State v. DeGraw

• Decision Date: 08 June 1976
• Docket Number: No. 1,CA-CR,1
• Citation: State v. DeGraw, 550 P.2d 641, 26 Ariz.App. 595 (Ariz. App. 1976)
• Parties: STATE of Arizona, Appellee, v. Walter Harry DeGRAW, Jr., Appellant. 1119.
• Court: Arizona Court of Appeals

Page 641

550 P.2d 641

26 Ariz.App. 595

STATE of Arizona, Appellee, v.Walter Harry DeGRAW, Jr., Appellant.

No. 1 CA-CR 1119.

Court of Appeals of Arizona, Division 1, Department B.

June 8, 1976.

Rehearing Denied July 27, 1976.

Bruce E. Babbitt, Atty. Gen., by William J. Schafer, III, Chief Counsel, Crim. Div. and Shirley Frondorf, Asst. Attys. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender, by Garth V. Smith, Deputy Public Defender, Phoenix, for appellant.

OPINION

HAIRE, Chief Judge, Division 1.

The defendant was charged with murder and found guilty of involuntary manslaughter.He submitted to the trial judge the issue of his guilt or innocence based upon evidence presented at a prior jury trial which had resulted in a mistrial because the jury could not reach a verdict.He now appeals from the trial court's judgment of guilt and sentence to a term of from eight to ten years in the Arizona State Prison.

On July 16, 1973, Connie Ann DeGraw was shot through the head by her husband, the defendant.The weapon was a .45 caliber single-action revolver.The defendant readily admitted to the police that he killed his wife, but claimed that the shooting, which took place in the couple's house trailer, was an accident which occurred while he was unloading the revolver while preparing to clean it.A pathologist testified that the muzzle of the revolver must have been held no further than 'an inch or two at the very most' from the victim's head.His opinion was based upon massive powder burns and internal fractures within the skull, characteristic of a shot fired at extremely close range.In a police interview shortly after the death, the defendant had stated that his wife had gotten up from the couch, and was three or four feet away when the gun discharged.He denied that the gun could have been an inch from his wife's head, and maintained that the death was an unfortunate accident.

Pictures and measurements of the scene of the shooting were taken by investigating officers both immediately after the shooting, and some four days later pursuant to a search warrant.A complaint was filed and warrants issued for defendant's arrest more than ten months after the shooting.Additional facts will be provided throughout this opinion when pertinent to the issues discussed.

The following matters are claimed by the defendant as error:

1.He was denied his right to a speedy trial in violation of the Sixth and Fourteenth Amendments to the United States Constitution.

2.The trial court erred in denying his motion to suppress evidence seized from his house trailer pursuant to a search warrant.

3.The judgment of guilt of involuntary manslaughter was contrary to the law and weight of the evidence.

4.His sentence of not less than eight nor more than ten years was excessive.

DENIAL OF SPEEDY TRIAL

The contention that there was a denial of defendant's Sixth Amendment right to a speedy trial because of the ten month interim period between the shooting and the filing of the complaint against defendant is without merit.It is well settled that:

'. . . it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.'

United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468, 479(1971).AccordState v. Robles, 110 Ariz. 184, 516 P.2d 320(1973);State v. Jackson, 17 Ariz.App. 533, 499 P.2d 111(1972).The Marion court specifically rejected an argument similar to that presented here.However, there has been a recognition that pre-indictment delay may violate a person's Fifth and Fourteenth Amendment procedural due process rights when the defendant shows that the state unreasonably delayed prosecution and that such delay substantially prejudiced his defense.State v. Marks, 113 Ariz. 7, 546 P.2d 807(1976);State v. Saiz, 103 Ariz. 567, 447 P.2d 541(1968).During the interim period between the shooting and the arrest, defendant sold the house trailer in which the shooting took place.Defendant maintains that because there was no indication that he was a suspect, he did not, prior to the sale of the house trailer and in contemplation of a defense to a criminal prosecution, take pictures and measurements of, or make experiments concerning, the scene of the shooting which purportedly would support his explanation of the July 16, 1973, events.Assuming, without deciding, that the delay was unreasonable, defendant's argument that he was substantially prejudiced by such a delay is unpersuasive.The record indicates that the defendant must have been aware that he was a suspect.Three days after the shooting and in conjunction with giving a statement to the police, he was advised of his Miranda rights.Moreover, the questions asked at that time should have caused the defendant to surmise that the police doubted his story.Finally the measurements and pictures taken and the experiments performed at the house trailer by the police were made available to the defendant to assist him in his defense strategy.We further note that there is no indication that the ten month delay was for the purpose of giving the state a tactical advantage over the defendant.SeeUnited States v. Marion, supra.We therefore reject defendant's speedy trial contentions.

THE MOTION TO SUPPRESS

We next consider defendant's contentions relating to the alleged insufficiency of the affidavit which was the basis for the issuance of a search warrant authorizing a search of the house trailer on July 20, 1973, four days after the shooting.Defendant's argument in this regard can be broken down into two parts.

The first argument is based upon the alleged conclusory nature of one statement contained in the search warrant affidavit.The part of the affidavit relating to this portion of defendant's argument reads as follows:

'That the following facts establish probable cause for believing that grounds for the issuance of a search warrant for the aforementioned items exist:

'On the date of July 19, 1973, at approximately 1230 hrs P.M., the affiant learned the following information in the following manner:

'Received County Medical Examiner's Report signed by Dr. Heinz Karnitschnig stating after the examination of the deceased Connie Ann DeGraw Dr. felt because of the size of the wound and the gases embedded in the eye; smudging and soiling of the skin is of the opinion that the wound was a contact wound where the barrel of the weapon would have to be held on the skin or no more than 1 inch away from the skin.

'This information is contrary to statements made by the deceased's husband, Walter Harry DeGraw.'(Emphasis added).

Defendant contends that the affidavit should have set forth the substance of his statement that his wife was three or four feet away when the gun discharged, therefore allowing the magistrate to draw The conclusion as to whether the statement was contrary to the information given by the pathologist.We need not determine defendant's contentions in this regard because, without considering any statements made by the defendant, other portions of the affidavit are sufficient to establish probable cause to believe that the place to be searched contained evidence which related to the homicide involved.While the affidavit did not expressly state that the killing of defendant's wife had occurred in the house trailer to be searched, no deficiency in this regard is raised by defendant.In any event, we note that the affidavit did state that Mrs. DeGraw had been shot in the head with a .45 caliber pistol, and among the described property or things to be obtained were the following:

'Item #5--Blood samples from carpeting located on living room floor area from forementioned mobile home trailer

'Item #6--Blood samples from the wall area around the built in television set, and living room area of the forementioned mobile home house trailer

'Item #8--Sample of paneling from the living room area of the aforementioned mobile home house trailer where the projectile lodged.'

These items by their very nature are ordinarily not of a movable nature, and therefore would only be found at the scene of the crime.For this reason, we have no hesitancy in holding that a common sense interpretation of the affidavit would furnish sufficient grounds from which the magistrate could have concluded that the homicide had occurred in the house trailer which was the subject of the application for the search warrant.Given that fact, the affidavit was clearly sufficient to establish probable cause to believe that the house trailer contained evidence relating to that crime.In State v. Sample, 107 Ariz. 407, 489 P.2d 44(1971), and in State v. Duke, 110 Ariz. 320, 518 P.2d 570(1974), our Supreme Court pointed out the special considerations involved when search and seizure questions are raised relating to premises upon which a deceased victim has been found.We are aware that in Sample v. Eyman, 469 F.2d 819(9th Cir.1972), the 9th Circuit Court of Appeals disapproved the search involved in State v. Sample, supra.However, here, unlike the fact situation in either Sample or Duke, supra, we are not dealing with the question of whether there existed exigent circumstances justifying a warrantless search, but rather a fact situation in which the investigating officer did obtain a search warrant before searching the premises involved.

Defendant's second argument attacking the validity of the search warrant is that it constituted a general warrant.We are not persuaded by defendant's arguments in this regard.The search warrant authorized a search for the following items:

'Marriage records, written documents, eyeglasses, all weapons and ammunition, bullethole, blood samples on interior of trailer walls, cushions, and couch; measurements of trailer (interior and exterior); photographs...