State v. Smith

CourtSupreme Court of Arizona
Citation123 Ariz. 231,599 P.2d 187
Docket NumberNo. 4021,4021
PartiesSTATE of Arizona, Appellee, v. Joseph Clarence SMITH, Jr., Appellant.
Decision Date13 July 1979

Robert K. Corbin, Atty. Gen., John A. LaSota, Jr., Former Atty. Gen., William J. Schafer, III, Chief Counsel, Crim. Div., Lynn Hamilton, Assistant Attys. Gen., Phoenix, for appellee.

Stephen M. R. Rempe, David W. Basham, Phoenix, for appellant.

GORDON, Justice:

Defendant Joseph Clarence Smith appeals his convictions and sentences for two counts of first degree murder. Having jurisdiction pursuant to A.R.S. § 13-4031, we affirm the decisions of the Superior Court.

Early in 1976, the nude bodies of Sandy Spencer and Neva Lee were found in the desert at two different times and locations. Within less than one month, both teenage girls had been killed by asphyxiation, dirt having been forced into their mouths, which were then taped closed. Both had received stab and puncture wounds inflicted upon various parts of their bodies before and after death.

On November 4, 1976, defendant was indicted for the murders of Sandy Spencer, Count I, and Neva Lee, Count II. The counts were severed, and after extensive pre-trial motions, defendant was tried by jury and convicted of Count II, the murder of Neva Lee. Shortly after trial began on Count I, defendant changed his position and pled guilty to the murder of Sandy Spencer. After denial of his motion to have his guilty plea set aside, defendant was sentenced to the gas chamber on each count.

On appeal, defendant raises twelve issues for this Court's review:

1. Should the County Attorney's office have been disqualified from prosecuting the case, because one of its attorneys was with the Public Defender's office when that office represented defendant in another case?

2. Was there a factual basis, in compliance with 17 A.R.S. Rules of Criminal Procedure, rule 17.3, for defendant's guilty plea to Count I?

3. Did the trial court abuse its discretion in refusing to grant a change of venue because of pre-trial publicity?

4. Did the trial court err in denying defendant's motion for the appointment of an expert public opinion researcher?

5. Did the trial court err in refusing to appoint a jury selection expert to assist defense counsel?

6. Was the jury panel improperly questioned and, therefore, was defendant deprived of an impartial jury?

7. Did the prosecution fail to disclose prior felony convictions of a state witness in contravention of due process and 17 A.R.S., Rules of Criminal Procedure, rule 15.1?

8. Should the court have suppressed certain physical evidence seized from defendant's home, place of business and automobile?

9. Was the jury improperly polled?

10. Did the trial court err in failing to find mitigating circumstances?

11. Did the Arizona Supreme Court err in upholding the constitutionality of A.R.S. § 13-454, Arizona's death sentencing statute, after finding § 13-454 F severable from the remainder of the statute?

12. Was the defendant illegally sentenced, because the trial court sentenced him to be administered lethal gas without mention of the word "death?"


Several years before defendant became involved in this case, he was represented by the Public Defender's office during prosecution on a different charge. At that time, Rudolph Gerber was a member of the Public Defender's office. Subsequently, Mr. Gerber joined the Maricopa County Attorney's office. He worked strictly in an administrative capacity and had no part in defendant's prosecution for Count II. He did, however, prosecute defendant for Count I.

Prior to trial on Count II, defendant moved to disqualify the Maricopa County Attorney's office from prosecuting the case, citing as a source of conflict of interest Mr. Gerber's former employment with the Public Defender. This motion was denied. Relying upon State v. Latigue, 108 Ariz. 521, 502 P.2d 1340 (1972), defendant now argues that this denial was error, because the appearance of impropriety should have disqualified In Latigue, a Deputy Public Defender, who had himself represented Latigue, became a Deputy County Attorney, while the prosecution in that same case was ongoing, albeit by a different member of the County Attorney's office. This Court imputed the Deputy County Attorney's knowledge of confidential information about Latigue to all members of the County Attorney's office and precluded that office from prosecuting.

                the County Attorney's office.  1  We disagree

The facts of the instant case are clearly distinguishable from those in Latigue. Mr. Gerber did not himself represent defendant in the prior case, and he testified at a pre-trial hearing that he had spoken to no one at the Public Defender's office regarding that case and, therefore, knew nothing about it. Thus, he possessed no confidential information about the defendant from which to impute knowledge to the County Attorney's office. See State v. Lozano, 121 Ariz. 99, 588 P.2d 841 (App.1978). Additionally, Latigue was concerned with involvement in the Same case by a former Public Defender who subsequently became a Deputy County Attorney. Mr. Gerber worked at the Public Defender's office when it represented defendant in another case. We find no error.


Following defendant's conviction for Count II the murder of Neva Lee, he abruptly pled guilty to Count I, the slaying of Sandy Spencer, shortly after trial had begun on this charge. Defendant contends that there was no factual basis for the plea, as required by 17 A.R.S., Rules of Criminal Procedure, rule 17.3. He argues that there was no attempt by the trial court to determine whether he acted with malice.

We disagree. It is readily apparent from the transcript of the plea hearing that the trial court did not merely ascertain that the defendant committed the death-causing act, as defendant now contends. At this hearing, the defendant admitted that he intended to cause the death of the victim, and such intent expressly demonstrates malice. See A.R.S. § 13-451 B. The following colloquy took place between the defendant and the prosecutor, who was questioning him at the court's direction:

"Q. Did you do these injuries to her body while she was still alive?

"A. No.

"Q. You did it after she had been killed?

"A. I did it when I thought she was dead to make sure."

(Further examination by the Court)

"Q. When you forced dirt into Sandy Spencer's mouth and up her nose, did you do it with the intention of killing her?

"A. Yes."

Additionally, defendant's testimony at this hearing demonstrates his lack of excuse or justification for the killing:

(Examination by the Court)

"Q. Why did you kill her?

"A. No reason.

"A. She got me mad about something and I tied her up first. Then after that, that's when I killed her."

Defendant also contends that his guilty plea should have been set aside because of his "almost immediate recantation," because:

"(I)f a defendant pleads guilty to a criminal charge, and in the next breath contravenes the plea by asserting facts which, if true, would establish that he is not guilty, then his guilty plea is of no effect and should be rejected." Commonwealth v. Roundtree, 440 Pa. 199, 202, 269 A.2d 709, 711 (1970).

The foregoing legal principle refers to a defendant's contradictory statements made in the presence of the judge at the plea proceedings, a situation that would "show

that the plea was not entered with a complete comprehension of its impact." Commonwealth v. Roundtree, 440 Pa. at 202, 269 A.2d at 711. Defendant's alleged "recantation" consisted of an angry statement to a detective who had goaded him After the plea proceeding. Defendant called him an epithet and said, "You know I didn't do it." This statement has no bearing on the validity of defendant's guilty plea, which we find, after examination of the entire plea hearing transcript, to have been knowingly, intelligently and voluntarily made, as well as factually based.


Defendant next alleges as error the trial court's denial of his motion for a change of venue. He contends that this denial was an abuse of discretion, because the publicity in the case was "so massive that most intelligent residents of Maricopa County had some prior knowledge of it."

Prior knowledge of a case, however, does not by itself disqualify a juror. See Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). A juror need not be totally ignorant of the facts and issues involved if he is able to lay aside his impressions or opinions and render a verdict based on the evidence. Murphy v. Florida, supra; Irvin v. Dowd, supra; State v. Smith, 116 Ariz. 387, 569 P.2d 817 (1977). We have carefully reviewed the transcript of the jury's individual voir dire questioning. Five of the panel members who ultimately tried the defendant had no knowledge whatsoever of the case. The other seven vaguely remembered hearing minimal information about the case from T.V. or newspaper coverage. The trial court ascertained, through questioning, that the jury members were determined to reach a verdict based solely on the evidence presented at trial.

Under certain circumstances, a defendant may be entitled to a change of venue, because of pre-trial publicity, without an examination of the effect of the publicity upon the jury members. Thus, in a number of cases in which the influence of news media was deemed so outrageous that it pervaded the proceedings, prejudice has been presumed. See Murphy v. Florida, supra. These cases include Rideau v. State of Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); Estes v. State of Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965), Rehearing denied, 382 U.S. 875, 86 S.Ct. 18, 15 L.Ed.2d 118 (1965) and Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d...

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