*1
lature,
judicial modi-
by
rather than
further
be-
responsibility
eventually
work and
the
“injured by accident
the terms
this
fication of
At
could tolerate.
more than she
came
of employ-
of
in the course
arising out
claim-
unanticipated occurred
point,
23—1021(B).
ment”.
We
mental breakdown.
a
ant suffered
circumstances,
the In-
these
think under
for a men-
Today’s approval of the award
found,
claimant
Commission
dustrial
brought
by
gradual
about
tal condition
arising
personal injury
out of
sustained
period
a
build-up
stress over
of
of emotional
employment
of
within
in the course
her
event,
time,
causing
injury
an
Compensation
meaning
the Workmen’s
paves
way for tomorrow’s abuses
Act.
compensation system.
my
In
workmen’s
opinion,
mischief in this
potential
Award affirmed.
great
area is too
to abandon
concrete
Shope v.
by
Industrial
GORDON,
standard established
(dissenting):
Justice
23,
Commission, Ariz.App.
night before”.
Compensation
Although the Workmen’s
(1952). Without En Banc. work of the logical extension nounces represented law case compensation men’s April 1978. Commission, 91 Paulley v. Industrial May Denied 1978. Rehearing Brock Commission, Ariz.App. Industrial I believe Legis- step be taken which should
Ferguson explained the trial court that years he had to serve a minimum of 25 Prison that he had law” that learned “convict’s against testify who persons another *3 for that in his death. stated marked prison, already he had time at the short prisoners who were heard about some protec- though they were stabbed even custody. Ferguson also described tive protec- for condition of cells used bleak custody tive and the extreme limitations liberty protective while in custo- upon one’s Babbitt, Gen., Atty. E. Former Bruce custody protective dy. Prisoners in Jr., LaSota, by William Atty. Gen. A. John part programs recre- take educational III, Hienton and Diane DeBrosse J. Schafer Ferguson he ation. testified that did McClennen, Gen., Attys. Phoe- Asst. Crane remain if he to believe could sane nix, appellee. for 25-year pro- serve his minimum sentence in Phoenix, custody. tective McVay, appel- Douglas J. for lant. state contradict- The offered evidence testimony concerning ing Ferguson’s condi-
HAYS, Justice. prison- danger or the prison tions at testify ers who for state. Ferguson, appellant, James Franklin The Davis, codefendant, Lyle Donnie and a its finding The trial court reaffirmed degree with first charged by information contempt Ferguson to six and sentenced Appellant sub- robbery. murder and armed Maricopa Jail. County months in the The guilt mitted the determination court ordered this sentence be trial upon stipulated the court innocence to previously to the sentences im- consecutive appellant record. The trial court contempt posed, begin sentence charges appellant was guilty both conduct, date of the contumacious years for the sentenced serve Ferguson be at the retained Mari- and 25 to life for first years armed County for the copa Jail immediate service murder, run sentences to consecu- degree contempt sentence. The warden of Supreme tively. appeal followed. This was not to Prison ordered credit pursuant to A.R.S. jurisdiction Court contempt against time served for Fer- and 13-1713. 13-1711 §§ Ferguson ap- other sentences. guson’s contempt judgment from the pealed sen- Ferguson A few after months contempt relating to the all the orders tenced, codefendant Davis the trial of his was consolidated appeal This sentence. as witness called began. Ferguson was appeal in armed with the testi- refused to prosecution, but he for murder judge trial ordered fy even after the testimony. for his given immunity he be THE CONTEMPT CONVICTION answering questions Ferguson claimed AND SENTENCE proc- deprive him of life due contempt and The conviction of Ferguson told trial court ess of law. The upheld. be We are Ari- sentence must warden it direct the that would problems of the Ferguson aware place Prison zona State being efforts are made Although trial was Prison. custody” if the “protective prison, we corrective measures at Ferguson’s life was in dan- take persuaded time it some before realize Appellant still refused answer ger. However, fully improved. contempt. conditions are questions and held present just do not prison’s Ferguson suddenly we believe that shot him without contempt. problems change the law any warning. testify at Da- Ferguson When refused to Lorenz was then taken from the cab trial, the trial court vis’s ground. laid Lor- on the turned to find him in to sentence contempt and enz go over and started to through county jail. to six months in the him pockets looking for money, but didn’t com- 12-861,12-863 13-341 and 17 §§ plete this search. then told Davis Procedure, Rules of rule 33. Criminal to get in the cab and act like passenger. in ordering the trial court erred Ferguson drove away, the cab leaving Ferguson to serve the sentence con- lying wounded Lorenz edge tempt prison state returning before to the little traveled road. Lorenz was discovered complete the sentences for murder and night later hospital and taken to a robbery. trial court armed When the or- *4 where he soon died afterwards. jail contempt, it Ferguson to for mod-
dered days Two or three July after robbery the murder sen- ified and armed Ferguson sold a .38-caliber revolver. Sher- completion delaying tences their for six deputies iff’s recovered the revolver. Tests By months. the time had been Ferguson the gun indicated that could have fired contempt, appeal convicted of a notice of bullet taken from Lorenz’s skull after already had been filed in the murder and Ferguson death. told the man to whom ap- armed a notice of Once gun had sold the that he a had “wasted filed, peal has been the trial dude.” modify a sentence trial court because the longer jurisdiction over matter. Cumbo, Eyman WAS APPELLANT’S ARREST (1965). Any time the contempt served on UNLAWFUL? must sentence be credited toward the mur- Appellant argues that his confession der and armed sentences. Pursu- should have been suppressed as the fruit 13-1717, powers to our under A.R.S. ant § an arrest unlawful because officers did jail imposed
the sentence of six months in have an arrest warrant when entered be served at the of the sen- conclusion a home in which he guest was a to arrest or sentences served in the being tence now him. Arizona Prison. The following pertinent facts are determination of appellant’s lawfulness of MURDER THE ARMED ROBBERY AND arrest: evening The record indicates that on arrest, days About two Ferguson’s before 2, 1976, Lyle Donnie July Ferguson and local officers received a call from California Dancing drinking Sun- Davis officers who said person that a had contact- in Phoe- Bar Road shine on East McDowell ed offering give them information about they obtain Ferguson suggested that nix. a homicide in the Phoenix cab, area. Phoenix having the money by calling a some officers flew to California and returned desert, shooting then drive out to the driver with “informer”, Davis, Donnie who Either money. taking driver and later charged was cab, as a codefendant a did call for Ferguson Davis Lorenz murder. Davis came was in- to Phoenix answered the call. Lorenz Lorenz questioning about 24 Fergu- area in hours before to drive to an isolated structed son’s arrest. Fergu- him to Davis told asked Maricopa County. Ferguson son had Fergu- simply up walked behind stop urinate. Lorenz because he needed to shot him cab, gun, any without got warning. out of son drew also at said that Ferguson still seated behind Lorenz who was would not allow stood himself shot Fergu- then be taken alive the wheel of the cab. son’s Lor- wife was so “moonstruck” Apparently once in the head. on him that Lorenz shot; she was he was would do anything help enz not threatened before him resist which in rele- two statutes closely with Davis had associated arrest. part provide: after vant Fergusons both before with lived had even apparently crime and 13-1403. Arrest officer § was like- believed them. Officers warrant to resist arrest. ly to use violence peace A may, without a war- officer interview, Davis A after the few hours rant, person: arrest a any plea picture public and a Ferguson’s 1. to be- probable When he has cause whereabouts regarding his information lieve that a committed felony has been news. P.M. TV the 6:00 broadcast on probable person to believe the cause thereafter, received the Mesa Shortly felony. to be arrested has committed knowledge who call from into Right 13-1411. of officer to break P.M. 7:00 approximately Ferguson. It was relayed building information by the time this Lor- investigating the sheriff’s officers officer, An to make an arrest order murder; were contacted the officers enz warrant, by virtue of a or when either went These officers their homes. a felo- authorized make such arrest for up then followed department and sheriff’s warrant, ny provided without a interviewing a Mr. tip by telephone 13-1403, open break a door in east Phoenix. Christie building per- window of in which the had a recent that he Christie told officers reasonably son to be arrested is or is *5 At the Ferguson. telephone number for be, if the officer is refused believed interview, officers conclusion of Christie after he has announced admittance company to deter- telephone contacted authority purpose. telephone number what address mine announcing We are well that in aware close to 9:00 By this time it was served. Arizona on public policy of the state of only were three sheriff’s P.M. there Since arrests, legislature of the state time, them at this two of
officers available
placed by
strictures
(a
override
to stake out the address
dispatched
were
residence)
support personnel from
Amendment of the United States
while
Fourth
requested;
Department
Cook,
Recently,
Phoenix Police
in
v.
State
Constitution.
support units arrived
by the time
(1977),
877
this court
address,
nearly 10:00 P.M.
question
of a warrantless en-
discussed
try into a home to effect an arrest.
to call the number
Christie was asked
statute,
majority
position
took the
that
given him to make sure
Ferguson had
13-1411,
complied
had not been
A.R.S. §
residence. There
was inside the
with,
Ferguson’s
were not
regarding
the circumstances
was still some doubt
told officers
because Christie
exigent.
whereabouts
bus
to the
Fergusons
had taken the
he
Supreme
yet
The United States
Court
money to leave
given them
station and
ruling
come forth with a definitive
not
had left
Davis also said
town.
point.
Pugh,
v.
420 U.S.
on this
Gerstein
in
Ferguson was
that
Confirmation
town.
(1975),
103, 95
themselves, they and stated Supreme United Court held that the States renter) (or ing Ferguson. The owner in a warrantless arrest of an individual Fer- home, Anthony, told officers Dave public place upon probable cause did there; officers entered guson was not violate the Fourth Amendment. Thereaft- hiding wife behind Ferguson and his er, Santana, v. 427 U.S. United States dark bedroom. baby crib in a 60 (1976), the it 49 300 is claimed that concern for a
96 S.Ct.
L.Ed.2d
relative
set
arrest
held that a warrantless
motivated the
Significant
Court
confession.
fac-
defeat-
public place may
in a
not be
an analysis
motion
tors in such
include whether a
by flight
private
ed
Neither
place.
agreed
questions
defendant
to answer
spe-
to our
provides
these cases
the answer
following
warnings, People
Miranda
cific issue.
Steger,
Cal.Rptr.
16 Cal.3d
(1976);
P.2d 665
the defendant
are exi
We hold
where there
police
rather
than
initiate the discussion
circumstances,
arrest in
gent
a warrantless
relative,
Jordan,
concerning the
if there
private
home
be made
is
(1976);
and wheth-
ex
probable
Exigent
cause.
circumstances
er the authorities
honest with the
ac-
previously
As
set forth
the-
ist here.
cused,
Winters,
Ariz.App. 508,
sought
facts:
to be
recital of
and dan
was believed to be armed
arrested
es
just
had
been
gerous, his whereabouts
Even if
first mention the
tablished,
previously
been on
relative,
possibility
jailing
such state
move,
apprehension appeared
and his
be ments do not make a confession inadmissi
dangerous.
difficult and
promises
ble where
are not threats or
confession,
only point
to induce a
but
out
complied
13-
The officers
with A.R.S. §
guilty person
the obvious fact
if the
proceeded
and then
to make
arrest.
will be
hold
unnecessary
found it
others.
legal,
the arrest
the confession
Since
State,
(Okl.Cr.1961);
Pate v.
P.2d
suppressed
ground.
not be
should
(5th
States,
Vogt v. United
The facts each 1641, provides: where voluntariness determining viewed in
61
necessary
the first two elements
support
same of-
punishments
Different
fense;
killing
unlawful
charge:
of the murder
limitation and bar
peculiar
being.
of a
Under the
facts
human
punish-
which
is made
An act
omission
case,
of our
the taxicab driver was
instant
sec-
ways by
able in different
different
behind, apparently
shot in
from
the head
under
punished
tions of
laws
knowledge
what was
with no
about
either,
more than
event under
but in no
only
place.
shooting
This
and sen-
take
or conviction
acquittal
one. An
subsequent
support
force available
prosecution
one bars a
tence under either
otherwise be characteriz-
under
acts which
or omission
for the same act
Tinghi-
robbery. Having applied
ed as
other.
test,
tella
we find that the evidence will not
with
of the two offenses
The elements
charge
robbery.
additionally support the
Murder, 1)
we are
are:
which
concerned
Accordingly,
conviction
2)
being; 3)
of a human
killing;
unlawful
Taylor,
v.
109
sentence are set aside. State
aforethought. A.R.S. 13-451.
§
with malice
267,
(1973).
Ariz.
P.2d 731
508
2)
1)
taking;
Robbery,
the felonious
Armed
3)
possession
personal property;
The
and the sen-
judgment
conviction
another; 4)
immediate
affirmed;
judg-
tence for murder
will; 6)
5)
means
presence;
against
and the sentence for
ment
conviction
force or fear. A.R.S.
13-641.
aside;
judgment
robbery are set
contempt,
the sentence for
conviction and
v.
Ariz.
491
Tinghitella, 108
In State
modified, are affirmed.
adopted
an iden-
834
P.2d
determining
elements test for
tical
applies
particular
J.,
CAMERON,
13-1641
C.
HOLOHAN and
Thereafter,
court,
in a number of
JJ.,
GORDON,
concurring.
decisions,
rule enunci-
applied
other
STRUCKMEYER,
Justice,
Vice Chief
Tinghitella.
Mays,
v.
See State
108
ated
specially concurring:
(1972);
Ariz.
Williams,
(1972);
I
disposition
108 Ariz.
Ramirez, (1975); opinion, Ariz. P.2d my the identical elements test Helmick, adopted properly there does not enunciate *7 test, the court must distinguishable Under when are two offenses so as supporting ele- permit imposition pun- eliminate evidence -the of cumulative charge of one and determine responsi- ments ishment. It relieves criminal of the ele- remaining supports evidence bility of his acts. I re- for some criminal We have remaining charge. ments of time dis- appropriate serve a more our instant to the facts of rule applied test cussion to what should that the elimination of apparent It is be. elements of supporting the the evidence does leave suffi- degree murder
first support the armed evidence to
cient the first five elements
charge. Although remaining supported “by of force
facts, element means the sixth This evidence is supported. is not
or fear”