Opinion
No. 1 CA-CR 16-0545
07-10-2018
STATE OF ARIZONA, Appellee, v. MICHAEL ANTHONY STEEL, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Gracynthia Claw Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Lawrence H. Blieden Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2015-143015-001
The Honorable Sherry K. Stephens, Judge AFFIRMED IN PART, VACATED IN PART COUNSEL Arizona Attorney General's Office, Phoenix
By Gracynthia Claw
Counsel for Appellee Maricopa County Public Defender's Office, Phoenix
By Lawrence H. Blieden
Counsel for Appellant
MEMORANDUM DECISION
Judge Jennifer M. Perkins delivered the decision of the Court, in which Presiding Judge James P. Beene and Judge Michael J. Brown joined. PERKINS, Judge:
¶1 Michael Anthony Steel appeals his convictions and sentences for one count of attempted second-degree murder and two counts of aggravated assault. He raises three arguments: the trial court violated Arizona Rule of Criminal Procedure 8 and his right to a speedy trial; the trial court improperly instructed the jury on voluntary intoxication; and his two convictions and sentences for aggravated assault violated his right against double jeopardy. For the following reasons, we vacate one aggravated assault conviction and sentence but affirm his other convictions and sentences.
FACTUAL AND PROCEDURAL HISTORY
¶2 We review the facts in the light most favorable to sustaining the verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013). Steel and the victim, M.B., lived together in Phoenix at the time of the acts that form the basis of Steel's convictions. During an argument, Steel shot M.B. once with a handgun. M.B. suffered a single gunshot wound and survived the shooting.
¶3 The trial court arraigned Steel on September 29, 2015. Because Steel was in custody, the court set the last day for trial for February 26, 2016. On January 26, 2016, two weeks before trial, the State moved to continue trial to complete a DNA analysis request. The State had requested the DNA analysis ten days after the shooting, but a backlog of requests prevented the Phoenix Crime Lab from timely completing the request. Over Steel's objection, the court granted the motion to continue under Rule 15.6, shifting the last day to May 6, 2016. Prior to trial, Steel moved to continue the trial date due to a scheduling conflict. The court granted Steel's motion, shifting the last day to June 9, 2016. Steel's trial was completed on June 8, 2016.
¶4 During trial, M.B. testified that she and Steel had used illicit drugs together around one day per week. Based on this evidence, the court granted the State's request for a voluntary intoxication jury instruction. The instruction stated, "Temporary intoxication resulting from the voluntary ingestion, consumption of alcohol or an illegal substance is not a defense for any criminal act or requisite state of mind."
¶5 The jury found Steel guilty of attempted second-degree murder and two counts of aggravated assault. The aggravated assault charges were based on assault involving "serious physical injury" and "a deadly weapon or dangerous instrument" under Arizona Revised Statutes ("A.R.S.") section 13-1204(A)(1) and (2) (2018). The trial court imposed sentences of twenty-five years for the attempted second-degree murder and eighteen years for each aggravated assault, all three to run concurrently. Steel timely appealed these convictions and sentences.
DISCUSSION
A. The trial court violated neither Rule 8 nor Steel's speedy trial right.
¶6 Steel argues that the trial court improperly granted the State's requested continuance of trial, and thereby violated Rule 8 and Steel's right to a speedy trial. We review the trial court's grant of a continuance for an abuse of discretion and will not reverse such a ruling on appeal in the absence of a clear abuse and resulting prejudice. State v. Vasko, 193 Ariz. 142, 144, ¶ 8 (App. 1998).
¶7 If the defendant is in custody, Rule 8 requires trial to proceed within 150 days of arraignment. Ariz. R. Crim. P. 8.2(a)(1). However, delays caused by the defendant or time extensions to obtain disclosure under Rule 15.6 are specifically excluded from the 150 days. Ariz. R. Crim. P. 8.4(a)(1), (3). Under Rule 15.6, a court must grant reasonable time to a party to complete scientific testing "unless the court finds that the need for the extension resulted from dilatory conduct or neglect, or that the request is being made for an improper reason." Ariz. R. Crim. P. 15.6(e)(2).
¶8 Here, the trial court did not violate Rule 8. The trial court initially set the last day for trial for February 26, 2016, which was within 150 days of Steel's arraignment. This date was pushed back once due to the State's need for the DNA analysis, which is a proper extension for disclosure under Rule 15.6. Nothing in the record indicates that this delay was sought as a result of dilatory tactics, neglect, or impropriety. The last day was pushed back again because Steel requested that the trial be continued. Excluding the time granted for the extension for DNA testing and Steel's motion to continue, the trial proceeded within 150 days of arraignment. Because the court complied with Rule 8, it did not violate Steel's speedy trial right. See State v. Spreitz, 190 Ariz. 129, 136 (1997) ("Rule 8 grants even stricter speedy trial rights than those provided by the United States Constitution." (internal quotation marks omitted)).
B. The trial court did not commit reversible error by granting the voluntary intoxication jury instruction.
¶9 We review a trial court's decision to grant a jury instruction for abuse of discretion. State ex rel. Thomas v. Granville, 211 Ariz. 468, 471, ¶ 8 (2005). We apply a harmless error analysis when the trial court gives incorrect jury instructions, State v. Peraza, 239 Ariz. 140, 146, ¶ 22 (App. 2016), review denied (July 13, 2016). An error is harmless if it did not contribute to or affect the verdict. State v. Valverde, 220 Ariz. 582, 585, ¶ 11 (2009).
¶10 Steel argues that there was no evidence presented to support the jury instruction because M.B. did not testify that Steel used drugs on the day of the offense. See State v. Smith, 113 Ariz. 298, 300 (1976) ("[I]t is improper to give an instruction which is not clearly supported by the evidence."). Therefore, Steel argues, instructing the jury that voluntary intoxication is not a defense, "necessarily implied that any defense presented was inadequate to support a finding of not guilty."
¶11 We do not need to determine whether the giving of this instruction was error because any error was harmless—the instruction did not affect the verdict. Besides his bald assertion, Steel does not explain how the instruction discredited any other defense he may have had. The jurors were advised that some instructions may no longer apply after they determine the facts, and jurors are presumed to follow instructions. Peraza, 239 Ariz. at 146, ¶ 23. For these reasons, we disagree that the instruction discredited Steel's other defenses.
C. Steel's convictions for aggravated assault violated double jeopardy.
¶12 Because Steel did not raise a double jeopardy argument at the trial court level, we review for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). A violation of double jeopardy is fundamental error. State v. Price, 218 Ariz. 311, 313, ¶ 4 (App. 2008). Steel argues his two convictions for aggravated assault violate the double jeopardy protections of the United States Constitution and Article 2, Section 10 of the Arizona Constitution. The State agrees and urges us to vacate Count Three.
¶13 Regardless of concurrent sentences, double jeopardy is violated when a defendant is convicted multiple times for the same offense. State v. Brown, 217 Ariz. 617, 621, ¶ 13 (App. 2008). Aggravated assault as defined in A.R.S. § 13-1204(A) is a single offense that can be committed in various ways. See State v. Pena, 209 Ariz. 503, 506, ¶ 12 (App. 2005) ("The jury need not . . . have unanimously agreed on the manner in which Defendant committed aggravated assault as long as each juror found that Defendant committed aggravated assault based on either serious physical injury or use of a dangerous instrument."). Steel performed a single act that resulted in a single wound to a single victim. Thus, only one act of aggravated assault occurred, and Steel's second conviction for aggravated assault was a violation double jeopardy.
¶14 Generally, when double jeopardy has been violated, we vacate the "lesser" of the two convictions. State v. Braidick, 231 Ariz. 357, 360, ¶ 13 (App. 2013) In this case, both convictions carry the same concurrent sentence, and neither can be termed "lesser." In this situation, we choose to vacate the second of the convictions, which is Count Three, aggravated assault involving use of a deadly weapon or dangerous instrument. Cf. State v. Powers, 200 Ariz. 123, 127, ¶ 16 (App. 2001) (vacating the second conviction that violates double jeopardy), approved, 200 Ariz. 363 (2001); Braidick, 231 Ariz. at 361, ¶ 13 (same).
CONCLUSION
¶15 We vacate Steel's aggravated assault conviction in Count Three involving serious physical injury but affirm his other convictions and sentences.