State v. Anthony

• Decision Date: 28 July 2008
• Docket Number: No. CR-04-0098-AP.,CR-04-0098-AP.
• Citation: 189 P.3d 366,218 Ariz. 439
• Parties: STATE of Arizona, Appellee, v. David Lamar ANTHONY, Appellant.
• Court: Arizona Supreme Court

189 P.3d 366

218 Ariz. 439

STATE of Arizona, Appellee, v. David Lamar ANTHONY, Appellant.

No. CR-04-0098-AP.

Supreme Court of Arizona, En Banc.

July 28, 2008.

Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel Capital Litigation Section, Phoenix, Amy Pignatella Cain, Assistant Attorney General, Tucson, Attorneys for the State of Arizona.

James J. Haas, Maricopa County Public Defender by Tennie B. Martin, Deputy Public Defender, Stephen J. Whelihan, Deputy Public Defender, Phoenix, Attorneys for David Lamar Anthony.

OPINION

HURWITZ, Justice.

¶ 1 On July 7, 2001, Donna Jean Anthony and her two children failed to arrive in Ohio as planned for a family visit. David Lamar Anthony, Donna's husband, was later charged with murdering the three. Anthony was convicted of three counts of first-degree murder after a jury trial in Maricopa County Superior Court; three death sentences were imposed.

¶ 2 This is an automatic appeal pursuant to Arizona Rule of Criminal Procedure 31.2(b) from the convictions and sentences. We have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 13-4031 (2001).

I.

¶ 3 At the time of trial, the bodies of the victims had not been recovered. Anthony did not admit to the crimes and there were no witnesses to the murders. The State's case was therefore built on circumstantial evidence. We begin by summarizing that evidence.¹

A.

¶ 4 Anthony and Donna were married in 1997. Donna had two minor children from a previous marriage — Danielle Romero, born in 1987, and Richard Romero, born in 1988 — both of whom lived with the Anthonys. The Anthony marriage was troubled almost from the outset. Donna and Anthony frequently argued and the evidence suggests that Anthony was unfaithful. Donna apparently did not trust Anthony in financial matters. In late 2000, the family home was refinanced. Donna instructed the mortgage officer not to release the loan proceeds, approximately $105,000, to Anthony. She deposited the check into her personal savings account at Bank One, which Anthony could not access.

¶ 5 On June 25, 2001, Donna bought plane tickets for her and the children to visit her family in Columbus, Ohio; their flight was to leave Phoenix on July 7. Three days later, someone changed the personal identification number ("PIN") on Donna's Bank One account. Later that week, Anthony arranged to buy a new pickup truck, but delayed closing the purchase until July 7, telling the salesman that he shortly expected to "com[e] into some money." Just before Donna and the children were scheduled to leave town, Anthony arranged for a carpet cleaning service to come to the home on July 9.

B.

¶ 6 At 6:00 p.m. on July 6, Donna came home from work and took a nap. Anthony was also at home. At 6:51 p.m., a call was made from Donna's mobile phone to Bank One; the caller transferred $84,000 — virtually all of the money remaining from the home refinancing — from Donna's account to the Anthonys' joint checking account. This transaction required use of the PIN created on June 28.

¶ 7 After Donna awoke on July 6, she went to work at a second job at the post office. At 2:18 a.m. on July 7, she clocked out of her shift. At 3:30 a.m., her credit card was used at a gas station between her home and the post office. At 5:57 a.m., Donna's mobile phone was used to call Bank One customer service. Shortly thereafter, the voicemail on Donna's mobile phone was called three times. Donna's mobile phone was never used again. Donna, Danielle, and Richard did not board their 7:35 a.m. flight on July 7 from Phoenix to Las Vegas or the connecting flight from Las Vegas to Columbus.

¶ 8 When Donna and the children failed to arrive in Ohio as scheduled, Donna's family attempted unsuccessfully to contact Anthony. The family then asked law enforcement to investigate. Early the next morning, July 8, a Maricopa County Sheriff's Office ("MCSO") deputy went to the Anthony residence. The deputy told Anthony that Donna and the two children had not arrived in Ohio. Anthony did not seem "overly surprised" and did not ask the deputy to search for them. Later that morning, Anthony finalized his purchase of the pickup truck, writing a $39,147.17 check from the couple's joint account.

¶ 9 On the evening of July 9, Donna's truck was found in a supermarket parking lot in Phoenix. The doors were unlocked and the keys were in the ignition. There was no sign of forced entry. The vehicle had been recently washed.

¶ 10 On July 9, Anthony purchased a new mattress; he paid cash and gave the store a false name and address. That same morning, Anthony arranged for house cleaners to come to the residence on the following day. At 11:00 a.m., the previously scheduled carpet cleaners arrived. One of them helped Anthony remove the old mattress from the master bedroom.

¶ 11 Anthony told the carpet cleaners that his dog had bled on the office carpet and asked them to clean it. Anthony said that he had tried to remove the stain and the carpet appeared as if it had been cleaned.

¶ 12 At 3:41 p.m., an MCSO deputy returned to the Anthony residence. The carpet appeared to have been cleaned recently and the house looked "immaculate" with a strong smell of Pinesol. Anthony told the deputy that he did not want Donna listed as missing because she might get angry if detained by officers responding to such an alert. That evening, Anthony bought a new clothes washer, clothes dryer, and vacuum cleaner.

¶ 13 On the morning of July 10, the house cleaners arrived and Anthony instructed them to focus on the baseboards and "the dirty areas on the walls." One of the cleaners saw Anthony place new pillowcases on the bed in the master bedroom. The sheets on the bed also appeared to be new.

¶ 14 On the same day, Anthony wrote a check to himself for $40,000 from the joint checking account. He deposited the check into a checking account that he shared with his son.

C.

¶ 15 Anthony was questioned several times by MCSO officers in connection with the family's disappearance. He told detectives that Donna and the children had left for the airport between 5:00 and 5:30 a.m. on July 7. He said Donna customarily carried large amounts of cash and sometimes wore expensive jewelry; he suggested that she may have put herself in danger by driving through the wrong neighborhood. He also speculated that Donna may have driven to the airport, but then decided to drive to Las Vegas. Anthony claimed that "they" had transferred the funds from Donna's account into the joint account; $40,000 was to be used for the new truck and the balance to settle a pending lawsuit with neighbors.² He denied any marital problems.

D.

¶ 16 From July 17 until July 19, 2001, the MCSO executed a search warrant at the Anthony residence. During the search, carpeting, drywall, and bedding were removed for forensic testing. If blood stains were apparent during the search, MCSO detectives took samples for testing. If no blood stains were visible, the detectives applied Luminol, a chemical that fluoresces when it comes into contact with blood, to suspect areas. When the Luminol test was positive, samples were collected. Because Luminol can give false positives, analysts later ran another test to confirm the presence of blood.

¶ 17 Detectives found a new mattress in the master bedroom. The bedding in the master bedroom and in Danielle's room was also new. In the trash bins, detectives recovered a two-liter bottle of Pinesol, several pairs of rubber surgical gloves, and two knives. There were traces of blood on both knives, but the blood was too degraded for DNA analysis.

¶ 18 In the master bedroom, small drops of blood (totaling about the volume of one sugar cube) were found on the wall behind the bed. DNA testing identified some of the blood as Donna's. The DNA of a second person was also found; Anthony could not be excluded as the possible contributor. Carpeting to the right of the bed also tested positive for blood.³

¶ 19 In the home office, three spots on the carpeting several inches in diameter tested positive for blood. The concrete slab underneath the carpet had a visible stain that tested positive for blood. The blood on the concrete slab was Danielle's.

¶ 20 In Richard's room, the side of the mattress, the side of the box springs, a body pillow, and a wall tested positive for blood. The blood on the mattress and on the body pillow was Richard's. Blood from an unidentified person was also found on the side of the mattress; Donna and Danielle could not be excluded as contributors. In the hallway outside the children's rooms, four spots on the wall tested positive for blood. One of the stains contained Richard's DNA, as well as DNA that was consistent with either Donna or Danielle.

¶ 21 A hamper in the children's bathroom tested positive for blood. Blood was found on the coat closet door, on the threshold of the door leading from the kitchen to the backyard, on the exterior wall just outside the door between the kitchen and the backyard, on the back patio, and on a wooden picnic bench on the patio. Several spots in the garage tested positive for blood.

¶ 22 The State's expert testified that the volume of blood discovered in the house was too small to prove either that the victims had died or the cause of any death.

¶ 23 Donna's truck was also subjected to forensic examination. Dried desert vegetation was found on the truck's undercarriage, the interior door handle, and in the driver's door hinge. The vehicle was processed for latent fingerprints, but only five were found. This low number, together with wipe marks all over the truck, suggested that someone had cleaned fingerprints from the vehicle. The driver's door, the interior door panel, the steering column, and the back of the passenger seat tested positive for blood. The bed liner, tailgate liner, and tailgate also tested positive for blood. The blood on the tailgate liner was consistent with the DNA of...