State v. Garrison

585 P.2d 563, 120 Ariz. 255, 1978 Ariz. LEXIS 276

• Court: Arizona Supreme Court
• Decided: September 20, 1978
• Docket: 3977
• Status: Published

Opinions

STRUCKMEYER, Vice Chief Justice.

Bobby Joe Garrison was convicted by jury of the crime of first degree murder and sentenced to life imprisonment. He appeals.

On the morning of October 24, 1976, the body of Verna Marie Martin was found on the desert near Tucson, Arizona. Her death was caused by strangulation and her body was mutilated by bite marks. On October 27, while the case was being investigated, Pima County Sheriff detectives interviewed appellant, who was seen with the deceased on the night of October 22. On December 22, 1976, after two months of investigation, an indictment was returned charging appellant with murder.

Appellant urges that the trial court erred in failing to suppress certain statements made at his interview with the detectives on October 27, for the reason that he had not at that time been advised of his Miranda rights. It is the State’s position that the statements made by appellant on October 27 were made in the course of a police investigation and were not made under custodial circumstances.

Statements made while a person is being interviewed as part of the investigation of a crime are admissible without Miranda warnings. State v. Bainch, 109 Ariz. 77, 505 P.2d 248 (1973); State v. Mumbaugh, 107 Ariz. 589, 491 P.2d 443 (1971). In State v. Bainch, we said:

“The fact that an officer may be suspicious of an individual is not the test as to whether Miranda warnings must be given prior to questioning, nor is the mere presence of a police officer to be considered a restraint on the suspect’s liberty. The vital point is whether, examining all the circumstances, the defendant was deprived of his freedom of action in any significant manner, and the defendant was aware of such restraint. In the latter instance the Miranda warnings are required to be given before the statements of the defendant may be received in evidence against him.” 109 Ariz. 77, 79, 505 P.2d 248, 250 (1973).

We do not think that the questioning of appellant on October 27, 1976 rose to the level of a custodial interrogation. Appellant came to the sheriff’s office voluntarily at the request of Detective Rick Lin-gel of the Pima County Sheriff’s Department. He traveled to the sheriff’s office in his own automobile. That the interrogation took place principally at the police station does not in itself require that Miranda warnings be given.

“Such a noncustodial situation is not converted to one in which Miranda applies simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a ‘coercive environment.’ Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him ‘in custody.’ It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited.” Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714, 719 (1977).

The trial court did not err if it concluded that the circumstances of the questioning took place in a “ ‘coercive environment’ ”, but that Miranda warnings were not required. The police had tried to contact appellant as early as October 25, 1976, a fact which appellant knew. They then waited two days before attempting to contact him again. This is indicative of the fact, and must have been so understood by appellant, that the police did not consider there was an urgent, pressing need to interview him. When appellant arrived at the station, he signed in as a visitor. At the start of the interrogation, he was told that the officers wanted to find out how long appellant had known the deceased and their activities on the evening that he had been seen with her. While appellant was interviewed over a period of some six hours, the record does not show that any pressure whatsoever was put on him during that time. We do not consider the length of time as critical for the reason that part of the time was consumed when appellant went out for breakfast, part while waiting to take a polygraph test which he agreed to take, and part used in a trip to and from appellant’s home.

We conclude, as we have before, that absent clear and manifest error, the trial court’s determination of the admissibility of an accused’s statements will not be upset by the appellate court. State v. Jordan, 114 Ariz. 452, 561 P.2d 1224 (1976); State v. Toney, 113 Ariz. 404, 555 P.2d 650 (1976).

Appellant complains of this portion of the prosecuting attorney’s closing argument:

“Like I said before, if you are going to come back with a verdict of not guilty, ladies and gentlemen, you better have a reason, or you better have a reasonable explanation for all this evidence that’s against the Defendant. You’re turning this man loose and he will walk out the door, ladies and gentlemen, and as I said before, the evidence suggests in this case a total lack of regard for human life, such a lack of regard, ladies and gentlemen, if you don’t expect such a crime could happen, or that a criminal necessarily, in committing such a crime as this, necessarily is going to stop at just this one death, you better think about that before you come in this courtroom and say not guilty. You think about that evidence I have presented to you, it’s an important matter, and Mr. Murray tries to say no, it’s not important anymore, her life is over, but it’s very important for the rest of the lives in this community. Very important.”

We do not think it was unreasonable for the prosecution to tell the jury as it did in the first sentence of the quoted argument that if it was going to come back with a verdict of not guilty, it had better have a reasonable explanation for all the evidence against the defendant. The appellant, however, directs the principal thrust of his claim of error to the remainder of the quoted argument, interpreting it to mean that the prosecution was saying there was a probability the appellant would take more lives if he were found not guilty and allowed to go free.

Appellant relies on State v. Makal, 104 Ariz. 476, 455 P.2d 450 (1969). There, the prosecution said of the defendant, “[SJociety can’t afford to have Mr. Makal take the life of any other innocent victims” and “Don’t arrive at a verdict which will give Mr. Makal the opportunity to kill again.” Id. at 478, 455 P.2d at 452. Those statements had to be considered in the light of Makal’s plea of not guilty by reason of insanity and testimony in the case that persons who were found not guilty by reason of insanity were back on the streets soon afterward. The argument in Makal asked the jury to disregard the law by ignoring his plea of insanity.

The most that can be said about the prosecution’s argument in the instant case is that the prosecution is telling the jury that the evidence shows a total lack of regard for human life and that a criminal who commits such a crime is not necessarily going to stop at one death. In the light of the total circumstances of how this homicide was committed, the argument that the criminal who committed it is not necessarily going to stop, while an emotional appeal, is one which is a permissible inference to be drawn from the nature of the evidence and did not unfairly prejudice appellant.

Appellant complains of the testimony of an expert witness, Homer Richardson Campbell, Jr., a dentist, that there is an eight in one million probability that the teeth marks found on the deceased’s breasts were not made by appellant. The witness, Campbell, is a board certified specialist in forensic dentistry and a member of the American Society of Orthodontology. His testimony is that the wounds in the deceased’s breasts had ten points of similarity with appellant’s teeth. He testified:

“My conclusion was that the bite marks on the deceased, and the bite marks produced by the model that I received, were consistent, the marks were consistent with those being made by the teeth that I received.”

He further testified:

“ * * * the probability factor of two sets of teeth being identical in a ease similar to this is, approximately, eight in one million, or one in two hundred and fifty—one in one hundred and twenty-five thousand people.”

Appellant points to People v. Collins, 68 Cal.2d 319, 66 Cal.Rptr. 497, 438 P.2d 33 (1968), which he asserts “is exactly on point with the situation in the present case.” We, however, do not think so. In People v. Collins, the complaining witness was robbed by a blond woman wearing a ponytail who was driven from the scene of the robbery by a male Negro wearing a mustache and beard. At the trial, the prosecution called an instructor of mathematics at a state college, who testified that assuming the robbery was committed by a Caucasian woman with a blond ponytail whose companion was a Negro with a beard and mustache, there was an “overwhelming probability that the crime was committed by any couple answering such distinctive characteristics.” The prosecution then, without presenting any statistical evidence whatsoever, argued that there was a probability of but one chance in twelve million that any couple would possess the distinctive characteristics of the defendants. On appeal, the court held that the “technique” employed by the prosecutor could only lead to wild conjectures without demonstrated relevance to the issues presented.

In the instant case, Dr. Campbell obtained the figure of eight in one million not from personal mathematical calculations, but from “articles written in the journals of the American Academy of Forensic Sciences” and two books, and “there are articles written throughout the literature that do mention the possibility or the numerical values of finding two [sets of teeth] of the same.”

Arizona’s Rules of Evidence, 17A A.R.S., effective September 1, 1977, provides by Rule 803(18) that statements contained in published treatises, periodicals, or pamphlets on the subject of medicine are not excluded by the hearsay rule. Although the Arizona Rules of Evidence were not in effect at the time of the trial of this case, we do not think the admission of the eight in a million statement is reversible error. Were we to reverse on this ground, it would only result in a retrial at which the same evidence would be admitted since Dr. Campbell’s testimony, obtained from published treatises and periodicals, would be admissible under Rule 803(18). Courts should not engage in such futile practices.

We have stated before the principle on which Dr. Campbell’s expert testimony was admitted for consideration by the jury:

“An expert is one whose opinions depend upon special knowledge with which he can assist the jury * * * He need not have the highest degree of skill or knowledge, but that lack of degree goes to the weight of his testimony before the trier of fact and not to admissibility. City of Phoenix v. Brown, 88 Ariz. 60, 352 P.2d 754 (I960); Udall, Arizona Law of Evidence, § 23.” State v. Macumber, 112 Ariz. 569, 570, 544 P.2d 1084, 1085 (1976).

Finally, appellant complains that the trial court erred in failing to instruct the jury that if it found that witnesses for the State had caused the destruction of evidence, it could infer that the destroyed evidence was against the interest of the State. The instruction requested by appellant was one similar to that approved in State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964), and arises out of the evidence presented by Dr. Campbell.

Dr. Campbell performed a number of experiments to determine whether appellant’s teeth matched the bite marks on the deceased’s breasts. He made a model of appellant’s teeth. The model was mounted on a dental articulator, a mechanical device which duplicates the movement of the human jaw. Then it was closed on wax, leaving an impression of appellant’s teeth bite. A clear acetate sheet was placed over the wax impression and the bite marks traced onto the acetate. The acetate sheet was then laid over photographs of the deceased’s breasts and the bite marks on the acetate sheet were compared with the bite marks found on the photographs. Dr. Campbell in the course of his experiments made about 50 wax impressions and about 30 acetate plates. Only three impressions and four acetate plates were produced at the trial. The remainder were destroyed. Dr. Campbell testified that he threw away probably 26 acetate plates and that they were thrown away “because essentially they have no value at all” and because “they didn’t reproduce the marks as seen in the photographs.” The reason some of the impressions and acetate sheets didn’t reproduce the marks as seen in the photographs was because the bite on the wax was not made from the same angle or the same force as those on the deceased’s breasts.

In State v. Willits, supra, if the evidence had not been destroyed, it might have tended to exonerate the defendant. But that is not true in the instant case. The wax impressions and acetate plates which were destroyed had no evidentiary value whatsoever. They were simply material from which no conclusions could be made, either as to innocence or guilt, because they did not duplicate the conditions under which the wounds on the deceased’s breasts were inflicted. They would not have tended to exculpate appellant had they been preserved. Cf. State v. Hannah, 120 Ariz. 1, 583 P.2d 888 (1978). The court below did not err in refusing to give the requested instruction.

Judgment affirmed.

HAYS and HOLOHAN, JJ., concur.