State v. Jordan

• Decision Date: 13 March 1956
• Docket Number: No. 1071,1071
• Citation: 80 Ariz. 193,294 P.2d 677
• Parties: STATE of Arizona, Appellee, v. Richard Lewis JORDAN, Appellant.
• Court: Arizona Supreme Court

Page 677

294 P.2d 677

80 Ariz. 193

STATE of Arizona, Appellee, v. Richard Lewis JORDAN, Appellant.

No. 1071.

Supreme Court of Arizona.

March 13, 1956.

Clifton E. Bloom and Fred W. Fickett, Tucson, for appellant.

Robert Morrison, Atty. Gen., and L. Alton Riggs, Sp. Asst. to the Atty. Gen., for appellee.

WINDES, Justice.

Defendant Richard Lewis Jordan appeals from judgment finding him guilty of murder in the first degree and sentencing him to death.

On May 24, 1954, in the early evening, defendant visited the Club Esquire, a night club in Tucson, Arizona and at that time was introduced to one Phyllis Mae Thompson who had stopped at the Club to deliver a message to the manager. After about an hour, during which time defendant drank some beer and Miss Thompson a soft drink, they left the Club Esquire together and went to the Tropical Inn, also a night club in Tucson. Here defendant again drank some beer and Miss Thompson had a soft drink. At about 11:00 o'clock p. m. they returned to the Club Esquire for a short time and then went back to the Tropical inn. They left the Tropical Inn around one o'clock on the morning of May 25th.

About 4:30 o'clock in the afternoon of May 25th, the body of Phyllis Mae Thompson was found in the desert approximately six or seven miles from Tucson. The body was approximately 50 to 60 feet from the road and was completely disrobed except for the right shoe. There were 16 stab wounds in the chest area, four of which had penetrated the heart. Her face was mutilated by a number of knife incisions. Miss Thompson's clothing was found approximately 600 feet from the body.

Defendant was charged with the first degree murder of decedent. He pleaded not guilty and thereafter filed a notice of intent to make a defense of insanity at the time of the alleged commission of the offense charged; and also, a defense of alibi. Upon trial, the jury found the defendant guilty of murder in the first degree and fixed the penalty of death. From judgment and sentence entered upon this verdict and from order denying motion for new trial defendant appeals.

There are 23 assignments of error, 19 of which are that the county attorney made improper and prejudicial argument to the jury and the court erred in not instructing the jury to disregard the same. The other assignments are claimed error of the trial court in admitting evidence over defendant's objections.

In his address to the jury the prosecutor in persuading the jury to inflict the death penalty stated:

'I could be mercernary and talk to you about the finances of it. I don't think that the got any place in it but it must take five thousand dollars a year to maintain a prisoner up there. I may take twice that or half of that. If it takes five thousand dollars a year to guard him and feed him and take care of him, he has got a life expectancy of forty or fifty years, the taxpayers of Arizona are going to have to pay a quarter of a million dollars for the luxury of keeping him alive when he was done what he did and we can never again trust him outside the prison walls.'

Such argument is clearly indefensible as a reason for the infliction of the extreme penalty. The jury is given the discretion in such cases to impose life imprisonment or death, but such discretion must be based upon legitimate reasons and the expense of 'keeping him alive' is not a legitimate reason. The statement even goes further and assumes a fact not in evidence and which could not have been put in evidence, that it would probably cost the state five thousand dollars a year or an aggregate of about a quarter of a million dollars. As was well stated in Commonwealth v. Clark, 322 Pa. 321, 185 A. 764, 766:

'We have not reached the stage where men should be sent to the electric chair in order to avoid the expense of keeping them in the penitentiary. The defendant was on trial for his life and should not have had his cause prejudiced by intemperate remarks calculated to prejudice the jury and warp their judgment by the thought of the expense to the commonwealth which would affect them as taxpayers.'

Also, the county attorney said:

'Maybe you can wonder why or appreciate why perhaps Mr. Thompson and some of the other people in the case think maybe the death penalty is too good for him, think maybe he ought to suffer the way she suffered.'

This statement also injected in the minds of the jurors matters with which they should not be concerned in deciding the penalty. What a relative of the decedent or other people might think the penalty should be is not a matter to be considered. The jury exercises the discretion from the nature and gravity of the crime as disclosed by the legitimate evidence. The opinions of relatives and other people not members of the jury are not factors which the jury is entitled to consider in the rendition of its judgment imposing the penalty of execution. As in the first mentioned statement, there was not and could not be any evidence of these opinions. It is elementary that arguments must be based on facts which the jury is entitled to find from the evidence and not on extraneous matters that were not or could not be received in evidence.

There was evidence that several years prior to the time of the commission of the crime for which the defendant was on trial, he had been in various hospitals, both before and after his discharge from the service in the army and that his ailment had been diagnosed:

'Schizophrenic reaction, paranoid, manifested by ideas of reference, delusions of persecution, attitudes of hostility and aggression, derestic and autistic thinking, auditory and visual hallucinations and impaired insight and judgment incurred in a basically phychopathic personality make-up.'

There was evidence from which the jury could decide he was merely what the state's experts called a 'phychopathic personality' and which they testified was not insanity to the extent he did not know right from wrong or the nature and consequences of his act (legal test for insanity which will excuse an otherwise criminal act). In arguing the insanity issue the county attorney said:

'Here is the trouble: make no mistake about it; this business of temporary insanity is the darling and the pet of criminal lawyers, especially in the big cities for some very good reason. If you are only temporarily insane, you are really in good shape. * * *

'Let this soak in: The two best psychiatrists in the state of Arizona have said that Richard Lewis Jordan is sane today. If you bring in a verdict of not guilty by reason of insanity, he can't be punished and I can't lock him up or nobody else can lock him up. He will be out on the streets and maybe down at the Club Esquire drinking beer tomorrow night. Just keep that in mind. * * *

'In this business of law-enforcement, I think Frank Eyeman and I see about as many crazy people as anyone around except in a mental institution. You see all kinds. They have almost nothing in common. Some of them think they are the sheriff and some of them think they are this and that. Some of them don't know the time of day. Some think they are persecuted. Others don't care if they are persecuted or not. They all have one trait in common and that is that they all think they are sane. They will tell you they are sane; they want you to know they are sane. They are just as sane as you and I and I am probably crazy. Here is the only crazy man in the history of Pima County who will come in and tell you 'I am nuts, crazy, a maniac.' If you are crazy you don't think you are crazy. That is the first symptom and sign of it. Here is the only man in the history of Pima County I know of, the only crazy man that comes in and says, 'I am nuts and a maniac; you can't do a thing to me. I had a blackout'.'

These remarks concerning the defense of insanity were not legitimate argument. The jury was told that in the event they found defendant insane, there was no legal procedure for dataining him and that he would be immediately released. This was in incorrect statement. Section 44-1917, A.C.A.1939, provided that in the event a jury finds a defendant not guilty by reason of insanity at the time of the commission of the act, the court may then submit to another jury whether he is insane at the time of the verdict and, if so, he shall be committed to the state hospital for the insane. Likewise, article 3, chapter 8, 1952 Supp. and 1954 Supp.A.C.A.1939 (A.R.S. § 36-501 et seq.), provided a complete procedure whereby the county attorney or any other person could file an ...