State v. Bonfiglio

228 Ariz. 349

266 P.3d 375

623 Ariz. Adv. Rep. 7

STATE of Arizona, Appellee,

v.Austin James BONFIGLIO, Appellant.

No. 1 CA–CR 10–0075.

Court of Appeals of Arizona, Division 1, Department A.

Dec. 6, 2011.As Amended Dec. 29, 2011.

Thomas C. Home, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section And Suzanne M. Nicholls, Assistant Attorney General, Phoenix, Attorneys for Appellee.

James J. Haas, Maricopa County Public Defender By Stephen R. Collins, Deputy Public Defender, Phoenix, Attorneys for Appellant.

OPINION

THOMPSON, Judge.

¶ 1 Austin James Bonfiglio (appellant) appeals his conviction and sentence on one count of aggravated assault. Because the prosecutor's conduct was not improper, and the aggravated sentence was lawful, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 Richard “Jake” Mondeau hosted a birthday party at his residence. Up to seventy people attended the party, among them Shawn Moreno and several of his friends, including Kaelee Reddell. Alcohol was served at the party, and at some point a disagreement and verbal altercation ensued between Reddell and Mondeau. That argument resulted in a brawl in the front and back yards and many of the party guests became involved. Moreno testified at trial that he was involved in the fight, and was assaulted by three men he could not identify, who knocked him to the ground, kicking and beating him.

¶ 3 Upon witnessing the assault on Moreno, Reddell shouted and pushed the assailants away, allowing Moreno to escape. It was not until he escaped that Moreno realized he had been stabbed several times during the attack. Reddell accompanied Moreno to the emergency room.

¶ 4 As the fight broke up, appellant went into the garage of the house where Mondeau and other party guests discussed what had occurred. One party guest, Christopher Habeeb, testified at trial that appellant claimed he stabbed someone during the fight. Police came to the residence and later arrested appellant.

¶ 5 The state charged appellant with one count of aggravated assault, a class 3 dangerous felony. At trial, Reddell testified that appellant was one of Moreno's assailants, that she identified appellant in a line up the next day, but that she never saw anyone stab Moreno. Additionally, transcripts of jail calls between appellant and Mondeau were admitted into evidence. The transcripts revealed appellant's statement that if Habeeb intended to testify, appellant would have friends “make a visit” and “slow him down.” During closing argument, the prosecutor rebutted appellant's claim that the case relied on Habeeb's testimony alone, stating:

You heard his telephone conversations, which is a good explanation of why there aren't more people here to tell us about that night. You heard how hard he was trying to keep Christopher Habeeb from coming. Ladies and gentlemen he did this where he thought he could get away with it.

¶ 6 The jury found appellant guilty of aggravated assault. The jury also found one aggravating factor, that he “had the ability to walk away from the confrontation.” Prior to sentencing, appellant admitted to two previous felonies committed in 2007.¹

¶ 7 At sentencing, the trial court stated as follows:

[A]t this point, you have already admitted at a trial on the priors, two prior felony convictions. The court is cognizant of the record previously made on that date, given that, the court will sentence you under a range provided by the statute for two historical priors for a class three felony under the non dangerous categories, [section] 13–702.

With that, I am cognizant of the facts that because you were on probation at the time of the offense which was also resolved at trial on the priors, that the minimum you can receive is the presumptive which is a [sic] 11.25 years.

However, as I stated, the court has considered the one aggravating factor the jury found. I have considered all of the information that has been presented and this court does find it appropriate to order that you serve a term of 13 years, a slightly aggravated term in the Department of Corrections.

Appellant received 208 days of presentence incarceration credit.

¶ 8 Appellant timely appealed. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) § 12–120.21 (2003).

II. DISCUSSION

¶ 9 Appellant raises two issues on appeal. First, he claims that the prosecutor's statement regarding the absence of witnesses constituted improper vouching and thus reversible error. Second, appellant argues that the trial court's use of the aggravating factor found by the jury to impose an aggravated sentence was improper.

A. Prosecutorial Misconduct

¶ 10 Appellant argues that the comments made by the state during its rebuttal closing argument constituted prosecutorial misconduct and deprived him of a fair trial and due process. Specifically, appellant argues that the prosecutor's comment that the transcript of jail calls was “a good explanation of why there aren't more people here to tell us about that night” amounted to improper vouching because it suggested that additional unrevealed testimony supported a guilty verdict.

¶ 11 We “will reverse a conviction for prosecutorial misconduct if (1) misconduct is indeed present; and (2) a reasonable likelihood exists that the misconduct could have affected the jury's verdict, thereby denying [the] defendant a fair trial.” State v. Gallardo, 225 Ariz. 560, 568, ¶ 34, 242 P.3d 159, 167 (2010) (quoting State v. Velazquez, 216 Ariz. 300, 311, ¶ 45, 166 P.3d 91, 102 (2007)). The appellant must show that the offending statements were “so pronounced and persistent” that they “permeate[d] the entire atmosphere of the trial” and “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).

¶ 12 The prosecutor's statement did not indicate that additional unrevealed evidence supported a guilty verdict; rather, it called on the jury to draw a reasonable inference from the evidence presented at trial. That evidence included information about another person present at the party, Matt Cercone. Chris Habeeb stated in his direct testimony that after the fight broke up, everybody went their own way, and later appellant came up to speak to Habeeb. According to Habeeb, appellant said he had been “talking to Matt in the corner,” and then stated “I stabbed someone.” Habeeb then volunteered without objection that “[t]he next day Matt Cercone said that he [appellant] said the same thing to me.” On cross examination, Habeeb later testified again that appellant had told him “I just stabbed the guy.” In response to defense counsel's question, “[A]nyone else say anything to you about that?,” Habeeb responded “Oh, Matt Cercone ... said something about it.” In the various jail calls, appellant told Mondeau that certain witnesses needed to be contacted, including Habeeb and a person named Fabio. Mondeau said “I'll see if I can get a hold of some people.” Later, Mondeau told appellant he had “talked to everyone.” A subsequent conversation went as follows:

A [appellant]—What about Chris, has he said anything, have you talked to him?

J [Mondeau]—I don't know, He hasn't talked to anybody.

A—No, has he talked, no one's talked to him yet J–What's that?

A—No one has talked to him yet?

J—Who, Cercone? A–Nah, McCoy [Habeeb].

Matt Cercone did not testify at trial.

¶ 13 Although the prosecutor's challenged statement is supported by his personal knowledge of matters not in the record,² it was also a permissible inference from evidence in the record. It was not impermissible for the state to suggest, in response to the argument of defense counsel that it is not credible that Habeeb alone would have heard the confession from appellant when others were present nearby,³ that the jail calls offer an explanation as to why other party attendees were not available to testify as to what occurred on the night of the stabbing or to what appellant said he had done.

¶ 14 Therefore, for the prosecutor to suggest that appellant's threat to “slow down” a witness who intended to testify might make others reluctant to do the same was permissible. See State v. Bible, 175 Ariz. 549, 602, 858 P.2d 1152, 1205 (1993) (“[D]uring closing arguments counsel may summarize the evidence, make submittals to the jury, urge the jury to draw reasonable inferences from the evidence, and suggest ultimate conclusions.”). The evidence also supports an inference that appellant, with Mondeau as his agent, contacted Cercone to persuade him not to appear at trial. Further, the state reiterated that ultimately it is the responsibility of the jury to determine the credibility of witnesses, including Habeeb. Thus, we hold the prosecutor's statement did not constitute improper vouching.

B. Aggravated Sentence

¶ 15 Next, appellant argues that the trial court erred in assertedly using an element of the crime to aggravate his sentence. Specifically, he contends that because an aggravated assault conviction required that he act “knowingly,” aggravating the sentence because “[appellant] had the ability to walk away from the confrontation” constitutes double punishment in violation of A.R.S. § 13–116 (2010). Appellant argues he is entitled to the presumptive sentence. The state's position is that the record is unclear as to which aggravating factors the trial court relied on when sentencing appellant, and therefore requests that we vacate appellant's sentence and remand to the trial court for re-sentencing.

¶ 16 First, we address the propriety of the jury's finding as an aggravator that appellant could have walked away from the confrontation. Appellant argues that the use of this aggravator constitutes double punishment because the aggravator “was just a different way of stating that the assault was done intentionally, which was already an...