Opinion
2 CA-CR 2012-0074
01-09-2013
THE STATE OF ARIZONA, Appellee, v. ARTURO MARTIN FLORES, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Joseph T. Maziarz, and Alan L. Amann Attorneys for Appellee Lori J. Lefferts, Pima County Public Defender By David J. Euchner Attorneys for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
Not for Publication
Rule 111, Rules of
the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR20092122001
Honorable Christopher C. Browning, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Joseph T. Maziarz,
and Alan L. Amann
Attorneys for Appellee
Tucson
Lori J. Lefferts, Pima County Public Defender
By David J. Euchner
Attorneys for Appellant
Tucson
HOWARD, Chief Judge. ¶1 After a jury trial, appellant Arturo Flores was convicted of first-degree murder, attempted first-degree murder, and aggravated assault with a deadly weapon. On appeal, Flores argues the trial court erred in instructing the jury on premeditation and by refusing to dismiss the entire jury venire panel after a statement made by one prospective juror. Because we find no prejudice resulting from the jury instruction and no abuse of discretion in refusing to dismiss the venire panel, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining Flores's convictions. See State v. Robles, 213 Ariz. 268, ¶ 2, 141 P.3d 748, 750 (App. 2006). While the victims F.C. and J.G. were each cleaning their respective cars at a self-service car wash late one evening, a car drove past them into a cleaning bay behind them. Flores exited the car, initially turned his back to the victims, walked backward toward the victims, then turned around and fired three shots at them. F.C. was fatally wounded while J.G. sustained an injury to his left shoulder blade. The car that had delivered Flores drove away as the assault occurred. Flores fled the scene on foot. ¶3 Flores was charged with and convicted of first-degree murder, attempted first-degree murder, and aggravated assault with a deadly weapon. He was sentenced to life in prison, followed by concurrent terms of imprisonment, the longest of which was 10.5 years. Flores appeals from these convictions and sentences.
Premeditation Instruction
¶4 Flores first argues the trial court erred in instructing the jury on premeditation by using the phrase "proof of actual reflection is not required" without giving the jury further clarification as prescribed under State v. Thompson, 204 Ariz. 471, 65 P.3d 420 (2003). In Thompson, our supreme court explained that the element of premeditation required actual reflection to differentiate first- from second-degree murder, but proof of that reflection could be circumstantial. Id. ¶¶ 26-27, 31. ¶5 Flores concedes he did not object to the instruction below and therefore has forfeited review for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005) (failure to object to alleged error in trial court results in forfeiture of review for all but fundamental error). The state agrees with Flores that the court's instruction was fundamentally erroneous under Thompson. Fundamental error is error that "goes to the foundation of [the defendant's] case, takes away a right that is essential to his defense, and is of such magnitude that he could not have received a fair trial." See id. ¶ 24. Reversal is only required if the defendant was prejudiced by the error, and the defendant has the burden of establishing prejudice. Id. ¶ 20. We review de novo whether the court properly instructed the jury. See State v. Nelson, 229 Ariz. 180, ¶ 21, 273 P.3d 632, 637 (2012). ¶6 Here, the instruction the trial court gave to the jury is nearly identical to the instruction disapproved of by Thompson and included the phrase "[p]roof of actual reflection is not required" without further clarification. See Thompson, 204 Ariz. 471, ¶¶ 7, 32, 65 P.3d 420, 423, 428; see also State v. Moore, 222 Ariz. 1, ¶¶ 64-72, 213 P.3d 150, 163-64 (2009) (finding similarly worded jury instruction erroneous and harmless only to one of three victims under harmless error review). Accordingly, we agree with the parties that this instruction was erroneous. ¶7 Flores further argues, and the state concedes, the error was fundamental because the premeditation instruction "blurred the line between first- and second-degree murder to such an extent that it essentially denied [him] of his opportunity to receive an instruction on lesser-included offenses." In Thompson, our supreme court emphasized that "[i]t is th[e] mental state that distinguishes between first and second degree murder [and t]o redefine premeditation as a moment of time that may be 'instantaneous' renders the distinction meaningless." 204 Ariz. 471, n.6, 65 P.3d at 428 n.6. Fundamental error occurs when a lower court deprives the defendant of his "right to have certain facts decided by a jury beyond a reasonable doubt." Henderson, 210 Ariz. 561, ¶¶ 25-27, 115 P.3d at 608-09. The U.S. Supreme Court has made clear that the Sixth and Fourteenth Amendments "indisputably entitle a criminal defendant to 'a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.'" Apprendi v. New Jersey, 530 U.S. 466, 476-77 (2000), quoting United States v. Gaudin, 515 U.S. 506, 510 (1995). Because the instruction in this case may have rendered the distinction between first-degree murder and second-degree murder meaningless, and therefore could have allowed the jury to convict Flores without finding all essential elements of first-degree murder, we find the erroneous instruction constituted fundamental error. ¶8 Flores next contends the erroneous instruction prejudiced him because the record contains no direct evidence that the shooter actually reflected on his decision to kill, although he concedes the shooter intended to wound the victims based on where they were shot. Because of this, Flores claims if the premeditation instruction had stated the law correctly, a reasonable probability exists that the jury may not have convicted him of first-degree murder and attempted first-degree murder. The state argues Flores cannot establish prejudice because the jury found he had intended to kill and the trial evidence overwhelmingly established actual reflection. Thus, the state argues, jurors would have convicted Flores of first-degree murder even if they had been correctly instructed on premeditation. ¶9 Our supreme court has emphasized that an improper jury instruction will rarely justify the reversal of a criminal conviction when the defendant fails to object below. See State v. Van Adams, 194 Ariz. 408, ¶ 17, 984 P.2d 16, 23 (1999). "A principal reason for applying the fundamental error standard of review is to discourage defendants from attempting to use a curable error as a 'hole card' on appeal in the event they are dissatisfied with the results of their trial." State v. Eddington, 226 Ariz. 72, ¶ 22, 244 P.3d 76, 83-84 (App. 2010), quoting Henderson, 210 Ariz. 561, ¶ 19, 244 P.3d at 607. ¶10 Here, to establish prejudice, Flores must show that a reasonable jury, applying the appropriate premeditation instruction, could have reached a different result. See Henderson, 210 Ariz. 561, ¶ 27, 115 P.3d at 609; State v. Valverde, 220 Ariz. 582, ¶ 12, 208 P.3d 233, 236 (2009) (establishment of prejudice varies on case-by-case basis after fact-intensive inquiry). Flores's argument that the shooter clearly intended to shoot and wound the victim but might not have intended to kill him conflates the elements of premeditation and intent. In this case, the court properly instructed the jury that to find Flores guilty of premeditated murder it was required to find he had intended to kill the victim and actually killed the victim. See A.R.S. § 13-1105(A)(1) (definition of premeditated first-degree murder); Thompson, 204 Ariz. 471, ¶ 32, 65 P.3d at 428. The jury therefore necessarily found beyond a reasonable doubt the state proved the intent required. ¶11 But the trial court did not clarify the phrase "actual reflection is not required," leaving only premeditation in question. Nevertheless, at trial, a surveillance video of the shooting was admitted and showed a black Audi driving by the two victims, while they were vacuuming the inside of their cars. After passing F.C. and J.G., the Audi parked in a cleaning bay behind and to the left of them. The driver pulled toward the front of the bay so the driver and Flores, the passenger, had a clear view of F.C. and J.G. Flores and the driver both remained in the car for nine seconds before Flores got out of the passenger side of the vehicle. Flores then paused and appeared to be talking to the driver. After a few seconds, he started walking toward F.C. and J.G., turned around and began walking backward once he was in their possible line-of-sight to prevent them from seeing his face. He looked over his shoulder at F.C. and J.G., pulled out his gun from the inside front of his shorts, turned around, and began running toward them. Flores shot J.G. and fired two shots at F.C., fatally wounding him with the second, before fleeing. All of Flores's actions occurred without any intervening circumstances. Based on this overwhelming evidence of reflection, combined with the jury's finding that Flores intended or knew his conduct would cause death, Flores has not shown a reasonable jury could not have concluded he did not reflect before he acted. ¶12 Flores speculates in his reply brief that the jury could have found he had planned to shoot the victims but changed his mind at the last minute and decided to kill them. But in the absence of any intervening circumstances this speculation is inconsistent with the reasonable interpretation of the evidence. And Flores must establish prejudice by more than mere speculation under fundamental error review. See State v. Trostle, 191 Ariz. 4, 13-14, 951 P.2d 869, 878-79 (1997); State v. Martin, 225 Ariz. 162, ¶ 15, 235 P.3d 1045, 1049 (App. 2010). Therefore, Flores has not shown he was prejudiced by the erroneous instruction on premeditation. Because Flores has failed to establish prejudice, we uphold his conviction for first-degree murder.
The trial court instructed the jury on the necessarily included offense of second-degree murder as to the murder victim. But it did not instruct the jury on attempted second-degree murder as to the other victim because Flores asked it not to do so. During deliberations, the jury asked the trial court if attempted second-degree murder was included as a lesser charge of attempted first-degree murder. The court was considering instructing the jury on attempted second-degree murder, allowing counsel to re-argue attempted second-degree murder to the jury, and giving the jury a verdict form for the crime. Defense counsel apparently made a tactical decision by arguing that the court should not give an instruction or verdict form but instead should tell the jury attempted second-degree murder is not a lesser-included offense. Before the court could make a ruling, the jury notified the court they were asking the question out of "academic curiosity" and they had reached a verdict. However, the jury could have been re-instructed and asked to deliberate on the charge in view of a lesser-included instruction. But because Flores objected to that instruction, we find Flores invited any error in the jury not being instructed on the crime as a lesser offense of attempted first-degree murder. See State v. Lucero, 223 Ariz. 129, ¶ 20, 220 P.3d 249, 256 (App. 2009) (expressly requesting trial court to not give lesser-included offense instruction amounts to invited error and precludes defendant from arguing on appeal the instruction should have been given). Accordingly, we only consider his claim that the erroneous instruction prejudiced his conviction for first-degree murder.
The state also argues Flores did not challenge the element of premeditation below, but our reading of the record does not support this assertion.
Although the statute has been amended since April 2009, the date of Flores's offenses, the portions relevant to his case were not affected. See 2009 Ariz. Sess. Laws, ch. 130, § 1.
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Jury Venire
¶13 Flores next argues the trial court erred by not striking the entire jury panel after one prospective juror made a comment about his prior jury experience. We review rulings on motions to strike jurors for cause for an abuse of discretion. State v. Moore, 222 Ariz. 1, ¶ 37, 213 P.3d 150, 159 (2009). ¶14 A party may challenge the entire jury panel if "there has been a material departure from the requirements of law." Ariz. R. Crim. P. 18.4(a). Such a departure may occur when "'events . . . cast an irrevocable cloud over the jury's fairness and impartiality,'" prejudicing the jury against the defendant. State v. Duke, 110 Ariz. 320, 323, 518 P.2d 570, 573 (1974), quoting State v. Reynolds, 11 Ariz. App. 532, 535, 466 P.2d 405, 408 (1970). The party challenging the jury panel has the burden to show the jurors were impaneled unlawfully or unable to serve fairly and impartially. State v. Davis, 137 Ariz. 551, 558, 672 P.2d 480, 487 (App. 1983). "Although a defendant is entitled to be tried by a fair and impartial jury, he is not entitled to any one particular jury." State v. Lujan, 184 Ariz. 556, 560, 911 P.2d 562, 566 (App. 1995). Thus we must affirm the trial court unless the record affirmatively demonstrates the court did not in fact secure a fair and impartial jury for the defendant. Id. ¶15 During jury selection, one juror responded to the question whether he had prior jury service with the following statement:
I have served on a jury before. It was a criminal case. We found the defendant not guilty, which was traumatic because after the trial was over the judge and the prosecutor told us things that we weren't allowed to hear during the trial. And we basically figured out that we had let a guilty man go free because we didn't have all the information.The court questioned the juror individually, and after the juror admitted he would have difficulty being impartial the court excused him for cause. Flores contends this juror's statement "poisoned the well to such an extent that no remedy short of ordering a mistrial and starting with a new jury could have sufficed." But Flores points to no other evidence in the record to support his claim that the impaneled jury was unable to serve fairly and impartially. ¶16 In denying the motion, the trial court found the remaining prospective jurors had all indicated they were "willing to decide the case strictly, solely based on what's presented here." The record supports that finding. None of the impaneled jurors indicated either before or after the statement that they could not serve fairly and impartially. We cannot find and Flores does not point us to any other aspect of the record that suggests prejudice on the part of any of the jurors. Under these circumstances, we cannot say the trial court abused its discretion.
Conclusion
¶17 For the foregoing reasons, we affirm Flores's convictions and sentences.
______________________________
JOSEPH W. HOWARD, Chief Judge
CONCURRING: ______________________________
PETER J. ECKERSTROM, Presiding Judge
______________________________
GARYE L. VÁSQUEZ, Judge