State v. Johnson, 2
| Decision Date | 30 January 1979 |
| Docket Number | No. 2,CA-CR,2 |
| Parties | The STATE of Arizona, Appellee, v. Donald Lee JOHNSON, Appellant. 1502. |
| Court | Arizona Court of Appeals |
Appellant, convicted by a jury of three counts of attempted murder, was given concurrent sentences in the Arizona State Prison of not less than five nor more than 12 years. He contends his convictions should be reversed because the trial court refused to suppress tape recordings and video tapes of conversations he had with an FBI agent who was posing as a "hit man" and because the trial court permitted the jury to hear part of a conversation in which he stated that he shot or shot at someone three years before. We affirm.
Appellant wanted his parents and grandmother killed so he could inherit their money. He was put in contact with a "hit man" who was in reality an FBI agent. The conversations between the FBI agent and appellant were recorded either on tape or on video tape with the permission of the agent and the FBI and without appellant's knowledge. Appellant contends that the recordings were not admissible into evidence because no ex parte order for wiretapping or eavesdropping was secured pursuant to A.R.S. Sec. 13-1057. We do not agree.
A.R.S. Sec. 13-1052 provides:
"Except as provided in § 13-1059, a person is guilty of a felony who being:
1. Not a sender or receiver of a telephone or telegraph communication, wilfully and by means of an instrument or device overhears or records a telephone or telegraph communication, or aids, authorizes, employs, procures or permits another to so do, Without the consent of either a sender or receiver thereof ; or
2. Not present during a conversation or discussion, wilfully and by means of an instrument or device overhears or records such conversation or discussion, or aids, authorizes, employs, procures or permits another to so do, Without the consent of a party to such conversation or discussion; * * *
* * * " (Emphasis added)
As can be seen from the statute, it is not applicable if there is consent on the part of a sender, receiver or party to the conversation.
A.R.S. Sec. 13-1059 provides an exemption from A.R.S. Sec. 13-1052 if an ex parte order is obtained pursuant to Sec. 13-1057. However, it is quite clear that no court order is required if the recording is made with the consent of one of the parties to the conversation or telephone communication.
In a video taped conversation at the Granada Royale...
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