State v. Childs

• Decision Date: 06 August 1976
• Docket Number: No. 3132,3132
• Citation: 113 Ariz. 318,553 P.2d 1192
• Parties: STATE of Arizona, Appellee, v. Mack Gay CHILDS, Appellant.
• Court: Arizona Supreme Court

Page 1192

553 P.2d 1192

113 Ariz. 318

STATE of Arizona, Appellee, v.Mack Gay CHILDS, Appellant.

No. 3132.

Supreme Court of Arizona, In Banc.

Aug. 6, 1976.

Bruce E. Babbitt, Atty. Gen., William J. Schafer, III, Chief Counsel, Crim. Div., Thomas A. Jacobs, Asst. Atty. Gen., Phoenix, for appellee.

John M. Neis, Pima County Public Defender, Jeffrey D. Bartolino, Asst. Public Defender, Tucson, for appellant.

GORDON, Justice:

Appellant, Mack Gay Childs, was found guilty by a jury of first degree murder, sentenced to life imprisonment and appeals from the judgment of conviction and the order denying a new trial.We take jurisdiction pursuant to Arizona Constitution, Art. 2 § 24 and Art. 6§ 5andA.R.S. § 13--1711.

Appellant sets forth seven assignments of error which we have reduced to the following: first, the evidence was insufficient to justify the verdict of first degree murder, second, the jury was misdirected as to the law; third, the prosecutor's closing remarks were so prejudicial as to constitute reversible error; and fourth, the court erred in denying appellant's motion for a new trial based upon jury misconduct.We find no reversible error and affirm the judgment and sentence.

Appellant first urges that the evidence was insufficient as a matter of law to justify the verdict of first degree murder.The appellate court in reviewing the sufficiency of the evidence is 'only concerned with whether there is substantial evidence in support of the verdict.* * * Reversible error occurs when there is a complete absence of probative facts to support the conclusion.'State v. Miller, 16 Ariz.App. 96, 491 P.2d 485(1971).Further, the evidence will be considered in the light most favorable to the State and all reasonable inferences will be resolved against the defendant.State v. Verdugo, 109 Ariz. 391, 510 P.2d 37(1973).The facts of this case present substantial evidence from which a jury could reasonably find the required elements of malice, premeditation and deliberation in order to support its finding of first degree murder.

The homicide occurred on August 5, 1974, at approximately one o'clock in the morning in the trailer in which the appellant, the decedent, Merle Slayton who was his common-law wife, and her ten year old daughter, Brenda Slayton, lived.

The evidence showed that during the day of August 4, 1974appellant, decedent and Brenda had gone to Sahuarita to look at a trailer home for Merle's mother.Appellant and decedent quarrelled over whether the purchase price was reasonable.Around seven in the evening they took Brenda to the roller skating rink and apparently had ceased quarrelling.During the day and on into the night the couple consumed great quantities of beer.Brenda testified that the couple was no longer quarrelling when they picked her up at the roller skating rink and that she went to bed around eleven.

The appellant at trial testified he loaded his rifle that night as he routinely did every night, and that when he followed Merle into the bedroom the bolt slipped as he was lowering it, and the rifle discharged accidentally.This testimony was in conflict with earlier stories told to an arresting law enforcement officer and to a neighbor.

After the shooting appellant went to the trailer of Mr. and Mrs. Williams and requested that they telephone the police because he had shot and killed Merle.Mrs. Williams testified that the appellant stated to her that Merle was 'riding' him and he did not know why he killed her.When the appellant and Mr. Williams went to the trailer to take Brenda Slayton over to the Williams' trailer Mr. Williams found the decedent's body on the floor completely covered with a blanket.In response to Mr. Williams' question the appellant stated that the killing was an accident.He then ejected an unexpended cartridge from the rifle and handed it to Mr. Williams.This cartridge had a partial firing pin impression on it.

There was evidence that the decedent might have bent down in an attempt to protect herself and expert testimony that she lived and was conscious for fifteen to thirty minutes after she was shot.There was additional expert testimony that the partial firing pin impression probably was caused by an attempt to fire the rifle a second time.Brenda Slayton also testified to a prior shooting incident.Approximately two and a half months earlier, as Merle was holding Brenda on her lap, appellant shot in her general direction.

Though much of the testimony was disputed, more than sufficient evidence existed to sustain the jury's verdict.On appeal this court will not substitute its judgment for that of the jury.Moore v. State, 65 Ariz. 70, 174 P.2d 282(1946);State v. Tuttle, 58 Ariz. 116, 118 P.2d 88(1941).

Appellant next urges that an instruction given by the court constituted fundamental reversible error.The instruction was the Recommended Arizona Jury Instruction Crimes #4 and was given as follows:

'Murder is the unlawful killing of a human being with malice.

'The thing that distinguishes murder from all other killings, is malice.There are two kinds of malice.A person has one kind of malice when he deliberately intends to kill.If you determine that the defendant used a deadly weapon in the killing, you may find malice.If you determine that the defendant has no considerable provocation for that killing, you may find malice.

'There is also a second kind of malice.A person has this kind of malice if he shows a reckless disregard for human life.

'Once you have determined that there is malice, you must determine whether murder was in the first or second degree.First degree murder is murder which is the result of premeditation.'Premeditation' means 'decided in the mind beforehand.'It does not matter how quickly or slowly the decision to kill is followed by the act of killing.'

Appellant contends that since the instruction contains a definition of express malice (intentional killing) and a definition of implied malice (reckless disregard for human life) the jury could use implied malice to find first degree murder.We do not agree.

' Both express and implied malice will support a conviction of murder.'State v. Magby, (No. 3112, filed July 20, 1976).The fact that the jury finds that the element of malice exists means only that the jury has made a determination that the unlawful killing amounts to murder.If the jury only finds that the killing was with malice, either express or implied, and nothing more, then the correct determination would be second degree murder.However, it is the finding that the murder, classified by the means used (poison, lying in wait, torture), or by the fact that the killing was done in the perpetration or attempt to perpetrate certain felonies, or by the fact that the evidence shows that the killing was the result of a willful, deliberate and premediated act that justifies the determination that the murder was of first degree.This instruction adequately distinguishes between first and second degree murder.

Appellant contends that the court erred in defining implied malice as a reckless disregard for human life because this definition is equivalent to an instruction that gross negligence equals malice.This court has held that this is a proper instruction.State v. Kelly, 112 Ariz. 468, 543 P.2d 780(1975).

Appellant urges that it was error to instruct on the presumption of malice when a deadly weapon is used without stating that this presumption arises only if the jury finds no circumstances of mitigation, justification or excuse.While it would have been better if the instruction had included language to the effect that the jury should find no circumstance of justification, mitigation or excuse before they could find an inference of malice from the use of a gun or other deadly weapon, we do not find reversible error for the failure of the trial court to have so instructed.We have held that 'use of a deadly weapon such as a gun, standing alone, is sufficient evidence from which the jury may find malice.'State v. Duke, 110 Ariz. 320, 518 P.2d 570(1974).The R.A.J.I. correctly states the elements of murder as the unlawful killing of a human being with malice.An unlawful killing, by implication, could not be a justifiable or excusable killing.Further, when the jury agreed upon a verdict of first degree murder they first had to find malice and then, under the facts of this case, had to find that the appellant's decision to kill was 'decided in the mind beforehand.'These elements clearly preclude an accidental killing which does not involve a decision to kill.

Appellant next contends that the instruction on first and second degree murder is erroneous in that it neither mentions nor defines 'wilful' and 'deliberate' since both 'wilful' and 'deliberate' are included in the statutory definition of murder in the first degree.(A.R.S. § 13--452).We do not agree with this contention.

We hold that the elements of wilfulness and deliberation are implied in the element of premeditation."Deliberation' connotes an intentional killing.'State v. Schroeder, 95 Ariz. 255, 389 P.2d 255(1964).This instruction addresses itself to a decision to kill that is made prior to the act of killing.The formation of such a decision is the element of deliberation required for a finding of first degree murder.Moreover this instruction does not place undue emphasis upon the rapidity with which premeditation could occur, only that the premeditation need not be prolonged.This is in accord with previous holdings of this court.State v. Moore, 112 Ariz. 271, 540 P.2d 1252(1975).This instruction...