Opinion
2 CA-CR 2021-0094
07-29-2022
The State of Arizona, Appellee, v. Count Basey Mitchell Jr., Appellant.
Mark Brnovich, Arizona Attorney General Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals By Amy M. Thorson, Assistant Attorney General, Tucson Counsel for Appellee James Fullin, Pima County Legal Defender By Robb P. Holmes, Assistant Legal Defender, Tucson Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. CR20204742001 The Honorable James E. Marner, Judge
Mark Brnovich, Arizona Attorney General Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals By Amy M. Thorson, Assistant Attorney General, Tucson Counsel for Appellee
James Fullin, Pima County Legal Defender By Robb P. Holmes, Assistant Legal Defender, Tucson Counsel for Appellant 1
Presiding Judge Eckerstrom authored the decision of the Court, in which Chief Judge Vásquez and Judge Espinosa concurred.
MEMORANDUM DECISION
ECKERSTROM, PRESIDING JUDGE
¶1 Count Mitchell Jr. appeals from his conviction and sentence for weapons misconduct. He contends the state impermissibly shifted the burden of proof, entitling him to a new trial. We disagree and therefore affirm.
Factual and Procedural Background
¶2 In 2018, police responded to a 9-1-1 call regarding a red car. The first two officers to arrive found a matching car in the parking lot and approached. In it, they found Mitchell in the driver's seat and spoke to him. He appeared to be the only occupant of the car, and he seemed to be hiding something beneath the seat. Suddenly, Mitchell sped away, and the officers returned to their vehicles and pursued.
¶3 Another officer saw and followed the speeding red car. Shortly afterward, Mitchell crashed the car into a wall and fled on foot. The officer saw only one man exit the car and run away.
¶4 At the crash site, police found Mitchell's driver license in the empty red car, as well as a single shoe. They then found a matching shoe, a cell phone, and a bloody, loaded handgun in the parking lot through which Mitchell had been seen fleeing. Testing revealed that the blood on the gun contained DNA consistent with Mitchell's. It also revealed DNA on the hand grip and trigger from four people, one of whom was likely to be Mitchell.
¶5 Mitchell was not apprehended until more than two years later. He had been convicted of a previous felony and, on the date of the incident, his right to possess a firearm had not been restored. The state charged him with possession of a deadly weapon by a prohibited possessor.
¶6 Mitchell testified in his own defense at trial. He stated that two friends had been in the car with him in the parking lot. He claimed that, by the time the officers arrived, one friend had gotten out but the other 2 was still in the back seat and remained in the car as Mitchell drove away. He said he drove away abruptly when the officers were talking to him because he was scared and was driving fast to get home. According to Mitchell his friend told him to stop and, when he did not, hit him in the back of the head, drawing blood and causing him to swerve and crash into the wall. Mitchell claimed that, after the crash, both he and his friend had fled in the same direction before parting ways. He acknowledged that the shoe found in the parking lot was his, but he claimed he did not know anything about the gun that was found.
¶7 On cross-examination, the state asked Mitchell, without objection, "Did you get hold of your friends to come in and testify . . . ?" Mitchell said he had not done so. After some discussion regarding Mitchell's desire to keep his friends from getting into trouble, the prosecutor stated: "You are on trial for having a gun that you claim that you didn't have, that you didn't know about. So why don't you bring in the guy to say no, he didn't know about that?" Defense counsel objected, but the trial court overruled the objection. The prosecutor then argued: "It's because there were no guys with you. You were driving that car by yourself. You ran out with that gun in your hand and you dropped it, you ditched it and ran barefoot." Mitchell responded, "That's not correct."
¶8 The trial court instructed the jury that the state bore the burden of proof, that Mitchell was "not required to produce evidence of any kind," and that his "decision not to produce any evidence is not evidence of guilt." During rebuttal closing argument, the prosecutor also discussed the state's burden to produce evidence to prove its case. But, noting that "the defense doesn't have to present any evidence," the state argued that Mitchell could still have produced evidence if he so desired, including by subpoenaing witnesses. The state then argued in particular that, to back up his version of events, Mitchell could have subpoenaed the friends he said had been in the car with him on the night in question. Mitchell did not object to this argument.
¶9 At the conclusion of a three-day trial, the jury found Mitchell guilty as charged. The trial court sentenced him to eight years in prison, to be served consecutively to a sentence he was already serving in a separate matter. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A). 3
Discussion
¶10 On appeal, Mitchell contends the foregoing line of cross-examination and the state's related argument during summation "improperly shifted the burden of proof to Mitchell to establish that someone other than him possessed the firearm that was found at the scene of the accident." He argues this violated "the state's burden to prove its case beyond a reasonable doubt and his constitutional right to be presumed innocent and to have no burden to produce evidence of his innocence." He claims this error "requires reversal and remand for a new trial."
¶11 The state counters that Mitchell's claim must fail because the state's challenged question and argument were proper. We agree.
Because we conclude the state's questions were proper, we need not address the parties' arguments regarding the adequacy of Mitchell's objection at trial.
¶12 As our supreme court has explained, "A prosecutor may properly comment on a defendant's failure to present exculpatory evidence which would substantiate defendant's theory, provided the remark is not a comment on the defendant's silence." State v. Riley, 248 Ariz. 154, ¶ 53 (2020) (citing State ex rel. McDougall v. Corcoran, 153 Ariz. 157, 160 (1987)). That is precisely what occurred here. Mitchell chose to testify. The prosecutor's questions and comments on his failure to call his friends to support his theory of the case were thus "neither improper nor shift[ed] the burden of proof" to Mitchell because they could not possibly have been "intended to direct the jury's attention to the defendant's failure to testify." State v. Sarullo, 219 Ariz. 431, ¶ 24 (App. 2008); see also State v. Crain, 250 Ariz. 387, ¶¶ 39-41 (App. 2021) (no impermissible burden shifting when prosecutor asked jury to speculate why defendant "did not call his girlfriend as a witness," while also emphasizing that defendant "had no obligation to produce evidence or call witnesses" because it was state's burden to prove guilt beyond a reasonable doubt).
¶13 The few cases Mitchell cites on appeal do not support a contrary conclusion, as they involved wholly distinguishable situations or come from foreign jurisdictions whose opinions are not controlling on this court. See State v. Corona, 188 Ariz. 85, 89-90 (App. 1997) (improper for prosecutor to comment in summation on defendant's failure to call expert witness when no mention at trial of defendant consulting such a witness); see also Hansen v. Chon-Lopez, 252 Ariz. 250, ¶ 22 (App. 2021) (refusing to 4 credit reasoning of extra-jurisdictional cases when issue fully resolved by "Arizona's own jurisprudence").
¶14 It is a matter of "elemental fairness to allow the State to comment upon the defense's failure to adduce potentially exculpatory evidence to which defendant had access when defendant is attacking the accuracy of the State's evidence." State ex rel. McDougall, 153 Ariz. at 160. And even assuming, arguendo, that the prosecutor's questions or comments may have implied that Mitchell had the burden of proof (despite the state's repeated comments to the contrary), "the trial court's cautionary instruction to the jury was sufficient to cure any harm." Id.
Disposition
¶15 We affirm Mitchell's conviction and sentence. 5