STATE v. MILLER

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NOTICE: NOT FOR PUBLICATION.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. IN THE ARIZONA COURT OF APPEALS DIVISION ONE STATE OF ARIZONA, Appellee, v. DEONTE STEPHON MILLER, Appellant. No. 1 CA-CR 13-0590 FILED 08-26-2014 Appeal from the Superior Court in Maricopa County No. CR2012-048372-001 The Honorable Jonathan H. Schwartz, Judge AFFIRMED COUNSEL Arizona Attorney General s Office, Phoenix By Linley Wilson Counsel for Appellee Maricopa County Public Defender s Office, Phoenix By Paul J. Prato Counsel for Appellant STATE v. MILLER Decision of the Court MEMORANDUM DECISION Presiding Judge Lawrence F. Winthrop delivered the decision of the Court, in which Judge Kenton D. Jones and Judge Samuel A. Thumma joined. W I N T H R O P, Presiding Judge: ¶1 Deonte Stephon Miller appeals his convictions and sentences for burglary in the second degree, a class three felony, and trafficking in stolen property in the first degree, a class two felony.1 For the following reasons, we affirm. ¶2 Miller argues the prosecutor committed misconduct by impugning the integrity of [Miller s] counsel in a single instance during closing argument without objection. At trial, Miller s girlfriend testified as an adverse witness during the prosecution s case-in-chief about her conversation with a defense investigator: Q: [D]id you tell me that the defense attorney sent an investigator to talk with you? A: Yeah. . . . Q: And didn t you tell me the investigator also told you to come in and help? A: I told you that they came and talked with me, meaning that they were all sad because I told them what they know and it seemed like it was not good enough. And he s like, well, I guess [Miller is] going to have to suffer. . . . Q: So he was talking you into coming and telling more than you knew? A: Yes. Miller filed a timely notice of appeal. We have jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes sections 12-120.21(A)(1) (2003), 13-4031 (2010), and 13-4033 (2010). 1 2 STATE v. MILLER Decision of the Court The jury also heard evidence that others (including Miller himself) had attempted to influence what she said. During closing argument, the prosecutor incorrectly stated, [Miller s girlfriend] is getting contacted by the defense attorney in jail who tells her: That s not enough; you need to say more, after she told him: That s all I know. All of the pressure on [Miller s girlfriend] . . . to tell a story. (Emphasis added.) ¶3 Because Miller failed to object to this alleged error at trial, we review for fundamental error. State v. Roque, 213 Ariz. 193, 228, ¶ 154, 141 P.3d 368, 403 (2006) (citation omitted). Under this review, Miller must demonstrate: (1) an error occurred, (2) the error was fundamental, and (3) the error caused him prejudice. State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 19-26, 115 P.3d 601, 607-08 (2005). As applied, among other things, Miller must show: (1) misconduct is indeed present; and (2) a reasonable likelihood exists that the misconduct could have affected the jury s verdict, thereby denying defendant a fair trial. State v. Anderson, 210 Ariz. 327, 340, ¶ 45, 111 P.3d 369, 382 (2005) (citation omitted). Misconduct includes a prosecutor impugn[ing] the integrity or honesty of opposing counsel. State v. Hughes, 193 Ariz. 72, 86, ¶ 59, 969 P.2d 1184, 1198 (1998). ¶4 Assuming without deciding the prosecutor s incorrect statement constituted misconduct, we cannot say this isolated instance of alleged misconduct denied Miller a fair trial. Miller has not demonstrate[d] that the prosecutor s misconduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. Id. at 79, ¶ 26, 969 P.2d at 1191 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). As a result, we affirm Miller s convictions and sentences. :gsh 3

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