State v. Mincey

Decision Date13 October 1981
Docket NumberNo. 3283-2,3283-2
Citation636 P.2d 637,130 Ariz. 389
PartiesSTATE of Arizona, Appellee, v. Rufus Junior MINCEY, Appellant.
CourtArizona Supreme Court

Robert K. Corbin, Atty. Gen., Phoenix, Stephen D. Neely, Pima County Atty., D. Jesse Smith, Deputy County Atty., Tucson, for appellee.

Richard S. Oseran, Pima County Public Defender, Lawrence H. Fleischman, Asst. Pima County Public Defender, Elliot Glicksman, Tucson, for appellant.

GORDON, Justice:

Appellant Rufus Junior Mincey was convicted by a jury of murder, second degree, in violation of A.R.S. § 13-452, Count I; assault with a deadly weapon in violation of A.R.S. § 13-249, Count II; unlawful offer to sell narcotics in violation of A.R.S. § 36-1002.02, Count III; and unlawful possession of a narcotic drug for sale in violation of A.R.S. § 36-1002.01, Count IV. 1 He was sentenced to a term of not less than twenty-five years nor more than life for Count I; to a term of not less than ten nor more than fifteen years for Count II; to a term of not less than five nor more than fifteen years for Count III; and to a term of not less than five nor more than six years for Count IV, all sentences to run concurrently. We have jurisdiction pursuant to A.R.S. Const. Art. 6, § 5(3) and A.R.S. § 13-4031. The judgment of the trial court is reversed and remanded as to Count I; judgment is affirmed as to Counts II, III and IV.

This is the second time this case has been before us. The incidents giving rise to the instant appeal occurred in 1974. Following a jury trial, we reversed on two counts, State v. Mincey, 115 Ariz. 472, 566 P.2d 273 (1977) (hereinafter Mincey I ), and the United States Supreme Court reversed on the remaining counts, Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (hereinafter Mincey II ). Because of the differences in evidence adduced at the second trial and the different issues in this appeal, we will restate the facts viewing the evidence in the light most favorable to upholding the verdict.

On October 28, 1974, a drug buy was arranged in Tucson between Undercover Officer Barry Headricks and Charles Ferguson by a police informant named Tom Read. Read introduced Headricks to Ferguson as Brian, a chemist. After this meeting, Ferguson went to appellant's apartment to set up the sale. Three other people were present in the apartment besides Ferguson and appellant: Deborah Johnson, apparently appellant's girlfriend, John Hodgman, and Carol Diane Greenwalt, Hodgman's girlfriend, all heroin users. Headricks, meanwhile, met with a team of undercover agents of the Metropolitan Area Narcotics Squad (Metro agents) to plan a buy-bust at appellant's apartment whereby Headricks would negotiate the sale, test the heroin, leave to get his "money man" (Undercover Agent Schwarz), return with the "money man" and other agents, and make the appropriate arrests and seizures of evidence.

After Ferguson arranged for the sale at appellant's apartment, he met Tom Read in the parking lot where both awaited the arrival of Headricks. During this time, Hodgman told appellant that Ferguson looked like someone who had been following him the previous week. It is disputed whether he called Ferguson a "guy" or a "narc". Hodgman then decided to go outside and look around. He took with him, on appellant's request, a trash bag to empty which the state maintains contained used drug paraphernalia (needles and cottons). While he was outside, he saw Ferguson talking with at least one other person, possibly two, and a car parked on the street with two people in it. When he returned to the apartment, he told appellant what he had seen.

When Headricks arrived, Ferguson brought him up to the apartment. Headricks was wired so as to transmit the proceedings in the apartment to the Metro agents and deputy county attorney who were stationed around the apartment complex. The sale was negotiated in the bathroom where Headricks conducted a field test of the heroin and where he apparently noticed that Ferguson was armed. Headricks then left saying that he would return with his "money man."

The Metro agents subsequently stationed themselves in the hallway near the door in such a manner so as not to be seen from inside the apartment. Headricks and Schwarz, dressed in street clothes, and with guns held at their sides, were in front of the door which was set in an alcove. Headricks knocked, and at this point the testimony and briefs conflict as to what subsequently occurred. The state maintains that Hodgman opened the door and made eye contact with one of the agents in the hall who was visible and wearing a badge; that Headricks announced "police" in a low voice and stepped inside; that Agent Schwarz tried to come in behind Headricks, but that Hodgman slammed the door on Schwarz' arm. Appellant maintains that Headricks knocked; that Hodgman approached the door and saw Headricks and another man through the peephole; that Hodgman opened the door and saw a third man peeking around the corner into the alcove and saw his head, shoulders and a gun held at chest level but no badge; that Hodgman then began to shut the door; that Headricks pushed against it and was able to get in; that no one either inside or outside the apartment, except Agent Schwarz, heard Headricks say anything about "police"; and that after Headricks' entry, the door caught Schwarz' right arm and that in his right hand he held a gun visible inside the apartment. Both agree that the remaining agents then rushed into the apartment and only then heard gunfire from the bedroom into which Headricks had gone to find appellant.

During the gun battle in the bedroom, appellant apparently fired seven shots, five of which hit Headricks, and Headricks fired six. The testimony is in dispute about who fired first. Appellant was wounded in the buttocks causing nerve damage. Deborah Johnson was wounded and crawled into the bedroom closet, and Charles Ferguson was wounded in the head by a bullet which came through the bedroom wall as he was being held under arrest by Officer Fuller. Headricks then left the bedroom and collapsed in the living room, whereupon three of the Metro agents, Fuller, Morgan and Anaya, went into the bedroom. Others were placing John Hodgman and Diane Greenwalt under arrest in the living room and Charles Ferguson was on the floor, partially inside the bathroom, handcuffed and bleeding.

Agent Anaya testified at the pre-trial suppression hearing that during and after the shooting, he observed a gun lying near appellant's hand in the bedroom, a small automatic weapon that fell from Headrick's waist after his collapse in the living room, Headrick's revolver lying near his body, and a Hammerless .38 revolver he saw while entering the apartment which he said he thought belonged to Agent Schwarz, although he had taken it from Hodgman's hand during Hodgman's struggle with Schwarz after the entry into the apartment. Another of the Metro agents, Sgt. Wolfe, testified at trial that after the shooting, he observed a vial next to the wash basin in the bathroom as he was walking into the bedroom. After leaving the bedroom, he took a closer look and determined it was heroin.

Tucson Police Department policy required that the Metro agents not search or seize in the event of a homicide but await the arrival of the homicide investigative unit. Detective Reyna, heading that unit, arrived a few minutes after the shooting had stopped and the people in the apartment were under the control of the Metro agents. The length of time between the end of the shooting and Reyna's arrival at 3:28 p. m. was not clearly established at trial. The testimony is also in dispute as to how soon after his arrival the victims were removed from the scene.

After the removal of the victims, Reyna, two I.D. technicians, and a graphic arts specialist began photographing and filming the apartment and its contents. The apartment was also diagramed, and visible items were tagged, given identification numbers and subsequently removed. The state maintains that only after the "plain view" evidence was photographed and tagged did a "search" begin and that that was not until 7 p. m. The state also maintains that prior to any search commencing, Reyna asked a Deputy County Attorney if he would need a warrant and was informed that he would not, unless the police left the scene and later returned. He would, however, need a warrant for the search of an automobile in the parking lot. A telephonic search warrant was therefore obtained for the car. Reyna and the investigators left the apartment at approximately 1:30 a. m., after posting a guard, and returned later that morning to conduct what amounted to a four-day search.

Appellant's lease on the apartment expired at the end of October, at which time the Pima County Attorney's Office leased it, assumedly in preparation for the first trial. In October of 1978, that office again leased the apartment in preparation for the second trial. During the second occupancy, Detective Reyna recreated the trajectories of the bullets by examining the bullet holes that still existed and, according to the state, without using any of the evidence seized in 1974. A mock-up of the apartment was also prepared for the second trial independently, according to the state, of any notes or evidence seized in 1974.

Appellant raises fifteen issues on appeal which we will address in the following order.

1. Whether the lower court erred in instructing the jury that the law presumes that the defendant intended the consequences of his actions.

2. Whether the prosecutor's failure to provide exculpatory material that would have created a reasonable doubt in the first trial of appellant renders his second trial unconstitutional as a violation of double jeopardy.

3. Whether the lower court erred in refusing to sever the narcotics counts from the homicide and assault charges.

4. Whether the...

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