State v. Dompkowski

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JAKE PETER DOMPKOWSKI, Appellant.

No. 1 CA-CR 20-0113
FILED 12-10-2020

Appeal from the Superior Court in Yavapai County
No. V1300CR201880257
The Honorable Michael R. Bluff, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By David R. Cole
Counsel for Appellee

Law Offices of Stephen L. Duncan PLC, Scottsdale
By Stephen L. Duncan
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Kent E. Cattani joined.

B A I L E Y, Judge:

¶1 Jake Peter Dompkowski challenges the trial court’s ruling on
his claim of prosecutorial misconduct and his motion for a mistrial. He asks
this court to reverse his convictions and remand for a new trial. For the
following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In April 2018, then-patrol deputy Erik Trahin responded to a
call involving Dompkowski. When Trahin arrived, he contacted
Dompkowski, and soon thereafter he was directed via radio to arrest
Dompkowski for a separate incident. When Trahin searched Dompkowski
incident to arrest, he discovered a container holding two baggies, one
containing methamphetamine and the other containing heroin.

¶3 The State indicted Dompkowski for possession or use of a
dangerous drug (methamphetamine), a class four felony; two counts of
possession of drug paraphernalia, a class six felony; and possession of a
narcotic drug (heroin), a class four felony. The State also alleged
Dompkowski’s three prior convictions as aggravating factors.

¶4 At trial, Dompkowski argued primarily that the chain of
custody for the seized baggies was deficient. The State called only two
witnesses in its case-in-chief, Trahin and the forensic scientist who
examined the contents of the baggies. During direct examination, the State
asked Trahin whether, based on his training and experience, he recognized
that the baggies contained methamphetamine and heroin. Trahin
responded yes, and later, when the State asked about the chain of custody
for the baggies, it asked, “[a]nd what do you do with the two sealed
envelopes that contain the baggy of heroin and the baggy of meth?” Trahin
answered, “[p]lace them into larger manilla envelopes.” Dompkowski did
not object to these questions.

¶5 After the State rested, Dompkowski argued that the State had
failed to establish a sufficient chain of custody to authenticate the seized

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baggies and that substantial evidence did not support a conviction. See
Ariz. R. Crim. P. 20(a)(1). The court ruled that the chain-of-custody
argument went to the weight of the evidence, but did not affect its
admissibility, and denied Dompkowski’s motion.

¶6 During closing arguments, the State argued to the jury that:

[The baggies] come back to the Camp Verde Marshall’s Office.
Detective Trahin gets them out of evidence from [evidence
technician] Debbie Hughes and brings them to court. That’s
the chain of custody. Okay? If there’s a missing person, like
Debbie Hughes didn’t come and testify, you can still
determine that the chain of custody is fine; that there is no
problem. Nobody messed with this evidence. And I would
submit to you, ladies and gentlemen, based on the testimony
you heard yesterday, this evidence wasn’t messed with.

Dompkowski objected that the State had vouched for the evidence and
moved for a mistrial, but the court denied the motion.

¶7 The jury found Dompkowski guilty on all counts. The court
sentenced him to a slightly mitigated term of nine years’ imprisonment.

¶8 Dompkowski timely appealed. We have jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona
Revised Statutes §§ 12-120.21(A)(1), 13-4031 and -4033(A).

DISCUSSION

¶9 Dompkowski challenges the trial court’s (1) admission of
allegedly improper testimony by the State; and (2) denial of his motion for
mistrial based on the prosecutor’s comments during closing argument,
which Dompkowski asserts improperly vouched for the State’s evidence
and impugned defense counsel.

I. Standard of Review

¶10 We generally review a trial court’s decision not to grant a
mistrial for alleged prosecutorial misconduct for an abuse of discretion.
State v. Jones, 197 Ariz. 290, 301, ¶ 20 (2000). However, because
Dompkowski did not object to the court’s alleged admission of improper
testimony by the State, or to the alleged instance of prosecutorial
misconduct on the grounds of improperly impugning opposing counsel,
we review those arguments for fundamental error only. See State v. Hughes,

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193 Ariz. 72, 85, ¶ 58 (1998); State v. Lopez, 217 Ariz. 433, 434, ¶ 4 (App. 2008)
(“[A]n objection on one ground does not preserve the issue on another
ground. When a party fails to object properly, we review solely for
fundamental error.”).

II. Admission of allegedly improper testimony by the State

¶11 Dompkowski argues the trial court abused its discretion by
allowing the State to elicit facts not in evidence when Trahin identified the
contents of the seized baggies as heroin and methamphetamine before the
State’s forensic expert had testified.

¶12 Dompkowski’s claim fails because he has not carried his
burden on fundamental error review. See State v. Jones, 248 Ariz. 499, 501,
¶ 7 (App. 2020). He argues the testimony constituted fundamental error,
but he does not argue prejudice. Accordingly, we must determine whether
“the error was so egregious that he could not possibly have received a fair
trial.” See State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018). To meet this
standard, “the error must so profoundly distort the trial that injustice is
obvious without the need to further consider prejudice.” Id. at 141, ¶ 20.

¶13 Dompkowski has not shown the type of fundamental error
that would require reversal. He argues “[t]here is a strong probability that
the subsequent verdict was influenced by [the State’s] remarks,” citing State
v. Salcido, 140 Ariz. 342, 344 (App. 1984). However, the comments in Salcido
were more egregious, and the court in that case reviewed for harmless
error. See id. at 343–44 (concluding that prosecutor’s comment in closing
argument that he had seen evidence that was never presented to the jury
was “clearly improper and called to the jurors’ attention facts which were
not in evidence and which pertained to crucial matters for the jury’s
determination”). The comments in this case were not “so egregious that
[Dompkowski] could not possibly have received a fair trial”; the comment
was isolated, and Trahin had already testified that based on his training and
experience, the baggies appeared to contain methamphetamine and heroin.
Moreover, the State subsequently presented expert testimony—which
Dompkowski does not challenge on appeal—from the forensic scientist
who examined the drugs and who testified that the drugs were
methamphetamine and heroin. Thus, any possible error in admitting
Trahin’s testimony was harmless. See State v. Gerlaugh, 134 Ariz. 164, 170
(1982) (“[T]he order of proof is within the discretion of the trial court. When
the corpus delicti is later established, a variation in the order of proof does
not constitute prejudice to the defendant.”). The comments do not require
reversal.

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III. Comments during closing argument and motion for mistrial

¶14 Dompkowski argues the State committed prosecutorial
misconduct by vouching for the evidence and impugning the integrity of
opposing counsel during closing argument. He focuses on the State’s
comment that “[n]obody messed with this evidence. And I would submit
to you, ladies and gentlemen, based on the testimony you heard yesterday,
this evidence wasn’t messed with.”

¶15 “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, 465, ¶ 193 (2016) (quoting State v.
Hughes, 193 Ariz. 72, 79, ¶ 26 (1998)). “We will reverse a conviction for
prosecutorial misconduct only if (1) the prosecutor committed misconduct
and (2) a reasonable likelihood exists that the prosecutor’s misconduct
could have affected the verdict.” State v. Benson, 232 Ariz. 452, 463, ¶ 40
(2013). “The defendant’s burden is to prove the misconduct was ‘so
pronounced and persistent that it permeate[d] the entire atmosphere of the
trial.’” Goudeau, 239 Ariz. at 465, ¶ 193 (quoting State v. Morris, 215 Ariz.
324, 335, ¶ 46 (2007)).

A. Claim that comment impugned the integrity of opposing
counsel

¶16 Like Dompkowski’s argument above, his argument that the
comments impugned the integrity of opposing counsel fails because he has
not argued or otherwise established fundamental error. See State v. Johnson, 247 Ariz. 166, 185, ¶ 41 (2019) (“To prevail [on fundamental error review],
a defendant must establish both that fundamental error occurred and that
it caused him prejudice (though showing the former may establish the
latter).”). Moreover, the prosecutor did not refer to opposing counsel, and
instead simply addressed Dompkowski’s primary defense at trial—an
incomplete chain of custody. See State v. Ramos, 235 Ariz. 230, 238, ¶ 25
(App. 2014) (stating that although jury argument that impugns the integrity
of opposing counsel is improper, criticism of defense theories and tactics is
a proper subject of closing argument). Accordingly, the comment during
closing argument was not improper. Moreover, although Dompkowski
argues the error was not harmless, he has failed to show fundamental error
and/or prejudice, and his claim thus fails. See Johnson, 247 Ariz. at 185, ¶
41.

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B. Claim that comment constituted improper vouching

¶17 “Two general forms of prosecutorial vouching exist: (1) when
‘the prosecutor places the prestige of the government behind its witness’;
or (2) when ‘the prosecutor suggests that information not presented to the
jury supports the witness’s testimony.’” State v. Acuna Valenzuela, 245 Ariz.
197, 217, ¶ 75 (2018) (quoting State v. Vincent, 159 Ariz. 418, 423 (1989)).
“Placing the prestige of the state behind its witness ‘involves personal
assurances of a witness’s veracity,’ while ‘[t]he second type of vouching
involves prosecutorial remarks that bolster a witness’s credibility by
reference to matters outside the record.’” Id. (quoting State v. King, 180 Ariz.
268, 277 (1994)).

¶18 The State’s comments did not constitute improper vouching.
The comment neither “place[d] the prestige of the government behind its
witness” nor “suggest[ed] that information not presented to the jury
supports the witness’s testimony.” See Acuna Valenzuela, 245 Ariz. at 217,
¶ 75. The comments were phrased as argument, and the State made clear
that that argument was based on testimony that was presented to the jury.
Further, the record contains sufficient evidence to permit the State to make
such an argument. See Morris, 215 Ariz. at 336, ¶¶ 51–52 (noting
prosecutors have “wide latitude” in presenting arguments to the jury and
may argue “all reasonable inferences from the evidence”).

¶19 Additionally, even if the comments did constitute improper
vouching, the comments were at most harmless error because the court
instructed the jurors that statements of counsel did not constitute evidence.
See id. at 336–37, ¶ 55 (finding that even if comments were improper, the
court’s instructions to the jury that the lawyers’ arguments were not
evidence negated their effect). The court did not abuse its discretion by
denying Dompkowski’s motion for mistrial.

CONCLUSION

¶20 Based on the foregoing, we affirm Dompkowski’s convictions
and sentences.

AMY M. WOOD • Clerk of the Court
FILED: AA

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