State v. Burris
| Decision Date | 01 February 1982 |
| Docket Number | No. 2,CA-CR,2 |
| Citation | 643 P.2d 8,131 Ariz. 563 |
| Parties | The STATE of Arizona, Appellee, v. Bo M. W. BURRIS, Appellant. 2416-2. |
| Court | Arizona Court of Appeals |
Appellant was found guilty by a jury of unlawful imprisonment and aggravated assault, a dangerous non-repetitive offense. He was sentenced to concurrent prison sentences of six months and five years, respectively. He contends the trial court erred (1) in refusing to allow him to cross-examine the victim as to certain matters which would show the victim's bias, prejudice and motives; (2) in refusing to suppress the evidence of the crime, and (3) in failing to properly qualify the interpreter or to allow him to substitute his own interpreter. He also attacks the grand jury proceedings. We affirm.
The victim, Manuel Hernandez Garcia, illegally entered the United States on August 21, 1980, with another alien who knew appellant. They went to appellant's ranch and appellant gave Garcia a job doing general cleanup work and looking after his two small daughters.
On October 3, 1980, Garcia was alone at the ranch when Newell Casavant arrived. Appellant allegedly owed Casavant money for some electrical work he had done at the ranch. Casavant asked Garcia, who spoke almost no English, if appellant had left some money for him. When Garcia said that he didn't, Casavant began to look around the premises. Casavant eventually departed but returned later that night with a person named Sidney Belt. Garcia heard heavy objects being moved but was afraid to go outside and investigate. Belt and Casavant took appellant's tools as "security" for the alleged debt. The next morning Garcia discovered the tools were missing and saw tire tracks that matched those of Casavant's truck.
Garcia was alone at the ranch until noon on October 6 when Willis Flint, an artist, arrived to work on a mural he was painting in appellant's home. Since Flint spoke Spanish, Garcia told him what had happened. They tried to locate appellant but were unable to do so. When appellant returned to the ranch at about 8 p. m., Garcia told him what had happened, showed him the tire tracks, and told him that he thought Casavant had taken the tools. Appellant did not believe Garcia and thought that he had taken the tools himself and hid them in the desert. Appellant wanted to go to Tucson to confront Casavant and Garcia wanted to see the police. Appellant did not want to take Garcia to the police, but Garcia agreed to accompany appellant to Tucson to confront Casavant. Appellant took his shotgun with him in the truck and they both left for Tucson. Appellant could not locate Casavant and stopped at the home of Sidney Belt. He left Garcia and his shotgun with Belt while he went to a nearby Circle K to get gas. Appellant then came back to Belt's residence, got Garcia, and they went back to appellant's ranch.
Upon arriving at the ranch, appellant had Garcia remove a large chain from the truck and told him to get a blanket out of the bunkhouse so Garcia could sleep outside. Garcia told appellant that he was a man, not an animal to be threatened with a shotgun, and that it was cold outside. Appellant pointed the shotgun at Garcia as Garcia walked towards the bunkhouse. When Garcia neared the door of the bunkhouse, appellant pushed him into the doorway and Garcia pushed back. Garcia then began walking away from the doorway towards Flint's truck. With a distance of about 7 feet between them, appellant fired a shot near Garcia's feet and then aimed the shotgun at his chest and kept it aimed there until Garcia entered the bunkhouse.
The argument and noise had awakened Flint, who was sleeping in the back of his truck. He told Garcia to let appellant do what he wanted to so that they all could go to sleep. Appellant then placed the chain around Garcia's neck and padlocked it. He then padlocked one end of the chain around a tree outside the bunkhouse and another part around the toilet in the bunkhouse. The time when the chaining took place was approximately 10 p. m. on October 6.
The next morning appellant told Garcia that he was going to Tucson, but said nothing about reporting the burglary to the police. About 5 p. m. Casavant arrived and told Flint that he heard that appellant had come looking for him with a shotgun. When appellant returned that night, Casavant was still there. After talking with Casavant, appellant removed the chain from Garcia's neck but told him that Casavant would kill him if he tried to leave. Appellant, at that time, conceded that Garcia was not guilty of the burglary and told him that he could stay on. Garcia told appellant that he wanted to be paid so that he could go back to Mexico.
Meanwhile, at about 8:15 in the evening, an anonymous caller informed a United States Border Patrol agent, Gregory Reed, that an illegal alien was chained by the neck to a tree at a ranch near mile post 50 on U. S. Highway 83, the Sonoita highway. The caller knew the rancher's name but would not reveal it. Reed relayed this information to the Pima County Sheriff's Office.
About 10:30 p. m., Deputy Gary Force was dispatched to locate the ranch Reed had described and investigate the matter. Having initially encountered difficulties with the directions given to him, Force finally located appellant's ranch with the help of a Mr. Thayer, appellant's neighbor. When Force pulled into appellant's property in a marked patrol car and informed him of the reason for his visit, appellant told Force that he was wasting his time and that nobody was chained there. This was literally true since a couple of hours earlier appellant had released Garcia after determining that he did not commit the burglary. As Force and Thayer were about to leave the ranch, Thayer called Force's attention to a large chain around the trunk of a tree near the bunkhouse. When Force asked appellant about the chain, appellant replied that he was going to mention that to Force and in answer to Force's request to see what was on the other end of the chain which led into the bunkhouse, appellant told him, "wait here". After appellant did not immediately return, Force walked around to a window on the outside of the building and looked in. He could see the chain leading through the small rooms of the bunkhouse, but could not see the end of it. Moving to another window, he observed appellant getting up from his knees in the bathroom and moving towards the front of the bunkhouse. Unbeknownst to Force, appellant had gone into the bunkhouse, gotten hold of Garcia and pushed him into a closet.
When appellant returned, Force asked him again if he could see the other end of the chain. Appellant told him that he could. Force followed the chain to a small bathroom and found the other end wrapped around the base of the toilet. Approximately six feet from the toilet in the same room was a closet door. Force opened the door and found Garcia standing in the closet with his back to the door. From speaking to appellant and afterwards utilizing Mr. Thayer as an interpreter, Force ascertained that Garcia was probably an illegal alien, took him into custody and handcuffed him.
Based on the information from Deputy Force and statements from Garcia which were given to sheriff's deputies after he left the ranch, a search warrant was issued and executed. Sheriff's deputies seized the chain, two expended shotgun shells, a twelve-gauge shotgun and other items found on the property.
Appellant testified at the trial on his own behalf. He admitted chaining Garcia, admitted that he never had any intention of calling the police even though he suspected that Garcia had committed a burglary, admitted that he intentionally fired the shotgun but stated that he did so out of frustration and never in an attempt to threaten Garcia. He also denied that he ever pointed a shotgun at Garcia in a threatening manner and denied that he discharged the shotgun near Garcia's feet. Thus it is clear that when the case went to the jury there were only three factual disputes: (1) What was appellant's intention when he discharged the shotgun? (2) Did appellant point the shotgun at Garcia in a threatening manner? (3) Did appellant discharge the weapon at or near Garcia's feet?
Appellant contends the trial court erred when it refused to allow him to put on the testimony of Don Estes, Esq., as to the preparation of a civil lawsuit for damages arising out of appellant's conduct which formed the basis for the criminal prosecution. In the offer of proof, Estes testified that another attorney contacted him and told him that the Mexican consulate wanted some United States lawyers to contact Garcia and advise him of his legal rights. Estes and the other lawyer met with the consul and Garcia. The lawyers told Garcia about the various legal claims he might have against appellant, and Garcia asked the lawyers to see if there was something they could do for him. Garcia signed a retainer agreement.
Estes discussed the possible lawsuit with a deputy county attorney who said she did not want him to file a lawsuit at that time. Estes made out a rough draft of a complaint but as of the time of the trial nothing further had taken place and the matter was "up in the air".
Appellant offered this testimony in order to impeach Garcia's testimony by showing his bias, prejudice and motive. When questioned about the relevancy of this testimony, appellant's counsel said that it showed a motive to lie. The trial court told appellant's counsel that he would consider the offer of proof if appellant could point out to him evidence which would show that Garcia had changed his account of the incident after he had been...
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