STATE оf Arizona, Appellee, ν. Rebecca B. MADDEN, Appellant.
No. 1745.
Supreme Court of Arizona. In Banc.
Jan. 3, 1969.
449 P.2d 39
Reversed and remanded to the lower court for such further proceedings as are not inconsistent with this decision.
McFARLAND, C. J., and STRUCKMEYER, J., concur.
Lewis, Roca, Scoville, Beauchamp & Linton, by John P. Frank, John J. Flynn, Terry D. Oehler, Paul G. Ulrich, Phoenix, for appellant.
HATHAWAY, Judge, Court of Appeals:
Rebecca B. Madden was charged under
Before setting forth the specific questions presented on this appeal, relating principally to selection of the jury, correctness of instructions, and participation in the proceedings by a judge other than the trial judge, we will briefly review the facts.
In the spring of 1965, the defendant and her husband began having marital difficulties which subsequently resulted in separation and divorce. On March 25, 1966, shortly after the hotly contested divorce trial, Mr. Madden was exercising his visitation rights with their nine-year-old son, Michael. In the late afternoon, prior to his departure for the defendant‘s residence to take Michаel back, he and the defendant had two or three quarrelsome telephone conversations.
The defendant‘s residence was situated in a somewhat remote area near the Superstition Mountains. Before Madden‘s arrival with Michael, the defendant placed her shotgun in the back seat of her car, and drove through and locked the gate to the grounds of the main ranch house. She then drove to the trailer home of Gus Seber, the caretaker, situated a few hundred yards away, and awaited Madden‘s arrival. When Madden drove up to the gate, Michael attempted to open it and found it locked. Madden turned the cаr around and drove to Seber‘s trailer, pulling up behind the defendant‘s car. Seber had spotted Madden‘s vehicle as it arrived at the gate to the main house and had notified the defend-
As Michael got out of his father‘s car, he saw his mother standing by her car with the shotgun in her hand. She told him to go into Seber‘s trailer. He went inside and joined Seber in watching television. Several dogs were running back and forth barking in the trailer. The noise caused by the dogs and the television prevented Seber and Michael from hearing anything from outside. Moments later, the defendant came into the trailеr and told Seber to call the police. He could not find the number and the defendant took the telephone from him. She called the Pinal County Sheriff‘s office, and told the dispatcher:
“This is Mrs. Madden. My husband was trespassing on my property and I just shot him. Will you please send an officer to Meanwhile Ranch.”
A sheriff‘s deputy who knew the dеfendant arrived approximately fifteen minutes later. When he asked her how she was, she responded, “I am sorry I did this.” The deputy saw Madden lying on the couch with a wound in his chest, and called an ambulance. Madden‘s only utterances were pleas for help, requests for water, and statements that he was dying. He gave no details of the shooting. He was alive when placed in the ambulance, but expired enroute to the hospital.
The defendant testified that the shooting was accidental; that her husband grabbed the gun, causing it to discharge; that she had no intention of shooting or killing him.
The defendant initially contends that the systematic exclusion from the jury for cause of all persons who objected to the death penalty deprived her of an impartial jury, and left a group composed of “authoritarian, prosecution-prone” people. In Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), the same argument was made. Because of the death penalty fixed by the jury in Witherspoon, reversal was decreed in view оf the exclusion for cause of veniremen who objected to the death penalty or expressed conscientious or religious scruples against its infliction.
Witherspoon, being a capital punishment case, is inapplicable here, however, as a basis for reversal. Bumper v. State of North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). Witherspoon does, however, meet the defendant‘s argument that a jury so selected must necessarily be biased in favor of conviction.1 The court, in Witherspoon, found that the date submitted by the petitioner was too fragmentary, and would not conclude on the basis of the record or from judicial notice that an unrepresentative jury resulted on the issue of guilty, or that there was a substantial increase in the risk оf conviction. We have reviewed additional material submitted by the defendant and conclude likewise.2
The defendant also complains on appeal that the trial court should not have given the “lying in wait” instruction. The instructions are not set out in the brief as required by
The defendant contends that the court erred in failing to instruct the jury on voluntary and involuntary manslaughter. The сourt is duty-bound to instruct the jury on every degree of homicide embraced in the information and which the evidence suggested may have existed, even though no request has been made therefor.
“1. Voluntary, upon a sudden quarrel or heat of passion.
“2. Involuntary, in the commission of an unlawful act not amounting to a felony, or in the commission of lawful act which might produce death in an unlawful manner, or without due caution or circumspection.”
A.R.S. § 13-456
The defendant related the following account of the shоoting:
“A Two things happened, Mr. Johnson. Number one, I know I pushed the
*
“Q Take your hand down and look at me and tell me what occurred.
“A He said something about, ‘You are bluffing, and I will wrap that gun around your neck,’ and he came at me and grabbed the gun (indicating). It went оff. That‘s all I can say.
“Q Did you pull that trigger?
“A It went off, Mr. Johnson. I didn‘t pull the trigger.
“Q Did you intend to pull the trigger?
“A No, sir.
“Q Now, you say he grabbed the gun?
“A Yes, sir.
“Q Do you know?
“A He pulled it (indicating), he grabbed it and pulled it, pulled it this way (indicating with hands).”
The defendant‘s position was that she did not kill Madden. The defense evidence that she did not intend to kill him precluded the giving of a voluntary manslaughter instruction. Harding v. State, 26 Ariz. 334, 225 P. 482. Nor would the evidence support an instruction on involuntary manslaughter, since the homicidе was not caused, even from the defendant‘s point of view, by her culpable negligence; rather, the shotgun was accidentally discharged when Madden attempted to grab the weapon from her. Since the state of the record was such that the defendant could only be guilty of the crime charged, or not guilty at all, manslaughter instructions were not required.3 State v. Schroeder, 95 Ariz. 255, 389 P.2d 255 (1964); People v. Finch, 213 Cal.App.2d 752, 29 Cal.Rptr. 420 (1963); State v. Callihan, (1967), 11 Ohio App.2d 23, 227 N.E.2d 654; Fleming v. State, Okl. Cr.App., 401 P.2d 997 (1965); Redding v. State, 214 Ga. 524, 106 S.E.2d 5 (1958).
The final question raised concerns the propriety of the taking of the verdict by a judge other than the trial judge. After the matter was submitted to the jury, counsel agreed that a local judge, Judge Mahoney, could take the verdict, and that the trial judge could return to his home in Tucson. Before returning to Tucson, the trial judge, Judge Roylston, conferred with Judge Mahoney concerning the manner in which further proceedings were to be conducted. The jury began its deliberations shortly after five o‘clock on June 28, 1966.
Just after three o‘clock in the afternoon of the 29th, while the jury was still in deliberation, defense counsel obtained permission from Judge Mahoney to call Judge Roylston to determine how long Judge Roylston intended the jury to continue its deliberations. Defense counsel avers, by affidavit, that Judge Roylston gave him the following instructions, which he delivered to Judge Mahoney:
“1. Ask Judge Mahoney to forthwith bring the jury into the courtroom and ask the jury for their opinion аs to whether they could arrive at a verdict.
“2. Under no circumstances was Judge Mahoney to ask how they ‘stood’ numerically.
“3. If, ‘a majority’ of the jury indicated that they could not see any possibility of arriving at a verdict, they were to be immediately discharged and Judge Mahoney was to declare a mistrial.”
“JUDGE MAHONEY: Ladies and gentlemen, will you indicate how you stand one way or the other? Will you indicate to the court whether or not you feel that there is any possibility of arriving at some type of verdict within a reasonable time?
“THE FOREMAN: I don‘t believe so.
“THE COURT: And does anyone object to that? Because of the situation and the length of the trial, the court will request that you do deliberate further. And we will check you a little bit later. So at this time you may be excused. And we will check you in about two hours. Stand at recess.” [Emphasis added.]
Within a short time after they were returned to the jury room, the jury arrived at a verdict of guilty of murder in the second degree.
Defense counsel contends that Judge Mahoney abused his discretion because he departed from the instructions of the trial judge by sending the jury back to deliberate further after it had reported a deadlock. He contends that each of the jurors indicated, by raising his hand, that no verdict was pоssible. Jurors’ affidavits were offered for the purpose of establishing that Judge Mahoney‘s instructions about further deliberation operated to “coerce” the jury to reach a verdict.
We do not believe that Judge Mahoney‘s instruction to the jury to deliberate further had the “blackjack” compulsion that the defendant attributes to it. First, counsel agreed that Judge Mahoney could take the verdict. Second, defense counsel requested that he be permitted to contact Judge Roylston for instructions. Instructions were obtained, and it appears that they were substantially followed. The defendant cannot now claim error, where thе trial court was attempting to comply with defense counsel‘s request to determine whether the jury was hopelessly deadlocked. The judge‘s query, “Whether there is some possibility of arriving at some type of verdict within a reasonable time,” was really the only reason for reconvening the jury. The trial judge did not find the circumstanсes such as to require a new trial. We find no abuse of discretion in his determination, and decline to disturb the trial court‘s ruling. State v. George, 100 Ariz. 350, 414 P.2d 730 (1966); State v. Byrd, 94 Ariz. 139, 382 P.2d 555 (1963).
We find that the trial judge was not called upon to exercise a discretion demanding familiarity with the facts of the case when it sent the jury back to deliberate further. Furthermore, counsel agreed that the verdiсt might be taken by the local judge. We find no prejudice to the defendant in this procedure.
The defendant finally complains that the verdict was not unanimous and offers affidavits of two jurors for the purpose of showing that they did not concur therein. Consideration of these affidavits for purposes of impeaching the verdict is foreclosed. State v. Murphy, 79 Ariz. 161, 285 P.2d 614 (1955). It is contended that Judge Mahoney erred in not polling the jury on his own motion as provided by
In the absence of a request, the court has no duty to poll the jury, Commonwealth v. Patrick, 416 Pa. 437, 206 A.2d 295 (1965); Nance v. State, 210 Tenn. 328, 358 S.W.2d 327 (1962), and failure to poll under such circumstances is not a denial of a constitutional right. People v. Lessard, 58 Cal.2d 447, 25 Cal.Rptr. 78, 375 P.2d 46 (1962). See also Anno. 49 A.L.R.2d 619, cases collected in § 6, pp. 629-634.
Having cаrefully considered the record and the points raised in this appeal, we find no prejudicial error in the proceedings and conclude that the defendant received a fair trial.
The judgment is affirmed.
McFARLAND, C. J., UDALL, V. C. J., and LOCKWOOD, J., concur.
NOTE: Justice STRUCKMEYER having disqualified himself from consideration of this decision, Judge HATHAWAY was designated to act in his stead.
BERNSTEIN, Justice (dissenting).
I regret that I must dissent. Undеr our holdings, instructions on lesser offenses must be given where there is evidence upon which the jury could convict for a lesser offense. In this case, it was error for the trial court to fail to instruct the jury on manslaughter. State v. Schroeder, 95 Ariz. 255, 389 P.2d 255; Singh v. State, 35 Ariz. 432, 280 P. 672.