State v. Mankel

• Decision Date: 17 May 2016
• Docket Number: No. 2 CA-CR 2014-0414,2 CA-CR 2014-0414
• Citation: State v. Mankel, No. 2 CA-CR 2014-0414 (Ariz. App. May 17, 2016)
• Parties: THE STATE OF ARIZONA, Appellee, v. JOVON LUIS MANKEL, Appellant.
• Court: Arizona Court of Appeals

THE STATE OF ARIZONA, Appellee, v. JOVON LUIS MANKEL, Appellant.

No. 2 CA-CR 2014-0414

ARIZONA COURT OF APPEALS DIVISION TWO

May 17, 2016

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

NOT FOR PUBLICATION

SeeAriz. R. Sup. Ct. 111(c)(1);Ariz. R. Crim. P. 31.24.

Appeal from the superior Court in Pima County

No. CR20123739001

The Honorable Javier Chon-Lopez, Judge

AFFIRMED

COUNSEL

Mark Brnovich, Arizona Attorney General

Joseph T. Maziarz, Section Chief Counsel, Phoenix

By David A. Sullivan, Assistant Attorney General, Tucson

Counsel for Appellee

Steven R. Sonenberg, Pima County Public Defender

By Frank P. Leto, Assistant Public Defender, Tucson

Counsel for Appellant

MEMORANDUM DECISION

Judge Miller authored the decision of the Court, in which Presiding Judge Vásquez and Chief Judge Eckerstrom concurred.

MILLER, Judge:

¶1 After a jury trial, Jovon Mankel was convicted of first-degree murder, discharging a firearm at a non-residential structure, and aggravated assault with a deadly weapon or dangerous instrument, and sentenced to natural life.He argues (1)the trial court erred by precluding evidence that the victim's girlfriend was pregnant, (2)the court did not properly instruct the jury on the burden of proof for his defense of self-defense, and (3)the state's conduct during his testimony and its closing argument denied him a fair trial.We conclude the trial court did not err and affirm.

Factual and Procedural Background

¶2We view the facts in the light most favorable to upholding the jury's verdicts.State v. Haverstick, 234 Ariz. 161, ¶ 2, 318 P.3d 877, 880(App.2014).In September 2012, Mankel agreed to sell oxycodone pills to the victim, J.G.Nothing in the record indicates Mankel or the victim had a prescription for the oxycodone.They agreed to conduct the drug sale in a restaurant parking lot where Mankel was sitting with his girlfriend in her Chrysler.J.G. got into the back seat of the car on the driver's side and proceeded to rob Mankel and his girlfriend at gunpoint.J.G. quickly left the Chrysler, running back to the Oldsmobile he had arrived in.

¶3 Mankel grabbed a gun from the driver's side door and exited.He pointed his gun at J.G. and fired about five shots, three of which hit J.G.An autopsy revealed one bullet had hit J.G. in the back and exited through his abdomen, causing him to bleed to death.Mankel fled and was apprehended several days later.

¶4 Mankel testified that after J.G. had exited the Chrysler, he had turned back around and pointed his gun at Mankel, at whichpoint Mankel shot him in self-defense.A.K., an unrelated witness, testified he had been sitting in his own car waiting for someone in the restaurant when he saw J.G. running toward him after getting out of the Chrysler.He saw Mankel shoot J.G. in the back while J.G. was running away.He testified J.G. had not turned around.J.G.'s girlfriend S.A., who was in the Oldsmobile throughout the incident, also testified she had seen Mankel shoot J.G. in the back and never saw J.G. turn around.The jury rejected Mankel's self-defense justification and found him guilty on all counts.He was sentenced as described above and now appeals.Sections 13-4031and13-4033(A)(1), A.R.S., furnish jurisdiction.

Exclusion of Evidence

¶5 Mankel argues the trial court erred by granting the state's motion to preclude evidence that the victim's girlfriend was pregnant at the time of the incident, pursuant to Rules 401and403, Ariz. R. Evid.We will not disturb a court's evidentiary rulings absent a clear abuse of discretion.State v. Bocharski, 200 Ariz. 50, ¶ 21, 22 P.3d 43, 48(2001).

¶6 Relevant evidence—evidence with any tendency to make a fact of consequence more or less probable than it would be otherwise—is admissible except as otherwise provided by law or rule.SeeAriz. R. Evid. 401, 402.Yet the trial court"may exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice."Ariz. R. Evid. 403."'Unfair prejudice results if the evidence has an undue tendency to suggest decision on an improper basis, such as emotion, sympathy, or horror.'"State v. Ortiz, 238 Ariz. 329, ¶ 9, 360 P.3d 125, 130(App.2015), quotingState v. Mott, 187 Ariz. 536, 545, 931 P.2d 1046, 1055(1997).

¶7 Mankel argued below that evidence of S.A.'s pregnancy was relevant to "tell the whole story" and to show "just how dangerous" the victim and his girlfriend were, as well as their desperation to obtain drugs.The state argued the evidence was irrelevant because Mankel's self-defense theory turned on what Mankel had known or believed at the time he shot the victim.Further, there was no indication that Mankel had known thevictim's girlfriend was even present in the Oldsmobile during the shooting, much less that he had known she was pregnant.The state also argued evidence of S.A.'s pregnancy was unfairly prejudicial because other evidence proffered to impeach her perception of the shooting would show S.A. was abusing prescription pain medication on the date of the incident."[The pregnancy is] just there to paint her in a bad light and make the jury hate her,"the state contended.The court concluded that evidence of S.A.'s pregnancy was irrelevant, or to the extent it had any relevance, its probative value was substantially outweighed by the danger of unfair prejudice.

¶8 Mankel contends the fact that S.A. was pregnant had some tendency to make it more probable that J.G. had turned around after getting out of the Chrysler, because he would have wanted to protect S.A.'s unborn child.Yet Mankel was free to argue that J.G. would have had an incentive to turn around in order to protect his own life as well as S.A.'s life.Cf.State v. Walker, 138 Ariz. 491, 495, 675 P.2d 1310, 1314(1984)(no need to admit gruesome evidence to further prove unchallenged point).Whatever additional incentive J.G. might have had to turn around in order to protect S.A.'s unborn child, beyond his incentive to protect his own and S.A.'s lives, was arguably cumulative.Cf.State v. Fernane, 185 Ariz. 222, 227, 914 P.2d 1314, 1319(App.1995)(admitting prejudicial, inflammatory, duplicative evidence with only marginal relevance was error).

¶9 Assuming for the sake of argument that S.A.'s pregnancy had some tendency to make it more likely that J.G. turned around, nevertheless the trial court reasonably could have concluded the probative value was substantially outweighed by the risk of unfair prejudice.Rule 403;see alsoState v. Cooperman, 232 Ariz. 347, ¶ 17, 306 P.3d 4, 8(2013)(trial court has "considerable discretion" in Rule 403 balancing).As the state predicted at the hearing on the motion in limine, the jury heard evidence that S.A. had been abusing prescription painkillers on the date of the shooting.The court reasonably could have concluded evidence that S.A. was pregnant while abusing drugs would unduly inflame the jury and improperly suggest decision on the basis of emotion orhorror.Ortiz, 238 Ariz. 329, ¶ 9, 360 P.3d at 130;cf.State v. Davolt, 207 Ariz. 191, ¶ 63, 84 P.3d 456, 474(2004)(admitting minimally probative but highly prejudicial photographs of gruesome crime scene depicting victims' charred bodies was abuse of discretion).The court did not clearly abuse its discretion.

Jury Instructions

¶10 The written jury instructions in this case provided, in relevant part, "The state has the burden of proving beyond a reasonable doubt that the defendant did not act [in self-defense].If the state fails to carry this burden, then you must find the defendant not guilty of the charges."When reading this instruction to the jury before deliberations, however, the court neglected to read aloud the phrase "beyond a reasonable doubt."Mankel argues for the first time on appeal that this omission was error.Because he did not object below, it is his burden to show an error both fundamental and prejudicial.See generallyState v. Henderson, 210 Ariz. 561, ¶ 19-20, 115 P.3d 601, 607-08(2005).We review de novo whether jury instructions accurately state the law.State v. Juarez-Orci, 236 Ariz. 520, ¶ 12, 342 P.3d 856, 860(App.2015).There is no requirement that instructions be "'faultless,'" so long as, when taken as a whole, they adequately reflect the law and are not misleading.SeeState v. Rutledge, 197 Ariz. 389, ¶ 15, 4 P.3d 444, 448(App.2000), quotingState v. Noriega, 187 Ariz. 282, 284, 928 P.2d 706, 708(App.1996).

¶11 Mankel concedes that the written instructions provided to the jurors were legally correct.He nevertheless argues "[a] written instruction on burden of proof is not . . . sufficient to satisfy a defendant's right to fair trial when the oral instruction given to the jury omits the element of 'beyond a reasonable doubt.'"He relies on State v. Johnson, 173 Ariz. 274, 842 P.2d 1287(1992) in support of his argument.In Johnson, our supreme court reversed because the trial court affirmatively gave a "clearly wrong" oral jury instruction that improperly shifted the burden of proof to the defendant.Seeid. at 276-77, 842 P.2d at 1289-90.In this case, the trial court omitted a few words in an accurate and appropriate written self-defense instruction, and the defendant did not object to the omission.Cf.State v. Gallegos, 178 Ariz. 1, 10-11, 870 P.2d 1097, 1106-07(1994)(omission of "attempted" from oral instructions, although not fromwritten instructions, not reversible fundamental error).The jury took a copy of the correct written instruction with them to the deliberation room.Cf.State v. Kinkade, 140 Ariz. 91, 94-95, 680 P.2d 801, 804-05(1984)(no fundamental error where, inter alia, jury took copy of correct reasonable doubt instruction to jury room).The attorneys correctly argued the burden of proof for self-defense as stated in the written instructions, and nothing suggests that the jury was actually confused about the burden of proof.SeeGallegos, 178...