State v. Jackson, 6451-PR

• Decision Date: 25 February 1985
• Docket Number: No. 6451-PR,6451-PR
• Citation: State v. Jackson, 695 P.2d 742, 144 Ariz. 53 (Ariz. 1985)
• Parties: STATE of Arizona, Appellee, v. Robert JACKSON, Appellant.
• Court: Arizona Supreme Court

Page 742

695 P.2d 742

144 Ariz. 53

STATE of Arizona, Appellee, v.Robert JACKSON, Appellant.

No. 6451-PR.

Supreme Court of Arizona In Banc.

Feb. 25, 1985.

Robert K. Corbin, Atty. Gen. by William J. Schafer, III and Jack Roberts, Asst. Attys.Gen., Phoenix, for appellee.

Storrs & Storrs by Robert L. Storrs, Phoenix, for appellant.

CAMERON, Justice.

We granted defendant's petition for review of a memorandum decision of the Court of Appeals, Division One, to answer only one question: whether it is error in a criminal case to fail to instruct the jury on reasonable doubt following closing arguments, when the jury has been previously instructed prior to the taking of evidence.

Defendant was charged with burglary and theft with one prior conviction.After the jury was selected and sworn, the trial judge gave preliminary instructions to the jury including an instruction on reasonable doubt.At the close of evidence, even though requested by the defendant, the trial judge ruled that because she had previously instructed the jury on basic matters of law including reasonable doubt, she would not repeat that instruction.Instead she gave only those additional instructions not previously given.

Counsel for the defendant in closing argument referred extensively to the reasonable doubt instruction previously given.The matter was then submitted to the jury.All instructions, both those given prior to the taking of evidence and those given prior to submission, were reduced to writing and given to the jury together with the forms of verdict.The jury took the instructions into the jury room for reference during their deliberation.

Citing State v. McVay, 127 Ariz. 450, 622 P.2d 9(1980), the Court of Appeals held that it was error not to reinstruct the jury on the State's burden of proof but that the matter was not reversible error.As the Court of Appeals pointed out:

In this case, we note that the trial lasted less than a day and a half, the jurors were correctly instructed on the state's burden of proof at the beginning of trial, were reminded of that burden during defense counsel's closing argument, were provided with written copies of all the instructions, including the reasonable doubt instruction, and were advised to consider all of them when deliberating on the issue of appellant's guilt or innocence.Although it is error to fail to reinstruct the jury on the state's burden of proof at the close of the evidence, under all of the facts of this case and the holdings in Kinkade and Jackson, we conclude that the error is not fundamental and does not require reversal.

We agree with the decision of the Court of Appeals.Their decision was a memorandum decision pursuant to Rule 28, Arizona Rules of Civil Appellate Procedure, 17A A.R.S., and as such was unpublished.We granted the petition for review to reaffirm in a published opinion, for the guidance of all judges in the state, our position that certain basic instructions, including a reasonable doubt instruction, must be given by the court following closing arguments even though the jury had been previously instructed prior to the receipt of evidence.

There is nothing wrong with instructing the jurors as to reasonable doubt or other basic legal principles for their guidance prior to the receipt of evidence.Indeed, Rule 18.6(c) provides "[i]mmediately after the jury is sworn, the court shall instruct the jury concerning its duties, its conduct, the order of proceedings, and the elementary legal principles that will govern the proceeding."Rules of Criminal Procedure, 17 A.R.S.An instruction on burden of proof prior to the receipt of evidence can be helpful to the jury and is not to be discouraged.

However, closing jury instructions may not be dispensed with simply because they have been given prior to the receipt of evidence.Our rules provide first:

a. Order of Proceedings.The trial court shall proceed in the following order unless otherwise directed by the court:

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(7)The parties may present arguments, the prosecutor having the opening and closing.

(8) The judge shall then charge the jury.

Rule 19.1,Arizona Rules of Criminal Procedure, 17 A.R.S. Second:

"[a]t the close of the evidence or at such earlier time as the court directs, couns...