State v. Gipson

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Justia Opinion Summary

Gary Gipson was indicted for first degree murder, illegal discharge of a firearm, and aggravated assault. At trial, the judge sua sponte instructed the jury on second degree murder over Gipson's objection and on manslaughter over the objections of both Gipson and the State. The jury found Gipson guilty of manslaughter and illegal discharge of a firearm. On appeal, Gipson conceded that the evidence supported the manslaughter instruction, but he argued that the trial court erred by giving it over the objections of both parties. The court of appeals affirmed. The Supreme Court affirmed, holding that, although a judge should hesitate to give the instruction over objections from the defense and the prosecution, it was not reversible error in this case to do so.

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SUPREME COURT OF ARIZONA En Banc STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) GARY WAYNE GIPSON, JR., ) ) Appellant. ) ) ) ) ) __________________________________) Arizona Supreme Court No. CR-11-0282-PR Court of Appeals Division One No. 1 CA-CR 10-0381 Maricopa County Superior Court No. CR2008-159515-001 DT O P I N I O N Appeal from the Superior Court in Maricopa County The Honorable J. Richard Gama, Judge AFFIRMED ________________________________________________________________ Memorandum Decision of the Court of Appeals, Division One Filed July 28, 2011 AFFIRMED ________________________________________________________________ THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Barbara A. Bailey, Assistant Attorney General Joseph T. Maziarz, Assistant Attorney General Attorneys for State of Arizona Phoenix DWANE CATES LAW GROUP, PLLC Phoenix By Dwane M. Cates Attorneys for Gary Wayne Gipson, Jr. ________________________________________________________________ H U R W I T Z, Vice Chief Justice ¶1 We are asked to decide whether a trial judge may instruct a jury on a lesser included offense supported by the evidence over objections from the defense and the prosecution. We hold that, although a judge should hesitate to give the instruction in such circumstances, it was not reversible error in this case to do so. I. ¶2 Gary Wayne Gipson, Jr. and Billy Joe Huff, Jr. had a financial dispute about a business venture.1 Huff, accompanied by his father, drove to Gipson s house to resolve matters. ¶3 car. Huff went to the door while his father waited in the When Gipson came outside, he exchanged words with Huff and punched him. After Huff hit Gipson back, Gipson pulled out a gun and shot Huff. Huff ran toward the car and Gipson fired several more shots, one of which hit Huff in the back. Huff died in the hospital that night. ¶4 Gipson was indicted for first degree murder, illegal discharge of a firearm, and aggravated assault. not seek the death penalty. instructed the jury on The State did At trial, the judge sua sponte second degree murder over Gipson s objection and on manslaughter over the objections of both Gipson and the State. The jury acquitted Gipson of first degree murder 1 We view the facts in the light most favorable to upholding the verdicts. State v. Chappell, 225 Ariz. 229, 233 ¶ 2 n.1, 236 P.3d 1176, 1180 n.1 (2010). 2 and was unable to reach a verdict on second degree murder, but found Gipson guilty of manslaughter. The jury was unable to reach a verdict on aggravated assault, but found Gipson guilty on the firearms charge. ¶5 On appeal, Gipson conceded that the evidence supported the manslaughter instruction, but argued that the trial judge erred by giving it over the objections of both parties. State v. Gipson, No. 1 CA-CR 10-0381, 2011 WL 3211057, at *1 ¶ 9 (Ariz. App. July 28, 2011) (mem. decision). The court of appeals affirmed, finding no authority for Gipson s contention that a court errs by choosing to give a proper lesser-included instruction over both sides objections. ¶6 Id. We granted review to resolve an issue of statewide importance. We have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24 (2003). II. A. ¶7 Gipson first argues that he had an absolute right to present an all or nothing defense to the first degree murder charge. He cites State v. Krone, 182 Ariz. 319, 323, 897 P.2d 621, 625 (1995), in which we said that [a] defendant should not have a lesser included instruction forced upon him, and State v. Rodriguez, 186 Ariz. 240, 249, 921 P.2d 643, 652 (1996), in 3 which we said that [i]f [the defendant] objects, the instruction should not be given. ¶8 Krone and Rodriguez, however, were capital cases. In each case, this Court discussed the trial court s obligation in capital cases under Beck v. Alabama, 447 U.S. (1980), to instruct on lesser included offenses. Vickers, this Court interpreted Beck to require 625, 644-45 In State v. sua sponte instructions in capital cases on all lesser included offenses supported by the evidence. 322 (1981). 129 Ariz. 506, 513, 633 P.2d 315, In Krone and Rodriguez, the defendants claimed that the trial court had violated the Beck rule. Krone, 182 Ariz. at 323, 897 P.2d at 625; Rodriguez, 186 Ariz. at 249, 921 P.2d at 652. ¶9 In response, we clarified that the Beck rule is not absolute. See Krone, 182 Ariz. at 323, 897 P.2d at 625 ( [E]ven when otherwise warranted by the evidence, Beck does not always require a lesser included instruction. ) Florida, 468 U.S. 447 (1984)). (citing Spaziano v. Taken to its logical conclusion, Beck would require a lesser included offense instruction even when the defendant objected to it. But, because the Beck rule rests on the premise that a lesser included offense instruction in a capital case is of benefit to the defendant, Spaziano, 468 U.S. at 456, such an approach would make no sense. It was in this context that we said that [a] defendant should not have a 4 lesser included instruction forced upon him. at 323, 897 P.2d at 625. Krone, 182 Ariz. Thus, a defendant may waive any right to a lesser included instruction in a capital case by objecting to the instruction; the trial judge is not bound by Beck to give the instruction under such circumstances. ¶10 Rodriguez illustrates the point. There, the defendant submitted a request for lesser included instructions, but later withdrew it. 186 Ariz. at 249, 921 P.2d at 652. Accordingly, the trial court instructed only on first degree murder. On appeal, Rodriguez claimed that the court s failure Id. to instruct sua sponte on second degree murder violated the rule in Beck. Because withdrawal of a requested instruction is tantamount to an objection to the instruction, however, we found that the trial judge was relieved of any obligation to give the instruction. ¶11 Id. Gipson s reading of Krone and Rodriguez as affording a defendant the absolute right to an all or nothing defense thus interprets those cases too broadly. See State v. Cruz, 189 Ariz. 29, 32, 938 P.2d 78, 81 (App. 1996) (observing that Krone and Rodriguez do not control whether the court must refuse to instruct on lesser-included offenses when the state those instructions, and the defendant objects ). requests Indeed, our rules make clear that the State is entitled to lesser included instructions when the evidence so warrants. 5 See Ariz. R. Crim. P. 13.2(c) cmt. prosecutor s (noting right to that request Rule 13.2(c) instructions clarifies as to the necessarily included offenses ); Ariz. R. Crim. P. 23.3 cmt. ( Rules 13.2(c) and 23.3 make clear that the prosecutor . . . is entitled to an instruction support on and for any offense which a for which verdict form there is is evidentiary submitted to the jury. ). B. ¶12 erred Alternatively, by instructing objections. ¶13 lesser manslaughter that the over trial both judge parties This argument also fails. included offense cases, whether requested. supported or not by the such evidence an in all instruction was See State v. Madden, 104 Ariz. 111, 114, 449 P.2d 39, 42 (1969). 21.3(c). on argues We once required trial judges to instruct on every homicide through Gipson an But that approach was subsequently abandoned amendment to Arizona Rule of See Ariz. R. Crim. P. 21.3(c) cmt. Criminal Procedure Gipson argues that because judges are no longer invariably required in non-capital cases to instruct on lesser included offenses supported by the evidence, they are prohibited from doing so when both parties object to the instruction. ¶14 That argument finds no support in our rules. To the contrary, Rule 23.3 provides that [f]orms of verdict shall be 6 submitted to the jury for all offenses necessarily included in the offense charged. 2 a lesser included Although Rule 23.3 does not mandate that offense instruction be submitted over the objections of the defendant and the state, it plainly does not preclude the trial judge, in the exercise of his discretion, from doing so. Moreover, Rule 13.2(c) provides that [s]pecification of an offense in an indictment, information, or complaint shall constitute a charge of that offense and of all offenses necessarily included therein. Thus, the defendant is on notice from the beginning of the proceedings against him that the jury may be asked to consider any lesser included offenses supported by the trial evidence.3 ¶15 We do not suggest that, in exercising their discretion, trial judges should ignore the objections of both the defendant instruction. and the state In general to the a trial lesser judge included offense should withhold 2 An offense is necessarily included when it is lesser included and the facts of the case as presented at trial are such that a jury could reasonably find that only the elements of a lesser offense have been proved. State v. Wall, 212 Ariz. 1, 3 ¶ 14, 126 P.3d 148, 150 (2006). 3 Gipson does not claim that the State had suggested before instructions were settled that it did not intend to pursue a manslaughter conviction. Thus, we are not confronted today with a case in which the defendant was surprised by or unable to prepare a defense to the necessarily included charge. Cf. Ramsey v. State, 996 A.2d 782 (Del. 2010) (reversing a conviction for a lesser included offense after a bench trial in which the judge considered the offense without giving notice to the defendant). 7 charging on lesser included offense[s] unless one of the parties requests it, since that charge is not inevitably required in our trials, but is an issue best resolved, in our adversary system, by permitting counsel to decide on tactics. Walker v. United States, 418 F.2d 1116, 1119 (D.C. Cir. 1969); accord State v. Cox, 851 A.2d 1269, 1273-74 (Del. 2003); Hagans v. State, 559 A.2d 792, 804 (Md. 1989). ¶16 Gipson cites no case, however, in which an appellate court has reversed a conviction solely because a trial judge gave a lesser included instruction that was supported by the evidence. Nor have we discovered any such case. Indeed, in People v. Garcia, the Illinois Supreme Court, while cautioning trial judges to exercise restraint in instructing sua sponte on lesser included offenses, refused to reverse a conviction on this ground. 721 N.E.2d 574, 582-83 (Ill. 1999) (noting the societal interest in avoiding the unjustified exoneration of wrongdoers and in punishing a defendant only to the extent of his crime ). ¶17 When We agree with the approach taken by the Garcia court. both parties object to a lesser included offense instruction, the trial court should be loath to give it absent compelling circumstances to the contrary. But if the instruction is given and supported by the evidence, a resultant conviction for the lesser included offense does not violate the 8 defendant s constitutional statute or rule. rights or contravene any Arizona Because the manslaughter instruction in this case was supported by the evidence, Gipson s conviction must stand. III. ¶18 For the reasons above, we affirm the memorandum decision of the court of appeals and affirm Gipson s convictions and sentences. _____________________________________ Andrew D. Hurwitz, Vice Chief Justice CONCURRING: _____________________________________ Rebecca White Berch, Chief Justice _____________________________________ W. Scott Bales, Justice _____________________________________ A. John Pelander, Justice _____________________________________ Robert M. Brutinel, Justice 9

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