The man convicted earlier this month for the 2017 fatal shooting of Jose Daniel “JD” Arvizu should be granted a new trial because the judge erred when he instructed the jury on a matter of law, according to a motion filed by the defense last Friday.
Roger Delane Wilson was found guilty Oct. 1 of first-degree murder with premeditation by a jury which deliberated less than three hours. He has insisted since the June 22, 2017 shooting that he fired one shot from a 20-gauge shotgun in self-defense around 1 a.m. when Arvizu appeared in the dark street as Wilson was attempted to park his truck in his mother’s driveway.
Wilson, 52, was indicted for murder despite his claims of self-defense. Witnesses confirmed his statement to investigators of a recent physical assault by Arvizu, 23, which left Wilson with an injured nose. And the two were involved in a verbal altercation at the home of a mutual acquaintance about 30 minutes before the shooting.
The question of self-defense was left to a jury empaneled in the Cochise County Superior Court on Sept. 15, more than three years after the shooting. Given the jury’s quick deliberations and unanimous verdict to premediated murder they apparently rejected the self-defense claim.
But on Oct. 9, defense attorney Chris Kimminau filed a motion for a new trial based on the argument that Judge Timothy Dickerson committed an error during the trial when he read only one of four jury instructions Wilson sought on the subject of use of force and self-defense.
Jurors received an instruction on the Use of Deadly Force but did not hear Wilson’s requested instructions on Use of Physical Force, Use of Force in Defense of a Residential Structure, and Use of Force in Crime Prevention. One of the denied instructions whether Wilson was justified in using force against Arvizu to prevent a murder, manslaughter, or aggravated assault.
“The justification instruction given by this court did not adequately reflect the law as required,” the motion argues. “Failure to adequately instruct a jury on applicable law is fundamental error requiring an appellate court to order a new trial. Accordingly, Mr. Wilson requests the court grant this motion for a new trial.”
Kimminau’s motion for a new trial argues cites a 2018 Arizona Supreme Court decision which notes a justification defense applies to conduct that would be considered criminal unless determined “by a reasonable person” to be justified.
Just minutes before the shooting, Wilson and Arvizu were ordered to leave the home of a mutual friend because of a confrontation. Witnesses said Wilson left first, ending up a short time later at his mother’s house down the street.
Wilson told sheriff’s investigators he was trying to get the gate unlocked in order to park his truck in his mother’s yard when Arvizu showed up in the roadway. Arvizu had been walking to a friend’s house, according to other testimony.
After the shooting Wilson said he fired at Arvizu after the young man charged at him toward the mother’s property. Ballistics experts for the prosecution and defense agreed the distance between the two men was about nine feet when the shotgun was fired, give or take a foot or two.
However, a prosecution witness contended physical evidence showed Arvizu was possibly kneeling at the time the shot was fired. The defense argument was that Arvizu was simply somewhat crouched down as he ran at Wilson.
“There are multiple justification defenses because experience has shown that ‘one size’ simply ‘did not fit all’ the nuances of the other requested instructions the court refused to give,” Kimminau argued.
Dickerson is the one who decides at this juncture whether Wilson gets a new trial or if the case moves forward to sentencing Nov. 9. No hearing has been set on the new trial motion as of press time.
In the meantime, the Cochise County Attorney’s Office has requested Dickerson to dismiss three felony firearms charges against Wilson that were to be the subject of a separate trial later this year.
The type of dismissal request is without prejudice, meaning the charges could be refiled within the statute of limitations.
“In light of the jury verdict and mandatory sentencing for (premediated murder), the State moves to dismiss the remaining counts in the interest of justice and prosecutorial discretion,” prosecutor Zucco stated.
Dickerson will also rule on the requested dismissal.