State v. Curry, s. 1

• Decision Date: 10 September 1996
• Docket Number: CA-CR,Nos. 1,s. 1
• Citation: 931 P.2d 1133,187 Ariz. 623
• Parties: STATE of Arizona, Appellee, v. Joe Christol CURRY, Appellant. 94-0617, 1 95-0056.
• Court: Arizona Court of Appeals

Page 1133

931 P.2d 1133

187 Ariz. 623

STATE of Arizona, Appellee, v. Joe Christol CURRY, Appellant.

Nos. 1 CA-CR 94-0617, 1 CA-CR 95-0056.

Court of Appeals of Arizona Division 1, Department C.

Sept. 10, 1996.

Review and Cross-Petition for

Review Denied Feb. 26, 1997.

[187 Ariz. 625] Grant Woods, Attorney General by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section, and Colleen L. French, Assistant Attorney General, Phoenix, for Appellee.

Dean W. Trebesch, Maricopa County Public Defender by Carol A. Carrigan, Deputy Public Defender, Phoenix, for Appellant.

OPINION

SULT, Judge.

Joe Christol Curry ("defendant") appeals from his convictions and sentences on one count of attempted second degree murder, two counts of sexual conduct with a minor, and one count of sexual abuse. For the following reasons, we vacate the conviction for attempted second degree murder and remand for a new trial. We affirm the remaining convictions and sentences.

FACTUAL AND PROCEDURAL BACKGROUND

For several years, defendant and his wife, Francine Curry, remained married but lived separately. They had six children together, the oldest of whom is their daughter, C, born in 1981. At some point in 1991 or 1992, C revealed to Francine that defendant had been "messing" with her. Francine did little or nothing in response to this and several subsequent disclosures of sexual misconduct, and defendant continued to have sexual relations with C. In July 1992, both Francine and C's maternal grandmother finally called Child Protective Services ("CPS") after Francine observed genital warts on C. A CPS case worker contacted Francine and two other family members, but did not interview C or defendant. CPS unaccountably took no other action at that time.

In September 1992, Francine brought C to the primary care facility of the Maricopa County Medical Center for treatment of C's asthma condition. During the examination the physician asked whether C was sexually active, and Francine responded, "Not with boys, but ... I found out her father's been messing with her." The following day, police interviewed C and learned details of defendant's sexual conduct with her. A police investigation ensued.

C and her siblings spent the night of November 21, 1992, at defendant's house where he had sexual intercourse with her. When defendant returned the children to Francine's apartment the following day, C told Francine what had happened. Wielding a kitchen knife, Francine confronted defendant in the front yard of the apartment complex. Defendant pulled out a gun and a struggle ensued during which Francine was shot in the chest and had her skull fractured. Francine did not die, however, and defendant was arrested and jailed.

On December 2, 1992, a Maricopa County grand jury indicted defendant for attempted second degree murder. On June 3, 1993, another grand jury indicted defendant for six counts of sexual conduct with a minor, two counts of sexual abuse, and one count of child molestation, all based on incidents involving C. The cases were consolidated and proceeded to a jury trial. With respect to the sex crimes, the state relied on testimony by C, her younger sister ("S"), physicians, a criminalist, police investigators, and an expert on Child Sexual Abuse Accommodation Syndrome. The testimony of Francine, C, some of Francine's neighbors and the investigating officers was offered to prove the attempted murder charge. Defendant testified and denied having any sexual contact with C. He also denied shooting or hurting Francine, although he admitted being nearby when she was shot. Defendant also relied on the defenses of alibi and good character.

The trial court dismissed the molestation count. The jury acquitted defendant on five of the remaining sex charges, but convicted him of attempted second degree murder, two counts of sexual conduct with a minor, and one count of sexual abuse. The trial court sentenced defendant to consecutive, aggravated sentences on each count, totalling seventy-six years imprisonment. Defendant timely appealed and this court has jurisdiction pursuant to Arizona Constitution, article VI, section 9 and Arizona Revised Statutes Annotated ("A.R.S") sections 12-120.21(A) (1992), 13-4031 (1989), and 13-4033 (Supp.1995).

ISSUES PRESENTED

Following the submission of this appeal, we requested supplemental briefing directed to whether, in Arizona, there is such a crime as attempted reckless second degree murder and, if not, whether it was fundamental error for the trial court to have instructed on such a crime. In its supplemental brief, the state has raised a question as to our jurisdiction to order such briefing. The state asserts that with the repeal of A.R.S. section 13-4035 (1989), which obliged us to search the record for fundamental error, this court no longer can require the parties to assist it in a search for fundamental error. Thus, the issues raised by the state, the court and defendant are:

1. Whether this court has jurisdiction to order supplemental briefing on an issue raised by the court;

2. Whether in Arizona there is a crime of attempted reckless second degree murder;

3. Whether the trial court properly admitted opinion testimony on "Child Sexual Abuse Accommodation Syndrome;"

4. Whether the trial court properly admitted opinion testimony by a physician who did not personally examine the victim;

5. Whether there was sufficient foundation to admit evidence pertaining to certain bullets;

6. Whether the trial court was within its discretion in amending the indictment to conform to the evidence;

7. Whether prosecutorial misconduct and judicial bias deprived defendant of a fair trial; and

8. Whether the trial court relied on inappropriate factors in aggravating defendant's sentence.

DISCUSSION

1. Jurisdiction to Order Supplemental Briefing.

We are at a loss to understand why the state would argue that when this court, on its own motion, notes an issue not addressed by the parties, it should not ask for assistance from the parties and thus give them an opportunity to be heard on the issue. The state does not argue, nor could it, that simply because we no longer have an obligation to search for fundamental error, we have no right to address such error when we see it. See A.R.S. § 13-4036 (1989) (On appeal from judgment of conviction, the supreme court "may ... make any order which is consistent with the justice and the rights of the state and the defendant."); United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936) ("In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity, or public reputation of judicial proceedings."). Yet the state's argument, if correct, would require us to resolve such an issue entirely on our own with no assistance from counsel and no opportunity for the parties to be heard on the issue.

The state has cited no authority in support of its argument. By the same token, we have not found a specific rule of court, statute, or case pronouncement which specifically authorizes us to order the parties to an appeal to submit supplemental briefing on an issue raised sua sponte by the court. Perhaps this is so because the state's argument runs so counter to notions of procedural due process and the status of counsel as officers of the court that no such rule has ever been thought necessary. In any event, we now hold that when an appellate court notes the possibility of fundamental error in a criminal proceeding, it may raise the issue on its own motion and order the parties to submit supplemental briefs addressing the issue.

2. Attempted Reckless Second Degree Murder.

In this case, the trial judge instructed the jury that it could convict defendant of attempted second degree murder if it found an attempt, as defined by A.R.S. section 13-1001(A) (1989), and any of the three culpable mental states of intentionally, knowingly or recklessly required by the second degree murder statute, A.R.S. section 13-1004 (1989). The jury did convict defendant of this charge pursuant to these instructions, and the verdict forms did not require the jury to indicate which mental state it had found. These circumstances triggered our inquiry into whether this conviction may have been based on a reckless mental state and, if so, whether there is such a crime in Arizona as attempted reckless second degree murder.

In State v. Adams, 155 Ariz. 117, 745 P.2d 175 (App.1987), we resolved whether attempted reckless manslaughter or attempted negligent homicide were cognizable offenses under our criminal code. We determined that in order to commit an "attempt" a defendant must have an intent to perform acts and to achieve a result which, if accomplished, would constitute the crime. Id. at 120, 745 P.2d at 178. Since "reckless" by definition necessarily involves an unintended result, we concluded that there was no such criminal offense in Arizona as attempted reckless manslaughter or attempted negligent homicide. Id.

We see no credible distinction between attempted reckless manslaughter and attempted reckless second degree murder in determining whether one can attempt to commit either crime. The added element in reckless second degree murder which raises it from reckless manslaughter is an extreme indifference to human life which creates a grave risk of death to another. State v. Walton, 133 Ariz. 282, 291, 650 P.2d 1264, 1273 (App.1982). This merely describes a higher quantum of recklessness, id., but does not change the critical fact that the culpable mental state is still that of "reckless." In other words, for a conviction of reckless second degree murder, no intent to achieve a result need be shown. Without such a requirement, there can be no attempt to commit such a crime. We therefore...