State v. Greenway

Decision Date03 December 1991
Docket NumberNo. CR-89-0199-AP,CR-89-0199-AP
Citation170 Ariz. 155,823 P.2d 22
PartiesSTATE of Arizona, Appellee, v. Richard Harley GREENWAY, Appellant.
CourtArizona Supreme Court

Robert K. Corbin, Atty. Gen. by Jessica Gifford Funkhouser, Chief Counsel, and Paul J. McMurdie, Asst. Atty. Gen., Phoenix, for appellee.

Joseph P. St. Louis, Tucson, for appellant.

OPINION

CAMERON, Justice.

I. JURISDICTION

Richard Greenway (defendant) was charged with and convicted of two counts of first degree murder pursuant to A.R.S. § 13-1105, one count of first degree burglary pursuant to A.R.S. § 13-1508, one count of armed robbery pursuant to A.R.S. § 13-1904, one count of theft by control pursuant to A.R.S. § 13-1802 and one count of arson of an unoccupied structure pursuant to A.R.S. § 13-1703. Defendant appeals from his convictions and death sentences on the two first degree murder counts pursuant to 17 A.R.S.Ariz.R.Crim.P., rule 31.2(b). We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and A.R.S. §§ 13-4031, 13-4033 and 13-4035.

II. ISSUES PRESENTED

We must consider the following issues on appeal:

1. Is Arizona's death penalty statute, A.R.S. § 13-703, unconstitutional?

a. Was defendant's sixth amendment right to a jury trial violated because the judge, rather than the jury, made the finding as to the existence of aggravating and mitigating factors?

b. Does the aggravating factor of "especially heinous, cruel or depraved" allow for arbitrary imposition of the death penalty?

c. Does the Arizona statutory scheme impermissibly presume death to be the appropriate penalty once the state has proven one or more aggravating factors?

d. Is death by gas cruel and unusual punishment?

2. Was the sentencing judge unable to impose a sentence in a fair and impartial manner?

a. Was the judge privy to inadmissible evidence because he also presided over the codefendant's trial?

b. Should the judge have recused himself or been removed for cause because he read the pre-sentence report prior to sentencing the defendant?

3. Did the trial court err in finding the following aggravating factors:

a. That the murders were committed for pecuniary gain, A.R.S. § 13-703(F)(5);

b. That the murders were committed in a cruel, heinous or depraved manner, A.R.S. § 13-703(F)(6); and

c. That the defendant was convicted of one or more other homicides, which were committed during the commission of the offense, A.R.S. § 13-703(F)(8).

4. Did the trial court err by finding defendant's age to be the only mitigating factor without considering the following:

a. Persons who committed crimes similar to defendant's received life sentences;

b. Defendant's low I.Q.; and

c. Codefendant received a life sentence.

5. Did the State fail to prove that this defendant committed the murders, thereby precluding the imposition of the death penalty?

III. FACTS AND PROCEDURAL HISTORY

On 28 March 1988, Pima County Sheriffs from Tucson found a 1983 Porsche 944, which had been burned and abandoned. Officials determined that the Porsche belonged to Frank and Lili Champagne. A deputy went to inform the Champagnes and discovered the bodies of Lili Champagne (Lili) and her daughter, Mindy Peters (Mindy). Lili had been shot once behind the left knee and once between the eyes. Mindy had been shot twice, once in the jaw and once behind the ear.

Following a news bulletin asking for information regarding the victims or the Porsche, defendant's sister notified homicide detectives that defendant knew something about the incident. Detectives picked up defendant at his sister's house. Defendant told detectives that he had met a man named "Red" at a 7-Eleven, and that Red had given both the defendant and Chris Lincoln (codefendant) a ride in a white Porsche. After driving around town, Red went to a Tucson address to visit his girlfriend.. According to defendant, Red told him to take the car and put gas in it. Defendant and codefendant rode around town for about an hour before returning to pick up Red. Red took them home, but returned a short time later to borrow a gas can.

The detectives had defendant retrace his trip with Red before taking him to the police station for questioning. In doing so, they went to the victims' residence. Defendant and codefendant were questioned separately, and codefendant confessed to the theft and arson of the Porsche and implicated defendant. During further questioning, codefendant confessed to participating in the killings and again implicated defendant. Both were arrested and charged with the murders of Lili and Mindy.

A search of defendant's trailer produced a set of keys fitting the Porsche. A search of codefendant's trailer produced ammunition identical to that used in the homicides and a portable stereo belonging to the victims. Detectives searched a neighbor's storage shed, which codefendant used, and found stereo equipment, gloves, a jacket and the murder weapon, a .22 caliber bolt action rifle with a loaded magazine. Defendant's fingerprint was found on the stock of the rifle and also on the driver's side of the Porsche.

Defendant was placed in a cell with Anthony Schmanski. Schmanski testified that when he asked defendant why he was in jail, defendant answered, "Well, I just blew two people away." When asked why, defendant responded that "they had seen his face." Schmanski notified authorities because defendant did not show "any remorse" and acted "nonchalant" about killing the victims.

Further investigation revealed that on the morning of 28 March 1988, defendant attempted to sell the victims' car stereo to Brian Mize, a coworker. Mize testified that defendant said he and a friend went to the victims' house, made sure that Lili and Mindy were in the same room, and entered through the garage. Defendant told Mize that after taking "some stuff" from the house, he sent codefendant out and then shot the victims. Defendant said that "after he shot the older lady that ... her body rolled over and blood gushed out of her head." According to Mize, defendant acted as if the murders were "just like something he would do on a weekend." Mize also testified that defendant said he had planned on going up to the house for two weeks and that he knew the girl and where she lived. Defendant also told Mize that he had taken a VCR and the Porsche and had later "torched" the car.

Mindy's friend, Linda Smolic, testified that defendant knew the victims. Defendant met Mindy and Linda around Christmas of 1987 at a local Jack-in-the-Box. He drove both of the girls to his trailer and later took them home. Defendant's sister found Mindy's wallet in her car and defendant returned the wallet to Mindy's mother at her house. A couple of months later, defendant drove Mindy and Linda to a party. According to Linda, this was the last time Mindy had any contact with the defendant.

After a four day trial, the jury returned guilty verdicts on all counts. At sentencing, the judge found three aggravating factors as to each first degree murder conviction: (1) that the murders had been committed for pecuniary gain, A.R.S. § 13-703(F)(5); (2) that the murders were especially heinous, cruel or depraved, A.R.S. § 13-703(F)(6); and (3) that defendant had been convicted of one or more homicides, which were committed during the commission of the offense, A.R.S. § 13-703(F)(8). The judge found defendant's age, 19 at the time of the killings, to be the only statutory mitigating factor. After considering all of defendant's proffered mitigating factors and finding them insubstantial to call for leniency, the trial court sentenced defendant to death on each of the first degree murder counts. Additionally, the court sentenced defendant to 21 years each for first degree burglary and armed robbery, 10 years for the theft by control and 5 years for arson of an unoccupied structure, the Porsche. All non-murder counts were to run consecutively to the death sentences and each other.

IV. DISCUSSION
1. Constitutionality of the death penalty statute

Defendant argues that Arizona's death penalty statute, A.R.S. § 13-703, is unconstitutional because: (1) the judge, and not the jury, decides the existence of aggravating and mitigating factors; (2) the aggravating factor of "especially heinous, cruel, or depraved" allows for the arbitrary imposition of the death penalty; and (3) once the State proves one or more aggravating factors, death is presumed the proper sentence and the burden shifts to the defendant to prove mitigating factors to offset the aggravating factors.

The United States Supreme Court recently addressed these arguments in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), aff'g State v. Walton, 159 Ariz. 571, 769 P.2d 1017 (1989), and held that Arizona's capital sentencing scheme is constitutional. This court has also previously rejected defendant's arguments. See State v. Vickers, 159 Ariz. 532, 768 P.2d 1177 (1989), cert. denied, 497 U.S. 1033, 110 S.Ct. 3298, 111 L.Ed.2d 806, rehearing denied, 497 U.S. 1050, 111 S.Ct. 14, 111 L.Ed.2d 829 (1990). We therefore find no error.

Defendant's next contention is that the trial court should have found in mitigation that death by lethal gas is cruel and unusual punishment. We disagree. The Arizona Constitution provides that all executions "shall be inflicted by administering lethal gas." Ariz. Const. art. 22, § 22. We also rejected this claim in State v. Williams, 166 Ariz. 132, 142, 800 P.2d 1240, 1250 (1987), cert. denied, 500 U.S. 929, 111 S.Ct. 2043, 114 L.Ed.2d 128 (1991). This argument has also been rejected at the federal level. See Gray v. Lucas, 710 F.2d 1048, 1061 (5th Cir.), cert. denied, 463 U.S. 1237, 104 S.Ct. 211, 77 L.Ed.2d 1453 (1983).

2. Was sentence imposed in a fair and impartial manner?
(a) Was the judge privy to inadmissible evidence?

Judge William Scholl presided over both defendant's and codefendant's trials. Defendant argues that...

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