Opinion
2 CA-CR 2011-0246
11-06-2012
THE STATE OF ARIZONA, Appellee, v. JACOB MAGALLANES, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Joseph T. Maziarz, and Alan L. Amann Tucson Attorneys for Appellee Isabel G. Garcia, Pima County Legal Defender By Scott A. Martin Tucson 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Not for Publication Rule 111, Rules of the Supreme Court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. CR20103723001
Honorable Deborah Bernini, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Joseph T. Maziarz, and
Alan L. Amann
Tucson
Attorneys for Appellee
Isabel G. Garcia, Pima County Legal Defender
By Scott A. Martin
Tucson
Attorneys for Appellant
ECKERSTROM, Presiding Judge. ¶1 Appellant Jacob Magallanes was convicted after a jury trial of two counts of aggravated assault, one count based on his use of a deadly weapon (a firearm) and the other based on his having caused serious physical injury. After finding Magallanes admitted he had one historical prior felony conviction, a non-dangerous offense, the trial court sentenced him to concurrent, partially aggravated prison terms of ten years on each count. On appeal, Magallanes argues the court erred when it denied his request to give the jury an alibi instruction. We affirm for the reasons stated below. ¶2 Before Magallanes's first trial, which ended in a mistrial when the jury could not reach a verdict, he had disclosed pursuant to Rule 15.2, Ariz. R. Crim. P., that he would be raising an alibi defense, which would be supported by the testimony of his mother, Alma Magallanes. The judge who presided over that trial gave the jury an alibi instruction that was consistent with Revised Arizona Jury Instructions ("RAJI") No. 43.On the second day of Magallanes's second trial, which was held before a different judge, the parties discussed jury instructions shortly before the state rested; defense counsel requested the alibi instruction that the trial court had given in the first trial. The court responded, "I don't find there's sufficient evidence to support an alibi instruction," conceding Magallanes's last witness had not yet testified and inviting trial counsel to "make an avowal or offer of proof" with respect to the anticipated testimony. ¶3 Counsel avowed to the trial court that he expected Magallanes's mother to testify, as she had during the first trial, that she and Magallanes had been home all night and that Magallanes had been "home in the living room playing video games at 2:00 o'clock in the morning when the shooting took place." The court said it would allow Magallanes to introduce the testimony and would permit him "to argue it to the jury and they can take it into consideration." But, the court added, "I think that the jury instructions that the Court plans on giving are sufficient to cover that evidence that you plan on introducing, and I don't think there is sufficient evidence for me to give what would otherwise be a theory of the case instruction on alibi." ¶4 Alma Magallanes testified Magallanes had been living with her and she had seen him at home the night of the shooting, playing video games "from 2:00 a.m. until about 4:30." The state had introduced evidence earlier in the trial that Magallanes and two other men, Joey Avalos and Francisco Javier Martinez, had gone to the home of the victim, Robert M., and his younger brother, then sixteen-year-old Raymond, at around 2:00 or 3:00 in the morning on October 19, 2010, looking for Raymond. Raymond and Robert knew all three of these men; Robert testified he had known Magallanes for about three years. Raymond went outside, where the men were waiting. They became aggressive and tried to "jump" him; Raymond went back inside the house and woke up Robert. Robert testified he went outside the house and confronted the men. He testified further that Magallanes pulled a pistol-grip shotgun out of his pant leg and pointed it at Robert's face. When Robert shoved the shotgun away, Magallanes again pointed it at Robert's face and then pointed it to Robert's leg and fired, shattering Robert's femur "from [his] hip to [his] knee." ¶5 Robert told officers who had responded to the scene that "Jacob" had shot him. At around 5:00 that morning, a Tucson police officer who had been maintaining surveillance of Magallanes's house heard the "sound of a shotgun being racked," loaded or unloaded repeatedly. After other officers arrived, they found Magallanes outside in his carport, with a pump-action, pistol-grip shotgun containing three twelve-gauge Winchester slug shells, about ten feet away from him on the hood of a car in the carport. A shotgun shell found at the site of the shooting had Magallanes's DNA (deoxyribonucleic acid) on it. ¶6 Magallanes asserts on appeal that the trial court erred when it refused to give the requested alibi instruction, arguing that "[t]his issue is controlled by State v. Rodriguez, 192 Ariz. 58, 961 P.2d 1006 (1998)," which requires us to reverse the convictions. He maintains that in Rodriguez our supreme court rejected the same rationale from State v. Hess, 9 Ariz. App. 29, 33, 449 P.2d 46, 50 (1969), that the court gave here for denying the requested instruction: that other instructions sufficiently covered the evidence introduced through Alma Magallanes. See 192 Ariz. 58, ¶¶ 23-24, 961 P.2d at 1011. Also, relying on the RAJI and the comment thereto, Magallanes asserts the instruction must be given when the evidence supports it because the instruction reduces the risk that jurors will erroneously assume a defendant has the burden of proving an alibi. ¶7 We review a trial court's refusal to give a requested jury instruction for an abuse of discretion. State v. Moody, 208 Ariz. 424, ¶ 197, 94 P.3d 1119, 1162 (2004). A party is entitled to a jury instruction on any theory that is reasonably supported by the evidence. State v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995). As the supreme court stated in Rodriguez, when a court is deciding whether to give an alibi instruction, it should "first consider the sufficiency of the evidence to support an alibi defense." 192 Ariz. 58, ¶ 17, 961 P.2d at 1010. The Rodriguez court explained that "[e]vidence tending to show that the defendant had no opportunity to commit the crime because he was at another place when the crime occurred raises the alibi defense." Id. The court stated it had therefore considered "evidence tending to establish when the crime occurred and evidence showing defendant's whereabouts during that time." Id. In that case, because Rodriguez's alibi evidence, if believed by the jury, had "prevented him from committing the crime," he had presented sufficient evidence to warrant an instruction and the trial court had erred in refusing to give it. Id. ¶ 20. The court found the evidence "reasonably supported an alibi defense," id. ¶ 21, and agreed with Rodriguez that "the standard burden of proof instructions do not redress the risk of burden shifting engendered by alibi evidence." Id. ¶ 26. ¶8 We agree with Magallanes that if the jury believed Alma Magallanes, notwithstanding the state's efforts to impeach her credibility with purportedly inconsistent statements, it could have found Magallanes had been home between 2:00 and 4:00 a.m. And based on other evidence, the jury could have found the shooting took place at 2:00. Thus, Magallanes's "absence from the scene of the alleged crime at the time of its commission ma[de] it impossible for him to have committed it." State v. Hunter, 102 Ariz. 472, 477, 433 P.2d 22, 27 (1967). In this respect the case before us is distinguishable from State v. Berry, 101 Ariz. 310, 419 P.2d 337 (1966), upon which the state relies. ¶9 In Berry, our supreme court rejected the defendant's argument that the trial court had erred by refusing to give an alibi instruction, stating, "[A]libi literally means 'elsewhere' and thus signifies a lack of opportunity to commit an act because not present at the place where the act was committed." Id. at 313, 419 P.2d at 340. The state alleged Berry had committed the offense between 9:00 a.m. and 1:00 p.m. Id. at 311, 419 P.2d at 338. Berry called witnesses to testify that he had been with them between 10:30 a.m. and 12:30 p.m. on the day of the offense. Id. at 313, 419 P.2d at 340. The supreme court found that "[t]he defendant's efforts to establish an alibi defense . . . f[e]ll short of the mark" because the witnesses' testimony "account[ed] for only part of the time during which the crime was alleged to have been committed." Id. Thus, because the evidence left open the possibility that the defendant had committed the offense, the defendant had not presented a true alibi defense and an instruction was not warranted. Id. at 313-14, 419 P.2d at 340-41. Here, despite the fact that some of the evidence about when the shooting occurred was not precise and was presented as estimates or within ranges of time, from that evidence the jury could have found the shooting had taken place at or after 2:00 a.m. And if believed, Alma Magallanes's testimony placed Magallanes at home at or after 2:00 a.m., making it impossible for him to have committed the offense. ¶10 We conclude, therefore, that there was sufficient evidence to support the instruction and that the trial court's finding to the contrary was incorrect. So, too, was the court's additional reason for refusing to give the instruction, which was its belief that other instructions would be "sufficient to cover that evidence." As the court stated in Rodriguez, the importance of an alibi instruction is that it prevents jurors from "incorrectly assum[ing] that the defendant bears the burden of proving his alibi," and informs them that the defendant must be acquitted if the alibi evidence creates a reasonable doubt as to the defendant's guilt. 192 Ariz. 58, ¶ 25, 961 P.2d at 1011. The court added, the "standard instructions about the burden of proof provide a poor substitute for" an alibi instruction, id., because they "do not redress the risk of burden shifting engendered by alibi evidence." Id. ¶ 26. ¶11 We will not reverse a conviction based on a trial court's erroneous refusal to give a jury instruction, however, "if we can conclude, beyond a reasonable doubt, that the error had no influence on the verdict." Id. ¶ 27. Again we turn to Rodriguez for guidance. The court concluded the error was not harmless in that case, "[g]iven the lack of overwhelming proof of guilt and the importance of the alibi defense." Id. Reversing Rodriguez's convictions, the court noted there was "[o]nly one piece of evidence [that] linked defendant to the crime: a palm print on the murder weapon. In addition, the defense relied exclusively on the alibi theory." Id. ¶12 Magallanes suggests the importance of the instruction to the outcome of the trial in this case is illustrated by the fact that the first trial ended in a mistrial. But his argument is based on nothing more than speculation as to the reason the two trials had different outcomes. We conclude the error was harmless here because unlike in Rodriguez, an alibi was not at the heart of Magallanes's defense. Even though Magallanes called Alma Magallanes as a witness and thereby suggested he had an alibi for his whereabouts at the time of the shooting, he did not mention his mother's anticipated testimony during opening statement. And during summation, he never argued he could not have committed the offense because he had been at home, as his mother had asserted. Rather, Magallanes's theory of the case was that the state's witnesses were not credible and that the motivations at play among the men who were present when Robert was shot made Joey Avalos likely the shooter, not Magallanes. Magallanes also argued that he and the other men had been at Robert's house earlier in the evening, that Robert and his brother did not like Magallanes, and that he had a heated exchange of words with Robert about who was "top dog in [the] neighborhood." Magallanes suggested to the jury that Robert had named Magallanes as the shooter to get back at Magallanes for challenging Robert's authority in the neighborhood—and the accusing witnesses had avoided naming Avalos as the shooter because they feared him. In further support of that theory, he pointed to the fact that the jacket found at the scene, which had twelve-gauge shotgun shells matching the ejected shell found at the scene inside a pocket, was not his, but belonged to Avalos. ¶13 Given the relative insignificance of the alibi evidence in the context of the entire trial, Magallanes's complete lack of reference to the alibi evidence in opening and summation, and the thrust of Magallanes's theory of the case, we cannot say that the introduction of the alibi evidence could have confused jurors about the state's burden of proof. Consequently, no harm arose from the lack of an instruction designed to prevent that kind of confusion. See id. ¶ 25 (alibi instruction prevents jurors from assuming defendant has burden of proving alibi). Under the circumstances, we "conclude, beyond a reasonable doubt, that the error had no influence on the verdict." Id. ¶ 27. ¶14 We affirm the convictions and the sentences imposed.
______________________
PETER J. ECKERSTROM, Presiding Judge
CONCURRING: ______________________
JOSEPH W. HOWARD, Chief Judge
______________________
GARYE L. VÁSQUEZ, Judge
See State Bar of Arizona, Revised Arizona Jury Instructions (Criminal) Std. 43 (3d ed. Supp. 2011).