                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                   DAVID GERALD WALKER, Appellant.

                             No. 1 CA-CR 15-0263
                               FILED 7-19-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-153596-001
                The Honorable Michael W. Kemp, Judge

   REVERSED AND REMANDED IN PART; AFFIRMED IN PART


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By David A. Simpson
Counsel for Appellee

Maricopa County Office of the Legal Advocate, Phoenix
By Frances J. Gray
Counsel for Appellant
                            STATE v. WALKER
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined.


N O R R I S, Judge:

¶1           David Gerald Walker appeals his convictions for second-
degree murder, kidnapping, tampering with physical evidence, disorderly
conduct and possession or use of marijuana. As relevant to our decision,
Walker argues the jury instructions and verdict form that addressed
provocation manslaughter were contradictory and misstated the law. We
agree. Accordingly, we reverse Walker’s conviction for second-degree
murder, but affirm his other convictions and sentences.

                 FACTS AND PROCEDURAL HISTORY

¶2             Walker and his ex-wife divorced in 2010. At trial, Walker
testified that despite the divorce, he believed he and his ex-wife were still a
couple. One night just after midnight, Walker entered the home of his ex-
wife and two children unannounced. He found his ex-wife and the victim
asleep in bed. Walker struck the victim in the head at least twice with a
baseball bat he either found by the bed or took from the garage as he entered
the house.

¶3            Walker dragged his ex-wife out of the bedroom, verbally
abused her, and struck her. Walker forced her to wake their two children
and ordered the three of them into his car. He placed the baseball bat he
had used to attack the victim in the trunk of the car. Walker then forced his
ex-wife to drive around while he spoke to various people on his cell phone.
He told his ex-wife that if she reported what he had done to police, he
would have someone “take care of [her]” so that their children would grow
up without her. After Walker ordered his ex-wife to stop at a closed
restaurant parking lot, he got out of the car, retrieved the baseball bat from
the trunk, and again told his ex-wife that if she told police what had
happened he “had people” who would hurt her. Walker then threw the bat
in a dumpster and jogged away. After Walker jogged away, Walker’s ex-
wife drove to a drugstore and called 911. The victim died of blunt force
trauma to his head.




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                           Decision of the Court

¶4            At trial, Walker admitted killing the victim. But, he argued he
was guilty of “provocation manslaughter” and not murder because he had
“freaked out” after finding his ex-wife in his bed with the victim. Ariz. Rev.
Stat. (“A.R.S.”) § 13-1103(A)(2) (Supp. 2015)1 (person commits provocation
manslaughter if he or she commits second-degree murder “upon a sudden
quarrel or heat of passion resulting from adequate provocation by the
victim”); A.R.S. § 13-1101(4) (2010) (“‘Adequate provocation’ means
conduct or circumstances sufficient to deprive a reasonable person of self-
control.”).

¶5            A jury found Walker guilty on the counts listed above. See
supra ¶ 1. The superior court sentenced Walker to an aggregate term of 30
years in prison.

                               DISCUSSION

I.     The Murder and Manslaughter Jury Instructions and Verdict Form

       A.     Background

¶6             At Walker’s request, the superior court instructed the jury on
second-degree murder as a lesser-included offense of first-degree murder.
That instruction identified the elements of second-degree murder and
explained the difference between first and second-degree murder. The
instruction further informed the jury that if it determined Walker was guilty
of either first or second-degree murder but had a reasonable doubt as to
“which it was,” it was required to find Walker guilty of second-degree
murder. To ensure that the jury would consider whether the circumstance
differentiating second-degree murder from provocation manslaughter was
present, the court then instructed the jury as follows:

              If you find the elements of second-degree
              murder proven beyond a reasonable doubt, you
              must consider whether the homicide was
              committed upon a sudden quarrel or heat of
              passion resulting from adequate provocation by
              the victim. If you unanimously find that the
              homicide was committed upon a sudden
              quarrel or heat of passion resulting from

              1Although    the Arizona Legislature amended certain statutes
cited in this decision after the date of the offenses, the revisions are
immaterial to the resolution of this appeal. Thus, we cite to the current
version of these statutes.


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                            STATE v. WALKER
                            Decision of the Court

              adequate provocation by the victim, then you
              must find the defendant not guilty of second-
              degree murder.

(Emphasis added.) See State v. Lua, 237 Ariz. 301, 306, ¶ 20, 350 P.3d 805, 810
(2015) (quoting Rev. Ariz. Jury Instr. (“RAJI”) Stand. Crim. 11.04 (second-
degree murder) (3d ed.)).

¶7              At Walker’s request, the superior court also instructed the
jury on provocation manslaughter as a lesser-included offense of second-
degree murder. Structured in accordance with State v. LeBlanc, 186 Ariz.
437, 438, 924 P.2d 441, 442 (1996) (jury may deliberate on a lesser-included
offense if it either finds defendant not guilty on the greater charge or, after
reasonable efforts, cannot agree whether to acquit or convict on the greater
charge), the court instructed the jury as follows:

              The crime of second-degree murder includes
              the lesser offense of manslaughter. You may
              consider the lesser offense of manslaughter if
              either

              1. you find the defendant not guilty of second
              degree murder[;] or

              2. after full and careful consideration of the
              facts, you cannot agree on whether to find the
              defendant guilty or not guilty of second degree
              murder.

(Emphasis in original.)

¶8             Finally, the superior court gave the jury a single verdict form
that addressed all three homicide offenses—first-degree murder, second-
degree murder, and provocation manslaughter. As relevant here, the
portion of the verdict form that addressed provocation manslaughter
instructed the jury as follows: “If you find the defendant guilty of Second
Degree Murder, do not complete this portion of the verdict form. In other
words, complete this portion only if you find the defendant either not guilty
of Second Degree Murder or you are unable to decide.” (Emphasis in
original.) Walker did not request this verdict form but raised no objection
to it. Indeed, at the time of Walker’s trial, the verdict form and the foregoing
instructions were in accordance with this court’s opinion in State v. Lua, 235
Ariz. 261, 261, ¶ 1, 330 P.3d 1018, 1018 (App. 2014), vacated, 237 Ariz. at 307,
¶ 21, 350 P.3d at 811. In that opinion, we held that provocation


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                            STATE v. WALKER
                            Decision of the Court

manslaughter was a lesser-included offense of second-degree murder. Id.
at 264, ¶ 12, 330 P.3d at 1021.

       B.     The Instructions and Verdict Form Were Contradictory and
              Misstated the Law

¶9              On appeal Walker argues the verdict form and the
instructions discussed above were contradictory and misstated the law.
Because Walker did not object to the verdict form, we review his arguments
about it for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19-
20, 115 P.3d 601, 607 (2005). And even though Walker requested the jury
instructions, he has not waived his right to challenge those instructions on
appeal under the invited error doctrine (and the State does not argue
otherwise) because, as noted, the instructions were in accordance with then-
existing law. See State v. Miranda, 200 Ariz. 67, 68 n.1, ¶ 1, 22 P.3d 506, 507
n.1 (2001) (invited error doctrine does not bar defendant from appealing
jury instruction given by superior court at his request when law changed
after his trial). Accordingly, we review Walker’s arguments about the jury
instructions for fundamental error as well. Id. (reviewing jury instructions
requested by defendant for fundamental error when law changed post-
trial).

¶10            The verdict form and instructions may be correct statements
of the law if considered in isolation and without context. When we consider
them together, and in the context of this case, however, they were
confusing, contradictory, misstated the law and resulted in fundamental,
prejudicial error. Henderson, 210 Ariz. at 567, ¶¶ 19-20, 115 P.3d at 607.

¶11            First, provocation manslaughter is not a lesser-included
offense of second-degree murder. Lua, 237 Ariz. at 303, ¶ 7, 350 P.3d at 807.
It is simply a less serious offense. Id. at 305, ¶ 16, 350 P.3d at 809. Second,
a superior court should not give a LeBlanc-type of instruction when it has
instructed the jury on provocation manslaughter. Id. at 306, ¶ 19, 350 P.3d
at 810. Instead, if the court instructs the jury on provocation manslaughter,
it should give the additional provocation language approved by the
supreme court in Lua. Id. at ¶ 20. That is, the court should instruct the jury
that if it finds the State has proven all the elements of second-degree
murder, it must consider “whether the homicide was committed upon a
sudden quarrel or heat of passion resulting from adequate provocation by
the victim,” and that, if it makes those findings, it must find the defendant
guilty of manslaughter rather than second-degree murder. This ensures
“the jury will consider whether the circumstance differentiating second-
degree murder from provocation manslaughter is present” and justify a


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                            STATE v. WALKER
                            Decision of the Court

finding of guilt for provocation manslaughter. Id. (citing comment to RAJI
Stand. Crim. 11.04).

¶12           In this case, however, the court included the additional
provocation language for the second-degree murder instruction and the
LeBlanc-type instruction in its instructions to the jury. The result was the
second-degree murder instruction correctly told the jury it must consider
whether the offense was provocation manslaughter if the State proved
every element of second-degree murder, but the LeBlanc-type instruction
that immediately followed that instruction directly contradicted that
instruction as it informed the jury that it may consider manslaughter only if
it found Walker not guilty of second-degree murder or could not agree on a
verdict for second-degree murder. The verdict form for the homicide
offenses compounded the confusion further because it also contradicted the
second-degree murder instruction and told the jury “do not” complete the
manslaughter portion of the form if it found Walker guilty of second-degree
murder. The verdict form then instructed the jury, “In other words,
complete this portion only if you find the defendant either not guilty of
Second Degree Murder or you are unable to decide.” (Emphasis in
original.)

¶13           The superior court’s summary of the homicide verdict form
immediately after the State’s rebuttal argument compounded the
confusion. The court told the jury that if it considered second-degree
murder and either found Walker not guilty of second-degree murder or
could not reach a decision on second-degree murder, “now you can go on
to manslaughter. If you find him guilty of second-degree murder, you
don’t consider manslaughter. You are done with that count. All right?
Does that make sense?” Therefore, the jury began its deliberations having
been told that it could not consider whether the offense was provocation
manslaughter unless it either found Walker not guilty of second-degree
murder or could not reach a decision on second-degree murder. This also
directly contradicted the second-degree murder instruction and misstated
the law.

¶14             Our supreme court has instructed that we are to presume
juries follow their instructions. State v. Manuel, 229 Ariz. 1, 6, ¶ 24, 270 P.3d
828, 833 (2011). The instructions, taken together and considered in context,
contradicted each other, were confusing, misleading, and misstated the law.
If the jury followed these instructions and the verdict form, it would not
have been able to consider whether the offense was provocation
manslaughter. This was fundamental, prejudicial error that denied Walker
a fair trial on the homicide charge.


                                       6
                            STATE v. WALKER
                            Decision of the Court

¶15           In its answering brief, the State acknowledges the instructions
and verdict form were incorrect but argues the error was harmless because
the evidence did not support instructing the jury on provocation
manslaughter. We reject the State’s argument; the trial evidence amply
supported instructing the jury on provocation manslaughter. State v.
Rodriguez, 192 Ariz. 58, 61, ¶ 16, 961 P.2d 1006, 1009 (1998) (party is entitled
to have jury instructed on any theory reasonably supported by the
evidence).

¶16          Walker testified he and his ex-wife were still “husband and
wife” despite their divorce, and considered his ex-wife his “property.”
Friends and neighbors testified Walker and his ex-wife presented
themselves as a couple.

¶17           Walker viewed the victim as a “problem” and did not want
the victim around his ex-wife or his children. Walker testified that several
years before the attack, his ex-wife admitted she had an affair with the
victim while she and Walker were still married. Although she promised
Walker the victim would no longer be part of her life, several months later
Walker discovered the victim at a park with his wife and children. Walker
then attacked the victim. Less than two months before Walker found his
ex-wife in bed with the victim, Walker threatened the victim in a Facebook
post after finding a picture of his two children on the victim’s Facebook
page.

¶18            Walker testified that given all this, he “freaked out” and “lost
it” when he saw the victim in bed with the woman he still considered his
wife. Walker believed his ex-wife and the victim were cheating on him
again and told the jury that was why he grabbed the baseball bat and struck
the victim in the head.

¶19          This evidence was more than sufficient to support instructing
the jury on provocation manslaughter. Indeed, at the close of the defense
case, the superior court acknowledged, “It is, in many ways, a classic
manslaughter situation.” That Walker’s defense and the supporting
evidence may have been imperfect or unpersuasive—as the State argues on
appeal—presented issues for the jury to decide. State v. Cid, 181 Ariz. 496,




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                            STATE v. WALKER
                            Decision of the Court

500, 892 P.2d 216, 220 (App. 1995) (credibility of the evidence and its weight,
if any, are matters for the jury to decide).2

¶20            The State also argues the error was harmless because
provocation manslaughter should apply only when a defendant “catches”
a spouse in an adulterous relationship. We reject that argument. First,
A.R.S. § 13-1103(A) defines provocation manslaughter broadly—as the
commission of second-degree murder “upon a sudden quarrel or heat of
passion resulting from adequate provocation by the victim.” Second, on its
face, the statute is not conditioned on a pre-existing spousal relationship.
See Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230 (1996) (when
interpreting a statute, appellate court looks to its plain language as the best
indicator of legislative intent). And third, the State’s argument cannot be
squared with the Arizona Supreme Court’s decision in State v. Harwood, 110
Ariz. 375, 519 P.2d 177 (1974). There, the defendant, who was not married
to the victim, shot her when she threatened to follow him home from a bar
and cause a disturbance at his house. Id. at 377, 519 P.2d at 179. The
supreme court reversed the defendant’s conviction because the superior
court had failed to instruct on provocation manslaughter. Id. at 380, 519
P.2d at 182.

¶21         We thus agree with Walker that the superior court committed
fundamental, prejudicial error in instructing the jury regarding provocation
manslaughter. We therefore reverse his conviction for second-degree
murder and remand for a new trial on that offense.

II.    The Remaining Counts and Issues

¶22          Walker’s opening brief asked that we reverse all of his
convictions. Walker’s arguments on appeal, however, concerned only his


              2The State also argues in its answering brief that Walker
conceded in his opening brief that his provocation manslaughter defense
was “not true.” We see no such concession in his opening brief, and the
State’s argument is based on a misreading of Walker’s briefing on appeal.
In his opening brief, Walker argued the superior court should not have
excluded evidence that he claimed showed the victim was sexually preying
on his children, asserting that this evidence further explained why he
attacked the victim—he discovered the victim in his home with access to
his children, and he believed the victim was “preying upon his young
children.” He then argued that without this evidence, the State was easily
able to demolish his provocation manslaughter defense at trial as “not
true.”


                                      8
                          STATE v. WALKER
                          Decision of the Court

conviction for second-degree murder. He did not argue that any of the
asserted errors affected his other convictions or sentences. Therefore, we
affirm Walker’s convictions and sentences on the other counts.

¶23          Finally, because we reverse and remand Walker’s conviction
for second-degree murder, we have not addressed the alleged prosecutorial
misconduct or the superior court’s preclusion of evidence. Our decision
does not prevent Walker from re-litigating on remand the admissibility of
the evidence precluded by the superior court.

                            CONCLUSION

¶24          We reverse Walker’s conviction for second-degree murder
and remand for proceedings consistent with this decision. We affirm
Walker’s other convictions and sentences.




                                 :AA




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