State v. Acree

Citation121 Ariz. 94,588 P.2d 836
Decision Date20 December 1978
Docket NumberNo. 4383,4383
PartiesSTATE of Arizona, Appellee, v. Charles Tilton ACREE, Appellant.
CourtArizona Supreme Court

John A. LaSota, Jr., Atty. Gen., by William J. Schafer, III, and Diane M. Ramsey, Asst. Attys. Gen., Phoenix, for appellee.

William C. Porter, Kingman, for appellant.

HAYS, Justice.

Defendant Charles Tilton Acree was convicted of assault with a deadly weapon, to wit, a gun, in violation of A.R.S. § 13-249. We have jurisdiction pursuant to 17A A.R.S. Rules of the Supreme Court, rule 47(e)(5).

Early in the evening of August 10, 1977, Acree argued with a third party about a debt. The victim, Doris Hartman, overheard the argument but did not participate in it. Acree was angry and left the scene of the argument, returning to the trailer he shared with the victim in the victim's car while the victim herself walked home. There were indications that Acree was intoxicated, but that in general he had good physical control over himself. He had, by his own admission, been drinking beer and had consumed two or three 6-packs over a course of some seven hours.

When Doris Hartman entered the trailer, she was confronted by Acree who had a .22-caliber pistol in his hand. She retreated towards her car, but Acree followed and told her that "(i)f you get in there (the car), I'll kill you." He then fired three pistol shots into the windshield of the car. The victim was struck in the arm by bits of flying glass. After this, Ms. Hartman walked away from the scene and sought help. Acree went to a friend's residence and hid in the garage where he was apprehended after having accidentally shot himself in the hand.

Acree has assigned as error the refusal of the trial court to grant his request that the Recommended Arizona Jury Instruction, Crimes 3, on the definition and elements of the crime of assault with a deadly weapon be given. The court instead gave the instruction prepared and requested by the prosecution Assault with a deadly weapon, to wit, a gun has two elements. There must be a general intent to wilfully commit an act, the direct, natural and probable consequence of which, if successfully completed, would injure another physically by the use of a gun, and the defendant must be able to cause physical injury.

In contrast, the instruction requested by the defense reads:

Assault with a deadly weapon has two elements. (1) There must be an attempt to injure another person physically by the use of a deadly weapon, and (2) the defendant must be able to cause physical injury. The defendant does not have to touch the victim in order to commit an assault.

In denying the defense's motion, the trial court reasoned that while the requested instruction correctly defines the crime of assault with a deadly weapon if a gun is actually fired at the victim, it does not adequately cover the situation in which a loaded gun is pointed at the victim but never fired. Furthermore, the court recognized that under State v. Gary, 112 Ariz. 470, 543 P.2d 782 (1975), Cert. denied, 425 U.S. 916, 96 S.Ct. 1517, 47 L.Ed.2d 767 (1976), attempt to do physical harm is not an element of the crime of assault with a deadly weapon when a firearm is used. The very act of pointing the gun in a threatening manner may constitute an assault. Id. 112 Ariz. at 471-72, 543 P.2d at 783-84. The instruction given by the trial court reflects our decision in Gary. In fact, it repeats much of the language set forth in State v. Dillon, 26 Ariz.App. 220, 222, 547 P.2d 491, 493 (1976). We thus find no error in the instruction given.

Acree also contends that the evidence was insufficient to support a verdict of guilty. We first note that a reviewing court in a criminal case does not weigh the evidence to decide whether it would reach the same conclusion as the trier-of-fact. State v. Barnett, 112 Ariz. 210, 211, 540 P.2d 682, 683 (1975). It reviews the evidence in the light most favorable to sustain the conviction and resolves all reasonable inferences in favor of the state. State v. Moore, 111 Ariz. 496, 497, 533 P.2d 663, 664 (1975). Given this framework and our opinion in Gary, supra, we cannot say as a matter of law that the verdict is clearly contrary to the weight of the evidence or that there is a complete absence of probative facts to support the verdict.

Acree's third contention maintains that the court erred in allowing the prosecution to cross-examine and impeach their own witness, Doris Hartman. Acree complains that the impeachment was improper under the circumstances because the prosecution was not surprised, damaged or prejudiced by the testimony, no foundation had been laid, and the impeachment went to collateral matters.

At trial, the prosecution called Doris Hartman as a witness. In a tape recording of an interview with Ms. Hartman conducted by police officers two days after the incident, Ms. Hartman indicated that Acree had pointed the gun at her and had tried to shoot her. On the witness stand, however, she testified that Acree had never pointed the gun at her, that she did not believe Acree would have shot or harmed her, and that she could have blown the entire matter out of proportion. At this point the prosecution sought to introduce the tape recording.

This case was tried under the new Arizona Rules of Evidence which became effective on September 1, 1977, and which have as their source the Federal Rules of Evidence. Under Rule 607 the credibility of a witness may be attacked by any party, including the party calling him. The federal courts have interpreted this rule as eliminating surprise as a prerequisite to impeaching one's own witness. E. g., United States v. Palacios, 556 F.2d 1359, 1363 (5th Cir. 1977). We agree. We think too that the need to prove damage or prejudice before impeaching one's own witness has likewise been eliminated by Rule 607.

Acree also claimed that the impeachment was improper due to the absence of a foundation for it. The record in this case controverts Acree's contention about the lack of foundation. When the prosecutor stated in the middle of cross-examining Doris Hartman that he "would like to play back the statement given by the witness in this matter because apparently she does not recall," the court interrupted him and ordered a fifteen-minute recess in order to hold proceedings in chambers out of the presence of the jury. The court declared that it would not allow the tape to be played without a further foundation and insisted that the prosecutor lay the foundation for the tape by calling a police detective to the stand. The prosecutor did so. Admittedly, the prosecutor did not ask Ms. Hartman about the prior inconsistent statements...

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38 cases
  • State v. Tison
    • United States
    • Supreme Court of Arizona
    • July 9, 1981
    ...the evidence. State v. Brown, 125 Ariz. 160, 608 P.2d 299 (1980); State v. Long, 121 Ariz. 280, 589 P.2d 1312 (1979); State v. Acree, 121 Ariz. 94, 588 P.2d 836 (1978). It will be viewed in the light most favorable to sustaining the conviction and all reasonable inferences will be resolved ......
  • State v. Huerstel, CR-01-0103-AP.
    • United States
    • Supreme Court of Arizona
    • September 2, 2003
    ...prior inconsistent statements are admitted, "such statements may be used substantively as well as for impeachment." State v. Acree, 121 Ariz. 94, 97, 588 P.2d 836, 839 (1978). Acree predicated the substantive use of a prior inconsistent statement on the fact that the witness who made the st......
  • James v. State
    • United States
    • Court of Appeals of Mississippi
    • October 31, 2013
    ...of surprise”: Burgin v. State, 747 So.2d 916, 919 (Ala.Crim.App.1999); Eubanks v. State, 516 P.2d 726, 728 (Alaska 1973); State v. Acree, 121 Ariz. 94, 588 P.2d 836, 838 (1978); State v. Graham, 200 Conn. 9, 509 A.2d 493, 498 (1986); Morton v. State, 689 So.2d 259, 262 (Fla.1997), overruled......
  • Walker v. State, 0658 Sept. Term, 2001.
    • United States
    • Court of Special Appeals of Maryland
    • May 31, 2002
    ...See Burgin v. Alabama, 747 So.2d 916, 919 (Ala.Crim.App.1999); Eubanks v. Alaska, 516 P.2d 726, 728 (Alaska 1973); Arizona v. Acree, 121 Ariz. 94, 588 P.2d 836, 838 (1978); Connecticut v. Graham, 200 Conn. 9, 509 A.2d 493, 498 (1986); Morton v. Florida, 689 So.2d 259, 262 (Fla. 1997), overr......
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