State v. Martinez-Villareal, MARTINEZ-VILLAREA

• Decision Date: 10 July 1985
• Docket Number: No. 5963,MARTINEZ-VILLAREA,A,5963
• Citation: 702 P.2d 670,145 Ariz. 441
• Parties: STATE of Arizona, Appellee, v. Ramonppellant.
• Court: Arizona Supreme Court

Page 670

702 P.2d 670

145 Ariz. 441

STATE of Arizona, Appellee, v. Ramon MARTINEZ-VILLAREAL, Appellant.

No. 5963.

Supreme Court of Arizona, In Banc.

July 10, 1985.

Robert K. Corbin, Atty. Gen. by William J. Schafer, III, Diane M. Ramsey, Barbara A. Jarrett, Asst. Attys. Gen., Phoenix, for appellee.

William I. Rothstein, Nogales, for appellant.

HOLOHAN, Chief Justice.

Appellant, Ramon Martinez-Villareal, was tried and convicted of two counts of first degree murder and one count of first degree burglary. He was sentenced to a term of 10 years for the burglary and to death for the double homicides. Further, appellant pled guilty to a third degree burglary and was sentenced to a term of two and one-half years to be served concurrently with the other sentences. This court has jurisdiction of the appeal pursuant to A.R.S. §§ 13-4031, -4035.

On appeal, appellant raises the following issues:

(1) Whether the trial court properly consolidated a count of burglary with the murder charges three weeks prior to trial.

(2) Whether the trial court properly refused appellant's requested jury instruction on the lesser-included offense of second degree murder.

(3) Whether the trial court erred in admitting evidence of an undisclosed prior bad act.

(4) Whether the trial court erred in admitting a Mexican police officer's testimony when his written reports had not been disclosed to the defense.

(5) Whether the death penalty was properly imposed:

(a) Were jurors systematically excluded because of their opposition to the death penalty?

(b) Did the trial court satisfy the requirements of Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), by determining, beyond a reasonable doubt, that appellant "killed, attempted to kill, or intended to kill?"

(c) Did the trial court err in not finding lack of intent to kill as a mitigating circumstance?

(d) Did the trial court properly determine that the homicides were "depraved" within the meaning of A.R.S. § 13-703?

(e) Did the trial court consider mitigating circumstances pursuant to A.R.S. § 13-703(G)?

FACTS

Over the weekend of October 8-10, 1982, the Bailey residence in Tumacacori, Arizona was burglarized. Among the missing items were several high caliber rifles, ammunition, clothing, towels, and custom jewelry. No suspects were apprehended.

On October 14, 1982, Jim McGrew and his ranch hand, Fernando Estrada, were discovered shot to death in a remote area of the Salero Ranch in Santa Cruz County. Sheriff's investigators at the murder scene discovered two distinctive sets of footprints, appellant's fingerprints on the rearview mirror of the ranch truck belonging to McGrew, and ammunition and personal effects later determined to have been taken from the Bailey residence. The autopsy revealed that the victims had died of gunshot wounds to the chest. There were no suspects developed in the initial stages of the murder investigation.

Approximately one month after the murders, while investigating a burglary which had occurred at the Aycock residence, the investigators found the same two distinctive sets of footprints discovered at the murder scene.

On November 24, 1982, Sheriff's Deputies tracked footprints identical to those found at the murder scene and at the Aycock burglary. They followed the footprints to Tubac, Arizona, where they found appellant, and a companion, David Meza-Monreal, hiding. Appellant was wearing boots which made the distinctive tracks. He also had in his possession items taken from the Bailey burglary. The two were arrested and advised several times, in Spanish, of their Miranda rights, which they acknowledged understanding. Appellant was transported to the Santa Cruz County Sheriff's Office, booked, and readvised of his rights. He agreed to answer the officers' questions. Officers asked him if he had been at the Salero Ranch approximately one month prior and if a murder had been committed. Appellant denied knowledge of a murder. When told that his footprints were found at the murder scene, appellant admitted being present at the scene, but claimed he did not kill or shoot anyone. He characterized his involvement as an unwilling participant. Appellant implicated two companions he claimed to have been traveling with, Mario Gomez-Jiminez and David Meza-Monreal. Appellant told police that sometime after the Bailey residence was burglarized, the group came across McGrew and Estrada working on the Salero Ranch. When McGrew and Estrada left, appellant and the others waited overnight for McGrew and Estrada to return to work the following day to take their money and truck. When McGrew and Estrada returned, appellant stated that he acted only as lookout. He further maintained that the murders occurred when one of his companions went berserk during the robbery. His only role, he claimed, was being forced to drive McGrew's pick-up truck.

When police questioned David Meza-Monreal about the murders, he told Sheriff's Deputies that all he knew was what appellant had told him while they were traveling from Nogales to Durango, Mexico. He maintained that the appellant related to him the story of the killings on the Salero Ranch during their travels. Appellant told Meza-Monreal that he and a boy had killed an American and a Mexican. Meza-Monreal testified that appellant told him that he killed "because of his pure balls, that he was very macho." The officers verified that Meza-Monreal had met appellant approximately two weeks before they were apprehended together while Meza-Monreal was working at the Nogales train station. Meza-Monreal had apparently seen appellant sell a camera and equipment to the Terminal Chief for Train Operations. Based on information provided by Meza-Monreal, property stolen from the Bailey and Aycock burglaries was recovered in Mexico.

On December 10, 1982 Sheriff's Deputies traveled to Hermosillo, Mexico and photographed several high caliber rifles that the authorities had confiscated from appellant and one Mario Gomez-Jiminez. Appellant had been arrested on October 19, 1982 in Empalme, Mexico for possession of the weapons but was later released. These weapons matched the rifles stolen from the Bailey residence, and they were identified at trial as the murder weapons.

1. Consolidation of Burglary Count

Appellant contends it was reversible error for the trial court to grant the prosecution's motion to consolidate the Bailey burglary charge and the murder counts three weeks prior to trial. Appellee asserts that appellant waived the consolidation issue for purposes of appeal because a motion for severance was not made during trial or before the close of the evidence. In the absence of waiver, the State urges that consolidation was proper because the offenses were part of a "continuing series of events," and evidence of the burglary charge would have been admissible at the murder trial "to complete the picture" even if severance had been granted.

Rule 13.3 of the Arizona Rules of Criminal Procedure, 17 A.R.S. governs joinder and consolidation of criminal offenses. Rule 13.3(a) requires that offenses be related before they can be consolidated or joined. Accordingly, offenses can be joined or consolidated only if they:

(1) Are of the same or similar character; or

(2) Are based on the same conduct or are otherwise connected together in their commission; or

(3) Are alleged to have been a part of a common scheme or plan.

Id. Provided the offenses fit into one or more of these categories, Rule 13.3(c) permits consolidation "in whole or in part by the court or upon motion of either party, provided that the ends of justice will not be defeated thereby." Id.

The state argued in the trial court that the burglary and murder counts should be consolidated because the same evidence that would be brought out at the murder trial would also be presented at the burglary trial. Appellant opposed consolidation before the trial court on the grounds that the jury might be confused by the consolidated burglary and murder counts where much of the evidence would overlap, and that consolidation only three weeks prior to the scheduled murder trial did not provide adequate time for the preparation of a meaningful defense. Appellant did not attempt to refute the State's characterization of the relationship between the two crimes. Contrary to appellant's representation that "late" consolidation left counsel only three weeks to prepare a defense to the burglary charge, the facts indicate that as early as January 24, 1983 the prosecutor had represented on the record that the burglary and murder counts probably would be consolidated. ¹

Generally, joinder of offenses is permitted when they are "based on the same conduct or are otherwise connected together in their commission[.]" Rule 13.3(a)(2), Arizona Rules of Criminal Procedure, 17 A.R.S. The state's case on the murder charges involved presenting evidence which identified the murder weapons and connecting those weapons as having been in the possession and control of the appellant during the period relevant to the murders. The evidence of the burglary of the Bailey residence was so connected with the murder case that it would have necessarily been admitted even if the burglary had not been charged as a separate count. See State v. Villavicencio, 95 Ariz. 199, 201, 388 P.2d 245, 246-47 (1964).

We have in other cases permitted the joinder of different crimes in a single trial where the offenses arose out of a series of connected acts, and the offenses were provable by much the same evidence. See State v. Gretzler, 126 Ariz. 60, 73, 612 P.2d 1023, 1036 (1980); State v. Via, Jr., --- Ariz. ---, 704 P.2d 238, 244 - 246 (1985).

The federal rule on joinder (Rule 8(a), Federal Rules of Crim.Proc.), which is similar to our Rule 13.3(a), has been held to permit joinder of offenses where "the offenses arose out of a series of connected acts, and the evidence as to each count, of necessity, overlaps."...