State v. Williams

Decision Date08 May 1984
Docket NumberNos. 1,CA-CR,s. 1
PartiesSTATE of Arizona, Appellee, v. Eddie James WILLIAMS, Appellant. 6207, 1 6963.
CourtArizona Court of Appeals
Robert K. Corbin, Atty. Gen. by William J. Schafer, III, Chief Counsel, Criminal Div., and Robert S. Golden, Asst. Atty. Gen., Phoenix, for appellee
OPINION

GREER, Judge.

Appellant was charged by information with second degree murder, and following a jury trial at which he raised self-defense, he was convicted of the charge. He was sentenced to 21 years imprisonment.

The charge against appellant arose from a confrontation with the victim, Fred Garcia. Several eyewitnesses to the shooting testified at trial. The appellant had driven a friend, Red, to a bar in Phoenix so that Red could obtain a loan. There was also testimony that the purpose of the trip to the bar was to permit Red to obtain narcotics. While Red was attempting to purchase narcotics, the victim approached appellant's vehicle to talk to one of the female passengers. Appellant remained in the driver's seat and spoke with the victim. Although appellant had not met the victim before, Red had told him that the victim was part of the "Mexican Mafia" and that the victim did not like strangers coming around the bar.

The victim had a conversation with appellant and, at various times, the victim rested his hands on the sill of the open driver's window of appellant's vehicle. Red told the victim to stop the conversation with appellant and, at that point, the victim stood up. He apparently said something to Red, and leaned back down to talk to the appellant through the open driver's window. As he bent down to speak with appellant again, appellant shot the victim between the eyes with a .22 caliber revolver. Appellant was arrested a short time later after he had driven away.

On appeal, appellant raises the following issues: (1) the trial court erred in refusing to admit evidence of prior, specific incidents of misconduct by the victim; (2) the trial court committed fundamental error in its instructions to the jury; and, (3) the prison sentence finally imposed on the appellant deprived him of due process of law.

EVIDENCE OF PRIOR SPECIFIC INCIDENTS OF MISCONDUCT BY THE VICTIM

On appeal, appellant challenges the trial court's ruling which excluded evidence of the victim's violent character through his prior armed assaults, of which appellant had no prior knowledge.

At the close of the state's case, defense counsel moved in limine to introduce the victim's prior assaults to show the victim's violent character. The prosecutor stated that she had no objection to the defense putting on evidence of the victim's reputation for violence or belligerence, but argued that the defense could not go into specific acts of the victim because they were never communicated to or known by the defendant. Counsel also argued the admissibility of the appellant's knowledge, through Red, that the victim was a member of the "Mexican Mafia." At the conclusion of the hearing, the court denied the motion in limine, "in reference to the statements of Campbell [Red] that the defendant intends to testify to."

On April 27, 1982, prior to calling witnesses, defense counsel requested the court in chambers to expand its previous ruling. Counsel argued that pursuant to Rule 406, Arizona Rules of Evidence, he should be permitted to introduce the victim's prior armed assaults as part of the victim's habit. The trial court denied the request to prove specific instances of misconduct.

Appellant argues that the victim's "intent," not his character, was the critical issue, and similar prior acts which are fairly probative of such determination are clearly admissible. He argues the evidence would have shown that it was the victim's consistent habit to carry a gun when intoxicated.

When character or a trait of character is an essential element of a charge, claim, or defense, proof of specific instances of the person's conduct may be admissible. Rule 405(b), Arizona Rules of Evidence; State v. Lehman, 126 Ariz. 388, 391, 616 P.2d 63 (App.1980). To be an "essential element," the character trait must be an operative fact which, under substantive law, determines the rights and liabilities of the parties. Id. Although appellant suggests that the victim's "intent" was at issue in this case, clearly it was not an essential element to be proven by the state. State v. Lehman, 126 Ariz. 388, 391, 616 P.2d 63 (App.1980), quoting McClellan v. State, 264 Ark. 223, 570 S.W.2d 278 (1978).

In McClellan v. State, supra, the defendant offered testimony regarding a specific, prior bad act of the victim in order to demonstrate that the victim might have been the aggressor at the time he was killed. The trial judge did not admit the evidence. The court stated:

Rule 405(a) of the Uniform Rules of Evidence provides that an admissible trait of character may be proved by testimony as to reputation or by testimony in the form of an opinion. On cross-examination inquiry may be made as to relevant specific instances.

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Rule 405 is taken verbatim from Rule 405 of the Federal Rules of Evidence. 28 U.S.C.A., Federal Rules of Evidence (1975). The Advisory Committee's Notes to the federal rule explain why direct evidence of specific conduct is limited to instances in which the trait of conduct is squarely in issue:

Of the three methods of proving character provided by the rule, evidence of specific instances of conduct is the most convincing. At the same time it possesses the greatest capacity to arouse prejudice, to confuse, to surprise, and to consume time. Consequently the rule confines the use of evidence of this kind to cases in which character is, in the strict sense, in issue and hence deserving of a searching inquiry. When character is used circumstantially and hence occupies a lesser status in the case, proof may be only by reputation and opinion.

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... The trait of character must be an operative fact which under substantive law determines the rights and liabilities of the parties.

570 S.W.2d at 279-80 (emphasis added).

In McClellan, the court concluded that the victim's character as an aggressive person was not "an essential element" of the defendant's defense of self-defense.

In State v. Lagasse, 410 A.2d 537 (Me.1980), a defendant, charged with murder, attempted to introduce evidence that the victim, a heavy drinker, had assaulted his ex-wife on the average of three times a week over a ten year period. The defendant argued that the evidence was admissible either as character evidence under Rule 404, or as evidence of habit, under Rule 406. The purpose of offering the evidence was to bolster his claim of self-defense on the theory that the evidence would tend to show that the decedent was the aggressor in the fatal fight. 410 A.2d at 541. In responding to the argument, the court stated:

Habit or routine practice is admissible under M.R.Evid. 406(a). The rationale behind the rule is explained in the Advisers' Note: '[H]abit describes one's regular response to a repeated specific situation so that doing the habitual act becomes semi-automatic. It is the notion of the invariable regularity that gives habit evidence its probative force.' Advisers' Note, M.R.Evid. 406. See generally R. Field & P. Murray, Maine Evidence § 406.1 (1976). The tendency of a person to engage in violent acts while under the influence of intoxicating liquor does not establish the 'regular response to a repeated specific situation' necessary to constitute habit under M.R.Evid. 406. Id. Rather, such evidence is character evidence--'a generalized description of one's disposition, or of one's disposition in respect to a general trait, such as honesty, temperance, or peacefulness.' Field & Murray, supra. Thus, the evidence was not admissible under the provisions of Rule 406(a).

410 A.2d at 541-42.

We agree with the court in Lagasse. Evidence of a victim's tendency to engage in violent acts while under the influence of intoxicating liquor is properly considered character evidence and not evidence of habit. As ...

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