State v. Lewis

• Decision Date: 10 December 2014
• Docket Number: No. 2 CA–CR 2013–0323.,2 CA–CR 2013–0323.
• Citation: 236 Ariz. 336,340 P.3d 415,701 Ariz. Adv. Rep. 6
• Parties: The STATE of Arizona, Appellee, v. Anthony LEWIS, Appellant.
• Court: Arizona Court of Appeals

236 Ariz. 336

340 P.3d 415

701 Ariz. Adv. Rep. 6

The STATE of Arizona, Appellee,

v.Anthony LEWIS, Appellant.

No. 2 CA–CR 2013–0323.

Court of Appeals of Arizona, Division 2.

Dec. 10, 2014.

Affirmed as modified.

See also 2014 WL 6985977. Thomas C. Horne, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel by Eliza C. Ybarra, Assistant Attorney General, Phoenix, Counsel for Appellee.

Lori J. Lefferts, Pima County Public Defender by David J. Euchner and Erin K. Sutherland, Assistant Public Defenders, Tucson, Counsel for Appellant.

Judge HOWARD authored the opinion of the Court, in which Presiding Judge KELLY and Judge VÁSQUEZ concurred.HOWARD, Judge.

¶ 1 After a jury trial, appellant Anthony Lewis was convicted of one count of first-degree murder, two counts of aggravated assault, and one count of second-degree burglary. On appeal, Lewis argues the trial court erroneously found him competent to stand trial and erred in its instructions to the jury on his first-degree murder charge. For the following reasons and those expressed in a separate memorandum decision, we affirm the convictions and sentences, except as stated in the memorandum decision.¹

Factual and Procedural Background

¶ 2 We view the record in the light most favorable to upholding the jury's verdicts. State v. Robles, 213 Ariz. 268, ¶ 2, 141 P.3d 748, 750 (App.2006). Lewis and the victim, A.H., had lived together in Tucson near the end of 2007 and beginning of 2008. After an altercation between the two in January 2008, A.H. obtained an injunction against harassment by Lewis, which he violated later that month. A.H. subsequently moved to a different home, miles from where she had lived with Lewis.

¶ 3 At some point, Lewis learned of A.H.'s new address. On September 21, A.H. returned home from a camping trip and discovered that Lewis had broken into her home while she was away. She also discovered a voicemail message from Lewis in which he said, “[Y]ou'll never guess where I am. I'm inside your house. Oh, what's that? What's this over here?” A.H. called 9–1–1 to report the break-in. When the police arrived, they found Lewis in A.H.'s yard. The police arrested him, and, following his initial appearance that same day, the justice court released him with an instruction not to return to A.H.'s residence.

¶ 4 The next day, September 22, Lewis returned to A.H.'s home, poured gasoline or some other kind of accelerant on her, and lit her on fire. A.H., naked and on fire, ran next door to her neighbor's house; the neighbor placed her under running water in his shower and called 9–1–1. A.H. identified Lewis as her assailant when officers arrived at the neighbor's home. Five months after the incident, A.H. died from complications related to her extensive burns.

¶ 5 The grand jury indicted Lewis on one count of first-degree murder, two counts of aggravated assault, and one count of first-degree burglary for the events that occurred on September 22. It also indicted him on one count of second-degree burglary for the break-in discovered on September 21. The jury found Lewis guilty of all but the first-degree burglary charge. The trial court sentenced him to an aggravated prison term of seven years for his second-degree burglary conviction, two aggravated terms of fifteen years for the assault convictions, both of which were to be served consecutively to the burglary sentence and to each other, and to natural life in prison on the first-degree murder charge, to be served concurrently with the sentences for aggravated assault.² We have jurisdiction over his appeal pursuant to A.R.S. §§ 12–120.21(A)(1) and 13–4033(A)(1).

Competency to Stand Trial

¶ 6 Lewis argues the trial court abused its discretion in finding him competent to stand trial without any evidence demonstrating successful restoration despite previously determining him to be incompetent.

¶ 7 After Lewis filed a motion pursuant to Rule 11.2, Ariz. R.Crim. P., the court ordered an examination of his competence and subsequently found him not competent to stand trial and ordered restoration treatment. After two attempts at restoration and further hearings, the court ultimately found Lewis competent.

¶ 8 We review the trial court's competency determinations for abuse of discretion. State v. Glassel, 211 Ariz. 33, ¶ 27, 116 P.3d 1193, 1204 (2005). We do not reweigh the evidence. State v. Arnoldi, 176 Ariz. 236, 239, 860 P.2d 503, 506 (App.1993), overruled on other grounds by State v. Jones, 235 Ariz. 501, ¶ 10, 334 P.3d 191, 193 (2014). Instead, “[w]e must determine whether reasonable evidence supports the trial court's finding that the defendant was competent, considering the facts in the light most favorable to sustaining the trial court's findings.” Glassel, 211 Ariz. 33, ¶ 27, 116 P.3d at 1204.

¶ 9 Competency is an “extremely narrow issue” focused on the test articulated by Rule 11.1, Ariz. R.Crim. P. See State v. Steelman, 120 Ariz. 301, 315, 585 P.2d 1213, 1227 (1978). A defendant is incompetent to stand trial when, “as a result of mental illness, defect, or disability, the person is unable to understand the proceedings against him or her or to assist in his or her own defense.” Ariz. R.Crim. P. 11.1; see also A.R.S. § 13–4501(2). The fact that a defendant suffers from a mental illness, defect, or disability is not, by itself, grounds for finding the defendant incompetent. § 13-4501(2); Ariz. R.Crim. P. 11.1. Thus, a defendant found to have an intellectual disability is “not shielded from trial” automatically. State v. Grell, 212 Ariz. 516, ¶ 38, 135 P.3d 696, 705 (2006).

¶ 10 If the trial court finds the defendant incompetent, the court “shall order competency restoration treatment unless there is clear and convincing evidence that [the] defendant will not regain competency within 15 months.” Ariz. R.Crim. P. 11.5(b)(3). The initial determination of incompetence raises a rebuttable presumption of continued incompetence. State v. Hehman, 110 Ariz. 459, 460, 520 P.2d 507, 508 (1974); State v. Blazak, 110 Ariz. 202, 204, 516 P.2d 575, 577 (1973). Nevertheless restoration treatment most often results in restoration to competence or a discovery the defendant had been malingering. Grell, 212 Ariz. 516, ¶ 39, 135 P.3d at 705.

¶ 11 Lewis argues that, after finding a defendant incompetent, a trial court cannot find the defendant competent unless “a positive change in condition [is] presented, and there [is] evidence presented that the restoration efforts were successful.” He relies on the following language quoted in Nowell v. Rees:

“For competency to be restored or regained there must be a positive change in the defendant's condition indicating that he is now able to understand the proceedings against him and assist his own defense, whereas he could not previously do so. It is not enough for a new expert to disagree with the previous determination. A new expert must be able to explain that restoration efforts were effective, and the trial court must make findings to that effect.”

219 Ariz. 399, ¶ 4, 199 P.3d 654, 657 (App.2008), quoting Nowell v. Hintze, No. 1 CA–SA 06–0236, 3 (decision order filed Mar. 22, 2007).

¶ 12 Lewis's reliance on Nowell for this proposition is misplaced. The statement relied on is a quote from an unpublished decision, was dictum as to the published opinion in Nowell, and did not create binding precedent. See Creach v. Angulo, 186 Ariz. 548, 552, 925 P.2d 689, 693 (App.1996); see also Ariz. R. Sup.Ct. 111(c); Ariz. R.Crim. P. 31.24. The issue decided in Nowell was whether the trial court had authority to order competency restoration treatment for more than twenty-one months after an initial finding of incompetence. 219 Ariz. 399, ¶¶ 12, 27–28, 199 P.3d at 659, 662. This court's opinion did not concern the evidence necessary to overcome the presumption of continued incompetence, and the court “may not have been fully advised on the question.” Creach, 186 Ariz. at 552, 925 P.2d at 693.

¶ 13 Further, Nowell does not address whether the subsequent discovery that a defendant had been malingering will overcome this presumption. See 219 Ariz. 399, ¶¶ 12–27, 199 P.3d at 659–62. And Lewis does not cite to any Arizona case suggesting a subsequent discovery of malingering is not sufficient to overcome this burden.³ Nor does he explain how the state could show a malingering defendant has been restored to competence when the defendant does not, in reality, lack the competence to stand trial. Accordingly, we reject Lewis's contention that a positive change in a defendant's condition and successful restoration is always required before a trial court can find competent a defendant previously found incompetent.

¶ 14 We accept, however, the premise that the trial court cannot make a subsequent finding of competence unless some new evidence—either of restoration or malingering—is presented to rebut the presumption of continued incompetence. But, as with other rebuttable presumptions, the presumption of continued incompetence “disappears entirely upon the introduction of any contradicting evidence and when such evidence is introduced the existence or non-existence of the presumed [incompetence] is to be determined exactly as if no presumption had ever been operative.” Sheehan v. Pima County, 135 Ariz. 235, 238, 660 P.2d 486, 489 (App.1982); cf. State v. Grilz, 136 Ariz. 450, 455, 666 P.2d 1059, 1064 (1983) (presumption of sanity “vanishes once [defendant] presents sufficient evidence to raise a reasonable doubt as to sanity”). Thus, evidence demonstrating the defendant is competent or invalidating the original determination of incompetence, such as evidence of malingering, will suffice to remove the presumption of continued incompetence. Cf. State v. Arellano, 213 Ariz. 474, ¶ 13, 143 P.3d 1015, 1018 (2006) (rebuttable presumption of intellectual disability ⁴ “vanishes” when state presents evidence intelligence quotient scores invalid or other evidence capital defe...