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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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

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 

2

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 seconddegree 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. 
STATE v. MCKEEVER 

Decision of the Court 

3

¶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. 
STATE v. MCKEEVER 

Decision of the Court 

4

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.
STATE v. MCKEEVER 

Decision of the Court 

5

¶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. 
STATE v. MCKEEVER 

Decision of the Court 

6

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 
STATE v. MCKEEVER 

Decision of the Court 

7

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 postMiranda silence, but rather revealed the inconsistencies between 

McKeever’s two stories.

CONCLUSION 

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

and sentence.