State v. Wall

• Decision Date: 12 January 2006
• Docket Number: No. CR-05-0089-PR.,CR-05-0089-PR.
• Citation: 126 P.3d 148,212 Ariz. 1
• Parties: STATE of Arizona, Appellee, v. Emmet Darnell WALL, Appellant.
• Court: Arizona Supreme Court

Page 148

126 P.3d 148

212 Ariz. 1

STATE of Arizona, Appellee, v. Emmet Darnell WALL, Appellant.

No. CR-05-0089-PR.

Supreme Court of Arizona, En Banc.

January 12, 2006.

Terry Goddard, Arizona Attorney General by Randall M. Howe, Chief Counsel Criminal Appeals Section, Michael T. O'Toole, Assistant Attorney General, Attorneys for State of Arizona.

Robert J. Hooker, Pima County Public Defender by Brian X. Metcalf, Deputy Public Defender, Attorneys for Emmet Darnell Wall.

OPINION

BERCH, Vice Chief Justice.

¶ 1 This case concerns the trial court's refusal to give a lesser-included offense instruction requested by a defendant who had asserted an all-or-nothing defense. We conclude that a defendant does not forfeit his right to a lesser-included offense instruction by asserting an all-or-nothing defense if the evidence in the record is sufficient to support the instruction. We therefore reverse the judgment of conviction, vacate the decision of the court of appeals, and remand the case for retrial.

I. FACTS AND PROCEDURAL BACKGROUND

¶ 2 On July 7, 2003, Emmet Wall, Berben Walker, and Fernita Henry went to a convenience store in Tucson. Wall entered the store and asked to speak to the manager about an incident that he claimed had occurred the day before. Wall would not discuss the matter in the store, suggesting instead that he and the manager step outside to talk. The manager agreed. Once outside, Wall tried to convince the manager to move to the side of the store, but the manager refused.

¶ 3 While Wall was outside speaking to the manager, Henry purchased a bottle of water and began questioning the store clerk about lighters. At that time, the manager's wife returned from the bathroom to find Walker in the store's office, looking into an open safe. When she screamed, Walker grabbed her around the neck, threw her against the door jamb, and fled. As Walker ran from the store, Wall raised his voice and continued to talk to the manager outside, seemingly in an attempt to divert the manager's attention. But the manager chased Walker, eventually catching and detaining him until police arrived. In Walker's clothing, the police found $80.

¶ 4 Wall was arrested several minutes after Walker ran out of the store, as Wall and Henry were starting to drive away. He initially denied knowing either Walker or Henry, but later admitted that he knew both of them.

¶ 5 Wall was indicted on one charge of robbery or being an accomplice to robbery. Throughout the trial, Wall denied having anything to do with the crime. Indeed, he claimed to have had no knowledge of the robbery until Walker ran out of the store.

¶ 6 While settling jury instructions, the trial judge asked if Wall wanted a lesser-included offense instruction on attempted robbery because the evidence did not clearly show whether Walker took any money from the store. Wall declined, saying that he preferred to "go on the indictment, all or nothing." The State then requested the attempted robbery instruction.

¶ 7 In response to the court's decision to give the attempted robbery instruction, the next morning, before summation, Wall requested that the court give a lesser-included offense instruction on attempted theft.¹ Wall asserted that the jury could interpret his attempt to distract the store manager as an effort to allow Walker to "take the money" without threatening or using any force. The judge acknowledged "that the jury could find that the plan here was to not necessarily commit a robbery involving force or threat, but [to] commit a theft by ruse." But the State countered that Wall was legally responsible for all of his accomplices' foreseeable acts, which in this case included robbery. Persuaded by the State's argument, the court declined to give the attempted theft instruction Wall had requested.

¶ 8 The jury convicted Wall of attempted robbery, a class five felony. The court sentenced him to an aggravated term of 5.5 years, based on three aggravating factors: the presence of accomplices, Wall's criminal record, and the emotional impact of the crime on the victims. See Ariz.Rev.Stat. ("A.R.S.") § 13-702(C) (2002) (listing aggravating factors).

¶ 9 Wall appealed the trial court's refusal to give the lesser-included offense instruction. By memorandum decision, the court of appeals affirmed the trial court's decision, but on grounds different from those used by the trial court. The court of appeals interpreted State v. Van Adams, 194 Ariz. 408, 984 P.2d 16 (1999), as precluding a lesser-included offense instruction if a defendant pursues an all-or-nothing defense, such that he is either guilty of the charged offense or not guilty at all. Because Wall denied any knowledge of the crime, the court of appeals decided that the trial court's refusal to give the attempted theft instruction was proper under the Van Adams rationale.

¶ 10 In a concurring opinion, Judge Eckerstrom acknowledged that Van Adams appears to say that a defendant who pursues an all-or-nothing defense is not entitled to a lesser-included offense instruction. But the judge was troubled by the application of the rule in this case. He noted that Wall strenuously requested the theft instruction before summation, and the instruction Wall sought was supported by a "plausible interpretation of the evidence."

¶ 11 We granted review to decide whether a defendant automatically forfeits his right to a lesser-included offense instruction by asserting an all-or-nothing defense. We have jurisdiction in this case pursuant to Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24 (2003).

II. DISCUSSION

¶ 12 This court reviews a trial court's denial of a requested jury instruction for an abuse of discretion. State v. Anderson, 210 Ariz. 327, 343, ¶ 60, 111 P.3d 369, 385 (2005). An error of law committed in reaching a discretionary conclusion may, however, constitute an abuse of discretion. State v. Green, 200 Ariz. 496, 502, ¶ 28, 29 P.3d 271, 277 (2001).

A. Requirements for Lesser-Included Offense Instructions

¶ 13 Arizona Rule of Criminal Procedure 23.3 requires the trial judge to provide the jury with verdict forms "for all offenses necessarily included in the offense charged, an attempt to commit the offense charged or an offense necessarily included therein, if such attempt is an offense." If requested to do so and the evidence supports it, the trial judge must also instruct the jurors on all offenses "necessarily included" in the offense charged. Ariz. R.Crim. P. 21.3(c) cmt.; State v. Celaya, 135 Ariz. 248, 251, 660 P.2d 849, 852 (1983).

¶ 14 Although the terms are often used interchangeably, a "lesser included" offense is not always a "necessarily included" offense for purposes of Rule 23.3. State v. Dugan, 125 Ariz. 194, 195, 608 P.2d 771, 772 (1980). An offense is "lesser included" when the "greater offense cannot be committed without necessarily committing the lesser offense." Id. But an offense is "necessarily included," and so requires that a jury instruction be given, only when it is lesser included and the evidence is sufficient to support giving the instruction. Id. In other words, if the facts of the case as presented at trial are such that a jury could reasonably find that only the elements of a lesser offense have been proved, the defendant is entitled to have the judge instruct the jury on the lesser-included offense. Id. (citing Sansone v. United States, 380 U.S. 343, 351, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965)).

¶ 15 In this case, Wall maintains that the trial court should have given an attempted theft instruction because attempted theft is a lesser-included offense of attempted robbery and evidence in the record would have supported a finding of attempted theft. Arizona law defines theft as knowingly "[c]ontrol[ling] property of another with the intent to deprive the other person of [the] property." A.R.S. § 13-1802(A)(1). Robbery adds the additional elements that the property must be taken from a "person or [the person's] immediate presence," and the taking must involve the use or threat of force to coerce the surrender of the property. A.R.S. § 13-1902(A) (2001). Under our statutory scheme, theft is thus a lesser-included offense of robbery because the greater offense of robbery cannot occur unless a theft also occurs. Celaya, 135 Ariz. at 252, 660 P.2d at 853. Similarly, attempted theft is a lesser-included offense of attempted robbery. See State v. Felix, 153 Ariz. 417, 420, 737 P.2d 393, 396 (App.1986).

¶ 16 The rule requiring instruction on lesser-included offenses is designed to prevent a jury from convicting a defendant of a crime, even if all of its elements have not been proved, simply because the jury believes the defendant committed some crime. As the Supreme Court explained: "Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction." Beck v. Alabama, 447 U.S. 625, 634, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980) (quoting Keeble v. United States, 412 U.S. 205, 212-13, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973)). Giving a lesser-included offense instruction mitigates that risk. Id. at 637, 100 S.Ct. 2382.

¶ 17 Arizona cases have consistently required a lesser-included offense instruction if it is supported by the evidence. See Celaya, 135 Ariz. at 253, 660 P.2d at 854 ("Since the evidence before the jury would have supported a conviction of theft and an acquittal of robbery, Celaya was entitled to the requested lesser-included instruction."); Dugan, 125 Ariz. at 196, 608 P.2d at 773 (to same effect); State v. McPhaul, 174 Ariz. 561, 564, 851 P.2d 860, 863 (App.1992) (to same effect).

¶ 18 We deem evidence sufficient to require a lesser-included offense instruction if two conditions are met. The jury must be able to find (a) that the State failed to prove an element of the greater offense and (b) that the evidence is sufficient to...