State v. Clayton

• Decision Date: 27 September 1973
• Docket Number: No. 2283,2283
• Citation: 514 P.2d 720,109 Ariz. 587
• Parties: The STATE of Arizona, Appellee, v. Kenneth CLAYTON and Herbert Penrod, Appellants.
• Court: Arizona Supreme Court

Page 720

514 P.2d 720

109 Ariz. 587

The STATE of Arizona, Appellee, v. Kenneth CLAYTON and Herbert Penrod, Appellants.

No. 2283.

Supreme Court of Arizona, In Banc.

Sept. 27, 1973.

Rehearing Denied Oct. 30, 1973.

Gary K. Nelson, Atty. Gen., Phoenix, by Howard L. Fell, Tucson, and Louis A. Moore, Jr., Asst. Attys. Gen., Phoenix, for appellee

Cohen, Gerst, Groseclose & Meissner by David A. Groseclose, Phoenix, for appellants; Ramon R. Alvarez, Douglas, of counsel.

CAMERON, Vice Chief Justice.

This is an appeal from jury verdicts and judgments of guilt as to each defendant to the crimes of burglary in the nighttime, § 13--302, subsec. B. A.R.S., with sentences thereon of from 14 to 15 years; and first degree murder, § 13--452 A.R.S., with sentences of death.

Omitting the questions concerning the death penalty which have been disposed of by the United States Supreme Court cases of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) and Stewart v. Massachusetts, 408 U.S. 845, 92 S.Ct. 2845, 33 L.Ed.2d 744 (1972), we are called upon to answer the following questions on appeal:

1. Was there error in the empaneling and qualification of the jury?

2. Were the defendants denied their right to a public trial where the courtroom door was locked during a part of the voir dire of the jury?

3. In a prosecution for felony murder where there is evidence that the defendants had abandoned the felony of burglary and were surrendering should the trial court have instructed the jury on second degree murder and manslaughter?

4. Was it error for the court to fail to declare a mistrial when the County Attorney impeached his own witness?

5. Were defendants' constitutional protections against double jeopardy violated where, at the close of the State's case, a count alleging first degree murder was stricken on motion of the prosecutor leaving for the jury the separate count alleging murder under the felony-murder rule?

6. Was it error for the court to have failed to instruct the jury that if the felony of burglary had been abandoned or terminated or that the defendants were attempting surrender then the felony-murder rule had no application?

7. Was it error to give the 'stipulated instruction' on the grounds that it constituted a comment on the evidence and did not correctly state the law with reference to self-defense?

8. Was it error for the trial court to deny the motion in arrest of judgment on Count I, burglary, under the doctrine of collateral estoppel?

9. Was it error to submit 3 forms of verdict as to the murder charge?

10. As to the defendant Clayton: Was Clayton coerced to testify on his own behalf?

11. As to the defendant Penrod:

(a) Was there corroboration of either accomplice to support the conviction of the defendant Penrod?

(b) Was it reversible error to refuse the motion of the defendant Penrod for a separate trial?

The facts necessary for a determination of this matter on appeal are as follows. On the evening of 3 October 1970, the defendant, Herbert Penrod, drove to the residence of Richard Evans in Sierra Vista, Arizona, picked him up, and from there they went to the residence of the defendant Kenneth Clayton in Benson, Arizona. The three had previously met as members of a motorcycle club called 'The Soul Sinners.' The three evidently decided to burglarize 'I remember thinking that the shot had come from outside through the window. He felll backwards, grabbing his head, and I could see blood starting to run down his forehead. He said, 'He shot me' or 'He got me', I don't recall the exact words, and then turned.'

some establishment although they had no particular place in mind. Taking burglar tools, a pistol, and a shotgun, they drove from Benson on U.S. Highway 80 to the area of Bisbee and Lowell, Arizona, and then took Highway 92 back toward Sierra Vista, Arizona. After traveling several miles they passed a restaurant known as 'The Brite Spot' which is located approximately halfway between Bisbee Arizona, and Sierra Vista, Arizona. They noticed at that time a Volkswagen parked in front of 'The Brite Spot' and continued on for a short distance and then returned to the area and noticed that the Volkswagen was gone. They concealed their automobile on a side road which led to the home of Robert Cline, Sr., the decedent, who was also the owner of 'The Brite Spot.' They succeeded in opening the back door of 'The Brite Spot' with a crowbar and entered the kitchen area. A silent burglar alarm went off in the home of Robert Cline, Sr., who lived about a quarter of a mile away. Robert Cline, Sr., called the Cochise County Sheriff's Office and together with his son-in-law, both armed, drove toward 'The Brite Spot' with their lights out. Because the lights were out their car became stuck in a cattle guard and they then proceeded to 'The Brite Spot' on foot. Cline covered the back while the son-in-law covered the front of the building. Cline called to the burglars to come out and, according to the testimony of the codefendant Evans, the defendant Clayton started to the door with a shotgun in his right hand and with his hands over his head. As he came out the door there was a gun blast and Clayton fell and stumbled back into the kitchen. The testimony of Richard Evans continued:

After the defendant Clayton was struck by the blast, evidently from Robert Cline's shotgun, Clayton then fired at Cline. Cline fired again and Clayton fired a second time. At this point the defendants observed a car rapidly approaching and fled from the building to their car parked by a nearby dump. The car would not start and they fled on foot. They were apprehended the following day having been followed from the scene of the crime. Robert Cline, Sr., was found dead outside of 'The Brite Spot.'

The three defendants were charged with Count I, burglary in the first degree, § 13--302, subsec. B A.R.S.; Count II, first degree murder, §§ 13--451 and 13--452 A.R.S.; Count III, murder under the felony-murder rule, § 13--452 A.R.S. Count II was stricken upon motion of the County Attorney at the close of the State's case. The defendant Evans testified on behalf of the State in return for being allowed to plead guilty to burglary and manslaughter. Penrod and Clayton were tried jointly.

The jury found both defendants guilty of Counts I and III and assessed the death penalty as to Count III. Both defendants appealed.

EMPANELING THE JURY

Defendants first contend that it was error for the court to deny challenges or, in absence of challenges, upon its own motion to fail to dismiss for cause 11 of the jurors passed.

The law in Arizona concerning the disqualification of jurors has been stated as follows:

'A prospective juror may be disqualified if he is biased for or against defendant § 21--211, subsec. 4, if he holds an unqualified opinion, Rule 218, or if his opinion will prevent him from acting with entire impartiality Rule 219, subsec. 13. If his opinion is based upon rumor or news reports about the truth of which he has expressed no opinion, he is competent to be a juror if he swears he can fairly render a verdict and the court is satisfied of the truth of such statement. Rule 220. (footnote omitted)

'A prospective juror need not be disqualified unless his opinion is unqualified. Such an opinion is defined as a fixed, settled and abiding conviction as to the guilt or innocence of the defendant. Where the opinion is less strong it is qualified and the court will inquire into its strength and the information upon which it is founded. That the juror will carry an opinion into the jury box or that it will take evidence to remove it are not, in themselves, grounds for disqualification. Leigh v. Territory, 10 Ariz. 129, 85 P. 948. Cf. Stephens v. State, 20 Ariz. 37, 176 P. 579. This court has also held that a disqualifying opinion must be, not merely that, if what the juror has heard is true a certain conclusion as to the guilt or innocence of the defendant necessarily follows, but that what he has heard is true as a matter of fact, and that such belief as to its truth would follow him into the jury box and would be considered by him in determining the verdict he would return. Burnett v. State, 34 Ariz. 129, 268 P. 611. The trial court decides during the voir dire whether a juror's opinion is fixed and will influence his decision. The determination depends, in large part, upon an observation of the prospective juror's demeanor and the tenor of his answers. Therefore, we have long held that a ruling upon a motion challenging a juror for bias or partiality is left largely within the sound discretion of the trial court whose decision will not be overturned in the absence of a clear showing of an abuse of that discretion. State v. Brady, 66 Ariz. 365, 189 P.2d 198. * * *' State v. Narten, 99 Ariz. 116, 122, 407 P.2d 81, 85 (1965), cert. den. 384 U.S. 1008, 86 S.Ct. 1985, 16 L.Ed.2d 1021 (1966).

Absent a challenge for cause we will not consider upon appeal the failure of the court, on its own motion, to dismiss a juror for cause unless it is such an abuse of discretion as to constitute fundamental error. § 13--1715 A.R.S.; State v. Burrell, 96 Ariz. 233, 393 P.2d 921 (1964).

Early in the jury selection process the trial court stated as follows:

'THE COURT: I might indicate to the entire jury that we do have a number of problems in connection with this case. That we do not have a large number of jurors available and it is for that reason that the Court has some reluctance in excusing you in this particular case. I just wanted to let you know that normally, almost any reason has been accepted by the Court for excusing you. It is because of the limited number that we have available in this case that the Court does have some reluctance in excusing you.'

We have gone over the selection of the jury paying particular attention to all the jurors the defense contends on appeal should not have been passed for cause. Jurors numbered 5, 16, 20, 30,...