State v. Beers

• Decision Date: 10 December 1968
• Docket Number: CA-CR,No. 1,1
• Citation: 8 Ariz.App. 534,448 P.2d 104
• Parties: The STATE of Arizona, Appellee, v. Ray Laroyce BEERS, Appellant. 178.
• Court: Arizona Court of Appeals

Page 104

448 P.2d 104

8 Ariz.App. 534

The STATE of Arizona, Appellee, v. Ray Laroyce BEERS, Appellant.

No. 1 CA-CR 178.

Court of Appeals of Arizona.

Dec. 10, 1968.

Rehearing Denied Jan. 2, 1969.

Review Denied Feb. 4, 1969.

Gary K. Nelson, Atty. Gen., by Carl Waag and James S. Tegart, Asst. Attys. Gen., for appellee

Rawlins, Ellis, Burrus & Kiewitt, by Chester J. Peterson, Phoenix, for appellant.

DONOFRIO, Judge.

This is an appeal from the judgment pronounced following the verdict of a jury finding defendant guilty of the crime of manslaughter, A.R.S. § 13--455 and § 13--456.

On Saturday morning, July 29, 1967, defendant was tending his foster son at the family residence. The seventeen-month-old child began to cry and defendant shook him to try to quiet him. As defendant shook the infant, the baby's head dropped to defendant's chest and the child stopped breathing. Defendant thereupon took the child to a nearby fire station where a Although there were no witnesses to the shaking, and the defendant himself did not testify, he made several remarks to a fireman and a social worker. These remarks include statements that he had shaken the child immediately before the child went into a coma. He told the social worker that he had shaken the child several times prior to this. It was the testimony of all the medical experts that the infant had died from cerebral edema and that such a condition might have been the result of a severe shaking or a series of shakings.

resuscitator was used. The child was rushed to a hospital where he later died.

The following questions are presented for review:

1. Was the evidence in this case sufficient to establish that the death of the child resulted from any act of the defendant?

2. If so, was the death an excusable homicide?

3. Did the court err in its instructions to the jury?

4. Was the County Attorney guilty of misconduct in his argument to the jury?

5. Was there prejudicial error in admitting in evidence two photographs of the bruised, nude body of the deceased?

SUFFICIENCY OF EVIDENCE

What is an appellate court's position in determining the sufficiency of evidence in a criminal conviction? There must be a complete absence of probative facts to substantiate the verdict in order for this Court to reverse on the grounds of insufficient evidence. If reasonable men might differ as to the existence of certain facts, then there is sufficient evidence to sustain a jury's verdict. State v. Bearden, 99 Ariz. 1, 405 P.2d 885 (1965).

The state has the burden of proof in all criminal cases. Whether the case against the defendant is based upon circumstantial evidence or direct evidence, the degree of proof remains the same, and that degree is that the persuasion must be beyond a reasonable doubt. A.R.S. § 13--162; State v. Ferguson, 77 N.M. 441, 423 P.2d 872 (1967). while the burden of proof remains the same, the introduction of circumstantial evidence creates a fact situation for the jury to resolve with a proper instruction regarding the quality of circumstantial evidence necessary to sustain a finding of guilty.

Defendant contends that there was not sufficient evidence to establish that he was responsible for any act which caused the condition resulting in the death of the child. He points out that the circumstantial evidence failed because it does not 'exclude every reasonable hypothesis of innocence'. This is the correct test when the state is relying solely on circumstantial evidence. The State, however, is not relying solely on circumstantial evidence in this case.

In the case of State v. Green, 103 Ariz. 211, 439 P.2d 483 (1968), our Supreme Court had before it a case where the defendant contended that the verdict of guilty against him was based solely upon circumstantial evidence and was not inconsistent with every reasonable hypothesis of innocence. In that case the court held:

'We have consistently held in the past that because of the dangers that lurk in a conviction based solely on circumstantial evidence an instruction must be given to the jury that the 'evidence must not only be consistent with guilt but inconsistent with every reasonable hypothesis of innocence." 439 P.2d 483 at page 484.

The instruction discussed in State v. Green, supra, was not given in the instant case. There is no evidence of a request for such an instruction, and if there was such a request defendant has failed to include the instruction in haec verba in the appendix to his brief, pursuant to Rules 15 and 5(b)(10) of the Supreme Court, 17 A.R.S. Zakroff v. May, 8 Ariz.App. 101, 443 P.2d 916 (1968); Dykeman v. Ashton, 8 Ariz.App. 327, 446 P.2d 26 (decided October 17, 1968).

Since the defendant was not convicted on circumstantial evidence alone, but also on The Arizona Supreme Court has stated:

direct evidence of admissions made by defendant to various persons, we do not consider failure to give this instruction such fundamental error as to require a reversal. We are not suggesting, however, that on a retrial the instruction be not given.

'* * * We said in State v. Daymus, 90 Ariz. 294, 306, 367 P.2d 647, 655:

"The weight of authority is that the court on its own motion is under a duty to give proper instructions as to the effect of circumstantial evidence If the prosecution must rely exclusively on circumstantial evidence to convict." (Emphasis supplied) State v. Tigue, 95 Ariz. 45, 47, 386 P.2d 402, 404 (1963).

It is the law that confessions and admissions of the accused are direct evidence. State v. Maynard, 101 Ariz. 239, 418 P.2d 576 (1966); State v. Daymus, 90 Ariz. 294, 367 P.2d 647 (1961). In both the Maynard and Daymus cases the courts refused to find error for failure to give a circumstantial evidence instruction sua sponte.

This Court finds there is sufficient evidence to sustain a guilty verdict, and there is sufficient direct evidence to negate the giving of the circumstantial evidence instruction sua sponte.

EXCUSABLE HOMICIDE

A.R.S. § 13--460 provides:

'Homicide is excusable when:

'1. Committed by accident and misfortune, or in doing a lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent.'

Defendant's only witnesses were five parents who testified that shaking a child was proper discipline. Even if this evidence could be considered sufficient to show that defendant's actions were lawful, they did not shed any light as to whether defendant's actions at the time in question were with usual and ordinary caution. It is the trier of fact who determines if the acts of the accused were done with the usual and ordinary caution. There was sufficient testimony to substantiate a finding by the jury that the deceased was shaken with such severity as to fall within the criminal prohibitions of A.R.S. § 13--455 and § 13--456 and outside the ambit of A.R.S. § 13--460.

IMPROPER INSTRUCTIONS

The defendant states that the court erred in refusing to give his requested instruction when instructing on excusable homicide. Defendant's requested instruction read as follows:

'In this connection, you are instructed that the word 'accident' used in this statute, is used in its general sense and meaning, and when so used to express a result produced by human action, is understood to mean a thing done or disaster caused or produced without design or intention.'

This is a correct restatement of the law, and is almost verbatim from Stokes v. Territory, 14 Ariz. 242, 127 P. 742 (1912). We feel that absence of such instruction is not such error as to require a reversal.

Where the word to be defined is a word of ordinary significance, it is not required that the court define the term in the instruction. State v. Perry, 5 Ariz.App. 315, 426 P.2d 415 (1967). We can presume that the word 'accident' is so common that its meaning is well understood by any jury of ordinary intelligence.

MISCONDUCT OF PROSECUTOR

During the course of the final argument to the jury the deputy county attorney stated the following:

'Well, Jamie Boyett is not here to tell us what happened in the days and the weeks before this horrible occurrence.

'As I recall the evidence, he was just beginning to speak, and he could say a few words. Well, he never has had an opportunity to speak and never will.

'And if you recall, during all the evidence in this case, the defendant has had 'Jamie Boyett has no one.'

his family and his friends sitting behind him, behind him all the way, interested in the outcome of this matter.

The defendant states that these remarks were calculated to inflame the minds of the jurors so that their verdict would be the result of passion or prejudice or influence. The defendant is correct in that this is the test as to whether or not remarks are improper and require a new trial. State v. Merryman, 79 Ariz. 73, 283 P.2d 239 (1965). However, as pointed out in the Merryman case:

'The general rule is that whether or not improper argument in a criminal case has influenced the verdict must be left to the sound discretion of the trial court on motion for a new trial. Hoy v. State, 53 Ariz. 440, 90 P.2d 623; State v. White, 56 Ariz. 189, 106 P.2d 508. If there has been no abuse of that discretion and it appears that substantial justice has been done the court will not reverse the judgment. * * *' 79 Ariz. at pages 74, 75, 283 P.2d 239 at page 241.

We feel that the prosecutor's statements are not such as to cause this Court to reverse the lower court for abuse of discretion. These remarks, although they may be borderline examples, do fall within the wide latitude approved by the Arizona Supreme Court.

ADMISSION OF PHOTOGRAPHS

The deputy county attorney introduced two pictures of the deceased child. The pictures showed his nude corpse with bruises visible all over his body. The purpose of the deputy county attorney in introducing the photographs was apparently two-fold: first, to identify the deceased, and second, to show the manner and method of death. The court...