State of Arizona v. Robert Carlos Garcia ( 2008 )

FILED BY CLERK
IN THE COURT OF APPEALS SEP -3 2008
STATE OF ARIZONA COURT OF APPEALS
DIVISION TWO DIVISION TWO
THE STATE OF ARIZONA, )
) 2 CA-CR 2007-0156
Appellee, ) DEPARTMENT A
)
v. ) OPINION
)
ROBERT CARLOS GARCIA, )
)
Appellant. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR-20053302
Honorable Hector E. Campoy, Judge
AFFIRMED
Terry Goddard, Arizona Attorney General
By Kent E. Cattani and Laura P. Chiasson Tucson
Attorneys for Appellee
Isabel G. Garcia, Pima County Legal Defender
By Robb P. Holmes Tucson
Attorneys for Appellant
B R A M M E R, Judge.
¶1 Following a jury trial, Robert C. Garcia was convicted of second-degree
murder. The trial court sentenced him to a partially mitigated, thirteen-year prison term. On
appeal, he contends the court committed fundamental error in instructing the jury.
¶2 The facts of the crime are not relevant to the issue on appeal. The trial court
instructed the jury on the elements of first- and second-degree murder and manslaughter, all
of which were supported by the evidence. Garcia contends the court’s instructions
“misstated the law and prevented the jury from properly considering whether Garcia was
guilty of second-degree murder or manslaughter.” Because Garcia failed to object at trial,
we review the instructions for fundamental error only, that is, for “‘error going to the
foundation of the case, error that takes from the defendant a right essential to his defense, and
error of such magnitude that the defendant could not possibly have received a fair trial.’”
State v. Henderson, 210 Ariz. 561,¶ 19, 115 P.3d 601, 607 (2005), quoting State v. Hunter,
142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). “To prevail under this standard of review, a
defendant must establish both that fundamental error exists and that the error in his case
caused him prejudice.” Id. ¶ 20. In order to do so, he “must first prove error.” Id. ¶ 23.
¶3 The trial court instructed the jury that second-degree murder is a lesser
included offense of first-degree murder and that manslaughter is a lesser included offense
of second-degree murder. It permitted the jury to consider second-degree murder if it found
Garcia “not guilty of first degree murder” or if, “[a]fter a full and careful consideration of
the facts,” the jury could not “agree on whether to find [Garcia] guilty or not guilty of first
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degree murder.” Likewise, it permitted the jury to consider the offense of manslaughter if
it found Garcia “not guilty of second degree murder” or could not agree on whether to find
him guilty or not guilty of that offense “[a]fter full and careful consideration of the facts.”
Garcia contends “the instruction should have stated that[,] if the jury found Garcia not guilty
or w[as] unable to reach a verdict on first-degree murder, then [it] needed to decide whether
he committed second-degree murder or manslaughter.” He argues that, “[i]f the jur[ors]
followed the instructions as the court gave them, they would never have reached the issue of
whether Garcia committed manslaughter because they did not find him not guilty of second-
degree murder as the instruction required.” Essentially, he contends the court should have
instructed the jury to consider second-degree murder and manslaughter simultaneously. But
we find no authority requiring such an instruction.
¶4 In State v. Wussler, 139 Ariz. 428, 430, 679 P.2d 74, 76 (1984), our supreme
court held that a jury must find a defendant not guilty of the charged or greater offense before
considering a lesser offense. Wussler was convicted of first-degree murder. Id. at 429, 679
P.2d at 75. But the trial court had instructed the jury on the lesser included offenses of
second-degree murder and manslaughter, and the supreme court approved the following
instruction:
[Y]ou will only consider the lesser offenses if you determine that
the Defendant is not guilty of the greater offense. If you
determine that the Defendant, for example is guilty of first-
degree murder you stop right there. It is only if you determine
that he is not guilty of first-degree murder that then you will
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consider second-degree. If you find him guilty of second degree
murder you do not concern yourselves with manslaughter.
Id. The court’s decision was based on a perceived need to “provide[] for a more logical and
orderly process for the guidance of the jury in its deliberations.” Id. at 430, 679 P.2d at 76.
¶5 In State v. LeBlanc, 186 Ariz. 437, 439, 924 P.2d 441, 443 (1996), however, the
supreme court questioned the premise of the Wussler decision that it was necessary to
“micromanage” jury discussions and deliberations. The court recognized that juries “possess
both common sense and a strong desire to properly perform their duties” and ought to be
treated like “responsible adults” rather than “untrustworthy children.” Id. The court
determined “the better practice” was to allow a jury to “deliberate on a lesser offense if it
either (1) finds the defendant not guilty on the greater charge, or (2) after reasonable efforts
cannot agree whether to acquit or convict on that charge.” Id. at 438, 924 P.2d at 442. It then
directed trial courts to “give a ‘reasonable efforts’ instruction in every criminal case involving
lesser-included offenses.” Id. at 440, 924 P.2d at 444 (emphasis added).
¶6 Garcia does not contest the state’s assertion the trial court’s instruction in this
case complied with LeBlanc. He contends, however, that manslaughter “has a more unusual
relationship to second-degree murder than the instruction takes into account” because
sometimes it requires a defendant to have committed second-degree murder in order to be
found guilty of manslaughter. See Peak v. Acuna, 203 Ariz. 83, ¶ 6, 50 P.3d 833, 834 (2002).
For example, under A.R.S. § 13-1103(A)(2), a person commits manslaughter by committing
second-degree murder “upon a sudden quarrel or heat of passion resulting from adequate
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provocation by the victim.” 1 Therefore, he asserts, by instructing the jury that it must first
either find him not guilty of second-degree murder or be unable to agree on his guilt for that
offense, the court prevented the jury from considering that definition of manslaughter.
¶7 We recognize the logic in Garcia’s argument; however, we are not convinced
that the instruction prevented the jury from considering manslaughter. The trial court clearly
explained that sudden-quarrel or heat-of-passion manslaughter included the elements of
second-degree murder. And it instructed the jury to “consider all [of the court’s] instructions”
and to refrain from “pick[ing] out one instruction or part of one and ignor[ing] the others.”
Garcia has not convinced us the jury failed to understand the relationship between the two
crimes before it began deliberating and applied that knowledge in determining whether to find
Garcia guilty or not guilty of second-degree murder. Although the jury was instructed to
consider whether to return a guilty verdict on second-degree murder before considering the
manslaughter charge, it was not instructed to disregard the definition of manslaughter in so
doing.
¶8 Moreover, even if we conclude that at least the potential for confusion exists
in giving a LeBlanc-type instruction for cases involving manslaughter as a lesser included
offense of first-degree murder, we have no authority to overrule or disregard the decisions of
1
Similarly, under § 13-1103(A)(4), a person commits manslaughter by committing
second-degree murder while being coerced to do so by the threat or use of unlawful deadly
physical force. Because the jury was not instructed pursuant to § 13-1103(A)(4), however,
we discuss only manslaughter upon a sudden quarrel or in the heat of passion.
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our supreme court. State v. Newnom, 208 Ariz. 507, ¶ 8, 95 P.3d 950, 951 (App. 2004). As
noted above, the court in LeBlanc directed that a reasonable-efforts instruction be given “in
every criminal case involving lesser-included offenses.” 186 Ariz. at 440, 924 P.2d at 444.
It included no exceptions for specific crimes. Further, the court in LeBlanc specifically stated
that the instruction approved in Wussler, a case that involved the very crimes at issue here, did
“not violate United States or Arizona Constitutions,” and “the giving of a Wussler-type
instruction does not rise to the level of fundamental error.” LeBlanc, 186 Ariz. at 439-40, 924
P.2d at 443-44; see Wussler, 139 Ariz. at 429, 679 P.2d at 75. That said, we likewise have
no basis for concluding that giving a LeBlanc-type instruction amounts to fundamental error.
¶9 Garcia’s conviction and sentence are affirmed.2
J. WILLIAM BRAMMER, JR., Judge
CONCURRING:
JOSEPH W. HOWARD, Presiding Judge
JOHN PELANDER, Chief Judge
2
We decline to consider Garcia’s argument, raised for the first time in his reply brief,
that “[t]he sequential instruction approved in LeBlanc violates” the provisions of A.R.S.
§ 13-115(B). See State v. Ruggiero, 211 Ariz. 262, n. 2, 120 P.3d 690, 695 n.2 (App. 2005).
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