State v. Carson

ECKERSTROM, Chief Judge,

concurring in part and dissenting in part:

¶34 I concur with my colleagues’ well-reasoned opinion in every respect but one: I would conclude that the trial record contains adequate evidence to support Carson’s requested self-defense instruction as to the aggravated assault charges against him.

¶ 35 As the majority correctly observes, a trial court must provide a self-defense instruction if the record contains even the “slightest evidence” that the defendant acted in self-defense. State v. King, 225 Ariz. 87, ¶ 14, 235 P.3d 240, 243 (2010). In analyzing this question as to the aggravated assault charges, the majority has considered whether the record supports, by an objective standard, any reasonable inference that B.C., the alleged aggravated assault victim, actually used or threatened deadly force against Carson. But that analysis overlooks that we must consider the events not from the perspective of the alleged victim but from the perspective of someone in the defendant’s situation.

¶ 36 A defendant may assert self-defense if “a reasonable person in the defendant’s circumstances would have believed that physical force was ‘immediately necessary to protect himself.’ ” Id. ¶ 12, quoting A.R.S. § 13-404(A) (emphasis added). Those beliefs need only be reasonable, not correct. “An instruction on self-defense is required when a defendant acts under a reasonable belief; actual danger is not required.” State v. Grannis,

183 Ariz. 52, 60, 900 P.2d 1, 9 (1995), disapproved on other grounds by King, 225 Ariz. 87, ¶¶ 9, 12, 235 P.3d at 242, 243; accord State v. Lamar, 144 Ariz. 490, 497, 698 P.2d 735, 742 (App. 1984) (noting justification instruction included possibility of mistake in fact); cf. State v. Reiner, 179 Mont. 239, 587 P.2d 950, 956-57 (1978) (“Defendant must demonstrate that his belief in the necessity for using force is reasonable, but even a mistaken belief may be reasonable.”); State v. Abdulkadir, 293 Neb. 560, 878 N.W.2d 390, 396 (2016) (“A defendant’s use of deadly foi'ce in self-defense is justified if a reasonable ground existed under the circumstances for the defendant’s belief that he or she was threatened with death or serious bodily harm, even if the defendant was actually mistaken about the extent of the danger.”); State v. Rodriguez, 195 N.J. 165, 949 A.2d 197, 201 (2008) (“Self-defense exonerates a person who kills in the reasonable belief that such action was necessary to prevent his or her death or serious injury, even though this belief was later proven mistaken.”), quoting State v. Kelly, 97 N.J. 178, 478 A.2d 364, 373 (1984); State v. Daniels, 160 Wis.2d 85, 465 N.W.2d 633, 647 (1991) (Callow, J., dissenting) (“It is not necessary that the danger which gave rise to the belief actually existed; it is sufficient that the person resorting to self-defense ... reasonably believed in the existence of such a danger, and such reasonable belief is sufficient even where it is mistaken.”), quoting Crotteau v, Karlgaard, 48 Wis.2d 245, 179 N.W.2d 797, 800 (1970).

¶ 37 Within a record comprised of eyewitnesses’ testimony, often conflicting, as to a fast-moving event that occurred, in part, outdoors at night, two salient facts do not appear to be disputed: (1) Carson did not fire his weapon until after he had been kicked and punched to the ground by numerous assailants and (2) police found two bloody knives on and near the body of one of Carson’s targets. Prom this, a jury could reasonably infer that Carson had been assaulted by numerous persons, some of whom were armed with knives, and that the assault had succeeded in bringing Carson to the ground. In my view, these facts alone should allow a jury to decide whether a reasonable person *16under the circumstances would “believe that deadly physical force [was] immediately necessary to protect himself against the other’s use or attempted use of unlawful deadly physical force.” A.R.S. § 13-405(A)(2). Those events constitute the “slightest evidence” necessary to entitle Carson to a self-defense instruction.

¶ 38 The majority does not disagree with the above proposition but proceeds to analyze the reasonableness of Carson’s actions as to each of the alleged victims. And, the majority finds no evidence in the record from which a juror could infer without speculation that B.C. was an actual assailant. In my view, the evidence renders this individualized approach unnecessary. One witness testified that “everybody just started fighting, just started jumping [Carson]” outside, and he “[p]ull[ed] out his gun so they could get off him” and “started shooting.” Furthermore, B.C. himself described the group attacking Carson as “a whole bunch of people.” This constitutes at least slight evidence supporting an inference that Carson could have reasonably perceived all those within his immediate vicinity to be assailants.

¶ 39 Even assuming that analyzing B.C.’s actions separately would be necessary under the “slightest evidence” standard, the record provides more than slight evidence from which a jury could infer that Carson reasonably perceived B.C, specifically to be an assailant. By B.C.’s own admission, he was inside when the fight commenced, and he then followed the altercation outside, where he injected himself into the fray. B.C. was also one of three people shot, the other two of whom were indisputably in the group assaulting Carson. And, according to B.C.’s own testimony, Carson “looked at [him] in the eyes” and audibly cocked the gun before shooting him. From this last testimony, the jury could both infer that B.C. was dose enough to Carson to perceive these details even outdoors at night and that Carson specifically rather than randomly targeted B.C.

¶40 “In weighing the sufficiency of evidence to justify the giving of an instruction, the inferences which reasonably and logically flow from the evidence are to be considered.” Reichardt v. Albert, 89 Ariz. 322, 326, 361 P.2d 934, 936-37 (1961).6 The above evidence allows the logical inference that Carson had targeted and shot the people who had assaulted him and that he reasonably perceived B.C, to be one of those people. The additional facts suggesting B.C, might have possessed a gun and might have attempted to conceal that fact from the police provide further evi-dentiary support for the requested instruction here. But this more debatable inference was unnecessary for the instruction to issue.

¶41 That the state presented substantial evidence countering Carson’s self-defense theory is irrelevant to our analysis. See Andrews v. Fry’s Food Stores of Ariz., 160 Ariz. 93, 95, 770 P.2d 397, 399 (App. 1989) (“[I]f there is any evidence tending to establish the theory posed in the instruction, it should be given even if there are contradictory facts presented.”). And, because the jury and not this court is the ultimate arbiter of credibility, see Correa v. Curbey, 124 Ariz. 480, 481, 605 P.2d 458, 459 (App. 1979), B.C.’s version of events—to the extent it might contradict the above inferences—is not relevant either.

¶ 42 Even assuming we were to credit B.C.’s claim that he involved himself in the fight only as a peacemaker, we must analyze the reasonableness of the shooter’s perceptions with reference to the circumstances the shooter faced.7 A defendant being beaten, *17kicked, and potentially stabbed by numerous assailants cannot reasonably be expected to make fine distinctions about the motives and acts of those apparently descending upon him. As Justice Holmes observed long ago, “[d]etaehed reflection cannot be demanded in the presence of an uplifted knife.” Brown v. United States, 256 U.S. 335, 343, 41 S.Ct. 501, 65 L.Ed. 961 (1921). In this context, B.C. could have reasonably been perceived by the shooter as an assailant, regardless of whether B.C. posed an actual threat.

¶43 Another reason exists for reversing the aggravated assault convictions in this case. As the majority acknowledges, the trial court erred by refusing self-defense instructions on the two murder charges. Supra ¶¶ 22-23. And, as our supreme court established in State v. Glissendotf, an instruction-related error as to one count is not necessarily confined to that count, but may affect other verdicts as well, depending on the circumstances of the case. 235 Ariz. 147, ¶¶ 20-24, 329 P.3d 1049, 1054-55 (2014).

¶ 44 Here, the jury was instracted, on the one hand, that it had to “decide each count separately on the evidence with the law applicable to it, uninfluenced by your decision on any other count.” On the other hand, the jury also was instructed it could “consider ... all the ... evidence in the case” when deciding whether the state had proved the defendant’s guilt beyond a reasonable doubt. Consistent with these instructions, the jury therefore could have rendered verdicts on the aggravated assault charges while considering the evidence related to the two murders, for which no law on justification was provided.

¶ 45 An error is harmless only if a reviewing court can determine, beyond a reasonable doubt, that it did not contribute to or affect the verdict. Glissendorf, 235 Ariz. 147, ¶ 24, 329 P.3d at 1055. In this case, the preclusion of any self-defense instructions on the murder charges necessarily colored and affected the jury’s determinations on the aggravated assault charges, even assuming arguendo that Carson was not otherwise entitled to justification instructions for those separate counts.

¶ 46 As the case was presented below, it logically followed that Carson had committed aggravated assault against B.C. because Carson had not been justified in using deadly physical force against the threat posed by J.M. and S.B. If, however, the requested instructions had been provided as to those two victims, then a factual question would have arisen whether Carson’s use of deadly force was reasonable under the circumstances, see §§ 13-404(A), 13-406(A), and whether, in the course of defending himself, Carson had acted with the mens rea necessary for assaulting allegedly innocent third parties such as B.C. See A.R.S. §§ 13-105(10), 13-1203(A)(1), 13-1204(A)(1), (2). Had justification instructions been given for the murder counts, then Carson could have argued, for example, that he had been negligent, but not reckless, in shooting B.C. See §§ 13-105(10), 13-1203(A)(1), 13-1204(A)(1), (2). Carson also could have contended that he was not “aware of and [did not] consciously disregard[] a substantial and unjustifiable risk” of injury to B.C., because his shooting of the other two victims was justified and his erroneous shooting of B.C., in that context, did not represent a “gross deviation from the standard of conduct” a reasonable person would observe in the same situation. § 13-105(10)(c). The majority therefore errs by regarding the instruction-related errors as isolated to the murder charges.

¶ 47 For these reasons, I concur with the majority’s analysis and disposition of the murder counts but dissent from its opinion affirming the aggravated assault convictions and sentences.

. Pursuant to Rule 21.1, Ariz. R. Crim. P., civil law related to jury instructions normally applies to criminal cases. Accord King, 225 Ariz. 87, ¶ 13, 235 P.3d at 243.

. Although the majority cites the correct legal standard for this case, supra IT 2, in application its opinion fails to state the facts "in the manner which provides the strongest possible support” for the proponent of the justification instructions. Bliss v. Treece, 134 Ariz. 516, 520, 658 P.2d 169, 173 (1983). Examples include the majority's repeated observations that Carson possessed a gun, supra ¶¶ 3-4, as well as the majority’s acceptance of potentially self-serving and dubious testimony from B.C. about his involvement in the melee outside. Whereas the majority suggests B.C. was "across the street” and away from the conflict when the shooting began, after the fighting had stopped, supra ¶¶ 5-6, a proper view of the record suggests B.C. was neither temporally nor spatially removed from the fight. The street in question was a small residential street, meaning B.C. was "pretty close by”; both witness testimony and the location of numerous shell casings *17suggested the fighting and shooting occurred within the street itself; and "[p]retty much the entire party” was "out there” when the fighting took place. In addition, C.Y. testified that he was unsuccessful in removing either J.M. or S.B. from the fight and that they were still attacking Carson when he started shooting. Thus, our standard of review, which requires us to view the evidence in the light most favorable to Carson, does not give us the liberty to disregard this favorable testimony from C.Y. and instead accept the conflicting account offered by B.C. But see supra ¶ 20,