State v. Comer, CR-88-0136-AP

CourtSupreme Court of Arizona
Writing for the CourtGORDON; CORCORAN
Citation799 P.2d 333,165 Ariz. 413
PartiesSTATE of Arizona, Appellee, v. Robert Charles COMER, Appellant.
Docket NumberNo. CR-88-0136-AP,CR-88-0136-AP
Decision Date31 July 1990

Page 333

799 P.2d 333
165 Ariz. 413
STATE of Arizona, Appellee,
Robert Charles COMER, Appellant.
No. CR-88-0136-AP.
Supreme Court of Arizona, In Banc.
July 31, 1990.
Reconsideration Denied Nov. 14, 1990.

Page 335

[165 Ariz. 415] Robert K. Corbin, Atty. Gen., Jessica Gifford Funkhouser, Chief Counsel, Crim. Div.

Page 336

[165 Ariz. 416] by Janet Keating, Asst. Atty. Gen., Phoenix, for appellee.

John M. Antieau, Phoenix, for appellant.


JOE W. CONTRERAS, Court of Appeals Judge.


Following a jury trial, appellant Robert Charles Comer was convicted of 1 count of first degree murder, 3 counts of armed robbery, 2 counts of aggravated assault, 2 counts of kidnapping, 2 counts of sexual abuse and 3 counts of sexual assault. Appellant was sentenced to death for the murder and to aggravated, consecutive terms of imprisonment on the remaining counts, resulting in a sentence of imprisonment totaling 339 years. The murder conviction and sentence of death are here on automatic appeal, Arizona Rules of Criminal Procedure 31.2(b). We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and A.R.S. §§ 13-4031 and -4033.


Appellant raises the following issues for our review:

1) Whether the trial court erred by refusing to sever the Pritchard charges from the Jane Jones/Richard Smith charges. 1

2) Whether the trial court erred by denying appellant's motion for judgment of acquittal on the armed robbery and felony murder charges.

3) Whether the jury instruction on robbery constituted fundamental error.

4) Whether the trial court erred by failing to instruct the jury on reckless second degree murder, manslaughter, and negligent homicide.

5) Whether the trial court erred by denying appellant's motion to dismiss counts XII (sexual abuse) and XIII (sexual assault) for lack of venue.

6) Whether the trial court erred by refusing to strike two jurors for cause because of their exposure to pretrial publicity.

7) Whether the prosecutor engaged in misconduct in his closing argument.

8) Whether Arizona's death penalty sentencing scheme is unconstitutional.

9) Whether the trial court erred by finding as aggravating circumstances that the murder was committed for pecuniary gain and in an especially heinous and depraved manner.

10) Whether the enhanced sentences on Counts III-XI were based on invalid prior convictions.


In mid-January, 1987, appellant, Robert Comer, his companion, Juneva Willis, and Willis' two children left Sacramento, California, with less than $500.00. They traveled through several states before arriving at the Burnt Corral campground at Apache Lake on February 2, 1987. When the couple arrived at the campground, they had no money.

The following evening appellant invited Larry Pritchard, who was camping nearby, to dinner at appellant's campsite. Pritchard was a large man who, because of a physical disability, stood, sat and walked with considerable difficulty. After dinner, appellant told Juvena Willis, "I'm going to blow him [Pritchard] away." At approximately 9:00 p.m., appellant shot Pritchard in the head with a .38 revolver. Following the shooting, appellant forced Willis to look at the body and said, "See what I've done, I'm a cold and callous killer." It was unclear whether Pritchard died immediately from the gunshot wound. Later, appellant stabbed Pritchard in the neck.

Page 337

[165 Ariz. 417] Nearby campers, including the camp host Marquis Boltz, heard the gunshot. Within ten minutes after the shooting, Boltz went to the campsite and issued a citation to appellant for discharging a firearm in the campgrounds. Appellant admitted to Boltz that he fired the gun but Boltz was unaware that appellant shot and then stabbed Pritchard.

Before leaving the campsite, appellant went through Pritchard's pockets and took Pritchard's Emergency Medical Technician (EMT) badge. Willis hid the body by covering it with wood. Appellant and Willis then packed up their camp gear and drove to Pritchard's campsite. Appellant took a camera, fishing equipment, maps, a hunting knife belonging to Pritchard and Pritchard's beagle puppy. He attempted to take gasoline from Pritchard's car, but the tank was empty. Appellant also searched for money, but found none. Appellant then drove off "to think". After parking and thinking for about an hour, appellant and Willis drove to the Jones/Smith campsite.

Earlier that day, appellant had met Jane Jones and Richard Smith who were also camping in the area. Appellant knew that they had a small amount of marijuana. Posing as "Arizona Drug Enforcement" officers, appellant and Willis ordered Jones and Smith at gunpoint to come out of their tent and lie on the ground. Appellant briefly flashed Pritchard's EMT badge to substantiate his story that he was on official police business and asked them where they kept the marijuana. Appellant "arrested" the couple and bound them with wire and duct tape. He then searched their tent and took some marijuana, a small sum of money and other personal items.

Appellant placed the couple in their truck and drove away. Willis followed in appellant's truck. After driving a short time, appellant stopped, spoke to Willis, and continued driving. Willis did not follow. Later, Jane Jones asked appellant to stop so she could relieve herself. Appellant stopped, cut the tape binding Jones' feet and took her into the woods. After Jones relieved herself, appellant sexually abused her. When appellant and Jones returned to the truck, appellant tied Smith to the front bumper of the truck and laid Jones next to Smith. Appellant then forced Jones to engage in oral sexual contact and then proceeded to have vaginal sexual intercourse with her.

After the assaults, appellant threatened to kill Smith, but Jones talked him out of it. Appellant left Smith bound in the woods and drove off with Jones in the couple's truck. Shortly thereafter, when the truck became stuck in a ditch, appellant abandoned the vehicle, and he and Jones walked back to appellant's truck where Willis was waiting.

Appellant drove his truck through the night with Willis, Jones and the two children and eventually ended up on El Oso Mine Road in Gila County. At one point, appellant stopped the truck, pulled Pritchard's dog out of the truck, and shot and killed it. He then warned Jones that he would shoot her if she tried to escape. Appellant continued driving on El Oso Mine Road until he stopped a second time. At a second stop, appellant placed a sleeping bag on the ground and sexually abused Jones by pulling hard on her genitals.

Appellant continued driving and stopped a third time when the truck ran out of gas. He directed Willis and the children to remove the camping gear from the truck. He then took Jones into the woods and engaged in sexual intercourse with her. Meanwhile, Smith freed himself, walked back to the Burnt Corral campground and subsequently reported the incident to the Department of Public Safety.

Jones managed to run away while appellant was busy with the truck. On the morning of February 5th, she was picked up on the highway by a passing motorist and taken to the sheriff's office. Appellant and Willis were apprehended that afternoon without incident. The police found Pritchard's EMT badge buried in the sand and appellant's .38 revolver at the scene of the arrests.

Appellant and Willis were charged in Maricopa County with first degree murder and armed robbery of Pritchard and armed robbery, kidnapping and aggravated as [165 Ariz. 418] sault

Page 338

of Jones and Smith. In addition, appellant was charged with two counts of sexual abuse and three counts of sexual assault of Jones. The case against Willis was remanded to the grand jury for a redetermination of probable cause. The second indictment did not charge Willis with the murder of Pritchard. Willis subsequently pled guilty to one count of kidnapping, a dangerous offense. As part of the plea agreement she agreed to testify against appellant. The other charges against Willis were dismissed.

The jury found appellant guilty on all counts. Appellant was sentenced to death for the murder of Pritchard and to aggravated, consecutive terms of imprisonment for the other offenses. The trial judge found as aggravating circumstances for imposing the death penalty that appellant previously had been convicted of two felonies involving the use or threat of violence, that the murder for which he stood convicted was committed in expectation of pecuniary gain and that it was committed in an especially heinous and depraved manner. The trial judge found no mitigating circumstances.


Appellant argues that the trial court erred by failing to grant his motion to sever the trial of the Pritchard counts (Counts I and II) from trial of the Jones/Smith counts (Counts III-XIII). Appellant asserts that Counts I and II were not properly joined with Counts III through XIII because the Pritchard offenses and the Jones/Smith offenses were not connected in their commission or as part of a common scheme or plan.

To succeed on his argument, appellant must show a clear abuse of discretion with respect to the trial court's decision to deny the motion to sever offenses. State v. Day, 148 Ariz. 490, 493, 715 P.2d 743, 746 (1986); State v. Roper, 140 Ariz. 459, 461, 682 P.2d 464, 466 (App.1984). Offenses may be joined if they: (1) are of the same or similar character; (2) are based on the same conduct or are otherwise connected together in their commission; or (3) are alleged to have been a part of a common scheme or plan. Rule 13.3(a), Ariz.R.Crim.P., 17 A.R.S. We have permitted joinder of offenses in a single trial where the offenses arose out of a series of connected acts, and the offenses were provable by much the same evidence. See State v. Martinez-Villareal, 145 Ariz. 441, 446, 702 P.2d 670, 675, cert. denied, 474 U.S. 975, 106 S.Ct. 339, 88 L.Ed.2d 324 (1985) (where the evidence of the...

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