State v. Lucas

• Decision Date: 07 June 1990
• Docket Number: CA-CR,No. 1,1
• Citation: 794 P.2d 1353,164 Ariz. 540
• Parties: STATE of Arizona, Appellee, v. Jimmie Lynn LUCAS, Appellant. 89-954.
• Court: Arizona Court of Appeals

Page 1353

794 P.2d 1353

164 Ariz. 540

STATE of Arizona, Appellee, v. Jimmie Lynn LUCAS, Appellant.

No. 1 CA-CR 89-954.

Court of Appeals of Arizona Division 1, Department C.

June 7, 1990.

[164 Ariz. 542] Robert K. Corbin, The Atty. Gen. by Jessica G. Funkhouser, Chief Counsel, Crim. Div., Phoenix, and Bruce Ferg, Asst. Atty. Gen., Tucson, for appellee.

John M. Antieau, Phoenix, for appellant.

OPINION

EUBANK, Judge.

The supreme court has transferred its criminal appeal No. CR-87-0128 AP/PC to this court because our jurisdiction was expanded by the amendment of A.R.S. § 12-120.21 (Laws of 1989, ch. 58), which now includes life imprisonment appeals.

Following a lengthy jury trial, appellant was convicted of three counts of first-degree, felony-murder (A.R.S. § 13-1105) and one count of burglary (A.R.S. § 13-1508). He was sentenced to life imprisonment on the murder charges and ten years imprisonment on the burglary charge, with all counts to run concurrently.

The events which resulted in these charges being filed against appellant involved a shoot-out in an apartment in Phoenix. Appellant, with three of his companions, had entered the victim's apartment to confront him about problems which had occurred between the victim and one of appellant's companions. During the confrontation that ensued, appellant struck the victim in the side of the face with a .45 caliber automatic pistol that he was carrying. The weapon belonged to the appellant's companion, with whom the victim had been having a disagreement. After striking the victim in the face with the weapon, appellant began walking towards the front door of the apartment.

At about the same time, the victim's "common law" wife advised appellant that the police had been called and that he and the other people who had accompanied him should leave. When told this, appellant apparently looked over to his companion, stated that there was no use continuing to talk, fired and shot the victim, knocking him to the floor near the balcony of the apartment.

Appellant and one of his companions then immediately exited the apartment. However, before the other two companions could leave, the victim apparently got to his feet, walked back into the apartment and began firing at the individuals who were still there. The two individuals were killed. During the time the victim was firing his weapon, the appellant returned to the apartment, yelled to his companions to get out, and then fled to the parking lot where his truck was parked.

The appellant and his companion got into the truck and were leaving the parking lot as the first police officer arrived on the scene. The victim apparently climbed over his balcony and jumped into the parking lot where the appellant's truck was parked. The victim managed to get to the other side of the parking lot but collapsed and died on a cement parking block.

Appellant and his companion were captured approximately ten minutes later after being chased by the police from the scene. The .45 automatic which was used to shoot the victim was recovered along the route that appellant used to flee on foot from the police. He later made statements to the officer which conflicted with his trial testimony regarding how the shooting incident had occurred.

Two witnesses to the shooting, the victim's "common law" wife, Wanda Scurlock, and a neighbor, Donald Sandry, testified at trial. They were both in the apartment along with the victim, appellant and appellant's three companions. They were uninjured and testified about the incident at length. Appellant took the stand in his own behalf and testified. The jury convicted appellant, and he appeals from the judgment and sentences.

On appeal, appellant argues:

(1) His murder convictions are contrary to law and reason.

(2) Prosecution witnesses testified about alleged prior bad acts in violation of a pretrial order.

(3) Appellant was denied effective assistance of counsel when counsel allowed testimony of the prior bad acts to be brought before the jury.

(4) The trial court's handling of an alleged incident of juror misconduct denied appellant a fair trial.

(5) The trial court erred when it instructed the jury on justification defenses.

(6) Appellant was denied effective assistance of counsel through counsel's request for self-defense instructions.

(7) The trial court erred in refusing to give a Willits instruction.

(8) The trial court erred in its decision regarding a petition for post-conviction relief.

CONVICTIONS FOR FELONY MURDER

Appellant argues that a charge of felony murder cannot be predicated on an assault. He argues that the assault is merged into the murder and may not be deemed a separate and independent offense which can support a conviction for felony murder. State v. Essman, 98 Ariz. 228, 235, 403 P.2d 540, 547 (1965); Note, Felony-Murder and Merger in Arizona, 17 Ariz.L.Rev. 791-804 (1975). Appellant concludes that the state has simply attempted to avoid that consequence by charging burglary as a predicate offense for felony murder. The state argues that appellant's argument has been expressly rejected. See State v. Hankins, 141 Ariz. 217, 221, 686 P.2d 740, 744 (1984); State v. Miller, 110 Ariz. 489, 520 P.2d 1113 (1974).

Arizona Revised Statutes § 13-1105(A)(2) states that a person commits first-degree murder if, while committing burglary or during immediate flight from such an offense, the person or another person causes the death of any person. Burglary is committed "by entering or remaining unlawfully in or on a residential structure with the intent to commit ... any felony therein." A.R.S. §§ 13-1507, -1508. Burglary is complete when entrance to the structure is made with the requisite criminal intent. State v. Bottoni, 131 Ariz. 574, 643 P.2d 19 (App.1982). Remaining unlawfully in a residence with the intent to commit assault constitutes burglary and satisfies the requirements of a felony murder charge. State v. McGuire, 131 Ariz. 93, 638 P.2d 1339 (1981).

While an assault which resulted in a death would not itself warrant a felony-murder charge, remaining unlawfully in a residence with the intent to commit an assault constitutes a burglary and, when a death occurs, may warrant a felony-murder charge. State v. Hankins, 141 Ariz. 217, 221, 686 P.2d 740, 744 (1984). The deaths of the victims, "Big Dee" and "Duke" clearly occurred either during the burglary or during immediate flight therefrom, and appellant was properly charged with their murders. State v. Jimenez, 130 Ariz. 138, 141, 634 P.2d 950, 953 (1981).

TESTIMONY REGARDING PRIOR BAD ACTS

Appellant argues that during trial, several of the state's witnesses testified in violation of a pretrial ruling prohibiting reference to certain prior misconduct by him. Initially, appellant argues that testimony by Detective House, who related a portion of Wanda Scurlock's statement to him made the day of the shootings, constituted an improper reference to precluded matters. Appellant also argues that Officer Lazell's testimony regarding appellant's statements to him at the station house during his booking procedure violated the order. During a conversation with the officer, appellant asked the officer whether he wore a bullet-proof vest and told him that he wore one on his motorcycle rides in Texas because he never knew "what they were going to get into." Appellant also told the officer that he wasn't worried about his arrest that evening because he had been arrested before in Texas, and "his lawyer got him off on a self-defense charge, and he said his lawyer would get him off on a self-defense charge this time also."

Finally, appellant objects to two separate statements in closing arguments by the prosecutor that made reference to this last alleged statement to Officer Lazell. At the close of the first closing argument the prosecutor stated:

There is an old adage there is nothing more dangerous than a wounded animal. What is more dangerous is someone who got away with murder. Jimmy Lucas boasted before. We should not let him boast again.

Finally, the prosecutor stated in the final closing argument:

... You come back in this courtroom and tell this defendant that the statement he made to Jeff Lazell that night, who testified in this courtroom: He seemed very calm at the time, and he said that he wasn't worried about the arrest that night, because he had been arrested before, and the last time down in Texas he said his lawyer got him off on a self-defense, and he said his lawyer will get him off on a self-defense charge this time also. Please come back in this courtroom and don't ever allow this man to boast like that again.

Appellant suggests the first statement by the prosecutor insinuated that he had "gotten away with murder" and compounded the erroneous admission of the testimony regarding his statement that he had been arrested before and that his lawyer had "got him off on a self-defense charge...."

Appellant's counsel argues that the above testimony and the prosecutor's closing arguments violated the court's pretrial order prohibiting any reference to prior bad acts and denied the appellant a fair trial.

Prior to the commencement of trial, the defense filed a motion in limine arguing that no prior mention of bad acts should be made by the state, including Wanda Scurlock's statements, if any, that she was aware of appellant's reputation for violence. Such statements by Scurlock, according to appellant, would be based solely on hearsay. The motion was granted. Several weeks into the trial, Detective House testified in response to the following question by the state:

Q. What did she tell you after she described the meeting with Duke, Andy [sic] [and Dee] Humphries, and whether they were friends or not?

A. She said that during the time that she and Bill had known Dee Humphries, he had stated on several different occasions, that if Bill wanted someone killed, he was to contact Jimmy in Houston, Texas. She didn't know...