A Pima County man who used a six-inch drill bit to stab another man multiple times in the neck was properly convicted at trial, even though the Arizona Court of Appeals agreed this week that the trial judge made a fundamental error when instructing the jury.
Sergio Fierro Jr. was found guilty last year of attempted second-degree murder and four counts of aggravated assault for an April 28, 2018 incident which left a man hospitalized for nearly one week with severe neck wounds. He must serve at least 85 percent of his 28-year sentence before being eligible for release.
Court records show the man Fierro attacked was a friend of Fierro’s brother. Another man heard the attack and went to help, but Fierro then attacked him in the face with the drill bit.
One of the responding deputies initiated medical aid for the first man’s “profusely bleeding neck” and then deployed a Taser when Fierro would not comply with orders to drop the weapon.
Fierro, 37, later testified at trial that he acted in self-defense, a claim the jurors rejected. He argued on appeal that Judge Deborah Bernini of the Pima County Superior Court committed a fundamental error during the four-day trial by instructing the jury that an attempt to commit second-degree murder is possible even if the defendant did not intend to cause a death.
The instruction stated in part that attempted murder can be committed if the defendant “recklessly engaged in conduct which created a grave risk of death.” That risk must be such that disregarding it “was a gross deviation from what a reasonable person in the defendant’s situation would have done.”
Fierro’s trial attorney did not object to the instruction, even though the Arizona Court of Appeals agreed on Sept. 30 that it was erroneous because it allowed for a conviction based on recklessness.
“In Arizona, attempted second-degree murder can be committed only if the defendant intended to kill the victim or knew that his conduct would cause the victim’s death,” the decision states. “The offense of attempted second-degree murder based on reckless conduct does not exist.”
The appellate decision further notes there is no offense of attempted second-degree murder based merely on knowing one’s conduct will cause serious physical injury. The Arizona Attorney General’s Office also conceded the jury instructions based on “non-existent theories of criminal liability” constituted fundamental error.
At that point of the decision Fierro likely expected he would be getting a new trial. However, the Arizona Court of Appeals affirmed his convictions and sentences, finding that Fierro failed to show he was prejudiced by the judge’s error.
“It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court,” the decision reads. “Under these circumstances, a reasonable, properly instructed jury could not have reached a different verdict.”
Fierro has until Oct. 30 to petition for review to the Arizona Supreme Court. His release date is listed by the Arizona Department of Corrections as June 2041.
Since 2001, Fierro has been sentenced to prison for 17 felony counts, the first being an attempted auto theft. His criminal record includes convictions for theft, criminal damage, burglary, attempted robbery, and flight from police, as well as aggravated assault convictions for offenses in 2005 and 2012.