State v. Ferrari

Decision Date23 October 1975
Docket NumberNo. 3057,3057
Citation541 P.2d 921,112 Ariz. 324
PartiesSTATE of Arizona, Appellee, v. Fernando Fred FERRARI, Appellant.
CourtArizona Supreme Court

Joseph A. Lovallo and Theodore Knuck, Tucson, for appellant.

Bruce E. Babbitt, Atty. Gen. by Shirley H. Frondorf and William J. Schafer, III, Asst. Attys. Gen., Phoenix, for appellee.

O'CONNOR, SANDRA D., Superior Court Judge.

Fernando Fred Ferrari ('appellant') was convicted by a jury of first degree murder and first degree burglary. He was sentenced to life imprisonment on the murder charge and to ten to fifteen years on the burglary charge. Appellant asserts there were nine errors requiring reversal committed during the course of the trial. The essential facts giving rise to the charges will be related during our discussion of the various alleged errors at the trial.

Basis of Appeal

We are asked to answer the following questions on appeal:

1. Did the court err in giving the following jury instruction after the jury asked whether a conviction of first degree burglary automatically means guilt of first degree murder?

'You are instructed that if a human being is killed by any one of several persons engaged in the perpetration of, or attempt to perpetrate, the crime of burglary, all persons who either directly and actively commit the act constituting such crime or who knowingly and with criminal intent aid and abet in its commission, or who advise and encourage its commission are guilty of murder of the first degree Whether the killing is intentional, unintentional, or accidental. (Emphasis added.)

'You must consider this instruction in connection with all of the other instructions which have been given to you.'

2. Was it reversible error to allow the admission into evidence of various hearsay statements of alleged co-conspirators when there allegedly was no independent evidence of a conspiracy?

3. Was it reversible error to permit appellee to ask allegedly prejudicial warning questions of appellee's witness, Brummer, when the court had previously ruled that appellee would not be allowed to impeach Brummer by evidence of a prior inconsistent statement and when the witness had already testified that he did not recall anything which occurred on the night of the alleged murder?

4. Did the court err in denying appellant's motion in limine to exclude the testimony of Jack Dempsey Van Noy, Jr., alleged agent of the prosecution?

5. Did the court commit reversible error when it denied the appellant's motion for change of venue?

6. Did the court commit reversible error when it denied appellant's motion to exclude allegedly prejudicial and inflammatory pictures?

7. Was it reversible error to deny appellant's motion in limine to prevent testimony and instruction regarding the flight of appellant and in granting appellee's requested instruction concerning flight of the accused after a crime had been committed, since there allegedly was no evidence of flight, as flight is described and defined by law?

8. Was it reversible error to grant appellee's motion to have the court call the witnesses, Anne Chapman and Nancy Campbell, as court witnesses in order to allow cross-examination of those witnesses by appellee?

9. Was it reversible error to deny appellant's motion in limine to suppress the testimony of Cryle 'Terry' Beaver who allegedly had previously lied?

Instruction on Felony Murder Doctrine

Appellant and a co-defendant, Lawrence P. Brummer, were charged with first degree murder and burglary in connection with the death of David Chapman. There were no eye witnesses to the crimes.

After the jury had deliberated approximately twelve hours, it asked the court the following question: 'Does the conviction on first degree burglary automatically mean guilt of first degree murder?'

The court gave the following instruction in answer to the jury's question:

'You are instructed that if a human being is killed by any one of several persons engaged in the perpetration of, or attempt to perpetrate, the crime of burglary, all persons who either directly and actively commit the act constituting such crime or who knowingly and with criminal intent aid and abet in its commission or who advise and encourage its commission, are guilty of murder of the first degree Whether the killing is intentional, unintentional, or accidental. (Emphasis added.)

'You must consider this instruction in connection with all of the other instructions which have been given to you.'

The jury then returned verdicts finding appellant guilty of first degree burglary and first degree murder. Murder is the unlawful killing of a human being with malice aforethought. A.R.S. § 13--451. A murder which is committed in the perpetration of burglary or any of the other specifically named felonies is murder in the first degree (A.R.S. § 13--452) whether willful and premeditated or only accidental. State v. Hitchcock, 87 Ariz. 277, 350 P.2d 681 (1960), cert. denied, 365 U.S. 609, 81 S.Ct. 823, 5 L.Ed.2d 821 (1961); State v. Collins, 111 Ariz. 303, 528 P.2d 829 (1974); Cf. In re Anonymous, Juvenile Court No. 6358--4, 14 Ariz.App. 466, 484 P.2d 235 (1971). This court in State v. Hitchcock, supra, held that the trial court property instructed the jury on the felony murder rule in Arizona when it gave the following instruction:

'Ladies and gentlemen of the jury, you are further instructed that if a human being is killed by another person while such person is engaged in the perpetration of, or an attempt to perpetrate the crime of robbery, such person doing the killing under such circumstances is guilty of murder of the first degree, regardless of whether the killing is intentional or unintentional.' 87 Ariz. at 287, 350 P.2d at 687.

In State v. Collins, supra, 528 P.2d at 832, this court noted:

'. . . the jury was informed that if they believed a robbery had been committed or attempted and a human being had been Killed in the perpetration of or attempt to perpetrate such robbery, that they should find the defendant guilty of first degree murder. . . . (Emphasis added.)

'A.R.S. § 13--451 provides that murder which is committed in the perpetration of or attempt to perpetrate robbery is murder of the first degree. Having found the defendant guilty of robbery, they could not then find the defendant guilty of an inferior degree of homicide.'

The holding of this Court in Eytinge v. Territory, 12 Ariz. 131, 100 P. 443 (1909), the case relied upon by appellant, has in effect been overruled by the later Arizona cases cited above.

Homicide is murder if the death results from the perpetration or attempted perpetration of one of the specific offenses listed in A.R.S. § 13--452. The specific intent for the felony, in this instance burglary, supplies the necessary element of malice or premeditation. State v. Howes, 109 Ariz. 255, 508 P.2d 331 (1973).

The trial court's instruction in response to the jury's question in this case was not error when considered together with all of the other instructions previously given by the court.

Hearsay Statements of Alleged Co-Conspirators

Appellant argues that the trial court committed reversible error by allowing into evidence various hearsay statements by witnesses, Anne Chapman and Agnes L. 'Nancy' Campbell, on the basis that they were co-conspirators with insufficient independent evidence of the existence of the conspiracy. Appellant does not specify the particular hearsay statements of the witnesses which he asserts constitute reversible error.

The general rule is that declarations of co-conspirators made in furtherance of the conspiracy and while the conspiracy is continuing are admissible provided the existence of the conspiracy is proved independently. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Territory v. Turner, 4 Ariz. 290, 37 P. 368 (1894); 4 Wigmore, Evidence (Chadbourn rev. 1972) § 1079(1)(a); McCormick, Evidence 2d Ed.1972, § 267, p. 645. The trial court judge in his discretion may vary the order of proof and admit the declaration contingent upon the later production of the prima facie independent proof of the conspiracy. State v. Cassidy, 67 Ariz. 48, 190 P.2d 501 (1948); United States v. Halpin, 7 Cir., 374 F.2d 493, cert. denied, 386 U.S. 1032, 87 S.Ct. 1482, 18 L.Ed.2d 594 (1967). Appellant has not specified the particular hearsay statements on which he relies in asking that the judgment be reversed. Normally, in such instances the court will not review the transcript on appeal to search for the evidence to overturn the judgment. Love v. Bracamonte, 29 Ariz. 227, 240 P. 351 modified on other grounds 29 Ariz. 357, 241 P. 514 (1925); Grounds v. Lawe, 67 Ariz. 176, 193 P.2d 447 (1948). However, in view of the gravity of the charges against appellant in this case, the transcript has been reviewed to determine whether fundamental error occurred requiring the verdict and judgment of guilt to be overturned on the ground that there was insufficient independent prima facie evidence of a conspiracy to justify admission of those hearsay statements of Anne Chapman and Nancy Campbell which were admitted over appellant's objection.

The evidence relied upon by appellee, to establish prima facie and independently the existence of the conspiracy between appellant and Anne Chapman and Nancy Campbell to commit burglary or murder, is purely circumstantial. Essentially such evidence shows that the victim, David Chapman, and Anne Chapman, his wife, had quarrelled and physically fought approximately a week before David's death and had separated. Anne Chapman and her daughter, Nancy Campbell, were living together. Both of them disliked and feared David Chapman. Nancy Campbell and appellant were dating each other and having sexual relations. They saw each other frequently during the week prior to David Chapman's death. David and Anne Chapman and Nancy Campbell and appellant had seen each other the day of David's death at the Ox Bow Tavern, where...

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