KINGMAN - The last words of a dead man should have reached the ears of jurors who convicted his killer.
But jurors also should have heard how they could consider the crime prevention element of state laws regarding self-defense.
So ruled the Arizona Supreme Court, which reversed Philip John Martin's second-degree murder conviction in December of 2014 because jurors were not given proper instructions.
Martin's retrial began this week.
The high court found it appropriate that jurors heard the dying declaration of Steven Schwartz, a Golden Valley man who told Mohave County Sheriff's deputies that it was Martin, his neighbor, who blasted him with a shotgun on Oct. 18, 2012.
The case was always about the right to kill, said prosecutor James Schoppmann following the October 2013 trial that ended in Martin's second-degree murder conviction. Jurors did not find he premeditated the killing, despite wildly changing his story between the day it happened and when he testified on his own behalf 12 months later.
Justices also ruled Superior Court Judge Derek Carlisle - who was then head of Commissioner Court now led by Judge Billy Sipe - should have instructed those jurors on the so-called "crime-prevention defense."
That Martin shot Schwartz from inside his hardscrabble Golden Valley home as Schwartz walked up the driveway is not in dispute. The question is, was Martin acting within the laws that pertain to self-defense, a claim he made since the day of the incident?
The state's high court reversed the conviction and ordered a retrial. Martin was convicted about a year after he shot and killed Schwartz. The high court threw it out in large part because Carlisle did not, as Martin requested, instruct jurors on the state's crime prevention statute, which allows people to use lethal force to avoid physical assault.
Carlisle did advise jurors on state laws regarding the use of physical force and deadly physical force in self-defense cases. He ruled the evidence was insufficient to warrant an instruction on the element of crime prevention.
Self-defense or murder?
On the afternoon of Oct. 18, 2013, Schwartz left his revolver in his Jeep that was parked in the middle of Elgin Road.
Martin had a habit of blocking access past his property on Elgin, a rugged and remote dirt road next to a wash popular with ATV operators. Schwartz, his neighbor, was one of them.
Schwartz removed railroad ties and debris from the road and told a friend he was going to ask Martin why he kept obstructing the road.
Martin pulled the trigger after Schwartz walked 61 feet up his driveway. He was about 40 feet from Martin's home when Martin pulled the trigger and Schwartz never saw it coming. Martin fired from inside the living room of his off-the-grid singlewide mobile home.
The double-aught buckshot hit Schwartz in the torso.
Martin told deputies he was convinced Schwartz meant to do him harm. He said he believed his neighbor was armed and was walking up to him with a deliberate attitude. He said he was afraid.
But he also said he fired a warning shot and Schwartz kept coming. That proved to be a lie.
He also believed the fact he posted a No Trespassing sign on his property afforded him more latitude in defending his property. Martin also told deputies he and Schwartz were "in a feud" and that he knew his neighbor carried a gun. Other witnesses disputed that claim at the first trial.
Schwartz left the gun in his Jeep. He even left a Leatherman he kept in a sheath on his belt. But he did not remove the sheath.
Presiding Supreme Court Judge Patricia Norris pointed out that Martin also testified he saw a bulge under Schwartz's shirt. It turned out to be the empty sheath, but Martin said the bulge is what put him in fear for his life. He also testified he gave Schwartz a number of verbal warnings that his neighbor ignored.
Before he died, Schwartz told deputies that Martin never warned him until after he shot him.
Carlisle ruled it was unreasonable for Martin to believe he was in imminent danger of assault.
Dead men do tell tales
Deputies who responded to Martin's property attempted to help Schwartz. The last moments of his life were recorded.
A voice could be heard saying "Stay with me, buddy."
"Phil," said Schwartz when a deputy asks if he knew who shot him. He identified him as a neighbor.
"Walking up the driveway," he can be heard saying when asked why he was shot.
"Said, don't walk up my driveway anymore, after I was on the ground already," said Schwartz when asked if Martin said anything before shooting him.
The high court determined a jury should decide whether the shooting was reasonable and therefore justified, and Sipe will likely provide the crime prevention instruction when testimony ends.
They ruled Schwartz's dying declarations did not violate the Confrontation Clause because it his words were not testimonial.
The retrial continues today.