as: 186 Ariz. 168, 920 P.2d 29
of Arizona, Appellee,
Charles TOWERY, Appellant.
Court of Arizona, In Banc.
October 3, 1991, Robert Charles Towery ("Defendant") and Randy Allen
Barker were charged in Maricopa County on six counts: first-degree
murder, armed robbery, first-degree burglary, kidnapping, theft, and attempted
theft. About six months before trial, the trial judge granted Defendant's
motion to sever. Defendant's murder trial began on August 3, 1992.
Eleven days later, the jury found him guilty of felony murder and all other
counts. At the sentencing hearing, the trial judge sentenced Defendant
to death for the murder and to concurrent prison terms of five to twenty-one
years for the other counts.
automatic appeal of the death sentence followed. Ariz. Const. art. 6, §
5(3); A.R.S. §§ 13-4031 and 13-4033(A).
exchange for a reduced charge of second-degree murder, Barker testified
against Defendant and provided much of the State's evidence. Other
witnesses corroborated some critical features of Barker's story and connected
Defendant with the charged offenses. Nevertheless, the State's case
rested on Barker's testimony. His version of the facts follows.
Barker, and John Meacham rented a three-bedroom house in Scottsdale, Arizona.
Defendant occupied one bedroom with his girlfriend, Diane Weber, and her
infant daughter. Barker occupied another bedroom with his then-
girlfriend, Monique Rousseau. For several weeks, Defendant and Barker
had discussed "pulling off a robbery" of one of two possible victims
known to Defendant. On September 4, 1991, they decided to rob Mark Jones
at his home.
evening they drove in Barker's car to a Denny's Restaurant where they called a
taxi. The taxi dropped them off near Jones' home. They walked to
the house and knocked on the door. When Jones answered, Defendant said
his car had broken down and asked if he and Barker could come in to use the
telephone. Defendant asked Jones, "Do you remember me? I'm from R
and D Automotive." Jones had been introduced to Defendant on a prior
occasion when Defendant sought counseling about his new business enterprise.
Jones invited them in and showed them the telephone. While Barker faked
a telephone call, Defendant opened his briefcase and pulled out a gun.
The briefcase also contained gloves, plastic tie wraps, handcuffs, and a large
veterinary syringe apparently filled with battery acid. After Defendant
and Barker put on gloves, Barker handcuffed Jones. Defendant rummaged
through the house, took Jones' car keys, and loaded Jones' Lincoln with a
television, photocopy machine, cameras, jewelry, and other items.
Defendant removed Jones' wallet from his back pocket and took about $200 and
credit cards. They also took $1,000 from a desk drawer.
leaving, Defendant and Barker took Jones to the master bedroom at gunpoint,
uncuffing him while he used the bathroom along the way. They asked him
whether he was expecting anyone soon, and Jones said no. According to
Barker, Defendant offered Jones "about two choices in the matter of how
we could leave him. One was ... [to] tie him up, ... the other was to
introduce a drug into him to make him sleep instead of being tied up."
Jones chose to be put to sleep and was laid face down on the bed with his
hands bound behind his back. Contrary to his statement to Jones,
Defendant apparently believed the injected substance would kill Jones.
his request, Jones' shoes were removed to make him more comfortable.
Defendant made several attempts to inject the contents of the syringe into
Jones' arm, pushing the needle all the way through a vein. The drug
having no effect, Jones pretended to sleep by **297 *175 snoring.
Determined to kill Jones, Defendant made a noose out of plastic tie wraps from
his briefcase, slipped it over Jones' head, and pulled tightly on its end to
strangle Jones. Jones did not struggle but made choking and gagging sounds.
Defendant then cut and removed the tie-wrap noose from Jones' neck.
Believing Jones was not yet dead, Defendant made another noose "like the
first one ... popped [it] over the head, and pulled tight with a 'zip'
sound," explained Barker.
two men then loaded a large television into Jones' other car, a Dodge
convertible. While trying to start the Dodge, Barker set off its alarm.
Barker jumped into the Lincoln and the two men drove away with Defendant at
the wheel. Barker allegedly threw the empty syringe out the window into
an oleander hedge [FN1] as they drove back to Denny's to get Barker's car.
They returned to their home, unloaded the goods, putting some into Meacham's
bedroom, and removed a compact disk player from the Lincoln's dash.
Defendant then drove the Lincoln to the parking lot of an apartment complex
while Barker followed in his car. They parked the Lincoln there and
returned home. A security guard at the complex saw the men and later
identified Defendant in a photo lineup.
Police later searched the area for the syringe but never found it.
next morning, Meacham returned from work to discover in his bedroom items he
had not seen before. Defendant, Barker, and Diane were also in the
house. Meanwhile, two employees of the golf club that Jones frequented had
looked for Jones and found his body about mid-morning that day.
testified and offered an alibi. According to Defendant, on the night of
the robbery he had driven Barker to Denny's in Barker's car. He had a
soda until Barker's taxi arrived, then drove to Zorba's, an adult book store,
where he had arranged to meet Tina Collins. While waiting, Defendant
went inside to buy a book and returned to his car. Tina arrived at
Zorba's about fifteen minutes after Defendant. They then drove and
parked near Defendant's home, talking for about two hours in the car.
Defendant returned to Zorba's, dropped Tina off, and went to meet Barker at a
Circle K near their house. Because Barker was not there as planned, Defendant
went home. Barker soon arrived home with a stolen car and stolen
property. Defendant claimed he helped Barker unload the goods and
dispose of the stolen car. To account for the stolen property police
found in his possession, Defendant claimed he had bought the items from
Collins testified by videotape and gave the following story, corroborating
Defendant's version. She first met Defendant about two weeks before the
murder at a party, where they discussed performing a sex act on Defendant's
girlfriend and arranged to meet again on September 4. They talked over the
telephone on September 4 and planned to meet at nine o'clock that night to
negotiate a deal. Tina did not arrive until 9:10 or 9:15 and joined
Defendant in a black TransAm he was driving. They drove to the parking
lot of an office building, talked for an hour, went to a convenience store for
sodas, and returned to the parking lot to talk some more. After meeting
for a couple of hours, Defendant drove Tina back to Zorba's. When asked
whether she saw any unusual equipment in the car, Tina said she saw a gun and
a police scanner, which she first thought was a walkie-talkie. Nothing
in the record disputes Tina's professed observations. [FN2]
Tina said she did not talk with Defendant again until February 9, when she
visited him in prison. According to Tina, she learned from her friend
Judy that Defendant was in prison. Judy had been visiting Defendant's
cellmate, a man named Paul. While Judy visited Paul, she telephoned Tina and
told her that Paul had a friend who wanted to meet her. Tina had
previously visited and befriended inmates she did not know. When Defendant got
on the telephone, he and Tina recognized each other. Thereafter, Tina visited
Defendant in prison regularly.
prosecutor suggested in closing argument that Tina had never met Defendant
until she visited him in prison after the murder and that she therefore
fabricated her alibi testimony to help Defendant. Reporter's Transcript,
Aug. 13, 1992, at 61.
*176 The jury apparently believed Tina and Defendant less than Barker and
found Defendant guilty of first-degree murder. At the sentencing
hearing, the trial judge found three statutory aggravating factors and two
mitigating factors. In aggravation, the State proved that Defendant (1)
had been convicted of a crime for which a life sentence was imposable, [FN3]
(2) committed the murder for financial gain, [FN4] and (3) committed the
murder in an especially cruel, heinous, or depraved manner. [FN5] The
judge found that the mitigating factors, Defendant's drug-impaired capacity to
conform his conduct to the law and his codefendant's lenient plea-bargained
sentence, were not sufficiently substantial to call for leniency.
Accordingly, the judge sentenced Defendant to death.
A.R.S. § 13-703(F)(1) and (2). Defendant
had been convicted of committing four counts of armed robbery while on parole.
A life sentence for the conviction was therefore mandatory.
A.R.S. § 13-703(F)(5).
A.R.S. § 13-703(F)(6).
takes issue with a number of the trial judge's procedural rulings, arguing
that they constituted reversible error. He
also challenges the trial judge's findings at the sentencing hearing and the
constitutionality of Arizona's death penalty scheme. We consider each of Defendant's arguments.
Limiting cross-examination of an accomplice witness
contends that by twice limiting his cross-examination of Barker, the
trial judge violated his right under the Sixth and Fourteenth Amendments to
confront a key witness. In one
instance the judge prohibited the defense from asking Barker what his attorney
had said to him about his chances of receiving the death penalty without a
plea bargain. In the second
instance, the judge barred the defense from probing Barker about his belief in
the occult. Defendant charges that both of these rulings infringed his right
to effectively cross-examine an important witness and were fundamental
The confrontation right and the attorney-client privilege
show Barker had a motive to testify for the State and inculpate Defendant,
even if he had to lie, Defendant cross-examined Barker about benefits he
expected in return for his plea agreement. Defendant asked Barker whether his attorney had told him that the State
might seek the death penalty if Barker did not cooperate with the prosecutor.
Barker's lawyer was present and objected on grounds of
attorney-client privilege, and the judge sustained the objection.
A defendant has great latitude to cross-examine an "accomplice or
co- defendant who has turned State's evidence and testifies on behalf of
the State in a trial of his co-defendant." State v. Morales, 120 Ariz. 517, 520, 587 P.2d 236, 239 (1978)
(citations omitted). A trial
judge who excludes testimony that would show bias and interest in this
circumstance may commit reversible error. Id. Even if the defendant fails to object or give an offer of proof
when such testimony is precluded, error may be found if the context of the
questions makes their purpose clear. Ariz.
R. Evid. 103(a).
If cross-examination into privileged areas is necessary to show a
witness' bias, the United States Supreme Court has held that the interest of
confidentiality can be "outweighed by [the defendant's] right to probe
into the influence of possible bias in the testimony of a crucial
identification witness." See Davis v. Alaska, 415 U.S. 308, 319, 94 S.Ct. 1105, 1111,
39 L.Ed.2d 347 (1974). In the few
reported cases in which the confrontation right has collided with the
attorney-client privilege, courts have employed a fact- specific
balancing test to resolve the competing interests of confidentiality and the
defendant's right to impeach an important government witness. See, e.g., State v. Cascone, 195 Conn. 183, 487 A.2d 186, 190-91
(1985) (trial court's exclusion of a co-defendant's pretrial statement
to his attorney *177 **299 that would exculpate the defendant was not harmless
United States ex. rel. Blackwell v. Franzen, the court balanced the relevant
question in each case must finally be whether defendant's inability to make
the inquiry created a substantial danger of prejudice by depriving him of the
ability to test the truth of the witness's direct testimony. To answer that question the court must look to the record as a whole
and to the alternative means open to the defendant to impeach the witness.
The court must ultimately decide whether the probative value of the
alleged privileged communication was such that the defendant's right to
effective cross- examination was substantially diminished.
F.2d 496, 500-01 (7th Cir.1982) (citations omitted), cert. denied, 460 U.S. 1072, 103 S.Ct. 1529, 75 L.Ed.2d 950 (1983).
Franzen, the defendant cross-examined his accomplice, who had agreed to
testify for the state. The
defendant elicited testimony from the witness that he had told his own
attorney "he was beaten [by the prosecutor] into making that statement
[that inculpated defendant]" to show that the prosecutor had induced the
accomplice to incriminate the defendant. Id. at 499. The state
objected, and the trial court sustained the objection on grounds that the
attorney-client privilege "overrides any relevancy it may have to
the issues in [the] case." Id.
However, because there was already ample evidence in the record to impeach the
accomplice's testimony, the circuit court upheld the trial court's ruling.
Id. at 501; see
also Neku v. United States, 620 A.2d 259, 263 (D.C.1993), cert. denied, 510
U.S. 1003, 114 S.Ct. 577, 126 L.Ed.2d 476 (1993).
long as the jury heard evidence relevant to Barker's possible motives for
testifying against Defendant, we assume it could then fairly assess Barker's
truthfulness. No doubt Barker's
plea agreement was relevant to his bias and interest. The jury apparently realized this and sent a note to the judge during
deliberations asking what benefits Barker received in exchange for his
testimony. Reporter's Transcript
(R.T.), Aug. 13, 1992, at 110. The
jury's note asked, "Does Randy Barker have anything to gain if Towery is
convicted? Are we allowed to see the plea agreement?" In response to the note, the judge told the jurors they had all the
evidence and instructed them to rely on their personal recollections and
At issue then is whether the jury knew what benefits Barker would receive from
his plea bargain. If the
statement made to Barker by his lawyer was sufficiently probative of Barker's
credibility to outweigh the interests protected by the attorney-client
privilege, [FN6] then the judge abused her discretion in prohibiting Defendant
from asking about a privileged communication.
The attorney-client privilege, the "oldest of the privileges for
confidential communications known to the common law," has been
rigorously guarded "to encourage full and frank communication between
attorneys and their clients and thereby promote broader public interests in
the observance of law and administration of justice." Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 682, 66
L.Ed.2d 584 (1981).
The record shows that even without disclosure of whether Barker's lawyer told
Barker that the State would seek the death penalty if he did not cooperate,
other evidence informed the jury that Barker knew he could escape death by
cooperating and testifying. The
jury knew that the State would have pursued the death penalty if Barker were
convicted of first-degree murder. Earlier in the day, the jury heard a
stipulation that prior to Barker's plea agreement the State had filed a notice
of intent to seek the death penalty if Barker were convicted of
first-degree murder. The jury knew that Barker then made a plea agreement with the
State for second-degree murder. In
short, although the jury questioned Barker's benefits if Defendant were
convicted, as evidenced by the note to the judge, the jury must have
understood all of the benefits Barker received from his plea agreement and
testimony when it decided Defendant's guilt. The evidence would have been merely cumulative had the judge permitted
Defendant to ask about Barker's privileged communication with his attorney.
Moreover, in protecting **300 *178 the attorney-client privilege,
the judge did not impair Defendant's ability to obtain the information he
wanted. Defense counsel could
have established a motive for Barker to lie without invading the
attorney-client privilege. He simply could have asked if Barker knew or believed he
would have been eligible for the death penalty or a life sentence had he not
agreed to testify. In upholding
the privilege, therefore, the judge did not abuse her discretion.
Cross-examination of Barker's belief in satanism
cross-examination, the defense asked Barker about his belief in the
occult after he revealed that he had dialed straight sixes while feigning a
telephone call from the victim's house. [FN7] The judge sustained the State's objection on grounds of relevance,
basing her ruling on Ariz. R. Evid. 610 and art. 2, § 12 of the Arizona
Constitution. [FN8] These
provisions bar questioning a witness about religious beliefs as a way to
enhance or attack the witness' credibility. On appeal, Defendant contends that testimony about Barker's religious
beliefs, if such they were, was not offered to impeach his credibility but to
show that the antisocial tenets of his beliefs disposed Barker to engage in
criminal conduct and to commit the murder.
During cross-examination, Barker was asked what number he dialed when he
pretended to use the telephone in Jones' house. Barker responded, "I dialed straight sixes."
The testimony continued:
Q: Why did you dial those numbers?
Because of--I used to have an old belief in the occult.
When did you do away this that belief?
Ditsworth [for the State]: Relevance, Your Honor.
Hazel [for Defendant]: Pardon me,
Your Honor, I didn't--
Hazel: Your Honor, can we
approach on that point?
Hazel: But, in fact, you had an
alter [sic] in your--a Satanic alter in your room; is that correct?
Ditsworth: Same objection.
Aug. 5, 1992, at 112-13.
excusing the jury, the judge asked defense counsel why the ruling should be
reversed. Counsel explained that
he had seen what looked like a satanic altar in a photograph of Barker's
bedroom and wanted to ask Barker to confirm its identity. He continued, "I think it's important that the jury know that he
has some different type of beliefs that other people may not." The trial judge asked for case law showing that satanism was an
exception to the rule prohibiting a party from introducing evidence of a witness' religious beliefs. Id. at 140-41.
agreed to find authority but never offered any.
Ariz. R. Evid. 610 provides:
of the beliefs or opinions of a witness on matters of religion is not
admissible for the purpose of showing that by reason of their nature his
credibility is impaired or enhanced.
2, § 12 of the Arizona Constitution states:
... person [shall] be incompetent as a witness or juror in consequence of his
opinion on matters of religion, nor be questioned touching his religious
belief in any court of justice to affect the weight of his testimony.
A witness' religious beliefs are admissible if offered for some legitimate
purpose other than attacking witness credibility. See State v. West, 168 Ariz. 292, 296, 812 P.2d 1110, 1114 (1991)
(reference to religion is proper when used to justify defendant's conduct);
State v. Stone, 151 Ariz. 455, 458, 728 P.2d 674, 677 (App.1986) (if
evidence of religious belief "is probative of something other than
veracity, it is not inadmissible simply because it may also involve a
religious subject as well."). Defendant argues that the evidence was relevant to an issue
other than Barker's veracity. Had
he been allowed to develop testimony about Barker's satanic beliefs, the jury
might have been persuaded to believe that Barker, not Defendant, was the
killer. In addition, although the
jury nevertheless could have found Defendant's involvement sufficient to
convict him for felony murder, his death eligibility was not a foregone
conclusion. Although the judge
found beyond a reasonable doubt that Defendant was the killer, evidence that
Barker was profoundly touched by some satanic belief might have altered that
Defendant, however, made no offer of proof of what Barker's testimony would
have shown. Nor does the context
of the question indicate the nature of Barker's satanic belief or show it was
substantively **301 *179 relevant. When
an objection to the introduction of evidence has been sustained, an offer of
proof showing the evidence's relevance and admissibility is ordinarily
required to assert error on appeal. State
v. Bay, 150 Ariz. 112, 115, 722 P.2d 280, 283 (1986); MORRIS K. UDALL ET AL., ARIZONA PRACTICE:
LAW OF EVIDENCE § 13, at 20 (2d ed.1982). Given that counsel normally does not know in advance what a hostile
witness will say on cross-examination, the offer-of-proof
requirement for considering a claim on appeal may be relaxed when the court
sustains an objection to a question asked on cross-examination. JOHN W. STRONG, ET AL., 1 MCCORMICK ON EVIDENCE § 51, at 197 (4th
ed.1992). Even so, something more
than speculation about possible answers is required to show prejudice. At a minimum, an offer of proof stating with reasonable specificity
what the evidence would have shown is required. See id. at 197-98. In Arizona, it has been suggested that counsel be required to discover
evidence that would make the proffered testimony relevant and make it known to
the court. State v. Quinn, 121 Ariz. 582, 585, 592 P.2d 778, 781
We recognize, however, that discovery in criminal cases is much more limited
than in civil cases. Victims of
crimes, for example, can refuse interview requests by defense counsel under
the Victims' Bill of Rights. Ariz. Const. art. 2, § 2.1; Ariz. R.Crim. P. 39(b)(11).
when the context of the examination fails to reveal the nature of the expected
answer, the proponent of the precluded evidence must seek permission from the
trial judge to make the offer of proof so that the reviewing court can
determine whether the trial judge erred in precluding the evidence. STRONG, ET AL., supra § 51, at 197 n. 10;
see also State v. Affeld, 307 Or. 125, 764 P.2d 220, 222 (1988). It is remotely conceivable that Barker might have revealed he was
driven by a satanic force or some other evil belief to commit criminal acts.
The only hint of a satanic motive for Barker's participation in the
crime, however, was his dialing sixes on the telephone. That alone has little probative value in establishing a motive to kill.
Assuming Barker had a satanic altar in his room, Defendant
failed to discover how often Barker used it and how its use was related to his
criminal conduct. In fact,
Barker's claim that he used to believe in the occult indicates that the
alleged altar no longer had any religious significance to him. Defendant's failure to establish the connection between Barker's old
belief in the occult and the crime by an offer of proof in the record makes it
impossible to evaluate whether the trial judge unfairly limited Defendant's
cross-examination of Barker. On
this record, we see no probative value in the precluded evidence apart from
its effect on Barker's credibility. Thus
we find no error in the judge's precluding it.
Defendant's right to a free transcript of a previous, unrelated trial
trial, Defendant asked the court by written motion to provide a free
transcript of a prior trial in which he had been convicted of armed robbery.
That trial took place in mid-March 1992, about six months after
Jones' murder and about five months before Defendant's homicide trial. He stated that he needed the transcript because the prosecutor had
filed notice that the State intended to call witnesses from the armed robbery
trial. [FN9] The judge denied his request on grounds that "no good cause
has been shown for the need of the trial transcripts," advising him to
renew his motion "setting forth some facts which demonstrate an actual
need other than the bare conclusion that he needs the transcript 'to prepare a
defense'." Minute Entry,
June 13, 1992, at 19. Defendant
made no further request for the transcript. On appeal, Defendant claims that
in denying him valuable defense information, the judge violated his equal
protection and due process rights.
Defendant used plastic tie wraps, like the ones used during Jones' murder,
during the armed robbery. He had also used a police scanner in the armed robbery.
Barker told police that Defendant took a police scanner to Jones'
house. The State wanted to call
the armed robbery victim to prove the identity of Jones' killer and filed a
motion to admit prior bad acts. The State later withdrew its motion.
The United States Supreme Court has held that requiring an indigent **302 *180
defendant to demonstrate a particularized need for a free transcript of a
prior mistrial or preliminary hearing can violate equal protection. Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 433-
34, 30 L.Ed.2d 400 (1971); Roberts
v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967); Griffin v. Illinois, 351 U.S. 12, 17, 76 S.Ct. 585, 590, 100 L.Ed. 891
(1956) ("In criminal trials, a State can no more discriminate on account
of poverty then on account of religion, race, or color."). Only financial need, not particularized need, must be shown. Britt held
that two factors are relevant in determining if a trial court has erred by
refusing an indigent defendant a free trial transcript: (1) the value of the transcript to the defendant for an effective
defense at trial or on appeal, and (2) "the availability of alternative
devices that would fulfil the same functions as the transcript." Britt, 404 U.S. at 227, 92 S.Ct. at 434. [FN10]
The transcript from a prior mistrial has been recognized as a valuable
resource for impeaching witnesses, guiding discovery, and developing trial
strategy. Id. at 232, 92 S.Ct. at 436 (Douglas, J., dissenting). Thus,
when a transcript from a mistrial is requested for use at the retrial, the
value of the transcript is generally presumed without a showing of specific
need. United States v.
Rosales-Lopez, 617 F.2d 1349, 1355-56 (9th Cir.1980), aff'd, 451
U.S. 182, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981). A preliminary hearing transcript may also be presumed to have value in
connection with a pending trial. See
In Britt the Court upheld the trial court's decision not to provide a
transcript to the defendant. The
same judge presided, and the same counsel appeared. Because the same court reporter, who knew the attorneys and the judge,
was present and could have readily provided defense counsel with
transcriptions from the prior mistrial if informally asked, the Court found
that the defendant had adequate alternative devices available. See State v. Tomlinson, 121 Ariz. 313, 589 P.2d 1345
(App.1978) (reviewing state and federal cases on whether the defendant
had an adequate alternative device for a trial transcript).
this case, however, Defendant asked for a free transcript of his trial on an
unrelated charge. Our cases have
held that there is no presumed value to the defense in the transcript of a
co-defendant's trial. See
State v. Tison, 129 Ariz. 526, 540, 633 P.2d 335, 349 (1981) (indigent
defendant must show special need in requesting a transcript of
co-defendant's trial), cert. denied, 459 U.S. 882, 103 S.Ct. 180, 74
L.Ed.2d 147 (1982); State v.
Razinha, 123 Ariz. 355, 358, 599 P.2d 808, 811 (App.1979) (citing cases).
But see State v. Campbell, 215 N.W.2d 227 (Iowa 1974). Although the present question is one of first impression for this
court, we partially answered it in Tison. Tison claimed the trial judge erred in denying him a free transcript of
his co-defendant's trial on the same charges. In holding that there is no presumed value of a co-defendant's
trial transcript even when the same witnesses are called, we emphasized that
the constitution does not require the State to provide every service that
"might be of benefit to an indigent defendant ... but only to assure the
indigent defendant an adequate opportunity to present his claims
fairly...." Tison, 129 Ariz. at 540, 633 P.2d at 349, quoting Ross v.
Moffitt, 417 U.S. 600, 616, 94 S.Ct. 2437, 2447, 41 L.Ed.2d 341 (1974).
Because a mistrial effectively serves as a "dry run" of the State's
case, a transcript is ordinarily considered invaluable as a discovery device
and tool for impeaching prosecution witnesses at the subsequent trial. Britt,
404 U.S. at 228, 92 S.Ct. at 434. But
when the transcript sought is that for an unrelated charge--even
against the same defendant--the crime, victim(s), time, place,
facts, and witnesses are ordinarily different. Thus, the rationale for the presumption of need does not apply to a
transcript of the defendant's trial on unrelated charges. Its value must be established, and unless the defendant demonstrates a
specific need for the trial transcript, the court does not err in concluding
that the transcript is not necessary for an effective defense. The mere fact that a witness who testified at the first, unrelated
trial may be called at the second is not sufficient for a presumption of
value. See Fisher v. Hargett, 997
F.2d 1095, 1098 (5th Cir.1993) (free transcript of a prior trial involving a
different victim and offense at a different time not constitutionally
required); McAllister v.
Garrison, 569 F.2d 813, 815 (4th Cir.1978) (holding that defendant must **303
*181 make a reasonable showing of transcript's value even though common
witnesses called), cert. denied, 436 U.S. 928, 98 S.Ct. 2824, 56 L.Ed.2d 771
(1978). When asking for a free transcript of an unrelated trial, therefore, a
defendant may be required to demonstrate some reasonable probability of
said he needed the robbery trial transcript because the State intended to call
common witnesses from the armed robbery trial. Despite the judge's request, Defendant made no further showing of
particularized need for the transcript. Without
a sufficient showing of the transcript's value for an effective defense, the
judge did not err in denying Defendant a free copy. We reach this conclusion, as we must, the same way the judge did, on
the record as it then existed.
the robbery victim did not testify at the homicide trial, three other
witnesses testified at both trials. At
the murder trial, one of these witnesses, Defendant's roommate John Meacham,
testified that he overheard Defendant make an inculpatory statement. The same prosecutor had elicited similar testimony from Meacham at the
robbery trial. Defendant argues
that the statements attributed to him by Meacham refer to the same incident
but were introduced at two separate trials to prove two separate crimes.
Because Defendant had different lawyers at each trial, his trial lawyer
in the present case may not have known about Meacham's previous testimony
without reading the transcript.
Defendant is correct that the transcript of Meacham's robbery trial testimony
might have alerted defense counsel that the State was making inconsistent use
of Meacham's testimony. Thus the
transcript might have helped impeach Meacham at the murder trial. [FN11]
His testimony at both trials was offered to prove Defendant's
culpability in unrelated crimes. But neither Defendant nor the trial judge could have
reasonably anticipated that the prosecutor would make inconsistent use of the
same testimony. Because the
prosecutor did not inform the court of his intent to elicit the same testimony
from an unrelated trial, the court had no way of knowing that the requested
transcript might help the defense. If
the transcript would have been valuable to Defendant, any prejudice caused by
the denial of a free copy was attributable not to the trial judge, who ruled
correctly on the record before her, but to the prosecutor. Thus, we find no equal protection violation.
We note that the transcript would have been of no value to Defendant insofar
as it pertained to the testimony of two of the common witnesses. These
witnesses were police officers who had been involved in the robbery and murder
investigations. They testified at
this trial only about items seized in the murder investigation. The robbery trial transcripts of these two witnesses would have been
useless to the defense for discovery or impeachment purposes.
Defendant's inculpatory statement--judicial estoppel and
Defendant's prior armed robbery trial Meacham testified that he overheard
Defendant say, "I tried to get this old man to do what I wanted him to
do, but he wouldn't do it." State
v. Towery, Maricopa County No. CR 91- 02512, R.T., Mar. 10, 1992, at 98.
At the homicide trial, Meacham was again called to testify. His testimony approximated the testimony he gave in the armed robbery
trial: he said that he heard
Defendant tell Barker that he was "having a hard time with an old man so
he had--he had a hard time tying him up, so he had to knock him
down." The victims of both crimes were older men.
Defendant had different counsel at the two trials and was denied a transcript
of the robbery trial, we must assume that his trial attorney in the present
case did not know the substance of Meacham's testimony at the robbery trial.
Moreover, before putting Meacham on the stand in the murder trial, the
prosecutor failed to notify the court or defense counsel that he would present
evidence of the same admission Meacham described in the robbery trial. The context of Meacham's testimony at both trials makes it quite clear,
and the State concedes, that Meacham heard one admission about one crime.
But the admission was used in two trials to help prove two unrelated
criminal acts. Defendant claims that by presenting evidence of a single
incident at two separate **304 *182 trials to prove two separate, unrelated
crimes, the prosecutor violated Defendant's due process rights and the
doctrine of estoppel by engaging in misconduct.
Defendant argues that "the prosecutor [used] the same evidence to convict
the appellant of two separate crimes ... attempting to prove a fact in one
trial and seeking to prove an inconsistent fact in another trial with the same
evidence." Opening Brief at
32. The error in using the
evidence, in Defendant's words, is that it " 'perverts' the integrity of
our system of jurisprudence." Id.
at 35. Protecting the integrity
of the judicial process is the universally recognized purpose of judicial
estoppel. See, e.g., 18 C.
WRIGHT, A. MILLER & E. COOPER, FEDERAL PRACTICE AND PROCEDURE § 4477
(1981 and Supp.1990); 1B J.
MOORE, J. LUCAS & T. CURRIER, MOORE'S FEDERAL PRACTICE 405, at 239, 240
(2d ed.1988); Scarano v. Central
R.R., 203 F.2d 510, 513 (3d Cir.1953).
Judicial estoppel prevents a party from taking an inconsistent position in
successive or separate actions. This
court has long recognized that
a general rule, a party who has assumed a particular position in a judicial
proceeding is estopped to assume an inconsistent position in a subsequent
proceeding involving the same parties and questions.
v. Wood, 71 Ariz. 457, 459, 229 P.2d 710, 711-12 (1951) (citing 31 C.J.S.
ESTOPPEL § 119, at 381). Judicial
estoppel is not intended to protect individual litigants but is invoked to
protect the integrity of the judicial process by preventing a litigant from
using the courts to gain an unfair advantage. See 31 C.J.S. ESTOPPEL § 121, at 260;
see also Yanez v. United States, 989 F.2d 323, 326 (9th Cir.1993); Yniguez v. Arizona, 939 F.2d 727, 739 (9th Cir.1991);
Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir.1990), cert. denied, 501
U.S. 1260, 111 S.Ct. 2915, 115 L.Ed.2d 1078 (1991); In re Cassidy, 892 F.2d at 641.
judicial estoppel is usually invoked in civil cases, [FN12] courts have also
applied it in criminal cases. See,
e.g., State v. Washington, 142 Wis.2d 630, 419 N.W.2d 275, 277 (App.1987).
See, e.g., State v. Ellison, 26 Ariz.App. 547, 549, 550 P.2d 101, 103 (1976).
The doctrine's application to criminal cases usually involves a defendant who
asserts one position at trial and another on appeal. See Harrison v. Labor & Indus. Review Comm'n, 187 Wis.2d 491, 523
N.W.2d 138, 140 (App.1994). Nonetheless,
criminal courts have indicated that judicial estoppel would preclude the state
from changing its version of the facts in separate proceedings involving the
same matter to protect the defendant's right to due process. See People v. Gayfield, 261 Ill.App.3d 379, 199 Ill.Dec. 123,
128-29, 633 N.E.2d 919, 924-25 (1994) (suggesting that the state
would be estopped from inconsistently claiming in separate proceedings that
different defendants shot the same victim); Russell v. Rolfs, 893 F.2d at 1037-39 (state prohibited from
arguing that criminal defendant's appellate petition is procedurally barred in
state court after successfully arguing in district court that defendant had an
adequate state remedy).
believe the doctrine of judicial estoppel is no less applicable in a criminal
than in a civil trial. Any other
rule would permit absurd results. For example, if the state had evidence that
a defendant admitted robbing the convenience store, absent judicial estoppel
the state could use that evidence to convict the defendant of every
convenience store robbery in the city, affirming the evidence as relevant in
each case, all the while knowing that the defendant made only one admission of
a single act.
Three requirements must exist before the court can apply judicial estoppel:
(1) the parties must be the same, (2) the question involved must be the
same, and (3) the party asserting the inconsistent position must have been
successful in the prior judicial proceeding. See Standage Ventures, Inc. v. State, 114 Ariz. 480, 562 P.2d 360
(1977). In the present case the
parties are the same. Because Defendant's admission could only pertain to one of
the crimes, the question involved in both proceedings is also the same: did Defendant admit committing **305 *183 the charged crime in
Meacham's presence? However, even
though the parties and the questions are the same, a majority of courts,
including Arizona, refuse to invoke judicial estoppel unless the position
first asserted was successfully maintained. [FN13] Taylor v. State Farm Mutual
Auto. Ins. Co., 182 Ariz. 39, 44, 893 P.2d 39, 44 (App.1995),vacated in part,
185 Ariz. 174, 913 P.2d 1092 (1996).
The minority view allows judicial estoppel "even if the litigant was
unsuccessful in asserting the inconsistent position, if by his change of
position he is playing 'fast and loose' with the court." Keenan v. Allan, 889 F.Supp. 1320, 1360 (E.D.Wash.1995), quoting Morris
v. California, 966 F.2d 448, 452-53 (9th Cir.1991), cert. denied, 506
U.S. 831, 113 S.Ct. 96, 121 L.Ed.2d 57 (1992).
The prior position was successfully maintained only if the party gained
judicial relief as a result of asserting the particular position in the first
proceeding. See id. at 44, 893
P.2d at 44; Standage, 114 Ariz.
at 484, 562 P.2d at 364; State
Farm Auto. Ins. Co. v. Civil Service Employees Ins. Co., 19 Ariz.App. 594,
600, 509 P.2d 725, 731 (1973). Prior
success has also been defined as requiring that the court in the prior action
accepted the first position. Edwards
v. Aetna Life Ins. Co., 690 F.2d 595, 598 (6th Cir.1982); see also Chaveriat v. Williams Pipe Line Co., 11 F.3d 1420, 1427 (1993)
(litigant must obtain victory on prior ground); Rand G. Boyers, Precluding Inconsistent Statements:
The Doctrine of Judicial Estoppel, 80 NW. U.L. REV. 1244, 1256 (1986)
(the requirement of prior judicial acceptance "is satisfied whenever a
prior court 'has adopted the position [contrary to that now] urged by that
party, either as a preliminary matter or as part of a final disposition.'
") (citations omitted) (alterations by author).
Prior success is a prerequisite to the application of judicial estoppel
because absent judicial acceptance of the prior position, there is no risk of
inconsistent results. See
Edwards, 690 F.2d at 599; see
also Boyers, supra, 80 NW. U.L. REV. at 1253. Because the judicial process is unimpaired absent inconsistent results,
and because judicial estoppel is recognized to protect the integrity of the
judicial process, invocation of the doctrine is unwarranted without prior
success on--or judicial acceptance of-- the first
position. See USLIFE Corp. v.
U.S. Life Ins. Co., 560 F.Supp. 1302, 1305 (N.D.Tex.1983) (citing Edwards, 690
F.2d at 599); C. WRIGHT, A.
MILLER & E. COOPER, FEDERAL PRACTICE & PROCEDURE § 4477 (1983).
The guilty verdict on the armed robbery charge establishes that the jury
accepted the State's position that Defendant committed that crime. The robbery verdict does not, however, establish that
Defendant's admission to committing the armed robbery was a key element of the
guilty verdict. Indeed, it is
entirely possible that the jury in that case gave little or no consideration
to Meacham's testimony, especially if his testimony constituted only an
insignificant fraction of the total evidence offered to establish Defendant's
guilt. See Boyers, supra, NW. U.L.
REV. at 1257. For this reason,
judicial estoppel is generally not applied when the first inconsistent
position was not a significant factor in the initial proceeding. Id. at 1263.
the court, keeping in mind the 'unnecessary hardship' that may result from
invoking judicial estoppel when the position was unimportant in the initial
proceeding, determines whether the importance of the issue in the particular
case justifies invocation of the doctrine.
to determine if the prior success requirement for invocation of judicial
estoppel was met in the armed robbery trial, this court must examine the
record of that trial to determine whether Meacham's testimony was arguably
significant to the jury's determination of Defendant's guilt. Id. In other words, can we conclude that the judicial relief obtained
by the State in the armed robbery conviction was arguably due to Meacham's
testimony? See Standage, 114
Ariz. at 484, 562 P.2d at 364. [FN14]
Although Defendant supplemented his brief with the portion of the transcript
of the armed robbery trial containing Meacham's examination, he did not
provide this court with the entire transcript. We later ordered that the record of Defendant's prior armed robbery
trial be produced in its entirety and included as part of this record.
*184 Having reviewed the entire record of the armed robbery trial, it is clear
that Meacham's testimony was an insignificant factor in obtaining a conviction
in that trial. All four robbery
victims separately identified Defendant from a photographic line-up. They also testified at trial.
Defendant was arrested for the armed robbery, he had four credit cards of one
of the victims in his wallet. In
his home police found a gun identified by one of the victims as the gun used
in the robbery, as well as clothing similar to that worn by the perpetrator of
the robbery. Defendant also had a police scanner on his person when
arrested; the robbery victims
noted that the robber had an identical police scanner with him at the time of
the crime. The license plate of
the car Defendant drove to the robbery matched that of Barker's car, and
Meacham testified that Defendant had access to Barker's car. Meacham's testimony about Defendant's admission came in as an
unresponsive answer to a single question and was never mentioned again in the
examination of Meacham or any other witness. The prosecutor never referred to Defendant's alleged admission in his
opening statement or closing argument.
We conclude that Meacham's testimony about Defendant's inculpatory statement
was at most an insignificant factor in light of the overwhelming evidence of
Defendant's guilt on the armed robbery charge. Because judicial estoppel is to
be invoked cautiously, on these facts we are unprepared to say that the prior
position was successfully maintained. We
therefore decline to invoke judicial estoppel here to preclude Meacham's
testimony at the murder trial. Thus,
we examine whether the prosecutor's actions constituted misconduct justifying
At oral argument before this court, the State conceded that the prosecutor
elicited testimony of an admission about a single incident to help establish
Defendant's guilt of two unrelated crimes. The prosecutor justified his actions by telling this court that he had
been mistaken about presenting Defendant's admission at the robbery trial.
As the murder investigation developed, the prosecutor became less
convinced that Defendant's admission related to the armed robbery and more
convinced that Defendant had been describing events of the murder. The State supported its use of Defendant's admission at the murder
trial because it was made after the murder, better fit the facts of the
murder, [FN15] and was therefore relevant evidence in the murder trial. The State submits it was for the jury to decide what weight to give
Meacham's testimony. Further, the
State argues that Defendant was free to ask Meacham questions that would have
explained the alleged admission, thereby attributing the admission to the
robbery rather than to the murder.
The prosecutor explained at oral argument that the oldest victim of the
previous crime was 55 years old. Jones was 68 years old when he was murdered.
Defendant's reference to an "old man" convinced the
prosecutor that Defendant had been discussing Jones rather than the robbery victim
when Meacham overheard him.
accepting the prosecutor's assertion that he decided in good faith that the
inculpatory statement referred to the murder charge, we believe it improper
for the State to fail to first notify defense counsel and the court of its
intent to use evidence in this manner. While
the robbery conviction awaited review by the court of appeals, the prosecutor
made no effort to inform that court or defense counsel that he believed the
admission did not relate to the robbery but to the murder, and had been
improperly admitted in the first trial and properly used in the second. Nor did the prosecutor raise the matter after affirmance of the robbery
conviction by the court of appeals. State
v. Towery, No. 1 CA-CR 92-0831, Mem. Dec. (Ct.App. filed Sept. 29,
1994). When Defendant petitioned
us to review that case, the State did not inform this court that Defendant's
robbery conviction may have been based in part on improperly admitted
evidence. This court denied
review on March 21, 1995. If Defendant's inculpatory statement referred to the murder
case, as the State now argues, the prosecutor should have informed the court
and Defendant that he had presented irrelevant evidence at the robbery trial.
At the very least, the prosecutor **307 *185 had a duty to give notice
in one case or the other that the admission of a single incident had been used
to help convict Defendant of unrelated charges. His failure to give notice in either case constitutes misconduct.
Having concluded that the prosecutor's actions constituted misconduct, we
consider whether Defendant suffered prejudice mandating a new trial. See Ariz. R.Crim. P. 24.1.
are not eager to reverse a conviction on grounds of prosecutorial misconduct
as a method to deter such future conduct. See State v. Valdez, 160 Ariz. 9, 14, 770 P.2d 313, 318 (1989).
Rather, absent structural error, we usually will not reverse if the
error was harmless. Id. Error is
harmless if we can conclude beyond a reasonable doubt that it did not
contribute to or affect the verdict. State v. Bible, 175 Ariz. 549, 588, 600,
858 P.2d 1152, 1191, 1203 (1993), cert. denied, 511 U.S. 1046, 114 S.Ct. 1578,
128 L.Ed.2d 221 (1994). In the
murder trial, even had defense counsel been aware of the prior use of
Meacham's testimony, the State would probably have been permitted, over
defense objection, to elicit the same testimony from Meacham by disavowing the
relevance of the testimony in the armed robbery trial and placing the
reviewing court on notice so it could be considered in Defendant's appeal of
that conviction. See Ariz. R.
Evid. 401, 403.
defense counsel in the present case been aware of the prior inconsistent use
of Meacham's testimony, however, he could have impeached Meacham with his
prior testimony to raise doubts about whether the admission related to the
murder. But after the prosecutor
brought out Meacham's testimony in the murder trial, Defendant elicited the
following from Meacham on cross-examination:
Do you know for sure that [he was] talking about Mr. Jones [the victim]?
I thought [he was] talking about when [he] got busted before.
So, in fact, you didn't think [he was] talking about Mr. Jones?
No, sir, I didn't.
Aug. 11, 1992, at 40. On
re-direct, the prosecutor tried to rehabilitate the witness by showing
that for all Meacham knew, Defendant might have been discussing events of the
murder, but he got no more than the following:
Okay. The conversation that you overheard, was it before or after all of this
property came into the house?
I believe it was after.
And you don't really know what the conversation that you heard pertains to, do
Aug. 11, 1992, at 41.
both the defense attorney and the prosecutor elicited testimony indicating
Meacham either believed Defendant admitted some crime other than the charged
murder or was not sure what Defendant was admitting. Any impeachment defense counsel would have obtained from having known
of the testimony in the prior trial was effectively achieved. Accordingly, we conclude beyond a reasonable doubt that the
prosecutor's misconduct did not affect the verdict. See Bible, 175 Ariz. at
588-90, 858 P.2d at 1191-93.
Because the prosecutor's misconduct did not violate any of Defendant's
constitutional rights resulting in reversible error, and because judicial
estoppel would not preclude Meacham's testimony in the murder trial, Defendant
has no remedy with respect to his murder conviction on this ground. Rather, when error that is harmless results from
prosecutorial misconduct, the proper remedy is to report the offender to the
state bar for possible sanctions, which we have done. Valdez, 160 Ariz. at 14, 770 P.2d at 318.
Defendant also objects to the State's use of his statement at the sentencing
hearing to prove the murder was committed in an especially cruel, heinous, or
depraved manner under A.R.S. § 13-703(F)(6). If Defendant's admission referred to an unrelated crime, it cannot be
used to prove an aggravating factor for this crime. See Bible, 175 Ariz. at 604, 858 P.2d 1152 at 1207 (the special
circumstances of cruelty, heinousness, or depravity apply to the defendant's
actions during the offense). Although
the trial judge **308 *186 found beyond a reasonable doubt that the murder was
especially cruel, heinous, and depraved, the special verdict indicates that
the judge did not rely on the disputed statement to prove this aggravator.
Under these circumstances, we find no error.
Admission of late evidence
State failed to timely disclose two pieces of evidence admitted by the trial
judge: blood stains on a glove
belonging to Defendant and fingerprints on a compact disk player case removed
from Jones' car. Under Ariz.
R.Crim. P. 15.1, the prosecutor should have disclosed this evidence, the names
of the experts who examined it, and the reports or statements relating to it
within ten days after Defendant's October 11, 1991 arraignment. The prosecutor did not disclose the fingerprint evidence until July 28,
1992 and the blood evidence until July 30, 1992, less than a week before trial
began. Defendant moved to
preclude this evidence on July 31. We
note this was the only sanction Defendant requested; he did not ask for a continuance.
Defendant contends the late disclosure and admission of this evidence
deprived him of due process, requiring the verdict and sentence to be set
Rule 15.7 of the Arizona Rules of Criminal Procedure authorizes the trial
court to sanction a party who does not timely disclose material relevant to
the case. If a sanction is
warranted, it should have a minimal effect on the evidence and merits of the
case. State v. Smith, 140 Ariz.
355, 358-59, 681 P.2d 1374, 1377-78 (1984). Precluding evidence is rarely an appropriate sanction.
State v. Fisher, 141 Ariz. 227, 246, 686 P.2d 750, 769, cert. denied,
469 U.S. 1066, 105 S.Ct. 548, 83 L.Ed.2d 436 (1984); but see State v. Killean, 185 Ariz. 270, 915 P.2d 1225 (1996)
(approving trial court's preclusion of corroborative documentation evidence
when defense counsel failed to record existence of such evidence, willfully
violating discovery rules). Denial
of a sanction is generally not an abuse of discretion if the trial court
believes the defendant will not be prejudiced. Id. Absent a showing of abuse by the trial court, we will not disturb
the trial court's choice of sanction or its decision not to impose a sanction.
State v. Tucker, 157 Ariz. 433, 439, 759 P.2d 579, 585 (1988).
Before sanctioning the offering party, the court should consider (1) the
importance of the evidence to the prosecutor's case, (2) surprise or prejudice
to the defendant, (3) prosecutorial bad faith, and (4) other relevant
circumstances. Smith, 140 Ariz.
at 358-59, 681 P.2d at 1377- 78. [FN16] Before admitting the evidence, the trial judge heard arguments from
both sides and found no prejudice to Defendant from the late disclosure.
After examining the four Smith factors, we agree with the trial judge's
These factors were enumerated in a case in which the defendant discovered an
exculpatory witness during trial and moved to permit him to testify. Later cases have drawn on Smith when undisclosed witnesses have been
called to testify. This case is
somewhat different because the State's experts and the nature of their
involvement were known to Defendant's counsel well before trial. Nonetheless, we find the Smith factors helpful to our analysis here.
First, the State conceded that the evidence was of little importance to its
case. Neither the blood on the
glove, which had not been analyzed for blood group type, nor the fingerprint
found on the compact disk case removed from the Lincoln, provided a physical
link to the murder. Next, because
Defendant had been given timely notice of the identity of the State's latent
print and blood experts, he should not have been surprised when they were
called to testify about their findings. However,
because neither the prosecutor nor the defense learned about the experts'
findings until shortly before trial, Defendant could have been prejudiced had
he been deprived of an opportunity to have his own experts study the evidence.
When the trial judge asked Defendant how the late disclosure prejudiced
him, he replied only that he was surprised by the experts' late reports.
Thus, there is no indication of actual prejudice from the late
disclosure. Further, Defendant
offered no evidence of prosecutorial bad faith, and the trial judge found
none. The prosecutor may be held
accountable for the negligence of the State's blood expert, who waited until
the last minute before *187 **309 transmitting his nine-month-old
report. See State v. Castaneda, 111 Ariz. 264, 266, 528 P.2d 608, 610
(1974) (prosecutor admonished for failing to use sufficient effort to keep
apprised of the evidence). But
because the defense's investigation of the evidence was not impaired by the
State's delay, we find no prejudice to Defendant. In sum, the de minimis value of the evidence, Defendant's failure to
show how its late disclosure hindered his defense, and the absence of
prosecutorial misconduct on this issue lead us to conclude that the judge
acted within her discretion in admitting the evidence without sanction.
further contends that the blood evidence lacked relevance and should not have
been admitted. The State's blood
expert testified only to the existence of human blood on the glove, not to its
type or any other information that might have shown Defendant had physical
contact with Jones. Arguing the
glove served only to inflame the jury, Defendant contends the judge erred by
not weighing its probative value against its potential for unfair prejudice,
as required by Ariz. R. Evid. 403 and State v. Chapple, 135 Ariz. 281, 288,
660 P.2d 1208, 1215 (1983) ("the correct rule is that exhibits which may
tend to inflame the jury must first be found relevant"). The record indicates that the blood spot was unremarkable and could
only be seen on close inspection of the glove. We find that the glove was not inflammatory.
Although the evidence had little probative value, we find no
error in admitting it.
When seeking the death penalty, the State must prove aggravating circumstances
listed in A.R.S. § 13-703(F) beyond a reasonable doubt. State v. Kiles, 175 Ariz. 358, 369, 857 P.2d 1212, 1223 (1993), cert.
denied, 510 U.S. 1058, 114 S.Ct. 724, 126 L.Ed.2d 688 (1994). Defendant has
the burden of proving any statutory or non-statutory mitigating
circumstances by a preponderance of the evidence. Id. at 373, 857 P.2d at 1227;
§ 13-703(G). The death
penalty is required if at least one aggravating factor is found and the
mitigating circumstances are not sufficiently substantial to call for
leniency. A.R.S. §
13-703(E). This court
conducts an independent review of the aggravating and mitigating factors in
all capital cases to determine whether the death penalty is warranted. State
v. Wood, 180 Ariz. 53, 68, 881 P.2d 1158, 1173 (1994).
The cruel, heinous, or depraved aggravating factor
Defendant challenges the trial judge's finding that he committed the murder in
an especially cruel, heinous, or depraved manner. A.R.S. § 13- 703(F)(6).
judge determined that Jones was conscious until the second strangulation; she also found that ransacking Jones' house while he was bound, leaving
him to agonize over his fate, sticking him several times with a hypodermic
needle, and strangling him twice caused terror and horror in Jones' mind.
The judge concluded that these events satisfied the meaning of cruelty
under our case law. Special
Verdict, Nov. 20, 1992, at 33-34. The
judge also found that strangling rather than shooting the victim, leaving the
victim's pants unzipped before laying him on his bed, attempting to inject an
unidentified substance into him, and post-offense statements made to
friends and roommates justifying and relishing the murder sufficiently
demonstrated Defendant's depraved mental state and attitude, setting this case
outside the usual first-degree murder. Id. at 34-35.
Defendant argues that the judge's findings lack sufficient support. First, Defendant argues that the facts of this case do not support a
finding of cruelty because they do not show beyond a reasonable doubt that
Jones suffered mental anguish and terror. Defendant cites a number of cases describing circumstances this court
has found to be especially cruel, claiming this case does not come close.
Second, Defendant argues that the facts do not satisfy the Gretzler
factors to support a finding of heinous and depraved. See State v. Gretzler, 135 Ariz. 42, 52, 659 P.2d 1, 11, cert. denied,
461 U.S. 971, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). We need not reach the heinous or depraved elements if we find cruelty
beyond a reasonable doubt. Kiles, 175 Ariz. at 370, 857 P.2d at 1224*188
**310 (finding beyond a reasonable doubt any one of the three elements
of § 13-703(F)(6) is sufficient to constitute an aggravating
We have held that:
murder is committed in an especially cruel manner if the perpetrator inflicts
mental anguish or physical pain upon the victim before the victim's death.
Mental anguish includes a victim's uncertainty about [his] ultimate
at 371, 857 P.2d at 1213 (internal citations omitted). A finding of cruelty requires conclusive evidence that the victim was
conscious and suffered mental or physical pain at the time of the offense.
Bible, 175 Ariz. at 604, 858 P.2d at 1207.
testified that Jones did not struggle or appear to be breathing when Defendant
strangled him the second time. Barker
heard him gagging the first time he was strangled. The medical examiner testified that Jones could have been conscious
while being strangled the second time, but he could offer no evidence of
Jones' actual consciousness. Other
evidence, however, convincingly shows that Jones suffered extreme mental and
physical pain. He was conscious
when the two men with a gun confronted him in his home, bound his hands behind
his back, took him upstairs, asked him whether he wanted to be left tied or
put to sleep, placed him face down on his bed, and pushed his head down while
pulling on the tie to strangle him. He
was conscious while Defendant stabbed his arms several times to inject a
mystery substance. Defendant
believed Jones was conscious after the injections because he heard Jones
snoring, pretending to be asleep, even though Defendant had injected no
sleeping medication. Jones was therefore conscious when he was strangled the first
time. These events certainly
caused Jones mental anguish about his fate, and the needle punctures and first
strangulation caused him physical suffering. We find beyond a reasonable doubt that Defendant inflicted mental
anguish and physical pain on the victim and that the murder was therefore
committed in an especially cruel manner. Thus, the (F)(6) aggravating factor is satisfied, and we need not
consider whether the murder was committed in an especially heinous or depraved
We also find ample support for the other aggravators. It is undisputed that Defendant was convicted of armed robbery,
involving the threat of violence, while on parole, making him eligible for a
life sentence. That conviction
now makes him eligible for the death penalty. A.R.S. § 13- 703(F)(1) and (2).
Defendant also does not dispute that the murder was prompted by a desire for
and an expectation of pecuniary gain. Killing
for financial gain is an aggravating factor for imposing the death sentence.
A.R.S. § 13- 703(F)(5); State
v. White, 168 Ariz. 500, 510-11, 815 P.2d 869, 879-80 (1991),
cert. denied, 502 U.S. 1105, 112 S.Ct. 1199, 117 L.Ed.2d 439 (1992). A pecuniary motive took Defendant to the victim's house and was the
impetus for his other conduct during the ensuing robbery and killing. This qualifies him for the death penalty.
State v. Fierro, 166 Ariz. 539, 551, 804 P.2d 72, 84 (1990).
We independently weigh the mitigating evidence against the aggravating
circumstances to determine whether leniency is called for. State v. Barreras,
181 Ariz. 516, 520-21, 892 P.2d 852, 856-57 (1995).
Defendant's abusive family background
trial judge considered evidence of Defendant's abusive family background and
did not find mitigating value in it. Citing
a line of Supreme Court cases [FN17] requiring courts to consider family
history for independent mitigating weight, Defendant calls the judge's finding
unconstitutional. Although the
judge rejected the evidence as a mitigating factor because he failed to
establish a nexus between his family background and his crime, **311 *189
Defendant argues that the judge violated the law.
Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982);
Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).
Defendant misconstrues the Supreme Court cases culminating in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d
256 (1989). They hold only that "a sentencer may not be precluded from
considering, and may not refuse to consider, any relevant mitigating evidence
offered by the defendant as a basis for a sentence less than death."
Id. at 318, 109 S.Ct. at 2946. Having
considered family background during the penalty phase, the sentencer must give
the evidence such weight that the sentence reflects a "reasoned moral
response" to the evidence. Id.
at 319, 109 S.Ct. at 2947. The sentencer therefore must consider the
defendant's upbringing if proffered but is not required to give it significant
mitigating weight. How much weight should be given proffered mitigating factors
is a matter within the sound discretion of the sentencing judge. State v. Atwood, 171 Ariz. 576, 648, 832 P.2d 593, 665 (1992).
We have held that a difficult family background is not always entitled to
great weight as a mitigating circumstance. State v. Wallace, 160 Ariz. 424, 426-27, 773 P.2d 983,
985-86 (1989) ("A difficult family background is a relevant
mitigating circumstance if a defendant can show that something in that
background had an effect or impact on his behavior that was beyond the
defendant's control."), cert. denied, 494 U.S. 1047, 110 S.Ct. 1513, 108
L.Ed.2d 649 (1990). We have since
reaffirmed that family background may be a substantial mitigating circumstance
when it is shown to have some connection with the defendant's
offense-related conduct. White,
168 Ariz. at 512-13, 815 P.2d at 881-82.
Defendant has failed to connect his family background to his criminal conduct.
Defendant's sisters testified at the sentencing hearing that he was a
small child with dyslexia and a bed-wetting problem and that he was
physically and mentally abused by his overweight and diabetic mother. One sister related that his mother forced him to kneel in a box of rice
when he complained that his leg hurt after falling from a wagon, and that she
gagged him with a sock and bound his hands in the back of the car while on a
family trip. These events,
however, occurred when Defendant was young, years before he robbed and
murdered at the age of 27. They
do not prove a loss of impulse control or explain what caused him to kill.
The trial judge considered this background and gave it little or no
mitigating value. We do not
Other mitigating circumstances
The trial judge considered all the statutory mitigating factors under §
13-703(G) and gave them no weight. She found some mitigation in Defendant's drug use because it may have
impaired his ability to conform his conduct to the requirements of the law.
She found Barker's disproportionate sentence in relation to
Defendant's a mitigating circumstance and gave it significant weight. Nonetheless, she concluded that the mitigating evidence was not
sufficiently substantial to require leniency, even if any combination of only
two aggravating factors is affirmed by this court.
have examined the record for mitigating circumstances and find the rather
sparse evidence insufficient to overcome the weight of the aggravating
circumstances. We therefore
affirm the death sentence.
preserve issues, Defendant also raised the following arguments, which we
summarily reject. See Atwood, 171
Ariz. at 645 n. 21, 832 P.2d at 662 n. 21.
The equal protection clause requires sentencing by a jury
claim has no logical basis and has been rejected in State v. Landrigan, 176
Ariz. 1, 6, 859 P.2d 111, 116, cert. denied, 510 U.S. 927, 114 S.Ct. 334, 126
L.Ed.2d 279 (1993).
Arizona's death penalty statute insufficiently channels the sentencer's
claim has been rejected in West, 176 Ariz. at 454, 862 P.2d at 214, and State
v. **312 *190 Greenway, 170 Ariz. 155, 164, 823 P.2d 22, 31 (1991).
The death penalty violates Defendant's Eighth Amendment right against cruel
and unusual punishment
claim has been rejected by the United States Supreme Court in Walton v.
Arizona, 497 U.S. 639, 655-56, 110 S.Ct. 3047, 3058, 111 L.Ed.2d 511
(1990), and we reject it now.
required by A.R.S. § 13-4035, we have searched the record for
fundamental error and have found none. [FN18] Of the issues raised by Defendant on appeal, none requires reversal.
We therefore affirm Defendant's first-degree murder
conviction and the death sentence.
The convictions in this capital case were appealed, briefed, and argued before
the effective date of the repeal of A.R.S. § 13-4035. See 1995 Laws, ch. 198, § 1.
V.C.J., MOELLER and MARTONE, JJ., and CORCORAN, J. (Retired), concur.