State v. Trostle

anonymous tip, day held that the as corroborated was to occur later that and that four work, by independent police people attempting exhibited suffi- from Ohio were Tucson reliability provide cient of purchase marijuana. indicia to reason- to The court held that suspicion investigatory stop. able to make the tip only proved where the details as to exist- However, importance the court stressed the ing facts and no details toas the contained of the nature of the actions, corroborated facts: suspects’ future there was no suffi- “[wjhat important was the caller’s reliability support stop cient indicia of to the behavior, predict respondent’s to the suspects’ Bullington, vehicle. future because it demonstrated inside information— Ariz. at 795 P.2d at 1297. special familiarity respondent’s with af- CONCLUSION fairs.” Id. The court found no indicia reliability as to the corroboration of informa- ¶ 14 provided po- The information to easily tion which was current and available to anonymous tip only lice contained public, such as the fact that the officers neutral, non-predictive information about the precisely matching found a car the caller’s defendant and his activities and was itself description building. in front of the described provide suspicion insufficient to reasonable information, respect With to that the court for the stop. The corroboration did not suffi- “anyone ‘predicted’ noted that could have ciently reliability tip substantiate the that fact presum- because it was condition Thus, support investigative stop. to ably existing at the time of call.” Id. The police suspicion officers lacked reasonable tip ensuing court held that the and the cor- support stop the vehicle and the trial court sufficiently sup- roboration were reliable to granted should have defendant’s motion to port investigatory detention because the conclusion, suppress. Because of this it is police were able to corroborate the defen- unnecessary to address defendant’s addition- dant’s future behavior: al contention that he was arrested without probable police cause general public when the officer way would have had no him, stopped keep him ordered his hands knowing respondent shortly would wheel, approached gun car, on the him with building, get

leave the in the described drawn. The memorandum decision of the Dobey’s and drive the most direct route to vacated, appeals court of defendant’s con- only Motel. Because a small number of reversed, victions are people generally ease is re- privy are to an individu- pro- manded to the trial court for further itinerary, police al’s it is reasonable for ceedings opinion. consistent person with this believe that a with access to such likely information is to also have access to ZLAKET, C.J., JONES, V.C.J., reliable information about that individual’s MARTONE, JJ., FELDMAN and concur. illegal activities. Id. We do not believe that Alabama v. White tip

covers this case. The here contained no defendant,

private information about nor was any prediction there of future events that 951 P.2d 869 Thus, police. were un- corroborated Arizona, Appellee, STATE Gates, like the Draper situations White, here there was no indication that the Anthony TROSTLE, Appellant. David person privy came from a information affairs, opposed defendant’s mem- No. CR-94-0175-AP. general public ber of the who observed the Arizona, Supreme Court of Thus, traveling. direction the defendant was En Banc. tip it was not reasonable to believe that the Dec. 1997. was reliable. ¶ Similarly, Bullington, (App.1990), 795 P.2d 1294 officers tip

received a 911 that a narcotics transaction

6

8

thought intended to kill the this meant Jewitt owner of the truck.

Knauss, part-time employee of an inven- a tory night company, signed out of work that Woods, Attorney Grant General Paul J. p.m. at 11:48 and exited the mall. Defendant McMurdie, Counsel, Appeals, Chief Criminal approached a stated that Jewitt her with Rory Attorney Whipple, L. Assistant Gener- shotgun getting as she was into sawed-off Phoenix, al, Appellee. for her truck. He ordered her to move over and Udall, Udall, Tucson, Cooper Laura E. & open passenger door. Once Jewitt had Appellant. vehicle, got control of the defendant into the weapon to the driver’s seat. Jewitt held the OPINION of the victim’s head while defendant back drove to an isolated area outside of town. ZLAKET, Justice. Chief There, took her into desert Trostle, Defendant, Anthony in- David clothing. and forced her to remove her murder, charges degree dicted on first a.m., At tribal 12:35 Tohono O’Odham assault, robbery, kidnapping, armed sexual Toyota parked police officer observed the trial, jury Following and theft control. alongside stopped Mission Road and to inves- guilty him of all found but assault. Jewitt, tigate. passenger seated in the front murder, court sentenced him to death for the seat, him told the truck had broken 14-year prison to consecutive terms for gone help. down and his uncle had to seek robbery kidnapping, armed and to a Having satisfied himself that the vehicle was 10-year concurrent term for theft. au- This stolen, search for the the officer left to appeal jurisdic- tomatic followed. We have Thereafter, joined de- fictitious uncle. Jewitt Const, VI, 5(3), § pursuant tion art. fendant, had tied hands and who Knauss’s 13-4031, 31.2(b), and Rule underwear, allegedly ankles with her R.Crim.P. exclaimed, ready get go.” “Time Jewitt said, reported is then to have “We’ll do it FACTS way style. way, That it’ll look execution reported missing Ellen Marie Knauss was According like we didn’t do it.” to defen- 21,1993. hours, September on her Within dant, clothing, while Knauss kneeled on her Toyota spotted in 4-Runner truck was 12-gauge shotgun into the Jewitt fired the parking apartment complex. lot of a Tucson of head. back her up questioned Police set surveillance and var- separately tried as an adult and Jewitt was individuals observed near the vehicle. ious murder, guilty degree armed found of first They eventually obtained the names of two by robbery, kidnapping, and theft control. suspects 14-year-old Jack Jew- —Trostle imprisonment with- He was sentenced to life apprehended itt. Defendant was the follow- Following possibility of release. defen- out ing evening, conflicting inculpatory made convictions, dant Trostle’s the trial court statements, police and led to a remote desert aggravating two factors —that there found body later area where Knauss’s was found. expectation pecuniary gain, A.R.S. was an defendant, According to Jewitt had wanted 13-703(F)(5), killing espe- § and that the help sought a four-wheel drive truck and heinous, cially depraved, cruel or “jacking” p.m. one. Around 6:00 on Sun- 13-703(F)(6). Believing mitiga- day, they parking September went to call le- tion evidence was insufficient to for Mall, lot of the Tucson where Jewitt first niency, judge him to death. sentenced picked out a blue Suzuki. When its owner shopping mall came out of the escorted TRIAL ISSUES officer, however, security Jewitt set his VENUE Toyota. waiting, sights on Knauss’s While said, it, just “carjacking” murder received exten- allegedly he “Fuck we’ll do this This coverage. argues that way.” police he sive media Defendant all told defendant, however, erything submitted denying his motion the trial court erred “excep- pretrial change that these two articles were of venue because reveals for pervasive largely and unfair that information in the publicity was so tions to the factual Bible, presumed. Al- have been prejudice great reports.” should of the news bulk jurors Furthermore, ternatively, claims the were actual- he P.2d at 1167. Ariz. at ly prejudiced. jurors prospective on although 31 of 34 crime, knowledge of the panel had some ruling A court’s on a motion trial few, if majority they vast stated remembered change of venue will not be disturbed on for any, Reviewing the record as details. prejudicial discre appeal absent a abuse of whole, “utterly the trial was not we believe Salazar, 399, 406, 844 tion. 173Ariz. State prejudice corrupted” by publicity such that (1992). prejudice For to be P.2d presumed. id. at must be presumed, the defendant must show “that at 1168. unfair, publicity prejudicial, was so so pervasive give and so that we cannot prove prejudice, actual the defen To jurors’ credibility during voir to the answers jurors formed dant “must show that the have affirming their to decide the case dire concerning guilt preconceived [his] notions Bible, fairly.” lay they cannot those notions aside.” and that (1993). 1152, 1168 This burden is ex Chaney, 141 Ariz. tremely heavy rarely at met. Id. appropriate inquiry The 858 P.2d at 1167. pretrial publicity, effect of focuses on the Defendant documented 65 television knowledge mere of the case is insufficient to newspaper and 15 articles dissem broadcasts juror. panelists disqualify a Id. Of the 46 prior inated the Tucson area to trial. For coverage, questioned about media 8 ex ty reports of the occurred within the first TV guilt pressed regarding views defendant’s following disappearance. week victim’s immediately Most of and were dismissed. Although only most described the facts of the remaining nothing those recalled little or crime, highlighted increased mall several reports. Additionally, two of the the news protection shoppers and how could avoid be jurors knowledge who sat on the case had no view, ing general report victimized. our offense, and all indicated ing security public of the need areas solely the issues on the basis of could decide vulnerability and of citizens’ to random vio presented the evidence at trial. The court’s “attempt [by lence falls short the me change denial the motion for of venue was whip up hysteria passion dia] within its sound discretion. See Bible, community.” 175 Ariz. at Eastlack, say 1168. We cannot that this cover age pervasive. remaining was unfair or stories, only days broadcast on over a 3- argues that the trial Defendant also period, month focused on whether Jewitt inadequate court conducted voir dire. He Unquestionably, as an would be tried adult. judge probed the claims that the should have publicity passage the diminished with the of jurors’ knowledge prospective and biases time; the last broadcast aired several TV stemming pretrial publicity by utilizing from the of trial. months before start individual, questionnaires, written as well as newspaper Two of the articles contained group, private examination at the small or prior acts not admitted at evidence of bad jury began, judge the bench. When selection one, as trial. In defendant was described stated: history molesting having had a children. going asking I to for a show of am be other, prosecutor In the was interviewed may people they have hands of that think regarding an unre- defendant’s conviction for about this case some seen or heard lated car theft two weeks before the trial of if you I what form. And then will ask began. that this case He commented you may or heard displayed anything have seen earlier crime a similar motive as it, is, something you carjacking question. A ev- about that have seen review of 12 TV, prosecu you argues it on read about it in Defendant that the

about have objectively newspaper. explanations verifi tor’s were Cruz, able, required by 175 Ariz. talking you I am I Now when to don’t 395, 399, 1249, 1253(1993), 857 P.2d and thus you exactly want to tell me what details Cruz, disagree. not race neutral. We say might you you remember what because juror prosecutor Hispanic struck a because jurors impact an on the other have one of “weak,” “poor she had he believed con may not have about who seen or heard him, with would be tact” and “felt she led.” I saying? See what am I don’t case. want subjective purely Id. We held that such im you say to what effect these other [sic] juror’s pressions qualities of a had to be just jurors. keep your respons- So kind of objective coupled support with to overcome a my you questions, to if es tailored would. prima showing facie of discrimination. Id. object limiting Defendant did not to this in- validity examining Without the continued requested no struction and at time further light Supreme Cruz the U.S. Court’s any particular juror. inquiry of Other than Elem, recent decision in Purkett v. more 514 initially asking conducted voir dire be 1769, L.Ed.2d 115 S.Ct. 131 834 U.S. counsel, objections the defense no made (1995), say participation we can on a scope adequacy pro- or of the selection type prior acquitting jury not the of “whol is cess. subjective” ly implicated therein. reason person The trial each court examined Rather, objective facially it is a basis for a memory exposure, about his or her media peremptory challenge, to race unrelated details, keep open mind. It Castillo, gender. See State v. 156 defendant, questions requested also asked (App.1987); Garza v. ultimately passed Although panel. who State, (Tex.App.1987). 739 S.W.2d might the court a more ex have conducted expressed Similarly, prospective juror’s a re techniques, de using tensive voir dire other hardship luctance to serve due to financial object precludes fendant’s failure to legitimate peremptory a rationale for Bible, claim this basis. 175 Ariz. at on Sanderson, strike. See State v. aside, at 1173. Waiver court 534, 540, (App.1995). did not abuse its discretion. None of the jurors exhibited a mind. All closed stated footnote, In a defendant also could follow the court’s instructions per prosecutor’s that two complains of the and decide the case the evidence. Id. at on emptory gender strikes neutral. were not P.2d at 1175. by failing raise This claim was waived it Cruz, Ariz. at the court below. BATSON CHALLENGES Additionally, 1252. the issue P.2d at has prosecution per two exercised argument presented without and is been here only Hispanic emptory strikes remove the precluded. therefore Id. at P.2d at panel. made members Defendant 1255. challenge, Batson 476 U.S. S.Ct. (1986), and the L.Ed.2d CAUSE CHALLENGES FOR court, by requesting explanations for the strikes, implicitly prima challenged for that a facie cause found one showing panelists during of racial had been three voir dire and seat discrimination 18.4(b), Hernandez, juror. ed trial Under Rule made. See R.Crim.P., juror (App.1991). cause excuse a exists replied jurors ground prosecutor The that one of the there reasonable believe “[w]hen jury a fair previously [he she] criminal or cannot render and had served on a trial guilty impartial not and the other verdict.” Because the court returned verdicts juror’s getting paid firsthand a demeanor and expressed had concern about not observes credibility, ruling not be disturbed selected. court denied the its will if he were motion, finding a clear of discretion. State v. explanations to be “ethi absent abuse Lavers, 376, 390, jurors.” Ariz. P.2d excusing two 814 347 cal reasons for those (1991). Moreover, fectively Kemp, v. establishing done so here. See State the burden of 1281, 1286, 52, 57, cert. juror impartial Ariz. 912 P.2d that a was not fair and rests — denied, —, party challenging the court’s failure 117 S.Ct. with the U.S. strike. Id. L.Ed.2d 68 argues that the trial Defendant Lastly, juror Ahl defendant claims by denying his court abused its discretion have been dismissed. On strom should Douglas, venirepersons request to excuse trial, requested a day of Ahlstrom second Lindahl, Douglas once sat and Gibbs. had judge. morn private meeting with the That jury type on a that convicted a similar stopped by workplace and ing, she had her case, sound and defendant believed his voice by supervisor that Trostle was a was told describing the incident. ed “bitter” while they up employee. Together looked former personal experiences had Lindahl Gibbs juror employment record because the violent crime that defendant feared with there and wanted to know when he worked responses. Upon absences). would evoke emotional In why go (repeated he was let however, jurors questioning, all three indicat counsel, judge and both chambers with the impartial, be fair and ed could said, seeing him on “I don’t recall Ahlstrom presented has no evidence to the defendant you job anything but I did want contrary. prejudice pre Because will not be may to him in know that I have said hello affirmatively appear from sumed but must that she was passing____” She also asserted record, the court did not err. See State information, not influenced would Reasoner, 377, 384, v. 154 Ariz. jurors, could re- discuss it with other 1363, 1370(App.1987). judgment until the of trial. The serve end subsequently re- court denied defendant’s Defendant further asserts that quest her At the close of the for dismissal. Douglas and Lindahl should have been evidence, randomly Ahlstrom was chosen as they gave ambiguous because re stricken an alternate. Douglas sponses pretrial publicity. about re right argues that his to a fair Defendant sponded, guess,” if “I when asked he could Ahl- impartial jury because was violated mind, keep open an and Lindahl said he did trial court strom not excused. While the publicity not “believe” the would affect his justified certainly in strik- would have been do the Because defendant same. admonitions, ing juror violating see for its challenge grounds in the did not on these Cook, court, arguments trial are waived. Enci (1991), to remove her was not the refusal State, nas v. 26 Ariz. 221 P. Ahlstrom assured abuse of discretion. (1923), grounds, on other overruled trial the court that she had not discussed the Huerta, (1993); 175 Ariz. 855 P.2d 776 supervisor opinion nor formed an with her Bravo, v. State regarding appears the case. It that she was event, (App.1981). reporting previ- about her more concerned juror’s claims are meritless. A assurance of ously to defendant. The unknown connection impartiality need not be couched absolute that she could be fair court satisfied itself E.g., Clayton, terms. State to estab- impartial, and defendant failed (1973) 592-93, (juror 725-26 lish otherwise. instructions); try” “would to follow Poehnelt, also claims that (juror could be (App.1985) “believed” he jury may received extraneous have harmful impartial). fair and that the court evidence from Ahlstrom and infor whether such argument and the first should have determined

Without not, the verdict. He did challenges the dis mation influenced appeal, time on however, evidentiary hearing nor request an interrupted charge of a venireman who had Any trial. for either a or new process to inform the court that move mistrial the selection tainted extrin jury that the verdict was system. De claim he did not believe Moreover, was thus waived. and has ef- sic evidence fendant waived this issue below 14 “Answering ques- prejudice speak attorney. has from with an

defendant failed to show misconduct, juror’s police properly give is not a after the Miranda and this case tions warnings presumed in which it can be from the facts. constitutes a waiver conduct.” Miller, Tapia, v. Ariz. 875 P.2d v. 159 Ariz. 767 P.2d State 178 State Cf. (1994) 531, 538, (1988); (third-party relat- v. Ariz. Knapp, communication 8 State 114 (1977). Moreover, directly to absent ed ultimate issue defendant’s 562 P.2d innocence). suspect is guilt partic- suggesting or did not circumstances that a Ahlstrom deliberations, fully ipate rights, her information aware of there is no not his pertained only prior obligation repeat Henry, to work his- to v. defendant’s them. State 569, 577, (1993); tory, nothing suggests in Ariz. the record she 863 P.2d Gilreath, jurors. knowledge other shared with (1971)(12- See, 277, 289, 385, gaps v. be- e.g., Spears, State 184 Ariz. and 36-hour (1996) (finding interrogations). preju- no does not tween Defendant dice, reference, find, part, anything in because record did not show and we cannot fully jurors exposed suggesting not whether were to extraneous the record that he was information). ques- in- rights during failure to entire trial court’s aware of his sponte tioning period. quire sua if the verdict had been not tainted was error. Defendant asserts that his also voluntarily. Be were not statements made ADMISSION OF DEFENDANT’S STATE- prima cause confessions are facie involun MENTS showing tary, the state has the burden arrest, headquarters police following At his by preponderance of the evi voluntariness given warnings. Af- defendant was Miranda Scott, dence. State indicating rights, ter he understood his (1993). must The trial court agreed questions he and subse- answer totality at the to decide look circumstances quently taped made three statements. The police over whether conduct constituted began p.m. first at 6:51 It ended over two reaching. inquiry highly Id. is Because this agreed accompany hours later when he fact-intensive, finding will not be court’s to the Mall and show them detectives Tucson absent manifest error. disturbed clear and parked. truck where the had been While Lopez, State transit, questions, he more eventu- answered 1078, 1084 ally admitting that the vic- he knew where support involuntariness of his body was end- tim’s located. This statement claim, points the absence of defendant p.m. they ed at 10:47 when reached Mission during interrogation, the failure to counsel began searching Road detectives repeat warnings, his lack of Miranda hours, he re- desert. Over next two noted, however, sleep. already As food police allegedly slept. mained car and freely questions, request he answered never a.m., following At 1:23 their return to head- attorney, stop or ed an did not ask quarters, interrogated defendant detectives Furthermore, a break. the detectives take questions in- another 15 minutes. Their they sleep gave him coffee and him while let whether had ever asked for a cluded he Although nev for the victim. searched lawyer or indicated that he did not want to food, him er offered at no did time questions, answer and whether he had been something hungry request he was or indicate anything He an- promised or threatened. to eat. in the negative. swered each argues argues Defendant also that Miranda explicitly improperly were induced with

was violated because he never statements leniency. invol rights warnings A promises waived his and because confession during untary the 7- if it was in reliance on repeated any point not made were at implied promise. v. Ama disagree. express or plus interrogation. hours of We answering ya-Ruiz, Defendant did hesitate on two com- stop Defendant focuses

questions and no time asked was agreed to show them where Knauss interrogation. In the during the ments made first, the killed. encouraged him to tell detectives talking they to truth because were Jewitt clearly the two did not react to Defendant giving you opportunity to

well: the “We’re prom if he believed them to be comments as Okay? Be- [against Jewitt]. win the contest ises, they See induce him confess. nor did bigger biga contest ... this is a cause it’s 571, 579-80, Walton, 159 Ariz. you’ve in than ever been before.” contest (1989), on other 1025-26 aff'd said, mall, a detective en route to While 110 S.Ct. grounds, 497 U.S. you all we “Help us out the can. That’s best (1990). contrary, defen On the L.Ed.2d help us out and ask. Be honest with us and cooperation apparently was motivated dant’s long run.” it’ll work out guilty conscience than either more Furthermore, de remarks. the detectives’ surface, appear these two remarks On prom admitted that he had not been fendant some imply that defendant would receive Having all of the anything. considered ised exchange coopera- for his type of reward circumstances, say cannot surrounding we they need not determine whether tion. We finding erred in voluntari that the trial court however, promises, because the amounted to ness. clearly that he faded to act record establishes ADEQUACY OF JURY INSTRUCTIONS reliance on either one. alleges trial error Defendant interrogation, defen- At the outset of the give voluntary intoxi court’s refusal a dant claimed that Jewitt had “borrowed” former A.R.S. 13- cation instruction. See mall. truck from a Mend Within jury party A is entitled to a instruction 503. hour, acknowledged first half he that any reasonably supported by the theory on Toyota “probably” had stolen been Jewitt LaGrand, evidence. State knowing anything it. but denied about Soon (1987). 1066, 1070 In his state thereafter, they him that detectives reminded ment, two 40- defendant said he consumed Jewitt, questioning also who would like- were 2- liquor malt over a ounce bottles of Vh- thief, ly claim was the and told defendant period and smoked a “hit” or two of hour they only person’s him could believe one Mall, marijuana walking to the Tucson before honest, story. urged him They then to be Knauss was abducted. some 6 hours before truth, tell the and “win the contest” because pre of intoxication was No other evidence they “liked” him more than Jewitt. Defen- sented. however, dant, denying continued knowl-

edge of the theft. proof consumption of alco “Mere instruction; hol insufficient for an there interview, an into when

Over hour could have had must be evidence alcohol falsely detectives claimed had found negate an on defendant so as to effect body, finally Knauss’s defendant admitted Murray, element of the crime.” State v. “jacking” breaking into had occurred. While Defen tears, only bystander he insisted he was although the alcohol made dant admitted exactly hap- again knowing denied what tired, doing him he knew what he was when pened. He was also able he committed the offenses. By it would all the time he was assured about the crime to recall detailed information out,” already had confessed “work defendant yards police to within 100 led begun lying in wait with Jewitt and had desert location where the victim’s remote recounting some details of the abduction. body eventually found. was alleged promise after this of lenien- Yet even Reid, 560, alone re- cy, he maintained that Jewitt was A determination stealing killing sponsible for the truck and its the offense would intoxicated at the time of only police persisted It was after the owner. pure speculation. have been on based might questioning him about where Jewitt body also claims that he was disposed that he have of the victim’s on entitled to a lesser-included instruction finally admitted the extent of his involvement Valdez, imprisonment object though by failing unlawful even he did to at trial. State (1989). request 313, alleges not one. He that the absence 160 Ariz. 770 In P.2d 317 event, fundamen- of such instruction amounts to requires none reversal. may jury tal error because have used argue “Opening statement not a time to is kidnapping predicate as the offense for felo- may be the inferences conclusions ny murder. yet drawn from evidence not admitted.” determining In if to evidence is sufficient (ci- Bible, 602, 175 Ariz. at at 1205 instruction, require a lesser-included “the omitted). prosecutor’s The inflamma- tation rationally jury test is ‘whether the could fail tory characterizations of defendant were distinguishing find the element of the plainly improper. evidence The substantial ” Detrich, greater offense.’ however, guilt, acquit- his of combined with (1994) (citation 1302, P.2d 1305 assault, any claim that tal of sexual belies omitted). case, inquiry In this the crucial is deprived fair the misconduct defendant of a imprisonment ac- whether unlawful was trial. id. companied one of the enumerated mental invited and Comments that are statute, including kidnapping in the states prompted opposing arguments counsel’s death, injury physical intent to “inflict or a improper if are not are reasonable victim, on sexual offense or to otherwise Arre pertinent to the issues raised. State v. felony.” aid in the commission of a dondo, 141, 163, 13-1304(A)(3); Detrich, Ariz. at see (1974). Our review of the record indicates P.2d at admitted 1305. Defendant family that the references to the victim’s strongly knowing suspecting that Jewitt expert failure call an wit to defendant’s kidnap planned to and murder the truck’s squarely category. fall into There ness owner, and he alone her hands and bound fore, inappropriate. neither was ample feet. There was also evidence of his stealing aid in The intent the truck. final alleged The instance of mis provide court’s failure to a lesser-included during occurred conduct the state’s rebuttal imprisonment on instruction unlawful was to defense counsel’s intimation that detec error, alone not let fundamental error. tives, through questionable interrogation put techniques, words in defendant’s mouth. Finally, argues that he argued prosecutor only two individ The premeditat entitled to an was instruction on knew detailed of the crime: uals information offenses, and its ed murder lesser-included one is “One is Jack Jewitt and the other though that allegation even was abandoned right asking you sitting here the table not West, during trial. through lawyer.” him to hold accountable (1993), trial 862 P.2d 192 we held that the Although this an im statement constitutes obligation jury court has “no to instruct the permissible comment defendant’s failure on prosecutor’s on theories withdrawn testify, say we cannot it contributed to the Id. at P.2d at 201. discretion.” overwhelming jury’s in view verdict of the attempt distinguish Defendant’s West guilt within evidence the context misreading on a of the facts based Any it was made. was harmless which error no case. We find error. beyond Chapman v. a reasonable doubt. 18, 23-24, California, 386 U.S. 87 S.Ct. PROSECUTORIAL MISCONDUCT 827-28, 17 (1967); L.Ed.2d 705 v. Scar alleges multiple Defendant instances borough, 110 Ariz. prosecutorial that he contends misconduct deprived him a include fair trial. These coward, liar, calling pervert, rapist, him a OF GRUESOME PHOTO- ADMISSION and, statement, opening murderer GRAPH closing argument, commenting on his failure witness, argues expert that a crime scene to call an the loss family, depicting lying face down right photo, her to remain victim victim to and his ankles, Defendant waived all of these claims and bound at hands and silent. verdict, found special the trial court photographs In its improperly admitted. Relevant unduly The that: “1. inflammatory beyond neither nor a reasonable doubt that are killed, or 2. The v. Gul- the one who prejudicial are admissible. State Defendant was brandson, in- not killer but Defendant was the actual exhibit, only kill, full- The which was the or 3. Defendant was tended to evidence, major body photograph participant victim actual killer but was a de- up killing was relevant to corroborate defendant’s to exhibited in acts that led the account of how she was murdered. life.” On its tailed indifference to human a reckless gruesome body arguably the Although face, listing since this alternative of Enmund/Ti- days, the in the desert for appears improper; had been several son factors photo her the fatal vic- consistently shows neither face nor shot the claimed that Jewitt probative find that its val- to head wound. We is no in this record tim and there evidence any danger preju- outweighed ue unfair lan- Although generic of indicate otherwise. verdict, special dice. in a guage should be avoided previously that it is the sub- we have held OF THE SUFFICIENCY EVIDENCE label, finding, not its stance 59, Ariz. Runningeagle, counts. judge the Defendant claims that 169, 64, ver wrongly denied his motion for directed theft, robbery, kidnapping, and dict on the Here, specific make the court went on to disagree. degree charges. first murder We disjunctive findings in support factual of its acquittal only judgment appropriate A of is own conclusions. These included defendant’s there is no evidence to when “substantial help that he to steal the statements intended 20(a), a conviction.” warrant Rule beginning from its owner truck and knew case, including R.Crim.P. Evidence victim, killed, up that he tied would be palmprints statements on defendant’s shot, being to prior that he told her kneel to truck, clearly provided support for the quiet kept her when and that he the desert verdict. in- police stopped officer to the reservation beyond a vestigate. These facts establish SENTENCING ISSUES major a reasonable doubt defendant was case, every capital must inde- this court in the acted with participant murder and pendently establishing review the facts to reckless indifference human life. presence miti- aggravating or absence AGGRAVATION gating circumstances to if the determine § penalty appropriate. 13- death A.R.S. murder was The trial court found that the 703.01(A). § pecuniary gain, for A.R.S. 13- committed 703(F)(5), heinous, cruel especially an ENMUND/TISON 13-703(F)(6). manner, depraved or Because defendant was convicted murder, felony we must whether he ascertain Pecuniary Florida, Gain eligible. In is death Enmund v. S.Ct.

U.S. (F)(5) finding on The court its based (1982), States Su L.Ed.2d United stolen, actually the truck the fact that was preme felony held that a murder de Court theft, participation in the defendant admitted penalty only could receive the death fendant killing purpose was and his stated kill, killed, actually if attempted to he stealing the truck and eliminate facilitate subsequent The to kill. intended Court’s argues that as a witness. Defendant victim Arizona, decision in Tison 481 U.S. prove beyond a reasonable the state failed 157-58, 107 S.Ct. 95 L.Ed.2d he, Jewitt, rather wanted to than doubt (1987), rule, capital expanded allowing disagree. or kill the truck Knauss. We steal punishment a ma where the defendant was (F)(5) may jor felony aggravating be es underlying in the factor participant showing human that the defendant’s reckless tablished acted with indifference motivated participation crime was life. gain. being argues the state expectation pecuniary shot. LaGrand, 734 P.2d prove beyond a doubt failed to reasonable rob, a defendant comes to “When that he intended or foresaw the victim’s men- expects pecuniary gain and this desire [he] suffering. tal He also claims that the court infects all other conduct of the defendant.” erroneously imputed acts and mo- Jewitt’s added); (emphasis Id. see also State v. analysis. sentencing him in its We tives to Greenway, 170 Ariz. 31 again disagree. (1991). Thus, significant consideration is killing part whether the overall Cruelty if exists the victim con scheme, robbery opposed being unex sciously experienced physical pain or mental Greenway, 170 Ariz. at pected or accidental. Kiles, death, prior 31. (1993), and the that he and Defendant admitted defendant knew or should have known that Jewitt, shotgun, armed with a went to a suffering Apelt, would occur. State v. 176 purpose stealing shopping mall for the sole of 369, 376, 654, Ariz. 661 fact, they picked a truck. out a vehicle anguish uncer “Mental includes victim’s opportunity to and waited hours for the rob Kiles, tainty ultimate 175 about her fate.” acknowledged that its owner. Defendant (citations Ariz. at 857 P.2d at 1225 omit delay reporting

victim killed to was ted). witness, only theft and to eliminate the an act Moreover, benefitting perpetrators. both Unquestionably, ex- the victim suffered kill announced that would her Jewitt According treme mental distress. to defen- style execution so “it will look like we didn’t dant, repeatedly begged not Knauss to be Clearly, do it.” the murder was not acciden “whining whimpering” pri- hurt and was directly unexpected tal or but instead con being police, “[S]he or to shot. He told was professed goal “jacking” nected to the gonna go scared. She didn’t know what was Correll, v. Ariz. vehicle. See State 148 agree court on.” with the trial We (1986) (finding pecuni 732 defendant knew or should have known ary gain only mur where the motivation for anguish. the victim would suffer mental See robbery). ensure no witnesses to ders was to Lambright, P.2d 673 ultimately kept That Jewitt the truck for (1983) suffering (finding mental where nullify partic himself does not defendant’s abducted, assaulted, sexually victim was agree ipation the theft. We therefore with trembling life her fear for her as shown trial that the was commit court murder released). begging to be pecuniary gain. ted for argues pecuniary Defendant also that the The trial court also found that the unconstitutionally gain aggravating factor is especially murder was committed in an hei duplicates overbroad because it an element of killing depraved manner because the nous or felony (robbery). previous- murder haveWe helpless. the victim was was senseless and ly contrary, Greenway, held to the see Gretzler, 42, 52, v. 135 Ariz. See State 163-64, 30-31, and Ariz. at 823 P.2d at de- (1983).. Ordinarily, P.2d senselessness cline to revisit issue. to es helplessness alone are insufficient depravity. v. heinousness or tablish Heinous, Depraved Especially Cruel or Ross, killing to The court found the be (1994). Nonetheless, because we concur especially the drive into the cruel because cruelty finding, uphold we the court’s minutes, desert took at least 30 the victim West, (F)(6) aggravating factor. See State defendants, con did not know the she was (1993) shotgun beginning of fronted with a at the (“[A] finding one of the three factors abduction, it until and threatened with [heinous, depraved] will suf cruel death. also forced to walk into her She was ...”). desert, disrobe, fice. and kneel down before prob- escalating developmental warned of MITIGATION being severely diagnosed as lems. He was Impairment Mental high emotionally handicapped and at risk found that defendant’s “ca- The trial court patterns. behavioral developing antisocial wrongfulness of his pacity appreciate home, group doctors described While at the to the or to conform his conduct conduct gender identity struggling defendant as with significantly requirements law” was not issues, part to his effeminate manner due 13-703(G)(1). § It impaired. regarding orientation. and confusion sexual on, things, among conclusion other based this he knew what he the fact that defendant said years at question, defendant’s Without however, wrong. argues, did was Pathways in his life. were the most stable mitigation provided sufficient evi- that he progress Although made he had considerable though he could dence to show that even birthday, prior to his 18th and was released conduct, wrongfulness appreciate of his time, “He manager stated at that his case according himself to the to conduct sup- good need a deal of aftercare will requirements impaired at the time law’s get fail port____ If David should Rossi, of the offense. See State needs, significant support he there is a (1987)(“[A.R.S. cycle into the same chance that he could 13-703(G)(1) disjunctively____ phrased is] initially required that he be behaviors that significant impairment Proof of of either of However, placed.” he received little follow- suffice.”). personal these two attributes will being up after released. treatment support, points In he the uncontradicted to pending incarcerated trial the While on Geffen, testimony Joseph of Dr. who stated matter, present temporarily defendant was upbringing that defendant’s traumatic and center’s men- transferred into the detention resulting mental disturbance influenced his him as tal health unit. Records described criminal actions. initially depressed, he assaultive and and was Defendant’s abusive childhood is well docu- placed He on a five-minute suicide watch. reported mented. The first incident to Child fore- was also treated for a contusion on his (CPS) Protective occurred he Services when apparently by caused self-inflicted head head only was 2-3 months old and was discovered “acutely banging. He was characterized as vomit, sleeping wearing in his a soiled own required agitated” and the use of leather mother, diaper. drug-abusing His who had restraints. Other record entries indicated separated from his father when defendant crying, appeared had been very young, investigated was CPS psychotic, and was disoriented as to time and physical neglect oc- abuse and on numerous place. throughout developmental years. casions his Geffen, psychologists who Dr. one of the spent a considerable amount of juve- previously as a had evaluated defendant parents. time at the home of his mother’s nile, only expert health was the mental regularly grandmother His beat him and testify aggravation/mitigation hearing. at the severely once burned him with hot water for meeting four differ- After with defendant on wetting pants. grandfather His was con- his December ent between occasions. sexually molesting him victed of over a sub- reported: February Dr. Geffen and period beginning age time at 11. stantial history, the client on the obtained Based allegedly had assaulted defen- This man also suffering to have been was considered eight dant’s mother and at least one of her illness, including a from chronic mental young. Subsequent- were sisters when disorder, polysubstance conduct severe ly, sexually inappro- in defendant acted out personality and mixed dis- ways and was abuse disorder priate with other children narcissistic, schizotypic, depen- juvenile order with placed by authorities in a residential features____ (Path- program treatment and educational dent and borderline ways) years he was 14 old. when have demon- David was considered to dysfunction social and

Psychological pri- strated extreme evaluations of defendant during stay Pathways inability independently in his function reflection, in general community. probably especially without situa- He was stress____ ready society after reintegrated to be tions of considerable Ultimate- ly, program. prevent he was unable the criminal release from residential Ms situation____ from subsequent escaping actions or This was confirmed events, mcluding and extreme Ms dramatic added). (Emphasis involvement substance abuse. Lay supported witnesses Dr. con- Geffen’s Family

clusions. testified to defen- members history, David’s from the time of immaturity please eagerness to dant’s physical experienced special sexual abuse His teacher at others. education childhood, clearly an ab- Pathways his demonstrated observed “he seemed needy, fami- stabilizing young.... sence of factors his He seemed immature but aunt, ly emotionally needy.” own a victim of experience life. His A maternal with significantly him predisposed abuse to re- whom defendant until almost six resided developed carjacking, peat such he fur- months before stated he behaviors as ther, actively ap- sought craved and affection and and indeed led him to violations tMs also he was anx- brought jurisdiction proval. him She testified that which under the Robin, sister, please whom ious older of the Juvenile Court and his eventual “strong viewed as a influence.” He be- pro- in a she placement residential treatment friends, hanging includ- Indeed, gan around her with gram. notes from that clinical 14-year-old ing boyfriend, her Jewitt. Jack program indicated the child’s how serious it disturbance had and how difficult been Richmond, analyzed we him. was to treat 13-154(F)(1), currently 13- origin of A.R.S. added). 703(G)(1), legislature that the (Emphasis findings, concluded Based on these personali intended to exclude character and the doctor concluded: ty sociopathy disorders such as from consid Among longterm psychological dam- eration under this section. 114 ages per- the development were of David’s (1976). 197-98, Following 560 P.2d 52-53 being ceptions feelings alienated decision Supreme the Umted States Court’s others, being belonging from i.e. or not Ohio, in Lockett v. 98 S.Ct. 438 U.S. accepted. longing His for nurture and ac- however, (1978), L.Ed.2d we self-perception ceptance poor and Ms own recognized that even if does a disorder not to fall influence of a led David under the to the level of or defect rise mental disease bent, using, peer group drug of similar i.e. contemplated (G)(1), inquiry originally in In asocial and antisocial orientation. his McMurtrey, 136 is not over. State v. Ariz. interpersonal relationships within (1983). 664 P.2d In follower, easily mamp- group, David was a McMurtrey, we stated: pushed ulated and others with to do what The court must the offered evi- consider stronger willpower him to do wanted it dence further to determine whether prove worthy of their order to himself way suggests other that the defen- some acceptance. opinion It is my professional leniency. For dant should be treated with David’s were direct- criminal actions example, may a evidence of offer ly mentally disturbed influenced family including factors a difficult several The m this eval- condition. data obtamed mitigat- history in an effort to establish strongly this is an uation indicated that 13-703(G)(1). ing § circumstance in The ex- individual who could not have been may the inde- to consider court refuse pected expectations conform effect, any, mitigating if pendent society legal demands to behave in a family history merely all the fac- because manner, history responsible given the together to establish the tors taken fail development circumstances of Ms and the 703(G)(1). § mitigating circumstance 13— occurred. in wMeh he was when the crimes Id. quite predictable. The outcome was

____ impair- considering mental There was that he char- In evidence of evidence ment, acteristically respond impulsively primary to determine its tends to our task is (1986). da, Ariz. Understandably, weight, any. if mitigating may significant fear of be- expressed general be more a Although disturbances he some Walton, than others. State go along with his if he did not ing attacked (1989). in- For friends, or is no evidence Jewitt there Stuard, had stance, the defendant in State v. participate defendant to anyone else forced dementia, IQ damage, a low organic brain correctly de- crime. The trial court retarded, person- a bordering on and serious statutory non- as a clined to find duress killings. ality time of the disorder at the statutory circumstance. We impairment significant for that the was found Participant Minor (G)(1) it a substan- purposes and considered reweighing, independent in our tial factor regarding previously discussed As the defen- in a reduction of which resulted finding, although there is the Enmund/Tison 605-10, Id. at three death sentences. dant’s victim, the evi proof defendant shot the no 897-902. major conclusively a shows that he was dence remorseless, contrast, socio In Thus, defendant’s participant in the murder. in State v. pathic personality of the defendant compared to that his role was minor claim mitigating cir Gerlaugh not constitute a did § 13- qualify under A.R.S. Jewitt’s fails cumstance, statutory or otherwise. 703(G)(3) nonstatutory mitigation. or as 449, 459-60, 704-05 case, in a defendant had been raised Foreseeability of Death environment, relatively home stable there was no evidence he had been abused that defendant The record establishes simply un expert The defense child. likely owner would be knew the truck’s why displayed explain able to the defendant Therefore, properly the court refused killed. tendencies. Id. at violent and destructive his claim that the death was consider Clearly, cases 698 P.2d at 705. these statutory or non- unforeseeable as either a mitigation represent extremes on the scale. statutory mitigating circumstance. however, They suggest, weight that the to be 13-703(G)(4). given impairment propor be mental should conform or tional to a defendant’s wrongfulness

appreciate the of his conduct. Age established, by defendant here years at the was 20 old Defendant evidence, preponderance that he was found, The trial court time of the offense. by impaired affected in no small measure an age mitigating agree, that his is a and we ability his to the law’s to conform conduct also consider the defen circumstance. We requirements. present failed to The state maturity, experi intelligence, and life dant’s assessment, anything Dr. to rebut Geffen’s determining weight to be when ences clearly appears testimony was and it that his Ariz. given Gallegos, v. this factor. State therefore, court, should credible. The trial (1996). 340, 346, Al given consideration to this evi have serious IQ at the time of though defendant’s dence, nonstatutory statutory or either as average range, evi in the other offense was mitigation. Zaragoza, v. State and that he was immature dence established (1983). certainly do 659 P.2d We that easily influenced. Dr. Geffen concluded independent review. part so as of our follower, manipulated and easily he was “a Duress stronger will pushed to do what others with Moreover, Dr. him to power wanted do.” prove “under unusual To he was emotional reported that defendant’s Geffen duress,” § 13- A.R.S. and substantial that at a child-like level and development was 703(G)(2), must show that he was living experience of as he “never has had the the offense coerced or induced to commit functioning adult.” independent v. against his own free will. State Castane- for Mitigation tendency the kind of violent crime toward Other convicted. He had one which he has been trial court considered defen The felony car theft previous adult conviction for dysfunc police and cooperation dant’s with just (nondangerous), which occurred two including past drug family background, tional incident, juvenile and his weeks before this abuse, nonstatutory mitigating alcohol as mainly “acting out” record consists of sexual contest, The state does not circumstances. episodes. In letters written to both the vic- by proven agree, and we that were family judge, defendant ex- tim’s and the note, preponderance of evidence. We damage his “rash pressed remorse for the however, although that defendant’s state unthoughtful” actions had caused. homicide, solving his ments assisted acknowledges that the trial The state mitigating cooperation carries reduced accepting or judge findings made no either weight light of his initial refusal to tell the mitigating. It rejecting ar this evidence Bishop, 127 Ariz. truth. See required “not gues instead that the court is (1980). 534-35, 622 P.2d 481-82 discuss, verdict, separately special found that defen The court also mitigating, claimed to be each circumstance adequately good demonstrated conduct dant argument each made the defense.” loving family relationships, during trial and Spencer, State mitiga each irrelevant as but ruled that however, 146, 154 judge, specifi This dismissing defendant’s trial behav tion. nonstatutory mitigator cally each identified ior, judge correctly that such observed and whether it was rele he found to exist expected.” the norm and is See conduct “is is, therefore, reasonable to conclude vant. It Spencer, remorse, ability to func that defendant’s (1993) says (good trial behavior environment, tion in a structured character, nothing tenden about defendant’s felony might prior convictions lack of violent cies, Regarding potential). or rehabilitative Nevertheless, the considered. not have been however, relationships, the state ad familial us contains sufficient evidence record before might this evidence have some mits factors, will taken into of these and each be Bible, Ariz. at mitigating force. reweighing. independent in our See account given The court should have 1209. 13-703.01(B),(C). §§ weight. this circumstance some judge Defendant also claims that the argues next requests from the should have considered following considering the family court erred not that he be sentenced to life victim’s (1) held, nonstatutory mitigators: previously to func imprisonment. have We (2) environment; however, well in a is irrelevant to tion structured that such evidence conviction; prior felony lack of a violent or the cir either the defendant’s character (3) deny does not remorse. state of the crime and is therefore cumstances Williams, in support evidence proper mitigation. the record contains Furthermore, these factors. each is relevant Ariz. mitigation purposes. State v. Mur suggests that the trial Lastly, defendant (1995) 9, 542, 40, ray, 906 P.2d sentencing him to life court failed to consider rehabilitation); v. At (potential for State possibility of release imprisonment without 593,

wood, 576, 654, 171 Ariz. 832 P.2d 13-703(A). However, § no evi- under A.R.S. (1992) (lack convictions); prior violent v. supports this assertion. See Walton dence Tittle, 339, 344, v. 147 Ariz. 710 P.2d State 639, 653, 3047, Arizona, 110 S.Ct. 497 U.S. (1985) (remorse). 449, 454 (1990)(“Trial judges 111 L.Ed.2d 511 apply it stay presumed to know the law and to 2$-year in a residential are Defendant’s decisions.”). making We further de- pre- in the in their center documented treatment the natural- request to treat report. during that cline defendant’s Evaluations sentence mitigating circumstance. See option life as a responded that he well time indicated Soto-Fong, 187 Ariz. In addi- State v. supportive and environment. stable (1996)(“The availability of a tion, a P.2d nothing in his criminal record reveals not, Valencia, opinion, ‘real life’ sentence our life sentence.” v. 132 Ariz. is State (1982). mitigator____”). 239, 241 645 P.2d Due to danger poses society, defendant how- INDEPENDENT REWEIGHING ever, imprisoned we be believe he should ag court When the trial errs its the rest of life and never his natural be gravation mitigation findings, or remand is released. generally appropriate judge not unless the wrongly excluded evidence or the record resolution, foregoing In view of the it is adequately does not all of the reflect relevant unnecessary to address defendant’s other 13-703.01(C). § facts. Neither A.R.S. situa sentencing issues. Therefore, present tion is we here. must independently reweigh and determine wheth DISPOSITION proven mitigation sufficiently er the is sub non-capital Defendant’s convictions and leniency. stantial to warrant 13- 703.01(B). are His sentences affirmed. sentence of carrying duty, In out this we imprisonment death is reduced to natural life have stated: release, possibility without to be served question The before us is not whether consecutively prison to the terms for the non- properly imposed the trial court the death capital §§ convictions. See A.R.S. 13- penalty, whether, upon but based the rec- 703.01(B),-703(A), -708. us, ord before we believe that the death penalty imposed. finding should be A

merely MOELLER, JJ., imposition of the death FELDMAN and concur. penalty by “factually the trial court was JONES, Justice, dissenting: Vice Chief supported” “justified by the evidence” is not separate independent judg- I respectfully weighing dissent. After ment penalty this court that the death factors, aggravating mitigating I would warrants. agree I affirm death sentence. with the majority that Watson, the murder was committed for State v. 129 Ariz. 628 P.2d (1981). pecuniary gain, 13-703(F)(5), A.R.S. Section heinous, especially and in an cruel or de evaluating Our task in weighing praved manner. See A.R.S. Section 13- proffered mitigation is difficult at best. 703(F)(6); LaGrand, 153 Ariz. There is upon no scale which to measure 35-36, 734 P.2d 577-78 what “sufficiently is or is not substantial.” record demonstrates that the murder was case, proved the state that Ellen accidental, planned, not but and that unimaginable Knauss suffered terror. In de fully participated defendant in the crime. ciding whether death an appropriate sen 155, 164-65, Greenway, See tence, however, we look at must more than 31-32 The crime was just the facts of the crime. We must focus cruel, lasting approximately but minutes on the defendant in order to make an individ two hours from the time victim was ualized sentencing required determination as kidnapped shopping accosted and cen by both the Arizona and United States Con parking ter violent lot until her death In carrying responsibili stitutions. out this period prolonged prior desert. For a to her ty, upon “we are sometimes called to reduce death, knowingly intentionally a death imprisonment sentence to life even in subjected unspeakable anguish. her to aggravated cases where the facts are and the Kiles, State Stuard, tragedy immense.” 176 Ariz. at (1993); Apelt, 863 P.2d at 897. 369, 376-77, (1993); 661-62 noted, presented As defendant substantial Lambright, v. Ariz. State whole, mitigation evidence. Taken as a this 1, 13 (1983). question evidence causes us to whether death appropriate. Weighed is against “there a that Where is doubt the claim follower, whether the death im- a sentence should be was mere led to commit this crime posed, fourteen-year-old accomplice, we will resolve that doubt in favor of a his I am not consisting mitigating

persuaded that factors 951 P.2d 889 dysfunctional family back- of defendant’s In the Matter of Member the State condi- ground and his emotional mental PIATT, Arizona, M. Bar of William participation in tion should excuse his IV, Respondent. Ariz. degree. McKinney, (1996); No. SB-96-0064-D. State Nos. Disc. Comm. 91-0843 91-1522. King, (1994). Clearly, faced the difficulties Arizona, Supreme Court of created substan- childhood adolescence En Banc. for record challenges tial defendant. The me, however, meaningful no persuades that Dec. 1997. and a link exists between his abuse a child Judgment Mandate Issued sig- magnitude. perceive I no crime 16, 1998. Jan. though nificant show even evidence appreciate wrongfulness defendant could conduct, ability his his the law follow impaired at the of the offense. See time 13-703(G)(1); Rossi I Joseph agree with Dr. Geffen’s testi-

would

mony experience childhood that defendant’s but, behavior,

impacted not the extent supremely he not be accounta- need held against in this

ble his actions victim See, Thornton, e.g.,

case. past His him decide

did rob a car it unlawful to commandeer

whether was own, and the life the owner

he did not take and in the described

after events manner sufficiently It

in this record. clear nature crime

defendant understood the of his easily prevented

and could have both

killing aggravation. The attendant

evidence leads me to conclude that defendant not warrant reduction in sentence.

does J.,

MARTONE, concurs.

Case Details

Case Name: State v. Trostle

Court Name: Arizona Supreme Court

Date Published: Dec 24, 1997

Citation: 951 P.2d 869

Docket Number: CR-94-0175-AP

Court Abbreviation: Ariz.