State v. Adamson, 5155

Citation665 P.2d 972,136 Ariz. 250
Decision Date11 April 1983
Docket NumberNo. 5155,5155
PartiesSTATE of Arizona, Appellee, v. John Harvey ADAMSON, Appellant.
CourtSupreme Court of Arizona

Robert K. Corbin, Atty. Gen., William J. Schafer III, Chief Counsel, Criminal Div., Jack Roberts, Asst. Atty. Gen., Phoenix, for appellee.

Martin & Feldhacker by William H. Feldhacker and Gregory H. Martin, Scottsdale, for appellant.

GORDON, Vice Chief Justice:

On October 17, 1980, a jury found appellant guilty of first degree murder for the bombing death of newspaper reporter Donald Bolles. Following an aggravation-mitigation hearing on November 14, 1980, the defendant was sentenced to death. Appellant now challenges the conviction on the basis of several allegations of error. We have jurisdiction pursuant to Ariz. Const. Art. 6, § 5(3) and A.R.S. § 13-4031. We affirm.

Adamson was charged with the June 2, 1976, bombing murder of Donald Bolles. The evidence at trial showed that Bolles, an investigative reporter for the Arizona Republic newspaper, had arranged to meet the defendant at a Phoenix hotel in order to gather information for a potential news story. Two notes concerning the meeting were found after the bombing at Bolles' office. Bolles went to the hotel at the designated time and waited for Adamson in the lobby. While Bolles was waiting, he received a telephone call from an individual he later identified as the defendant. Bolles later stated that Adamson wanted to change the place of the meeting and asked Bolles for directions to his office. Bolles then went to his car and began backing out of the parking space in route to the newly-arranged meeting. As he was backing out a bomb exploded sending pieces of Bolles' car throughout the parking lot and into a neighboring construction site. Witnesses testified that the force of the explosion shook neighboring buildings.

Several rescuers administered first aid to the victim who was still conscious although critically injured. Both of his legs and one arm were severely mutilated. Bolles made statements to the rescuers which implicated the defendant and asked one witness to call his wife. He mentioned the defendant's name several times and stated that "Adamson [set or sent] me." He also told the individuals rendering first aid, "You better hurry up, boys. I feel like I'm going."

The next day the victim responded to questions from the Phoenix Police by means of finger and hand signals. Bolles indicated that he had gone to the hotel the day before to meet Adamson and had received a call from him while waiting for his arrival. Bolles identified a driver's license photograph of the defendant and indicated that he was the man Bolles had met four days earlier while investigating the same story. After having both legs and one arm amputated, Bolles died June 13, 1976.

Intensive police investigations in the days immediately following the bombing revealed the structure of the bomb and that it was a radio-controlled device. The police also established that the defendant was involved in the incident and a warrant was issued to search his apartment. In searching Adamson's residence the police found materials similar to those used to construct the bomb which was attached by magnets to the underside of Bolles' automobile. Literature which contained information concerning the making of explosive devices was also seized. Further investigations revealed that Adamson had purchased remote control equipment two months earlier at a hobby shop in San Diego, California which could have been used to trigger the explosive device. Furthermore, in May, 1976, Adamson had gone to the Arizona Republic parking lot and asked the guard where "Don-So-and-so['s]" car was, saying he had some papers to drop off in the car. Adamson and his companion then went to an automobile dealership and inspected the underside of several cars similar to that owned by Bolles. In route to the dealership the defendant told the individual riding in his car that "he was going to blow up a car" and when asked why, Adamson responded because "this guy was giving people a lot of hard times and stepping on people's toes." At trial testimony was given to establish that Adamson was paid $10,000 to kill Donald Bolles.

Adamson originally pled guilty to second degree murder. As required by his plea bargain, Adamson testified against James Robison and Max Dunlap in Cause No. CR-96127. Robison's and Dunlap's convictions were reversed and remanded by this Court for new trials in State v. Robison, 125 Ariz. 107, 608 P.2d 44 (1980) and State v. Dunlap, 125 Ariz. 104, 608 P.2d 41 (1980). Adamson refused to testify at the retrials of Robison and Dunlap unless the state met new demands. The state brought a special action in this Court to determine whether Adamson had breached his plea agreement by refusing to testify without the granting of his new demands. The Court ruled that the plea agreement had been breached and reinstated the original information charging open murder. Adamson v. Superior Court, 125 Ariz. 579, 611 P.2d 932 (1980). It is from the judgment of conviction of first degree murder based on the reinstated charge that defendant now appeals. Further facts will be set out as necessary in the discussion of the issues raised on appeal.

The defendant's Petition for Review of the denial of his Rule 32 petition was consolidated with this appeal pursuant to Ariz.R.Crim.P. 31.4(b)(2).

Statements and Notes of Victim
A. Hospital Statements

The day after the bombing three detectives went to the hospital to question Bolles about the bombing. In response to their questions Bolles indicated that he had gone to the hotel to meet the defendant and that while at the hotel he received a call from Adamson. Bolles also identified a photograph of Adamson and indicated that the defendant was the person he had intended to meet on the morning of June 2nd. Appellant contends that the trial court erred in denying his motion to suppress the hospital statements on the grounds that they were inadmissible hearsay.

At the outset we set forth the standard for review: A trial court's denial of a motion to suppress will not be reversed in the absence of a clear abuse of discretion. State v. Ferreira, 128 Ariz. 530, 627 P.2d 681 (1981). The trial court ruled that the statements were admissible as dying declarations under Ariz.R.Evid. 804(b)(2). That rule requires the following: (1) that the statements in this case are being used in a homicide prosecution; (2) the statements were made by a declarant while believing his death was imminent; and (3) that the statement concerned the cause or circumstances of what he believed to be his impending death. Defendant objects to the admission of the statements under this rule because there is no evidence that the victim believed death was imminent at the time the statements were made. We disagree. The law does not require that there be a direct assertion by the declarant that he is dying at the time the statements were made. Udall & Livermore, Law of Evidence § 133 (2d ed. 1982). The party offering dying declarations may show that the victim was under a sense of impending death either by express language of the deceased or by the indubitable circumstances. Collins v. State, 37 Ariz. 353, 294 P. 625 (1930). In this case the state has shown both. Witnesses who were at the scene of the bombing described Bolles' legs as having the consistency of hamburger. One witness testified that he had seen a piece of flesh the size of a softball on the pavement as he was rushing across the hotel parking lot towards Bolles' car. At the scene of the bombing the victim made the following statement to rescuers: "You better hurry up, boys. I feel like I'm going." Several hours after the bombing the victim's right leg was amputated. The hospital statements were made one day after the bombing. At the time of the statements Bolles was in grave condition in the intensive care unit. Under these conditions it is reasonable to conclude that when the statements were made Bolles was under a sense of impending death. There was no error in admitting the hospital statements.

B. Statements at the Scene

Immediately after the bombing Bolles made several statements to the individuals who were rendering emergency care. These statements indicated that in some manner the defendant was involved in the bombing. The victim further stated that a mafia-related organization could have played a role in the bombing. The trial court denied the defendant's motion to suppress these statements allowing them to come in as evidence by applying both the excited utterance and dying declaration exceptions to the hearsay rule. On appeal appellant contends that the statements should not have been admitted at trial since they were not based on the personal knowledge of the victim.

A trial court's ruling on whether a particular statement was in fact an excited utterance will not be reversed absent a clear abuse of discretion. State v. Dale, 113 Ariz. 212, 550 P.2d 83 (1976); State v. Kevil, 111 Ariz. 240, 527 P.2d 285 (1974). An excited utterance is: "A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Ariz.R.Evid. 803(2). In the instant case there is no question that an exciting event had occurred and that the statements in question occurred immediately thereafter. The victim's statements related to the bombing since they were made for the precise reason of revealing who was responsible for the bombing and setting up Bolles. See State v. Kevil, supra. Furthermore, there is no question that the victim's statements were dying declarations. Ariz.R.Evid. 804(b)(2). Bolles expressly stated that he felt like he was going and the statements concerned the cause and circumstances of what he believed to be his impending death.

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