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State v. Neal

COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DEPARTMENT C
Feb 7, 2013
No. 1 CA-CR 11-0626 (Ariz. Ct. App. Feb. 7, 2013)

Opinion

No. 1 CA-CR 11-0626

02-07-2013

STATE OF ARIZONA, Appellee, v. RUEBEN RAY FREDERICK BEARD NEAL, Appellant.

Thomas C. Horne, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Division and Joseph T. Maziarz, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender by Charles R. Krull, 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(Not for Publication -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. CR2010-116616-001


The Honorable Sherry K. Stephens, Judge


AFFIRMED

Thomas C. Horne, Arizona Attorney General

by Kent E. Cattani, Chief Counsel,

Criminal Appeals/Capital Litigation Division

and Joseph T. Maziarz, Assistant Attorney General
Attorneys for Appellee
Phoenix James J. Haas, Maricopa County Public Defender

by Charles R. Krull, Deputy Public Defender
Attorneys for Appellant
Phoenix SWANN, Judge ¶1 Rueben Ray Frederick Beard Neal appeals his conviction and fifteen-year prison sentence for second degree murder. At trial, Neal's counsel agreed that the jury should be instructed on second degree murder as a lesser-included offense of first degree murder. Because the state disclaimed any intent to argue that Neal acted recklessly, Neal contends on appeal that the court erred when it instructed the jury that second degree murder could be committed with a reckless mental state. ¶2 We conclude that Neal invited the erroneous jury instruction. We therefore affirm.

FACTS AND PROCEDURAL HISTORY

"We view the facts in the light most favorable to sustaining the conviction[s]." State v. Musgrove, 223 Ariz. 164, 166, ¶ 2, 221 P.3d 43, 45 (App. 2009) (citation omitted).

¶3 On March 19, 2010, Neal and two friends, A.O. and D.H., drove to a gas station in Phoenix to pick up beer. J.M., J.V., and L.V. were also at the gas station buying beer. After leaving, Neal, A.O., and D.H. headed north on 107th Avenue and stopped at a red light behind a truck carrying J.M., J.V., and L.V. Occupants in both cars heard gunshots. L.V. was shot in the head and died at the scene. A.O. testified that after he heard the gunshots, he looked over at Neal and noticed a gun in his lap. A.O. drove to his home with Neal. Once at A.O's home, Neal got into his own car and drove away. That evening Neal turned himself in to the police. ¶4 Neal was indicted for first degree murder (Count 1), drive-by shooting (Count 2), and two counts of aggravated assault (Counts 3 and 4). Neal did not submit any requested jury instructions. At trial, the final jury instructions provided that if the jury did not find Neal guilty of Count 1, it could find him guilty of the lesser-included offense of second degree murder. The jury instructions described second degree murder as requiring proof of one of the following:

1. The defendant intentionally caused the death of another person; or
2. The defendant caused the death of another person by conduct which the defendant knew would cause death or serious physical injury; or
3. Under circumstances manifesting extreme indifference to human life, the defendant recklessly engaged in conduct that created a grave risk of death and thereby caused the death of another person. The risk must be such that disregarding it was a gross deviation from what a reasonable person in the defendant's situation would have done.
The difference between first degree murder and second degree murder is that second degree murder does not require premeditation by the defendant.
If you determine that the defendant is guilty of either first degree murder or second degree murder and you have a reasonable doubt as to which it was, you must find the defendant guilty of second degree murder.
At trial, neither party objected to the final jury instructions. ¶5 Immediately after the trial judge instructed the jury, she recognized that the instructions lacked a separate definition of "recklessness." The judge therefore called counsel to the bench, and conducted the following colloquy:
The Court: We didn't give them a definition of recklessly. Are you going to argue recklessly?
[State's Counsel]: I wasn't going to.
. . . .
[Neal's Counsel]: No, I'm not. I am arguing he didn't do it.
The Court: Okay. So I'm going to ask them to go to page eight and strike out all of Number 3.
[State's Counsel]: Probably would be better if you gave [the definition of recklessly] to them.
[Neal's Counsel]: I think . . . it's there because there is a definition for what a reasonable person would have done. That's reckless.
The Court: You don't believe --
[State's Counsel]: A separate definition is necessary? I don't.
[Neal's Counsel]: If the State is going to argue he act[ed] recklessly, I wouldn't have a problem. I don't think the State's going to argue he acted recklessly.
The Court: Okay. So you're both in agreement no reckless instruction needs to be given; is that correct?
[State's Counsel]: That's correct.
[Neal's Counsel]: Yes, Your Honor.
The case then proceeded to closing argument without amendment of the instructions and without objection. ¶6 The jury found Neal not guilty as to Counts 1-4. But it found him guilty of second degree murder, the lesser-included offense for Count 1. Neal filed a Motion for a New Trial and a Motion for Judgment of Acquittal, neither of which found fault with the jury instructions. The trial court denied both motions, and Neal received a fifteen-year prison sentence. Neal timely appeals. ¶7 We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A), 13-4031 and 13-4033.

Contrary to Neal's suggestion on appeal, the jury found Neal guilty of second degree murder, but did not specify that its verdict was based on "reckless" second degree murder.

STANDARD OF REVIEW

¶8 "Failure to bring error to the court's attention waives the error and removes the issue as a ground on which a new trial can be predicated." State v. Dann, 205 Ariz. 557, 575, ¶ 71, 74 P.3d 231, 249 (2003). If a defendant fails to object at trial to perceived error, we review only for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). "Fundamental error is limited to 'those rare cases that involve error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial.'" State v. Yegan, 223 Ariz. 213, 218, ¶ 19, 221 P.3d 1027, 1032 (App. 2009) (quoting Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607) (internal quotation marks omitted). The defendant has the burden to prove that an error was fundamental and that the error resulted in prejudice. Id. ¶9 Under the rule of invited error, "one who deliberately leads the court to take certain action may not upon appeal assign that action as error." In re MH2010-002348, 228 Ariz. 441, 445, ¶ 12, 268 P.3d 392, 396 (App. 2011) (citation omitted). The purpose of the doctrine is "to prevent a party from injecting error into the record and then profiting from it on appeal." State v. Armstrong, 208 Ariz. 345, 357 n.7, ¶ 59, 93 P.3d 1061, 1073 n.7 (2004). Therefore, under the rule of invited error, "when a party requests an erroneous instruction, any resulting error is invited and the party waives his right to challenge the instruction on appeal." State v. Logan, 200 Ariz. 564, 565, ¶ 8, 30 P.3d 631, 632 (2001).

DISCUSSION

¶10 Neal contends that the defense and state agreed that the jury would not be instructed on the lesser-included offense of reckless second degree murder, and that the trial court erred by failing to direct the jury to strike the language mentioning "recklessly" in the definition of second degree murder. We find no support for this contention in the record. ¶11 Assuming, without deciding, that an error occurred, we conclude that Neal's counsel invited the error by affirmatively arguing that the instructions were acceptable without amendment. When the state suggested that the definition of recklessness be read to the jury, Neal's counsel countered that the jury did not need a separate definition because the instruction already given was adequate. See Logan, 200 Ariz. at 566-67, ¶ 15, 30 P.3d at 633-34 (finding invited error when defendant requested an improper instruction); see also State v. Lucero, 223 Ariz. 129, 142, ¶ 44, 220 P.3d 249, 262 (App. 2009) (Hall, J., specially concurring). ¶12 To the extent that the instructions erroneously referred to a legal theory not argued by the parties, Neal's counsel invited that error after the court expressly gave him an opportunity to cure it. But even under a fundamental error analysis, jury instructions that referred to a legal theory that the state did not pursue during closing argument would not constitute "error going to the foundation of the case, error that takes from the defendant a right essential to his defense, [or] error of such magnitude that the defendant could not possibly have received a fair trial[,]" as Neal would have to show to implicate fundamental error. Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607 (citation omitted).

We further note that the record contains ample evidence upon which the jury could reasonably have convicted Neal of second degree murder.
--------

CONCLUSION

¶13 For the foregoing reasons, we affirm.

__________

PETER B. SWANN, Judge
CONCURRING: ________________________
PHILIP HALL, Presiding Judge
_________________
SAMUEL A. THUMMA, Judge


Summaries of

State v. Neal

COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DEPARTMENT C
Feb 7, 2013
No. 1 CA-CR 11-0626 (Ariz. Ct. App. Feb. 7, 2013)
Case details for

State v. Neal

Case Details

Full title:STATE OF ARIZONA, Appellee, v. RUEBEN RAY FREDERICK BEARD NEAL, Appellant.

Court:COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DEPARTMENT C

Date published: Feb 7, 2013

Citations

No. 1 CA-CR 11-0626 (Ariz. Ct. App. Feb. 7, 2013)

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