State v. Gallino

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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. CHARLES ALAN GALLINO, Appellant. 1 CA-CR 09-0434 DIVISION ONE FILED: 07/26/2011 RUTH A. WILLINGHAM, CLERK BY: DLL DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2007-006468-001 DT The Honorable Raymond P. Lee, Judge AFFIRMED Thomas C. Horne, Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender by Tennie B. Martin, Deputy Public Defender Attorneys for Appellant Phoenix Charles Alan Gallino Appellant Florence P O R T L E Y, Judge ¶1 Defendant Charles Alan Gallino challenges his conviction for first-degree murder and the resulting sentence under Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for Defendant has advised us that, after searching the entire record, she has been unable to discover any arguable questions of law, and has filed a brief requesting us to conduct an Anders review of the record. Defendant has taken the opportunity to file a supplemental brief. FACTS 1 ¶2 The police conducted a welfare check and found Eric Evans dead inside of his Phoenix apartment on June 8, 2007. few nights before the discovery, Hansberger, his neighbor. Eric was visiting A Paul Eric had been drinking because Savana Whipple, his girlfriend, had moved out of his apartment. ¶3 Ms. Whipple and Defendant, however, stopped by Hansberger s apartment later that evening to buy some pills. When Eric saw her, he punched Defendant in the face, which drew blood, and then left the apartment. ¶4 Later, Defendant drove Ms. Whipple to the place he was living. He left her there, and when he returned, she noticed that he had a gun. The pair then drove back to the apartment complex and Ms. Whipple waited in the car while Defendant left with the gun. When he returned, Defendant made a cell phone 1 We review the facts in the light most favorable to sustaining the verdict. See State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 2 call to his uncle, Gary Lape, and stated that he thought he might have killed somebody. ¶5 After driving around for awhile, Whipple went back to the apartment complex. to get out and look for a shell casing. shell casing, and gave it to Defendant. Defendant and Ms. Defendant told her She did, found the They left, and spent the night together. ¶6 The next day, Defendant told Jason Leger that after he had been hit in the mouth, he went back with a gun and fired a shot through the door. He also told Leger that he had Ms. Whipple retrieve the shell casing. Leger subsequently called silent witness. ¶7 Defendant was indicted for first-degree murder. The State alleged that he had four prior convictions and alleged other aggravating factors for sentencing. The matter proceeded to trial, and after the presentation of testimony and evidence, the jury convicted Defendant of the first-degree murder. ¶8 Defendant s motion for judgment of acquittal or, in the alternative, motion for a new trial was denied. Defendant was with subsequently sentenced to life imprisonment the possibility of parole after 25 years, with credit for 668 days of presentence incarceration. ¶9 We have jurisdiction over this appeal pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona 3 Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 134031, and -4033(A)(1) (2010). DISCUSSION ¶10 We Defendant s have read supplemental and considered brief, record for reversible error. and have counsel s searched the brief, entire See Leon, 104 Ariz. at 300, 451 P.2d at 881. ¶11 The opening brief notes that Defendant wants to raise several issues: insufficiency of the evidence, actual innocence; failure to mistrials; give denial a Willets of a instruction; motion for new failure trial; to grant prosecutorial misconduct; and failure to sua sponte give the second degree murder instruction. comments about In his supplemental brief, Defendant only matters discussed in the address the issues for reversible error. opening brief. We State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). ¶12 Defendant first challenges evidence used for his conviction. the sufficiency of the Specifically, he argues that Terri Frost, Ms. Whipple, Mr. Hansberger and Eric Stell should not have been allowed to testify. He argues that they, and others, were not credible witnesses because of drug addiction or drug use. He also claims that there were no credible witnesses to prove that he did anything, and the witnesses should not have been allowed to give hearsay testimony. 4 ¶13 Defendant filed motions in limine to preclude Teresa Frost, Chelsea testifying. relevant Nichol, Eric Stell, and Gary Lape from The motions were denied because the witnesses had information about statements Defendant made to them after the shooting which implicated him, and his statements were not inadmissible hearsay. Ariz. R. Evid. 801(d)(2). Alternatively, the testimony of one or more of the challenged witnesses could be used to impeach another witness with a prior inconsistent statement pursuant to Arizona Rule of Evidence 806. Accordingly, the trial court did not abuse its discretion by its pretrial evidentiary rulings. See State v. Roscoe, 184 Ariz. 484, 491, 910 P.2d 635, 642 (1996). ¶14 Defendant also asserts that the witnesses should not have been allowed to testify because of their addictions or drug use. The standard, however, is not whether they may use or abuse illegal drugs, but whether the witness has relevant testimony that will make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Evid. 401, 402. If the witness has relevant testimony that is material to the case, the witness should testify. cross-examination Ariz. R. of a witness, his or her During the observations, perceptions and credibility can be challenged or impeached in a myriad of ways. Ariz. R. Evid. 607. 5 The jury, as fact finder, then has to determine the credibility of each witness, determine the testimony to believe, and decide the facts. See State v. Fimbres, 222 Ariz. 293, 297, ¶ 4, 213 P.3d 1020, 1024 (App. 2009). We will not independently determine the credibility of the witnesses or the facts but defer to the jury s assessment of a witness s credibility and the weight to be given evidence. See id. at 300, ¶ 21, 213 P.3d at 1027. ¶15 The trial record here demonstrates that the challenged witnesses were cross-examined, and their credibility was challenged. For example, although Mr. Stell was given immunity to he testify, initially refused to testify, was found contempt of court, and jailed until he reconsidered. in Once he decided to testify, the jury heard about the contempt and the fact that he was jailed until he decided to testify. During his cross-examination, the jury heard about his grant of immunity; that he had stopped taking Xanax while he was detained for contempt; that he had used a myriad of other drugs; that he seemed to be confused and did not have any solid memory about the facts; during that their Consequently, the police interview; the jury had had been and to aggressive other decide towards relevant whether Mr. matters. Stell credible and whether to accept or reject his testimony. not second-guess or disturb the jury s determination. 6 him was We will ¶16 The second issue raised in the brief is the claim that the trial court erred by failing to give a Willits 2 instruction. Specifically, Defendant argued below that: the State failed to preserve a receipt that would have demonstrated the day and time that Ms. Sara Mitchell saw Ms. Whipple in a store; that the State failed to collect or preserve the victim s DNA; and that the State failed to preserve the blood that was smeared and transferred on the victim s lower leg. ¶17 A Willits instruction allows the jury to draw an inference from the destruction of material evidence that the lost or destroyed evidence would be unfavorable to the party that lost or destroyed the evidence. State v. Fulminante, 193 Ariz. 485, 503, ¶ 62, 975 P.2d 75, 93 (1999). A defendant is entitled to a Willits instruction when (1) the state fails to preserve accessible, material evidence that might exonerate him and (2) there is resulting prejudice. tend Id. to The exculpatory potential of the evidence, however, must have been apparent at the time it was lost or destroyed. State v. Davis, 205 Ariz. 174, 180, ¶ 37, 68 P.3d 127, 133 (App. 2002). defendant is not entitled to a Willits instruction A merely because a more exhaustive investigation could have been made. State v. Murray, 184 Ariz. 9, 33, 906 P.2d 542, 566 (1995). Moreover, 2 a Willits instruction is not appropriate State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964) 7 if the defendant fails to demonstrate that the absent evidence would have exonerated him. State v. Broughton, 156 Ariz. 394, 399, 752 P.2d 483, 488 (1988). ¶18 Although Defendant argues that he was harmed by the trial court s failure to give the instruction, there is nothing in the record to demonstrate that any ungathered evidence would have exonerated him, or that any evidence that collected or lost was unfavorable to the State. had been Accordingly, we find that the denial of the Willits instruction was not an abuse of discretion or fundamental error. ¶19 The third issue raised is Defendant s claim that the trial court erred by failing motions for mistrials. grant any of the requested We review the court s rulings for a clear abuse of discretion. 568. to Murray, 184 Ariz. at 35, 906 P.2d at A mistrial is the most dramatic remedy for trial error and should be ordered only when justice will be thwarted if the current jury is allowed to consider the case. Lamar, 205 Ariz. 431, 439, ¶ 40, 72 P.3d 831, State v. 839 (2003) (quoting State v. Nordstrom, 200 Ariz. 229, 250, ¶ 68, 25 P.3d 717, 738 (2001)). for a mistrial consider: attention (1) When determining whether to grant a motion based on whether matters that a witness's testimony, courts the testimony called the they would not be to must jurors' justified in considering in reaching their verdict and (2) the probability 8 under the circumstances influenced the jurors. ¶20 Defendant Stell s testimony. of the case that the testimony Id. first requested a mistrial during Mr. The trial court determined that neither the questions asked nor Mr. Stell s answers created prejudice or violated any of the court s earlier rulings. ¶21 Defendant later filed a written motion and requested a mistrial because Mr. Stell was allowed to testify even though he seemed, as the defense contends, incompetent to testify and disconnected from reality, especially because he testified that he received money to be a good witness. The motion also argued that Ms. Frost had violated the court s ruling that there be no discussion about Defendant s time in jail when she briefly discussed a party after he was getting out. Defendant also argued that Ms. Frost had improper contact with Mr. Lape and any attempted recording she had made of his statements had not been produced to the defense. Finally, he argued that Ms. Frost had improper contact with the case agent during trial. ¶22 The trial court denied the motion. The court watched the witnesses, listened to the testimony and was in the best position to determine whether the testimony violated any rules, rulings or otherwise brought matters to the jurors attention that they verdict, were as not well supposed as the to consider probability 9 in that reaching the their testimony influenced the jurors. We find no fault with the court s analysis or the denial of the motion for mistrial. ¶23 Moreover, Defendant also sought a mistrial after the State s closing statements that argument. were He unduly alleged that prejudicial; the namely, State that made Ms. Whipple was not granted immunity to testify; that Defendant was a killer ; and that he was a gangster. The jurors had been properly instructed that they had to determine the facts and that comments by the lawyers are not evidence. Consequently, because we presume that the jurors followed the instructions, State v. McCurdy, 216 Ariz. 567, 574, ¶ 17, 169 P.3d 931, 938 (App. 2007), no error was committed when the motion was denied. ¶24 erred The fourth issue on appeal argues that the trial court by failing to sua sponte give the lesser-included instruction on second-degree murder. ¶25 Generally a defendant is entitled to an instruction on any theory of the case reasonably supported by the evidence. State v. Shumway, 137 Ariz. 585, 588, 672 P.2d 929, 932 (1983). Although the trial court in a capital case must sua sponte instruct the jury on any lesser-included offenses even absent a defense request, State v. Whittle, 156 Ariz. 405, 407, 752 P.2d 494, 496 (1988), that requirement does not apply in a noncapital murder case unless the failure amount to fundamental error. Id. 10 to give an instruction would ¶26 In this case, there was no request for a second-degree murder instruction as a claimed lesser-included alibi and offense. Moreover, Defendant only misidentification as his defenses. As a result, absent a request for the lesser-included instruction, the failure to give the lesser-included instruction was not fundamental error. ¶27 The fifth issue listed is the argument that the trial court erred by denying his motions for new trial. ¶28 Motions for new trial are not favored. State Spears, 184 Ariz. 277, 287, 908 P.2d 1062, 1072 (1996). v. The motion should only be granted to promote justice and protect the innocent. (1954). State v. Chase, 78 Ariz. 240, 241, 278 P.2d 423, 424 The trial court has to review the evidence, and if there is substantial evidence 3 supporting the conviction, the court cannot State v. (1995). substitute Gulbrandson, its 184 judgment Ariz. 46, for that 65, 906 of P.2d the jury. 579, 598 Consequently, and as our supreme court noted more than fifty years ago, the grant of a new trial would be an abuse of discretion if there is evidence to support the verdict. Chase, 78 Ariz. at 241, 278 P.2d at 424. 3 Substantial evidence exists when reasonable people [c]ould differ on the inferences to be drawn from the evidence . . . . State v. Sullivan, 205 Ariz. 285, 287, ¶ 6, 69 P.3d 1006, 1008 (App. 2003). 11 ¶29 Here, because the trial court was familiar with the facts presented during trial, the court was in the best position to determine whether there was substantial evidence to support the verdict. Thus, although Defendant claims actual innocence, we find no error in the court s determination that there was substantial evidence to support the verdict that Defendant was guilty of murder in the first degree. Finally, 4 Defendant argues that there was prosecutorial ¶30 misconduct that amounts to fundamental error which requires a new trial. When reviewing claims of prosecutorial misconduct, our focus is on the fairness of the trial, not the culpability of the prosecutor. P.2d 1152, 1204 State v. Bible, 175 Ariz. 549, 601, 858 (1993). [Prosecutorial] [m]isconduct alone will not cause a reversal, but only where the defendant has been denied a fair trial as a result of the actions of counsel. State v. Hallman, 137 Ariz. 31, 37, 668 P.2d 874, 880 (1983). To prevail on a claim of prosecutorial misconduct, a defendant must demonstrate that the misconduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. State v. Hughes, 193 Ariz. 72, 79, ¶ 26, 969 P.2d 4 Defendant also argues that his trial lawyer was ineffective because the lawyer was unable to present character evidence; an issue the trial court resolved at a pretrial conference. If Defendant wants to pursue the ineffectiveness claim, he will have to file a petition pursuant to Arizona Rule of Criminal Procedure 32. See State v. Spreitz, 202 Ariz. 1, 2, ¶ 6, 39 P.3d 525, 526 (2002). 12 1184, 1191 (1998) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). ¶31 Based on the supplemental brief and the motion to the trial court, Defendant claims that the following statements made by the State during closing arguments were unduly prejudicial: that Defendant had a lack of remorse ; that Ms. Whipple was not granted immunity; that a slide was shown to the jurors with the word killer ; 5 that Defendant was twice called a gangster; and that the State argued that you are not even safe behind your door and now a person can shoot you. ¶32 jury We find no error. was properly The jury heard the testimony. instructed on the arguments of counsel are not facts. law and told that The the Consequently, because our supreme court has directed us to focus on the fairness of the trial, the complained during the closing having a fair trial. of statements argument did not made by prevent the prosecutor Defendant from Thus, there is no basis to warrant a new trial because of prosecutorial misconduct. ¶33 Having addressed the arguments, and having the entire record for reversible error, we find none. searched See Leon, 104 Ariz. at 300, 451 P.2d at 881. All of the proceedings were conducted Arizona in compliance with the 5 Rules of After Defendant told his uncle that he might somebody, Mr. Lape started calling him killer. 13 Criminal have shot Procedure. The record, as presented, reveals that Defendant was represented by counsel at all stages of the proceedings, and the sentence imposed was within the statutory limits. CONCLUSION ¶34 After this to represent obligation decision has Defendant been in filed, this appeal counsel s has ended. Counsel need do no more than inform Defendant of the status of the appeal review and reveals Defendant s an issue future options, appropriate for unless submission Arizona Supreme Court by petition for review. Shattuck, 140 Ariz. 582, 585, 684 P.2d counsel s to the See State v. 154, 157 (1984). Defendant can, if desired, file a motion for reconsideration or petition for review pursuant to the Arizona Rules of Criminal Procedure. ¶35 Accordingly, we affirm Defendant s conviction and sentence. /s/ _____________________________ MAURICE PORTLEY, Judge CONCURRING: /s/ _______________________________ PETER B. SWANN, Presiding Judge /s/ _______________________________ PATRICK IRVINE, Judge 14

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