State v. Garcia
| Decision Date | 07 August 1986 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 152 Ariz. 245,731 P.2d 610 |
| Parties | STATE of Arizona, Respondent, v. Raymond Rios GARCIA, Petitioner. 9785-PR. |
| Court | Arizona Court of Appeals |
The central question presented for our determination is whether our supreme court's decision in State v. Hunter, 142 Ariz. 88, 688 P.2d 980 (1984), holding instruction of a jury pursuant to Recommended Arizona Jury Instruction 4.01 is fundamental error, is to be given fully retroactive effect. We hold that full retroactivity is required, and accordingly reverse the trial court's dismissal of the petition for post-conviction relief here involved and remand for a new trial.
Petitioner was charged by information filed August 31, 1981 with two counts of aggravated assault, class three felonies, in violation of A.R.S. §§ 13-1204(A)(2) and (B), -1203(A)(1), -701, -702 and -801. At trial, the following instruction on self-defense was read to the jury at the request of petitioner's counsel:
If you decide that the defendant's conduct was justified, you must find the defendant not guilty.
Recommended Arizona Jury Instructions (RAJI) 4.01.
Petitioner was convicted on both charges and received concurrent sentences for the presumptive term of seven and one-half years on each count. 1 Petitioner's appellate counsel submitted a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Propriety of the self-defense instruction was not raised as an issue on appeal. This court reviewed the record and, finding no fundamental error, affirmed the convictions and sentences by memorandum decision dated September 2, 1982.
On September 20, 1984, our supreme court issued its decision in State v. Hunter, 142 Ariz. 88, 688 P.2d 980 (1984), holding that to instruct a jury on self-defense pursuant to RAJI 4.01 was fundamental error which could be challenged for the first time on direct appeal. See, e.g., State v. Edgar, 126 Ariz. 206, 613 P.2d 1262 (1980); State v. Evans, 125 Ariz. 140, 608 P.2d 77 (App.1980) (). Prior decisions regarding the state's burden of proof on the issue of justification had not reached the question of whether the error was fundamental because the instructions at issue were objected to at the trial level. See, e.g., State v. Denny, 119 Ariz. 131, 579 P.2d 1101 (1978); State v. Garcia, 114 Ariz. 317, 560 P.2d 1224 (1977).
Petitioner filed an amended petition for post-conviction relief on December 12, 1984, requesting his convictions and sentences be set aside in light of State v. Hunter. The trial court dismissed the petition and denied petitioner's motion for reconsideration by minute entry dated June 19, 1985 and mailed August 2, 1985. Petitioner timely filed for a review by this court on August 7, 1985. See State v. Byers, 126 Ariz. 139, 613 P.2d 299 (1980), overruled on other grounds, State v. Pope, 130 Ariz. 253, 635 P.2d 846 (1981). We have jurisdiction pursuant to A.R.S. § 13-4239(C).
The trial court denied the petition for post-conviction relief and motion for reconsideration on the grounds petitioner failed to raise his objection to the self-defense instruction on direct appeal and failed to file his petition for post-conviction relief within one year after this court's affirmance of his conviction. See Rule 32.2(a)(3), Arizona Rules of Criminal Procedure; A.R.S. § 13-4232(A)(3) and (4). However, both Rule 32 and the statutes contain a specific exception to the general rule of preclusion where there has been a "significant change in the law" justifying retroactive application. See Rules 32.2(b) and 32.1(g), Arizona Rules of Criminal Procedure; A.R.S. §§ 13-4232(B) and -4231(7). Rule 32.1(g) provides it is appropriate to file a petition for post-conviction relief where
[t]here has been a significant change in the law applied in the process which led to the petitioner's conviction or sentence, and there are sufficient reasons to allow retroactive application of the changed legal standard.
A.R.S. § 13-4231(7) provides a petition for post-conviction relief is appropriate where "[t]here has been a significant change in the law which if applied retroactively would beyond a reasonable doubt overturn petitioner's conviction." We believe State v. Hunter constitutes a "significant change in the law" within the meaning of these provisions. 2
It has long been the law in Arizona that once a defendant presents evidence sufficient to raise a reasonable doubt as to whether his conduct was justified, lack of justification becomes an element of the offense which the state must establish beyond a reasonable doubt. State v. Denny, 119 Ariz. 131, 579 P.2d 1101 (1978); State v. Garcia, 114 Ariz. 317, 560 P.2d 1224 (1977); Everett v. State, 88 Ariz. 293, 356 P.2d 394 (1960); Anderson v. Territory of Arizona, 9 Ariz. 50, 76 P.2d 636 (1904). The requirement was first imposed in Anderson, supra, based on the common-law presumption "which lies at the very foundation of criminal law--that of innocence, which attaches to a defendant as a sufficient shield until his guilt is established to the satisfaction of the jury, and beyond any reasonable doubt." 9 Ariz. 50, 54, 76 P. 636, 638. Anderson and subsequent decisions consistently held that failure to instruct a jury clearly in accordance with this rule constituted reversible error. See, e.g., Denny, supra.
However, in State v. Hunter our supreme court suggested, for the first time, the requirement is of a constitutional dimension. The Hunter court held that to instruct a jury pursuant to RAJI 4.01 constituted fundamental rather than merely reversible error. Fundamental error has been described as "such error as goes to the foundation of the case, or which takes from a defendant a right essential to his defense." State v. Pulliam, 87 Ariz. 216, 222, 349 P.2d 781, 785 (1960) reversed on other grounds sub. nom. State v. Cobb, 115 Ariz. 484, 566 P.2d 285 (1977); see also, State v. Hunter, supra; State v. Libberton, 141 Ariz. 132, 685 P.2d 1284 (1984); State v. Gamble, 111 Ariz. 25, 523 P.2d 53 (1974). Our supreme court has further described fundamental error as State v. Smith, 114 Ariz. 415, 420, 561 P.2d 739, 744 (1977). (Emphasis added).
The Hunter court held instruction pursuant to RAJI 4.01 constituted fundamental error because the instruction did not clearly advise the jury as to the state's burden of proof on the justification issue. The Hunter court noted RAJI 4.01 could have been interpreted by the jury in a variety of ways when read in conjunction with a general instruction on the state's burden of proof [The jury] might have thought, as the state asserts, that the 'beyond a reasonable doubt' instruction applied to all issues, including the self-defense issue. It might also have thought, however, that the self-defense instruction seemed to place on appellant the burden of proving self-defense and that therefore the specific instruction concerning self-defense was an exception to the general beyond-a-reasonable-doubt instruction. Or the jury might have thought that the beyond-a-reasonable-doubt instruction applied only to the state's 'case against the defendant' and that the wording of the self-defense instruction indicated that the self-defense issue was simply not part of the state's case that the state had to prove.
142 Ariz. 88, 90, 688 P.2d 980, 982.
In holding RAJI 4.01 constituted fundamental rather than merely reversible error, our supreme court relied on its earlier decision in State v. Mincey, 130 Ariz. 389, 398, 636 P.2d 637, 646 (1981), cert. denied, 455 U.S. 1003, 102 S.Ct. 1638, 71 L.Ed.2d 871 (1982), for the proposition that
[i]t is not a defendant's responsibility to introduce reasonable doubt as to an element of a crime. Rather, it is the state's responsibility to prove the element beyond a reasonable doubt.
142 Ariz. 88, 90, 688 P.2d 980, 982. Mincey, in turn, held it fundamental error to give an instruction shifting the burden of proof on the issue of intent to the defendant based on a series of United States Supreme Court decisions including In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); and Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Each of the United States Supreme Court decisions relied upon by the Mincey court holds that as a matter of federal constitutional due process, the state is required to prove every fact necessary to constitute the crime charged beyond a reasonable doubt.
In light of our supreme court's prior decisions regarding the significance of labeling an error "fundamental" and the Hunter court's reliance on Mincey, a decision based on federal constitutional law, we believe Hunter holds as a matter of constitutional due process that the state must prove the absence of justification beyond a reasonable doubt when the defendant introduces evidence sufficient to raise a reasonable doubt as to whether his conduct was justified. Because Hunter established a new constitutional principle, it is a "significant change in the law" requiring application of a retroactivity analysis. 3
"There is no constitutional requirement that a judicial decision announcing new constitutional guidelines be...
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