State v. Hallman

• Decision Date: 24 June 1983
• Docket Number: No. 5614,5614
• Citation: 137 Ariz. 31,668 P.2d 874
• Parties: STATE of Arizona, Appellee, v. James Dewain HALLMAN, Appellant.
• Court: Arizona Supreme Court

Page 874

668 P.2d 874

137 Ariz. 31

STATE of Arizona, Appellee, v. James Dewain HALLMAN, Appellant.

No. 5614.

Supreme Court of Arizona, In Banc.

June 24, 1983.

Rehearing Denied Sept. 13, 1983.

Robert K. Corbin, Atty. Gen. by William J. Schafer, III, Crane McClennen, Asst. Attys. Gen., Phoenix, for appellee

Ross P. Lee, Maricopa County Public Defender by Michael G. Sullivan, Deputy Public Defender, Phoenix, for appellant.

FELDMAN, Justice.

Defendant, James Dewain Hallman, was convicted of first degree murder and attempted sexual assault, a dangerous felony. The trial court imposed a sentence of life imprisonment without possibility of parole for 25 years on the murder count, and the presumptive term of 7.5 years on the attempted sexual assault count to be served consecutively to the sentence of life imprisonment. Defendant appeals the convictions and the consecutive nature of the sentences. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and A.R.S. § 13-4031.

The murder victim, Daniel Art Geyer, age 33, owned a landscaping business. Defendant, age 18, worked for Geyer. Geyer and defendant were good friends and had what witnesses described as a father-son relationship. In August of 1981, defendant moved into Geyer's home, which Geyer shared with his girl friend, Mary Ann Meyers, and another friend, Don McMurtrey. After the defendant moved in, there were two incidents where he allegedly molested Meyers while she slept. After the second incident, Geyer and another friend confronted the defendant and gave him a beating. Defendant promised he would never do anything like that again.

On October 26, 1981, the evening before the murder, the group met at a neighborhood bar. Geyer went home early in the evening and McMurtrey followed shortly after. About an hour later, Meyers and defendant walked home together. When they arrived home, they found Geyer passed out on the living room couch. Meyers tried unsuccessfully to wake Geyer and finally covered him with a blanket, went alone to their bedroom and fell asleep. Meyers woke up around 3:00 a.m. when she discovered McMurtrey left for work around 5:30 that morning and as he left, Geyer woke up and said goodbye to him. Apparently Geyer fell back asleep. Sometime shortly after McMurtrey left, defendant woke up, took a gun from a nearby drawer, walked over to where Geyer was sleeping and shot him once in the head.

the defendant molesting her. Meyers screamed that if defendant touched her again she would "blow his hand off" with a gun. Defendant apologized. Meyers told him to get out of her room and went back to sleep.

Defendant then went to Meyer's bedroom, held a gun on her and ordered her to take off her clothes because he was going to rape her. Meyers convinced defendant that she needed a glass of water, and while he was out of the room she escaped and called the police.

Defendant left the scene in Geyer's truck, but returned a few hours later and was apprehended by the police.

On appeal, defendant claims that the trial court erred in:

(1) admitting into evidence a photograph of the victim;

(2) precluding defendant's expert witnesses from giving their opinions of defendant's mental condition at the time of the shooting;

(3) allowing the state to show bias and prejudice on the part of a defense witness;

(4) refusing to grant defendant's motion for mistrial;

(5) refusing to grant defendant's motion for judgment of acquittal on the felony murder charge;

(6) imposing consecutive sentences.

PHOTOGRAPH OF VICTIM

Defendant contends that the trial court erred in admitting a photograph of the victim. The photograph in question showed Geyer's head and the location of the bullet wound which was sutured shut. It also indicated a blackening of the victim's eyelids. There was a small amount of blood near the wound and on a towel under Geyer's head.

Evidence which may tend to inflame 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, 1215 (1983); State v. Gerlaugh, 134 Ariz. 164, 169, 654 P.2d 800, 805 (1982). The evidence may be necessary, for example, to show the identity of the victim, illustrate how the crime was committed, aid the jurors in understanding testimony or show the nature and location of mortal wounds if any of these matters are in question. State v. Chapple, supra; State v. Gerlaugh, supra. Before such evidence may be admitted, however, the trial court must determine whether its probative value outweighs any potential prejudice of the jury. State v. Chapple, supra. This determination involves consideration of evidentiary factors, is therefore within the sound discretion of the trial court and will not be disturbed absent an abuse thereof. Id.

In the instant case, we find that the trial court did not abuse its discretion in admitting the photograph of the victim. Initially, we do not believe that the photograph is gruesome or inflammatory. Even assuming some tendency to inflame, we think the photograph's probative value outweighed the improper potential. The defendant was charged with first degree murder, so the issues of premeditation and intent were present and contested. The photograph depicted the location of the bullet wound and the angle of entry of the bullet. A single bullet wound located squarely in the victim's right temple tends to indicate a careful and therefore deliberate act. Viewing the photograph, therefore, could have helped the jury determine whether the killing was premeditated. See State v. Hicks, 133 Ariz. 64, 69, 649 P.2d 267, 272 (1982).

In addition to the issue of premeditation, the photograph may have assisted the jury in understanding the testimony of the medical examiner. Defense counsel cross-examined the medical examiner about the absence We note that the trial court did exclude three photographs of the victim, finding that they were cumulative. The admission of all four may well have had an unfairly prejudicial effect on the jury. The trial court properly exercised its discretion, and we find no error.

of powder burns or powder tattooing on the victim. The significance of these matters relates to the distance of the gun from the skin when the shot was fired. The witness explained that he found no evidence of powder burns or tattooing, but emphasized that with gunshot wounds to the head, the hair tends to screen out some of the particles. Thus, the jurors could have used the photograph in weighing this portion of the medical examiner's testimony.

MOTION IN LIMINE

Defendant contends that prior to commencement of the trial, the trial court erred in granting the State's motion in limine to preclude any expert testimony regarding whether the defendant was acting "reflectively or reflexively," "impulsively," "without premeditation," "fearfully," "intoxicated" or in any manner during the alleged criminal offenses.

The proper admission of expert testimony depends upon "whether the subject of inquiry is one of such common knowledge that people of ordinary education could reach a conclusion as intelligently as the witness or whether, on the other hand, the matter is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." State v. Owens, 112 Ariz. 223, 227, 540 P.2d 695, 699 (1975).

Expert witnesses testified on behalf of the defense as to defendant's impulsive personality and that defendant had a tendency to act without reflection. Such evidence assists the trier of fact in recognizing character traits of the particular defendant and is a proper subject of expert testimony. State v. Christensen, 129 Ariz. 32, 35, 628 P.2d 580, 583 (1981). Arizona law is clear, however, that "[s]uch testimony may only be used as evidence that the defendant possesses such a trait and it must be left to the jury to determine whether and how the trait affected the defendant's specific intent at the time of the alleged crime." State v. Hicks, 133 Ariz. at 71, 649 P.2d at 274; State v. Christensen, 129 Ariz. at 35-36, 628 P.2d at 583-84; State v. Dickey, 125 Ariz. 163, 169, 608 P.2d 302, 308 (1980).

Nevertheless, the defendant claims the trial court cannot properly limit testimony before the testimony is offered. We disagree. Ariz.R.Evid. 103(c) provides:

In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.

The trial court limited the scope of the experts' testimony in order to comply with the dictates of State v. Dickey, supra and State v. Christensen, supra, and thus prevent "inadmissible evidence from being suggested to the jury." Accordingly, the trial court did not err in granting the State's motion in limine.

Finally, defendant argues that the language in the court's minute entry on this issue is "identical" to the language in the State's motion, thus indicating that the trial court merely acquiesced in the State's request and did not exercise sound discretion based on the applicable law and facts. We find this argument meritless. The record reflects extensive discussions prior to the ruling which granted the motion, thus refuting any claim that the trial judge failed to consider the law and the facts applicable to this issue. The record reflects the trial court's conscientious and reasoned application of clear legal precedent in this area. We find no abuse of discretion.

IMPEACHMENT

Defendant's brother, Robert Hallman, testified in his behalf. During cross-examination of Hallman, the State introduced evidence of Hallman's failure to honor a subpoena issued at the State's request. The A party against whom a witness is produced has a right to present evidence that may in the slightest degree affect the witness' credibility. State v. Trotter, 110...