State v. Tittle

• Decision Date: 04 December 1985
• Docket Number: No. 6313,6313
• Citation: 710 P.2d 449,147 Ariz. 339
• Parties: STATE of Arizona, Appellee/Cross-Appellant, v. Thomas Boyd TITTLE, Appellant/Cross-Appellee.
• Court: Arizona Supreme Court

Page 449

710 P.2d 449

147 Ariz. 339

STATE of Arizona, Appellee/Cross-Appellant, v. Thomas Boyd TITTLE, Appellant/Cross-Appellee.

No. 6313.

Supreme Court of Arizona, In Banc.

Dec. 4, 1985.

Robert K. Corbin, Atty. Gen., William J. Schafer III, Chief Counsel, Crim. Div., Gary Fadell, Asst. Atty. Gen., Phoenix, for appellee/cross-appellant.

J. Douglas McVay, Phoenix, for appellant/cross-appellee.

GORDON, Vice Chief Justice.

A jury convicted defendant, Thomas Boyd Tittle, of first degree murder, A.R.S. § 13-1105, and armed robbery, A.R.S. § 13-1904. The trial court sentenced him to death for the murder and to a consecutive 21-year term for the armed robbery conviction.

On September 2, 1982, the body of a black male was found in the desert north of Phoenix. Sheriff's detectives later found that the body was that of Dorzee "Bubba" Hill. Hill was a known heroin dealer who worked the "Buckeye Strip", an area of Buckeye Road in Phoenix bordered by 7th and 15th Avenues. Defendant and his girl friend, Sandra Winegar, were soon thereafter suspects in the murder. ¹

An autopsy was performed on the body and it was determined that Hill died from a blow to the head with a blunt instrument, later discovered to be the blunt end of an axe. Laboratory analysis revealed the presence of cat hairs and human Caucasian hairs on Hill's body. Sheriff's detectives surmised that Hill was killed elsewhere and transferred to the desert by car and dragged by more than one person to the discovery place.

Investigation of the crime led sheriff's detectives to believe that defendant and Winegar were involved. Sheriff's Detectives Al Weiss and Ralph Dominguez located defendant and Winegar in Hagerman Idaho, Winegar's home town. After a confrontation on a Hagerman street by Weiss, Dominguez and four local police officers, defendant and Winegar were transported 20 miles to Gooding, Idaho, for further questioning. Detective Dominguez primarily questioned Winegar and Detective Weiss primarily questioned defendant in a separate room. A search warrant was executed on the suspects' car and the house where they were staying. At the conclusion of the four-hour questioning session defendant and Winegar were charged with first degree murder and armed robbery.

At trial the state's main witness was Detective Weiss who detailed the initial investigation, the confrontation on the Hagerman street and the transport of defendant and Winegar to Gooding, Idaho. Allegedly, facilities in Hagerman were not adequate to conduct proper interviews.

Weiss testified that defendant confessed to the murder of Dorzee Hill. Defendant told Weiss that he and Winegar were upset because Hill had sold them bad heroin which caused Winegar to become ill. Hill also had made repeated sexual advances toward Winegar. Defendant told Weiss of a plan he and a man named Jack Henry discussed in Winegar's presence, whereby they would rob Hill of his drugs and money by hitting him over the head with a tire bat. ² This plan was never carried out with Henry as a participant.

Defendant told Weiss that on the day of the murder, Winegar sought out Hill, told him defendant no longer lived at the apartment and asked him to come over. It was contemplated that once Hill was inside the apartment, defendant would beat him over the head.

According to defendant, when Winegar returned Hill did not immediately follow, but came in the apartment shortly thereafter. Hill immediately headed toward the bedroom. Defendant, who was hiding in the kitchen, sneaked up from behind and struck Hill on the head with the blunt end of an axe. Defendant then struck Hill again as he attempted to get up off the floor. Defendant next took drugs and approximately $82.00 from Hill's pockets. The two then injected themselves with heroin. Winegar then went to the store and bought wine, which was consumed by the two immediately upon her return, and plastic bags in which to wrap Hill's body.

Defendant and Winegar drove Hill's car and abandoned it in a south Phoenix neighborhood. Then late at night the two disposed of the body in the desert north of Phoenix near the Carefree highway. Defendant and Winegar remained in Phoenix for a few days and then drove to California to visit defendant's family. From there they drove to Hagerman, Idaho, to visit Winegar's family.

At trial defendant testified and admitted killing Dorzee Hill with an axe. He denied ever planning to rob Hill, but his testimony was consistent with his previous statement to Detective Weiss that he and Winegar took money and drugs from Hill's body. Defendant told of an earlier argument he had with Hill over the quality of heroin he was selling. At that argument Hill allegedly threatened to kill defendant over $100.00 for drugs previously sold to defendant on credit. Defendant then testified that he was frightened when Hill came over to the apartment because he thought Hill and a bodyguard would attempt to collect the $100.00. Hill came alone. At trial Sandra Winegar did not testify, claiming the fifth amendment privilege against self-incrimination, even though she was granted immunity by the state.

Defendant raises numerous issues and the state has cross-appealed. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), A.R.S. §§ 13-4031, -4032, and -4033 and Rule 31.2(b) Ariz.R.Crim.P., 17 A.R.S.

I. SELF-DEFENSE INSTRUCTION

At the end of defendant's trial the jury was instructed on the issue of self-defense. The instruction read as follows "The Defendant was justified in using or threatening physical force in self-defense if the following two conditions existed:

(1), a reasonable person in the Defendant's situation would have believed that physical force was immediately necessary to protect against another's use or attempted use of force.

(2), the Defendant used or threatened no more physical force than would have appeared necessary to a reasonable person in the Defendant's situation.

However, a person may use deadly physical force in self-defense to protect himself from another's use or threatened use of deadly physical force.

Self-defense justifies the use or threat of physical force only while the apparent danger continues. The right to use physical force in self-defense ends when the apparent danger ends.

Actual danger is not necessary to justify the use of physical force in self-defense. It is enough if a reasonable person in the Defendant's situation would have believed that he was in immediate physical danger.

Deadly physical force means:

(1), force which is used for the purpose of causing death or serious physical injury. Or:

(2), force used in a way which creates a substantial risk or risk of death or serious physical injury. Or:

(3), force which can create in its intended use a substantial risk of death or serious physical injury.

As to the death in this case, if you decide that the Defendant's conduct was justified, you must find the Defendant not guilty of the crimes of murder first, murder second and manslaughter." (Emphasis added.)

The defendant argued that the instruction constituted fundamental error and impermissibly shifted the burden of proof by requiring the jury to decide defendant's conduct was justified prior to acquitting him. We agree. The state conceded this point in its brief and based on this issue alone defendant is entitled to a new trial.

In State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984), this Court held that the failure to fully instruct the jury that an accused's burden concerning self-defense is limited to raising a reasonable doubt and the burden on the state was then to disprove beyond a reasonable doubt that defendant acted in self-defense constituted fundamental error. Although Rule 21.3(c), Arizona Rules of Criminal Procedure, 17 A.R.S., requires a party to object specifically to an instruction or portion thereof in order to preserve the issue on appeal, where the matter is vital to the rights of a defendant the trial judge is required to instruct the jury on its own motion. State v. Arnett, 119 Ariz. 38, 49, 579 P.2d 542, 553 (1978); State v. Baker, 126 Ariz. 531, 533, 617 P.2d 39, 41 (App.1980).

At trial and absent objection from the state, defendant sought and obtained self-defense instructions in accord with Recommended Arizona Jury Instructions Nos. 4.01, 4.04 and 1.058. However, the failure of the trial court to inform the jury of each side's burden of proof was fundamental error since defendant testified that he acted in self-defense.

Because we must reverse as a result of erroneous jury instructions, we need not consider all the questions raised by the defendant. We will, however, consider those questions likely to be raised again on retrial, keeping in mind that different evidence presented at retrial may mandate different results.

II. LESSER INCLUDED OFFENSE INSTRUCTION

The defendant alleges that the trial court committed fundamental error when it gave the following instruction:

"The Defendant is not on trial for any act or conduct not alleged in the Indictment or which may be a lesser included offense of the acts or conduct alleged in the Indictment."

The trial court did, however, give instructions to the jury that it could consider the lesser crimes of second degree murder and manslaughter. It also submitted to the jury an instruction on the crime of theft only in written form. Although the instruction in question is confusing there was no objection raised at trial. On remand the trial court should omit the language concerning lesser offenses for those acts or crimes not alleged in the indictment. This deletion will eliminate any possible misunderstanding as to the jury's ability to convict defendant of a lesser included offense.

III. AGGRAVATING CIRCUMSTANCE--A.R.S. § 13-703(F)(1)

Defendant was convicted in 1965 in California of robbery. At the aggravation-mitigation hearing the state proved the conviction. A.R.S. § 13-703(F)(1) states the following constitutes an...