State v. Vassell

• Decision Date: 24 September 2015
• Docket Number: No. 2 CA–CR 2015–0004.,2 CA–CR 2015–0004.
• Citation: 359 P.3d 1025,238 Ariz. 281,722 Ariz. Adv. Rep. 6
• Parties: STATE of Arizona, Appellee, v. Ronald VASSELL, Appellant.
• Court: Arizona Court of Appeals

238 Ariz. 281

359 P.3d 1025

722 Ariz. Adv. Rep. 6

STATE of Arizona, Appellee

v.Ronald VASSELL, Appellant.

No. 2 CA–CR 2015–0004.

Court of Appeals of Arizona, Division 2.

Sept. 24, 2015.

Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, Phoenix, Counsel for Appellee.

Peter B. Keller, Tucson, Counsel for Appellant.

Presiding Judge MILLER authored the opinion of the Court, in which Judge ESPINOSA concurred and Chief Judge ECKERSTROM specially concurred.

OPINION

MILLER, Presiding Judge:

¶ 1 After a jury trial, Ronald Vassell was convicted of conspiracy to possess marijuana for sale, possession of a deadly weapon during a felony drug offense, and endangerment arising out of the discharge of a firearm during the execution of a search warrant. He raises a single issue on appeal—whether the trial court erred by declining his request to instruct the jury that his shooting at police officers serving the search warrant may have been justified. For the reasons that follow, we affirm the court's ruling and Vassell's convictions.

Facts

¶ 2 We view the facts in the light most favorable to Vassell as the party requesting the instruction. See State v. King, 225 Ariz. 87, ¶ 13, 235 P.3d 240, 243 (2010). In November 2012, Tucson police obtained a search warrant to investigate suspected narcotics activity in a residence. Because of the dangers associated with a firearm in this investigation, the magistrate issued a “no-knock” warrant that authorized the police to break into the residence.¹ A SWAT team comprised of ten officers was directed to execute the warrant. The SWAT officers wore uniforms that had the word “POLICE” on the front, back, side, and shoulder.

¶ 3 The officers testified that SWAT members receive specialized training, possess particular skills, and carry extra equipment. They operate in two-person teams, each with a particular assignment. In this case, their goal was to secure a quick entry into the house, but immediately announce their status as police officers entering the residence to serve a search warrant. The “door” officer tried the front door, found it to be locked, and then used a metal battering ram to quickly open the door. As the door was struck with the battering ram, all ten SWAT officers began yelling out, “Tucson Police, search warrant, get on the ground,” and they continued to do so while they were inside. An officer also activated a loudspeaker device that repeatedly announced “Tucson Police Department, search warrant” in both English and Spanish, at a volume loud enough to be heard within the house.

¶ 4 The door officer had to give the door “a couple hits” to open it fully, because a couch was partially blocking the door. The first officer to enter the house, who was the designated “point” testified:

[T]he first time [the ram] hit the door, I began making announcements, “police search warrant, police, search warrant,” and I keep repeating those until the door comes open. And then after the door came open and I began my entry, I transitioned my commands to “police, get down,” to give direction to anybody inside to get down on the floor.

The house was dark, and the police used “pretty bright flashlights” affixed to their weapons to see. When the point officer entered, he saw a man later identified as Vassell “semi-crouched” on the couch and beginning to stand up. The point officer saw that Vassell was holding a rifle and immediately yelled, “[P]olice, drop it.” Vassell ran toward the hallway, lifting the rifle up over his shoulder so that it pointed back toward the officers as he went.² In the face of what the point officer identified as a lethal threat to officer safety, he disengaged the safety on his own rifle. He attempted to deploy a flash bang device into the hallway to provide cover for the other officers, but his finger slipped and he accidentally fired one shot from his gun. He then reengaged the gun's safety and successfully deployed the flash bang down the hallway.

¶ 5 The point officer informed the sergeant that he had seen a man with a rifle run into the hallway. The sergeant commanded the officers to exit the house. The point officer then heard the first gunshot coming from somewhere down the hall. He held his position while the other officers exited and then, as he turned to exit the house himself, he heard a second gunshot from down the hall. The door officer testified that the time from the moment the door was breached until he heard the gunshots and the flash bang in the hallway was “maybe about 15 to 20 seconds” altogether. The point officer testified that the time when he entered the house until he accidentally fired his weapon was about ten to fifteen seconds. A third officer testified, “It was all very, very quick.”

¶ 6 Police officers surrounded the house and waited. After several hours, Vassell surrendered without further incident. No one else was in the house that night. A subsequent search uncovered more than fourteen pounds of marijuana, as well as various indicia of marijuana packaging and shipping. Later analysis determined the two shots from the hallway had been fired from a .223–caliber rifle from inside the hall bathroom. A .223–caliber rifle was found leaning against a wall in another room.

¶ 7 At trial, a police officer testified that criminals frequently impersonate police officers when staging home invasions. At the close of evidence, defense counsel requested a jury instruction on the defense of justification, arguing there was a question of fact as to whether Vassell had fired the two shots in self-defense against the perceived use of unlawful physical force. The trial court denied this request, ruling the evidence did not support a justification instruction because the police had used only lawful force. Vassell was convicted and filed a timely appeal. We have jurisdiction pursuant to A.R.S. §§ 12–120.21(A)(1), 13–4031, and 13–4033(A)(1).

Discussion

¶ 8 Vassell contends the trial court erred when it denied his request for a justification instruction on the endangerment count. We will not disturb a trial court's decision to refuse a jury instruction absent “a clear abuse of ... discretion and resulting prejudice.” State v. Ruggiero, 211 Ariz. 262, ¶ 6, 120 P.3d 690, 692 (App.2005).

¶ 9 A party is entitled to a jury instruction on any theory of the case which the evidence reasonably supports. State v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995). “ ‘[T]he slightest evidence’ ” of justification requires that a defendant be granted a justification instruction, Ruggiero, 211 Ariz. 262, ¶ 10, 120 P.3d at 692, quoting State v. Hussain, 189 Ariz. 336, 337, 942 P.2d 1168, 1169 (App.1997) ; however, the instruction need not be given “ ‘unless it is reasonably and clearly supported by the evidence.’ ” Id. ¶ 10, quoting State v. Walters, 155 Ariz. 548, 553, 748 P.2d 777, 782 (App.1987) ; see also State v. Strayhand, 184 Ariz. 571, 587–88, 911 P.2d 577, 593–94 (App.1995) (instruction required if there is “evidence upon which the jury could rationally sustain the defense”). The slightest evidence —not merely an inference making an argument possible—is required because speculation cannot substitute for evidence. Cf. In re Harber's Estate, 102 Ariz. 285, 294, 428 P.2d 662, 671 (1967) ; State v. Almaguer, 232 Ariz. 190, ¶ 19, 303 P.3d 84, 91 (App.2013).

¶ 10 Vassell would have been “justified in threatening or using deadly physical force against another ... [w]hen and to the degree a reasonable person^[ [^{3 ]} would believe that deadly physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly physical force.” A.R.S. § 13–405(A)(2). But the threat or use of physical force is not justified “[t]o resist an arrest that the person knows or should know is being made by a peace officer ... whether the arrest is lawful or unlawful, unless the physical force used by the peace officer exceeds that allowed by law.” A.R.S. § 13–404(B)(2) ; State v. Fontes, 195 Ariz. 229, ¶¶ 11–12, 986 P.2d 897, 900–01 (App.1998).

¶ 11 On appeal, as in the trial court, Vassell does not argue that the police used unlawful or excessive physical force. Rather, he maintains only that there was a question of fact as to whether he knew or should have known that the people entering the home were peace officers as opposed to home invaders. Where, as here, a defendant claims self-defense to justify his use of physical force against a peace officer who was using lawful force, the slightest evidence that the defendant actually believed the individual was not a peace officer is required to support a justification instruction. See, e.g., Model Penal Code § 3.04 explanatory note (Am. Law Inst.2001) (“actor's actual belief is sufficient” to support self-defense justification) (emphasis added). Mere speculation that a defendant might have believed the individual not to be a peace officer is insufficient. Compare State v. Salazar, 24 Ariz.App. 472, 476, 539 P.2d 946, 950 (1975) (aggravated battery defendant not entitled to instruction on lesser-included offense of battery where “no evidence that the defendant did not know the officer he struck was a police officer”) (emphasis added), with State v. Skinner, 118 Ariz. 517, 519–20, 578 P.2d 196, 198–99 (App.1978) (aggravated battery defendant entitled to instruction on lesser-included offense of battery where he actually denied knowing that victim was plain-clothes police officer attempting to lawfully arrest him).

¶ 12 Vassell's mistaken identity argument finds no support in the record. For instance, there is no evidence that he believed home invaders sometimes impersonate police,⁴ nor that he actually thought the SWAT team members to be home invaders when he fired two shots from the hall bathroom. The absence of “ ‘the slightest evidence’ ” to that effect is dispositive. Ruggiero, 211 Ariz. 262, ¶ 10, 120 P.3d at 692–93, quoting Hussain, 189 Ariz. at 337, 942 P.2d at 1169.

¶ 13 Our concurring...