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Date: 01-18-2023
Case Style:
State of Arizona v. Jordan Christopher Ewer
Case Number: CR-21-0059-PR
Judge: Beene
Court: Supreme Court of Arizona on appeal from the Superior Court Pima County
Plaintiff's Attorney: Kris Mayes, Arizona Attorney General, Alice Jones, Deputy Solicitor
General, Karen Moody (argued), Assistant Attorney General, Criminal
Appeals Section, Tucson, Attorneys for State of Arizona
Defendant's Attorney:
Description: Tucson, Arizona criminal defense lawyer represented Defendant charged with second degree murder.
¶1 Arizona’s self-defense statute provides that “a person is
justified in threatening or using physical force against another when and to
the extent a reasonable person would believe that physical force is
immediately necessary to protect [one]self against the other’s use or
attempted use of unlawful physical force.” A.R.S. § 13-404(A). The Revised
Arizona Jury Instruction (“RAJI”) regarding self-defense, however, states
that the justification defense applies to a “defendant” instead of a “person.”
See Rev. Ariz. Jury Instr. (Crim.) Justification for Self-Defense 4.04, at 63–65
(4th ed. 2016). In this case, we consider whether the reference to “person”
in § 13-404(A) extends to both the defendant and the victim or refers only
to the defendant. For the following reasons, we hold that the justification
defense provided by § 13-404(A) only applies to a defendant’s conduct.
BACKGROUND
¶2 In July 2017, Emily attempted to purchase heroin from Jeffrey
Ferri. After Emily gave Ferri twenty dollars, he told her that he would give
her the drugs later. When the purchased heroin was not delivered, Emily
told her fiancée Gilbert about her failed drug transaction. Gilbert and Emily
then went to Ferri’s residence to retrieve either the purchased heroin or the
twenty dollars. Because Ferri was not home when Gilbert and Emily
arrived, Ferri’s roommate allowed Gilbert to take a Bluetooth speaker
owned by Ferri as “collateral” for the heroin.
¶3 Later that night, Ferri, defendant Jordan Ewer, and others
drove to Gilbert’s home to retrieve the speaker. A confrontation ensued.
Fearing that Gilbert might have a gun, Ewer and the others decided to leave;
but as they were leaving, Gilbert hit their car with a rock and punched one
of the occupants in the car. In response, Ewer got out of the car and
STATE V. JORDAN CHRISTOPHER EWER
Opinion of the Court
3
brandished a gun. Seeing the weapon, Gilbert and Emily retreated into
their home while Ewer and the others drove away.
¶4 A few hours later, Ewer, accompanied by two other
individuals, returned to Gilbert’s house. As they arrived, Gilbert and Emily
came outside. When Emily noticed that Ewer had drawn his gun, she told
him to put it away or she would “smack him in the face with a golf club.”
At this point, both groups began throwing rocks at each other. As Ewer
and the others started backing away from the scene, Gilbert and Emily
began to follow them. Ewer responded by firing multiple times in Gilbert’s
direction, hitting him once in the back. Paramedics responded to Gilbert’s
house and pronounced him dead at the scene.
¶5 The State charged Ewer with one count of second degree
murder, disorderly conduct involving a firearm, and discharge of a firearm
in or into the city limits. Before trial, Ewer requested the jury be instructed
using the RAJIs for justified use of deadly force in self-defense, defense of a
third person, and crime prevention. These instructions provide that “[a]
defendant is justified” in using force under specified conditions, and also
use the word “defendant” elsewhere. See RAJI Justification for Self-Defense
4.04; RAJI Justification for Self-Defense Physical Force 4.05, at 66; RAJI
Justification for Defense of a Third Person 4.06, at 68; RAJI Use of Force in
Crime Prevention 4.11, at 78.
¶6 The State proposed that the word “defendant” be replaced by
“person” throughout the justification instructions, arguing that the jury
could apply the justification instructions to Gilbert’s conduct as well as
Ewer’s. Over Ewer’s objection, the trial court granted the State’s request for
the modified justification jury instructions and ruled that the State could
argue that the victim’s actions were legally justified.
¶7 In its closing argument, the State told the jury that the
justification instructions applied equally to the defendant’s and Gilbert’s
actions, and that “if [Gilbert’s] conduct was lawful, then [Ewer] is not
justified.” The jury returned a guilty verdict on all counts.
STATE V. JORDAN CHRISTOPHER EWER
Opinion of the Court
4
¶8 The court of appeals vacated Ewer’s convictions and
remanded for a new trial. State v. Ewer, 250 Ariz. 561, 571 ¶ 34 (App. 2021).
The court concluded that the “[j]ustification presumptions are not intended
to apply to the victim’s conduct” and “[t]he modified jury instructions and
the state’s argument applying them to the victim . . . were therefore
improper.” Id. at 567 ¶ 18. Additionally, the court determined that this
error was not harmless because it infected every count against Ewer and
had a strong likelihood of misleading the jury. Id. at 568–69 ¶ 23.
¶9 We granted review to determine whether the self-defense
justification jury instruction may incorporate the use of force by both the
defendant and victim or if the instruction applies only to the defendant.
This is a question of statewide concern and is likely to recur. We have
jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution.
DISCUSSION
¶10 “We review a trial court’s decision to give a jury instruction
for an abuse of discretion.” State v. Aragón, 252 Ariz. 525, 528 ¶ 6 (2022).
We review de novo whether a trial court properly instructed the jury, State
v. Champagne, 247 Ariz. 116, 130 ¶ 22 (2019), and “whether [the] jury
instructions properly state the law,” State v. Payne, 233 Ariz. 484, 505 ¶ 68
(2013). Additionally, “[w]e consider the jury instructions as a whole to
determine whether the jury received the information necessary to arrive at
a legally correct decision.” State v. Dann, 220 Ariz. 351, 363 ¶ 51 (2009).
¶11 Although each party is entitled to jury instructions on “any
theory of the case reasonably supported by the evidence,” Champagne,
247 Ariz. at 137 ¶ 60 (quoting State v. Bolton, 182 Ariz. 290, 309 (1995)), a jury
instruction is improper if it misleads the jury, see State v. Kuhs, 223 Ariz. 376,
384 ¶ 37 (2010).
¶12 Section 13-404(A) states that “a person is justified in
threatening or using physical force against another when and to the extent
a reasonable person would believe that physical force is immediately
necessary to protect [one]self against the other’s use or attempted use of
unlawful physical force.” (Emphasis added.) Although A.R.S. § 13-105(30)
STATE V. JORDAN CHRISTOPHER EWER
Opinion of the Court
5
defines “person” as “human being,” this broad definition could refer to
either a defendant or victim. The issue before this Court is whether the
reference to “person” in § 13-404(A) is necessarily limited to a defendant, as
reflected in Arizona’s self-defense jury instruction. See RAJI Justification
for Self-Defense 4.04.
¶13 To resolve this question, we must consider the context of § 13-
404(A) and related statutes on the same subject to properly discern the
statutory definition. See Molera v. Hobbs, 250 Ariz. 13, 24 ¶ 34 (2020); A.R.S.
§§ 13-401 to -403, -405 to -411 (providing justification defenses for the use of
deadly force, defense of a third person, defense of premises, defense of
property, and the use of physical force in law enforcement and crime
prevention). “Our task in statutory construction is to effectuate the text if
it is clear and unambiguous,” BSI Holdings, LLC v. Ariz. Dep’t of Transp.,
244 Ariz. 17, 19 ¶ 9 (2018), and to do so, we “interpret statutory language in
view of the entire text, considering the context and related statutes on the
same subject.” Molera, 250 Ariz. at 24 ¶ 34 (citation omitted); see also State
ex rel. Larson v. Farley, 106 Ariz. 119, 122 (1970) (noting that courts look to
the “whole system of related statutes”).
¶14 Looking to the related justification statutes in Chapter 4 of
Title 13 for context, the use of “person” clearly reflects a focus on an
individual accused of a crime and subject to criminal prosecution. See §§ 13-
401 to -403, -405 to -411. For example, § 13-401(A), which discusses the
availability of justification as a defense, makes clear that a “person[’s]”
conduct is only justified for certain crimes and the defense “is unavailable in
a prosecution” for other crimes. (Emphasis added.) Additionally, subsection
(B) refers to a criminal prosecution: “[J]ustification, as defined in this
chapter, is a defense in any prosecution for an offense pursuant to this title.”
§ 13-401(B) (emphasis added).
¶15 The other justification statutes also use this common,
contextual theme: providing a “person”—a putative defendant in a
criminal prosecution—with the ability to lawfully use physical force to
protect oneself or a third person from the threatened unlawful use of force
by another person, as well as the ability to use force to prevent another
person from committing certain enumerated crimes. See §§ 13-401 to -403,
STATE V. JORDAN CHRISTOPHER EWER
Opinion of the Court
6
-405 to -411. In context, these related statutes indicate that justification
defenses are afforded to a “person” who is a defendant in a criminal
prosecution.
¶16 Section 13-205(A), another statute that references the
justification defense, also provides helpful context in defining “person” in
§ 13-404(A). This statute provides, in part, that “[i]f evidence of justification
pursuant to [A.R.S. §§ 13-401 to -421] is presented by the defendant, the state
must prove beyond a reasonable doubt that the defendant did not act with
justification.” A.R.S. § 13-205(A) (emphasis added).
¶17 Analyzing the word “person” in § 13-404(A) in context with
these related statutes provides the framework to decide this issue. The
words “prosecution” and “defendant,” and references to a “defense”
within the context of these statutes, lead us to conclude that “person” in the
justification statutes refers to a criminal defendant, not a “victim.”
Accordingly, because “person” in § 13-404(A) applies to a defendant in a
criminal prosecution, the trial court erred when it modified the standard
RAJI justification instructions.
¶18 Modifying the standard RAJI justification instructions to
include consideration of the victim’s use of force was improper for another
reason. As modified, it altered the perspective from which a jury must
determine whether the conduct in question was justified. “[T]he sole
question is whether a reasonable person in the defendant’s circumstances
would have believed that physical force was ‘immediately necessary to
protect himself.’” State v. King, 225 Ariz. 87, 90 ¶ 12 (2010) (quoting § 13-
404(A)).
¶19 The State argues that whether the victim was justified in using
force is one variable in the objective standard used to evaluate the
defendant’s behavior. We disagree. It is of no import that a victim may
have justifiably used or threatened force because the legality of the victim’s
conduct is immaterial to a justification analysis. Accordingly, the
prosecutor’s argument to the jury that “if [Gilbert’s] conduct was lawful,
then [Ewer] is not justified” was incorrect as a matter of law. Even if a
victim’s conduct is justified, the defendant could still reasonably but
STATE V. JORDAN CHRISTOPHER EWER
Opinion of the Court
7
mistakenly believe that use of force against the victim was necessary. See
A.R.S. § 13-204(A)(2) (“[A] mistaken belief as to a matter of fact does not
relieve a person of criminal liability unless . . . [i]t supports a defense of
justification . . . .”); State v. Carson, 243 Ariz. 463, 468 ¶¶ 21–22 (2018)
(recognizing that a mistaken belief regarding a threat can be reasonable
from defendant’s perception). Because the proper focus of a justification
defense is on an objectively reasonable person in the defendant’s position,
King, 225 Ariz. at 90 ¶ 12; Carson, 243 Ariz. at 465 ¶ 9, 468 ¶ 22, the trial
court erred in modifying the standard RAJI self-defense justification
instruction to incorporate the victim’s use of force.
¶20 The court of appeals relied on State v. Abdi, 226 Ariz. 361
(App. 2011), to conclude that the self-defense justification jury instruction
should not be modified to incorporate a victim’s use of force. See Ewer,
250 Ariz. at 567–68 ¶¶ 17–18. Although the court reached the correct
conclusion, we disagree with its reliance on Abdi because the court there
improperly relied on legislative history in its interpretative analysis.
226 Ariz. at 364 ¶ 8. We do not consider legislative history when the correct
legal interpretation can be determined from the plain statutory text and the
context of related statutes. See SolarCity Corp. v. Ariz. Dep’t of Revenue,
243 Ariz. 477, 480 ¶ 8 (2018) (“The best indicator of [legislative] intent is the
statute’s plain language, which we read in context with other statutes
relating to the same subject . . . .”).
¶21 Our holding today, however, does not mean that a victim’s
behavior is irrelevant. Self-defense cases often subject a victim’s actions to
scrutiny. But it is not necessary or appropriate to instruct the jury regarding
the victim’s justification for the state to prove that the defendant’s actions
were not justified. Instead, the state can meet its burden in at least two other
ways. First, the state can present evidence that the defendant’s behavior
provoked the victim. § 13-404(B)(3); see also State v. Lujan, 136 Ariz. 102,
104–05 (1983) (denying defendant’s self-defense instruction because
defendant provoked the encounter). Second, the state can show that a
reasonable person in the defendant’s position would not have thought that
physical force was immediately necessary. State v. Buggs, 167 Ariz. 333,
336–37 (App. 1990) (rejecting defendant’s justification defense because
defendant’s action was not imminently necessary to prevent harm).
STATE V. JORDAN CHRISTOPHER EWER
Opinion of the Court
8
¶22 We also recognize that there may be situations in which it
would be appropriate for the trial court to instruct the jury on applicable
law based on the state’s or defendant’s positions at trial in order to assist
the jury in analyzing a justification claim. For example, if a defendant
claimed self-defense to justify physical force in response to a victim’s
alleged aggravated assault, the state may be entitled to a jury instruction
regarding aggravated assault to show that a reasonable person in the
defendant’s position was not justified in responding with physical force.
See State v. Fish, 222 Ariz. 109, 128 ¶¶ 63–64 (App. 2009) (holding that jury
instructions regarding relevant law may be appropriate to assist the jury in
determining validity of a self-defense claim). But here, the instruction was
legally incorrect and did not assist the jury in determining the defendant’s
guilt.
Outcome: ¶23 For the foregoing reasons, we vacate paragraphs 17–21 of the
court of appeals’ opinion, reverse the trial court’s judgment, and remand
this case to the trial court for proceedings consistent with this opinion and
the remainder of the court of appeals’ opinion including the court’s
instruction to vacate Ewer’s convictions and hold a new trial.
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Defendant's Experts:
Comments: