State v. Winegar

• Citation: 147 Ariz. 440,711 P.2d 579
• Decision Date: 04 December 1985
• Docket Number: No. 6131,6131
• Parties: STATE of Arizona, Appellee, v. Sandra Kay WINEGAR, Appellant.
• Court: Supreme Court of Arizona

Page 579

711 P.2d 579

147 Ariz. 440

STATE of Arizona, Appellee, v. Sandra Kay WINEGAR, Appellant.

No. 6131.

Supreme Court of Arizona, In Banc.

Dec. 4, 1985.

Robert K. Corbin, Atty. Gen., William J. Schafer III, Chief Counsel, Crim. Div., Gary A. Fadell, Asst. Atty. Gen., Phoenix, for appellee.

George F. Klink, Phoenix, for appellant.

GORDON, Vice Chief Justice.

A jury convicted defendant, Sandra Kay Winegar, of first degree murder, A.R.S. § 13-1105; and armed robbery, A.R.S. § 13-1904. The trial court subsequently sentenced her to concurrent terms of life imprisonment for the murder and 10.5 years for the robbery.

On September 2, 1982, the body of a black male was found in the desert north of Phoenix. Sheriff's detectives later determined that the body was that of Dorzee "Bubba" Hill. Hill was a known heroin dealer who worked the "Buckeye Strip", an area of Buckeye Road in Phoenix bordered by 7th and 15th Avenues.

An autopsy determined that Hill died from a blow to the head made by a blunt instrument. Laboratory analysis of physical evidence found on Hill's body revealed the presence of cat hairs and hairs from a Caucasian person. Sheriff's detectives surmised that Hill was not killed in the desert but was murdered elsewhere and transported to the desert by car and dragged by more than one person to its place of discovery behind some bushes.

Further investigation led sheriff's detectives to believe that defendant and her boyfriend, Thomas Boyd Tittle, ¹ were involved in the murder. Sheriff's detectives Al Weiss and Ralph Dominguez located defendant and Tittle in Hagerman, Idaho, defendant's home town. Dominguez and Weiss traveled to Hagerman where, on September 22, 1982, they contacted defendant and Tittle. After approximately four hours of questioning, defendant implicated herself and Tittle in the murder of Dorzee Hill.

Defendant's confession was admitted at trial over her objections. The state also called Jack Henry pursuant to a grant of immunity. Henry testified that he and Tittle had discussed a plan in which they would beat Dorzee Hill and rob him of his drugs and money. Defendant was present when Henry and Tittle planned the killing. No explanation was given for the failure to carry out this plan.

In her defense, defendant recanted her confession, and she said she was tricked into helping Tittle murder Hill. She also testified that she told Tittle not to beat Hill, that she did not know Tittle would use an axe on Hill, and that she had no intent to aid Tittle.

Defendant raises numerous issues, but because of our disposition of the case we need only decide one. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. §§ 13-4031 and -4032.

I

Defendant contends that her confession resulted from an illegal arrest, and, therefore, should have been suppressed at trial. The state argues that defendant voluntarily agreed to accompany law enforcement authorities and answer their questions, hence no arrest occurred. Thus, the state contends, defendant's confession was admissible as the product of a consensual encounter with the sheriffs.

The existence of an arrest depends upon the circumstances surrounding defendant's contact with the sheriffs, see authorities cited infra, and therefore we must examine the facts in some detail.

After finding Hill's body, Detectives Weiss and Dominguez went to the Buckeye Strip, interviewed several witnesses and learned the following. Defendant and her boyfriend, Thomas Boyd Tittle, ² with whom she shared an apartment, were daily heroin users who frequented the Buckeye Strip and regularly bought heroin from Dorzee Hill. Tittle disliked Hill because Hill sold bad heroin that made defendant sick and also made frequent sexual advances toward defendant. Tittle had talked to Jack Henry about getting revenge on Hill by beating him over the head with a tire bat and then taking his drugs and money. Tittle said he wanted Henry's help in carrying out the plan. The day before Hill's body was found, defendant and Tittle had a heated argument with Hill outside a social club. Defendant and Tittle were both known to carry .25 caliber automatic pistols, and they also owned a black and white cat. Cat hairs were found on Hill's body. In addition, hair from a Caucasian person was found on Hill, and both defendant and Tittle are Caucasian. After Hill's body was found, defendant and Tittle found out that the police were asking questions on the Buckeye Strip and were looking for two white people who bought heroin from Dorzee Hill. Shortly thereafter, defendant and Tittle left town together.

Based upon this information, Detectives Weiss and Dominguez decided they wanted to talk to defendant and Tittle. A nationwide communication to law enforcement authorities resulted in locating defendant and Tittle in Hagerman, Idaho, where defendant was visiting her parents. After arriving in Idaho, Detectives Weiss and Dominguez obtained a search warrant for defendant's car and her parents' house. Believing they had no probable cause to arrest defendant or Tittle, however, the detectives merely desired to speak with them and characterized the two as "investigative leads".

On September 22, 1982, defendant and Tittle were observed walking down the main street of Hagerman. Accompanied by four armed and uniformed Gooding County Sheriffs, Detectives Weiss and Dominguez, in plain clothes, approached and encircled defendant and Tittle. Weiss informed defendant and Tittle of his identity and ordered the two to keep their hands away from their bodies and not to move. A pat-down search of Tittle was performed and a .25 caliber automatic pistol was retrieved. During the search, defendant was told to step away from Tittle and Detective Dominguez stood next to her. No search of defendant was performed at that time.

The detectives stated that they wanted to talk with defendant and Tittle away from the street. The two then accompanied the deputies to the Hagerman City Hall across the street. While on the street defendant was never told whether she was under arrest or not under arrest.

Once at the City Hall, Detective Dominguez informed defendant that he wanted to talk to her about a Phoenix murder. He also told her that she was not under arrest. Nevertheless, Kathy Mynard, the wife of one of the Gooding County Sheriffs, arrived on the scene and conducted a pat-down search of defendant, finding no weapons. Kathy Mynard was often hired by the Gooding County Sheriff to act as a matron when the Gooding County Sheriffs had women prisoners. According to Kathy Mynard, she went to the back room of the City Hall and told defendant that she, Mynard, was there to search defendant. Defendant said "OK." The search completed, Dominguez and other law enforcement officers decided the Hagerman City Hall was too small and crowded to conduct a proper interview of defendant and Tittle. Dominguez asked defendant if she would accompany him and the officers to Gooding, Idaho, a town twenty miles from Hagerman where facilities existed for interrogation. Defendant asked if the deputies wished her to drive her own car to Gooding. Weiss said she could not because a search of the car pursuant to a search warrant was to be conducted. Defendant was then asked if she had an alternative form of transportation, and she said no. The deputies then asked defendant if she would accompany them to Gooding in their vehicle. Defendant consented and, in fact, was somewhat relieved to be going to Gooding so as to avoid embarrassment in her home town. Detective Weiss told defendant and Tittle that they would be driven back to Hagerman after the interviews were completed.

Defendant accompanied Detectives Dominguez and Weiss and Kathy Mynard to Gooding in a Gooding County Sheriff's car. Tittle was taken to Gooding in a different car. There, defendant was brought to the Gooding County Sheriff's Office, where Detective Dominguez began interviewing defendant in a conference room. Detective Weiss interviewed Tittle in a separate room. At the outset, Dominguez informed defendant that she was not under arrest but nonetheless read defendant her Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Defendant stated that she understood these rights, and she signed the "rights card" Dominguez read to her.

When the substance of the interview began, defendant denied any knowledge of the murder. Accordingly, Dominguez testified that, at that point, defendant was free to go. Nevertheless, Dominguez did not let defendant go. Rather, he told defendant that she could "probably" drive her car home "if she was telling me the truth." In addition, Kathy Mynard stood in constant guard at the door of the interview room, and she accompanied defendant to the restroom the several times defendant went there.

After defendant's initial denial, Detective Dominguez informed defendant of the information gathered on the Buckeye Strip. Defendant then changed her story, stating that Tittle had admitted to her that he killed Hill. At this time, Dominguez told defendant that there was only a possibility she could be released once the information in her second statement was verified. Shortly after this statement, defendant was allowed to meet briefly with Tittle, and defendant informed Tittle that she had told "everything". After the two were again separated, Tittle implicated both himself and defendant. Armed with Tittle's statement, detective Weiss confronted defendant and accused her in a raised voice of being a liar. Defendant then changed her statement and implicated herself and Tittle in the murder. By the time she made this statement, defendant had been in the Gooding County Sheriff's Office for approximately four hours.

Defendant maintains that an arrest occurred when the sheriffs approached and stopped Tittle and her on the street in Hagerman. She contends that this arrest continued in Hagerman and in Gooding. Further, d...