State v. Fletcher
| Decision Date | 28 March 1986 |
| Docket Number | No. 6374,6374 |
| Citation | 717 P.2d 866,149 Ariz. 187 |
| Parties | STATE of Arizona, Appellee, v. David Cameron FLETCHER, Appellant. |
| Court | Arizona Supreme Court |
Frederic J. Dardis, Pima Co. Public Defender by Donald S. Klein, Constance L. Trecartin, Deputy Pima Co. Public Defenders, Tucson, for appellant.
Robert K. Corbin, Atty. Gen. by William J. Schafer III, Diane M. Ramsey and Barbara M. Jarrett, Asst. Attys. Gen., Phoenix, for appellee.
Appellant was convicted of one count of first degree murder and one count of first degree burglary. He was sentenced to life imprisonment without possibility of parole for 25 years on the murder count and to a concurrent term of 7.5 years on the burglary count. We have jurisdiction pursuant to A.R.S. § 13-4031.
On appeal, appellant presents three issues:
1. Was it reversible error for the trial judge to refuse to declare a mistrial on the murder count when it appears that the jurors were deadlocked as to that count?
2. Were the supplemental jury instructions, submitted to the jury after its numerous notes, improper, either as to the law they discussed, or in the manner they were submitted, so as to deny Fletcher a fair trial?
3. Is the recently adopted A.R.S. § 13-502(B), which requires that "the defendant shall prove he is not responsible for criminal conduct by reason of insanity by clear and convincing evidence" unconstitutional, resulting in a denial of a fair trial to Fletcher?
The facts are that the victim and appellant are father and son. The father was employed as a manager for Ithaca Industries and had obtained a job for his son at Ithaca. On September 9, 1983, after a heated argument, the father fired his son from his job at Ithaca. One week later, on September 16, 1983, after purchasing ammunition for his revolver, the appellant returned to Ithaca Industries and shot his father. The father, before his death, identified his son as the assailant. Appellant's defense was that he was insane at the time of the shooting.
Conflicting testimony as to mental competency at the time of the homicide was presented at trial. The defense psychologist diagnosed appellant as a schizotypal personality who experienced a brief reactive psychosis that began when he was fired by his father and ended after appellant shot his father. A brief reactive psychosis was described as a sudden onset of a psychotic disorder that lasts for a few hours, never more than two weeks.
Appellant's relationship with his father had been a stormy one. During his childhood he had nightmares that would send him to his parents' bed, only to be rebuked and sent away by his father under a threat of spanking. In one instance the father restrained the son by putting him in a cedar chest and sitting on the lid.
Appellant reported auditory hallucinations at an early age that continued into adulthood. During these auditory hallucinations he would hear the voice of his father calling him "stupid, messed up and crazy." At age eleven appellant had sought out a psychiatrist for help, but the symptoms continued. During his adolescent years, while living in North Carolina, a computerized axial topography ("CAT Scan") performed on the appellant failed to reveal any organic cause for the severe headaches he was experiencing.
After the divorce of his parents, appellant lost all interest in his appearance and would not bathe or change clothes without prodding. His appearance was a particular irritant to his father. During this period appellant developed a keen interest in numerology and contemplated changing his name as a solution to the problems he was experiencing.
This belief in numerology, categorized as magical thinking by psychologists, along with other manifestations, and coupled with the opinion that appellant was not a "full-blown" schizophrenic, led the defense psychologist to his diagnosis and his conclusion that appellant was unable to appreciate the wrongfulness of his act.
The prosecution psychiatrist, on the other hand, testified that although appellant was schizophrenic, paranoid type, his illness did not prevent him from functioning in society. In sum, the psychiatrist testified that appellant was capable of knowing that the shooting was generally considered wrong.
Appellant argues the trial judge coerced the jury into reaching a verdict after they told him they were deadlocked.
The case was submitted to the jury in the late afternoon of the sixth day of trial; after an hour and a half of deliberations the jury was excused for the night. The next day, a Friday, the jury deliberated a total of six hours and fifty minutes.
On Friday several notes were sent to the trial judge asking for information or clarification. The first asked for the definitions of first and second degree murder; the second stated they could not reach a decision on count one and asked for direction; the third again asked for the definitions of murder and the definition of "use of a gun"; the fourth again voiced an opinion they would be unable to reach a unanimous decision; the fifth asked that they be allowed to read part of the instructions; the sixth asked for a clarification of a part of the instructions; the seventh and last note of the day asked if the jury must unanimously agree on count one before considering count two. After each note counsel was consulted and given the opportunity to object before a response was formed and delivered. Unfortunately, the record of the consultations with counsel after each note from the jury was not made contemporaneous with the discussions on each note. This court has had to rely for its review on the record made of these events by court and counsel at a subsequent date. We disapprove of such practices because a contemporaneous record assures a more complete record which does not depend upon the memories of court and counsel, and it eliminates disputes about the matter stated and the actions taken. The defense counsel asserts that he asked the court to declare a mistrial after both the second and fourth notes and that he made a motion for a mistrial on count one after the jury had left for the weekend. For the purposes of this appeal, we will accept his assertion as a correct statement of his actions.
At approximately 4:50 p.m. Friday afternoon, the trial judge assembled the jury in open court prior to excusing it for the Arizona Rules of Criminal Procedure, Rule 22.4(b), 17 A.R.S., empowers the court to discharge jurors "[u]pon the expiration of such time as the court deems proper, [when] it appears that there is no reasonable probability that the jurors can agree upon a verdict...." (emphasis added). A trial judge is in the best position to determine whether there is a "manifest necessity" to declare a mistrial. Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 832, 54 L.Ed.2d 717, 728 (1978). A trial judge's finding there was a reasonable probability of a verdict will be accorded great deference on review.
[149 Ariz. 190] weekend. The jury, through the foreman, was asked if it felt progress could be made on count one. The foreman reported that progress was unlikely; no dissent to her view was made by any member of the panel. As to count two, however, the record reflects that there was some agreement among the panel members that progress could still be made on that count if deliberations continued. The trial judge asked the jurors and determined that returning on the following Monday would not present a hardship to any member of the jury panel. He then excused the jury until Monday to resume deliberations.
A review of the record shows that at the time that the jury was excused for the weekend, the total amount of time spent in deliberations had been a little over 8 hours, a not unreasonable time considering the 6-day length of the trial, the charges, and the defense involved. A significant number of the jury members expressed an opinion that progress could be made on count two. The trial judge determined from his inquiry of the jury that the return of the jury on Monday morning would not work any hardship on any member of the jury. Considering the circumstances presented to the trial judge at the time, we find no abuse of discretion in the denial of the motion for mistrial.
Appellant contends that the trial judge, without notifying counsel, modified a supplemental instruction which had been agreed to by counsel. The appellant claims that this action has the same legal effect as a communication to the jury without notice to counsel.
The record reflects that after the jury had been excused on Friday for the weekend, the foreman reminded the trial judge that the jury had not received an answer to its last two questions. A discussion with counsel followed and an understanding was reached to give the jury when it returned on Monday MARJI Instruction No. 204 (revised 4-15-71) and instructions on the method of proceeding if the jury found the defendant not guilty of first degree murder. The instructions read:
If the jury should unanimously find the defendant "Not Guilty" of 1st degree murder, then the jury must proceed to determine the guilt or innocence of the defendant as to 2nd degree murder.
A defendant in a criminal case is presumed by law to be innocent. The law does not require a defendant to prove his innocence or to produce any evidence.
The burden of proving the defendant guilty beyond a reasonable doubt rests upon the state. This burden never shifts throughout the trial.
The term "reasonable doubt" means a doubt based upon reason. This does not mean an imaginary or possible doubt. It is a doubt for which a reason can be given, arising from an impartial consideration of the evidence or lack of evidence. (It means a doubt that would cause a reasonable man to pause or hesitate when called upon to act upon...
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