State v. Ferguson

Decision Date25 April 1978
Docket NumberNos. 3874,4025,s. 3874
Citation579 P.2d 559,119 Ariz. 55
PartiesSTATE of Arizona, Appellee, v. James Franklin FERGUSON, Appellant.
CourtArizona Supreme Court
Bruce E. Babbitt, Former Atty. Gen., John A. LaSota, Jr., Atty. Gen. by William J. Schafer III, Diane DeBrosse Hienton and Crane McClennen, Asst. Attys. Gen., Phoenix, for appellee

J. Douglas McVay, Phoenix, for appellant.

HAYS, Justice.

The appellant, James Franklin Ferguson, and a codefendant, Donnie Lyle Davis, were charged by information with first degree murder and armed robbery. Appellant submitted the determination of his guilt or innocence to the court upon a stipulated record. The trial court found appellant guilty of both charges and appellant was sentenced to serve 25 to 50 years for the armed robbery and 25 years to life for first degree murder, sentences to run consecutively. This appeal followed. The Supreme Court has jurisdiction pursuant to A.R.S. §§ 13-1711 and 13-1713.

A few months after Ferguson was sentenced, the trial of his codefendant Davis began. Ferguson was called as a witness for the prosecution, but he refused to testify even after the trial judge ordered that he be given immunity for his testimony. Ferguson claimed that answering questions might deprive him of life without due process of law. The trial court told Ferguson that it would direct the warden of the Arizona State Prison to place Ferguson in "protective custody" if the trial court was persuaded that Ferguson's life was in danger. Appellant still refused to answer any questions and was held in contempt.

Ferguson explained to the trial court that he had to serve a minimum of 25 years at the Arizona State Prison and that he had learned that it was a "convict's law" that persons who testify against another are marked for death. He stated that in his short time at the prison, he had already heard about some prisoners who were stabbed even though they were in protective custody. Ferguson also described the bleak condition of the cells used for protective custody and the extreme limitations upon one's liberty while in protective custody. Prisoners in protective custody cannot take part in educational programs or recreation. Ferguson testified that he did not believe he could remain sane if he had to serve his 25-year minimum sentence in protective custody.

The state offered no evidence contradicting Ferguson's testimony concerning conditions at the prison or the danger to prisoners who testify for the state.

The trial court reaffirmed its finding of contempt and sentenced Ferguson to six months in the Maricopa County Jail. The trial court ordered that this sentence be consecutive to the sentences previously imposed, that the contempt sentence begin as of the date of the contumacious conduct, and that Ferguson be retained at the Maricopa County Jail for the immediate service of the contempt sentence. The warden of the State Prison was ordered not to credit the time served for contempt against Ferguson's other sentences. Ferguson has appealed from the judgment of contempt and from all the orders relating to the contempt sentence. This appeal was consolidated with the appeal in the armed robbery and murder case.


The conviction of contempt and the sentence must be upheld. We are aware of the problems at the Arizona State Prison. Although efforts are being made to take corrective measures at the prison, we realize that it may be some time before conditions are fully improved. However,

we do not believe that the prison's present problems change the law of contempt. When Ferguson refused to testify at Davis's trial, it was proper for the trial court to find him in contempt and to sentence him to six months in the county jail. A.R.S. §§ 12-861, 12-863 and 13-341 and 17 A.R.S. Rules of Criminal Procedure, rule 33. However, the trial court erred in ordering Ferguson to serve the sentence for contempt before returning to the state prison to complete the sentences for murder and armed robbery. When the trial court ordered Ferguson to jail for contempt, it modified the murder and armed robbery sentences by delaying their completion for six months. By the time Ferguson had been convicted of contempt, a notice of appeal had already been filed in the murder and armed robbery case. Once a notice of appeal has been filed, the trial court cannot modify a sentence because the trial court no longer has jurisdiction over the matter. Eyman v. Cumbo, 99 Ariz. 8, 405 P.2d 889 (1965). Any time served on the contempt sentence must be credited toward the murder and armed robbery sentences. Pursuant to our powers under A.R.S. § 13-1717, the sentence of six months in jail is imposed to be served at the conclusion of the sentence or sentences now being served in the Arizona State Prison.


The record indicates that on the evening of July 2, 1976, Ferguson and Donnie Lyle Davis were drinking at the Dancing Sunshine Bar on East McDowell Road in Phoenix. Ferguson suggested that they obtain some money by calling a cab, having the driver drive out to the desert, then shooting the driver and taking his money. Either Davis or Ferguson did call for a cab, and Lorenz answered the call. Lorenz was instructed to drive to an isolated area in Maricopa County. Ferguson asked him to stop because he needed to urinate. Ferguson got out of the cab, drew a gun, and stood behind Lorenz who was still seated at the wheel of the cab. Ferguson then shot Lorenz once in the head. Apparently Lorenz was not threatened before he was shot; Ferguson just suddenly shot him without any warning.

Lorenz was then taken from the cab and laid on the ground. Ferguson turned Lorenz over and started to go through his pockets looking for money, but didn't complete this search. Ferguson then told Davis to get in the cab and act like a passenger. Ferguson drove the cab away, leaving the wounded Lorenz lying at the edge of the little traveled road. Lorenz was discovered later that night and taken to a hospital where he died soon afterwards.

Two or three days after July 2, 1976, Ferguson sold a .38-caliber revolver. Sheriff's deputies recovered the revolver. Tests indicated that the gun could have fired the bullet taken from Lorenz's skull after his death. Ferguson told the man to whom he had sold the gun that he had "wasted a dude."


Appellant argues that his confession should have been suppressed as the fruit of an unlawful arrest because officers did not have an arrest warrant when they entered a home in which he was a guest to arrest him.

The following facts are pertinent to a determination of lawfulness of appellant's arrest:

About two days before Ferguson's arrest, local officers received a call from California officers who said that a person had contacted them offering to give information about a homicide in the Phoenix area. Phoenix officers flew to California and returned with the "informer", Donnie Davis, who later was charged as a codefendant in the Lorenz murder. Davis came to Phoenix for questioning about 24 hours before Ferguson's arrest. Davis told police that Ferguson had simply walked up behind Lorenz and shot him without any warning. He also said that Ferguson would not allow himself to be taken alive and that Ferguson's wife was so "moonstruck" on him that she would do anything to help him resist arrest. Davis had associated closely with the Fergusons both before and after the crime and apparently had even lived with them. Officers believed Ferguson was likely to use violence to resist arrest.

A few hours after the Davis interview, Ferguson's picture and a public plea for any information regarding his whereabouts was broadcast on the 6:00 P.M. TV news. Shortly thereafter, the Mesa police received a call from a person who had knowledge of Ferguson. It was approximately 7:00 P.M. by the time this information was relayed to the sheriff's officers investigating the Lorenz murder; the officers were contacted at their homes. These officers went to the sheriff's department and then followed up the telephone tip by interviewing a Mr. Christie in east Phoenix.

Christie told officers that he had a recent telephone number for Ferguson. At the conclusion of the Christie interview, officers contacted the telephone company to determine what address the telephone number served. By this time it was close to 9:00 P.M. Since there were only three sheriff's officers available at this time, two of them were dispatched to stake out the address (a residence) while support personnel from the Phoenix Police Department were requested; by the time support units arrived at the address, it was nearly 10:00 P.M.

Christie was asked to call the number Ferguson had given him to make sure that Ferguson was inside the residence. There was still some doubt regarding Ferguson's whereabouts because Christie told officers he had taken the Fergusons to the bus station and given them money to leave town. Davis also said Ferguson had left town. Confirmation that Ferguson was in the house reached the officers waiting outside about 10:00 P.M. Ferguson was arrested about 10:15 P.M.

To effect the arrest, officers knocked on the front door of the residence, identified themselves, and stated that they were seeking Ferguson. The owner (or renter) of the home, Dave Anthony, told officers that Ferguson was not there; officers entered and found Ferguson and his wife hiding behind a baby crib in a dark bedroom.

Arizona has two statutes which in relevant part provide:

§ 13-1403. Arrest by officer without warrant

A peace officer may, without a warrant, arrest a person:

1. When he has probable cause to believe that a felony has been committed and probable cause to believe the person to be arrested has committed the felony.

§ 13-1411. Right of officer to break into building

An officer, in order to make an arrest...

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