Court of Appeals of Arizona, First Division, Department B
Not for Publication – Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County Cause No. CR2010-165072-001 The Honorable Randall H. Warner, Judge
Thomas C. Horne, Attorney General Phoenix by Joseph T. Maziarz, Acting Chief Counsel, Criminal Appeals/Capital Litigation Section and W. Scott Simon, Assistant Attorney General Attorneys for Appellee.
James J. Haas, Maricopa County Public Defender Phoenix by Mikel Steinfeld, Deputy Public Defender Attorneys for Appellant.
MAURICE PORTLEY, Judge.
¶1 Defendant Joseph Andrew Davy appeals his conviction and sentence for attempted armed robbery, a dangerous felony. He asserts the trial court erred by giving a flight and concealment instruction to the jury. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 The victim left his house to go to church on Sunday morning, December 12, 2010. Davy, wearing a ski mask, gloves and dark clothing, demanded the keys from the victim, and attacked and repeatedly hit the victim with a hammer. The victim, however, was able to wrestle free. Davy ran away after a truck pulled up and the man inside started to intervene. While the other person in the truck was calling 911, the man from the truck watched the assailant flee and later described him as wearing a black hooded sweatshirt, black beanie, and camouflage pants.
¶3 A police officer subsequently located Davy, clad in a t-shirt and shorts, in an alley in the victim's neighborhood. The officer observed that Davy was carrying a partially open backpack containing a camouflage-patterned material and asked Davy if he could search the backpack. Davy consented, and the officer found a black ski mask, black sweatshirt, camouflage pants, a white baseball cap, a hammer holder, a knife, gloves, a gun, and a stun gun. Subsequently, a forensic scientist found Davy's DNA on the pants' waistband and white baseball cap. The scientist also found the victim's DNA on the pants and on a clip attached to the pants.
¶4 Davy was indicted, tried, convicted, and sentenced for attempted armed robbery. Davy now appeals.
¶5 Davy contends that the court erred by giving a flight or concealment instruction over his trial objection. He argues that the instruction was an impermissible comment on the evidence, relieved the State of its burden of proof, and was unnecessary. We review the decision to give a jury instruction for an abuse of discretion and "consider the jury instructions as a whole to determine whether the jury received the information necessary to arrive at a legally correct decision." State v. Dann, 220 Ariz. 351, 363-64, ¶ 51, 207 P.3d 604, 616-17 (2009).
¶6 A flight or concealment instruction is proper if there is "evidence of open flight, as upon pursuit, or concealment, and the manner of leaving the scene . . . reveal[s] a consciousness of guilt." State v. Celaya, 135 Ariz. 248, 256, 660 P.2d 849, 857 (1983). Because "[t]he key inquiry is whether the defendant engaged in some type of eluding behavior designed to camouflage his participation in a crime, thus manifesting a consciousness of guilt, " State v. Cutright, 196 Ariz. 567, 570, ¶ 12, 2 P.3d 657, 660 (App. 1999), disapproved of on other grounds by State v. Miranda, 200 Ariz. 67, 22 P.3d 506 (2011), a flight or concealment instruction is proper despite a defendant's alternative explanation for his flight or concealment so long as the evidence supports a consciousness of guilt. See State v. Hunter, 136 Ariz. 45, 49, 664 P.2d 195, 199 (1983).
¶7 Here, the two people in the truck who stopped to intervene saw a man, generally matching Davy's description, run from the crime scene while wearing what appeared to be a backpack. The police found Davy in a nearby alley, wearing only a t-shirt and shorts, sweating, and carrying a backpack. The backpack, which Davy told the arresting officer was his, contained clothing matching the description of the attacker's clothing. After ...