State v. Hamilton

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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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) BENJAMIN HALE HAMILTON, ) ) Appellant. ) ) __________________________________) 1 CA-CR 10-0867 DIVISION ONE FILED: 05/08/2012 RUTH A. WILLINGHAM, CLERK BY: sls DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Coconino County Cause No. CR2008-0596 The Honorable Mark R. Moran, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General Phoenix By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Division And Suzanne M. Nicholls, Assistant Attorney General Attorneys for Appellee H. Allen Gerhardt, Coconino County Public Defender Attorney for Appellant Flagstaff T H O M P S O N, Judge ¶1 sentences Benjamin for Hale Hamilton first-degree appeals felony his murder, convictions armed and robbery, kidnapping, aggravated robbery, and possession of marijuana for sale. He argues that because he was acquitted of first-degree premeditated murder, his conviction for first-degree felony murder cannot stand, and that prosecutorial misconduct requires a new trial. For the reasons that follow, we find no reversible error and affirm. ¶2 The evidence supporting at trial, the viewed convictions, 1 in was the in light most favorable to summary as follows. Police found the victim dead from a single gunshot wound to the head, at about 10 p.m. on July 10, 2008, in a clearing off Woody Mountain Road in Flagstaff. The night before the murder, the victim had assaulted and robbed Micah N., a seventeen-year-old runner for Jesse C. and Hamilton s marijuana business. Jesse testified that the victim had called him late in the afternoon the day of the murder to purchase marijuana, and, after Jesse recognized the name, he and Hamilton decided to arrange a meeting in a secluded area ostensibly to sell the victim marijuana, but in reality to beat and rob him as payback for what he had done to Micah. ¶3 When they picked up Micah, Jesse told him to bring along a realistic-looking airsoft gun that Jesse had given him for protection, and a blanket, and to hide under the blanket in the cargo area. Once they had picked up the victim and reached 1 State v. Moody, 208 Ariz. 424, 435 n.1, ¶ 2, 94 P.3d 1119, 1130 n.1 (2004). 2 their destination, Hamilton took out a .45 caliber handgun, pointed it at the victim, and said, [H]ere s the deal, you jumped our runner, so you re f***ed. At the same time, Micah came out from under the blanket with the airsoft gun and held it to the victim s head. ¶4 The three ordered the victim out of the vehicle and took his wallet and cell phone. on the ground at Jesse ordered the victim down knifepoint. Neither Micah nor Jesse were looking at Hamilton when they heard a gunshot; both looked up and saw Hamilton with his arm extended holding the .45 caliber firearm pointed at the victim s head, and blood starting to pool around the victim s head. ¶5 A friend of Hamilton s testified that Hamilton told him later that night that he had shot the victim in the head. Several friends of Micah testified that Micah had told them shortly afterward that Hamilton had shot and killed the victim. Micah turned himself in to police the next day after friends of the victim, armed with shotguns, confronted him; police brought Jesse in for questioning that night and subsequently arrested him. Hamilton turned after learning that himself police into had police obtained the a following warrant for day his arrest. ¶6 murder, The jury convicted second-degree murder Hamilton as 3 a of first-degree lesser-included felony offense of first-degree premeditated murder, armed robbery, aggravated robbery, kidnapping, and possession of marijuana for sale. On Hamilton s motion, the judge vacated the second-degree murder conviction as duplicitous. The judge imposed a life sentence with possibility of parole after twenty-five years on the firstdegree murder conviction, and presumptive terms in prison on the remaining convictions. served concurrently, The judge ordered all sentences to be except for the two and one-half year sentence for possession of marijuana for sale, which he ordered to be served consecutively to the sentence for murder. Hamilton filed a timely notice of appeal. First-Degree Murder Conviction ¶7 Hamilton asks this court to vacate his conviction for first-degree felony murder on the ground that, because murder is only one offense under Arizona law, the jury s acquittal of him on the charge of first-degree premeditated murder of the same victim disposed of both murder charges. Alternatively, he urges us to adopt the reasoning of the dissent in State v. Canion, 199 Ariz. 227, 239, ¶ 54, 16 P.3d 788, 800 (App. 2000), and conclude that the legal impossibility of two murder convictions for the death of one person, one for first-degree felony murder and the other for second-degree murder as a lesser-included offense of first-degree premeditated murder, casts doubt on the integrity 4 of the verdict and requires a new trial. We find no merit in either argument. ¶8 The grand jury had indicted Hamilton, in Count One, for first-degree felony murder, and, in Count Two, for firstdegree premeditated murder, both arising from the murder of one person. The indictment did not charge the murder offenses in the alternative, and neither Hamilton nor the state asked the judge to instruct the jury that it should consider them in the alternative. the jury Without objection, the judge accordingly provided with two verdict forms, one for each count. The verdict form for first-degree premeditated murder provided that the jury could convict Hamilton of the lesser-included offenses of second-degree murder, manslaughter, or negligent homicide if it found him not guilty, or was unable to decide his guilt of any of the greater offenses. first-degree felony premeditated murder, dangerous offense. trial, Hamilton convictions for The jury found Hamilton guilty of murder, and not guilty of guilty of first-degree second-degree murder, a For the first time in a motion for new objected the that murder of the one return person of was two murder improper, and argued, pursuant to the dissent in Canion, that the two murder convictions cast doubt requiring a new trial. on the integrity of the verdict, Hamilton subsequently filed a motion to vacate the conviction for second-degree murder pursuant to the 5 majority opinion in Canion. The trial court denied the motion for Hamilton s new trial, but granted motion to vacate the second-degree murder conviction in Count Two, reasoning, It is duplicitous pursuant to law and, as a matter of law, I must vacate that conviction. ¶9 murder On appeal, Hamilton asks that the first-degree felony conviction be vacated as well on the basis that his acquittal on first-degree premeditated murder disposed of all first-degree murder charges. We find no merit in this argument. It is well-settled that the murder of one victim is one crime regardless felony of the murder theory and underlying premeditated the murder guilty are verdict, simply and alternate theories of first-degree murder. See State v. Tucker, 205 Ariz. 157, 167, ¶ 50, 68 P.3d 110, 120 (2003) ( That felony murder and premeditated murder contain different elements does not make them different crimes, rather they are simply two forms of first degree murder. ); see also State v. Schad, 163 Ariz. 411, 417, 788 P.2d 1162, 1168 (1989) ( [F]irst degree murder is only one crime regardless whether it occurs as a premeditated murder or a felony murder. ). The appropriate remedy when a jury convicts a defendant of two murders for murder of the same victim, however, is to vacate the lesser conviction. See Canion, 199 Ariz. at 231, ¶ 13, 16 P.3d at 792. Although in this case, the state did not charge the different theories of first-degree murder in the 6 alternative, as was the case in Canion, the result is the same. Because Hamilton was charged with committing the single offense of murder of a single victim, albeit under different theories, he could not be convicted of two murder offenses. See id. The trial court accordingly appropriately vacated the second-degree murder conviction. ¶10 See id. Hamilton s acquittal on the charge of first-degree premeditated murder, however, does not also require us to vacate his conviction for first-degree felony murder. Because premeditated murder and felony murder are alternate theories of murder, an acquittal on one theory of murder does not dictate an acquittal on the other. See State v. Smith, 160 Ariz. 507, 513, 774 P.2d 811, 817 (1989) (holding that a verdict of not guilty on a charge of first-degree premeditated murder is not inconsistent with a verdict of guilty on a charge of firstdegree felony murder); see also Canion, 199 Ariz. at 230, ¶ 11, 16 P.3d at 791 (holding that implicit acquittal on first-degree premeditated murder charge neither nullifies the felony murder guilty verdict nor implies innocent of that offense ). that the jury actually found him Nor do we find that the conviction of two homicides for the murder of one person requires a new trial, as suggested in the dissent in Canion. See Canion, 199 Ariz. at 239 n.7, ¶¶ 53-54, 16 P.3d at 800 n.7 (Ehrlich, J., dissenting). Although two murder convictions for the death of 7 one person are legally impossible, we are not persuaded that the verdicts in this case lacked integrity. See Canion, 199 Ariz. at 231-32, ¶¶ 15-20, 16 P.3d at 792-93. In this case, the jury followed its instructions to the letter, and simply found that the state had proved beyond a reasonable doubt the elements of first-degree felony murder and second-degree murder. For the foregoing reasons, we affirm Hamilton s conviction for firstdegree felony murder. Prosecutorial Misconduct ¶11 Hamilton also argues that prosecutorial requires a new trial on all counts. time on eliciting appeal that testimony the prosecutor from misconduct He argues for the first engaged Hamilton s in sister misconduct on by Hamilton s decision to invoke the right to remain silent after consulting with an attorney. He argues that the prosecutor also improperly commented on his right to remain silent and not to testify at trial by stating in rebuttal closing that Hamilton had told his sister that he could not talk to her about whether he was guilty or not, and by also stating in rebuttal closing that the state would be more than happy to hear from anybody who wants to tell us about what happened at the murder scene. ¶12 A prosecutor violates a defendant s due process rights by commenting on his silence at the time of arrest and after receiving Miranda warnings. Doyle v. Ohio, 426 U.S. 610, 619 8 (1976). Doyle rests on the fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him and then using his silence to impeach an explanation subsequently offered at trial. 116, 125, 871 P.2d 237, punctuation omitted). 246 State v. Ramirez, 178 Ariz. (1994) (citations and internal A prosecutor accordingly may impeach a defendant with his pre-Miranda silence. Id. The United States Supreme Court has not resolved, however, whether and under what circumstances a prosecutor may silence as direct evidence. use a defendant s pre-Miranda State v. Stevens, 228 Ariz. 411, 415 n.4, ¶ 10, 267 P.3d 1203, 1207 n. 4 (App. 2012). ¶13 Prosecutorial misconduct is not merely the result of legal error, negligence, mistake, or insignificant impropriety, but, taken as a whole, amounts to intentional conduct which the prosecutor knows to be improper and prejudicial, and which he pursues for any improper purpose with indifference significant resulting danger of mistrial. to a State v. Aguilar, 217 Ariz. 235, 238-39, ¶ 11, 172 P.3d 423, 426-27 (App. 2007) (quoting Pool v. Superior Court, 139 Ariz. 98, 108-09, 677 P.2d 261, 271-72 (1984)). Moreover, prosecutors have wide latitude in presenting their closing arguments to the jury: excessive and emotional language is the counsel's forensic arsenal, attorneys are permitted not bread limited to 9 and by butter the introduce weapon of principle or that comment upon evidence which has not previously been offered and placed before the jury. State v. Jones, 197 Ariz. 290, 305, ¶ 37, 4 P.3d 345, 360 (2000) (quoting State v. Gonzales, 105 Ariz. 434, 43637, 466 P.2d 388, 390-91 (1970)). ¶14 To determine improper, a consider whether the we attention whether of jurors matters they prosecutor s remarks would not remarks called be to justified are the in considering, and the probability, under the circumstances, that the jurors were influenced by the remarks. 305, ¶ 37, 4 P.3d at 360 (citation Jones, 197 Ariz. at omitted). To require reversal, prosecutorial misconduct must be so pronounced and persistent trial." that it permeates the entire atmosphere of the State v. Lee, 189 Ariz. 608, 616, 944 P.2d 1222, 1230 (1997) (citation omitted). ¶15 Appellant failed to object to the prosecutor s cross- examination of Hamilton s sister, or, on the ground he now raises on appeal, to the prosecutor s rebuttal argument that Hamilton could not talk with her about whether he s guilty or not, thus limiting our fundamental error only. review of these claims to one for See State v. Henderson, 210 Ariz. 561, 568, ¶ 22, 115 P.3d 601, 608 (2005). Prosecutorial misconduct constitutes fundamental error only when it is so egregious as to deprive the defendant of a fair trial. Ariz. 561, 564, 845 P.2d 487, 10 490 State v. Woody, 173 (App. 1992) (citation omitted). that the Defendant bears the burden of establishing error, error was fundamental, defendant prejudice. and that the error caused Henderson, 210 Ariz. at 568, ¶ 22, 115 P.3d at 608. ¶16 We find no prosecutorial misconduct, much less prosecutorial misconduct so pronounced and persistent that it requires reversal because it permeate[d] the entire atmosphere of the trial and denied Hamilton a fair trial. As an initial matter, we find no intentional misconduct in the prosecutor s cross-examination before trial of about Hamilton s Hamilton s sister demeanor on and what she conduct had said after he learned a warrant had been issued for his arrest for murder. The parties had stipulated before Hamilton s sister testified that they would not elicit testimony on specific discussions between Hamilton and his attorney, but they would be allowed to examine her on the fact that he had [an] opportunity to talk to his lawyer, talk to his mom and to his sister, and then decided to turn himself in. In fact, defense counsel first elicited testimony on this issue by asking the sister whether Hamilton had talked to an attorney before turning himself into police. The court also allowed defense counsel, over the prosecutor s objection, to ask Hamilton s sister to describe his demeanor upon learning that a warrant had been issued for his arrest on murder charges. She testified that Hamilton was definitely 11 surprised by it. reaction. He kind of did like a shoulders back surprised It definitely had kind of a shock reaction to it. ¶17 On prosecutor cross-examination, impeached Hamilton s without sister objection, with her the prior inconsistent statements, in which she had described her brother as worried, and definitely a little agitated, and quieter, rather than shocked and surprised. Prior inconsistent statements are admissible for the purposes of impeaching witness credibility. Ariz. R. Evid. 613 (providing that a party need not show a witness a prior inconsistent statement when examining her about it, but extrinsic evidence of a prior inconsistent statement is admissible only if opportunity to explain or deny it). the witness is given an The prosecutor accordingly appropriately impeached this witness with her prior inconsistent statements regarding Hamilton s demeanor on learning a warrant had been issued for his arrest for murder. ¶18 In attempting to impeach the witness with her prior inconsistent statements, however, the prosecutor improperly read aloud an initial portion of one of these prior statements, not inconsistent with her testimony at trial, in which she said that Hamilton s attorney had instructed him not to say anything at all about the case until he met with him, and specifically not to say guilty, not to say anything about it at all. Although it was improper for the prosecutor to confront the witness with 12 this initial portion of the statement, in the absence of any contemporaneous objection and in the context of these peculiar facts, we decline to find that the prosecutor engaged in prosecutorial misconduct or violated Hamilton s exercise of a right to remain silent, much less deprived him of a fair trial. See Ramirez, 178 Ariz. at 125, 871 P.2d at 246; Aguilar, 217 Ariz. at 238-39, ¶ 11, 172 P.3d at 426-27; Woody, 173 Ariz. at 564, 845 P.2d at 490. ¶19 Nor do we find that the prosecutor engaged in misconduct by referring again in rebuttal argument to Hamilton s statement to his sister after he had consulted an attorney that he can t talk to her about whether he s guilty or not. comment was part of a larger argument rebutting This Hamilton s argument that no physical evidence connected him to the murder: [THE PROSECUTOR:] Defense counsel says, there s no blood on Ben s shoes. But you wouldn t expect there to be blood on Ben s shoes. That s what [the state s crime scene reconstructionist] tells you. And, by the way, how do we know what shoes Ben wore back up to Tucson? Now, remember, what Sarah testifies is that Ben is in Tucson at her place on Saturday and he finds out there s a warrant for his arrest and he says, I need to talk to a lawyer, and then he gets Sarah to drive him up to Flagstaff. During the conversation he says, he can t talk to her about whether he s guilty or not. MR. GLAZER: said. Actually, I object. THE COURT: Overruled. 13 That is not what was [THE PROSECUTOR:] And he chooses what clothes to wear when he turns himself in. He makes that choice. The clothes are tested. There s no blood, just like there would be expected to be no blood. The hat limited back spatter. Most of the blood went out the exit wound of the cheek. You can look at the exhibit and see the blood, where it flowed from the cheek. There wasn t blood four to five feet away. And [the reconstructionist] said, you wouldn t expect to see it there. In context, the reference to Hamilton saying he couldn t talk to his sister about whether he s guilty or not, was offered as detail demonstrating that Hamilton chose the circumstances of his self-surrender, although gratuitous detail. The argument was consistent with his sister s testimony that he had followed his attorney s instructions not to say anything to anyone about the case, much less discuss his guilt or innocence, until he had met with respected. the attorney, an instruction she had said she Although we view this reference in the prosecutor s argument as improper, we decline to find that it rose to the level of prosecutorial misconduct, much less that it was so egregious in context that it deprived Hamilton of a fair trial, as necessary for reversal on fundamental error review. See Ramirez, 178 Ariz. at 125, 871 P.2d at 246; Aguilar, 217 Ariz. at 238-39, ¶ 11, 172 P.3d at 426-27; Woody, 173 Ariz. at 564, 845 P.2d at 490. ¶20 Finally, the prosecutor s comments in rebuttal closing that the state would be more than happy to hear from 14 anybody who wants to tell us about what happened at the murder scene, was not directed at Hamilton s silence, either after his arrest or at trial. Rather, the comment was specifically directed at Hamilton s argument that it would have been of no value for Jesse to tell the state during his free talk that Micah committed the murder. The state rebutted Hamilton s argument that the state had rushed to judgment after hearing from Micah before Jesse s free talk, explaining, what we re trying to do is find out what happened on Woody Mountain Road. We d be more than happy to hear from anybody who wants to tell us about it, and that includes Jesse []. Hamilton s objection that this constituted The judge overruled a comment on his right to remain silent, reasoning, I don t find it crosses the line with enough specificity to cast any type of comment upon the defendant s right to remain silent. We agree with the trial judge and find that the argument, taken in context, was not an improper comment on Hamilton s exercise of his right to remain silent, and accordingly find no prosecutorial misconduct on this ground either. 15 Conclusion ¶21 For the foregoing reasons, we affirm convictions and sentences. /s/ JON W. THOMPSON, Judge CONCURRING: /s/ PETER B. SWANN, Presiding Judge /s/ MICHAEL J. BROWN, Judge 16 Hamilton s

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