State v. Thompson

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-01-0435-PR
)
Appellee,) Court of Appeals
) Division One
v. ) No. 1 CA-CR 00-0439
)
LARRY D. THOMPSON, ) Maricopa County Superior
) No. CR 99-07826
)
Appellant.)
) O P I N I O N

Appeal from the Superior Court in Maricopa County
The Honorable Bernard J. Dougherty, Judge

AFFIRMED

Opinion of the Court of Appeals, Division One
201 Ariz. 273, 34 P.3d 382 (App. 2001)

VACATED

JANET A. NAPOLITANO, ARIZONA ATTORNEY GENERAL Phoenix
by Randall M. Howe, Chief Counsel,
Criminal Appeals Section
and Joseph T. Maziarz, Assistant Attorney General
and Kerri L. Chamberlin, Assistant Attorney General Tucson
Attorneys for Appellee

JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix
by James R. Rummage, Deputy Public Defender
Attorneys for Appellant

B E R C H, Justice

¶1 Defendant Larry Thompson challenges the constitutionality

of Arizona’s first degree murder statute, Ariz. Rev. Stat.

(“A.R.S.”) § 13-1105(A)(1) (2001). He argues that the definition
of premeditation, which provides that “[p]roof of actual reflection

is not required,” eliminates any meaningful distinction between

first and second degree murder and renders the first degree murder

statute unconstitutionally vague. See A.R.S. § 13-1101(1) (2001).

We accepted review to consider the constitutionality of the statute

and to clarify both the meaning of premeditation and the State’s

burden of proof.

BACKGROUND

¶2 On May 17, 1999, Thompson shot and killed his wife,

Roberta Palma.1 Several days before the shooting, Palma had filed

for divorce, and Thompson had discovered that she was seeing

someone else. Just a week before the shooting, Thompson moved out

of the couple’s home. As he did so, Thompson threatened Palma

that, “[i]f you divorce me, I will kill you.”

¶3 Thompson returned to the couple’s neighborhood the

morning of May 17. He was seen walking on the sidewalk near the

home and his car was spotted in a nearby alley. Two witnesses

reported that a man dragged a woman by the hair from the front

porch into the home. That same morning, police received and

recorded a 9-1-1 call from the house. The tape recorded a woman’s

screams and four gunshots. The four gunshots span nearly twenty-

seven seconds. Nine seconds elapse between the first shot and the

1
We review the facts in the light most favorable to
sustaining the verdict. State v. Gallegos, 178 Ariz. 1, 9, 870
P.2d 1097, 1105 (1994).

-2-
third, and there is an eighteen-second delay between the third shot

and the fourth.

¶4 Police arrived shortly after the call and found Palma

dead from gunshot wounds. An autopsy of her body revealed several

fresh abrasions, five non-contact gunshot wounds, and one contact

gunshot wound.

¶5 At trial, Thompson did not deny killing his wife, but

claimed that he did so in the heat of passion, making the killing

manslaughter or, at most, second degree murder. During closing

arguments, Thompson’s counsel argued that the crime had occurred in

the heat of passion and that Thompson had “simply snapped.”

¶6 In her closing arguments, the prosecutor argued that the

evidence that Thompson premeditated the murder was “overwhelming.”

She emphasized the timing of the shots and the delay between them.

The prosecutor also reminded the jury of Thompson’s threat, made a

week before the murder, to kill his wife. The prosecutor then

argued that Thompson need not actually have reflected, but only had

the time to reflect: “But the main point to remember about

premeditation is that premeditation is time to permit reflection.

The instruction also tells you that actual reflection is not

necessary, [only] the time to permit reflection.” Nonetheless, the

prosecutor referred to circumstantial evidence suggesting that

Thompson actually had reflected, but then told the jury it need

only decide that Thompson had the time to reflect, not that he

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actually had reflected.

¶7 After closing arguments, the judge instructed the jury

regarding premeditation as follows:

“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.2

¶8 The jury found Thompson guilty of first degree murder and

the judge sentenced him to life in prison without the possibility

of parole. Thompson appealed, arguing that the definition of

premeditation, particularly the clause stating that “[p]roof of

actual reflection is not required,” unconstitutionally relieved the

State of the burden of proving the element of premeditation.

DISCUSSION

¶9 Our consideration of the constitutionality of any statute

must be founded on principles of statutory construction. Our

primary role when construing a statute is “to determine and give

effect to the legislat[ure’s] intent in enacting the statute.”

State v. Korzep, 165 Ariz. 490, 493, 799 P.2d 831, 834 (1990). In

attempting to ascertain the statute’s meaning, “we consider the

statute’s context, the language used, the subject matter, the

2
This instruction is taken verbatim from A.R.S. § 13-
1101(1) (1998).

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historical background, the statute’s effects and consequences, and

the statute’s spirit and purpose.” Id.

¶10 Moreover, when considering a constitutional challenge to

a statute, we begin with the premise that the statute is

constitutional, San Carlos Apache Tribe v. Superior Court, 193

Ariz. 195, 204, ¶ 11, 972 P.2d 179, 188 (1999), and we construe it

“so as to preserve [its] constitutionality wherever possible.”

State v. Soto-Fong, 187 Ariz. 186, 202, 928 P.2d 610, 626 (1996).

Thus, we construe statutes sensibly, attempting to effectuate the

intent of the legislature, and we avoid constructions that would

render statutes invalid or parts of them meaningless. Mendelsohn

v. Superior Court, 76 Ariz. 163, 169, 261 P.2d 983, 988 (1953).

¶11 The statute at issue, Arizona’s first degree murder

statute, provides that “[a] person commits first degree murder if

. . . [i]ntending or knowing that the person’s conduct will cause

death, the person causes the death of another with premeditation.”3

A.R.S. § 13-1105(A)(1) (emphasis added). Thompson challenges the

constitutionality of the statute, arguing that it renders first

degree murder indistinguishable from second degree murder. A

person commits second degree murder in Arizona “if without

premeditation . . . [s]uch person intentionally causes the death of

3
First degree murder also includes felony murder and the
intentional or knowing murder of a law enforcement officer. A.R.S.
§ 13-1105(A)(2), (3). Thompson was not prosecuted under either of
those definitions, so they are not at issue.

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another person.” A.R.S. § 13-1104(A)(1) (2001) (emphasis added).

Thus, for the purposes of this appeal, first and second degree

murder are indistinguishable except that first degree murder

requires premeditation.

¶12 According to the definition adopted by the legislature,

“[p]remeditation” 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.

A.R.S. § 13-1101(1) (emphasis added).4

¶13 The question before us is whether this definition of

premeditation abolishes the requirement of actual reflection

altogether, whether it eliminates the requirement of direct proof

of actual reflection, or whether it substitutes for the necessary

proof of actual reflection the mere passage of enough time to

permit reflection. The State asserts the third interpretation,

that the legislature intended to relieve the State of the burden of

proving a defendant’s hidden thought processes, and that this

definition of premeditation establishes that the passage of time

may serve as a proxy for reflection. The court of appeals agreed

with this interpretation.

4
We know of no other state, nor have the parties alerted
us to one, that includes the clause “[p]roof of actual reflection
is not required” in its definition of premeditation.

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¶14 Thompson maintains that reducing premeditation to the

mere passage of time renders the statute vague and unenforceable

because courts have held that actual reflection can occur as

quickly as “successive thoughts of the mind.” E.g., Macias v.

State, 36 Ariz. 140, 150, 283 P. 711, 715 (1929). Thus, he argues

and the court of appeals agreed, the difference between first and

second degree murder has been eliminated.

¶15 Although the legislature may classify crimes as it sees

fit, it must do so in a way that is not arbitrary or capricious.

State v. Leeman, 119 Ariz. 459, 462, 581 P.2d 693, 696 (1978).

Laws must provide explicit standards for those charged with

enforcing them and may not “impermissibly delegate[] basic policy

matters to policemen, judges, and juries for resolution on an ad

hoc and subjective basis.” Grayned v. City of Rockford, 408 U.S.

104, 108-09, 92 S. Ct. 2294, 2299 (1972); see also Giaccio v.

Pennsylvania, 382 U.S. 399, 402-03, 86 S. Ct. 518, 520-21 (1966)

(stating that “a law fails to meet the requirements of the Due

Process Clause if it is so vague and standardless that it

leaves . . . judges and jurors free to decide, without any legally

fixed standards, what is prohibited and what is not in each

particular case”). Accordingly, for the first degree murder

statute to be constitutional, the definition of premeditation must

provide a meaningful distinction between first and second degree

murder. We turn now to a review of how premeditation has provided

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that distinction in Arizona.

A. History of the First Degree Murder Statute in Arizona

¶16 For most of this state’s history, first degree murder

explicitly required proof of “premeditation,” or actual reflection

by the defendant. See Macias, 36 Ariz. at 149, 283 P. at 714-15

(“In order that a killing shall be murder in the first degree . . .

it must be shown that a plan to murder was formed after the matter

had been made a subject of deliberation and reflection . . . .”);

State v. Magby, 113 Ariz. 345, 352, 554 P.2d 1272, 1279 (1976)

(upholding a jury instruction that read “[i]n order to find a

deliberate and premeditated killing you must find more reflection

on the part of the defendant than is involved in the mere formation

of the specific intent to kill”).

¶17 Because premeditation involves a defendant’s thought

processes, the question arose how to prove that a defendant had

reflected on the decision to kill. Courts responded by allowing

the issue to be proved by circumstantial evidence. E.g., Moore v.

State, 65 Ariz. 70, 75-76, 174 P.2d 282, 285 (1946) (quoting 40

C.J.S. Homicide § 192 for the proposition that deliberation and

premeditation may be “inferred from the facts and circumstances of

the killing”). Indeed, at one time, the murder statute set forth

fact patterns that suggested premeditation: “poison, lying in

wait, torture, or when the killing is done in the perpetration or

attempt to perpetrate certain felonies. If none of these elements

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appear, the evidence must show in some manner that the killing was

‘wilful, deliberate and premeditated.’” Id. at 75, 174 P.2d at 285

(describing former A.R.S. § 43-2902).

¶18 In 1978, however, premeditation was redefined to mean

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 a length of
time to permit reflection. An act is not done
with premeditation if it is the instant effect
of a sudden quarrel or heat of passion.

A.R.S. § 13-1101(1) (1978). This definition highlights the time

element, speaking, as it does, in terms of intention or knowledge

that precedes the killing by enough time to allow reflection and

excluding killings that occur as a result of a sudden quarrel.

¶19 When considering this definition of premeditation, this

court has expressed concern regarding the emphasis on the passage

of time. See State v. Guerra, 161 Ariz. 289, 778 P.2d 1185 (1989).

Noting that “a jury may be misled by an instruction placing undue

emphasis on the rapidity with which premeditation can occur,” id.

at 294, 778 P.2d at 1190, we nonetheless found no reversible error

in a jury instruction on premeditation that read as follows:

The time for reflection need not be prolonged
and there need be no appreciable space of time
between the intention to kill unlawfully and
the act of killing.
It may be as instantaneous as the
successive thoughts of the human mind, however
it must be longer than the time required to
form the intent or knowledge that such conduct
will cause death. An act is not done with
premeditation if it is the instant effect of a

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 sudden quarrel or heat of passion.

Id. at 293-94, 778 P.2d at 1189-90. We affirmed Guerra’s

conviction because the instruction, considered as a whole, was

sufficiently balanced to withstand scrutiny. Id. at 294, 778 P.2d

at 1190; see also State v. Eastlack, 180 Ariz. 243, 259, 883 P.2d

999, 1015 (1994).

¶20 Since that time, this court has continued to stress that

the state must show actual reflection by a defendant to prove first

degree murder and to minimize the emphasis placed on the mere

passage of time as a proxy for proving reflection. For example,

while acknowledging that premeditation can occur as instantaneously

as “successive thoughts of the mind,” we have nonetheless required

proof, whether direct or circumstantial, of actual reflection. See

State v. Willoughby, 181 Ariz. 530, 539, 892 P.2d 1319, 1328 (1995)

(“Premeditation is established by evidence of a plan to murder

formed after deliberation and reflection.”); State v. Kreps, 146

Ariz. 446, 449, 706 P.2d 1213, 1216 (1985) (same).

¶21 Despite these cautions, however, litigants over time have

injected confusion into the analysis of premeditation through

inappropriate emphasis on the time element in cases in which there

was evidence, whether direct or circumstantial, of actual

reflection. To stem the confusion, the court of appeals decided

State v. Ramirez, 190 Ariz. 65, 945 P.2d 376 (App. 1997),

explicitly holding that premeditation requires actual reflection.

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The appeals court reasoned that defining premeditation as a length

of time that can be instantaneous “obliterates any meaningful

difference between first and second degree murder – other than the

penalties.” Id. at 69, 945 P.2d at 380. It concluded that “[i]f

the difference between first and second degree murder is to be

maintained, premeditation has to be understood as reflection.” Id.

¶22 But other courts in this state disagreed with Ramirez.

In State v. Haley, for example, the court of appeals found that

“premeditated murder requires only that the defendant’s intent to

kill . . . precede the killing by a sufficient period of time to

permit reflection, and does not require actual reflection.” 194

Ariz. 123, 125, ¶ 9, 978 P.2d 100, 102 (App. 1998).

B. The Current Definition of Premeditation

¶23 To resolve the conflict and clarify the distinction

between first and second degree murder, the legislature amended the

definition of premeditation in 1998 to include the clause “[p]roof

of actual reflection is not required.” A.R.S. § 13-1101(1). This

amendment, however, has not eliminated the confusion regarding the

interpretation of premeditation. Indeed, it may have compounded

it. In this case, the court of appeals interpreted the

legislature’s 1998 amendment of A.R.S. § 13-1101(1) as ensuring

“that premeditation was defined solely as the passage of a period

of time, . . . eliminat[ing] actual reflection as part of the

definition, and . . . overrul[ing] the case law to the contrary.”

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State v. Thompson, 201 Ariz. 273, 278, ¶ 15, 34 P.3d 382, 387 (App.

2001).5

¶24 Nonetheless, the court concluded that the statute was not

constitutionally infirm because it determined that “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.” Id. at 278, ¶ 16, 34 P.3d at 387. The court

reasoned that only when the phrase “any length of time to permit

reflection” is understood in light of the cases allowing the “time

to permit reflection” to be as “instantaneous as successive

thoughts of the mind” that the statute became unconstitutionally

standardless. Id. at 280-81, ¶¶ 25, 27, 34 P.3d at 389-90. Thus,

the court of appeals concluded that the statute is constitutional

in the case now before us, but is unconstitutional when a jury is

instructed that reflection can occur as quickly as successive

thoughts of the mind, for “when premeditation is just an instant of

5
Division Two of the Arizona Court of Appeals came to a
similar conclusion in State v. Booker, 203 Ariz. 284, 53 P.3d 635
(App. 2002). The court held the statute constitutional, reasoning
that if the legislature defined premeditation as the time necessary
to permit reflection, “then that period of time is a fortiori
sufficient to permit reflection.” Id. at 289, ¶¶ 11, 12, 53 P.3d
at 640. In addition, it concluded that the instruction that a
murder is not premeditated “if it is the instant effect of a sudden
quarrel or heat of passion” adequately advised the jury that “an
act cannot be both impulsive and premeditated.” Id. (quoting
A.R.S. § 13-1101(1) and Ramirez, 190 Ariz. at 71, 945 P.2d at 382).

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time and nothing more, irrebuttable evidence of premeditation will

exist in every case of intentional or knowing murder.” Id. at 281-

82, ¶¶ 29-33, 34 P.3d at 390-91; see also State v. Cecil, 201 Ariz.

454, 36 P.3d 1224 (App. 2001) (same).

¶25 We have not, until this case, had the opportunity to

address the confusion surrounding the issue of premeditation. See

State v. Van Adams, 194 Ariz. 408, 415, ¶ 18 n.4, 984 P.2d 16, 23

n.4 (1999) (declining to address contradictory conclusions in

Ramirez and Haley because the issue was not properly before the

court). Thompson urges us to overturn his conviction on the ground

that the statute is unconstitutionally vague. The State, on the

other hand, argues that the statute is constitutional and that the

current definition of premeditation meaningfully distinguishes

between first and second degree murder.

¶26 We conclude, as did the court of appeals, that if the

only difference between first and second degree murder is the mere

passage of time, and that length of time can be “as instantaneous

as successive thoughts of the mind,” then there is no meaningful

distinction between first and second degree murder. Such an

interpretation would relieve the state of its burden to prove

actual reflection and would render the first degree murder statute

impermissibly vague and therefore unconstitutional under the United

States and Arizona Constitutions.

¶27 We are, however, mindful of our duty to construe this

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statute, if possible, in a way that not only gives effect to the

legislature’s intent, see Korzep, 165 Ariz. at 493, 799 P.2d at

834, but also in a way that maintains its constitutionality. See

Soto-Fong, 187 Ariz. at 202, 928 P.2d at 626. As a starting point,

we note that the words chosen by the legislature do not say that

actual reflection is no longer required to distinguish first from

second degree murder. Rather, the legislature provided that

“[p]roof of actual reflection is not required.” A.R.S. § 13-

1101(1) (emphasis added). Recognizing that direct proof of a

defendant’s intent to kill often does not exist, the legislature

sought to relieve the state of the often impossible burden of

proving premeditation through direct evidence. But by this act the

legislature did not intend to eliminate the requirement of

reflection altogether or to allow the state to substitute the mere

passing of time for the element of premeditation. While the phrase

“proof of actual reflection is not required” can be interpreted in

a way that relieves the state of the burden of proving reflection,

such an interpretation would not pass constitutional scrutiny, and

the legislature could not have intended such a result.6

6
To prove a criminal offense, the government must prove
both that a criminal act occurred and that the defendant had the
requisite mental state. See, e.g., A.R.S. § 13-101(3) (2001). It
is this mental state that distinguishes between first and second
degree murder. To redefine premeditation as a moment of time that
may be “instantaneous” renders the distinction meaningless. It
allows a defendant’s culpability to turn “on the ticking of a
clock, and not on any differential act, omission, or accompanying
mental state.” State v. Zamora, No. 1 CA-CR 01-0469, 2003 WL

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Accordingly, we conclude that the legislature intended to relieve

the state of the burden of proving a defendant’s thought processes

by direct evidence. It intended for premeditation, and the

reflection that it requires, to mean more than the mere passage of

time.

¶28 We find support for our interpretation in the admonition

that “an act is not done with premeditation if it is the instant

effect of a sudden quarrel or heat of passion.” Id. This language

distinguishes impulsive killings from planned or deliberated

killings and confirms the legislature’s intent that premeditation

be more than just a snap decision made in the heat of passion.

¶29 Our decision today distinguishes the element of

premeditation from the evidence that might establish that element.

Although the mere passage of time suggests that a defendant

premeditated – and the state might be able to convince a jury to

make that inference – the passage of time is not, in and of itself,

premeditation.7 To allow the state to establish the element of

352464, at *8 (Ariz. App. Feb. 18, 2003) (Fidel, J., dissenting).
An offense so defined does not “give fair warning” whether conduct
will be punished as first degree murder rather than second, see
A.R.S. § 13-101(2), nor does it “differentiate on reasonable
grounds between [first and second degree murder].” Id. § 13-
101(4). Such a chance result does not satisfy the requirements of
due process.
7
Part of the confusion, we believe, stems from the
unfortunate use of the adjective “actual” to describe reflection.
It is unquestioned that the state must prove the defendant’s
“actual” intent or knowledge in a first degree murder case, yet
there is no suggestion – nor could one reasonably be made – that

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premeditation by merely proving that sufficient time passed to

permit reflection would be to essentially relieve the state of its

burden to establish the sole element that distinguishes between

first and second degree murder.

¶30 Indeed, even those jurists who interpret the amended

definition of premeditation to mean only the passage of time to

permit reflection seem to assume that a jury will eventually

determine that actual reflection occurred before convicting of

premeditated murder. See Cecil, 201 Ariz. at 456, ¶ 11, 36 P.3d at

1226 (Weisberg, J., concurring) (stating that “the judiciary and

the legislature have left it to the jury to examine the particular

facts and circumstances of each case and determine from those facts

and circumstances whether the defendant had sufficient time to

premeditate, and whether he did so”); Thompson, 201 Ariz. at 284,

¶ 47, 34 P.3d at 393 (Ehrlich, J., concurring) (positing that

“‘premeditation’ is a period of time during which the mind actually

considers the performance of an act”).

¶31 As we noted earlier, only in rare situations will a

defendant’s reflection be established by direct evidence such as

diary entries or statements to others. See Ramirez, 190 Ariz. at

69, 945 P.2d at 380 (“Premeditation can, of course, be proven by

the state must prove with direct evidence the element of intent or
knowledge. We allow the state to satisfy its burden with
circumstantial evidence of intent or knowledge. The state’s burden
is the same when establishing the element of premeditation.

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circumstantial evidence; like knowledge or intention, it rarely can

be proven by any other means.”); Thompson, 201 Ariz. at 284, ¶ 48,

34 P.3d at 393 (Ehrlich, J., concurring, noting that premeditation

relates to “mental processes,” which are not always susceptible to

“proof of actual reflection”). But the state may use all the

circumstantial evidence at its disposal in a case to prove

premeditation. Such evidence might include, among other things,

threats made by the defendant to the victim, a pattern of

escalating violence between the defendant and the victim, or the

acquisition of a weapon by the defendant before the killing. In

short, the passage of time is but one factor that can show that the

defendant actually reflected. The key is that the evidence,

whether direct or circumstantial, must convince a jury beyond a

reasonable doubt that the defendant actually reflected.

C. Jury Instruction

¶32 Our review of the case law in this area uncovered various

jury instructions relating to the definition of premeditation.

These instructions are intended to inform jurors of the law

applicable to the case in terms that the jurors can readily

understand. In re Leon G., 389 Ariz. Adv. Rep. 6, 11, ¶ 32, 59

P.3d 779, 788 (2002). We recognize that premeditation should be

defined for the jury. But we also recognize that the statutory

definition of premeditation may not explain it in an easily

understandable way and, indeed, might mislead the jury. Thus, we

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disapprove of the use of the phrase “proof of actual reflection is

not required” in a jury instruction. As we explained above, that

phrase merely relieves the state of the burden of proving with

direct evidence that a defendant reflected; it does not relieve the

state of its burden of proving reflection. Whether the state

proves reflection through direct evidence or through circumstantial

evidence will be determined by the facts of each case.8 We also

discourage the use of the phrase “as instantaneous as successive

thoughts of the mind.” We continue to be concerned that juries

could be misled by instructions that needlessly emphasize the

rapidity with which reflection may occur. Accordingly, trial

judges should, in future cases, instruct juries as follows:

“Premeditation” means that the defendant
intended to kill another human being [knew
he/she would kill another human being], and
that after forming that intent [knowledge],
reflected on the decision before killing. It
is 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
the instant effect of a sudden quarrel or heat
of passion.

Only when the facts of a case require it should a trial judge

instruct the jury, or may the state argue, that “the time needed

for reflection is not necessarily prolonged, and the space of time

8
We note that juries are routinely instructed that facts
may be proved by direct or circumstantial evidence. See Revised
Arizona Jury Instructions Standard Criminal 24 (direct and
circumstantial evidence) (1997).

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between the intent [knowledge] to kill and the act of killing may

be very short.” It is the act of premeditation and not the length

of time available that determines the question.

¶33 This instruction does not mean that the state must rely

on direct evidence of premeditation; as we have noted, such

evidence is rarely available. Nor does this instruction mean that

the state cannot rely on the passage of time between the formation

of intent and the act of killing as a fact tending to show

premeditation. This instruction merely clarifies that the state

may not use the passage of time as a proxy for premeditation. The

state may argue that the passage of time suggests premeditation,

but it may not argue that the passage of time is premeditation.

¶34 In the case before us, the jury was instructed that

“proof of actual reflection is not required.” We hold that,

without further clarification, this instruction was erroneous. The

State also argued that it did not have to prove actual reflection,

but had to prove only that enough time had elapsed to allow

reflection. This, too, was in error. However, the jury was not

instructed that actual reflection can occur as instantaneously as

successive thoughts of the mind. Moreover, the State presented

overwhelming evidence that Thompson actually reflected on his

decision to kill his wife, including evidence of threats to kill

her a week before the murder, the time that elapsed between each

gunshot, and the victim’s screams as recorded on the 9-1-1 tape

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between each gunshot. We conclude beyond a reasonable doubt that

the flawed jury instruction and the State’s reliance on that

instruction did not affect the jury’s verdict, and we will not

overturn Thompson’s conviction and sentence. See State v. Bible,

175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993).

CONCLUSION

¶35 As we have interpreted it, we find the definition of

premeditation in Arizona’s first degree murder statute, A.R.S. §

13-1105(A)(1), constitutional. We vacate the opinion of the court

of appeals, but affirm Thompson’s conviction and sentence for first

degree murder.

Rebecca White Berch, Justice

CONCURRING:

Charles E. Jones, Chief Justice

Ruth V. McGregor, Vice Chief Justice

Stanley G. Feldman, Justice (retired)

R Y A N, Justice, CONCURRING IN PART AND DISSENTING IN PART:

¶36 The court of appeals in State v. Ramirez, 190 Ariz. 65,

69, 945 P.2d 376, 380 (App. 1997), held that the 1978 statutory

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definition of premeditation, along with the instruction that

premeditation may be as instantaneous as successive thoughts of the

mind, “obliterates any meaningful difference between first and

second degree murder--other than the penalties.” The Ramirez court

concluded that juries should be instructed that “premeditation

requires actual reflection.” Id. at 70, 945 P.2d at 381. In

obvious disagreement with the Ramirez decision, the legislature

responded in 1998 by amending the definition of premeditation. See

1998 Ariz. Sess. Laws, ch. 289, § 6. That legislation amended

Arizona Revised Statutes (“A.R.S.”) section 13-1101(1) (2001), by

adding to the definition of premeditation the phrase, “[p]roof of

actual reflection is not required.” Yet, today this court adds to

the definition of premeditation that which the legislature

expressly excluded. Therefore, while I agree with affirming the

conviction here, I disagree with the majority’s conclusion that the

statutory definition of premeditation requires evidence of actual

reflection. Accordingly, I respectfully dissent from those

portions of the opinion holding that actual reflection must be

proven.

¶37 I begin with several principles of statutory

construction. First, it is the province of the legislature to

define crimes. State v. DePiano, 187 Ariz. 27, 38, 926 P.2d 494,

505 (1996) (Zlaket, J., concurring in part, dissenting in part);

State v. Hickey, 114 Ariz. 394, 396-97, 561 P.2d 315, 317-18

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(1977). Second, a statute must not be written so vaguely that it

“impermissibly delegates basic policy matters to policemen, judges,

and juries for resolution on an ad hoc and subjective basis, with

the attendant dangers of arbitrary and discriminatory application.”

Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972). However,

“[d]ue process requires neither perfect notice, absolute precision

nor impossible standards” when defining a crime. Fuenning v.

Superior Court, 139 Ariz. 590, 598, 680 P.2d 121, 129 (1983). Due

process “requires only that the language of a statute convey a

definite warning of the proscribed conduct.” Id. Third, a

statute’s language is the “the best and most reliable index” of its

meaning. Janson v. Christensen, 167 Ariz. 470, 471, 808 P.2d 1222,

1223 (1991). Finally, it is not the province of the judiciary to

add language to a statute that the legislature expressly excluded.

City of Phoenix v. Butler, 110 Ariz. 160, 162, 515 P.2d 1180, 1182

(1973) (finding choice of appropriate statutory wording “rests with

the Legislature, and the court may not substitute its judgment for

that of the Legislature”); Diaz v. Ariz. Dept. of Transp., 186

Ariz. 59, 62, 918 P.2d 1077, 1080 (App. 1996) (“The judiciary

should not . . . add to a statute that which the legislature deemed

unnecessary.") (citation omitted).

¶38 With these principles in mind, I turn to the first degree

murder statute at issue here and the definition of premeditation.

Thompson was convicted of violating A.R.S. section 13-1105(A)(1),

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which defines first degree murder as an intentional or knowing

killing of another person with premeditation. Premeditation is

defined as follows:

“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.

A.R.S. § 13-1101(1). The majority finds that when the legislature

added the phrase “[p]roof of actual reflection is not required” to

the definition of premeditation, “the legislature did not intend to

eliminate the requirement of reflection altogether or to allow the

state to substitute the mere passing of time for the element of

premeditation.” Supra, at ¶ 27. This finding is based on the

assumption that “the legislature sought to relieve the state of the

often impossible burden of proving premeditation through direct

evidence.” Id. (emphasis added).

¶39 But there can be no doubt that the legislature intended

to eliminate any requirement that the state prove actual

reflection, whether by direct or circumstantial evidence. First,

the plain language of the definition of premeditation specifically

excludes any requirement that the state prove a defendant actually

reflected. See A.R.S. § 13-1101(1). Second, the Senate Fact Sheet

on the proposed amendment states that the amended statute

“[e]liminates the requirement that the prosecution show proof of

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actual reflection in order to establish premeditation in homicide

cases.” Arizona State Senate, Final Revised Fact Sheet for S.B.

1278 (dated July 13, 1998), 43rd Leg., 2nd Reg. Sess. (1997).

Third, “[w]e presume that the legislature knows the existing case

law when it . . . modifies a statute. Additionally, we presume

that by amending a statute, the legislature intend[ed] to change

the existing case law.” State v. Garza-Rodriquez, 164 Ariz. 107,

111, 791 P.2d 633, 637 (1990) (citation omitted). The Ramirez

court specifically stated that reflection “may be proved by direct

or circumstantial evidence.” 190 Ariz. at 71, 945 P.2d at 382

(emphasis added). When the legislature added the phrase, “[p]roof

of actual reflection is not required,” it unmistakably intended to

change “existing case law” and relieve the state of proving

reflection, whether by direct or circumstantial evidence.

Legislative intent could not have been more clearly expressed.

¶40 Despite this clear expression of legislative intent, the

majority concludes that the state must produce evidence, “whether

direct or circumstantial,” that a defendant “actually reflected.”

Supra, at ¶ 31. Such evidence is required, the majority claims,

for the statute to “pass constitutional scrutiny.” Supra, at ¶ 27.

¶41 Unlike my colleagues, I do not find the legislature’s

decision to eliminate proof of actual reflection and instead rely,

in part, on the passage of enough “time to permit reflection,”

makes the statute unconstitutional. The definition of

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premeditation must be read as a whole. See State v. Eastlack, 180

Ariz. 243, 259, 883 P.2d 999, 1015 (1994). And read as a whole, I

think the statute adequately distinguishes between an intentional

or knowing second degree murder and an intentional or knowing first

degree murder.

¶42 To prove the element of premeditation, the state must

satisfy three statutory factors. First, there must be proof that

the defendant acted “with either the intention or the knowledge

that he [would] kill another human being.” A.R.S. § 13-1101(1).

Second, there must be proof that such intention or knowledge

preceded the killing “by any length of time to permit reflection.”

Id. Third, while “[p]roof of actual reflection is not required,”

there must be evidence that the killing was not the result of a

“sudden quarrel or heat of passion.” Id. These three factors

combine to define a cold-blooded killing. By requiring proof that

a defendant had sufficient time to permit reflection, coupled with

requiring proof that a defendant did not act under the influence of

a sudden quarrel or heat of passion, the legislature established a

discernible standard for determining whether a killing is first

degree murder. If the facts demonstrate that the murder occurred

during a quarrel, or as a result of impulsive behavior, it

necessarily follows that the defendant’s accompanying state of mind

was such that he had insufficient time in which he could have

reflected. Consequently, the definition of premeditation merely

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requires jurors to apply a reasonable person standard to the facts

and circumstances of the case. “This is not dissimilar to asking

jurors to determine whether an individual acted ‘reasonably’ or to

resolve other conflicts similarly elusive but dependent upon the

human experience.” State v. Thompson, 201 Ariz. 273, 285, ¶ 48, 34

P.3d 382, 394 (App. 2001) (Ehrlich, J., concurring).

¶43 The majority, however, concludes that “if the only

difference between first and second degree murder is the mere

passage of time, and that length of time can be ‘as instantaneous

as successive thoughts of the mind,’ then there is no meaningful

distinction between first and second degree murder.” Supra, at ¶

26. But as discussed above, the mere passage of time is not the

only distinction between first and second degree murder. The state

must also prove that the killing was not done under the influence

of a quarrel or heat of passion. This latter requirement focuses

the jury’s assessment of the facts relating to the time factor; it

requires the jury to find that a defendant’s accompanying state of

mind be such that the killing is not the result of an impulsive

act. If the facts support such a finding, a conviction for first

degree murder is neither arbitrary nor capricious. See State v.

Booker, 203 Ariz. 284, 289, ¶ 11, 53 P.3d 635, 640 (App. 2002)

(holding that the limiting language of A.R.S. section 13-1101(1)-

that a murder is not premeditated “if it is the instant effect of

a sudden quarrel or heat of passion”-“adequately conveys the

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concept that ‘an act cannot be both impulsive and premeditated.’”

(quoting Ramirez, 190 Ariz. at 71, 945 P.2d at 382)).

¶44 I find support for my conclusion in State v. Guerra, 161

Ariz. 289, 778 P.2d 1185 (1989). There, this court examined an

instruction that, in defining premeditation, emphasized the

rapidity with which premeditation could occur. Id. at 293-94, 778

P.2d at 1189-90. The court stated that “a jury may be misled” when

an instruction places “undue emphasis on the rapidity with which

premeditation can occur.” Id. at 294, 778 P.2d at 1190. However,

the court concluded that “the remaining portions of the

instructions clarified the definition of premeditation.” Id. The

clarifying language included the phrase from A.R.S. section 13-

1101(1) that “[a]n act is not done with premeditation if it is the

instant effect of a sudden quarrel or heat of passion.” Id.; see

also Eastlack, 180 Ariz. at 259, 883 P.2d at 1015.9 Accordingly,

9
In my view, Guerra and Eastlack refute the court of
appeals’ conclusion in this matter that this court judicially
interpreted the premeditation statute’s language in such a way as
to render it unconstitutionally vague. Thompson, 201 Ariz. at 281,
¶ 32, 34 P.3d at 390. The court of appeals asserted that this
court interpreted the “instantaneous as successive thoughts of the
mind” language “as an integral part of the statute [defining
premeditation].” Id. at 280, ¶¶ 23, 25, 34 P.3d at 389 (citation
omitted). While this court may have used that language in
assessing whether the evidence supported giving an instruction on
premeditation, see, e.g., State v. Hutton, 143 Ariz. 386, 389, 694
P.2d 216, 219 (1985), both Guerra and Eastlack cautioned against
using such language when instructing juries. See also Moore v.
State, 65 Ariz. 70, 82, 174 P.2d 282, 290 (1946) (noting that while
time for deliberation and premeditation may be brief, a jury “must
not be misled into thinking that an act can at the same time be
hasty, hurried, and deliberate or impulsive, unstudied, and

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as long as a jury is instructed that a premeditated murder cannot

occur when there is a sudden quarrel or heat of passion, the

difference between first and second degree murder is adequately

distinguished for a jury to make an objective assessment of the

facts to determine if an intentional or knowing killing was first

degree murder.

¶45 The conclusion I reach in this case is one of long

standing. In Commonwealth v. Drum, 58 Pa. 9, 16 (1868), the court

explained the interplay between the speed at which premeditation

can occur and the requirement that the defendant not be under the

influence of a sudden quarrel or heat of passion.

[N]o time is too short for a wicked man to frame in his
mind his scheme of murder, and to contrive the means of
accomplishing it. But this expression must be qualified,
lest it mislead. It is true that such is the swiftness
of human thought, that no time is so short in which a
wicked man may not form a design to kill . . . yet this
suddenness is opposed to premeditation, and a jury must
be well convinced upon the evidence that there was time
to deliberate and premeditate. The law regards, and the
jury must find, the actual intent; that is to say the
fully formed purpose to kill, with so much time for
deliberation and premeditation, as to convince them that
this purpose is not the immediate offspring of rashness
and impetuous temper, and that the mind has become fully
conscious of its own design.

Id. (citations and internal quotations omitted). See also, e.g.,

Tichnell v. State, 415 A.2d 830, 842 (Md. 1980); Clarke v. State,

402 S.W.2d 863, 867-68 (Tenn. 1966); Leighton v. People, 88 N.Y.

premeditated”). Neither this court nor the legislature has adopted
the “instantaneous” language as a requirement when instructing
juries.

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117, 120 (1882).

¶46 Perhaps as one commentator contends, premeditation fails

“as the dividing line between degrees of murder.” Matthew A.

Pauley, Murder by Premeditation, 36 Am. Crim. L. Rev. 145, 169

(1999). Nonetheless, our legislature has chosen to use

premeditation as that dividing line. By using the passage of time

as a substitute for actual reflection, while at the same time

requiring that a killing not be “the instant effect of a sudden

quarrel or heat of passion,” A.R.S. section 13-1101(1), the

legislature has drawn a discernible line between intentional or

knowing first degree murder and intentional or knowing second

degree murder. That is all the constitution requires. See

Fuenning, 139 Ariz. at 598, 680 P.2d at 129.

¶47 In sum, I conclude the definition of premeditation as

statutorily defined is not unconstitutionally vague. As such, I

see no need to rewrite the statute to require the state prove a

defendant actually reflected, whether by direct or circumstantial

evidence. Finally, I would approve an instruction that tracks the

statutory language of A.R.S. section 13-1101(1), and suggest that

trial courts refrain from instructing juries that the time to

reflect may be “as instantaneous as successive thoughts of the

mind.”10

10
Instructing juries “strictly on the statutory definition
of premeditation would be more precise and less susceptible to
confusion and claims of error.” Booker, 203 Ariz. at 290 n.8, 53

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¶48 For the foregoing reasons, I concur with the majority in

affirming the conviction in this case, but dissent from the

majority’s interpretation of A.R.S. section 13-1101(1).

Michael D. Ryan, Justice

P.3d at 641 n.8. Moreover, in light of the statutory definition of
premeditation, the “instantaneous as successive thoughts” language
arguably is a comment on the evidence. See State v. Roscoe, 182
Ariz. 332, 335, 897 P.2d 634, 637 (App. 1994) (“An instruction is
an improper comment when it expresses an opinion as to what the
evidence shows or does not show, or when it assumes as proven a
disputed fact.”), vacated on other grounds, 185 Ariz. 68, 912 P.2d
1297 (1996).

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