State v. Essman

• Decision Date: 23 June 1965
• Docket Number: No. 1426,1426
• Citation: 403 P.2d 540,98 Ariz. 228
• Parties: The STATE of Arizona, Appellee, v. Fred ESSMAN, Appellant.
• Court: Arizona Supreme Court

Page 540

403 P.2d 540

98 Ariz. 228

The STATE of Arizona, Appellee, v. Fred ESSMAN, Appellant.

No. 1426.

Supreme Court of Arizona, In Banc.

June 23, 1965.

Robert W. Pickrell, Atty. Gen., and Norman E. Green, Pima County Atty., by Carl Waag, Deputy County Atty., for appellee.

Bernard I. Rabinovitz, Tucson, for appellant.

BERNSTEIN, Justice.

Appellant was convicted of murder in the first degree and sentenced to life imprisonment by the Superior Court of Pima County. After denial of a motion for new trial this appeal was filed.

The charges against appellant arose from the fatal shooting of his wife on the evening of August 10, 1963. Appellant and his wife had been married for 19 years and had two children. The appellant and his wife were both employed. Appellant got off work early on the afternoon of the day of the shooting and began drinking with a friend. He made it a point to meet his wife when she finished work. She joined the party, and the trio proceeded to a tavern where they continued drinking in a 'congenial' manner. They then returned home, invited their friend to dinner, but he left after making plans to meet after dinner. Appellant and his wife were then alone in the living room. Their 14 year old daughter was in an adjoining bedroom.

Appellant had purchased a gun to take on a camping trip. On the day of the shooting, appellant had been cleaning his gun after he got off work. He took the gun with him when he went to the tavern and liquor store, leaving it in the car. When appellant and his wife returned home appellant started to play with his gun. His wife, who had not had as much to drink as he had, warned him to put the gun away as he might hurt someone. This warning was heard by the daughter in the adjoining room. To prove the gun was harmless, appellant pointed the gun at their dog and pulled the trigger three times with the hammer falling against empty chambers of the eight chambered revolver. He then advanced toward his wife, yelled 'Boom' and pulled the trigger. The gun had not in fact been completely unloaded, and a bullet was discharged, fatally injuring appellant's wife. The 'clicks' and the shot were heard by the daughter, but she did not come into the room until after her mother was shot.

Appellant told the first neighbor who came to the house that he had accidentally shot his wife, and has consistently maintained his story that this tragedy was an accident. He was taken to the police station by the investigating officers, interrogated for about three hours, and released on bond on a drunk charge. Appellant made three statements to the police at the police station, only one of which was reduced to writing. Appellant's wife died in the hospital while the statements were being made, and police informed appellant of this fact. The murder charge was made four days later, after further investigation and interrogation.

The State supports its theory of first degree murder by pointing to inconsistencies in appellant's statements as to his exact position when the fatal bullet was fired, evidence of prior quarrels and expert testimony that there were powder burns on the wife's blouse, and that the shot was fired at a very close range.

Appellant's first assignment of error is that the trial court erred in not granting appellant's motion to quash the information. This motion was made prior to appellant's entering his plea in the Superior Court pursuant to Rule 79, Rules of Criminal Procedure, 17 A.R.S., on the ground that the procedure followed at the preliminary examination deprived him of the rights guaranteed by Ariz.Const. Art. 2, § 30, A.R.S., which reads as follows:

'Section 30. No person shall be prosecuted criminally in any court of record for felony or misdemeanor, otherwise than by information or indictment; no person shall be prosecuted for felony by information without having had a preliminary examination before a magistrate or having waived such preliminary examination.'

This court has established rules governing Preliminary Examinations, Rules 16-37, Rules of Criminal Procedure, designed to carry out the intent of this constitutional provision. Rule 26 provides:

'After the defendant has made a statement or waived his right to do so, he may, if he desires, be sworn and testify in his own behalf. Whether or not the defendant testifies, any witnesses produced by him shall be sworn and examined. * * *'

At the preliminary examination the medical examiner, the daughter, employees of the police department, and the friend who was with appellant and his wife were called and testified. Defense counsel moved to dismiss the complaint, and this motion was denied. Up to this point the procedure at the preliminary examination was proper.

Defense counsel then wished to call witnesses for the defense, including police officers who saw appellant on the night of his wife's death and whose testimony on cross examination might support the defense theory that the charge should be one other than murder. After hearing extended argument the justice of the peace made this statement:

'THE COURT: And I have made a determination, and I told you earlier that I felt this Court sits on a par with a Judge of the Superior Court and with a Justice of the Supreme Court when it comes to determining probable cause, and as soon as probable cause is determined this Court has the power to conclude this hearing despite Rule 26, that's our feeling.'

* * *

* * *

'Rule 26 is not binding upon this Court after probable cause has been determined, unless you make an offer of proof with respect to each witness, after they are sworn in prior to their examination.'

The justice of the peace thereafter refused to permit defense witnesses to testify after being put on the stand unless defense counsel made an offer of proof.

A hearing before a magistrate who is so fundamentally mistaken as to the nature and purpose of a preliminary examination, and under such delusions as to his power to set aside the rules adopted by this court does not afford to the defendant the protection required by the Arizona Constitution.

The justice of the peace repeatedly stated that he would not permit defense counsel to conduct a 'fishing expedition'.

'Although the formal purpose of the preliminary examination is to establish probable cause to hold the defendant for trial, its principal purpose in practice is to afford defense counsel an opportunity to learn the nature of the prosecutor's case. Experienced defense counsel will, therefore, typically request a preliminary examination even though they are certain the prosecution will establish probable cause to hold the defendant for trial.' Miller and Remington, Procedures Before Trial, 339 Annals of the American Academy of Political and Social Science 111, 122.

The State does not contend that the conduct of the magistrate was proper. It takes the position that this question could not be raised by a motion to quash the information relying on our statement in State v. Woolery, 93 Ariz. 76, 81, 378 P.2d 751, 755, that:

'* * * The question of the sufficiency of the evidence at the preliminary examination before the magistrate may not be raised by a motion to quash the information, State v. Dunivan, 77 Ariz. 42, 266 P.2d 1077 (1954); Ramirez v. State, 55 Ariz. 441, 103 P.2d 459 (1940), since it is not one of the enumerated grounds set forth in Rule 169, Rules of Criminal Procedure, 17 A.R.S. See also Pfeiffer v. State, 35 Ariz. 321, 278 P. 63 (1929).' (Emphasis supplied).

The question here is not sufficiency of the evidence, and Woolery does not apply. Appellant here complains of the denial of his right to be heard. Due process of law requires that an accused must be given a full hearing meeting the requirements of due process. McGee v. Arizona State Board of Pardons and Paroles, 92 Ariz. 317, 320, 376 P.2d 779, 781.

In McGee we said:

'* * * Due process of law requires notice and opportunity to be heard, and:

'* * * there must be a hearing in a substantial sense. And to give the substance of a hearing, which is for the purpose of making determinations upon evidence, the officer who makes the determinations must consider and appraise the evidence which justifies them.' * * * Forman v. Creighton School District No. 14, 87 Ariz. 329, 351 P.2d 165.'

This principle applies universally, from the first hearing before a justice of the peace to the final one before the Board of Pardons and Paroles, and to both judicial and administrative action. The justice of the peace must also act in accordance with the cherished judicial tradition embodying the basic concepts of fair play. In Forman the right to produce witnesses and to cross examination were required and were specifically affirmed.

The justice of the peace is not required to listen to a filibuster. After he has heard all material and relevant defense evidence offered, and permitted reasonable cross examination, he has powers analogous to those of the trial judge in superior court to exclude irrelevant or cumulative testimony and to expedite the conclusion of the hearing. Rule 271, Rules of Criminal Procedure provides:

'It shall be the duty of the court to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, for the purpose of expeditious and effective ascertainment of the entire truth regarding the matters involved.'

Its principles are applicable here. A.R.S. § 22-211 provides:

'The law governing procedure and practice in the superior court so far as applicable and when not otherwise specially prescribed, shall govern procedure and practice in justice of the peace courts, except that the justice of the peace shall not charge the jury.'

See also Burnett v. State, 34 Ariz. 129, 268 P. 611; Bush v. State, 19 Ariz. 195, 168 P. 508.

In Martin v. Superior Court, 96 Ariz. 282, 283, 394 P.2d 211, 212, we denied a writ of prohibition where it was...