State v. Andriano

• Decision Date: 09 July 2007
• Docket Number: No. CR-05-0005-AP.,CR-05-0005-AP.
• Citation: 215 Ariz. 497,161 P.3d 540
• Parties: STATE of Arizona, Appellee, v. Wendi Elizabeth ANDRIANO, Appellant.
• Court: Arizona Supreme Court

161 P.3d 540

215 Ariz. 497

STATE of Arizona, Appellee, v. Wendi Elizabeth ANDRIANO, Appellant.

No. CR-05-0005-AP.

Supreme Court of Arizona, En Banc.

July 9, 2007.

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

James J. Haas, Maricopa County Public Defender by Brent E. Graham, Margaret M. Green, Deputy Public Defenders, Phoenix, Attorneys for Wendi Elizabeth Andriano.

OPINION

BERCH, Vice Chief Justice.

¶ 1 In 2004, Wendi Andriano was found guilty of one count of first degree murder and sentenced to death. This automatic appeal followed. We have jurisdiction pursuant to Article 6, Section 5(3), of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") section 13-4031 (2001).

I. FACTS¹ AND PROCEDURAL BACKGROUND

¶ 2 Wendi Andriano, her terminally ill husband, Joe, and their two small children attended a barbeque on October 7, 2000. They returned to their apartment around midnight and put the children to bed.

¶ 3 At about 2:15 a.m. on October 8, Andriano called Chris, a coworker who also lived at the apartment complex, and asked her to watch the children while Andriano took Joe to the doctor. When Chris arrived, Andriano met her outside the apartment. She told Chris, "I have a problem. Don't ask any questions. My husband's in on the floor dying and I haven't called 911 yet." When Andriano cautioned, "He doesn't know I haven't called 911," Chris urged her to make the call.

¶ 4 Upon entering the apartment, Chris found Joe lying on the living room floor in the fetal position. He had vomited, appeared weak, and was having difficulty breathing. While Andriano was in another room calling 911, Joe told Chris that he needed help and had "for a long time." He asked why it was taking forty-five minutes for the paramedics to arrive.

¶ 5 Andriano returned to the room and told Chris she needed to get Joe to the car so she could drive him to the hospital because the paramedics were responding to another call. Joe said he could not get up, so Andriano tried to lift him. When she could not, she became irritated and yelled at Joe, using profanities. Hearing sirens approaching, Chris went out to direct the paramedics to the apartment as Joe began to vomit again.

¶ 6 As the paramedics were unloading their equipment, Andriano came out of the apartment screaming at them to go away. She then slammed the door. Chris and four paramedics knocked on the apartment door, but no one answered. After five to ten minutes of knocking, the Phoenix Fire Department alarm room called the Andrianos' home telephone in an attempt to get Andriano to open the door. The alarm room notified the paramedics that contact had been made with someone in the apartment who would come out to speak with them. Rather than coming through the front door, which opened to the living room, Andriano went out through her back door, climbed over the back patio wall, and walked around the apartment building to the front door, where Chris and the paramedics were standing. Andriano had changed her shirt and her hair was wet. She told the paramedics that Joe was dying of cancer and had a do-not-resuscitate order. She explained that "this was not the way that he wanted to go." The paramedics and Chris left without going into the apartment.

¶ 7 Andriano called 911 again at 3:39 a.m. The same paramedics responded and saw Andriano, wearing a bloody shirt, standing outside the apartment talking to a police officer.

¶ 8 When the paramedics entered the apartment, they found Joe lying on the floor in a pool of blood. He had a deep stab wound to the left side of his neck and lacerations on his head that exposed some brain matter. A police detective observed at 3:52 a.m. that the blood surrounding Joe's head was already starting to dry. A broken bar stool covered in blood was found near Joe's body, as were pieces of a lamp, a kitchen knife with blood on the sharp edge, a bloody pillow, and a belt.

¶ 9 A search of the Andrianos' storage unit revealed an open cardboard shipping box containing a 500-gram bottle of sodium azide, two Tupperware containers containing sodium azide, nine Q-tips, a plastic knife and fork, and two pairs of latex gloves. Andriano's fingerprints were on the plastic knife and the vacuum-packed bag in which the cardboard box was shipped. During a search of the Andrianos' apartment, the police found gelatin capsules filled with sodium azide in a bottle labeled for an herbal supplement. Trace amounts of sodium azide were also discovered in the contents of a pot and two soup bowls in the kitchen. In all, 20.8 grams of sodium azide could not be accounted for.

¶ 10 The medical examiner determined that Joe sustained brain hemorrhaging caused by no fewer than twenty-three blows to the back of his head, eight to ten of which independently could have rendered Joe unconscious. Defensive wounds on Joe's hands and wrists indicated, however, that he was conscious for at least part of the attack. Joe also sustained a 3 and 3/4-inch-long by 2-inch-wide stab wound to the left side of his neck that extended to his spine and severed his carotid artery. The medical examiner opined that the blows to the head were sustained before the stab wound to the neck and that Joe was still alive, although likely unconscious, when he was stabbed. Trace amounts of sodium azide were found in Joe's blood and gastric contents. The cause of death was attributed to blunt force trauma and the stab wound.

¶ 11 Based on the blood spatter and other evidence, a Phoenix police detective opined that Joe was lying down while he was being struck and did not get up during the attack. He further opined, based on the absence of arterial spurting on the belt and the knife, that both items were placed beside Joe's body after he died. Blood spatter on the bar stool, on the other hand, suggested that the stool was present when the arterial spurting began.

¶ 12 After being taken into custody, Andriano called one of her coworkers and asked her to hide certain items that were in Andriano's business office. Andriano's adoptive father told a police detective on the day of the murder, "I remember [Andriano] telling me that she stabbed [Joe]."

¶ 13 Andriano was indicted on one count of first degree murder. The State filed a notice of intent to seek the death penalty and subsequently alleged two aggravating factors: that Andriano committed the offense "in expectation of the receipt [ ] of anything of pecuniary value," in violation of A.R.S. § 13-703(F)(5) (Supp.2000), and that she committed the murder "in an especially heinous, cruel or depraved manner," in violation of A.R.S. § 13-703(F)(6). The State further alleged that the offense was a dangerous felony, see id. § 13-604(P), because it "involved the intentional or knowing infliction of serious physical injury upon Joseph Andriano."

¶ 14 At trial, Andriano testified that after a failed assisted suicide attempt by poison, she and Joe got into a fight, during which she hit Joe with a bar stool in self-defense. She claimed that he ultimately slit his own throat. The jury found Andriano guilty of first degree murder and further found that the murder was a dangerous felony.

¶ 15 The same jury found the (F)(6) "especially cruel" aggravating factor, but did not find the (F)(5) "pecuniary gain" aggravator. Finding that the mitigating circumstances were not sufficiently substantial to call for leniency, the jury returned a verdict calling for a sentence of death.

II. DISCUSSION

¶ 16 Andriano raises eleven issues on appeal and lists an additional thirteen claims to avoid preclusion.²

A. Guilt Phase Issues

1. Admission of other act evidence

¶ 17 Andriano claims that evidence of her extramarital affairs and her attempts to obtain insurance policies on Joe's life was unfairly prejudicial and was neither intrinsic to the charge against her nor admissible under Arizona Rule of Evidence 404(b). We review evidentiary rulings for an abuse of discretion. State v. McGill, 213 Ariz. 147, 156, ¶ 40, 140 P.3d 930, 939 (2006), cert. denied, ___ U.S. ___, 127 S.Ct. 1914, 167 L.Ed.2d 570 (2007).

¶ 18 The trial court found the insurance and affairs evidence "intrinsic" to the crime. "`Other act' evidence is `intrinsic' when [1] evidence of the other act and evidence of the crime charged are `inextricably intertwined' or [2] both acts are part of a `single criminal episode' or [3] the other acts were `necessary preliminaries' to the crime charged." State v. Dickens, 187 Ariz. 1, 18-19 n. 7, 926 P.2d 468, 485-86 n. 7 (1996) (quoting United States v. Coleman, 78 F.3d 154, 156 (5th Cir.1996)).

a. Life insurance policies

¶ 19 After three surgeries to remove a recurring tumor in his salivary gland and as many misdiagnoses, Joe was diagnosed with metastatic adenoid cystic carcinoma in 1998. By that time, the cancer had spread to his lungs and his condition was deemed terminal.

¶ 20 Nevertheless, during August and September of 2000, Andriano made several attempts to obtain insurance on Joe's life through various companies. During the prescreening process, Andriano claimed that Joe did not have cancer. One agent contacted Joe on September 6 after receiving an electronic pre-application, at which time Joe indicated that he was not interested in applying. Andriano sent an email three days later from her personal email account asking that Joe's request be reinstated and directing that further contact be made with her. She also asked two men to pose as Joe for a life insurance physical exam, one of whom she offered to pay as much as $50,000. Both refused. No life insurance policy was ever obtained through these efforts.

¶ 21 Andriano's attempts to procure insurance on Joe's life do not fall into any of the three categories of intrinsic evidence. Because she never secured insurance, the attempts to procure it were not...