State v. Apelt

• Decision Date: 09 November 1993
• Docket Number: No. CR-91-0025-AP,CR-91-0025-AP
• Citation: 861 P.2d 654,176 Ariz. 369
• Parties: STATE of Arizona, Appellee, v. Rudi Alfred APELT, Appellant.
• Court: Arizona Supreme Court

Page 654

861 P.2d 654

176 Ariz. 369

STATE of Arizona, Appellee, v. Rudi Alfred APELT, Appellant.

No. CR-91-0025-AP.

Supreme Court of Arizona, In Banc.

Nov. 9, 1993.

[176 Ariz. 371] Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section and Joseph T. Maziarz, Phoenix, for State of Ariz.

William C. Haus, Apache Junction, for Rudi Alfred Apelt.

OPINION

MARTONE, Justice.

The defendant, Rudi Apelt, was found guilty of premeditated first degree murder and conspiracy to commit first degree murder, and he was sentenced to death. The murder conviction and death sentence were automatically appealed to this court pursuant to Rules 26.15 and 31.2(b), Ariz.R.Crim.P. and A.R.S. § 13-4031. ¹ We now affirm defendant's conviction and sentence.

I. BACKGROUND

Most of the facts relevant to this appeal are summarized in the companion case, State v. Michael Apelt, 176 Ariz. 349, 861 P.2d 634 (1993). Additional facts are stated throughout.

II. ISSUES

We address the following issues:

A. Trial Issues

1. Did the trial court err by denying defendant's motion for a directed verdict of acquittal?

2. Did the trial court err by refusing to conduct an ex parte hearing during which defendant could request funds for expert assistance?

3. Was defendant denied effective assistance of counsel?

B. Sentencing Issues

1. Did the trial court err by refusing to fund a trip to Germany by defense counsel to look for mitigating evidence?

2. Was the death sentence appropriate?

a. Did the trial court err by finding aggravating factors?

b. Did the trial court err by finding that there were no mitigating factors sufficient to require leniency?

C. Other Issues

In addition to the above, Rudi makes the following claims of error, all of which are meritless and do not warrant separate discussion.

1. The trial court erred by denying defendant's motion for a redetermination of probable cause because his attorney's joint representation of him and Michael at the preliminary hearing deprived defendant of his right to effective assistance of counsel. State v. Charo, 156 Ariz. 561, 566, 754 P.2d 288, 293 (1988) ("the issue of probable cause is a closed question after the jury determines a defendant's guilt beyond a reasonable doubt"). ²

2. Evidence of the Apelts' shopping sprees and their relationships with women should have been excluded under Rule 404(b), Ariz.R.Evid. See State v. Romero, 130 Ariz. 142, 144, 634 P.2d 954, 956 (1981) (trial court has broad discretion in admitting evidence of relevant prior bad acts).

3. The trial court should have instructed the jury on the lesser included offense of second degree murder. See State v. Clabourne, 142 Ariz. 335, 345, 690 P.2d 54, 64 (1984) (instruction on lesser included offenses inappropriate in absence of evidence supporting the lesser offense).

4. Arizona's death penalty statute is unconstitutional because:

(a) It does not require the trial court to make detailed factual findings in its special verdict. See State v. Walton, 159 Ariz. 571, 585, 769 P.2d 1017, 1031 (1989) (statute not constitutionally invalid for failing to require more detailed factual finding), aff'd, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990).

(b) It mandates a sentence of death whenever at least one aggravating factor and no mitigating factors are found. See State v. Gillies, 142 Ariz. 564, 568, 691 P.2d 655, 659 (1984) (mandatory nature of Arizona's capital sentencing structure is constitutional because defendant may raise any relevant factor in mitigation), cert. denied, 470 U.S. 1059, 105 S.Ct. 1775, 84 L.Ed.2d 834 (1985).

(c) The judge rather than the jury determines the existence of aggravating and mitigating factors in violation of defendant's Sixth and Fourteenth Amendment rights. See Walton v. Arizona, 497 U.S. 639, 649, 110 S.Ct. 3047, 3054-55, 111 L.Ed.2d 571 (1990) (Arizona's death penalty scheme not unconstitutional because judge makes these findings).

(d) The death penalty is per se unconstitutional because it is cruel and unnecessary to achieve the legislature's objectives. See Gregg v. Georgia, 428 U.S. 153, 185-87, 96 S.Ct. 2909, 2931, 49 L.Ed.2d 859 (1976) (death penalty for murder is not per se cruel and unusual).

(e) It discriminates against young, poor, male defendants. See McCleskey v. Kemp, 481 U.S. 279, 292-93, 107 S.Ct. 1756, 1767, 95 L.Ed.2d 262 (1987) (defendant must prove purposeful discrimination in his case to prevail on such a claim; statistical evidence is not sufficient); State v. White, 168 Ariz. 500, 513, 815 P.2d 869, 882 (1991) (Arizona death penalty statute does not deprive male defendants of equal protection), cert. denied, 502 U.S. 1105, 112 S.Ct. 1199, 117 L.Ed.2d 439 (1992).

5. The trial court should have authorized defendant to obtain information regarding all Arizona first degree murder cases so that he could prove his sentence is disproportionate. State v. Greenway, 170 Ariz. 155, 171, 823 P.2d 22, 38 (1991) (not appropriate for trial court to consider sentences imposed in other cases when sentencing defendant); State v. Salazar, 173 Ariz. 399, 417, 844 P.2d 566, 584 (1992) (defendant not entitled to proportionality review by appellate court), cert. denied, 509 U.S. 912, 113 S.Ct. 3017, 125 L.Ed.2d 707 (1993).

6. Defendant's sentence is excessive and disproportionate. See Salazar, 173 Ariz. at 417, 844 P.2d at 584.

III. ANALYSIS

A. Trial Issues

1. Sufficiency of the Evidence

Rudi claims that the trial court erred by denying his Rule 20 motion for a directed verdict of acquittal. We have stated:

A judgment of acquittal is appropriate when "no substantial evidence [exists] to warrant a conviction." Substantial evidence is more than a mere scintilla and is such proof that "reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt."

State v. Nunez, 167 Ariz. 272, 278, 806 P.2d 861, 867 (1991) (citations omitted). In reviewing the trial court's ruling on a Rule 20 motion, we view the evidence and the inferences that can be drawn from the evidence in the light most favorable to sustaining the verdict. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).

The evidence introduced at Rudi's trial was sufficient to prove that Michael pressured Cindy into buying life insurance in November so he could kill her and collect the proceeds. In early December, when Michael believed the $400,000 policy was in effect, Rudi and Anke reserved a rental car with a large trunk, far more suitable for transporting a body or a bound person than Cindy's small Volkswagen was. The reservation was cancelled after Michael found out that the insurance company would not issue the large policy. Therefore, the jury could have found that the agreement to kill Cindy was formed between Michael and Rudi in early December. Indeed, Michael's marriage proposal to a woman just a few days after meeting her, and Rudi's attempt to get Annette to secretly marry him, suggest that a plan to marry, insure, and murder someone was formed much earlier.

Michael discussed the murder with Rudi several hours before it took place, at which time Rudi agreed to participate in it. Rudi and Anke then waited in the rental car and followed Michael when he drove past. Rudi took the lead and turned off the road before Michael, demonstrating a prearranged site. This evidence was clearly sufficient to demonstrate Rudi's intent and premeditation.

Even if we assume that Michael actually stabbed Cindy, the evidence was sufficient to allow the jury to find that Rudi agreed to help Michael commit the offense and that he followed Michael to the desert in an attempt to participate in the killing. The evidence was sufficient to allow the jury to conclude that Rudi "agreed to aid or attempted to aid" Michael in the murder and thus find him guilty as an accomplice. A.R.S. § 13-301(2); see also A.R.S. § 13-303. The jury was properly instructed on accomplice liability.

2. Denial of Request for ex parte Hearing

Rudi asked that the trial court hold an ex parte hearing at which he could present a request for expert assistance under A.R.S. § 13-4013 without "tipping his hand" to the prosecution. The trial court denied the request, noting that there was no authority for such a hearing. Therefore, it would violate Canon 3(A)(4) of the Code of Judicial Conduct, which forbids ex parte proceedings except as authorized by law. Defendant claims that this denial was error and deprived him of the opportunity to request expert assistance.

In the companion case, we rejected the claim that a defendant has a constitutionally guaranteed right to present requests for expert assistance ex parte. Michael Apelt, 176 Ariz. at 365, 861 P.2d at 650. Even if defendant had such a right, he could not show prejudice from the denial of it in this case. After his request for an ex parte hearing was denied, his request for the expert assistance of a pathologist was granted.

3. Ineffective Assistance of Counsel

The theory of Rudi's defense was that Michael killed Cindy before Rudi arrived at the murder scene. To bolster this theory, the defense called Dr. Vincent DiMaio, a forensic pathologist, to testify that Cindy's wounds (both bruises and knife wounds) were consistent with a single assailant. Dr. DiMaio also testified, on direct examination, that the assailant was probably right-handed. The prosecution further explored this on cross-examination and then called two witnesses--a documents analyst and Anke Dorn--who testified that Michael is left-handed and Rudi is right-handed. Instead of helping the defendant's case, Dr. DiMaio's testimony could have damaged it. Defendant claims that the presentation of damaging evidence, as well as counsel's failure to file a timely notice of appeal from his conspiracy conviction and sentence, constituted ineffective assistance of counsel.

We have recommended that defendants raise ineffective assistance of counsel...