778 P.2d 602 (Ariz. 1988), CR-86-0053, State v. Fulminante

Docket Nº:CR-86-0053-AP.
Citation:778 P.2d 602, 161 Ariz. 237
Opinion Judge:[10] Cameron
Party Name:STATE of Arizona, Appellee, v. Oreste C. FULMINANTE, Appellant.
Attorney:[7] Robert K. Corbin, Atty. Gen. by William J. Schafer III, Barbara A. Jarrett, Asst. Attys. Gen., Phoenix, for appellee. [8] Dean W. Trebesch, Maricopa County Public Defender by James H. Kemper and Stephen R. Collins, Maricopa County Deputy Public Defenders, Phoenix, for appellant.
Case Date:June 16, 1988
Court:Supreme Court of Arizona

Page 602

778 P.2d 602 (Ariz. 1988)

161 Ariz. 237

STATE of Arizona, Appellee,


Oreste C. FULMINANTE, Appellant.

No. CR-86-0053-AP.

Supreme Court of Arizona.

June 16, 1988

Page 603

[Copyrighted Material Omitted]

Page 604

In Banc.

Reconsideration Granted April 11, 1989. Supplemental Opinion July 11, 1989. Reconsideration Denied Sept. 19, 1989.

[161 Ariz. 239] Robert K. Corbin, Atty. Gen. by William J. Schafer III, Barbara A. Jarrett, Asst. Attys. Gen., Phoenix, for appellee.

Dean W. Trebesch, Maricopa County Public Defender by James H. Kemper and Stephen R. Collins, Maricopa County Deputy Public Defenders, Phoenix, for appellant.

CAMERON, Justice.


    Defendant, Oreste C. Fulminante, appeals a verdict and judgment of guilt for the crime of first degree murder (A.R.S. § 13-1105(A)(1)) and a sentence of death (A.R.S. § 13-703). We have jurisdiction pursuant to Ariz. Const. Art. 6 § 5(3) and A.R.S. §§ 13-4031, 4033, and 4035.


    Defendant raises the following issues on appeal:

    A. Trial Issues:

    1. Did the trial court err in determining that a paid informant for the Federal Bureau of Investigation did not violate defendant's fifth amendment rights?

    Page 605

    [161 Ariz. 240] 2. Did the trial court err in holding that defendant's confession to Anthony Sarivola was voluntarily made?

    3. Did admission of defendant's statement to Anthony Sarivola violate defendant's sixth amendment right to counsel?

    4. Did the trial court err in admitting defendant's statements to Donna Misch (Sarivola) because the statements were the "fruit of the poisonous tree"?

    5. Did the trial court err in admitting a photograph of the victim into evidence?

    6. Did the trial court err in admitting evidence regarding defendant's bad character and his prior bad acts?

    7. Did the trial court err in precluding defendant from presenting evidence that a third party committed the murder?

    8. Did the trial court err in allowing the prosecutor to present evidence regarding the informant's truthful character?

    9. Did the trial court err in allowing the prosecutor to elicit testimony from a police officer regarding his reasons for suspecting defendant was the murderer?

    B. Death Penalty Issues:

    1. Are the terms "cruel, heinous, or depraved" void for vagueness?

    2. Did the trial court abuse its discretion in sentencing defendant to death?

    3. Does the defendant have a constitutional right to a voir dire examination of the trial judge in a death penalty case?

    4. Is Arizona's death penalty statute unconstitutional because it requires imposition of the death penalty when one aggravating circumstance exists and there are no mitigating factors?

    5. Is Arizona's death penalty statute unconstitutional because it allegedly lacks standards for evaluating aggravating and mitigating circumstances?

    6. Is Arizona's death penalty statute unconstitutional because it shifts the burden of proof regarding mitigating ciucumstances to the defendant?

    7. Is Arizona's death penalty statute unconstitutional because it violates defendant's sixth amendment right to a jury trial on the issue of the sentence of death?

    8. Must this court, in its independent review of the evidence, find that the death sentence is inappropriate punishment in this case?

    C. Post-Trial Issues:

    1. Was defendant denied his constitutional right to the effective assistance of counsel by his trial attorney?

  3. FACTS

    Defendant called the Mesa Police Department on the morning of 14 September 1982, to report the disappearance of his eleven-year-old stepdaughter, Jeneane Michelle Hunt. Shortly thereafter he drove to a hospital to pick up his wife Mary, (Jeneane's mother) who had just been released following surgery. He told Mary that the victim had not returned home the previous evening.

    On 16 September 1982, the body of a young girl, later identified as Jeneane, was discovered in the desert in east Mesa. The victim had been shot twice in the head with a large caliber weapon at close range and a ligature was found around her neck. Testimony of the pathologist indicated that the ligature found around the victim's neck did not contribute to her death, although it could have been used to effect non-fatal choking prior to death. Additionally, tests for spermatazoa and seminal fluids were negative. However, this was not unexpected given the decomposing condition of the body.

    Because of a number of inconsistencies in defendant's statements concerning the victim's disappearance, particularly his claims that the victim was instructed in the use of firearms and that he had a good relationship with the victim, the defendant

    Page 606

    [161 Ariz. 241] became a suspect in the killing. Defendant's wife stated that the relationship between the defendant and victim was poor and that the defendant had never instructed the victim in use of firearms. However, no charges were filed at that time and defendant left the state of Arizona for New Jersey.

    During the investigation, police learned that on 13 September 1982 defendant had gone to a Mesa gun shop to trade a rifle for an extra barrel for his .357 revolver. Additionally, police learned defendant had a prior criminal record including a 1965 New Jersey felony conviction for impairing the morals of a child, and a 1971 New Jersey conviction for uttering a check with a forged endorsement. The police informed federal authorities of the Alcohol, Tobacco, and Firearms Bureau of facts gathered during the investigation, and on 28 October 1982, defendant was arrested in Newark, New Jersey for violating 18 U.S.C.App. § 1202(a), possession of a firearm by a felon. The defendant was transported to Phoenix, convicted in the U.S. District Court for the offense, and sentenced to a minimum of two years in the Federal Prison in Springfield, Missouri. On release from Springfield, he was again arrested on another charge of possessing a firearm. He was convicted and received another two year sentence.

    This time defendant was sent to the Ray Brook Federal Correctional Institution in New York. While in Ray Brook, defendant became friends with another inmate, Anthony Sarivola, who was serving a 60-day sentence for extortion. Sarivola, who was once involved with organized crime, had by this time become a paid informant for the Federal Bureau of Investigation. In Ray Brook, Sarivola masqueraded as an organized crime figure.

    After Sarivola and defendant became friends, Sarivola heard a rumor that defendant was suspected of killing a child in Arizona. Sarivola asked defendant about the rumor, but defendant denied that it was true. Sarivola told his contact in the Federal Bureau of Investigation, Agent Walter Ticano, about the rumor. Agent Ticano told Sarivola to find out more about the rumor.

    At this time, according to Sarivola, defendant had been receiving "rough" treatment from the other inmates concerning the rumor, so Sarivola told defendant that if he would tell him the truth, Sarivola would give him help. On 20 October 1983 defendant admitted to Sarivola that he had taken his stepdaughter out to the desert on his motorcycle, and then shot her twice in the head with his .357 revolver. Defendant further told Sarivola that he choked, sexually assaulted, and made the victim beg for her life before shooting her. He also stated that he hid the murder weapon in a pile of rocks at the murder scene.

    Sarivola was released from Ray Brook on 28 November 1983. Defendant was released in May of 1984. Sarivola and his fiancee, Donna, picked up defendant at a local bus terminal. Donna asked defendant if he had any relatives or friends he wished to see. Defendant indicated he could not return to his home because he had killed a little girl in Arizona. They drove defendant to a friend's house in Pennsylvania. In June 1984, defendant was arrested in New York for another weapons violation.

    On 4 September 1984 defendant was indicted for first degree murder, pursuant to A.R.S. § 13-1105. Prior to trial, defendant moved to suppress evidence of the statements made to Sarivola and Donna. The trial court denied his motions.

    On 19 December 1985, defendant was found guilty by a jury of first degree murder of his stepdaughter. The trial court found in its special verdict that the murder was committed in an especially cruel, heinous and depraved manner. The trial court found there were no mitigating circumstances sufficient to overcome the aggravating circumstances and sentenced defendant to death. This appeal follows.

    A. Trial Issues


      Defendant initially contends that he was subjected to custodial interrogation by Sarivola in violation of the fifth amendment to the United States Constitution. As a result,,

      Page 607

      [161 Ariz. 242] he claims the statements made to Sarivola were inadmissible because they were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      In response to defendant's motion to suppress these statements, the trial court ruled:

      The Court finds that the alleged statements contained in the State's Response (which was adopted by the Defendant for purposes of this hearing only) do not fall within the Miranda parameters. The Court does not find that at the time the statements were made that the Defendant was in custody or deprived of his freedom in a significant way. Although the Defendant was in a Federal Correctional Institution, there was no "custodial interrogation". In determining whether there was a custodial interrogation, the Court has considered 1) the site of the interrogation, 2) whether the investigation had focused on the suspect, 3) whether the objective indicia of arrest were present and 4) the length and form of the...

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