State v. Gerlaugh, s. 5216

• Decision Date: 19 October 1982
• Docket Number: 5214,Nos. 5216,s. 5216
• Citation: 654 P.2d 800,134 Ariz. 164
• Parties: STATE of Arizona, Appellee, v. Darrick Leonard GERLAUGH, Appellant.
• Court: Arizona Supreme Court

Page 800

654 P.2d 800

134 Ariz. 164

STATE of Arizona, Appellee, v. Darrick Leonard GERLAUGH, Appellant.

Nos. 5216, 5214.

Supreme Court of Arizona, In Banc.

Oct. 19, 1982.

Rehearing Denied Dec. 7, 1982.

Robert K. Corbin, Atty. Gen. by William J. Schafer, III and David R. Cole, Asst. Attys. Gen., Phoenix, for appellee.

William H. Feldhacker, Phoenix, for appellant.

HAYS, Justice.

After a joint trial, a jury found appellant Darrick Leonard Gerlaugh and codefendant Joseph Albert Encinas ¹ guilty 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 a term of 21 years each on the armed robbery and kidnapping offenses to run concurrently. These sentences were to run consecutively with a 35 years to life sentence for violation of probation. For the murder, appellant was sentenced to death. Appellant appealed these convictions and sentences, as well as the revocation of his probation and the sentence then imposed. We have jurisdiction pursuant to Ariz. Const. art. 6 § 5(3), and A.R.S. § 13-4031.

Appellant, Encinas and James Matthew Leisure had a few drinks at a friend's house in Chandler on the evening of January 24, 1980. They decided to hitchhike into Phoenix and to rob whomever offered them a ride. At about 11:30 p.m. they were picked up by Scott Schwartz, the victim. Soon afterwards appellant pulled out a gun which he pointed at Schwartz's head. He ordered Schwartz to drive a path which eventually ended on a dirt road on the outskirts of Mesa. The four men got out of the car. Appellant, brandishing the gun, demanded Schwartz's money. Schwartz was able to wrestle the gun away from appellant but his attempts to fire the gun were in vain. The gun was not loaded. Schwartz was then knocked down and beaten for ten or fifteen minutes. Appellant then decided to kill Schwartz so he could not identify his abductors. Encinas and Leisure were instructed to hold Schwartz on the road while appellant got back into the car and ran over Schwartz several times. The victim appeared to still be alive. Appellant took a screwdriver from the rear of the car with which he and Leisure stabbed the victim thirty to forty times.

The three men dragged the victim's body into a nearby field and attempted to conceal it with alfalfa. Then they drove off in Schwartz's car which soon broke down.

The men resumed hitchhiking and were picked up by Harry Roche at about 2:00 a.m. Appellant pulled the gun on Roche and instructed the route which Roche should drive. When they stopped, appellant ordered Roche to get out of the truck, but Roche was able to make a hasty escape.

Several days later Encinas related these events to a person who then went to the police. The three men were arrested; all of them confessed. Additional facts will be discussed as necessary.

Appellant asserts seven arguments on appeal:

1) Appellant's arrest was illegal and the trial court's failure to suppress evidence gained from the arrest was prejudicial error.

2) The trial court erred in denying appellant's motion to sever and his objection to admission of hearsay testimony. 3) The trial court's denial of appellant's motion requesting that the state choose the theory of guilt on which it proceeded was prejudicial because the charges were duplicitous.

4) The court's refusal to instruct on second degree murder was error since the instruction was reasonably supported by the evidence.

5) The photographs of the victim's body were improperly admitted because they were so gruesome as to influence the passions of the jury.

6) The court erroneously denied appellant's motion for a directed verdict of acquittal because the state did not establish a corpus delicti for either kidnapping or armed robbery prior to the admission of the statement.

7) Double jeopardy and A.R.S. § 13-116 preclude sentencing for felony murder after sentence for the underlying felony.

Additionally, appellant asks, without argument, that we vacate the revocation of his probation and the sentence imposed therein.

Lastly, after searching the record pursuant to A.R.S. § 13-4035, we found error in the use of Mr. Roche's post-hypnosis testimony. We address each of these issues below. However, we affirm the trial court's convictions and sentences.

WARRANTLESS ARREST

Appellant contends his warrantless arrest was illegal and the fruits of such arrest, i.e., his confession, should have been suppressed. The probable cause for the arrest is not questioned. At an evidentiary hearing the following facts were developed.

On January 31, 1980, at about 4:10 p.m. the Maricopa County police received information that appellant, Encinas and Leisure were suspects in the homicide of Scott Schwartz. At approximately 6:45 that evening four policemen approached the front door of appellant's home. Lieutenant Jones knocked on the door. Two of the officers testified they heard a girl's voice say "come in" as the door opened. Jones could not recall whether or not someone said come in. Beverly Gerlaugh, appellant's 15-year-old sister, testified that she opened the door but did not say come in. She also stated the policemen did not push her aside as they entered. They were not asked to leave until after they arrested appellant.

The trial court found the policemen were voluntarily admitted into appellant's home. Although the evidence is contradictory, the trial court is in the position to assess the credibility of the witnesses, to observe their demeanor and to determine possible bias or interests. On a motion to suppress, we view the facts in the light most favorable to the trial court's ruling. State v. Childs, 113 Ariz. 318, 553 P.2d 1192 (1976). The trial court's ruling on a motion to suppress will not be disturbed on appeal absent clear and manifest error. State v. Smith, 123 Ariz. 231, 599 P.2d 187 (1979).

Appellant cites Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), as holding that police cannot make a warrantless arrest in the home, absent exigent circumstances. However, Payton excludes cases where the entry was with the consent of the occupant. 445 U.S. at 582, 100 S.Ct. at 1378. Even were the instant case within the parameters of Payton, a special circumstance was present which permits the entry complained of. State v. Cook, 115 Ariz. 188, 189, 564 P.2d 877 (1977).

Further, appellant contends the police violated the "knock and announce" rule, A.R.S. § 13-3891 ² (previously A.R.S. § 13-1411). We do not find this rule applicable because the officers were neither refused admittance nor did they enter forcibly. We find appellant's arrest was legal and his confession was properly admitted. The trial court did not err in denying applicant's motion to suppress.

MOTION TO SEVER

At the joint trial the confessions of both appellant and Encinas were admitted into evidence. Appellant contends that the court erred in denying his motion to sever, and that his sixth-amendment right to confrontation has been denied. He cites Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). However, the Bruton rule does not apply when the confessions are interlocking. Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979); State v. Mata, 125 Ariz. 233, 609 P.2d 48, cert. denied, 449 U.S. 938, 101 S.Ct. 338, 66 L.Ed.2d 161 (1980).

In the instant case, the consequences of admitting Encinas's confession are not "devastating" as in Bruton because appellant's confession was also admitted. The inherent suspicion of a codefendant's confession is attenuated when the defendant corroborates his statement by "heaping the blame upon himself." Parker v. Randolph, supra, 442 U.S. at 73, 99 S.Ct. at 2139. The Parker court held admission of interlocking confessions with proper limiting instructions conforms to the requirements of the sixth and fourteenth amendments.

Additionally, appellant claims the confessions are not interlocking. Confessions interlock if they are consistent on the major elements of the crime and there is nothing in the codefendant's confession that implicates the defendant any more in the commission of the crime than did the defendant's own confession. State v. Mata, supra. The interlocking confession doctrine does not require absolute identity of statements. State v. Clovis, 127 Ariz. 75, 618 P.2d 245 (App.1980). The confessions given by appellant and Encinas were very similar. The trial court found the confessions were interlocking. The granting of a motion to sever is within the discretion of the trial court. State v. McGill, 119 Ariz. 329, 580 P.2d 1183 (1978). Additionally, the trial court in the instant case correctly instructed the jury that each statement could only be considered against the defendant who gave the statement. In light of this limiting instruction and the interlocking confessions, we find no error.

HEARSAY OBJECTION

At trial, appellant objected to the admission of the codefendant's statement through the testimony of the police detectives on the grounds it was hearsay. 17A A.R.S. Rules of Evidence, rule 801(d)(2)(A) provides:

(d) ... A statement is not hearsay if--

....

(2) ... The statement is offered against a party and is (A) his own statement ...

Here, the statement of Encinas was his own statement and it was offered against him. It is not hearsay. The court did not err in denying appellant's objection.

DUPLICITOUS INDICTMENT

In Count III of the indictment, appellant was charged with first degree murder in violation of A.R.S. § 13-1105. The indictment set forth two bases for this charge; the first was causing death with premeditation, the second, felony murder. Appellant contends these charges were duplicitous.

An indictment which charges two or more distinct crimes in a single count is duplicitous. State v. O'Brien, 123 Ariz. 578, 601 P.2d 341 (App.1979), 17 A.R.S. Rules of Criminal Procedure, rule 13.3(a). However, in Arizona, first-degree...