State v. Madden

• Decision Date: 03 January 1969
• Docket Number: No. 1745,1745
• Citation: 449 P.2d 39,104 Ariz. 111
• Parties: STATE of Arizona, Appellee, v. Rebecca B. MADDEN, Appellant.
• Court: Arizona Supreme Court

Page 39

449 P.2d 39

104 Ariz. 111

STATE of Arizona, Appellee, v. Rebecca B. MADDEN, Appellant.

No. 1745.

Supreme Court of Arizona, In Banc.

Jan. 3, 1969.

Gary K. Nelson, Atty. Gen., Lloyd D. Brumage, Pinal County Atty., for appellee.

Lewis, Roca, Scoville, Beauchamp & Linton, by John P. Frank, John J. Flynn, Terry D. Oehler, Paul G. Ulrich, Phoenix, for appellant.

HATHAWAY, Judge, Court of Appeals:

Rebecca B. Madden was charged under A.R.S. § 13--451 with the murder of her husband. The cause was tried to a jury, and she was found guilty of murder in the second degree. On August 15, 1966, she was sentenced to ten to twelve years imprisonment.

Before setting forth the specific questions presented on this appeal, relating principally to selection of the jury, correctness of instructions, and participation in the proceedings by a judge other than the trial judge, we will briefly review the facts.

In the spring of 1965, the defendant and her husband began having marital difficulties which subsequently resulted in separation and divorce. On March 25, 1966, shortly after the hotly contested divorce trial, Mr. Madden was exercising his visitation rights with their nine-year-old son, Michael. In the late afternoon, prior to his departure for the defendant's residence to take Michael back, he and the defendant had two or three quarrelsome telephone conversations.

The defendant's residence was situated in a somewhat remote area near the Superstition Mountains. Before Madden's arrival with Michael, the defendant placed her shotgun in the back seat of her car, and drove through and locked the gate to the grounds of the main ranch house. She then drove to the trailer home of Gus Seber, the caretaker, situated a few hundred yards away, and awaited Madden's arrival. When Madden drove up to the gate, Michael attempted to open it and found it locked. Madden turned the car around and drove to Seber's trailer, pulling up behind the defendant's car. Seber had spotted Madden's vehicle as it arrived at the gate to the main house and had notified the defendant. They both went outside the trailer, but Seber returned inside at the defendant's direction.

As Michael got out of his father's car, he saw his mother standing by her car with the shotgun in her hand. She told him to go into Seber's trailer. He went inside and joined Seber in watching television. Several dogs were running back and forth barking in the trailer. The noise caused by the dogs and the television prevented Seber and Michael from hearing anything from outside. Moments later, the defendant came into the trailer and told Seber to call the police. He could not find the number and the defendant took the telephone from him. She called the Pinal County Sheriff's office, and told the dispatcher:

'This is Mrs. Madden. My husband was trespassing on my property and I just shot him. Will you please send an officer to Meanwhile Ranch.'

A sheriff's deputy who knew the defendant arrived approximately fifteen minutes later. When he asked her how she was, she responded, 'I am sorry I did this.' The deputy saw Madden lying on the couch with a wound in his chest, and called an ambulance. Madden's only utterances were pleas for help, requests for water, and statements that he was dying. He gave no details of the shooting. He was alive when placed in the ambulance, but expired enroute to the hospital.

The defendant testified that the shooting was accidental; that her husband grabbed the gun, causing it to discharge; that she had no intention of shooting or killing him.

The defendant initially contends that the systematic exclusion from the jury for cause of all persons who objected to the death penalty deprived her of an impartial jury, and left a group composed of 'authoritarian, prosecution-prone' people. In Witherspoon v. People v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), the same argument was made. Because of the death penalty fixed by the jury in Witherspoon, reversal was decreed in view of the exclusion for cause of veniremen who objected to the death penalty or expressed conscientious or religious scruples against its infliction.

Witherspoon, being a capital punishment case, is inapplicable here, however, as a basis for reversal. Bumper v. State of North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). Witherspoon does, however, meet the defendant's argument that a jury so selected must necessarily be biased in favor of conviction. ¹ The court, in Witherspoon, found that the date submitted by the petitioner was too fragmentary, and would not conclude on the basis of the record or from judicial notice that an unrepresentative jury resulted on the issue of guilty, or that there was a substantial increase in the risk of conviction. We have reviewed additional material submitted by the defendant and conclude likewise. ² The defendant next contends that the trial court erred in submitting the first-degree murder charge to the jury, claiming that premeditation had not been established. We have carefully considered the record, in the light most favorable to sustaining the conviction and find that bitter relations had existed between the defendant and the decedent, and that the defendant had stated that she would rather see Madden dead than for him to keep the boy, and 'if I don't get the boy back, I will kill him.' It was shown that she was beneficiary under insurance policies on Madden's life providing benefits in the sum of $450,000 in case of accidental death. The defendant expected Madden to come to the premises for the purpose of delivering Michael. The locked gate to the main ranch assured his entrance to the area occupied by the trailer. The defendant, with the shotgun in the back seat of her car, drove to the trailer to await Madden's arrival with Michael. At her direction, Seber and Michael entered the trailer, leaving her alone with Madden. She removed the shotgun from her car as he arrived and injected a live cartridge into it. Madden died from the shotgun blast which followed. The foregoing amply supports a charge of first-degree murder.

The defendant also complains on appeal that the trial court should not have given the 'lying in wait' instruction. The instructions are not set out in the brief as required by Rule 5(b)(10), Rules of the Supreme Court, 17 A.R.S. This rule is equally applicable to criminal appeals, Rule 15, Rules of the Supreme Court. An appellate court is under no obligation to consider the challenged instruction where its rules have not been followed. Johnson v. United States, 370 P.2d 495 (9th Cir. 1966). In any event the defendant, having been convicted of second-degree murder, was not prejudiced by the 'lying in wait' instruction, which we recently considered in detail in State v. Brooks, 103 Ariz. 472, 445 P.2d 831 (1968); Walker v. People,126 Colo. 135, 248 P.2d 287 (1952); State v. Goettina, 61 Wyo. 420, 158 P.2d 865 (1945); 41 C.J.S. Homicide § 427, para. d; Viliborghi v. State, 45 Ariz. 275, 43 P.2d 210 (1935); Wootton v. State, 232 Ark. 330, 337 S.W.2d 651 (1960); State v. Aubuchon, 394 S.W.2d 327 (Mo.1965); Ruffin v. State, 11 Terry 83, 50 Del. 83, 123 A.2d 461 (1956). Any error is cured by the acquittal of first-degree murdr.

The defendant contends that the court erred in failing to instruct the jury on voluntary and involuntary manslaughter. The court is duty-bound to instruct the jury on every degree of homicide embraced in the information and which the evidence suggested may have existed, even though no request has been made therefor. Arizona Rules of Criminal Procedure 276, 17 A.R.S.; Singh v. State, 35 Ariz. 432, 280 P. 672, 67 A.L.R. 129 (1929); Miranda v. State, 42 Ariz. 358, 26 P.2d 241 (1933); Antone v. State, 49 Ariz. 168, 65 P.2d 646 (1937). The State responds that manslaughter is not within the scope of the evidence, and, having carefully considered the record, we agree. Our statutory definition for voluntary and involuntary manslaughter is as follows:

'1. Voluntary, upon a sudden quarrel or heat of passion.

'2. Involuntary, in the commission of an unlawful act not amounting to a felony, or in the commission of lawful act which might produce death in an unlawful manner, or without due caution or circumspection.' A.R.S. § 13--456

The defendant related the following account of the shooting:

'A Two things happened, Mr. Johnson. Number one, I know I pushed the safety and told him I was doing it. The second thing I pumped the gun to show it was loaded.

'Q Take your hand down and look at me and tell me what occurred.

'A He said something about, 'You are bluffing, and I will wrap that gun around your neck,' and he came at me and grabbed the gun (indicating). It went off. That's all I can say.

'Q Did you pull that trigger?

'A It went off, Mr. Johnson. I didn't pull the trigger.

'Q Did you intend to pull the trigger?

'A No, sir.

'Q Now, you say he grabbed the gun?

'A Yes, sir.

'Q Do you know?

'A He pulled it (indicating), he grabbed it and pulled it, pulled it this way (indicating with hands).'

The defendant's position was that she did not kill Madden. The defense evidence that she did not intend to kill him precluded the giving of a voluntary manslaughter instruction. Harding v. State, 2l Ariz. 334, 225 P. 482. Nor would the evidence support an instruction on involuntary manslaughter, since the homicide was not caused, even from the defendant's point of view, by her culpable negligence; rather, the shotgun was accidentally discharged when Madden attempted to grab the weapon from her. Since the state of the record was such that the defendant could only be guilty of the crime charged, or not guilty at all, manslaughter instructions were not required. ³ State v. Schroeder, 95 Ariz. 255, 389 P.2d 255 (1964); People v. Finch, 213 Cal.App.2d 752, 29 Cal.Rptr. 420 (1963); State v. Callihan, (1967), 11 Ohio App.2d 23, 227 N.E.2d 654; Fleming v. State, Okl.Cr.App., 401 P.2d 997 (1965); ...