185 P.3d 111 (Ariz. 2008), CR-05-0174, State v. Boggs

Docket Nº:CR-05-0174-AP.
Citation:185 P.3d 111, 218 Ariz. 325
Opinion Judge:McGREGOR, Chief Justice.
Party Name:STATE of Arizona, Appellee, v. Steve Alan BOGGS, Appellant.
Attorney:Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Capital Litigation Section, Jeffrey A. Zick, Assistant Attorney General, Phoenix, Attorneys for State of Arizona., Bruce Peterson, Acting Legal Advocate by Thomas J. Dennis, Deputy Legal Advocate, Phoenix, Attorneys for St...
Case Date:June 16, 2008
Court:Supreme Court of Arizona
 
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185 P.3d 111 (Ariz. 2008)

218 Ariz. 325

STATE of Arizona, Appellee,

v.

Steve Alan BOGGS, Appellant.

No. CR-05-0174-AP.

Supreme Court of Arizona, En Banc.

June 16, 2008

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Terry Goddard , Arizona Attorney General by Kent E. Cattani , Chief Counsel, Capital Litigation Section, Jeffrey A. Zick , Assistant Attorney General, Phoenix, Attorneys for State of Arizona.

Bruce Peterson , Acting Legal Advocate by Thomas J. Dennis , Deputy Legal Advocate, Phoenix, Attorneys for Steve Alan Boggs.

AMENDED OPINION

McGREGOR , Chief Justice.

¶ 1 On May 12, 2005, a jury determined that Steve Boggs should receive the death penalty for the May 2002 murders of Beatriz Alvarado, Kenneth Brown, and Fausto Jimenez. In accordance with Arizona Rule of Criminal Procedure 31.2(b) , appeal to this Court is automatic. We exercise jurisdiction pursuant to Article 6, Section 5.3 of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) section 13-4031 (2001).

I.

A.

¶ 2 On May 19, 2002, Alvarado, Brown, and Jimenez were working at a fast-food restaurant in Mesa, Arizona.1 After ten p.m., only the drive-through window was open. At approximately 11:15 p.m., as Keith Jones drove toward the drive-through speaker to order food, he noticed an SUV in the parking lot behind the restaurant with a male in the driver's seat. Jones saw three uniformed employees inside the store: a Hispanic woman, a Hispanic man, and a Caucasian man.2

¶ 3 Luis Vargas arrived at the drive-through window between 11:30 and 11:45. After waiting for ten minutes, Vargas yelled to get the attention of someone working at the restaurant and then heard Alvarado moaning. He approached Alvarado, who was lying on the ground outside the restaurant's back door. She told him in Spanish that

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“men entered," “they were robbing," and that she thought “they were still robbing." Vargas backed away from the restaurant and called 911.

¶ 4 Police Officer Daniel Beutal, who responded to the 911 call, talked with Alvarado and understood her to mean that “bad people" might still be in the restaurant. From outside, Beutal could see Jimenez lying on the restaurant floor. Beutal called for backup and a K-9 unit. After other officers arrived, but before entering the restaurant, Beutal moved Alvarado away from the store to the paramedics. Beutal testified that Alvarado repeatedly asked for help; she subsequently died from two gunshots to her back.

¶ 5 Inside the restaurant, the police found Jimenez's body next to a telephone and found Brown's body in the freezer. Brown had died almost immediately from two gunshot wounds, one of which perforated his heart. Jimenez apparently had escaped from the freezer and, shortly after dialing 911, died from three gunshot wounds to his back.

¶ 6 The police found shell casings and bullet projectiles inside the freezer, evidencing that the perpetrators shot the victims there. Two cash registers were open and contained only coins, while the third register was closed but appeared as if someone had tried to pry it open. Approximately $300 had been taken from the registers. Police found a purse inside the office, but did not find a wallet for either Jimenez or Brown. Just after midnight on May 20, a man, later identified as Christopher Hargrave, tried to use Jimenez's bank card at an ATM.

¶ 7 Hargrave, a friend of Boggs, had worked at the restaurant from April 19 to May 15, 2002. Boggs and Hargrave participated in a militia, the “Imperial Royal Guard," which focused on “uplifting" the white race and fostered negative views of minority groups. The Imperial Royal Guard consisted entirely of Boggs as Chief of Staff, Hargrave as Assistant Chief of Staff, and their girlfriends, Amy Willet and Gayle Driver.

¶ 8 Before the murders, Hargrave lived in a trailer on land belonging to his girlfriend's parents, Kay and William Driver. The Drivers allowed Hargrave to live there on the condition that he remain employed. In May 2002, Jimenez, an assistant manager in training at the restaurant, reported Hargrave for twice having a short register. When Hargrave subsequently was fired for the shortages, the Drivers asked him to leave their property.

¶ 9 The Drivers also knew Boggs, who often came into their pawn shop. On May 21, two days after the murders, Boggs took two guns, one of them a Taurus handgun, into the pawn shop to trade for a new gun. William Driver cleaned the Taurus, but placed it in his safe because he had a “feeling" about the transaction. Kay Driver later called police and told them about the Taurus that Boggs had pawned. On June 3, Boggs and Hargrave each called the pawn shop and asked to buy back the Taurus.

¶ 10 The police recovered the gun from the Drivers and conducted several test firings. The State's criminalist concluded that all the shell casings and bullet fragments from the scene, as well as fragments removed from the bodies, were fired from the Taurus. DNA found on the Taurus came from at least three sources. The DNA matched Hargrave's profile at 14 locations; the DNA expert could not eliminate Boggs as a source.

¶ 11 On June 5, Mesa Detective Donald Vogel interrogated Boggs for approximately three hours. Boggs waived his Miranda 3 rights and agreed to answer questions. During the interview, Boggs told several versions of what happened on the day of, and the days following, the murders. Information gained in this interview led to the apprehension of Hargrave the following day.

¶ 12 On June 6, Detectives Kaufman and Price took Boggs to obtain his photograph, fingerprints, and DNA, and to transport him to his initial appearance. As the detectives secured the evidence, Boggs asked Kaufman how he could change the story he had told to Detective Vogel the previous day. En route to his initial appearance, Boggs asked Price how he could change his story. At the initial appearance, Boggs requested counsel, which

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the judge appointed. Subsequently, while returning to jail, Boggs once more asked Kaufman with whom he needed to speak to change his story. Price telephoned Vogel and arranged to take Boggs to the interrogation room for further questioning. Once at the police station, after Boggs informed Detective Vogel that he wished to speak with him, Vogel read Boggs his Miranda rights and again interviewed him.

¶ 13 During the June 6 interview, Boggs first claimed that Hargrave committed all the crimes inside the restaurant and denied knowledge of Hargrave's actions at the time. In his next version of events, he admitted helping to plan a non-violent robbery, but maintained that he remained outside the store as a lookout during the robbery. A short while later, Vogel mentioned Boggs' infant son. When Vogel asked his son's name, Boggs repeated, “Just leave me alone," three times. After Vogel twice offered to leave the room, Boggs began discussing suicide.

¶ 14 Boggs then asked to speak with the prosecutor so that “he could assure me that I would at least in some way be able to still be with my son." Vogel responded that no one could make any promises to Boggs. Vogel also assured Boggs that, whether or not Boggs talked with him, Vogel would ask the jail to place Boggs in protective custody. After more than an hour of interrogation, Boggs confessed to playing an active role in the robbery and admitted shooting at the victims.

¶ 15 In January 2004, Boggs sent a letter to Detective Vogel detailing the order and manner in which the deceased employees fell to the ground and stating that he wished to speak with Vogel in person. Boggs also stated that his motivation for the murders was not pecuniary, but rather, based on race.

¶ 16 In June 2004, Boggs moved to represent himself. During the following months, the trial judge discussed several times the repercussions of proceeding in propria persona (pro per) and attempted to dissuade Boggs from doing so. The following September, the court granted his motion and appointed advisory counsel. While acting pro per, Boggs complained to the trial judge of interference by the Maricopa County Sheriff's Office (MCSO) with his self-representation. Specifically, Boggs claimed that the MCSO seized legal documents from his cell and refused to provide him items sent to the jail by his advisory counsel.

¶ 17 Meanwhile, Detective Vogel and the prosecutor received threatening letters, allegedly sent by Boggs. In response, the MCSO began searching Boggs' cell and confiscating items. After Vogel warned the MCSO employees not to proceed without a warrant, they moved Boggs to a different cell, replaced the items, and waited for a search warrant before resuming the search. A detective took the confiscated materials to a superior court judge who had been appointed as a special master for the purpose of reviewing the items for relevance as to the warrant. The jail staff ultimately confiscated eighteen items and returned those items that the special master deemed improperly seized. The prosecutor did not see any of the privileged items confiscated during the search. Boggs' advisory counsel was informed of the special master's independent review, but declined to participate or review the seized items. Boggs alleged that certain legal documents, including discovery items, were never returned. The trial judge recommended that both parties review the property to determine what items, if any, may have been missing.

¶ 18 On March 23, 2005, Boggs filed a motion to dismiss based on the search and seizure of items from his cell. The trial judge addressed the issue on April 4, 2005, when Boggs told the...

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