State v. Shine ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
LEE PENNELL SHINE, JR., Appellant.
No. 1 CA-CR 15-0453
FILED 7-12-2016
Appeal from the Superior Court in Maricopa County
No. CR2012-005450-002
The Honorable Danielle J. Viola, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Michael J. Dew Attorney at Law, Phoenix
By Michael J. Dew
Counsel for Appellant
STATE v. SHINE
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge Randall M. Howe joined.
J O H N S E N, Judge:
¶1 Lee Pennell Shine, Jr., appeals his convictions and sentences
on one count of conspiracy to commit first-degree murder and one count of
first-degree murder. Counsel for Shine filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297
(1969), advising that after searching the record on appeal, he was unable to
find any arguable ground for reversal. Shine was granted the opportunity
to file a supplemental brief in propria persona, but he has not done so. After
reviewing the entire record, we affirm Shine's convictions and sentences.
¶2 We have jurisdiction of Shine's timely appeal pursuant to
Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
Statutes sections 12-120.21(A)(1) (2016), 13-4031 (2016) and -4033 (2016).1
¶3 Our obligation is to review the entire record for reversible
error. State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). We view the facts
in the light most favorable to sustaining the convictions and resolve all
reasonable inferences against Shine. State v. Guerra, 161 Ariz. 289, 293
(1989). The following evidence was presented at trial.
¶4 On the evening of October 22, 2011, two police officers on
patrol received a call regarding a suspicious vehicle. The officers
responded and found a gunshot victim in the driver's seat, the engine
running. The man eventually died from the gunshot wound.
¶5 After obtaining a search warrant for the vehicle, officers
seized the victim's cellular phone. The phone's call and message history
revealed numerous contacts from a single number during the hours
preceding the homicide. A detective traced the phone number to Joe Jasso's
mother. During an interview, Jasso inculpated himself, Queinten
McDowell, William McIntyre and Shine in a conspiracy to murder the
1 Absent material revision after the date of an alleged offense, we cite
a statute's current version.
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STATE v. SHINE
Decision of the Court
victim. Interviewed later, McDowell likewise stated that he and Jasso
conspired with McIntyre and Shine to murder the victim.
¶6 McIntyre shared an apartment with Shine in October 2011. At
the time, neither was employed and they spent much time playing video
games and using drugs, primarily marijuana. About three weeks before the
murder, McIntyre met Jasso and McDowell outside his apartment complex,
where they approached him and asked for help obtaining marijuana.
During the ensuing conversation, McIntyre invited Jasso and McDowell to
return with him to the apartment. Jasso and McDowell then began living
at the apartment, with the four men spending their days playing video
games and doing drugs.
¶7 Before long, the men ran low on money and drugs, and Shine
offered to sell his laptop to acquire both. Jasso volunteered that he knew
someone who would be willing to buy it, and contacted the victim. Jasso
and McDowell then met with the victim and traded Shine's laptop for
marijuana. At some point later, Shine expressed displeasure that Jasso and
McDowell had not received more marijuana in the exchange, believing he
had been shorted in the transaction. To "get back" at the victim, Shine
suggested they rob him. He also expressed a desire to fight the victim.
¶8 Initially, McIntyre viewed Shine's threats to harm the victim
as a joke, but the tone of the conversations became serious as the men
discussed different scenarios for robbing the victim. Eventually the
conversations adopted an even darker tone, when Shine suggested he could
kill the victim by stabbing him with a knife. Jasso rebuffed Shine's idea,
concluding it was unworkable because the victim knew only Jasso and
McDowell and would never allow Shine within stabbing distance. Instead,
Jasso and McDowell decided they would attack the victim.
¶9 The day before the murder, Shine left the apartment to visit
his grandparents. McIntyre then provided Jasso and McDowell with a gun
and Jasso contacted the victim and arranged a meeting under the pretense
of purchasing marijuana. McIntyre waited at the apartment while Jasso and
McDowell met the victim.
¶10 When Jasso and McDowell returned to the apartment, Jasso
was covered in blood. Jasso and McDowell "excited[ly]" told McIntyre that
they had met with the victim in his car and that McDowell had stepped out
of the vehicle, then shot the victim through the open driver's side window.
Jasso quickly grabbed all of the money and drugs he could find before
jumping out of the car. After recounting the murder, McDowell returned
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STATE v. SHINE
Decision of the Court
the gun to McIntyre, but asked to keep the expended shell casing as a
"trophy."
¶11 During the following two days, the men consumed most of
the stolen drugs. When Shine returned to the apartment two days after the
shooting, the men informed him that they had killed the victim and Shine
responded "All right. Where is my money?" Shine was high when he
returned and seemed indifferent. About a week later, McIntyre moved out
of the apartment and Shine and McIntyre no longer associated with each
other or with Jasso and McDowell.
¶12 After the other men implicated Shine, officers brought him in
for questioning. At the outset, the detective advised Shine of his Miranda
rights and Shine confirmed he understood them. See Miranda v. Arizona,
384 U.S. 436 (1966). Shine then told the detective that he had been visiting
his grandparents the weekend of the homicide and "didn't do anything." In
response to questioning, Shine acknowledged that he had made some
statements about harming the victim, but claimed he was high at the time
and had not been "serious." He also admitted that, before he left for the
weekend, the other men made plans to kill the victim, but he claimed he
"honestly thought" they would not go through with it and would just "get
the weed" and return to the apartment. When directly asked whether he
knew the men would kill the victim, however, Shine answered "yes."
Indeed, Shine stated that the other men offered to get his money and kill
the victim for him. When the detective asked Shine whether he accepted
their offer, Shine responded, "Yes, I did."
¶13 After Shine's arrest, authorities recovered a letter that had
been intercepted from his cellmate. Shine had requested that the letter be
delivered to McIntyre. In the letter, Shine informed McIntyre: "[W]e need
to have the same story just you and me . . . if the cops find out . . . were [sic]
f*****. We need a story that we need to stick to."2 The letter then offered a
story for McIntyre to tell the police and also suggested a possible alibi.
¶14 After a 24-day trial, a jury found Shine guilty of first-degree
murder and conspiracy to commit first-degree murder. The court
sentenced Shine to concurrent terms of life imprisonment with the
2 Pursuant to the superior court's ruling, portions of the letter referring
to McDowell, Shine's codefendant at trial, were redacted. The other co-
conspirators entered guilty pleas.
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STATE v. SHINE
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possibility of parole after 25 years on both counts, with 1,263 days'
presentence incarceration credit. This timely appeal followed.
¶15 We have searched the entire record for reversible error and
have found none. All of the proceedings were conducted in accordance
with the Arizona Rules of Criminal Procedure. The record shows Shine was
present for all critical pretrial and trial proceedings; his counsel waived his
presence for a handful of non-critical events. Shine was represented by
counsel in all pretrial proceedings and throughout the trial.
¶16 The superior court did not conduct a voluntariness hearing;
however, neither Shine nor the evidence raised a question about the
voluntariness of Shine's statements. See State v. Smith, 114 Ariz. 415, 419
(1977); State v. Finn, 111 Ariz. 271, 275 (1974). Given the possible sentences
to be imposed on the crimes with which Shine was charged, the court
properly empaneled 16 jurors. The court properly instructed the jury on
the elements of the charges, mere presence, the presumption of innocence,
reasonable doubt, the State's burden of proof and the necessity of a
unanimous verdict. The State presented both direct and circumstantial
evidence sufficient to allow the jury to convict.
¶17 Shine had an opportunity to speak before sentencing. The
court received and considered a presentence report, addressed its contents
during the sentencing hearing and imposed legal sentences for the crimes
of which Shine was convicted. Accordingly, we affirm Shine's convictions
and sentences.
¶18 Upon the filing of this decision, counsel shall inform Shine of
the status of the appeal and his options. Defense counsel has no further
obligations unless, upon review, counsel finds an issue appropriate for
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submission to the Arizona Supreme Court by petition for review. See State
v. Shattuck, 140 Ariz. 582, 584-85 (1984). Shine shall have 30 days from the
date of this decision to proceed, if he so desires, with a pro per motion for
reconsideration or a petition for review.
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