State v. Scott

• Decision Date: 02 December 1969
• Docket Number: No. 2,CA-CR,2
• Parties: The STATE of Arizona, Appellee, v. Larry Whimper SCOTT, Appellant. 179.
• Court: Arizona Court of Appeals

Page 712

461 P.2d 712

11 Ariz.App. 68

The STATE of Arizona, Appellee, v. Larry Whimper SCOTT, Appellant.

No. 2 CA-CR 179.

Court of Appeals of Arizona, Division 2.

Dec. 2, 1969.

Rehearing Denied Jan. 15, 1970.

Gary K. Nelson, Atty. Gen., by Carl Waag, Phoenix, for appellee.

Clay G. Diamos, Tucson, for appellant.

HATHAWAY, Judge.

The defendant, Larry Scott, was convicted of two counts of burglary, second degree, and appeals the judgments of conviction and sentences imposed thereon. The convictions are attacked on constitutional grounds: (1) The validity of a search warrant and (2) the denial of counsel at the defendant's preliminary hearing. The defendant was sentenced to 3 to 5 years on each count, the sentences to run consecutively. The sentences are challenged on the grounds that they are excessive and were based upon consideration of improper evidence.

The defendant moved to suppress evidence seized in a search of the premises where he resided. He contended in the trial court and here on appeal that the affidavit presented for issuance of a search warrant was not sufficient. The affidavit recited that the affiant had just, probable and reasonable cause to believe that there was in the possession of the defendant on certain described premises, certain described property. It further recited: 'THAT YOUR AFFIANT is a detective for the Tucson Police Department and is investigating numerous burglaries. That an individual showed your affiant where different burglaries took place and told your affiant what was taken. This story checked out with police reports of various burglaries. This individual told your affiant the afore-described man's suit was taken from 245 E. 4th, which in fact is (sic) was on July 22, 1968 as per Tucson Police report number 458540 and said suit is now hanging in the bedroom of Larry W. Scott at 739 1/2 N. 7th, Tucson, and was there very recently.'

The defendant contends that the search warrant and underlying affidavit were constitutionally inadequate according to the standards set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and amplified in Spinelli v. United States, 393 U.S. 410, 89 S.C. 584, 21 L.Ed.2d 637 (1969). Although reference is made in the briefs to 'other corroborative evidence' presented to the magistrate, the record discloses that the trial court, in ruling on the defendant's motion to suppress, considered only the face of the affidavit. We therefore limit our consideration in a like fashion. Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958). Aguilar, supra, announces the principle that reviewing courts must insist that the magistrate perform his 'neutral and detached' function and not serve merely as a rubber stamp for the police. Although recognizing that an affidavit may be based on hearsay information, the court stated:

'* * * the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, (citation omitted) was 'credible' or his information 'reliable.' Otherwise, 'the inferences from the facts which lead to the complaint' will be drawn not 'by a neutral and detached magistrate,' as the Constitution requires, but instead, by a police officer 'engaged in the often competitive enterprise of ferreting out crime,' (citations omitted), or, as in this case, by an unidentified informant.' 84 S.Ct. at 1514.

Thus we see that if the affidavit is based on hearsay the magistrate must be informed of underlying circumstances to support the affiant's conclusion that the property, subject of the search warrant, is where he claimed it to be and that the informant's report is reliable. We believe the affidavit herein involved met the 2-pronged test of Aguilar and provided a sufficient basis for a finding of probable cause. It clearly disclosed support for the informant's 'reliability' and for the affiant's belief that the property was in the designated location. Compare State v. flores, 447 P.2d 387 (Or.1968); State v. Ramirez, 447 P.2d 390 (Or.1968). There being a 'substantial basis' for the magistrate's finding of probable cause, the defendant's 'illegal search and seizure' argument fails. State v. McMann, 3 Ariz.App. 111, 412 P.2d 286 (1966).

The defendant further contends that the denial of his request for appointment of counsel at his preliminary hearing was violative of his Sixth Amendment right to counsel and denied him equal protection of the laws as mandated by the Fourteenth Amendment of the United States Constitution. On September 12, 1968, the defendant was held to answer and on September 20, 1968, an information charging two counts of second degree burglary was filed. On September 24, 1968, he entered a plea of not guilty as to each count and was granted five days in which to file motions directed toward the information. A timely 'Motion to Remand for Preliminary Hearing' was filed on the grounds that: (1) No transcript of testimony was made at the preliminary hearing, thus prejudicing the defendant's preparation of his defense; (2) lack of counsel at the preliminary hearing; and (3) loss of a 'source of discovery'.

It is true that a defendant has the right to have testimony at his preliminary hearing reduced to writing and a transcript filed in the case If he requests it. State v. Daniels, 96 Ariz. 375, 396 P.2d 4 (1964); Rule 28, Rules of Criminal Procedure, 17 A.R.S. However, as conceded by the defendant, no request was made by him. This lack of a reporter's transcript does not assume constitutional dimensions. State v. Moses, 101 Ariz. 426, 420 P.2d 560 (1966).

Although the trial court is vested with discretion to remand to the justice court for a new preliminary hearing, a showing of prejudice is a prerequisite to branding a denial of remand as error. State v. Soders, 101 Ariz. 376, 419 P.2d 733 (1966). The 'prejudice' required to be shown is that defendant's trial was prejudicially affected by the lack of counsel at his preliminary hearing. State v. Smith, 99 Ariz. 106, 407 P.2d 74 (1965); State v. Wise, 101 Ariz. 315, 419 P.2d 342 (1966). No such demonstration has been made here. Defendant's speculation that, had counsel been present at the preliminary hearing, he might have succeeded in obtaining a reduction of the charge, does not meet the requisite showing of prejudice.

We consider defendant's argument, raised for the first time on appeal, that denial of counsel at the preliminary hearing constituted denial of equal protection of the laws is equally without merit. He cites no authority for his position but argues that Maricopa County, which has implemented the legislation providing for a public defender, provides counsel to an indigent defendant at a preliminary hearing. Assuming arguendo that the Maricopa County practices are a fit subject of judicial notice, we cannot equate the non-appointment of counsel at every indigent defendant's preliminary...