State v. Cocio, 6232

• Decision Date: 07 November 1985
• Docket Number: No. 6232,6232
• Parties: STATE of Arizona, Appellee, v. Secundino COCIO, Appellant.
• Court: Arizona Supreme Court

Page 1336

709 P.2d 1336

147 Ariz. 277

STATE of Arizona, Appellee, v. Secundino COCIO, Appellant.

No. 6232.

Supreme Court of Arizona, In Banc.

Nov. 7, 1985.

Robert K. Corbin, Atty. Gen., William J. Schafer, III, Chief Counsel, Criminal Div., Jack Roberts, Asst. Atty. Gen., Phoenix, for appellee.

L. Anthony Fines, Robert Hirsh, Tucson, for appellant.

GORDON, Vice Chief Justice.

After a jury trial, defendant, Secundino Barcelo Cocio, was convicted of one count of manslaughter and one count of driving while under the influence of intoxicating liquor. The jury found the manslaughter charge to be dangerous and committed while defendant was on probation and also found that defendant had one prior conviction. Since defendant committed the dangerous manslaughter offense while he was on probation, the trial court sentenced defendant to life imprisonment pursuant to A.R.S. § 13-604.01 (renumbered A.R.S. § 13-604.02 May 16, 1985. However, the designation A.R.S. § 13-604.01 will be used in the remainder of this opinion). We have jurisdiction under Ariz. Const. art. 6, § 5(3) and A.R.S. § 13-4031.

On March 23, 1983, defendant's truck collided with a car, driven by Johnny Rodriguez, at the intersection of 44th Street and 10th Avenue in Tucson. A passenger in the Rodriguez vehicle was killed during the collision. Shortly after the accident, officers at the scene spoke with defendant and opined that defendant was driving while intoxicated. Thereafter, defendant was taken to Kino Hospital for treatment. While defendant was being treated, a hospital medical technician drew blood from defendant pursuant to a doctor's order. The police obtained some of this blood, which subsequent tests revealed to have a blood alcohol level of .28. A sample of defendant's blood was also tested by the hospital resulting in an alcohol level of .29.

Defendant raises several issues on appeal:

(1) Whether the trial court erred in failing to excuse a juror for cause.

(2) Whether the court erred in instructing the jury on causation.

(3) Whether the mandatory life sentence on the manslaughter charge violated the eighth and fourteenth amendments to the United States Constitution.

(4) Whether the warrantless seizure and testing of defendant's blood sample by the police violated the fourth amendment to the United States Constitution and article II, § 8 of the Arizona Constitution.

(5) Whether the trial court erred in admitting the results of a blood alcohol test performed by Kino Hospital.

I

Defendant argues that the trial court should have excused for cause venireman Goodman because she expressed strong feelings about people who drive while intoxicated.

VENIREMAN GOODMAN: "That's okay.

I have just some real strong feelings against drinking, drinking and driving, and I don't know whether--if that would interfere with this case or not."

Defense counsel made a motion to strike for cause venireman Goodman based on this statement.

The determination of whether to excuse a juror for cause is within the sound discretion of the trial court and should not be disturbed on appeal absent a clear showing A statement by a juror of strong feelings about a case or type of crime does not, without more, demonstrate that the juror is biased. State v. Caldwell, 117 Ariz. 464, 573 P.2d 864 (1977); State v. Brady, 66 Ariz. 365, 189 P.2d 198 (1948). We recognize that it is not unusual today for people to have strong feelings about drinking and driving because drunk driving has become a problem of epidemic proportions throughout the United States. See State v. Superior Court, 143 Ariz. 45, 691 P.2d 1073 (1984). Furthermore, the record of the voir dire proceeding reflects that Goodman could set aside her concerns and sit on a drunk driving manslaughter case impartially:

of abuse. State v. Reinhold, 123 Ariz. 50, 597 P.2d 532 (1979). To establish an abuse of discretion defendant must show that the juror was biased such that he or she could not render a fair or impartial verdict. State v. Rose, 121 Ariz. 131, 589 P.2d 5 (1978). We find no abuse of discretion for several reasons.

"THE COURT: Do you think you could sit with a fair and open mind?

VENIREMAN GOODMAN: Well, I don't know. Probably yes. I just--depends.

THE COURT: It's not a question of possible. We want Jurors who--

VENIREMAN GOODMAN: I don't know what it's about. I don't know. If it's robbery, it's very similar to the one that I was involved with, and maybe not, but then I don't know what this is.

THE COURT: The charge is--

VENIREMAN GOODMAN: I can't tell you whether it was or wasn't.

THE COURT: The charges are not robbery, and I can tell you that.

My next series of questions may involve that.

The charges are manslaughter and driving while under the influence of intoxicating liquor. Those are the two charges.

And I'll put the question to you again. Do you think you can sit with a fair and open mind?

VENIREMAN GOODMAN: Yes.

THE COURT: On that trial?

VENIREMAN GOODMAN: Yes." (emphasis added)

The trial court, after considering Goodman's entire voir dire examination, did not think she was biased. The trial court decides whether a juror's opinion is fixed and will influence her decision; that determination depends in large part upon the observation of a prospective juror's demeanor and tenor of her answers. State v. Munson, 129 Ariz. 441, 631 P.2d 1099 (App.1981). Since the trial judge has the opportunity to observe the jurors firsthand, he has a more immediate grasp of the jurors' feelings and can better assess the jurors' bias. See State v. Chapple, 135 Ariz. 281, 296, 660 P.2d 1208, 1224 (1983). The trial judge opined that Goodman's "strong feelings" were not so rigidly held to prevent the juror from fairly evaluating the evidence:

"THE COURT: And let the record indicate otherwise her emotional response was not accompanied by tears or jestures [sic] or anything--for the record, I'd like to say I don't think it was an emotional response or perhaps I would have questioned her further.

The motion at this time is denied." ¹

In this case, where the trial judge's decision appears to be rationally based, we will not substitute our judgment for hers. We find no abuse.

II

Defendant next argues that the trial judge erroneously gave the following "sole cause" instruction:

"The unlawful acts of two or more people may combine to cause the death of another. In order for the unlawful act Defendant complains that this "sole cause" instruction is inconsistent with the other instructions given, and that an instruction based on A.R.S. § 13-203(C)(2) should have been given sua sponte by the trial judge. We disagree. The instructions when read together, as they must be, are consistent. See State v. Bracy, 145 Ariz. 520, 703 P.2d 464 (1985) (instructions must be considered as a whole); Kinsey v. State, 49 Ariz. 201, 65 P.2d 1141 (1937) (accord).

of one such person to be a defense to the criminal liability of the other, the unlawful act of the one must have been the sole cause of death."

The proximate cause requirement is set out in the manslaughter instruction given by the trial court: The instruction on manslaughter (# 6) reads:

"A person commits manslaughter by recklessly causing the death of another person.

Recklessly causing the death of another person means that a person is aware of and consciously disregards a substantial risk that his conduct will result in the death of another person.

The risk must be such that disregarding it is a gross deviation from what a reasonable person would do in a situation.

It is no defense that a person who creates such a risk is unaware of it if the reason he is unaware of it is solely because of voluntary intoxication."

This instruction was derived from A.R.S. §§ 13-1103 and 13-105 and accurately defines manslaughter. The court also gave a general causation instruction (# 12) to the jury defining proximate cause, intervening cause and superseding cause.

"To warrant a conviction for manslaughter or negligent homicide the death must be the natural and continuous consequence of the unlawful act, and not the result of an independent intervening cause in which the accused does not participate, and which he could not foresee. If it appears that the act of the accused was not the proximate cause of the death for which he is being prosecuted, but that another cause intervened, with which he was in no way connected, and but for which death would not have occurred, such supervening cause is a defense to the charge of manslaughter or negligent homicide." (emphasis added)

This instruction accurately sets out the relevant causation principles in Arizona criminal cases. See State v. Hall, 129 Ariz. 589, 633 P.2d 398 (1981); State v. Powers, 117 Ariz. 220, 571 P.2d 1016 (1977). This causation instruction told the jury that if Rodriguez's act intervened to cause death and such act was not foreseeable by defendant, defendant's acts would not be the proximate cause of the death. Instead, Rodriguez's act would be the proximate cause of death and thus the sole legal cause of death, as the "sole cause" instruction required. The "sole cause" instruction merely required the jury to follow the general causation instruction (# 12) and find that defendant was not the proximate cause of death before he could be relieved of liability. Thus, these causation instructions are not contradictory or inconsistent.

Defendant's suggestion that the trial court should have instructed the jury pursuant to A.R.S. § 13-203(C)(2) is also meritless. A.R.S. § 13-203 reads in relevant part:

" § 13-203. Causal relationship between conduct and result; relationship to mental culpability

A. Conduct is the cause of a result when both of the following exist:

1. But for the conduct the result in question would not have occurred.

2. The relationship between the conduct and result satisfies any additional causal requirements imposed by the statute defining the offense.

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C. If recklessly or negligently causing a...