State v. Snowden, No. 2

• Court: Court of Appeals of Arizona
• Writing for the Court: BIRDSALL; HOWARD, C.J., and HATHAWAY
• Citation: 138 Ariz. 402,675 P.2d 289
• Decision Date: 07 November 1983
• Docket Number: CA-CR,No. 2
• Parties: The STATE of Arizona, Appellee, v. Charles Anthony SNOWDEN, Appellant. 2701.

Page 289

675 P.2d 289 138 Ariz. 402 The STATE of Arizona, Appellee,
v.
Charles Anthony SNOWDEN, Appellant. No. 2 CA-CR 2701. Court of Appeals of Arizona,
Division 2. Nov. 7, 1983.
Review Denied Jan. 24, 1984.

[138 Ariz. 403]

Page 290

Robert K. Corbin, Atty. Gen. by William J. Schafer III and Gerald R. Grant, Asst. Attys. Gen., Phoenix, for appellee.

Michael B. Bernays, Tucson, for appellant.

OPINION

BIRDSALL, Judge.

The appellant was convicted of armed robbery, kidnapping and burglary in the first degree. He received three concurrent seven-year sentences.

On appeal he contends (1) the jury should not have had a tape-recording admitted as an exhibit during its deliberations; (2) the initial stop of the appellant was illegal; (3) evidence that Miranda warnings were given should not have been permitted; (4) statements of an alleged co-conspirator should not have been permitted, and (5) the appellant was denied a fair trial by the cumulative effect of the errors and the prosecutor's conduct. We affirm.

At around 9 a.m. on June 25, 1981, Kathryn O'Brien was working at a Pizza Hut restaurant in Tucson. The restaurant had not opened for business for the day and she was preparing dough in the rear of the store. As she worked, Kenneth Kemp came in through the back door with a gun in his hand. He told her that he wanted money and would not hurt her. She opened the cash register and a floor safe and Kemp removed over $200. Kemp ordered her to lie face down on the floor. When she complied, he called out, "Come on in, partner." Ms. O'Brien did not see or hear a second person, but felt someone tying her hands while a second person tied her feet. After hearing the back door close, she waited several minutes before freeing herself and calling the police. She described Kemp as a black man with dark, kinky hair, a stocky build, wearing tennis shorts and a white, three-button pullover shirt with dark sunglasses.

Deputy James Bawulski was on duty that morning in his patrol car. After hearing the radio report of the robbery which first went over the air at about 9:35 a.m., he began searching the area for suspects. When a dispatcher broadcast a description of the man that Ms. O'Brien had seen he stopped to copy it down. At this point, a car passed by and the deputy noticed that the passenger, who matched the description of the robber, was watching him. He then followed the car to a Circle K, where both the driver and the passenger got out and went into the store. The deputy continued to watch the two men and a short time later the driver, who was later identified as the appellant, came outside. He looked at the deputy, walked quickly to the car, got in, and started the engine. The appellant honked the horn and began backing[138 Ariz. 404]

Page 291

up, whereupon the deputy blocked his path with his patrol car. The passenger, later identified as Kemp, then came out of the store, looked at the deputy, and went back in the store. He came out shortly thereafter carrying a brown paper bag and walked to the car. Deputy Bawulski told Kemp to wait, but Kemp told the deputy to wait while he put the bag down. Kemp opened the door, set the bag on the floor, and reached into a knapsack, pulling out a revolver. Seeing this, Deputy Bawluski drew his own gun and ordered Kemp to freeze. When Kemp dropped his gun, the deputy ordered appellant out of the car. Both appellant and Kemp were taken into custody.

Tape-Recording

The issue raised on appeal does not concern the admission of this exhibit, but rather the fact that the jury was permitted to have it during deliberations. The tape-recording was of the victim's call to the police emergency number, 911. In this call, Ms. O'Brien relates the facts we have already detailed, including her belief that there were two robbers. At one point during the call, there is a knock at the back door of the Pizza Hut and she states repeatedly, "Oh, God, I'm scared" and that she was "scared to death". The appellant argues that her fright is apparent from the emotion in her voice.

The appellant objected both to the admission of the exhibit, and later, to permitting the jury to have it during its deliberations. On appeal, we are concerned only with the court's ruling on the latter objection.

Whether tangible evidence should be given to the jury for use during deliberations is a matter left to the discretion of the trial court. Rule 22.2(d), Rules of Criminal Procedure, 17 A.R.S. Absent an abuse of that discretion, we will not find such a ruling erroneous. We considered this question in State v. Kennedy, 122 Ariz. 22, 592 P.2d 1288 (App.1979), citing with approval a Kansas opinion holding that an exhibit, a signed confession, was properly allowed to go to the jury room. Although there is some authority supporting the appellant's position, see State v. Payne, 199 Wis. 615, 227 N.W. 258 (1929), the trial court and this court on review must consider each case on its merits.

The appellant argues that the tape-recording contained the victim's entire account of the robbery and further would unduly arouse the passions of the jury because of her obvious terror. After the jury returned its verdicts,...