State v. Reid
| Citation | 747 P.2d 560,155 Ariz. 399 |
| Decision Date | 17 December 1987 |
| Docket Number | No. CR,CR |
| Parties | STATE of Arizona, Appellee/Cross-Appellant, v. Sandra Diane REID, Appellant/Cross-Appellee. 86-0213-AP. |
| Court | Supreme Court of Arizona |
Robert K. Corbin, Atty. Gen. by William J. Schafer III and Diane M. Ramsey, Asst. Attys. Gen., Phoenix, David S. Ellsworth Yuma Co. Atty. by Philip L. Hall, Deputy Yuma Co. Atty., Yuma, for appellee/cross-appellant State.
John H. Jongeward, Jr., Yuma, for appellant/cross-appellee Reid.
Sandra Reid, defendant, appeals a verdict and judgment of guilt for the crime of first-degree murder. The state cross-appeals. We have jurisdiction pursuant to Ariz. Const. art. 6 § 5(3) and A.R.S. §§ 13-4031, -4032(4) and -4033.
We must answer the following issues:
1. Was the defendant entitled to an instruction on intoxication?
2. Did the trial court err in refusing to give a manslaughter instruction?
3. Was the defendant prejudiced when the trial court proceeded with an eleven person jury?
4. Did the trial court err in giving an instruction on self-defense?
Around 2:00 a.m. on 16 October 1985, Somerton police officers were called to a house trailer owned by Lewis Trimble. Trimble was found in his bed with a fatal gunshot wound to the head. He was holding a hand gun. Defendant, Trimble's daughter, lived in the same trailer with Trimble and her fiance James Warnes, 1 a co-defendant in the case. Warnes' sister, Betty, was also staying at the trailer that night.
Defendant, Warnes, and Betty all told the police that Trimble's death was a suicide. Further investigation revealed that there were two gunshot wounds to Trimble's head, which ruled out suicide. As a result of police interrogation, Betty made a statement inculpating defendant in Trimble's murder. Defendant was indicted for the crimes of first-degree murder, A.R.S. § 13-1105(A)(1), and hindering prosecution, A.R.S. § 13-2512.
At trial, evidence indicated that defendant killed Trimble while he was asleep. Defendant's main defense centered around fear of the victim accentuated by a long history of physical and sexual abuse and violent and psychotic acts by the victim towards the defendant and others. Additionally, defendant also testified that she could detect a change in personality when one of the victim's fits of violence was approaching. This evidence was contradicted by other family members.
Defendant also indicated that at the time of the killing, she was under the influence of drugs and alcohol. Defendant testified that she had been drinking at a local bar and at the victim's trailer. Additionally, throughout the day, defendant had ingested a central nervous system stimulant "Ritalin," and "Parnate," an anti-depressant, in excess of the prescribed dosage. Betty also testified that the defendant had been drinking throughout the day. Defendant, according to her own testimony, however, remembered: (1) every detail of the night she shot her father; (2) feelings of hysteria she felt after shooting the victim; and (3) details of the police arrival and discovery of the body. Defendant also testified that she stayed awake for two and a half hours after her father had gone to bed (and had fallen asleep) before making a search of the victim's bedroom for the gun with which she used to kill him.
After submission of the case to the jury, the foreman reported that one of the jurors was ill and could not continue. The court determined that the juror would not be able to return and, upon stipulation of counsel, allowed the jury to deliberate with eleven jurors. The jury found defendant guilty of first-degree murder. Defendant appeals.
Defendant first claims the trial court erred by not giving defendant's proposed instruction on intoxication which would have allowed the jury to find that defendant lacked the specific intent to commit first-degree murder. We disagree.
The court must give, when requested, an instruction on any theory supported by the evidence. State v. Dean, 129 Ariz. 17, 18, 628 P.2d 54, 55 (App.1981). If, however, the facts of the case do not support the giving of an instruction, it is error to give it. State v. Cruz-Mata, 138 Ariz. 370, 373, 674 P.2d 1368, 1371 (1983).
In this case, the recitation of facts on the night in question by the defendant and trial testimony indicate that defendant's mental condition was not impaired by alcohol or drugs when the critical events occurred such that an intoxication instruction would have been warranted. State v. LaGrand, 152 Ariz. 483, 487, 733 P.2d 1066, 1070 (1987). We find no error.
Defendant claims it was error not to give a manslaughter instruction. Defendant admits that the facts of the case are not those which traditionally support a manslaughter instruction. However, defendant contends that due to the victim's prior violent acts toward the defendant, the defendant's passion was sufficiently aroused to mitigate a first-degree murder charge to manslaughter.
Our statute reads:
§ 13-1103. Manslaughter; classification
A. A person commits manslaughter by:
1. Recklessly causing the death of another person; or
2. Committing second degree murder as defined in § 13-1104, subsection A upon a sudden quarrel or heat of passion resulting from adequate provocation by the victim;
A.R.S. § 13-1103(A)(1) and (2). To be entitled to a manslaughter instruction under subsection A of § 13-1103, defendant should have presented evidence of a reckless killing under A.R.S. § 13-1103(A)(1), or a killing "upon a sudden quarrel or heat of passion resulting from adequate provocation by the victim" as set forth in A.R.S. § 13-1103(A)(2). State v. Reffitt, 145 Ariz. 452, 463, 702 P.2d 681, 692 (1985). We believe that the evidence was insufficient to support a finding that the killing was reckless. The fact that the victim was shot twice while asleep would negate such a finding.
Neither do we believe the killing took place in the heat of passion or that there was adequate provocation by the victim. Whatever might have occurred before the victim retired for the evening is immaterial because the defendant waited two and a half hours before shooting him. The evidence presented no sudden quarrel between the victim and the accused. Neither was there any evidence that the victim provoked the accused. From testimony at trial, evidence was insufficient to indicate that the killing occurred in the heat of passion or immediately after a quarrel. The trial court did not err in refusing the instruction.
After the jury had deliberated for four hours, one of the jurors was taken ill. After several conferences, the following took place:
Defendant claims error in the trial court's decision to proceed with an eleven-person jury after one of the jurors became ill. Defendant relies on Ariz.R.Crim.P. 18.1 which reads:
Trial by Jury
a. By Jury. The number of jurors required to try a case and render a verdict shall be provided by law.
b. Waiver. The defendant may waive his right to trial by jury with consent of the prosecution and the court.
1) Voluntariness. Before accepting a waiver the court shall address the defendant personally, advise him of his right to a jury trial and ascertain that the waiver is knowing, voluntary, and intelligent.
2) Form of Waiver. A waiver of jury trial under this rule shall be made in writing or in open court on the record.
The defendant contends that the waiver of a twelve-person jury must be made in the same manner as waiver of a jury trial. We have held that a waiver of a twelve-person jury for an eight-person jury must be made in the same manner as the waiver of a jury itself. State v. Prince, 142 Ariz. 256, 258, 689 P.2d 515, 517 (1984). As to the waiver of a twelve-person jury for a lesser member jury after trial has commenced, we have stated:
During the course of the trial, one of the original twelve jurors became ill and was unable to sit on the case. This was on a Friday. The juror indicated to the court that he would be able to return Monday to continue the trial.
When asked if he would stipulate to a trial by eleven jurors, defense counsel stated he would have to discuss the matter with the defendant. The defendant told his attorney that he, in fact, agreed to proceed with eleven jurors.
The court, wanting to be certain that the defendant personally assented to this action, asked the defendant in open court if he agreed to this. The court stated that the matter could be continued until Monday if the defendant did not agree. The defendant responded that he did agree.
State v. Lockett, 107 Ariz. 598, 599, 491 P.2d 452, 453 (1971).
The better practice in this case would have been for the judge to address the defendant and ascertain that the defendant personally waived the twelve-person jury for an eleven-person jury. Failure to do so, however, was not fatal under the facts in this case. Consent after deliberations have commenced to receive a verdict concurred in by a lesser number of jurors does not require the same formality as the waiver of a jury itself. This is not the same as a waiver of a jury under Ariz.R.Crim.P. 18.1. Lockett at 600, 491 P.2d at 454.
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