State v. Greene, No. CR-96-0502-AP

• Court: Supreme Court of Arizona
• Writing for the Court: MARTONE; JONES, V.C.J., and MOELLER; ZLAKET; KLEINSCHMIDT
• Citation: 967 P.2d 106,192 Ariz. 431
• Parties: , 280 Ariz. Adv. Rep. 20 STATE of Arizona, Appellee. v. Beau John GREENE, Appellant.
• Decision Date: 20 October 1998
• Docket Number: No. CR-96-0502-AP

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967 P.2d 106 192 Ariz. 431, 280 Ariz. Adv. Rep. 20 STATE of Arizona, Appellee.
v.
Beau John GREENE, Appellant. No. CR-96-0502-AP. Supreme Court of Arizona,
En Banc. Oct. 20, 1998.

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Grant Woods, Attorney General, by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section, Dawn Northup, Assistant Attorney General, Phoenix, for the State of Arizona.

Harriette P. Levitt, Tucson, for Beau John Greene.

OPINION

MARTONE, Justice.

¶1 A jury convicted Beau John Greene of first degree murder (both premeditated and felony murder), robbery, kidnapping, theft,

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and six counts of forgery. The trial court sentenced him to death for the murder conviction, and to terms of imprisonment for the noncapital crimes. Appeal to this court is automatic under Rules 26.15 and 31.2(b), Ariz. R.Crim. P., and direct under A.R.S. § 13-4031. We affirm except as to the kidnapping conviction.

I. BACKGROUND

¶2 Roy Johnson, a music professor at the University of Arizona, was last seen around 9:30 p.m. on February 28, 1995. He was leaving the Green Valley Presbyterian Church where he had just given an organ recital. Although his wife expected him home before 10:00 p.m., the ordinarily punctual Johnson did not make it back that night. Four days later, authorities found his body lying face down in a wash. Greene admitted at trial that he killed Johnson.

¶3 Greene testified that he had been using methamphetamine continuously for several days preceding the murder and that he had neither slept nor eaten much during that time. He said that he was suffering from withdrawal from drugs when he killed Johnson.

¶4 The day of the murder, Greene's friends, Tom Bevan and Loriann Verner, told Greene he could no longer stay in their trailer located west of the Tucson Mountains. A drug dealer had threatened to shoot Greene over an outstanding debt and Bevan and Verner feared Greene's presence in their trailer would ruin their relationship with the drug dealer. Greene stole a truck and drove to Tucson where the truck broke down. Sometime that night, during Johnson's drive home from the concert, Greene and Johnson crossed paths, but the record does not tell us how.

¶5 Greene's story, disbelieved by judge and jury, is as follows. Johnson approached Greene in a park. Greene claims that Johnson wanted to perform oral sex on him, and offered to pay him for it. Greene accepted, and the two drove to a secluded parking lot in Johnson's car. Greene says he then changed his mind and told Johnson that he would not follow through. In response, Johnson purportedly smiled and touched Greene's leg. Greene claims he "freaked out" at Johnson's touch, and struck him several times in the head with his fist. He moved Johnson's motionless body to the back of the car, drove to a wash, and dumped the body. Next, Greene says, he walked back to the car and drove away. He claims he then realized that he needed money so he returned to the wash, walked down to the body, and stole Johnson's wallet.

¶6 Several pieces of evidence undermine Greene's version of the killing. First, medical testimony indicates that a heavy flat object--not a human fist--damaged Johnson's skull. Fist bones striking a person's head will ordinarily shatter long before the thick bones of the skull, yet neither of Greene's hands were injured. Second, only one set of tire tracks and footprints entered and left the wash, suggesting that Greene did not return for the wallet, but had it with him when he left immediately after the murder. Third, Greene told Bevan he beat someone to death with a club and dumped the body near Gates pass.

¶7 After dumping Johnson's body in the wash, Greene drove Johnson's car directly to the Bevan/Verner trailer. He told Bevan about the killing. Greene asked Bevan for some clean shoes. He also took a small rug to cover the bloody car seats.

¶8 Greene left the trailer and headed for K-mart, the first of several stops he made on a spending spree using Johnson's cash and credit cards. To explain any discrepancies between his signature and those on the credit cards, Greene wrapped his hand with K-Y jelly and gauze and feigned injury. Among other things, he bought clothes, food, camping gear, a scope and air rifle, and a VCR (which he later traded for methamphetamine). He eventually abandoned Johnson's car in the desert. On March 2nd, the police arrested Greene at a friend's house.

II. ISSUES

Greene raises the following issues:

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A. Trial Issues

1. Whether the trial court committed reversible error by allowing Johnson's wife to testify regarding Johnson's moral values;

2. Whether the trial court committed reversible error in denying appellant's motion for a directed verdict as to count three, robbery;

3. Whether the evidence was sufficient to sustain a conviction for kidnapping;

4. Whether the felony murder conviction cannot stand because the predicate felony convictions are invalid;

5. Whether the trial court committed reversible error by allowing the state to elicit testimony concerning letters Greene wrote after his arrest to Tom Bevan and Joseph Fausto (a.k.a."Dr.G.Jones").

B. Sentencing Issues

1. Whether the trial court committed reversible error by admitting into evidence and relying upon in the aggravation/mitigation hearing a letter Greene wrote to Christina George after his conviction;

2. Whether the imposition of the death penalty was improper;

3. Whether the trial court committed reversible error by imposing aggravated consecutive sentences on the noncapital offenses;

III. ANALYSIS

A. Trial Issues

1. WIDOW'S TESTIMONY

¶9 Greene claims the trial court erred by failing to limit Johnson's widow's testimony to the specific character trait of heterosexuality. The state recalled Mrs. Johnson to rebut the testimony of Greene's former girlfriend who testified that Greene had told her that he killed Johnson in response to a homosexual advance. Mrs. Johnson testified that Greene's claim "was preposterous....[Johnson] was a man of great honor and integrity, of great moral principle, of deep, abiding faith. And most importantly, he was devoted to me as I was to him." Tr. of Mar. 12, 1996, at 92.

¶10 Greene agrees that once a victim's sexual preference is put in issue, the state may offer rebuttal evidence regarding the victim's heterosexuality. See State v. Rivera, 152 Ariz. 507, 518, 733 P.2d 1090, 1101 (1987); see also Rule 404(a)(2), Ariz. R. Evid. But accusing a married person of making a nonspousal sexual advance places far more than sexual preference in issue. All sorts of character issues are implicated, such as fidelity, integrity, honesty, trustworthiness, and loyalty. Thus, for purposes of rebuttal, Greene's accusation implicated all of these.

¶11 Mrs. Johnson's testimony that her husband was devoted and faithful to her tends to show that the victim would not have made sexual advances toward Greene. Her testimony that he was a man of honor, integrity, and good moral character directly rebuts Greene's accusations of Johnson's infidelity. ¹ Admission of the testimony in question was proper rebuttal evidence. Rule 404(a)(2), Ariz. R. Evid. There was no error.

2. SUFFICIENCY OF THE EVIDENCE-ROBBERY

¶12 Greene moved for a directed verdict arguing that there was "no substantial evidence to warrant a conviction" on the robbery count. Rule 20(a), Ariz. R.Crim. P. Substantial evidence is proof that a rational trier of fact could find sufficient to support a conclusion of guilt beyond a reasonable doubt. State v. Murray, 184 Ariz. 9, 31, 906 P.2d 542, 564 (1995). We construe the evidence in the light most favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant. State v.

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Gallegos, 178 Ariz. 1, 9, 870 P.2d 1097, 1105 (1994).

¶13 A person commits robbery if, in the course of taking property of another from his person or immediate presence and against his will, he or she uses force with the intent to coerce the surrender of property or to prevent resistance. A.R.S. § 13-1902(A)(1989). Greene argues that there is no direct evidence that he intended to take the victim's property at the time he used force. He argues that he killed Johnson in response to the homosexual overture, dumped the body, and only then decided to steal his car and wallet. For these reasons, Greene claims his circumstances were similar to those in State v. Lopez, 158 Ariz. 258, 762 P.2d 545 (1988), where this court overturned a robbery conviction because of insufficient evidence.

¶14 Greene's reliance on Lopez is misplaced. Unlike Greene, the Lopez defendants discarded the victim's wallet and burned his car after the murder "for the purpose of removing themselves from the scene, to attempt to prevent or delay identification of the body, and to destroy evidence." Id. at 264, 762 P.2d at 551. Thus, there was no evidence that the earlier use of force against the victim was accompanied by an intent to commit a robbery. Id. Here, Greene was hungry, tired, and craving methamphetamine when he encountered Johnson. He had been thrown out of his temporary residence, had no transportation, and was seeking to avoid a drug dealer who had threatened to shoot him. After stealing Johnson's car, and within hours after killing him, he began spending Johnson's money and using his credit cards.

¶15 The examination of the crime scene revealed only one set of tire tracks and footprints to and from the wash. A rational trier of fact could have found beyond a reasonable doubt that Greene's use of force against Johnson was accompanied by an intent to take Johnson's property. The Rule 20 motion was properly denied.

3. SUFFICIENCY OF THE EVIDENCE-KIDNAPPING

¶16 Greene next argues that a rational trier of fact could not have found beyond a reasonable doubt that he knowingly restrained Johnson with the intent to inflict death, physical injury, or a sexual offense on the victim, or to otherwise aid in the commission of a felony. See A.R.S. §...