State v. Smith , 107 Ariz. 100 ( 1971 )

JACOBSON, Judge,

Court of Appeals.

Defendant presently awaits execution on the sentence of death following his convictions of five counts of first degree murder and two counts of assault with intent to commit murder. He has appealed both the convictions and sentences.

That defendant committed the multiple murders and assaults with which he was charged, is not in dispute. On November 12, 1966, the defendant entered the Rose-Mar College of Beauty in Mesa, Arizona, whereupon he removed a gun from a paper bag he was carrying and fired a shot into the wall. At this point defendant ordered seven women in the college to enter a back room and lie down and then proceeded to shoot all seven women, killing five of them. The director of the college was unobserved by the defendant when he entered and after hearing a shot and seeing the defendant with a gun ran next door and called the police. Two police officers arrived at the scene approximately two minutes after receiving the call, entered the college unarmed and were immediately confronted by the defendant who spontaneously advised them “I have shot some people back there. The gun is in there,” (indicating the paper bag.) The defendant made no attempt to evade capture, was cooperative and no rational motive was shown for the killings — there was no evidence of robbery, extortion, sexual molestation or vandalism to the physical structure of the college. After being repeatedly advised of his rights he made a full written statement.

As indicated, there was no actual controversy raised by the defendant as to the commission of the physical acts necessary to charge him with the crimes alleged. The major portion of the trial was devoted to, and the only contested factual issue was, the sanity of the defendant at the time of the commission of the‘physical acts alleged.

The defendant raises several issues for review, the more substantive of which center around one general area, the sanity of the defendant both at the time of the commission of the crime and at the time of trial. Specifically, the defendant questions the admissibility of certain notes he authored and delivered to a fellow prisoner which were introduced by the state as rebuttal evidence bearing on the issue of defendant’s sanity.

Turning first to the specific issue of the admissibility of those notes, it appears that at the time defendant was incarcerated in the Maricopa County Jail, awaiting trial, one Vernon Mahan occupied an adjoining cell to that of the defendant. In 1961, Mahan had been convicted of the robbery of the Arizona State Treasurer’s office and sentenced to 20 to 30 years at the Arizona State Prison. See State v. Mahan, 92 Ariz. 271, 376 P.2d 132 (1962). While serving this sentence, Mahan was contacted by the then Chief Deputy County Attorney, Moise Berger, in order to induce Mahan to testify against his accomplice in the State Treasury robbery. In exchange for this testimony, Berger agreed to help Mahan obtain a parole.

Pursuant to this arrangement Mahan testified against his accomplice, but Berger’s efforts to comply with his portion of the bargain before the Parole Board proved fruitless. Mahan had been brought to the Maricopa County jail prior to testifying against this accomplice, and was retained there after his testimony rather than being returned to the Arizona State Prison where possible retribution for his informant activities might follow.

Mahan testified in the Treasury robbery trial on November 4, 1966, and remained in Maricopa County jail until May 9, 1967. On February 1, 1967, the defendant was moved to a cell next to Mahan. Deputies in charge of the jail were aware that Mahan was an informer. The County Attorney’s office through the cooperation of the Sheriff’s office had the power to transfer prisoners within the jail itself. The jail holds between 350-400 men in 16 different cell blocks.

During the time that defendant and Mahan occupied adjoining cells, Mahan succeeded in gaining the defendant’s confidence. As a result of this confidence, the defendant wrote fifteen to twenty notes to Mahan, four of which Mahan kept and turned over to the County Attorney’s office, the rest being destroyed by Mahan. Two of these notes were admitted into evidence by the State on rebuttal, the contents of which are as follqws:

EXHIBIT 88:

“Jack, I don’t blame you for asking that question Jack, we’ve got to depend on each other.

I’m going to tell the truth, I’m not just lying in order to get out of here. Right after that shooting in Mesa I left my gun on the counter to go into the other other (sic) section of the building.

As I was walking over there 2 cops came right in the door behind me. They were between me and my gun so they got me — & that’s the truth — I’ve told a lot of people that I just gave up because I didn’t want to fight — but that’s just what I want them to believe — because I’m trying for that hospital. You can •see how much I trust you, Jack — If the wrong people got hold of this note they would really hang me up.

O. K., Jack?”

EXHIBIT 89:

“The reason for my not writing out is that if a phycharist (sic) could get ahold of something that I’d written, he could tell them if I'm completely off my rocker or not. My attorney is making everyone on the outside think that I’m completely insane. Right now he’s getting letters out for me — so I’m not worried.”

These notes and their use in this trial by the prosecution were evidence, in the words of the trial judge, such that “ * * * if the court had excluded the notes, the verdict would have been affected * * * I find it would have had a direct effect on the verdict.”

The four notes were not presented to the County Attorney at one time. At the time the first of these notes was presented to Mr. Berger, Mahan was required to tear off a corner to enable him to identify it at the time of trial. He was likewise required to write on the back of a second note, delivered during a later visit by Mr. Berger, for the purpose of court identification.

At the time the notes were offered in evidence no objection was made relating to an agency relationship between Mahan and the County Attorney’s office. However, following the trial, a motion for a new trial was made and at the hearing on this motion evidence for the first time was presented that Mahan had made statements to other inmates of the Maricopa County Jail that he had made a deal with the County Attorney’s office concerning obtaining of the notes in question. Moreover, testimony was given at this hearing by another inmate of the Maricopa County Jail, to the effect that he had been approached by Berger in Mahan’s company to obtain information from the defendant in return for the dismissal of certain criminal charges pending against him.

Mr. Berger’s testimony concerning the acquisition of the notes in question was as follows:

“He [Mahan] said, to me he says, ‘What kind of information do you want me to get for you?’

“He said, T can talk to him and I can get information from him if you will tell me what you need.’

“I told him, I said, T can’t tell you to go get any information from this man, and I can’t tell you to talk to him to get information or anything else.’ I said, in fact, T can’t tell you anything, what we need or what we are interested in getting as far as evidence on the man because if in any way you were to act as an agent for us, in other words, if we told you “we need this, go get it,” and you did, in fact, you would be acting as an agent for us, you would really be in a sense, you would be a police officer, you would be our agent.’ ”

“Q. And the evidence would be inadmissible under Messiah? [sic]L

"A. And the evidence would be inadmissible, right * *

Also Mr. Berger made notes of his conversation with Mahan relating to the defendant’s oral statements, in Mahan’s presence. After obtaining the evidence from Mahan concerning the defendant, Mahan’s robbery conviction (which had been affirmed on appeal) was reduced to grand theft and he was resentenced to time served and released.

Defense counsel at the time of the hearing on the motion for a new trial for the first time argued the inadmissibility of these notes on the grounds that Mahan was a planted agent of the State and therefore, under the doctrine of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), evidence obtained by him was inadmissible.

Defense counsel had, prior to trial, filed a motion to suppress “any and all statements, oral or written, which the State contends were made by defendant on November 12, 1966, or thereafter.” A two-day hearing was held on this motion and although the notes in question were then in the possession of the County Attorney’s office the existence of the notes was not revealed to the defense, nor did the trial court have an opportunity to determine whether the defendant was entitled to inspect these notes.

On appeal defendant again argues the agency relationship of Mahan to the State and also raises the propriety of the State’s failure to disclose existence of these notes to the defense prior to trial. In view of our determination as to the former contention, we need not decide the latter.

The basic rationale of Massiah is that “[a]ny secret interrogation of the defendant, from and after the finding of the indictment, without the protection afforded by the presence of counsel, contravenes the basic dictates of fairness in the conduct of criminal causes and the fundamental rights of persons charged with crime.” 377 U.S. at 205, 84 S.Ct. at 1202, quoting People v. Waterman, 9 N.Y.2d 561, 216 N.Y.S.2d 70, 175 N.E.2d 445 (1961).

This succinct statement of constitutional principle has been adopted in Arizona by the case of State v. Gallagher, 97 Ariz. 1, 396 P.2d 241 (1964). Thus the question facing the court is whether the trial court correctly determined, on the evidence presented by the motion for new trial, that no agency relationship existed between Mahan and the County Attorney’s office which would bring into play the Massiah doctrine.

Under the facts in this case, we are forced to conclude that an agency relationship existed between Mahan and the County Attorney’s office sufficient to render Mahan an investigative arm of that office.

The facts leading to this conclusion may be summarized as follows: Mahan was a known informer used by the County Attorney on a previous occasion, with the express understanding that in exchange for testimony, parole for Mahan would be obtained; out of 350-400 inmates in the Maricopa County Jail, the defendant was placed next to this known informer; the County Attorney’s office had the power to control the placement of inmates; following the performance by Mahan of all the services required of him in connection with his prior activities, he was allowed to remain in the Maricopa County Jail for six months; the notes delivered to the County Attorney’s office were specifically marked in such a manner as would require Mahan’s testimony at the defendant’s trial; and notes were made by Berger of defendant’s oral conversations with Mahan, again indicating the necessity of Mahan’s appearance at trial.

At this point it should be emphasized that law enforcement officials have the right, and indeed the obligation in the prosecution of crimes to use all information that comes into their hands pointing to the guilt of an accused. This is true even though the persons supplying that information may harbor expressed or unexpressed motives of expectation of lenient treatment in exchange for such information. It is only when the state actively enters into the picture to obtain the desired information in contravention of constitutionally protected rights that the sanction of inadmissibility becomes pertinent. It is not that the information is any less material or valuable to the finding of truth, it is the concept that the state’s overriding of an individual’s constitutionally-based rights will not be tolerated. In this arena of contesting interests, i. e., where probative evidence and individual rights become mutually exclusive, our courts have decreed that individual rights must prevail.

With this in mind we now turn to the damning fact that when all efforts on behalf of Mahan by the County Attorney’s office before the Parole Board proved fruitless and that office had completely complied with all of its obligations to Mahan under its- previous arrangements with him, Mahan’s conviction was set aside, without opposition from the County Attorney’s office, and Mahan was allowed to plead to a lesser charge and was completely released upon reSientence to time served, again without opposition from the County Attorney’s office. In other words Mahan received his quid pro quo.

While we have no doubt that Mr. Berger’s sworn testimony that he made no oral commitments to Mahan is technically correct, this court does not live in the never-' never land of Peter Pan.

Given the following facts: In 1966, A supplies information to B pursuant to an agreement that in exchange for such information B will perform services for A; the information is supplied and the services are rendered; in 1967, A again supplies information to B and B again performs services for A, and in order to perform these services B bypasses the mandate of a court and the duly constituted Parole Board of this state. Are we to close our eyes to -the logical conclusion that the 1967 services were also performed pursuant to an agreement, either spoken or unspoken? We do not. As the dissent in this matter correctly points out, weighing of the evidence and credibility of witnesses is properly for the trial court. However, the findings of the trial court must be supported by substantial • evidence, leading to logical, reasonable conclusions.

In our opinion, the conclusion is inescapable in this case that Mahan expected some benefit to accrue from his assisting the state and in view of the past dealings of Mahan with the County Attorney based ' upon a favor done for a favor received, that the state intended to reciprocate for such assistance. We thus find Mahan’s statement that he delivered the notes to Mr. Berger only because “it was the right thing to do” somewhat hollow. In reaching our conclusion herein, we are not unmindful that the evidence of the agency relationship between Mahan and the County Attorney’s office was first presented to the trial court after six weeks of jury trial, a verdict of guilty and a recommended sentence of death. As the trial court itself stated: “It is unfortunate that all of this could not have been presented to the trial court so it could have been resolved in the proper atmosphere.”

There is no doubt that neither the County Attorney’s office nor law enforcement officers could have, after appointment of counsel, taken the notes in question directly from an involuntary defendant in such a manner as to make them admissible. State v. Herman, 3 Ariz.App. 323, 414 P.2d 172 (1966), overruled in other particulars in State ex rel. Berger v. Superior Court, 105 Ariz. 553, 468 P.2d 580 (1970). What the State may not do directly, it cannot do indirectly. As was stated in State v. Goff, 99 Ariz. 79, 407 P.2d 55 (1965):

“It is an advantage obtained through trickery or affirmative conduct which tends to evade fundamental rights, thereby denying due process of law which is forbidden, [citing Messiah]. It is the unfair advantage obtained thereby which courts will not tolerate.” 99 Ariz. at 83, 407 P.2d at 57.

We therefore hold the notes obtained by Mahan from the defendant under the circumstances of this case were inadmissible. Their admission being prejudicial error, this matter is reversed and remanded for a new trial.

We specifically do not pass upon defendant’s contention that the evidence does not support the jury’s verdict concerning the issue of insanity, this evidence being a proper matter for consideration upon retrial.

STRUCKMEYER, C. J., concurs.

Note: Justice LORNA E. LOCKWOOD having requested that she be relieved from consideration of this matter, Judge EINO M. JACOBSON, Court of Appeals, was called to sit in her stead and participate in the determination of this decision.