State v. Bishop

Decision Date01 March 1978
Docket NumberNo. 3569,3569
Citation576 P.2d 122,118 Ariz. 263
PartiesSTATE of Arizona, Appellee, v. Ronald Paul BISHOP, Appellant.
CourtArizona Supreme Court

Bruce E. Babbitt, Atty. Gen. by William J. Schafer, III, Diane M. DeBrosse, Asst. Attys. Gen., Phoenix, for appellee.

David A. Chamberlain, Prescott, for appellant.

HOLOHAN, Justice.

The appellant, Ronald Paul Bishop, was tried and convicted by a jury of first-degree murder on May 19, 1976. On June 18, 1976 following an aggravation-mitigation hearing pursuant to A.R.S. § 13-454(E), the trial judge sentenced appellant to death, finding that the offense had been committed in an especially heinous, cruel and depraved manner, and that no mitigating circumstances existed. This appeal followed.

Appellant Bishop, Fred Van Haelst, Catherine Leckliter and her two-year-old daughter met each other and the victim, Norman Troxell, at the Salvation Army Welfare Center in Phoenix on January 18, 1976. After deciding to travel together, the group left Phoenix for Bumble Bee, Arizona in Troxell's 1966 Chevrolet on January 20, 1976. Troxell was apparently a heavy drinker and was drunk throughout the group's travels in the Arizona desert.

On the morning of January 22, appellant Bishop instructed Van Haelst to tell Mrs. Leckliter and her daughter to take a walk far from the camp. This was accomplished.

Appellant next awakened the victim who was sleeping in the car, and asked him to look at the car's engine. He then asked the victim to inspect a broken light over the license plate at the rear of the automobile. While he stood at the rear of the car, appellant inflicted several blows to the back of the victim's head with a claw hammer. The appellant stated that Troxell fell but that he was not unconscious and that after Troxell fell, appellant removed Troxell's watch, wallet and shoes and tied his legs together with a rope.

The appellant testified that he and Van Haelst then dragged the victim toward an abandoned mine shaft, which was approximately 15 feet deep. The appellant denied that he threw the victim into the mine shaft, asserting instead that because the victim was alive and struggling, he fell into the shaft on his own. The appellant also testified that after he discovered that Troxell had not only fallen into the mine shaft but was apparently continuing to struggle, he threw rocks on top of the victim.

Appellant and Van Haelst next did what they could to clean up the area, by covering the bloodstains with mud and scattering the traces of their camp. They burned some of Troxell's belongings in the fire before extinguishing it, and later dropped the remainder of the possessions over a steep cliff. When Mrs. Leckliter returned with her daughter, they left in Troxell's car.

Appellant and his companions traveled to Oregon and later to Texas in Troxell's car. At some point during their journey, Mrs. Leckliter forged a bill of sale to Troxell's car.

Meanwhile, Troxell's body was discovered and upon identification, a nationwide bulletin for the car and its occupants was issued by the Yavapai County Sheriff's office. Appellant Bishop, Mrs. Leckliter and her daughter were apprehended near Houston, Texas; Van Haelst was apprehended in Texas several days later. Following a mandatory hearing before a Texas magistrate where he was informed of his Miranda rights and following questioning by Arizona authorities in Texas, appellant Bishop admitted his acts and agreed to conduct a videotaped "walk-through" of the crime at the scene for the authorities upon his arrival back in Arizona.

Based upon appellant's own statements and the testimony of law enforcement officers, the Yavapai County Grand Jury returned an indictment for first-degree murder on March 22, 1976. Appellant was subsequently arraigned and after a suppression hearing, his trial and conviction followed.

Appellant has raised the following issues for our consideration:

1. Whether the confession made by appellant in Texas should have been suppressed;

2. Whether appellant's statements at a videotaped "walk-through" of the crime were voluntary;

3. Whether the evidence presented was sufficient to sustain the trial court's sentence;

4. Whether sufficient mitigating factors existed so as to call for leniency in sentencing;

5. Whether imposition of the death penalty was excessive;

6. Whether the provisions of A.R.S. § 13-454 were unconstitutionally vague; whether the imposition of a death sentence constituted cruel and unusual punishment.

1. SUPPRESSION OF THE CONFESSION: THE PROSECUTOR'S TESTIMONY

Appellant has advanced the argument that it was improper for Mr. Kuebler, the Yavapai County Attorney to have testified at the omnibus hearing in a case he alone was prosecuting. Additionally, appellant argues that the statement was not shown to be voluntary because the prosecutor was the only witness, other than the appellant, as to what transpired when appellant and the prosecutor were the only ones present. Appellant has not questioned the truth of the prosecutor's testimony, merely the fact of his testimony.

Appellant's contention is totally without merit because there was another witness to the conversation between appellant and the prosecutor, and the state proved the voluntariness of the confession independently through the testimony of that witness, Detective Stephens. Secondly, the prosecutor's testimony was given at the insistence of the appellant.

The Stephens testimony disclosed that after about an hour and a half of questioning by Kuebler in Texas, the appellant asked to speak with him alone. Stephens remained outside the interrogation room within easy hearing distance primarily out of concern for Kuebler's safety. Thus, Stephens was able to testify that once alone with Kuebler, appellant said, "I might as well tell you the truth. I was lying about that other statement." The appellant then proceeded to relate the details of the crime to the prosecutor, which details were later reduced to a written statement and signed by appellant. 1

Detective Stephens also testified that he did not hear the prosecutor make any threats or offer any inducement for this statement. The appellant has never claimed either before the trial court or on appeal that any threats, or force, or offers were made to him for the statement.

Unlike the situation in State v. Holden, 88 Ariz. 43, 352 P.2d 705 (1960), the conversation alone with the prosecutor here was initiated by the appellant, and the state offered independent evidence of what took place between appellant and the prosecutor. Once the prosecution met its burden of showing that the confession was freely and voluntarily made, the defense was under an obligation to rebut. State v. Holden, 88 Ariz. 43, 352 P.2d 705 (1960). No evidence was presented by the defense at the suppression hearing. The only defense tactic was to call the prosecutor as an adverse defense witness to testify to facts already in evidence through Detective Stephens. The testimony of Kuebler merely corroborated that of Stephens and was at most cumulative.

The device of calling the prosecutor here at a pretrial hearing as an adverse defense witness will not be approved by this court as a means for disqualifying the prosecutor from continuing to conduct the case where the testimony, although relevant, is merely cumulative and not necessary to the defense of the case. Johnson v. State, 23 Md.App. 131, 142, 326 A.2d 38, 45 (1974), aff'd per curiam, 275 Md. 291, 339 A.2d 289 (1975). The wide latitude that the trial court gave the defense in questioning the prosecutor served to be more in the nature of additional discovery. There was no abuse of discretion in permitting Kuebler to continue to act as prosecutor in the case. The ruling that appellant's statement was voluntary was correct under the circumstances shown by the hearing.

2. THE VIDEOTAPED WALK-THROUGH

Upon appellant's return from Texas to Arizona, before he was incarcerated in the Yavapai County Jail, he participated in a videotaped walk-through of the crime at the scene. In attendance were the appellant, Van Haelst, County Attorney Kuebler and several Yavapai County law enforcement officers. This videotape was admitted into evidence by the trial judge.

Appellant's main objection is that the Miranda warnings given him at the scene were not sufficient to support a knowing, voluntary and intelligent waiver of those rights on his part. Appellant has argued that the drive back from Texas with the Arizona law enforcement officers, and the fact of his attendance at the walk-through with only the prosecutor and the officers present were "derived coercion" on the part of the state depriving him of his free will.

There is no testimony to support this contention by appellant. In fact, there is an abundance of evidence which supports the opposite conclusion.

The appellant was apprehended in Texas and given the warnings mandated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) at the time of his arrest. The Texas Criminal Code provides that after arrest, an individual must be taken before a magistrate and formally advised of his rights before any statement given can be used as evidence against him in a court of law. Accordingly, appellant was taken before a magistrate within approximately four hours after his arrest. He was formally charged, again given his Miranda rights and he signed a statement acknowledging that he understood those rights. 2

Some questioning occurred after the appearance before the magistrate, during which appellant told the Texas police that he would only admit to having stolen Troxell's car and to having had "a squabble" with the victim.

The appellant adhered to this statement the next day when questioned by County Attorney Kuebler. However, after being told that Van Haelst had been apprehended, the appellant asked to speak with Kuebler alone, and thereafter made...

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