Facts
- John Nunez went to Leo and Theresa Torres’s home and accused Leo of involvement with Nunez’s girlfriend.
- Theresa called her brother Richard to come to the residence to persuade Nunez to leave.
- When Richard arrived, Nunez was outside with a gun and shot Richard in the yard.
- Nunez kicked in the front door, entered the home, and shot Leo and Theresa inside.
- All three victims survived.
- Nunez was charged with three counts of attempted first-degree murder and one count of first-degree burglary.
- Evidence showed Nunez had been drinking; intoxication was raised as relevant to his ability to form the required mental state.
- The jury was instructed that attempted first-degree murder could be committed “intentionally or knowingly,” and Nunez was convicted on all counts.
Issues
- Whether Arizona law permits conviction for attempted first-degree murder based on a “knowing” mental state, or whether attempt liability requires “intent” to kill.
- Whether the trial court erred by instructing that voluntary intoxication could be considered as to “intentional” attempted first-degree murder but could not be considered as to “knowing” attempted first-degree murder.
Decision
- The Arizona Court of Appeals affirmed the convictions for three counts of attempted first-degree murder and one count of first-degree burglary.
- The court held Arizona law recognizes “knowing” attempted first-degree murder under the attempt statute’s structure.
- The court held the voluntary intoxication instruction, viewed with the full set of instructions, was not reversible error.
Legal Principles
- Under A.R.S. § 13-1001, attempt requires the defendant to intentionally engage in the conduct constituting the substantial step while also acting with the culpable mental state required for the completed offense.
- Because first-degree murder may be committed “intentionally or knowingly,” attempt liability may rest on an underlying “knowing” mental state so long as the substantial-step conduct is intentional.
- A jury may be instructed that voluntary intoxication is relevant to whether a defendant acted “intentionally,” but not relevant to whether the defendant acted “knowingly,” consistent with Arizona’s statutory treatment of intoxication and mens rea.
- Jury instructions are reviewed as a whole; an instruction distinguishing between “intentional” and “knowing” mens rea is not error if it correctly states the law and does not mislead the jury.
Conclusion
The court affirmed Nunez’s convictions, holding that Arizona’s attempt statute permits attempted first-degree murder predicated on a knowing mental state and that the jury was properly instructed to consider voluntary intoxication only as to intentional, not knowing, attempted first-degree murder.