STATE of Arizona, Appellee, v. Joseph Edward VAN DYKE, Appellant.
No. 4734.
Supreme Court of Arizona, En Banc.
Oct. 27, 1980.
Rehearing Denied Dec. 16, 1980.
621 P.2d 22
Stephen D. Neely, Pima County Atty. by Kenneth J. Peasley, Deputy County Atty., Tucson, Robert K. Corbin, Atty. Gen. by William J. Schafer, III, and Greg A. McCarthy, Asst. Attys. Gen., Phoenix, for appellee.
Redondo & Sherman, P. C. by James E. Sherman, Tucson, for appellant.
HAYS, Justice.
Appellant Joseph Edward Van Dyke, convicted of two counts of first degree murder and one count of armed burglary, was sentenced to concurrent terms of life imprisonment without possibility of parole for 25 years for each murder count and 5 to 15 years on the burglary count. Taking jurisdiction pursuant to
Over a period of two and one-half years, appellant and Pearl Cumbie enjoyed an on-again, off-again relationship. Appellant on occasion lived with Pearl Cumbie during the last year of their affair but the relationship was a stormy one resulting in frequent fights. During those times appellant would either stay at a room he kept or with friends. On September 13, 1978, following one such incident, appellant was staying at a friend‘s trailer. That evening, after consuming a considerable quantity of beer and taking a number of illicit pills purchased on the street, appellant went to the apartment he shared with Pearl and her 27-year-old son, Richard Waddell, carrying a loaded .30-.30 rifle.
In a statement made to police, appellant said he went to the apartment to scare Pearl into going out with him; however, I Initially, appellant maintains that his armed burglary conviction must be reversed because, as a matter of law, one cannot commit burglary in one‘s own place of residence. We disagree with appellant‘s statement of the law.
While there is support for appellant‘s contention in the common law, see LaFave & Scott, Handbook on Criminal Law 708 (1972), in this state the common law is only viable insofar as it is consistent with statutes enacted in its stead.
We have on many occasions said a breaking or otherwise unlawful entry are not elements of burglary, State v. Pittman, 118 Ariz. 71, 574 P.2d 1290 (1978); State v. Calvery, 117 Ariz. 154, 571 P.2d 300 (1977); State v. Madrid, 113 Ariz. 290, 552 P.2d 451 (1976); In re Appeal in Maricopa Juvenile Action No. J-75755, 111 Ariz. 103, 523 P.2d 1304 (1974); State v. Owen, 94 Ariz. 354, 385 P.2d 227 (1963); State v. Hogue, 15 Ariz.App. 434, 489 P.2d 281 (1971). These Arizona cases clearly establish that even where the physical entry is objectively legitimate, entry will be illegal if the defendant‘s subjective intent is to commit a felony. Walking into an open telephone booth,
We think the jury was properly instructed on burglary and there is evidence to support the jury‘s verdict.
II
Appellant next contends the failure to instruct the jury that a gun must be pointed in a threatening manner in order to constitute assault with a deadly weapon is reversible error. We disagree.
In order to establish its felony-murder theory by way of the armed burglary count, the state introduced evidence that the crime appellant intended to commit upon entry was, among others, assault with a deadly weapon. The instruction relating to assault with a deadly weapon included language that it is sufficient to merely point a deadly weapon at a victim to constitute the crime. Appellant‘s position is that the weapon must be pointed in a threatening manner. Our search of the authorities, including those cited by appellant, do not support his contention.
We note at the outset that no objection was raised at trial with respect to this instruction. As we have said before, absent fundamental error, in order to preserve an objection to a proposed instruction on appeal, counsel must object at trial and state with particularity the grounds of the objection.
Moreover, Arizona authority is quite clear “[t]here is no question but what the pointing of a loaded pistol at another . . . is an assault with a deadly weapon.” State v. Gortarez, 103 Ariz. 395, 396, 442 P.2d 842, 843 (1968). There is no requirement that the weapon must be pointed in a threatening manner. State v. Bustamonte, 122 Ariz. 105, 593 P.2d 659 (1979); State v. Gordon, 120 Ariz. 172, 584 P.2d 1163 (1978); State v. Duncan, 105 Ariz. 426, 466 P.2d 380 (1970).
In the case at bar the relevant inquiry is not what appellant in fact did with the rifle but what he intended to do. By his own admission appellant went to the apartment to scare Pearl into going out with him. The fact he intended to do so with a loaded rifle supports the armed burglary conviction.
III
Appellant next alleges the jury should not have been instructed concerning a stipulation that the death penalty would not be sought regardless of the verdict.
Before trial the parties stipulated that no matter what the outcome of the case, the death penalty would not be sought. It was also “STIPULATED AND AGREED by and between the parties herein that at the time of trial, the jury shall be instructed that irrespective of the verdict, the Defendant will not be subject to the death penalty.”
During jury selection the panel was informed that if defendant was convicted of a crime carrying the possibility of a death sentence, none would be sought. There was no defense objection. At the close of the prosecution‘s case-in-chief, several stipulations were read to the jury including the death penalty stipulation. Again, there was no defense objection. While settling instructions, the state proposed an instruction which recited the death penalty stipulation and also directed the jury not to consider punishment in reaching a verdict. This time the defense objected, claiming the stipulation had already been fulfilled.
It is true a defendant is entitled to a jury verdict based on the evidence and without regard to the possible punishment, State v. Burnetts, 80 Ariz. 208, 295 P.2d 377 (1956), but here, by agreement of the parties, the jury was informed that no death sentence would be rendered. It was not only proper according to the very terms of the stipulation to “instruct” the jury but
The jury was properly instructed.
IV
Appellant next argues he was denied a fair trial because the rule excluding witnesses from the courtroom was invoked and a witness admitted discussing his testimony with another person.
When Detective George Olsen of the Tucson Police Department took the stand the following colloquy occurred:
Q Do you recall assisting Mr. Van Dyke in any way walking down from where he was seated to another location?
A Well, I believe Mr. Sherman had asked me this in a pre-trial interview and I didn‘t recall helping him. I still don‘t recall helping him, but Detective Martin in talking to him today indicated to me I did have a hold of his arm walking him down to the car.
It is appellant‘s contention that when the two detectives discussed the testimony they violated the court‘s order precluding witnesses from communicating with each other.
Our rule excluding witnesses from the courtroom when not testifying,
Prior to or during any proceeding the court may, and at the request of either party shall, exclude prospective witnesses from the courtroom and direct them not to communicate with each other until all have testified. (Emphasis added).
Since Detective Martin was neither disclosed as a possible witness at trial nor called as a witness to testify, it does not appear to us the rule was violated.
V
In “Appellant‘s Supplement to Appeal,” appellant maintains that he never had an initial appearance on the armed burglary charge. The allegation appears from the record to be true; however, we see no prejudice nor do we see error demanding reversal.
The purpose of an initial appearance is to get a person who has been arrested before a magistrate “without unnecessary delay,”
Here, appellant had an initial appearance which informed him of the first degree murder charges underlying his arrest. A complaint was subsequently filed containing the charges revealed at the initial appearance plus the armed burglary count. The complaint was available in sufficient time to afford appellant an opportunity to challenge each count at the preliminary hearing. We find no error.
Having reviewed the record for fundamental error and finding none,
CAMERON and GORDON, JJ., concur.
HOLOHAN, Vice Chief Justice (dissenting):
The court today holds that a man can be guilty of burglary of his own home. This novel principle comes about according to the majority opinion, because of the wording of the burglary statute. If that is what the law means, one cannot help but agree
The majority ignores the long-standing principle that statutes should be construed to avoid an absurd conclusion or result, and the majority must admit that their construction of the burglary statute results in an absurd conclusion and result. No attempt is made by the majority to give the statute a sensible construction as an appellate court should. See Arnold Const. Co., Inc. v. Arizona Board of Regents, 109 Ariz. 495, 521 P.2d 1229 (1973); Mendelsohn v. Superior Court, 76 Ariz. 163, 261 P.2d 983 (1953).
Today‘s decision is in sharp contrast with our decision in State v. Billhymer, 114 Ariz. 390, 561 P.2d 311 (1977), in which we construed a section of the old criminal code
STRUCKMEYER, Chief Justice (dissenting):
I concur in the dissent of Vice Chief Justice Holohan.