State v. Endreson
| Decision Date | 05 February 1973 |
| Docket Number | No. 2060,2060 |
| Citation | 109 Ariz. 117,506 P.2d 248 |
| Parties | STATE of Arizona, Appellee, v. Robert Dean ENDRESON, Appellant. |
| Court | Arizona Supreme Court |
O. J. Wilkinson, Jr., Phoenix, for appellant.
This is an appeal from a verdict and judgment of guilt to the crime of murder in the first degree (A.R.S. §§ 13--451, 13--452, 13--453).
We are called upon to determine:
1. Whether the motion to suppress evidence was improperly denied.
2. Whether the motion to suppress statements made by the defendant was improperly denied.
3. Whether the motions for change of venue were improperly denied.
4. Whether the motion for mistrial based upon improper voir dire by the County Attorney was improperly denied.
The pertinent facts are that the defendant, Robert Dean Endreson, was convicted on March 20, 1969 of the March 12, 1968 murder of Linda Hodge. On March 22, 1968, Officer David Arrelanes, of the Maricopa County Sheriff's Office, procured a warrant to search defendant's residence and car based upon an affidavit Further, on the evening of March 22, 1968, several law enforcement officials, consisting of members of the Maricopa County Sheriff's Office, the Phoenix Police Department, the Maricopa County Attorney's Office and two psychiatrists visited defendant at the federal detention center in Florence, Arizona. Officers Calles and Ysasi questioned the defendant alone for two and one half hours regarding the The defendant's motion to suppress both the items seized under the March 22 search warrant and the statements made by the defendant on the same day, were denied by the trial court.
presented to Justice of the Peace Stanley Kimball. 1 They proceeded to search the premises and vehicle on that same day and found bowling shoes, tags from bowling bags, a blue scarf, a zippo lighter and several keys belonging to the victim
murder of Linda Hodge. No counsel for the defendant was present or requested at this time. However, Officer Calles testified that the defendant was read his Miranda rights before the discussion commenced, and said he understood them and signed the card. The officers took notes on the interview which were later made a part of the official report. During this period of questioning, the defendant admitted killing Linda Hodge
Continuously, from the time Linda Hodge's body was discovered to the eve of the trial, the news media in the Phoenix area carried items concerning the defendant and his alleged victims, (Linda Hodge and another woman found slain in a convenience market.) As a result of this publicity, counsel for the defendant filed several applications for removal of the action to another county. The defendant's motions for change of venue were all denied by the trial court.
During individual voir dire some jurors did remember the case from the news media. Some, who connected the defendant with the convenience market incident were automatically excused. Of the twelve jurors finally empaneled, six of them admitted having preknowledge of the case through the news media, but stated they could base any verdict solely on the evidence presented.
Moreover, the Deputy County Attorney, representing the State, in his voir dire questions to the prospective jurors, consistently asked whether the individual jurors could give the death penalty under the specific circumstances of this case and whether they could follow the instruction by the court to weigh equally both sides, laymen and psychiatrists, regarding the sanity of the defendant. However, the issue of insanity was never raised during the trial. Of the twelve jurors who ultimately sat on the case, ten were asked at least one of these questions (regarding insanity or the death penalty). At the conclusion of all voir dire, the defendant moved for a mistrial, which was denied by the trial court.
The question presented is whether probable cause existed from the officer's affidavit for the magistrate to issue a search warrant under A.R.S. §§ 13--1443 and 13--1444, subsec. B (1956).
The defendant, relying heavily upon Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142, 145 (1964); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); United States v. Kandlis, 432 F.2d 132, 135 (9th Cir. 1970), contends that the facts set forth in the affidavit were insufficient to provide the magistrate with probable cause to issue a warrant. Those cases employed a reasonable man test for probable cause. It must be noted, however, that in each of those cases where the test was not satisfied, there was a search without a warrant. Here there was a warrant based on a police officer's affidavit.
It is well settled that where a search is based upon a magistrate's rather than a police officer's determination of probable cause, the reviewing court will accept evidence of a less judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant, and will sustain the judicial determination of probable cause so long as there was substantial basis for that conclusion. Aguilar v. Texas, 378 U.S. 108, 111, 84 S.Ct. 1509, 1512, 12 L.Ed.2d 723, 726 (1964); Jones v. United States, 362 U.S. 257, 270--271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697, 708 (1960). Moreover, there is a presumption in favor of the validity of a search warrant. State v. Kelly, 99 Ariz. 136, 140, 407 P.2d 95, 97 (1965).
As a result, we feel that the affidavit in the instant case, not only was interpreted 'The situation here does not differ markedly from other cases wherein this court and others, albeit usually without discussion, have upheld searches although the nexus between the items to be seized and the place to be searched rested not on direct observation, as in the normal search-and-seizure case, but on the type of crime, the nature of the missing items, the extent of the suspect's opportunity for concealment, and normal inferences as to where a criminal would be likely to hide stolen property.' United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir. 1970).
in a realistic fashion, United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), but complies with the well known requirements of Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) and Aguilar v. Texas, Supra. Therefore, we hold that the trial judge in the instant case did not abuse his discretion by denying the motion to suppress, since probable cause existed based on the affidavit of Officer Arrellanes. See State v. Boyer, 106 Ariz. 32, 470 P.2d 439 (1970). Further, the affidavit indicated that there would be certain items belonging to the victim that would constitute evidence of the murder. It is well known that:
See United States v. Teller, 412 F.2d 374, 377--378 (7th Cir. 1969), cert. denied, 402 U.S. 949, 91 S.Ct. 1603, 1604, 29 L.Ed.2d 118 (1971); Aron v. United States, 382 F.2d 965, 971 (8th Cir. 1967); Porter v. United States, 335 F.2d 602, (9th Cir. 1964), cert. denied, 379 U.S. 983, 85 S.Ct. 695, 13 L.Ed.2d
It should not have been granted '(T)he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.' Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196--1197, 10 L.Ed.2d 215, 218 (1963).
In the instant case, it is true that the officers deleted several statements made by the defendant. The defendant, however, makes no offer of proof regarding what was missing nor whether the omissions were material to proving his innocence.
As we said in State v. Maloney, 105 Ariz. 348, 464 P.2d 793, cert. denied, 400 U.S. 841, 91 S.Ct. 82, 27 L.Ed.2d 75 (1970), 105 Ariz. at 352, 464 P.2d at 797.
The defendant Endreson's alleged slayings received extensive coverage by the news media, which continued from the time Linda Hodge's body was found through the time of trial.
It is well settled that a change of venue is not granted as a matter of right; it is within the sound discretion of the trial judge, and his ruling will not be disturbed on appeal unless a clear abuse of discretion appears and is shown to be prejudicial to defendant. State v. Schmid, 107 Ariz. 191, 193, 484 P.2d 187, 189 (1971); State v. Narten, 99 Ariz. 116, 407 P.2d 81 (1965), cert. denied, 384 U.S. 1008, 86 S.Ct. 1985, 16 L.Ed.2d 1021 (1966); State v. Woolery, 93 Ariz. 76, 378 P.2d 751 (1963); State v. McGee, 91 Ariz. 101, 370 P.2d 261, cert. denied, 371 U.S. 844, 83 S.Ct. 75, 9 L.Ed.2d 79 (1962).
In support of defendant's contention that the trial judge abused his discretion in denying defendant's motions the following cases were cited: Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 Moreover, Rule 220, Rules of Criminal Procedure, 17 A.R.S. expressly provides that the fact that a person, called as a juror, 'has formed an opinion or impression based * * * upon news reports, about the truth of which he has expressed no opinion shall not disqualify him to serve as a juror in such action, if he upon oath states that he believes he can fairly and impartially render a verdict therein in accordance with the law and the evidence, and the court is satisfied with the truth of such statement.'
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Summerlin v. Stewart
...declared the Arizona death penalty statute to be unconstitutional under the Eighth and Fourteenth Amendments. See State v. Endreson, 109 Ariz. 117, 506 P.2d 248, 254 (1973). The Arizona court acknowledged, after examining the structure of the relevant Arizona criminal statutes, that the Sup......
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State v. Moody
...that "a defendant who invited error at trial may not then assign the same as error on appeal." See, e.g., State v. Endreson, 109 Ariz. 117, 122-23, 506 P.2d 248, 253-54 (1973). We can envision few situations in which a defendant can be said to "invite" an error more condemningly than by ask......
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State v. Gretzler
...v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); State v. Smith, 116 Ariz. 387, 569 P.2d 817 (1977); State v. Endreson, 109 Ariz. 117, 506 P.2d 248 (1973) (half of trial jury had knowledge of the case); State v. Schmid, 109 Ariz. 349, 509 P.2d 619 (1973) (all jurors had knowl......
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State v. Moody, Arizona Supreme Court No. CR-02-0044-AP (AZ 8/8/2004)
...that "a defendant who invited error at trial may not then assign the same as error on appeal." See, e.g., State v. Endreson, 109 Ariz. 117, 122-23, 506 P.2d 248, 253-54 (1973). We can envision few situations in which a defendant can be said to "invite" an error more condemningly than by ask......