68 P.3d 110 (Ariz. 2003), CR-01-0091, State v. Tucker

Docket Nº:CR-01-0091-AP.
Citation:68 P.3d 110, 205 Ariz. 157
Opinion Judge:[9] The opinion of the court was delivered by: Ryan, Justice
Party Name:STATE of Arizona, Appellee, v. Eugene Robert TUCKER, Appellant.
Attorney:[7] Janet A. Napolitano, Former Attorney General, Phoenix Terry Goddard, Attorney General By: Kent E. Cattani, Chief Counsel, Capital Litigation Section and: Dawn M. Northup, Assistant Attorney General Robert L. Ellman, Assistant Attorney General James P. Beene, Assistant Attorney General John P....
Case Date:May 05, 2003
Court:Supreme Court of Arizona

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68 P.3d 110 (Ariz. 2003)

205 Ariz. 157

STATE of Arizona, Appellee,


Eugene Robert TUCKER, Appellant.

No. CR-01-0091-AP.

Supreme Court of Arizona

May 5, 2003.

En Banc.

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[Copyrighted Material Omitted]

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[205 Ariz. 159] Janet A. Napolitano, Former Attorney General, Terry Goddard, Attorney General By: Kent E. Cattani, Chief Counsel, Capital Litigation Section, and Dawn M. Northup, Assistant Attorney General, Robert L. Ellman, Assistant Attorney General, James P. Beene, Assistant Attorney General, John P. Todd, Assistant Attorney General, Phoenix, Bruce M. Ferg, Assistant Attorney General, Tucson, Attorneys for Appellee.

James J. Haas, Maricopa County Public Defender By: Christopher V. Johns, Deputy Public Defender, James H. Kemper, Deputy Public Defender, Phoenix, Attorneys for Appellant.


RYAN, Justice.

¶ 1 Eugene Robert Tucker was convicted of three counts of first degree murder for the July 15, 1999, deaths of AnnMarie Merchant, Roscoe Merchant, and Cindy Richards. Tucker was also found guilty of sexual assault, kidnapping, and burglary in the first degree. He was sentenced to death for each of the first degree murder counts. Tucker received the following sentences for his other crimes: Twenty-five years to life for the sexual assault conviction, twenty-one years for the kidnapping conviction, and twenty-one years for the burglary conviction. These sentences were ordered to be served consecutively.

¶ 2 Appeal to this court is mandatory and automatic when a trial court imposes a sentence of death. Ariz. R.Crim. P. 26.15 and 31.2(b). This court has jurisdiction under Article 6, Section 5(3), of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") section 13-4031 (2001).

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¶ 3 AnnMarie Merchant and Roscoe Merchant were sister and brother. Cindy Richards was Roscoe's girlfriend. Tucker had a relationship with AnnMarie for nearly a year before her death. He had known Roscoe for slightly longer. Tucker and AnnMarie had engaged in sexual intercourse at least twice. Tucker also had visited the apartment where the murders took place on a number of occasions.

¶ 4 AnnMarie often spoke on the telephone to family and friends. She was in regular contact with her aunt, Hope Barnes, with whom she had a close relationship. AnnMarie spoke almost daily with her cousin, Cassandra Barnes, Hope's daughter, with whom she also had a close relationship.

¶ 5 On the evening of July 15, 1999, after a number of telephone calls to the Merchant apartment went unanswered, Hope's husband called the police. When police arrived at the apartment, they found AnnMarie's body face down with her hands behind her back. Her mouth was covered by duct tape. She was dressed in only a gray tee-shirt and bra. A pair of jeans was found near her body. Physical evidence obtained from AnnMarie's body included semen residue on her left inner thigh and on the front of her tee-shirt. Testing of these semen samples resulted in a fourteen-point match with Tucker's DNA. 2

¶ 6 Police found a single fingerprint belonging to Tucker at the crime scene. It was located on the handle of the refrigerator door.

¶ 7 During a search of the Tucker home, the police recovered a roll of duct tape. Tests on the roll of tape did not disclose any biological material linked to AnnMarie. A side-by-side comparison of the tape found on AnnMarie's body and the tape found at the Tucker home indicated some similarities, but not a conclusive match.

¶ 8 Ligature marks on AnnMarie's wrists indicated that she may have been handcuffed. Three pairs of handcuffs were recovered during the search of Tucker's home. The medical examiner did not compare the seized handcuffs to the marks on AnnMarie's wrists. All three pairs of handcuffs were tested for the presence of biological material, but none was found linking the handcuffs to AnnMarie. At trial, Tucker testified that he had the handcuffs because he was taking law enforcement classes in school.

¶ 9 AnnMarie's body had a ligature mark around the neck. The medical examiner testified it could have been made by a length of telephone cord found near the body. The medical examiner indicated that the ligature mark was made before AnnMarie's death.

¶ 10 AnnMarie was bludgeoned several times on the top and back of her head by a blunt instrument. A broken glass table top and the general disarray of the room indicated an intense struggle took place. The medical examiner believed that the weapon used to inflict the head wounds was cylindrical and one-quarter to one-half inch in diameter. A search of the crime scene, the surrounding area, and the Tucker home yielded no object matching those dimensions that contained any biological material that came from AnnMarie.

¶ 11 AnnMarie had bruising around her vagina and anus. The medical examiner testified that the extent of the bruising was not a normal result of sex. She opined that the victim had been made to suffer based on the depth of the bruising.

¶ 12 AnnMarie suffered two gunshot wounds to the head. The shots were fired at close range. The medical examiner found that the cause of AnnMarie's death was two gunshot wounds, blunt force trauma, and strangulation. She indicated these were all contributing factors and could not isolate any one of them as the cause of death.

¶ 13 Roscoe's and Cindy's bodies were found in a separate bedroom lying in their bed. Each had a single gunshot wound to

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[205 Ariz. 161] the head. Cindy also had a "through and through" gunshot wound to her thumb. The medical examiner could not determine whether Roscoe and Cindy were awake or asleep when they were shot. Cindy's seven-month-old son was found unharmed lying nearby in his crib.

¶ 14 The State's ballistics expert testified that the slugs recovered from all the victims were from .38 caliber bullets. The lands and grooves on one of the slugs indicated it most likely was fired from a Colt weapon. No gun was found at or near the crime scene matching that description. A search of Tucker's home turned up only a Smith & Wesson .357 caliber handgun.

¶ 15 The ballistics expert testified that the weapon found in Tucker's home was not the murder weapon. Police found a number of different types of .38 caliber bullets in the Tucker home. The State presented evidence that .38 caliber bullets can be fired from a .357 gun. But because no shell casings were found at the crime scene, police could not make a comparison with the bullets found in Tucker's home. Furthermore, the type of bullet that killed all three victims was different from any of the types of bullets found in the Tucker home.

¶ 16 At trial, Tucker contended that the physical evidence found at the crime scene, his fingerprint and semen, could be explained by his prior visits to the apartment and prior sexual contact with AnnMarie. He testified that he had cooperated with the police by voluntarily agreeing to be interviewed and giving a blood sample. He attempted to counter the State's theory that he murdered the victims because of AnnMarie's rejection of his sexual advances by claiming the relationship had ended by mutual agreement and that he had another girlfriend at the time. However, Tucker did not know this girlfriend's last name or her telephone number, and he could not remember when they started seeing each other.

¶ 17 Tucker also raised an alibi defense. His mother claimed that he was home helping her with yard work at the time the murders took place. Mrs. Tucker testified that she had taken the day off from work specifically to do yard work and that Tucker was home with her all day. His father testified that Tucker was doing yard work with his mother when he arrived home from work in the afternoon on the day of the murders. Dennis Hall, a postal carrier, testified that he saw Mrs. Tucker and a young man who resembled Tucker doing yard work on the day of the murders.

¶ 18 The jury found Tucker guilty on all counts. Following the verdict, the court held an aggravation and mitigation hearing. The State proved three aggravating factors: (1) Tucker knowingly created a grave risk of death to Cindy's baby by killing all of his care givers and leaving him alone in the house, A.R.S. § 13-703(F)(3) (2001); (2) the murder of AnnMarie was especially cruel, and all the murders were heinous and depraved, A.R.S. § 13-703(F)(6); and (3) Tucker had been convicted of other homicides that were committed during the commission of the offense, A.R.S. § 13-703(F)(8). Tucker claimed his young age, A.R.S. § 13-703(G)(5), rehabilitation potential, good character, and lack of prior criminal history as mitigating factors. See A.R.S. § 13-703(G). The court found Tucker's age and lack of criminal history to be mitigating factors, but rejected Tucker's claims of good character and rehabilitation potential as mitigating factors. The court found the aggravating factors outweighed the mitigating factors and sentenced Tucker to death on all three first degree murder counts.

II. Discussion


¶ 19 Tucker claims that the trial court should have disqualified his trial counsel, Greg Clark, because of a conflict of interest. He contends that Clark had an actual conflict of interest that prevented him from pursuing a third-party defense that would have implicated a former client of Clark.

¶ 20 Well before the trial, the State filed a motion to determine counsel. The motion alleged that Clark might have a conflict because he had represented Patrick Kozakiewicz, a potential witness in Tucker's case. Kozakiewicz and Tucker knew each other. During police interviews, Tucker indicated

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[205 Ariz. 162] that Kozakiewicz knew, and did not like, Roscoe. The State's...

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