premeditation instruction in Arizona

2011The time needed for reflection is not necessarily prolonged, and the space of time between the intent or knowledge to kill and the act of killing may be very short. *152 ¶ 53 During the settling of jury instructions, Lehr objected to the premeditation instruction, arguing that the last sentence was impermissible under State v. Thompson, 204 Ariz. 471 , 65 P.3d 420 (2003).

2011The time needed for reflection is not necessarily prolonged, and the space of time between the intent or knowledge to kill and the act of killing may be very short. *152 ¶ 53 During the settling of jury instructions, Lehr objected to the premeditation instruction, arguing that the last sentence was impermissible under State v. Thompson, 204 Ariz. 471 , 65 P.3d 420 (2003).

2023We consider “the context in which the statements were made as well as the entire record and to the totality of the circumstances.” State v. Nelson, 229 Ariz. 180, 189, ¶ 39 (2012) (internal quotation marks and citation omitted). ¶32 Relying on our findings in State v. Malone, 245 Ariz. 103 (App. 2018), vacated on other grounds, 247 Ariz. 29 (2019), Gooch argues the prosecutor impermissibly diluted the premeditation standard in closing argument.

2023We review a single, unobjected-to misstatement of law to determine “(1) whether it constitutes prosecutorial error; (2) if so, whether the error was fundamental; and (3) if fundamental, whether the error was prejudicial.” State v. Murray, 250 Ariz. 543, 549, ¶ 17 (2021). ¶31 Although we afford wide latitude in closing argument, State v. Goudeau, 239 Ariz. 421, 466, ¶ 196 (2016), a prosecutor’s “prerogative to argue their version of the evidence does not sanction a misstatement of law,” Murray, 250 Ariz. at 549, ¶ 18 .

2023We review a single, unobjected-to misstatement of law to determine “(1) whether it constitutes prosecutorial error; (2) if so, whether the error was fundamental; and (3) if fundamental, whether the error was prejudicial.” State v. Murray, 250 Ariz. 543, 549, ¶ 17 (2021). ¶31 Although we afford wide latitude in closing argument, State v. Goudeau, 239 Ariz. 421, 466, ¶ 196 (2016), a prosecutor’s “prerogative to argue their version of the evidence does not sanction a misstatement of law,” Murray, 250 Ariz. at 549, ¶ 18 .

2023We review a single, unobjected-to misstatement of law to determine “(1) whether it constitutes prosecutorial error; (2) if so, whether the error was fundamental; and (3) if fundamental, whether the error was prejudicial.” State v. Murray, 250 Ariz. 543, 549, ¶ 17 (2021). ¶31 Although we afford wide latitude in closing argument, State v. Goudeau, 239 Ariz. 421, 466, ¶ 196 (2016), a prosecutor’s “prerogative to argue their version of the evidence does not sanction a misstatement of law,” Murray, 250 Ariz. at 549, ¶ 18 .

2012See Dann, 220 Ariz. at 364 ¶ 51, 207 P.3d at 617 ; Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d at 607 . ¶ 22 The trial court gave the following jury instruction: ‘Premeditation’ means that the defendant intended to kill another human being or knew he would kill another human being and that after forming that intent or knowledge reflected on the decision before killing.

2012See Dann, 220 Ariz. at 364 ¶ 51, 207 P.3d at 617 ; Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d at 607 . ¶ 22 The trial court gave the following jury instruction: ‘Premeditation’ means that the defendant intended to kill another human being or knew he would kill another human being and that after forming that intent or knowledge reflected on the decision before killing.

2002And, the. court in Thompson concluded, including the “instantaneous as successive thoughts” language in a premeditation instruction without any actual reflection requirement would “deprive juries of an ascertainable standard” and create “a stan-dardless vacuum in which determinations of degrees of guilt can only be decided arbitrarily.” Id. at ¶¶ 30, 32; see also State v. Cecil, 201 Ariz. 454 , 36 P.3d 1224 (App.2001). ¶ 11 For two reasons, we disagree with Thompson .

2002And, the. court in Thompson concluded, including the “instantaneous as successive thoughts” language in a premeditation instruction without any actual reflection requirement would “deprive juries of an ascertainable standard” and create “a stan-dardless vacuum in which determinations of degrees of guilt can only be decided arbitrarily.” Id. at ¶¶ 30, 32; see also State v. Cecil, 201 Ariz. 454 , 36 P.3d 1224 (App.2001). ¶ 11 For two reasons, we disagree with Thompson .

1999Appellant concedes that he did not object to the premeditation instruction as given at trial and as described by the state in its closing argument, but contends that giving it constituted fundamental error. *415 ¶ 17 We have previously held that rarely will an improperly given instruction “‘justify reversal of a criminal conviction when no objection has been made in the trial court.’ ” State v. Zaragoza, 135 Ariz. 63, 66 , 659 P.2d 22, 25 (1983) (quoting Henderson v. Kibbe, 431 U.S. 145, 154 , 97 S.Ct. 1730, 1736 , 52 L.Ed.2d 203, 212 (1977)).

1999Appellant concedes that he did not object to the premeditation instruction as given at trial and as described by the state in its closing argument, but contends that giving it constituted fundamental error. *415 ¶ 17 We have previously held that rarely will an improperly given instruction “‘justify reversal of a criminal conviction when no objection has been made in the trial court.’ ” State v. Zaragoza, 135 Ariz. 63, 66 , 659 P.2d 22, 25 (1983) (quoting Henderson v. Kibbe, 431 U.S. 145, 154 , 97 S.Ct. 1730, 1736 , 52 L.Ed.2d 203, 212 (1977)).

1999Appellant concedes that he did not object to the premeditation instruction as given at trial and as described by the state in its closing argument, but contends that giving it constituted fundamental error. *415 ¶ 17 We have previously held that rarely will an improperly given instruction “‘justify reversal of a criminal conviction when no objection has been made in the trial court.’ ” State v. Zaragoza, 135 Ariz. 63, 66 , 659 P.2d 22, 25 (1983) (quoting Henderson v. Kibbe, 431 U.S. 145, 154 , 97 S.Ct. 1730, 1736 , 52 L.Ed.2d 203, 212 (1977)).

1999Appellant concedes that he did not object to the premeditation instruction as given at trial and as described by the state in its closing argument, but contends that giving it constituted fundamental error. *415 ¶ 17 We have previously held that rarely will an improperly given instruction “‘justify reversal of a criminal conviction when no objection has been made in the trial court.’ ” State v. Zaragoza, 135 Ariz. 63, 66 , 659 P.2d 22, 25 (1983) (quoting Henderson v. Kibbe, 431 U.S. 145, 154 , 97 S.Ct. 1730, 1736 , 52 L.Ed.2d 203, 212 (1977)).

1998In State v. Willoughby, 181 Ariz. 530, 540 , 892 P.2d 1319, 1329 (1995), the court stated that, “Premeditation being ‘part of the corpus delicti’ of premeditated first-degree murder, [State v.] Poland, 132 Ariz. [269] at 276, 645 P.2d [784] at 791 [ (1982) ], and the verdict having established that actual premeditation occurred, there was no question but that it occurred in Arizona.” Because of the premeditation instruction and argument in Appellant’s case, however, the verdict merely establishes that an instant of time existed between Appellant’s knowledge and his action.

1998In State v. Willoughby, 181 Ariz. 530, 540 , 892 P.2d 1319, 1329 (1995), the court stated that, “Premeditation being ‘part of the corpus delicti’ of premeditated first-degree murder, [State v.] Poland, 132 Ariz. [269] at 276, 645 P.2d [784] at 791 [ (1982) ], and the verdict having established that actual premeditation occurred, there was no question but that it occurred in Arizona.” Because of the premeditation instruction and argument in Appellant’s case, however, the verdict merely establishes that an instant of time existed between Appellant’s knowledge and his action.

1985State v. McIntyre, 106 Ariz. 439, 445 , 477 P.2d 529, 535 (1970).

1985State v. McIntyre, 106 Ariz. 439, 445 , 477 P.2d 529, 535 (1970).

1979See State v. Richmond, 112 Ariz. 228 , 540 P.2d 700 (1975); State v. Serna, 69 Ariz. 181 , 211 P.2d 455 (1949), cert. denied, 339 U.S. 973 , 70 S.Ct. 1031 , 94 L.Ed. 1380 (1950).

1979See State v. Richmond, 112 Ariz. 228 , 540 P.2d 700 (1975); State v. Serna, 69 Ariz. 181 , 211 P.2d 455 (1949), cert. denied, 339 U.S. 973 , 70 S.Ct. 1031 , 94 L.Ed. 1380 (1950).