State v. Anderson, No. CR-02-0402-AP.

• Court: Supreme Court of Arizona
• Writing for the Court: HURWITZ, Justice.
• Citation: 210 Ariz. 327,111 P.3d 369
• Docket Number: No. CR-02-0402-AP.
• Decision Date: 04 May 2005
• Parties: STATE of Arizona, Appellee, v. Frank Winfield ANDERSON, Appellant.

111 P.3d 369
210 Ariz. 327

STATE of Arizona, Appellee,
v.
Frank Winfield ANDERSON, Appellant

No. CR-02-0402-AP.

Supreme Court of Arizona, En Banc.

May 4, 2005.

111 P.3d 375

Terry Goddard, Attorney General, by Kent E. Cattani, Chief Counsel Capital Litigation Section, Phoenix, and Robert J. Gorman, Assistant Attorney General, Tucson, Attorneys for the State of Arizona

Law Offices of Thomas J. Phalen, by Thomas J. Phalen, Phoenix, and Law Offices of Thomas A. Gorman, by Thomas A. Gorman, Sedona, Attorneys for Frank Winfield Anderson.

OPINION

HURWITZ, Justice.

¶ 1 Frank Winfield Anderson ("Anderson") was convicted in 1998 in Mohave County Superior Court of armed robbery, conspiracy to commit first-degree murder, and three counts of first-degree murder. In 2001, we

111 P.3d 376

overturned these convictions because the trial court failed to permit defense counsel to attempt to rehabilitate jurors with respect to answers in a written questionnaire indicating opposition to the death penalty. State v. Anderson, 197 Ariz. 314, 4 P.3d 369 (2000) ("Anderson I"). After remand, Anderson was again convicted on all counts

¶ 2 Because Anderson received death sentences for the three murders, an automatic notice of appeal was filed pursuant to Arizona Rule of Criminal Procedure 31.2(b). This Court has jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") § 13-4031 (2001).

I. Factual and procedural background

¶ 3 In late July 1996, Anderson, then forty-eight years old, and Kimberly Lane, his fourteen-year-old traveling companion, left their homes in Lancaster, California and traveled to Nevada. On August 10, 1996, the two were hitchhiking in Las Vegas and were picked up by a man who knew a family near Kingman that took in boarders. The man drove Anderson and Lane to a residence in Golden Valley, approximately seventeen miles from Kingman. The residence was the home of Leta Kagen, her fifteen-year-old son Robert Delahunt, her husband Elliot Kagen, and Roland Wear. Robert Poyson, then nineteen, had also been staying there for about six months.

¶ 4 Anderson and Lane stayed at the Kagen home for several days. They decided to move on, but had no means to leave Golden Valley. Anderson, Lane, and Poyson therefore decided to kill the residents of the Kagen home and steal Wear's pickup. On August 13, while Elliot Kagen was attending a sick friend in Kingman, the three set their plan into action.

¶ 5 At approximately 8:00 p.m., Lane lured Delahunt to a trailer at the rear of the Kagen property, where Lane and Delahunt began kissing on a mattress. Anderson, who had previously placed a knife in the trailer, grabbed Delahunt and sliced his throat. Anderson and Delahunt then began to struggle for control of the knife.

¶ 6 Lane left the trailer as Poyson entered and joined the struggle. Anderson eventually put the tip of the knife in Delahunt's ear and held him while Poyson pounded the knife until the tip emerged through Delahunt's nose. Poyson then beat Delahunt's head with a rock until he died.

¶ 7 After Delahunt was killed, Anderson, Lane, and Poyson went back to the Kagens' trailer home. Leta Kagen and Wear went to sleep several hours later, unaware of Delahunt's fate. Around midnight, Poyson grabbed a rifle that was kept in the trailer home. With Anderson carrying a lantern for light, Poyson and Anderson entered the bedroom where Kagen and Wear were sleeping. Poyson shot Kagen, killing her almost instantly. He fired again, hitting Wear in the jaw. Wear leapt out of bed and Poyson hit him over the head with the butt of the rifle. Anderson hit Wear with the lantern, which shattered. Wear ran outside, pursued by Anderson and Poyson. Anderson handed a cinder block to Poyson, who beat Wear over the head until he was dead.

¶ 8 After covering up Wear's body and stealing some items from the residence, Anderson, Lane, and Poyson left Golden Valley in Wear's pickup. With Anderson driving, the trio headed east on Interstate 40. Several days later, Anderson was stopped in Illinois while driving alone in Wear's truck. An Illinois state trooper ran the license plate number and found that the truck was connected with a multiple homicide in Arizona. Anderson was arrested. A search of the truck revealed a purse containing identification and credit cards belonging to Kagen and Wear.

¶ 9 After his arrest, Anderson was interrogated three times. Each interview was preceded by Miranda warnings; each time Anderson waived his rights.¹ Although Anderson initially denied any involvement in the Golden Valley murders, by the end of the third interview he had confessed to involvement in the crimes.

111 P.3d 377

¶ 10 At trial, Anderson sought to minimize his participation in the homicides. He claimed that the murders and robbery were not premeditated and that he never intended for any of the victims to die. He admitted to slicing Delahunt's throat but claimed that he did so because he thought Delahunt was sexually assaulting Lane and because Delahunt bit Anderson when he intervened. Anderson testified that, after slicing Delahunt's throat, he watched Poyson beat Delahunt to death but did not participate or assist. He also claimed that he had no prior knowledge that Poyson was going to shoot Kagen or Wear and that he was simply an observer of those crimes. He testified that he felt threatened by Poyson and failed to intervene out of fear

¶ 11 The jury unanimously found Anderson guilty on all counts. After the jury verdicts, but before sentencing, the United States Supreme Court decided Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (Ring II). The legislature then amended the capital sentencing statute and assigned to juries the responsibility of finding aggravating circumstances and determining whether a sentence of life imprisonment or death should be imposed. 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, § 3 (codified at A.R.S. § 13-703.01 (Supp.2003)).

¶ 12 Because the jury that found Anderson guilty was discharged after the verdict, a new jury was impanelled for the aggravation and penalty phases of the trial. In the aggravation phase, the jury unanimously found multiple aggravating factors with respect to each of the three murders.² During the penalty phase, the jury concluded that any mitigating factors were not sufficiently substantial to call for leniency. The superior court accordingly imposed three death sentences. Anderson was also sentenced to life imprisonment without the possibility of parole for twenty-five years for conspiracy to commit first-degree murder and to twelve and one-half years for armed robbery. The superior court ordered that the sentences for conspiracy and armed robbery run consecutively to the sentences for first-degree murder and to each other.

II. Issues relating to the convictions

A. The indictment

¶ 13 Anderson argues that the indictment counts charging armed robbery, conspiracy to commit murder, and first-degree murder were each duplicitous. An indictment is duplicitous if it charges more than one crime in the same count. State v. Axley, 132 Ariz. 383, 392, 646 P.2d 268, 277 (1982). Duplicitous indictments are prohibited because they fail to give adequate notice of the charge to be defended, present the potential of a non-unanimous jury verdict, and make a precise pleading of prior jeopardy impossible in the event of a later prosecution. State v. Davis, 206 Ariz. 377, 389 ¶ 54, 79 P.3d 64, 76 (2003).

¶ 14 The State contends that Anderson waived these arguments. We agree. Before his first trial, Anderson moved for a more specific indictment. The superior court denied the motion and Anderson challenged that denial in his first appeal. Given our disposition of the case on other grounds, we declined to address the issue, noting instead that "the case can be remanded for a new indictment or the indictment may be amended prior to Defendants new trial to avoid any confusion as to the charges that Defendant must meet." Anderson I, 197 Ariz. at 325 ¶29, 4 P.3d at 380.

¶ 15 Anderson did not renew his attack on the indictment before the second trial. Instead, he first raised the issue at the close of the State's case-in-chief in a motion for acquittal pursuant to Arizona Rule of Criminal Procedure 20. The superior court denied the motion, ruling that Anderson had waived the argument by not raising it prior to trial.

¶ 16 Arizona Rule of Criminal Procedure 13.5(e) provides that "[n]o issue concerning

111 P.3d 378

a defect in the charging document shall be raised other than by a motion filed in accordance with Rule 16." Rule 16.1(b) requires that such motions be filed at least twenty days before trial; Rule 16.1(c), in turn, provides that any motion not timely filed is "precluded."³

¶ 17 We require pretrial objections to an indictment in order to allow correction of any alleged defects before trial begins. If a defendant makes a timely objection, the State can remedy any duplicity by filing a new indictment charging multiple counts, thus exposing a defendant to multiple penalties. See State v. Rushton, 172 Ariz. 454, 456, 837 P.2d 1189, 1191 (App.2002). By failing to object before trial and later seeking dismissal of allegedly duplicitous counts, a defendant seeks to have his cake and eat it too: he avoids the potential of multiple punishments by depriving the State of the opportunity to amend, and then attempts to avoid any punishment at all. See id. ("While defendant risked, in the alternative, the possibility of a non-unanimous guilty verdict on the single charge as alleged, his failure to object to the indictment indicates a risk he was willing to take. Defendant simply gambled and lost and cannot now be heard to complain.").

¶ 18 Because the first appeal left the issue unresolved, Anderson was not relieved of the obligation to raise the objection anew after remand. See United States v. Gomez, 67 F.3d 1515, 1526 n. 13...