Opinion
No. 1 CA-CR 19-0578
09-22-2020
STATE OF ARIZONA, Appellee/Cross Appellant, v. OSCAR QUINTERO, Appellant/Cross-Appellee.
COUNSEL Arizona Attorney General's Office, Phoenix By Casey Ball Counsel for Appellee Yuma County Public Defender's Office, Yuma By Robert Trebilcock 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Yuma County
No. S1400CR201800044
The Honorable Brandon S. Kinsey, Judge
AFFIRMED AS MODIFIED
COUNSEL Arizona Attorney General's Office, Phoenix
By Casey Ball
Counsel for Appellee Yuma County Public Defender's Office, Yuma
By Robert Trebilcock
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in which Judge D. Steven Williams and Judge David D. Weinzweig joined. THUMMA, Judge:
¶1 Oscar Quintero appeals from his convictions and sentences for first-degree murder, attempted first-degree murder, and three counts of aggravated assault. The State concedes that two of the aggravated assault convictions (Counts 3 and 4) arise from the same criminal act and are therefore multiplicitous. Accordingly, the judgment of guilt and sentencing order are therefore modified to reflect that Counts 3 and 4 are merged into a single count, and the conviction and the sentence imposed for Count 4 are vacated. Because Quintero has shown no other error, his other convictions and sentences are affirmed.
FACTS AND PROCEDURAL HISTORY
On appeal, this court views the evidence in the light most favorable to sustaining the conviction and resolves all reasonable inferences against the defendant. State v. Karr, 221 Ariz. 319, 320 ¶ 2 (App. 2008).
¶2 Quintero and C.M. had two young children when they ended their relationship in November 2017 and began to live separately. A few months later, Quintero approached C.M. and her co-worker, H.V., as they were talking in H.V.'s parked vehicle. When C.M. noticed Quintero, she and H.V. exited the vehicle. Quintero and C.M. began to argue, and Quintero shot H.V. in the face, seriously wounding him.
¶3 C.M. ran, and Quintero shot her twice in the back. As C.M. fell to the ground, pleading for her life, Quintero walked toward her. He yelled "You're still not dead, bitch?" before shooting her in the head. C.M. later died from the wounds. Quintero then returned to H.V., pointed the gun at H.V.'s head, and told him he would spare his life. Quintero fled and was arrested later that evening.
¶4 The jury found Quintero guilty of premeditated first-degree murder, attempted premeditated first-degree murder, and three counts of aggravated assault. The court imposed a combination of concurrent and consecutive prison sentences, the longest being natural life for the first-degree murder conviction.
¶5 Quintero timely appealed. This court has jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031, and -4033(A)(1) (2020).
Although the State filed a notice of cross appeal, it raises no issues in furtherance of that notice.
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.
DISCUSSION
I. The Superior Court Did Not Fundamentally Err During Jury Selection.
¶6 On the second day of voir dire, a prospective juror informed the court that fellow jurors were discussing media reports of the shooting. She said: "I heard that there was a person that was in a relationship with a woman; that something happened between them; they didn't know what; and that person murdered the woman and shot a man." When questioned by defense counsel, the juror stated, "I don't know that [the other jurors] have preconceived ideas . . . [or] . . . judgments . . . [about the case]. . . . [T]hey didn't have any judgments."
¶7 Noting that the jurors' questionnaire admonished them to avoid media coverage of the case and not to discuss the case among themselves, the court informed the parties it would meet with the jury pool to address violations of that admonition. Quintero did not object.
¶8 The court went to the jury assembly room with the court reporter and the bailiff. There, on the record, the court reminded the jurors of the admonition against media exposure and discussing the case. The court also explained why those prohibitions were important to ensure a fair and impartial jury. The court's comments, on the record, to the potential jurors lasted ten minutes and the court then left the jury assembly room. The potential jurors then reported to the bailiff whether they were exposed to media coverage of the case or discussed the case with others. The bailiff later reported 32 potential jurors potentially violated the questionnaire's admonishment.
¶9 The court returned to the courtroom and informed the parties of the proceedings in the jury assembly room. Quintero then moved to disqualify the panel based on the court's ex parte interaction with the potential jurors. The court denied the motion, noting it was both untimely and that nothing suggested the panel was improperly tainted. The 32 potential jurors identified by the bailiff were then individually questioned by the court and the parties on the record.
¶10 On appeal, Quintero argues the court erred in conducting voir dire in the jury assembly room without the parties present. Because Quintero did not timely object, he must establish fundamental, prejudicial error. State v. Escalante, 245 Ariz. 135, 140 ¶ 12 (2018).
Quintero summarily asserts the court committed fundamental error, but he substantively argues that the error was structural, given he was not present during the comments made to the potential jurors in the jury assembly room. Quintero, however, was only absent from approximately 10 minutes of the multi-day jury selection process. Accordingly, structural error review does not apply here. State v. Morris, 215 Ariz. 324, 335 ¶¶ 44-45 (2007). --------
¶11 "A defendant establishes fundamental error by showing that (1) the error went to the foundation of the case, (2) the error took from the defendant a right essential to his defense, or (3) the error was so egregious that he could not possibly have received a fair trial." Id. at 142 ¶ 21 (citation omitted). Accordingly, Quintero "bears the burden to establish that (1) error exists, (2) the error is fundamental, and (3) the error caused him prejudice." State v. James, 231 Ariz. 490, 493 ¶ 11 (App. 2013) (citations and quotations omitted). On this record, Quintero fails to make this required showing.
¶12 Although Quintero characterizes the ex parte proceeding as "voir dire," the superior court correctly found that was not a proper characterization. The record reflects that the court did not discuss the facts or law related to this case during the ex parte meeting. Nor did the court ask the potential jurors to answer questions. In short, the court did not engage in voir dire without the parties present. No error, fundamental or otherwise, occurred. See Ariz. R. Crim. P. 18.5; cf. State v. Rose, 231 Ariz. 500, 504, ¶ 9 (2013) (noting defendants have a right to be present during jury selection); see Escalante, 245 Ariz. at 142 ¶ 21 (first step in fundamental error review is determining whether error occurred).
¶13 Quintero also fails to establish prejudice. He asserts that at least one juror improperly learned before trial that Quintero murdered his girlfriend "and shot another guy." But the identity of the shooter was not an issue at trial; Quintero admitted he shot the victims. Quintero's defense instead focused on his state of mind at the time of the incident, claiming the shootings were not premeditated, but rather he "lost it" when he discovered C.M. and H.V. alone in the parked vehicle. Thus, any exposure potential jurors had to media reports identifying Quintero as the shooter did not impact his ability to present his defense. See Morris, 215 Ariz. at 335 ¶ 45 (assuming defendant's absence from prescreening of potential jurors was error, it was harmless). Accordingly, no fundamental error occurred that prejudiced Quintero. See Rose, 231 Ariz. at 505 ¶ 10 (finding no fundamental error where defendant was absent from three days of voir dire.)
II. The Court Properly Rejected Quintero's Requested Manslaughter Jury Instruction.
¶14 Quintero argues the court erred by not instructing the jury on provocation manslaughter as a lesser-included offense of first-degree murder. Because the trial evidence did not support the requested instruction, no error occurred. Furthermore, any potential error was harmless.
¶15 The superior court "must instruct the jury on every lesser-included offense to the one charged if the evidence supports the giving of the instruction." State v. Vickers, 159 Ariz. 532, 542 (1989). In this case, the court instructed the jury on second-degree murder, but denied Quintero's requested jury instruction on provocation manslaughter.
¶16 A person commits provocation manslaughter by "[c]omitting second degree murder . . . upon a sudden quarrel or heat of passion resulting from adequate provocation by the victim[.]" A.R.S. § 13-1103(A)(2). Based on the additional element of "provocation," provocation manslaughter technically is not a lesser-included offense of second-degree murder. State v. Lua, 237 Ariz. 301, 303 ¶ 7 (2015). Nonetheless, a provocation manslaughter instruction should be given in a first-degree murder trial if warranted by the evidence. Id. at 304-05 ¶¶ 9-14; Vickers, 159 Ariz. at 542.
¶17 Here, there was no evidence of "adequate provocation by the victims," an essential element of provocation manslaughter. Although Quintero testified that he observed movement in the vehicle suggesting C.M. and H.V. were engaged in a sexual act, he cites no authority that requires a provocation manslaughter instruction in a case involving a defendant murdering a former romantic partner. See, e.g., People v. McCarthy, 547 N.E.2d 459, 463 (Ill. 1989) ("In this case, the victim had broken off her relationship with the defendant some two months before the homicide occurred, and she and the couple's two children were no longer living with the defendant. Just as divorced persons may not claim the benefit of the voluntary manslaughter instruction, there would be no reason to afford the same instruction to unmarried persons whose relationship has ended."). Thus, Quintero's apparent jealousy upon seeing C.M. talking with H.V. in a parked vehicle was not sufficient provocation to require a manslaughter instruction. Quintero cites no authority to the contrary. Further, Quintero's testimony that the victims verbally provoked him did not warrant a manslaughter instruction as a matter of law. State v. Vickers, 159 Ariz. 532, 542 (1989) ("[W]ords alone are not adequate provocation to justify reducing an intentional killing to manslaughter."). The court did not abuse its discretion by refusing to instruct the jury on provocation manslaughter. See State v. Cox, 214 Ariz. 518, 521 ¶ 16 (App. 2007) (denial of requested jury instruction reviewed for abuse of discretion).
III. Counts 3 and 4 Are Multiplicitous
¶18 Quintero challenges his convictions and resulting sentences for aggravated assault in Counts 3 and 4. He argues both counts relate to the aggravated assault committed against H.V. when Quintero shot him. Thus, because the two charges relate to only one criminal act, Quintero contends they are multiplicitous. "Multiplicity occurs when an indictment charges a single offense in multiple counts . . . [and] raises the potential for multiple punishments, which implicates double jeopardy." State v. Powers, 200 Ariz. 123, 125 ¶ 5 (App. 2001). The State concedes error.
¶19 Having considered the parties' briefs and the record, this court accepts the State's confession of error. Given that error, the remedy is to merge the convictions and "permit[] only a single sentence." Merlina v. Jejna, 208 Ariz. 1, 4 ¶ 14 n.4 (App. 2004) (quoting United States v. Reed, 639 F.2d 896, 905 n.6 (2d Cir. 1981)).
CONCLUSION
¶20 Quintero's conviction for Count 4 is merged into Count 3 as a single conviction for aggravated assault and the sentence for Count 3 is affirmed. As a result, the conviction and sentence for Count 4 are vacated. The remaining convictions and sentences are affirmed.