State v. Thomason
| Decision Date | 22 August 1989 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 783 P.2d 809,162 Ariz. 363 |
| Parties | STATE of Arizona, Appellee, v. Larry Vernon THOMASON, Appellant. 11915. |
| Court | Arizona Court of Appeals |
Appellant (defendant) was charged by indictment with one count of first degree murder. Following a jury trial, he was found guilty of second degree murder, as a lesser included offense, and was sentenced to an aggravated term of eighteen years' imprisonment. The sole issue on appeal is whether the trial court erred by refusing to give a jury instruction based on A.R.S. § 13-411. 1 We find no error.
Defendant is a mechanic, inventor, and businessman in the construction industry. He owns a patent on cast-in-place pipe machinery, which forms concrete irrigation pipe as the machine travels along the ditch dug for the pipe. Defendant had several business dealings with Kokosing Construction Co. (Kokosing) and was well-acquainted with Brad Burgett, the manager of Kokosing's western division in Phoenix. At the time of the incident at issue in this case, Kokosing was building a cast-in-place machine, which defendant believed to be an infringement of his patent rights. Acting on this belief, defendant decided to take photographs of Kokosing's machine in order to prove patent infringement. Defendant and the state presented conflicting versions of the events that followed.
The state's evidence showed that on the morning of Saturday, October 26, 1985, several of Kokosing's employees noticed defendant walking around the Phoenix premises taking pictures. Duane Rupp and two other employees were working on the cast-in-place machine. Brad Burgett was in his office next to the machine shop where Rupp and the others were working. One of the employees confronted defendant, who responded "Brad knows I'm here." Burgett then came out of his office and began conversing with defendant inside the shop. What began as a conversation turned into an argument. Defendant drew a gun and shot at Burgett three times, hitting him twice. Burgett fell to the floor, face down. Medical evidence later demonstrated that it was one of these two shots that killed Burgett. Rupp tried to go to Burgett's aid, but defendant pointed the gun at him and ordered him to lie down. While Rupp was down, defendant walked over to where Burgett lay and shot him in the back four more times. Defendant ordered Rupp to stay on the ground, and then he fled the scene. The next day, defendant surrendered himself to a Phoenix police officer.
Defendant's version of these events was substantially different. His defense was a combination of self-defense and insanity. He testified that when he and Burgett began to argue, they were both angry. Defendant stated that Rupp was "lurking" around the shop, keeping an eye on them. At one point, defendant testified, Rupp reached down, picked up a piece of scrap metal, and started walking toward him. Defendant was afraid, so he pulled the gun and ordered Rupp to stop. Burgett and Rupp were glancing at each other and defendant believed that they were about to jump him. Defendant pointed the gun alternately at Burgett, who stood in front of him, and at Rupp, who stood to defendant's left. He was pointing the gun at Rupp, holding him at bay when, believing that Burgett was about to attack him, he turned and pointed the gun at Burgett. Rupp chose that moment to leap at defendant, whereupon the gun went off, shooting Burgett. Defendant did not recall shooting three times. After he fired, defendant once again pointed the gun at Rupp and ordered him to stop. Rupp got down on the floor. Defendant was afraid that the other employees might be waiting in ambush. At that moment, he saw what he described as a "blinding light." After that, he remembered nothing until he "woke up" standing over Burgett's body. He realized that he had shot Burgett again, and he fled.
Two expert witnesses, testifing on behalf of the defendant, stated that he suffered from a preexisting paranoid personality disorder which turned into a brief reactive psychosis at the time of the shooting. Two experts for the state were of the opinion that, although defendant did suffer from a paranoid personality disorder, he was not insane at the time of the shooting and knew the nature and consequences of his act.
The jury received instructions on both self-defense and insanity. Defendant has no quarrel with those instructions. However, he argues that he was also entitled to an instruction on "crime prevention" based upon A.R.S. § 13-411. In that regard, he requested that the court give the following instruction:
A. A person is justified in threatening or using both physical force and deadly physical force against another if and to the exent a reasonable person, in the defendant's situation would believe the physical force or deadly physical force is immediately necessary to prevent the other's commission of aggravated assault under § 13-1204, subsection A, paragraph 1.
B. There is no duty to retreat before threatening or using deadly physical force justified by subsection A of this section.
C. A person is presumed to be acting reasonably for the purposes of this section if he is acting to prevent the commission of aggravated assault.
This instruction is verbatim from § 13-411, except that the enumerated crimes other than aggravated assault have been omitted.
Defendant argued to the trial court that because he was preventing an aggravated assault, which he believed was about to be committed upon him by Burgett and Rupp, the situation fit within the statute. He also argued that the crime prevention instruction differed from self-defense because under the self-defense statutes, A.R.S. §§ 13-404 and 13-405, he could use deadly physical force only to repel deadly physical force, whereas under the crime prevention statute he was permitted to use deadly physical force to prevent an aggravated assault. The prosecutor merely argued that the evidence did not support the applicability of § 13-411. The trial court refused the instruction without comment.
On appeal, defendant continues to argue that the facts of this case fit within § 13-411. Because the jury was not instructed accordingly, he points out that he was deprived of the "no duty to retreat" provision of § 13-411(B) as well as the presumption in § 13-411(C) that one preventing a crime is acting reasonably. In other words, he contends that the self-defense instruction alone was not an adequate or complete statement of the defenses available to him.
The state answers by urging that defendant's requested instruction on crime prevention was adequately covered by the instruction on self-defense. The state does not address the fact that the instruction on self-defense did not include the absence of a duty to retreat or the presumption of reasonableness to which defendant would have been entitled under the crime prevention statute. We do not reach this issue, however, since we affirm the trial court's refusal of the instruction on other grounds. We find that § 13-411 is applicable only to persons protecting the home, its contents, or the residents within. Therefore, given the facts of the case before us, defendant was not entitled to the instruction he sought.
APPLICABILITY OF THE CRIME PREVENTION STATUTE--A.R.S. § 13-411
On its face, § 13-411 seems to conflict with the other sections in Chapter 4 of the criminal code dealing with justification defenses. The other sections provide for the use of nondeadly and deadly physical force in self-defense, §§ 13-404 and -405, defense of a third person, § 13-406, defense of premises, § 13-407, defense of property, § 13-408, and law enforcement, §§ 13-409 and -410. Section 13-411, however, differs somewhat from these other sections. Under § 13-411, the only limitation upon responding with deadly force is the reasonableness of the response. The other justification defenses require an immediate threat to personal safety as a prerequisite to retaliation with deadly force. Section 13-411 is also more permissive in certain situations because not all of the enumerated crimes are inherently life-threatening, e.g., second degree burglary. See Gerber, Criminal Law of Arizona 64-66 (1978). Further, § 13-411(C) provides a presumption of reasonableness which is not available under any of the other justification sections of our criminal code.
It is also apparent, as this case clearly illustrates, that § 13-411 may overlap with the other sections in Chapter 4. One who is preventing the kidnapping of another is also defending a third person; one who is preventing arson or burglary is, at the same time, defending premises; one who is preventing armed robbery is defending both...
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