State v. Fernandez, 1 CA-CR 05-1136.

CourtCourt of Appeals of Arizona
Citation216 Ariz. 545,169 P.3d 641
Docket NumberNo. 1 CA-CR 05-1136.,1 CA-CR 05-1136.
PartiesSTATE of Arizona, Appellee, v. David Charles FERNANDEZ, III, Appellant.
Decision Date18 October 2007
169 P.3d 641
216 Ariz. 545
STATE of Arizona, Appellee,
David Charles FERNANDEZ, III, Appellant.
No. 1 CA-CR 05-1136.
Court of Appeals of Arizona, Division 1, Department E.
October 18, 2007.

[169 P.3d 643]

Terry Goddard, Arizona Attorney General, by Randall M. Howe, Chief Counsel, Criminal Appeals Section, and Diane L. Hunt, Assistant Attorney General, Tucson, Attorneys for Appellee.

Dodge Anderson Mableson Steiner Jones & Horowitz, Ltd., by Jess A. Lorona, and Kesha A. Hodge, Phoenix, Attorneys for Appellant.


BROWN, Judge.

¶ 1 Defendant David Charles Fernandez III appeals his convictions and sentences on one count of first-degree murder and ten counts of attempted first-degree murder. Fernandez raises the following arguments: 1) the trial court abused its discretion and coerced the jury into reaching a verdict by ordering supplemental closing argument on premeditation; 2) the trial court erred as a matter of law in allowing the jury to determine whether offenses committed against several children under the age of fifteen were "dangerous crimes against children";1 and 3) the trial court abused its discretion by refusing to instruct the jury on aggravated assault as a lesser-included offense of attempted first-degree murder.2 For the following reasons, we affirm his convictions, but remand in part for resentencing.


¶ 2 Shortly before midnight on January 4, 2002, after drinking alcohol, smoking marijuana, and ingesting mushrooms laced with drugs, Fernandez started arguing with his girlfriend. He banged her head several times against a doorway, in full view of two children and several teenagers gathered on the balcony of a nearby second-story apartment. The two children lived at the apartment, and frequently "hung out" with their seventeen-year-old brother and his friends on the balcony, which was lit by a porch light and a nearby street lamp, and furnished with a couch. That night, someone on the balcony called the attention of the others to Fernandez' abuse. After the argument, Fernandez' girlfriend walked back to the apartment she shared with Fernandez, which was located a few doors down from where the altercation had occurred. Fernandez followed her into the apartment.

¶ 3 Between five and twenty minutes later, Fernandez returned to the area carrying an AK-47 rifle, and after saying, "what's up cuz" several times, and receiving a like answer, fired numerous rounds toward the group on the balcony. One shot killed the eleven-year-old boy who was leaning against the railing, and another shot paralyzed his fourteen-year-old sister, who had turned to go into the apartment and was standing in front of the door.4

¶ 4 Shortly after firing the shots, Fernandez approached a car entering the parking lot. The car's dome light was on, which allowed one of three children in the back seat to play a game. Fernandez tapped on the driver's side window, and after he was directed to the passenger side of the car, talked to the front-seat passenger through the open car door for a minute or two. Suddenly, Fernandez went around to the back of the car and fired numerous shots into the car, wounding the driver, the front-seat passenger, and two of the children. The three

169 P.3d 644

children in the car were all under the age of fifteen.

¶ 5 Fernandez testified that after the altercation with his girlfriend, he retrieved his father's loaded AK-47 rifle from his apartment and returned to the area near the balcony to defend himself after he thought one of the persons on the balcony said, "Let's get this dude," and "Let's get him," several times. He testified that he shot to the left and above the heads of the only two people standing on the balcony after he heard one of them say, "Let's smoke the fool." Fernandez knew that children lived in the apartment, but testified that he did not see any children on the balcony. He subsequently fired shots at the car because it nearly hit him and, when the door on the front-passenger side opened, he was afraid the people from the balcony were coming after him. Fernandez stated that he never looked inside the car before he fired the shots.

¶ 6 The jury returned a guilty verdict on one count of first-degree murder and ten counts of attempted first-degree murder, finding all the offenses to be dangerous and finding five of the offenses to be dangerous crimes against children. In the penalty phase of the trial, the jury found that Fernandez should be sentenced to life imprisonment on the first-degree murder conviction. The court sentenced Fernandez to natural life for the murder conviction, and lesser terms for each of the attempted murder convictions. Fernandez timely appealed. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 12-120.01(A)(1) (2003), 13-4031 (2001) and 13-4033 (2001).


I. Supplemental Closing Argument

¶ 7 Fernandez argues that the trial court abused its discretion by ordering supplemental closing argument and ultimately coercing the jury into reaching guilty verdicts. He asserts that the supplemental argument allowed the State to "cure the deficiencies in its theory of premeditation." Additionally, he argues that the prosecutor misinformed the jury as to the distinction between first-degree and second-degree murder during the supplemental argument.

¶ 8 "Jury coercion exists when the trial court's actions or remarks, viewed in the totality of the circumstances, displaced the independent judgment of the jurors, or when the trial judge encourages a deadlocked jury to reach a verdict[.]" State v. Davolt, 207 Ariz. 191, 213, ¶ 94, 84 P.3d 456, 478 (2004) (internal quotation marks and citations omitted). "What conduct amounts to coercion is particularly dependent upon the facts of each case." State v. Roberts, 131 Ariz. 513, 515, 642 P.2d 858, 860 (1982) (finding judge's inquiry into the numerical division of the impasse and comment on the large amount of evidence did not result in coercion); State v. Lautzenheiser, 180 Ariz. 7, 9-10, 881 P.2d 339, 341-42 (1994) (finding verdict was coerced when a judge ordered continued deliberation after a "hold out" juror was twice singled out in open court "as the person responsible for delaying the conclusion of the proceedings"); State v. McCutcheon, 150 Ariz. 317, 318-20, 723 P.2d 666, 667-69 (1986) (finding an implicit and improper message in the trial judge's repeated questions whether the jury could reach a verdict on one count against any defendant, when jury knew that trial judge was aware that two jurors believed that there was not enough evidence on all counts for both defendants). The trial court's response to a jury question is reviewed for abuse of discretion. State v. Ramirez, 178 Ariz. 116, 126, 871 P.2d 237, 247 (1994).

¶ 9 The jury trial in this case lasted eleven days. At the end of the first day of deliberations, the jury's foreperson sent a handwritten note to the court asking:

Can we get an expanded definition of what "pre-meditation" is? Some of us are struggling with what constitutes pre-meditation. Or can you cite any other cases that would help us to understand the definition of pre-meditation?

The trial judge responded in writing to the jury, acknowledging receipt of the question on premeditation and informing the jurors that he and the lawyers would not be able to meet until the following morning at 10:30

169 P.3d 645

a.m. and then he would respond to their question. He also suggested that the jurors continue their deliberations regarding "other issues and counts in the case." The judge e-mailed the jury's question to the attorneys, advising that if neither of them had "anything that we can give them [the jury] to expand or clarify the instruction, I may order supplemental argument on that point tomorrow morning." Defense counsel responded by e-mail that he objected to supplemental argument, suggesting that the jurors instead be told to follow the instructions they were given, and, "[m]ore specifically, the [jurors] should be told[,] should they not agree as to what premeditation is, then they cannot reach a verdict on first degree murder and attempted first degree murder and should proceed accordingly pursuant to the instruction." The prosecutor asked for the opportunity to further argue the concept, stating that "[t]he rules specifically allow for additional argument if the jury is hung up on a specific aspect of the case, and on behalf of the State I request that we be allowed to do that."

¶ 10 The following morning, outside the jury's presence, the trial judge reiterated his intention to order supplemental argument of no more than fifteen minutes per side, explaining that he did not think that he could add to the premeditation instruction "without unduly suggesting one way or another on how they decide the case." The prosecutor responded:

I think their question clearly suggests that they are at an impasse, that some of them have found premeditation on the charge of first-degree and some are not clear whether there is premeditation . . . and I think the court is within its power and discretion, proper exercise of discretion, to order additional argument and I am prepared to go forward with that.

¶ 11 Defense counsel disagreed, noting that the jury had not asked for additional argument, and if the jurors had reached an impasse on premeditation, they should be instructed that "they are obligated under the instruction and the law to go to second-degree murder and attempted second-degree murder on all the counts in this case." The judge responded with his final ruling:

Okay. You are free to tell them that during your supplemental argument, and why I'm doing it is because these instructions, just the instruction part I think are[,] 31 to 32 pages long, and I think it would be helpful for counsel in their argument to give them a kind of decision tree. It's hard for lay people to...

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