State v. Eastlack

• Decision Date: 03 November 1994
• Docket Number: No. CR-91-0121-AP,CR-91-0121-AP
• Citation: 883 P.2d 999,180 Ariz. 243
• Parties: STATE of Arizona, Appellee/Cross-Appellant, v. John Patrick EASTLACK, Appellant/Cross-Appellee.
• Court: Arizona Supreme Court

Page 999

883 P.2d 999

180 Ariz. 243

STATE of Arizona, Appellee/Cross-Appellant, v.John Patrick EASTLACK, Appellant/Cross-Appellee.

No. CR-91-0121-AP.

Supreme Court of Arizona, In Banc.

Nov. 3, 1994.

[180 Ariz. 247] Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Crim. Appeals, Colleen French, Asst. Atty. Gen., Phoenix, and Stephen D. Neely, Pima County Atty. by Thomas J. Zawada, Deputy County Atty., Tucson, for state.

Isabel G. Garcia, Pima County Legal Defender by Kathleen C. DuBois, Robb P. Holmes, Deputy County Legal Defenders, Tucson, for John Patrick Eastlack.

OPINION

MOELLER, Vice Chief Justice.

STATEMENT OF THE CASE

The defendant, John Patrick Eastlack, escaped from an Arizona correctional facility and, before his capture in Texas, committed several crimes in Arizona.A jury convicted him of second degree escape, two counts of second degree burglary, arson of an occupied structure, theft by control of property with a value of more than $100.00 but less than $250.00, first degree burglary, theft by control of an automobile, and two counts of first degree murder.He was sentenced to death for the murders.This is an automatic direct appeal under A.R.S. § 13-4031andAriz.R.Crim.P. 26.15 and 31.2(b).We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3)andA.R.S. §§ 13-4031and13-4033.For reasons we develop more fully below, we affirm all of defendant's convictions but remand for resentencing.

FACTS

Defendant was serving a nine-year prison term when he escaped from the Arizona Department of Corrections' Wilmot facility in Tucson on August 29, 1989.After running and hiding all night in the desert, he ended up at a townhouse complex in Tucson where he spent the afternoon of August 30 swimming.When darkness approached, he broke into a nearby house (house No. 1).There he made numerous local and long distance phone calls trying to get help from friends and acquaintances, but to no avail.One of his calls was to a friend incarcerated at a Department of Corrections facility.An officer at the facility became suspicious and called the number defendant had left for his friend, which was the number to the phone in house No. 1.When defendant answered the phone, the officer recognized his voice.Suspecting that the caller was a correctional employee, defendant decided that it was no longer safe to remain at house No. 1.He left the house, leaving his fingerprints behind.

Defendant then spent the night in the pool and jacuzzi of a nearby apartment complex.The next morning he left that complex, walked along a canal, spotted a house with a "for sale" sign (house No. 2), and approached it for a closer look.After spotting alcoholic beverages in the home and deciding that there was probably food and a phone there as well, defendant entered house No. 2.He ate some food, drank some alcohol, and stole several items of personal property, including jewelry, clothing, and a handgun.Although defendant later denied that he was looking for ammunition, in an earlier statement he said, "I searched the whole house and no bullets."Before leaving house No. 2, he set fire to it.

From house No. 2, defendant proceeded to the house of the murder victims, 85-year-old Leicester Sherrill and his 82-year-old wife, Katherine Sherrill.Before being resolved at trial, defendant's intent in going to the house and the sequence of events once he entered were disputed issues.Defendant himself gave conflicting accounts.Initially, defendant stated that he told the Sherrills he was going to rob them.At trial, though, defendant testified that he merely intended to use the Sherrills' phone, that his attacks on the Sherrills were a reflexive, defensive reaction to an attack on him by Mrs. Sherrill, and that taking the Sherrills' car was an afterthought.Notwithstanding these discrepancies, defendant admits that he severely beat the victims and that they both died as a result.

Defendant was 21 years old at the time of the attack and had previous martial arts experience.Eighty-five-year-old Mr. Sherrill weighed 134 pounds.He received a total of 57 wounds, including, below his left eye, fractured bones and a one-half inch deep laceration in which was embedded a piece of wood from a chair leg.He also received a fractured nasal bone; a fractured maxilla; bruises around both eyes and on both cheeks; bruises on his neck, chest and shoulder regions; a laceration and multiple bruises on his forehead; extensive tears on both arms; a puncture wound on the left side of his neck; broken cartilage and bone around his voice box; multiple bruises on various other parts of his body; possible defensive wounds on his left hand; and 25 separate rib fractures.Medical testimony showed that the rib fractures, the wounds around the voice box, and the blow below the left eye were all potentially fatal.

Eighty-two-year-old Mrs. Sherrill weighed 90 pounds.She received a total of 37 wounds, including bruises and lacerations behind her left ear; tearing of the skin and bruising on her right jaw and cheek; multiple lacerations and skull fractures on the top of her head; scrapes and bruises on her head and neck in the upper back region; a two-inch deep puncture wound on the right front part of her chest; a bruise on her left hand and wrist; and a scrape and bruises on her right hand.Medical testimony showed that any one of the skull fractures she received was potentially fatal and that they were probably the result of a strong, physically fit, 190-200 pound person striking with a blunt object, using close to full force.All of the wounds the doctor examined on both victims were inflicted before death.

After beating the victims, defendant barricaded Mrs. Sherrill in a room, took her car keys from her purse, took one of their cars, and drove to El Paso, Texas, leaving the Sherrills alive, but bleeding and dying.After a flight to and from Miami, Florida, defendant was ultimately arrested in El Paso.

GUILT PHASE ISSUES

Defendant raises 12 issues relating to the guilt phase of his trial.They are:

1.Whether defendant's post-arrest statements to police officers should have been suppressed as violative of his Miranda/ Edwards rights.

2.Whether the trial court abused its discretion in denying defendant's motion for a change of venue.

3.Whether defendant's motions for change of the trial judge for cause and to disqualify the presiding judge from selecting the trial judge should have been granted.

4.Whether the trial court erred in refusing to ask the jury panel certain questions posed by defendant.

5.Whether the trial court properly excused a juror who expressed a strong pretrial belief in the credibility of a potential (but uncalled) defense witness.

6.Whether the trial court abused its discretion in denying defendant's motion for mistrial based on a juror's comments to other jurors during the jury selection process.

7.Whether the trial court committed reversible error by admitting hearsay testimony on the results of fingerprint comparisons.

8.Whether the trial court abused its discretion in admitting photographs of the victims' autopsies.

9.Whether the evidence is sufficient to support the jury's finding that the burglary of the Sherrill home was an armed burglary.

10.Whether there was sufficient evidence to support first degree murder convictions under a felony murder theory.

11.Whether defendant's motion for directed verdict on Count Nine (theft) was properly denied and whether the court properly permitted an amendment to Count Nine.

12.Whether the jury instructions contained errors of law.

DISCUSSION

A.Guilt Phase Issues

1.Admissibility of Defendant's Statements

In a recorded interview after defendant's arrest, Detective Pantke of the Pima County Sheriff's office questioned defendant at an El Paso police station.Before starting the interview, Pantke reinformed defendant of his Miranda rights, and defendant agreed to answer his questions.Defendant first denied knowledge of the crimes for which he was arrested, but when Pantke asked him, "What if I told you that your prints were also in the arson house?,"defendant began to admit his involvement:

Q: Do you remember burning the house?

A: Yeah.

Q: What else did you take from the house when you got the ring?

A: Uh--

Q: How about the necklace you're wearing, John?

A: Yeah, that.

Q: How about the gun?

A: I think I better talk to a lawyer first.

Q: Okay.Does that mean you don't wanna talk to me anymore?

A: Not about that, no.What about the burglaries?

Q: As far as the burglary is--does that mean you wanna talk to me again?

A: Sure.

Q: Okay.' Cause you already asked for an attorney.You said you didn't want, you didn't wanna talk to me, then you asked for an attorney, but now you're asking to talk to me again, just so I, just so I'm clear in my mind.

A: Right.

Q: You, you do wanna talk to me?

A: Sure.

The interview continued, and defendant admitted his involvement in the crimes for which he was eventually charged, including the murders.

Defendant argues on appeal that his statement, "I think I better talk to a lawyer first," was an unequivocal assertion of his right to counsel.If it was, argues defendant, the detective's subsequent questioning violated his rights under the Fifth and Fourteenth Amendments of the U.S. Constitution, and the trial court should have suppressed all of defendant's subsequent incriminating statements.¹

An accused in custody, "having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police."Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378(1981).The Edwards rule is clear--once a criminal suspect during custodial interrogation has invoked his right to have counsel...