State v. Correll
| Decision Date | 28 January 1986 |
| Docket Number | No. 6437,6437 |
| Citation | 148 Ariz. 468,715 P.2d 721 |
| Parties | , 66 A.L.R.4th 383 STATE of Arizona, Appellee, v. Michael Emerson CORRELL, Appellant. |
| Court | Arizona Supreme Court |
Robert K. Corbin, Atty. Gen. by William J. Schafer III and Diane Hienton, Asst. Attys. Gen., Phoenix, for appellee.
Wisdom, Logan & McNulty by James Logan, Phoenix, for appellant.
Defendant was convicted of three counts of first degree murder, A.R.S. § 13-1105, one count of attempted first degree murder, A.R.S. §§ 13-1001, -1105, four counts of kidnapping, A.R.S. § 13-1304, one count of armed robbery, A.R.S. § 13-1904, and one count of first degree burglary, A.R.S. § 13-1508. Defendant was sentenced to death on each of the murder counts; life imprisonment on the other counts. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. §§ 13-4031, -4035.
The defendant presents several issues for review:
A. Pretrial
1. Was defendant's right to confrontation denied by the procedure followed in disposing of the Rule 11 motion?
2. Did the trial court err in refusing to preclude mention of defendant's alias?
3. Did the trial court err in allowing the state to impeach defendant with prior felony convictions?
B. Trial
1. Did the trial court err in admitting photographs of the victims?
2. Did the trial court err in denying defendant's motion for mistrial which was based on a witness' inadvertent mention of inadmissible evidence?
C. Sentencing
1. Did the trial court err in making its Enmund finding?
2. Did the trial court err in finding the aggravating circumstances of A.R.S. § 13-703(F)(2), (5), (6)?
3. Was the application of A.R.S. § 13-703(F)(8) ex post facto?
4. Did the trial court err in concluding that no mitigating factors existed?
5. Was the special verdict impermissibly vague?
6. Is Arizona's death penalty statute unconstitutional?
The facts follow. On the night of 11 April 1984, as Guy Snelling and his girlfriend, Debra Rosen, were getting ready to Snelling let the two men into the mobile home. Shortly thereafter, Nabors pulled out a gun and demanded money. Debra was ordered out of the bedroom, and defendant secured both Debra's and Guy's hands behind their backs with duct tape. Debra was then taken into another bedroom.
go to sleep, a knock came at the door of his mobile home. Snelling answered the door, and it was John Nabors, a co-worker of Snelling. With Nabors was defendant whom Nabors introduced as "Rick". At trial, evidence indicated that defendant often used the alias of "Rick Watson".
Almost immediately thereafter, Robin Cady and Shawn D'Brito drove up outside the trailer. Robin Cady rented a room from Snelling and she and D'Brito were just returning from a date. After they entered, Nabor put the gun to Snelling's head and told the couple, "You guys just walked into a whole bunch of shit."
Defendant taped Cady's and D'Brito's hands behind their backs with duct tape. Then, defendant and Nabors escorted Snelling through the house searching for money and valuables. From time to time Nabors would give defendant the gun to hold on Snelling or one of the other victims.
After searching the house for valuables, Nabors and defendant left the trailer and took three victims with them. Nabors and defendant forced Cady, D'Brito, and Snelling into Cady's car. Defendant sat in the driver's seat and held a gun on the three passengers. Nabors then explained that he was going back into the trailer to secure Rosen. When he returned to the car, they drove to a deserted area nearby, where Nabors' car was parked. Nabors took his car and followed defendant, who was still driving Cady's car with the three victims.
Defendant and Nabors drove to a desert area north of Phoenix where they parked both cars. Defendant and Nabors removed all three victims and made them lie face down on the ground. At this time defendant was holding the gun. Defendant told Snelling he was going to knock him out, but instead shot Snelling in the back of the head. Miraculously, Snelling not only survived but also remained conscious and was able to see the events that followed.
Nabors now had the gun. He shot D'Brito, and then he tried to shoot Cady. The gun misfired a couple of times, but finally Nabors was successful in shooting and killing Cady.
After defendant and Nabors left the scene, Snelling ran to a nearby house to call his parents. He asked them to go to his trailer to rescue Debra before "Rick" and Nabors had time to return and kill her. His parents were too late however. When they arrived, Debra had already been killed by strangulation.
Snelling then contacted the police. He told them of Nabors and also gave a description of "Rick". Several days later, Nabors killed himself during a gun battle with police. Defendant was later apprehended by police.
Defendant first contends that he was denied the right to confront witnesses against him in violation of the United States and the Arizona Constitutions. U.S. Const. amend. VI; Ariz. Const. art. 2, § 24. Less than a week before trial, defendant filed a motion for a mental examination pursuant to Rule 11, Rules of Criminal Procedure, 17 A.R.S.. On 12 October, between hearings on other matters, the trial judge mentioned to counsel that he had received the Rule 11 motion. Then, the trial judge stated:
Pursuant to the local policy in this county, I immediately called Dr. Garcia-Bunuel, the chief psychiatrist in the county, ... Good Dr. Garcia said that he would examine the defendant, I believe, by Friday, and let us know informally as to whether, in his opinion, there was cause to proceed with a full Rule 11 examination or not. He advised me, informally by telephone, then, that he would follow up later with a written report as required. On 15 October, the trial judge told counsel that he had received a telephone call from Dr. Garcia-Bunuel who told the judge that defendant was competent to stand trial under Rule 11. Defense counsel did not object to the informal reporting procedure followed by the trial judge on 12 October, nor did defense counsel object when the trial judge related that Dr. Garcia-Bunuel found defendant competent. Finally before ruling on the Rule 11 motion, the trial judge requested of defense counsel any further information indicating "reasonable grounds" for an examination. Defense counsel replied that he had none. The trial judge then denied the Rule 11 motion. Defendant now contends that this procedure denied him the opportunity to confront Dr. Garcia-Bunuel and to cross-examine him.
As of this moment, I have not yet heard from Dr. Garcia.
In Arizona, a person cannot be convicted, sentenced or punished for a crime if, due to a mental illness, he is unable to understand the proceedings against him or to assist in his own defense. Rule 11.1, Ariz.R.Crim.P. 17 A.R.S. (hereinafter Rule ____). Rule 11 provides that at any time after defendant is indicted, any party may move for an examination to determine defendant's competency to stand trial. Rule 11.2. Once a party moves for a Rule 11 examination, the court must determine that "reasonable grounds" for an examination exist. Rule 11.3. If the court does find that "reasonable grounds" exist, then the court shall appoint at least two mental health experts to examine the defendant and to testify regarding his mental condition. Id. Only after the examination by the two mental health experts has been completed does the court hold a hearing to determine competency to stand trial. Rule 11.5(a).
In the instant case, the trial court was only called upon to determine whether reasonable grounds for an examination existed. The trial judge appointed a psychiatrist to assist him in his determination and after talking to him, his determination was that reasonable grounds did not exist for proceeding further. A recent decision by this court reviewed a similar procedure. In State v. Johnson, 147 Ariz. 395, 710 P.2d 1050 (1985), the same Dr. Garcia-Bunuel as in the instant case, was asked to determine whether a full Rule 11 examination was necessary. Dr. Garcia-Bunuel recommended against an extensive examination. Based on Dr. Garcia-Bunuel's opinion and the judge's own observations of the defendant, he found no reasonable grounds for the formal examination and denied the motion. 147 Ariz. at 398, 710 P.2d at 1053. Concerning the appointment of a psychiatrist in Johnson, we said, Id. The procedure employed in the instant case was procedurally proper under our rules. Johnson, supra.
As to the constitutional issue, we note that defense counsel did not object at any time to the procedure used by the trial court. Failure to object usually waives the matter on appeal unless the matter involves fundamental error. State v. Thomas, 130 Ariz. 432, 435, 636 P.2d 1214, 1217 (1981). The right of confrontation, which includes the right to cross-examine witnesses, is a fundamental right. The United States Supreme Court in Pointer v. State of Texas said that "the Sixth Amendment's right of an accused to confront witnesses against him is ... a fundamental right ..." and that "the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him." 380 U.S. 400, 403-404, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923, 926 (1965). See also, State ex rel Collins v. Superior Court, 132 Ariz. 180, 644 P.2d 1266 (1982). We will consider the constitutional question even though not raised in the trial court.
The issue we must decide is whether the procedure used in the instant case denied defendant his right to confrontation and cross-examination. The Sixth Amendment to the United States Constitution states "the accused shall...
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