State v. Booker

• Decision Date: 12 September 2002
• Docket Number: No. 2 CA-CR 2000-0517.,2 CA-CR 2000-0517.
• Citation: 203 Ariz. 284,53 P.3d 635
• Parties: The STATE of Arizona, Appellee, v. Bryan Lamar BOOKER, Appellant.
• Court: Arizona Court of Appeals

53 P.3d 635

203 Ariz. 284

The STATE of Arizona, Appellee, v. Bryan Lamar BOOKER, Appellant.

No. -0517.

Court of Appeals of Arizona, Division 2, Department B.

September 12, 2002.

Janet Napolitano, Arizona Attorney General, By Randall M. Howe and Diane M. Acosta, Tucson, for Appellee.

Isabel G. Garcia, Pima County Legal Defender, By Robb P. Holmes, Tucson, for Appellant.

OPINION

PELANDER, J.

¶ 1 After a second trial, a jury found appellant Bryan Booker guilty of premeditated first-degree murder and drive-by shooting.¹ The trial court sentenced him to concurrent terms of life imprisonment for the murder and 10.5 years for the drive-by shooting. After finding that Booker had committed the offenses while on release pending another felony charge, the trial court also enhanced both sentences by adding two years to each pursuant to A.R.S. § 13-604(R). We affirm Booker's convictions and his underlying, pre-enhancement sentences. But, because we conclude he was constitutionally entitled to have a jury determine his release status for sentence enhancement purposes, we vacate the sentence enhancements and remand the case for further proceedings on that issue.

BACKGROUND

¶ 2 We view the facts and reasonable inferences therefrom in the light most favorable to sustaining the verdicts. State v. Nihiser, 191 Ariz. 199, 201, 953 P.2d 1252, 1254 (App.1997). In 1997, Booker and a passenger drove to a convenience store. While there, Booker had an argument with the victim. Booker returned to the car, reached for something under the seat, then got into the car and shut the door. He backed the car out of the parking space, stopped for approximately fifteen seconds, and slowly drove toward where the victim was standing. As he neared the victim, Booker stopped the car. Five gunshots were fired from the car's passenger window, one of which struck and killed the victim. One witness testified that she had seen Booker fire the shots.

DISCUSSION

A. Premeditation Instruction

¶ 3 The state prosecuted Booker under a theory of premeditated first-degree murder. See A.R.S. § 13-1105(A)(1). The trial court instructed the jury on first- and second-degree murder and defined premeditation as follows:

"Premeditation" means that the defendant's intention or knowledge existed before the killing long enough to permit reflection. However, the reflection differs from the intent or knowledge that conduct will cause death. It may be as instantaneous as successive thoughts in the mind, and it may be proven by circumstantial evidence. It is this period of reflection, regardless of its length, which distinguishes first degree murder from intentional or knowing second degree murder. An act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion.

See Revised Arizona Jury Instructions (Criminal) 11.051 (2000) (RAJI). As he argued below, Booker contends that instruction eliminated the distinction between first- and second-degree murder by defining premeditation as a period long enough to permit reflection, regardless of whether reflection actually occurred, and by stating that the period "may be as instantaneous as successive thoughts in the mind." In particular, he argues that formation of the intent or knowledge that one's conduct will cause death always will be followed by a period of time sufficient for a successive thought. Thus, his argument continues, there is no meaningful distinction between first- and second-degree murder. We review de novo whether a jury instruction correctly stated the law. State v. Morales, 198 Ariz. 372, ¶ 4, 10 P.3d 630, ¶ 4 (App.2000).

¶ 4 We first note that the instruction here arguably required actual reflection and, therefore, does not support Booker's contention. Although the instruction referred to premeditation as a period of time sufficient to "permit reflection," it also stated that "the reflection differs from the intent or knowledge that conduct will cause death" and that "[i]t is this period of reflection, regardless of its length, which distinguishes first degree murder from intentional or knowing second degree murder." (Emphasis added.) See State v. Ramirez, 190 Ariz. 65, 72, 945 P.2d 376, 383 (App.1997)

(noting that "period of reflection" language supported interpretation of premeditation that required actual reflection), see also id. at 73, 945 P.2d at 384 (Ryan, J., dissenting) (language in instruction that required a "`period of reflection' ... benefitted Appellant because it required actual reflection"). The prosecutor, however, argued that premeditation is "a period long enough to permit reflection" and that "[i]t's instantaneous." Accordingly, we address the merits of Booker's argument. See id. at 67, 72, 945 P.2d at 378, 383 (prosecutor's argument contributed to error arising from ambiguous instruction).

¶ 5 With the exception of felony murder and the intentional or knowing killing of a law enforcement officer acting in the line of duty, § 13-1105(A)(2), (A)(3), premeditation has always been the line of demarcation in Arizona between first- and second-degree murder, at least with respect to a murder committed intentionally or knowingly.²See Ariz. Penal Code § 173 (1901); Ariz. Rev. Code § 4584 (1928); Ariz.Code Ann. § 43-2902 (1939); former A.R.S. § 13-452 (1956); § 13-1105(A)(1). See also A.R.S. § 13-1104(A) (second-degree murder may be committed intentionally, knowingly, or recklessly, but must be "without premeditation"); State v. Walton, 133 Ariz. 282, 290, 650 P.2d 1264, 1272 (App.1982) ("[T]he legislature intended that there be two grades of murder with premeditation as the distinguishing factor between first and second degree murder."). The concept of premeditation, however, has evolved.

¶ 6 Before 1978, the legislature had not specifically defined premeditation. Ariz. Penal Code § 173 (1901); Ariz. Rev.Code § 4584 (1928); Ariz.Code Ann. § 43-2902 (1939); former § 13-452 (1956). In the absence of a statutory definition, our supreme court determined that premeditation required thought or reflection. Moore v. State, 65 Ariz. 70, 82-83, 174 P.2d 282, 289-90 (1946); Macias v. State, 36 Ariz. 140, 149, 283 P. 711, 715 (1929). The court also concluded that such reflection could be "as instantaneous as the consecutive thoughts of the human mind." State v. Eisenstein, 72 Ariz. 320, 333, 235 P.2d 1011, 1020 (1951), overruled on other grounds by State v. Hunter, 136 Ariz. 45, 50, 664 P.2d 195, 200 (1983)

. But the court cautioned that jury instructions should not suggest that a homicide could be both premeditated and impulsive. Moore, 65 Ariz. at 82, 174 P.2d at 290; see also State v. Guerra, 161 Ariz. 289, 294, 778 P.2d 1185, 1190 (1989).

¶ 7 In 1978, the legislature enacted former A.R.S. § 13-1101(1),³ which stated:

"Premeditation" means that 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 a length of time to permit reflection. An act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion.

1978 Ariz. Sess. Laws, ch. 201, § 125. Our supreme court has not specifically addressed whether that statutory definition reduced premeditation to a period of time in which reflection can, but need not, occur. It has, however, employed definitions of premeditation that support both views. Compare State v. Murray, 184 Ariz. 9, 32, 906 P.2d 542, 565 (1995)

(defining premeditation as a "length of time permitting reflection"); State v. Zmich, 160 Ariz. 108, 111, 770 P.2d 776, 779 (1989) (same); State v. Rankovich, 159 Ariz. 116, 122, 765 P.2d 518, 524 (1988) (same); State v. Hutton, 143 Ariz. 386, 389, 694 P.2d 216, 219 (1985) (same); State v. Neal, 143 Ariz. 93, 97, 692 P.2d 272, 276 (1984) (same), with State v. Willoughby, 181 Ariz. 530, 539, 892 P.2d 1319, 1328 (1995) ("Premeditation is established by evidence of a plan to murder formed after deliberation and reflection."); State v. Vickers (Vickers II), 159 Ariz. 532, 541, 768 P.2d 1177, 1186 (1989) (same); State v. Kreps, 146 Ariz. 446, 449, 706 P.2d 1213, 1216 (1985) (same); State v. Vickers (Vickers I), 129 Ariz. 506, 513, 633 P.2d 315, 322 (1981) (same). Despite those apparent discrepancies in our supreme court's post-1978 case law on whether premeditation necessarily requires some reflection, the court consistently has retained the notion that premeditation can occur as quickly as "successive thoughts." See Zmich; Vickers II; see also State v. Spears, 184 Ariz. 277, 289, 908 P.2d 1062, 1074 (1996); State v. Gulbrandson, 184 Ariz. 46, 65, 906 P.2d 579, 598 (1995); Kreps, 146 Ariz. at 449,

706 P.2d at 1216; Hutton, 143 Ariz. at 389,

694 P.2d at 219.

¶ 8 In Ramirez, Division One of this court concluded that an act cannot be "both impulsive and premeditated" and that "[d]efining premeditation as a length of time (which can be instantaneous as successive thoughts in the mind) obliterates any meaningful distinction between first and second degree murder—other than the penalties." 190 Ariz. at 68, 69,945 P.2d at 379, 380. To maintain the distinction, the court construed the statutory definition of premeditation to require "actual reflection." Id. at 69, 70, 945 P.2d at 380, 381. The court further noted that a jury instruction stating that reflection may occur as quickly as successive thoughts must be balanced by the "instant effect" language of the last sentence in former § 13-1101(1): "An act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion." Id. at 68, 71, 945 P.2d at 379, 382. That language was omitted from the jury instruction in Ramirez, id. at 67, 945 P.2d at 378, but was included in the instruction here. See ¶ 3, supra.

¶ 9 In State v. Haley, 194 Ariz. 123, ¶ 10, 978 P.2d 100, ¶ 10 (App.1998), this court concluded that former § 13-1101(1) was unambiguous and, therefore, required no statutory construction....