Court of Appeals of Arizona, First Division, Department B
Not for Publication – Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County Cause No. CR2010-048718-001 The Honorable Warren J. Granville, Judge
Thomas C. Horne, Attorney General Phoenix By Joseph T. Maziarz, Chief Counsel Criminal Appeals Section Attorneys for Appellee
Bruce Peterson, Legal Advocate Phoenix By Frances J. Gray, Deputy Legal Advocate Attorneys for Appellant
DONN KESSLER, Presiding Judge
¶1 Defendant, Cesar Chacon, appeals his convictions and sentences for first degree murder and misconduct involving weapons. Chacon argues the trial court abused its discretion in denying his motion for mistrial after an outburst by the victim's father ("Mr. S.") in the jury's presence. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 On November 16, 2010, M.S. was at a friend's house when she decided to purchase a $50.00 gift card with her prepaid Visa and resell it for $25.00. She sold the card to Chacon, but when Chacon tried to use it, the card was declined.
¶3 Chacon was angry and called M.S. who told him she would give him another gift card. Chacon thought M.S. was lying. M.S. told Chacon she was not going to give him anything until she saw the gift card. M.S. agreed to go with Chacon back to his house to get the card. After obtaining the card, Chacon asked the driver to pull over and asked M.S. if he could talk to her. M.S. and Chacon walked off into the dark, and after a couple of minutes the driver heard gun shots.
¶4 Chacon got back into the car and the driver dropped him off at home. The driver testified that Chacon told him to get rid of the gun and warned him that "[t]he same thing could happen to [him]." When he returned home, Chacon told his girlfriend he shot M.S. Chacon then called M.S.'s friends and told them he had just shot their "home girl."
¶5 Chacon was arrested and charged with one count of first degree murder, a class 1 dangerous felony, and one count of misconduct involving weapons, a class 4 felony. During the trial, Dr. Keen, a forensic pathologist, was testifying about M.S.'s injuries when Mr. S. verbally attacked and attempted to physically attack Chacon as reflected in the transcript:
Q. So would she be able to feel the pain from this injury?
A. And still be able to move.
Q. And still be able to scream?
A. Still be able to scream.
Q. That bullet, was it recovered --
MR. [S.]: You killed my fucking daughter. You son of a bitch.
THE COURT: Ladies and gentlemen, let's go back to the jury room.
MR. [S.]: She didn't deserve this.
THE DEPUTY: Can I get a ...