duress defense in Arizona

2024The duress defense is codified in A.R.S. § 13- 412(A), which provides that [c]onduct which would otherwise constitute an offense is justified if a reasonable person would believe that he was compelled to engage in the proscribed conduct by the threat or use of immediate physical force against his person or the person of another which resulted or could result in serious physical injury which a reasonable person in the situation would not have resisted. ¶14 The use or threat of force necessary to support a duress defense “must be present, imminent and impending, and of such a nature as to induce

2018We have previously characterized immediate threatened harm as "present, imminent and impending." State v. Kinslow , 165 Ariz. 503 , 505-06, 799 P.2d 844 , 846-47 (1990) ; see also State v. Jones , 119 Ariz. 555 , 558, 582 P.2d 645 , 648 (App. 1978). ¶ 17 Although we have had few opportunities to consider what constitutes "present, imminent, and impending," other courts have found that an ongoing threat can satisfy that description for purposes of a duress defense.

2020See Chenowth, 71 Ariz. at 273–74. ¶86 Contrary to Riley’s argument, the duress instruction did not amount to a comment on the evidence.

2020See Chenowth, 71 Ariz. at 273–74. ¶86 Contrary to Riley’s argument, the duress instruction did not amount to a comment on the evidence.

2020See State v. Broughton, 156 Ariz. 394 , 397–98 (1988) (holding that prejudice requires a showing of more than mere speculation); State v. Munninger, 213 Ariz. 393 , 397 ¶ 14 (App. 2006) (holding that defendant could not show prejudice through speculation).

2020See State v. Broughton, 156 Ariz. 394 , 397–98 (1988) (holding that prejudice requires a showing of more than mere speculation); State v. Munninger, 213 Ariz. 393 , 397 ¶ 14 (App. 2006) (holding that defendant could not show prejudice through speculation).

2020See, e.g., State v. Champagne, 247 Ariz. 116 , 137 ¶ 60 (2019) (holding the trial court did not commit instructional error when, “without the voluntary intoxication instruction the jury could have rejected [defendant]’s claim of innocence but improperly concluded that his voluntary intoxication prevented him from forming the necessary intent for criminal liability”). ¶85 Nevertheless, even if the trial court erred in giving the duress instruction, such error was not fundamental because it did not amount to a comment on the evidence by the trial judge.

2020See, e.g., State v. Champagne, 247 Ariz. 116 , 137 ¶ 60 (2019) (holding the trial court did not commit instructional error when, “without the voluntary intoxication instruction the jury could have rejected [defendant]’s claim of innocence but improperly concluded that his voluntary intoxication prevented him from forming the necessary intent for criminal liability”). ¶85 Nevertheless, even if the trial court erred in giving the duress instruction, such error was not fundamental because it did not amount to a comment on the evidence by the trial judge.

2018We have previously characterized immediate threatened harm as "present, imminent and impending." State v. Kinslow , 165 Ariz. 503 , 505-06, 799 P.2d 844 , 846-47 (1990) ; see also State v. Jones , 119 Ariz. 555 , 558, 582 P.2d 645 , 648 (App. 1978). ¶ 17 Although we have had few opportunities to consider what constitutes "present, imminent, and impending," other courts have found that an ongoing threat can satisfy that description for purposes of a duress defense.

2018We have previously characterized immediate threatened harm as "present, imminent and impending." State v. Kinslow , 165 Ariz. 503 , 505-06, 799 P.2d 844 , 846-47 (1990) ; see also State v. Jones , 119 Ariz. 555 , 558, 582 P.2d 645 , 648 (App. 1978). ¶ 17 Although we have had few opportunities to consider what constitutes "present, imminent, and impending," other courts have found that an ongoing threat can satisfy that description for purposes of a duress defense.

2002State v. Farley, 199 Ariz. 542 , 19 P.3d 1258 (App.2001); 1 see also State v. Martinez, 202 Ariz. 507 , 47 P.3d 1145 (App.2002) (same). ¶ 7 But, relying on Patterson v. New York, 432 U.S. 197 , 97 S.Ct. 2319 , 53 L.Ed.2d 281 (1977), Jeffrey argues that § 13-205 cannot constitutionally place “the burden on the defense to prove duress by a preponderance” of the evidence because “a duress defense negates the mental state required for kidnapping.” In Patterson , the United States Supreme Court explained that, although the Due Process Clause requires a state to prove all the elements of a charged o

2002State v. Farley, 199 Ariz. 542 , 19 P.3d 1258 (App.2001); 1 see also State v. Martinez, 202 Ariz. 507 , 47 P.3d 1145 (App.2002) (same). ¶ 7 But, relying on Patterson v. New York, 432 U.S. 197 , 97 S.Ct. 2319 , 53 L.Ed.2d 281 (1977), Jeffrey argues that § 13-205 cannot constitutionally place “the burden on the defense to prove duress by a preponderance” of the evidence because “a duress defense negates the mental state required for kidnapping.” In Patterson , the United States Supreme Court explained that, although the Due Process Clause requires a state to prove all the elements of a charged o

2002Compare United States v. Mitchell, 725 F.2d 832 (2d Cir.1983) (state bears burden of disproving at least one element of duress defense beyond a reasonable doubt), and People v. Condley, 69 Cal.App.3d 999 , 138 Cal.Rptr. 515 (1977) (duress defense negates element of offense), with United States v. Johnson, 956 F.2d 894, 897 (9th Cir.1992) (“The defense [of duress] assumes that the defendant has voluntarily performed the criminal act; his or her will has not been so overcome that another choice was impossible; the act done was intentional.”), and State v. Riker, 123 Wash.2d 351 , 869 P.2d 43 (19

2002Compare United States v. Mitchell, 725 F.2d 832 (2d Cir.1983) (state bears burden of disproving at least one element of duress defense beyond a reasonable doubt), and People v. Condley, 69 Cal.App.3d 999 , 138 Cal.Rptr. 515 (1977) (duress defense negates element of offense), with United States v. Johnson, 956 F.2d 894, 897 (9th Cir.1992) (“The defense [of duress] assumes that the defendant has voluntarily performed the criminal act; his or her will has not been so overcome that another choice was impossible; the act done was intentional.”), and State v. Riker, 123 Wash.2d 351 , 869 P.2d 43 (19

2002See State v. Moorman, 154 Ariz. 578 , 744 P.2d 679 (1987) (state may constitutionally require defendant to prove insanity defense by clear and convincing evidence); Sierra-Cervantes (defendant bears burden of proving self-defense); Farley (requiring defendant to prove justification defense constitutional under Arizona Due Process Clause); State v. Preston, 197 Ariz. 461 , 4 P.3d 1004 (App.2000) (requiring defendant to prove entrapment defense by clear *114 and convincing evidence does not violate Due Process, Clause); see also Martinez (defendant bears burden of proving elements of crime preve

2002See State v. Moorman, 154 Ariz. 578 , 744 P.2d 679 (1987) (state may constitutionally require defendant to prove insanity defense by clear and convincing evidence); Sierra-Cervantes (defendant bears burden of proving self-defense); Farley (requiring defendant to prove justification defense constitutional under Arizona Due Process Clause); State v. Preston, 197 Ariz. 461 , 4 P.3d 1004 (App.2000) (requiring defendant to prove entrapment defense by clear *114 and convincing evidence does not violate Due Process, Clause); see also Martinez (defendant bears burden of proving elements of crime preve

2002Compare United States v. Mitchell, 725 F.2d 832 (2d Cir.1983) (state bears burden of disproving at least one element of duress defense beyond a reasonable doubt), and People v. Condley, 69 Cal.App.3d 999 , 138 Cal.Rptr. 515 (1977) (duress defense negates element of offense), with United States v. Johnson, 956 F.2d 894, 897 (9th Cir.1992) (“The defense [of duress] assumes that the defendant has voluntarily performed the criminal act; his or her will has not been so overcome that another choice was impossible; the act done was intentional.”), and State v. Riker, 123 Wash.2d 351 , 869 P.2d 43 (19

2002Compare United States v. Mitchell, 725 F.2d 832 (2d Cir.1983) (state bears burden of disproving at least one element of duress defense beyond a reasonable doubt), and People v. Condley, 69 Cal.App.3d 999 , 138 Cal.Rptr. 515 (1977) (duress defense negates element of offense), with United States v. Johnson, 956 F.2d 894, 897 (9th Cir.1992) (“The defense [of duress] assumes that the defendant has voluntarily performed the criminal act; his or her will has not been so overcome that another choice was impossible; the act done was intentional.”), and State v. Riker, 123 Wash.2d 351 , 869 P.2d 43 (19

2002Cf. Sierra-Cervantes, 201 Ariz. 459, ¶ 11 , 37 P.3d 432, ¶ 11 (“Juries should not be advised that the state bears any burden on self-defense.

2002Cf. Sierra-Cervantes, 201 Ariz. 459, ¶ 11 , 37 P.3d 432, ¶ 11 (“Juries should not be advised that the state bears any burden on self-defense.

2002See State v. Hussain, 189 Ariz. 336 , 942 P.2d 1168 (App.1997) (defendants are not entitled to jury instructions based on incorrect statements of law).

2002See State v. Hussain, 189 Ariz. 336 , 942 P.2d 1168 (App.1997) (defendants are not entitled to jury instructions based on incorrect statements of law).

2002Compare United States v. Mitchell, 725 F.2d 832 (2d Cir.1983) (state bears burden of disproving at least one element of duress defense beyond a reasonable doubt), and People v. Condley, 69 Cal.App.3d 999 , 138 Cal.Rptr. 515 (1977) (duress defense negates element of offense), with United States v. Johnson, 956 F.2d 894, 897 (9th Cir.1992) (“The defense [of duress] assumes that the defendant has voluntarily performed the criminal act; his or her will has not been so overcome that another choice was impossible; the act done was intentional.”), and State v. Riker, 123 Wash.2d 351 , 869 P.2d 43 (19

2002Compare United States v. Mitchell, 725 F.2d 832 (2d Cir.1983) (state bears burden of disproving at least one element of duress defense beyond a reasonable doubt), and People v. Condley, 69 Cal.App.3d 999 , 138 Cal.Rptr. 515 (1977) (duress defense negates element of offense), with United States v. Johnson, 956 F.2d 894, 897 (9th Cir.1992) (“The defense [of duress] assumes that the defendant has voluntarily performed the criminal act; his or her will has not been so overcome that another choice was impossible; the act done was intentional.”), and State v. Riker, 123 Wash.2d 351 , 869 P.2d 43 (19

2018See, e.g. , State v. Riker , 123 Wash.2d 351 , 869 P.2d 43 , 51 (1994) (noting that evidence of battered woman syndrome is permitted to support self-defense, but refusing to allow it to support a duress defense because it involves harm to an innocent third party and "[t]he more stringent requirements for the duress defense are a result of the more socially harmful outcome allowed by this defense, and reflect society's conclusion that ... the defense should be limited"). ¶ 43 The duress statute's text, and our case law interpreting it, impose a strict temporal threat requirement on the duress d

2018See, e.g. , State v. Riker , 123 Wash.2d 351 , 869 P.2d 43 , 51 (1994) (noting that evidence of battered woman syndrome is permitted to support self-defense, but refusing to allow it to support a duress defense because it involves harm to an innocent third party and "[t]he more stringent requirements for the duress defense are a result of the more socially harmful outcome allowed by this defense, and reflect society's conclusion that ... the defense should be limited"). ¶ 43 The duress statute's text, and our case law interpreting it, impose a strict temporal threat requirement on the duress d

2025Co., 96 Ariz. 113, 120 (1964) (“The doctrine of ‘business compulsion’ is merely the modern form of the common law doctrine of duress.

2024See State v. Lehr, 227 Ariz. 140, 150, ¶ 39 (2011) (“The Due Process Clause of the Fourteenth Amendment requires that ‘criminal defendants be afforded a meaningful opportunity to present a complete defense.’”) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)).

2024See State v. Lehr, 227 Ariz. 140, 150, ¶ 39 (2011) (“The Due Process Clause of the Fourteenth Amendment requires that ‘criminal defendants be afforded a meaningful opportunity to present a complete defense.’”) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)).

2024See State v. Speers, 209 Ariz. 125, 132, ¶ 27 (App. 2004) (“A trial court commits reversible error when it instructs on an issue or theory that is not supported by evidence because it invites the jury to speculate as to possible non-existent circumstances.”) (cleaned up). ¶16 In any event, even if the facts of this case could be said to support a duress instruction, the superior court’s refusal to instruct the jurors on duress entitles Leonard to no relief because the necessity instruction adequately covered the issue of whether Leonard was justified in taking possession of the gun when confro

2024See State v. Speers, 209 Ariz. 125, 132, ¶ 27 (App. 2004) (“A trial court commits reversible error when it instructs on an issue or theory that is not supported by evidence because it invites the jury to speculate as to possible non-existent circumstances.”) (cleaned up). ¶16 In any event, even if the facts of this case could be said to support a duress instruction, the superior court’s refusal to instruct the jurors on duress entitles Leonard to no relief because the necessity instruction adequately covered the issue of whether Leonard was justified in taking possession of the gun when confro

2024See Kline v. Kline, 14 Ariz. 369, 374 (1912). ¶10 Preliminarily, Wife argues Husband waived the duress defense by failing to affirmatively assert it in his dissolution petition.

2024He never claimed, however, that he felt coerced by the two aggressors “to commit a crime against another person or the property of another person.” Lamar, 144 Ariz. at 497.

2024State v. Almeida, 238 Ariz. 77, 81, ¶ 17 (App. 2015) (“A trial court is not required to give a requested jury instruction if its other instructions adequately cover the issue.”). ¶17 The court gave the jurors the following instruction on the defense of necessity: Now, the defendant was justified in engaging in conduct that constituted the offense of misconduct involving weapons if 1, a reasonable person in the defendant’s situation would be compelled to engage in the conduct; And 2, the defendant had no reasonable alternative to avoid imminent public or private injury greater than the injury t

2024Almeida, 238 Ariz. at 81, ¶ 17 . ¶21 Leonard also argues that the superior court’s refusal to give a duress instruction deprived him of due process.

2024Cf. Bailey, 444 U.S. at 410 (“Under any definition of these defenses [of duress and necessity] one principle remains constant: if there was a reasonable, legal alternative to violating the law . . . the defenses will fail.”). ¶20 Leonard submits that a duress instruction was warranted because “the assailants’ application of force against him, coupled with the inherent danger of the situation, rendered him incapable of resisting the pressure exerted upon him.” But Leonard could make that same argument in support of a necessity defense because being “incapable of resisting the pressure” to take

2022See State v. Dickinson, 233 Ariz. 527, 531, ¶ 13 (App. 2013) (stating that a defendant claiming fundamental error “must affirmatively ‘prove prejudice’ and may not rely upon ‘speculation’ to carry 8 STATE v. BAKER Decision of the Court his burden”); see also State v. Newell, 212 Ariz. 389, 403, ¶ 69 (2006) (“[W]e presume jurors follow the court’s instructions . . . .”). ¶25 Moreover, in applying the prejudice standard, we “examine the entire record, including the parties’ theories and arguments as well as the trial evidence.” Escalante, 245 Ariz. at 144, ¶ 31.

2022See State v. Dickinson, 233 Ariz. 527, 531, ¶ 13 (App. 2013) (stating that a defendant claiming fundamental error “must affirmatively ‘prove prejudice’ and may not rely upon ‘speculation’ to carry 8 STATE v. BAKER Decision of the Court his burden”); see also State v. Newell, 212 Ariz. 389, 403, ¶ 69 (2006) (“[W]e presume jurors follow the court’s instructions . . . .”). ¶25 Moreover, in applying the prejudice standard, we “examine the entire record, including the parties’ theories and arguments as well as the trial evidence.” Escalante, 245 Ariz. at 144, ¶ 31.

2018See, e.g. , State v. Lopez-Navor , 951 A.2d 508 , 511-12 (R.I. 2008) (refusing a duress instruction for a defendant who alleged that her boyfriend "threatened and intimidated her" into neglecting and abusing her child, as failing to report the situation did not "excuse[ ] her conduct"); Campbell v. State , 999 P.2d 649 , 659-60 (Wyo. 2000) (finding that general evidence of years of physical abuse by her boyfriend did not establish a "present, imminent or impending" threat sufficient to permit defendant to raise a duress defense to a child endangerment charge). ¶ 55 Although the majority and So

2018See, e.g. , State v. Lopez-Navor , 951 A.2d 508 , 511-12 (R.I. 2008) (refusing a duress instruction for a defendant who alleged that her boyfriend "threatened and intimidated her" into neglecting and abusing her child, as failing to report the situation did not "excuse[ ] her conduct"); Campbell v. State , 999 P.2d 649 , 659-60 (Wyo. 2000) (finding that general evidence of years of physical abuse by her boyfriend did not establish a "present, imminent or impending" threat sufficient to permit defendant to raise a duress defense to a child endangerment charge). ¶ 55 Although the majority and So