State v. Jackson

• Decision Date: 10 March 1966
• Docket Number: Nos. 1302--A,s. 1302--A
• Citation: State v. Jackson, 100 Ariz. 91, 412 P.2d 36 (Ariz. 1966)
• Parties: STATE of Arizona, Appellee, v. R. E. JACKSON and Earnest Spurlock, Appellants. STATE of Arizona, Appellee, v. Jessie TILLIS and John Henry Lewis Jones, Appellants. to 1302--C.
• Court: Arizona Supreme Court

Page 36

412 P.2d 36

100 Ariz. 91

STATE of Arizona, Appellee, v. R. E. JACKSON and Earnest Spurlock, Appellants.

STATE of Arizona, Appellee, v. Jessie TILLIS and John Henry Lewis Jones, Appellants.

Nos. 1302--A to 1302--C.

Supreme Court of Arizona, In Banc.

March 10, 1966.

Rehearing Denied in 1302--B April 19, 1966.

Darrell F. Smith, Atty. Gen., Robert W. Pickrell, former Atty. Gen., Stirley Newell, former Asst. Atty. Gen., Charles N. Ronan, former Maricopa County Atty., for appellee.

Marilyn A. Riddel, Claude W. Olney, Jr., W. R. Peterson, Phoenix, for appellants R. E. Jackson and Earnest Spurlock.

Allen B. Bickart, Joseph T. O'Brien, Phoenix, for appellants Jessie Tillis and John Henry Lewis Jones.

McFARLAND, Justice.

Appellants R. E. Jackson, Earnest Spurlock, Jessie Tillis, and John Henry Lewis Jones, hereinafter designated defendants or R. E. Jackson, Spurlock, Tillis and Jones, were tried by a jury along with Clemmine Lee Jackson, also a defendant, hereinafter referred to as Clemmie Lee, for the crime of first-degree murder. The jury found defendants R. E. Jackson, Spurlock, Tillis and Jones guilty, and fixed sentence for the four at life imprisonment; and acquitted Clemmine Lee Jackson. The trial court denied defendants' motion for a new trial. From the conviction and sentence, and denials for a new trial, they appeal.

The evidence of defendants shows that one Samuel Resnick, deceased, told defendants he was dying of cancer, and because of his condition desired to take his own life. Defendant Clemmie Lee Jackson, who had previously lived in Texas, was eighteen years old at the time, and had come to Arizona to see if he could get a job. He was living with an aunt where his brother, defendant R. E. Jackson, lived. Prior to coming to Arizona Clemmie Lee's work had consisted of farm work such as chopping cotton and driving tractors. After arriving in Phoenix he placed an advertisement for work in the newspaper. The deceased, Samuel Resnick, answered the advertisement, telephoned Clemmie Lee, and asked him to come over--saying that he wanted to talk to him. Jessie Tillis, one of the defendants, went with him, but stayed in the car while Clemmie Lee went in to see Resnick. Clemmie Lee stated that Resnick said to him, "I am a sick man. I have the cancer--I am going to die--I want to die--the doctor can't help, and I can't stand these pains and I want you to kill me." Resnick informed Clemmie Lee that he wished the death to appear the result of a robbery, and offered Clemmie Lee jewelry (which he stated had a value in excess of $6,000) in exchange for this service. 'He told me that I could go in business with the rings and could make a business with a car wash.' He stated he told Resnick he would think about it, and contact him the next day. He went back home, but did not return, or contact Resnick the next day, but told his brother, R. E. Jackson, and the other defendants--Spurlock, Tillis and Jones, friends of R. E. Jackson--about the conversation. They asked him if he were going to do the job, and he told them no. The next day he received a telephone call from Resnick asking him why he had not come out, and why he hadn't called. He said he told Resnick he did not want that kind of job, and that Resnick said he had another job for him, and at Resnick's request he went out to see Resnick the next morning. Spurlock and Tillis went along with him, but they stayed in the car. Resnick told Clemmie Lee again he wanted him to kill him, and that it couldn't be with a gun because of the noise, but that it could be done with a rope. He stated that he would be walking down the street that evening, and they could pick him up.

In the early evening, the four defendants, accompanied by Clemmie Lee, were riding in defendant R. E. Jackson's car, discussing Resnick's plan. When defendants all informed Clemmie Lee they intended to talk with Resnick, Clemmie Lee requested that he be let out of the car, and this was done. The four defendants then met Resnick walking along West Glendale Avenue near his home, and picked him up. The five arrived in a remote part of the desert in north Phoenix. During this ride it was determined that a rope would be the means of taking Resnick's life. With his assistance, and two of the defendants on each end of the rope, an attempt was made to strangle Resnick, but the rope broke before this was accomplished. The rope was doubled and again wrapped around Resnick's neck. With all four defendants again pulling on the rope, this time they succeeded in causing death.

Pursuant to Resnick's instructions, defendants next removed jewelry and money from the deceased, and returned to their respective homes. All four defendants and Clemmie Lee subsequently made written confessions, later introduced in evidence at the trial.

This appeal was submitted in two separate briefs--one by Tillis and Jones, and one by Spurlock and R. E. Jackson. We shall first consider the assignments of error submitted by Tillis and Jones. They contend the lower court erred in denying their motion for severance and separate trials, and that the lower court abused its discretion in admitting the confessions of each of the co-defendants involved. Rule 254, Rules of Criminal Procedure, 17 A.R.S., provides:

'Trial of defendants jointly charged

'When two or more defendants are jointly charged with any offense, whether felony or misdemeanor, they shall be tried jointly, unless the court in its discretion on the motion of the county attorney or any defendant orders separate trials. In ordering separate trials, the court may order that one or more defendants be each separately tried and the others jointly tried, or may order that several defendants be jointly tried in one trial and the others jointly tried in another trial or trials, or may order that each defendant be separately tried.'

We have held that the granting of a motion for severance is within the discretion of the trial court. State v. Roberts, 85 Ariz. 252, 336 P.2d 151; State v. Smith, 60 Ariz. 305, 135 P.2d 879; State v. Sanchez, 59 Ariz. 426, 129 P.2d 923. It is not an abuse of this discretion for the court to deny motions for separate trials where confessions are to be admitted when it finds none of the defendants will be prejudiced by their admission under instructions to limit the consideration of each confession as evidence applicable only to the defendant who made it.

The confessions of all four defendants were essentially the same. All admitted participation in the crime. They all stated they knew Resnick wanted them to kill him before they stopped to commit the act. They all stated they met Resnick near his home at about 8:00 p.m., that Resnick got into the car, and they all went together to the scene of the crime on the desert, and that a rope was placed around Resnick's neck and all four pulled on the rope--that they had agreed with Resnick that this was the method by which he was to be killed. All stated the rope broke, was retied, and replaced around Resnick's neck, and for the second time all four pulled on the rope until they thought he was dead. All four stated defendant Tillis took the jewelry off Resnick after he was dead, and they then drove to their homes. The court in the instant case also carefully instructed the jury to limit the consideration of each confession as evidence applicable only to the defendant who made it. We hold the trial court did not abuse its discretion in denying defendants' motion for severance and separate trials.

Defendants Tillis and Jones, in their supplemental brief, contend that we should follow the rule set forth in the case of People v. Aranda, 47 Cal.Rptr. 353, 407 P.2d 265, decided since the trial of the instant case, reversing the rule set forth in People v. Andrews, 165 Cal.App.2d 626, 332 P.2d 408. In People v. Aranda, supra, defendants Aranda and Martinez were jointly charged and convicted of first-degree robbery. Martinez made a confession, but Aranda did not. The confession of Martinez was admitted in evidence. The court reversed the decision as to Martinez on the grounds that he had not been advised of his rights to counsel and to remain silent, and had not waived those rights, and that the same was inadmissible under the holding of the United States Supreme Court in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; and that since the case was tried before the Escobedo case, the court held that Martinez's failure to object to the admission of the confession at the trial did not deprive him of the right to raise the question on appeal.

The facts in the instant case are altogether different. Each of the four defendants, in his testimony, admitted substantially the same facts as set forth in his confession. The court held that the admission of Martinez's confession, in the Aranda case, was prejudicial against him. The state contended that inasmuch as the court had instructed the jury to consider the confession of Martinez as evidence only against Martinez it was not prejudicial to Aranda. However, the court held that since the confession linked the cases of the two defendants together it was prejudicial error to admit it. As we have pointed out, the facts in the instant case are altogether different from those of People v. Aranda, supra. In the instant case the testimony of each witness was substantially the same as the statements in his confession.

We do not say that a court in all cases should deny a motion for separate trials where confessions of defendants are to be introduced in evidence. The trial court in the exercise of its discretion should carefully examine the confessions which the state expects to introduce and in exercising its discretion determine whether the introduction of those confessions, even where the court instructs the jury to consider a confession only against the party making it, would prevent another defendant from receiving a fair and impartial...