she told him: That’s all I know. All of the pressure on [Miller’s
girlfriend] . . . to tell a story.” (Emphasis added.)
¶3 Because Miller failed to object to this alleged error at trial, we
review for fundamental error. State v. Roque, 213 Ariz. 193, 228, ¶ 154, 141
P.3d 368, 403 (2006) (citation omitted). Under this review, Miller must
demonstrate: (1) an error occurred, (2) the error was fundamental, and (3)
the error caused him prejudice. State v. Henderson, 210 Ariz. 561, 567-68,
¶¶ 19-26, 115 P.3d 601, 607-08 (2005). As applied, among other things,
Miller must show: “(1) misconduct is indeed present; and (2) a reasonable
likelihood exists that the misconduct could have affected the jury’s verdict,
thereby denying defendant a fair trial.” State v. Anderson, 210 Ariz. 327, 340,
¶ 45, 111 P.3d 369, 382 (2005) (citation omitted). Misconduct includes a
prosecutor “impugn[ing] the integrity or honesty of opposing counsel.”
State v. Hughes, 193 Ariz. 72, 86, ¶ 59, 969 P.2d 1184, 1198 (1998).
¶4 Assuming without deciding the prosecutor’s incorrect
statement constituted misconduct, we cannot say this isolated instance of
alleged misconduct denied Miller a fair trial. Miller has not
“demonstrate[d] that the prosecutor’s misconduct ‘so infected the trial with
unfairness as to make the resulting conviction a denial of due process.’” Id.
at 79, ¶ 26, 969 P.2d at 1191 (quoting Donnelly v. DeChristoforo, 416 U.S. 637,
643 (1974)). As a result, we affirm Miller’s convictions and sentences.
:gsh
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