State of Arizona v. Sergio Fierro Jr

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
____________________________________________
THE STATE OF ARIZONA,
Appellee,
v.
SERGIO FIERRO JR.,
Appellant.
______________________________________________
No. CR-20-0435-PR
Filed September 27, 2022
______________________________________________
Appeal from the Superior Court in Pima County
No. CR20182710001
The Honorable Deborah Bernini, Judge
AFFIRMED
_________________
Memorandum Decision of the Court of Appeals, Division Two
2 CA-CR-2019-0161
Filed September 30, 2020
VACATED
_________________
COUNSEL:
Mark Brnovich, Arizona Attorney General, Brunn (Beau) W. Roysden III,
Solicitor General, Linley Wilson, Deputy Solicitor General/Section Chief of
Criminal Appeals, Michael T. O’Toole, Assistant Attorney General,
Criminal Appeals Section, Kathryn A. Damstra (argued), Assistant
Attorney General, Criminal Appeals Section, Tucson, Attorneys for State of
Arizona
STATE V. FIERRO
Opinion of the Court
Megan Page, Public Defender, Sarah L. Mayhew (argued), Pima County
Public Defender’s Office, Tucson, Attorneys for Sergio Fierro Jr.
____________________
JUSTICE BOLICK authored the Opinion of the Court, in which CHIEF
JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and JUSTICE
BEENE joined. JUSTICES LOPEZ, MONTGOMERY, and KING dissented.
____________________
JUSTICE BOLICK, Opinion of the Court:
¶1 In this case, we hold that the trial court committed
fundamental error by instructing a jury that a conviction for attempted
second degree murder may be based not only on intent to kill but on
recklessness or the defendant’s knowledge that serious injury would result.
This same faulty instruction has been used repeatedly in prior cases. To put
an end to such erroneous instructions, we provide a standalone instruction
for attempted second degree murder. However, applying a fundamental
error analysis to the facts of this case, we conclude the defendant has failed
to demonstrate that the erroneous instruction prejudiced him. We therefore
affirm his conviction and sentence.
BACKGROUND
¶2 We view the evidence in the light most favorable to sustaining
the jury’s verdict and resolve all reasonable inferences against the
defendant. State v. Bible, 175 Ariz. 549, 595 (1993); State v. Dickinson, 233
Ariz. 527, 528 n.1 (App. 2013).
¶3 J.H. went to his friend D.F.’s home in 2018. Because D.F. was
not home, J.H. waited with D.F.’s brother, Sergio Fierro, in a nearby RV
trailer. While J.H. and Fierro were talking, Fierro began making “paranoid
statements,” asking J.H. who he was “running with.” When J.H. responded
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STATE V. FIERRO
Opinion of the Court
with confusion, Fierro grabbed a six-inch drill bit and stabbed J.H.’s neck.
Fierro then continued stabbing J.H. repeatedly. 1
¶4 A friend of J.H.’s, P.P., then opened the door of the trailer and
witnessed Fierro attacking J.H., who was beneath him. P.P. ran away from
the trailer, but Fierro pursued him with the drill bit, ultimately stabbing P.P.
in the face. Though seriously injured, J.H. gave chase and used a folding
knife to distract Fierro, allowing P.P. to escape.
¶5 J.H. fled to a nearby mobile home, whose residents called the
police. After an officer arrived and attended to J.H., Fierro approached
them wielding the drill bit and a bottle of alcohol. The officer ordered Fierro
to stop, but he refused to comply. The officer shot Fierro with a taser,
incapacitating him. The officer then arrested Fierro. J.H. was hospitalized
for a week for his wounds.
¶6 Fierro was charged with two counts of aggravated assault
with a deadly weapon or dangerous instrument, two counts of aggravated
assault causing temporary but substantial disfigurement, and one count of
attempted second degree murder of J.H.
¶7 During his opening statement at Fierro’s trial, the prosecutor
repeatedly told the jury that to convict Fierro for attempted second degree
murder, it would need to find that he intended to kill J.H. Then, in his
closing argument, the prosecutor reiterated that to find Fierro guilty of
attempted second degree murder, jurors must find that he intended to kill
J.H. Fierro argued that he acted in self-defense and therefore was justified
in his actions.
1 The drill bit Fierro used to attack J.H. was a spade bit. It has a small,
sharp, arrow-shaped tip, behind which are two larger flat cutting edges, so
that if thrust beyond the tip it would gouge the victim. Behind the blade is
a round shaft about four inches long that makes it possible to wield and
thrust it as a weapon. We have attached a photo of the drill bit from the
record as an appendix to this opinion.
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STATE V. FIERRO
Opinion of the Court
¶8 The trial court instructed the jury as follows:
A person commits attempted second degree murder if, acting
with the kind of culpability otherwise required for
commission of the offense, such person:
1. intentionally engages in conduct which would constitute
the offense if the attendant circumstances were as such person
believes them to be; or
2. intentionally does or omits to do anything which, under the
circumstances as such person believes them to be, is any step
in a course of conduct planned to culminate in the
commission of the offense.
The crime of second degree murder requires proof of the
following:
1. The defendant intentionally caused the death of another
person; or
2. The defendant caused the death of another person by
conduct which he knew would cause death or serious
physical injury; or
3. Under circumstances manifesting extreme indifference to
human life, the defendant recklessly engaged in conduct
which created a grave risk of death. The risk must be such
that disregarding it was a gross deviation from what a
reasonable person in the defendant’s situation would have
done.
Fierro’s lawyer did not object to this instruction.
¶9 The trial court also instructed the jury that “after you have
deliberated and determined the facts you may then find that some
instructions no longer apply. You must then consider the instructions that
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Opinion of the Court
do apply together with the facts as you have determined them. Decide this
case by applying these instructions to the facts which you find.”
¶10 The jury found Fierro guilty on all charges. The trial court
sentenced him to concurrent terms of imprisonment for the aggravated
assault convictions, the longest of which totaled 11.25 years, to be served
consecutively with a 15.75-year prison term for the attempted second
degree murder conviction.
¶11 Fierro appealed, arguing for the first time that the trial court
erred in instructing the jury on attempted second degree murder. The court
of appeals held that the trial court’s jury instruction allowing Fierro’s
conviction for attempted second degree murder with a mental state of
recklessness or based on conduct he knew would result in serious physical
injury constituted fundamental error. State v. Fierro, No. 2 CA-CR
2019-0161, 2020 WL 5820866, at *2 ¶ 8 (Ariz. App. Sept. 30, 2020) (mem.
decision). However, the court also concluded that the erroneous instruction
did not prejudice Fierro, and therefore, it affirmed his convictions and
sentences. Id. at *3 ¶ 11.
¶12 We granted review to provide guidance on the appropriate
jury instruction for attempted second degree murder, a recurring matter of
statewide importance, and to determine whether the erroneous jury
instruction in this case prejudiced Fierro. We have jurisdiction pursuant to
article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24.
I. JURY INSTRUCTION FOR ATTEMPTED SECOND DEGREE
MURDER
¶13 For many years, trial courts have repeatedly issued incorrect
jury instructions on the charge of attempted second degree murder,
suggesting it can be committed by reckless conduct or when a defendant
knows that serious bodily harm would result. Our court of appeals
recognized over a quarter-century ago that “in Arizona there is no offense
of attempted reckless second degree murder.” State v. Curry, 187 Ariz. 623,
627 (App. 1996). But erroneous instructions continued, owing to the
confusion of statutes separately governing second degree murder and
attempt.
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STATE V. FIERRO
Opinion of the Court
¶14 In State v. Ontiveros, 206 Ariz. 539, 540 ¶ 5 (App. 2003), the trial
court incorrectly instructed on attempted second degree murder that the
jury must determine:
1. The defendant intentionally committed an act; and
2. The act was a step in a course of conduct which the defendant
planned or believed would cause the death or serious physical
injury of another person.
(Emphasis added.) The court of appeals noted the statutory definition of
second degree murder encompasses a defendant who, without
premeditation, knowingly engages in conduct that will cause death or
serious bodily injury, and the conduct actually causes death. Id. at 540–41
¶ 7 (citing A.R.S. § 13-1104(A)(2) (2001)). Attempt, by contrast, concerns a
defendant who intentionally commits an act that is “any step in a course of
conduct planned to culminate in commission of an offense.” Id. at 541 ¶ 9
(citing § 13-1001(A)(2) (2001)) (emphasis omitted).
¶15 The trial court’s instruction on attempted second degree
murder was erroneous, the court of appeals reasoned, because it included
actions that knowingly would lead to serious bodily injury. Id. ¶¶ 10–11.
“Because the completed offense of second-degree murder requires the
result of death, it is not enough . . . that a person knows that his conduct
will cause ‘serious physical injury.’ A person who does not intend or know
that his conduct will cause death cannot be said to have taken action
‘planned to culminate’ in death.” Id. ¶ 10.
¶16 Despite Ontiveros, trial courts, including the one here, have
continued to give jury instructions that fail to limit the requisite mental state
for attempted second degree murder to intent to kill. See, e.g., Dickinson,
233 Ariz. at 530 ¶ 10., 233 Ariz. 527 (App. 2013); State v. Juarez-Orci, 236 Ariz.
520, 523–524 ¶¶ 9–13 (App. 2015). Indeed, the Revised Arizona Jury
Instructions (Criminal) do not contain a separate instruction for attempted
second degree murder. Rather, they define “attempt” with reference to the
particular crime involved. RAJI 10.01. Because second degree murder can
only be committed when death results, the intent to cause serious physical
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STATE V. FIERRO
Opinion of the Court
injury and reckless conduct language has sometimes been imported into
instructions for attempted second degree murder, despite a RAJI “Use
Note” to the contrary. Id. (“Attempted second degree murder requires
proof that the defendant either intended to or knowingly attempted to
cause the death of another . . . .”). Therefore, in an attempted second degree
murder case, neither intent to cause serious physical injury or recklessness
is enough. The defendant must have intended to kill. Ontiveros, 206 Ariz.
at 541 ¶ 10.
¶17 Here, the trial court recited the statutory language for second
degree murder, including an attempt to cause serious physical injury or
reckless conduct that created a grave risk of death. The State concedes the
instruction was erroneous because the instruction stated that Fierro could
be found guilty of attempted second degree murder without intending to
kill.
¶18 Addressing the first issue on which we granted review, both
the State and Fierro agree that a new instruction is necessary, and both
made constructive proposals. At oral argument, the State expressed no
objection to Fierro’s proposed jury instruction for attempted second degree
murder, which we now adopt with some modification. The instruction,
with alternative language supplied to fit the circumstances of a particular
charge, is as follows:
The crime of attempted second-degree murder requires proof
that the defendant, intentionally but without premeditation:
1. [engaged in conduct that defendant intended or believed
would result in the death of [another person] [unborn
child] if the circumstances relating to the crime were as the
defendant believed them to be]; [or]
2. [committed any act that was a step in a course of conduct
that the defendant intended or believed would cause the
death of [another person] [unborn child]]; [or]
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Opinion of the Court
3. [engaged in conduct intended to aid another person in
intentionally or knowingly causing the death of [another
person] [unborn child] in a manner that would make the
defendant an accomplice had the other person succeeded
in causing that death.]
¶19 We appreciate both parties’ diligence in suggesting language
to rectify an error that has persisted for too long. The language we approve
today correctly reflects the statutory definition of attempted second degree
murder, and trial courts should use this instruction in future cases.
II. PREJUDICIAL ERROR
¶20 When a defendant fails to object to a jury instruction at trial,
as occurred here, this Court “will not reverse unless the court committed
error that was both fundamental and prejudicial.” State v. Escalante, 245
Ariz. 135, 140 ¶ 12 (2018). As noted, the instruction constituted
fundamental error, but Fierro must still demonstrate the error prejudiced
him.
¶21 We discussed at length the applicable standards for
determining prejudice only four years ago in a unanimous opinion in
Escalante, and those standards control the outcome here. Fierro bears the
burden of proving prejudice. Id. at 142 ¶ 21. Establishing prejudice
requires a defendant to show, based on the unique facts of the case, that
“the error was so egregious that he could not possibly have received a fair
trial,” or, as relevant here, that absent the error “a reasonable jury… could
have reached a different [verdict].” Id. at 142 ¶ 21, 144 ¶ 29 (citation
omitted). The “could have” standard requires a showing far greater than a
metaphysical possibility and “necessarily excludes imaginative
guesswork.” Id. ¶ 31. The standard is not subjectively what this particular
jury might have concluded, but is rather an objective inquiry, requiring
Fierro to show “that without the error, a reasonable jury could have
plausibly and intelligently returned a different verdict.” Id. “A ‘reasonable
jury’ is ‘composed of persons of average intelligence,’” who use common
sense in evaluating the evidence and applying the court’s instructions. Id.
(quoting Citizens Utils. Co. v. Firemen’s Ins., 73 Ariz. 299, 302 (1952)).
Importantly, in reviewing whether a defendant has made the requisite
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STATE V. FIERRO
Opinion of the Court
showing, “an appellate court should examine the entire record, including
the parties’ theories [of the case].” Id. Moreover, “the amount of error-free
evidence supporting a guilty verdict is pertinent to that inquiry.” Id. ¶ 34.
¶22 The dissent effectively eschews our Escalante prejudice
framework and instead applies a sort of “super-fundamental error”
standard that comes close to a per se rule that an erroneous jury instruction
necessarily prejudices a defendant. Infra ¶¶ 42, 59. Our courts have never
applied such a rule. See, e.g., Dickinson, 233 Ariz. at 530–31¶¶ 12–13 (finding
no prejudice from fundamental error stemming from erroneous attempted
second degree murder instruction when the defendant’s defense did not
implicate the instruction); State v. Ruiz, 236 Ariz. 317, 325 ¶¶ 26–28 (finding
no prejudice when the incorrect instruction was not implicated by the
evidence).
¶23 The dissent makes its discontent with the Escalante prejudice
framework clear in its treatment of Dickinson, which it cites for holding that
instructional error that relieves the state of its burden of proving an element
of the offense is fundamental. Infra ¶ 44. No one disputes the faulty
instruction here constituted fundamental error. But the dissent overlooks
the very next, crucial passage from Dickinson: “Fundamental error alone is
not sufficient for reversal; [the defendant] must show resulting prejudice.”
233 Ariz. at 531 ¶ 13. Unlike the dissent, infra ¶ 58 (“some errors are per se
prejudicial”), short of an instructional error “so egregious that a defendant
could not possibly have received a fair trial,” see Escalante, 245 Ariz. at 141
¶ 20, we are not prepared to jettison the requirement that the defendant
show that an error actually prejudiced him in order to vacate his conviction.
¶24 Given the defendant’s heavy burden to prove prejudice, it “is
the rare case in which an improper instruction will justify reversal of a
criminal conviction when no objection has been made in the trial court.”
State v. Zaragoza, 135 Ariz. 63, 66 (1983) (quoting Henderson v. Kibbe, 431 U.S.
145, 154 (1977)). Here, the error-free evidence, combined with Fierro’s
defense theory and the State’s theory of the case, refutes the existence of
prejudice.
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STATE V. FIERRO
Opinion of the Court
¶25 An erroneous jury instruction could lead an objective,
reasonable jury to reach a different verdict if the error relates to the defense
against the charge. See Escalante, 245 Ariz. at 140 ¶ 12, 145–46 ¶¶ 40–42;
Juarez-Ocri, 236 Ariz. at 526 ¶ 22. The defense here was unaffected by the
faulty instruction. The evidence did not show, and Fierro did not argue,
that he intended to cause serious physical injury short of death. Had this
been the case, instructing the jury that this intent constituted attempted
second degree murder would have prejudiced him. But Fierro’s sole
defense was that he was engaged in self-defense: that he and J.H. were
struggling for a weapon and that Fierro was defending himself against the
attack. Because simply trying to protect himself is quite distinct from
intending to cause serious bodily injury, that defense was unaffected by the
error in the jury instruction. Indeed, given that self-defense is a justification
defense, had the jury believed Fierro’s version of events, it would have
acquitted him even considering the incorrect instruction. A.R.S. § 13-205
(“Justification defenses describe conduct that, if not justified, would
constitute an offense but, if justified, does not constitute criminal or
wrongful conduct.”).
¶26 Self-defense and an intent to cause serious bodily harm are
distinct concepts; attempting to prove the first does not lend support to the
second. Self-defense involves actions and circumstances that justify the
threat or use of force “when and to the extent a reasonable person would
believe that physical force is immediately necessary to protect himself
against the other’s use or attempted use of unlawful physical force.” A.R.S.
§ 13-404(A). The defendant’s subjective intent is immaterial; rather, the
defense is determined based on these statutory “objective standards.” See
State v. Carson, 243 Ariz. 463, 465 ¶ 9 (2018). By contrast, attempted second
degree murder requires proof of a specific, subjective mens rea. A.R.S.
§§ 13-1104(a)(2) (second degree murder), -1001(A)(2) (attempt).
¶27 By arguing self-defense, Fierro did not put his mens rea at
issue. Nonetheless, Fierro now attempts to conflate self-defense with
specific intent, which he claims is implicit in his testimony and his
attorney’s argument to the jury. Fierro and the dissent (infra ¶ 48) place
great weight on Fierro’s testimony that he was “just trying to get him away
from me,” but the context indicates that testimony was directed to his attack
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STATE V. FIERRO
Opinion of the Court
on P.P., not J.H., the victim of the attempted second degree murder. Indeed,
Fierro straddled J.H. on the floor of the trailer while repeatedly stabbing
him. Fierro testified that he left J.H. to chase P.P. because “he had already
passed, you know, had already passed. I didn’t see [J.H.] trying to hurt me
no more.” The dissent suggests that statement implied Fierro intended to
seriously injure but not kill J.H., but the statement on its face indicates that
Fierro thought he had killed J.H., and we “resolve all reasonable inferences
against the defendant” on appeal. Bible, 175 Ariz. 549 at 595.
¶28 The dissent suggests that we “misconstrue[] the jury’s
rejection of Fierro’s self-defense claim as an implicit finding of his intent to
kill.” Infra ¶ 43. Not at all. Rather, self-defense was Fierro’s sole defense,
which if believed by the jury would have led to acquittal regardless of
whether Fierro intended to kill or merely injure J.H. But self-defense does
not suggest an intent to cause serious bodily harm that implicates the
erroneous instruction. Fierro’s post hoc efforts to convert his sole theory of
defense into another, different defense are unavailing.
¶29 Of course, to determine whether Fierro met his burden to
show prejudice, we examine not only what he and his lawyer presented at
trial, but the evidence as a whole and the State’s theory of the case.
Dickinson, 233 Ariz. at 531 ¶ 13 (“In determining whether a defendant has
shown prejudice, the court considers the parties’ theories, the evidence
received at trial and the parties’ arguments to the jury.”). As the State
points out, even under the erroneous instruction here, the State was
required to show not only that Fierro caused serious physical injury, but
that this act was a “step in a course of conduct planned to culminate in
commission of an offense.” A.R.S. § 13-1001. The pertinent offense is
second degree murder, which requires proof that a defendant “caused the
death of another person.” See § 13-1104(A). Logically, a jury could not find
that the defendant took a step planned to culminate in second degree
murder without intending the victim’s death. 2
2 To the extent that this logic is disregarded in the court of appeals opinion
in Juarez-Orci, 236 Ariz. at 520 ¶ 14, we disavow that reasoning. See also
infra ¶ 54 (distinguishing Juarez-Orci).
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STATE V. FIERRO
Opinion of the Court
¶30 By contrast, an attempt based on intent to inflict serious injury
would constitute aggravated assault. Attempted second degree murder
cannot be committed based on the mens rea for aggravated assault. It can
only be committed if the defendant intended to kill but failed. The
erroneous instruction muddled this distinction, making it fundamentally
erroneous, but the requisite mens rea for attempted murder remained a
necessary element for conviction, which the prosecutor recognized and
argued to the jury, rendering the error non-prejudicial under the facts of
this case.
¶31 The State also did nothing to exploit the erroneous
instruction. Contrast, e.g., Ontiveros, 206 Ariz. at 543 ¶ 19 (finding the state
exacerbated the prejudicial nature of the fundamentally erroneous
instruction by arguing the jury could convict on attempted second degree
murder based on physical injury or death during closing arguments). To
the contrary, the State’s theory of the case and articulation of what it had to
prove to obtain a conviction were consistent and unequivocal: Fierro
intended to kill J.H.
¶32 Fierro points to the State’s description in its closing argument
of the intent to kill as a “trickier question,” suggesting the State implicitly
acknowledged that Fierro could have been acting in self-defense. Read in
context, rather than plucked out of a lengthy closing argument, it is obvious
that by “trickier,” the State meant it presented a more complex fact
determination than the other charged crimes. The prosecutor argued:
Attempted second-degree murder is a trick[i]er question. And
it’s one that you should take more seriously. It’s one that you
should be really thoughtful about in this case. Because it
requires you to come to a conclusion that the State has proven
beyond a reasonable doubt that Sergio’s intent was to kill him, not
that his intent was to stab him, not that his intent was to injure
him, that his intent was to kill him, to cause the result of his death.
That’s pretty serious. It’s a pretty serious allegation and crime
to be throwing around when you don’t have any obvious
motive . . . . [Y]ou have to come to the conclusion that he intended
[J.H.’s] death when he was assaulting him . . . . And the first stab
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STATE V. FIERRO
Opinion of the Court
gets him in the neck, also an important fact when trying to
decide hey, what is he trying to do in there? What is he trying
to do in there in the RV? He gets him in the neck. Guy starts
bleeding immediately. Okay. [J.H. is] bleeding from the very
first stab. And what is it that Sergio does next? Well, stabs him
again, and again, and again, and he keeps trying to stab
him . . . . Also important, why did Sergio stop? Why did
Sergio stop the attack? Did he say oh, enough, mission
accomplished? No. He stopped the attack because [P.P.] sticks
his head in. And he decides to go chase [P.P.] . . . . He was
there to finish him off. He was there to finish the job. And his
behavior at that moment shines light back to what was he
trying to do in that RV. His behavior at that second address
shows you what his intent was in that RV and that was to kill
[J.H.]. And that’s why he’s guilty of attempted murder . . .
What he was doing was he was assaulting him but he did so with
the intent to murder him. And because of that he’s guilty of all
charges.
(Emphasis added.)
¶33 The State was unequivocal throughout the trial that it had to
demonstrate Fierro’s intent to kill—and it was equally emphatic that the
evidence could yield no other conclusion. To be sure, a prosecutor’s
accurate statement of the law cannot correct a court’s erroneous statement.
Taylor v. Kentucky, 436 U.S. 478, 489 (1978). But it can ameliorate it, such
that it may be exceedingly difficult for the defense to prove prejudice under
fundamental error review. See, e.g., State v. Bruggeman, 161 Ariz. 508, 510
(App. 1989) (concluding the “error was not fatal” after determining “the
final arguments . . . clarified any possible misunderstanding” (internal
citations omitted)); State v. Johnson, 205 Ariz. 413, 417 ¶ 11 (App. 2003)
(finding an erroneous instruction “in conjunction with the closing
arguments of counsel” warranted reversal); Dickinson, 233 Ariz. at 533 ¶ 22
(holding that no prejudice occurred in part because the prosecutor
consistently emphasized the jury had to find an intent to kill); cf. Ontiveros,
206 Ariz. at 543 ¶ 19 (emphasizing the State repeatedly suggested the
defendant acted with the intent to cause serious physical injury or death).
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Opinion of the Court
¶34 The State’s unvarying theory of the case here matters greatly.
The prosecutor stated no less than ten times—in both its opening statement
and closing argument—that it had to, would, and did prove Fierro’s intent
to kill. The prosecutor said nothing to contradict or undermine his entirely
accurate description of the State’s burden and the requisite jury finding.
Even though the court improperly instructed the jury, the prosecutor
repeatedly made clear the jury had to find an intent to kill, and consistently
directed the jury to evidence presented at trial that proved this element of
the offense. Far from carrying his burden, Fierro fails to show prejudice.
¶35 All this makes especially pertinent the trial court’s instruction
to the jury that “after you have deliberated and determined the facts, you
may then find that some instructions no longer apply. You must then
consider the instructions that do apply together with the facts as you have
determined them.” We can presume the jurors followed this instruction
during their deliberations and disregarded the erroneous parts of the
attempted second degree murder instruction because an intent to cause
serious bodily harm simply does not apply to the charged offense; it neither
matched the evidence nor the defense theory of the case, because the State’s
entire case relied upon proving an intent to kill. Under these circumstances,
Fierro fails to meet his burden to prove the error prejudiced him.
¶36 The dissent (infra ¶ 45) cites State v. Felix, 237 Ariz. 280, 285
¶ 16 (App. 2015), for the proposition that jurors are presumed to follow jury
instructions. However, the court also observed that counsel’s arguments
may “cure or obviate instructional error or ambiguity.” Id. ¶ 18. Fierro’s
defense, which failed to identify the question of intent to cause physical
injury, combined with the State’s unrelenting focus on Fierro’s intent to kill,
the correct language in the jury instruction that second degree murder must
result in death, and the instruction to disregard inapplicable instructions,
rendered the erroneous part of the jury instruction inapplicable. As we
stated in Escalante, “the ‘could have’ standard is not easily satisfied. In
keeping with Henderson’s pronouncement that appellate relief for
fundamental error occurs in ‘rare cases’ and such error is ‘curable only via
a new trial,’ the ‘could have’ inquiry necessarily excludes imaginative
guesswork.” 245 Ariz. at 144 ¶ 31. In short, Fierro’s prejudice claim is
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Opinion of the Court
“imaginative guesswork,” and falls short of meeting his burden of
persuading us that he suffered prejudice.
¶37 Fierro argues that the result here should be guided by
Juarez-Orci. There, the court of appeals reversed a conviction for attempted
second degree murder based on an erroneous instruction like the one here.
236 Ariz. at 521 ¶ 9, 527 ¶ 23. The state’s theory was that the defendant
attempted to kill the victim. Id. at 526 ¶ 19. However, the evidence
included testimony that the defendant had threatened to “beat up” the
victim. Id. ¶ 20. The defense’s theory was that the defendant merely
intended to harm the victim, not kill her. Id. ¶ 21. The court concluded that
“[t]he erroneous instruction therefore related directly to [the defendant’s]
defense,” id. ¶ 22, and thus that the jury reasonably could have based its
conviction on the incorrect instruction, id. ¶ 23. Here, for the reasons stated
above, supra ¶¶ 21–34, Fierro can point to no evidence that similarly would
have implicated his intent to inflict severe bodily injury. Hence the incorrect
instruction was inapplicable.
¶38 We find this case more like Dickinson. In that case, also
involving a similar erroneous jury instruction, the state’s consistent theory
was intent to kill, and its opening statement “contain[ed] no suggestion that
[the defendant] was trying to cause the victim serious physical injury.” 233
Ariz. at 531 ¶ 14. The defendant’s theory was mistaken identity. Id. ¶ 15.
The state presented evidence disproving that defense and also argued that
the defendant did not act in self-defense. Id. at 532 ¶¶ 19, 21. Although the
state paraphrased the erroneous instruction in its closing argument, id. ¶ 19,
it “never deviated from its consistent theme that [the defendant] intended
to kill the victim.” Id. at 533 ¶ 21. The court of appeals accordingly held
that the defendant had not proved prejudice and it sustained his conviction.
Id. ¶¶ 22–23.
¶39 In this case, the State’s theory, supported by the evidence
presented at trial and its closing argument to the jury, was even more
consistent and forceful. Unlike Ontiveros, in which a defendant charged
with attempted second degree murder based on an intent to kill or cause
serious physical injury “may have been convicted on a non-existent theory
of liability,” 206 Ariz. at 542 ¶ 17, here the State proceeded on a solitary
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Opinion of the Court
theory: that Fierro intended to kill his victim. The evidence did not support
a conclusion that Fierro instead intended to inflict serious physical injury
on J.H., and defense counsel did not argue otherwise to the jury. Indeed, it
did not inject Fierro’s mental state into the record at all. 3
¶40 Based on the evidence, the nature of the charged offense, the
State’s theory of the case, and the defense presented to the jury, Fierro has
not shown that the jury could have plausibly and intelligently convicted
him of attempted second degree murder based on an intent to cause serious
physical injury rather than a plan to cause J.H.’s death.
CONCLUSION
¶41 We vacate the court of appeals’ decision and affirm Fierro’s
conviction and sentence.
3 The dissent (infra ¶ 59) cites a jury finding in response to interrogatories
following the verdict that the defendant’s conduct “involved the intentional
or knowing infliction of serious physical injury” to support its belief that
the jury may have been swayed by the erroneous instruction. Fierro did
not argue this finding was meaningful. He likely refrained from bringing
this finding to our attention because, as the dissent acknowledges, these
interrogatories were for purposes of sentence enhancement, see A.R.S. §§
13-702, -704, and are distinct from the process of finding guilt.
16
STATE V. FIERRO
JUSTICE LOPEZ, joined by JUSTICES MONTGOMERY and KING, Dissenting
LOPEZ, J., joined by JUSTICES MONTGOMERY and KING, dissenting:
¶42 Before we deprive a citizen of liberty—even one who is likely
to be lawfully convicted—should we not insist that a jury receive
instructions that preclude the risk of a conviction based upon a non-existent
crime and do not relieve the state of its constitutional burden to prove its
case? The majority’s analysis and conclusion that, on this record, Fierro
fails to establish prejudice because a reasonable jury could not have reached
a different verdict absent the instructional error establishes an unwarranted
and perilous tolerance for instructional error that relieves the State of its
burden. We respectfully dissent.
I.
¶43 We concur in the majority’s conclusion that the instructional
error in this case is fundamental, supra ¶¶ 1, 20, and we embrace its newly-
crafted attempted second degree murder instruction, supra ¶ 18, which
should end twenty-five years of repeated instructional error in such cases.
But we part ways with the majority’s prejudice analysis because it
(1) diminishes the import of instructional error relieving the State of its
burden; (2) improperly emphasizes the strength of the State’s case;
(3) misconstrues the jury’s rejection of Fierro’s self-defense claim as an
implicit finding of his intent to kill; (4) minimizes or overlooks critical
record evidence concerning Fierro’s intent; (5) overstates the remedial
value of a prosecutor’s correct statement of the law and misapprehends the
significance of the jury instruction concerning instructions that “no longer
apply”; and (6) relies upon readily distinguishable cases to justify a
conclusion inconsistent with our courts’ fundamental error prejudice
jurisprudence.
¶44 The majority’s analysis commences from a fundamentally
faulty foundation because it disregards the unique significance of
instructional error that relieves the State of its burden to prove its case. See,
e.g., State v. Dickinson, 233 Ariz. 527, 531 ¶ 12 (App. 2013) (holding that an
instruction that improperly relieves the state of its burden of proving an
element of an offense is fundamental because it goes to the foundation of
the case); State v. Juarez-Orci, 236 Ariz. 520, 526 ¶ 17 (App. 2015) (same). As
26
STATE V. FIERRO
JUSTICE LOPEZ, joined by JUSTICES MONTGOMERY and KING, Dissenting
we recently reiterated, because “[t]he Constitution requires the government
prove to a jury every criminal charge beyond a reasonable doubt,” the
gravity of relieving the state of its burden to prove its case is manifest. State
v. Murray, 250 Ariz. 543, 550 ¶ 22, 551 ¶ 27 (2021) (finding fundamental
prejudicial error where, despite a proper jury instruction, the prosecutor
misstated the reasonable doubt standard). Murray illustrates this Court’s
low tolerance for risk of conviction based upon a jury’s erroneous
apprehension of the law concerning the state’s burden even when the jury
has been properly instructed. Id. Here, the risk of unlawful conviction is of
a greater order of magnitude because the jury instructions unambiguously
permit conviction based on a non-existent crime with a lower burden of
proof.
¶45 The majority drifts further from our prejudice jurisprudence
as it focuses on the strength of the State’s case and weakness of the defense
rather than the record evidence that the defense placed Fierro’s mental
state—intent to kill—at issue in the case. See, e.g., supra ¶ 24 (“Here, the
error-free evidence, combined with Fierro’s defense theory and the State’s
theory of the case, refutes the existence of prejudice.”). But “the sufficiency
of the evidence is not the test of whether the fundamentally erroneous jury
instruction prejudiced [a defendant].” State v. Felix, 237 Ariz. 280, 287 ¶ 22
(App. 2015). The prejudice test is also not “whether this court thinks
another jury, properly instructed, will probably find [a defendant] guilty
again. Rather, the test is whether a reasonable jury, properly instructed,
could have found [a defendant] not guilty of attempted second-degree
murder.” Id. Here, by centering its analysis on the strength of the State’s
case and weakness of Fierro’s self-defense claim, the majority strays from
the central focus of the prejudice inquiry. The fact that a jury likely will
convict Fierro if properly instructed is irrelevant under the prejudice
analysis.
¶46 Additionally, the majority compounds its error by
misconstruing the jury’s rejection of Fierro’s self-defense claim as an
implicit finding of his intent to kill J.H. In other words, the majority seems
to assert that the jury had a binary choice: (1) credit Fierro’s self-defense
theory and acquit or (2) find that he intended to kill the victim. Supra ¶ 25.
This is a logical fallacy that the State seemingly recognizes in its
27
STATE V. FIERRO
JUSTICE LOPEZ, joined by JUSTICES MONTGOMERY and KING, Dissenting
supplemental briefing. (“Of course, the fact the jurors rejected Fierro’s self-
defense claim does not in and of itself establish a lack of prejudice, but it is
another relevant factor in the prejudice analysis . . . .”). Self-defense, as a
justification defense, renders otherwise unlawful conduct permissible. See
A.R.S. §§ 13-404(A), -205(A). As applicable here, Fierro would have been
justified in using physical force against J.H. “when and to the extent a
reasonable person would believe that physical force [was] immediately
necessary to protect himself against [J.H.’s] use or attempted use of
unlawful physical force.” 13-404(A). Thus, contrary to the majority’s
assumption, the jury’s rejection of Fierro’s self-defense claim means only
that the jury did not find Fierro’s use of force justified in the first instance
or in degree. It offers no other insight into the jury’s determination of
whether Fierro intended to kill J.H. As instructed, the jury could have
rejected Fierro’s self-defense claim and still convicted him of attempted
second degree murder based on the erroneous theory that he intended to
cause serious physical injury. Consequently, although the jury’s rejection
of Fierro’s self-defense justification does not inform the prejudice analysis,
it underscores that Fierro’s intent to kill remained the sole issue for the jury
to resolve.
¶47 We offer a final point on the confluence of a self-defense claim
and an attempted second degree murder charge. The majority asserts that
evidence and argument proffered to establish self-defense is immaterial to
the jury’s finding of intent to kill—the mens rea of attempted second degree
murder. Supra ¶ 26. We disagree. The majority erroneously concludes
that, because Fierro’s subjective intent is immaterial to prove his self-
defense claim, the jury may not consider such evidence to determine if the
state proved his intent to kill. The majority offers no authority for the
proposition that a jury, upon rejecting a defendant’s claim of self-defense
to attempted second degree murder, may not consider all relevant evidence
and argument when determining a defendant’s guilt. Fierro’s subjective
intent, expressed through his testimony, is certainly material to the jury’s
finding concerning his intent to kill.
¶48 Although the central issue on appeal is whether the record
evidence placed Fierro’s mental state at issue, the majority claims the
defense “did not inject [his] mental state into the record at all,” supra ¶ 39,
28
STATE V. FIERRO
JUSTICE LOPEZ, joined by JUSTICES MONTGOMERY and KING, Dissenting
and gives the record short shrift. The majority errs on both counts. During
his trial testimony, Fierro repeatedly asserted that he attacked J.H. and P.P.
in self-defense. For example, in response to a juror question concerning
why he ceased his attack on J.H., Fierro responded, “[H]e had already
passed, you know, had already passed. I didn’t see [J.H.] trying to hurt me
anymore.” In context, Fierro’s testimony is reasonably and fairly
interpreted as meaning that he stopped attacking J.H. when he (J.H.) exited
the trailer. This contradicts the claim that Fierro intended to kill and
squarely places his mental state at issue. Similarly, in referring to either J.H.
or P.P., Fierro testified that his motive and purpose for the assault was that
he was “just trying to get him away from me.” This testimony, too, can be
reasonably and fairly construed as an assertion that his intent was not to
kill but rather to deter an attack. Moreover, in closing argument, Fierro’s
counsel repeatedly invoked Fierro’s mental state and, thus, his intent by
emphasizing his claim that he merely acted in self-defense and “was just
trying to get him away.” Critically, Fierro’s counsel did not argue that his
comment concerned P.P. rather than J.H. A fair interpretation of this
evidence and argument compels the conclusion that the defense squarely
placed Fierro’s mental state at issue in the case.
¶49 The majority also affords the prosecutor’s consistent reliance
on an intent to kill theory undue significance in the prejudice analysis.
Although it concedes that a prosecutor’s statement of the law cannot correct
a court’s erroneous instruction, it cites Dickinson and Bruggeman for the
proposition that “it can ameliorate it, such that it may be exceedingly
difficult for the defense to prove prejudice,” supra ¶ 33, and ultimately
concludes that “[t]he State’s unvarying theory of the case” effectively
rendered the erroneous part of the second degree murder instruction
inapplicable, supra ¶¶ 34–36. Rather than bolster the majority’s reliance on
the ameliorative effect of a prosecutor’s correct statement of the law, these
cases refute it.
¶50 Dickinson offers the majority no cover. At best, Dickinson
supports the proposition that a prosecutor’s correct recitation of the law is
a prerequisite to refuting a defendant’s claim of prejudice from a jury
instruction’s fundamental error, rather than possessing near absolute
salutary force. 233 Ariz. at 533 ¶ 22; see also Felix, 237 Ariz. at 285 ¶ 18,
29
STATE V. FIERRO
JUSTICE LOPEZ, joined by JUSTICES MONTGOMERY and KING, Dissenting
286 ¶ 20 (finding prejudicial error after rejecting the state’s contention that
its “vigorous pursuit” of a correct legal theory rendered the erroneous jury
instruction immaterial). State v. Bruggeman, 161 Ariz. 508, 510 (App. 1989),
is also distinguishable because the court’s finding of no prejudice was based
primarily on the unlikelihood that the instruction would mislead the jury
rather than the curative effect of the prosecutor’s correct statement of the
law. Id. (“Although the last sentence of the instruction is not drafted as
artfully as it should be, we find the error was not fatal when the sentence is
read in the context of the whole instruction.”). Notably, the majority fails
to cite to a single case from this Court imbuing a prosecutor’s statement of
the law with such remedial import.
¶51 In an attempt to support its conclusion that the erroneous
instruction did not prejudice Fierro, the majority contends that the
prosecutor’s repeated admonitions that the jury must find intent to kill cued
the jury that it should disregard the flawed instruction because another
instruction stated “after you have deliberated and determined the facts you
may then find that some instructions no longer apply.” Supra ¶¶ 34–35.
The majority offers no authority for what appears to be a rather unorthodox
and ambitious application of this collateral instruction. On its face, the
instruction invites jurors to disregard inapplicable instructions. But here,
the entire attempted second degree murder instruction remained
applicable and relevant to the case until the jury returned its verdict because
the jury had to determine whether Fierro’s conduct met one of the three
theories for conviction (intent to kill, recklessness, or conduct that he knew
would result in serious physical injury). The majority’s reasoning
impermissibly assumes that the jury never considered the flawed bases for
conviction—that Fierro acted recklessly or knew that his conduct would
cause serious physical harm. Felix, 237 Ariz. at 285 ¶ 17 (“In the absence of
evidence in the record demonstrating that the jury failed to follow its
instructions, we presume the jury did so here.”). Moreover, the jury also
was instructed that “what the lawyers say is not evidence” but may help
them “understand the law and the evidence,” which the majority ignores
to avoid the paradox of relying on the prosecutor’s statements which the
jury was advised to take with a grain of salt. On this record, the majority’s
musings on the role of inapplicable instructions are, at best, speculative.
30
STATE V. FIERRO
JUSTICE LOPEZ, joined by JUSTICES MONTGOMERY and KING, Dissenting
¶52 Endeavoring to shore up its finding of no prejudice, the
majority offers a cursory recounting of Dickinson in an attempt to cast its
reach over this case. Supra ¶ 38. But Dickinson refutes the majority’s
prejudice conclusion. The majority correctly notes the similarities in these
cases—similar erroneous jury instruction, the state’s consistent theory was
intent to kill, the state presented evidence disproving the primary defense,
and the state argued that the defendant did not act in self-defense—but it
conspicuously ignores the implications of the differences. For example,
critical to Dickinson’s finding of no prejudice was the defendant’s defense
of mistaken identity, which fell absolutely silent on intent, Dickinson,
233 Ariz. at 531 ¶ 15; testimony that the defendant “threatened the victim
with an ax and told the victim he would kill him minutes before” twice
driving over him with a truck, id. ¶¶ 4, 16; at no time did the defendant
claim “that he was involved but did not intend to kill the victim,” id. at 532
¶ 18; and at no time did the defendant’s counsel in closing implicate the
defendant’s mental state, id. ¶ 20.
¶53 Here, Fierro’s defense was self-defense, which entailed his
claim that he used reasonable force to defend himself and squarely injected
his intent into the case, certainly through his testimony and counsel’s
argument; there was no testimonial evidence that Fierro intended to kill J.H.
and, in fact, the State conceded that motive for the attack was elusive and
that attempted second degree murder presented a “trickier question” (or as
the majority interprets the phrase—“a more complex fact determination,”
supra ¶ 32); Fierro testified that he ceased his attack on J.H. inside the trailer
when the threat from J.H. abated, indicating an absence of intent to kill; and
Fierro’s counsel, in closing, implicated Fierro’s mental state when she
repeatedly argued that he was merely defending himself, a clear
implication that he did not intend to kill J.H. Dickinson demonstrates the
majority’s error because its no prejudice finding is premised on the absence
of precisely the evidence and argument presented here. Id. at 533 ¶ 22 (“The
[s]tate’s theory was that Dickinson intended to kill the victim; Dickinson’s
defense was mistaken identity . . . . Neither of these competing views suggests
that Dickinson intended to cause serious injury to the victim (as opposed to kill
him), which is the fundamental error in the jury instructions. Based on the
particular facts of this case[,] . . . Dickinson failed to prove resulting
prejudice.” (emphasis added)). Thus, Dickinson illustrates that the existence
31
STATE V. FIERRO
JUSTICE LOPEZ, joined by JUSTICES MONTGOMERY and KING, Dissenting
of prejudice hinges not on the weight of the evidence of guilt, but on
whether any evidence relied on by the defense implicated the erroneous
jury instruction regarding the defendant’s mental state at the time of the
incident.
¶54 The majority’s effort to distinguish Juarez-Orci is equally
unpersuasive. There, as here, the defendant was charged with attempted
second degree murder for inflicting a wound to the victim’s face and
“several sizable wounds, including a wound to [the victim’s] neck that
could have been lethal had it been deeper.” Juarez-Orci, 236 Ariz. at 526
¶ 20. The victim also testified she believed the defendant “was going to kill
[her].” Id. The majority contends the evidence that the defendant
threatened to “beat up” the victim rather than kill her distinguishes this
case because the erroneous instruction directly related to the defense. Supra
¶ 37. But here, as discussed, Fierro’s testimony and his counsel’s argument
similarly placed his intent at issue. The majority’s failure to recognize such
evidence does not credibly wrest this case from Juarez-Orci’s rationale, and
the jury’s rejection of Fierro’s primary self-defense theory does not preclude
a finding of prejudice. See, e.g., Felix, 237 Ariz. at 286 ¶ 21 (noting that
“[a]lthough defense counsel’s primary argument was that Felix was not
present and had an alibi, counsel also asserted in closing an alternative
defense based on the mindset of the shooter,” that he did not necessarily
intend to kill).
¶55 Dickinson and Juarez-Orci illustrate the proper prejudice
analysis following fundamental instructional error. Unlike State v.
Escalante, 245 Ariz. 135, 144 ¶ 34 (2018), which assessed prejudice arising
from the erroneous admission of evidence and naturally emphasized “the
amount of error-free evidence supporting a guilty verdict,” an instructional
error case, particularly one in which the state is relieved of its burden,
centers on the impact of the erroneous instruction. Thus, although the
evidence may be pertinent to the court’s review of the entire record, the
most important inquiry involves whether the flawed instruction implicated
the defendant’s theory and could have misled the jury. For that reason,
despite overwhelming evidence of intent to kill in both Dickinson and
Juarez-Orci, prejudice was established in Juarez-Orci because the defense
32
STATE V. FIERRO
JUSTICE LOPEZ, joined by JUSTICES MONTGOMERY and KING, Dissenting
implicated the defendant’s mental state but was not established in Dickinson
because the defense was silent on intent.
¶56 The majority misapplies our fundamental error prejudice
analysis, overlooks or disregards critical evidence in the record, and strains
our jurisprudence to reach an untenable finding of no prejudice. The
inquiry under Dickinson, Juarez-Orci, and Felix is straightforward—did the
defense present evidence and argument that placed Fierro’s mental state at
issue? If so, the erroneous attempted second degree murder instruction
was prejudicial. The majority asserts that Fierro’s defense was “unaffected
by the faulty instruction” because “[t]he evidence did not show, and Fierro
did not argue, that he intended to cause serious physical injury short of
death.” Supra ¶ 25. This misses the point and turns the prejudice analysis
on its head. Fierro did not have to affirmatively present evidence that he
intended to cause serious physical injury or otherwise invite the jury to
convict on that theory to implicate the erroneous instruction, he merely had
to convey that he did not intend to kill, which would have prompted the jury
to consider the other erroneous grounds for an attempted second degree
murder conviction. Dickinson, 233 Ariz. at 532 ¶ 18 (“Moreover, at no time
did Dickinson claim that he was involved but did not intend to kill the
victim or knew that his conduct would cause serious physical injury but not
death.” (emphasis added)). To that end, Fierro testified, and his counsel
argued, that he merely acted in self-defense and that he ceased his attacks
on J.H. and P.P. when he perceived an end to the threats. The gravamen of
this testimony and argument is reasonably and fairly understood to mean
that Fierro did not intend to kill the victims but rather intended to inflict
physical injury until he perceived an end to the threats. This fact, alone,
compels a finding of prejudice because the erroneous instruction
necessarily implicated Fierro’s defense. Viewed through the proper
analytical lens, the strength of the State’s case and the weakness of Fierro’s
self-defense claim assume marginal relevance because they do not concern
whether Fierro’s testimony and his counsel’s argument implicated his
mental state, nor do they foreclose a jury finding that Fierro did not intend
to kill. In other words, to find an absence of prejudice, we must
find—unlike here—that the instructional error involved an uncontested
issue.
33
STATE V. FIERRO
JUSTICE LOPEZ, joined by JUSTICES MONTGOMERY and KING, Dissenting
¶57 We note the majority’s curious embrace of the State’s
argument that prejudice could not exist in this case because, even under the
erroneous instruction, “[l]ogically, a jury could not find that the defendant
took a step planned to culminate in second degree murder without
intending the victim’s death.” Supra ¶ 29. If a “logical” juror reading this
instruction “could not” have made a finding based on the erroneous intent
standard, why have our courts, the State, and even the majority here so
readily concluded the intent standard is erroneous and that the error is
fundamental? In its attempt to bolster its no-prejudice conclusion using a
no-fundamental-error argument, the majority rejects, in a cursory footnote,
Juarez-Orci’s four-paragraph explication of the myriad reasons the
instructions as a whole fail to mitigate risk of jury confusion based on the
same erroneous instruction in this case. 236 Ariz. at 520 ¶¶ 13–16; supra ¶
29. We depart with the majority’s position because we find Juarez-Orci’s
reasoning not just persuasive, but compelling.
¶58 Finally, the majority asserts that we have “effectively
eschew[ed] our Escalante prejudice framework” and devised “a sort of
‘super-fundamental error’ standard that comes close to a per se rule that an
erroneous jury instruction necessarily prejudices a defendant.” Supra ¶ 22.
We have done no such thing. To be clear, our analysis does not diminish
Escalante; rather, it follows its framework and focuses on this instructional
error as applied to this and similar cases. The majority seemingly pursues,
under the guise of the Escalante framework, rarity in finding reversable
error as an end unto itself. Supra ¶ 24. But rarity is an observation, not a
legal doctrine. Cf. State v. Valencia, 241 Ariz. 206, 212 ¶ 30 (2016) (Bolick, J.,
concurring) (“We should treat the Court’s forecast that irreparable
corruption will not be found in the ‘vast majority’ of cases as speculative
and dictum.”). And although we agree that we rarely find reversible error,
even with fundamental instructional error, our courts have routinely found
reversible error when considering precisely the erroneous attempted
second degree murder instruction at issue here. Indeed, in these
circumstances, reversible error is the rule rather than the exception. And
for good reason. Trial errors, including instructional errors, are not
fungible. Escalante, 245 Ariz. at 144 ¶ 29 (“Establishing prejudice from
fundamental error varies depending on the nature of the error and the
unique case facts.”). In fact, the Escalante framework expressly
34
STATE V. FIERRO
JUSTICE LOPEZ, joined by JUSTICES MONTGOMERY and KING, Dissenting
contemplates and acknowledges that some errors are per se prejudicial. Id.
at 140–41 ¶¶ 16, 20. Although we stop short of finding that the erroneous
instruction here is always prejudicial (and we do not comment on other
instructional errors as the majority erroneously asserts), allowing a jury to
potentially convict a defendant on a non-existent legal theory for a crime
that does not exist and that relieves the state of its burden to prove its
case—and in particular, the sole contested issue at trial—is one of the
gravest failings of our system. We disregard fundamental errors of this
nature at our peril.
II.
¶59 Despite the majority’s misplaced confidence in the strength of
the case and the jury’s verdict, we are left to ponder the jury’s report to the
trial court during deliberations that it may have been deadlocked on a
single unspecified count before returning guilty verdicts on all counts. Id.
at 144 ¶ 32 (“Because that jury and a hypothetical ‘reasonable jury’ share
the same presumptive traits, however, any questions posed by jurors
during trial or deliberation may be pertinent in applying the standard
objectively.”). Could the jury have convicted Fierro for attempted second
degree murder based upon a finding that his conduct was reckless or he
knew it would cause “serious physical injury”? Of course. How could it
not? After all, the jury received written and oral instruction to that effect,
Fierro admitted that he inflicted serious physical injuries on J.H., and the
verdict form on this count included the jury’s express finding, albeit
technically upon finding Fierro guilty of attempted second degree murder,
that the offense “involved the intentional or knowing infliction of serious physical
injury” on the victim. In other words, from beginning to end, the specter of
an erroneous verdict permeated this case: the jury was instructed that it
may convict Fierro based on serious physical injury and was even required
to make such sentencing findings on this theory in its verdict form, which
was available to the jury during its entire deliberations. The risk of an
erroneous verdict comfortably exceeds the “metaphysical possibility” or
“imaginative guesswork” discounted in Escalante. Id. at 142 ¶ 31; supra ¶
21. Indeed, it is the majority’s conclusion that rests on metaphysical
possibility and is the product of imaginative guesswork. Here, as in Felix,
in light of the erroneous instruction, without doubt “the jurors could have
stopped deliberations after concluding that [the defendant] intended to
35
STATE V. FIERRO
JUSTICE LOPEZ, joined by JUSTICES MONTGOMERY and KING, Dissenting
cause serious physical injury.” 237 Ariz. at 287–88 ¶ 24. Thus, as the court
of appeals determined in Felix, we “cannot conclude that no reasonable
jury, properly instructed, could have declined to convict [the defendant] of
attempted second degree murder.” Id.
¶60 Our justice system relies on our courts to serve as the
guardians of our citizens’ rights and custodians of the rule of law. Rather
than endeavor to rationalize and minimize manifest fundamental error, as
we fear we have done today, we must incentivize all parties in our criminal
justice system to strive to do better, including to more carefully review jury
instructions. To vindicate Fierro’s right to a fair trial and to reduce the risk
of such fundamental errors in the future, we would vacate the attempted
second degree murder conviction and remand for a new trial—one in which
we would not be left to speculate whether a conviction was predicated on
a non-existent legal theory for a crime that our law has disavowed and a
jury instruction which relieved the State of its burden to prove its case to a
jury beyond a reasonable doubt.
36
APPENDIX