State v. Tims, 6272
Decision Date | 03 January 1985 |
Docket Number | No. 6272,6272 |
Citation | 143 Ariz. 196,693 P.2d 333 |
Parties | STATE of Arizona, Appellee, v. Gary Wayne TIMS, Appellant. |
Court | Arizona Supreme Court |
Robert K. Corbin, William J. Schafer, III, Chief Counsel, Crim. Div., R. Wayne Ford, Asst. Atty. Gen., Phoenix, for appellee.
C. Robert Pursley, Safford, for appellant.
On February 10, 1984 an information was filed charging defendant with one count of dangerous or deadly assault by a prisoner, A.R.S. § 13-1206, and one count of aggravated assault, A.R.S. § 13-1204, with an allegation of five prior felonies. Defendant, an inmate at the Fort Grant Training Center, allegedly beat a sleeping prisoner with a pipe. Prior to trial the state moved for and was granted a dismissal of the aggravated assault charge. After a jury trial, defendant was found guilty of dangerous or deadly assault by a prisoner. The court sentenced defendant to life imprisonment to be served consecutive to the sentence defendant was serving at the time of the assault. 1
Defendant raises three issues on appeal:
(1) Whether the trial court abused its discretion in limiting defense counsel's voir dire of the jury;
(2) Whether the trial court erred in not giving an instruction on aggravated assault, and
(3) Whether the prosecutor committed prosecutorial misconduct in his closing argument.
Because we find no merit in any of these three issues, we affirm the judgment of conviction.
Defendant first contends that the trial court erred in refusing to allow defense counsel to voir dire the jury regarding the life imprisonment sentence associated with the crime charged, namely A.R.S. § 13-1206 deadly or dangerous assault by a prisoner. Prior to the voir dire, defense counsel requested that the court allow him to advise the jury of the mandatory life imprisonment sentence associated with the charge.
We first note that the scope of voir dire is left to the sound discretion of the trial court. State v. McDaniel, 136 Ariz. 188, 665 P.2d 70 (1983); State v. Baumann, 125 Ariz. 404, 610 P.2d 38 (1980). The trial court's limitation of the voir dire examination will not be adjudged error on appeal absent clear abuse of that discretion. State v. McMurtrey, 136 Ariz. 93, 664 P.2d 637, cert. denied, 464 U.S. 858, 104 S.Ct. 180, 78 L.Ed.2d 161 (1983); State v. Smith, 114 Ariz. 415, 561 P.2d 739 (1977).
In Arizona, the trial judge performs the sentencing function, not the jury. The jury, as the trier of fact, considers the evidence presented during the trial, deliberates thereon and determines the factual issues raised by the case. In reaching its verdict the jury should not be concerned with the possible sentences that the trial judge could impose, and such matters should not affect its deliberations and determination of guilt or innocence. See State v. Burnetts, 80 Ariz. 208, 295 P.2d 377 (1956); United States v. Davidson, 367 F.2d 60 (6th Cir.1966). This court, in State v. Koch, 138 Ariz. 99, 673 P.2d 297 (1983), has already determined that jury instructions should not state the potential punishment that may result from the jury's verdict:
2
138 Ariz. at 105, 637 P.2d at 303. In State v. Corrales, 138 Ariz. 583, 676 P.2d 615 (1984) the trial court during the process of selecting the jury advised the jury panel that the death penalty was not applicable in that case. A murder conviction under A.R.S. § 13-1105 mandates a penalty of life imprisonment without the possibility of parole for 25 years. 3 The Supreme Court citing Koch stated that "because punishment is no longer a jury question in first degree murder cases, such instructions should no longer be given." State v. Corrales, 138 Ariz. at 596, 676 P.2d at 628. Accordingly, it would have been improper for the trial judge to allow defense counsel to inform the jury on the mandatory punishment under A.R.S. § 13-1206 to consider along with the evidence presented at trial in determining guilt.
We thus find that defendant was not denied a fair trial by the trial court's refusal to allow defense counsel to advise the jury of the mandatory life imprisonment sentence; there was no abuse of discretion.
Second, defendant contends that the trial court erred in not giving an instruction and verdict form for aggravated assault as a lesser included offense of the crime of dangerous or deadly assault by a prisoner.
In all cases involving lesser included offenses, the greater offense contains each element of the lesser offense plus one or more elements not found in the lesser. State v. Wise, 137 Ariz. 468, 671 P.2d 909 (1983). The elements of A.R.S. § 13-1206, dangerous or deadly assault by a prisoner as they pertain to this case are: (1) a person in the custody of the Department of Corrections, (2) commission of an assault, and (3) use of a deadly or dangerous instrument, or infliction of serious physical injuries. The elements of aggravated assault, A.R.S. § 13-1204 are: (1) commission of an assault, and (2) use of a deadly or dangerous instrument, or infliction of serious physical injury. The extra element distinguishing the lesser included offense from the greater is the custody status of the defendant.
Where this extra element is not in dispute or there was no evidence presented during the trial contesting it, however, defendant is not entitled to the lesser included instruction. State v. Caldera, 141 Ariz. 634, 688 P.2d 642 (1984) ( ); State v. Yarbrough, 131 Ariz. 70, 638 P.2d 737 (App.1981) ( ). That is, where defendant could be guilty of the crime charged (the greater offense) or not at all, an instruction on the lesser offense is not justified. State v. Hatten, 106 Ariz. 239, 474 P.2d 830 (1970); State v. Toney, 113 Ariz. 404, 555 P.2d 650 (1976).
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