State v. Lenahan

• Decision Date: 13 July 1970
• Docket Number: No. 2,CA-CR,2
• Citation: 471 P.2d 748,12 Ariz.App. 446
• Parties: The STATE of Arizona, Appellee and Cross-Appellant, v. Catherine LENAHAN, Appellant and Cross-Appellee. 202.
• Court: Arizona Court of Appeals

Page 748

471 P.2d 748

12 Ariz.App. 446

The STATE of Arizona, Appellee and Cross-Appellant, v. Catherine LENAHAN, Appellant and Cross-Appellee.

No. 2 CA-CR 202.

Court of Appeals of Arizona, Division 2.

July 13, 1970.

Rehearing Denied Sept. 2, 1970.

Gary K. Nelson, Atty. Gen., by Carl Waag, Asst. Atty. Gen., for appellee State.

Rose Silver, County Atty., Pima County, Tucson, by Horton C. Weiss and David G. Dingeldine, Deputy County Attys., for cross-appellant State.

William T. Healy, Tucson, for appellant and cross-appellee.

KRUCKER, Judge.

Catherine Lenahan was informed against for the crime of attempted murder. A jury found her guilty and she was sentenced to not less than five nor more than eight years. She appeals these determinations.

The facts are as follows. An altercation between defendant and undersheriff James O. Wyckoff took place on November 24, 1968. Both parties lived at a Tucson address along with defendant's daughter. Following the disagreement, both persons went to their bedrooms and took out guns. The defendant then fired three shots from various points in and outside the house, the last shot striking Mr. Wyckoff in the neck. He is alive but quadriplegic.

There was no dispute that defendant in fact fired a shot which struck Mr. Wyckoff. The essential difference in the versions of what took place revolves around placing responsibility for the initial argument and in establishing defendant's intent. There was evidence that both had consumed a considerable quantity of beer during the day. Both the daughter and the mother testified that Mr. Wyckoff had struck defendant several times, and there was general uncontested psychiatric evidence that defendant had some emotional problems relating to her relationship with Mr. Wyckoff, her father, and other situational factors.

We take the issues raised on appeal in order.

THE PROSECUTOR'S ZEAL DENIED DEFENDANT A FAIR TRIAL

Defendant contends the State was so overzealous in its presentation of its case that she was denied a fair trial. In particular, defendant points out that the prosecutor made many objections during the trial and the court reprimanded him several times. Defendant also points out that, at the closing, counsel picked up an exhibit (refused admission into evidence), an alleged statement by the daughter of the defendant, and argued that facts were being kept from the jury by defense counsel.

At the motion for new trial, the trial court heard essentially these same arguments and denied the new trial request. The court said it did not believe that this case was a flagrant violation of the rules of propriety found in State v. Jordan, 80 Ariz. 193, 294 P.2d 677 (1956); Rutledge v. State, 41 Ariz. 48, 15 P.2d 255 (1932). We, nevertheless, believe a review of the record is relevant.

The prosecution, according to defendant's count, made approximately 290 objections during the trial; defense counsel, according to the State, made about 137. Both sides, at different times, moved for mistrial, charging misconduct by opposing counsel. Mr. Weiss believed defense counsel was attempting to contaminate the jury by introducing innuendos about the Sheriff Burr indictments. Defense counsel believed Mr. Weiss, by waving a specifically rejected exhibit, implied Mr. Healy was attempting to hide the truth. ¹

Twice counsel and the court, as cited in defendant's brief, had heated words. Both times the court reprimanded Mr. Weiss for making insinuating comments and trying to take over the courtroom. However, on both occasions, the interchange took place outside the jury's presence.

The record shows repeated emotional events. Mr. Wyckoff's wheelchair presentation was dramatic. Mrs. Lenahan's sobbing and lack of composure not only stopped her testimony temporarily, but dramatized her emotional state. And, as usual, there were attempts by both sides to impeach and rehabilitate witnesses.

We do not believe, however, that the conduct of counsel at trial was so prejudicial as to require a retrial. We concur with the trial court's determination.

THE PRELIMINARY HEARING SO VIOLATED DEFENDANT'S RIGHTS THAT REVERSIBLE ERROR OCCURRED

In particular, defendant has three contentions. First, she argues it was reversible error for the trial court to deny counsel argument at the hearing as to whether to continue proceedings without the victim's testimony. Second, she argues that the court erred in admitting the physician's testimony over 'privilege' objections. Thirdly, she contends the only evidence presented linking defendant to the crime was improperly admitted.

The record reveals that two days of preliminary hearings took place initially. The victim, Mr. Wyckoff, was not available to testify. At the end of the second day, defense counsel requested proof of Mr. Wyckoff's inability to appear. Shortly thereafter, an attempt was made to hear Mr. Wyckoff's testimony in Phoenix, where he was hospitalized. However, a petition for a writ of prohibition sought by defendant was granted holding that a Pima County Superior Court has no hearing power in Maricopa County. The court then reviewed the evidence already given and determined that enough evidence had been presented to bind defendant over. Apparently, defendant was not allowed to present argument as to this final determination.

The purpose of a preliminary hearing is to determine whether there is probable cause that defendant caused the offense charged in the information. State v. Pima County Superior Court, 103 Ariz. 369, 442 P.2d 113 (1968); State v. Marlin, 5 Ariz.App. 524, 428 P.2d 699 (1967).

The preliminary hearing must comport with the requirements of due process, McWilliams v. Justice Court, Tucson Precinct No. 1, Pima County, 5 Ariz.App. 200, 424 P.2d 848 (1967), but this does not mean that all the procedures for a trial need be employed.

We cannot believe that the failure to give defense counsel closing argument so prejudiced defendant's position at the preliminary hearing as to demand reversal. We also believe there was adequate, and Properly admitted, evidence presented to indicate defendant had in fact shot Mr. Wyckoff. The ambulance driver, Mr. Kordsiemon, who arrived at the house after the shooting, testified Mr. Wyckoff told him he was shot in the neck and that the 'housekeeper' had shot him. There was also testimony by an officer, Mr. Lyons, that, on interviewing the defendant at the hospital, she admitted firing the shot which struck Wyckoff. Another sheriff's deputy, Manuel Verdugo, also testified Mr. Wyckoff told him at the hospital that 'Katy' shot him and defendant herself had so admitted to him. We believe defendant was properly bound over, notwithstanding any complaints she may have as to the admission of some evidence.

We do not believe that defendant can point to any defect in a preliminary hearing which is curable at this point in the proceeding. This court has held that certain standards of case presentation apply to a preliminary hearing. However, short of a jurisdictional defect in the subject matter such as laid forth in Rule 316, 17 A.R.S., Rules of Criminal Procedure, which would also be grounds for arrest of judgment, we are compelled to hold that, generally speaking, errors at a preliminary hearing must be remedied prior to trial. State v. Cuzick, 5 Ariz.App. 498, 428 P.2d 443 (1967). Once trial is over and properly completed, a 'nonjurisdictional' error at a preliminary hearing is lost.

In the instant case, we do not believe there was jurisdictional error in the magistrate's failure to allow defense counsel to argue, in the magistrate's allowance of the victim's doctor's testimony, or in the noncontinuous nature of the hearing. Each of these complaints could have been remedied at the hearing prior to trial had they been found to be error, but trial now having resolved the ultimate questions, a reversal of the whole proceeding serves no function.

THE ARIZONA STATUTE ON ATTEMPTED MURDER IS INVALID

Defendant contends that A.R.S. § 13--110 is invalid. In particular, she contends it is invalid because a base maximum sentence of one-half life is imposed which is so indefinite as to make the statute unconstitutionally invalid. We point out that the Arizona Supreme Court has answered this contention at least twice, once in State v. Mandel, 78 Ariz. 226, 278 P.2d 413 (1954), and once in State v. Williams, 103 Ariz. 284, 440 P.2d 311 (1968). The Supreme Court points out that the crime of attempted murder in the first degree is not a crime in Arizona because the sentencing statute covering it has impossible limits as to both minimum and maximum sentences. However, when a defendant is simply charged and convicted on a non-degree designated charge of attempted murder, as in the instant case, the court construes the count as attempted murder in the second degree and sentences accordingly.

A sentence for attempted murder in the second degree is one half the sentence for second degree murder which is not less than ten years nor more than life. Thus, the penalty for the attempt is not less than five years nor more than half a life sentence. The definiteness of the base minimum makes it a valid sentence. Our Supreme Court has held that the trial court, in fixing the base maximum sentence, need only fix a lifetime basis and divide it in half. Mandel, supra.

We, therefore, reject defendant's contentions on these issues.

Defendant also contends that 5 A.R.S. § 13--110 is a general statute, which is superseded in part by 5 A.R.S. § 13--248 which condemns assault with intent to commit murder because to a certain extent they are identical. We must disagree. Obviously, attempted murder, broadly defined does not require present ability to complete the act, Mandel, supra, nor are all attempted murders accomplished by assaults, to wit, poisonings. And we do not believe that, because the assault statute is specific, it must be used when an attempted murder involves an assault. The Arizona...