State v. Stanley

Arizona, Appellee, STATE of STANLEY, Appellant.

Milo McCormick

No. CR-87-0289-AP. Arizona,

Supreme Court

En Banc.

Feb.

first-degree murder. He was sentenced daughter to life killing his death for killing his This wife. imprisonment for pursuant jurisdiction has court Const, 13-4031, 6, 5(3) and A.R.S. art. § §§ -4033 and -4035.

ISSUES (1) and Stanley contends: his confession subsequent incriminating were statements involuntary and of his obtained violation counsel; (2) legal right to constitutional failing suppress court erred in to evi- trial pursuant obtained to search war- dence it neutral rant because was not issued magistrate detached because supporting probable cause was obtained; (3) the court improperly trial suppressed the evidence ob- should have pursuant the consent search be- tained to personnel al- cause law enforcement were ready premises and because the on cir- alleged consent invalid under the cumstances; (4) court have the trial should to granted motion voir dire prejudice; possible for bias trial (5) change of venue should have (6) imposed granted; the death sentence daughter dispro- murder for the under the circum- portionate excessive and, stances; pеnalty Arizona’s death is unconstitutional. statute

FACTS p.m. approximately At 11:30 on June Woods, Atty. by Paul J. Grant Gen. Po- Stanley reported to the Clarkdale McMurdie, Counsel, R. Chief and Gerald five-year-old daughter lice that his wife and Grant, Phoenix, appellee. for p.m. gone for a at about 10:45 had walk Freedman, Copple, Kenneth D. Chamber- and had returned. Police officers Phoenix, Boehm, lin & Boehm Scott E. family began searching the com- members appellant. for munity for the and child. woman OPINION morning, next two of At about 9:30 the went the busi- Stanley’s wife’s sisters HATHAWAY, D. JAMES Court father, by Stanley and ness owned Appeals Judge, Department A. Volkswagen garage. they There saw JURISDICTION missing pre- woman had driven the car evening. gave Stanley’s father vious Stanley (Stanley) ap- Milo McCormick permission through car counts of to look peals from his convictions two women they found one of Stanley again extremely wife’s became emotion- missing shoes and one of the child’s shoes. began cry. while, al and After a short They also noted an offensive odor in the Saravo asked whether was all They reported findings automobile. these right. Stanley then confessed that he had Department, telling Clarkdale Police daughter. shot his wife and The officers the officers their sister and niece had worn questioned attempt him in an to determine night the shoes the before. might whether the victims still be alive. Stanley responded they dead, One of the garage sisters returned to the and the officers asked where the bodies Finding locked, that afternoon. she went could be found. then recounted Stanley’s apartment and asked his moth- previous evening the events of the and the keys. er for Stanley gave his mother area where he had hidden the bodies. keys gave sister, and she them to the garage. who then returned to Looking During time, a search warrant had through again, the car she discovered what sought been drafted and the officers Later, she believed to be bloodstains. the magistrate to issue the document. The second sister shop arrived at the and she magistrate home, was not at but his wife They too saw the report- bloodstаins. also was able to contact him and advised him ed this to the Clarkdale Police. county building. that he was needed at the

Upon receiving information, this new there, five When he arrived he learned that accompanied officers ga- sisters to the everyone garage. was at the magis- rage premises. and entered They proceeded trate then garage, to the en- casing found a shell to a small calibre tered, just and sat at a desk inside the door bloody firearm and some socks in the car. where he reviewed the affidavit and issued the warrant. p.m. At day, about 5:30 the same officers Stanley’s apartment went to requested Police found the bodies of wife accompany that he and his father them to daughter alongside Springs Allen Road garage. They obtained written consent at the by Stanley. location indicated Stan- Stanley both and his father to search ley’s times, wife had been shot three garage. While officers continued to child had been shot once. premises pursuant search the to the con- given, agreed sent Stanley to accompany CONFESSION AND RIGHT (Saravo) investigator an county TO COUNSEL building for interviewing regarding further missing his advising wife and child. After Stanley contends the trial court erred in Stanley rights, of his Miranda Saravo admitting his statements to the officers permission asked him for to search his they involuntary because were and ob- apartment. Stanley signed a consent form. right tained in violation of his to counsel. During questioning, Stanley stated that he argues given He that because he was say anything did not wish to more until he warnings Miranda and thereafter invoked speak lawyer. could with a He was ex- counsel, right interrogation all tremely emotional at this time. should have ceased. See Edwards v. Ari- Meanwhile, pursuant signed zona, 477, 1880, con- 451 U.S. 101 S.Ct. forms, 378, sent garage officers searched the reh’g denied, 973, L.Ed.2d 452 U.S. 3128, discovered a blood-soaked (1981); blanket and 101 S.Ct. 69 L.Ed.2d 984 seat Finehout, cover a trash can located inside the v. State 136 Ariz. premises. They business then returned to He right asserts that the county building to secure a search questioning war- curtail must scrupulously be there, rant. they While told prima Saravo what honored and that a confession is they had found. Finehout, Saravo communicated to facie involuntary, see play suspected foul was 665 P.2d at unless the state disclosed the preponderance items that had been found at shows of the evidence garage. voluntarily that the confession was made. Bustamonte, ing hunting knife and was not disarmed. 412 U.S. v. Schneckloth See Although 36 L.Ed.2d Police Station Cottonwood P.2d 704 Knapp, garage, v. very far from the was in the office questioned at Saravo’s (1978). Following far building, was not county which also sup hearing on the motion to evidentiary garage. from the court found press, the trial investiga- questioning, the At the time of voluntarily to Saravo statements missing a search for tion’s focus was on made. himself, not on persons initiated ruling on a motion to A trial court’s suspicions Saravo had a homicide. While appeal disturbed on suppress will not be Stanley, there was no direct evidence about clear and manifest error. State absent Testimony during the of his involvement. Rivera, suppress heаring on the motion determined there was nei The trial court Stanley was free to leave. unequivocal that nor an Edwards violation ther Miranda interview, left the office During the he custody at the Stanley was not because something get to drink and unescorted to questioning. agree. We time of Saravo’s in the of- use the restroom. He remained warnings required only are when Miranda that the interview fice once Saravo stated question suspect is in police officers a who put- and while Saravo was was terminated Perea, 352, 142 Ariz. 690 custody. v. State ting away tape recorder. There was the case, (1984). Stanley In re P.2d 71 this physical display weapons of nor neither a warnings in connection ceived Miranda indicating that language of contact or use requests for consent to search the with statements were com- Stanley’s presence or warnings garage and his residence. These Mendenhall, 446 v. pelled. United States Dean, 112 required. v. were not State 497, 544, 1870, 64 L.Ed.2d 100 S.Ct. U.S. 437, 543 P.2d 425 v. State 908, 3051, denied, 100 448 U.S. S.Ct. reh’g 602, (App. P.2d 174 King, 140 Ariz. 684 (1980). Applying the 65 L.Ed.2d 1138 Car- 1984). case, agree we that ter factors to custody one is in is deter Whether custody. not in Stanley was objectively: the circum- mined Under stances, person argues feel Stanley would reasonable is irrelevant v. deprived of his freedom of action? State custody in because that he was whether Carrillo, 125, (1988). 156 Ariz. warnings if only determines Miranda (1) custody include: Factors indicative he had required. He contends that because objective arrest are whether indicia of warnings in con- given his Miranda been (2) present; interrogation; the site of the re- the consent to search junction with length investiga- form of the rights, he quests, and because invoked tion; and, (4) investigation whether the had stopped at that should have questioning Carter, the accused. focused on State v. 487, Edwards, 101 451 U.S. at time under 101, (1985). P.2d 488 145 Ariz. 1886, 68 L.Ed.2d at S.Ct. at case, present law enforce In the warnings were re Because no such Stanley by a call from ment was activated agree we quired, and because daughter for his wife into a search pertinent inquiry is custody, not missing. During reported he them when voluntarily statements were whether testi investigation, Saravo the search and 531, Burns, 142 Ariz. made. if he would fied that was asked Cf. 297, (1984)(solicitation 534, building county accompany Saravo clearly permissible de before information know, about, things we you him to “talk to he was suspect and when fendant was agreed to Stanley voluntarily had found.” custody). The state has the burden handcuffed; not accompany him. He was not evi preponderance proving indeed, arrest he was not under he was told were vol- dence that statements suspect. Stanley was wear- and was not a untary. Knapp, 538, State v. confession from him that would have 562 P.2d at 711. given in an unrestrained environment. Mauro, 520, See Arizona v. U.S. determining In whether the state has 1931, 458, reh’g 95 L.Ed.2d burden, met that courts must look to the 483 U.S. 107 S.Ct. 97 L.Ed.2d totality of circumstances surrounding giving of the confession. Id. In Colo Supreme Connelly, rado v. Court stat confession, Following Stanley’s the state only ed that confessions will be excluded as purpose asserts that in- Saravo’s police there involuntary when miscon quiry about victims’ location was to causally related to the duct confession. they might determine whether still be alive. 107 S.Ct. L.Ed.2d 473 argues proper The state this was under the (1986). Such is not the situation in this public safety exception adopted in New case. When ‍​‌​‌​​‌​​​​​‌‌‌‌‌‌​​​​​‌‌​​​‌​‌‌‌​​​​‌‌​‌​‌‌​​​​‍stated he wished to Quarles, York v. 467 U.S. 104 S.Ct. lawyer, interrogation speak to a ceased. 2626, agree. We Nor the record thereafter does disclose the equivalent of questioning. functional Moreover, personal while circum Innis, explained Rhode Island v. Court stances, intelligence such as and mental or equivalent encompasses functional status, may emotional be considered “any part words or actions on inquiry, voluntariness the critical element (other police normally than those attendant necessary to finding po such a is whether custody) police to arrest and lice conduct overreaching. constituted know reasonably likely should are to elicit Lundstrom, incriminating response from the sus (App.1988), P.2d 631 part rev’d in pect.” part vacated in on other grounds, 161 1689, 297, (1980). Although 64 308 L.Ed.2d 141, (1989). Ariz. 776 P.2d 1067 We believe “normally the definition of attendant to supports the record finding the trial court’s custody” arrest is not addressed prod statement “was not the Court, Supreme the Ninth Circuit has held uct of force or coercion nor induced police that when the inform “a defendant promise immunity.” or benefit of circumstances which contribute to an intelligent judgment, exercise of his Stanley questioned was not for an may normally information be considered extraordinary length taped of time. His custody.” attendant to arrest and United interview approximately lasted one hour. Crisco, 1228, (9th v. F.2d States remaining The statements were made over Cir.), 977, 466 U.S. 104 S.Ct. thirty- sixty-minute period. another to 80 L.Ed.2d 832 United States There is no evidence that Stanley was held Thierman, (9th 678 F.2d 1334 n. 3 any prolonged or deliberate isolation. Cir.1982). get He free to was a drink or use the restroom, although emotional, he was Following counsel, Stanley’s request for nonstop, high- the officers did not continue “bloody Saravo’s information that some pressure interrogation. taped seg The stuff” had found in the trash cans at Stanley crying ments where and emotion garage appellant’s and that wife and long pauses intervening al include with no child had probably play met with foul in- questions given formed discussion. He was an Stanley of evidence available and opportunity compose circumstances himself and volun that would contribute to an intelligent tarily made judgment. question.1 exercise the statements in While out, tape Stanley crying it is true that Once the ran Saravo testified that was clear- ly upset, spoken Stanley quite the words were neither because was still emotional subtly designed crying, coercive nor if to extract a Saravo asked he was all voluntariness, determining given opportunity regain composure. factors such as police provision Lundstrom, 487-88, concern for a defendant and 157 Ariz. at 759 P.2d at Further, may amenities be considered. a defen- 633-34. upset dant who is emotional should be right, Stanley replied, to which “No.” Smith, and manifest error. State v. following testimony: record reveals the P.2d This court views the light facts most favorable said, help I I “What can do to [Saravo]: supporting ruling. the trial сourt’s you?” said, And he “Shoot me.” Cook, Q. happened And what then? (1977). A magistrate neutral and detached him, I you? Why A. asked “Shoot is one who has disengaged severed and I you?” would want to shoot himself from the activities of law enforce- Q. say? And what did he ment. City Tampa, Shadwick v. said, Ah, A. He “Because I shot them. 92 S.Ct. my gourd. I was drunk out of Damn up Mingus.” alcohol. We were on Stanley argues magistrate that the We do not these statements believe present garage at the before he issued product overreaching by Saravo but warrant, the search that he saw numerous Stanley’s voluntary rather were state- police already searching prem officers inquiry ments. initial Saravo’s demonstrat- ises, had a garage full view of the entire ed reasonable concern for Stanley’s dis- area, had conversations with one or more traught conveyed condition and an offer of officers, and top moved items on of a desk assistance. Nor do overreaching we find in the area to be searched. con his reaction to response. bizаrre cludes that such conduct is evidence of We do not find clear and manifest error involvement enforcement. He ar with.law requiring reversal of the ruling trial court’s gues precluded that this involvement on suppress. Rivera, the motion to magistrate acting in a neutral and Ariz. at 733 P.2d at 1096. capacity, thereby rendering detached (1) We conclude search warrant invalid. (2) in custody; his sixth amendment Sales, cites Lo-Ji Inc. v. New rights attach; though did not even York, suspect right invokes his to decline further L.Ed.2d 920 in support propo- interrogation spoken until has he to a law any sition that pursuant seized yer, police may question continue to an invalidly issued warrant is tainted and him in and, (4) setting; non-custodial so requires suppression. agree While we with long responses as the voluntary, are proposition that authority, and the we find his overborne, will has not been the sus distinguishable the facts in Lo-Ji pect’s responses may used in be evidence those in this case. against him. Accordingly, find no we error Lo-Ji, magistrate In had issued a in the admission of statements. proceeded sеarch warrant par- and then to ticipate police with the in its execution. ISSUANCE OF SEARCH WARRANT magis- record here reflects that the Stanley argues that the trial court erred trate was not initially available when con- failing to suppress the evidence obtained tacted. subsequently He returned the call pursuant to the it search warrant because him, key but did not have his office with so was not issued a neutral and detached dispatcher he told the he would meet the magistrate. States, 333 Johnson v. United police officers at the Cottonwood Police 10, 367, (1948); U.S. 68 S.Ct. 92 L.Ed. 436 arrival, Upon Station. his he learned the Collins, 575, State v. 21 Ariz.App. 522 P.2d garage. proceeded officers were at the He (1974). 40 He asserts neutral and that a garage to the and entered a small office magistrate detached is needed to ensure search, participate area. He did not in the impartial weight assessment of inspect evidence, any did not items of credibility of the presented information to investigation not involved with the pros- or support the issuаnce of a search warrant. case, ecution of the and had no affiliation any police department. We will not signed disturb a trial court’s with He ruling suppress on a motion to solely clear warrants absent based on the affidavits be-

526 Girdler, see also State v. magis detached fore him. A neutral and denied, cert. does not “lose ... his character as trate P.2d 1301 merely regular he leaves his such because 82 L.Ed.2d 826 McGann, readily make himself State v. office in order to 645 P.2d to law enforcement officers who available the issuance of warrants may wish to seek sisters- dispute does not that his Lo-Ji, at 328 U.S. n. him.” personnel invited law enforcement in-law 6; L.Ed.2d at n. 930 n. S.Ct. at 2325 they garage into the or that obtained Whitehorn, States v. see also United key position from his mother. His that Cir.1987), (2d F.2d 1225 giving no real or women consent had Further, apparent authority to do so. present in FBI office (magistrate for authority mother had no common over the signing warrant dur over six hours before it, property relationship sufficient he heard radio trans ing which time voiding thus her consеnt. not deemed to have abdicated missions was Castaneda, question role). magisterial detached his neutral and premises authority common over business approve practice do not we While sister con- was raised when defendant’s magistrate visits the crime scene which sented to a search. 150 Ariz. affidavits, unique study the on facts The court held that the test for in this case we find no error. on determining authority common focuses Alternatively, Stanley argues apparent authority and found that because prob- search warrant is invalid because joint owner of the defendant’s sister was a upon cause which it was based was able premises no rooms on the business posi- He derives his

improperly obtained. regarded private, po- premises were as premise that the evidence tion from the reasonably she had lice could infer that supporting the warrant was his confession authority to consent to a search of in violation of and that it was obtained Castaneda, premises. 150 Ariz. at Having resolved Mirаnda and Edwards. 389, 724 P.2d at 8. Stanley, against we find his issue probable argument cause meritless. The state contends that be giv cause sisters-in-law had been SEARCH

CONSENT keys by Stanley en the business mother, reasonably appeared through the trial Stanley contends authority give suppress they apparent had failing court erred ‍​‌​‌​​‌​​​​​‌‌‌‌‌‌​​​​​‌‌​​​‌​‌‌‌​​​​‌‌​‌​‌‌​​​​‍undisput consent. The record includes the to the consent search pursuant obtained testimony sister-in-law that she personnel ed of one enforcement because law Stanley through his premises, keys the garage the obtained already illegally on Stanley she intended mother and that knew was not obtained alleged and the consent ga open garage them and search through the to use to police until the had been giving keys to another is state re the car. While rage the car. The and examined comple not authorization to enter voluntary a blanket sponds prior to the that search, cir premises and authorize a when tion forms Stan of the consent-to-search doing propriety dictate the of father, Stanley’s cumstances ley sisters-in-law and his so, in authority may properly be voluntarily police to the common had consented ferred, delegated po exercised and to premises. Third- search of the business State, 250 Ga. lice as in this case. Dover v. require party the warrant consent removes 209, 211, 710, 712 the third 296 S.E.2d voluntarily given ment if it is party authority” over or oth has “common (1983). Moreover, the search L.Ed.2d 462 premises or relationship er sufficient to action community effort called into seized. United was a property searched or partic Matlock, 164, 171, Stanley, his sisters-in-laws’ v. States expected. 988, 993, ipation might reasonably be 39 L.Ed.2d Rossi, Stanley began). request claims that he and his fa In stated that a we voluntarily upon did not consent judge ther to voir dire the trial based shop. they possibility prejudice search of the He contends were mere with- of bias and completely upset encompassed exhausted and and that out more is not within the by stating right deceived them the officers that constitutional to a fair trial before they Here, only being impartial judge. reason to in its asked the motion sign forms expedite entirety consent was to no more than a re- included bald investigation quest probe because a search warrant was in order to for to voir dire way Stanley possible Stanley on its to scene. insists file a bias so that could that, totality of challenge. nothing under the circum We find in the record stances, their consent was per suggesting Stanley based on a that denied a fair they had no ception impartial judge. that choice but to ac trial before an sign quiesce the consent forms. police The record reflects that officers CHANGE OF VENUE explained Stanley fully and his father Stanley argues that the trial court erred rights, their constitutional informed them denying change his motion for a of ven- car, found in the and told bloodstains pre- ue. He contends that the extensive they

them did have to consent to a publicity, including televising trial disputed police It search. whether the arraignment, unfairly prejudiced him. Stanley and his told father that a search publicity He asserts that the had reached way. on warrant was “It is for the outrageous proportions prejudice and that conflicting trial court to resolve testimo- presumed. him could be the alterna- ny.” Hanson, 296, 301, State v. tive, publicity he claims that the tainted his (App.1983). Accordingly, 674 P.2d ability jury impaneled to have an unbiased agree we with trial court’s conclusion deprived and thus him of a fair trial. See Stanley voluntarily and his father con- Chaney, Ariz. sented to the Laugh- search. See State ter, (App.1980). responds The state VOIR DIRE OF THE TRIAL JUDGE outrageous publicity failed to show either Stanley filed a motion to voir dire resulting prejudice or from the media cov judge, the trial which the court denied be erage and therefore the trial court correct showing pos cause made no ly request change denied his for a of ven sibility prejudice. Stanley contends this ue. The record does not reflect was reversible error. He asserts that his atmosphere, pre a “carnival” that raises a right impartial to a fair and trial was de sumption prejudice. Chaney, nied because he was not able determine 686 P.2d at 1272. therefore judge prej whether the trial was biased proving pretrial had the burden of that the that, against udiced position him. His publicity likely deprive would him aof fair without independent knowledge, he must required showing jurors trial. That be allowed to voir dire the make preconceived had formed notions of Stan such a determination. guilt ley’s they could not set aside. A responds juror may disqualified The state merely that there is no con- not be on a right judge. showing prior knowledge stitutional trial that he had voir dire a of the Rossi, 245, 37, v. Befford, State 154 Ariz. 741 P.2d 1223 case. State v. 157 Ariz. 754 (1987); (1988). public 1141 Superior State ex rel. v. P.2d “It is the Corbin cf. effect Court, 560, (1987) critical, ity juror’s objectivity 155 Ariz. 1184 on a that is 748 P.2d (impartiality judge ques- publicity.” of the may be not extent of State v. LaG rand, 21, 34, 563, 576, tioned proceedings when adversarial a 153 Ariz. 734 P.2d assigned denied, 872, 108 207, criminal case are cert. 484 98 who U.S. S.Ct. (1987) (emphasis original); was a member of the staff L.Ed.2d 158 prosecu- of the 302, tion or prosecution Chaney, defense at the time 141 Ariz. at 686 P.2d at 1272. 528 case, newspaper particularly

In this no articles offense was committed examples pretrial publicity manner, 13-703(F)(6). depraved or other A.R.S. § change for Stanley’s finding attached to motion of Stanley dispute the court’s does Stanley’s The trial court denied venue. aggravating pursuant circumstances prejudice, encouraging motion without de 13-703(F)(8) 13-703(F)(9). A.R.S. §§ the motion if appro fense counsel to renew argue erred in find He does that the court priate during jury selection. ing particularly that the offense was de in fact renew the counsel did motion on praved. totality of the circum Under occasions, and all were several denied. stances, Stanley that the facts of asserts place year one The trial took after the blatantly this unlike the sadistic case are committed. The record re crimes were torture-murder cases that this court has lengthy, voir dire was flects that the con meriting depraved found to be individually group, and as a See, Gillies, ducted e.g., death sentence. State v. ample opportunity had that counsel 500, (1983),appeal P.2d 1007 662 potential jurors to аscertain the question 564, remand, 142 Ariz. 691 P.2d 655 after (1984), pretrial publicity objectiv effect of on their 1059, denied, cert. 470 U.S. 105 ity. The who could not decide 1775, venireman (1985); S.Ct. 84 L.Ed.2d 834 v. State solely the case on the evidence was excused 531, (1980). Bishop, 127 Ariz. 622 P.2d 478 The venireman had formed for cause. who The offense was not found to be guilt opinion was also ex shooting cruel but the trial court found cused for cause. We find no error. conduct, depraved child to meet the test for which involves the killer’s mental state and DEATH SENTENCE killing. attitude at the time of the See Aggravation/mitigation A. 242, Beaty, 158 Ariz. at 762 P.2d at 529. State v. Gretzler listed five factors that imposed The trial court the death finding could lead to a or de of heinous penalty Stanley’s daugh for the murder of (1) praved relishing conduct: of the murder finding aggravating three circum ter defendant; (2) gra by the the infliction of sentencing. Although stances at the court beyond violence on the tuitous victim circumstances, mitigating found five kill; (3) necessary to mutilation of the vic sufficiently found none to call substantial body; the senselessness of the tim’s case, sentеncing In leniency. capital for crime; and, (5) helplessness of the vic independently must the exist we review 42, 52-53, 1,11-12, 659 P.2d tim. mitigating aggravating ence of circum 971, 2444, cert. denied 461 U.S. 103 S.Ct. propriety stances and of the determine reh’g denied 463 U.S. Stevens, imposed penalty. death State v. 1236, 32, 104 L.Ed.2d 1452 S.Ct. 77 595, (1988); Ariz. 158 764 P.2d 724 factors, to those we have also addition 232, (1988), Beaty, 158 Ariz. of a as a held that the elimination witness denied, 910, 3200, 109 S.Ct. cert. U.S. may motive for murder be considered a 708, denied, 105 L.Ed.2d 492 U.S. reh’g Gillies, indicating depravity. factor See L.Ed.2d 637 S.Ct. P.2d at 1019. Testi Richmond, 114 Ariz. mony shot at trial indicated denied, daughter because she had seen what he reh’g 53 L.Ed.2d had done. 54 L.Ed.2d killing helpless of a child is circumstances, disregard aggravating the court senseless and demonstrates for As satisfying of an- human life two five Gretz found: That was convicted helplessness apparent Her during the com- ler factors. other homicide committed offense, she and her twelve-month-old mission A.R.S. because in 13-703(F)(8); parents were alone with their an was an adult brother § Mingus in the foothills of daughter years and his under fifteen automobile and, age, 13-703(F)(9); dependent Mountain. for care and A.R.S. that the She § protection her moth- upon parents, her and that defendant committed the murder of just in especially depraved er had been shot. The record reveals an man- [the child] ner. that she died from hard contact ‍​‌​‌​​‌​​​​​‌‌‌‌‌‌​​​​​‌‌​​​‌​‌‌‌​​​​‌‌​‌​‌‌​​​​‍wound to a top of her head. The medical examiner agree judge We with the trial that the child testified that contact meant a hard wound especially depraved was killed in an man pressed gun the muzzle of the had been child, ner. When a father kills his own his head, against by as evidenced child’s sensible, actions cannot be characterized as pattern the circular a of dark- wound with nor can his state of mind be considered

ening corresponding to the dimensions of perverted. other than This fact sets this gun. the muzzle of the apart first-degree crime from the norm of finding murders and warrants a that the killing helpless We have found the of a especially murder in was committed an de and evidence of child to be senseless an evil See, praved manner. e.g., State v. Moor depravi state of mind sufficient to indicate man, (1987) 154 Ariz. 744 P.2d 679 Wallace, ty. (killing own mother above norm of P.2d 232 murders); first-degree Cornell, State v. (1987) (kill (1986) (depravi Ariz. 715 P.2d 721 ing sixteen-year-old of twelve- and children ty murders, indicated senseless unneces and their mother with whom defendant had sary robbery; helplessness to the of bound years supported depravity lived for two gagged victims shot one at a time with finding). egregious more Even than the life). disregard total for human facts are those in this case Wallace mitigat The trial court found five because the child was daugh own circumstances, ing but found them insuffi ter. require (1) leniency: cient to had a Finding that the child was murdered (2) prior history; minimal criminal he was manner,” “especially depraved an the trial man; (3) adequate family he had at judge stated: tempted to himself from mari rehabilitate According Cook, testimony to the of Mr. juana problems; and alcohol abuse he just within a killings, short time after the very had exhibited little violent behavior bodies, disposal of the attempts and, (5) spousal abuse; he was remorseful evidence, hide Mr. defendant was at for his crimes. The trial court refused to place Cook’s racy of business to rent a drug find that chronic and alcohol videotape identified Officer Saravo la- abuse or its use at and around the time of Goes, ter as Anything entitled Best of a mitigating a crimes was factor. Stan dealing video strip game with a show. ley proof by preponder had the burden a Defendant did appear to be under the imposition ance of the evidence to avoid influence any drug of alcohol or at the Rossi, penalty. the death appar- time he rented videotape, (1987) (Rossi II). ently some time in the next hours Rossi, In State v. before part he was arrested had watched (1985) (Rossi I), sentencing tran of it. script judge demonstrated that the trial When these factors are considered to- erroneously believed that im defendant’s gether, they paint a man picture pairment 13-703(G)(1) under A.R.S. must § depraved so helpless that he could kill his have been sufficient to constitute a defense child, five-year-old completely who was prosеcution. Accordingly, re we dependent on him trusting resentencing. manded for record goodwill her, toward kill no rea- her for present case reveals no such error. son other than to eliminate her as The trial considered whether witness, then, body rolling after her proved by preponderance of the evidence mountainside, down a sought drugs signifi to idle that his use of alcohol and/or away by indulging his time cantly impaired capacity appreciate himself in watching strip game wrongfulness Beyond show. of his conduct or to con doubt, proven requirements reasonable the State has form his conduct to the II, at 741 P.2d at A. No. law. Rossi 1229; Wallace, Ariz. at Q. appear staggering He didn’t to be Tittle, 239; at anything of that nature? P.2d A. No. Q. appear Did he to be under the influ- that A.R.S.

Rossi II instructs anything? ence of 13-703(G)(1) disjunctive in the is stated § No, the court ac- nothing and must be considered A. that —I took no undue 251, 741 P.2d at any Ariz. at cordingly. 154 notice of behavior like that. There, that the trial court found the testimony the We have reviewed all of finding that defendant court erred not psychiatrists psychologist the the three preponderance of the evi- proved by had Stanley. Only expert one who examined significant- addiction that his cocaine dence appreci- Stanley’s capacity testified that to capacity to conform his impaired his ly wrongfulness or to ate the of his conduct requirements of the law. conduct requirements conform his conduct the gave case unrefuted expert An in that Id. impaired. the The other three law was appellant’s the life testimony: that Stanley his conduct was testified that knew drugs; (2) controlled that dominated and wrong and knew so at the time he commit- committed the crimes he would not have disposing ted the crimes. His actions addict; (3) cocaine that had he not been a bodies, hiding bloody blanket significantly impaired his ca- the addiction cover, hiding gun, calling then seat re- pacity to conform his conduct to the persons report all missing in a false were law; and, (4) chemi- quirements of the purposeful further evidence actions and deрendency cal fosters insatiable wrongfulness appreciated the of his that he life-controlling craving drugs for additional experts Two of the testified that conduct. ability to con- that overwhelms the user’s Stanley suffering any from mental II, 154 physical trol his behavior. Rossi him from prevented illness that could have at 1228. at P.2d conforming requirements his conduct to of the law. case, testimony In this indicated drug prob- had chronic alcohol and II, found that In Rossi the court sought help lems and had for them. The had, trial court’s appellant contrary to the testimony presentence record reveals at finding, proved by preponderance hearing presentence report and in the signifi- cocaine addiction evidence that his ingested had at six cool- least wine impaired capacity to conform his cantly eight in the ers and to ten lines of cocaine requirements of the law. conduct to the kill- immediately preceding six hours supporting reversal was The evidence However, trial, ings. during the the em- testimony expert thаt Rossi’s unrefuted ployee Stop from Number One Food overwhelming dependency was so chemical following videotape whom rented a controlling his prevent him from as shootings testified: physical behavior: Q. right. Did appear you— All he crime, appellant had a At time of the well, process In the your strike that. and was $l,000-per-week cocaine habit process in the conversation and of rent- suffering from “cocaine intoxication with ing tape, away you how far of delusions and halluci- manifestations him? paranoid nature.” And nations abuse____ Foot-and-a-half, maybe. two feet

A. It wasn’t “chronic cocaine using cocaine Q. you a matter that he was appear just that he had Did His suffering the effects of cocaine. drinking? personality began to evolve whole impression. I get A. I didn’t didn’t That was the the use of cocaine. around any impression like this. have life.” occupation of his central Q. anything? smell You couldn’t P.2d at 1228. Ariz. at A. No. II found: speech? in Rossi Q. slurring He The court wasn’t

531 appellant by prepon- the crimе proved help- was senseless and the victim [T]hat Wallace, less); derance that his State 367, of the evidence cocaine v. 151 Ariz. at impaired significantly addiction his ca- (senseless help- 728 P.2d at 237 murder of pacity to his conduct to the re- conform less, unsuspecting sixteen-year- and twelve- quirements find very of the law. We depraved). old and their mother found be persuasive unrefuted Dr. Nash’s testimo- In cases in which senselessness of the general ny on in dependency chemical helplessness the crime and of the victims and how addiction fosters an insatiable depravi upheld factors as evidence of craving for life-controlling and additional ty satisfying aggravating an circumstance drugs user’s ability the overwhelms 13-703(F)(6), under A.R.S. common § physical to control his behavior. thread, regardless of the manner in which 251, at 154 Ariz. at P.2d 741 transpired, criminal act is that the con The in case shows that al- very especially duct its nature was though history of Stanley had a chemical senseless because it was outside normal abuse, not reflect record does parameters. Moorman, behavioral 154 ability phys- overwhelmed to control his 688; Wallace, 587, Ariz. at 744 P.2d at 151 Accordingly, ical behavior. we do not find 367-68, 237-38; Ariz. at 728 P.2d at in concluding that the trial court erred Knapp, 114 Ariz. at 543, 562 P.2d at 716. prove preponderance did not helplessness Where the of the victim was drug evidence that and alcohol considered, the element common was that problem impaired significantly either his totally victim was unable to defend capacity appreciate wrongfulness against or resist the accused’s actions. ability his conduct or his to conform his Vickers, 546, 1191; 159 Ariz. at 768 P.2d at conduct requirements of the law. Moorman, 587, 744 154 Ariz. at P.2d at Wallace, 151 Ariz. at 688; 368, 728 P.2d at B. Proportionality 238; Knapp, 114 543, at 562 P.2d Ariz. at This focuses review on whether 716. We have also reviewed case which penalty death compared is excessive as noted that fact that the but for the crimes cases, ‍​‌​‌​​‌​​​​​‌‌‌‌‌‌​​​​​‌‌​​​‌​‌‌‌​​​​‌‌​‌​‌‌​​​​‍considering similar the offense adoption had been committed before Stevens, v. the accused. State 158 13-703(F)(8), aggravating A.R.S. another § 599, 728; Ariz. at State v. 764 P.2d at likely circumstance would have been Beaty, 247, 534; 158 Ariz. at 762 P.2d at McMurtrey, v. present. State 151 Ariz. Lambright, State v. 63, 673 P.2d denied, 105, cert. (1986), 726 202 P.2d 480 1 105 U.S. 107 94 S.Ct. L.Ed.2d 530 203 L.Ed.2d We have penalty imposed The death in reviewed other involving cases murder of a each case Based on those cases reviewed. Moorman, family member. case, present in the facts before us (murder at P.2d imposition we find that of the death mother); Knapp, State v. defendant’s penalty or disproportion is not excessive (murder Ariz. at 562 P.2d at 707 ate. children). young defendant’s two We have reviewed cases in which crime was Constitutionality C. found to in espe have been committed aggravating claims cially depraved heinous or manner under “cruel, depraved” factors heinous as set Vickers, State v. 13-703(F)(6). A.R.S. § 13-703(F)(6) in are forth A.R.S. unconsti- (pouring § tutionally vague arbitrarily capri- liquid physically flammable on handi imposed. United ciously States Su- capped jail upheld man in cell a locked as depraved preme specifically has found that our two Gretz the last Court conduct under ler factors); aggravating Beaty, 158 Ariz. at construction of these factors (defendant’s requirements. Wal- meets P.2d at sexual constitutional — Arizona, -, ton v. thirteen-year-old assault U.S. and murder of 110 S.Ct. Lewis v. Jef- child depraved found to be because the — MINKER, -, 3092, 111 ALLEN G. Court of fers, part Appeals Judge, concurring (1990). Although the L.Ed.2d 606 Court dissenting part. aggravating found that our factor Walton cruel, depraved” “especially heinous or is majority’s I with the affirmance concur facially vague, statutory language is where separately of the convictions but write be- vague provide guidance too to to the sen- sentence in this cause I believe the death court, reviewing must look tencing court matter should case is flawed and the be deter- any narrowing to constructions and sentencing. for a new remanded they provide guidance mine “whether some II), (Rossi In State v. Rossi (Emphasis original) in to the sentencer.” (1987), this court re- 741 P.2d — -, 110 S.Ct. at U.S. at resentencing the trial manded for because basis, that the Court L.Ed.2d at 529. On erroneously to take into ac- judge refused given found that have substance we mitigating circumstance: that the count a constructions, through operative terms our capacity his con- defendant’s to conform these constructions are constitu- and that the law was requirements duct to the of —Lewis, Id.; tionally see also sufficient. drug I significantly impaired by addiction. at-, 111 L.Ed.2d U.S. in this judge’s that the trial refusal believe at 622. drug alcohol weigh defendant’s case remaining challenges The to the constitu requires the day use on the of murders penalty death statute are tionality of our in result as Rossi II. A.R.S. same evaluating ag for that it lacks standards 13-703(G)(1)requires judge the trial § circumstances, mitigating gravating and weigh mitigating circumstance that as punishment, unusual it is cruel and capacity appreciate “the defendant’s part in jury takes no the sentenc or to conform wrongfulness of his conduct determination, ing prosecutor that the has requirements of law was his conduct to the impaired in cases the impaired, the discretion to decide which not so significantly but penalty sought, prosecution.” and that the death will be to constitute a defense as uрon capacity defen proof placed is II holds that either the burden Rossi mitigating wrongfulness factors. Each of of his conduct prove appreciate dant to conduct to the presented capacity to this to conform arguments these has been Vickers, a miti- requirements of the law constitutes past rejected. court upon is 1188; gating circumstance. The burden Beaty, 159 Ariz. at 768 P.2d at mitigating cir- 533; prove the defendant to Ariz. at 762 P.2d at of the evi- preponderance cumstance P.2d 464 Bracy, 145 Ariz. at 1229. 154 Ariz. at 898, dence. denied, 474 (1986); Gillies, Ariz. at L.Ed.2d 932 present reveals record in the case 662 P.2d at history long had a that Milo abuse, including of alco- abuse substance are af- and sentences The convictions LSD, hol, amphetamines, marijuana, firmed. undergone previously He had cocaine. counseling. day abuse On substance FELDMAN, V.C.J., GORDON, C.J., began drinking at shootings, defendant MOELLER, J., concur. alcohol, mari- during day used noon and VI, to Article Section NOTE: Pursuant sentencing At juana, and cocaine. Constitution, The Honorable the Arizona proffered numer- hearing, сounsel defense The Honora- D. HATHAWAY and JAMES The trial mitigating circumstances. ous designated to MINKER are consid- ble ALLEN G. of these entitled to judge found five participate aggravating in the deter- against sit on this case and as three eration factors, impairment from alcohol this matter. Justices JAMES but not mination of I the trial court A. HO- cocaine use. believe and WILLIAM DUKE CAMERON testimony erroneously applied psychiatric matter. participate in this LOHAN did regarding insanity refusing drugs to consider alcohol preexisting and/or and a alcohol and cocaine use. mental condition. 13-703(G)(1), fact, specific A.R.S. judge

The trial testimony reviewed the § mitigating may circumstances be experts four mental health who testified episode found in an incapacity of mental during concluded, trial. The trial inadequate legal to rise to a defense. Psychiatric testimony supports the con- clusion that defendant did not suffer experts Four were called as witnesses any mental disease or defect wheth- during the trial. The defense called two drugs er associated with alcohol and or psychiatrists. Bindelglass Dr. testified not that could be said to cause the defen- the defendant committed the homi- Rather, dant to act as he did. the conclu- having cides psychotic while a dissociative appropriate sion is that defendant was reaction. He testified that the defendant’s control of his mental faculties sufficient ability fully appreciate going what was to have refrained killing from his wife on and to control his behavior were mark- daughter. simply and He chose not to so edly impaired. He also observed the defen- refrain. having dant schizophrenic symptoms as paranoid with delusions and hallucinations. view, my problem In basing with He schizophrenic symptoms described the proffered conclusions as to the mitigating as drug consistent with chronic abuse. He psychiatric circumstance on the testimony testified the long history defendant had a is that the testimony was not directed at drug of alcohol and abuse and that such the effect drugs of alcohol and but at men- long-standing produces аbuse “a certain de- tal illness. The pleaded defendant had in- gree dysfunction.” sanity as a defense killings. The Garcia-Bunuel, Dr. psychia the other psychiatrists three psychologist one trist, Stanley testified that had been an testified jury only at the trial and not at drugs, abuser of alcohol and other and at sentencing hearing. Under Arizona the time of the offenses was under the law, voluntary intoxication is no defense to alcohol, marijuana, influence of and co a Neal, 93, 98, homicide. State v. testimony caine. His was that did Therefore, P.2d legal not meet the insanity test of under effect of substance day abuse on the of the M’Naghten1 He testified he believed killings something was not defense counsel possibility there was a acted would develop. be inclined to In fact the reaction, having while a dissociative but jury instructed the that: unlikely. that it was In connection with this definition of in- sanity, interject let me here that a defen- experts The by first two called dant cannot legally Stewart, be found insane State Dr. psychologist. was a when, voluntary because of his prosecutor use of The asked Dr. Stewart whether drugs, alcohol and/or temporary he has a he opinion had an as to whether the defen- episode incapacity dant, of mental crimes, so as to be on the date of the was suffer- right wrong ing unable to know from or to from a mental disease or defect. Dr. quality not know the nature and of his Stewart my opinion answered: “It was Moreover, person was, acts. cannot be he and that the nature of that disease legally experiences found insane when he or defect probably multiple would be temporary episode incapacity drug of mental dependency, including alcohol and so right as to be unable to from drugs know other various that he had been tak- wrong quali- or not ing know the nature and period for an extended of time.” The ty of episode prosecutor his acts when this is caused then asked Dr. opin- Stewart his voluntary a combination of the use of ions as to whether the defendant under- Cano, 37, 41, M'Nagkten insanity 1. The test for criminal whethеr Case, the defendant understood the nature M’Naghten's 10 Clark & Fin. quality of his actions and he whether un- Eng. Reprint 718 doing wrong. derstood that what he was was quality shootings stood the nature and his actions and his actions to conceal II, whether he understood his actions crimes. Rossi two witnesses—one wrong per M’Naghten. neighbor girl- He answered Rossi’s and one Rossi’s affirmative, although he added that appear in the un- friend —testified Rossi did not Stanley’s understanding would have been der the influence or after before he not under the influ- clearer had testimony crimes. There that Rossi ence. rationally just acted the crime. He after neighbor hap- in detail what related State, expert The second called up pened. things He did to cover Gerstenberger, psychiatrist, Dr. stated crime, plate removing like a license opinion in his the defendant under- fingerprints. quality nature and of his actions stood the capable understanding that he mitigation for favor wrong. his actions were Dr. Gerstenber- mental health doc- Rossi came three ger any opinion аsked for re- was never cocaine habit. tors—and Rossi’s known drug garding whether alcohol and use on mitigation for Evidence favor of before, question, impaired in day the or the experts, health comes from the mental capacity to con- defendant’s conform his drugs, long from his term abuse of duct to the law. Both Drs. Stewart and Stanley con- from statements made. When Gerstenberger they testified that did not killings police, the to the he stated fessed the defendant was a dissociative believe my gourd.” At the he was “drunk out of shootings. the time of the state at sentencing hearing, the defendant’s father policeman said the testified that a local finding support Rather than the that the “stoned out of his mind” on defendant was capacity impaired, defendant’s was not it night shootings. the Reverend appears expert testimony the —where hearing sentencing the as Jones testified at it was directed to substance abuse—does cocaine quantities to the of alcohol and justifies opposite. The fact that it used. had insanity jury’s rejection of an defense is an competing, entirely separate, and even II, court, reviewing In after Rossi question. side, concluded, “Nei- the evidence for each II, appellant’s nor the State’s In this court had it ther Rossi before a reproach.” 154 Ariz. at day had said earlier on the evidence is above defendant who planned go apply P.2d at 1229. I would of the crime that he to the pretext selling primary But the victim’s house under the same to the instant case. error, view, typewriter anyone got attempting apply and kill in his my who is house, go way. opinions insanity Rossi did to the victim’s issue experts’ on the sale, pretended then fol- mitigation. They did work a involve question to the Moreover, into his Rossi lowed the victim bedroom. questions. different factual blackjack and then long-standing hit victim with they sub- verified shot him twice in the chest. The victim influ- being stance under the abuse and his Rossi, pleaded my “You have then with night ence on the of his crimes. me, money, you you shot what more do findings, In the trial making his gun Rossi then leveled his at the want?” stated, also victim and fired a shot into his mouth. report, presentence Reverend [I]n cold, gave Rossi’s crime evidence of a him defendant told Jones relates the design drug issue. deliberate —absent con- period over defendant a six-hour appear crimes contrast to be only sumed four to six wine coolers acting ini- lengthy prior thought, without is eight lines of cocaine. This to ten passion. tially out of marital feud and substance, simply enough of either impair person separate, combined parallels mitiga- There are between period sufficiently to over a six hour majori- The tion evidence the two cases. requirements of subsection opinion points Stanley’s appear- out meet ty here (G)(1). night ance to a store clerk the of the two expert testimony no as to such a There was addition, what Reverend conclusion. man, DANO, single Franklin pre-sentence to at the hear-

Jones testified man, Huebl, Paul a married ing was that within six hours of shoot- Plaintiffs/Appellants, defendant, him, according ings, drank six-packs four of wine coolers and sniffed COLLINS, capacity Mari in his as Tom eight to ten lines of cocaine. Attorney; copa County and Richard G. surrounding facts of these homicides Godbehere, capacity Maricopa in his as unlikely defendant show that is Sheriff, County agency of the State formed the intent to kill at the time his Arizona, Defendants/Appellees. children car. is wife and entered the It defendant, No. likely more that the who had an CV-90-0214-PR. wife, ongoing argument with his formed Supreme Court of Arizona. suddenly, upon being

the intent to kill told April that she would leave him. Given this fac- background, the influence of alcohol tual prior shootings use cocaine insignificant I it is not an matter. believe Vacating ORDERED: dated the order making fact-finding essential in deter- January accepting review in this regarding impairment mination substance having improvidently grant- matter as findings existing

that the be based on the ed. testimony ‍​‌​‌​​‌​​​​​‌‌‌‌‌‌​​​​​‌‌​​​‌​‌‌‌​​​​‌‌​‌​‌‌​​​​‍given particularly as to this is- sue. The record this case shows for re- FURTHER ORDERED: Petition = drug day ques- alcohol and on the abuse DENIED. view impair Stanley’s ability tion did to conform Justice Moeller dissented the deci- light his conduct to the law. In of the trial accepting sion to vacate the order review. judge’s finding mitigating other five existed, ag- circumstances and that three existed,

gravating circumstances the refus- judge weigh

al of the trial this additional

circumstance cannot be considered harm-

less. While neither alcohol intoxication nor co- any

caine intoxication is in sense a defense 167 Ariz. 535 actions, to the defendant’s and while this Suspended In the Matter of a Member may necessity society case illustrate the Arizona, of the State Bar of Susan to defend itself from the effects of alcohol CROMER, Respondent. Kelly abuse, drug the consideration of alco- hol and cocaine use does bear on the issue No. 88-0834. Comm. the defendant should receive whether Supreme Court of Arizona penalty. the death I remand this would Disciplinary Before the Commission. trial matter to the with instructions defendant, taking to resentence the into April testimony account the of the effects of Phoenix, Turney, Harriet L. Bar Counsel. ability defendant’s substance abuse on impulses to control his and actions on the JUDGMENT OF CENSURE

day murders. having This matter come on for review Disciplinary Commission of the before Arizona, Supreme having duly Court of decision, timely appeal rendered its and no filed, having therefrom

Case Details

Case Name: State v. Stanley

Court Name: Arizona Supreme Court

Date Published: Feb 7, 1991

Citation: 809 P.2d 944

Docket Number: CR-87-0289-AP

Court Abbreviation: Ariz.