State v. Routhier
| Citation | 137 Ariz. 90,669 P.2d 68 |
| Decision Date | 06 July 1983 |
| Docket Number | No. 5390,5390 |
| Parties | STATE of Arizona, Appellee, v. Dennis Earl ROUTHIER, Appellant. |
| Court | Supreme Court of Arizona |
Ross P. Lee, Maricopa County Public Defender by Robert D. Bohm, Terry J. Adams, Phoenix, for appellant.
A jury found appellant, Dennis Earl Routhier, guilty of first degree murder and attempted first degree murder. He was sentenced to death on the first degree murder charge and to 21 years on the charge of attempted first degree murder. Appellant appeals these convictions and sentences. We have jurisdiction of this case pursuant to Arizona Const. art. 6 § 5 and A.R.S. § 13-4031.
The appellant raises seven issues on appeal but we believe the answers to the following questions will be dispositive of the appeal:
1. Whether the scope of the prosecutor's cross-examination of the appellant violated his fifth and fourteenth amendment rights.
2. Whether photographs of the deceased and a bloody shirt were erroneously admitted into evidence.
3. Whether the trial court erred in not granting appellant's motion for acquittal on the count of attempted murder.
The following facts are necessary for a resolution of the issues presented.
On the morning of September 20, 1980, Lawrence Barrick and his son, Robert, stopped the vehicle in which they were travelling to aid a man who had flagged them down. Dennis Earl Routhier, appellant, told the Barricks he was having trouble with his truck. The Barricks drove the appellant to his truck, which was parked some distance off the main road. When the three men arrived at the truck, a '56 Chevy, the appellant stated he would make one more attempt to start it. The truck started unaided. The three men then sat on the tailgate of the Barricks' truck and drank some beer.
After finishing their beer, the Barricks drove to a friend's house. The appellant was invited to follow them in his own truck, and he did. The Barricks' friend was not at home so they decided to drive out to Roosevelt irrigation canal and take a swim. The appellant followed the Barricks to the canal.
Robert Barrick jumped into the canal and swam for five to ten minutes. As Robert began to climb out of the canal, the appellant approached him and hit him in the head with a hammer. Robert was cut and knocked unconscious for a few seconds. He testified that appellant asked him if he had any money, to which Robert replied "No." Appellant then instructed Robert to get out of the canal or his father would be harmed. At this point Robert noticed that his father was slumped over on the ground by his truck. Robert climbed the opposite bank of the canal and ran to the nearby freeway to summon help.
Meanwhile, the appellant sped away in his truck. When the police arrived at the scene, they found Lawrence Barrick beaten and bleeding profusely from the head and neck. He died soon afterwards. Medical testimony revealed that he died of multiple wounds inflicted by a blunt instrument.
Later that afternoon, police apprehended the appellant after a high speed chase on the freeway. The chase terminated when the appellant's truck swerved into a semi-truck and rolled off the freeway. The appellant was taken into custody and admitted to Good Samaritan Hospital for treatment of head and leg injuries.
Appellant's testimony at trial was that he killed Lawrence Barrick in self-defense. He claimed that Barrick attacked him without reason and appellant only used his hammer when Barrick tried to gouge his eye out. Additional facts pertinent to questions raised by the appellant will be discussed as necessary.
On the morning of September 21, 1980, Detective Barber of the Phoenix Police Department visited the appellant at Good Samaritan Hospital. The appellant was informed of his rights to silence and to the services of an attorney. He stated that he understood his rights and was willing to submit to questioning. Appellant signed a waiver of rights card, and the interrogation began. During the interrogation the appellant indicated that he remembered meeting an old man and his son, having a disagreement with the old man and hitting both individuals with his fists. When asked by Detective Barber whether he had used a hammer, the appellant stated that he may have been mad enough to use one, but he did not believe that he had. Detective Barber then asked the appellant to elaborate on specific details, but the appellant stated Three days after the first interview at Good Samaritan Hospital, before counsel had been provided him, the appellant was interrogated a second time by a Detective Locksa. The interrogation was conducted at the detention ward of Maricopa County Hospital, where the appellant had been transferred from Good Samaritan Hospital. Detective Locksa had been advised by Detective Barber of the appellant's previous request for counsel. The appellant was again informed of his rights to silence and legal representation. Detective Locksa further told the appellant that he did not want to discuss the Barrick homicide but that he wanted to discuss two unrelated homicide cases. The appellant stated that he was willing to talk to the detective. In response to Detective Locksa's questions regarding these unrelated homicides, the appellant implicated himself in the Barrick homicide. His precise words were,
that he wanted to speak with an attorney. At that point, the questioning ceased.
The appellant was charged by indictment with having committed first degree murder and attempted first degree murder. Subsequently, pursuant to a plea agreement, the appellant appeared before the superior court to enter a no contest plea. At the hearing on the no contest plea a set of police reports and the medical examiner's report were admitted into evidence to establish a factual basis for the plea.
Before the plea was accepted by the superior court, the appellant asked to withdraw the plea. The request was granted, and the case was transferred to another superior court judge.
Prior to trial, the appellant moved to suppress all of his hospital statements 1 on the grounds that they were involuntary due to appellant's physical condition at the time of interview. No mention was made of the appellant's request for counsel in his motion to suppress or at the voluntariness hearing. Both Detectives Barber and Locksa testified at the voluntariness hearing and neither one mentioned the appellant's request for counsel. The appellant's motion to suppress his statements was denied. The trial court found that the statements were voluntarily made after the appellant had waived his constitutional rights.
At trial, when the appellant was being cross-examined, the fact of his request for counsel was brought out by the prosecution. At that point defense counsel made a motion to preclude any questioning of the appellant regarding statements made by him during the second interview on the grounds of inadequate showing of Miranda 2 compliance. The trial judge denied the motion stating that he had already ruled that the statements were voluntary and admissible. Defense counsel, however, did not make any motion concerning the cross-examination of appellant on matters to which he had invoked his right to silence and counsel.
The prosecutor then questioned the appellant on the substance of his incriminating statement to Detective Locksa. Specifically, the prosecutor read the statement in court and asked the appellant if he remembered making it. The appellant stated he did not remember making such a statement.
Detective Barber was recalled by the state in rebuttal, and he testified that the appellant had invoked his right to counsel during the first interview at Good Samaritan Hospital and that he told Detective Locksa before Locksa interviewed the appellant a second time, that the appellant had previously invoked his right to counsel. Detective Locksa testified that Detective Barber had, in fact, informed him that the appellant requested an attorney when Barber was interviewing the appellant.
Appellant challenges the admission of his hospital statements.
The appellant argues that he was denied due process by the prosecutor's reference to his post-arrest silence. During cross examination of appellant the following testimony was elicited.
Q. [by the prosecutor] But you don't remember that you had told them that it was possible that you used a hammer?
A. Oh, yes, I think I might have told them it was possible I might have.
Q. But you didn't tell them that the man had been gouging your eye out, did you?
A. I don't recall. I don't think so. I don't think I'd want to tell them that.
Q. Why not?
A. Well, after I found out where I was and what I was--you know, the situation I was in, I wanted to speak to a lawyer. I do recall asking him that or telling him that--not him, but the other officer I talked to. I do recall saying I'd just as soon speak to an attorney, yes. I did hit the man, that's all I recall saying. However I put it, that's exactly what I meant out of it was, yes, I did hit the man, and, yes, I'd like to see an attorney. They proceeded asking questions after I told them I wanted to see an attorney and kept on and on. What they got off that, I don't know. I'm sure it was just, you know, to show them that I was not gonna talk anymore.
Q. But at that time you at no point mentioned any kind of self-defense?
A. I don't think so. No, I didn't discuss any of the details with them.
The State also brought out in its case in chief on redirect examination of Detective Barber the following:
Q. BY MR. HOTHAM [the prosecutor...
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