State v. Woodall

• Court: Arizona Court of Appeals
• Writing for the Court: RUDOLPH J. GERBER
• Citation: State v. Woodall, 155 Ariz. 1, 744 P.2d 732 (Ariz. App. 1987)
• Decision Date: 16 July 1987
• Docket Number: CA-CR,No. 1,1
• Parties: STATE of Arizona, Appellee, v. Clayton WOODALL, Appellant. 10012.

Page 732

744 P.2d 732

155 Ariz. 1

STATE of Arizona, Appellee, v. Clayton WOODALL, Appellant.

No. 1 CA-CR 10012.

Court of Appeals of Arizona Division 1, Department C.

July 16, 1987.

Reconsideration Denied Aug. 27, 1987.

Review Denied Nov. 17, 1987.

[155 Ariz. 2] Robert K. Corbin, Atty. Gen. by William J. Schafer III, Chief Counsel Crim. Div., Mark F. Aceto, Asst. Atty. Gen., Phoenix, for appellee.

John C. Williams, Prescott, for appellant.

OPINION

RUDOLPH J. GERBER, Judge Pro Tem.

Following a jury trial, defendant was convicted of second degree murder, aggravated assault, leaving the scene of a fatal accident, driving a motor vehicle while under the influence of intoxicating liquor with a prior conviction for DWI and without driver's license, and driving a motor vehicle with a blood alcohol content of .10 or greater with a prior conviction for DWI and without a driver's license. Concurrent sentences were imposed for all counts, with a sentence of 20 years for the second degree murder conviction.

The charges arose out of a collision where defendant, after crossing the center line, killed the driver of another automobile. A passenger in the other automobile was also seriously injured. Evidence at trial showed that defendant had been consuming alcoholic beverages throughout the day before the collision. He had been at a bar in Cave Creek where he was observed stumbling and knocking over bottles. He was offered a ride by a female companion because he was obviously intoxicated. He refused the offer and left alone. Within a few moments after leaving the bar, the fatal collision occurred. At the time he crossed the center line, he narrowly missed hitting another vehicle. After striking the first vehicle, he drove another 154 feet south on Cave Creek Road, where he then collided with a third vehicle. A driver following this vehicle got out of his car to assist both drivers. He removed defendant from his vehicle and sat him at a bus stop nearby and repeatedly instructed him to remain seated there. Defendant left the bus stop and walked to a nearby garage, where he was apprehended.

On appeal, appellant now argues:

1. The trial court erred in not granting a motion for judgment of acquittal on the charge of second degree murder;

2. The trial court erred in failing to grant a motion to suppress incriminating statements;

3. He received ineffective assistance of counsel during that portion of the trial wherein the verdict was rendered;

4. The trial court erred in permitting amendments to counts five and six of the indictment;

5. The trial court unlawfully characterized the second degree murder conviction as dangerous.

DENIAL OF MOTION FOR JUDGMENT OF ACQUITTAL ON SECOND DEGREE MURDER CHARGE

Defendant first argues that the court erred in denying his motion for judgment of acquittal on the second degree murder charge because there was no evidence that he had acted with "extreme indifference to human life." He argues that the evidence merely showed that he had a history of DWI's, refused a ride just before the collision, had spilled a beer, was stumbling, speeding, and had crossed a center line. He argues that this conduct was reckless at worst and hardly shows extreme disregard for human life amounting to second degree murder. In response, the state argues that these facts alone show enough evidence of "extreme indifference" to support the second degree murder verdict.

Defendant's argument is refuted both by case law and by the legislative history of A.R.S. § 13-1104. This section derives in part from the Oregon Criminal Code and from the Model Penal Code. It provides that:

A. A person commits second degree murder if without premeditation:

....

3. Under circumstances manifesting extreme indifference to human life, such person recklessly engages in conduct which creates a grave risk of death and thereby causes the death of another person.

The phrase "manifesting extreme indifference to human life" does not create an additional culpable mental state but only requires an extreme form of recklessness greater than is required for manslaughter. See State v. Boone, 294 Or. 630, 632, 661 P.2d 917, 919 (1983). Whether this "extreme" indifference to human life exists is to be determined from all the facts and circumstances surrounding the vehicular homicide. State v. Boone at n. 8; Hamilton v. Commonwealth, 560 S.W.2d 539, 542 (Ky.1977).

In Boone, the Oregon court observed that the modern term "extreme indifference to human life" replaces outdated phrases which previously defined second degree murder as an act "imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without any design to effect the death of any particular individual." 294 Or. at 633, 661 P.2d at 920. Determination of this state of mind requires an evaluation of the degree of indifference to the welfare of others. Thus, the court in Boone reviewed cases from various jurisdictions which inferred reckless disregard for human life from defendants who were driving while intoxicated, who sped, swerved, ran red lights, or drove on the wrong side of the road. That court found that erratic driving, coupled with impaired driving ability, sufficed to prove the extreme recklessness necessary for second degree assault in Oregon. Intoxication alone has also been considered a significant, if not controlling, factor for a murder conviction in many vehicular homicide cases. Hamilton v. Commonwealth; Annot. 21 A.L.R.3d 116, 150 (1968) (homicide by automobile as murder); L. Isensee, United States v. Fleming: When Drunk Drivers are Guilty of Murder, 23 Am.Crim.L.Rev. 135 (1985).

In reviewing the sufficiency of the evidence of defendant's extreme recklessness, the Boone court found that a jury could properly consider: (1) the degree of defendant's intoxication (the driver there had a .24 breathalyzer reading); (2) his erratic driving, including the fact he crossed the center line causing a fatal accident; and (3) defendant's conduct at the scene (not only was defendant unable to assist but actually interfered with assistance to the victims). See also Slaughter v. State, 424 So.2d 1365 (Ala.Cr.App.1982) (extreme indifference shown by defendant's prior convictions for DWI and that he was aware of his condition before he started to drive).

We need not look only to case law from other jurisdictions for support for treating a vehicular death as second degree murder. The legislative history of the homicide provisions of Arizona's present criminal code envisions the same possibility. A major source for our homicide statutes was the Model Penal Code, which treats "recklessness" and "extreme indifference to human life" as matters of degree determined by the degree of risk involved:

[R]isk, however, is a matter of degree and the motives for risk creation may be infinite in variation.... The conception that the draft employs is that of extreme indifference to the value of human life. The significance of purpose or knowledge is that, cases of provocation apart, it demonstrates precisely such indifference. Whether recklessness is so extreme that it demonstrates similar indifference is not a question that, in our view, can be further clarified; it must be left directly to the trier of facts.

....

Insofar as the draft includes within the murder category cases of homicide caused by extreme recklessness, though without purpose to kill or even injure, it reflects both the common law and much explicit statutory treatment usually cast in terms of conduct evidencing a "depraved heart regardless of human life" or some similar words. Examples usually given include shooting into a crowd, an occupied house or an occupied automobile, though they are not of course exhaustive.

Model Penal Code, Tentative Draft # 9, § 201.2 at 29 (footnotes omitted).

Elsewhere, the Model Penal Code concludes:

Given the Code definition of recklessness, we think the point involved is adequately put by asking whether the recklessness "demonstrates extreme indifference to the value of human life" and that it would, as we have said, be undesirable to attempt a more specific formulation.

Model Penal Code, Tentative Draft # 9, § 201.2 at 32.

Based on this rationale, the drafters of the present Arizona homicide provisions intended that mental state--specifically, the degree of awareness of risk--govern the degree of homicide. Intention and knowledge are at the high end of awareness of risk; negligence is at the low end. Recklessness, defined as conscious disregard for risk, lies between these poles. "Extreme indifference" is but a more culpable variety of recklessness. The Arizona Criminal Code Commission commentary to the homicide statutes thus concludes:

In company with the Proposed Oregon Criminal Code, § 91 and the Model Penal Code comment above, the offense of vehicular homicide is now treated like any other homicide depending upon the mental state involved. Consistent with State v. Chalmers, 100 Ariz. 70, 411 P.2d 488 (1966), under extreme circumstances it may be murder under §§ 1103(a) or 1104(a) or, at the other extreme, no criminal offense at all. Vehicular homicides reflecting criminal negligence come within § 1101(a).

Arizona Criminal Code Commission commentary 126 (1975).

Consistent with this legislative history, the degree of vehicular homicide is governed generally by the degree of culpable mental state, which in turn depends on the specific facts of each case. "Extreme indifference" is no exception: it too rests upon a consideration of particular facts showing the degree of awareness of risk to others.

Prior case law from this court has recognized this very distinction between recklessness and the more culpable "extreme indifference to human life":

Accordingly, while manslaughter requires only a showing of recklessness, reckless second degree murder requires also a showing of "extreme indifference to human life" which created a "grave risk of...