Opinion
No. 1 CA-CR 13-0245
03-04-2014
STATE OF ARIZONA, Appellee, v. JOHN FRANK HEINKEL, III, Appellant.
Napper Law Firm, Prescott By John Napper Counsel for Appellant Arizona Attorney General, Phoenix By Joseph T. Maziarz Counsel for Appellee
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Yavapai County
No. P1300CR201200664
The Honorable Tina R. Ainley, Judge
AFFIRMED
COUNSEL
Napper Law Firm, Prescott
By John Napper
Counsel for Appellant
Arizona Attorney General, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined. THOMPSON, Judge:
¶1 John Frank Heinkel, III, (defendant) was convicted by a jury of two counts of aggravated assault after he shot one of his roommates and threatened a neighbor with a gun after a house party. Defendant appeals his convictions and sentences, asserting he is entitled to a new trial on the grounds that the prosecutor improperly engaged in unconstitutional vouching during closing arguments to the jury. We affirm his convictions and sentences.
¶2 On June 18, 2012, defendant, both his roommates (one male, one female), and a neighbor started drinking beer and vodka around noon. Around 10 p.m., after "[e]veryone was quite intoxicated," defendant and the male roommate decided to go to their respective bedrooms to sleep. The female roommate and the neighbor went into her room to watch the news. They were awoken later by defendant intensely banging on her bedroom door. When she opened the door, defendant had a revolver in his hand, which he pointed at her, and said that he wanted the neighbor to leave. The two men exchanged words and the gun discharged hitting her in the arm. The neighbor took the gun from defendant and called police. Defendant was charged on three counts of aggravated assault as to his female roommate and the neighbor.
Defendant's blood alcohol content approximately three hours after the shooting was .261.
The third count of aggravated assault, related to touching the neighbor with the gun, was dismissed at trial pursuant to Rule 20.
¶3 At trial, both roommates, the neighbor and the defendant all testified. Defendant admitted to coming to the door of the female roommate's room with a gun but asserted that he had gone there to break up an jealous argument between the other two men. Defendant admitted to shooting her accidentally when the gun "went off." During cross-examination defendant admitted he had told the police that he had fired off a warning shot "to get everybody's attention."
Defendant was the only person who offered a version of incident that included defendant breaking up a dispute.
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¶4 During closing argument the prosecutor made five statements to the effect of "what I think the facts show" and "what I believe, in addition to those undisputed facts, there are a number of facts that have been established by competent and credible evidence." In two of the five cases, defendant objected at trial with the trial court sustaining one objection stating "I think it's just habit." Defendant later made a motion for a mistrial related to statements made by the prosecutor during closing argument. That motion was denied. The jury was given the standard instruction that the lawyers' statements during closing argument were not evidence.
¶5 Defendant was convicted of two counts of aggravated assault, both dangerous offenses. Defendant was sentenced to the presumptive, concurrent terms of 6.5 years as to each and given 286 days presentence incarceration credit. He timely appealed.
¶6 We review the grant or denial of a mistrial under an abuse of discretion standard. State v. Adamson, 136 Ariz. 250, 263, 665 P.2d 972, 985 (1983). We give trial court deference because it is in the best position to determine whether the asserted error actually affected the trial. State v. Lamar, 205 Ariz. 431, 439, ¶40, 72 P.3d 1264 (2003).
¶7 Both prosecutors and defense counsel are given wide latitude in the arguments to the jury. State v. Taylor, 112 Ariz. 68, 84, 537 P.2d 938, 954 (1975). On an allegation of prosecutorial misconduct, therefore, the defendant must have been denied a fair trial. See State v. Hallman, 137 Ariz. 31, 37, 668 P.2d 874, 880 (1983) ("Misconduct alone will not cause a reversal, but only where the defendant has been denied a fair trial as a result of the actions of counsel.") Thus, even if we were persuaded that defendant had shown improper vouching here, the prosecutor's comments would be subject to a harmless error analysis. See State v. VanWinkle, 229 Ariz. 233, 237, ¶ 16, 273 P.3d 1148, 1152 (2012) (holding prosecutor's improper comment that VanWinkle's silence was a tacit admission of guilt was, nevertheless, harmless error). Error is harmless "if the state, in light of all of the evidence, can establish beyond a reasonable doubt that the error did not contribute to or affect the verdict." State v. Valverde, 220 Ariz. 582, 585 ¶ 11, 208 P.3d 233, 236 (2009).
¶8 Given the evidence, including defendant's own incriminating testimony, we cannot find the trial court abused its discretion in denying a mistrial. Defendant's convictions and sentences are affirmed.