State v. Slemmer

• Decision Date: 19 December 1991
• Docket Number: No. CR-90-0103-PR,CR-90-0103-PR
• Citation: 170 Ariz. 174,823 P.2d 41
• Parties: STATE of Arizona, Respondent, v. Michael Terry SLEMMER, Petitioner.
• Court: Arizona Supreme Court

Page 41

823 P.2d 41

170 Ariz. 174

STATE of Arizona, Respondent, v. Michael Terry SLEMMER, Petitioner.

No. CR-90-0103-PR.

Supreme Court of Arizona, In Banc.

Dec. 19, 1991.

Reconsideration Denied Feb. 4, 1992. ^*

[170 Ariz. 176] Grant Woods, Atty. Gen. by Ronald L. Crismon, Phoenix, and Dale K. Patton, Jr., Navajo County Atty. by Thomas L. Wing, Holbrook, for respondent.

A. Michael Espino, Navajo County Public Defender by David N. Howarth and Glenn A. Franklin, Holbrook, for petitioner.

OPINION

FELDMAN, Vice Chief Justice.

Michael Terry Slemmer (defendant) filed a petition for post-conviction relief, claiming he was entitled to a new trial because the jury that convicted him of assault with intent to commit murder was incorrectly instructed on the issue of self-defense. The trial court summarily dismissed his petition 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 under the rule of State v. Hunter, 142 Ariz. 88, 688 P.2d 980 (1984), and whether Hunter should apply retroactively to defendant's case. We have jurisdiction under article 6, § 5(3) of the Arizona Constitution and A.R.S. § 12-120.24.

FACTS

Defendant was convicted of assault with intent to commit murder under A.R.S. § 13-248 after a jury trial in 1977. ¹ At trial, he claimed self-defense and requested that the trial court instruct the jury as follows:

If the evidence presented by the Defendant regarding his claim of self defense raises in your minds any reasonable doubt as to whether he was justified in shooting the victim, then you must find the Defendant not guilty.

AUTHORITY: Spence v. Territory, 13 Ariz. 20, 108 P. 227 (1910).

Response to Petition for Post-Conviction Relief, filed Dec. 22, 1987, Exhibit A. The trial court refused the proffered instruction and gave instead the self-defense instruction defendant now challenges, which read:

The defendant has offered evidence that he acted in self-defense. Self-defense requires that you find the defendant not guilty if the following three conditions are met:

(1) The defendant reasonably believed he was in immediate danger of great bodily injury or death; and

(2) The defendant acted solely because of this belief; and

(3) The defendant used no more force than appeared reasonably necessary under the circumstances.

Supplement to Record, filed August 8, 1988. The court also gave the following 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 produce any evidence. The burden of proving the defendant guilty beyond a reasonable doubt rests upon the State. This burden never shifts throughout the trial.

* * * * * *

The charge ... has three essential elements all of which must be proven by the state beyond a reasonable doubt.

Id.

Defendant did not argue on direct appeal that the trial court erred in giving these instructions. The only error raised on direct appeal concerning jury instructions was the trial court's failure to instruct the jury on lesser-included offenses. See State v. Slemmer, No. 1 CA-CR 3000 (Ariz.Ct.App. Oct. 19, 1978) (memorandum decision), at 2. The court of appeals affirmed defendant's conviction. Id. at 6-7.

Ten years later, defendant petitioned for post-conviction relief, claiming he was entitled to a new trial because of the trial court's "[f]ailure to give [an] adequate self-defense instruction under [the] Arizona and Federal constitutions." Petition for Post-Conviction Relief, at 3. Defendant had not previously raised this issue but later did so because he believed there had been "[a] fundamental change in Arizona Constitution[al] Law (Hunter, etc.)." Id. at 4. The trial court denied relief under Rule 32, Ariz.R.Crim.P., 17 A.R.S. (hereinafter Rule ----), holding there had been no significant change in the law pertaining to self-defense. Minute Entry, March 1, 1988.

A divided court of appeals affirmed the denial of post-conviction relief. The court found that our holding in Hunter did not apply to the instructions given in this case. The court stated that "Hunter was not a change in the law" that would allow defendant to attack his conviction collaterally through Rule 32 proceedings. Slemmer, 166 Ariz. at 319, 802 P.2d at 1018. The court also concluded that, even if Hunter applied, the error was harmless in light of the trial court's general burden of proof instruction. Id. at 319-20, 802 P.2d at 1018-19.

In dissent, Judge Voss concluded that the instruction constituted fundamental error under the principle announced in Hunter. He also noted that in another case the court had held that "Hunter represented a significant change in the law, an exception to the general rule of preclusion, thereby allowing [defendant] to seek post conviction relief." Id. at 320, 802 P.2d at 1019 (discussing State v. Garcia, 152 Ariz. 245, 248, 731 P.2d 610, 613 (Ct.App.1986)).

DISCUSSION

A. Application of Hunter

In Hunter, we held that an instruction that misled the jury about the defendant's burden on the issue of self-defense was both reversible and fundamental error. 142 Ariz. at 90, 688 P.2d at 982. In that case, the challenged instruction, former Recommended Arizona Jury Instruction (RAJI) No. 4.01, read:

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

Id. at 89, 688 P.2d at 981. We found that the misleading effect of the instruction was not cured by the general burden of proof instruction, stating that if there was evidence of self-defense, "the burden on the state was then to disprove beyond a reasonable doubt that appellant acted in self-defense." Hunter, 142 Ariz. at 90, 688 P.2d at 982.

Although the challenged instruction did not use the same language as the Hunter instruction, we believe it had the same, if not more, potential for misleading the jury. Like the Hunter instruction, it failed adequately to inform the jury that, if the evidence raised the issue, the state was then required to prove beyond a reasonable doubt that defendant had not acted in self-defense. See State v. Duarte, 165 Ariz. 230, 232, 798 P.2d 368, 370 (1990) (recommending alternate instruction). We therefore reject the court of appeals' conclusion that the present instruction did not constitute fundamental error under Hunter.

Nor do we accept the court of appeals' conclusion that any error was rendered harmless by the general instruction that the state had the burden of proving the charge against defendant beyond a reasonable doubt. First, as in Hunter, the jury could easily have concluded that the state's burden of proving each element beyond a reasonable doubt did not apply to the issue of self-defense. This is especially true in the present case because the instruction stated that "defendant has offered" evidence of self-defense, and that "[s]elf-defense requires" that certain "conditions" relating to a defendant's conduct and mental state "are met." The jury could have believed that, in fact, defendant had the burden of proof because he was the one offering evidence on these "conditions."

Second, we find that the general burden of proof instruction given in this case has even less curative power than the instruction in Hunter. The general instruction in Hunter "provided that the state must prove all of its case against the defendant and must prove the defendant guilty beyond a reasonable doubt." 142 Ariz. at 90, 688 P.2d at 982 (emphasis added). We held that the jury might interpret this instruction as excluding the issue of self-defense from the case against the defendant, thereby eliminating the state's burden of proof beyond a reasonable doubt. In the present case, the court instructed the jury that "the State must prove every part of the charge beyond a reasonable doubt" and that "[t]he charge ... has three essential elements all of which must be proven by [the] State beyond a reasonable doubt." Supplement to Record, filed Aug. 8, 1988 (emphasis added). None of these "essential elements" involved self-defense. Id. Compared with the instruction in Hunter, we believe the jury would be even less likely to think the issue of self-defense was part of the state's charge. The jury could easily deduce that the state's burden of proof, therefore, did not apply to the self-defense issue.

We recently refused to conduct a fundamental error analysis of a Hunter -type instruction given at the defendant's request. State v. Diaz, 168 Ariz. 363, 813 P.2d 728 (1991). We held that by specifically requesting the instruction five years after we had condemned its use in Hunter, defense counsel invited the error and could not profit from it on appeal. Id. at 365, 813 P.2d at 730. We distinguished State v. Tittle, 147 Ariz. 339, 710 P.2d 449 (1985), and Garcia, 152 Ariz. 245, 731 P.2d 610, which applied the doctrine of fundamental error, because the defendants in those cases requested the instruction before we decided Hunter. Diaz, 168 Ariz. at 365-66, 813 P.2d at 730-31.

Unlike Diaz, this is not a case in which a defendant requested an instruction years after its condemnation. Defendant was tried seven years before Hunter was decided. Moreover, defendant did not request the instruction given. Instead, he requested an instruction that is very close to one we have since recommended on self-defense. ² In any event, defendant's proffered instruction was much closer to a correct statement of the law than the instruction given at his trial.

For the foregoing reasons, we conclude that the trial court's self-defense instruction constituted fundamental error under Hunter. We must now determine whether defendant's failure to raise the issue on direct appeal...