State v. Fischer

• Decision Date: 17 April 2017
• Docket Number: No. CR–15–0380–PR,CR–15–0380–PR
• Parties: STATE of Arizona, Appellant, v. Robert FISCHER, Appellee.
• Court: Arizona Supreme Court

392 P.3d 488

STATE of Arizona, Appellant,

v.Robert FISCHER, Appellee.

No. CR–15–0380–PR

Supreme Court of Arizona.

Filed April 17, 2017

William G. Montgomery, Maricopa County Attorney, Diane Meloche (argued), Deputy County Attorney, Phoenix, Attorneys for State of Arizona

Steven C. Biggs (argued), Steven C. Smith, Smith LC, Phoenix, Attorneys for Robert Fischer

Timothy J. Eckstein (argued), Randy McDonald, Osborn Maledon, P.A., Phoenix, Attorneys for Amicus Curiae Arizona Attorneys for Criminal Justice

Mark Brnovich, Arizona Attorney General, Dominic Draye, Solicitor General, Joseph T. Maziarz, Chief Counsel, Linley Wilson, Assistant Attorney General, Criminal Appeals Section, Phoenix, Attorneys for Amicus Curiae Arizona Attorney General

JUSTICE BRUTINEL authored the opinion of the Court, in which CHIEF JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES TIMMER and BOLICK joined.

JUSTICE BRUTINEL, opinion of the Court:

¶ 1 A jury found Robert Fischer guilty of second degree murder. But the trial court, under Arizona Rule of Criminal Procedure ("Rule") 24.1(c)(1), determined that the verdict was contrary to the weight of the evidence and granted a new trial. Independently reexamining the evidence, the court of appeals concluded that the trial court erred by granting a new trial. We hold that the court of appeals exceeded the proper scope of deferential appellate review by independently reweighing the evidence rather than determining if substantial evidence supported the trial judge's ruling. Because substantial evidence supports the trial court's determination, we affirm the order granting a new trial.

I. BACKGROUND

¶ 2 Defendant Robert Fischer is an attorney and a former police officer. While visiting his family in late December 2010, Fischer, his step-daughter Belinda, and Belinda's husband, Lee, stayed up talking and drinking. Around 10 p.m., Lee excused himself to make a phone call and check his email. He returned worried and upset and showed Fischer an email about a non-compete agreement. Belinda went to bed around 11:30 p.m., and Fischer and Lee continued drinking heavily.

¶ 3 Fischer testified that he awoke the next morning to a popping sound and found a man on the kitchen floor in a pool of blood. Confused and unaware of the man's identity, he called 911, and police officers arrived shortly thereafter. Lee—the man on the floor—had a single gunshot wound

to his head; there was a handgun in Lee's right hand, and his thumb was in the trigger guard.

¶ 4 During his police interview, Fischer seemed confused and had difficulty keeping track of the time. Fischer admitted the gun was his but explained that he had disassembled it upon arriving at Belinda and Lee's house. Fischer stated that he wanted to help the police figure out what had happened but he was unable to remember.

¶ 5 The police obtained a search warrant to acquire physical evidence from Fischer and Belinda. There was blood on Fischer's left foot and on the left side of his left pajama pant leg. The police swabbed Fischer's feet, performed a gunshot residue test, and took fingerprints and a blood sample. Crime scene specialists seized and analyzed additional evidence from the house.

¶ 6 The State charged Fischer with second degree murder and tried the case on the theory that Fischer shot Lee and then manipulated the scene to make it appear that the gunshot wound

was self-inflicted. During trial, the court admitted expert testimony regarding the blood spatter, the gun and its position in Lee's hand, the DNA and fingerprint evidence, the gunshot residue, and the likelihood of Fischer having blacked out from alcohol consumption.

¶ 7 Following the guilty verdict, Fischer moved for a new trial under Rule 24.1(c)(1). The trial court considered the evidence and determined:

There was, quite simply, no physical evidence that the Defendant fired the gun that killed Lee. The physical evidence establishes only that the Defendant was present in a chair near where Lee was sitting at the time of [sic] the gun was fired. Det. Acosta's opinion that the Defendant staged the scene by manipulating Lee's body is not supported by the physical evidence, lacks credibility, and is sheer speculation.

In its lengthy minute entry, the court chronicled the physical evidence supporting its conclusion that the guilty verdict was contrary to the weight of the evidence and granted the motion for a new trial.

¶ 8 The court of appeals reversed. State v. Fischer , 238 Ariz. 309, 322 ¶ 82, 360 P.3d 105, 118 (App. 2015). After independently examining the evidence, the court concluded that the jury properly weighed the evidence and its verdict was not a miscarriage of justice. Id . at 321 ¶ 76, 360 P.3d at 117. The court of appeals also concluded that the trial court abused its discretion "by making factual findings that were not supported by the record, and by failing to consider all the evidence in reaching its conclusions." Id. at 316 ¶ 29, 360 P.3d at 112.

¶ 9 We granted review to consider the proper role of the trial court in deciding whether a verdict is contrary to the weight of the evidence, a question of statewide importance. We also consider whether the court of appeals erred in its independent examination of the evidence and conclusion that the trial court abused its discretion. We have jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12–120.24.

II. DISCUSSION

A. Standard of Review

¶ 10 We review a trial court's decision to grant a new trial for an abuse of discretion. Smith v. Moroney , 79 Ariz. 35, 38–39, 282 P.2d 470, 472 (1955). We review interpretation and application of court rules de novo. Allen v. Sanders , 240 Ariz. 569, 571 ¶ 9, 382 P.3d 784, 786 (2016).

B. Motion for a New Trial

¶ 11 A court may grant a new trial if "[t]he verdict is contrary to law or to the weight of the evidence." Ariz. R. Crim. P. 24.1(c)(1). Arizona courts use essentially the same standard in civil and criminal cases, and we therefore consider both civil and criminal case law in our analysis. Compare Ariz. R. Civ. P. 59(a)(1)(H) (authorizing the court to grant a new trial when "the verdict ... is not supported by the evidence or is contrary to law") with Ariz. R. Crim. P. 24.1(c)(1).

¶ 12 The trial court's authority to order a new trial when the jury verdict is contrary to the weight of the evidence is deeply rooted in our law. In 1757, Lord Mansfield wrote that "[t]rials by jury, in civil causes, could not subsist now, without a power, somewhere, to grant new trials." Reeves v. Markle , 119 Ariz. 159, 163, 579 P.2d 1382, 1386 (1978) (quoting Bright v. Eynon , 1 Burr. 390, 393, 97 Eng. Rep. 365, 366 (1757)). The authority to grant a new trial was included in Arizona's original territorial code. Ariz. Howell Code ch. XI § 409, 115–16 (1865) ("The court in which a trial is had upon the issue of facts, has power to grant a new trial where a verdict has been rendered against the defendant, upon his application in the following cases only: ... 6^th. When the verdict is contrary to law or evidence."). Over the past century, this Court has consistently recognized that unjust verdicts, while rare, can occur. As we noted in Reeves , "Due to his unique position, the trial judge has become the primary buffer against unjust verdicts. He performs an indispensable function without which our system of justice could not hold out the promise of a [ ] uniform application of the law." 119 Ariz. at 163, 579 P.2d at 1386.

¶ 13 In 1926, this Court delineated the trial judge's "duty" to grant a new trial:

The trial courts may weigh the evidence, and, if they think injustice has been done, should grant a new trial. It is their duty to supervise the verdict of the jury and grant a new trial if the verdict in the opinion of the court is against the weight of the evidence, or if it is arbitrary and manifestly or clearly wrong, or if it appears to be the result of passion, prejudice [or] misconduct of the jury.

Huntsman v. First Nat'l Bank , 29 Ariz. 574, 578, 243 P. 598, 600 (1926). The Huntsman court held, "If after a full consideration of the case the trial court was satisfied that the verdict was not supported by the evidence, and that substantial justice had not been done between the parties, it was its duty , in the exercise of a sound discretion, to set the verdict aside." Id . at 579, 243 P. at 600 (emphasis added). Subsequent cases have consistently recognized the trial judge's authority to grant a new trial.¹

¶ 14 The duty to grant a new trial when the verdict is against the clear weight of the evidence has been labeled the "thirteenth juror rule," or the "ninth juror rule" in a civil case. See Walsh v. Advanced Cardiac Specialists Chartered , 229 Ariz. 193, 197–98 ¶¶ 15–16, 273 P.3d 645, 649–50 (2012). "The trial judge, so far as this duty is concerned, sits as a thirteenth juror, and he, as well as the jury, must be convinced that the weight of the evidence sustains the verdict, or it is his imperative duty to set it aside." Brownell v. Freedman , 39 Ariz. 385, 389, 6 P.2d 1115, 1116 (1932). More recently, this Court has described the judge's role in granting a new trial as an exercise of "broad" or "wide" discretion, rather than in terms of duty. See City of Glendale v. Bradshaw , 114 Ariz. 236, 237–38, 560 P.2d 420, 421–22 (1977).

¶ 15 Trial judges are given such broad discretion because, like the jury, they observed the trial:

The trial judge has the same opportunity of seeing the witnesses, learning their interest, observing their manner of testifying, and of judging the probability of the truthfulness of their testimony as has the jury, and, by reason of his experience and training, should be better able correctly to evaluate the testimony.... If the evidence accredited by the jury is improbable or palpably untrue, he should not shirk his duty of granting a new trial. He should exercise his power to prevent injustice as well as to promote justice.

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