State v. Garfield
Annotate this Case
Download PDF
NOTICE:
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz.R.Sup.Ct. 111(c); ARCAP 28(c);
Ariz.R.Crim.P. 31.24
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
STATE OF ARIZONA,
DIVISION ONE
FILED: 09/27/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
1 CA-CR 10-0323
Appellee,
DEPARTMENT D
MEMORANDUM DECISION
(Not for Publication –
Rule 111, Rules of the
Arizona Supreme Court)
v.
ROGER NORMAN GARFIELD,
Appellant.
Appeal from the Superior Court in Maricopa County
Cause No. CR2007-006317-001 DT
The Honorable Cari A. Harrison, Judge
VACATED AND REMANDED
Thomas C. Horne, Attorney General
by
Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
and Angela Kebric, Assistant Attorney General
Attorneys for Appellee
Janelle A. McEachern
Attorney for Appellant
Phoenix
Chandler
I R V I N E, Presiding Judge
¶1
Roger N. Garfield appeals his conviction and sentence
for manslaughter, a dangerous felony. For the following reasons,
we vacate the denial of Garfield’s motion for new trial and
remand to the superior court for redetermination of the motion.
FACTS AND PROCEDURAL HISTORY
¶2
Garfield was charged with one count of second degree
murder, a class 1 dangerous felony, for shooting a homeless man
who entered his antique shop and accosted him. Garfield claimed
he felt threatened and shot the victim in self-defense.
¶3
At the close of the evidence, Garfield requested a
jury instruction stating that he had no duty to retreat before
using
deadly
force
to
prevent
a
crime
pursuant
to
Arizona
Revised Statutes (“A.R.S.”) Section 13-411 (2010). At the time,
it
was
unclear
residences,
so
whether
the
State
A.R.S.
§
objected
13-411
on
this
applied
ground.
only
The
to
trial
court did not give this instruction and instead instructed the
jury
on
self-defense
(Supp.
2010)
person,
§
(use
13-406
of
under
deadly
(2010).
A.R.S.
§
13-404
force),
The
and
jury
(2010)
defense
convicted
and
-405
a
third
of
Garfield
of
manslaughter and found it to be a dangerous offense.
¶4
Garfield filed a motion for new trial, arguing the
trial court failed to instruct the jury under § 13-411 because
proposed Senate Bill (“SB”) 1449 would make it applicable to his
case,
and
it
was
warranted
under
the
evidence
and
theory
presented. He further argued that the jury should also have been
given instructions (1) on the definition of “unlawful physical
2
force”; (2) on “sudden quarrel” manslaughter under A.R.S. § 131103(A)(2) (2010); and (3) on “dangerous [offense]” as used in
the
verdict
forms.
The
State
responded
arguing
only
that
Garfield’s motion for a new trial was untimely, and there was
sufficient evidence to support the conviction.
¶5
of
Meanwhile, SB 1449 passed, making the 2006 amendments
certain
self-defense
statutes
in
SB
1144
retroactively
applicable to Garfield’s case. 2009 Ariz. Sess. Laws, ch. 190
(1st Reg. Sess.). In addition to de-classifying self-defense as
an affirmative defense, A.R.S. § 13-103 (2010), and shifting the
burden to the State to disprove a self-defense claim, A.R.S. §
13-205 (2010), SB 1144 amended § 13-411 to justify the use of
force to prevent certain crimes at a person’s place of business.
2006 Ariz. Sess. Laws, ch. 199 (2nd Reg. Sess.).
¶6
At a hearing in August 2009, the prosecutor conceded
that Garfield was entitled to a new trial, stating: “Your Honor,
the law is pretty clear. I think it’s retroactive to that day. I
don’t think the Court has any other choice but to reset it for a
new trial.” The trial court replied,
I will go ahead and grant the motion for new
trial based on the subsequent change in the
law, and there may be some other issues that
I should have addressed at trial and given
some different jury instructions. We can
obviously deal with that at the time of the
next trial.
(Emphasis added.)
3
¶7
Prior to the date of the new trial, a different panel
of this Court declared in State v. Montes, (“Montes I”), 223
Ariz.
337,
223
P.3d
681
(App.
2009)
that
SB
1449
was
unconstitutional. Based on this, the State moved to vacate the
new trial, reinstate the conviction and proceed with sentencing.
Garfield objected arguing that Montes I was incorrect and would
soon be overturned on appeal. Garfield also reminded the court
that there were other issues in his motion that the court chose
not to address because of the understanding that there would be
a new trial. The State responded that the time for Garfield to
raise those issues had passed, “a lot” of his motion was based
on the retroactivity of the amendment, and the change in law
disposed of those issues. The trial court stated, “[T]hat’s also
my recollection of what the arguments went to and the issue that
was involved there.” Stating, “[A]s before, I think, I am bound
by the law as it stands,” it reinstated the conviction.
¶8
Garfield was sentenced to a mitigated term of seven
years imprisonment. He timely appeals. Subsequently, the Arizona
Supreme
Court
overruled
Montes
I
and
held
that
SB
1449
was
constitutional. State v. Montes (“Montes II”), 226 Ariz. 194,
245 P.3d 879 (2011). Based on this, Garfield filed a motion
requesting an expedited ruling for immediate remand to the trial
court. We accepted this as a motion for an accelerated appeal.
4
DISCUSSION
¶9
Garfield argues that Montes II is dispositive of this
case and requires, at minimum, this Court to grant him a new
trial. We disagree. In Montes II, the Arizona Supreme Court only
addressed the constitutionality of SB 1449. 226 Ariz. at 195, ¶
1, 245 P.3d at 880. Concluding that it was constitutional, the
Court expressly overruled Montes I, vacated the convictions and
sentences,
and
remanded
to
the
superior
court
for
further
proceedings. Id. at 198, ¶ 19, 245 P.3d at 883.
¶10
Because it did so summarily, however, we do not read
Montes II as creating an entitlement to a new trial or any other
form of post-conviction relief simply because of a change in the
law made retroactively applicable to Garfield’s case. In Montes
II, the Arizona Supreme Court specifically noted that it was not
addressing “how SB 1145, as amended by SB 1449, might apply to
post-conviction
proceedings
under
Rule
32,
Arizona
Rules
of
Criminal Procedure.” Id. at 197 n.3, ¶ 16, 245 P.3d at 882 n.3.
¶11
Nor
does
Montes
II
require,
as
the
State
argues,
fundamental error and resulting prejudice before a conviction
may be vacated and remanded for further proceedings. We agree
with Garfield that such an approach ignores the crucial fact
that the trial court initially granted a motion for new trial
because
everyone,
including
the
prosecutor,
believed
that
Garfield was entitled to a new trial. The new trial was vacated
5
only because the State later pointed out that Montes I held SB
1449
to
be
unconstitutional.
Because
that
decision
has
been
reversed, the question is what the trial court would have done
absent all the perceived changes in the law.
¶12
Garfield argues the trial court believed his use of
deadly force was justified under A.R.S. § 13-411. Nothing in the
record supports this contention. Although all the parties agreed
that Garfield was entitled to a new trial due to a “change in
the law,” there is no indication that it was because of the
evidence
statements
Garfield
of
the
presented.
prosecutor
Rather,
and
the
it
appears
trial
court
from
the
that
they
simply believed there was no discretion to act otherwise. In
agreeing to a new trial, the prosecutor stated, “I don’t think
the Court has any other choice but to reset it for a new trial.”
When the trial court later vacated the new trial, it explained:
“[A]s before, I think, I am bound by the law as it stands.”
Under these circumstances, it appears the trial court relied on
Montes I to conclude it had no discretion.
¶13
The decision to grant or deny a motion for new trial
is within the sound discretion of the trial court and will not
be reversed absent a clear abuse of discretion. Matos v. City of
Phoenix, 176 Ariz. 125, 130, 859 P.2d 748, 753 (App. 1993). When
the trial court “‘in effect refuses to exercise its discretion,’
there is no reason for the appeals court to defer to the trial
6
court’s judgment.” State v. Fillmore, 187 Ariz. 174, 184, 927
P.2d
1303,
sentence
1313
and
(App.
remanding
1996)
because
(citation
the
omitted)
trial
court
(vacating
refused
to
exercise its discretion). “[I]f the record is unclear whether
the judge knew he had discretion to act otherwise, the case
should be remanded . . . .” State v. Garza, 192 Ariz. 171, 176,
¶ 17, 962 P.2d 898, 903 (1998) (remanding for sentencing where
the sentence was within the appropriate range, but the trial
court mistakenly believed it had no discretion).
¶14
Here, the positions adopted by the prosecutor and the
changes in the law appear to have caused confusion about the
trial court’s discretion. Because the State had conceded to a
new trial without appealing, this Court is inclined to reinstate
that order. We decline to do so, however, because it is unclear
from the record why the motion was granted in the first place.
Under these circumstances, the more appropriate remedy is to
remand for further proceedings. Id. In its discretion, the trial
court
may
consider
the
State’s
initial
concession
to
a
new
trial.
¶15
A
remand
is
also
appropriate
because
other
issues
raised in Garfield’s motion for new trial remain unresolved. At
the
hearing
on
Garfield’s
motion,
the
trial
court
expressly
acknowledged: “[T]here may be some other issues that I should
have
addressed
at
trial
and
7
given
some
different
jury
instructions.” Because the trial court was granting a new trial,
it never addressed those issues.
CONCLUSION
¶16
motion
For these reasons, we vacate the denial of Garfield’s
for
new
trial
and
remand
to
the
trial
court
for
redetermination of the motion.
/s/
PATRICK IRVINE, Presiding Judge
CONCURRING:
/s/
JOHN C. GEMMILL, Judge
/s/
PHILIP HALL, Judge
8
a
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
