State v. Gipson

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-11-0282-PR
Appellee, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CR 10-0381
GARY WAYNE GIPSON, JR., )
) Maricopa County
Appellant. ) 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 Phoenix
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

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 Huff went to the door while his father waited in the

car. 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. The State did

not seek the death penalty. 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 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.” Id.

¶6 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. 625, 644-45

(1980), to instruct on lesser included offenses. In State v.

Vickers, this Court interpreted Beck to require sua sponte

instructions in capital cases on all lesser included offenses

supported by the evidence. 129 Ariz. 506, 513, 633 P.2d 315,

322 (1981). 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.”) (citing Spaziano v.

Florida, 468 U.S. 447 (1984)). 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.” Krone, 182 Ariz.

at 323, 897 P.2d at 625. 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.” Id.

On appeal, Rodriguez claimed that the court’s failure 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. Id.

¶11 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 requests

those instructions, and the defendant objects”). Indeed, our

rules make clear that the State is entitled to lesser included

instructions when the evidence so warrants. See Ariz. R. Crim.

5
P. 13.2(c) cmt. (noting that Rule 13.2(c) “clarifies the

prosecutor’s right to request instructions as to 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 on any offense for which there is evidentiary

support and for which a verdict form is submitted to the

jury.”).

B.

¶12 Alternatively, Gipson argues that the trial judge

erred by instructing on manslaughter over both parties’

objections. This argument also fails.

¶13 We once required trial judges to instruct on every

lesser included offense supported by the evidence in all

homicide cases, whether or not such an instruction was

requested. See State v. Madden, 104 Ariz. 111, 114, 449 P.2d

39, 42 (1969). But that approach was subsequently abandoned

through an amendment to Arizona Rule of Criminal Procedure

21.3(c). See Ariz. R. Crim. P. 21.3(c) cmt. 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 Although Rule 23.3 does not mandate that

a lesser included 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 and the state to a lesser included offense

instruction. “In general the trial judge 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 We agree with the approach taken by the Garcia court.

When 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 rights or contravene any Arizona

statute or rule. 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

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