State v. Wiley, 6123

CourtSupreme Court of Arizona
Citation144 Ariz. 525,698 P.2d 1244
Docket NumberNo. 6123,6123
PartiesSTATE of Arizona, Appellee, v. Paul A. WILEY, Jr., Appellant.
Decision Date23 April 1985
Robert K. Corbin, Atty. Gen. by William J. Schafer III and Galen H. Wilkes, Asst. Attys. Gen., Phoenix, for appellee
Gentry, Desens & Behrens by Stephen M. Desens, Bisbee, for appellant

CAMERON, Justice.

Defendant, Paul A. Wiley, was convicted and adjudged guilty of first degree murder, A.R.S. § 13-1105(A)(2); burglary in the second degree, A.R.S. § 13-1507; kidnapping, A.R.S. §§ 13-1304(A)(3) and (4); and robbery, A.R.S. § 13-1902. Defendant was sentenced to life imprisonment without possibility of parole for twenty-five years for the murder, A.R.S. § 13-703; fifteen years for the burglary charge, §§ 13-604, -701; twenty-one years for the kidnapping charge, §§ 13-604, -701; and eight years for the robbery, §§ 13-701, -702. All sentences were to run concurrently. We have jurisdiction pursuant to Ariz. Const. Art. 6, § 5(3) and A.R.S. § 13-4031. We affirm.

We must decide the following issues:

1. Did the police have the requisite quantum of suspicion when they first stopped defendant at 4:30 and when they later arrested him?

2. Did the trial court err in denying defendant's motion to dismiss the felony murder count in the indictment or, in the alternative, in refusing to remand to the Grand Jury for a new determination of probable cause?

3. Did the trial court improperly refuse to sever defendant's case from his co-defendant's case?

4. Did the trial court conduct an improper voir dire of the jury?

5. Were the prosecutor's peremptory challenges against three black veniremen improper?

6. Were defendant's due process rights violated by the loss of certain evidence and the trial court's refusal to give the requested Willits instruction?

7. Should the trial court have directed a verdict of not guilty?

8. Did the trial court improperly instruct the jury concerning the causation elements of felony murder?

9. Should the jury have been instructed as to the elements of second degree murder, manslaughter and negligent homicide?

10. Did the trial court err in charging the jury on the elements of both felony murder and the underlying felonies?

The facts follow. On 10 May 1983, defendant, co-defendant Calvin Lawson, and Courtney Brown were driving from New Mexico through Arizona. At approximately 3:30 P.M., they entered Bowie, Arizona, which is located in Cochise County. They stopped at a gas station where they saw the victim, 70 year old Steven Bayne. Defendant and Lawson decided to follow him back to his house. They parked the car next to the field in the back of the victim's house, and the two men got out of the car to go inside. Before doing so, they took the sash from a turquoise colored robe that Ms. Brown had with her. They went into the house where they remained for approximately fifteen minutes. According to the testimony of Courtney Brown, when they returned, Lawson was carrying a tan case and the two men were discussing how "the old guy sure did put up a good fight." They then drove toward Pima County.

At approximately 6:00 P.M. that evening, Paul Ronquillo was driving past the victim's house. He noticed that smoke was coming out of one of the windows and called the fire department. The firemen arrived about ten minutes later. Although there were no open flames, the house was filled with heavy smoke.

A great deal of smoke was coming from the victim's bed. When the firemen turned their hoses onto it, they heard a crackling noise. They looked underneath the mattress and found a small lamp lying between the mattress and the box springs. The lamp was three to four inches from the edge of the bed. The mattress was completely scorched. A fire expert testified that the fire had started in the area where the lamp had been placed. A second expert testified that the light bulb had been slightly The firemen found the decedent lying face down in a hallway; his hands and feet were bound with a blue piece of material. An autopsy revealed that the victim had died from smoke inhalation. In addition, the medical examiner testified that the victim had numerous injuries on his face, thorax, brain, chest, arms, hips and legs indicating that he had been beaten.

unscrewed to create an arc and the lamp had started the fire.

Defendant was arrested at 7:50 that evening. On 13 May 1983 defendant was indicted for first degree murder, burglary in the second degree, arson, robbery and kidnapping. The arson count was subsequently dismissed. From his conviction and sentence, defendant appeals.


Defendant and his two accomplices were stopped at 4:30 P.M., released and then stopped and arrested at 7:30 P.M. Defendant now argues that both stops were illegal. He claims that the police needed probable cause for both traffic stops and that they did not have it at either time. As a result, he asserts that any evidence was illegally seized and inadmissible at trial. We do not agree.

1. The 4:30 Stop

The events that led to the initial stop were as follow: In order to enter Arizona, defendant had to drive through the San Simeon agricultural inspection station. At approximately 2:50, the Agricultural Inspector on duty received complaints from tourists that defendant's car, an old Falcon with Virginia license plate number CYP-114, had been weaving along the highway. She saw a car a few minutes later, weaving as it came to the station. It was a "beat-up looking, older model Falcon." While she and her supervisor made their inspection, she noticed that the occupants, two black males and a white female, seemed "giddy." She also observed that the woman was holding a beer can. The Agricultural Inspector wrote down the license number, VA CYP-114. After the car left the station, a truck pulled in. The driver informed the Inspector that the people in the car had attempted to sell him drugs and that the female passenger had offered sexual services. He had written down the license plate number, and it was the same as that of defendant's car. The Inspector then contacted the Department of Public Safety (DPS) and the Sheriff's Office in Wilcox, Arizona, some 80 miles west of San Simeon, informing them of both the truck driver's allegations and the possibility of a DWI.

At approximately 4:00 P.M., Deputies Allaire and Wolsagle, from the Cochise County sheriff's office in Wilcox, waited at Milepost 344 in Wilcox for the car to pass. While they were waiting, the truck driver stopped and told them of his earlier experiences with the passengers in the car. He described them as two Negro males and one white female. Because the officers thought the car might have stopped in Bowie, 30 miles west of San Simeon and 50 miles east of Wilcox, they radioed this information to the deputy there.

Several minutes later, as the deputies began driving toward Bowie, they saw the car--a late model Ford Falcon with Virginia license plate number CYP-114--carrying two black males and a white female. They stopped the car and checked the identification of all three passengers and the registration of defendant, who was driving. At that time, the police noticed some "roachclips" and open beer cans. They also saw a pair of binoculars, turquoise jewelry and a hunting knife. While one of the deputies conducted a field sobriety test with defendant, the second deputy noted a wristwatch lying on the pavement slightly under the car. He picked it up and asked Lawson whether he had thrown the watch out. Lawson stated that he had not and the deputy kept the watch. The deputies then helped jump start the car and allowed the parties to drive away. The entire stop took somewhere between thirty and forty-five minutes.

Defendant maintains that, under Dunaway v. New York, 442 U.S. 200, 99 S.Ct. We find that this was a proper stop. First, the deputies possessed the requisite suspicion. The Agricultural Inspector had informed them of the likelihood that the driver of the car was alcohol or drug impaired. Additionally, the truck driver indicated that defendant and his friends may have been transporting drugs and persons for the purpose of prostitution, both potential felonies. See A.R.S. §§ 13-3210, -3404. He gave both the deputies and the Agricultural Inspector an accurate description of the car and license plate, insuring his reliability. These facts created a reasonable suspicion of criminality sufficient to warrant the police making an investigative stop.

                2248, 60 L.Ed.2d 824 (1979), the police were required to have probable cause to believe that a felony had been or was about to be committed in order to warrant this stop.  He reads Dunaway to mean that "when one is rendered by the police unable to exercise his freedom of movement, probable cause is required to justify such detention, whether it qualifies as a full-blown arrest or not."   We believe defendant misread the law.  In Dunaway, "the detention of petitioner was in important respects indistinguishable from a traditional arrest."  Id. at 212, 99 S.Ct. at 2256, 60 L.Ed.2d at 835.   Petitioner was taken from a neighbor's house to the police interrogation room and never informed that he was free to go.  Id.  The court found that this treatment amounted to an arrest requiring probable cause.  Not all seizures, however, require probable cause.  In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court held that a police officer was free to detain a person in order to investigate criminal activity if he had a reasonable, articulable suspicion that a particular person had committed, was committing, or was about to commit a crime.  Thus, a person may be "seized" even though there is no probable cause to make an arrest.  Id. at 22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906.   To determine whether the seizure and ensuing search were reasonable, our inquiry is two-fold:  "first, one must consider 'whether the ... action was justified at

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