State v. Diaz

Citation813 P.2d 728,168 Ariz. 363
Decision Date23 July 1991
Docket NumberNo. CR-90-0212-PR,CR-90-0212-PR
PartiesThe STATE of Arizona, Appellee, v. Mario Palma DIAZ, Appellant.
CourtArizona Supreme Court

[168 Ariz. 364] Robert K. Corbin, Former Atty. Gen. by Jessica G. Funkhouser, Former Chief Counsel, Crim. Div. and Jack Roberts, Asst. Atty. Gen., Phoenix, for appellee.

Robert F. Arentz, Cochise County Public Defender by Benna R. Troup, Asst. Public Defender, Bisbee, for appellant.

AMENDED OPINION

MOELLER, Justice.

FACTS AND PROCEDURAL HISTORY

Mario Palma Diaz (defendant) was convicted of transportation for sale of a narcotic drug and of wilfully fleeing from a pursuing law enforcement vehicle. He contended that he committed the acts under duress and the trial court, at defendant's request, instructed the jury on the elements of duress. Defense counsel also requested, and the court gave, Recommended Arizona Jury Instruction (RAJI) 4.01, which read:

If you decide that the defendant's conduct was justified, you must find the defendant not guilty. 1

Defense counsel based part of her final argument on the language of this instruction. Following a guilty verdict, defendant made a motion for new trial and a separate motion to vacate judgment based on newly discovered evidence. Neither motion complained of the giving of RAJI 4.01.

On appeal, defense counsel asserted for the first time that the trial court had committed fundamental error by giving the RAJI instruction she had requested. The court of appeals agreed with this assertion, holding that the "Hunter rule" 2 in self-defense cases applied to this duress case and that the jury instruction had therefore impermissibly shifted the burden of proof. State v. Diaz, 166 Ariz. 442, 803 P.2d 435 (App.1990). The appeals court ordered a new trial.

We granted the state's petition for review and have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. § 12-120.24.

ISSUE

The state's petition for review phrased the issue as follows: "Is the giving of a Hunter instruction, requested by defense counsel, fundamental error in every case regardless of whether the defendant pleads duress instead of self-defense?" We note first that the term "Hunter instruction," which has crept into the language of Arizona jurisprudence, is somewhat of a misnomer. Hunter did not fashion an instruction--it merely condemned one. "Hunter instruction" has come to mean an instruction like the one disapproved in Hunter. Hunter held that the giving of former RAJI 4.01 was error in a self-defense case because the instruction was perceived to impermissibly shift the burden of proof on

[168 Ariz. 365] self-defense to the defendant. Hunter, 142 Ariz. at 90, 688 P.2d at 982

For the reasons stated below, we do not reach the outer limits of the issue as phrased by the state. We hold only that, under the circumstances of this case, the defendant cannot claim error for the first time on appeal by reason of an instruction given at his request. We therefore do not reach the question of whether the Hunter self-defense rationale would, in an appropriate case, apply in a duress case.

DISCUSSION

In Hunter, a first-degree murder case, this court held that the giving of the then-stock jury instruction, RAJI 4.01, was fundamental error in a self-defense case because the instruction could be construed to impermissibly shift the burden of proving self-defense to the defendant. 142 Ariz. at 90, 688 P.2d at 982. Hunter was decided in 1984. The present case was tried in 1989.

It does not necessarily follow, however, that a new trial is required when a defendant claiming duress, and not self-defense, deliberately requests and receives a "Hunter instruction" five years after Hunter was decided. Here, defendant not only requested the instruction that this court had several times struck down in the self-defense context, but also used its exact language in final argument. Absent any other explanation in the record, we must presume that defendant had some reason for requesting the instruction in this case even though it would be an erroneous instruction in a self-defense case.

This is invited error at its worst, and it is waived for appeal purposes. See State v. Tassler, 159 Ariz. 183, 185, 765 P.2d 1007, 1009 (App.1988). We have long held that a party cannot complain on appeal that the trial court gave an instruction that he specifically requested. State v. Taylor, 109 Ariz. 481, 483, 512 P.2d 590, 592 (1973); State v. Dutton, 106 Ariz. 463, 466, 478 P.2d 87, 90 (1970) (a defendant cannot complain on appeal that an instruction placed burden of proving innocence upon defendant, when defendant did not object to instruction at trial and in fact requested it); Roscoe v. Schoolitz, 105 Ariz. 310, 315, 464 P.2d 333, 338 (1970); State v. Evans, 88 Ariz. 364, 369, 356 P.2d 1106, 1109 (1960) (citing State v. Serna, 69 Ariz. 181, 186, 211 P.2d 455, 458 (1949), cert. denied, 339 U.S. 973, 70 S.Ct. 1031, 94 L.Ed. 1380 (1950)); Sisson v. State, 16 Ariz. 170, 141 P. 713 (1914) (even if shifts burden of proof); Verdugo v. Po Shing Gee, 4 Ariz.App. 113, 115, 417 P.2d 747, 749 (1966). As stated in Tassler, "Because the instruction given was the one expressly requested by defense counsel, that issue is waived. One may not deliberately inject error [into] the record and then profit from it on appeal." 159 Ariz. at 185, 765 P.2d at 1009.

We recognize that in State v. Tittle, a murder case in which the defendant received the death penalty, this court did not apply the doctrine of invited error to a defendant who requested and received the RAJI 4.01 instruction in connection with his claim of self-defense. 147 Ariz. 339, 342, 710 P.2d 449, 452 (1985). In Tittle, the state conceded that Hunter, which had not been decided before Tittle's trial, required a new trial. Id. Similarly, in State v. Garcia, the court of appeals, in holding that Hunter was retroactive, did not apply the doctrine of invited error in a case in which the defendant had requested RAJI 4.01 before this court's opinion in Hunter condemned its use in self-defense cases. 152 Ariz. 245, 731 P.2d 610 (App.1986).

In the present case, unlike in Tittle and Garcia, the rule in Hunter had been on the books for five years before the trial. A workable adversarial court system requires imputation of knowledge of the law to litigants--an imputation from which litigants should be relieved only sparingly. We have recently restated the fundamental error doctrine and pointed out its narrow applicability. State v. Gendron, --- Ariz. ---, 812 P.2d 626 (1991). Although the fundamental error doctrine competes with the doctrine of invited error, neither doctrine should be given automatic precedence over the other. In State v. Cannon, we applied fundamental error analysis to defendant's requested jury instruction without

[168 Ariz. 366] discussing the application of the...

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  • State v. West
    • United States
    • Arizona Supreme Court
    • September 30, 1993
    ...for the trial court to find the aggravating factor based on the stipulation, it was invited by the defendant. See State v. Diaz, 168 Ariz. 363, 365, 813 P.2d 728, 730 (1991) (party could not complain on appeal about the giving of an instruction himself requested). We therefore reject defend......
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    ...judge and did not define "in furtherance of"; thus any error from this portion of the instruction was invited. See State v. Diaz, 168 Ariz. 363, 365, 813 P.2d 728, 730 (1991) (when defendant requests an instruction and later claims fundamental error, any error is "invited error at its worst......
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    ...made the motion for reconsideration, Defendant cannot complain that the judge erred by hearing that motion. See State v. Diaz, 168 Ariz. 363, 365, 813 P.2d 728, 730 (1991). Moreover, courts have the inherent authority to clarify or modify their own judgments and orders. Skinner v. Superior ......
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    ...Ariz. 183, 185, 765 P.2d 1007, 1009 (App. 1988). Because Melendrez invited any error, the argument is waived. See State v. Diaz, 168 Ariz. 363, 365, 813 P.2d 728, 730 (1991); cf. State v. Dutton, 106 Ariz. 463, 466, 478 P.2d 87, 90 (1970) (defendant cannot object to instruction he requested......
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