State v. CaseyState v. Casey
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¶ 1 Fletcher Casey was charged with aggravated assault and claimed he had acted in self-defense. Over objection, the trial judge instructed the jury that the state must prove the elements of the offense beyond a reasonable doubt but that Casey must prove self-defense by a preponderance of the evidence. Casey was convicted and appealed on due process grounds. The court of appeals аffirmed the conviction and approved the jury
FACTS AND PROCEDURAL BACKGROUND
¶ 2 According to the evidence at trial, Casey and his pregnant girlfriend rented living space from Hurst. On an afternoon in January 2000, Casey returned home from looking for work and found his girlfriend in the living room with Hurst and Hurst’s friend Jimmerson, the eventual victim of the shooting. Casey believed the others had been smoking crack and was concerned for both his girlfriend’s health and her safety, as he suspected Jimmerson was attempting to get her high in order to assault or seduce her.
¶ 3 Casey and Jimmerson began to argue and then to fight. Jimmerson had placed his gun on a table, and Casey testified that when Jimmerson reached for the gun, he and Jimmerson had struggled over it. The gun discharged several times, fired at least twice by Casey. Jimmerson was hit twice, once below the rib cage and once below the buttocks. The police were dispatched in response to a call about a shooting and found Jimmerson, obviously wounded, walking out of the house. A man later identified as Casey ran through the back yard and climbed over a fence.
¶ 4 Casey was apprehended and charged with aggravated assault. By the time of Casey’s trial, Jimmerson could not be located and therefore did not testify. The trial judge allowed a police officer who responded to the scene to testify under the excited utterance exception to the hearsay rule that Jimmerson said he had been shot by Casey. Casey testified about the struggle over the gun. The judge instructed the jury as follows:
The defendant must prove the defense of self-defense by a preponderance of the evidence.
Preponderance means that the defense of self-defense is more probably true than not. In determining whether the defendant has met this burden, consider all the evidence, whether produced by the State or the defendant.
However, the burden of proof with regard to the elements of the charged offense is with the State. The burden of proof never shifts during the trial. That burden of proof is proof beyond a reasonable doubt, as defined earlier in these instructions.
Mem. dec. at ¶ 2. The instruction was based on
Except as otherwise provided by law, a defendant shall prove any affirmative defense raised by a preponderance of the .evidence, including any justification defense [including self-defense].
See
¶ 5 Casey was convicted and appealed. In affirming his conviction, the court of appeals relied on State v. Farley, 199 Ariz. 542, ¶¶ 1-2, 19 P.3d 1258, ¶¶ 1-2 (App.2001), in which it had held that the justification instruction does not violate due process. See also State v. Sierrar-Cervantes, 201 Ariz. 459, ¶¶ 11-13, 37 P.3d 432, ¶¶ 11-13 (App.2001).
ISSUE AND STANDARD OF REVIEW
¶ 6 The issue we accepted for review was framed as follows:
DoesA.R.S. § 13-205 offend due process in shifting the burden оf proof by requiring a defendant to prove self-defense? Framed another way, is lack of justification a matter that must be proved by the state beyond a reasonable doubt once a defendant has properly pled, and the evidence raises the issue of, self-defense?
¶7 Casey argues that once the evidence raises a question of self-defense, our case law treats lack of justification as, essentially, an element of the offense that due process requires the state to prove beyond a reasonable doubt. Casey relies for this proposition on
State v. Hunter,
142 Ariz. 88, 688 P.2d 980 (1984), and a number of other Arizona eases. The state argues, on the other hand, that self-defense is simply an affirmative defense and that the legislature may require a defendant to assume the burden of proving its existence. For this proposition, the state
¶8 This court analyzes a statute’s constitutionality de novo as a matter of law. See Arizona Dep’t of Pub. Safety v. Superior Court, 190 Ariz. 490, 494, 949 P.2d 983, 987 (App.1997). We have a duty to cоnstrue statutes in harmony with the constitution when it is reasonably possible to do so. See Aitken v. Industrial Comm’n, 183 Ariz. 387, 389, 904 P.2d 456, 458 (1995). Normally we interpret clauses in the Arizona Constitution in conformity with decisions of the United States Supreme Court and its interpretation of similar clauses in the United States Constitution. See Pool v. Superior Court, 139 Ariz. 98, 108, 677 P.2d 261, 271 (1984). However, “interpretation of the state constitution is, of course, our province.” Id.
CURRENT STATUTE
¶ 9 In 1997, the legislature enacted
¶ 10 “ ‘Power resides with the legislature to define that conduct which will not be tolerated in an ordered society____’” State v. Musser, 194 Ariz. 31, ¶ 9, 977 P.2d 131, ¶ 9 (1999), quoting State v. Bly, 127 Ariz. 370, 371, 621 P.2d 279, 280 (1980); see State v. Viramontes, 204 Ariz. 360, ¶ 12, 64 P.3d 188, ¶ 12 (2003) (“It is not our place to pass on the wisdom of’ legislative decisions concerning criminal procedure.); State v. Jackson, 186 Ariz. 490, 491, 924 P.2d 494, 495 (App.1996) (“The authority to define crimes and fix the penalties for such crimes rests with the legislature, not the judiciary.”). This power also extends, at least within constitutional bounds, to defenses. See, e.g., State v. Mott, 187 Ariz. 536, 540-41, 931 P.2d 1046, 1050-51 (1997) (legislature decides whether “to adopt the defense of diminished capacity” and the “Court does not have the authority” to do so), citing State v. Schantz, 98 Ariz. 200, 212-13, 403 P.2d 521, 529 (1965); Paul H. Robinson, Criminal Law Defenses § 24(a), at 86 (1984) (“Legislatures refine basic [justification] principle^] to provide in each case a suitable justification defense____”). Section 13-103(A), A.R.S., states: “All common law offenses and affirmative defenses are abolished. No conduct or omission constitutes an offense or an affirmative defense unless it is an offense or an affirmative defense under this title or under another statute or ordinance.” Because the legislature has determined that self-defense is not an element of the crime but is to be proven by the defendant, this court must respect the legislature’s decision, unless that decision is unconstitutional under either the federal or state due process clause.
CONSTITUTIONALITY ANALYSIS
¶ 11 “Statutes are presumed constitutional and the burden of proof is on the opponent of the statute to show it infringes upon a constitutional guarantee or violates a constitutional principle.”
State v. Wagstaff,
164 Ariz. 485, 494, 794 P.2d 118, 127 (1990). The federal and state due process clauses contain nearly identical language and protect the same interests.
See
¶ 12 In
Martin,
the Supreme Court held that an Ohio statute requiring a defendant to prove self-defense did not violate the federal due process mandate, as declared in
In re Winship,
397 U.S. 358, 364, 90 S.Ct. 1068,
¶ 13 Under the due process clause of Arizona’s constitution, fundamental fairness is still the touchstone.
Melendez,
172 Ariz. at 71, 834 P.2d at 157. Requiring the defendant to provе self-defense or other affirmative defenses is not fundamentally unfair.
See Martin,
480 U.S. at 236, 107 S.Ct. at 1103, 94 L.Ed.2d 267. We see no compelling reason to interpret the state due process clause differently in this context from the federal clause.
See Noble,
171 Ariz. at 173, 829 P.2d at 1219;
Pool,
139 Ariz. at 108, 677 P.2d at 271. Moreover, the conflict between the premeditation element of murder and the components of self-defense that troubled the dissenters in
Martin
does not exist with respect to the offense of aggravated assault. As relevant here, a defendant commits aggravated assault by committing assault and causing serious physical injury to another or committing assault using a deadly weapon or dangerous instrument.
¶ 14 Furthermore, our courts have found that the legislature did not violate defendants’ due process rights by placing the burden of proving other affirmative defenses, such as entrapment under A.R.S. section 13-206 and insanity under A.R.S. section 13-502, on the defendant. See State v. Moorman, 154 Ariz. 578, 586, 744 P.2d 679, 687 (1987) (defendant may be required to prove insanity defense); State v. Preston, 197 Ariz. 461, 4 P.3d 1004 (App.2000) (defendant may be required to prove entrapment defense under clear and convincing standard). A self-defense claim also justifies conduct which would otherwise be criminal, and it is appropriate to treat similar defenses in the same fashion from a constitutional standpoint.
¶ 15 Therefore, based on the legislature’s constitutional authority to define crimes and defenses, the meaning of the federal due process clause and the desired uniformity with it, and the legislature’s treatment of other defenses, which we have held constitutional, we hold
PRIOR ARIZONA CASES
¶ 16 Casey argues, however, that prior Arizona cases on self-defense compel a different result. But the cases on which Casey relies are based on statutory interpretation rather than the Arizona’s due process clause.
A. Statutory context of the cases
¶ 17 Even in territorial days, the state’s burden of showing proof beyond a reasonable doubt was set forth in statute.
See
Pen.Code 1901, § 923. The codification of that requirement has survived to date and is now found in
¶ 18 When the Arizona Constitution was adopted in 1910, the framers granted the accused many rights.
See, e.g.,
B. Anderson and Hunter analysis
¶ 19 Casey relies on Anderson v. Territory, 9 Ariz. 50, 76 P. 636 (1904), a murder case, as authority for the proposition that due process requires the state to disprove self-defense beyond a reasonable doubt. But Anderson predates the Arizona Constitution and intеrpreted now repealed provisions of Arizona’s Penal Code that allocated the burden of proof. In that case, the jury was instructed, in accordance with Penal Code 1901, § 933, that if the act was unlawful, the law presumed the criminal intent and the defendant was required to prove a justification defense. The court was troubled by the potential for conflict between the element of “malice” and the defendant’s claim that hе had acted in self-defense, just as the dissenters in Martin were. See Anderson, 9 Ariz. at 56, 76 P. at 638 (“Malice is as much an essential element in the crime of homicide as is the killing.”). But the court in Anderson did not decide the ease on constitutional grounds and specifically limited its holding to one of statutory construction, stating: “It seems ... more reasonable to hold that the statute means.... ” 9 Ariz. at 55, 76 P. at 638. See also Rosser v. State, 45 Ariz. 264, 267, 42 P.2d 613, 614 (1935) (instruction reflecting § 933 did not “improperly placet ] the burden upon defendant to prove self-defense”). Accordingly, Anderson held that the statute, rather than the due process clause of Arizona’s Constitution, required the state disprove self-defense beyond a reasonable doubt.
¶ 20 Casey also relies on State v. Hunter, 142 Ariz. 88, 688 P.2d 980 (1984), another murder case. The court there found that the trial court had committed fundamental error by instructing the jury: “If you decide the defendant’s conduct was justified, you must find the defendant not guilty.” Id. at 89-90, 688 P.2d at 981-82. Despite the fact that Winship had been decided fourteen years earlier, Hunter did not mention it or its constitutional underpinnings. As this court later commented:
Hunter does not mention any constitutional provision and is remarkable for its silence on the question of whether the fundamental error had its origins in the constitution____ However, Hunter does not involve the state’s due process obligation to prove the elements of the crime but, rather, the burden-shifting of the state’s obligation to prove the absence of justification for defendant’s actions.
State v. Slemmer, 170 Ariz. 174 n. 8, 823 P.2d 41 n. 8 (1991).
¶ 21
Hunter
relied on two authorities for the proposition that the state must prove eveiy element
oí
the
crime,
inсluding disproving self-defense, beyond a reasonable doubt. One authority was
¶ 22 The second authority was
Everett v. State,
88 Ariz. 293, 356 P.2d 394 (1960).
Everett
was an assault case interpreting a then existing assault statute mentioned previously,
¶28 Finally, the current assault statutes are completely different from those considered in
Everett
and do not make lack of self-defense an element of the crime.
See, e.g.,
¶ 24 Our decision in State v. Cannon, 157 Ariz. 107, 755 P.2d 412 (1988), further supports our conclusion. In Cannon, although we refused to overturn Hunter based on Martin as the state had urged, again we did not indicate that the requirement that self-defense be disproved by the state beyond a reasonable doubt was constitutionally based. In discussing the state’s argument that, by removing the word “unlawful” from the definition of assault and murder in revisions to the new criminal code, the legislature had intended to relieve the state of its burden to disprove self-defense, we stated:
This argument, while clever, is unconvincing. First, the legislature gave no express indication of such an intent, nor, if the burden was to be shifted to the defendant, what the burden was to be. When it dоes so intend, as in the case of the insanity defense, ... it has made its intent and the nature of the burden clear. Second, the method by which the state seeks to infer an intent depends upon a body of constitutional law that did not exist at the time the criminal code was being drafted by a special commission or first passed by the legislature. Third, when a change is to be made of a principle of law that has existed since territorial days, we require that legislative intent be clear and not inferred from a labored analysis as likely to mask legislative intent as to explicate it. Finally, the fact that the purported legislative intent was not discovered by the state for over ten years is a fair indication it never existed.
Cannon,
157 Ariz. at 108, 755 P.2d at 413 (citation omitted). If the requirement that the state disprove self-defense were constitutionally based, legislative intent would have been immaterial. And the legislature has nоw given an “express indication” of its intent and has specified the burden. Further, the legislature has acted pursuant to “a body of constitutional law” allowing the change. Finally, the legislature’s intent was “discovered” as soon as
PRESENT ARIZONA AFFIRMATIVE DEFENSE STATUTES
¶ 25 Casey further relies on the following language of another statute,
¶ 26 Subsection six, on which Casey relies, is not another in the list of circumstances which the legislature has selected for special treatment. It is a separate sentence that states: “A person may
othenvise
use physical force upon another pеrson as further provided in this chapter.”
Id.
(6) (emphasis added). The language in the introductory por
tion
¶27 Additionally, Casey’s reading of subsection six renders a portion of
¶28 Finally, the actual statutes defining self-defense do not mention that the conduct permitted is “not criminal.” Section 13-404(A) states, in pertinent part, that “a persоn is justified in threatening or using physical force against another 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.” This section simply says the action is “justified” and makes self-defense a justification defense.
See
¶ 29 Casey therefore has failed to show that either past Arizona eases or the current statutes mandate our declaring
As was stated in Patterson v. New York, 432 U.S. 197, [209,] 97 S.Ct. 2319, [2326,] 53 L.Ed.2d 281, [291] (1977), “[i]f the State ... chooses to recognize a factor that mitigates the degree of criminality or punishment, ... the State may assure itself that the fact has been established with reasonable certainty. To recognize ... a mitigating circumstance does not require the State to prove its nonexistence in each casе ... if in [the State’s] judgment [it] would be too cumbersome, too expensive, and too inaccurate.”
State v. Fletcher, 149 Ariz. 187, 192, 717 P.2d 866, 871 (1986) (alterations in Fletcher).
¶ 30 We hold that the legislature has the constitutional authority to shift the burden of proof for self-defense to the defendant and therefore uphold
Notes
. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), has now engrafted the requirement of proof beyond a reasonable doubt onto the federal due process clause.
. We are not required today to determine the legislative intent in
. We do not need to resolve today whether an impermissible conflict exists in certain first-degree murder cases between the requirement that the state prove the premeditation element beyond a reasonable doubt and the burden-shifting effect of