State v. Davolt

Decision Date17 February 2004
Docket NumberNo. CR-00-0508-AP.,CR-00-0508-AP.
Citation84 P.3d 456,207 Ariz. 191
PartiesSTATE of Arizona, Appellee, v. James Edward DAVOLT, II, Appellant.
CourtArizona Supreme Court

Janet Napolitano, Former Arizona Attorney General, Terry Goddard, Arizona Attorney General, by Kent E. Cattani, Chief Counsel, Capital Litigation Section and James P. Beene, Assistant Attorney General, Phoenix, Attorneys for Appellee.

Julie S. Hall, Arizona Capital Representation Project, by Jennifer Bedier, Tucson, Attorneys for Appellant.


JONES, Chief Justice.

¶ 1 James Edward Davolt II was convicted April 20, 2000 of two counts of first degree murder—the first for the killing of N.Z. predicated on the felony murder rule, and the second for the killing of E.Z., predicated on both felony murder and premeditation. Davolt was also convicted of one count of first degree burglary, one count of theft of property valued at $1,000 or more, one count of arson of an occupied structure, and one count of theft of means of transportation. Following a sentencing hearing, the trial judge sentenced Davolt to death for each of the murder counts and to consecutive sentences of twenty-one years for the burglary, two years for the theft, ten years for the arson of an occupied structure, and seven years for the theft of means of transportation. The direct appeal came to this court pursuant to Arizona Rule of Criminal Procedure 31.2(b). We have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 13-4031 and -4033 (2001). For the following reasons we affirm Davolt's convictions but remand Davolt's death sentences to determine whether Davolt, a juvenile, possessed the maturity and moral responsibility at the time of the offenses sufficient to make him eligible for the death penalty. Also, because the record does not demonstrate that the trial court considered Davolt's age as a mitigating factor as to the sentences for the non-capital counts, we remand for resentencing on those counts.

1. The Crime Scene

¶ 2 Early Thanksgiving morning, November 26, 1998, a paper delivery man noticed water streaming out from under the garage door and down the driveway of a house on Pueblo Drive in Lake Havasu, Arizona. Thinking perhaps the water heater had burst, he contacted police to do a welfare check. On arrival, the police discovered the house had sustained a fire. An interior inspection revealed the charred bodies of an elderly man and woman, respectively N.Z. and E.Z., lying on the kitchen floor. Burnt file folders were found on top of the bodies, a red metal gas can was between them, and an oscillating fan was at their feet. A melted candle was in front of the fan. Water was leaking from under the sink and had flooded the house.

¶ 3 Police found three .22 caliber shell casings in the living room and kitchen area of the house, as well as spots of blood in the dining room and kitchen, and in the backyard near the hose. They also found a ceramic bowl filled with partially smoked Marlboro cigarettes on a table near an easy chair in the living room. A wine box sat on the same table. E.Z.'s walker was facing away from the kitchen counter. The phone in the dining area was off the hook and had red duct tape on it. The victims' dog was found alive, locked inside the master bathroom.

¶ 4 In the garage, police discovered a bloody roofing hatchet and a fresh strike mark on the door between the kitchen and the garage. A significant quantity of blood was splattered around the inside perimeter of the garage. Some of the blood was smeared in a linear pattern as if someone had tried to clean it up with a mop. An empty camping fuel can was found on the washing machine, alongside N.Z.'s bloody glasses. The victims' automobile was missing.

2. The Bank Withdrawal

¶ 5 After learning of the deaths of their customers, Bank One officials notified police that a withdrawal had been made from the victims' bank account Tuesday, November 24, 1998. Further investigation revealed that a $1,500 check, made payable to James Davolt and signed by E.Z., had been cashed on the account at 10:46 a.m. that day. Davolt gave his thumb print and driver's license to the bank teller in order to cash the check. At trial, the bank teller positively identified Davolt as the person who had cashed the check that morning.

¶ 6 Bank records indicated that three unsuccessful ATM withdrawal attempts had been made on the victims' account earlier that morning. Bank security pictures from the drive-up ATM machine showed Davolt, driving the victims' car, attempting to make a withdrawal from their account at 9:55 a.m. The picture clearly showed a short person riding in the passenger seat of the vehicle. A different picture showed Davolt attempting to make a withdrawal from the victims' account at the walk-up ATM a few minutes later. An hour later, at 10:46 a.m., a bank security camera captured Davolt, inside the bank, cashing the $1,500 check. He was wearing a Green Bay Packers shirt and cap.

¶ 7 Davolt's mother viewed the videotape, but told police she could not identify her son. She informed officers that Davolt did not own a Green Bay Packers' shirt. However, N.Z. was an "extreme" Packers fan.

3. Sightings of Davolt, N.Z., and E.Z.

¶ 8 Davolt was sixteen years old and an eleventh grader at Lake Havasu High School. He was reported missing as of Monday afternoon, November 23, 1998, when he failed to return home from school. Although he left home as usual that Monday morning on his bicycle with a book bag, he never arrived at school.

¶ 9 A workman testified that he had seen Davolt riding a green mountain bike with a book bag on his back on Pueblo Drive around 9:00 a.m. that morning. He recalled that N.Z. had been walking his dog and Davolt had introduced himself to N.Z. The workman overheard N.Z. ask Davolt where he lived and Davolt pointed to the intersection with Sweetgrass Road. The workman saw Davolt speak with N.Z., ride up and down Pueblo Drive on his bike, lie on an air mattress under some power lines for a short time, then go back to speak to N.Z. again. One of the conversations occurred in N.Z.'s garage. At another point, Davolt played with N.Z.'s dog for about forty-five minutes.

4. The California Arrest

¶ 10 On Friday, November 27, 1998, Lake Havasu detectives matched Davolt's fingerprints with those found at the crime scene on the ceramic bowl used as an ashtray, the gas can in the garage, and a mop handle. An arrest warrant was issued for Davolt in connection with the homicides and the missing vehicle.

¶ 11 At about 10:30 p.m. Sunday, November 29, 1998, in Beaumont, California, a local police officer spotted an oddly parked vehicle in the vacant parking lot of a nursery store. A plate check revealed that the vehicle had been reported stolen and that an arrest warrant had issued for a James Davolt in connection with a theft and two homicides. While the officer was investigating, a young man walked up and stated he was the owner of the car. The young man identified himself as James Davolt. The officer placed Davolt under arrest and handcuffed him.

¶ 12 A pat down produced a key with the number "101" that looked like a motel room key. The officer immediately questioned Davolt about the key, asking whether it was to a hotel room, and, if so, which hotel. Davolt responded that the key was to a room at the Windsor Motel in Beaumont, California.

¶ 13 Davolt was first advised of his Miranda rights at approximately 1:00 a.m. Monday, November 30, 1998, when he was booked into custody at the police station in Beaumont. He invoked both his right to counsel and his right to remain silent. He was then placed in a holding cell until police officers from Lake Havasu, Arizona, arrived at approximately 5:30 a.m. These officers also advised Davolt of his Miranda rights. Once again he invoked his right to remain silent and asked to speak with a public defender. Police officers then promised Davolt that anything he said could not be used against him and proceeded to question Davolt about the homicides for approximately forty-five minutes, during which time Davolt made several inculpatory statements. ¶ 14 Within minutes of obtaining Davolt's inculpatory statements, officers again approached Davolt and requested that he sign a written consent to search the motel room. Davolt signed the consent form, and police relied on it to enter the room later that morning, at which time they seized the following items: a toy remote control vehicle; a Green Bay Packers shirt, jacket and cap; red duct tape; a black duffel bag containing clothing belonging to N.Z.; cut-off jean shorts stained with Davolt's blood; a crossword puzzle book and files belonging to E.Z. and N.Z.; and two medallions, each with numbers written on the reverse side.

¶ 15 The vehicle was identified as belonging to the victims. The passenger compartment contained Davolt's school books, food wrappers, packs of Marlboro cigarettes, the book, Masters of Deceit, by J. Edgar Hoover, and a lunch ticket from Lake Havasu High School. A bank card and insurance documents belonging to E.Z. and N.Z. were found in the glove compartment, and a partially dismantled mountain bike was found in the trunk.

5. The Forensic Investigation

¶ 16 The forensic investigation revealed that the blood in the garage, kitchen, dining room, and backyard belonged to N.Z. A flame accelerant, such as camping fuel or lighter fluid, was detected on the clothing samples taken from the victims. The fire had originated between the victims' bodies and reached a temperature of at least 300 degrees. The fire and heat caused a leak in the reverse osmosis system under the sink, and water from the sink area had flooded the house. The arson investigator testified the fire had eventually extinguished itself due to a lack of oxygen.

¶ 17 The autopsy results established that N.Z. had sustained three lacerations to the head: one...

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