State v. Shelton

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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 DIVISION ONE FILED: 02/22/11 RUTH WILLINGHAM, ACTING CLERK BY: DLL IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. JAVON HUNTER SHELTON, Appellant. ) ) ) ) ) ) ) ) ) ) No. 1 CA-CR 10-0164 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-155279-001 SE The Honorable Connie Contes, Judge AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Joseph T. Maziarz, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Eleanor S. Terpstra, Deputy Public Defender Attorneys for Appellant Phoenix J O H N S E N, Judge ¶1 Javon Hunter Shelton attempted second-degree murder. appeals his conviction for He argues the superior court erred by giving concealment. the jury an instruction on flight or For the reasons that follow, we affirm. FACTS AND PROCEDURAL BACKGROUND ¶2 Following a series of verbal confrontations at a pick- up basketball game at a park, Shelton shot one of the players in the chest. 1 Shelton then ran to his truck and drove away at approximately 40 miles per hour. ¶3 At trial, the court gave the following instruction over Shelton s objection: Flight or concealment. In determining whether the State has proved the defendant guilty beyond a reasonable doubt, you may consider any evidence of the defendant s running away, hiding, or concealing evidence together with all the other evidence in the case. You may also consider the defendant s reasons for running away, hiding or concealing evidence. Running away, hiding or concealing evidence after a crime has been committed does not by itself prove guilt. ¶4 The jury convicted Shelton of attempted second-degree murder, a Class 2 dangerous felony. aggravating circumstances, the court After the jury found four sentenced Shelton to an aggravated term of 20 years. ¶5 Shelton timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution 1 On appeal, [w]e view the evidence in the light most favorable to sustaining the verdicts and resolve all inferences against appellant. State v. Nihiser, 191 Ariz. 199, 201, 953 P.2d 1252, 1254 (App. 1997). 2 and Arizona Revised Statutes sections 12-120.21(A)(1) (2003), 13-4031 (2010), and -4033(A) (2010). DISCUSSION ¶6 Shelton argues the superior court erred in giving the jury the flight or concealment instruction recited above. We review the superior court s decision to give a particular jury instruction for an abuse of discretion. State v. Johnson, 205 Ariz. 413, 417, ¶ 10, 72 P.3d 343, 347 (App. 2003). entitled to a jury instruction supported by the evidence. on any A party is theory reasonably State v. Tschilar, 200 Ariz. 427, 436, ¶ 36, 27 P.3d 331, 340 (App. 2001). ¶7 A superior court may instruct the jury on flight only if it is able to reasonably infer from the evidence that the defendant left the scene in a manner which obviously invites suspicion or announces guilt. State v. Speers, 209 Ariz. 125, 132, (App. ¶ 28, 98 P.3d 560, 567 2004) (quoting State Weible, 142 Ariz. 113, 116, 688 P.2d 1005, 1008 (1984)). v. Thus, merely leaving the scene or engaging in travel is not sufficient to support the giving of a flight instruction. Speers, 209 Ariz. at 132, ¶ 28, 98 P.3d at 567. ¶8 Shelton argues the court failed to examine whether the evidence manifested invited suspicion a and consciousness applied 3 an of guilt improper or obviously presumption that whenever there is testimony [of] a defendant . . . running, the government is entitled to a flight instruction. ¶9 The evidence presented at trial showed that after Shelton shot the victim, he ran back to his truck, then drove away at approximately 40 miles per hour. Shelton told the jury that after the incident he ran towards [his] vehicle. context, evidence that Shelton ran from the scene suspicion and indicates a consciousness of guilt. In invites See State v. Lujan, 124 Ariz. 365, 371, 604 P.2d 629, 635 (1979) ( Running from the scene of a crime, rather than walking away, may provide evidence of a guilty conscience prerequisite to a flight instruction. ). ¶10 in Shelton relies on Speers, but the equivocal evidence that case, the defendant s possession of a flight itinerary, is unlike the evidence here. 133, ¶ 31, 98 P.3d at 568. passport and 209 Ariz. at The court in Speers observed there was no evidence that the defendant in that case bought a plane ticket or even made reservations for a trip: Although Defendant may have thought about flight, his actions did not make him harder to find or camouflage his activities. ¶11 Ariz. Id. Likewise, Shelton s reliance on State v. Rodgers, 103 393, 442 P.2d 840 (1968), is misguided. The Arizona Supreme Court held it was error to give a flight instruction in that case because there was no evidence that the defendant fled 4 the scene under a consciousness of guilt and for the purpose of evading arrest. Id. at 395, 442 P.2d at 842. Merely leaving the scene is not sufficient to support a flight instruction; the defendant must leave in a way that invites suspicion. ¶12 See id. In contrast, Shelton concedes he ran to his vehicle after the shooting, shooting at him. but argues he ran because others were The jury was free to disbelieve Shelton and infer that his actions demonstrated consciousness of guilt. See State v. Earby, 136 Ariz. 246, 248, 665 P.2d 590, 592 (App. 1983). If the jury indeed disbelieved Shelton s explanation for why he hurried away, it could conclude his actions manifest[ed] a consciousness of guilt. Speers, 209 Ariz. at 132, ¶ 27, 98 P.3d at 567; see State v. Salazar, 173 Ariz. 399, 409, 844 P.2d 566, 576 (1992) (running from scene and discarding shoes); Lujan, 124 Ariz. at 371, 604 P.2d at 635 (running from scene). ¶13 Shelton argues that Earby, Salazar and Weible all require the superior court to engage in further analysis . . . when the accused runs from the scene [of a crime]. In each of the cited cases, the defendant ran from the scene and attempted by some additional act to conceal the crime. But the cases do not impose the rule that rushing from the scene, by itself, may not invite suspicion or announce guilt. 371, 604 P.2d at 635. 5 See Lujan, 124 Ariz. at ¶14 Finally, court erred in even giving assuming the arguendo flight that instruction, the the superior error was harmless because of the overwhelming evidence against Shelton. See Speers, 209 Ariz. at 135, ¶ 37, 98 P.3d at 570. For an error in the superior court to be harmless, the error must not contribute to or affect the verdict. See State v. Henderson, 210 601, Ariz. 561, 567, ¶ 18, 115 P.3d 607 (2005). witnesses testified they saw Shelton shoot the victim. Six Three witnesses refuted Shelton s testimony that he shot the victim in self-defense after being ambushed in a drug deal. Further undercutting Shelton s assertion that he acted in self-defense after being fired upon was evidence that only one shell casing was found at the scene of the crime. CONCLUSION ¶15 For the reasons stated above, we affirm Shelton s conviction and resulting sentence. /s/_______________________________ DIANE M. JOHNSEN, Judge CONCURRING: /s/____________________________ DONN KESSLER, Presiding Judge /s_____________________________ SHELDON H. WEISBERG, Judge 6

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