State v. Sulu-Kerr

• Docket Number: 1 CA-CR 22-0565
• Decision Date: 25 January 2024
• Parties: STATE OF ARIZONA, Appellee, v. TIA LYN NICOLE SULU-KERR, Appellant.
• Court: Arizona Court of Appeals

1

STATE OF ARIZONA, Appellee, v. TIA LYN NICOLE SULU-KERR, Appellant.

No. 1 CA-CR 22-0565

Court of Appeals of Arizona, First Division

January 25, 2024

Appeal from the Superior Court in Yuma County No. S1400CR202100038 The Honorable Brandon S. Kinsey, Judge (Retired)

Arizona Attorney General's Office, Phoenix By Andrew Reilly Counsel for Appellee

Yuma County Public Defender's Office, Yuma By Robert J Trebilcock Counsel for Appellant

Presiding Judge D. Steven Williams delivered the Court's opinion, in which Judge Samuel A. Thumma and Judge Paul J McMurdie joined.

OPINION

WILLIAMS, JUDGE

¶1 In Arizona, a person generally may avail herself of a self-defense justification as a defense to a Title 13 charge only if she acted with force after another's use of unlawful force. But an occupant of a vehicle facing a forceful entry or removal by another may respond with force even if the other's force is lawful and occurs during the occupant's commission of an unlawful act. Here, defendant Tia Sulu-Kerr appeals her convictions and sentences for leaving the scene of a fatal accident, theft of means of transportation, aggravated assault, and negligent homicide (a lesser included offense of manslaughter). Because the jury was not instructed on justification while in an occupied vehicle-preventing Sulu-Kerr from fully claiming justification for her actions-we vacate the aggravated assault and negligent homicide convictions and sentences, and remand for a new trial on those counts. We otherwise affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 After spending an evening together at a casino, Amber Rodriguez offered her housemate, Sulu-Kerr, and another friend, M.Y., the vehicle she had been using (a Ford Flex) to drive home. Rodriguez had stolen the Ford a month earlier from a friend's brother, J.B., who apparently did not report the Ford stolen after Rodriguez took it.

¶3 Sulu-Kerr left the casino shortly before dawn and drove, with M.Y. in the passenger seat, to a gas station. When they pulled up to a gas pump, J.B. and his brother, M.B., suddenly appeared and rushed the vehicle. J.B. ran to the open driver-side window and ordered Sulu-Kerr to "get out of the car," yelling it was "[his] car." Sulu-Kerr had never seen the men before and pulled forward, hitting M.B., who fell under the Ford and suffered a fatal head injury. Sulu-Kerr then drove away. She sent three text messages to Rodriguez in quick succession about what "went down at Circle K." She later told Rodriguez she "tried to take off" after a man "jumped in the window," frightened that he may kill her.

¶4 Police officers quickly located the Ford, traced it to Rodriguez, and questioned her about the incident. After speaking with officers, Rodriguez warned Sulu-Kerr that police were looking for the driver of "the hit and run" and "if she was still in Arizona . . . she should leave."

¶5 While trying to locate Sulu-Kerr, police spoke to her daughter. The daughter relayed Sulu-Kerr's account, telling an officer that two men had accosted Sulu-Kerr at a gas station, with one man ordering her to "get out of the car" and the other man "jump[ing] onto the hood" of the vehicle. According to the daughter, Sulu-Kerr admitted running over the second man as she "left the scene." She also acknowledged that police were looking for her, explaining she had not contacted law enforcement because she "was scared."

¶6 More than a month after the incident, Sulu-Kerr contacted the police and was interviewed. She denied knowing the Ford was stolen but admitted that Rodriguez had made statements indicating she did not rightfully possess the vehicle. When questioned about the gas station incident, Sulu-Kerr explained she was so focused on J.B. standing just outside her open window that she never looked at M.B., whom she could hear yelling back and forth with M.Y. Sulu-Kerr told police she believed J.B. was attempting to carjack them. Claiming she feared for her safety when she saw J.B. reach toward his pocket to possibly pull out a gun, Sulu-Kerr said that she put the vehicle in reverse, heard a loud noise as though someone had jumped on the hood, then put the vehicle into drive and drove off. Although she denied seeing it, Sulu-Kerr admitted she knew she ran over something when she drove away.

¶7 The State charged Sulu-Kerr with leaving the scene of a fatal accident, theft of means of transportation, aggravated assault, and manslaughter. At trial, defense counsel argued that Sulu-Kerr had acted in self-defense, not knowing the Ford was stolen and believing her safety was in jeopardy when she hit M.B. and drove away. Rodriguez testified that she "believe[d]" she told Sulu-Kerr the car was stolen but explained she could not clearly recall because of her substance use.^[1] M.Y. testified that J.B. and M.B. "came out of nowhere" and that one or the other ordered him and Sulu-Kerr out of the vehicle, slammed the hood, "tried to open the door," reached into the vehicle through the open driver-side window, and then reached into a bag or backpack-at which point M.Y. put his head between his legs and Sulu-Kerr drove off. Acknowledging that he "felt something go underneath [the vehicle]" as Sulu-Kerr drove away, M.Y. testified that he told Sulu-Kerr to "go, keep going" because he "didn't want to hear them shots go off."

¶8 Surveillance video footage showed J.B. holding something in his hand and later showed him running toward the Ford.^[2] Because of the camera angle, the video captured only some of the incident: (1) J.B. running toward the driver-side door, (2) M.B. rushing toward the front or passenger side of the vehicle, at which point he moved outside the camera's frame, and (3) Sulu-Kerr pulling away within a few seconds. No gun was found at the gas station.

¶9 Jurors found Sulu-Kerr guilty of the lesser-included offense of negligent homicide after failing to agree on the manslaughter charge. They otherwise found her guilty as charged on the remaining counts. The trial court sentenced Sulu-Kerr to concurrent and consecutive prison terms totaling 12.5 years.

¶10 Sulu-Kerr timely appealed. We have jurisdiction under Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

I. Self-Defense as a Justification for Leaving the Scene of a Fatal Accident

¶11 Before trial, the State moved for a ruling, and corresponding jury instruction, that self-defense did not apply to the charges of leaving the scene of a fatal accident and theft of means of transportation. Sulu-Kerr agreed that self-defense did not justify the theft charge but argued jurors should consider whether it justified leaving the scene of a fatal accident. The trial court granted the State's motion and told the jurors that the instructions for self-defense applied only to the aggravated assault and manslaughter charges.

¶12 On appeal, Sulu-Kerr reasserts her argument that self-defense may justify conduct that would otherwise constitute leaving the scene of a fatal accident. Arizona law is contrary.

¶13 The legislature's authority "to define what constitutes a crime in this state . . . also extends, at least within constitutional bounds, to defenses." State v. Holle, 240 Ariz. 300, 302, ¶ 9 (2016); see also State v. Bayardi, 230 Ariz. 195, 198, ¶ 13 (App. 2012) ("Defenses to criminal charges under Arizona law are statutory.") (citing A.R.S. § 13-103(A)). The legislature has specified that the justification defenses set forth in Title 13-the criminal code-may be offered as "a defense in any prosecution for an offense pursuant to this title." A.R.S. § 13-401(B) (emphasis added). Leaving the scene of a fatal accident, A.R.S. § 28-661, falls not within Title 13 but within Title 28. As this court has previously held, the express language of A.R.S. § 13-401(B) limits justification defenses to Title 13 offenses. State v. Fell, 203 Ariz. 186, 189, ¶ 11 (App. 2002); accord Bayardi, 230 Ariz. at 200, ¶ 19. Nothing in A.R.S. § 28-661, or elsewhere in Title 28, suggests that self-defense may be offered to justify leaving the scene of a fatal accident. Because the limitation of self-defense to Title 13 offenses reflects a policy decision entrusted to the legislature, whether to extend justification to A.R.S. § 28-661 must be determined by the legislature, not the courts. See State v. Gray, 239 Ariz. 475, 480, ¶ 21 (2016).

¶14 Moreover, Sulu-Kerr has not shown that limiting self-defense to Title 13 crimes infringes her constitutional rights. Although she relies on federal and state constitutional provisions enshrining the right to bear arms as a basis for extending self-defense to charges falling under Title 28, see U.S. Const. amend. II ("A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."); Ariz. Const. art. 2, § 26 ("The right of the individual citizen to bear arms in defense of himself or the state shall not be impaired ...."), she fails to explain how legislation criminalizing the use of force encroaches on the constitutional right to bear arms, cf. Calderone v. City of Chicago, 979 F.3d 1156, 1162-63 (7th Cir. 2020) (observing that carrying arms and using arms "are separate and distinct interests under the Second Amendment" and that U.S. Supreme Court precedent has not established a constitutional right to shoot someone in self-defense).

II. Defense of an Occupied Vehicle as a Justification to Aggravated Assault and Reckless Manslaughter^[3]

¶15 Sulu-Kerr argues the trial court erred by failing to instruct the jurors on the defense of an occupied vehicle justification under A.R.S. § 13-418. Asserting the instructions given "left the jury with an incorrect understanding of...