State v. Decker

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

CURTIS DEWAYNE DECKER, Appellant.

No. 1 CA-CR 14-0238

FILED 1-7-2016

Appeal from the Superior Court in Maricopa County

No. CR2012-135551-001

The Honorable Pamela S. Gates, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Terry M. Crist

Counsel for Appellee

Maricopa County Office of the Legal Advocate, Phoenix

By Kerri L. Chamberlin

Counsel for Appellant

STATE v. DECKER

Opinion of the Court

OPINION

Judge Kent E. Cattani delivered the opinion of the Court, in which

Presiding Judge Diane M. Johnsen and Judge John C. Gemmill joined.

C A T T A N I, Judge:

¶1 In this case we address whether firing a bullet into a

residence constitutes “entry” for purposes of establishing first-degree

burglary. Given Arizona’s expansive statutory definition of entry, and in

light of the property, possessory, and privacy interests that the offense of

burglary is intended to protect, we conclude that a projectile intruding

into a protected space satisfies the entry requirement for burglary. We

further address and reject a claim regarding the superior court’s denial of

Batson1 challenges to the State’s peremptory strikes of two potential jurors.

Accordingly, and for reasons that follow, we affirm Curtis Dewayne

Decker’s convictions of first-degree murder and burglary.

FACTS AND PROCEDURAL BACKGROUND

¶2 The victim lived with his girlfriend and her mother, Judy, in

Judy’s apartment. Decker was friends with Judy and visited her regularly.

One day, Decker and the victim fought in Judy’s apartment. After

pushing each other and wrestling, the victim drew a knife and cut

Decker’s face. Decker told the victim to step outside to “finish this,” but

the victim stayed inside and Decker rode away on a bicycle.

¶3 About 20 minutes later, Decker returned with two or three

people in a car. They all got out of the car, and Decker walked to Judy’s

front door. The apartment manager—looking on from her own

apartment—saw Judy standing beside the open door as Decker stood in

the doorway, drew a gun, and quickly fired three shots. Decker then

laughed, put the gun in his pocket, and left in the car. The victim, who

was inside Judy's apartment, died from two close-range gunshot wounds

to the chest. Judy later told the victim’s daughter that she had seen

Decker “in the doorway” and that Decker had shot the victim.

1 Batson v. Kentucky, 476 U.S. 79 (1986).

2

STATE v. DECKER

Opinion of the Court

¶4 After the apartment manager identified Decker from a

photographic lineup, Decker was arrested and charged with first-degree

murder and first-degree burglary. After an initial mistrial due to a hung

jury, Decker was convicted as charged, with the jury unanimously finding

both premeditated and felony murder. Decker was sentenced to

concurrent terms of life in prison with the possibility of release after 25

years for the murder conviction and 10.5 years for the burglary conviction,

and he timely appealed. We have jurisdiction under Arizona Revised

Statutes (“A.R.S.”) § 13-4033.2

DISCUSSION

I. Batson Challenges.

¶5 Decker argues that the superior court erred by denying his

Batson challenges to the State’s peremptory strikes of prospective Juror 1

and Juror 76. We review the superior court’s denial of a Batson challenge

for clear error, deferring to the court’s first-hand assessment of the

prosecutor’s credibility. See State v. Garcia, 224 Ariz. 1, 10, ¶ 22 (2010).

¶6 The Equal Protection Clause of the Fourteenth Amendment

prohibits use of a peremptory strike to exclude a potential juror on the

basis of race. Batson, 476 U.S. at 89. Batson challenges are assessed in three

stages: “(1) the party challenging the strikes must make a prima facie

showing of discrimination; (2) the striking party must provide a race-

neutral reason for the strike; and (3) if a race-neutral explanation is

provided, the trial court must determine whether the challenger has

carried its burden of proving purposeful racial discrimination.” State v.

Cañez, 202 Ariz. 133, 146, ¶ 22 (2002). The opponent of the strike bears the

burden of showing racial motivation. Garcia, 224 Ariz. at 10, ¶ 21.

¶7 Decker’s counsel first objected to the prosecutor’s

peremptory strike of Juror 76, who was one of three African American

potential jurors, noting that Decker is also African American, and arguing

that Juror 76’s limited comments during voir dire did not indicate an

inability to be fair and impartial. In response, the prosecutor offered two

reasons for the strike: (1) he knew comparatively less about Juror 76 than

others in the venire because Juror 76 had answered only the standard

biographical questions asked of each potential juror but had not otherwise

2 Absent material revisions after the relevant date, we cite a statute’s

current version.

3

STATE v. DECKER

Opinion of the Court

spoken during voir dire and (2) Juror 76 had failed to follow the court’s

instruction to remain outside the courtroom during a break. The judge

noted that she had observed Juror 76 entering the courtroom

unaccompanied while the lawyers were speaking about the case, despite

having been instructed that jurors should not enter the courtroom unless

escorted by the bailiff. The court found this to be a race-neutral reason for

the strike, and thus denied Decker’s challenge.

¶8 Decker next objected to the State’s subsequent strike of Juror

1, an African American woman, alleging a pattern of discrimination based

on the State’s strikes of two of the three African American potential jurors.

The prosecutor again offered two reasons for the strike: (1) he knew very

little about Juror 1 because she also had only answered the standard

biographical questions at the end of voir dire and (2) Juror 1 appeared to

have dozed off at times, and her demeanor—arms crossed, hand in

pocket—made her seem uninterested in the proceedings. The prosecutor

noted that he had also struck Juror 47, who was not African American, for

lack of information because he had only answered the biographical

questions at the end of voir dire. Although the judge did not observe

Juror 1’s demeanor because she was not in the judge’s line of sight, the

court found lack of information and uninterested demeanor to be race-

neutral reasons for the strike, and thus denied Decker’s Batson challenge.

The court later noted that one African American (Juror 56) was selected to

serve on the jury.

¶9 Relying on Miller-El v. Dretke, 545 U.S. 231 (2005), Decker

argues that the prosecutor’s “lack-of-information” explanation for the

strikes was pretextual because the prosecutor could have questioned

Jurors 1 and 76 to elicit additional information, but chose not to do so. In

Miller-El, the prosecutor, apparently as an afterthought, offered the prior

conviction of a potential juror’s brother as a reason for striking the juror.

Id. at 246. The failure to ask additional questions after the prospective

juror stated “I don’t really know too much about it”—along with other

indicators of pretext—belied the importance the prosecutor later

attributed to the family history. Id. Here, in contrast, there was no

discrete issue about which the State had expressed a concern and which

might have warranted follow-up questioning.

¶10 Although “lack of information” is generally an unpersuasive

rationale for striking a prospective juror, Decker did not show that the

strikes represented purposeful racial discrimination. See Cañez, 202 Ariz.

at 146, ¶ 22. The prosecutor apparently struck a non-African American

juror for the same lack-of-information reason, and the fact that an African

4

STATE v. DECKER

Opinion of the Court

American was impaneled, although not dispositive by itself, also suggests

that the two challenged strikes did not establish a pattern of racial

discrimination. See State v. Roque, 213 Ariz. 193, 204, ¶ 15 (2006).

¶11 More importantly, the prosecutor offered an additional

relevant and facially race-neutral reason for each strike. The judge

confirmed the prosecutor’s observation of Juror 76 failing to follow the

court’s instructions and implicitly found credible the prosecutor’s account

of Juror 1’s dozing and inattentiveness, and we defer to the superior

court’s first-hand observations and credibility determinations. See State v.

Newell, 212 Ariz. 389, 401, ¶ 54 (2006). Under the circumstances, and

particularly in light of the additional reason offered for each strike, the

superior court did not err by denying Decker’s Batson challenges.

II. Projectile Theory of Entry for Purposes of Burglary.

¶12 Decker next argues that the evidence was insufficient to

establish entry into the apartment as necessary to support his burglary

conviction.

¶13 In closing argument, the prosecutor argued that a projectile

fired into a residence—in this case, the bullets fired from the gun Decker

used to shoot the victim—could establish the element of entry necessary to

prove he committed burglary. Decker objected, arguing the prosecutor

had misstated the law, but the court overruled Decker’s objection.

Although the prosecutor posited in the alternative that Decker had

physically entered the apartment, both the prosecutor’s and defense

counsel’s arguments regarding this element of the offense focused

predominantly on the projectile theory of entry.

¶14 We generally review the superior court’s rulings controlling

closing argument for an abuse of discretion. State v. Lynch, 238 Ariz. 84,

97, ¶ 33 (2015). We consider de novo, however, the court’s construction of

a statute, looking first to the provision’s plain language and considering

the common meaning of any undefined terms. State ex rel. Montgomery v.

Harris (Shilgevorkyan), 237 Ariz. 98, 100, ¶ 8 (2014); State v. Pena, 235 Ariz.

277, 279, ¶ 6 (2014); see also A.R.S. § 1-213 (stating that statutes should be

construed based on the common meaning of words and phrases, unless

subject to an established legal definition). We may consult dictionaries to

determine the ordinary meaning of statutory terms. Pena, 235 Ariz. at 279,

¶ 6; State v. Gill, 235 Ariz. 418, 420 n.1, ¶ 8 (App. 2014).

¶15 As relevant here, an individual commits first-degree

burglary by “entering or remaining unlawfully in or on a residential

5

STATE v. DECKER

Opinion of the Court

structure with the intent to commit any theft or any felony therein” while

knowingly possessing a deadly weapon. A.R.S. §§ 13-1508(A), -1507(A).

The only element at issue here is the requirement of entry.

¶16 A.R.S. § 13-1501(3) defines “entry” as “the intrusion of any

part of any instrument or any part of a person’s body inside the external

boundaries of a structure or unit of real property.” Thus, by its terms, the

statute allows entry by an instrument alone, even if no part of the

perpetrator’s body crosses the threshold. Id.; see also State v. Kindred, 232

Ariz. 611, 614, ¶ 9 (App. 2013) (concluding that insertion of a pry bar into

a door jamb constituted entry).

¶17 Although the statute does not define “instrument,” the term

is generally understood to mean “[a] tool or implement used to do or

facilitate work.” American Heritage Dictionary 910 (5th ed. 2011); see also

Instrument Definition, Oxford English Dictionary Online (“OED”) (Oxford

Univ. Press 2015) (defining an instrument as “a thing with or through

which something is done or effected; . . . a means” or as “[a] material thing

designed or used for the accomplishment of some mechanical or other

physical effect; a mechanical contrivance (usually one that is portable, of

simple construction, and wielded or operated by the hand); a tool,

implement, weapon”).

¶18 This common understanding is consistent with the statutory

definition of a “dangerous instrument” (found in another section of the

criminal code) as “anything that under the circumstances in which it is

used, attempted to be used or threatened to be used is readily capable of

causing death or serious physical injury.” A.R.S. § 13-105(12). When

considered without the “dangerous” limitation (“readily capable of

causing death or serious physical injury”), that definition in effect

acknowledges that an instrument is anything used for a purpose. See id.

¶19 The question thus becomes whether a projectile bullet can be

characterized as a tool or implement used to do work that intrudes into

the residence. Because a person firing a bullet, even if from outside a

doorway, is using the projectile as a means to accomplish a task within the

residence—here, murder—the bullet qualifies as an instrument that can

“enter” a structure for purposes of burglary.

¶20 Decker acknowledges that the gun he was holding would be

an instrument for these purposes, but he argues that the projectile bullet is

not an instrument. First, Decker posits that the bullet on its own is not a

tool; rather, the gun is a tool and the bullet just another object used in

6

STATE v. DECKER

Opinion of the Court

carrying out the gun’s purpose. But the use of a bullet is not substantively

different than, for instance, a knife thrown from outside the doorway.

That the perpetrator uses another instrument to accelerate the bullet does

not change the fact that the bullet itself is an instrument that causes

damage across the threshold. See OED (defining an instrument as “a thing

with or through which something is done or effected; . . . a means”).

¶21 Decker also suggests that an instrument for these purposes

must be handheld so as to approximate personal entry by the perpetrator.

But the current statutory definition does not restrict entry-by-instrument

to only objects held by or physically connected to the perpetrator. A.R.S.

§ 13-1501(3) (“any part of any instrument or any part of a person’s body”)

(emphasis added). Moreover, Arizona’s burglary statutes previously

restricted entry-by-instrument to only “an instrument or weapon held in

[the] hand,” A.R.S. § 13-301(1) (1956); the Legislature removed this

“handheld” requirement when enacting the 1978 Criminal Code. See

A.R.S. § 13-1501(2) (1978). This legislative change supports the conclusion

that entry-by-instrument under the current statutory definition

encompasses entry by a projectile.

¶22 Holding that intrusion by a projectile may constitute entry

(when accompanied by the requisite felonious intent) is also consistent

with the purposes underlying criminalizing burglary. At their core,

burglary statutes are intended to “protect the security of the home, and

the person within his home.” Kindred, 232 Ariz. at 614, ¶ 8 (citation

omitted); see also Arizona Criminal Code Commission, Arizona Revised

Criminal Code 159 (1975) (“The essence of the offense of burglary is the

unauthorized invasion of protected premises.”). The offense recognizes

the “heightened expectation of privacy and possessory rights of

individuals in structures and conveyances” and penalizes violation of the

victim’s property, possessory, and privacy rights within his or her home.

State v. Hinden, 224 Ariz. 508, 511, ¶ 13 (App. 2010) (quoting 12A C.J.S.

Burglary § 1, at 53 (2004)); see also Gill, 235 Ariz. at 421, ¶ 13; Minturn T.

Wright, III, Note, Statutory Burglary—The Magic of Four Walls and A Roof,

100 U. Pa. L. Rev. 411, 427 (1951) (characterizing common law burglary as

an “offense against the habitation”).

¶23 The victim’s interest in protecting his or her space does not

vary depending on how the perpetrator invades that space. The intrusion

of a bullet fired from just outside the open doorway no less disrupts the

victim’s security in his or her home than one fired after the muzzle of the

gun crosses the threshold.

7

STATE v. DECKER

Opinion of the Court

¶24 Finally, we note that, even in jurisdictions that have not

defined “entry” by statute, courts have similarly recognized, based on

burglary’s common law underpinnings, that projectile instruments can

accomplish an entry if used “to consummate a criminal objective.”3 See

Commonwealth v. Cotto, 752 N.E.2d 768, 771 (Mass. App. Ct. 2001) (holding

that a bottle containing gasoline thrown through a window and used to

start a fire inside an apartment constituted entry); State v. Williams, 873

P.2d 471, 474 (Or. Ct. App. 1994) (holding that bullets fired into a house,

intended to intimidate a witness, constituted entry); cf. Ex parte Hyde, 778

So. 2d 237, 239 n.2 (Ala. 2000) (rejecting entry by bullet based on a state

law requiring “entry by some part of the defendant’s body”). Our

interpretation of “entry” is thus also consistent with the “conceptual

broadening of [common law] burglary” as reflected in our burglary

statutes. See Gill, 235 Ariz. at 421, ¶ 13.

¶25 Accordingly, we conclude that bullets fired into a structure,

assuming all other elements of the offense are met, constitutes entry

sufficient to support a burglary conviction. The prosecutor’s argument to

that effect thus correctly stated Arizona law, the superior court did not err

by denying Decker’s objection, and sufficient evidence supported Decker’s

burglary conviction.

3 Traditional common law treatises reflect no consensus view on

entry-by-projectile. Compare 2 Edward Hyde East, A Treatise of the Pleas of

the Crown § 7, at 490 (1803) (recognizing disagreement among authorities

regarding whether a projectile bullet could constitute entry, but

concluding there is no substantive distinction between an instrument

“holden in the hand” and one “discharged from it”), 1 William Hawkins,

A Treatise of the Pleas of the Crown, ch. 17, § 11 (8th ed., 1824) (positing entry

by “discharge [of] a loaded gun into a house”), with 4 William Blackstone,

Commentaries *227 (recognizing entry by “an instrument held in the

hand”), 1 Matthew Hale, The History of the Pleas of the Crown, 554–55 (1st

Am. ed. 1847) (“But if he shoots without the window, and the bullet comes

in, this seems to be no entry to make burglary; quaere.”).

More modern treatises that address the issue, however, generally

recognize entry-by-projectile. See 3 Wharton’s Criminal Law § 333 (14th

ed. 1980 & supp. 1994) (recognizing “entry” “when the defendant, while

standing outside, fires a bullet which pierces a window and lands inside,

the gun having been discharged for the purpose of killing the occupant”),

Nolan & Henry, Criminal Law § 403 (2d ed. 1988) (“If [a bullet is] fired to

kill a person inside, probably an entering could be found.”).

8

STATE v. DECKER

Opinion of the Court

CONCLUSION

¶26 For the foregoing reasons, we affirm Decker’s convictions

and sentences.

:ama

9