State v. Ewer

• Citation: 250 Ariz. 561,482 P.3d 1056
• Decision Date: 26 January 2021
• Docket Number: No. 2 CA-CR 2019-0162,2 CA-CR 2019-0162
• Parties: The STATE of Arizona, Appellee, v. Jordan Christopher EWER, Appellant.
• Court: Arizona Court of Appeals

250 Ariz. 561

482 P.3d 1056

The STATE of Arizona, Appellee,

v.Jordan Christopher EWER, Appellant.

No. 2 CA-CR 2019-0162

Court of Appeals of Arizona, Division 2.

Filed January 26, 2021

Mark Brnovich, Arizona Attorney General, Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals, By Karen Moody, Assistant Attorney General, Tucson, Counsel for Appellee

Joel Feinman, Pima County Public Defender, By Erin K. Sutherland, Assistant Public Defender, Tucson, Counsel for Appellant

Chief Judge Vásquez authored the opinion of the Court, in which Vice Chief Judge Staring and Judge Brearcliffe concurred.

VÁSQUEZ, Chief Judge:

¶1 After a jury trial, Jordan Ewer was convicted of second-degree murder involving a firearm, disorderly conduct involving a firearm, and discharge of a firearm in or into the city limits. The trial court sentenced him to concurrent prison terms, the longest of which is thirteen years. On appeal, Ewer argues the court erred by modifying the justification jury instructions and in permitting the state to "argue justification from the perspective of the victim." He also contends the court improperly instructed the jury regarding flight to show consciousness of guilt because the evidence did not support it and the court had modified the instruction, which removed necessary context. For the following reasons, we vacate and remand.

Factual and Procedural Background

¶2 We view the facts and all reasonable inferences therefrom in the light most favorable to affirming Ewer's convictions. See State v. Molina , 211 Ariz. 130, ¶ 2, 118 P.3d 1094 (App. 2005). One morning in July 2017, Emily, the victim Gilbert's fiancée, and one of her roommates went to Jeffrey Ferri's apartment to buy heroin. Emily gave Ferri twenty dollars, and he told her he would provide the drugs later.¹ After a couple of hours, Emily informed Gilbert about her drug transaction with Ferri.

¶3 Gilbert, Emily, and a roommate then went to Ferri's apartment to retrieve either the promised heroin or the twenty dollars. Gilbert and Ferri had a contentious relationship as they had both been dating or "spending time" with Emily. Ferri was not home, but his roommate Eric and Eric's wife were there. Eric allowed Gilbert to take Ferri's Bluetooth speaker as "collateral."

¶4 Around midnight, Eric's wife drove Ferri, Ewer, and Eric to Gilbert's house because Ferri wanted to retrieve the speaker. Gilbert and Emily met Ferri and Ewer as they approached Gilbert's door. Ferri and Gilbert argued, and someone threw a rock, hitting Gilbert's car. When Ewer and the others got in the car to leave, Gilbert "socked [Ferri] in the mouth through the [car's] window" and slammed a boulder on the car. Ewer and Ferri got out of the car and, at some point, Ewer pulled out a firearm, and Ferri told him to shoot Gilbert. Gilbert and Emily retreated into the house and Ewer and the others drove away.

¶5 Later, Gilbert and Ferri talked on the phone about the speaker, and Ferri decided to return to Gilbert's house. Just before sunrise, Ferri, Ewer, and Ewer's stepbrother drove back to Gilbert's house. As they walked toward the house, Gilbert met them outside. Emily joined Gilbert outside and from her vantage point could see Ferri standing in the street, Ewer on the sidewalk behind Ferri, and Ewer's stepbrother in the distance. When Emily saw that Ewer had his firearm drawn, she told him to put it away or she would "smack him in the face with a golf club." Ewer's stepbrother threw a rock toward the house, and someone responded by throwing rocks toward Ferri, Ewer, and Ewer's stepbrother from the yard. As they began "backing up" to leave, Gilbert, with Emily walking behind him, started to follow. After Gilbert had walked through the gate, Ewer shot three times in his direction, hitting Gilbert once in the back.

¶6 Ferri, Ewer, and Ewer's stepbrother ran to the vehicle and drove away. They dropped the vehicle off near Ferri's apartment and returned to Ewer's home. Paramedics responded to Gilbert's house and determined Gilbert had no "signs of life," "heartbeat[,] or breathing." He was pronounced dead at the scene. Later that day, police went to Ewer's home and arrested him as he was preparing to leave with two backpacks containing clothing and other items.

¶7 A grand jury indicted Ewer, and he was convicted as charged and sentenced as described above. This appeal followed. We have jurisdiction over Ewer's appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Self-Defense Jury Instructions

¶8 Ewer argues that by modifying the standard jury instructions on justification, and permitting the state to "argue justification from the victim[, Gilbert]’s standpoint," the trial court "unconstitutionally shifted the burden of proof to the defense, confused the issues to be decided by the jury, and invited the jury to speculate as to matters not properly before it." We review for an abuse of discretion a court's decision to give requested jury instructions. State v. Larin , 233 Ariz. 202, ¶ 29, 310 P.3d 990 (App. 2013). In reviewing jury instructions, we consider them "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, ¶ 51, 207 P.3d 604 (2009). However, we review de novo constitutional issues, State v. Gay , 214 Ariz. 214, ¶ 4, 150 P.3d 787 (App. 2007), whether the jury instructions accurately stated the law, State v. Bocharski , 218 Ariz. 476, ¶ 47, 189 P.3d 403 (2008), and the statutory construction that provided the basis for jury instructions, see State v. Vogel , 207 Ariz. 280, ¶ 25, 85 P.3d 497 (App. 2004). And we consider state and federal due process claims together as both due process clauses "contain nearly identical language and protect the same interests."

Vong v. Aune , 235 Ariz. 116, ¶ 21, 328 P.3d 1057 (App. 2014) (quoting State v. Casey , 205 Ariz. 359, ¶ 11, 71 P.3d 351 (2003) ).

¶9 Before trial, Ewer requested jury instructions based on the standard instructions for justified use of deadly force in self-defense, defense of a third person, and crime prevention. Consistent with the standard instructions, the requested instructions provided for conditions in which "[a] defendant is justified" in using force in those circumstances, and elsewhere employ the word "defendant." See Rev. Ariz. Jury Instr. (RAJI) Stand. Crim. 4.04, 4.05, 4.06, 4.11 (4th ed. 2016). The requested crime-prevention instruction, for example, provided in part that "[t]he defendant is presumed to be acting reasonably if the defendant is acting to prevent the commission of ... aggravated assault." See RAJI Stand. Crim. 4.11.

¶10 The state requested an additional instruction for non-deadly force, and it proposed that the word "defendant" be replaced by "person" throughout the justification instructions, arguing the jury needed to understand that it could apply the justification instructions to the victim's conduct as well as Ewer's. Its proposed self-defense instruction provided:

A person is justified in using or threatening physical force in self-defense if the following two conditions existed:

1. A reasonable person would have believed that physical force was immediately necessary to protect against another's use or apparent attempted or threatened use of unlawful physical force, and

2. The person used or threatened no more physical force than would have appeared necessary to a reasonable person in the situation.

(Emphases added and omitted.) Over Ewer's objection, the trial court granted the requested modifications and ruled the state could argue that Gilbert's actions were legally justified. With additional minor modification, the jury was instructed as the state had proposed.

¶11 In closing, the state argued that the jury should apply the justification instructions to Gilbert as well as Ewer, asserting that

if [Gilbert]’s conduct was lawful, then this defendant is not justified. Right there. Right then and there. If you find that everything that [Gilbert] did in terms of his use of force [was lawful], then you don't have to even get to the reasonableness of this defendant's actions.

And in the context of subsequently reviewing the facts of both incidents, the state again asserted that "[i]f [Gilbert] was using lawful force, then [Ewer] is not justified." Accordingly, the state urged the jury to first consider:

[W]as [Gilbert]’s conduct reasonable under the circumstances, and was he justified in doing the things that he did in his own yard at his own home that le[ ]d to this defendant pulling a firearm in the first instance, right, pulling out the gun, and in the second instance, firing the gun and killing [Gilbert]? Was what [Gilbert] was doing at those two separate moments reasonable?

¶12 In a criminal prosecution, the state must prove every element of a criminal offense, and "this burden never shifts." State v. Seyrafi , 201 Ariz. 147, ¶ 7, 32 P.3d 430 (App. 2001). Shifting the state's burden to the defendant violates due process. Id. ¶ 8. Although the defendant, not the state, generally has the burden of proof for affirmative defenses, State v. Jeffrey , 203 Ariz. 111, ¶ 7, 50 P.3d 861 (App. 2002) (citing Patterson v. New York , 432 U.S. 197, 207, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) ), justification is not an affirmative defense, State v. Almaguer , 232 Ariz. 190, ¶ 6, 303 P.3d 84 (App. 2013). "[I]nstead, if a defendant presents evidence of self-defense, the state must prove ‘beyond a reasonable doubt that the defendant did not act with justification.’ " Id. (quoting State v. King, 225 Ariz. 87, ¶ 6, 235 P.3d 240 (2010) (quoting A.R.S. § 13-205(A) )). Trial courts may instruct the jury on permissive inferences, see State v. Abdi , 226 Ariz. 361, ¶ 10, 248 P.3d 209 (App. 2011), but they may not instruct the jury that an inference is required or a presumption is mandatory, see Sandstrom v. Montana , 442 U.S. 510, 514-15, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).

¶13 In Arizona, "[j]...