State v. Lacquey
| Decision Date | 15 November 1977 |
| Docket Number | No. 3368,3368 |
| Citation | 117 Ariz. 231,571 P.2d 1027 |
| Parties | The STATE of Arizona, Appellee, v. Charles LACQUEY, Appellant. |
| Court | Arizona Supreme Court |
Alexander Russin, Holbrook, for appellant.
Charles Lacquey, in pro. per.
The defendant, Charles Lacquey, was indicted and tried on an open charge of murder of his wife. On 26 September 1975, a jury found him guilty of murder in the first degree, A.R.S. §§ 13-451 and 452, and he was sentenced to life imprisonment without possibility of parole until the completion of 25 calendar years. A.R.S. § 13-453. From the conviction and sentence the defendant appeals.
We have jurisdiction pursuant to A.R.S. § 13-1711 and A.R.S. § 12-120.21.
Three issues are raised by defendant's attorney on appeal:
1. Did the trial court err in refusing to direct a verdict of acquittal on the charge of first degree murder?
2. Was the defendant prejudiced by the fact that prior to the homicide he had consulted on a civil matter with the law partner of the prosecutor?
3. Should the trial court have granted a continuance or a mistrial when a witness failed to appear at trial?
The defendant has also filed a brief in propria persona in which he raises numerous claims of error.
The facts necessary for a determination of this matter on appeal are as follows. On 4 July 1975, Charles Lacquey and his wife Carol attended the Fourth of July Parade in Show Low, Arizona. Afterwards, around noon, they went to Bill's Bar. The defendant On 9 July 1975, the defendant gave a taped statement to sheriff's deputies after receiving his Miranda warnings. This tape was played for the jury at the trial. In it the defendant said that he consumed ten to twelve bourbon drinks as well as beer at the Basket House. He said that he then drove back to Bill's Bar to pick up his wife but the establishment appeared to be close to closing. He estimates that this was around midnight. He did not remember driving home. When he entered the trailer, his wife accosted him and struck him on the forehead with her hand for deserting her at Bill's Bar. In his statement the defendant said that at that moment:
had two or three beers there and then, leaving his wife behind, he drove a friend to another bar, the Basket House. The defendant stayed there for several hours drinking and shooting pool. No one saw him leave, but witnesses later testified that his pickup truck was no longer at the entrance to the Basket House at 6 p.m. Other witnesses testified that Carol Lacquey left Bill's Bar around 5 p.m. after the bartender refused to serve her any more drinks because of her inebriated condition. The next morning, 5 July 1975, the Navajo County Sheriff's Deputies were summoned by Charles Lacquey to the trailer that he and his wife occupied. When they arrived they discovered the bruised and beaten body of Carol in a bed. Charles Lacquey was arrested that day on suspicion of murder.
The defendant claimed in his taped statement that his wife then cleaned herself up and went to bed. Later that night he discovered her on the floor. He attempted to revive her but she was dead.
At the trial, the pathologist who performed the autopsy on the deceased testified that the cause of death was multiple external and internal injuries caused by impact with a blunt instrument like a fist or a boot. He estimated that time of death was between 7:30 p.m., 4 July, and 1:30 a.m., 5 July. In his opinion, the victim could have survived no more than two hours after the infliction of these injuries, and then only in an unconscious state.
At trial the defendant testified that he arrived home around midnight, saw his wife in bed and went to bed in another bedroom. He woke up later and found her lying on the floor. He denied assaulting her.
The trial court instructed the jury on first and second degree murder; voluntary and involuntary manslaughter. The court also instructed the jury on the effect of intoxication on specific intent. The jury returned a verdict of first degree murder.
At trial the defendant made a timely motion for a directed verdict of acquittal on the charge of first degree murder on the basis that the evidence presented was insufficient as a matter of law for the jury to find the requisite premeditation and deliberation. The trial court denied the motion on the basis that premeditation and deliberation could be inferred from the nature and extent of the beating inflicted upon the victim.
Our statute reads:
To be entitled to a first degree murder verdict, the State must prove beyond a reasonable doubt that the killing The State's expert witness, a surgeon specializing in pathology who conducted the autopsy, testified that external examination revealed bruises all over the chest, back, legs, and thighs, as well as around the neck. The pressure applied around the neck was, however, not sufficient to rupture the larynx. The deceased also had a broken nose. The internal examination revealed nine fractured ribs, one of which punctured the lung. The pathologist also found lacerations of the liver, caused either by the fractured ribs or by a direct blow, and hemorrhaging of the brain, most probably caused by the victim falling on the back of her head against the floor. In his opinion, death was caused by these multiple injuries. No one single injury was singled out as the cause of death.
was premeditated and deliberate. In order to show premeditation and deliberation, the State must prove that the defendant made a decision to kill prior to the act of killing, that "a plan to murder was formed after the matter had been made a subject of deliberation and reflection." Macias v. State, 36 Ariz. 140, 149, 283 P. 711, 715 (1929). While the necessary premeditation prior to the act of killing "may be as instantaneous as successive thoughts of the mind," Macias v. State, supra, at 150, 203 P. at 715, and may be proved by circumstantial evidence, State v. Tostado, 111 Ariz. 98, 523 P.2d 795 (1974); State v. Sellers, 106 Ariz. 315, 475 P.2d 722 (1970), premeditation and deliberation still must be shown.
The defendant's tape recorded admission, the testimony of the pathologist, and the photographs of the deceased all suggest a random, violent and indiscriminate attack upon the victim, rather than the deliberate infliction of injuries calculated to result in death.
Viewing the facts in a light most favorable to sustain the court's judgment and the jury's verdict, State v. Childs, 113 Ariz. 318, 553 P.2d 1192 (1976), the record fails to support a finding of premeditation and deliberation.
That this crime was brutal there can be no doubt, but brutality alone cannot, in itself, support a finding of premeditation and deliberation. People v. Anderson, 70 Cal.2d 15, 73 Cal.Rptr. 550, 447 P.2d 942 (1968). The court erred in not granting the motion for directed verdict as to first degree murder.
There is no question that there was malice. Malice is implied when no considerable provocation appears or when the circumstances attending the killing show an "abandoned and malignant heart." There was substantial evidence of malice in this killing. A.R.S. § 13-451(B); State v. Mendell, 111 Ariz. 51, 523 P.2d 79 (1974); State v. Coward, 108 Ariz. 270, 496 P.2d 131 (1972); State v. Schantz, 98 Ariz. 200, 403 P.2d 521 (1965), cert. den. 382 U.S. 1015, 86 S.Ct. 628, 15 L.Ed.2d 530 (1966). Therefore, we have no trouble in sustaining a conviction for murder in the second degree, and the verdict must be reduced to that of second degree murder.
The defendant asserts that he was denied a fair trial by the fact that the prosecuting attorney, Jay Flake, was a law partner to a Mr. Dennis Davis, who had given some legal advice to the defendant several weeks prior to the date of the homicide. The defendant argues that an attorney-client relationship was "clearly established" between himself and Mr. Davis which precluded Mr. Flake from prosecuting him.
Attorney Davis testified, after the defendant waived the attorney-client privilege, that the defendant had consulted him about a civil matter in Florida, and that he advised the defendant to proceed with counsel in that state. The consultation lasted approximately ten minutes...
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