State v. Gipson

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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. GARY WAYNE GIPSON, JR., Appellant. ) ) ) ) ) ) ) ) ) ) 1 CA-CR 10-0381 DIVISION ONE FILED: 07/28/2011 RUTH A. WILLINGHAM, CLERK BY: DLL DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2008-159515-001 DT The Honorable J. Richard Gama, Judge AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Barbara A. Bailey, Assistant Attorney General Attorneys for Appellee Phoenix Dwane Cates Law Group, PLLC By Dwane M. Cates William P. Sargeant, III Attorneys for Appellant Phoenix J O H N S E N, Judge ¶1 Gary Wayne Gipson, Jr., appeals from his convictions and sentences for manslaughter and discharge of a firearm at a structure. For the following reasons, we affirm. FACTS AND PROCEDURAL BACKGROUND ¶2 Gipson and Billy Jr. were friends. 1 father drove to Gipson s house one night. Billy Jr. and his As his father waited in the car, Billy Jr. argued with Gipson outside Gipson s front door. The altercation other. Gipson then pulled out a handgun and shot Billy Jr. at least twice. escalated, and both Billy Jr. ran back to the car. men punched each Gipson continued shooting and struck the car numerous times as it drove off. Billy Jr. s father drove his wounded son home, and Billy Jr. subsequently died from the gunshot wounds. ¶3 degree The murder, State charged unlawful Gipson discharge with of a premeditated firearm residential structure and aggravated assault. at firsta non- In his notice of defenses, Gipson designated self-defense and other theories. ¶4 Prior to trial, the State moved in limine to preclude testimony that Billy Jr. always carried a gun, arguing gun possession does not evidence a tendency to be violent. The court granted the State s motion as it pertained to testimony by 1 We view the facts in the light most favorable to sustaining the jury s verdicts and resolve all inferences against Gipson. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). 2 third persons, but held Gipson could testify about specific incidents of Billy Jr. carrying a gun because such evidence was relevant to Gipson s state of mind at the time of the incident. ¶5 At trial, Billy Jr. s mother testified that she and Billy Jr. were partners in a trucking company that leased trucks from Gipson. After she testified on cross-examination that Billy Jr. was current on the insurance premiums on a leased truck, Gipson moved to allow testimony from his insurance agent that he, Gipson, was paying the premiums. Gipson s request, finding the issue was The court denied collateral to his justification defense. ¶6 court Without a request from either the State or Gipson, the determined to instruct the jury on lesser-included offenses as to the first-degree murder charge. Explaining it had an independent responsibility to instruct on the facts as [it] understood the facts, the court overruled Gipson s objection and instructed the jury on second-degree murder and manslaughter by sudden quarrel or heat of passion. ¶7 The jury found Gipson not guilty of first-degree murder but guilty of manslaughter and guilty of discharging a firearm at a non-residential structure. on the aggravated assault charge. 3 It was unable to agree The superior court sentenced Gipson to concurrent prison terms, the longest of which is 18 years for the manslaughter conviction. 2 ¶8 to Gipson timely appealed. Article Arizona 6, Section Revised 9, Statutes of We have jurisdiction pursuant the Arizona ( A.R.S. ) Constitution, sections and 12-120.21(A)(1) (2003), 13-4031 (2010) and -4033(A)(1) (2010). DISCUSSION A. Manslaughter Instruction. ¶9 Gipson first argues the superior court erred in giving a manslaughter instruction. longer imposes a duty on As Gipson notes, Arizona law no the court in a homicide case to instruct the jury sua sponte on all lesser-included offenses supported by the evidence. 21.3(c). See comment to Ariz. R. Crim. P. Nevertheless, assuming for purposes of argument only that the State objected to the instruction (a contention the record does not entirely support), we are aware of no authority for Gipson s contention that a court errs by choosing to give a proper lesser-included instruction over both sides objections. 3 2 The jury found that the offenses were dangerous and that the State had proved the aggravating factor of emotional or financial harm to Billy Jr. s immediate family. 3 Gipson does not dispute that the evidence supported the manslaughter instruction; nor does he contend the instruction improperly stated the law. 4 B. Victim s Propensity to Carry Firearms. ¶10 As noted, the court allowed Gipson to testify about prior occasions in which he was aware that Billy Jr. carried a handgun. On appeal, Gipson argues the court erred by precluding other witnesses from testifying that Billy Jr. regularly carried a handgun. Gipson argues the ruling prevented him from offering evidence of his state of mind and evidence that Billy Jr. was the first aggressor. discretion. We review this contention for an abuse of State v. Zamora, 140 Ariz. 338, 340, 681 P.2d 921, 923 (App. 1984). ¶11 A defendant who asserts self-defense generally offer proof of the victim s reputation for violence. may State v. Birdsall, 116 Ariz. 196, 198, 568 P.2d 1094, 1096 (App. 1977); see Ariz. R. Evid. 404(a)(2). a pistol is of minimal Nevertheless, the possession of probative aggressive character . . . . P.2d at 923. value on the possessor s Zamora, 140 Ariz. at 340, 681 We conclude the superior court did not abuse its discretion in precluding other testimony concerning Billy Jr. s habit of carrying a handgun because it was irrelevant to whether he was the first aggressor. See Ariz. R. Evid. 402 ( Evidence which is not relevant is not admissible. ). ¶12 Moreover, even if the court erred by precluding the testimony, the error did not prejudice Gipson s defense. See State v. Ybarra, 97 Ariz. 200, 202, 398 P.2d 905, 907 (1965) 5 (for trial error to be reversible, it must prejudice the defendant); State v. Hatch, 225 Ariz. 409, 413, ¶ 15, 239 P.3d 432, 436 (App. 2010) (same). Gipson himself testified that Billy Jr. carried a gun on other occasions and testified he saw Billy Jr. with a gun during the incident at issue. Finally, other witnesses testified that Billy Jr. had a reputation for being hot headed, volatile. Gipson very aggressive, combative and Accordingly, the court s ruling did not preclude from offering evidence of his own state of mind and circumstantial evidence that Billy Jr. was the first aggressor. C. Testimony Regarding Insurance Payments. ¶13 Gipson discretion in also argues precluding the him from superior court offering abused testimony its by his insurance agent that he, Gipson, paid the insurance premiums on a truck he testimony leased to to rebut Billy the Jr. State s He sought theory that to offer the this shooting occurred over a money dispute. ¶14 The superior court did not abuse its discretion in excluding the testimony based on its conclusion that the issue was collateral. P.2d 776, 778 See, e.g., State v. Davis, 117 Ariz. 5, 7, 570 (App. 1977) ( The admission or exclusion of testimony as to immaterial or collateral matters for the purpose of impeachment is left to the sound discretion of the trial court. ). What started the fistfight that led to the shooting 6 was immaterial Accordingly, the to the court question did not of abuse Gipson s its guilt. discretion in precluding the rebuttal testimony. CONCLUSION ¶15 For the foregoing reasons, we affirm Gipson s convictions and resulting sentences. /s/ DIANE M. JOHNSEN, Presiding Judge CONCURRING: /s/ PATRICIA A. OROZCO, Judge /s/ ANN A. SCOTT TIMMER, Judge 7

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