STATE of Arizona, Appellee, v. Robert L. RUELAS, Appellant.
No. 1 CA-CR 88-685.
Court of Appeals of Arizona, Division 1, Department D.
Feb. 27, 1990.
Review Denied in Part and Granted in Part Oct. 5, 1990.
798 P.2d 1335
I would affirm the judgment of the trial court.
ORDER
Appellee Ticor‘s motion for Reconsideration and Appellants Manleys’ response thereto were considered by the court with Judge Melvyn T. Shelley presiding and Judges Sarah D. Grant and J. Thomas Brooks, participating.
IT IS ORDERED denying appellee Ticor‘s motion for reconsideration. Judge Brooks, in accordance with his dissenting opinion, would grant the motion for reconsideration.
The court also considered appellant Manleys’ motion to clarify the opinion and appellee Ticor‘s response thereto.
IT IS ORDERED granting the appellants’ motion to clarify the opinion.
FURTHER ORDERED correcting this opinion as follows:
line 16 on page 18 reads:
“Judgment for Ticor is affirmed on the breach of escrow contract allegation that Ticor allowed proceeds of the Tower loan to be used for purposes other than construction.”
The word “affirmed” should read “reversed“. Therefore the sentence is corrected to read:
“Judgment for Ticor is reversed on the breach of escrow contract allegation that Ticor allowed proceeds of the Tower loan to be used for purposes other than construction.”
IT IS FURTHER ORDERED that the clerk of this court shall correct the opinion heretofore filed accordingly.
FURTHER ORDERED appellant Manleys’ motion for reconsideration on the issue of attorney‘s fees is Denied.
See also, 165 Ariz. 298, 798 P.2d 1307.
Dean W. Trebesch, Maricopa County Public Defender by Spencer D. Heffel, Deputy Public Defender, Phoenix, for appellant.
BROOKS, Judge.
Following a jury trial, appellant (defendant) was convicted of manslaughter, a dangerous offense, and sentenced to an aggravated term of ten years’ imprisonment. On appeal, he raises the following arguments:
- the trial court committed fundamental error by failing to give defendant‘s requested instruction on negligent homicide as a lesser included offense;
- the trial court erred by not clearly instructing the jury regarding defendant‘s limited burden of proof on the issue of self-defense;
- the trial court erred by allowing the use of the victim‘s hearsay statements;
- the trial court erred by bаrring the defense from impeaching defendant‘s ex-girlfriend with her prior juvenile adjudication; and
- the trial court committed error in the selection of the alternate juror.
FACTS
On the day in question, defendant stopped at an ex-girlfriend‘s home late at night, entering the home without permission. The girl‘s mother told defendant to leave, and although he did so, he remained outside of the house, seated on the hood of his automobile. When the victim later came out of the ex-girlfriend‘s home, defendant called him over to where he was sitting and began talking tо him. Thereafter, a fight ensued, during which defendant stabbed the victim with a knife, causing an
Defendant testified at trial and admitted kicking the victim after he had bent over and lifted up his pant leg. Defendant interpreted the victim‘s action as an attempt to obtain a knife. Defendant stated that immediately after the kicking incident, he found a knife on the ground and picked it up. He testified that as he was holding the knife, the victim continued to hit him. He then swung at the victim while holding the knife, and the victim fell to the strеet. Defendant admitted that the victim did not have a weapon when he was stabbed.
INSTRUCTION ON NEGLIGENT HOMICIDE
Relying on State v. Fisher, 141 Ariz. 227, 686 P.2d 750 (1984), defendant first argues that the trial court erred in refusing to give an instruction on negligent homicide. He contends that the jury might have concluded that he did not consciously disregard the risk that he would cause the victim‘s death when he swung at him, but that he only failed to perceive that risk, in which case he could only be guilty of negligent homicide. The state argues that there was no evidence to support a jury finding that defendant was unaware that swinging a knife or stabbing the victim creаted a substantial and unjustifiable risk that his conduct would cause the victim‘s death.
The trial court instructed the jury on both second-degree murder and manslaughter. It is the trial court‘s duty to instruct on all grades of homicide that are reasonably supported by the evidence. State v. Ramirez, 116 Ariz. 259, 270, 569 P.2d 201, 212 (1977). In State v. Fisher, the court stated that negligent homicide is generally a lesser included offense of manslaughter. 141 Ariz. at 247, 686 P.2d at 770. Negligent homicide is established where a person fails to perceive a substantial and unjustifiable risk that his or her conduct will cause the death of another person. Id. at 248, 686 P.2d at 771. As noted in Fisher, the element that distinguishes negligent homicide from manslaughter is the actor‘s “awareness” of the risk occasioned by his or her conduct. The court in Fisher suggested that a negligent homicide instruction should be given when a defendant presents a “credible argument” that his or her failure to perceive a risk was due to something other than “voluntary intoxication.” Id. at 248, n. 8, 686 P.2d at 771.
As a general rule, a defendant is only entitled to a lesser included offense instruction if there is evidence from which the jury could convict on the lesser offense and find that the state had failed to prove an element of the greater offense. State v. Conroy, 131 Ariz. 528, 532, 642 P.2d 873, 877 (App.1982). Moreover, the trial court need only give a lesser included offense instruction when the element that distinguishes the two charges is in dispute. Therefore, when the evidence is such that the defendant can only be found guilty of the greater offense, there is no requirement that an instruction on a lesser included offense be given. Id.
Here, the only defense presented at trial was self-defense. From the opening statements by defense counsel to the close of the evidence, the entire tеnor of the defense was that defendant had acted out of an instinct for self-preservation. In order to be entitled to an instruction on negligent homicide, the defendant must have presented some evidence that the death of the victim was caused by “criminal negligence.” See
“Criminal negligence” means, with respect to a result described by a statute defining an offense, that a person fails to perceive a substantial and unjustifiable risk that the result [death] will occur....
While the negligent homicide statute found in
During arguments on the necessity of instructing on negligent homicide in the case at hand, defense counsel argued that the evidence showed that defendant was not aware that the wound had been inflicted or that he was mistaken about his “right to use the knife in defending himself.” Counsel‘s argument appeared to rely on mistake as to the legal right to use deadly force as being sufficient to support a negligent homicide instruction. However, there was no evidence that defendant failed to perceive the risk that if he struck someone with enough force to drive a knife ten inches into his body, death could result. To the contrary, defendant‘s testimony unequivocally supportеd the opposite conclusion, i.e., that he was aware of the grave danger presented by the use of a knife because that danger allegedly not only prompted his attack on the victim, but also supported his continued assault on the victim to protect himself from the risk of great bodily harm. Given the complete absence of any evidence suggesting that the mental element of “awareness” of the risk was at issue, it was not error to refuse to instruct on the offense of negligent homicide.
INSTRUCTIONS ON SELF-DEFENSE
Defendant next argues that by giving an instruction which was rejected in State v. Hunter, 142 Ariz. 88, 688 P.2d 980 (1984), the trial court improperly instructed the jury on self-defense. He contends that the court did not properly inform the jury that defendant‘s burden as to self-defense was limited to raising a reasonable doubt.
In Hunter, the court recognized the rule that the state must prove all of its case against a defendant beyond a reasonable doubt. Id. at 89, 688 P.2d at 981. The court also noted that when self-defense was raised, the defendant need not prove that he properly acted in self-defense, but must merely present evidence sufficient to raise a reasonable doubt as to whether his conduct was justified. Once such evidence is presented, the burden is on the state to prove beyond a reasonable doubt that the conduct was not justified. In Hunter, the court dealt with the following instruction:
If you decide the defendant‘s conduct was justified, you must find the defendant not guilty.
Although the instruction was in accord with Recommended Arizona Jury Instructions Number 4.01, the defendant in Hunter argued that the instruction not only failed to make the state‘s burden of proof as to justification clear to the jury, but that it actually shifted the burden of proof to the defendant by requiring the jury to decide that the defendant‘s conduct was justified before acquitting him. The court held that giving the above instruction constitut
It is clear that the circumstances of the instant case are unlike those that faced the court in Hunter. In this case, the jury was given the following instruction on the proper evaluation of a claim of self-defense:
The State‘s burden to prove beyond a reasonable doubt that the Defendant committed the crime goes to the whole case, including a plea or justification based on self-defense.
If you find the Defendant, Robert Ruelas, has offered evidence that he acted in self-defense then the State has the burden of proving beyond a reasonable doubt that the Defendant did not act in self-defense.
Because the risk at which Hunter was directed is not present in this case, there was no fundamental error requiring a new trial. State v. Cannon, 157 Ariz. 107, 755 P.2d 412 (1988).
In suggesting a contrary result, the dissent in the case at hand misinterprets our supreme court‘s holding in Hunter. Contrary to the dissent‘s analysis, the court in Hunter did not forever condemn the giving of the disputed instruction as fundamental error per se. It found reversible error in that case only after considering the instructions as a whole and finding that the trial court‘s general instruction on the state‘s burden of proof was insufficient.1
ADMISSIBILITY OF THE VICTIM‘S HEARSAY STATEMENTS
During trial, statements that the victim made to police officers shortly after he arrived at the emergency room on the night that he was stabbed and on the following morning were admitted into evidence. The trial court found that the first statements were admissible as either excited utterances, statements made under belief of impending death, or otherwise trustworthy statements under the residual hearsay exceptions of Rules 803 and 804, Arizona Rules of Evidence. The court found that the second statement was admissible as a trustworthy statement under the residual hearsay exceptions. Defendant argues that the statements made at the emergency room were not made under the fear of impending death or as excited utterances and that neither statement met the test of “trustworthiness” under Rule 804(b)(5). He contends that the victim‘s relationship with defendant‘s ex-girlfriend provided a motive to fabricate. He also argues that the passage of time was sufficient to allow fabrication. (The statements occurred within an hour and a half and thirty-six hours, respectively, of the incident.)
Rule 804(b)(5), Arizona Rules of Evidence, provides in pertinent part as follows:
Other exceptions. A statement not specifically covered by any of the foregоing exceptions but having equivalent circumstantial guarantees of trustworthiness, [is admissible] if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.
In admitting both statements, the trial court found that the general purposes of the rule would best be served by their admission. The court was aware that the victim made the statements while he was either in the emergency room or in intensive care. The victim was obviously in serious condition, and he made the statements shortly after he was stabbed. The victim‘s account of the fight and stabbing clearly concerned a material fact and was
In Ramirez, several factors were identified as important in determining the admissibility of statements under the catch-all exception of Rule 804(b)(5). Those factors include the presence of an oath or cross-examination; the ability of the declarant to perceive clearly; the amount оf time after the event; whether the statement was corroborated; whether the statement was self-incriminatory in nature; whether the statement was ambiguous or explicit; and whether multiple levels of hearsay existed. Id. Evaluating those factors in the context of the evidence in this case, it is obvious that the victim had an opportunity to clearly perceive what had happened. The amount of time between the incident and the statements was of short duration. There was circumstantial evidence which tended to corroborate the victim‘s story in the defendant‘s ex-girlfriend‘s testimony and in her statements to the police shortly after the incident occurred. The girl‘s mother‘s testimony and the statements that she made to the officers shortly after the event occurred also tended to corroborate the victim‘s statements. The events of the entire day, some of which were not disputed by the defendant in his testimony, demonstrated that there was friction between the defendant and his ex-girlfriend and that the defendant made threatening statements to the victim. Furthermore, the victim‘s statements were very explicit and involved no multiple levels of hearsay.
Rule 804(b)(5) allows for judicial discretion in admitting evidence to accommodate unusual situations not foreseen by the drafters of the Rules of Evidence when they enumerated the other four exceptions contained in Rule 804. State v. Robles, 135 Ariz. 92, 95, 659 P.2d 645, 648 (1983). Such a situation was presented by this case because the statements were not necessarily admissible as dying declarations or as excited utterances. However, as noted above, the other circumstances that were rеviewed by the trial judge sufficiently supported the admissibility of the evidence so that the exercise of his discretion in admitting the evidence under Rule 804(b)(5) should not be disturbed on appeal.
LIMITATION ON THE IMPEACHMENT OF DEFENDANT‘S EX-GIRLFRIEND
Defendant argues that the trial court erred in refusing to allow defense counsel to cross-examine defendant‘s former girlfriend with a juvenile adjudication for forgery. Defendant‘s ex-girlfriend testified that she was an eyewitness to the stabbing, and defendant argues that her credibility was a key factor in the case. Thus, he contends that her impeachment with the prior juvenile adjudication was necessary for a fair determination of the issue of guilt or innocence.
After defendant stabbed the victim, he not only fled from the immediate area, but from the state as well. He was not recaptured until approximately seven years later. By the time of trial, the juvenile adjudication that defendant wished to utilize was nine years old.
Rule 609(d), Arizona Rules of Evidence, provides that evidence of a juvenile adjudication is generally not admissible to impeach a witness at trial. That rule, however, permits a court, in its disсretion, to allow impeachment by a juvenile adjudication if the conviction would be admissible to attack the credibility of an adult and the court is satisfied that its admission “is necessary for a fair determination of the issue of guilt or innocence.”
A similar issue was presented in State v. Morales, 120 Ariz. 517, 587 P.2d 236 (1978). In that case, a state‘s witness testified that he had seen the defendant with two other individuals in the vicinity of a park in which a homicide had occurred. The witness had previously been adjudicated delinquent for an offense that would have amounted to
Although Morales was not decided under the new Rules of Evidence, it is clear that Rule 609(d) has continued to recognize the discretion vested in the trial court to carry out this state‘s policy behind the general inadmissibility of juvenile adjudications for impeachment purposes. See Id. at 520, 587 P.2d at 239. Because this adjudication was more than nine years old by the time of trial and involved a witness who had thereafter remained a law-abiding citizen, we cаnnot say that the trial court clearly abused its discretion in determining that impeachment with the prior adjudication was not “necessary for a fair determination of the issue of guilt.”
SELECTION OF THE ALTERNATE JUROR
Defendant argues that the trial judge erred in selecting the alternate juror because
CONCLUSION
Pursuant to
GRANT, C.J., concurs.
CLABORNE, Judge, dissenting:
I respectfully dissent. I agree with the majority‘s result concerning the instruction on negligent homicide, the admissibility of the victim‘s hearsay statements, the trial court‘s limitation of impeachment of the defendant‘s girlfriend, and the court‘s position on the selection of an alternate juror.
I depart, however, from the majority concerning its analysis and result on the self-defense instruction using language which was specifically and clearly repudiated in State v. Hunter, 142 Ariz. 88, 688 P.2d 980 (1984). Hunter decided that this instruction was unacceptable five years ago. It is unaccеptable now.
The instruction in Hunter was:
If you decide the defendant‘s conduct was justified, you must find the defendant not guilty.
When instructing the jury on the issue of justification in this case, the court said:
Twenty; in this case the Defendant, Robert Ruelas, has raised the defense of justification, claiming that he acted in self-defense.
If you decide that the Defendant‘s conduct in stabbing Eugene Parker was justified, you must find the Defendant not guilty of the crime charged.
The “Hunter” language has been condemned not only bеcause it is an incorrect statement of the law, but also because it creates a “risk that the jury would believe that the accused had the burden to prove justification.” State v. Cannon, 157 Ariz. 107, 107, 755 P.2d 412, 412 (1988) (emphasis added).3
The instruction which the majority believes solves the issue is:
Twenty-three; the State‘s burden to prove beyond a reasonable doubt that the Defendant committed the crime goes to the whole case, including a plea or justification based on self-defense.
I do not quarrel with this instruction. However, it does not solve the vice condemned in Hunter.
The thrust of the majority‘s reasoning is simple. Since the correct instruction, they say, was given defining how the state‘s burden of proof was to be applied, the condemned “Hunter” language couldn‘t possibly influence erroneous application of the law.
The majority must concede that the giving of the instruction containing the Hunter language was error. The question is whether this error was fundamental.
As a general proposition, giving erroneous jury instructions defining burden of proof is considered fundamental error. State v. King, 158 Ariz. 419, 424, 763 P.2d 239, 244 (1988); State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984) (quoting State v. Denny, 119 Ariz. 131, 134, 579 P.2d 1101, 1104 (1978)). See also State v. Tittle, 147 Ariz. 339, 342, 710 P.2d 449, 452 (1985) (similar holding on justification instruction); State v. Renforth, 155 Ariz. 385, 388, 746 P.2d 1315, 1318 (App.1987) (insanity defense). One of the basic reasons for this general proposition was stated in King:
At best, taken as a whole, the instructions were confusing and misleading. Long ago we stated,
It is the duty of the court to give the jury the rules of law to guide their deliberations and determinations, and these rules must not be at such cross purposes as to confuse and mislead the jury. If the instructions are contradictory upon the main point in question, how is the jury to know which to follow, or which is a correct statement of the law?
King, 158 Ariz. at 425-26, 763 P.2d at 245-46 (quoting Hurley v. State, 22 Ariz. 211, 222, 196 P. 159, 163 (1921)).
Like it or not, a reading of the instructions dealing with self-defense (twenty and twenty-three) can easily present a clear risk of confusion. When a layman, unfamiliar with the vagaries of burden of proof, reads one instruction he could easily conclude that the defendant must show facts
The very purpose of a jury charge is to flag the jurors’ attention to concepts that must not be misunderstood, such as reasonable doubt and burden of proof. Lakeside v. Oregon, 435 U.S. 333, 340, 98 S.Ct. 1091, 1095, 55 L.Ed.2d 319 (1978). It is vital that the jury not misunderstand the concept of the defendant‘s burden of proof on self-defense; the jury must be instructed with great care to prevent the misunderstanding of this concept.
Does not burden of proof require, especially in a criminal jury trial, a clear definition? If so, does the giving of a repudiated instruction which runs the risk of confusing a jury on such a central issue become fundamental error? I think so. Facts upon which a central defense rests are more often than not in sharp dispute. To resolve such a dispute on a material issue, the instructions should be clear and unambiguous.
Finally, under the majority‘s reasoning, one may continue to use the repudiated language found in Hunter. All that needs to be done is to рrovide a correct statement and place it somewhere in the instructions to the jury. There were twenty-eight separate instructions in this case. Interestingly, the jury still had questions concerning law and facts!
Simply giving a correct statement of the law on a central issue does not correct the vice of also giving a repudiated erroneous one. Reading them together, as we must, results in the gravest of errors—lack of clear direction. The error was fundamental, and I would reverse.
798 P.2d 1343
Vicki R. CHAVARRIA and Gerald G. Chavarria, husband and wife, Plaintiffs-Apрellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE, COMPANY, an Illinois corporation, Defendant-Appellee.
No. 1 CA-CV 88-392.
Court of Appeals of Arizona, Division 1, Department C.
Feb. 27, 1990.
Review Denied Oct. 23, 1990.
Notes
A Defendant is justified in using physical force in self-defense if the following two conditions exist: One; a reasonable person in the Defendant‘s situation would have believed that physical force was immediately necessary to protect against its use оr another‘s attempt-ed use of physical force.
And two; and I‘m sorry. A reasonable person in the Defendant‘s situation would have believed that physical force was immediately necessary to protect against its use or attempt-ed use of physical force.
And two; the Defendant used no more physical force than would have appeared nec-essary to a reasonable person in the Defendant‘s situation.
Self-defense justifies the use of physical force only while the apparent danger contin-ues. The right to use physical force in self-defense ends when the apparent danger ends.
Actual danger is not necessary to justify the use of physical force and self-defense. It is enough if a reasonable person in the Defendant‘s situation would have believed he was in immediate physical danger.
Words alone will not justify using physical force or deadly physical force, as will be indicated in the next instruction.