Free Memorandum - District Court of Arizona - Arizona

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TERRY GODDARD ATTORNEY GENERAL (FIRM STATE BAR NO. 14000) ROBERT A. WALSH ASSISTANT ATTORNEY GENERAL CRIMINAL APPEALS SECTION 1275 W. WASHINGTON PHOENIX, ARIZONA 85007B2997 EMAIL: [email protected] TELEPHONE: (602) 542B4686 (STATE BAR NUMBER 016071) ATTORNEYS FOR RESPONDENTS

UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
ROBERT L. JARAMILLO,
Petitioner,

CIV 00­936­PHX­SMM RESPONDENTS' HEARING MEMORANDUM ON ARIZONA LAW ON SELFDEFENSE (resubmitted)

-vsDORA B. SCHRIRO, et al.,
Respondents.

Respondents, by and through undersigned counsel, hereby resubmit the

16 following Hearing Memorandum on the affirmative defense of self-defense in 17 Arizona at the time of the charged offense, for this Court's consideration during the 18 pending evidentiary hearing, presently scheduled for August 16-19, 2005. This pre19 hearing memorandum is being resubmitted because of a clerical error in the 20 docketing of the original memorandum, filed on August 2, 2005 (Docket No. 157). 21 DATED this 11th day of August, 2005. 22 23 24 25 26 27 28
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RESPECTFULLY SUBMITTED, TERRY GODDARD Attorney General
S/________________

ROBERT A. WALSH
ASSISTANT ATTORNEY GENERAL ATTORNEYS FOR RESPONDENTS

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Points of Law and Authorities 1. A.R.S. § 13-404 is Arizona's self-defense statute. As of January 3, 1984,

3 the date of the charged offense's commission, this statute reads as follows: 4 A. Except as provided in subsection B of this section, a person is justified in threatening or using physical force against another when 5 and to the extent a reasonable person would believe that physical 6 force is immediately necessary to protect himself against the other's use or attempted use of unlawful physical force. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 3. If the person provoked the other's use or attempted use of unlawful physical force, unless: (a) The person withdraws from the encounter or clearly communicates to the other his intent to do so reasonably believing he cannot safely withdraw from the encounter; and (b) The other nevertheless continues or attempts to use unlawful physical force against the person. The statute governing the threatened use or use of deadly physical force is 2. To resist an arrest that the person knows or should know is being made by a peace officer or by a person acting in a peace officer's presence and at his direction, whether the arrest is lawful or unlawful, unless the physical force used by the peace officer exceeds that allowed by law; or B. The threat or use of physical force against another is not justified: 1. In response to verbal provocation alone; or

21 A.R.S. § 13-405, which reads as follows: 22 A person is justified in threatening or using deadly physical force against another: 23 24 25 26 27 28
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1. If such person would be justified in threatening or using physical force against the other under § 13-404, and 2. When and to the degree a reasonable person would believe that deadly physical force is immediately necessary to

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protect himself against the other's use or attempted use of unlawful deadly physical force. 2. "According to A.R.S. section 13-404, a person is justified in threatening

4 or using physical force against another person when and to the extent a reasonable 5 person would believe that it was immediately necessary to protect himself against 6 the other's use or attempted use of physical force." State v. Gilfillan, 196 Ariz. 7 396, 406, ¶ 39, 998 P.2d 1069, 1079 (App. 2000); see also State v. Buggs, 167 8 Ariz. 333, 335, 806 P.2d 1381, 1383 (App. 1990) ("Under A.R.S. section 139 404(A), self-defense constitutes justification for conduct if: (1) a reasonable person 10 would believe (2) that physical force is immediately necessary (3) to protect 11 oneself against another's use or attempted use of unlawful physical force."). 12 3. "A defendant is entitled to an instruction on self-defense if there is the 13 slightest evidence of justification for his act." Gilfillan, 196 Ariz. at 406, ¶ 39, 998 14 P.2d at 1079. "The `slightest evidence' is that evidence which tends to prove a 15 hostile demonstration which might be reasonably regarded as placing the accused 16 in imminent danger of losing his life or sustaining great bodily harm." Buggs, 167 17 Ariz. at 334, 806 P.2d at 1383. "In most cases, the defendant's own testimony 18 raises the inference of self-defense." State v. Walters, 155 Ariz. 548, 553, 748 P.2d 19 777, 782 (App. 1987)) (citing Everett v. State, 88 Ariz. 293, 298, 356 P.2d 394, 20 398 (1960)). 21 4. At the time of Abeyta's murder, Arizona courts held, "Once a defendant 22 presents evidence sufficient to raise reasonable doubt as to whether his conduct 23 was justified, lack of justification becomes an element of the offense which the 24 state must establish beyond a reasonable doubt . . . and the jury must be so 25 instructed." Walters, 155 Ariz. at 553, 748 P.2d at 782 (citing State v. Hunter, 142 26 Ariz. 88, 90, 688 P.2d 980, 982 (1984); State v. Denny, 119 Ariz. 131, 579 P.2d 27 1101 (1978); and State v. Garcia, 114 Ariz. 317, 560 P.2d 1224 (1977)). 28
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1 Subsequent to Abeyta's murder, however, the Arizona Legislature enacted A.R.S. 2 § 13-205, which requires the defendant to carry the burden of proving justification 3 defenses by a preponderance of the evidence. See State v. Casey, 205 Ariz. 389, 71 4 P.3d 351 (2003); State v. Farley, 199 Ariz. 542, 19 P.3d 1258 (App. 2001). 5 5. "A self-defense instruction must be given if the defendant demonstrates 6 that `(1) he reasonably believed he was in immediate physical danger; (2) he acted 7 solely because of his belief; and (3) he used no more force than appeared 8 reasonably necessary under the circumstances.'" Gilfillan, 196 Ariz. at 406, ¶ 39, 9 998 P.2d at 1079 (quoting Walters, 155 Ariz. at 553, 748 P.2d at 782). 10 6. "Unless these elements appear in the evidence in an appropriate case, the 11 plea of self-defense is not justified, and it is not error for the court to refuse to 12 instruct upon that issue." Walters, 155 Ariz. at 554, 748 P.2d at 783 (App.1987); 13 see also State v. Dumaine, 162 Ariz. 392, 405, 783 P.2d 1184, 1197 (1989) (no 14 abuse of discretion in refusing self-defense instruction where pathologist testified 15 that victim's gunshot wounds had been inflicted from behind or above); State v. 16 Andersen, 177 Ariz. 381, 386, 868 P.2d 964, 969 (App. 1993) ("Given that there 17 was no evidence that [the victim] was attempting to use deadly force against the 18 defendant, a self-defense instruction was not available to him."). 19 7. A defendant's right to use force in self-defense ends when the threat of 20 physical harm is no longer imminent or has ended. See State v. Reid, 155 Ariz. 21 399, 403, 747 P.2d 560, 564 (1987) (despite evidence that victim had committed 22 prior physical and sexual abuse towards defendant, she was still not entitled to a 23 self-defense instruction because the victim was asleep when fatally shot); State v. 24 Powers, 117 Ariz. 220, 227, 571 P.2d 1016, 1023 (1977) (after a fight has broken 25 off, one cannot pursue and kill merely because he once feared for his life); State v. 26 Barger, 167 Ariz. 563, 567, 810 P.2d 191, 195 (App. 1990) (upholding a jury 27 instruction that stated, "Self-defense justifies the use or threat of physical force 28
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1 only while the apparent danger continues. The right to use physical force in self2 defense ends when the apparent danger ends," and finding such instruction 3 appropriately in light of evidence that defendant continued to brandish weapon at 4 unarmed victim and threatened to "blow" his head off after one alleged victim, 5 who had exhibited a machete, retreated into house); Buggs, 167 Ariz. at 336, 806 6 P.2d at 1384 ("Arizona is one of several states whose statutes relating to self7 defense are couched in terms of the immediate need to use force."). 8 8. The following passage from the Arizona Court of Appeals' opinion in 9 Buggs is informative on the scope of the affirmative defense of self-defense in 10 Arizona: 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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The aspect of this case which gives us concern is that, at the time the defendant shot in the direction of the Crips, they were not advancing upon or physically menacing him in any way. Characterized most strongly for the defendant, all that the evidence showed was that the defendant thought the men he shot at were highly dangerous individuals who meant to do him harm, and who he decided had to be eradicated right away to prevent them from gaining an advantage over him and injuring him at some later time. The question is, does this kind of threat justify the defendant's action? We believe it does not. The defendant's action was not immediately necessary to prevent the harm he feared. . . .

We have not found any case that would allow a claim of selfdefense under the circumstances presented here. While we agree that a victim's past acts and reputation for violence will often be relevant on the question of the reasonableness of a defendant's use of force in self-defense, it would be inappropriate in a case such as this to dispense with or dilute the requirement that one may resort to deadly force only if it is necessary to prevent immediate harm. The defendant's "self-defense" in this case was nothing other than a "preemptive strike" against the men he feared. While there may be some circumstances imaginable that would allow for a defense based on that concept, this case does not present them. This case, for

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instance, does not present the same dire need as does the example used by LaFave and Scott of the kidnapper who plans to kill his victim in a week. Here, when the defendant returned to the area of the confrontation and fired his pistol at the men who had kicked him, he was not under their domination and control, and they gave no signal that they intended to renew their attack. Our conclusion is in line with settled authority to the effect that after a fight has broken off, one cannot pursue and kill merely because he once feared for his life.

7 Buggs, 167 Ariz. at 336-37, 806 P.2d at 1384-85 (citing Powers, 117 Ariz. at 227, 8 571 P.2d at 1023). 9 9. "An essential element of self-defense is the accused's freedom from fault 10 in provoking the difficulty that gives rise to the use of the force." State v. Zamora, 11 140 Ariz. 338, 341, 681 P.2d 921, 924 (App. 1984); see also State v. Lujan, 136 12 Ariz. 102, 104, 664 P.2d 646, 648 (1983) ("The privilege of self-defense is not 13 available to one who is at fault in provoking an encounter or difficulty that results 14 in a homicide."); State v. Celaya, 135 Ariz. 248, 253, 660 P.2d 849, 854 (1983) 15 ("The general rule in homicide cases is that the plea of self-defense is not available 16 to one who is at fault in provoking the difficulty that resulted in the homicide."). 17 10. `"Arizona law does not require instructions on self-defense if the 18 accused is at fault in provoking the confrontation.'" A.R.S. § 13-404(B)(3). 19 Because the jury found appellant guilty of burglary, it would appear that appellant 20 was at fault in provoking the altercation." State v. Noriega, 142 Ariz. 474, 482, 690 21 P.2d 775, 783 (1984); see also State v. Islas, 132 Ariz. 590, 592, 647 P.2d 1188, 22 1190 (App. 1982) ("The instruction given by the court does nothing more than 23 state the well-established rule in Arizona that one who is at fault in provoking a 24 difficulty which necessitates his use of force may not relay upon a plea of self25 defense to justify or excuse his conduct."); State v. Sourivathong, 130 Ariz. 461, 26 463, 636 P.2d 1243, 1245 (App. 1981) ("When it is uncontroverted that the 27 accused was at fault in provoking the difficulty which necessitated the defensive 28
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1 use of force, the court should usually refuse to instruct on self-defense.") 2 (collecting cases). 3 11. "Under these circumstances, self-defense instructions are appropriate 4 only if there is additional evidence tending to show that the accused, though at 5 fault in provoking the difficulty, withdrew from the encounter or clearly 6 communicated the intent to do so." Sourivathong, 130 Ariz. at 463, 636 P.2d at 7 1245 (citing State v. Clayton, 109 Ariz. 587, 514 P.2d 720 (1973)). 8 12. "An accused may offer proof of the victim's reputation for violence 9 when a claim of self-defense is raised." State v. Santanna, 153 Ariz. 147, 149, 735 10 P.2d 757, 759 (1987) (citing Ariz. R. Evid. 404(a)(2)); see also Zamora, 140 Ariz. 11 at 340, 681 P.2d at 924 ("Although character evidence is not generally admissible 12 to prove that a person acted in conformity therewith, an accused may offer proof of 13 the victim's reputation for violence when an issue of self-defense is raised.") (citing 14 State v. Birdsall, 116 Ariz. 196, 568 P.2d 1094 (App.1977)). 15 13. "Where the defendant does not claim self-defense nor does the evidence 16 show that the victim was the initial aggressor, the violent character of the victim is 17 not relevant and such character trait evidence is not admissible." Santanna, 153 18 Ariz. at 149, 735 P.2d at 759 (citing State v. Wussler, 139 Ariz. 428, 432, 679 P.2d 19 74, 78 (1984)). 20 14. The Arizona Supreme Court indicated that a defendant pleading self21 defense does not have a carte blanche to introduce prior acts of violence by the 22 victim: 23 24 25 26 27 28
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Admittedly, specific acts of violence by the victim would be admissible if known to the defendant in order to prove the defendant's state of mind but only if such state of mind is relevant. State v. Dalglish, 131 Ariz. 133, 639 P.2d 323 (1982); State v. Zamora, 140 Ariz. at 341, 681 P.2d at 924. See R.Evid. 404(b), 17A A.R.S. In the instant case, however, specific instances of prior bad acts of the victim were not relevant to defendant's "I didn't do it" theory.

1 2 3 4 5 6 7 Furthermore, "proving character through specific acts is not permissible unless the evidence is otherwise properly admitted under Rule 405(b), where the victim's character is an `essential element' of the defense." State v. Williams, 141 Ariz. 127, 130, 685 P.2d 764, 767 (App.1984); [Ariz.] R. Evid. 405(b), 17A A.R.S. Here, the victim's character was not an "essential element" of the [I-didn't-do-it] defense. The trial judge properly refused to allow the evidence under R.Evid. 404(a)(2), 405(b), 17A A.R.S.

8 Santanna, 153 Ariz. at 149, 735 P.2d at 759. 9 15. Moreover, Arizona courts condition the introduction of evidence of the

10 victim's prior acts of violence upon proof that the defendant was aware of them at 11 the time of the charged offense: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Specific acts of violence by the victim are admissible only if the defendant knew of them, State v. Jackson, supra, or if they are directed toward third persons relating to or growing out of the same transaction, or so proximate in time and place and circumstances as would legitimately reflect upon the conduct or motives of the parties at the time of the affray. State v. Canedo, supra. See our related discussion in State v. Williams, 1 CA-CR 6207, 6963 (consolidated) also decided today. In this case the defendant made no showing that he knew of any gang called the "Eastsiders," that he knew the victim was a member of such a gang, that he knew the victim had a tattoo, that he knew the gang to be violent, or that such alleged membership in any way affected or was related to the reasonableness of his actions on the night in question. Additionally, although defendant claimed that two officers would testify that the victim's tattoo was consistent with a gang called the "Eastsiders," defendant apparently could not sustain his offer of proof. The victim denied any gang memberships or the existence of a gang called the "Eastsiders." One of the two officers testified only that there were three predominant local gangs, none of which was called the "Eastsiders." Neither testified to the existence of tattoos. The evidence was properly excluded. Zamora, 140 Ariz. at 340, 681 P.2d at 924 ("The defense was properly allowed to

1 introduce specific instances of the victim's possession of a gun, of which the 2 defendant was aware, as this evidence was relevant to the defendant's state of mind 3 at the time of the incident." (citing State v. Jackson, 94 Ariz. 117, 382 P.2d 229 4 (1963)); see also State v. Roscoe, 182 Ariz. 332, 334, 897 P.2d 634, 636 (App. 5 1994) ("Unless the defendant can show that he knew about the victim's prior acts, 6 he cannot show that such knowledge influenced his state of mind in order to justify 7 self-defense."); State v. Cano, 154 Ariz. 477, 479, 743 P.2d 956, 958 (App. 1987) 8 (same); State v. Williams, 141 Ariz. 127, 129, 685 P.2d 764, 766 (App. 1984) 9 (same). 10 11 12 13 14 15 16 17 18 19 20 DATED this 11th day of August, 2005.
RESPECTFULLY SUBMITTED, TERRY GODDARD Attorney General S/__________________________

ROBERT A. WALSH
ASSISTANT ATTORNEY GENERAL

Attorneys for RESPONDENTS I hereby certify that on August 11th, 2005, I electronically transmitted the attached document to the Clerk's office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrant: and Copies of the foregoing were deposited for mailing this 11th day of August, 2005 to:

21 KEN MURRAY Office of the Federal Public Defender 22 850 West Adams Street, Suite 201 23 Phoenix, Arizona 85007 Attorney for Petitioner 24 25 s/ SHIRLEY HOUSE 26 CRM61-041 27 122253 28
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