State v. Powers

Decision Date31 October 1977
Docket NumberNo. 3862,3862
Citation571 P.2d 1016,117 Ariz. 220
PartiesSTATE of Arizona, Appellee, v. Lloyd Kenneth POWERS, Appellant.
CourtArizona Supreme Court

Bruce E. Babbitt, Atty. Gen., William J. Schafer, III, Chief Counsel, Crim. Div., Galen H. Wilkes, Asst. Attys. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender, Rudy J. Gerber, Deputy Public Defender, Phoenix, for appellant.

GORDON, Justice:

Appellant was convicted of involuntary manslaughter, a violation of A.R.S. § 13-456. We have accepted jurisdiction of his appeal pursuant to 17A A.R.S. Supreme Court Rules, Rule 47(e).

At trial, the testimony revealed a rather bizarre chain of events culminating in the death of Mr. John Boushey. Apparently, Mr. Boushey and appellant had never met prior to September 30, 1975. On that evening they had separately journeyed to a bar in Phoenix where, after a few drinks, they played a game of pool. Each man placed a ten dollar wager on their next game, which appellant handily won. At this point, the facts become less than clear, however the testimony indicates the following events took place about 11:00 p.m. Mr. Boushey accused the appellant of cheating, and a brief scuffle ensued. After the other patrons broke up the altercation, the parties shook hands and agreed to play a third game with the same wager. Appellant then left the room momentarily; upon returning, he discovered Mr. Boushey had taken the $20.00 from the bar and had left on foot. Attempting to recover the money, appellant chased Mr. Boushey along Cave Creek Road which was unlighted. When he caught up with the victim, blows were again exchanged. The victim attempted to cross the road in order to escape. Then, according to the state, appellant pushed the victim into the path of the oncoming traffic. A van, being unable to stop, struck Mr. Boushey who died from the injury twenty-five days later. Appellant, on the other hand, contends he grabbed Mr. Boushey and unsuccessfully attempted to restrain him from entering the path of the oncoming traffic.

Eight issues have been raised on appeal, the first of which concerns 17 A.R.S. Rules of Criminal Procedure, Rule 5.6. Criminal Rule of Procedure 5.6

Rule 5.6 states:

"Within 3 days after waiver or conclusion of the preliminary hearing, the magistrate shall transmit all papers and records in the case, together with a prescribed transmittal form, to the clerk of the Superior Court. The reporter shall file the transcript in the Superior Court no later than 20 days after the completion of the hearing."

Appellant's case was kept under advisement by the magistrate for approximately six weeks before an order was issued holding the appellant to answer. This delay, it is argued, necessitates dismissal. We do not agree. Clearly, the time in excess of the three days permitted was an abuse of discretion. State ex rel. Berger v. Jennings, 110 Ariz. 441, 520 P.2d 313 (1974). However, appellant has not alleged he was prejudiced by this delay. Since the Rules of Criminal Procedure do not provide for a dismissal of an action if Rule 5.6 is violated, we feel the proper procedure for enforcing the three day time limit lies within 17A A.R.S., Rules of Procedure for Special Actions. Appellant, therefore, was not entitled to a dismissal on these grounds.

Inflammatory Photographs

The second issue raised concerns the introduction into evidence of eleven photographs of the deceased. Appellant raised an objection at the time of trial, and now argues the trial court abused its discretion in admitting this evidence. We agree.

The pictures were taken twenty-five days after the incident when death finally arrived. From the photographs, it is clear that a significant deterioration occurred in the victim's appearance during this twenty-five day period. Also, according to the pathologist, some of the cuts and abrasions had already healed. These facts coupled with the medical procedures which had been performed on the body resulted in the photographs not being representative of the condition of Mr. Boushey on the day of the accident. Two of the photographs were a full length view of the corpse on a metal tray extending from the body storage vault; others were closeups of the face, limbs and torso. Dried blood was present under the nose and about the mouth; bloody gauze surrounded a rod which had been inserted through the lower left leg in order to apply traction, and a bloody opening remained in the neck where an airway had been inserted. The face appeared emaciated and ocher colored. Other photographs included a closeup of an arm with a long gaping yellow pus filled wound, a contusion to the right hip, and a bloody cast on the right leg.

At the trial, appellant offered to stipulate to the nature and location of the deceased's injuries, the cause of death (a subdural hemorrhage of the brain), and to the identity of the victim. The fact that the deceased died as a result of being struck by a van driven by a third person was uncontested. In fact, the sole issue in the trial was whether the appellant pushed the deceased, or whether he was attempting to avoid the accident by restraining or pulling back Mr. Boushey from the path of the van. Yet the state still proffered the pictures, opining they were probative of the severity of the impact. Clearly, this is immaterial to whether the deceased was pushed into the path of the vehicle. The witnesses were united in their estimate of the speed of the van as being approximately 25 miles per hour. Similarly, there was no disagreement as to the interaction of the vehicle with the decedent's head being the direct cause of death.

In its briefs, the state abandoned the argument made to the trial court, and relied on a new theory. Without clarification, it now argues "they were relevant in determining how the victim came in contact with the car which would go to proving or disproving the state's theory that the victim was pushed in front of the (North-bound) van". The uncontradicted testimony described Mr. Powers as standing behind Mr. Boushey, with both men facing eastward. Just prior to the accident, Mr. Boushey either was pushed or stumbled forward. The van then impacted with Mr. Boushey's legs knocking him up, into the windshield. From these uncontradicted facts, it seems clear that the determinative issue turns on what propelled the deceased forward into the roadway his own actions or a push. In either instance, the angle of impact would have been the same. Thus, neither of the state's theories would justify placing the photographs into evidence. Nor do we find the pictures probative of any other issue. This was not a case where malice aforethought was in issue, as in State v. Ferrari, 112 Ariz. 324, 541 P.2d 921 (1975); similarly the pictures were not admissible under any of the myriad of theories catalogued in State v. Thomas, 110 Ariz. 120, 515 P.2d 865 (1973).

Although the admission of the photographs was an abuse of the trial court's discretion, State v. Makal, 104 Ariz. 476, 455 P.2d 450 (1969); State v. Robinson, 328 S.W.2d 667 (Mo.1959), we must next determine whether their admission constituted prejudicial error. The answer turns on whether there is a "reasonable probability under the facts that the verdict might have been different had the error not been committed". State v. Deschamps, 105 Ariz. 530, 532, 468 P.2d 383, 385 (1970). If we answer this in the affirmative, then the admission of the photographs was not harmless.

Here, as in Makal, "the photographs were highly inflammatory, without any particular saving purpose, and could only have tended to prejudice the defendant in the minds of the jurors". 104 Ariz. at 478, 455 P.2d at 452. See also, State v. Beers, 8 Ariz.App. 534, 448 P.2d 104 (1968). Virtually every eye witness could not, with certainty, testify as to whether appellant pushed or tried to save the deceased. The four occupants of the van, who, of all the witnesses, had the best view of the incident could not. The one unwaivering witness, Charles Fisher, was traveling behind the van on the unlighted street at the time of the accident. This witness only viewed the actions for one or two seconds and could not see appellant's hands. He testified:

"Q. Did you see Mr. Powers throw his arms up in the air at any point prior to the accident?

"A. No. But, you know, I was driving and everything, and I couldn't keep my eyes on him constantly.

"Q. Didn't keep your eyes on Mr. Boushey constantly, either did you?

"A. Well no. I couldn't, I was driving."

Due to the lack of positive evidence on the critical issue of this case, we feel it is reasonably probable that a different verdict may have been reached, were it not for the inflammatory photographs. For this reason the error in admitting the photographs was not harmless. Although we are reversing the conviction and remanding for a new trial, a number of other issues remain which are of a recurring nature thereby necessitating our attention.

Superseding Cause

Appellant asserts the evidence presented at trial was insufficient to convict because the van constituted an intervening cause for which he cannot be held accountable.

"To warrant a conviction for homicide, the death must be the natural and probable consequence of the unlawful act, and not the result of an independent intervening cause in which the accused does not participate, and which he could not foresee. If it appears that the act of the accused was not the proximate cause of the death for which he is being prosecuted, but that another cause intervened, with which he was in no way connected, and but for which death would not have occurred, such supervening cause is a defense to the charge of homicide." 1 Wharton's Crim. Law and Pro., § 200, p. 448 (12th Ed. 1957) (Emphasis added.)

See also State v. Ulin, 113 Ariz. 141, 548 P.2d 19 (1976).

Without question, it is foreseeable that vehicles continuously...

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