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State v. Lucas6/7/1990
e v. Rose, 121 Ariz. 131, 139, 589 P.2d 5, 13 (1978). Furthermore, it cannot be presumed that the jurors violated the judge's admonition not to speculate
about the reasons for the juror's removal. State v. Trujillo, 120 Ariz. 527, 531, 587 P.2d 246, 250 (1978).
Appellant has failed to establish that any of the jurors were incapable of rendering a fair and impartial verdict. To the contrary, each assured the court that they were capable of doing so even after the matter arose and they were made aware that a letter had been presented to the court detailing a concern about the sympathy of the juror's wife to the appellant's family. Moreover, some of the jurors told the court they were unaware of the possible displays of sympathy and yet others told the judge that the juror's wife had attempted to talk to them about the case, including the evidence and the reasons for delays that were occurring during the trial. We cannot say that the trial court's determination and manner in which it excused one juror prevented the jury from rendering a fair and impartial verdict.
INSTRUCTIONS ON JUSTIFICATION
Appellant argues that the justification instructions given to the jury were erroneous and could have misled the jury into considering that the victim's use of deadly force was a justified response to appellant's use of non-deadly force.
The trial court instructed the jury pursuant to A.R.S. § 13-405. However, it erroneously advised them that a person is justified in threatening or using deadly physical force against another person when a reasonable person would believe that deadly physical force was immediately necessary to protect that person against the other's use or attempted use of "unlawful physical force," rather than the other's use or attempted use of "unlawful deadly physical force." The judge also instructed the jurors when the use of deadly physical force was not justified as set forth in A.R.S. § 13-404(B)(1), (3). The judge also instructed the jurors on the justification defense set forth in A.R.S. § 13-411. In accordance with that statute, he instructed the jurors on the lack of a duty to retreat and the presumption that a person is acting reasonably in using deadly force when he is acting to prevent the commission of murder, burglary, or aggravated assault.
Thereafter, the court defined "aggravated assault" as occurring when a serious physical injury results or when a deadly weapon is used. The court further instructed the jurors that "aggravated assault" could include those assaults which occur after entering the residence of another with the intent to commit an assault.
Appellant argues that A.R.S. § 13-411(A) does not permit deadly physical force to be used to prevent the commission of a burglary or an assault unless they involve a deadly weapon or where serious physical injury occurs. A.R.S. § 13-411 does require that aggravated assault be accomplished through either the infliction of serious physical injury or the use of a deadly weapon. Therefore, to the extent the instructions may be construed as advising the jurors that an aggravated assault could include any assault which occurs after entering the residence, it was erroneous.
Appellant argues that it was fundamental error for the court to give the jury any instructions concerning justification because there was no issue of premeditation and there can be no claim of self-defense to a charge of felony murder. State v. Cela
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