State v. Holloway

1

The State of Arizona, Appellee, v. Mary Holloway, Appellant.

No. 2 CA-CR 2023-0136

Court of Appeals of Arizona, Second Division

February 12, 2024

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Graham County No. CR202200255 The Honorable Michael D. Peterson, Judge

Kristin K. Mayes, Arizona Attorney General Alice M. Jones Deputy Solicitor General/Section Chief of Criminal Appeals By Michael T. O'Toole, Assistant Attorney General, Phoenix Counsel for Appellee

Elizabeth M. Hale, Lakeside Counsel for Appellant

Judge O'Neil authored the decision of the Court, in which Vice Chief Judge Staring and Judge Sklar concurred.

MEMORANDUM DECISION

O'NEIL, JUDGE

¶1 Mary Holloway appeals from her conviction and term of probation for possession of drug paraphernalia. We affirm.

Background

¶2 "We view the facts in the light most favorable to upholding the jury's verdicts." See State v. Gill, 248 Ariz. 274, ¶ 2 (App. 2020). In March 2022, Holloway was stopped by a police officer for a traffic violation. During the stop, the officer received information that drugs were found in another vehicle that Holloway had told the officer she was traveling with. The officer asked Holloway "where her drugs were," and she handed him her purse and told him there were two pipes and drugs in it. In the purse, the officer found "two glass pipes with residue," "two round glass containers," and a "clear plastic baggie that contained a white residue." The substance in one of the round containers tested positive for methamphetamine.

¶3 Holloway was charged with possession or use of dangerous drugs and possession of drug paraphernalia. The jury found her guilty of possession of drug paraphernalia but was unable to reach a unanimous verdict for possession or use of dangerous drugs. The trial court placed her on three years of supervised probation. This appeal followed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, 13-4033.

Discussion

¶4 On appeal, Holloway argues the trial court "committed reversible error" in denying her motion for mistrial based on prosecutorial error. "A declaration of a mistrial is the most dramatic remedy for trial error and should be granted only when it appears that justice will be thwarted unless the jury is discharged and a new trial granted." State v. Adamson, 136 Ariz. 250, 262 (1983). We review the court's denial of the mistrial motion for an abuse of discretion. See State v. Forde, 233 Ariz. 543, ¶ 103 (2014).

¶5 At a pretrial evidentiary hearing, the parties stipulated to the exclusion of the officer's body camera footage after the thirty-six minute and twenty-one second mark, after which time the footage captured statements Holloway had made before the officer provided her the required warnings under Miranda v. Arizona, 384 U.S. 436 (1966). During his opening statement at trial, the prosecutor said: "You will also hear on the body cam that this defendant admitted to using very recently, within the last few hours, methamphetamine." Holloway moved for mistrial, arguing the prosecutor should not have referred to her admission because it occurred during the excluded portion of the body camera footage.

¶6 The prosecutor explained any reference to excluded evidence had been inadvertent. He attributed the mistake to having had little time to prepare because he had been assigned the case the day before trial after the original prosecutor became ill. He also explained that he did not "listen to anything in the extended version of the body cam" while preparing for trial. Rather, "it was [his] memory . . . that [the] discussion about using occurred during that 36 minutes," and much of what he remembered was from the officer's written report. Later, after "confer[ring] with the officer," the prosecutor admitted that "the statements did come after" the admissible portion of the video. He conceded "it was error for [him] to state that, very clearly," but argued the error was harmless. The trial court denied the motion for mistrial, reasoning it was a good faith error that could not be "construed as to be so pronounced and persist[ent] that it permeates the entire atmosphere of the trial."

¶7 To warrant reversal of the trial court's denial of a mistrial, "[t]he defendant must show that the offending statement[], in the context of the entire proceeding, 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" State v. Newell, 212 Ariz. 389, ¶ 60 (2006) (quoting State v. Hughes, 193 Ariz. 72, ¶ 26 (1998)). To that end, Holloway must establish not only that the prosecutor's statement constituted error but also that there was a reasonable likelihood that the error affected the verdict. See State v. Murray, 250 Ariz. 543, ¶¶ 12-13 (2021); State v. Patterson, 230 Ariz. 270, ¶ 19 (2012).

¶8 Holloway argues the prosecutor's reference to her statement, taken in violation of Miranda, was error because it violated her constitutional "due process right to a fair trial" and her constitutional right against self-incrimination. Additionally, she asserts the prosecutor's statement was "improper" because it violated Rule 404(b), Ariz. R. Evid. We assume the prosecutor's comment was error because the state conceded the issue below and maintains on appeal that the prosecutor made a mistake.

¶9 There is no reasonable likelihood that the prosecutor's improper reference to inadmissible evidence impacted the jury's verdict. See State v. Dann, 220 Ariz. 351, ¶ 50 (2009) (mistrial motion properly denied when "no reasonable likelihood" improper evidence affected jury's verdict). Trials do not always go as planned, and the evidence does not always match the predictions offered during opening statements. State v. Pedroza-Perez, 240 Ariz. 114, ¶ 13 (2016). Even when a prosecutor's statement is improper, we generally trust jurors to follow a court's instruction that comments during opening statements and closing arguments are not evidence. E.g., Newell, 212 Ariz. 389, ¶¶ 67-68. Indeed, "[t]he trial process itself accounts for the risk that the trial evidence will not match the opening statements." Pedroza-Perez, 240 Ariz. 114, ¶ 13. Here, the trial court properly instructed the jury that the lawyers' statements are not evidence, and we find no reason to depart from the presumption that the jury followed this instruction. See, e.g., Newell, 212 Ariz. 389, ¶ 68; State v. Vargas, 251 Ariz. 157, ¶ 17 (App. 2021).

¶10 Holloway argues it is reasonably likely the error affected the verdict because although "Holloway admitted to having pipes on her, she did not specifically state that they were used to smoke meth." And in "telling the jury that she admitted to using meth," the prosecutor "effectively informed the jury that the pipes were related to meth." She also argues the statements were "prior bad act statements and could only be used to paint . . . Holloway as a drug user."

¶11 Considering the error in the context of the rest of the evidence, however, we conclude "the overwhelming evidence of guilt influenced the...