State v. Richmond

• Decision Date: 20 December 1976
• Docket Number: No. 2914,2914
• Parties: STATE of Arizona, Appellee, v. Willie Lee RICHMOND, Appellant.
• Court: Arizona Supreme Court

Page 41

560 P.2d 41

114 Ariz. 186

STATE of Arizona, Appellee, v. Willie Lee RICHMOND, Appellant.

No. 2914.

Supreme Court of Arizona, In Banc.

Dec. 20, 1976.

Bruce E. Babbitt, Atty. Gen. by William J. Schafer, III, and Grove M. Callison, Asst. Attys. Gen., Phoenix, James M. Howard, Pima County, Deputy County Atty., Tucson, for appellee.

John M. Neis, Pima County Public Defender by Frederick J. Dardis, Anne-Marie Brady, Asst. Public Defenders, Edward M. Bolding, Tucson, for appellant.

HOLOHAN, Justice.

Willie Lee Richmond was tried and convicted of the first-degree murder of Bernard Crummett in Pima County, Arizona. A sentencing hearing was held, and the defendant was sentenced to death.

Evidence introduced at trial showed that on the evening of August 25, 1973, the victim went into the Birdcage bar in Tucson and met Becky Corella, a dancer working there. Later that evening, Becky and Crummett went out to the parking lot to persuade the defendant to allow his 15-year-old girlfriend, Faith Erwin, to prostitute herself with Crummett. When both the defendant and Faith refused, a conversation ensued and eventually Becky decided to prostitute herself with Crummett. All four persons drove in Becky's borrowed station wagon to her motel apartment on the Benson highway.

When Becky and Crummett returned from the bedroom, the defendant whispered to Faith that the three of them were going to rob the victim, but not in the apartment because Crummett would remember the location. In the company of his two accomplices, the defendant drove the victim to a remote area outside Tucson and stopped the vehicle, saying the station wagon had a flat tire. When the victim got out of the car, the defendant beat him with his fists and rocks rendering the victim unconscious. Thereafter Becky and the defendant went through the victim's pockets taking his watch and wallet. In leaving the scene the vehicle was twice driven over Crummett who was still lying unconscious on the ground. The victim died from his injuries.

Although granted immunity, Becky Corella was not called upon to testify by either side. At trial, the crucial evidence against the defendant was the testimony of Faith Erwin and the defendant's own extrajudicial admissions. The defendant did not testify. The state's theory was that he perpetrated the homicide while engaged in robbery and thus committed first-degree murder. The primary defense theory was that because the robbery had terminated prior to the homicide the defendant could not be found guilty of first-degree murder under a felony-murder theory.

After the defendant was convicted, a sentencing hearing was held pursuant to A.R.S. § 13--454 to determine the sentence. The court rendered a special verdict finding the existence of two aggravating circumstances: 1) that the defendant was previously convicted of a felony involving the use or a threat of violence on other persons, and 2) that the defendant had committed the offense in an especially heinous and cruel manner. It found none of the statutory mitigating circumstances to be present. Based on its findings, the court sentenced the defendant to death. Subsequently, the defendant filed a Rule 32 petition claiming newly discovered evidence. The petition was denied. He appeals from the judgment and sentence and from the denial of his Rule 32 petition. The defendant's appeal raises the following issues:

I. Did the trial court commit reversible error in submitting the case to the jury on a felony-murder theory?

II. Did the trial court err by admitting the defendant's extrajudicial statements into evidence?

III. Was the testimony of the defendant's accomplice corroborated?

IV. Did the trial court abuse its discretion by admitting the photographs of the corpse?

V. Did the trial court commit reversible error by refusing to grant the defendant's requests for mistrials which were based on the alleged inadmissibility of certain items accepted into evidence?

VI. Did the court commit reversible error in summarily denying the defendant a Rule 32 hearing in relief?

VII. Does the imposition and implementation of the death penalty constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the Constitution of the United States?

VIII. Is the imposition of the death penalty excessive in this instance?

I.

The defendant submitted proposed instructions directing the jury not to consider any felony-murder instructions if they found that the robbery had been completed prior to the death of the victim. He contends that it was reversible error for the trial court to deny these instructions and permit a conviction for murder in the first degree based on a felony-murder theory.

In a leading case, the Missouri Supreme Court stated that the felony-murder statute, 'applies where the initial crime and the homicide were parts of one continuous transaction, and were closely connected in point of time, place and causal relation, as where the killing was done in flight from the scene of the crime to prevent detection, or promote escape.' State v. Adams, 339 Mo. 926, 98 S.W.2d 632 at 637 (1936). The majority of American jurisdictions have remained in accord with this rule. Annot. 58 A.L.R.3d 851 (1974).

Here, the evidence shows that the actions which caused the victim's death transpired during or immediately following the robbery as a part of the chain of events which the defendant's deliberate acts had set in motion. The defendant and his accomplices were fleeing from their crime when the vehicle was driven over the victim. The victim's death was a direct and proximate result of the robbery and so constitutes first-degree murder. State v. Hitchcock, 87 Ariz. 277, 350 P.2d 681 (1960), Cert. denied, 365 U.S. 609, 81 S.Ct. 823, 5 L.Ed.2d 821. Furthermore, the escape was an essential part of the robbery.

Recently, we have said, '(W)hen the felony is so entwined with the murder that it is part of that murder we will not hold a stopwatch on the events or artificially break down the actions of the defendant into separate components in order to avoid the clear intent of the legislature in enacting the felony-murder rule.' State v. Richmond, 112 Ariz. 228, 540 P.2d 700 (1975). Thus the facts in the instant case do not justify the instructions requested by the defendant and do support his conviction for felony-murder.

II.

The defendant contends that certain incriminating statements he made on September 11, 1973, while in custody were admitted at trial in violation of his Sixth Amendment right to counsel. At the time the statements were taken the defendant was already represented by the public defender on two unrelated murder charges. See State v. Richmond, supra, and State v. Richmond, 23 Ariz.App. 342, 533 P.2d 553 (1975). He had received a preliminary hearing and been bound over for trial on one of the charges. Earlier that same day he had been arraigned on the other charge after the return of a grand jury indictment.

Two police officers came to 'the holding tank' where the defendant had been returned after his arraignment, and served him with a warrant for his arrest on charges of robbing and murdering Bernard Crummett, the victim in this case. The officers read the defendant his Miranda rights and then recorded the statement he agreed to make.

They made no effort to contact the public defender before taking the statement; nor did they ask the defendant if he wished to summon the deputy public defender who was representing him on the other murder charges. Under similar circumstances, we have held that law enforcement officers are not under a constitutional duty to contact a lawyer for the accused if he makes a valid waiver of that right. State v. Marks, 113 Ariz. 71, 546 P.2d 807 (1976). See also Biddy v. Diamond, 516 F.2d 118 (5th Cir. 1975); U.S. v. Zamora-Yescas, 460 F.2d 1272 (9th Cir. 1972), Cert. denied, 409 U.S. 881, 93 S.Ct. 210, 34 L.Ed.2d 136 (1972); Coughlan v. U.S. 391 F.2d 371 (9th Cir. 1968), Cert. denied sub. nom., Coghlan v. U.S., 393 U.S. 870, 89 S.Ct. 159, 21 L.Ed.2d 139 (1968).

The defendant also contends that his admissions were not preceded by a knowing, intelligent and voluntary waiver of his constitutional rights. The evidence taken at the voluntariness hearing controverts that contention. The defendant did not testify at the hearing nor did he introduce any evidence to support his allegation. Since the record of the hearing supports the conclusion of the trial court, the statements of the defendant were properly found to be voluntary. State v. Durham, 111 Ariz. 19, 523 P.2d 47 (1974); State v. Hughes, 104 Ariz. 535, 456 P.2d 393 (1969).

Along with his Sixth Amendment argument the defendant contends that his admissions must be suppressed because they were obtained in violation of EC 7--18 and DR 7--104 of the Code of Professional Responsibility. These provisions forbid an attorney to converse with an opposing party outside the presence of that party's counsel. The defendant argues that the deputy county attorney violated the code when he used the defendant's statements which law enforcement officers had obtained by talking with the defendant outside the presence of his counsel.

The defendant does not allege, nor is there anything in the record which indicates, that the Pima County Attorney or staff were aware of that particular interrogation. Instead, he claims that as an indigent criminal defendant, dependent on publicly furnished counsel, he was denied a protection afforded to civil litigants with private counsel. We find no merit in that claim. The procedures for protecting the rights of criminal defendants have been outlined by the U.S. Supreme Court in such decisions as Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The cited portions of the Code of Professional Responsibility are generally assumed to be for the purpose of affording civil litigants some of the protection which the...