State v. Summerlin

• Citation: 675 P.2d 686,138 Ariz. 426
• Decision Date: 21 November 1983
• Docket Number: No. 5612,5612
• Parties: STATE of Arizona, Appellee, v. Warren Wesley SUMMERLIN, Appellant.
• Court: Supreme Court of Arizona

Page 686

675 P.2d 686

138 Ariz. 426

STATE of Arizona, Appellee, v. Warren Wesley SUMMERLIN, Appellant.

No. 5612.

Supreme Court of Arizona In Banc.

Nov. 21, 1983.

Reconsideration Denied Jan. 17, 1984.

Robert K. Corbin, Atty. Gen. by William J. Schafer III, and Jessica Gifford Funkhouser, Asst. Attys. Gen., Phoenix, for appellee

Kemper & Henze by James Hamilton Kemper, Phoenix, for appellant.

CAMERON, Justice.

Defendant, Warren Wesley Summerlin, was tried before a jury and convicted of first degree murder, A.R.S. § 13-1105, and sexual assault, A.R.S. § 13-1406. The defendant was sentenced to death for the murder, A.R.S. § 13-703, and to twenty-eight years for the sexual assault, both sentences to be served consecutively. An The issues we must decide on appeal are:

automatic appeal to this court followed pursuant to Rules 26.15, 31.2(b), Arizona Rules of Criminal Procedure, 17 A.R.S.; we have jurisdiction pursuant to Art. 6, § 5(3) of the Arizona Constitution, and A.R.S. §§ 13-4031 and 13-4035.

I. Was defendant's motion to suppress evidence obtained pursuant to a search warrant properly denied?

II. Did the trial court improperly comment on the evidence in front of the jury?

III. Was the trial court's admission into evidence of eight autopsy photographs of the victim erroneous?

IV. Was the defendant's anti-marital fact privilege violated?

V. Does defendant have a right to a jury determination of factual questions that lead to imposition of the death penalty?

VI. Is the Arizona death penalty statute unconstitutional because it fails to provide guidance for weighing and balancing aggravating and mitigating circumstances?

VII. Does this court find in its independent review that the death penalty was appropriate in this case?

VIII. Is the death penalty in this case proportionate to the disposition of other similar cases?

The facts necessary for a resolution of these issues are as follows. At approximately 8:30 a.m. on 29 April 1981 the victim left her place of business (Finance America) in Tempe, Arizona. The victim was a delinquent-account investigator, and was occasionally required to personally visit the residences of persons whose accounts were delinquent and who could not be reached by phone. On this particular day, her agenda included visits to two residences, the first visit being to the residence of defendant, Warren Summerlin. Upon completing a visit, the victim routinely called back to Finance America and notified her superior of her whereabouts. On this particular day Mr. Buchanan, the victim's superior, never received such a call.

Marvin Rigsby, the victim's boyfriend, typically spoke with the victim several times during the day while she was at work. When he called Finance America and learned that she had not returned or called the office after leaving that morning, he asked for and received from Mr. Buchanan the addresses that the victim was supposed to visit that day. Mr. Rigsby arrived at defendant's house at approximately 5 p.m. and spoke with the defendant. Mr. Rigsby described the victim and asked the defendant if anyone resembling her had visited defendant that day. Defendant answered affirmatively, stating that the victim left his house at approximately 10:30 a.m. After leaving defendant's residence, Mr. Rigsby drove to the second address. The woman residing at this address told Mr. Rigsby that she had been home all day, and had not received a visit from anyone. That evening Mr. Rigsby relayed the preceding information to the police.

That same evening, Officer Brunk received an anonymous "Silent Witness" call concerning the present case. The female caller stated that she had information concerning the woman from "Pacific Finance Company" who was reported missing. The caller further stated she thought that this woman had been killed by Warren Summerlin, who resided at 3342 West Willetta in Phoenix, and that Mr. Summerlin had rolled up the victim's body in a carpet. The caller was later identified as the defendant's mother-in-law.

At approximately 5 a.m. the next day, Mr. William Goodman was working at the "Low Cost Market" at 35th Avenue and Van Buren in Phoenix. At this time, a road paving crew directed his attention to a brown Mustang car parked in the parking lot of Mr. Goodman's store. Mr. Goodman, who had served in Vietnam, went outside to observe the car and recognized the odor Detective Klettlinger arrived at the parking lot to investigate. He forced open the lock of the trunk of the brown Mustang, later identified as the victim's car, and found the victim's dead body rolled up in a bedspread. The bedspread was covered with blood and contained green carpet tufts, sponge padding, and long red hairs. A piece of bloody plastic was also found with the body. The victim was nude from the waist down, and Detective Klettlinger observed a white milky substance on her genitalia.

of a decaying body. He also observed a pair of women's panties and shoes lying on the backseat of the car. Mr. Goodman walked back to his store and called the police.

Based upon the above information, Officer Davis of the Phoenix Police Department obtained a search warrant which was served at defendant's residence by Detective Klettlinger at approximately 5:30 p.m. on 30 April 1981. After serving the warrant, Detective Klettlinger seized carpeting and padding from inside the house, bloody men's boots and a hoe with hair on it resting by a door outside the house, and a bloody child's reader and bloody floor tiles in a garbage can outside the house.

Detective Fuqua, also of the Phoenix Police Department, accompanied Detective Klettlinger during the search of defendant's residence. Detective Fuqua read the search warrant to defendant, and the defendant said, "I didn't kill nobody." Detective Fuqua did not reply, and defendant asked, "Is this in reference to the girl that was at my house?" Detective Fuqua asked, "What girl?", and the defendant stated "the lady that came to the house about 10:00 in the morning, reference to [my] wife's piano." The defendant was then advised of his rights, and indicated he understood these rights. During this time, defendant's wife identified the bedspread found with the victim as belonging to the Summerlin household.

Detective Klettlinger again advised defendant of his rights, arrested defendant, and transported him to the main Phoenix police station. At the police station, defendant asked to speak with his wife, and Detective Fuqua arranged this meeting. When Mrs. Summerlin arrived, Detectives Fuqua and Martinsen were present in the interviewing room. Defendant requested a private conversation with his wife, and Detective Fuqua told him this was impossible. While the detectives remained in the interviewing room, defendant proceeded to make several incriminating statements to his wife. After returning Mrs. Summerlin to her home at approximately 8:05 p.m., Mrs. Summerlin gave Detective Martinsen permission to further search the residence. Detective Martinsen seized some men's clothing that had been soaking in a bathtub and a towel was also seized. Mrs. Summerlin told Detective Martinsen about these items before they entered the house.

The defendant was tried and convicted by a jury and now appeals.

EVIDENCE FOUND PURSUANT TO SEARCH WARRANT

The affidavit in support of the warrant read in part:

IN SUMMARY, [THE VICTIM] was last known to have gone to 3342 West Willetta on a delinquent account for FINANCE OF AMERICA. She was to contact a MR. & MRS. SUMMERLIN who [lived] in the rear house at this address. [THE VICTIM] never showed up at her next appointment at 3843 West Abraham. A W/M at 3342 West Willetta (rear house) identified himself as the husband of MRS. SUMMERLIN. He said that [THE VICTIM] had contacted him at approximately 10 a.m., that morning, April 29, 1981, and had left. Silent Witness Call # 1594 advised that the SUSPECT is a WARREN SUMMERLIN, W/M, 32-35 years, and he may have killed the VICTIM. The VICTIM['S] body was found in the locked trunk of her car in the west parking lot at 3442 West Van Buren. Her keys, purse and credit cards are missing. The VICTIM was wrapped in a white plastic bed-liner cover, bed sheet or water bed liner. She had apparently Defendant contends that the warrant was based on an anonymous tip and controlled by the "two-pronged" test established by the United States Supreme Court's decisions in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). We need not rely, however, upon the anonymous tip, as we believe that there were sufficient facts without the anonymous tip upon which to base a valid warrant. We agree, however, that an informant who contacts the police through the Silent Witness program commands a greater expectation of reliability than the average police informant. State v. Turney, 134 Ariz. 238, 241, 655 P.2d 358, 361 (App.1982); State v. Collins, 21 Ariz.App. 575, 578, 522 P.2d 40, 43 (1974). Unlike the usual police informant who frequently seeks some favor from the police in return for his information, the silent witness generally wants nothing in return for his or her tip. Absent other evidence as to the corrupt motive of the anonymous caller, such an informant is considered reliable and credible. Turney; and Collins, supra.

been killed at another location, placed in the trunk of her car and driven to 3442 West Van Buren.

Concerning probable cause, the Ninth Circuit Court of Appeals has stated that:

affidavits are to be interpreted in a common sense and realistic manner, * * * and * * * probable cause exists when the facts and circumstances shown in the affidavit would warrant a man of reasonable caution in the belief that the items to be seized were in the stated place, * * *.

United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir.1970). When evaluating an affidavit, "[a] search warrant may not be issued unless...