State v. Braxton

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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. CAMERON RAY BRAXTON, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 07/26/2011 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-CR 10-0468 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2009-115945-001 DT The Honorable Paul J. McMurdie, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Joseph T. Maziarz, Assistant Attorney General Attorneys for Appellee Phoenix Natalee Segal Attorney for Appellant Phoenix N O R R I S, Judge ¶1 Cameron Ray Braxton timely appeals his convictions for first-degree murder, attempted armed robbery, and first-degree burglary. He argues the superior court committed fundamental error in responding to a written question from the jury during deliberations. We disagree; the superior court accurately stated the law in responding to the question and Braxton cannot show any response prejudice was, in even some if we respect, were to assume inaccurate. the Thus, court s we affirm Braxton s convictions and sentences. FACTS AND PROCEDURAL BACKGROUND 1 ¶2 Braxton s convictions stem from an attempted invasion robbery in which a man was shot to death. home- On the third day of deliberations, 2 Friday, April 23, 2010, the jury sent a question to the court: Can brought against Defend[a]nts! 3 for the parties, the court jury change charges State has After consultation with counsel responded: No. The only issue before you is whether the [S]tate has proven the charges beyond a reasonable doubt. The jury continued its deliberations that day after receiving the court s response. ¶3 Over the weekend, one of the jurors became ill and could not continue to deliberate. On Monday, April 26, the 1 We view the facts in the light most favorable to sustaining the jury s verdict and resolve all reasonable inferences against Braxton. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 2 Although it was the third day, the jury had only deliberated for six and a half hours to that point. The jury deliberated for 30 minutes on April 21, 2010, six hours on April 22, and then sent the question at the beginning of deliberations on April 23. 3 The superior court tried Braxton defendant who is not involved in this appeal. 2 along with a co- superior court excused the sick juror and replaced her with an alternate. After the replacement, the superior court gave a reconstituting jury instruction: You are to start your deliberations anew starting with selection of a jury foreperson. Any preliminary or final decisions you may have made about any aspect of the case must be set aside and discussed anew. You should not consider any part of your prior deliberations and/or discussions. ¶4 On Tuesday, April 27, the reconstituted jury, after more than five and a half hours of deliberating over two days, returned guilty verdicts against Braxton. DISCUSSION 4 ¶5 Braxton argues that once the jury asked about the possibility of changing the charges, the judge had the obligation to hear them out -- to find out what it was that they were considering. appropriately responded We by disagree; informing the the jury superior it could court only consider whether the State had proven beyond a reasonable doubt 4 Because Braxton did not object at trial, our review is for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Fundamental error is error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial. Id. (quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984)). Further, the error must be prejudicial. Id. at ¶ 20. 3 that Braxton had committed the offenses charged. 5 See Ariz. R. Crim. P. 23.2(a) (jury must find defendant either guilty or not guilty ). ¶6 Further, we disagree with Braxton that Francis v. Sanders, 222 Ariz. 423, 215 P.3d 397 (App. 2009), supports his argument the superior court should have asked the jurors what other charges they were considering. In Francis, a prosecutor s response to a grand juror s question misstated the elements of entrapment and incorrectly suggested entrapment was an issue to be considered only by the trial court. 426, ¶ 11, 215 P.3d at 400. 222 Ariz. at Because of the prosecutor s errors, this court remanded to the grand jury for a redetermination of probable cause. ¶7 Id. at 427-28, ¶ 18, 215 P.3d at 401-02. Francis is clearly distinguishable from this case for two reasons: first, the court s response here did not misstate the law, see supra ¶ 5, and, second, a grand jury and a petit 5 The State argues Braxton invited any error here and is thus precluded from any appellate review of the court s response to the jury question. The invited error doctrine does not, however, apply here. Invited error precludes review if the party complaining on appeal affirmatively and independently initiated the error. State v. Lucero, 223 Ariz. 129, 138, ¶ 31, 220 P.3d 249, 258 (App. 2009); see State v. Logan, 200 Ariz. 564, 566, ¶ 11, 30 P.3d 631, 633 (2001) (courts look to the source of the error, which must be the party urging the error ). Here, the court proposed the response to the jury question, and Braxton s counsel, rather than initiating any alleged error, merely agreed with the court s response. See Lucero, 223 Ariz. at 137, ¶ 26, 220 P.3d at 257 (acquiescing to error does not trigger invited error doctrine). 4 jury serve controls different the purposes. questioning in A grand deciding jury initiates whether exists for charging a person with a crime. probable and cause Ariz. R. Crim. P. 12.1(d)(4); Francis, 222 Ariz. at 427, ¶ 14, 215 P.3d at 401. petit jury, however, simply decides whether a defendant A is guilty or not guilty of the crime charged by the State; it does not decide what crimes should be charged. Ariz. R. Crim. P. 23.2(a); see State v. Lavers, 168 Ariz. 376, 398, 814 P.2d 333, 355 (1991) ( prosecutors traditionally have had great discretion in determining seek ). what In crimes light distinguishable, and to of charge these Braxton s and what penalties Francis differences, reliance on to is that case is misplaced. ¶8 Even if the superior court s response to the jury question was incorrect and it should have asked the jurors what they were considering, Braxton cannot show fundamental error because he cannot show the response caused him any prejudice. Although he argues the court s response was prejudicial because [c]learly the jury was not considering greater charges, it could only have been considering lesser[] charges, we disagree. ¶9 The occurred before alternate and superior the court s court reinstructed response to the jury replaced the sick juror the it would have jury question with to the start [its] deliberations anew and should not consider any part of 5 [its] prior deliberations and/or discussions. (Emphasis added.) See Ariz. R. Crim. P. 18.5(h). part of the followed the prior Because the court s response was deliberations, court s instruction we and must did presume not the jury consider the discussions that led to and immediately followed the question. State v. Newell, 212 Ariz. 389, 403, ¶ 69, 132 P.3d 833, 847 (2006) (jurors presumed to follow instructions). Further, the jury deliberated more than five and a half hours over two days after the strongly court suggests Accordingly, the gave the the jury alleged reconstituting followed error the could instruction, court s not which instruction. have prejudiced affirm Braxton s Braxton. CONCLUSION ¶10 For the foregoing reasons, we convictions and sentences. ___/s/_____________________________ PATRICIA K. NORRIS, Presiding Judge CONCURRING: _/s/________________________________ PHILIP HALL, Judge _/s/________________________________ DONN KESSLER, Judge 6

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