State v. Wussler

Citation139 Ariz. 428,679 P.2d 74
Decision Date01 March 1984
Docket NumberNo. 5718,5718
PartiesSTATE of Arizona, Appellee, v. John M. WUSSLER, Appellant.
CourtSupreme Court of Arizona

Robert K. Corbin, Atty. Gen. by William J. Schafer III, Diane M. Ramsey, Gerald R Anderson & Schatz by David K. Schatz, Thomas M. Ryan, Chandler, for appellant.

Grant, Asst. Attys. Gen., Phoenix, for appellee.

HOLOHAN, Chief Justice.

Appellant, John Matthew Wussler, was convicted after trial by jury of first-degree murder and first-degree burglary. He was sentenced to life imprisonment for the murder and to a concurrent term of seven years imprisonment for the burglary. This court has jurisdiction of this appeal pursuant to A.R.S. § 13-4031. We affirm.

The essential facts are that the appellant and the victim had both been drinking at the victim's apartment. Later that evening, they argued, and the victim attacked the appellant, beat him, threatened him with a gun, and ordered him out of the apartment. Appellant left the victim's apartment intending to borrow a gun to shoot the victim in retaliation for the victim's abusive behavior.

Appellant returned home where he enlisted his roommate to drive appellant to a friend's house. During the ride, appellant explained to his roommate that he needed to borrow a gun from his friend to shoot someone with whom he had fought. The roommate, upon learning appellant's plan, stopped the car and ordered him to leave the car and walk the remaining distance to the friend's house.

Appellant reached his destination, the home of David Lee Gooch, appellant's codefendant, and asked to borrow a gun to use on the victim. Gooch refused at first, but later agreed to loan a gun to appellant. Gooch drove appellant to a point near the victim's apartment.

Appellant walked the remaining distance to the victim's apartment, looked through the screen door of the apartment, saw the victim who was asleep on the couch, and entered through the unlocked screen door. Gun in hand, appellant approached the couch, and fatally shot the victim. Additional facts will be presented when necessary for consideration of the issues.

Appellant raises four issues on appeal:

(1) Did the trial judge improperly instruct the jury that it could not consider lesser-included offenses until it had reached a unanimous decision on the charged offense?

(2) Did the trial court coerce the jury into returning a verdict?

(3) Did the trial court commit reversible error when it refused to sever appellant's trial from that of his co-defendant?

(4) Did the trial judge commit reversible error when he refused to allow appellant to present evidence of the victim's character?

JURY INSTRUCTION

Appellant argues that the trial court erred when it instructed the jury that it could not consider lesser-included offenses until it acquitted appellant of the charged offense, first-degree murder. The challenged instruction read:

Again, you will only consider the lesser offenses if you determine that the Defendant is not guilty of the greater offense. If you determine that the Defendant, for example, is guilty of first-degree murder you stop right there. It is only if you determine that he is not guilty of first-degree murder that then you will consider second-degree. If you find him guilty of second degree murder you do not concern yourselves with manslaughter.

If you find him not guilty of second degree murder then you will consider manslaughter, whether he is guilty or not guilty of that.

The state points out that at no time did appellant object to the instruction, nor did appellant request a different instruction. In fact, the appellant's requested instructions arguably included an instruction that required the jury to acquit appellant on the In State v. Zaragoza, 135 Ariz. 63, 659 P.2d 22 (1983), we noted our agreement with the United States Supreme Court that " '[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.' " Id. at 66, 659 P.2d at 25, quoting Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203, 212 (1977). If a criminal defendant fails to object to an instruction, then that defendant may not claim error on appeal unless the instruction given amounts to fundamental error. State v. Zaragoza, 135 Ariz. at 66, 659 P.2d at 25; Ariz.R.Crim.P. 21.3(c), 17 A.R.S. Fundamental error is error that "goes to the foundation of the case, or * * * takes from a defendant a right essential to his defense." State v. Mincey, 130 Ariz. 389, 397, 636 P.2d 637, 645 (1981), cert. denied, 455 U.S. 1003, 102 S.Ct. 1638, 71 L.Ed.2d 871 (1982), quoting State v. Pulliam, 87 Ariz. 216, 222, 349 P.2d 781, 785 (1960). We find no such error in the contested instruction.

charged offense before conviction of the lesser included offenses. 1

The appellant urges that the issue be considered because it has not previously been addressed in this state. Citing authority from Oregon and Michigan, 2 appellant contends that the challenged instruction improperly interferes with the jury's deliberations. The state offers contrary authority that supports the instruction as given. An examination of the authorities cited persuades us that the better rule is that which requires the jury to acquit the defendant on the charged offense before considering the lesser-included offenses.

The instruction given closely resembles the instruction suggested in Devitt and Blackmar, Federal Jury Practice and Instructions § 18.05 (3rd ed. 1977). 3 Many jurisdictions have approved the propriety of instructions that require acquittal of the charged offense before the jury considers lesser offenses. See, e.g., United States v. Harvey, 701 F.2d 800 (9th Cir.1983); United States v. Moccia, 681 F.2d 61 (1st Cir.1982); Pharr v. Israel, 629 F.2d 1278 (7th Cir.1980), cert. denied, 449 U.S. 1088, 101 S.Ct. 880, 66 L.Ed.2d 815 (1981); United States v. Hanson, 618 F.2d 1261 (8th Cir.) cert. denied, 449 U.S. 854, 101 S.Ct. 148, 66 L.Ed.2d 67 (1980); Catches v. United States, 582 F.2d 453 (8th Cir.1978); United States v. Tsanas, 572 F.2d 340 (2d Cir.), cert. denied, 435 U.S. 995, 98 S.Ct. 1647, 56 L.Ed.2d 84 (1978); Nell v. State, 642 P.2d 1361 (Alaska App.1982); Stone v. Superior Court, 183 Cal.Rptr. 647, 31 Cal.3d 503, 646 P.2d 809 (1982); Lamar v. State, 243 Ga. 401, 254 S.E.2d 353 (1979); State v. Wilkins, 34 N.C.App. 392, 238 S.E.2d 659 (1977); State v. McNeal, 95 Wis.2d 63, 288 N.W.2d 874 (App.1980). The instruction given in this case and the Oregon/Michigan instruction proposed by appellant each present benefits as well as detriments to the prosecution and defense. See United States v. Tsanas, 572 F.2d at 345-346. We find, however, that the instruction which requires an acquittal of the offense charged before consideration of lesser-included offenses provides for a more logical and orderly process for the guidance of the jury in its deliberations.

COERCED VERDICT

The appellant contends that the trial judge coerced the jury into returning a The parties dispute the circumstances of the trial judge's statement, the state maintaining that it was a statement made to counsel for the defense in response to counsel's question, the defense styling it as an admonition to the jury. In any event the jury began deliberating at 10:40 a.m. and returned their verdicts at 6:15 p.m. They were provided lunch, and there is no suggestion that any attempt was made to hurry their deliberations. If they had not reached a verdict, the jurors were to be allowed to go to their homes and return on Monday for further deliberation. Considering the total circumstances, State v. Roberts, 131 Ariz. 513, 642 P.2d 858 (1982), the remark or admonition of the trial judge was not coercive.

verdict by stating that if they did not return a verdict that Friday by 5:30 or 6:00 p.m., he would require that they recess for the weekend and come back on Monday to continue deliberations.

SEVERANCE

Before and during trial, appellant urged the trial court to sever his trial from Gooch's (codefendant) trial. The trial court denied the severance motions, and appellant assigns as error the failure to sever, arguing that his codefendant's case, which included reputation evidence of appellant's character, so prejudiced appellant's case that appellant was denied a fair trial. The state contends that appellant has not shown prejudice in the joinder of the trials of appellant and his codefendant. The trial court gave a limiting instruction, which the state urges, cured any possible prejudice to appellant.

The issue presented in this appeal was specifically addressed in State v. Cruz, 137 Ariz. 541, 672 P.2d 470 (1983). In discussing when antagonistic defenses create enough prejudice to warrant severance we stated:

[A] defendant seeking severance based on antagonistic defenses must demonstrate that his or her defense is so antagonistic to the co-defendants that the defenses are mutually exclusive. Moreover, defenses are mutually exclusive within the meaning of this rule if the jury, in order to believe the core of the evidence offered on behalf of one defendant, must disbelieve the core of the evidence offered on behalf of the co-defendant.

Id. at 545, 670 P.2d at 474. This approach accomodates the interests of fair trials and judicial economy.

Applying this standard to appellant's case, we do not find the sort of antagonistic defenses that require reversal. The codefendant in his defense sought to show that the statements of appellant that he intended to kill were merely idle boasts. The codefendant and others testified that the appellant was hot tempered and liked to brag.

Both the appellant and the codefendant had given statements to the police which were interlocking. The defense offered by the codefendant was not antagonistic to that of the appellant. The appellant's defense was provocation caused by the...

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