State of Arizona v. Michelle D. Sprang

FILED BY CLERK
IN THE COURT OF APPEALS FEB 14 2011
STATE OF ARIZONA
DIVISION TWO COURT OF APPEALS
DIVISION TWO
THE STATE OF ARIZONA, ) 2 CA-CR 2009-0172
) DEPARTMENT A
Appellee, )
) OPINION
v. )
)
MICHELLE D. SPRANG, )
)
Appellant. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR20081301
Honorable Deborah Bernini, Judge
VACATED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani and Alan L. Amann Tucson
Attorneys for Appellee
Isabel G. Garcia, Pima County Legal Defender
By Scott A. Martin Tucson
Attorneys for Appellant
H O W A R D, Chief Judge.
¶1 Following a jury trial, appellant Michelle Sprang was convicted of second-
degree murder and sentenced to a mitigated prison term of ten years. On appeal, Sprang
argues the trial court erred by instructing the jury on the lesser-included offense of
second-degree murder and by denying her motion for a new trial. For the reasons that
follow, we vacate Sprang‟s conviction and sentence.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the verdict.
State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). Michelle Sprang
and the victim, A., were seen together at a hotel in Tucson. Later, Sprang was seen
loading items into her car and leaving the hotel. She returned shortly thereafter, left
again, and no one saw her return. The following morning, a motel employee saw blood
and something large stuffed under the bed. She called the police, who later found the
victim‟s body under the bed wrapped in a comforter. The victim had been strangled and
hit over the head with a heavy object.
¶3 Sprang eventually was charged with first-degree murder. Over her
objection, and with no specific request from the prosecutor, the trial court instructed the
jury on the lesser-included offense of second-degree murder. The jury found Sprang not
guilty of first-degree murder but, as noted above, guilty of second-degree murder.
Sprang filed a motion for a new trial, which the court denied, and then brought this
appeal.
Second-Degree Murder Instruction
¶4 Sprang first argues the trial court erred by instructing the jury on second-
degree murder because she had objected to the instruction, the state had not specifically
requested it, and the court, therefore, did not have discretion to give it. See State v.
2
Krone, 182 Ariz. 319, 323, 897 P.2d 621, 625 (1995); State v. Rodriguez, 186 Ariz. 240,
249, 921 P.2d 643, 652 (1996). She did not, however, object on this ground below.
“And an objection on one ground does not preserve the issue [for appeal] on another
ground.” State v. Lopez, 217 Ariz. 433, ¶ 4, 175 P.3d 682, 683 (App. 2008). Therefore,
Sprang has forfeited the right to seek relief for all but fundamental, prejudicial error. See
State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005). Furthermore,
because she does not argue on appeal that the error is fundamental, and because we find
no error that can be so characterized, the argument is waived. See State v. Moreno-
Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008) (fundamental error
argument waived on appeal); State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650
(App. 2007) (court will not ignore fundamental error if found); see also State v. Govan,
154 Ariz. 611, 614-15, 744 P.2d 712, 715-16 (App. 1987) (issue on appeal regarding
instruction on lesser-included offense waived when defendant objected to instruction
below on different ground).
¶5 Sprang further contends the second-degree murder instruction was
improper because the evidence did not support it. This ground was raised below, and we
review for an abuse of discretion the trial court‟s decision to give a particular jury
instruction. State v. Johnson, 205 Ariz. 413, ¶ 10, 72 P.3d 343, 347 (App. 2003). A trial
court abuses its discretion when it commits an error of law. State v. West, 224 Ariz. 575,
¶ 8, 233 P.3d 1154, 1156 (App. 2010).
3
¶6 Second-degree murder is a lesser-included offense of premeditated first-
degree murder, the difference between the two being premeditation. See State v. Van
Adams, 194 Ariz. 408, ¶ 11, 984 P.2d 16, 21-22 (1999). An instruction on second-degree
murder is only appropriate when “a reasonable construction of the evidence . . . tend[s] to
show a lack of premeditation.” State v. Whittle, 156 Ariz. 400, 404, 752 P.2d 489, 493
(App. 1985). An act is premeditated when
the defendant acts with either the intention or the knowledge
that he will kill another human being, when such intention or
knowledge precedes the killing by any length of time to
permit reflection. Proof of actual reflection is not required,
but an act is not done with premeditation if it is the instant
effect of a sudden quarrel or heat of passion.
A.R.S. § 13-1101(1). Actual reflection is required, but the proof may be circumstantial.
State v. Thompson, 204 Ariz. 471, ¶ 31, 65 P.3d 420, 428 (2003).
¶7 A trial court should provide an instruction on a lesser-included offense only
if the evidence supports it. State v. Jackson, 186 Ariz. 20, 27, 918 P.2d 1038, 1045
(1996). “„To determine whether there is sufficient evidence to require the giving of a
lesser[-]included offense instruction, the test is whether the jury could rationally fail to
find the distinguishing element of the greater offense.‟” Id., quoting Krone, 182 Ariz. at
323, 897 P.2d at 625. Thus, in considering instructions on a lesser-included offense of
premeditated first-degree murder, “[i]f a jury could rationally conclude that premeditation
was lacking, a second[-]degree murder instruction would be needed.” Krone, 182 Ariz.
at 323, 897 P.2d at 625.
4
¶8 A defendant generally is entitled to an instruction on a lesser-included
offense if it is supported by the evidence. State v. Wall, 212 Ariz. 1, ¶ 17, 126 P.3d 148,
151 (2006). And this court “defer[s] to the trial judge‟s assessment of the evidence.” Id.
¶ 23. However, when a “defendant‟s theory of the case denies all involvement in the
killing, and no evidence provides a basis for a second[-]degree murder conviction,” such
an instruction should not be given. State v. Salazar, 173 Ariz. 399, 408, 844 P.2d 566,
575 (1992). The issue here, therefore, is whether the evidence tends to show that the
murder was premeditated or whether a jury could conclude that evidence demonstrated
premeditation was lacking due to the circumstances themselves or “the instant effect of a
sudden quarrel or heat of passion.” See § 13-1101(1).
¶9 In State v. Landrigan, 176 Ariz. 1, 6, 859 P.2d 111, 116 (1993), our
supreme court held that the trial court‟s failure to give an instruction on second-degree
murder was not error because the instruction was not supported by the evidence.
Landrigan had been convicted of the first-degree felony murder of a victim who had
suffered blows to the head and had then been strangled. Id. at 3-4, 859 P.2d at 113-14.
Landrigan asserted on appeal that an instruction on second-degree murder should have
been given because his mother‟s testimony about injuries he reported in a telephone call
to her could have led the jury to conclude that he had “killed the victim in response „upon
a sudden quarrel or heat of passion.‟” Id. at 6, 859 P.2d at 116. Though the court noted
that second-degree murder is not a lesser-included offense of felony murder, it went on to
evaluate whether the evidence warranted the instruction anyway. Id. at 5-6, 859 P.2d at
5
115-16. And the court stated that, even viewing his mother‟s testimony in a light most
favorable to Landrigan, the evidence as a whole was insufficient to warrant an instruction
on second-degree murder. Id.¶10 In considering whether to instruct the jury on second-degree murder, the
trial court here, prior to hearing all the evidence and without commenting on specific
evidence, stated:1
I think as a matter of course that under those types of facts
and the circumstantial evidence of what may have happened
in that room that the jury could easily determine there was
not evidence of premeditation, not be able to come to a
unanimous vote on premeditation and elect to convict your
client of second[-]degree [murder] if they feel there‟s even
enough evidence to convict her of anything.
At the close of the state‟s case, the court reiterated that it would instruct the jury on
second-degree murder over Sprang‟s objection.
¶11 Even viewing the evidence here in the light most favorable to upholding the
conviction, see Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d at 34, it shows only
premeditation, see § 13-1101(1). While lying face up on the bed, the victim received a
forceful blow to the head from what appears to have been the lid to a toilet tank, which
first had to be retrieved from the bathroom. And the forensic pathologist testified that the
victim was not strangled in the same position on the bed but rather had to have been
upright or lying on the bed face down. Regardless of the order in which the acts were
1
The trial court also indicated it believed it had a statutory duty to instruct on the
lesser-included offenses. We note, however, there is no statutory duty to instruct a jury
on lesser-included offenses in every case.
6
committed, Sprang would have had to move the victim prior to completing the second
act. The forensic pathologist further stated that “[a] lot of force was applied around the
[victim‟s] neck” during the asphyxiation, which could have resulted in “a few minutes of
struggle.” Cf. State v. Ellison, 213 Ariz. 116, ¶ 70, 140 P.3d 899, 917 (2006) (evidence
that suffocation takes several minutes indicative of premeditation). Further, these two
different attempted methods show planning or at least reflection, especially given that the
lid to the toilet tank was located in a different room from where the killing had occurred.
¶12 Additionally, no evidence would support a conclusion that the victim had
been killed as a result of “the instant effect of a sudden quarrel or heat of passion.” See
§ 13-1101(1). No one testified that Sprang and the victim had argued or that loud
shouting or the sounds of a struggle had been heard coming from the motel room.
Indeed, two witnesses who had been in the area testified they did not hear any struggle or
yelling. Finally, Sprang denied all involvement in the murder. Cf. Wall, 212 Ariz. 1,
¶ 29, 126 P.3d at 153 (when defendant asserts an “all-or-nothing” defense, the record
usually will not support the giving of a lesser-included offense instruction).
¶13 As a practical matter, we recognize that a jury could disregard the fact the
evidence only supported first-degree murder and decide to convict of second-degree
murder, as it in fact did. See State v. Paredes-Solano, 223 Ariz. 284, ¶ 26, 222 P.3d 900,
908 (App. 2009) (jury has “well-established” nullification power). But, as a matter of
law, the evidence was insufficient to support instructing the jury on the lesser charge.
See Landrigan, 176 Ariz. at 6, 859 P.2d at 116; see also Jackson, 186 Ariz. at 27, 918
7
P.2d at 1045 (second-degree murder instruction not warranted when record does not
support finding of lack of premeditation); State v. Murray, 184 Ariz. 9, 34, 906 P.2d 542,
567 (1995) (second-degree murder instruction not warranted because, given evidence,
“[t]he only inference that a jury rationally could have drawn was that defendants
premeditated”); Salazar, 173 Ariz. at 408, 844 P.2d at 575 (“Because defendant‟s theory
of the case denies all involvement in the killing, and no evidence provides a basis for a
second[-]degree murder conviction, the instruction was properly refused.”).
¶14 The state contends that if we find the evidence did not warrant this
instruction, the decision “would effectively turn lack of premeditation into an element of
second-degree murder.” But premeditation is an element of first-degree murder which
the state is required to prove. A.R.S. § 13-1105(A)(1). And our supreme court has stated
specifically that, “[f]or a second[-]degree murder instruction to be warranted, a jury
would have to rationally conclude that premeditation was lacking.” Jackson, 186 Ariz. at
27, 918 P.2d at 1045; see also Krone, 182 Ariz. at 323, 897 P.2d at 625. Thus, we find
no merit in the distinction the state attempts to make. We conclude the trial court
committed an error of law and, therefore, abused its discretion because no evidence
warranted an instruction on second-degree murder.
¶15 The state further asserts that any error in giving the instruction was
harmless because, if evidence only established first-degree murder, the erroneous
instruction on second-degree murder benefitted Sprang by allowing the jury to convict
her of a lesser offense. We “„will not reverse a conviction if an error is clearly
8
harmless.‟” State v. Green, 200 Ariz. 496, ¶ 21, 29 P.3d 271, 276 (2001), quoting State v.
Doerr, 193 Ariz. 56, ¶ 33, 969 P.2d 1168, 1176 (1998). In criminal cases, we find an
error “is harmless if we can say, beyond a reasonable doubt, that the error did not
contribute to or affect the verdict.” State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152,
1191 (1993); see also State v. King, 599 Ariz. Adv. Rep. 7, ¶ 29 (Ct. App. Jan. 14, 2011)
(applying harmless error standard to error in jury instructions and verdict forms). We do
not examine “„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.‟” Bible, 175 Ariz. at 588, 858 P.2d at 1191,
quoting Sullivan v. Louisiana, 508 U.S. 275, 279 (1993). “We must be confident beyond
a reasonable doubt that the error had no influence on the jury‟s judgment.” Id.¶16 The state‟s argument has some basis. By convicting Sprang of second-
degree murder, the jury necessarily rejected Sprang‟s sole defense that she had not
murdered A. And being convicted of second-degree murder lowered the range of
sentences available, a circumstance favorable to Sprang.
¶17 Nevertheless, although the evidence showed that someone had committed
first-degree murder, there was not overwhelming evidence that Sprang had committed it.
Because the evidence only supported a first-degree murder conviction, the second-degree
verdict could have been a compromise. If the second-degree murder instruction had not
been given erroneously, the jury would have had to choose whether to convict or acquit
her of first-degree murder. The jury could have acquitted Sprang of the first-degree
9
murder charge, as it did, or been unable to reach a verdict. And given that Sprang was
convicted on the charge which we find was included erroneously, we simply cannot find
that the guilty verdict here was unattributable to the error. See id.; see also State v.
Arnold, 404 S.E.2d 822, 830 (N.C. 1991) (erroneously giving second-degree murder
instruction when evidence only supported first-degree not harmless because “[h]ad not
the inviting verdict of murder in the second degree been available to the jury, and its
choice limited to guilty of murder in the first degree or not guilty, the verdict may well
have been one of not guilty”); cf. Price v. Georgia, 398 U.S. 323, 331 (1970) (“Further,
and perhaps of more importance, we cannot determine whether or not the murder charge
against petitioner induced the jury to find him guilty of the less serious offense of
voluntary manslaughter rather than to continue to debate his innocence.”).
¶18 The state relies on numerous cases from other jurisdictions, most of which
deal with juries‟ verdicts of voluntary manslaughter when the evidence only supported
second-degree murder. See, e.g., People v. Lee, 971 P.2d 1001, 1002-03 (Cal. 1999). In
that situation, insufficient evidence of adequate provocation establishes that the jury
found all of the factors of second-degree murder and then an additional incorrect factor.
See, e.g., id. And, as we have addressed, Arizona‟s definition of second-degree murder
does not require an additional element to first-degree murder. See A.R.S. §§ 13-1104,
13-1105. The state further relies on older cases which found harmless error solely
because the conviction was for a lesser offense; although the older cases have not been
overruled, newer cases in the same jurisdictions do not follow the same reasoning.
10
Compare State v. Yargas, 211 P. 121, 122-23 (Kan. 1922) (error instructing on second-
degree murder, but defendant benefitted because not convicted of first-degree murder),
with State v. Harris, 998 P.2d 524, 529 (Kan. Ct. App. 2000) (finding harmless error
because all elements of second-degree murder present and “sole distinction between
intentional second-degree murder and voluntary manslaughter in this case was the
presence of mitigating circumstances”). These cases are inapposite.
¶19 Sprang finally argues that, should we vacate the conviction and sentence,
double jeopardy would prevent the state from retrying her for second-degree murder. But
the Supreme Court has held that when a defendant is convicted of a lesser-included
offense that is later reversed, the state may elect to retry the defendant for that lesser-
included offense. Price, 398 U.S. at 326-27. And Sprang has not directed us to, nor have
we found any Arizona statute or case law that requires a different result under these
circumstances. Further, “[t]he double jeopardy protections extended by the Arizona
Constitution are coextensive with those provided by its federal counterpart.” Lemke v.
Rayes, 213 Ariz. 232, n.2, 141 P.3d 407, 411 n.2 (App. 2006). Therefore, although it is
clear that Sprang cannot be retried for first-degree murder, see Green v. United States,
355 U.S. 184, 189-91 (1957), she can be retried for second-degree murder, see Price, 398
U.S. at 326-27.
11
Conclusion
¶20 Because we conclude the trial court erred in instructing the jury on second-
degree murder, we vacate Sprang‟s conviction and sentence. Consequently, we need not
address her remaining arguments.
/s/ Joseph W. Howard
JOSEPH W. HOWARD, Chief Judge
CONCURRING:
/s/ J. William Brammer, Jr.
J. WILLIAM BRAMMER, JR., Presiding Judge
/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge
12