State v. Via
| Decision Date | 12 June 1985 |
| Docket Number | No. 6322,6322 |
| Citation | 146 Ariz. 108,704 P.2d 238 |
| Parties | STATE of Arizona, Appellee, v. William Dabney VIA, Jr., Appellant. |
| Court | Arizona Supreme Court |
Cunningham, Tiffany & Hoffmann, P.A., Phoenix by John Foreman, for appellant.
Defendant, William Dabney Via, Jr., was convicted by a jury of first degree murder, A.R.S. § 13-1105; three counts of theft of property valued in excess of $1,000, A.R.S. § 13-1802; and two counts of fraudulent schemes and artifices, A.R.S. § 13-2310. The trial court entered a judgment of guilty on all charges and defendant was sentenced as follows: life imprisonment without possibility of parole or release for twenty-five years on the murder conviction, A.R.S. § 13-703; ten years on the first theft count, A.R.S. § 13-702; fifteen years on the fraudulent schemes and artifices counts, A.R.S. §§ 13-604, -702; and twelve years on the remaining theft counts, A.R.S. §§ 13-604, -702. The sentence imposed for the first theft count was to run concurrently with the murder sentence, and the four other sentences were to run concurrent with one another but consecutive to the murder sentence. We have jurisdiction pursuant to Art. 6, § 5(3) of the Arizona Defendant raises nine issues on appeal:
Constitution, and A.R.S. §§ 13-4031 and -4035.
1. Pertaining to A.R.S. § 13-3905, Arizona's detention statute:
a. Is that statute unconsitutional on its face?
b. Were its provisions violated under the facts of this case?
2. Did the trial court improperly refuse to sever the homicide count from those relating to credit card fraud?
3. Was the indictment in this case multiplicitous and/or duplicitous?
4. Did the trial court err in refusing to ask defendant's requested voir dire questions pertaining to the religious preferences of the veniremen?
5. Was an in-court identification of defendant tainted by an unduly suggestive out-of-court identification procedure?
6. Was a hearsay writing of the victim incorrectly admitted into evidence against defendant?
7. Did the trial court permit improper character evidence to be admitted against defendant?
8. Was the testimony of an expert witness on eyewitness identification improperly limited?
9. Did the trial court err in refusing to give defendant's requested jury instruction on eyewitness identification?
The facts follow. On 14 March 1983, John Madsen (the victim), a prominent Scottsdale, Arizona realtor, received a phone call from a "Ron Empie" concerning ten acres of recently inherited property he wished to sell. The caller stated that the parcel was located in the Pinnacle Peak area and that a home was erected upon it. The men ended their conversation by agreeing to meet at approximately 6:00 P.M. at a Denny's restaurant located at Scottsdale Road and Shea Boulevard.
The victim arrived at Denny's at the agreed upon time. Approximately ten minutes later, a neighbor observed him talking to a passenger while travelling north in his car on Scottsdale Boulevard. This was the last time he was ever seen alive. Two days later, his car was found in the long term parking garage at Sky Harbor International Airport in Phoenix. On 18 March, the police were informed that the victim's credit cards had been used in the Phoenix metropolitan area and in Tucson. One Tucson merchant, sensing something unusual about the credit card transaction, copied the license plate number of the white Chevrolet van driven by the purchaser. Subsequent checking revealed that the vehicle had been rented in Phoenix by defendant and that defendant's fingerprints were upon the credit sales' receipts bearing the victim's forged signature. Approximately eight months later, the victim's remains were found buried in a shallow grave in the desert north of Scottsdale. An autopsy revealed that he had been shot in the head from close range.
Several days after the victim disappeared, another realtor, Richard A. Funke, contacted the police after learning that the circumstances leading to the victim's disappearance were similar to one of his own recent experiences. Funke had received a phone call on 11 March 1983 from a "Richard Schibble." He claimed that he was from Flagstaff and that he recently inherited a large tract of land in the Pinnacle Peak area that he wished to sell. Funke testified that the call was highly unusual because he was a commercial realtor who received most of his business through referrals or solicitation. Furthermore, the caller claimed that he randomly picked Funke's name out of the Yellow Pages. Funke, however, did not have a Yellow Pages advertisement, and his one line listing was very inconspicuous. He nevertheless agreed to meet Schibble, who suggested that they meet at the Scottsdale Road Denny's at 6:00 A.M. on 14 March 1983. Funke kept the scheduled appointment. The two men met for approximately thirty minutes and parted ways after Funke declined Schibble's invitation to view the property. Funke later made both in and out-of-court identifications of defendant as the person with whom he had met.
Defendant was temporarily detained pursuant to a court order issued in accordance with A.R.S. § 13-3905. He was made to shave, appear in a live lineup, be photographed and fingerprinted. Defendant contends that the statute authorizing his detention is unconstitutional on its face and that, therefore, the evidence obtained against him was the fruit of an illegal detention. Alternatively, he asserts that, under the facts of this case, its provisions were violated.
A.R.S. § 13-3905 reads as follows:
Detention for obtaining evidence of identifying physical characteristics
A. A peace officer who is engaged, within the scope of his authority, in the investigation of an alleged criminal offense punishable by at least one year in the state prison, may make written application upon oath or affirmation to a magistrate for an order authorizing the temporary detention, for the purpose of obtaining evidence of identifying physical characteristics, of an identified or particularly described individual residing in or found in the jurisdiction over which the magistrate presides. The order shall require the presence of the identified or particularly described individual at such time and place as the court shall direct for obtaining the identifying physical characteristic evidence. Such order may be issued by the magistrate upon a showing of all of the following:
1. Reasonable cause for belief that a specifically described criminal offense punishable by at least one year in the state prison has been committed.
2. Procurement of evidence of identifying physical characteristics from an identified or particularly described individual may contribute to the identification of the individual who committed such offense.
3. Such evidence cannot otherwise be obtained by the investigating officer from either the law enforcement agency employing the affiant or the criminal identification division of the Arizona department of public safety.
B. Any order issued pursuant to the provisions of this section shall specify the following:
1. The alleged criminal offense which is the subject of the application.
2. The specific type of identifying physical characteristic evidence which is sought.
3. The relevance of such evidence to the particular investigation.
4. The identity or description of the individual who may be detained for obtaining such evidence.
5. The name and official status of the investigative officer authorized to effectuate such detention and obtain such evidence.
6. The place at which the obtaining of such evidence shall be effectuated.
7. The time that such evidence shall be taken except that no person may be detained for a period of more than three hours for the purpose of taking such evidence.
8. The period of time, not exceeding fifteen days, during which the order shall continue in force and effect. If the order is not executed within fifteen days, a new order may be issued, pursuant to the provisions of this section.
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* * *
D. For the purposes of this section, "identifying physical characteristics" includes, but is not limited to, the fingerprints, palm prints, footprints, measurements, handwriting, handprinting, sound of voice, blood samples, urine samples, saliva samples, hair samples, comparative personal appearance, or photographs of an individual.
Defendant concedes that we upheld the constitutionality of the predecessor to A.R.S. § 13-3905 in State v. Grijalva, 111 Ariz. 476, 533 P.2d 533, cert. denied, 423 U.S. 873, 96 S.Ct. 141, 46 L.Ed.2d 104 (1975). He contends, however, that Grijalva needs to be reexamined in light of subsequent In Dunaway, the defendant was interrogated at a police station after having been taken into custody without judicial authorization and on less than probable cause. Under these facts, the United States Supreme Court reversed the defendant's conviction. Dunaway is distinguishable from the instant case in three respects. First, as indicated, the defendant in Dunaway was taken into custody on less than probable cause. 1 In the instant case, however, defendant concedes that there was probable cause to arrest him as to the counts in the indictment alleging credit card fraud and theft from the issuing banks.
United States Supreme Court authority which he claims casts serious constitutional doubt upon its continued vitality. In particular, defendant claims that the case of Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), makes it clear that the statute at issue is violative of the Fourth Amendment to the United States Constitution. We do not agree.
Second, in Dunaway there was no prior judicial authorization. Our statute explicitly mandates that no detention order shall issue absent judicial...
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