State v. Marchesano, 1
| Decision Date | 13 June 1989 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 162 Ariz. 308,783 P.2d 247 |
| Parties | STATE of Arizona, Appellee, v. Martino Elliott MARCHESANO, Appellant. 11784. |
| Court | Arizona Court of Appeals |
Does accomplice liability extend to the crime of attempted premeditated murder? That is the principal issue decided in this case. We answer that question affirmatively in holding that defendant was properly convicted of three crimes after trial by jury: (1) the armed robbery of a restaurant; (2) the attempted murder of the restaurant owner, whom defendant's accomplice shot at during their escape; (3) the attempted murder of a policeman, whom defendant shot at during their escape.
In the early evening of May 3, 1986, defendant Marchesano and a companion, Allen Tommasone, arrived at the Phoenix home of Clyde Peed, defendant's lifelong friend. Marchesano and Tommasone carried three guns into Peed's home. Later that evening the three put the weapons into defendant's jeep and set out with Peed as driver. Peed parked near some apartments and waited while defendant and Tommasone entered a restaurant nearby. Inside the restaurant, defendant approached the cash register and asked the manager for change. As the manager opened the cash drawer, Marchesano or Tommasone said, "We are going to take the money." Tommasone pointed a gun at the manager; one witness also saw him point it at defendant. Both defendant and Tommasone took money from the register. Then defendant, stuffing money in his pocket, grabbed Tommasone's arm and said, "Let's go." The restaurant owner, who witnessed these events, followed the two outside. As he emerged, one of the men came from behind the building and fired a shot, which struck the owner in the arm. 1
Defendant and Tommasone then ran to the jeep where Peed sat waiting. As Peed drove off, Marchesano and Tommasone argued over the shooting, and Tommasone stated that he thought he had "just shot somebody and killed them."
Within minutes, Phoenix Police Officer Munsey approached the jeep in his patrol car and directed it to the side of the road. According to Peed, Tommasone said, "I am going to have to kill this cop," and Peed pleaded with Tommasone not to do it. 2
As the jeep pulled over, Officer Munsey saw defendant, who was seated in the back, bend forward, raise up with a rifle, and point the rifle at Munsey's car. Munsey ducked and threw his car into reverse. As he backed away, he heard a burst of gunfire and felt bullets strike the car. A witness who lived nearby saw Peed and Tommasone leave the jeep and run off down the street. The same witness saw defendant leave the jeep and fire at the police car before he ran. Officer Munsey returned defendant's fire and hit him in the back. Defendant dropped his weapon and fled to a backyard, where a police dog later found him. A police dog also found Peed's hiding place, but Tommasone escaped. The next day, before he could be arrested, Tommasone killed himself.
Evidence showed that Officer Munsey's car was hit five times: bullets pierced the windshield, the driver's headrest, the loudspeaker, the right front push bar, and the left hood.
At trial, defendant admitted participation in the armed robbery, but claimed that he acted under duress. He testified that he had no idea that Tommasone meant to hold up the restaurant until, after defendant had asked the manager for change, Tommasone pointed the gun at defendant and told him to take money from the register. He claimed that he complied out of fear. Defendant also testified that, when Tommasone stated his intent to shoot the officer, defendant began firing in order to warn the officer away. He admitted that one of his shots might have stricken the driver's side of the officer's front windshield, but insisted that he never intended to hit the officer or his car.
Defendant was tried before a jury on charges of Count I, armed robbery; Count II, attempted murder in the first degree (premeditated attempt to cause the death of the restaurant owner); and Count III, attempted murder in the first degree (premeditated attempt to cause the death of Officer Craig Munsey of the Phoenix Police Department). All counts were charged as dangerous offenses. See A.R.S. § 13-604(G). All of the offenses were class 2 felonies.
After presentation of the evidence, the trial court instructed the jury on defendant's theories of duress and justification. Defendant claimed that he had participated in the armed robbery out of duress and that he had fired at Officer Munsey in a justified effort to save Munsey's life. Defendant did not want the jury instructed on lesser included offenses, so the case was submitted on "an all or nothing basis."
The jury found defendant guilty on all counts. For Count I, armed robbery, defendant was sentenced to serve an aggravated term of sixteen years; for Count II, attempted murder of the restaurant owner, defendant was sentenced to serve an aggravated term of twelve years; for Count III, attempted murder of Officer Munsey, defendant was sentenced to serve an aggravated term of twenty-one years. The court ordered the sentence on Count III to run consecutively to the concurrent sentences imposed for Counts I and II. A $100 felony assessment was imposed for each count, but no restitution was ordered. 3
Defendant raises three issues on appeal: (1) He argues that he was entitled to acquittal on Count II, because the evidence established only that Tommasone shot at the restaurant owner and did not establish that he, the defendant, premeditated, intended, or attempted to cause the restaurant owner's death. (2) He argues that his duress defense to Counts I and II was prejudicially diminished by the trial court's refusal to admit evidence of a "psychiatric autopsy" of Tommasone. (3) He argues that the trial court committed fundamental error by failing to instruct the jury sua sponte to consider the defense of duress with respect to Count III, the attempted murder of Officer Munsey. We reject each of these arguments and affirm.
Defendant argues first that he was entitled to a judgment of acquittal on Count II in the absence of evidence that he personally premeditated the attempted murder of the restaurant owner. Although defendant moved for such a judgment at the close of the state's evidence pursuant to Rule 20, 17 A.R.S. Arizona Rules of Criminal Procedure, the state argues that he waived the issue by the failure to renew his motion at the close of all the evidence.
We find no waiver. Rule 20 does not require renewal of the motion. See State v. Blackhoop, 158 Ariz. 472, 763 P.2d 536 (App.1988). 4 Rather, if the motion is denied following presentation of the state's case, the defendant must elect whether to rest on the motion or proceed to present his case. If he presents his case, he takes the chances of having deficiencies in the state's case supplied by later testimony of either the defense or prosecution. [On appeal] the question of the sufficiency of the evidence to sustain the verdict ... is then determined ... by a consideration of all the evidence presented in the case. State v. Weis, 92 Ariz. 254, 261, 375 P.2d 735, 740 [1962].
State v. Villegas, 101 Ariz. 465, 467, 420 P.2d 940, 942 (1966). Thus, failure to renew a Rule 20 motion for judgment of acquittal does not constitute a waiver. Rather, defendant's election to proceed permits the state to relieve any deficiency in its case through evidence elicited from defense witnesses or on rebuttal. Id. The issue of the sufficiency of the evidence overall remains. 5
By the jury's verdict on Count II, defendant was convicted of attempting the first degree murder of the restaurant owner, who was shot as defendant and Tommasone fled the restaurant toward their waiting jeep. Defendant argues that he was entitled to acquittal on this count because no evidence showed that he, acting with premeditation, either intended or attempted that man's death.
The evidence established that defendant brought three guns to Phoenix, intending to deliver them to Tommasone. One, a loaded pistol, was taken into the restaurant where the robbery occurred. It appears that Tommasone had its possession throughout the episode. Defendant claimed that he was surprised and afraid for his own safety, once inside the restaurant, when he saw the gun in Tommasone's hand. He claimed that Tommasome aimed the gun at him and directed him to take the money. He was not Tommasone's accomplice, he claimed, but an unwilling participant under duress with no responsibility for the shot that Tommasone fired as they fled.
On review, this court will view the evidence in the light most favorable to sustaining the jury's verdict. State v. Hutton, 143 Ariz. 386, 694 P.2d 216 (1985). Reversal is warranted only in the absence of probative evidence to support the verdict. State v. Girdler, 138 Ariz. 482, 675 P.2d 1301 (1983), cert. denied, 467 U.S. 1244, 104 S.Ct. 3519, 82 L.Ed.2d 826 (1984). The jury was not required to accept defendant's theory of the case. Rather, the jury was free to conclude, as it obviously did, that Marchesano and Tommasone entered the restaurant with the concerted intent to engage in crime.
A.R.S. § 13-301 defines an accomplice as a person who
with 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...
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