Opinion
No. 2 CA-CR 2017-0365
09-14-2018
THE STATE OF ARIZONA, Appellee, v. DAVID HOWARD NEVILLE, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Gracynthia Claw, Assistant Attorney General, Phoenix Counsel for Appellee Joel Feinman, Pima County Public Defender By Michael J. Miller, Assistant Public Defender, 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NOT FOR PUBLICATION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 Pima County
No. CR20141653001
The Honorable Casey F. McGinley, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Gracynthia Claw, Assistant Attorney General, Phoenix
Counsel for Appellee Joel Feinman, Pima County Public Defender
By Michael J. Miller, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Espinosa and Judge Eppich concurred. VÁSQUEZ, Presiding Judge:
¶1 After a jury trial, David Neville was convicted of aggravated assault on a corrections officer. The trial court imposed a presumptive, enhanced five-year prison term. On appeal, Neville argues the court erred by denying his motion for a mistrial based on prosecutorial misconduct and his request for a self-defense instruction. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the facts and all reasonable inferences therefrom in the light most favorable to affirming Neville's conviction. See State v. Williams, 236 Ariz. 600, ¶ 2 (App. 2015). In April 2014, Neville was an inmate at the Pima County Jail. Because of a "minor rule infraction," Corrections Officer Bradley placed Neville on "lockdown," meaning he was confined to his cell at all times, except to pick up his meals. At dinnertime, Bradley instructed Neville to "get [his] . . . tray and go back in [his] cell." Shortly thereafter, however, Bradley saw Neville sitting at a table in the common room with his dinner. Bradley told Neville to go back to his cell, but Neville became agitated and began arguing with Bradley about having been placed on lockdown.
¶3 Neville eventually started walking toward his cell, but he turned around and confronted Bradley again, telling him, "[P]ut me in my fucking cell." Bradley "gave [Neville] another chance," warning him to "[l]ock it down," but Neville continued to argue. Bradley responded by giving Neville an "impact push," which Bradley described as a push on the chest to "create space" between them and "control the situation." Because Neville had a hot dinner tray in his hand and was still "acting aggressively," Bradley gave him two more impact pushes, guiding him to his cell. As the two men stood at the threshold of Neville's cell, Neville struck Bradley with his right hand. After Bradley radioed for assistance, Neville went into his cell without further incident.
¶4 A grand jury indicted Neville for aggravated assault on a corrections officer. He was convicted as charged and sentenced as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Neville waived his presence at trial and appeared telephonically for sentencing.
Motion for a Mistrial
¶5 Neville contends the trial court erred by denying his motion for a mistrial, arguing the prosecutor repeatedly engaged in misconduct during closing argument. We review the denial of a motion for a mistrial for a clear abuse of discretion. State v. Newell, 212 Ariz. 389, ¶ 61 (2006); State v. Almaguer, 232 Ariz. 190, ¶ 29 (App. 2013).
¶6 During the prosecutor's closing argument, he remarked:
Finally, the State believes [Neville] also acted with intent to provoke the officer. As we heard and as we saw in the video, he radioed for backup after the push. He was also concerned about him having a hot meal in his hands, a possible weapon. . . .
There is also another instruction that . . . says a corrections officer for our purposes may use physical force for the preservation of peace to prevent the commission of a felony or misdemeanor. . . . Neville was on a 23-hour lockdown. He was noncompliant. . . . This went on for about five minutes. Again, he was irate, using colorful language. He was being hostile. He is being combative.
So that begs the question. We took you away from your jobs, from your homes, from your families for the better part of today for a
very short trial. The defendant is charged with pushing a corrections officer. And there were those high impact pushes that preceded the actual assault being charged here. So the question is, why do we care, for lack of a better term? Well, there is sound policy in support of that. It relates in part to that instruction about corrections officers being able to use physical force. Now, again, you can rely on your common sense in deliberating and I indeed encourage you to. Does it make sense that someone who encourages, someone who encourages escalation of a situation in a jail, raising their voice, getting in an officer's face, leading to those high impact pushes, does it make sense that he gets to retaliate against that officer and avoid any legal consequences?At that point, defense counsel objected based on "improper argument," and the trial court directed the prosecutor, "You will probably want to go into a different area."
Another reason this is an aggravated assault is to protect officers in executing their duties. We all have heard on the news about some of the risks that officers face on a daily basis.
Pursuant to A.R.S. § 13-403(2), "[a] superintendent or other entrusted official of a jail, prison or correctional institution may use physical force for the preservation of peace, to maintain order or discipline, or to prevent the commission of any felony or misdemeanor."
¶7 The prosecutor then stated:
As we saw on the video, Officer Bradley was out on the pod, wing 3B. I believe he testified there were 36 inmates present on the scene. He was the sole officer on the floor. He was outnumbered by 36 to 1. The reason this offense is charged and the reason the State legislature enacted it was to protect officers.The court sustained defense counsel's objection. The prosecutor finished his closing argument:
Now as you saw, he had to call for backup. He had to lock down the entire pod. That is the reason this charge was brought
because if he requires assistance to carry out his duties based on the way the defendant was acting, it impacts the safety of everyone in that pod. So that is essentially this case. It was very short.
¶8 After the jury began its deliberations, defense counsel requested a mistrial. He argued that "[t]he jury has to know [Neville] is in jail," which "raise[s] concerns about this guy being a bad person," and that the prosecutor made "broad statements . . . about [how Neville] . . . should be found guilty because of these broader policy issues of how scary jail is." He maintained, "[O]nce you put that in their mind that they have an obligation to in this case uphold safety in general for corrections officers, you can't unring that bell." The prosecutor responded that, consistent with the jury instructions on justification in the correctional-facility setting, the officer's impact pushes were permissible "to maintain discipline." See A.R.S. § 13-403(2). The trial court denied the motion, explaining:
While the argument began to go into an area that was questionable and it was objected to, the Court immediately sustained it. [The prosecutor] immediately changed the content and tenor and nature of the argument and did so appropriately. In fact, the objection was so timely that he did not get the opportunity to finish the thought that would have been potentially prejudicial and the Court is not convinced that it would have been prejudicial to the extent that a mistrial would be granted in the first [instance]. The Court would grant a mistrial if it felt that was the only way to insure that . . . Neville receive a fair trial.
¶9 "[P]rosecutors have wide latitude in presenting their closing arguments," State v. Jones, 197 Ariz. 290, ¶ 37 (2000), but they may not appeal to the passions and fears of the jury, State v. Comer, 165 Ariz. 413, 426 (1990). Statements made in closing arguments "are improper if they (1) 'call to the attention of the jurors matters that they would not be justified in considering in determining their verdict, and (2) [there is a high] probability that the jurors, under the circumstances of the particular case, were influenced by the remarks.'" State v. Hulsey, 243 Ariz. 367, ¶ 109 (2018) (alteration in Hulsey) (quoting Jones, 197 Ariz. 290, ¶ 37). However, a "declaration of a mistrial . . . is 'the most dramatic remedy for trial error,'" State v. Dann, 205 Ariz. 557, ¶ 43 (2003) (quoting State v. Adamson, 136 Ariz. 250, 262 (1983)), and it "is only required when the defendant has been denied a fair trial as a result of the actions of counsel," Jones, 197 Ariz. 290, ¶ 37 (quoting State v. Hansen, 156 Ariz. 291, 296-97 (1988)).
¶10 On appeal, Neville argues the prosecutor appealed to the jury's passions by "paint[ing] a picture of an officer endangered by the crowd of 34 inmates." Relying on State v. Hughes, 193 Ariz. 72 (1998), Neville maintains the prosecutor's remarks were "an appeal to emotion in the same way" as an improper comment that a defendant could commit a future murder. Neville's reliance on Hughes is unavailing.
¶11 In Hughes, the defendant was charged with several felonies, including murder, and, as part of his closing argument, the prosecutor suggested that, if acquitted, the defendant may commit another murder in the future. 193 Ariz. 72, ¶¶ 22, 56. The defendant objected, arguing that the statement scared the jurors into thinking that if they acquitted him, he would "get out of custody" and "be uncontrolled and . . . violent." Id. ¶¶ 56, 67. Our supreme court concluded that the prosecutor's statement was improper because the "inference [was] clear." Id. ¶ 71.
¶12 Here, by contrast, the prosecutor's remarks stressed the underlying statutory policy of protecting corrections officers generally. This policy does not solicit the same kind of fear or emotion as releasing a murderer back into the public for him to kill again. See State v. Morris, 215 Ariz. 324, ¶ 58 (2007) (prosecutor's remarks improper when played on jurors' fears of defendant). In addition, we agree with the state that to the extent the prosecutor's remarks "alluded to the prevalence of crime on prison guards by inmates, and the guards' efforts to combat such crime," they were permissible. Cf. State v. Sullivan, 130 Ariz. 213, 219 (1981) ("It has frequently been held that such arguments referring to the prevalence of crime, the duty of the jury, and the efforts of the police in combatting crime are not improper."
¶13 Neville nevertheless contends that the trial court erred in denying his motion for a mistrial because it "misremembered that the issue was quickly dealt with, whe[n], in fact, the prosecutor continued to make the same argument." We agree with Neville that the prosecutor brought up officer safety again shortly after the court had directed him to move on to a different topic. Even so, we cannot say the court abused its discretion in denying Neville's motion for a mistrial. See Newell, 212 Ariz. 389, ¶ 61; Almaguer, 232 Ariz. 190, ¶ 29.
¶14 The trial court considered the prosecutor's remarks in the context of the case as a whole and determined a mistrial was not necessary. Because that court was in the best position to assess the effect of the prosecutor's statements on the jury, we defer to its discretionary determination. See Dann, 205 Ariz. 557, ¶¶ 43, 46. Notably, we agree with the court that a mistrial was not required because Neville was not denied a fair trial as a result of the statements. See Jones, 197 Ariz. 290, ¶ 37.
¶15 Moreover, the jury instructions remedied any improper implication by the prosecutor. See Hulsey, 243 Ariz. 367, ¶ 95. The trial court directed the jury to "determine the facts from the evidence produced in court," including the witness's testimony, admitted exhibits, and stipulations. It further explained that, although the lawyers' statements and arguments "may help you understand the law and the evidence," they are "not evidence." Additionally, the court instructed the jury that it must "disregard the question and any answer given" if the court sustained an objection thereto and that it "must not be influenced by sympathy or prejudice." We presume the jurors followed their instructions. See Newell, 212 Ariz. 389, ¶ 68. Consequently, there was not a "[high] probability that the jurors, under the circumstances of the particular case, were influenced by the remarks." Hulsey, 243 Ariz. 367, ¶ 109 (alteration in Hulsey) (quoting Jones, 197 Ariz. 290, ¶ 37).
Self-Defense Instruction
¶16 Neville next argues the trial court erred by denying his request for a self-defense instruction. "We review a trial court's refusal to instruct on self-defense for an abuse of discretion, viewing the evidence in the light most favorable to [Neville]." State v. Carson, 243 Ariz. 463, ¶ 17 (2018).
¶17 At trial, when Neville requested a self-defense instruction, the court deferred ruling on his request until after it heard all the evidence. Returning to the issue, the court noted that it "didn't hear really very much along the lines that would permit a self-defense instruction." In response, Neville asserted that "the question is whether or not the officer was using lawful or unlawful level of force" with his three impact pushes. He reasoned that the prison surveillance video showed the officer's conduct "was too great for the situation" and that Neville was entitled to use "as much force as necessary to prevent any future unlawful physical force." The prosecutor responded that "the level of force was almost de minimus and it wasn't unlawful given the circumstances." The court denied the request, explaining:
The Court has considered the video [and] . . . does recognize there are some actions within the video that could be susceptible to different interpretations. However, they must be taken as a whole. The actions . . . are certainly susceptible to [the] interpretation he has but there is no multiple set of interpretations to some of the actions . . . Neville took before that[,] which were he was aggressive, he was confrontational. There was one moment when the officer walked away from the situation and . . . Neville approached him. It was clear that . . . Neville was agitating the situation throughout the video. So to take one aspect or one piece of the action and say that because of that, we can conclude this without considering the rest, the Court thinks is ill-advised.
More importantly, we don't know what . . . Neville was thinking when he did that. He has chosen to absent himself. I'm not implying that he has a requirement to testify. The Court has to look at what actually has been presented to the jury and there is nothing presented to the jury that what . . . Neville was trying to do was lawfully get space when everything else he had been doing up to that point was attempt to engage with the officer. Based on what the Court has been presented with, self-defense is not an appropriate instruction in this case.
¶18 Generally, a defendant is justified in using self-defense "when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful physical force." A.R.S. § 13-404(A). A defendant need only present the "slightest evidence" that he acted in self-defense to be entitled to the instruction. State v. King, 225 Ariz. 87, ¶ 14 (2010) (quoting State v. Lujan, 136 Ariz. 102, 104 (1983)). "The 'slightest evidence' is a low standard that has been defined in the self-defense context as 'a hostile demonstration, which may be reasonably regarded as placing the accused apparently in imminent danger of losing her life or sustaining great bodily harm.'" Id. ¶ 15 (quoting Lujan, 136 Ariz. at 104). For example, in King, the defendant met this standard by presenting "evidence that he may have acted to defend himself" when "the victim precipitated the altercation by throwing [a] bottle at him without provocation." Id. ¶¶ 17-18.
In his reply brief, Neville argues that "there is no need to show a risk of severe injury or death" because the self-defense statute, § 13-404(A), applies when "a reasonable person would believe that physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful force." We need not address this argument, however, because we otherwise conclude that the trial court did not err in denying Neville's request for a self-defense instruction.
¶19 Neville maintains there was the "slightest evidence" of self-defense here because the prison surveillance video shows Bradley "forcefully" pushing him. He further argues that the trial court applied the wrong "slightest evidence" standard by "evaluat[ing] all of the evidence" and "conclud[ing] that the totality of the evidence did not support an instruction." Instead, he reasons that it was "the jury's duty to balance" Bradley's "use [of] force to maintain order or discipline" with his own need for self-defense.
¶20 Lujan is instructive. There, the supreme court found that "the hostile demonstration, if any, was provoked by [the defendant]." 136 Ariz. at 104-05; see also State v. Bojorquez, 138 Ariz. 495, 498 (1984). Contrary to Neville's argument, the court in Lujan considered the evidence—and encounter—as a whole to determine if there was the "slightest evidence" of self-defense. 136 Ariz. at 104-05. In doing so, it explained that "[t]he privilege of self-defense is not available to one who is at fault in provoking an encounter" and that "an aggressor may not claim self-defense unless he withdraws from the combat in such a manner as will indicate his intention in good faith to refrain from further aggressive conduct." Id.; see also § 13-404(B)(3). The court thus concluded, "[T]he trial court did not err in refusing to instruct on self-defense" because there was "no evidence of self-defense." Lujan, 136 Ariz. at 105.
This case is distinctive in that Bradley and Neville are on different legal footing than the typical assault victim and perpetrator. Cf. Lujan, 136 Ariz. at 103-04 (confrontation between men on public street). Bradley was a corrections officer at a facility where Neville was an inmate, and Neville refused to comply with Bradley's command, allowing Bradley to "use physical force for the preservation of peace, to maintain order or discipline, or to prevent the commission of any felony or misdemeanor." § 13-403(2). Nevertheless, the same principles concerning provocation, as discussed in Lujan, apply in this context. See § 13-404(B)(3); see also Bojorquez, 138 Ariz. at 498. --------
¶21 Similarly, the hostile demonstration in this case, if any, was provoked by Neville, who repeatedly refused to comply with the lockdown procedure. After Neville started arguing with Bradley about the lockdown, Neville began to walk away at least twice, but each time he returned in an aggressive manner. At one point, Neville even challenged Bradley to "put [him] in [his] fucking cell." Moreover, when Neville was at the threshold of his cell, the encounter could have ended. But Neville "did not communicate anything like a withdrawal from the encounter." Instead, he came back out of his cell, striking Bradley. Accordingly, there was not the "slightest evidence" of self-defense. See King, 225 Ariz. 87, ¶ 14 (quoting Lujan, 136 Ariz. at 104). The trial court did not abuse its discretion in refusing to instruct the jury on self-defense. See Carson, 243 Ariz. 463, ¶ 17.
Disposition
¶22 For the foregoing reasons, we affirm Neville's conviction and sentence.