71 P.3d 351 (Ariz. 2003), CR-01-0223, State v. Casey

Docket Nº:CR-01-0223-PR.
Citation:71 P.3d 351, 205 Ariz. 359
Party Name:STATE of Arizona, Appellee, v. Fletcher CASEY, Appellant.
Case Date:June 25, 2003
Court:Supreme Court of Arizona

Page 351

71 P.3d 351 (Ariz. 2003)

205 Ariz. 359

STATE of Arizona, Appellee,


Fletcher CASEY, Appellant.

No. CR-01-0223-PR.

Supreme Court of Arizona

June 25, 2003.

Page 352

[205 Ariz. 360] Janet A. Napolitano, Attorney General, by Randall M. Howe, Chief Counsel, Criminal Appeals Section, and Doriane F. Zwillinger, Assistant Attorney General, Robert A. Walsh, Assistant Attorney General, Phoenix, Attorneys for State of Arizona.

D. Jesse Smith, Tucson, for Fletcher Casey.

Fletcher Casey, Yuma, Pro Se.


HOWARD, Judge.

¶ 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 affirmed the conviction and approved the jury

Page 353

[205 Ariz. 361] instruction. State v. Casey, No. 1 CA-CR 00-0476, mem. dec. at ¶ 4 (Ct.App. April 12, 2001). We granted review to examine the validity of that burden-shifting instruction. We have jurisdiction pursuant to article VI, § 5(3) of the Arizona Constitution.


¶ 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 A.R.S. § 13-205(A) (1997), which provides:

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 A.R.S. §§ 13-401 through 13-417.

¶ 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. Sierra-Cervantes, 201 Ariz. 459, ¶ ¶ 11-13, 37 P.3d 432, ¶ ¶ 11-13 (App.2001).


¶ 6 The issue we accepted for review was framed as follows:

Does A.R.S. § 13-205 offend due process in shifting the burden of 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 cases. 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

Page 354

[205 Ariz. 362] relies on the United States Supreme Court's decision in Martin v. Ohio, 480 U.S. 228, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987).

¶ 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 construe 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.


¶ 9 In 1997, the legislature enacted section 13-205(A), which states: "[A] defendant shall prove any affirmative defense raised by a preponderance of the evidence, including any justification defense under chapter 4 of this title." See 1997 Ariz. Sess. Laws, ch. 136, § 4. Self-defense is a "justification defense under Chapter 4." See §§ 13-401 through 13-417. Thus, the legislature has made clear its intention that a defendant bears the burden of proving the defense of self-defense by a preponderance of the evidence.

¶ 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...

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