State v. Ramirez

• Decision Date: 29 July 1997
• Docket Number: CA-CR,No. 1,1
• Citation: 190 Ariz. 65,945 P.2d 376
• Parties: , 249 Ariz. Adv. Rep. 16 STATE of Arizona, Appellee, v. David Patrick RAMIREZ, Appellant. 96-0290.
• Court: Arizona Court of Appeals

Page 376

945 P.2d 376

190 Ariz. 65, 249 Ariz. Adv. Rep. 16

STATE of Arizona, Appellee, v. David Patrick RAMIREZ, Appellant.

No. 1 CA-CR 96-0290.

Court of Appeals of Arizona Division 1, Department A.

July 29, 1997.

Review Granted Oct. 21, 1997.

Review Dismissed as Improvidently Granted Feb. 6, 1998.

Grant Woods, Arizona Attorney General by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section, Joseph T. Maziarz, Assistant Attorney General, Phoenix, for Appellee.

Maricopa County Public Defender by Stephen R. Collins, Deputy Public Defender, Phoenix, for Appellant.

OPINION

NOYES, Presiding Judge.

The jury found Appellant guilty of first degree murder. His defense was that he had acted without premeditation and was therefore guilty of the lesser offense of second degree murder. Because the jury instruction and the State's final argument erroneously implied that premeditation was an instant of time rather than actual reflection, we reverse and remand for new trial.

I.

A young man named David knocked on the door of Appellant's girlfriend's townhouse. Appellant opened the door and greeted David with an aggressive handshake, as if trying to overpower him. The two struggled for a moment, then quit. As they walked into the house, Appellant pressed a gun into David's ribs and said, "I could have took you out already." Nothing more happened between them.

About a month later, Appellant walked out of the townhouse and saw David's brother walking towards him. David and his brother looked alike. Appellant went up to the brother and shook hands with him, and greeted him, and then, for no apparent reason, pulled out a gun and shot him three times, killing him. Appellant paused between the second and third shots. There were several witnesses. As Appellant walked away, he pointed the gun at a girl and said, "Later, Vicki." Appellant said to one witness: "He started it. He deserves it." (The victim had done nothing.) Appellant said to another witness: "He showed me a gun. I gave him a bullet." (The victim had no gun.) By some accounts, Appellant appeared to be under the influence of alcohol and methamphetamine at the time. By all accounts, it was a senseless killing. Whether it was also a premeditated killing was the only contested issue in the trial.

The jury found Appellant guilty of first degree murder. When sentencing Appellant to life in prison (with possible release in 25 years), the trial court stated that, "While all murders are senseless this one appears to the Court to have been particularly senseless in that the defendant didn't even know the victim. The defendant ... impulsively and for no reason pulled out a gun and shot this person."

We have jurisdiction of the appeal pursuant to the Arizona Constitution, article 6, section 9, and Arizona Revised Statutes Annotated ("A.R.S.") sections 12-120.21(A)(1) (1992), 13-4031 (1989), and 13-4033(A) (Supp.1996).

II.

Appellant claims that the jury instruction on premeditation "lessened the State's burden of proving premeditation." We agree. The State claims that the instruction was correct and that Appellant waived any objection by requesting the language about which he complains. We find no waiver. Appellant made numerous efforts to have the jury correctly instructed on premeditation.

To discuss premeditation requires quotation from many sources. The statutory definition is in A.R.S. section 13-1101(1) (1978), which provides:

"Premeditation" means that the defendant acts with either the intention or the knowledge that he will kill another human being, when such intention or knowledge precedes the killing by a length of time to permit reflection. An act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion.

The statute's last sentence, which we will call the "instant effect" sentence, was not given in this case although it was contained as an option in the State's requested instruction, Recommended Arizona Criminal Jury Instruction ("RAJI") 11.051, which provides:

"Premeditation" means that the defendant's intention or knowledge existed before the killing long enough to permit reflection. However, the reflection differs from the intent or knowledge that conduct will cause death. It may be as instantaneous as successive thoughts in the mind, and it may be proven by circumstantial evidence. [It is this period of reflection, regardless of its length, which distinguishes first degree murder from intentional or knowing second degree murder.] [An act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion.]

The "instantaneous as successive thoughts" language in the RAJI instruction is not in the statute; it perhaps came from Moore v. State, 65 Ariz. 70, 75, 174 P.2d 282, 285 (1946), which stated that, "It is said that the deliberation and premeditation may be as instantaneous as successive thoughts of the mind." Unfortunately, it seems to have been forgotten that Moore also cautioned that, "[W]hile the jury may be told that the brain can function rapidly they must not be misled into thinking that an act can at the same time be ... impulsive, unstudied and premeditated." Id. at 82, 174 P.2d at 290. The jury was so misled in Appellant's case. The court's instruction, as mis-argued by the State, essentially told the jury that an act could be both impulsive and premeditated.

The instruction given in Appellant's case was as follows:

"Premeditation" means the defendant's knowledge that he will kill another person existed before the killing long enough to permit reflection. However, the time for reflection must be longer than the time required merely to form the knowledge that conduct will cause death. It may be as instantaneous as successive thoughts in the mind, and it may be proven by circumstantial evidence.

It is this period of reflection, regardless of its length, which distinguishes first degree murder from second degree murder.

This instruction contains two ambiguities which turned into errors when the State mis-argued the law, over objection of Appellant: First, by failing to be clear that premeditation requires actual reflection, the instruction allowed the State to argue that premeditation is just a period of time. Second, because the instruction commented that this period of time can be "instantaneous as successive thoughts in the mind" but provided no balancing language to the effect that an act cannot be both impulsive and premeditated, it allowed the State to argue, in effect, that premeditation is just an instant of time. The State's rebuttal argument on this critical matter of law was as follows:

MR. RUIZ: ... I submit to you that you will receive an instruction on what premeditation means, and that instruction is pretty clear. It doesn't talk about planning. It doesn't talk about a lot of things that were mentioned by the defense. It talks about a sufficient period of time to permit reflection. It doesn't even go on to say, hey, you have to reflect.

MR. TERRIBILE: Objection, Your Honor. That's a misstatement of the law.

MR. RUIZ: That's what the instruction says, Judge.

THE COURT: The objection is overruled. The instructions will be read to the jury, and they're to take the instructions as the law, not the lawyers' characterizations of them.

MR. RUIZ: It says a sufficient period of time to permit reflection and that this period of time must be longer than the amount of time that it would take to form the knowledge that you're going to commit a murder or commit a killing.

....

The instruction says it can be as instantaneous as two thoughts in the mind.

After the arguments, Appellant once again objected to the errors in the State's argument and the court's instruction:

MR. TERRIBILE: Yes. At this time I make a motion for a mistrial. The State took advantage of the instructions and argued to that jury he doesn't have to reflect, just needs the time to reflect, and I think that's an error. I think it was invited by the instructions.

I would ask the Court to grant me a mistrial or send in an instruction that says that it's not enough to have time to reflect. The defendant actually has to take advantage of the time and engage in reflection.

THE COURT: The motion for mistrial is denied.

On appeal, Appellant relies on State v. Guerra, 161 Ariz. 289, 778 P.2d 1185 (1989) and State v. Eastlack, 180 Ariz. 243, 883 P.2d 999 (1994), cert. denied, 514 U.S. 1118, 115 S.Ct. 1978, 131 L.Ed.2d 866 (1995). The instructions in these two cases were no models; the one in Guerra stated:

The time for reflection need not be prolonged and there need be no appreciable space of time between the intention to kill unlawfully and the act of killing.

It may be as instantaneous as the successive thoughts of the human mind, however it must be longer than the time required to form the intent or knowledge that such conduct will cause death.

An act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion.

Guerra, 161 Ariz. at 293-94, 778 P.2d at 1189-90.

Stating that it had "problems" with this instruction, the supreme court found that the "no appreciable space of time" language could mislead a jury by "placing undue emphasis on the rapidity with which premeditation can occur." Id. at 294, 778 P.2d at 1190. The Court stated, "We believe a jury may be misled by an instruction placing undue emphasis on the rapidity with which premeditation can occur." Id. The Court found, however, that reversal was not required because "the remaining portions of the instructions clarified the definition of premeditation." Id. In other words, the conviction was saved by the "instant effect" language which was missing from the instruction in Appellant's case. The instruction in Eastlack was similarly flawed but it, too, was salvaged by the "instant effect" language missing in this case. Eastlack, 180 Ariz. at 259, 883 P.2d at 1015.

We note that the supreme court, in ...