State v. Williams

• Decision Date: 28 April 1983
• Docket Number: No. 5467,5467
• Citation: State v. Williams, 664 P.2d 202, 136 Ariz. 52 (Ariz. 1983)
• Parties: STATE of Arizona, Appellee, v. Robert Lee WILLIAMS, Appellant.
• Court: Arizona Supreme Court

Page 202

664 P.2d 202

136 Ariz. 52

STATE of Arizona, Appellee, v.Robert Lee WILLIAMS, Appellant.

No. 5467.

Supreme Court of Arizona In Banc.

April 28, 1983.

Rehearing Denied June 8, 1983.

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

Bruce A. Burke, Tucson, for appellant.

CAMERON, Justice.

The defendant was convicted of kidnapping, A.R.S. § 13-1304, and first degree murder, A.R.S. § 13-1105, and appealed.We have jurisdiction under Ariz. Const. art. 6, § 5(3)andA.R.S. §§ 13-4031and13-4035.

We must answer three questions on appeal:

1.Did the trial court err in admitting into evidence the substance of a telephone conversation held between the defendant and a deputy county attorney?

2.Did the trial court err in ruling that the defendant's confessions were voluntary and thus admissible?

3.Did the trial court err in refusing to disqualify the prosecutor?

The facts needed to determine the issues are as follows.The victim was discovered unclothed on the bed in her mobile home.Her hands were bound behind her back with a piece of rope, and she had been gagged with a strip of cloth torn from a shirt.She had been strangled to death by a rope which was tightened around her neck.The body was discovered in a state of decomposition several days following death by the owners of the mobile home park.Foreign hairs were found on the body, which expert analysis later established to be microscopically indistinguishable from hair samples taken from the defendant.The defendant was arrested on charges of murder and kidnapping in May of 1981.

Counsel was initially appointed to represent the defendant.Later, in response to defendant's request, the trial court allowed the defendant to represent himself, while two attorneys were appointed as advisory counsel.The defendant's trial began on 10 November 1981, with the defendant conducting his defense based apparently on alibi.The state's case rested mainly on expert testimony relating to hair identification and a variety of incriminating statements made by the defendant.Particularly damaging to the defendant was a confession made in the early morning of 26 October 1981 to a sheriff's deputy and the lead detective in the homicide investigation.This confession was made following discussions between the defendant, the detective, and the prosecutor concerning the possibility of the defendant serving his sentences in a detention facility outside of Arizona.

The jury returned verdicts of guilty of first degree murder and kidnapping.A motion for a new trial was denied at sentencing on 11 December 1981.The defendant received a 14 year sentence for the kidnapping conviction, to be served consecutively to the life term for murder, both sentences to be served consecutively to two other convictions.Defendant appealed.

ADMISSIBILITY OF TELEPHONE CONVERSATION

On 10 September 1981, a person later identified as the defendant called Deputy County AttorneyBarbara Gelband and told her that on the previous weekend he picked up a female hitchhiker.In some detail, the defendant described how he took the victim to a motel and engaged in acts of bondage and intercourse with her.The conversation was taped.Defendant on appeal contends that the trial court erred by admitting into evidence this telephone conversation.

Defendant's advisory counsel on 28 September 1981 filed a motion in limine to suppress the tape recording of the conversation on the ground of lack of relevance.On 26 October 1981, at the hearing on the motion, the defendant indicated that he did not want to suppress the statement.After questioning by the court, at which time the defendant indicated that no threats or promises had been made, the court found that the defendant waived his right to suppress the statement.

On 2 November 1981, the trial court advised counsel that he had received a letter from the defendant in which the defendant alleged that he was threatened by a detective and the prosecuting attorney into waiving the motion to suppress.The trial court conducted a hearing and determined that this was not the case, and that the waiver was knowingly, intelligently and voluntarily made.Later, during the trial, the court on 17 November 1981 heard argument on whether the Gelband conversation was admissible on the ground of relevance, and ruled the evidence relevant.

We believe, as the trial court found, that the waiver of the motion to suppress was knowingly, intelligently and voluntarily made.We need consider only whether the statement was relevant, it being clear that the statement made to Officer Gelband was voluntary on the defendant's part.

The Rules of Evidence define relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable * * * than it would be without the evidence."Rule 401,Arizona Rules of Evidence, 17A A.R.S.We believe the substance of the Gelband conversation shows knowledge of the actual crime, and is evidence having a tendency to make the fact of defendant's participation in the crime more probable "than it would be without the evidence."

The following similarities exist between the facts of the crime and the substance of the Gelband conversation (1) In his second confession, the defendant states that "we had a relationship in the * * * shower."In the Gelband conversation, the defendant states that he washed the woman whom he had picked up hitchhiking while the two were in a motel room shower.

(2) The victim was found with her hands tied behind her.In the Gelband conversation, the defendant stated that he tied the woman's hands behind her back with strips cut from the motel bedspread.

(3) The victim was gagged with a strip of cloth torn from a shirt.In the Gelband conversation, the hitchhiker allegedly was gagged by the defendant with a strip of cloth.

(4) In the defendant's second confession, he stated that before intercourse he licked a substance from the victim's body.In the Gelband conversation, the defendant stated that before intercourse he licked water from the woman's body.

(5) In the defendant's second confession, he stated that he used a pillow in engaging in intercourse with the victim.In the Gelband conversation, the defendant stated that he used a pillow in engaging in oral sex with the woman.

We believe that the facts related by the defendant in the telephone conversation are sufficiently similar to the uncontested facts of the case and to the incidents of the crimes as described by the defendant in his confessions, and reflect knowledge that only the perpetrator could possess.It was evidence which made the existence of defendant's involvement in the murder more probable "than it would be without the evidence,"Rule 401, supra, and was properly admitted in evidence.

VOLUNTARINESS OF CONFESSIONS

A female probation officer interviewing the defendant in detention on an unrelated charge reported to the Pima County Jail authorities that the defendant exposed his genitals during their interview.The jail authorities forwarded the report through the police department to Detective Pantke, the lead detective in the victim's homicide investigation.Pantke advised Deputy Brennan that he did not want to contact Williams, and asked her to interview the defendant about the indecent exposure report.Brennan advised the defendant on arriving at the jail on 26 August 1981 that she wished to discuss the indecent exposure episode.The defendant informed Brennan of the reason for his detention--that he was in jail on a murder and kidnapping.Brennan stated that she was not there to investigate the murder and kidnapping.Nonetheless, defendant proceeded to bring up the murder charge.

The following day, Brennan contacted the defendant in response to repeated requests by the defendant to speak to her.During this second interview, Brennan asked no questions about the homicide.According to Brennan, the defendant initiated conversation about the homicide during the second interview.The next contact Brennan had with the defendant was on 25 October 1981, when the defendant asked Brennan to come over to the jail to speak to him about an assault he alleged was committed upon him by detention officers.The defendant indicated that he was considering pleading guilty to the murder charge.His confessions later followed.

Defendant contends that these various confessions and statements were induced by promise and coercion.The defendant alleges four grounds why the statements should not be admitted.The defendant first alleges that the authorities used a female officer to interrogate the defendant, knowing his predilection to discuss sexual matters with females, so that the defendant would gradually focus the discussions on his involvement in the murder.We do not agree.The testimony of Brennan at the pretrial hearing and the trial do not show police conduct tantamount to coercion or other psychological influence overbearing the defendant's free will, rendering the confessions involuntary.Cf.State v. Edwards, 111 Ariz. 357, 361, 529 P.2d 1174, 1178(1974)(defendant's will overborne).Brennan was not familiar with the defendant prior to the initial contact; she did not interrogate the defendant about the homicide; neither did she cajole, threaten or offer to bargain to obtain information.Also, on cross-examination, Deputy Brennan denied that Detective Pantke and prosecutorPaul Banales had discussed "sending in a pretty girl to go in and talk to"the defendant.We do not agree with the defendant that the mere presence of a female deputy rendered his confessions involuntary.

The second prong of the defendant's attack on the voluntariness of his confessions is that the state obtained them in exchange for a promise that he could serve his time in prison out of state.The defendant allegedly relied on...