Rare Split At AZ Supreme Court Upholds Verdict In Drill Bit Attack Despite Judge’s Error

Sergio Fierro Jr, [Photo courtesy of Arizona Dept. of Corrections]

A man convicted of attempted second degree murder for stabbing a six-inch long drill bit into the neck of an acquaintance in 2018 was not prejudiced at trial even though the judge committed a fundamental error, the Arizona Supreme Court ruled Tuesday.

Pima County jurors deciding the fate of Sergio Fierro Jr. were told by the trial judge they could find Fierro guilty if they found he acted with an intent to kill, or knew that serious injury could result from his action. Jurors were also told they could convict Fierro if they believed he acted recklessly even if causing the victim’s death was not intended.

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But mere recklessness was not a correct criteria, according to a 29-page opinion authored by Justice Clink Bolick.

“This same faulty instruction has been used repeatedly in prior cases,” Bolick wrote for the majority in a rare 4 to 3 vote.

Yet despite the faulty jury instruction, the majority ruled Fierro had not shown he was prejudiced. As a result, his convictions and 28-year prison sentence for the unprovoked stabbing of J.H. and an assault on a man who came to the rescue were affirmed.

Fierro is slated to be released from the Arizona Department of Corrections in June 2041.

The 4 to 3 vote split is not the only thing which garnered attention with the supreme court’s decision in Fierro’s case. Bolick also went into great detail about the drill bit used in the attacks and even attached a photograph of the weapon to the opinion.

“The drill bit Fierro used to attack J.H. was a spade bit,” according to the opinion. “It has a small, sharp, arrow-shaped tip, behind which are two larger flat cutting edges, so that if thrust beyond the tip it would gouge the victim. Behind the blade is a round shaft about four inches long that makes it possible to wield and thrust it as a weapon.”

The majority opinion against prejudice leaned heavily on the fact the State’s theory throughout Fierro’s trial was that he intended to kill J.H.

“The State was unequivocal throughout the trial that it had to demonstrate Fierro’s intent to kill—and it was equally emphatic that the evidence could yield no other conclusion,” Bolick wrote. “The evidence did not support a conclusion that Fierro instead intended to inflict serious physical injury on J.H., and defense counsel did not argue otherwise to the jury.”

Fierro originally took his challenge about the jury instruction to the Arizona Court of Appeals, which agreed in September 2020 the trial judge had erred. The appellate panel concluded, however, the erroneous instruction did not prejudice Fierro in light of the evidence presented to the jury.

Fierro’s appellate attorney then filed a petition for review to the Arizona Supreme Court, which agreed in August 2021 to hear the case. The opinion was released Sept. 27, 2022.

Although the two higher courts came to the same conclusion that Fierro was not prejudiced, the reasoning behind those conclusions was somewhat different. As a result, Supreme Court’s opinion takes precedence.

And that opinion includes a new jury instruction to be used in Arizona for cases where a defendant is charged with attempted second degree murder. Fierro’s appellate attorney was involved in proposing language for the new instruction.

“To put an end to such erroneous instructions, we provide a standalone instruction for attempted second degree murder,” Bolick wrote. “The language we approve today correctly reflects the statutory definition of attempted second degree murder, and trial courts should use this instruction in future cases.”

Joining Bolick in the majority opinion were Chief Justice Robert Brutinel, Vice Chief Justice Ann Timmer, and Justice James Beene.

A dissent written by Justice John R. Lopez IV and joined by Justices Bill Montgomery and Kathryn King noted the three embrace the newly crafted jury instruction. However, they would have vacated Fierro’s conviction on the attempted second degree murder charge and order a new trial.

“The majority’s analysis and conclusion that, on this record, Fierro fails to establish prejudice because a reasonable jury could not have reached a different verdict absent the instructional error establishes an unwarranted and perilous tolerance for instructional error that relieves the State of its burden. We respectfully dissent,” Lopez wrote.


Convictions For Drill Bit Attacks Upheld On Appeal Despite Judge’s Error