State v. Williams, 5276

• Decision Date: 26 March 1982
• Docket Number: No. 5276,5276
• Citation: 644 P.2d 889,132 Ariz. 153
• Parties: STATE of Arizona, Appellee, v. Scott Jay WILLIAMS, Appellant.
• Court: Arizona Supreme Court

Page 889

644 P.2d 889

132 Ariz. 153

STATE of Arizona, Appellee, v. Scott Jay WILLIAMS, Appellant.

No. 5276.

Supreme Court of Arizona, In Banc.

March 26, 1982.

Rehearing Denied May 11, 1982.

Robert K. Corbin, Atty. Gen., William J. Schafer III, Chief Counsel, Criminal Division, Gerald R. Grant, Asst. Atty. Gen., Phoenix, for appellee

McCarthy & Sandman by Cary Sandman, Tucson, for appellant.

GORDON, Vice Chief Justice:

Appellant, Scott Williams, was convicted of three counts of dangerous or deadly assault by a prisoner, for which there is a required sentence of life imprisonment. A.R.S. § 13-1206. ¹ Appellant was sentenced "D tank" is a distinct part of Pima County Jail which houses high security risks and disciplinary problems. The tank contains a number of small cells lined along a narrow corridor called a run. The opening and closing of cells is controlled electronically. There are no windows in D tank. The inmates housed there spend 23 hours a day in their cells and are permitted one hour in the exercise yard. Sanitary conditions are very poor in D tank. Many of the cells do not have operative toilet facilities. Jail administrators admit that mentally deranged persons are confined in the tank. The mentally ill inmates sometimes beat on their bars and yell throughout the night, spread feces over the walls of their cells, and throw urine and feces into the run.

to three terms of life imprisonment to be served concurrently. Appellant challenges the convictions. We have jurisdiction pursuant to Ariz.Const. Art. 6, § 5(3), and A.R.S. § 13-4031.

There is constant tension in D tank due to the living conditions. The inmates react antagonistically toward the prison personnel who in turn treat the inmates poorly. The behavioral patterns of the "mentally healthy" inmates degenerate and these prisoners engage in deviate conduct.

On the evening of June 23, 1981 the inmates of D tank, complaining that the food was cold, threw food and trays into the run. During a late exercise hour some of the prisoners drank homemade alcohol with no objection from detention officers. Later in the evening a prisoner, Meronek, wishing to relieve himself, requested permission to use the toilet facilities. A corrections officer opened the cell and noticed that Meronek was walking stiffly. Meronek had a broken broom handle down a leg of his pants. Even though Meronek volunteered to surrender the stick, the officer insisted that he, and not Meronek, retrieve the stick and a struggle ensued. The normally high tension level in D tank intensified. The inmates, incensed by the officer's perceived brutality against Meronek, began to break the few remaining commodes off of cell walls and to throw sheets and blankets into the run and set them afire. When detention officers attempted to enter the smoke-filled tank they were pelted with pieces of porcelain. The fire department was called to the jail and fire hoses were used to soak down the run and all the cells. To quell the disturbance and insure prisoner safety the decision was made to remove all prisoners from the tank. A SWAT (Special Weapons and Tactics) team arrived on the scene with dog units. Cells one through five were opened individually and the prisoners removed without incident. Appellant's cell, number six, was mistakenly opened prematurely, and appellant ran to the far end of the corridor. To protect himself from the prospect of dog bites appellant had wrapped his upper torso and head in wet blankets. As appellant ran down the corridor another inmate handed him a broken broom handle with a jagged, pointed end. Brandishing the stick appellant turned to face the approaching four member SWAT team. The team advanced slowly and at one point was stopped because a prisoner, still in his cell, poked a stick at them causing a neck injury to one of the officers. During this time appellant would advance down the corridor toward the officers jabbing his stick at them and then retreat again. All of appellant's blows hit the officers' shields, and no SWAT team member was injured by appellant. The remaining cellmates shouted encouragement to appellant as he yelled to officers to send down the dogs so he could kill them. The firefighters turned their hoses on appellant knocking him to the floor. Once again the officers advanced and reaching appellant attempted to subdue him. There is conflicting testimony whether at this point appellant continued to

struggle or tried to protect himself against the blows of the officers. The evidence is in agreement that appellant sustained head injuries and was bitten several times by the dogs, once in the face. Two officers were also bitten by the dogs during the chaos. Appellant was dragged out of D tank and hog-tied in the outer area, the sally port, where he lay bleeding until he was taken to Kino Hospital for medical attention.

INSTRUCTION ON SELF-DEFENSE

Appellant contends the trial court erred in instructing the jury that he did not have a right to self-defense and he therefore was deprived of due process.

On appeal appellant denies engaging in assaultive actions. The state posits that appellant cannot deny involvement in any assaultive behavior yet argue that he had a right to a self-defense instruction. The state's proposition of law is correct. Appellant's position contains an obvious contradiction and simple logic demands that a "defendant who disclaims any assaultive behavior on his part is not entitled to a self defense instruction." State v. Miller, 129 Ariz. 42, 43, 628 P.2d 590, 591 (App.1981). This proposition, however, is not dispositive in this case because of the facts before us. Although appellant denies attempting to hit an officer he admits striking at the shields of the officers with his stick. These actions do constitute assaultive behavior, but without more do not preclude the giving of a self-defense instruction.

The trial judge did not explain on the record why a self-defense instruction was not available to appellant. The judge may have thought that the force used against appellant was lawful as a matter of law and therefore there was no right to the use of self-defense. In the absence of a clear expression of the reasons for instructions we cannot speculate as to why a trial court acted a certain way. This lack of clarity, however, does not hamper our analysis. Even if the officers had employed unlawful physical force appellant still is not entitled to a self-defense instruction under the facts of this case. A.R.S. § 13-404.

Appellant argues that a reasonable person would have believed repellant force was necessary to protect himself against the advancing SWAT team members. Section 13-404(A) permits the use of necessary force to protect oneself from unlawful force. We, however, do not have to determine if appellant's behavior was reasonable because he provoked the use of force against him by participating in the disturbance. A.R.S. § 13-404(B)(3). Appellant admits ripping his commode from the wall, throwing procelain, and setting fires. The Legislature has determined that one who provokes another's use of force cannot claim self-defense unless the provoker "withdraws from the encounter or clearly communicates to the other his intent to do so reasonably believing he cannot safely withdraw from the encounter." A.R.S. § 13-404(B)(3)(a). There are no facts in the record before us that indicate that appellant withdrew from the disturbance or that he attempted to communicate a withdrawal before the assault had occurred. Appellant, wrapped in wet blankets and armed with a pointed stick, ran down the tank corridor and turned to face the officers. There is no evidence that before assaulting the officers appellant attempted to communicate a withdrawal from the altercation. Appellant did not call out or indicate by any physical act that he wished to be taken out peacefully. Appellant testified that he was afraid and understandably so; but in the absence of any facts constituting a withdrawal appellant was not justified in using force against the officers. Had the defense presented evidence satisfying all of the elements of A.R.S. § 13-404, even if this evidence was in complete conflict with the state's evidence, appellant would have been entitled to an instruction on self-defense. Everett v. State, 88 Ariz. 293, 356 P.2d 394 (1960).

Appellant's contention that it was the conditions of the jail, and not he and other inmates, which provoked the riot is a novel argument. Appellant admits being personally involved in the disturbance. This Court will not deny that severe overcrowding A trial court is not under any obligation to give a requested instruction not warranted by the evidence presented in the case. State v. Reinhold, 123 Ariz. 50, 597 P.2d 532 (1979); State v. Denton, 101 Ariz. 455, 420 P.2d 930 (1966). The trial court did not err in instructing the jury appellant had no right to claim self-defense.

at the Pima County Jail affects prisoners retained there. We cannot, however, say these conditions and not the appellant provoked the disturbance.

INSUFFICIENCY OF THE EVIDENCE

Appellant contends that the trial court erred in failing to grant his motion for a directed verdict of acquittal arguing that there was insufficient evidence to warrant a conviction. We disagree.

On appeal from a conviction an appellate court considers the evidence in the light most favorable to sustaining the verdict. State v. Gracia, 121 Ariz. 417, 590 P.2d 1363 (1979), and resolves all reasonable inferences in favor of the state. State v. Acree, 121 Ariz. 94, 588 P.2d 836 (1978).

Members of the SWAT team were issued protective apparel consisting of face and riot shields, helmets, and chest protectors. The protective gear was worn during the disturbance. Appellant asserts that the stick he used against the officers was not a dangerous instrument ² because it was not readily capable of causing death or serious physical injury ³ under the...