State v. Zamora, 1 CA-CR 01-0469.

Decision Date18 February 2003
Docket NumberNo. 1 CA-CR 01-0469.,1 CA-CR 01-0469.
Citation204 Ariz. 313,63 P.3d 1050
PartiesSTATE of Arizona, Appellee, v. Robert James ZAMORA, Appellant.
CourtArizona Court of Appeals

Terry Goddard, Arizona Attorney General, By Randall M. Howe, Chief Counsel, Criminal Appeals Section, Joseph T. Maziarz, Phoenix, Assistant Attorney General Attorneys for Appellee.

James J. Haas, Maricopa County Public Defender By Stephen R. Collins, Deputy Public Defender, Phoenix, Attorneys for Appellant.



¶ 1 We are again called upon to address whether the statutory definition of premeditation has been constitutionally applied in a first-degree murder trial. We find neither constitutional error nor any other reversible error. We therefore affirm Robert James Zamora's conviction and sentence for the first degree murder of Roman Figueroa.

¶ 2 Zamora's counsel filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that he had searched the record and found no arguable question of law and asking this court to search the record for fundamental error. See Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). Zamora raised, through counsel, the following issues: insufficiency of the evidence to support a first degree murder conviction and ineffective assistance of trial counsel in failing to raise a defense of temporary insanity.1

¶ 3 Following our initial review, we ordered additional briefing on these premeditation issues: whether any reversible error resulted from the jury instruction defining premeditated murder, in light of State v. Thompson, 201 Ariz. 273, 34 P.3d 382 (App.2001)(review granted April 23, 2002); whether the legislature could differentiate between first and second degree murder solely based on the passage of time without requiring an act, omission, or mental state; and whether the premeditation instruction, which was based on an Arizona statute, was too confusing or contradictory to permit meaningful resolution of the question of premeditation. We have reviewed the record and considered the supplemental briefing from the parties. For the following reasons, we affirm.


¶ 4 We view the facts and all reasonable inferences therefrom in the light most favorable to upholding the jury verdict. State v. Powers, 200 Ariz. 123, 124, ¶ 2, 23 P.3d 668, 669 (App.2001). Roman Figueroa was killed in his apartment. In addition to Roman, those present included Roman's girlfriend, Zamora, Zamora's son, and two other friends of Roman's. Some of them had been drinking. Roman and his friends were criticizing an acquaintance whose first name is Robert. The remarks about Robert included that he "was staying in a[n] abandoned apartment, that he was a bum. He was better off in jail. Stuff like that." Zamora, whose first name is also Robert, got up, closed and locked the front door, and went over to Roman and asked, "Do you know me?" and "What's my name?" In response, Roman told "Bobby" to "kickback and relax" and "stop tripping." Zamora then began stabbing Roman with a steak knife. As Roman yelled for him to stop, Roman's friends fled the apartment and Roman's girlfriend fled to the bedroom to call 9-1-1.

¶ 5 During the five-minute 9-1-1 call, Roman's girlfriend reported that it "was quiet for a while" and then she again heard "rumbling in the dining area and Roman screaming."2 Two neighbors who lived above Roman testified that they heard him scream: "Oh, God, no" and "Why did you do that?" The noise then stopped for "a minute or two" and started again. Police arrived within minutes and arrested Zamora. Paramedics began treating Roman, but he died soon after. The medical examiner testified that death resulted from blood loss caused by forty-four mostly superficial wounds and that Roman's condition may have been aggravated by his liver's inability to produce blood clotting factors.

¶ 6 At the conclusion of the evidence, the court instructed the jury that first-degree murder required proof that Zamora acted with "premeditation." The jury found Zamora guilty of first degree murder and he was sentenced to prison for the rest of his natural life.


¶ 7 Zamora did not deny that he killed Roman. He conceded guilt for second-degree murder. But he was charged with premeditated first-degree murder. Thus, the only issue at trial was whether the killing was "premeditated" as defined under Arizona law. Zamora argues that the Arizona statute defining premeditation and the jury instruction based upon the statute is unconstitutionally void for vagueness because it provides no meaningful distinction between first- and second-degree murder.

¶ 8 Arizona Revised Statutes ("A.R.S.") section 13-1101(1) (2001) provides that

"Premeditation" means that the defendant acts with either the intention or the knowledge that he will kill another human being, when such intention or knowledge precedes the killing by any length of time to permit reflection. Proof of actual reflection is not required, but an act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion.

(Emphasis added). The italicized language was added in 1998. 1998 Ariz. Sess. Laws, ch. 389 § 6.

¶ 9 Similarly, the court instructed the jury that premeditation

means that the defendant acted with either the intention or the knowledge that he would kill another human being, when such intention or knowledge preceded the killing by any length of time to permit reflection. However, the reflection differs from the intent or knowledge that the conduct would cause death. Proof of actual reflection is not required, but an act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion. It is this period of reflection, regardless of its length, which distinguishes first degree murder from intentional or knowing second degree murder.

(Emphasis added). The first and third sentences of the court's instruction track the language of § 13-1101(1).

¶ 10 Prior to the 1998 amendment to § 13-1101(1), Division One of this court held that premeditation required actual reflection. State v. Ramirez, 190 Ariz. 65, 70, 945 P.2d 376, 381 (App.1997). Division Two of this court disagreed, concluding that premeditation does not require actual reflection. State v. Haley, 194 Ariz. 123, 125-26, ¶ 10, 978 P.2d 100, 102-03 (App.1998)(interpreting the version of § 13-1101(1) in effect prior to the 1998 amendment). The legislature then amended the definition of premeditation in 1998 by adding the words "Proof of actual reflection is not required." 1998 Ariz. Sess. Laws, ch. 289 § 6. These additional words make it clear that the State need not prove actual reflection. Instead, the State need only prove that the defendant's intent to kill or knowledge that he or she will kill another person preceded the killing "by any length of time to permit reflection."3 Ariz.Rev.Stat. ("A.R.S.") § 13-1101(1) (2001).

First And Second Degree Murder Can Be Differentiated Solely Based On The Passage Of Time

¶ 11 Zamora argues that by eliminating any requirement of actual reflection and by defining premeditation solely as a period of time, the distinction between first- and second-degree murder is so minimal as to be unconstitutionally vague. We disagree. This argument was rejected by this court in Thompson, which held that the statute is not unconstitutionally vague on its face. "[A] fair reading of the statute, combined with a common-sense consideration of how jurors perform their function, demonstrates that the time period employed by the statute to describe premeditation has enough substance to provide a workable method for distinguishing between degrees of murder." Thompson, 201 Ariz. at 278, ¶ 16, 34 P.3d at 387. The definition provides "an adequate benchmark to permit jurors to non-arbitrarily distinguish between first- and second-degree murder in each case." Id. at 279, ¶ 21, 34 P.3d at 388.

¶ 12 The Thompson court, however, did find the statute unconstitutionally vague as applied because our supreme court, in cases such as State v. Hutton, 143 Ariz. 386, 389, 694 P.2d 216, 219 (1985), had interpreted this length of time to be "as instantaneous as the time it takes to make successive thoughts to kill." Thompson, 201 Ariz. at 280, ¶ 25, 34 P.3d at 389. Thompson held that if "nothing more than an instant of time ... [divides] first- and second-degree murder, and there is nothing whatsoever that a jury must find has happened during this instant in order to find premeditation, it simply cannot be said that this provides `a sufficiently ascertainable standard of guilt.'" Id. at 281, ¶ 27, 34 P.3d at 390 (quoting Herndon v. Lowry, 301 U.S. 242, 261, 57 S.Ct. 732, 81 L.Ed. 1066 (1937)).

¶ 13 Nevertheless, the Thompson court affirmed Thompson's first-degree murder conviction because the trial court had not instructed the jury using the "instantaneous thoughts" language, the prosecutor had not argued that an "instant" was sufficient time to permit reflection, and any error was harmless under the circumstances of that case. 201 Ariz. at 281, 283, ¶¶ 33, 41, 34 P.3d at 390, 392. Ten minutes elapsed between defendant's arrival in the neighborhood and when he was seen dragging the victim into her house. Id. at 282, ¶ 39, 34 P.3d at 391. "Shortly thereafter" there was a 9-1-1 call during which nine seconds separated the first and third gunshots, and eighteen more seconds elapsed before the fourth shot; and a woman's scream was heard between the third and fourth shots. Id. The court found that the time between arrival in the neighborhood and the several shots "clearly qualifie[d] as a sufficient time to permit reflection." Id. at 283, ¶ 40, 34 P.3d at 392.4

¶ 14 Zamora argues that the Thompson court erred in holding that the legislature could constitutionally define premeditation as...

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1 cases
  • State v. Thompson
    • United States
    • Arizona Supreme Court
    • March 12, 2003
    ..."on the ticking of a clock, and not on any differential act, omission, or accompanying mental state." State v. Zamora, 204 Ariz. 313, 63 P.3d 1050, 1058 (App.2003) (Fidel, J., dissenting). An offense so defined does not "give fair warning" whether conduct will be punished as first degree mu......

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