Caudillo v. Phoenix

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DIVISION ONE FILED: 05-27-2010 PHILIP G. URRY,CLERK BY: GH LYDIA CAUDILLO, personal ) 1 CA-CV 09-0467 representative of ALFONSO CELAYA, ) for and on behalf of herself, ) DEPARTMENT E ) Plaintiff/Appellant, ) MEMORANDUM DECISION ) v. ) (Not for Publication ) Rule 28, Arizona Rules CITY OF PHOENIX, an Arizona ) Of Civil Appellate municipality; LOWELL SPALLA and ) Procedure) JANE DOE SPALLA, husband and wife ) in their individual capacities, ) HAROLD HURTT and JANE DOE HURTT, ) husband and wife in their ) individual capacities, ) ) Defendants/Appellees. ) ) Appeal from the Superior Court in Maricopa County Cause No. CV2002-004519 The Honorable A. Craig Blakey, Judge AFFIRMED Law Office of David J. Don, PLLC By David J. Don And Phoenix Robbins & Curtin, PLLC By Joel B. Robbins Attorneys for Plaintiff/Appellant Phoenix The Cavanagh Law Firm By Richard J. Woods Scott A. Salmon Phoenix Richard W. Mear Attorneys for Defendants/Appellees H A L L, Judge ¶1 In this wrongful death case, plaintiff Lydia Caudillo (Caudillo) appeals from the judgment entered after a jury found in favor of (Spalla). defendants Caudillo reversible error in City of contends the instructing justification defense. Phoenix and trial the jury Lowell court on Spalla committed defendants For the reasons that follow, we find no error and therefore affirm. BACKGROUND1 ¶2 On or about March 11, 2001, Spalla, a Phoenix police officer, was working off-duty security detail with three other officers outside of a nightclub on 16th Street and Monroe in downtown uniform. Phoenix. The four officers were in full police Sometime around 1:00 a.m., Spalla noticed two women fighting across the street. The fight proceeded westward on Monroe attracting onlookers and additional participants. The fight had a beehive [kind of] effect . . . . ¶3 Spalla and the other officers followed the fight on foot without announcing their presence because there was lots 1 On appeal from a jury verdict, we view the evidence in the light most favorable to sustaining the verdict. Gonzales v. City of Phoenix, 203 Ariz. 152, 153, ¶ 2, 52 P.3d 184, 185 (2002). 2 of vehicle traffic, . . . lots of people yelling and screaming. As the officers proceeded to follow the fight, they heard a gunshot, which changed everything. The officers took cover, and Spalla saw Alfonso Celaya (Celaya) slide across the hood of a parked car. Immediately after Celaya touched ground on the side of the car away from the fighting, Spalla observed Celaya catch a handgun that was tossed over the car. When Celaya pointed the weapon in the direction of the fight, Spalla, who was about ten yards away, shot and killed him without warning2 in order to protect the individuals in the crowd. Eight to ten seconds elapsed from when the officers heard the first gunshot until Spalla shot Celaya. ¶4 Caudillo, Celaya s mother, filed this wrongful death action on March 11, 2002.3 The jury returned a defense verdict, Caudillo appealed, and we vacated and remanded. Caudillo v. City of Phoenix, 1 CA-CV 05-0561 (Ariz. App. July 27, 2006) (mem. decision). defense verdict. A second jury trial again resulted in a Caudillo moved for a new trial arguing the 2 Expert testimony at trial explained Spalla and the other officers properly did not identify themselves during the incident. Further, Spalla testified that Celaya committed aggravated assault by pointing the gun at the crowd. 3 The complaint also raised allegations of civil rights violations and named additional parties as defendants. These claims were disposed of so that only a negligence claim against Spalla and his employer, the City of Phoenix, remained for trial. 3 court erred in its instruction to the jury regarding Spalla s justification in using deadly force against Celaya. The trial court denied the motion and this timely appeal followed. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) section 12-2101(B) (2003). DISCUSSION ¶5 Over Caudillo s objection, the trial court instructed the jury pursuant to A.R.S. § 13-410(C)(1) (2010) as follows: The use of deadly force by a peace officer against another is justified when the peace officer reasonably believes that it is necessary to defend himself or a third person from what the peace officer reasonably believed to be the use or imminent use of deadly physical force. (Instruction No. 11). ¶6 As she did at trial, Caudillo contends that Instruction No. 11 should not have been given because it does not correctly reflect Arizona law regarding defense in a police use-of-force case. argues that Instruction No. 11 should a justification Alternatively, Caudillo have been amended to include a requirement that an officer is only justified in using deadly force in response to unlawful use or imminent use of deadly physical force. 4 ¶7 We review de novo a challenge to the legal accuracy of jury instructions. State v. Orendain, 188 Ariz. 54, 56, 932 4 Caudillo argued at trial that Celaya pointed the gun to defend his friend, R.A. 4 P.2d 1325, 1327 (1997). only if it was both An instruction will warrant reversal harmful to the complaining directly contrary to the rule of law. party and AMERCO v. Shoen, 184 Ariz. 150, 159, 907 P.2d 536, 545 (App. 1995). ¶8 Caudillo claims that Instruction No. 11 failed to include the following four elements necessary under Arizona law to find a defendant police officer s use of deadly force was justified: (1) the officer s use of force occurred in the context of making an arrest, detention or preventing an escape; (2) the use of force was necessary to meet those ends; (3) the person subject to the use of force knew police were present; and (4) the arrest or detention was lawful. We find these elements are not applicable to this case. ¶9 When elements (2) through (4) are present, A.R.S. § 13-409 provides a justification defense to a person who uses physical force against another if in making or assisting in making an arrest or detention or in preventing or assisting in preventing the escape after arrest or detention of that other person, such person uses or threatens to use physical force . . . . A.R.S. § 13-409; see A.R.S. § 13-413 (2010). Section 13- 409 thus applies to persons generally who use physical force in making or assisting in arrests/detentions escapes. 5 or preventing ¶10 Here, Spalla presented evidence that he was a peace officer who used deadly force in defense of third persons. Thus, A.R.S. § 13-410(C)(1) is the more applicable justification statute to this case.5 It provides: The use of deadly force by a peace officer against another is justified pursuant to section 13-409 only when the peace officer reasonably believes that it is necessary . . . [t]o defend himself or a third person from what the peace officer reasonably believes to be the use or imminent use of deadly physical force. A.R.S. § 13-410(C)(1). Because the 410(C)(1), court s and instruction, Caudillo does not supra ¶ 5, challenge mirrored the support for the instruction, we discern no error.6 § 13- evidentiary See AMERCO, 5 It is for this reason that Caudillo s reliance on Weekly v. City of Mesa, 181 Ariz. 159, 888 P.2d 1346 (App. 1994) is misplaced. That case addressed an issue related to a police officer s use of a canine unit in effectuating an arrest. Id. at 161, 888 P.2dat 1348. Weekly did not involve an officer s use of deadly force in defense of a third person; thus, any reference to § 13-409 in that case has no applicability here. Similarly, to the extent Caudillo contends that the jury should have been instructed pursuant to Revised Arizona Jury Instructions (RAJI) (Intentional Torts), at 8 or 10 (4th ed. 2005), she is mistaken. Those instructions also justify a person s use of force or deadly force in preventing another from engaging in certain kinds of conduct or committing enumerated offenses; they say nothing of a peace officer s use of force in defending third persons. RAJI (Intentional Torts), at 8 and 10. 6 At trial, Caudillo also argued that the reference to § 13-409 in § 13-410(C) rendered Instruction No. 11 inapplicable because Spalla was not effectuating an arrest . . . . She does not raise this argument on appeal, thus we do not address it. Torrez v. Knowlton, 205 Ariz. 550, 552 n.1, ¶ 3, 73 P.3d 1285, 1287 n.1 (App. 2003) (issue not raised on appeal deemed abandoned). It appears, however, that Spalla was effectuating an arrest because his use of deadly force against Celaya 6 184 Ariz. at 156, 907 P.2d at 542 ( A trial court must instruct the jury on all valid legal theories framed by the pleadings and supported by substantial evidence. ). ¶11 Caudillo alternatively argues that the trial court should have amended Instruction No. 11 as Caudillo requested so that the jury, in order to accept Spalla s justification defense, had to find he responded to unlawful use or imminent use of force. Caudillo does not cite any authority in support of this argument, thus we could decline to address whether error occurred on this basis. See ARCAP 13(a)(6); Cullum v. Cullum, 215 Ariz. 352, 355 n.5, ¶ 14, 160 P.3d 231, 234 n.5 (App. 2007) (holding appellate courts will not consider argument posited without authority ). ¶12 add We address the merits, however, and conclude that to unlawful improperly in alter the § manner 13-410(C)(1) requested by by Caudillo imposing an would additional requirement not in the statute, i.e., that the use or imminent use of himself deadly or a force third against person which also be the officer unlawful. is defending Although the legislature included the requirement the use or attempted use of deadly force be unlawful when a person is acting in defense of constituted a seizure for Fourth Amendment purposes. See Tennessee v. Garner, 471 U.S. 1, 7 (1985) ( [T]here can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment. ). 7 himself (A.R.S. § 13-405) or a third person (A.R.S. § 13-406), it did not include that requirement in A.R.S. § 13-410(C)(1). See White v. State, 144 Ariz. 39, 42, 695 P.2d 288, 291 (App. 1985) (noting a court may not make unnecessary additions to a statute); Padilla v. Indus. Comm n, 113 Ariz. 104, 106, 546 P.2d 1135, 1137 (1976) (court cannot enlarge the meaning of words or rewrite a statute that is clear and unambiguous even if its interpretation is harsh or uncompassionate). Accordingly, we find no error in Instruction No. 11 as given by the trial court. ¶13 In any event, the record does not affirmatively reveal that Caudillo was prejudiced by the court s instruction. See Walters v. First Fed. Sav. & Loan Ass'n, 131 Ariz. 321, 326, 641 P.2d 235, 240 instructions (1982) not (reversal proper unless on basis of prejudice error to in jury appellant s substantial rights is affirmatively apparent in the record). consider closing arguments of trial counsel whether a jury was properly instructed. when We determining See State v. Russell, 175 Ariz. 529, 533, 858 P.2d 674, 678 (App. 1993). Here, the record on appeal does not contain the transcripts of closing arguments, see ARCAP 11(b), and the record does not otherwise indicate that the trial court prohibited Caudillo s counsel from arguing Spalla unreasonably shot Celaya because Celaya was pointing the gun at the crowd in a lawful manner to defend R.A. 8 See Plattner v. State Farm Mut. Auto. Ins. Co., 168 Ariz. 311, 319, 812 P.2d 1129, 1137 (App. 1991) (holding that it is appellant s burden to see that all documents necessary to his arguments on appeal were made part of the record on appeal ). ¶14 the For these reasons, the trial court s instruction to jury regarding Spalla s justification defense was not Phoenix and reversible error. CONCLUSION ¶15 The judgment in favor of the City of Spalla is affirmed. /s/ PHILIP HALL, Judge CONCURRING: /s/ PATRICK IRVINE, Acting Presiding Judge /s/ PATRICIA A. OROZCO, Judge 9

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