Opinion
No. 2 CA-CR 2019-0221
02-09-2021
THE STATE OF ARIZONA, Appellee, v. ELVIS DALE KINNEY, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee Emily Danies, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Gila County
No. S0400CR201800167
The Honorable Bryan B. Chambers, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals
By Diane Leigh Hunt, Assistant Attorney General, Tucson
Counsel for Appellee Emily Danies, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Espinosa and Vice Chief Judge Staring concurred. ECKERSTROM, Judge:
¶1 Elvis Kinney appeals from his convictions and sentences for third-degree burglary. He argues his constitutional protection against double jeopardy was violated because the state failed to demonstrate manifest necessity before the trial court declared an earlier mistrial over his objection. He also argues the trial court erred in not declaring a mistrial after the prosecutor engaged in questioning that Kinney characterizes as misconduct. For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to sustaining the jury's verdicts. State v. O'Laughlin, 239 Ariz. 398, ¶ 2 (App. 2016). In February 2018, surveillance footage showed Kinney breaking into the fenced lot of a towing company, entering a vehicle located there, and removing various tools from the premises. He was then videotaped breaking into a nearby truck, from which he took a number of furniture dollies. A grand jury charged Kinney with two counts of third-degree burglary.
¶3 Kinney's first two trials, in January 2019 and then in May 2019, were declared mistrials. As relevant here, the trial court declared the May 2019 trial a mistrial because the empaneled jury contained fewer than twelve members, the minimum required for a defendant who, like Kinney, could potentially be sentenced to a term of imprisonment of thirty years or more. Kinney's trial was rescheduled for August 2019, and a twelve-member jury found him guilty as charged. The trial court sentenced him to mitigated, concurrent, nine-year prison terms. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A), and for the following reasons, we affirm.
Discussion
¶4 Kinney first argues the August 2019 trial violated his constitutional protection against double jeopardy because the state failed to demonstrate manifest necessity before the trial court declared a mistrial over his objection during the May 2019 trial. We review a trial court's rulings on a motion for mistrial and on the existence of manifest necessity for abuse of discretion. See McLaughlin v. Fahringer, 150 Ariz. 274, 277 (1986). "A trial court has acted within its sound discretion in rejecting possible alternatives and in granting a mistrial, if reasonable judges could differ about the proper disposition." State v. Givens, 161 Ariz. 278, 281 (App. 1989).
¶5 The Double Jeopardy Clauses of both the United States and the Arizona constitutions protect a defendant from repeated prosecutions for the same offense. U.S. Const. amend. V; Ariz. Const. art. II, § 10. However, double jeopardy is not implicated if "there is a manifest necessity for the mistrial." McLaughlin, 150 Ariz. at 277. "'Manifest necessity' can arise in many different situations and the courts have not attempted to adopt a single, all encompassing definition." State v. Aguilar, 217 Ariz. 235, ¶ 14 (App. 2007). Generally, we will affirm a trial court's finding of manifest necessity when "the ends of substantial justice could not be obtained without discontinuing the trial." Givens, 161 Ariz. at 282.
¶6 Before the jury was selected for the May 2019 trial, Kinney's counsel told the trial court an eight-person jury would be necessary. The state did not comment on this erroneous statement. After the eight-member jury was empaneled, the state brought the error to the court's attention. Kinney's counsel then suggested that either the state waive its right to pursue a sentence of thirty years or more or the court declare a mistrial. The state declined to make any concession that would have lowered Kinney's potential imprisonment below the thirty-year threshold. The court then declared a mistrial over Kinney's "factual objections."
The parties do not dispute that jeopardy attached once the jury was empaneled in the May 2019 trial. See McLaughlin, 150 Ariz. at 277 ("Jeopardy attaches as soon as the jury is impaneled and sworn.").
The parties disagree as to whether Kinney adequately and timely objected to the mistrial. Because we find no error, we need not decide whether harmless or fundamental error review applies here. And, because we alternatively find that Kinney arguably invited the error when requesting an eight-person jury, we would "not consider whether the alleged error is fundamental" in any event. State v. Logan, 200 Ariz. 564, ¶ 9 (2001).
¶7 Several days later, Kinney filed a motion to dismiss all charges against him, arguing, as he does on appeal, that the state had failed to demonstrate manifest necessity, such that a new trial would violate his protection against double jeopardy. The court denied the motion, reasoning it had no authority to force the state to waive the maximum possible sentence and that failure to declare a mistrial would have resulted in a reversal of the convictions on appeal.
¶8 We agree with the trial court that, under these circumstances, a manifest necessity existed for the declaration of a mistrial. Both the Arizona constitution and Arizona statute provide that when criminal defendants face a potential sentence of imprisonment of thirty or more years, as Kinney faced here, they are entitled to trial before a twelve-member jury. Ariz. Const. art. II, § 23; A.R.S. § 21-102(A). Although a defendant may not be so entitled if the prosecutor or the trial court expressly or implicitly precludes a sentence of thirty years or more, no such waiver occurred here. State v. Soliz, 223 Ariz. 116, ¶ 16 (2009) (extending principle that judge's or prosecutor's explicit waiver of thirty-year-plus sentences to also include implicit waivers of such sentences). In contrast, the state expressly refused to waive its right to pursue consecutive sentences that would exceed thirty years' imprisonment. And Kinney did not waive his constitutional right to a twelve-member jury. Under these circumstances, the trial court did not err in refusing to continue with a trial that could have led to a conviction by a jury whose numbers did not reach the twelve-person minimum. As the court reasoned, any conviction by the eight-member jury would have been futile because it would have been reversed on appeal. Thus, we find no error in the trial court's finding of manifest necessity and declaration of mistrial.
Kinney arguably invited the error underlying the trial court's grant of a mistrial. See State v. Robertson, 249 Ariz. 256, ¶ 15 (2020) (invited error doctrine applies when "it is clear from the facts that the party asserting the error on appeal is responsible for introducing the error into the record"); State v. Logan, 200 Ariz. 564, ¶ 9 (2001) (appellate court "will not find reversible error when the party complaining of it invited the error"). Kinney had himself informed the court that an eight-person jury was appropriate before seeking mistrial on the ground that it was not.
Alleged Prosecutorial Misconduct
¶9 Kinney also argues the prosecutor engaged in misconduct when he "asked [Kinney] specific questions about his prior convictions" despite the trial court's order precluding discussion of the nature of those convictions. Specifically, after Kinney agreed during direct examination that he had pled guilty to two prior felonies, on cross-examination the prosecutor asked Kinney the following: "You didn't plead guilty to the charges that you were charged with in your convictions for 2013 and 2006; those were not the original charges you plead to, were they? You said you took a plea agreement, correct?" Kinney's counsel immediately objected, requesting first that the question be stricken and then a mistrial. The court denied a mistrial but sustained the objection, reminded the prosecutor that he could not "go into the nature of the charges" or what Kinney "was charged with but did not admit pursuant to the plea agreement," and ordered the question be stricken. Immediately after that ruling, the prosecutor asked Kinney if he had been convicted of a prior felony of a certain case number, which prompted Kinney to ask the prosecutor to "elaborate on the convicted felony." His defense counsel objected, and the court noted that Kinney may have been inclined to "volunteer what the nature of the offense was." It then directed the prosecutor to have Kinney review an admitted exhibit and answer in a yes-or-no format, which the prosecutor proceeded to do.
Kinney characterizes this behavior as prosecutorial misconduct. However, our supreme court recently reasoned that "[w]hen reviewing the conduct of prosecutors in the context of 'prosecutorial misconduct' claims, courts should differentiate between 'error,' which may not necessarily imply a concurrent ethical rules violation, and 'misconduct,' which may suggest an ethical violation." In re Martinez, 248 Ariz. 458, ¶ 47 (2020). Accordingly, because Kinney has alleged no ethical violation in this matter, we refer to the prosecutor's behavior as "prosecutorial error."
¶10 Kinney characterizes this questioning as prosecutorial misconduct and argues the trial court erred in not granting his request for a mistrial on this basis. We will not reverse a conviction for prosecutorial misconduct or error unless "misconduct is indeed present" and "a reasonable likelihood exists that the misconduct could have affected the jury's verdict," thus denying the defendant a fair trial. State v. Smith, 250 Ariz. 69, ¶ 138 (2020) (quoting State v. Anderson, 210 Ariz. 327, ¶ 45 (2005)). When, as here, a defendant timely objects to alleged trial error, the state bears the burden of demonstrating its harmlessness. State v. Henderson, 210 Ariz. 561, ¶ 18 (2005). "In deciding whether error is harmless, the question 'is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.'" State v. Leteve, 237 Ariz. 516, ¶ 25 (2015) (quoting Sullivan v. Louisiana, 508 U.S. 275, 279 (1993)).
¶11 Kinney has not shown he suffered prejudice from the prosecutor's questions, and therefore any hypothetical error would not be reversible. Even were we to assume prosecutorial error occurred, we conclude the trial court's rulings surely dulled the impact of any error, such that a mistrial was unnecessary. See State v. Moody, 208 Ariz. 424, ¶ 152 (2004) (even an "irresponsible, inappropriate, and inflammatory" comment may not warrant reversal if "rendered less harmful" by the court's instructions); State v. Dansdill, 246 Ariz. 593, ¶ 58 (App. 2019) (prejudice from improper argument may be cured if remedial measures are taken that effectively "dull the impact of the misconduct"). Kinney's counsel immediately intervened before Kinney answered the questions. The court sustained the first objection and struck it from the record. We presume jurors follow a trial court's instructions. State v. Manuel, 229 Ariz. 1, ¶ 24 (2011). And, the court guided the prosecutor in posing questions that comported with its prior order to avoid revealing the nature of the offense. Finally, the jurors viewed video evidence showing Kinney committing the acts with which he was charged. Under these circumstances, we conclude the jury's guilty verdicts were surely unattributable to the prosecutor's two unanswered questions, and thus any alleged error was harmless. Accordingly, the court's denial of mistrial was proper.
Kinney's counsel did not renew his motion for a mistrial after the prosecutor posed the second question. --------
Disposition
¶12 For the foregoing reasons, we affirm Kinney's convictions and sentences.