State v. Bolton, CR-93-0086-AP

Citation182 Ariz. 290,896 P.2d 830
Decision Date13 June 1995
Docket NumberNo. CR-93-0086-AP,CR-93-0086-AP
PartiesSTATE of Arizona, Appellee, v. Daren Lee BOLTON, Appellant.
CourtSupreme Court of Arizona

[182 Ariz. 295] Grant Woods, Atty. Gen., Phoenix by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section, Eric J. Olsson, Asst. Atty. Gen., for appellee.

Susan A. Kettlewell, Pima County Public Defender, Tucson by Frank Leto, Deputy Pima County Public Defender, Brian X. Metcalf, Deputy Pima County Public Defender, for appellant.


MOELLER, Vice Chief Justice.

A Pima County jury convicted appellant Daren Lee Bolton (defendant) of kidnapping, burglary, and first degree felony murder for the June 27, 1986, abduction and killing of a three-year-old Tucson girl. The trial court sentenced defendant to thirty-three years for kidnapping, twenty years for burglary, and

[182 Ariz. 296] death for first degree murder. Appeal to this court is automatic. See Ariz.R.Crim.P. 31.2(b); Ariz.Rev.Stat.Ann. (A.R.S.) §§ 13-4031, 13-4035 (1989). We affirm defendant's convictions and sentences. 1

On the night of June 26, 1986, sometime between 11:30 p.m. and 8:30 a.m., an intruder entered the home of the three-year-old victim and her parents and abducted the child while she slept. He entered through the victim's bedroom window. The victim's body was discovered four days later in an old, inoperative, English-style taxicab that the owner had parked in a nearby storage lot. She had one stab wound in her chest. Although the body was clothed, her panties were found elsewhere in the taxicab, and the shirt that covered her stab wound was untorn, indicating that the offender may have disrobed the victim, stabbed her, and then replaced her clothing.

At both the victim's home and the abandoned taxicab, police investigators found finger and palm prints, later identified as defendant's. Also found in the taxi were the victim's fingerprints, a pizza box, cigarette butts, and a semen-stained adult sock. Blood group substances contained in the semen stains are consistent with the victim's blood chemistry, but cannot be conclusively traced to defendant. Investigators found two shoe prints near the victim's home and two more near the taxicab. Three of them appeared to match each other, but none has ever been matched to any particular shoe.

After failing to match the fingerprints found at the scenes to any known suspect, Tucson police distributed fingerprint samples to police agencies in other jurisdictions. In November 1990, police in Illinois, using a computer system not then available in Arizona, identified a fingerprint found on the victim's window screen as belonging to defendant, who was then incarcerated in Arizona State Prison on an unrelated conviction. On February 19, 1991, after further police investigation, the Pima County Grand Jury indicted defendant for the three charges for which he was convicted.

At trial, the prosecution relied largely on physical evidence, particularly fingerprints. Defendant, who testified on his own behalf, admitted that he had touched the taxicab, but claimed that he had only been there to steal parts two or three days before the date of the murder. He also admitted that he had been at the victim's window on the night of the abduction. He testified that he went to the victim's home with an accomplice to steal drugs but was scared off by the family dog. The accomplice, according to defendant, later returned alone and kidnapped the victim. Defendant claimed that he had since killed the accomplice and buried his body in an unspecified place in the desert. The jury found defendant guilty of first degree murder, kidnapping, and burglary. With respect to the murder count, the jury unanimously found defendant guilty of felony murder, and eleven of twelve jurors found the murder to have been premeditated.

At sentencing, the court found as aggravating factors that (1) defendant was an adult and the victim was a child less than fifteen years old, A.R.S. § 13-703(F)(9) (Supp.1994), and (2) defendant committed the murder in an especially heinous, cruel, or depraved manner, A.R.S. § 13-703(F)(6) (Supp.1994). The court found no mitigating factors sufficiently substantial to call for leniency.


We address one issue relating to appellate procedure, thirteen trial issues, and eight sentencing issues. The issue relating to appellate procedure is:

[182 Ariz. 297] 1. Whether our order limiting defendant's opening brief to the length specified in the Rules of Criminal Procedure violated his right to due process and effective assistance of counsel.

The trial issues are:

1. Whether the trial court should have changed the venue of defendant's trial;

2. Whether the trial court erred by "death qualifying" the jury;

3. Whether the trial court erred by dismissing four jurors for cause when they said their opposition to the death penalty would affect their deliberation;

4. Whether the state's use of peremptory strikes was unconstitutional;

5. Whether the trial court should have excluded evidence of the nature and fact of defendant's prior convictions;

6. Whether the trial court should have excluded expert testimony based on the "phenomenon" of child sex murderers who try to restore their victims to their original appearances;

7. Whether the trial court should have excluded an allegedly gruesome photograph;

8. Whether the trial court should have excluded expert testimony that it would not be surprising to find a semen stain with blood group substances consistent with the victim near the body of a sexual assault victim;

9. Whether the trial court should have declared a mistrial based on prosecutorial misconduct where the prosecutor (a) allegedly used defendant's criminal history improperly and (b) allegedly engaged in improper cross-examination;

10. Whether the trial court should have granted a directed verdict in favor of defendant;

11. Whether the trial court should have instructed the jury on lost or destroyed evidence (Willits instruction) because of the state's disposal of the taxicab and ten fingerprint cards;

12. Whether the trial court should have instructed the jury on termination of conspiracy;

13. Whether the trial court should have instructed the jury on unlawful imprisonment.

The sentencing issues are:

1. Whether the automatic establishment of an aggravating circumstance when an adult kills a child renders Arizona's death penalty statute unconstitutional;

2. Whether the trial court impermissibly counted or weighed the victim's age twice in finding aggravating circumstances;

3. Whether the murder was committed in a especially heinous, cruel, or depraved manner;

4. Whether the trial court failed to adequately consider and weigh all mitigating circumstances;

5. Whether the trial court should have separately found that defendant killed, intended to kill, or attempted to kill the victim (Enmund/Tison finding);

6. Whether the trial court should have considered the giving of a felony murder instruction as a mitigating circumstance;

7. Whether the testimony of the victim's survivors at sentencing violated defendant's constitutional rights;

8. Whether defendant's sentence of death is disproportionate.


In addition to the foregoing issues, defendant raises several issues that he did not raise in the trial court. On appeal we will consider a matter not raised below only if it is a matter of fundamental error. See State v. Cornell, 179 Ariz. 314, 328-29, 878 P.2d 1352, 1366-67 (1994); State v. Ramirez, 178 Ariz. 116, 126, 871 P.2d 237, 247, cert. denied, --- U.S. ----, 115 S.Ct. 435, 130 L.Ed.2d 347 (1994). This waiver principle applies to alleged constitutional issues, as well as to nonconstitutional issues. State v. Bible, 175 Ariz. 549, 572, 858 P.2d 1152, 1175 (1993), cert. denied, --- U.S. ----, 114 S.Ct. 1578, 128 L.Ed.2d 221 (1994); State v. Holder, 155 Ariz. 83, 85, 745 P.2d 141, 143 (1987);

[182 Ariz. 298] State v. Magallanes, 110 Ariz. 235, 236, 517 P.2d 505, 506 (1973)

In our review of this case, we have concluded that none of the waived issues presents fundamental error. See State v. Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628 (1991) (defining fundamental error as "error of such dimensions that it cannot be said it is possible for a defendant to have had a fair trial") (citations omitted). Therefore, we do not deal further with the issues raised for the first time on appeal, which are listed in Appendix A.

Defendant also raises several issues for which he offers argument insufficient for appellate review. Failure to argue a claim on appeal constitutes waiver of that claim. State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989); see also Ariz.R.Crim.P. 31.13(c)(1) (appellant's brief shall include a concise argument containing the party's contentions, reasons therefor, and necessary supporting citations). Defendant argues that the state may not now complain about his insufficient argument because the state objected to defendant's first, oversize opening brief. The state, defendant argues, caused the defendant's cursory arguments by invoking this court's eighty-page limit on opening briefs in capital cases. See Ariz.R.Crim.P. 31.13(f)(2). We reject defendant's argument.

Defendant could very well have complied with our rules in the first instance, and the state would have had no occasion to object. We strongly disapprove of defendant's attempt to create legal issues out of his own failure to cooperate with this court in reviewing his case. We have reviewed each of the issues, which are listed and discussed briefly in Appendix B, and have found no fundamental error. All are procedurally defaulted pursuant to Rule 31.13(c), Ariz.R.Crim.P.

Finally, defendant attached to his second opening brief thirty-one pages of additional argument contained in "appendices." The rules prohibit this practice. See Ariz.R.Crim.P. 31.13(c)(4) (limiting contents of...

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