State v. Coey

• Citation: 309 P.2d 260,82 Ariz. 133
• Decision Date: 19 March 1957
• Docket Number: No. 1082,1082
• Parties: STATE of Arizona, Appellee, v. Leonard COEY, Appellant.
• Court: Supreme Court of Arizona

Page 260

309 P.2d 260

82 Ariz. 133

STATE of Arizona, Appellee, v. Leonard COEY, Appellant.

No. 1082.

Supreme Court of Arizona.

March 19, 1957.

Arthur M. Johnson and Robert E. Yount, Phoenix, for appellant.

Robert Morrison, Atty. Gen., and L. Alton Riggs, Sp. Asst. Atty. Gen., for appellee.

LA PRADE, Justice.

The defendant-appellant, Leonard Coey, was convicted of the crime of murder in the first degree and sentenced to be executed. From the judgment and sentence he has perfected this appeal.

There is no significant dispute as to the events which led up to, and included, the alleged crime. The facts briefly stated are as follows: The deceased victim was the wife of the defendant. She was approximately half his size, and about half his age. She was employed and he was not. She had filed for divorce against the defendant, and the court had issued the usual 'restraining order and order to show cause' directing, among other things, that he leave the family abode forthwith. Defendant's first knowledge of this was on the morning of January 27, 1955, when a process server appeared at the home and made service upon him. He testified that he had made preparation to leave but was reluctant to do so because he felt that he should remain with his children to protect them from his wife. In the early afternoon of the same day the defendant and his wife entered a small shed at the rear of their home, and while there the defendant mortally wounded his wife with a .45 caliber revolver which he had obtained for the claimed purpose of protecting his children from anticipated assaults by his wife. He then loaded her body in his automobile, drove to the Maricopa County Sheriff's office, where he announced that he had a dead woman in the car, and while there he pulled her body out of the automobile to the ground and stated 'there is the son-of-a-bitch. She tried once too often to kill me and my kids'.

Defendant freely gave a statement setting forth the above events but claimed that while he and his wife were in the shed the wife attacked him with a hammer and he then shot her. Defendant continued to maintain this theory of 'self-defense' throughout the trial, although it was by no means supported by the evidence, and, at his insistence, his attorneys presented such defense. His attorneys at the same time urged, over his violent objections, the defense of insanity. The defendant's counsel conceded that except for the issue of insanity the jury might well have found from the evidence that the defendant committed murder in the first degree.

The appellant presents eight assignments of error, each of which is separagely considered herein.

Under assignment No. 1 appellant contends that the jury was erroneously instructed on the matter of 'partial insanity', on the ground that there was no evidence upon which such instruction could be predicated. The issue of insanity was in the case at the instance of the defendant. Testimony on this issue was introduced, including both lay and expert testimony. The instruction assailed is in substance the same as that approved by our court in State v. Macias, 60 Ariz. 93, 131 P.2d 810, and in State v. Eisenstein, 72 Ariz. 320, 235 P.2d 1011. It is consistent in all respects with the basic test of insanity generally applied in criminal cases, namely, whether the party accused possessed the ability to distinguish right from wrong at the time of the commission of the alleged crime. State v. Macias, supra; Burgunder v. State, 55 Ariz. 411, 103 P.2d 256. The term 'partial insanity' referred to and defined in this instruction is merely explanatory of the basic test hereinabove set forth. The instruction when viewed in the light of the basic test explained the type of insanity which would relieve the defendant from the consequences of his act, in language simple and readily understood by the jury. It was, therefore, a proper instruction on the issue of insanity.

In assignment of error No. 2 it is contended that a statement made to the jury by the county attorney, to the effect that if their verdict were life imprisonment rather than death, the defendant would be imprisoned for only a few years, constitutes reversible error based upon resulting prejudice. Such comment is permissible in this jurisdiction. State v. Jordan, 80 Ariz. 193, 294 P.2d 677; State v. Macias, supra. In the latter case the rule was set forth that in first degree murder cases, where the jury has discretion to fix the penalty at either death or life imprisonment, it is proper for the jury to consider the probability that the defendant will actually serve the penalty should they determine the sentence to be life imprisonment. In accord with this rule it was held that the county attorney's statement alluding to such probability did not constitute error. We are apprised of no substantial reason for departing from the holding of that case, and, therefore, find that the comparable comment made in the case before us was not error.

Under assignment No. 3 appellant asserts that failure of an expert, appointed by the court pursuant to Rule 305, Criminal Procedure, section 44-1702, A.C.A.1939; omitted from Rules of Criminal Procedure effective January 1, 1956, to testify, where the appointive order was not vacated, constitutes reversible error. Court rules, like statutes, must be construed in the light of the purpose for which they were adopted. Collins v. Superior Court, 48 Ariz. 381, 62 P.2d 131; DeCamp v. Central Arizona Light & Power Co., 47 Ariz. 517, 57 P.2d 311. In State v. Cassady, 67 Ariz. 48, 190 P.2d 501, 506, we said:

'Our rules of criminal procedure should be construed so as to promote justice-not to thwart it. * * *'

The latter portion of Rule 305, supra, provided that:

'* * * The experts appointed by the court shall be summoned to testify at the trial and shall be examined by the court and may be examined by counsel for the state and the defendant.'

It cannot be seriously constended that under this rule it was intended that the burden of summoning experts to testify be cast upon busy trial courts already overburdened; the obvious purpose of the rule was to insure that qualified experts would be available if they were needed by either party, to testify on the issue of insanity under circumstances where the defendant has announced his intention to rely upon this defense. This being its purpose we find the above-quoted portion of the rule was directory rather than mandatory. It was, therefore, discretionary with counsel whether the expert appointed pursuant to this rule should be called, and, therefore, his failure to testify did not constitute error.

Appellant next complains in the assignment of error No. 4 that he was prejudiced by the non-availability of his children to testify in his behalf. In this respect he claims the court was derelict in failing to make provision for the presence of the children during the course of the trial. The children had been made wards of the court, placed in the custody of the County Department of Public Welfare, and ordered sent to the home of relatives in another state, such action being deemed proper for their best interests. After commencement of the trial subpoenas were served both upon the juvenile judge and the director of the Welfare Department, commanding these officials to produce the children at the trial; each was returned with a notation to the effect that the children would not be present. It is primarily the responsibility of the parties and not the court to insure that witnesses are present at the time of trial. When it appears in a criminal proceeding that an action cannot be justly tried without the testimony of certain witnesses who cannot be present at the time scheduled for trial, the court has discretionary authority to, upon proper application, grant a continuance. Rules of Criminal Procedure, sections 295 et seq. (sections 44-1603 et seq., A.C.A.1939, now Rule 241 et seq., Rules of Criminal Procedure effective January 1, 1956, 17 A.R.S.). Under such circumstances the application must, among other things, state facts showing that due diligence has been exercised to obtain the witnesses. Rules of Criminal Procedure, section 298 (section 44-1606, A.C.A.1939, now Rule 244, Rules of Criminal Procedure, effective January 1, 1956). In the instant case the defendant made no application for a continuance, and the court, therefore, was not called upon to exercise its discretion. As a consequence the absence of the prospective witnesses presents no valid basis for appeal.

Under the fifth assignment appellant insists that the trial court erred in permitting lay witnesses to testify as to opinions they entertained relative to his sanity, since, he contends, no proper foundation was laid therefor. In the light of the record before us this assignment is clearly without merit. The rule is well settled in this jurisdiction that in cases of this kind the testimony of a lay witness who has had an opportunity to observe the past conduct and history of a defendant is as admissible on the issue of whether he was legally insane at the time he committed the criminal act as that of a medical witness. State v. Macias, supra; State v. Voeckell, 69 Ariz. 145, 210 P.2d 972. The fact that he is a lay witness goes not to the admissibility of the testimony but rather to its weight. Therefore, the only foundation which need be laid to qualify such lay witness to testify on this issue is that he has had an opportunity to observe the defendant, as provided in this rule. The record in the instant case reflects undisputably that a foundation in strict compliance with the above rule was established in each instance where a layman was called upon to render an opinion as to the sanity of the appellant.

Appellant's sixth assignment of error is based on the ruling of the trial court in refusing to permit a witness to give his conclusion as to the attitude of the children of defendant at a time...