State v. Villa
| Decision Date | 14 October 2014 |
| Docket Number | No. 2 CA–CR 2013–0442.,2 CA–CR 2013–0442. |
| Citation | 236 Ariz. 63,697 Ariz. Adv. Rep. 6,335 P.3d 1142 |
| Parties | The STATE of Arizona, Appellee, v. Eslyn Adrian VILLA, Appellant. |
| Court | Arizona Court of Appeals |
OPINION TEXT STARTS HERE
Affirmed. Thomas C. Horne, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, Phoenix, By Amy M. Thorson, Assistant Attorney General, Tucson, Counsel for Appellee.
Heard Law Firm By James L. Heard, Mesa, Counsel for Appellant.
OPINION
¶ 1 Eslyn Villa was convicted of possession of a dangerous drug for sale and conspiracy following a jury trial. On appeal, he argues the trial court abused its discretion by instructing the jury on a lesser-included offense while the jury was deliberating and that doing so denied his constitutional rights to an effective closing argument. Because we find no error, we affirm.
¶ 2 In September 2012, Villa drove a vehicle containing methamphetamine and the drug then was sold to an undercover police officer. Villa initially was charged with transportation of a dangerous drug for sale and conspiracy to transport a dangerous drug for sale. The trial court instructed the jury accordingly, including possession of a dangerous drug as a lesser-included offense of transportation of a dangerous drug for sale. During jury deliberations, the court also instructed the jury on possession of a dangerous drug for sale as another lesser-included offense. Villa was convicted of the conspiracy charge and possession of a dangerous drug for sale. He was sentenced to concurrent prison terms, the longer of which is twelve years. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12–120.21(A)(1) and 13–4033(A)(1).
¶ 3 Villa first argues the trial court erred by instructing the jury on the lesser-included offense of possession of a dangerous drug for sale after the jury had begun deliberations.2 We review a trial court's decision to give a requested jury instruction for an abuse of discretion. State v. Dann, 220 Ariz. 351, ¶ 51, 207 P.3d 604, 616–17 (2009).
¶ 4 Before closing arguments, as relevant here, the jury was instructed on transportation of a dangerous drug for sale, conspiracy to transport a dangerous drug for sale, and possession of a dangerous drug as a lesser-included offense. During deliberations, the jury asked “[i]f Villa is found not guilty of Transportation of Dangerous Drug for Sale, but found guilty of Possession of Dangerous Drug, can he still be found guilty of Conspiracy also?” The parties agreed that the jury could do so.
¶ 5 The state then requested that the trial court also instruct the jury on possession of a dangerous drug for sale. The court granted the state's request over Villa's objection and instructed the jury on the new lesser-included offense. It told the jury it had “neglected” to provide the other lesser-included offense instruction originally and therefore had brought them back to provide the additional instructions. It also told the jury to consider the transportation charge first and, if it acquitted Villa or was unable to decide on that charge, it should consider the possession for sale charge and, if it acquitted Villa or was unable to decide on that charge, it then should consider possession of a dangerous drug. The jury ultimately found Villa guilty of possession of a dangerous drug for sale.
¶ 6 The state asserts that Rule 22.3, Ariz. R.Crim. P., permitted the trial court to give the additional instruction. Rule 22.3 allows a trial court to “give appropriate additional instructions” after the jury has begun deliberations. That rule, however, and the cases relying on it, do not address the issue here: whether the court may add an entirely new lesser-included offense instruction during jury deliberations and after the jury asks a question indicating it might not convict of the greater offense. See, e.g., State v. Harlow, 219 Ariz. 511, ¶¶ 4–11, 200 P.3d 1008, 1009–11 (App.2008) (); State v. Walker, 185 Ariz. 228, 242–43, 914 P.2d 1320, 1334–35 (App.1995) (), superseded by statute on other grounds as recognized by State v. Ofstedahl, 208 Ariz. 406, ¶ 5, 93 P.3d 1122, 1123–24 (App.2004); State v. Govan, 154 Ariz. 611, 613, 744 P.2d 712, 714 (App.1987) ().
¶ 7 No Arizona case has addressed the issue of whether a court may add a new lesser-included offense instruction for the jury's consideration under these circumstances. We therefore turn to case law from other jurisdictions to resolve the issue. See State v. Emerson, 171 Ariz. 569, 571, 832 P.2d 222, 224 (App.1992) ().
¶ 8 Among the courts that have addressed the issue presented here, nearly all “have expressed some concern with this procedure.” State v. Thurmond, 270 Wis.2d 477, 677 N.W.2d 655, ¶ 14 (Wis.Ct.App.2004); see also, e.g., United States v. Welbeck, 145 F.3d 493, 498 (2d Cir.1998); Rush v. State, 239 Ark. 878, 395 S.W.2d 3, 7–8 (1965); People v. Carron, 37 Cal.App.4th 1230, 44 Cal.Rptr.2d 328, 333 (1995); People v. Jennings, 22 Cal.App.3d 945, 99 Cal.Rptr. 739, 741 (1972); People v. Stouter, 142 Cal. 146, 75 P. 780, 781 (1904); State v. LaPierre, 754 A.2d 978, ¶ 21 (Me.2000); State v. Amos, 553 S.W.2d 700, 703, 706 (Mo.1977); State v. Jones, 214 N.J.Super. 68, 518 A.2d 496, 499 (N.J.Super.Ct.App.Div.1986); Garza v. State, 55 S.W.3d 74, 77–78 (Tex.Ct.App.2001); State v. Anderson, 117 W.Va. 265, 185 S.E. 212, 213–14 (1936). We agree with the view stated in LaPierre that “[a] reinstruction presenting for the first time choices for lesser-included offenses not presented in the initial instructions, if proper at all, would be a rare event, only done in exceptional circumstances.” 754 A.2d 978, ¶ 21.
¶ 9 In examining these cases, “[t]he weight of state authority holds that ‘it would not be appropriate to adopt a per se rule which would declare the belated giving of any [lesser-included offense] instruction to be prejudicial error.’ ” Welbeck, 145 F.3d at 496–97, quoting Amos, 553 S.W.2d at 705 (alteration in Welbeck); but see People v. Gramc, 271 Ill.App.3d 282, 207 Ill.Dec. 559, 647 N.E.2d 1052, 1056 (1995) (), abrogated on other grounds by People v. Garcia, 188 Ill.2d 265, 242 Ill.Dec. 295, 721 N.E.2d 574 (1999); Miller v. State, 195 Ga.App. 89, 392 S.E.2d 334, 336 (1990) (). Rather, the propriety of such a procedure is dependent upon “the facts and circumstances of each trial” and whether the defendant would be unfairly prejudiced. Welbeck, 145 F.3d at 497.
¶ 10 In many of the cases reversing convictions where lesser-included offenses were provided first during jury deliberations, the new instruction was prompted when the jury sought further instructions or advice from the trial court after announcing it was either stalled or deadlocked. See Rush, 395 S.W.2d at 6–7; Jennings, 99 Cal.Rptr. at 740–41; Stouter, 75 P. at 780–81; Amos, 553 S.W.2d at 704; Jones, 518 A.2d at 497–98; Garza, 55 S.W.3d at 76; Anderson, 185 S.E. at 213–14; Thurmond, 677 N.W.2d 655, ¶ ¶ 6–8. Courts have found a significant risk of prejudice in this situation.
¶ 11 For example, in Thurmond, the jury initially was instructed that the defendant was charged with first-degree sexual assault and attempted armed robbery. Id. ¶ 7. During deliberations, the jury requested instructions on lesser-included offenses, which the trial court initially rebuffed. Id. ¶ 8. The jury later informed the court it was deadlocked and “needed a new way to deliberate.” Id. ¶¶ 6, 21. The state moved to instruct the jury on lesser-included offenses and, after fourteen hours of deliberations, the court agreed and instructed the jury on the new lesser-included offenses. Id. ¶¶ 7–8. Less than two hours after receiving this new instruction, the jury convicted the defendant of one of those lesser-included offenses. Id. ¶ 9.
¶ 12 In reversing the conviction, the Wisconsin Court of Appeals first noted that the jury reasonably could have seen the trial court's “change of heart” on providing the lesser-included instructions “ ‘as the court's recommendation to resolve the impasse by agreeing to the lesser offense.’ ” Id. ¶ 19, quoting Welbeck, 145 F.3d at 497. Additionally, the relative speed with which the jury returned the guilty verdict suggested the jury “may have been driven more by [its] desire to be released from its duty than its having reached a fair decision.” Id. ¶ 20. The jury's note that it “needed a new way to deliberate” was particularly concerning and suggested that the verdict was used as a “way of ending their deadlock rather than reaching a unanimous decision.” Id. ¶ 21. Consequently, the court found the instruction improper and the defendant entitled to a new trial. Id. ¶ 26.
¶ 13 Similarly, in Jones, the defendant was charged with three offenses, and the trial court did not instruct the jury initially on any lesser-included offenses. 518 A.2d at 497. The jury spent over a day deliberating before announcing it had come to a verdict on one of the charges, but was deadlocked on the other two. Id. at 497–98. Shortly after that announcement, the court sua sponte instructed the jury on a lesser-included offense of one of the two charges causing difficulty. Id. at 498. Thirty minutes later the jury returned a guilty verdict...
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