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State v. Carson

Court of Appeals of Arizona, Second Division

March 6, 2017

The State of Arizona, Appellee,
v.
Antajuan Stewart Carson Jr., Appellant.

         Appeal from the Superior Court in Pima County No. CR20134987001 The Honorable Teresa Godoy, Judge Pro Tempore

         COUNSEL

          Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel, Phoenix By Adele G. Ponce, Assistant Attorney General, Phoenix Counsel for Appellee

          Steven R. Sonenberg, Pima County Public Defender By Erin K. Sutherland, Assistant Public Defender, Tucson Counsel for Appellant

          Judge Miller authored the opinion of the Court, in which Presiding Judge Vásquez concurred and Chief Judge Eckerstrom concurred in part and dissented in part.

          OPINION

          MILLER, Judge:

         ¶1 A jury found Antajuan Carson Jr. guilty of two counts of second-degree murder and two counts of aggravated assault. He was sentenced to concurrent terms, the longest of which was thirteen years. His appeal requires us to determine whether a defendant asserting a mistaken identity defense may also obtain a justification instruction. We conclude that although the defenses are inconsistent, it remains within the province of the jury to determine the facts, and if those facts could support justification then the jury must be instructed on it. Therefore, we affirm as to the aggravated assaults because there was no evidence supporting justification, reverse the second-degree murder convictions, as to which the slightest justification evidence existed, and remand.

         Factual and Procedural Background

         ¶2 We view the facts in the light most favorable to Carson, the justification instruction's proponent. State v. King, 225 Ariz. 87, ¶ 13, 235 P.3d 240, 243 (2010). Two men, J.M. and S.B., were shot and killed, and a third, B.C., was shot and wounded, outside a party at a residence in October 2013. Carson was indicted as the lone shooter.

         ¶3 B.C., the surviving victim who came to the party to deejay, testified that he had known Carson only from a social media website and had seen him at a couple of parties. Shortly after B.C. arrived, Carson told B.C. that he was carrying a nine-millimeter pistol that shot like a .22-caliber. Multiple witnesses saw Carson with a black gun at some point during the night.[1]

         ¶4An argument occurred inside the house among four or five young men. The parties stipulated that there was "animosity or bad blood" between Carson and J.M. arising out of a prior dispute between Carson and J.M.'s brother. The men, including J.M. and S.B., confronted Carson and got into a shoving match or fistfight. Multiple people saw Carson display a gun inside the house.

         ¶5People began leaving and the confrontation moved outside. As B.C. left through a side door and came around the side of the house, he saw Carson on the ground, surrounded by the same four men including J.M. and S.B. B.C. was not one of the four men. The men were hitting and kicking Carson. B.C. pulled S.B., whom he knew, out of the fray and walked him across the street. B.C. told S.B. that if he wanted to fight Carson, he should fight him one-on-one rather than "jump[ing]" him in a group.

         ¶6 B.C. testified he then had seen the fighting stop, but yelling and screaming continued. Then a man in the area of the fight stood up, and B.C. heard a gun cock. Someone said "He has a gun, " and everyone started running. One witness testified the man getting jumped had "[p]ull[ed] out his gun so they could get off him" and then "[h]e started shooting." The man shot J.M., who fell. J.M. tried to get back up and run away, but the man shot him again and he stayed down. B.C. was across the street when the man looked him in the eyes, pointed the gun at him, and shot him in the abdomen. [2] Finally, the man shot and killed S.B. Based on eyewitness interviews and the locations of shell casings at the scene, the shooter moved his hand or changed positions from right to left while firing.

         ¶7 Police officers found the bodies of J.M. and S.B. about one and a half to two blocks apart, in opposite directions from the party house. An autopsy later established J.M. had been shot twice in the back, and S.B. had been shot once in the side of his chest and once in the bottom of his foot. The lack of soot or stippling around the entrance wounds on the decedents indicated either that the shots had been fired from more than three feet away, or that a heavy piece of fabric might have caught all of the soot at closer range. There was no testimony that the victims were shot with the same gun, but no eyewitnesses reported seeing more than one person shooting that night either. Officers found ten nine-millimeter shell casings and one nine-millimeter live round at the scene. Police never found the murder weapon or weapons.

         ¶8 Officers also found a bloody knife near S.B.'s body. The knife was never tested for DNA or fingerprints. Similarly, blood on a second knife tucked inside S.B.'s belt was not tested. A detective explained that the investigation had not revealed that anyone used a knife during the altercation, and so testing was not necessary.

         ¶9 Carson became a person of interest early in the investigation. Police obtained an arrest warrant for him, and he was apprehended about ten days later in Detroit, Michigan. Several eyewitnesses identified him as the shooter, but several others did not. He did not testify or present evidence in his case-in-chief.

         ¶10 Carson unsuccessfully requested a self-defense justification instruction. Despite the trial court's refusal, in closing both sides indirectly argued self-defense as it pertained to the knives found at S.B.'s body, although Carson's primary contention remained mistaken identity. He was convicted and sentenced as described above. We have jurisdiction over his appeal pursuant to A.R.S. §§ 13-4031 and 13-4033(A)(1).

          Waiver and Standard of Review

         ¶11 Carson timely requested a self-defense instruction in writing, filed a written motion in support of that request, and argued that motion to the trial court during trial while the jury was absent. In its oral ruling denying the instruction, the court relied on State v. Gilfillan, 196 Ariz. 396, 998 P.2d 1069 (App. 2000), which had not been cited by the parties. The court explained "[Gilfillan] specifically holds that given the defendant denies committing the act with which he is charged, it follows that he could not argue self-defense. . . . So I think that given how the defense has presented this case in that he didn't do it and someone else did it . . . I think the court legally cannot give a self-defense instruction."

         ¶12 The state first contends Carson forfeited his objection except for fundamental error review because the trial court, rather than he, cited Gilfillan. It relies on State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005), which stands for the general proposition that when a defendant fails to object to alleged trial error fundamental error review applies. The state's argument that Carson should have objected specifically to the court's "application of Gilfillan to his case, " would expand Henderson's reach far beyond its intended purpose of placing the initial burden at trial on a party to make an objection. Moreover, Carson specifically argued it would be "perfectly reasonable" to argue to the jury, "'He didn't do it, but if you think he did, the facts support self-defense here.'" This argument was sufficient to give the court the opportunity to rule on the issue, which it did. See State v. Fulminante, 193 Ariz. 485, ¶ 64, 975 P.2d 75, 93 (1999). We also conclude Carson complied with Rule 21.3(c), Ariz. R. Crim. P., which provides that a party must object to the failure to deliver a particular instruction before the jury retires. The issue is preserved.

         ¶13 We review a court's decision not to give a jury instruction for an abuse of discretion. State v. Vassell, 238 Ariz. 281, ¶ 8, 359 P.3d 1025, 1027-28 (App. 2015). A court abuses its discretion if it commits an error of law in exercising that discretion. State v. Lychwick, 222 Ariz. 604, ¶ 7, 218 P.3d 1061, 1063 (App. 2009). We review issues of statutory interpretation de novo. State v. Gear, 239 Ariz. 343, ¶ 11, 372 P.3d 287, 289 (2016).

          Slightest Evidence of Justification

         ¶14 Use of physical force against another person is justified to protect oneself "when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful physical force, " subject to certain inapposite exceptions. A.R.S. § 13-404(A). Justification to use deadly force requires, inter alia, an unlawful use or attempted use of such force by the victim. A.R.S. § 13-405(A). As it pertains to this case, deadly physical force means force ...


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