State v. Bracy

• Decision Date: 10 June 1985
• Docket Number: No. 5809,5809
• Citation: 703 P.2d 464,145 Ariz. 520
• Parties: STATE of Arizona, Appellee, v. William BRACY, Appellant.
• Court: Arizona Supreme Court

Page 464

703 P.2d 464

145 Ariz. 520

STATE of Arizona, Appellee, v.William BRACY, Appellant.

No. 5809.

Supreme Court of Arizona, In Banc.

June 10, 1985.

J. Douglas McVay, Phoenix, for appellant.

GORDON, Vice Chief Justice:

On December 24, 1982 a jury found defendant, William Bracy, ¹ guilty of one count of conspiracy to commit first degree murder, two counts of first degree murder, one count of attempted first degree murder, three counts of kidnapping, three counts of armed robbery, and one count of first degree burglary.

Defendant was subsequently sentenced to death for each count of first degree murder, to life imprisonment for conspiracy to commit first degree murder, and to approximately 140 years for the other crimes.This Court has jurisdiction under Ariz. Const. art. 6, § 5(3)andA.R.S. § 13-4031.We affirm the convictions and sentences.

The facts, viewed in the light most favorable to upholding the verdict, show that Pat Redmond and Ron Lukezic were partners in a successful printing business called Graphic Dimensions.In the summer of 1980, Graphic Dimensions was presented with the possibility of some lucrative printing contracts with certain hotels in Las Vegas.These deals fell through, however, when Pat Redmond and perhaps Ron Lukezic vetoed the idea.

In September of 1980, Robert Cruz asked Arnold Merrill if he would kill Pat Redmond for $10,000.Merrill declined.Cruz wanted Redmond killed in order to get Redmond's interest in Graphic Dimensions.Cruz ultimately planned to have Ron Lukezic killed as well and take complete control of Graphic Dimensions.In early December of 1980, Cruz and Merrill went to the Phoenix Airport and picked up defendant and Murray Hooper who arrived on a flight from Chicago.Cruz and Merrill then took defendant and Hooper to a hotel in Scottsdale, and Cruz gave defendant a key to one of the rooms.Defendant and Hooper stayed in the Valley for several days, during which time Merrill drove the two men to various locations.On one occasion, Merrill took defendant and Hooper to see Cruz, and Cruz gave defendant a stack of $100 bills, some of which defendant gave to Hooper.That same day Merrill, at Cruz's direction, took defendant and Hooper to a gun store owned by Merrill's brother, Ray Kleinfeld.Hooper picked out a large knife and defendant told Kleinfeld to put it on Cruz's account.Kleinfeld gave defendant a paper bag containing three pistols.Defendant, Hooper, and Merrill subsequently drove to the desert, where defendant took target practice with the guns while Hooper rested in the back of Merrill's car.Defendant and Hooper later moved from the hotel into Merrill's house, where they met Ed McCall.

A few days later, defendant, Hooper, and Merrill followed Pat Redmond's car as Redmond left a bar.When they neared Redmond's car, Hooper attempted to shoot Redmond.The attempt failed, however, when Merrill, who was driving, intentionally swerved the car.Cruz, defendant, and Hooper were upset at Merrill for his actions.After the failed attempt, defendant and Hooper moved out of Merrill's home and into the apartment of Valinda Lee Harper and Nina Marie Louie, two women Merrill had introduced to defendant and Hooper.On December 8, 1980, McCall told Merrill he was "joining up" with defendant and Hooper.Defendant and Hooper returned to Chicago shortly thereafter.

Defendant and Hooper returned to Phoenix on December 30, 1980.On the evening of December 31, 1980defendant, Hooper, and McCall went to the Redmond home and forced their way in at gunpoint.Pat Redmond, his wife Marilyn, and Marilyn Redmond's mother, Helen Phelps, were present.Defendant, Hooper, and McCall eventually herded the Redmonds and Mrs. Phelps into the master bedroom where they bound, gagged, and robbed them.After forcing the Redmonds and Mrs. Phelps to lie face down on the bed, one or all of the intruders shot each victim in the head.One of the intruders also slashed Pat Redmond's throat.Pat Redmond and Mrs. Phelps died from their wounds, but Marilyn Redmond lived.

Defendant was tried with Hooper.Marilyn Redmond provided the most damning evidence against defendant, stating that he and Hooper, along with McCall, forcibly entered her home and committed the murders.Arnold Merrill and several other witnesses tied defendant and Hooper to the conspiracy to kill Pat Redmond.Although admitting they were in Phoenix in early December, the defendant and Hooper maintained they had no part in the plot to kill Pat Redmond.Rather, they contended that Arnold Merrill and other local criminals, as part of a robbery ring, framed both defendant and Hooper for the murders which probably resulted from a robbery attempt.Defendant and Hooper also maintained that Mrs. Redmond misidentified them and that they were in Chicago on New Year's Eve of 1980.

Defendant raises a number of issues.

I.PROSECUTORIAL MISCONDUCT

Defendant alleges that prosecutors Joseph L. Brownlee and Michael D. Jones, as well as their chief investigator Dan Ryan, ² engaged in continuous misconduct denying defendant his right to a fair trial.The alleged instances of misconduct involve prosecutorial nondisclosure of evidence and misconduct exclusive of nondisclosure of evidence.

A.Misconduct Exclusive of Failure to Disclose Evidence

Having reviewed the alleged instances of prosecutorial misconduct, we discuss the following, examining whether misconduct occurred.

First, in opening statement, the prosecutor stated that Nina Marie Louie made positive pretrial identifications of both defendant and Hooper.The trial judge, however, had not yet decided whether those pretrial identifications were admissible, and he later ruled them inadmissible.Though allowing Louie to make in-court identifications of both defendant and Hooper, the trial court instructed the jurors to disregard the prosecutor's remarks concerning the pretrial identifications.As the trial court had not yet decided whether the pretrial identifications were admissible, the prosecutor's statements were baseless and improper.

Defendant next alleges misconduct in prosecutorJoseph L. Brownlee's appearance in the November 1982 issue of Phoenix Magazine.³On September 28, 1982 Mr. Brownlee and all other lawyers in this case agreed with the trial judge not to contact the media.Prior to this agreement, Brownlee voluntarily interviewed with a Phoenix Magazine reporter who desired a story on Brownlee and the Redmond murders.Brownlee discussed, among other things, where he was and what he was doing New Year's Eve of 1980 when he heard about the murders, how he then spent the entire night and part of the next day investigating the murders, how inspirational Mrs. Redmond had been, his philosophy of prosecuting, and his favorite past case.After the September 28th agreement, Brownlee posed for photos to accompany the article.

Even assuming the parties had not agreed to contact the media, Mr. Brownlee's actions were improper as a transgression of rules relating to trial publicity.SeeRule 29(a), DR 7-107, Ariz.R.S.Ct. in effect at the time of the trial.In addition, by posing for photos to accompany the article after having agreed not to contact the media, Mr. Brownlee blatantly violated an agreement with the trial court.SeeDR1-102(A)(4), (5);DR7-106(B)(6).Mr. Brownlee's behavior was improper.

Defendant next alleges that county attorney investigator Dan Ryan allowed Arnold Merrill to go free of custody in violation of Maricopa County Jail regulations to visit his wife for sexual relations.The record at least reveals that Dan Ryan took Arnold Merrill out of jail to privately visit his wife.This action was certainly improper.

1) Prejudice resulting from misconduct

We now examine the prejudice resulting from the above three instances of misconduct.We will reverse a conviction only where the defendant has been denied a fair trial as a result of prosecutorial misconduct.State v. Hallman, 137 Ariz. 31, 668 P.2d 874(1983);State v. Moore, 108 Ariz. 215, 495 P.2d 445(1972).A defendant is denied a fair trial because of prosecutorial misconduct if there exists a reasonable likelihood that the misconduct could have affected the jury's verdict.SeeState v. Tuzon, 118 Ariz. 205, 575 P.2d 1231(1978).Whether a reasonable likelihood exists that the misconduct could have affected the jury's verdict is left to the sound discretion of the trial court.State v. Gonzales, 105 Ariz. 434, 466 P.2d 388(1970).⁴

We do not believe a reasonable likelihood exists that the misconduct affected the verdict.No prejudice resulted to defendant from Mr. Brownlee's improper opening statements concerning pretrial identification.The trial court prohibited Nina Marie Louie from testifying regarding the pretrial identifications.Immediately after allowing Louie to identify defendant in court, the trial court instructed the jury to disregard the prosecutor's statement regarding the pretrial identification.The trial court's curative instruction, therefore, nullified any prejudice defendant suffered from the prosecutor's improper statement.SeeState v. Means, 115 Ariz. 502, 566 P.2d 303(1977)(in light of trial court's curative instruction, trial court did not abuse discretion in refusing to order new trial because of prosecutor's improper closing argument).

Though we are disturbed by Mr. Brownlee's misconduct regarding trial publicity, we cannot say any prejudice resulted.After the article surfaced, the trial judge questioned all the jurors, determining that none of them had read it.In addition, the trial court ordered the jurors not to read the issue of the magazine in which the article appeared.

As to Dan Ryan's letting Arnold Merrill out of jail to privately visit his wife, we cannot say it caused prejudice to defendant.The defense brought the information to the jury's attention for the jury to use in judging Merrill's and Ryan's credibility.We find no abuse of discretion.

B....