State v. Smith, CR-86-0327-AP

• Citation: 160 Ariz. 507,774 P.2d 811
• Decision Date: 11 May 1989
• Docket Number: No. CR-86-0327-AP,CR-86-0327-AP
• Parties: STATE of Arizona, Appellee, v. Edward Neil SMITH, Appellant.
• Court: Supreme Court of Arizona

Page 811

774 P.2d 811

160 Ariz. 507

STATE of Arizona, Appellee, v. Edward Neil SMITH, Appellant.

No. CR-86-0327-AP.

Supreme Court of Arizona, In Banc.

May 11, 1989.

Robert K. Corbin, Atty. Gen. by William J. Schafer III and Diane M. Ramsey, Asst. Attys. Gen., Phoenix, for appellee.

Roberson & Shelley by Robert J. Roberson, Yuma, and J. Douglas McVay, Phoenix, for appellant.

MOELLER, Justice.

JURISDICTION

This is an appeal by Edward Neil Smith (defendant) from a conviction on two counts of first degree murder and one count of escape. Defendant was sentenced to two concurrent life terms for murder to be served consecutively to an eight-year term for escape. This court has jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), A.R.S. §§ 13-4031 and -4033, and Ariz.R.Crim.P. 31, 17 A.R.S.

ISSUES

1. Whether failure to give a "proximate cause" instruction in connection with the felony murder instruction constituted fundamental error.

2. Whether the prosecutor's closing argument concerning felony murder constituted fundamental error.

3. Whether the trial court committed fundamental error by failing to define the word "knowingly" for the jury in connection with the escape charge.

4. Whether defendant was deprived of effective assistance of counsel by his trial counsel's failure to request the instructions referred to in issues 1 and 3 and to fail to object to the argument referred to in issue 2.

5. Whether the trial judge abused his discretion by denying defendant's pre-trial motion for a change of venue.

6. Whether the prosecutor committed fundamental error by expressing his personal opinion concerning the guilt of defendant during final argument.

7. Whether defendant could properly be found guilty of felony murder and not guilty of premeditated murder for the same death.

FACTS

On April 9, 1986, defendant and his twin brother, Donald, one of the murder victims in this case, boarded a Greyhound bus in El Centro, California bound for Yuma. The brothers knew there were outstanding warrants for their arrest in Texas. The previous month Donald and his brother-in-law bought a .38-caliber revolver in Texas, and then picked up defendant in Oklahoma. The three men then travelled to Spokane, Washington. The twin brothers were continuing their flight from law enforcement while on the bus bound for Yuma, where they were to meet Donald's wife at her mother's residence.

Passengers on the bus witnessed the brothers drinking beer and described the two as obnoxious. After one of the brothers left the bathroom on the bus, a passenger found bullets in the bathroom. The passenger notified the bus driver. The driver stopped at the border inspection station and requested the employees there to call ahead to Yuma authorities.

Officer Maas of the Yuma Police Department was dispatched to check into the situation. By the time he arrived at the Yuma bus station the bus was already at the terminal. The Smith brothers were off the bus. Donald was on the phone outside the station; the defendant stood nearby. Officer Maas approached the defendant and asked about a disturbance on the bus. When Officer Maas attempted to frisk defendant, the defendant resisted and the officer put defendant on the ground. In the ensuing struggle, however, the tables were turned and the defendant managed to place Officer Maas on the ground.

Some witnesses testified that defendant then began shooting Officer Maas. Other witnesses testified that defendant's brother, Donald, approached Officer Maas and began firing rounds into him. In any event, Officer Maas was able to return Donald's fire and shot him several times, killing him. Officer Maas died shortly thereafter from his wounds. Defendant fled the scene and was captured a week later in Oklahoma.

Defendant was returned to Yuma for trial on an indictment, which charged him with three counts: the first degree murder of Officer Maas; the first degree murder of his brother, Donald Smith; and escape in the first degree. The jury was instructed on both premeditated and felony murder for the killing of Officer Maas, and on felony murder only for the killing of Donald Smith. The jury returned a verdict finding defendant guilty of the escape count and both felony murder counts and not guilty of the premeditated murder of Officer Maas. He appeals; we affirm.

DISCUSSION

1. Felony Murder Instruction

Our felony murder statute, A.R.S. § 13-1105, provides in part:

A. A person commits first degree murder if:

. . . . .

2. Acting either alone or with one or more other persons such a person commits or attempts to commit ... escape under §§ 13-2503 or 13-2504 ... and in the course of and in furtherance of such offense or immediate flight from such offense, such person or another person causes the death of any person.

Without objection, the trial court gave a standard instruction on felony murder, RAJI No. 11.052, as follows:

The crime of first degree felony murder requires proof of the following two things:

1. The defendant committed or attempted to commit escape in the first degree; and

2. In the course of and in furtherance of the crime or immediate flight from the crime, the defendant or another person caused the death of any person.

Reporter's Transcript of 7/30/86, at 1032-33. The trial court separately instructed the jury on the elements of the crime of escape.

On appeal, defendant contends the trial court erred by failing also to instruct the jury that a proximate, causal relationship has to exist between the defendant's conduct and the deaths charged in the indictment. Although defendant's trial counsel did not request such an instruction, his appellate counsel contends that the failure of the trial court to give such an instruction, sua sponte, was fundamental error depriving defendant of a fair trial.

Absent fundamental error, an objection to an error or omission in jury instructions must be raised at trial to preserve the issue on appeal. State v. Axley, 132 Ariz. 383, 392-93, 646 P.2d 268, 277-78 (1982). We have defined fundamental error in the context of jury instructions as "such error as goes to the foundation of the case, or which takes from the defendant a right essential to his defense." State v. Thomas, 133 Ariz. 533, 539, 652 P.2d 1380, 1386 (1982) (citing State v. Evans, 109 Ariz. 491, 493, 512 P.2d 1225, 1227 (1973)).

Defendant contends that his personal conduct did not cause the deaths of his brother and Officer Maas; therefore, defendant argues, the lack of a proximate cause instruction deprived him of a viable defense and constituted fundamental error. Defendant relies upon State v. Wiley, 144 Ariz. 525, 698 P.2d 1244 (1985), overruled on other grounds, State v. Superior Court, 157 Ariz. 541, 760 P.2d 541 (1988), and State v. Lawson, 144 Ariz. 547, 698 P.2d 1266 (1985), for his assertion that a felony murder charge requires a proximate cause instruction.

Wiley and Lawson were tried together for felony murder. They beat and robbed their victim and left him bound, hand and foot, in his home. Some hours later, a passerby noticed smoke coming out of one of the windows of the victim's home. The victim, still bound, died from smoke inhalation. A small lamp, placed underneath a mattress on the victim's bed, had started the fire. The trial court gave the standard felony murder instruction followed by these instructions:

In order to find the defendants guilty of first degree murder, you must find that the death was proximately caused by the acts of the defendants.

The proximate cause of a death is a cause which, in natural and continuous sequence, produces the death, and without which the death would not have occurred.

Proximate cause does not exist if the chain of natural effects and cause either does not exist or is broken by intervening events which were unforeseeable by the defendants.

Conduct is the cause of a result when both of the following exist:

(1) But for the conduct, the result in question would not have occurred.

(2) The relationship between the conduct and results satisfies any additional causal requirement imposed by the statute defining the offense.

Wiley, 144 Ariz. at 539-40, 698 P.2d at 1258-59.

The defendants in Wiley and Lawson argued that the fire was a "coincidence" or an "intervening cause" and requested the following additional instruction:

A coincidence exists when the defendant merely puts the victim at a certain place at a certain time and because the victim was so located it was possible for him to be acted upon by the intervening cause. When a coincidence exists as an intervening cause, and the coincidence was unforeseeable by the defendants then there is no proximate cause and the defendants must be found not guilty of homicide.

Id.

In discussing the instructions, the Wiley- Lawson prosecutor advised the judge that he would not argue that the binding of the victim itself was the proximate cause of his death; in fact, the prosecutor argued that, to convict, the jury would have to find that the defendants placed or left the lamp that caused the fire.

On appeal, Wiley and Lawson argued that the instructions were "ambiguous, conflicting and incomplete" without the addition of defendants' requested instruction on "coincidence" and "intervening cause." We rejected that argument and found nothing improper about the instructions as given. In doing so, we did not purport to hold that a definition of proximate cause must be given in every felony murder case.

In the case at bar, by convicting defendant of escape and felony murder, the jury clearly found that defendant committed the crime of escape and that the deaths occurred in furtherance of the escape. As the defendant himself concedes (Appellant's Opening Brief, p. 9), his "only defense was that he was surprised by his brother's actions and fled the scene to avoid being shot." At trial, there was no issue of causation; the issue that was tried and resolved against defendant was whether he...