State v. Dykes

• Decision Date: 01 March 1977
• Docket Number: CA-CR,No. 1,1
• Citation: 114 Ariz. 592,562 P.2d 1090
• Parties: STATE of Arizona, Appellee, v. Louis J. DYKES Appellant. 905.
• Court: Arizona Court of Appeals

Page 1090

562 P.2d 1090

114 Ariz. 592

STATE of Arizona, Appellee, v. Louis J. DYKES Appellant.

No. 1 CA-CR 905.

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

March 1, 1977.

Rehearing Denied March 30, 1977.

Review Denied April 19, 1977.

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

Ross P. Lee, Maricopa County Public Defender by Rudy J. Gerber, Deputy Public Defender, Phoenix, for appellant.

EUBANK, Judge.

This appeal raises primarily the issue of the use of appellant's silence upon being arrested as evidence of his criminal negligence in a subsequent manslaughter trial. It also raises the issue of the federal government's exclusive criminal jurisdiction over the Gila Bend Air Force Gunnery Range.

Appellant and James Dale McDaniel, previously had organized expeditions to the Gila Bend Gunnery Range, a 2.75 million acre millitary facility lying south and west of Phoenix, Arizona. The desert-area range is used by United States Air Force planes for shelling and strafing practice and is littered with brass shell casings. The purpose of appellant's occasional expeditions onto the range was to steal a truckload of casings which he later would sell for scrap metal.

Appellant would recruit assistants, all young men, from housing projects in Phoenix. He paid his assistants $25 per day, with a promise of a bonus for extra effort. For the expedition in question, appellant recruited twelve persons.

The men arrived at the range on Friday night, May 24, 1974, and set up a base camp. They collected casings during the next day, and, later that day, appellant and McDaniel drove to Gila Bend in order to replenish their water supply. While in Gila Bend, the two men rented a room at a motel where they went swimming.

On their way back to the base camp, appellant and McDaniel found five of their workers at 'Nine Mile Well,' some twelve miles from their base camp. The five younger men had walked to the well (which contained nonpotable water) because of thirst.

On Sunday, the temperature on the range eventually reached 155 . Early in the morning, the men were collecting casings on a section of the gunnery range known as Range Three. As they were working, an Air Force helicopter flew overhead. The young men scattered and hid while appellant and McDaniel, who were in the pick-up truck carrying the group's water supply, drove away. They testified that they intended to camouflage the truck.

The truck became stuck, and the helicopter returned and landed. McDaniel had hidden, and appellant remained at the truck. Appellant surrendered peaceably and was taken first to the Air Force base, and then to the Gila Bend Sheriff's substation. McDaniel later returned to the truck, took a contrainer of water and a 30--06 rifle, and began to walk out of the range.

The testimony is conflicting about the knowledge of the Air Force of the presence of other persons on the range. Appellant said nothing about the others until 8:00 p.m., the next day, Monday, after he had learned that the Gila Bend Sheriff's substation had been receiving calls about Angel Contrers, one of the men who had gone with appellant to the range. Appellant then told the deputy on duty that some of his group might still be on the desert. The deputy indicated that the proper procedure was for a missing persons report to be filed. In any event, no search was mounted until several hours later, early on Tuesday morning.

Two young men, Ted Ponse and Jose Mellote, had found their way to a road and were picked up and given water by a Sgt. Zilisch and his wife. Further down the road, Sgt. Zilisch picked up McDaniel. The three men were taken to a service station in Gila Bend and eventually found their way back to Phoenix. None of these men reported that anyone else might remain on the desert.

Another young man, Charles Grignon, walked out of the desert to Gila Bend and got a lift back to Phoenix. Grignon did not tell anyone until Monday night that his companions remained in the desert.

Four young men managed to get to Nine Mile Well, where they were found alive on Tuesday.

Five of the men did not survive the heat, and their bodies were found following the search on Tuesday. They had died of dehydration. Appellant and McDaniel were charged in state court with five counts of involuntary manslaughter, A.R.S. § 13--456, were tried separately, and were convicted as charged.

Appellant raises four issues on appeal. Although we find that one of appellant's arguments requires that the conviction be reversed and the cause remanded for a new trial, we will discuss all the contentions, since it is obvious that they will be raised again during the re-trial of this matter.

The questions presented, as phrased by appellant in his opening brief, are:

I Did the state court lack jurisdiction?

II Was the prosecution of this defendant arbitrary, capricious, a denial of equal protection, and an attribution of a criminal mens rea when none in fact existed?

III Did the trial court err in permitting the defendant's Fifth Amendment right to silence to be used against him to establish his guilt?

IV Did the trial court err in refusing defendant's motion to suppress certain evidence because of a failure to provide defendant the standard Miranda warnings?

I. JURISDICTION

In his brief appellant argues that, because the crime occurred on federal property, the state was without jurisdiction to try appellant 'because exclusive jurisdiction over criminal offenses committed on federal military property rests in the Federal government.'

The land on which the crime occurred was purchased by the United States from Mexico in 1853. When Arizona became a state, the United States retained title to the land pursuant to the Enabling Act passed by Congress. See 36 U.S. Statutes, 61st Congress, Chapter 310, § 20 (1910); 1 A.R.S., Enabling Act, p. 80, 1956. Appellant claims that the federal government acquired exclusive jurisdiction over the land by virtue of the Enabling Act. Section 20 of the Act provides, Inter alia,

* * * (T)he people inhabiting said proposed State do agree and declare that they forever disclaim all right and title to the unappropriated and ungranted public lands lying within the boundaries thereof and to all lands lying within said boundaries owned or held by any Indian or Indian tribes, the right or title to which shall have been acquired through or from the United States or any prior sovereignty, and that until the title of such Indian or Indian tribes shall have been extinguished the same shall be and remain subject to the disposition and under the absolute jurisdiction and control of the Congress of the United States(.)

Contrary to appellant's assertion, the Arizona Enabling Act did not vest exclusive jurisdiction over the land in the federal government, but rather reserved a proprietary interest in the property in the federal government. See Fort Leavenworth R. Co. v. Lowe, 114 U.S. 525, 5 S.Ct. 995, 29 L.Ed. 264 (1885); Richardson v. Turner, 16 Utah 2d 371, 401 P.2d 443 (1965); State v. Johnson, 81 S.D. 20, 130 N.W.2d 106 (1964). There is a vast difference between proprietary ownership of the public domain and exclusive jurisdiction. Appellant cites no authority to support his contention. To the contrary the case law and logic dictate the opposite conclusion. See Fort Leavenworth v. Lowe, supra. Further, if the statutory language cited by appellant was meant to confer exclusive jurisdiction, then the subsequent section of the Act granting exclusive jurisdiction over the Indian lands would be unnecessary, and the cession statutes (infra) enacted by the states would also be unnecessary as to land in the public domain. Finally, appellant's contention would mean the federal government has exclusive jurisdiction over all of the public domain land in Arizona. This is simply not the law.

Next, appellant contends that Arizona ceded jurisdiction to the federal government by statutory enactment in 1913. The Arizona Code of 1913 provided:

4633. The consent of the State of Arizona is hereby given, in accordance with the seventeenth clause, eighth section of the first article of the Constitution of the United States, to the acquisition by the United States, by purchase, condemnation, or otherwise, of any land in this state required for sites for custom houses, court houses, post offices, arsenals, or other public buildings, or for any other purposes of the government.

4634. Exclusive jurisdiction in and over any land so acquired by the United States shall be, and the same is hereby ceded to the United States for all purposes, except that the right is reserved to the state to serve upon any such sites all civil and criminal processes of the courts of this state; but the jurisdiction so ceded shall continue only so long as the United States shall own such land.

4635. The jurisdiction ceded shall not vest until the United States shall have acquired the title to the said lands by purchase, condemnation or otherwise; and so long as the said lands shall remain the property of the United States when acquired as aforesaid, and no longer, they shall be and continue exempt and exonerated from all state, county and municipal taxation, assessment or other charges which may be levied or imposed under the authority of this state.

4636. Exclusive jurisdiction over the military reservations of Fort Apache in Navajo County, Port Huachuca in Cochise County, Whipple Barracks, and Whipple Barracks Target Range in Yavapai County, and all the lands now or hereafter embraced within such reservations are hereby ceded to the United States for all purposes, except that the right is reserved to the state to serve all civil and criminal processes of the courts of this state within said reservations; but the jurisdiction so ceded shall continue only so long as the United States owns such reservations and the lands...