State of Arizona v. Heulon Colston Brown

FILED BY CLERK
SEP 27 2013
COURT OF APPEALS
IN THE COURT OF APPEALS DIVISION TWO

STATE OF ARIZONA
DIVISION TWO

THE STATE OF ARIZONA, ) 2 CA-CR 2012-0124
) DEPARTMENT B
Appellee, )
) OPINION
v. )
)
HEULON COLSTON BROWN, )
)
Appellant. )
)

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. CR20103108002

Honorable Richard S. Fields, Judge

AFFIRMED

Thomas C. Horne, Arizona Attorney General
By Joseph T. Maziarz and Joseph L. Parkhurst Tucson
Attorneys for Appellee

Barton & Storts, P.C.
By Brick P. Storts, III Tucson
Attorneys for Appellant

E S P I N O S A, Judge.
¶1 After a jury trial, appellant Heulon Brown was convicted of first-degree

felony murder, first-degree burglary, four counts of attempted armed robbery, and five

counts of aggravated assault. He was sentenced to concurrent prison terms, the longest

being life with the possibility of release after twenty-five years. On appeal, he argues the

trial court erred by failing to suppress his pretrial statements and failing to give certain

jury instructions. He also contends Arizona’s felony-murder statute is unconstitutional.

Finding no error, we affirm.

Factual and Procedural Background

¶2 “We view the facts in the light most favorable to sustaining the

convictions.” State v. Robles, 213 Ariz. 268, ¶ 2, 141 P.3d 748, 750 (App. 2006). One

evening in August 2010, four armed, masked men, including Brown, went to the door of

an apartment and a fifth man, E.V., who was not masked, was forced to enter the

apartment at gunpoint ahead of them. Immediately after opening the door, E.V., who was

known to the apartment’s occupants, dropped to the floor, placed his hands on his head,

and curled into a ball while the gunmen ordered the occupants to “get on the ground.”

One of those occupants, J.J., had a gun and shot at the masked men, killing Michael

White and injuring Brown. During the exchange, J.J. and A.B., a minor who was in the

apartment, also were shot and injured.

¶3 At trial, Brown’s defense was that he, like E.V., had been forced to

participate in the home invasion. He was convicted and sentenced as described above

2
and now appeals. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031,

and 13-4033(A).

Suppression of Statements

¶4 Brown argues the trial court erred by not suppressing statements he had

made to police while he was hospitalized after surgery immediately following the

incident. We review the denial of a motion to suppress evidence for an abuse of

discretion. See State v. Peterson, 228 Ariz. 405, ¶ 6, 267 P.3d 1197, 1199 (App. 2011).

In our review, we look only to the evidence presented at the suppression hearing and

view it in the light most favorable to sustaining the court’s ruling, see State v. Gay, 214

Ariz. 214, ¶ 4, 150 P.3d 787, 790 (App. 2007), deferring to the court’s determination of

facts and witness credibility but reviewing de novo its legal conclusions, see State v.

Gonzalez-Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996).

¶5 Following the home invasion, Brown, who had been shot in the chest, was

taken to Tucson’s University Medical Center where he underwent emergency surgery.

The same day, approximately six hours after the surgery, police detectives questioned

him about the incident (the August 26 interview). At the beginning of the interview,

Detective Diaz informed Brown that he was being detained and advised him of his rights

pursuant to Miranda,1 after which Brown said, “I’ll answer your questions.” Although

Brown had been given medication, Detective Cassel noted that the conversation was

“normal” and “coherent,” and “nothing . . . was limiting [Brown’s] ability to

1
Miranda v. Arizona, 384 U.S. 436 (1966).
3
communicate.” Diaz similarly noted that Brown was lucid and able to engage in active

conversation. At the conclusion of the interview, Brown was informed he was under

arrest.

¶6 At approximately two o’clock the following morning, Diaz returned to the

hospital and continued questioning Brown (the August 27 interview). The detective

asked, “Obviously, you remember your rights from yesterday and you still understand

them, we’re still good with that? Yeah?” Brown responded, “Ah-[h]ah,” and proceeded

to answer questions. At no point during either interview did Brown invoke his right to

remain silent or his right to counsel. Finally, seven days later, while still hospitalized,

Brown initiated a conversation with Diaz (the September 3 interview). The detective did

not remind him of his rights, and Brown made additional statements. Before trial, Brown

moved to suppress all of his statements on the ground he had not given them voluntarily.

The trial court denied the motion after conducting an evidentiary hearing, and statements

from the three interviews were introduced at trial.

Voluntariness

¶7 On appeal, Brown maintains that his statements were involuntary and

should have been suppressed. We will not overturn a trial court’s determination of

voluntariness absent clear error. See State v. Graham, 135 Ariz. 209, 211, 660 P.2d 460,

462 (1983). Confessions are presumed to be involuntary, and the state has the burden of

demonstrating voluntariness by a preponderance of the evidence. State v. Tapia, 159

Ariz. 284, 287, 767 P.2d 5, 8 (1988). In considering whether a confession is voluntary, a

4
court must determine whether, under the totality of the circumstances, the will of the

defendant was overborne. State v. Hall, 120 Ariz. 454, 456, 586 P.2d 1266, 1268 (1978).

A defendant’s mental or physical condition is relevant to the inquiry, but generally is

insufficient by itself to render a statement involuntary. State v. Smith, 193 Ariz. 452,

¶ 14, 974 P.2d 431, 436 (1999); cf. Mincey v. Arizona, 437 U.S. 385, 398-402 (1978)

(confession involuntary where defendant seriously wounded, evidently confused, still in

hospital’s intensive care unit and encumbered by medical apparatus, complained of

“unbearable” pain, asked for the interrogation to stop, and repeatedly lost consciousness).

¶8 Brown argues he “was not in a mental condition to comprehend the nature

and import of the [Miranda] warning” he received. He asserts he “had been shot and was

in critical condition and strongly medicated” and therefore the questioning was “coercive

in nature, causing [his] statements to be . . . involuntary.” But no evidence was

introduced at the hearing to support the contention that he was strongly medicated, in

critical condition, or that he did not understand what was happening.

¶9 Instead, although detectives observed that Brown was “hooked up to many

monitors and . . . an IV,” and that he appeared to be in pain, they testified he was “lucid”

and able to engage in active conversation, his answers to their questions were coherent

and responsive, and “nothing . . . was limiting his ability to communicate.” Brown at one

point requested pain medication, and the nurse informed him she would provide the

medication as soon as the interview was over. Brown did not ask for the questioning to

stop, nor did he repeat his request for pain medication.

5
¶10 The detectives made no promises or threats to Brown. And, after informing

him of the nature of the questions they wanted to ask, about a minute into the encounter

the detectives read him his rights, which he said he understood. 2 Brown agreed to

continue answering questions, and did so for about an hour. Nothing in the recording of

the interview or the suppression testimony indicated Brown’s will had been overborne.

The trial court reviewed and considered the audio recording of the interview when

determining voluntariness, as have we, and it supports the court’s ruling. Under these

circumstances, we find no abuse of discretion in the court’s finding that Brown’s

statements were voluntary. And because his arguments relating to the voluntariness of

the statements given in the subsequent interviews hinge on a finding of involuntariness in

the first, we need not address them.

¶11 Brown also maintains that because the statements were not suppressed, he

was required “to testify in an effort to explain the[ir] content and discrepancies,” which

both violated his right to remain silent and “made him appear to be a liar and severely

prejudiced his defense.” He did not object on this basis below and we therefore review

only for fundamental, prejudicial error. See State v. Valverde, 220 Ariz. 582, ¶ 12, 208

P.3d 233, 236 (2009). But he does not argue on appeal that the error is fundamental, and

because we see no error, fundamental or otherwise, the argument is waived. See State v.

2
Despite stating that “detectives read [Brown’s] Miranda rights at the time of the
first interview,” counsel later asserts “there was no evidence on the record to suggest that
[he] had ever been informed or made aware of his right to the assistance of counsel
during the interview.” The record belies that assertion.
6
Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008) (fundamental

error argument waived on appeal); see also Harrison v. United States, 392 U.S. 219, 222

(1968) (“A defendant who chooses to testify waives his privilege against compulsory

self-incrimination . . . and that waiver is no less effective or complete because the

defendant may have been motivated to take the witness stand in the first place only by

reason of the strength of the lawful evidence adduced against him.”).

Right to Counsel and Timely Initial Appearance

¶12 Brown next contends the statements he made while hospitalized should

have been suppressed because they were taken in violation of his Fifth and Sixth

Amendment rights to counsel and a timely initial appearance.3 He asserts these grounds

for the first time on appeal; we therefore review for fundamental error. Valverde, 220

Ariz. 582, ¶ 12, 208 P.3d at 236; see also State v. Lopez, 217 Ariz. 433, ¶ 4, 175 P.3d

682, 683 (App. 2008) (“[A] general objection is insufficient to preserve an issue for

appeal,” and “an objection on one ground does not preserve the issue on another

ground.”).

¶13 Brown acknowledges that his right to counsel under the Sixth Amendment

had not attached when he gave his statements. See McNeil v. Wisconsin, 501 U.S. 171,

3
Brown also suggests he was deprived of due process in violation of the
Fourteenth Amendment of the United States Constitution and article II, § 4 of the
Arizona Constitution. Because he fails to make any substantial argument to support this
claim, however, it is abandoned. See State v. Nirschel, 155 Ariz. 206, 208, 745 P.2d 953,
955 (1987) (“Failure to argue a claim constitutes abandonment and waiver of that
issue.”).
7
175 (1991) (Sixth Amendment right to counsel does not attach until initiation of

adversary judicial criminal proceedings, “‘whether by way of formal charge, preliminary

hearing, indictment, information, or arraignment’”), quoting United States v. Gouveia,

467 U.S. 180, 188 (1984). He contends, however, that under Rule 6.1(a), Ariz. R.

Crim. P., he had a right to consult with counsel “as soon as feasible after [being] taken

into custody,” (emphasis omitted) and that this right was denied.

¶14 Brown is correct that he had a right to consult with counsel—indeed,

Detective Diaz informed him of the right before beginning the August 26 interview and

confirmed his understanding before the August 27 interview. But Brown waived that

right by failing to invoke it. See State v. Eastlack, 180 Ariz. 243, 250-51, 883 P.2d 999,

1006-07 (1994) (suspect must clearly invoke right to counsel). Accordingly, the trial

court did not commit fundamental error by failing to suppress his statements on this

ground.

¶15 Brown also argues that he was denied his right to a timely initial

appearance, which in turn prevented the attachment of his Sixth Amendment right to

counsel. Rule 4.1(a), Ariz. R. Crim. P., provides that an arrested person must be brought

before a magistrate “without unnecessary delay” and that if this initial appearance does

not occur within twenty-four hours after arrest, the person must be released. The

comment to the 2007 amendment of Rule 4.1(a) explains that “[t]his provision defines the

applicable standard of promptness as without unreasonable delay and in no event more

than 24 hours after arrest.” The state argues that the twenty-four hour rule was

8
“impracticable” and there was no Rule 4.1 violation because the delay in bringing Brown

before a magistrate was due to his hospitalization—thus, not “unnecessary”—and he was

given his initial appearance the same day he was released from the hospital.4

¶16 The parties cite no Arizona authority, nor do we find any, addressing

whether a defendant’s hospitalization excuses delay in providing him or her with an

initial appearance. We find guidance, however, in decisions from other jurisdictions

holding that delay arising from a need to provide the accused with medical treatment is

excusable under their respective rules requiring an initial appearance without unnecessary

delay. See, e.g., United States v. George, 987 F.2d 1428, 1431 (9th Cir. 1993) (eleven-

day delay between arrest and arraignment caused by medical necessity did not violate

federal rule requiring arraignment “without unnecessary delay”); In re Walker, 518 P.2d

1129, 1137-38 (Cal. 1974) (rule requiring initial appearance within two days of arrest not

violated by eleven-day delay caused by defendant’s hospitalization); Green v. State, 274

N.E.2d 267, 271 (Ind. 1971) (no illegal detention during injured arrestee’s hospitalization

to treat gunshot wounds; “right to an immediate hearing is necessarily waived for the
4
Even had Brown’s detention been unlawful, his statements would not necessarily
be subject to suppression. Arizona has rejected a rule that statements obtained during a
delay in providing an initial appearance must automatically be excluded from evidence.
State v. Jordan, 83 Ariz. 248, 256, 320 P.2d 446, 451 (1958). Instead, such statements
must be suppressed only if they were involuntary. State v. Sheffield, 97 Ariz. 61, 64-65,
396 P.2d 828, 830 (1964); Hightower v. State, 62 Ariz. 351, 357, 158 P.2d 156, 158
(1945). As discussed above, Brown’s statements were voluntary. We note, however, that
several of these cases were decided before the exclusionary rule had been made
applicable to the states. See Mapp v. Ohio, 367 U.S. 643, 655 (1961) (exclusionary rule
binding on states through the Fourteenth Amendment, which guarantees due process).

9
benefit of the injured accused”); People v. Frazier, 354 N.W.2d 332, 335-36 (Mich. Ct.

App. 1984) (delay between arrest and arraignment occasioned by defendant’s need for

medical treatment “cannot be considered unnecessary”); State v. Plouffe, 646 P.2d 533,

534-35, 537 (Mont. 1982) (delay in bringing defendant before magistrate not

unreasonable where defendant hospitalized after ingesting poison); State v. LaPierre, 188

A.2d 10, 18 (N.J. 1963) (deducting period of arrestees’ hospitalization from time between

arrest and appearance before magistrate).

¶17 We find the case of In re Walker, 518 P.2d 1129 (Cal. 1974), particularly

persuasive. There, the California Supreme Court held that a delay of eighteen days in

bringing the defendant before a magistrate was not impermissible where the defendant

was hospitalized for ten of those days to receive medical treatment for gunshot wounds

he received while being arrested. Id. at 1135-38. Although § 825 of the California Penal

Code requires that a defendant “must in all cases be taken before the magistrate without

unnecessary delay, and, in any event, within two days after his arrest,” the court

concluded “it would be an unreasonable application of that section to require that a

hospitalized defendant be taken before a magistrate until it was possible to do so without

jeopardy to his health.” Id. at 1138.

¶18 We agree with the reasoning of the above decisions and conclude that

because the necessity of Brown’s medical treatment caused the delay in providing his

initial appearance and he was brought before a magistrate within twenty-four hours of his

release from the hospital, the delay was neither unnecessary nor unlawful. Accordingly,

10
Brown has demonstrated no fundamental error, on this record, by the introduction at trial

of his hospital statements.5 See United States v. Redlightning, 624 F.3d 1090, 1109 (9th

Cir. 2010) (where portion of delay due to government’s conduct not unreasonable, no

violation of prompt presentment requirement and district court did not err in refusing to

suppress confession); United States ex rel. Dove v. Thieret, 693 F.Supp. 716, 722 (C.D.

Ill. 1988) (“it is clear that the Sixth Amendment right to counsel does not accrue prior to

the initiation of formal adversarial judicial proceedings simply because police interrogate

an individual”); Green, 274 N.E.2d at 271 (statements made while in hospital admissible

despite lack of counsel because “right to an immediate hearing is necessarily waived for

the benefit of the injured accused”); People v. Solorzano, 944 N.Y.S.2d 154, 155 (N.Y.

App. Div. 2012) (“To suppress a statement . . . there must be evidence that [presentment]

delay was for the purpose of depriving the defendant of the right to counsel and obtaining

an involuntary confession, and that this delay was strategically designed so that an

accused could be questioned outside the presence of counsel.”) (citation omitted); see

also People v. White, 917 N.E.2d 1018, 1039-40 (Ill. App. Ct. 2009) (no attachment of

Sixth Amendment right to counsel in absence of formal judicial proceeding even when

arraignment delayed by eight days); cf. In re Walker, 518 P.2d at 1135-37 (upholding

admission of defendant’s statements obtained during ten-day hospital stay as voluntary

5
Brown has not argued, nor did he present any evidence, that his initial appearance
could have been conducted by means of modern technology while he was hospitalized.
See Rule 1.6, Ariz. R. Crim. P. (“appearance may be made by the use of an interactive
audiovisual system”). We therefore do not consider that issue.
11
and noting concomitant delay of initial appearance); People v. Dove, 498 N.E.2d 279,

284 (Ill. App. Ct. 1986) (Sixth Amendment right to counsel not violated where

arraignment delayed by four days as a result of transportation and court holidays).

Duress Instruction

¶19 Brown next argues the trial court erred by not giving the jury a duress

instruction on count one, first-degree felony murder, and count four, aggravated assault,

preventing him from presenting a defense in violation of his right to due process of law.

The record does not reflect that he objected on this basis before the jury instructions were

given. Instead, it appears Brown conceded a duress instruction was inappropriate on

these charges. Moreover, in discussion with the court, he referred to federal cases he had

listed without explanation in his requested jury instruction as standing for the proposition

that “in the Ninth Circuit, [duress] instructions are applicable in a first degree murder

case” and made a vague reference to “due process and equal protection rights.” But

asserting that an instruction is “applicable” in another jurisdiction does not constitute an

argument that the United States or Arizona Constitution requires it. Nor did he state that

refusing the instruction somehow violated his right to present a defense. Although it

appears Brown did make this argument in a motion for new trial, “an untimely objection

first raised in a motion for a new trial does not preserve an issue for appeal.” State v.

Davis, 226 Ariz. 97, ¶ 12, 244 P.3d 101, 105 (App. 2010). Accordingly, Brown has

forfeited this argument on appeal absent fundamental, prejudicial error. Valverde, 220

Ariz. 582, ¶ 12, 208 P.3d at 236. Because he does not argue any error was fundamental,

12
and we see none, he has waived the argument on appeal. See Moreno-Medrano, 218

Ariz. 349, ¶ 17, 185 P.3d at 140; see also A.R.S. § 13-412(C) (duress defense unavailable

for offenses involving homicide or serious physical injury); State v. Fernandez, 216 Ariz.

545, ¶ 32, 169 P.3d 641, 650 (App. 2007) (court will not ignore fundamental error if it

finds it).

¶20 Brown similarly argues that § 13-412(C), which prohibits the duress

defense for offenses involving homicide or serious physical injury, unconstitutionally

impedes his right to present a defense. But he also made this argument for the first time

in his motion for a new trial, and it therefore was untimely and did not preserve the issue

for appeal. See Davis, 226 Ariz. 97, ¶ 12, 244 P.3d at 105. He has consequently forfeited

the argument absent fundamental, prejudicial error. Valverde, 220 Ariz. 582, ¶ 12, 208

P.3d at 236. He again does not argue the alleged error was fundamental, and we see no

error at all; the argument therefore is waived on appeal. See Moreno-Medrano, 218 Ariz.

349, ¶ 17, 185 P.3d at 140; Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d at 650; see also

State v. Berndt, 138 Ariz. 41, 44, 672 P.2d 1311, 1314 (1983) (no error in refusing duress

instruction for first-degree felony murder); Clabourne v. Lewis, 64 F.3d 1373, 1383 (9th

Cir. 1995) (noting duress not available as defense for felony murder in Arizona).

Voluntary Act Instruction

¶21 Brown further maintains the trial court erred by refusing to give a

“voluntary act” jury instruction, which denied his right to have a jury determine all

elements of the crime necessary for criminal liability. As he acknowledges in his

13
opening brief, he did not make this argument below, and again, we review only for

fundamental error. Valverde, 220 Ariz. 582, ¶ 12, 208 P.3d at 236. Such exists only in

“those rare cases that involve ‘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.’” State v. Henderson, 210 Ariz.

561, ¶ 19, 115 P.3d 601, 607 (2005), quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d

980, 982 (1984). The defendant must show both that the alleged error was fundamental

and prejudicial. Id. ¶ 20.

¶22 Section 13-201, A.R.S., states that a “voluntary act” is a minimum

requirement for criminal liability. Section 13-105(42), A.R.S., defines “voluntary act” as

“a bodily movement performed consciously and as a result of effort and determination.”

Our supreme court has clarified that this definition encompasses actions that are not part

of the “autonomic nervous system” or taken while “unconscious, asleep, under hypnosis,

or during an epileptic fit.” State v. Lara, 183 Ariz. 233, 234, 902 P.2d 1337, 1338

(1995). A voluntary-act instruction is appropriate only if reasonable evidence “support[s]

a finding of a lack of a voluntary act.” State v. Moody, 208 Ariz. 424, ¶ 201, 94 P.3d

1119, 1163 (2004); State v. Almaguer, 661 Ariz. Adv. Rep. 4, ¶ 19 (Ct. App. May 31,

2013).

¶23 Brown argues that “his inability to resist the threat to his life implicated his

‘fight or flight’ reflex, rendering his physical actions involuntary” within the meaning of

§§ 13-105(42) and 13-201. He points to his testimony that he, K.C. Reaves, Ashton

14
Walker, and White were driving and one of the men told him they were going to a house

to pick up someone to play basketball. According to Brown, E.V. was outside the house

when they arrived. After they parked and got out of the car, Reaves aimed a gun at E.V.,

White told Brown to put on a mask, and White and Reaves started walking E.V. toward

the door of the house. Brown testified he put on the mask because he “didn’t really have

a choice,” and when he lagged behind, White pointed a gun at him and told him to get in

front of E.V. Although Brown testified he felt he did not have a choice, a claim the jury

obviously rejected, no evidence adduced at trial suggested that his actions were not the

result of conscious effort and determination. Accordingly, the trial court did not err in

declining the requested instruction.

Missing Witness Instruction

¶24 Brown also argues the trial court violated his constitutional rights to due

process and to present a defense by refusing to give his requested “missing witness” jury

instruction. Brown sought the instruction with respect to E.V., who apparently was

forced to enter the apartment ahead of the armed home invaders and who did not testify

or appear at trial despite the state’s attempt to serve him with a subpoena.6 We review for

6
The requested instruction was based on United States v. Bramble, 680 F.2d 590,
591-92 (9th Cir. 1982), and read:
[E.V.] is an alleged victim in Count III of the
Indictment in the charges filed against the Defendant.
The State had placed [E.V.] under subpoena for
Defendant’s trial. [E.V.] did not appear at Defendant’s trial,
pursuant to that subpoena, thus, is a missing witness. [E.V.]
is not available to the Defendant, as he is a victim and the
15
a clear abuse of discretion a court’s decision whether to give a requested instruction. See

State v. Walters, 155 Ariz. 548, 551, 748 P.2d 777, 780 (App. 1987).

¶25 To be entitled to a missing-witness instruction, a defendant must establish

that the witness was in the exclusive control of the state and would have provided

exculpatory evidence had he or she testified. Walters, 155 Ariz. at 551, 748 P.2d at 780;

see also United States v. Leal-Del Carmen, 697 F.3d 964, 974-75 (9th Cir. 2012) (to

obtain missing-witness instruction, party must show (1) witness is “peculiarly within the

power of the other party” and (2) inference that missing witness will testify unfavorably

to other party is natural and reasonable under the circumstances). Brown argues E.V.

was “peculiarly within the power of the Pima County Attorney” because he was alleged

to be a victim in the case, and victims are entitled by the Arizona Constitution “[t]o

refuse an interview, deposition, or other discovery request by the defendant, the

Defendant is precluded from contacting a victim by Arizona
law[.]
If it is peculiarly within the power of either the
prosecution or the defense to produce a witness who could
give material testimony on an issue in the case, failure to call
that witness may give rise to an inference that his testimony
would be unfavorable to that party. However, no such
conclusion should be drawn by you with regard to a witness
who is equally available to both parties, or where the
witness’s testimony would be merely cumulative.
The jury will always bear in mind that the law never
imposes on a defendant in a criminal case the burden or duty
of calling any witness or producing any evidence.
16
defendant’s attorney, or other person acting on behalf of the defendant.” Ariz. Const. art.

II, § 2.1(A)(5).

¶26 At trial, the prosecutor informed the court that the state had issued a

subpoena for E.V., but was unable to locate and serve him. Although E.V., as a victim,

could have declined to be interviewed by Brown before trial, nothing about his status as a

victim would have prevented Brown from calling him to testify in support of Brown’s

defense. See State v. Riggs, 189 Ariz. 327, 330, 942 P.2d 1159, 1162 (1997) (Victim’s

Bill of Rights does not permit victim to refuse to testify at trial). If Brown believed

E.V.’s testimony would have been favorable to his defense, he could have listed E.V. as a

witness and attempted to serve him with a subpoena. Had he done so, and had the state

prevented E.V.’s appearance at trial, then E.V. would be under the state’s control;

however, such was not the case here. Instead, the state also took steps to secure E.V.’s

attendance at trial—that these steps proved unsuccessful suggests the state had no greater

control of E.V. than Brown. And, given Brown’s ability to call E.V. and the state’s own

attempts to procure his presence, E.V.’s absence from trial does not permit a rational

inference that he would have testified in Brown’s favor.7 Accordingly, a missing-witness

instruction was not justified and the trial court did not err by refusing it.

7
Nor does Brown establish that E.V.’s testimony would have corroborated his
defense that he was forced by others to participate in the home invasion. Brown admitted
he had never met E.V. prior to the break-in. Like the other home invaders, Brown was
wearing a mask, and, although he testified he was pushed into the apartment at gunpoint,
he also testified that E.V. was positioned before him. Brown’s contention that E.V.
would have been able to support his duress defense is therefore speculative and would not
support giving the requested instruction.
17
 Constitutionality of Felony-Murder Statute

¶27 Finally, Brown asserts that Arizona’s felony-murder statute is

unconstitutional because it allows a participating felon to be convicted of murder when

he did not participate in the killing, which here was carried out by someone who was not

participating in the underlying felony. Although Brown prefaces his argument in terms

of due process and the right against excessive punishment, see U.S. Const. amends. VIII,

XIV, he does not develop these arguments. Instead, he argues that Arizona’s felony-

murder doctrine should include an intent element greater than simply the mental state of

the underlying felony. Our supreme court, however, has expressly upheld the

constitutionality of Arizona’s felony-murder statute in the face of similar challenges.

State v. McLoughlin, 139 Ariz. 481, 485-86, 679 P.2d 504, 508-09 (1984); accord State v.

Herrera, 176 Ariz. 21, 30, 859 P.2d 131, 140 (1993). We have no authority to overrule

or disregard the decisions of our supreme court. See Myers v. Reeb, 190 Ariz. 341, 342,

947 P.2d 915, 916 (App. 1997). Further, citing cases from other jurisdictions, Brown

argues the felony-murder doctrine should not apply when the killing is of an accomplice.

But this court has already rejected this argument, holding that co-felons are nevertheless

victims under the felony-murder statute. See State v. Lopez, 173 Ariz. 552, 555, 845 P.2d

478, 481 (App. 1992).

¶28 Brown also argues for the first time in his reply brief that his conviction of

felony murder under an accomplice theory was fundamental error. Relying on State v.

Phillips, 202 Ariz. 427, ¶¶ 37-39, 46 P.3d 1048, 1057 (2002), he asserts that “a

18
conviction for felony murder based upon accomplice liability deprives a defendant of his

right to a determination of guilt of every element of the offense, and, that under an

accomplice liability theory, the defendant must have intended to aid the specific crime for

which he was an accomplice.” Arguments raised for the first time in a reply brief,

however, are waived, see State v. Garcia, 220 Ariz. 49, n.2, 202 P.3d 514, 517 n.2 (App.

2008), and we therefore do not consider this argument further.

Disposition

¶29 For the foregoing reasons, Brown’s convictions and sentences are affirmed.

/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge

CONCURRING:

/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Presiding Judge

/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Judge

19