State v. Dickey, 4109

• Decision Date: 25 February 1980
• Docket Number: No. 4109,4109
• Citation: 608 P.2d 302,125 Ariz. 163
• Parties: STATE of Arizona, Appellee, v. Thurman Laverle DICKEY, Appellant.
• Court: Arizona Supreme Court

Page 302

608 P.2d 302

125 Ariz. 163

STATE of Arizona, Appellee, v. Thurman Laverle DICKEY, Appellant.

No. 4109.

Supreme Court of Arizona, In Banc.

Feb. 25, 1980.

Rehearing Denied March 25, 1980.

Robert K. Corbin, Atty. Gen., William J. Schafer, III, Chief Counsel, Criminal Division, Robert S. Golden, Asst. Atty. Gen., Phoenix, for appellee

Jay M. Abbey, Pinetop, for appellant.

GORDON, Justice:

Thurman Laverle Dickey appeals from a judgment of conviction, after a jury trial, of first degree murder. Appellant was sentenced to life imprisonment without possibility of parole for twenty-five years. Assuming jurisdiction pursuant to A.R.S. § 13-4031, we affirm.

Appellant raises the following issues:

1. Whether a new trial should be granted, because part of the transcript of the hearing on appellant's motion for a new trial is unavailable;

2. Whether testimony about a statement made by appellant prior to the crime was erroneously admitted into evidence;

3. Whether appellant's Miranda rights were violated;

4. Whether certain portions of expert testimony for the defense were improperly excluded from evidence;

5. Whether the trial court incorrectly instructed the jury;

6. Whether there was sufficient evidence to support a verdict of first degree murder.

Viewing the evidence in the light most favorable to the state, State v. Childs, 113 Ariz. 318, 553 P.2d 1192 (1976), the following facts emerge. On the evening of April 7, 1977, the victim, Karl Koester, was driving a van with three passengers from a cookout in Snowflake in Navajo County. Koester mistakenly thought he recognized a trailer of a friend which he saw as the van passed by appellant's ranch. He turned the van off the main road and proceeded onto appellant's property. After ascertaining that the trailer was not the one he had believed it to be, Koester left the property and drove back onto the main road toward Snowflake.

At the same time that Koester was driving on the Dickey Ranch, appellant, accompanied by Charles Lynn Johnson, was driving his pickup back to his home from Snowflake. Johnson was having a conversation with Hobart Powers on a CB radio when appellant's wife, calling from home, broke into the conversation and stated in a frightened voice that a strange vehicle was riding around on the Dickey property. At this time appellant's pickup was about one-quarter of a mile from the ranch, and he observed Koester's van exiting. The Koester van passed appellant's pickup, and appellant turned around and followed the van. Appellant was aware that Mrs. Dickey had told Johnson, over the radio, that she was not harmed or in danger. Johnson said to Mrs. Dickey, "We got it in sight and we are in chase."

When Koester realized the van was being followed he sped up and pulled off the road with the van's lights out. Appellant's pickup drove by the hidden van. Koester then drove back onto the road toward Snowflake, where he met appellant's vehicle coming back in the opposite direction. Koester pulled his van off the road, and appellant did the same with his pickup. When a passenger in the van, Dale Norman, began rolling down his window, Johnson fired a After the pistol was fired, Koester drove his van back on the road toward Snowflake, and appellant pursued. Koester then quickly turned his van around facing the pickup and the two vehicles stopped within three to four feet of each other. About five minutes had elapsed since Johnson fired the pistol.

pistol from the pickup. Johnson testified that this was a warning shot, fired at appellant's request with appellant's .357 magnum pistol, which appellant kept loaded in the pickup's glove compartment.

As soon as the van stopped, Koester got out of the van and yelled, "What the fuck do you guys want?" Appellant took a pistol, which was designed to fire shotgun shells, from the seat next to him and, firing through his rolled down window, shot Koester in the chest. Koester fell in the road and died.

Johnson testified that the "shotgun pistol" had been on the dashboard of the vehicle, but at some point after he and Dickey had left Snowflake, appellant placed it on the seat beside him. Immediately after the shooting and at the time the police arrived, appellant appeared very calm.

THE MISSING TRANSCRIPT

The transcript for the first of three days of hearings on appellant's original motion for new trial is unavailable because of the failure of the court reporter to transcribe his notes. On May 25, 1979, appellate counsel, who had not represented Dickey at trial, filed in this Court a "Motion for Completion of Record or in the Alternative to Remand for a New Trial or for Judgment of Not Guilty." On June 5, 1979, we denied that motion and entered an order as follows:

"FURTHER ORDERED: This matter shall be remanded to the trial court for the limited purpose of allowing appellant to present a second motion for new trial to the trial court since the transcript of the original motion for new trial is unavailable. Said motion shall be heard by the trial court within 20 days of the date of this order. If the motion is denied, the transcript of the hearing shall be prepared immediately and forwarded to this Court as part of the record on appeal."

On June 21, 1979, a second motion for new trial hearing was held. The transcript of that hearing has been filed with this Court. On appeal, however, appellant again maintains that the unavailability of part of the transcript for the first hearing can only be remedied by a new trial. We disagree.

Appellant asserts in this Court, as he did at the second hearing, that the lapse of time between trial in September 1977 and the second hearing on June 21, 1979, made it impossible to adequately argue a second motion for new trial. He does not, however, allege any specific prejudice, such as the unavailability of witnesses, caused by the passage of time, nor does he claim the existence of a trial defect that could not be argued, in a motion for new trial, from the complete transcript of the trial. ¹ Appellant contends that he is placed in the position of appealing with an incomplete record. Although serious problems may be presented when an appellate court seeks to review a trial judgment without a complete record, see State v. Masters, 108 Ariz. 189, 494 P.2d

1319 (1972); State v. Madrid, 20 Ariz.App. 51, 510 P.2d 50 (1973), this case does not present the problem of a partial record. Our order of June 5, 1979, gave appellant the opportunity to make a second motion for new trial so that he could appeal to this Court with a complete record, and we can now find no impediment to effective appellate review.

APPELLANT'S STATEMENT MADE PRIOR TO THE SHOOTING

Margaret Baker, a witness for the state, testified to a statement made by appellant sometime between January 1 and March 15, 1977. Mrs. Baker stated that she had been a bartender at the Snowflake Inn in Snowflake and that appellant had been a customer. She related an incident, where appellant, who has only limited use of his legs and left arm, fell down when he went to the restroom:

"(Dickey) fell and came back, people helped him up, he came back and one of the customers there said to him, 'Well, boy, living out there where you do, you know, what would you do if you ever had any trouble or was hurt or needed help,' or something to that effect, and he says, 'I don't worry about it, I always carry a bit in my truck,' he said, 'If anybody ever messes with me, I'll blow them away.' "

Appellant, citing State v. Mincey, 115 Ariz. 472, 566 P.2d 273 (1977), rev'd on other grounds, Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), contends that the above statement was inadmissible because it was not directed toward a specific class of persons. In Mincey, we found that defendant's statement referred specifically to police and was, therefore, admissible to prove defendant's mental state when he shot a policeman. Since the statement in Mincey referred to the same specific class of persons, policemen, as the one involved in that crime, we found the statement relevant. The ultimate test of admissibility of a prior statement is whether that statement is relevant for a permissible purpose. The fact that the statement in the instant case does not refer to a specific person or class does not necessarily make it irrelevant and inadmissible.

The test of relevance is whether the evidence tends "to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." 17A A.R.S., Rules of Evidence, Rule 401. Using this test, we find that the testimony of Mrs. Baker was relevant for several permissible purposes. Because appellant's earlier statement concerned circumstances which were similar to those surrounding the shooting, the statement tended to prove that appellant reflected upon shooting the occupants of Koester's van during the chase and that he placed his shotgun pistol on the seat beside him with this purpose in mind. Mrs. Baker's testimony was properly admitted.

STATEMENTS MADE PRIOR TO MIRANDA WARNINGS

Appellant claims that the testimony of Officer Glen Flake concerning statements made by appellant to him were inadmissible, because they were elicited by questions asked before required Miranda ² warnings were given. Deputy Sheriff Flake testified at the hearing on appellant's motion to suppress that he and another police officer were the first law enforcement officials to arrive at the scene of the crime. They went to the scene in response to a CB radio message stating, "There is one dead and we have three in custody." No other details were known. When he arrived at the scene, Flake saw the van and pickup, the body of Karl Koester in the road, and several people lined up against the van as though they were being held there.

Officer Flake inquired generally, "Who shot him?" Appellant, sitting in the pickup, said that he had done it....