State v. Fierro, CR-87-0051-AP

CourtSupreme Court of Arizona
Citation166 Ariz. 539,804 P.2d 72
Docket NumberNo. CR-87-0051-AP,CR-87-0051-AP
PartiesSTATE of Arizona, Appellee, v. Jose Abel FIERRO, Appellant.
Decision Date18 December 1990

FELDMAN, Vice Chief Justice.

Defendant Jose Abel Fierro (Fierro) was convicted of first degree murder and first degree burglary. He was sentenced to death for the murder and to life imprisonment, without possibility of parole for twenty-five years, for the burglary. We have jurisdiction over this automatic appeal pursuant to Ariz. Const. art. 6, § 5(3), and A.R.S. §§ 13-4031 and 13-4033.


At approximately 10:00 p.m. on September 29, 1985, Merle Moseley, a Phoenix attorney, and his fiancee, Anne Manross, returned to their home in Higley, Arizona to find a burglary in progress. As they drove toward the house, they noticed a strange car in the driveway, lights on in the house, and some of their possessions on the porch. They also noticed a person standing on the porch. Manross dialed the emergency number, 911, from the car telephone as Moseley jumped out of the passenger door, armed with a .38 revolver.

Moseley fired a warning shot, drew a bead on the intruder, and ordered him to stay where he was. Manross informed Moseley that she was on the line with the emergency operator and that the sheriff's department was "coming out." As Moseley shouted at the intruder and repeatedly threatened to shoot him if he attempted to move, Manross told the emergency operator that Moseley was trying to keep the burglary suspect scared. Manross reported, "My headlights are on the guy," and described the intruder's car and gave its license number to the emergency operator. Moseley kept his gun trained on the intruder and moved from the passenger's side, around the rear of his automobile, to the driver's side. As Moseley continued yelling and advanced toward the intruder's car, Manross told the emergency operator that Moseley had been drinking and was "a little excited."

The emergency operator instructed Manross to tell Moseley to calm down and that a deputy was on the way. As Manross conveyed this information to Moseley, shots were fired. Bullets hit the windshield, causing Manross to fall on the seat to protect herself. Struck in the chest by one of the bullets, Moseley told Manross he had been shot and crawled into the back seat behind her.

Manross crashed the car through the gate at the end of the driveway, stopping in the middle of the road. While stopped, Manross began describing the intruder to the emergency operator. She heard another series of shots. She then observed the other car drive away to the north of the back yard, through an alfalfa field. In the process of leaving the scene, the car crashed through a steel gate, ran over some planking and barbed wire fence, and jumped an irrigation canal.

Fierro left his apartment that night between 7:30 and 8:00 p.m. Sometime between 10:00 p.m. (the time of the confrontation at Moseley's house) and 11:00 p.m., he returned to his apartment, woke his girlfriend, and told her he had been in a "shoot-out" and had accidentally shot himself. He had on a bloody T-shirt and had sustained a wound to his arm. Fierro told his girlfriend to go to the police station and report that his car had been stolen. He drove her to the police station and dropped her off. As she got out of the car, she noticed it had a dent in the front end. She arrived at the police department at 11:27 p.m. and told the police her car had been stolen sometime between 9:00 and 9:15 p.m. from the parking lot of a convenience store near her home.

At 12:40 a.m. on September 30, 1985, a sheriff's deputy observed the car near Williams Field and Val Vista Roads. As the marked patrol car passed him, Fierro pulled onto the shoulder of the road. The deputy turned his car around and parked in front of Fierro's vehicle. As he placed Fierro under arrest, the officer observed a bloody T-shirt, a television, and a black holster in plain view in the car. He secured the car and waited for the detective in charge of the Moseley-Manross burglary and shooting to arrive. The vehicle matched the description of the vehicle used in the burglary/shooting, had sustained front end damage consistent with crashing through a heavy steel gate, and had grass stuck to the left front bumper similar in type to that ripped up by the suspect car as it left the Moseley residence.

Manross later identified the vehicle as the one that had been in the driveway of her home the night of the shooting. She also identified a number of items inside the car as belonging to herself and Moseley. Fierro explained the bloody T-shirt by claiming that it was his blood and that he had to fight two people to get his car back after it had been stolen.

Moseley was flown to Scottsdale Memorial Hospital. The .22 caliber bullet struck the lower lobe of his right lung, traveled through his liver and a kidney, and lodged on the left side of his rib cage. On October 10, 1985, Fierro was indicted for the attempted murder of both Moseley and Manross, and for armed burglary. Moseley died of the gunshot wound on November 20, 1985. Fierro was then indicted on one count of first degree murder. Subsequently, the state filed allegations of dangerous nature, of prior and/or repetitive convictions, and of a dangerous offense committed while on parole. 1

The jurors found Fierro guilty of first degree murder of Moseley and first degree burglary, and acquitted him of the attempted murder of Manross. They further found the allegation of dangerous nature to be true. Verdict, Dec. 23, 1986. The court later found, for purposes of enhancing the sentence for burglary, that the state proved beyond a reasonable doubt that Fierro was on parole when he committed these crimes. Special Verdict, Mar. 6, 1987; see State v. Waggoner, 144 Ariz. 262, 697 P.2d 345 (Ct.App.1984).

After an aggravation/mitigation hearing on the murder conviction, the trial court found three aggravating factors: Fierro had previously been convicted of a felony involving the use or threat of violence, he knowingly created a grave risk of death to a person other than the victim, and he committed the offenses with the expectation of pecuniary gain. The court found no mitigating factors. Fierro was sentenced to death on the murder conviction and to life imprisonment without possibility of parole for twenty-five years on the burglary conviction, as mandated by A.R.S. § 13-604.02. Fierro filed a timely notice of appeal claiming the following errors:

1. He was denied his sixth amendment right to counsel and his fourteenth amendment right to due process of law when the trial court admitted an unreliable in-court identification that followed an uncounseled pretrial identification procedure.

2. The trial court erroneously admitted evidence of a "prior bad act."

3. The trial court erred in imposing the death penalty after receiving and considering victim impact evidence.

4. His death sentence is invalid because the trial judge considered a presentence report.

5. Fierro also argued that the Arizona death penalty statutes are invalid on several grounds. We have previously considered and rejected the constitutional arguments presented. See, e.g., State v. Fulminante, 161 Ariz. 237, 258, 778 P.2d 602, 623 (1988) (burden of proof on defendant for mitigating circumstances constitutional), cert. granted, 494 U.S. 1055, 110 S.Ct. 1522, 108 L.Ed.2d 762 (1990), aff'd, --- U.S. ----, 111 S.Ct. 1246, 113 L.Ed.2d 302; State v. Correll, 148 Ariz. 468, 483-84, 715 P.2d 721, 736-37 (1986) (jury trial not required for capital sentence); State v. Harding, 137 Ariz. 278, 292, 670 P.2d 383, 397 (1983) (prosecutorial discretion upheld), cert. denied, 465 U.S. 1013, 104 S.Ct. 1017, 79 L.Ed.2d 246 (1984); State v. Zaragoza, 135 Ariz. 63, 69, 659 P.2d 22, 28 (1983) (not an unconstitutional mandatory death penalty statute), cert. denied, 462 U.S. 1124, 103 S.Ct. 3097, 77 L.Ed.2d 1356 (1983); State v. Schad, 129 Ariz. 557, 574, 633 P.2d 366, 383 (1981) (state's burden of proof for aggravating circumstances constitutional), cert. denied, 455 U.S. 983, 102 S.Ct. 1492, 71 L.Ed.2d 693 (1982).

The United States Supreme Court has upheld the constitutionality of Arizona's death penalty statute. Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990). We recently discussed the application of Walton in some detail, concluding that the same constitutional arguments Fierro advances here are without merit. See State v. Amaya-Ruiz, 166 Ariz. 152, 800 P.2d 1260 (1990). We see no point in again discussing these arguments. Accordingly, we limit our discussion to claims of errors one through four.

I. Guilt/Innocence Issues
A. Admissibility of the In-Court Identification

Three days after the shooting, a deputy sheriff put together a photographic line-up that included Fierro and showed it to Anne Manross at Scottsdale Memorial Hospital. After studying the photographs, Manross tapped Fierro's picture and stated that "the eyes are right." Reporter's Transcript (R.T.), Dec. 16, 1986 (a.m.), at 44-45. Manross later called the prosecutor and told him she wanted to see Fierro in person. The prosecutor apparently told her it would be "okay" and gave her information about when and where a pretrial hearing would be held. R.T., Nov. 17, 1986, at 115. Manross attended the pretrial hearing and saw Fierro sitting in the jury box, handcuffed together with a group of in-custody defendants. Manross testified that she picked out Fierro before his name was called by the judge. Id. at 120. She was present in the courtroom for approximately fifteen to twenty...

To continue reading

Request your trial
91 cases
  • State v. West
    • United States
    • Supreme Court of Arizona
    • September 30, 1993
    ...... The trial judge found that the defense version of the facts of the Illinois offense, a version not brought out at trial in Illinois, was incredible. The trial judge is in the best position to determine the credibility of witnesses. State v. Fierro, 166 Ariz. 539, 553, 804 P.2d 72, 86 (1990). We accept the trial judge's finding that the circumstances of defendant's previous manslaughter conviction were not mitigating. Cf. Atwood, 171 Ariz. at 654-55, 832 P.2d at 671-72 (finding meritless the defendant's argument that facts of prior ......
  • State v. Henry
    • United States
    • Supreme Court of Arizona
    • November 12, 1993
    ...... We rejected the same argument in State v. Correll, 148 Ariz. 468, 479, 715 P.2d 721, 732 (1986) and decline Henry's invitation to revisit the issue. .         His reliance on State v. Fierro, 166 Ariz. 539, 804 P.2d 72 (1990) is misplaced. There, the Texas statutory definition of robbery included "recklessly" causing bodily injury to another during a theft; violence was not necessary to commit the offense. In contrast, California Penal Code § 211, in existence at the time of ......
  • State v. Strayhand
    • United States
    • Court of Appeals of Arizona
    • September 7, 1995
    .......         The question at the heart of this issue is whether the lineup created a substantial likelihood of misidentification by unfairly focusing attention on the person that the police believed committed the crime. State v. Fierro, 166 Ariz. 539, 545-46, 804 P.2d 72, 78-79 (1990). An identification procedure, however, does not create a substantial likelihood of misidentification merely because of subtle differences between photographs. State v. Perea, 142 Ariz. 352, 356, 690 P.2d 71, 75 (1984). .         Here, the ......
  • State v. Roscoe
    • United States
    • Supreme Court of Arizona
    • February 1, 1996
    ...... Gerlaugh, 144 Ariz. at 459, 698 P.2d at 704. Moreover, we note that A.R.S. § 13-703(C) places the burden on the defendant to proffer mitigating evidence, which must be proved by a preponderance of the evidence. State v. Fierro, 166 Ariz. 539, 551, 804 P.2d 72, 84 (1990). That the burden is on the defendant reinforces the conclusion that his personal decision not to present certain mitigating evidence is within his discretion. .         No authority supports Roscoe's view that the procedure here resulted in ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT