State v. Cornell

• Citation: 878 P.2d 1352,179 Ariz. 314
• Decision Date: 02 August 1994
• Docket Number: No. CR-91-0072-AP,CR-91-0072-AP
• Parties: The STATE of Arizona, Appellee, v. Joe D. CORNELL, Appellant.
• Court: Supreme Court of Arizona

Page 1352

878 P.2d 1352

179 Ariz. 314

The STATE of Arizona, Appellee, v. Joe D. CORNELL, Appellant.

No. CR-91-0072-AP.

Supreme Court of Arizona, In Banc.

Aug. 2, 1994.

[179 Ariz. 318] Grant Woods, Atty. Gen. by Paul J. McMurdie, Jon G. Anderson, Phoenix, for appellee.

Neal W. Bassett, Phoenix, for appellant.

OPINION

FELDMAN, Chief Justice.

In November 1990, a Maricopa County jury convicted Defendant Joe D. Cornell of first degree murder, attempted first degree murder, aggravated assault, and first degree burglary. The court sentenced him to death on the murder conviction and imprisonment on the remaining counts. Defendant filed a timely notice of appeal. This court has jurisdiction of the appeal pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. §§ 13-4031 and 13-4033(A).

FACTS AND PROCEDURAL HISTORY

Defendant killed Margaret Daphne Dad ("Daphne") and wounded her father, Victor Dad ("Victor"), at the Arizona Department of Transportation ("ADOT") building in Phoenix on December 8, 1989. For several years before that time, Defendant and Daphne had maintained an "on and off" relationship and had a child together. At some point, Daphne attempted to break off the relationship and began seeing another man. Defendant refused to accept this and harassed Daphne by making hundreds of telephone calls to her home and her two places of employment. He threatened at least once to kill her if she did not answer his calls. A few days before the shootings, Defendant followed Daphne and her new boyfriend out of the ADOT building and started an altercation. This incident resulted in an aggravated assault conviction against Defendant, which is discussed in more detail in § II(C) below.

On December 8, 1989, shortly after 8:00 a.m., Victor drove Daphne to her job at the ADOT building. Defendant's daughter was also in the truck. On the way, Victor saw a truck driven by Defendant stopped at a stop sign. Victor recognized the truck as one belonging to Defendant's brother. Defendant quickly pulled into traffic behind Victor and Daphne, caught up to them, and followed close behind. Victor tried to elude Defendant by driving erratically but was unsuccessful.

When they arrived at the ADOT building, Victor pulled directly in front of the door and let Daphne out. As Daphne made her way to the building, Victor left his truck and approached Defendant. Defendant got out of his truck. After seeing Victor approach, Defendant produced a pistol, assumed a "shooter's stance," and opened fire. One shot hit Victor in the arm as he tried to take cover behind his truck, in which his granddaughter was still sitting. Another bullet hit a window next to the door through which Daphne had just passed into the building.

Leaving Victor disabled, Defendant followed Daphne into the building. Daphne ran into an office area in which several of her coworkers were present, but for some reason she fell to the floor. Defendant reached the spot where Daphne lay and stood above her. At this point there appears to have been an exchange of words, in which Daphne said "damn you," and Defendant called Daphne a "bitch." Defendant then fired his pistol at least three times, but only one of these shots hit Daphne. She died from this wound shortly thereafter.

Defendant then fled the building. In so doing, he threatened one or more people with the gun so that they would not interfere with his escape. After leaving the building, Defendant returned to the truck and drove away. Some time later, he placed a call to his sister, and during the conversation they discussed the fact that Daphne had been killed. Later, Defendant drove to a Chandler church and sought counsel from the pastor. That afternoon, the pastor took Defendant to the Chandler police station, where Defendant voluntarily surrendered. Police found the murder weapon in his truck.

A Maricopa County grand jury indicted Defendant for first degree murder, attempted murder, three counts of aggravated assault, and one count of burglary. The State later amended the indictment, dropping one count of aggravated assault. The trial court appointed the public defender's office to represent Defendant, but before trial Defendant moved to represent himself. The court granted this motion but appointed a public defender to work with him as advisory counsel. The court also appointed an investigator and a paralegal to assist Defendant in preparing his case. Defendant's sole defense at trial was that he had suffered a form of

[179 Ariz. 320] temporary insanity during the shooting. The jury convicted Defendant of the first degree murder of Daphne, the attempted murder of Victor, and one count each of aggravated assault and first degree burglary, but acquitted Defendant on the second aggravated assault count. The judge sentenced Defendant to death for the murder, twenty-one years in prison for the attempted murder, fifteen years for the aggravated assault, and fifteen years for the burglary, with the prison terms to be served consecutively to each other and to the sentence on the murder count, as well as to the sentence on his previous aggravated assault conviction. The judge also ordered restitution to the victims. Defendant alleges that several errors occurred during his trial. We discuss each allegation in turn.

TRIAL AND APPEAL ISSUES

A. Reading the indictment to the jury

Defendant alleges that the trial court erred in having the clerk read the indictment to the jury at the beginning of the trial. The indictment in this case contained the following language: "The grand jurors of Maricopa County, Arizona, accuse Joe D. Cornell on this 15th day of December 1989, charging that in Maricopa County, Arizona...." Defendant argues that telling jurors another group of citizens has already determined that there is evidence to believe he is guilty tends to make the jurors less vigilant than they should be; therefore, his rights to due process and to an impartial jury under the United States and Arizona Constitutions were violated. We cannot agree.

Because Defendant failed to object to the reading of the indictment, he is precluded from arguing the issue now, absent fundamental error. Ariz.R.Evid. 103(a) and (d); State v. Bible, 175 Ariz. 549, 572, 858 P.2d 1152, 1175 (1993). It was not error, fundamental or otherwise, to read the indictment to the jury. Ariz.R.Crim.P. 19.1(a)(1), requires the clerk to read the indictment. Moreover, this court rejected a similar claim in State v. Amaya-Ruiz, 166 Ariz. 152, 174, 800 P.2d 1260, 1282 (1990), cert. denied, 500 U.S. 929, 111 S.Ct. 2044, 114 L.Ed.2d 129 (1991). In that case, the defendant argued that use of the words "true bill" and the grand jury foreperson's signature were prejudicial surplusage. This court affirmed the conviction, relying in part on United States v. Ramirez, 710 F.2d 535 (9th Cir.1983).

In Ramirez, as in the present case, the defendant complained about the jury hearing the phrase "the grand jury charges." Id. at 545. The Ramirez court rejected this argument because the trial court had instructed the jury that the indictment was not evidence against the accused and raised no inference of guilt or innocence. Here, similar instructions were given. We think this instruction sufficient to avoid any prejudice. Given the instruction, the reading of the indictment certainly did not violate Defendant's due process rights.

B. Court's refusal to pay for videotapes of television interviews with witnesses to the shooting

Shortly before trial was scheduled to begin, Defendant asked the court to authorize payment to several local television stations for news videotapes of witness interviews made just after the shootings. The court noted that the trial was imminent, and Defendant could have presented the request much earlier. The judge also said he believed Defendant could get the information in other ways, such as by sending out the investigator.

Defendant now argues that the court's failure to pay for the tapes deprived him of his rights to a fair trial and due process guaranteed by U.S. Const. amend. 5 and Ariz. Const. art. 2, §§ 4 and 24. He advances several reasons for the proposition that later interviews would not have been an acceptable substitute for the original interviews.

Because Defendant was indigent, the trial court had both a constitutional and statutory duty to provide him with certain essential tools of trial defense. United States v. Sims, 617 F.2d 1371, 1375 (9th Cir.1980); see also A.R.S. § 13-4013(B); Ake v. Oklahoma, 470 U.S. 68, 76-77, 105 S.Ct. 1087, 1092-93, 84 L.Ed.2d 53 (1985). However, an indigent defendant does not have an unlimited right to all items that he believes At the time Defendant made this request, there were other alternatives to paying for the tapes. One alternative was to obtain free copies. It is undisputed that one station had already provided its tape free of charge and that another station had agreed to make its tape available, hoping the court would later order payment. Only one channel said, "no payment, no tape." Had the free tapes revealed useful information, Defendant could then have made a convincing argument to the court regarding the need for the third tape. Another alternative was to conduct further investigation to at least determine what was on the tapes and then explain to the court why they would be useful.

[179 Ariz. 321] are necessary for his defense. State v. Yanich, 110 Ariz. 172, 176, 516 P.2d 308, 312 (1973). The decision to expend public monies to assist the defense rests within the trial court's sound discretion. State v. Clabourne, 142 Ariz. 335, 342, 690 P.2d 54, 61 (1984); State v. Knapp, 114 Ariz. 531, 540-41, 562 P.2d 704, 713-14 (1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1458, 55 L.Ed.2d 500 (1978). Whether a court's refusal to provide such funds is a violation of due process depends on whether there were good reasons for the requested expenditure. State v. Watson, 120 Ariz. 441, 451, 586 P.2d 1253,...