Opinion
No. 1 CA-CR 13-0839
12-23-2014
STATE OF ARIZONA, Appellee, v. PHILIP JOHN MARTIN, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Linley Wilson Counsel for Appellee Mohave County Legal Advocate, Kingman By Jill L. Evans 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NOTICE: NOT FOR PUBLICATION.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 Mohave County
No. S8015CR201201326
The Honorable Derek C. Carlisle, Judge Pro Tem
REVERSED AND REMANDED
COUNSEL Arizona Attorney General's Office, Phoenix
By Linley Wilson
Counsel for Appellee
Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Patricia K. Norris delivered the decision of the Court, in which Judge Lawrence F. Winthrop and Judge John C. Gemmill joined. NORRIS, Judge:
¶1 Philip John Martin appeals from his conviction for second degree murder, arguing the superior court should have instructed the jury on the crime-prevention defense under Arizona Revised Statutes ("A.R.S.") section 13-411 (Supp. 2014), and should not have admitted the victim's dying declarations over his Confrontation Clause objection. We agree with Martin's first argument and reverse and remand for a new trial for that reason. Because the evidentiary issue will recur upon retrial, we address it as well and conclude the court properly admitted the statements because they were non-testimonial.
Although the Arizona Legislature amended certain statutes cited in this decision after the date of Martin's offense, the revisions are immaterial to the resolution of this appeal. Thus, we cite to the current version of these statutes.
FACTS AND PROCEDURAL BACKGROUND
We view the facts in the light most favorable to sustaining the jury's verdict and resolve all reasonable inferences against Martin. State v. Vandever, 211 Ariz. 206, 207 n.2, 119 P.3d 473, 474 n.2 (App. 2005).
¶2 Martin and the victim were neighbors and used the same rough dirt access road to reach their homes. Martin routinely placed railroad ties and other debris in the road in front of his driveway to counteract ruts that would form when motorists drove their vehicles on the road after a rainstorm. The victim removed a railroad tie from the road in front of Martin's driveway while driving home in his Jeep. The victim told his friend Brian he was "gonna go ask why he keeps doing that." As the victim started walking down Martin's driveway, Brian heard and saw "the muzzle blast of the gun out the front window" of Martin's house and saw the victim "hit the ground." The victim died of a shotgun wound to his abdomen.
¶3 A grand jury indicted Martin for first degree, premeditated, murder. Martin admitted shooting the victim, but testified at trial that he did so because the victim ignored his demands that he get off his property and because he believed the victim was armed and was coming towards his home to harm him. The superior court instructed the jury on the use of physical force and deadly physical force in self-defense pursuant to A.R.S. §§ 13-404 (2010), 13-405 (Supp. 2014), and in defense of premises pursuant to 13-407 (2010). It rejected Martin's request, however, that it also instruct the jury on the use of force and deadly force in crime-prevention under A.R.S. § 13-411 because it found the evidence insufficient to warrant that instruction. The jury found Martin guilty of the lesser included offense of second degree murder.
DISCUSSION
I. Crime Prevention Instruction
¶4 On appeal, Martin argues the trial evidence supported his requested crime-prevention instruction and, thus, the court should have instructed the jury on this defense. We agree with Martin. See State v. Anderson, 210 Ariz. 327, 343, ¶ 60, 111 P.3d 369, 385 (2005) (appellate court reviews trial court's refusal to give jury instruction for abuse of discretion; defendant is "entitled to instruction on any theory reasonably supported by the evidence").
¶5 Section 13-411 provides that a person "is justified in threatening or using both physical force and deadly physical force against another if and to the extent the person reasonably believes that physical force or deadly physical force is immediately necessary" to prevent certain specified crimes, including aggravated assault as defined in A.R.S. § 13-1204(A)(1), (2) (Supp. 2014) (causing "serious physical injury to another" or using a "deadly weapon or dangerous instrument"). Here, the trial evidence supported the crime-prevention instruction based on aggravated assault.
¶6 Martin testified he feared for his safety because, as the victim walked towards his house, he saw a bulge on the victim's side, under his shirt, and feared the victim might have a gun. Martin explained he believed he needed to act because the victim continued to walk towards his house despite his repeated warnings to the victim that he was armed and his demands that the victim leave his property. Martin further testified the victim looked "determined, like nothing was going to stop him" as he advanced toward the house, and that is when he "got scared" and thought "what's going to happen when he gets to my door" and pulled the trigger. This testimony, coupled with evidence that at the time of the shooting the victim had a .165 blood alcohol content and "always" kept a pistol in his Jeep, was sufficient to provide "the slightest evidence" for the crime-prevention instruction. See State v. Hussain, 189 Ariz. 336, 338, 942 P.2d 1168, 1170 (App. 1997) (defendant's version of events provided "slightest evidence" in support of crime-prevention instruction).
¶7 The State argues, however, that Martin's belief he was acting to prevent an aggravated assault was not reasonable in light of his testimony that he did not see anything in the victim's hands or see the victim reach for a weapon as he walked up the driveway. Nonetheless, whether Martin's belief was reasonable under the circumstances was a question for the jury to resolve in determining if his conduct was justified. And, it was also for the jury to resolve contradictory statements in Martin's testimony. See, e.g., State v. Mercer, 13 Ariz. App. 1, 2, 473 P.2d 803, 804 (1970) ("evidence is no less substantial simply because the testimony is conflicting or reasonable persons may draw different conclusions therefrom").
¶8 The State also argues the superior court's decision not to instruct on crime-prevention, if error, was harmless. Error "is harmless if we can say, beyond a reasonable doubt, that the error did not contribute to or affect the verdict." State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993). "The inquiry . . . is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error." Id. (quoting Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S. Ct. 2078, 2081, 124 L. Ed. 2d 182 (1993)). "We must be confident beyond a reasonable doubt that the error had no influence on the jury's judgment." Id.
¶9 Unlike the self-defense and defense of premises statutes, A.R.S. § 13-411(C) establishes a presumption that a person is acting reasonably if he acted to "prevent what the person reasonably believes is the imminent or actual commission" of the specified crimes, including aggravated assault. No such presumption is contained in A.R.S. §§ 13-404, -405, or -407. Nevertheless, the State further argues the presumption has essentially been rendered redundant by statutory changes that now place the burden on the State to prove beyond a reasonable doubt that a defendant did not act with justification in all instances in which he or she raises a justification defense. See A.R.S. § 13-205 (2010). The Legislature, however, also specifically directed that the changes would not affect the presumption contained in A.R.S. § 13-411. See A.R.S. § 13-205(B) ("This section does not affect the presumption contained in § 13-411, subsection C.") (emphasis added). Furthermore, unlike the self-defense statute, under A.R.S. § 13-411, "the only limitation upon the use of deadly force . . . is the reasonableness of the response" whereas the self-defense statute requires "an immediate threat to personal safety before deadly force may be used." State v. Korzep, 165 Ariz. 490, 492, 799 P.2d 831, 833 (1990). Thus, A.R.S. § 13-411 permits the use of deadly physical force "if and to the extent" a person reasonably believes it is necessary to prevent the commission of one of the listed offenses rather than only in response to another's use or attempted use of unlawful deadly force. Hussain, 189 Ariz. at 339, 942 P.2d at 1171.
¶10 On this record, we cannot say beyond a reasonable doubt that the protections offered by A.R.S. § 13-411(C) would not have caused a jury properly instructed about the crime-prevention defense to find Martin justified in shooting the victim to prevent an aggravated assault. Bible, 175 Ariz. at 588, 858 P.2d at 1191. Accordingly, we reverse Martin's conviction and remand for a new trial. II. Victim's Statements to Deputies
¶11 Martin next argues the superior court should not have admitted the statements made by the victim to police officers over his Confrontation Clause objection. The superior court found the statements were dying declarations under Arizona Rule of Evidence 804(b)(2) and admissible under the Confrontation Clause because "the emergency [in this case] was still ongoing." We review de novo a superior court's Confrontation Clause decision, State v. Tucker, 215 Ariz. 298, 315, ¶ 61, 160 P.3d 177, 194 (2007), and, as we explain, the superior court did not violate the Confrontation Clause in admitting the victim's dying declarations.
¶12 The Confrontation Clause provides, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. In Crawford v. Washington, 541 U.S. 36, 54, 124 S. Ct. 1354, 1365, 158 L. Ed. 2d 177 (2004), the Supreme Court held a testimonial statement by a witness who does not appear at trial must be excluded under the Confrontation Clause unless the witness is unavailable and the defendant "had a prior opportunity for cross-examination." The Court did not define "testimonial," but enumerated a "core class of 'testimonial' statements" as including "affidavits, custodial examinations, . . . depositions, prior testimony, . . . confessions, . . . [and] [s]tatements taken by police officers in the course of interrogations" and any other "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Id. at 51-52, 124 S. Ct. at 1364.
¶13 In Davis v. Washington, 547 U.S. 813, 817, 126 S. Ct. 2266, 2270, 165 L. Ed. 2d 224 (2006), the Supreme Court considered whether statements made to a 911 operator were testimonial under the Confrontation Clause. The Court held statements are "nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to . . . meet an ongoing emergency." Id. at 822, 126 S. Ct. at 2273. Conversely, statements are "testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." Id. at 822, 126 S. Ct. at 2273-74. The Supreme Court thus focused the testimonial inquiry under the Confrontation Clause to the "primary purpose" of the interrogation. Id.; State v. Alvarez, 213 Ariz. 467, 471, ¶ 15, 143 P.3d 668, 672 (App. 2006).
¶14 More recently, in Michigan v. Bryant, 562 U.S. 344, —, 131 S. Ct. 1143, 1156, 179 L. Ed. 2d 93 (2011), the Supreme Court clarified the "primary purpose" analysis. The Court held that determination of the "primary purpose" of the exchange required an objective analysis of its circumstances:
An objective analysis of the circumstances of an encounter and the statements and actions of the parties to it provides the most accurate assessment of the 'primary purpose of the interrogation.' The circumstances in which an encounter occurs — e.g., at or near the scene of the crime versus at a police station, during an ongoing emergency or afterwards — are clearly matters of objective fact. The statements and actions of the parties must also be objectively evaluated. That is, the relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals' statements and actions and the circumstances in which the encounter occurred.Id.
¶15 The Court further explained that "the existence of an ongoing emergency is relevant to determining the primary purpose of the interrogation because an emergency focuses the participants on . . . ending a threatening situation" rather than on "proving past events potentially relevant to later criminal prosecution." Id. at —, 131 S. Ct. at 1157.
¶16 Applying these principles here, the victim's dying declarations were not testimonial; the victim made them during an ongoing emergency and the primary purpose of his exchange with police officers was to enable them to react and respond to this emergency.
¶17 The trial evidence established that the police officers arrived at the crime scene shortly after the shooting occurred with the victim lying on the ground in a pool of blood coming from "numerous gun shot holes to his abdomen." The officers saw that the victim was in a critical condition, bleeding profusely, gasping for air and "coming in and out of consciousness." In an effort to render medical aid to the victim, one officer "started applying pressure and talking to [the victim], trying to keep him alert." Although it is not clear which officer is speaking, a voice can be heard on the recording of the exchange played to the jury urging the victim to "stay with me buddy."
¶18 It is in this context that the police officers asked the victim if he knew who shot him (the victim responded, "Phil," and identified Phil as a neighbor), why he had been shot (the victim responded, because he was "walking up [Phil's] driveway"), and whether Phil had said anything else to him (the victim responded, "[s]aid don't walk up my driveway anymore, after I was on the ground already"). Although Martin had already told one of the officers he had shot the victim and one of the officers had placed him in a patrol car when the officers began to speak to the victim, the officers had not secured the crime scene. Viewed objectively, these circumstances reflect the primary purpose of the exchange between the officers and the victim was to enable the officers to react and respond to an ongoing emergency which included trying to keep the victim alive. Accordingly, the victim's statements to the officers were non-testimonial, and the court did not violate Martin's Confrontation Clause rights in admitting them into evidence.
CONCLUSION
¶9 For the foregoing reasons, we reverse Martin's conviction and remand for further proceedings consistent with this decision.