State v. Duncan
| Decision Date | 12 March 1970 |
| Docket Number | No. 1900,1900 |
| Citation | 105 Ariz. 426,466 P.2d 380 |
| Parties | STATE of Arizona, Appellee, v. James Chester DUNCAN, Appellant. |
| Court | Arizona Supreme Court |
Gary K. Nelson, Atty. Gen., Carl Waag, Asst. Atty. Gen., Phoenix, for appellee.
Machmer, Lahman & Cantor, by Lawrence C. Cantor, Phoenix, for appellant.
Defendant, James Chester Duncan, was convicted of assault with a deadly weapon (A.R.S. § 13--249) and sentenced to not less than one nor more than two years in the Ariziona State Prison. He appeals.
The facts are as follows: During part of July, 1967, riots erupted in parts of Phoenix. The Mayor declared an emergency and invoked a curfew. Arizona Highway Patrolmen were called in to patrol the riot-torn areas of the city.
The defendant lived in a section of Phoenix which had seen some of the worst trouble. On July 27th, the defendant left his night job at a steel factory early, around 7:00 P.M., so that he would not be on the street after dark. Although he went home, he became nervous and went to a local tavern and drank four or five beers. He returned home, but again became restless and went to another tavern where he drank four or five more beers. He then drove home.
The defendant parked his car on the street in front of his house shortly before midnight. He picked up his thermos and reached under the seat to get a carton of cigarettes he kept there. He also got the pistol and box of shells he had purchased earlier in the day for protection during the riots. As he started to get out of the car, he heard rocks scattering and brakes sliding on the street, and a car, with its headlights pointed at him, stopped near his car. He dropped everything he was holding except the pistol and turned around to see what was happening. He could not see anything except the lights of the car. The gun was still in his hand and was pointing at the car.
The occupants of this car were Arizona Highway Patrol officers, Officers Jenkins and Bond. They had been assigned to patrol the neighborhood in which the defendant lived. Their patrol car was a semimarked highway patrol car. It did not have the usual 'rabbit-ear' or 'bubble-top' red lights or other common police car markings. Instead, it merely had a red spotlight on the driver's side and a star decal on the passenger's door.
The officers had seen the defendant stop in front of his house. They turned their patrol car around and pulled up on the driver's side of the defendant's car as he was getting out. Officer Bond got out of the patrol car on the passenger's side and, upon seeing the defendant standing there with a pistol in his hand, dropped to a crouch benind the open door. Officer Jenkins, who was driving the car, got out on his side, drew his pistol, and moved to a position just in front of the windshield partly leaning across the hood of the patrol car. He ordered the defendant to drop his gun and identified himself as a police officer. At this time, Officer Bond called for assistance on the car's radio.
Officer Jenkins testified that when he told the defendant to drop the gun the defendant replied, 'You damn cops are always coming around bothering me and I am not going to drop the gun.' Jenkins then told the defendant that he was under arrest and that Jenkins was going to shoot if the defendant did not drop the gun. To this Jenkins says that the defendant replied, 'Go ahead and shoot.'
Several other police cars arrived at the scene, bringing the number of policemen to a total of ten or twelve. These officers were armed with pistols and shotguns. They all approached the defendant and while he was standing behind the driveway gate to his yard, made a half circle in front of him with their guns trained on him. According to Officer Jenkins' testimony, the following then took place:
At this time the defendant was placed in custody, and was taken to the police station. The various police officers involved testified that at no time during or following the occurrence did any of them smell the defendant's breath or give him any type of sobriety test. They did testify, however, that the defendant did not talk like a 'normal man.' However, Officer Jenkins testified that to him the defendant, '* * * didn't appear to be drunk * * *.'
The questions defendant raises before this court are:
1. Was there sufficient evidence...
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...An appellate court will then consider the evidence in the light most favorable to sustaining the jury's verdict. State v. Duncan, 105 Ariz. 426, 466 P.2d 380 (1970). The defendant directs us to the five instances where the State failed to prove: (1) why the eyewitness testimony about the ph......
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