State v. Walton
| Decision Date | 29 June 1982 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 650 P.2d 1264,133 Ariz. 282 |
| Parties | STATE of Arizona, Appellee, v. Thomas Bennett WALTON, Appellant. 5130. |
| Court | Arizona Court of Appeals |
The defendant was convicted of second degree murder while armed, in violation of A.R.S. §§ 13-1104 and 13-604(G), following a trial by jury. He was committed to the Department of Corrections to serve a presumptive term of 10 1/2 years, with credit for 162 days of presentence incarceration. He raises seven issues on appeal:
1. Whether the trial court erred in denying his motion for a new determination of probable cause;
2. Whether the trial court erred in denying the defendant's motion to dismiss based on his claim that A.R.S. §§ 13-1102 through 13-1105 violate equal protection and are void for vagueness;
3. Whether the trial court erred in admitting into evidence photographs of the deceased which the defendant claims were unduly gruesome and prejudicial;
4. Whether the trial court erred in denying the defendant's motion for a judgment of acquittal based on the defendant's claim that the evidence was insufficient to warrant a conviction;
5. Whether the trial court erred in allowing into evidence an x-ray of the rib of the victim and testimony concerning the x-ray by a physician when the defendant asserts that the x-ray had not been disclosed by the prosecutor prior to trial;
6. Whether the trial court erred in instructing the jury that the defendant would not be subject to the death penalty in the event the jury found the defendant guilty of first degree murder;
7. Whether the sentence imposed by the trial court was excessive.
The defendant was charged by indictment with having committed first degree murder resulting from the shooting death of the victim, Johnny Cordova, during an altercation at the Rose Tree Bar in Flagstaff. The defendant, admitting that he shot the victim, contended that he killed Cordova in self-defense. The state presented its case in support of the first degree murder charge through the testimony of numerous eye witnesses to the offense, various investigating officers, and the county pathologist. A critical issue in the case was the distance between the defendant and the victim at the time of the shooting. In support of his claim of self-defense, the defendant called as witnesses a forensic pathologist, Dr. Benham, and a mathematician, Dr. Moore, who, together, reconstructed the path of the bullet through the body of the victim, calculating the angle of the bullet, and from that, the distance between the victim and the defendant at the time of the shooting. In rebuttal, and over the objection of the defendant, the state introduced into evidence an x-ray of the rib of the defendant and the testimony of the county pathologist to the effect that the bullet fractured the rib and deflected. This testimony in rebuttal tended to contradict the findings of Dr. Benham and Dr. Moore.
The shooting was investigated by Flagstaff police officer Cooper who responded to a call to the Rose Tree Bar at approximately 5:00 p.m. on August 17, 1980. As he entered the bar, Cooper observed the body of the victim lying on the floor near the west wall, and heard people in the bar stating that the defendant had shot the victim. Cooper called an ambulance for transporting the victim to the Flagstaff Community Hospital. The victim was pronounced dead at approximately 5:17 p.m.
Cooper took a statement from Dolly Cordova, the wife of the victim. Dolly told Cooper that her husband was tending bar and that she was sitting on a bar stool when the defendant entered the bar. The defendant approached her and touched her hair, stating what pretty hair she had. The victim told the defendant to stop touching his wife, but apparently the defendant did not heed this request. Dolly told Cooper that her husband walked from behind the bar toward the wall of the bar where he picked up a pool cue and approached the defendant. She stated that the defendant then shot the victim first in either the neck or facial area, causing her husband to turn around. She indicated that her husband walked toward the northwest corner of the pool table and stopped, and that the defendant approached him by several steps, fired his gun, and again shot the victim.
Prior to trial, Dolly Cordova was interviewed by the defendant's counsel and investigator. During the interview she stated that she felt that the defendant was defending himself at the time of the shooting. She said that at the time of the shooting, the victim was holding the pool cue as if it were a baseball bat with which to hit the defendant. She testified at trial that her husband was very jealous and would become violent if she spoke to other men. She related an incident where she had been sitting in the bar speaking to one of the victim's brothers when the victim became jealous and pushed his brother and began hitting her until she was knocked unconscious. She also testified at trial that she was afraid of the family of the victim because they blamed her for the killing and they had threatened to take her children away from her. Finally, at trial, when she was asked whether she thought the defendant had shot the victim in self-defense, she responded: "I don't know."
The state also called other eye witnesses whose testimony varied considerably. One witness testified that the defendant shot the victim twice in the back and that there was an approximately thirty-second interval between the two shots which were fired. The victim was in fact shot once in the face and once in the side. Another witness testified that the shots were less than a second apart. One witness indicated that he saw the victim approaching the defendant and that while the victim was walking fast, he did not appear to be angry or upset. Still another witness indicated that the victim appeared to be extremely angry as he approached the defendant. Dolly Cordova and another witness testified that the defendant was 15 feet from the victim at the time of the shooting. Another witness indicated that the defendant and the victim were ten feet apart at the time of the shooting.
The state's criminalist, Ken Kowalski, conducted tests on gunshot residue found around the hole in the shirt worn by the victim at the time of the shooting. The hole in the shirt was just under the left armpit, and was thus caused by the fatal second shot inflicted by the defendant. Kowalski testified that as a result of his test, he was able to determine that the gunshot wound was not a contact or near contact wound, which he defined as six inches or less from the victim. He also testified that the tests established that the shots could not have been fired from a distance greater than nine to ten feet from the victim. The defense called Dr. Moore, a mathematician from Northern Arizona University, who calculated the distance between the victim and the defendant at the time of the shooting as between 3.8 feet to 5 feet based upon the angle of the path of the bullet through the body. Dr. Moore did indicate that his calculations could vary if the victim were not standing upright at the time of the shooting.
The evidence also revealed that immediately after the shooting, the defendant left the Rose Tree Bar on foot and proceeded toward the police station. He was picked up by Officer Tullis in a patrol vehicle and transported to the Flagstaff police station where the officer advised the defendant of his Miranda rights. The defendant agreed to make a statement to the police officers. He told them that he and his friend, Keith, went to the Rose Tree Bar to have a couple of drinks and play some pool. When the defendant entered the bar, he saw a pretty girl sitting there and he walked up to her and said, "Hello, pretty lady", and touched her on the shoulder. The victim told him not to touch his girl, and the defendant moved away from the girl stating, "I'm sorry, I just said hello." The defendant indicated that the victim then broke from behind the bar, ran around the bar, and grabbed a pool cue from the cue rack. The defendant told the officers that he shot the victim twice to keep him from hitting him with the pool cue. He stated that he did not aim, but that he just shot. He also indicated that he did not want to shoot the victim, but that he had been hit in the head several years before with a pool cue and had recurring problems as a result of his injuries. An intoxilyzer test indicated that the defendant's blood alcohol reading was .06, and a subsequent blood test showed that his blood alcohol reading was .15. The defendant's statement to the police was tape recorded, and the recording was played for the jury.
Defendant first contends that the trial court erred in denying his motion for a new finding of probable cause made pursuant to Rule 12.9(a), Rules of Criminal Procedure, 17 A.R.S. He argues that the police officer testified to inaccurate and misleading information which led the grand jurors to believe that the defendant was not intoxicated at the time of the offense. He further argues that the prosecutor misstated the law concerning the element of premeditation required for first degree murder.
Before issuing a true bill charging the defendant with first degree murder on August 21, 1980, the Coconino County Grand Jury heard the testimony of Detective James of the Flagstaff Police Department. James related the defendant's statement to the grand jury and also related the statements of other witnesses to the shooting which differed from the defendant's version. Detective James responded to a question...
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