State v. Laird

Decision Date09 July 1996
Docket NumberNo. CR-94-0137-AP,CR-94-0137-AP
Citation186 Ariz. 203,920 P.2d 769
PartiesSTATE of Arizona, Appellee, v. Kenneth Jeremy LAIRD, Appellant.
CourtArizona Supreme Court
OPINION

MARTONE, Justice.

A jury convicted Kenneth Laird of first degree murder, one count of dangerous kidnapping, one count of dangerous burglary, one count of theft, four counts of forgery, and one count of robbery. The trial court sentenced him to death for the murder and to prison terms for the noncapital convictions. Appeal to this court is automatic. See Rules 26.15 and 31.2(b), Ariz.R.Crim.P.; A.R.S. § 13-4031.

FACTS

Approximately two weeks before the murder of Wanda Starnes, Laird told some friends that he would be getting a blue Toyota 4x4 truck. He also told a friend's mother that he was going to get a truck, "if he had to kill for it." Tr. Dec. 16, 1993 at 40.

Around noon on September 2, 1992, Laird ran away from his mother's home in north Phoenix, and rode his bicycle to the victim's home in Tatum Ranch. Laird was familiar with the home because he and his stepfather had graded the yard just the month before.

Around 2:30 p.m., Anthony Sabatino, a neighbor, saw Laird standing at the victim's door. Sabatino asked if he could be of assistance. Laird said that he was working construction in the subdivision and that his car had broken down. Sabatino offered the use of his phone to check on a ride. After apparently dialing a number and getting no answer, Laird left. Sabatino saw Laird later that day, sitting on a pile of rocks in the subdivision. Around 5:30 p.m., another of the victim's neighbors, Deborah Gregor, saw Laird near the victim's home. She noticed him peering over a side fence into the victim's yard.

At 7:00 p.m., the victim began her 12-hour shift as a cardiac nurse. While she was gone, Laird broke into her home and called several friends between 7:36 p.m. and 9:00 p.m. He told one of them that he was moving to a home in Tatum Ranch. At 6:00 a.m. the next day, he called another friend and told her that he could not drive her to school that morning.

A subcontractor working in the subdivision saw the victim's truck pull into the garage at about 9:00 a.m. The witness believed she was returning home from work. This was the last time she was seen alive.

Laird attacked her as soon as she came in. The struggle was vicious. Laird's face and hands were cut and scraped. The victim's hands had defensive wounds on them. Laird ultimately hog-tied her, and put her in a bathroom with a reverse lock so that the door could be locked from the outside. He put clothes at the base of the bathroom door to muffle sound.

Laird strangled the victim sometime between her return from work and 5:45 a.m. the next morning, September 4, 1992. He dumped her body in the desert and covered it with vegetation. The police arrested him the next day while he was driving her truck. He took the police to her body.

ISSUES PRESENTED

Laird raises the following issues:

A. Trial Issues

1. Did the trial court err in failing to sever count 9 from the murder trial?
2. Did the trial court err in failing to grant a mistrial?

B. Sentencing Issues

1. Was the murder committed in an especially heinous, cruel, or depraved manner (A.R.S. § 13-703(F)(6))?
2. Is the mitigation sufficiently substantial to warrant leniency in light of the existing aggravation?
3. Is Arizona's death penalty statute constitutional?
TRIAL ISSUES
A. Failure to Sever

Laird moved to sever count 9, a robbery charge, before trial. He argues that the court's denial of his motion prejudiced him and deprived him of due process of law and his right to an impartial trial under the United States and Arizona constitutions.

On September 5, 1992, two days after the victim disappeared, Laird was driving her truck in north Phoenix. He got into a quarrel with youths in another vehicle and chased them at high speed. They ultimately pulled over to apologize. As the driver got out of his truck, Laird punched him, kicked him several times in the ribs, and stole his hat. Some neighbors called the police. Laird drove off, and about 1 1/2 hours later returned to the scene of the fight. As Laird approached, a neighbor pointed at his Toyota. The police stopped Laird and, after discovering that the truck was the subject of a crime bulletin, arrested him.

Rule 13.4(c), Ariz.R.Crim.P., requires a defendant to renew a motion to sever at trial. Failure to do so results in waiver of the severance issue. Id.; see also State v. Gonzales, 181 Ariz. 502, 508, 892 P.2d 838, 844 (1995), cert. denied, --- U.S. ----, 116 S.Ct. 720, 133 L.Ed.2d 673 (1996). Laird failed to renew his severance motion during trial and has therefore waived this issue. We review for fundamental error only.

The state conceded at oral argument that the trial court erred in not severing count 9. And we agree that Rule 13.3(a), Ariz.R.Crim.P., offers no basis for joinder. But the evidence in this case is so strong, and Laird's defense is so incredible, that we can say with certainty that he was not denied a fair trial by improper joinder. See State v. Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628 (1991).

Here is Laird's story. He denied killing the victim but admitted taking her truck. He claimed that on Thursday, September 3, 1992, he came upon the truck while he was riding a bike through the desert towards Cave Creek. He "smelled something," Tr. Dec. 16, 1994 at 112, and then saw the victim's dead body in a wash behind the truck. He got scared and rode his bike to a hill above the victim and her truck. After waiting two hours, he decided to take her truck. He rummaged through it and found her address. He said he was familiar with the address because he and his stepfather had graded her yard. He drove to the victim's home and decided to keep her truck and move in because "she didn't need it anymore." Id. at 124.

This story is too implausible to merit belief. It is also flatly contradicted by the evidence. Three witnesses placed Laird around the victim's home on the day before he supposedly found her in the desert. Phone records prove that calls were made from the victim's home to several of Laird's friends that night. These friends testified that Laird placed the calls. Another friend testified that he saw Laird throw bloody women's underwear, a bloody sleeping bag, some boards, and a few shirts into two trash dumpsters. The police later recovered some of these items and traced them back to the victim. The police found blood matching the victim's on a blind in Laird's home. After two of his friends asked why blood was running out of the tailgate of the truck, Laird told them that he had "killed a bitch." Tr. Dec. 16, 1993 at 25. Under these circumstances, we can say with confidence that the trial of the robbery count with the rest of the case was not fundamental error.

B. Failure to Grant Mistrial
1. Testimony Regarding Laird's Probationary Status

Laird argues that the trial court erred by not declaring a mistrial when two witnesses referred to his probationary status and an earlier detention.

The testimony at issue is as follows:

a. Direct of Karen Jennings--Laird's Adoptive Mother

Q [Prosecutor]: So with that information did you take some further action with regard to his absence?

A [Karen Jennings]: I believe I called his Probation Officer--

[Defense Counsel]: Objection, judge. May we approach?

[Court]: Sustained.

[Defense Counsel]: I'd ask it be stricken, Judge?

[Court]: It's ordered. Motion is granted. It's ordered striking her last answer, and the Jury is admonished to disregard it. That answer is to play no part in your deliberations.

Tr. December 15, 1993 at 10.

b. Direct of Paul Jennings--Laird's Stepfather

Q [Prosecutor]: And would your son have been working with you let's say in August of 1992?

A [Paul Jennings]: That I can't be sure of.

Q: July of '92?

A: He was being detained in Mesa--

[Defense Counsel]: Objection, Judge.

[Court]: Sustained.

[Defense Counsel]: I ask that it be stricken.

[Court]: His answer is stricken. The jury is admonished to disregard that answer.

Id. at 16.

In deciding whether a mistrial is warranted, we consider (1) whether the jury has heard what it should not hear, and (2) the probability that what it heard influenced them. State v. Hallman, 137 Ariz. 31, 37, 668 P.2d 874, 880 (1983). The state concedes that some of the unresponsive answers were improper. Laird never took the stand. Laird argues that the prejudicial impact of these answers was too great to be overcome by the court's admonition. We disagree.

These unsolicited responses came on the third day of a nine day trial in which fifty-one witnesses testified. They were a brief and tiny part of extensive trial testimony. The trial court acted promptly. In light of the significant amount of evidence implicating Laird, including his own admissions, we do not believe these responses could have added anything to the jury's consideration of the case. Striking the answers from the record and instructing the jury to disregard them were adequate.

2. Testimony Regarding Transfer from Juvenile Court

A police officer explained the juvenile Miranda rights form he read to Laird, including this language: "a juvenile judge may decide that you do not belong in juvenile court." Tr. Dec. 16, 1993 at 107-08. The trial court sustained Laird's objection, admonished the jury to disregard the testimony, and redacted the objectionable language. Laird failed to move for a mistrial but argues that the court should have declared one sua sponte. We disagree. Sua sponte mistrials can raise double jeopardy issues. See, e.g., McLaughlin v. Fahringer, 150...

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