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View Case Details
 
STATE OF ARIZONA Appellee
vs.
EDWARD PALENKAS Appellant.
 
Case:
1 CA-CR 95-0752
 
Location:
COURT OF APPEALS OF ARIZONA DIVISION ONE DEPARTMENT D
 
Date:
November 5 1996 Filed
 
Attorneys:
] It did not appear to be. We approached the bench at that time. That's when you cautioned her. We then went into this new topic about what happened when the police arrived and that's when I came up to the bench and moved for a mistrial.
(Emphasis added.) Court did not reconsider its denial of defendant's motion for a mistrial.
*fn6 The conviction in Wilson was otherwise reversed on the basis of an improper jury instruction. Nevertheless we addressed the remaining issues so they would not arise at retrial and stated:
Just as it is generally impermissible for a prosecutor to comment on a defendant's invocation of his Fifth Amendment right to silence State v. Still 119 Ariz. 549 551 582 P.2d 639 641 (1978) so it is generally impermissible to use a defendant's invocation of his Fourth Amendment protections against him United States v. Prescott 581 F.2d 1343 1351 (9th Cir.1978).
Wilson 185 Ariz. at 258 914 P.2d at 1350.
*fn7 We overturn convictions for prejudicial error not to punish prosecutors for improper comments. United States v. Mazzone 782 F.2d 757 763 (7th Cir.) cert. denied 479 U.S. 838 93 L. Ed. 2d 84 107 S. Ct.141 (1986). As noted by the Mazzone court "It is better to punish the prosecutor directly; there is no lack of direct sanctions for lawyer's misconduct of which improper advocacy is a well-recognized species." Id. citing United States v. Young 105 U.S. 1038 1043-44 (1985).
 
Court:
I'm not sure that was the time that [the prosecutor] was talking about.
 
Author:
The Hon. Justice Edward C. Voss
 

Edward Palenkas ("defendant") appeals from his convictions after a jury trial of one count of reckless manslaughter and one count of leaving the scene of a fatal injury accident. The only issue we address in this opinion *fn1 is whether the prosecutor's use of defendant's invocation of his constitutional right to refuse a warrant less search and the fact that he contacted his Counsel as evidence of guilt deprived him of due process and requires a new trial. Because we find that the prosecutor's conduct not invited by defendant resulted in prejudicial fundamental unfairness that violated defendant's right to due process we reverse and remand for new trial.

FACTS AND PROCEDURAL HISTORY

We view the facts in the light most favorable to sustaining the jury's verdicts. See State v. Atwood 171 Ariz. 576 596 832 P.2d 593 613 (1992) cert. denied 506 U.S. 1084 122 L. Ed. 2d 364 113 S. Ct.1058 (1993).

A. The Hit-and-Run

The charges against defendant arise from a fatal hit-and-run accident in Scottsdale on the evening of April 12 1994. At approximately 7:40 p.m. the victim an 11 year-old-boy and his father were walking along the roadside of Frank Lloyd Wright Boulevard facing oncoming traffic. The road had no sidewalk in this area. While walking along the roadside the victim and his father approached some dirt mounds created by the recent digging of a trench for gas pipelines. The trench extended across the road where it was covered by metal plates. The metal plates ended at the shoulder of the road however leaving the trench exposed. Thus to cross the trench pedestrians had to walk around the piles of dirt into the roadway. The victim and his father walked around the mounds in the direction of the street and then returned to the shoulder of the road. As the two continued walking the father noticed an approaching car "weaving" and "driving very close on the inside of the road. "The car left the road and briefly traveled along the dirt shoulder. The victim's father testified at trial that the car "erratically changed its direction" as it passed him and that it then struck the victim. The force of the impact threw the victim's body approximately 65 to 70 feet back onto one of the mounds of dirt. The victim's father observed the car which was followed by another car continue to a nearby intersection. The car stopped at the intersection and then drove on. The victim died at the scene.

B. The Investigation

Relying on the father's description of the vehicle as "a dark-colored full-size vehicle possibly four-door with tinted windows " the Scottsdale Police Department initially issued an attempt to locate a vehicle matching that description and having damage to the right front portion of the car. However paint chips removed from the victim's body and clothing and amber lens fragments collected from the accident scene soon led the police to believe that the vehicle that struck the victim was in fact a 1984 or newer cream-colored Rolls Royce or Bentley. After obtaining a list of registered owners of cars matching this description from the Department of Motor Vehicles the police began contacting owners at their homes to request permission to view their vehicles. In pursuing this investigation Scottsdale police detectives Tom Vanmeter and Don Bellendier contacted defendant at his home on the evening of April 13 slightly more than 24 hours after the incident occurred. Defendant owned a 1986 magnolia-colored Rolls Royce Silver Spur. The detectives informed defendant that they were investigating a collision involving the death of an 11 year-old-boy and asked to see his Rolls Royce. Defendant responded "I don't think that I can do that." At trial defendant explained that he had refused consent because he was waiting for a return phone call from his lawyer about how to proceed.

The detectives subsequently obtained a warrant to search defendant's residence and the warrant was executed the next day. The right front portion of defendant's car revealed damage consistent with striking the victim.

C. Defendant's Version of the Events

The evidence introduced at trial revealed that on the evening of the accident defendant dined with his close friend Robert Davis at the Reata Pass Steak house in Scottsdale a restaurant that the two men frequented. Defendant and Davis arrived at the restaurant in separate cars. Defendant testified that he consumed two mixed drinks while at the restaurant and that he consumed no other alcohol that evening. Testimony from employees at the restaurant however indicated that defendant's speech was slurred and slower than usual that his face was flushed and that his coordination was somewhat impaired. The evidence also revealed that defendant slipped or stumbled on a ramp when leaving the restaurant and out of concern that defendant might have been "buzzed " the restaurant's bartender who knew defendant well twice asked whether defendant wanted to give him his keys so that he could drive him home. Defendant indicated that he was fine but then told Davis to follow him home.

While driving home from the restaurant defendant struck and killed the victim. Although defendant observed the obvious damage to his car when he arrived home that evening he testified that he believed the damage was caused by striking some construction equipment or by hitting an object possibly thrown through the air after being struck by a "dark vehicle" traveling in front of defendant's Rolls Royce. Defendant telephoned Bob Davis later that night informed him about the damage to his vehicle and asked whether Davis had seen him hit a barricade. Davis indicated that he had not seen defendant's car hit anything.

Defendant telephoned Davis again the next morning to tell him that he had seen a news report on television about the hit-and-run accident on Frank Lloyd Wright Boulevard. Davis testified that defendant commented "We came through there approximately the same time and . . . it could have been me that hit the boy."

D. Procedural History

A Maricopa County Grand Jury indicted defendant on April 21 1994 charging him with one count of manslaughter and one count of leaving the scene of a fatal accident. At trial defendant did not contest the state's evidence linking his vehicle to the hit-and-run. Rather his defense was that the victim's death was a tragic accident which he could neither have foreseen nor avoided.

The jury convicted defendant on both counts of the indictment. The trial court sentenced defendant to presumptive terms of ten and one-half years for the manslaughter conviction and one and one-half years for leaving the scene of a fatal accident to run concurrently. Defendant timely appealed.

DISCUSSION

I.

DEFENDANT'S INVOCATION OF HIS CONSTITUTIONAL RIGHTS INTRODUCED AS EVIDENCE OF GUILT AT TRIAL

A. Defendant's Motion in Limine

Several months before trial defendant filed a motion in limine requesting that Court preclude the state from "introducing evidence through any means that comments on or infers the defendant's consultation with Counsel and his refusal to grant consent to a search and seizure of evidence at his residence." *fn2 The state did not object to the motion in limine and informed Court "Obviously we've conceded those issues." *fn3 Court then granted defendant's motion ruling as follows:

It's ordered granting the motion in limine regarding comments on invocation of rights right to Counsel and the similar motion to suppress evidence. . . .

B. Testimony in Violation of the Motion in Limine

At trial the state called Thomas Vanmeter and Don Bellendier the Scottsdale Police Department detectives who contacted defendant at his residence the night after the incident. The prosecutor first questioned Detective Vanmeter:

Q:

Did you ask the Defendant if you could look at his car?

A:

Detective Bellendier did.

Q:

And what was the Defendant's response to that?

A:

I don't have it. I have not read Detective Bellendier's report. But it was basically "No." (Emphasis added.) The prosecutor then questioned Detective Bellendier on the same issue:

Q:

Did you tell the Defendant that you wanted to look at his car at some point?

A:

While we were standing out front we stated that we would like to look at it. Then when we walked inside we again stated that.

Q:

And did you then follow the Defendant somewhere after that?

A:

He had asked us to come into the house.

Q:

Did he tell you prior to you following him into the den that he was going to allow you to look at the car?

A:

No.

Q:

And when you went into the den you indicated that -- you asked the Defendant again if you could look at his car. Is that right?

A: Yes.

Q:

And what did he say to you at that time?

A:

He stated that he didn't think he could do that.

Q:

Did you ask the Defendant immediately after that any questions?

A:

Yes.

Q:

What did you ask him?

(Whereupon a discussion at the bench took place.)

Q:

And did you talk with your lawyer that day sir?

A:

Excuse me?

Q:

Did you talk with your lawyer that day?

A:

Yes I did.

Q:

And that was Mr. Jackson?

A:

Yes.

Q:

And after you spoke with your lawyer you still didn't go to the police and report this information about this dark car; is that right?

A:

No I didn't.

Q:

Did you speak with any other lawyers that day sir?

A:

Not until much later until after the police came.

Q:

Prior to the time the police arrived did you speak with any other lawyers besides Mr. Jackson?

A:

No I did not.

The prosecutor then questioned defendant regarding his response to the police detectives' request to see his Rolls Royce:

Q:

And after they asked you if they could look at your car you said "No I don't think I can let you do that " is that correct sir?

A:

I told them I wanted to call my Counsel first. He was supposed to get back with me and he never did.

Q:

Sir wasn't the evidence that you heard at trial from the police officers that they asked you if they could look at your Rolls-Royce not once but twice and you said to them "No I don't think I can let you do that." Isn't that right sir?

A:

I might have told them I can't let them look at it until I talk to my Counsel.

Q:

So you basically -- at that point in time you basically refused to let the police look at your car correct?

A:

Until I talked to my lawyer.

(Emphasis added.) Defense Counsel again objected and a bench conference ensued after which the trial court sustained defense Counsel's objection "on the basis that [the question has] been asked and answered." Later that day defense Counsel made a record indicating that he had moved for a mistrial during the bench conference because the prosecutor's questioning of defendant had an "impact upon [defendant's] assertion of his Constitutional Rights." The trial court again denied defendant's motion for mistrial.

C. Prosecutorial Comments

During closing argument the prosecutor returned to the issues of defendant's contact with an Counsel and his refusal to consent to a search:

[The detectives] asked to look at the defendant's Rolls-Royce. He didn't ask them why. He simply turned around he walked into the house they followed him in there followed him into his study. They ask him again when they got into the study "I'd like to look at your car." And the defendant at that point said to them "I don't think I can do that."

[Defendant] didn't call the police then and report [that he had seen a dark car at the scene] he called his lawyer. And you know why because he knew he was the one who hit that boy. He knew he was involved in the death of [the victim]. He knew that there wasn't any dark car. He was concerned at that point about one thing protecting himself. He was concerned about not being arrested by the police. And that's why he called his lawyer. And that's why he didn't call the police at that time. And when the police asked to look at his car instead of saying "Well of course Officer of course you can look at my car. I don't have anything to hide " what did he say? He said "I don't think I can let you do that." Now why is it that someone a reasonable person would behave the way the defendant behaved that evening. You know . . . this is the defense the defense raised this. Someone who has a defense would put [it] it is a good person who simply had a bad thing happen to them. . . . A reasonable person a responsible person a good person wouldn't do that a person who had nothing to hide wouldn't do those things.

And that's the big problem with the defense in this case. The defendant's later actions are simply inconsistent with the defense. The defendant did not act reasonably. And that's because he had something to hide. . . .

Now the defense -- I think that their theme was that [bad] things happen to [good] people. And again all of that is inconsistent with the facts you've heard in this case. Because a good person would have acted differently from the way the defendant behaved. . . .

Good people help the police in pursuing an investigation of this type. They don't frustrate the police by requiring them to get a search warrant to find evidence of a crime. Good people take responsibility for their actions. (Emphasis added.)

II. THE DUE PROCESS VIOLATION

On appeal defendant argues that the prosecutor's use of defendant's invocation of his constitutional right to refuse to consent to a warrantees search and the fact that he contacted his Counsel as evidence of his guilt deprived him of due process and requires a new trial. The state responds (1) that defendant waived any arguments regarding his refusal to allow the police to search his car; (2) that any error was invited because defendant testified on direct examination about his refusal to consent to a search and his attempts to contact his Counsel; (3) that no constitutional error occurred because defendant's right to Counsel did not attach until the state initiated formal criminal proceedings; and (4) that any error was harmless beyond a reasonable doubt in any event. We address each of these contentions in turn.

A. Waiver

We first reject the state's argument that defendant waived his objection to evidence that he refused to consent to the warrantees search by not objecting when the first officer testified. Defendant had already moved for and been granted an order precluding admission of this testimony. A motion in limine preserves for appeal any objection therein. See State v. Burton 144 Ariz. 248 250 697 P.2d 331 333 (1985); State v. Lujan 136 Ariz. 326 328 666 P.2d 71 73 (1983). Furthermore defendant made several objections throughout the trial to admission of this evidence. He also moved for mistrial on this basis. *fn5 Additionally the issue was raised in defendant's motion for a new trial. Under these circumstances we find no waiver on this record.

B. Invited Error

The state also argues that the testimony defense Counsel elicited from defendant on direct examination about his contact with his Counsel "invited" the error he now alleges as a result of the state's cross-examination on this subject. In overruling defendant's objection to this evidence the trial court concluded that the subject that defendant "consulted with Counsel and when and with whom has become relevant because the defense has made it so."

We have previously held that the doctrine of invited error applies to a prosecutor's comments on a defendant's invocation of the fifth amendment right to remain silent as well as a defendant's invocation of his fourth amendment protections. State v. Wilson 185 Ariz. 254 258 914 P.2d 1346 1350 (App. 1995); see also State v. Crumley 128 Ariz. 302 305 625 P.2d 891 894 (1981). We conclude that it is appropriate for us to review the invited error exception to the admission of otherwise inadmissible evidence in this case.

Invited error occurs when "evidence adduced or comments made by one party make otherwise irrelevant evidence relevant or require some response or rebuttal." Wilson 185 Ariz. at 258 914 P.2d at 1350 citing State v. Woods 141 Ariz. 446 455 687 P.2d 1201 1210 (1984). The state argues that its elicitation of defendant's testimony about his contact with his Counsel was justified by defendant's own testimony about that subject during his direct examination. However the state fails to recognize that defense Counsel's purpose in eliciting that testimony on direct examination was to explain defendant's refusal to consent to a search of his car which the prosecution had elicited from the two police officers in its case-in-chief in violation of the in limine order precluding such testimony. Under similar circumstances involving testimony about a defendant's assertion of his right to remain silent we have concluded that invited error did not occur:

This is a novel proposition -- that the State having deliberately created constitutional error during its case-in-chief somehow renders that error harmless by cross-examining the defendant on the same subject. Although we can see from the record that the prosecutor's cross-examination of Appellant was in response to questions his Counsel asked the backup officer regarding the meaning of the Miranda warnings the fact that Appellant's Counsel asked some questions about this subject does not excuse the previous deliberate error by the prosecution. We do not agree that the State can create deliberate constitutional error then save the conviction by arguing that the error became harmless when Appellant's Counsel asked a few questions to try to minimize the damage.

State v. Keeley 178 Ariz. 233 236 871 P.2d 1169 1172 (App. 1994)(emphasis added). Likewise in this case defendant's testimony on direct examination did not "invite" error; it merely responded to it. His testimony about his attempts to contact his Counsel was necessary to explain the state's prior evidence elicited in violation of the in limine orders of his refusal to consent to a search. Under these circumstances we conclude that no invited error occurred that would justify the prosecution's conduct in this case.

C. Constitutional Error

As a preliminary matter we address the state's contention that defendant had no sixth amendment right to Counsel to assert during the preliminary police investigations. We agree. See United States v. Gouveia 467 U.S. 180 189 81 L. Ed. 2d 146 104 S. Ct.2292 (1984)(sixth amendment right to Counsel does not attach until the government initiates adversarial judicial criminal proceedings). However defendant is not alleging a violation of his sixth amendment right to Counsel in this case nor is he alleging that his fourth amendment rights were violated by an unlawful search or seizure. Defendant's argument is that his rights to due process under the fifth and fourteenth amendments were violated by the witness testimony and Prosecutorial comments concerning his contact with his Counsel and his assertion of his fourth amendment rights in refusing to consent to a warrantees search.

The United States Supreme Court has found that due process is violated when a defendant's assertion of his right to remain silent is introduced at trial as evidence of his guilt because the exercise of a constitutional right is "insolubly ambiguous." Doyle v. Ohio 426 U.S. 610 617 49 L. Ed. 2d 91 96 S. Ct.2240 (1976). Although the Supreme Court has not addressed whether due process is violated by admission of evidence of either a defendant's invocation of his fourth amendment right to refuse to a warrantees search or his decision to meet with Counsel before his arrest many other jurisdictions have addressed those issues and have found a due process violation occurs under circumstances similar to those in this case. E.g. United States v. Thame 846 F.2d 200 206 (3d Cir.)(error for the prosecutor to argue that defendant's refusal to consent to search of his bag constituted evidence of his guilt) cert. denied 488 U.S. 928 102 L. Ed. 2d 333 109 S. Ct.314 (1988); United States v. Prescott 581 F.2d 1343 1351 (9th Cir.1978)("passive refusal to consent to a warrantees search is privileged conduct which cannot be considered as evidence of wrongdoing"); United States v. Taxe 540 F.2d 961 (9th Cir.1976)(prosecutor's comments on defendants' refusal to consent to a search of their trucks was "misconduct" but harmless under circumstances); United States v. Rapanos 895 F. Supp.165 168 (E.D. Mich. 1995)(error to insinuate that defendant's refusal to consent to warrantees entry onto his land was evidence of concealment of a crime); Padgett v. State 590 P.2d 432 434 (Alaska 1979)(right to refuse to consent to warrantees search of car "would be effectively destroyed if when exercised it could be used as evidence of guilt"); Sizemore v. Fletcher 921 F.2d 667 671 (6th Cir.1990)(prosecutor "may not imply that an accuser's decision to meet with Counsel even shortly after the incident giving rise to a criminal indictment implies guilt"); United States v. McDonald 620 F.2d 559 563-64 (5th Cir.1980)(constitutional error "to attempt to prove a defendant's guilt by pointing ominously to the fact that he has sought the assistance of Counsel"); United States v. Yeager 476 F.2d 613 616 (3d Cir.1973)(prosecutor's comment that defendant called his Counsel the morning after the incident constitutional error).

One of the most analogous situations to the circumstances of this case was recently before the federal district court in United States v. Rapanos 895 F. Supp.165 (E.D. Mich. 1995). In that case the defendant was charged with knowing discharge of pollutants into federal wetlands. On cross-examination at trial the prosecutor asked the defendant about his refusal to allow warrantees entry onto his land by state environmental officers:

Q: . . . Again you had not let the DNR on the property?

A: [My Counsel] told them just point blank you will not be allowed on the property.

Q: And you agreed with that?

A: He said you cannot go on the property without a search warrant I think.

Q: Since you were certain in your own mind that there were no wetlands there why not let the DNR on the property?

A: It's not my decision.

Q: Were you practicing concealment again?

A: They could get a search warrant . . . and they could go out there the next day if they wanted to. . . . They know the procedure. . . .

Q: So you were practicing concealment or not?

Q: So you weren't willing to say don't worry I have nothing to hide let them on?

A: I don't think that ever came up.

Q: All right. And as a client you have the ability to do that; right? To say to your Counsel look go ahead let them on?

A: I learned a long time ago that if you don't take your Counsel's advice you shouldn't have him . . . .

Q: So the bottom line is though you knew that you could talk to him about that and try to convince him to do that and you chose not to?

A: It didn't happen.

Id. at 167. In reversing this case for a new trial after finding "plain error " the Rapanos court noted the following "troublesome" factors: first the prosecutor's questions were not only elicited during defendant's own testimony but insinuated an argument that defendant's refusal to consent to a warrantees entry onto his property constituted concealment of incriminating evidence. The fact that defendant was asked why he hadn't convinced his Counsel to waive his fourth amendment rights was analogous to the reversible error in Doyle v. Ohio where the prosecutor asked the defendant to explain his silence at the time of his arrest. Id. at 168. Court also found that the jury may have been overly influenced by this inference of guilt in Rapanos' case because the evidence of defendant's guilt was not overwhelming and "a reasonable jury could have rendered either verdict. . . . In such a situation an unchecked prejudicial comment may have indeed tipped the scales in favor of conviction." Id. at 169. Thus the error required reversal and a new trial. Id. at 170.

Additionally this court has previously addressed the issue in dictum. Wilson 185 Ariz. at 258 914 P.2d at 1350. *fn6 We now address the question directly on the merits.

We can see no valid distinction between the privilege against self-incrimination and the right to be free from warrantees searches when invoked that would justify a different rule about inadmissibility as evidence of guilt. In Prescott the ninth circuit found the assertion of these rights indistinguishable:

Because the right to refuse entry when the officer does not have a warrant is equally available to the innocent and the guilty just as is the right to remain silent the refusal is as "ambiguous" as the silence was held to be in United States v. Hale [422 U.S. 171 176-77 45 L. Ed. 2d 99 95 S. Ct.2133 (1975)]. Yet use by the prosecutor of the refusal of entry like use of the silence by the prosecutor can have but one objective: to induce the jury to infer guilt. In the case of silence the prosecutor can argue that if the defendant had nothing to hide he would not keep silent. In the case of the refusal of entry the prosecutor can argue that if the defendant were not trying to hide something or someone . . . she would have let the officer in. In either case whether the argument is made or not the desired inference may be well drawn by the jury. This is why the evidence is inadmissible in the case of silence. . . .It is also why the evidence is inadmissible in the case of a refusal to let the officer search.581 F.2d at 1351-52 (citations omitted). In either situation we believe that a defendant's invocation of constitutional rights is probative of nothing except the defendant's awareness of his or her constitutional rights.

Similarly any inference that a suspect's pre-arrest decision to contact an Counsel is evidence of guilt is also unwarranted:

. . . A prosecutor may not imply that an accuser's decision to meet with Counsel even shortly after the incident giving rise to a criminal indictment implies guilt. Neither may she suggest to the jury that a defendant hires an Counsel in order to generate an alibi "take[] care of everything" or "get [his] story straight." Such statements strike at the core of the right to Counsel and must not be permitted.

Sizemore v. Fletcher 921 F.2d at 671; see also Yeager 476 F.2d at 616-17 (prosecutor's comment about defendant's consultation with Counsel one day after incident "would appear to be directed to and may have had the effect of raising in the juror's minds the inference that [defendant] was or at least believed himself to be guilty").

We conclude that the prosecution's references to defendant's invocation of his fourth amendment rights to refuse to consent to a warrantees entry and to his contact with an Counsel prior to his arrest violated defendant's due process rights to a fair trial. The state's purpose in eliciting this evidence clearly was "to induce the jury to infer guilt" from defendant's actions. Prescott 581 F.2d at 1352. This purpose is plainly apparent from the egregious comments in the state's closing arguments. Regarding defendant's refusal to consent to the search the state impermissibly argued:

Good people help the police in pursuing an investigation of this type. They don't frustrate the police by requiring them to get a search warrant to find evidence of a crime.

Regarding defendant's contact with his Counsel the state impermissibly argued:

[Defendant] called his lawyer. And you know why because he knew he was the one who hit that boy. He knew he was involved in the death of [the victim]. He knew that there wasn't any dark car. He was concerned at that point about one thing protecting himself. He was concerned about not being arrested by the police. And that's why he called his lawyer.

We conclude that these comments were highly improper in at least two respects. First they directly violated the in limine order. *fn7 Second they violated defendant's due process rights to a fair trial by creating an inference that defendant's invocation of constitutional rights was evidence of his guilt.

D. Harmless Error

Having found a constitutional due process violation we next turn to the question whether the error was of sufficient prejudice to require a new trial. Error is "harmless" when it can be said beyond a reasonable doubt that it did not contribute to or affect the verdict. State v. Krone 182 Ariz. 319 321 897 P.2d 621 623 (1995).

Some courts have held that when the prosecution's reference to a defendant's invocation of his constitutional rights does not "strike at the jugular" of defendant's version of the events the error is harmless. See Stone v. Estelle 556 F.2d 1242 1245 (5th Cir.1977)("the relevant distinction to be made . . . is between a case involving an attack on a defendant's exculpatory story and an attack on his behavior subsequent to the alleged crime for which he is being tried") cert. denied 434 U.S. 1019 54 L. Ed. 2d 767 98 S. Ct.742 (1978). In Stone for example Court found harmless the prosecutor's comment on defendant's request to contact an Counsel because it did not address the core of his defense that the victim had been accidentally not deliberately shot. Id. at 1245-46.

The central issue at trial in this case was defendant's state of mind at the time of the offenses. Defendant did not contest that his car hit the victim. However as to the manslaughter charge he contended he did not act "recklessly" in driving the car. See A.R.S. SEC. 13-1103(A)(1). As to the charge of leaving the scene of a fatal injury accident he contended he did not have the requisite "knowing" mental state that an accident had occurred. See A.R.S. SEC. 28-661. On appeal the state argues that even if error the Prosecutorial comments at trial were harmless because they were not relevant to any "essential element" of these offenses but rather were evidence only of defendant's state of mind after the offenses had already occurred. However the context in which defendant's invocation of his fourth amendment rights and conversations with his Counsel were argued in closing arguments indicates the state's intent to use this evidence to rebut defendant's defense that he did not drive recklessly and that he did not know he was involved in an accident the night of the incident. Therefore we do not apply the Stone reasoning in this case to find the error harmless.

Another approach to the question of harmless error under similar circumstances is to examine a number of factors to determine whether defendant was prejudiced. First was defendant forced to defend his invocation of constitutional rights through his own testimony? If the error occurred solely in closing comments which the jury is advised are not evidence the prejudice might be less. See Rapanos 895 F. Supp. at 168. Second were the comments "moderate in tone and import " and lacking significance when considered with the overall evidence? See People v. Redmond 29 Cal. 3d 904 633 P.2d 976 979 176 Cal. Rptr.780 (Cal. 1981). Third to what degree did the remarks complained of "have a tendency to mislead the jury and to prejudice the accused?" Sizemore v. Fletcher 921 F.2d at 671. Fourth were the comments "deliberately or accidentally placed before the jury?" Id.; see also Keeley 178 Ariz. at 236 871 P.2d at 1172 (to find a deliberate error harmless "would just encourage similar constitutional error in the future"); State v. Sorrell 132 Ariz. 328 330 645 P.2d 1242 1244 (1982)(appellate courts are reluctant to find error harmless "when it appears that the error was deliberate and willful"). Fifth what was the strength of the proof introduced to establish defendant's guilt; was it otherwise overwhelming or was it disputed circumstantial evidence that made defendant's credibility a factor? See Yeager 476 F.2d at 616-17.

Applying these factors to this case we cannot conclude the error was harmless beyond a reasonable doubt. First this case did not involve just a single innocuous reference by a witness to defendant's assertion of constitutional rights; rather the subject was elicited many times through three witnesses including defendant's own testimony. Second the inference of guilt from this evidence was strongly argued in the prosecutor's closing comments despite numerous prior defense objections to this evidence and despite a pretrial in limine order and could hardly be considered "moderate in tone and import." Third the argument that defendant was guilty because he did not consent to a warrantees search or because he consulted an Counsel certainly could mislead the jury and prejudice defendant's defense. Fourth we can find no "accidental" placing of these facts before the jury under the facts of this case. This was a deliberate attempt by the prosecution to establish guilt at the time of the offense from defendant's constitutionally-permissible conduct after the incident. Fifth we do not find the evidence otherwise so overwhelming in this case that we could say beyond a reasonable doubt that the error did not affect the verdict. Defendant's credibility about his state of mind on the night of the accident was a central issue to his defense. A great deal of the evidence in this case was circumstantial and conflicting. There was disputed testimony regarding the lighting visibility road conditions and state of the construction site at which the incident occurred.

The extent of defendant's alcohol consumption and impairment was disputed. Our review of the evidence cannot compel us to reach the conclusion that the constitutional error that occurred in this case was harmless beyond a reasonable doubt. Accordingly we must reverse the convictions and remand this matter for a new trial.

CONCLUSION

 
Notes:

*fn1 By separate unpublished decision filed this date we address the remaining issues raised by defendant on appeal because they are likely to arise again upon retrial. Those issues are not relevant to our analysis in this opinion. See Fenn v. Fenn 174 Ariz. 84 85 847 P.2d 129 130 (App. 1993).

*fn2 The Arizona Supreme Court has held that in the criminal context a motion in limine "is nothing more than a motion to suppress specifically authorized by Rule 16 Arizona Rules of Criminal Procedure." State v. Rodriguez 126 Ariz. 28 30 612 P.2d 484 486 (1980).

*fn3 3 The state argues on appeal that its "concession" was limited to preclusion of references to defendant's contact with his Counsel. Although that is the only issue conceded in the state's written response to defendant's motion in limine the state did not otherwise object to the preclusion of references to defendant's refusal to consent to a warrant less search of his car and the prosecutor clearly conceded "those issues" in open court when asked if she had any objection to the motion. We therefore reject the state's position that the court's in limine ruling was limited to evidence of defendant's contact with his Counsel.

*fn4 Our courts have previously disapproved the practice of holding unrecorded bench conferences on trial motions. See State v. Fletcher 149 Ariz. 187 189 717 P.2d 866 868 (1986). In this case however we cannot fault defense Counsel for the lack of a contemporaneous record because the trial court precluded speaking objections and indicated that "because Courtrooms are so small and we're so close to the jury unfortunately we can't make a simultaneous record what's stated at the bench conference. So what I do is make a ruling there tell you guys about it if anyone wants to make a record on it later we go back and do that."

*fn5 After the trial court denied his motion for a mistrial defense Counsel made a further comment to clarify his objection on the record: