Petition — Mincey v. Arizona

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IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1977

No. 7% -53 53

RECEIVED

AUG 2 9 1977

OFFICE OF THE CLERA

SUPREME COURT, U.S.

RUFUS JUNIOR MINCEY, Petitioner,

Vv.

STATE OF ARIZONA, Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT

OF THE STATE OF ARIZONA

Richard Oseran

16 BOLDING, OSERAN & ZAVALA

P. O. Box 70

La Placita Village

Tucson, Arizona 85702

19 Frederick S. Klein

Law Offices of Klein & Klein

20 Suite 306, 100 North Stone Avenue

Tucson, Arizona 85701

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Attorneys for Petitioner

22 || August 26, 1977

65702 (602) 684 7100

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IN THE SUPREME COURT OF THE UNITED STATES QUESTIONS PRESENTED

October Term, 1977 | l. Did not the admission of evidence obtained in a four-day+

long warrantless search of Petitioner's apartment after the apart-

NO. ment had been secured by police violate Petitioner's rights under

the Fourth and Fourteenth Amendments to the Constitution?

RUFUS JUNIOR MINCEY, Petitioner 2. Did not the admission of Petitioner's responses to police

e. questioning made while Petitioner was a patient in the intensive

STATE OF ARIZONA, Respondent. care unit of a hospital violate Petitioner's privilege against

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self-incrimination, and rights to counsel and due process of law

PETITION FOR A WRIT OF CERTIORARI under the Fifth, Sixth and Fourteenth Amendments to the constitution?

TO THE SUPREME COURT CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

OF THE STATE OF ARIZONA The principal United States Constitutional provisions in-

volved are the Search and Seizure Clause of the Fourth Amendment,

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The Petitioner, RUFUS JUNIOR MINCEY, respectfully prays that Self-Incrimination Clause of the Fifth Amendment, Right to Counsel

a Writ of Certiorari issue to review the judgment and opinion of Clause of the Sixth Amendment and Due Process Clause of the Four-

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the Supreme Court of the State of Arizona entered in this case on teenth Amendment, the pertinent texts of which are as follows:

May 11, 1977, and made final by the order of the Supreme Court of Amendment IV:

"The right of the people to be secure in their

persons, houses, papers, and effects, against un-

reasonable searches and seizures, shall not be vio-

lated, and no Warrants shall issue, but upon probe-

ble cause, supported by Oath or affirmation, and

particularly describing the place to be searched,

21 and the persons or things to be seized."

the State of Arizona, denying both parties’ motions for rehearing

entered on June 28, 1977.

OPINION BELOW

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The opinion of the Supreme Court of the State of Arizona,

filed May 11, 1977, is reported at Ariz. , 566 P.2a 273, 7 Amendment V:

"No person .. . shall be compelled in any

and is attached hereto as Appendix A. criminal case to be a witness against himself... ."

JURISDICTION | ; 24 || Amendment VI:

"In all criminal prosecutions, the accused shall .

enjoy the right . .. to have the Assistance of

Counsel for his defense."

The judgment of the Supreme Court of the State of Arizona 25

was entered on May ll, 1977. A timely motiamfor rehearing was 26

denied on June 28, 1977, and this petition for certiorari was filed 27 || amendment XIV, Section I:

"(NJor shall any State deprive any person of life,

90) a of that date. This Court's jurisdiction is 28

ee eter liberty, or property, without due processof law. . . s*

. . . 1257 3 °

invoked under 28 U.S.C. § (3) STATEMENT OF THE CASE

' Arrest and Search

This Petition arises out of an incident in Tucson, Arizona,

a ee Le ee a Se Cane ne nn en

on October 28, 1974, in which an undercover police narcotics officer

1 1 || three wounded apartment occupants and Officer Headricks were tra: :-

2 || was mortally wounded. At approximately 2:00 p.m., on that date, 211 ported to the hospital, and the two remaininy occupants of the apart-

3 || undercover officer Barry Headricks went to an apartment leased by 31 ment were arrested ané taken tyey.

4 Petitioner, Rufus Mincey, accompanied by Charles Ferguson. officer 4 After the shootings, the narcotics officers did no investigatitgs

5 Headricks wore longish hair, a mustache, a flower print shist, 5 || they secured the scene, but waited for a special investigative

6 || cowboy boots, levis and a levi jacket to hide his true identity as 6 || team of police to arrive. The investigating officers searched

7 \| a police officer. After being admitted into the apartment, an ‘91 the premises and examined the scene over = four day sbeteé.. Shar

g || offer to sell narcotics allegedly was made for which Petitioner and 8 | started by “looking for narcotics paraphenalia" and in the course

g || Charles Ferguson were later charged. Headricks then left the apartr Ol of their search learned that Officer Neadricks hed died of his

10 || ment with the purported purpose of returning with money to pay for 10 || gunshot wounds. Investigators searched every room, every drawer

2 drugs. and every cupboard in the apartment, inventorying the entire con-

22 12 Headricks returned to the apartment with nine other plain i 18 1 cents of the apartment. Officers remained on duty, inl tenet Obes

rt } 13 || caothes officers and a deputy county attorney; they intended to g 13 premises secure until the search was completed. wo aaeitali tiiemaaell

a8 14 || enter the apartment by a ruse and thereafter to arrest the occupant ef 141 was chtained, and no reason was ettebed Gee Wot codhing cum. A

ys 15 of the apartment and seize any evidence. Headricks and another i 15 variety of evidence used inthe subsequent subcesetion was

5 16 || officer went to the apartment door with drawn guns hidden behind NET ctmelinnt ue 6 euasin ot te cue.

a 17 || their backs. The remaining officers and a deputy county attorney 501 ccduineitiidin

a5 1g || hid in the hallway on either side of the door with their guns a 18 Shortly after the shooting incident, while Petitioner was

<2 19 || drawn as well. The door was opened by John Hodgman. $219] in the hospital emergency room, police Detective Hust arrived

. <3 20 After Officer Headricks slipped into the apartment, Hodgman 4 <3 20! at the hospital and removed the handcuffs from him in order to

; rE Ra attempted to close the door, but the remaining officers forced : ae 21] sacilitate treatment by the medical staff. Mr. Mincey's condition :

22 || the door back, pushing Hodgman partly through the wall behine the 22 | at that time wae described as near to the point of coma and he was

=| door. Headricks entered the bedroom at the back of the apartment 23 breathing insufficiently. ‘Three or four hours later, following |

a and shortly thereafter some thirteen shots were heard in rapid 24 surgery, Detective Hust obtained permission from a nurse te |

25 || succession coming from the bedroom. In the gunfire, Officer Head- 25 | interrogate Petitioner, who was then in the hospital's intensive |

26 || ricks and the two bedroom occupants, Mr. Mincey and Deborah Johnson) OB edi okt |

27 || were wounded. Charles Ferguson was also wounded by a bullet which 27 Mr. Mincey was unable to talk at the time of the interrogation |

28 || passed through the bedroom wall. Once the shooting stopped, 28 | aue to the presence of a tracheal tube inserted down his throat |

29 Headricks came out of the bedroom, said something like “he's down", 291 to administer oxygen. He also had a Foley catheter tube inserted

30 || and fell to the ground. Mr. Mincey was found lying on his back in 30] through his penis to his bladder, a tube running from his nose

31 | the bedroom, unconscious. 311] gown into his stomach to prevent the aspiration of vomit, and was |

32 The entire incident transpired in a matter of seconds. nas 32 | receiving intravenous fluids. In addition to oxygen and intravenous

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fluids, Mr. Mincey had received antibiotic and antitetanus drugs.

Mr. Mincey, being unable to talk, responded to Detective Hust’

questions by writing his answers on paper provided by the hospital.

Detective Hust did not record the questions he asked, but at a4

later date attempted to reconstruct the questions from Mr. Mincey's

written responses and notes made by the detective the following

morning. The interrogations lasted about one hour. The detective

twice stopped the questioning when Mr. Mincey either fell asleep

or lapsed into unconsciousness Or was sO exhausted as to be unable

to continue, resuming the questioning after a brief pause. Mr.

Mincey's confused state of mind is illustrated by the fact that

he was not sure whether the same person had conducted the various

sessions of questioning.

The detective began the questioning by asking Mr. Mincey to

supply information that would help in locating the family of anothe

wounded suspect. The nurse who had authorized the questioning

and who had been told that Mr. Mincey was charged with murdering

a police officer, told Mr. Mincey that it would help if he cooper~

ated with Detective Hust's questioning. Thereafter, the detective

advised Mr. Mincey that he was charged with killing a police office

and advised him of his constitutional rights. Mr. Mincey then

advised the detective that he could say no more without an attorney

present. The detective continued the questioning despite this and

despite some six other requests for an attorney.

During the course of the interrogation, Mr. Mincey twice

informed the detective that he was in unbearable pain and several

times expressed doubt about his ability to accurately recall what

had occurred. The nurse testified that Mr. Mincey had been unable

to sleep since the time he entered the intensive care unit, and

that she was unsure whether he was under the influence of drugs

at the time.

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Trial and Appeal

At the time of trial, Petitioner, Rufus Mincey, was a twenty-

three year old United States Air Force machinist who, prior to

the aforementioned incident, had never been charged with a felony.

Petitioner was charged with, tried by a jury, and convicted of

first degree felony murder (committed in avoiding or preventing

a lawful arrest), Ariz. Rev. Stat. Ann. §§13-451, -452 and -453,

assault with a deadly weapon, Ariz. Rev. Stat. Ann. §13-249(B),

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unlawful sale of narcotics, Ariz. Rev. Stat. Ann. §36-1002.02,

unlawful possession of a narcotic drug for sale, Ariz. Rev. Stat.

Ann. §36-1002.01, and unlawful possession of a narcotic drug, Ariz.

Rev. Stat. Ann. §36-1002. He was sentenced to life imprisonment

without possibility of parole before serving twenty-five years on

the first charge; ten to fifteen years imprisonment on the second,

concurrent with the first; five to fifteen years imprisonment on

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the third, consecutive to the life sentence; five to six years

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imprisonment on the fourth, concurrent with the third, and two to

three years imprisonment on the fifth charge, concurrent with the

third.

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At trial, Mr. Mincey's attorney moved to suppress the evidence

per

seized in the search of Mr. Mincey's apartment. The motion was

denied.

Mr. Mincey's attorney also moved to suppress the state-

ments made during Mr. Mincey's hospital interrogation. That motion

was granted. However, over Petitioner's objection, the trial court

allowed the statements made during his interrogation to be used to

impeach his testimony at trial.

On appeal, the Arizona Supreme Court reversed Petitioner's

convictions for murder and assault with a deadly weapon because of

an erroneous mens rea instruction, and remanded the remaining

counts, sentences for which had originally been designed to run

consecutively to the life sentence on the murder charge, for

resentencing. The Arizona Supreme Court, however, held that the

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evidence obtained in the search and interrogation here challenged

was properly admitted. The court found that the search of

Petitioner's apartment did not come within the exigent circumstances

exception to the warrant requirement, but held that it was justi-

' fied by a "murder scene exception", discussed in more detail

hereafter. In so doing, the court expressly refused to follow the

decision of the United States Court of Appeals for the Ninth Circui

in Sample v. Eyman, 469 F.2d 819 (9th Cir. 1972). Further, the

court held that Petitioner's responses during his in-hospital

interrogation were voluntarily made and, therefore, were properly

admitted for impeachment under Harris v. New York, 401 U.S. 222

(1971). Both Petitioner and Respondent timely moved for rehearing

of the Arizona Supreme Court's opinion. Both motions were denied

on June 28, 1977.

ARGUMENT

ARGUMENT I

THE ADMISSION OF EVIDENCE OBTAINED INA

FOUR DAY WARRANTLESS SEARCH OF PETITIONER'S

APARTMENT AFTER THE APARTMENT HAD BEEN SECURED

BY POLICE VIOLATED PETITIONER'S RIGHTS UNDER

THE FOURTH AND FOURTEENTH AMENDMENTS TO THE

CONSTITUTION.

The Arizona Supreme Court upheld the admission of evidence

which was the fruit of the warrantless, four day search of Mr.

Mincey's apartment. That court ruled the evidence admissible

under a state court created "murder scene exception", a warrant-

less search is lawful where (1) the search occurs at the scene

of a serious personal injury with likelihood of death, (2) there

is reason to suspect foul play, (3) law enforcement officers

were legally on the scene premises in the first instance, (4)

the search begins within a reasonable time after officials first

learn of the murder or potential murder, and (5) the search is

"limited [in scope] to determining the circumstances of death”.

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State v. Mincey, Ariz. , 566 P.2d 273, 283 (1977), slip

opinion at 23. The Court conceded that the search of Mr. Mincey's

apartment did not "fit within the usual ‘exigent circumstances’

exception and that there was ample time to secure a warrant".

Id., slip opinion at 22. Thus, if the Fourth Amendment does not

countenance Arizona's “murder scene exception", the search here

was unlawful and the evidence seized therein should have been

excluded. Mapp v. Ohio, 367 U.S. 643 (1961).

The United States Court of Appeals for the Ninth Circuit has

held the application of Arizona's "murder scene exception" contrary

to the dictates of the Fourth Amendment. Sample v. Eyman, 469

F.2d 819 (9th Cir. 1972). And the Arizona Supreme Court expressly

refused to follow the holding of the Ninth Circuit. State v-

Mincey, Ariz. , 566 P.2d 273, 283 & 283 n.4 (1977),

slip opinion at 22 and 22 n.4. Thus, unless this Court grants

certiorari, one rule of law will govern Arizona defendants who

are able to obtain review of their convictions by the Federal

Courts, and another will govern Arizona defendants who are denied

Federal review under Stone v. Powell, 428 U.S. 465 (1976).

A cogent summary of the principles governing availability of

exceptions to the search and seizure warrant requirement appears

in Coolidge v. New Hampshire.

"(T]he most basic constitutional rule in

this area is that ‘searches conducted outside wa

judicial process, without prior approval by

judge or magistrate, are se unreasonable

under the Fourth Amendment--subject only to

a few specifically established and well

delineated exceptions'. The exceptions are

‘jealously and carefully drawn', and there must

be 'a showing by those who seek exemption

. . . that the exigencies of the situation

made that course imperative’. ‘(T]he burden

is on those seeking the exemption to show the

need for it'". Coolidge v. New shire, 403

u.S. 443, 454-55 T1371) Fic wetees omitted).

See also, Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).

Again, this Court recently refused to expand the number and scope

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of exceptions to the warrant requirement in United States v.

Chadwick, 97 S.Ct. 2476 (1977), where the government sought

to expand the automobile exception. The principles there reinforced

are important to Mr. Mincey's case.

"(T]he Fourth Amendment ‘protects people,

not places .. .;' more particularly,

it protects people from unreasonable, government

intrusions into their legitimate expectations

of privacy." 97 S.Ct. at 2481 (citation

omitted).

"The judicial warrant has a significant

role to play in that it provides the detached

scrutiny of a neutral magistrate, which is

a more reliable safeguard against improper

searches than the hurried judgment of a law

enforcement officer ‘engaged in the often

competitive enterprise of ferreting out crime. '

. . . Once a lawful search has begun, it is

also far more likely that it will not exceed

proper bounds when it is done pursuant to a

judicial authorization ‘particularly describing

the place to be searched and the persons or

things to be seized.‘ Further, a warrant

assures the individual whose property is searched

or seized of the lawful authority of the executing

officer, his need to search, and the limits of

his power to search." 97 S.Ct. at 2482

(citation omitted).

"Even though on this record the issuance of

a warrant by a judicial officer was reasonably

predictable, a line must be drawn. In our view,

when no exigency is shown to support the need

for an immediate search, the Warrant Clause

places the line a the point where the property

to be searched comes under the exclusive dominion

of police authority." 97 S.Ct. at 2486.

Here, the search was of Mr. Mincey‘s residence, where an

individual's reasonable expectation of privacy has probably received

the longest and most consistent Fourth Amendment protection. The

degree of intrusion is manifested by the fact that the search ex-

tended over a four day period and included inventorying every item

in Mr. Mincey's apartment. Every room, drawer, cupboard, nook and

cranny was searched.

The search was remote from and not incident to an arrest withis

the meaning of Chimel v. California, 395 U.S. 752 (1969). It was

not justified by any exigent circumstances making the obtaining

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of a warrant impractical. Indeed, in Arizona, such circumstances

are rare since a judicial warrant may be obtained at any hour of

the day or night by telephonic communication. 5 Ariz. Rev. Stat.

Ann. §13-1444(c) (Supp. 1973). The searched premises were placed

under the exclusive dominion of police authority prior to the com-

mencement of the search.

Further, in this case, the Arizona Supreme Court offers no

explanation of the rationale for permitting a "murder scene excepti¢n"

and none is provided in State ex rel. Berger v. Superior Court,

110 Ariz. 281, 517 P.2d 1277 (1974). Indeed, the only explanation

ever offered by the Arizona Supreme Court for creating such an

exception was the argument that such warrantless searches were

justified by the "need for all citizens and particularly potential

victims such as this to effective protection from crime". State

v. Sample, 107 Ariz. 407, 410, 489 P.2d 44, 47 (1971), writ of

habeas corpus ordered conditionally granted, sub nom. Sample v.

Eyman, 469 F.2d 819 (9th Cir. 1972); see State v. Duke, 110 Ariz.

320, 324,518 P.2da 570, 574 (1974).

The Arizona Supreme Court has simply made an arbitrary deter-

mination that cases involving bodily injury are more serious than

other cases and require less attention to the protection of in-

dividual rights. If Arizona can make such a determination now, teh

in the future it or other jurisdictions can abolish the search

warrant requirement in cases of rape, espionage, treason, extortion)

kidnapping, terrorism, arson, counterfeiting, robbery and burglary,

each of which is a class of crimes posing serious threats to eT:

Who is to say which class of crimes is most serious? The

argument that more “effec ive" protection from crime is needed is

an argument which may be made against every restraint the Constitu-

tion imposes upon police authority in the interest of personal libetty

Moreover, the Arizona Supreme Court has never shown, and it could

not show, how its proposed exception to the warrant requirement would

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significantly increase police protection over that permitted by the ol <he Deurth Geebteeeen. She extinees Chie Gicind Coes tet

traditional exigent circumstances exception. search should have been suppressed.

The "murder scene exception” is not a doctrine permitting

police entry upon premises. It is a doctrine permitting warranties$

searches. In fact, it effectively abrogates any warrant requirement ARGUMENT II

for a particular class of criminal investigations. Rather than THE ADMISSION OF PETITIONER'S RESPONSES

TO POLICE QUESTIONING MADE WHILE PETITIONER

WAS A PATIENT IN THE INTENSIVE CARE UNIT

OF A HOSPITAL VIOLATED HIS PRIVILEGE

AGAINST SELF-INCRIMINATION, AND RIGHTS TO

COUNSEL AND DUE PROCESS OF LAW UNDER THE

FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO

| THE CONSTITUTION.

encouraging determinations by a neutral, detached magistrate of the

reasonableness of a search, Arizona's rule promotes searches based

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solely upon a police officer's perception of what is "a serious

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personal injury” and of whether "there is reason to suspect foul

The use of Mr. Mincey's responses to police questioning while

play". There is not even a probable cause requirement. The

in the hospital's intensive care unit violated his privilege against

reasons for the search do not have to be explained in advance; they

self-incrimination, and rights to counsel and due process of law

can be reconstructed with the benefit of hindsight.

under the Fifth, Sixth and Fourteenth Amendments to the Constitutioar.

In some instances, courts have spoken about murder scene

The trial court and the Arizona Supreme Court found the responses

exceptions to warrant requirements when their intent was to authorize

to have been obtained in violation of Miranda v. Arizona, 384 U.S.

police to enter premises with the intent of rendering emergency

436 (1964), but sustained their admissibility as within the exception

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aid. See Root v. Gauper, 438 F.2d 361, 364-65 (8th Cir. 1971).

created by Harris v. New York, 401 U.S. 222 (1971). Harris and

Even if such had been a consideration in the development of the

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the decisions which have followed it permit an accused person to

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Arizona doctrine, the police here did not enter with the intent of

be impeached’ with Miranda violative statements if (1) the statements

rendering aid to an injured person. They entered with the intent 3 <3 20

soc are inconsistent with the accused's testimony at trial bearing

of making arrests. The search itself occurred after the injured z o< 21

= directly on the crime charged, and (2) the statements were obtained

people had been removed from the premises. 22

under circumstances assuring their trustworthiness and voluntariness.

The police in Mr. Mincey's case knew before the search began 23 is |

The statements in the.case at benth meet neither requirement.

that Officer Headricks' injuries had resulted from gunshot wounds. 24 3

The responses used for ‘impeachment were not inconsistent with

The search, therefore, was not conducted in aid of treatment, as 25

Mr. Mincey's testimony at trial. Petitioner testified that he had

for example might be the case in a poisoning incident. 26

seen a gun in Officer Headricks' hand when Headricks entered the

Arizona's rule places no genuine limitations on the scope of 27

bedroom. As impeachment, the prosecution offered a statement made

searches. Although the rule purports to limit searches to what is 28 |

in response to a question which asked, did "this guy" who came into

necessary to determine the circumstances of death, here a four day 29

long complete inventory of Mr. Mincey's home was held to come within 30 | 1 B.g., Oregon v. Haas, 420 U.S. 714 (1975).

that limitation. 31] 2 Arizona permits prior inconsistent statements to be considered

by the jury as substantive evidence. State v. Skinner, 110 Ariz.

The search in this case violated the spirit, purpose and letter 32 135, 515 P.2a 880 (1973).

ee |

1 || the bedroom have a gun? The response had been, “I can't say for 1 || his responses to the in-hospital interrogation failed to meet

2]| sure. Maybe he had a gun," and Petitioner indicated that he 2 traditional standards of trustworthiness and voluntariness. The

3 | hadn't been sure whether by "this guy” the interrogator had meant 3 | statements made in the intensive care unit of the hospital were

4 || Headricks or the officer who found him after he'd been shot, or what. 4 || the direct result of an overborne will. The circumstances under

5 Mr. Mincey also testified that at the time Officer Headricks 5 || which the statements were made are undisputed.

6 || entered the bedroom with his drawn gun, he had no idea the entry 6 At times during the interrogation, Mr. Mincey looked exhausted

7 || was for purposes of making an arrest. The prosecutor offered a 7 \\ to his interrogator. He had not slept for some time, and at least

8 || statement made in response to a question regarding what Mr. Mincey 8 | -wice during the interrogation he lapsed into unconsciousness.

9 || had meant when he wrote that “all hell turned loose". Petitioner's 9 | when a person is fatigued, his will is more easily overborne. E.g.|

10 response, given at a time when he had already been informed that 10 Ashcraft v. Tennessee, 327 U.S. 274 (1946), connected case 322

11 || he was under arrest and being charged with the purder of a police ll ii y.s. 143 (1944).

; 12 || officer, was that he meant when the “bust” took place. That 12 Petitioner indicated repeatedly that he wished the questioning

5 13 | response simply indicated that several hours after Headricks enter 13 || siscontinued, and requested the aid of counsel seven times. The

his bedroom, and after Mr. Mincey had been made aware that Headrick failure to inform a suspect of his right to counsel is a "significagt

and his companions were police officers, and after Mr. Mincey had factor" in determining the voluntariness of a statement. E.g.,

been advised that he was under arrest and was being charged with Davis v. North Carolina, 384 U.S. 737, 740 (1966). Even more

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murder of a police officer, Mr. Mincey knew that the commotion intimidating is the effect of having one's requests for counsel

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had resulted from a police "bust"; it did not indicate what his and that questioning be stopped repeatedly denied, frustrated or

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knowledge or state of mind was at the time of the break-in. ignored. See, e.g., Culombe v. Connecticut, 367 U.S. 566 (1961).

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: < 20 The rationale for permitting an exception to the Miranda ex- ; z0 It is further uncontested that the interrogation took place

5 2 21 | clusionary rule is that the shield provided by Miranda should not : a only about four hours after the Petitioner was received in surgery

22 || be perverted into a license to testify inconsistently or perjuriously ee for his gunshot wound. He could not speak. The only sustenance

23 | mnat rationale becomes meaningless if the statements introduced 25 | enat Mr. Mincey was receiving was through intravenous feeding. The

24 | to impeach are not in fact inconsistent. Furthermore, as this 24 lack of substantial food diminishes one's physical strength and

25 || court has recognized, it is basic to the law of evidence that befor 25 ability to resist. E.g., Davis v. North Carolina, 384 U.S. 737,

26 | a prior statement can be used to impeach by inconsistency, the 26 746 (1966).

27 || statement must indeed be inconsistent. United States v-. Hale, 422 27 Petitioner was being given oxygen through an oral tracheal

28 || y.s. 171 (1975). And a witness must be given full opportunity to 28 tube, a method generally used only for patients in critical

29 clarify his statement before impeachment testimony may be admitted. 29 condition. He had a nasal gastric tube running from his nose to

50 || The Charles Morgan, 115 U.S. 69 (1885). Neither criterion was 30 his stomach to prevent him from aspirating vomit, and Petitioner

$1 | met in this case. 31 was catheterized. Mr. Mincey indicated that he was in pain and

Whether or not Mr. Mincey's testimony at trial was inconsistent, 32 that the pain was unbearable. Such intense pain also diminishes the

| ability to resist. E.g., Reck v. Pate, 367 U.S. 433, 441-42 (1961);

It must be emphasized that all we can be sure of are the

The only persons who had access to the Petitioner were the Petitioner's protestations and statements, since they were written

out. There are no equally accurate records of what questions were

Mr. Mincey's well being was entrusted, encouraged him to respond asked

to Detective Hust's questioning. Isolation from one's friends

| police and hospital personnel. Nurse Graham, in whose hands 3

“

5 It should also be noted that the trial court here never made

and from counsel has been consistently recognized by this Court as a finding that the statements admitted against Mr. Mincey were

an important factor to be considered in determining voluntariness. " voluntary, in contravention of Jackson v. Denno, 378 U.S. 368 (1964}.

E.g., Sims v. Georgia, 389 U.S. 404 (1967); Haynes v- Washington, 8

Since Mr. Mincey's hospital interrogation statements do not

373 U.S. 503 (1963); Pikes v. Alabama, 352 U.S. 191 (1957).

meet the test of Harris, they should have been suppressed.

10 Petitioner expressed uncertainty as to his ability to accurately 10

ll || recall the facts. He had received numerous drugs in an effort to 11

12 | stabilize his condition. Nurse Graham was unsure whether Petitionef 12 CONCLUSISS

was under the influence of drugs at the time of the interrogation. For the foregoing reasons, a writ of certiorari should issue

Statements made under the influence of drugs do not meet traditiona} to review the judgmentand opinion of the Supreme Court of the

standards of voluntariness. Cf., Townsend v. Sain, 372 U.S. 293 State of Arizona.

ARIZONA 85702 (602) 884-7100

RESPECTFULLY SUBMITTED this Z@ day of August

(1963).

Petitioner's lack of experience with the police is yet another

factor to be considered in determining voluntariness. E.g., Haley

LAPLACITAVELAGE = SUITE 402 TOLUCA BUILDING

P. 0. Box 70

La Placita Village

Tucson, Az. 85702

Attorneys for Petitioner

v. Ohio, 332 U.S. 596 (1948).

Mr. Mincey was helpless. He could not walk away from the poli¢e

ZAVALA 0 80x 70 TUCSON, ARIZONA 85702 (602) 684-7100

OSERAN iAriacitTAViLAGE SUITE 402 TOLUCA BULDING

officer or even turn his back on him. He could not even speak to

ZAVALA © 80x 70 TUCSON.

LAW OFFICES

OSERAN

KLEIN & KLEIN

tell him to leave. He could only communicate by laborious writing. 22

ric .

00 N. Stone Ave.,

cson, Az. 85701

Attorneys for Petitioner

23 | wis strength was sapped by serious injury and surgery. He was in 23 Suite 306

| pain, weak and confused. He asked for counsel and to be left 24

| alone, but no one complied; no one came to his aid, not even the 25

one person he should have been able to turn to, his nurse. The 26

| questioning continued, unrelenting and without regard to his: pleas 27

| to stop or for counsel. The police officer would not leave Mr. 28

| Mincey alone until he received the statements he was seeking. 29

Clearly, Petitioner's will was overborne. The above-described 30

| factors cannot be considered circumstances assuring the voluntarine

—— sa

or trustworthiness of his statements. 32

IN THE SUPREME COURT OF THE STATE OF ARIZONA

In Banc

STATE OF ARIZONA, )

) MAY 1 1 1977

Appellee, )

) CLERK SUPREME COURT

v. ») No. 3283 |,

) ——— |

RUFUS JUNIOR MINCEY, )

)

Appellant. )

)

Appeal from the Superior Court of Pima County

(Cause No. A-26666)

The Honorable Mary Anne Richey, Judge

Affirmed in Part and Reversed and Remanded in Part

GORDON,

Bruce E. Babbitt Phoenix

Attorney General

Heather A. Sigworth Tucson

Assistant Attorney General

Attorneys for Appellee

Rabinovitz, Minker & Dix, P.C. Tucson

By Albert Perry Dover

Bolding, Oseran & Zavala Tucson

By Richard S. Oseran

Attorneys for Appellant

Justice:

Appellant, Rufus Mincey, was convicted in a jury trial

of murder, first degree, in violation of A.R.S. §§ 13-

451, 13-452 and 13-453, assault with a deadly weapon in

violation of A.R.S. § 13-249 B, unlawful sale of narcotics

in violation of A.R.S. § 13-1002.02, unlawful possession of

narcotic drug for sale in violation of A.R.S. § 36-1002.01,

and unlawful possession of narcotic drug in violation of

A.R.S. § 36-1002. He was sentenced to serve a term of life

without possibility of parole until twenty-five year@ are

served for Count I; to serve not less than ten nor more

than fifteen years for Count II, to run concurrently with

the life sentence; to serve not less than five years nor

more than fifteen years for Count III, to run consecutively

to the life sentence; to serve not less than five years

nor more than six years for Count IV, to run concurrently

with Count III; to serve not less than two years nor more

than three years for Count V to run concurrently with Count

III. We have jurisdiction to review this judgment under

A.R.S. § 13-1711. The judgment of the trial court is re-

versed and remanded as to Counts I and II; judgment is af-

firmed as to Counts III, IV and V but remanded for resentencing.

This appeal arose out of a tragic incident in Tucson,

Arizona on October 28, 1974. It began with a planned "buy-

bust" by the Metropolitan Area Narcotics Squad, based origi-

nally on information from an informant. Although the testi-

mony conflicts in some areas, on appeal we view the evidence

in the light most favorable to upholding the verdict. The

facts for the purpose of this appeal are as follows:

. ag

Sometime around 2 p.m. on October 28, 1974 undercover

agent Barry Headricks of the Metropolitan Area Narcotics

Squad went to the apartment leased by appellant. Accompany~

ing Headricks was Charles Ferguson, the victim in the assault

with a deadly weapon charge. Headricks, according to testi-

mony, looked like a typical undercover narcotics officer:

mustache and longish hair, cowboy boots, levis and a levi

jacket. He also had an electronic monitering device 80

that the other agents could overhear what went on.

After Headricks and Ferguson were admitted, a deal

was made for the sale of a specified amount of narcotics

and both appellant and Ferguson were charged with this

sale. While in the apartment Headricks saw a gun in the

possession of another man (probably Ferguson) in appellant's

apartment. (Also in the apartment was appellant's girl-

friend. When the agents returned later there were two more

people in the apartment.) Headricks then left the apartment

with the purported purpose of returning with the money to

pay for the drugs. Actually Headricks met 4 fellow agent

and they and eight other officers prepared to carry out the

prearranged plan to consummate the "buy-bust”.

Headricks and another agent (Schwartz), purportedly

his "money man", went up to the door of the apartment with

drawn guns hidden behind their backs. Eight other agents

and a deputy county attorney were to be waiting with drawn

guns out of sight of the doorway; in fact John Hodgman, who

opened the door, apparently saw the other agents and tried

to close the door. Headricks knocked onthe door and when

the door opened he announced that it was the police, according

to one officer's testimony. Hodgman tried to close the door

as Headricks slipped into the apartment. Agent Schwartz

prevented the door from closing and he and other agents

forced entry. As the door was forced back, Hodgman was

pushed partly through the wall behind the door. Schwartz

1/ A “buy-bust" occurs when the undercover agent or agents

make contact with a person who allegedly has illegal drugs

for sale and make an offer to buy. If the agent sees the

drugs or has enough information to be sure that the person

does have the drugs, then an arrest is made. Commonly, at

here, the plan is for the agent to leave momentarily and

then a number of agents will come back to make the arrests.

The usual plan is for the original undercover agent to get

the door opened using his undercover identity and then the

rest of the agents rush in.

and at least one other agent held Hodgman to the ground and

handcuffed him. Schwartz pointed his gun at a woman who was

in the room and told her “police, freeze". Moments later

another agent pointed his gun at her and, in more obscene

terms, told her to freeze or he'd blow her head off. At some

time during these occurrences, 4 number of shots in rapid

succession could be heard coming from the bedroom at the

back of the apartment which Headricks had entered. It was

later shown that both men emptied their guns shooting at

each other. (One bullet, later shown to be from appellant's.

gun, came through the wall and grazed Ferguson's head where

he was being held at gunpoint against the wall by another

agent. Both men went down to the floor. This incident was

the basis of the assault with a deadly weapon charge.) Shortly

after the shooting stopped, Headricks came out of the bedroom,

said something like “he's down,” and fell to the ground. Some

agents ran to Headricks to give aid and someone called for

emergency assistance. Meanwhile Agent Fuller went to the

bedroom door and yelled "police officer, freeze” or “come

. ~" or something of that nature. Fuller testified that he

saw a movement on the other side of the bed and then nothing

more. Fuller and another agent entered the room, proceeding

along the side walls. Fuller saw a woman lying on 4 closet

floor and asked her if she was all right. When she said no —

he told her to stay there and help would come soon. Fuller

then crawled across the bed and found appellant lying on

-5-

~~ eee _—

his back on the far side of the bed, with no visible wounds

and with an automatic pistol under his hand. Appellant

failed to respond to speech or to being prodded with Fuller's

pistol. When the agents tried to move Mincey they saw blood

underneath him and so they left him there until the ambulance

came.

No weapons other than the pistol found near appellant's

hand were found on any of the suspects. That weapon, 4 Llama

380 semi-automatic, was found to be empty when one of the

agents examined it. Three other weapons were found in the

living room during a subsequent search. Headricks' police

special .38 revolver was also empty and was later shown to

be the weapon which made those bullet holes not shown to

have been caused by appellant's gun. When Headricks was taken

out on a stretcher, a small semi-automatic pistol was found

on the floor under where his body had been. Testimony at

trial speculated that he had been carrying this second pistol

in his belt at his back as is a common practice among under-

cover narcotics agents. The presence of the fourth pistol

was not explained at trial, but it apparently had not been

recently fired.

After the shootings, the narcotics agents did no

investigating but waited for a special investigative team

in accordance with Tucson Police Department procedure. The

investigating officers searched the ovenises and examined

the scene over a period of four days. No search warrant

ee ey ee meee + ee ee ee

-_- et at cee apne ape lO cme eomammpay, - o

was obtained and no reason appears for not seeking one. Al-

though no witness was absolutely sure, the officers apparently

learned of Headricks' death after the search of the scene

began.

Three or four hours after appellant arrived at the

hospital emergency room, Officer Hunt interrogated him in

the intensive care unit. Appellant was being fed intraven-

ously, had a tube down his throat giving him oxygen to help

him breathe, a tube in his nose down into his stomach to

keep him from vomiting, and a catheter tube to his bladder.

A nurse in the intensive care unit allowed the police officer

to question appellant although appellant was unable to talk

and had to answer by writing notes. Some of these answers

were used in an attempt to impeach appellant by prior incon-

sistent statements at trial. Appellant was in pain but there

is no evidence that he was sufficiently under the influence

of medication to render his statements involuntary and inad-

missible.

The interrogation began with questions concerning

another wounded suspect. Then appellant learned he was

charged with killing a police officer and was given his

Miranda rights. The trial court granted appellant's motion

to suppress this interview as to its use in the prosecution's

case in chief but allowed its use for impeachment purposes.

The intercogation lasted about one hour but the officer

twice stopped the questioning when appellant either fell

asleep or lapsed into unconsciousness.

On November 1, 1974 appellant was charged in a five-

count indictment and on June 12, 1975 a jury returned guilty

verdicts on all five counts. Appellant's motions for acquittal

notwithstanding the verdict and for a new trial were denied

and sentence was imposed on July 15, 1975. Thereafter ap-

pellant filed a timely notice of appeal to this Court.

Appellant raises a number of issues which we have re-

arranged and reworded so as to deal with them more concisely:

1. Did the jury instructions present an incorrect mens __

rea requirement for murder “committed in avoiding or preventing

lawful arrest" ( A.R.S. § 13-452), thereby compelling reversal?

2. Was it reversible error to permit the state to im-

peach appellant with statements made by him while he was in

the hospital intensive care unit?

3. Was it reversible error to admit evidence that

appellant had falsified information on the federal firearms

form for appellant's pistol?

4. Was it reversible error to admit statements made

by appellant two and one-half months before the incident?

5. Was it reversible error to deny defendant's motion

to suppress on the basis of an illegal entry in violation of

A.R.S. § 13-1411?

6. Was it reversible error to deny appellant's motion

to suppress on the basis of an illegal warrantless search?

7. Was it reversible error to deny appellant's motion

to sever the murder count from the other counts in the indict-

ment?

8. Was the prosecutor's conduct in closing arg.ment

so inflammatory as to deny appellant a fair trial?

Mens Rea for the Murder Charge

Appellant was charged with murder "which is committed

in avoiding or preventing lawful arrest", A.R.S. § 13-452.

He.alleges error in terms of the propriety of certain jury

instructions but the underlying issue concerns the mens rea

required for this kind of murder. This is an issue of first

impression before our Court.

One challenged instruction reads:

"If a person has knowledge, or by the

exercise of reasonable care should have

knowledge, that he is being arrested

by a peace officer, it is the duty of

such a person to refrain from using

force (or any weapon) to resist such

arrest.

"However, if you find that the peace

officer used excessive force in making

the arrest, it is not the duty of such

person to refrain from using reasonable

force to defend himself against the use

of such excessive force." (Emphasis added.)

The other challenged instruction reads:

"A person who knows or has reason to know

that he is being illegally arrested may

use such force, short of taking life,

as is necessary to regain his liberty.

A person resisting an illegal arrest

may use only that force reasonably neces-

sary to effect that purpose.

"A person who knows_or has reason to know

that he is being lawfully arrested has a

duty to refrain from using any force to

resist arrest." (Emphasis added.)

We agree that these instructions do not present the

proper mens rea or scienter requirement for this kind of

first degree murder. The provision of A.R.S. § 13-452 under

which appellant was charged does not expressly provide a

scienter requirement. The rule, barring a few exceptions, is

that wrongful intent or mens rea is required before there can

be criminal punishment. State v. Cutshaw, 7 Ariz.App. 210,

437 P.2d 962 (1968); Dennis v. United States, 341 U.S. 494,

71 $.Ct. 857, 95 L.Ed. 1137 (1951). The exceptions occur

only when the legislative power has expressly so determined,

as where criminal negligence takes the place of the intent

requirement. State v. Chalmers, 100 Ariz. 70, 411 P.2d 448

(1966). Where the penal statute fails to expressly state

the necessary element of scienter, this Court may infer the

scienter requirement from the words of the statute plus legis-

lative intent. State v. Berry, 101 Ariz. 310, 419 P.2d 337

(1966).

We hold that the scienter requirement for first degree

murder “which is committed in avoiding or preventing lawful

arrest," A.R.S. § 13-452, ite knowledge that the victim was a

law enforcement officer. That is, a defendant is guilty under

§ 13-452 if the murder is committed while knowingly avoiding

or preventing a lawful arrest. This holding is based on the

words of the statute and the legislative intent.

The words of this provision are similar to A.R.S. §

13-541 A, Resisting, delaying, coercing or obstructing public

officer. This statute uses both the terms "wilfully" and

"knowingly" in various provisions. We agree with the Court

of Appeals that § 13-541 requives knowledge on the part of

the defendant that the other person is a public officer. State

v. Tages, 10 Ariz.App. 127, 457 P.2d 289 (1969). It is logical

to assume the Legislature intended a similar knowledge require-

ment in § 13-452.

Even more pesounetes ie the fact that we are dealing

with a first degree murder statute which carries the most

drastic penalty in our system of criminal justice -- death.

Such a penalty has traditionally required criminal intent

as the mens rea, and a lesser mental state such as criminal

negligence is covered in a manslaughter statute. E.g., A.R.S.

§ 13-456. Our statute defining first degree murder, K.AR.S.

§ 13-452, was amended in 1973 to add the avoiding or preventing

lawful arrest provision. Preceeding this provision is the pro-

vision for wilful, deliberate or premeditated killing and fol-

lowing it is the felony murder provision. The first provision

by its terms requires scienter, and the felony murder provision

requires an intent to commit the underlying felony. State v.

Akins, 94 Ariz. 263, 383 P.2d 180 (1963).

In this context the Legislature would not have intended

the death penalty for a negligent killing nor would they have

intended strict liability for killing a police officer even

where the facts otherwise objectively show justifiable homi-

cide. A knowledge requirement for first degree murder com-

mitted in avoiding or preventing a lawful arrest is mandated.

In fact, the jury was given a proper instruction be-

cause the trial court modified the state's requested jury in-

struction by adding the word "“knowingly:"

"A murder which is perpetrated by lying

in wait or by any other kind of wilful,

deliberate and premeditated killing, or

which is perpetrated in knowingly avoiding

a lawful arrest is murder in the first

degree." (Emphasis added.)

So the issue is analogous to our recent decision in State v.

Rodriguez, ___Ariz. ___, 560 P.2d 1238 (1977): conflicting

jury instructions were given concerning the intent or mens

tea necessary for conviction.

In Rodriguez we concluded under the facts of that case

that the incorrect instruction was not so prejudicial as tc

require reversal. Two crucial facts in this determination

were that other than the reading of the instructions, the

incorrect instruction was never mentioned to the jury and

that the correct intent requirement was "brought home force-

fully to the jury in closing arguments no less than six times."

State v. Rodriguez, ___ Ariz. at ___, 560 P.2d at 1241.

The situation was exactly the opposite at appellant's

trial. In closing argument the prosecutor emphasized the

incorrect instruction, discussing it at least twelve times.

The case went to the jury on an alternative theory of neg-

ligence ("knew or by exercise of reasonable care should have

known"). Under these circumstances we have no way of knowing

on what basis the jur determined appellant's guilt. Conviction

under the avoiding arrest section of A.R.S. § 13-452 requires

that the jury find the defendant acted knowingly. The jury

here could have rendered a guilty verdict on the basis of

negligence rather than knowledge.

For the foregoing reasons, we find the giving of the

challenged instructions was prejudicial and reversible error.

Accordingly, the judgment of the trial court as to Count I

(murder, first degree) is reversed. Because the convictton

on Count II (assault with a deadly weapon) may involve the

same issues discussed supra, the judgment as to Count Il

is also reversed.

Statements in Intensive Care Unit

Under the circumstances described, supra, appellant

was interrogated while in the Intensive Care Unit of the

University of Arizona Hospital. Miranda warnings were

given, but after each indication from appellant that he

wanted to consult an attorney or that he wanted to stop

answering questions, the police officer continued to question

appellant.

The United States Supreme Court held in Miranda v.

Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694

(1966) that police must cease questioning when the suspect

indicates he wishes to assert his right to remain silent or

his right to an attorney. This mandate was recently affirmed

in Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d

313 (1975) and Oregon v. Haas, 420 U.S. 714, 95 S.Ct. 1215,

43 L.Ed.2d 570 (1975); cf. Brewer v. Williams, No. 74-1263

(U.S., Mar. 23, 1977). Statements made in violation of

this rule are not admissible in the prosecution's case in

chief but may be used for impeachment purposes (if the

defendant takes the stand at trial) so long as traditional

standards of voluntariness and trustworthiness are met. Oregon

v. Haas, supra; Harris v. New York, 401 U.S. 222, 91 §.Ct.

643, 28 L.Ed.2d 1 (1971).

Prior to trial appellant made a motion to suppress

the statements he made while being interrogated at the hos-

pital, arguing their inadmissibility for all purposes because

of violations of the requirement of Miranda and because of

lack of voluntariness. A hearing was held as required by

2/ Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d

94 (1966).

State v. Owen, 96 Ariz. 274, 394 P.2d 206 (1964), and testi-

mony and oral ergument were heard by the trial court. The

court granted appellant's motion as to use of the statements

in the prosecution's case in chief but denied the motion as

to use for impeachment purposes.

The court did not make a specific finding as to the

voluntariness of the statements. In 1964 the United States

supreme Court held that before a confession can be admitted

into evidence, the trial judge must hold a hearing outside

the presence of the jury and make a clear finding of volun-

tariness. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774,

12 L.Ed.2d 908 (1964). Since then this Court has consistently

held that failure to make a definite ruling on voluntariness

before admission requires either a remand for the trial court

to make such a finding or teversal unless the admission of

the evidence itself was harmless error. State v. Marovich,

109 Ariz. 45, 504 P.2d 1268 (1973). This rule applies here

because for the purposes of compliance with Jackson v. Denno,

supra, there is no difference between confessions and admissions.

State v. Owen, supra.

We stated in Marovich, supra, in dictum that denial

of a motion to suppress could be tantamount to a finding of

voluntariness where it is clear the trial court understood

Jackson v. Denno and merely worded the ruling badly. We

believe such a situation occurred here. Under the circumstances

of this case, it is clear that a finding of voluntariness under-

lies the trial court's ruling and therefore the lack of auch

a specific finding is not reversible error.

In this case the prosecutor told the trial court that

he did not intend to use these statements in his case in

chief, and so his only argument at the hearing was that the

statements were voluntary and admissible for impeachment

purposes. The United States Supreme Court rule described

supra is that to be admitted for impeachment purposes state-

ments which violated Miranda must pass traditional voluntari-

ness and trustworthiness standards. In the context of this

case, the trial court's decision to exclude the statements

in question for purposes of the prosecution's case in chief

but to admit them for impeachment purposes can be based only

on an underlying decision that tne statements violate Miranda

but do not offend traditional st ndards of voluntariness.

We hold the failure to make specific findings, although error,

is not reversible error under the specific circumstances

of this case.

In addition to the problem of the lack of a specific

finding of voluntariness appellant urges this Court to find

reversible error because the statements were not in fact

voluntary. It is well settled that the trial court's deter-

mination of the admissibility of a defendant's statement will

not be overturned unless clear and manifest error appears.

E.g. State v. Edwards, 111 Ariz. 357, 529 P.2d 1174 (1975).

We look to the totality of the circumstances to decide if

the statements were properly admitted. State v. Miller, 110

Ariz. 597, 522 P.2d 23, cert. denied, 419 U.S. 1004, 95 S.Ct 325,

42 L.Ed.2d 281 (1974). The evidence in this case is suf-

ficient to support the determination of the trial court.

eee eee ——™” ee 7

There was testimony that the nurse in the intensive

care unit gave the police officer permission to interrogate

appellant and that she was present during the interrogation.

She testified that she had not given appellant any medication

and that appellant was alert and able to understand the officer's

questions. She also testified that neither mental or physical

force nor abuse was used on appellant. She said that appellant

was in moderate pain_but was very cooperative with everyone.

The interrogating officer also testified that appellant did

not appear to be under the influence of drugs and that ap- 3/

pellant's answers were generally responsive to the questions.

The officer testified that he used no force or coercion, neither

mental or physical. Nor were any promises made. On the ba-

sis of this testimony the admission of the statements for

impeachment purposes was hot azn abuse of discretion.

Appellant also makes some arguments concerning whether

the impeaching statements are sharply contradictory to his

testimony. These arguments go to the weight and not the ad-

missibility of the evidence.

For the foregoing reasons we uphold the trial court's

determination of the admissibility for impeachment purposes

3/ We might add at this point the fact that appellant was able

to write his answers in a legible and fairly sensible fashion

provides further support for the trial court's determination.

elfe

of appellant's statements made while in the hospital.

Admission of Federal Firearms Form

Appellant argues that admission of the federal firearms

form on which he falsely denied he was a heroin addict is

improper and inadmissible impeachment by prior misconduct

and is irrelevant as well. Appellant admits in his brief,

however, that it would be admissible to show intent, citing

State v. Schmid, 107 Ariz. 191, 484 P.2d 187 (1971). It

would also be admissible, of course, to impeach appellant

by a prior inconsistent statement. Both of these bases for

admission apply here and the evidence is, therefore, relevant

also.

One aspect of the prosecution's case was to attempt to

show that appellant had been planning to shoot any police

officer who might "hassle" him, thereby negating appellant's

self-defense claim. Appellant testified that he thought he

had purchased the pistol used in the shooting some three

or four weeks prior to the time he had actually purchased

it. The implication of that part of his testimony was that

the gun had been purchased with no specific purpose. The

firearm form was introduced to show that it had been purchased

very shortly before the shooting. Cross-examination of ap-

pellant also brought out the fact that appellant felt he

would be unable to purchase a gun legally unless he lied about

being a heroin addict. It is clear that admission of the

firearms form is relevant both to the intent issue and to

contradict appellant as to date of purchase, and it was ad-

mitted for these purposes.

Appellant also argues that even if this evidence is

admissible, it is so highly prejudicial that its admission

is reversible error. State v. Little, 87 Ariz. 295, 350

P.2d 756 (1960). The evidence here, however, is not highly

prejudicial. The jury already knew that appellant was a

heroin addict because of his testimony. Evidence of falsi-

fication of a federal firearms form is not sufficiently

prejudicial to render inadmissible evidence admissible on

two other valid grounds. The admission of this evidence

was proper.

Statements Made Two and One Half Months Earlier

Appellant challenges the admission of a witness'

testimony concerning a conversation which occurred two

and one half months prior to the shooting. The witness

testified that appellant said he planned to buy 4 sawed-

off shotgun in case anyone hassled him or in case the pigs

hassled him. Appellant, citing Wigmore on Evidence, §§

394-396, argues that this statement concerning his mental

state is inadmissible because (1) it is not a threat against

a specific class, (2) there is no showing of a continuing

mental state until the time of the shooting, and (3) the

shooting incident was not a manifestation of the statement.

The statement in question can reasonably be interpreted

as a threat against a specific class: police. Appellant

does not argue there is any ambiguity in the meaning of the

term "pigs". That people in general were also included does

not take away from the specificity of "pigs".

It is well settled that remoteness in time does not con-

trol admissibility of such evidence but rather is a factor

to be considered by the jury in determining the weight of

the evidence. Sparks v. State, 19 Ariz. 455, 171 P. 1182

(1918); State v. Moore, 111 Ariz. 355, 529 P.2d 1172 (1974).

It is impossible to set definitive guidelines as to the time

limits for evidence of a continuing state of mind. In State

v. Moore, supra, we upheld admission of two statements made

eighteen months and one year prior to the incident at issue.

The time period here is, of course, much less remote and

admission of the statement was proper. It is within the

jury's province to determine the weight of such evidence.

Similarly, so long as it is a reasonable inference,

it is within the jury's province to decide if the shooting

incident is a manifestation of the earlier statement. In

this case one reasonable inference from the evidence is

that the shooting was a manifestation of appellant's earlier

statement. The fact that belief in appellant's defense theory

would lead one to the opposite inference does not create re-

versible error or, indeed, any error at all.

Appellant raises some other points but they all go to

the weight of the evidence and that is not an issue on appeal.

We hold the admission of the prior statement proper.

A.R.S. § 13-1411

Appellant argues that the arrest was illegel due to

noncompliance with A.R.S. § 13-1411 and therefore his motion

to suppress all evidence should have been granted. A.R.S. §

13-1411 provides:

"§ 13-1411. Right of officer to break

into building

"An officer, in order to make an arrest

either by virtue of a warrant, or when

authorized to make such arrest for a felony

without a warrant, as provided in § 13-1403,

may break open a door or window of any building

in which the person to be arrested is or is

reasonably believed to be, if the officer is

refused admittance after he has announced his

authority and purpose."

There was sufficient evidence for the trial court to

find that A.R.S. § 13-1411 had been complied with. One officer

testified that he heard Officer Headricks say police or some-

thing like that when the door was first opened. There was

also testimony that at least one other officer announced his

authority during the time the officers were trying to push

open the door after it had been almost shut. Under all the

circumstances of this case there can be no doubt rhat the

person answering the door, when told it was the police, also

knew their purpose. If one is in the midst of a drug buy,

when the buyer announces that he is 4 police officer, his

purpose is hard to misconstrue.

-21-

Appellant also discusses Headricks' entry into ap-

pellant's bedroom. That entry is relevant to the self-

defense issue but not to A.R.S. § 13-1411 which deals only

with breaking into a building not with actions after entry.

We uphold the trial court's denial of the motion to

suppress regarding A.R.S. § 13-1411.

Warrantless Search

Appellant argues that the warrantless search of his

apartment was illegal in violation of the Fourth Amendment

of the United States Constitution. He alleges--correctly

--that there were not sufficient facts to fit within the

usual "exigent circumstances" exception and that there was

ample time to secure a warrant. Thus the issue is whether

this Court will adhere to its previous rulings which hold

the search of a murder scene under certain circumstances

to be a valid exception to the constitutional warrant re-

quirement. State v. Sample, 107 Ariz. 407, 489 P.2d 44

(1971); State v. Superior Court, 110 Ariz. 281, 517 P.2d

4/ The United States Court of Appeals for the Ninth Circuit

disagreed, Sample v. Eyeman, 469 F.2d 819 (9th Cir. 1972).

There are, however, a number of other jurisdictions with some

sort of murder scene exception: e.g., Stevens v. State, 443

P.2d 600 (Alaska 1968), cert. denied, 393 U.S. 1039, 89 S.Ct.

662, L.Ed.2d (1989) ; People v. Wallace, 31 Cal.App. 3d

865, 107 Cal. Rptr. 659 (1973); Patrick v. State, 227 A.2d

486 (Del. 1967); State v. Chapman, 250 A.2d 203 (Me. 1969);

State v. Oakes, 276 A.2d 18 (Vt.), cert. denied, 404 U.S.

965, 92 S.Ct. 340, 30 L.Ed.2d 285 (1971); Longuest v. State,

495 P.2d 575 (Wyo.), cert. denied, 409 U.S. 1006, 93 S.Ct.

438, 34 L.Ed.2d 299 (1972). Contra, People v. Williams, 557

P.2d 404 (Colo. 1976). The United States Supreme Court has

not disapproved of any of these decisions.

-22-

1277 (1974); State v. Duke, 110 Ariz. 320, §18 P.2d 570 (1974).

After reviewing this issue we are reaffirming our rule.

We will set some guidelines, however, because we support the

principle that "[s]earches conducted without a warrant issued

upon probable cause are ‘per se unreasonable * * * subject only

to a few specifically established and well-delineated exceptions. '

Schneckloth v. Bustamonte, 412 U.S. 218 at 219, 93 S.Ct. 2041,

at 2043, 36 L.Ed.2d 854, at 858 (1973)."" State v. Sardo, 112

Ariz. 509, 543 P.2d 1138 (1975). With the guidelines, intra,

in this opinion, search of a murder scene is such a “specifically

established and well-delineated exception.”

We hold a reasonable, warrantless search of the scene of

a homicide -- or of a serious personal injury with likeli-

hood of death where there is reason to suspect foul play --

does not violate the Fourth Amendment to the United States

Constitution where the law enforcement officers were legally

on the premises in the first instance. We chose not to limit

this warrant requirement exception only to actual murders be-

cause immediate action may be important to determining the

circumstances of death and because a4 reasonable search should

not later be invalidated because the intended murder victim

may be saved by a medical miracle. For the search to be rea~

sonable, the purpose must be limited to determining the cir-

cumstances of death and the scope must not exceed that purpose.

The search must also begin within a reasonable period following

the time when the officials first learn of the murder (or po-

tential murder). Cf. State v. Duke, supra.

-23-

We find the search of appellant's apartment falls

within the murder scene exception to the Fourth Amendment

warrant requirement. Although Officer Headricks may not

have been dead before the search began, it was reasonable

to believe that death was likely and that a murder charge

was a possibility. The search was aimed at establishing

the circumstances of death (bullet trajectories, e.g.) and

included evidence relevant to motive and intent or knowledge

(marcotics, e.g.). The search began when the investigative

unit arrived, in accordance with Police Department procedures.

For these reasons, the search was legal and the trial court's

denial of appellant's motion to suppress was proper.

Severance of the Murder Count

Appellant argues it was prejudicial, reversible error

for the trial court to deny his motion to sever the murder

count from the other counts listed in the indictment. We

find no error. So long as the determination is within the

guidelines of Rule 13.3 for joinder and Rule 13.4 for severance,

of the Rules of Criminal Procedure, 17 A.R.S., it is within

the trial court's discretion to deny appellant's motion. E.g.,

State v. Williams, 108 Ariz. 382, 499 P.2d 97 (1972); State

v. Buggs, 108 Ariz. 425, 501 P.2d 9 (1972).

We find Rule 13.3(a)(2) controlling as to joinder in

this situation:

“Rule 13.3 Joinder

"A. Offenses. Provided that each is

stated in a separate count, 2 or more offenses

=2b4e

may be joined in an indictment, information,

or complaint, if they:

* * *

"(2) are based on the same conduct or are

otherwise connected together in their commission

kee"

The murder, assault with a deadly weapon, and drug charges

were all part of a continuing series of events, and are

“otherwise connected together in their commission." Cf.

State v. Tynes, 95 Ariz. 251, 389 P.2d 125 (1964).

Rule 13.4(a) provides the standard for severance:

"Rule 13.4 Severance

"A. In General. Whenever 2 or more

offenses or 2 or more defendants have been

joined for trial, and severance of any or

all offenses, or of any or all defendants,

or both, is necessary to promote a fair

determination of the guilt or innocence

of any defendant of any offense, the court

may on its own initiative, and shall on

motion of a party, order such severance.

* * *

This Court will reverse the denial of a motion to sever only

when a clear abuse of discretion is shown. State v. Dale, 113

Ariz. 212, 550 P.2d 83 (1976).

No such abuse of discretion, i.e. prejudice, can be

shown here because the evidence as to the other counts would

have been admissible at the murder trial even if severance had

been granted. The evidence would be admissible on two bases:

as relevant to the issue of intent and as part of the complete

picture. State v. Schmid, supra; State v. Villavicencio, 95

Ariz. 199, 388 P.2d 245 (1964).

Since we find no prejudice, we hold the denial of the

motion to sever was proper.

Prosecutor's Closing Argument

Appellant points to a single statement in the prosecutor's

closing argument and argues that it is so inflammatory and preju-

dicial as to deprive him of a fair trial:

"Don't tell every heroin pusher in town

that he can have a gun; that he can have

it loaded; that he can shoot a pig if

he feels hassled and that all he need

do, is take the witness stand and say,

‘Yes, sir; no sir,’ and claim that he

had no idea that he was shooting a cop."

The rule in Arizona is that counsel may draw reasonable

inferences from and appraise evidence which was adduced at

trial. State v. King, 110 Ariz. 36, 514 P.2d 1032 (1973).

The statement in question is based on the evidence.

There was testimony that appellant was a heroin dealer, that

he had a loaded gun, that he shot a police officer, and his

defense was that he had no idea that he was shooting 4 police

officer. It is a reasonable inference, if the evidence pointing

to appellant's guilt is believed, that acquitting appellant might

indicate to other heroin sellers that they could get away the f

sentence for Count III was to rum con

a Ae os re secutively to that

ount IV and V were concurrent with III eman

The problem with the prosecutor's statement is that it po wer sates

on Counts III, IV and V for resentencing.

is an emotional appeal to the jury's fears. Although in

closing argument both counsel have wide latitude, State

FRANK X. GORDON, JR.

vy. Landrum, 112 Ariz. 555, 544 P.2d 664 (1976), such an

Justice

appeal .to fear is improper. Cf. State v. Makal, 104 Ariz.

CONCURRING:

476, 455 P.2d 450 (1969); State v. Huson, 73 Wa.2d 660, 440

P.2d 192 (1968), cert. denied, 393 U.S. 1096, 89 S.Ct. 886,

L.Ed.2d (1969). We need not determine, however, JAMES DUKE CAMERON

5 oe ne gay Chief Justice

whether it was so prejudicial as to require reversal because

we are reversing on other grounds, supra. If the murder and

assault charges are retried on remand, we urge counsel to FRED C. STRUCKMEYER, JR.

Vice Chief Justice

refrain from appeals to juror's fears.

Conclusion

For the foregoing reasons, the judgment of the trial

court as to Counts I (murder, first degree) and II (assault

with a deadly weapon) is reversed and remanded for proceedings

consistent with this opinion. The judgment of the trial court

as to Counts III, IV and V (unlawful sale of narcotics, un-

lawful possession of narcotic drug for sale and unlawful

possession of narcotic drug, respectively) is affirmed. Because

-28-

HAYS, specially concurring.

I concur with the majority in all respects except

that I take exception to the characterization of the county

attorney's statement in argument 4s being "an emotional

appeal to the jury's fears." If oral argument at the

close of the case is to have any purpose, it must be more

than a dull and sterile discussion of the evidence. The

condemned statement is based on the evidence and the

inference drawn therefrom is reasonable. It does not

deprive the defendant of legitimate defenses nor does it

exceed the bounds of propriety.

JACK D. A. HAYS

Justice

I concur.

WILLIAM A. HOLOHAN

Justice

Phoentx

Appellant.

85007 June 29, 1977.

)

STATE OF ARIZONA, )

)

Appellee, ) Supreme Court

) No. 3283

vs. )

)

RUFUS JUNIOR MINCEY, ) Pima County

) No. 26666

)

The following action was taken by the Supreme Court of the State of Arizona

on June 28, 1977 in regard to the above-entitied cause:

“ORDERED: Motion for Rehearing (Attorney General) = DENIED.

FURTHER ORDERED: Motion for Rehearing (Appellant) = DENIED."

Copy of Order Affirming in Part and Reversing and Remanding

in Part enclosed.

— ora

TO: Hon. Bruce E. Babbitt, Attorney General, 159 Capitol Building,

Phoenix, Arizona 85007

Heather A. Sigworth, Assistant Attorney General, 100 North Stone,

Suite 1005, Tucson, Arizona 85701

Stephen D. Neely, Pima County Attorney, 111 West Congress,

Tucson, Arizona 85701 mS

Richard S. Oseran, Esq., Bolding, Oseran & Zavala, P. O. Box 70,

La Placita Village, Tucson, Arizona 85702

“ Prederick S$. Klein, Esq., Klein & Klein, 100 North Stone,

Suite 306, Tucson, Arizona 85701

Rufus Junior Mincey, Arizona State Prison, Box B-34490,

Florence, Arizona 85232

mm 17 Recd

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.