State v. Swinburne
| Decision Date | 21 September 1977 |
| Docket Number | No. 3473,3473 |
| Citation | 116 Ariz. 403,569 P.2d 833 |
| Parties | The STATE of Arizona, Appellee, v. Steven SWINBURNE, Appellant. |
| Court | Arizona Supreme Court |
Bruce E. Babbitt, Atty. Gen., Phoenix by Heather Sigworth, Asst. Atty. Gen., Tucson, for appellee.
Stanton Bloom, Tucson, for appellant.
Defendant, Steven Swinburne, was convicted of first degree murder, A.R.S. §§ 13-451, 452 and 453; two counts of kidnapping with serious bodily injury, A.R.S. §§ 13-491 and 492; and burglary while armed, A.R.S. §§ 13-301 and 302. He received concurrent sentences of life imprisonment on the murder and kidnapping charges and not less than ten nor more than fifteen years on the burglary charge. He appeals from his conviction on all counts. We have jurisdiction pursuant to A.R.S. § 13-1711.
The defendant raised some 17 issues for consideration. We believe the answers to the following questions will be dispositive of the appeal.
1. Did the trial court err in restricting the cross-examination of a prosecution witness?
2. Was it error to admit evidence of an assault committed by the defendant some ten days prior to the murder?
3. Should the defendant's pretrial statements have been suppressed?
4. Was it error for the trial court to deny immunity to a defense witness?
5. Did the trial court err in admitting evidence and instructing on the issue of flight?
The following facts are necessary for a resolution of the issues presented. In the early morning hours of 29 May 1974, the body of William Kim Sigsworth was found at a residence located at 1925 North Justin Lane, Tucson, Arizona. There were numerous bruises, cuts and abrasions on the deceased. The cause of death was a single bullet wound in the back. The deceased had been visiting friends in Tucson and was staying at the house on Justin Lane. At the time, Al Reynolds, Roger Johns and Tom Withers were living in the house.
Evidence at trial indicated that the defendant and Carl Gundersen had, for some time, been dealing in marijuana in the Tucson area. Gundersen and his girlfriend, Chris Sterling, had contacts in Mexico who were supplying them with regular shipments. Sterling and Gundersen, however, did not want to "deal" the marijuana themselves and had agreed to allow the defendant to do the selling. Approximately a week and a half prior to the murder, defendant arranged to store a 600 pound shipment at the home of Dale Friess, a friend of his. This arrangement was made at Gundersen's request. While the marijuana was stored at his house, Friess offered to sell some of it to Al Reynolds and Tom Withers. Reynolds and Withers came by and looked at it but declined to purchase any. That evening after half the shipment had been sold, two men wearing ski masks and carrying guns broke into Friess' house, tied him up, and took the remaining 300 pounds of marijuana.
Believing that no one else knew where the marijuana was stored, defendant and Gundersen suspected Reynolds, Withers and their roommate, Roger Johns. They were told that Reynolds, Withers and Johns had "ripped off" dope on other occasions and that upon being confronted they had, on several prior occasions, returned the stolen drugs rather than risk involving the police.
Shortly after dark on 28 May 1974, defendant along with Gundersen, John Crone, Clay Free and John Sanders, drove to the house on Justin Lane. They intended to confront Reynolds, Withers and Johns and recover the marijuana or its value. Defendant had told a friend of his that if necessary he would drive the three of them to Mexico and "force them to dig their own graves until either the marijuana or some money came up." Parking some distance from the house, they parted and approached it from different sides. Clay Free and John Sanders walked down the alley behind the house while the defendant, Gundersen, and Crone approached from the front.
Testimony as to who entered the house first and as to exactly what occurred inside is conflicting. It would appear, however, that the defendant and Crone entered at approximately the same time followed by Carl Gundersen a few minutes later. When and under what circumstances Free and Sanders entered the house is also unclear. However, it is agreed that they remained inside for only a short period and that their participation was minor.
Al Reynolds and Kim Sigsworth were the only ones home. Gundersen testified that by the time he entered the house, Reynolds and Sigsworth were already lying on the floor and that one of them was bleeding. He testified that defendant and Crone took Reynolds into a bedroom; that defendant kept yelling at Reynolds about the marijuana and that after a few minutes defendant came running out of the bedroom, leaned over Sigsworth and hit him on the head with the gun. Gundersen testified that as he did, the gun went off striking Sigsworth in the back. Crone substantiated this story.
Defendant took the stand and testified to the contrary, that while Crone was in the bedroom, Gundersen had told defendant to go outside and find Free and Sanders. While he was in the backyard looking for the two of them, he heard a muffled shot and when he returned to the house, Sigsworth was "slumped against" Gundersen.
Immediately following the shooting, Gundersen ran from the house to his car and drove away. Crone picked up Reynolds and carried him out to the front yard. At trial, Crone testified that when he put Reynolds down, Reynolds immediately got up and started running. At that point, according to Crone, defendant leveled his gun at Reynolds stating, "we can't have any witnesses", but that before defendant could fire, he, Crone, grabbed the gun away from him. Defendant denied this series of events stating that he had attempted to call the police following the shooting but that the phone line had been cut.
Reynolds awoke the next morning in the alley behind the house. He had been severely beaten and had no recollection of any of the events of the preceding night.
Defendant was initially arrested on 13 August 1974. At that time, he was registered at the Linda Vista Motel under the name of Michael Durham. Bail was posted and defendant was released from custody on 16 September. Subsequently, on the 24th of December 1974, the Court of Appeals ordered that defendant be held without bond pending trial. A bench warrant was issued for defendant's arrest, however, he could not be located and his bond was subsequently forfeited. Some six months later, on 21 June 1975, defendant was taken into custody at the Black Arrow Lodge. He was registered under the name of Mike Wallace.
Trial before a jury was held in January of 1976. From a jury verdict and judgment of guilt, defendant appeals.
As indicated, defendant took the stand at trial and admitted his presence at the house on Justin Lane. His defense was directed at establishing that the fatal shot was fired by Carl Gundersen, not by himself. To counter this argument, the State introduced both circumstantial evidence and the direct testimony of Carl Gundersen.
As its only rebuttal witness, the prosecution called Scott Zarnes. Zarnes had known the defendant for about three years. During the months following the murder, defendant contacted Zarnes several times for help. At one point, Zarnes gave him $40 to help pay his bill at the Linda Vista Motel. Zarnes, at the same time, kept the police informed as to the time and content of defendant's telephone calls. At trial Zarnes testified as to some of these calls:
Following this extremely damaging testimony, the county attorney asked Zarnes the following questions and received these responses:
It is the contention of the defendant that this was not the only promise made to Zarnes in return for his cooperation. When Zarnes first talked to Detective Reyna (prior to defendant's arrest), a presentence investigation was being conducted by authorities in Missouri. The defense sought to establish that Reyna had impliedly promised not to inform the Missouri officials of the events which had occurred in Tucson.
At the hearing held on the State's motion to suppress, Zarnes stated:
Zarnes denied that Reyna had made any promises to him in return for his testimony.
A tape recording was made of this interview. However, portions of this tape were inaudible. The parties agree that the audible portions of the tape revealed the...
To continue reading
Request your trial
-
State v. Jeffers, 4253
...the public interest would be best served by a grant of immunity. State v. Verdugo, 124 Ariz. 91, 602 P.2d 472 (1979); State v. Swinburne, 116 Ariz. 403, 569 P.2d 833 (1977); State v. Buchanan, 110 Ariz. 285, 518 P.2d 108 (1974). Nevertheless, he urges that these cases are not controlling be......
-
State v. Edwards, 3957-2
...as raising an inference that the accused is guilty. State v. Loyd, 126 Ariz. 364, 367, 616 P.2d 39, 42 (1980); State v. Swinburne, 116 Ariz. 403, 413, 569 P.2d 833, 843 (1977). Evidence of an accused's resistance to arrest is also admissible as evidence of consciousness of guilt, and thus o......
-
State v. Routhier
...him on the inconsistencies between his hospital statement to Detective Locksa and his statements at trial. In State v. Swinburne, 116 Ariz. 403, 569 P.2d 833 (1977), we In Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975), the Supreme Court held admissible for impeachment p......
- State v. David Young