State v. Lujan

FELDMAN, Justice,

specially concurring.

I agree with the result and much of the reasoning of the court’s opinion, and write only because of my concern that a portion of the opinion might be interpreted as holding that the defendant’s right of self-defense could be impaired by the actions of the other occupants of the vehicle in which he was riding.

Absent a finding that as a matter of law defendant was acting in concert with others, I believe that defendant’s right to instruction on self-defense is determined only by his own reasonable actions and perceptions. See A.R.S. § 13-404. Defendant testified that he never saw a gun in the possession of the occupants of the other vehicle, no shots were fired at the vehicle occupied by defendant, and the only shots came from defendant’s vehicle. Defendant did not drop to the floor, stay in the seat, crouch or take any action to determine whether he was in danger; he simply added his shotgun blast at the end of the fusillade from the guns of the other passengers in his vehicle. The basis for an instruction on self-defense by use of deadly physical force is the reasonable belief that such force is “immediately necessary.” A.R.S. § 13 — 405. Viewing the facts in a light most favorable to the defendant, they do not establish a jury question on this point, and I therefore concur.