State v. Slemmer
| Decision Date | 15 March 1990 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 802 P.2d 1017,166 Ariz. 318 |
| Parties | STATE of Arizona, Respondent, v. Michael Terry SLEMMER, Petitioner. 88-1187-PR. |
| Court | Arizona Court of Appeals |
Dale K. Patton, Jr., Navajo County Atty. by Thomas L. Wing, Chief Prosecutor, Holbrook, for respondent.
David J. Martin, Navajo County Public Defender by David A. Brown, Deputy Public Defender, Holbrook, for petitioner.
Petitioner, who was convicted following a jury trial in 1977 of assault with intent to commit murder, argued in the petition filed in the trial court that an error in the instructions to the jury on self-defense required a new trial. His argument is based on State v. Hunter, 142 Ariz. 88, 89, 688 P.2d 980, 981 (1984), and State v. Garcia, 152 Ariz. 245, 247, 731 P.2d 610, 612 (1987) (). In the Rule 32 (Arizona Rules of Criminal Procedure) proceedings, the state argued that the petitioner was precluded from raising the issue at that time, having had his conviction affirmed on direct appeal (State v. Slemmer, 1 CA-CR 3000, Oct. 19, 1978, Memo.Dec.), and that, in any event, there had been no significant change in the law applicable to the burden of proof placed on the state on the issue of self-defense when raised by a defendant. See Everett v. State, 88 Ariz. 293, 297, 356 P.2d 394, 397 (1960); State v. Garcia, 114 Ariz. 317, 320, 560 P.2d 1224, 1227 (1977). The state also noted that at the time of trial, defense counsel submitted instructions, including two that were refused "as covered," which cited as supporting authority case law that clearly recognized the state's burden of disproving self-defense once the defense is raised by the defendant.
Here petitioner argues that he is entitled to a new trial because of the error in instructing the jury on the burden of proof when self-defense was raised, relying upon State v. Hunter, supra. However, Hunter was based upon the erroneous instruction given to the jury as set forth in former RAJI 4.01. The instruction given in this case was not similar to that condemned in Hunter. During argument on the petition for post-conviction relief, the state reiterated its position that petitioner's case did not deal with a situation like that in Hunter. As the state pointed out, Hunter simply did not apply to the instructions given in this case. Furthermore, the state argued, the law prior to Hunter was settled, i.e., when evidence of self-defense was presented, the state was required to disprove it by proof beyond a reasonable doubt. See State v. Garcia, 114 Ariz. 317, 320, 560 P.2d 1224, 1227 (1977).
Clearly, Hunter was not a change in the law, but simply a recognition that RAJI 4.01 was an improper instruction given to the jury regarding the law in Arizona with respect to the burden of proof on the issue of self-defense. Hunter was a rejection of the instruction and a reaffirmation of the long-standing law in Arizona as previously enunciated in cases such as Everett v. State, 88 Ariz. 293, 356 P.2d 394 (1960); State v. Garcia, supra; State v. Denny, 119 Ariz. 131, 579 P.2d 1101 (1978). The instant case, unlike Hunter, does not present a situation in which a defendant or counsel justifiably relied to his detriment on an instruction formerly approved by the Arizona Supreme Court. As noted by the state in its exhibits attached to the petition for post-conviction relief, the instructions on self-defense were aggressively argued in the trial court as well as in post-trial motions. Given the state of the law existing at the time of trial, it is clear that had counsel at trial or on appeal determined that the instruction actually given was detrimental to the petitioner, the issue could easily have been raised and argued.
Further, a similar issue was raised in State v. Cannon, 157 Ariz. 107, 755 P.2d 412 (1988) and was rejected. In that case, the court noted that the instruction condemned in Hunter had not been given and that the jury was instructed that the prosecution had the burden of proving all of its case beyond a reasonable doubt. Cannon supports the conclusion that the trial court's decision in this case was correct. In a very recent opinion, we reached the same conclusion. See State v. Webb, 164 Ariz. 348, 793 P.2d 105 (App.1990). The RAJI 4.01 instruction was not given the jury in this case.
Finally, even assuming that State v. Hunter, supra, applies to the instruction as the dissent contends, we hold on the basis of the whole record that the error was harmless beyond a reasonable doubt. Our Supreme Court in State v. Jensen, 153 Ariz. 171, 735 P.2d 781 (1978) held that a burden-shifting instruction on malice given the jury by the court constituted harmless error where the trial court repeatedly emphasized to the jury that the state had the burden of proving the charge against the defendant beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The record here shows that the trial judge also instructed the jury three different times that the burden was on the state to prove the charge beyond a reasonable doubt.
This petitioner is not entitled to relief under Hunter and the trial court properly denied relief. Review granted, relief denied.
I respectfully disagree with the majority's conclusions that: 1) post conviction relief is not appropriate in this matter; and 2) the instruction given in this case does not violate State v. Hunter, 142 Ariz. 88, 688 P.2d 980 (1984).
Relying on Hunter, defendant Michael Terry Slemmer (Slemmer) asserts, in a petition for review, that an error in the instructions to the jury on self defense required a new trial on his 1977 conviction for assault with intent to commit murder. The majority found that Hunter is "not a change in the law," therefore post conviction relief is not available.
Contrary to the majority's conclusion, this court has previously addressed this question and found that "[b]ecause Hunter established a new constitutional principle, it is a 'significant change in the law' requiring application of a retroactivity analysis." State v. Garcia, 152 Ariz. 245, 248, 731 P.2d 610, 613 (App.1986). Garcia's convictions were affirmed on appeal in 1982, before Hunter. In 1984 he sought post conviction relief requesting his convictions be set aside in light of Hunter. The trial court dismissed the petition because Garcia failed to raise the issue on direct appeal, and because he failed to timely file his petition. Rule 32.2 Arizona Rules of Criminal Procedure. 1 On appeal, this court reversed, holding that Hunter represented a significant change in the law, an exception to the general rule of preclusion, thereby allowing Garcia to seek post conviction relief. See Rule 32.2(b) 2 and Rule 32.1(g). 3
Here, the facts are very similar to Garcia. Slemmer's conviction was affirmed on appeal in 1978, before Hunter. In 1988 he filed a petition for post conviction relief, arguing that Hunter requires that his conviction be reversed. The trial court denied the petition, finding that "there has been no significant change in the law...." The trial court and the majority ignore Garcia. I would find that the trial court erred by refusing to consider Slemmer's petition.
The majority also concludes that the instruction here is compatible with the requirements of State v. Hunter. The instruction condemned in Hunter was:
If you decide the defendant's conduct was justified, you must find the defendant not guilty.
The supreme court found that giving the instruction was fundamental error, requiring reversal, because the instruction did not make clear to the jury that the burden is on the state to disprove beyond a reasonable doubt that the defendant acted in self-defense. The court stated that the jury could conclude from the instruction that the defendant had the burden of proving self-defense or that the reasonable doubt instruction only applied to the state's case against the defendant, and not to the issue of self-defense. The general burden of proof instruction, given several pages before the self-defense instruction, did not cure the confusion.
The instruction here creates the same confusion denounced in Hunter. The court gave the general burden of proof instruction:
The defendant's plea of 'not guilty' means that the State must prove every part of the charge beyond a reasonable doubt.
... The law does not require a defendant to prove his innocence or to...
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State v. Slemmer, CR-90-0103-PR
...and denied his motion for reconsideration. The court of appeals held that the trial court properly denied relief. State v. Slemmer, 166 Ariz. 318, 802 P.2d 1017 (Ct.App.1990). We granted defendant's petition for review to determine whether the jury instruction constituted fundamental error ......