State v. Korzep

791 P.2d 1058, 164 Ariz. 175, 50 Ariz. Adv. Rep. 42, 1989 Ariz. App. LEXIS 375
CourtCourt of Appeals of Arizona
DecidedDecember 26, 1989
DocketNo. 1 CA-CR 88-914
StatusPublished
Cited by3 cases

This text of 791 P.2d 1058 (State v. Korzep) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Korzep, 791 P.2d 1058, 164 Ariz. 175, 50 Ariz. Adv. Rep. 42, 1989 Ariz. App. LEXIS 375 (Ark. Ct. App. 1989).

Opinion

OPINION

CONTRERAS, Presiding Judge.

Following a jury trial, appellant was found guilty of manslaughter and was sentenced to a mitigated term of five years imprisonment. The primary issue on appeal is whether the trial court erred in refusing to instruct the jury on “justification” pursuant to A.R.S. § 13-411.1 This statute sets forth the circumstances in which there is justification for the use of deadly physical force by a household resi[177]*177dent against “another” to prevent the commission of enumerated criminal offenses. See State v. Thomason, 162 Ariz. 363, 783 P.2d 809 (Ct.App.1989). In addition, there is a statutorily created specific presumption that one who is entitled to a § 13-411 defense is presumed to he acting reasonably under the statute. A.R.S. § 13-411(C). We find no error because we conclude that § 13-411 is inapplicable to a situation where one resident of a home uses deadly force to prevent the commission of a criminal offense perpetrated by another resident of the same household. Appellant also argues that the trial court erred in refusing to give other requested jury instructions. We disagree. Accordingly, the conviction and sentence are affirmed.

FACTS

It appears that, with minor inconsequential variances, the facts are undisputed. Appellant, Roberta Korzep, and her husband, David, lived together in a home in Yuma, Arizona. In the evening on February 13, 1987, appellant and her husband went to a dog racing track. They had several drinks there and went for more drinks at a local lounge. When the lounge closed, appellant and her husband went home. In their bedroom, David suddenly became angry. He grabbed appellant by the hair and threw her on the bed. After extricating herself, appellant left the bedroom and went to the kitchen. David followed her to the kitchen and began hitting her about the head. Appellant grabbed a kitchen knife from a countertop knife holder and stabbed her husband once in the stomach. Appellant pulled the knife out of David. David grabbed his side, turned and walked away toward the bedroom. Appellant followed and saw a bloodstain on David’s T-shirt. David made a threatening remark, and appellant ran to her neighbor’s house clad only in her underwear: Her neighbor, Mary Gooding, refused to believe appellant had actually stabbed David because appellant still had the knife with her and there was no blood on it. Convinced that David was alive but very angry, appellant did not call the police. Instead, appellant called for help from another neighbor. When this neighbor and his wife arrived at Gooding’s home, the four went back to appellant’s home to investigate the situation. They found David lying face down in the hallway. Emergency medical assistance failed to resuscitate David. A later autopsy showed that the single stab wound had severed major veins and arteries and that he bled to death very quickly.

At trial, appellant defended on the basis of justification. Appellant testified to earlier episodes where her husband strangled her and hit her. Defense witnesses corroborated appellant’s accounts of earlier stran-gulations and beatings. Appellant further testified that she was afraid David was going to beat her up or kill her and that she was certain she would sustain serious injury. On cross-examination, she reiterated that she thought David would strangle her and kill her.

JUSTIFICATION INSTRUCTIONS

At trial, appellant admitted stabbing her husband but defended on the basis that it was justified. When the court and counsel settled jury instructions, defense counsel requested a jury instruction under A.R.S. § 13-411. The state responded that § 13-411 did not apply to the appellant’s situation, that there was no evidence to support giving the instruction and that the self-defense instruction based upon A.R.S. §§ 13-404 and 13-405 was sufficient. The trial judge declined to give an instruction based upon § 13-411 but did give a self-defense instruction predicated upon §§ 13-404 and 13-405.

After trial, appellant filed a motion for new trial alleging in part that the trial court had erred in refusing to give an instruction based upon § 13-411. The state argued against the propriety of such an instruction. The trial judge denied the motion for new trial. Although the trial judge specifically found that the evidence at trial would have supported giving a § 13-411 instruction since there was sufficient evidence of aggravated assault, he accepted the state’s position that an in[178]*178struction under §§ 13-404 and 13-405 was more appropriate.

On appeal, appellant claims that the trial judge erred in refusing her justification instruction based upon § 13-411. Appellant asserts that, at the very least, she was protecting herself from an aggravated assault when she stabbed her husband. The state argues that the trial court properly concluded that §§ 13-404 and 13-405 governed the present fact situation and correctly instructed the jury.

In State v. Thomason, 162 Ariz. 363, 783 P.2d 809 (Ct.App.1989), this court harmonized § 13-411 with the other sections in chapter 4 of the criminal code by stating:

We rely upon the strong policy statement enacted by the legislature for our construction of § 13-411. Accordingly, we restrict the application of § 13-411 to cases which would come within that policy statement. That is, the defense is available only when a home, its contents, or the residents therein are being protected by the use or threatened use of physical force or deadly physical force against another. Such a restriction ameliorates the overlap and conflict of § 13-411 with the other justification statutes and furthers the legislative objective.
With this holding we end our inquiry and leave further construction of the statute for another day.

162 Ariz. at 367, 783 P.2d at 812. The declaration of policy relied upon in interpreting A.R.S. § 13-411 is as follows:

The legislature finds that homes of Arizona residents are being burglarized and violated at an alarming and unacceptable rate that is endangering the residents’ safety, health and property, thereby depriving them of their safe and peaceful enjoyment of their homes.
It is the legislative intent to establish a policy by this law giving notice to all citizens, law enforcement personnel and the state courts that a person’s home, its contents and the residents therein shall be totally respected and protected in Arizona, and that the law enforcement officials and courts shall apply this and all other applicable criminal laws relating to the protection of the home and its residents promptly and severely so as to restore the total sanctity of the home in Arizona.

Laws 1983, Ch. 255, § 1 (emphasis added).

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Related

Gary Dwayne Skaggs v. Hon. Fink
540 P.3d 928 (Court of Appeals of Arizona, 2023)
Korzep v. Superior Court
838 P.2d 1295 (Court of Appeals of Arizona, 1991)
State v. Korzep
799 P.2d 831 (Arizona Supreme Court, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
791 P.2d 1058, 164 Ariz. 175, 50 Ariz. Adv. Rep. 42, 1989 Ariz. App. LEXIS 375, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-korzep-arizctapp-1989.