Opinion
1 CA-CR 11-0084
01-10-2012
STATE OF ARIZONA, Appellee, v. RICKY LEE GINGERICH, Appellant.
Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Division and Angela Corinne Kebric, Assistant Attorney General Attorneys for Appellee Michael A. Breeze, Yuma County Public Defender By Edward F. McGee, Deputy Public Defender Attorneys for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule 111, Rules of the Arizona Supreme Court)
Appeal from the Superior Court in Yuma County
Cause No. S1400CR201000133
The Honorable Andrew W. Gould, Judge
AFFIRMED
Thomas C. Horne, Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Division
and Angela Corinne Kebric, Assistant Attorney General
Attorneys for Appellee
Phoenix
Michael A. Breeze, Yuma County Public Defender
By Edward F. McGee, Deputy Public Defender
Attorneys for Appellant
Yuma NORRIS , Judge
¶1 Ricky Lee Gingerich timely appeals from his conviction and sentence for burglary in the second degree, a class three felony. On appeal, Gingerich argues the superior court abused its discretion by denying his motion for a mistrial after he appeared before the jury during voir dire wearing visible restraints. We disagree, and therefore affirm his conviction and sentence.
FACTS AND PROCEDURAL BACKGROUND
We view the facts in the light most favorable to sustaining the jury's verdict and resolve all reasonable inferences against Gingerich. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).
¶2 Shortly after midnight on the morning of December 27, 2008, Gingerich dressed in camouflage clothing and with an accomplice entered the victim's apartment. The victim later testified that while the accomplice remained at the victim's bedroom doorway, Gingerich entered the darkened bedroom, and when the victim awoke and discovered the intruders, one of them held a finger to his mouth and said the word "police." After the victim used his cell phone to illuminate the room and discovered Gingerich was not a police officer -- he had neither a police badge nor a gun -- Gingerich attacked him by throwing a blanket over him and trying to hit him, while the other intruder ran away. The victim fought back and, with the help of other people living in the apartment, subdued Gingerich until the police arrived and arrested him. At trial, the victim testified Gingerich did not have permission to be in his apartment and he had never seen him before.
¶3 During jury voir dire, two jurors saw that Gingerich was wearing visible restraints. One juror, when asked if he could be fair and unbiased, responded "[t]he only reason I'd be biased, because I noticed that the accused has an ankle bracelet, and I was wondering if it was from this or previous." The superior court immediately excused the juror for cause. Later, a second juror remarked "I don't know if my opinion matters right now, but in my head I feel the defendant is guilty. I don't know why, but I feel bad about it, seeing his ankle bracelet and everything." Again, the superior court immediately excused the juror for cause, and told the jury,
Ladies and Gentlemen, a couple of jurors have mentioned something about ankle bracelet. I am not even sure what that is about. But you should disregard any of those comments. That has nothing to do with this case. It is not an indication of anything, even if it were so. Does anyone feel like those sort of random comments would have affected you or biased you in any way? If that's the case, you need to let me know. I don't see any hands.
¶4 The next day, Gingerich moved for a mistrial, arguing the jury panel had been prejudiced by seeing the restraint on his leg: "what it might bring up in the other jurors' [minds is] that he is dangerous, we have an ankle bracelet on him." The superior court denied his motion, explaining it had taken corrective action and "any prejudice right now is speculative. . . . [There is no evidence before the court] that any prospective jurors have actually been prejudiced by those comments of those other jurors." The jury found Gingerich guilty of burglary in the second degree and criminal trespass in the first degree. The superior court later vacated the criminal trespass conviction, finding it was a lesser included offense of the burglary conviction.
Defense counsel also suggested the "jail" required "in-custody defendants who are on trial" to wear restraints as a matter of policy. As our supreme court explained in State v. Gomez, "Deck prohibits the routine shackling of defendants. A decision based solely on a general jail policy of shackling defendants . . . is clearly not the kind of 'case specific' determination of 'particular concerns' that Deck requires." 211 Ariz. 494, 504, ¶ 49, 123 P.3d 1131, 1141 (2005).
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DISCUSSION
¶5 Gingerich argues the superior court committed reversible error when it denied his mistrial motion because he had appeared before the prospective jury panel in visible restraints in violation of his Fourteenth Amendment due process rights. Gingerich did not, however, object to wearing restraints -- and the record contains no evidence he remained in visible restraints after the parties selected the jury. Nevertheless, in arguing on appeal the court should have granted a mistrial, he relies on case law that recognizes criminal defendants should not routinely be required to wear physical restraints visible to the jury unless the court has made an individualized inquiry into the need for such restraints; this is because visible restraints are "inherently prejudicial." Deck v. Missouri, 544 U.S. 622, 635, 125 S. Ct. 2007, 2015, 161 L. Ed. 2d 953 (2005) (quoting Holbrook v. Flynn, 475 U.S. 560, 568, 106 S. Ct. 1340, 1345, 89 L. Ed. 2d 525 (1986)); State v. Gomez, 211 Ariz. 494, 504, ¶ 51, 123 P.3d 1131, 1141 (2005).
¶6 Normally, we review the superior court's denial of a mistrial motion for an abuse of discretion. State v. Jones, 197 Ariz. 290, 304, ¶ 32, 4 P.3d 345, 359 (2000). But, even if we view Gingerich's argument on appeal through the lens of "shackling error," as he essentially asks us to do, and assume he properly preserved a "shackling error" objection, we nevertheless conclude the "error" was harmless as the State has met its burden of establishing beyond a reasonable doubt the "error" did not contribute to or affect the verdict. State v. Valverde, 220 Ariz. 582, 585, ¶ 11, 208 P.3d 233, 236 (2009); see also State v. Anthony, 218 Ariz. 439, 446, ¶ 41, 189 P.3d 366, 373 (2008) (reviewing court must determine whether State has demonstrated jury verdict was "surely unattributable" to the error).
¶7 Under Arizona Revised Statutes section 13-1507(A) (2008), "[a] person commits burglary in the second degree by entering or remaining unlawfully in or on a residential structure with the intent to commit any theft or any felony therein." The superior court's final instructions to the jury narrowed this definition to include only "the intent to commit any theft or aggravated assault therein," because "[t]he only theories offered by the State is it's a theft or aggravated assault."
¶8 Here, although the State did not present any direct evidence of entry with intent to commit theft, it presented substantial uncontroverted circumstantial evidence Gingerich entered the apartment and the victim's room with such intent. See State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993) (internal citation omitted) ("we consider the error in light of all of the evidence"). As discussed, Gingerich, a man the victim did not know, dressed in camouflage clothing, and with an accomplice, entered the victim's apartment and his room without permission in the middle of night. The victim testified that after he woke up and discovered the two men, one of the intruders whispered the word "police" (with the logical implication he was attempting to avoid a confrontation with the victim) and when that did not work, Gingerich attacked him while the accomplice ran. See State v. Wilson, 120 Ariz. 72, 74, 584 P.2d 53, 55 (App. 1978) ("Obviously there are times when intent may be inferred from conduct where it is plainly indicated as a matter of logical probability."); State v. Rood, 11 Ariz. App. 102, 103, 462 P.2d 399, 400 (App. 1969) (proof of intent for burglary can be shown by circumstantial evidence such as subsequent criminal act); see also State v. Talley, 112 Ariz. 268, 269, 540 P.2d 1249, 1250 (1975) (unexplained activity and "presence at another's residence, in light of the hour at which it occurred," and fact defendant attempted to hide, lends support to inference of felonious intent).
¶9 Moreover, the State presented overwhelming circumstantial evidence Gingerich entered the victim's room with the intent to commit aggravated assault. As discussed, the victim testified Gingerich attacked him after he discovered Gingerich was in his room and was not a police officer. As the State argued in closing, this evidence reflected Gingerich "went to that apartment to take from [the victim] and was willing to hurt [the victim] in order to take from him."
¶10 In addition, the record demonstrates the jury thoughtfully considered the State's burden to prove intent during their deliberations. After deliberating for roughly four-and-a-half hours, the jury notified the superior court it had reached a verdict on the criminal trespass count but was at an impasse on the burglary count. After the court read an impasse instruction and the jury resumed deliberations, the jury sent a note with a question to the court, asking "we feel our biggest sticking point has been 'proof' of intent . . . we would like to know how intent is proven and what part does circumsta[n]tial evidence play in the burden of proof? . . . is the state required to prove intent?" The superior court answered the jury that the State was required to prove intent and reread the instructions containing the elements of the charged offenses and the elements of intent. The jury then resumed their deliberations and returned with their guilty verdicts roughly 15 minutes later. The length of their deliberations and the substance of their questions reflect the jury focused on the pivotal issue it needed to decide to convict on the burglary charge.
¶11 Thus, in light of all the evidence and the circumstances of this case, we conclude the jury's verdict on the burglary charge was "surely unattributable" to the "shackling error." Therefore, the superior court's denial of the mistrial motion constituted harmless error.
CONCLUSION
¶12 For the foregoing reasons, we affirm Gingerich's conviction and sentence.
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PATRICIA K. NORRIS, Judge
CONCURRING: _______________________
MICHAEL J. BROWN, Presiding Judge
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PHILIP HALL, Judge