State v. Grilz

• Decision Date: 14 June 1983
• Docket Number: No. 5345,5345
• Citation: 666 P.2d 1059,136 Ariz. 450
• Parties: STATE of Arizona, Appellee, v. Gordon Lorey GRILZ, Appellant.
• Court: Arizona Supreme Court

Page 1059

666 P.2d 1059

136 Ariz. 450

STATE of Arizona, Appellee, v. Gordon Lorey GRILZ, Appellant.

No. 5345.

Supreme Court of Arizona In Banc.

June 14, 1983.

Robert K. Corbin, Atty. Gen. by William J. Schafer, III, Chief Counsel, Crim. Div., Jack Roberts, Asst. Attys. Gen., Phoenix, for appellee.

Lewis & Roca by Jordan Green, Edward F. Novak, Christine A. Coffey, Phoenix, for appellant.

GORDON, Vice Chief Justice:

On May 14, 1981, appellant was convicted of one count of first degree murder in violation of A.R.S. § 13-1105 and one count of second degree murder in violation of A.R.S. § 13-1104. On June 9, 1981 he was sentenced to life imprisonment for first degree murder and twenty-one years imprisonment for second degree murder. The sentence for second degree murder was enhanced under A.R.S. § 13-604. This Court has jurisdiction under Ariz. Const. art. 6, § 5(3) and A.R.S. §§ 13-4031 and 13-4033. The judgments of conviction are affirmed. The sentence for first degree murder is affirmed. The case is remanded for resentencing in connection with the second degree murder conviction.

The victims in the instant case were Linda Grilz, appellant's estranged wife, and Kim Hopfinger, a friend of Linda's. On January 5, 1981, at approximately 9:00 p.m. appellant went to Linda Grilz' trailer home. Kim Hopfinger was there when appellant arrived. The three of them became involved in an argument in the front yard of the trailer. Appellant then shot Kim Hopfinger three times in the chest with a .22 caliber pistol. After Hopfinger had fallen down appellant shot him once more in the back of the head with a .30-30 rifle.

Apparently as appellant was shooting Hopfinger Linda went into the house and called the Sheriff's Department for help. The evidence indicated that while she was on the phone appellant forced his way into the trailer and shot her four times in the head with the .30-30.

After the shooting appellant called the Sheriff's Department from the phone in the trailer. A tape recorder attached to the telephone equipment at the Sheriff's Department recorded the call made by Linda Grilz and continued to run. When appellant called, approximately two minutes later, the call was recorded on the same tape.

When Sheriff's deputies arrived at the shooting scene appellant surrendered to them in the front yard. The deputies found appellant's .22 caliber pistol in the street by the house, the body of Kim Hopfinger and the scabbard from appellant's .30-30 in the front yard, and the body of Linda Grilz and the .30-30 in the kitchen of the trailer.

At trial appellant raised the defense of insanity based on prolonged drug and alcohol abuse. At appellant's request the jury was instructed on insanity and voluntary intoxication.

On appeal, appellant argues: (1) some photographs of the shooting scene and a part of the Sheriff's Department tape recording should not have been admitted into evidence; (2) the jury instructions given by the trial court denied him a fair trial; and (3) his sentence for second degree murder was improperly enhanced.

Photographs and Tape Recordings

A number of photographs of the shooting scene and a tape recording of Linda Grilz' call to the Sheriff's Department were admitted into evidence at appellant's trial. Appellant objected to the admission of part of the tape and seven of the photographs. On appeal he argues that the photos and the tape were irrelevant or, if relevant, their probative value was outweighed by the danger of unfair prejudice they created. Evidence of a type that may tend to arouse the emotions of the jury may be admitted if it is relevant, and if its probative value outweighs the danger of unfair prejudice caused by its admission. State v. Chapple, 135 Ariz. 281, 660 P.2d 1208 (1983); State v. Gerlaugh, 134 Ariz. 164, 654 P.2d 800 (1982); State v. Navarre, 132 Ariz. 480, 647 P.2d 178 (1982). Moreover, the decision to admit such evidence is within the discretion of the trial court and will not be disturbed unless that discretion is abused. State v. Chapple, supra; State v. Clark, 126 Ariz. 428, 616 P.2d 888, cert. denied 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980).

Applying this test to the photos admitted in the instant case we find no abuse of discretion. Four of the seven photographs show the outside of the trailer from different angles and include the body of Kim Hopfinger. In two of the photos the body is covered with a blanket. One of the photos includes a side view of the victim and shows some blood.

The other three photographs were taken inside the trailer and show, among other things, the body of Linda Grilz from different angles. None of them shows the victim's head wounds but two of them show a great deal of blood on the floor and some blood spattered on the refrigerator, while the other one shows blood, bone, and tissue spattered about.

We do not find the four photos taken outside the trailer to be particularly gruesome or inflammatory. The photos taken inside the trailer, on the other hand, are of the sort that may tend to arouse emotions. We find, however, that their admission was proper.

Appellant raised the defense of insanity. The state's theory of the case was that appellant's actions were deliberate and premeditated, not the acts of one who did not know the nature of his acts or did not know right from wrong. In support of this theory the prosecutor argued that the physical layout of the scene and the distances from the street where appellant's car was parked, to the front yard where Kim Hopfinger's body and the rifle scabbard were found, to the screen door that was forced open, and to the kitchen where Linda Grilz' body and the rifle were found were such that appellant must have been aware of what he was doing as he did it, and had ample time to premeditate. The photos depict the physical layout of the scene and the distances between these objects. Consequently, they tend to corroborate the state's theory of the killings and are relevant. State v. Caldwell, 117 Ariz. 464, 573 P.2d 864 (1977); State v. Thomas, 110 Ariz. 120, 515 P.2d 865 (1973). Furthermore, we cannot say that the three photos taken inside the trailer are so inflammatory that the trial court could not have concluded that the probative value outweighed the danger of unfair prejudice attendant to their admission. Consequently, the admission of the photos was not error.

We reach the same conclusion with respect to the tape recording. The tape covers a period of about six minutes. The first ten seconds of the tape is Linda Grilz asking the officer on the phone to send the sheriff to the trailer. The officer then transfers the call to the regular dispatcher. The tape continued to run and after about two minutes appellant's call to the sheriff came through. Appellant gives the address of the trailer, tells the dispatcher that he has just killed two people, and pleads for help. Appellant objects to the part of the tape with Linda Grilz' voice.

We agree with appellant that the objected to portion of the tape is the type of evidence that may tend to arouse jurors' emotions. We also agree with the state, however, that the facts and the time frame established by the entire tape is relevant to the issue of sanity. The part of the tape with Linda Grilz' voice establishes a point in time before she was shot. The part with appellant's voice established a point in time after she was shot, and indicates appellant's state of mind at the time. The tape in its entirety indicates that no more than two minutes after appellant shot Linda Grilz he knew where he was, what he had done, and, judging by his tone of voice, that it was wrong. This evidence of appellant's state of mind minutes after the shootings is very probative of his state of mind at the time of the shootings. Moreover, we cannot say the tape was so inflammatory that the trial court could not have found the tape's probative value to outweigh any danger of unfair prejudice its admission may have caused.

INSTRUCTIONS

Appellant claims that the instructions given at his trial were improper for a host of reasons. Each of appellant's arguments are addressed below. Initially, however, it must be noted that the instructions appellant now objects to were formulated at an "informal and off the record discussion" involving the trial judge, defense counsel, and the prosecutor. The record establishes that this discussion was held with defense counsel's wholehearted approval, and defense counsel agreed to the instructions given. ¹ Appellant, therefore, is in the position of claiming error based on instructions his counsel had a hand in preparing and specifically approved. If a defendant does not object to an instruction then any error is waived unless it rises to the level of fundamental error. State v. Mincey, 130 Ariz. 389, 636 P.2d 637 (1981), cert. denied, 455 U.S. 1003, 102 S.Ct. 1638, 71 L.Ed.2d 871 (1982); State v. Dippre, 121 Ariz. 596, 592 P.2d 1252 (1979); Ariz.R.Crim.P. 21.3(c). Error is fundamental only if it "goes to the foundation of the case, or ... takes from a defendant a right essential to his defense." State v. Mincey, 130 Ariz. at 397, 636 P.2d at 645 (quoting State v. Pulliam, 87 Ariz. 216, 222, 349 P.2d 781, 785 (1960)). "It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court." Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203, 212 (1977).

Appellant's first claim of error concerning jury instructions involves the part of the insanity instruction referring to the presumption of sanity. The jury was instructed as follows:

"The defendant is presumed to have been sane at the time the offense was committed. Once sufficient evidence has been presented to raise the question of the defendant's sanity at the time of the offense, the state must prove beyond a reasonable doubt that the defendant was sane."

Appellant's...