Opinion
1 CA-CR 12-0219
05-02-2013
STATE OF ARIZONA, Appellee, v. JASON WAYNE YORDT, Appellant.
Thomas C. Horne, Attorney General by Joseph T. Maziarz, Acting Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Roser Law Office by Samuel J. Roser Attorney for Appellant Jason Wayne Yordt, 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(Not for Publication -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 Navajo County
Cause No. S0900CR201000781
The Honorable Robert B. Van Wyck, Judge Pro Tempore
AFFIRMED
Thomas C. Horne, Attorney General
by Joseph T. Maziarz, Acting Chief Counsel,
Criminal Appeals/Capital Litigation Section
Attorneys for Appellee
Phoenix Roser Law Office
by Samuel J. Roser
Attorney for Appellant
Snowflake Jason Wayne Yordt, Appellant Tucson PORTLEY, Judge ¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for Defendant Jason Wayne Yordt has advised us that he has been unable to discover any arguable questions of law after searching the entire record, and has filed a brief requesting us to conduct an Anders review of the record. Defendant was given the opportunity and filed a supplemental brief for our review and consideration.
FACTS
We view the facts "in the light most favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant." State v. Rienhardt, 190 Ariz. 579, 588-89, 951 P.2d 454, 463-64 (1997).
¶2 Yordt fatally shot the victim on October 27, 2010. After his arrest at the hospital in Show Low, he was subsequently indicted for second degree murder. He pled not guilty and the case proceeded to trial. Yordt filed an unsuccessful motion for directed verdict after the State completed its presentation. Yordt then took the stand in his own defense and testified that he shot the victim, but in self defense. Specifically, he told the jury that the victim had been threatening and berating him over a $1100 drug debt; that the victim took Yordt's gun, but returned it to him; and that when the victim was near the door, "he turned around and started to come at me with the hammer and I stood up and shot him." He then ran from the house, got into a stranger's car and was driven to the hospital. ¶3 The court read the final jury instructions, which included lesser-included homicide offenses, before closing arguments. After deliberating, the jury found Yordt guilty as charged. He was subsequently sentenced to the presumptive term of sixteen years in prison and given credit for 513 days of presentence incarceration. We have jurisdiction over this appeal pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031, and -4033(A)(1) (West 2013).
Yordt was also indicted in Navajo County Cause No. CR 201000782 for first and second degree murder. After he filed a motion to remand, that case was dismissed pursuant to stipulation.
DISCUSSION
¶4 Yordt raises a number of issues in his supplemental brief. Although he did not distinctly organize his issues, our review finds six issues. Specifically, he argues the following errors require setting aside his conviction and sentence and ordering a new trial: (1) the trial court failed to give a crime prevention instruction; (2) the evidence was insufficient to convict him for second degree murder; (3) his confession was not properly corroborated; (4) prosecutorial misconduct; (5) denial of his request for substitute counsel; and (6) ineffective assistance of counsel. We will address each in turn.
I. Jury Instructions ¶5 Yordt raises two errors under jury instructions. First, he argues that the court erred by failing to give the crime prevention instruction. Second, he contends the court erred by instructing the jury that words alone cannot be provocation. In assessing the adequacy of jury instructions, we look at all the instructions to determine whether they accurately reflect the law. State v. Garcia, 224 Ariz. 1, 18, ¶ 75, 226 P.3d 370, 387 (2010). ¶6 Yordt contends that the trial court erred when it failed to give the crime justification defense instruction pursuant to A.R.S. § 13-411 (West 2013). He concedes, however, that the instruction was not requested and he did not object to its omission. As a result, we review the issue for fundamental error. See State v. Karr, 221 Ariz. 319, 321, ¶ 10, 212 P.3d 11, 13 (App. 2008). ¶7 Section 13-411 provides that a person is "justified in threatening or using both physical force and deadly physical force against another" to prevent the other person from committing manslaughter, murder, or aggravated assault that occurs in the person's home or residence without the need to retreat. A.R.S. § 13-411. The instruction should be given if any evidence supports the theory. See State v. Hussain, 189 Ariz. 336, 337, 942 P.2d 1168, 1169 (App. 1997). ¶8 Before a trial court is required to give the instruction, however, the court has to ensure it applies. In State v. Barraza, this court examined the applicability of § 13-411 after Barraza unsuccessfully requested the instruction to justify the fact that she stabbed the victim about sixty times with a sharp instrument. 209 Ariz. 441, 443-46, ¶¶ 2, 6-16, 104 P.3d 172, 174-77 (App. 2005). Despite her claim that she was repelling a sexual attack, this court determined that the trial court properly refused to give the instruction because the crime prevention instruction should only be given if a resident of the house uses force to protect the residence or a resident. Id. at 446, ¶¶ 16-17, 104 P.3d at 177. Because Barraza was not a resident of the house or protecting a resident of the house, we affirmed her conviction. Id. at 446-47, ¶¶ 16-17, 22, 104 P.3d at 177-78. ¶9 Here, the trial court did not err by not giving the crime prevention instruction. First, Yordt did not request the instruction. Second, he did not live at the victim's residence, but had asked an acquaintance to drive him there. Although he argues that he testified that he was "threatened, badgered and held captive against his wishes" by the victim who had a hammer, as we stated in Barraza, the crime prevention instruction should only be given when one is in his home or residence and threatened with physical or deadly violence. Consequently, the court did not err by not giving the crime prevention instruction. ¶10 Yordt also contends that the court erred by instructing the jury over his objection that a defendant is not justified in threatening physical force against another in response to verbal provocation alone. We review the ruling for an abuse of discretion. State v. Dann, 220 Ariz. 351, 363-64, ¶ 51, 207 P.3d 604, 616-17 (2009). ¶11 We find no abuse of discretion. The instruction is a correct statement of law. Section 13-404(B)(1) states that the threat or use of physical force against another is not justified in response to verbal provocation. A.R.S. § 13-404(B)(1) (West 2013). ¶12 The facts also supported the instruction. Because no hammer was found on the floor near the victim, the jury had to resolve whether Yordt shot the victim after an argument or whether he had been threatened with a hammer. The instruction was part of the self-defense instruction, and allowed the jury, as the fact finder, to apply the law to the facts as they found them. Consequently, the court did not abuse its discretion by giving the instruction. ¶13 Yordt also alleges that the court prevented him from asserting a complete defense and improperly allowed the State to shift the burden of proof to him to demonstrate that he attempted to retreat. Yordt's argument, however, is based on the absence of the crime prevention instruction. Because the court could not give the crime prevention instruction under the facts of this case, the court did not shift the burden of proof or deprive Yordt of the ability to present a complete defense.
Yordt cites to State v. Brothers, 1 CA-CR 10-0730, 2012 WL 4086392 (Ariz. App. Sept. 9, 2012) (mem. decision) to support his argument. Because it is an unpublished decision, it cannot be cited and we will disregard the references to it. See Ariz. R. Crim. P. 31.24.
II. Sufficiency of the Evidence ¶14 Yordt argues that the State did not produce sufficient evidence to convict him. We disagree. ¶15 Second degree murder is defined in A.R.S. § 13-1104 (West 2013). The State had to prove beyond a reasonable doubt that: (1) Yordt intentionally caused the victim's death; or (2) he acted knowing that his conduct could cause the victim's death or serious physical injury; or (3) he recklessly engaged in conduct that created a grave risk of death which caused the death of the victim. ¶16 The State had to present sufficient evidence to get by the Rule 20 motion. Substantial evidence is proof that reasonable persons could accept as adequate and sufficient to support the conclusion of guilt beyond a reasonable doubt. State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990); State v. Sullivan, 205 Ariz. 285, 287, ¶ 6, 69 P.3d 1006, 1008 (App. 2003). We will reverse a conviction only "where there is a complete absence of probative facts to support the conviction." State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (citation omitted). ¶17 Here, there was substantial evidence to get past the Rule 20 motion and allow the jury to consider all the evidence. The State presented evidence that Yordt, who had the gun in his possession, shot the victim in the face. Although the defense by cross-examination tried to demonstrate that Yordt shot "scary-L[]" in self defense, the evidence suggested that the victim did not have a hammer in his hand at the time he was shot. In fact, only after Yordt testified as to his version of the events did the issue become whether the shooting was justified. With the jury instructions, the jury then had to consider all the evidence and "determine what the facts [were] in this case by determining what actually happened," which would require resolving the credibility of witnesses. The verdict represents the jury's analysis of the facts and law. Consequently, there was substantial evidence to support the verdict beyond a reasonable doubt. ¶18 Yordt, however, argues that the State failed to show that the crime was cruel, heinous, or committed in a depraved manner. Yordt's argument misstates the law. The phrase cruel, heinous, or depraved is only relevant in a premeditated first degree murder case and only if the State is trying to show those facts to attempt to justify the death sentence. See A.R.S. § 13-751(F)(6) (West 2013); State v. Womble, 225 Ariz. 91, 100, ¶ 34, 235 P.3d 244, 253 (2010). Because Yordt was charged with second degree murder, he could not be sentenced to the death penalty. The State, as a result, did not need to prove the "(F)(6) aggravator" to meet its burden to prove second degree murder. Consequently, there was substantial evidence to support the verdict.
In his supplemental brief, Yordt states that the victim had "constructive possession of the weapon," which undermines his trial testimony.
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III. Confession ¶19 Yordt complains that his confession cannot be used to convict him in the absence of other evidence. Because there was other evidence supporting his confession, we disagree. ¶20 In State v. Jones ex rel. Cnty. of Maricopa (Roche), 198 Ariz. 18, 6 P.3d 323 (App. 2000), this court stated that the corpus delicti rule requires the State to demonstrate "proof of a crime and that someone is responsible for that crime." Id. at 22, ¶ 12, 6 P.3d at 327. Here, the State presented corpus delicti evidence: (1) the medical examiner testified that the victim had been shot in the face and died from the wound; (2) a witness testified that she drove Yordt, who had a gun, to the victim's house; the victim was alive when she saw him return the gun to Yordt; she went back to the car and within fifteen to twenty minutes saw Yordt running out of the house with a gun in his hand; and she went inside the house and saw the victim's body laying inside the house; and (3) the State presented evidence through various witnesses that they did not see or perceive any animosity between the victim and Yordt. Consequently, even if Yordt had not testified, the State presented substantial evidence that a homicide had occurred and Yordt was responsible for the victim's death.
IV. Prosecutorial Misconduct ¶21 Yordt claims that the State committed misconduct during the opening statement and closing argument. He specifically argues that the State was responsible for leading the jury away from his justification defense. We disagree. ¶22 We generally review prosecutorial misconduct claims to determine whether the defendant was denied a fair trial. State v. Hallman, 137 Ariz. 31, 37, 668 P.2d 874, 880 (1983). There are two reasons that we cannot find any prosecutorial misconduct in this case. First, the opening statement and closing argument are not part of the record on appeal. Although Yordt claims the State made "insidious innuendos," his supplemental brief admits that there were no objections during the opening statement and closing argument. The court, moreover, commented during the sentencing hearing that both sides did a "professional and competent job in presenting this case." We presume that missing portions of the record will support the actions and comments of the trial court. State v. Zuck, 134 Ariz. 509, 513, 658 P.2d 162, 166 (1982). ¶23 Second, we are also mindful that the court instructed the jury that in "their opening statements and closing arguments the lawyers have talked to you about the law and the evidence [and] [w]hat the lawyers said is not evidence but it may help you to understand the law and the evidence." We presume the jurors followed the court's instructions. State v. Newell, 212 Ariz. 389, 403, ¶ 69, 132 P.3d 833, 847 (2006). Consequently, there is nothing in the record on appeal that suggests that there was prosecutorial misconduct that denied Yordt a fair trial or would require a new trial. See State v. Atwood, 171 Ariz. 576, 611, 832 P.2d 593, 628 (1992).
V. Request for Substitute Lawyer ¶24 Yordt also contends the trial court erred by failing to conduct a hearing before denying his request for a new lawyer. We review the ruling for an abuse of discretion. State v. Cromwell, 211 Ariz. 181, 186, ¶ 27, 119 P.3d 448, 453 (2005). ¶25 The record reveals that Yordt filed a handwritten motion only with the court (ex parte motion) asking the court to remove his two lawyers and their investigator. The motion alleged that his lawyers only seemed to be interested in reaching a plea with the State. He told the court that he was looking for a private lawyer, but if necessary, he would represent himself. He ended his ex parte motion by noting that his lawyers "tend to not even answer my calls either." The court denied his request. ¶26 The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to be represented by counsel. U.S. Const. amend. VI; see also Ariz. Const. art. 2, § 24. "A defendant is not, however, entitled to counsel of choice, or to a meaningful relationship with his or her attorney." State v. Moody, 192 Ariz. 505, 507, ¶ 11, 968 P.2d 578, 580 (1998). The right to counsel is violated whenever a defendant is "forced to go to trial with counsel" when there has been a "complete breakdown in communication" or an "irreconcilable conflict." State v. Torres, 208 Ariz. 340, 342, ¶ 6, 93 P.3d 1056, 1058 (2004). ¶27 To protect a defendant's Sixth Amendment right, the court should inquire why defendant wants substitute counsel and the inquiry should be on the record. Id. at 343, ¶ 7, 93 P.3d at 1059. "The nature of the inquiry will depend upon the nature of the defendant's request," and "generalized complaints about differences in strategy may not require a formal hearing or an evidentiary proceeding." Id. at ¶ 8. ¶28 Here, Yordt filed his ex parte motion less than two months before the first day of trial. He did not allege a complete breakdown in communication or irreconcilable conflict. He only complained that his lawyers seemed only to want him to settle the case, and he preferred to have someone other than a Navajo County public lawyer. Cases in which irreconcilable conflict have been found have included those in which the defendant and attorney were "almost at blows and were antagonistic towards each other." Moody, 192 Ariz. at 508, ¶ 16, 968 P.2d at 581 (internal quotation marks omitted). Yordt's motion did not describe an irreconcilable conflict. ¶29 Although Yordt argues that the failure to have a hearing is structural error, we disagree. We presume that the court knew and applied the law. See State v. Ramirez, 178 Ariz. 116, 128, 871 P.2d 237, 249 (1994). Moreover, because Yordt had counsel, he was not entitled to file an ex parte motion on his own behalf. See State v. Cornell, 179 Ariz. 314, 325, 878 P.2d 1352, 1363 (1994). Consequently, the court did not err by denying the ex parte motion without a hearing.
VI. Ineffective Assistance of Counsel ¶30 The final claim in Yordt's supplemental brief is that his trial lawyers were ineffective in a number of ways. We will not examine those issues on appeal because those claims can only be pursued by filing a Rule 32 petition for post-conviction relief. See State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002).
VII. Anders Review ¶31 We have completed our analysis of the opening and supplemental briefs, and addressed the issues presented in the supplemental brief. We have also searched the entire record for reversible error. See Leon, 104 Ariz. at 300, 451 P.2d at 881. We have found no fundamental or reversible error. Moreover, our review of the record reveals that the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. Our review of the sentence reveals that the presumptive prison sentence was within the statutory limits. ¶32 After this decision is filed, counsel's obligation to represent Yordt on appeal will have ended. Counsel must only inform him of the status of the appeal and his future options, unless counsel identifies an issue appropriate for submission to the Arizona Supreme Court by petition for review. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Yordt, however, may file a petition for review pursuant to the Arizona Rules of Criminal Procedure.
CONCLUSION
¶33 Accordingly, we affirm Yordt's conviction and sentence.
_____________________
MAURICE PORTLEY, Presiding Judge
CONCURRING: _____________________
PATRICIA A. OROZCO, Judge
_____________________
RANDALL M. HOWE, Judge