State v. Carlson

• Decision Date: 27 June 2002
• Docket Number: No. CR-00-0161-AP.,CR-00-0161-AP.
• Parties: STATE of Arizona, Appellee, v. Doris CARLSON, Appellant.
• Court: Arizona Supreme Court

48 P.3d 1180

202 Ariz. 570

STATE of Arizona, Appellee, v. Doris CARLSON, Appellant.

No. CR-00-0161-AP.

Supreme Court of Arizona, En Banc.

June 27, 2002.

Janet A. Napolitano, Attorney General by Kent E. Cattani, Chief Counsel Capital Litigation Section and Jim D. Nielsen, Assistant Attorney General, Phoenix, Attorneys for State of Arizona.

James J. Haas, Maricopa County Public Defender by Garrett W. Simpson, Deputy Public Defender, Carol A. Carrigan, Deputy Public Defender, Phoenix, Attorneys for Doris Carlson.

OPINION WITH AMENDED DISSENT

FELDMAN, Justice.

¶ 1 On July 27, 1999, a jury found Doris Ann Carlson (Defendant) guilty of first-degree murder, conspiracy to commit first-degree murder, and first-degree burglary. She was sentenced to death on the murder charge, life imprisonment without the possibility of parole for twenty-five years on the conspiracy count, and an aggravated term of twenty-one years for the burglary. All sentences were concurrent. Because the trial judge sentenced Defendant to death for the murder, direct appeal to this court is automatic. A.R.S. § 13-703.01. We have jurisdiction pursuant to Arizona Constitution article VI, § 5(3), A.R.S. § 13-4031, and Rule 31.2(b), Arizona Rules of Criminal Procedure.

FACTS AND PROCEDURAL HISTORY

¶ 2 In 1996, Defendant and her husband, codefendant David Carlson (David), were living in a house in Peoria, Arizona, that they shared with David's mother, the victim in this case, Mary Lynne Carlson (Lynne). Defendant and David were financially dependent on Lynne. Lynne received about $850 each month from a trust fund valued at several hundred thousand dollars. In addition, she had two annuities, with a combined value of approximately $140,000. Lynne received roughly $800 per month from the first annuity and was allowed to draw on the principal from the second. David, as Lynne's only child, was the beneficiary of the trust and both annuities.

¶ 3 When Defendant and David moved from Illinois to Arizona several years earlier, Lynne withdrew $70,000 from her second annuity and bought the Peoria house to accommodate all of them. Defendant and David depended on Lynne's trust and annuities to pay their living expenses. Lynne had multiple sclerosis, was confined to a wheelchair, and had trouble controlling her bodily functions. Defendant was very impatient with Lynne, claimed she was only pretending to have multiple sclerosis, and yelled and cursed at her. Several times a week, Defendant would suggest that Lynne should be killed so that she and David could get Lynne's money.

¶ 4 Because Lynne needed more care than David and Defendant could give her at home, she moved into a residential care facility in July 1996. The trust then stopped paying the utility bills and had them redirected to the home address. Lynne's trust fund and annuity checks also stopped coming to the house, leaving Defendant and David broke.

¶ 5 In late September or early October 1996, Defendant approached their twenty-year-old boarder, John Daniel McReaken (Dan), and asked him if he knew anybody who wanted to make $20,000 by killing Lynne. Dan accepted Defendant's offer. Another boarder, seventeen-year-old Scott Smith (Scott), offered to help Dan, and Dan agreed to give Scott half of the $20,000. ¶ 6 Defendant gave Dan money to buy gloves to use when killing Lynne. Dan and Scott already had the weapons, each having his own butterfly knife. Several days later, Defendant drove Dan and Scott to Lynne's residential care facility because she wanted them to locate Lynne's apartment and familiarize themselves with the area around it together with the different ways into and out of the facility.

¶ 7 On October 23, 1996, Defendant and David went to see Lynne and asked her to sign annuity documents in order to get money to help pay the mortgage so they would not lose the house. Lynne refused to sign without first consulting her financial advisor, which made Defendant angry. The next evening, October 24, Defendant told Dan that Lynne needed to be killed really soon, and Dan relayed the message to Scott. When Scott got home from work that evening, he and Dan dressed in black and got their gloves and knives. Defendant gave them a key to Lynne's apartment and offered to drive them there.

¶ 8 Sometime after 1:00 a.m. on October 25, Defendant drove Dan and Scott to a supermarket near Lynne's care facility and told them she would wait for them there. Once in Lynne's apartment, Scott stayed in the living room, where he disconnected the television and moved the items from its top to make it appear there had been a burglary. Dan, meanwhile, went into the bedroom, and after hesitating, closed his eyes and stabbed Lynne eight to ten times. Dan later told Scott that he had stabbed Lynne in her throat and upper body and that she should die. When they returned to the car, Defendant asked whether they had done it, and Scott replied that they had. Defendant then drove them back to the house.

¶ 9 About 5:00 that same morning, a nursing assistant went to Lynne's apartment to make her regular check. As she was unlocking the door, Lynne called out the assistant's name and yelled at her for help, telling her she had fought "them" off as hard as she could. Lynne underwent several operations, but she never recovered from the knife attack and died on April 21, 1997.

¶ 10 Defendant, David, Dan, and Scott were arrested on November 21, 1996, less than a month after the attack. Following Lynne's death, they were charged with her murder. Based on the foregoing evidence, a jury found Defendant guilty of first-degree murder. As required by statute, the trial judge conducted a special sentencing hearing. A.R.S. § 13-703(B).¹ Under the Arizona system, this hearing is conducted without a jury—the judge makes the factual findings that determine whether a defendant is to be sentenced to life imprisonment or death. Id. In Defendant's aggravation/mitigation hearing, the judge determined that the state had proven three aggravating factors beyond a reasonable doubt: Defendant procured Lynne's murder by promise of payment of something of pecuniary value, namely $20,000, A.R.S. § 13-703(F)(4); Lynne's murder was committed in expectation of Defendant's pecuniary gain, A.R.S. § 13-703(F)(5); and Lynne's murder was committed in an especially heinous, cruel, or depraved manner, A.R.S. § 13-703(F)(6). The judge found one statutory mitigating circumstance, duress, A.R.S. § 13-703(G)(2); and two non-statutory mitigating circumstances—no prior criminal history and brain damage. The judge then determined that the mitigating evidence, when weighed against the aggravating evidence, was insufficient to call for leniency and sentenced Defendant to death.

DISCUSSION

A. Trial issue—jury selection

¶ 11 Defendant called no witnesses at trial. The only trial issue raised on appeal is whether the trial judge should have granted Defendant's motion to strike all members of the jury because of their knowledge of—and discussion about—adverse publicity concerning Defendant's trial counsel. ¶ 12 Defendant contends that the judge abused his discretion when he denied her motion to strike the entire jury panel after it became clear the panelists had been infected by "lurid" publicity concerning defense counsel's public sexual conduct with a defendant she represented in a previous murder case.

1. Jury selection—background

¶ 13 Defendant was represented by Carmen Fischer (Fischer), who had been the subject of extensive publicity concerning her romantic and possible sexual relationship with a prior client in the high-profile "bounty hunter" murder case. There was widespread publicity in the media, up to and including the day before jury selection in the present case. Among other things, it was alleged both in newspapers and on television that Fischer had sexual contact with her client in a lawyer's visiting room at the Maricopa County Jail. On television, Fischer could be seen kissing her client. This publicity, however, contained no reference to Defendant or her pending case.

¶ 14 At the beginning of jury selection, the judge asked if the state and Defendant were ready, and the lawyers, including Fischer, identified themselves to the court. At this point, before the panelists were sworn and before the lawyers were formally introduced to them, several of the panelists recognized Fischer, although none mentioned it at the time. Immediately following this, the panelists were sworn and there was a recess for lunch. During this recess, there was at least one conversation about Fischer between several of the venire members.

¶ 15 After the recess, in the course of voir dire, Fischer asked whether any of the panelists had seen anything in the newspapers or on television about anyone involved in the trial. Eleven of the panelists, including those involved in the lunchtime conversation, raised their hands. There was then another recess, and these eleven plus two others who later identified themselves were questioned in chambers about the extent of their exposure to the publicity surrounding Fischer and how it might affect their impartiality in this case. Seven of the thirteen panelists indicated that what they had seen or heard of the allegations did not lead them to form a negative opinion of Defendant's attorney. Three potential jurors indicated that reports of the relationship between Defendant's attorney and one of her clients led them to form a negative opinion concerning the attorney, but they would be able to put aside their feelings and serve impartially. Three others indicated that their negative opinion of Defendant's attorney either would not, or might not, allow them to serve impartially. These three were discharged for cause by the judge.

¶ 16 After the first nine prospective jurors had been questioned in chambers, Fischer reminded the judge that none of the panelists had been ordered to refrain from discussing this matter with other panel memb...