Takeaway
In short, this case limits a private citizen's use of deadly force to apprehend a fleeing felon: an actual felony must have occurred, and the felony must reasonably threaten great bodily injury; suspicion of a minor property crime is not enough.
Barr lived behind an antique store and had been asked by the store owner to watch the adjoining yard, where old furniture was kept. After being awakened at night by voices and activity around his home, Barr saw young men in the yard carrying chairs. He confronted them, fired warning shots, and then fired in their direction as they walked away. Timothy Tylutki was struck in the head and leg and died.
The evidence conflicted over whether the men ignored Barr's commands, whether a rock was thrown toward him, and whether Barr reasonably feared danger. The chairs were worth less than five dollars, and the yard was only partially bounded, with open pathways and minimal barriers.
Barr was charged with manslaughter and convicted of voluntary manslaughter while armed with a gun. On appeal, he argued that the trial court wrongly prevented him from relying on the justification for a private person who kills while apprehending a fleeing felon, improperly limited related cross-examination and opening-statement argument, inadequately instructed on self-defense, and allowed conviction of an armed form of manslaughter without sufficient notice.
Issue #1
Whether Barr was entitled to instructions that the killing was justified because he was attempting to apprehend a fleeing felon.
Holding
No. Barr could not invoke the fleeing-felon justification because no felony was in fact committed, and in any event deadly force was not justified merely to arrest a person for a non-dangerous felony.
Reasoning
Arizona's justifiable-homicide provision applied only when a person attempted an arrest by “lawful ways and means.” A private citizen, unlike a police officer acting on probable cause, could make an arrest only if a felony had actually been committed. Thus, a reasonable but mistaken belief that a felony occurred could not itself make Barr's attempted arrest lawful.
The language in Viliborghi concerning a defendant's reasonable apprehension did not alter that rule. It concerned whether deadly force was, or reasonably appeared, necessary to apprehend a felon after a felony had in fact occurred; it did not eliminate the requirement of an actual felony.
The supposed burglary did not satisfy Arizona's burglary statute. The antique-store yard was neither fenced nor enclosed in the statutory sense: its wall tapered off, pathways remained open, and some areas were blocked only with plywood intended to contain puppies. A commercial yard is protected by the burglary statute only when an enclosing structure is principally designed to protect property from intrusion, not when it merely marks a boundary or serves another purpose.
The court also held that the common-law rule allowing deadly force against any fleeing felon had been substantially limited. Following State v. Copley and State v. McIntyre, deadly force under the justifiable-homicide statutes requires a felony that reasonably creates fear of great bodily injury. Modern statutes classify many nonviolent acts as felonies, so felony status alone cannot give a private citizen unrestricted authority to kill in making an arrest.
Issue #2
Whether the trial court improperly barred cross-examination about burglary arrests and prevented counsel from arguing the fleeing-felon theory in the opening statement.
Holding
No. Because the fleeing-felon justification was unavailable as a matter of law, the proposed questioning and opening-statement argument were irrelevant to a valid defense.
Reasoning
Barr sought to ask Tylutki's companions specifically about arrests for burglary and to tell the jury that a private person may use deadly force to apprehend a fleeing felon. But the court had correctly determined that the facts could not support that justification. Evidence and argument offered solely to establish an unavailable defense were therefore properly excluded.
Issue #3
Whether the trial court erred by refusing Barr's requested supplemental self-defense instructions concerning retreat, being armed, and the statutory formulation of self-defense.
Holding
No. The instruction given correctly and adequately stated the governing law of self-defense.
Reasoning
The trial court instructed that self-defense required Barr to have reasonably believed he faced immediate danger of death or great bodily injury, to have acted solely because of that belief, and to have used no more force than reasonably appeared necessary. That instruction fairly presented the controlling standard to the jury.
A trial court must instruct on legal principles vital to the evidence, but it need not give additional instructions that merely emphasize particular elements of a defense already covered by a correct general charge. The court therefore was not required to single out the absence of a duty to retreat, Barr's possession of a weapon, or a substantially duplicative statutory formulation.
Issue #4
Whether the open manslaughter charge failed to give Barr adequate notice that he could be convicted of voluntary manslaughter while armed with a gun or deadly weapon.
Holding
No basis existed to vacate the judgment or sentence because Barr's sentence fell within the statutory range for the lesser manslaughter offense.
Reasoning
Assuming that the State should have charged the armed manslaughter provision more specifically, State v. Castaneda would limit the punishment when a charge leaves uncertainty between a greater and lesser offense. It would not necessarily require reversal of the conviction.
Barr's sentence was within the permissible limits for the lesser offense. Consequently, any uncertainty in the charging language did not require the appellate court to disturb the judgment or sentence.