Opinion
No. 1 CA-CR 15-0620
08-09-2016
STATE OF ARIZONA, Appellee, v. THOMAS N. PANASEWICZ, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Mays Law Office, PLLC, Phoenix By Wendy L. Mays Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2015-001126-001
The Honorable Scott M. McCoy, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee Mays Law Office, PLLC, Phoenix
By Wendy L. Mays
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Patricia K. Norris delivered the decision of the Court, in which Judge Patricia A. Orozco and Judge Peter B. Swann joined. NORRIS, Judge:
¶1 Thomas N. Panasewicz appeals his convictions and sentences for one count of disorderly conduct under Arizona Revised Statutes ("A.R.S") section 13-2904 (2010) (a class six felony), one count of unlawful flight from pursuing law enforcement vehicle under A.R.S. § 28-622.01 (2012) (a class five felony), one count of aggravated assault under A.R.S. § 13-1204 (Supp. 2014) (a class three felony), and one count of aggravated assault under A.R.S. § 13-1204 (aggravated assault of a peace officer, a class two felony). Panasewicz argues the superior court should have granted a mistrial because, in her rebuttal closing argument, the prosecutor commented on his Fifth Amendment right to remain silent. Panasewicz also argues this court should remand the unlawful flight conviction to the superior court for resentencing because it considered aggravating circumstances, not found by the jury, when it sentenced him to the presumptive term of imprisonment. We reject both arguments and affirm Panasewicz's convictions and sentences.
FACTS AND PROCEDURAL BACKGROUND
This court views all facts and reasonable inferences in the light most favorable to sustaining the verdicts. State v. Bon, 236 Ariz. 249, 251, ¶ 2, 338 P.3d 989, 991 (App. 2014) (quotations and citation omitted). --------
¶2 On the evening of April 12, 2014, J.G., and some of his friends and family members, were driving in a caravan of cars to his house after a car show. As they were driving, J.G. noticed a truck trying to ram one of their cars. J.G. and the caravan stopped at a convenience store to get gas. As J.G. was pumping gas, he noticed the man from the truck (Panasewicz) looking at him confrontationally and noticeably drunk. J.G. told his cousin in Spanish "don't pay attention to him." Panasewicz then screamed at J.G. "you need to speak English because you're in America and I don't understand what you're saying."
¶3 J.G.'s friends and family members walked over to J.G.'s car to see what was going on. Panasewicz said "I got enough for all of you." Not knowing what he meant, J.G. approached the truck to hear what Panasewicz was saying. He then saw Panasewicz pointing a loaded "silver-ish" gun at them. J.G. ran, called 911, and described the truck to the 911 operator. After Panasewicz drove his truck around the parking lot several times, J.G. saw him drive away. At trial, J.R., who was with J.G. during the incident, also testified Panasewicz had waived a gun at them.
¶4 Officers T.L. and D.J. were driving a fully marked SUV when they responded to an emergency call that an individual, in a green or dark-colored truck, had pointed a gun at several individuals at a nearby convenience store. As the officers drove by a different convenience store, Officer T.L. saw a pickup truck, which matched the description of the truck he and his partner had been given. The officers pulled into the parking lot and parked behind the truck.
¶5 Officer T.L.—who did not have his gun drawn—approached the driver's side door of the truck, which was open. When he neared the truck's rear tire, he turned on his flashlight, pointed it into the cab of the truck, and asked Panasewicz what he was doing. Panasewicz looked at Officer T.L. and pointed a silver handgun at him. Officer T.L. backed-up, ran between his SUV and Panasewicz's truck, and yelled "Gun, gun." Officer D.J., who was approaching the truck on the passenger's side, heard Officer T.L. yell "gun."
¶6 Officer T.L. pulled out his gun and ordered Panasewicz out of the truck. Panasewicz ignored his command and drove away. The officers, and then a police helicopter, followed him but their chase ended when Panasewicz collided with another car.
¶7 When Officers T.L., D.J., and another officer, Officer J.L., arrived at the collision scene, Panasewicz was trapped upside-down inside his truck. Panasewicz yelled expletives and made obscene hand gestures at them. Officers pulled Panasewicz from his truck. Officer J.L. saw Panasewicz's "grey-colored" semi-automatic loaded handgun laying inside the truck. After police handcuffed Panasewicz, he told Officer J.L. "[i]t's your lucky day I couldn't find my gun, because you would have lost." Emergency services transported Panasewicz to the hospital. A few days later, on April 16, Officer J.L. was standing guard over Panasewicz at the hospital. Panasewicz looked at Officer J.L. and told him "[h]ey, man, I'm sorry. I wouldn't have really shot you."
¶8 Panasewicz testified at trial and admitted he had been drinking on April 12. Panasewicz denied using racial slurs towards J.G. Although he admitted to confronting J.G., he denied pointing his gun at him. Instead, he testified he had only held his gun up and set it down.
¶9 Panasewicz also testified that when Officer T.L. yelled "gun," his gun was on the floorboard of his truck—not in his hand. He additionally asserted he "got really scared and nervous" because the officer "actually acted like he was going to shoot me." Thus, he decided to flee to a nearby hospital, a place he "figured" the police would not shoot him. On cross-examination, Panasewicz claimed Officer T.L. had lied when he testified Panasewicz had pointed the gun at him. Finally, Panasewicz testified he probably did say he was sorry to Officer J.L. at the hospital.
DISCUSSION
I. Denial of Mistrial
¶10 Panasewicz argues the superior court should have granted a mistrial because the prosecutor commented on his Fifth Amendment right to remain silent in her rebuttal closing argument. Because the prosecutor's comments were not a comment on Panasewicz's right to remain silent—as Panasewicz was not in fact silent on the night of his arrest or at the hospital—the superior court did not abuse its discretion in denying his motion for a mistrial. State v. Hardy, 230 Ariz. 281, 292, ¶ 52, 283 P.3d 12, 23 (2012) (appellate court reviews superior court's denial of a motion for a mistrial for an abuse of discretion) (citation omitted).
¶11 In general, "[a] prosecutor may not comment on a defendant's invocation of his Fifth Amendment rights." State v. Parker, 231 Ariz. 391, 406, ¶ 64, 296 P.3d 54, 69 (2013) (citations omitted). A prosecutor's comments on a defendant's prior statements, however, are not improper comments on a defendant's invocation of his or her Fifth Amendment right to remain silent. See id. at 406, ¶ 65, 296 P.3d at 69 (prosecutor's comments that defendant did not deny he took credit cards were "permissible comments" on defendant's prior evasive statements regarding the credit cards and "not comments on his invocation of his Fifth Amendment rights") (citation omitted); State v. Burns, 237 Ariz. 1, 32, ¶ 150, 344 P.3d 303, 334 (2015) ("comments and evasive answers made before invoking the right to remain silent are admissible") (citation omitted). Here, the prosecutor's comments focused on Panasewicz's prior statements and not on his invocation of his right to remain silent.
¶12 In her rebuttal closing argument, the prosecutor argued:
437 days. That's how many days passed from April 12th of last year until last Thursday, when you heard the Defendant take the stand and tell his story, his version of events of what happened last year for, members of the jury, the very first time.
¶13 Panasewicz immediately moved for a mistrial. The superior court denied his motion, but told the prosecutor "you need to right away tie that with [] being inconsistent with [] what he said on the night in question. I think that fixes . . . [defense counsel's] concerns."
¶14 The prosecutor then clarified her argument stating:
The importance of those statements is that they're different from the statements of April 12th of last year where Defendant said, [c]ome and get me, and lots of expletives to the officers . . . to [J.G.] and [J.R.], and different than the statements made on April 16th of last year when he stated, I really wouldn't have shot you. I'm sorry.
¶15 First, although the prosecutor's initial argument was inartful, see supra ¶ 12, the prosecutor was attempting to compare Panasewicz's statements to the Officers on April 12 and 16, see supra ¶ 7, with his trial testimony. See State v. Stevens, 228 Ariz. 411, 416, ¶ 14, 267 P.3d 1203, 1208 (App. 2012) ("If a defendant chooses to waive the Fifth Amendment right to remain silent by testifying at trial, the prosecutor may impeach the defendant like any other witness, including inquiring about pre-Miranda warnings silence.")
¶16 Second, the prosecutor's argument was also designed to rebut Panasewicz's closing argument that the jury should accept his version of the events, such as his assertion that he never pointed a gun at Officer T.L., rather than the version of the events presented by the State. Thus, the prosecutor's argument was proper, as it focused on rebutting the suggestion that the State's witnesses were lying. See State v. Trostle, 191 Ariz. 4, 16, 951 P.2d 869, 881 (1997) ("Comments that are invited and prompted by opposing counsel's arguments are not improper if they are reasonable and pertinent to the issues raised.") (citation omitted).
¶17 Third, even if the prosecutor's reference to "437 days" amounted to a comment on Panasewicz's right to remain silent, the prosecutor then clarified that she was commenting on the differences between Panasewicz's prior statements to police and his trial testimony. See supra ¶ 14. Accordingly, under these circumstances, the superior court did not abuse its discretion in refusing to grant a mistrial. See Hardy, 230 Ariz. at 292, ¶ 52, 283 P.3d at 23 ("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.") (quotations and citation omitted). II. Sentencing
¶18 Although the superior court did not impose an aggravated sentence on the unlawful flight offense, Panasewicz argues the court improperly considered aggravating circumstances (that Panasewicz's actions created a "significant risk of harm to others" and his "blood alcohol content was greater than .15") not found by the jury in sentencing him to the presumptive term. Accordingly, Panasewicz argues we should remand for resentencing. Because he did not raise this argument in the superior court, we review for fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) (citation omitted).
¶19 We reject Panasewicz's argument. Because the superior court imposed a presumptive sentence for this offense, the sentence did not exceed the statutory maximum permitted when a jury does not find any aggravating circumstances. See State v. Molina, 211 Ariz. 130, 134, ¶ 14, 118 P.3d 1094, 1098 (App. 2005) ("'[O]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.'") (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000)); State v. Johnson, 210 Ariz. 438, 441, ¶ 10, 111 P.3d 1038, 1041 (App. 2005) ("[T]he maximum sentence for the purposes of Apprendi analysis is the presumptive term.") (citation omitted). Thus, when, as here, the superior court "ultimately impose[s] [a] presumptive term[]," after finding aggravating circumstances not found by a jury, the sentence does not "violate the requirements of Apprendi and Blakely." Johnson, 210 Ariz. at 441, ¶ 10, 111 P.3d at 1041.
CONCLUSION
¶20 For the foregoing reasons we affirm Panasewicz's convictions and sentences.