Court of Appeals of Arizona, Second Division, Department B
Not for Publication Rule 111, Rules of the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR20093238001 Honorable Teresa Godoy, Judge Pro Tempore
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and Jonathan Bass Tucson Attorneys for Appellee
Lori J. Lefferts, Pima County Public Defender By Kristine Maish Tucson Attorneys for Appellant.
PHILIP G. ESPINOSA, Judge
¶1 Andre Lightsey-Copeland was charged with first-degree murder, and a jury convicted him of the lesser offense of second-degree murder. The trial court sentenced him to a mitigated sentence of twelve years' imprisonment and ordered him to pay restitution. On appeal, Lightsey-Copeland argues the trial court erred in failing to instruct the jury regarding both his right to be present throughout his trial and on third-party culpability. He also challenges the trial court's evidentiary ruling precluding his use of bystander comments immediately following the shooting. For the following reasons, we affirm the conviction and sentence but vacate the criminal restitution order (CRO) entered at sentencing.
Factual and Procedural Background
¶2 "On appeal, we view the facts in the light most favorable to upholding the verdict and resolve all inferences against the defendant." State v. Klokic, 219 Ariz. 241, n.1, 196 P.3d 844, 845 n.1 (App. 2008). On July 29, 2009, Chrisean Charles had a dispute with David Tyne at a strip club. Tyne believed Charles had been "disrespectful" of either him or of Tyne's girlfriend, who was a dancer at the club.
¶3 The next day, Charles drove to the club with his girlfriend Jennifer, also a dancer at the club, and learned that Tyne had him followed home. Charles became "uneasy" and "scared, " and concerned for Jennifer's safety and that of the couple's young daughter. Charles picked up his cousin, Lightsey-Copeland, and returned to the club. Charles weighed over 400 pounds and is six feet, four inches tall; Lightsey-Copeland weighed about 150 pounds and is approximately five feet, five inches tall.
¶4 Outside the club's entrance, Tyne approached the two men and asked one or both if they "had a problem." Minutes later seven shots were fired and Tyne lay wounded on the ground. Witnesses reported seeing a thin black man with his arm extended and raised, and a gun in his hand, who then fled on foot. They also saw a tall, heavyset black man run to a white car and speed off Police arrived at the scene within minutes. Tyne later died as a result of several gunshot wounds.
¶5 Lightsey-Copeland was charged with one count of first-degree murder and was convicted and sentenced as outlined above. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
¶6Lightsey-Copeland asserts that his constitutional rights to a fair trial and due process were violated when the trial court refused to instruct the jury regarding his right to be present at his trial, and also by failing to instruct the jury sua sponte regarding third-party culpability. We review a trial court's denial of requested jury instructions for abuse of discretion. State v. Moody, 208 Ariz. 424, ¶ 197, 94 P.3d 1119, 1162 (2004). We will not reverse a conviction unless the defendant ...