State v. Poland

• Court: Arizona Supreme Court
• Writing for the Court: CAMERON; HOLOHAN, C.J., and HAYS; GORDON; FELDMAN
• Citation: State v. Poland, 144 Ariz. 388, 698 P.2d 183 (Ariz. 1985)
• Decision Date: 20 March 1985
• Docket Number: No. 4970-2,4970-2
• Parties: STATE of Arizona, Appellee, v. Patrick Gene POLAND, Appellant.

Page 183

698 P.2d 183

144 Ariz. 388

STATE of Arizona, Appellee, v. Patrick Gene POLAND, Appellant.

No. 4970-2.

Supreme Court of Arizona In Banc.

March 20, 1985.

Robert K. Corbin, Atty. Gen. by Gerald R. Grant, Asst. Atty. Gen., Phoenix, for appellee.

Marc. E. Hammond, Prescott, for appellant.

CAMERON, Justice.

In State v. Poland, 132 Ariz. 269, 645 P.2d 784 (1982) (Poland I ), we reversed defendant Patrick Poland's convictions for two counts of first degree murder with sentences of death and remanded for a new trial. Upon remand, defendant was re-tried before a jury and again found guilty of two counts of first degree murder in violation of A.R.S. § 13-1105(A)(1). He was again sentenced to death. A.R.S. § 13-703. We have jurisdiction pursuant to Art. 6, § 5(3) of the Arizona Constitution, and A.R.S. §§ 13-4031 and 13-4035.

Defendant raises the following questions on appeal:

1. Pretrial Issues:

(a) Was defendant improperly denied:

(i) a peremptory change of the trial judge?

(ii) a change of judge for cause?

(b) Did the trial court improperly refuse to strike two jurors for cause?

(c) Did the trial court improperly refuse to allow testimony by an expert on eyewitness identification?

(d) Did the trial court err in refusing to suppress physical evidence obtained as the result of an alleged illegal search and insufficient search warrant?

2. Trial Issues:

(a) Did the trial court err in admitting into evidence defendant's prior conviction for bank robbery?

(b) Was the prior testimony of hypnotized witness, Stanley Sekulski, improperly read to the jury?

(c) Did the trial court commit reversible error by admitting a gruesome photograph into evidence?

(d) In light of our prior ruling in Poland I, supra, that a taser gun was improperly admitted into evidence, did the trial court improperly admit a receipt showing that weapon's purchase, the box for the weapon, and testimony thereon?

(e) Did the trial court err in failing to grant a mistrial when the prosecution introduced a previously undisclosed statement of defendant?

(f) Did the trial court err in failing to define "intent" as part of its jury instruction on aiding and abetting?

3. Death Penalty Issues:

(a) Is A.R.S. § 13-703, the death penalty statute, constitutional?

(b) Did reimposition of the death penalty constitute double jeopardy?

(c) Were the aggravating circumstances found in this case proven beyond a reasonable doubt?

(d) Did the trial court improperly refuse to consider certain mitigating factors offered by defendant?

(e) Is defendant's sentence proportional to sentences imposed in similar cases in Arizona?

The facts necessary for a determination of this matter on appeal are as follows: ¹

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 Polands' rented cars, 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 defense was alibi. Patrick took the stand and testified that both he and his brother 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, they had taken a load of raw turquoise to Las Vegas and returned by way of Lake Mead to do some camping.

Michael and Patrick Poland were convicted. They appealed and we reversed and remanded based upon jury misconduct. See Poland I, supra. On remand, defendants were again convicted and sentenced to death. We consider the appeal of Patrick Poland.

PRETRIAL ISSUES

a. Change of Judge

The mandate in Poland I was filed in this Court and mailed to the Yavapai County Superior Court on 26 May 1982. On 8 June the county attorney moved to dismiss the case. The motion to dismiss was not heard until 21 June, at which time it was denied. On 19 July, special deputies were appointed to prosecute and defendant filed motions for change of judge pursuant to Rule 10.2, Arizona Rules of Criminal Procedure, 17 A.R.S., and to disqualify the judge for cause pursuant to Rule 10.1, Arizona Rules of Criminal Procedure, 17 A.R.S. These motions were heard and denied by another judge. The peremptory challenge motion was denied because it was untimely, and the change of judge for cause motion was denied because bias or prejudice was not shown.

i. Peremptory Change of Judge

We first consider defendant's contention that the trial court committed reversible error in denying his peremptory motion for a change of judge. Our rule regarding change of judge upon request states:

a. Entitlement. In any criminal case in Superior Court, any party shall be entitled to request a change of judge.

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c. Time for Filing. A notice of change of judge shall be filed, or informal request made, within 10 days after any of the following:

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(2) Filing of the mandate from an Appellate Court with the clerk of the Superior Court;

Rule 10.2(a), (c)(2), Arizona Rules of Criminal Procedure, 17 A.R.S.

Our Poland I mandate was filed and mailed on 26 May 1982. The parties agree that defendant had 15 days, (10 days pursuant to Rule 10.2, supra, and 5 days for mailing pursuant to Rule 1.3, Arizona Rules of Criminal Procedure, 17 A.R.S.) to move to disqualify the judge without cause. The motion was not made until 19 July, some 54 days after the issuance of the mandate. This was too late and the motion was properly denied as untimely.

Defendant contends, however, that strict compliance with the rule should be waived because he relied upon the State's 8 June motion to dismiss and, therefore, did not believe that he would go to trial. Had the motion to dismiss been granted, a motion for change of judge would have been unnecessary.

Admittedly, strict compliance with a rule like ours can be waived where the peremptory challenge is made diligently and as soon as practicable. Smith v. State, 616 P.2d 863, 865 (Alaska 1980) ("Insofar as each challenge was made almost immediately after the parties learned of the judicial assignment for trial, it cannot be said that their rights to challenge were waived through untimeliness."), Riley v. State, 608 P.2d 27 (Alaska 1980) (strict compliance was waived where counsel exercised the challenge promptly...