State v. Ramirez

fault to permitted to allocate speed chase was In police chasing). suspect were cases, rejected argu-

each of these preventive

ment that defendants persons fault to

sponsibilities not shift prevented have

whose conduct should Natseway, In we ex- causing

from harm.

plained: scheme, adopting comparative our fault trier of legislature intended that persons fault of who

fact consider the all harm and intended that

contributed to the responsible for his

each tortfeasor be fault and no more. percentage

or her (citations Ariz. at 909 P.2d at 443

omitted). reject explanation, we

With the same argument in

McKillips’ comparable this case.

Affirmed. SULT, JJ., concur.

PATTERSON and

945 P.2d 376 Arizona, Appellee,

STATE RAMIREZ, Appellant.

David Patrick

No. 1 CA-CR 96-0290. Arizona, Appeals

Court 1, Department A.

Division

July 1997.

Review Granted Oct. 1997. Improvidently Dismissed as

Review Feb.

Granted later, Appellant out month walked

About a and saw David’s brother townhouse walking him. David and his brother towards Appellant up to the looked alike. went him, and brother shook hands with and then, him, greeted apparent for rea- and no son,' pulled gun and him three out shot times, Appellant be- paused him. and There tween the second third shots. Appellant were witnesses. As several girl away, pointed gun he walked said, “Later, Appellant and Vicki.” said to. one witness: “He started it. He deserves (The Appel- nothing.) it.” had done victim me lant another witness: “He showed said to (The gun. him a victim gave bullet.” accounts, gun.) By Appellant had no some under the of alcohol appeared to be influence By all methamphetamine and at the time. Woods, Attorney Grant Arizona General accounts, killing. a senseless Whether it was McMurdie, Counsel, by Paul J. Chief Crimi- premeditated killing it was was also a Section, Maziarz, Joseph T. Appeals nal As- issue the trial. contested Phoenix, General, Appel- Attorney for sistant jury Appellant guilty of first The found lee. sentencing Appellant murder. When Maricopa County Public Defender Ste- (with possible prison life in release in Defender, Collins, phen Deputy R. Public all years), court stated “While the trial Phoenix, Appellant. for appears to this one murders are senseless particularly the Court to have been senseless

OPINION didn’t know the that the defendant even impulsively ... and victim. The defendant NOYES, Presiding Judge. gun pulled out a and shot this for reason jury Appellant guilty found person.” was that he had murder. His defense and there- acted without jurisdiction appeal pursu- We have guilty of offense of second fore the lesser Constitution, article ant the Arizona Because instruc- murder. An- section and Arizona Revised Statutes and the final errone- tion State’s 12-120.21(A)(1) (“A.R.S.”) notated sections implied in- ously was an 13-4033(A) (1989), (Supp. 13^031 reflection, of time rather than stant 1996). trial. reverse and for new remand II.

I. jury in claims that Appellant young A man named David knocked on premeditation “lessened struction on Appellant’s girlfriend’s townhouse. door proving premeditation.” opened greeted State’s burden Appellant the door handshake, the instruc agree. claims that We aggressive David with an Appellant and that waived struggled two tion correct trying him. The overpower objection by requesting the moment, quit. As then walked complains. no waiv find house, pressed gun into about which he Appellant into said, made numerous efforts you Appellant er. ribs “I could have took David’s pre correctly on instructed already.” have the Nothing happened more be- out meditation. tween them. given Appellant’s

To ease requires quota- discuss The instruction many tion from was as follows: sources. The defi- 13-1101(1) (1978), nition is in A.R.S. section the defendant’s “Premeditation” means provides: person kill knowledge that he will another killing long enough to before the existed “Premeditation” means that the defendant However, the time for permit reflection. acts with either the intention or the knowl- longer must be than the time reflection edge being, that he will kill another human knowledge merely to form the required knowledge pre- when such intention or may will cause death. It be that conduct by length cedes the a of time to thoughts in as successive as instantaneous permit reflection. An act not done with is mind, by may proven circum- and it be premeditation if it is the instant effect of a stantial evidence. quarrel passion. sudden or heat of reflection, period regardless of It is this of sentence, The statute’s last which we will length, distinguishes degree first its which sentence, call effect” was “instant from second murder. given although in this ease it was contained This instruction contains two ambiguities option requested as an in the State’s instruc- which turned into errors when the State mis- tion, Jury Recommended Arizona Criminal law, objection argued Appellant: over of (“RAJI”) 11.051, provides: Instruction First, by failing premedita- be to clear that “Premeditation” means that the defen- reflection, tion the instruction knowledge dant’s intention or existed be- argue premeditation allowed the State to that killing long enough permit fore the Second, just period is of time. because the However, flection. the reflection differs period commented instruction that knowledge from the intent or that conduct time can be “instantaneous as successive may will cause death. It be as instantane- thoughts provided in the mind” but no bal- mind, thoughts ous as in successive ancing language to the effect that an act proven by and it be circumstantial impulsive premeditated, cannot be both period reflection, [It evidence. is this effect, argue, it allowed the in that regardless length, of its which distin- just an instant of time. The guishes murder from inten- State’s rebuttal on this critical knowing tional or second murder.] matter of law was as follows: act is not done [An if it you you MR. ... RUIZ: submit to is the instant effect quarrel of a sudden or premed- will receive an instruction on what passion.] heat of means, pret- itation and that instruction is ty planning. clear. It doesn’t talk about “instantaneous as successive things It doesn’t talk about a lot of thoughts” language in the RAJI instruction by were mentioned the defense. It talks statute; perhaps is not it from came period permit about a sufficient of time to State, 70, 75, 174 Moore v. go say, It doesn’t even on to which stated “It is said that hey, you have to i’eflect. the deliberation and may be as Objection, MR. TERRIBILE: Your Hon- instantaneous as thoughts successive or. That’s misstatement of the law. Unfortunately, mind.” it seems to have been MR. That’s the instruction RUIZ: what forgotten that Moore also cautioned says, Judge. jury may “[W]hile the be told that the brain objection THE COURT: The is overruled. rapidly they can function must not be misled jury, will read to the The instructions thinking into that an act can at the same they’re to take the instructions as the impulsive, time be ... pre unstudied and law, lawyers’ not the characterizations meditated.” Id. at 174 P.2d at 290. The them. Appellant’s was so misled in case. The instruction, court’s mis-argued by says MR. It a sufficient RUIZ: State, essentially peri- told the permit that an act reflection and that this time impulsive could be both premeditated. longer of time must be than the amount od em- by placing undue misled an instruction take to form the of time that premedita- rapidity with which phasis on knowledge you’re going to commit n found, how- The Court tion can occur.” Id. killing. murder or commit ever, required because that reversal was remaining portions the instructions “the says it can be as instanta- The instruction premeditation.” Id. definition of clarified the in mind. thoughts two neous as words, was saved the conviction In other again arguments, Appellant once After the miss- language effect” which was the “instant argu- objected the errors in the State’s case. the instruction ing from court’s instruction: ment and the similarly Eastlack time I TERRIBILE: Yes. At this MR. it, too, salvaged by the “in- flawed but The State make a motion for mistrial. missing in this ease. stant effect” ar- advantage the instructions and took Eastlack, P.2d at 1015. 180 Ariz. at have to re- gued jury that he doesn’t reflect, court, flect, just and I needs the time to in State v. note that the 628, Amarillas, it was invit- that’s an error.' think 141 Ariz. 688 P.2d think (1984), “in by the instructions. that the ed 631 advised given should not be stant effect” sentence grant me I would ask the Court jury from which the unless there is “evidence says in an instruction that mistrial or send killing was man found that the could have reflect. enough to have time to that it’s not Ap in exists slaughter.” No such evidence actually to take advan- Thé has defendant mean, Amarillas does not pellant’s case. in engage time and tage of the however, into be can be misled for mistrial is THE The motion COURT: impulsive and lieving an act can be both denied. con should not be premeditated; Amarillas v. appeal, Appellant relies on State On which precluding a instruction strued as (1989) Guerra, 289, 1185 Ariz. 778 P.2d 161 the time fac in its discussion of is balanced Eastlack, 243, 883 and v. State tor. 1118, denied, (1994), 115 514 U.S. 999 cert. (1995). 1978, L.Ed.2d 866 131 S.Ct. proble frequently-cited source of the A were no mod in these two eases instructions thoughts” “instantaneous as successive matic els; in the one Guerra stated: Eisenstein, 320, language is State v. pro- need not be 1011, The time for reflection 332-33, over 1019-20 235 P.2d appreciable Hunter, longed there need be and .no grounds ruled on other kill (1983). the intention to space of time between 45, In Eisen 664 P.2d 195 killing. unlawfully the act of and stein, an instruc supreme court reviewed the ‘premedi “The verb stated may as the suc- tion which It be as instantaneous on, mind, in the and revolve thoughts human how- tate’ means ‘To think cessive beforehand; design mind, and re- to contrive longer than the time it must be ever ” 333, at 1019. knowledge previously.’ Id. the intent or quired to form (which also con approving this instruction cause death. In such conduct will we omit of “deliberate” tained a definition if with An act is not done current stat is not in the that word because quarrel of a sudden it is the instant effect ute), stated: the court passion. or heat of Guerra, 293-94, 778 P.2d at 161 Ariz. at instruction, given, as the It is claimed that 1189-90. contrary the harmony and is is not State, in Moore holding of this court “problems” with this Stating that it had [82], [The instruction, Ariz. 70 supreme court found that as successive of “instantaneous source space of time” appreciable “no case, latter thoughts.”] In the em- jury by “placing undue mislead a could an instruction considering effect of premedita- rapidity with which phasis on the may fol- thoughts emphasized that P.2d at 1190. which Id. at tion can occur.” rapidity and that great other with stated, jury may be low each believe a “We Court (1989). cold, significant § dif- 13-710 This judgment calculated be arrived A.R.S. suggests penalty ranges strongly ference in quickly. reference to such an With to be an instruction, legislature intended there “But are in- that the we said: if vein, significant between first emphasizes equally difference in that structed murder; something with thoughts may and second rapidity with which fol- other, responsibility criminal more relevance to low each fairness further of time. equal empha- than an instant placing at least above) (see true sis on the definitions case, many, In words, meaning-.of the terms. In other second between first and difference jury may be told that the brain while the premeditation. the element of murder was rapidly they must not be can function (1989) § § 13- Compare A.R.S. 13-1104 thinking act can at the misled into that an case, most, as in after impulsive, be ... unstudied same time knowledge that he formed the defendant premeditated. The extent pull gun, possibly kill he could case, every pass it is flection it, trigger than pull aim and faster he test, reasonably fairly and meet the must thought in could form a successive his mind. ordinary unquestioned significations Therefore, argument prevails, if the State’s words.” test premeditated murder is the whim —at (quoting from Id. at 235 P.2d at 1019-20 defendant acted faster the State —unless 290) (em- Moore, 65 Ariz. at 174 P.2d at thought. In real than he could have a second phasis supplied). agree and reiter- We with life, course, persons without many of act ate this sound advice. twice, time to thinking even when have premedi- so. But the definition of do State’s argues The State that the instruction unreflecting tation include those killers prosecutor Appel were correct in and the degree category, along in the first murder case; is, fact, premeditation lant’s in actually reflected before act- with those who period of time rather than actual reflection. ing. degree conclude that the first mur- We acknowledges “prior The State to the never been aimed at those der statute has Legislature’s in revision of the criminal code not; did it has who had time to reflect but required prove 1978 actual reflection actually always been aimed at those who has however, argues, premeditation.” The State reflected —and then murdered. required reflection not after that actual the 1978 enactment of A.R.S. section 13- If the between first and second difference 1101(1). statutory language “The is clear “ maintained, degree premed- murder is to be State, unambiguous,” argues ‘actual itation has to be understood as reflection. required, length ‘a reflection’ is period in It is fair to talk of the of time ” permit time to reflection.’ occur; might it is not reflection but period of problem with inter- fair to reflection as the Here is the the State’s define Defining premedita- might occur. To have pretation of the statute: time which it (which meaning, premeditation must length tion as a of time can be instan- the element mind) actually something thoughts taneous as successive in the describe that defendant any meaningful requires actual kill- obliterates difference be- does. Just as ing, and second murder —oth- tween first course, can, proven penalties. legislature than the has Premeditation

er evidence; offenses; knowledge pre- like or merged these two it has circumstantial intention, rarely proven by any pen- can be scribed different elements and different The more time defendant has for them. The minimum sentence for other means. alties reflect, stronger the inference that he prison murder is life in with the stat- twenty-five years; actually did reflect. This is what possible release in actual reflection can penalty. getting ute is at —that maximum is the death See A.R.S. per- length from the of time to § The minimum sentence for be inferred 13-703 way it has al- years prison; mit reflection. That is the second murder is ten say changes ways nothing here twenty-two years. been and the maximum is See 70 528, 533, however, Ortiz, Ariz. 764 reject, the no- In State v. 158

that. What we is just agreed an instant of tion that is P.2d following supplemental time. definition of with the “reflection”: statute, misconstruing than Other support argument for State offers no its of “reflection” which would premeditation changed actual reflection from thought, opinion apply here is a idea or tives), work wise. For Summary Leg., 1st and the that the section to a which does kinds of result formed The homicide statutes have been con- Chief Clerk such advised lawmakers as Commission, 13-1101(1). legislative legislature Reg. homicide, has been retained. The used, however, example, existing significant change H.B.2054, not, however, depart signifi- Sess., simplified time of the House of which established history intended the statute (Ariz.1977) (on We with the enactment of law in much of the find no indication and clarified law Majority Analyst the basic introduced, follows: suggests Representa- in the file plan other- 33rd four law, that it occurred tation pus dict der, mental tion. struction on tioned that “reflection” as used serious ous consideration. formed as a result of deliberation or delicti’ of having established that actual [State v.] “Premeditation occurred, ^[784] process than Willoughby, premeditated Poland, merely first-degree murder means a in Arizona.” there was which is (1995), the court stated being ‘part However, [ needed to form (1982)], first-degree mur longer question and the ver you are cau- ^[269] and more in the in- premedi the cor inten- seri- but Because of the cantly present law. from case case, however, premedi- agree that the 1978 definition of merely that an instant the verdict establishes “depart significantly from tation did not Appellant’s knowl- of time existed between years present nearly twenty For case law.” action. The verdict does not edge and his now, supreme regarded cases have the court ar- premeditation; the establish actual State making significant this statute as not (Nor prove it. gued that it did not have to change meaning premeditation. the Appellant that act- does the verdict establish supreme the Both before and after charged that intentionally; the indictment ed requiring premeditation define as court cases “knowing he that his conduct would acted a few of the actual reflection. We discuss death.”) cause cases. code, pre-1978 Under conclusion, In find that the efforts to following jury upheld court instruction on premeditation have varied over the define premeditation: “In order to find a deliberate premeditation has years meaning but premeditated killing you must find more and does; something person it is not: It is that part on the of the defendant than reflection Considering problems actual reflection. in the mere formation of the is involved premeditation instruction evident with the Magby, specific kill.” v. intent to State ease, and the need to and this 345, 352, 1272, 1279 instruction, we have premeditation revise the suggestions: four code, After enactment of the 1978 State Walton, provide 1. The instruction should light “In (App.1982), observed requires actual reflection. premeditation that premeditation in the current the definition code, “instantaneous as successive apparent 2. The criminal it is thus, mislead- thoughts” language potentially is so continuing utility, it is Magby has and reflection, premeditation that ing in an instruction on regardless this reflection, might comment from the omit such length which distin of time of the “time” factor for and leave the guishes degree murder from intentional instruction first by proper argument counsel. knowing degree murder.” or second If the court to comment on IV. 3. elects occur, quickly premeditation in how can dissent, Ryan’s Regarding Judge we have balancing also contain a struction should six comments: to the effect that an act cannot be comment any affirm because 1. The dissent would impulsive premeditated. Even both and agree that substan- error was harmless. We issue, manslaughter when the case has no degree support tial evidence exists to a first on the “time” factor court comment conviction, apparently the dissent murder but should be balanced. rejects the notion that substantial evidence way implement sugges- 4. these One degree mur- support also exists to a second give tions is to argue To that the evidence der conviction. statutory language as its which recites the overwhelming in this was para- paragraph, first then adds a second case, reject one must either the trial court’s graph to the effect “Pre- finding killing impulsive or ar- that the was meditation actual reflection and it impulsive gue that a murder can be both and proved by direct or circumstantial premeditated. opinion, killing In can- our evidence.” impulsive premeditated, not be both supports finding substantial evidence either III. in this case. Appellant im claimed he acted arguing degree In pulsively, premeditation. without Substan conviction, compares the dissent this case to supports tial claim. At sen evidence exist, Rankovich. Factual similarities but tencing, the trial court stated that defendant stronger the evidence of “impulsively pulled and for no reason out a there and the error of was more serious law gun person.” properly- and shot this If a example, here. For a few moments before instructed viewed the evidence victim, pistol Rankovich “drew a did, might trial court it have a reasonable pointed stating it at the bartender premeditation; might doubt about it convict police.” kill he would her she called the on second murder. On the other 159 Ariz. at 765 P.2d at 520. Rankovich hand, properly-instructed jury if a viewed fought got then with —and thrashed —the does, dissenting colleague evidence as our stepped until victim others in. Id. When might convict on first murder. over, fight someone asked the victim nose, happened what to his the victim said deciding whether the first gun, that Rankovich broke it with his reversed, ap murder conviction must be said, “Gun, gun?” someone else what Id. that, Arizona, ply principle the “In error is smirked, pulled gun, Rankovich then out not reversible substantial evidence in the times, and shot the victim three with a “dis supports record the verdict and it can be said pause” cernible after the first shot. Id. The beyond a reasonable that the doubt error did guilt court found the evidence significantly not contribute to the verdict.” “overwhelming.” Id. at 765 P.2d at 522. Rankovich, State v. case, Getting Appellant’s back to when the We conclude that the court, reason, trial finds that the premeditation, argued instruction on impulsive, that the evidence of we doubt State, by the obliterated the distinction be overwhelming. degree tween first and second murder. This Furthermore, in distinction was the contested issue in the error found harmless sup the trial. Because substantial evidence Rankovich did not involve a matter of law ports Appellant’s argument concerning only disputed in the both for second the issue case; argument testimony and the for from an officer murder State’s involved murder, “affinity say beyond we cannot about defendant’s for Russia and pre Germany general in his for the reasonable doubt that the error the East dislike 119-120, sig Id. at 765 P.2d at meditation instruction did contribute United States.” nificantly to the first murder verdict. 521-22. highlights the need for clar- argues

3. The dissent that the instruction reasoned dissent proper in case was because it ification. first-degree “states that announces “under the 6. dissent ” ‘period p. at of reflection.’ Infra majority’s reasoning, based on an instruction p. agree P.2d at 385. that the instruction 13-1101(1) now constitutes er- A.R.S. section supported the correct and incorrect both p. p. 945 P.2d at 385. This ror.” Infra ambiguous. meaning premeditation; it was Furthermore, even is an overstatement. ambiguity What turned into reversible error case, given in this the with the mis-argument, Appel- was the State’s the argued properly could have the law. State objection, timely the trial court’s fail- lant’s The reversible error arose here because the error, the and the less- ure correct State’s ambiguous, premeditation instruction was the than-overwhelming premedita- evidence of law, mis-argued Appellant the long-standing tion. That the RAJI instruc- objected, timely the trial court failed to cor- “period lan- tion contains the reflection” error, and the error was not harm- rect guage supports position our both before might speculate will not on what less. We 1978, premeditation requires actual and after happen on other facts. Reversed and remanded for new trial. argues 4. The dissent go

instruction on should FIDEL, Judge, concurring. beyond of the statute. join entirely opinion Judge in I “period language, of reflection” RAJI Noyes. separately to add this com- write argues makes the instruction a the dissent sugges- opinion The lead offers some ment. one, statute, in proper is not either. Nor drafting a clear and neutral instruc- tions is the RAJI “instantaneous as successive guidepost A premeditation. tion on to such hand, thoughts” language. On the other in an effort be found our State Bar’s “instant effect” sentence is the statute but Jury recently published Arizona In- Revised states that it should not be Amarillas (Civil), prefa- In a structions Third Edition. instruction in a case such as this. addition, Jury tory note to that Civil 623-24, 688 P.2d at 631-32. The fact is these Instructions Committee . identified fairly difficult to ex objectives, among drafting others: can be mis plain and the designed are to be 1. “RAJI instructions construed, in this To ade as it was case. neutral, brief, simply worded.” quately premeditation, on the court instruct intentionally left 2. “The Committee has using only not be locked into the statu must routinely requested argumentative in- out tory language especially when the State — explore overly structions and those which succeeds, ease, having as it did in this rules of law.” detailed non-statutory “instantaneous as successive “Requested jury instructions selective- thoughts” language in the instruction. appellate opinions ly quoting from sup- Rankovich as 5. The dissent cites they generally helpful, do seldom are nor porting premeditation is adapted language reflect the kind of best fairly just The of time. dissent jury instructions.” dicta. dicta discusses some Rankovich Such rejected] instruc- “[The Committee has problem in area of the law. We is a nearly argumentative, nar- tions which fit where, defini- have discussed cases when the law, row, particularized of and statements issue, tion of has been in the plaintiffs favor or defen- whether supreme requires it actu- court has held that dants.” acknowledge that cases al reflection. We (Civil) (1997), Purpose RAJI 3d Statement “period of time” exist where the Approach. and adding that actual has been recited without equally to principles apply should agree the These required. reflection is with jury RAJI criminal as to civil instructions. that clarification from the dissent The each of them. have such a Criminal 11.051 violates court is desirable. That we

73 objection pros- to the counsel’s put civil instructions are forward ruled defense new Id., law, alleged law.” she “clear but terse statements of misstatement of the ecutor’s the RAJI jury Introduction to Third Edition. immediately on to went instruct 11.051, neither, redrafted which is should be anything lawyers about disregard said in that mode. is. This removed what the law admonition Appellant resulting from the any prejudice to

RYAN, Judge, dissenting. misstatement prosecutor’s claimed erroneous Thus, given evi- Here, law. the substantial any error of the respectfully dissent. in the trial court’s first-degree from the murder and resulting dence admonition, beyond harmless a reasonable no reasonable struction was immediate doubt, reflection regardless whether actual other verdict. could come that an element of crime. Substantial is majority’s emphasis comments The on the verdict, supports the the al evidence and judge sentencing characteriz- of the trial “ affect leged ‘error did contribute to or impulsive persua- ing the murder as is not ” Krone, 319, v. the verdict.’ State 182 finding murder sive. made that this She 621, (1995) 321, (quoting P.2d 623 897 State had, if impulsive; she I am sure she was Bible, 549, 1152, 588, 1191 175 charge have reduced to second- denied, 1046, 114 cert. S.Ct. U.S. Moreover, degree murder. this comment (1994)); L.Ed.2d see also Ran I believe must base our not evidence. kovich, Ariz. at at 522.1 on the evidence and not a statement decision Rankovich, In defendant shot and sentencing made at that was not a formal the victim after1 the had a bar killed two finding. fight. finding that erroneous admission of Further, first-degree even murder ethnicity of the evidence defendant’s reflection, quires proof of actual and the evi- harmless, the court noted that the defendant element, I dence was not substantial on this just had smirked before the and had given jury am convinced that instruc- shot the victim three in the back with a times majority tion defective. concludes pause noticeable and sec between the first an improperly permitted that the instruction ond shots. Id. evidence in this case is function of argument that is a .equally convincing. prior Appellant had posi- than actual time rather reflection. This person just like dispute with who looked in- the last tion overlooks sentence victim, feigned pleasantries the vic struction, first-degree states mur- just killing, tim before the shot the victim . “period It is der of reflection”. twice, paused, fatally and then shot the vic first and here where the difference between again tim the back left shoulder while the second-degree murder for the was defined retreating falling victim was to the jury; Appellant instruction be- benefitted ground. assuming Even instruction required it actual Had the cause prosecutor was incorrect allowed the strictly adhered to the statute argue proof un actual reflection was first-degree murder is would have stated necessary, any such error did not affect the distinguished second-degree from verdict because there evi was substantial “period permit time reflec- sufficient to dence that such This reflection occurred. tion,” “opportunity In- or an for reflection.” supported by conclusion is the medical exam stead, reflec- required the instruction testimony that the victim had sus iner^ doing tion and in so was correct under the “gunshot tained a wound which entered majority’s premeditation. armpit posterior left back on behind Cruz, blade,” (App. ... shoulder that such wound 1996) (jury as a rapidly “more the three. instructions are reviewed was the fatal” of whole). although Additionally, judge over- the trial 1918, 1922-23, 04, subject 439 to a S.Ct. 95 L.Ed.2d

1. Incorrect instructions are 107 - 171, analysis. Roy, Jensen, (1987); error v. harmless U.S.-,-, State v. 153 Ariz. accord California 337, 338, 781, 177, (1987). 117 L.Ed.2d S.Ct. 136 787 735 P.2d Illinois, 497, (1996); Pope v. 481 U.S. 503- 266 74 Just, 534, 546, 1353, disagree majority’s willing I also with the Ariz. 675 P.2d 138 1365 (same). (App.1983) Murray, the court graft requirement

ness to a of actual reflec gunshots found that evidence of several premedi tion onto the definition of helpless positions the victims’ “show[ed] disagreement tation. This stems from A.R.S permit defendants had time to 1101(l)’s “premeditation” clarity: section sufficient 13— 32, Ariz. 184 at 906 P.2d at 565 knowledge pre is intent or flection.” added). (emphasis killing “by length cedes the a of time to permit language reflection.” Under this majority’s I also note under the rea- required, actual reflection is and the soning, an instruction based on A.R.S. sec- 13-1101(1) question decides the factual of whether ade tion now constitutes error. Al- issue, though clearly dispositive not I quate Except time for for reflection existed. suspect judges practitioners trial cases, few prov rare reflection most often can be surprised will be to learn that the statute’s only by legisla passage en of time. The explicit definition is inade- clearly require ture decided not the state quate specify it not because does that actual Instead, prove deter me, required. legislature reflection is To objective proof mined that an standard of clearly intended otherwise.2 passage of some of time be adequate. legiti Such a determination is a appreciate majority’s concern legislative prerogative. language present statutory pre mate If under the meditation, the line first and between second- plain, of a statute is fur we should look no entirely murder is not clear. But this meaning. ther to determine its State v. reasonable, complaint, while is new. Williams, 98, 100, 131, 134 Ariz. 175 854 P.2d premeditat the distinction between “[W]hile (1993). Further, if in legislature had unpremeditated ed and fails as an tended that actual reflection be an element edifice, intellectual it has served a critical murder, first-degree readily it could have juries purpose: ill-articulated it allows 121, Taylor, said so. See 169 Ariz. bring second-degree mur verdict when 123, 488, 817 P.2d 490 appears product der to them to be the position supported by This is Rankovich. Benjamin passion rather than a cool mind.” In its discussion of the elements of first- Cardozo, Law,” Medicine Do for “What Can degree murder in the context of the defen- Essays at and Literature Other Law dant’s claim that he was too intoxicated to (1931). Thus, majori 155 while I share the premeditate, court did not find concern, ty’s appropriately the answer more required. that actual reflection 159 “Defining legislature. rests with the crimi 121-22, Rather, 765 at 523-24. establishing penalties nal behavior and requirement court reiterated the that there violating criminal are functions of laws length permit of time that would reflec legislature, judiciary.” State v. Id,; Murray, tion. see also State v. 184 Ariz. Womack, 108, 609, 112, 174 Ariz. 847 P.2d 9, 32, 542, denied, 906 P.2d 565 cert. (App.1995). 613 1010, 2535, U.S. S.Ct. 135 L.Ed.2d majority premedita- also criticizes the — -, 193, 1057 and U.S. S.Ct. 136 tion in this case because “the (1996) (“To premeditation, L.Ed.2d 130 show thoughts as successive in the instantaneous prove the state must that the defendant act- language by lan- mind” was not balanced knowledge ed with either the intent or guage distinguishing premeditation from im- kill he would his victim and that such intent criticism, pulse. be a fair While this knowledge preceded killing by or Appellant’s counsel invited and waived reflection.”) length permitting (citing of time possible by requesting error such Rankovich); Neal, 93, 98, Diaz, proposed State v. his instructions. State (1984) 272, (same); 363, 365-66, 728, State v. 730-31 §§ majority's partisan analyst's Compare 13-451 and 2. The reference to a statutes. former A.R.S. 1977, 142, 60, 69-70, 452, summary, repealed by § opinion ch. eff. 945 P.2d at 380- Laws 13-1101(1),-1105, vague §§ unpersuasive. The statement is Oct. A.R.S. and, view, § my given significant eff. Oct. incorrect amended Laws ch. changes the 1978 code made to the homicide (1991). Moreover, has supreme our court approved language. See State

expressly 776, Zmich, P.2d error, (1989). Thus, there was was, it waived.

even there sure, occasion

To court on supported discussing whether the evidence first-degree said charge of murder has showing proven by evidence e.g., Wil and reflection. See

deliberation at at 1328.

loughby, 181 Ariz. hand, expressly

On the other same

approved definitions e.g., require an act of See

did not reflection. 565; Ariz. at P.2d at

Murray, 184

Rankovich, 121-22, 159 Ariz. at Amarillas,

523-24; Also, on the statute at 631. its face require

clearly actual reflection. does disagree force me with the

These factors

majority’s rationale. sum, the instruction not affect here did light to the

or contribute verdict evidence of

substantial Further, instructions,

flection. court’s entirety, require read in their did actu-

when Finally,

al require proof does Accordingly, I would af-

actual reflection.

firm.

945 P.2d 386 COMPANY, a

RREEF MANAGEMENT corporation, agent

California M, Corp. Dela Real Estate

SFERS corporation, Plaintiff-Appellee,

ware Appellant,

Cross INC., PRODUCTIONS, an

CAMEX corporation,

Arizona Defendant- Appellee.

Appellant Cross

1No. CA-CV 96-0544. Arizona, Appeals

Court 1, Department A

Division

Sept.

Case Details

Case Name: State v. Ramirez

Court Name: Court of Appeals of Arizona

Date Published: Feb 6, 1998

Citation: 945 P.2d 376

Docket Number: 1 CA-CR 96-0290

Court Abbreviation: Ariz. Ct. App.