State v. Gause

• Citation: 489 P.2d 830,107 Ariz. 491
• Decision Date: 19 October 1971
• Docket Number: No. 2099,2099
• Parties: The STATE of Arizona, Appellee, v. William GAUSE, Appellant.
• Court: Supreme Court of Arizona

Page 830

489 P.2d 830

107 Ariz. 491

The STATE of Arizona, Appellee, v. William GAUSE, Appellant.

No. 2099.

Supreme Court of Arizona, In Banc.

Oct. 19, 1971.

Rehearing Denied Nov. 9, 1971.

Gary K. Nelson, Atty. Gen., by William J. Schafer and William Dixon, Asst. Attys. Gen., Phoenix, for appellee.

Bernard I. Rabinovitz and William L. Berlat, Tucson, for appellant.

HAYS, Vice Chief Justice.

The appellant, William Gause, was tried and found guilty of the murder of his estranged wife, Mary Ellen Gause. He appeals from his first-degree murder conviction and sentence of death.

On or about the 6th of September, 1967, the body of Mary Ellen Gause was found in her automobile in the desert south of Tucson. A coroner's inquest was held, at which time appellant, his mother, and his brother, James, each testified that following the filing of a divorce action by Mary Elen on or about August 11, 1967, each of them took turns following the decedent home from work, hoping to discover evidence which could be used against her in the divorce proceeding.

All three witnesses testified at the inquest that on the night in question, September 3, 1967, appellant and his brother returned home to their mother's residence between 2:30 A.M. and 3:00 A.M. Appellant and his brother further testified that they saw the decedent alive and well at Sambo's Restaurant at approximately 1:30 A.M. They stated that following their arrival home, both went to sleep and did not arise until 8 o'clock in the morning.

No charges were then filed concerning the murder of Mary Ellen Gause and the case lay dormant until 1969. On or about January 30 of that year, the defendant's brother, James Gause, assaulted and beat his then pregnant wife, causing her to be hospitalized and possibly contributing to the eventual death of her baby soon after it was born. James negotiated an agreement with the County Attorney's Office whereby he would 'tell the truth' about the death of Mary Ellen in return for a granting of immunity against impending charges of perjury and any charges with respect to the aggravated assault of his wife and the death of his child. As a result of this agreement, a complaint was filed against William Gause for murder.

James Gause testified at the trial that he had lied at the coroner's inquest and that on the night in question, he had let his brother off at Mary Ellen's home and had returned to his mother's alone. He stated that later that morning he received a telephone call from appellant informing him that appellant had killed the decedent and instructing him to pick him up in the desert near Tucson.

Appellant raises several points in his appeal. The first of these concerns the failure of the judge who presided at the Rule 1 hearing to disqualify himself as the magistrate of the preliminary hearing. Appellant asked that the judge disqualify himself on the grounds that his failure to do so would be a denial of appellant's right to a fair and impartial hearing. Appellant argued that since the function of a magistrate at a preliminary hearing was to find probable cause to bind an accused over for trial, the prior finding of probable cause to issue a warrant for arrest operated to automatically prejudice the magistrate in his determination at the preliminary hearing. We do not agree.

This court has held in State v. Lubetkin, 78 Ariz. 91, 276 P.2d 520 (1954), that in the absence of a showing to the contrary, it will be presumed that a magistrate has performed his official duties pursuant to the law and his oath of office. The burden is on appellant to point to actual prejudice on the part of the magistrate. There is no presumption that by making a prior determination of probable cause to issue an arrest warrant, a magistrate cannot thereafter make an independent and unbiased determination of whether probable cause exists to bind a defendant over for trial.

Appellant next contends that he was not accorded a fair and impartial jury. He alleges that three prospective jurors were excused for cause for expressing views which opposed the imposition of the death penalty. The record shows that each of the three jurors stated unequivocally that he could not impose the death penalty under any circumstances.

Under the holding of Witherspoon v. State of Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), a juror may not be excluded for cause if he voices only 'general objections to the death penalty' or expressions of 'conscientious or religious scruples against its infliction.' He may be excluded, however, if he states that he would refuse to even consider its imposition in the case before him. Such was the position taken by each of the three jurors excluded for cause in the case at hand.

Appellant contends that the admission in evidence of the deceased wife's Will, expressing a fear that her husband would kill her, was reversible error. He further voiced objections at trial to testimony of witnesses who indicated that Mary Gause had expressed to them fear that her husband might kill her. Appellant argues that such evidence although showing the state of mind of the decedent as it relates to the identity of her murderer is not admissible. He concedes that if he had asserted defenses of suicide, self-defense or accident, the state of mind of the victim might properly be in issue.

Both the appellant and the State point to our case, State v. Izzo, 94 Ariz. 226, 383 P.2d 116 (1963), as being supportive of their respective contentions. In that case the defendant husband asserted a defense of accident when charged with the murder of his wife. The court admitted testimony to the effect that the wife on the night before the shooting did not go back to her apartment but stayed with a close friend. The court speaking through Justice Struckmeyer said:

'* * * The conduct is not hearsay. It is some evidence of the state of mind of the deceased the night before her death. Where the state of mind or feelings are an issue, evidence of actions and declarations at or near the time may be indicative thereof. (citing cases)' 94 Ariz. at 229, 383 P.2d at 118.

In People v. Markouris, 52 Cal.2d 672, 344 P.2d 1 (1959), the trial court had admitted testimony from witnesses who related expressions by the murder victims regarding their fear of the defendant. The California Supreme Court upheld the trial court saying:

'The trial court's rulings were correct. The victims' assertions of intent to avoid and protect themselves from defendant were admissible under the mental state exception to the hearsay rule as evidence that in fact they had such intent. The existence of that intent evidences the declarants' fear of defendant.

'The declarations that defendant had threatened the victims were admissible, not to prove the truth of that fact directly, but to prove the victims' fear.' 344 P.2d at 6

In State v. Vestal, 278 N.C. 561, 180 S.E.2d 755 (1971), the North Carolina Supreme Court upheld the action of the trial court in permitting the wife of the murder victim to testify regarding the deceased's statement of where he intended to travel on a business trip from which he never returned. The court in overruling one of their cases of early vintage said that this fell under an exception to the hearsay rule developed and accepted over a period of time. The North Carolina court held, however, that the trial court had erred in admitting in evidence a note written by the murder victim outlining a transaction involving the defendant and the victim and expressing the victim's anger with the defendant. We fail to apprehend some of the nice distinctions with which the courts play in applying the hearsay rule.

The Supreme Court of Wyoming in Alcala v. State, 487 P.2d 448 (Wyo.1971), upheld the trial court in permitting a witness who had transmitted a threat by the defendant husband to his wife to repeat the victim's words, 'This is not the first time; he has done this for years.' The main issue in the case was the identity of the murderer. The Wyoming court didn't bother to discuss the fact that this was evidence of the victim's state of mind and whether or not her state of mind was relevant to the issues in the case.

We note that in the cases on this and related points the courts often resort to strained logic to attain the desired result. In determining the identity of the person committing a murder, the fact that the victim had reason to fear the defendant has some probative value. The indicia of reliability of the hearsay statements are as certainly present on the question of identity as they are on the issue of accident or suicide. We fail also to grasp the attempted distinction regarding when the state of mind of the victim is or is not in issue. We are not impressed with pious instructions to the jury which tell them to consider the statements of the victim only for the purpose of determining the victim's state of mind.

Courts have tended to permit hearsay to be introduced in evidence when, for some reason or other, such evidence has a special reliability. Udall, Arizona Law of Evidence 355 § 174. In examining the evidence objected to here, we find that although it does not completely fit into any of the well recognized categories of exceptions to the hearsay rule, it does have a special reliability. $tA bald expression of fear by a murder victim standing alone does not have sufficient reliability to be admitted. In fact, if the victim were alive to testify, a foundation would be required before her expressions of fear would be admissible. There is considerable testimony in the record here to show that the victim had a valid basis for fearing her husband. Domestic problems, the filing of a divorce action, the necessity for a restraining order, the removal of the victim to a hotel until the husband vacated the house, and the threats to kill voiced by the defendant husband in the presence of others, all accord a special reliability.

Let us meet the problem...