State v. Dann

Decision Date14 August 2003
Docket NumberNo. CR-02-0042-AP.,CR-02-0042-AP.
Citation74 P.3d 231,205 Ariz. 557
PartiesSTATE of Arizona, Appellee, v. Brian Jeffrey DANN, Appellant.
CourtArizona Supreme Court

Janet A. Napolitano, Former Arizona Attorney General, Phoenix, Terry Goddard, Arizona Attorney General, by Kent E. Cattani, Chief Counsel, Capital Litigation Section and Jim D. Nielsen, Assistant Attorney General, Attorneys for Appellee.

Susan M. Sherwin, Maricopa County Office of the Legal Advocate, Phoenix, by Brent E. Graham and Shughart, Thomson, Kilroy, Goodwin & Raup, P.C., Phoenix, by Rudolph J. Gerber, Attorneys for Appellant.

OPINION

BERCH, Justice.

¶ 1 Appellant Brian Jeffrey Dann was convicted of three counts of first degree murder and one count of first degree burglary. Following an aggravation and mitigation hearing, the trial court sentenced Dann to death for the murder convictions and to a concurrent term of fifteen years' imprisonment for the burglary conviction. Dann appealed directly to this court, see Ariz. R.Crim. P. 31.2(b), which has jurisdiction pursuant to Article VI, Section 5(3) of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") section 13-4031 (2001).

FACTS1

¶ 2 At approximately three o'clock in the morning on Easter Sunday, April 4, 1999, Brian Dann entered Andrew Parks' apartment and shot and killed Andrew, Andrew's sister Shelly, who was Dann's girlfriend of two years, and Andrew's friend, Eddie Payan.

¶ 3 The preceding evening, April 3, 1999, Dann had stopped by the home of his former girlfriend, Tina Pace-Morrell, to borrow a gun. He first claimed that someone was trying to kill him, but then told Tina that Andrew had fired a gun at him earlier in the day and he needed a gun for protection because he wanted to go to Andrew's apartment to pick up some of his belongings. Failing to convince Dann not to go to Andrew's apartment, Tina loaned him her father's snub-nosed .38 caliber revolver.

¶ 4 Dann was next seen at the Double K, a bar he frequented in Phoenix. Kim Tran Robinson, the owner of the bar, said that Dann remained at the Double K until shortly before 1:00 a.m. Sunday morning. Kim testified to Dann's unusual request that she hold $1000 in cash because, as Dann explained, "I might go [to] jail tonight, or I might go hunting."

¶ 5 Dann's friend George Thomas was also at the Double K that evening. Just before 1:00 a.m., George approached Dann to talk. Dann did not want to talk in the bar, so he accompanied George to the parking lot. The bar owner saw the men still talking in the parking lot at 2:00 a.m. as she was locking up.

¶ 6 During their parking lot conversation, Dann told George that he and Shelly were having problems. He related that Shelly's brother, Andrew, had shot at him earlier that day. He showed George the revolver he had borrowed from Tina, stating that he intended to "straighten the problem out." When George asked Dann what he intended to do with the gun, Dann said he intended to use it to kill Andrew. In fact, George related that Dann told him ten to fifteen times that he intended to kill Andrew. At another point in the conversation, Dann asked George for an unlicensed, untraceable "throw-away" gun. George refused Dann's request and spent the next two hours attempting to talk Dann out of his plan. By the end of the conversation, Dann seemed calmer and told George he was going home to go to bed.

¶ 7 Dann next spoke with Tina, who testified that Dann called between 2:00 a.m. and 3:00 a.m. on Sunday and told her that he had just shot three people. He asked what he should do. Tina advised him to turn himself in, but he refused. About thirty minutes later, he showed up at Tina's home to return the gun. While there, he described how he had forced his way into Andrew's apartment, "leveled the gun," and shot Andrew, then Shelly, and then Eddie. Dann recounted that he shot Andrew and Shelly because they laughed at him, and he shot Eddie because he had witnessed the shootings of Andrew and Shelly. Dann asked Tina to tell the police he was with her throughout the night, and thus provide him with an alibi. He then gave her the gun and five spent rounds. Before leaving, Dann washed up and borrowed some clothes.

¶ 8 At approximately six o'clock Sunday morning, Dann returned to Andrew's apartment. He called 911 to report that he had just discovered three bodies in the apartment. When Phoenix police officers arrived, they found Andrew in a chair, with a police scanner between his legs and a shotgun within reach. They also saw some bicycles, stereos, and "a lot of junk" in the apartment. In the main room of the apartment, a surveillance camera pointed toward the door. Although the video camera was on, there was no tape in the attached VCR to record any activity.

¶ 9 After learning of the deaths, Michael Parks, Andrew and Shelly's brother, rushed to the apartment. Michael observed that Dann did not seem upset over the murder of his girlfriend. Shortly after Michael's arrival, Dann asked him whether the police had recovered a tape from the surveillance camera. Michael spoke with Dann two or three other times that morning. Each conversation centered on the existence of a surveillance tape.

¶ 10 During the next few days, the police interviewed Tina and George and located the revolver Dann had borrowed from Tina. Ballistics analysis of the gun and the bullets recovered at the scene indicated that the bullets that killed Andrew, Shelly, and Eddie were fired from that revolver. The medical examiner testified that Andrew was shot twice, once in the chest and once in the right temple; that Shelly was shot once, in the top of her head above the right ear; and that Eddie was shot twice, once behind the left ear and once in his right forehead. The wounds on Shelly's temple and Eddie's forehead were soft contact wounds, indicating that the shooter took the time to place the weapon softly against their flesh before firing. The muzzle of the gun yielded DNA evidence, which testing showed to be blood belonging to Shelly Parks and Eddie Payan. On Wednesday, April 7, 1999, Dann was arrested for the triple homicide.

DISCUSSION
A. Introduction

¶ 11 In this direct appeal, Dann raises several issues stemming from events that occurred during the trial and its accompanying processes. Sentencing issues were not raised or briefed and will be discussed in a separate opinion. See State v. Ring, 204 Ariz. 534, 544, ¶ 6, 65 P.3d 915, 925 (2003) (Ring III).

B. Trial Issues
1. Is Arizona's first degree murder statute unconstitutional?
a. Is the statute unconstitutionally vague because it eliminates the requirement of actual reflection?

¶ 12 Dann argues that Arizona's first degree murder statute is unconstitutionally vague. Dann's objection is twofold: First, he argues that A.R.S. section 13-1101(1) (Supp. 1999), the first degree murder statute, removes "`actual reflection' as an element of premeditation," thus "obliterating the distinction between first degree murder and second degree murder," and, second, he maintains that, if actual reflection remains an element of first degree murder, the legislature has "impermissibly shifted the burden of proving (or disproving) the existence of that element on to the defendant."

¶ 13 We addressed these concerns in State v. Thompson, 204 Ariz. 471, 65 P.3d 420 (2003), and do not address them further here. As that case makes clear, actual reflection is required, and the burden remains on the prosecution to prove each element of the offense beyond a reasonable doubt. Id. at 478, ¶ 27, 65 P.3d at 427.

b. Is the statute vague as applied?
i. Did the instruction constitute error?

¶ 14 Dann contends that the premeditated murder statute is "vague as applied" in his case. Nonetheless, he requested a jury instruction that included the statutory language "proof of actual reflection is not required." A.R.S. § 13-1101(1). The trial judge, however, declined to include the quoted clause and instead gave the following instruction on premeditation, to which Dann also objected:

Premeditation means: Number one, that a person either intends or knows that his or her conduct will result in the death of another person; and
Two, his or her intention or knowledge exists before the killing long enough to permit reflection. An act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion. But no appreciable length of time must elapse between the formation of the intent to kill and the act. They may be as instantaneous as successive thoughts of the mind. However, it must be longer than the time required to form the intent or knowledge that such conduct will cause death.

¶ 15 A version of this instruction garnered a caution, but withstood scrutiny by this court, in State v. Guerra, 161 Ariz. 289, 293-94, 778 P.2d 1185, 1189-90 (1989) (cautioning against giving a jury instruction that employs the "no appreciable space of time" and "instantaneous as successive thoughts" language, yet concluding that any error in the instruction was not reversible error); see also State v. Eastlack, 180 Ariz. 243, 259, 883 P.2d 999, 1015 (1994) (same). ¶ 16 Since Guerra, however, "this court has continued to stress that the state must show actual reflection by a defendant to prove first degree murder and to minimize the emphasis placed on the mere passage of time as a proxy for proving reflection." Thompson, 204 Ariz. at 476, ¶ 20, 65 P.3d at 425.2 Even though "premeditation can occur as instantaneously as `successive thoughts of the mind,' we have nonetheless required proof, whether direct or circumstantial, of actual reflection." Id.; see also State v. Willoughby, 181 Ariz. 530, 539, 892 P.2d 1319, 1328 (1995) ("Premeditation is established by evidence of a plan to murder formed after deliberation and reflection."); State v. Kreps, 146 Ariz. 446, 449, 706 P.2d 1213, 1216 (1985) (same). Accordingly, if a court's instruction or a prosecutor's comment to the jury...

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