State v. Ramirez

• Citation: 569 P.2d 201,116 Ariz. 259
• Decision Date: 21 July 1977
• Docket Number: No. 3428,3428
• Parties: STATE of Arizona, Appellee, v. Lupe Hernandez RAMIREZ, Appellant.
• Court: Arizona Supreme Court

Page 201

569 P.2d 201

116 Ariz. 259

STATE of Arizona, Appellee, v. Lupe Hernandez RAMIREZ, Appellant.

No. 3428.

Supreme Court of Arizona, In Banc.

July 21, 1977.

Bruce E. Babbitt, Atty. Gen. by Heather Sigworth, Asst. Atty. Gen., Phoenix, for appellee.

Stanfield, McCarville, Coxon, Cole & Fitzgibbons by A. Thomas Cole, Casa Grande, for appellant.

HAYS, Justice.

Appellant Lupe Ramirez was indicted and tried on an open charge of murder. On January 23, 1976, he was found guilty by a jury of murder in the first degree. From this conviction and a sentence of life imprisonment he appeals. We have jurisdiction pursuant to A.R.S. § 13-1711 and § 12-120.21(A)(1).

He raises ten issues on appeal:

1. Did the prosecutor commit error during voir dire of the jury?

2. Did the prosecutor commit error by advising the jury that appellant had been indicted by the grand jury?

3. Did the "death-qualification" of the jury deprive him of his Sixth Amendment rights?

4. Was it error to admit the victim's statement?

5. Did appellant knowingly and intelligently waive his Miranda rights?

6. Was it error to admit appellant's threats to kill an unidentified third person?

7. Was error committed concerning the expert psychiatric testimony of Dr. Tuchler?

8. Were the prosecutor's closing remarks improper?

9. Did the court err in refusing a voluntary manslaughter instruction?

10. Did the court err in failing to consider time spent incarcerated prior to the imposition of sentence?

On August 14, 1975, Teresa Ramirez was shot and killed by her husband of 21 years, Lupe Ramirez, the appellant herein. In the weeks and months prior to the murder, the appellant and Teresa had been experiencing marital difficulties. Due to these problems the appellant decided to take a short vacation from both his wife and his job and traveled by himself to visit his brother in Texas. He returned in the morning of August 14, 1975, and brought with him from Texas a .38 Special pistol which he had left at his brother's the year before. On that morning, appellant, who had not drunk alcohol for five or six years, began drinking quite heavily and continued drinking throughout the day. At about 6:00 P.M. the appellant obtained a box of shells from his friend, Johnny Pena, and went "hunting" with Pena. Five shots were fired by Pena and thereafter the gun was reloaded. The two then returned via automobile to the appellant's house. No one was home so they left but returned a while later. The appellant, carrying the gun, entered the house while his friend remained outside unaware of what was transpiring. Finding his wife sitting at the kitchen table, the appellant approached her, said "Now you can't laugh at me anymore," and shot her four times, killing her. He then ran out and drove to another friend's house, dropping Mr. Pena off at the corner. He was found the next day at about 5:00 P.M. at a local bar, was given his rights and arrested.

Prior to trial, a Rule 11 competency hearing was ordered and psychiatric examinations were conducted. Appellant claimed repeatedly that he could not remember killing his wife and there was testimony that appellant had suffered from alcoholic amnesia on the day of the murder. The trial court determined that appellant was competent to stand trial. At trial, the defense did not attempt to rebut the facts as presented above but rather relied principally on an insanity defense premised on alcoholic amnesia.

Further facts will be developed as they become pertinent in our consideration of the issues enumerated above.

I. VOIR DIRE OF JURY

Appellant first contends that the prosecution committed error during his voir dire of the jury in questioning the prospective jurors as follows:

"MR. HERAND: If the Court told all of you, instructed you at the close of the case that all witnesses are to be judged by the same standard regardless of race, profession, national origin, sex or religion, would you do as the Judge instructed you?

"If anybody feels they would not do as the Judge instructed, please let me know.

"Would you be able then to judge the defendant's testimony, if he decided to take the witness stand, with that same standard in mind.

"I take it from your silence then that you would apply the same standard to the defense witnesses as you would prosecution witnesses then." (emphasis added).

Appellant urges that the above-emphasized portion of the prosecutor's questioning caused the jurors to speculate on whether the defendant would (actually) take the stand and further subtly pressure the appellant into testifying at trial, thereby constituting improper comment on his privilege not to testify.

In a criminal trial a defendant has the absolute right not to testify and to be free from comment on the exercise of that right. State v. Whitaker, 112 Ariz. 537, 544 P.2d 219 (1975). In support of his contentions that he was denied that right here, the appellant relies on State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969). In that case, the trial judge, sua sponte, inquired of the prospective jury during voir dire whether any of them would feel that the defendant, by not taking the stand, was trying to hide something. We found this questioning to be palpably erroneous because it not only "pointedly directed the attention of the jurors" to the fact that the defendant might not take the stand, but it also suggested to the jury that in the event the defendant chose not to take the stand, it was due to the fact that he indeed had something to hide.

The prosecutor's line of questioning here was hardly as egregious as that propounded in Dessureault, in that it neither underscored the appellant's privilege to choose not to testify nor otherwise inferred that a failure to take the stand was an admission of guilt. Taken out of context, the bare statement referring to the defendant's prospective testimony may not appear to have been proper and at the least, we perceive the remarks to be ill-advised. However, taking into consideration, as we must, the questioning both preceding and following the remark at issue, it is clear that his questions were merely directed towards ferreting out prejudices or biases the jurors may have had towards the defense or prosecution and in this context were quite innocuous. In short, we do not think that the prosecutor's questioning unduly focused the jury's attention on the appellant's privilege not to testify and we therefore do not think that his remarks constituted comment which would require reversal. At the time the questioning occurred, defense counsel neither objected nor moved for a mistrial.

II. PROSECUTOR'S STATEMENT CONCERNING THE INDICTMENT

The appellant argues that the prosecutor committed error in his opening statement by mentioning the fact that the appellant had been indicted by the Pinal County Grand Jury. We cannot agree.

First of all, we note that no objection was lodged by defense counsel below. Fundamental error aside, the failure to object to improper remarks of counsel during argument constitutes a waiver thereof. State v. Wilson, 113 Ariz. 308, 553 P.2d 235 (1976); State v. Kelley, 110 Ariz. 196, 516 P.2d 569 (1973). There being no objection below, the point cannot now be raised on appeal.

However, considering the merits of the appellant's argument, we find that in view of the cautionary instructions given the jury by the court, the prosecutor's comment was harmless. The court instructed the jury that the charge is not evidence against the defendant; that they, the jury, must not infer guilt merely because he was charged with the crime; and further that the comments and arguments of counsel are not evidence. We hold that the instructions given to the jury obviated any prejudicial effect that may have inhered due to the prosecutor's remark. See United States v. Sutton, 446 F.2d 916 (9th Cir. 1971), cert. denied, 404 U.S. 1025, 92 S.Ct. 699, 30 L.Ed.2d 675 (1972).

III. EXCLUSION OF DEATH-SCRUPLED JURORS

The appellant maintains that the exclusion of three persons from the jury who objected to the death penalty denied him his right to a jury representative of the community and further that the practice of excluding the anti-death penalty jurors, stacked the jury with "prosecution-prone" people who implicitly are biased on the issue of guilt. In so arguing, the appellant relies heavily on Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). In that case, the United States Supreme Court held that where all jurors opposed to the death penalty are systematically excluded, the jury's sentence of death is unconstitutional as it denies the defendant the right to an impartial jury. The Court, however, refused to find that the jury was not impartial on the issue of guilt, saying that the evidence was too "tentative and fragmentary to establish that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt." 391 U.S. at 517, 88 S.Ct. at 1774. The appellant here, relying on several studies, ¹ has made a commendable attempt to demonstrate that the exclusion of death-scrupled jurors does in fact result in an unrepresentative and prosecution-prone jury.

What the appellant fails to recognize, however, is that the jurors challenged in this case were not excluded as in Witherspoon simply because of their general moral aversion to the death penalty, which aversion may or may not have affected their objectivity on the issue of guilt. Rather, they were excused here because of their specific inability to separate their scruples on the matter of punishment from their duty to impartially decide the theoretically unrelated issue of guilt or innocence. In other words, even though the excluded veniremen recognized that the jury does not impose the sentence under Arizona law, they still felt that because of the possibility that the defendant may receive the death penalty, it would affect their vote on the issue of guilt and further their...