Opinion
No. 1 CA-CR 16-0620
09-12-2017
STATE OF ARIZONA, Appellee, v. SEAN PATRICK RICHEY, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Joel M. Glynn 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2014-124936-001
The Honorable Annielaurie Van Wie, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Joel M. Glynn
Counsel for Appellant
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Diane M. Johnsen and Judge Kent E. Cattani joined.
SWANN, Judge:
¶1 Sean Patrick Richey challenges the superior court's decision to instruct the jury on flight in his trial for aggravated driving while under the influence of intoxicating liquor ("aggravated DUI"). We hold that the state presented sufficient evidence to support the flight instruction. We therefore affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Richey was tried for two counts of aggravated DUI. The state alleged that Richey, in violation of A.R.S. §§ 28-1381(A)(1)-(2) and -1383(A)(1), drove a vehicle without a valid driver's license while under the influence of intoxicating liquor, and had a blood alcohol concentration ("BAC") of 0.08 or more in his body within two hours of the driving.
¶3 At trial, the state presented evidence of the following facts. In the early afternoon of May 24, 2014, at an intersection in Phoenix, a blue pickup truck traveling east struck a vehicle traveling north. A witness observed that after the collision, "the truck continued on through the intersection . . . and didn't stop" or, if it did stop, did so only "very briefly." The witness used his own vehicle to follow the truck "at a reasonable speed." According to the witness, the truck drove at "a normal speed" before slowing to turn into the parking lot of a nearby store. But the witness also agreed with the prosecutor's characterization of the truck's speed as "excessive," and he stated that "[i]t was difficult . . . to . . . maintain a close enough distance to the [truck] to read the license plate." The witness stopped following the truck after it pulled into the store parking lot because he and his passenger had already relayed the truck's license plate number to police, and the witness wanted to avoid a confrontation.
¶4 Police put out an emergency radio call with the truck's description and license plate number. Within five to ten minutes, a patrol officer in a marked police vehicle saw the truck driving "right in front of [him]." Without activating his vehicle's lights or siren, the officer followed
the truck for approximately one mile. The truck traveled "within the speed limit," and the officer, who stayed less than a car-length behind the truck at all times, observed no evidence of poor or evasive driving.
¶5 When the truck pulled into the parking lot of an apartment complex, the officer followed and, once in the lot, activated his vehicle's overhead lights. The truck did not speed up, but neither did it stop—it continued through the lot at approximately five miles per hour. The officer gave a short siren blast. The truck continued to drive through the parking lot at the same speed. The officer then gave a second siren blast. Again, the truck continued at the same speed, making two left turns and pulling into a parking spot. At that point, approximately forty-five to fifty seconds had passed since the truck and the police vehicle first entered the parking lot.
¶6 The officer parked his vehicle diagonally behind the truck. Richey exited the truck from the driver's side and began walking south. He did not look at the officer or otherwise acknowledge his presence. The officer yelled: "Police, stop!" Richey continued walking. The officer then jogged up to Richey and grabbed his arm. Richey was "startled" and he "slightly pulled away," as if unaware of and surprised by the officer's presence. He did not, however, fight or resist.
¶7 The officer noticed that Richey had "a sweet odor of strong alcohol." The officer handcuffed Richey and led him to the curb. Richey stumbled and appeared off-balance, and the officer had to help him sit. Speaking slowly and with a slur, Richey admitted that he had consumed wine that morning and that he had hit a car. He produced an Arizona identification card, but no driver's license. When the officer asked Richey to enter the patrol vehicle, Richey complied but fell into the floorboard.
¶8 The officer asked Richey whether he lived at the apartment complex, and Richey stated a number. Richey then gave the officer permission to enter the truck to retrieve insurance information. The officer did not find any insurance information in the truck, but he did notice a strong odor of alcohol. He also noticed exterior damage, consistent with an impact, on the truck's front-passenger side. Police transported the witness who had followed the truck to the parking lot, and the witness immediately identified Richey as the driver responsible for the earlier collision.
¶9 Police transported Richey to a police command station. During the trip, Richey made incoherent statements. Once at the command station, he consented to a blood draw. The officer who drew the blood noticed that Richey had bloodshot eyes and a strong odor of alcohol on his
breath. Richey cooperated as the officer drew two vials of blood from his arm. Testing revealed that Richey's BAC was 0.24. Investigation revealed that the truck was registered in Richey's name but he did not hold an Arizona driver's license.
¶10 Over Richey's objection, the court granted the state's request to instruct the jury on flight. Consistent with Revised Arizona Jury Instruction ("RAJI") Standard Criminal 9 (4th ed. 2016), the court instructed the jury:
In determining whether the State has proved the defendant guilty beyond a reasonable doubt, you may consider any evidence of the defendant's running away, hiding, or concealing evidence, together with all the other evidence in the case. Running away, hiding, or concealing evidence after a crime has been committed does not by itself prove guilt.
¶11 The jury convicted Richey of both charges, and the court sentenced him to 4.5 years in prison. Richey timely appeals.
DISCUSSION
¶12 Richey's sole argument on appeal is that the superior court erred by instructing the jury on flight. We review the court's decision to give the instruction for abuse of discretion. State v. Parker, 231 Ariz. 391, 403, ¶ 44 (2013).
¶13 "Flight" means voluntarily withdrawing oneself in order to evade the course of justice by avoiding arrest, detention, or the institution or continuance of criminal proceedings. State v. Rodgers, 103 Ariz. 393, 395 (1968). A defendant's flight is considered an admission by conduct. State v. Edwards, 136 Ariz. 177, 184 (1983). A jury is properly instructed on flight if the state's evidence permits the inference that the defendant is conscious of his or her guilt of the crime charged. Parker, 231 Ariz. at 403, ¶ 44. Evidence that the defendant left the scene of the crime is, by itself, insufficient to support a flight instruction. State v. Clark, 126 Ariz. 428, 434 (1980). Rather, the instruction is warranted only if the defendant's manner of leaving the scene reveals consciousness of guilt—"there must be evidence of open flight as upon pursuit, or there must be evidence of concealment." Id.
¶14 But flight need not necessarily result from law-enforcement pursuit or circumstances justifying arrest or detention, and need not
manifest as complete concealment. Parker, 231 Ariz. at 404, ¶ 48; State v. Bullock, 26 Ariz. App. 149, 152 (1976). The propriety of a flight instruction depends on the facts of each case. State v. Speers, 209 Ariz. 125, 132, ¶ 27 (App. 2004). The existence of an alternative explanation for the defendant's actions does not preclude an otherwise appropriate flight instruction. Parker, 231 Ariz. at 404, ¶ 50.
¶15 We discern no abuse of discretion in the superior court's decision to give the flight instruction here. The state presented evidence that Richey promptly drove away from the scene of the collision, and did not stop driving when, shortly thereafter, a police vehicle directly behind him activated its lights and siren. The state also presented evidence that after Richey parked his vehicle, he walked away from the police vehicle even though it parked behind him and the officer yelled at him to stop. Richey did more than merely leave the scene. His behavior permitted the jury to reasonably infer that he was attempting to avoid contact with law enforcement and discovery of his intoxication and lack of driver's license. To be sure, the jury also could reasonably infer, as the prosecutor emphasized in closing argument, that Richey's failure to react to the police officer was the result of his alcohol-induced impairment. But the possibility of an alternative explanation for Richey's conduct did not make the flight instruction improper. Further, even if the flight instruction were unwarranted, the error in giving it would be harmless in view of the substantial evidence supporting the convictions and the state's primary theory of the case. See State v. Solis, 236 Ariz. 285, 287-88, ¶¶ 12-14 (App. 2014).
CONCLUSION
¶16 We affirm Richey's convictions and sentences for the reasons set forth above.