734 P.2d 563 (Ariz. 1987), 6457, State v. LaGrand

Docket Nº:6457.
Citation:734 P.2d 563, 153 Ariz. 21
Opinion Judge:[10] Gordon
Party Name:STATE of Arizona, Appellee, v. Walter Burnhart LaGRAND, Appellant.
Attorney:[7] Robert K. Corbin, Atty. Gen., William J. Schafer III, Chief Counsel, Crim. Div., Diane M. Ramsey, Gary A. Fadell, Asst. Attys. Gen., Phoenix, for appellee. [8] O'Dowd, Burke & Lundquist by Bruce A. Burke, Tucson, for appellant.
Case Date:January 30, 1987
Court:Supreme Court of Arizona
 
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Page 563

734 P.2d 563 (Ariz. 1987)

153 Ariz. 21

STATE of Arizona, Appellee,

v.

Walter Burnhart LaGRAND, Appellant.

No. 6457.

Supreme Court of Arizona.

January 30, 1987

Page 564

[Copyrighted Material Omitted]

Page 565

[153 Ariz. 23] Robert K. Corbin, Atty. Gen., William J. Schafer III, Chief Counsel, Crim. Div., Diane M. Ramsey, Gary A. Fadell, Asst. Attys. Gen., Phoenix, for appellee.

O'Dowd, Burke & Lundquist by Bruce A. Burke, Tucson, for appellant.

GORDON, Chief Justice.

On February 17, 1984, appellant Walter LaGrand and his half-brother, Karl Hinze LaGrand, were convicted by a jury of murder in the first degree; attempted murder in the first degree; attempted armed robbery; and two counts of kidnapping. Both were sentenced to death for the first degree murder and to concurrent terms of years for the other charges. Both brothers challenge their convictions and sentences; however, their appeals have not been consolidated and we address issues raised by each in separate opinions. We have jurisdiction to hear Walter LaGrand's appeal pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. §§ 13-4031 and -4033.

This case arises from a series of events which occurred during a bungled attempt to rob the Valley National Bank in Marana, Arizona, on January 7, 1982. That morning Walter and Karl LaGrand drove from Tucson, where they lived, to Marana intending to rob the bank. They arrived in Marana sometime before 8:00 a.m. Because the bank was closed and empty the LaGrands drove around Marana to pass time. They eventually drove to the El Taco restaurant adjacent to the bank. Ronald Schunk, manager of El Taco, testified that he arrived at work at 7:50 a.m. The moment he arrived, a car with two men inside drove up to the El Taco. Schunk described the car as white with a chocolate-colored top. The car's driver, identified by Schunk as Walter LaGrand, asked Schunk when the El Taco opened. Schunk replied, "Nine o'clock." The LaGrands then left.

Dawn Lopez arrived for work at the bank at approximately 8:00 a.m. When she arrived at the bank she noticed three vehicles parked in the parking lot: a motor home; a truck belonging to the bank manager, Ken Hartsock; and a car which she did not recognize but which she described as white or off-white with a brown top. Because Lopez believed that Hartsock might be conducting business and desire some privacy she left the parking lot and drove around Marana for several minutes. She returned to the bank and noticed Hartsock standing by the bank door with another man whom she did not recognize. Lopez parked her car and walked toward the bank entrance where Hartsock was standing. As she passed the LaGrands' car Walter emerged from the car and asked her what time the bank opened. Lopez replied, "Ten o'clock." Lopez continued walking and went into the bank. When she entered the bank she saw Hartsock standing by the vault with Karl LaGrand. Karl was wearing

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[153 Ariz. 24] a coat and tie and carrying a briefcase. Karl told her to sit down and opened his jacket to reveal a gun, which was later found by the police to be a toy pistol. Walter then came through the bank entrance and stood by the vault. Lopez testified that Walter then said, "If you can't open it this time, let's just waste them and leave." Hartsock was unable to open the vault because he had only one-half of the vault combination.

The LaGrands then moved Lopez and Hartsock into Hartsock's office where they bound their victims' hands together with black electrical tape. Walter accused Hartsock of lying and put a letter opener to his throat, threatening to kill him if he was not telling the truth. Lopez and Hartsock then were gagged with bandannas.

Wilma Rogers, another bank employee, had arrived at the bank at approximately 8:10 a.m. Upon arriving Rogers noticed two strange vehicles in the parking lot and, fearing that something might be amiss, wrote down the license plate numbers of the two unknown vehicles. She then went to a nearby grocery store and telephoned the bank. Lopez answered the phone after her gag was removed; her hands remained tied. Karl held the receiver to Lopez' ear and listened to the conversation. Lopez answered the phone. Rogers asked for Hartsock but Lopez denied that he was there, which struck Rogers as odd because she had seen his truck in the bank parking lot. Rogers then told Lopez that her car headlights were still on, as indeed they were. Rogers told Lopez that if she did not go out to turn her headlights off, then she would call the sheriff. A few minutes later Rogers asked someone else to call the bank and they also were told that Hartsock was not there. Rogers then called the town marshal's office.

After the first telephone call the LaGrands decided to have Lopez turn off her headlights. Her hands were freed and she was told to go turn off the lights but was warned that "If you try to go--if you try to leave, we'll just shoot him and leave. We're just going to kill him and leave." Lopez went to her car and turned off the lights. Upon her return to the bank her hands were retied. Hartsock was still bound and gagged in the same chair. Lopez was seated in a chair, and turned toward a corner of the room. Lopez testified that soon thereafter she heard sounds of a struggle. Fearing that Hartsock was being hurt, Lopez stood up, broke the tape around her hands and turned to help him. Lopez testified that for a few seconds she saw Hartsock struggling with two men. Karl was behind Hartsock holding him by the shoulders while Walter was in front. According to Lopez, Walter then came toward her and began stabbing her. Lopez fell to the floor, where she could see only the scuffling of feet and Hartsock lying face down on the floor. She then heard someone twice say, "Just make sure he's dead."

The LaGrands left the bank and returned to Tucson. Lopez was able to call for help. When law enforcement and medical personnel arrived at the bank Hartsock was dead. He had been stabbed 24 times. Lopez, who had also been stabbed multiple times, was taken to University Hospital in Tucson.

Law enforcement personnel quickly identified the LaGrands as suspects. By 3:15 p.m., police had traced the license plate number to a white and brown vehicle owned by the father of Walter's girl friend, Karen Libby. The apartment where the LaGrands were staying with Karen Libby was placed under surveillance. Shortly thereafter Walter, Karl and Karen Libby left the apartment and began driving. They were followed and soon pulled over. Walter and Karl were then arrested and the car was searched. Karen Libby's apartment was also searched and a steak knife similar to one found at the bank was seized. Karl's fingerprint was found at the bank. A briefcase containing a toy gun, black electrical tape, a red bandanna, and other objects was found beneath a desert bush and turned over to the police.

After their arrest Walter and Karl were taken to DPS headquarters in Tucson. At DPS headquarters and later at St. Mary's Hospital, Karl confessed to the crimes to Detective Weaver Barkman but stated that

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[153 Ariz. 25] he alone stabbed Hartsock and Lopez while Walter was out of the room. Karl maintained that he panicked when Hartsock kicked him in the leg and grabbed a letter opener with which he stabbed the victims.

At trial Walter testified and denied any role in the stabbings. Walter admitted that he intended to rob the bank but testified that he was outside in the parking lot when the stabbings occurred. He testified that upon his return to the bank to get the car keys he found Karl shaking and crying and heard Karl say, "I killed him. I didn't mean to do it. I panicked. He kicked me." Walter also called psychologist Dr. Geoffrey Loftus as an expert witness to testify regarding effects of stress upon memory. Loftus testified that extreme stress, such as that induced by fear of injury or death, reduces the ability to accurately recall details. Walter used Loftus' testimony to attack Lopez' testimony that Walter was present during the stabbings and had stabbed her.

Karl did not take the stand and his confessions were not admitted into evidence. The trial court instructed the jury on first degree murder (both premeditated and felony murder), second degree murder, attempted first degree murder, attempted armed robbery, and kidnapping. After a two-week trial the jury convicted Walter and Karl of first degree murder (Count I), attempted first degree murder (Count II), attempted armed robbery (Count III), and two counts of kidnapping (Counts IV and V). Counts II-V were found to be dangerous and repetitive. Walter and Karl were sentenced identically: on Count I to death; on Count II to aggravated sentences of 28 years; on Count III to aggravated sentences of 20 years; and on Counts IV and V to 28 years each. Sentences were concurrent on Counts II-V but consecutive to Count I and any sentence then being served.

Walter raises six issues for consideration by this Court: (1) the refusal to admit Karl LaGrand's confessions into evidence, (2) the refusal to give a lesser included offense instruction regarding felony murder, (3) admission of gruesome photographs without adequate foundation, (4) excuse for cause of a juror with scruples against the death penalty, (5) denial of a change of venue, and (6) propriety of the death penalty in this case.

ADMISSIBILITY OF CONFESSIONS

While in custody Karl LaGrand twice confessed to stabbing the victims but claimed that Walter was not in the room at the time. Admission of confessions was eventually denied on hearsay grounds with no saving exception, but not before a series of legal maneuvers worthy of Lewis Carroll.

We begin, however, with an examination of the circumstances surrounding Karl's confessions. The LaGrands were arrested...

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