State v. Najera ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
EDUARDO VALADEZ NAJERA, Appellant.
No. 1 CA-CR 20-0289
FILED 10-7-2021
Appeal from the Superior Court in Maricopa County
No. CR2018-122248-001
The Honorable Julie A. LaFave, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Jillian Francis
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Jeffrey L. Force
Counsel for Appellant
STATE v. NAJERA
Decision of the Court
MEMORANDUM DECISION
Judge Brian Y. Furuya delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Michael J. Brown joined.
F U R U Y A, Judge:
¶1 Eduardo Valadez Najera appeals his convictions and
sentences for two counts of aggravated driving under the influence of
intoxicating liquor or drugs (“DUI”), class 4 felonies. He argues the
superior court erroneously modified and gave a flight instruction to the
jury. Given the lack of flight evidence, the instruction was error. However,
because of the magnitude of evidence establishing guilt, it appears beyond
a reasonable doubt that this errant instruction could not have affected the
verdict. Therefore, we affirm Najera’s convictions and sentences.
FACTS AND PROCEDURAL HISTORY
¶2 In May 2018, R.D. was working for Uber and driving a
customer to the airport when he observed a white truck perform a strange
maneuver that drew his attention. As he approached a stoplight, he
looked into this white truck as it pulled up next to him. The truck’s
windows were down, and R.D. saw a male driver and a female passenger.
After the light turned green, the truck side-swiped R.D.’s vehicle.
¶3 The truck did not pull over and R.D. followed it, noting the
license plate while his customer called the police. The truck turned, both
occupants got out of the truck, and the female passenger was picked up
by another vehicle. The male got back into the truck and continued
driving near the scene of the accident. The male then pulled over, exited
the truck, and began walking down the street where the accident had
occurred.
¶4 Police arrived by that time and R.D. pointed down the road
to the male later identified as Najera. A police officer made initial contact
with Najera, who was walking past the officer before being asked to stop.
Najera complied and the officer described Najera as a “happy drunk” and
very cooperative. Najera showed signs of intoxication and he was arrested
on suspicion of DUI and transported to the police station, where he was
interviewed and had a blood sample drawn. This sample indicated
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Decision of the Court
Najera’s blood alcohol concentration was .272 percent. Najera had a
suspended license at the time.
¶5 The State charged Najera with two counts of aggravated
DUI; one count for driving impaired with a suspended license and the
other for driving with a blood alcohol level over the legal limit of .08
percent.
¶6 At trial, Najera’s defense was that the female had been
driving the entire time. However, the defense was unable to secure the
female passenger’s testimony despite a subpoena and the jury received no
evidence of record to that effect. The jury found Najera guilty on both
counts of DUI and that he committed the offenses while on probation.
Najera was sentenced as a category 3 repetitive offender to presumptive
and concurrent terms of ten years in prison. The court granted Najera’s
motion to file a delayed notice of appeal, and we have jurisdiction
pursuant to Arizona Revised Statutes §§ 12-120.21(A)(1), 13-4031, and -
4033(A)(1).
DISCUSSION
¶7 Najera argues the superior court erred by giving the jury the
following modified flight instruction:
In determining whether the state has proved the defendant
guilty beyond reasonable doubt, you may consider any
evidence of the defendant’s flight, together with all the other
evidence in the case. Flight after a crime has been committed
does not, by itself, prove guilt.
¶8 Najera timely objected that the evidence did not support a
flight instruction and that the modification of the instruction was
improper. Najera repeats these arguments on appeal. We review the
court’s decision to issue a flight instruction for an abuse of discretion, but
we review whether that instruction correctly states the law de novo. State
v. Ewer, 250 Ariz. 561, 569, ¶ 26 (App. 2021).
I. Giving a Flight Instruction Was Error.
¶9 A flight instruction should only be given where “the State
presents evidence of flight after a crime from which jurors can infer a
defendant’s consciousness of guilt.” State v. Solis, 236 Ariz. 285, 286, ¶ 7
(App. 2014) (citing State v. Parker, 231 Ariz. 391, 403, ¶ 44 (2013)). While it
is not necessary to show that law enforcement officers were pursuing a
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defendant to show consciousness of guilt, merely leaving the scene of a
crime, without more, is not tantamount to flight. State v. Wilson, 185 Ariz.
254, 257 (App. 1995) (citations omitted). The evidence must be such that
the court can reasonably infer “that the defendant left the scene in a
manner which obviously invites suspicion or announces guilt.” State v.
Weible, 142 Ariz. 113, 116 (1984).
¶10 The court may give a flight instruction if the evidence
“supports a reasonable inference that the flight or attempted flight was
open, such as the result of an immediate pursuit,” or if there is no open
flight, “then the evidence must support the inference that the accused
utilized the element of concealment or attempted concealment.” State v.
Smith, 113 Ariz. 298, 300 (1976). “The absence of any evidence supporting
either of these findings would mean that the giving of an instruction on
flight would be prejudicial error.” Id.
¶11 The State argued that three pieces of evidence support the
flight instruction; first, Najera allegedly continued driving after the
accident, second, Najera left the truck and walked away after the truck
was parked, and third, police asked Najera to stop walking down the
road.
¶12 As to the first piece of evidence, the defense objected that
Najera’s alleged driving after the accident could not be used as evidence
of flight because Najera had not been charged with a hit and run. The
court stated in response, “It’s not so much that [Najera] left the scene of
the accident, it’s that he left the vehicle, which was a component – an
element for the criminal activity” for a DUI. Further, the court also
concluded later in the proceedings that R.D. was in immediate, open
pursuit of Najera and allowed the State to argue accordingly, even though
no evidence appears in this record establishing Najera was aware of R.D.’s
pursuit.
¶13 A flight instruction is only proper when the evidence of
flight leads to an inference of “a consciousness of guilt for the crime
charged.” State v. Bible, 175 Ariz. 549, 592 (1993). Najera was not charged
with a hit and run. R.D. did not testify to Najera’s intoxication and offered
nothing to support that Najera recognized or avoided pursuit following
the accident. To the contrary, R.D. expressed no difficulty in following the
truck after the accident, recording a license plate number, and pointing
directly to Najera down the road once police arrived. As such, Najera’s
and R.D.’s conduct following the accident do not satisfy the requirements
for open pursuit under Smith.
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¶14 As to the second and third pieces of evidence, Najera’s
walking away from the truck or down the street also cannot support a
flight instruction. In Smith, the court issued a flight instruction to the jury
after presentation of evidence that, following an armed robbery, a witness
observed a defendant walking to a nearby parking lot and leaving in a car.
113 Ariz. at 299. Because the evidence only showed that the defendant
“left the scene of the crime,” his conviction was vacated, and the case was
remanded for a new trial. Id. at 299–300. Similarly in Wilson, the court
gave a flight instruction to the jury upon evidence that a defendant got in
a car and drove home to await police after committing an aggravated
assault. 185 Ariz. at 256–57. There was no evidence that the defendant left
in haste or attempted to conceal himself. Id. As such, the Wilson Court
concluded that giving a flight instruction was reversible error requiring a
new trial. Id.
¶15 Here, there was no evidence presented that Najera left
hastily or attempted to conceal himself. To the contrary, Najera was
contacted by the police while walking in the immediate vicinity of the
accident they were called to investigate. Slowly walking away from a
parked vehicle and immediately cooperating with the police is insufficient
evidence to support a flight instruction. There was no evidence that
Najera acted in a way that would obviously invite suspicion or announce
guilt. See Weible, 142 Ariz. at 116. Accordingly, it was error for the court to
give a flight instruction.
II. Modifying The Flight Instruction Was Error.
¶16 Najera argues the court erroneously modified the standard
jury instruction for flight. The purpose of jury instructions is to inform the
jury of the applicable law in understandable terms. Barrett v. Samaritan
Health Servs., Inc., 153 Ariz. 138, 143 (App. 1987). We evaluate jury
instructions “in context and in conjunction with the closing arguments of
counsel.” State v. Johnson, 205 Ariz. 413, 417, ¶ 11 (App. 2003).
¶17 The standard criminal flight instruction reads:
In determining whether the state has proved the defendant
guilty beyond a reasonable doubt, you may consider any
evidence of the defendant’s running away, hiding, or
concealing evidence, together with all the other evidence in the
case. Running away, hiding, or concealing evidence after a crime
has been committed does not by itself prove guilt.
Rev. Ariz. Jury Instr. Stand. Crim. 40 (4th ed. 2018) (emphasis added).
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¶18 While discussing the instruction, the court modified the
language such that the State could discuss Najera’s behavior reasoning
that “there’s no question so far in the testimony that [Najera] left both
incidents.” The court did express “some concern with respect to the
instruction as written about running away, because [Najera] wasn’t
running.” As a result, the court replaced the words “running away,
hiding, or concealing evidence” in the standard instructions with the
single term “flight.” In so doing, the court obscured the purpose of
defining flight under Arizona jurisprudence.
¶19 To reiterate, the primary focus of a flight instruction should
be to allow the jury to appropriately consider conduct that indicates
consciousness of guilt for the crime charged. Bible, 175 Ariz. at 592. As
written, the standard instruction incorporates verbs that clarify those
actions which commonly point toward the inference of consciousness of
guilt.
¶20 Specific to the facts and context surrounding this case, by
modifying the standard language, the court created a circular instruction
that invited jurors to impermissibly consider conduct not relevant to the
actual crimes charged. The potential for confusion is evident from the
State’s use of the instruction in closing argument. The State described
Najera’s conduct following the accident as a “wild goose chase,” saying
that he did not stop, “get out of the vehicle,” or “talk to [R.D.], as a
normal person would do in that situation.” While these statements might
properly point to consciousness of guilt as to hit and run, the actions
described here by the State do not clearly indicate consciousness of guilt
for DUI. Further, the State argued that the evidence showed Najera “tried
to flee,” “avoid detection,” and “avoid coming into contact with police”
by walking away from his parked truck down the road. However, as we
have previously observed, merely departing from the scene of a crime,
without more, does not warrant a flight instruction. Wilson, 185 Ariz. at
257 (citing State v. Celaya, 135 Ariz. 248, 256 (1983)). To the extent that the
modification was used by the State to suggest otherwise, the flight
instruction did not accurately communicate the law to the jury. Therefore,
the modification was error.
III. The Errors Were Harmless.
¶21 While the effect of an erroneous flight instruction had
historically been held prejudicial, see Smith, 113 Ariz. at 299–300; Wilson,
185 Ariz. at 256–57, this court has more recently declined to strictly apply
Smith, opting instead to apply modern harmless error review under
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similar circumstances, see Solis, 236 Ariz. at 287, ¶ 12 (citation omitted); see
also State v. Speers, 209 Ariz. 125, 132–135, ¶¶ 26–38 (App. 2004) (applying
harmless error review to an erroneous flight instruction). Under such
review, an error in giving a flight instruction is harmless if, in review of
the evidence, we are convinced “beyond a reasonable doubt that the error
did not contribute to or affect the verdict.” Solis, 236 Ariz. at 287, ¶ 13
(quoting Bible, 175 Ariz. at 588).
¶22 The State bears the burden under harmless error analysis to
prove beyond a reasonable doubt that the error did not contribute to or
affect the verdict. State v. Henderson, 210 Ariz. 561, 567, ¶ 18 (2005). “The
inquiry is not whether, in a trial that occurred without the error, a guilty
verdict would surely have been rendered, but whether the guilty verdict
actually rendered in this trial was surely unattributable to the error.” State
v. Anthony, 218 Ariz. 439, 446 ¶ 39 (2008) (quoting Bible, 175 Ariz. at 588).
¶23 Najera does not contest that his blood alcohol level was
above the legal limit or that his license was suspended. Rather, Najera
maintained that he was a passenger in the truck, although no evidence
was offered to corroborate that position. To the contrary, in interviews
with police after his arrest, Najera acknowledged feeling impaired while
driving. Also, the State presented corroborating evidence that placed
Najera in the driver’s seat both during the accident and after the female
passenger left the truck. The jury’s reliance on this evidence depended on
the weight and credibility it gave R.D.’s testimony—irrespective of the
flight instruction. See State v. Lehr, 201 Ariz. 509, 517, ¶ 29 (2002)
(“Credibility and weight are for determination by the jury unassisted by
the judge.”). Therefore, the erroneous flight instruction was harmless
because Najera’s convictions did not rely on evidence of Najera’s
consciousness of guilt for the DUI offenses.
¶24 Given the trial evidence and Najera’s own admissions, the
State has shown beyond reasonable doubt that Najera’s convictions are
unattributable to the error. See Solis, 236 Ariz. at 288, ¶ 14; see also
Henderson, 210 Ariz. at 567, ¶ 18. Thus, inclusion of the flight instruction
was harmless. See id.
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STATE v. NAJERA
Decision of the Court
CONCLUSION
¶25 For the foregoing reasons, we affirm Najera’s convictions
and sentences.
AMY M. WOOD • Clerk of the Court
FILED: AA
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