928 P.2d 610 (Ariz. 1996), CR-94-0046, State v. Soto-Fong

Docket Nº:CR-94-0046-AP.
Citation:928 P.2d 610, 187 Ariz. 186
Opinion Judge:[11] The opinion of the court was delivered by: Moeller
Party Name:STATE of Arizona, Appellee, v. Martin Raul SOTO-FONG, Appellant.
Attorney:[8] Grant Woods, Attorney General, Phoenix, By Paul J. McMurdie, Chief Counsel, Criminal Division, Susanna C. Pineda, Assistant Attorney General, Attorneys for Appellee. [9] Waterfall, Economidis, Caldwell, Hanshaw & Villamana, P.C., Tucson, By James W. Stuehringer, Attorneys for Appellant.
Case Date:November 19, 1996
Court:Supreme Court of Arizona

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928 P.2d 610 (Ariz. 1996)

187 Ariz. 186

STATE of Arizona, Appellee,


Martin Raul SOTO-FONG, Appellant.

No. CR-94-0046-AP.

Supreme Court of Arizona.

November 19, 1996

In Banc.

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[187 Ariz. 190] Grant Woods, Attorney General by Paul J. McMurdie, Chief Counsel, Criminal Division, Susanna C. Pineda, Assistant Attorney General, Phoenix, for Appellee.

Waterfall, Economidis, Caldwell, Hanshaw & Villamana, P.C. by James W. Stuehringer, Tucson, for Appellant.


MOELLER, Justice.


At 10:15 p.m. on June 24, 1992, police were called to the El Grande Market in Tucson, where they found the bodies of Fred Gee (the manager of the market), Ray Arriola (an employee of the market), and Zewan Huang (Gee's elderly uncle). Each had been shot with .38 and .25 caliber handguns.

Shortly thereafter, police found an abandoned car three blocks from the market. Christopher McCrimmon's fingerprint was found on the driver's side window. 1 Earlier that night, Queen E. Ray had loaned McCrimmon the car in return for money. Her testimony established that McCrimmon, Andre Minnitt, and a third person, whom she knew as Martinez, left McCrimmon's apartment with the car around 10:00 p.m. Ray

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[187 Ariz. 191] testified that Martinez was the defendant, Martin Raul Soto-Fong. Ray also testified that about an hour after she loaned them the car, the three returned to McCrimmon's apartment without the car, and McCrimmon gave Ray $30 and the car keys.

The market was in the process of closing at the time of the murders. See infra note 8. Two registers had been cleared, leaving only one open. The body of the manager, Fred Gee, was found at the open register at the liquor counter. The register had a sale rung up on it, and nearby on the counter were bags containing a cucumber and three lemons. Defendant's fingerprints were found on the bags. On the floor near Gee's body were two $1 food stamps, not yet stamped with the market's name. Defendant's fingerprint was found on one of these food stamps. At least $175.52 was missing from the store.

Soon after his release from prison in late August, some two months after the murders, Tucson police arrested Keith Woods on a drug charge. In exchange for his release and the dismissal of that charge, Woods agreed to act as an informant. On September 8, Woods told Detective Joe Godoy that McCrimmon and Minnitt had told him they committed the murders with a third person, Cha-Chi, who had worked at the market. Woods later identified Cha-Chi as Fong.

Fong, age seventeen at the time of the crimes, was charged in juvenile court with three counts of first degree murder, one count of armed robbery, two counts of attempted armed robbery, one count of aggravated robbery, two counts of attempted aggravated robbery, and one count of burglary. The juvenile court transferred Fong to adult court. His trial took place before the trial of McCrimmon and Minnitt. Defendant's theory at trial was one of mistaken identity; he claimed Cha-Chi was not Fong, but Martin Garza, another acquaintance of McCrimmon's. Defendant also maintained that detectives improperly handled fingerprint evidence, making the evidence inherently unreliable.

Fong was convicted on all counts except the burglary count. He was sentenced to death on each of the three murder counts and to terms of years on all the other counts. We have jurisdiction over this direct, automatic appeal pursuant to Ariz. Const. art. VI, § 5(3), Ariz. R.Crim. P. 31.2 and A.R.S. § 13-4031.


Trial Issues

I. Whether the trial court erred in refusing to exclude portions of the testimony of defendant's witness Woods.

II. Whether the trial court abused its discretion by denying defendant a new trial based on newly discovered evidence (McCrimmon's testimony at his subsequent trial).

III. Whether the trial court erred in precluding impeachment of latent print expert O'Sullivan.

IV. Whether the trial court erred in refusing defendant's Hash v. State jury instruction.

V. Whether the trial court erred in precluding Tolander's testimony of an earlier threat against one of the victims.

VI. Whether the trial court erred in denying defendant's Rule 20 motion for acquittal.

Death Penalty Eligibility Issues

I. Whether the evidence supports the findings that the murders were committed in an especially heinous, cruel or depraved manner under A.R.S. § 13-703(F)(6).

II. Whether receipt of testimony concerning Minnitt's and McCrimmon's statements precludes the death penalty.

III. Whether defendant's death sentence can withstand review of the credibility of defense witness Woods and the veracity of McCrimmon and Minnitt.

IV. Whether the evidence supports the finding of pecuniary motive under A.R.S. § 13-703(F)(5).

V. Whether the aggravating factor A.R.S. § 13-703(F)(8) (multiple homicides) is unconstitutional on double jeopardy grounds.

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[187 Ariz. 192] VI. Whether defendant's age at the time of the murders (seventeen) is a constitutional bar to a death sentence.

VII. Whether the death penalty must be set aside because of victim impact evidence.

Independent Review of Statutory and Non-Statutory Mitigation

I. Age

II. Residual Doubt

III. Family Ties

IV. Felony Murder Instruction

V. Lack of Criminal Record

VI. Employment History

VII. Behavior at Trial

VIII. Availability of "True Life" Sentence


Trial Issues

  1. Did the trial court err in refusing to exclude portions of the testimony of defendant's witness Keith Woods?

    Defendant makes two separate contentions concerning Woods' testimony. An understanding of the events leading to the testimony is essential to the resolution of each contention.

    A. Background

    Keith Woods, called as a witness by the defendant, testified that during August 1992, on the day he was released from prison, McCrimmon and Minnitt discussed the El Grande Market homicides with him. About one week after this discussion, Woods was arrested for possession of cocaine. The police offered to drop the charges against him (which carried a potential sentence of twenty-five years) if Woods would provide information about other cases. When Woods failed to provide additional information, police again arrested him. On September 8, Woods told Detective Godoy that McCrimmon and Minnitt had said they robbed the market with a third person named Cha-Chi. In the September 8 taped interview, Woods referred to Cha-Chi as "the Mexican dude" who "set it up" and who had worked at the El Grande Market.

    Following the September 8 interview, Woods attempted to hide from the police to avoid testifying against his friends McCrimmon and Minnitt. He was apprehended by police and gave another taped statement to Detective Godoy on November 20. In his second statement (November 20), which also concerned his August conversation with McCrimmon and Minnitt, Woods said that McCrimmon and Minnitt had used the name Martin to refer to Cha-Chi and that Cha-Chi was "Betty Christopher's boyfriend." 2

    Prior to trial, defendant filed a motion in limine arguing that he should be allowed to introduce Woods' September 8 statement that McCrimmon and Minnitt said the third murderer was Cha-Chi, the "Mexican dude" who was a former employee of the market. Defendant claimed "Woods' September 8 statement to detectives [was] admissible as it represent[ed] the declarations against interest of McCrimmon and Minnitt and exculpate[d] defendant by its reference to Cha-Chi." However, in the same motion in limine, defendant claimed that Woods' later November 20 statement regarding the August conversation with McCrimmon and Minnitt should be excluded. Defendant contended Woods' November 20 statement that McCrimmon and Minnitt had also told him, during the same conversation in August, that Cha-Chi was "Martin, Betty Christopher's boyfriend," was inadmissible because it was inculpatory as to defendant and its admission would violate defendant's "rights of confrontation under the Sixth and Fourteenth Amendments."

    The trial court delayed ruling on the pretrial motion in limine. At trial, after hearing additional argument on the motion, the judge denied it. The trial court ruled

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    [187 Ariz. 193] that if defendant elected to elicit testimony from Woods regarding his conversation with McCrimmon and Minnitt, the state would not be precluded from bringing out Woods' other statements regarding that same conversation. Following this ruling, defendant elected to introduce Woods' testimony regarding all of the statements, including the statements defendant had attempted to exclude by way of his motion in limine. 3 Defendant now claims that the trial court erred by not excluding those portions of McCrimmon's and Minnitt's statements sought to be suppressed in his motion in limine.

    B. Defendant's Williamson Argument

    Because the evidence demonstrated that Fong was not known as Cha-Chi, see supra note 2, defendant has consistently argued that Woods' September 8 statement to Godoy (that Cha-Chi was the third murderer) is admissible hearsay because it exculpates defendant. Defendant maintains that Woods' later statements to Godoy that clarified Cha-Chi and Fong were the same person were not exculpatory as to Fong, were not self-inculpatory as to McCrimmon and Minnitt, and were thus inadmissible under Williamson v. United States, 512 U.S. 594, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994). Defendant's argument misinterprets Williamson.

    In Williamson, the Supreme Court held that "[t]he question under Rule 804(b)(3) is always whether the statement was sufficiently against the declarant's penal interest 'that a reasonable person in the declarant's position would not have made the statement unless believing it to be true'...." 512 U.S. at 606, 114 S.Ct. at 2438 (footnote omitted)...

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