State v. Emery
| Decision Date | 16 February 1982 |
| Docket Number | No. 5001,5001 |
| Citation | 131 Ariz. 493,642 P.2d 838 |
| Parties | STATE of Arizona, Appellee, v. Robert Lloyd EMERY, Appellant. |
| Court | Arizona Supreme Court |
Robert K. Corbin, Atty. Gen. by William J. Schafer III and Michael Jones, Asst. Attys. Gen., Phoenix, for appellee.
H. Louis Hiser and Thomas L. Kehm, Kingman, for appellant.
Appellant, Robert Lloyd Emery, was found guilty of first degree murder and second degree burglary following a trial by jury. He was sentenced to death for the crime of first degree murder and to 10 years imprisonment for the crime of second degree burglary.
Following the jury trial on the murder and burglary charges and prior to a new jury trial scheduled on unrelated charges of aggravated assault, arson, armed robbery, and attempted murder, appellant entered into a plea bargain agreement. Under the terms of this agreement, the trial court judge was to determine appellant's guilt or innocence of the aggravated assault and armed robbery charges based on the grand jury transcript and the evidence presented during the suppression hearing which included appellant's confession. In return, the arson and attempted murder charges were dropped. Appellant was convicted and sentenced to concurrent terms of 15 years for aggravated assault and 22 years for armed robbery, both sentences to run consecutively with the 10-year term for burglary. Appellant appealed from these convictions and sentences.
A notice of appeal from the conviction and sentence of death was automatically filed pursuant to 17 A.R.S. Rules of Criminal Procedure, rule 31.2(b). We accepted jurisdiction in the case involving imposition of the death penalty pursuant to A.R.S. § 13-4031 and consolidated both cases on appeal in accordance with 17A A.R.S. Rules of Supreme Court, rule 47(e)(5). Reversed and remanded for proceedings consistent with this opinion.
The operative facts are set forth below. Additional facts pertinent to the resolution of the issues raised will be developed as necessary within the opinion.
On December 20, 1978, the appellant and the codefendant, Edward Gilliam, were charged by the same grand jury, in separate indictments, with a total of six crimes. All indictments stemmed from an initial investigation by the Mohave County Sheriff's Office into the crimes of aggravated assault, arson, armed robbery, and attempted murder which occurred on the night of December 14, 1978, in the home of the victim, Simon L. Buras.
Buras had heard someone outside his residence and had gone to the door to investigate. Two men hit him and dragged him into the house. Before leaving, the men severely beat Buras, ransacked his home and started a fire in the bathroom. The victim was able to crawl from the burning house. While in the hospital, he talked with a detective from the Mohave County Sheriff's Office and described his assailants. One of the men was tall and slender and was wearing a baseball cap. The second man was shorter and had a mustache. Buras was able to identify one of his assailants, the codefendant, Edward Gilliam, from a police photograph.
In addition to the information received from Buras, two sheriff deputies stated that men whose descriptions were similar to those of Emery and Gilliam had been observed at a bar on the night of the incident. After someone in the bar started to talk about the Buras fire, the two suspects ran outside and started their vehicle. Patrons gave the license plate number and a description of the car in which the men were seen. Based on the information obtained, a complaint and an arrest warrant were issued charging appellant and Edward Gilliam with aggravated assault, arson, attempted murder, and armed robbery. The men were arrested at different locations on December 16, 1978.
At the time of their arrests, neither man had been charged with the murder on December 11, 1978, of Diana Mary Coderre. When the murder occurred, the victim was living with Violet Diggens in her home in Lake Havasu City. Two men had entered the Diggens-Coderre home during the night of December 11, 1978. Mrs. Diggins awoke and saw a man in the hallway. She also observed a tall man at the kitchen sink washing his hands. Mrs. Diggens locked the door to her bedroom and escaped to the outside through a door located in the bathroom off her room. From her hiding place in some weeds near the house she observed two men who came out onto the patio and walked around the area. After the men returned to the house and Mrs. Diggens saw headlights leave the driveway, she ran to a neighbor's house for help. The police arrived and found Diana Coderre dead in her bedroom. She had been stabbed three times.
During interviews with the police subsequent to the arrests on December 16, 1978, both men admitted being together on the night of December 11, 1978, and made statements implicating each other in the murder of Diana Mary Coderre.
Emery and Gilliam were also seen at the home of John Masopust, Sr., which was located about two miles from the Diggens-Coderre house. At approximately 2:00 a. m. on the morning of December 11, 1978, Masopust had allowed appellant and Gilliam to enter his house to use the telephone because they claimed that their car had run out of gas. Later, Masopust discovered that the tape recording machine on the telephone had been running during the "phone call." The tape contained a recording of appellant's voice as well as a dial tone which indicated that no one had actually been called.
On December 20, 1978, a grand jury indicted Robert Lloyd Emery with the crimes of aggravated assault, arson, armed robbery, and attempted murder arising out of the incident at Buras's house. In a second indictment, appellant was charged with first degree murder and second degree burglary in connection with the occurrences at the Diggens-Coderre house.
In his appeal from the first degree murder conviction, appellant advances eight arguments:
1) Appellant's confession was obtained in violation of the standards set forth in Miranda v. Arizona and its progeny;
2) The trial court erred in not suppressing the confession;
3) The trial court failed to exclude testimony of a prior inconsistent statement in violation of Rule 613(b), Arizona Rules of Evidence;
4) Appellant's arrest was based on an invalid arrest warrant;
5) Failure to bring appellant promptly before a magistrate for his initial appearance denied him a substantial right;
6) The probable cause determination was made by a biased grand jury;
7) The trial court committed fundamental error and denied appellant due process of law by not presenting to the jury Forms of Verdict distinguishing between felony-murder and first degree murder with premeditation as the bases for finding guilt;
8) Imposition of the death penalty under the felony-murder doctrine violated the eighth-amendment prohibition against cruel and unusual punishment when evidence of direct participation in the murder was insufficient.
Because all convictions, including the murder conviction, are reversed, the arguments relating to the Forms of Verdict and the eighth-amendment prohibition against cruel and unusual punishment will not be addressed.
Appellant was arrested on December 16, 1978, at approximately 2:30 p. m. and was held in an isolation cell until 10:00 p. m. when he was transported by car to the detectives' office. Upon arrival at the office, the officers played a 30-second tape recording of appellant's voice (the "Masopust tape") obtained from a telephonic message recorder located in the home of John Masopust. When the tape was completed, Detective Melton advised the appellant of his Miranda rights and inquired whether he was willing to waive these rights voluntarily and answer questions. Appellant responded: "I may have a lawyer if I knew what its all about." The detective explained that Gilliam, the alleged accomplice, had informed police that Emery was the one who had assaulted Mr. Buras and murdered Mrs. Coderre, whereupon appellant indicated he desired a lawyer. The interview terminated immediately, approximately three minutes after it had commenced. At 10:52 p. m., 42 minutes later, the tape recorder was again turned on and Detective Melton recorded the following explanation:
The defendant was informed of his Miranda rights a second time and the following dialogue occurred:
During the suppression hearing, Detective Melton testified that the second interview took place at the defendant's request because he did not want "to carry the weight of the whole charge on himself." The defendant stated that he overheard a "conversation" carried on by the two detectives in which they spoke about the gas chamber, and Emery felt the death penalty would be imposed if he did not confess.
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