State v. Grange
| Decision Date | 11 December 1975 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 25 Ariz.App. 290,543 P.2d 128 |
| Parties | STATE of Arizona, Appellee, v. Jonathan Collins GRANGE, Appellant. 973. |
| Court | Arizona Court of Appeals |
This is an appeal from judgments of conviction and sentences for assault with a deadly weapon, A.R.S. § 13--249(B), and conspiracy to assault and/or rob, A.R.S. § 13--331(A). Appellant was given a sentence of 10 to 20 years on the assault conviction and of 5 to 15 years on the conspiracy conviction, sentences to run concurrently. He had raised four questions for our consideration on appeal:
1) Was the conspiracy conviction based on the uncorroborated evidence of a co-conspirator?
2) Was appellant's statement made to an F.B.I. agent freely, voluntarily, and intelligently given?
3) Does the record support the conviction?
4) Is the sentence proper?
The facts necessary to consider the questions raised by appellant indicate that on the night of July 14, 1974 two undercover-narcotics agents were injured when a shot hit their car as it traveled in an isolated area of Yavapai County on the Dugas Road, near Dugas, Arizona. For his participation in this, appellant was convicted of assault with a deadly weapon and conspiracy to rob and/or assault the two agents. One of the injured agents, Mike Tanaka, was an officer of the Honolulu, Hawaii Police Department. How he came to be in Arizona in an official capacity is an interesting intrigue. In June of 1974 appellant was in Honolulu where he met with Tanaka, an undercover narcotics officer, and Tanaka purchased several pounds of marijuana from appellant. As a result of this meeting and transaction the two parties discussed the possibility of Tanaka purchasing a quantity of cocaine from appellant. Appellant returned to Arizona and the cocaine transaction was further discussed by telephone. The deal was ultimately agreed upon for the sale of three-pounds of cocaine for approximately $36,000 to be completed in Arizona. The evidence indicates that appellant Grange had been robbed or 'ripped off' of either some Indian jewelry or a quantity of marijuana (depending on the testimony) while in Hawaii and he was under the impression that Tanaka or someone associated with him was responsible. Needless to say, Grange did not know of Tanaka's police status, and referred to him as being a 'syndicate' man.
Tanaka made contact with the Federal Drug Enforcement Administration (DEA) when the cocaine deal was finalized by telephone, and eventually flew to Phoenix, Arizona, on July 11, 1974 as Grange had apparently instructed him by telephone. On arrival in Phoenix, Tanaka took possession of an envelope from the Hertz car rental counter at the airport that had been left for him by Grange's now associate, Brett Byrd. The envelope contained a map of a proposed meeting place at Cherry, Arizona, a note to Tanaka from Grange, and a 'taste' of the cocaine.
Grange had met Byrd through his employment at a Phoenix hotel. Grange, Byrd, and a co-defendant, Christopher Stillman, became companions and were living at this time at a ranch owned by Stillman at Cherry, Arizona. The apparent plan of the three was to rob Tanaka and his associates (now DEA agents) of the money to be used to purchase the cocaine. Grange would thereby recover his loss in Hawaii, and according to Byrd's testimony, Byrd was to be paid $500 for his participation. The three defendants purchased two-way radios and a shotgun and proceeded to Cherry where other weapons belonging to Grange could be obtained.
Tanaka and other DEA agents proceeded to Cherry in accordance with the instructions in the envelope, and there met Grange. Grange accompanied them to a nearby restaurant where they showed him the $36,000 for the cocaine purchase. The parties agreed to meet later that evening to complete the transaction. This meeting fell through, apparently when Grange and his two associates saw an airplane overhead at the Cherry Creek Lodge where they were then staying. They thought the airplane was carrying police agents. Tanaka was telephoned by Grange at Tanaka's hotel in Phoenix the following Monday, July 14, 1974. According to Grange's new directions Tanaka and the other DEA agents were to travel to the Dugas Road area that evening for the sale to be completed.
Stillman was the driver of the car that brought Grange and Byrd to the isolated spot on Dugas Road that evening and he was to leave and return later to pick them up. Byrd was armed with the shotgun and Grange was armed with a .30--06 rifle and a .357 magnum pistol. They took up positions on opposite sides of the dirt and gravel road to await Tanaka.
The DEA agents and Tanaka meanwhile proceeded to the designated area in three cars. With Tanaka in his rental car was Agent Martinez of the DEA who was injured with Tanaka. The agents proceeded down the road, saw no one, and were returning along the same road when the events causing their injuries occurred. Tanaka and Martinez were in the lead car, followed by another car with one DEA agent, and a third car followed at some distance behind. As the car containing Tanaka and Martinez passed his position on the road, Byrd testified that he suspected that these were narcotics agents and yelled to Grange on the opposite side of the road not to shoot. It was dark, and Byrd testified that he could not see Grange. A shot rang out, entering the roof of the lead vehicle, resulting in wounds to both Tanaka and Agent Martinez. The cars sped away, and Tanaka and Martinez were later flown to a Phoenix hospital. Byrd was later picked up on Dugas Road by Stillman, apparently as planned, and these two were later stopped and arrested that night in the vicinity by Yavapai County Sheriff's deputies who found the shotgun in Stillman's car. Grange apparently left the scene on foot and was arrested the next day some 17 to 20 miles away and 18 hours later. Byrd cooperated with the authorities in the investigation and gave statements implicating Grange. The F.B.I. originally took Grange into custody for assaulting a federal officer, but later it was determined that he would be tried on State charges. Byrd and Stillman reached agreements with the prosecutor's office and entered guilty pleas to reduced charges. Grange was tried to a jury and convicted. He did not testify.
It was determined that a high-powered rifle and fired the shot which injured Tanaka and Martinez, but the .30--06 that Grange carried was never found, although a shell casing was found at the scene of the shooting. Grange's hat was found nearby and a .357 magnum pistol similar to the one Grange owned, a blue jacket belonging to Grange, and other items were found a few miles away.
Grange was taken into custody by Sheriff's deputies, transported to Mayer, Arizona, and within minutes turned over to the F.B.I. agents who transported him to Phoenix. On the trip to Phoenix, Grange talked with the F.B.I. agents after signing a waiver of constitutional rights form given him earlier by the F.B.I. at Mayer. His statement to the F.B.I. agent in the car on the way to Phoenix indicated that he had been in the Dugas Road area the previous evening, that he had owned the weapons in question, and that he had handled the weapons that day. When asked about the shooting he stated that he had 'never intentionally shot at any federal officers.'
Appellant first asserts that the testimony of the alleged co-conspirator, Byrd, was not sufficiently corroborated and his conviction can therefore not stand because it was based entirely on Byrd's testimony. As noted previously, appellant was convicted of conspiracy to rob and/or assault under A.R.S. § 13--331(A). A.R.S. § 13--136 states:
Our cases have interpreted that section to mean that independent evidence that tends in a slight way to connect a defendant with a conspiracy is enough to sustain the conviction. State v. Elias, 111 Ariz. 195, 526 P.2d 734 (1974); State v. Sheldon, 91 Ariz. 73, 369 P.2d 917 (1962); State v. Smith, 96 Ariz. 322, 395 P.2d 362 (1964). As our Supreme Court said in the Sheldon case, Supra:
'The statute's (Section 13--136) primary requirement is that there be some evidence in the case which is legally sufficient to lend credibility to the statements of the accomplice. It must be evidence which will afford the trier of fact a sufficient basis for Believing the testimony of the accomplice. But it need not corroborate any particular part of the accomplice's testimony. (citations omitted) Nor need the 'corroboration * * * be by direct evidence (for) the entire conduct of the defendant may be looked to for corroborating circumstances and if from those circumstances, his connection with the crime may be fairly inferred, the corroboration is sufficient.'
* * *
* * *
(emphasis theirs) 91 Ariz. 79, 369 P.2d 921, 922.
We turn now to the evidence that corroborated Byrd's testimony. F.B.I. Agent Chenoweth, who questioned Grange, testified that Grange discussed the Hawaiian 'rip-off' of the Indian jewelry and that Grange held Tanaka responsible. Tanaka testified concerning calls he received in Hawaii from Grange in Arizona regarding...
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