State v. Poland

Decision Date13 April 1982
Docket NumberNos. 4969,4970,s. 4969
Citation132 Ariz. 269,645 P.2d 784
PartiesSTATE of Arizona, Appellee, v. Michael Kent POLAND, and Patrick Gene Poland, Appellants.
CourtArizona Supreme Court

Robert K. Corbin, Atty. Gen. by William J. Schafer, III, and Gerald R. Grant, Asst. Attys. Gen., Phoenix, for appellee.

Boyle, Brown, Eaton & Pecharich by Wm. Lee Eaton, Prescott, for appellant Michael Kent Poland.

John C. Stallings, Prescott, for appellant Patrick Gene Poland.

CAMERON, Justice.

This is a consolidated appeal by defendants Michael Kent Poland and Patrick Gene Poland from jury verdicts of guilt to the crimes of first degree murder of Cecil Newkirk and Russell Dempsey, in violation of former A.R.S. §§ 13-451 and 13-452. Defendants were sentenced to death pursuant to former A.R.S. §§ 13-453(A) and 13-454(E). We have jurisdiction of this appeal pursuant to A.R.S. § 13-4031.

Because we must reverse as a result of jury misconduct, we need not consider all the questions raised by the defendants. We will, however, consider those questions which are likely to be raised again on retrial of the matter, it being kept in mind that different evidence presented at retrial might mandate different results.

Defendants raise the following issues on appeal:

1. Jurisdiction:

(a) Did the State of Arizona lack jurisdiction and the County of Yavapai lack venue to try defendants because of failure to show that the crimes were committed in the State of Arizona and the County of Yavapai?

(b) Did the prior federal prosecution of defendants arising out of the same facts bar the action in the state court?

2. Suppression of Evidence:

(a) Did a tour of Michael Poland's house constitute an impermissible warrantless search?

(b) Was the search warrant based on statements made in reckless disregard for the truth?

(c) Was the search warrant based on tainted, post-hypnotic statements of a witness?

(d) Was the scanner, scanner key, and taser gun receipt seized during the search outside the scope of the search warrant?

(e) Did the trial court err in allowing the taser gun to be admitted into evidence?

(f) Was it reversible error to admit the testimony of a witness who, prior to trial, had been hypnotized and questioned on the subject of his testimony?

3. Was the evidence sufficient to support the verdict?

4. Did the jury's knowledge of extraneous information deny the defendants a fair trial?

5. Was there sufficient evidence to find that the murders were committed in an especially heinous, cruel or depraved manner?

The facts necessary to a determination of this appeal are as follows. At approximately 8 A.M. on 24 May 1977, a Purolator van containing some $328,180 in cash left Phoenix on a routine delivery to banks in various towns in northern Arizona. When the van failed to make its deliveries, the authorities were notified. The abandoned van with some $35,150 in cash was discovered early the next day a short distance off Highway I-17.

The evidence revealed that on the morning of 24 May 1977, a number of passing motorists had noticed a Purolator van pulled over to the side of Highway I-17 by what appeared to be a police car. Some witnesses identified the two uniformed men as Michael and Patrick Poland. The evidence also showed that on 24 May 1977, Michael and Patrick Poland borrowed a pickup truck and tarpaulin from their father, George Poland. Early on 25 May 1977, Michael Poland rented a boat at the Temple Bar Marina on Lake Mead. He stated that he planned to meet his brother Patrick at Bonelli Landing, a primitive camping area on the Lake, and to do some fishing. At some point, George Poland's truck became stuck in the sand at the water's edge at Bonelli Landing with the tailgate facing the water. After their attempts to extricate it had failed, the Polands called a towing service. Stan Sekulski was the operator of the tow truck. A few days later, the Polands returned their father's truck with a new tarp, explaining the old one had been ruined when they placed it under the wheels of the truck for traction.

Three weeks later, the body of Cecil Newkirk, one of the guards of the Purolator van, surfaced on Debbie's Cove, a small inlet on the Nevada side of Lake Mead. The body was partially covered by a canvas bag. A week later, park rangers searching the area discovered the body of the other Purolator guard, Russell Dempsey, a short distance from the place Cecil Newkirk's body had been found. Autopsies revealed that the most probable cause of death was drowning, although in the case of Mr. Dempsey the pathologist was unable to rule out a heart attack as a possible cause of death. The bodies had been in the water two weeks or longer. There was no evidence that the guards had been wounded or tied before being placed in the water. Although it was impossible to determine whether they had been drugged, there was no evidence of a struggle. Divers searching the area recovered two other canvas bags, one containing a tarp and blanket. They also brought up two revolvers, which were identified as belonging to the guards, and a license plate bearing the insignia found on Arizona Department of Public Safety automobiles. These were found near a pile of rocks which had evidently fallen out of the bag when it was recovered by a diver. The rocks were of the type found along the shore of Debbie's Cove.

Searches of the homes of Michael and Patrick Poland on 27 July 1977 revealed a number of weapons, including a taser gun, large amounts of cash, and items of police-type paraphernalia. Of particular interest were a scanner and scanner key which were capable of monitoring radio frequencies, a notebook listing local police frequencies, a receipt for a taser gun bearing the name Mark Harris, handcuff cases, and a gunbelt. Both of the rented cars of the Polands, which were light-colored Chevrolet Malibus, had siren-type burglar alarms which could be activated from inside or outside of the car. Evidence also connected the Polands to the purchase of a "light bar" or rack which could be placed on top of an automobile and would resemble a law enforcement light bar or rack. The canvas bags found in the lake were shown to have been purchased by a Mark Harris.

Although neither Michael nor Patrick Poland had regular employment, the evidence showed that they made numerous large purchases during June and July of 1977. These purchases included appliances, furniture, motorcycles, and a business. Most of the purchases were made in cash or by a cashier's check.

The Polands' defense was alibi. They both took the stand and testified that they had disguised themselves as law enforcement officers and robbed drug dealers on three occasions in early 1977. They testified that they had also been dealing in gems for several months prior to the Purolator incident and that on 24 May 1977, had taken a load of raw turquoise to Las Vegas and returned by way of Lake Mead to do some camping.

From the jury verdicts and judgments of guilt to first degree murder of Cecil Newkirk and Russell Dempsey, sentences of death, and denial of their motion for a new trial, defendants appeal.

JURISDICTION
a. Did the murder occur outside the jurisdiction of Arizona?

The evidence supports a finding that defendants stopped the Purolator van somewhere near the Bumble Bee exit off Highway I-17 in Yavapai County, Arizona, where they captured the two guards and took the contents of the van. The following day, defendant Michael Poland rented a boat at the Temple Bar Marina, located on Lake Mead in Mohave County, Arizona. He met his brother Patrick in the boat at Bonelli Landing, also in Mohave County. The evidence would support a finding that the defendants loaded the two guards into the boat, traveled some distance, and dumped them into the water. The bodies of the two guards were found a few miles from Bonelli Landing, in Debbie's Cove, in Clark County, Nevada. The evidence does not indicate where the deaths of the two victims actually took place.

The defense argues that, because the State had been unable to prove where the guards died, the State of Arizona has no jurisdiction to try the Polands for murder. We do not agree. Even if we assume that the actual murder took place on the Nevada side of Lake Mead, there are sufficient elements of the crime which occurred in Arizona to give the Arizona court jurisdiction.

Generally, a homicide is "committed" where the fatal wound or blow is inflicted. 40 Am.Jur.2d Homicide § 198. Jurisdiction, however, is not limited to those crimes committed totally or exclusively within the state. Jurisdiction of the Arizona courts in criminal cases extends to crimes when any element has been committed in the State of Arizona.

"A. This state has jurisdiction over an offense that a person commits by his own conduct or the conduct of another for which such person is legally accountable if:

1. Conduct constituting any element of the offense or a result of such conduct occurs within this state; * * * " A.R.S. § 13-108(A)(1).

When the elements of a crime are committed in different jurisdictions, any state in which an essential part of the crime is committed may take jurisdiction. State v. Scofield, 7 Ariz.App. 307, 438 P.2d 776 (1968). "Any element," then, can confer jurisdiction. State v. Bussdieker, 127 Ariz. 339, 621 P.2d 26 (1980).

The elements of first degree murder are: (1) the unlawful killing (2) of a human being (3) with malice aforethought. Former A.R.S. § 13-451(A). There was evidence of the defendants' activities in planning the crime, for example, the purchase of the canvas bags used to hold the bodies of the victims and the boat rental. These acts constituted evidence of premeditation from which the element of malice aforethought could be inferred. State v. Tostado, 111 Ariz. 98, 523 P.2d 795 (1974); State v. Bustamante, 103 Ariz. 551, 447 P.2d 243 (1968). These acts of premeditation occurred in Arizona. We hold that...

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