State v. Rodgers, 2
| Decision Date | 28 December 1967 |
| Docket Number | CA-CR,No. 2,2 |
| Parties | The STATE of Arizona, Appellee, v. Jerome L. RODGERS, Appellant. 96. |
| Court | Arizona Court of Appeals |
Darrell F. Smith, Atty. Gen., Carl Waag, Asst. Atty. Gen., for appellee.
Wesley E. Polley, Bisbee, for appellant.
This is an appeal from a judgment of guilt and order for probation as to a charge of assault with a deadly weapon.
The defendant was an enlisted man in the United States Army, stationed at Fort Huachuca, Arizona, and, on the evening in question, was the driver of a car in which there were three female passengers, two of whom were members of the Women's Army Corps. The owner of the car, known by the defendant only as 'Joan,' rode in the front seat as a passenger. The car, while stopped on a street in the City of Sierra Vista, was approached by three male enlisted members of the United States Army. One of these three was the alleged victim of this assault whose name is Walter Carrigan.
As Carrigan approached the vehicle, one of the female passengers in the back seat of the car, Jennifer Jones, exclaimed 'Oh, my God, it's the guy who hit me in the E. M. Club.' After reaching the car, Carrigan began talking to Jennifer Jones and some kind of an altercation between them developed, during which the defendant shot Carrigan in the check with a 22-caliber pistol. As Carrigan fell back from the shot, the defendant immediately drove off, and went to the quarters which were provided to him by the United States Army, where he was arrested approximately two hours after the shooting.
The defendant testified he shot Carrigan to stop him from badly beating Jennifer Jones. Jennifer Jones, however, testified Carrigan neither struck her nor bruised her on the occasion in question, but that he was trying to pull her from the vehicle when the defendant shot him.
The defendant first complains the prosecution attempted to brand him as a 'bad guy' by implying he, a married man, was out with three women other than his wife on the occasion in question. The only evidence admitted over objection in this regard were answers to questions propounded to the defendant by the prosecution as to where his wife was on the evening in question (his answer was she was in the process of moving to Fort Huachuca), and as to whether Jennifer Jones was married (the defendant answered he didn't know whether she was or not).
The principal defense postulated for this shooting is that the defendant was seeking to defend Jennifer Jones from serious bodily harm. The nature of this charge and this defense brought into issue the state of mind of the accused. It is our view the evidence as to the whereabouts of the defendant's wife and as to the marital status of Jennifer Jones had relevancy as to what may have been in the defendant's mind as he was shooting Carrigan. Proof of state of mind is usually by circumstantial evidence and the nature of the relationship between the defendant and the person whom he contended he was defending would be a circumstance bearing upon this critical issue. For instance, it is somewhat more unlikely that the defendant was shooting another man in the face to defend a woman he hardly knew, as opposed to a situation in which he might have been seeking to defend a wife or paramour. We hold the questions complained of only elicited information necessary to 'complete the story' with which the court and jury were concerned. Cf. State v. Hardin, 99 Ariz. 56, 406 P.2d 406 (1965); State v. Norgard, 6 Ariz.App. 36, 429 P.2d 670 (1967).
The defendant also complains of the propounding of a question to three defense character witnesses. These witnesses had testified on direct examination that the defendant did not have the reputation of being a turbulent man, but rather as a 'good man.' On cross-examination, they were asked if they knew that on the occasion in question he was 'out with three women other than his wife.' The first time it was asked, it was answered in the negative without objection. As to the other two witnesses, the defense objected, the objection was sustained, and the jury was instructed to disregard any implications arising from the question. We hold whatever error was committed by the asking of the question was cured by the admonition of the court.
The defendant complains of the following instruction, given by the trial court:
This instruction was patterned after a California jury instruction. 1 Such an instruction is required by statute in California when there is evidence of flight. 2 The defendant attacks the giving of the subject instruction on the basis that it is not supported by the evidence and is a violation of the constitutional provision that judges shall not comment upon the evidence (Ariz. Const. art. 6, § 27, A.R.S.).
In considering the defendant's objections, it is pertinent to note that in this state we do not have the California statute requiring the giving of a 'flight' instruction nor does California have a constitutional provision similar to our article 6, section 27, prohibiting comment on the evidence. 3 Hence, California cannot provide controlling authority for the problem at hand.
Generally, it is not proper when giving instructions to the jury to single out particular evidence and instruct the jury as to what inferences may be drawn from such evidence. 53 Am.Jur. Trial § 597, at 472; 88 C.J.S. Trial § 277, at 747--749. In the same jurisdictions recognizing this general principle, however, there are many decisions upholding the right of the trial court to give an instruction on flight, i.e., compare Armijo v. People, 134 Colo. 344, 304 P.2d 633 (1956), with Trujillo v. People, 151 Colo. 373, 377 P.2d 948 (1963); People v. Laczny, 63 Ill.App.2d 324, 211 N.E.2d 438 (1965), with People v. Spaulding, 309 Ill. 292, 141 N.E. 196 (1923); State v. Hill, 239 Iowa 675, 32 N.W.2d 398 (1948), with State v. Barton, 258 Iowa 924, 140 N.W.2d 886 (Iowa 1966); People v. Smith, 363 Mich. 157, 108 N.W.2d 751 (1961), with People v. Jones, 1 Mich.App. 633, 137 N.W.2d 748 (1965); State v. King, 334 S.W.2d 34 (Mo.1960), with State v. Aubuchon, 394 S.W.2d 327 (Mo.1965); State v. Petrolia, 45 N.J.Super. 230, 132 A.2d 311 (1957), with State v. Evans, 107 N.J.L. 474, 153 A. 579 (1931); Wingfield v. State, 89 Okl.Cr. 45, 205 P.2d 320 (1949), with Denney v. State, 348 P.2d 359 (Okl.Cr.App.1959); State v. Duggan, 215 Or. 151, 333 P.2d 907 (1958), with State v. Rand, 166 Or. 396, 111 P.2d 82, 112 P.2d 1034 (1941); State v. La Porte, 58 Wash.2d 816, 365 P.2d 24 (1961), with State v. Frandsen, 176 Wash. 558, 30 P.2d 371 (1934); State v. Pietranton, 140 W.Va. 444, 84 S.E.2d 774 (1954), with State v. Wright, 130 W.Va. 336, 43 S.E.2d 295 (1947).
Giving a special instruction on flight appears to be an exception to the general proscription against informing the jury as to inferences that may be drawn from particular pieces of evidence. See 34 N.C.L.Rev. 367, 373 (1956). In our own state, though generally the singling out of evidence so as to give it undue prominence is prohibited, State v. Eisenstein, 72 Ariz. 320, 331, 235 P.2d 1011 (1951), the courts have nevertheless endorsed the giving of a flight instruction when there is evidence of flight immediately following the commission of a crime. State v. McLain, 74 Ariz. 132, 245 P.2d 278 (1952); Nevarez v. State, 22 Ariz. 237, 196 P. 449 (1921). In State v. Owen, 94 Ariz. 404, 385 P.2d 700 (1963), rev'd on other grounds, 378 U.S. 574, 84 S.Ct. 1932, 12 L.Ed.2d 1041 (1964), the Supreme Court of our state in a three-two opinion upheld the giving of a flight instruction and indicated, inter alia, that even if the instruction were not proper, it was not reversible error.
State v. McGill, 101 Ariz. 320, 419 P.2d 499 (1966), holds that when there is no evidence of flight, it is error to give the instruction. There is nothing in McGill to indicate that if there is evidence of flight in the record, the giving of the instruction would be error. A decision of this court, State v. Douglas, 2 Ariz.App. 178, 407 P.2d 117 (1965), upholds the giving of a flight instruction even though the defendant '* * * went only a short distance and was not trying to conceal himself from arrest * * *.' 2 Ariz.App. at 180, 407 P.2d at 119. See also Hamby v. State, 71 Ga.App. 817, 32 S.E.2d 546 (1944).
In this case, the defendant gave an explanation of his abrupt departure in these words:
'A. Well, I noticed the two gentlemen that was with him. They both put their hands in their pocket. They were bulged. Their pockets were bulged. And I fired, and I left the area.
In Nevarez v. State, supra, our Supreme Court, in dicta, indicated that if a reasonable explanation of flight is given by the defendant, such explanation should also have been called to the jury's attention in the instruction on flight. 4
Were it not for the pronouncements of our own Supreme Court approving the flight instruction, this court would be inclined to agree with the following statement of the Colorado Supreme Court:
To continue reading
Request your trial
-
State v. Kelly
...and the materials were immediately removed from the jury room; therefore, defendant suffered no prejudice); State v. Rodgers, 7 Ariz.App. 29, 435 P.2d 864 (1967), vacated on other grounds, 103 Ariz. 393, 442 P.2d 840 (1968) (affirming trial court where although the juror committed misconduc......
-
State v. Pierre
...to a mere trifle. The motive for theft would have to be a substantial part of the reason for the killing . . ."30 State v. Rodgers, 7 Ariz.App. 29, 435 P.2d 864 (1967); State v. Twitchell, 61 Wash.2d 403, 378 P.2d 444 (1963).1 Sol Block & Griff v. Schwartz, 27 Utah 387, 405, 76 P. 22 (1904)......
-
State v. Chambers
...fundamental reasons. First, even with knowledge of the approval the defendant failed to object to the omission. In State v. Rodgers, 7 Ariz.App. 29, 435 P.2d 864 (1967), the defendant failed to object to an instruction which informed the jury of the legal effect of the defendant's flight af......
-
State v. Baty
...... 2. Because pistols are so lethal, a court, as a matter of law, may declare them to be obviously and imminently dangerous to life. ... Bell v. State, 501 S.W.2d 137, 138(3) (Tex.Cr.App.1973); Walker v. State, 440 S.W.2d 653, 657(4) (Tex.Cr.App.1969); State v. Rodgers, 7 Ariz.App. 29, 435 P.2d 864, 869(11) (1967); State v. Powell, 238 N.C. 527, 78 S.E.2d 248, 251(6) (1953); Skidmore v. Commonwealth, 311 Ky. 176, ......