Court of Appeals of Arizona, Second Division, Department A
Not for Publication Rule 111, Rules of the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR20113324001 Honorable Howard Hantman, Judge.
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and Jonathan Bass Attorneys for Appellee.
Nicole Farnum Phoenix Attorney for Appellant.
GARYE L. VÁSQUEZ, Presiding Judge.
¶1 After a jury trial, David Gomez was convicted of first-degree murder. The trial court sentenced him to life imprisonment with the possibility of release after twenty-five years. On appeal, Gomez argues the court erred by failing to instruct the jury on the state's burden of proof for his justification defenses and by denying his motion for a mistrial based on a witness's testimony that he previously had been incarcerated. For the reasons that follow, we vacate the criminal restitution order but otherwise affirm Gomez's conviction and sentence.
Factual Background and Procedural History
¶2 We view the facts in the light most favorable to sustaining Gomez's conviction. See State v. Miles, 211 Ariz. 475, ¶ 2, 123 P.3d 669, 670 (App. 2005). In early September 2011, R.R. was asked to leave an "after-party" at R.G.'s house because R.G.'s mother didn't "feel safe when [he was] around." According to a witness, R.R. was angry, but he complied. About a week later, R.R. approached R.G. outside a Tucson nightclub. The two had a verbal altercation, and R.R. shot R.G. in the stomach. When R.R. turned and started to walk away, Gomez, who had been standing nearby, shot R.R. R.R. fell to the ground, and Gomez went inside the club. When Gomez came back outside a few moments later, he picked up R.R.'s gun and shot R.R. twice more near his chin, killing him.
¶3 Gomez was charged with first-degree murder. At trial, Gomez argued his actions were justified because he had been acting in self-defense or in defense of a third party. The jury found Gomez guilty, and the trial court sentenced him as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Discussion Jury Instructions
¶4 Gomez argues the trial court erred by failing to instruct the jury on the state's burden of proof for his justification defenses. Because Gomez did not object to the instructions provided, we review for fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005). To prevail under this standard, Gomez must show both fundamental error and prejudice. Id. ¶ 20. Fundamental error is "error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial." State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). To prove prejudice, Gomez must show that, absent the error, a reasonable jury could have reached a different result. See Henderson, 210 Ariz. 561, ¶ 27, 115 P.3d at 609.
¶5 "Justification defenses describe conduct that, if not justified, would constitute an offense but, if justified, does not constitute criminal or wrongful conduct." A.R.S. § 13-205(A). A defendant need only present the "slightest evidence" that his conduct was justified to be entitled to a justification instruction. State v. Lujan, 136 Ariz. 102, 104, 664 P.2d 646, 648 (1983). If a defendant presents evidence that his conduct was justified, "the state must prove beyond a reasonable doubt that the defendant did not act with justification." § 13-205(A). The justification defenses include self-defense and defense of a third person. A.R.S. §§ 13-404, 13-406.
¶6 In Hunter, our supreme court held the trial court's failure to instruct the jury on the burden of proof for the defendant's self-defense claim constituted fundamental error in that case. 142 Ariz. at 90, 688 P.2d at 982. The self-defense law then was similar to the current § 13-205(A) and placed the burden of proof on the state. Hunter, 142 Ariz. at 89, 688 P.2d at 981. The trial court instructed the jury that the state must prove its case beyond a reasonable doubt and that "[i]f you decide the defendant's conduct was justified, you must find the defendant not guilty." Id. But, because the trial court failed to specify the state's burden with respect to self-defense, our supreme court noted the instructions could have misled the jury into thinking the defendant bore the burden of proof Id. at 90, 688 P.2d at 982. Accordingly, the Hunter court concluded that the failure to specifically instruct on the burden of proof for self-defense constituted fundamental error and remanded the case for a new trial. Id
¶7 The trial court similarly erred in this case. Although the court instructed the jury on the state's burden of proof generally and the elements of the justification defenses, the court did not instruct the jurors specifically on the state's burden of proof with regard to those defenses. As Gomez points out, and the state concedes, the court failed to instruct the jury that the state has the burden of proving beyond a reasonable doubt that the defendant did not act with justification and that, if the state failed to carry that burden, the jury must find the defendant not ...