State v. Fayle, 1

• Decision Date: 09 November 1982
• Docket Number: No. 1,CA-CR,1
• Citation: 658 P.2d 218,134 Ariz. 565
• Parties: STATE of Arizona, Appellee, v. Edward G. FAYLE, Appellant. 3744.
• Court: Arizona Court of Appeals

Page 218

658 P.2d 218

134 Ariz. 565

STATE of Arizona, Appellee, v. Edward G. FAYLE, Appellant.

No. 1 CA-CR 3744.

Court of Appeals of Arizona Division 1, Department B.

Nov. 9, 1982.

Rehearing Denied Dec. 17, 1982.

Review Denied Jan. 25, 1983.

Robert K. Corbin, Atty. Gen. by William J. Schafer, III, Chief Counsel, Criminal Division, Gerald R. Grant, Asst. Attys. Gen., Phoenix, and Stephen D. Neely, Pima County Atty. by John M. Roll, Deputy County Atty., Tucson, for appellee

Kemper & Henze by James Hamilton Kemper, Phoenix, for appellant.

OPINION

JACOBSON, Presiding Judge.

The unique facts in this appeal present the question of whether the defendant was competent to waive counsel and if so, whether the trial court improperly limited the presentation of "advisory" counsel.

The objective facts surrounding the crime of the defendant, Edward G. Fayle, are simple and straightforward. On July 27, 1972, the defendant went to the office of a Phoenix physician, Dr. Ernest W. Smith, according to the defendant, in order "to kill" Dr. Smith. When Dr. Smith walked up the sidewalk from his carport to the office building, he saw the defendant and waved at him. The defendant pulled a hidden weapon and fired directly into Dr. Smith's chest. This shot did not disable Dr. Smith, and he ran through a covered parking area and approached the back door of the building. At that point, the defendant again shot Dr. Smith twice, once on the left side of his skull. The defendant quickly left the parking lot.

When Dr. Smith was taken to the emergency room at St. Joseph Hospital he was, according to the treating physician, Dr. Polson, "very nearly dead" and "was in extreme shock from blood loss." Miraculously, Dr. Smith survived.

Charged with assault with intent to commit murder, the defendant initially was found incompetent to stand trial, and ordered committed to the State Hospital. On February 16, 1976, the charges pending against the defendant were dismissed with prejudice on the ground that there was no reasonable probability that the defendant would ever be competent to stand trial. The Arizona Supreme Court, on a petition for special action by the state, ordered that the dismissal was without prejudice.

Following a determination that the defendant was competent to stand trial, on September 22, 1977, the defendant was again indicted for the offense of assault with intent to commit murder in violation of A.R.S. § 13-248 of the criminal code in effect at that time. This indictment resulted in a jury trial where the defendant was found guilty as charged and subsequently sentenced to not less than 25 years nor more than 30 years in the Arizona State Prison.

The defendant has timely appealed. The defendant in propria persona initially requested that this matter be presented to the court on the record as presented in the trial court. As a result of the initial workup of this appeal by the central staff of this court, the court became concerned that it could not adequately decide this case based solely upon the record. This court then requested Mr. James Hamilton Kemper to represent the defendant on appeal and briefing ensued. While we have indicated that the facts surrounding the shooting of Dr. Smith are simple and straightforward, the motives behind that shooting and the mental makeup of the defendant are complex.

The defendant graduated from Stanford University in 1958 with a Bachelor of Science degree in mechanical engineering. Following graduation from Stanford, he was employed by two firms as an engineer, where he held responsible positions. He, in the past, has taken entrance exams for graduate school and has been admitted to the University of California at Berkeley where he studied business administration. He holds a real estate license in California; has successfully designed and placed in operation a liquid petroleum gas distribution system and a refrigeration system. His I.Q. places him in the top 5% of the general population.

Early in the defendant's career, he became obsessed with his physical condition. In 1963, the defendant's father made arrangements for the defendant to see a psychiatrist because of his preoccupation with his health. As a result of this contact, the defendant was admitted to a psychiatric hospital in Nevada, where he stayed for five weeks until he left without permission.

The defendant believed he was suffering from tuberculosis and has written extensively on this illness. Based upon his unfounded belief, the defendant has been examined by numerous physicians for his physical ailments. When he was unable to find a doctor who would treat him for tuberculosis, he would forge prescriptions and obtain medication to treat himself. Unfortunately, Dr. Smith was just one on the long list of physicians who were unable to grant the defendant relief from his supposed illnesses.

The defendant first contacted Dr. Smith on July 7, 1969. Defendant told Dr. Smith that he thought he had tuberculosis because he constantly had a general feeling of fatigue and because he had a sore throat. A week later, Smith told the defendant that there was no evidence of tuberculosis. Smith indicated to the defendant that in his opinion, the defendant's fatigue was derived from an emotional disorder and recommended that the defendant seek the care of a psychiatrist.

On July 14, 1969, the defendant sent a letter to Dr. Smith requesting a transfer of his records to Dr. Fisher. The defendant also at that time saw Dr. Max Wertz. In 1971, Dr. Wertz scheduled a biopsy on the defendant's foot, but the surgery was cancelled September 14, 1971. A letter from Dr. Wertz indicated that Dr. Wertz had spoken to Dr. Smith and a Dr. Shapiro, and that Wertz, Smith and Shapiro agreed that the defendant had a "severe emotional disturbance, and it is highly doubtful that there is a significant undiagnosed medical condition leading to his numerous complaints." The defendant believed that Dr. Wertz had cancelled the biopsy because Dr. Smith had intervened and had told Dr. Wertz that the defendant was a hypochondriac.

On July 27, 1972, the defendant shot Dr. Smith. After the shooting, defendant drove to the desert where he buried his gun in the event he "heeded it to shoot more doctors." He placed his car in storage and took a cab to the Phoenix Police Department where he gave his statement to detective Ron Quaife and then deputy county attorney Melvin McDonald. Prior to giving the statement, he required Quaife and McDonald to read a paper he had written on tuberculosis. After he was satisfied that they had read the paper, he gave his statement to them, telling them that he had shot Dr. Smith earlier that afternoon because he had been suffering from tuberculosis for many years. He had been unable to find a doctor to diagnose his illness, and thus had been unable to get treatment for it. He claimed that the tuberculosis made it impossible for him to work for more than short periods of time because of extreme fatigue. He claimed that he shot Dr. Smith not because of anything personally against the doctor, but, in defendant's words, "I nailed him because he's the most obnoxious of the bunch. I can't--I could have killed him or anyone of the doctors, it makes no difference to me, when they realize that I'm serious, maybe I'll get a little satisfaction in my tuberculosis."

We now turn to the pertinent trial proceedings. On December 13, 1977, the attorney for the state, who also represents the state on appeal, filed a motion pursuant to Rule 11, Rules of Criminal Procedure, 17 A.R.S., to have the defendant's competency to stand trial determined. Judge Stanley Z. Goodfarb appointed Drs. Maier Tuchler and Harrison Baker to determine the defendant's competency. On January 16, 1978, Judge Goodfarb determined that the defendant was competent to stand trial after the issue was submitted on the reports of Drs. Tuchler and Baker. The trial court did not at that time find that the defendant was competent to either enter a guilty plea or to waive constitutional rights.

In February, 1978, the defendant, who had, by this time, been through numerous defense counsel, and was dissatisfied with all of them, moved to waive counsel and represent himself. On February 17, 1978, Judge Goodfarb appointed Drs. Tuchler and Baker to examine the defendant to determine his competency to represent himself and to waive his constitutional right to counsel.

The doctors jointly interviewed the defendant on March 6, 1978, and present at the interview was the defendant's then counsel of record, Stephen M. Rempe. The doctors submitted a joint report dated March 15, 1978, in which they found that "the defendant does possess the requisite emotional, mental, and intelligence capacities to waive counsel representing him at trial. However, this is considered a marginal ability and highly dependent on his ability to cooperate and work with counsel."

On April 3, 1978, Judge Valdemar Cordova, to whom the matter had been reassigned, found the defendant competent to waive counsel, based on the written report of Drs. Tuchler and Baker. He also appointed Alan Susman as advisory counsel for the defendant.

On June 19, 1978, the defendant filed a motion to dismiss Susman and a statement indicating that he did not intend to present an insanity defense. On that same date the prosecutor requested the trial court to hold a new hearing to determine the defendant's competency to represent himself. Prior to the hearing on that request, the defendant resubmitted a motion to dismiss Susman as advisory counsel. During the hearing on the motion, the prosecutor presented interrogatories completed by Dr. Tuchler which indicated that if the defendant refused to present an insanity defense he was not competent to represent himself. Both motions were denied and the trial court found that the defendant had waived the issue of insanity, and that this defense would not be presented to the jury unless the...