Opinion
No. 2 CA-CR 2018-0225
04-23-2020
THE STATE OF ARIZONA, Appellee, v. STEVEN ANAYA, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee Joel Feinman, Pima County Public Defender By Abigail Jensen, 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NOT FOR PUBLICATION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
Nos. CR20164016001 and CR20174426001 (Consolidated)
The Honorable Howard Fell, Judge Pro Tempore
AFFIRMED IN PART; VACATED IN PART AND REMANDED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Diane Leigh Hunt, Assistant Attorney General, Tucson
Counsel for Appellee Joel Feinman, Pima County Public Defender
By Abigail Jensen, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Eppich authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred. EPPICH, Presiding Judge:
¶1 Steven Anaya appeals from his convictions and sentences stemming from a shooting incident. He argues the trial court abused its discretion by failing to give a self-defense jury instruction, precluding him from making a self-defense argument in closing, and making an improper comment on the evidence. For the reasons that follow, we vacate Anaya's convictions and sentences for first-degree murder, attempted first-degree murder, and aggravated assault, and remand for a new trial on those charges. We affirm his conviction and sentence for unlawful possession of a firearm.
Factual and Procedural Background
¶2 "We view the evidence in the light most favorable to a defendant's request for a self-defense instruction." State v. Carson, 243 Ariz. 463, ¶ 2 (2018).
¶3 One August afternoon, F.R. and his cousin A.G. picked up Anaya in a truck. Anaya testified he was expecting to conduct a drug deal with A.G. The two men drove him to a nearby duplex and a fourth, unidentified, man emerged and got into the backseat of the truck next to Anaya. As F.R. drove the three men, A.G. confronted Anaya from the front passenger's seat and told Anaya he owed them a lot of money. Tempers flared; Anaya punched A.G. in the face, then opened the backseat door to try to escape. The unidentified man then pointed a gun at Anaya's head; Anaya closed the door and F.R. continued to drive.
Anaya testified that A.G.—his drug supplier—was confronting him about two hundred pounds of marijuana he had stolen from A.G. in 2010.
¶4 According to Anaya, when the unidentified man glanced toward the front seat, Anaya grabbed the gun's grip and tried to "bend" it out of the man's hand. As they struggled for the gun, the unidentified man fired the gun two or three times. Anaya eventually wrestled the gun away and pointed it at F.R. When F.R. ignored Anaya's demand that he pull over, Anaya shot him. The truck slowed, and Anaya jumped out and ran into the desert.
¶5 Officers found F.R.'s truck later that day with A.G., dead from gunshot wounds to his head and body, still belted into the passenger seat. Approximately two weeks later, Anaya was arrested with the gun used in the shooting. F.R. testified at trial that there was no unidentified man inside the truck on the day of the shooting and that Anaya had intentionally shot A.G.
¶6 After a seven-day trial, a jury found Anaya guilty on all four counts and the trial court sentenced him to a term of natural life for first-degree murder, 7.5 years for aggravated assault, 5 years for attempted first-degree murder, and 2.5 years for unlawful possession of a firearm by a prohibited possessor. The aggravated assault sentence is consecutive to the first-degree murder life sentence and the attempted murder and prohibited possessor sentences are concurrent. We have jurisdiction over Anaya's timely appeal pursuant to A.R.S. §§ 12-120.21, 13-4031, and 13-4033.
Self-Defense Jury Instruction
¶7 At trial, Anaya requested various justification instructions under A.R.S. §§ 13-404, 13-405, and 13-411. The trial court granted Anaya a self-defense instruction under § 13-405 in regards to the unidentified man, although Anaya was not charged with committing any crime against that man. The court refused to grant Anaya the same self-defense instruction in regard to A.G. and added the following statement to the jury instructions: "[t]his instruction regarding deadly physical force applies only to the relationship between [Anaya] and the unidentified person if the jury finds that a fourth person was present." The court indicated "[t]here's absolutely no evidence whatsoever that [A.G.] threatened [Anaya] in any way other than some words" and Anaya did not "display anything that would indicate" or show "that a reasonable person could believe that he was in fear of being killed, that deadly force was going to be used against him."
Anaya was granted a § 13-411 crime-prevention justification instruction in regard to F.R. and he does not argue on appeal that he was entitled to such an instruction for either A.G. or the unidentified man.
During jury instruction deliberations, the court explained to counsel that it added this statement to "clearly indicate[] to the jury that self-defense doesn't apply between [Anaya] and [A.G.]."
¶8 Anaya argues that the trial court abused its discretion by refusing to grant the self-defense instruction in regard to A.G. "We review a trial court's refusal to instruct on self-defense for an abuse of discretion, viewing the evidence in the light most favorable to the defendant." Carson, 243 Ariz. 463, ¶ 17. However, "we independently assess whether the evidence supported a justification instruction, because that is a question of law and involves no discretionary factual determination." State v. Almeida, 238 Ariz. 77, ¶ 9 (App. 2015). "Under this standard, a court does not weigh the evidence or resolve conflicts in it" and it is irrelevant whether "the evidence of justification was fairly debatable and contradicted by other evidence." Id. ¶¶ 9, 11. "[T]he court merely decides whether the record provides evidence 'upon which the jury could rationally sustain the defense.'" Id. ¶ 9 (quoting State v. Strayhand, 184 Ariz. 571, 587-88 (App. 1995)).
¶9 "A person is justified in using physical force against another, and does not commit a crime, 'when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful physical force.'" Carson, 243 Ariz. 463, ¶ 9 (quoting § 13-404(A)). "Similarly, deadly force is justifiably used if § 13-404(A) is satisfied and 'a reasonable person would believe that deadly physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly physical force.'" Id. (quoting A.R.S. § 13-405(A)). These two justification defenses use objective standards that look at what a reasonable person would have done in the defendant's circumstances rather than what the defendant's subjective beliefs were. See State v. King, 225 Ariz. 87, ¶¶ 11-12 (2010) ("Section 13-404(A) . . . adopts a purely objective standard.").
¶10 A defendant is not required to introduce evidence of each element of self-defense to receive a self-defense instruction. Carson, 243 Ariz. 463, ¶ 19. Instead, "if the slightest evidence supports a finding of self-defense, the prosecution must prove its absence" and "if the case is tried to a jury, the trial court must give a self-defense instruction, if requested and supported by some evidence." Id. ¶ 16. The slightest evidence standard presents a low threshold whereby a "defendant need only show some evidence of 'a hostile demonstration, which may be reasonably regarded as placing [him] apparently in imminent danger of losing [his] life or sustaining great bodily harm.'" Id. ¶ 19 (quoting State v. Lujan, 136 Ariz. 102, 104 (1983)); see also Lujan, 136 Ariz. at 104 (describing a "hostile demonstration" as an outward act that can be perceived as immediately life threatening).
¶11 "The sole question is whether a reasonable person in the defendant's circumstances would have believed that physical force was 'immediately necessary to protect himself.'" King, 225 Ariz. 87, ¶ 12 (quoting § 13-404(A)). To meet the slightest evidence standard, a defendant does not have to show that a victim in fact assaulted or threatened him because even a "mistaken belief can be a reasonable one." See Carson, 243 Ariz. 463, ¶ 21. Furthermore, in cases involving multiple assailants, one is allowed to consider the number of persons reasonably appearing to be involved in the hostile demonstration. Id. ¶ 22 (finding that a victim's presence in a scrum permitted a reasonable person in defendant's circumstances to believe that this victim was one of the multiple assailants); see also People v. Jones, 675 P.2d 9, 13 (Colo. 1984) (finding that a self-defense instruction limited to one of multiple assailants "improperly restricted defendant's right to assert self-defense in a multiple assailant situation"); State v. Cooper, 993 P.2d 745, 748 (N.M. Ct. App. 1999) ("When two or more persons undertake overt action to harm another, the victim may use an appropriate amount of force to defend himself against either aggressor, or both of them.").
¶12 The state contends that even if there was a criminal conspiracy against Anaya, A.G.'s physically passive involvement was not sufficient to warrant a self-defense instruction. In so arguing, the state overlooks the fact that viewing the evidence in the light most favorable to Anaya, there is some evidence that A.G. directed a hostile demonstration against Anaya by multiple assailants. According to Anaya, the confrontation in the truck was over Anaya's betrayal of A.G., and the gunman used A.G.'s gun and had been picked up at A.G.'s direction. A rational juror could conclude that Anaya reasonably believed A.G. could kill him by merely telling the gunman to pull the trigger. Anaya's testimony that the dispute involved money and drugs Anaya had stolen from A.G. provided A.G. a motive to do so.
¶13 Therefore, at least the slightest evidence exists that there was a hostile demonstration which may be reasonably regarded as placing Anaya in imminent danger from A.G. of losing his life or sustaining great bodily harm. Since the slightest evidence exists, Anaya was entitled to a self-defense instruction in regard to A.G. See Carson, 243 Ariz. 463, ¶ 16. By restricting the self-defense instruction to the unidentified man, the court prohibited the jury from considering Anaya's apprehension of physical violence from others acting in concert with the gunman. See Jones, 675 P.2d at 13-14 ("[U]nder the court's instruction, the defendant's apprehension of physical violence from others acting in concert with his principal assailant became an irrelevant consideration and thereby vitiated the defendant's right to act upon reasonable appearances in a multiple assailant attack.").
¶14 Nevertheless, the state suggests that a self-defense instruction is "legally unwarranted" when a defendant testifies that a shooting was accidental because the defenses are inconsistent. But even assuming that these defenses in this case were inconsistent, our supreme court recently concluded that a defendant may simultaneously deny physically injuring a victim and still claim self-defense even though the defenses are inconsistent, so long as the slightest evidence supports a finding of self-defense. See Carson, 243 Ariz. 463, ¶¶ 10, 16. The Carson court rejected the state's argument that simultaneously permitting misidentification and justification defenses would confuse the jury and determined that juries can sort through conflicting defenses. Id. ¶ 13. "The rule in favor of inconsistent defenses reflects the belief of modern criminal jurisprudence that a criminal defendant should be accorded every reasonable protection in defending himself against governmental prosecution." Id. ¶ 14 (quoting United States v. Demma, 523 F.2d 981, 985 (9th Cir. 1975)).
¶15 Notably, the state does not address Carson in its answering brief and does not cite any authority from Arizona, nor are we aware of any, that explicitly holds that a defendant cannot assert inconsistent defenses, except for entrapment. The state cites People v. Purrazzo, 420 N.E.2d 461 (Ill. App. Ct. 1981), for the proposition that one cannot simultaneously assert accident and self-defense at trial. Although Purrazzo suggested that a use-of-force instruction should not be given where a defendant's own testimony is that a killing was accidental, Purrazzo acknowledged this does not apply when "there is some evidence from which the jury could find that the killing was the result of the threats or provocation that preceded it." Id. at 468. This case is distinguishable from Purrazzo because here there is evidence from which the jury could find that A.G.'s death was the result of the threat that A.G. posed to Anaya.
See State v. Soule, 168 Ariz. 134, 137 (1991) ("When a defendant testifies that he did not commit the elements of the offense charged, the entrapment defense is not a plausible alternate legal theory of the case."); see also Carson, 243 Ariz. 463, ¶ 15 (finding legislature codified rule forbidding inconsistent defense in A.R.S. § 13-206(A) for entrapment cases).
¶16 "It is primarily the province of the jury to determine the credibility of witnesses and to find the facts." State v. Fischer, 242 Ariz. 44, ¶ 19 (2017). The jury is entitled to sort out the truth of conflicting defenses and "weigh contradictory testimonies and believe parts of each." Carson, 243 Ariz. 463, ¶ 13 (citing State v. Dugan, 125 Ariz. 194, 196 (1980)). A combination of the state's evidence and the defendant's evidence can support a self-defense instruction even if the evidence directly contradicts some of the defendant's testimony. See People v. Brown, 83 N.E.3d 31, ¶ 24 (Ill. Ct. App. 2017) ("[A] defendant is entitled to the benefit of any defense shown by the entire evidence, even if the facts on which such defense is based are inconsistent with the defendant's own testimony."); State v. Broughton, 425 N.W.2d 48, 51 (Iowa 1988) ("State courts have generally held that a defendant is entitled to the benefit of any defense shown by the evidence, even if the facts on which such defense is based are inconsistent with the defendant's own testimony."). Here, a rational juror could have believed Anaya intentionally shot A.G., contrary to his own testimony and consistent with the state's evidence and theory of the case, yet still found that Anaya was justified in doing so because there were three people acting together to confront him over a past betrayal and large debt owed, and threatening him with a firearm. Therefore, Anaya should have received a self-defense instruction in regard to A.G.
Anaya claimed he was acting in self-defense but the shots were accidently fired at A.G. by the unidentified man. The state's theory at trial was that Anaya intentionally shot A.G. without any argument or fourth person in the truck.
Harmless Error
¶17 When a defendant has preserved his issues for appeal, harmless error review applies and "places the burden on the state to prove beyond a reasonable doubt that the error did not contribute to or affect the verdict or sentence." State v. Henderson, 210 Ariz. 561, ¶ 18 (2005). Under the harmless error standard, "the question 'is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.'" State v. Leteve, 237 Ariz. 516, ¶ 25 (2015) (quoting Sullivan v. Louisiana, 508 U.S. 275, 279 (1993)).
¶18 As an initial matter, we reject the state's contention that the issue is waived. Anaya adequately preserved the issue for appeal by arguing below that he should have been entitled to a self-defense instruction in regard to A.G. because A.G., F.R., and the unidentified man were acting together to confront him. The state argues that "any error in failing to give the instruction was harmless beyond any doubt in light of the guilty verdicts that necessarily evinced the jurors' unanimous rejection of Anaya's dual claims" of accident and preventing his own kidnapping. But if it were true that a guilty verdict negated error in a jury instruction, every erroneous jury instruction would be harmless. The danger from the erroneous jury instruction here is that it prevented the jury from considering the evidence at all with respect to self-defense against A.G. Cf. Rosen v. Knaub, 175 Ariz. 329, 331 (1993) ("[E]very reasonable precaution must be taken to avoid instructions that might cause jurors to view the evidence in accordance with what they believe to be the court's judgment as to its weight rather than their own." (Quotation omitted.)); see also State v. Corona, 188 Ariz. 85, 90 (App. 1997) (advising against instructions that impose the court's judgment on the jury).
At trial, Anaya suggested A.G., F.R., and the unidentified man were engaged in a conspiracy to kill him, A.G. was "the one that's behind the threatening of [Anaya]" by the unidentified man, and there was "circumstantial evidence that the jury can infer that A.G. is involved in what the man with the gun in the back seat is doing." And, although Anaya's argument focused primarily on the self-defense instruction with respect to A.G., he also argued the instruction applied to all of the charges (except the count charging him with unlawful possession of the firearm on the date of his arrest), and his proposed jury instruction was not victim-specific.
¶19 We cannot conclude that the denial of the self-defense instruction regarding both A.G. and F.R. had no effect on the verdict. Omitting a self-defense instruction in this case relieved the state of the burden of proving an element of the offenses—the lack of self-defense. See Carson, 243 Ariz. 463, ¶ 11 ("[O]nce sufficient self-defense evidence is admitted, the absence of self-defense becomes an additional element the state must prove to convict."). Notably, the state has not argued that the error is harmless on any other basis. Therefore, the state has not met its burden of proving that the guilty verdicts relating to the shootings actually rendered in this trial were surely unattributable to the error.
As at trial, on appeal Anaya focuses almost exclusively on the trial court's failure to give the self-defense instruction with respect to the charge involving A.G. In doing so, he has arguably waived any claims of error as to the charges involving F.R. by failing to adequately develop them. See State v. Bolton, 182 Ariz. 290, 298 (1995) (failure to develop legal argument waives issue on review). Nevertheless, because Anaya's opening brief does request that we reverse his convictions and sentences generally, and because the applicability of the self-defense instruction to the attempted murder and aggravated assault charges is manifest under Carson, we decline to find waiver here. See Noriega v. Town of Miami, 243 Ariz. 320, ¶ 27 (App. 2017) ("The doctrine of waiver is discretionary.").
Disposition
¶20 For the foregoing reasons, Anaya's convictions and sentences for first-degree murder, attempted first-degree murder, and aggravated assault are vacated and we remand for a new trial consistent with this decision. His conviction and sentence on the charge of unlawful possession of a firearm by a prohibited possessor remains undisturbed because Anaya has failed to articulate any basis for reversal on appeal.
Our disposition makes it unnecessary to decide whether Anaya should have been allowed to argue self-defense in regard to A.G. in closing even if he was not entitled to the jury instruction and whether the trial court's limitation on the self-defense instruction was an improper comment on the evidence in violation of article VI, § 27 of the Arizona Constitution.