Court of Appeals of Arizona, First Division, Department D
Appeal from the Superior Court in Maricopa County Cause No. CR2010-106738 The Honorable Susanna C. Pineda, Judge
Thomas C. Horne, Arizona Attorney General, Joseph T. Maziarz, Chief Counsel Criminal Appeals Section Attorneys for Appellee
Ballecer & Segal, LLP, Natalee E. Segal And Law Offices of Neal W. Bassett, Neal W. Bassett Attorneys for Appellant
MICHAEL J. BROWN, Presiding Judge
¶1 Berry Williams was tried and convicted for several crimes, including first-degree felony murder and second-degree murder. The only issue before us is whether Williams could properly be convicted and sentenced for both murder charges based on the death of one person. Consistent with this court's conclusion in State v. Canion, 199 Ariz. 227, 16 P.3d 788 (App. 2000), we vacate Williams' conviction and sentence for second-degree murder.
¶2 On the night of February 1, 2010, Williams attended a party in west Phoenix where he met C.H. At some point during the evening, C.H. drove Williams to a nearby convenience store. Williams entered the store, stole four cases of beer, and ran back to C.H.'s vehicle. C.H. intended to drive Williams back to the party, but while stopped at a red light, Williams jumped out of the car and moved into the driver's seat. Two police officers in a patrol car on the opposite side of the intersection observed Williams and C.H. change seats. Williams then sped away and the officers followed. After a lengthy pursuit, Williams collided with another vehicle. The driver of the other vehicle died from injuries sustained in the collision.
¶3 As pertinent here, the State charged Williams with first-degree felony murder (alleging unlawful flight as the underlying felony), second-degree murder (alleging extreme indifference to human life), and unlawful flight from a law enforcement vehicle in violation of Arizona Revised Statutes ("A.R.S.") sections 13-1105 (2013), -1104 (2013), and 28-622.01 (2013), respectively. At trial, a jury found Williams guilty as charged and the trial court subsequently imposed concurrent sentences of life without eligibility of release for twenty-five years' for felony murder, twenty-two years' imprisonment for second-degree murder, and two years' imprisonment for unlawful flight. Williams timely appealed and we have jurisdiction under A.R.S. § 12-2101(A)(1) (2013).
¶4 Williams does not dispute that the State could properly charge him with committing the crime of murder based on more than one theory. See State v. Gerlaugh, 134 Ariz. 164, 168, 654 P.2d 800, 804 (1982) ("[I]n Arizona, first-degree murder is only one crime whether it is premeditated murder or a felony murder."); State v. Tsosie, 171 Ariz. 683, 685, 832 P.2d 700, 702 (App. 1992) ("It is within the sound discretion of the prosecutor to determine whether to file criminal charges and which charges to file."). Instead, Williams contends the trial court should have vacated his second-degree murder conviction based on Canion. Because he failed to raise this argument in the trial court, however, our review is limited to determining whether fundamental error occurred. See State v. Trujillo, 227 Ariz. 314, 321, ¶ 32, 257 P.3d 1194, 1201 (App. 2011). "To prevail under this standard of review, [Williams] must establish both that fundamental error exists and that the error in his case caused him prejudice." State v. Henderson, 210 Ariz. 561, 567, ¶ 20, 115 P.3d 601, 607 (2005).
¶5 In Canion, the defendant was charged with first-degree felony murder and first-degree premeditated murder. 199 Ariz. at 229, ¶ 5, 16 P.3d at 790. A jury convicted him of felony murder and second-degree murder as a lesser-included offense of premeditated murder. Id. at 229-30, ¶¶ 6-7, 16 P.3d at 790-91. The trial court determined that the convictions "merged" and therefore sentenced the defendant only on the greater offense, felony murder. Id. at 230, ¶ 8, 16 P.3d at 791. On appeal, we construed one of the defendant's arguments as asserting it was "improper to allow the jury to render guilty verdicts on both felony murder and second-degree murder of the same victim, and that such verdicts require a retrial." Id. at 231, ¶ 15, 16 P.3d at 792. We found that a retrial was not necessary, explaining that the jury's verdicts for felony murder and second-degree murder were not inconsistent because the State had proven the elements of both crimes. Id. at 232, ¶ 20, 16 P.3d at 793. We also explained, however, that the result of the crimes was the death of one person for "which the trial court refused, and prudently so, to impose multiple sentences." Id. We then concluded that "[b]ecause the better procedure would have been to simply vacate the second-degree murder conviction, as opposed to 'merging' the two convictions, we vacate[d] [the defendant's] second-degree murder conviction." Id. Applying similar reasoning here, we conclude that Williams' conviction and sentence for second-degree murder must be vacated.
¶6 The State discounts the applicability of Canion because in that case the defendant was charged with felony murder and premeditated murder. We acknowledge procedural differences between this case and Canion; however, the importance is the similarity of the shared question—whether a trial court should vacate a lesser murder conviction when there is only one victim. And on that question, Canion directed the trial court to vacate the lesser conviction of second-degree murder even though the court did not impose a separate sentence on that conviction. In this case, Williams was convicted and sentenced for both felony and second-degree murder for the same death. The State does not contend that Canion was wrongly decided and we decline to depart from its reasoning here. See State v. Hickman, 205 Ariz. 192, 200, ¶ 37, 68 P.3d 418, 426 (2003) ("Respect for precedent demands 'that we not lightly overrule precedent and we do so only for compelling reasons.'").
¶7 As Williams asserts, this court's decision in Canion is consistent with the majority of jurisdictions that have addressed the propriety of multiple murder convictions for a single homicide. See, e.g., Ervin v. State, 991 S.W.2d 804, 807 (Tex. Crim. App. 1999) (finding that "a decisive majority of jurisdictions that have addressed the issue have held that a trial court cannot impose multiple convictions and sentences for variations of murder when only one person was killed."); Gray v. State, 463 P.2d 897, 911-12 (Alaska 1970) (recognizing it would be a "strange system of justice that would allow each appellant to be sentenced to two life sentences for the killing of one person."); Martinez Chavez v. State, 534 N.E.2d 731, 739 (Ind. 1989) (making a sua sponte determination to vacate one of two murder convictions because only one death occurred and thus the defendant could not be sentenced on both convictions).
¶8 The State also asserts that because felony murder and second-degree murder have different statutory elements and A.R.S. § 13-116 (2013) allows for concurrent sentences for conduct "punishable in different ways by different sections of the laws, " it was permissible for the trial court to convict and sentence Williams for both crimes. The State does not provide, however, any authority suggesting the Arizona Legislature intended that a defendant convicted of multiple homicide offenses for the death of one victim is to be punished for each charged offense. See Ball v. United States, 470 U.S. 856, 864 (1985) (concluding that where Congress did not intend punishment under two statutes, "the only remedy consistent with congressional intent is for the District Court, where the sentencing responsibility resides, to exercise its ...