State v. Westbrook

• Decision Date: 07 October 1965
• Docket Number: No. 1385,1385
• Citation: 406 P.2d 388,99 Ariz. 30
• Parties: STATE of Arizona, Appellee, v. Thomas A. WESTBROOK, Appellant.
• Court: Arizona Supreme Court

Page 388

406 P.2d 388

99 Ariz. 30

STATE of Arizona, Appellee, v. Thomas A. WESTBROOK, Appellant.

No. 1385.

Supreme Court of Arizona, In Banc.

Oct. 7, 1965.

Darrell F. Smith, Atty. Gen., Robt. W. Pickrell, former Atty. Gen., Paul G. Rosenblatt, Asst. Atty. Gen., and Robt. Corbin, Maricopa County Atty., for appellee.

Clyde E. Douglas, Phoenix, for appellant.

UDALL, Justice.

The appellant, Thomas A. Westbrook, hereinafter called defendant, was found guilty of first degree murder in a trial by jury in the Superior Court of Maricopa County. The jury fixed the penalty at death. He now appeals.

Defendant, in September 1961, engaged the law firm of Tognoni, Parsons, Birchett & Gooding, of Phoenix, to represent him in the matter of his claim before the Industrial Commission of Arizona. Mr. William K. Strong was the attorney in the firm assigned to handle defendant's case. Following a hearing at the Industrial Commission in October, 1961, at which Strong represented the defendant, an award was entered in November 1961, granting a sum for loss of wages and allowing medical expenses only to the date of the October 1961 hearing, on the ground that his condition was stationary, requiring no further medical treatment.

Strong claims to have explained to defendant that should this award be protested because of the termination of the medical benefits, the award for loss of wages would not be paid at that time. Strong testified that defendant agreed for this reason not to contest this award. Defendant, however, denies he was ever told of this award by Strong, and testified the first he knew of it was when he received a letter from the Industrial Commission in December, 1962 advising him that he could not receive further medical benefits because he had not protested the November 1961 award within the required twenty-day period.

Defendant, immediately upon receiving this letter, went to the firm's office. He declares that his purpose in doing so was to ask Strong to accompany him to the Industrial Commission to try to reopen his case, notwithstanding that the attorneyclient relationship had been severed some months before. Defendant was carrying a revolver when he went to the law office at about 11 a. m. on December 28, 1962. He explains his carrying this gun by stating that he carried it for protection, as he had been assaulted once by robbers, and, also, because he was afraid to go unarmed to the Industrial Commission. This revolver was in a holster on his belt under his coat.

Defendant met Mr. Birchett, the deceased, as he was riding up in the elevator on his way to see Strong. Defendant told the deceased he wanted to talk with Strong about his Industrial case and asked deceased if he would be present during this conference. The deceased had defendant wait in the reception room of the law office while he went to Strong's office and notified Strong that defendant wished to see both of them. Deceased waited in Strong's office while the latter conducted defendant into Strong's office.

The only witnesses to the events culminating in the death of Birchett were Strong and defendant. Strong's version of these events is as follows: Deceased sat at the southeast corner of Strong's desk. Strong sat behind his desk, facing east, and defendant sat across from Strong, facing him. Defendant immediately produced the letter he had received that morning from the Industrial Commission and gave it to Strong, saying to him that the Commission had told him that the reason he could not reopen his case was because Strong had not protested his award. Strong read the letter, then gave it to the deceased, who then read the letter, placed it back onto the desk, and asked Mr. Westbrook, 'What is your purpose in being here today? We are not representing you now. We will not represent you in the future. What is your purpose here today?'

All the conversation to this point was calm and no one had made any threats or raised their voices. Strong then testified that at this point defendant arose from his chair and pulled a revolver from underneath his coat. Strong, upon seeing the revolver immediately dived behind his desk; the last thing he saw when he did so was defendant standing there with a revolver and deceased still seated; that upon his falling onto the floor he immediately heard two or three shots fired. He waited a moment or two, then jumped up and at that time saw deceased walking out the door of the office. He saw defendant standing there where he had been when he first stood up and drew the gun, but that now he was facing south pointing the revolver in a southerly direction, toward the chair where deceased had been seated.

Strong immediately rushed defendant and grappled with him, whereupon they both fell against the east wall of the office and then to the floor. Strong stated he 'believed' defendant's head struck the rung of the chair in which deceased had been sitting. He did not see defendant's head strike this chair but did see blood on two rungs of this chair. He saw blood on the back of defendant's head and saw blood on the carpet where his head was lying. Strong called for assistance and others promptly arrived and wrested the gun from defendant, who then continued lying upon the floor.

The deceased had been shot in the chest and left shoulder and left forearm. The examining physician stated the latter wound could have resulted from one of the bullets that inflicted the other wounds. Deceased died from these wounds within a short while.

Mr. Westbrook's version of the facts relating to this shooting varies considerably from that of Strong. He agrees that the three men were seated in Strong's office in the position indicated by Strong. After deceased examined the letter from the Industrial Commission defendant states that Strong then placed the letter in the envelope. When defendant reached over and attempted to retrieve the envelope Strong refused to turn it loose. Defendant pulled on the envelope but Strong still held onto it. The latter started pulling the envelope and as he did defendant leaned over the desk still holding onto the envelope with both hands, and in such a bent-over position that his face was near the desk top, face down.

As he was in this position, defendant testified that he was struck with a hard object upon the head, toward the back of his head, with such force as to stun him and cause a deep laceration necessitating several sutures. When defendant got up he observed deceased still seated to his left, and saw Strong standing on the opposite side of the desk. Strong then started around the desk toward him in 'a harried manner,' whereupon defendant pulled his gun from the holster. Before he could clear the gun from the holster Strong came up close to him and started striking him upon the shoulders with both hands. While defendant was being thus buffeted about the gun fired once. Defendant was then pushed to the floor by Strong. After he sat up deceased then took hold of the barrel of the gun and in the ensuing struggle for possession of the gun it again discharged. Deceased then dropped to one knee and one hand and defendant says he then knew deceased was hit.

Strong and defendant then again struggled and the gun fired twice. The latter was again knocked to the floor by Strong, where he lay until others came into the room, stepped on defendant's wrists and removed the gun from his hand.

Defendant, insisting upon representing himself, was tried by a jury and on April 12, 1963 was convicted of first degree murder with the penalty set at death.

The defendant's first assignment of error states that the court erred in determining that defendant was able to understand the proceeding and conduct his own defense. It is his contention that an accused should not be tried for a criminal offense if he is unable to understand the nature or object of the proceedings against him and to conduct his defense in a rational manner.

There was a pre-trial hearing conducted by the court under the provisions of Crim. Rule 250, 17 A.R.S. Three competent psychiatrists were appointed by the court to examine the defendant and, at the conclusion of their examination it was their unanimous opinion that within the meaning and purpose of Rule 250 the defendant understood the nature of the charges against him and could assist in his defense. Thereafter the court made a determination that defendant was able to understand the nature of the charges against him and could assist in his defense; and 'that he was neither mentally defective nor insane and could proceed to trial.'

Defendant contends, however, that there is a distinction between being able to assist in his defense and in being able to conduct his own defense. This contention would infer that there are two tests to be made, (1) that he understood the nature of the charges against him and is able to assist in his defense, and (2) that he understood the nature of the charges against him and was able to conduct his own defense. This contention is entirely fallacious since the law makes no such distinction. Neither under Rule 250 nor under any other criminal rule, or law of the state of Arizona, and lacking special circumstances, is the trial court required to set a hearing to determine whether the defendant through insanity or mental deficiency was not able to conduct his own defense.

In Arizona there is an explicit right given by the Constitution to defend one's self. This right is of equal stature with the right to the assistance of counsel. Art. 2, § 24, Const. of Arizona, A.R.S., provides:

'In criminal prosecutions, the accused shall have the right to appear and defend in person, and by counsel, * * *.'

At the preliminary hearing in this case the defendant was advised by the justice of the peace of his right to counsel, and the justice of the peace--through the superior court--obtained an order appointing an attorney to represent defendant. The defendant, however,...