State v. Macumber

• Decision Date: 09 June 1978
• Docket Number: No. 3122-2,3122-2
• Citation: 119 Ariz. 516,582 P.2d 162
• Parties: STATE of Arizona, Appellee, v. William Wayne MACUMBER, Appellant.
• Court: Arizona Supreme Court

Page 162

582 P.2d 162

119 Ariz. 516

STATE of Arizona, Appellee, v. William Wayne MACUMBER, Appellant.

No. 3122-2.

Supreme Court of Arizona, In Banc.

June 9, 1978.

Rehearing Denied July 18, 1978.

Bruce E. Babbitt, Former Atty. Gen., John A. LaSota, Jr., Atty. Gen. by William J. Schafer, III and Gregory A. McCarthy, Asst. Attys. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender by Paul J. Prato and Bedford Douglass, Jr., Deputy Public Defenders, Phoenix, for appellant.

HAYS, Justice.

On September 18, 1974 appellant was charged by information with two counts of first degree murder. Thereafter, he was found guilty by a jury on both counts, and he appealed to the Arizona Supreme Court. The original convictions were reversed. See State v. Macumber, 112 Ariz. 569, 544 P.2d 1084 (1976). At the second trial he was again convicted on both counts. This appeal is from the second convictions.

On the morning of May 24, 1962 two bodies were discovered in the desert north of Bell Road and east of Scottsdale Road in Maricopa County, Arizona. The bodies were later identified as Joyce Sterrenberg and Timothy McKillop. The bodies were lying next to an automobile owned by Joyce and in close proximity were found four expended .45-caliber shell casings and one live .45-caliber round. The automobile located at the scene was examined for fingerprints and some prints were lifted from the vehicle.

Investigation determined that Joyce and Timothy were approximately 20 years of age and were engaged to be married. In the early evening of March 23, 1962, they left the Sterrenberg residence in Joyce's car. Trial testimony indicated that the vehicle was seen at a service station on Scottsdale Road where gas was purchased and that thereafter the couple visited some model homes located at 32nd Street and Northern. Despite an extensive investigation, no substantial leads were developed.

Some twelve years after the death of the two victims, on August 23, 1974, Carol Macumber, the wife of the appellant Macumber, came to the sheriff's deputies with the information that appellant had made certain admissions to her regarding the alleged murders. Carol's statement was taken and a few days thereafter, after being apprised of his rights, appellant was confronted with his wife's statement. In essence, Macumber admitted that he had told his wife that he had killed the two victims.

It was later developed that appellant's palm print matched a print lifted from the chrome strip on the door of the car belonging to Joyce Sterrenberg. Appellant's 45-caliber gun was tested and the ejector markings were found to be identical with the markings on the shells found at the murder scene.

The defense at trial emphasized the fact that appellant and his wife in 1973 had been active in a volunteer search and rescue unit associated with the sheriff's office and had attended night courses in police science. Appellant's counsel brought out the fact that the wife Carol had thereafter been employed by the sheriff's office as a clerk, and that she and appellant during this time were having marital difficulties. These difficulties caused Carol to move out in June of 1974 and to ultimately divorce appellant in April of 1975.

It would appear from the cross-examination of Carol and the defense witnesses presented that the main thrust of the appellant's case was to discredit the prosecution's hard evidence by implying that Carol and/or other members of the sheriff's office had tampered with the evidence, and had indeed "framed" the appellant who, by the testimony of character witnesses, was a fine law-abiding citizen.

Appellant in this appeal has raised the following issues:

I. DESTRUCTION OF DEPARTMENTAL REPORTS AND NOTES BY THE SHERIFF'S OFFICE DENIED APPELLANT A FAIR TRIAL AS GUARANTEED BY THE DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION.

II. THE TRIAL COURT'S REFUSAL TO PERMIT APPELLANT TO PRESENT THE TESTIMONY OF DR. MAIER TUCHLER DENIED APPELLANT A FAIR TRIAL AND DUE PROCESS.

III. THE TRIAL COURT'S REFUSAL TO PERMIT ERNEST VALENZUELA'S PREVIOUS ATTORNEYS TO TESTIFY REGARDING VALENZUELA'S CONFESSION TO THEM REGARDING THE HOMICIDES DENIED APPELLANT A FAIR TRIAL AND DUE PROCESS.

IV. THE TRIAL COURT ERRED IN ADMITTING EXHIBITS 28 AND 29 (THE SHELL CASINGS FOUND AT THE SCENE).

V. IMPOSITION OF CONSECUTIVE SENTENCES DENIED APPELLANT DUE PROCESS OF LAW.

VI. THE SENTENCE IMPOSED UNLAWFULLY FAILED TO CREDIT APPELLANT WITH TIME SERVED ON THE PREVIOUS CONVICTION.

VII. REFUSAL TO GRANT APPELLANT'S MOTION FOR CHANGE OF JUDGE WAS ERROR.

VIII. THE TRIAL COURT ERRONEOUSLY FAILED TO MAKE AVAILABLE TO DEFENSE COUNSEL CERTAIN MEDICAL RECORDS OF THE JUROR, LYNN JOHNS.

IX. THE TRIAL COURT ERRED IN REFUSING TO GRANT APPELLANT'S MOTION FOR NEW TRIAL AND MOTION TO VACATE JUDGMENT BASED UPON NEWLY DISCOVERED EVIDENCE.

I.

On the issue of destruction of departmental reports and notes, appellant paints with a broad brush, for "departmental reports and notes" covers the whole spectrum of an investigation. Does it include every note of a telephone call whether coherent or only remotely related to the investigation? Does it include reports of leads over a period of 12 years which in the investigator's opinion ended up in blind alleys and are valueless? In State v. Maloney, 105 Ariz. 348, 464 P.2d 793 (1970), we met this issue saying:

"It would be comfortable if a comprehensive formula could be devised to determine when the fairness of a trial is violated by withholding or destroying evidence which is, or may be, exculpatory. An examination of the authorities, however, dictates the obvious observation that courts must look to the circumstances of the particular case in reaching a decision." 105 Ariz. at 351, 464 P.2d at 796.

Earlier in State v. Maloney, supra, the court indicated that a defendant's speculation as to how some items might have given him aid and comfort is not persuasive. The trial judge here was informed as to appellant's position on certain allegedly destroyed evidence and found it did not affect the fairness of the trial. We concur.

The Court of Appeals in State v. Brewer, 26 Ariz.App. 408, 549 P.2d 188 (1976) (review by this court denied), discussed an argument on appeal which is virtually the same as the issue here. In summing up its position, the court said "Thus Bryant, ¹ Henry ² and Maloney ³ all hold that there is no violation of the defendant's constitutional rights unless the government willfully or negligently destroys evidence that would have been favorable to the defendant's case. The defendant has not shown that in this instance the state either willfully or negligently destroyed the tapes in question. Moreover, there has no proof that such tapes were crucial to show defendant's innocence." (footnotes ours) 26 Ariz.App. at 416, 549 P.2d at 196.

The defense in this case goes well beyond the usual loss or destruction of evidence issue. Since one of the major contentions by appellant was that destruction of evidence was a part of the conspiracy against him, this issue was weighed and considered by the jury after they were properly instructed as to how to treat the allegedly missing evidence. ⁴ By its guilty verdicts the jury found against the appellant on this issue.

An examination of the record indicates that a description of the evidence allegedly destroyed is based on conjecture, albeit plausibly put together, but nevertheless conjecture. The usefulness of this evidence to appellant is demonstrated by inventive speculation, but speculation nonetheless. The issue of the state's bad faith was tried by both judge and jury; this should suffice. State v. Brewer, supra. See also United States v. Heiden, 508 F.2d 898 (9th Cir. 1974), and United States v. Henry, 487 F.2d 912 (9th Cir. 1973).

II. & III.

It appears more expedient to address together the issues concerning the exclusion of the testimony of the doctor and attorneys.

At the conclusion of the state's case, the court dismissed the jury in anticipation of a defense motion for a directed verdict. Counsel for the appellant requested that the court first consider two preliminary matters; the first pertaining to Ernest Valenzuela, now deceased. As to this matter the county attorney interposed an objection and referred the court to the previous trial and this court's ruling on the matter. State v. Macumber, supra. The court at the time the objection was asserted and subsequently in the proceedings indicated a concern that all of the evidence to support appellant's position be preserved by a hearing thereon. The judge indicated some difficulty in applying the ruling of the previous case which was submitted on the limited facts of an offer of proof. He indicated that a full hearing would be held.

The first witness called was Nina Reems, the mother of Valenzuela, who was questioned as to her waiver of the attorney-client privilege which would permit a former attorney for her son to testify as to an alleged confession to the murders of Sterrenberg and McKillop. Mrs. Reems was a Maricopa Indian with an apparently limited grasp of the English language. However, she did say that she would waive the privilege on behalf of her son.

Dr. Maier Tuchler, a psychiatrist, was called as a witness and he testified that he saw Valenzuela on August 14, 1964 at the request of the sheriff. Valenzuela made dreamy, vague statements about the Sterrenberg-McKillop murders. The doctor's attempt to pin down the details of the murders was wholly unsuccessful fantasy instead of facts. Dr. Tuchler's opinion was that Valenzuela had not committed the murders.

Another witness was the attorney to whom Valenzuela had allegedly confessed. The passage of time and the loss or destruction of some notes, records, or tapes left the attorney with few specific recollections. The attorney indicated that the murder confession was simply a passing comment as he and his client were concerned with the defense of...