                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

               WILLIAM EUGENE MCKEEVER, Appellant.

                             No. 1 CA-CR 14-0856
                              FILED 12-17-2015

           Appeal from the Superior Court in Maricopa County
                        No. CR2013-429444-002
                   The Honorable Dean M. Fink, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Adele Ponce
Counsel for Appellee

Maricopa County Legal Defender’s Office, Phoenix
By Cynthia D. Beck
Counsel for Appellant
                          STATE v. MCKEEVER
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge John C. Gemmill joined.


C A T T A N I, Judge:

¶1          William Eugene McKeever appeals his conviction of second-
degree burglary and the resulting sentence. For reasons that follow, we
affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            D.C., the victim in this case, lived in Buckeye down the street
from a home he was renovating. One morning D.C. heard “clunking and
thumping” noises coming from the direction of that home, and he drove
over to investigate. He noticed that a chain that normally blocked the
driveway was on the ground, and he saw two men near the garage, loading
items into an SUV.

¶3            D.C. got out of his truck, unholstered his revolver, and with
the gun at his side, approached the men. The two men jumped into the
SUV, but the driver saw D.C.’s handgun, got out, and raised his hands. The
passenger, McKeever, yelled at the driver to “get in and go,” but the driver
stayed put. McKeever yelled at D.C., “[Y]ou’re not going to shoot me for
scavenging,” walked around the SUV and then got in the driver’s seat.
When McKeever drove toward the street, D.C. shot twice at the vehicle,
hitting the back tire. McKeever drove off, and D.C. called the police.

¶4          After police officers arrived, D.C. inspected the property with
them. D.C. noted that the garage lock had been smashed, and that his table
saw was missing. The door to the house—previously barricaded shut with
cement blocks—had been snapped in half, the door frame broken, and the
cement blocks pushed aside.

¶5            Inside the house, there were footprints and drag marks across
the floor. D.C. reported other missing items, including a refrigerator, two
motorcycle frames, two motorcycle wheels, a custom-made lawn chair, a
fluorescent light rack, and several motorcycle gas tanks.




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                           STATE v. MCKEEVER
                            Decision of the Court

¶6             A few hours later, an officer on patrol several miles from
D.C.’s house saw a vehicle matching the description of the SUV McKeever
was driving. The officer began to follow the vehicle, but before he turned
on his lights the vehicle came to a stop. McKeever got out of the SUV and
was arrested.

¶7            Police officers found a flat, shredded tire with a bullet hole in
it in the SUV. The officers also found D.C.’s missing lawn chair, table saw,
and two of his gas tanks. D.C.’s two motorcycle frames, wheels, and his
refrigerator were later recovered from the home where McKeever’s
companion lived. Additionally, officers subsequently determined that
McKeever’s shoes had similar tread to the footprints found in the
burglarized home.

¶8           After a jury found McKeever guilty of second-degree
burglary, he was sentenced to an aggravated sentence of nine years.
McKeever timely appealed, and we have jurisdiction under Arizona
Revised Statutes (“A.R.S.”) § 13-4033(A).1

                               DISCUSSION

¶9             McKeever argues that he was denied a fair trial due to
prosecutorial misconduct. He asserts in particular that the prosecutor
improperly commented on his post-Miranda silence and attempted to
provoke a mistrial. When a defendant objects to alleged misconduct, as
McKeever did, we review each instance of alleged misconduct for harmless
error, State v. Martinez, 230 Ariz. 208, 214, ¶ 25 (2012), and consider the
cumulative effect of the alleged misconduct. State v. Morris, 215 Ariz. 324,
335, ¶ 47 (2007). We will reverse based on 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. Anderson, 210 Ariz. 327, 340, ¶ 45 (2005)
(citation omitted). To establish the second prong, 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. Hughes, 193 Ariz. 72, 79, ¶ 26 (1998) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974)).




1     Absent material revisions after the relevant date, we cite a statute’s
current version.

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                          STATE v. MCKEEVER
                           Decision of the Court

I.    The prosecutor’s questioning on redirect.

¶10          McKeever argues that the prosecutor improperly tried to
provoke a mistrial by repeatedly referring to McKeever’s post-arrest
interview, which had not been admitted in evidence. We disagree.

¶11           Before beginning her redirect examination of the
investigating detective, the prosecutor indicated her intent to introduce
evidence of the post-arrest interview to rebut defense counsel’s line of
questioning during cross-examination. Defense counsel objected, and the
court ruled that “at this time” the interview would not be allowed into
evidence because “direct would have been the best time for it.”

¶12            On cross-examination, defense counsel had asked the
detective whether she obtained any fingerprint or DNA evidence. During
redirect examination, the prosecutor asked the detective why she had failed
to look for fingerprints at D.C.’s home. The detective began to respond that
fingerprints were unnecessary because McKeever had admitted (in his
interview) to being on the property, and McKeever’s counsel objected and
moved for a mistrial. Counsel argued that the prosecutor was intentionally
violating the court’s evidentiary ruling and attempting to introduce the
interview. The court denied the motion, stating that the prosecutor’s
questioning was appropriate in light of defense counsel’s questions on
cross-examination, and the court reiterated that the prosecutor would not
be allowed to place the interview in evidence.

¶13           McKeever argues that the prosecutor’s questioning was
designed to force a mistrial so there would be a second chance to introduce
the interview on direct examination. But the prosecutor’s question was
appropriate because defense counsel, by asking whether the detective
secured fingerprint or DNA evidence, opened the door to questioning as to
why such evidence was not secured.

¶14            In State v. Kemp, 185 Ariz. 52, 60–61 (1996), the Arizona
Supreme Court rejected an argument similar to that raised here. Defense
counsel in that case questioned a detective to elicit responses that “no
evidence” connected the defendant to the crime, even though defense
counsel knew the detective had interviewed a co-defendant, who had
implicated the defendant. Id. at 60. Although the co-defendant’s interview
had been precluded as inadmissible hearsay, the Supreme Court ruled that
the superior court properly allowed the prosecutor a “limited line of
inquiry” to rebut the inference that no evidence connected the defendant to
the crime. Id.



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                          STATE v. MCKEEVER
                           Decision of the Court

¶15           Here, defense counsel’s questioning regarding fingerprint
and DNA evidence implied a lack of evidence tying McKeever to the crime.
When defense counsel cross-examined the detective, counsel knew why the
detective had not obtained fingerprint or DNA evidence. Thus, the
superior court properly allowed redirect examination regarding why the
detective did not secure forensic evidence.

II.   The prosecutor’s questioning following a jury question.

¶16           After the prosecutor finished her redirect examination of the
detective, the jury asked whether McKeever had admitted taking the
property. Although defense counsel objected to the question, the court
allowed it, noting that the only basis for not admitting the post-arrest
interview into evidence was the State’s failure to introduce it during direct
examination. The court also noted that any follow-up questioning of the
detective regarding the jury question could open the door to additional
information detailed in the interview.

¶17           After defense counsel questioned the detective regarding the
jury question, the prosecutor asked the detective additional questions,
including where the property in the SUV came from, whether McKeever
admitted to being on the property, and whether the detective could recall if
McKeever indicated what property was in the SUV. When the detective
had difficulty remembering, the prosecutor asked if anything would refresh
her recollection, to which the detective replied that seeing the interview
would do so. McKeever’s counsel again objected and moved for a mistrial,
which the court denied. The prosecutor did not ask any further questions
or use the interview to refresh the detective’s memory, and instead rested
her case.

¶18           The prosecutor’s questioning was not misconduct. The
superior court allowed the line of inquiry over objections from McKeever’s
counsel because the questions were related to the jury’s question.
Moreover, once the detective had difficulty remembering information
relating to McKeever’s arrest, the detective could have been shown the
interview to refresh her memory, see Ariz. R. Evid. 612, even though the
transcript had not been admitted into evidence. See State v. Hall, 18 Ariz.
App. 593, 596 (App. 1972) (noting that “all that is necessary” is that the
object serves to revive the witness’s recollection). Accordingly, the
prosecutor’s questioning in response to the jury’s question was not
misconduct.




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                           STATE v. MCKEEVER
                            Decision of the Court

III.   The alleged comments on post-Miranda silence.

¶19           McKeever argues that the prosecutor improperly impeached
him with his post-Miranda silence. An accused has the constitutional right
to remain silent, see U.S. Const. amend V, and this right is violated if the
prosecutor attempts to impeach the defendant with his post-Miranda
silence. State v. Mauro, 159 Ariz. 186, 197 (1988) (citing Doyle v. Ohio, 426
U.S. 610 (1976)). But this constitutional right is not implicated when a
defendant waives his rights by answering questions after warnings have
been given. State v. Henry, 176 Ariz. 569, 580 (1993).

¶20           After being advised of his Miranda rights, McKeever told the
detective that an acquaintance had picked him up from his house and taken
him to D.C.’s property to look for scrap metal. McKeever further stated he
was “an idiot for being there.” Although he denied ever being in the house,
McKeever acknowledged taking items strewn about the property.

¶21           When McKeever testified at trial, he gave a different version
of events. He stated that he and his acquaintance met up at a third party’s
house and had been hanging out with two women named Jojo and Fran.
He claimed that he and his acquaintance planned on meeting the women at
the property, that he was told en route that Jojo owned the property, and
that while they were waiting for the women they looked around for scrap
metal.

¶22          On cross-examination, the prosecutor asked McKeever why
he had not mentioned the plan to meet with the women at the property or
Jojo’s ownership of the property during his interview with the detective.
After McKeever testified, the prosecutor recalled the detective as a rebuttal
witness, discussed McKeever’s interview, and moved to have the taped
interview admitted as impeachment evidence against him. The judge
granted the motion and admitted the interview, which was played for the
jury. During closing argument the prosecutor asserted that McKeever had
changed his story, noting the differing reasons McKeever gave for being on
the property at trial versus during his post-arrest interview.

¶23           McKeever contends that the prosecutor’s questioning during
cross-examination and her statements during closing argument were
improper because McKeever was entitled to “not tell part of his story”
during the interview and rely on the implicit promise that he was protected
under his right to remain silent.

¶24          McKeever never invoked his right to silence and instead
chose to answer all of the detective’s questions, in the process providing the


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                          STATE v. MCKEEVER
                           Decision of the Court

detective with a different story than he ultimately would describe at trial.
The State is not precluded from emphasizing inconsistencies between a
defendant’s trial testimony and his post-Miranda statements to the police.
See Anderson v. Charles, 447 U.S. 404, 408 (1980) (holding that when a
prosecutor inquires into prior inconsistent statements, there is “no unfair
use of silence because a defendant who voluntarily speaks after receiving
Miranda warnings has not been induced to remain silent”). Thus, the
prosecutor’s questions and closing argument did not comment on any post-
Miranda silence, but rather revealed the inconsistencies between
McKeever’s two stories.

                             CONCLUSION

¶25           For the foregoing reasons, we affirm McKeever’s conviction
and sentence.




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