State v. Schroeder, 1284

• Decision Date: 13 February 1964
• Docket Number: No. 1284,1284
• Citation: 95 Ariz. 255,389 P.2d 255
• Parties: STATE of Arizona, Appellee, v. John Wesley SCHROEDER, Appellant.
• Court: Arizona Supreme Court

Page 255

389 P.2d 255

95 Ariz. 255

STATE of Arizona, Appellee, v. John Wesley SCHROEDER, Appellant.

No. 1284.

Supreme Court of Arizona, In Banc.

Feb. 13, 1964.

Rehearing Denied March 24, 1964.

Robert W. Pickrell, Atty. Gen., and Philip M. Haggerty, Atty. Atty. Gen., for appellee.

Peterson, Estrada & Matz, by Gerald A. Machmer, Phoenix, for appellant.

UDALL, Chief Justice.

This appeal is from a conviction of firstdegree murder in the Superior Court of Maricopa County. The evidence shows that on July 14, 1960, the defendant, in company with three friends, Piersall, Hill and Mooney, drove to the home of Lloyde Anderson, the deceased, in Scottsdale. The avowed purpose of their visit was to collect a debt owing form Anderson to Piersall for a television set. It is not clear whether defendant was armed and there is some direct testimony to the effect that he was not. At least one of his companions, however, carried a pistol.

This party arrived at the Anderson home at approximately one-thirty P.M. Some discussion then took place between Anderson and Piersall in one of the bedrooms. One James W. Evans and his brother Jimmy Reed Evans who were neighbors and friends of the Anderson family also took part in the conversation, but it does not appear that Hill, Mooney or Schroeder participated or that they were even in the bedroom at the time. A few minutes later Anderson received a telephone call from his wife whose car had stalled nearby. He and the Evans brothers left the house to go to her assistance while defendant and his companious stayed behind.

While he was gone Anderson called the Scottsdale police. Officers Young and Reed were dispatched to the scene and arrived at the house just as Anderson and the Evans brothers returned. They all entered the house but found it apparently empty. According to Mooney's testimony, when the men inside had seen the police arrive, they hid themselves in a closet. Evans and the police then walked out into the yard and commenced a search of the surrounding premises. At this point, defendant burst out of his hiding place with a gun in his hand, berating Anderson for 'calling the cops' and, according to some of the witnesses, threatening to kill him. He seized Anderson around the neck with his left arm and holding a gun in his back and using his body as a shield, marched out the front door. He ordered Young and Reed to 'get back' and threatened again to 'shoot this man in the back.'

Officer Young was standing immediately outside the front door and, as the defendant emerged with his hostage, drew his gun and struck him a solid blow on the head. Young struck a second blow, a glancing one, and defendant immediately fired point blank at Anderson's back. As Anderson slumped to the ground, the defendant quickly turned and shot Young through the body. He was immediately thereafter struck by a fusillade of bullets fired by both officers.

As a result of the single bullet wound in his back, Lloyde Anderson died within a few hours after the shooting. Defendant was charged with his murder, brought to trial and convicted. A.R.S. § 13-453 requires that the jury decide the penalty for murder of the first degree and the death sentence was accordingly fixed in this case.

At the outset, the State questions our jurisdiction because the statutory time limit had expired before the notice of appeal was filed. This same issue was previously decided on January 22, 1963 when we denied a motion to dismiss the appeal on that ground. The question is so fundamental, however, that it merits reconsideration and elaboration in a formal opinion.

The notice of appeal was filed August 1, 1962, two days after the deadline established by Rule of Criminal Procedure 348, 17 A.R.S. Within a few weeks the State Bar commenced disciplinary proceedings against defendant's trial counsel for alleged misconduct in connection with other matters. In the Matter of a Member of the State Bar of Arizona, 95 Ariz. 268, 389 P.2d 263. Said proceedings are a matter of record in this court and a proper subject of judicial notice. MacRae v. MacRae, 57 Ariz. 157, 112 P.2d 213 (1941). It appears, according to the Administrative Committee findings, that defense counsel, during the sixty-day statutory period for filing appeals, was conducting his practice with considerably less than that degree of meticulous attention required of one who occupies a fiduciary relationship with his client and the court. He was apparently suffering from alcoholism and, in the other matters he was handling, had failed to make certain motions, appearances, or take other routine actions, and several times misinformed clients on the status of their affairs. Presumably, it was this development that prompted the appointment of different counsel to brief and argue the present case in this court.

From the entire record and transcript, the defense presented at trial appears fully adequate. We think, however, the situation during the sixty-day preiod following judgment must be considered analogous to those involving death or incapacity of attorneys. Under such circumstances, dismissal for slight delay in filing criminal appeals seems inconsonant with sound policy and fundamental justice. Cf., Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

As his first assignment of error, defendant urges the failure of the court to instruct the jury on the lesser included offenses of second-degree murder and manslaughter. He argues that there was evidence from which the jury could find that he committed the homicide without malice aforethought, a sina qua non of murder in any degree, A.R.S. § 13-451, or without premeditation and deliberation, requisite for murder of the first degree. A.R.S. § 13-452. In support of this proposition he points to the undisputed testimony that he was struck a staggering blow to the head immediately before he fired the fatal shot. From this fact alone, he contends, the jury could infer that the shot was not intentionally fired. He also relies upon Mooney's testimony to the effect that the gun 'went off' when defendant was struck.

Under our holdings, instructions on lesser offenses are justified only when there is evidence upon which the jury could convict of a lesser offense and, at the same time, find that that state had failed to prove an element of the greater crime. Application of Williams, 85 Ariz. 109, 333 P.2d 280 (1958); Antone v. State, 49 Ariz. 168, 65 P.2d 646 (1937). In other words, the state of the record must not be such that defendant can only be guilty of the crime charged or not guilty at all. When the sole defense to a charge of murder is an alibi, for example, or a plea of insanity, no instruction on included crimes is necessary. For in these cases, if the jury accepts defendant's version of the killing, they must acquit; if not, and the state's proof is otherwise sufficient, the only alternative is conviction of the offense charged. See State v. Fouts, 79 Ohio App. 255, 72 N.E.2d 286, cert. denied, 331 U.S. 853, 67 S.Ct. 1738, 91 L.Ed. 1861 (1947) (alibi); Braunie v. State, 105 Neb. 355, 180 N.W. 567, 12 A.L.R. 658 (1920) (insanity).

There remains the possibility, of course, that the jury might simply disbelieve the state's evidence on one element of the crime. If so, it is argued, conviction of a lesser offense is still possible. This reasoning, however, would require instructions on all offenses theoretically included in every criminal information. The law does not require or even permit such a procedure. State v. Hicks, 241 N.C. 156, 84 S.E.2d 545 (1954). See also, State v. Patterson, 172 Ohio St. 319, 175 N.E.2d 741 (1961). In the case at bar, however, defendant urges that the state's own evidence was in conflict on the issues of malice and premeditation and affirmatively raised the possibility that the shooting was accidental. We cannot accept this contention.

Manslaughter was clearly not involved. A.R.S. § 13-456 provides:

'Manslaughter is of two kinds:

'1. Voluntary, upon a sudden quarrel or heat of passion.

'2. Involuntary, in the commission of an unlawful act not amounting to a felony, or in the commission of a lawful act which might produce death in an unlawful manner, or without due caution and circumspection.'

There is nothing in the record which suggests that this killing was done 'upon a sudden quarrel or heat of passion.' And while defendant's unlawful actions at the time of the shooting would not support a charge of felony murder under A.R.S. § 13-452, they nonetheless amounted to felonious conduct, viz., kidnapping under A.R.S. § 13-491, and obstructing justice under A.R.S. § 13-541.

Nor do we think there was evidence from which the jury could have convicted of murder in the second degree. That offense is committed by the unlawful killing of a human being with malice aforethought, A.R.S. § 13-451, but without deliberation and premeditation. A.R.S. § 13-452. 'Deli...