State v. Griffin

• Decision Date: 08 October 1965
• Docket Number: No. 1489,1489
• Citation: 406 P.2d 397,99 Ariz. 43
• Parties: STATE of Arizona, Appellee, v. Leonis Johnny GRIFFIN, Appellant.
• Court: Arizona Supreme Court

Page 397

406 P.2d 397

99 Ariz. 43

STATE of Arizona, Appellee, v. Leonis Johnny GRIFFIN, Appellant.

No. 1489.

Supreme Court of Arizona, In Banc.

Oct. 8, 1965.

Darrell F. Smith, Atty. Gen., Robert W. Pickrell, Former Atty. Gen., Phoenix, Norman E. Green, County Atty., of Pima County, Carl Waag, Deputy County Atty., Tucson, for appellee.

Sidney L. Kain, Fred R. Sands, Tucson, for appellant.

LOCKWOOD, Chief Justice:

On November 18, 1963, the County Attorney of Pima County, in a three count information, charged the defendant-appellant Leonis Johnny Griffin with (1) the crime of murder of Thomas Francis Mulrow, (2) assault with intent to commit the murder of the defendant's wife, Beverly Griffin, and (3) assault with intent to commit the murder of Charles G. Nichols, Jr. The case was tried to a jury which found the defendant guilty of (1) murder in the second degree of Thomas Francis Mulrow, (2) assault with intent to commit the murder of Beverly Griffin, and (3) not guilty of assault with intent to commit the murder of Charles Gilbert Nichols, Jr. Thereafter, on February 25, 1964, the court sentenced the defendant to imprisonment in the State Prison for the term of not less than ten years and not more than fifteen years for the assault with intent to commit murder of Beverly Griffin, and to imprisonment in the State Prison for the rest of his natural life for the murder in the second degree, the sentences to run consecutively in the order stated. Defendant has appealed from the final order of judgment made and entered and from the sentence.

According to our well established rule, we must consider the facts in the light most favorable to sustaining the conviction. Defendant and Beverly Griffin were married at Lincoln, Nebraska approximately nine years prior to the date of the offenses charged. They had many marital difficulties and had separated and reconciled numerous times. During the course of their marriage they had four children. While they were living together, prior to moving to Tucson, Beverly obtained a divorce from the defendant. The defendant was unaware that the divorce decree had been issued, and they continued to live together.

Shortly prior to the date of the alleged crimes Beverly Griffin moved to Tucson to live with a sister. Defendant followed Beverly to Tucson and they resumed living together. About a week before the date of the crimes charged, they had difficulties and the defendant moved out of their apartment. These marital difficulties arose from the fact defendant objected to Beverly's working as a barmaid. However, during this period of separation the defendant and Beverly spent a number of nights together in an automobile parked in the desert.

During this same period of time, while she was employed as a barmaid, Beverly became acquainted with Charles Gilbert Nichols, Jr. and invited him to visit her. On October 26, 1963, the date of the alleged crimes, at approximately two o'clock in the afternoon, Nichols, together with the deceased Mulrow, visited Beverly at her apartment. They talked in the apartment and drank beer, becoming intoxicated.

Defendant, while driving a truck for his employer, a bakery, rode past the apartment and saw a strange automobile parked in front. He went in and said that he wished to talk to his wife in private. The two men refused to leave, and forcibly put him out. Defendant exhibited a pocket knife, but did not attempt to use it on either of them.

After the defendant had completed a day's work, between three and four o'clock in the afternoon, he bought a .22 caliber pistol, took a taxi cab, and returned to the apartment, where his wife and two men remained. Once inside the apartment, an altercation ensued. Nichols arose. The defendant fired a shot over Nichils' head and Nichols sat dowm. Defendant claimed that Mulrow advanced toward him, whereupon the defendant shot Mulrow. This shot resulted in Mulrow's death. Immediately after the shot the defendant's wife ran out of the apartment. The defendant ran after her, shooting at her. The defendant then walked to the bar at which his wife was employed and exhibited the gun to the owner of the bar and a man by the name of James W. Kaufman. He told them that he shot his wife and another man.

There is testimony that the defendant could not keep jobs and had had financial difficulties. Two days prior to the crimes charged the defendant's wife had filed a sanity petition against defendant seeking to have defendant placed under observation because she believed him to be mentally ill.

During the course of the trial the defendant raised the issue of self-defense with regard to the shooting of Mulrow, and the court instructed the jury on such issue. Defendant attempted to present testimony of Mulrow's reputation in the community for the character traits of argumentativeness, belligerence and quarrelsomeness. Upon objection, defendant made an offer of proof to the effect that when Mulrow was sober he was a very mild mannered person, very polite, nice to talk to and very intelligent, but when under the influence of alcohol he was arrogant and belligerent. The court refused to permit the testimony. This was error.

This court in Mendez v. State, 27 Ariz. 82, 229 P. 1032 (1924) stated:

'It is the rule that where it is questionable as to which was the aggressor, or where the state of mind of defendant at the time of the affray is in issue under the claim of justification, that the general reputation of the deceased as a dangerous, turbulent, and violent man may always be shown.'

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'The trend, * * * of the more recent decisions appears to be in the direction of allowing to go before the jury evidence of particular acts of violence and turbulence by the deceased towards third persons, when such acts may legitimately and reasonably be of aid to the jury in determining whether defendant's claim of self-defense was bona fide and rooted in an honest belief of impending danger at the time he acted.'

And in Lawrence v. State, 29 Ariz. 247, 240 P. 863 (1925) we said:

'[E]vidence that the deceased had a disposition of a nature which might have caused him to be the assailant is admissible for the sole purpose of showing who was the aggressor * * *.' See also Lepker v. State, 40 Ariz. 186, 11 P.2d 351 (1932).

The United States Supreme Court in Smith v. United States, 161 U.S. 85, 16 S.Ct. 483, 40 L.Ed. 626 (1895) held that:

'[E]vidence that the deceased had the general reputation of being a quarrelsome and dangerous person, was competent, * * *.'

In Evans v. United States, 107 U.S.App.D.C. 324, 277 F.2d 354 (1960) the court held that evidence to the effect that the decedent was aggressive when drunk, upon a plea of self-defense, though unknown to the defendant is admissible.

See also 1 Wigmore § 63:

'When the issue of self-defense is made in a trial for homicide, and thus a controversy arises whether the deceased was the aggressor, one's persuasion will be more or less affected by the character of the deceased; it may throw much light on the probabilities of the deceased's action: * * *. [The] additional element of communication is unnecessary; for the question is what the deceased probably did, not what the defendant probably thought the deceased was going to do. The inquiry is one of objective occurrance, not of subjective belief.' (Italics in original.)

The court in this case, where the issue of self-defense was raised, improperly excluded the evidence of the reputation of the deceased for belligerence, aggressiveness and quarrelsomeness while intoxicated even though such character traits were uncommunicated to the defendant.

The defendant claims that the trial court committed error in not allowing defendant to testify to his personal history during the nine years of his marriage, holding that such testimony was too remote. The defendant also claims that the court erred by not allowing a psychiatrist, who testified that at the time of the shooting of Mulrow and the defendant's wife that the defendant did not know the difference between right and wrong, to testify with regard to the facts and circumstances in the defendant's background and the defendant's mental defects or abnormalities upon which the psychiatrist based his ultimate opinion.

As is said in 2 Wigmore, Evidence § 228:

'Sanity and insanity are terms applicable to the mode of operation of the mind as judged by some accepted standard of normality. The mode of operation of the mind is ascertainable from the conduct of the person in question, i. e. from the effect produced by his surroundings on his mind when responding by action to those surroundings. Virtually, then, the mind is one, while the surroundings are multifold; and the mode of operation cannot be ascertained to be normal or abnormal except by watching the effects through a multifold series of causes. On the one hand, no single act can be of itself decisive; while, on the other hand, any act whatever may be significant to some extent.

'The first and fundamental rule, then, will be that any and all conduct of the person is admissible in evidence. There is no restriction as to the kind of conduct. There can be none; for if a specific act does not indicate insanity it may indicate sanity. It will certainly throw light one way or the other upon the issue. 'Upon this I believe that no difference of opinion will be found to exist,' said Mr. Justice Patterson, in a celebrated case, 'as to the principle on which such evidence is admissible; Every act of the party's life is relevant to the issue.' [Referring to Wright v. Tatham, 5 Cl. & F. 670, 715 (1838)]. There can be no escape from this consequence. There is no distinction in kind (whatever there may be in degree) between one or another piece of conduct as evidence to be considered; some inference is always possible.' (Italics in original.)

As we said in State v. Crose, 88 Ariz. 389, 357 P.2d 136 (1960) where the defendant raises the...