State v. Summers

NOTICE: NOT FOR PUBLICATION.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.
RONALD JOEL SUMMERS, Appellant.
No. 1 CA-CR 13-0572
FILED 07-08-2014
Appeal from the Superior Court in Maricopa County
CR2011-155267-001
The Honorable Dawn M. Bergin, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Stephen J. Whelihan
Counsel for Appellant
STATE v. SUMMERS
Decision of the Court
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Margaret H. Downie joined.
B R O W N, Judge:
¶1 Ronald Joel Summers appeals his conviction and sentence
for aggravated assault. Counsel for Summers filed a brief in accordance
with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz.
297, 451 P.2d 878 (1969), advising that after searching the record on
appeal, he was unable to find any arguable grounds for reversal, although
he does direct us to three statements the prosecutor made during closing
argument. Summers was granted the opportunity to file a supplemental
brief in propria persona, but he has not done so.
¶2 Our obligation is to review the entire record for reversible
error. State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). We
view the facts in the light most favorable to sustaining the conviction and
resolve all reasonable inferences against Summers. State v. Guerra, 161
Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). Finding no reversible error, we
affirm.
¶3 In November 2011, the State charged Summers with one
count of aggravated assault, a class 3 dangerous felony, in violation of
Arizona Revised Statutes section 13-1204 and -704. The following
evidence was introduced at trial.
¶4 In the late evening of October 25, 2011, J.D. returned home to
his second-floor apartment. When J.D. opened the front door, his
girlfriend, C.B., began yelling at him for returning home late. J.D. and
C.B. then commenced a loud, profanity-laced argument on the outside
patio adjacent to their apartment. As their argument progressed,
Summers, a resident of the apartment directly below, walked midway up
the flight of stairs leading to the second-floor and shouted for J.D. and
C.B. to “take [their fight] somewhere else.” J.D. and C.B. responded to
Summers angrily and he proceeded to the top of the stairs. C.B. moved
between J.D. and Summers, hoping to avert a physical altercation.
Notwithstanding C.B.’s efforts, J.D. punched and kicked Summers.
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STATE v. SUMMERS
Decision of the Court
¶5 Summers then raced down the stairs to his apartment and
quickly returned. C.B. saw Summers holding a knife and yelled “he has a
knife, he has a knife.” J.D. punched Summers again and then Summers
struck J.D. and ran back to his apartment. Initially, J.D. believed Summers
had punched him in the arm. He quickly discovered, however, he had
been stabbed and was bleeding profusely from a large “hole” in his arm.
A neighbor contacted the police and J.D.’s injury was treated at the
hospital.
¶6 Following a three-day trial, a jury convicted Summers as
charged. At the sentencing hearing, the trial court found that Summers
had “at least 4 prior felony convictions” and sentenced him to a minimum
ten-year term of imprisonment with 177 days presentence incarceration
credit. Summers timely appealed.
¶7 Defense counsel’s Anders brief points to three statements by
the prosecutor during closing argument that “insinuated” Summers has
“a violent character.” Summers did not object to any alleged misconduct,
and we therefore review only for fundamental error. See State v.
Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). “To prevail
under this standard of review, a defendant must establish both that
fundamental error exists and that the error in his case caused him
prejudice.” Id. ¶ 20. On a claim of prosecutorial misconduct, “a
defendant must demonstrate that the prosecutor’s misconduct so infected
the trial with unfairness as to make the resulting conviction a denial of
due process.” State v. Harrod, 219 Ariz. 268, 278, ¶ 35, 183 P.3d 519, 529
(2008). Given the wide latitude prosecutors have in presenting their
closing arguments to the jury, see State v. Corner, 165 Ariz. 413, 426, 799
P.2d 333, 346 (1990), “[w]e will not reverse a conviction because of a
prosecutor’s improper comments during closing argument unless there is
a reasonable likelihood that the misconduct could have affected the jury’s
verdict.” State v. Edmisten, 220 Ariz. 517, 524, ¶ 23, 207 P.3d 770, 777 (App.
2009) (internal citations omitted).
¶8 Our review of the record does not reveal any prosecutorial
misconduct. First, the prosecutor commenced his closing argument by
stating: “This is a case about this defendant’s rage and the way that he
handles situations when he gets angry, when he feels that he’s been
disrespected, or someone isn’t scared of him. That’s what this case is
about.” Although the prosecutor’s statement may be interpreted more
broadly, the prosecutor did not argue that this particular incident was part
of a larger pattern of violent behavior and, in context we conclude the
argument was within the wide latitude afforded prosecutors. Second, in
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STATE v. SUMMERS
Decision of the Court
describing the knives found in Summer’s kitchen by the officer who
searched his apartment, the prosecutor stated some drawers had “a couple
folding tactical knives.” During that officer’s trial testimony, the
prosecutor asked whether a kitchen drawer had “tactical-type folding
knives” and the officer responded: “I wouldn’t say tactical, just like
folding knives.” Although the prosecutor mischaracterized the knives
found in the drawer, he correctly noted that the knife C.B. saw Summers
holding before he stabbed J.D. was a basic “kitchen knife” and accurately
stated that the officer found numerous “kitchen knives” in Summer’s
apartment. Finally, the prosecutor stated that Summers “believes that he
has the right to yell at people, and if somebody disrespects him, he can
escalate that situation tenfold. He can use a knife. He can go confront
him at his house using that knife . . . [t]hat’s what he believes. That’s not
the law. That’s not how law-abiding citizens . . . are allowed to act or
people should have that expectation of acting. That’s illegal.” We
conclude this argument fell within the wide latitude afforded prosecutors
during closing argument.
¶9 We have searched the entire record for reversible error and
find none. All of the proceedings were conducted in accordance with the
Arizona Rules of Criminal Procedure. The record shows Summers was
present and represented by counsel at all pertinent stages of the
proceedings, was afforded the opportunity to speak before sentencing,
and the sentence imposed was within statutory limits. Accordingly, we
affirm Summers’ conviction and sentence.
¶10 Upon the filing of this decision, counsel shall inform
Summers of the status of the appeal and his options. Defense counsel has
no further obligations unless, upon review, counsel finds an issue
appropriate for submission to the Arizona Supreme Court by petition for
review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57
(1984). Summers shall have thirty days from the date of this decision to
proceed, if he so desires, with a pro per motion for reconsideration or
petition for review.
:gsh
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