State v. Vogel
| Decision Date | 04 March 2004 |
| Docket Number | No. 1 CA-CR 02-0222.,1 CA-CR 02-0222. |
| Citation | 85 P.3d 497,207 Ariz. 280 |
| Parties | STATE of Arizona, Appellee, v. Elizabeth Delariva VOGEL, Appellant. |
| Court | Arizona Court of Appeals |
Terry Goddard, Attorney General By Randall M. Howe, Chief Counsel, Criminal Appeals Section and Joseph T. Maziarz, Assistant Attorney General, Phoenix, Attorneys for Appellee.
James J. Haas, Maricopa County Public Defender By Spencer D. Heffel, Deputy Public Defender, Phoenix, Attorneys for Appellant.
¶ 1 Elizabeth DeLariva Vogel (defendant) was convicted of manslaughter in the death of her husband. On appeal, she argues that the trial court erred when it instructed the jury that the use of physical force against another is not justified in response to verbal provocation alone in a case involving a defendant against whom the victim has committed domestic violence.1 We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031, -4033(A)(1) (2003). We conclude that the trial court correctly instructed the jury, pursuant to Arizona's statutory scheme, that verbal provocation alone is insufficient to justify the use of physical force in self-defense; instead, a fact finder must consider any history of domestic violence in determining whether a defendant reasonably believed the victim's statements were a threat amounting to more than mere verbal provocation.
¶ 2 On February 26, 2001, defendant called her daughter-in-law, Maria Garcia (Maria). Defendant was crying and screaming and said she had killed her husband, Charlie Vogel (victim). In response, Maria called 911. The Peoria police responded to the call and went to defendant's residence. When they arrived, defendant told an officer, "I killed my husband." The police found the victim on the floor in the kitchen. The victim was later pronounced dead at the scene, with the cause of death determined to be a gunshot wound to the chest entering from the victim's left side.
¶ 3 Defendant was indicted for second degree murder. At trial, she claimed she was a battered woman and acted in self-defense. Because defendant claimed that she was abused, we review her history in some detail.
¶ 4 Defendant was born in El Paso, Texas to Mexican parents. She married at age eighteen or nineteen, had two children, but divorced her first husband because he was abusive. She later had two more children.
¶ 5 In 1976, defendant and her children moved to Phoenix to live with her mother and sister. The victim, a next-door-neighbor, dated defendant for four years before they married in 1982 and began living together in victim's house.
¶ 6 Defendant testified that she knew the victim drank before they were married, but did not know he was an alcoholic until after their marriage. She also testified that the victim was a "good guy" when he was sober and she loved him. However, when the victim drank, he became angry, yelled and swore at defendant and her sons, and used racial slurs against them.
¶ 7 Defendant testified that, over the years, the victim's drinking problem worsened and a pattern of violence and physical abuse emerged. She testified that he sometimes hit her or grabbed her by the hair, put his fists through the walls and damaged furniture, and kicked defendant's legs when she tried to run outside or hit her in the face and knocked her down.
¶ 8 Defendant also testified that the victim broke her wrist by causing her to fall from a chair and threw a knife at her when she asked him to fix her car. The victim kept a number of guns and ammunition in the house. Defendant testified that he also had a .357 handgun in a fanny pack that he kept in his possession at all times. Furthermore, defendant testified that, on more than one occasion, the victim threatened to kill himself and defendant, saying, "You know that when I commit suicide, I'm going to take you with me." In an attempt to hide from the victim, defendant stated that she often slept in a trailer that was located on the victim's property.
¶ 9 Defendant's daughter-in-law, Maria, testified that defendant would stay with her and Manuel Garcia, defendant's adult son, every two or three months. Maria added that defendant would often cry and was usually frightened and nervous. ¶ 10 During an incident in September 1999, the victim was drinking excessively and was depressed. While seated at the kitchen table with his gun in front of him, the victim began to blame defendant for his problems. He called her a "bitch" and other derogatory names and said, Believing the victim would kill her, defendant turned around, got down on her knees and started to pray. She heard a shot. When she got up, she saw a bullet hole in the ceiling and the victim with blood on his face. The victim was admitted to a psychiatric hospital. However, defendant testified that after he returned, his drinking increased and he became more violent.
¶ 11 On the day the victim died, February 26, 2001, defendant testified that the victim started drinking at 4 a.m. Later in the day, while the victim took a nap, defendant went to a store, purchased a twelve-pack of beer. Defendant claimed she drank three beers; however, there were only six remaining when the police later searched the home. After the victim awoke, he sat at the kitchen table, with his fanny pack containing a gun placed in front of him. As in the past, the victim's voice became deeper and his hands were shaking. The victim began to call defendant, those "horrible names," like "stupid," "idiot," "bitch," and "whore" and said, He told her, "I want your ass out of here."
¶ 12 At trial, defendant testified that these events brought back memories of the September 1999 incident in which the victim sat at the kitchen table with a gun in front of him; his voice deepened, his hands shook, he was angry and verbally abusive. She testified that when she took the gun from the dining room, pointed it at him and then shot him, she was afraid for her life. She denied that the victim told her that he intended to divorce her, but admitted he said he wanted to get rid of her.
¶ 13 Defendant's family members also testified that the victim was an alcoholic and abused defendant both emotionally and physically. Other witnesses testified that defendant was a peaceful person.
¶ 14 Dr. Michael Bayless, a forensic psychologist, testified for defendant as an expert on domestic violence. Explaining the dynamics of economic and psychological control that the abuser has over the victim, he described a cycle of intimidation, threats, and violence by the abuser. He related that physical abuse is often intermittent and that there are subtle signs in the form of gestures or actions that precede physical violence. Becoming conditioned to such signs or "triggers," the victim can sense when physical violence may occur. He further explained the pattern of domestic violence in which abusers blame others for their problems and create feelings of guilt, shame, self-blame, fear, depression and anxiety in their victims.
¶ 15 Dr. Bayless indicated that he had examined defendant and had diagnosed her with major depression, low self-esteem, post-traumatic stress syndrome and dependent personality. Based upon his review of the police reports, his interviews with defendant and other family members, and his evaluation of various psychological tests, he concluded that defendant was the victim of domestic violence.
¶ 16 Dr. Bayless also opined that on the day of the shooting, defendant was fearful for her life. This was based upon her long history of victimization and the victim's pattern of drinking to excess, becoming angry, verbally abusive and sometimes physically violent. He also stated that on February 26, 2001, defendant had a flashback of the September 1999 incident in which the victim threatened to kill her and attempted suicide. The flashback, together with her isolation and the victim's statement that he was going "to get rid of her," led her to reasonably believe that she was in imminent danger for her life. At trial, defense counsel claimed that based upon past acts of domestic violence, defendant reasonably believed that deadly physical force was necessary to protect herself against the victim's threatened use of deadly physical force and that her actions were justified.
Although she had never used a gun before, defendant said she went into the kitchen, pointed the gun at the victim, and pulled the trigger. She admitted to police that she "surprised" the victim and conceded that he did not present a threat to her at the time of the shooting.
¶ 18 During the settlement of the jury instructions, the parties discussed the self-defense instructions. The State offered instructions that essentially tracked the language of A.R.S. sections 13-404(A)(B) and -405 (2001). Section 13-404 provides in pertinent part that:
A. Except as provided in subsection B of this section, a person is justified in using physical force against another when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself against the other's use or attempted use of...
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