State v. Hunter, 5466

Citation664 P.2d 195,136 Ariz. 45
Decision Date13 April 1983
Docket NumberNo. 5466,5466
PartiesSTATE of Arizona, Appellee, v. Michael Allen HUNTER, Appellant.
CourtSupreme Court of Arizona

Robert K. Corbin, Atty. Gen., William J. Schafer III, Chief Counsel, Criminal Division, Linda A. Akers Asst. Atty. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender, James R. Rummage, Deputy Public Defender, Phoenix, for appellant.

GORDON, Vice Chief Justice:

On October 27, 1981, appellant was found guilty of first degree murder in violation of A.R.S. § 13-1105, and unlawful use of a means of transportation in violation of A.R.S. § 13-1803. Appellant was sentenced to life without possibility of parole for 25 years for murder, and a term of 1.875 years for unlawful use of a means of transportation. Appellant challenges the murder conviction but not the unlawful use of a means of transportation conviction. This Court has jurisdiction under Ariz.Const. art. 6, § 5(3) and A.R.S. §§ 13-4031 and 13-4033. The judgment of conviction and sentence for murder is reversed and the case is remanded.

The victim in the instant case, Rondo Ray (Bill) Demint, was appellant's ex-father-in-law. On April 12, 1981, the day of the stabbing, appellant called the Demint home saying he had some pictures for his ex-wife and asking if he could bring them over. Appellant arrived at the Demint home without any pictures. In a period of about an hour appellant excused himself to go to the bathroom three times, each time staying in the bathroom an unusually long time. The third time he went to the bathroom appellant called Bill Demint to the bathroom saying there was water on the floor from a broken faucet. Bill Demint hurried down the hall followed closely by his wife. When Mrs. Demint reached the bathroom a few seconds behind her husband she saw appellant hitting Bill Demint. Mrs. Demint ran back into the living room and got a gun from a desk drawer. She saw appellant emerging from the hallway and fired a shot in his direction. She then ran from the house, stationed herself where she could watch both doors of the house, and screamed to her neighbors to call the police. The police arrived and took Mrs. Demint to her neighbor's porch to find out what was happening.

In the meantime, appellant ran out the back door of the house. He climbed over the back yard fence and accosted several people on the street in an effort to get some car keys or a ride out of the neighborhood. He finally secured a set of keys and a car and sped out of the neighborhood. He was arrested without incident a few hours later.

When police entered the Demint home they found the victim in a pool of blood in the kitchen. The house showed signs of a struggle. There was a pair of scissors next to the body and a bloody hunting knife in the den. The police immediately seized the hunting knife but not the scissors. It was later determined that the victim had suffered several stab wounds, two of which would have been fatal. One was a chest wound apparently caused by a knife, and the other was an abdominal wound consistent with the pair of scissors.

As the police were concluding their investigation a friend of the family arrived at the house in order to clean it up before Mrs. Demint returned. With a police detective present, and with his permission, the friend picked up the scissors from beside the body, wiped them off with a towel, and put them on a kitchen counter. Several hours later the police determined that the scissors may have been significant, and a detective returned to the house and seized them.

At trial appellant claimed that he killed the victim in self defense. According to appellant, he brought a pair of scissors to the Demint home hoping to have Bill Demint sharpen them on his knife sharpening equipment. When he went to the bathroom the third time he found water on the floor, cleaned some of it up, and called Bill Demint. When Bill Demint got to the bathroom appellant handed him the scissors and asked him to sharpen them. Bill Demint took some apparently playful swipes at appellant with the scissors and appellant shoved him into the doorjamb. Bill Demint then yelled to his wife to get a gun. Appellant claims that he headed toward the living room but was forced back down the hall by Mrs. Demint threatening him with a gun. Appellant then heard Mrs. Demint leave the house and he went into the living room and tried to leave the house through the kitchen door. Bill Demint followed appellant and blocked his way out of the house. Bill Demint attacked appellant with the scissors and appellant defended himself with a knife he grabbed from a wall display. Appellant testified that he moved back into the living room and was shot at by Mrs. Demint who had re-entered the house. He then headed back down the hallway and into the den. He waited until Mrs. Demint left the house again and escaped through the kitchen and out the back door.

At trial appellant made a motion for a judgment of acquittal of first degree murder on the ground that the state failed to introduce sufficient evidence of premeditation. The motion was denied. Appellant now claims the denial of his motion was error.

Under Ariz.R.Crim.P. 20, a judgment of acquittal prior to verdict may be entered only if there is no substantial evidence to warrant a conviction. State v. Clow, 130 Ariz. 125, 634 P.2d 576 (1981). Substantial evidence is evidence from which reasonable people could find the defendant guilty beyond a reasonable doubt. State v. Franklin, 130 Ariz. 291, 635 P.2d 1213 (1981). "A trial court should not grant a motion for judgment of acquittal 'if reasonable minds can differ on the inferences to be drawn from the evidence.' " State v. Jimenez, 130 Ariz. 138, 141, 634 P.2d 950, 953 (1981) (quoting from State v. Superior Court, 128 Ariz. 216, 223, 624 P.2d 1264, 1271 (1981)).

In the instant case appellant claims that there was not substantial evidence of premeditation. In a first degree murder prosecution the state must prove beyond a reasonable doubt that the killing was premeditated. State v. Lacquey, 117 Ariz. 231, 571 P.2d 1027 (1977); see State v. Dickey, 125 Ariz. 163, 608 P.2d 302 (1980).

"In order to show premeditation, the state must prove that the defendant acted with either the intention or the knowledge that he would kill * * *, and that such intention or knowledge preceeded the killing by a length of time to permit reflection."

State v. Moya, 129 Ariz. 64, 66, 628 P.2d 947, 949 (1981). The necessary premeditation may be as instantaneous as successive thoughts of the mind and may be proven by either direct or circumstantial evidence. Id.; State v. Lacquey, supra.

In the case at issue there was sufficient evidence from which the jury could find premeditation. There was evidence that about a year before the killing appellant, referring to the victim, said, "that fat bastard, I'm going to get him one of these days." The evidence further indicated that when appellant called the Demints on the day of the killing he gave as his reason for visiting that he had some pictures for his ex-wife. When he arrived he had no pictures with him. He did, however, bring the scissors which caused one of the victim's fatal wounds. After arriving at the Demint home appellant excused himself to go to the bathroom three times in a period of about an hour and stayed in the bathroom an unusually long time. While he was in the bathroom the third time appellant called the victim into the bathroom saying there was a broken faucet and water all over the floor. Mr. and Mrs. Demint hurried down the hall to the bathroom and when Mrs. Demint arrived, just seconds after her husband, appellant was striking Mr. Demint. After the stabbing, there was no indication of water on the floor and the plumbing was in perfect working order. This evidence could lead a reasonable person to infer that appellant decided to kill the victim, invented a pretext for visiting the Demints, secured a weapon, went to the Demints' home, lured Mr. Demint into the bathroom with a phony story about a water leak, and attacked and killed him. Consequently, the trial court was under no duty to grant appellant's motion for a judgment of acquittal.

At the state's request the trial court in the instant case instructed the jury as to flight or concealment. The judge gave RAJI 1.12 which provides:

"Running away or hiding after a crime has been committed does not in itself prove guilt. You may consider any evidence of the defendant's running away or hiding, together with all the other evidence."

Appellant's second claim of error involves this instruction. He argues that the giving of this instruction was error. We find that it was not.

Analytically, flight or concealment is viewed as an admission by conduct. This view is based on the notion that by fleeing the scene of a crime or by concealing oneself to avoid arrest, one manifests a consciousness of guilt. This consciousness of guilt, in turn, gives rise to an inference of actual guilt.

In determining whether a flight instruction is appropriate the evidence must be examined for the presence of either of two factors. First, the manner in which the accused left the scene is examined in order to determine whether it was indeed flight. State v. Smith, 113 Ariz. 298, 552 P.2d 1192 (1976). Leaving the scene is considered flight only if the manner of leaving suggests consciousness of guilt. 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); State v. Smith, supra. For example, running away from the scene as upon open pursuit, rather than walking, normally suggests consciousness of guilt. State v. Lujan, 124 Ariz. 365, 604 P.2d 629 (1979). If the manner of leaving the scene suggests consciousness of guilt then a flight instruction is proper. Id.

If the manner of leaving the scene does not suggest consciousness of guilt, or if...

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