State v. Fierro

• Decision Date: 27 September 2022
• Docket Number: CR-20-0435-PR
• Citation: 80 Arizona Cases Digest 4,517 P.3d 635
• Parties: The STATE of Arizona, Appellee, v. Sergio FIERRO Jr., Appellant.
• Court: Arizona Supreme Court

80 Arizona Cases Digest 4
517 P.3d 635

The STATE of Arizona, Appellee,
v.
Sergio FIERRO Jr., Appellant.

No. CR-20-0435-PR

Supreme Court of Arizona.

Filed September 27, 2022

Mark Brnovich, Arizona Attorney General, Brunn (Beau) W. Roysden III, Solicitor General, Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals, Michael T. O'Toole, Assistant Attorney General, Criminal Appeals Section, Kathryn A. Damstra (argued), Assistant Attorney General, Criminal Appeals Section, Tucson, Attorneys for State of Arizona

Megan Page, Public Defender, Sarah L. Mayhew (argued), Pima County Public Defender's Office, Tucson, Attorneys for Sergio Fierro Jr.

JUSTICE BOLICK authored the Opinion of the Court, in which CHIEF JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and JUSTICE BEENE joined. JUSTICES LOPEZ, MONTGOMERY, and KING dissented.

JUSTICE BOLICK, Opinion of the Court:

¶1 In this case, we hold that the trial court committed fundamental error by instructing a jury that a conviction for attempted second degree murder may be based not only on intent to kill but on recklessness or the defendant's knowledge that serious injury would result. This same faulty instruction has been used repeatedly in prior cases. To put an end to such erroneous instructions, we provide a standalone instruction for attempted second degree murder. However, applying a fundamental error analysis to the facts of this case, we conclude the defendant has failed to demonstrate that the erroneous instruction prejudiced him. We therefore affirm his conviction and sentence.

BACKGROUND

¶2 We view the evidence in the light most favorable to sustaining the jury's verdict and resolve all reasonable inferences against the defendant. State v. Bible , 175 Ariz. 549, 595, 858 P.2d 1152, 1198 (1993) ; State v. Dickinson , 233 Ariz. 527, 528 n.1, 314 P.3d 1282, 1283 (App. 2013).

517 P.3d 639

¶3 J.H. went to his friend D.F.’s home in 2018. Because D.F. was not home, J.H. waited with D.F.’s brother, Sergio Fierro, in a nearby RV trailer. While J.H. and Fierro were talking, Fierro began making "paranoid statements," asking J.H. who he was "running with." When J.H. responded with confusion, Fierro grabbed a six-inch drill bit and stabbed J.H.’s neck. Fierro then continued stabbing J.H. repeatedly.¹

¶4 A friend of J.H.’s, P.P., then opened the door of the trailer and witnessed Fierro attacking J.H., who was beneath him. P.P. ran away from the trailer, but Fierro pursued him with the drill bit, ultimately stabbing P.P. in the face. Though seriously injured, J.H. gave chase and used a folding knife to distract Fierro, allowing P.P. to escape.

¶5 J.H. fled to a nearby mobile home, whose residents called the police. After an officer arrived and attended to J.H., Fierro approached them wielding the drill bit and a bottle of alcohol. The officer ordered Fierro to stop, but he refused to comply. The officer shot Fierro with a taser, incapacitating him. The officer then arrested Fierro. J.H. was hospitalized for a week for his wounds.

¶6 Fierro was charged with two counts of aggravated assault with a deadly weapon or dangerous instrument, two counts of aggravated assault causing temporary but substantial disfigurement, and one count of attempted second degree murder of J.H.

¶7 During his opening statement at Fierro's trial, the prosecutor repeatedly told the jury that to convict Fierro for attempted second degree murder, it would need to find that he intended to kill J.H. Then, in his closing argument, the prosecutor reiterated that to find Fierro guilty of attempted second degree murder, jurors must find that he intended to kill J.H. Fierro argued that he acted in self-defense and therefore was justified in his actions.

¶8 The trial court instructed the jury as follows:

A person commits attempted second degree murder if, acting with the kind of culpability otherwise required for commission of the offense, such person:

1. intentionally engages in conduct which would constitute the offense if the attendant circumstances were as such person believes them to be; or

2. intentionally does or omits to do anything which, under the circumstances as such person believes them to be, is any step in a course of conduct planned to culminate in the commission of the offense.

The crime of second degree murder requires proof of the following:

1. The defendant intentionally caused the death of another person; or

2. The defendant caused the death of another person by conduct which he knew would cause death or serious physical injury; or

3. Under circumstances manifesting extreme indifference to human life, the defendant recklessly engaged in conduct which created a grave risk of death. The risk must be such that disregarding it was a gross deviation from what a reasonable person in the defendant's situation would have done.

Fierro's lawyer did not object to this instruction.

¶9 The trial court also instructed the jury that "after you have deliberated and determined the facts you may then find that some instructions no longer apply. You must then consider the instructions that do apply together with the facts as you have determined them. Decide this case by applying these instructions to the facts which you find."

¶10 The jury found Fierro guilty on all charges. The trial court sentenced him to concurrent terms of imprisonment for the aggravated assault convictions, the longest of which totaled 11.25 years, to be served consecutively with a 15.75-year prison term for the attempted second degree murder conviction.

517 P.3d 640

¶11 Fierro appealed, arguing for the first time that the trial court erred in instructing the jury on attempted second degree murder. The court of appeals held that the trial court's jury instruction allowing Fierro's conviction for attempted second degree murder with a mental state of recklessness or based on conduct he knew would result in serious physical injury constituted fundamental error. State v. Fierro , No. 2 CA-CR 2019-0161, 2020 WL 5820866, at *2 ¶ 8 (Ariz. App. Sept. 30, 2020) (mem. decision). However, the court also concluded that the erroneous instruction did not prejudice Fierro, and therefore, it affirmed his convictions and sentences. Id. at *3 ¶ 11.

¶12 We granted review to provide guidance on the appropriate jury instruction for attempted second degree murder, a recurring matter of statewide importance, and to determine whether the erroneous jury instruction in this case prejudiced Fierro. We have jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24.

I. JURY INSTRUCTION FOR ATTEMPTED SECOND DEGREE MURDER

¶13 For many years, trial courts have repeatedly issued incorrect jury instructions on the charge of attempted second degree murder, suggesting it can be committed by reckless conduct or when a defendant knows that serious bodily harm would result. Our court of appeals recognized over a quarter-century ago that "in Arizona there is no offense of attempted reckless second degree murder." State v. Curry , 187 Ariz. 623, 627, 931 P.2d 1133, 1137 (App. 1996). But erroneous instructions continued, owing to the confusion of statutes separately governing second degree murder and attempt.

¶14 In State v. Ontiveros , 206 Ariz. 539, 540 ¶ 5, 81 P.3d 330, 331 (App. 2003), the trial court incorrectly instructed on attempted second degree murder that the jury must determine:

1. The defendant intentionally committed an act; and

2. The act was a step in a course of conduct which the defendant planned or believed would cause the death or serious physical injury of another person .

(Emphasis added.) The court of appeals noted the statutory definition of second degree murder encompasses a defendant who, without premeditation, knowingly engages in conduct that will cause death or serious bodily injury, and the conduct actually causes death. Id. at 540–41 ¶ 7, 81 P.3d at 330–31 (citing A.R.S. § 13-1104(A)(2) (2001)). Attempt, by contrast, concerns a defendant who intentionally commits an act that is "any step in a course of conduct planned to culminate in commission of an offense." Id. at 541 ¶ 9, 81 P.3d at 331 (citing § 13-1001(A)(2) (2001)) (emphasis omitted).

¶15 The trial court's instruction on attempted second degree murder was erroneous, the court of appeals reasoned, because it included actions that knowingly would lead to serious bodily injury. Id. ¶¶ 10–11. "Because the completed offense of second-degree murder requires the result of death, it is not enough ... that a person knows that his conduct will cause ‘serious physical injury.’ A person who does not intend or know that his conduct will cause death cannot be said to have taken action ‘planned to culminate’ in death." Id. ¶ 10.

¶16 Despite Ontiveros , trial courts, including the one here, have continued to give jury instructions that fail to limit the requisite mental state for attempted second degree murder to intent to kill. See, e.g. , Dickinson , 233 Ariz. at 530 ¶ 10, 314 P.3d at 1285., 233 Ariz. 527, 314 P.3d 1282 (App. 2013) ; State v. Juarez-Orci , 236 Ariz. 520, 523–524 ¶¶ 9–13, 342 P.3d 856, 859–860 (App. 2015). Indeed, the Revised Arizona Jury Instructions (Criminal) do not contain a separate instruction for attempted second degree murder. Rather, they define "attempt" with reference to the particular crime involved. RAJI 10.01. Because second degree murder can only be committed when death results, the intent to cause serious physical injury and reckless conduct language has sometimes been imported into instructions for attempted second degree murder, despite a RAJI "Use Note" to the contrary. Id. ("Attempted

517 P.3d 641

second degree murder requires proof that the defendant either intended to or knowingly attempted to cause the death of another ...."). Therefore, in an attempted second degree murder case, neither intent to cause serious physical injury or recklessness is enough. The defendant must have intended to kill. Ontiveros , 206 Ariz. at 541 ¶ 10, 81 P.3d at 331.

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