State v. Prewitt

• Decision Date: 28 March 1969
• Docket Number: No. 1785,1785
• Citation: 104 Ariz. 326,452 P.2d 500
• Parties: STATE of Arizona, Appellee, v. Clifford E. PREWITT, Appellant.
• Court: Arizona Supreme Court

Page 500

452 P.2d 500

104 Ariz. 326

STATE of Arizona, Appellee, v. Clifford E. PREWITT, Appellant.

No. 1785.

Supreme Court of Arizona, In Banc.

March 28, 1969.

Rehearing Denied April 29, 1969.

Gary K. Nelson, Atty. Gen., Darrell F. Smith, former Atty. Gen., Carl Waag, Asst. Atty. Gen., for appellee.

Michael A. Bosco, Jr., Arthur E. Ross, Phoenix, for appellant.

McFARLAND, Justice.

Defendant, Clifford E. Prewitt, hereinafter referred to as defendant, was charged with the crime of murder of his father and convicted of second-degree murder and sentenced on December 12, 1966, by the court to a term of the rest of his natural life in the Arizona State Prison; and on July 5, 1967, the court, on its own motion, vacated the sentence imposed--evidently because it was not a proper sentence--and appointed two psychiatrists to examine defendant pursuant to Rule 333, Rules of Criminal Procedure, 17 A.R.S. On August 7, 1967, after a hearing, the court found defendant insane and ordered him committed to the Arizona State Hospital. Later, after he was pronounced sane, the court, on the 27th day of October 1967, sentenced defendant to a term of not less than ten years nor more than his natural life to imprisonment in the Arizona State Prison with the sentence to commence as of May 13, 1966. From the judgment and sentence of the court, defendant appeals.

Defendant, at the time the offense was committed, was approximately forty-one years old. He was born of poor parents from the mountains of eastern Kentucky. His parents were separated when he was approximately twelve years of age. His home life was further complicated by the fact that his father, the decedent, forcibly maintained custody of defendant and his younger brother after the separation. His father had been a moonshiner in Kentucky, and defendant was encouraged to start drinking at an early age. Defendant was educated only through the tenth grade, and dropped out of school due to the necessity to earn a livelihood. He was married at an early age--approximately seventeen years---and worked as a truck driver to provide for his wife and family. He later built up his own trucking business which he eventually had to give up because of health conditions. During most of his life he was a borderline alcoholic, with a background of psychological disturbances. Many of his mental problems emanated from the alleged cruel treatment he received from his father.

In 1959 defendant's oldest child developed arthritic conditions, and for this reason he moved to Arizona. After arriving in Arizona he was gainfully employed, and for a period of time had his own business. Defendant had quit drinking, but approximately three years prior to the killing of his father he again started drinking excessively, which resulted in a deterioration of his marriage, a divorce, and the loss of his ability to hold a job. He remarried, and, at the time of the incident, had become financially dependent upon his second wife and his father. He began to realize that he had mental problems, and from time to time--either on his own initiative or on petitions filed by members of his family--he was committed to the Arizona State Hospital for treatment as an outpatient.

Defendant had sought help from a minister, and at times had stopped drinking, but on the day of the incident he started drinking heavily and patronized several taverns before he went home. His father, the decedent, lived with defendant, and upon defendant's arrival home a quarrel started between him and his father. The only eyewitness to the incident was his 13-year-old stepdaughter, Marilyn Fleenor, who testified that during an argument defendant pulled a .357 Magnum pistol and a holster from his dresser drawer; that decedent took an ax and commenced to hit the gun and holster in an attempt to make defendant put it away. She further testified that defendant threatened to kill his father if he continued to argue with him. According to Marilyn, the decedent raised the ax and hit the gun several times, trying to knock it out of defendant's hands. Defendant then loaded the gun, and stood in the doorway of decedent's room. The decedent still had the ax in his hand. However, there was no evidence of an attack. It was at this point that defendant fired one fatal shot through his father's chest.

Defendant first assigns as error the failure of the trial court to direct a verdict of acquittal as to first and second-degree murder, contending that the evidence and the law did not warrant the submission of first and second-degree murder to the jury, and that the State had not carried the burden of proof as to the elements of those offenses.

Defendant had entered a plea of not guilty and not guilty by reason of insanity. His counsel now contends the evidence indicates that defendant had been provoked by decedent's conduct, and that he had no alternative but to shoot him; also, that the State had failed to carry the burden to prove sanity at the time of the commission of the offense; and that, due to defendant's insanity, he was incapable of committing first or second-degree murder. At the end of the State's case, counsel moved for a directed verdict; and, at the end of all the testimony, he again made a motion for acquittal as to first and second-degree murder. Both were denied.

In State v. Schantz, 98 Ariz. 200, 403 P.2d 521, we held that where insanity is an issue the burden is upon the State 'to establish beyond a reasonable doubt' the converse. Defendant urges that the evidence of the State was not sufficient to show beyond a reasonable doubt that he was sane in accordance with the test set forth in State v. Schantz, supra; namely:

'This test of legal insanity has two elements. An accused must have had at the time of the commission of the criminal act:

'(1) Such a defect of reason as not to know the nature and quality of the act, Or

'(2) If he did know, that he did not know he was doing what was wrong.'

He calls attention to Rule 270, Rules of Crim.Proced., 17 A.R.S, which provides:

'If at the close of the evidence for the state or at the close of all the evidence the court is of the opinion that the evidence is insufficient to warrant a conviction, it may, and on the motion of the defendant shall, direct the jury to acquit the defendant.'

Counsel urges that under this rule it was the duty of the court to have directed a verdict of acquittal as to first and second-degree murder.

Rules 273, Rules of Crim.Proced., 17 A.R.S., provides:

'All questions of law shall be decided by the court and all questions of fact by the jury, except as provided in Rule 173. The jurors shall apply to the facts the law as given to them by the court.'

This Court's interpretation of this rule is set forth in State v. Norgard, 103 Ariz. 381, 442 P.2d 544:

'In reviewing the sufficiency of the evidence to support a conviction the evidence must be viewed in light most favorable to the state, and all reasonable inferences must be resolved against defendant. In considering whether a verdict is contrary to the evidence we do not decide whether we would reach the same conclusion as the jury. The question is whether there is competent evidence to support the conclusions found. * * *'

Counsel for defendant relies largely upon the testimony of the expert witnesses in regard to the mental condition of defendant at the time of the commission of the crime. In State v. Cano, 103 Ariz. 37, 436 P.2d 586, we held:

'Defendant Cano contends most strenuously that where expert testimony of insanity has been presented--as in the instant case--then the state has a duty to present positive expert testimony of legal sanity in order to sustain its burden of proof. We are unable to agree with this contention. Expert-opinion testimony is merely evidence to be considered by the jury, together with all the facts and circumstances of the case. State v. McCabe, 251 Minn. 212, 87 N.W.2d 360. Such testimony is no more than a learned man's opinion, and as such it can rise no higher than the validity of the reasons and facts on which it is based. * * *

'The law has not yet been able to develop a perfect standard by which legal responsibility for crime is to be determined. See State v. Schantz, supra. (98 Ariz. 200, 403 P.2d 521) It is for this reason that the function of the jury becomes of even greater importance in cases where insanity is raised as a defense. In United States v. Pollard, D.C., 171 F.Supp. 474, the court stated the basis for this reasoning as follows:

"The psychiatrist merely expounds on the theoretical and clinical aspects of the problem. The jury evaluates his testimony, as it does the evidence on every other factual issue. That is the correct disposition, for the question whether society should assess punishment for criminal conduct is, in the last analysis, a moral judgment. The jury, being of the community, reflects its attitudes and speaks for it.'

"The wisdom of this approach is readily apparent. The opinions of experts, testifying as to the degree of responsibility of which the accused may be capable in view of possible mental disease, are, after all, nothing more than theories which are adopted to explain and account for a given act or course of conduct. Eminent phychiatrists have recognized that 'the best psychiatry is still more of art than of science', Sullivan, 'Psychiatry', 12 Encyl.Soc.Sci. 578, 580; that wide gaps in knowledge exist; that the validity of phychiatric theory can not be determined with scientific certainty. There is still comparatively little known about causes, let alone effective remedies, and the experts are not yet agreed on basic definitions. Nor can it be ignored that not only is there disagreement among experts, but that some psychiatric doctrines, once considered authoritative, are now rejected. The mystery of human behavior still remains to be solved. These reflections do not deny the value of expert testimony but leaves it to its proper...