State v. Chapple, 5054

Decision Date11 January 1983
Docket NumberNo. 5054,5054
Citation135 Ariz. 281,660 P.2d 1208
PartiesSTATE of Arizona, Appellant/Cross-Appellee, v. Dolan CHAPPLE, Appellee/Cross-Appellant.
CourtArizona Supreme Court
Robert K. Corbin, Atty. Gen. by William J. Schafer, III, Jack Roberts, Asst. Attys. Gen., Charles F. Hyder, Maricopa County Atty. by Marc Budoff, Deputy County Atty., Phoenix, for appellant/cross-appellee

Henry, Kimerer, LaVelle & Erlichman by Michael D. Kimerer, Pamela J. Franks, Randall J. Kries, Phoenix, for appellee/cross-appellant.

FELDMAN, Justice.

Dolan Chapple was convicted on three counts of first degree murder, one count of unlawfully transporting marijuana and one count of conspiring to unlawfully transport marijuana. He was sentenced to a term of life imprisonment without possibility of parole for twenty-five years on each of the murder counts, to a term of imprisonment for not less than twenty-five years nor more than life on the transportation count, and to a term of imprisonment for not less than twenty-five nor more than thirty years on the conspiracy count. The sentence on each count is to run concurrently with the sentences on all other counts. The defendant appealed from this judgment and sentence. This court has jurisdiction pursuant to A.R.S. § 13-4031.

FACTS

The instigator of this bizarre drama was Mel Coley, a drug dealer who resided in Washington, D.C., but who was also connected with dealers in Kansas City. Coley had a history of dealing with a supplier named Bill Varnes, who lived near Phoenix. In fact, Coley, Varnes and a man named James Logan had been arrested once near Coley had made a large number of drug deals through Malcolm Scott, a "middleman" who lived near Phoenix. Scott was also well acquainted with Varnes and had recently returned from Kansas City, where Scott had helped Varnes in a drug transaction involving marijuana and probably some heroin. The trip to Kansas City was not without complications, since Varnes had been "holding-out" on the Kansas City dealers who were purchasing from him. They were unhappy over this and had threatened to take whatever action is appropriate in the drug business to collect the money they felt Varnes owed them. Coley evidently was involved in these problems and shared the feelings of his Kansas City colleagues toward Varnes.

Yuma, Arizona in connection with a heroin transaction. Release was accomplished fairly quickly, giving rise to a suspicion in Coley's mind that someone had "talked" to the authorities.

Coley telephoned in early December 1977 and told Scott that he was interested in purchasing approximately 300 pounds of marijuana. He asked Scott to act as middleman in the transaction. Scott was to get $700 for his efforts. Scott testified that he called one or two of the Arizona suppliers with whom he was acquainted and found they could not supply the necessary quantity. He then called his sister, Pamela Buck, who was a "good friend" of Varnes and had worked with him in some drug deals. Scott asked Buck to contact her friend Varnes and see whether he could handle the sale. 1 Buck talked to Varnes and reported to her brother that Varnes could supply the necessary amount of marijuana at an agreed upon price. Scott relayed this information to Coley. Scott instructed Buck not to tell Varnes that Coley or anyone from Washington, D.C. was involved in the deal.

On the evening of December 10 or the early morning of December 11, 1977, Coley arrived at the Phoenix airport from Washington, D.C. Scott met him at the airport and found that Coley was accompanied by two strangers who were introduced as "Dee" and "Eric." 2 Scott drove the three men to a trailer located at his parents' farm near Higley in Pinal County, Arizona. Scott had used this trailer in the past as a meeting place to consummate drug transactions. This meeting place was part of the service which Scott provided for his "finder's fee."

Coley, Dee and Eric spent the night at the trailer, while Scott returned to his residence in Mesa. The next morning Scott returned to the farm and took Coley to the airport where they picked up a brown leather bag. Back at the trailer, Scott observed Coley, Eric and Dee take four guns from the bag and clean them. Scott examined and handled one of the guns. Buck had also arrived at the trailer in Higley, and she and Dee were dispatched to Varnes' trailer in order to purchase a sample of the marijuana.

Later that morning the conversation between Coley, Eric and Dee indicated that it was likely there would be a "rip-off" of the marijuana and that Coley did not intend to pay for the goods. When Buck expressed to her brother the fear that Varnes would seek revenge if his goods were stolen, Scott told her not to worry because Varnes might never be seen again.

That evening, Scott and his sister met at the trailer with Coley, Eric and Dee. Varnes arrived with two companions, Eduardo Ortiz and Carlos Elsy. Ortiz and Elsy began to unload the marijuana and put it in the trailer. Buck was in the trailer with Coley, Eric and Dee at this time. Scott was some distance away, sitting on the porch of his parents' house. Buck was After Ortiz and Elsy had finished unloading the marijuana and stacking it in the living room of the trailer, Dee suggested to Varnes that they go in the bedroom and "count the money." They started toward the bedroom and Buck went into the bathroom. A few moments later, Buck heard several shots, opened the bathroom door and ran out. Scott heard the shots while he was on the porch and saw a door of the trailer open. Elsy ran out, pursued by either Eric or Dee. After seeing Buck run out of the door at the other end of the trailer, Scott went back to the trailer and found Varnes dead in the bedroom of a gunshot wound to the head and Ortiz in the living room dead of a gunshot wound to the body. Subsequent ballistic tests showed they had been shot with different weapons. Elsy was outside, dead from a blow to the back of the head.

told by Dee or Coley that after the marijuana was unloaded she should lock herself in the bathroom.

Dee and Eric then removed the marijuana from the trailer and loaded it into a car which Coley had directed Scott to buy the previous day. 3 Scott, Eric and Dee loaded the three bodies into the trunk of Varnes' car. That car was driven out to the desert, doused with gasoline and set afire. The trailer was cleaned to remove evidence of the crime and the carpet in the trailer was burned. The parties then left the scene of the crime and returned to Scott's house in Mesa. Eric and Dee asked for directions regarding the route to Kansas City and then left in the car containing the marijuana. Coley gave Scott and Buck $500 each. He then called the airport and reserved a seat to leave for Washington, D.C. under the name of "James Logan." Scott returned to the trailer and completed the cleanup. Fear or remorse, or both, drove Scott to seek the aid of a lawyer, who succeeded in negotiating an immunity deal for Scott and in getting him to surrender to the sheriff.

Defendant does not contest any of the foregoing facts. Defendant is accused of being "Dee." He denies this. At his extradition hearing in Illinois, seven witnesses placed him in Cairo, Illinois during the entire month of December 1977, three of them testifying specifically to his presence in that town on December 11, the day of the crime. The same witnesses testified for him in the trial at which he was convicted. No direct or circumstantial evidence of any kind connects defendant to the crime, 4 other than the testimony of Malcolm Scott and Pamela Buck, neither of whom had ever met the defendant before the crime and neither of whom saw him after the crime except at the trial. Defendant was apprehended and tried only because Malcolm Scott and Pamela Buck picked his photograph out of a lineup more than one year after the date of the crime; he was convicted because they later identified both the photographs and defendant himself at trial.

The State's position was that the identification was correct, while the defendant argued at trial that the identification was erroneous for one of two reasons. The first reason advanced by defendant is that Scott and Buck were lying to save themselves by "fingering" him. To buttress this contention, defendant established that Scott and Buck had made a "deal" with the State whereby they were granted complete immunity for their part in the crime unless the facts showed that they had knowingly participated in the killings. Defendant also argues that Coley, who did not testify at the trial, is part of the "arrangement" with the State since he, too, made a deal by entering into a plea bargain for second degree murder with a sentence of ten to fifteen years. Eric being still at large, this left defendant, who was identified initially only through photographs, as the sole object of prosecution. These contentions were evidently Defendant further argued at trial, and urges here, that even if Scott and Buck are not lying, their identification was a case of mistaken identity. The argument is that Scott and Buck picked the wrong picture out of the photographic lineup and that their subsequent photographic and in-court identifications were part of the "feedback phenomenon" and are simply continuations or repetitions of the same mistake. To support this contention of mistaken identification, defendant offered expert testimony regarding the various factors that affect the reliability of identification evidence. For the most part, that testimony was rejected by the trial court as not being within the proper sphere of expert testimony.

rejected by the jury and are not in issue here.

With these facts in mind, we consider the various issues raised by this appeal. Where necessary, additional facts will be given in connection with each of those issues.

THE PHOTOGRAPHIC LINEUP

On appeal, the defendant first contends that he...

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