Opinion
No. 1 CA-CR 10-0358
01-31-2012
STATE OF ARIZONA, Appellee, v. CHRISTOPHER LEE SMITH, Appellant.
Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Barbara A. Bailey, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Christopher V. Johns, Deputy Public Defender 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(Not for Publication -Rule 111, Rules of the Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2008-102616-001SE
The Honorable Sam J. Myers, Judge
AFFIRMED
Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Barbara A. Bailey, Assistant Attorney General Attorneys for Appellee
Phoenix
James J. Haas, Maricopa County Public Defender By Christopher V. Johns, Deputy Public Defender Attorneys for Appellant
Phoenix GEMMILL, Judge
¶1 Christopher Smith appeals his sentences and convictions for one count of second degree murder and three counts of aggravated assault, all dangerous felonies. Smith raises two issues on appeal, both related to jury instructions. First, whether the trial court erred when it used the "Effect of Alcohol Use" jury instruction ("AU instruction") and thereby shifted the burden of proof from the State to Smith. Second, whether the AU instruction confused the jury. Smith asks us to reverse his convictions and sentences and remand for a new trial. For the following reasons, we affirm Smith's sentences and convictions.
FACTS AND PROCEDURAL HISTORY
¶2 "We view the evidence in the light most favorable to upholding the jury verdict and all reasonable inferences are resolved in favor of the prevailing party at trial." State v. Mitchell, 204 Ariz. 216, 217, ¶ 3, 62 P.3d 616, 617 (App. 2003) (citing State v. Lee, 189 Ariz. 590, 603, 944 P.2d 1204, 1217 (1997)).
¶3 Viewing the evidence in accordance with the preceding principles, the following facts were revealed at trial.
¶4 On December 24, 2007, Smith went to his parents' home for a Christmas Eve party. Smith drank alcohol at the party. Smith's sister testified that Smith was supposed to stay at his parents' house that evening because he had too much to drink at the party. Smith's stepmom testified that after the party ended, Smith went to the bedroom, presumably to sleep, at around 10:00 p.m. Smith's stepmom turned off all the lights and locked the doors before she went to bed. At around midnight, Smith's stepmom awoke, noticed the kitchen light was on, and that Smith was not in his bedroom. Smith's parents searched their home for him. Smith's stepmom noticed that the front door was now unlocked. Smith's parents determined that he was no longer in their home and his car was gone.
¶5 At approximately 11:15 p.m., Smith was involved in a head-on collision. Smith was driving his vehicle the wrong direction down Pecos Road. He collided with a minivan. Three people inside the minivan were seriously injured, and a fourth person inside the minivan was killed.
¶6 Immediately preceding the accident, a retired police officer witnessed a car turn the wrong way down Pecos Road traveling at a speed exceeding fifty miles per hour. The retired officer also witnessed several cars making evasive maneuvers to avoid the oncoming vehicle.
¶7 Another witness testified that he saw a car traveling the wrong direction, headed toward him, and he flashed his lights and honked his horn at the driver. He also saw a few other cars doing the same thing he was doing: trying to alert the driver in the oncoming car. An off-duty police officer was driving home and saw the immediate aftermath of the head-on collision. The off-duty officer approached the scene to render aid and noticed that Smith smelled strongly of alcohol and had bloodshot eyes. Based on the officer's training, he believed alcohol was a factor in the collision.
¶8 A police officer, responding to the accident, also determined that Smith smelled of alcohol and had bloodshot eyes. The responding officer further found, based on his training, that Smith was impaired from alcohol.
¶9 Two blood samples were taken from Smith and analyzed for their alcohol content. Smith's blood alcohol content was found to be .25, well above the standard legal limit for unimpaired driving.
¶10 Smith's defense at trial was that he had a sleep episode; he was "sleep-driving." Smith's father testified that Smith had been known to sleepwalk as a child. Dr. G. testified as a sleep expert on behalf of the defense. According to Dr. G., a person is not conscious during a sleepwalking episode. Dr. G. stated that alcohol aggravates sleepwalking. Dr. G. did not interview Smith or his family concerning any familial sleep patterns. Dr. G. opined that alcohol was likely the cause of Smith's sleep-driving episode. Moreover, Dr. G. acknowledged that probably none of this would have happened if Smith had not consumed alcohol on Christmas Eve.
¶11 Dr. B. testified as a sleep expert on behalf of the State. Dr. B. interviewed Smith and his family in order to establish any evidence of family sleepwalking history. Dr. B. concluded that he could not find an historical family basis for sleepwalking. Dr. B. ultimately concluded that Smith was not sleep-driving on Christmas Eve. Dr. B. offered several reasons for his conclusion including: there was no family history of sleepwalking; Smith's behavioral patterns were very complex (Smith would have to rise up from his bed, find his keys, walk out of the house, get into his car, drive down the road, enter the wrong lane of traffic, and get into an accident); there was no childhood history of sleepwalking that was not explainable; and finally, Smith had a very high blood alcohol content. Also, according to Dr. B., sleepwalking is a rare behavior and sleep-driving is even rarer still.
¶12 At trial, Smith objected to the AU instruction on the basis that it was confusing. Smith requested and offered a different AU instruction but the trial court denied Smith's proffered AU instruction.
¶13 The jury convicted Smith of one count of second degree murder and three counts of aggravated assault.
¶14 Smith timely appeals and we have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2003), 13- 4031 (2010), and 13-4033(A)(1) (2010).
Absent material revisions to a statute after the date of an offense, we cite the current version.
ANALYSIS
The Trial Court's Jury Instruction On Alcohol Use Did Not Violate Smith's Due Process Rights
¶15 Smith argues that he was denied due process of law because the AU instruction given by the court impermissibly shifted the burden of proof from the State to himself through a mandatory presumption. Smith contends that "[t]he effect of alcohol use [instruction] presumes there cannot be an involuntary state of mind because the presumption is that intoxication precludes a finding of an involuntary act."
¶16 Smith supports his due process argument with In re Winship, 397 U.S. 358, 364 (1970). The Supreme Court in Winship held that the Due Process Clause requires the state to prove every fact necessary for the crime charged with proof beyond a reasonable doubt. Id.
¶17 We review for abuse of discretion when determining whether a trial court erred by giving or refusing to give a jury instruction. State v. Anderson, 210 Ariz. 327, 343, ¶ 60, 111 P.3d 369, 385 (2005). "Erroneous jury instructions are subject to a harmless error analysis." State v. Dann, 205 Ariz. 557, 565, ¶ 18, 74 P.3d 231, 239 (App. 2003) (citations omitted). "We review de novo whether jury instructions correctly state the law, 'read[ing] the jury instructions as a whole to ensure that the jury receives the information it needs to arrive at a legally correct decision.'" State v. Prince, 226 Ariz. 516, 536, ¶ 77, 250 P.3d 1145, 1165 (2011) (quoting State ex rel. Thomas v. Granville, 211 Ariz. 468, 471, ¶ 8, 123 P.3d 662, 665 (2005) (citations omitted)).
¶18 The trial court gave the following AU instruction to the jury:
It is not a defense to any criminal act if the criminal acts were committed due to temporary intoxication resulting from the voluntary consumption of alcohol.[]The jury instruction was based on A.R.S. § 13-503 (2010), which provides: "Temporary intoxication resulting from the voluntary ingestion, consumption, inhalation or injection of alcohol . . . is not a defense for any criminal act or requisite state of mind." (Emphasis added.)
The trial court separated the AU instruction regarding criminal acts from the effects of alcohol use on requisite mental states. The court added the following to the definition of "knowingly": "It is no defense that the defendant was not aware of the existence of conduct or circumstances solely because of voluntary intoxication." Similarly, the court added the following to the definition of "recklessly": "It is no defense that a person who created such a risk was unaware of it solely because of voluntary intoxication."
¶19 Smith offered the trial court the following
alternative instruction:
A defendant who becomes intoxicated due to involuntary consumption of alcohol cannot use his/her intoxication as a defense to the requisite state of mind. This means
defendant cannot claim that he failed to act intentionally, knowingly, recklessly or negligently because of his voluntary consumption of alcohol.
¶20 Smith's theory of the case was that he was "sleep-driving" or unconscious when he got behind the wheel of his car and therefore was incapable of any voluntary act. A voluntary act is a necessary minimum requirement for criminal liability. See A.R.S. § 13-201 (2010); State v. Venegas, 137 Ariz. 171, 173, 669 P.2d 604, 606 (App. 1983). The legislature has defined voluntary act as "a bodily movement performed consciously and as a result of effort and determination." A.R.S. § 13-105(42) (Supp. 2011) (emphasis added); see also State v. Moody, 208 Ariz. 424, 467-68, ¶¶ 197-201, 94 P.3d 1119, 1162-63 (2004); State v. Lara, 183 Ariz. 233, 234, 902 P.2d 1337, 1338 (1995).
¶21 In Venegas, this court concluded that "even if appellant had been unconscious during the high speed chase, unconsciousness caused by voluntary intoxication is no defense to a negligent homicide charge." 137 Ariz. at 174, 669 P.2d at 607. Under the facts of Venegas, the court further explained:
Even if it is assumed that appellant was suffering from pathological intoxication during the high speed chase, and even if one assumes that appellant did not appreciate the wrongfulness of his actions, such conditions do not mean that appellant'sId. at 173-74, 669 P.2d at 606-07.
bodily movements were performed other than consciously and as a result of effort and determination. See A.R.S. § 13-105(32). [renumbered 13-105(41)]. While Arizona's statutes do not define the term "consciously",[] the courts in California have defined an unconscious act to be "one committed by a person who because of somnambulism, a blow on the head, or similar cause is not conscious of acting and whose act therefore cannot be deemed volitional." People v. Ray, [533 P.2d 1017, 1019 (Cal. 1975)]. A person who leads police on a high speed chase through the streets of Phoenix for several miles, making turns and avoiding police cars, is hardly a person who is performing unconsciously. Thus, appellant's conduct falls within the definition of a "voluntary act" and criminal liability cannot be avoided here pursuant to A.R.S. § 13-201.
Our supreme court has stated, however, that "movement while unconscious, asleep, under hypnosis, or during an epileptic fit, is not a voluntary act." Lara, 183 Ariz. at 234, 902 P.2d at 1338 (citing 1 Rudolph J. Gerber, Criminal Law of Arizona 201-1 (1993)).
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¶22 Here, in addition to the AU instruction, the trial court gave a voluntary act jury instruction, based on A.R.S. § 13-201. Presumably the trial court provided the voluntary act instruction to the jury in case the jury found that the evidence at trial may have supported that Smith was acting involuntarily. Cf. Moody, 208 Ariz. at 467-68, ¶¶ 197, 201, 94 P.3d at 1162-63 ("A defendant is entitled to a jury instruction on any theory reasonably supported by the evidence" but holding that a voluntary act instruction was not required because of insufficient evidence adduced at trial).
¶23 Based on A.R.S. § 13-503, we conclude that the AU instruction properly stated the law and was applicable to the facts. We further conclude that the trial court properly rejected Smith's proffered jury instruction because it did not adequately state the law for the jury. A.R.S. § 13-503 addresses the effect of alcohol use on criminal acts as well as culpable mental states, whereas Smith's requested instruction omitted any discussion of the effects of alcohol use on potential criminal acts. Thus, we determine that the trial court did not abuse its discretion by denying Smith's version of an AU instruction.
¶24 Additionally, Smith relies on Sandstrom v. Montana, 442 U.S. 510 (1979), to support his assertion that the jury instruction was given in error. In Sandstrom, the prosecution requested a jury instruction stating that "[t]he law presumes that a person intends the ordinary consequences of his voluntary acts." Id. at 513 (internal quotation omitted). Sandstrom's defense was that his personality disorder, coupled with his alcohol consumption, precluded him from forming the requisite intent of knowingly or purposely intending to kill. Id. at 512 n.2. After granting a writ of certiorari, the Supreme Court of the United States determined that the instruction inappropriately shifted the burden of proof to the defense concerning an element of the crime charged, and ultimately concluded that the jury instruction was unconstitutional pursuant to Winship. Id. at 513-14.
¶25 The Court in Sandstrom explained that "[t]he threshold inquiry in ascertaining the constitutional analysis applicable to this kind of jury instruction is to determine the nature of the presumption it describes." Id. at 514 (citations omitted). The Court determined that a reasonable jury could interpret the presumption in multiple ways (a mandatory presumption, a permissive inference, or a conclusive presumption) and in doing so could reach a verdict at odds with due process burden shifting principles. Id. at 524.
¶26 Smith contends that the AU instruction given by the trial court is similar to the instruction given in Sandstrom and Francis v. Franklin, 471 U.S. 307, 313-14 (1985), because the AU instruction allegedly created a mandatory presumption of one of the requirements for criminal culpability (voluntary act) for the offense and thereby shifted the burden to Smith. According to Smith, the AU instruction "forces the jury to presume that an act cannot be involuntary if there is temporary or voluntary intoxication." We conclude, however, that Sandstrom is not applicable to our present case because the AU instruction did not create a mandatory presumption.
¶27 The State cites Montana v. Egelhoff, 518 U.S. 37, 43 (1996) (plurality opinion), to support its contention that the instruction was constitutionally sound. Egelhoff was charged with two counts of homicide, and he defended on the basis that he was too intoxicated to physically commit murder. Id. at 41. The Court in Egelhoff was faced with a Montana statute and jury instruction which prevented the jury from considering Egelhoff's "intoxicated condition . . . in determining the existence of a mental state which is an element of the offense." Id. (quoting Mont. Code Ann. § 45-2-203 (1995)) (internal quotation omitted).
¶28 The Supreme Court plurality concluded that "disallowing consideration of voluntary intoxication when a defendant's state of mind is at issue" is in harmony with the Due Process Clause. Id. at 56. Additionally, the Egelhoff Court concluded that Sandstrom's presumption analysis was inapplicable because the trial judge gave the jury an instruction describing the state's burden of having to prove all elements beyond a reasonable doubt. Id. at 54. Moreover, the jury in Egelhoff was instructed on the required mental states for finding criminal culpability. Id. Similarly, Smith's jurors were instructed on not only the mens rea requirements, but also the necessity of a voluntary act for finding Smith criminally liable and the State's burden of proving a voluntary act and all elements of each offense.
¶29 Moreover, the Egelhoff plurality opinion and Justice Ginsburg in her concurrence recognized that states have long held the power to define criminal conduct by promulgating both the elements and defenses for crimes. See id. at 55; id. at 58 (Ginsburg, J., concurring); see also State v. Casey, 205 Ariz. 359, 362, ¶ 10, 71 P.3d 351, 354 (2003) (stating that it is within the province of the legislature to define crimes and set penalties) (citations omitted) (superseded by statute on other grounds); State v. Jackson, 186 Ariz. 490, 491, 924 P.2d 494, 495 (App. 1996) ("The authority to define crimes and fix the penalties for such crimes rests with the legislature, not the judiciary.").
¶30 When assessing the overall correctness of jury instructions, we consider them as a whole. See Prince, 226 Ariz. at 536, ¶ 77, 250 P.3d at 1165. The final instructions given the jury included in part:
1) Duty of Jury: stating that the jury must apply and follow the instructions;
2) Lawyers' Comments Are Not Evidence: stating opening and closing arguments are only to be used to help the jury understand the law and evidence;
3) Presumption of Innocence: stating that every defendant is presumed innocent;
4) Burden of Proof: stating the State has the burden of proving the defendant guilty beyond a reasonable doubt; including that the State must prove each element of the crime and that "beyond a reasonable doubt" means the
jurors are firmly convinced of defendant's guilt;
5) Voluntary Act: stating that a voluntary act means "a bodily movement performed consciously and as a result of effort and determination" and must be proved by the State beyond a reasonable doubt;
6) Expert Witness: stating in sum that the jury can accept the testimony or reject it;
7) Second Degree Murder and Aggravated Assault elements;
8) Lesser included charges of manslaughter and negligent homicide elements;
9) The UA instruction; and
10) The mental states of intentionally, knowingly, and recklessly.
¶31 Based on this record, we conclude that the trial court's jury instructions properly reflected the law. The jury was instructed on the requirement of a voluntary act and also on the effect of voluntary alcohol consumption. There was no burden shifting based on the AU instruction because the jurors were free to accept Smith's defense that his actions were involuntary and the result of sleep-driving, and the burden of proving a voluntary act remained on the State.
¶32 For these reasons, we conclude that the trial court's jury instruction on alcohol use did not violate Smith's due process rights, and the jury was correctly instructed on the State's burden of proof, the requirement of a voluntary act, and the effect of voluntary alcohol consumption.
The AU Jury Instruction Was Not Confusing
¶33 Smith alternatively argues that the AU instruction was "hopelessly confusing." This argument, like the previous one, is based on Smith's contention that the AU instruction created a constitutionally impermissible mandatory presumption that preempted any finding of an involuntary act.
¶34 For the same reasons as set forth above, we do not agree that the AU instruction created a mandatory presumption or that it shifted the burden of proof to Smith. See supra 55 26-29.
¶35 Smith also asserts that the AU instruction confused the jury when the State took advantage of the AU instruction during closing arguments. We will only find reversible error when the instructions, taken as a whole, may have misled the jury. State v. Sucharew, 205 Ariz. 16, 26, ¶ 33, 66 P.3d 59, 69 (App. 2003).
¶36 Smith's attorney's closing argument included the following statements:
I can think of only three possibilities in this case. One, my defense, Mr. Smith's defense; there is a sleep issue going on here; two, blackout; three, he just [was] drunk driving. Look at the facts other than [the drunken] driving accident.
. . .
Voluntary act. If at the time the accident occurs Chris was in a sleep - some sort of sleep state, he was unconscious and it was not a voluntary act.
. . .
And when you look at the facts, I think the state cannot prove beyond a reasonable doubt that this is a voluntary act. And if the state cannot prove that this is a voluntary act, he is not criminally responsible for this accident.
. . .
But if he was not conscious, he's not criminally responsible. And the state
cannot prove beyond a reasonable doubt that he was not, that this is not a sleep issue.
¶37 Responding on behalf of the State, the prosecutor made the following argument:
Defense counsel told you that you have three options in this case; sleep-walking, blackout, or drunk driving. We're asking you to choose option 3.
. . .
Now, towards the end of his closing he said something along the lines of: The state has to prove that he was not -- you know, that he was not asleep. That's false, not true. If you look [at] your jury instructions, show me where in here on the elements of the offense that we have to prove that. All we have to prove is that it was a voluntary act. And we did that because we talked about how the defendant took a 2000-pound vehicle barreling down Pecos, impaired by alcohol, and slammed into a family.
¶38 Also during the State's closing argument, Smith objected to the following statements by the prosecutor:
But there is one thing that the defense could not answer, and it's a piece of the law that you have been given in your instructions. And the law is very powerful and it controls your deliberations, so let's talk about that.
On page 9, there is an instruction that says effects of alcohol use[.]
It is not a defense to any criminal act if the criminal acts were committed due to temporary intoxication resulting from the voluntary consumption of alcohol. Guess what? Game over. He's guilty. He drank to the point where he was completely intoxicated. They can't get around the law.
¶39 Smith cites State v. Johnson, 205 Ariz. 413, 417, ¶ 11, 72 P.3d 343, 347 (App. 2003), for the proposition that "[t]his Court also construes instructions in the context of closing arguments of counsel." See also State v. Bruggeman, 161 Ariz. 508, 510, 779 P.2d 823, 825 (App. 1989) ("Closing arguments of counsel may be taken into account when assessing the adequacy of jury instructions.").
¶40 We have already concluded above that the jury instructions were adequate. The State's comments concerning the AU instruction did not place Smith at an unfair or inappropriate disadvantage. Both parties in our adversarial system are entitled to comment on the application of jury instructions to the facts supported by the record. The State was entitled to make the argument set forth above, and the fact that the State made the argument does not reveal any error in the instructions to the jury.
CONCLUSION
¶41 For the foregoing reasons, we conclude that the trial
court did not err by giving the jury the AU instruction, and we accordingly affirm Smith's sentences and convictions.
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JOHN C. GEMMILL, Judge
CONCURRING:
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JON W. THOMPSON, Presiding Judge
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MAURICE PORTLEY, Judge