State v. Fulminante

778 P.2d 602 Arizona, Appellee, STATE of FULMINANTE, Appellant.

Oreste C. No. CR-86-0053-AP. Arizona, Supreme Court of In Banc. June 1988. April Reconsideration Granted 1989. Supplemental Opinion July 1989. Sept. Reconsideration Denied Corbin, Atty. by William K. Gen.

Robert Jarrett, III, Asst. Barbara A. J. Schafer Phoenix, Gen., appellee. Attys. for Trebesch, County Maricopa Dean W. Kemper H. Defender James Public Collins, County Depu- Maricopa Stephen R. Defenders, Phoenix, appel- for ty Public lant.

CAMERON, Justice.

I. JURISDICTION Fulminante, ap- Defendant, Oreste C. guilt judgment peals a verdict (A.R.S. degree murder of first the crime 13-1105(A)(1)) of death a sentence § 13-703). jurisdiction (A.R.S. We have § 5(3) and Art. 6 pursuant to Const. § 13-4031, 4033, and 4035. A.R.S. §§

II. ISSUES following on raises the issues

Defendant appeal: A. Trial Issues: determining trial court err 1. Did the for the Federal paid that a informant Investigation did not vio- Bureau amendment fifth late defendant’s rights?

2. holding Did the trial court err Is penalty 6. Arizona’s death statute Anthony

defendant’s confession to unconstitutional because it shifts voluntarily Sarivola was made? burden proof regarding mitigating ciucumstances defendant? 3. Did admission defendant’s state- Anthony ment to Sarivola violate de- Is penalty Arizona’s death statute right fendant’s sixth amendment unconstitutional it violates counsél? right defendant’s sixth amendment jury to a trial on issue of 4. Did admitting the trial court err in sentence of death? defendant’s statements Donna (Sarivola) Misch because the state- court, 8. Must this independent its poison- ments the were “fruit of the evidence, review of the find the that ous tree”? death inappropriate pun- sentence is 5. Did ishment in admitting the trial court err in a this case?

photograph of the victim into evi-

dence? Post-Trial C. Issues: 6. Did admitting trial court err in the Was 1. defendant denied his constitu- regarding

evidence defendant’s bad right tional to the effective assist- prior character and his bad acts? ance attorney? of counsel his trial 7. Did precluding the trial court err in defendant from presenting evidence III. FACTS party that a third the committed Depart- Defendant called the Mesa Police murder? morning September ment the on

8. allowing Did the court err in trial the report disappearance the to of his eleven- prosecutor present re- evidence year-old stepdaughter, Jeneane Michelle garding the informant’s truthful Shortly Hunt. a thereafter drove to character? hospital pick up (Jene- to' Mary, his wife allowing 9. Did the court in trial err the mother) just ane’s who had been released prosecutor to elicit from testimony a following surgery. told Mary He that the police regarding officer his reasons previous victim had not home the returned for suspecting defendant was evening. murderer? September body On aof girl, young Jeneane, later identified as B. Death Penalty Issues: in discovered the desert east Mesa. The “cruel, heinous, 1. Are the terms or de- had victim been shot the head twice with praved” vagueness? for void large weapon range caliber close a 2. Did the court discre- trial abuse its ligature was found her around neck. Testi- sentencing tion in defendant to mony pathologist indicated that the death? ligature found around the victim’s neck did 3. Does the have defendant a constitu- death, although not contribute to her it right tional to a voir dire examination could have been used effect non-fatal judge penalty of the trial in a death choking prior Additionally, to death. tests case? spermatazoa for and seminal fluids were However, negative. this was not unex- 4. penalty Is Arizona’s death statute given pected decomposing condition of requires unconstitutional it body. imposition penalty of the death when aggravating one exists circumstance Because of a number inconsistencies mitigating and there are no factors? concerning defendant’s statements disappearance, Is death statute penalty particularly Arizona’s victim’s his allegedly that unconstitutional because it claims the victim was instructed in the aggra- evaluating good lacks standards for use of firearms and that he had a relationship victim, vating mitigating circumstances? with the defendant find out more about the killing. told suspect in the Defen- Sarivola became a relationship rumor. stated that the be- dant’s wife poor tween the defendant and victim was Sarivola, time, according de- At this never instruct- and that the defendant had “rough” receiving treat- fendant had been However, in use of firearms. ed the victim concerning inmates ment from the other time and charges no were filed at rumor, so told defendant Sarivola for left the state of Arizona New truth, tell him the Sarivola if he would

Jersey. help. him 20 October give would On that he had defendant admitted to Sarivola investigation', police learned During the on out to the desert stepdaughter taken his had September 1982 defendant that on 13 motorcycle, and then shot her twice rifle gun shop to trade a gone to a Mesa his .357 revolver. Defendant the head with extra for his .357 revolver. for an barrel choked, sexu- that he further told Sarivola Additionally, police defendant had learned beg assaulted, ally and made victim including a 1965 prior criminal record shooting stat- her. He also her life before impairing Jersey felony conviction for New pile weapon in a ed that he hid the murder child, and a 1971 New the morals of a scene. of rocks at the murder uttering check with Jersey conviction for a police in- forged Ray a endorsement. The released from Brook Sarivola was Alcohol, authorities of the Defendant was re- formed federal on 28 November 1983. Tobacco, May Bureau of facts of 1984. Sarivola and his and Firearms leased fiancee, Donna, at a picked up defendant gathered during investigation, and on defendant local terminal. Donna asked arrested in bus 28 October defendant was any if relatives or friends he wished he had Newark, violating 18 Jersey New for he could not to see. Defendant indicated 1202(a), C.App. possession of a firearm § he had killed a return to his home because transported by a felon. The defendant was They defen- girl little in Arizona. drove Phoenix, convicted in the U.S. District Pennsylvania. friend’s house in dant to a offense, a Court for the and sentenced to In defendant was arrested June years minimum of two in the Federal Pris- weapons for another violation. New York Springfield, release on in Missouri. On Springfield, again from arrested on was in- September 1984 defendant was On charge possessing a firearm. another murder, degree pursuant to dicted for first another two He was convicted received trial, 13-1105. Prior to defendant A.R.S. § year sentence. suppress evidence of the state- moved to The and Donna. ments made to Sarivola Ray This time defendant was sent to the his motions. trial court denied Institution in Brook Federal Correctional Brook, Ray York. While in New defendant was 19 December On inmate, An- another became friends with jury degree of first mur- guilty by found a Sarivola, serving 60-day thony who was a stepdaughter. The trial court der of his Sarivola, extortion. who was special sentence for that the murder found in its verdict crime, by cruel, organized had especially once involved with in an hei- was committed paid for the depraved this time become a informant manner. The trial court nous and Investigation. Ray mitigating In Federal Bureau of were no circum- found there Brook, orga- aggra- masqueraded as an sufficient to overcome the Sarivola stances figure. vating circumstances and sentenced defen- nized crime appeal This dant to death. follows. and defendant became After Sarivola friends, heard a rumor that defen- Sarivola A. Trial Issues suspected killing a child dant was 1. MIRANDA WARNINGS about asked defendant Arizona. Sarivola rumor, initially it that he was defendant denied that was Defendant contends but interrogation Sari- subjected contact in the Fed- to custodial true. Sarivola told his of the fifth amendment Investigation, Agent Walter vola in violation Bureau of eral As a re- Constitution. Ticano, Agent Ticano the United States the rumor. about suit, he claims the promises, statements made to Sari- threats or coercion they agents. vola were Government or inadmissible were its obtained in violation of v. Ari- Miranda agree. We zona, Mathis, In serving the defendant was prison time in a filing federal false response In sup- to defendant’s motion to against govern- claims the United States statements, press these the trial court incarcerated, ment. While Mathis was ruled: questioned by agent of the Internal (IRS) concerning Revenue Service another alleged

The Court finds that the state- matter in which Mathis had neither ments contained in been Response the State’s Thereafter, charged. arrested nor (which the IRS adopted by the Defendant for brought charges against criminal Mathis on purposes hearing of this only) do not fall the basis of his statements to the IRS parameters. within the Miranda agent. Relying Mirando, on the United Court does not find that at the time the Supreme States Court held that it was re- statements were made that the Defen- versible error for the trial court to have in custody deprived dant was of his permitted the introduction of Mathis’s self- significant freedom in way. Although incriminating given statements without the Defendant in a Federal Correc- warnings right as to his to remain silent Institution, tional there was no “custodi- and seek the assistance of counsel. interrogation”. determining al wheth- er interrogation, there was a custodial Initially, argument defendant’s 1) applies the Court has considered appears the site of Mathis meritorious. Like Mathis, interrogation, 2) serving prison whether the defendant was investi- incriminating term when he made his gation 3) had on state- suspect, focused the Mathis, ments. Like ques- defendant was objective whether the indicia of arrest government agent tioned about a 4) present length were and the and form crime for which he had neither been arrest- interrogation. of Kennedy, the Mathis, charged. ed nor Like (App.1977) 570 P.2d 508 [ ]. charged ultimately and was with convicted Although the site of the statements incriminating of a crime based on his state- given in this case was at a Federal Cor- has, however, given ments. Mathis been Institution, rectional the Court finds that interpretation may narrow and be distin- investigation yet no had focused on the guished from the instant case. Defendant, objective there was no indicia Appeals The Ninth Circuit Court of has matter, respect of arrest with to this and noted: length the of the conversation mini- was question unique The in this case is

mal. residing jail because Cervantes was The Court has reviewed case of questioning when the occurred. Cer- States, Mathis v. United 391 U.S. 1 [88 States, vantes relies on Mathis v. United (1976) S.Ct. 20 L.Ed.2d 381] nothing finds inconsistent with this proposition for that inter- holding. present Court’s This Court rogation during prison confinement con- every does not read Mathis to hold that interrogation requiring stitutes custodial paid statement made to a informant as a warnings. Miranda We do not read question person result of a asked while a broadly. so Mathis is incarcerated is a violation of Miranda. a(c ¤ jjc $ $ purpose protections of the Miranda pressure is to curtail coercive to answer Adoption of Cervantes’ contention questions which could flow from a custo- only would not be inconsistent with Mi- charged interrogation dial of someone illogi- randa but would torture it to the suspected position with or of a crime. The Court providing greater protec- cal of alleg- find prisoner nonimpri- does not that the statements tion to a than edly counterpart. of made this case were result soned We cannot believe (citing F.2d Conley, Supreme intended such a re- United States Court Cir.1985), Thus, (4th Con while nar- sult. Mathis have States, ley v. United range possible situations in rowed the of (1986)). 93 L.Ed.2d questioning may on-the-scene take which prison, place in a find Mathis no we We do not believe the defendant was question- express intent eliminate such interrogation subject to custodial Sarivo- ing entirely merely by of virtue the inter- warnings required. were la. Miranda prisoner status. viewee’s We find no error. Walker, Cervantes Cir.1978).

(9th OF 2. VOLUNTARINESS CONFESSION that, pur We believe for Miranda trial next contends that the Defendant custody poses, defendant not in when determining confes- court erred in that his questioned considering him. In Sarivola De- voluntarily sion to made. Sarivola custody, an is in we whether individual argues fendant that the confession was have stated: during and its product of coercion use Because the circumstances each due under process trial was a violation of case determination of will influence a the fifth fourteenth amendments of custody” an is “in whether individual Art. United States Constitution and § administering purposes Miranda of the Arizona Constitution. warnings, objective custody indicia he was Defendant contends must be considered. State Kenne- murderer, alleged in dan- child he was dy, 116 511 ger physical harm at the of other hands appeals (App.1977), the court of listed defen- inmates. Sarivola was aware that factors, approve, four we three of which possibility dant of retribution faced making consider in the determination inmates, from in return for other custody. of whether an individual is respect the confession with to the victim’s three the site

These factors are: of the murder, protect would him. More- Sarivola questioning; objective whether indicia of over, the defendant maintains that Sarivo- present; length are and the and arrest “extremely be- promise la’s coercive” interrogation. the form of We also will the cause the inference from “obvious” the to consider method used summon the promise jeop- his life in was that would be v. individual. See United States Bautis- ardy agree. if he did confess. We (9th ta, Cir.1982). 1292 prepon must show a The state Cruz-Mata, 138 Ariz. 674 State derance of evidence that confession is the a 1368, 1371(1983). case, P.2d In the instant freely voluntarily made. and State v. Gra Anthony place any Sarivola did not re ham, 209, 211, 135 660 Ariz. P.2d 462 defendant, the the straints on and defen (1983). A trial court’s determination re presence free to dant was .leave Sarivola’s garding of a confession the voluntariness any objective time. indicia of arrest at however, totality in of must be viewed a The mere fact that the de were absent. upset the circumstances and will not on the was incarcerated at time the fendant appeal the defendant that the unless shows does not a were made mandate statements ruling clear and court’s manifest error. finding custody. prison A is not inmate 462. Id. at 660 P.2d at automatically “custody” in within the meaning case, of Miranda. United States v. hearing In the at the on the instant (4th Cir.1986).. Cooper, provided F.2d to suppress, motion “Custody” prison tending in the no “restriction” trial little or evidence court with “ in ‘necessarily implies change support a claim he was context to defendant’s that surroundings to prisoner danger which re that Sarivola used this fact Thus, on the imposition in an added on freedom coerce confession. evidence sults ” it, court did not abuse its Cooper, 800 F.2d at 414 before the trial of movement.’ 1489, 1493, (1964) (quot- discretion.1 ing States, Bram v. United Since we are mandated to search 183, 187, L.Ed. 568 error, the record for fundamental A.R.S. (1897)). apply These standards also 13-4035, we note that based on defen § through the states the fourteenth amend- argument dant’s that the confession was Malloy Hogan, ment. involuntary, the trial court instructed S.Ct. at jury as follows: Arizona, prima In are confessions facie any You must not consider statements involuntary and the burden is on the made the defendant to a enforce- law state to show the confession was you ment officer unless determine be- freely voluntarily given. yond a reasonable doubt that the defen- Hensley, 137 Ariz. 669 P.2d voluntarily. dant made the statements proof The burden of is that of a The defendant’s statement is not volun- preponderance the evidence. Id. tary whenever a enforcement officer law While the trial court’s determination used sort of violence or threats or voluntary nor- confession was will not any promise immunity or benefit. mally appeal, record be disturbed on result, As a the trial court instructed the must contain evidence from which the voluntariness, jury on the issue of but appellate court can find that the state jury failed to instruct the on whether An- proof. carried its burden of State thony Sarivola was a law enforcement offi- Hall, jury

cer and it is not clear whether (1978). Bearing requirements these understood Sarivola to be a “law enforce- mind, we have examined the entire ment officer”. We believe the trial court record find does that it not contain instructing jury erred in not on who support sufficient evidence to the trial would be a “law enforcement officer” when findings' of court’s voluntariness. considering the voluntariness the confes- Thomas, sion made. rebuttal to the defendant’s motion At the time defendant admitted suppress, alleged that at no time the state Sarivola, killing paid was a Sarivola did the defendant indicate he was fear of government agent working with the F.B.I. or did he seek Sarivola’s other inmates confession, passed Prior Sarivola “protection.” Additionally, says the state alleged of the defendant’s murder rumors spoke only that the defendant to Sarivola along being of a child to the F.B.I. On conversational tones about what he had rumors, informed of these the F.B.I. re step-daughter. a re- done to his Such quested that Sarivola find out more. At sponse prima insufficient to create a time,

the same the defendant had been facie establishment of voluntariness a rough from in receiving treatment other of preponderance Hensley, the evidence. allegedly in of the fact that he mates view 87, 65, ap- 669 P.2d at 137 Ariz. at later In been a child murderer. re have 598, 142 Ariz. peal, Hensley, v. State protection, offer of sponse to Sarivola’s P.2d 689 The statements should stated: confessed. As we have suppressed. have been voluntary deemed free and within To be however, amendment, fact, In a similar meaning of the fifth a view of explicit confession was also have and even more confession must not been obtained Donna, implied promises, and this latter confession by “any direct or how- made “fruit of the slight, any was admissible and ever nor the exertion ” added). Hence, poisonous any error occur- (emphasis tree.” improper influence 1, 7, ring in the instruction on the voluntariness Hogan, 378 U.S. Malloy v. truth, ruling suppress, would tell the he could be motion to the defendant 1. After the on the promise protected." below this had been As discussed Sarivola testified that the defendant involuntary. guys, receiving "rough and if the confession treatment from the rendered Packer, v. trial); United States admitted at is harmless be- confession of the Sarivola Cir.1984) (harm- (8th yond a doubt. 730 F.2d reasonable subsequent statements re- less error when for harmless The basic federal standard inadmissible statements iterated earlier states: error guilt). strongly indicated constitutional error a federal [B]efore harmless, must be Chapman the court can be held “be- Arizona courts follow See, it harm- to declare a belief that was able doubt” standard. yond a reasonable beyond a reasonable doubt. Montes, 136 Ariz. less e.g., v. State (1983) (subsequent state- 18, 24, 667 P.2d Chapman California, 386 U.S. v. in detail the events (1967). ment recounted 824, 828, 17 L.Ed.2d innoc- initial statement crime and rendered later stated: The court Thomas, v. uous). 130 Ariz. State judgment the harmlessness Our [on (1981), the 435-36, 1217-18 636 P.2d must based on our own error] rule harmless error expressed the court seems reading the record and on what differently: probable impact of to us to have been the If, however, the error did appears it minds of [challenged on the evidence] significantly affect contribute to or average jury. verdict, commit- fundamental error was Harrington California, 395 U.S. pro- on due ted and reversal is mandated 23 L.Ed.2d 89 S.Ct: grounds. cess giv- Arizona formulation was Still another Harrington that the court concluded 440, 450, Winegar, 147 Ariz. State en in harmless of certain evidence was admission (1985): 711 P.2d merely it cumulative of error because was legitimately on the other admitted evidence only if harmless no reason- An error is “overwhelming same issues and that such probability exists that the verdict able defen evidence” otherwise established had the error might been different have Id. also States v. See United guilt. dant’s not been committed. 499, 510-12, 103 S.Ct. Hasting, Sands, 145 Ariz. also See State (indicat 1974, 1981-82, (1983) (improper (App.1985) “beyond a rea ing continuing adherence to testimony was privileged admission of standard). doubt” sonable “not the evidence was harmless error when approached the de Federal courts have case). critical” to the state’s case-by of harmless error on termination called “be the standard is Whether subsequent confession case basis. When doubt,” or “contribute to yond a reasonable constitutionally, there is a defi is obtained affect,” or “no reasonable significantly hold that the admission nite inclination to critical” or some oth probability,” or “not confessions consti prior “inadmissible” formulation, seem to the Arizona courts er See, e.g., United error. tutes harmless overwhelming there is focus on whether Johnson, (3d to establish evidence sufficient additional Cir.1987) (admission of invalid oral confes See, e.g., prosecution’s case. subsequent error when sion was harmless Castaneda, was admissible confession written (admission (1986) of coerced confession Vose, 785 F.2d credible); Bryant v. more v. Hens error). See also State harmless denied, Cir.), cert. (1st 477 U.S. 80, 88-89, 669 P.2d ley, 137 Ariz. 66-67 (1986) 91 L.Ed.2d 570 106 S.Ct. (confession (1983) “merely cumulative (court subsequent confes admitted written other, overwhelming on the same evidence guilt); Martin strongly indicated sion that point”). (11th 918, 932-34 Wainwright, case, sec- the defendant’s denied, present In the Cir.1985) cert. 479 U.S. Phys- guilt. his established (1986) ond confession (improper 93 L.Ed.2d 281 wounds, liga- from the the ical evidence harmless first confession was admission of ture, scene and motor- of the crime later location confession was error when a lawful cycle tracks corroborated the 484-86, confession. 371 407, 416-17, 83 S.Ct. Therefore, (1963). the invalid first Moreover, confession was the defen- cummulative of dant original the admissible second maintains that this con- confession Moreover, “let the cat bag” fession. due out of the to the overwhelm- thus the ing voluntariness of his evidence confession to Donna adduced from the second con- fession, “purge not sufficient to if the taint” of there had not been a first confes- illegally-obtained the sion, evidence. Brown jury the would still have had the same Illinois, 590, 603-04, 422 U.S. 95 S.Ct. basic evidence to convict defendant. The (1975). 45 L.Ed.2d 416 was, admission of the first confession therefore, beyond harmless error a reason- have, Assuming, as we that the confes- able doubt. sion to Sarivola was the result of a viola- tion of fifth rights, defendant’s amendment 3. RIGHT TO COUNSEL the later might confession to Donna be Illinois, inadmissible. Brown v. 422 U.S. argues Defendant next that it was 603-04, However, 95 S.Ct. at 2261. if improper question for Sarivola to him with illegal the taint of the conduct was suffi- presence out the of counsel under the sixth attenuated, ciently that statement and fourteenth amendments to the United admitted as voluntary an otherwise confes- States Constitution and Art. 2 4 of the § sion, considering the original time since the Although Arizona Constitution. defendant presence statement and intervening admits he was not under indictment for Rawlings circumstances. Kentucky, occurred, murder at the time the confession 98, 107-10, 448 U.S. 100 S.Ct. 2562- he nonetheless claims that he was the fo 65 L.Ed.2d 633 investigation cus of the and incarcerated pretense under this in order to obtain in case, present some six months had criminating statements. agree. We do not elapsed original between the confession to Sarivola and the confession to Donna. right The sixth amendment to counsel Moreover, made his confes- during pre-indictment does not attach ques sion to Donna prison, after his release from tioning. Ortiz, presumably longer at a time when he no protection. Lastly, needed Sarivola’s Arizona, Ortiz v. defendant made the confession in the At the time of course of a casual conversation with Don- confession, serving the defendant was na, agent who was not an of the state. charge a term on an unrelated and had not yet Moreover, context, any been indicted for When viewed in murder. this “taint” record, on a from the sufficiently based review of the earlier confession was there is permit neither attenuated to any allegations evidence nor admission of Don- that at confession, testimony. Any argument na’s the time of the based on either Sarivola poisonous “the fruit of the FBI tree” contact were aware of doctrine offi is, therefore, inapplicable. investigation cial in Arizona. Under these facts, adversary proceeding begun no had 5. PHOTOGRAPHIC EVIDENCE questioned by when defendant was Sarivo la. right Defendant’s sixth amendment Defendant next contends that counsel was not violated. admitting “gruesome trial court erred in repulsive” photograph showing liga 4. FRUIT OF THE POISONOUS TREE ture around the victim’s neck. Before ad evidence, mission into photograph argues Defendant next that his con only portions “blacked-out” to show fession to sup Donna should have been photograph neck and shoulders. The did pressed as the result of Sarivola’s violation not show the face or the arms. of defendant’s fifth and sixth amendment rights earlier, approximately six months previously We have stated that relevant poisonous based on the “fruit of the tree” evidence despite admitted its tend- States, doctrine. Wong ency See Sun v. passions jurors United to inflame the of the if

247 put had m danger character not been probative outweighs of defendant’s its value the 401, 403; agree. issue. We do not prejudice. unfair Ariz.R.Evid. 520, 533, 703 P.2d Bracy, 145 Ariz. 404(a)(1) the Admittedly, precludes Rule denied, (1985), Bracy v. Ari 477 cert. introducing evidence character state from zona, U.S. 106 88 S.Ct. conformity acted in that defendant to show (1986); Chapple, v. L.Ed.2d 932 character character unless the with such (1983). Ariz. by first the accused. evidence is offered to a photo We the was relevant believe not, however, wheth- We need determine fact in The defendant at trial assert- issue. under this er the was admissible evidence ed, by way questioning, the victim of that the rule. believe that evidence We being shot. The

was not choked before relationship with the defendant’s troubled ligature positioned the photograph shows of on the issue mo- victim was admissible is photograph on the neck. victim’s 404(b), pursuant to reads: tive Rule which the contested issue of whether relevant to crimes, wrongs, of Evidence other Accordingly, the the victim was choked. prove the char- acts is not admissible probative is of this issue and photograph person in that he acter of a order to show properly admitted the trial court. State It conformity may, acted therewith. Hallman, P.2d v. however, pur- for other be admissible motive, poses, proof opportu- as of such Additionally, pho- we find the blacked-out intent, nity, preparation, plan, knowl- tograph particularly gruesome, was neither edge, identity, or absence of mistake or inflammatory. find repulsive nor We no accident. error. 404(b) Rule Rules of Evidence. Arizona prior between This evidence of trouble 6. CHARACTER EVIDENCE derives its the victim the defendant challenges a of in- Defendant number existence relevance from the fact that the of stances where evidence character and only prior of ill the victim will toward prior erroneously admitted. bad acts were of crime renders the commission the more probable, to show the malice but also tends “spanking” a. The incident perpetrating or motive of the defendant in act, trial, prior the crime. Evidence of this bad At the victim’s mother and expres together of that taken with defendant’s former wife the defendant testified occasion, victim, get a spanked on one had sions to even with show defendant board, jury a spanking leaving continuing state of mind from which the victim with a properly could infer that defendant had bruises on her buttocks. The incident was officials, Jeffers, reported kill v. police to the school a motive to the victim. State 404, 418, 661 called to inves 135 Ariz. who later on Arizona, (1983), tigate Subsequently, defen v. the matter. Jeffers “get dant told the victim he would even” S.Ct. grounds, her, her other with and that he would “kill fuck reversed on Jeffers (9th Ricketts, ing argues this v. 480-481 Cir. ass.” Defendant evi 1987).2 prop the evidence was improperly dence admitted under Ari We believe Evidence, 404(a)(1) erly admitted. zona Rules aggravating ing holding to the factors for on remand construction

2. The Ricketts Jeffers upholding resentencing may In a similar appear to Worat the death sentence. situ for overrule Ricketts, ation, (9th 1987). Supreme recently Court Cir. the United States F.2d 1450 zeck Woratzeck, findings granted review of this issue decided Cart held the factual (10th wright Maynard, imposing 822 F.2d 1477 Cir. sentence is Court death Arizona 1987), appeals pursuant federal court of to 28 U.S.C. in which the entitled to deference result, 2254(d). aggravating rehearing interpreted the in Okla a factors As motion § scheme, cert. granted, sentencing pending to reconcile homa’s death in the Ninth Circuit ability Maynard question Cartwright, decisions and to these give appeals independently narrow- court b. association with An- c. Prior felony convictions Defendant’s thony Sarivola Defendant next contends he was prejudiced by the admission of evidence Defendant next asserts reversible regarding felony his 1971 conviction for in allowing error evidence to be admitted of issuing checks, bad felony and his 1983 defendant’s Anthony association with Sari being possession conviction for in felon argues vola. The defendant that such evi however, a firearm. points The state out prejudicial dence is because of Sarivola’s object defendant did not to the organized connection with crime in New prior introduction of the convictions at trial York. The state maintains that such evi and, therefore, right any waived to assert dence necessary why establish Sari that the trial court appeal. erred on State prison vola was in and the circumstances Thomas, 130 Ariz. 636 P.2d under which defendant came to make his agree confession. We with the State. During pre-trial proceeding, it be- Initially, we note that evidence of Sarivo- came obvious that evidence of defendant’s organized la’s crime connections was rele- jail time would be admitted. This would be vant evidence admissible under Rule 401 to true of defendant’s confession to Sarivola why show may have confessed complete story as well as the of defen- protection Sarivola to seek from the rest (Sarivo- dant’s confession to Donna Misch Moreover, of the population. inmate Sari- la.) Thus, prior at least one of defendant’s vola’s crime connection was relevant convictions would become known to the why show defendant would confess to jury. this, Knowing the trial court in its someone of ilk seeking protec- Sarivola’s in voir dire jury of the asked: tion. There will inbe this case evidence that nections would dant rather than nection could serve to judge is invested with considerable discre- case, the defendant has failed to show how evidence of Sarivola’s unless confession, far as tion. discretion will not Hensley, dant. That Sarivola was involved with or- ganized crime reflected on Sarivola’s char- acter, not the defendant’s weighs Ariz.R.Evid. 17A A.R.S. prejudice. and admissibility of tially outweighed by nections excluded if its Although probative have, Id. at clearly Sarivola any prejudicial effect. Rule may Rule Sarivola’s Sarivola’s In fact, value of this evidence out- abused. probative testified determining cause 403, Ariz.R.Evid., relevant, prejudicial. been beneficial to defen- 691 P.2d at 693. Such be disturbed on impeach organized organized organized prejudice evidence, Id. as to defendant’s value is substan- danger character. they may In the instant Sarivola and We believe crime con- crime con- crime con- relevancy to defen- the trial of unfair still be appeal so presence Later, Judge, I don’t think so. Most of that is motion? fact that the Defendant was incarcerated State. Defendant, of his the court November Motion Limine filed moot now as I understand it because your ability verdict victions you should consider that evidence. that Mr. Fulminante has had fects of that kind of evidence and how further Mr. Fulminante has been convicted of other crimes in Mr. Scull The Court: The next matter Would the Raybrook inquire sit witnesses, Is there in instructions as to the following ^[*] enter an order of its this matter? 25, relating should he take the to render a fair and Federal Prison in New York fact, however, jury. past, (prosecuting ^[*] witnesses, any argument if any, concerning the occurred outside the past. have ^[*] to a the State dated allowing just knowing and that the I’ll request ^[*] stand, prior attorney): effect on impartial give you legal on this awas $ con- ef- We find no error. ques- there has been an admission in the Honor, that this suggest you, I to Your tioning jury the fact that the to the about incarcerated, attempt lay to an so I has been Mr. Defendant would Scull’s was be- go I misconduct then that would be able to undercurrent of sexual assume trial, client. jury pertaining my into to a limited extent to at the to this at fore surroundings concerning of least no in his case at all show There’s evidence client and by my confessions. sexual misconduct therefore, Honor, request I Your would really opposite The of a Court: It’s point in time that the Court order at this motion in limine. It’s a motion to—antic- on put case as I that neither on the direct ipating possible objection, suppose; is a witnesses, nor, if by Mr. Scull from his right? that stand, my in his cross-ex- client takes the think, Well, yes. Mr. I Scull: prior my of as to his amination client aware, any you as the time Court con- year that 21 old convictions should has in mention that a Defendant been be into evidence. viction allowed charges, you prison got have on other Well, okay. pur- for The Court: Just almost instant mistrial. So avoid that clarification, request first situation, bring up poses it of I ahead want in of the was to allow to come time. evidence in imprisoned your fact that client was right. you The Do All wish to Court: York, in imprisoned New what he was that, Koopman? Mr. heard on for, underlying felony New York and the (defendant’s attorney): Mr. Koopman for prison that he in for which crime was Yes, Honor, Honor. Your I have Your related. to Mr. Scull it already indicated that long Koopman: saying And I’m as Mr. to bring would be ludicrous of us not into goes just as it to the 1971conviction back bring in or in fact or allow a direct check, was uttering for the a false which Scull, presented by case Mr. that fact felony, and to the 1964 convic- a not back my Ray in client incarcerated Brook was tion for carnal of a child. abuse Otherwise, there could Prison. be no explanation for the conversation between some attorney Defendant’s realized that him and it and Mr. Sarivola would cer- prior convictions evidence defendant’s tainly my attempts hamper to attack Mr. Indeed, trial come into evidence. would .the credibility. Sarivola’s already prior court had a convic- mentioned this, problem arises that with jury. in The defen- tion his remarks to the Honor, Your I is that do want the attorney agreed dant’s that the conviction jury unknowledgeable as to left what uttering pos- in checks and felon for false specific charge and if the fact was of a heard and' at session firearm could be doing illegal possession, he time for keeping time in the same was successful firearm, felon, as a of a which was prejudicial camal the more conviction of understand, magnum, I he .357 which knowledge jury. of a child from the Since in owned here Arizona. uttering false checks the convictions for Well, possession jury if tell the that and felon of a firearm were we he was legitimate doing possession, purpose Ray time in Brook for introduced firearm, strategy by attorney, he possession as a of a trial defendant’s felon they guess seemingly good bargain struck in allow- going trying to be are keeping underlying felony ing the conviction to come while what the was. evidence of the for carnal knowl- conviction I, therefore, have indicated Mr. Scull edge error. out. We find no agree stipulate I’ll that he bring my the fact into evidence Relationship d. mth client in 1971 of the crime was convicted Wife false uttering a check endorse- Defendant that the admis- next contends ment, guilty fact was found which by police detec- sion of statements made of. concerning de- jury’s presence in the tive

[******] fendant’s deteriorating relationship with prior argues improper. his wife to the murder was Defendant first that following place prosecutor’s argument improp jury: clearly The took before the was er, and that it should have been stricken. Q. [By you Did Mr. ever discuss Scull]: is, however, precluded Defendant from ar with Mr. Fulminante on the 16th or 17th guing appeal for the first time on that the relationship stepdaughter, his his with prosecutor’s comments should have been Jeneane? request stricken to the trial where failed [By A. Mark Yes. Jones]: Thomas, so. court to do Q. response? was his What relationship A. He felt that his with his fact, daughter good. In was he made argues Defendant further that worked, Mary the comment that because prejudicial jury it for the to hear the was didn’t, and he that would come Jeneane argument objection question. on the to the problems. himto with her Again, request defendant did not to have Q. right. you All Did he indicate or did jurors’ pres the matter heard outside the relationship event, ever ask him any how his was ence. defendant suffered no Mary? with prejudice prosecutor’s of the com subsequently presented ments. The state Koopman: Objection, Mr. irrelevant. damaging testimony direct and more from The Court: Sustained. defendant’s wife that defendant’s relation Well, minute, let me— wait ship with her find no was troubled. We in, going Mr. Scull: There’s to be a tie error. Judge. you—on I’ll Court: let what basis persons e. Evidence that other sus- asking you be—why are that that are pected had committed you objecting to that? the crime Honor, Koopman: Mr. Your I don’t see court Defendant next contends the trial my saying relationship what client admitting testimony police erred in from a with his do wife has to with the death detective that others felt defendant had girl. of this little I also—I also think This is raised committed the crime. matter might go—we might it be [in- grounds separate as a for error item of fringing] spousal relationship, on the the Trial Issues. We will consider the Honor, privilege Your and the attached heading. question under that thereto, which come into issue at sometime in this case. f. victim’s dislike Evidence of of defen- you. The Court: Let me hear dant asking I’m Mr. Fulmi- Mr. Scull: what The victim’s mother testified as follows: relationship nante said about his with Q. [By Mr. Was there a time Scull] Mary. things One of the that the State spent night she at a when over expects prove relationship is that the friend’s house and that was without Mary between Oreste Fulminante and prior approval you? from good. deteriorating rap- It was was Mary [By A. Elizabeth Yes. idly and that’s one of the reasons that we Hunt] homicide, occasion, believe he committed this was Q. Okay. you On that were get girl rid of this so that he could that, doing she advised of relationship re-establish his with his wife. that? see

The Court: Let me counsel at I A. I had found out where she was. moment, please. bench for a planning did not know that she was no, knowledge, my do that without but (Whereupon, held discussion I did find out where she was. between the Court and both bench counsel, hearing jury Q. right. you out of the All What did do about it? Reporter.) and the Court Well, arrangement A. I made an with girl objection is sustained. the mother of the little whose The Court: The it would be probable than or less stay would ble she where went house the evidence. without until her that weekend take care of my thoughts to collect I had a chance stated: As we have do it. what we should about and decide if it has basis is relevant Evidence in issue prove a material fact in reason to it? you do about Q. right. All What did crime light cast on the if it tends to know, that, she Well, you we decided A. charged. weekend, and I came home over 4, 5, Moss, P.2d 119 Ariz. her, State her, to ask to talk to decided (1978). did know; why me she you she told she it she done and was what not to live of the victim The wish stay to the house with didn’t want the defendant the same house with really she didn’t any Oreste more and it used to in this case because was relevant not if he was defendant did to come back home that the victim and want show along feelings ill existed between get going stay. Establishing that the victim parties. Q. only like that? Is that the occasion hence that the disliked the defendant and never, ever, left has ever A. Jeneane harmonious, were family was not situation the first time. house. That was claims that disputing defendant’s factors argues that evidence of Defendant to murder the no reason or motive he had contin and desire not to the victim’s dislike the defendant Additionally, since victim. defen living in the same household with ue along got that the victim and claimed The defen improperly dant admitted. well, feelings of ill will between and no maintains the evidence was dant further existed, of the vic the statements parties char opinion dispute as to the defendant’s this victim’s relevant to tim’s mother are acter, Arcega, 32 prejudicial People thus is and irrelevant. contention. See 94, 107, Cal.Rptr. Cal.3d disagree. We 338, 350 under the circumstances We believe that unlike the one of statement is This kind made, the in which the statements were and irrelevant recently held inadmissible exception lie to the statements within Charo, Ariz. this court. State 803(3), hearsay- rule. Pursuant to Rule case, In that Ariz.R.Evid., existing the then state of is the victim’s this court held fear may mind of the victim be admissible conduct. prove the irrelevant to defendant’s the victim’s dislike of the defendant. show Conversely, in P.2d at 292. at Id. then A statement of the declarant’s case, dis- evidence of the victim’s this mind, emotion,. existing sensa- state of fear, is like, opposed to of the defendant as intent, tion, (such physical condition as or being used to show the defendant’s not motive, feeling, design, mental plan, conduct; being used as evi- rather it health), including bodily not pain, and but killing for defendant’s motive dence of the prove memory of or belief to a statement the victim. or unless it the fact remembered believed the evidence was admissible We believe execution, revocation, in- to the relates purpose for the of establish- and relevant dentification, terms of declarant’s will. relationship between the ing the troubled 803(3) 17A A.R.S. Ariz.R.Evid. pro- and that the and the victim defendant not desire in this case was The victim’s disputed evidence was bative value remem- prove anything being offered danger outweighed by the of unfair the state It fits within or believed. bered prejudice. Jeffers, 135 exception, and it was relevant. of mind find no error. P.2d at We provides: Rule 401 g. reputation truth- for Defendant’s hav- evidence” means evidence “Relevant fulness existence ing tendency to make the any examination, consequence testi- During is of Sarivola any fact that direct proba- action more fied as follows:

determination of the Q. Now, failed, [By against Mr. kind of children. Defendant what how- Scull]: ever,

reputation, know, you if did Mr. Fulmi- to offer evidence that connected prison have being neighbor nante around the to the crime in this case. The truthful and honest? request court denied the defendant’s to in- troduce this evidence. Well, [By people A. Mr. most Sarivola]: him not to believe be truthful. Before a defendant introduce evi- person may dence that another have com- argues Defendant this evidence was not crime, mitted the the defendant must show presented purpose impeachment, for the tendency that the an inherent evidence has testify, because the defendant did not but person to connect such other with the actu- presented rather to show Vague al commission crime. character, was of in violation of bad Rule grounds suspicion are not sufficient. 404(a), Arizona Rules of Evidence. Defen- Williams, dant also contends the admission of the (1982). P.2d 608(a), evidence violated Rule Arizona Rules of Evidence. defendant, by The offered evidence although establishing party the third allegation. We need not consider this may ability have had the to commit the objection may Defendant made no not crime, failed to connect him to the murder. question appeal. raise the on We have in The trial court’s discretion this matter previously held: not unless it has will be disturbed been It failure well established that to Id. clearly abused. 650 P.2d at evidence, object testimony argu- to or by find 1212. We no abuse of discretion appeal. ments waives these matters on the trial court. See, Wilson, e.g. State v. 113 Ariz. (1976). Additionally, par- P.2d 235 a 8. ANTHONY EVIDENCE OF SARIVO- ty distinctly must state the matter to LA’S CHARACTER objects grounds he which and the of his trial, Prior to the trial court ruled that Baca, objections. State v. 102 Ariz. impeach the defendant would be allowed to (1967): 425 P.2d 108 17A Rules of A.R.S. specific Anthony Sarivola with a instance Evidence, 103(a)(1). failing By Rule agent. which he had lied to an FBI As a timely, specific objection make a to the strategy, prosecutor matter of trial dis- prosecutor’s remarks or the victim’s tes- during his direct exami- closed incident timony, appellant has waived these is- agent. prosecutor FBI The nation of the appeal finding sues on a of funda- absent agent opinion then asked the his as to mental error. credibility. Sarivola’s Defendant unsuc- Thomas, State v. 130 Ariz. cessfully objected. also, See P.2d review, defendant asserts the admis- On Smith, testimony sion of the violated the Arizona remand, appeal after state: Rules of Evidence which 687 P.2d 1265 credibility may The of a witness error, such, if was waived. supported by attacked or evidence opinion reputation, subject form or but THAT A THIRD PARTY EVIDENCE (1) to these limitations: evidence THE COMMITTED MURDER only refer to character for truthfulness trial Defendant claims the court untruthfulness, (2) evidence of precluding erred in relevant evidence bear only truthful character is admissible af- ing to the defen on reasonable doubt as ter character witness guilt. proof dant’s Defendant’s offer of by opin- truthfulness has been attacked neighbor that a of the victim and showed reputation ion or evidence or otherwise. motorcycle, the defendant drove a owned 608(a) Ariz.R.Evid. attempted magnum handgun, had .357 occasion, agree. Rule police kill on one We do not Under officer 608(a), may testify opin- to his suspected committing crimes a witness as ion of party’s Q. another truthfulness if the You physi- knew he was from what party’s truthful character has been at- you cal point evidence that had at that Hilton, tacked. United States v. time, Officer? (11th Cir.1985). In the instant A. From the inconsistent statements at case, the trial court had ruled that Sarivo- that time. la’s truthful character could be attacked Q. From the inconsistent statements defendant. It was not error for the state recall, wherein he said if I “I can drove sting” only introducing “draw the Junction,” Apache toward when fact on direct examination the evidence of in- Riggs he told Officer he drove toward stances in which Sarivola had lied to the Phoenix, correct? agent, FBI agent’s opinion but of the only A. That’s one. Sarivola’s character. We find no error. Q. is, That's one. Another one he told 9. ADMISSION OF OPINION OF GUILT Riggs neighbors he would talk to in the morning, you but found out he didn’t talk During the cross-examination of the in- neighbors afternoon; until the cor- vestigating detective, defense in- counsel rect? quired why thought as to the defendant had committed the murder and the basis of A. neighbors. He did not talk to He opinion. The defense counsel first read neighbor. talked to a from a treatise on the Fundamentals of Q. neighbor. Talked to a And for those Investigation. Criminal inconsistencies, two you considered this Q. [By Koopman]: Mr. hy- “The best man a murderer of stepchild, his and potheses objectively must be tested and therefore, prove guilty; set out to him rejected modified or contrary when evi- that correct? dence is uncovered. investigator No, A. sir. There’s much more it permit must not his observations and in- than that. terpretations to be biased in favor of the Well, Q. you didn’t have much more on hypotheses.” September point the 16th. At that you Would like to read? time, autopsy hadn’t been done? [By No, A. Mark sir. Jones]: A. I purchased knew that he had an Q. Okay. your Do understand what weapon. extra barrel for his Mr. saying O’Hara is in that statement? Q. Okay. Yes, sir, A. I do. A. I telling knew that he was us that he Q. your agree Do with that statement? gun buy bread, had sold a milk and Yes, A. I do. fact, 17th, and in on the we found out Q. fact, And in would it say be fair to , gun that he used that to trade for an type that that investigation of criminal weapon. extra barrel for that technique warning you warns not to al- Q. $20, And correct? low a bias toward suspect interfere Yes, sir, A. he did your receive investigation? $20. with that, also, you Haven’t learned in other examination, On redirect the detec courses, investigative in other courses tive if any was asked he had other evidence

throughout your career? opinion. on which he based Defense Yes, A. sir. objected, counsel objection but was Q. 16th, September just But on overruled. The trial court ruled that coun shortly body after the of little Jeneane “opened sel had regarding door” found, you put your Hunt was it in mind suspected reasons the detective the defen that this man was the killer of that little dant, and the information relied on in form girl; correct? ing opinion. Defendant now contends Yes, sir, A. I knew he was. improper prejudicial that it was for the Q. You he knew was? testify detective to opinion as to his or Yes, A. sir. suspicion guilt defendant, or in

254 not been testimony hearsay. aggravating circumstance has the alternative the agree. unconstitutionally We do not defined broad vague manner. any On rebuttal the state offer com- Ortiz, State v. 131 639 Ariz. P.2d directly petent replies to or evidence that denied, 1020, (1981), cert. Ortiz v. contradicts material evidence intro- State, 2259, 456 U.S. Moreover, by the we duced accused. as no error. We find have noted: defendant, Generally, by put- where THE DEATH PENALTY PROP- WAS ting testimony opens prop- on door to ERLY IMPOSED? rebuttal, complain if rebut- er cannot duty independently We re have the State, testimony, by the also tal offered aggravating view the existence miti prove tends to or reinforce the State’s gating to determine circumstances * * in chief *. case improperly penalty whether the death Kountz, Ariz. State impris imposed to life or should be reduced State v. Dow- (1972), (quoting Roscoe, onment. thard, Ariz.App. 413 P.2d denied, (1984), cert. 700 P.2d (1966)). find no error. We Arizona, 1094, 105 scoe Ro (1985); S.Ct. 85 L.Ed.2d 525 Penalty B. Issues Death Richmond, “CRUEL, . HEI- 1. ARE THE TERMS State, Richmond NOUS, OR DEPRAVED” VOID FOR VAGUENESS? that the terms Defendant contends guilty found of one count Defendant was heinous, depraved,” “especially cruel or are court degree murder. The trial first unconstitutionally vague. This court has 13-703(D), verdict, special A.R.S. found § “cruel, previously the stated that terms aggravating that the as an circumstance heinous, depraved,” or are not void especially murder committed in an cru- vagueness. el, heinous, depraved Finding manner. or rele objectively We have defined the sufficiently mitigating no circumstances if terms: murder is vant a “heinous” outweigh aggravating this substantial evil;” if “hatefully shockingly or “cruel” circumstance, trial sentenced the judge the pain especially in a “disposed inflict to death. wanton, or manner: insensate vindictive trial court Defendant contends that the sadistic;” by if “depraved” and “marked penalty by improperly imposed the death debasement, corruption, perversion or de aggravating the mur- finding as an factor Knapp, v. Ariz. terioration.” State 114 heinous, cruel, or especially de- der was 543, 704, (1977), cert. 531, 716 562 P.2d 13-703(F)(6) praved. A.R.S. establishes § denied, 1458, 908, 435 98 55 U.S. S.Ct. the fact aggravating as an circumstance (1978). Cruelty on 500 focuses L.Ed.2d murder that defendant commits a death, the sensations of the victim before cruel, heinous, depraved especially or man- the murderer’s depravity focuses on disjunc- are ner. These terms considered mind, of heinousness focuses state tive; presence of one of the the three com society’s of the murder as on view aggravating factors is an circumstance. To this murders. use pared other Correll, 468, 480, 148 Ariz. State v. 715 circumstance, the court aggravating trial (1986). 721, P.2d 733 is especially find murder must Lu State v. heinous, cruel, depraved. or Cruelty a. jan, 124 Ariz. P.2d 604 629 Cruelty is a murder God satisfy manifested standards We believe these “disposed pain in a wan especially to inflict Georgia, 446 U.S. 100 S.Ct. frey [v. ton, insensate, (1980) manner: sadis or vindictive 64 398 and that the L.Ed.2d ] Knapp, 531, 543, cruel, heinous, State depraved tic.” especially kneeling denied, the child on (1977), “theory” that “was cert. 562 P.2d her knees and she must Arizona, ground on Knapp v. (1978). Cruelty coming. in She was known it was have victim, suffering pain and of on one side of the head volves the then shot pri- including any suffered mental distress then the other.” Castaneda, Ariz. death. or to State made additional statements There were (1986); the Sarivolas where- by the Defendant to Ariz. 703 P.2d Bracy, 145 com- that he made the child in he stated Arizona, (1985), denied, Bracy v. cert. he sex on him and that mit an act of oral 88 L.Ed.2d U.S. S.Ct. raped her. distress, Thus, (1986) pain to suffer . were, statements The court finds such the time the must be conscious at victim however, Defendant, fact, made committed. If the evidence offense is independent corroboration there is no consciousness, the factor of inconclusive on relating to sexual miscon- the statements Gillies, 135 cruelty exist. cannot findings any of the duct from physical or the medical examiner evi- Arizona, Gillies produced dence at trial. 1059, 105 possibility of finds that the The court cruelty As to the trial court noted: exists but the evi- sexual misconduct evidence, and The court finds from the beyond a and not dence is inconclusive inferences to be drawn the reasonable doubt. reasonable evidence, that the crime was from to the De- The statements attributed Hunt and that Jeneane especially cruel miscon- regarding acts of sexual fendant physical pain and mental and suffered not, therefore, being considered duct are time of the crime. distress at the cruelty. Such statements on the issue Sarivola, Anthony told The Defendant are, however, being on the considered trial, who testified at witness the crime was commit- issue of whether killing stepdaughter prior depraved state of a heinous and ted with beg a little her and made her “choked original) (Emphasis mind. bit.” record, review of the Based on a Sarivola, The Defendant told Donna sup cruelty is presence find the we trial, testified at the also a witness who presented at trial. by evidence ported every last he “choked her until by the apparently was felt The fear that He also then shot her.” breath—and victim, anticipate that she could the fact “made her Donna Sarivola that he told being murdered after that she would be her”, her.” beg,” and “tortured “beat stepfather shows that this by her abused were The court finds the witnesses sadistic, sup and killing and was wanton did, in that the Defendant credible and finding cruelty. ports a fact, make such statements. independent corrobora- The court finds Depraved and b. Heinous state- respect part of the with tion by the Defendant. ments if it especially is heinous A murder evidence, including photo- shockingly Knapp, The trial “hatefully or evil.” ligature had been that the A mur graphs, show P.2d at 716. 114 Ariz. at debasement, Hunt’s neck loosely Jeneane by tied around if “marked depraved der is found. body it was on the when deterioration.” perversion and was corruption, ligature mother testified at 716. The child’s Ariz. at 562 P.2d Knapp, a worn to cloth from focus appeared “depraved” similar and terms “heinous” The of mind at the out towel. defendant’s state upon a offense, by his as reflected in time of the cruelty exists Additional evidence Summerlin, 138 and acts. made a words The Defendant trial record. (1983). his Ariz. mother of to the child’s statement This victim, court has set forth five helpless factors to killed a reprehen- and as consider in the determination of the be, exist- sible as this spe- also violated the depraved ence of heinous or conduct: parental relationship. cial relishing 1. by murder the defen- As the trial court noted: dant; The court finds from the evidence and gratuitous 2. the infliction of violence the reasonable inferences to be drawn on the beyond victim that necessary the evidence that from the Defendant kill; acted with an especially heinous and de-

3. mutilation of the body; victim’s praved state of mind. crime; 4. the senselessness of the. The Anthony statements made to Sari- helplessness of the victim. vola and to Donna Sarivola reveal the Gretzler, Defendants state of 42, 52-53, mind. State v. 135 Ariz. 1, 11-12, denied, P.2d cert. Gretzler v. The Anthony Defendant told Sarivola

Arizona, 461 U.S. 103 S.Ct. that he “hated” Jeneane and he referred L.Ed.2d 1327 fucking to her as a “little bitch.” Arizona, rape year old child are circumstances that lead praved killing and the entire nature of the attack are Abduction, elements of a heinous crime and a de- This court has also stated that only and murder of a repugnant strangulation Roscoe, state of mind are one conclusion. The senseless violent sexual to civilized of a young girl: helpless present. society. penetration Roscoe in the seven committed. These were statements of a man who not—show a state of beg, choking ingly breath—whether that, fendant to the Sarivolas sex, The The Defendant ^[*] bragging rape, “I evil and marked other statements made want ^[*] torture, ^[*] her until go piss they relishing told Donna Sarivola beating, making her mind ^[*] all occurred or relating on her that is shock- the crime he debasement. every ^[*] grave.” the De- to oral ^[*] last

Similarly, killing elderly in the considering the senselessness of the woman we stated: helplessness crime and the of the victim special the Court has considered the rela- years

The victim in this case was 78 tionship parental trust capabilities old. She had limited of sacred which mental step- easily manipulated. and was was violated. The victim was the She was helpless appellant. daughter of the Defendant. the hands of He She was accomplished only years could have whatever crimi- eleven old. Found after three goals killing days weighed nal her____ he desired without in the desert she less than by sexually

We find that as- ninety pounds. She a child under saulting Duggan Winifred and senseless- parental capable manipu- control and her, ly killing knowing full well lation the Defendant. He took her to age of her limited virtue advanced and an area isolated desert where she could capabilities easy prey, mental she was heard, not be would have less chance of shockingly appellant demonstrated a evil escape, subject to his com- and would be corrupt of mind. state plete posed no threat to the control. She help- Defendant at time. She was 63, 69-70, Ariz. Zaragoza, v. 135 659 State easy prey. He could have less. She was 22, 28-29, denied, Zaragoza P.2d cert. v. accomplished any goals of his without 3097, Arizona, 77 462 U.S. 103 S.Ct. killing her. (1983). L.Ed.2d 1356 statutory aggravating supports believe the record the We find that the We present uphold findings depraved of heinous or conduct circumstances are to senselessly propriety the case us. of the death sentence. before Defendant

257 independently OF THE this court will review the 3. VOIR DIRE EXAMINATION TRIAL JUDGE findings they supported to determine if are record, by the and not based on bias and case, In defendant ar the instant prejudice. Jeffers, State v. 135 Ariz. at gues penalty death stat Arizona 1129. Defendant has no 661 P.2d at 13-703, ute, A.R.S. violates the constitu § right constitutional to conduct a voir dire right process to due because it fails tional provide dire of the trial judge. to for voir examination of the trial judge possible prejudice so that bias or intelligently a defendant can exercise his IS ARIZONA’S DEATH PENALTY

peremptory challenge for cause. IT UNCONSTITUTIONAL BECAUSE general propositions of Several law run REQUIRES THE IMPOSITION OF contrary to the defendant’s claim. At the DEATH PENALTY WHEN ONE AG- outset, judge presumed fair. is to be EX- CIRCUMSTANCE GRAVATING Perkins, 278, 286, 141 Ariz. State v. MITI- ISTS AND THERE ARE NO (1984). Secondly, P.2d as this GATING FACTORS? in a case an accused court has stated where Arizona, under A.R.S. right claimed it was his fundamental to 13-703(E), impose a the trial court must approve § judge: if sentence of death it finds the existence While defendant a criminal case statutory aggravating factor and one entitled, right, as a constitutional to any mitigat (and does not find the existence of impartial independent) judge, an entitled, right, ing leniency. is not as a matter of factor sufficient to call for any particular judge, or a constitutional 13-703(E) if Under a case involves one § (citations right change judge, to a aggravat or more of seven enumerated omitted). ing mitigating circumstances and no cir Reid, 114 Ariz. 559 P.2d State sufficiently cumstances substantial (1976), denied, Ari cert. Reid v. leniency call for then the trial court is zona, 431 U.S. 97 S.Ct. required impose a sentence of death. (1977). L.Ed.2d 234 63, 69, Zaragoza, 135 Ariz. preju- definition This court’s of bias denied, Ari Zaragoza cert. ap- dice further enunciates the standard zona, plied judicial disqualification: L.Ed.2d 1356 prejudice Bias and means a hostile feel- that the Defendant contends statute ill-will, ing spirit of undue friend- or or unconstitutional if the court finds favoritism, ship or towards one of the aggravating circumstance and no miti- litigants. judge may The fact that a circumstance, the court must gating then opinion have an as to the merits impose penalty. death We do not strong feeling type or a cause about agree. As we have noted State v. Bea- involved, litigation does not make judge prejudiced. ty, biased (1988), ele- the statute reduces the human 79, 86, 570 P.2d Myers, penalty imposition ment in the of the death Myers constitutionality doing so saves the Arizona, of the statute. Under the statute defen- dant will stand the same chance of receiv- claim is not the same as the Defendant’s judge ing penalty the death from a who right jury. judge A is not the to voir dire philosophically in the death does not believe prospective juror may quantity unknown judge Furthermore, penalty fair and as from a who does. Id. right to a be. protected impartial adequately 247, is By applying tribunal P.2d at 534. 762 Procedure by Arizona Rules of Criminal penalty only to those who come un- death 10.2, change of which allow for a 10.1 and statute, penalty is re- der the the death judge. only for crimes and those criminals served by legislature intended to be covered mandatory is Finally, the fact that there find no error. the statute. We appeal in death sentence cases insures 258 quires jury DEATH trial held on the

5. IS ARIZONA’S PENALTY that a BE- STATUTE UNCONSTITUTIONAL question of the existence or non-existence INADEQUATE CAUSE STANDARDS aggravating mitigating of both factors. BY TRIAL ARE UTILIZED COURTS jury trial is It is further asserted that a IN BALANCING AGGRAVATING constitutionally required the issue of the on MITI- CIRCUMSTANCES AGAINST death sentence. CIRCUMSTANCES? GATING previously disposed of this We have Arizona, Defendant contends that in Correll, 148 Ariz. at question. State v. penalty imposed wantonly, death is aribi 483-84, find no 715 P.2d at 736-37. We freakishly no ascertain trarily and error. provided for the sen able standards are tencing authority to measure the relative aggravating weights given to be 8. PROPORTIONALITY REVIEW mitigating factors have been found which examine the cases to deter- We must also rejected This contention has been to exist. imposed proportion- if the sentence is mine gener this court. See times numerous imposed in Ari- penalties al to other death Gretzler, 42, 53-54, ally, v. State 135 so, jurisdictions. doing other denied, zona and cert. Gretzler v. 1, 12-13, P.2d 659

Arizona, 971, 2444, keep penal- in mind that the death we must 461 103 S.Ct. 77 U.S. Greenawalt, v. (1983); State ty applied only 1327 certain cases of first L.Ed.2d 828, 853, cert. 150, 175, 624 P.2d 128 Ariz. degree murder. Arizona, denied, v. 454 Greenawalt U.S. legislature made it clear that The has 364, (1981); 882, 70 L.Ed.2d S.Ct. imposed in penalty the death is not to be Mata, 241-42, 233, v. 125 Ariz. State degree The every case of first murder. denied, Mata v. Ari 48, 56-57, cert. P.2d penalty is reserved for those cases death zona, 101 S.Ct. 449 U.S. the crime the manner which where (1980). We find no error. L.Ed.2d the norm committed raises it above . murders, degree or the back- of first DEATH PENALTY 6. IS ARIZONA’S places the de- ground of the defendant BE- STATUTE UNCONSTITUTIONAL degree the norm of first fendant above IT THE BURDEN OF CAUSE SHIFTS murderers. MITIGATING PROOF REGARDING TO THE DEFEN- Blazak, 598, 604, CIRCUMSTANCES 131 Ariz. DANT? denied, cert. Blazak v. Ari zona, 103 S.Ct. Arizona, contends that Defendant (1982). because it penalty death is unconstitutional proof impermissibly shifts burden proportionality conduct a review We also to de regarding mitigating circumstances imposi whether the in order to determine rejected has also fendant. This issue been penalty in this case vio of the death tion this court. State times numerous question eighth lates the amendment. Correll, 468, 483, 715 P.2d 148 Ariz. of death are the sentences is “whether Smith, (1986); 125 Ariz. State penalty to the disproportionate excessive find no We 610 P.2d cases, considering both imposed similar error. v. LaG the crime and defendant.” State 563, 579, rand, 734 P.2d 153 Ariz. DEATH PENALTY IS ARIZONA’S denied, Arizona, cert. LaGrand BE- STATUTE UNCONSTITUTIONAL U.S. 98 L.Ed.2d 158 DEFEN- IT VIOLATES CAUSE Bracy, (1987); AMENDMENT DANT’S SIXTH (1985), Bra THE A TRIAL ON RIGHT TO JURY Arizona, 1110, 106 cy v. OF THE SENTENCE ISSUE OF DEATH? Castaneda, 150 v. State A similar case is amend- that the sixth Defendant asserts 382, (1986), defen- re- 1 where Ariz. 724 P.2d the United States Constitution ment of

259 (1983) (insufficient sexually dant abducted and assaulted two 665 P.2d 70 evidence twelve-year-old boys, killing one that defendant intended to kill victim later who car); and locked in the victims. This was beaten trunk of court found that Graham, v. 209, State 135 Ariz. 660 P.2d especially murder was committed in an cru (1983) (substantial impairment 460 mental el, heinous, depraved manner, and and that addiction, drug neurological prob- due to penalty properly imposed. the death was lems, damage; vulnerability and brain Castaneda, 395, at 724 P.2d Like at 14. violence); influence; prior lack of record of Roscoe, wise, v. 212, in State 145 Ariz. 700 Valencia, 248, State v. 132 Ariz. 645 P.2d denied, (1984), cert. v. 1312 Roscoe P.2d (1982) defendant); State v. (youth 239 Arizona, 1094, 2169, 471 U.S. 105 85 Watson, 60, (1981) 129 Ariz. 628 P.2d 943 (1985), abducted, L.Ed.2d 525 defendant (change goals of character and while in assaulted, sexually strangled help a defendant; prison; youth of murder oc- seven-year-old girl. less This court found begun by curred as a result of shootout espe that the murder was committed in an Brookover, victim); 38, State v. 124 Ariz. cruel, heinous, cially depraved manner (1979) (substantial 601 P.2d 1322 mental penalty properly and that the death was impairment lesion). due to brain The facts Roscoe, 226-227, imposed. Ariz: 145 700 in the instant are not case similar to these also, P.2d at 1326-1327. See v. State Or cases penalty where we reduced the from tiz, 195, 208, 1020, 1027, 131 Ariz. 639 P.2d imprisonment. death to life denied, Arizona, cert. Ortiz v. 456 U.S. 984, 2259, (1982) 102 S.Ct. Based on our of other deci review (death penalty court, upheld where in sions of this we believe that multiple flicted stab wounds in the neck circumstances of this murder indicate that pour degree and chest areas of the it is above the norm of first mur victim before Blazak, 598, See State v. ing gasoline it). ders. igniting on her and 131 Ariz. Most denied, 604, 694, 700, cert. Blazak recently, the 643 P.2d penalty death affirmed in Arizona, 882, 184, v. Beaty, State v. 247, 459 U.S. 103 S.Ct. 74 158 Ariz. at 762 P.2d at (1982). (1988), imposi L.Ed.2d 149 We find that involving the sexual assault and penalty proportional tion of the death murder of a thirteen-year-old girl. We penalties imposed in similar cases following have also considered the similar this state. penalty cases which we found the death Clabourne, State v. properly imposed: making independent In addition to 335, 347-48, (1984); Ariz. 690 P.2d 66-67 propriety determination of the of the death Gillies, State v. 564, 570, Ariz. Arizona, sentence court also con denied, (1984), cert. P.2d Gillies v. proportionality ducts a to determine review

Arizona, 470 U.S. 105 S.Ct. 84 whether the sentence of death is excessive Summerlin, (1985); v. State L.Ed.2d 834 disportortionate penalties imposed or to the 426, 436, 138 Ariz. jurisdictions. in similar in other cases In each of these cases the defendant both Richmond, 186, 196, State v. sexually assaulted and murdered the vic denied, cert. Richmond tim, properly penal received the death Arizona, v. 433 U.S. 97 S.Ct. ty upon finding based of one or more of aggravating circumstances. We believe that the defendant’s sentence Additionally, we considered cases is similar to the sentences received have oth penalty reduced to er for similar where the death defendants crimes committed generally, this court. See State minors. See against imprisonment life Johnson, Morales, 147 Ariz. 710 P.2d 1050 32 Ohio St.3d 513 N.E.2d denied, (1987) cert. Morales v. (1985) (defendant grave did not create risk 276-277 danger to others or commit murder Ohio, 484 U.S. Simants, cruel, (1988); State depraved manner and no L.Ed.2d 871 heinous aggravating 250 N.W.2d other circumstances were Neb. Nebraska, McDaniel, Simants

present); 260

878, 231, (1977), errors, 98 S.Ct. 54 L.Ed.2d 158 pro- fessional the result of the 898, Loyd, State v. (La.1986), different,” ceeding 489 So.2d 906 would have been the stay granted, Lee, (1984), cert. 491 1348 State v. prejudice requirement. So.2d 142 Louisiana, denied, Loyd 1042, 210, 214, 153, (1984) 481 U.S. Ariz. 689 P.2d 157 1984, (1987); 107 95 L.Ed.2d 823 S.Ct. Washington, Strickland v. (quoting 466 State, Davis 477 889, 668, 698, 2052, 2068, N.E.2d 900-901 U.S. 104 S.Ct. 80 denied, Indiana, (Ind.), cert. Davis v. 474 674, (1984) 698, (applied L.Ed.2d retroac- 1014, Watson, 106 88 L.Ed.2d 475 S.Ct. to cases after State v. tively State, (1985); Adams v. 412 So.2d (1982)). (Fla.), Adams v. 855-857 Salazar, State v. 146 Ariz. Florida, 459 U.S. (1985). As we noted in State P.2d In each these cases Beaty, Ariz. at 762 P.2d at 536 the victims were children who either were deciding claim, in an ineffectiveness sexually cruelly during assaulted or beaten approach inquiry this court need not in the crime, perpetration of the and in each specific prongs a order or address both imposed. penalty case the death was We inquiry if the defendant makes an in- disposition find in that the the instant case Salazar, showing sufficient on one. disproportionate not sentences oth Ariz. at 707 P.2d at 945. capital jurisdictions involving er cases particular, In a court need not determine the death of children. performance whether counsel’s was defi- examining prejudice cient suf- before C. Post-Trial Issues by the as of the fered a result INEFFECTIVE ASSISTANCE OF alleged object deficiencies. The of an COUNSEL grade claim is not ineffectiveness in- Defendant contends that he received performance. counsel’s it is easier to If assistance of counsel in the fail- effective dispose on the of an ineffectiveness claim object ure of counsel to to various eviden- ground prejudice, lack of sufficient tiary rulings resulting Specif- with waiver. so, expect which we will often be that ically, defendant contends his counsel course should be followed. Courts failed to move to strike the character evi- to ensure that ineffective- should strive including testimony of the defen- dence so burdensome to ness claims become wife, relationship dant’s with his evidence defense counsel that the entire criminal persons thought the defendant that other justice system suffers as a result. crime, and the failure to had committed Washington, 466 U.S. at Strickland v. object to evidence submitted as defen- 104 S.Ct. at 2069. prison being reputation dant’s un- apply In the instant case we challenges Defendant also truthful. prejudice component Assuming first. that objection of evidence over allowance performance counsel’s was ineffective prior felony conviction and had he had considering totality be evidence imprisoned. been jury, fore the we do not believe counsel’s have stated: As we alleged errors the allowance evidence deciding trial counsel was whether as to defendant’s character have affected such ineffective- ineffective and whether State v. Nir proceeding. the result of the trial, a new this court ness warrants schel, P.2d 155 Ariz. (1) coun- applies two-pronged test: was find no error. We under all performance reasonable sel’s circumstances, i.e. it deficient? Holding D. Nash, the record for funda- (1985) tried or We have reviewed (applying to cases 13-4035, January pursuant to A.R.S. appeal on or after mental error pending on § California, there a “reasonable Anders v. 1985), (2) and unpro- probability (1967) for counsel’s but

261 Leon, conclusion, 297, cited v. support 451 P.2d 878 To we four case, We find none. federal circuit cases and one Arizona holding confession all that where a second judgment The conviction and of death is received, improper properly admis- affirmed. confession harmless sion of an earlier error. GORDON, C.J., FELDMAN, V.C.J., MOELLER, JJ.,

and HOLOHAN and reconsideration, In his motion for how- concur. ever, pointed correctly the defendant out upon support the cases relied we SUPPLEMENTAL OPINION analysis our harmless error not cases were the first confession was a coerced which MOELLER, Justice. confession in violation of defendant’s fifth Following opinion issuance of our in this Instead, rights. amendment these cases case, for reconsidera- the defendant moved confessions obtained violation involved tion. The motion contends: of defendant’s Miranda rights. precludes 1. Federal constitutional law authority There is an unbroken line of holding this court from Fulminante’s that, supporting although the rule the re Sarivola, Anthony coerced confession to ceipt a confession obtained in violation error; government agent, to be harmless harmless, of Miranda the harmless assuming 2. Even a coerced confession apply does not to coerced error doctrine harmless, may properly be declared See, Arizona, e.g., Mincey v. confessions. analysis court’s harmless error was incor- 2408, 2416, 437 U.S. 98 S.Ct. 57 rect; (1978); Chapman v. 290, L.Ed.2d 303-04 by concluding 3. We erred that the sec- 8, California, 386 U.S. 18, 23 n. 87 S.Ct. poison- ond confession was not fruit of the 824, 8, 705, n. 17 L.Ed.2d 710 n. 8 tree; ous Denno, 378 U.S. (1967); Jackson v. by rejecting 4. We erred defendant’s in- 1774, 1780, 12 L.Ed.2d 84 S.Ct. claim; assistance of counsel effective Arkansas, (1964); Payne v. by declaring erred Arizona’s 5. We 850, 2 L.Ed.2d 78 S.Ct. constitutional; penalty death statute Dugger, (1958); Miller 838 F.2d denied, Cir.), cert. (11th n. 10 analysis erred in our of the statu- We — U.S.-, 100 L.Ed.2d tory aggravating “espe- circumstance of Kelly, (1988); Johnstone 808 F.2d cruel, depraved”; cially heinous and Cir.1986), (2d propor- improperly 7. We conducted our 928, 107 S.Ct. tionality review. Parias, v. De (1987); United States find no merit We Cir.1986); (11th Williams F.2d raised in the motion for reconsidera issues (5th Maggio, 727 F.2d Cir. original opin In our except tion the first. Davis, 1984); United States ion, concluded that the state had not we see also W. (D.C.Cir.1979); La 695-96 prima Fulminante’s facie show overcome Israel, Procedure 277 Fave & J. 3 Criminal original ing of the involuntariness of Kamisar, Israel, (1984); LaFave & J. Y. W. Sarivola, and, therefore, confession 849; Project: Procedure Modern Criminal should have been statement to Sarivola Pro Eighth Annual Review Criminal later, However, suppressed. we held Supreme States Court cedure: United similar, explicit and more confession 1977-78, Appeals and Court of 67 Geo.L.J. poison not fruit of the Donna Sarivola was tree, properly admit ous and as such was urges ignore these cases us to state Thus, any error in concluded that ted. we cases, to a other and instead refers us few confession the admission of the Sarivola persuade us that a coerced none of which beyond a reasonable doubt. was harmless confession can be harmless error.1 It is life in jeopardy would be if he did not law, clear that federal in- agree. constitutional as confess. We pronounced, terpreted, and applied by the 161 Ariz. at 778 P.2d at 608. Supreme United States Court and other Thus, clear, it is already and we have compels federal courts us to conclude that held, expressly that the confession was ob- receipt original the of the coerced confes- tained as a direct result of coer- extreme may sion not be considered harmless error. cion and was tendered in the that the belief supplemental opinion The dissent to this jeopardy defendant’s life if was he did urges may that coerced confessions some- not confess. This is a true coerced confes- times be considered harmless error.2 The every sion in sense of the word. See Ore- dissent, however, concedes that three deci- Elstad, gon 105 S.Ct. Supreme sions of the United States Court (im- (1985) 84 L.Ed.2d Jackson, (Mincey, Payne) “have actu- plicitly recognizing coercion exist ally held that the admission of coerced con- police any where use “deliberate means fessions cannot be considered harmless er- will,” calculated to suspect’s break the Supplemental opinion ror.” physical impair- even absent violence or (Cameron, J., dissenting). P.2d at The ment). Therefore, we believe that arewe dissent, nevertheless, argues that because compelled reject argument that its egregious those cases involve facts more admission was mere harmless error. presented case, by today’s than those law, Supreme The as declared Supreme might words of the Court not Court, analysis is that a harmless error is apply agree. here. We cannot inapplicable to coerced confessions. A con- argument government agent dissent’s is based on the fession extracted promise protection view that the coerced confession here is “at return for a from most, surreptitiously prisoners a confession violence at hands of other obtained through undoubtedly a coerced an informant.” confession. There- Id. at fore, Supreme until and unless the P.2d at 633. Court We believe that is a mischar- law, changes the we order must acterization of the coerced confession in- retried without the use of the coerced con- original opinion volved this case. As the fession. points in this case out:

Defendant contends that because was Therefore, the defendant’s conviction and alleged murderer, child he was in dan- aside, sentence are set and this case is ger physical harm at the hands of remanded for a new trial without the use other inmates. Sarivola was aware that original coerced confession. Of possibility defendant faced the of retribu- course, supplemental opinion this does not inmates, from tion other and that re- preclude the use of defendant’s second con- respect turn for the confession to fession, with original since we adhere to our murder, pro- the victim’s Sarivola would poison- it view that was the fruit of the tect him. the defendant main- single point Moreover ous tree. Other than the dis- promise that Sarivola’s “ex- supplemental opinion, tains cussed in this all oth- tremely aspects original coercive” the “obvious” opinion er of-the remain promise inference from the intact. Wainwright,

1. The state did refer us to one case that held 2. The dissent cites Milton v. applied the harmless error doctrine confessions; however, recog- that court coerced support proposition that the harmless error weight authority contrary nized the position, to its non-brutal, analysis applies non-egregious contrary but contended that the au- However, coerced cases. confession fact is thority necessarily per did not establish a se that Milton was decided on sixth amendment- Owen, (7th F.2d rule. Harrison v. principles, Massiah to which the harmless error Cir.1982). holding is not Because the in Owen Thus, applies. inapposite. rule Milton is by legitimate authority supported and does not own, analysis provide of its we do not consider persuasive. it GORDON, C.J., FELDMAN, per admission of coerced confession is V.C.J., concur. se harmful and therefore reversible. case,

HOLOHAN, J., In the majority instant has stat- participated in this ed prior filing matter but retired that the erroneous admission of defen- to the supplemental opinion. Sarivola, of this dant’s first confession to which involuntary, was held to be cannot con- CORCORAN, J., participate did not majority sidered harmless error. The in the determination of this matter. states, “there is an unbroken line of au- CAMERON, Justice, dissenting. thority supporting the rule that ... I dissent. I believe harmless error harmless error apply doctrine does not applied doctrine can be in this case. Admit- support coerced confessions.” To this tedly, change this view is a previ- from a proposition, majority cites United ously position. believe, however, held I Supreme States Court and other federal changes that in the law now allow the cases. error applied harmless doctrine to be majority The federal cases cited coerced but reliable confessions. authority ruling. are not sound for its Mil At the Chapman time of California, v. 1530, 1535-37(11th Dugger, ler v. 838 F.2d 18, 824, 386 U.S. 87 S.Ct. 17 L.Ed.2d 705 — Cir.), U.S.-, cert. 108 S.Ct. (1967), Harrington and California, 395 2832, (1988), 100 L.Ed.2d 933 involved 250, 1726, U.S. 87 S.Ct. 23 L.Ed.2d 284 confession obtained in violation of Mi (1969), leading Supreme two United States randa, not a coerced confession. The rule, Court exclusionary cases on the it was court Miller held that the defendant’s generally given assumed that confessions voluntary. confession was Johnstone in violation of subject Miranda were to the 214, (2d Cir.1986), Kelly, 808 F.2d 218 cert. harmless error doctrine. The same could denied, 928, 3212, 482 U.S. 107 S.Ct. not be said for coerced confessions. (1987), improp L.Ed.2d 699 held that it was The introduction involuntary apply er to a harmless analysis error to a coerced clearly confessions calls for auto- right self-representation. denial of the regardless matic reversal of the amount dicta, merely the court Payne cited of other evidence indicating guilt____ Arkansas, 560, 356 U.S. 78 S.Ct. Supreme ... The Court has settled it (1958), proposition for the that as the involuntary law that confessions apply harmless error does not to coerced call for automatic reversal because the Parias, confessions. United States v. De right testify against not to be forced to (11th Cir.1986), 805 F.2d one’s self is “basic ato fair trial.” The denied, States, Ramirez v. United may Court have been concerned about U.S. 107 S.Ct. 96 L.Ed.2d 678 the likelihood that an accused make (1987), was not a coerced confession case escape an untrue confession in order to either. The court found the confession to physical mental or abuse at the hands of voluntary, but dicta cited Mincey v. interrogators. likely It is authority Arizona as that harmless error confessions, felt that coerced Court al- apply does not to coerced confessions. unreliable, though extremely could have Maggio, Williams v. 727 F.2d 1389- a determinative effect on the minds of (5th Cir.1984), only involved a claim that jurors, and thus felt it the safer rule involuntary, the confession was which the cases, require reversal in all rather unsupported by any court found to be evi concerning quan- than fine lines draw too, dence. Here court cited dicta necessary tum of additional evidence Denno, Jackson v. 378 U.S. 84 the error render “harmless.” (1964), Mincey Osborne, Arizona, Cameron & Er- When Harmless Harmless, authority

ror Isn’t 1971 LAW & SOC. L.Ed.2d 290 as that harm time, however, ORD. 29-30. At this I apply less error does not to coerced confes question assumption Davis, the blanket Finally, that the sions. in United States v. (D.C.Cir.1979), get 695-96 hospital. to a Jackson in- Id. made

court in Mincey dicta referred to criminating Jack- statements to a detective and holding as son that a coerced confession demerol, hospital personnel gave then him require found, would reversal. The court analgesic sedative, scopolamine, however, question the confession in drug dry up used to mouth secretion given. voluntarily preparation surgery. Id. at S.Ct. at 1778. Police continued to interro- Thus, given support, of the citations as gate though by him even this time Jackson only actually three have held that the ad- point had lost 500 cc. of blood. Id. At one mission of coerced confessions cannot be said, “Look, on;” go Jackson I can’t how- Mincey, considered harmless error. ever, police question continued to him. Id. 2416; Jackson, U.S. at 98 S.Ct. at questioning, op- An hour after the 376-77, doctors 1780-81; Payne, U.S. at 84 S.Ct. at 371-72, erated on him. Id. at 84 S.Ct. at S.Ct. at 850. Of these 1778. The cases, Court reversed the denial of only three Mincey post-Chap- is a corpus petition man, defendant’s habeas and re- post-Miranda All case. of these manded the case to the district court to cases involved confessions obtained under allow the state a circumstances that in reasonable time to afford resulted the defen- weakened, hearing him a being physi- dant in a on the voluntariness of his vulnerable police using cal condition and the confession or a new trial. at coercive Id. pressure through interrogation recognized intensive to S.Ct. at 1788. The Court that interpreted elicit a confession. the facts could to find that be the confession was coerced a result of as case, Payne, In a pre-Chapman a “men- police the tactics. at 84 S.Ct. at Id. tally youth dull” was arrested for murder 1788. warrant, hearing without a denied a and right not informed of his to remain silent In Mincey, the defendant had unbearable right or his to counsel. U.S. at 78 pain leg, in in intensive care S.Ct. at 849-50. The defendant was held hospital depressed point and was to the of during days incommunicado for three Mincey, coma. 437 U.S. at 98 S.Ct. at family requested which members who lying 2416-17. The defendant was on his away see him were turned and he was back, tubes, needles, and encumbered permission phone refused to make a call. breathing apparatus. at Id. Id. at 78 S.Ct. at 848. The defendant clearly expressed at 2417. He his wish not twenty-five was denied food over hours interrogated. to be Id. When the detec- only given then and and two sandwiches began interrogation, the defendant tive again not fed for another fifteen hours. say “This is all I can without a wrote: police Id. at 78 S.Ct. at 848. The told lawyer.” Id. The detective continued the thirty forty people the defendant that interrogation despite Mincey’s pleas to waiting get outside to him. A were Id. stop.

police officer told the defendant that if he Moreover, complained several times try i make a confession he would would that he was confused or unable to think keep away from him. The the mob Id. clearly, or that he could answer more totality found that of Court accurately day. despite But the next particular- police this course of conduct and alone, Mincey’s entreaties to let be [De- violence, culminating ly the threat of mob interrogation Hust ceased the tective] had coerced and did the confession been only during Mincey intervals when lost “expression an of free not constitute consciousness or received medical treat- choice.” Id. at 78 S.Ct. at 850. ment, interruption after such each Jackson, relentlessly to his task. The pre-Miranda, pre-Chap- returned

In case, statements at issue were thus the result the defendant was involved man virtually questioning continuous of a gun police after he robbed a battle with 370-71, seriously painfully wounded man on at 84 S.Ct. at hotel clerk. U.S. twice, edge consciousness. managed shot but 1777. He was doubt); Owen, 400-01, Harrison v. Mincey, 437 at 98 S.Ct. at reasonable U.S. (7th Cir.1982) (admission of F.2d 138 invol by alleged police untary confession induced apparent that the Court said it was that “consideration” would representation prod- defendant’s statements were given to held to be harmless free and rational choice. “Due uct of his doubt); Cox, beyond Meade v. a reasonable requires statements process of law that Cir.1971) (4th (despite a be used in obtained as these were cannot record about the voluntari dispute trial.” any way against a defendant at his statement, court finds its ad ness of the 98 S.Ct. at 2418. Mincey, 437 U.S. error); harmless United mission to be these three “coerced confes- each of Follette, 425 F.2d Moore v. States ex rel. cases, physi- defendant was in a sion” Cir.1970), (2d condition, distraught police cally which by interrogating the de- advantage took (1970)(“While admission of the case where despite fendant the defendant’s indications can be improperly obtained confession he did not to make a statement want exceedingly considered harmless error is case, Supreme In each or confess. rare, one.”). this is recognized that coercion is more Court courts, court, including this have police brutality, than it can also result from the erroneous admission of involun- held interrogation a de- relentless inflicted on tary harmless error. confessions to be physically-weakened in a condition. fendant Castaneda, Jackson, stand Payne, Mincey Thus (admission (1986) of defendant’s types proposition for the these of vic- regarding statement whereabouts situations, by these confessions obtained by police telling defen- body tim’s induced that means amount to coerced confessions bring the site they his sister to dant would subject to are not admissible and are not body if tell them where the he refused to error doctrine. the harmless coercion, was, but may have amounted been, however, cases There have several state- failing suppress any error confessions, involving some- involuntary beyond a reasonable ment was harmless “coerced,” in times characterized as which Gibson, Ill.App.3d doubt); 109 People v. analy- applied courts have a harmless error (1982) 787, 316, 440 N.E.2d 339 64 Ill.Dec. These confessions were considered sis. giv- (defendant’s incriminating statements only in a technical sense and did coerced cellmate, government informant en to his egregious police methods or not involve the felon, im- a convicted were who was also “coer- brutality characteristic of the true admitted, in view of other properly but See, e.g., cion” cases. Milton v. Wain- only cumulative and the testimony, it was 2174, 371, 92 S.Ct. 33 wright, 407 U.S. State, harmless); Kelley v. 470 error was (1972)(assuming, arguendo, 1 that L.Ed.2d (even (Ind.1984) if the defen- 1322 N.E.2d by police posing officer confession obtained involuntary, rever- were dant’s statements in defen- person accused confined as an in the any error réquired not sal excluded, cell should have been dant’s challenged statements of the admission clearly any error in its revealed that record Ferkins, harmless); 116 People v. would be beyond a reason- was harmless admission (1986) (court 760, N.Y.S.2d 159 A.D.2d 497 doubt). able to be prove admissions finds state did also con- any courts have in their ad- voluntary, Federal circuit error however given in several cases. See the cumulative this issue harmless sidered mission was (8th Carter, statements); F.2d 487 v. John- v. 804 State States nature United (1983) 380, son, P.2d 950 Cir.1986)(assuming Wash.App. defendant’s statements 666 35 state- (admission written police detective of defendant’s involuntary because were coerced, ment, alleged had been thinking he was into that which defendant misled Dean, event); v. assault, State not a mur- was harmless for an being questioned (W.Va.1987)(confession in- 467 363 S.E.2d der, that their admission court concluded receiving psychiatric of beyond by promise error a duced was harmless into evidence 266 Cox, Cir.1982); Meade v. involuntary, 323

treatment considered its 438 F.2d but denied, (4th Cir.), 910, admission be- cert. into evidence was harmless 404 92 doubt). yond a (1971); reasonable United 30 S.Ct. Follette, ex rel. v. States Moore Payne, I recognize Jack authority denied, (2d Cir.), cert. 925 398 U.S. however, I Mincey; son do not find the (1970); 26 L.Ed.2d 550 90 S.Ct. regarding involuntary rule confessions to Johnson, v. 666 State Wash.App. 35 majority be as clear cut as the makes it See also Milton v. (1983). P.2d 950 Murphy, United v. appear. See States 763 Wainwright, 407 U.S. 92 S.Ct. denied, (6th Cir.1985), cert. F.2d 208 (1972); United States 33 L.Ed.2d States, v. United 474 U.S. Stauffer Cir.1985), (6th Murphy, 763 F.2d 202 (1986) (“The L.Ed.2d 1063, 106 S.Ct. 474 U.S. Supreme squarely has not addressed Court (1986); State Cas of an the issue of whether admission invol taneda, 382, untary confession be harmless since Chapman holding v. Cali The standard for review such cases its landmark fornia, as in cases error of the same other “ L.Ed.2d a federal constitu magnitude: ‘Failure to constitutional harmless.”). tional error can be held right a constitutional constitutes observe it error unless can be shown reversible Two courts have addressed issue beyond a the error was harmless involuntary induced confession some ex pt. 5, State Syl. reasonable doubt.’ type of the erroneous promise found Blair, 647, 214 rel. Grob 158 W.Va. admission the statements to be harmless (1975).” Syllabus point S.E.2d 330 Dean, error. an arson investi- — Bordenkircher, Maxey v. W.Va. gator investigated a fire in defendant’s -, S.E.2d YMCA. S.E.2d room the 469. preme Court ble because investigator’s promises to assist defendant Health Center admitted to ruled that in icide. get gator accompanied quiries on defendant’s dant was dant, (W.Va.1987). By interviewing the defen- We are aware of a Harrison subject Rose v. to this rule admissible merely duplicative of ever, v. several other getting psychiatric psychiatric California, L.Ed.2d Nonetheless, coerced Id. where depressed Clark, investigator the statements L.Ed.2d 460 him that He they had harmless error said: statements has been confession Owen, that error fires. agreed treatment ^[478] involuntary confession is defendant upon U.S. he been behalf. U.S. learned that defen- Id. treatment. West other to had been (1986); Chapman arrival, contemplating su- recognized, how- A rare of the accused. 18, 87 is not in the admission were help induced [570], 106 S.Ct. The trial court and made F.2d 138 analysis. to the Mental testimony or Virginia The defendant inadmissi- ordinarily exception involved investi- by the at Id. Carter, (7th See Su- in- would police promised “considerations ated with right less dant’s court cies” if defendant would called his surrender. in a sion, recognized that a harmless rating the defendant’s omitted). Eighth 138, coerced confessions. should not 804 F.2d 487 Carter, In Harrison v. I find the evidence killing beyond found that out with a incriminating statement was be Circuit an Dean, police told him (7th Cir.1982). police and told friend, incriminating given FBI apply only to certain Id. friend and the as a whole reasonable analysis 363 S.E.2d asked agent Upon signing his confes- be told to deal, persuasive. Owen, him later. for advice. 682 misled the defendant him he admission of defen- (8th they statements. United States defendant that the employed by the come forward and His friend but consideration doubt at 471 police corrobo- error Cir.1986). couldn’t testimony and lenien- The court Id. (footnote types of involved analysis light negoti- harm- Id. at come F.2d subject about the interrogation. (fifth of the He amendment not concerned “with mor- told the defendant investigat- that he was psychological al and pressures to confess various confession duct was coercive. The Court found that with the United interpretation in footnote one of Colorado all the cases it had The defendant Carter, 804 F.2d at 489 n. 3. When he invoked his ment was involuntary, the ting it was harmless. Id. The court noted: court held later used to investigating a murder. 804 F.2d at 489. ing This to Milton v. Wainwright, supra. tal analysis case. Such an have been harmless were deception, if the word “coerced” is read to include ^[475] tie In Flittie we said: “If the statements Connelly, Flittie v. (8th Cir.1985) (en banc), compulsion, meaning coerced, assault, found out the victim had be that even right tenable, as Solem, inappropriate [1025], (1986), impeach opposed gave of “coerced” is consistent although their admission could not to remain silent. Id. The extended would the harmless-error States cases where and would considered a false alibi that was is not to the 106 S.Ct. assuming error.” Ibid. Supreme he was physical which discusses reading credibility. error in the be police the state- contrary. contrary 944 & n. the last died, actually or men present of Flit- Court’s admit- Only con Id. harmless timony regarding defendant’s statements overwhelmingly established the defen dant’s mony. Accordingly, the court held that the tive, erroneous admission testimony in the jail and found the admission of the informant’s tes Dec. at dant’s confidence and statements from him. People 343-44. With his identity unknown to the might say regarding the murder. defendant, 322-23, on, was deliberately placed in defendant’s phy, cion, Ill.Dec. government informant, also a convicted fel applies harmless error analysis to confes- “pay sion where there was an element of coer- coercion.”); see also United States v. Mur- emanating from sources other than official A case similar 763 F.2d but no attention” to and the clear guilt 64 Ill.Dec. 64 Ill.Dec. at was asked beyond Gibson, error, the informant without the informant’s testi 440 N.E.2d at 343. The court police misconduct). 440 N.E.2d 339 evidence, case, a reasonable doubt. but in view of the other to the anything by police 791-92, elicited it was (6th Cir.1985)(court 440 N.E.2d at 344. Id. at Ill.App.3d taken present testimony gained the defendant 440 N.E.2d at incriminating only if he would together, cumula case is 64 111. defen Id. at Id. A A review of the fifty years case law mandates that involved defendants who were in court should look to the circumstances sur- physical weakened conditions and/or rounding involuntary subjected to confession. If intensive and police relentless the confession interrogation type was a result of the coercive tactics. The coercion in Payne, Court also noted in found footnote Jackson and Min- two that cey, then where there admission of the incriminating is causal connection “[e]ven police between statement will constitute misconduct and a defen reversible error. confession, If, however, dant’s it automatically involuntary does not confession is only sense, follow that there has been in a violation of the “coerced” a technical and is Due merely duplicative Process Clause.” Connelly, 479 U.S. of other testimony or 2; at 164 n. 107 S.Ct. at 520 n. defendant, see admissible statements of the Elstad, Oregon 105 then analysis a harmless error appropri- is (1985) L.Ed.2d ate.3 Additionally, if the record reveals holding Gibson, analysis 3. For cases People that harmless error Ill.App.3d appropriate involuntary is confession cases if (1982); Ill.Dec. 440 N.E.2d testimony the statement is cumulative of other State, Kelley (Ind. 470 N.E.2d against or evidence the defendant see Harrison 1984); Perkins, People v. 116 A.D.2d Owen, (7th Cir.1982); 682 F.2d (1986); Johnson, 497 N.Y.S.2d Cox, (4th Cir.1971); Meade v. overwhelming evidence of defendant’s mation as his confession Anthony Sarivo- guilt, any admitting error in such state- la. He told both of them that he killed his ments her, be considered harmless.4 stepdaughter, choked and made her beg for expressed her life. He also case, present The confession in the al- stepdaughter hatred for his to each of though involuntary, considered is not the telling Anthony them Sarivola he “hat- type of “coerced” confession found in ed” her and referred to the victim as a Payne, Mincey. Jackson and The record fucking by telling “little bitch” and Donna does any not reflect that defendant inwas “piss Sarivola he wanted to on her [the type of weakened condition he when con- grave.” victim’s] Although fessed to Sarivola. Sarivola was informant, paid FBI police he was not a This is also a case where the record intentionally place officer. Police did not overwhelming reflects evidence of defen- Rather, Sarivola in defendant’s cell. Sari- guilt. dant’s Defendant made inconsistent vola had heard rumors that defendant was concerning disap- statements the victim’s suspected killing a child and told his FBI pearance. good He said that he had a Only contact about it. then did FBI relationship with the victim and that she agent tell Sarivola to find out about the had been instructed in the of firearms. use rumor. The evidence does not indicate that Defendant’s wife contradicted these state- agent the FBI ever told Sarivola to offer by testifying poor ments that he had a protection to defendant or threaten him in relationship with the victim and that the any way divulge if defendant refused to defendant had never instructed the victim any information. The Arizona authorities in the use of firearms. The evidence indi- were not involved at this time. day report- cated that the before defendant disappearance, ed the victim’s he went to a subject did Sarivola not defendant to gun shop Mesa to trade his rifle for an coercive, interrogation. intensive de- While extra barrel for his .357 The revolver. might fendant have confided Sarivola evidence showed that the victim had been had known the information would be shot twice with a .357 revolver. Other on, passed Sarivola, voluntarily he did tell wounds, physical liga- evidence such as tones, in conversational the circumstances neck, motorcycle ture around the victim’s surrounding stepdaugh- the murder of his tracks location of crime scene “involuntary” ter. This confession to Sari- all linked defendant to the murder. type vola is not the of coerced confession egregious police found in the cases of con- evidence, together, taken established Supreme duct Court has addressed guilt beyond defendant’s a reasonable apply it refused when the harmless error doubt without the use of defendant’s con- most, doctrine. It was at a confession ob- Thus, light fession to Sarivola. of all surreptitiously through tained an infor- these facts and the of coercive absence mant. case, police I tactics this believe that the erroneous admission of defendant’s I invol- believe defendant’s “coerced” confes- untary confession to merely sion Sarivola was harmless cumulative to other admissi- beyond ble a reasonable doubt. The law does statements made the defendant. require justi- Defendant’s second confession to Donna not nor do the circumstances fy reversing ground. Sarivola contained much of the same infor- his conviction on this (1983); (6th Cir.1985) (massive Wash.App. 666 P.2d circumstantial Dean, (W.Va.1987). evidence); corroborating State v. 363 S.E.2d and United States ex Follette, (2d rel. Moore v. 425 F.2d holding analysis 4. For cases that harmless error confession, Cir.1970) (other corroborating testi- overwhelming appropriate light evi- mony covering every ele- from other witnesses guilt dence of the defendant’s see Milton v. crime, finding property ment of stolen 371, 372-73, Wainwright, 407 Castaneda, possession); defendant’s 2175-76, (1972) (three other con- 33 L.Ed.2d (1986) (positive Carter, fessions); United 804 F.2d States physical identification witness and evidence (8th Cir.1986) (six against witnesses defen- 490 dant); crime). connecting defendant to Murphy, United States case, Apart from the in this I find facts logic

no reason in or law to hold that a “coerced” confession can never be harm- It less. cannot be said that there will never be a case which facts are so over- whelming against a defendant that the er- beyond

ror is not harmless a reasonable doubt.

Further, ignore I do not believe we can applying exclusionary the cost of rule in this case. The “coercion” this case great. Comparing was not the costs and benefits, great the costs are too and the negligible. deciding

benefits Were I this independent grounds, case on state I be- excluding lieve the cost of the “coerced” great price pay confession is too meager benefit obtained. See Cameron Lustiger, Exclusionary & Rule: A Analysis, 101 F.R.D. 109 Cost-Benefit DUQUETTE Russell C. Karen Loften wife; Duquette, husband Systems, Scottsdale Memorial Health Inc., Hospi- Scottsdale Memorial d/b/a tal, Petitioners, SUPERIOR COURT of the of Ari-

zona, In and For the COUNTY OF MARICOPA, Honorable Mo- William T.

roney Stanley and Honorable Z. Good- farb, thereof, judges Respondent

Judges, LAMBERTY, al.,

Eric et Real

Parties in Interest. No. 1 88-192. CA-SA Arizona, Appeals Court 1, Department Division C. Aug.

Case Details

Case Name: State v. Fulminante

Court Name: Arizona Supreme Court

Date Published: Jul 11, 1989

Citation: 778 P.2d 602

Docket Number: CR-86-0053-AP

Court Abbreviation: Ariz.