State v. Fournier

256 Ariz. 33

535 P.3d 35

The STATE of Arizona, Appellee,

v.Larry James FOURNIER, Appellant.

No. 2 CA-CR 2022-0108

Court of Appeals of Arizona, Division 2.

Filed July 26, 2023

Kristin K. Mayes, Arizona Attorney General, Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals, By Jacob R. Lines, Assistant Attorney General, Tucson, Counsel for Appellee

James Fullin, Pima County Legal Defender, By Robb P. Holmes, Assistant Legal Defender, Tucson, Counsel for Appellant

Judge O'Neil authored the opinion of the Court, in which Vice Chief Judge Staring and Judge Sklar concurred.

O'NEIL, Judge:

¶1 Larry Fournier appeals from his convictions and sentences for second-degree murder, theft, and theft of means of transportation. He contends the trial court improperly denied his motion to strike a prospective juror, erred in certain evidentiary rulings, and incorrectly instructed the jury. We affirm.

BACKGROUND

¶2 In October 2018, Fournier was living with a roommate, J.H., in Tucson. At some point late that month, J.H. confronted Fournier about a $2,500 check that Fournier had apparently written to himself out of J.H.’s account. The two men argued, and J.H. picked up his phone to call the police. Believing he might be arrested, Fournier took the phone and punched J.H. in the head repeatedly until he "slumped" in the area of a desk. He then took J.H. by the shirt and threw him to the floor. Fournier saw J.H.’s motionless body and blood pooling on the floor, and he knew J.H. was dead. He took J.H.’s car and left.

¶3 On October 28, Fournier began depositing checks from J.H. with signatures that did not match J.H.’s handwriting. He deposited similar checks in Tucson on October 28 and 29, and in Albuquerque on November 1. On October 30, he purchased a new set of tires in Phoenix, shut down his existing telephone number, and set up a new prepaid telephone line under a different number from the same cellular service provider.

¶4 J.H.’s brother called the police on November 2 because he was concerned for J.H.’s wellbeing and noticed suspicious withdrawals from his bank account. When an officer visited J.H.’s residence that same day, he found J.H.’s vehicle gone but saw nothing else that seemed suspicious. Officers returned to the residence on November 6 and immediately recognized the odor of a decomposing body. The doors were locked, and there was no sign of forced entry. After prying open the door to enter the residence, officers found J.H.’s decomposed body with blood pooled around the head.

¶5 Officers arrested Fournier at a motel in Michigan on November 14. J.H.’s car was found backed into a parking space in front of the motel, bearing a license plate belonging to a different vehicle. A computer tower, its data wiped clean, was found in the car after officers noted the absence of any computer tower connected to a computer monitor located in J.H.’s home.

¶6 Fournier was tried on charges of first-degree murder, theft, and theft of means of transportation. A jury found Fournier not guilty of first-degree murder but guilty of second-degree murder as a lesser-included offense. The jury also found him guilty of theft and theft of means of transportation. The trial court sentenced Fournier to concurrent terms of imprisonment, the longest being twenty years. Fournier appealed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).

DISCUSSION

¶7 Fournier asserts the trial court abused its discretion by rehabilitating a prospective juror and denying a motion to strike that juror for cause. He further asserts the court erred by admitting into evidence a handwritten confession that Fournier had given to a fellow jail inmate and by failing to sua sponte instruct the jury regarding the voluntariness of that confession. He also challenges the court's instruction on manslaughter as a lesser-included offense and its decision to instruct the jury on flight or concealment. Finally, Fournier argues the court erred by precluding him from presenting evidence of a prior legitimate check that J.H. had made out to him months earlier.

I. Rehabilitation of Juror and Denial of Motion to Strike for Cause

¶8 We first address Fournier's arguments related to jury selection, which are informed by a recent amendment to the Arizona Rules of Criminal Procedure that eliminated peremptory strikes in criminal trials. See Ariz. Sup. Ct. Order R-21-0020 (Aug. 30, 2021). As we recently discussed in State v. Jimenez , No. 2 CA-CR 2022-0062, ¶¶ 6-8, ––– Ariz. ––––, 534 P.3d 516 (Ariz. App. July 13, 2023), this amendment entrusts our trial courts with the responsibility to determine the final composition of juries. See, e.g. , State v. Hickman , 205 Ariz. 192, ¶ 31, 68 P.3d 418 (2003). The amendment did not, however, change either our standard of review or the standard a court must apply to strike a juror for cause.

¶9 A party challenging a juror for cause must show "that the juror cannot render a fair and impartial verdict" by a preponderance of the evidence. Ariz. R. Crim. P. 18.5(h) ; see also State v. Comer , 165 Ariz. 413, 426, 799 P.2d 333, 346 (1990). "Because a trial judge has the best opportunity to assess whether a juror can be fair and impartial, appellate courts review such decisions only for abuse of discretion." Hickman , 205 Ariz. 192, ¶ 39, 68 P.3d 418. The court did not abuse its discretion by concluding that Fournier failed to meet his burden here.

¶10 During jury selection, Fournier's attorney asked the panel several questions connected to the presumption of innocence and the burden of proof. He began by asking whether any of the prospective jurors would vote to convict Fournier if deliberations began immediately, without any evidence having been presented. No juror raised a hand. When he later asked whether any juror would "need more information before [making] a decision," several jurors raised their hands. Fournier's attorney responded by telling the panel "that's the incorrect answer," explaining "that unless he's proven guilty beyond a reasonable doubt, anything short of that standard requires a not guilty verdict." He asked the same question again, and no juror raised a hand. He asked whether any prospective juror would vote guilty, and no juror raised a hand. Finally, he asked whether any prospective juror would vote not guilty, and every juror but one raised a hand. When Fournier's attorney asked that juror why he did not raise his hand, the juror explained that he was trying to ensure that "when [he] raise[d his] hand that [he felt] solid behind that answer." He said he "wouldn't be able to find him guilty or not guilty without getting more information."

¶11 Fournier's attorney did not ask further questions of the juror, but the trial court did. The court asked, "[I]f there are no facts that are presented to you and the law says you have to have facts presented to you, you would understand what the result would be, right?" The juror answered, "Yes, yes." The court acknowledged that it would "become clear... that there's evidence," and the question had been "kind of a trick question." The juror explained that he "wouldn't be able to say right now not guilty, because [he didn't] have any information in front of [him]," and he indicated that "in order to find someone not guilty, [he] would have to look over the facts." The court further clarified the question and asked, "[I]f no facts were presented, what other verdict could you have?" The juror answered, "Certainly. I understand that." This juror, like the rest, had previously affirmed that he would have no difficulty holding the state to its burden to prove the defendant guilty beyond a reasonable doubt. He had acknowledged that he would have no reservation finding the defendant not guilty if the state failed to meet that burden. He had agreed that he would have no problem finding the defendant not guilty even if the defendant chose not to present any evidence, testify, or appear at trial. And he had indicated that he did not have "a hard time" with the notion that the defendant "is innocent" before the presentation of evidence.

¶12 Preliminarily, the trial court did not err by asking questions to rehabilitate the juror. In support of his argument, Fournier cites the comment to Rule 18.5(f), Ariz. R. Crim. P., added in connection with the elimination of peremptory strikes. The comment states:

When feasible, the court should permit liberal and comprehensive examination by the parties, refrain from imposing inflexible time limits, and use open-ended questions that elicit prospective jurors’ views narratively. The court should refrain from attempting to rehabilitate prospective jurors by asking leading, conclusory questions that encourage prospective jurors to affirm that they can set aside their opinions and neutrally apply the law.

This comment, however, does not alter the rule. See State v. Aguilar , 209 Ariz. 40, ¶ 26, 97 P.3d 865 (2004) ("Although a comment may clarify a rule's ambiguous language, a comment cannot otherwise alter the clear text of a rule."). Fournier was required to show that the prospective juror was "incapable of rendering a fair and impartial verdict."

State v. Acuna Valenzuela , 245 Ariz. 197, ¶ 21, 426 P.3d 1176 (2018) (quoting State v. Lavers , 168 Ariz. 376, 390, 814 P.2d 333 (1991) ); Ariz. R. Crim. P. 18.5(h).

¶13 Trial courts retain broad discretion to either excuse or retain prospective jurors. Jimenez , 534 P.3d 516, ¶ 8. The comment to Rule 18.5(f) does not limit or change its requirement that courts "conduct a thorough oral examination of the prospective jurors and control the voir dire examination." Ariz. R. Crim. P. 18.5(f) ; see Aguilar , 209 Ariz. 40, ¶ 26, 97 P.3d 865. Similarly, the comment does not strip away what the rule expressly provides by giving courts "the discretion to manage voir dire." Ariz. R. Crim. P. 18.5(f) ; see Aguilar , 209 Ariz. 40, ¶ 26, 97 P.3d 865. The comment does not negate prior case law requiring c...