State v. Chavez

THE STATE OF ARIZONA, Appellee,

v.MARCO ANTONIO CHAVEZ, Appellant.

2 CA-CR 2010-0263

COURT OF APPEALS STATE OF ARIZONA DIVISION TWO DEPARTMENT B

Filed: April 28, 2011

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

Not for Publication

Rule 111, Rules of

the Supreme Court

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. CR20064385?

Honorable Richard D. Nichols, Judge

AFFIRMED

Thomas C. Horne, Arizona Attorney General By Kent E. Cattani and Michael T. O'Toole

Phoenix

Attorneys for Appellee

Altfeld & Battaile P.C.

By Robert A. Kerry

Tucson

Attorneys for Appellant

KELLY, Judge.

¶1 Appellant Marco Chavez appeals from his multiple felony convictions, all arising from his burglary of a Tucson home. He maintains the trial court erred in denying his motion for a judgment of acquittal, made pursuant to Rule 20, Ariz. R. Crim. P., because there was insufficient evidence of premeditation to sustain his first-degree murder conviction and in denying his motion to suppress his statement to police because his waiver of rights was involuntary. Finding no error, we affirm.

Background

¶2 "We view the facts and all reasonable inferences therefrom in the light most favorable to upholding the verdicts." State v. Tamplin, 195 Ariz. 246, ¶ 2, 986 P.2d 914, 914 (App. 1999). In November 2006, Chavez kicked open the door of a Tucson home to burglarize it. At some point during the burglary, the homeowner, M., returned home and Chavez shot him in the face with a.357 Magnum. The bullet lodged in M.'s brain, causing damage that would have stopped him from moving more than one or two steps after he was hit. Chavez continued to take things from the house and started a fire in it. He fled in M.'s car and drove to Nogales.

¶3 In Nogales, Chavez went to the home of a friend, Daniel Tellez, with whom he had lived a few months before. He gave Tellez a television set and a basket of clothing from M.'s car. Unbeknownst to Tellez, he left M.'s car and other items from the burglary in Tellez's garage. After Tellez discovered the items in the garage and told Chavez to remove them, the two took a second television Chavez had stolen from M.'s home to Chavez's house in Tellez's truck. Along the way, Tellez failed to stop at a stop sign and officers, who had been watching Tellez's home, stopped Tellez's truck, ultimately arresting the two. During a search of Chavez's and Tellez's homes, officers discovered various items from M.'s home and other items, including a pair of shoes that matched an imprint taken from M.'s front door and had M.'s blood on them.

¶4 Chavez was charged with first-degree murder, arson of an occupied structure, first-degree burglary, theft of a means of transportation, and theft by control. He was convicted on all counts, but the jury was unable to agree whether he should receive the death penalty or life in prison. The state thereafter withdrew its request for the death penalty and the trial court imposed a natural-life prison sentence, along with other consecutive, aggravated prison terms totaling eighty-eight years. This appeal followed.

Discussion

I. Premeditation

¶5 Chavez first contends the trial court erred in denying his motion for judgment of acquittal, made on the grounds the state had presented insufficient evidence of premeditation. "We review the trial court's ruling on a motion for judgment of acquittal for an abuse of discretion." State v. McCurdy, 216 Ariz. 567, ¶ 14, 169 P.3d 931, 937 (App. 2007). "A judgment of acquittal is appropriate only when there is no substantial evidence to prove each element of the offense and support the conviction." Id. "If reasonable persons could differ as to whether the evidence establishes a fact in issue, then the evidence is substantial." Id. "In determining the sufficiency of the evidence to withstand a Rule 20 motion, we view the evidence in a light most favorableto sustaining the verdict." Id. And a criminal conviction "may rest solely on circumstantial proof." State v. Nash, 143 Ariz. 392, 404, 694 P.2d 222, 234 (1985).

¶6 Chavez filed a motion for judgment of acquittal pursuant to Rule 20 and the trial court heard argument on the motion on the last day of the guilt phase of Chavez's trial. Chavez argued, as he does on appeal, that the state presented insufficient evidence of premeditation to sustain a conviction for first-degree murder. The trial court denied the motion, concluding:

[T]he circumstantial evidence supports a finding that the burglar was armed with a loaded pistol prior to committing the burglary.

By being so armed, the burglar was preparing himself for the eventuality that when he was in the residence, the home owner could interrupt the burglary. And the burglar was prepared to either escape or shoot the person who interrupted the burglar.

Second, the burglar was in the residence prior to the home owner interrupting the burglary. The trier of fact could find that the burglar either saw or heard the home owner come in, and at that time had an opportunity to decide whether or not to flee or kill the home owner.

Chavez renewed the motion at the close of the state's case and the court denied it again.

¶7 As an initial matter, we note that the jury did not unanimously agree whether Chavez had premeditated the murder, see A.R.S. § 13-1105(A)(1), or whether he had killed the victim in the course of a felony, see § 13-1105(A)(2); accordingly, if evidence was insufficient as to either theory, Chavez is entitled to reversal of his murder conviction. See State v. Detrich, 178 Ariz. 380, 383-84, 873 P.2d 1302, 1305-06 (1994) (if guilty verdict based in part on felony murder theory and underlying felony reversed, murder conviction must be reversed); cf. State v. Anderson, 210 Ariz. 327, ¶ 59, 111 P.3d 369, 385 (2005) (court need not consider sufficiency of evidence supporting felony murder when jury returns separate guilty verdict for premeditated murder). Chavez argues only that the evidence was insufficient to sustain his conviction on a premeditation theory. We conclude sufficient evidence was presented to sustain Chavez's conviction under that theory.

¶8 The evidence of premeditation was entirely circumstantial and was as follows: (1) Chavez prepared for the burglary by arming himself with a loaded handgun; (2) Chavez shot M. from a distance of two to three feet away, permitting the inference he had an opportunity to aim and fire, rather than shooting M. during a struggle; (3) Chavez completed the burglary after he shot M., permitting the inference he had planned to use the handgun if necessary to complete the burglary; (4) M.'s injuries were such that he likely died in the immediate area where he was shot and his body was found—the master bedroom at the back of the house—allowing the inference that Chavez had the option to flee rather than shoot M. but elected to shoot; (4) M. was shot in the face, permitting the inference Chavez aimed to kill rather than disable M.; and (5) Chavez told Tellez that he had been in a struggle with a man in Tucson and had "knocked him out" and that he "had to do what he had to do."

¶9 Chavez first argues that a finding of premeditation cannot be premised solely upon possession, or use of, a gun in the killing. Citing 40A Am. Jur. 2D Homicide § 448 (2010), the state concedes that "premeditation may not be inferred solely from theuse of a deadly weapon."¹ But, as the state also argues, "there is more here than the mere use of a deadly weapon." "[T]he inference of premeditation may be shown by additional circumstances, such as... the defendant's conduct before and after the killing, or the striking of the lethal blow after the deceased was rendered helpless." Id. In this case, the state presented evidence that Chavez continued his burglary of the home after M.'s death. And, the jurors reasonably could have inferred that Chavez had shot M. after he was "rendered helpless" from his statement to Tellez that he had "knocked... out" the man in Tucson.²

¶10 In his reply, Chavez also argues that the evidence M. was shot from a distance of at least two or three feet was not probative of premeditation. He argues that based on injuries to his face and hand and the presence of pruning shears in the house, the jurors could have concluded there had been a struggle³ He maintains that a distance oftwo or three feet "is arms length, the distance needed to level a gun and fire it" if Chavez shot M. during a struggle. He asserts that "nothing in the record... suggest[s] that any meaningful period of time elapsed between the burglar being struck and the shooting of the victim." And that "it is equally logical to assume that the burglar shot reflexively out of fear for his life."

¶11 First, we note that the fact that jurors could have drawn the inferences Chavez suggests does not foreclose a finding of sufficient evidence of premeditation. The jury could just as easily have drawn contrary inferences and concluded that Chavez's shooting M. at a distance, even a small one, had given him at least a brief time to reflect and then decide to kill M. See State v. Thompson, 204 Ariz. 471, ¶¶ 29, 31, 65 P.3d 420, 427-28 (2003) (passage of time is not itself premeditation or proxy for it, but is circumstantial evidence of premeditation). Thus, because "'reasonable minds could differ on the inferences to be drawn from the evidence, ' which we construe in favor of upholding the trial court's ruling, the motion for judgment of acquittal" was properly denied. State v. Molina, 211 Ariz. 130, ¶ 8, 118 P.3d 1094, 1097 (App. 2005), quoting State v. Sullivan, 205 Ariz. 285, ¶ 6, 69 P.3d 1006, 1008 (App. 2003); see also State v. Landrigan, 176 Ariz. 1, 5, 859 P.2d 111, 115 (1993) ("Since reasonable minds could differ on the inferences to be drawn, the trial judge properly denied the Rule 20 motion.").

¶12 Likewise, that...