Self-defense law to get high court test
By Howard Fischer
CAPITOL MEDIA SERVICES
A Tucson man who admitted he killed another person in his home may get another chance to avoid even being indicted.
The state Court of Appeals ruled Tuesday David Rene Garcia is entitled to use a new self-defense law to argue he cannot be charged with murder.
The new law puts the burden on prosecutors to prove that Garcia was not justified in shooting Alexis Samaniego in a December 2004 incident at Garcia's house. Garcia contends he was forced to use his gun when he was attacked.
By contrast, the law that existed in 2004 required Garcia to prove that he had no choice but to use deadly physical force.
Rick Unklesbay, Pima County's chief criminal deputy county attorney, said the ruling will be appealed to the state Su-preme Court.
Unless it is overturned, trial Judge Christopher Browning said he will throw out the indictment, requiring prosecutors to seek new charges — this time with the burden on them to prove Garcia's action was not justified.
This case and another on the high court's docket could finally give the justices a chance to decide who gets to take advantage of the change in law.
Technically, the statute took effect April 24 when Gov. Janet Napolitano signed it.
But lower courts have issued conflicting rulings whether it applies to those who were awaiting trial on that date.
The new law actually is a re-enactment of the way the statutes used to be. Prosecutors had the burden of proving to a judge or jury the defendant was guilty beyond a reasonable doubt.
That changed in 1997 when the Legislature said that once a defendant claims self-defense, the defendant must prove his or her action was justified.
Defense attorney Melvin McDonald, who was representing a man awaiting trial in Flagstaff, convinced legislators that was a mistake.
None of that helped Harold Fish, McDonald's client.
A trial judge ruled he had to be tried under the old law, a decision both a different division of the Court of Appeals and a Supreme Court justice refused to disturb. Fish eventually was convicted.
But in Tuesday's ruling, this three-judge appellate panel said what happened in the Fish case proves to them lawmakers did want the new law to apply to pending cases.
In fact, Judge Philip Espinosa, writing for the court, noted that some legislators who voted for the change in law said they were specifically influenced by the Fish case.
And Espinosa pointed out that lawmakers approved the measure with a special "emergency clause," allowing it to take effect immediately on the governor's signature.
By contrast, most other laws are not effective until 90 days after the end of the legislative session.
Unklesbay said the appellate decision is flawed because it treats defendants unequally.
He said two people who committed the same act on the same day could wind up being tried under different laws, depending on whether the trial was conducted before or after April 24.
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