State v. Olsen

• Decision Date: 21 April 1988
• Docket Number: No. 1,CA-CR,1
• Citation: 760 P.2d 603,157 Ariz. 603
• Parties: STATE of Arizona, Appellee, v. Martin B. OLSEN, Appellant. 11077.
• Court: Arizona Court of Appeals

Page 603

760 P.2d 603

157 Ariz. 603

STATE of Arizona, Appellee, v. Martin B. OLSEN, Appellant.

No. 1 CA-CR 11077.

Court of Appeals of Arizona Division 1, Department D.

April 21, 1988.

Review Denied Sept. 14, 1988.

[157 Ariz. 604] Robert K. Corbin, Atty. Gen. by William J. Schafer III, Chief Counsel, Crim. Div., and Vicki Gotkin Adler, Asst. Atty. Gen., Phoenix, for appellee.

Ely, Bettini and Ulman by Herbert L. Ely, Phoenix, for appellant.

OPINION

FROEB, Presiding Judge.

Following a jury trial, appellant was convicted of negligent homicide, a dangerous offense. After a lengthy mitigation hearing, the trial court imposed the mandatory minimum sentence of four years imprisonment.

The facts at trial were essentially undisputed. The shooting death of the victim in this case occurred when appellant fired a .38 caliber revolver at two men leaving the parking lot of a bar in Apache Junction. The two men had just caused extensive property damage, frightening the bar patrons. When the men started throwing glasses around the bar, the patrons fled into the parking lot. Appellant decided that he would stop the men long enough for the police to arrive and removed a revolver from the glove compartment of his car. He testified that he used the weapon in 1971 to kill a rattlesnake, but since then he had not used the weapon for anything other than target practice with stationary objects. Appellant nevertheless attempted to shoot out one of the tires of the vehicle as it sped from the parking lot with the tires smoking and squealing.

As the vehicle passed by the front of a swimming pool located at a motel directly across the street from the bar, appellant fired the fatal shot. The bullet entered the left side of the victim's throat, as she lay suntanning in the motel pool area. The bullet lacerated both her jugular vein and left common carotid artery and transected her spinal cord. Although there was some dispute in the testimony as to whether the bullet ricocheted, the medical examiner testified that the bullet wound did not appear, in his experience, to be consistent with a ricochet. The victim died soon after being struck by the bullet.

On appeal, appellant raises a number of issues attacking the applicability and constitutionality of the mandatory sentencing scheme imposed upon conviction of a "dangerous" offense. He also argues that: (1) the court should have informed the jury of the effect of a finding of "dangerousness"; (2) the trial court erred in refusing to give an instruction regarding appellant's right to apprehend a fleeing felon; (3) the trial court erred in failing to grant a judgment of acquittal; and (4) the trial court erred in permitting admission of character evidence of the deceased.

APPLICABILITY OF THE MANDATORY SENTENCE

Appellant argues that the legislature did not mean to apply the mandatory sentencing scheme in a case "such as this where all the ingredients of the crime constitute the only offense." (Emphasis by appellant.) He argues that when the elements of a crime include the "enhancer," here the use of a gun, the mandatory sentencing provisions do not apply. Appellant apparently argues that the provisions of A.R.S. § 13-604(F) do not apply to a negligent homicide committed with a deadly weapon because the use of a deadly weapon constitutes the offense.

Initially, we note that appellant was convicted of a violation of A.R.S. § 13-1102, which states in part:

A person commits negligent homicide if with criminal negligence such person causes the death of another person.

"Criminal negligence" is defined in A.R.S. § 13-105(6)(d) as follows:

"Criminal negligence" means, with respect to a result or to a circumstance described by a statute defining an offense, that a person fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

(Emphasis added.)

Negligent homicide is established by showing that a person failed to perceive a substantial and unjustifiable risk that his or her conduct would cause the death of another. State v. Fisher, 141 Ariz. 227, 686 P.2d 750, cert. denied, 469 U.S. 1066, 105 S.Ct. 548, 83 L.Ed.2d 436 (1984). When a dangerous instrument or deadly weapon is involved in the homicide and "dangerousness" is alleged by the prosecutor, A.R.S. § 13-604(F) may come into play. The prosecutor alone decides whether to invoke the provisions of A.R.S. § 13-604, and his decision has been held not to violate separation of powers, due process or equal protection. See State v. Buchholz, 139 Ariz. 303, 308, 678 P.2d 488, 493 (App.1983) (that the prosecutor can alone decide whether to invoke A.R.S. § 13-604(H) does not violate either due process or equal protection); see also State v. Cummings, 148 Ariz. 588, 591, 716 P.2d 45, 48 (App.1985) (enhanced sentence pursuant to A.R.S. § 13-604(H) does not violate separation of powers). A.R.S. § 13-604(F) reads, in part:

[A] person ... who stands convicted of a class 4, 5 or 6 felony involving the intentional or knowing infliction of serious physical injury or the use or exhibition of a deadly weapon or dangerous instrument without having previously been convicted of any felony shall be sentenced to imprisonment for not less than the sentence and not more than twice the sentence authorized in § 13-701 for the offense for which the person currently stands convicted and shall not be eligible for suspension or commutation of sentence, probation, pardon, parole, work furlough or release from confinement on any other basis ... until not less than one-half of the sentence imposed by the court has been served.

(Emphasis added). When the state alleges a violation of A.R.S. § 13-604(F), a defendant convicted of a class 4 felony would be subject to at least a mandatory, minimum four-year term of imprisonment and would not be eligible for parole until not less than one-half the sentence imposed by the court had been served. A.R.S. §§ 13-604(F), 13-701(B)(3).

Appellant's suggestion that the mandatory sentencing scheme did not apply because the elements of the crime included the "enhancer" is not persuasive. Appellant confuses the elements of the crime with the mode of its commission. Reading A.R.S. § 13-1102, it is clear that the use of a gun or any other deadly weapon is not an element of the offense of negligent homicide and that the offense can be committed without the use of a deadly weapon. Furthermore, if the death of a victim is not caused by the use or exhibition of a deadly weapon or dangerous instrument and the death does not occur as the result of "intentional or knowing infliction of serious physical injury," but occurs as a result of a gross deviation from the standard of care, it is possible that the negligent homicide will not be a "dangerous" offense subject to the enhancement provisions of A.R.S. § 13-604(F).

It was not an "element" of the offense which caused the enhancement of appellant's sentence in this case, but the use of a deadly weapon--an enhancement factor adopted by the legislature. State v. Hurley, 154 Ariz. 124, 741 P.2d 257 (1987), leaves no doubt that the legislature may properly enhance the punishment for the commission of an offense in which a firearm is used.

In Hurley, the defendant was convicted by a jury of seven counts of armed robbery and one count of aggravated assault. The jury found all offenses dangerous because Hurley had used or exhibited a deadly weapon. See A.R.S. § 13-604(F), (G). Thereafter, a finding was made by the trial court that Hurley committed the robberies while on release from conviction of a felony offense, and Hurley's sentence was enhanced pursuant to A.R.S. § 13-604.02(A) (enhancing the sentence of one convicted of a dangerous felony, while on release from confinement for conviction of a prior felony). The supreme court held that the finding that Hurley was on release was not improper because it was made by the trial judge, as opposed to the jury. The court held that release status is not an element of the offense that must be proven beyond a reasonable doubt in front of a jury, but is a sentencing factor. The court stated that the legislature has the power to designate sentencing factors to be utilized in determining the appropriate sentence. See Hurley, 154 Ariz. at 130-31, 741 P.2d at 263-64.

Under the reasoning of Hurley, we hold that the use of a firearm may properly be considered in determining the appropriate sentence of one convicted of negligent homicide. See also Cummings, 148 Ariz. at 591, 716 P.2d at 48 (defining crimes and appropriate sanctions is a legislative function). We find no error in the use of dangerousness as a sentencing factor in this case. The state alleged A.R.S. § 13-604 with respect to this offense and the jury found appellant guilty of a "dangerous" offense. It was, therefore, incumbent upon the trial judge to impose the mandatory sentence because, as a matter of law, it applied to the facts of this case. Cf. State v. Sands, 145 Ariz. 269, 277-78, 700 P.2d 1369, 1377-78 (App.1985) (trial court required by law to treat offense as repetitive under A.R.S. § 13-604(H)).

THE CONSTITUTIONALITY OF THE MANDATORY SENTENCING STATUTE

In the introduction to this argument, appellant suggests that this court review the holding in State v. Bly, 127 Ariz. 370, 621 P.2d 279 (1980), which sustained mandatory sentences in Arizona. He states that this court should adopt the reasoning of the dissenting opinion in State v. Garcia, 141 Ariz. 97, 685 P.2d 734 (1984). Bly contains a lengthy discussion on the sentencing concepts of the criminal code adopted in 1978, but does not address the due process and equal protection arguments raised by appellant in this appeal. Bly, however, did reject double jeopardy and double punishment...