Court of Appeals of Arizona, Second Division, Department A
Not for Publication Rule 111, Rules of the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR20103122001 Honorable Paul E. Tang, Judge.
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and Nicholas Klingerman Tucson Attorneys for Appellee.
Lori J. Lefferts, Pima County Public Defender By Michael J. Miller Tucson Attorneys for Appellant.
MICHAEL MILLER, Judge.
¶1 Jarrett Carter was convicted after a jury trial on one count of first degree murder and two counts of attempted armed robbery. Carter argues juror misconduct requires a new trial and, alternatively, all sentences should have run concurrently. He also argues the attempted armed robbery charges were duplicitous and Arizona's felony murder statute is unconstitutional. Finding no error, we affirm the convictions and sentences, but vacate the criminal restitution order.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to sustaining the jury's verdict. State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). In August 2010, Carter accompanied Mario Acedo to sell marijuana to victim C.V. C.V. and his passenger, CM., drove to the meeting location in C.V.'s car. Acedo got in the back seat of C.V.'s vehicle while Carter remained outside. Acedo then displayed a weapon and said, "[W]hat you got?" C.V. answered, "I don't know, I don't know what I got." Acedo got out of the car, pointed the gun back in through the passenger window and demanded C.V.'s cell phone. Carter broke the driver's side window and reached for the car keys, cutting his arm on glass. At the same time, Acedo shot CM. through the passenger-side window. CV. managed to escape in the car and transport CM. to the hospital. CM. gave a statement to police but later died in surgery. The police investigation led to Carter, who had large cuts on one arm, and whose DNA matched blood found in the car.
¶3 Carter was convicted of first degree felony murder and two counts of attempted armed robbery. The trial court denied his motion for a new trial and imposed concurrent sentences of life on the murder count and 11.25 years for the attempted armed robbery of CM. It imposed a consecutive term of 11.25 years for the attempted armed robbery of C.V. Carter filed a delayed appeal so as to include his unsuccessful motion requesting the court run all sentences concurrently.
I. Improper Juror Communications
¶4 Carter first argues that the trial court erred in denying his motion for a new trial after a juror ("Juror Two") violated the admonition against improper communications on several occasions. He contends Juror Two's violations of the admonition, his failure to self-report, and the failure of other jurors to report the communications constituted perjury, suggested consideration of outside evidence, and deprived him of a fair trial.
¶5 We review the trial court's denial of a motion for a new trial under Rule 24.1, Ariz. R. Crim. P., for an abuse of discretion. State v. Rutledge, 205 Ariz. 7, ¶ 15, 66 P.3d 50, 53 (2003). "An 'abuse of discretion' is discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." Torres v. N. Am. Van Lines, Inc., 135 Ariz. 35, 40, 658 P.2d 835, 840 (App. 1982). To have abused its discretion, the trial court must have committed an error of law in reaching its decision, or made a discretionary finding of fact that is not justified by reason. State v. Aguilar, 224 Ariz. 299, ¶ 6, 230 P.3d 358, 359-60 (App. 2010). Although potentially cumulative in effect, see State v. Roberts, 131 Ariz. 513, 515, 642 P.2d 858, 860 (1982), we address each communication separately.
¶6 The first communication occurred during a break in voir dire when Juror Two asked Carter's attorney about the expected length of the trial. After counsel reported the communication, the trial court questioned Juror Two about it, and later reminded all jurors about the admonition against direct communications ...