NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

DAVID GERALD WALKER, Appellant.

No. 1 CA-CR 15-0263

Appeal from the Superior Court in Maricopa County

No. CR2012-153596-001

The Honorable Michael W. Kemp, Judge

REVERSED AND REMANDED IN PART; AFFIRMED IN PART

COUNSEL

Arizona Attorney General’s Office, Phoenix

By David A. Simpson

Counsel for Appellee

Maricopa County Office of the Legal Advocate, Phoenix

By Frances J. Gray

Counsel for Appellant
STATE v. WALKER

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MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which 

Presiding Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined.

N O R R I S, Judge:

¶1 David Gerald Walker appeals his convictions for seconddegree murder, kidnapping, tampering with physical evidence, disorderly 

conduct and possession or use of marijuana. As relevant to our decision, 

Walker argues the jury instructions and verdict form that addressed 

provocation manslaughter were contradictory and misstated the law. We 

agree. Accordingly, we reverse Walker’s conviction for second-degree

murder, but affirm his other convictions and sentences.

FACTS AND PROCEDURAL HISTORY

¶2 Walker and his ex-wife divorced in 2010. At trial, Walker 

testified that despite the divorce, he believed he and his ex-wife were still a 

couple. One night just after midnight, Walker entered the home of his exwife and two children unannounced. He found his ex-wife and the victim 

asleep in bed. Walker struck the victim in the head at least twice with a 

baseball bat he either found by the bed or took from the garage as he entered 

the house. 

¶3 Walker dragged his ex-wife out of the bedroom, verbally 

abused her, and struck her. Walker forced her to wake their two children

and ordered the three of them into his car. He placed the baseball bat he 

had used to attack the victim in the trunk of the car. Walker then forced his 

ex-wife to drive around while he spoke to various people on his cell phone. 

He told his ex-wife that if she reported what he had done to police, he 

would have someone “take care of [her]” so that their children would grow 

up without her. After Walker ordered his ex-wife to stop at a closed 

restaurant parking lot, he got out of the car, retrieved the baseball bat from 

the trunk, and again told his ex-wife that if she told police what had 

happened he “had people” who would hurt her. Walker then threw the bat

in a dumpster and jogged away. After Walker jogged away, Walker’s exwife drove to a drugstore and called 911. The victim died of blunt force 

trauma to his head.
STATE v. WALKER

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¶4 At trial, Walker admitted killing the victim. But, he argued he 

was guilty of “provocation manslaughter” and not murder because he had 

“freaked out” after finding his ex-wife in his bed with the victim. Ariz. Rev. 

Stat. (“A.R.S.”) § 13-1103(A)(2) (Supp. 2015)

1 (person commits provocation 

manslaughter if he or she commits second-degree murder “upon a sudden 

quarrel or heat of passion resulting from adequate provocation by the 

victim”); A.R.S. § 13-1101(4) (2010) (“‘Adequate provocation’ means 

conduct or circumstances sufficient to deprive a reasonable person of selfcontrol.”). 

¶5 A jury found Walker guilty on the counts listed above. See 

supra ¶ 1. The superior court sentenced Walker to an aggregate term of 30

years in prison.

DISCUSSION

I. The Murder and Manslaughter Jury Instructions and Verdict Form

A. Background

¶6 At Walker’s request, the superior court instructed the jury on

second-degree murder as a lesser-included offense of first-degree murder. 

That instruction identified the elements of second-degree murder and

explained the difference between first and second-degree murder. The 

instruction further informed the jury that if it determined Walker was guilty 

of either first or second-degree murder but had a reasonable doubt as to

“which it was,” it was required to find Walker guilty of second-degree

murder. To ensure that the jury would consider whether the circumstance 

differentiating second-degree murder from provocation manslaughter was 

present, the court then instructed the jury as follows:

If you find the elements of second-degree 

murder proven beyond a reasonable doubt, you 

must consider whether the homicide was 

committed upon a sudden quarrel or heat of 

passion resulting from adequate provocation by 

the victim. If you unanimously find that the 

homicide was committed upon a sudden 

quarrel or heat of passion resulting from 

 

1Although the Arizona Legislature amended certain statutes 

cited in this decision after the date of the offenses, the revisions are 

immaterial to the resolution of this appeal. Thus, we cite to the current 

version of these statutes.
STATE v. WALKER

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adequate provocation by the victim, then you 

must find the defendant not guilty of seconddegree murder.

(Emphasis added.) See State v. Lua, 237 Ariz. 301, 306, ¶ 20, 350 P.3d 805, 810 

(2015) (quoting Rev. Ariz. Jury Instr. (“RAJI”) Stand. Crim. 11.04 (seconddegree murder) (3d ed.)). 

¶7 At Walker’s request, the superior court also instructed the 

jury on provocation manslaughter as a lesser-included offense of seconddegree murder. Structured in accordance with State v. LeBlanc, 186 Ariz. 

437, 438, 924 P.2d 441, 442 (1996) (jury may deliberate on a lesser-included

offense if it either finds defendant not guilty on the greater charge or, after 

reasonable efforts, cannot agree whether to acquit or convict on the greater 

charge), the court instructed the jury as follows:

The crime of second-degree murder includes 

the lesser offense of manslaughter. You may 

consider the lesser offense of manslaughter if 

either

1. you find the defendant not guilty of second 

degree murder[;] or

2. after full and careful consideration of the 

facts, you cannot agree on whether to find the 

defendant guilty or not guilty of second degree

murder. 

(Emphasis in original.) 

¶8 Finally, the superior court gave the jury a single verdict form 

that addressed all three homicide offenses—first-degree murder, seconddegree murder, and provocation manslaughter. As relevant here, the 

portion of the verdict form that addressed provocation manslaughter 

instructed the jury as follows: “If you find the defendant guilty of Second 

Degree Murder, do not complete this portion of the verdict form. In other 

words, complete this portion only if you find the defendant either not guilty 

of Second Degree Murder or you are unable to decide.” (Emphasis in 

original.) Walker did not request this verdict form but raised no objection 

to it. Indeed, at the time of Walker’s trial, the verdict form and the foregoing 

instructions were in accordance with this court’s opinion in State v. Lua, 235 

Ariz. 261, 261, ¶ 1, 330 P.3d 1018, 1018 (App. 2014), vacated, 237 Ariz. at 307, 

¶ 21, 350 P.3d at 811. In that opinion, we held that provocation 
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manslaughter was a lesser-included offense of second-degree murder. Id. 

at 264, ¶ 12, 330 P.3d at 1021.

B. The Instructions and Verdict Form Were Contradictory and 

Misstated the Law

¶9 On appeal Walker argues the verdict form and the 

instructions discussed above were contradictory and misstated the law. 

Because Walker did not object to the verdict form, we review his arguments 

about it for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19-

20, 115 P.3d 601, 607 (2005). And even though Walker requested the jury 

instructions, he has not waived his right to challenge those instructions on 

appeal under the invited error doctrine (and the State does not argue 

otherwise) because, as noted, the instructions were in accordance with thenexisting law. See State v. Miranda, 200 Ariz. 67, 68 n.1, ¶ 1, 22 P.3d 506, 507 

n.1 (2001) (invited error doctrine does not bar defendant from appealing

jury instruction given by superior court at his request when law changed 

after his trial). Accordingly, we review Walker’s arguments about the jury 

instructions for fundamental error as well. Id. (reviewing jury instructions 

requested by defendant for fundamental error when law changed posttrial).

¶10 The verdict form and instructions may be correct statements 

of the law if considered in isolation and without context. When we consider 

them together, and in the context of this case, however, they were 

confusing, contradictory, misstated the law and resulted in fundamental, 

prejudicial error. Henderson, 210 Ariz. at 567, ¶¶ 19-20, 115 P.3d at 607.

¶11 First, provocation manslaughter is not a lesser-included 

offense of second-degree murder. Lua, 237 Ariz. at 303, ¶ 7, 350 P.3d at 807. 

It is simply a less serious offense. Id. at 305, ¶ 16, 350 P.3d at 809. Second, 

a superior court should not give a LeBlanc-type of instruction when it has 

instructed the jury on provocation manslaughter. Id. at 306, ¶ 19, 350 P.3d 

at 810. Instead, if the court instructs the jury on provocation manslaughter, 

it should give the additional provocation language approved by the 

supreme court in Lua. Id. at ¶ 20. That is, the court should instruct the jury 

that if it finds the State has proven all the elements of second-degree

murder, it must consider “whether the homicide was committed upon a 

sudden quarrel or heat of passion resulting from adequate provocation by

the victim,” and that, if it makes those findings, it must find the defendant 

guilty of manslaughter rather than second-degree murder. This ensures

“the jury will consider whether the circumstance differentiating seconddegree murder from provocation manslaughter is present” and justify a 
STATE v. WALKER

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finding of guilt for provocation manslaughter. Id. (citing comment to RAJI 

Stand. Crim. 11.04). 

¶12 In this case, however, the court included the additional 

provocation language for the second-degree murder instruction and the 

LeBlanc-type instruction in its instructions to the jury. The result was the

second-degree murder instruction correctly told the jury it must consider 

whether the offense was provocation manslaughter if the State proved 

every element of second-degree murder, but the LeBlanc-type instruction 

that immediately followed that instruction directly contradicted that 

instruction as it informed the jury that it may consider manslaughter only if 

it found Walker not guilty of second-degree murder or could not agree on a 

verdict for second-degree murder. The verdict form for the homicide 

offenses compounded the confusion further because it also contradicted the 

second-degree murder instruction and told the jury “do not” complete the 

manslaughter portion of the form if it found Walker guilty of second-degree

murder. The verdict form then instructed the jury, “In other words, 

complete this portion only if you find the defendant either not guilty of 

Second Degree Murder or you are unable to decide.” (Emphasis in 

original.)

¶13 The superior court’s summary of the homicide verdict form 

immediately after the State’s rebuttal argument compounded the 

confusion. The court told the jury that if it considered second-degree

murder and either found Walker not guilty of second-degree murder or 

could not reach a decision on second-degree murder, “now you can go on 

to manslaughter. If you find him guilty of second-degree murder, you 

don’t consider manslaughter. You are done with that count. All right? 

Does that make sense?” Therefore, the jury began its deliberations having 

been told that it could not consider whether the offense was provocation 

manslaughter unless it either found Walker not guilty of second-degree

murder or could not reach a decision on second-degree murder. This also 

directly contradicted the second-degree murder instruction and misstated

the law. 

¶14 Our supreme court has instructed that we are to presume 

juries follow their instructions. State v. Manuel, 229 Ariz. 1, 6, ¶ 24, 270 P.3d 

828, 833 (2011). The instructions, taken together and considered in context,

contradicted each other, were confusing, misleading, and misstated the law. 

If the jury followed these instructions and the verdict form, it would not 

have been able to consider whether the offense was provocation 

manslaughter. This was fundamental, prejudicial error that denied Walker 

a fair trial on the homicide charge. 
STATE v. WALKER

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¶15 In its answering brief, the State acknowledges the instructions 

and verdict form were incorrect but argues the error was harmless because

the evidence did not support instructing the jury on provocation 

manslaughter. We reject the State’s argument; the trial evidence amply 

supported instructing the jury on provocation manslaughter. State v. 

Rodriguez, 192 Ariz. 58, 61, ¶ 16, 961 P.2d 1006, 1009 (1998) (party is entitled 

to have jury instructed on any theory reasonably supported by the 

evidence). 

¶16 Walker testified he and his ex-wife were still “husband and 

wife” despite their divorce, and considered his ex-wife his “property.” 

Friends and neighbors testified Walker and his ex-wife presented 

themselves as a couple.

¶17 Walker viewed the victim as a “problem” and did not want 

the victim around his ex-wife or his children. Walker testified that several 

years before the attack, his ex-wife admitted she had an affair with the 

victim while she and Walker were still married. Although she promised 

Walker the victim would no longer be part of her life, several months later

Walker discovered the victim at a park with his wife and children. Walker 

then attacked the victim. Less than two months before Walker found his 

ex-wife in bed with the victim, Walker threatened the victim in a Facebook 

post after finding a picture of his two children on the victim’s Facebook 

page. 

¶18 Walker testified that given all this, he “freaked out” and “lost 

it” when he saw the victim in bed with the woman he still considered his 

wife. Walker believed his ex-wife and the victim were cheating on him 

again and told the jury that was why he grabbed the baseball bat and struck 

the victim in the head.

¶19 This evidence was more than sufficient to support instructing 

the jury on provocation manslaughter. Indeed, at the close of the defense 

case, the superior court acknowledged, “It is, in many ways, a classic 

manslaughter situation.” That Walker’s defense and the supporting 

evidence may have been imperfect or unpersuasive—as the State argues on 

appeal—presented issues for the jury to decide. State v. Cid, 181 Ariz. 496, 
STATE v. WALKER

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500, 892 P.2d 216, 220 (App. 1995) (credibility of the evidence and its weight, 

if any, are matters for the jury to decide).2

¶20 The State also argues the error was harmless because 

provocation manslaughter should apply only when a defendant “catches” 

a spouse in an adulterous relationship. We reject that argument. First, 

A.R.S. § 13-1103(A) defines provocation manslaughter broadly—as the 

commission of second-degree murder “upon a sudden quarrel or heat of 

passion resulting from adequate provocation by the victim.” Second, on its 

face, the statute is not conditioned on a pre-existing spousal relationship. 

See Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230 (1996) (when 

interpreting a statute, appellate court looks to its plain language as the best 

indicator of legislative intent). And third, the State’s argument cannot be 

squared with the Arizona Supreme Court’s decision in State v. Harwood, 110 

Ariz. 375, 519 P.2d 177 (1974). There, the defendant, who was not married 

to the victim, shot her when she threatened to follow him home from a bar 

and cause a disturbance at his house. Id. at 377, 519 P.2d at 179. The

supreme court reversed the defendant’s conviction because the superior

court had failed to instruct on provocation manslaughter. Id. at 380, 519 

P.2d at 182.

¶21 We thus agree with Walker that the superior court committed 

fundamental, prejudicial error in instructing the jury regarding provocation 

manslaughter. We therefore reverse his conviction for second-degree 

murder and remand for a new trial on that offense.

II. The Remaining Counts and Issues

¶22 Walker’s opening brief asked that we reverse all of his 

convictions. Walker’s arguments on appeal, however, concerned only his 

 

2The State also argues in its answering brief that Walker 

conceded in his opening brief that his provocation manslaughter defense 

was “not true.” We see no such concession in his opening brief, and the 

State’s argument is based on a misreading of Walker’s briefing on appeal.

In his opening brief, Walker argued the superior court should not have 

excluded evidence that he claimed showed the victim was sexually preying 

on his children, asserting that this evidence further explained why he 

attacked the victim—he discovered the victim in his home with access to 

his children, and he believed the victim was “preying upon his young 

children.” He then argued that without this evidence, the State was easily 

able to demolish his provocation manslaughter defense at trial as “not 

true.”
STATE v. WALKER

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conviction for second-degree murder. He did not argue that any of the 

asserted errors affected his other convictions or sentences. Therefore, we 

affirm Walker’s convictions and sentences on the other counts. 

¶23 Finally, because we reverse and remand Walker’s conviction 

for second-degree murder, we have not addressed the alleged prosecutorial 

misconduct or the superior court’s preclusion of evidence. Our decision 

does not prevent Walker from re-litigating on remand the admissibility of 

the evidence precluded by the superior court.

CONCLUSION

¶24 We reverse Walker’s conviction for second-degree murder 

and remand for proceedings consistent with this decision. We affirm 

Walker’s other convictions and sentences.