State v. Ewer
| Decision Date | 18 January 2023 |
| Docket Number | CR-21-0059-PR |
| Parties | STATE of Arizona, Appellee, v. Jordan Christopher EWER, Appellant. |
| Court | Arizona Supreme Court |
Kris Mayes, Arizona Attorney General, Alice Jones, Deputy Solicitor General, Karen Moody (argued), Assistant Attorney General, Criminal Appeals Section, Tucson, Attorneys for State of Arizona
Megan Page, Pima County Public Defender, Erin K. Sutherland (argued), Deputy Public Defender, Tucson, Attorneys for Jordan Christopher Ewer
¶1 Arizona's self-defense statute provides that "a person is justified in threatening or using physical force against another when and to the extent a reasonable person would believe that physical force is immediately necessary to protect [one]self against the other's use or attempted use of unlawful physical force." A.R.S. § 13-404(A). The Revised Arizona Jury Instruction ("RAJI") regarding self-defense, however, states that the justification defense applies to a "defendant" instead of a "person." See Rev. Ariz. Jury Instr. (Crim.) Justification for Self-Defense 4.04, at 63–65 (4th ed. 2016). In this case, we consider whether the reference to "person" in § 13-404(A) extends to both the defendant and the victim or refers only to the defendant. For the following reasons, we hold that the justification defense provided by § 13-404(A) only applies to a defendant's conduct.
¶2 In July 2017, Emily attempted to purchase heroin from Jeffrey Ferri. After Emily gave Ferri twenty dollars, he told her that he would give her the drugs later. When the purchased heroin was not delivered, Emily told her fiancée Gilbert about her failed drug transaction. Gilbert and Emily then went to Ferri's residence to retrieve either the purchased heroin or the twenty dollars. Because Ferri was not home when Gilbert and Emily arrived, Ferri's roommate allowed Gilbert to take a Bluetooth speaker owned by Ferri as "collateral" for the heroin.
¶3 Later that night, Ferri, defendant Jordan Ewer, and others drove to Gilbert's home to retrieve the speaker. A confrontation ensued. Fearing that Gilbert might have a gun, Ewer and the others decided to leave; but as they were leaving, Gilbert hit their car with a rock and punched one of the occupants in the car. In response, Ewer got out of the car and brandished a gun. Seeing the weapon, Gilbert and Emily retreated into their home while Ewer and the others drove away.
¶4 A few hours later, Ewer, accompanied by two other individuals, returned to Gilbert's house. As they arrived, Gilbert and Emily came outside. When Emily noticed that Ewer had drawn his gun, she told him to put it away or she would "smack him in the face with a golf club." At this point, both groups began throwing rocks at each other. As Ewer and the others started backing away from the scene, Gilbert and Emily began to follow them. Ewer responded by firing multiple times in Gilbert's direction, hitting him once in the back. Paramedics responded to Gilbert's house and pronounced him dead at the scene.
¶5 The State charged Ewer with one count of second degree murder, disorderly conduct involving a firearm, and discharge of a firearm in or into the city limits. Before trial, Ewer requested the jury be instructed using the RAJIs for justified use of deadly force in self-defense, defense of a third person, and crime prevention. These instructions provide that "[a] defendant is justified" in using force under specified conditions, and also use the word "defendant" elsewhere. See RAJI Justification for Self-Defense 4.04; RAJI Justification for Self-Defense Physical Force 4.05, at 66; RAJI Justification for Defense of a Third Person 4.06, at 68; RAJI Use of Force in Crime Prevention 4.11, at 78.
¶6 The State proposed that the word "defendant" be replaced by "person" throughout the justification instructions, arguing that the jury could apply the justification instructions to Gilbert's conduct as well as Ewer's. Over Ewer's objection, the trial court granted the State's request for the modified justification jury instructions and ruled that the State could argue that the victim's actions were legally justified.
¶7 In its closing argument, the State told the jury that the justification instructions applied equally to the defendant's and Gilbert's actions, and that "if [Gilbert's] conduct was lawful, then [Ewer] is not justified." The jury returned a guilty verdict on all counts.
¶8 The court of appeals vacated Ewer's convictions and remanded for a new trial. State v. Ewer , 250 Ariz. 561, 571 ¶ 34, 482 P.3d 1056, 1066 (App. 2021). The court concluded that the "[j]ustification presumptions are not intended to apply to the victim's conduct" and "[t]he modified jury instructions and the state's argument applying them to the victim ... were therefore improper." Id. at 567 ¶ 18, 482 P.3d at 1062. Additionally, the court determined that this error was not harmless because it infected every count against Ewer and had a strong likelihood of misleading the jury. Id. at 568–69 ¶ 23, 482 P.3d at 1063–64.
¶9 We granted review to determine whether the self-defense justification jury instruction may incorporate the use of force by both the defendant and victim or if the instruction applies only to the defendant. This is a question of statewide concern and is likely to recur. We have jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution.
¶10 "We review a trial court's decision to give a jury instruction for an abuse of discretion." State v. Aragón , 252 Ariz. 525, 528 ¶ 6, 505 P.3d 657, 660 (2022). We review de novo whether a trial court properly instructed the jury, State v. Champagne , 247 Ariz. 116, 130 ¶ 22, 447 P.3d 297, 311 (2019), and "whether [the] jury instructions properly state the law," State v. Payne , 233 Ariz. 484, 505 ¶ 68, 314 P.3d 1239, 1260 (2013). Additionally, "[w]e consider the jury instructions as a whole to determine whether the jury received the information necessary to arrive at a legally correct decision." State v. Dann , 220 Ariz. 351, 363 ¶ 51, 207 P.3d 604, 616 (2009).
¶11 Although each party is entitled to jury instructions on "any theory of the case reasonably supported by the evidence," Champagne , 247 Ariz. at 137 ¶ 60, 447 P.3d at 318 (quoting State v. Bolton , 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995) ), a jury instruction is improper if it misleads the jury, see State v. Kuhs , 223 Ariz. 376, 384 ¶ 37, 224 P.3d 192, 200 (2010).
¶12 Section 13-404(A) states that "a person is justified in threatening or using physical force against another when and to the extent a reasonable person would believe that physical force is immediately necessary to protect [one]self against the other's use or attempted use of unlawful physical force." (Emphasis added.) Although A.R.S. § 13-105(30) defines "person" as "human being," this broad definition could refer to either a defendant or victim. The issue before this Court is whether the reference to "person" in § 13-404(A) is necessarily limited to a defendant, as reflected in Arizona's self-defense jury instruction. See RAJI Justification for Self-Defense 4.04.
¶13 To resolve this question, we must consider the context of § 13-404(A) and related statutes on the same subject to properly discern the statutory definition. See Molera v. Hobbs , 250 Ariz. 13, 24 ¶ 34, 474 P.3d 667, 678 (2020) ; A.R.S. §§ 13-401 to -403, -405 to -411 (providing justification defenses for the use of deadly force, defense of a third person, defense of premises, defense of property, and the use of physical force in law enforcement and crime prevention). "Our task in statutory construction is to effectuate the text if it is clear and unambiguous," BSI Holdings, LLC v. Ariz. Dep't of Transp. , 244 Ariz. 17, 19 ¶ 9, 417 P.3d 782, 784 (2018), and to do so, we "interpret statutory language in view of the entire text, considering the context and related statutes on the same subject." Molera , 250 Ariz. at 24 ¶ 34, 474 P.3d at 678 (citation omitted); see also State ex rel. Larson v. Farley , 106 Ariz. 119, 122, 471 P.2d 731, 734 (1970) ().
¶14 Looking to the related justification statutes in Chapter 4 of Title 13 for context, the use of "person" clearly reflects a focus on an individual accused of a crime and subject to criminal prosecution. See §§ 13-401 to -403, -405 to -411. For example, § 13-401(A), which discusses the availability of justification as a defense, makes clear that a "person[’s]" conduct is only justified for certain crimes and the defense "is unavailable in a prosecution " for other crimes. (Emphasis added.) Additionally, subsection (B) refers to a criminal prosecution: "[J]ustification, as defined in this chapter, is a defense in any prosecution for an offense pursuant to this title." § 13-401(B) (emphasis added).
¶15 The other justification statutes also use this common, contextual theme: providing a "person"—a putative defendant in a criminal prosecution—with the ability to lawfully use physical force to protect oneself or a third person from the threatened unlawful use of force by another person, as well as the ability to use force to prevent another person from committing certain enumerated crimes. See §§ 13-401 to -403, -405 to -411. In context, these related statutes indicate that justification defenses are afforded to a "person" who is a defendant in a criminal prosecution.
¶16 Section 13-205(A), another statute that references the justification defense, also provides helpful context in defining "person" in § 13-404(A). This statute provides, in part, that "[i]f evidence of justification pursuant to [ A.R.S. §§ 13-401 to -421] is presented by the defendant , the state must prove beyond a reasonable doubt...
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