State v. Allen

• Decision Date: 27 September 1976
• Docket Number: CA-CR,No. 2,2
• Citation: 27 Ariz.App. 577,557 P.2d 176
• Parties: The STATE of Arizona, Appellant, v. Thomas Alden ALLEN, Appellee. 800.
• Court: Arizona Court of Appeals

Page 176

557 P.2d 176

27 Ariz.App. 577

The STATE of Arizona, Appellant, v. Thomas Alden ALLEN, Appellee.

No. 2 CA-CR 800.

Court of Appeals of Arizona, Division 2.

Sept. 27, 1976.

Rehearing Denied Nov. 4, 1976.

Petition for Review Denied Nov. 30, 1976.

Bruce E. Babbitt, Atty. Gen. by Heather Sigworth, Asst. Atty. Gen., Tucson, for appellant.

Debus, Busby & Green, Ltd. by Jordan L. Green, Phoenix, for appellee.

OPINION

HOWARD, Chief Judge.

When the defendant in a criminal case presents a psychiatrist who testifies that the defendant was suffering from a mental disease or defect at the time of the crime and therefore did not know the difference between right and wrong, and the state does not present psychiatrists to rebut this testimony, must the defendant be found not guilty by reason of insanity? That is the issue to be decided in this case.

Defendant-appellee (hereinafter defendant) was tried by a jury in the Gila County Superior Court on three counts of assault with a deadly weapon and one count of first degree murder. The defenses were insanity and self defense. At the close of all the evidence defendant moved for a directed verdict contending that there was no state's evidence to rebut the defendant's lay and expert opinion evidence of insanity and therefore reasonable doubt of defendant's sanity rose as a matter of law. The court found the state offered no evidence of sanity, but nevertheless submitted the issue of guilt to the jury. However, the court also said that if there should be a guilty verdict, it would be set aside as contrary to the evidence.

The jury found defendant guilty of two counts, and not guilty of one count, of assault with a deadly weapon, and on the homicide count, guilty of voluntary manslaughter. Defendant thereupon moved pursuant to Rule 20, Rules of Criminal Procedure, for a judgment of acquittal, the grounds being the state's failure to rebut the defense's insanity evidence. The court took the motion under advisement and subsequently issued its order setting aside the jury verdict and entered a judgment adjudging the defendant not guilty by reason of insanity. It based its order on the state's failure to rebut 'creditable . . . lay and expert testimony offered by the defendant demonstrating a prior psychiatric problem and treatment, as well as insanity on the night in question.'

On June 17, 1975, the Gila County Attorney filed a petition for special action in the Arizona Supreme Court alleging, inter alia, that the trial court had abused its discretion in taking the Rule 20 motion under advisement in contravention of the language of the Rule. The Supreme Court agreed, and an opinion and order dated July 16, 1975, vacated all the trial court's orders subsequent to May 31, 1975, which included the order setting aside the jury verdict and the judgment of acquittal. See State ex rel. Dawson v. Superior Court, 112 Ariz. 123, 538 P.2d 397 (1975). The Supreme Court also allowed a specified period to file any motions under Rule 24, Rules of Criminal Procedure.

After an abortive attempt to receive relief in the federal court, defendant was sentenced and on the same date made a motion under Rule 24.2(a)(3) to vacate the judgment, on the ground that his conviction was obtained in violation of the due process clause of the Fourteenth Amendment of the United States Constitution and the Constitution of the State of Arizona because there was no relevant evidence as to sanity. On the basis of State v. White, 110 Ariz. 508, 520 P.2d 1132 (1974), the trial court ruled that because of the state's failure to prove sanity by relevant evidence the issue having been raised, the defendant's subsequent conviction constituted a denial of due process of law and therefore granted defendant's motion to vacate the judgment. The state appeals from this order.

The testimony adduced at trial shows that shortly after 1:00 a.m. on February 1, 1975, one Jeff Harris saw defendant roughing up a 10 year-old boy on the porch outside the Gay 90's Bar in Payson, Arizona. When defendant started to shake the boy's head by his hair in spite of Harris' objection, Harris pulled defendant's hand away. Defendant then swung at him. Defendant's friend, Doug Shearer, jumped on Harris when Harris struck back at defendant but Shearer was pulled off by Harris' friend, Dwayne Kaufmann. In the meantime, defendant and Harris were fist fighting for one or two minutes between the cars and trucks in a parking lot when they were pushed apart and Harris turned away. Dale Pennington, a friend of Harris, was also briefly involved in this fight. Defendant then said, 'Fuck it, I'm going to waste the muthafucker' and attacked Harris with a knife. He slashed Harris across the face cutting to the bone and creating a wound which required 40 stitches.

Harris thereupon retreated, first protecting himself by tossing gravel, and then with the help of Dale Pennington. Defendant then briskly and directly proceeded, knife drawn, to where Dwayne Kaufmann and Shearer were fighting in a ditch. When Kaufmann jumped up shouting 'No knives', defendant slashed across Kaufmann's throat with a knife. Kaufmann retreated out of the ditch and as he reached the top, he saw Bill Price (the homicide victim), who had just walked across the parking lot. Kaufmann shouted, 'Bill, get the hell out of here, they've got knives' but instead Price moved toward Kaufmann. Defendant then attacked Price, producing slash cuts across his face and neck. Price backed up with his hands over his face and defendant attacked him on his right side. The fatal injury to Price was a stab wound under his right armpit which severed an artery. Price staggered back to his truck in the parking lot and collapsed. As Mark Kaufmann (Dwayne's brother) knelt over Price and tried to stop Price's bleeding, defendant stabbed Mark in the throat.

Shearer heard someone say that they were going to get guns and he then said to defendant 'Tom, we've got to get out of here'. Both defendant and Shearer took off running. Defendant got to Shearer's truck first and was waiting in the passenger side when Shearer arrived. They tried to depart in the truck but a witness to the fight, Donald Lusk, cut off their escape route with his pickup truck and forced Shearer's truck into a ditch. Defendant dismounted from Shearer's truck and began to unsheath a rifle. At that point Lusk retreated by backing his truck away. Approximately three hours later defendant and Shearer were arrested by sheriff's deputies. One of the deputies testified that he did not notice anything unusual about defendant's face except for a cut on the side of his nose. A picture of him taken on February 1, showed no evidence of facial bruises or swelling other than the cut on the side of his nose.

Testifying on behalf of defendant were three psychiatrists who all were of the opinion that at the time of their examination, approximately two months after the incident, defendant was suffering from no psychiatric disorder of any kind and was perfectly normal.

Dr. Maier Tuchler testified that defendant was unable to recount in detail the events which transpired after he was ordered to let go of the child. He came to the conclusion that defendant had memory amnesia, the source of which might have been concussion, excessive alcohol abuse or panic. He did not believe it was induced solely by alcohol. He stated that his opinion, based upon the hospital records and his examination of defendant, was confirmed by the hypothetical question posed by defendant's attorney at trial. Dr. Tuchler concluded that because of defendant's emotional state and amnesia which was a part of his emotional state and caused by a combination of the emotions, alcohol and concussion, he did not believe that defendant had the ability to tell right from wrong at the time of the incidents. He testified that among the details which were important in arriving at his conclusion was the fact that, according to his information, defendant did not provoke a fight and handled his knife in a defensive manner. He concluded that defendant handled his knife in a defensive manner because the victims were slashed, which is a defensive thrust, as opposed to stabbing which is an aggressive thrust. ¹

Dr. Otto Bendheim testified that he examined the defendant on April 19, 1975 at the Arizona State Hospital. He took a psychiatric history and performed a mental status examination. He found that defendant was able to describe in some detail the events of February 1, 1975, but there were gaps where his memory failed him. Based upon his examination he felt that defendant had true memory amnesia. He admitted that when he filed his original report he had no firm opinion on the subject but was able to give an opinion in court based upon the hypothetical question posed by defendant and his assumption that defendant had a cerebral concussion. He admitted that if some of the facts were changed, his opinion would be different. He stated that in his opinion he gave great weight to the facts stated in the hypothetical question which assumed that defendant was held by the hair and bent backwards over the hood of a vehicle by two persons while a third person struck him repeatedly in the face. He also gave great weight to the assumption that defendant had a concussion and a broken nose. Dr. Bendheim admitted that the objective way to determine whether a person is suffering from a concussion is to examine the person at the time of the injury. He further admitted that when a person has a concussion his coordination and dexterity may be impaired. He clearly admitted that his testimony depended upon the hypothetical question being correct.

Dr. Harrison Baker, director of Forensic Psychiatry at the Arizona State Hospital, also examined defendant. He found that defendant had some recollection or ability to recall, in a rather spotty fashion up to a certain point, the events that occurred but that he had a...