Court of Appeals of Arizona, Second Division, Department A
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR20100321002 Honorable Howard Fell, Judge Pro Tempore
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and Alan L. Amann Tucson Attorneys for Appellee.
Barton & Storts, P.C. By Brick P. Storts, III Tucson Attorneys for Appellant.
JOSEPH W. HOWARD, Chief Judge
¶1 After a jury trial, appellant Angel Perez was convicted of felony murder and two counts of attempted armed robbery. On appeal, he argues the trial court erred by giving an incorrect felony murder instruction, in its rulings on several evidentiary matters at trial, and in failing to suppress Perez's statements. He further argues the prosecutor committed misconduct warranting a new trial. For the following reasons, we affirm Perez's convictions and sentences but vacate a criminal restitution order imposed as part of his sentence.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the conviction. See State v. Mangum, 214 Ariz. 165, ¶ 3, 150 P.3d 252, 253 (App. 2007). In June 2009, L.F. and Jr. were sitting on the patio of their home drinking beer. With a black t-shirt covering his face, Perez approached the home wielding a gun. He demanded marijuana, money, and the keys to L.F. and Jr.'s truck. Jr. walked to the nearby truck and gave Perez a bag of marijuana that was inside, then returned to the patio of the house. L.F. tried to escort Perez away from the property and Perez shot him. Jr. ran inside and told his mother to call 9-1-1, then ran outside and dragged L.F. inside the house. L.F. was airlifted to a hospital for treatment where he remained for six weeks. He eventually died as a result of his gunshot wounds.
¶3 Perez was charged and convicted as described above. He was sentenced to concurrent terms for the murder and one count of armed robbery, the longest of which was a life sentence without possibility of release for 25 years, and to a consecutive, presumptive term of 7.5 years for the other count of armed robbery. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(1).
Felony Murder Instruction
¶4 Perez first argues the trial court erred by giving an incorrect felony murder instruction that requires reversal and remand for a new trial. The state concedes the court's instruction constituted error but argues the error was harmless. We review a claim based on an incorrect jury instruction for harmless error. State v. Valverde, 220 Ariz. 582, ¶ 11, 208 P.3d 233, 236 (2009). An error is harmless if the state can establish beyond a reasonable doubt, "'in light of all of the evidence, '" that the error did not "contribute to or affect the verdict." Id., quoting State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993).
¶5 Felony murder consists of a person committing a predicate felony, including robbery, and "in the course of and in furtherance of the offense or immediate flight from the offense, the person or another person causes the death of any person." A.R.S. § 13-1105(A)(2). "[W]here the killing 'emanates' from the crime itself, and is a natural and proximate result thereof, it is committed in furtherance of the felony within the meaning of the statute." State v. Lopez, 173 Ariz. 552, 555, 845 P.2d 478, 481 (App. 1992), quoting State v. Moore, 580 S.W.2d 747, 751 (Mo. 1979).
¶6 The trial court gave the jury a standard felony murder instruction, but also added the following language:
[T]here is no requirement that the killing occurred while committing or engaged in the felony, or that the killing be part of the felony. The homicide need not have been committed to perpetrate the felony.
It is enough if the felony and the killing were part of the same series of events.
Our supreme court has explicitly disapproved the last sentence of this instruction. Statev. Martinez, 218 Ariz. 421, ¶ 23, 189 P.3d 348, 354-55 (2008). The court explained that the language of that sentence has "long [been] ...