State v. Just, 1

• Decision Date: 11 October 1983
• Docket Number: CA-CR,No. 1,1
• Citation: 138 Ariz. 534,675 P.2d 1353
• Parties: STATE of Arizona, Appellee, v. Allan Harold JUST, Appellant. 5560.
• Court: Arizona Court of Appeals

Page 1353

675 P.2d 1353

138 Ariz. 534

STATE of Arizona, Appellee, v. Allan Harold JUST, Appellant.

No. 1 CA-CR 5560.

Court of Appeals of Arizona Division 1, Department A.

Oct. 11, 1983.

Reconsideration Denied Nov. 16, 1983.

Review Denied Jan. 17, 1984.

Robert K. Corbin, Atty. Gen. by William J. Schafer III, Chief Counsel, Crim. Div., Crane McClennen, David R. Cole, Asst. Attys. Gen., Phoenix, for appellee

Shultz, Worischeck & Shapiro, P.C. by Myron Shapiro, and Ross P. Lee, Maricopa County Public Defender by Michael G. Sullivan, Deputy Public Defender, Phoenix, for appellant.

OPINION

CORCORAN, Judge.

Appellant brings this appeal from his conviction of second degree murder, a class 2 dangerous felony, ¹ following a trial by jury, and his aggravated sentence of 15 years. He raises eight issues for this court's consideration: 1) Whether the trial court erred in denying his motion for a redetermination of probable cause; 2) whether the trial court erred in not ruling that appellant had an additional peremptory jury challenge; 3) whether the trial court improperly admitted hearsay testimony of statements of the daughter of appellant to an investigating officer; 4) whether the trial court erred in denying appellant's motions for a directed verdict of acquittal pursuant to rule 20, Arizona Rules of Criminal Procedure; 5) whether the trial court erred in denying appellant's request to sequester the jury; 6) whether the trial court erred in instructing the jury on the elements of first degree murder; 7) whether appellant was denied due process at the time of closing arguments; and 8) whether the trial court improperly aggravated appellant's sentence.

The charge in this case arose out of the death of appellant's wife, Sharon Ruth Just, on July 21, 1980. The evidence, viewed in a light most favorable to sustaining the verdict, reveals that during the early morning hours of July 21, 1980, Jana Just, the nine-year-old daughter of appellant and the victim was awakened by the sound of her brother crying. While she was awake, she heard her mother scream from the bedroom, "Al" and "Al, stop it." Jana approached her parents' bedroom, and turned on the light, but was unable to observe her parents because her view was obstructed by the door. Appellant told Jana to turn off the light and go to bed. Jana returned to bed. Jana heard her father take a shower, and after he took a shower, he got the children out of bed, told them that there had been an accident and that their mother had rolled out of bed onto a knife. He told them that he had pulled the knife from her and put his hand over her mouth so that her screams would not wake them.

Appellant then called his minister, Pastor William Meyer, and told him there had been an accident. Meyer told appellant to telephone the police department. Leasha Ratliff, a Crime Stop operator, testified that she answered the call and notified the fire department and the police dispatcher. The tape recording of appellant's telephone call to the police department was played for the jury. Ratliff noted during the phone conversation that appellant sounded "crazy" and "incoherent." Betty Kipp, who was the dispatcher for the fire department, and who was on the line during the conversation between appellant and Ratliff, testified that appellant sounded "very calm and very strange."

The Phoenix Fire Department dispatched paramedics to appellant's residence at approximately 4:10 a.m. They arrived three to four minutes later. Appellant met Paramedic James Clifford at the door. Clifford was followed by Pastor Meyer. As the two parties reached the door, appellant said the words, "they really did it this time." Clifford entered the master bedroom and saw the unclad body of Sharon Just lying on her right side on the bed with her head at the foot of the bed. Clifford observed blood on the floor near the bed, and observed the body had very little blood on it. Appellant told Clifford that his wife had fallen on a knife. Clifford observed a broken knife between the sink and the wall in the bathroom. He also saw blood on the shower floor. Clifford was unable to get a response from Sharon Just.

Phoenix Police Department Detective Harry Jennings also arrived at the residence in the early morning hours of July 21, 1980. He testified that the bedroom was in disarray when he arrived. He discovered the broken knife, several towels and pillow cases with bloodstains in the bathroom. The pillow cases had been washed. He determined that there was no evidence that anyone had forced entry into the residence.

The Chief Investigating Officer, Phoenix Police Department Detective George Klettlinger interviewed appellant at approximately 6:45 a.m. July 21, 1980, following appellant's arrest. He advised appellant of his constitutional rights. Appellant told Klettlinger in a rambling interview that he and his wife had put their four children to bed between 8:30 and 9:00 p.m. the evening of July 20, 1980. As was their custom when the children ate dinner earlier in the evening, he and his wife had dinner in their bedroom that evening. Appellant cooked steaks, and they moved an extra table from the living room into the bedroom on which to have dinner. They watched television, and went swimming. At one point during the evening, their son Robbie began to cry, so appellant placed him on the floor in their bedroom until he became quiet. Appellant then put him back into his bedroom. At another point during the evening appellant and his wife made love, which appellant indicated to Klettlinger was a "beautiful" experience. After dinner, appellant and his wife discussed what to have for dessert and remembered there was some zucchini bread in the refrigerator. Appellant got the zucchini bread, a knife, and a cutting board and brought it to the bedroom. He stated that he ate most of the zucchini bread. He placed the knife and bread pan on a chair. Appellant and his wife dozed off, and appellant later woke up and went to the kitchen.

Appellant told Klettlinger that while he was in the kitchen he heard his wife screaming, and he ran into the bedroom. He stated that he observed her lying on the floor next to the bed, and that he attempted to lift her body. As he did so, he dropped her and discovered the knife, and removed it. He told Klettlinger that she was struggling with him, that he reached in her mouth to keep her from swallowing her tongue, and that when he did so, she bit his thumb. He took pillows and sheets and pressed them between himself and Sharon in an effort to stop the bleeding. He also stated that he put his hands over her mouth so that her screams would not wake the children. He told Klettlinger that when Jana entered the bedroom and turned the light on, he told her to turn off the light and go back to bed. After Sharon went limp, appellant washed her body, and took a shower. He told Klettlinger that she did not commit suicide and could not have been killed by an intruder. Appellant stated that he assumed that she had rolled off the bed and sustained the knife wound.

Heinz H. Karnitschnig, M.D., Chief Medical Examiner for Maricopa County, performed an autopsy on the victim and testified that the cause of death was a single stab wound which punctured the victim's left lung, pulmonary artery and pulmonary vein. The wound was approximately four inches deep, and there were indications that the knife was twisted after it entered the body. He stated that the knife fractured one of her ribs, indicating that some force was used in the stabbing. He testified about the other injuries which appeared on her face, hands, and left arm. Finally, he stated that while her death was probably not instantaneous, it would have been extremely difficult to save her even if she could have been operated on within four minutes of the stabbing.

In excess of 20 witnesses testified on behalf of appellant. Many of the witnesses had known appellant and his wife when they had lived in Minnesota and Wisconsin before moving to Phoenix. The majority of witnesses testified that they never observed appellant and his wife argue or fight, they had an ideal and affectionate marriage, that they had a special relationship with their children, that they always participated in activities as a family, and had an extremely loving home life. The witnesses testified to appellant's religious upbringing and close association with his church; indeed, appellant was a "teaching minister" for the Lutheran Church. They testified about appellant's contributions to their own children and the children of others as a coach and a math teacher. Numerous witnesses stated that they were sufficiently close to either appellant or his wife to have known if there were problems in appellant's marriage. None of the witnesses knew of any such problems. Most of the witnesses knew nothing about the details of the offense because appellant had been instructed by his attorneys not to speak about them.

Appellant testified in his own behalf at trial. His testimony concerning the events of the evening of July 20, 1980, and early morning hours of July 21, 1980, was substantially similar to the statement he had given Detective Klettlinger. He testified that he had gone into the kitchen after he had awakened to get some juice or water or milk to drink, that he removed two gallon containers from the refrigerator and placed them on the cabinet. At that point he heard Sharon scream and entered the bedroom. He testified that he continued to tell her that people would be coming to help, but did not realize that he had not called anyone to help. He believed that the marks and scratches on her body, and those on his body were caused in the struggle between them. He stated that after he called Crime Stop, he noticed the bottles on the kitchen counter, and placed them back in the refrigerator, and that was why the investigative photographs of the kitchen area did not show the containers on the...