State v. Woratzeck

Citation657 P.2d 865,134 Ariz. 452
Decision Date17 December 1982
Docket NumberNo. 5142,5142
PartiesSTATE of Arizona, Appellee, v. William Lyle WORATZECK, Appellant.
CourtSupreme Court of Arizona

Robert K. Corbin, Atty. Gen. by William J. Schafer, III and Michael D. Jones, Asst. Attys. Gen., Phoenix, for appellee.

Charles L. Weninger, Tucson, for appellant.

HAYS, Justice.

Linda Louise Leslie was a 36-year-old woman who, because of Huntington's disease, had the mental capacity of a 15-year-old. She lived in Casa Grande, Arizona, in a shed rented from appellant and attached to his trailer. In March, 1980, Linda Leslie was robbed of approximately $107 and was killed. She was strangled, stabbed in the chest and abdomen and beaten on the head; her body and house were burned.

William Lyle Woratzeck was indicted by the Pinal County Grand Jury for robbery, burglary, arson, and first degree murder in connection with the death of Leslie. He was convicted by a jury of first degree murder, armed robbery and burglary of a residential structure. The sentencing judge found two aggravating circumstances and no mitigating ones and sentenced appellant to death.

We take jurisdiction pursuant to A.R.S. § 13-4031 and we affirm.

Appellant presents us with these questions for decision:

1. Was the admission of alleged hearsay testimony at the trial prejudicial error?

2. Did the trial court err in denying appellant's petition for post-conviction relief based on the admission of hypnotically induced testimony at the trial? 3. Did the trial court err in refusing to give appellant's requested jury instructions regarding the mental state required for felony murder?

4. Did the trial court err in its jury instruction defining the crime of armed robbery?

5. Did the trial court err in denying appellant's motion to suppress the physical evidence provided by appellant's wife?

6. Was it error for the trial court to refuse appellant's requested instruction regarding the requisite connection between the death and the underlying felony?

7. Does the Arizona death penalty statute allow arbitrary infliction of the death penalty in violation of constitutional principles of due process?

8. Did the trial court abuse its discretion in sentencing appellant to death?

I

Appellant asserts that his sixth-amendment right to confront witnesses against him was violated by the trial judge's admission of alleged hearsay testimony.

Roy and Neva Vaughn had helped to care for Linda Leslie. At the trial, defense counsel asked Roy Vaughn if he knew whether someone had threatened to come and get Linda if she reported a certain incident to the police. Roy Vaughn testified that he had heard about this from Linda, but he didn't know of whom she was speaking. Counsel then asked if Roy Vaughn knew why someone had threatened Linda. Roy Vaughn said it was because that person had robbed and raped Linda. After Roy Vaughn stepped down, the state called Neva Vaughn and asked her about the rape and robbery. Neva Vaughn said she had heard about it from Linda and that Linda had told her her landlord had done it. Defense counsel did not object to this testimony.

Objections to admission of testimony may be waived, either by failure to assert them or by conduct implying waiver. See 75 Am.Jur.2d Trial § 173 (1974). Here, not only did defense counsel fail to object to the testimony, he opened the door to inquiry about the defendant's involvement in the rape-robbery incident by introducing and developing the topic on examination of Roy Vaughn. When counsel opens the whole field of inquiry, he cannot assign its fruits as error on appeal. State v. Arriola, 99 Ariz. 332, 409 P.2d 37 (1965).

Appellant next claims if we find the error was invited, we must find defendant's counsel ineffective. We disagree. In State v. Watson, 134 Ariz. 1, 653 P.2d 351 (1982), we set out the standard for judging competency of counsel. Minimal professional competence is what is now required. As noted in Watson, we have always held that disagreements as to trial strategy or errors in trial tactics will not support an ineffectiveness claim as long as the challenged conduct could have had some reasoned basis. Here, defense counsel might have hoped to elicit testimony from Roy Vaughn to suggest someone other than appellant had committed the murder. There is no other claim against counsel's effectiveness, and from the record it appears his performance was adequate. There was no error in admitting Neva Vaughn's testimony and no ineffective assistance of counsel.

II

Appellant contends he should have been given a new trial on his petition for post-conviction relief. He argues he was prejudiced by the admission into evidence of Rosemary Martinez's testimony because she had been hypnotized during pretrial investigation by the state. Rosemary gave four pretrial interviews and was hypnotized prior to the third one. Her testimony at trial was consistent with all the interviews and she gave no new evidence after being hypnotized.

Since State ex rel. Collins v. Superior Court, etc., 132 Ariz. 180, 644 P.2d 1266 (1982), and State v. Mena, 128 Ariz. 226, 624 P.2d 1274 (1981), a witness is incompetent to testify about events recalled after hypnosis. However, Rosemary Martinez's hypnosis and testimony occurred prior to our decision in Mena and in such cases we will not reverse the conviction if admitting the testimony was harmless error. Here, since Rosemary Martinez's testimony before and after hypnotism was consistent and no new evidence was presented by her after hypnotism, we find Woratzeck was not prejudiced by its admission and any error was harmless. State v. Gerlaugh, 134 Ariz. 164, 654 P.2d 800 (1982).

III

Appellant requested the following instructions be given to the jury:

"Before you may find a person guilty of murder in the first degree based upon the commission or attempted commission of a robbery, you must find evidence that the accused had the specific intent to commit robbery at the time that an act which caused death was committed."

and

"Before you may find a person guilty of murder in the first degree based upon the commission or attempted commission of a burglary, you must find that there is evidence, independent of the fact of the homicide which shows that the accused had the specific intent at the time of entry to commit a felony or theft."

The trial court refused these instructions and appellant assigns error.

Refusal of a requested instruction is not error where the jury is adequately instructed on defendant's theory of the case, and the proposed instruction was an incorrect statement of the law. State v. Miller, 128 Ariz. 112, 624 P.2d 309 (1981). These instructions are not correct expressions of the law in Arizona. Felony murder requires no specific mental state other than that which is required for the commission of any of the felonies enumerated in the statute. A.R.S. § 13-1105(B); State v. Arias, 131 Ariz. 441, 641 P.2d 1285 (1982). The judge instructed the jury on the mental states required for robbery, armed robbery and burglary and gave the following instruction taken directly from the felony murder statute, A.R.S. § 13-1105(A)(2):

"The crime of First Degree Murder requires proof of the following two things:

1. The defendant committed or attempted to commit Burglary or Robbery.

2. In the course of and in furtherance of the crime or immediate flight from the crime, the defendant or another person caused the death of any person."

There was no error.

IV

Woratzeck contends the trial judge erred in giving the following instruction:

"The crime of armed robbery requires proof of the following two things:

1. The defendant committed a robbery; and

2. The defendant was armed with a deadly weapon, or used or threatened to use a dangerous instrument."

Defense counsel objected to this instruction on the ground that mere possession of a dangerous instrument is insufficient and that there must be evidence that the defendant used the instrument to obtain the property of another. There was ample evidence to show appellant used a dangerous instrument in committing the robbery. Two knives were found at the crime scene and the victim was stabbed.

The instruction given is taken directly from the armed robbery statute, A.R.S. § 13-1904, and was a correct statement of the law. There was no error in giving the armed robbery instruction.

V

Woratzeck contends the trial court erred in denying his motion to suppress physical evidence provided by his wife. Mrs. Woratzeck consented to a search of the home and showed the police where to find the clothing her husband had worn the night of the crime. Appellant argues this consent was invalid. We disagree. In Yuma County Attorney v. McGuire, 111 Ariz. 437, 532 P.2d 157 (1975), we held that a spouse may consent to a search of the couple's home when each spouse exercises control and dominion over the home and the other spouse is not present but is a suspect in a crime. Appellant's arguments have not persuaded us that we should depart from this rule. The trial court was correct in denying the motion to suppress.

VI

Appellant contends that the trial court erred in refusing to give this instruction on first degree murder:

"The accused cannot be convicted of murder in the first degree unless the death and the robbery or burglary were parts of one continuous transaction and were closely connected in point of time, place and causal relation. If you find that the crime of robbery or burglary was completed, terminated or abandoned prior to an act which caused death or that the intent to commit or attempt to commit robbery or burglary arose after the death, then you cannot find the accused guilty of first degree murder."

The court refused that instruction and gave this one:

"The crime of First Degree Murder requires proof of the following two things:

1. The defendant committed or attempted to commit Burglary or Robbery.

2. In the course of and in...

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