Opinion
Terry Goddard, Arizona Attorney General, By Randall M. Howe, Chief Counsel, Criminal Appeals Section, Joseph T. Maziarz, Phoenix, Assistant Attorney General Attorneys for Appellee.
James J. Haas, Maricopa County Public Defender By Stephen R. Collins, Deputy Public Defender, Phoenix, Attorneys for Appellant.
OPINION
GEMMILL, Judge.
¶ 1 We are again called upon to address whether the statutory definition of premeditation has been constitutionally applied in a first-degree murder trial. We find neither constitutional error nor any other reversible error. We therefore affirm Robert James Zamora's conviction and sentence for the first degree murder of Roman Figueroa.
¶ 2 Zamora's counsel filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that he had searched the record and found no arguable question of law and asking this court to search the record for fundamental error. See Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). Zamora raised, through counsel, the following issues: insufficiency of the evidence to support a first degree murder conviction and ineffective assistance of trial counsel in failing to raise a defense of temporary insanity.
Zamora was also afforded the opportunity to file a supplemental brief in propria persona but did not do so.
¶ 3 Following our initial review, we ordered additional briefing on these premeditation issues: whether any reversible error resulted from the jury instruction defining premeditated murder, in light of State v. Thompson, 201 Ariz. 273, 34 P.3d 382 (App.2001)(review granted April 23, 2002); whether the legislature could differentiate between first and second degree murder solely based on the passage of time without requiring an act, omission, or mental state; and whether the premeditation instruction, which was based on an Arizona statute, was too confusing or contradictory to permit meaningful resolution of the question of premeditation. We have reviewed the record and considered the supplemental briefing from the parties. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶ 4 We view the facts and all reasonable inferences therefrom in the light most favorable to upholding the jury verdict. State v. Powers, 200 Ariz. 123, 124, ¶ 2, 23 P.3d 668, 669 (App.2001). Roman Figueroa was killed in his apartment. In addition to Roman, those present included Roman's girlfriend, Zamora, Zamora's son, and two other friends of Roman's. Some of them had been drinking. Roman and his friends were criticizing an acquaintance whose first name is Robert. The remarks about Robert included that he "was staying in a[n] abandoned apartment, that he was a bum. He was better off in jail. Stuff like that." Zamora, whose first name is also Robert, got up, closed and locked the front door, and went over to Roman and asked, "Do you know me?" and "What's my name?" In response, Roman told "Bobby" to "kickback and relax" and "stop tripping." Zamora then began stabbing Roman with a steak knife. As Roman yelled for him to stop, Roman's friends fled the apartment and Roman's girlfriend fled to the bedroom to call 9-1-1.
¶ 5 During the five-minute 9-1-1 call, Roman's girlfriend reported that it "was quiet for a while" and then she again heard "rumbling in the dining area and Roman screaming." Two neighbors who lived above Roman testified that they heard him scream: "Oh, God, no" and "Why did you do that?" The noise then stopped for "a minute or two" and started again. Police arrived within minutes and arrested Zamora. Paramedics began treating Roman, but he died soon after. The medical examiner testified that death resulted from blood loss caused by forty-four mostly superficial wounds and that Roman's condition may have been aggravated by his liver's inability to produce blood clotting factors.
The recorded 9-1-1 call was played for the jury.
¶ 6 At the conclusion of the evidence, the court instructed the jury that first-degree murder required proof that Zamora acted with "premeditation." The jury found Zamora guilty of first degree murder and he was sentenced to prison for the rest of his natural life.
DISCUSSION
¶ 7 Zamora did not deny that he killed Roman. He conceded guilt for second-degree murder. But he was charged with premeditated first-degree murder. Thus, the only issue at trial was whether the killing was "premeditated" as defined under Arizona law. Zamora argues that the Arizona statute defining premeditation and the jury instruction based upon the statute is unconstitutionally void for vagueness because it provides no meaningful distinction between first- and second-degree murder.
¶ 8 Arizona Revised Statutes ("A.R.S.") section 13-1101(1) (2001) provides that
"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.
(Emphasis added). The italicized language was added in 1998. 1998 Ariz. Sess. Laws, ch. 389 § 6.
¶ 9 Similarly, the court instructed the jury that premeditation
means that the defendant acted with either the intention or the knowledge that he would kill another human being, when such intention or knowledge preceded the killing by any length of time to permit reflection. However, the reflection differs from the intent or knowledge that the conduct would cause death. 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.
It is this period of reflection, regardless of its length, which distinguishes first degree murder from intentional or knowing second degree murder.
(Emphasis added). The first and third sentences of the court's instruction track the language of § 13-1101(1).
¶ 10 Prior to the 1998 amendment to § 13-1101(1), Division One of this court held that premeditation required actual reflection. State v. Ramirez, 190 Ariz. 65, 70, 945 P.2d 376, 381 (App.1997). Division Two of this court disagreed, concluding that premeditation does not require actual reflection. State v. Haley, 194 Ariz. 123, 125-26, ¶ 10, 978 P.2d 100, 102-03 (App.1998)(interpreting the version of § 13-1101(1) in effect prior to the 1998 amendment). The legislature then amended the definition of premeditation in 1998 by adding the words "Proof of actual reflection is not required." 1998 Ariz. Sess. Laws, ch. 289 § 6. These additional words make it clear that the State need not prove actual reflection. Instead, the State need only prove that the defendant's intent to kill or knowledge that he or she will kill another person preceded the killing "by any length of time to permit reflection." Ariz.Rev.Stat. ("A.R.S.") § 13-1101(1) (2001).
The more recent opinions of Division One in Thompson, 201 Ariz. at 277-78, ¶ ¶ 11-14, 34 P.3d at 386-87, and of Division Two in State v. Booker, 383 Ariz. Adv. Rep. 3, 3-4, ¶ ¶ 5-9, 203 Ariz. 284, 53 P.3d 635, 638-40 (App.2002) set forth the history of the premeditation statute and jury instructions defining premeditation.
First And Second Degree Murder Can Be Differentiated Solely Based On The Passage Of Time
¶ 11 Zamora argues that by eliminating any requirement of actual reflection and by defining premeditation solely as a period of time, the distinction between first- and second-degree murder is so minimal as to be unconstitutionally vague. We disagree. This argument was rejected by this court in Thompson, which held that the statute is not unconstitutionally vague on its face. "[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." Thompson, 201 Ariz. at 278, ¶ 16, 34 P.3d at 387. The definition provides "an adequate benchmark to permit jurors to non-arbitrarily distinguish between first- and second-degree murder in each case." Id. at 279, ¶ 21, 34 P.3d at 388.
¶ 12 The Thompson court, however, did find the statute unconstitutionally vague as applied because our supreme court, in cases such as State v. Hutton, 143 Ariz. 386, 389, 694 P.2d 216, 219 (1985), had interpreted this length of time to be "as instantaneous as the time it takes to make successive thoughts to kill." Thompson, 201 Ariz. at 280, ¶ 25, 34 P.3d at 389. Thompson held that if "nothing more than an instant of time ... [divides] first- and second-degree murder, and there is nothing whatsoever that a jury must find has happened during this instant in order to find premeditation, it simply cannot be said that this provides 'a sufficiently ascertainable standard of guilt.' " Id. at 281, ¶ 27, 34 P.3d at 390 (quoting Herndon v. Lowry, 301 U.S. 242, 261, 57 S.Ct. 732, 81 L.Ed. 1066 (1937)).
¶ 13 Nevertheless, the Thompson court affirmed Thompson's first-degree murder conviction because the trial court had not instructed the jury using the "instantaneous thoughts" language, the prosecutor had not argued that an "instant" was sufficient time to permit reflection, and any error was harmless under the circumstances of that case. 201 Ariz. at 281, 283, ¶ ¶ 33, 41, 34 P.3d at 390, 392. Ten minutes elapsed between defendant's arrival in the neighborhood and when he was seen dragging the victim into her house. Id. at 282, ¶ 39, 34 P.3d at 391. "Shortly thereafter" there was a 9-1-1 call during which nine seconds separated the first and third gunshots, and eighteen more seconds elapsed before the fourth shot; and a woman's scream was heard between the third and fourth shots. Id. The court found that the time between arrival in the neighborhood and the several shots "clearly qualifie[d] as a sufficient time to permit reflection." Id. at 283, ¶ 40, 34 P.3d at 392.
See also State v. Cecil, 201 Ariz. 454, 455, ¶ 4, 36 P.3d 1224, 1225 (App.2001) (first-degree murder conviction affirmed because offending "instantaneous thoughts" language was omitted from the jury instructions and argument on premeditation).
¶ 14 Zamora argues that the Thompson court erred in holding that the legislature could constitutionally define premeditation as the passage of an indeterminate period of time. He cites Macias v. State, 36 Ariz. 140, 149-50, 283 P. 711, 715 (1929), to argue that Arizona has long held that deliberation and reflection are necessary to establish first-degree murder. He also argues that the law did not need to specify how much time was necessary to constitute premeditation as long as proof of actual reflection was required. By eliminating that requirement, the 1998 amendment only requires "any length of time to permit reflection," § 13-1101(1), and thus has eliminated the distinction between first and second degree murder. Accordingly, Zamora contends that the statute is void for vagueness and violates due process.
¶ 15 Zamora further argues that even if the courts ignore the "instantaneous as successive thoughts" gloss on the statute, a jury could still come to that idea on its own. To avoid this possibility, proof of actual reflection must be required. Finally, he contends that if the premeditation instruction is subject to harmless error analysis, it was not harmless here because no evidence showed any prior bad feelings between him and the victim to suggest that Zamora formed the intent to kill before the actual killing.
¶ 16 The State responds that because Zamora requested an instruction on premeditation based on the statutory definition and voiced no objection when the court proposed an equivalent instruction, he invited any possible error that occurred. When a party requests an erroneous instruction, any resulting error is invited and the party generally waives his right to challenge the instruction on appeal. State v. Logan, 200 Ariz. 564, 565, ¶ ¶ 8-9, 30 P.3d 631, 632 (2001).
¶ 17 We note, however, that Zamora's trial was conducted before this court issued its opinion in Thompson, and the doctrine of invited error does not apply when the error is based on a change in law after the defendant's trial. State v. Miranda, 200 Ariz. 67, 68 n. 1, ¶ 1, 22 P.3d 506, 507 n. 1 (2001). Therefore, if Zamora is arguing that he was unconstitutionally convicted of first-degree murder based on a change in the law resulting from Thompson, we would not apply the invited error doctrine to preclude review on appeal. But Zamora primarily argues that Thompson was wrong in concluding that § 13-1101(1) was facially valid. The State is correct that this argument is technically barred by the invited error doctrine. ¶ 18 Even if we did not apply the invited error doctrine, we would affirm Zamora's conviction because we conclude that any error in the premeditation instruction was harmless. The concept that the time required for reflection could be as "instantaneous as successive thoughts" was not injected into the trial.
¶ 19 The court did not instruct the jury using the "instantaneous as successive thoughts" language found problematic in Thompson. Moreover, the prosecutor in closing did not argue that premeditation or reflection can be as "instantaneous as successive thoughts." He argued that Zamora's "first act of premeditation" was to walk over and close and lock the door. His second act was to confront Roman, his third was to pull out the knife, and his fourth to question Roman. He also argued that when Zamora "decides to start stabbing Roman," he is thinking that he is hurting and killing Roman. Then "the lull" occurs before Zamora "decides to finish him off. He attacks him again after that quiet time, and he stabs him repeatedly ... multiple acts of premeditation with every thought and every stab wound." Further, the prosecutor argued that Zamora "butchered and killed Roman. He thought about it before he did it; he thought about it during ... the 44 times he's stabbing Roman."
¶ 20 According to the prosecutor in closing argument, the "most telling piece of premeditation is that quiet period for two or three minutes" when Zamora had time to reflect and "could have stopped this attack at any time." Also, the number of wounds shows premeditation because during the time it took to inflict them, "there [was] ample time to permit reflection." Finally, the prosecutor argued that there was "no need for actual reflection" but Zamora had time to and "did reflect." We conclude the State did not argue that premeditation can be as "instantaneous as successive thoughts" and did not suggest that the period of time required for reflection could be "instantaneous."
¶ 21 Defense counsel in closing emphasized portions of the premeditation instruction that explain that "the reflection differs from the intent" and "an act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion." He argued that although proof of actual reflection is not required by the statute, "it's not just passage of time we[']re talking about, because if during the time that passion, the passion did not subside, there is no opportunity for reflection." Counsel contended that the killing resulted from passion incited by talk about the other Robert and thus that Zamora was guilty only of second-degree murder. Further, when Zamora shut the apartment door, he is "still experiencing that passion, he's getting madder." As long as the passion "is still there, what this instruction tells you, that's not premeditation. Passion excludes the opportunity to reflect." Counsel also suggested that the presence of marijuana "might be one reason to close the door. That has nothing to do with premeditation." Finally, counsel argued that the number of wounds showed that Zamora had acted in anger and in the "heat of passion."
¶ 22 During their deliberations, the jury asked: "Does premeditation have to occur prior to the first stab or can it occur during the five minutes of the assault?" The court answered, "The premeditation must occur prior to the killing." The jury next asked, "Does the premeditation have to occur entirely prior to the assault, or may we consider the time during the assault?" Over defense counsel's objection, the court replied, "Premeditation may occur at any time prior to the completion of the act of killing."
¶ 23 The next day, while still deliberating, the jury asked, "Once a person starts to kill is it to[o] late for premeditation?" and, "Can premeditation occur any time between the first stab and the point when the officers arrive on the scene?" The court answered, "As to these two questions, you are again advised that premeditation may occur at any time prior to the completion of the act of killing. You must determine when the act of killing is completed."
¶ 24 Based on the jury instructions, closing arguments, and jury questions to the court, the problematic "instantaneous as successive thoughts" concept was not present in this case. As in Thompson, the evidence reveals that Zamora had ample opportunity to reflect. He locked the door, stabbed the victim repeatedly, and continued the attack after a short interlude. Accordingly, we conclude, in accordance with Thompson, that any error that may have occurred was harmless and Zamora's conviction should be affirmed. See Thompson, 201 Ariz. at 282, 283, ¶ ¶ 34, 40-41, 34 P.3d at 391, 392.
¶ 25 Our conclusion is further supported by State v. Booker, 383 Ariz. Adv. Rep. 3, 203 Ariz. 284, 53 P.3d 635 (App.2002). There, our Division Two colleagues concluded that even if the concept of reflection as "instantaneous as successive thoughts" is included in the court's instruction to the jury, no constitutional violation has occurred. Id. at 5, ¶ 12, 53 P.3d at 640-41.
The Premeditation Instruction Was Not Too Confusing Or Contradictory
¶ 26 Although this court requested supplemental briefing on whether the premeditation instruction was too confusing or contradictory to resolve the premeditation question, Zamora has focused primarily on the arguments we have already addressed. The State asserts that any issue of the jury instruction being confusing or contradictory is waived because Zamora requested an essentially identical premeditation instruction and did not object to the giving of the actual instruction. See Logan, 200 Ariz. at 565, ¶ 8, 30 P.3d at 632. We agree. The issuance of the Thompson opinion is the only potential change in pertinent law since Zamora's trial, and Thompson did not conclude that § 13-1101(1) or jury instructions based on its language were defectively confusing or contradictory. We therefore apply the invited error doctrine.
¶ 27 Our dissenting colleague nonetheless argues that the statutory definition of premeditation used in jury instructions is confusing because the "meditation" has been taken out of "premeditation." Infra ¶ 38. The statutory definition of premeditation differs from its common meaning, but we do not find the definition to be so confusing or contradictory as to be unconstitutional. The instruction given in this case, based on the statutory definition, provided acceptable guidance to the jurors for the differentiation of first-degree from second-degree murder. See Thompson, 201 Ariz. at 279,¶ 21, 34 P.3d at 388; see also Booker, 383 Ariz. Adv. Rep. at 5, ¶ 12, 203 Ariz. at 289, 53 P.3d at 640-41. Jurors are presumed to follow their instructions, State v. LeBlanc, 186 Ariz. 437, 439, 924 P.2d 441, 443 (1996), and the questions asked by the jury in this case support the conclusion that they carefully considered the instruction and the evidence.
¶ 28 The dissent also suggests that the definition of premeditation falls short of the goal set forth in A.R.S. section 13-101(3) of "defin[ing] the act or omission and the accompanying mental state which constitute each offense." Infra ¶ 39. This argument is better addressed to the legislature, which is entitled to define first- and second-degree murder and the distinctions between them, subject to constitutional constraints. State v. Hickey, 114 Ariz. 394, 396-97, 561 P.2d 315, 317-18 (1977); Thompson, 201 Ariz. at 276, ¶ 7, 34 P.3d at 385.
Sufficiency of the Evidence
¶ 29 Zamora, in the Anders brief filed by his counsel, challenged the sufficiency of the evidence to support a first-degree murder conviction. We conclude that the evidence described in this opinion is sufficient to support a finding of premeditation. See State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990) (sufficient evidence to support a conviction is more than a mere scintilla and is such proof that reasonable jurors could accept as adequate to support a finding of a defendant's guilt beyond a reasonable doubt). From Zamora's conduct in locking the door, the length of the attack, the large number of wounds inflicted, and the one or two minute "lull," reasonable jurors could decide that Zamora had time to think about what he was going to do before he began and also time to think about what he was doing as he continued to stab Roman.
Ineffective Assistance of Counsel
¶ 30 Finally, appellate counsel raised on Zamora's behalf an allegation that trial counsel was ineffective for failing to assert a defense of temporary insanity. Our supreme court has recently ruled that ineffective assistance of counsel claims are to be brought in post-conviction relief proceedings under Arizona Rule of Criminal Procedure 32 and that any claim raised on direct appeal will not be addressed by appellate courts. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). We decline, therefore, to address this claim on direct appeal.
CONCLUSION
¶ 31 For these reasons, we affirm Zamora's first degree murder conviction and natural life sentence.
CONCURRING: ANN A. SCOTT TIMMER, Presiding Judge.
FIDEL, Judge, dissenting.
¶ 32 For two days the jury attempted, in a series of questions to the trial court, to make sense of Arizona's definition of premeditation. My colleagues presume that it eventually did so; I cannot agree; I do not believe that anyone can do so. We in the courts have certainly not done so, though in recent opinions, we have struggled mightily toward that end.
¶ 33 To commit premeditated murder, according to Arizona law, one must "act[ ] with the intention or knowledge" that one will kill another, and although that intention or knowledge must "precede[ ] the killing by any length of time to permit reflection," "[p]roof of actual reflection is not required." Ariz.Rev.Stat. § 13-1101(1) (1998). In the recent opinion State v. Booker, 203 Ariz. 284, 289, ¶ 12, 53 P.3d 635, 640 (App.2002), our colleagues in Division Two interpreted this language to mean that "premeditation, as statutorily defined, is a period of time sufficient to permit reflection regardless of whether reflection actually occurs." Not long before, Division One likewise concluded that premeditation, by Arizona definition, is merely a period of time, during which reflection need not occur. State v. Thompson, 201 Ariz. 273, 278, ¶ 15, 34 P.3d 382, 387 (App.2001).
¶ 34 In this case we asked counsel to brief whether first and second degree murder can meaningfully be differentiated solely on the basis of the passage of time, without requiring an act, omission, or mental state. My colleagues now answer this question in the affirmative, reiterating the Thompson conclusion 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." Supra ¶ 27, quoting Thompson, 201 Ariz. at 278, ¶ 16, 34 P.3d at 387.
¶ 35 I respectfully dissent. In my opinion, we have placed premeditation beyond comprehension. Our definition is nonsense, and it is nonsense in two respects.
¶ 36 The first respect is semantic. Though statutory definitions sometimes stretch or narrow common usage, there are limits to what language will bear. Without some anchorage in common understanding, law would pass beyond the looking glass, where words mean just what arbitrary power chooses them to mean--neither more nor less.
Lewis Carroll, THROUGH THE LOOKING GLASS 94 (Random House 1946).
¶ 37 A random search of dictionaries yields the common meaning of "premeditation." According to Webster, premeditation is "consideration or planning of an act beforehand that shows intent to commit that act." Merriam-Webster Collegiate Dictionary 919 (10th ed.1999). Likewise, a "premeditated" act is one "characterized by fully conscious, wilful intent and a measure of forethought and planning." Id. According to American Heritage, "premeditation" is "[t]he act of speculating, arranging, or plotting in advance ... [t]he contemplation of a crime well enough in advance to show deliberate intent to commit the crime; forethought." The American Heritage Dictionary of the English Language 1385 (4th ed.2000). And according to Random House, "premeditation" is "an act or instance of premeditating" and, with specific reference to law, "sufficient forethought to impute deliberation and intent to commit the act." The Random House Dictionary of the English Language 1526 (2nd ed.1987).
¶ 38 Call it plotting, call it deliberation, call it forethought, call it planning or contemplation in advance; in each definition, the essential element is reflection, however transitory its occurrence. Indeed, the root and literal meaning of pre-meditation is meditation in advance. Yet our courts and legislature have carved the meditation out of premeditation and left us only "pre." This is through the looking glass indeed.
I attribute this construction to the courts as well as the legislature, for the courts, instead of interpreting the statute as dispensing with the element of reflection, might more sensibly have interpreted the statute to specify only that direct proof of actual reflection is not required. The latter interpretation would accommodate the practical reality that direct proof, such as a defendant's admission of reflection, will be rare, yet that reflection can sometimes be inferred from attendant circumstances, including a passage of sufficient time to permit reflection to occur. This practical interpretation would relieve the statute of absurdity and our law of its present confusion. See, e.g., State v. Estrada, 201 Ariz. 247, 251, ¶ ¶ 17-18, 34 P.3d 356, 360 (2001) (statutes shall be construed in a manner that avoids an irrational or absurd result). This interpretation has not yet, however, been adopted by the Arizona courts.
¶ 39 Not merely in a linguistic sense, moreover, does Arizona's definition of premeditation amount to nonsense. It also violates a fundamental premise of our criminal law. We have statutorily obliged ourselves "[t]o define the act or omission and the accompanying mental state which constitute each offense." A.R.S. § 13-101(3). Yet Arizona's definition of premeditation turns the determination of a homicide defendant's precise offense, his greater or lesser degree of culpability, and his greater or lesser susceptibility to punishment merely on the ticking of a clock, and not on any differential act, omission, or accompanying mental state.
¶ 40 There is one final point to my dissent. We interpret A.R.S. § 13-1101(1) in the long shadow of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Ring, issued last summer, has placed Arizona's previous capital convictions in doubt and clouded ongoing prosecutions with uncertainty. The present case is not a capital case, of course. Nor did Ring concern the meaning of premeditation. Proof of premeditation, however, is the gateway to a capital conviction. And as we strive, in the aftermath of Ring, to restructure an acceptable set of laws for capital prosecutions, we are engaged, in my judgment, in a fool's errand if we retain as a pivotal element a definition of premeditation so contrary to common usage and understanding that jury confusion will be virtually assured.
¶ 41 For the foregoing reasons, I respectfully dissent.