BISBEE — They had a verdict. Then they didn’t.
That was the bizarre turn of events of Roger Wilson’s murder retrial Thursday afternoon and it all hinged on the response of one juror.
After deliberating for over five hours, the five women and seven men who made up the jury came back just after 3 p.m. announcing that they had a verdict.
Wilson is being retried for first-degree murder after the Arizona Court of Appeals reversed his conviction in a 2017 killing. The higher court said Cochise County Superior Judge Timothy Dickerson made an error when he left out a particular instruction to jurors in 2021 before they deliberated the case.
Wilson was convicted and sentenced to natural life in prison.
His retrial began in early September.
After three grueling weeks of testimony from more than 20 witnesses, as well as looking at bloody images of the dead man repeatedly on a large screen TV in the courtroom, the jurors said they had reached a verdict after getting the case at about 10 a.m. Thursday.
A form had been provided to the 12-member panel on which each juror could decide whether Wilson was guilty or not guilty of first-degree murder, second-degree murder, manslaughter or lesser charges.
When they emerged from the jury room. though, the jurors had forgotten to mark the space for first-degree murder and had to go back and complete the form. When they returned, they had marked “unable to agree” for first-degree murder.
They did find Wilson guilty of second-degree murder.
However, when the clerk polled each juror to determine if the verdict reached had been each individual’s decision, juror No. 5 — the youngest of the dozen — said he did not think Wilson was guilty of second-degree murder. He was asked twice and said no.
Dickerson had initially asked the juror about the first degree murder charge and the second degree murder offense and the man said he did not understand the query. One of the prosecutors said the judge was asking a compound question and perhaps he should simply ask the juror about the second degree murder charge.
The juror to his right stared at the young juror in astonishment, and the victim’s family began shaking their heads and crying.
The judge asked the jury to leave the courtroom and Wilson’s attorney, Chris Kimminau, called for a mistrial.
Dickerson denied the motion, but was trying to decide whether the jurors should continue deliberating or go home and start fresh on Friday morning.
“I don’t want it to seem like we’re rushing the jury,” the judge said.
Prosecutor Lori Zucco suggested ditching the doubtful juror and having one of the alternate jurors fill in. Dickerson decided against that also and told the jurors they would have to start anew on Friday at 9:30 a.m.
After the jurors filed out, Wilson stood up and told the judge he wanted to press charges against Zucco and Cochise County Sheriff’s Sgt. Todd Borquez for misrepresenting the case to the panel. He also turned toward the family of J.D. Arvizu — the man he is accused of shooting on June 22, 2017 — and told them he was sorry they had been lied to during the retrial.
Wilson has never denied he shot the 23-year-old Arvizu that morning at 1 a.m. on Santa Elena Avenue in south Sierra Vista, a dark stretch of road that runs parallel to State Route 92. But he has always maintained he did so in self-defense because he thought Arvizu, who was known for having a hot temper and “never backing down from a fight,” was going to harm him that morning.
Wilson was standing outside the gate of his mother’s residence on Santa Elena and Arvizu, who was walking to a friend’s house on Sagebrush Road nearby, stopped when he saw Wilson.
The two men had never gotten along and there were two scuffles between them in the days leading up to the murder, investigators have said. Additionally, Wilson had always accused Arvizu and others in the neighborhood of stealing from his mother’s house.
In the days before the killing, Arvizu had punched Wilson in the face and had also cut him on the nose with a knife-like weapon. Witnesses had said that Wilson had commented that he (Wilson) was “old school” and that Arvizu would get his.
There also was an instance when Wilson had a gun and Arvizu said to him that he had better “use it” the next time he brandished it.
The morning of the shooting Wilson said Arvizu came up behind him and said “What’re you gonna do now (expletive?)”
Wilson’s attorney said Arvizu shined a flashlight in Wilson’s face and Wilson shot the younger man because he believed his life was in danger. Wilson also believed others were in cahoots with Arvizu and were going to harm him and his mother.
Wilson blasted at Arvizu with a 20-gauge shotgun, piercing Arvizu’s left side directly under his nipple.
Arvizu fell backward and then got up and ran 160 yards toward the trailer on Sagebrush where he was initially headed, prosecutors said. Wilson went after him, attempting to reload the weapon.
Prosecutors said Arvizu was not armed, except for the pink flashlight he had flashed on Wilson. Kimminau had thrown that into doubt, showing the jury an image of Arvizu’s machete in front of the trailer where he was headed that morning.
Kimminau said Wilson was frightened because he did not know if others were going to hurt him and he went after Arvizu to defend himself; Zucco said Wilson just wanted to make sure he could finish Arvizu off because Arvizu had embarrassed Wilson in front of others when he punched him.
The first jury chosen in 2021 agreed with the prosecution.
But the Arizona Court of Appeals remanded the case to Superior Court earlier this year.
The higher court did not deny Wilson killed Arvizu. But it ruled Dickerson was at fault when he failed to tell the panel Arizona law allows people to use deadly physical force to prevent certain crimes.
Armed with that information, the appellate court said, the jurors might have concluded the shooting by Wilson was justified and voted to acquit him of first-degree murder. The appellate court reversed Wilson’s conviction and he was sent back to the Cochise County Jail where he has been held on $500,000 bond.