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State v. McLoughlin2/29/1984
In the fall of 1980, appellant Edward Gerard McLoughlin was convicted of first-degree murder and first-degree burglary. He was sentenced to death for the former and ten years imprisonment for the latter. Appeal to this Court resulted in reversal of the convictions and sentences due to jury misconduct. In disposing of that appeal, we considered other claims of error raised by appellant likely to arise on retrial. On April 6, 1983, having waived his right to a jury trial in exchange for a promise from the state that if found guilty the death penalty would not be sought, appellant was once again found guilty of first-degree murder and first-degree burglary. He was sentenced to life imprisonment for the former and to five years imprisonment for the latter, to be served concurrently. On appeal from the second convictions, appellant presents four grounds for reversal. He claims the trial court, on remand, erred when it refused to consider his motion to dismiss, his motion to suppress, and his motion to preclude any in-court identification based on a pre-trial show-up. Finally, he urges us to declare Arizona's felony-murder statute, A.R.S. § 13-1105, unconstitutional. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. § 13-4031. The judgment is affirmed.
Appellant acknowledges that the first three issues arise out of holdings in State v. McLoughlin, supra, (" McLoughlin I "). He claims reconsideration of those holdings is required in light of McNutt v. Superior Court, 133 Ariz. 7, 648 P.2d 122 (1982), decided in the interim between McLoughlin I and appellant's second trial and in light of the facts and evidence presented at his first trial which, he claims, this Court failed to recognize as indicated by its reliance on Nelson, supra, in deciding McLoughlin I. We disagree and hold that McLoughlin I remains the law of the case.
MOTION TO DISMISS
In McLoughlin I, appellant moved to dismiss on the grounds that the destruction of the tape recordings of the police broadcasts relied on by the police officers in stopping and arresting appellant and Donald Nelson resulted in a denial of his right to due process because it precluded him from proving that the officers lacked probable cause to stop and arrest. The motion was denied. On appeal, we upheld the trial court based on our decision in Nelson, supra. Prior to appellant's second trial, the state moved to preclude oral argument and evidentiary hearings on the merits of all pre-trial motions determined in McLoughlin I including the motion to dismiss. The motion was granted, and right-fully so. We find nothing in McNutt nor any new facts that mandate a different result.
In McNutt, the defendant was arrested and held on suspicion of driving while intoxicated. His request to call his attorney and his request to have an independent blood test after a chemical breath test was taken were ignored. As noted by appellant, we dismissed the case with prejudice having found that "the state's action foreclosed a fair trial by preventing petitioner from collecting exculpatory evidence no longer available." McNutt, supra, at 10,
648 P.2d at 125. Though the instant case, like McNutt, involved the destruction of evidence, there are significant distinctions between the cases that justify different results. First, in McNutt and the cases cited therein, the challenged state action involved violation of a state statute, A.R.S. § 28-692(F) [now A.R.S. § 28-692(I
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