Lead Opinion
¶ 1 A jury found Antajuan Carson Jr. guilty of two counts of second-degree murder and two counts of aggravated assault. He was sentenced to concurrent terms, the longest of which was thirteen years. His appeal requires us to determine whether a defendant asserting a mistaken identity defense may also obtain a justification instruction. We conclude that although the defenses are inconsistent, it remains within the province of the jury to determine the facts, and if those facts could support justification then the jury must be instructed on it. Therefore, we affirm as to the aggravated assaults because there was no evidence supporting justification, and reverse the second-degree murder convictions, as to which the slightest justification evidence existed, and remand.
Factual and Procedural Background
¶ 2 We view the facts in the light most favorable to Carson, the justification instruction’s proponent. State v. King,
¶ 3 B.C., the surviving victim who came to the party to deejay, testified that he had known Carson only from a social media website and had seen him at a couple of parties. Shortly after B.C. arrived, Carson told B.C. that he was carrying a nine-millimeter pistol that shot like a .22-caliber. Multiple witnesses saw Carson with a black gun at some point during the night.
¶ 4 An argument occurred inside the house among four or five young men. The parties stipulated that there was “animosity or bad
¶ 5 People began leaving and the confrontation moved outside. As B.C. left through a side door and came around the side of the house, he saw Carson on the ground, surrounded by the same four men including J.M. and S.B, B.C. was not one of the four men. The men were hitting and kicking Carson. B.C. pulled S.B,, whom he knew, out of the fray and walked him across the street. B.C. told S.B. that if he wanted to fight Carson, he should fight him one-on-one rather than “jump[ing]” him in a group.
¶ 6 B.C. testified he then had seen the fighting stop, but yelling and screaming continued. Then a man in the area of the fight stood up, and B.C. heard a gun cock. Someone said “He has a gun,” and everyone started running. One witness testified the man getting jumped had “[p]ull[ed] out his gun so they could get off him” and then “[h]e started shooting.” The man shot J.M., who fell. J.M. tried to get back up and run away, but the man shot him again and he stayed down. B.C. was across the street when the man looked him in the eyes, pointed the gun at him, and shot him in the abdomen.
¶ 7 Police officers found the bodies of J.M. and S.B. about one and a half to two blocks apart, in opposite directions from the party house. An autopsy later established J.M. had been shot twice in the back, and S.B. had been shot once in the side of his chest and once in the bottom of his foot. The lack of soot or stippling around the entrance wounds on the decedents indicated either that the shots had been fired from more than three feet away, or that a heavy piece of fabric might have caught all of the soot at closer range. There was no testimony that the victims were shot with the same gun, but no eyewitnesses reported seeing more than one person shooting that night either. Officers found ten nine-millimeter shell casings and one nine-millimeter live round at the scene. Police never found the murder weapon or weapons.
¶ 8 Officers also found a bloody knife near S.B.’s body. The knife was never tested for DNA or fingerprints. Similarly, blood on a second knife tucked inside S.B.’s belt was not tested. A detective explained that the investigation had not revealed that anyone used a knife during the altercation, and so testing was not necessary.
¶ 9 Carson became a person of interest early in the investigation. Police obtained an arrest warrant for him, and he was apprehended about ten days later in Detroit, Michigan. Several eyewitnesses identified him as the shooter, but several others did not. He did not testify or present evidence in his case-in-chief.
¶ 10 Carson unsuccessfully requested a self-defense justification instruction. Despite the trial court’s refusal, in closing both sides indirectly argued self-defense as it pertained to the knives found at S.B.’s body, although Carson’s primary contention remained mistaken identity. He was convicted and sentenced as described above. We have jurisdiction over his appeal pursuant to A.R.S. §§ 13-4031 and 13-4033(A)(1).
Waiver and Standard of Review
¶ 11 Carson timely requested a self-defense instruction in writing, filed a written motion in support of that request, and argued that motion to the trial court during trial while the jury was absent. In its oral ruling denying the instruction, the court relied on State v. Gilfillan,
¶ 12 The state first contends Carson forfeited his objection except for fundamental error review because the trial court, rather than he, cited Gilfillan. It relies on State v. Henderson,
¶ 13 We review a court’s decision not to give a jury instruction for an abuse of discretion. State v. Vassell,
Slightest Evidence of Justification
¶ 14 Use of physical force against another person is justified to protect oneself “when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself against the other’s use or attempted use of unlawful physical force,” subject to certain inapposite exceptions. A.R.S. § 13-404(A). Justification to use deadly force requires, inter alia, an unlawful use or attempted use of such force by the victim. A.R.S, § 13-405(A). As it pertains to this case, deadly physical force means force whose purpose or effect “is capable of creating a substantial risk of causing death or serious physical injury.” A.R.S. § 13-105(14).
¶ 15 Our supreme court has clarified that the “reasonable person” to whom § 13-404(A) refers is “a reasonable person in the defendant’s circumstances.” King,
¶ 16 “A defendant is entitled to a self-defense instruction if the record contains the ‘slightest evidence’ that he acted in self-defense.” King,
¶ 17 Applying these authorities to the facts of this case, we conclude the trial court correctly denied a justification instruction as to the surviving victim, B.C. At oral argument before this court, counsel listed the evidence Carson argues was sufficient to raise justification.
• A.L., a guest at the party, had seen another person with a gun at the party earlier.
• B.C. had been near the area of the fight, and eyewitness C.Y. said he had seen “everybody” jumping Carson at that point. C.Y. also reported he had attempted unsuccessfully to pull J.M. and S.B. off Carson shortly before the shooting.
• A day later, a neighbor found a partially crushed .40-caliber shell casing two houses away from the area of the fight. A .40-caliber gun was recovered from the passenger-side map pocket of T.C.’s car, in which B.C., together with his girlfriend T.C. and two other people, had ridden to the hospital after he had been shot.
• The .40-caliber gun was not tested to determine whether it had been fired that night. Testing of the DNA on the .40-caliber gun excluded B.C. as a major contributor, but was inconclusive as to whether B.C. could have been a minor contributor.
• T.C. had lied to the police about the gun being in the car.
• A detective testified the nine-millimeter weapon had been discharged in a “fluid-motion shooting.”
¶ 18 Carson acknowledges that this evidence does not show B.C. made a “hostile demonstration” toward him, King,
¶ 19 Inferences that “mak[e] an argument possible” do not substitute for the slightest evidence, and a justification instruction must rest upon something more than “speculation.” Vassell,
¶ 20 First, there is no evidence B.C. was involved in the physical altercation with Carson. Of the seven testifying eyewitnesses, none suggested B.C. had punched, kicked, or otherwise attacked Carson.
¶ 21 Second, the evidence of the .40-caliber shell casing and gun does not make a prima facie justification case. Carson asks us to assume the jury would disregard the testimony of B.C, and T.C, as lies, and instead find that B.C. possessed the gun at the party. Even if we do so, substantial gaps remain that can only be bridged with speculation. None of the seven testifying eyewitnesses reported seeing or hearing a second shooter at any time that evening. Additionally, Carson’s counsel agreed at oral argument there was “no evidence” that B.C. ever displayed the gun to Carson. Nor is there any evidence that Carson was aware of B.C. possessing a .40-caliber gun before shooting at him. See Vassell,
Slightest Evidence of Deadly Physical Force by J.M. and S.B.
¶ 22 As to J.M. and S.B,, we conclude there was evidence from which the jury could find that Carson acted in self-defense against those victims. In the light most favorable to Carson, King,
¶23 It is certainly true that other evidence tended to show Carson had not acted in self-defense against J.M. and S.B. As the state points out, J.M. was shot in the back and S.B. was shot in the bottom of the foot, and the two bodies were found a distance away from the scene of the fight in opposite directions. See State v. Buggs,
Justification and Mistaken Identity
¶ 24 The state also contends the law precludes a defendant from arguing both justification and mistaken identity, which it characterizes
¶25 The trial court ruled a justification instruction was barred as a matter of law by Gilfillan,
¶ 26 More importantly, Gilfillan denied possessing a knife, much less ever having threatened the victim with it. Id. Because Gilfillan denied possessing the knife or threatening the victim with it, this court held, “it follow[ed] that he could not argue self-defense.” Id. Unlike GilfiUan, the evidence that Carson was being beaten by a group of people immediately and while he drew his gun directly relates to the murder charges.
¶27 Additional authorities cited by the parties illustrate the requirements that there must be the slightest evidence of justification and it must relate to the offense. In State v. Miller, the trial court correctly denied a self-defense instruction when the defendant testified and disclaimed all assaultive behavior and “no evidence” otherwise suggested self-defense.
¶28 The defendants in Miller, Ruggiero, and Dixon adopted an “all or nothing” defense, flatly denying they committed the acts giving rise to the charged offenses. The critical distinction in this case, as we have noted, is that Carson argued both that he did not do it, and that if the jury believed he did the shooting, he was justified. And in light of our conclusion above that the record contains the slightest evidence of justification, the record is susceptible to not two, but three possible interpretations: (1) Carson is guilty, (2) Carson shot J.M. and S.B, but was justified in doing so, or (3) Carson was mistakenly identified as the shooter. Both parties have cited one justification case with similar triple possibilities. In Plew,
¶29 The state emphasizes the court’s statement in Plew that “[a] defendant who denies shooting the victim may not thereafter claim self-defense.” Id. But this seemingly absolute statement narrows upon closer examination. For the quoted proposition, the Plew court cited only Dixon, which was itself a case devoid of evidence of justification. Plew,
¶ 30 As Carson points out, case law regarding instructions for lesser-included offenses supports our conclusion, E.g., State v. Wall,
¶ 31 We do not find persuasive the state’s analogy to a defendant who asserts an entrapment defense while denying the acts underlying the charge, which our supreme court has held impermissible for fear of encouraging perjury or confusing the jury. See State v. Soule,
Harmless Error
¶ 32 Finally, the state argues the trial court’s failure to provide a self-defense instruction was harmless, maintaining Carson “apparently had no intention to argue self-defense to the jurors” when he requested the instruction before trial because he was planning to rely on mistaken identity. Even assuming harmless error review applies where the court erroneously denied a justification instruction despite the slightest evidence of justification, but see State v. Taylor,
Conclusion
¶ 33 The trial court erred by denying Carson’s request for a justification instruction because slight evidence supported a justification theory as to J.M. and S.B. Carson’s reliance on a mistaken identity defense does not change this result and the error was not harmless. We affirm Carson’s convictions and sentences for aggravated assault against B.C. because there was no evidence of justification relating to B.C.’s conduct. But we reverse Carson’s second-degree murder convictions and remand for further proceedings consistent with this opinion.
Notes
. One witness also saw a second person at the party with a gun before the fight broke out and asked the person to leave, but she was not sure whether the person left.
. B.C. suffered serious injuries. He was the victim as to both aggravated assault charges—one charge of aggravated assault causing serious physical injury, and another charge of aggravated assault with a deadly weapon or dangerous instrument.
. The list provided at oral argument was more detailed and extensive than that cited in the briefs. Although we generally do not consider arguments made for the first time at oral argument, Mitchell v. Gamble,
. In context it is clear that when C.Y. testified "everybody” had been attacking Carson, he did not mean it literally so as to include B.C. or even himself. There were over fifty people at the party that night, many of whom C.Y. had just explained were "standing” around outside and ”[w]atch-ing," when he saw "everybody” attacking Carson. Additionally, C.Y, did not testify about B.C.'s actions.
. Our conclusions are based on the law and should not be construed as a comment on the tactical wisdom of this approach. As trial counsel candidly acknowledged, arguing inconsistent defenses "may not be to some minds the best strategy."
Concurrence in Part
concurring in part and dissenting in part:
¶34 I concur with my colleagues’ well-reasoned opinion in every respect but one: I would conclude that the trial record contains adequate evidence to support Carson’s requested self-defense instruction as to the aggravated assault charges against him.
¶ 35 As the majority correctly observes, a trial court must provide a self-defense instruction if the record contains even the “slightest evidence” that the defendant acted in self-defense. State v. King,
¶ 36 A defendant may assert self-defense if “a reasonable person in the defendant’s circumstances would have believed that physical force was ‘immediately necessary to protect himself.’ ” Id. ¶ 12, quoting A.R.S. § 13-404(A) (emphasis added). Those beliefs need only be reasonable, not correct. “An instruction on self-defense is required when a defendant acts under a reasonable belief; actual danger is not required.” State v. Grannis,
¶ 37 Within a record comprised of eyewitnesses’ testimony, often conflicting, as to a fast-moving event that occurred, in part, outdoors at night, two salient facts do not appear to be disputed: (1) Carson did not fire his weapon until after he had been kicked and punched to the ground by numerous assailants and (2) police found two bloody knives on and near the body of one of Carson’s targets. Prom this, a jury could reasonably infer that Carson had been assaulted by numerous persons, some of whom were armed with knives, and that the assault had succeeded in bringing Carson to the ground. In my view, these facts alone should allow a jury to decide whether a reasonable person
¶ 38 The majority does not disagree with the above proposition but proceeds to analyze the reasonableness of Carson’s actions as to each of the alleged victims. And, the majority finds no evidence in the record from which a juror could infer without speculation that B.C. was an actual assailant. In my view, the evidence renders this individualized approach unnecessary. One witness testified that “everybody just started fighting, just started jumping [Carson]” outside, and he “[p]ull[ed] out his gun so they could get off him” and “started shooting.” Furthermore, B.C. himself described the group attacking Carson as “a whole bunch of people.” This constitutes at least slight evidence supporting an inference that Carson could have reasonably perceived all those within his immediate vicinity to be assailants.
¶ 39 Even assuming that analyzing B.C.’s actions separately would be necessary under the “slightest evidence” standard, the record provides more than slight evidence from which a jury could infer that Carson reasonably perceived B.C, specifically to be an assailant. By B.C.’s own admission, he was inside when the fight commenced, and he then followed the altercation outside, where he injected himself into the fray. B.C. was also one of three people shot, the other two of whom were indisputably in the group assaulting Carson. And, according to B.C.’s own testimony, Carson “looked at [him] in the eyes” and audibly cocked the gun before shooting him. From this last testimony, the jury could both infer that B.C. was dose enough to Carson to perceive these details even outdoors at night and that Carson specifically rather than randomly targeted B.C.
¶40 “In weighing the sufficiency of evidence to justify the giving of an instruction, the inferences which reasonably and logically flow from the evidence are to be considered.” Reichardt v. Albert,
¶41 That the state presented substantial evidence countering Carson’s self-defense theory is irrelevant to our analysis. See Andrews v. Fry’s Food Stores of Ariz.,
¶ 42 Even assuming we were to credit B.C.’s claim that he involved himself in the fight only as a peacemaker, we must analyze the reasonableness of the shooter’s perceptions with reference to the circumstances the shooter faced.
¶43 Another reason exists for reversing the aggravated assault convictions in this case. As the majority acknowledges, the trial court erred by refusing self-defense instructions on the two murder charges. Supra ¶¶ 22-23. And, as our supreme court established in State v. Glissendotf, an instruction-related error as to one count is not necessarily confined to that count, but may affect other verdicts as well, depending on the circumstances of the case.
¶ 44 Here, the jury was instracted, on the one hand, that it had to “decide each count separately on the evidence with the law applicable to it, uninfluenced by your decision on any other count.” On the other hand, the jury also was instructed it could “consider ... all the ... evidence in the case” when deciding whether the state had proved the defendant’s guilt beyond a reasonable doubt. Consistent with these instructions, the jury therefore could have rendered verdicts on the aggravated assault charges while considering the evidence related to the two murders, for which no law on justification was provided.
¶ 45 An error is harmless only if a reviewing court can determine, beyond a reasonable doubt, that it did not contribute to or affect the verdict. Glissendorf,
¶ 46 As the case was presented below, it logically followed that Carson had committed aggravated assault against B.C. because Carson had not been justified in using deadly physical force against the threat posed by J.M. and S.B. If, however, the requested instructions had been provided as to those two victims, then a factual question would have arisen whether Carson’s use of deadly force was reasonable under the circumstances, see §§ 13-404(A), 13-406(A), and whether, in the course of defending himself, Carson had acted with the mens rea necessary for assaulting allegedly innocent third parties such as B.C. See A.R.S. §§ 13-105(10), 13-1203(A)(1), 13-1204(A)(1), (2). Had justification instructions been given for the murder counts, then Carson could have argued, for example, that he had been negligent, but not reckless, in shooting B.C. See §§ 13-105(10), 13-1203(A)(1), 13-1204(A)(1), (2). Carson also could have contended that he was not “aware of and [did not] consciously disregard[] a substantial and unjustifiable risk” of injury to B.C., because his shooting of the other two victims was justified and his erroneous shooting of B.C., in that context, did not represent a “gross deviation from the standard of conduct” a reasonable person would observe in the same situation. § 13-105(10)(c). The majority therefore errs by regarding the instruction-related errors as isolated to the murder charges.
¶ 47 For these reasons, I concur with the majority’s analysis and disposition of the murder counts but dissent from its opinion affirming the aggravated assault convictions and sentences.
. Pursuant to Rule 21.1, Ariz. R. Crim. P., civil law related to jury instructions normally applies to criminal cases. Accord King,
. Although the majority cites the correct legal standard for this case, supra IT 2, in application its opinion fails to state the facts "in the manner which provides the strongest possible support” for the proponent of the justification instructions. Bliss v. Treece,