Court of Appeals of Arizona, First Division, Department C
Not for Publication -Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County Cause No. CR2010-005534-001 The Honorable Bruce R. Cohen, Judge
Thomas C. Horne, Arizona Attorney General by Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section and Matthew H. Binford, Assistant Attorney General Attorneys for Appellee
James J. Haas, Maricopa County Public Defender By Mikel P. Steinfeld, Deputy Public Defender Attorneys for Appellant
JOHN C. GEMMILL, Presiding Judge
¶1 Christopher Michael Barron appeals his convictions and sentences on three counts of armed robbery, two counts of attempted armed robbery, one count of aggravated assault, and one count of misconduct involving weapons. For the reasons that follow, we affirm the convictions but correct an error in classification to reflect that the attempted armed robbery convictions on Counts Four and Six are class three dangerous felonies rather than class two dangerous felonies.
¶2 The convictions arose from the armed robbery of three customers of a Filiberto's restaurant in Tempe, the aggravated assault of one of the employees, and the attempted armed robbery of that employee and another employee. The evidence at trial showed that a dark-skinned man, wearing dark clothes, a hooded sweatshirt, and a bandana covering most of his face, robbed the customers at gunpoint. At the same time, a white-skinned man with blue eyes, similarly dressed and also wielding a gun, demanded that two of the employees open the cash registers, and struggled with and then shot one of the employees in the arm. None of the witnesses was able to provide a detailed description of the suspects.
¶3 Police swabbed the hand of the employee who had fought with one of the suspects and subsequently matched the DNA on the hand to Barron. Barron did not testify at trial but called an expert witness who testified that Barron's DNA could have been transferred to the victim's hand in any number of secondary or tertiary ways other than in the fight. The jury convicted Barron of the charged offenses and found aggravating factors on Counts One through Six. The judge sentenced him to aggravated sentences on Counts One through Six and the presumptive sentence on Count Seven, to be served concurrently, the longest term of which was seventeen years in prison. Barron timely appealed and we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2010), and 13-4033(A) (2010).
¶4 Barron argues that the trial court committed fundamental error by allowing the prosecutor to engage in misconduct (1) by demeaning the defense expert witness in cross-examination and in closing arguments, (2) by shifting the burden of proof and commenting on Barron's failure to testify in closing arguments, and (3) by misstating the law regarding circumstantial evidence. Barron argues that the cumulative impact of the prosecutor's misconduct warrants a new trial.
¶5 "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 to a significant resulting danger of mistrial." State v. Aguilar, 217 Ariz. 235, 238-39, ¶ 11, 172 P.3d 423, 426-27 (App. 2007) (internal quotations and citation omitted).
¶6 "To prevail on a claim of prosecutorial misconduct, a defendant must demonstrate that the prosecutor's misconduct so infected the trial with unfairness as to make the resulting conviction a denial of due process." State v. Morris, 215 Ariz. 324, 335, ¶ 46, 160 P.3d 203, 214 (2007) (internal quotations and citation omitted). "The misconduct must be so pronounced and persistent that it permeates the entire atmosphere of the trial." Id. (internal quotations and citation omitted). "Prosecutorial misconduct constitutes reversible error only if (1) misconduct exists and (2) a reasonable likelihood exists that the misconduct could ...