State v. Smith
| Citation | 136 Ariz. 273,665 P.2d 995 |
| Decision Date | 23 May 1983 |
| Docket Number | No. 5566,5566 |
| Parties | STATE of Arizona, Appellee, v. Roger Lynn SMITH, Appellant. |
| Court | Supreme Court of Arizona |
Robert K. Corbin, Atty. Gen. by William J. Schafer, III, Jack Roberts and Jessica Gifford, Asst. Attys. Gen., Phoenix, for appellee.
James H. Kemper, Phoenix, for appellant.
At about 10 o'clock on the morning of June 6, 1981 Roger Lynn Smith arrived at the Farmer's Liquor Store on South Central Avenue and Southern in Phoenix. He was with the Abila brothers, who had given him a ride as he hitchhiked to Phoenix; they rode in a car owned by one of the Abilas. Smith entered the store with a loaded sawed-off 20-gauge shotgun, took $158 from the cash register, and killed the clerk, Herman Helfand, with a single shot to the right temple. Smith then returned to the Abila vehicle and the three left the neighborhood.
Shortly after 5:00 in the evening on June 6, 1981 Officer Arthur Scott, of the Phoenix Police Department, and his partner, Reserve Officer Crosley, received an emergency call on their patrol car radio. The call reported a white male wearing blue jeans and no shirt who was "threatening" in the neighborhood of 30th Avenue and Sherman with a sawed-off shotgun. Scott and Crosley responded to the call and when they arrived they found Smith (who fit the description broadcast), the two Abilas and the Abilas' car which had become stuck in a hole in the dirt lot at the southeast corner of 30th and Sherman.
Smith was in the driver's seat of the car, turned to his left so that both feet were on the ground outside the open driver's door. His right arm was hanging by his side, with his hand in front of the seat, as Scott drove up. The Abila brothers were both outside the vehicle and Scott ordered all three to the rear of the car. Smith got out of the car and complied, leaving the driver's door open. At least two other police officers arrived on the scene immediately after Scott and Crosley, so Scott ordered one of them, Officer Mientel, to pat down all three men for weapons. Mientel found and retrieved ten rounds of 20-gauge shotgun ammunition from the pockets of Smith's jeans.
As Mientel began the pat-down search of the three men, Scott looked in the open door and saw the barrel of a shotgun on the floor of the car immediately beneath the front edge of the seat Smith had occupied. Upon seeing the shotgun barrel, Scott looked up and to the rear of the car in time to see Mientel taking shotgun shells out of Smith's pockets. Scott directed Mientel to handcuff Smith and seized the sawed-off shotgun from the car. Smith was then arrested for possession of a prohibited weapon, and booked into the Maricopa County jail. Within days he was re-arrested at the jail for the murder of Herman Helfand.
Smith was tried separately from the Abilas upon stipulation of counsel for the state and for the appellant. The trial to a jury on one count of first degree murder and one count of armed robbery began on March 15, 1982. After a mistrial, a second jury was selected and heard the evidence beginning on March 17, 1982. They rendered their verdicts of guilty on March 22, 1982. Smith was sentenced to 15 years in prison for armed robbery and, for murder, the court sentenced appellant to death after an aggravation/mitigation hearing. He appeals to this court his convictions and the death sentence imposed in Count I.
We have jurisdiction pursuant to A.R.S. § 13-4031 and § 13-4035, and Ariz.Const. art. 6, § 5(3), to review the record of this prosecution and the imposition of the death sentence.
The parties have posed these seven issues on appeal:
1. Was it reversible error for the trial court to deny appellant's motion to suppress the shotgun ammunition seized from his person pursuant to a pat-down search?
2. Was it reversible error to permit the jury to hear testimony on the character and family life of the victim?
3. Was it reversible error to submit only guilty and not guilty forms of verdict on the first degree murder charge?
4. Was it fundamental error to allow the prosecutor to argue crime statistics to the jury when those statistics were not in evidence?
5. Is Arizona's death penalty statute unconstitutional because it deprives the jury of any participation in the sentencing procedure?
6. Is Arizona's death penalty statute unconstitutional because it allows the court discretion to ignore matters offered in mitigation?
7. Is Arizona's death penalty statute unconstitutional because it gives the trial court inadequate guidance in the balancing of aggravating and mitigating circumstances?
Because we remand this matter for resentencing, we have not considered the remaining issue briefed in this court concerning the trial court's finding of one aggravating circumstance.
Appellant's first contention is that the trial court committed error when it denied his motion to preclude the use of the shotgun ammunition as evidence. His motion argued that the search of his person which produced this evidence was not supported by probable cause and could not be justified under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
Preliminarily, it is noted that the standard we apply in reviewing a trial court's ruling on a motion to suppress is "clear and manifest error," and we will not disturb such a ruling absent error of that degree. State v. Williams, 132 Ariz. 153, 644 P.2d 889 (1982). Moreover, we will view the facts in a light most favorable to sustaining the trial court's ruling. State v. Warren, 124 Ariz. 279, 603 P.2d 550 (App.1979).
Police may detain persons for investigation in circumstances which do not provide probable cause to arrest. When an officer is justified in believing that the detainee is armed, he may perform a pat-down search for weapons in the interest of safety. Finally, if a pat-down search produces an indication that the detainee has a weapon on his person, or what might be a weapon, the officer may retrieve it by reaching into or beneath the subject's clothing. Terry v. Ohio, supra.
Appellant and the state agree that Officer Scott was justified in detaining Smith, and we agree as well. Smith fit the description of a man that Scott had been told was at that location, dressed as Smith was and in possession of an illegal lethal weapon. Further, we agree with the parties that Scott was justified by these circumstances in having Smith patted down for weapons. Finally, we find that the police reasonably decided to inspect the contents of Smith's pockets which were bulging with shotgun ammunition. The police radio call had told both officers they might confront a shotgun, and therefore the search for and seizure of the shotgun shells was justified under Terry. Because we find that the shotgun rounds were legally seized, we hold that it was not error to deny appellant's motion to suppress.
Appellant contends that it was error to allow the jury to hear testimony from Peter Soliotis, the victim's work supervisor, about the work habits, character and family life of the victim, Herman Helfand. Specifically, he complains of this exchange:
In determining relevancy and admissibility of evidence, the trial judge has considerable discretion. State v. Starks, 122 Ariz. 531, 534, 596 P.2d 366, 369 (1979). " 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." 17A A.R.S. Rules of Evid., rule 401. "Evidence is relevant if it has any basis in reason to prove a material fact in issue." State v. Kennedy, 122 Ariz. 22, 26, 592 P.2d 1288, 1292 (App.1979).
Under these well-established principles, it seems clear that witness Soliotis' testimony concerning the character of the deceased victim was irrelevant. Evidence which is not relevant is not admissible. 17A A.R.S. Rules of Evid., rule 402. Accordingly, we hold that it was error to overrule appellant's objection to the prosecutor's question.
Nevertheless, all errors do not require reversal because not all errors are unfairly prejudicial. "If it can be said that the error, beyond a reasonable doubt, had no influence on the verdict of the jury, then we will not reverse." State v. McVay, 127 Ariz. 450, 453, 622 P.2d 9, 12 (1980). Here, appellant confessed his guilt to at least one cellmate who testified at the trial. Smith was found in possession of the murder weapon and ammunition similar to the round that caused the fatal wound. Additionally, his palm print was found inside the store where the homicide occurred. On these facts, we find beyond a reasonable doubt that Mr. Soliotis' brief description of the victim's family life did not influence the verdict. Accordingly, we hold that the error was nonprejudicial.
Appellant has urged that it was fundamental error for the trial court to present the jury with only two forms of verdict on the first degree homicide charge. The jury had the choice of finding Smith either guilty or not guilty of first degree murder. The indictment charged him with either premeditated murder or felony murder.
Smith contends that the forms of verdict presented to his jury denied the right to a...
To continue reading
Request your trial
-
Andrews v. Shulsen
...2950, 49 L.Ed.2d 929 (1976). Moreover, numerous recent state court opinions have rejected similar arguments. See, e.g. State v. Smith, 136 Ariz. 273, 665 P.2d 995 (1983); People v. Kubat, 94 Ill.2d 437, 69 Ill.Dec. 30, 447 N.E.2d 247, cert. denied, ___ U.S. ___, 104 S.Ct. 199, 78 L.Ed.2d 17......
-
State v. Fulminante
...absent a finding of fundamental error. State v. Thomas, 130 Ariz. 432, 435, 636 P.2d 1214, 1217 (1981). See also, State v. Smith, 136 Ariz. 273, 277, 665 P.2d 995, 999 (1983), appeal after remand, 141 Ariz. 510, 687 P.2d 1265 The error, if such, was waived. 7. EVIDENCE THAT A THIRD PARTY CO......
-
State v. Brewer
...statute to review issues affecting both judgment and sentencing in our search for fundamental error. See, e.g., State v. Smith, 136 Ariz. 273, 279, 665 P.2d 995, 1001 (1983) (finding of ineffective assistance of counsel at sentencing considered part of the court's "fundamental error" Appell......
-
U.S. v. Johnson
...a suspect during the course of a Terry stop and frisk, either weapons or ammunition or both." 110 Nev. 622, 877 P.2d 503, 509 (1994). In State v. Smith , the Supreme Court of Arizona held that an officer reasonably seized "the contents of Smith’s pockets which were bulging with shotgun ammu......