State v. Ewer, No. CR-21-0059-PR (January 18,2023) (J. Beene)

SELF-DEFENSE DEFINED IN A.R.S. § 13-404(A)  APPLIES TO DEFENDANT'S AND NOT VICTIM'S CONDUCT

The defendant and others got into a rock throwing fight over a failed $20 heroin transaction that escalated into the defendant shooting an approaching rock thrower.  The State charged Ewer with one count of second-degree murder, disorderly conduct involving a firearm, and discharge of a firearm in or into the city limits. The prosecution was permitted to argue the victim's conduct should be judged by the jury the same as the defendant's with respect to Arizona's self-defense statute AR.S. § 13-404(A). The court revised the Recommended Arizona Jury Instruction [RAJI] substituting the word “person” for “defendant.” Defendant was convicted on all counts.  The Arizona Court of Appeals vacated the convictions and remanded the case for a new trial. The Arizona Supreme Court reversed and remanded the trial court while vacating in part the Arizona Court of Appeals decision.

AR.S. § 13-404(A) provides that “a person is justified in threatening or using physical force against another when and to the extent a reasonable person would believe that physical force is immediately necessary to protect [one]self against the other's use or attempted use of unlawful physical force.” The RAJI on self-defense substitutes “defendant” for “person” in defining the defense. Here the supreme court looked to the companion statutes to AR.S. § 13-404(A) in Chapter 4 of title 13, specifically, §§ 13-401 to -403, -405 to -411, to determine that the clear legislative intent was to apply the self-defense statute to defendants not victims. Further, to instruct the jury that they ought to consider the victim's conduct in light of the statute draws the intended attention away from the defendant's conduct to a third person whose conduct was not being judged. The court did caution that this is not to say a victim's conduct is not often under scrutiny in evaluating the defendant's conduct. You just shouldn't be instructing the jury to apply the law of self defense against that conduct.