State v. Lamb

• Citation: 690 P.2d 764,142 Ariz. 463
• Decision Date: 25 October 1984
• Docket Number: No. 6018,6018
• Parties: STATE of Arizona, Appellee, v. Glenn Ray LAMB, Appellant.
• Court: Supreme Court of Arizona

Page 764

690 P.2d 764

142 Ariz. 463

STATE of Arizona, Appellee, v. Glenn Ray LAMB, Appellant.

No. 6018.

Supreme Court of Arizona In Banc.

Oct. 25, 1984.

Robert K. Corbin, Atty. Gen. by William J. Schafer III and Barbara A. Jarrett, Asst. Attys. Gen., Phoenix, for appellee.

George F. Klink, Phoenix, for appellant.

CAMERON, Justice.

The defendant, Glenn Ray Lamb, was convicted of two counts of first degree murder, A.R.S. § 13-1105, and one count of armed robbery, A.R.S. § 13-1904. He was sentenced to twenty-one years for the robbery, A.R.S. § 13-702, and to two terms of life imprisonment without possibility of parole for twenty-five years for the murder convictions, A.R.S. § 13-703. The murder sentences were made consecutive to the robbery sentence but concurrent to each other. We have jurisdiction pursuant to Ariz.Const.Art. 6, § 5(3) and A.R.S. § 13-4031.

The issues we must resolve are:

1. Was the defendant arrested without probable cause?

2. Was it reversible error to fail to disclose to the grand jury the reasons for the public defender's withdrawal?

3. Did the trial court err in refusing to allow evidence as to why the public defender withdrew from the case?

4. Was testimony of one witness about "other" murders so prejudicial it deprived the defendant of a fair trial?

5. Was improper testimony admitted at trial?

6. Was the defendant entitled to forms of verdict for both premeditated murder and felony murder?

7. Did the court err in not instructing on lesser-included offenses?

8. Did the court err in not giving a "Willits" instruction about lost or destroyed evidence and in neither suppressing the evidence nor granting the defendant's motion to dismiss?

9. Was an improper sentence imposed in count III (the robbery conviction)?

The facts follow. On 18 September 1979 the victims, Roberta Mae Durr and Russell Wilson, operated the K & L Bar in downtown Phoenix. They closed the bar between 7:00 and 8:00 p.m. and, as they often did, went with their friend, Harold Starr, to the nearby Silver Dollar Bar where the defendant was the bartender. As was their custom, the victims took the cash from the register at the K & L Bar, purported to be over $400, with them. After a while, Starr left for the victims' apartment. The victims intended to follow after him. Three electricians were also in the bar when the trio arrived, and they were still there when Starr left. It is unclear from the testimony whether the victims or the electricians left the Silver Dollar first. It is also unclear exactly what time the electricians left. They had all left, however, when, sometime between 10:30 and 11:30, two policemen drove down the alley behind the Silver Dollar and saw the defendant mopping the area inside the back door of the bar. The officers testified Durr's light blue Thunderbird was in the alley. Around 2:00 a.m. on the 19th, Starr, who had been sleeping at the victims' apartment, noticed the victims were not yet home. He drove to the K & L looking for them but they were not there. He drove past the Silver Dollar, but the bar was closed and the lights were out. About 3:30 Lawrence Prince arrived for work at his produce company, situated behind the Silver Dollar. He saw a man lying beside a car in the alley and called the police. The police drove through the area but did not stop. Prince called again, and when the police arrived the second time Prince stopped them in the alley and told them what he had seen. The officers discovered Wilson next to the Thunderbird in a pool of blood, badly beaten but still alive. Paramedics arrived shortly thereafter, but Wilson died before regaining consciousness. While one of the paramedics was looking for something with which to prop up Wilson's head, he found Durr's body in a dumpster next to the rear door of the Silver Dollar. She had been beaten with a blunt instrument, put in the dumpster, and covered with a plastic sheet. Durr's keys were found in the ignition of her car and her empty purse was on the front seat.

The defendant was interviewed between 6:00 and 7:00 the morning of the 19th. He claimed the victims left the bar shortly after Starr. At approximately 9:20 that morning, the defendant registered for a room at the Hyatt Regency Hotel under the name of Glenn Neff. He paid the $42 fee for one night and also rented a safe deposit box from the hotel. Shortly thereafter, the defendant gave the key to the box to his employer, Jerry Ornatek, and asked him to hold it for him.

Later that morning, the police discovered blood spots in the area near the rear entrance of the Silver Dollar. There were droplets on the inside of the door, on the inside wall, on the door frame, around the baseboard, and around the restroom door. The wooden bar used to secure the door had blood on it, and there was what one witness testified looked like blood mixed with water underneath a booth near the rear entrance. After this discovery, the police again interviewed the defendant. After this second interview, the defendant was arrested.

Ornatek turned the defendant's keys over to the police. In December they located the safe deposit box and found $333 in it. On 29 January 1980 the public defender assigned to represent the defendant withdrew because of a conflict of interest. On 13 June 1980 the charges against the defendant were dropped without prejudice.

In September of 1982, three years after the victims' deaths, the defendant was staying in Texas with his brother and sister-in-law, Roger and Bettye Lamb. Bettye and a friend, John Osborne, both testified that the defendant claimed you could get away with murder in Phoenix if you knew the right people. Bettye testified she did not take his comments seriously at first, but after he repeated them several times and stole $20,000 from her, she decided he was telling the truth and had been involved in the Phoenix murders. She further testified the defendant stated he was not worried about returning to Phoenix because he had "gotten away with murder there." The defendant was again arrested and tried and convicted, and now appeals.

I. Was there probable cause to arrest

The defendant claims his 1979 arrest was illegal because it was not based on probable cause, and "therefore all evidence subsequently seized or acquired was the fruit of that illegality." He insists his arrest was based on no more than a hunch or mere suspicion. He claims at the time of his arrest the police knew other people had threatened the victims' lives, that there was no evidence connecting him to the crimes, that there was at the time no evidence connecting him with any money, that there was no evidence of exactly where Durr was killed, and that there was no reason to suspect that he committed the murders or the robbery. We do not agree.

Probable cause has been defined as follows:

[P]robable cause for an arrest without a warrant, is reasonable ground of probability supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused guilty. 'Probable cause' or 'reason to believe,' therefore, is like a third quarter percentile: it is more information than would justify the officer in saying, 'From all the circumstances I suspect this man'; but it need not be such information as would justify the officer in saying, 'From all the circumstances, I know this is the man'.

Monroe v. Pape, 221 F.Supp. 635, 642-43 (N.D.Illinois 1963). The two bludgeoned bodies, of course, indicated that a public offense had been committed. The question is whether the police had probable cause to believe the defendant had committed the crimes. In answering this question, we consider only the facts the police knew at the time of the arrest. The victims had been in the Silver Dollar Bar the previous evening, and their bodies were found at the rear of the bar near the back door. The defendant was the bartender at the bar. Between 10:30 and 11:30 p.m. the defendant had been observed mopping the area inside the back door of the bar. The police found fresh blood inside the bar, on the two by four the defendant used to prop the back door of the bar open, on the two by six the defendant used to close the back door, and on the inside of the door frame. As Officer Harry Jennings of the Phoenix Police Department testified:

It appeared, like I said, that there was blood spattering inside the door frame and on one end of a two-by-four which was used to keep the door open, and after I talked to him and he stated that he was the last one in the bar and that the victims were the last customers in the bar, and due to the fact it appeared that the one victim had been bludgeoned at the back door with the back door open, it was assumable that he would have been the suspect.

The physical evidence, together with defendant's incriminating statements to the police, raised a reasonable inference that it was the defendant who had murdered the two victims. We find the police had probable cause to arrest the defendant at the time they arrested him. We find no error.

II. Irregularities in the Grand Jury proceedings

The defendant next argues "Refusal to disclose [to the Grand Jury] the fact of the Public Defender's prior representation and the reasons for his removal from the case constitute[d] prosecutorial misconduct and a denial of [the defendant's] right to a fair trial and impartial presentation of the evidence." Defendant cites Crimmins v. Superior Court, 137 Ariz. 39, 668 P.2d 882 (1983) in support of his claim, and insists that, by withholding evidence, the prosecutor controlled the result of the grand jury proceeding. We need not reach this question however, because Crimmins, supra, does not apply to this case.

In Crimmins, the appellant brought a petition for special action prior to his trial challenging the grand jury proceedings. In the instant case, the defendant did not challenge the determination of probable cause until the instant appeal. He waived his...