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State v. Prasertphong9/2/2003
ated the law. State v. (Pedro) Noriega, 187 Ariz. 282, 284, 928 P.2d 706, 708 (App. 1996). Additionally, the court's instructions on the prosecution's burden of proof, the presumption of innocence, the elements of the offenses, and the nature of liability as a principal or an accomplice adequately informed the jury that Prasertphong could not be convicted of the crimes merely because he "associated" with Huerstel. The court therefore did not abuse its discretion in refusing to give Prasertphong's proffered instruction.
C.
Prasertphong next argues that the felony murder and accomplice liability instructions were deficient because they referred only generally to accomplice liability for murders occurring "in the course of" and "in furtherance of" armed robberies and did not refer to robberies occurring after someone else has killed another person.
Instead, Prasertphong requested instructions that told the jury that before it could find him guilty of felony murder, it had to find that he and Huerstel jointly planned and committed an armed robbery during which a murder occurred, and that he did not merely take property after the murders. Prasertphong cites People v. Pulido, 936 P.2d 1235 (Cal. 1997), for the proposition that if a defendant does not have a joint plan to assist in the robbery ahead of time, then he is not guilty of felony murder by merely taking part in the robbery after the killings. According to Prasertphong, the instructions given at trial did not cover his theory of the case that " f the defendant did not have a joint plan to help the robbery AHEAD of time, then he is not guilty of felony murder merely by taking part in the robbery AFTER the killings." Therefore, it was constitutional error for the court to refuse to give his requested instructions. We disagree.
In Pulido, the California Supreme Court held that " f one person, acting alone, kills in the perpetration of a robbery, and another person thereafter aids and abets the robber in the asportation and securing of the property taken," the second person is not guilty of first degree murder. 936 P.2d at 1236. Although the jury there was not instructed that "late joiners" were not liable for felony murder, the court held that any resulting error was harmless because under other, properly given instructions, "the jury thus found--explicitly, unanimously, and necessarily--that defendant's involvement in the robbery, whether as direct perpetrator or as aider and abettor, commenced before or during the killing." Id. at 1244.
The instructions in this case told the jury that
A person commits first degree [felony] murder if such person, acting alone or with one or more other persons, commits robbery or armed robbery and in the course of, and in furtherance of such offense, or immediate flight from such offense, such person, or another person causes the death of any person.
(Emphasis added.) This instruction tracks the language of A.R.S. section 13-1105(A)(2) (2001). We have encouraged trial courts to closely follow statutory language when instructing on felony murder. State v. Wiley, 144 Ariz. 525, 540, 698 P.2d 1244, 1259 (1985), overruled on other grounds by State ex rel. Criminal Div. of Attorney General v. Superior Court, 157 Ariz. 541, 544, 760 P.2d 541, 544 (1988). Additionally, the court instructed the jury that a robbery requires proof that
1) The Defendant took another person's property; 2) The taking was from the other person's person or immediate presence; 3) The taking was against the other person's will; 4) The Defendant threatened or used force against any person with the intent to coerce surrender of the property or to prevent r
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