*1
STATE of
Aryon WILLIAMS, Appellant.
No. CR-93-0138-AP.
Supreme Arizona, Court of
En Banc.
Sept. *4 by Woods, Paul J. Attorney General
Grant Phoenix, McMurdie, for Northup, M. Dawn Appellee.. Levitt, Tucson, Appellant. for
Harriette P. MOELLER, Vice Justice. Chief case, appellant Aryon Williams In one (“defendant”) degree charged with first was another, charged with In he was murder. armed degree and attempted first murder robbery. trial court consolidated trial, jury found defen- for and the two cases guilty of dant all three offenses. degree mur- for first to death was sentenced imprisonment der and to concurrent terms of attempted murder. and armed automatic, appeal. direct This defendant’s 31.2(b); Ariz.R.Crim.P. Ariz.Rev.Stat. (AR.S.) 13-1031, §§ Ann. non- separately appeal not Defendant did pres- capital and convictions sentences them, independent concerning ents no issues for funda- although we have them reviewed below, For mental error. reasons discussed sen- affirm convictions and we tences.
FACTS Degree Murder Rita. Defendant First murdering girl- his was convicted of former friend, Although Rita defendant and DeLao. separated, they together Rita had a son were (“little Aryon”) close rela- maintained January tionship. Saturday, On spent part day Rita defendant and spend together plans for Rita to and made night apartment at defendant’s Casa gun- Rita’s death was caused multiple Grande. apartment lived in the shot wounds with multiple associated frac- girlfriend, with his Deloney, current Michelle injuries tures and internal due to blunt force spend but told Saturday night Although Michelle trauma. the medical examiner could sequence somewhere else. Defendant Rita at all left determine the injuries, parents’ Eloy Saturday did injuries house determine that after- noon, expecting apartment come to his inflicted the automobile after a occurred pressure, dramatic evening. decrease blood indicat- later after Sometime mid- ing severely Rita night, injured was telephoned Rita before defendant at his being run over. apartment Bullets recovered from and said that she wanted come Michelle, however, there, firing pin wounds and found at the scene over. so de- were consistent with .32 gun caliber fendant told Rita not to come. Rita called a taken from Rita earlier second coming time and said she morning. Police also a metal recovered appeared over. Rita apart- spring pieces a steam iron ment at about 3:00 a.m. Defendant went Rita, scene. they outside talk to had an argument. When Rita confronted defendant did up When Rita not show for work *5 gun,
with a defendant knocked her down and morning, employer her called mother. her against disarmed her. hit She her head a whereabouts, Unaware of Rita’s moth- Rita’s concrete sidewalk. Defendant went into the er called defendant’s mother and then later apartment, got glass a keys, water and his speak went Rita’s to with to defen- brother and apartment. then left He the later told parents’ dant Eloy. at his Defen- home family his that to up the water was clean Rita, dant told that had but them seen Rita’s blood. that she had left Casa at 2:00 Grande about morning apartment to return to her apartment When defendant returned to his laughing Phoenix. Defendant then started several hours later at about 7:00 or 8:00 that and family they told Rita’s would never morning wearing same different find give her and that a he would them week clothes. He told Michelle that he had and custody a half to find her took before he burned the and clothes shoes that he had Aryon. told little that he them wearing. been Michelle found Rita’s shoes son, anything get custody would do to of his floor, on day the kitchen but later that no- even if to he had shoot or “beat heck out they gone. the. ticed were of’ to do someone it. a.m., day That about 9:00 same 8:30 to January 29, morning, Monday, The next body hunter Rita’s a dirt discovered on road 1990, defendant told Michelle that some of City, twenty-minute Arizona about a drive his had friends killed Rita. He told Michelle apartment. from defendant’s Rita had been present killing, during he was the but shot once in thigh, the elbow and in the twice only had kicked Rita in the face. Defendant fracturing her femur. She had sustained car, then drove Michelle to Rita’s which was multiple injuries blunt including force parked near a field baseball about seven- bruises, scrapes, face, and tom skin on her apartment. tenths of a mile their As head, chest, abdomen, arms, shoulders, and car, approached defendant Pinal Coun- back. injuries, She also had severe internal ty pro- Sheriffs evidence technician who was including ribs, multiple fractured a-fractured cessing stopped car him. Defendant told bone, bones, breast collar fractured and mas- thought the technician that he the car was sive pelvic fractures of the bone. Rita’s Rita’s and that if he were allowed to look liver, lungs, spleen, torn, and bladder were car, inside the he could confirm his belief. and there was a small amount of blood at the He also told the technician that Rita was brain, base of likely by injuries caused to from Phoenix and that he had last her seen the chest. dragged by She had been her on Sunday morning at about 3:10 or 3:15 a.m. legs, heels or injuries and her and tire tracks across her abdomen indicated that she had Defendant later to went the Casa Grande been run over an automobile. Department Police inquire to about Rita. At details Rita’s it.” Defendant also shared Wesbrock department, Detective co-workers, but did two of his with County interviewed de- murder Office Pinal Sheriffs them his involvement. not admit to Rita was dead. and told him that fendant interview, with de- Wesbrock went After the Attempted De- Robbery and First Armed apartment. to While fendant defendant’s early hours Norma. In the gree Murder of had apartment, Detective Wesbrock Rita’s five after of March weeks Michelle, him who told with brief discussion murder, K conve- entered a Circle defendant her on the was home with cashier, Norma asked the store and nience obtaining night After written murder. Soto, boyfriend was. Defendant her where Michelle, consent from both defendant boyfriend. Nor- 'Norma and her knew both Detective Wesbrock examined was, boyfriend where her ma told defendant handgun. He also caliber automatic .45 later, at About an hour left. defendant and closet and drawers searched defendant’s a.m., He 2:20 defendant returned. around clothing had worn all defendant seized angry. appeared upset and gun Shortly previous after Wesbrock week. ru- spreading Norma Defendant accused left, police told defendant Michelle her had killed Rita and asked mors that he fingerprints on Rita’s car be- would find.his register. money in While she night Rita the cause he had been with before. told money, handing defendant should contin- He told Michelle she also they go so could get car police home all that he was with her ue tell refused, de- Norma desert and talk. When night. give her to the said that he would fendant Norma get in the car. count of three fingerprints did find Police begged cry started several different surfaces on the exterior *6 fired, in hitting Norma hurt her. Defendant They Rita’s car. also found various stains abdomen, forehead, hand. and left the resembling on the interior and exterior blood vehicle, including a.m., dark stains in the of the Fortier approximately At 2:45 Officer splash well and on the area near the tire by the Eloy Department Police drove large emergency A stain on wheel cover. the noticed security a check and store on routine type was blood with the same brake console Thinking this standing open. the front doors as enzyme and Rita’s. Several unusual, markers not he did he went inside. When blood, human but crim- clerk, the other stains were and saw he the counter see the went type. the inalists were unable determine a standing open. then saw registers the He were traces of human blood on the left blood, it, There Norma trail followed and found panel, spoiler, left the quarter rear the front with sitting manager’s office covered in the wheel, splash rear the area behind the left blood, After holding raga over her stomach. panel molding, on loca- left rear and several hap- help, Norma what calling for he asked tions car. Inside the on underside Aryon had pened, that Williams and she said car, emergency in addition to the stain on the initially did that she said robbed her. She console, was human blood on the her, brake there waiting for but while not know who shot said, driver’s door and on the driver’s seat. “Aryon repeatedly the ambulance she a paramedics and also told shot me.” Norma murder, two weeks after Rita’s de- About Aryon deputy that County Pinal Sheriff’s in fendant admitted to Michelle that he had scene, police At the Williams had shot her. fact killed Rita. He told that he Michelle that casings bullet three .45 caliber recovered in and shot Rita the arm side and that fired to have been were later determined in the a iron and he hit her head with steam gun. Approximately from seven- pole. a told Michelle that when Rita He missing the store. ty-seven dollars was from run, get up and her tried to he knocked down emergency at room repeatedly and ran over with a car. De- Norma arrived at her Norma who shot finally told that told 3:57 a.m. A nurse asked fendant Michelle she her, B. years responded Dixon anyone, do his 25 and he and Norma “John “he would robbery. works with get kill if he did it ... it was a He [her] would out and he would reported John go through family do to Officer [her] had to entire me.” Nurse Contini murder, that B. Jensen “John Dixon” was involved dant in Rita’s and admitted that she shooting. Norma’s interviewed Nor- Jensen had earlier lied when she told Wes- Detective ma in the care unit. Norma had an intensive with on brock defendant was home her her throat endotracheal tube inserted down night of Rita’s murder. talk, with help thus could but of a defendant, told Detec- Police arrested who
nurse, Jensen was able interview her that, although gun, tive Wilhite a he owned through questions to which Norma series somebody he had it to who had not loaned by nodding responded shaking her head. it. returned When defendant found out that Norma told Jensen that she did not know police gun, had his he admitted that he her, it co- who shot but denied that Was her lying, was but involvement denied worker Bendixon had her. John who robbed robbery of Norma. spell then had Norma out Officer Jensen by nodding yes of her assailant name PROCEDURAL HISTORY appropriate alphabet letter as he said the spelled aloud. out W-I- She A-R-R-O-N Defendant was indicted for armed spelling L-L-I-A-M-S. After out defen- and, attempted murder of Norma several name, Jensen, again dant’s Norma told later, separately months for the indicted through yes-or-no questions, series court, first of Rita. degree murder The trial her, defendant had robbed that defendant on motion the state over defendant’s her, gun pointed had that she did not objection, consolidated the two cases for trial. her, know who shot she did not trial, primarily At the state on defen- relied being remember shot. Norma confirmed dant’s admissions to Michelle and others and police a later statement physical prove on evidence to the murder her, accused had robbed that he had her The trial court also admitted Rita. rumors, spreading pulled gun separate on to the mur- occasions her, only on and that one around der, car, had burned Rita’s slashed during robbery. Doctors removed tires, apartment. and shot at her To Norma’s abdomen a .45 caliber bullet Norma, against prove the state crimes having as was later been fired identified primarily physical on relied evidence and *7 gun. defendant’s testimony Norma’s and statements to others identifying as her assailant. defendant morning At about 8:15 a.m. of the Norma, shooting and of on his own and Defendant testified behalf told mother called Michelle and her that the offered alibi an defense each crime. He police looking for and that were defendant arguing early in admitted with Rita shooting Norma had accused defendant January 28, morning hours of but de- reported her. When Michelle this defen- any nied involvement in her To murder. dant, straight up “jumped off the floor.” explain how Rita had been shot with what involvement, He denied but that his stated appeared gun her own after he had be gave friends had done it. then Defendant her, it from taken defendant testified that he gun eighty Michelle his and dollars cash. gave gun shortly the loaded back to Rita and told and her to not come back. He leave disarming regard after her. With to the gun, told her to it hide the but not throw Norma, robbery/attempted armed murder of away. going admitted once K and Circle thereafter, Shortly police stopped talking night, Michelle Norma but testified driving gun while recovered the from her shooting, that at the of the time he was at his police car. The took parents’ Michelle to the Casa explain home with his To brother. Department Grande Police where Detective showing gun the evidence that his fired the Eloy Department Norma, Wilhite of the Police shots that hit he testified that he County Detective Eck of the Pinal spent part particular Sheriffs of that evening with friends, During Office interviewed her. the inter- two that he inadvertently gun left his view, gave police car, money Michelle they in their gun and that returned the her, given implicated defendant had to him defen- shortly sometime after the time defendant, properly im- 2. the trial court shooting. According Whether death; they gun, posed a sentence him that had fired the friends told say where. they did not but victim recommendations 3. Whether de- sentence violated appropriate guilty verdicts on all jurors returned rights; constitutional fendant’s count, sentencing At on the murder counts. statutory aggravating court found two penalty stat- 4. Arizona’s death Whether (1) previously con- factors: defendant is constitutional. ute involving felony the use or threat of a victed (the DISCUSSION robbery/attempted armed
of violence 13-703(F)(2) Norma), § see AR.S. murder of I. TRIAL ISSUES (2) committed the of the Cases A Consolidation heinous, especially in an cru- murder of Rita manner, § el, 13- depraved or see A.R.S. court argues (1989). 703(F)(6) no trial court found rob the armed not have consolidated should factors, as statutory mitigating but found bery/attempted with the murder murder case nonstatutory mitigation that had 13.3(a), Arizona Rules Crimi case. Rule murder and prior criminal to the no record Procedure, joinder of offenses nal allows displayed past information, indictment, complaint or an Concluding good conduct character. -(1) same or similar charac they: are mitigating evidence was suffi- (2) ter; are on the same conduct or are based leniency, the trial court sen- cient to invoke together in their com connected otherwise tenced defendant to death. mission; alleged to or have been are plan. If the part a common scheme
ISSUES catego fit of these into one or more offenses raises six trial and four 13.3(c) issues ries, authorizes consolidation Rule sentencing issues. part or in charged cases in whole separately justice will not be “provided that the ends The trial issues are: thereby.” v. Martinez-Villa defeated 1. the trial court erred con- Whether real, trial; solidating the two cases for denied, cert. 474 U.S. have 2. the trial court should Whether the cases We hold that L.Ed.2d excluded evidence as properly consolidated “otherwise were Rita; against bad acts together their commission” connected the trial court should have Whether 13.3(a)(2). meaning within the of Rule granted a Michelle Delo- mistrial after con- may joined as otherwise Offenses be ney concerning defendant’s testified *8 where, among in their commission nected did prior bad acts because the state admissible things, the other most of evidence testify; not disclose that would so she in is also admissible proof in of one offense preindictment delay 4. Whether denied Martinez-Villarecd, 145 proof of the other. speedy or right defendant his to a case, 446, In this P.2d at 675. Ariz. at 702 process; due prove to most the was admissible evidence by 5. the trial court allow- Whether erred regard to the murder With either crime. ing investigative two wit- the state case, robbery/attempt- of the armed evidence nesses; for and admissible murder was relevant ed 6. the trial have Whether court should First, it to show purposes. was relevant two into an out-of-court allowed evidence guilt thus defendant’s consciousness prior as defendant a con- statement a identity Rita’s killer. Evidence that as sistent statement. sought suppress to evi- criminal defendant sentencing issues are: affecting to adversely him is relevant dence Settle, guilt. v. State the trial have show consciousness Whether court should (1975); 396, 151, 153 presentence 531 P.2d authorized funds for a di- 111 Ariz. exam; agnostic Haymon, v. 616 S.W.2d mental health see also State 376 (Mo.) (holding shooting defendant’s at for arrest Norma’s because she
tempt
to shoot witness is
to
relevant
show
if
feared
defendant was released from
guilt
jail,
try
consciousness of
or
to conceal
would
desire
the
to kill
her next. Evidence
denied,
crime),
454
cert.
102
U.S.
S.Ct.
threats
and the event
Bible,
finally
377
Acts
disagree.
In
for the
B. Evidence of Prior Bad
We
order
minimal.
attempted
of Norma to be relevant
murder
chief,
During
in
state
its case
the
case,
to
to defendant’s murder
the state had
on
that defendant had
introduced evidence
car,
show that it
introduce evidence sufficient to
separate
occasions
Rita’s
earlier
burned
tires,
Similarly,
apartment.
at
who shot Norma.
slashed
and shot
her
was defendant
argues that
trial court abused
the
Rita to be
to the
for the murder of
relevant
admitting
evidence.
in
this
its discretion
Norma,
robbery
attempted
of
and
murder
pro
provisions in the rules of evidence
Four
was
who
had to show it
the state
prejudice
result
unfair
tect defendant
Schurz,
v.
176
murdered Rita. See State
(1) the
bad acts:
ing
prior
from evidence
(for
46, 51-52,
156, 161-62
Ariz.
859 P.2d
404(b)
that the evidence
requirement
Rule
robbery
be
separate
of a
to
admissi
evidence
(2)
purpose;
proper
for a
be admitted
murder,
prove
must be suffi
evidence
ble
(3)
402;
requirement
relevancy
of Rule
robbery
place and
to find that a
took
cient
Rule 403
trial
discretion under
court’s
it), cert. de
committed
prej
danger
if the
of unfair
evidence
exclude
—nied,
-,
640,
114
126
U.S.
S.Ct.
probative
substantially outweighs the
udice
required
Given the
L.Ed.2d
(4)
value;
provision
an
Rule 105’s
and
on
showing, the bulk of
state’s case
either
instruction,
limiting
requested.
appropriate
necessarily
crime was
admissible
the case Atwood,
638,
655.
jury reasonably can conclude from the evi argue used evidence to dence that the act occurred and that stop nothing jealous for “would need actor). defendant was the total control child over his and the women jury reasonably here could con- have words, his life.” In used other the state cluded the evidence that defendant motive, evidence illuminate prior girl- committed the acts. Defendant’s purpose proper for other acts under evidence friend Michelle testified defendant fre- 404(b). very danger Rule We little see expressed hostility quently toward Rita and prejudice prior unfair in the acts evidence told her he had commit- danger Accordingly, admitted here. prior ted all three acts. also Michelle re- prejudice substantially unfair out- did called an occasion when defendant their left probative weigh the value of evidence. apartment shotgun with a and re- sawed-off The other acts evidence admitted defen- turned about one hour later. About five to requirements' returned, dant’s case meets the ten minutes after defendant defen- Moreover, rules evidence. the trial court say dant’s mother called to that Rita had jury instructed the to consider other acts accusing shooting called her only proper purpose for apartment. also admitted to it which was admitted. See Ariz.R.Evid. 105. one co-worker that car burned Rita’s tires, was no slashed her There abuse discretion. and he admitted
second co-worker that he had Rita’s burned car apartment. and shot at her Based on Testimony Rule 15 C. and Michelle’s evidence, adequate this the state made an Regarding Defendant’s Prior Acts showing that defendant committed the acts. In attacking addition to prior bad argues finally evidence, even acts evidence under rules of pur the evidence was for a proper that, relevant defendant also contends to the extent it pose, court should Michelle, have excluded it in through came it should have “[a]ny probative because value would have been excluded as a sanction for the state’s slight compared been with the alleged enormous nondisclosure. Michelle testified that prejudicial effect.” See Ariz.R.Evid. 403. defendant told her that he committed all concluded, disagree. already As alleged We we have against three acts prop Rita’s probative erty. the evidence show defen gave She also testimony tending other Sparks, dant’s motive intent. See 147 to prove that defendant had shot at Rita’s
379 Delay days D. Preindictment apartment. Six after Michelle’s testi- sanctions, mony, moved includ- for defendant January Defendant killed Rita on mistrial, state had not ing a because the on 1990 for the March He was arrested testify about that she would defen- disclosed indict- against He was not offenses Norma. prior appeal, defendant ar- dant’s acts. On for until December 1990. Rita’s murder ed 15.1, Rule Ari- gues argues preindictment delay that state violated de- the that the He Procedure, process his right it to due because nied him zona Rules of Criminal speedy Amendment a trial. right to Sixth its to introduce did not “disclose intention not raise this issue defendant did Because through Michelle any prior acts Delo- bad below, it of us to as matter he asks review ney.” error. fundamental imposes such no disclosure Rule error, no funda find let alone We 15.1(a)(1) requires requirement. Rule the We first mental error. note of all state to disclose the names witnesses right speedy did to trial Sixth Amendment together written or re with their relevant See not attach until defendant indicted. 15.1(a)(6) requires Marion, corded statements. Rule v. 404 U.S. 313- United States 455, 459-60, prior state disclose all acts of the 30 L.Ed.2d the to (1971). Thus, in terms of the Sixth Amend trial. will be defendant used ment, delay is of no conse preindictment the provisions complied state with both of these quence. statement, identifying in its first disclosure listing the prior
Michelle as a witness and delay preindictment to violate For it acts use. Defendant does not intended (1) process, must show due defendant allege gave any that Michelle written re gain a delay tactical the was intended disclosed, corded statements were (2) that the advantage or to harass him require and the do not the rules state substantially delay actually prejudiced explain Hall, 589, 592-93, how it “intends” to use each of its him. Ariz. State Wallen, Ariz. witnesses. See State v. has P.2d 401-02 Defendant (App.1977) does not show shown record neither. delay. (“The purpose As for the reason or for the discovery require criminal do not rules ample pre prejudice, time word-by-word preview provide state to allege pare his Defendant does not defense. testimony to defense counsel witnesses, delay caused the loss witnesses.”). state’s evidence, anything or the loss of the loss of had full notice the witnesses him. helped else that would have and the matters to which Michelle testified. Investigative Witnesses alleged E. The State’s prior He knew which acts the state use, intended to and counsel was able Eloy City of the Detective Wilhite regarding Michelle cross-examine testi- charge Department officer in Police was the mony relating to the acts. Under these armed attempted murder and circumstances, properly court de- Pinal of Norma. Detective Tom Solis County nied motion for mistrial or for other officer Sheriffs Office 360-61, charge expect Rita’s Both sanctions. id. at murder. were P.2d at testify, ed to and the court allowed both them (holding that trial court did not throughout to sit trial. at counsel table its abuse discretion when it denied sanctions argues that this violated Rule pre- after state’s witness to matters testified Rule of Arizona Evidence. undisclosed); Hatton, viously cf. trial, At time Rule 615 (holding listing the provided: names witnesses
for use in the state’s case-in-chief was ade-
request
party
the court shall
At
quate
prepare
they
for the
notice
so that
can-
order
excluded
witnesses
rebuttal).
testimony
wit-
testimony
their
of other
not hear
*12
nesses----
This rule
not
does
F.
authorize
Defendant’s Out-of-Court
State-
(1)
party
exclusion of
a
who is a natural
ment to Andrew Cass
(2)
person,
employee
or
an officer or
of a
Cass,
Andrew
one of
co
party
person desig-
which is not a natural
workers,
during
testified
defendant’s case
(3)
...,
representative
as its
nated
or
spoken
that he had
with defendant about the
person
presence
by party
whose
is shown
burning of Rita’s car. When defense counsel
presentation
to
to
be essential
of the
asked,
Aryon
you
“And what did
tell
about
party’s cause.
vehicle,”
objected
Rita[’s]
the state
on hear
argues
that
its
the rule
lan-
say grounds.
argued
Defense counsel
guage provides only
“person”
for a
whose
the statement was admissible because it was
presence
essential,
is shown to be
not a
prove
offered
rebuttal and to
the declar
Thus,
“person
persons.”
according
to de-
(defendant’s)
ant’s
of mind.
court
state
The
fendant,
authority
the court had to allow
objection.
appeal,
sustained the
On
defen
Wilhite,
either Detective Solis or Detective
time,
argues,
dant
for the first
that the trial
both,
but not
throughout
remain
the trial.
court should have allowed
out-of-court
Defendant reads the
too
rule
nar
prior
statement as a
consistent statement.
rowly. Under Rule of Criminal Procedure
801(d)(1).
See Ariz.R.Evid.
9.3(d)
615(2),
Rule
Evidence
the state
Because defendant did not raise below his
investigator present
is entitled to have one
prior-consistent-statement
theory of admissi
trial,
throughout
though
person
even
bility,
argument
he has
and can
waived
may testify.
any party may
But
seek addi
not
appeal.
Schaaf,
raise it on
exemptions
tional
from the exclusion order
(1991) (“We
by showing
presence
of an
additional
evidentiary theory
will not
an
consider
when
person or persons
presen
is
essential
it
appeal.”).
is advanced for the first
time
615(3).
party’s
tation
cause under Rule
Additionally,
an
defendant failed
make
Alvarado,
See United States v.
647 F.2d
court, and,
proof in
offer of
the trial
there
(5th Cir.1981)
(allowing
agents
two DEA
fore,
meaningful way
there is no
to deter
remain
counsel table under Federal
statement,
it
mine whether
whatever
615).
particu
Rule of Evidence
801(d)(1)(B)
was, qualified
as a
under Rule
larly overemphasizes
singularity
defendant,
consistent statement
“person”
word
in Rule 615. Under the terms
yet
who had not
testified. Ariz.R.Evid.
rule,
party
person’s
shows that a
103(a)(2) (stating
may
pred
not
error
be
presence
presentation
is
essential
ruling excluding
icated on a
evidence unless
case,
authority
its
the court lacks
under the
the substance of the
is
evidence made known
person
rule
exclude that
from
trial.
proof
apparent
an
offer
or is
from
any person,
We take the rule to mean
not
context);
Bay,
State v.
150Ariz.
(“[T]he
person.
one
See id.
as to
decision
(“Ordinarily,
ruling
many
how
sequestration
will be
excused
excluding
a trial court
cannot be
just
discretionary
as
... as who will be
appeal
reviewed on
absence of an offer
excused.”).
proof____”).
question
then is whether the
state made a
showing
sufficient
that a second
II. SENTENCING ISSUES
agent
presenta
case
was “essential to the
tion” of the state’s case. We
believe
it
A. Presentence Mental Health Exami-
did.
involved cases that had been
nation
investigated by
separate
two
law enforce
agencies.
ment
Each
sentencing,
detective was in
Before
defendant asked
case,
charge of his
unique
Ph.D.,
and each had
appoint
Bayless,
areas
the court to
Michael
personal knowledge.
circum
exploring possible
Under these
to assist him in
mitigating
stances,
the trial court did not
objected,
abuse its
arguing
circumstances. The state
allowing
discretion
both to remain in the
that there was no reason for a mental health
courtroom.
examination
further
disorder.
Id. at
psychologist
personality
of his choice.
an antisocial
to a
entitled
*13
mother,
request, stating
at
883 P.2d
1019. Defendant’s
The trial court denied the
no
an examination
had
practicing psychologist,
that
for such
existed
also
cause
testified
at that time.
psychologically impaired
that her son was
might
neurological
and
brain lesions or
have
largely
motion
Mi-
Defendant based his
on
264, 883 P.2d at
problems.
Id. at
testimony that defendant had told
chelle’s
drugs
her that
sometime before the
he used
contrast,
here,
lit
by
contains
The record
murder,
calling
ques-
into
purportedly
thus
suggest
that defendant’s
nothing
tle or
to
capacity
appreciate
tion
to
the
impaired. His
capacity was ever
mental
wrongfulness
conduct or to conform his
of his
unquestioned throughout
mental health was
requirements
conduct
of law. See
to the
insanity
an
trial.
did not raise
de
the
He
(1989).
13—703(G)(1)
§
A.R.S.
a Rule 11
request
and
evalua
fense
did
26.5,
Had
under
influ
Arizona
tion.
defendant been
the
Rule
Rules
Rita,
Procedure,
drugs
expert
murdered
provides,
any time
ence of
when he
Criminal
“At
pronounced,
may
testimony may
the court
aided the trial court
before sentence is
have
drugs
undergo
determining
order
mental
effect of the
defen
the
the
diagnostic
may
capacity
health examination or
evaluation.”
thus
have
dant’s
and
led
Generally speaking, when a defendant seeks
See
mitigating
additional
evidence.
State
explore possi Kites,
358, 374,
mental health examination
P.2d
1228
175
857
Ariz.
circumstances,
mitigating
the
ble
trial court
expert
health testi
(discussing
mental
an
should
its discretion
favor of
exercise
mony
ample
was
where there
it
it finds that
more
examination when
needs
at the
intoxicated
time
the defendant was
—
mitigat
denied,
information to determine whether a
U.S.-,
murders),
cert.
Clabourne,
ing
might
(1994).
factor
exist. State v.
L.Ed.2d 688
S.Ct.
142 Ariz.
690 P.2d
see
however,
here,
does not show
The evidence
(1989) (granting
§
also
indi
A.R.S.
under the
defendant was
influence
gent
capital
right
cases
defendants
drugs when
Rita.
he murdered
experts
reasonably necessary).
such
as are
argued,
on appeal,
has not
below or
either
However,
discretionary,
rule is
and we
drugs
alcohol or
that he
intoxicated
only
will find
abuse of discretion
an
n fact,
In
Rita.
denied
when he murdered
denial
of funds is
or restriction
shown
using
throughout virtually
drugs
ever
prejudice
have caused substantial
to the de
sentencing.
expert,
No
how-
trial
entire
Clabourne,
fendant.
at
Ariz.
determined,
qualified,
have
with-
ever
could
Unquestionably,
gra-
Scott,
this murder involved
177Ariz.
stance. State
.broken,
(1993),
body
tuitous violence. Rita’s
was
P.2d
cert.
-U.S.
denied
crushed, torn,
shot,
-,
dragged,
scraped,
130 L.Ed.2d
beat-
en,
being
and bruised.
In addition to
shot
(b)
Conduct and Character
Past Good
times,
savage beating
three
Rita suffered a
object, resulting
good
with a hard
in blunt force
displayed
char
injuries covering virtually
upper
murdering
her entire
Until
prior to
Rita.
acter
body.
injuries, consisting
abiding
repu
a peaceful
Her internal
and had
he was law
pierced
organs,
performed
and torn
CPR on a
were numerous and
also once
tation. He
neighbor
apparently
having
who
throughout
a heart
the trial and almost all the sen-
attack,
working
lifeguard,
tencing
while
as a
drugs.
that he ever used
people
defendant saved two
possible
showing
offered no evidence
that he was
drowning. The state
no
intoxicated
offered
evidence to
when he murdered Rita.
good
rebut defendant’s
evidence
character
Defendant,
thus, has not shown or
prior to 1989.
trial
correctly
court
found
argued
even
any impairment
that he suffered
past good conduct and character
to be a when he
showing
killed Rita. Without a
mitigating
relevant
circumstance. See State
impairment
offense,
some
at the time of the
Carriger,
143 Ariz.
drug
mitigating
use cannot be a
circumstance
(1984) (saving
mitigating
a life is a
Wood,
any
70-71,
kind. See
180 Ariz. at
circumstance),
denied,
cert.
471 U.S.
1175-76; White,
Defendant the trial (African-American) should be that his race (f) Strong Relationship Defendant’s rejected mitigating trial court factor. The Family with His factor, proposed mitigating and we this shows The record agree. strong relationship family. has a with his arrest, his defendant was a contribut Before Appro- C. Victim Recommendations household, and main ing member of his he priate Sentence parents, his broth close with his tained ties ers, miti his We this a sons. consider report presentence revealed Carriger, 143 Ariz. gating circumstance. wanted sen that Rita’s father however, note, 162, at 1011. We at 692 P.2d Also, attempted to death. murder tenced stop relationships did not defen Norma, that these victim, filed a statement recommend id. killing dant from his son’s mother. See appeared at sen ing penalty the death (discounting mitigating of love value say tencing to was not family among it did not deter defen death, because get life he should at least sentenced crime). Moreover, committing dant argues appeal that prison. in Defendant on parents Rita had once resentencing lived with required is the vic because years, than of defen for more two both any tims’ statements are not relevant daugh parents Rita dant’s described as the aggravating specifically factors enumer they mur penalty ter had. Because defendant in our death A.R.S. never ated statute. See 13-703(F) (1989). person many ways in not § dered who was does give family, any we challenge member constitutional to the vic raise family relationship mitigating weight. impact little tim evidence.
386 acknowledge
We
that a
presenting
victim’s rec
testimony
when
victims’
at sen-
appropriate
ommendation on the
is
sentence
tencing
capital
in
opin-
cases. As the court’s
any
not
statutory aggrava
relevant
of our
states,
ion
the survivors’ recommendation on
Bolton,
ting
factors.
tice. We must decide cases to law CORCORAN, MARTONE, ZLAKET and logic, not emotion. do not We sit to JJ., concur. provide revenge, or even solace or catharsis. These must come from other sources.
FELDMAN, Justice, specially Chief concurring I believe the time is near for the court to position forbidding take a
I the introduction of analysis concur both the court’s separately I to emphasize result. write to influence the one calculated sentenc- point continually ignored by ing bench and bar judge in a forbidden manner law. prosecution It not be offered should permitted by the court. AITKEN, Employee, Petitioner
Faith
INDUSTRIAL COMMISSION OF
ARIZONA, Respondent, Schools,
Amphitheater Public
Respondent Employer,
Unigard Company, Insurance
Respondent Carrier.
No. CV-92-0257-PR.
Supreme Court of Arizona.
Oct. notes ing Second, argues court. that the death the record does not indicate that penalty evolving violates standards of decen judge gave any weight trial “considered cy in community. reject the world We both the victims’ recommendations when he sen- Arizona, arguments. See Walton v. 497 U.S. capital tenced Defendant on count.” It is 639, 652-56, 3047, 3056-57, 110 S.Ct. true, however, also the record does (1990); Gregg Georgia, L.Ed.2d 511 judge give any indicate that the trial did not 153, 169-87, 2909, 2923-31, U.S. 96 S.Ct. 49 weight to this evidence. The record is silent. Greenway, L.Ed.2d 859 State v. presumed judges ig- We have will testimony, nore such but one must wonder assumption may how accurate such an be. DISPOSITION sentencing many capital decision enough We have all subjecting considered the issues that cases is difficult without