State v. Cruz, 5483

• Decision Date: 06 October 1983
• Docket Number: No. 5483,5483
• Citation: 137 Ariz. 541,672 P.2d 470
• Parties: STATE of Arizona, Appellee, v. Robert Charles CRUZ, Appellant.
• Court: Arizona Supreme Court

Page 470

672 P.2d 470

137 Ariz. 541

STATE of Arizona, Appellee, v. Robert Charles CRUZ, Appellant.

No. 5483.

Supreme Court of Arizona In Banc.

Oct. 6, 1983.

Reconsideration Denied Nov. 15, 1983.

Robert K. Corbin, Atty. Gen., William J. Schafer III, Chief Counsel, Crim. Division, Gerald R. Grant, Asst. Atty. Gen., Phoenix, for appellee

J. Douglas McVay, Phoenix, for appellant.

GORDON, Vice Chief Justice:

On December 10, 1981, a jury found appellant guilty of one count of conspiracy to commit first degree murder, two counts of first degree murder, one count of attempted first degree murder, three counts of kidnapping, three counts of armed robbery and one count of first degree burglary. On The evidence adduced at trial, viewed in the light most favorable to upholding the verdict, indicated that Pat Redmond and Ron Lukezic were partners in a successful printing business called Graphic Dimensions. In the summer of 1980 Graphic Dimensions was presented with the possibility of some lucrative printing contracts with certain Las Vegas hotels.

January 11, 1982, appellant was sentenced to life imprisonment for conspiracy to commit first degree murder, death for each count of first degree murder, twenty-one years imprisonment for attempted first degree murder, twenty-one years imprisonment for each count of kidnapping, twenty-one years imprisonment for each count of armed robbery, and twenty-one years imprisonment for first degree burglary. This Court has jurisdiction under Ariz. Const. art. 6, § 5(3) and A.R.S. § 13-4031. The judgments of conviction and sentences as to all counts are reversed.

In September of 1980 appellant asked Arnold Merrill if he would be willing to kill Pat Redmond for $10,000. Merrill declined. Appellant wanted Pat Redmond killed in order to get Redmond's interest in Graphic Dimensions. Appellant ultimately planned to have Ron Lukezic killed as well and take complete control of Graphic Dimensions.

In early December of 1980 appellant and Merrill went to the Phoenix Airport and picked up William Bracey and Murray Hooper who arrived on a flight from Chicago. After staying in a motel for a day or two Bracey and Hooper moved into Merrill's house where they were introduced to Ed McCall. A few days later Bracey, Hooper and Merrill followed Pat Redmond's car as Redmond left a bar. When they neared Redmond's car Hooper attempted to shoot Redmond. The attempt failed when Merrill, who was driving, swerved the car. After the failed attempt Bracey and Hooper moved out of Merrill's home. On December 8, 1980, McCall told Merrill he was joining up with Bracey and Hooper. Bracey and Hooper returned to Chicago shortly thereafter.

Bracey and Hooper came to Phoenix again on December 30, 1980. On the evening of December 31, Bracey, Hooper and McCall went to the Redmond home and forced their way in at gunpoint. Pat Redmond, his wife Marilyn, and Marilyn Redmond's mother Helen Phelps were present. The Redmonds and Mrs. Phelps were herded into the master bedroom where they were relieved of their valuables, bound with surgical tape, and gagged. They were then forced to lie on the bed where they were each shot in the head. Pat Redmond's throat was also cut. Pat Redmond and Mrs. Phelps died from their wounds but Marilyn Redmond lived.

Appellant was tried with McCall. Merrill was the state's key witness. The state's theory of the case was that appellant hired Bracey, Hooper and McCall to kill Pat Redmond. Appellant argued that the killings were the result of a robbery committed by Bracey, Hooper and McCall. McCall, along with the state, argued that the killings were a paid gangland-style execution ordered by appellant. McCall, however, claimed he was not involved. Both defendants were convicted. Appellant raises a number of issues on appeal.

DENIAL OF MOTION TO SEVER

Prior to trial appellant moved to sever his trial from co-defendant McCall's arguing that McCall's defense was so antagonistic to his that he could not get a fair trial if they were tried together. The motion was denied. Appellant re-urged the motion numerous times during the trial without success. He now claims the denial of the motion to sever was reversible error. We agree.

A trial court is required to grant a defendant's motion to sever if necessary to promote a fair determination of guilt or innocence of any defendant, or if the court detects the presence or absence of unusual features of the crime or case that might prejudice the defendant. State v. McGill, 119 Ariz. 329, 580 P.2d 1183 (1978); State v. Dale, 113 Ariz. 212, 550 P.2d 83 (1976); State v. Druke, 115 Ariz. 224, 564 P.2d 913 This Court has not specifically addressed the question of when the existence of antagonistic defenses becomes so prejudicial that severance is required. There is, however, much authority on the question from the United States Courts of Appeal. It appears well settled that the mere presence of hostility between co-defendants, or the desire of each co-defendant to avoid conviction by placing the blame on the other does not require severance. United States v. Riola, supra; United States v. Nichols, 695 F.2d 86 (5th Cir.1982); United States v. Berkowitz, 662 F.2d 1127 (5th Cir.1981); United States v. Lutz, 621 F.2d 940 (9th Cir.), cert. denied, 449 U.S. 859, 101 S.Ct. 160, 66 L.Ed.2d 75 (1980); United States v. Boyd, 610 F.2d 521 (8th Cir.1979), cert. denied sub nom. Clark v. United States, 444 U.S. 1089, 100 S.Ct. 1052, 62 L.Ed.2d 777 (1980); United States v. Haldeman, 559 F.2d 31 (D.C.Cir.1976), cert. denied sub nom. Ehrlichman v. United States, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977); United States v. Ehrlichman, 546 F.2d 910 (D.C.Cir.1976), cert. denied, 429 U.S. 1120, 97 S.Ct. 1155, 51 L.Ed.2d 570 (1977). Before severance is required, defenses must be irreconcilable; they must be antagonistic to the point of being mutually exclusive. United States v. Bovain, supra; United States v. Badolato, supra; United States v. Riola, supra; United States v. Madison, supra; United States v. Nichols, supra; United States v. Barnes, 681 F.2d 717 (11th Cir.), modified on other grounds, 694 F.2d 233 (11th Cir.1982), cert. denied sub nom. Riddle v. United States, 460 U.S. 1046, 103 S.Ct. 1447, 75 L.Ed.2d 802 (1983); United States v. Berkowitz, supra; United States v. Boyd, supra; United States v. Haldeman, supra.

                [137 Ariz. 544] (App.1977).  The decision to grant or deny a motion to sever is within the sound discretion of the trial court and will be reversed only if that discretion is abused.  State v. Johnson, 122 Ariz. 260, 594 P.2d 514 (1979);  State v. McGill, supra;  see United States v. Badolato, 701 F.2d 915 (11th Cir.1983);  United States v. Riola, 694 F.2d 670 (11th Cir.), cert. denied, 460 U.S. 1073, 103 S.Ct. 1532, 75 L.Ed.2d 953 (1983).  In deciding whether to grant a severance the court must balance the possible prejudice to the defendant against interests of judicial economy.  United States v. Sheikh, 654 F.2d 1057 (5th Cir.1981), cert. denied, 455 U.S. 991, 102 S.Ct. 1617, 71 L.Ed.2d 852 (1982);  State v. Druke, supra.   In challenging a trial court's failure to sever, a defendant must demonstrate compelling prejudice against which the trial court was unable to protect.   United States v. Bovain, 708 F.2d 606 (11th Cir.1983);  United States v. Riola, supra; United States v. Madison, 689 F.2d 1300 (7th Cir.1982), cert. denied, 459 U.S. 1117, 103 S.Ct. 754, 74 L.Ed.2d 971 (1983)
                

The most complete discussion of what it means for defenses to be mutually exclusive appears in United States v. Berkowitz, supra. In Berkowitz, the court analyzed and attempted to synthesize prior decisions dealing with the question of severance on the grounds of mutually exclusive defenses. The Berkowitz court concluded that defenses are mutually exclusive and, therefore, severance is required "if the jury, in order to believe the core of testimony offered on behalf of [one] defendant, must necessarily disbelieve the testimony offered on behalf of his co-defendant." 662 F.2d at 1134. See United States v. Badolato, supra; United States v. Riola, supra; United States v. Moschiano, 695 F.2d 236 (7th Cir.1982); United States v. Banks, 687 F.2d 967 (7th Cir.1982), cert. denied sub nom. McCruiston v. United States, 459 U.S. 1212, 103 S.Ct. 1208, 75 L.Ed.2d 448 (1983); United States v. Ziperstein, 601 F.2d 281 (7th Cir.1979), cert. denied, 444 U.S. 1031, 100 S.Ct. 701, 62 L.Ed.2d 667 (1980).

We believe the approach adopted by the above-cited decisions strikes a proper balance between a defendant's interest in a fair trial and considerations of judicial economy. It is natural that defendants accused of the same crime and tried together will attempt to escape conviction by pointing the finger at each other. Whenever this occurs the co-defendants are, to some extent, forced to defend against their co-defendant as well as the government. This situation results in the sort of compelling prejudice requiring reversal, however, only Applying this test to the instant case, we find that the defenses advanced by appellant and his co-defendant did not require severance. The core of appellant's defense was that he was not involved in the killings. In support of that theory appellant attacked the credibility of the state's key witness, Arnold Merrill, and presented evidence in an effort to minimize his own association with the killers from Chicago. He also presented evidence attacking the state's theory that he ordered the killings to obtain an interest in Graphic Dimensions and thereby participate in the profits from lucrative printing contracts with Las Vegas hotels. As a further defense tactic, he argued that the killings were the result of a robbery in which McCall and others had participated.

when the competing defenses are so antagonistic at their cores that both cannot be believed. Consequently, we hold that a defendant seeking severance based on antagonistic defenses must...