State v. Arnett, CR-86-0349-PC

• Decision Date: 19 July 1988
• Docket Number: No. CR-86-0349-PC,CR-86-0349-PC
• Parties: STATE of Arizona, Appellee, v. James Alan ARNETT, Appellant.
• Court: Arizona Supreme Court

Page 1064

760 P.2d 1064

158 Ariz. 15

STATE of Arizona, Appellee, v. James Alan ARNETT, Appellant.

No. CR-86-0349-PC.

Supreme Court of Arizona,

In Banc.

July 19, 1988.

Robert K. Corbin, Atty. Gen. by William J. Schafer, III, Diane M. Ramsey, Asst. Attys. Gen., Phoenix, for appellee.

John J. Trebon, Flagstaff, for appellant.

CAMERON, Justice.

I. JURISDICTION

We granted defendant, James Alan Arnett's, petition for review of the trial court's denial of his petition for post-conviction relief. Ariz.R.Crim.P. 32.4. We have jurisdiction pursuant to Ariz.Const.Art. 6, § 5(3), A.R.S. § 13-4239 and Ariz.R.Crim.P. 32.9(c).

II. ISSUES

We address the following issues on review:

A. Should defendant's conviction of first degree murder, if based on the commission of a robbery, be set aside because he was neither charged with killing in the commission of a robbery nor with robbery itself?

B. May a conviction for a single prior crime be used as two statutory aggravating factors?

C. Did the trial court's exclusion of psychiatric testimony on the question of premeditation deny defendant the right to present a defense in violation of the sixth and fourteenth amendments to the United States Constitution?

III. FACTS

During the first week of February, 1976, defendant was staying with Victor Tremblay at Tremblay's residence in Van Nuys, California. On the evening of 6 February 1976, Tremblay returned home, laid his wallet and keys on the kitchen table, and fell asleep in the living room. Sometime during the night, defendant took the wallet and keys and left the residence with Tremblay's car, a gray Ford Granada. Tremblay's rifle, a Universal .30 caliber M-1 carbine, was in the car. On 8 February, defendant abandoned the car in northwestern Arizona, took the carbine and some backpacking equipment, and began walking cross-country. On the evening of 9 February, defendant came upon a construction site located approximately 18 miles northwest of Lake Havasu City, Arizona, on state highway 95. Waiting until workmen left for the day, he approached the site and looked for food. He spent the night there in an abandoned camper truck shell. Sometime after defendant settled into the camper shell, Elmer James Clary arrived at the construction site in his International pickup truck-camper. Clary also spent the night at the construction site in his camper.

Before daylight of the next morning, 10 February, defendant approached Clary and asked to buy some food. Clary replied that he had none to sell. Defendant then asked for a ride into any nearby town, and Clary said he did not have room for a passenger. Defendant then offered to trade jewelry for food, and Clary expressed interest in the trade. Defendant claimed that he then returned to a small shack where he had stored his backpack and the carbine. Defendant intended to get the carbine to help him "steal" Clary's truck. Unexpectedly, Clary followed appellant to the shack, and in defendant's words:

... I didn't know that he was going to do that--and we came back to the shack and I was at my backpack, I pulled the rifle [carbine] out and there was a short pause and I just let it up and I started shooting and I later learned that I shot him five times.

Clary had been standing just outside the doorway of the shack at the time of the shooting, and defendant pulled him inside the shed from where he had fallen to the ground. Defendant went through Clary's pockets, looking for the pickup truck keys, but then he realized it was already running. Defendant then loaded the backpack and the carbine in Clary's pickup truck and drove to California.

Upon reaching Bakersfield, defendant abandoned the truck and traveled by bus to Oakland. On 18 February, he left Oakland and began traveling north on foot. He was apprehended in Richmond, California during that night and taken to jail at the Richmond Hall of Justice. Defendant was initially arrested for a local burglary, and then awaited extradition to Arizona on the murder charge. On 25 February while in the Richmond City Jail, defendant made a detailed confession to Detective Donald Collier of the Richmond City Police Department regarding the shooting of Elmer James Clary. In the confession, defendant stated:

Defendant: I helped him get his truck started because it was cold and he left it running and we were talking. So I offered to sell him some jewelry for some food, and he wanted to see the jewelry, so I went into my backpack and what I had intended on doing was taking the rifle and stealing his truck. (Emphasis added.)

A construction worker discovered Clary's body in the shack on the morning of 10 February. Officers of the Mohave County Sheriff's Department began arriving at the scene within 45 minutes and "roped it off" to preserve any possible evidence. Medical testimony established that the victim had received five gunshot wounds, any of which could have been fatal. Ballistics analysis revealed that three "bullets" or "bullet fragments" extracted from the body of the victim had been fired by the Universal carbine recovered from defendant when he was arrested. Expended "cartridge cases" found around Clary's body at the construction site also matched the carbine. Fingerprint analysis disclosed defendant's prints on several items within Clary's abandoned pickup truck in Bakersfield. Footprints discovered around the construction site on the morning of 10 February matched a pair of boots which had been worn by defendant at the time of his arrest.

Defendant was convicted of first degree murder and was sentenced to death on 10 September 1976. The trial court found aggravating circumstances as authorized by A.R.S. § 13-454(E)(1) (prior conviction punishable by life imprisonment) and § 13-454(E)(2) (prior conviction for crime of violence). This court affirmed the conviction and death sentence in State v. Arnett, 119 Ariz. 38, 579 P.2d 542 (1978) [Arnett I ]. Defendant was resentenced to death following this court's decision in State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978), cert. denied, 440 U.S. 924, 99 S.Ct 1254, 59 L.Ed.2d 478 (1979). This court affirmed the resentencing in State v. Arnett, 125 Ariz. 201, 608 P.2d 778 (1980) [Arnett II ].

IV. QUESTIONS PRESENTED

A. SHOULD DEFENDANT'S CONVICTION FOR FIRST DEGREE MURDER, IF BASED ON THE COMMISSION OF A ROBBERY, BE SET ASIDE BECAUSE HE WAS NEITHER CHARGED WITH KILLING IN THE COMMISSION OF A ROBBERY NOR WITH ROBBERY ITSELF?

Defendant was charged with:

Count one: Murder in the first degree, a felony. On or about the 10th day of February, 1976, said defendant, JIM ALAN ARNETT, aka JIMMIE ALLEN ARNETT, aka JIM CLAY, aka JIM FARNER, committed murder in the first degree, to-wit: by shooting Elmer James Clary with a .30 calibre "Universal Carbine Serial # 321761" at or near Old West Town, milepost 197.5, Arizona Highway 95, in violation of Arizona Revised Statutes 13-451, 13-452, as amended and 13-453, as amended.

He was also charged in count two with grand theft auto. The trial court, however, dismissed this count after the jury was impaneled. Defendant was not charged with robbery.

Defendant claims that the indictment failed to provide him with notice that he would have to defend against a felony murder charge. We disagree.

At common law it was not necessary to charge in an indictment for murder that the murder was committed in the perpetration of another crime, in order to introduce proof showing that a felony was attempted in committing it; it was sufficient to charge murder in the common form, and then, upon proof that it was committed in the perpetration of a felony, malice, deliberation, and premeditation were implied.

Blake v. Morford, 563 F.2d 248, 251 n. 3 (6th Cir.1977), cert. denied, 434 U.S. 1038, 98 S.Ct. 775, 54 L.Ed.2d 787 (1978) (quoting Sullivan v. State, 173 Tenn. 475, 481-82, 121 S.W.2d 535, 537 (1938)).

Arizona law only requires that the indictment be a plain, concise statement of the facts sufficiently definite to inform the defendant of the offense charged. Ariz.R.Crim.P. 13.2. The indictment must state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Ariz.R.Crim.P. 13.2. The indictment in this case satisfied these requirements. There is no requirement that the defendant receive notice of how the State will prove his responsibility for the alleged offense. State v. Tison, 129 Ariz. 526, 538, 633 P.2d 335, 347 (1981), cert. denied, 459 U.S. 882, 103 S.Ct. 180, 74 L.Ed.2d 147 (1982).

Other jurisdictions share this view. See Averhardt v. State, 470 N.E.2d 666, 693 (Ind.1984), cert. denied, 471 U.S. 1030, 105 S.Ct. 2051, 85 L.Ed.2d 323 (1985) (defendant argued that the lack of an indictment for robbery as a separate offense indicated that the killing was not in the commission of a robbery, but the court held there was no need for the State to charge the underlying felony in order to prosecute for felony murder); Commonwealth v. Bastone, 466 Pa. 548, 553-54, 353 A.2d 827, 830 (1976) (State is not precluded from proving that the murder was committed during the perpetration of a robbery, even though the robbery is not mentioned in the indictment); Ross v. State, 308 Md. 377, 344, 519 A.2d 735, 738 (1987) (the charging document did not have to inform the accused of the specific theory on which the State would rely); State v. Johnson, 661 S.W.2d 854, 860 (Tenn.1983), aff'd, 698 S.W.2d 631 (Tenn.1985), cert. denied, 476 U.S. 1130, 106 S.Ct. 1998, 90 L.Ed.2d 679 (1986) (specification of felony in first degree murder indictment is unnecessary).

We note also regarding the issue of notice that, on the first day of trial, defense counsel presented a motion in limine to prevent the State from introducing any evidence that any robbery was committed of the victim. Mr. Bair [defense counsel]: Also, Your Honor, I would also make a motion in limine to prevent the State from introducing any evidence that any robbery...