State v. Starnes

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

DB STARNES, III, Appellant.

No. 1 CA-CR 19-0352
FILED 07-21-2020

Appeal from the Superior Court in Maricopa County
No. CR2015-002033-001
The Honorable Mark H. Brain, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael T. O’Toole
Counsel for Appellee

Michael J. Dew Attorney at Law, Phoenix
By Michael J. Dew
Counsel for Appellant
 STATE v. STARNES
Decision of the Court

MEMORANDUM DECISION

Judge David B. Gass delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Michael J. Brown joined.

G A S S, Judge:

¶1 DB Starnes III appeals his second-degree murder conviction.
For the following reasons, this court affirms.

FACTUAL1 AND PROCEDURAL HISTORY

¶2 In February 2015, Starnes and his girlfriend at the time, S.L.,
went barhopping in Scottsdale with a group of friends. Starnes abruptly
left the group while S.L. stayed out. S.L. and a friend later took a taxi from
the bars back to her apartment, which S.L. shared with Starnes.

¶3 Before arriving home, S.L. sent Starnes a picture of herself,
her friend, and their taxi driver, A.C., to show Starnes she was angry with
him and “done.” When S.L. arrived at their apartment, she texted her
pinpoint location to Starnes. Starnes went to the taxi and a fight broke out
between Starnes and A.C. At one point, S.L. tried to stop the fight, but
Starnes shoved her to the ground. Starnes punched A.C. with his fists and
kicked him after he was laying on the ground unconscious. S.L. testified
she heard A.C. making gurgling noises as if he was trying to breathe.

¶4 A neighbor—awakened by the taxi’s alarm—called 911.
When the police arrived, they could not find Starnes and had to search for
him throughout the apartment complex. About an hour and a half later,
the police found Starnes crouched underneath a staircase with his dog.
The police advised Starnes of his rights and then questioned him.

¶5 A.C. was taken to the hospital, but by then he was not
responsive. After 11 days in the intensive care unit, A.C. was discharged

1 This court reviews the facts in the light most favorable to sustaining
the jury’s verdict, resolving all reasonable inferences against Starnes. See
State v. Felix, 237 Ariz. 280, 283, ¶ 2 (App. 2015). This court does not
reweigh the evidence or assess witness credibility, because those are jury
functions. See State v. Williams, 209 Ariz. 228, 231, ¶ 6 (App. 2004).

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 STATE v. STARNES
Decision of the Court

to hospice. He died nine days later. The cause of death was complications
of blunt force trauma to the head.

¶6 A grand jury indicted Starnes on three counts: (1) second-
degree murder, a class 1 felony; (2) assault, a class 3 misdemeanor; and (3)
criminal damage, a class 2 misdemeanor. Starnes testified at trial, claiming
he acted in self-defense. While finalizing jury instructions, both the
prosecution and defense counsel agreed to move forward with jury
instructions for second-degree murder only, and not any lesser-included
offenses such as manslaughter.

¶7 A jury convicted Starnes on all three counts. The jury also
found aggravation because the murder caused emotional or financial
harm to the victim’s immediate family. The superior court sentenced
Starnes to 20 years of imprisonment on the second-degree murder charge
and concurrent time served on the two misdemeanor counts. The superior
court gave Starnes 1,592 days of presentence incarceration credit.

¶8 Starnes timely appealed. Jurisdiction is proper under Article
6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21.A.1, 13-
4031, and 13-4033.A.1.

ANALYSIS

¶9 Starnes told the superior court he did not want the jury
instructed on lesser-included offenses. He now argues his second-degree
murder conviction should be reversed because the superior court did as
he requested.

¶10 When a defendant expressly declines to have the superior
court give a lesser-included offense instruction, the invited error doctrine
applies. See State v. Fish, 222 Ariz. 109, 132, ¶ 80 (App. 2009). A conviction,
therefore, will not be reversed even if the superior court erred when it did
not give the instruction. Id. Further, when an error is invited, this court
does not consider whether the error is fundamental. See State v. Logan, 200
Ariz. 564, 565, ¶ 9 (2001). “The purpose of this doctrine is to prevent a
party from injecting error in the record and then profiting from it on
appeal.” State v. Mendoza, 248 Ariz. 6, 17, ¶ 20 (App. 2019) (internal
quotations omitted). To determine whether the invited error doctrine
applies here, this court looks to the source of the error to determine if
Starnes affirmatively initiated it. See Logan, 200 Ariz. at 566, ¶ 11.

¶11 Starnes’ counsel expressly informed the superior court he
did not want to include jury instructions on the lesser-included offense of

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Decision of the Court

manslaughter. The superior court began the discussion by saying, “well, if
I understood right, the defendant was thinking he’d just go with as
charged, and now the State was thinking about lesser-include[d]s.”
Starnes’ counsel then affirmed Starnes wanted to continue as charged and
did not want instructions on any lesser-included offenses.

¶12 The superior court then told both the prosecution and
defense counsel they were “entitled to as many lesser-includeds as they
want, essentially, so long as [they] can support it.” The prosecution stated
it did not want to include any lesser-included offenses, and discussed
removing language in the jury instructions on “heat of passion” because it
was only applicable on the lesser charge of manslaughter. Defense counsel
responded, “we would agree then that if we’re not doing the lesser, then
that paragraph doesn’t make sense to keep.”

¶13 Starnes argues his second-degree murder conviction should
be reversed for fundamental error under State v. Valenzuela, 194 Ariz. 404
(1999). Valenzuela, however, is distinguishable. In Valenzuela, the superior
court judge concluded the evidence supported giving an instruction for
reckless manslaughter, but inadvertently failed to give the instruction to
the jury. See 194 Ariz. at 405, ¶ 1. The jury convicted the defendant of
second-degree murder. Id. Our Supreme Court reversed the conviction
because the superior court committed fundamental error when it failed to
give the lesser-included instruction. Id. at 407-08, ¶¶ 16-17.

¶14 The difference between Valenzuela and this case is
dispositive—Starnes expressly asked not to have jury instructions on
lesser-included offenses. He invited the error. The superior court,
therefore, did not err when it only instructed the jury on second-degree
murder.

CONCLUSION

¶15 This court affirms.

AMY M. WOOD • Clerk of the Court
FILED: JT

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