STATE v. WEBB

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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. ) ) SAMUEL YAZZIE WEBB, ) ) Appellant. ) ) __________________________________) No. 1 CA-CR 12-0762 DIVISION ONE FILED: 10/17/2013 RUTH A. WILLINGHAM, CLERK BY: GH DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-157140-001 The Honorable Joseph C. Kreamer, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz, Chief Counsel Criminal Appeals/Capital Litigation Section Andrew Reilly, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Stephen Whelihan, Deputy Public Defender Attorneys for Appellant Phoenix W I N T H R O P, Judge ¶1 Samuel Yazzie Webb was convicted by a jury of second degree murder, a class 1 felony and domestic violence offense, in regards to the death of his stepbrother. The victim was found dead with his throat slashed after last being seen with Webb the previous evening. On appeal, Webb contends the trial court erred by dismissing a juror and by giving an improper jury instruction. For reasons that follow, we affirm. DISCUSSION A. Dismissal of Juror ¶2 Webb argues that the trial court erred by dismissing Juror 9 during trial. The juror was dismissed after informing the trial court that he realized while listening to testimony that he was quite surrounding area. expressed concern familiar with the murder scene and the In dismissing the juror, the trial court that Juror 9 had a greater knowledge than everyone else of the scene. universe of Webb claims the dismissal of Juror 9 violated his right to a fair and impartial jury because there was no valid basis for dismissing this juror. ¶3 Although a defendant in a criminal case is entitled to a fair and impartial jury, he is not entitled to any particular jury. State v. Arnett, 119 Ariz. 38, 50, 579 P.2d 542, 554 (1978). Thus, if the record does not affirmatively establish that dismissal of a juror resulted in a biased jury, we will not reverse. Id.; see also Kinsey v. State, 49 Ariz. 201, 209 10, 65 P.2d 1141, 1145 (1937) ( The exclusion of a juror by the court, even though erroneous, is of itself never a ground for reversal, for the defendant is not entitled to have his case 2 tried by any particular juror, but merely by twelve who are properly qualified and impartial. ). Webb has not directed this court to any evidence that the jury that decided his case was not fair or impartial, nor disclosed any such evidence. has our review of the record Accordingly, regardless of whether the juror s familiarity with the murder scene provided a valid basis for dismissal, Webb is not entitled to reversal. ¶4 Webb s reliance on United States v. Symington, 195 F.3d 1080 (9th Cir. 1999), in claiming the juror s dismissal was reversible error, is misplaced. In Symington, the Ninth Circuit held committed that the district court reversible error in dismissing a juror during deliberations after finding that the juror was either unwilling or unable to deliberate because the record evidenced a reasonable possibility the impetus for the juror s dismissal stemmed from her views on sufficiency of the State s case. Id. at 1088. The decision in Symington was based on the rule that [a] court may not dismiss a juror during deliberations if the request for discharge stems from doubts the juror harbors about the sufficiency of the evidence. Id. at 1085 (quoting United State v. Brown, 823 F.2d 591, 596 (D.C. Cir. 1978)). As the Ninth Circuit observed, The reason for this prohibition is clear: To remove a juror because he is unpersuaded by the Government s case is to deny the defendant 3 his right to a unanimous verdict. Id. (quoting United States v. Thomas, 116 F.3d 606, 621 (2d Cir. 1997)). ¶5 Here, Juror 9 was not dismissed during deliberations based on doubts the juror had regarding the sufficiency of the State s case. Indeed, when the juror was dismissed, the State had not even completed presentation of its case and the jury had been instructed not to form any final opinions about any fact or the outcome presented. of the case until all the evidence had been Furthermore, unlike in Symington, the trial court s remarks in dismissing the juror indicate that the impetus for the dismissal was not the juror s views on the sufficiency of the State s case but rather concern that the juror s prior knowledge about the murder scene might improperly figure into his deliberations, notwithstanding the instruction that jurors must decide the facts only from evidence presented in court. In the absence of any showing that the jury that decided this case was not fair or impartial, there was no reversible error by the trial court in dismissing the juror. Arnett, 119 Ariz. at 50, 579 P.2d at 554. B. ¶6 Instruction on Concealment of Evidence Webb also argues that the trial court erred in giving the following jury instruction: Concealing evidence after a crime has been committed does not by itself prove guilt. You may consider any evidence of the 4 defendant s concealment of evidence, together with all the other evidence in the case. ¶7 Because Webb failed to object to this instruction at trial, our review is limited to fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005); see also Ariz. R. Crim. P. 21.3 ( No party may assign as error on appeal the court s giving . . . any instruction . . . unless the party objects thereto before the jury retires to consider its verdict review, a . . . defendant . ). must To prevail prove both under that this standard fundamental exists and that the error caused him prejudice. of error Henderson, 210 Ariz. at 567, ¶ 20, 115 P.3d at 607. ¶8 Webb contends the instruction was error because it was not supported by the evidence. A concealment instruction is proper so long as the evidence demonstrates consciousness of guilt. See State v. Cutright, 196 Ariz. 567, 570, ¶ 12, 2 P.3d 657, 660 (App. 1999) ( The key inquiry is whether the defendant engaged in some type of eluding behavior designed to camouflage his participation in a crime, thus manifesting a consciousness of guilt. ), disapproved on other grounds by State v. Miranda, 200 Ariz. 67, 22 P.3d 506 (2001). Whether such an instruction should be given is determined by the facts in a particular case. State v. Speers, 209 Ariz. 125, 132, ¶ 27, 98 P.3d 560, 567 (App. 2004) (citation omitted). 5 We review a trial court s decision to discretion. give a particular jury instruction for abuse of State v. Johnson, 205 Ariz. 413, 417, ¶ 10, 72 P.3d 343, 347 (App. 2003). ¶9 In the instant case, Webb testified that the morning after the murder he changed out of the clothes and shoes he had been wearing and threw them away. the murder, Webb s the conduct trial in court Due to the bloody nature of could permanently reasonably disposing of conclude his that clothing following the murder would support an inference of consciousness of guilt. clothes Although and shoes Webb for testified reasons that he threw away unrelated to the murder, his a defendant s alternative explanation for his behavior does not preclude an instruction on evidence that manifests consciousness of guilt. 199 See State v. Hunter, 136 Ariz. 45, 49, 664 P.2d 195, (1983) instruction notwithstanding defendant s explanation for fleeing the scene). The trial court did concealment not (upholding abuse its flight discretion in giving the of evidence instruction. ¶10 Moreover, even if the trial court had erred in giving the instruction, Webb is unable to meet his burden of showing he was prejudiced. The instruction was phrased permissively; the jury was instructed that they may consider any evidence of concealment and further informed that the concealing of evidence does not itself prove guilt. On this record, Webb s claim that 6 the jury might have acquitted if not for this instruction is pure speculation. Speculative prejudice is insufficient under fundamental error review. State v. Martin, 225 Ariz. 162, 166, ¶ 15, 235 P.3d 1045, 1049 (App. 2010). CONCLUSION ¶11 Based on the foregoing, we affirm Webb s conviction and sentence. __________________/S/__________________ LAWRENCE F. WINTHROP, Presiding Judge CONCURRING: _____________/S/___________________ MARGARET H. DOWNIE, Judge ____________/S/____________________ JON W. THOMPSON, Judge 7

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