State v. Watson

• Decision Date: 05 November 1976
• Docket Number: No. 3089,3089
• Citation: 559 P.2d 121,114 Ariz. 1
• Parties: The STATE of Arizona, Appellee, v. Spencer WATSON, Appellant.
• Court: Arizona Supreme Court

Page 121

559 P.2d 121

114 Ariz. 1

The STATE of Arizona, Appellee, v. Spencer WATSON, Appellant.

No. 3089.

Supreme Court of Arizona, In Banc.

Nov. 5, 1976.

Motion For Rehearing Denied Dec. 21, 1976.

Bruce E. Babbitt, Atty. Gen., by William J. Schafer, III, and Frank T. Galati, Asst. Attys. Gen., Phoenix, for appellee

Robertson, Molloy, Fickett & Jones, P.C., by Michael J. Meehan, Tucson, for appellant

CAMERON, Chief Justice.

This is an appeal by the defendant Spencer Watson from a jury verdict and judgment of guilt of first degree murder, A.R.S. §§ 13--451 and 452; armed burglary and burglary, A.R.S. § 13--302; armed robbery and robbery, A.R.S. §§ 13--641 and 643; theft of a motor vehicle, A.R.S. § 13--672; and obstructing justice, A.R.S. § 13--541. Defendant was sentenced to death on the murder count; concurrent 99 years to life sentences on the armed burglary, armed robbery and robbery counts; 14 to 15 years on the count of burglary; and time served on the theft of a motor vehicle and obstructing justice counts.

We must answer the following questions on appeal:

1. Was the preliminary hearing testimony of witnesses Linda Hagood, Jacqueline Knight, and Meredith Brown properly admitted into evidence?

2. Was the search of the apartment where the fruits of the crime were found an unlawful search and seizure?

3. Were the facts given to support a telephonic search warrant sufficient to support a finding of probable cause?

4. Did the trial court err in denying defendant's motion for change of venue?

5. Was the defendant's right to an impartial jury violated by the fact that he was tried in shackles?

6. Did the trial court abuse its discretion in admitting certain expert testimony?

7. Did the trial court err in refusing to disclose portions of the presentence report?

8. Was the defendant denied effective assistance of counsel?

9. Is Arizona's death penalty, A.R.S. § 13--454, void for vagueness or applied in an unconstitutionally discretionary or arbitrary manner?

10. Did the trial court err in refusing to conduct a post-conviction evidentiary hearing?

The facts necessary for a determination of this matter on appeal are as follows. On the evening of 30 May 1974, at approximately 9:00 p.m., one or more persons entered the home of Mr. and Mrs. Paul W. Miles, slipped pillowcases over the Miles' heads, bound their victims with coat hangers, forced them to lie on the floor and ransacked the house for approximately 45 minutes. Neither of the victims saw the intruders' faces, although Mr. Miles was able, from seeing one of the person's hand and arm, to say that he was black. At approximately 11:30 p.m., the Miles freed themselves and called the police. Missing were numerous items including credit cards, jewelry, silverware, and Mr. Miles' newly purchased 1974 Ford Gran Torino, which was colored light blue with a dark blue vinyl top.

At approximately 10:00 p.m. on the same night, two black men came to the door of Mr. Joseph Mascari who lived on the southwest side of Tucson approximately 3 miles from the Miles residence. Mr. Mascari spoke through a screen door to one of the men whom he identified at trial as the codefendant Timothy Reid, eventually refusing permission to use his telephone. Mr. Mascari observed the two men get into a car, which he described as a fairly new sedan with a light colored body and a darker roof. He testified that the men sat in the car which was parked across the street from his house for approximately 10 minutes before driving away.

At approximately 10:25 p.m., the two black males, one of whom displayed a gun, walked through an open door at the home of Mr. and Mrs. Albert Gallman a few blocks from the Mascari residence. The men ordered Mr. and Mrs. Gallman, who were in their dining room downstairs, to get down on the floor; one of the intruders threw a blouse over Mrs. Gallman's head. At the defendants' trials, Mrs. Gallman Once Mr. and Mrs. Gallman were on the floor, the two men demanded money; one of them searched through Mrs. Gallman's purse, complaining when he discovered that it contained only $5 and some credit cards. Meanwhile, the other went upstairs, fired a shot, and forced his way into the bedroom of Nancy Gallman de Muth, the Gallman's daughter. Nancy testified that the man pointed a gun at her and ordered her to lie face down on the bed. She then heard footsteps, followed by a series of gunshots and Mr. Gallman crying out. At that point, she opened her window and slid down a pipe to the ground. At about the same time that the first shot was fired, Mrs. Gallman got up and ran out of the house.

identified Spencer Watson and Timothy Reid as the men, stating that Reid carried the gun.

Although not clear, it would appear that Mr. Gallman, a border patrolman, obtained a gun and fired twice before being shot 4 times in the back, and that he died as a result of his wounds. There was evidence to suggest that Mr. Gallman grabbed his revolver, which he usually kept in a briefcase in the living room and fired at defendant Reid as Reid was exiting the house. According to this version of the facts, Watson, coming down the stairs, saw Gallman firing at Reid and shot Gallman from behind.

The police investigation, which began at the Gallman residence and continued at the Miles residence, developed the following facts linking Spencer Watson to the crimes: (1) a fingerprint identified as that of Watson was found in Mr. Miles' Torino which was discovered abandoned in the desert in the early morning of 31 May 1974; (2) when the car was discovered the seat belt on the driver's side had been partially burned and a piece of the plastic bracket holding the shoulder harness away from the seat had been broken off; and (3) a number of items including some plastic spoons stated by Mr. Miles to have been left by him in his car and a piece of plastic which, according to Tucson Police Detective Reyna's testimony, matched the broken piece of the shoulder harness bracket, were found in the street across from the Mascari residence near the spot where, according to Mascari, the car driven by the individuals who came to his house had been parked.

At approximately 9:00 a.m. on 31 May 1974, Detective Reyna, who was aware that a fingerprint lifted from the Miles' vehicle had been matched to a known print of Spencer Watson, spoke to Tucson Police Detective Martin. Martin informed Reyna that on 24 May 1974, Martin and an informant named Gary Lester Thompson had driven around Tucson while Thompson provided information. Thompson had pointed out an apartment at 8570 East Cooper Street which he said was 'frequented' by Spencer Watson. Martin stated that Thompson had also told him that Watson had access to Thompson's car, a white over silver-grey Cadillac.

After determining that the Cadillac was parked at the apartment complex pointed out by Thompson, five police officers including Detectives Reyna and Martin, proceeded to the apartment. The officers, with guns drawn, knocked on the door which was answered by an individual later identified as Linda Hagood. The officers informed Hagood that they were investigating a homicide and were looking for Spencer Watson whom they had reason to believe was in the apartment. She stated that Watson was not there, but the officers indicated that they would like to look for him. Hagood then opened the door, again stating that Spencer was not there, but that the officers could come in and look.

The officers entered the apartment and proceeded to check areas which might conceal a person. Upon entering the northwest bedroom, Detective Reyna noticed an object causing the skirt of the bedspread to protrude. Thinking that someone might be hiding underneath the bed, Reyna drew his gun, lay down on his abdomen and lifted the bedspread. He observed a partially open pillowcase containing various items. In particular he noticed an American Express Card bearing the name 'Miles' and some pieces of silver and turquoise jewelry. At approximately 11:30 a.m. on 31 May, Reid and Watson were stopped for questioning by a uniformed police officer who observed the two shaking a gate and then running away at the sight of a policeman. As the officer was attempting to frisk the two men for weapons, Reid ran away from the scene. The officer grabbed Watson by the arm, but as he looked up to follow Reid's flight, Watson struck him in the left temple and also ran off. The two suspects were apprehended separately following a brief search. The obstruction charge arose out of this incident.

At that point, he withdrew without further searching the contents of the pillowcase and telephoned a judge to obtain a telephonic search warrant pursuant to A.R.S. § 13--1444(C). After obtaining the telephonic warrant, the officers conducted a full search of the premises and seized a number of items later introduced into evidence as having been taken from the Miles and Gallman residences.

Reid and Watson were originally charged as codefendants. A defense motion to sever was granted on 29 July 1974 after the arraignment and omnibus hearing. On 6 September a consolidated hearing was held on various motions including defendants' motions to have a change of venue, to suppress evidence, statements and identification, and to declare the death penalty unconstitutional, as well as a motion by the State to videotape testimony. The court, by minute entry dated 10 September 1974, denied the defendants' motion for change of venue and their death penalty motion. On 18 September 1974, the court denied the motion to suppress evidence and granted the motion to suppress statements of defendant Reid. The defendants were tried separately.

THE ADMISSION OF PRELIMINARY HEARING TESTIMONY

Linda Hagood, Jacqueline Knight, and Meredith Brown were among the witnesses who testified at the preliminary hearing. One of the girls, Meredith Brown, age 18, and the defendant Watson's girlfriend, testified to riding with Watson and Reid the night of...