State v. Rodgers
| Decision Date | 19 June 1968 |
| Docket Number | No. 9240--PR,9240--PR |
| Citation | 442 P.2d 840,103 Ariz. 393 |
| Parties | The STATE of Arizona, Appellee, v. Jerome L. RODGERS, Appellant. |
| Court | Arizona Supreme Court |
Darrell F. Smith, Atty. Gen., by Carl Waag, Asst. Atty. Gen., for appellee.
Wesley E. Polley, Bisbee, for appellant.
This case is before us on a petition to review the Court of Appeals' decision, 7 Ariz.App. 29, 435 P.2d 864, affirming a judgment of the Superior Court of Cochise County. The decision of the Court of Appeals is vacated. The judgment of the trial court is reversed and the case is remanded for a new trial.
Defendant, Jerome L. Rodgers, was convicted of assault with a deadly weapon and placed on probation. The facts giving rise to his conviction follow: Rodgers, an enlisted man in the United States Army stationed at Fort Huachuca, Arizona, was on the evening of the alleged crime the driver of a car in which there were three female passengers. While stopped on a street in Sierra Vista, the car was approached by three soldiers, one of whom, Walter Carrigan, was the alleged victim of this assault. As Carrigan walked toward the automobile, Jennifer Jones, one of the women in the back seat, cried out, 'Oh, my God, it's the guy who hit me in the E. M. Club.' When he reached the car Carrigan began a conversation with Jennifer Jones and an altercation developed between them, during which the defendant shot Carrigan in the cheek with a 22-caliber pistol. Defendant then drove off and returned to his quarters at Fort Huachuca.
At the trial the defendant testified that he shot Carrigan to prevent him from badly beating Jennifer Jones, while she testified that Carrigan neither struck her nor bruised her but was trying to pull her from the car.
Although the defendant raises seven assignments of error, as we see it, a determination of the assignment dealing with the instruction on flight disposes of this appeal. We find it unnecessary to discuss the other assignments since the issues raised in these assignments should not occur on the retrial. Defendant contends that the trial court committed reversible error when it gave an instruction on flight. The defendant's contention is based on the proposition that there was no substantial evidence in the record to support an instruction on flight. We agree.
The test for determining whether an instruction on flight is warranted by the evidence was pronounced by this court in State v. Owen, 94 Ariz. 404, 411, 385 P.2d 700, 704, rev'd on other grounds, 378 U.S. 574, 84 S.Ct. 1932, 12 L.Ed.2d 1041, where we said:
'Certainly a mere leaving of the scene of a crime is not a fact sufficient to constitute flight under all circumstances * * * Ordinarily, unless the flight or attempted flight be open, as upon immediate pursuit, the element of concealment or attempted concealment is considered a necessary component.' (Emphasis added.)
See also, State v. Garcia, 102 Ariz. 468, 433 P.2d 18; State v. White, 101 Ariz. 164, 416 P.2d 597; State v. Guerrero, 58 Ariz. 421, 120 P.2d 798.
Indeed, in the very recent case of State v. Garcia, supra, we held that an instruction on flight was warranted by the evidence. There we stated:
'Uncontradicted testimony from the defendant reveals that he Concealed himself out of doors behind a fence all night for a period of nearly twelve hours directly after committing the crime.' 102 Ariz. at 472, 433 P.2d at 22. (Emphasis added.)
However, in this case the record shows that defendant made no attempt either to conceal himself or evade arrest. He left the scene...
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Hoerauf v. State
...added). Courts in other states have drawn a similar distinction between "flight" and "departure?' See e.g., State v. Rodgers, 103 Ariz. 393, 442 P.2d 840, 842 (1968) ("Clearly before an instruction on flight can be given the evidence must disclose more than a mere departure from the scene."......
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...of concealment or attempted concealment." State v. Smith , 113 Ariz. 298, 300, 552 P.2d 1192 (1976) (citing State v. Rodgers , 103 Ariz. 393, 394-95, 442 P.2d 840 (1968) ). Stated differently, in determining whether to give the instruction, a trial court must "be able to reasonably infer fr......
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