State v. Clabourne, 5807

• Decision Date: 31 October 1984
• Docket Number: No. 5807,5807
• Citation: 690 P.2d 54,142 Ariz. 335
• Parties: STATE of Arizona, Appellee, v. Scott Drake CLABOURNE, Appellant.
• Court: Arizona Supreme Court

Page 54

690 P.2d 54

142 Ariz. 335

STATE of Arizona, Appellee, v.Scott Drake CLABOURNE, Appellant.

No. 5807.

Supreme Court of Arizona In Banc.

Oct. 31, 1984.

Robert K. Corbin, Atty. Gen., by William J. Schafer III and Diane M. Ramsey, Asst. Attys.Gen., Phoenix, for appellee.

R. Lamar Couser, Tucson, for appellant.

CAMERON, Justice.

Defendant, Scott Drake Clabourne, was convicted by a jury on 23 November 1982 of first degree murder, A.R.S. § 13-1105, kidnapping, A.R.S. § 13-1304, and three counts of sexual assault, A.R.S. § 13-1406.The trial court entered a judgment of guilty on all counts and sentenced defendant to death for the murder, A.R.S. § 13-703; fourteen years for the kidnapping, §§ 13-701, -702; and fourteen years for each of the sexual assault charges, § 13-604(G)and§§ 13-701, -702, each to run concurrently with each other and with the kidnapping charge.Defendant's conviction was automatically appealed to this court.We have jurisdiction pursuant to Ariz. Const. Art. 6, § 5(3)andA.R.S. §§ 13-4031and13-4035.We affirm.

We must consider the following issues:

1.Should the defendant's confession have been suppressed?

2.Should the defendant have received additional pretrial psychiatric evaluations for the purpose of determining his sanity at the time he committed the crime?

3.Should the trial court have granted defendant's motion to suppress certain photographs as being gruesome and inflammatory?

4.Did the trial court properly refuse to strike four of the jurors for cause?

5.Was a statement made by one of the veniremen so inflammatory as to disqualify the entire panel?

6.Should the trial court have directed a verdict of not guilty?

7.Should the jury have been instructed as to the elements of murder in the second degree?

8.Was the trial court correct in granting defendant's request not to review the pre-sentence report and, if so, should the court have ordered a new report sua sponte?

9.Should the trial court have ordered a pre-sentence diagnostic evaluation and mental health examination to determine defendant's competence to be sentenced?

10.Should the trial court have granted defendant's request for a psychological evaluation for purposes of mitigation?

11.Is the Arizona death penalty constitutional?

12.Was the death penalty properly imposed?

The facts follow.On the evening of 18 September 1980, Laura Webster, a student at the University of Arizona, entered the Green Dolphin Bar with a friend.Shortly after arriving there, defendant, Scott Clabourne, and Larry Langston approached her.They talked with her for approximately twenty minutes after which all three left the bar.The next day, Ms. Webster's body was found near the Santa Cruz River.She was naked and wrapped in a bloody sheet.A blue and white bandanna was tied tightly around her neck.An autopsy revealed that the victim had been strangled and then stabbed twice in the chest.There was also evidence of oral, anal and vaginal intercourse just prior to death.

No arrests were made for over a year.In August of 1981, defendant's girlfriend, Shirley Martin, contacted Detective Luis Bustamonte.She informed the detective that defendant had told her that he had killed a woman he had met in a bar.He told her that he had gone there with two friends who had ordered him to kill her.Clabourne told Martin that his friends had forced him to ingest some drugs which caused him to lose control so that he was unable to resist their command.

On 12 October 1981 the Detective interviewed defendant at the Pima County Jail, where defendant was incarcerated on another charge.After receiving his Miranda warnings, defendant agreed to discuss the murder.He told the Detective that on the evening of 18 September 1980, he was asleep at the Salvation Army halfway house where he had been staying.Larry Langston and a man that Clabourne knew as Bob, later identified as Ed Carrico, woke him up and the three of them drove to the Green Dolphin Bar.There they met Laura Webster and convinced her to go to a cocaine party with them.They all left and began to drive around.Langston stopped the car, pulled the victim out and beat her.He threw her back into the car and they drove to where Langston had been staying.During this time Miss Webster began pleading with Clabourne to protect her.

Once inside the house, the men forced the victim to remove her clothes and serve them drinks.Langston continued to beat her and all three men raped her.Clabourne claimed that she consented to relations with him.A prison guard testified at the trial that he overheard the defendant state "Yeah.I raped her.She didn't want it but I know she liked it."They were inside the house for approximately six hours.

At the end of the evening, Langston told defendant to kill the woman.Clabourne maintained that he was in fear of his own life and wanted to let her escape but was scared Langston would kill him.He strangled her with a bandanna that he carried in his pocket.He then stated that Langston handed him a knife, he stabbed her twice and the three men wrapped her in a sheet and threw her in the Santa Cruz riverbed.It appeared from the autopsy, however, that she had been stabbed after she was wrapped in the sheet.

An information was filed on 15 October 1981.Defendant was found competent to stand trial by court-appointed psychiatrists Drs. John S. LaWall and Edward S. Gelardin.Because a defense of insanity was interposed, the two doctors also examined defendant concerning Clabourne's mental state at the time of the incident.Both men testified that defendant was legally sane at the time of the offense.Dr. Sanford Berlin, who had treated defendant during his adolescence for a number of mental problems, also testified.From his convictions and sentences, defendant appeals.

THE VOLUNTARINESS OF DEFENDANT'S CONFESSION

Prior to trial, defendant filed a motion to suppress his confession.He gave two reasons for the request.First, he alleged that he had made an involuntary waiver of his fifth and sixth amendment rights.Second, he argued that because he was represented by counsel on another matter, the detectives should neither have questioned him nor have accepted his waiver without his attorney present.The trial court rejected both arguments and allowed the confession to be admitted into evidence.Defendant now alleges that this was in error.

We deal with defendant's second argument first.Defendant is essentially asking the court to adopt the "New York" rule with respect to a waiver of counsel.According to that view, once a defendant has been assigned counsel, he cannot waive counsel's assistance without that attorney's presence.Additionally, if he has received an attorney on an unrelated charge, he still cannot be questioned nor may he waive counsel's assistance without that attorney being present.See, e.g., People v. Bartolomeo, 53 N.Y.2d 225, 440 N.Y.S.2d 894, 423 N.E.2d 371(1981).Therefore, defendant argues that because he was represented by counsel on another matter, the detectives should not have had any contact with him unless counsel was present.We have, however, refused to adopt that view, State v. Richmond, 114 Ariz. 186, 191, 560 P.2d 41, 46(1976), cert. denied, 433 U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1101(1977), and see no reason for changing our position.We reaffirm our holding that "law enforcement officers are not under a constitutional duty to contact a lawyer for the accused if he makes a voluntary waiver of that right."Id.

We turn, therefore, to the question of that waiver.In Arizona, confessions are prima facie involuntary and the state must show by a preponderance of the evidence that they were freely and voluntarily made.State v. Arnett, 119 Ariz. 38, 42, 579 P.2d 542, 546(1978).Defendant argues that he was taking heavy doses of the prescription drug Thorazine and had exhibited bizarre behavior indicative of mental illness.In light of this, he argues, the state could not sustain its burden of proof.We disagree.The test for voluntariness in cases where a defendant is under the influence of narcotics or has mental disabilities is whether these problems render him unable to understand the meaning of his statements.State v. Porter, 122 Ariz. 453, 595 P.2d 998(1979).We have listened to the taped confession and find no indication that defendant did not understand the meaning of his statements.He received his Miranda warnings and was given time to think about whether he wanted to waive his constitutional protections.Defendant stated that he understood his rights, and after a pause agreed to discuss the murder.He was responsive to all questions asked.He appeared to be coherent and aware of the import of his statements.There was sufficient evidence to indicate that defendant's waiver of his rights was intelligently, knowingly, and voluntarily made, and the court did not abuse its discretion in denying defendant's motion to suppress.

THE REQUEST FOR ADDITIONAL MEDICAL EXAMINATION

Pursuant to Rule 11.3,Arizona Rules of Criminal Procedure, 17 A.R.S., the trial court appointed two psychiatrists, Dr. LaWall and Dr. Gelardin, for the purposes of determining defendant's competence to stand trial and his state of mind at the time of the offense.Defendant was dissatisfied with the examinations conducted by the two court appointed psychiatrists and requested that additional psychiatrists be appointed.The trial court denied the request and defendant now appeals that denial claiming it prejudiced his ability to conduct his insanity defense.

Defendant points to Rule 11.3(f)andA.R.S. § 13-4013(B), which authorize a court to appoint additional experts.Rule 11.3(f) states:

The court may, in its discretion, appoint additional experts and order the defendant to submit to physical, neurological or psychological examinations, when advised, by an appointed expert that such examinations are necessary to an adequate...