State Of Ariz. v. Hargrave

Decision Date14 June 2010
Docket NumberNo. CR-06-0061-AP.,CR-06-0061-AP.
Citation234 P.3d 569,225 Ariz. 1
PartiesSTATE of Arizona, Appellee,v.Christopher Allen HARGRAVE, Appellant.
CourtArizona Supreme Court





Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section, Jeffrey A. Zick, Assistant Attorney General, Phoenix, Attorneys for State of Arizona.

James J. Haas, Maricopa County Public Defender by Karen M. Noble, Deputy Public Defender, Louise Stark, Deputy Public Defender, Phoenix, Attorneys for Christopher Allen Hargrave.


BERCH, Chief Justice.

¶ 1 Christopher Allen Hargrave was convicted of three counts of first degree murder, one count of armed robbery, one count of burglary, and three counts of kidnapping. He was sentenced to death for each of the murders. In this automatic appeal, Hargrave raises fourteen claims of error and lists fifteen additional issues to avoid preclusion. This Court has jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution and Arizona Revised Statutes (“A.R.S.”) § 13-4031 (2010).


¶ 2 Late on the evening of May 19, 2002, Christopher Hargrave and Steve Boggs drove to a fast food restaurant from which Hargrave had recently been fired. Hargrave entered dressed in his work uniform and told the employees that he had been called into work.

¶ 3 Armed with a handgun, Boggs followed Hargrave into the restaurant and ordered the three employees to lie down on the floor and empty their pockets. Hargrave watched the employees while Boggs took money from two registers. Hargrave then assisted Boggs in directing the employees through the cooler into the freezer where Boggs lined them up and shot them as he shouted racial epithets. Hargrave also fired the murder weapon once inside the cooler. He later tried to withdraw money from an ATM using a bank card belonging to one of the victims.

¶ 4 A customer who arrived at the restaurant after the shootings saw victim B.A. on the ground by the back door and called the police. When police officers arrived, they found the body of victim F.J. on the floor near a telephone and the body of victim K.B. inside the freezer. All three victims died from their gunshot wounds. Between $200 and $500 was missing from the cash registers.

¶ 5 On May 21, 2002, Boggs pawned a .45 caliber handgun at a shop owned by Hargrave's girlfriend's parents, who reported the transaction to the police. Ballistics tests indicated that the gun had ejected the shell casings found at the restaurant, and an analyst concluded that Hargrave was a “major contributor” to the DNA recovered from the grip of the weapon.

¶ 6 On June 6, 2002, officers apprehended Hargrave while he was sleeping at a campsite. Nearby, officers found two handguns, a shotgun, two assault rifles, boxes of ammunition, and several documents evidencing Hargrave's involvement with the “Imperial Royal Guard,” a white supremacist organization. As officers arrested him, Hargrave stated that “things would have been different” if he had been awake when they arrived.

¶ 7 A jury found Hargrave guilty of three counts of first degree felony and premeditated murder and all other charges. The jury found three aggravating factors for each murder: (1) the murders were committed in the expectation of pecuniary gain, A.R.S. § 13-751(F)(5) (2010); 2 (2) the murders were committed in an especially cruel manner id. § 13-751(F)(6); and (3) multiple homicides were committed during the offense id. § 13-751(F)(8).

¶ 8 Hargrave did not present mitigation during the penalty phase and the jury determined that he should be sentenced to death for each murder. The court imposed a death sentence for each of the murders and concurrent terms of twenty-one years for the armed robbery, fifteen years for the burglary, and twenty-one years for each of the three kidnapping counts.


A. Guilt Phase Issues

1. Prior act evidence

¶ 9 Hargrave argues on appeal that the trial court erred in admitting three categories of evidence at trial: (1) evidence related to his membership in the Imperial Royal Guard (“IRG”), (2) evidence of his statement to officers during his arrest that “things would have been different” had he been awake, and (3) evidence regarding the guns and ammunition recovered from the campsite. He claims that the evidence was not relevant and its admission violated Arizona Rule of Evidence 404(b) because its limited probative value was substantially outweighed by the danger of prejudice. He also contends that the prosecutor used the evidence for an improper purpose.

¶ 10 Evidence of a defendant's prior or subsequent acts is not admissible “to show that the defendant is a bad person or has a propensity for committing crimes.” State v. McCall, 139 Ariz. 147, 152, 677 P.2d 920, 925 (1983) (prior acts); see also State v. Moreno, 153 Ariz. 67, 68, 734 P.2d 609, 610 (App.1986) (subsequent acts). Other act evidence may be admitted, however, for other purposes, such as proving “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Ariz. R. Evid. 404(b). The proponent must establish by clear and convincing evidence that the defendant committed the act, State v. Terrazas, 189 Ariz. 580, 582, 944 P.2d 1194, 1196 (1997), and the court must then (1) find that the act is offered for a proper purpose under Rule 404(b); (2) find that the prior act is relevant to prove that purpose; (3) find that any probative value is not substantially outweighed by unfair prejudice; and (4) give upon request an appropriate limiting instruction,” State v. Anthony, 218 Ariz. 439, 444 ¶ 33, 189 P.3d 366, 371 (2008).

a. IRG evidence

¶ 11 Hargrave and Boggs had formed the Imperial Royal Guard (“IRG”), a paramilitary organization that asserted the supremacy of the white race and espoused negative views of racial minorities. Boggs served as “Chief of Staff” and Hargrave as “Assistant Chief of Staff.” At Hargrave's campsite, police discovered Hargrave's IRG membership application, his oath of allegiance to the IRG, a binder containing a declaration describing the IRG's tenets, and a camouflage jacket bearing his IRG “Assistant Chief of Staff” name tag.

¶ 12 The State offered the IRG evidence to establish racial bias as a potential motive for the crimes. It presented evidence that all three victims were members of minority groups and that Boggs had shouted racial epithets during the shootings. Hargrave argues that the trial court erred in admitting the IRG evidence because it was not relevant to the crimes charged and no evidence established that the murders were motivated by racial bias.

¶ 13 Because Hargrave did not object to the IRG evidence at trial,3 we review its admission for fundamental error, which is “error going to the foundation of the case, error that takes from the defendant a right essential to his defense, [or] error of such magnitude that the defendant could not possibly have received a fair trial.” State v. Henderson, 210 Ariz. 561, 567 ¶ 19, 115 P.3d 601, 607 (2005) (quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984)). To prevail under this standard, Hargrave must first establish that an error occurred, then prove that the error was fundamental in nature and caused prejudice. Id. at 567 ¶¶ 20, 23, 115 P.3d at 607.

¶ 14 Hargrave has not established that any error occurred. Contrary to Hargrave's argument, motive is relevant in a murder prosecution. State v. Hunter, 136 Ariz. 45, 50, 664 P.2d 195, 200 (1983). He counters that the State presented evidence of other motives, such as robbery or retaliation for having been fired from his job. But the fact that the State may have evidence of other motives does not preclude the State from presenting the IRG motive evidence. See Ariz. R. Evid. 404(b); see also State v. Andriano, 215 Ariz. 497, 503 ¶ 26, 161 P.3d 540, 549 (2007) (finding evidence of defendant's extra-marital affair admissible under Rule 404(b) to prove motive, even though less prejudicial evidence of motive existed).

¶ 15 Citing Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992), Hargrave claims that his affiliation with the IRG was protected by the First Amendment. In Dawson, the prosecution attempted to introduce evidence of the defendant's Aryan Brotherhood and swastika tattoos during the penalty phase of his murder trial. 503 U.S. at 161, 112 S.Ct. 1093. The Court held that the First and Fourteenth Amendments prohibited the introduction of this evidence because it was not relevant to the capital sentencing proceedings. Id. at 160, 112 S.Ct. 1093.

¶ 16 Here, in contrast, evidence of Hargrave's affiliation with the IRG was relevant to establish a motive for the crimes and its probative value was not substantially outweighed by the prejudice it might have caused. Hargrave has not satisfied his initial burden of establishing that the trial court committed any error in admitting this evidence.4

b. Statements to police officers

¶ 17 Hargrave argues that the trial court erred in admitting his post-arrest comments that “things would have been different” if he had been awake when the officers arrived and that “the police were lucky that he was asleep” when they took him into custody. He contends that the statements served no proper purpose, were not connected to the murders, and allowed jurors to speculate that he was a violent person. The prosecutor offered the statements to show a consciousness of guilt.

¶ 18 Because Hargrave did not object to these statements at trial, we review for fundamental error. Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d at 607.

¶ 19 There was no fundamental error. Hargrave's statements did not go to the foundation of his case, cause him prejudice, or otherwise deprive him of a fair trial or any right essential to his defense. See id. at 568 ¶ 24, ...

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