[105 Ariz. 191] Gary K. Nelson, Atty. Gen., Carl Waag, Asst. Atty. Gen., for appellee.
Wilson, Compton & Egan, by William M. Egan, Flagstaff, for appellant.
Mary Jane Brady, hereinafter referred to as defendant, was charged in Coconino County with the crime of murder in the first degree; was tried on two counts in the killing of William Kent Mackelprang and Anthony Mackelprang, hereinafter referred to as Kent and Tony or the decedents. She was tried and convicted on both counts of second-degree murder, and sentenced to serve not less than ten nor more than twenty years in the Arizona State Prison on each of the counts; the sentence under Count II to run consecutively with the sentence on Count I. From the judgment and sentence of the court she appeals.
Defendant was single, thirty-four years of age at the time of the trial, weighed around 110 or 115 pounds, and was born in New York. She had completed high school, had come to Arizona in 1955, and attended the University of Arizona for practically one semester. After leaving school she had been employed in various capacities, including waitress work, 'work with race horses, and wrangling dudes.' She worked with race horses in the year 1956, and it was at the race track in 1957 in Kanab, Utah, that she met William J. Mackelprang, the father of Kent and Tony, the deceased brothers.
She entered into a contract with William J. Mackelprang to run his ranches--one in Utah, and one in Arizona; the one in Utah being located at Johnson Canyon, and the other was the Mackelprang allotment in House Rock Valley, the latter being referred to as the Bean Hole Ranch. She started to live at the Bean Hole Ranch exclusively in 1962. During this time she became acquainted with the deceased brothers, Kent and Tony. Her agreement called for payment in shares of the father's livestock (cattle, horses, and sheep) for her services as foreman.
The father at a later date had turned the ranch over to Kent, but testified that he did not Give it to his son. The father testified that the reason for turning the ranch over to Kent was that he had been told that Jeff, an older son who had purchased the Utah property from his father, was going to sue him and his wife for the amount due on a mortgage on the property at the time of the sale--that it was for this reason that he had conveyed the property to Kent with the understanding that Kent would, upon request, reconvey the property to him. He testified that he had conveyed forty acres of State-leased land at the Arizona ranch to defendant, and that he had also transferred to her some of the livestock.
There had been some misunderstandings and arguments between defendant, Kent, Tony, and the family in regard to the refusal of Kent to reconvey the property. The father stated that he had gone to an attorney in regard to getting the property [105 Ariz. 192]
reconveyed. The defendant had been given notice by an attorney for Kent to vacate the property, and had received eviction papers before the incident of the killing.
According to the testimony, on January 1, 1968, Kent, Tony and their families, started from Page to the Bean Hole Ranch for the purpose of feeding the cattle some hay. It was in Northern Arizona about 160 miles north of Flagstaff on the North Rim of the Grand Canyon, and cold, with approximately a foot and a half of snow on the ground. They turned around and left the children with Joyce, Tony's wife, and thereafter the three of them--Kent, Tony, and Jean (Kent's wife)--went to the ranch. There was contradictory testimony as to what happened when they arrived at the ranch. Defendant testified that she shot the two brothers because she was 'scared.' She testified of prior difficulty and prior threats, and her testimony in regard to threats was corroborated in part by testimony of the father.
The incidents of the threats were described as occurring in December and on July 4th previous to the happening on January 1st. Present at the July incident were the father, Jean, Kent, Tony, Joyce, and the defendant. There had been some drinking, and defendant referred to the father as the 'old man,' at which time Tony whirled and said: 'You call my father an old man, I am going to kill you, you son of a bitch.' Defendant testified that Tony then grabbed her with both hands and started choking her. In regard to the December incident, defendant testified that Kent, Tony, and Jean were at the ranch when Kent threatened her and gave her until the following Friday at sundown to get off the ranch--that Tony had told her that if she didn't get off they were going to donate a plot for her for her own--that Jean had also entered into the conversation but had merely repeated what Tony and Kent had said. It was on that evening that she stated she wrote a letter and will which were later introduced in evidence. In the letter which was sent to her sister she stated that she had twelve years' wages coming and 'I'll be damned if I'll give it to a couple of cattle rustlers without a fight.' Then the letter described her version of the December incident she had testified to in her appearance in court.
In her testimony Jean Mackelprang supported the State's theory of the case that defendant was guilty of the charge of murdering Kent and Tony, and described in detail how defendant had shot them without provocation while they were feeding the cattle. Defendant's version was that she shot them 'because she was scared.' The evidence showed that neither of the decedents was armed, or that they attempted in any way to use a gun. The defendant, after the incident, drove to Flagstaff, throwing the gun out at the crossing on leaving the ranch, and gave herself up in Flagstaff. Jean managed to walk out to the highway from the ranch, caught a ride, and told of the killing. Officers of Coconino County were notified.
Defendant presented four questions in which she contends the court erred during the trial and in the sentence. One, the court erred in admitting the rifle used in the killing in evidence, stating that it was an admission on the part of the defendant made prior to being 'advised of her rights pursuant to the Miranda warning.' Second, the court erred in allowing the State to introduce color slides--that such pictures emphasized the blood to excite the passion and prejudice of the jury. Third, the trial court erred in failing to instruct the jury on voluntary and involuntary manslaughter. Fourth, the sentence was excessive, and therefore in violation of defendant's constitutional rights.
The court based its ruling upon the admissibility of the rifle on two separate findings. First, as stated:
'However, to reiterate the finding of the Court heretofore expressed, the Court does again make a specific finding that the statement of the accused to the arresting officer reference Exhibit 27 was completely spontaneous and volunteered[105 Ariz. 193]
and is not within the restrictions of Miranda.
'Further, that the statement is under our historical requirements of voluntariness a completely voluntary statement.'
This finding of the court is supported by the evidence, and in accordance with the holdings of this Court in State v. Franklin, 104 Ariz. 324, 452 P.2d 498. When the defendant first went to Flagstaff she testified that she visited several bars. The arresting officer, Joe Garcia, Deputy Sheriff, testified:
'Q And then what happened?
'A So I left the Rose Tree Bar. I was going to check Club 66 and it was closed, so I was looking at the pickup very fine, the description and the license. About that time, Miss Brady come around the corner and approached me.
'Q And then what happened?
'A She asked me something to the effect like 'I guess you're looking for the driver of this vehicle?' I said, 'Yes, we are,' and she says, 'Well, you've found her. I'm the one you want.'
'Q What did you do then?
'A I said, 'All right, put your hands on the wall,' which she did. My first concern was they had told me she was armed. I didn't know what with, whether it was a pistol, knife or what. I didn't know.
'She had a loose fitting jacket, so I checked in the pockets for weapons first. At that time she said, 'If you're looking for the rifle,' I believe, or the 'gun, I threw it by the cattle guard by where it happened.' I said, 'Ma'am, you're under arrest for homicide. Please don't say anything to me at all because anything you say to me will be held against you in a Court of law.'
'Q Was Deputy Parker present when this happened?
'Q How close was she to you when she first spoke to you?
'A Just the width of the sidewalk, whatever it is; three or four feet, I guess.
'Q When was it that you placed her under arrest with the words 'You're under arrest?'
'A Just shortly after I told her to put her hands on the wall.
'Q Was it before or after the statement that she made?
'A It was almost simultaneously, about the time I started to say, 'You're under arrest.'
'Q You indicated you were searching her for weapons?
At no time in the testimony did defendant deny the statement made by the officer. She testified in her direct testimony:
'Q What were you drinking at the El Patio Bar?
'A I believe whiskey.
'Q What did you do after that?
'A Well, I--after I had been in there, I decided I was going to come up to the jail house, started down the street, and I was pretty well lit by then, went across the street over--I guess it's the 66 that's on that corner. I decided I'd have me one more drink before I come up. I walked in there and had a drink and I came back to the door. I looked across the ...