State v. Andrews

• Decision Date: 13 November 1970
• Docket Number: No. 2009,2009
• Citation: 476 P.2d 673,106 Ariz. 372
• Parties: STATE of Arizona, Appellee, v. David Joseph ANDREWS and Jean Ellan Hughes, Appellants.
• Court: Arizona Supreme Court

Page 673

476 P.2d 673

106 Ariz. 372

STATE of Arizona, Appellee, v. David Joseph ANDREWS and Jean Ellan Hughes, Appellants.

No. 2009.

Supreme Court of Arizona, In Banc.

Nov. 13, 1970.

Gary K. Nelson, Atty. Gen., by Carl Waag, Asst. Atty. Gen., Phoenix, for appellee.

Ross P. Lee, Public Defender, by James H. Kemper, Deputy Public Defender, Phoenix, for appellants.

McFARLAND, Justice.

David Joseph Andrews, hereinafter referred to as defendant Andrews, and Jean Ellen Hughes, hereinafter referred to as defendant Hughes, were each convicted of two counts of assault with a deadly weapon and were sentenced to serve not less than 25 or more than 30 years on each count to run concurrently. From the conviction and sentence of the court they appeal. Count I charged that the defendants committed assault with a deadly weapon against one V. E. Jones in violation of A.R.S. § 13--249, and Count II charged the defendants with assault with a deadly weapon against one Fred Grantham.

On April 4, 1968, officer Fred Grantham of Tempe, Arizona, working 'the graveyard shift', at approximately 5:00 A.M. observed defendants standing by a brown Chevrolet parked at the rear of Ryan-Evans Drug Store at 10th and Mill in Tempe. Another patrol car was proceeding north down the street. They appeared to become very interested in that particular patrol unit and became still until the car passed. After the patrol car passed their vehicle was started, the lights came on and they proceeded north on Mill Avenue. Officer Grantham pulled behind them and stopped their vehicle about one-half block north for a routine check. There were four people in the car, the defendants, and Charlie and Harold Tobias who were minors riding with the defendants on their way to California. Defendant Hughes had been driving the car and officer Grantham requested her driver's license and a vehicle registration. She looked through her purse, the glove compartment and the trunk but was unable to produce either. In the meantime officer Carpenter came into the area. Defendant Hughes had told Grantham that her name was Jean Powers. The officer checked it with the Motor Vehicle Division through the dispatcher and was informed that the license plates were for a different car. Upon the failure to produce a driver's license or registration, the officers requested they follow them to the police station with the intention of having the driver 'post bond for driver's license, registration and fictitious license plates.' Defendant Hughes was instructed to follow Grantham's unit and Sergeant Carpenter was to follow the defendants' car. It was necessary they make a 'U' turn on the divided highway. Officer Grantham made the 'U' turn. Defendant Hughes, instead of following, turned into the northbound lane of the one-way road heading in the wrong direction. It was at this time that the chase started.

Grantham observed two subjects leaning out of the right-hand side of the vehicle and was warned by his fellow officer by radio that they were shooting. He noted indications on the pavement from bullets and heard the reports of the weapons. The defendants' car was a lane's width from Grantham's car and was at close range to it. He testified they were firing at him; that he was able to see who was firing and testified it was defendant Andrews and another subject, namely Harold Tobias; that they were both firing at the same time; that there was a total of 20 or 25 shots fired and two or three at that particular point. They were proceeding down Mill Avenue with defendants' car against the traffic. Officer Grantham was in the southbound lane with a red light and siren on. When they arrived at 10th and Mill, Officer V. E. Jones confronted the defendants' vehicle and when their vehicle approached Officer Jones, Officer Grantham noticed him ducking into the seat of his car. When they proceeded on around the curve onto Apache Boulevard they met a car and a couple of motor vehicles. The defendants' car went between the two motor vehicles. They were then near the intersection of McAllister and Apache Boulevard. The vehicle then made a very sharp, speedy turn to head north on McAllister. Officer Grantham proceeded to follow north and followed the defendants' car when they turned right at Orange where they abandoned their car. The defendants were followed and apprehended. The officers found two .22 caliber weapons in the front seat of the car. One was a larger gun than the other, one holding nine shells and the other seven. On the rear seat was a small caliber seven-shot hand gun, similar to the one on the front seat. The guns were identified and introduced into evidence. They also found a rifle in the trunk of the car. Sergeant Carpenter also described the manner in which the defendants' car was turned in the highway. He observed the defendant Andrews, and one of the juveniles shooting at his car. His description of the maneuvering of the cars and the shooting was substantially the same as that of Officer Grantham.

Officer V. E. Jones testified he was on duty on the morning of April 4, 1968 and heard the radio transmission of the chase. As he approached 10th Street he observed the car in the soutbound lane bearing down on him. He stopped the patrol unit and started the rotary red light on the top of the car. At this point the car was approximately 40 to 50 feet away from him. He testified 'I observed the driver of the vehicle, Miss Hughes, stick her arm out the window with a gun in hand, take a rest on the outside rearview mirror, and at that point I thought that she would shoot at me, and I leaned over in the seat. Immediately I heard three reports and the--upon hearing the third report I heard something hit the car.' He also identified a picture of his patrol car and pointed out a bullet mark on it. He further testified as to the maneuvering and the driving of the cars, stating that the approximate speed was 60 or 65 m.p.h.

Three witnesses were called by counsel for the defendants--the defendants Hughes and Andrews and Don Green, an officer at the jail where the defendants were incarcerated. Defendant Hughes testified that she had left Tucson for California; that she and Andrews were both 'loaded' with drugs; that she had taken peyote and LSD, and Harold Tobias had taken some peyote, but she testified 'I don't think Charlie was loaded. Drugged up, I mean. But could have been, I don't know.' She said that she was hallucinating; that she did not pull out a gun and shoot and based her argument largely upon the speed of her car, stating that she was never driving under 90 m.p.h. and did not take her hands off the wheel and that she had her foot all the way to the floor boards. In regard to the shooting she said:

'I imagine, you know, this is just assumption, I imagine some of the people might have been, but I know I didn't. There was one point, I guess there was shooting, I didn't hear it, that Dave was beating on Larry's arm trying to get the gun away from him. So I guess he was shooting, but I didn't hear the shots. I wasn't paying that much attention to it. The only thing I remember out of it, you know, from hearing about it, was that he was trying to get the gun away from Larry. That is all--Harold Tobias, we call him Larry.'

She did not in any way directly implicate the defendant Andrews in the shooting. Her testimony in regard to remembering what happened was--'There is quite a bit of it I don't. I don't remember because of the hallucinations and there is quite a bit I don't remember.'

In answer to a question about the testimony of Officer Jones in regard to her shooting she stated: 'It didn't happen from me. I am positive. I couldn't have shot. Cause I was driving and I had to have both hands on the wheel. Besides that he said, I believe, something about a bare arm or something, and I had a long sleeved blouse on.' Her counsel in his brief sums up her testimony as follows:

'Hughes told the jury that she was twenty-two years old and that on the day in question she and the other three men in the car had driven to Tempe from Tucson. She recalled being pulled over by a police car. She admitted having no driver's license or a registration certificate. Then she said that she had been told to follow Grantham to the police station. She remembered going down the wrong side of the road but her testimony soon degenerated into an almost incoherent account of the day in question. She seemed to remember very little between driving down the wrong side of the road and being captured in someone's garden. She vaguely remembered a squad car coming at her. She denied shooting at anybody. Hughes explained that her memory of the foregoing events was sketchy because half the time that she was driving in this chase, she was hallucinating. The night before she had taken some peyote. She had also taken some LSD. She told the jury that she had been on drugs since she was nine years old. She denied again and again firing a gun.'

The defendant Andrews testified that he and defendant Hughes had lived on a ranch in Tombstone for about two years. He corroborated the testimony of defendant Hughes about taking the drugs and being 'loaded' and that he did not remember making a trip from Tucson to Phoenix. He did not recall being arrested and only vaguely remembered being in jail in Phoenix.

On cross-examination he testified in regard to the things he was charged with 'I can't deny them. I can't say that I didn't do them.' Counsel in his brief sums up his testimony as follows:

'When David Joseph Andrews took the stand he testified that he was twenty-one years old and he generally denied remembering any of the events in question. Apparently, the last thing he remembered was arriving in Tucson. He did not remember coming from Tucson to Phoenix. His explanation for his inability to remember was that, like Hughes, he had been taking drugs, in his case since 1964. He had been taking peyote. He had been taking LSD...