STATE of Arizona, Appellee, v. John Thomas ROMANOSKY, Appellant.
No. CR-90-0105-AP.
Supreme Court of Arizona, En Banc.
Oct. 5, 1993.
859 P.2d 741
On remand, the trial court made findings pursuant to our order and incorporated them in its September 14, 1993 minute entry. Those findings make it apparent that the trial court‘s January 11, 1993 order denying the motion for reconsideration and denying the mоtion to set aside its previous minute entry was entered inadvertently or improvidently or as the result of administrative error. Therefore,
IT IS ORDERED that the trial court‘s December 7, 1992 order is vacated insofar as it imposеs sanctions of any type against Sunbeam Corporation and Sears, Roebuck & Company.
IT IS FURTHER ORDERED that the matter is remanded to the trial court for all further proceedings.
Grant Woods, Atty. Gen., Phoenix, by Paul J. McMurdie, Chief Counsel, Criminal Aрpeals Section, for appellee.
Neal W. Bassett, Phoenix, for appellant.
OPINION
MOELLER, Vice Chief Justice.
STATEMENT OF THE CASE
At trial, the state‘s theory was that defendant and two accomplices robbed the victim and his wife in their Phoenix motel room. During the course of the robbery, the viсtim was shot and killed. At his first trial, defendant was convicted of first degree murder, armed robbery, and aggravat
On appeal, defendant raises numerous issues, many of which relate to the jury selection рhase or the penalty phase. In this opinion, we do not discuss those issues unlikely to arise at a new trial before a different judge, or issues that are moot until and unless defendant is again convicted and sentenced to death. See Romanosky, 162 Ariz. at 226-27, 782 P.2d at 702-03. Because the trial judge did not instruct the jury on the doctrine of reasonable doubt at the end of the case, we reverse. We discuss only the facts relevant to that issue.
ISSUE
Whether a new trial is required because the trial court did not instruct the jury on the doctrine of reasonable doubt at the end of the case.
DISCUSSION
I. Requirement of Reasonable Doubt Instruction at the End of the Case
On the first day оf trial, the trial judge preliminarily instructed the jury that in order to convict defendant, the state had to prove defendant guilty of every element of the crimes charged beyond a reasonable doubt. At that samе time, the then three-count indictment was read to the jury, but the crimes charged were not defined as they were at the end of the trial. Four days and 26 witnesses later, the lawyers made closing arguments. Both mentioned the state‘s burden of proving guilt beyond a reasonable doubt. The trial judge then gave additional instructions to the jury, but did not repeat those previously given. There was no reinstruction on the reasonable doubt standаrd. The judge did provide the jury with a written copy of the instructions that had been given the first day of trial, as well as a copy of those given at the end.
Defendant argues that the trial judge‘s practice of refusing to instruсt the jury on the reasonable doubt standard at the close of the evidence is reversible error. It is well-settled that failure or refusal to instruct the jury at the close of the evidence on the state‘s burden of proof after a request by the defendant is error. The appellate courts of this state have held in five cases: State v. Johnson, 173 Ariz. 274, 276, 842 P.2d 1287, 1289 (1992); State v. Jackson (Robert), 144 Ariz. 53, 54, 695 P.2d 742, 743 (1985); State v. Kinkade, 140 Ariz. 91, 94-95, 680 P.2d 801, 804-05 (1984); State v. Jackson (Richard), 139 Ariz. 213, 217, 677 P.2d 1321, 1325 (App.1983); State v. Marquez, 135 Ariz. 316, 321, 660 P.2d 1243, 1248 (App.1983). Each of these five published opinions involved the same trial judge that presided over defendant‘s trial here. Four of the five opinions were issued before the trial in this case.
The state necessarily acknowledges the clear rule requiring instruction on reasonable doubt at the clоse of the case. The state argues, however, that the jury in this case was in fact instructed on the reasonable doubt standard at the close of the evidence, and that only a definition of reasonable doubt, which is not required, is lacking. See State v. Bracy, 145 Ariz. 520, 535, 703 P.2d 464, 479 (1985), cert. denied, 474 U.S. 1110, 106 S.Ct. 898, 88 L.Ed.2d 932 (1986). In support of this claim, the state relies on the following instruction given at the end of the case: “You may not find the defendant guilty of first degree murder unless you find beyond a reasonable doubt that at the time of the
II. Preservation of the Issue
The state also contends that defendant failed to preserve the reasonable doubt issue for appeal and, therеfore, our review is limited to one for fundamental error. See State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627 (1991);
During defense counsel‘s opening statement, he began discussing the standard of reasonable doubt. The trial judge interrupted, directed counsel to go on to “what the evidence will show,” and stated that “at the appropriate time I will give the instructions of lаw.” On the next-to-last day of trial, the trial judge informed the attorneys that she would not reread the instructions given at the beginning of the trial. The instructions separately requested by defendant included a reasonable dоubt instruction. On the last trial day, the trial court asked if there were any objections to the instructions already given or those about to be read to the jury. Defense counsel stated: “Your Honor, your own proposed instructions are acceptable to the defense. I would again reurge my suggested or requested instructions. . . .”
In considering the adequacy of the record, we note also that a request to give a reasonable doubt instruction (which is commonly given without request in criminal cases) is somewhat different than a request to give an evidence-based instruction, where the party may need to demonstrate to the trial court an evidentiary basis for the instruction. The reasonable doubt instruction is applicable in all criminal cases regardless of the evidence. The basis for requesting it, in those rare cases wherе the trial court itself does not intend to give it, is self-evident.
The record made by defense counsel here was adequate to put the trial judge on notice of her error in not reinstructing the jury on reasonable doubt. Given the unique history of this subject, any further request was both unnecessary and futile. The trial court‘s failure to give the requested instruction here was error, and the error was not waived.
III. Harmless Error Analysis
Our foregoing conclusions do nоt end our inquiry. We must next determine whether the error was harmless.1 To constitute harmless error, we must be able to conclude beyond a reasonable doubt that the failure to reinstruct at the end of the trial did not influence the jury‘s verdict. See Jackson, 144 Ariz. at 55, 695 P.2d at
DISPOSITION
A new trial is required. The convictions are reversed, and this case is remanded to the trial court for a new trial. In accordance with this court‘s order of January 26, 1993, the case will be reassigned to a different trial judge upon remand.
FELDMAN, C.J., and CORCORAN and ZLAKET, JJ., concur.
MARTONE, Justice, dissenting.
I dissent for the reasons set out in detail in my dissenting opinion in State v. Johnson, 173 Ariz. 274, 277, 842 P.2d 1287, 1290 (1992). I would not reverse this case on the reasonable doubt instruction issue.1 Nor do I believe the defendant рreserved the issue. The general request to give this instruction was not enough.