State v. Gohn

THE STATE OF ARIZONA, Appellee, v. MATTHEW DEAN GOHN II, Appellant.

No. 2 CA-CR 2017-0351

ARIZONA COURT OF APPEALS DIVISION TWO

September 7, 2018

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

NOT FOR PUBLICATION

See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).

Appeal from the Superior Court in Gila County

No. S0400CR201500476

The Honorable Gary V. Scales, Judge Pro Tempore

AFFIRMED

COUNSEL

Mark Brnovich, Arizona Attorney General

Joseph T. Maziarz, Chief Counsel

By Diane Leigh Hunt, Assistant Attorney General, Tucson

Counsel for Appellee

Emily Danies, Tucson

Counsel for Appellant

MEMORANDUM DECISION

Presiding Judge Vásquez authored the decision of the Court, in which Judge Espinosa and Judge Eppich concurred.

VÁSQUEZ, Presiding Judge:

¶1 After a jury trial, Matthew Gohn was convicted of manslaughter and three counts of endangerment. The trial court imposed concurrent and consecutive terms of imprisonment totaling thirteen years. Gohn argues the court erred by failing to contemporaneously record bench conferences and by admitting gruesome photographs of a victim. He also contends he was denied a fair trial due to prosecutorial misconduct. For the following reasons, we affirm.

Factual and Procedural Background

¶2 We view the facts and all reasonable inferences therefrom in the light most favorable to affirming Gohn's convictions. See State v. Granados, 235 Ariz. 321, ¶ 2 (App. 2014). Late on August 14, 2015, Gohn went to a bar in Globe with several friends to celebrate his birthday. While there, Gohn consumed several alcoholic beverages, including ales, beers, and shots of whisky. When the bar closed at 2 a.m. the next morning, a group of people decided to go to "the Pinals"—an isolated campground on a nearby mountain—for an after-party. Gohn offered to drive B.G., S.F., J.S., C.W., and J.H. On the way, Gohn was "showing off his truck," which had "punisher" written across the tailgate and was lifted with forty-inch tires. According to S.F., Gohn kept slowing down and speeding up and was "[g]oing around the corners too fast." C.W. similarly described Gohn's driving as "[p]retty dangerous." Both C.W. and B.G. told Gohn to slow down.

¶3 At the after-party, there was more drinking. Gohn had a handgun and fired it "[b]lindly, out in the hills somewhere." Gohn, B.G., S.F., J.S., and C.W. were the last to leave at about 3 a.m. J.H. got a ride back to town with someone else. Gohn again drove his truck, speeding "faster than when [they] were going out there" and scaring his passengers. He was going so fast that the truck began to "slide and drift."

¶4 The passengers again told Gohn to slow down. When C.W. grabbed Gohn to get his attention, Gohn slowed down, "taunted" them byasking if they were scared, and then sped up again. Gohn lost control going around a curve, causing the truck to rotate sideways and roll over. Gohn, S.F., J.S., and C.W. were all able to climb out of the overturned truck. J.S. and C.W. worked together to pull out B.G.; however, they immediately noticed her body was limp. It was later determined that B.G. died from blunt force trauma to her head as a result of the rollover.

¶5 Gila County Sheriff's deputies responded to the scene and arrested Gohn after performing field-sobriety tests and observing signs of his intoxication. Gohn admitted to deputies that he had "a couple of beers." Subsequent testing of Gohn's blood showed .092 alcohol concentration (AC) approximately four hours after the accident. A retrograde analysis established that Gohn had an AC range of .130 to .207 at the time of the accident.

¶6 A grand jury indicted Gohn for manslaughter (B.G.) and three counts of endangerment (S.F., J.S., and C.W.). He was convicted as charged and sentenced as described above. We have jurisdiction over Gohn's appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Bench Conferences

¶7 Gohn contends the trial court erred by denying his repeated requests to contemporaneously record bench conferences. He maintains "there were sixty-five bench conferences" during the five-day trial and defense counsel "was asked to keep [the substance of those conferences] in his head, throughout subsequent proceedings, . . . and regurgitate it at a later time" for the record.

¶8 Control of the courtroom and trial proceedings lies within the discretion of the trial court. See State v. Bible, 175 Ariz. 549, 595 (1993); see also Christy A. v. Ariz. Dep't of Econ. Sec., 217 Ariz. 299, ¶ 31 (App. 2007). However, our supreme court has long "disapproved of the practice of holding unrecorded bench conferences." State v. Hargrave, 225 Ariz. 1, ¶ 61 (2010); see also State v. Bay, 150 Ariz. 112, 115 (1986) ("This practice, if customary, should be immediately discontinued."). Although this practice at times "may be expedient and avoid some delay, it more often leads to confusion and inefficiency, frequently defeating the goal of preserving for appellate review an accurate record of what actually transpired in the trial proceedings." State v. Babineaux, 22 Ariz. App. 322, 324 (1974). But the supreme court "ha[s] never required 'the verbatim reporting of all bench conferences.'" Hargrave, 225 Ariz. 1, ¶ 61 (quoting State v. Berndt, 138 Ariz. 41, 46 (1983)). What is required is a record that is "sufficiently complete toallow 'adequate consideration of the errors assigned.'" Id. (quoting State v. Moore, 108 Ariz. 532, 534 (1972)). The failure to record bench conferences does not constitute reversible error when the defendant has suffered no prejudice. See State v. Paxton, 186 Ariz. 580, 589 (App. 1996); see also State v. Sanchez, 130 Ariz. 295, 301 (App. 1981).

¶9 Based on this clear direction from our supreme court, we conclude, and the state seems to agree, that contemporaneously recording the bench conferences would have been the better practice in this case.¹ See Hargrave, 225 Ariz. 1, ¶ 61; see also Bay, 150 Ariz. at 115. Nonetheless, the record is sufficiently complete for us to consider the issues raised on appeal. See Hargrave, 225 Ariz. 1, ¶ 61.

¶10 The trial court repeatedly allowed Gohn—and the state—to make a record of the issues raised during the unrecorded bench conferences. Cf. id. ¶ 62 (no reversible error when trial court ensured "adequate after-the-fact record was made of the discussions that occurred during each unrecorded conference"). Although Gohn maintains this procedure forced defense counsel "to rely on his memory and notes," Gohn does not argue that the record is somehow incomplete. Indeed, the record shows defense counsel carefully tracked issues addressed in the unrecorded bench conferences and later brought them up on the record. Thus, "[t]his is not a case in which an inadequate record impairs [Gohn's] ability to challenge rulings made by the trial court or preserve objections for appeal." Berndt, 138 Ariz. at 46.

¶11 Gohn nevertheless contends, "Because there is no contemporaneous record of the bench conferences referenced here, there is no way to adequately determine the extent of [the prosecutor's] misconduct," as it relates to that issue on appeal. However, any misconduct during the unrecorded bench conferences occurred outside of the jury's presence and necessarily had no effect on its verdicts. See State v. Williams, 113 Ariz. 14, 16 (1976) ("[R]emarks made outside the hearing of the jurors, even if prejudicial to the appellant, could not keep the jury from exercisingan impartial judgment on the merits, and do not warrant a reversal."). Accordingly, Gohn was not prejudiced by the trial court's failure to permit a record of the bench conferences. See Paxton, 186 Ariz. at 589; see also Sanchez, 130 Ariz. at 301.

Prosecutorial Misconduct

¶12 Gohn maintains he was denied a fair trial based on the prosecutor's "cumulative and egregious" misconduct. We review for an abuse of discretion the denial of a motion for a mistrial based on prosecutorial misconduct. State v. Burns, 237 Ariz. 1, ¶ 146 (2015).

¶13 "Misconduct is defined as conduct that '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.'" State v. Martinez, 221 Ariz. 383, ¶ 36 (App. 2009) (quoting Pool v. Superior Court, 139 Ariz. 98, 108-09 (1984)). "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. Goudeau, 239 Ariz. 421, ¶ 193 (2016) (quoting State v. Hughes, 193 Ariz. 72, ¶ 26 (1998)).

¶14 In reviewing cumulative prosecutorial-misconduct claims, we begin by assessing each claim individually. State v. Hulsey, 243 Ariz. 367, ¶ 88 (2018). After considering which claims constitute error, we review the cumulative effect of any error to determine whether it rendered the trial unfair. Id. We will reverse only "if the cumulative effect of the alleged acts of misconduct 'shows that the prosecutor intentionally engaged in improper conduct and did so with indifference, if not a specific intent, to prejudice the defendant.'" State v. Bocharski, 218 Ariz. 476, ¶ 74 (2008) (quoting State v. Roque, 213 Ariz. 193, ¶ 155 (2006)).

¶15 Gohn contends the prosecutor committed misconduct by asking questions that the trial court had precluded, repeatedly making "speaking objections and arguments" despite the court's instruction not to, and impugning the integrity of defense counsel. We address each alleged instance in turn.²

Precluded Questions

¶16 Gohn first argues the prosecutor committed misconduct during the redirect examination of S.F. The prosecutor initially asked her, "[C.W.] told the defendant to slow down, correct?" But the trial court sustained Gohn's hearsay objection. The prosecutor then asked, "And [J.S.] told him to slow down, too, correct?" And the court once again sustained an...