State v. Doss

Decision Date07 July 1977
Docket NumberNo. 3069,3069
Citation568 P.2d 1054,116 Ariz. 156
PartiesSTATE of Arizona, Appellee, v. Charles Russell DOSS, Appellant.
CourtArizona Supreme Court

N. Warner Lee, Former Atty. Gen., Bruce E. Babbitt, Atty. Gen. by William J. Schafer III, Grove M. Callison and Galen H. Wilkes, Asst. Attys. Gen., Phoenix, for appellee.

Carmichael, McClue & Stephens by M. Jeremy Toles and James J. Syme, Jr., Phoenix, for appellant.

HOLOHAN, Justice.

Charles Russell Doss was tried and convicted of first-degree murder. A sentencing hearing was held pursuant to A.R.S. § 13-454, and the trial court found that there was an aggravating circumstance proved and no mitigating circumstances. The trial court sentenced the defendant to death. This appeal followed.

The facts of the case are not in dispute. The defendant and the victim, Peter Jesik, were attending junior college. There was ill feeling between them. On the day of the homicide during registration for the fall term the victim had made an insulting remark to the defendant. Thereafter the defendant drove to his home, got his revolver, returned to the college, and sought out the victim. He found the victim in the college gymnasium which was crowded with students registering for classes. The defendant came up to the victim from behind and emptied his revolver at him, killing the victim and wounding a student standing nearby.

The defense has never contested the fact that it was the defendant who killed the victim. The defense contended that the defendant was legally insane at the time of the homicide or that the circumstances justified at most a finding of manslaughter. The points raised on appeal are interwoven and controlled by the evidence of the defendant's mental condition. The trial court admitted defendant's statements to police as voluntary, refused to allow the defendant to represent himself, and refused to find that his mental condition constituted a mitigating circumstance in determining the sentence to be adjudged. The jury found the defendant sane and guilty of first-degree murder.

A substantial portion of the evidence in the case dealt with the defendant's mental condition. This evidence was presented at both pretrial hearings and at trial. Early in the case the defendant was examined by psychiatrists to determine whether he was competent to understand the proceedings and assist counsel in the case. At the hearing on this latter issue the medical experts agreed that the defendant was competent to be tried, but there was testimony at the hearing that the defendant was suffering a mental illness.

The defendant had become dissatisfied with his court-appointed counsel after a few months. He requested the trial court to dismiss the defense counsel and allow him to represent himself. This request was not acted on until the defendant was found competent to stand trial. After defendant was adjudged competent to stand trial, the trial judge granted the defendant's request to dismiss appointed counsel and represent himself.

Relying on the holding in Westbrook v. Arizona, 384 U.S. 150, 86 S.Ct. 1320, 16 L.Ed.2d 429 (1966), the prosecutor filed a motion for determination of the defendant's competency to conduct his own defense. After hearing argument on the motion, the trial court set the matter for hearing. On the same day the defendant filed a motion to withdraw as his own attorney. He asked that appointed counsel be restored because the defendant feared that he would not be able to function properly under emotional stress. Six days later the defendant wrote to the trial judge advising the court that he was withdrawing his resignation as his own attorney because appointed counsel had expressed an opinion that the defendant couldn't "win."

At the hearing on the defendant's competency to conduct his own defense, two psychiatrists testified that the defendant was suffering from a mental illness which substantially impaired his ability to make a competent decision concerning a waiver of constitutional rights. Faced with this evidence the trial court set aside the previous order relieving appointed counsel, and the trial court ordered that the defendant be represented by counsel.

The defendant challenges this ruling. He argues that under the Arizona Constitution, Article 2 § 24 and under the Federal Constitution an accused has the absolute right to represent himself. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The defendant further points out that the ruling of the trial court denying him the right to represent himself is totally inconsistent with the subsequent ruling by the same court that the statements made by the defendant to the police were voluntary.

As contended by the defense, subsequent to the ruling denying the defendant the right to represent himself, the state sought a hearing on the issue of the voluntariness of certain statements made by the defendant after his arrest and while in custody. At the hearing on this issue two of the psychiatrists who had testified at the hearing on the defendant's mental capacity to represent himself testified that the defendant was not competent to waive his constitutional rights for the purpose of making a voluntary statement. The state's psychiatrist disagreed and testified that the defendant, while suffering epilepsy and having a serious personality disorder, was not mentally ill. After the hearing the trial court ruled the defendant's statements were voluntarily made and admissible at trial. The statements made by the defendant to the police were admitted in evidence at the trial.

We agree with the position of the defendant that the two rulings by the trial court are inconsistent. Even the fact that the second hearing had additional opinion evidence does not change the fact that the rulings cannot both be correct.

In Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), the United States Supreme Court noted that courts indulge every reasonable presumption against waiver of fundamental constitutional rights. The determination of whether there has been an intelligent waiver of right to counsel must depend upon the particular facts and surroundings of the case, including the background, experience, and conduct of the accused. A mentally incompetent defendant cannot knowingly or intelligently waive his constitutional rights. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). Whether an accused has made an intelligent and knowing waiver of counsel is a question of fact. Hallowell v. United States, 197 F.2d 926 (5th Cir. 1952). The concern for determination of a proper waiver was expressed in Johnson :

"The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused whose life or liberty is at stake is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record." Johnson v. Zerbst, 304 U.S. 465, 58 S.Ct. 1023.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) the Federal Supreme Court stated that a high standard of proof was required for the waiver of constitutional rights.

We believe that the evidence presented at the hearing on the issue of waiver of counsel supported the trial court's decision that the defendant not represent himself. There was evidence that the defendant was physically unable to carry on his defense, and at various times the defendant has acknowledged that stress affects his speech and presents a danger of a seizure. Faretta, however, makes clear that the lack of skill and experience * is not the issue in making the choice of self-representation. The standard is still a knowing and voluntary relinquishment of a constitutional right. Although there was some argument made to the trial court concerning the physical ability of the defendant to represent himself, there was compelling evidence that the defendant was too emotionally disturbed to make a knowing waiver. As long as the trial court made a correct legal ruling it matters not upon what grounds he based the ruling. State v. Sardo, 112 Ariz. 509, 543 P.2d 1138 (1975); State v. Martin, 102 Ariz. 142, 426 P.2d 639 (1967).

The same principles applicable to waiver of counsel at trial are also applicable to waiver of counsel at the time of custodial interrogation. Guided by those principles we conclude that the trial court was in error in ruling the statements of the defendant as voluntary. The admission of these statements was error. From a review of the evidence, however, the error was harmless. The statements by the defendant concerning the crime added nothing to the case because the same matters were presented by the testimony of other witnesses. The effect of the defendant's statement can best be described by reference to the cross-examination of the police officer who took the statements:


"Q At the time you interviewed Mr. Doss, Detective Quaife, you were aware, were you not, that there were several hundred people in the gymnasium when the shooting took place, were you not?

"A This was my understanding, yes, sir.

"Q And it is basically police procedure, even in a situation of that sort, to question a person who has been arrested for a crime committed in front of so many witnesses?

"A Yes.

"MR. RITCHIE: I have no further questions."

The factor of the defendant's mental condition again became an issue in the trial of the case because of the defense of insanity. There never was any doubt that the defendant fired the fatal shots which killed the victim. The only real question was the defendant's state of...

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  • People v. Burnett
    • United States
    • California Court of Appeals Court of Appeals
    • January 27, 1987
    ...waive counsel even though he does not suffer a mental abnormality. Thus, for example, the Arizona Supreme Court held in State v. Doss (1977) 116 Ariz. 156, 568 P.2d 1054, that a finding of mental abnormality is not essential in order to establish incompetence to waive counsel even though Ru......
  • State v. Price
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    ...victim in a crowded place, emptied his gun at him killing the victim and wounding a person standing nearby (State v. Doss, 116 Ariz. 156, 568 P.2d 1054 (Sup.Ct.1977)), and where defendant shot three intended victims in a crowded bar, the court noting that when defendant emptied his gun at t......
  • State v. Lavers
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    ...leniency is required when defendant's neurological lesion was "a major and contributing cause of his conduct"); State v. Doss, 116 Ariz. 156, 163, 568 P.2d 1054, 1061 (1977) (holding that leniency is appropriate when defendant's mental condition was "a substantial factor" in causing the mur......
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    ...1341, 2 L.Ed.2d 1460. Several jurisdictions do not even allow diminished capacity as an affirmative defense. See, State v. Doss, (1977), 116 Ariz. 156, 568 P.2d 1054; Bethea v. United States, (D.C.App.1976), 365 A.2d 64; cases collected in 22 A.L.R.3d 1228, 1235-1238. Indeed, in the sole op......
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3 books & journal articles
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    • State Bar of Arizona Arizona Supreme Court Part H Cases Cited(Chapter 68. - 69.) 69. Cases Cited: Arizona Supreme Court.
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    ...4-34 State v. Donald, 198 Ariz. 406, 10 P.3d 1193 (App. 2000)....................................... 4-89 State v. Doss, 116 Ariz. 156, 568 P.2d 1054 (1977)................................................. 4-34 State v. Dunlap, 187 Ariz. 441, 930 P.2d 518 (App. 1996)..............................

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