Opinion
No. 1 CA-CR 12-0644
01-09-2014
STATE OF ARIZONA, Appellee v. MARLON C. McCOWAN, Appellant.
Arizona Attorney General, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Legal Advocate, Phoenix By Consuelo M. Ohanesian Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 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. CR2011-005346-001
The Honorable M. Scott McCoy, Judge
AFFIRMED
COUNSEL
Arizona Attorney General, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Legal Advocate, Phoenix
By Consuelo M. Ohanesian
Counsel for Appellant
MEMORANDUM DECISION
Judge Patricia A. Orozco delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Samuel A. Thumma joined. OROZCO, Judge:
¶1 Marlon C. McCowan (McCowan) appeals his convictions and sentences for second degree murder, a class one dangerous felony and promoting prison contraband, a class two felony. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
We review the facts in the light most favorable to sustaining the jury's verdict. State v. Fiihr, 221 Ariz. 135, 136, 211 P.3d 13, 14 (App. 2008).
¶2 Rival gang members McCowan and A.T. (Victim), were prison inmates. In June 2010, McCowan and another inmate, Johnson, jumped over a railing and ran towards Victim. Victim, also ran towards McCowan and Johnson, and the three began to fight.
¶3 Johnson restrained Victim while McCowan repeatedly stabbed Victim with a metal shank. Victim bled to death shortly after the fight. The State charged McCowan with second degree murder and promoting prison contraband.
¶4 At trial, McCowan argued he acted in self-defense. Towards the end of the trial, the court presented the parties with a draft of proposed jury instructions. The draft included instructions regarding second degree murder, promoting prison contraband, and explained justifications and self-defense. The instructions did not include a manslaughter instruction. The parties agreed to the instructions without objection.
¶5 The jury found McCowan guilty as charged. McGowan timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) §§ 12-120.21.A.1 (2003), 13-4031, and -4033.A.1 (2010).
DISCUSSION
¶6 McCowan contends the trial court committed fundamental, prejudicial error when it did not sua sponte instruct the jury on the lesser offense of "sudden quarrel or heat-of-passion manslaughter." McCowan acknowledges his trial counsel did not ask for a lesser included offense in the jury instructions and therefore our review is for fundamental error resulting in prejudice. See State v. Bearup, 221 Ariz. 163, 168, ¶ 21, 211 P.3d 684, 689 (2009) However, McCowan argues that the trial court's failure to instruct the jury deprived him of an alternative theory of culpability.
¶7 When a defendant fails to object at trial our review is limited to fundamental, prejudicial error. See State v. Fiihr, 221 Ariz. 135, 136, ¶ 1, 211 P.3d 13, 14 (App. 2008). McCowan bears the burden of proving that (1) an error existed, (2) the error was fundamental, and (3) the error caused him prejudice. Bearup, 221 Ariz. at 168, ¶ 21, 211 P.3d at 689.
¶8 By rule, each party's counsel is required to submit a written request for jury instructions to the trial court. Ariz. R. Crim. P. 21.2. A party cannot assign error on appeal (other than fundamental, prejudicial error) if the party does not object to the instruction prior to the jury retiring to consider its verdict. Ariz. R. Crim. P. 21.3.c. The trial court is not required to sua sponte include instructions for lesser included offenses except in capital cases. State v. Gipson, 229 Ariz. 484, 485-87, ¶¶ 8-9, 15, 277 P.3d 189, 190-92.
Trial courts were once required to instruct on every lesser included offense supported by the evidence in all homicide cases. However, this rule was abandoned. See Ariz. R. Crim. P. 21.3.c cmt. ("[T]his provision reverses the rule . . . that the court is duty bound in all homicide cases to instruct the jury on all necessarily-included offenses that the evidence will support, regardless of whether or not such instruction is requested.")
--------
¶9 As the supreme court said in Gibson, "[w]e do not suggest that, in exercising their discretion, trial judges should ignore the objections of both the defendant and the state to a lesser-included offense instruction." The court continued, "'In general the trial judge should withhold charging on lesser[-]included offense[s] unless one of the parties requests it, since that charge is not inevitably required in our trials, but is an issue best resolved, in our adversary system, by permitting counsel to decide on tactics.'" Gipson, 229 Ariz. at 487, ¶ 15, 277 P.3d at 192 (quoting Walker v. United States, 418 F.2d 1116, 1119 (D.C. Cir. 1969).
¶10 Here, McCowan did not request a manslaughter jury instruction and did not object to the jury instructions as given. This decision may have been tactical; McCowan may not have wanted a manslaughter instruction. See, e.g., State v. Krone, 182 Ariz. 319, 323, 897 P.2d 621, 625 (1995) ("A defendant should not have a lesser[-]included instruction forced upon him."). Therefore, we find no error, much less fundamental error, by the trial court not including the manslaughter instruction sua sponte.
CONCLUSION
¶11 For the above stated reasons, we affirm the McCowan's convictions and sentences.