State v. Moore

• Citation: 506 P.2d 242,109 Ariz. 111
• Decision Date: 21 February 1973
• Docket Number: No. 2280,2280
• Parties: STATE of Arizona, Appellee, v. Rockey MOORE, Appellant.
• Court: Arizona Supreme Court

Page 242

506 P.2d 242

109 Ariz. 111

STATE of Arizona, Appellee, v. Rockey MOORE, Appellant.

No. 2280.

Supreme Court of Arizona, In Banc.

Feb. 21, 1973.

Rehearing Denied March 27, 1973.

Gary K. Nelson, Atty. Gen., Phoenix, Albert M. Coury, Former Asst. Atty. Gen., Mesa, William P. Doxon, Asst. Atty. Gen., Phoenix, for appellee.

Edward P. Bolding, Pima County Public Defender, Howard A. Kashman, Former Pima County Public Defender, Eleanor D. Schorr, Deputy Public Defender, Tucson, for appellant.

LOCKWOOD, Justice:

Rockey Moore, hereinafter referred to as the defendant, presents a consolidated appeal, both from the denial of a writ of habeas corpus brought prior to his prosecution on a charge of first degree murder, and from his conviction and sentence of life imprisonment on the murder charge.

The defendant shot and killed Robert Greaber in Pima County on December 25, 1967, after which he immediately fled to California. On December 27th the defendant was charged with murder in violation of A.R.S. § 13--451 to 453 (1956), and a warrant was issued for his arrest. On or about that same day, he was apprehended and incarcerated in California pursuant to a California charge; he was subsequently tried, convicted and began serving his sentence in California.

In January, 1968, Pima County authorities filed a detainer against defendant with California correction authorities. On May 6, 1968, the defendant wrote to the Tucson Chief of Police asking that he be extradited back to Arizona to stand trial on the murder charge. The letter was forwarded to the Pima County Attorney who responded to defendant on May 23, 1968, informing him that although 'it may take some time * * *' the county attorney had 'begun steps to secure your presence here for trial.' On June 7th, the defendant wrote a letter to the Pima County Attorney asking that he be extradited 'as quick as possible.' On July 9th the Governor of Arizona, at the request of the Pima County Attorney, transmitted to the Governor of California a formal requisition for the extradition of the defendant. In the letter was a statement the defendant was confined in the California medical facility at Vacaville, California.

On June 11, 1969 the County Attorney wrote the Superintendent of the prison in Deuel Vocational Institution at Tracy, California where defendant then was:

'With reference to your inquiry to the Sheriff of Pima County, we wish to inform you that if Rockey Moore is released we intend to prosecutire (sic) and to please keep our detainer in effect.

'Thank you for your cooperation.'

On May 27, 1970 the Superintendent of Deuel Vocational Institution in Tracy, California responded to the extradition request as follows:

'This is to advise you that the above-named subject was received at this institution on May 20, 1970 from the Reception Guidance Center, California Medical Facility, Vacaville, California with a new term.

'On file, we have both Governor's requisition of extradition for subject. We would like to determine if it is your desire to extradite subject now and return him after the trial or take custody at the time of his release.

'Subject is scheduled to appear before the California Adult Authority in September 1970.

'Please be assured of our continued cooperation in matters of mutual concern.'

Apparently defendant had been transferred from Vacaville, California to Tracy, California. Three days after receiving the letter, the new Pima County Attorney responded, stating that 'it is our desire to extradite subject now * * *.'

The defendant was brought to Arizona sometime during the next month, and following a resetting of a preliminary hearing from July 11 to July 20, 1970, defendant was held to answer the charge of murder. Trial began on October 14th, and defendant was convicted and subsequently sentenced on November 5, 1970.

Prior to his trial, defendant filed a Petition for Writ of Habeas Corpus Ad prosequendum, on the contention that he was denied his right to a speedy trial as guaranteed under the Sixth Amendment to the United States Constitution, and by Article 2 § 24 of the Arizona Constitution, A.R.S. This was denied, and defendant appeals from the judgment and sentence and from the denial of the writ of habeas corpus.

In defining the parameters of the federal constitutional protection, the United States Supreme Court has directly confronted the question of whether the reach of the Sixth Amendment extends to an accused who is prevented from having a speedy trial because he is imprisoned in another state. Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970); Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). The latest case which discusses the subject is Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, handed down on June 22, 1972. It cites Dickey, supra, and proceeds to discuss the entire concept of speedy trial.

The Dickey case involved a situation where a defendant was tried more than seven years after the occurrence of the robbery of which he was accused. He was serving time in a federal prison in another state and made repeated attempts to secure a speedy trial on the robbery charge unsuccessfully. The United States Supreme Court in reviewing the case stated that there was sufficient evidence in the record to remand it with instructions to dismiss the charges, nevertheless said:

'Crowded dockets, the lack of judges or lawyers, and other factors no doubt make some delays inevitable. Here, however, no valid reason for the delay existed; it was exclusively for the convenience of the State. On this record the delay With its consequent prejudice is intolerable as a matter of fact and impermissible as a matter of law.' 398 U.S. at 38, 90 S.Ct. at 1569, 26 L.Ed.2d at 32.

We find no such evidence here of prejudice to the defendant. He was given a preliminary hearing; he subpoenaed witnesses. At the trial it is true one of the witnesses for the prosecution could not be located in spite of diligent efforts, and her testimony, given at the preliminary hearing where defendant had had adequate opportunity to cross-examine her, was available and used.

Therefore, since Dickey and Barker both require a showing of prejudice in order to reverse, we cannot say that defendant was prejudiced, and his claim of lack of speedy trial is not tenable.

The defendant has also charged errors in his trial and conviction on the charge of first degree murder. We will take up first the question of whether there was sufficient evidence to support a verdict of first degree murder.

According to the undisputed facts brought out at the trial, the chain of events and circumstances leading up to the shooting is as follows: The victim was a big, muscular, husky, man forty-six years of age. During the evening of December 24, 1967, he had been drinking heavily. After making the rounds of various bars, he, his girlfriend Clairann Randolph, and another couple went to the apartment of Lisa Larson, a friend of Clairann's. They arrived at around 1:15 on the morning of December 25th. By this time the victim had become somewhat intoxicated. The defendant and seven or eight other persons were in the apartment when the victim arrived. None of these people knew the victim or had ever met him previously. The victim's conduct from the time he entered the apartment was violent, belligerent and intimidating; he spoke abusively and within a very short time tried to start a fight with several of the people there.

Shortly after he arrived, the victim for no apparent reason asked one or two of the men in the apartment if they wanted to go outside, presumably to fight. After they declined, the victim approached the defendant with the same question. The defendant, who was nineteen years old and less than average build declined. The victim however persisted. He again asked that he and the defendant go outside. From this point on the prosecution and defense testimony somewhat differs. The defendant went into the kitchen and came out with a gun. He pointed the gun at the victim and said 'I am begging you to leave me alone or I will have to shoot you,' or 'I don't want to shoot'. The victim responded by throwing up his arms and saying 'go ahead and shoot'.

Shortly thereafter, the defendant went out the back of the apartment into the patio, with the victim following him. Clairann Randolph, the victim's girlfriend, followed him outside and attempted to restrain him bodily. She also asked the defendant to go home but he did not respond. The defendant then started walking rapidly away from the apartment, Clairann and the victim following. After they had gone about one and one half blocks, the defendant at times running and at times 'trotting', and the victim always chasing behind, the victim again said 'go ahead and shoot' and threw up his arms. The defendant thereupon turned around and shot the victim three times, apparently killing him instantly.

After the shooting the defendant fled, first back to the apartment, and then eventually to California. The prosecution presented medical testimony indicating that the third shot was fired while the victim was already lying on the ground.

The Arizona Statutes define murder as '* * * the unlawful killing of a human being with malice aforethought.' A.R.S. § 13--451. The defendant claims there was insufficient evidence of malice. However, as the use of a deadly weapon is in itself sufficient evidence for the jury to find malice, State v. Sellers, 106 Ariz. 315, 475 P.2d 722 (1970); State v. Hickson,104 Ariz. 218, 450 P.2d 408 (969); State v. Intogna, 101 Ariz. 275, 419 P.2d 59 (1966), appeal after remand, 103 Ariz. 455, 445 P.2d 431 (1968), we cannot say that the jury finding of malice was without reasonable justification.

It is a universal rule that to sustain a conviction of first degree murder, all the elements must be proven beyond a reasonable doubt: intent to kill, malice, deliberation and...