State v. Crow

• Decision Date: 16 July 1969
• Docket Number: No. 1838,1838
• Citation: 457 P.2d 256,104 Ariz. 579
• Parties: STATE of Arizona, Appellee, v. Eugene L. CROW, Appellant.
• Court: Arizona Supreme Court

Page 256

457 P.2d 256

104 Ariz. 579

STATE of Arizona, Appellee, v. Eugene L. CROW, Appellant.

No. 1838.

Supreme Court of Arizona, In Banc.

July 16, 1969.

Gary K. Nelson, Atty. Gen., Carl Waag, Asst. Atty. Gen., for appellee.

Lewis, Roca, Beauchamp & Linton, by, Robert A. Jensen, Wood & Platt, by, William E. Platt, Jr., Phoenix, for appellant.

McFARLAND, Justice:

Eugene L. Crow, hereinafter referred to as defendant, was charged with and convicted of two counts of first-degree murder--the first on Darwin Parks, his father-in-law, and the second on David Parks, his brother-in-law. He was sentenced on each count to life imprisonment to run concurrently. He was charged and convicted of a third count of assault with intent to commit murder upon his wife, Brenda Parks Crow, for which he was sentenced to serve not less than ten years nor more than twelve years at the Arizona State Penitentiary, to run consecutively with the two murder counts. From the judgment and sentence of the court he appeals.

Defendant was married to Brenda Parks in October 1959. After living in California for a time they returned to Casa Grande, Arizona, in 1963, where defendant was employed at the local school. The Crows had one child, Sandra, who was six years of age at the time of the trial. They lived on a small farm on the outskirts of Casa Grande. Marital troubles developed in 1966, and on November 3d they separated. Defendant remained on the farm, and Brenda and the daughter lived with her parents. From the date of their separation until November 15th defendant practically every day tried to persuade his wife to return to him. On Tuesday, the 15th, they met at the farm, and, using two notes one of which purported to be a last will and testament, defendant threatened to take both their lives, as a result of which Brenda agreed to a reconciliation which never took place. From that date until the 19th--the date of the shooting--there were various meetings between defendant and his wife which resulted in the defendant's telling Brenda that he would not contest a divorce and agreed that she could come to the farm on Saturday to pick up her possessions, but that she was not to bring Sandra with her, as it would upset the child.

On Saturday morning about nine a.m. the defendant went to the Parks' home where he was met by his daughter whom he kissed, and talked briefly with Brenda. He had previously received a telephone call that some of the cattle had strayed, and he was on his way to round them up, but promised to return to the Parks' residence with Sandra's horse after he had rounded up the cattle at the farm. He returned the horse to Sandra later, and exchanged a few friendly words with Darwin Parks. He thereafter returned to the Parks' residence where he met David Parks, Brenda's brother, who was unexpectedly home from college. It was at that time that he told Brenda that they could come over and pick up her possessions.

After he returned to the farm, defendant watched television, opened a can of beer, and awaited the arrival of his wife and the Parkeses. According to his testimony, he remembered a gun which he had borrowed from his father to kill a dog. The gun was in a drawer with some of Brenda's clothing in a closet, and, in order to avoid trouble, he took it and placed it in a drawer of the television set.

When Brenda arrived, accompanied by her father, brother David, her mother Bonnie and daughter Sandra, he protested Sandra's presence, whereupon provocation between Darwin and him started. Darwin struck the can of beer defendant was holding from his hand, and told him 'If you mouth off I will knock your head off!' He also chastized Brenda for bringing Sandra. After some words Sandra was taken home by Brenda's mother. The facts which led up to the shooting are in conflict. Defendant testified that while the two women were at the car loading possessions Darwin and David began removing rods and drapery from the windows, and when defendant protested Darwin whirled and knocked him to the floor and started kicking him in the back and face. David joined in the fight, at which time defendant grabbed the gun from the drawer of the television set, and killed both of them when they again rushed him.

Defendant then ran outside and backed his car into the car in which Brenda and her mother Bonnie were driving away. The impact knocked the car in which Brenda and Bonnie were riding into a ditch. Defendant grabbed Brenda from the car and started beating her. Brenda's mother drove to a neighbor's house to call the police. Bonnie and Brenda testified that before the first shot was fired they had just emerged from the house, and that there had been no trouble before the first shot.

It is first contended by defendant that the court erred in excluding from the jury six persons who stated that they could not impose the death penalty under any circumstances--that the exclusion of those persons from the jury violated the rights of the defendant guaranteed under the Constitution of the United States, under the equal-protection clause of the Fourteenth Amendment and the Sixth Amendment, as applied to the due-process clause of the Fourteenth Amendment. Defendant cites Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, as supporting his position. We quote from the footnote, p. 1777, wherein it is stated:

'We repeat, however, that nothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would Automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's Guilt. Nor does the decision in this case affect the validity of any sentence Other than one of death. Nor, finally, does today's holding render invalid the conviction, as opposed to the sentence, in this or any other case.' (Some emphasis added.)

In Witherspoon, supra, and also in Bumper v. State of North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797, the United States Supreme Court held that Witherspoon only applies where the death penalty is imposed on the accused. We so held in State v. Madden, 104 Ariz. 111, 449 P.2d 39. The next question presented is of a much more serious nature. Defendant contends that the court erred in not granting the motion to sever the murder counts from the assault-with-intent-to-commit-murder count; defendant further contends that the court erred in permitting the wife to testify against the husband as to the murder counts. Defendant argues that he was compelled to take the stand, in view of his self-defense plea in the murder counts, and that the joinder forced him to also testify as to the assault count which he would not have done but for the joinder of counts.

Brenda testified in regard to the conversation which occurred when she and the Parkses had gone to get her possessions at the home. She testified that defendant had stated, in referring to Sandra:

'I told you that if you brought her out here you weren't going to get anything, so you might as well go on back.' Also that she said:

'A I told him that I was, that I am sorry, I had forgotten, and that I would ask mother to take her back into town.

'Q And what happened then, tell us the whole conversation that took place then?

'A When Gene came out of the door he was holding a beer can in his right hand. And he said, 'I told you if you brought her out here you weren't going to get a thing.' And Daddy walked over and he slapped the beer can out of Gene's hand and said, 'I am tired of all this. You two have been arguing for two weeks now, and it's gotten now to where--you asked us to come out and get the things, and if you don't want them, now you haven't got a thing we want in that house. Do you want us to come in and get the things or not?'

'Q What did Gene respond to this?

'A He said, 'I told that little slut if she brought Sandra out here she was not getting a thing."

She then stated that her mother took Sandra back to her grandmother's.

There was also testimony in regard to the threatening of Brenda's life, and the writing of the so-called will and testament and the suicide note which read:

'I'm sorry this had to happen, but I lost my wife and kids once before and I just can't take it again, and I'm not crazy. I just can't live without my family.'

Defendant contends that this and other testimony was highly damaging to him in the trial of the murder counts, and was not admissible, under § 13--1802, A.R.S. ¹, and that an instruction to the jury not to consider this evidence in the trial of the murder counts was not sufficient in that a jury would not be able to do so in the determination of the guilt or innocence of a defendant under such facts. Rule 128, Rules of Crim. Proc., 17 A.R.S., which permits separate trials, provides:

'RULE 128. Charging two or more offenses or same offense in different counts; consolidation; * * *

'B. * * * The court in the interest of justice and for good cause shown, may, in its discretion, order that the different offenses or counts set forth in the indictment or information be tried separately, or divided into two or more groups and each of the groups tried separately.'

Under this rule the court, in its discretion, must determine whether the trial of two or more counts jointly is prejudicial to a defendant; and, if so found, the court must order that they be tried separately. The contention of the defendant that the court should have severed the trial of the murder counts from that of the assault-with-intent-to-murder count upon Brenda was based upon the argument that Brenda was not entitled to testify against the husband on the murder counts. If this testimony...