State v. Almaguer

Decision Date31 May 2013
Docket NumberNo. 2 CA–CR 2011–0249.,2 CA–CR 2011–0249.
Citation661 Ariz. Adv. Rep. 4,232 Ariz. 190,303 P.3d 84
PartiesThe STATE of Arizona, Appellee, v. Jesus Xavier ALMAGUER, Appellant.
CourtArizona Court of Appeals


Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and Kathryn A. Damstra, Tucson, Attorneys for Appellee.

Lori J. Lefferts, Pima County Public Defender By Frank P. Leto, Tucson, Attorneys for Appellant.



[232 Ariz. 192]¶ 1 Jesus Almaguer was charged with second-degree murder, and a jury convicted him of the lesser offense of manslaughter. The trial court found a prior burglary conviction and sentenced Almaguer to an aggravated term of nineteen years' imprisonment based on the use of a deadly weapon, harm to the victim's family, and Almaguer's fleeing the scene of the homicide. He appeals his conviction on the ground he was denied his constitutional right to a fair trial, specifically challenging various jury instructions, the court's preclusion of certain testimony, and its denial of his motion for a mistrial based on a witness's “outburst.” For the following reasons, we affirm.

Factual Background and Procedural History

¶ 2 We view the facts in the light most favorable to sustaining the verdict, resolving all reasonable inferences against the defendant. State v. Karr, 221 Ariz. 319, ¶ 2, 212 P.3d 11, 12 (App.2008). Around midnight one Friday in May 2008, Almaguer and his friend Albert Cota attended a party at a Tucson apartment shared by Jolene L., her former boyfriend Abram, and their children. When Almaguer and Cota arrived, Abram's father Antonio, Sr. and brother Antonio, Jr. were drinking, smoking marijuana, and socializing with other guests.

¶ 3 Later in the evening, Antonio, Sr. and his sons were smoking on the balcony when Almaguer and Cota came out of the apartment and Cota urinated off the balcony. Abram verbally confronted Cota and cursed at him, and Almaguer said, “I wouldn't let him be talking shit like that to me.” Abram swore at Almaguer, and Almaguer started walking toward him. Almaguer then punched Abram, and the two began to fight. Antonio, Sr. attempted to separate them, and Cota removed his shirt, preparing to join the fight. Antonio, Sr. told Almaguer to leave, and Almaguer reached for a handgun secured in his belt. Antonio, Sr. knocked him to the ground. As the two wrestled, Antonio, Jr. and Abram joined the fray, and Almaguer fired the gun once, shooting Antonio, Jr. 1 Almaguer stood up and pointed the gun at Antonio, Sr. and Abram, and Cota yelled, [S]hoot him, shoot him,” and, “Did we get him? Did you get him? Shoot again.” They both fled to Almaguer's vehicle. As they drove away, Cota telephoned Jolene to say he was sorry and “it [wa]s not supposed to happen that way.” Antonio, Jr. died from his injury.

¶ 4 Police located and pursued a vehicle matching the description of the car driven by Cota and Almaguer, but it evaded them. Cota was arrested the next day, and a warrant was issued for Almaguer, who eventually was extradited from Mexico in April 2010. He was tried, convicted, and sentenced as described above. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12–120.21(A)(1), 13–4031, and 13–4033(A).

Jury Instructions

¶ 5 Almaguer asserts his constitutional right to a fair trial was violated when the trial court failed to give certain requested jury instructions. SeeU.S. Const. amends. VI, XIV; Ariz. Const. art. II, § 4. He argues the court was required to instruct the jury on the state's burden to disprove his claim he had acted in self-defense as to the lesser offenses of manslaughter and negligent homicide, and also erred by denying his request for instructions defining the terms “proximate cause” and “voluntary act.” We review the trial court's decision to give or refuse a jury instruction for an abuse of discretion.” State v. Hurley, 197 Ariz. 400, ¶ 9, 4 P.3d 455, 457 (App.2000). Moreover, the court has an independent duty to instruct on the law when the matter is vital to a proper consideration of the evidence, even if the particular instruction is not requested. State v. Avila, 147 Ariz. 330, 337, 710 P.2d 440, 447 (1985). We view the instructions as a whole to determine de novo whether a given instruction correctly states the law. State v. Abdi, 226 Ariz. 361, ¶ 5, 248 P.3d 209, 211 (App.2011).

Justification Instruction

¶ 6 The use of deadly physical force in self-defense is justified [w]hen and to the degree a reasonable person would believe that deadly physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly physical force.” A.R.S. § 13–405(A)(2). A defendant is entitled to a jury instruction on justification when he presents the “slightest evidence” tending to prove “a hostile demonstration, which may be reasonably regarded as placing the accused apparently in imminent danger of losing h[is] life or sustaining great bodily harm.” State v. Lujan, 136 Ariz. 102, 104, 664 P.2d 646, 648 (1983); see also State v. Andersen, 177 Ariz. 381, 386, 868 P.2d 964, 969 (App.1993). Justification is not an affirmative defense; instead, if a defendant presents evidence of self-defense, the state must prove ‘beyond a reasonable doubt that the defendant did not act with justification.’ State v. King, 225 Ariz. 87, ¶ 6, 235 P.3d 240, 242 (2010), quotingA.R.S. § 13–205(A). We review de novo whether, as a question of law, justification may be raised to defend against charges of manslaughter and negligent homicide. See id. ¶ 5 (interpretation of self-defense statute reviewed de novo ); State v. Nelson, 214 Ariz. 196, ¶ 7, 150 P.3d 769, 770 (App.2007) (reviewing de novo allegedly incompatible jury instructions on accomplice liability and negligent homicide because issue involves statutory construction and question of law).

¶ 7 Almaguer supported his allegation of self-defense through the testimony of others. See Karr, 221 Ariz. 319, ¶ 14, 212 P.3d at 14 (defendant entitled to self-defense instruction if reasonably supported by defendant's version of facts). Based on Almaguer's self-defense theory, the court gave the following instruction:

If evidence was presented that raises the defense of self-defense for second degree murder, then the State has the burden of proving beyond a reasonable doubt that the defendant did not act with such justification. If the State fails to carry this burden, then you must find the defendant not guilty of the charge.

Almaguer argues, as he did below, the instruction should have provided specifically that if the state failed to carry its burden to disprove the justification defense, the jury should find him not guilty of all charges, including the lesser offenses of manslaughter and negligent homicide. He asserts the court's failure to include his requested instruction constitutes reversible error.2See State v. Denny, 119 Ariz. 131, 134, 579 P.2d 1101, 1104 (1978) (remanding for new trial where trial court provided no jury instruction on state's burden to disprove justification); State v. Garcia, 114 Ariz. 317, 560 P.2d 1224 (1977) (same).

¶ 8 The state argues that the reasonable-person standard applicable to justification is incompatible with the mens rea of recklessness applicable to manslaughter and negligent homicide,3 and Almaguer therefore was not entitled to raise the justification defense as to the lesser offenses, citing decisions from Colorado and New Jersey in support of its conclusion that reckless acts can never be justified. See People v. Castro, 10 P.3d 700, 702 (Colo.App.2000) (defendant may not raise justification defense for crimes involving reckless mental state); State v. Rodriguez, 195 N.J. 165, 949 A.2d 197, 200–01 (2008) (exoneration on basis of self-defense clearly inconsistent with finding of manslaughter).

¶ 9 We disagree with the state's theory for several reasons. First, Castro is not persuasive because Colorado's justification defense and statutory burdens of persuasion differ from those in Arizona. CompareColo.Rev.Stat. § 18–1–704(1) (defendant justified in using force when he reasonably believes” force necessary to defend against “what he reasonably believes to be” unlawful force by another), and People v. Pickering, 276 P.3d 553, 555–57 & 556 n. 4 (Colo.2011) (state has no burden to disprove self-defense justification for crime involving recklessness), with King, 225 Ariz. 87, ¶¶ 11, 14, 235 P.3d at 243 (justification based on objective standard, permitting use of force only if ‘reasonable person would believe that physical force is immediately necessary to protect himself’; state bears burden to disprove theory), quotingA.R.S. § 13–404(A). And Rodriguez lends support to our conclusion, infra at ¶¶ 12–13, that although it is logically impossible for a jury to find a defendant guilty of a reckless offense while at the same time believing the defendant acted in self-defense, instructions on the two theories are not incompatible; in fact both would lead a jury to the same conclusion. 949 A.2d at 201–02 (because self-defense inconsistent with commission of reckless manslaughter, self-defense constitutes complete defense to charge and jury should be instructed on duty to acquit if defendant's use of deadly force justified).

¶ 10 Precisely because the mens rea of recklessness is incompatible with the justification defense, a jury should be guided in reaching a legally correct verdict. See State v. Noriega, 187 Ariz. 282, 284, 928 P.2d 706, 708 (App.1996) (purpose of jury instructions to inform jury of applicable law in understandable terms; “instructions are, in essence, a guide to the proper verdict”); State v. Denny, 27 Ariz.App. 354, 359, 555 P.2d 111, 116 (1976) (jury should be given both self-defense and manslaughter instruction so it may choose one theory). Although a jury may reach inconsistent verdicts, it is the trial court's obligation to instruct it correctly on the applicable legal...

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