Alternative Forms of the Same Offense In Indictment
X appeals his convictions and sentences for murder, aggravated assault, misconduct involving weapons, escape, and solicitation to commit murder. We affirm in part and reverse in part.
Consistency of Two Murder Convictions
X first contends that under the United States Supreme Court's decision in Schad v. Arizona, 501 U.S. 624, 115 L. Ed. 2d 555, 111 S. Ct. 2491 (1991), premeditated murder and felony murder are one offense.
He argues that the felony murder count and the premeditated murder count of the indictment were alternative forms of the same offense, and that the jurors were confused because the trial court refused to instruct them properly.
He contends that the instructions should have been consistent with the indictment, which charged the counts in the alternative; that is, the jury could find X guilty of either felony murder or premeditated murder, or could find him not guilty of either, but could not find him guilty of both.
He contends that the jury's guilty verdict for second degree murder impliedly acquitted him of premeditated murder, and must also indicate that it found him not guilty of felony murder. Thus, he argues, he was improperly sentenced for felony murder instead of the second degree murder verdict, and the case must be remanded for re-sentencing.
The State argues that X has either invited error or waived the argument absent fundamental error because his attorney failed to object when the verdict was read and because, at the sentencing hearing, he agreed to the trial court's "merger" theory and sentencing on felony murder.
It appears that defense counsel reluctantly did so because he had no better resolution than the trial court. We therefore decline to find that defense counsel "invited" the error. Moreover, an illegal sentence can be reversed on appeal despite the lack of an objection.
See State v. Whitney, 151 Ariz. 113, 115, 726 P.2d 210, 212 (App. 1985). We find that X has not waived his objection that it was error to sentence him for the first degree murder conviction rather than the second degree murder conviction. We find no error.
The Supreme Court in Schad did not hold, as X argues, that the jury's finding of no premeditation would "negate the mental state required for felony murder, as well."
Rather, the Supreme Court explained that, "under Arizona law neither premeditation nor the commission of a felony is formally an independent element of first degree murder; they are treated as mere means of satisfying a mens rea element of high culpability." Id. at 639.
Moreover, the Arizona Supreme Court previously has held that a verdict of "not guilty" on a charge of first degree premeditated murder is not inconsistent with a guilty verdict on a charge of felony murder. State v. Smith, 160 Ariz. 507, 513, 774 P.2d 811, 817 (1989).
Even if we accept X's argument that the jury's verdict of guilty of second degree murder means that it found him not guilty of first degree premeditated murder, it neither nullifies the felony murder guilty verdict nor implies that the jury actually found him innocent of that offense.
X next submits that, because the indictment set forth the felony murder and premeditated murder charges "in the alternative," the jury was required to return a guilty verdict on one or the other, or neither, but not both. He contends that allowing the jury to return guilty verdicts on both offenses unfairly allowed the State two opportunities for a first degree murder conviction.
Because the jury found him guilty of second degree murder, he argues, the State is "stuck with" that verdict rather than the felony murder guilty verdict.
Although the indictment in this case may have been imprudently worded, by placing the two theories of first degree murder in alternative counts, rather than stating them as alternative theories under the same count, we do not agree that it requires the result X urges. Cf. State v. Kelly, 149 Ariz. 115, 116, 716 P.2d 1052, 1053 (App. 1986) (explaining why it is proper to charge both premeditated and felony murder alternatively in one count).
Essentially, the State charged X with one count of premeditated first degree murder and one count of felony murder committed in the course of escape.
If properly charged and instructed, a jury would not reach the issue of whether X was guilty of second degree murder unless it acquitted him on both theories of first degree murder.
Here, the jury found X guilty of felony murder. "Extra" verdicts on the lesser-included offenses to the premeditated murder charge do not affect the validity of the unanimous guilty verdict on the felony murder charge. See United States v. Gaddis, 424 U.S. 544, 551, 47 L. Ed. 2d 222, 96 S. Ct. 1023 (1976) (White, J., concurring) (finding that when an improperly instructed jury convicted a defendant of both robbery and possession of proceeds of robbery, "it may be concluded with satisfactory certainty that the jury, having convicted for both offenses, would have convicted of robberyif it had been properly instructed").
X is not entitled to re-sentencing on this basis.