State v. Means
| Decision Date | 09 June 1977 |
| Docket Number | No. 3583,3583 |
| Citation | 115 Ariz. 502,566 P.2d 303 |
| Parties | STATE of Arizona, Appellee, v. Michael Lester MEANS, Appellant. |
| Court | Arizona Supreme Court |
John M. Neis, Pima County Public Defender by Charles L. Weninger, Asst. Public Defender, Tucson, for appellant.
Michael Lester Means, hereinafter appellant, was convicted by a jury of murder in the first degree. A motion for a new trial was denied. He was sentenced thereafter to life imprisonment without possibility of parole for twenty-five years. We have jurisdiction of his appeal from the judgment and sentence by virtue of A.R.S. §§ 13-1711 and 12-120.21(A)(1). Appellant and Jackie Means, the victim of the killing, had been twice married and divorced. Subsequent to their second divorce they continued to live together on and off. They had separated again a short time before this incident, and Jackie was living, with the couple's three minor children, in a small house next to her parents' residence.
On November 28, 1975, appellant spent a large part of the day drinking alcoholic beverages with some friends at numerous bars and a few private homes in Tucson, Arizona. He left those friends at about 7:30 P.M. After going home and exchanging his motorcycle for his car because of inclement weather, appellant drove to Jackie's home. He found her there, with the three children and a man with whom she worked. There was nothing untoward about the situation in which he found his ex-wife. Both she and her male friend were fully dressed, the three children were present, and they were all watching television and eating snacks. No harsh words were exchanged between appellant and the man, although the situation was awkward for all. Appellant stayed only a few minutes.
After he left, appellant testified, he drove around for thirty or forty minutes, drinking beer and thinking about his relationship with Jackie and about what the other man was doing at her home.
The evidence shows that he returned to Jackie's home at this point, took from his glove compartment the revolver he always carried there, and either met her out front or asked her to step outside to talk with him. Thereafter, several shots were heard by neighbors who looked out their windows, saw appellant walk to his car and drive away in a normal manner. Jackie Means was discovered by one of these neighbors immediately afterward, shot four times. Another bullet was found in the fence behind her.
Appellant admitted the shooting. His defense was that it was done in the heat of passion, i. e., that his crime was manslaughter, not murder. The jury was instructed by the court on murder in the first and second degrees and voluntary manslaughter.
Two issues are raised on appeal:
(1) Did the trial court err in prohibiting certain expert testimony?
(2) Did the trial court err in denying appellant a new trial?
In support of his "heat of passion" defense, appellant sought to persuade the jury that his level of intoxication was so high that it affected his ability to form the specific intent necessary to commit murder in the first degree. 1 In Arizona, voluntary intoxication is not a defense to a crime, but Appellant also sought to use the intoxication argument with regard to the jury's determination as to whether appellant was actually provoked into a "heat of passion."
evidence thereof is admissible to show lack of specific intent. State v. Cooper, 111 Ariz. 332, 529 P.2d 231 (1974). It is, also, strictly a question for the jury as to whether the intoxication has negated the malice required in murder and which differentiates murder and manslaughter. State v. Duke, 110 Ariz. 320, 518 P.2d 570 (1974).
The admission of expert testimony is a question within the sound discretion of the trial court and will not be altered absent a showing of prejudicial abuse. State v. Kevil, 111 Ariz. 240, 527 P.2d 285 (1974).
In this case, appellant offered the testimony of Dr. Cleamond Eskelson, a research biochemist and Ph.D. who had researched the biological effects of alcohol and conducted group therapy sessions for alcoholics, among his other credentials. He was allowed to testify to the scientific method of predicting blood alcohol levels at certain times, the absorption rate of alcohol, and what appellant's blood alcohol level might have been at the time of the shooting. He was also allowed to testify to the statutory presumptions in Arizona regarding driving while intoxicated, that appellant was well above the presumptive level, and to the increased ability of alcoholics to "handle" alcohol. However, in the belief that defense counsel was going to ask Dr. Eskelson to form an opinion with regard to appellant's specific intent, forbidden by State v. Briggs, 112 Ariz. 379, 542 P.2d 804 (1974), the trial court granted a state's motion in limine to preclude the doctor from testifying to the effects of alcohol on the body.
We think the trial court properly excluded that testimony, but for a different reason. With regard to the subject matter of expert testimony, we have recently said,
"The primary consideration in determining the admissibility of expert opinion evidence is whether the subject of inquiry is one of such common knowledge that people of ordinary education could reach a conclusion as intelligently as the witness or whether, on the other hand, the matter is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." State v. Owens, 112 Ariz. 223, 227, 540 P.2d 695, 699 (1975).
An offer of proof was made by the defense; the doctor was examined and cross-examined in the absence of the jury. His testimony consisted of statements such as, alcohol causes the brain's "social restraint centers . . . (to be) . . . inhibited," that "alcohol . . . (has) . . . a dual effect with anger" and "the alcoholic . . . (tends to operate) . . . on an emotional rather than on a . . . thinking level." Although defense counsel strenuously argued that the chemical effects of alcohol are not common knowledge, it is clear from the offer of proof that the ultimate result of the doctor's testimony was going to be the observation that alcohol affects human behavior, sometimes very adversely.
This, we think, is a matter of common experience and knowledge, and clearly "an area where the jury could . . . intelligently determine the issue . . . based on their own ordinary judgment and practical experience". State v. Knapp, 114 Ariz. 531, 541, 562 P.2d 704, 714 (1977). There was no need for the expert to assist the triers of fact on this issue. It follows, therefore, that there was no prejudicial error in precluding this expert testimony, whatever the trial court's rationale.
The second contention with which we are concerned is that the trial court should have granted appellant's motion for a new trial, based on prosecutorial misconduct, i. e., prejudicial remarks by the prosecutor during closing arguments.
The first objectionable statement by the prosecutor is said by appellant to have been an expression of his opinion and misstatement of the law regarding intoxication and intent. We agree. The following occurred during the prosecutor's closing argument:
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