Opinion
No. 2 CA-CR 2018-0232
09-11-2019
THE STATE OF ARIZONA, Appellee, v. MARCUS J. DICKSON, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Karen Moody, Assistant Attorney General, Tucson Counsel for Appellee Joel Feinman, Pima County Public Defender By Michael J. Miller, Assistant Public Defender, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20173289001
The Honorable Casey F. McGinley, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Karen Moody, Assistant Attorney General, Tucson
Counsel for Appellee Joel Feinman, Pima County Public Defender
By Michael J. Miller, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred. VÁSQUEZ, Chief Judge:
¶1 After a jury trial, Marcus Dickson was convicted of manslaughter, and the trial court sentenced him to a nine-year prison term. On appeal, Dickson argues the court erred by not instructing the jury that it could consider his decision to stay at the scene of the shooting and call 9-1-1 as evidence supporting a lack of consciousness of guilt. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the facts and all reasonable inferences in the light most favorable to affirming Dickson's conviction. See State v. Bon, 236 Ariz. 249, ¶ 2 (App. 2014). One afternoon in June 2017, M.P. was teaching his son H.P. how to drive. While they were stopped at a traffic light, Dickson drove up behind them and honked his horn because H.P. "was stopped at a green light with a green arrow." H.P. proceeded to make a right turn through the light, and Dickson followed. Dickson honked his horn again when H.P. made a left turn and then another time after H.P. made an additional stop before entering the parking lot at a shopping center. As a result, H.P. pulled the car over. M.P. then got out, and Dickson stopped in front of M.P.'s car to "see what [M.P.] had to say." M.P. and Dickson engaged in a verbal argument that escalated to a physical altercation. As M.P. straddled Dickson on the ground, Dickson reached for his gun and shot M.P. twice. Afterwards, Dickson holstered his gun and dialed 9-1-1 on his cell phone.
¶3 Meanwhile, a Marana police officer had been investigating an unrelated incident nearby when a woman alerted her that someone "had been shot and . . . was laying in the street." The officer rushed to the scene, where she saw Dickson holding his cell phone to one ear with his other hand in the air standing next to M.P. lying on the ground. The officer directed Dickson to put his hands up, removed Dickson's gun from its holster, and placed him under arrest.
¶4 A grand jury indicted Dickson for second-degree murder, and a jury found him guilty of the lesser-included offense of manslaughter by sudden quarrel or heat of passion. The trial court sentenced Dickson as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Discussion
¶5 Dickson argues the trial court erred "when it refused to give the defense instruction that the jury could consider [his] decision to stay at the scene and call for assistance as evidence supporting a lack of consciousness of guilt." "We review the trial court's decision to give or refuse a jury instruction for an abuse of discretion." State v. Almaguer, 232 Ariz. 190, ¶ 5 (App. 2013) (quoting State v. Hurley, 197 Ariz. 400, ¶ 9 (App. 2000)); see also State v. Aguilar, 224 Ariz. 299, ¶ 6 (App. 2010) ("[A] court abuses its discretion when it misapplies the law or bases its decision on incorrect legal principles.").
¶6 At trial, Dickson requested a "reverse flight" jury instruction, reasoning that the state often requests a flight instruction "in a case where the Defendant flees, or runs, or hides . . . as a part of what [the jury] analyz[es] to decide guilt." And Dickson argued he was "entitled to the reverse" because he presented evidence showing that he "remained at the scene, did not flee, did not try and leave, or do anything that would suggest that he was trying to evade the police, or not take responsibility for what . . . they were investigating at the time." Dickson acknowledged he was not aware of any Revised Arizona Jury Instruction or case law that supported his entitlement to a reverse-flight jury instruction. The trial court denied Dickson's request, concluding that "there is a distinction between the two proposed scenarios [because t]here is a clear or a clearer motivation as to why someone might be inclined [to flee a scene] immediately after the commission of an offense." But, according to the court, if, and when, a person remains at a scene, "there could be any number of reasons [that] do[] not necessarily equate to the same kind of commentary or consciousness of guilt or innocence." We agree with the court's reasoning.
¶7 A flight instruction may "be given if the State presents evidence of flight after a crime from which jurors can infer a defendant's consciousness of guilt." State v. Solis, 236 Ariz. 285, ¶ 7 (App. 2014); see also State v. Parker, 231 Ariz. 391, ¶ 44 (2013) (flight instruction appropriate if presented evidence infers consciousness of guilt); State v. Bible, 175 Ariz. 549, 592 (1993) ("To be admissible . . . 'there must be evidence of flight from which can be inferred a consciousness of guilt for the crime charged.'" (emphasis in Bible) (quoting State v. Edwards, 136 Ariz. 177, 184 (1983))). But although flight may be relevant to a defendant's guilt, "it does not necessarily follow that lack of flight is relevant to innocence." State v. Walton, 159 Ariz. 571, 584 (1989). That is because the "[a]bsence of flight does not necessarily reflect the state of mind" as the "[a]bsence of flight under other circumstances may seem far better calculated to avoid detection." State v. Sorensen, 104 Ariz. 503, 509 (1969). When, as in this case, the court gives a presumption-of-innocence instruction, "there is no need for a non-flight instruction. In fact, some courts consider the giving of such an instruction an unallowable comment on the evidence." State v. Bernal, 13 Ariz. App. 177, 180 (1970). "The matter is more properly one of argument." Sorensen, 104 Ariz. at 509.
¶8 On appeal, Dickson requests that we "reconsider the rationales from decades ago for denying a non-flight instruction in cases where the defendant's or a reasonable person's state of mind is relevant." He maintains that "Arizona permits a flight instruction despite the existence of alternative innocent explanations," and he suggests that we adopt and apply a "nonflight instruction" in all instances except for when "there is evidence that the defendant did not flee for a purpose unrelated to guilt, such as injury or being in a place where flight is not possible."
¶9 But as stated above, our supreme court has held that a reverse-flight instruction is not appropriate because "[a]bsence of flight does not necessarily reflect the state of mind." Id. Despite Dickson's requests, we are unable to "overrule, modify, or disregard" the decisions of our supreme court. State v. Thompson, 194 Ariz. 295, ¶ 20 (App. 1999) (quoting Myers v. Reeb, 190 Ariz. 341, 342 (App. 1997)). Consequently, "[t]he appropriate forum for [his] argument is the Arizona Supreme Court." Id. Because the jury was given the appropriate presumption-of-innocence jury instruction, and was therefore "free to draw all reasonable inferences from the absence of flight, without specific instructions from the court," Sorensen, 104 Ariz. at 509; see Bernal, 13 Ariz. App. at 180, the court did not abuse its discretion in refusing to give the reverse-flight jury instruction at trial, see Almaguer, 232 Ariz. 190, ¶ 5.
Based on his argument that this court should reconsider established case law, Dickson additionally argues that the reverse-flight jury instruction was "relevant to [his] presentation of the justification of self-defense" and was appropriate because it was not a "comment on the evidence." Because the instruction is inappropriate, we decline to address his additional arguments. --------
Disposition
¶10 For the foregoing reasons, we affirm Dickson's conviction and sentence.