                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                CAMERON LEEZELL TAYLOR, Appellant.

                             No. 1 CA-CR 16-0600
                               FILED 8-29-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-000910-001
                The Honorable Michael W. Kemp, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee

Bain & Lauritano, PLC, Glendale
By Sheri M. Lauritano
Counsel for Appellant
                            STATE v. TAYLOR
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Judge Michael J. Brown and Judge Randall M. Howe joined.


M c M U R D I E, Judge:

¶1            Cameron Leezell Taylor appeals his convictions and
sentences for drive-by shooting, aggravated assault, assisting a criminal
street gang, second-degree murder, and endangerment. For the following
reasons, we affirm.

            FACTS AND PROCEDURAL BACKGROUND 1

¶2            Shortly before noon on March 23, 2009, J.M., Antwone C.,
Arkeem C., and Taylor were driving through a south Phoenix
neighborhood in J.M.’s Honda Accord. At some point, the men, all
documented gang members, began following a Chevrolet Caprice occupied
by two rival gang members, T.C. and E.M., and two women, S.M. and A.B.
As J.M. drove, Taylor, the front-seat passenger, withdrew a handgun from
his waistband. When the Accord pulled within two or three car lengths
behind the Caprice, Taylor extended his arm outside the front-passenger
window and began shooting. At the same time, backseat passenger Arkeem
C. stood upright through the Honda’s sunroof and began firing a rifle at the
Caprice. Initially, the handgun bullets ricocheted off the road, but Taylor
quickly adjusted his aim upward and he and Arkeem C. shot at their rivals’
vehicle for approximately twenty seconds before the Caprice’s driver, A.B.,
maneuvered through traffic and sped away.

¶3             Notwithstanding A.B.’s evasive actions, a bullet hit E.M. in
the back. Another bullet pierced the rear window of an unrelated vehicle,
striking and killing G.L. A third bullet hit the tire of another unrelated
vehicle, but that driver, N.M., was not injured.

¶4          Following these events, Taylor was the target of an extensive,
multi-agency law enforcement investigation, but he eluded capture until
November 21, 2013. Once he was apprehended, the State charged Taylor


1      We view the facts in the light most favorable to sustaining the
verdicts. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).


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                            STATE v. TAYLOR
                           Decision of the Court

with one count of drive-by shooting (Count 1), four counts of aggravated
assault (Count 2 – victim E.M.; Count 3 – victim T.C.; Count 4 – victim S.M.;
and Count 5 – victim A.B); one count of assisting a criminal street gang
(Count 6); one count of first-degree, premeditated murder (Count 7 – victim
G.L.); and one count of endangerment (Count 8 – victim N.M.). The State
also alleged numerous aggravating factors.

¶5            Eight days into the first trial, the court granted Taylor’s
motion for a mistrial. After the State’s presentation of evidence at the
second trial, Taylor moved for a judgment of acquittal on Counts 3 and 4,
which the trial court granted. The jury then found Taylor not guilty of
first-degree murder, guilty of the lesser-included offense of second-degree
murder, and guilty of the remaining charges. The jury also found multiple
aggravating factors for each count. The superior court sentenced Taylor to
an aggravated term of 12 years’ imprisonment on Count 1, a concurrent,
aggravated term of 3.5 years’ imprisonment on Count 6, a concurrent,
aggravated term of 22 years’ imprisonment on Count 7, a consecutive (as to
Counts 1, 6, and 7), aggravated term of 12 years’ imprisonment on Count 2,
a consecutive (as to Count 2), aggravated term of 12 years’ imprisonment
on Count 5, and a consecutive (as to Count 5), aggravated term of 3 years’
imprisonment on Count 8. Taylor timely appealed and we have jurisdiction
pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1),
13-4031, and -4033(A)(1). 2

                               DISCUSSION

A.     Alleged Double Jeopardy Bar to Second Trial.

¶6           Taylor argues the trial court should have barred retrial
pursuant to the Double Jeopardy Clauses of the United States and Arizona
Constitutions. See U.S. Const. amend. V; Ariz. Const. art. 2, § 10.

¶7           Before his first trial, Taylor moved in limine to preclude any
evidence that he fled or concealed his whereabouts after the shooting. The
State opposed the motion, explaining the search for Taylor “became local
and national news” and included multiple profiles on the television
program America’s Most Wanted. At a hearing on the motion, defense
counsel argued any evidence regarding the manhunt to find Taylor was
inadmissible hearsay. In response, the prosecutor acknowledged the U.S.
Marshal who led the manhunt was not available to testify, but argued a


2       Absent material revision after the date of an alleged offense, we cite
to the current version of applicable statutes and rules.


                                      3
                             STATE v. TAYLOR
                            Decision of the Court

local detective who assisted the U.S. Marshal should be permitted to testify
regarding events he witnessed firsthand. After hearing from the parties, the
trial court precluded as unfairly prejudicial any evidence regarding
Taylor’s profiles on America’s Most Wanted. The court further held,
however, other non-hearsay evidence regarding Taylor’s capture was
admissible.

¶8            Notwithstanding the evidentiary ruling, during the first trial,
the prosecutor asked a local police detective whether he “personally
contact[ed] America’s Most Wanted regarding [Taylor].” The detective
responded in the affirmative, and defense counsel objected and asked to
approach the bench. During the ensuing bench conference, defense counsel
argued the prosecutor violated the court’s pretrial order. The prosecutor
denied violating the order, maintaining the court’s evidentiary ruling
precluded only evidence regarding the U.S. Marshal who led the manhunt.
At that point, defense counsel moved for a mistrial. To allow the court
reporter time to prepare a transcript of the motion in limine hearing, the trial
court delayed ruling on the motion for mistrial.

¶9            The following morning, after reviewing the transcripts of
both the motion in limine hearing and the relevant testimony from the
previous day, the trial court asked the prosecutor to explain why he asked
“that question” in contravention of the court’s order. The prosecutor stated
he erroneously believed the trial court’s evidentiary ruling excluded only
hearsay evidence. Having just reviewed the motion in limine transcript, the
prosecutor avowed he “never would have asked the question” had he
realized the trial court’s ruling, with respect to America’s Most Wanted
evidence, was predicated on unfair prejudice rather than hearsay. After the
prosecutor acknowledged that nothing could ameliorate the resulting
prejudice, the court declared a mistrial. In doing so, the court found the
prosecutor’s violation was negligent, not intentional. The matter then
proceeded to a second trial.

¶10           Taylor argues the trial court’s remedy of mistrial was
insufficient. Indeed, asserting the prosecutor intentionally “crafted”
questions “to elicit the exact information” precluded by court order, Taylor
contends the court should have “barred a retrial.”

¶11             “Whether double jeopardy bars retrial is a question of law,
which we review de novo.” State v. Moody, 208 Ariz. 424, 437, ¶ 18 (2004).
Although a defendant “ordinarily waives” his “right to be free from
multiple trials” when he “seeks a new trial because of error in the original
trial,” there is no such waiver “when the need for a second trial is brought


                                       4
                             STATE v. TAYLOR
                            Decision of the Court

about by the state’s egregiously intentional, improper conduct.” State v.
Jorgenson, 198 Ariz. 390, 391, ¶ 6 (2000). Stated differently, when the
prosecutor’s intentional misconduct is the reason the defendant seeks a new
trial, “the State has intentionally exposed the defendant to multiple trials
for the same crime,” the precise harm the Double Jeopardy Clauses were
“intended to prevent.” Id. at 392, ¶ 6. Accordingly, jeopardy attaches when
a mistrial is granted on a defendant’s motion if: (1) the motion is predicated
on the prosecutor’s improper conduct; (2) “such conduct is not merely the
result of legal error, negligence, mistake, or insignificant impropriety, but,
taken as a whole, amounts to intentional conduct which the prosecutor
knows to be improper and prejudicial”; and (3) the conduct causes
prejudice that cannot be cured by means short of a mistrial. Pool v. Superior
Court (State), 139 Ariz. 98, 108–09 (1984).

¶12             In this case, the prosecutor admitted he violated the trial
court’s evidentiary ruling and acknowledged it was impossible to “unring
[the] bell.” Therefore, the only question remaining is whether the
prosecutor’s conduct was intentional. We review a trial court’s finding
regarding a prosecutor’s intent for clear error. See State v. Lamar, 205 Ariz.
431, 440, ¶ 45 (2003) (the trial court’s finding that the prosecutor did not
engage in intentional misconduct was not “clearly erroneous”); see also State
v. Cuffle, 171 Ariz. 49, 51 (1992) (“Appellate review of a trial court’s findings
of fact is limited to a determination whether those findings are clearly
erroneous.”); State v. Korovkin, 202 Ariz. 493, 495, ¶ 8 (App. 2002) (“We defer
to the trial court’s finding that the prosecutor’s comment here, if improper,
was not intentionally so.”).

¶13           On this record, we cannot say the trial court’s finding that the
prosecutor negligently, rather than intentionally, violated the evidentiary
order was clearly erroneous. The prosecutor avowed that he
misunderstood the legal basis for the trail court’s ruling, and thereby
mistakenly believed he was foreclosed only from introducing hearsay
evidence regarding the U.S. Marshal’s investigation. Although the
evidentiary ruling was clearly broader in scope, and precluded any
reference to Taylor’s profiles on America’s Most Wanted, the trial court had
the opportunity to assess the prosecutor’s credibility firsthand, and nothing
in the record suggests that the prosecutor was less than forthcoming when
he explained he had simply misunderstood the nature of the evidentiary
ruling. See State v. Garcia, 224 Ariz. 1, 10, ¶ 22 (2010) (a reviewing court
defers to the trial court’s assessment of a prosecutor’s credibility).
Accordingly, jeopardy did not attach when the trial court granted the
mistrial, and Taylor’s double jeopardy rights were not violated by a second
trial.


                                       5
                              STATE v. TAYLOR
                             Decision of the Court

B.     Alleged Jury Panel Taint.

¶14           Taylor contends the trial court should have stricken the entire
jury panel after a prospective juror intimated that he knew either defense
counsel or Taylor through his ministry outreach program at a local jail.

¶15            While conducting voir dire on the first day of the second trial,
the court introduced Taylor and defense counsel to the venire panel and
inquired whether any prospective jurors knew either man. In response, two
jurors raised their hands. The first juror (“Juror No. 18”) explained defense
counsel had previously represented him in a criminal matter, and the men
had subsequently become friends. At that point, the court explained the
jury would be required to assess Taylor’s culpability solely based on the
evidence presented in court, and Juror No. 18 stated he could follow that
instruction. Turning to the second juror (“Juror No. 54”), the court asked,
“[W]ho do you know?” Without directly answering the question posed,
Juror No. 54 stated, “I’m a lay minister. I’ve just come off a ministry in
Sheriff Joe’s 4th Avenue Jail where I was privileged to preach the gospel.”
Without asking any follow-up questions, the court stated that the parties
would speak with Juror No. 54 privately.

¶16             Later, after excusing the other prospective jurors from the
courtroom, the court and parties met privately with Juror No. 54. When
asked whether he knew Taylor, Juror No. 54 stated, “I don’t recognize him.”
The court then excused Juror No. 54 from the courtroom and expressed
concern that the other prospective jurors may nonetheless believe Juror No.
54 recognized Taylor from his jail ministry. Defense counsel discounted any
possible prejudice, and suggested Juror No. 54 may have recognized him
rather than Taylor. But Taylor, through counsel, expressed a residual
concern that Juror No. 54’s remarks may have improperly influenced the
other jurors. Given this concern, defense counsel suggested the court excuse
Juror No. 54 as a precautionary measure. Noting the prosecutor did not
object, the trial court struck Juror No. 54 accordingly.

¶17           Although Taylor claims he urged the trial court to strike the
entire jury panel, the record reflects that he moved to strike only Juror No.
54. We therefore review his challenge to the impartiality of the entire panel
only for fundamental, prejudicial error. State v. Henderson, 210 Ariz. 561,
567, ¶ 20 (2005); see also State v. Garza, 216 Ariz. 56, 63, ¶ 20 (2007) (reviewing
a defendant’s challenges to the voir dire process, raised for the first time on
appeal, for fundamental error).




                                        6
                              STATE v. TAYLOR
                             Decision of the Court

¶18             A defendant has a constitutional right to a fair and impartial
jury, but he is not entitled to a “particular jury.” State v. Greenawalt, 128 Ariz.
150, 167 (1981). As the party challenging the impartiality of a jury panel, a
defendant bears the burden of showing that a juror’s voir dire statements
prejudiced empaneled jurors. See State v. Doerr, 193 Ariz. 56, 61, ¶ 18 (1998).
To meet this burden, the defendant must present “objective indications of
jurors’ prejudice.” State v. Tison, 129 Ariz. 526, 535 (1981). In reviewing such
a claim, an appellate court does not presume prejudice because the trial
court is in the “best position” to assess a remark’s “impact on the jurors.”
Doerr, 193 Ariz. at 62, ¶ 23.

¶19             Applying these principles here, Taylor has failed to
demonstrate that he was denied his right to a fair and impartial jury. He
does not identify anything in the record that suggests an empaneled juror
was prejudiced by Juror No. 54’s ambiguous, isolated, and fleeting remark.
Relying primarily on Mach v. Stewart, 137 F.3d 630, 632–33 (9th Cir. 1997),
Taylor speculates that Juror No. 54’s comments may have improperly
influenced one or more jurors. However, speculation is insufficient to
demonstrate prejudice for purposes of fundamental error review. See State
v. Trostle, 191 Ariz. 4, 13–14 (1997). Moreover, unlike the circumstances in
Mach, in which a juror had repeatedly made “expert-like” statements
regarding “material issues” related to “the defendant’s guilt and the
victim’s truthfulness,” Doerr, 193 Ariz. at 62, ¶ 19 (quoting Mach, 137 F.3d
at 633), here, Juror No. 54 did not state he recognized Taylor from jail, much
less profess expert knowledge or comment on Taylor’s guilt or innocence.
Furthermore, the trial court instructed the jurors to evaluate Taylor’s
culpability solely based on the evidence presented at trial and not speculate
or “guess about any fact.” We presume jurors follow the trial court’s
instructions, and Taylor has not provided any evidence to rebut this
presumption. See State v. Newell, 212 Ariz. 389, 403, ¶ 68 (2006). Therefore,
Taylor has failed to present the requisite objective evidence of juror
prejudice, and the trial court did not err, much less commit fundamental
error, by failing to sua sponte strike the entire jury panel. 3




3      In his reply brief, Taylor argues for the first time that the empaneled
jurors may have also been improperly influenced by Juror No. 43’s voir dire
remarks. Because arguments raised for the first time in a reply brief are
waived, we do not address this claim. State v. Brown, 233 Ariz. 153, 163, ¶ 28
(App. 2013).


                                        7
                             STATE v. TAYLOR
                            Decision of the Court

C.     Inclusion of Lesser-Included Offense Instruction.

¶20           Taylor contends the trial court improperly instructed the jury,
over objection, on the lesser-included offense of second-degree murder. He
asserts no evidence supported the instruction.

¶21            During the settling of final jury instructions, the prosecutor
requested lesser-included offense instructions for second-degree murder
and manslaughter explaining, “the facts in this case suggest that the
shooting . . . could have happened all of a sudden.” Defense counsel
objected to either lesser-included offense instruction, arguing the projectile
evidence showed Arkeem C., not Taylor, caused G.L.’s death. Overruling
the objection, the trial court found evidence supported both instructions,
and explained the jury could reasonably find Taylor “was the shooter” but
“did not premeditate,” or that he acted sufficiently reckless to satisfy the
mens rea component of either lesser-included offense.

¶22            We review a trial court’s decision “to give a particular
instruction” for an abuse of discretion. State v. Sprang, 227 Ariz. 10, 12, ¶ 5
(App. 2011). A trial court may instruct the jury on any lesser-included
offense that is supported by the evidence. State v. Gipson, 229 Ariz. 484, 487,
¶ 17 (2012). A lesser-included offense instruction is warranted when a
reasonable jury could find: (1) the State failed to prove an element of the
greater offense, and (2) the evidence is sufficient to support a conviction on
the lesser offense. State v. Wall, 212 Ariz. 1, 4, ¶ 18 (2006).

¶23           To convict Taylor of second-degree murder in this case, the
State was required to prove that, acting without premeditation: (1) Taylor
intentionally or knowingly caused G.L.’s death, or (2) under circumstances
manifesting extreme indifference to human life, he recklessly engaged in
conduct that created a grave risk of death and thereby caused G.L.’s death.
See A.R.S. § 13-1104. Taylor does not dispute that the jury could reasonably
find the State failed to prove premeditation, the distinguishing element
between first-degree and second-degree murder. See Sprang, 227 Ariz. at 12,
¶ 6 (“Second-degree murder is a lesser-included offense of premediated
first-degree murder, the difference between the two being premeditation.”).
Instead, he argues no reasonable jury could find he caused the victim’s
death or acted recklessly, and therefore no evidence supported an
instruction on second-degree murder.

¶24            While it is true that a detective testified G.L. was shot in the
head by a “rifle round,” and J.M. testified Arkeem C., not Taylor, fired a
rifle on the day in question, the detective explained that his testimony was



                                      8
                             STATE v. TAYLOR
                            Decision of the Court

based on the autopsy and lab reports, not a firsthand analysis. Contrary to
this detective’s testimony, the medical examiner who conducted the
autopsy of G.L. testified the projectile recovered from the body was too
“fragmented” to determine the caliber of the firing weapon. Likewise,
another detective, who processed the fragmented projectiles retrieved from
G.L.’s vehicle, testified he was unable to discern the weapon used.
Therefore, as noted by the State, the evidence did not rule out the possibility
that Taylor fired the fatal shot.

¶25            More importantly, the evidence reflects that Taylor and
Arkeem C. acted in concert to shoot at the Caprice. Immediately before the
shooting commenced, J.M. heard one of the men say, “Are you ready?”
Because their conduct was coordinated, and the trial court provided an
accomplice liability instruction, the jurors could reasonably find Taylor was
culpable for Arkeem C.’s actions during the drive-by shooting. See A.R.S.
§ 13-301 (defining “accomplice” as a person, acting “with the intent to
promote or facilitate the commission of an offense,” who solicits,
commands, aids, or counsels another person to commit an offense). In other
words, under a theory of accomplice liability, Taylor “caused” G.L.’s death
even if Arkeem C. fired the fatal shot. See State v. Baldenegro, 188 Ariz. 10, 13
(App. 1996) (jurors can find the defendant “guilty as an accomplice” even
if they “believed that [the defendant] drove the car and [a passenger] fired
the shots”).

¶26            Moreover, contrary to Taylor’s additional claims, substantial
evidence supports a finding that either he or Arkeem C. fired the fatal
bullet. Without equivocation, J.M. testified that: (1) Taylor directed him to
follow the Caprice, withdrew a handgun, leaned out the passenger
window, and repeatedly shot at the Caprice, and (2) Arkeem C. stood
upright through the sunroof and repeatedly fired a rifle at the Caprice.
Given this testimony and the uncontroverted evidence that G.L. sustained
his fatal head injury during the brief period that Arkeem C. and Taylor fired
their weapons, a reasonable jury could find that either Arkeem C. or Taylor
fired the fatal shot, and that both men were culpable.

¶27            With respect to the mens rea element, Taylor’s challenge is
likewise without merit. The location of the shooting was a “busy,”
high-traffic area. Shooting into a crowd, or in this case numerous occupied
vehicles, is quintessential recklessness. State v. Garnica, 209 Ariz. 96, 102,
¶ 24 (App. 2004) (the discharge of a weapon into a group was, “at the least,
reckless”). Although the record reflects that Taylor targeted only the
occupants of the Caprice, his reckless conduct endangered the lives of every



                                       9
                             STATE v. TAYLOR
                            Decision of the Court

person in the vicinity, and took G.L.’s life. Therefore, the trial court did not
abuse its discretion by giving the second-degree murder instruction.

                               CONCLUSION

¶28           We affirm Taylor’s convictions and sentences.




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




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