Opinion
No. 1 CA-SA 15-0034
02-26-2015
STATE OF ARIZONA ex rel. WILLIAM G. MONTGOMERY, Maricopa County Attorney, Petitioner, v. THE HONORABLE JOSE PADILLA, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, SKY NEAL, Real Party in Interest.
COUNSEL Maricopa County Attorney's Office, Phoenix By Catherine Leisch Counsel for Petitioner Kenneth S. Countryman, P.C., Tempe By Kenneth S. Countryman Counsel for Real Party in Interest
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Petition for Special Action from the Superior Court in Maricopa County
No. CR2014-132260-001
The Honorable Jose S. Padilla, Judge
JURISDICTION ACCEPTED, RELIEF GRANTED COUNSEL Maricopa County Attorney's Office, Phoenix
By Catherine Leisch
Counsel for Petitioner
Kenneth S. Countryman, P.C., Tempe
By Kenneth S. Countryman
Counsel for Real Party in Interest
DECISION ORDER
Judge Maurice Portley delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Jon W. Thompson joined. PORTLEY, Judge:
¶1 The Real Party in Interest Sky Neal was charged with aggravated assault, a dangerous offense, unlawful discharge of a firearm, a dangerous offense, and misconduct involving weapons. The trial proceeded and prior to closing arguments the superior court judge advised the parties that he intended to give a certain instruction on aggravated assault. The State unsuccessfully objected to the proposed addendum to the aggravated assault instruction. After the court denied the State's request for a stay, the State filed a special action petition and sought a stay to resolve the issue. The stay was granted before closing argument in the case.
The portion of the proposed instruction the State objected to was as follows: "If you do not unanimously agree that the State has proven beyond a reasonable doubt each element of Aggravated Assault, then you must find the Defendant not guilty."
This court accelerated the briefing on the issue and has received the response and reply. The State has also requested an accelerated decision and we grant the motion by this decision.
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¶2 Because the State does not have a remedy on appeal and the issue is one of law, we exercise our discretion and accept special action jurisdiction. See State v. Lee, 236 Ariz. 377, ___, ¶ 9, 340 P.3d 1085, 1088-89 (App. 2014); State v. Dawley, 201 Ariz. 285, 286, ¶ 2, 34 P.3d 394, 395 (App. 2001).
¶3 In State v. LeBlanc, our supreme court provided direction when giving a lesser-included instruction. 186 Ariz. 437, 924 P.2d 441 (1996). Instead of giving the instruction that conformed to State v. Wussler, 139 Ariz. 428, 430, 679 P.2d 74, 76 (1984), where the jury was required to acquit before considering the lesser-included offense, our supreme court reconsidered Wussler and stated a jury must first use reasonable efforts to reach a verdict on the charged offense, and if they are unable to reach a verdict, the jury can then deliberate on a lesser offense. LeBlanc, 186 Ariz. at 439, 924 P.2d at 443. The court noted that "the acquittal-first requirement provides jurors far too little flexibility in reaching a just result" and "that requiring a jury to do no more than use reasonable efforts to reach a verdict on the charged offense is the better practice and more fully serves the interests of justice and the parties." Id. at 438, 924 P.2d. at 442.
¶4 Here, the superior court's proposed addition to the aggravated assault instruction improperly follows Wussler instead of LeBlanc. Accordingly, we grant relief, order the superior court not to use its proposed addendum, and to only use the standard RAJI criminal instructions.
¶5 Based on the foregoing, we accept special action jurisdiction and grant the requested relief.