Opinion
No. 1 CA-CR 13-0176
04-17-2014
STATE OF ARIZONA, Appellee, v. MARK ALAN BENSON, Appellant.
Arizona Attorney General's Office, Phoenix By Adele Ponce Counsel for Appellee Maricopa County Office of the Legal Advocate, Phoenix By Colin F. Stearns Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.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.
Appeal from the Superior Court in Maricopa County
No. CR2009-137548-001
The Honorable Roger E. Brodman, Judge
AFFIRMED AS MODIFIED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Adele Ponce
Counsel for Appellee
Maricopa County Office of the Legal Advocate, Phoenix
By Colin F. Stearns
Counsel for Appellant
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Jon W. Thompson joined.
SWANN, Judge:
¶1 Mark Alan Benson appeals his conviction and sentence for second-degree murder. For the reasons that follow, we affirm the conviction and sentence, but vacate that portion of the sentencing order requiring Benson to pay for DNA testing.
¶2 Benson was convicted of second-degree murder for shooting his girlfriend's 24-year-old son point-blank in the left side of his face. The victim's mother had ordered Benson to move out of the house they shared after a heated argument and her discovery upon awakening that Benson had used a garden hose to flood the house. While she and her daughter were in the house retrieving Benson's clothes later that day, she heard a loud bang in the garage, where her son was standing watch over Benson. When she and her daughter walked back toward the garage, they saw Benson's shotgun and hunting vest on the floor in a hallway leading from the garage. On opening the door to the garage, they saw the victim dead in a pool of blood, and Benson rapidly exiting the garage in his van.
¶3 Benson testified that he had drunk heavily the day before and suffered from alcoholic blackouts, and that he could not recall details of the shooting or the events leading up to it. After reviewing the videotape of his interrogation, however, he remembered telling police that he thought the victim had grabbed the shotgun and it went off. His counsel argued in closing that the shotgun accidentally discharged when the victim grabbed the barrel.
¶4 The jury convicted Benson of the charged offense, and the court imposed an aggravated sentence of 20 years in prison. Benson timely appeals.
¶5 Benson contends that the prosecutor repeatedly made improper arguments in closing that denied him a fair trial, requiring reversal. As Benson acknowledges, he failed to object to any of the claimed misconduct at trial, and accordingly bears the burden of proving that the prosecutor engaged in misconduct and that the misconduct
caused him prejudice by depriving him of a fair trial. State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 19-20, 115 P.3d 601, 607-08 (2005).
¶6 A prosecutor is not permitted to make arguments that "appeal to the fears or passions of the jury" by playing on their "sympathy for the victims and fears of the defendant." State v. Morris, 215 Ariz. 324, 337, ¶ 58, 160 P.3d 203, 216 (2007). Prosecutors, however, "have wide latitude in presenting their closing arguments to the jury." State v. Jones, 197 Ariz. 290, 305, ¶ 37, 4 P.3d 345, 360 (2000). To determine whether a prosecutor's remarks are improper, we consider whether the remarks called to the attention of jurors matters they would not be justified in considering, and the probability, under the circumstances, that the jurors were influenced by the remarks. Id. (citation omitted). "To prevail 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." Morris, 215 Ariz. at 335, ¶ 46, 160 P.3d at 214 (citation omitted) (internal quotation marks omitted).
¶7 Benson argues that the prosecutor appealed to the passions and fears of the jury without support in the evidence by arguing the absence of any "legitimate or benign purpose," or "non-murderous, non-malicious reason," for Benson to approach the house after donning his hunting vest and loading his shotgun, to engage in the lethal encounter in the garage, and then to proceed to enter the house still armed, as evidenced by the vest and shotgun he left behind. We find nothing improper in the prosecutor's argument. The prosecutor's argument represented a reasonable inference from the evidence, and was fair rebuttal to defense counsel's argument that the shooting was simply a tragic accident.
¶8 Benson also argues that the prosecutor improperly vouched for the credibility of the state's expert witness on blood spatter by arguing that defendant had hired "a lot of experts," and by opining that "it would have been easy to hire an expert to refute" the state's blood spatter expert, but no such expert had testified at trial. It is impermissible for a prosecutor to "suggest[ ] that information not presented to the jury supports the witness's testimony." State v. King, 180 Ariz. 268, 276-77, 883 P.2d 1024, 1032-33 (1994) (citation omitted). It is well settled, however, that
[w]hen a prosecutor comments on a defendant's failure to present evidence to support his or her theory of the case, it is neither improper nor shifts the burden of proof to the
defendant so long as such comments are not intended to direct the jury's attention to the defendant's failure to testify.
State v. Sarullo, 219 Ariz. 431, 437, ¶ 24, 199 P.3d 686, 692 (App. 2008) (holding that prosecutor did not shift the burden of proof by arguing that defendant had failed to call expert witnesses to support his theory). Here, the prosecutor's argument was fair rebuttal to defense counsel's argument that the jury should disregard the conclusions of the state's expert witness on blood spatter because he had conducted a sloppy investigation, and was a permissible comment on defendant's failure to present an expert to contradict the state's expert. See id.
¶9 Benson further argues that the prosecutor improperly "impugned the integrity [of appellant's gun expert] by arguing that he changed the facts of this case to fit his conclusion," and that "[i]t is up to you whether or not to rely on the doctor whose job and purpose it is to do autopsies, or a gun expert who is getting paid 250.00 an hour for his time by the defense to hang out here." Although it is improper for the prosecutor to make groundless attacks on an expert's ethics, it is not improper to attack the expert's theories or credibility. See State v. Hughes, 193 Ariz. 72, 86, 1 59, 969 P.2d 1184, 1198 (1998) ("It is improper for counsel to imply unethical conduct on the part of an expert witness without having evidence to support the accusation."); United States v. Sayetsitty, 107 F.3d 1405, 1409 (9th Cir. 1997) ("Criticism of defense theories and tactics is a proper subject of closing argument."). The prosecutor's attack on the gun expert's theories and credentials was for the most part permissible because it was reasonably supported by the evidence. The gun expert acknowledged that he had been mistaken or was at odds with other experts on some of the physical evidence on which he relied for his opinion. He also acknowledged that if the medical examiner's report was correct, his conclusion about the trajectory of the shot (on which he relied for his theory of how the shotgun might have accidentally discharged) was wrong. It was not impermissible on this record for the prosecutor to argue that this expert changed the facts to fit his conclusions. See State v. Velazquez, 216 Ariz. 300, 312, ¶¶ 55-56, 166 P.3d 91, 103 (2007) (prosecutor did not commit misconduct by highlighting fact that expert changed diagnosis after viewing report prepared by state's expert); State v. Hull, 578 P.2d 434, 437 (Or. Ct. App. 1978) (counsel "may seek to demonstrate to the jury that a change in the facts the expert assumes to be true may necessitate a modification of the opinion or dilute the value of the opinion in the minds of the jury."). However, the prosecutor's reference to the gun expert being paid $250 an hour by the defense "to hang out here" was arguably improper as lacking
support in the record. But the court did instruct the jury, as it normally does, that counsels' arguments were not evidence, and the jury is presumed to have followed that instruction. See State v. LeBlanc, 186 Ariz. 437, 439, 924 P.2d 441, 443 (1996). Under these circumstances, we are not persuaded that the latter isolated, arguably improper, reference prejudiced Benson.
¶10 Lastly, Benson argues that the prosecutor improperly gave his personal opinion on Benson's guilt when he told the jury, "Ladies and gentlemen, the defendant is guilty of second degree murder." It is improper for an attorney to express his opinion on defendant's guilt in closing argument. State v. Van Den Berg, 164 Ariz. 192, 196, 791 P.2d 1075, 1079 (App. 1990). In context of the prosecutor's full closing argument, however, it is clear that the statement was not an expression of his personal belief, but a conclusion demonstrated by the evidence that did not constitute misconduct.
¶11 Benson contends, and the state concedes, that the court erred in ordering Benson to pay for DNA testing. We agree. We recently held that A.R.S. § 13-610 does not authorize such an order. State v. Reyes, 232 Ariz. 468, 472, ¶ 14, 307 P.3d 35, 39 (App. 2013).
¶12 For the foregoing reasons, we affirm Benson's conviction and sentence, but vacate the order requiring Benson to pay for his DNA testing.