State v. Leslie

Citation147 Ariz. 38,708 P.2d 719
Decision Date09 October 1985
Docket NumberNo. 5806-2,5806-2
PartiesSTATE of Arizona, Appellee, v. Paul Clyde LESLIE, Appellant.
CourtSupreme Court of Arizona
Robert K. Corbin, Atty. Gen. by William J. Schafer III and Georgia Ellexson, Asst. Attys. Gen., Phoenix, for appellee

Ross P. Lee, Maricopa County Public Defender by Dennis Dairman and James Edgar, Deputy Public Defenders, Phoenix, for appellant.

CAMERON, Justice.

Defendant, Paul Clyde Leslie, was convicted and adjudged guilty of first degree murder, A.R.S. § 13-1105. He was sentenced to death pursuant to A.R.S. § 13-703. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. §§ 13-4031 and -4035.

We must decide the following issues:

1. Did the trial court properly find that the police had probable cause to arrest defendant?

2. Was defendant denied his right to a speedy trial pursuant to the sixth amendment of the United States Constitution?

3. Did the trial court err in charging the jury by:

a. failing to give a requested Willits instruction;

b. failing to give defendant's requested instruction that burglary is a lesser-included offense of felony murder;

c. failing to inform the jury that no unfavorable inference could be drawn from the failure of a witness to testify?

4. Was the death penalty properly imposed?

The facts follow. On 2 April 1981, the victim, Mrs. Mary V. Rabb, age 70, lived alone in Phoenix, Arizona. One of her neighbors had seen and talked with her that morning at around 7:00 A.M. when the two of them went for a brief walk. Rabb returned home at approximately 7:10. Sometime between 11:00 and 12:00 noon, the two women who lived next door to her noticed that her dog was running loose outside. Because this was unusual, they went to her house to see if everything was all right. Rabb did not come to the door when they knocked and they noticed that her car, a new white Oldsmobile, was gone. They returned to the house at 5:00 P.M., this time entering the premises. Mrs. Rabb's dead body was discovered in the garage. She had been hit approximately twenty times around her head resulting in her death. Several rugs were covering the victim's body and there was a small, blood-stained ax found in the garage.

On the morning of April 2, 1981, defendant went to the Biltmore Gold and Silver, located several miles from the victim's home, and attempted to pawn several pieces of the victim's silver. When the owner of the store asked for his car registration, defendant left the store and drove away in a new white Oldsmobile, leaving behind the silver and his driver's license. Shortly after noon, defendant picked up two women hitchhikers at 35th Avenue and Buckeye Road. He was wearing women's shoes. One of the women took from the console between the two front seats a ring which was later determined to belong to the victim.

Defendant and his two passengers drove west toward California. When officers at Hope, Arizona, in what was then Yuma County, Arizona, attempted to arrest him for speeding, he exited the freeway, stopped at a gas station, got out of the car and ran, leaving the two women behind. The officers impounded the car and ascertained that it belonged to the victim. Several hours later, defendant was arrested.

At trial, defendant took the stand on his own behalf. He admitted having stolen the silver from Mrs. Rabb's house but denied killing her. He stated that he never saw her that day. He also stated, without offering an explanation, that he had put on one of her shirts and a pair of her shoes. The police were unable to find the shirt and shoes that he discarded. Defendant was found guilty by a jury on 9 February 1984. From his conviction and sentence, he appeals. He also filed for review of the denial of his petition for post-conviction relief pursuant to Rule 32, Ariz.R.Crim.P., 17 A.R.S. We consolidated the two matters for determination.


Defendant first argues that the trial court erred in failing to grant the motion to suppress evidence obtained as a result of his illegal arrest.

On 2 April 1981 at 2:45 P.M., D.P.S. Officer Brad Watkins saw a white 1981 Oldsmobile sedan containing at least two people travelling on Interstate 10 near Hope in the Salome-Vicksburg-Wenden area of Yuma County, Arizona. Because the car was exceeding the speed limit, the officer attempted to pull it over. The car exited at Vicksburg Road and stopped at an Arco gas station. When the officer caught up with the vehicle, he saw two women who were attempting to run. He stopped them and they informed him that the car had been driven by a dark haired Mexican or Oriental male, standing approximately 5'8" and wearing dark clothing. The officer ran a license check on the car and determined that it was registered to the victim. The car had not, at that time, been reported stolen. Sergeant Harold and Deputy Pearson of the Yuma County Sheriff's Office also arrived at the Arco station and Officer Watkins related to them the conversation with the women. The women were then transported to the Sheriff's substation.

At approximately 6:00 P.M., the Yuma County Sheriff's Office received a call that a Mexican looking male wearing dark blue When defendant arrived at the car, Sergeant Harold asked him for identification; he produced a Hawaii driver's license. Officer Pearson then got out of the car and talked to the woman who had telephoned the police about the burglary. She identified defendant as the man she had seen breaking into the trailer. Pearson also inspected the trailer and saw a broken window in the door of the trailer and shoe prints around the door area.

clothing was trying to break into a trailer at that same truck stop. Pearson and Harold arrived at the truck stop and saw defendant standing there. He fit the description given them and they called him over to the car. As he was walking toward them, Sergeant Gosch of the Yuma County Sheriff's Office arrived. He informed the officers that the Phoenix Police Department was investigating a homicide at the home of the owner of the vehicle that Officer Watkins had stopped earlier.

While Officer Pearson was making his inspection, Sergeant Harold talked with defendant. Because Sergeant Harold died prior to the suppression hearing, no testimony was offered as to their conversation. Sergeant Gosch testified, however, that defendant removed some items from his pockets, including the car keys to Rabb's Oldsmobile. Defendant was subsequently placed under arrest.

Defendant contends that "the fact that the [defendant] may have appeared to be a Mexican and was wearing dark clothing in front of a cafe in Salome * * * does not constitute probable cause to arrest him." Citing Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), defendant additionally argues that he was arrested when Sergeant Harold asked him to empty his pockets. He, therefore, maintains that the car keys should have been suppressed as the fruits of an illegal search. The fourth amendment, U.S.Const. amend. IV, requires a showing of probable cause before a defendant may be arrested. We have defined probable cause as reasonable grounds to believe that an offense is being or has been committed by the person arrested. State v. Wiley, 144 Ariz. 525, 698 P.2d 1244 at 1250 (1985). Additionally, a defendant is arrested when his liberty of movement is interrupted and restricted by the police. State v. Green, 111 Ariz. 444, 446, 532 P.2d 506, 508 (1975). Whether such restriction has occurred is determined by an objective evaluation of the evidence and not by the subjective belief of the parties. Id.

Because Sergeant Harold was unavailable to testify, we are unable to determine whether defendant was free to leave when he emptied his pockets. The state, however, has the burden of showing that the arrest was proper. See State v. Edwards, 111 Ariz. 357, 360, 529 P.2d 1174, 1177 (1975). In the absence of proof to the contrary, we must assume that defendant was arrested at the time he relinquished the keys.

We do not find this assumption defeating, because we believe that the police had probable cause to arrest defendant at that time. They had previously received a report of an attempted burglary and were given a description of the suspect. Defendant both matched this description and was in the area of the crime scene. It is noted that the Salome-Vicksburg-Wenden area is an area of sparse population, Salome the largest of the three communities having an estimated population of 606. Local people are readily recognized and strangers stand out. It is highly unlikely that there was another similarly dressed person fitting defendant's description in the vicinity. We believe there was probable cause to arrest defendant. We find no error.


Defendant next argues that he was denied his right to a speedy trial under the sixth amendment to the United States Constitution. In order to understand this argument, a brief chronology is necessary. Defendant was arrested on 2 April 1981, and indicted six days later. He was subsequently tried, and the jury returned a verdict The sixth amendment guarantees a defendant "the right to a speedy and public trial." U.S.Const. amend. VI. This right is triggered by either formal indictment, information or actual restraint of arrest. State v. Soto, 117 Ariz. 345, 348, 572 P.2d 1183, 1186 (1978). The United States Supreme Court has enunciated a balancing test to be used in determining whether a defendant has been denied this constitutional protection. Four factors must be considered: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant's assertion of the right, and (4) the prejudice caused to the defendant. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972). Of these four factors, the length of the delay is the least conclusive and the prejudice suffered by the defendant is the most important. Soto, supra. In...

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