State v. Djerf

Decision Date21 May 1998
Docket NumberNo. CR-96-0296-AP,CR-96-0296-AP
Citation959 P.2d 1274,191 Ariz. 583
Parties, 270 Ariz. Adv. Rep. 14 STATE of Arizona, Appellee, v. Richard Kenneth DJERF, Appellant.
CourtArizona Supreme Court
OPINION

JONES, Vice Chief Justice.

¶1 The defendant, Richard Kenneth Djerf, accepted a plea agreement which resulted in convictions of four counts of first degree murder. He was sentenced to death on each count. This is a mandatory appeal of the death sentences pursuant to Rules 26.15 and 31.2 of the Arizona Rules of Criminal Procedure. The court has jurisdiction under article VI, section 5(3), of the Arizona Constitution and A.R.S. section 13-4301. We affirm the convictions and sentences.

FACTS

¶2 The defendant and Albert Luna, Jr. met and became friends while working as night custodians at a Safeway supermarket. In January 1993, Luna entered defendant's apartment without defendant's permission and took several items, including a television, a VCR unit, stereo equipment, a car alarm, and an AK-47 assault rifle. Although defendant told Glendale police he suspected Luna had committed the crime, the police took no action. The matter festered for several months until the defendant, still angered by the burglary and frustrated by police inaction, determined to take revenge.

¶3 In the late morning hours of September 14, 1993, defendant went to the Luna family home, taking his nine-millimeter Beretta handgun, a knife, latex gloves, handcuffs, red fuse cord, and artificial flowers in a vase to use as a ruse to gain entry. When Luna's mother, Patricia, answered the door to receive the flowers, defendant pushed his way into the house, showing her his gun. Defendant took Patricia into the master bedroom and bound her, letting her five-year-old son, Damien, run free. Later, while holding Damien hostage, defendant freed Patricia and forced her to place items of property into the Luna family car, including two VCR units, a telephone, a caller ID box, a stereo CD player, four watches, change, and a money clip with food stamps. He then took Patricia and Damien into the kitchen and bound them to chairs with rope and black electrical tape. More than once, he asked Patricia whether she or her son should die first. He also asked her if she knew the whereabouts of her son, Albert Jr.

¶4 Around 3:00 p.m., Rochelle, Patricia's daughter, age eighteen, came home. Defendant took Rochelle to her bedroom, gagged her with tissue paper and tape, tied her wrists to the bed, cut and removed her clothes with a knife, and raped her. Defendant then stabbed Rochelle four times in the chest and slit her throat, severing the jugular vein. Two of the chest wounds and the throat wound were potentially fatal. Rochelle further suffered multiple shallow knife wounds to the back of her head while she was alive, and one, probably postmortem, superficial stab wound to her right temple. Her earring had been torn through the earlobe. At some point while still alive, Rochelle vomited behind the gag and aspirated the vomit. Defendant then told Patricia he had raped and killed her daughter.

¶5 Around 4:00 p.m., Albert Luna, Sr. arrived home from work. Defendant handcuffed him, forced him to crawl to the master bedroom, and placed him face down on the bed. He struck Albert in the back of the head multiple times with an aluminum baseball bat, inflicting three large lacerations and spattering blood throughout the room. The medical examiner testified that hemorrhaging from these wounds was potentially fatal. Defendant removed the handcuffs from Albert, taped his hands and wrists together, and left him for dead. He then walked to the kitchen and told Patricia that he had killed her husband.

¶6 Defendant next attempted to snap Damien's neck by twisting the head abruptly from behind, "like he had seen in the movies." In fact, he "turned [Damien's head] all the way around and nothing happened," so he freed the child's head. In an attempt to electrocute Damien, defendant cut an electrical cord from a lamp in the kitchen, stripped the insulation from the wires, and taped it to the skin on Damien's calf. The cord was found unplugged at the scene.

¶7 Albert, although badly injured, freed himself from the tape around his wrists, went to the kitchen, and charged defendant with a pocketknife, wounding him seriously. During the ensuing struggle, defendant stabbed Albert with enough force to drive a knife through the right arm and into the torso. Defendant managed to pull the Beretta from his belt and shot Albert six times. Albert fell at the feet of his wife and son.

¶8 Defendant asked Patricia, "Do you want to watch your kid die, or do you want your kid to watch you die?" Defendant then shot both Patricia and Damien in the head at close range.

¶9 Defendant splashed gasoline on the bodies and throughout the house. His girlfriend, Emily Boswell, testified that defendant told her he lit the red fuse cord but put it out when he realized there were children playing outside and he could not leave the house immediately without being seen. A short while later, he turned on two of the kitchen stove burners, placed an empty pizza box and a rag on the stove, and left the house. Defendant then drove to his apartment in the Lunas' family car, the stolen property inside, where he encountered Boswell at about 6:00 p.m. He told Boswell that he had been stabbed by two men who tried to rob him. He later went to the hospital and was admitted.

¶10 For some reason, the pizza box and rag failed to ignite the gasoline. Albert Jr. had not gone to his home the night of September 13, and did not return until 11:45 p.m. the day of the murders, September 14. Numerous unanswered calls to the house had made him anxious. When Luna entered the home and discovered the bodies of his parents and brother, he immediately left and drove to his girlfriend's house where he called the police.

¶11 The next day, September 15, defendant disclosed to Boswell that he had murdered four members of the Luna family and described to her how he had done it. Defendant told Boswell that the blood dripping from Patricia's gunshot wound was "really awesome" and "you should have been there." On September 16, a friend, Travis Webb, checked defendant out of the hospital, but defendant was unwilling to go to his own apartment. Webb rented a motel room, where defendant stayed until September 18. Also on September 16, defendant called another friend, Daniel Greenwood, in California, and once again, revealed his role in the four murders. While in the motel room, defendant also told Webb of his involvement in the murders at the Luna home.

¶12 On September 18, Phoenix police executed search warrants on the motel room and defendant's car and apartment. The police found handcuffs, a nine-millimeter Beretta, a stereo CD player, two VCR units, a U.S. West caller ID unit, artificial flowers and a vase, watches, Rochelle's charm necklace, a cardboard knife sheath, Patricia's car keys, a telephone, loose change, food stamps, and a red fuse cord. Police arrested defendant the same day. At the time of arrest, the police found a handcuff key and a newspaper section containing an article about the killings in his possession.

PROCEDURAL HISTORY

¶13 A Maricopa County Grand Jury indicted defendant for the following crimes: Count One, first degree murder of Albert B Luna, Sr.; Count Two, first degree murder of Damien Luna; Count Three, first degree murder of Patricia Luna; Count Four, first degree murder of Rochelle Luna; Count Five, first degree burglary; Counts Six through Nine, kidnapping; Count Ten, sexual assault; Counts Eleven through Fifteen, aggravated assault; Count Sixteen, attempted arson of an occupied structure; Count Seventeen, theft; and Count Eighteen, misconduct involving weapons.

¶14 Michael Vaughn and Alan Simpson were appointed as trial counsel, but on February 15, 1995, defendant filed a motion to remove both and to substitute himself as counsel pro se for all future proceedings in the trial court.

¶15 The court held a hearing on defendant's requests on February 23 and found, based on the record, that defendant's waiver of counsel was made voluntarily, knowingly, and intelligently. The trial court granted defendant's motion for pro se representation, and Vaughn and Simpson were appointed as advisory counsel.

¶16 On March 17, three weeks later, the state filed a motion for a Rule 11 evaluation to determine defendant's competence to waive counsel and conduct his own defense in view of an apparent suicide attempt soon after his arrest. Defendant filed a motion agreeing to such an evaluation, to "remove any doubt as to ... competence." The trial court ordered preparation of a prescreening evaluation to determine whether a Rule 11 examination was warranted. Dr. Jack Potts evaluated defendant and pronounced him competent. Based largely on Dr. Potts' findings, the trial court concluded that no reasonable grounds existed to grant a complete Rule 11 competency hearing and reaffirmed its finding that defendant should be allowed to proceed pro se.

¶17 Defendant then entered into the plea agreement with the state. By its terms, defendant pled guilty to four counts of first degree murder in the deaths of Albert Sr., Damien, Patricia, and Rochelle Luna. The agreement expressly stated that no limits would be placed on sentencing and defendant could be sentenced to death for any or all of the murder counts. In return, the state agreed to dismiss the remaining counts.

¶18 On August 16, 1995, the trial court held a hearing on the plea agreement. After informing defendant of specified constitutional rights which would be relinquished by accepting the plea agreement, acknowledging Dr. Potts' prescreening report, and reaffirming the finding of competency, the trial court...

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