State v. Mincey

• Decision Date: 11 May 1977
• Docket Number: No. 3283,3283
• Citation: 115 Ariz. 472,566 P.2d 273
• Parties: STATE of Arizona, Appellee, v. Rufus Junior MINCEY, Appellant.
• Court: Arizona Supreme Court

Page 273

566 P.2d 273

115 Ariz. 472

STATE of Arizona, Appellee, v. Rufus Junior MINCEY, Appellant.

No. 3283.

Supreme Court of Arizona, In Banc.

May 11, 1977.

Bruce E. Babbitt, Atty. Gen., Phoenix, Heather A. Sigworth, Asst. Atty. Gen., Tucson, for appellee.

Rabinovitz, Minker & Dix, P. C., by Albert Perry Dover, Bolding, Oseran & Zavala by Richard S. Oseran, Tucson, for appellant.

GORDON, 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. § 36-1002.02, 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 years 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 reversed and remanded as to Counts I and II; judgment is affirmed 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 originally on information from an informant. Although the testimony 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:

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. Accompanying Headricks was Charles Ferguson, the victim in the assault with a deadly weapon charge. Headricks, according to testimony, looked like a typical undercover narcotics officer: mustache and longish hair, cowboy boots, levis and a levi jacket. He also had an electronic monitoring device so 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 girlfriend. 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 a fellow agent and they and eight other officers prepared to carry out the prearranged plan to consummate the "buy-bust". ¹

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 on the 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 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, a 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 out" 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 a closet floor and asked her is 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 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, a 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 undercover 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 premises and examined the scene over a period of four days. No search warrant was obtained and no reason appears for not seeking one. Although 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 intravenously, 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 inconsistent 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 inadmissible.

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 interrogation 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 appellant filed a timely notice of appeal to this Court.

Appellant raises a number of issues which we have rearranged 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 impeach 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 indictment?

8. Was the prosecutor's conduct in closing argument so inflammatory as to deny appellant a fair trial?

Mens Rea for the Murder Charge

Appellant was charged with murder "which is committed...