State v. McIntyre

• Decision Date: 07 December 1970
• Docket Number: No. 1933,1933
• Citation: 477 P.2d 529,106 Ariz. 439
• Parties: STATE of Arizona, Appellee, v. Alex L. McINTYRE, Appellant.
• Court: Arizona Supreme Court

Page 529

477 P.2d 529

106 Ariz. 439

STATE of Arizona, Appellee, v. Alex L. McINTYRE, Appellant.

No. 1933.

Supreme Court of Arizona, In Banc.

Dec. 7, 1970.

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

Robert J. Snyder, Jr., Sierra Vista, for appellant.

UDALL, Justice.

Defendant Alex L. McIntyre was convicted by a jury of second-degree murder and was sentenced to a prison term of not less than ten nor more than twelve years for shooting and killing Raymond W. Thomas, Sr., in December, 1967. The trial court denied defendant's motion to dismiss, his motion for judgment notwithstanding the verdict, and his motion for a new trial. Defendant appeals from the judgment and from the denial of his motions.

For the reasons advanced below, the judgment is affirmed.

The facts of the case are as follows: The shooting death which formed the basis of this action occurred in the evening of December 13, 1967, at Sierra Vista, Arizona, in the mobile home occupied by defendant McIntyre and Helene Kwiatek, with whom he lived. They had invited two of their friends, David Nelson and Emilia Lewis, to come to the trailer for an evening together. The two guests arrived about 8:00 p.m. and the four of them began playing pinochle around the kitchen table. About 11:30 p.m. Raymond W. Thomas, Sr., the former husband of Miss Kwiatek, came to the mobile home. Mr. Thomas and Miss Kwiatek had been divorced for about six months; the divorce decree gave Mr. Thomas custody of the eight children. Following the divorce Mrs. Thomas changed her name back to Miss Kwiatek, as it had been prior to the marriage. Following the divorce, Mr. Thomas had frequently contacted Miss Kwiatek at her place of employment and at her residence, apparently trying to get her to come back to him. On at least two occasions he went into a rage and beat her up. Defendant McIntyre had become acquainted with Miss Kwiatek about three months after her divorce, and after developing a friendship, moved in with her. They apparently shared the costs of rent, food, and other necessities. He had purchased the murder weapon from a pawn shop in Sierra Vista about a month before the shooting.

On the night of the shooting, when Mr. Thomas came to the door of the trailer he told his former wife that there was something urgent about which he had to speak to her. She was concerned that something may have happened to one of the children, so she agreed to let him come in. He went back to the car to turn off the engine. At this point, defendant McIntyre got up from the kitchen table and went to a room in the rear of the mobile home; he returned shortly. His purpose apparently was to pick up the murder weapon, a .32 caliber revolver, and slip it under the waistband or in the pocket of his trousers. He said nothing about the weapon when he returned to the others.

Thomas soon returned to the trailer. When Miss Kwiatek opened the door Thomas charged through. He slapped Miss Kwiatek, causing her to stagger backwards. He then made some vulgar and threatening remarks and lunged toward McIntyre, who was still sitting at the table with his pinochle cards in his hands. Thomas slapped McIntyre across the face. McIntyre arose from his chair and retreated backwards. Thomas continued his advance toward McIntyre, hitting and breaking the kitchen table in the process. Thomas hit McIntyre again. McIntyre pulled the revolver out of the waistband or pocket of his trousers and fired a shot at Thomas. Thomas halted momentarily and then started toward McIntyre again. McIntyre fired a second shot. Thomas stopped momentarily but then appeared to continue his movement toward McIntyre. McIntyre then fired three more shots at Thomas in rapid succession, emptying the cylinder of the revolver (5 cartridges). As these last shots were fired, Thomas clutched his stomach and spun around, exclaiming 'Oh Lord, I'm dead, I'm dead!', and fell to the floor. Defendant McIntyre went into hysterics, exclaiming 'I didn't mean to kill him! I only wanted to scare him!' He was wandering around with the revolver dangling aimlessly from his hand. The others had him place the revolver on the living room table, where it remained until the police picked it up.

The testimony given and exhibits introduced at the trial indicated the following sequence as related to the path followed by the bullets fired from McIntyre's revolver: The first bullet missed Thomas, ricocheted off the refrigerator, and hit Miss Kwiatek in the leg. McIntyre may have intended this as a warning shot. The second bullet entered Thomas' chest, passed straight through the body, including the heart, and lodged just beneath the skin on the back. Either the impact of the bullet, or the intentional movement by Thomas toward McIntyre, caused Thomas to pivot toward the right. As a result, the third bullet fired from the revolver (the second one to hit Thomas) entered Thomas on the left side of his chest, passed through his body, and lodged just beneath the skin under his right armpit. Thomas' body apparently continued to pivot or spin, as the fourth and fifth shots fired (the third and fourth shots to hit him) entered his back. One lodged in his right lung and the other in or near his spine.

At the trial the state called as witnesses the police officers who investigated the shooting; the doctor who pronounced Thomas dead at the site of the shooting and who later performed the autopsy on Thomas; the owner of the pawn shop from whom defendant McIntyre purchased the .32 caliber revolver used in the shooting; and David Nelson, one of the witnesses to the shooting. The defense called Miss Kwiatek and the woman with whom Miss Kwiatek lived following the shooting. The state called, as rebuttal witnesses, two acquaintances of the deceased. Defendant McIntyre did not testify.

The jury returned a verdict of second-degree murder. Judgment was entered in accordance with the verdict and defendant McIntyre was sentenced to prison for a term of from ten to twelve years.

On appeal, defendant McIntyre makes several assignments of error, which can be summarized as follows:

I. Sufficiency of Evidence: Defendant asserts that there was not sufficient evidence to support the verdict reached by the jury, and that it was therefore error for the trial court to deny his motion to dismiss (at the close of the state's evidence and at the end of the trial), his motion for judgment notwithstanding the verdict, and his motion for a new trial.

II. Refusal to Give Instructions: Defendant asserts that it was error for the trial court to refuse to give certain requested instructions relating to the defense of justification for the commission of the homicide.

III. Giving of Instructions over Defendant's Objection: Defendant asserts that it was error for the trial court to give certain instructions requested by the state, which had been objected to by the defendant on the ground that the evidence presented at the trial did not merit the giving of such instructions.

We will deal with the assignments of error in the order listed above.

I. SUFFICIENCY OF EVIDENCE

Defendant asserts that there was not sufficient evidence presented at the trial to prove the defendant guilty of second-degree murder and that it was therefore error for the trial court to deny his motion to dismiss, his motion for judgment notwithstanding the verdict, and his motion for a new trial. The question before this Court, then, is simply whether the evidence was sufficient to support the verdict.

An examination of the applicable statutes will show the particular elements which make up the offense of which defendant was convicted. A.R.S. § 13--451 defines murder and malice aforethought as follows:

'A. Murder is the unlawful killing of a human being with malice aforethought.

'B. Malice aforethought may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied when no considerable provocation appears or when the circumstances attending the killing show an abandoned or malignant heart.'

The distinction between first-degree murder and second-degree murder is stated at A.R.S. § 13--452 to be as follows:

'A murder which is perpetrated by means of poison or lying in wait, torture or by any other kind of wilful, deliberate and premediated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary or mayhem, is murder of the first degree. All other kinds of murder are of the second degree.'

The distinction between murder and manslaughter can be discerned by reference to A.R.S. § 13--455, which defines manslaughter as 'the unlawful killing of a human being Without malice.' (Emphasis added.)

These definitions were incorporated in the instructions given to the jury by the trial court. The trial court also instructed the jury as to the element of self-defense, incorporating in part the provisions of A.R.S. § 13--462 relating to justifiable homicide. The instructions on self-defense are discussed in greater detail in the next section of the opinion. The trial court instructed the jury that if the homicide appeared to have been justified, the defendant should be fully acquitted. A.R.S. § 13--463.

The jury, after being instructed on the law, concluded that the evidence presented at the trial required a verdict of second-degree murder. In other words, the verdict reached by the jury must of necessity have resulted from finding that defendant McIntyre killed the victim, Thomas, with malice, and that the killing was not justified. The concepts of malice and justification are necessarily interrelated, as we have previously defined malice as 'the intent to kill without legal justification.' State v. Brock,101 Ariz. 168 at 172, 416 P.2d 601 at 605 (1966); State v. Schantz, 98 Ariz. 200 at 206, 403 P.2d 521 at 524 (1965), cert. denied 382 U.S. 1015, 86 S.Ct. 628...