State v. Zaragoza
Decision Date | 10 January 1983 |
Docket Number | No. 5432,5432 |
Citation | 135 Ariz. 63,659 P.2d 22 |
Parties | STATE of Arizona, Appellee, v. Ruben C. ZARAGOZA, Appellant. |
Court | Arizona Supreme Court |
Robert K. Corbin, Atty. Gen., William J. Schafer III, Chief Counsel, Crim. Div., David R. Cole, Asst. Attys. Gen., Phoenix, for appellee.
Ross P. Lee, Maricopa County Public Defender, Michael G. Sullivan, Deputy Public Defender, Phoenix, for appellant.
On September 28, 1981, a jury found appellant guilty of first degree murder in violation of A.R.S. § 13-1105(A)(2). An aggravation-mitigation hearing was set for October 26, 1981. Because appellant was on probation for a prior aggravated assault conviction at the time of the murder the disposition hearing in connection with the probation revocation was also set for October 26, 1981. At the hearing on October 26 the trial court revoked appellant's probation and sentenced him to 1.875 years in prison for aggravated assault. The court then sentenced appellant to death for the first degree murder. Appellant now challenges the conviction and sentence for murder and the revocation of probation and sentence for aggravated assault. We have jurisdiction to review the conviction of murder and death sentence under Ariz. Const. Art. 6, § 5(3) and A.R.S. § 13-4031. We have jurisdiction to review the revocation of probation and sentence for aggravated assault under Ariz.R.Sup.Ct. 47(e)(5). We affirm.
Winifred Duggan, the victim in this case, was a seventy-eight-year-old woman. A lobotomy had been performed on her sometime in the 1930's and she had limited mental capabilities and was easy to manipulate.
At about 8:30 or 8:45 on the evening of May 26, 1981, appellant and Winifred Duggan were seen in a liquor store near Sixth Avenue and Van Buren in Phoenix. Winifred appeared to be unaware of where she was and appellant was controlling her. Appellant had Winifred's purse and refused to give it to her when she reached for it. Appellant took money out of the purse and bought a can of beer and a pint bottle of white port wine. They then left the store.
Some time between 9:00 and 10:00 that same evening appellant and Winifred approached some people who were drinking beer on the porch of their apartments on Sixth Avenue. Winifred appeared to be nervous or scared and appellant spoke for her whenever she was spoken to. Appellant and Winifred remained there for 15 to 20 minutes. During that time both of them were seen drinking beer.
At 11:10 that night appellant was seen in the alley behind the same apartments on Sixth Avenue. He climbed up on a metal utility box and pulled some clothes off the top of the building across the alley from the apartments. He then threw several objects onto the roof of that building.
The following morning Winifred Duggan's body was found in the alley a short distance from the apartments. The body was naked except for a bra, which had been pushed up exposing her breasts, and a pair of sandals. Winifred Duggan had several head wounds caused by blows from some blunt object. She bled to death as a result of those wounds. She also had a bruise at the back edge of her vagina that was consistent with penetration by a penis or finger. A foreign pubic hair that matched appellant's was found meshed with the victim's own pubic hair.
Police officers found some bloody clothes, two bloody beer bottles and a bloody white port wine bottle on the roof of the building across from the apartments on Sixth Avenue. The bottles also had some white hair stuck to them, and some identifiable latent fingerprints on them. The blood and hair on the bottles matched the victim's and the prints matched appellant's. Appellant's fingerprint was also found on one of three bloody paper bags found near the body.
Appellant was arrested later that morning. He admitted having been with the victim the night before but denied killing her. He was charged with first degree premeditated murder and first degree felony murder alleging that he killed the victim while committing or attempting to commit robbery or sexual assault. At the close of the evidence at trial, the court directed a verdict of acquittal on the premeditated murder charge.
Appellant raises five issues on appeal: (1) whether the trial court erred in failing to instruct the jury on the crime of attempted sexual assault; (2) whether the prosecutor's closing argument was improper; (3) whether Arizona's death penalty statute is unconstitutional; (4) whether the death penalty was properly imposed in this case; and (5) whether the revocation of probation and sentence for aggravated assault was proper.
At appellant's trial the jury was instructed as follows:
These instructions and the order in which they were given conformed perfectly with Recommended Arizona Jury Instructions. See RAJI 11.052 & nn. 1-2; RAJI 14.06. Appellant did not request an instruction defining attempted sexual assault and none was given. Furthermore, appellant did not object to the instructions as given. He now claims that the trial court's failure to instruct the jury on the offense of attempted sexual assault was error requiring reversal.
The United States Supreme Court has stated, "[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." Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203, 212 (1977). If a defendant does not object to a trial court's failure to give an instruction then the defendant may not claim error on appeal unless the failure to instruct rises to the level of fundamental error. State v. Mincey, 130 Ariz. 389, 636 P.2d 637 (1981), cert. denied, 455 U.S. 1003, 102 S.Ct. 1638, 71 L.Ed.2d 871 (1982); State v. Dippre, 121 Ariz. 596, 592 P.2d 1252 (1979); Ariz.R.Crim.P. 21.3(c). Error is fundamental only if it "goes to the foundation of the case, or * * * takes from a defendant a right essential to his defense." State v. Mincey, 130 Ariz. at 397, 636 P.2d at 645 (quoting State v. Pulliam, 87 Ariz. 216, 222, 349 P.2d 781, 785 (1960)).
In the instant case appellant was accused of first degree murder in violation of A.R.S. § 13-1105(A)(2). Section 13-1105(A)(2) provides that one commits first degree murder if one "commits or attempts to commit sexual assault," or other enumerated felonies, and a death is caused. 1 The substance of appellant's argument is that the word "attempts" in § 13-1105(A)(2) means "commits attempt" as defined in A.R.S. § 13-1001. Because the jury was not instructed on § 13-1001 attempt, the argument continues, it was unable to properly determine whether appellant killed the victim while attempting to commit sexual assault. Furthermore, because of the form of the verdict in this case it is not clear whether the jury found a completed sexual assault or merely an attempt. Consequently, appellant concludes, it is possible that the jury found that appellant killed the victim while attempting to commit sexual assault based on an inaccurate understanding of the word "attempt."
It is not immediately apparent from the language of § 13-1105(A)(2) whether the word "attempts" is being used in its ordinary sense or in its § 13-1001 sense. For purposes of the instant case we need not decide. Assuming without deciding that "attempts" is used in its § 13-1001 sense, the failure to instruct on attempt in the instant case was not fundamental error. This is because the ordinary definition of "attempt" and the § 13-1001 definition of "attempt," as applied to this case, are essentially the same. A common definition of attempt is "to make an effort to do, accomplish" something. Webster's Third International Dictionary 140 (1976); see State v. Wilson, 120 Ariz. 72, 74, 584 P.2d 53, 55 (App.1978) (). Under A.R.S. § 13-1001 "attempt" means to do any act toward the commission of a particular crime coupled with the intent to complete the crime. State v. Dale, 121 Ariz. 433, 590 P.2d 1379 (1979). It is difficult to see how something could be an attempt under one definition and not the other. Consequently, this case did not involve "error going to the foundation of the case" nor was appellant "denied a right essential to his defense" by virtue of the fact that the jury was working with the ordinary definition of "attempt" rather than the § 13-1001 definition. There is no danger that the jury found that appellant killed the victim while attempting sexual assault based on an inaccurate definition of the word "attempt." See State v. King, 110 Ariz. 36, 514 P.2d 1032 (1973); State v. McAlvain, 104 Ariz. 445, 454 P.2d 987 (1969); People v. Nelson, 73 Ill.App.3d 593, 29 Ill.Dec. 905, 392 N.E.2d 602 (1979); People v. Thomas, 49 Ill.App.3d 961, 7 Ill.Dec. 480, 364 N.E.2d 641 (1977); People v. Miner, 46 Ill.App.3d 273, 4 Ill.Dec. 766, 360 N.E.2d 1141 (1977); cf. Rizzuto v. State, 407 A.2d 225 (Del.1979) ( ).
Even if the trial court's failure to define attempt had been fundamental error it would have been harmless in the instant case. Error is harmless if there is...
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