State of Arizona v. James Murray Reaves, III

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

THE STATE OF ARIZONA,
Appellee,

v.

JAMES MURRAY REAVES III,
Appellant.

No. 2 CA-CR 2019-0253
Filed February 16, 2022

Appeal from the Superior Court in Pima County
No. CR20170282001
The Honorable Howard Fell, Judge Pro Tempore

REMANDED IN PART; AFFIRMED IN PART

COUNSEL

Mark Brnovich, Arizona Attorney General
Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals
By Karen Moody, Assistant Attorney General, Tucson
Counsel for Appellee

James Fullin, Pima County Legal Defender
By Alex Heveri, Assistant Legal Defender, Tucson
Counsel for Appellant
 STATE v. REAVES
Opinion of the Court

OPINION

Presiding Judge Eckerstrom authored the opinion of the Court, in which
Chief Judge Vásquez and Judge Espinosa concurred.

E C K E R S T R O M, Presiding Judge:

James Reaves III appeals from his convictions and sentences
for first-degree murder, first-degree burglary, and aggravated assault. He
argues the trial court erred in denying his challenge to the state’s
peremptory strike, brought pursuant to Batson v. Kentucky, 476 U.S. 79
(1986), that it made multiple errors in its jury instructions, and that it
incorrectly precluded evidence that he suffers from post-traumatic stress
disorder. Because we agree the court erred in fulfilling the constitutional
obligations set forth by Batson and its progeny, we remand for the court to
make findings consistent with this opinion. We otherwise affirm Reaves’s
convictions and sentences.

Factual and Procedural Background

We view the facts in the light most favorable to sustaining the
jury’s verdicts and resolve all inferences against Reaves. See State v. Felix,
237 Ariz. 280, ¶ 30 (App. 2015). Reaves was involved in a romantic
relationship with A.T. for a number of years. Beginning in December 2015,
he lived with A.T. in a house she shared with her grandmother. In late
December 2016, A.T. and Reaves argued, and he was asked to move out of
the house. Within two days, Reaves removed his belongings and returned
one of the two keys he possessed to the residence. Until the date of the
incident, he lived out of his truck.

One evening in early January 2017, Reaves let himself into the
house when A.T. was not home and watched television for a while. He then
took a nap in his vehicle, which was parked in the driveway. A.T. and a
male friend, D.P., arrived at the house. After D.P. went inside, Reaves had
a brief conversation with A.T., telling her that D.P.—whom Reaves did not
trust—needed to leave and, at minimum, should not be allowed to stay in
A.T.’s bedroom. Reaves later looked into the house’s windows and saw
A.T. and D.P. together in her bedroom.

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Opinion of the Court

Reaves then drove to a gas station, where he told the
attendant he was angry because he had caught his girlfriend cheating and
wanted to damage her car. Reaves showed the attendant a metal bar he
planned to take with him in case “the guy” tried to “come at him.” Reaves
continued to text and call A.T. about her relationship with D.P. During one
call, Reaves angrily asked A.T. if she and D.P. had just had sex, and she
answered in the affirmative. Reaves then screamed at A.T. that she had
“better start saying [her] goodbyes” because he was returning to the house
and would kill D.P. if he was still there.

Shortly afterward, Reaves arrived at A.T.’s house. He let
himself in, visibly “[v]ery upset,” repeated that he was going to kill D.P.,
and exchanged the metal bar for knives from the kitchen, which he held in
both hands. He entered the bedroom, told D.P. to get out, and D.P. refused.
D.P. then approached Reaves—smirking according to Reaves—and
extended his hand, as if for a handshake. Reaves ducked below D.P.’s hand
and stabbed him seventeen times. He also cut A.T.’s arm when she
attempted to intervene. D.P. died from his injuries.

Reaves left the house and returned to the gas station, where
he told the attendant he had stabbed a man. He washed his hands and
changed out of his bloodied shirt, which he threw in a dumpster before
looking up and smiling into a security camera. An acquaintance drove him
out of town, where he remained for several days. During the drive, Reaves
texted his father, including sending a link to the penalties associated with
first-degree murder in Arizona. He also texted two other people, stating he
had killed someone. Reaves later testified that he had planned to kill
himself, and in preparation he recorded a video on his cell phone in which
he admitted to killing D.P. But Reaves ultimately turned himself in to
police.

After a seven-day trial, Reaves was convicted of first-degree
murder, first-degree burglary, and aggravated assault, and he was
sentenced to natural life in prison, plus 7.5 years. This appeal followed. We
have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and
13-4033(A).

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 STATE v. REAVES
Opinion of the Court

Batson Challenge1

The Equal Protection Clause of the Fourteenth Amendment to
the United States Constitution provides that no state shall “deny to any
person within its jurisdiction the equal protection of the laws.” In the
context of jury trials, this clause ensures that each individual venireperson
carries “the right not to be excluded from [a jury] on account of race.”
Powers v. Ohio, 499 U.S. 400, 409 (1991). It protects a core exercise of
democratic participation, because “[o]ther than voting, serving on a jury is
the most substantial opportunity that most citizens have to participate in
the democratic process.” Flowers v. Mississippi, 139 S. Ct. 2228, 2238 (2019).
Therefore, “[e]xclusion of [B]lack citizens from service as jurors constitutes
a primary example of the evil the Fourteenth Amendment was designed to
cure.” Batson, 476 U.S. at 85. In short, “[t]he Constitution forbids striking
even a single prospective juror for a discriminatory purpose.” Flowers, 139
S. Ct. at 2244.

Since Batson, federal law has “vigorously enforced and
reinforced the decision, and guarded against any backsliding,” Flowers, 139
S. Ct. at 2243, recognizing that “[e]qual justice under law requires a criminal
trial free of racial discrimination in the jury selection process,” id. at 2242.
“[T]rial judges possess the primary responsibility to enforce Batson and
prevent racial discrimination from seeping into the jury selection process.”
Id. at 2243.

Reaves is Caucasian. His jury pool included two mental
health professionals. One, J.F., is Black and holds a PhD in clinical
psychology. The other, A.S., is Caucasian, holds a master’s degree, and
works as a licensed therapist. Each agreed that her professional experiences
would not hinder her ability to be fair and impartial. After the state
peremptorily struck J.F., Reaves raised a challenge under Batson. The
following exchange ensued:

Court: All right. So there’s a prima facie showing.
[State]?

[State]: Your Honor, the reason that we struck [J.F.]—

1Effective January 1, 2022, our state supreme court eliminated
peremptory challenges from criminal and civil jury selection procedures.
Ariz. Sup. Ct. Order R-21-0020 (Aug. 30, 2021).

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Opinion of the Court

Court: Because she’s a clinical psychologist?

[State]: —because she’s a clinical psychologist.

[Defendant]: But the State kept [A.S.], who is a therapist.

Court: Okay. All right. The court finds that the reason
for striking Ms. [J.F.] is race neutral, gender
neutral, and that there hasn’t been a sufficient
showing that it was done for any reason that
would be—that would prejudice Mr. Reaves.

[Defendant]: I believe she referred to herself as a doctor.

Court: Yes, I remember that, which I thought was
amusing. As I said there’s been no purposeful
discrimination, so the Batson challenge is
denied.

The state did not strike A.S., and she served as a juror.

We will uphold the denial of a Batson challenge absent clear
error. Snyder v. Louisiana, 552 U.S. 472, 477 (2008). We review issues of law
de novo. State v. Ross, 250 Ariz. 629, ¶ 16 (App. 2021). A trial court’s Batson
ruling generally turns “on evaluation of credibility,” either counsel’s
credibility in articulating a non-racial motive for the strike or the
prospective juror’s demeanor and asserted ability to serve in a non-biased
manner. Batson, 476 U.S. at 98 n.21; see also Purkett v. Elem, 514 U.S. 765, 769
(1995); State v. Porter, 251 Ariz. 293, ¶ 11 (2021). Because this analysis “is
fact intensive,” generally “the trial court is in a better position to assess”
credibility than is an appellate court. State v. Newell, 212 Ariz. 389, ¶ 54
(2006). We therefore “afford great deference to trial court findings in this
context.” Porter, 251 Ariz. 293, ¶ 6; see also Flowers, 139 S. Ct. at 2244.

However, “[d]eference does not by definition preclude
relief.” Miller-El v. Dretke (Miller-El), 545 U.S. 231, 240 (2005) (alteration in
Miller-El) (applying doubly-deferential standard for reviewing Batson
challenges in federal habeas proceedings) (quoting Miller-El v. Cockrell
(Miller-El I), 537 U.S. 322, 340 (2003) (“deference does not imply
abandonment or abdication of judicial review”)); see also Snyder, 552 U.S. at
478-79 (finding clear error “even under the highly deferential standard of
review” applicable to Batson rulings when “trial judge simply allowed the
[strike] without explanation”). Rather, to protect the basic principles
outlined in Batson and its progeny, we must go beyond a cursory review;

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Opinion of the Court

we must consider “all of the circumstances that bear upon the issue of racial
animosity.” Snyder, 552 U.S. at 478.

A Batson challenge initiates a three-step process. Johnson v.
California, 545 U.S. 162, 168 (2005); Newell, 212 Ariz. 389, ¶ 53. First, the
defendant must make a prima facie case that the strike was racially
discriminatory. Purkett, 514 U.S. at 767; Newell, 212 Ariz. 389, ¶ 53. If a
prima facie case is made, “the State must provide race-neutral reasons for
its peremptory strikes.” Flowers, 139 S. Ct. at 2241. The explanation need
not be persuasive or plausible; it must only be facially race-neutral. Purkett,
514 U.S. at 768. “[T]he trial court must then decide (step three) whether the
opponent of the strike has proved purposeful racial discrimination.” Id. at
767. At this step, the court “must determine whether the prosecutor’s stated
reasons were the actual reasons or instead were a pretext for
discrimination.” Flowers, 139 S. Ct. at 2241. To make this determination,
“Batson ‘requires the judge to assess the plausibility of [the explanation
offered for a challenged strike] . . . in light of all evidence with a bearing on
it.’” Ross, 250 Ariz. 629, ¶ 22 (alterations and emphasis in Ross) (quoting
Miller-El, 545 U.S. at 251-52). The opponent of the strike bears the burden
of persuasion to sustain a Batson challenge. Id. ¶ 17.

For the purposes of this appeal, we are concerned with
whether the trial court satisfied the third step of the Batson analysis. Reaves
argues the trial court erred when it allowed the state to peremptorily strike
“the only African American on the juror panel.” In particular, he argues
the court erred by “abandon[ing] the inquiry” before considering whether
the strike was racially motivated. We agree that under the totality of the
circumstances provided in the record before us, the court did not display a
deliberative process “designed to produce actual answers to suspicions and
inferences that discrimination may have infected” jury selection. Johnson,
545 U.S. at 172. We so conclude based on several features of that terse
record: (1) the trial court, rather than the prosecutor, first provided the
non-discriminatory basis for the strike; (2) the court conducted no further
inquiry and sought no further explanation after the defendant observed
that the basis applied equally to a similarly situated Caucasian juror who
was not struck; (3) the court did not address the juror comparison problem
as to the non-discriminatory basis it had itself provided; and (4) the court
concluded that inquiry with a gratuitous off-hand remark at the expense of
the stricken juror.

In determining whether the state has purposefully
discriminated on the basis of race, “the court may consider the prosecutor’s
demeanor, the juror’s demeanor, the reasonableness or improbability of the

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Opinion of the Court

explanations, and whether the proffered rationale has some basis in
accepted trial strategy.” Porter, 251 Ariz. 293, ¶ 11. In addition, the court
may consider available factors including, as relevant here, “side-by-side
comparisons of” stricken and non-stricken prospective jurors of different
races and any “other relevant circumstances that bear upon the issue of
racial discrimination.” Flowers, 139 S. Ct. at 2243. This analysis is not pro
forma; the “Batson framework is designed to produce actual answers to
suspicions and inferences that discrimination may have infected the jury
selection process.” Johnson, 545 U.S. at 172.

If “the reasons provided by the State are clearly pretextual,”
the strike cannot stand. State v. Smith, 250 Ariz. 69, ¶ 67 (2020) (quoting
State v. Roque, 213 Ariz. 193, ¶ 15 (2006)). For instance, “[i]f a prosecutor’s
proffered reason for striking a [B]lack panelist applies just as well to an
otherwise-similar non-[B]lack who is permitted to serve, that is evidence
tending to prove purposeful discrimination to be considered at Batson’s
third step.” Miller-El, 545 U.S. at 241 (describing “side-by-side
comparisons” of potential jurors as “[m]ore powerful” than “bare
statistics”); see also Foster v. Chatman, 578 U.S. 488, 512 (2016) (venireperson
comparison alone presented “compelling” evidence of purposeful
discrimination). “The comparison can suggest that the prosecutor’s
proffered explanations for striking [B]lack prospective jurors were a pretext
for discrimination.” Flowers, 139 S. Ct. at 2248.

Although defendants have repeatedly asked our state’s
appellate courts to conduct comparisons of similarly situated prospective
jurors when reviewing a Batson ruling, we are aware of no prior reported
case in which a defendant properly preserved that claim for review. See,
e.g., Porter, 251 Ariz. 293, ¶¶ 20-22 (finding waiver because defendant’s
failure to raise issue below “deprived the prosecutor of the opportunity to
distinguish allegedly similarly situated jurors and divested the trial court
of the occasion to conduct an in-depth comparison of the jurors”); Smith,
250 Ariz. 69, ¶ 71 (refusing to conduct comparative analysis because
defendant “did not raise the issue in the trial court” and therefore waived
it); State v. Medina, 232 Ariz. 391, ¶¶ 48-49 (2013) (appellate court not
required to conduct comparative juror analysis on “cold appellate record,”
particularly when issue not raised at trial). Because Reaves preserved the
issue by expressly drawing the comparison between J.F. and A.S. to the trial
court’s attention, we address the issue.

We conclude Reaves raised sufficient evidence the state’s
strike was infected by purposeful discrimination to trigger the trial court’s
duty to make a meaningful inquiry into the motive underlying the strike.

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Opinion of the Court

See Purkett, 514 U.S. at 768 (“ultimate burden of persuasion regarding racial
motivation rests with, and never shifts from, the opponent of the strike”).
Reaves’s jury pool included two mental health professionals, similarly but
not identically situated, as one was a clinical psychologist with a PhD and
the other was a therapist with a master’s degree. See Flowers, 139 S. Ct. at
2249 (defendant “not required to identify an identical white juror for the
side-by-side comparison to be suggestive of discriminatory intent”); see also
United States v. Alvarez-Ulloa, 784 F.3d 558, 566-67 (9th Cir. 2015) (suggesting
law student with criminal defense experience would be similarly situated
to other lawyers or law students). Other than confirming that they could
remain fair and impartial, neither potential juror was questioned further
about how her profession might influence her role as a juror. The state
exercised its peremptory strike against only the Black mental health
professional. And, although Reaves directly presented the side-by-side
comparison of the stricken and the non-stricken potential jurors to the court
during the brief Batson colloquy, neither the state nor the court offered any
explanation at all to rebut this “evidence tending to prove purposeful
discrimination.” Miller-El, 545 U.S. at 241. Instead, the court abruptly
denied the Batson challenge, finding, without explanation, “no purposeful
discrimination.”

Were we to read in isolation the trial court’s finding that no
purposeful discrimination had occurred, we might be disinclined to find
clear error. After all, our state’s Batson jurisprudence does not uniformly
require a court to make express findings on the record when ruling on a
Batson challenge. See Porter, 251 Ariz. 293, ¶ 17. However, “we must
examine the whole picture,” being careful not to review a single strike “in
isolation.” Flowers, 139 S. Ct. at 2250. Here, the trial court stopped the
Batson inquiry when the non-discriminatory basis had been plausibly
challenged and without seeking further explanation from the state. In this
respect, the court’s finding of no discriminatory purpose “was not fairly
supported by the record.” Purkett, 514 U.S. at 769.

Specifically, the state’s proffered reason for striking J.F. was
that she worked as a clinical psychologist. Neither the state nor the trial
court articulated in detail any reasons the state would wish to strike a
clinical psychologist from this jury, although of course a venireperson’s
occupation may constitute a permissible race-neutral reason to strike,
absent other indicia of discrimination. See Porter, 251 Ariz. 293, ¶ 16. The
state argues that it was “unsurprising” that it “would exclude a clinical
psychologist in a case in which the only viable defense is that the defendant
either snapped or acted in self-defense due to past traumatic experiences.”
But this reasoning could apply similarly to the Caucasian therapist A.S.,

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Opinion of the Court

whom the state did not strike and who ultimately served on the jury.
Compounding this evidence of potential pretext, the court had already
precluded any evidence showing that Reaves suffers from post-traumatic
stress disorder (PTSD) through rulings on the state’s motions in limine.2 In
fact, earlier in the voir dire proceedings, the court had directly stated that
“there’s no issue about mental illness or anything like that in this case”
while addressing another potential juror who ultimately did not serve on
the jury. Under the totality of the circumstances, then, the record cannot
support the court’s unquestioning acceptance of the state’s potentially
pretextual motive for its strike of J.F.3

The state argues on appeal that the trial court’s “simple
conclusion that there was no purposeful discrimination and its denial of the
Batson challenge were all that was required by Arizona and Federal law.”
For this assertion, the state cites extensively our supreme court’s recent
opinion in Porter, which held that trial courts are not required to “make
express findings on the credibility of a demeanor-based justification for a
peremptory strike when a non-demeanor-based justification is also offered
and there is no evidence that either justification is pretextual.”4 251 Ariz.

2 Later,during trial, the court again denied Reaves’s requests to
introduce evidence showing that he suffers from PTSD, which makes him
“hypervigilant” and “reactive.” Evidence of a PTSD diagnosis is opinion
testimony going toward proving mental defect, State v. Jacobson, 244 Ariz.
187, ¶ 20 (App. 2017), and it is generally inadmissible in Arizona for the
purposes of proving an affirmative defense or to negate the mens rea
element of a crime through a diminished-capacity defense, State v. Malone,
247 Ariz. 29, ¶¶ 8-9 (2019).
3 During oral argument before this court, the state suggested a
plausible distinction between the two mental health professionals. But any
such distinctions were far from obvious and went wholly unexplored by
the trial court—during a constitutionally required process that mandates a
serious inquiry.
4As Reaves argues, this narrow holding in Porter does not squarely
control the circumstances here. There, the prosecutor offered both a
demeanor-based and a non-demeanor-based reason for its strike of a
potential juror. 251 Ariz. 293, ¶ 2. Both reasons were race-neutral and not
clearly pretextual, and the trial court explicitly deemed the
non-demeanor-based reason to be credible. Id. ¶¶ 4, 25-26. Under those
circumstances, our supreme court reasoned that no additional express
findings were necessary regarding the demeanor-based justification

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Opinion of the Court

293, ¶¶ 1, 19. Although Arizona trial courts are not always required to
make express findings when ruling on a Batson challenge, it does not
necessarily follow that our jurisprudence contemplates no circumstances
whatsoever in which such findings are necessary. To the contrary, our
jurisprudence has not fully foreclosed the possibility that some
circumstances might require express findings. See Porter, 251 Ariz. 293, ¶ 1
(considering only whether trial court addressing Batson challenge “must
make express findings on the credibility of a demeanor-based justification
for a peremptory strike when a non-demeanor-based justification is also
offered and there is no evidence that either justification is pretextual”).

We conclude that more detailed findings at the third step of
the Batson analysis were necessary under these circumstances, where
Reaves timely raised non-frivolous evidence suggesting purposeful
discrimination might have prompted the state’s peremptory strike and the
state was deprived of the opportunity to provide a facially race-neutral
reason for making the strike. Cf. State v. Gay, 214 Ariz. 214, ¶ 29 (App. 2007)
(deferring to trial court’s assessment of prosecutor’s stated reasons for
strikes, when record supported them). Unlike other cases where express
findings were unnecessary, the record here does not clearly support the trial
court’s conclusion that the strike was not pretextual. See Smith, 250 Ariz.
69, ¶¶ 65, 68, 73 (relying on trial court’s “specific findings as to each juror”
in determining state’s race-neutral reasons not pretextual, even while
noting that “our precedent allows us to defer to” implicit findings). Despite
that, the trial court went no further than to “simply deem the State’s
explanations ‘plausible,’” id. ¶ 73, without articulating why the state’s
given reason of J.F.’s mental health occupation was not pretextual. Under
these facts, Reaves raised a colorable inference that discrimination had
infected the jury selection process sufficient to compel the court to explain,
on the record, why it found no such discrimination had occurred.

To be clear, we do not conclude that Reaves has “proved
discrimination.” Johnson, 545 U.S. at 169-70 (noting that, in Batson, trial
court’s actual error was “fail[ing] to demand an explanation from the
prosecutor” after defendant made prima facie case that strike had
discriminatory purpose). Nor do we suggest the court was necessarily
bound to overrule the state’s strike, on this record. Rather, we conclude

provided for the strike. Id. ¶ 26. Here, by contrast, the prosecutor provided
a non-demeanor-based reason for his strike, and as we have discussed
above, Reaves raised a non-frivolous inference that the reason given was
potentially pretextual.

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Opinion of the Court

that under the totality of the circumstances here, where the court was
confronted with “evidence tending to prove purposeful discrimination,”
Miller-El, 545 U.S. at 241, it was required to either seek further explanation
from the prosecutor or explain on the record why it found no such
additional explanation necessary.

Our state’s jurisprudence affords trial courts much latitude
to make implicit findings when ruling on Batson challenges. But we cannot
condone a process so abbreviated that it renders the Batson process an
empty ritual. Two additional features of the record support this conclusion.

First, the trial court itself supplied a neutral basis for the strike
before the state could articulate one. This disabled a primary mechanism
in the Batson process for deterring attorneys from exercising peremptory
strikes in a racially discriminatory fashion: the knowledge that they will be
called upon to provide a race-neutral basis for a strike and that their
demeanor in doing so, and the plausibility of that basis, will be carefully
assessed by the court. See Snyder, 552 U.S. at 477 (“best evidence [of
discriminatory intent] often will be the demeanor of the attorney who
exercises the challenge” (alteration in Snyder) (quoting Hernandez v. New
York, 500 U.S. 352, 365 (1991))); Medina, 232 Ariz. 391, ¶ 44 (at Batson’s
second step, “prosecutor must offer a race-neutral reason for each strike”
(emphasis added)). Here, once the court volunteered a race-neutral basis
for the strike, the prosecutor could infer that neither his demeanor nor the
plausibility of that basis would face any critical assessment by the court.

Second, our record reflects that the trial court made a
demeaning comment about the stricken psychologist as it denied the Batson
challenge: the judge stated he was amused by J.F.’s reference to herself as
a doctor. The psychologist’s reference had not been proffered as a basis for
striking her, and she holds a PhD in her field. The court’s offhand remark
could be read as both gratuitous and disrespectful. Notably, as a “[B]lack
citizen,” J.F. is among the very class of persons the Batson standard was
designed to protect from discrimination. Batson, 476 U.S. at 85 (“Exclusion
of [B]lack citizens from service as jurors constitutes a primary example of
the evil the Fourteenth Amendment was designed to cure.”). The court’s
inappropriate remark does not provide us with confidence that it
undertook the searching assessment the Batson standard compels. See
Johnson, 545 U.S. at 172.

In so holding, we do not aim to extend our state’s Batson
jurisprudence beyond the reach our supreme court has already articulated
in the opinions cited above. Rather, we underscore a consistent theme of

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that jurisprudence, which has repeatedly exhorted trial courts to “bolster
their rulings and facilitate review on appeal” when addressing Batson
challenges. Porter, 251 Ariz. 293, ¶ 27. Our federal circuit has similarly
requested or required such express findings in situations with a similar
inference of discrimination. See, e.g., United States v. Alanis, 335 F.3d 965,
968-69 & n.3 (9th Cir. 2003) (trial court must “evaluate meaningfully the
persuasiveness of” state’s explanation).

In sum, the trial court never allowed or required the
prosecutor to provide its potentially race-neutral reasons for its strike of
J.F., and consequently its finding of no discrimination was unsupported by
the record. On remand, the trial court shall hold a hearing to allow the state
to present evidence as to its race-neutral reasons for the strike, and it shall
determine whether the prosecutor violated Batson. See Batson, 476 U.S. at
100 (remanding to require prosecutor to explain reasons underlying strikes
if prima facie showing of discrimination established on remand); see also
Snyder, 552 U.S. at 486 (leaving open possibility that motivation for
peremptory strike might be “profitably explored further on remand” under
different circumstances); Paulino v. Castro, 371 F.3d 1083, 1092 (9th Cir. 2004)
(after trial court relied “on its own speculation as to” state’s reasons for
strikes, remanding for evidentiary hearing for state to “present evidence as
to the prosecutor’s race-neutral reasons” and allow court to determine
whether Batson violation occurred); State v. Urrea, 244 Ariz. 443, ¶¶ 11-17
(2018) (acknowledging that federal jurisprudence recognizes variety of
remedies following Batson error); State v. Anaya, 170 Ariz. 436, 441 (App.
1991) (remanding for trial court to attempt to reconstruct reasons
underlying two peremptory challenges). If such a hearing cannot enable
the trial court to make a sufficiently meaningful inquiry, the court must
vacate Reaves’s convictions and sentences and order a new trial.5

Denial of Requested Jury Instructions

Reaves also argues the trial court erred in denying him three
requested jury instructions. We review a court’s denial of requested jury
instructions for abuse of discretion, State v. Brock, 248 Ariz. 583, ¶ 16 (App.
2020), and we review de novo whether the instruction correctly and
adequately stated the law, id. ¶ 17. We “will not reverse a jury verdict based
on an erroneous instruction unless the instructions, taken as a whole, could

5Becausethe trial court may make adequate findings on remand to
support its denial of Reaves’s Batson challenge, we address below the
remainder of Reaves’s claims of error.

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Opinion of the Court

reasonably mislead a jury.” Id. “A party is entitled to an instruction on any
theory reasonably supported by the evidence.” State v. Rodriguez, 192 Ariz.
58, ¶ 16 (1998). However, a court is not bound to “give every specific
instruction requested by the defense,” so long as the “instructions
adequately set forth the law applicable to the case,” id., “in understandable
terms,” State v. Noriega, 187 Ariz. 282, 284 (App. 1996).

Burglary Instruction

Reaves argues the trial court erred by refusing to instruct the
jury that “a person cannot burglarize his or her own home,” language taken
from a comment to the Revised Arizona Jury Instructions (RAJI) Stat.
Criminal 15.07 (second-degree burglary) (5th ed. 2019). Reaves sought this
particular language because he presented evidence, primarily through his
own testimony, that he considered the house his legal residence on the date
of the killing. Specifically, Reaves testified that on the night of the killing,
he let himself into the house using a spare key—one that A.T. did not know
Reaves still possessed. He also testified that the week before the killing,
A.T. had told him the house was “still [his] home.” And during closing
arguments, Reaves maintained the house was “his house,” re-emphasizing
the evidence supporting that claim. Reaves now argues the court’s failure
to give his requested instruction violated his constitutional rights to a fair
trial, due process, and to present a complete defense.6

Rather than including Reaves’s requested language that one
cannot burglarize one’s own home, the trial court instructed the jury that
“[a] person who has an absolute and unlimited right to be in a dwelling
cannot commit a burglary thereof.” We identify no error in this instruction.
Whereas Reaves’s requested instruction reflected the comment to the RAJI,
the final instruction directly quoted the case of origin for the RAJI comment.
See State v. Altamirano, 166 Ariz. 432, 437 (App. 1990) (reversing burglary
conviction when “defendant had an absolute and unconditional right to

6 Reaves also argues this alleged error infected his conviction for
first-degree murder. However, the jury found Reaves guilty of both
premeditated murder under A.R.S. § 13-1105(A)(1) and felony murder
under § 13-1105(A)(2). Because the jury’s finding of guilt for premeditated
murder did not require a conviction for burglary as an underlying offense,
see § 13-1105(A)(1), any hypothetical error would be harmless as to Reaves’s
first-degree murder conviction. See State v. Peraza, 239 Ariz. 140, ¶ 22 (App.
2016) (erroneous jury instructions harmless if state can show beyond
reasonable doubt that error did not affect verdict).

13
 STATE v. REAVES
Opinion of the Court

enter and remain on the property where he committed the crime”); see also
RAJI Stat. Crim. 15-07.

Reaves presses that the trial court’s instruction was “not
adequate” because “the jury could have found” the residence was his home
based on trial evidence that he considered the house to be his home.
However, Altamirano did not hold that a defendant has an absolute and
unlimited right to any dwelling he merely considers to be his legal
residence, or his “own home.” See 166 Ariz. at 437 (distinguishing cases
upholding “convictions for burglary where the defendant had some legal
or possessory interest in the residence”). Rather, Altamirano concluded only
that a defendant cannot be convicted of burglary when he or she has “an
unlimited right to be in the dwelling,” such as in the defendant’s “own
residence.” Id. at 435, 437. Importantly, it distinguished this conclusion
from prior case law, particularly State v. Van Dyke, 127 Ariz. 335 (1980),
which upheld a burglary conviction when the residence in question
“primarily belonged to the victim” and the defendant had entered “with
consent” but could claim “only limited possessory rights in the property.”
Altamirano, 166 Ariz. at 435. And, Altamirano expressly reasoned that even
though Van Dyke was decided under an earlier version of the Arizona
burglary statute, it “continue[d] to be viable” under the existing statute on
elements specifically at issue here: (1) burglary does not require a
defendant to break and enter “into the dwelling of another,” and
(2) burglary “emphasizes the subjective intent of the person who enters or
remains unlawfully” in a structure. Id. at 434. Thus, Altamirano left
undisturbed Van Dyke’s narrow holding that “a burglary charge can be
maintained where entry is with consent and the defendant has only limited
possessory rights in the property.” Id. at 435.

Van Dyke offers a better parallel than Altamirano. The
defendant in Van Dyke lived periodically with his “on-again, off-again”
girlfriend and had been staying and sleeping away from the residence in
question on the date of the burglary. 127 Ariz. at 336. Similarly, Reaves’s
testimony suggested that he previously resided at A.T.’s home and thought
he might have a right to live there again, but had been living outside the
residence for at least two weeks following a fight, had removed his items
from the house, and had returned the only key the other occupants knew
he possessed. Reaves’s situation therefore resembles the Van Dyke
defendant’s circumstances: both defendants might have had some
possessory interest in the residences in which they committed a felony, but
neither lived in the residence at the time of the crime and neither had an
absolute or unlimited right to remain in the dwelling in question. Thus, the
instruction given here reflected the law applicable to the case. Finally,

14
 STATE v. REAVES
Opinion of the Court

neither RAJI instructions nor their comments constitute binding authority.
See State v. Logan, 200 Ariz. 564, ¶ 12 (2001) (RAJIS not approved by our
supreme court). We therefore identify no error in the court’s refusal to give,
verbatim, Reaves’s requested instruction from the RAJI comment.

Justification Instructions

Reaves also complains the trial court erred in refusing to
provide the jury with defense-of-others and crime-prevention 7 jury
instructions. A party is entitled to an instruction on any reasonably
supported theory. Rodriguez, 192 Ariz. 58, ¶ 16. Only the “slightest
evidence” is necessary to warrant a defendant’s requested justification
instruction. State v. Almeida, 238 Ariz. 77, ¶ 9 (App. 2015) (quoting State v.
King, 225 Ariz. 87, ¶ 14 (2010)). This is a “low standard,” and we construe
the evidence in the light most favorable to the proponent of the instruction.
King, 225 Ariz. 87, ¶¶ 13, 15. Under this standard, we do “not weigh the
evidence or resolve conflicts in it,” but rather we merely “decide[] whether
the record provides evidence ‘upon which the jury could rationally sustain
the defense.’” Almeida, 238 Ariz. 77, ¶ 9 (quoting State v. Strayhand, 184
Ariz. 571, 588 (App. 1995)). Thus, although we typically review the denial
of a jury instruction for abuse of discretion, we “independently assess
whether the evidence supported a justification instruction, because that is a
question of law and involves no discretionary factual determination.” Id.
¶ 9.

During trial, Reaves testified that he did not trust D.P., who
had indicated he possessed firearms. Reaves also testified that several days
before the killing, D.P. had threatened to kill him, his family, and “anybody

7The state argues Reaves forfeited and waived our review of the trial
court’s denial of this instruction. However, Reaves requested the
instruction, and the court addressed its reason for denying it. Because the
court had the opportunity to rule on the issue, we exercise our discretion to
deem the issue preserved for purposes of this appeal. See Banales v. Smith,
200 Ariz. 419, ¶ 6 (App. 2001) (“party must have afforded the trial court and
opposing counsel the opportunity to correct any asserted defects” to raise
them on appeal). And because Reaves developed and supported this
argument in his opening brief, he plainly did not waive the issue, either.
State v. Bolton, 182 Ariz. 290, 298 (1995) (insufficient argument waives
appellate review); see also Ariz. R. Crim. P. 31.10(a)(7) (opening briefs must
contain argument with appropriate supporting citations to record and legal
authorities).

15
 STATE v. REAVES
Opinion of the Court

it t[ook] to get” him. Reaves indicated he was “concerned about the people
at” A.T.’s house and that he considered D.P. to be a “dangerous person.”

Reaves also testified that that when he observed A.T. and D.P.
together through her bedroom window, he believed A.T. was going to “get
herself hurt.” Nonetheless, he left A.T. and D.P. together, and he did not
call law enforcement. Instead, Reaves repeatedly called and texted A.T.,
accused her of having sex with D.P., and upon her confirmation that she
had done so, Reaves told her he was going to kill D.P. and it would be her
fault. Reaves also told a gas station attendant he had caught his girlfriend
cheating on him and that he wanted to damage her car.

Reaves entered A.T.’s house, carrying a metal bar, sometime
after 1:30 a.m., at least three hours after initially leaving. After grabbing the
kitchen knives, Reaves walked into A.T.’s bedroom. He testified D.P. was
standing by the bed, and that he told D.P. to leave. Reaves knew A.T.
typically kept a loaded firearm near her, but he did not know where the
firearm was, or whether D.P. had access to it. Reaves said that he
interpreted D.P.’s extension of his hand “as an attack,” “just reacted,”
“snapped,” and ducked below D.P.’s hand before stabbing him. Reaves
testified he was afraid D.P. was going to “try to trick [him] into something,”
that he believed D.P. was “a danger to the house,” and that he “wanted to
just defend [him]self.” He also repeatedly testified that he was acting at
least partially in self defense.

The trial court provided the jury with Reaves’s requested
self-defense instruction, but refused to give his requested instructions
regarding defense of third parties and crime prevention. The court
explained it did not believe the evidence supported either of these
instructions. Reaves argues he presented sufficient evidence to allow a jury
to find he was acting in defense of others, thus warranting the instructions.

Reaves’s requested crime-prevention instruction would have
informed the jury that he was justified in acting with force “if and to the
extent” he “reasonably believed that physical force or deadly physical force
was immediately necessary to prevent another from committing or
apparently committing . . . [b]urglary, sex assault, homicide, [or] any other
felony of unlawful home entry with felony.” See A.R.S. § 13-411(A). Under
§ 13-411, such force “can be used only to the extent it appears reasonable
and immediately necessary to prevent commission of” any of the above
crimes.

16
 STATE v. REAVES
Opinion of the Court

Reaves argues “the jury may have concluded his concerns
after D.P. threatened to kill his family and anybody close to him were valid
especially where [D.P.] told [Reaves] he had a gun.” He maintains this case
is similar to Almeida, where we held a crime-prevention instruction was
required “because the evidence tended to suggest ‘in the slightest degree’
that [the defendant] was acting to prevent gun violence or yet another
aggravated assault from being perpetrated by the victim during his
ongoing episode of road rage.” 238 Ariz. 77, ¶ 11 (quoting State v. Johnson,
108 Ariz. 42, 43 (1972)). However, the defendant in Almeida presented
evidence that the victim had been driving aggressively, had waved a gun
in the air, and had chased the defendant in his car, running red lights in the
process. Id. ¶¶ 3-4. By contrast, Reaves presented no evidence that D.P.
had taken any threatening action toward A.T., her housemates, or the
general public, much less action that could be construed as imminently
threatening. Rather, even read in the light most favorable to Reaves, his
testimony established only that several days before the incident, D.P. had
threatened to kill Reaves and any other unspecified individual who
interfered with that outcome, that D.P. might have a firearm, and that D.P
was in A.T.’s house, with her permission. This testimony does not provide
even the slightest evidence that D.P. was committing, would imminently
commit, or had committed any of the crimes enumerated in Reaves’s
requested instruction. See id. ¶ 9.

Further, these facts do not establish that D.P. presented an
immediate risk to any individual other than, arguably, Reaves himself.
Indeed, as noted above, Reaves testified that, after seeing D.P. in A.T.’s
bedroom, he left the house, did not contact law enforcement to report D.P.’s
threats, and returned hours later without any indication that D.P. had
renewed his threats against Reaves or made any direct threats against A.T.
or the house’s occupants. Reaves’s testimony did not contain even the
slightest evidence that he reasonably believed D.P. presented an immediate
threat to any third party. Cf. King, 225 Ariz. 87, ¶¶ 14-16 (evidence that
defendant acted in response to being hit in head by water bottle thrown by
victim sufficient evidence to warrant self-defense instruction); State v.
Lujan, 136 Ariz. 102, 104 (1983) (collecting cases in which a victim’s “hostile
demonstrations” sufficed to support self-defense instruction). Thus, even
observing the low threshold entitling a defendant to a defense justification,
we see no error in the trial court’s conclusion that the record did not support
the crime-prevention instruction.

We similarly find no error in the trial court’s refusal to
provide a third-person-defense instruction. That instruction, as requested
by Reaves, stated that he was justified in using physical force “in defense of

17
 STATE v. REAVES
Opinion of the Court

a third person” if both “[a] reasonable person in the situation would have
believed that physical force was necessary to protect against” another’s use,
attempted use, or threatened use “of unlawful physical force against a third
person” and that “[t]he defendant used or threatened no more physical
force than would have appeared necessary to a reasonable person in the
situation.” See A.R.S. § 13-406; see also A.R.S. §§ 13-404, 13-405. In addition
to the lack of evidence suggesting that any person other than Reaves was
potentially in need of protection, the evidence also showed that Reaves
exchanged a metal bar for kitchen knives before proceeding to stab D.P.
seventeen times. Under these facts, no jury could rationally find that
Reaves had used no more physical force than necessary in the situation. We
thus also find no error in the court’s refusal to provide the
third-party-defense instruction.

Premeditation Instruction

Reaves also argues the trial court erred by denying his
requested instruction defining premeditation. Over Reaves’s objection, the
court instructed the jury as follows:

Premeditation means the Defendant
intended to kill another human being or knew
that he would kill another human being, and
after forming that intent or knowledge,
reflected on the decision before killing. It’s this
reflection, regardless of the length of time in
which it occurs, that distinguishes first-degree
murder from second-degree murder.

An act is not done with premeditation if
it is in the instant effect of a sudden quarrel or
heat of passion. The time needed for reflection
is not necessarily prolonged and the space of
time between the intent or knowledge to kill
and the act of killing may be very short.

As he argued at trial, Reaves maintains the court should not have included
the last sentence of the instruction regarding the length of time necessary to
allow for premeditation. Reaves argues “no special facts” allowed the jury
to receive the instruction that “the passage of time may be very short,” and
also that the court should have instructed the jury that the state had to
“prove actual reflection.” He also argues the court should have instructed
the jury “the state had to prove actual reflection to prove premeditation.”

18
 STATE v. REAVES
Opinion of the Court

And, he argues that the instruction’s treatment of time “negated” his
heat-of-passion defense.

We find no error in the instruction. Reaves correctly
maintains that to prove premeditation, the state must go beyond merely
proving time passed between the formation of an intent to kill and the act
of killing. See State v. Thompson, 204 Ariz. 471, ¶¶ 27, 29, 31 (2004)
(construing premeditation statute, A.R.S. § 13-1101(1), as requiring proof of
reflection but allowing circumstantial evidence to constitute such proof).
However, to accurately explain this law, the trial court was not required to
give the instruction precisely as Reaves requested it. First, as we noted
above, a defendant is not entitled to “every specific instruction” he or she
requests. Rodriguez, 192 Ariz. 58, ¶ 16. Further, the court’s instruction
comported with the jury instruction recommend in Thompson, the
prevailing case on this issue. Although Thompson concluded that a jury
instruction that “proof of actual reflection is not required” was erroneous
“without further clarification,” it did not require courts to directly give the
inverse instruction, that the state must prove actual reflection. 204 Ariz.
471, ¶¶ 32-34. Rather, Thompson provided a model instruction that conveys
the legislature’s intent for “premeditation, and the reflection that it requires,
to mean more than the mere passage of time.” Id. ¶¶ 27, 32. That model
instruction explains to jurors that “reflection, regardless of the length of
time in which it occurs,” is what “distinguishes first degree murder from
second degree murder.” Id. ¶ 32. Thus, the Thompson instruction clearly
requires the state to prove actual reflection to sustain a charge of
first-degree murder.

Here, the trial court’s instruction—taken nearly verbatim
from the language suggested by Thompson and subsequently incorporated
in our state’s statutory criminal jury instructions—fully encompassed the
principle that proof of reflection requires more than a mere showing that
time passed. See id.; RAJI Stat. Crim. 11.05 (first-degree premeditated
murder) (5th ed. 2019). And, although the state emphasized in its closing
argument the amount of time that passed between when Reaves initially
formed the intent to kill D.P. and when he actually stabbed D.P., it did not
rely solely on the passage of time to prove the element of premeditation.
Specifically, the state also presented evidence that Reaves reflected on his
decision to kill D.P., including that he (1) told A.T. during a phone call that
he was going to kill D.P., (2) exchanged his metal bar for kitchen knives
upon entering A.T.’s house, and (3) upon entering, told A.T. to get her gun
to kill him before he killed D.P., and then actually stabbed and killed D.P.
Thus, the use of time here as one portion of the evidence offered to support
an inference of premeditation is distinguishable from what Thompson

19
 STATE v. REAVES
Opinion of the Court

identified as impermissible use of time as a complete substitute for evidence
of reflection. See 204 Ariz. 471, ¶¶ 29, 33. Similarly, the court’s instruction
correctly recited Thompson’s instruction that “[a]n act is not done with
premeditation if it is the instant effect of a sudden quarrel or heat of
passion,” id. ¶ 32, and the inclusion of this language did not prevent Reaves
from arguing that he had “snapped” and was guilty only of second-degree
murder.

We also find no error in the trial court’s instruction that intent
may be formed in a relatively short amount of time. Although the state
presented evidence that Reaves may have formed an intent to kill well
before entering A.T.’s house, other facts in evidence supported an inference
that Reaves formed the intent to kill in a shorter amount of time.
Specifically, the jury heard testimony that over the course of only a few
minutes, Reaves “fl[ew] into the driveway” of A.T.’s house, stated he was
going to kill D.P., picked up the kitchen knives, then entered the bedroom
and stabbed D.P. repeatedly.

In any event, even had the inclusion of this sentence been
erroneous, any hypothetical error would have been harmless. See State v.
Henderson, 210 Ariz. 561, ¶ 18 (2005) (error harmless if state proves “beyond
a reasonable doubt that the error did not contribute to or affect the verdict”);
see also Thompson, 204 Ariz. 471, ¶ 34 (refusing to overturn conviction and
sentence where beyond reasonable doubt that flawed jury instruction did
not affect verdict). The state’s proof of premeditation did not rely solely on
the passage of time, and the remainder of the evidence supporting an
inference of intent was sufficient for a reasonable juror to find, beyond a
reasonable doubt, that Reaves reflected on his decision to kill D.P. before
doing so.

Preclusion of PTSD Evidence

Finally, Reaves argues the trial court erred when it denied
him the opportunity to present “observation evidence” suggesting he
suffers from PTSD, which he argues influenced his “reactiveness” to
perceived threats to his and others’ safety. In denying the admission of the
proffered evidence, the court reasoned that prevailing case law prevented
testimony that Reaves has PTSD without support for that evidence, such as
expert testimony or diagnostic testing. It also reasoned that Reaves’s
assertion he suffers from PTSD could not be used as character trait
evidence, because it could go only to a defense of diminished capacity or
insanity. The court further reasoned that the evidence was “not relevant”
and, even if it were, that its probative value was not outweighed by the

20
 STATE v. REAVES
Opinion of the Court

danger of unfair prejudice or confusion for the jury, such that it was
precluded under Rule 403, Ariz. R. Evid. Reaves argues, as he did below,
that preclusion of this evidence deprived him of his right to a defense, as
protected by the Fifth and Sixth Amendments to the United States
Constitution. Specifically, he argues the evidence was admissible insofar
as it supported his theories that he acted either in the heat of passion or in
self defense. He further argues that the court’s ruling deprived him of his
fundamental right to testify in his own defense.

We review for abuse of discretion a trial court’s rulings on the
admissibility of evidence. State v. Davolt, 207 Ariz. 191, ¶ 60 (2004). We
review de novo questions of law. State v. Leteve, 237 Ariz. 516, ¶ 18 (2015).
Because Reaves preserved this argument by raising it at trial, our review
turns on whether any error occurred, and if so, whether it was harmless.
See id.

We need only look to the latter requirement, however,
because we agree with the state that any hypothetical error in the trial
court’s preclusion of the proffered testimony was surely harmless. Even
had the court admitted Reaves’s evidence that he suffers from PTSD,
reactiveness, and hypervigilance, at best this evidence could only have
served to rebut the element of premeditation in the first-degree murder
conviction. But, as we outline above, the state’s evidence supporting
premeditation was overwhelming. See id. ¶ 26. Given the breadth of
evidence supporting the jury’s finding that Reaves reflected on the murder
before committing it, the guilty verdict was surely unattributable to any
claimed error in precluding evidence offered to support theories of non-
premeditated homicide. See id. ¶ 25; see also Sullivan v. Louisiana, 508 U.S.
275, 279 (1993).8 Furthermore, the jury separately found Reaves guilty of
both premeditated murder, as defined by A.R.S. § 13-1105(A)(1), and felony
murder, as defined by § 13-1105(A)(2). Even were we to reverse Reaves’s
premeditated murder conviction, his first-degree murder conviction would
stand as felony murder. Cf. State v. Anderson, 210 Ariz. 327, ¶ 59 (2005).

8The United States Supreme Court has not identified the improper
restriction of a defendant’s testimony as structural error putting it beyond
the scope of harmless error review. See Arizona v. Fulminante, 499 U.S. 279,
309-12 (1991); see also Rock v. Arkansas, 483 U.S. 44, 55-56 (1987) (recognizing
that “the right to present relevant testimony is not without limitation”).

21
 STATE v. REAVES
Opinion of the Court

Disposition

With respect to Reaves’s claim of error pursuant to Batson, we
remand to allow the trial court and the parties to augment the record to
make detailed findings consistent with this opinion. If, upon appropriate
inquiry, the court concludes the strike injected impermissible
discrimination into the jury selection process, the court must vacate
Reaves’s convictions and sentences and order a new trial. With respect to
Reaves’s other claims of error, we affirm.

22