State v. Martin ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
PHILIP JOHN MARTIN, Appellant.
No. 1 CA-CR 20-0585
FILED 12-30-2021
Appeal from the Superior Court in Mohave County
No. S8015CR201201326
The Honorable Billy K. Sipe, Jr., Judge, Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Linley Wilson, Casey Ball
Counsel for Appellee
Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
STATE v. MARTIN
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 Philip John Martin appeals from the superior court’s order
amending his conviction from first to second-degree murder after he was
improperly tried a second time for first-degree murder. He argues that,
because double jeopardy barred his retrial for first-degree murder, he is
entitled to a new trial on second-degree murder as the sole offense. For the
reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 A neighbor was walking towards Martin’s home when
Martin demanded he leave. The neighbor failed to do so, and Martin fatally
shot him.
¶3 The grand jury indicted Martin for first-degree murder. State
v. Martin, 1 CA-CR 13-0839, 2014 WL 7277831, at *1, ¶ 3 (Ariz. App. Dec. 23,
2014) (mem. decision). At trial, Martin admitted to the shooting but claimed
it was legally justified, and the superior court therefore instructed the jury
on self-defense and defense of premises. Id. The jury convicted Martin of
second-degree murder as a lesser-included offense. Id. On appeal, we
reversed and remanded for a new trial because the court failed to instruct
the jury on the crime-prevention defense. Id. at ¶ 1.
¶4 On remand, the jury found Martin guilty of first-degree
murder, and the court imposed a life sentence. State v. Martin, 247 Ariz. 101,
102, ¶ 6 (2019) (Martin II). We affirmed, id., but on review, the Arizona
Supreme Court concluded that Martin’s retrial for first-degree murder
violated his double jeopardy rights. Id. at 106, ¶ 24. The supreme court
therefore vacated our decision and remanded to the superior court to
determine whether to reduce Martin’s conviction to second-degree murder,
or to order a new trial without the jeopardy-barred charge of first-degree
murder. Id. at ¶ 25.
¶5 After considering the parties’ memoranda, the superior court
found Martin was not entitled to a new trial. Instead, the court reasoned
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STATE v. MARTIN
Decision of the Court
that, by convicting Martin of first-degree murder, the jury in the second trial
rejected his justification defenses. Noting that the jury was instructed on
second-degree murder as a lesser-included offense of first-degree murder,
the court concluded that the jurors would have convicted Martin of second-
degree murder had the State not presented them with the barred first-
degree murder charge. Accordingly, the court entered a judgment of guilt
on second-degree murder and resentenced Martin to a presumptive term
of 16 years’ imprisonment. Martin timely appealed and we have
jurisdiction under Arizona Revised Statutes (“A.R.S.”) §§ 12-120.21(A)(1),
13-4031, and -4033(A)(1).
DISCUSSION
¶6 Martin argues the court erred by reducing his conviction to
second-degree murder instead of granting a new trial on that charge. 1 He
contends the improper presence of the first-degree murder charge at the
second trial “changed the landscape of the trial, making it more likely that
[the jurors] convicted rather than continu[ing] to debate his innocence[.]”As
indicative of this “changed landscape,” Martin points out that defense
counsel, to avoid a first-degree murder conviction, stated during closing
arguments that Martin may be guilty of second-degree murder. We reject
Martin’s contention because it implicates a presumption that is not
applicable in this case.
¶7 We review the court’s decision whether to grant a new trial
for an abuse of discretion. State v. Hickle, 133 Ariz. 234, 238 (1982). This
deferential standard of review is especially appropriate here because the
judicial officer who ruled on Martin’s request for a new trial on remand
from the supreme court also presided over the second trial. See State v. Rojas,
247 Ariz. 399, 402, ¶ 11 (App. 2019) (“[W]e generally afford the trial court
1 After briefing was completed in this matter, Martin personally filed
a letter with this court on September 23, 2021, purporting to raise issues of
prosecutorial misconduct and ineffective assistance of trial counsel (“IAC”).
Because Martin is represented by appellate counsel and he has not timely
requested to proceed in propria persona, we do not consider the letter. See
Coleman v. Johnsen, 235 Ariz. 195, 196, ¶ 1 (2014) (recognizing a state
constitutional right to self-representation on appeal but holding that
defendants must give notice of intent to exercise that right by filing a notice
within 30 days of filing a notice of appeal). Moreover, IAC claims may not
be raised on direct appeal. State ex rel. Thomas v. Rayes, 214 Ariz. 411, 415, ¶
20 (2007).
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STATE v. MARTIN
Decision of the Court
wide discretion in its decision to grant a new trial because of its intimate
connection to the trial, including the opportunity to directly observe
testimony.”).
¶8 A defendant who is tried for an offense that is barred by
double jeopardy is not automatically entitled to a new trial if convicted of a
lesser-included offense that is not similarly barred. See Morris v. Mathews,
475 U.S. 237, 245 (1986) (describing holding in Price v. Georgia, 398 U.S. 323(1970)). A presumption arises, however, when the conviction was
“influenced by the trial on [the barred] charge” because the presence of “the
greater offense for which the jury was unwilling to convict also made the
jury less willing to consider the defendant’s innocence on the lesser charge.”
Id.¶9 The presumption of prejudice does not arise in cases such as
here, where the jury is provided the opportunity to acquit on the charged
(albeit jeopardy-barred) offense and convict on a lesser-included offense,
but nonetheless convicts the defendant of the greater offense. Id. The
remedy for such a constitutional violation depends on whether the
defendant can show that “but for the improper inclusion of the jeopardy-
barred charge, the result of the proceeding probably would have been
different.” Id. at 247. A defendant who shows such a “reliable inference of
prejudice” is entitled to a new trial where only the lesser charge is presented
to the factfinder. Id. at 246. If the defendant fails to show prejudice in this
respect, the court may properly impose a conviction for the lesser-included
offense. Id. at 246–47. Thus, to obtain a third trial in this case, Martin was
required to establish that the jury at his second trial would probably not
have returned a guilty verdict had second-degree murder been the only
offense presented.
¶10 The court’s determination that Martin failed to show
prejudice was not an abuse of discretion. As the court noted, and the record
reflects, the jury at Martin’s second trial was properly instructed on first-
degree murder, the lesser-included offense of second-degree murder, and
the justification defenses of self-defense, defense of premises, and crime
prevention. The court also determined that all the evidence admitted at trial
would have been admitted had Martin been tried only on second-degree
murder.
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STATE v. MARTIN
Decision of the Court
¶11 On appeal, Martin does not challenge the court’s findings.2
Indeed, he concedes that evidence of his premeditation—the element that
distinguishes first from second-degree murder, State v. Thompson, 204 Ariz.
471, 478, ¶ 27 n.6 (2003)—would have been admissible to rebut his
justification defenses had he been tried solely on second-degree murder. See
State v. Mincey, 141 Ariz. 425, 435 (1984) (explaining that evidence of
premeditation was admissible when defendant was retried solely for
second-degree murder after his first-degree murder conviction was
vacated). We therefore conclude that the court properly amended Martin’s
conviction from first to second-degree murder without the need to grant
Martin a third trial.
CONCLUSION
¶12 Martin’s conviction and sentence are affirmed.
AMY M. WOOD • Clerk of the Court
FILED: JT
2 Martin argues insufficient evidence supports the jury’s conclusion
that he was not justified in shooting the victim. This argument is waived
because Martin did not raise it when he appealed from his second trial in
this case. See State v. Martin, 1 CA-CR 16-0551, 2018 WL 3031568, (Ariz. App.
June 19, 2018) (mem. decision); State v. Martin, 245 Ariz. 42 (App. 2018)
(vacated by Martin II).
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