State v. Mincey, 3283-3
| Decision Date | 04 April 1984 |
| Docket Number | No. 3283-3,3283-3 |
| Citation | 141 Ariz. 425,687 P.2d 1180 |
| Parties | STATE of Arizona, Appellee, v. Rufus Junior MINCEY, Appellant. |
| Court | Arizona Supreme Court |
Frederic J. Dardis, Pima County Public Defender, Lawrence H. Fleischman, Asst. Public Defender, Tucson, for appellant.
On May 28, 1982, a jury found appellant, Rufus Junior Mincey, guilty of second-degree murder in violation of A.R.S. § 13-452 []. He was sentenced to a term of not less than twenty-five years nor more than life. Timely appeal was filed from the conviction. This Court has jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. § 13-4031. We affirm the conviction and the sentence.
This is the third time this matter has been before this Court. The incident giving rise to the charges against appellant occurred on October 28, 1974. In 1975, a jury convicted appellant of first-degree murder, assault with a deadly weapon, unlawful sale of narcotics, unlawful possession of narcotic drugs for sale, and unlawful possession of narcotic drugs. On appeal, we reversed the murder and assault convictions and affirmed the convictions on the drug charges. State v. Mincey [Mincey I], 115 Ariz. 472, 566 P.2d 273 (1977). The United States Supreme Court reversed the narcotic convictions. Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). In 1979, a jury convicted appellant of second-degree murder, assault with a deadly weapon, unlawful offer to sell narcotics, and unlawful possession of a narcotic drug for sale. On appeal, this Court reversed the murder conviction. State v. Mincey [Mincey II], 130 Ariz. 389, 636 P.2d 637 (1981), cert. denied, 455 U.S. 1003, 102 S.Ct. 1638, 71 L.Ed.2d 871 (1982).
Although each of our previous opinions contains detailed factual statements, the evidence adduced at the third trial differs somewhat from that of the prior trials and we will, therefore, restate the facts. Despite some conflicts in the testimony, we view the evidence in the light most favorable to upholding the verdict. In addition Sometime prior to October 28, 1974, police informant Tom Read arranged with Charles Ferguson to purchase a quantity of heroin. Read then contacted the Tucson Metropolitan Area Narcotics Squad (Metro). He introduced agent Barry Headricks to Ferguson as Brian, a chemist who was to be the purchaser of the heroin. The sale was set for the midafternoon of October 28, 1974.
to the following general statement of facts, additional facts will be related as made necessary by the legal issues raised.
Prior to the time set for the sale, Ferguson went to appellant's apartment to discuss the transaction. Several other people, John Hodgman, Carol Diane Greenwalt, and Deborah Johnson, were present. When Ferguson left to get Officer Headricks, Hodgman told appellant that Ferguson looked like someone who had been following him the previous week. It was disputed at trial whether, in this statement, Hodgman called Ferguson a "guy," a "boob," or a "narc." There was testimony that Hodgman's statement upset appellant. Hodgman and Greenwalt then went outside to take a look around the apartment complex. While outside, Hodgman saw Ferguson and two other persons unknown to him talking together in the parking lot. Upon returning to appellant's apartment, Hodgman told appellant what he had seen and that the people looked "suspicious." Appellant responded that he hoped the people outdoors were not "pigs." Hodgman then left to take a second look around outside.
Also earlier on October 28, Officer Headricks met with a team of undercover Metro agents to plan the "buy-bust." 1 Officer Headricks was fitted with an electronic monitoring device so that the rest of the team of Metro agents could overhear the conversations that Headricks had with the heroin seller. The Metro agents' plan was that Officer Headricks would pose as a buyer, go to the apartment, and test the heroin. If it looked good, he was to leave the apartment indicating that he had to get his "money man" (Officer Schwarz). When the two officers returned and entered the apartment, still posing as heroin buyers, the remaining officers were supposed to rush in and arrest all the individuals in the apartment.
Officers Headricks and Schwarz drove to the apartment complex in an unmarked car. In other unmarked cars, several other Metro agents and a deputy county attorney established surveillance points around the apartment complex. Officer John Bright noticed a couple (later identified as Hodgman and Greenwalt) walking around the apartment parking lot. Officers Headricks and Schwarz noticed the same couple when they drove into the parking lot.
Ferguson and Officer Headricks proceeded to appellant's apartment to begin the heroin transaction. Once inside the apartment, Officer Headricks was introduced to appellant as Brian, a chemist. Appellant took Ferguson and Officer Headricks into the bathroom and showed them the heroin. Officer Headricks conducted a field chemical test on the heroin. Over the monitoring device, the other undercover officers overheard Officer Headricks indicating that the narcotics looked good and that he would go out, get his money man, and return to complete the sale. As he walked back to the car, Officer Headricks told the other officers, via the monitoring device, which apartment he had been in, that there were three people in the apartment, a black male (appellant), a white male (presumably Ferguson), and a white female (presumably Greenwalt), that the white male was armed with a gun, and that the narcotics were in the bathroom. Just before Officer Headricks reached the car, Officer Schwarz saw The Metro agents then began to carry out the buy-bust explained above. Officer Headricks and Schwarz, still posing as buyer and money man, went to the apartment door with guns drawn but not visible. The other Metro agents and the deputy county attorney positioned themselves, supposedly out of sight of the apartment, in the hallway. Officer Headricks knocked on the door. It was opened by Hodgman who apparently did see one of the other agents behind Officers Headricks and Schwarz. Hodgman then attempted to shut the door. Officer Headricks, in a low voice, announced that he was a police officer and managed to gain entrance to the apartment. Hodgman continued to try to shut the door, catching Officer Schwarz half in and half out of the apartment. Officer Schwarz and the other agents forced the door open and rushed inside. Officer Headricks went into the apartment's only bedroom. Officer Schwarz and one other officer held Hodgman on the floor and handcuffed him. Another officer held Ferguson against a wall. Other officers told Greenwalt to "freeze." After all these officers were in the apartment, gunfire was heard from the bedroom.
the same man he had seen earlier (Hodgman) run out into the parking lot, look both directions, and quickly head back into the apartment complex. At that time Officer Schwarz had no reason to connect this man with the heroin transaction.
Officer Headricks' .38 revolver and appellant's .380 automatic handgun had each been emptied. Appellant sustained one wound in his buttocks. Deborah Johnson, who had been lying on the bed, was struck in the thigh by a bullet, rolled off the bed, and crawled into the bedroom closet. Ferguson was struck in the head by a bullet that came through the bedroom wall. Officer Headricks was hit by approximately five bullets; he came out of the bedroom, mumbled something like "he's down" and collapsed in the living room. Three officers then entered the bedroom while others summoned emergency assistance. All four victims were transported to hospitals for medical care. Officer Headricks died of his wounds.
At trial, the state's theory was that appellant knew that "Brian the chemist" was a police officer before the shooting began. Appellant argued that he simply thought "Brian the chemist" was stealing the heroin and that when "Brian the chemist" came at him with a gun, he acted in self-defense by shooting. There was considerable evidence presented concerning the position each man was in when each shot was fired and concerning which shot inflicted which wound. A three-dimensional mock-up was prepared for trial and was utilized by several witnesses to explain their positions during the shootout and to graphically depict the suspected bullet pathways.
On appeal appellant raises eleven issues:
1. Whether there is sufficient evidence to support appellant's conviction;
2. Whether the admission of evidence concerning appellant's prior drug dealing constitutes reversible error;
3. Whether the admission of evidence concerning appellant's "premeditation" constitutes reversible error;
4. Whether the admission of testimony regarding Terry Bush's inferences from statements made by appellant constitutes reversible error;
5. Whether the trial court committed reversible error by denying appellant's motion and refusing appellant's jury instruction concerning the legality of the police entry into the apartment;
6. Whether the denial of appellant's motion to suppress constitutes reversible error;
7. Whether the admission of certain medical evidence violates appellant's physician/patient privilege and constitutes reversible error;
8. Whether certain rebuttal testimony and the prosecutor's conduct in connection therewith constitute reversible error 10. Whether appellant's post-verdict motion for change of judge was properly denied; and
9. Whether the refusal of a particular jury instruction on self-defense constitutes reversible error;
11. Whether appellant's sentence is excessive.
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