State v. Reid
| Decision Date | 05 November 1976 |
| Docket Number | No. 3085,3085 |
| Citation | 114 Ariz. 16,559 P.2d 136 |
| Parties | The STATE of Arizona, Appellee, v. Timothy REID, Appellant. |
| Court | Arizona Supreme Court |
Bruce E. Babbitt, Atty. Gen. by William J. Schafer III, Cleon M. Duke, and Frank T. Galati, Asst. Attys. Gen., Phoenix, for appellee.
Clay G. Diamos, Tucson, for appellant.
This is an appeal by defendant Timothy Reid from verdicts of guilty to charges of first degree murder, A.R.S. §§ 13--451 and 452; armed robbery, A.R.S. §§ 13--641 and 643; armed burglary, A.R.S. § 13--302; robbery, A.R.S. § 13--641; burglary, A.R.S. § 13--302; and theft of a motor vehicle with intent to temporarily deprive the owner, A.R.S. § 13--672. Defendant was sentenced to life imprisonment on the murder count; received concurrent sentences of 60 years to life on the armed robbery, armed burglary and robbery counts; 14 to 15 years on the burglary count; and time served on theft of a motor vehicle count.
We must answer the following questions on appeal:
1. Did the court err in denying defendant's motion for change of venue?
2. Did the court err in denying defendant's application for a change of judge?
3. Was defendant denied his right to be tried by an impartial jury due to the fact that no blacks were on the panel from which the jury was selected?
4. Did the court err in requiring defendant to wear shackles during the trial?
5. Was defendant entitled to have new counsel appointed at his request?
6. Was the warrantless search of defendant's apartment an unlawful search and seizure?
7. Did the affidavit underlying the telephonic search warrant contain sufficient facts and circumstances to support a finding of probable cause?
8. Was the preliminary hearing testimony of witnesses Linda Hagood, Jacqueline Knight, and Meredith Brown properly admitted into evidence?
9. Did the court err in denying defendant a hearing concerning the in-court identification testimony of Eleanor Gallman and Joseph Mascari?
10. Did the court properly admit into evidence the videotaped testimony of a prosecution witness?
11. Should a mistrial have been granted on the basis of the testimony of Nancy de Muth?
12. Did the court improperly admit cumulative evidence?
13. Did the court improperly permit the State to introduce evidence of flight?
14. Were the sentences imposed excessive?
On the evening of 30 May 1974, at approximately 9:00 p.m., one or more persons entered the home of Mr. and Mrs. Paul W. Miles, slipped pillowcases over the Miles' heads, bound their victims with coathangers, forced them to lie on the floor, and ransacked the house for approximately 45 minutes. Neither of the victims saw the intruders' faces, although Mr. Miles was able, from seeing one of the person's hand and arm, to say that he was black. At approximately 11:30 p.m., the Miles freed themselves and called the police. Missing were numerous items, including credit cards, jewelery, silverware, and Mr. Miles' newly purchased 1974 Ford Gran Torino, which was colored light blue with a dark blue vinyl top.
At approximately 10:00 p.m. on the same night, two black men came to the door of Mr. Joseph Mascari who lived on the southwest side of Tucson, approximately 3 miles from the Miles residence. Mr. Mascari spoke through a screen door to one of the men whom he identified at trial as defendant Timothy Reid eventually refusing him permission to use his telephone. Mr. Mascari observed the two men get into a car which he described as a fairly new sedan with a light colored body and a darker roof. He testified that the men sat in the car which was parked across the street from his house for approximately 10 minutes before driving away.
At approximately 10:25 p.m., two black males, one of whom displayed a gun, walked through an open door at the home of Mr. and Mrs. Albert Gallman, a few blocks from the Mascari residence. The men ordered Mr. and Mrs. Gallman, who were in their dining room downstairs, to get down on the floor; one of the intruders threw a blouse over Mrs. Gallman's head. At the defendants' trials, Mrs. Gallman identified the men as Spencer Watson and Timothy Reid, stating that Reid carried the gun.
Once Mr. and Mrs. Gallman were on the floor, the two men demanded money; one of them searched through Mrs. Gallman's purse complaining when he discovered that it contained only $5 and some credit cards. Meanwhile, the other went upstairs, fired a shot, and forced his way into the bedroom of Nancy de Muth, Mrs. Gallman's daughter. Nancy testified that the man pointed a gun at her and ordered her to lie face down on her bed. She then heard footsteps followed by a series of gunshots and Mr. Gallman crying out. At that point, she opened her window and slid down a pipe to the ground. At about the same time that the first shot was fired, Mrs. Gallman got up and ran out of the house.
At this point, the sequence of events between the intruders and Mr. Gallman is not clear. It is clear, however, that Mr. Gallman, a border patrolman, obtained a gun and fired twice before being shot 4 times in the back, and that he died as a result of his wounds. There was evidence to suggest that Mr. Gallman grabbed his revolver, which he usually kept in a briefcase in the living room, and fired at defendant Reid as Reid was existing the house. According to this version of the facts, the codefendant Spencer Watson, coming down the stairs, saw Gallman firing at Reid and shot Gallman from behind.
At approximately 11:30 a.m. on 31 May, Reid and Watson were stopped for questioning by a uniformed police officer who observed the two shaking a gate and then running away at the sight of a policeman. As the officer was attempting to frisk the two men for weapons, Reid ran away from the scene. The officer grabbed Watson by the arm, but as he looked up to follow Reid's flight, Watson struck him in the left temple and also ran off. The two suspects were apprehended separately following a brief search.
Reid and Watson were originally charged as codefendants. A defense motion to sever was granted on 29 July 1974, after the arraignment and omnibus hearing. On 6 September, a consolidated hearing was held on various motions, including defendants' motions to have a change of venue, to suppress evidence, statements and identification, and to declare the death penalty unconstitutional, as well as a motion by the State for videotape testimony. The court, by minute entry dated 10 September 1974, denied the defendants' motion for change of venue and their death penalty motion. The defendants were tried separately. Watson was found guilty of first degree murder; armed robbery; armed burglary; robbery and burglary; theft of a motor vehicle; and obstruction of justice. State v. Watson, 113 Ariz. ---, 559 P.2d 121 (1976) filed this day. Reid was found guilty by a jury and from these verdicts, judgments, and sentences he appeals.
Defendant contends that the trial court erred in refusing his motion for a change of venue asserting that the change of venue should have been granted based upon the publicity in the record and the jurors' responses to voir dire questioning when considered in conjunction with the inflammatory nature of the crime.
The standard for the granting of a change of venue for prejudicial pretrial publicity under Rule 10.3(b), Arizona Rules of Criminal Procedure (1973), which must be proved by the defendant, is that 'the dissemination of the prejudicial material will probably result in the party being deprived of a fair trial.' We have stated:
State v. Ferrari, 112 Ariz. 324, 332, 541 P.2d 921, 929 (1975).
This is true not only because the trial judge is better able to assess the demeanor of the jurors in answering the questions concerning the effect of pretrial publicity upon them and the decisions they will be asked to make, but also a trial judge is better able to know the attitudes and emotions present in the community concerning the case in question at the time of the trial than we would viewing a cold record at a later date. To persuade this court that the trial court abused its discretion in not granting a change of venue, a party has a heavy burden which defendant has not carried in the instant case. We have read the examination of the jury as well as the complete record. We find no abuse of the trial court's discretion in denying the motion for change of venue.
Prior to trial, the attorney for defendant and the attorney for the State met and agreed to the date of the trial and the judge who would try the case. After numerous motions had been heard by the trial judge and had been ruled upon, the defendant moved, on the day of the trial and pursuant to Rule 10.2, Arizona Rules of Criminal Procedure (1973), for a change of judge.
Rule 10.4, Arizona Rules of Criminal Procedure (1973), provided in part at the time of Reid's trial:
Defendant's request was not timely according to the rule and the trial judge was correct in denying it as being untimely. The defendant, however, raised before the trial court and on appeal the question of his consent to his attorney's agreement to have the matter tried before Judge Richey:
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...the witness was not available to testify in court and defendant and counsel were present at the taping session. See also State v. Reid, 114 Ariz. 16, 559 P.2d 136 (1976), cert. denied, 431 U.S. 921, 97 S.Ct. 2191, 53 L.Ed.2d 234 In People v. Heading, 39 Mich.App. 126, 197 N.W.2d 325 (Ct.App......
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