State v. Brierly

• Decision Date: 16 April 1973
• Docket Number: No. 2177,2177
• Citation: 109 Ariz. 310,509 P.2d 203
• Parties: STATE of Arizona, Appellee, v. Scott R. BRIERLY, Appellant.
• Court: Arizona Supreme Court

Page 203

509 P.2d 203

109 Ariz. 310

STATE of Arizona, Appellee, v. Scott R. BRIERLY, Appellant.

No. 2177.

Supreme Court of Arizona, In Banc.

April 16, 1973.

Gary K. Nelson, Atty. Gen., by Paul J. Prato, Former Asst. Atty. Gen., and Ronald L. Crismon, Asst. Atty. Gen., Phoenix and Howard L. Fell, Asst. Atty. Gen., Tucson, for appellee.

DeConcini & McDonald by J. Wm. Brammer, Jr., and Barber, Haralson, Giles & Moore by Charles M. Giles, Tucson, for appellant.

HAYS, Chief Justice.

Scott R. Brierly was charged with the murder of Bettie Frances Stevens in violation of ARS §§ 13--451, 13--452 and 13--453. He was tried by a jury which, on April 6, 1970, returned a verdict of guilty of first degree murder and set the penalty of death. On April 20, 1970, defendant's motion for a new trial was heard and denied and the trial court sentenced him to death. Brierly appeals from the denial of his motion for a new trial and from the verdict of guilty and the sentence of death.

The defendant presents twenty-nine issues on appeal, many of which necessitate a careful review of specific facts. The initial summary of the factual context of the case will, therefore, be brief.

Will Stevens, the husband of the victim, returned to Tucson from a business trip in the early morning hours of September 27, 1969. After securing his airplane, he left the airport and drove toward his Tucson home. He stopped at the Cliff Manor Motel on the way when he saw his wife's car parked in the parking lot. He found his wife in another car with another man. Bettie Stevens got into her husband's car and they went home where they argued. She had been drinking. They decided she would go back to the Cliff Manor Motel and get a room. Will Stevens drove his wife to the motel, and informed her that he had taken her car keys and her checkbook. At the motel he watched his wife go into the lobby and then returned home to call a friend to help him pick up his wife's car. They picked up the car and returned to the Stevenses about 3:30 a.m. to have a drink.

When Bettie Stevens asked the night clerk about her reservation at the motel, she was told that she had none. With that information, she tried to make a phone call but became discouraged trying to get the coins in the slot, cried, and left the building. She was found later that morning, lying naked on the desert, dead of four gunshots in the head.

Scott Brierly, age 21, lived in Oracle but was in Tucson on business on September 26, 1969. He spent the early part of the evening at the Maverick in Tucson. He left the Maverick about 1:00 a.m. on the 27th and went to Wild Bill's Big T, an after-hours bar, where he stayed until shortly before 3:00 a.m. Brierly was stopped by two Tucson police officers about 3:15 a.m., when they noticed a headlight out on his pickup. He was arrested and charged with murder as a result of the evidence which came to light during the course of this routine traffic violation stop.

I. Did the trial court err in denying the motion to suppress the evidence of Brierly's truck, its contents and his personal effects because of the State's failure to secure a search warrant prior to the searches and seizures?

The testimony shows the following factual situation: Upon being stopped by Deputy Sheriff Max Clark and Reserve Deputy Sheriff Eddie Charles Mahon, Brierly got out of the cab of his truck and walked toward the rear of the truck to the police car. The defendant had a cut over his right eye from which he was bleeding slightly. In addition, the defendant wore no shirt, and Deputy Clark testified he observed 'a large quantity of what appeared to be blood on the defendant's chest, arms and hands.' Deputy Clark introduced himself and the defendant explained that he had been in a fight at Wild Bill's Big T. Deputy Mahon observed that Brierly was 'covered with what appeared to be blood from the waist up, on his hands, arms and face.' While Deputy Clark talked to the defendant, Deputy Mahon went to the driver's side of the pickup and proceeded to the front to check out the headlight. On the way, Mahon flashed his light into the bed of the pickup where he saw a pile of 'rags,' a pair of shoes and a handbag. He proceeded on to the open door of the truck and shone his light into the cab where he saw blood and a six-pack of beer. He called Deputy Clark who told Brierly to sit by the right rear of the truck. The two men then lifted up the bloody rags which, upon examination, turned out to be a dress and a bra-slip. The deputies then asked Brierly if he knew a 'Bettie Stevens,' the name they found on a card in the handbag. He said 'No.'

Deputy Charles Shinberg arrived and he and Clerk again looked in the cab of the truck. Clark noted two inches of a dagger handle protruding from beneath the front seat. The articles from the bed of the truck and the dagger were seized.

The fourth amendment to the United States Constitution protects the people from 'unreasonable searches and seizures' and provides that no search warrants shall issue except for probable cause. In the instant case, the 'plain view' doctrine of Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), provides the relevant exception to the warrant requirement. Coolidge provides that:

What the 'plain view' cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification--whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused--and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the 'plain view' doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. 403 U.S. at 466, 91 S.Ct. at 2038.

The headlight provided the initial reason for the officers' lawful intrusion and, in light of the defendant's bloody condition, they immediately realized that the bloody apparel and the dagger were evidence. The seized items were in 'plain view' and the items were discovered inadvertently while the deputies were justified in being beside the truck. The fact that the flashlight was necessary to provide enough light to see into the truck is irrelevant: the use of a flashlight is comparable to the use of a searchlight, a marine glass or a field glass, and is not prohibited by the fourth amendment. State v. Loyd, 92 Idaho 20 at 24, 435 P.2d 797 at 801 (1967). See United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927).

After finding Mrs. Stevens' bloody possessions and the dagger in the defendant's truck, Officer Shinberg most certainly had probable cause to believe a crime had been committed and therefore had probable cause to search the truck further. Under Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), automobiles and other vehicles may be searched without a warrant in circumstances which would not justify a search of an office or a house, because of the mobility of the vehicle. The gun and holster found by Shinberg under the seat of the cab were clearly admissible under Carroll.

Brierly also contests the search of the pickup at the station house several days later, as well as the search of the vehicle by vacuuming. Under Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) the Court set forth its reasons for holding that a later station-house search under the present circumstances is valid: The truck

(c)ould have been searched on the spot when it was stopped since there was probable cause to search and it was a fleeting target for a search. The probable-cause factor still obtained at the station house and so did the mobility of the car. . . . 399 U.S. at 52, 90 S.Ct. at 1981.

Finally, the defendant urges that the search and seizure of his clothing and belongings at the jailhouse was in violation of the fourth amendment as interpreted by Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), a case which limits warrantless searches incident to arrest. We cannot agree. Chimel limits searches incident to arrest to the area of the defendant's 'person and the area from within which he might have obtained either a weapon or something that could have been used as evidence against him.' 395 U.S. at 768, 89 S.Ct. at 2043. The very clothes Brierly wore were bloody and were evidence against him.

II. Does the Arizona procedure in capital cases whereby the trier of fact determines both guilt and punishment in a single verdict violate the sixth and fourteenth amendments of the Constitution?

Defendant argues that allowing the trier of fact to determine both guilt and punishment violated his Constitutional rights because it effectively prevented him from presenting, during the trial, evidence in mitigation of sentence. The United States Supreme Court has spoken on this precise issue in Crampton v. Ohio, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971):

The Constitution requires no more than that trials be fairly conducted and that guaranteed rights of defendants be scrupulously respected. From a constitutional standpoint we cannot conclude that it is impermissible for a State to consider that the compassionate purposes of jury sentencing in capital cases are better served by having the issues of guilt and punishment determined in a single trial than by focusing the jury's attention solely on punishment after the issue of guilt has been determined. 402 U.S. at 221, 91 S.Ct. at 1474.

III. Does the Arizona procedure, allowing capital trial juries absolute discretion to impose either the penalty of...