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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

PHILIP JOHN MARTIN, Appellant. 

No. 1 CA-CR 20-0585 

Appeal from the Superior Court in Mohave County

No. S8015CR201201326 

The Honorable Billy K. Sipe, Jr., Judge, Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Linley Wilson, Casey Ball

Counsel for Appellee 

Mohave County Legal Advocate, Kingman

By Jill L. Evans

Counsel for Appellant

FILED 12-30-2021
STATE v. MARTIN

Decision of the Court

2 

MEMORANDUM DECISION

Judge Brian Y. Furuya delivered the decision of the Court, in which 

Presiding Judge Randall M. Howe and Judge Michael J. Brown joined.

F U R U Y A, Judge: 

¶1 Philip John Martin appeals from the superior court’s order 

amending his conviction from first to second-degree murder after he was 

improperly tried a second time for first-degree murder. He argues that, 

because double jeopardy barred his retrial for first-degree murder, he is 

entitled to a new trial on second-degree murder as the sole offense. For the 

reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 A neighbor was walking towards Martin’s home when 

Martin demanded he leave. The neighbor failed to do so, and Martin fatally 

shot him. 

¶3 The grand jury indicted Martin for first-degree murder. State 

v. Martin, 1 CA-CR 13-0839, 2014 WL 7277831, at *1, ¶ 3 (Ariz. App. Dec. 23, 

2014) (mem. decision). At trial, Martin admitted to the shooting but claimed 

it was legally justified, and the superior court therefore instructed the jury 

on self-defense and defense of premises. Id. The jury convicted Martin of 

second-degree murder as a lesser-included offense. Id. On appeal, we

reversed and remanded for a new trial because the court failed to instruct 

the jury on the crime-prevention defense. Id. at ¶ 1. 

¶4 On remand, the jury found Martin guilty of first-degree 

murder, and the court imposed a life sentence. State v. Martin, 247 Ariz. 101, 

102, ¶ 6 (2019) (Martin II). We affirmed, id., but on review, the Arizona 

Supreme Court concluded that Martin’s retrial for first-degree murder

violated his double jeopardy rights. Id. at 106, ¶ 24. The supreme court 

therefore vacated our decision and remanded to the superior court to

determine whether to reduce Martin’s conviction to second-degree murder, 

or to order a new trial without the jeopardy-barred charge of first-degree 

murder. Id. at ¶ 25. 

¶5 After considering the parties’ memoranda, the superior court 

found Martin was not entitled to a new trial. Instead, the court reasoned
STATE v. MARTIN

Decision of the Court

3 

that, by convicting Martin of first-degree murder, the jury in the second trial 

rejected his justification defenses. Noting that the jury was instructed on

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

the court concluded that the jurors would have convicted Martin of seconddegree murder had the State not presented them with the barred firstdegree murder charge. Accordingly, the court entered a judgment of guilt 

on second-degree murder and resentenced Martin to a presumptive term 

of 16 years’ imprisonment. Martin timely appealed and we have 

jurisdiction under Arizona Revised Statutes (“A.R.S.”) §§ 12-120.21(A)(1), 

13-4031, and -4033(A)(1). 

DISCUSSION

¶6 Martin argues the court erred by reducing his conviction to 

second-degree murder instead of granting a new trial on that charge.1 He 

contends the improper presence of the first-degree murder charge at the 

second trial “changed the landscape of the trial, making it more likely that 

[the jurors] convicted rather than continu[ing] to debate his innocence[.]”As 

indicative of this “changed landscape,” Martin points out that defense 

counsel, to avoid a first-degree murder conviction, stated during closing 

arguments that Martin may be guilty of second-degree murder. We reject 

Martin’s contention because it implicates a presumption that is not 

applicable in this case.

¶7 We review the court’s decision whether to grant a new trial 

for an abuse of discretion. State v. Hickle, 133 Ariz. 234, 238 (1982). This 

deferential standard of review is especially appropriate here because the 

judicial officer who ruled on Martin’s request for a new trial on remand 

from the supreme court also presided over the second trial. See State v. Rojas, 

247 Ariz. 399, 402, ¶ 11 (App. 2019) (“[W]e generally afford the trial court 

1 After briefing was completed in this matter, Martin personally filed 

a letter with this court on September 23, 2021, purporting to raise issues of 

prosecutorial misconduct and ineffective assistance of trial counsel (“IAC”). 

Because Martin is represented by appellate counsel and he has not timely 

requested to proceed in propria persona, we do not consider the letter. See 

Coleman v. Johnsen, 235 Ariz. 195, 196, ¶ 1 (2014) (recognizing a state 

constitutional right to self-representation on appeal but holding that 

defendants must give notice of intent to exercise that right by filing a notice 

within 30 days of filing a notice of appeal). Moreover, IAC claims may not 

be raised on direct appeal. State ex rel. Thomas v. Rayes, 214 Ariz. 411, 415, ¶ 

20 (2007). 

 
STATE v. MARTIN

Decision of the Court

4 

wide discretion in its decision to grant a new trial because of its intimate 

connection to the trial, including the opportunity to directly observe

testimony.”).

¶8 A defendant who is tried for an offense that is barred by 

double jeopardy is not automatically entitled to a new trial if convicted of a 

lesser-included offense that is not similarly barred. See Morris v. Mathews, 

475 U.S. 237, 245 (1986) (describing holding in Price v. Georgia, 398 U.S. 323 

(1970)). A presumption arises, however, when the conviction was 

“influenced by the trial on [the barred] charge” because the presence of “the 

greater offense for which the jury was unwilling to convict also made the 

jury less willing to consider the defendant’s innocence on the lesser charge.”

Id. 

¶9 The presumption of prejudice does not arise in cases such as 

here, where the jury is provided the opportunity to acquit on the charged 

(albeit jeopardy-barred) offense and convict on a lesser-included offense, 

but nonetheless convicts the defendant of the greater offense. Id. The 

remedy for such a constitutional violation depends on whether the 

defendant can show that “but for the improper inclusion of the jeopardybarred charge, the result of the proceeding probably would have been 

different.” Id. at 247. A defendant who shows such a “reliable inference of 

prejudice” is entitled to a new trial where only the lesser charge is presented 

to the factfinder. Id. at 246. If the defendant fails to show prejudice in this 

respect, the court may properly impose a conviction for the lesser-included 

offense. Id. at 246–47. Thus, to obtain a third trial in this case, Martin was 

required to establish that the jury at his second trial would probably not 

have returned a guilty verdict had second-degree murder been the only 

offense presented. 

¶10 The court’s determination that Martin failed to show 

prejudice was not an abuse of discretion. As the court noted, and the record 

reflects, the jury at Martin’s second trial was properly instructed on firstdegree murder, the lesser-included offense of second-degree murder, and 

the justification defenses of self-defense, defense of premises, and crime 

prevention. The court also determined that all the evidence admitted at trial 

would have been admitted had Martin been tried only on second-degree 

murder. 
STATE v. MARTIN

Decision of the Court

5 

¶11 On appeal, Martin does not challenge the court’s findings.2

Indeed, he concedes that evidence of his premeditation—the element that 

distinguishes first from second-degree murder, State v. Thompson, 204 Ariz. 

471, 478, ¶ 27 n.6 (2003)—would have been admissible to rebut his 

justification defenses had he been tried solely on second-degree murder. See 

State v. Mincey, 141 Ariz. 425, 435 (1984) (explaining that evidence of 

premeditation was admissible when defendant was retried solely for 

second-degree murder after his first-degree murder conviction was 

vacated). We therefore conclude that the court properly amended Martin’s 

conviction from first to second-degree murder without the need to grant 

Martin a third trial. 

CONCLUSION

¶12 Martin’s conviction and sentence are affirmed. 

2 Martin argues insufficient evidence supports the jury’s conclusion 

that he was not justified in shooting the victim. This argument is waived 

because Martin did not raise it when he appealed from his second trial in 

this case. See State v. Martin, 1 CA-CR 16-0551, 2018 WL 3031568, (Ariz. App. 

June 19, 2018) (mem. decision); State v. Martin, 245 Ariz. 42 (App. 2018) 

(vacated by Martin II).