State v. Lawson

• Citation: 144 Ariz. 547,698 P.2d 1266
• Decision Date: 23 April 1985
• Docket Number: No. 6124,6124
• Parties: STATE of Arizona, Appellee, v. Calvin Arthur LAWSON, Appellant.
• Court: Supreme Court of Arizona

Page 1266

698 P.2d 1266

144 Ariz. 547

STATE of Arizona, Appellee, v. Calvin Arthur LAWSON, Appellant.

No. 6124.

Supreme Court of Arizona In Banc.

April 23, 1985.

Robert K. Corbin, Atty. Gen. by William J. Schafer III and Galen H. Wilkes, Asst. Attys. Gen., Phoenix, for appellee.

Polley, Polley & Elledge by Karl Elledge, Sierra Vista, for appellant.

CAMERON, Justice.

Defendant, Calvin Arthur Lawson, was convicted and adjudged guilty of first degree murder, A.R.S. § 13-1105(A)(2); burglary in the second degree, A.R.S. § 13-1507; kidnapping, A.R.S. §§ 13-1304(A)(3) and (4); and robbery, A.R.S. § 13-1902. Defendant was sentenced to life imprisonment without possibility of parole for twenty-five years for the murder, A.R.S. § 13-703; ten years for the burglary charge, §§ 13-701, -702; fourteen years for the kidnapping charge, §§ 13-701, -702; and five years for the robbery, §§ 13-701, -702. All sentences were to run concurrently. We have jurisdiction pursuant to Ariz. Const. Art. 6 § 5(3) and A.R.S. §§ 13-4031, -4035. We affirm.

Defendant Lawson was tried jointly with Paul A. Wiley. The facts in the instant case are the same as those set forth in State v. Wiley, 144 Ariz. 525, 698 P.2d 1244 filed this day. They need not be repeated here.

Although defendant raises essentially different arguments from his co-defendant, there are several identical issues. Because we have disposed of them in Wiley's case, we need not consider them again. We note only that, as in Wiley's case, we found no error as to the issues raised. We consider only the following questions on appeal:

1. Did the police have the requisite quantum of suspicion when they first stopped defendant at 4:30 and then when they later arrested him?

2. Was defendant's statement taken in violation of his fifth amendment privilege against self-incrimination?

3. Did the trial court improperly refuse to sever the cases?

4. Was defendant's sixth amendment right to confront his accusers violated by the trial court's failure to sever the cases?

5. Did the trial court improperly instruct the jury concerning the causation elements of first degree murder?

THE ARREST

Defendant and his two accomplices were stopped at 4:30 P.M., let go, and then stopped and arrested at 7:30 P.M. Defendant now argues that both stops were illegal. He claims that the police did not have the "reasonable suspicion" necessary to make the first investigative stop. Defendant also contends that the police did not have "probable cause" to justify the eventual arrest. Defendant, therefore, reasons that any evidence collected at either time was illegally seized and thus inadmissible at trial. We do not agree.

1. The 4:30 Stop

The events that led to the initial stop follow: During the afternoon of 10 May 1983, defendant, Wiley and Brown were driving west from New Mexico into Arizona in an older model, blue Ford Falcon, with Virginia license plate number CYP-114. The car was missing a front grille. Wiley was driving. In order to enter the state, they had to stop at the San Simeon agricultural inspection station. At approximately 2:50, the Agricultural Inspector on duty at the station received complaints from tourists that an old Falcon with Virginia license plate number CYP-114 had been weaving along the highway. She saw a car a few minutes later, weaving as it came to the station. It was a "beat-up looking, older model Falcon." When she and her supervisor made their inspection, she noticed that the occupants, two black males and a white female, seemed "giddy." She also observed that the woman was holding a beer can. The Agricultural Inspector wrote down the license number (CYP-114 VA) and notified the Department of Public Safety. After the car left the station, a truck pulled in. The driver informed the Inspector that the people in the car had attempted to sell him drugs and that the female passenger had offered sexual services. He had written down the license plate number and it matched that of Wiley's car. The Inspector then contacted the Department of Public Safety (DPS) and the Cochise County Sheriff's Office in Wilcox, informing them of both the truck driver's allegations and the possibility of a DWI. Wilcox is approximately 80 miles from San Simeon.

At approximately 4:00 P.M. Deputies Allaire and Wolsagle, from the Wilcox sheriff's office, waited at Milepost 344 in Wilcox for the car to pass. While they were waiting, the truck driver stopped and told them of his earlier experiences with the passengers in the car. He described them as two black males and one white female. Because the officers thought that the car might have stopped in Bowie, approximately 30 miles west of San Simeon and 50 miles east of Wilcox, they radioed this information to the deputy there.

Several minutes later, as the deputies began driving toward Bowie, they saw the car--an older model Ford Falcon with a Virginia license plate number CYP-114--carrying two black males and a white female. They stopped the car and checked the identification of all three passengers. At that time the police noticed some "roachclips" and open beer cans. They also saw a pair of binoculars, turquoise jewelry and a hunting knife. One of the officers conducted a field sobriety test on the driver. The officers then helped the three jump start the car and allowed them to drive away. The entire stop took somewhere between thirty and forty-five minutes.

Defendant maintains that this stop was improper. He argues that the information given to the police was not sufficient to satisfy the test enunciated in United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) and adopted by this court in State v. Graciano, 134 Ariz. 35, 653 P.2d 683 (1982). Under the Cortez analysis, in order to determine whether an investigatory stop was proper, we must look at all the circumstances to determine whether they "raise a justifiable suspicion that the particular individual to be detained is involved in criminal activity." Id. at 37, 653 P.2d at 685. Defendant argues that because the officers relied essentially on hearsay concerning activities that occurred out of state, they did not have a justifiable suspicion to warrant an investigative stop. We do not agree. First, that the factors relied upon were actions occurring out of state is not necessarily defeating. The purpose of an investigatory stop is to determine, not only whether a crime has been committed, but whether the person stopped is, or is about to be, engaged in criminal activity. See Cortez, 449 U.S. at 417, 101 S.Ct. at 695, 66 L.Ed.2d at 621. Here the deputies had reason to believe that defendant was committing or was about to commit a crime. They were told that the passengers in the car were transporting drugs, had engaged in acts of solicitation and that the driver may have been alcohol impaired. These factors gave rise to a reasonable inference that defendant and his friends were continuing these activities once inside Arizona. Thus, the police were empowered to investigate.

Second, we do not find, as defendant contends, that the deputies' reliance upon hearsay created an irrebuttable presumption that they did not possess an articulable suspicion sufficient to warrant an investigatory stop. The United States Supreme Court has held that hearsay information is sufficient to support a finding of probable cause which will justify an arrest if that information is reliable. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Because an arrest is far more intrusive than an investigatory stop, we find no reason not to extend the rationale of these cases to an investigatory stop. As long as the hearsay contains sufficient indicia of reliability, it may, by itself, suffice to supply the necessary information creating a justifiable suspicion that a person is committing, or is about to commit, a crime.

In the instant case, we find that the hearsay was reliable. First, the Inspector informed the police of her own personal observations: the car was weaving; a passenger was drinking beer; all three appeared "giddy" and were nonresponsive to questions asked. We believe the Agricultural Inspector was a reliable source.

Additionally, there was the information supplied by the truck driver. Again, we believe that he was a reliable informant. As we have stated in the past "[w]here an ordinary citizen volunteers information which he has come upon in the ordinary course of his affairs, completely free from any possible gain from furnishing the information, reliability is enhanced." State ex rel. Flournoy v. Wren, 108 Ariz. 356, 364, 498 P.2d 444, 452 (1972); see also State v. Diffenderfer, 120 Ariz. 404, 586 P.2d 653 (1978) (information supplied by a citizen who voluntarily comes forward to aid law enforcement officers is presumed to be reliable).

Because we find that the information was reliable and sufficient to create a justifiable suspicion, we find no error.

2. The 7:30 Arrest

The facts leading up to the arrest are as follows: At approximately 6:35, Deputy Michael S. Rafferty received a call to go to Steven Bayne's house in Bowie, Arizona. He was told that the Fire Department, while putting out a fire, had found a body inside the house. The hands and feet were bound. When Rafferty arrived there, he talked with Carmelo Sanchez, who stated that he had seen a strange car parked in the street behind decedent's house. He noticed the car because it was parked in an unusual spot and because the woman sitting in it did not appear to be from Bowie. Mr. Sanchez described the car as a "smaller to middle-size, dark bluish car, an older one." He also said that he had seen two black men around the car. These men were obviously strangers because no blacks lived in Bowie at that time. The car had been parked about fifty feet from Bayne's house and had left a tire track in the dirt. Deputy Rafferty noticed a path going from the tire track to the area of the house. Because...