State v. Martin

Citation139 Ariz. 466,679 P.2d 489
Decision Date31 January 1984
Docket NumberNo. 5890,5890
PartiesSTATE of Arizona, Appellee, v. Glenn Edward MARTIN, Appellant.
CourtSupreme Court of Arizona

Robert K. Corbin, Atty. Gen. by Bruce M. Ferg, Asst. Atty. Gen., Phoenix, for appellee.

Hirsh & Bayles by Robert J. Hirsh, L. Anthony Fines, Michael B. Bernays, Tucson, for appellant.

FELDMAN, Justice.

Glenn Edward Martin (defendant) was convicted of three counts of unlawful sale of a narcotic drug (cocaine) valued at not less than $250.00 and one count of conspiracy in connection with these sales. Martin appeals these convictions on several grounds. In order to consider three questions of constitutional dimension, we took jurisdiction by a transfer order. Rules of the Supreme Court, Rule 47(e)(1), 17A A.R.S.

The facts concern cocaine sales on three separate days in the spring of 1980, the warrantless entry of defendant's home by Department of Public Safety (DPS) officers following the arrest of the defendant and certain pretrial matters. The major issues we address are:

1. Was the defendant convicted of a crime with which he was not charged?

2. Should evidence seized under warrant from defendant's home be suppressed because his home was initially entered without a warrant?

3. Did the trial court commit prejudicial error in admitting co-conspirator statements in violation of defendant's rights under the confrontation clause?


DPS case agent Richard Lindback met Lorretta Hamm at a topless bar in Tucson in April, 1980, and arranged to purchase a quantity of cocaine from her. On April 9, 1980, Lindback went to a shopping center in Tucson to meet Hamm. She arrived accompanied by James Phelps, who went to an area near the stores. Hamm met with Lindback in the parking lot. Lindback gave Hamm $700. She walked toward the area where Phelps had gone, disappeared from view, and then returned to deliver a quantity of cocaine to Lindback. Phelps then left the area in a maroon Chrysler driven by a third person.

Interested in determining Hamm's supplier, DPS arranged a second buy to take place at the same shopping center on April 25. This time Lindback purchased the cocaine directly from Phelps in a divided sale. Phelps took half the money from Lindback, disappeared for a time and returned with half the agreed upon cocaine. He then received the remainder of the money, again disappeared from Lindback's view and later returned with the remainder of the cocaine. Between the times Phelps met with Lindback, Phelps was observed consorting with the occupants of a dark Chrysler (not the maroon Chrysler noted in the previous transaction).

The DPS investigation now focused on Phelps and sought to determine his source of cocaine, so another buy was arranged for May 28. On the morning of May 28, Phelps arrived at the shopping center in the same dark Chrysler observed during the April 25 transactions. The car was driven by a woman; Phelps and an unidentified male were passengers. Phelps got out at the shopping center. The car left the area and was followed to defendant's residence. Meanwhile, at the shopping center, Phelps again sold cocaine to Lindback. Lindback and Phelps arranged for a second sale to take place later in the day and Phelps left the area.

That evening, the dark Chrysler, this time occupied by two men, stopped at the shopping center and Phelps got in the car. The three men then drove briefly through a nearby residential area and returned to the shopping center. There Phelps left the car, made a phone call, drove in another car to a nearby residence and then to a drugstore where he met Lindback and was arrested. Meanwhile, the occupants of the dark Chrysler drove to another part of the shopping center. The driver, David Kautenberger (a housemate of defendant), emerged from the car and was arrested as he was about to enter a pharmacy. The passenger, who turned out to be the defendant, moved to the driver's seat and sped out of the parking lot. He was pursued by DPS agents and arrested several blocks away. Although no money or contraband was found on either the defendant or Kautenberger at the time of arrest, the defendant did have a pager on which he could receive 10-second phone messages. After the arrest, several phone messages directed to the defendant were overheard by at least two DPS agents. Each message was from a female who was described as becoming increasingly upset as her periodic messages to "call home" went unanswered.

The DPS agents relayed this information to case agent Lindback, who ordered that defendant's residence be "secured." At about 9:40 p.m., several officers came to the door, knocked, announced that they would enter and proceeded to conduct a "protective sweep" of the house.

Present in the house at the time of this invasion were defendant's daughter, his fiancee (Linda Joynes), and Kautenberger's wife and two small children. The names of the occupants were relayed to Lindback, who had been interrogating Phelps. Lindback then prepared an affidavit for a search warrant which included the names of the persons present in the house as well as conclusions drawn from his questioning of Phelps. A telephonic warrant was issued and a search of defendant's house began at about midnight. In the two and one-half hours between the time that the house was "secured" and the warrant was issued, many DPS agents had crossed the threshold of the house and two or three were apparently stationed in the house at all times. No items within the house were seized at this time. The occupants were held virtually incommunicado for over two hours. 1

The search under the warrant revealed a safe in a bedroom (the one apparently occupied by the defendant). Upon opening the safe, the DPS discovered a quantity of cocaine and the $1,900 that Lindback had given to Phelps in the cocaine buy on the morning of May 28.

On June 13, 1980, a five-count indictment, CR-03616, was issued by the Pima County Grand Jury charging defendant and Phelps 2 with four counts of "unlawful sale of a narcotic drug valued at not less than $250" in violation of (former) A.R.S. § 36-1002.02(A) and (B), and conspiracy to commit a class two felony. The buyer was not named in the indictment. Defendant argues that prior to trial the prosecution in this case was less than cooperative. It failed to give defense counsel a list of tangible evidence to be produced at trial despite a court order. It did not offer a plea bargain. In addition, the case agent refused to submit to a memorialized deposition requested by the defense counsel. There were numerous pretrial motions and an omnibus hearing on the suppression of the evidence held in January 1981.

A lengthy trial eventually took place in April 1982. Defendant was present, but Phelps, the codefendant, never appeared at the trial and was tried in absentia. Numerous statements made by both Hamm and Phelps were admitted over the continuing objection of the defense that the procedure violated the confrontation clause.

Finally, at the end of all the evidence, the prosecutor revealed his intention to propose alternative theories of defendant's culpability in closing argument--that defendant was guilty of the substantive offenses charged if he either (1) aided Phelps in selling cocaine to Lindback or (2) sold the cocaine directly to Phelps without regard to the subsequent sale of that cocaine by Phelps to Lindback. Apparently, the reason for this form of argument was the lack of evidence linking the defendant directly to the ultimate purchaser (Lindback) and the presence of circumstantial evidence linking defendant to Phelps. Defense counsel objected because the indictment had charged, in each substantive count, that defendant and Phelps had sold the cocaine, implying a joint act consistent with the conspiracy count, and not that defendant sold to Phelps. Hence, defendant argued that he had been given no notice that he was charged with the separate and distinct sale of cocaine to his named codefendant, Phelps. The defense objection was overruled and the prosecutor argued both theories to the jury. The trial court further refused defense jury instructions which would have tempered the prosecution's dual liability theory. The jury found the defendant guilty of conspiracy and three of the four counts of unlawful sale.


Defendant claims that by allowing the prosecution to argue alternate theories of culpability, he was tried and convicted of a crime with which he had not been charged. He protests that a theory of culpability based on sale from defendant to codefendant Phelps cannot be fairly inferred from the indictment charging sale by defendant and Phelps.

"Few constitutional principles are more firmly established than a defendant's right to be heard on the specific charges of which he is accused." Dunn v. United States, 442 U.S. 100, 106, 99 S.Ct. 2190, 2194, 60 L.Ed.2d 743 (1979). The Arizona Constitution sets out certain rights of the accused in criminal prosecutions. 3 Consistent with these guarantees, Ariz.Rule of Crim.Proc. 13.2(a) states that an indictment "shall be a plain, concise statement of the facts sufficiently definite to inform the defendant of the offense charged." In addition, Ariz.Rule Crim.Proc. 13.3(b) declares that defendants may be properly joined "when each defendant is charged with each offense included" or when several offenses are part of a common plan or conspiracy. These rules seek to give substance to the constitutional guarantees that an accused stand trial with clear notice of the crime with which he is charged.

The state argues, citing State v. Tison, 129 Ariz. 526, 538, 633 P.2d 335, 347 (1981), cert. denied, 459 U.S. 882, 103 S.Ct. 180, 74 L.Ed.2d 147 (1982), that an accused need not be informed about how his responsibility for his crimes will be proved. The State neglects, however, to mention the predicate for that...

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