State v. Rankovich, 6721
| Decision Date | 04 October 1988 |
| Docket Number | No. 6721,CR-85-0295-AP,6721 |
| Citation | 159 Ariz. 116,765 P.2d 518 |
| Parties | STATE of Arizona, Appellee, v. George Harry RANKOVICH, Appellant. (). |
| Court | Arizona Supreme Court |
Robert K. Corbin, Atty. Gen. by William J. Schafer III, Janet Keating, Asst. Attys. Gen., Phoenix, for appellee.
Law Offices of O. Joseph Chornenky by O. Joseph Chornenky, Phoenix, for appellant.
A jury convicted appellant, George Harry Rankovich, of one count of first-degree murder. In view of the stipulation by the State prior to trial that the death penalty was not appropriate, the trial court sentenced Rankovich to life imprisonment without the possibility of release for 25 years, pursuant to A.R.S. § 13-703. Rankovich challenges his conviction on the following grounds:
(1) The trial court erred in not excluding evidence regarding appellant's race, religion, and national origin;
(2) The prosecutor's misconduct warrants the granting of a new trial;
(3) The trial court erred in refusing to give a jury instruction regarding intoxication; and
(4) Appellant was denied effective assistance of counsel.
We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. §§ 13-4031, -4033, and -4035.
During the evening hours of May 12, 1985, the victim, Bruce Walter, and a friend bought a pitcher of beer at the Crazy Horse Lounge in Mesa, Arizona. While Walter was away, his friend drank the beer and then left the bar. When he realized that his friend had left, Walter struck up a conversation with the bartender.
At approximately the same time, George Harry Rankovich was asked to leave the Big Brown Jug a half a block from the Crazy Horse Lounge. Rankovich had asked the owner of the Big Brown Jug for a drink, but the owner refused because Rankovich was intoxicated. The owner did, however, honor Rankovich's request for a glass of water. When Rankovich spilled the water, though, the owner asked him to leave the bar.
After leaving the Big Brown Jug, Rankovich drove to the Crazy Horse Lounge. Rankovich asked the bartender for a drink, but the bartender refused because she believed that Rankovich was intoxicated. Rankovich next asked for a glass of water, but the bartender also refused this request. The bartender then walked to a phone to call for the police. When Rankovich realized that the bartender was calling the police, he drew a pistol and pointed it at the bartender stating that he would kill her if she called the police. Remaining on the phone, the bartender moved behind a wall to shield herself from Rankovich. While on the phone with police, the bartender heard wrestling and chairs falling, and, eventually, three shots being fired.
In another part of the bar, Andrew Skogman and Mike Milusnik were playing pool. They also heard fighting in the front of the bar and went to investigate. They saw Walter and Rankovich on the floor, with Walter repeatedly punching Rankovich in the face. Skogman tapped Walter on the back and told him to either break the fight up or take it outside. The combatants then stopped fighting, and Skogman helped both Walter and Rankovich to their feet.
Milusnik noticed that Walter's nose was broken badly and asked what happened. 1 Walter said Rankovich had broken his nose with a gun. Milusnik replied, "[g]un, what gun." Rankovich then pulled a gun from behind his right hip and, with a smirk on his face, shot at Walter three times. Skogman testified that there was a discernible pause between the first shot and the second and third shots. The medical examiner testified that Walter died from gunshot wounds to his back.
A patron who had left the bar when Rankovich pointed his pistol at the bartender saw Rankovich run out of the bar, get into a van, and drive away. The patron noted Rankovich's license plate, and he gave the number to police when they arrived on the scene.
Mesa Police Officer Allen Robert Moore spotted and followed the van until it stopped at a residence. After a time, Rankovich got out of the van and entered the house. After securing the area outside the house, Mesa police officers called Rankovich and asked him to come outside. Approximately 15 minutes later, Rankovich emerged from the residence and was taken into custody.
A short time after Rankovich was taken into custody and transported to the Mesa police station, officers secured a search warrant for Rankovich's residence and van. Officers seized a Smith & Wesson revolver from the van, which matched a holster Rankovich lost during the struggle at the Crazy Horse Lounge. In the cylinder of the revolver, police found three live bullets and three spent casings.
After advising Rankovich of his Miranda rights, Mesa detectives asked Rankovich if he would answer their questions. Rankovich agreed to answer questions. During the course of the interview, Rankovich told detectives that he was a Russian Jew and that he had seen an enemy that night from the Old Country. He indicated, however, that he was afraid that he shot the wrong man. Rankovich also explained that he was talking to the owner of the bar when someone pushed him off his bar stool. Rankovich claimed that he fired the gun in self-defense while he was still lying on the floor.
During trial, Rankovich again justified his actions by claiming self-defense. Nevertheless, the jury found Rankovich guilty of first-degree murder. The trial court sentenced Rankovich to life imprisonment. This appeal followed.
Rankovich argues that the trial court erred in permitting the prosecutor to make remarks reasonably calculated to evoke or appeal to racial, national, or religious prejudice in the jury. Rankovich complains of three specific incidents. First, the jury heard testimony concerning a nickname given to Rankovich. Second, the jury heard testimony concerning statements Rankovich made regarding East Germany, Russia, and the United States. Finally, the jury heard testimony relating to Rankovich's ethnic and religious background. We address each of these incidents separately.
A. Rankovich's Nickname
During the testimony of the owner of the Big Brown Jug, James D. Harrison, the following exchange occurred:
Q. [By defense counsel] Does Mr. Rankovich have an accent?
Q. What type of accent does he have?
A. Well, we had a nickname for George. The nickname that they use around the bar--I guess I put the name on him, George the Russian.
Rankovich now asserts that this exchange was designed to appeal to the prejudices of the jury. We note, however, that the above quoted colloquy took place during cross-examination by Rankovich's trial counsel. When a defendant, rather than the State, introduces evidence of his national origin, there is simply no reversible error. Cf. United States v. McCall, 291 F.2d 859, 860 (2nd Cir.1961) ().
During both his arrest and his post-Miranda interview with Mesa Police detectives, Rankovich made statements indicating a fondness for Eastern Bloc nations and a dislike for the United States. The State elicited this evidence from Mesa Police officers. During the direct examination of Officer Moore, the following exchange occurred:
Q. [By the State] When Mr. Rankovich came out of the residence, did he say anything?
A. He was mumbling. It was hard to understand him. He was slurring his speech but he was saying things like, you should be glad you're not in Russia. You are taking my freedom away.
After establishing that Officer Moore was in a position to hear Rankovich's statements during his arrest, the State once again asked what Rankovich had said. Rankovich objected, this time on the grounds of relevance. The court overruled the objection, and Officer Moore testified that Rankovich said, During the direct examination of Officer Wayne Paul Baker, the following transpired:
Q. [By the State] So--okay, so what did Mr. Rankovich do then?
A. At this point Mr. Rankovich became somewhat agitated. He said he was unhappy with Americans in our country and again requested to be placed on an airplane and returned to East Germany.
I asked Mr. Rankovich about his request to be sent back to East Germany, possibly back to Russia and asked him how he felt about the fact that if he were sent back he wouldn't be able to carry his firearms, and Mr. Rankovich replied that He then shrugged his shoulder and said, "They give me a machine gun...."
Rankovich asserts that the above quoted exchanges demonstrate that the prosecuting attorney elicited statements calculated to evoke ethnic prejudice against Rankovich, and that these statements actually prejudiced the jury and deprived Rankovich of his right to a fair and impartial trial.
It is generally improper to elicit evidence concerning one's ethnicity. See generally Annotation, Counsel's Appeal In Criminal Case to Racial, National, or Religious Prejudice as Ground for...
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