State v. Leday, 2 CA-CR 2015-0478

Decision Date10 April 2017
Docket NumberNo. 2 CA-CR 2015-0478,2 CA-CR 2015-0478
PartiesTHE STATE OF ARIZONA, Appellee, v. MICHAEL DWAYNE LEDAY JR., Appellant.
CourtArizona Court of Appeals

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

NOT FOR PUBLICATION

See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24.

Appeal from the Superior Court in Pima County

No. CR20140376001

The Honorable Richard D. Nichols, Judge

AFFIRMED AS CORRECTED

COUNSEL

Mark Brnovich, Arizona Attorney General

Joseph T. Maziarz, Chief Counsel, Phoenix

By Tanja K. Kelly, Assistant Attorney General, Tucson

Counsel for Appellee

Kevin M. Burke, Interim Pima County Public Defender

By Michael J. Miller, Assistant Public Defender, Tucson

Counsel for Appellant

MEMORANDUM DECISION

Judge Miller authored the decision of the Court, in which Presiding Judge Staring and Judge Espinosa concurred.

MILLER, Judge:

¶1 After a jury trial, Michael Leday was convicted of two counts of second-degree murder, one count of aggravated assault causing serious physical injury, and one count of aggravated assault with a dangerous instrument. He was sentenced to concurrent and consecutive terms totaling 57.5 years. He argues the trial court erred by denying his motion for a change of venue, denying his request for a self-defense justification instruction, making certain evidentiary rulings, and improperly aggravating his sentence. We affirm for the reasons stated below.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to sustaining the verdicts. State v. Delahanty, 226 Ariz. 502, n.2, 250 P.3d 1131, 1133 n.2 (2011). At about 3:00 A.M. on New Year's Day 2014, Leday and C.B. got out of a taxicab in a residential area of Tucson. Witnesses at a nearby party saw Leday take off C.B.'s clothing, climb on top of her, and attempt to have sex with her in the middle of the street, even as she screamed for him to stop. A car stopped nearby; P.B., the driver, called the police1 and stepped out of the car2 while on the telephone. Leday told P.B. "that if he want[ed] [C.B.], he [could] take her, that he[ was] no use to her anymore." Leday walked around toward the driver's-side door of the car. P.B. told Leday to back off and not get too close. Leday then punched P.B. and a fistfight ensued between them. Multiple witnesses said Leday was the initial aggressor and P.B. was "defending himself." P.B. tried to back away from the fight at one point but Leday "[f]ollow[ed] him" and kept swinging at him.

¶3 Leday forced his way into the driver's seat of the car. He honked the horn and revved the engine multiple times, and then drove forward, running over C.B.'s legs as she lay in the street. He put the car in reverse, backed up, put it in drive again, and ran over C.B. "back and forth." He continued into a wash and hit a tree, and then backed up and came back toward the street. P.B. positioned himself between the car and C.B. Then Leday accelerated and ran over P.B., dragging him. At some point, Leday got out of the car, punched P.B., and said, "[D]o you want to be a hero[?]" Leday drove away in the car, about thirty seconds or a minute passed, and then he returned and ran over C.B. again. Finally, he came to a stop, got out of the car, screamed "Oh my God, oh my God, what did I do, call the cops," and left.

¶4 Altogether, Leday ran over C.B. about five times, and ran over P.B. three times. C.B. died at the scene, and P.B. died later; a forensic pathologist opined both deaths were caused by blunt-force injuries sustained as the result of being run over by a vehicle. Leday also ran over V.C. at some point during the incident, causing serious injuries which she survived. DNA3 matching that of P.B. and C.B. was found on the undercarriage of the car.4 DNA matching Leday's was found in the center of the car's deployed driver's-side airbag, on the windshield at the site of impact, and on the interior handle of the driver's-side door. The car's electronic data system showed that the vehicle had been going seventy-eight miles per hour five seconds before the airbag had deployed, and that the accelerator was pressed to one hundred percent capacity at the moment of the impact that had caused the airbag to deploy.

¶5 Leday took a bus to Missouri the day after the incident and was eventually apprehended in Kansas City after a foot chase with law enforcement officers there. He spontaneously commented to a Missouri detective: "I'm going to get the death penalty for this shit."

¶6 After a jury trial, Leday was convicted of second-degree murder of P.B. and C.B., aggravated assault with a dangerous instrument of V.C., and aggravated assault causing serious physical injury of V.C.5 We have jurisdiction over his appeal pursuant to A.R.S. §§ 13-4031 and 13-4033(A)(1).

Motion for Change of Venue

¶7 Leday argues the trial court erred by denying his motion for a change of venue based on pretrial publicity pursuant to Rule 10.3, Ariz. R. Crim. P. "A party seeking a change of venue must show that the prejudicial pretrial publicity 'will probably . . . deprive[] [the party] of a fair trial.'" State v. Cruz, 218 Ariz. 149, ¶ 12, 181 P.3d 196, 203 (2008), quoting Ariz. R. Crim. P. 10.3(b) (alterations in Cruz). We review a ruling on a motion for a change of venue for an abuse of discretion. State v. Forde, 233 Ariz. 543, ¶ 11, 315 P.3d 1200, 1210 (2014).

¶8 A reviewing court employs a two-step inquiry to decide "whether, under the totality of the circumstances, the publicity attendant to defendant's trial was so pervasive that it caused the proceedings to be fundamentally unfair." Id. ¶ 12, quoting Cruz, 218 Ariz. 149, ¶ 13, 181 P.3d at 203. First, the court will ask "whether the publicity so pervaded the proceedings that the trial court erred by not presuming prejudice." Id. If prejudice is not presumed, the court determines "whether the defendant showed actual prejudice." Id. ¶9 The defendant's burden of showing presumptive prejudice from pretrial publicity is "extremely heavy." Id. ¶ 13, quoting State v. Bible, 175 Ariz. 549, 564, 858 P.2d 1152, 1167 (1993). "The publicity must be so unfair, prejudicial, and pervasive that jurors could not decide the case fairly, even if they avow otherwise." Id.; see also State v. Bigger, 227 Ariz. 196, ¶ 10, 254 P.3d 1142, 1146 (App. 2011), quoting Cruz, 218 Ariz. 149, ¶ 15, 181 P.3d at 204 (pretrial coverage "must be so 'extensive or outrageous that it permeated the proceedings or created a "carnival-like" atmosphere'"). Courts will consider not only the quantity but also the effect of pretrial publicity, and are reluctant to presume prejudice when the publicity was "primarily factual and non-inflammatory" or "did not occur close in time to the trial." Bigger, 227 Ariz. 196, ¶ 11, 254 P.3d at 1146, quoting State v. Nordstrom, 200 Ariz. 229, ¶ 15, 25 P.3d 717, 727 (2001).

¶10 Leday has not carried the extremely heavy burden of showing presumptive prejudice. The news articles he attached to his motion for a change of venue were largely factual in nature, and all were published more than a year before the beginning of trial. Cf. Forde, 233 Ariz. 543, ¶ 14, 315 P.3d at 1211 (no presumed prejudice where most news accounts "essentially factual" and published in immediate aftermath of crimes, about eighteen months before trial). The coverage primarily discussed the crime itself, Leday's apprehension and extradition, and the effects of the crime on the victims and their families. One article quoted a police spokesperson as saying that Leday had "aggressively used [P.B.'s] vehicle as a weapon to strike all three victims multiple times," but indeed this was the state's theory of the case as to the first-degree murder and attempted first-degree murder counts, and it was essentially factual with the possible exception of the word "aggressively." Leday also emphasizes that numerous articles included characterizations of him as a "monster" or characterizations of P.B. as a "hero," "good Samaritan," "gentleman," or "stand-up guy," but most of these characterizations were merely quotes from P.B.'s loved ones. Such characterizations are neither surprising nor inflammatory coming from those who had lost a loved one in a tragic incident.

¶11 The pretrial coverage in this case was not nearly as inflammatory as that in Bible, in which certain news reports incorrectly stated the defendant was a child molester, had "'flunked' a lie detector test" in connection to the case, and had admitted involvement in the charged offenses. 175 Ariz. at 564, 858 P.2d at 1167. Even on those facts, our supreme court declined to presume prejudice, observing that the record did not show the coverage had "utterly corrupted" the trial. Id. at 564-65, 858 P.2d at 1167-68, quoting Murphy v. Florida, 421 U.S. 794, 798 (1975). As in Bible, here the trial court did not abuse its discretion in determining Leday did not establish that the coverage was so outrageous as to foreclose the possibility of a fair trial.

¶12 Leday also argues reader comments posted on the internet website versions of some of the news articles support his claim of presumptive prejudice. Although we agree some of the comments were inflammatory, "[a] smattering of online comments found on news stories hardly substantiates a finding of community prejudice in a large community such as [Tucson]." State v. Griego, 377 P.3d 1217, ¶ 34 (Mont. 2016); accord Powell v. State, 49 A.3d 1090, 1098 (Del. 2012) (inflammatory online comments deserved only minimal weight in presumptive prejudice analysis). To the extent the comments created the potential for actual prejudice among jurors, "the best method to uncover [such] potential prejudice is through the voir dire process," which here revealed no prejudice, as discussed below. Griego, 377 P.3d 1217, ¶ 34.

¶13 Nor has Leday shown actual prejudice. "For a court to find actual prejudice, jurors must have formed preconceived notions of guilt they were unable to set aside." Bigger, 227 Ariz. 196,...

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