State v. Wright

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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 STATE OF ARIZONA, ) ) ) ) ) ) ) ) ) ) Appellee, v. CANDICE LYNNE WRIGHT, Appellant. 1 CA-CR 09-0670 DIVISION ONE FILED: 07/07/2011 RUTH A. WILLINGHAM, CLERK BY: DLL DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Mohave County Cause No. CR-2007-1350 The Honorable Rick A. Williams, Judge AFFIRMED Thomas C. Horne, Attorney General Phoenix By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Angela Corrine Kebric, Assistant Attorney General Attorneys for Appellee Kaiser James Wilson PLLC By Jeffrey A. James Attorneys for Appellant Flagstaff G E M M I L L, Judge ¶1 Candice Lynne Wright sentence for second-degree murder. we affirm. appeals her conviction and For the reasons that follow, FACTS AND PROCEDURAL BACKGROUND ¶2 to The trial evidence, viewed in the light most favorable sustaining the verdict and with all against Wright, revealed the following. inferences resolved See State v. Vandever, 211 Ariz. 206, 207 n.2, 119 P.3d 473, 474 n.2 (App. 2005). On September 2, 2007, at 7:04 p.m., Wright called 911 to report finding her 73-year-old kitchen with blood officers responded. husband dead everywhere. on Lake the floor Havasu of City their Police The first officers to arrive noticed shell casings in the kitchen and dining area and observed the victim had sustained gunshot wounds and had been dead for a while. ¶3 According to officers, Wright appeared intoxicated and distraught until an officer swabbed her hands for gunshot residue, at which point her behavior changed and she became very talkative and inquisitive about the accuracy of residue tests. When informed that the presence of fertilizer could result in a false positive, Wright stated she had been gardening that day. In response to an officer s request for her clothing to conduct further testing, Wright changed clothes and gave to the officer a shirt different from the one she had been wearing, but similar in color. handguns. Wright further informed officers that she hated She agreed to accompany a detective to the police station for an interview. 2 ¶4 Wright did not testify at trial, but portions of her videotaped interview at the police station were admitted. During the interview with Detectives Campbell and Slack, Wright explained her husband was preparing two steaks for their dinner when he suggested they needed more meat, so she volunteered go to the store. Wright stated she drove straight to the store, which is three-and-one-half miles away, remained there for 35 to 45 minutes returned mess[ing] directly home around looking after at purchasing other two stuff steaks. and Upon entering the house, Wright said she saw this pool of blood and then I kind of blanked out before talking to the 911 lady. She described her two-year marriage as idyllic and said a recent argument over a choice of wallpaper was as bad as it got. Wright also stated that the only time she had ever fired a pistol was in May 2004 when she obtained a concealed weapons permit. She consistently denied any involvement in the murder and claimed she did not know how her husband died. ¶5 The victim owned twin Kel-Tec .32 caliber handguns. One of the pistols was found in the victim s nightstand; the other was not recovered. An autopsy revealed the victim died from five gunshot wounds to the head, neck and chest. The five projectiles found in the victim s body were fired from the same .32 caliber handgun, but not the one found in the bedroom. Police discovered no evidence of a burglary or forced entry into 3 the home, nor was there evidence of a struggle. A neighbor heard four gunshots right in a row between 4:00 and 5:00 p.m. ¶6 for In Wright s truck, police discovered an empty holster a small caliber handgun. Video surveillance from the grocery store showed that Wright entered the store at 6:10 p.m., proceeded directly to the meat display and checked out at 6:13 p.m. ¶7 Trial testimony revealed that Wright frequently carried a .32 caliber handgun at her side, and that she had fired a handgun during an incident outside of her Prescott home a few weeks prior to the murder. the victim apparently was marked stemming alcoholism. by at Further, her relationship with instances least in of part strife from and conflict, Wright s chronic The victim s daughter testified she observed Wright throw a drink in her husband s face on Father s Day that year. ¶8 Over Wright s objection, the court instructed the jury on second-degree murder as a lesser included offense of the sole charge of first-degree murder. The jury found Wright not guilty of first-degree murder but guilty of second-degree murder. jury subsequently factors. 1 found five of eight alleged The aggravating The court sentenced Wright to an aggravated term of 18 1 The jury found the following aggravating circumstances: infliction or threatened infliction of serious physical injury; use, threatened use, or possession of a deadly weapon or 4 years imprisonment, and she timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 13-4031 and -4033(A)(1) (2010). ANALYSIS I. Wright s Interview Statements ¶9 Wright moved before trial to suppress statements she made during the interview. She argued that from the inception of the interview she was subject to custodial interrogation, thereby requiring an advisement of her Miranda 2 rights. She also argued that the statements made after she was advised of her Miranda rights two-and-a-half hours into the interview were inadmissible under Missouri v. Seibert, 542 U.S. 600 (2004). The superior custodial interview court found interrogation when the that until Wright a questioning was specific turned not subject to point during the more accusatory. Accordingly, the court suppressed Wright s statements from that point in the interview to the point at which she was advised of _____________________ dangerous instrument during the commission of the crime; physical, emotional, or financial harm caused to the victim s immediate family; the victim was 65 or older; and, Wright s violation of a position of trust with the victim. 2 Miranda v. Arizona, 384 U.S. 436 (1966). 5 her Miranda rights. 3 ¶10 On appeal, Wright does not specify the statements that the court should have suppressed; instead, she appears to argue, as she did below, that the court should have suppressed all of her statements made during the interview. 4 The State responds that the court s suppression order was not erroneous, and in any event, any possible error was harmless. ¶11 We do not believe the initial questioning of Wright constituted custodial interrogation. See Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980) ( Miranda safeguards come into play whenever a person questioning considered include: the or in in its custody is to equivalent. ). functional determining subjected whether a person either Factors is in express to be custody the method used to summon the person for questioning; location of the questioning; the presence of objective indicia of arrest; and the form and length of the questioning. State v. Cruz-Mata, 138 Ariz. 370, 373, 674 P.2d 1368, 1371 (1983). 3 The suppressed evidence constitutes seven of the transcript s seventy-seven pages. 4 Wright challenges the admissibility of her statements only on the basis of Miranda. She does not argue that she made the statements involuntarily. See State v. Montes, 136 Ariz. 491, 494, 667 P.2d 191, 194 (1983) ( Voluntariness and Miranda are two separate inquiries. ). Accordingly, we do not address the voluntariness of her statements. 6 ¶12 In Cruz-Mata, our supreme court found the trial court did not err in ruling defendant s pre-Miranda confession was admissible when the defendant voluntarily rode in the front seat of an unmarked police car to the police station for questioning; the interview lasted a total of one and a half hours; the defendant was not booked nor handcuffed; and no force was used to compel the defendant to respond to questioning. ¶13 Id. Here, Wright was voluntarily transported to the police station, and she sat in the front seat of the unmarked police vehicle. Wright was not handcuffed, searched, nor booked, as she was not considered a suspect at that time. 5 Wright was also placed in a soft interview room, a room used for victims and witnesses. Unlike the interview rooms used for suspects, the room in which she was questioned did not lock from the outside, was more spacious than a room used to interrogate a suspect, and contained a telephone, phone book, table, two soft seats, and a couch. leave. Also, police never told Wright that she was not free to And while the interview lasted a total of seven-and-a- half hours, Wright was given numerous, sometimes lengthy, breaks and she was read her Miranda rights following approximately twoand-a-half hours of questioning. 5 Based on this record, we do Officers testified at the suppression hearing that it was not until the officers began receiving information from detectives at the scene that conflicted with Wright s story that they began to view Wright as a suspect. 7 not believe the indicia of custody were present during Wright s initial questioning. ¶14 Even if we assume the court erred by concluding the first portion of Wright s interview was not subject to Miranda, any such error was harmless because her statements during that period of time were not inculpatory and there was overwhelming evidence against Wright. See Arizona v. Fulminante, 499 U.S. 279, 310 (1991) ( When reviewing the erroneous admission of an involuntary confession, the appellate court . . . simply reviews the remainder of the evidence against the defendant to determine whether the admission of the confession was harmless beyond a reasonable doubt. ); United States v. Shabazz, 564 F.3d 280, 286 (3rd Cir. 2009) (concluding that, even if a Miranda violation occurred, any error was harmless due to overwhelming evidence against defendant). ¶15 Additionally, we also find no error by the court in not suppressing statements Wright made after police gave her Miranda warnings. Wright Miranda did not rights. Unlike the defendant in Missouri v. Seibert, confess to any Furthermore, crimes Wright after agreed being read unequivocally her to speak with police officers after being read her Miranda rights. In fact, she had asked police officers if they were going to read [her] [her] rights? Following the reading of her Miranda 8 rights, officers asked Wright, Are you willing to talk to us? to which she responded, Yes. ¶16 For regarding the these reasons, admission of we her find no interview reversible statements error to the police. II. ¶17 Other Act Evidence Wright next argues the court erred in admitting testimony regarding a shooting incident in Prescott in 2006. Wright moved in limine to preclude the testimony based, in part, on its unduly prejudicial nature. See Ariz. R. Evid. 403 (evidence that is otherwise relevant is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice ). The court admitted the evidence because it was relevant to impeach Wright s statements to police regarding her unfamiliarity with and dislike of handguns. We generally review a trial court s ruling on the admissibility of evidence for abuse of discretion. State v. King, 213 Ariz. 632, 636, ¶ 15, 146 P.3d 1274, 1278 (App. 2006). ¶18 analysis On appeal, Wright argues that the trial court made no of whether the evidence s probative outweighed by the danger of unfair prejudice. value was Although express Rule 403 findings may be preferable, they are not necessary when it appears from the record that the court weighed the probative value of the evidence against its prejudicial impact. 9 State v. Beasley, 205 Ariz. 334, 337, ¶ 15, 70 P.3d 463, 466 (App. 2003). On this record, the court in this case appears to have done so. ¶19 Wright also contends the court erred in allowing her husband s throwing daughter to incident. testimony for lack testimony noting testify At of that about trial, the disclosure. although a Father s defense The normally Day objected drinkthe allowed court to the something like that would be disclosed prior to trial[,] . . . the victim . . . can refuse the right to be interviewed prior to trial. The court also found that the expected other act evidence instruction would cover . . . the Father s Day incident. ¶20 Assuming without deciding that the State should have disclosed the substance of the testimony prior to trial, we conclude the court did not abuse its discretion in admitting the testimony. 6 First, there was other evidence of Wright s marital spats with her husband shortly before his death. See, e.g., State v. Shearer, 164 Ariz. 329, 340, 793 P.2d 86, 97 (App. 1989) (admission of inadmissible 6 evidence was harmless error Pursuant to Arizona Rule of Criminal Procedure 15.1, the State is required to make available to the defense a list of all prior acts of the defendant. Ariz. R. Crim. P. 15.1(b)(7). The record indicates that the prosecutor knew about the Father s Day incident before the daughter testified. Thus, it appears the expected testimony should have been disclosed to Wright before the daughter took the stand. See Ariz. R. Crim. P. 15.1(f)(1) (prosecutor s disclosure obligations extend to information in the prosecutor s possession); see also Ariz. R. Crim. P. 15.6 (continuing duty to disclose). 10 when it was testimony). Wright s cumulative to and consistent with other trial Second, the purpose of the testimony was to impeach statement to police that her relationship victim was idyllic and devoid of conflict. with the Such impeachment evidence is especially relevant in this case because Wright s alibi defense trial. placed her credibility as a central issue at Accordingly, we find no abuse of discretion. III. Instruction on Second-Degree Murder ¶21 in Wright argues the superior court abused its discretion instructing the jury on the lesser included offense of second-degree murder because the evidence did not support the instruction. 207 P.3d See State v. Dann, 220 Ariz. 351, 363-64, ¶ 51, 604, 616-17 (2009) (we review decision to give an instruction for abuse of discretion). ¶22 A party is entitled to an instruction on any theory of the case reasonably supported by the evidence. State v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995). To convict Wright on the charged offense of first-degree murder, the State was required to prove that she intentionally or knowingly killed her husband with premeditation. The difference between See A.R.S. § 13-1105(A)(1) (2010). 7 first-degree 7 murder and We refer to a statute s current version if revisions occurred since the date of the offense. 11 the lesser- no material included offense of second-degree murder is that the latter does not require premeditation. See A.R.S. § 13-1104(A)(1) (2010); State v. Kamai, 184 Ariz. 620, 623, 911 P.2d 626, 629 (App. 1995) (second-degree murder is homicide without premeditation and is a lesser included offense of first-degree murder). 8 ¶23 Wright argues that because she presented an all or nothing alibi defense, the State only presented evidence of the charged offense, which required premeditation. The faulty premise in her argument is that, to support an instruction on second-degree murder, the State must premeditation as an element of the offense. prove without See id. ( Proper jury instructions on second-degree murder do not list without premeditation as an element of the offense that the state must prove. ). ¶24 The instruction State because was the entitled to circumstantial a second-degree evidence murder supported the State s theory that Wright shot her husband when he confronted her about her drinking. The evidence at trial was that Wright s severe alcoholism caused her to be easily irritable, frustrated, and unable to control her impulsive behavior. Her drinking was a source of conflict with her husband, and she had at least a glass of wine and two martinis during the day of the shooting. 8 The jury was not instructed on knowing or reckless seconddegree murder pursuant to A.R.S. § 13-1104(A)(2), (3) (2010). 12 Based on this evidence, instructing the jury on second-degree murder was not error. D. ¶25 Infliction or Threatened Infliction Physical Injury as an Aggravating Factor of Serious Finally, Wright argues the superior court improperly considered the infliction or threatened infliction of serious physical 701(D)(1) injury as (Supp. an aggravating 2010). She factor. A.R.S. § 13- physical asserts See injury is an essential element of second-degree murder and therefore cannot also be considered sentencing. as an aggravating factor for purposes of Wright also contends that the trial court erred by focusing on Wright s alleged conduct, rather than the evidence presented at trial that some of the bullet wounds were non-fatal and it was uncertain whether the victim suffered the non-fatal wounds before he sustained the fatal ones. ¶26 The superior court has broad discretion in sentencing, and absent a finding of abuse of discretion, we will uphold a sentence that is within statutory limits. State v. Sproule, 188 Ariz. 439, 440, 937 P.2d 361, 362 (App. 1996). novo an alleged legal error in sentencing. State v. Virgo, 190 Ariz. 349, 352, 947 P.2d 923, 926 (App. 1997). properly employed a given factor to We review de Whether a court aggravate a sentence presents a question of law for our independent determination. State v. Alvarez, 205 Ariz. 110, 113, ¶ 6, 67 P.3d 706, 709 13 (App. 2003). ¶27 Pursuant to A.R.S. § 13-701(D): For the purpose of determining the sentence pursuant to subsection C of this section, the trier of fact shall determine and the court shall consider the following aggravating circumstances, except that the court shall determine an aggravating circumstance under paragraph 11 of this subsection: 1. Infliction or threatened infliction of serious physical injury, except if this circumstance is an essential element of the offense of conviction or has been utilized to enhance the range of punishment under § 13-704. (Emphasis added.) addressed this issue At sentencing, and stated, the the trial court infliction of directly serious physical injury is an aggravator in this particular case because we re not just dealing with a situation where a defendant shoots a victim one time and kills them. were fired at the victim. We have several shots that The court specifically noted that there were five shots that actually hit the victim, and the court believed that each shot was a conscious decision. Although infliction or threatened infliction of serious physical injury may not be an aggravating factor in all second degree murder cases, we agree with the trial court that, under these circumstances, the infliction of serious physical injury is a permissible aggravating factor. Wright cites State v. Harvey, 193 Ariz. 472, 974 P.2d 451 (App. 1998) for the proposition that 14 infliction of serious physical harm is an essential element of negligent homicide. We agree, but we note that in Harvey, only one shot was fired. Harvey, 193 Ariz. at 474, ¶ 4, 974 P.2d at 453. For the reasons expressed by the trial court here, we find Harvey to be distinguishable. ¶28 Further, Wright s argument fails to recognize that the record contains evidence from which the jury could conclude that she inflicted serious physical injury on her husband prior to administering the fatal gunshot. See A.R.S. § 13-1104(A). medical Wright s examiner testified that husband could The have remained alive and conscious for up to 20 seconds while he bled to death within two minutes of sustaining the two most serious bullet wounds. Moreover, the evidence shows that at least two shots missed the victim, thereby supporting an inference that he was threatened dying. Therefore, conclusion serious with that physical further serious sufficient Wright injury evidence inflicted, before physical the or injury supports threatened victim died. the to before jury s inflict, For these reasons, the court did not err as a matter of law in considering this factor in deciding to impose an aggravated sentence. ¶29 For these reasons, we find no abuse of discretion in the trial court using the infliction or threatened infliction of serious physical injury as an aggravating factor along with the other four aggravating factors. 15 CONCLUSION ¶30 Wright s conviction and sentence are affirmed. ____/s/_____________________________ JOHN C. GEMMILL, Judge CONCURRING: ____/s/____________________________ DIANE M. JOHNSEN, Presiding Judge ____/s/____________________________ MICHAEL J. BROWN, Judge 16

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