State v. Gendron

Citation812 P.2d 626,168 Ariz. 153
Decision Date23 May 1991
Docket NumberNo. CR-90-0163-PR,CR-90-0163-PR
PartiesSTATE of Arizona, Appellee, v. Anthony Joseph GENDRON, Appellant.
CourtSupreme Court of Arizona

MOELLER, Justice.


On April 1, 1988, a Department of Public Safety motorcycle officer observed defendant, who was also driving a motorcycle, commit numerous traffic violations. In response to signals from the officer, defendant first stopped as directed, but then sped off. The officer pursued defendant with siren and emergency lights operating. After a confrontation in a motel parking lot, defendant again sped off and the officer again gave chase, this time requesting backup. After a high speed chase involving defendant and three pursuing motorcycle officers, defendant was cornered and arrested. During the chase, defendant's motorcycle had separate collisions with two of the three pursuing motorcycles. Defendant was charged with unlawful flight from a law enforcement vehicle, aggravated assault, and criminal damage.

Based on his alleged fear of the arresting officer, defendant requested jury instructions for the defense of justification on the unlawful flight charge. He did not request similar instructions on the aggravated assault or criminal damage charges. In fact, defense counsel expressly disclaimed reliance on a justification defense on all but the unlawful flight charge, and stated that he would not argue the justification instructions on the other counts even if the instructions were given on the unlawful flight count. The trial court refused the justification instructions on the unlawful flight count. Defendant was convicted on all charges.

The court of appeals held that the trial court's refusal to give the justification instructions on the unlawful flight charge was proper. With respect to the remaining charges, the court correctly noted that defendant had failed to preserve the justification issue for review, and therefore stated: "We are limited to a fundamental error analysis." State v. Gendron, 166 Ariz. 562, 566 n. 3, 804 P.2d 95, 99 n. 3 (App.1990). Then, without further discussion or analysis of the fundamental error doctrine, the court held that the trial court should have given the "requested instructions" sua sponte, even in the face of defendant's disclaimer in the trial court. It is that holding that we review and reverse. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and A.R.S. § 12-120.24.


We granted review on only one issue: "Did the Court of Appeals err in reaching the merits of an issue it found had not been preserved for review?"


Absent a finding of fundamental error, failure to raise an issue at trial, including failure to request a jury instruction, waives the right to raise the issue on appeal. Ariz.R.Crim.P. 21.3(c), 17 A.R.S.; State v. Conner, 163 Ariz. 97, 101-02, 786 P.2d 948, 952-53 (1990); State v. White, 160 Ariz. 24, 31, 770 P.2d 328, 335 (1989); State v. Whittle, 156 Ariz. 405, 407, 752 P.2d 494, 496 (1988); State v. Evans, 125 Ariz. 140, 141-42, 608 P.2d 77, 78-79 (App.1980); see also A.R.S. § 13-3987 and Ariz. Const. art. 6, § 27.

Here, defendant did not request justification instructions from the trial court on the aggravated assault or criminal damage counts. In fact, defendant specifically disclaimed reliance on a justification defense for all counts except the unlawful flight count. For all we know, defendant might have objected had the trial court done what the appeals court now says it was required to do. The court of appeals nevertheless held that the trial court's failure to give justification instructions on the aggravated assault and criminal damage counts was fundamental error. We disagree.

Our adversarial system properly and necessarily precludes injection of new issues on appeal. The reason for this well-recognized rule is simplicity itself--without the rule, the system won't work. In extremely limited circumstances, we recognize that some issues may be so important that overriding considerations concerning the integrity of the system will excuse a party's failure to raise the issue in the trial court. This limited exception is known as the doctrine of "fundamental error." To qualify as "fundamental error," however, the error must be clear, egregious, and curable only via a new trial. We have held:

Fundamental error is error of such dimensions that it cannot be said it is possible for a defendant to have had a fair trial. It usually, if not always, involves the loss of federal constitutional rights. A claim of fundamental error is not a springboard to reversal where present ...

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263 cases
  • State v. West
    • United States
    • Arizona Supreme Court
    • 30 Septiembre 1993
    ... ...         Defendant also raises several additional objections, not raised at trial, concerning jury instructions. Absent fundamental error, these objections are precluded on appeal. Ariz.R.Crim.P. 21.3(c); see also State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627 (1991) ...         First, defendant argues that the trial court erred by not giving an instruction defining "intentionally." Failure to define "intentionally," as used in an instruction, is not fundamental error. State v. Barnett, 142 Ariz. 592, ... ...
  • State v. Henry
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    • 12 Noviembre 1993
    ...was worth $1500 to $2000. Henry's failure to object to the witness' qualifications precludes the issue on appeal. State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627 (1991). In any event, however, based on the witness' experience and training as a mechanic, it was not error to admit his......
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    • United States
    • Arizona Supreme Court
    • 3 Noviembre 1994
    ...defendant of a right essential to his defense." State v. Valles, 162 Ariz. 1, 6, 780 P.2d 1049, 1054 (1989); see also State v. Gendron, 168 Ariz. 153, 812 P.2d 626 (1991); State v. King, 158 Ariz. 419, 763 P.2d 239 (1988). The defendant faults the instruction on four grounds. The first cont......
  • State v. Hyde
    • United States
    • Arizona Supreme Court
    • 9 Julio 1996
    ...Defendant did not object to the instruction at trial. We therefore review the instruction for fundamental error. State v. Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628 (1991). The trial court instructed the jury on reasonable doubt using the Recommended Arizona Jury Instruction (RAJI) Stan......
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