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State v. Matthews

Court of Appeals of Arizona, First Division

August 14, 2018

STATE OF ARIZONA, Appellee,
v.
BRIAN JAMEL MATTHEWS, Appellant.

          Appeal from the Superior Court in Maricopa County No. CR2016-123728-001 The Honorable Alfred M. Fenzel, Judge Retired

          Arizona Attorney General's Office, Phoenix By William Scott Simon Counsel for Appellee

          Maricopa County Public Defender's Office, Phoenix By Carlos Daniel Carrion Counsel for Appellant

          Judge Kent E. Cattani delivered the opinion of the Court, in which Presiding Judge Diane M. Johnsen and Judge Jennifer M. Perkins joined.

          OPINION

          CATTANI, Judge.

         ¶1 Brian Jamel Matthews appeals his conviction and sentence for resisting arrest. He argues that the superior court erred by designating two arresting officers as victims and thus allowing the officers to refuse pretrial defense interviews under Arizona's Victims' Bill of Rights. Matthews further argues that the court erred by declining to instruct the jury (1) that passive resistance is a lesser-included offense of resisting arrest, and (2) regarding excessive force by law enforcement officers. We hold that multiple arresting officers can be victims of a single charge of resisting arrest under Arizona Revised Statutes ("A.R.S.") § 13-2508(A)(1), and that such victims retain the right to refuse pretrial defense interviews. We further hold that passive resistance is not a lesser-included offense of resisting arrest through physical force, and that the evidence did not support Matthews's requested excessive force instruction. Accordingly, and for reasons that follow, we affirm Matthews's conviction and sentence.

         FACTS AND PROCEDURAL BACKGROUND

         ¶2 In May 2016, two Phoenix Police officers patrolling a south Phoenix neighborhood recognized Matthews walking down the street. Knowing that he had an outstanding warrant, the officers turned their patrol car around to stop him, and one of the officers called out to Matthews and made eye contact with him, but he continued walking. Once the officers drew closer, Matthews stopped and sat on a small electrical box, but when one of the officers told Matthews there was an outstanding warrant for his arrest, Matthews abruptly stood up. The officers grabbed Matthews by his arms, but he nevertheless tried to leave. The officers pinned Matthews against a wall, but Matthews kept his arms in front of him and lunged back and forth. The officers ordered him to stop resisting, but he continued to struggle, so they brought him to the ground. One officer placed his knee on Matthews's back, and the officers together were able to pull his arms behind his back to handcuff him.

         ¶3 Matthews had been shot in the back about two months earlier and was still undergoing rehabilitation. After the arrest, Matthews had to be taken to the hospital for injuries related to the gunshot wound.

         ¶4 The State charged Matthews with one count of resisting arrest "by using or threatening to use physical force against the peace officer(s)." Following a jury trial, he was convicted as charged, and the superior court sentenced him to three years' imprisonment. Matthews timely appealed, and we have jurisdiction under A.R.S. § 13-4033(A).

         DISCUSSION

         1. Designating the Officers as Victims.

         ¶5 Matthews contends that the superior court erred by finding that the two police officers who arrested him were victims under the Victims' Bill of Rights. See Ariz. Const. art. 2. We review the superior court's interpretation of this constitutional provision de novo. State ex rel. Montgomery v. Padilla, 238 Ariz. 560, 564, ¶ 12 (App. 2015).

         ¶6 The Victims' Bill of Rights defines a "victim" as a person "against whom the criminal offense has been committed." Ariz. Const. art. 2, ยง 2.1(C). A victim has the right to refuse a pretrial ...


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