A man convicted of a 2017 murder is entitled to a new trial, the state Court of Appeals has ruled.
The judges said there is no question but that Roger Delane Wilson killed Jose Arvizu, 22, in an incident outside of the Sierra Vista home of Wilson’s mother. Wilson admitted to shooting him with a shotgun.
But the three-judge panel said Cochise County Superior Court Judge Timothy Dickerson was wrong to not tell the jury that Arizona law allows people to use deadly physical force to prevent certain crimes. And armed with that information, the appellate court said, the jurors might have concluded the shooting was justified and voted to acquit Wilson of first-degree murder. The verdict resulted in Wilson being sentenced to life behind bars.
There had been some history between the two men over a period of time, including accusations that Arvizu was burglarizing Wilson’s house, court records show. There even was a physical altercation.
On the night of the shooting there was a new argument, with Wilson saying he had a shotgun with a shell because “he did not know if he was gonna have to use it.’’
Wilson drove to his mother’s house in Sierra Vista only to have Arvizu show up. Wilson said Arvizu “swelled his chest out’’ and lunged at him “with intent.’’ Wilson shot Arvizu once with the shotgun he had in the truck.
An autopsy revealed that Arvizu had a “toxic concentration’’ of methamphetamine in his system, with a witness testifying that can make someone impulsive and aggressive.
Dickerson did agree to instruct the jury about Arizona law on self defense. But he refused requests for other instructions, including crime prevention.
Appellate Judge Karl Eppich, writing for the court, said that was a mistake.
Arizona law says an individual is entitled to use both physical force, including deadly force, against another to the extent the person “reasonably believes’’ it is immediately necessary to prevent the commission of certain crimes. These include aggravated assault either causing serious physical injury, or with a deadly weapon or dangerous instrument.
“There is no duty to retreat’’ Eppich said. And he said the law applies not only to an individual’s home, place of business or land that is owned but also “any other place in this state where a person has a right to be.’’
He said Arizona law entitles defendants to have jurors instructed “on any theory of the case reasonably supported by the evidence.’’ More to the point, Eppich said even the “slightest evidence’’ of justification is sufficient to require jurors be told about it.
And in this case, the appellate court judge said, there was sufficient evidence to support telling jurors of the crime-prevention defense.
Eppich also said that telling jurors that Wilson had a right to self defense was insufficient.
He said the state’s self-defense laws permit someone to act when another person is using or attempting to use physical force.
“But verbal threats are not enough,’’ Eppich wrote. “In contrast, under a theory of crime prevention, there is no requirement that another use or attempt to use force,’’ only that the person reasonably believed it was necessary to prevent a crime.
That, the appellate judge said, is different.
“The effect of the crime prevention privilege is to allow a person to use force in preventing a crime, rather than compel him to wait the commission of the unlawful act,’’ Eppich said.
And in this case, he said, a jury could have found that Wilson reasonably believed that Arvizu was going to assault him — a conclusion which would have resulted in a different verdict.
There was no immediate response from the Cochise County Attorney’s Office.
