State v. Garnica

• Decision Date: 28 September 2004
• Docket Number: No. 1 CA-CR 02-0832.,1 CA-CR 02-0832.
• Citation: 209 Ariz. 96,98 P.3d 207
• Parties: STATE of Arizona, Appellee, v. Manuel Uriarte GARNICA, Appellant.
• Court: Arizona Court of Appeals

98 P.3d 207

209 Ariz. 96

STATE of Arizona, Appellee, v. Manuel Uriarte GARNICA, Appellant.

No. -0832.

Court of Appeals of Arizona, Division 1, Department B.

September 28, 2004.

Terry Goddard, Attorney General By Randall M. Howe, Chief Counsel, Criminal Appeals Section and Alan L. Amann, Assistant Attorney General Attorneys, Phoenix, for Appellee.

James J. Haas, Maricopa County Public Defender By Peg Green, Deputy Public Defender Attorneys, Phoenix, for Appellant.

OPINION

BARKER, Judge.

¶ 1 In this Opinion, we address the question of whether a person can be an accomplice to an offense that is premised on a reckless mental state. The specific issue is whether one who must have "the intent to promote or facilitate the commission of an offense" in order to be an accomplice, Ariz.Rev.Stat. ("A.R.S.") § 13-301 (2001) (emphasis added), can do so when the offense requires only a mens rea of recklessness. We find that such criminal liability is both legally possible and factually supported here. We affirm.¹

I.

¶ 2 Late one night in May of 2000, defendant Manuel Uriarte Garnica ("Manuel") and his brother, Jason Lucas Garnica, were drinking and partying with friends in a residential area in Guadalupe, Arizona. Another group of people, who had been drinking and partying at a different location in Guadalupe, drove into the area and exited their vehicles. The group of newcomers included, among others, Mike M., Monique M., Richard N., David L., and Cynthia A. Some of the people in the two groups began yelling at each other and trading insults. Some beer bottles were thrown with one of the bottles hitting Richard N. in the head and knocking him down. Mike M. began swinging a stick that resembled a nunchaku ² to protect Richard N. from further harm, and in doing so, hit Jason Garnica.

¶ 3 About that time, shots rang out. Realizing that bullets were flying around them, the group of newcomers got back into their vehicles and drove away but not before a bullet hit Richard N. in the leg. As more shots were fired toward the fleeing vehicles, one bullet hit the gas tank of the Dodge Neon in which Monique M., David L., and Cynthia A. were riding. Other bullets may have hit the Yukon carrying Mike M. and Richard N. Another bullet lodged itself in the hood of a Chevrolet Cavalier that happened to be passing through the area at the time of the shooting, with three neighborhood residents inside. Tragically, one of the bullets struck and killed an eighteen-year-old neighborhood resident ("the victim"), just as the victim's father was approaching to talk to him.

¶ 4 Police officers who arrived at the scene found seven bullet casings in the dirt area next to the house where the neighborhood group had congregated and eight additional casings in the street in front of the house. An analysis of the bullet recovered from the victim's body, along with the shell casings, bullets, and bullet fragments recovered from the scene and the various vehicles, indicated the likelihood that all of the shots had been fired from the same gun.

¶ 5 Witnesses reluctantly divulged to the police that the two Garnica brothers had been shooting a gun from the locations where the shells were found, but their testimony was less than clear as to which of the shots had been fired by which brother. In Manuel's first videotaped interview with police, he denied that he had even been at the scene. In a second videotaped interview, after the other witnesses had provided their statements to the police, Manuel confessed that he had been there and was the person who had brought the gun, but he denied doing any shooting. He claimed, instead, that Jason had asked him for the gun and had fired all the shots. Manuel further claimed he did not shoot the gun; rather he had stayed by Jason's side as Jason shot, giving Jason ammunition when Jason asked for it. In a separate interview, Jason confessed that he had fired a number of the shots, including those directed at the vehicles as they drove away, but he claimed that Manuel had fired the first few shots before handing him the gun.

¶ 6 Manuel and Jason were indicted on a number of charges arising out of the shooting incident. Manuel, alone, was charged with the second degree murder of the victim and aggravated assault against Richard N. and the victim's father. Both Manuel and Jason were charged with aggravated assault against Monique M., David L., and Cynthia A. Both brothers were also charged with endangerment as to the three neighborhood residents in the Chevy Cavalier.

¶ 7 Subsequently, Jason pled guilty to one of the aggravated assault charges in return for dismissal of all the other charges against him and received a ten-year sentence. Manuel pled not guilty and went to trial on all nine of the charges.

¶ 8 When called at trial, the witnesses who had implicated Jason and Manuel denied any memory of what had happened, but the state was able to present evidence of the statements the witnesses had previously made to the police. Manuel chose not to testify. Portions of his taped interviews with the police were shown to the jury. Manuel's primary theory in defense was that he had not been the shooter, and particularly not the shooter of the bullet that hit the victim. Secondarily, he claimed self-defense, arguing that irrespective of whether it was he or Jason who fired any of the shots giving rise to the charges, he and Jason were being shot at and were justified in firing back. He requested and received jury instructions on the justification defenses of self-defense and defense of third persons.

¶ 9 At the close of evidence, the trial court granted judgment of acquittal on the assault charges involving David L. and Cynthia A.³ The court sent all the other charges to the jury. The jury found Manuel guilty as charged on the seven remaining counts. The trial court sentenced Manuel to an aggravated term of twenty years for the second degree murder conviction, presumptive terms of 7.5 years on each of the three aggravated assault counts, and presumptive terms of 2.25 years on each of the three endangerment counts, with all sentences to be served concurrently. Manuel filed a timely notice of appeal. We have jurisdiction pursuant to A.R.S. § 12-120.21 (2003).

II.

¶ 10 Manuel claims the trial court committed reversible error in giving the accomplice liability instruction to the jury on each of the offenses that could be established by means of a reckless mental state. Manuel argues that "the mental state required for recklessness precludes a finding that a person acted as an accomplice." We reject this argument. Our statutory scheme permits accomplice liability for one who intentionally promotes or facilitates the perpetrator's conduct in committing an offense, even though the culpable mental state for the offense itself is recklessness.

¶ 11 Five of the seven counts against Manuel that went to the jury could be satisfied upon a showing of a reckless mental state: the three endangerment charges, A.R.S. § 13-1201(A) (2001) ("A person commits endangerment by recklessly endangering another person with a substantial risk of imminent death or physical injury.") (emphasis added); the second degree murder charge, A.R.S. § 13-1104(A)(3) (2001) ("Under circumstances manifesting extreme indifference to human life, such person recklessly engages in conduct which creates a grave risk of death and thereby causes the death of another person.") (emphasis added); and the aggravated assault involving physical injury to Richard N., A.R.S. § 13-1203(A)(1) (2001) ("A person commits assault by ... [i]ntentionally, knowingly or recklessly causing any physical injury to another person.") (emphasis added). The two remaining counts of aggravated assault that went to the jury did not result in physical injury, and could be established only by showing that defendant "[i] ntentionally plac[ed] another person in reasonable apprehension of imminent physical injury." A.R.S. § 13-1203(A)(2) (2001) (emphasis added). Thus, these latter two counts are not at issue.

¶ 12 Manuel has two bases for his argument that accomplice liability cannot exist for reckless offenses. First, he relies upon the language of A.R.S. § 13-301. Second, he cites to State v. Phillips, 202 Ariz. 427, 46 P.3d 1048 (2002), in which our supreme court construed certain of the accomplice liability statutes, A.R.S. §§ 13-301 and -303(A)(3) (2001).

A.

¶ 13 We address first the statutory argument that the language of the accomplice liability statute itself precludes accomplice liability for reckless offenses. That statute provides in pertinent part as follows:

"[A]ccomplice" means a person ... who with the intent to promote or facilitate the commission of an offense:

1. Solicits or commands another person to commit the offense; or

2. Aids, counsels, agrees to aid or attempts to aid another person in planning or committing the offense[;]

3. Provides means or opportunity to another person to commit the offense.

A.R.S. § 13-301. The jury instructions included, verbatim, the above statutory language. The instructions also included the following:

A person is criminally accountable for the conduct of another if the person is an accomplice of such person in the commission of an offense.

This latter instruction is taken directly from A.R.S. § 13-303(A).

¶ 14 During jury deliberations, the jury asked the following questions: "On the aggravated assault charge does the defendant have to be the one shooting the gun. Does paragraph 3 on second degree murder apply with [sic] does he have to be the shooter." With the approval of both counsel, the trial court advised the jury in writing that "[a]s to either or both aggravated assault and/or second degree murder, the defendant does not have to be a principal (shooter) if you find beyond a reasonable doubt that he is an accomplice, as defined on page 30 of the instructions."

¶ 15 Because Manuel did not object to the accomplice liability...