State v. Romero, 033120 AZAPP1, 1 CA-CR 18-0334

Docket Nº:1 CA-CR 18-0334
Opinion Judge:BROWN, JUDGE
Party Name:STATE OF ARIZONA, Appellee, v. JAVIER ROMERO, Appellant.
Attorney:Arizona Attorney General's Office, Phoenix By Terry M. Crist III Counsel for Appellee Michael J. Dew Attorney at Law, Phoenix By Michael J. Dew Counsel for Appellant
Judge Panel:Judge Michael J. Brown delivered the opinion of the Court, in which Presiding Judge Jennifer M. Perkins and Judge Samuel A. Thumma joined.
Case Date:March 31, 2020
Court:Court of Appeals of Arizona
 
FREE EXCERPT

STATE OF ARIZONA, Appellee,

v.

JAVIER ROMERO, Appellant.

No. 1 CA-CR 18-0334

Court of Appeals of Arizona, First Division

March 31, 2020

Appeal from the Superior Court in Maricopa County No. CR 2014-001009-001 The Honorable Peter C. Reinstein, Judge, Retired

Arizona Attorney General's Office, Phoenix By Terry M. Crist III Counsel for Appellee

Michael J. Dew Attorney at Law, Phoenix By Michael J. Dew Counsel for Appellant

Judge Michael J. Brown delivered the opinion of the Court, in which Presiding Judge Jennifer M. Perkins and Judge Samuel A. Thumma joined.

OPINION

BROWN, JUDGE

¶1 Javier Romero appeals from his convictions and sentences for second-degree murder and aggravated assault. He argues the superior court (1) committed fundamental error by failing to provide an additional jury instruction defining legal insanity; (2) improperly precluded testimony addressing the consequences of a guilty except insane ("GEI") verdict; and (3) should have found him GEI as a matter of law. For the following reasons, we affirm.

BACKGROUND

¶2 While Romero was working in a restaurant, he suddenly grabbed a large kitchen knife and repeatedly stabbed a co-worker to death. Romero then moved the victim's body to a nearby room and attempted to clean up the blood. Other employees, including Romero's brother, discovered the body shortly after the stabbing. Security cameras also captured the incident. When Romero's brother saw what had happened, he grabbed Romero and asked him what he had done. Romero did not respond; his brother testified he "looked like a deer in the headlights . . . like he was shocked [at] what he did."

¶3 When police officers arrived, they found Romero waiting in the restaurant with his supervisor, who explained what Romero had done. Romero had a blank expression on his face and did not seem to understand instructions. Noticing extensive cuts on Romero's arms, officers took him to a hospital for treatment. Romero told hospital staff his wounds were self-inflicted. After his wounds were cared for, Romero reached out from his hospital bed and grabbed at a nearby officer's handgun. The officer prevented Romero from obtaining the weapon and restrained him, after which Romero looked at the officer and said, "I don't know why I did that."

¶4 As an affirmative defense, Romero sought to prove he was GEI under A.R.S. § 13-502, which states that "[a] person may be found [GEI] if at the time of the commission of the criminal act the person was afflicted with a mental disease or defect of such severity that the person did not know the criminal act was wrong." At trial, the superior court's preliminary instructions informed the jury that if it found beyond a reasonable doubt that Romero committed the charged offenses, it would then be required to decide whether he proved by clear and convincing evidence he was GEI when the crimes were committed.

¶5 The three medical experts who testified at trial agreed that Romero suffered from schizophrenia but disagreed as to whether Romero knew at the time that his acts were wrong. Dr. James Sullivan, testifying for the defense, opined that Romero did not know his acts were wrong due to a paranoid delusional episode. Dr. Janet Perry, the court-appointed expert, agreed. But the State's expert, Dr. James Seward, offered no definitive conclusion as to whether Romero knew his acts were wrong. Dr. Seward opined that when Romero began stabbing the victim, Romero was likely not aware what he was doing was wrong, but there were signs he became aware what he was doing was wrong in the course of the stabbing. Dr. Seward also stated it was possible that Romero's "behaviors were all some kind of manifestation of his psychotic state rather than being an awareness that the act was wrong."

¶6 The jury found Romero guilty on both counts, rejecting his GEI defense. This timely appeal followed.

DISCUSSION

¶7 Our standard of review of the asserted errors depends on whether Romero objected in the superior court. If he objected and we find error, the State must prove the error was harmless. See State v. Henderson, 210 Ariz. 561, 567, ¶ 18 (2005). Otherwise, we review for fundamental error resulting in prejudice. See State v. Escalante, 245 Ariz. 135, 140, ¶ 12 (2018).

A. Jury Instructions

¶8 Romero argues the superior court erred by giving instructions that misinformed the jury of the elements required to establish GEI under A.R.S. § 13-502(A). We review the propriety of jury instructions de novo. State v. Fierro, 220 Ariz. 337, 338, ¶ 4 (App. 2008). Instructions inform the jury how to apply the law, State v. Noriega, 187 Ariz. 282, 284 (App. 1996), and we will not reverse unless the instructions, taken together, would have misled the jurors, State v. Doerr, 193 Ariz. 56, 65, ¶ 35 (1998). Despite our de novo review of the legal sufficiency of the jury instructions, because Romero did not object at trial to the instructions given, we will reverse only if the court committed fundamental error resulting in prejudice. See Fierro, 220 Ariz. at 340, ¶ 11.

¶9 Romero takes issue with two of the superior court's instructions. The first one paraphrased the standard under A.R.S. § 13-502(A) and quoted the Revised Arizona Jury Instructions ("RAJI") Statutory Criminal 5.02-1 (4th ed. 2018): You must determine from the evidence whether the defendant was [GEI] at the time the crime was committed. A defendant is [GEI] if at the time of the crime the defendant was afflicted with a mental disease or defect of such severity that the defendant did not know the criminal act was wrong.

...

To continue reading

FREE SIGN UP