Opinion
No. 1 CA-CR 11-0030
09-27-2011
STATE OF ARIZONA, Appellee, v. ANTHONY JOHN GAFFKE, Appellant.
Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Michael T. O'Toole, Assistant Attorney General Attorneys for Appellee Phoenix Jill L. Evans, Mohave County Appellate Defender By Diane S. McCoy, Deputy Appellate Defender Attorneys for Appellant Kingman
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(Not for Publication -Rule 111, Rules of the Arizona Supreme Court)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 Mohave County
Cause No. CR2010-00172
The Honorable Steven F. Conn, Judge
AFFIRMED
Thomas C. Horne, Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Michael T. O'Toole, Assistant Attorney General
Attorneys for Appellee
Phoenix
Jill L. Evans, Mohave County Appellate Defender
By Diane S. McCoy, Deputy Appellate Defender Attorneys for Appellant
Kingman
TIMMER, Presiding Judge
¶1 Anthony John Gaffke appeals his conviction and sentence on one count of destruction of, or injury to, a public jail, a class five felony, on the grounds the trial court reversibly erred by (1) instructing that diminished capacity is not a defense, (2) refusing to instruct the jury on voluntary act, and (3) informing the jury prior to deliberations the judge would be unavailable to take a verdict during the lunch hour. For the reasons that follow, we reject these contentions and affirm.
BACKGROUND
¶2 The evidence at trial, viewed in the light most favorable to upholding the jury's verdict, was as follows. Police arrested Gaffke on February 1, 2010, and booked him into the Mohave County Jail. Over the next couple days, Gaffke engaged in disruptive behavior, banging on a metal bench, filling his property box with water, swearing at the detention officers, and refusing orders. At about 1 a.m. on February 4, 2010, an alarm sounded, and detention officers discovered that the sprinkler head had been pulled from the ceiling of Gaffke's cell. The sprinkler head was eight feet off the floor but could be reached by someone standing on the toilet or sink. Gaffke, who was the only person in the cell at the time, told the detention officer that "the sprinkler head just popped off." The detention officer testified that Gaffke seemed coherent and was "very calm." The detention officers testified that the sprinkler head could not have simply "popped off," but instead would have required a fair amount of effort to remove.
State v. Girdler, 138 Ariz. 482, 488, 675 P.2d 1301, 1307 (1983).
¶3 Gaffke's ex-wife testified that Gaffke had stopped taking steroid medication for pain two days before he was arrested, and he had been behaving strangely. Gaffke testified that when he was in jail, he did not have the medications he ordinarily took for diabetes, a heart ailment, arthritis, a broken back, and sleep disorders, or the sleep-apnea machine he required to sleep. He testified that without the machine, "you just virtually don't sleep," and he did not recall getting any sleep while he was in jail. He testified that he did not break the sprinkler head. On cross-examination, he testified, "I remember being in the cell, and I thought somebody fire hosed me, and later was told it was a broken sprinkler. Never saw any sprinklers; no sir."
¶4 The jury convicted Gaffke of the charged offense. The court suspended sentence and imposed a one and one-half year term of supervised probation. Gaffke timely appealed.
DISCUSSION
A. Instruction on diminished capacity
¶5 Gaffke argues the court deprived him of due process by instructing during Gaffke's closing argument that diminished capacity was not a defense under Arizona law. Gaffke argues the court's instruction was confusing and effectively incorrectly instructed the jury to ignore Gaffke's argument that the behaviors he exhibited while in the jail demonstrated he did not intend to destroy the sprinkler at issue.
¶6 The background on this issue is as follows. After the close of the State's case and before Gaffke testified, the State moved to preclude him from offering evidence to support an insanity defense, which Gaffke had failed to disclose, or a diminished capacity defense, which is not recognized under Arizona law. Gaffke responded he was not defending on the basis of diminished capacity or insanity but rather on the basis that he lacked intent. Gaffke said at the time he did not "necessarily" object to a diminished capacity instruction, although he thought it would confuse the jury. The court denied the State's motion to preclude evidence to support an insanity or diminished capacity defense, reasoning that Gaffke's defense appeared to be that he did not intentionally destroy the sprinkler head, not that he could not form that intent because of an underlying mental disease or defect. The court, however, told counsel its ruling was subject to change depending on the evidence.
¶7 The court later denied the State's request for an instruction that "diminished capacity or responsibility" is not a valid defense under Arizona law. The court "reserve[d] the right to sustain an objection and tell the jury that diminished capacity is not a defense, if I think that that's what's being argued." Gaffke did not object.
¶8 In closing, after arguing at length that his irrational behavior demonstrated he was not acting intentionally, Gaffke argued he was sleep-deprived, which would tend to affect his judgment, "[a]nd the lack of medications, again, that just goes to show, as a matter of common sense, that that could be [affecting] your decision-making ability." The State objected that this was a diminished capacity argument. The court overruled the objection, noting, "I don't think it is, quite." Gaffke accordingly proceeded:
And we see from the evidence presented in this case that Anthony's decision-making was in fact impaired. It's all those behaviors that you've heard testimony about up until and including the sprinkler breaking -This time, on the State's objection, the court instructed the jury:
Ladies and gentlemen, I need to tell you that it is not a defense to the charges against the defendant that he had a diminished capacity. However, the state has to prove beyond a reasonable doubt that he acted intentionally. So whether he had some sort of diminished capacity is not something that you can consider. You do have to be convinced beyond a reasonable doubt that he acted intentionally before you can find him guilty.Gaffke did not object. In its rebuttal closing, again without objection, the State explained that "diminished capacity" was when a defendant "would have trouble forming a mental state." The State added, "[I]n Arizona you can't say, oh, at that time my mind was haywire, I wasn't thinking right, I was delusional, I was delirious, so I'm not guilty because I couldn't intend to do something. You can't argue that in Arizona. And that's what basically diminished capacity means." The State added that "[i]f you lack the mental ability to form something, you go with an insanity plea. If you don't, you can't say, well, he was a little off, so that's why he's not guilty. You're not allowed to do that in Arizona."
¶9 We review a trial court's decision to give an instruction for an abuse of discretion; we review whether the instruction correctly states the law de novo. State v. Abdi, 226 Ariz. 361, 363, ¶ 5, 248 P.3d 209, 211 (App. 2011). We review the adequacy of jury instructions in their entirety to determine if they accurately reflect the law. State v. Hoskins, 199 Ariz. 127, 145, ¶ 75, 14 P.3d 997, 1015 (2000). In evaluating the adequacy of instructions, we may take into consideration the lawyers' arguments to the jury. State v. Bruggeman, 161 Ariz. 508, 510, 779 P.2d 823, 825 (App. 1989). We will not reverse "unless we can reasonably find that the instructions, when taken as a whole, would mislead the jurors." State v. Sucharew, 205 Ariz. 16, 26, ¶ 33, 66 P.3d 59, 69 (App. 2003) (citation omitted).
¶10 Because Gaffke failed to object to the court's instruction, we review for fundamental error only. State v. Hargrave, 225 Ariz. 1, 14, ¶ 47, 234 P.3d 569, 582 (2010) (citing State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005)). Under this standard of review, Gaffke bears the burden of establishing that the trial court erred, the error was fundamental, and the error caused him prejudice. Henderson, 210 Ariz. at 568, ¶ 22, 115 P.3d at 608.
¶11 We do not discern any error, much less fundamental error. Gaffke concedes Arizona does not recognize a defense based on "diminished capacity," that is, that defendant suffers from a mental disease or defect that rendered him incapable of forming the requisite mens rea. State v. Mott, 187 Ariz. 536, 540-45, 931 P.2d 1046, 1050-55 (1997). He argues he was simply trying to show that the "irrational" behaviors he exhibited at the jail demonstrated he had not actually formed the requisite intent to destroy jail property, and the court's incorrect instruction improperly undermined his ability to defend on this basis.
¶12 Evidence of a defendant's behavior around the time of the incident, so-called "observation evidence," is admissible to rebut the mens rea element of the offense. See Mott, 187 Ariz. at 544, 931 P.2d at 1054 (noting its holding did not preclude defendants from offering testimony about their behavioral tendencies); Clark v. Arizona, 548 U.S. 735, 760, 765, n.34 (2006) (noting that in Mott, the court did not impose any restriction on "observation evidence," and "[n]othing that we hold here is authority for restricting a factfinder's consideration of observation evidence indicating state of mind at the time of a criminal offense"); State v. Christensen, 129 Ariz. 32, 34-36, 628 P.2d 580, 582-84 (1981) (holding the trial court erred in a first-degree murder trial in excluding testimony that defendant had a tendency to act impulsively).
¶13 The argument that prompted the court to instruct the jury that "diminished capacity" was not a valid defense in Arizona, however, was that the lack of medications could have affected his "decision-making ability," and Gaffke's behavior at the time showed his "decision-making was in fact impaired." The characterization of Gaffke's decision-making as "impaired" suggested Gaffke was incapable of forming the requisite mens rea, which is an impermissible argument that he had diminished capacity. See Mott, 187 Ariz. at 544, 931 P.2d at 1054. Consequently, the court did not err by instructing the jury that Arizona law does not recognize a "diminished capacity" defense.
¶14 We also reject Gaffke's argument that the court effectively incorrectly instructed the jury to ignore his argument that his behaviors in the jail demonstrated a lack of intent to destroy the sprinkler head at issue. The court expressly instructed the jury that although "diminished capacity" was not a valid defense, the State was required to prove Gaffke intentionally destroyed the sprinkler head. The court repeated both portions of this instruction twice, ending with the sentence: "You do have to be convinced beyond a reasonable doubt that he acted intentionally before you can find him guilty." Gaffke, in short, was free to argue, and did argue, that the behaviors he exhibited showed he did not act intentionally. Moreover, the State alleviated any confusion that might have been caused by the court's failure to define "diminished capacity" by correctly explaining that "diminished capacity" was when a defendant, because he was delirious or delusional, "would have trouble forming a mental state," or "couldn't intend to do something." On this record, we decline to decide that the court's instruction misled the jury into ignoring Gaffke's argument that the irrational behaviors he exhibited around the time of the charged offense demonstrated he lacked the necessary intent to destroy the sprinkler head.
¶15 We further find no merit in Gaffke's argument that the State's remarks in rebuttal closing erroneously "implied that the element of intent could only be contested in guilty except insane cases." The State correctly explained that "diminished capacity" was when a defendant, because he was delirious or delusional, was incapable of forming the requisite mens rea. The State's subsequent remark that "[i]f you lack the mental ability to form something, you go with an insanity plea," although it may have been stated inartfully, appeared to be an attempt to convey the same concept. In context, the State was simply explaining that if a defendant lacked the capability of forming the requisite intent due to mental disease or defect, he could not plead diminished capacity under Arizona law but could only plead insanity. We conclude that the State's argument was appropriate rebuttal to the argument Gaffke made that his lack of sleep and medications impaired his judgment and, when considered in light of the court's instructions and both parties' arguments, would not have misled the jury.
B. Refusal to instruct on voluntary act
¶16 Gaffke next argues the trial court denied him due process when it refused to give a "voluntary act" instruction, because the evidence showed that he acted "unconsciously" when he destroyed the sprinkler head. The trial judge declined to give the requested instruction, explaining that the offense required proof of intent, and he never gives the voluntary act instruction because it "does not add anything, and it does not enable the defense to make any argument that they can't already make." Gaffke asked the court to reconsider on the basis that the instruction he requested addressed the actus rea and not the mens rea. He noted, however, that he understood "the court's reasoning that intentionally - the intentional instruction allows me to more or less argue that fact."
Gaffke had requested an instruction that "[e]very crime requires a voluntary act or omission. If there is no voluntary act or omission, then there is no crime. . . . 'Voluntary act' means a bodily movement performed consciously and as a result of effort and determination." The court noted that the requested instruction was "not exactly how the statute phrases it."
Gaffke did not ask the court to give the voluntary act instruction on the ground the evidence showed he was unconscious at the time; this is an argument he expressly makes for the first time on appeal. Implicit in his request for the instruction, however, was an argument that his conduct was involuntary, that is, performed when he was unconscious.
¶17 "A defendant is entitled to an instruction on any theory reasonably supported by evidence." State v. Anderson, 210 Ariz. 327, 343, ¶ 60, 111 P.3d 369, 385 (2005) (citation and internal quotation marks omitted). We review a trial court's refusal to give an instruction for abuse of discretion. Anderson, 210 Ariz. at 343, ¶ 60, 111 P.3d at 385. "[W]e are obliged to uphold the trial court's ruling if legally correct for any reason . . . ." State v. Canez, 202 Ariz. 133, 151, ¶ 51, 42 P.3d 564, 582 (2002).
¶18 The trial court's refusal to give the voluntary act instruction was not error because the instruction was not reasonably supported by the evidence. Arizona Revised Statutes ("A.R.S.") section 13-201 (2010) provides that "[t]he minimum requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform a duty imposed by law which the person is physically capable of performing." The legislature has defined "voluntary act" as "a bodily movement performed consciously and as a result of effort and determination." A.R.S. § 13-105(41) (2010).
We cite the current version of the applicable statute because no revisions material to this decision have since occurred.
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¶19 An act is considered involuntary if is "a knee-jerk reflex driven by the autonomic nervous system," such as "a bodily movement while unconscious, sleep, under hypnosis, or during an epileptic" seizure. State v. Lara, 183 Ariz. 233, 234-35, 902 P.2d 1337, 1338-39 (1995) (holding that expert testimony that defendant suffered from a brain disorder that caused him to fly into rage "as if by reflex" was insufficient to support a voluntary act instruction); see also State v. Moody, 208 Ariz. 424, 468, ¶ 200, 94 P.3d 1119, 1163 (2004) (holding that expert testimony that defendant suffered from a brain disorder and impairments that made him feel not in control of his actions was insufficient to support a voluntary act instruction).
¶20 Gaffke argues the jury could have inferred he acted unconsciously from his testimony at trial that he had no recollection of sleeping during the days he spent in jail, and that he had no recollection of breaking the sprinkler head. We disagree. Gaffke's testimony fell short of indicating he acted unconsciously, that is, that his removal of the sprinkler head was "a knee-jerk reflex driven by the autonomic nervous system." See Lara, 183 Ariz. at 235, 902 P.2d at 1339. The evidence demonstrated the sprinkler head could have been removed only by effort and determination, specifically by a person standing on the toilet or sink and working it off. On this record, Gaffke was not entitled to a voluntary act instruction. See id. at 234, 902 P.2d at 1338. We accordingly discern no reversible error in the court's refusal to give the voluntary act instruction.
C. Judge's notice to jury of lunch plans
¶21 Finally, Gaffke argues that the judge impermissibly coerced the jury into reaching a verdict when he told them that he would be unable to take a verdict during the lunch hour because he had other plans. Gaffke argues the judge's remarks implied the jurors would have to go without lunch if they deliberated for more than thirty minutes.
¶22 Shortly before the jury retired at 11:20 a.m. to deliberate, the judge told the jury, without objection:
One thing, and I was going to mention this, I have a slight scheduling issue that I just need to make you aware of. I actually have a speaking engagement at lunch today, so I am going to have to be out of here by no later than ten until 12:00, and I may not [be] back until 1:15. If you are deliberating and you reach a decision during that time frame, you may have to just hang out for a while.The jury returned with a verdict at 11:50 a.m., the time that the judge had told jurors he would be leaving for his speaking engagement.
And I want to make sure you understand, I am not in any way suggesting that you rush to a judgment in this case; that you do not give this case whatever time it serves [sic]. I just need to make sure that you understand I won't be available to take the verdict for the lunch hour, and if you reach a decision during the lunch hour, you'll just have to hang out until I get back here.
¶23 "Jury coercion exists when the trial court's actions or remarks, viewed in the totality of the circumstances, displaced the independent judgment of the jurors, or when the trial judge encourages a deadlocked jury to reach a verdict." State v. Davolt, 207 Ariz. 191, 213, ¶ 94, 84 P.3d 456, 478 (2004) (citations and internal quotation marks omitted). Because Gaffke failed to object to the judge's remarks, we review for fundamental error only. See Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607; State v. McCutcheon, 162 Ariz. 54, 60, 781 P.2d 31, 37 (1989).
¶24 We are not persuaded the judge erred, much less fundamentally erred, by informing the jury he would be unable to take a verdict between 11:50 a.m. and 1:15 p.m. The judge took pains to advise the jury that, while he had plans that would prevent him from taking a verdict during the lunch hour, he was not in any way suggesting it rush to judgment. He specifically advised the jury to take whatever time to deliberate that the case deserved. This advice distinguishes the circumstances from those in State v. Lautzenheiser, 180 Ariz. 7, 881 P.2d 339 (1994), on which Gaffke relies. In Lautzenheiser, the judge sent the jury to deliberate on an aggravated DUI charge late in the afternoon on New Year's Eve, a backdrop our supreme court noted that the parties should have viewed with a "high degree of caution and suspicion." Id. at 9, 881 P.2d at 341. The judge in this case was cognizant that the jury might feel pressured by his remarks to reach a verdict before lunch, and he advised the jury to take as much time as it needed. We agree that "[a] trial judge should refrain from placing specific time pressure on a deliberating jury." People v. Keenan, 758 P.2d 1081, 1117 (Cal. 1988). In this case, just as in Keenan, however, we conclude the court dispelled any such inference by advising the jury he was in no way suggesting it rush to judgment. See Keenan, 758 P.2d at 1117. In short, we decide the judge did not coerce the jury verdict, and we therefore decline to reverse on this basis.
CONCLUSION
¶25 For the foregoing reasons, we affirm Gaffke's conviction and sentence.
Ann A. Scott Timmer
Presiding Judge
CONCURRING: Patrick Irvine, Judge Daniel A. Barker, Judge