State v. Hughes

Citation426 P.2d 386,102 Ariz. 118
Decision Date06 April 1967
Docket NumberNo. 1516,1516
PartiesSTATE of Arizona, Appellee, v. Charles HUGHES, Appellant.
CourtSupreme Court of Arizona

Darrell F. Smith, Atty. Gen., Phoenix, William J. Schafer III, Pima County Atty., Norman E. Green, Former Pima County Atty., Tucson, by Carl Waag, Former Deputy County Atty., Phoenix, for appellee.

W. Edward Morgan, Tucson, for appellant.

LOCKWOOD, Justice.

Defendant was convicted of attempted murder of his stepdaughter in violation of A.R.S. §§ 13--451 and 13--108. From the judgment of conviction and the sentence thereon of ten to fifteen years in the state penitentiary, he brings this appeal.

Defendant lived with his wife, his baby daughter, and the alleged victim, his wife's daughter by a previous marriage, Sherri Lynn Hoffman, aged three and one half years. On December 13, 1963, the defendant was driving his automobile, with Sherri Lynn as the only passenger, returning from Christmas shopping. On his way home, defendant made a left turn into a 'Triple B' market and crashed into it. Sherri Lynn was removed from the car, with a serious head injury. The cause of the crash was a complete brake failure. There was a conflict in the testimony as to whether the failure occurred immediately before impact or at some earlier time. There was also a conflict in the expert medical testimony as to whether the head injury suffered by Sherri occurred at the time of impact or at some earlier time. Shortly before the time of the 'accident' the defendant as beneficiary had purchased two policies of $15,000 each in life insurance on his step-daughter, and two similar policies on his own daughter.

Defendant first complains that it was prejudicial error for the trial court to admit evidence of a prior incident in which Sherri Lynn came close to drowning. The facts pertaining to this evidence appear as follows:

On November 3, 1963, the defendant took his family, together with his two sons by a prior marriage, who were visiting him, to Canyon Lake for an outing. The two boys were either four and five or five and six years old. The defendant rented a motor boat, and took his two sons and Sherri Lynn in the boat for a ride on the lake. Life jackets were placed on all three children. The testimony is conflicting as to who placed the life jackets on the children. The witness Ruiz, who was the attendant who rented the boat to defendant, testified that the attendant was supposed to put life jackets on people who rented boats, but he did not always do so, because some people liked to do it themselves. Ruiz said he placed and tied the life jackets on the two boys, and that defendant placed the jacket on Sherri Lynn. Ruiz did not know whether defendant tied the jacket as it should have been. Another witness testified that he saw the children in life jackets and noticed that Sherri Lynn's jacket was not tied. He called this to the attention of defendant who said he would attend to it.

The boat, which defendant rented, had four seats back to back, two facing the front of the boat and two facing the rear. Ruiz testified that the two boys sat in the rear seat and the defendant and Sherri Lynn sat in the front seat. The defendant, however, insisted that the front seat was occupied by himself and his younger son, Mark, while the older son, Kirk, was seated directly behind the defendant with Sherri Lynn sitting beside Kirk.

Defendant stated he drove the boat on the lake upstream for some distance. Some time later, before 3:30 P.M., he was seen by the witness Doyle about seven miles from the boat dock, coming back downstream. At this point on the shore line are cliffs which reach as high as three hundred feet, and the lake follows a canyon through spaces which are sometimes wide and sometimes very narrow and crooked. The witness Doyle was driving his boat approximately ten miles an hour towards the upstream canyon portion of the lake (where defendant had gone) when he observed defendant approaching Doyle's boat, 'at a fairly good rate of speed and with his hand waving in the air.' Doyle stopped and defendant came within twenty to thirty feet of Doyle's boat, at which time Doyle stated defendant asked 'Would my boat take him faster back to the landing than his.' Doyle replied that it would not as his mother was with him and she could not take the pounding on the water. Doyle stated defendant said his girl had fallen in the water up the canyon, and Doyle told defendant to go on for help and that he, Doyle, would go looking for the girl. Defendant left, heading in the direction called 'down the canyon' toward the boat dock.

Doyle proceeded slowly up the canyon, and saw a 'life jacket floating about three hundred yards off our right hand side.' He approached the life jacket slowly, looking in the water and was 'approximately a hundred yards from the life jacket' when he 'spotted a white object floating beneath the surface of the water, approximately a foot, two foot, under the water.'

Doyle approached this object slowly and determined that it was the body of a child floating face down in the water. He testified 'all you could see was the white shoe in the water.' With some difficulty, Doyle grabbed the girl by her hair and pulled her into the boat. He administered first aid for about twenty minutes before there was any sign of life, but at this point she began to twitch and artificial respiration was complete about twenty-five or thirty minutes after he recovered her from the water.

The life jacket was recovered by a person in another boat coming down the canyon. The person who recovered the jacket showed it to Doyle. Doyle testified that there were two strings to tie underneath the neck and that these strings were not tied when he saw the jacket. However there was a stomach strap which was tied or hooked. Both defendant and Doyle testified that the water was very dark and that it was difficult to see into it. Doyle stated that the water was 'very, very dark and you couldn't even see three feet into it.' Doyle further testified that when he returned to the boat dock area he met a boat containing a Deputy Sheriff and the defendant coming out of the area. Defendant immediately jumped into Doyle's boat and took Sherri Lynn in his arms, and after Doyle reached the landing, the defendant carried Sherri Lynn up the hill to where the mother was sitting in the parked car.

Defendant testified that he was unfamiliar with the lake area. He said he did not take his wife and their two month old infant daughter on the boat trip because he thought it would not be a good idea to have a new born baby out on the water and because his wife could not swim so he felt 'it would be better to have three in the boat rather than five.' Defendant testified that he could swim better than average. He stated that the attendant from whom he rented the boat, Ruiz, placed the life jackets on all three children. He further stated that the first time that he realized Sherri Lynn was not in the boat was when one of the boys said something to him about Sherri being gone or not being in the boat. He testified that he immediately looked in the boat and did not see Sherri. He stated:

'A. * * * that is when I looked back and I seen in the waves, because when the boat goes through it starts pushing the life jacket out, little waves. I seen it floating, so I immediately made a u-turn. I took my shoes off and hollered for the boys to lay down in the boat, the bottom of the boat. I went back, and I was standing high up by the driver's side, by the steering wheel. I was ready to dive in. I had the throttle back on the boat. I was ready to dive in. However Sherri was not in the life jacket.

'Q. Were you able to see her anywhere around the lake?

'A. Absolutely not. I searched and searched for her. I did not see her.

'Q. What actually did you do in looking for her?

'A. As soon as I got back to the life jacket and could not see her, of course I looked around in the immediate area. Now this, bear in mind it was in the late afternoon to where the water was shadowed. The water appeared to be very heavy or very dirty. I don't think you could see very far into it.

'Q. What did you do after you saw you were unable to spot Sherri?

'A. Well, right at that time when I could not spot her, the first thing to my mind was, does a body come up three times as I have heard before on the T.V. and so forth, or whether it means adults or also a child. I moved the boat into a different position. I moved up on the seat of the boat and tried to peer down into the water within a twenty, thirty foot radius of the life jacket. The boys were standing up, too. I asked them to be looking. I searched there I would say approximately two minutes. I moved the boat again into a different position and again looked at the water through an angle.

'Q. What did you do then?

'A. I was really convinced in my mind then she had drowned, so I wanted to get help.

'Q. What did you do to get help?

'A. I headed back down the canyon. Originally there had been people setting along the canyon, along the sides. I went back to see the first boat or first party, anybody I could get help.'

He testified that he searched for Sherri Lynn in a radius of thirty feet of where the life jacket was, for about five minutes, and then was convinced that she had drowned, so headed back to 'find help'.

Defendant testified he met the witness Doyle about three quarters of a mile from the place where the life jacket was sighted, and after the conversation between them regarding whether Doyle could go faster for help, defendant followed Doyle's suggestion to go back to the dock to get help while Doyle went to look for the girl.

Defendant ran his boat aground on the shore and ran to tell his wife what had happened. A doctor was present and gave the defendant's wife a hypodermic. A deputy sheriff approached about that time and Hughes explained what had happened....

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    ...SeeAriz. R. Evid. 404 cmt. to 1997 amend.; see also Terrazas, 189 Ariz. at 582–83, 944 P.2d at 1196–97 (suggesting State v. Hughes, 102 Ariz. 118, 426 P.2d 386 (1967), established clear and convincing standard prior to adoption of Arizona Rules of Evidence). Perhaps as a result, Little neve......
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