STATE of Arizona, Appellee, v. Richard Taylor BURKE, Sr., Appellant.
No. 1 CA-CR 14-0438
Court of Appeals of Arizona, Division 1
Oct. 8, 2015
360 P.3d 118
KESSLER, Judge
trigger, a most unusual position, even for a suicide victim. Then, almost immediately after the police arrive and tell Defendant not to wash his hands, Defendant, a seasoned police officer and practicing attorney, does so anyway, potentially removing any incriminating evidence.
¶ 79 During questioning by the police, Defendant repeatedly lied to them, stating he was asleep in the guest bedroom during the shooting. In fact, Defendant was sitting right next to Radder when he was shot. Defendant argued he was too intoxicated to remember the whole thing, even though the physical evidence shows he was slipping and walking around in Radder‘s blood after the shooting.
¶ 80 The physical evidence also shows that both sides of the gun are covered in Radder‘s blood, and Radder‘s unsmeared, bloody fingerprint is on the trigger. Of course, Radder would only have been able to place a bloody fingerprint on the trigger after he was shot, not before. There is also gunshot residue on Defendant‘s shirt, indicating Defendant fired the gun; despite Defendant‘s theory that Radder held the gun next to his eye, there is not one particle of gunshot residue found on Radder. Finally, no matter how Radder got from the chair to the floor, both Acosta and Griffin testified that based on the blood spatter evidence, Radder did not shoot himself with the gun.
¶ 81 We are often quick to criticize juries, but more often than not, their verdicts are based on a remarkable combination of wisdom and common sense. It is little wonder that we have placed our trust in them for centuries, and that the right to a jury trial is fundamental to our system. Duncan v. Louisiana, 391 U.S. 145, 151-54, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). There are times when they are clearly wrong, and a judge has a duty to step in and vacate a verdict that is so contrary to the weight of the evidence it is a miscarriage of justice. However, that is not the case here.
¶ 82 Accordingly, we conclude the trial court abused its discretion in granting Defendant‘s motion for new trial. We therefore reverse the order granting a new trial, reinstate the guilty verdict and remand for sentencing.
Henze Cook Murphy, PLLC By Tom Henze, Janey Henze Cook, Kiersten A. Murphy, Phoenix, Counsel for Appellant.
Judge DONN KESSLER delivered the opinion of the Court, in which Presiding Judge JON W. THOMPSON and Judge SAMUEL A. THUMMA joined.
OPINION
KESSLER, Judge:
¶ 1 Richard Taylor Burke, Sr. (“Burke“) appeals from a judgment of the Maricopa County Superior Court affirming his conviction for wilfully refusing or failing to comply with a lawful order or direction of a police officer in violation of Arizona Revised Statutes (“A.R.S.“) section
¶ 2 This case arises out of a routine traffic stop. After Burke allegedly failed to stop at a stop sign, a police officer pulled Burke over, asked him for his license and registration, and directed him not to move his vehicle. Burke disobeyed the instructions, drove his vehicle to the side of the roadway, called 911, and eventually exited his vehicle after additional officers arrived on the scene. Burke was arrested after exiting his vehicle. After a bench trial in Scottsdale Municipal Court, Burke was convicted of wilfully refusing or failing to comply with a lawful order or direction of a police officer. See
¶ 3 Burke timely appealed. Our jurisdiction is limited to reviewing the facial validity of
STANDARD OF REVIEW
¶ 4 We review the constitutionality of statutes de novo. Thiele v. City of Phoenix, 232 Ariz. 40, 42, ¶ 11, 301 P.3d 206, 208 (App.2013). “In reviewing a challenge to a statute, we presume that the statute is constitutional and must construe it, if possible, to give it a constitutional meaning.” McMahon, 201 Ariz. at 550, ¶ 5, 38 P.3d at 1215; see also Graville v. Dodge, 195 Ariz. 119, 123, ¶ 17, 985 P.2d 604, 608 (App.1999) (“We will not declare an act of the legislature unconstitutional unless convinced beyond a reasonable doubt that it conflicts with the federal or state constitutions.“). “It is the person challenging the enactment who bears the burden of establishing the contrary proposition.” Kaiser, 204 Ariz. at 517, ¶ 8, 65 P.3d at 466. As applicable here, “to successfully challenge the facial validity of a statute, the challenging party must demonstrate no circumstances exist under which the challenged statute would be found valid.” Lisa K. v. Ariz. Dep‘t of Econ. Sec., 230 Ariz. 173, 177, ¶ 8, 281 P.3d 1041, 1045 (App.2012).2
DISCUSSION
I. STANDING
¶ 5 Burke argues that
II. VAGUENESS
¶ 6 “The due process clause of the fourteenth amendment does not permit the state to deprive a person of liberty for violating a statute whose terms are ‘so vague, indefinite and uncertain’ that their meaning cannot be reasonably ascertained.” State v. Western, 168 Ariz. 169, 171, 812 P.2d 987, 989 (1991) (citation omitted). “A statute is unconstitutionally vague if it does not give persons of ordinary intelligence a reasonable opportunity to learn what it prohibits and does not provide explicit instructions for those who will apply it.” McMahon, 201 Ariz. at 551, ¶ 7, 38 P.3d at 1216. “Due process does not require, however, that a statute be drafted with absolute precision. ‘It requires only that the language of a statute convey a definite warning of the proscribed conduct.‘” Id. at ¶ 8 (internal citations omitted); see Kaiser, 204 Ariz. at 517, ¶ 9, 65 P.3d at 466 (“[T]he requirement of a ‘fair and definite warning’ does not necessitate ‘perfect notice or absolute precision’ of language.“) (quoting State v. Singer, 190 Ariz. 48, 50, 945 P.2d 359, 361 (App.1997)). In applying these principles to a facial attack on a statute, Burke must show that under no set of circumstances can the statute be constitutionally valid. See Lisa K., 230 Ariz. at 177, ¶ 8, 281 P.3d at 1045.
A. SUFFICIENT DEFINITENESS OF TERMS
1. WILFULLY FAIL OR REFUSE TO COMPLY
¶ 7 Section
¶ 8 Burke‘s assertion that the term “wilfully” is ill-defined is without merit. First, the Arizona Legislature defined the term “wilfully” in
¶ 9 Burke also argues that the phrase “wilfully fail” is a clear contradiction in terms and encompasses acts of inevitable necessity. Again, Burke‘s argument hinges on the idea that the statute lacks a mens rea requirement. Contrary to Burke‘s assertion, the statute does not punish individuals for a mere failure to obey; instead, it requires a wilful, or knowing refusal or failure to comply, which is tantamount to an affirmative act of rejection. See Kaiser, 204 Ariz. at 518, ¶ 11, 65 P.3d at 467 (“To refuse an order is an affirmative act of rejection, not a bare failure to obey but a knowing and deliberate decision to not obey.” (emphasis added)). Accordingly, the terms “wilful” and “wilfully fail,” as used in the statute, are not so indefinite as to be considered constitutionally invalid.
¶ 10 Burke‘s argument also fails because he must show that under no set of circumstances is the statute constitutional for purposes of vagueness. Although Burke posits hypothetical examples of situations when a defendant cannot physically obey an order, there are myriad examples of wilful refusals to obey an order directing action or inaction that a defendant can physically obey, such as a police officer ordering a driver to move his vehicle into a parking lot or to stop and the driver simply continues to drive until the police can stop him. Burke has not shown that the statute‘s use of “wilfully fail” or “refuse to comply” is void for vagueness on its face.
2. LAWFUL ORDER OR DIRECTION
¶ 11 Next, Burke argues that the phrase “lawful order or direction” in
People of common intelligence need not always guess at what a statute means by ‘lawful.’ Presumptively available to all citizens are the statements of law contained in statutes and in court rulings. Our cases make clear the important relevance of statutory and common law to the meaning of the concept of ‘lawfulness’ as used in legislative enactments.
Smith, 759 P.2d at 375. Other jurisdictions have also rejected the holding in Rice, finding no unconstitutional vagueness in the term “lawful order” or similar phrases in criminal trespass statutes. See, e.g., State v. Lyons, 802 S.W.2d 590, 592 (Tenn.1990) (“The term ‘lawful order’ while general in nature is not vague.“); Johnson v. State, 739 P.2d 781, 783 (Alaska Ct.App.1987) (“We believe that any possible vagueness that the phrase, ‘after being lawfully directed [to leave the premises] personally by the person in charge; imports into the statute is cured by literally reading the statute in light of the applicable mens rea.” (alteration in original)).
¶ 12 Because the term “lawful order” is not statutorily defined, “we must follow the plain and natural meaning of the language of the statute to discover what the legislature in-
tended.” State v. Arthur, 125 Ariz. 153, 155, 608 P.2d 90, 92 (App.1980); see also State v. Mahaney, 193 Ariz. 566, 568, ¶ 12, 975 P.2d 156, 158 (App.1999) (“Unless the legislature clearly expresses an intent to give a term a special meaning, we give the words used in statutes their plain and ordinary meaning.“); State v. Takacs, 169 Ariz. 392, 395, 819 P.2d 978, 981 (App.1991) (“A statute is not unconstitutionally vague because one of its terms is not explicitly defined.“). The word “lawful” is defined as including “[n]ot contrary to law” or “permitted by law.” Black‘s Law Dictionary 902 (8th ed.2004); see also Webster‘s II New Riverside University Dictionary 680 (1994) (defining “lawful” as including “[a]llowed by law,” and “[e]stablished, sanctioned, or recognized by law.“). “Order” is generally defined as including “[a] command, direction, or instruction.” Black‘s Law Dictionary at 1129; see also Webster‘s II New Riverside University Dictionary at 827 (providing that the definition for “order” includes “[a]n authoritative indication to be obeyed” or a “command“). Ultimately, when
3. LIMITING LANGUAGE
¶ 13 Burke further argues that even if the statute‘s terms were sufficiently definite to make it constitutionally understood by reasonable persons, its fatal flaw is the lack of specific temporal language regarding how quickly one must act to comply with the statute‘s terms. We agree with the State that
¶ 14 Furthermore, even if the omission of a temporal limit left some citizens uncertain about the scope of the proscribed conduct, mere uncertainty does not rise to the level of unconstitutional vagueness. The root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited. Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972). Ultimately, “[i]f a statute gives notice of prohibited conduct, it is not void for vagueness ‘simply because it may be difficult to determine how far one can go before the statute is violated.‘” State v. McLamb, 188 Ariz. 1, 5, 932 P.2d 266, 270 (App.1996) (quoting State v. Phillips, 178 Ariz. 368, 370, 873 P.2d 706, 708 (App.1994)). Ultimately, we find
B. SUFFICIENT GUIDELINES FOR ENFORCEMENT
¶ 15 Finally, Burke argues that
¶ 16 “When the language is clear, an ordinance ‘is not rendered unconstitutionally vague because there is a theoretical potential for arbitrary enforcement’ and ‘some assessment by a law enforcement officer’ may be required.” State v. Putzi, 223 Ariz. 578, 579, ¶ 5, 225 P.3d 1154, 1155 (App.2010) (quoting McLamb, 188 Ariz. at 6, 932 P.2d at 271). As we have previously noted, “[e]ven a clearly worded statute may be susceptible to
¶ 17 Burke relies on United States ex rel. Newsome v. Malcolm, 492 F.2d 1166 (2d Cir.1974), Derby v. Town of Hartford, 599 F.Supp. 130 (D.Vt.1984), and Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971), to support his argument that the alleged temporal deficiency in
CONCLUSION
¶ 18 For the foregoing reasons, we affirm.
DONN KESSLER
JUDGE