State v. Ruelas

• Citation: 165 Ariz. 326,798 P.2d 1335
• Decision Date: 27 February 1990
• Docket Number: CA-CR,No. 1,1
• Parties: STATE of Arizona, Appellee, v. Robert L. RUELAS, Appellant. 88-685.
• Court: Court of Appeals of Arizona

Page 1335

798 P.2d 1335

165 Ariz. 326

STATE of Arizona, Appellee, v. Robert L. RUELAS, Appellant.

No. 1 CA-CR 88-685.

Court of Appeals of Arizona,

Division 1, Department D.

Feb. 27, 1990.

Review Denied in Part and Granted in Part Oct. 5, 1990.

Robert K. Corbin, Atty. Gen. by Jessica G. Funkhouser, Chief Counsel, Crim. Div., Janet Keating, Asst. Atty. Gen., Phoenix, for appellee.

Dean W. Trebesch, Maricopa County Public Defender by Spencer D. Heffel, Deputy Public Defender, Phoenix, for appellant.

BROOKS, Judge.

Following a jury trial, appellant (defendant) was convicted of manslaughter, a dangerous offense, and sentenced to an aggravated term of ten years' imprisonment. On appeal, he raises the following arguments:

(1) the trial court committed fundamental error by failing to give defendant's requested instruction on negligent homicide as a lesser included offense;

(2) the trial court erred by not clearly instructing the jury regarding defendant's limited burden of proof on the issue of self-defense;

(3) the trial court erred by allowing the use of the victim's hearsay statements;

(4) the trial court erred by barring the defense from impeaching defendant's ex-girlfriend with her prior juvenile adjudication; and

(5) the trial court committed error in the selection of the alternate juror.

FACTS

On the day in question, defendant stopped at an ex-girlfriend's home late at night, entering the home without permission. The girl's mother told defendant to leave, and although he did so, he remained outside of the house, seated on the hood of his automobile. When the victim later came out of the ex-girlfriend's home, defendant called him over to where he was sitting and began talking to him. Thereafter, a fight ensued, during which defendant stabbed the victim with a knife, causing an Defendant testified at trial and admitted kicking the victim after he had bent over and lifted up his pant leg. Defendant interpreted the victim's action as an attempt to obtain a knife. Defendant stated that immediately after the kicking incident, he found a knife on the ground and picked it up. He testified that as he was holding the knife, the victim continued to hit him. He then swung at the victim while holding the knife, and the victim fell to the street. Defendant admitted that the victim did not have a weapon when he was stabbed.

[165 Ariz. 328] eight- to ten-inch puncture wound which eventually resulted in the victim's death.

INSTRUCTION ON NEGLIGENT HOMICIDE

Relying on State v. Fisher, 141 Ariz. 227, 686 P.2d 750 (1984), defendant first argues that the trial court erred in refusing to give an instruction on negligent homicide. He contends that the jury might have concluded that he did not consciously disregard the risk that he would cause the victim's death when he swung at him, but that he only failed to perceive that risk, in which case he could only be guilty of negligent homicide. The state argues that there was no evidence to support a jury finding that defendant was unaware that swinging a knife or stabbing the victim created a substantial and unjustifiable risk that his conduct would cause the victim's death.

The trial court instructed the jury on both second-degree murder and manslaughter. It is the trial court's duty to instruct on all grades of homicide that are reasonably supported by the evidence. State v. Ramirez, 116 Ariz. 259, 270, 569 P.2d 201, 212 (1977). In State v. Fisher, the court stated that negligent homicide is generally a lesser included offense of manslaughter. 141 Ariz. at 247, 686 P.2d at 770. Negligent homicide is established where a person fails to perceive a substantial and unjustifiable risk that his or her conduct will cause the death of another person. Id. at 248, 686 P.2d at 771. As noted in Fisher, the element that distinguishes negligent homicide from manslaughter is the actor's "awareness" of the risk occasioned by his or her conduct. The court in Fisher suggested that a negligent homicide instruction should be given when a defendant presents a "credible argument" that his or her failure to perceive a risk was due to something other than "voluntary intoxication." Id. at 248, n. 8, 686 P.2d at 771.

As a general rule, a defendant is only entitled to a lesser included offense instruction if there is evidence from which the jury could convict on the lesser offense and find that the state had failed to prove an element of the greater offense. State v. Conroy, 131 Ariz. 528, 532, 642 P.2d 873, 877 (App.1982). Moreover, the trial court need only give a lesser included offense instruction when the element that distinguishes the two charges is in dispute. Therefore, when the evidence is such that the defendant can only be found guilty of the greater offense, there is no requirement that an instruction on a lesser included offense be given. Id.

Here, the only defense presented at trial was self-defense. From the opening statements by defense counsel to the close of the evidence, the entire tenor of the defense was that defendant had acted out of an instinct for self-preservation. In order to be entitled to an instruction on negligent homicide, the defendant must have presented some evidence that the death of the victim was caused by "criminal negligence." See A.R.S. § 13-1102(A). "Criminal negligence" is defined in A.R.S. section 13-105(6)(d) as follows:

'Criminal negligence' means, with respect to a result ... described by a statute defining an offense, that a person fails to perceive a substantial and unjustifiable risk that the result [death] will occur....

While the negligent homicide statute found in A.R.S. section 13-1102 had no predecessor statute, we note that it has an element in common with the former involuntary manslaughter statute, in that the latter also contemplated an act committed unintentionally rather than intentionally. State v. Prewitt, 104 Ariz. 326, 332, 452 During arguments on the necessity of instructing on negligent homicide in the case at hand, defense counsel argued that the evidence showed that defendant was not aware that the wound had been inflicted or that he was mistaken about his "right to use the knife in defending himself." Counsel's argument appeared to rely on mistake as to the legal right to use deadly force as being sufficient to support a negligent homicide instruction. However, there was no evidence that defendant failed to perceive the risk that if he struck someone with enough force to drive a knife ten inches into his body, death could result. To the contrary, defendant's testimony unequivocally supported the opposite conclusion, i.e., that he was aware of the grave danger presented by the use of a knife because that danger allegedly not only prompted his attack on the victim, but also supported his continued assault on the victim to protect himself from the risk of great bodily harm. Given the complete absence of any evidence suggesting that the mental element of "awareness" of the risk was at issue, it was not error to refuse to instruct on the offense of negligent homicide.

                [165 Ariz. 329] P.2d 500, 506 (1969).  In Prewitt, the evidence showed an intentional act, self-defense, rather than an unintentional act.  The court stated that because involuntary manslaughter contemplated an act committed unintentionally, a refusal to instruct on involuntary manslaughter was not erroneous.  Furthermore, in State v. Foggy, 101 Ariz. 459, 420 P.2d 934 (1966), the court upheld a trial judge's refusal to instruct on involuntary manslaughter where the defendant testified that he purposely shot the victim in self-defense.  The court noted that the intentional use of a deadly weapon was enough to infer an intent to cause serious bodily harm to the victim.  That inference, in addition to the fact that there was no evidence in the record to suggest that the defendant shot the victim other than intentionally, was found to support the trial court's refusal to grant an instruction on involuntary manslaughter.  Finally, in People v. Fink, 194 Colo. 516, 574 P.2d 81 (1978), the court held that criminally negligent homicide was totally inconsistent with defendant's theory of self-defense.  The court stated, "We find it is inherent in the affirmative defense of self-defense that the person not only reasonably believed that his actions were justified, but also that he acted in a reasonable manner."  Id. at 518, 574 P.2d at 83.   The court noted that under the criminally negligent homicide statute, the jury was required to find that the defendant failed to perceive an unjustified risk that a reasonable person would have perceived in the situation
                

INSTRUCTIONS ON SELF-DEFENSE

Defendant next argues that by giving an instruction which was rejected in State v. Hunter, 142 Ariz. 88, 688 P.2d 980 (1984), the trial court improperly instructed the jury on self-defense. He contends that the court did not properly inform the jury that defendant's burden as to self-defense was limited to raising a reasonable doubt.

In Hunter, the court recognized the rule that the state must prove all of its case against a defendant beyond a reasonable doubt. Id. at 89, 688 P.2d at 981. The court also noted that when self-defense was raised, the defendant need not prove that he properly acted in self-defense, but must merely present evidence sufficient to raise a reasonable doubt as to whether his conduct was justified. Once such evidence is presented, the burden is on the state to prove beyond a reasonable doubt that the conduct was not justified. In Hunter, the court dealt with the following instruction:

If you decide the defendant's conduct was justified, you must find the defendant not guilty.

Although the instruction was in accord with Recommended Arizona Jury Instructions Number 4.01, the defendant in Hunter argued that the instruction not only failed to make the state's burden of proof as to justification clear to the jury, but that it actually shifted the burden of proof to ...