State v. Malumphy

• Decision Date: 03 December 1969
• Docket Number: No. 1751,1751
• Citation: 105 Ariz. 200,461 P.2d 677
• Parties: STATE of Arizona, Appellee, v. Timothy MALUMPHY, Appellant.
• Court: Arizona Supreme Court

Page 677

461 P.2d 677

105 Ariz. 200

STATE of Arizona, Appellee, v. Timothy MALUMPHY, Appellant.

No. 1751.

Supreme Court of Arizona, In Banc.

Dec. 3, 1969.

Gary K. Nelson, Atty. Gen., Darrell F. Smith, Former Atty. Gen., Howard P. Leibow, Former Sp. Asst. Atty. Gen., for appellee.

Ross Lee, Public Defender, Vernon B. Croaff, Former Public Defender, Grant Laney, Former Deputy Public Defender, Lewis Roca Beauchamp & Linton, by John J. Flynn, James Moeller, Terry D. Oehler, Charles D. Roush, Phoenix, for appellant.

UDALL, Chief Justice.

Defendant Timothy Malumphy was convicted of two counts of first-degree murder and sentenced to death. We have reviewed the record of the trial and conclude that the judgment should be affirmed.

At the time of the offense defendant was employed as a waiter at Laffite's restaurant in Scottsdale, Arizona. He testified that for some time he had contemplated suicide but lacked the courage to take his own life. He therefore decided to kill someone else so that he could be tried for murder and given the death penalty. His plans took form on the afternoon of April 15, 1966, when he purchased a 38-caliber revolver from a Phoenix pawnshop. At approximately 6:15 p.m. on the same day he walked into the employee's dining room at Laffite's. He told one employee he was going to quit, and spoke to others about employment in Colorado Springs. Robert Bartlebaugh allegedly made a sarcastic remark to defendant, and defendant pulled out the gun and shot him in the chest. Constantine Karabogius was in the main dining room, and upon hearing the shot he entered the employee's room. Defendant then shot Karabogius in the stomach, and when he fell face downward on the floor he shot him again in the back. Bartlebaugh lived four hours, but Karabogius was dead upon the arrival of officers on the scene. Defendant then walked from the restaurant and some hours later gave himself up to his brother, a Phoenix policeman.

Defendant testified that he picked his two victims because 'they didn't deserve to live.' He further stated that his action in taking their lives was sanctioned by God, and that in God's sight he had done no wrong. He admitted that he knew he was breaking a law of society, and that society would condemn him for his action, but he felt that someone had to 'stop' the two men from hurting others, and since his life was already ruined he was the one to do it.

At his trial defendant raised the defense of insanity at his mother's request. He stated on the stand that he hoped the jury would find him guilty and sentence him to death. Further, he made a motion in this court, which we denied, to have his appeal dismissed. We granted him the opportunity to appear before us on his own behalf, and in that appearance he stated that he felt he had been given a fair trial and an appropriate sentence. Despite his efforts we have undertaken a review of the record, and will discuss the merits of the arguments presented by assigned counsel.

It is contended that the trial court erred in instructing on the M'Naghten rules as the test for criminal responsibility, rather than the test set forth in the Model Penal Code, § 4.01. We have considered the question of adopting a different test for criminal responsibility in this state on numerous occasions, and have consistently adhered to the M'Naghten rules. State v. Bradley, 102 Ariz. 482, 433 P.2d 273 (1967); State v. Schantz, 98 Ariz. 200, 403 P.2d 521 (1965). In Schantz we discussed § 4.01 of the Model Penal Code, and stated:

'Whatever may be the theoretical merits in the medical evaluation of the volitional aspects of the human mind, we, * * *, do not accept § 4.01 of the Model Penal Code as the test for criminal reponsibility in this state.'

We hold that the court properly instructed the jury as to the test for criminal responsibility.

It is contended further that the court erred in refusing to instruct the jury that it could consider evidence of defendant's mental condition in determining whether defendant, in fact, entertained premeditation and deliberation. The instruction embodies the precept commonly referred to as the doctrine of 'diminished responsibility.' We rejected the doctrine in State v. Schantz, supra, after an extensive discussion of the subject. We likewise reject it in this case for the reasons set forth in Schantz. Further, it would have been a useless gesture to give the instruction in the instant case since it was defendant's own testimony that the murder was carefully conceived and carried out according to the preconceived plan. Neither of the psychiatrists who examined defendant, and testified at the trial, stated that defendant's mental condition prevented him from entertaining the requisite premeditation.

The court refused to instruct the jury on second-degree murder and manslaughter. A defendant is entitled to instructions on the lesser offenses of second-degree murder and manslaughter if a reasonable interpretation of the evidence indicates that he could be guilty of these offenses. State v. Schroeder, 95 Ariz. 255, 389 P.2d 255 (1964). The facts here clearly point only to a conviction for first-degree murder. Further, as was stated in State v. Schroeder, supra, 'When the sole defense to a charge of murder is an alibi, for example, or a plea of insanity, no instruction on included crimes is necessary.'

Defendant was examined by two psychiatrists who both testified at the trial. It is contended that one of the doctors was prejudiced in favor of the state since he regularly testified for the County of Maricopa at insanity hearings. No prejudice appears in the record, and we will not presume that it existed. State v. McDaniel, 80 Ariz. 381, 298 P.2d 798 (1956).

Carlos Jiminez, an employee of Laffite's at the time of the shooting, was called by the state as a witness. On direct examination he gave an eye-witness account of the shooting and offered his opinion that defendant was normal and knew right from wrong. On cross-examination the following ensued:

'Q You stated earlier that he acted like a normal individual, did he act--was he acting normally when he shot Gus and Bart?

'Mr. Lim: Objection, your Honor. That's argumentative.

'Mr. Esser: Your Honor, I believe that counsel has opened the door as to whether he acted normally or not.

'The Court: Will counsel approach the bench?

'(Discussion off the record at the bench.)

'The Court: Sustained.'

It is contended that the court erred in not allowing the witness to answer the question as to whether defendant was normal when the shooting occurred. It is not clear from the record whether the court sustained the objection because it was presented in argumentative form or whether the court meant to keep the witness from rendering his opinion on defendant's mental condition. However, since the witness testified on direct examination that in his opinion defendant was normal and knew right from wrong, and since several other witnesses testified to the same effect, it is our opinion that any error that was made was harmless. State v. Eisenstein, 72 Ariz, 320, 235 P.2d 1011 (1951).

It is contended that A.R.S. § 13--453, which prescribes the punishment for murder, is unconstitutional in that it authorized the imposition of the death penalty in violation of the eighth and fourteenth amendments of the United States Constitution and §§ 4, 13, and 15 of Article II of the Arizona Constitution, A.R.S. We answered the question in State v. Boggs, 103 Ariz. 328, 441 P.2d 778 (1968), where we said:

'We hold that the imposition of the death penalty for a first-degree murder conviction is not violative of the cruel-and-unusual-punishment prohibitions of either the United States or Arizona constitutions.'

During voir dire of the jury a prospective juror was questioned as follows:

'THE COURT: If you were selected as a trial juror in this case and if at the conclusion of the evidence you felt that the case warranted, would you have any moral or religious beliefs which would prevent you from voting for the death penalty?

'MRS. PERRY: Yes, sir, I do.

'THE COURT: You do?

'MRS. PERRY: Yes, sir.

'THE COURT: Is there any case or any state of facts which would in your belief warrant the imposition of the death penalty?

'MRS. PERRY: No, sir.

'MR. LIM: We will ask this juror be removed for cause, your Honor.'

It is submitted by assigned counsel that the juror was improperly excused under the holding in Witherspoon v. State of Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). We do not agree. In Witherspoon the United States Supreme Court stated:

'Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against this infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected.'

The juror in the instant case expressed more than conscientious scruples against the infliction of the death penalty. She stated specifically that even if she felt the case warranted it she would be prevented from imposing death by her moral or religious beliefs. The following language from Witherspoon, supra, is clearly in point:

'The issue before us is a narrow one. It does not involve the right of the prosecution to challenge for cause those prospective jurors who state that their reservations about capital punishment would prevent them from making an impartial decision as to the defendant's guilt. Nor does it involve the State's assertion of a right to exclude from the jury in a capital case those who say that they could never vote to impose the death penalty or that they would refuse even to consider its imposition in the case before them.'

The instant case comes within the above exclusionary language, and therefore the court did not err in excusing the juror for cause.

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