State v. Churchwell

• Decision Date: 24 March 2011
• Docket Number: 2 CA-CR 2010-0057
• Parties: THE STATE OF ARIZONA, Appellee, v. WILLIE CHURCHWELL, Appellant.
• Court: Arizona Court of Appeals

THE STATE OF ARIZONA, Appellee,

v.WILLIE CHURCHWELL, Appellant.

2 CA-CR 2010-0057

COURT OF APPEALS STATE OF ARIZONA DIVISION TWO DEPARTMENT B

Dated: March 24, 2011

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

MEMORANDUM DECISION

Not for Publication

Rule 111, Rules of

the Supreme Court

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. CR20082363

Honorable Teresa Godoy, Judge Pro Tempore

Honorable Howard Fell, Judge Pro Tempore

AFFIRMED

Thomas C. Home, Arizona Attorney General

By Kent E. Cattani and Diane Leigh Hunt

Tucson

Attorneys for Appellee

Robert J. Hirsh, Pima County Public Defender

By Lisa M. Hise

Tucson

Attorneys for Appellant

KELLY, Judge.

¶1 Willie Churchwell appeals his conviction for sexual conduct with a minor under fifteen. He argues the trial court erred in allowing a break in jury deliberationsrather than granting a mistrial, in precluding evidence of the victim's prior sexual conduct, and by preventing him from presenting a complete defense. Churchwell also claims the prosecutor made multiple improper comments during opening and closing arguments, constituting misconduct. Finding no error, we affirm.

Background

¶2 "We view the facts and reasonable inferences therefrom in the light most favorable to sustaining the verdicts." State v. Herrera, 203 Ariz. 131, ¶ 2, 51 P.3d 353, 355 (App. 2002). The victim, C., and her mother, Mollie, live in Willcox, Arizona. Willie Churchwell is C.'s step-grandfather, married to C.'s maternal grandmother, Sue. Before the charged sexual conduct occurred, C. sometimes spent the night alone with Sue and Churchwell at the home they shared in Tucson. On those visits, C. typically slept in the same bed as Sue and Churchwell.

¶3 At trial, C. testified that, during one such visit in 2007, Churchwell "opened [her] mouth with his hands" and placed his penis in her mouth. In 2007, C. was six years old. After the incident, C. told a family friend, Marcia, "what [her] Grandpa Will did to [her]." Marcia then told C. she "needed to have this conversation with her mother." C. thereafter told Mollie what had happened and Mollie "immediately called the police." Subsequently, C. was taken for a forensic interview at the Children's Advocacy Center in Tucson, and a confrontation call was arranged between Mollie and Churchwell.

¶4 Churchwell was charged with five counts of sexual conduct with a minor under fifteen in violation of A.R.S. § 13-1405. The state subsequently dismissed the firstfour counts of the indictment. The remaining count concerned the incident that had occurred at Churchwell's home. The first trial ended in a mistrial after the jury was unable to reach a verdict. In the second trial, the jury found Churchwell guilty on the single remaining count. Churchwell moved for a new trial on the grounds that the trial violated his due process rights, and the trial court denied the motion. The court then sentenced Churchwell to a term of life imprisonment without the possibility of parole for thirty-five years. This appeal followed.

Discussion

I. Break in jury deliberations

¶5 Churchwell first argues the trial court abused its discretion and committed structural, prejudicial error by denying his motions for mistrial and new trial based on an eleven-day break in the jury's deliberations.¹ "Structural error 'deprive[s] defendants of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, '" and mandates reversal. State v. Valverde, 220 Ariz. 582, ¶ 10, 208 P.3d 233, 235 (2009), quoting State v. Ring, 204 Ariz. 534, ¶ 45, 65 P.3d 915, 933 (2003). There are only limited circumstances where an "error infect[s] the 'entire trial process' from beginning to end" and qualifies as structuralerror. Ring, 204 Ariz. 534, ¶ 46, 65 P.3d at 933-34, quoting Neder v. United States, 527 U.S. 1, 8-9 (1999) (internal quotation omitted in Ring).

¶6 Despite Churchwell's suggestion otherwise, an eleven-day break in trial proceedings is not unfair as a matter of law and does not constitute structural error. See State v. Johnson, 122 Ariz. 260, 270, 594 P.2d 514, 524 (1979) (ten-day recess for juror vacation not abuse of discretion, where testimony read to jury when requested);² Hamilton v. Vasquez, 17 F.3d 1149, 1159 (9th Cir. 1994) (eighteen-day recess did not violate due process); Johnson v. People, 384 P.2d 454, 459 (Colo. 1963) (although "highly undesirable" thirty-three-day postponement during trial not prejudicial); State v. Kanae, 970 P.2d 506, 511 (Haw. App. 1998) (seventeen-day recess permissible).

¶7 But, relying primarily on United States v. Hay, 122 F.3d 1233 (9th Cir. 1997), and People v. Santamaria, 280 Cal. Rptr. 43 (Ct. App. 1991), Churchwell argues the length of the jury separation resulted in proceedings that "inherently lack[ed]... due process." As the state argues, however, Hay and Santamaria are distinguishable because the reviewing courts in those cases found the recesses to be "unnecessary." In Hay, the recess was significantly longer than the one at issue here, an alternate juror was available, and both parties had stipulated to proceeding with eleven jurors. 122 F.3d at 1235. In Santamaria, the delay during deliberations resulted from the fact "that the judge was tobe 'away'" even though a substitute judge could have presided in the primary judge's absence. 280 Cal. Rptr. at 47-48.

¶8 Churchwell also contends the trial court violated his right "to a fair and impartial jury" because the extended recess exposed the jury to potential contamination.³ Although we agree with Churchwell "there may be some lengths of separation that involve such a probability that prejudice will result" as to inherently violate due process, we do not find that situation here. A trial court has broad discretion to determine whether a jury may separate after deliberations begin. Ariz. R. Crim. P. 22.1(b) ("[t]he court may in its discretion permit the jurors to disperse after their deliberations have commenced"). We therefore review the trial court's decision for an abuse of discretion. See State v. Murray, 184 Ariz. 9, 33, 906 P.2d 542, 566 (1995) (decision to sequester or separate jury not disturbed "absent a showing of an abuse of discretion and resulting prejudice to the defendant"); State v. Jeffrey, 203 Ariz. 111, ¶ 17, 50 P.3d 861, 865 (App. 2002) (motions for mistrial and new trial reviewed for clear abuse of discretion).

[T]he granting of a mistrial is an extreme remedy, it may and should be declared only as a result of some occurrence... of such a character that it is apparent to the court that because of it one of the parties cannot have a fair trial, or where further proceedings would be productive of great hardship or manifest injustice.

State v. Chaney, 5 Ariz. App. 530, 535, 428 P.2d 1004, 1009 (1967), quoting 88 C.J.S. Trial § 36(b) (1955). Likewise, "motions for new trial are disfavored and should begranted with great caution." State v. Hansen, 156 Ariz. 291, 295, 751 P.2d 951, 955 (1988). Because the trial court "'can better assess the impact of what occurs before [it], '" we give wide deference to the trial court's determination "of conflicting procedural, factual or equitable considerations." State v. Winegar, 147 Ariz. 440, 445, 711 P.2d 579, 584 (1985), quoting State v. Chapple, 135 Ariz. 281, 297 n.18, 660 P.2d 1208, 1224 n.18 (1983).

¶9 This case was tried before a twelve-person jury, without an alternate juror.⁴ On the first day of trial, December 15, the trial court and counsel agreed that deliberations would likely begin on Friday, December 18. The court informed the prospective jurors during voir dire that "[t]he trial is expected to last... through no later than Friday[, December 18]." As expected, the case was submitted to the jury on December 18, and the jury began deliberations at 12:20 p.m.

¶10 When the jury had not returned a verdict by 6:10 p.m., the trial court stated it intended to allow the jury to break for the weekend at 6:30 p.m. At 6:39 p.m., the court stated "all [jurors] have indicated that they are not available next week, given the holiday, "⁵ but they had agreed to resume deliberations on December 30. The jury wasreleased and returned at 10:00 a.m. on December 30 to resume deliberations, reaching a verdict at 11:28 a.m.

¶11 Before the delay in deliberations occurred, the jury already had been deliberating for six hours. In addition, the length of the delay was governed largely by the holiday season where the jurors had other commitments. In light of these circumstances, we cannot say the court abused its discretion in determining the better course of action was to reconvene after the holiday break, rather than order a mistrial. See Chaney, 5 Ariz. App. at 535, 428 P.2d at 1009 (mistrial an extreme remedy).

¶12 Churchwell speculates there were many ways he might have been prejudiced by the delay, including that the jury may have been exposed to outside influences over the break and their memories might have faded. He contends the break prejudiced him because "the jurors did not have the testimony and arguments fresh in their minds." We point out, however, that in Arizona jurors are allowed to take notes during trial, and the court indicated it would provide assistance to refresh the jurors' memories if they needed it. Ariz. R. Crim. P. 18.6(d) and 22.2(c).

¶13 And Churchwell has not shown that any juror was "exposed to improper outside influences."⁶ The mere fact that some jurors who had been "inclined to vote not guilty... on December 18" voted guilty when the jury reconvened does not aloneindicate improper influence. Churchwell argues that because the trial court committed structural error he is not required to show actual prejudice. But, as we explained above, the delay did not constitute structural error, thus prejudice cannot be...