State v. Canion
| Decision Date | 21 December 2000 |
| Docket Number | No. 1 CA-CR 99-0255.,1 CA-CR 99-0255. |
| Citation | 199 Ariz. 227,16 P.3d 788 |
| Parties | STATE of Arizona, Appellee, v. Dennis Wayne CANION, Appellant. |
| Court | Arizona Court of Appeals |
Janet A. Napolitano, Attorney General by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section and David J. Maletta, Assistant Attorney General, Phoenix, Attorneys for Appellee.
Eleanor L. Miller, Phoenix, Attorney for Appellant.
¶ 1 Dennis Wayne Canion appeals his convictions and sentences for murder, aggravated assault, misconduct involving weapons, escape, and solicitation to commit murder. We affirm in part and reverse in part.
¶ 2 On March 6, 1997, Canion was driving a borrowed vehicle when Officer David Madeya pulled him over for speeding and driving with suspended license plates. He could not produce a driver's license, vehicle registration, or proof of insurance. Officer Madeya noticed a knife sheath in the vehicle and asked Canion to step out and move to the rear of the vehicle. In response to Officer Madeya's question whether he was carrying any weapons, Canion eventually admitted he was carrying a gun and a pocket knife. Officer Madeya removed the gun and placed it on the hood of the patrol car. As Officer Madeya attempted to remove the knife from Canion's pocket, Canion began struggling with the officer. Meanwhile, Canion's passenger, Patricia Coburn, exited the vehicle. Officer Madeya told her to get back into the vehicle and she appeared to begin to comply. Canion broke free and attempted to run back to the vehicle, Officer Madeya grabbed him, and Canion hit him several times. As Officer Madeya struggled to control Canion, Coburn got out of the vehicle again, this time with a handgun.
¶ 3 Canion testified that he saw Coburn with the gun and yelled "don't shoot, don't shoot." Officer Madeya testified that Canion yelled "kill him, kill him," though he admitted that he might have heard Canion yell the word "shoot," rather than "kill." In any event, Officer Madeya shot Coburn and she died. Officers later recovered a revolver, cocked and ready to fire, that was lying next to her on the ground where she fell.
¶ 4 A search of Coburn, Canion, and the vehicle revealed seven guns, a wooden mallet, and four knives. Additionally, at the time of the incident, Canion was in violation of his parole for a previous murder conviction, for failing to report to his parole officer, and for leaving a halfway house without permission.
¶ 5 In separate counts, and in the alternative, Canion was charged with felony murder, based on the underlying felony of escape, and first degree premeditated murder. In both murder counts, Coburn was identified as the victim. Canion was also charged in separate counts with aggravated assault against a peace officer engaged in official duties, a class 2 dangerous felony, or in the alternative, attempted murder in the first degree, a class 2 felony. Officer Madeya was alleged as the victim in both counts. In addition, Canion was charged with misconduct involving weapons, a class 4 felony; escape, a class 4 dangerous felony; and solicitation to commit first degree murder, a class 3 dangerous felony.1
¶ 6 The instructions to the jury included instructions on felony murder and premeditated murder. The instructions for premeditated murder included the lesser-included offenses of second degree murder and manslaughter. The trial court rejected defense counsel's request that it instruct the jurors that they could return a verdict on either felony murder or premeditated murder, but not both, and that they could return a verdict on either aggravated assault or attempted murder, but not both. It appears that the instruction the court gave to the jury on aggravated assault was for the class 6 offense of placing a peace officer in fear of imminent injury, rather than the class 2 offense that had been charged. The court provided the jury with guilty verdict forms for all of the crimes charged, including lesser-included offenses, and "not guilty" forms for each count.
¶ 7 The jury returned guilty verdicts for felony murder and for second degree murder. It also found Canion guilty of aggravated assault, but not guilty of attempted murder. In addition, the jury found Canion guilty of misconduct involving weapons, escape, and solicitation to commit second degree murder.
¶ 8 The trial court concluded that the convictions for felony murder and second degree murder "merged," and it sentenced Canion only for the greater offense. It imposed a life sentence, with parole eligibility after serving 25 years for the felony murder conviction; a presumptive ten and one-half year consecutive sentence for the aggravated assault conviction; and presumptive sentences for the weapons misconduct, escape, and solicitation convictions, each not exceeding ten years, to run concurrently with the aggravated assault sentence. The court credited Canion with 750 days of presentence incarceration on the felony murder conviction. Canion timely appealed.
¶ 9 Canion first contends that under the United States Supreme Court's decision in Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991), premeditated murder and felony murder are one offense. He argues that the felony murder count and the premeditated murder count of the indictment were alternative forms of the same offense, and that the jurors were confused because the trial court refused to instruct them properly. He contends that the instructions should have been consistent with the indictment, which charged the counts in the alternative; that is, the jury could find Canion guilty of either felony murder or premeditated murder, or could find him not guilty of either, but could not find him guilty of both. He contends that the jury's guilty verdict for second degree murder impliedly acquitted him of premeditated murder, and must also indicate that it found him not guilty of felony murder. Thus, he argues, he was improperly sentenced for felony murder instead of the second degree murder verdict, and the case must be remanded for re-sentencing.
¶ 10 The State argues that Canion has either invited error or waived the argument absent fundamental error because his attorney failed to object when the verdict was read and because, at the sentencing hearing, he agreed to the trial court's "merger" theory and sentencing on felony murder. It appears that defense counsel reluctantly did so because he had no better resolution than the trial court. We therefore decline to find that defense counsel "invited" the error. Moreover, an illegal sentence can be reversed on appeal despite the lack of an objection. See State v. Whitney, 151 Ariz. 113, 115, 726 P.2d 210, 212 (App.1985)
. We find that Canion has not waived his objection that it was error to sentence him for the first degree murder conviction rather than the second degree murder conviction. We find no error.
¶ 11 The Supreme Court in Schad did not hold, as Canion argues, that the jury's finding of no premeditation would "negat[e] the mental state required for felony murder, as well." Rather, the Supreme Court explained that, "under Arizona law neither premeditation nor the commission of a felony is formally an independent element of first degree murder; they are treated as mere means of satisfying a mens rea element of high culpability." Id. at 639, 111 S.Ct. 2491. Moreover, the Arizona Supreme Court previously has held that a verdict of "not guilty" on a charge of first degree premeditated murder is not inconsistent with a guilty verdict on a charge of felony murder. State v. Smith, 160 Ariz. 507, 513, 774 P.2d 811, 817 (1989). Even if we accept Canion's argument that the jury's verdict of guilty of second degree murder means that it found him not guilty of first degree premeditated murder, it neither nullifies the felony murder guilty verdict nor implies that the jury actually found him innocent of that offense. ¶ 12 Canion next submits that, because the indictment set forth the felony murder and premeditated murder charges "in the alternative," the jury was required to return a guilty verdict on one or the other, or neither, but not both. He contends that allowing the jury to return guilty verdicts on both offenses unfairly allowed the State two opportunities for a first degree murder conviction. Because the jury found him guilty of second degree murder, he argues, the State is "stuck with" that verdict rather than the felony murder guilty verdict.
¶ 13 Although the indictment in this case may have been imprudently worded, by placing the two theories of first degree murder in alternative counts, rather than stating them as alternative theories under the same count, we do not agree that it requires the result Canion urges. Cf. State v. Kelly, 149 Ariz. 115, 116, 716 P.2d 1052, 1053 (App.1986)
(). Essentially, the State charged Canion with one count of premeditated first degree murder and one count of felony murder committed in the course of escape. If properly charged and instructed, a jury would not reach the issue of whether Canion was guilty of second degree murder unless it acquitted him on both theories of first degree murder. Here, the jury found Canion guilty of felony murder. "Extra" verdicts on the lesser-included offenses to the premeditated murder charge do not affect the validity of the unanimous guilty verdict on the felony murder charge. See United States v. Gaddis, 424 U.S. 544, 551, 96 S.Ct. 1023, 47 L.Ed.2d 222 (1976) (White, J., concurring) (...
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