                               IN THE
              ARIZONA COURT OF APPEALS
                            DIVISION TWO


                          STATE OF ARIZONA,
                              Appellee,

                                 v.

                          RONALD VASSELL,
                             Appellant.

                      No. 2 CA-CR 2015-0004
                      Filed September 24, 2015


          Appeal from the Superior Court in Pima County
                       No. CR20131007005
            The Honorable Richard D. Nichols, Judge

                             AFFIRMED


                             COUNSEL

Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
Counsel for Appellee

Peter B. Keller, Tucson
Counsel for Appellant
                         STATE v. VASSELL
                         Opinion of the Court


                                OPINION

Presiding Judge Miller authored the opinion of the Court, in which
Judge Espinosa concurred and Chief Judge Eckerstrom specially
concurred.


M I L L E R, Presiding Judge:

¶1           After a jury trial, Ronald Vassell was convicted of
conspiracy to possess marijuana for sale, possession of a deadly
weapon during a felony drug offense, and endangerment arising out
of the discharge of a firearm during the execution of a search
warrant. He raises a single issue on appeal—whether the trial court
erred by declining his request to instruct the jury that his shooting at
police officers serving the search warrant may have been justified.
For the reasons that follow, we affirm the court’s ruling and
Vassell’s convictions.

                                 Facts

¶2           We view the facts in the light most favorable to Vassell
as the party requesting the instruction. See State v. King, 225 Ariz. 87,
¶ 13, 235 P.3d 240, 243 (2010). In November 2012, Tucson police
obtained a search warrant to investigate suspected narcotics activity
in a residence. Because of the dangers associated with a firearm in
this investigation, the magistrate issued a “no-knock” warrant that
authorized the police to break into the residence.1 A SWAT team
comprised of ten officers was directed to execute the warrant. The


      1 See A.R.S. §§ 13-3915(B), 13-3916(B)(3) (“On a reasonable
showing that an announced entry to execute the warrant would
endanger the safety of any person . . . the magistrate shall authorize
an unannounced entry” that includes authority to break into the
residence.). Moreover, a person may not use or threaten to use
physical force to obstruct a peace officer acting under color of
authority from enforcing the penal law. See A.R.S. § 13-2402(A)(2).


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                        Opinion of the Court

SWAT officers wore uniforms that had the word “POLICE” on the
front, back, side, and shoulder.

¶3           The officers testified that SWAT members receive
specialized training, possess particular skills, and carry extra
equipment. They operate in two-person teams, each with a
particular assignment. In this case, their goal was to secure a quick
entry into the house, but immediately announce their status as
police officers entering the residence to serve a search warrant. The
“door” officer tried the front door, found it to be locked, and then
used a metal battering ram to quickly open the door. As the door
was struck with the battering ram, all ten SWAT officers began
yelling out, “Tucson Police, search warrant, get on the ground,” and
they continued to do so while they were inside. An officer also
activated a loudspeaker device that repeatedly announced “Tucson
Police Department, search warrant” in both English and Spanish, at
a volume loud enough to be heard within the house.

¶4            The door officer had to give the door “a couple hits” to
open it fully, because a couch was partially blocking the door. The
first officer to enter the house, who was the designated “point”
testified:

            [T]he first time [the ram] hit the door, I
            began making announcements, “police
            search warrant, police, search warrant,”
            and I keep repeating those until the door
            comes open. And then after the door came
            open and I began my entry, I transitioned
            my commands to “police, get down,” to
            give direction to anybody inside to get
            down on the floor.

The house was dark, and the police used “pretty bright flashlights”
affixed to their weapons to see. When the point officer entered, he
saw a man later identified as Vassell “semi-crouched” on the couch
and beginning to stand up. The point officer saw that Vassell was
holding a rifle and immediately yelled, “[P]olice, drop it.” Vassell
ran toward the hallway, lifting the rifle up over his shoulder so that



                                  3
                        STATE v. VASSELL
                        Opinion of the Court

it pointed back toward the officers as he went.2 In the face of what
the point officer identified as a lethal threat to officer safety, he
disengaged the safety on his own rifle. He attempted to deploy a
flash bang device into the hallway to provide cover for the other
officers, but his finger slipped and he accidentally fired one shot
from his gun. He then reengaged the gun’s safety and successfully
deployed the flash bang down the hallway.

¶5            The point officer informed the sergeant that he had seen
a man with a rifle run into the hallway. The sergeant commanded
the officers to exit the house. The point officer then heard the first
gunshot coming from somewhere down the hall. He held his
position while the other officers exited and then, as he turned to exit
the house himself, he heard a second gunshot from down the hall.
The door officer testified that the time from the moment the door
was breached until he heard the gunshots and the flash bang in the
hallway was “maybe about 15 to 20 seconds” altogether. The point
officer testified that the time when he entered the house until he
accidentally fired his weapon was about ten to fifteen seconds. A
third officer testified, “It was all very, very quick.”

¶6           Police officers surrounded the house and waited. After
several hours, Vassell surrendered without further incident. No one
else was in the house that night. A subsequent search uncovered
more than fourteen pounds of marijuana, as well as various indicia
of marijuana packaging and shipping. Later analysis determined
the two shots from the hallway had been fired from a .223-caliber
rifle from inside the hall bathroom. A .223-caliber rifle was found
leaning against a wall in another room.




      2 About     this time, another officer detonated a light-sound
distraction device, also known as a “flash bang,” outside of the
house in the backyard, in order to try to draw the attention of
anyone inside toward the back of the house. The door officer
testified that SWAT officers use flash bangs “as a distracting device
. . . to kind of throw—throw the attention off of anybody . . . inside
the house.”


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                         STATE v. VASSELL
                         Opinion of the Court

¶7           At trial, a police officer testified that criminals
frequently impersonate police officers when staging home invasions.
At the close of evidence, defense counsel requested a jury instruction
on the defense of justification, arguing there was a question of fact as
to whether Vassell had fired the two shots in self-defense against the
perceived use of unlawful physical force. The trial court denied this
request, ruling the evidence did not support a justification
instruction because the police had used only lawful force. Vassell
was convicted and filed a timely appeal. We have jurisdiction
pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

                              Discussion

¶8           Vassell contends the trial court erred when it denied his
request for a justification instruction on the endangerment count.
We will not disturb a trial court’s decision to refuse a jury
instruction absent “a clear abuse of . . . discretion and resulting
prejudice.” State v. Ruggiero, 211 Ariz. 262, ¶ 6, 120 P.3d 690, 692
(App. 2005).

¶9            A party is entitled to a jury instruction on any theory of
the case which the evidence reasonably supports. State v. Bolton, 182
Ariz. 290, 309, 896 P.2d 830, 849 (1995). “‘[T]he slightest evidence’”
of justification requires that a defendant be granted a justification
instruction, Ruggiero, 211 Ariz. 262, ¶ 10, 120 P.3d at 692, quoting
State v. Hussain, 189 Ariz. 336, 337, 942 P.2d 1168, 1169 (App. 1997);
however, the instruction need not be given “‘unless it is reasonably
and clearly supported by the evidence.’” Id. ¶ 10, quoting State v.
Walters, 155 Ariz. 548, 553, 748 P.2d 777, 782 (App. 1987); see also
State v. Strayhand, 184 Ariz. 571, 587-88, 911 P.2d 577, 593-94 (App.
1995) (instruction required if there is “evidence upon which the jury
could rationally sustain the defense”). The slightest evidence—not
merely an inference making an argument possible—is required
because speculation cannot substitute for evidence. Cf. In re Harber’s
Estate, 102 Ariz. 285, 294, 428 P.2d 662, 671 (1967); State v. Almaguer,
232 Ariz. 190, ¶ 19, 303 P.3d 84, 91 (App. 2013).

¶10        Vassell would have been “justified in threatening or
using deadly physical force against another . . . [w]hen and to the



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                         STATE v. VASSELL
                         Opinion of the Court

degree a reasonable person[3] would believe that deadly physical
force is immediately necessary to protect himself against the other’s
use or attempted use of unlawful deadly physical force.” A.R.S.
§ 13-405(A)(2). But the threat or use of physical force is not justified
“[t]o resist an arrest that the person knows or should know is being
made by a peace officer . . . whether the arrest is lawful or unlawful,
unless the physical force used by the peace officer exceeds that
allowed by law.” A.R.S. § 13-404(B)(2); State v. Fontes, 195 Ariz. 229,
¶¶ 11-12, 986 P.2d 897, 900-01 (App. 1998).

¶11           On appeal, as in the trial court, Vassell does not argue
that the police used unlawful or excessive physical force. Rather, he
maintains only that there was a question of fact as to whether he
knew or should have known that the people entering the home were
peace officers as opposed to home invaders. Where, as here, a
defendant claims self-defense to justify his use of physical force
against a peace officer who was using lawful force, the slightest
evidence that the defendant actually believed the individual was not
a peace officer is required to support a justification instruction. See,
e.g., Model Penal Code § 3.04 explanatory note (Am. Law Inst. 2001)
(“actor’s actual belief is sufficient” to support self-defense
justification) (emphasis added). Mere speculation that a defendant
might have believed the individual not to be a peace officer is
insufficient. Compare State v. Salazar, 24 Ariz. App. 472, 476, 539 P.2d
946, 950 (1975) (aggravated battery defendant not entitled to
instruction on lesser-included offense of battery where “no evidence
that the defendant did not know the officer he struck was a police


      3 Our   Supreme Court held that this language refers to “a
reasonable person in the defendant’s circumstances.” See King, 225
Ariz. 87, ¶¶ 11-12, 235 P.3d at 243 (construing A.R.S. § 13-404(A));
A.R.S. § 13-405(A)(1) (use of deadly physical force under § 13-405
must comport with § 13-404 to be justifiable). In the context of
justification, “the defendant’s circumstances” include what the
defendant knew at the time. See, e.g., State v. Andersen, 177 Ariz. 381,
386, 868 P.2d 964, 969 (App. 1993) (defendant not entitled to self-
defense justification instruction where he did not know or suspect
victim armed).


                                   6
                         STATE v. VASSELL
                         Opinion of the Court

officer”) (emphasis added), with State v. Skinner, 118 Ariz. 517, 519-
20, 578 P.2d 196, 198-99 (App. 1978) (aggravated battery defendant
entitled to instruction on lesser-included offense of battery where he
actually denied knowing that victim was plain-clothes police officer
attempting to lawfully arrest him).

¶12           Vassell’s mistaken identity argument finds no support
in the record. For instance, there is no evidence that he believed
home invaders sometimes impersonate police, 4 nor that he actually
thought the SWAT team members to be home invaders when he
fired two shots from the hall bathroom. The absence of “‘the
slightest evidence’” to that effect is dispositive. Ruggiero, 211 Ariz.
262, ¶ 10, 120 P.3d at 692-93, quoting Hussain, 189 Ariz. at 337, 942
P.2d at 1169.

¶13          Our concurring colleague suggests that a defendant will
always have to testify at trial to be entitled to a justification
instruction. We disagree. For example, in Cadle v. State, 610 S.E.2d
574, 576 (Ga. Ct. App. 2005), the defendant’s pretrial statement to
police explaining why he shot a police officer was admitted, thereby
providing evidence to support a justification defense even though
defendant did not testify. In this case, the record reflects no
statement by Vassell during the multi-hour event or afterwards to
police investigators that he mistakenly believed the SWAT officers
were anything but what they purported to be.

¶14          In contrast, ample evidence contradicted his speculative
inference that the jury could have reasonably concluded he did not
know and should not have known that the intruders were peace
officers. Before Vassell pointed his rifle toward the officers and fired

      4 The  concurrence’s suggestion that the jury could conclude
that on account of being a drug trafficker, Vassell would have
known of the “occupational risk” that a home invader might come
to steal “his contraband,” requires an assumption that Vassell was in
fact a drug trafficker with contraband. This proposition reverses the
presumption of innocence, a principle so fundamental to our system
of justice as to be “‘axiomatic.’” Taylor v. Kentucky, 436 U.S. 478, 483
(1978), quoting Coffin v. United States, 156 U.S. 432, 453 (1895).


                                   7
                         STATE v. VASSELL
                         Opinion of the Court

the first shot, he would have heard the shouts of police officers
announcing their presence and purpose, and he could have seen
multiple officers with the word “POLICE” on multiple parts of their
uniforms.

¶15          Vassell appears to argue that despite notice the
intruders appeared to be police or verbally self-identified as police,
there was still a question of fact as to whether he knew or should
have known that these particular intruders were in fact police.
Assuming for the purpose of argument that Vassell knew home
invaders sometimes impersonate police and use tactics like the ones
here, then he necessarily also knew that those being impersonated—
actual police—use such tactics as well. Therefore, even under his
theory, Vassell knew there was at least a real and significant
possibility he was shooting at actual police officers.
Section 13-404(B)(2) explicitly rejects justification as a defense where
a person has such knowledge absent unlawful physical force by the
officer.

¶16          The Washington Court of Appeals came to a similar
conclusion in State v. Westlund, 536 P.2d 20, 24-25 (Wash. Ct. App.
1975). There, the court considered whether to adopt a rule that a
suspect could be justified in resisting arrest if he reasonably but
mistakenly believed he was about to be seriously injured by police
use of excessive force. Id. The court rejected this test, holding
instead that resistance is justified only if the suspect was “actually
about to be seriously injured” by excessive force. Id. The court
recognized that where a person resists arrest, “the situation can
degenerate to the point that what should have been a simple lawful
arrest leads to serious injury or death to the arrestee, the police or
innocent bystanders.” Id. at 25. The court concluded that an actual-
circumstances standard is necessary to protect the arrestee,
bystanders, and police officers. Id.

¶17           In short, the evidence showing immediate, clear police
presence was not challenged by any evidence tending to show that
Vassell did not know the intruders were peace officers. Thus, the
trial court did not abuse its discretion when it refused to instruct the
jury on justification—a theory of the case that was not reasonably



                                   8
                         STATE v. VASSELL
                         Opinion of the Court

and clearly supported by even the slightest evidence. See A.R.S.
§ 13-404(B)(2); Ruggiero, 211 Ariz. 262, ¶ 10, 120 P.3d at 692-93.

¶18           As a final matter, we outline why we respectfully
disagree with our concurring colleague that this case should be
resolved on procedural grounds. Citing Rule 21.2, Ariz. R. Crim. P.,
our colleague would affirm on the basis that Vassell has not
properly preserved his request for a justification instruction because
he did not request it in writing below. First, we note that the state
did not object to the oral form of Vassell’s request, nor cite Rule 21.2
on appeal. A party’s failure to argue a claim ordinarily constitutes
waiver of that claim. See, e.g., State v. Bolton, 182 Ariz. 290, 298, 896
P.2d 830, 838 (1995). Second, while we agree with the concurrence
that federal case law interpreting Rule 30, Fed. R. Crim. P., can be
persuasive authority in interpreting Rule 21.2, Ariz. R. Crim. P., we
find United States v. Upton, 559 F.3d 3 (1st Cir. 2009), distinguishable.
The issue in Upton was the untimeliness of an oral request for a jury
instruction, not the fact that it was an oral request. Upton, 559 F.3d
at 9 (“The district judge acted within her discretion to deny Upton’s
requested instruction because the request was untimely.”) (emphasis
added). Here, Vassell’s counsel timely requested a justification
instruction. See Ariz. R. Crim. P. 21.2. Third, argument by counsel
made clear that the trial court knew the precise legal theory of
justification for which Vassell was requesting an instruction: use of
deadly physical force in self-defense pursuant to A.R.S. § 13-405.
Vassell’s counsel requested the instruction on the theory that Vassell
used deadly physical force “in response to the threat to his life
presented by what was going on,” i.e., in self-defense under A.R.S.
§ 13-405; the prosecutor countered that there was no evidence of
“unlawful” use of force by police, in a clear reference to A.R.S. § 13-
405(A)(2); and the court quoted extensively from A.R.S. § 13-404(B),
which is incorporated into A.R.S. § 13-405 under § 13-405(A)(1), in
declining to give the instruction. Thus there was no confusion as to
which justification statute was at issue.

¶19          Finally, even if the concurrence is correct that
instructions must always be requested in writing, Vassell still could
have submitted a timely written instruction had the trial court
shown openness to instructing the jury on justification during the


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                         STATE v. VASSELL
                         Opinion of the Court

sidebar conference.5 But “[w]here, as here, the trial court had by its
ruling excluded the issue of self-defense from the jury’s
consideration, it was obviously superfluous to submit a proposed
instruction for the court’s consideration” in writing. State v. Johnson,
108 Ariz. 42, 44, 492 P.2d 703, 705 (1972).               Under these
circumstances, we do not consider Vassell’s failure to put his request
in writing fatal to his argument that the trial court erred in not
giving the instruction. “The record indicates that the trial court
acknowledged [Vassell’s] requested instructions, and some
discussion was had as to their propriety. Therefore, the trial court
was adequately informed of [his] request despite the absence of a
writing.” United States v. Krapp, 815 F.2d 1183, 1187 (8th Cir. 1987).

                             Disposition

¶20          For the foregoing         reasons,   we   affirm   Vassell’s
convictions and sentences.

E C K E R S T R O M, specially concurring in the judgment:

                         Evidentiary Support

¶21           As the lucidly written majority opinion acknowledges, a
party is entitled to a jury instruction on “any theory of the case
which the evidence reasonably supports.” And “[t]he slightest
evidence” of justification requires the court to provide an instruction
on the pertinent defense—a low threshold designed to preserve the
jury’s exclusive role in deciding factual disputes. See State v. Plew,
150 Ariz. 75, 78, 722 P.2d 243, 246 (1986), disapproved on other grounds
by State v. King, 225 Ariz. 87, ¶¶ 9, 12, 235 P.3d 240, 242, 243 (2010);
State v. Johnson, 108 Ariz. 42, 43, 492 P.2d 703, 704 (1972). In
evaluating whether the defendant has cleared this threshold, our
supreme court commands that we view the evidence in the light
most favorable to the party requesting the instruction. King, 225
Ariz. 87, ¶ 13, 235 P.3d at 243.

      5For  instance, Vassell could have submitted the ready-made
written instructions found in State Bar of Arizona, Revised Arizona
Jury Instructions (Criminal) Std. 4.04, 4.04-1, and 4.05 (2015), which
are modeled after the relevant statutes.


                                  10
                        STATE v. VASSELL
                        Opinion of the Court

¶22          Applying those standards here, Vassell presented
ample circumstantial evidence to be entitled to a jury determination
of whether he discharged his weapon to defend himself against
unknown intruders. As my colleagues emphasize, the state indeed
presented substantial evidence suggesting that Vassell could have
known that the intruders were police officers: police announced
their identity both vocally and perhaps with loudspeakers upon or
shortly after entry, and the officers entering wore uniforms with the
word “POLICE” displayed in large letters across their backs and in
smaller letters on each shoulder. 6 But Vassell countered by
presenting evidence from which a jury could have reasonably
inferred that he initially believed the officers were instead home
intruders with criminal intentions.

¶23           That evidence demonstrated that the SWAT team
executed a “no knock” warrant on the residence at 10:30 p.m. The
officers testified they carefully choreographed the operation to both
surprise and disorient any inhabitants. Accordingly, the entry team
deployed from a “purposely clandestine” unmarked moving van
parked immediately in front of Vassell’s residence. The police
parked marked vehicles in locations not visible from the residence,
but obscured behind the garage on one side and a wall on the other.
The emergency lights of those vehicles were not activated until the
ten-person entry team had “gotten through the front door.”

¶24         The officers observed that the house was unlit on the
inside—a fact that would allow the jury to infer Vassell was asleep
on the couch until entry was attempted. See State v. Aguilar, 169
Ariz. 180, 182, 818 P.2d 165, 167 (App. 1991) (jury may rely on
common sense and experience). After breaching the door with the
second stroke of the battering ram, the officers entered in a crouched
posture with bright flashlights shining from their weapons as the


      6The  above description of the entry team’s uniform is taken
from photographic exhibits admitted at trial. To the extent a police
identifier could be found on the front of the uniform as well, this
was obscured by tactical gear and weapons, and we must view the
evidence in the light most favorable to Vassell.


                                 11
                         STATE v. VASSELL
                         Opinion of the Court

first flash grenade7 exploded to the rear of the residence. As they
entered, they saw Vassell getting up from the couch holding a rifle.
They shouted, “[P]olice, drop it,” as Vassell ran toward the hallway
with his back to them. At the same time, an officer erroneously
discharged his weapon, then successfully discharged a second flash
grenade in the hallway. As Vassell ran into the hallway bathroom,
he pointed his rifle behind his shoulder and fired two shots: one
into a hallway closet opposite the bathroom door and the other into
the floor of the shower. When the shots were fired, no officers were
in the hallway.

¶25           The officers testified that the entire time from entry into
the home until the officer’s discharge of the weapon was ten to
fifteen seconds; “[i]t was all very, very quick.” No meaningful
period of time passed between the accidental shot by the officer and
the two shots fired by Vassell; those shots occurred in close
succession. And, within those seconds, Vassell was distracted by
two flash grenades which each created an extremely loud noise and
a blinding flash of light. According to the conflicting testimony of
the officers, the jury could infer either that the loudspeakers were
not utilized at all or not activated until after the breach of the door.
Lastly, Officer D.M., of the Counter Narcotics Alliance, testified that
“home invasion crews,” intruders who seek to steal a drug
trafficker’s drugs and money, “all” claim to be police officers to gain
entry and frequently disguise themselves as the police.

¶26          From this testimony—elicited entirely from police
officers themselves—a jury could reasonably infer that (1) the only
vehicle visible to Vassell before the entry occurred was an unmarked
van; (2) therefore, if Vassell had looked out the window, he would
have seen his assailants emerging from an unmarked van not a
police vehicle; (3) the deafening noise of the two flash grenades
would have made it difficult to hear any officers vocalizing that they
were police; (4) the flashlights aimed at Vassell in an otherwise dark
house would have made it difficult, if not impossible, for him to
make out the dress of the intruders, much less read the words

      7 The  officers alternatively described this as a “light sound
distraction device” or a “flash bang.”


                                   12
                         STATE v. VASSELL
                         Opinion of the Court

“POLICE” that were prominent only on the backs of the officers’
camouflage uniforms; and (5) the officer’s erroneous discharge of his
weapon as Vassell ran toward the bathroom would have not only
reinforced his belief that the intruders were not police but also
indicated that the force used against him exceeded that allowed by
law. See A.R.S. § 13-404(A), (B)(2).

¶27             The majority emphasizes that Vassell, who chose not to
take the witness stand, never testified or made any post-arrest
statements that he thought the entrants were intruders before he
discharged the rifle. The majority therefore characterizes the
defense theory as speculative. But in criminal cases, the state
routinely infers a defendant’s intentions and knowledge from
circumstantial evidence; the defense is no less entitled to do so. See,
e.g., State v. Jensen, 217 Ariz. 345, ¶¶ 7, 15, 173 P.3d 1046, 1050, 1052
(App. 2008) (circumstantial evidence sufficient to show defendant
knowingly possessed child pornography); State v. Hull, 15 Ariz.
App. 134, 135, 486 P.2d 814, 815 (1971) (knowing possession of
marijuana established by circumstantial evidence). Of course, the
defendant possesses a Fifth Amendment right both to decline a
police interview after arrest and decline to take the witness stand at
trial. In asserting those rights, a defendant does not forgo the right
to a defense instruction so long as the defendant presents other
evidence supporting the underlying theory of the case. See State v.
Stuard, 176 Ariz. 589, 603, 863 P.2d 881, 895 (1993) (“Arizona law
makes no distinction between circumstantial and direct evidence.”).
Moreover, any pretrial statements made by Vassell supporting his
defense would have likely been inadmissible as self-serving hearsay.
See State v. Barger, 167 Ariz. 563, 566, 810 P.2d 191, 194 (App. 1990).

¶28         Here, the evidence suggests both that Vassell was
sleeping on the couch, with which he partially blocked his front
door, and that he kept a rifle by his side as he did so. From this, a
jury could reasonably infer that he too was aware of the
occupational risk that a “home invasion crew” might attempt to
enter his home to steal his contraband.

¶29         As the majority’s characterization of the same evidence
makes clear, the above facts are subject to more than one reasonable
inference. But, in evaluating whether Vassell was entitled to an

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                         Opinion of the Court

instruction on his justification theory, we are duty-bound to view
the facts, and the inferences therefrom, in the light most favorable to
Vassell.8 So viewed, I respectfully submit that he presented far more
than slight evidence in support of a justification defense. He was
therefore entitled to an instruction on that defense to the extent he
properly requested it. For the reasons set forth below, however, I
would conclude he failed to do so.

                               Forfeiture

¶30            Rule 21.2, Ariz. R. Crim. P., states that written requests
for instructions “shall [be] submit[ted]” to the trial court either “[a]t
the close of evidence or . . . earlier.” They also “shall [be] furnish[ed]
. . . to the other parties.” This rule is drawn from Rule 30, Fed. R.
Crim. P., which is substantively the same. See Ariz. R. Crim. P. 21.2
cmt. Given the rule’s clear terms, a claim of error is not preserved
when, as here, a defendant fails to request an instruction in writing.
United States v. Upton, 559 F.3d 3, 8 (1st Cir. 2009). In the federal
system, plain error review normally results from the absence of a
proposed written instruction. E.g., United States v. Stevens, 380 F.3d
1021, 1026 (7th Cir. 2004); United States v. McGrath, 811 F.2d 1022,
1024 (7th Cir. 1987). In Arizona, we apply the analogous standard of
fundamental error review when an instruction-related issue has not
been preserved below, see State v. Schurz, 176 Ariz. 46, 54, 859 P.2d
156, 164 (1993); State v. Gendron, 168 Ariz. 153, 154-55, 812 P.2d 626,
627-28 (1991), except in those very rare circumstances involving
structural error, which is not present here. See State v. Valverde, 220
Ariz. 582, ¶¶ 9-12 & n.2, 208 P.3d 233, 235-36 & 236 n.2 (2009)
(discussing different standards of appellate review); see also Castillo
v. McFadden, 399 F.3d 993, 1003 (9th Cir. 2004) (noting fundamental
error is similar to, but somewhat broader than, federal plain error

      8 The  state argues that the police vehicles were visible to
Vassell, with their lights illuminated at or before entry; the
loudspeakers were activated simultaneously with the entry; and the
“POLICE” markings were clearly visible in various places on the
officers’ bodies. To the extent the record can be so construed, such
contentions do not describe the evidence in the light most favorable
to Vassell.


                                   14
                         STATE v. VASSELL
                         Opinion of the Court

standard); State v. Henderson, 209 Ariz. 300, n.4, 100 P.3d 911, 916 n.4
(App. 2004) (“plain error” is “the closest analogue to our doctrine of
fundamental error”), vacated in part on other grounds, 210 Ariz. 561,
115 P.3d 601 (2005).

¶31           These requirements of Rule 21.2 are neither onerous nor
hyper-technical, but instead are based on sound judicial policy. The
rule is designed to make an attorney or party contemplate and
carefully select or draft proposed instructions before the case closes,
and to submit and disclose those instructions before the settlement
conference on instructions occurs. See Ariz. R. Crim. P. 21.3(a).
Compliance with Rule 21.2 thereby ensures that (1) any other party
receives adequate disclosure of the instruction, (2) the trial court is
afforded the opportunity to carefully consider and rule upon the
request, and (3) a reviewing court has a clear, written record of the
instruction that was sought. See Armstrong v. United States, 228 F.2d
764, 768 (8th Cir. 1956); cf. Ariz. R. Evid. 103(a)(2) (requiring party to
make record of evidence not admitted at trial to preserve claim for
appeal). Placing a specific written instruction on the record also
allows specific objections to be made concerning that instruction, as
is required by Rule 21.3(c), Ariz. R. Crim. P., to preserve claims of
error. See State v. Toney, 113 Ariz. 404, 408, 555 P.2d 650, 654 (1976);
State v. Avila, 141 Ariz. 325, 329, 686 P.2d 1295, 1299 (App. 1984).

¶32           These benefits of Rule 21.2 impose no countervailing
burdens, especially for a criminal defendant. Competent defense
counsel will investigate and formulate any defenses, such as
self-defense or other justification, long before trial. Indeed, counsel
must do so to comply with the duty to disclose defenses under
Rule 15.2(b), Ariz. R. Crim. P. By the close of the state’s evidence, at
the very latest, any such defense theory should be refined and
sufficiently articulated so that counsel can “argue the case
intelligently to the jury.” United States v. Gaskins, 849 F.2d 454, 458
(9th Cir. 1988). Demanding a written instruction from a party thus
encourages the diligence and detail-oriented approach to a case that
should already be observed.

¶33         Unfortunately, the record here suggests that oral
requests for instructions are common practice, at least in Pima
County. No pretrial disclosure of defenses is found in our record.

                                   15
                          STATE v. VASSELL
                          Opinion of the Court

Furthermore, Vassell requested “a justification instruction” orally,
not in writing, and without clearly specifying either the statute
authorizing the instruction or the language that would comprise it.
As a result of his informal practice, the state did not receive the
mandatory disclosure of the proposed instruction to which it was
entitled under Rule 21.2. Yet the state made no objection to the lack
of a written instruction or the disclosure thereof, and the trial court
did not base its ruling on any of these deficiencies.

¶34          While neither trial courts nor parties may be inclined to
observe the requirements of Rule 21.2, we are all bound by the rules
of procedure promulgated by our supreme court and cannot
disregard or modify them. See Cullen v. Auto-Owners Ins. Co., 218
Ariz. 417, ¶ 10, 189 P.3d 344, 347 (2008). Changes to the rules should
occur through the designated rulemaking process. See Craig v. Craig,
227 Ariz. 105, ¶ 15, 253 P.3d 624, 626 (2011).

¶35          Because Vassell failed to propose a written justification
instruction in accordance with Rule 21.2, that issue has not been
preserved on appeal. See Ariz. R. Crim. P. 21.3(c). He therefore has
the burden of demonstrating fundamental, prejudicial error to be
entitled to relief. See Valverde, 220 Ariz. 582, ¶ 12, 208 P.3d at 236.
And because he did not argue or establish that the alleged error is
fundamental, he has not discharged his burden on appeal. See State
v. Moreno-Medrano, 218 Ariz. 349, ¶¶ 16-17, 185 P.3d 135, 140 (App.
2008).

¶36           Contrary to the majority’s suggestion, this case does not
fall within the limited exception established in State v. Johnson, 108
Ariz. 42, 492 P.2d 703 (1972). There, the trial court had raised and
rejected the issue of justification sua sponte during trial. Id. at 43, 492
P.2d at 704. On appeal, the state argued that the defendant could
not challenge this ruling because he had failed to submit a written
instruction below and, consequently, he had failed to set forth its
substance in haec verba, as was required by then-existing rules of
appellate procedure. Id. Our supreme court rejected this waiver
argument and found the issue preserved, noting that to propose a
written instruction would have been “obviously superfluous” under
the circumstances. Id. at 44, 492 P.2d at 705.



                                    16
                         STATE v. VASSELL
                         Opinion of the Court

¶37         Johnson does not address Rule 21.2, much less establish
a precedent that would eviscerate the rule’s plain, mandatory terms.
The case merely stands for the proposition that a party is not
required to undertake a futile act in order to preserve an issue for
appeal. Accord State v. Davis, 226 Ariz. 97, ¶ 14, 244 P.3d 101, 105
(App. 2010). In such a situation, the failure to comply with a rule
may be “excused.” Johnson, 108 Ariz. at 44, 492 P.2d at 705.

¶38          To the extent Johnson could stand for a somewhat
broader principle, it would be that courts should not blindly apply
the rule for requesting jury instructions so as to create “a ‘trap for
the unwary.’” United States v. Eiland, 741 F.2d 738, 742 (5th Cir.
1984), quoting United States v. Davis, 583 F.2d 190, 195 (5th Cir. 1978).
Unlike in Johnson, however, no such trap or excuse is present in this
case. Vassell’s failure to comply with Rule 21.2 was not precipitated
by an adverse ruling from the trial court or any unforeseeable
development. He simply elected not to comply with the rules when
he made his request. In overlooking that failure, this court renders
the express mandatory requirements of Rule 21.2 mere precatory
suggestions, subject to the whim of the litigants.

¶39           A more analogous and applicable line of Arizona case
law establishes that a trial court is entitled to reject an incomplete
jury instruction. State v. Price, 123 Ariz. 197, 199, 598 P.2d 1016, 1018
(App.), aff’d in part, rev’d in part on other grounds, 123 Ariz. 166, 166,
168, 598 P.2d 985, 985, 987 (1979); State v. Salazar, 24 Ariz. App. 472,
474, 476, 539 P.2d 946, 948, 950 (1975). A court need not parse or
rewrite instructions to make them correct, but may reject them
entirely based on any defect. See State v. Parker, 231 Ariz. 391, ¶ 54,
296 P.3d 54, 68 (2013); State v. Mitchell, 204 Ariz. 216, ¶ 22, 62 P.3d
616, 620 (App. 2003). In addition, a party who is dissatisfied with
the court’s instructions has a duty to submit an alternate proposed
instruction to the court. White v. Mitchell, 157 Ariz. 523, 527, 759 P.2d
1327, 1331 (App. 1988).9 Taken together, these precedents confirm
what Rule 21.2 strongly implies: parties have the primary obligation

      9 Pursuant   to Rule 21.1, Ariz. R. Crim. P., civil case law
concerning jury instructions ordinarily applies to criminal cases.
King, 225 Ariz. 87, ¶ 13, 235 P.3d at 243.


                                   17
                         STATE v. VASSELL
                         Opinion of the Court

to formulate jury instructions, not the court. Thus, when a
defendant argues the trial court failed to independently instruct the
jury on an issue, we will grant relief only if the matter was “vital to a
proper consideration of the evidence” and the lack of an instruction
“constitutes fundamental error.” Avila, 147 Ariz. at 337, 710 P.2d at
447.

¶40          Here, Vassell’s oral request for “a justification
instruction” attempted to foist upon the trial court the dual tasks of
selecting among the various justification statutes in chapter 4 of
title 13 and drafting an accurate jury instruction. Given that our
rules and clear jurisprudence entitle a court to reject a properly
submitted written instruction on the grounds that it is merely
incomplete, I cannot agree that we may overlook the failure to
submit any written instruction at all. This is especially so when, as
here, the instruction articulates a nuanced justification defense upon
which a party’s theory of the case will depend.

¶41           The majority’s conclusion that Vassell preserved his
jury-instruction claim is not supported by Arizona case law, in my
view, but rather inconsistent with it. That conclusion also is
contrary to clear federal precedent that should guide our
interpretation of our substantively identical procedural rule. See
Harper v. Canyon Land Dev., LLC, 219 Ariz. 535, ¶ 6, 200 P.3d 1032,
1034-35 (App. 2008). For the reasons stated above, I therefore concur
only in the judgment affirming the convictions and sentences.




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