State v. Anderson

Decision Date15 June 2000
Docket NumberNo. CR-98-0294-AP.,CR-98-0294-AP.
Citation4 P.3d 369,197 Ariz. 314
PartiesSTATE of Arizona, Appellee. v. Frank Winfield ANDERSON, Appellant.
CourtArizona Supreme Court

Janet A. Napolitano, Arizona Attorney General By: Paul J. McMurdie, Jim D. Nielsen, Phoenix, for State of Arizona.

Wisdom & Logan By: James L.P. Logan, Phoenix, for Frank Winfield Anderson.


FELDMAN, Justice.

¶ 1 Frank Winfield Anderson (Defendant) was convicted of armed robbery, conspiracy to commit murder, and three counts of first-degree murder. He was sentenced to death for each of the murders, life with possibility of parole in twenty-five years for conspiracy, and twelve and one-half years to be served consecutively for armed robbery. This is an automatic direct appeal under A.R.S. § 13-4031 and Ariz.R.Crim.P. 26.15 and 31.2(b). We have jurisdiction pursuant to Ariz. Const. art. VI, § 5(3) and A.R.S. §§ 13-4031 and 13-4033. For the reasons stated below, Defendant's conviction is reversed. We therefore limit our discussion to the dispositive issues and those that may arise at retrial.


¶ 2 The facts necessary for resolution of this case come primarily from statements Defendant made to police after his arrest. Defendant and his traveling companion, Kimberly Lane, were hitchhiking from California to Kingman, Arizona. They were picked up in Las Vegas by an unidentified driver and taken to Golden Valley, Arizona. The driver suggested that because the hour was late, Defendant and Lane should consider staying with the Kagens, who lived nearby, rather than proceed into Kingman that night. Defendant and Lane agreed, and after the driver left them at the Kagen home, they were taken in by the Kagens. Residing at the home were Leta and Elliot Kagen, Leta's son Robert Delahunt, and two others—Roland Wear and Robert "Bobby" Poyson. At the time Defendant arrived, Elliot Kagen was attending a sick friend in Kingman and was not expected to return for several days.

¶ 3 Upon arrival, Defendant and Lane played cards with the other residents for several hours before retiring. The following day everyone went to Kingman, where Defendant and Lane looked for work while the others registered Delahunt for school. When they returned, Defendant and Lane discussed their dislike for the Kagen home and their desire to continue hitchhiking. Their dilemma was that they were seventeen miles from Kingman and had no means of transportation. Poyson overheard this discussion and told them that he could help them leave. Poyson suggested that they wait until Elliot returned, then rob and kill him, Leta, Delahunt, and Wear, and steal Wear's pick-up truck. Defendant, Poyson, and Lane decided not to wait for Elliot but to proceed with the plan to kill Delahunt, Leta, and Wear. The plan was consummated, the three victims killed, and after stealing several items from the Kagens' house, Defendant, Poyson, and Lane left in Wear's truck. Defendant was arrested five days later in Southern Illinois, still driving the truck and carrying some of Leta's belongings. Poyson and Lane were arrested several days later. While in custody, Defendant made a full confession to the murders, admitting they were premeditated.

A. Exclusion of jurors who objected to the death penalty on moral or religious grounds

¶ 4 The trial judge exercised his discretion to use a written jury questionnaire, as is permitted by Ariz.R.Crim.P. 18.5. The venire persons whose names had been drawn were asked to report to the courthouse, where they were sworn in, introduced to counsel and Defendant, given the stock cautionary instruction, given the questionnaire, and instructed on how to fill it out. The preface to the questionnaire said the answers would "have the effect of a statement given to the court under oath." Once they delivered the completed document to the clerk, the venire persons were free to leave but were instructed to return the next day unless called and excused.1

¶ 5 The lawyers and the judge met in the afternoon to review the completed questionnaires. Persons not discharged as a result of the afternoon discussions would return the following morning for oral voir dire. During the discussion in chambers, the judge and counsel discovered that in answering questions 9(A) and 9(B) of the questionnaire, three prospective jurors stated that they were opposed to the death penalty on moral or religious grounds and could not set aside these beliefs. All three were removed from the jury pool for cause over defense counsel's objection and request that he be allowed oral voir dire that might rehabilitate them. Defendant contends the trial judge erred and his constitutional right to an impartial jury was violated when he was convicted by a jury from which all who held religious and conscientious objections to the death penalty were excluded. U.S. Const. amend. VI; Ariz. Const. art. II, § 23.

¶ 6 The United States Supreme Court has held that the Sixth Amendment is violated if the trial jury in a capital case is chosen by excluding for cause persons who have general objections to the death penalty. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). A general objection to the death penalty is not sufficient to create a presumption that a prospective juror is unfit because of bias to sit on the panel. The Court's language was quite clear:

It is, of course, settled that a State may not entrust the determination of whether a man is innocent or guilty to a tribunal `organized to convict.' It requires but a short step from that principle to hold, as we do today, that a State may not entrust the determination of whether a man should live or die to a tribunal organized to return a verdict of death. Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected.

Id. at 521-23, 88 S.Ct. at 1776-77 (citations and footnotes omitted).

¶ 7 However, this rule is not applicable to prospective jurors who state unequivocally that they could never impose the death penalty regardless of the facts of the particular case. Id. at 514, 88 S.Ct. at 1772; see also Morgan v. Illinois, 504 U.S. 719, 734 n. 7, 112 S.Ct. 2222, 2232 n. 7, 119 L.Ed.2d 492 (1992) ("The process of voir dire is designed to cull from the venire persons who demonstrate that they cannot be fair to either side of the case. Clearly, the extremes must be eliminated—i.e., those who, in spite of the evidence, would automatically vote to convict or impose the death penalty or automatically vote to acquit or impose a life sentence.").

¶ 8 In the present case, question 9(B) of the written questionnaire asked: "Could you set aside any conscientious or religious feelings you might have against the death penalty and impartially weigh the evidence in this case and render a verdict in accordance with the law?" All three prospective jurors marked the box indicating they could not. If this was their final and unequivocal position, excusing them did not violate the rule of Witherspoon and Morgan by depriving Defendant of an impartial jury.

¶ 9 In determining whether a prospective juror's attitude toward the death penalty is so fixed as to require exclusion from the jury, we apply the Witherspoon standard as modified by Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). In Wainwright, the Court held that a person's opposition to the death penalty need not be proved with "unmistakable clarity," but a prospective juror may be excused if his views "would prevent or substantially impair the performance of his duties as a juror...." Id. at 424, 105 S.Ct. at 852 (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2528, 65 L.Ed.2d 581 (1980)). Arizona adopted an identical standard in State v. Martinez-Villareal, 145 Ariz. 441, 449, 702 P.2d 670, 678 (1985). In Arizona, "[d]isqualification when a juror states his inability to be impartial is not only permissible but imperative." State v. Wiley, 144 Ariz. 525, 534, 698 P.2d 1244, 1253 (1985) (overruled on other grounds by State v. Superior Court, 157 Ariz. 541, 760 P.2d 541 (1988)); see also State v. Willoughby, 181 Ariz. 530, 892 P.2d 1319 (1995) (excusing venire person who could not convict due to religious opposition to the death penalty does not violate state constitutional provision against disqualification based on religious beliefs).

¶ 10 In the present case, the trial judge's denial of questioning beyond the prospective jurors' written answers forces us to determine from the questionnaire answers alone whether their attitudes toward the death penalty were so entrenched as to disqualify them from service. On this record, we must conclude that it is possible that the three could have been rehabilitated by oral voir dire that established their ability to set aside their beliefs and follow the law. Ms. P, for example, not only marked questions 9(A) and 9(B) to indicate she had scruples about the death penalty and could not set them aside, but also marked question 19 to indicate that if she were selected, she would follow the judge's instructions, disregarding her own notions about what the law might be. Given that answer, we cannot say her position on question 9 was final and unequivocal. Ms. N answered question 19 in like manner. Ms. W was even more equivocal, saying in answer to question 9(B) that she was only unsure about whether she could set aside her beliefs. She did not say she could not do so, and her answer to question 19 indicated she also would follow the judge's instructions. Witherspoon does not allow the trial judge to dismiss prospective jurors for cause merely for expressing objections, which may turn out to be equivocal, to...

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