Opinion
No. 1 CA-CR 12-0731
05-29-2014
STATE OF ARIZONA, Appellee, v. MICHAEL JOHN JAKSCHT, Appellant.
Arizona Attorney General's Office, Phoenix By Linley Wilson Counsel for Appellee Maricopa County Office of the Legal Advocate, Phoenix By Consuelo M. Ohanesian Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. CR2010-118085-001
The Honorable Joseph C. Welty, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Linley Wilson
Counsel for Appellee
Maricopa County Office of the Legal Advocate, Phoenix
By Consuelo M. Ohanesian
Counsel for Appellant
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Jon W. Thompson joined.
SWANN, Judge:
¶1 Michael John Jakscht appeals his convictions and sentences for manslaughter, aggravated assault and endangerment. Jakscht contends that the trial court erred by overruling his Batson challenge and by refusing to give a jury instruction on reckless driving as a lesser-included offense of manslaughter. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Multiple eyewitnesses saw Jakscht's roll-off truck veer sharply from a center highway lane into the left lane where ten motorcyclists were stopped two abreast at a red light. Jakscht proceeded to drive the truck straight through the motorcyclists without appearing to take any emergency evasive measures, slow down, or brake, ultimately killing four of them and seriously injuring five.
¶3 After the collision, Jakscht asked one witness what had happened, told another that he was reaching for paperwork and had not seen the motorcyclists, and told police that he had looked to his right for a sandwich shop and been unable to stop when he looked back and saw the motorcyclists in his lane. He also told police that the truck veered to the left whenever he applied the brakes that day. Police conducted sobriety tests at the scene and observed signs of impairment by a central nervous system stimulant, but were unable to conduct a complete drug recognition evaluation at the time because Jakscht declined to participate.
¶4 The results from a later blood draw were introduced into evidence at trial and demonstrated that approximately four-and-a-half hours after the accident, Jakscht's blood contained an amount of methamphetamine suggestive of recreational use within the previous 24 hours that would have negatively affected his driving ability. The state's toxicology expert opined that Jakscht was under the influence of methamphetamine at the time of the accident.
¶5 The state's accident reconstructionist testified that he saw no evidence of pre-impact emergency braking or steering, and concluded that the truck was traveling straight at a minimum of 37.5 miles an hour at impact. An examination of the truck revealed that three of the vehicle's six brakes were out of adjustment, which the state's mechanical expert testified would have occurred over a period of two to three weeks, and would have required an increasingly longer time or more pressure on the brakes for the truck to come to a stop. The state's expert, however, saw nothing to indicate that application of the brakes would pull the truck to the left. He also testified that it was virtually impossible to have a sudden catastrophic brake failure because of the design of the brakes in the truck, and saw no evidence of such a failure.
¶6 Jakscht's counsel argued in closing that Jakscht had not actually been impaired, and that even if he had been, the unexpected veer to the left coupled with the truck's deficient brakes constituted a superseding cause of the accident.
¶7 The jury found Jakscht guilty of four counts of manslaughter, five counts of aggravated assault and one count of endangerment (imminent death). The jury also returned guilty verdicts on three counts of endangerment (physical injury) as lesser-included offenses. The court sentenced Jakscht to a total of 26 years in prison. Jakscht timely appeals.
DISCUSSION
I. THE BATSON CHALLENGE
¶8 Jakscht contends that the court violated equal protection by overruling his Batson challenge to the prosecutor's peremptory strike of the only African-American on the jury panel. During jury selection, Jakscht challenged the prosecutor's strike on three grounds: the prospective juror was the sole African-American on the panel; the prospective juror had indicated that he could be fair and impartial; and the fact that the prospective juror was a driver for a parcel delivery company did not constitute a basis for concluding that he could not be fair and impartial. The prosecutor explained that he struck the prospective juror because he had friends who were involved in drug-trafficking and a cousin convicted of armed robbery whom the family felt had been treated unfairly, and because the state did not want a professional driver on the jury. The court overruled Jakscht's Batson challenge, finding that individually and collectively, the state's reasons provided a neutral, nondiscriminatory reason for striking the prospective juror.
¶9 The Equal Protection Clause of the Fourteenth Amendment prohibits peremptory strikes of prospective jurors based upon race. Batson v. Kentucky, 476 U.S. 79, 89 (1986). A Batson challenge proceeds in three steps:
First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination.
Snyder v. Louisiana, 552 U.S. 472, 476-77 (2008) (citations omitted) (internal quotation marks and brackets omitted). The defendant bears the burden of proving that the prosecutor's race-neutral reasons for striking the prospective juror are mere pretext for purposeful discrimination. State v. Roque, 213 Ariz. 193, 204, ¶ 15, 141 P.3d 368, 379 (2006). This court reviews a trial court's decision regarding the state's motives for a peremptory strike for clear error. State v. Murray, 184 Ariz. 9, 24, 906 P.2d 542, 557 (1995). "We give great deference to the trial court's ruling, based, as it is, largely upon an assessment of the prosecutor's credibility." State v. Cañez, 202 Ariz. 133, 147, ¶ 28, 42 P.3d 564, 578 (2002).
¶10 Jakscht now argues for the first time on appeal that "[t]he reasons the prosecutor advanced were pretextual because the same reasons would have been the bases to exclude thirteen of the fifteen seated jurors," specifically that they or associates had used illegal drugs, several had relatives in prison, and one was a mail carrier. Jakscht's comparative analysis fails by its own terms: none of the seated jurors he advances as having similar characteristics shared all of the characteristics that the prosecutor cited as reasons for striking the prospective juror. Moreover, we conclude that the state's desire to exclude professional drivers from the jury in this context was legally adequate and not pretextual.
II. DENIAL OF JURY INSTRUCTION ON RECKLESS DRIVING
¶11 Jakscht next contends that the court abused its discretion by denying his request for a jury instruction on reckless driving as a lesser-included offense of manslaughter. The court reasoned that the reference to a vehicle in the dangerousness allegation of the indictment did not sufficiently describe the crime of reckless driving so as to make it a lesser-included offense, and, even if it did, "any reasonable juror that made a determination that the defendant was guilty of reckless driving in the
context of this case, would have to also find that the reckless driving resulted in death." We review a trial court's decision to refuse a jury instruction on a lesser-included offense for abuse of discretion. See State v. Wall, 212 Ariz. 1, 3, ¶ 12, 126 P.3d 148, 150 (2006).
¶12 "To constitute a lesser-included offense, the offense must be composed solely of some but not all of the elements of the greater crime so that it is impossible to have committed the crime charged without having committed the lesser one." State v. Celaya, 135 Ariz. 248, 251, 660 P.2d 849, 852 (1983). In determining whether an offense is a lesser-included offense, we consider whether the alleged lesser offense "is, by its very nature, always a constituent part of the greater offense, or whether the charging document describes the lesser offense even though it does not always make up a constituent part of the greater offense." State v. Chabolla-Hinojosa, 192 Ariz. 360, 363, ¶ 12, 965 P.2d 94, 97 (App. 1998). A person commits manslaughter by "recklessly causing the death of another person." A.R.S. § 13-1103(A)(1). "A person who drives a vehicle in reckless disregard for the safety of persons or property is guilty of reckless driving." A.R.S. § 28-693. Reckless driving is not always a constituent part of manslaughter because it requires proof of an element -- driving a vehicle -- that is not required for manslaughter.
¶13 Here, it is not necessary to decide whether the mention of a vehicle in the dangerousness allegation of the indictment described the lesser offense of reckless driving and thus satisfied the charging document test. A trial judge is required to instruct and provide verdict forms only on "necessarily included offenses." See Ariz. R. Crim. P. 23.3 ("Forms of verdict shall be submitted to the jury for all offenses necessarily included in the offense charged . . . ."); Wall, 212 Ariz. at 3, ¶¶ 13-14, 126 P.3d at 150. "An offense is necessarily included 'when it is lesser included' and 'the facts of the case as presented at trial are such that a jury could reasonably find that only the elements of a lesser offense have been proved.'" State v. Gipson, 229 Ariz. 484, 486 n.2, ¶ 14, 277 P.3d 189, 191 n.2 (2012) (quoting Wall, 212 Ariz. at 3, ¶ 14, 126 P.3d at 150). "To determine whether there is sufficient evidence to require the giving of a lesser included offense instruction, the test is whether the jury could rationally fail to find the distinguishing element of the greater offense." State v. Jackson, 186 Ariz. 20, 27, 918 P.2d 1038, 1045 (1996) (citation omitted) (internal quotation marks omitted); see also State v. Bearup, 221 Ariz. 163, 168, ¶ 23, 211 P.3d 684, 689 (2009). Even if reckless driving were considered a lesser-included offense of manslaughter under the charging document test, the court was not required to instruct on reckless driving because it is not a "necessarily included offense" of manslaughter.
¶14 We defer to the trial court's assessment of the evidence. Wall, 212 Ariz. at 5, ¶ 23, 126 P.3d at 152. Our review of the record supports the court's assessment that no reasonable juror could find Jakscht guilty of reckless driving and at the same time find that his reckless conduct did not cause death (the distinguishing element of the greater offense of manslaughter). As discussed above, several witnesses testified that Jakscht was impaired by methamphetamine and did not slow down or attempt to brake before he drove the truck into a group of motorcyclists stopped at a red light, killing four of them. The parties stipulated that the four motorcyclists died as a result of injuries sustained in the collision with the truck Jakscht was driving. No reasonable juror could therefore find that Jakscht drove in reckless disregard of the safety of the motorcyclists but that his reckless driving did not cause the death of those motorcyclists. Reckless driving was not a necessarily included offense of manslaughter under these facts, and the court did not abuse its discretion by denying an instruction on reckless driving.
CONCLUSION
¶15 For the foregoing reasons, we affirm Jakscht's convictions and sentences.