State v. Travis

• Decision Date: 27 January 1976
• Docket Number: CA-CR,No. 2,2
• Citation: 26 Ariz.App. 24,545 P.2d 986
• Parties: The STATE of Arizona, Appellee, v. Charles Fradric TRAVIS, Appellant. 703.
• Court: Arizona Court of Appeals

Page 986

545 P.2d 986

26 Ariz.App. 24

The STATE of Arizona, Appellee, v. Charles Fradric TRAVIS, Appellant.

No. 2 CA-CR 703.

Court of Appeals of Arizona, Division 2.

Jan. 27, 1976.

Rehearing Denied March 4, 1976.

Review Denied March 23, 1976.

Bruce E. Babbitt, Atty. Gen., by Heather A. Sigworth, Asst. Atty. Gen., Tucson, for appellee.

John M. Neis, Pima County Public Defender, by Kenneth J. Peasley, Asst. Public Defender, Tucson, for appellant.

OPINION

HOWARD, Chief Judge.

Charles Travis was found guilty of second degree murder and was sentenced to serve not less than ten nor more than twelve years in the Arizona State Prison. He raises six issues on appeal; three concern the giving, or refusing to give, certain instructions, two concern conduct of the prosecutor and the last deals with the admissibility of certain evidence claimed to have been gathered in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We find no reversible error and therefore affirm.

The undisputed facts are that after some drinking and quarrelling throughout the night of March 16 and the morning of March 17, 1975, appellant shot and killed his wife. The defense consisted of the alternative theories of self-defense, heat of passion, and intoxication sufficient to negate specific intent and hence reduce murder to manslaughter. The jury returned a verdict of second degree murder apparently finding that the shooting was not premeditated but rejecting appellant's contention that he was so intoxicated that he could not have formed the specific intent required to have committed murder.

In spite of the fact that the trial court instructed the jury on all degrees of homicide including voluntary and involuntary manslaughter, on the effect of intoxication on specific intent, and on self-defense, appellant nevertheless complains that the court failed to qualify the malice instruction by pointing out to the jury that malice can be inferred from the use of a deadly weapon only in the absence of mitigation, justification, or excuse. Appellant cites State v. Brock, 101 Ariz. 168, 172, 416 P.2d 601, 605 (1966) in support of his contention. The court in Brock, indeed said that 'The instruction on second degree murder must include the element of malice, . . . and exclude circumstances of mitigation, justification or excuse.' (citations omitted). This language, however, refers to the necessity of instructing on lesser offenses if the evidence tends to show that a defendant may be guilty of an offense less severe than the crime charged. Here appellant received all of the instructions on mitigation, justification and excuse to which he was entitled.

Appellant contends nevertheless that there is some similarity between permitting the jury to infer malice from the use of a deadly weapon and requiring a defendant to prove that he acted in the heat of passion or on sudden provocation to reduce murder to manslaughter, the latter having recently been held to violate the Due Process Clause of the Fourteenth Amendment in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). We fail to see the similarity. Mullaney merely holds that '. . . when the issue is properly presented, . . .' '. . .. the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation . . ..' 421 U.S. at 704, 95 S.Ct. at 1892, 44 L.Ed.2d at 522. Mullaney deals with the law of Maine which, until the United States Supreme Court decided the case, conclusively presumed malice from the fact of an unalwful killing. The burden was upon the defendant to prove the mitigating factor of heat of passion upon sudden provocation. This has never been the law in Arizona. In this state, the prosecution is required to prove malice beyond a reasonable doubt. Moore v. State, 65 Ariz. 70, 76, 174 P.2d 282 (1946). The mere fact that malice may be proven by circumstantial evidence, in this case by among other things an inference to be drawn from the use of a deadly weapon, does not shift the burden to the defendant to prove its absence. The United States Supreme Court itself stated in Mullaney, 421 U.S. at 702, 95 S.Ct. at 1891, 44 L.Ed.2d at 521:

'. . . proving that the defendant did not act in the heat of passion on sudden provocation is similar to proving any other element of intent; it may be established by adducing evidence of the factual circumstances surrounding the commission of the homicide. . . .'

Appellant's second contention is that the trial court erred in giving an instruction concerning the inference to be drawn from contradictory statements of the accused. Although our Supreme Court has recently approved of this instruction in State v. Kountz, 108 Ariz. 459, 501 P.2d 931 (1972), appellant nevertheless contends that in the more recent case of State v. Settle, 111 Ariz. 394, 531 P.2d 151 (1975), the Court retracted from this position. We do not agree. The instruction disapproved of in Settle cautioned the jury to weigh the testimony of the prosecutrix in a rape case with particular care. The reason this was held to violate Article 6 Sec. 27 of the Arizona Constitution is that it amounted to a personal opinion of the judge. Such is not the case here. The inference to be drawn from contradictory testimony, as the inference to be drawn from the use of a deadly weapon, is permissive and is based upon the jury's finding of fact. No personal opinion of the trial judge is involved.

As with the inference of malice, the inference of untruthfulness does not shift the burden of proof to the defendant and hence involves no due process issue.

Appellant's next contention is that the trial court erred in refusing his requested instruction concerning the unfavorable inference to be drawn from a police officer's destruction of his notes after incorporating their substance into his official police report. We find no error in refusing this instruction for the reason that the notes, unlike the dynamite destroyed in State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964) were not 'evidence whose nature, quality, or description (were) at issue in the case,' as the language of the requested instruction indicates. Furthermore, Rule 15.4, Rules of Criminal Procedure, 17 A.R.S., specifically covers a situation such as this. Subsection (a)(2) of the Rule provides 'Handwritten notes which have been substantially incorporated into a statement shall no longer themselves be considered a statement.' The Comment to the Rule explains:

'The exception for superseded notes in Rule 15.4(a)(2) is added as a protection for the attorney and law enforcement officer to alleviate the bookkeeping problem of retaining every scrap of notes taken in a case, and to prevent cross-examination on 'jottings' contained in a notebook. . . .'

The notes taken by the police officer in this case were irrelevant once their substance was incorporated into the police report and the court therefore properly refused the requested instruction.

Next appellant contends that a comment by the prosecutor to the effect that appellant told the police officer one thing then testified to something else on the stand was grounds for a mistrial. We do not agree. It is true that an attorney ought not for ethical as well as legal reasons to intimate to a jury that opposing counsel has fabricated a defense. See Rule 29(a), DR 7--106(C) (2), Rules of the Supreme Court, 17A, A.R.S.; People v. Bain, 5 Cal.3d 839, 97 Cal.Rptr. 684, 489 P.2d 564 (1971).

Whether or not improper argument constitutes grounds for a mistrial however, is a matter for the trial court's discretion the exercise of which will not be reviewed on appeal unless there is 'invective so palpably improper that it is clearly injurious.' State v. Scott, 24 Ariz.App. 203, 537 P.2d 40, 43 (1975); State v. Adams, 1 Ariz.App. 153, 155, 400 P.2d 360 (1965). The prosecutor made the following comment:

'. . . I can only go by . . . what the Defendant told us right here after it occurred, after he had a chance to consult with his attorney, before he got a chance to see the charge against him and charge up a defense in the case.'

We do not consider this comment to be 'invective so palpably improper that it is clearly injurious' and therefore find no abuse of discretion.

Next appellant contends that the prosecutor's calling of a rebuttal witness after the court granted a motion in limine to preclude her testimony was improper. The only record available of what transpired when the prosecutor called her is a request by defense counsel to approach the bench followed by an off the record discussion. We are unable to determine the reason she was called, the reason defense counsel asked to approach the bench, or the ruling of the trial court. There being no record for our review on this issue, appellant is precluded from asserting error.

Appellant's final argument concerns the...