*1 376 charged were required for a waiver is with which defendant was
What is, knowingly—that it serious, mandatory that be made thec extremely called for privi right of a or abandonment known and one- prison sentences of at least five lege—and that be intentional. State v. years, imposition of permitted fourth the LaGrand, Ariz. 733 152 P.2d sentences, seriously re- consecutive 1066, (1987)(citing Supe 1070 Montano v. parole eligibility—a of which stricted factor Court, Ariz. 719 rior 149 P.2d aware, though he defendant was well even (1986)); 18.1(b). Rule 278 We have of as to the exact date misinformed that previously held information concern eligibility. facts, question these Under necessary enhancement is not sentence rele- parole eligibility hardly of date is right waiver to secure a valid of the a jury. vant to the a decision waive LaGrand, 152 Ariz. at jury trial. 733 Therefore, waiv- we find defendant’s 1072; Hooper, P.2d at knowing, voluntary, er of a jury was 538, 549, 703 P.2d 493 cert. intelligent, his judge fulfilled denied, 106 S.Ct. 18.1(b). obligation under Rule See comports with of the Our view clear Butrick, at 911. 113 Ariz. at majority considering of courts the issue.4 trial pivotal determining Although stress the need for The consideration jury validity of a trial is the waiver infor- accuracy courts to assure the of requirement that the defendant understand they contem- provide mation defendants be facts case will deter plating right, we waiver of a constitutional by judge jury. mined a and not a United conclude the inadvertent misinforma- Rodriguez, 888 F.2d 527-28 States v. date concerning parole eligibility tion (7th Cir.1989); ex United States rel. jury not of a did render defendant’s waiver DeRobertis, 715 F.2d Williams v. Accordingly, trial ineffective. we vacate (7th Cir.1983), U.S. opinion appeals’ court and affirm L.Ed.2d defendant’s convictions and sentences. Schofield, 463 N.E.2d Commonwealth (Mass.1984). n. CAMERON, GORDON, C.J., and clearly that the record in this case shows CORCORAN, JJ., concur. MOELLER and carefully explained court to defendant that trial, that right jury by had to a abandoning waiving right he
privilege allowing jury to determine to let agreeing
the facts case and of his
trial the facts and deter court determine
mine his
innocence. We believe
guilt or
accomplish
required
this is all that is
Arizona, Appellee,
STATE of
right.
of a known
intentional waiver
view,
applies
In our
rule
the LaGrand
LAVERS, III, Appellant.
Alfred Edward
case;
present
knowledge
eligibility date “has
regarding parole
no
No. CR-89-0298-AP.
bearing
narrow issue of
on the
Arizona,
Supreme
Court
jury
judge
jury
or
since the waiver [of
En Banc.
parole date.
has no effect on”
trial]
LaGrand,
July
1991.
convicted,
1072.
If
whether
21, 1991.
Certiorari Denied Oct.
eligibility
parole
date
jury, defendant’s
fairly say
Nor
same.
can we
would be the
the decision (Supp.1990); 8A See, State, Md.App. §§ C.J.S. Juries e.g., Horsman (2d (1990) (sentencing § 23.03[2] is a conse- PRACTICE A.2d MOORE’S FEDERAL consequence guilty plea, 1991). quence of a ed trial); generally jury see to waive election
OPINION GORDON, Chief Justice. Lavers, (defendant)
Alfred Edward III appeals from his convictions and death sen degree tences for two counts of first mur jurisdiction der. We have of this automatic appeal pursuant to Ariz. Const. art. 5(3), 13-4031, -4033, and A.R.S. §§ -4035.
ISSUES PRESENTED appeal, On defendant raises the follow- ing issues: Whether the trial court by refusing erred as a matter of law cassette; (2) exclude the audio Wheth- er the trial court committed fundamental *5 by allowing prosecution error to convict successfully defendant and seek the death penalty upon allegation in I count of the alleged only indictment that the lesser cul- (3) pable “knowingly”; mental state of Whether trial court abused its discre- by denying request tion to ex- cuse, cause, prospective juror for who prior indicated that TV broadcasts concern- ing the case “would haunt mind” dur- [his] deliberations; (4) prosecu- Whether the could, relying upon specif- tion without tape, properly ic contents of the establish necessary admitting foundation for evidence; (5) tape in Whether murder qualify of Jennifer Bums can as a murder heinous, especially “in an committed cruel manner”; (6) depraved or Whether the murder of Jennifer Burns was committed Lavers, during Mary the murder of Mary whether the murder of Lavers was committed the murder of Jennifer Bums; (7) Mary Whether murder of “especially Lavers can be characterized as apparent cruel” when an motive for defen- dant’s last act was to forestall her further (8) suffering; Whether the trial court erred reducing discounting mitigating or impairment, factors of defendant’s mental intoxication, previous good citizenship; Woods, Gen., Atty. McMur- Grant Paul J. (9) mitigating circumstances Whether Counsel, die, Office, Atty. General’s Chief are, by defendant even if ever so evidenced Section, Maziarz, Appeals Joseph Crim. T. to call for slightly, sufficiently substantial Gen., Phoenix, Atty. appellee. for Asst. sentence; (10) leniency and a life Whether Jr., Phoenix, pro- George Sterling, ap- prosecutor for denied defendant due M. by honoring a routine in which cess of law pellant. a.m., apart- At a resident family’s about 1:15 wishes the murder victim’s prosecutor’s “very pounding” ment 1021 loud deciding factor” heard “the later penalty; and He called but to seek the death his front door. decision call after that defen- called and cancelled the the trial court’s order back Whether $18,797.60 deciding “pranksters” fu- had done pay dant restitution later, he pounding. or credit- One or two minutes expenses should be reduced neral door poli- moaning sound” outside the payments life insurance heard “a ed with from Lav- provided Mary again called 911. cies that defendant each Bums. We address ers and Jennifer Meanwhile, had returned defendant issues, them in do not address of these but stated, “[y]ou He Jennifer’s bedroom. presented by defendant. the same order as MARY.” When should have smart been was, Mary defendant asked where Jennifer PROCEDURAL FACTUAL AND responded, dying.” Defendant “[s]he’s BACKGROUND Mary apologized to told her he loved apartment 2021 of the Defendant lived her, “pushpng] it.” blamed her but Apartments Trail in Phoenix with Arabian stated, Mary dying," “I’m When wife, (Mary), and her elev- Mary his Lavers you Mary responded, are.” “I know When (Jen- daughter, Burns en-year-old Jennifer her, help defen- pleaded with defendant Jennie). approximately nifer At 1:00 bleeding just like responded, “[yjou’re dant defendant and a.m. on November hog, I so much.” While you a stuck love arguing. point, At Mary began some Jen- help Mary to ask for continued turned on apparently nifer a cassette complain pain experienc- about the she was *6 placed pillows and the recorder between ing, apologize to defendant continued During argument, defen- on her bed. the Mary Mary. to When asked wheth- blame refusing get into Mary dant to told Jennifer, re- had killed he er defendant do, “mak- bed as he ordered her to she was “[sjhe’s gone sponded, MARY.” might to ing a not “have mistake” she point, At defendant himself some armed very long.”1 live with promised to with a .22 caliber revolver and Mary Defendant confronted and Jennifer together.” myself go too we’ll “take out so prepared apartment. to leave they the Mary begged, “please don’t shoot When defendant, who then was armed When said, me,” gonna “I’m shoot not knife, asked, “[tjhink you,” with I’d hurt a Mary honey.” then asked you Defendant Mary she he stated that believed would get she him that she was up, to but told “[j]ust implored put him twice Jennifer to responded, paralyzed. you away the and won’t think will knife get up, you’re paralyzed, “[hjoney, any more.” said hurt us When Jennifer you're just lazy.” defendant, evidently something to he else Mary he Defendant told would look left the knife. cut her on the wrist with find When see if he could Jennifer. JENNIE, out, “JENNIE, Mary shouted bedroom, Mary, he told returned to the JENNIE, JENNIE, right,” it’s all as Jenni- Mary nowhere to be seen.” “JENNIE’S Mary in then fer cried. Defendant stabbed repeatedly begged defendant not to shoot back, severing nearly her the middle of her she her and stated that was afraid “[t]he the paralyzing her from spinal cord and By bullet, pain, approxi- bullet.” it, “stop Mary out wound down. screamed a.m., recording mately tape 2:00 Jennifer’s chased Jen- help” apparently as defendant ended. apartment. cried nifer She also out lying by police found Jennifer out, paralyzed,” and The dying, “I’m I’m eyes apartment 1021. Her front door of move, I move. What “[h]elp I can’t can’t open she was in a “semicon- JENNIE, you do to were you what did did do to state, bleeding profusely from scious” JENNIE.” tape recording transcript unless noted opinion of the quotations attributed in this All defendant, Mary, otherwise. are taken from or Jennifer chest “gurgling” death, wound and premeditation saliva and air with caused death bubbles from her pro- mouth. She was of JENNIFER BURNS....” Count II al- twenty nounced dead within fifteen to min- leged defendant, “intending or know- utes of her arrival at John C. Lincoln Hos- death, that his conduct would cause pital. premeditation with caused the death of MARY LOUISE LAVERS....” police
After the determined that Jennifer probably apartment lived in they dismiss, or, Defendant filed a motion to apartment knocked on the door alternative, in the to remand the indictment announced police that it was the and that finding probable a new cause. He they they were about to enter. As began claimed that the State him pro- denied due put lock, pass key police into by failing cess allege that he acted “in- out, Mary “[pjlease heard shout don’t come tentionally” in count I. The trial court in, got gun, he has you.” he will kill denied this motion. Defendant also filed a officers then retreated stairway down the suppress papers motion to seized Special and called in Assignments Unit apartment, the search of claiming his (SAU). description in the search warrant of the began arriving approxi- SAU members items sufficiently pre- to be seized was not mately a.m., using apartment 3:00 di- general cise and was a warrant violation rectly apartment staging below 2021 as a of the state and federal constitutions. The there, they area. While could hear “moan- motion, trial court also pre- denied this but ing” coming apartment from above them in using cluded the State from confidential a.m., 2021. At 4:37 several officers heard attorney communications between gunshot coming apartment from 2021. client. Defendant had Mary through top shot preclude The State filed a motion to evi- handgun of the head with a .22 caliber dence of intoxication and a motion to deter- a.m., extremely range. close At 6:41 after admissibility mine the record- negotiation attempts failed, police had ing. The court refused exclude evidence apartment entered the and arrested defen- intoxication, of defendant’s at least as to dant. *7 II, admissible, tape count and found the Meanwhile, police had obtained a subject only proper to foundation. apartment search warrant 2021 that permitted a search for several named items jury The found guilty defendant on both as well as “ANY AND ALL EVIDENCE degree counts of first pre- murder. At the RELATING TO THE HOMICIDE OF JEN- hearing, sentence Karnitsching Dr. Heinz NIFER BURNS W/F 15YR.” When exe- testified that the knife wound to Jennifer’s cuting warrant, police the search found painful, person chest was and that a suffer- tape a small cassette recorder on Jennifer’s ing such a wound necessarily would not pillows. bed between and under two Be- lose George consciousness. Dr. Bolduc tes- tape cause Detective see a Wheelis could Mary tified that died as a result of the recorder, picked up inside the he the re- gunshot wound to her head and the stab button, pushed play corder and but it wound to her back. The stab wound play. partially rewinding would not After paralysis caused below the level of the tape to if determine was recorder stand, injury, rendering Mary unable functioning, completely he rewound the walk, legs Despite or use her to crawl. tape and listened to it. then The detectives paralysis, Mary experienced would have tape evidentiary determined that the had stabbed, pain being after and move- fingerprints value and it. seized Jennifer’s pain. ment would have exacerbated the were found on the recorder. fatal, immediately The stab not wound was Mary On November defendant was and could have survived if she had degree timely indicted for two counts of first mur- received medical treatment. The defendant, alleged Mary der. Count I stab wound did not leave uncon- scious, “knowing his conduct would cause and she could have remained con- provided, longer.” Mary false information that defendant hours or scious “several if diagnosis his undermined even she shot. would be at the time was was still alive theory scientifically accepted. his were Donald testified on Psychologist Tatro presentence at the diagnosed He defen- testified behalf of defendant. cross-examination, he ad- hearing. During paranoid dis- having “delusional dant arrested and he had been order, jealous type,” which exists within mitted that aggra- trespass and “obsessive-compulsive charged with criminal of an the context August in 1988 as assault in Tucson He also testified vated personality disorder.” Mary. long- with appeared have a the result of altercation appellant Mary dropped charges known as “al- These were because standing form of alcoholism prosecute. Defendant also dependence, binge type.” opined He decided cohol charged “extremely he arrested and intoxicat- admitted that was that defendant was Maryland aggravated of the murders was with assault ed” at the time complained Mary January after his ex-wife experiencing “delusions” that police pointed that he had a .357 engaging sexual relations Jennifer were Mary’s handgun He also testified caliber at her head and threatened with ex-husband. night charge dropped her. at his use of alcohol on the kill This that defendant’s request. question precipitating “a factor.” ex-wife’s ability He concluded that defendant’s September the trial court On wrongfulness perceive of his acts or to I, special issued its verdict. For count requirements conform his conduct to Jennifer, found that murder Finally, “grossly impaired.” the law was proved beyond a the State had reasonable “adjust opined would that defendant aggravating statutory three circum- doubt quite prison well” to and “would be a mod- (1) stances: defendant was an adult at the prisoner.” el the murder Jennifer was under time of (2) reaching diagnosis, years age, his Dr. Tatro re- fifteen defendant was (count II) upon lied the truthfulness of what defen- of another homicide convicted despite dant told him the fact that defen- committed the commission of Jenni- murder, (3) had to Dr. the murder com- dant told the trial court he lied fer’s acknowledged especially He he took in an cruel manner. For Tatro. also mitted II, history Mary, steps no to confirm the count the murder of the court beyond provided, proved he did not listen to the found that the State had statutory aggravat- recording, that defendant had no indi- reasonable doubt two organic con- cations of brain disorders. circumstances: defendant was (count I) com- victed of another homicide testimony rebutted Dr. Tatro’s *8 Mary’s during mitted commission testimony psychiatrist with from Alexander murder, (2) the and murder was committed Although Don Don. Dr. was not able to cruel, heinous, de- especially and form an to defendant’s mental opinion as praved manner. murders, state at the time of the he found counts, mitigation of symptomology” to In both psychiatric “insufficient “diagnosis proved defendant had of delusion- court found that support Dr. Tatro’s disorder, that his abil- jealous preponderance He of the evidence paranoid type.” al ity appreciate wrongfulness of his testified that there was an insufficient also diagnosis “impaired to some extent.” that conduct was support basis to Dr. Tatro’s stated, however, seems “obsessive-compulsive had an court “[i]t mental incongruous de- the defendant’s personality disorder” and an “alcohol being the cause binge Additionally, Dr. and emotional disorders pendence, type.” require leniency also “psychodynamic murders can opined that the theo- these Don capacity appreciate hypoth- his ry” Tatro used “remains a because that Dr. signifi- wrongfulness of his conduct was scientifically proven” and is not not esis impaired.” It also found that defen- legal Finally, cantly Dr. Don in a context. useful prior felony record was a upon lack of a if Tatro had relied dant’s testified that Dr. mitigating circumstance, but this circum- DOCUMENTATION SHOWING along stance should be considered with de- RESIDENCY OF 16636 N 58 ST APT , prior involving fendant’s “two arrests do- #2021 Additionally, mestic violence situations.” (6) PHOTOGRAPHS & FINGER- military the court found that defendant’s PRINTS employment record and his conduct (7) ANY AND ALL RE- EVIDENCE mitigating while incarcerated were circum- THE LATING TO HOMICIDE OF court, however, stances. The stated that JENNIFER BURNS W/F 15YR. defendant’s conduct while incarcerated “is argues Defendant permit- that the clause great weight.” not entitled to The court ting “any the seizure of and all evidence (cid:127) found that defendant’s conduct relating to” Jennifer’s murder renders the was not mitigating factor because of disagree. warrant overbroad. We defendant’s “conflicts with counsel” and Supreme The United previ States Court “untimely unsupported requests ously considered rejected a similar ar Court.” gument. Maryland, Andresen v. beyond The trial court found a reason- petitioner argued containing that warrants mitigating able doubt circum- an “exhaustive list of particularly de individually stances “taken and as a whole” scribed documents” fatally were rendered leniency. were sufficient to call for “general” by phrase the addition of the Accordingly, imposed it death sentences oh “together fruits, with other instrumentali both counts. It also ordered defendant to ties and evidence of crime at this [time] $18,797.60 pay totalling restitution to the 463, 479, unknown.” 427 U.S. family Compensa- to the Victims’ $200 Al appeal tion Fund. This automatic followed. though acknowledged the Court prohibits
fourth
general
amendment
war
THE TAPE
ADMISSIBILITY OF
rants,
reject
id. at
at
S.Ct.
RECORDING
petitioner’s argument.
ed the
As in this
case,
warrants ... did not authorize
“[t]he
A.
Search
Seizure
executing
officers to conduct a search
argues
the warrant
only
for evidence of other crimes but
illegal
this case is
because it was intention-
search for and seize evidence relevant to
ally
argues
overbroad. He also
that the
the crime
in the
Id.
[identified
warrant].”
illegally
search was
extended because the
481-82,
(footnote
omit
police
“distinctly separate
officers’
and la-
ted). Likewise,
rejected
this court
similar
step”
listening
ter
tape recording
to the
arguments in two cases in
which
war
evidentiary
requires
to determine its
value
rants authorized the search for named
separate
supervision.
“any
items and
other evidence.”
Prince,
268, 272-73,
The search warrant authorized the
Moorman,
1125-26
following
search for and seizure of the
items:
We believe the warrant
this case is sub
(1) KNIFE
*9
stantially similar to the warrants in Andre-
(2) HANDGUN AND/OR LONG GUNS sen,’ Prince,
Moorman,
and therefore
(3) AMMUNITION
unconstitutionally
hold that it is not
over-
(4) BLOOD
broad.
2. argues
distinguish-
investigation
complex
that this case is
was a
real estate scheme
the warrant did not
proved only by piec
able from Andresen because
whose existence could be
particular-
contain Andresen’s "exhaustive list of
ing together many bits of evidence." See Andre
ly described documents” that “were models of
sen,
n. 10.
In addition
erally
entire area in which
warrant,
extends
the
argues that the
the
defendant
of
may
object of
search
be found
the
the
recording
an il
product
the
of
tape
by
possibility that
is not limited
the
police
search
the
legally extended
because
may
or
be
entry
opening
of
separate acts
evidentiary
not know the
value
did
complete the search.
required to
to it.
they
until after
listened
recording
officer to
authorizes an
warrant
Shinault,
Citing
v.
120 Ariz.
State
illegal weapons also
home for
search a
Davis,
(App.1978),
v.
P.2d 1204
and State
closets,
authority
open
provides
(App.1987),
154 Ariz.
drawers,
chests,
in
and containers which
listening
the
contends that
found____
might
weapon
be
the
step
requires
tape
separate
“dis
supervision.”
specific Court
Un
tinct and
in
As Justice Stewart stated
Robbins
case,
disagree.
facts
this
we
der the
of
California, 453 U.S.
[v.
defendant did not
Initially, we note that
(1981)] the Fourth
raise this
protection
the
provides
Amendment
it absent fundamental
has therefore waived
every
that conceals
owner of
container
Thomas,
See,
e.g.,
error.
U.S.,
plain
from
view. 453
its contents
S.Ct.,
(plurality opin-
at 2846
must therefore determine whether was
ion).
protection
afforded
But
fundamental error
the trial court to
in
set-
different
Amendment varies
may
tape recording. Before we
admit the
tings____
may con-
A container
analysis,
engage in a fundamental error
object
ceal the
a search authorized
of
however,
first find
we must
may
opened immediately;
a warrant
be
id. at
court committed some error. See
privacy
interest
the individual’s
1218;
King,
636 P.2d at
way
give
magistrate’s
must
to the
offi-
probable cause.
cial determination
of
below,
find
For
stated
no
the reasons
820-23,
2170-
admitting
tape recording.
such error
(1982) (footnotes
omit-
“Assuming
the con-
ted)
added).
that warrant meets
(emphasis
requirements
particularity,
stitutional
of
Applying
principles,
these
we conclude
descriptions provided
highly
rele-
police
illegally
extend the
that the
did
determining
scope
permissible
vant in
tape. The
by playing the
warrant
search
intensity
may
of the search which
be
named
authorized the search
several
pursuant
undertaken
to the warrant.”
“any
and all evidence
items as well
LaFave,
A Trea-
W.
Search and Seizure:
relating
murder. Because
to” Jennifer’s
(2d
4.10
tise on
Fourth
Amendment §
there can
no doubt that the contents
be
1987).
ed.
“Places within the described
re-
tape recording
evidence
constitute
merely because
premises
murder,
are not excluded
lating
contents are
to the
those
entry
opening
act of
scope
some additional
More-
within the
warrant.
case,3
4.10(a).
over,
As
may
required.”
be
Id.
circumstances of this
under the
police
for the
it was reasonable
Supreme Court stated
United States
we believe
recording
to conclude that
Ross:
case,
Second,
approved
in this
"exhaustive" than the list
items
this court has
use
there were
yet
upheld
clauses in two cases which
in both cases.
similar
warrants
seized.
lists”
items
be
no "exhaustive
Prince,
bed-
for two
found in Jennifer’s
the warrant authorized
search
3. The recorder was
weapons
authorizing
room,
Mary’s body
the search for
before
in which
same room
272-73,
“[a]ny
Ariz. at
found,
other evidence." 160
pillows on the
and under two
between
*10
Moorman, the warrant au-
found,
1125-26. In
at
off
and the
The
was when
bed.
recorder
"pillow
to
a search for
case used
thorized
played
tape
to the
the recorder and had
knives,
stains,
victim,
receipts, blood
suffocate
circumstances,
potential
these
end. Under
any
other evi-
identification
victims [sic]
appar-
significance
tape
evidentiary
583,
“[a]
Unit
of a search
Brewer,
795,
authorized
a warrant.”
ed States v.
630 F.2d
801
Therefore,
(10th Cir.1980)
under
recording
(quoting
Ross the
could
J. Weinstein and
[i.e.,
Berger,
M.
opened
played]
“be
immediately”
Weinstein’s
Evidence
with
¶ 901(a)[02] (1978)).
out an additional warrant. See United
Gomez-Soto,
649,
States v.
723 F.2d
654-
judge
The trial
must be satisfied
(9th Cir.) (using
reasoning
similar
in that the record contains sufficient evidence
holding search and seizure of a microcas
support
jury finding
that the offered
proper),
denied,
977,
sette
cert.
466 U.S.
proponent
evidence is what its
claims it to
(1984);
104 S.Ct.
387
551 F.2d
McMillan
64,
(5th Cir.1977),
applied in
v. Biggins,
ing the
test should be
66
adopted rigid guidelines
reliability
practical
light
the
of
courts have
a
assure
some
Id.;
see also Unit
of such evidence.5 Oth
for the admission
the recorded material.”
Kandiel,
Circuit,
ers,
(8th
have
967,
ed States v.
the Ninth
such
974
865 F.2d
O’Connell);
de
adopted
approach
flexible
that
a more
Cir.1989)
(following
re
and
Garrett,
judge’s
discretion
fers to
823,
(W.Va.
833-34
386 S.E.2d
only
judge
that
the
“be satisfied
quires
1989) (requirement
of seven foundational
authentic,
accurate,
is
recording
that
the
in which
is limited to situations
elements
5 J. Wein
generally trustworthy.”
and
of a
agent
or
control creation
police
their
Evidence
Weinstein’s
Berger,
M.
stein and
control,
tape
police had no
is
tape; where
(quoting King,
(1990)
11901(b)(5)[02]
n. 15
is
that
if the trial court
satisfied
admissible
961).6 Additionally,
least
587 F.2d at
coercion,
properly seized without
it “was
that
follows the more
one of the courts
identified”);
by
police
the
and
preserved
rigid
tape
the
is
approach relaxés
when
State,
Wigfall v.
257 Ga.
361
possession
in
one found
the defendant’s
(1987) (seven foundational
S.E.2d
378
by government
produced
than one
rather
tape
requirements
apply when
of
do not
O’Connell,
Eighth
agents.
the
Circuit
by
and not
by
murder was made
McMill
the
applied
that courts have
noted
interroga
custodial
state officials
an7
primarily to
re
requirements
sound
Jarvis,
But see State v.
tion).
N.C.App.
cordings that
the use of
recorder
involved
(seven
(1982)
290 S.E.2d
government
by
request
agents.
or
the
of
requirements
apply
should
foundational
then
court
stated its belief
when
recordings
made
victims be
are
when
defendant,
recording
the
made
was
intervention).
police
fore
application
of the
“mechanical
wooden
tape recording in this
McMillan
Because the
case
requirements
necessary.”
is [not]
O’Connell,
produced by
request
or at
of
than an mental state are irrele intentional because, determined, just vant as we have OF CONVICTION AND VALIDITY degree clearly the first murder statutes DEATH PENALTY UPON ALLEGA- may provide person that a be convicted for TION OF MENTAL STATE OF knowing or either intentional conduct. KNOWINGLY charged knowingly Even if the State rather argues the trial court preclude intentionally than the introduc prosecution erred when it allowed the intoxication, tion of evidence of defendant’s death penalty obtain conviction and the legal acceptable. strategy we find such a in upon allegation only an I of count fact, approved In implicitly this conduct culpable He knowingly. mental state of Rankovich, where we stated although premeditated contends that mur- charged is an accused with know “[i]f specific historically der has been a intent murder, first-degree committing ingly crime, allowing a conviction for the less voluntary is not to a intoxi accused entitled culpable knowingly mental state of would 116, 122, 159 Ariz. cation instruction.” general make it a crime Arizona. intent (1988) (citation omitted). Furthermore, argues, prose- charged than in- knowingly cution rather in the We answer affirmative de tentionally not be “mud- so would question as to whether the death fendant’s up” died in- with evidence of defendant’s constitutionally imposed penalty may be questions toxication. He also the constitu- “only” knowingly upon person com who tionality imposing penalty the death Supreme murder. The United States mits reject a “non-intentional” murder.11 We “an to kill” is Court has held that intent arguments. each these impos prerequisite to not a constitutional Arizona, Arizona, person ing capital punishment.
In commits first Tison 107 S.Ct. degree “fijntending knowing murder if or U.S. McCall, death, L.Ed.2d 127 per
that his conduct will cause
such
pre Ariz.
son causes the death of another with
— U.S.-,
13-1105(A)(1) (em
A.R.S.
meditation.”
Tison,
added).
person
premed
A
phasis
acts with
participation in
major
if
with either the
Court held “that
itation
he “acts
intention
charging only
argues
Washington
again,
case
Defendant also
Once
that fea-
11.
10.
knowingly
knowingly
I and
inten-
recording
count
murder
consist-
tured
of a
jury hopelessly
tionally
con-
II left the
count
Smith,
with
See
ent
our conclusion.
argument
find this
to have
Because we
fused.
849-50, 540
Wash.2d at
P.2d at
merit,
further.
we need not address
no
ground
juror
that a
committed,
reckless
reasonable
to believe
combined with
felony
life,
impartial
render
fair and
verdict.”
human
is sufficient to
cannot
indifference
12]
Enmund[
18.4(b),17 A.R.S. The deci-
culpability require Ariz.R.Crim.P.
satisfy the
render a fair
Tison,
158, 107
juror
to whether a
can
S.Ct. at
sion as
ment.”
court.
omitted).
Tison,
impartial
is for the trial
(footnote
this
verdict
Since
Chaney,
that a
rejected
has
*14
Rose,
1265,
(1984)(citing
v.
knowing
on a
mens P.2d
1273
State
death sentence based
5,
(1978)).
131, 139,
culpability re
P.2d
13
the Enmund
121 Ariz.
589
rea violates
McCall,
reject
opportunity
quirement.
In
v.
Because the trial court has the
State
“not
potential juror’s
demeanor
ed this
because McCall
to observe
felony murder case as were Enmund
set aside the
credibility,
a
we will not
charged
This defendant was
with
ruling
challenge
juror
Tison.
a
to a
trial court’s
on
murder____
premeditated
of
showing
and convicted
the. court
absent a clear
sufficient
jury findings alone are a
147
E.g., Sparks,
its discretion.
abused
death-qualifying the defendant
735;
for
54,
Chaney,
basis
141
Ariz. at
708 P.2d at
Ariz. at
770
“Moreover,
under Enmund.”
160
P.2d at 1273.
Ariz. at
686
concluded that “even
P.2d at 1172. We
party asserting that
the trial court
standard,
felony
murder
under
Tison
juror
denying
a motion to strike a
erred
constitutionally be sen
defendant could
establishing
for cause has the burden
his convictions
tenced to death because
incapable
rendering
a
juror
that the
is
disregard for
a reckless
demonstrate both
Davis,
impartial verdict.” State v.
fair and
major participation
human life and
(App.
P.2d
137 Ariz.
leading
the deaths.”
Id. We
crimes
Munson,
1983)
129 Ariz.
(citing
v.
State
dispositive, and
find Tison and McCall
(App.1981);
v.
about
If a
juror
impartial
should be struck
cause.
juror.
fair and
con-
juror ultimately
potential
assures
court did not
clude
err
fair, it is
that she can be
not error
judge
refusing to strike Juror Ebel.
omitted);
her.”)
(citations
to strike
refuse
Tison, cf.
DEATH SENTENCES
(1981) (“The
P.2d
fact
...
cases,
In all
court inde
death
this
juror
opinion or
prospective
possesses an
pendently examines the record and deter
guilt
regarding the
of the defendant
belief
mines the existence
non-existence
juror
not mean that
would be
does
aggravating
mitigating
circum
both
not ren
influenced
that belief
could
E.g.,
McMurtrey,
stances.
verdict____
impartial
fair and
With
der a
showing
unqualified partiality of
out a
*15
denied,
cert.
107 S.Ct.
480 U.S.
upset a determination
juror,
we will not
(1987). Additionally, we
juror without distraction.”
In this
hand,
The
case,
trial court found that Jenni
on the other
we
believe
statements,
whole,
espe-
Juror Ebel’s
read
a
fer’s murder was committed in an
fact,
regard
juror
to
facts of
like the facts
13. In
with
another
The
this case
much
Sparks,
Stump,
specifically
regarding Stump. Although
Sparks
Miss
held that
Juror
replies
ability
juror
the trial court did not abuse its discretion in
to
Ebel’s
as to his
serve as
ambivalence,
failing
juror.
degree
to strike
Id. at
P.2d at
exposed
he stated
although
Stump’s "re
thought
put
735. We noted that
Ms.
he
aside
he had
he
could
what
juror
plies
ability
exposed
as to her
to sit as a
upon
evi-
and decide the case based
heard
ambivalence,”
degree of
she
if “will
could serve
The
dence in the courtroom.
voir dire
put
opinions
aside her
base her
by persuading
and
properly used
him
to rehabilitate
solely
(citing
upon
decision
the evidence.” Id.
responsibility
impartially
sit
of his
him
Clabourne,
State v.
54,
give defendant a fair trial based on the evidence
(1984)).
also noted
voir
that ”[t]he
in the courtroom.
properly
dire was
used to rehabilitate her
Walton,
Supreme
stated that
14. In
Court
persuading
responsibility
im
her of her
to sit
Id.;
Poland,
constitutionally
“proportionality review is not
partially.”
also State
see
—
at-,
(1985),
required.”
at 3058.
aff'd,
U.S.
110 S.Ct.
proportionality
reviews
123 We continue
conduct
U.S.
106 S.Ct.
90 L.Ed.2d
matter of Arizona law.
as a
especially
argues
murder was
dally
manner. Defendant
We find that the
cruel
anguish
the mental
Jenni-
single stab
cruel because of
“died from a
Jennifer
suffered
the fatal stab wound
fer
before
efficiently
wound
administered
[defen
only
indicates not
her chest.
record
immediately departed the scene
who
dant]
fate,
to her
that Jennifer
uncertain as
any
attempt
prolong
without
effort or
also
she saw defendant stab
but
deterring
expiration by preventing
her
one,
After defendant
her mother.
loved
from
He contends that
help or aid
others.”
asked,
you,” Jennifer
I’d hurt
“[t]hink
suffering
directly
related to
Jennifer’s
stated, “[j]ust put
away
knife
twice
“inefficiency
primitiveness”
you
won’t think
will hurt us
more.”
utilized,
weapon
and that the death
murder
un-
indicates that Jennifer was
This alone
reserved for those cases
penalty should be
fate. After
said
certain as to her
Jennifer
purposely
murderer
selected
which the
defendant,
evidently
something
he
else
accomplish
the murder method in order to
her
left wrist with the knife. As
cut
on the
simple taking of the
something beyond the
screamed,
cried and
Jennifer
Tuttle,
Citing
victim’s life.
Finally,
her mother in the back.
stabbed
—
(Utah 1989),
P.2d 1203
apartment
ran out of the
Jennifer
U.S.-,
neigh-
pounded
stairs and
on a
down the
although
stabbing
argues
her in
bor’s door before defendant stabbed
distasteful,
gory
there is no evidence
*16
Thus,
chest.
we conclude that Jenni-
quicker
pain
less
that defendant had a
or
especially cruel
fer’s murder was
because
to him or that he
ful method available
anguish
suffered mental
before the
she
inflicting a dif
intentionally refrained from
fatal stab wound was inflicted.
that
have killed Jenni
ferent wound
would
argument
reject
also
defendant’s
We
instantaneously.
fer
suffering
directly relat
that Jennifer’s
was
aggravating
An
circumstance is es
“inefficiency
primitiveness”
ed to the
tablished if the defendant committed
weapon
murder
used. As a factual
of the
heinous,
especially
“in an
cruel or
murder
matter,
argument
entirely cor
this
is not
13-703(F)(6).
depraved manner.” A.R.S.
suffering may
Although
physical
§
rect.
especially
used,
A
is committed
an
weapon
murder
related to the
have been
espe
if the defendant inflicts men
cruel manner
that the murder was
have concluded
anguish
anguish
physical
cially
tal
abuse before
cruel because of the mental
mental an
166
Jennifer suffered. This
Amaya-Ruiz,
victim dies. State v.
that
(1990),
weapon used. In
177,
1260,
guish is not related to the
152,
Ariz.
800 P.2d
—
fact,
already rejected a similar
have
denied,
U.S.-,
cert.
S.Ct.
Gillies, 142 Ariz.
argument in
v.
Walton,
State
(1991);
Ariz.
L.Ed.2d
(1984),
denied, 470 U.S.
and no
circumstances sufficient
ly
Weighing
require leniency.
C.
substantial
Aggravating
E.g.,
and Miti-
Walton,
571,
1017;
159 Ariz.
gating Circumstances
769 P.2d
Martinez-Villareal,
441,
State v.
145 Ariz.
Defendant contends that the miti
670,
denied,
975,
cert.
474 U.S.
gating circumstances,
properly
if
evaluat
(1985);
106 S.Ct.
penalty.18
842
go through
F.2d
proposed plea bargain
with a
1525,
(9th Cir.) (en banc),
1537-38 n. 25
the contingency
when
obtaining
ap
the
denied,
cert.
901,
250,
U.S.
488
109 S.Ct.
proval
family
of the victim’s
was not satis
(1988).
McKenzie,
842 F.2d at
n.
The trial
1537-38
court ordered that defen
$18,797.60
(finding
impropriety
no
pay
state’s refusal to
dant
in restitution to Jan
briefing
since
18. We note that
and oral
Id.
2611 n.
at-n.
S.Ct. at
2. It did not
case,
argument
holding
consider the
"that
the United
Su-
Booth
the admis-
of this
States
family
preme
sion of
victim’s
members’ character-
holding
Booth’s
that the
Court overruled
crime,
opinions
izations
fendant,
about
the de-
eighth
prohibits
amendment
the admission of
appropriate
and the
sentence violates
impact
sentencing
victim
evidence
Eighth
Amendment" because no such evi-
—
Tennessee,
phase
capital
Payne
of a
trial.
Id.;
presented
Payne.
dence was
see also id.
-,
U.S.
111 S.Ct.
J.,
(Souter,
at-n.
n. 2
at 2611
(1991). The
held "that if
choos-
Court
the State
concurring).
yet
Because
Court has
permit
impact
es to
the admission of victim
part
prohibits
overruled
of Booth
ad-
prosecutorial
argument
evidence
family's
mitting
sentencing
opinions
as to
subject,
Eighth
per
Amendment
se
erects no
sentence,
appropriate
we have
considered
at-,
bar.” Id.
murders
J.,
V.C.J.,
CAMERON,
FELDMAN,
acknowledges
inadequacy
“the
defendant
concur.
currently
this Court as
record
before
issue,”
re-
of this
he
particulars
to the
Justice,
MOELLER,
specially
matter
we remand the
quests that
concurring
part.
hearing
evidentiary
with
trial court for
majority’s
portions
I concur in all
restitution be reduced
directions
portion
“D.
opinion except
entitled
any payments
with
Jan Vonder-
credited
view,
which, my
Proportionality Review”
poli-
received from life insurance
heide has
concurring opin-
unnecessary.
is
See
paid
provided
for and
that defendant
cies
Moeller
ions of Justices Corcoran and
Mary and Jennifer.
White,
168 Ariz.
vided nothing that establishes Justice, the record contains CORCORAN, specially life any such insurance concurring part. the existence policies, proceeds paid the amount of special Moeller in his join I with Justice any policies, such or that Jan out under concurrence. any proceeds. received such Vonderheide duty has the to ensure that the any material or documents record contains
necessary appeal. to his on complete, record is we must
When on
assume that evidence not available supports trial court’s actions. appeal P.2d 356 Crum, State v. In re TOYOTA ONE SILVER (App.1986) (court rejected argu- SEDAN, VIN FOUR-DOOR for providing ment that affidavit basis JT2MX63E4D0004378, Defendant. # because the search warrant was defective Arizona, rel., ex K. Robert STATE of evidence); into was never admitted affidavit General, CORBIN, Attorney Kerr, 142 690 P.2d Ariz. Plaintiff-Appellee, (court rejected argu- (App.1984) suppress should have ment that motion to granted been because counsel the de- VALENTINE, Claimant-Appellant. Willa the warrant and fense never introduced No. 1 CA-CV 89-079. evidence); list into see attached 512-13, Zuck, Ariz. Arizona, Appeals of Court of (1982). Thus, by failing to 165-66 ensure 1, Department C. Division sufficient to appeal the record July argument, has support his restitution issue. review the waived
DISPOSITION the entire record
We have searched required error as A.R.S.
fundamental 13-4035, California, Anders v. (1967), 18 L.Ed.2d Leon,
and State none. We af- found have