State v. Encinas, 5272

Citation647 P.2d 624,132 Ariz. 493
Decision Date02 June 1982
Docket NumberNo. 5272,5272
PartiesSTATE of Arizona, Appellee, v. Joseph Albert ENCINAS, Appellant.
CourtSupreme Court of Arizona
Robert K. Corbin, Atty. Gen., William J. Schafer, III, Asst. Atty. Gen., Chief Counsel, Crim. Div., David R. Cole, Asst. Atty. Gen., Phoenix, for appellee

James Hamilton Kemper, Phoenix, for appellant.

GORDON, Vice Chief Justice:

Appellant Joseph Albert Encinas and codefendant Darrick L. Gerlaugh were convicted of first degree murder, A.R.S. § 13-1105, armed robbery, A.R.S. § 13-1904, and kidnapping, A.R.S. § 13-1304. The trial court sentenced appellant to life imprisonment without possibility of parole for twenty-five years on the murder charge, A.R.S. § 13-703, and twenty-one years each on the other charges, A.R.S. §§ 13-701, -702. All sentences were ordered to run concurrently. Appellant appealed all three convictions. We have jurisdiction pursuant to Ariz.Const. Art. 6, § 5(3) and A.R.S. § 13-4031.

On the evening of January 24, 1980, appellant, Gerlaugh, and James Matthew Leisure had some drinks at an acquaintance's home in Chandler, Arizona. At about 11:30 p. m., the three decided to leave and hitchhike into Phoenix. They were picked up by Scott Schwartz, the victim. Shortly after entering the car, Gerlaugh pulled out a gun and ordered Schwartz to drive a route that ended up on a dirt road along a canal near the boundary between the communities of Mesa and Gilbert. All four people got out of the car.

Gerlaugh, Leisure, and appellant then tried to rob Schwartz. Schwartz resisted and a scuffle ensued. Schwartz was beaten for ten or fifteen minutes. Gerlaugh then got back into the car and drove it over Schwartz while Leisure and appellant held him on the road. Finally, Gerlaugh and Leisure stabbed Schwartz with a screwdriver thirty to forty times in the head and chest. A pathologist testified that these events caused several serious injuries, any one of which would have been fatal.

The three assailants dragged Schwartz's body off the road to an adjoining field and covered it with alfalfa. They returned to the road and drove away in Schwartz's car.

When Schwartz's car broke down, they resumed hitchhiking. Harry Roche drove by and picked them up about 2:00 a. m. Gerlaugh pulled the gun on Roche and ordered him to take what appeared to Roche to be random turns. When they finally stopped, Gerlaugh, Leisure, and appellant got out of Roche's pickup truck. They then ordered Roche to get out, but he sped away before they could stop him.

The three found a haystack and spent the night there. Within a few days, appellant became remorseful. He confided in someone what had happened, and this person reported the crime to the police. Gerlaugh, Leisure, and appellant were interviewed Appellant raises three issues in his appeal. He argues that: (1) his confession was involuntary; (2) the trial court erred when it precluded appellant from calling Leisure as a witness before the jury when Leisure out of the jury's presence, indicated that he would invoke his Fifth Amendment right against self-incrimination as to all questions; and (3) the trial court erred when it instructed the jury on both premeditated and felony murder but only gave the jury one form of verdict for guilt of first degree murder. In addition, pursuant to A.R.S. § 13-4035, we have discovered error in the use of Mr. Roche's testimony after he had been hypnotized to recall the facts of the night in issue. We consider each alleged error below, and we affirm the convictions and sentences.

they all confessed, and they all were arrested and charged.


Appellant objects to the admission of his statements to the police on the ground that he did not voluntarily confess. One of the detectives interrogating him conveyed that Gerlaugh had stated that appellant was totally responsible for the crime. The detective then told appellant that he had "better get (his) two cents in" so that he would not "take the whole rap." Appellant argues that the detective thereby made an implied promise of leniency.

"In Arizona, confessions are prima facie involuntary and the burden is on the state to show they are voluntary. * * * Such showing must be by a preponderance of the evidence. * * * Once the trial court finds that the confession is voluntary, such finding will not be upset on appeal absent clear and manifest error."

State v. Hall, 120 Ariz. 454, 456, 586 P.2d 1266, 1268 (1978) (citations omitted).

Under the totality of the circumstances of this case, we do not believe the trial court's admission of the confession should be upset on appeal. First, the state presented evidence both through its own witness and through appellant that appellant was not informed of Gerlaugh's statements until after he had confessed to the murder. Second, when appellant was questioned before and after the confession about the voluntariness of his statements, he responded that his confession was voluntary and he had not been threatened, coerced, or made any promises. The trial court had the opportunity to judge the credibility of the witnesses as they testified and of the evidence presented, and we can find no clear and manifest error in its judgment that appellant's confession was voluntarily rendered.


Both parties agree that the trial court erred when it precluded appellant from calling Leisure as a witness even though it had been determined out of the jury's presence that Leisure would invoke his Fifth Amendment right not to testify as to all questions. The trial court so ruled at the request of the prosecutor and attorney for codefendant Gerlaugh. In State v. Gretzler, 126 Ariz. 60, 612 P.2d 1023 (1980) (decided almost eight months before the trial in the instant case), we held that a defendant's Sixth Amendment right to present evidence on his or her behalf includes the right to call a cofelon to testify even if it has been determined that the cofelon will invoke the Fifth Amendment as to all questions. Gretzler applied our opinion of four years earlier-State v. Ortiz, 113 Ariz. 60, 546 P.2d 796 (1976). The trial court clearly erred in precluding appellant from calling Leisure.

We also held in Gretzler, however, that such an error will not require reversal if it is harmless beyond a reasonable doubt. The error in the instant case is harmless.

One of appellant's defenses to all the charges was duress. See A.R.S. § 13-412. Appellant made an offer of proof that if Leisure testified, he would corroborate appellant's duress defense. On appeal, appellant maintains that the prejudice suffered by his inability to call Leisure as a witness The error is harmless because appellant was not entitled to rely on the duress defense. 1 A.R.S. § 13-412(C) provides that the duress defense "is unavailable for offenses involving homicide or serious physical injury."

was that he was precluded from showing the jury that he had presented all the evidence he could to support the duress defense.

The charges against appellant were first degree murder, armed robbery, and kidnapping. First degree murder, whether premeditated or felony murder, is a homicide. A.R.S. § 13-1101(2). Whether the jury convicted appellant for premeditated or felony murder, the plain language of A.R.S. § 13-412(C) bars duress as a defense. 2

Under the circumstances of this case, duress was also no defense to the armed robbery and kidnapping charges. " 'Serious physical injury' includes physical injury which creates a reasonable risk of death, or which causes serious and permanent disfigurement, or serious impairment of health or loss or protracted impairment of the function of any bodily organ or limb." A.R.S. § 13-105(29). It cannot be questioned that the brutal beating, mutilation, and eventual slaying of the victim during the robbery-kidnapping-murder transaction involved serious physical injury. See State v. Barrett, 132 Ariz. ---, 644 P.2d 242, (1982) (death involves serious physical injury). Because the armed robbery and kidnapping were offenses involving serious physical injury, A.R.S. § 13-412(C) also barred duress as a defense to those charges.

Therefore, the preclusion of calling Leisure before the jury was harmless error beyond a reasonable doubt. The only purpose of calling Leisure was to buttress the duress defense, but duress was no defense as a matter of law in the instant case.


Appellant was charged with first degree murder under A.R.S. § 13-1105. The indictment recited that the murder was both premeditated and a felony murder. The jury was instructed that it could find first degree murder if it determined that the murder was either premeditated or a felony murder. The jury was given only two forms of verdict for the murder charge-guilty of first degree murder or not guilty of first degree murder.

Appellant raises the argument that he was denied the right to a unanimous jury verdict as guaranteed by Ariz.Const. Art. 2, § 23 because the court failed to give a form of verdict for guilty of premeditated murder and one for guilty of felony murder and none for guilty of first degree murder generally. The theory is that with the forms of verdict given, some jurors could have found him guilty of premeditated murder but not felony murder while the rest could have found him guilty of felony murder but not premeditated murder. Thus, he would be convicted of first degree murder even though the jury could not unanimously...

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  • State v. Allen
    • United States
    • Arizona Supreme Court
    • July 26, 2022
    ...defendant is not entitled to a unanimous verdict on the precise manner in which the act was committed." (quoting State v. Encinas , 132 Ariz. 493, 496, 647 P.2d 624, 627 (1982) )). ¶82 Section 13-3623 is an alternative means statute, which refers to an offense that may be committed in multi......
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1 books & journal articles
  • Duress and the underlying felony.
    • United States
    • Journal of Criminal Law and Criminology Vol. 99 No. 4, September 2009
    • September 22, 2009
    ...(22) People v. Carp, No. 275084, 2008 Mich. App. LEXIS 2585 (Mich. Ct. App. Dec. 30, 2008). (23) Id. at *11-13. (24) State v. Encinas, 647 P.2d 624 (Ariz. 1982); People v. Al-Yousif, 206 P.3d 824 (Colo. Ct. App. 2006); Moore v. State, 697 N.E.2d 1268 (Ind. Ct. App. 1998); State v. Rumble, 6......

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