State v. Drury, 2599

• Decision Date: 25 March 1974
• Docket Number: No. 2599,2599
• Citation: 110 Ariz. 447,520 P.2d 495
• Parties: The STATE of Arizona, Appellee, v. James E. DRURY, Appellant.
• Court: Arizona Supreme Court

Page 495

520 P.2d 495

110 Ariz. 447

The STATE of Arizona, Appellee, v. James E. DRURY, Appellant.

No. 2599.

Supreme Court of Arizona, In Banc.

March 25, 1974.

Rehearing Denied April 23, 1974.

Gary K. Nelson, Atty. Gen., Phoenix by Howard L. Fell, Asst. Atty. Gen., Tucson, for appellee.

Lieberthal & Kashman by Howard A. Kashman, Tucson, for appellant.

CAMERON, Vice Chief Justice.

This is an appeal from a judgment of the court, sitting without a jury, finding the defendant James E. Drury guilty of second degree murder (§§ 13--451, 13--452 A.R.S.), and from a sentence of not less than thirty nor more than forty years (§ 13--453 A.R.S.) in the Arizona State Prison.

We are called upon to answer the following questions on appeal:

1. Was the defendant's waiver of a jury trial, based on the prosecutor's promise not to seek the death penalty, voluntarily and intelligently made when the death penalty was ruled unconstitutional by the United States Supreme Court shortly after the trial?

2. Was the defendant's ex-wife competent to testify?

3. Did the testimony of the defendant's ex-wife violate the defendant's marital privilege against disclosure of confidential communications?

4. Did the trial court err in finding that the defendant's inculpatory statement to the sheriff's deputies was voluntary and admissible in evidence?

5. Was the testimony of one Dr. Cleary concerning the defendant's sanity improperly allowed where the doctor's opinion was based in part on tests and conclusions of other experts?

6. Was the evidence sufficient to establish the corpus delicti?

7. Does the evidence support a conviction for second degree murder?

8. Is the sentence excessive?

The facts necessary for a determination of the issues before us are as follows. In March 1970, the defendant James Drury and his wife Joyce (Mrs. Barr at the time of trial) were convicted in Freestone County, Texas, for theft and forgery, respectively. They were given 'bench paroles' on condition that they leave Texas and not return to that State for a period of two years. In April 1970, defendant, his wife and their children arrived in Tucson, Arizona, and stayed at the Salvation Army Hospitality House in that city until the defendant secured a job and was able to move his family into a trailer. While at the Hospitality House the Drury's made the acquaintance of one Hoskins Foster.

On 10 May 1970, between 10:00 and 11:00 a.m., Hoskins Foster drove to the Drury residence, got the defendant out of bed, and the two started drinking beer. The defendant and Foster left the trailer for a short time, and when they returned, continued to drink. About 2:00 p.m. the defendant told his wife to go to his place of employment to pick up a check. When she returned about 1 1/2 hours later she found the beaten and bloody body of Foster lying on a hide-away bed. The body was stripped of clothing and covered with a sheet, a blanket, and a towel. At her husband's direction, Mrs. Drury placed the body into a sleeping bag, dragged it out of the trailer and placed it into the trunk of Foster's car. The defendant then loaded his family into the car and started driving on Interstate 10 in the direction of Phoenix. Enroute the defendant stopped the car and dropped Foster's body in the desert near the Ina Road exit off Interstate 10. He proceeded on to Phoenix where he was stopped and arrested for driving while intoxicated and for driving without a valid license.

On the following day, 11 May 1970, the body of Hoskins Foster was discovered by a passing motorist. An autopsy was performed and the cause of death determined to be suffocation due to aspiration of vomitus. Foster's blood alcohol level was fixed at .27.

Through its investigation authorities in Pima County came to suspect Drury in the beating of Foster. On 20 May 1970, deputies from the Pima County Sheriff's Department traveled to Phoenix to question Drury, who had been incarcerated in the Maricopa County Jail since his arrest ten days earlier. The defendant was advised of his Miranda rights after he answered a few preliminary questions concerning his age, schooling, etc. He waived his rights and then responded to further questions by the deputies. He stated that he and Foster had been drinking in the morning of 10 May, that after several hours of drinking a fight ensued, and that he had beaten Foster with a 2 3 board. He maintained, however, that Foster was still alive after the beating and that he stripped him of his clothes and placed him in the desert only to prevent him from going to the police.

The defendant was transported to Tucson, and on the following day, 21 May 1970, he was examined by Dr. Cutts, a psychiatrist, at the request of the Pima County Attorney's Office. At the trial, Dr. Cutts testified on the defendant's behalf both as to the insanity issue and the defendant's mental ability to understand the meaning and substance of his Miranda rights for the purpose of waiver. Another psychiatrist, Dr. Jones, who examined Drury on 27 June 1970 gave similar testimony on behalf of the defense.

On 16 June 1970, after a preliminary hearing, the defendant was held to answer on an open charge of murder. The defendant sought a writ of habeas corpus in the Superior Court, contesting the magistrate's finding of probable cause to believe that the beating of Foster resulted in his death. The petition was denied, and the defendant appealed. The Court of Appeals reversed, Drury v. Burr, 13 Ariz.App. 164, 474 P.2d 1016 (1970), and this court granted a petition for review, set aside the decision of the Court of Appeals, and affirmed the order of the Superior Court. Drury v. Burr, 107 Ariz. 124, 484 P.2d 539 (1971). The defendant then sought relief in the federal courts. The District Court denied relief, and the Ninth Circuit Court of Appeals affirmed the District Court's judgment, holding that the appeal was premature. Drury v. Cox, 457 F.2d 764 (9th Cir. 1972). While awaiting the outcome of his appeals, the defendant was three times transferred from jail and committed to the Arizona State Hospital. He was committed on emergency certification on 2 June 1971, and released a short time thereafter. However, during that same month he was again committed and on 23 June 1971 he was declared incompetent to stand trial. On 4 August 1971, the hospital officials declared that his competency was restored, but on 27 October 1971 the defendant was recommitted to the Hospital and spent four months in maximum security. It was during this latter commitment that defendant's wife secured a divorce decree in Harris County, Texas.

Commencing on 5 June 1972, after he was declared competent, the defendant went to trial before the court without a jury. Defendant's ex-wife, Mrs. Joyce Barr, testified against him, and he was adjudged guilty of second degree murder and sentenced to from thirty to forty years.

WAS THE DEFENDANT'S WAIVER OF A JURY TRIAL KNOWING AND VOUNTARY?

The defendant waived his right to a jury trial on the prosecutor's promise not to seek the death penalty. A short time after defendant's conviction the United States Supreme Court held that the death penalty was unconstitutional. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); Stewart v. Massachusetts, 408 U.S. 845, 92 S.Ct. 2845, 33 L.Ed.2d 744 (1972). Defendant now argues that the bargain he entered into to avoid a possible death penalty was inherently coercive, and that his waiver cannot be deemed to have been voluntarily and intelligently made. We disagree.

In an analogous case wherein the defendant agreed to plead guilty in exchange for the prosecutor's promise not to seek the death penalty we held that the plea was intelligently made:

'A plea bargain properly entered into and adhered to by the parties should not be set aside because of changes in the law occurring after the plea. To allow a defendant to come back into court and challenge a plea bargain after every change in the law not contemplated by defendant or his counsel at the time of the plea would result in no plea bargain ever being final. We find no error. * * *' State v. Nunez, 109 Ariz. 408, 411, 510 P.2d 380, 383 (1973). See also Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970).

We believe the reasoning of Nunez, supra, is applicable here. From an examination of the transcript we find that the waiver of a jury trial was intelligently made based upon the law as it existed at the time of the waiver. The waiver was also voluntarily made, and it was not made any less voluntary by a subsequent change in the law.

WAS MRS. BARR AN INCOMPETENT WITNESS?

Our statute on the marital privilege reads in part as follows:

'A person shall not be examined as a witness in the following cases:

'1. A husband for or against his wife without her consent, nor a wife for or against her husband without his consent, nor can either, during the marriage or afterwards, be, without consent of the other, examined as to any communication made by one to the other during the marriage. These exceptions do not apply in a criminal action or proceeding for a crime committed by the husband against the wife, or by the wife against the husband. * * *' § 13--1802 A.R.S.

Section 13--1802 A.R.S. deals with two separate and distinct concepts: incompetency of one spouse as a witness for or against the other, and the privilege held by one spouse which prevents adverse testimony by the other both during and after the marriage. The incompetency portion of our statute operates to absolutely disqualify a spouse as a witness for or against the other without his or her consent. The proscription applies only so long as the parties are married.

Defendant sought to prevent his (ex-) wife's testimony by collaterally attacking the Texas divorce decree on due...