State v. Guerra, CR-87-0082-AP

Citation161 Ariz. 289,778 P.2d 1185
Decision Date13 June 1989
Docket NumberNo. CR-87-0082-AP,CR-87-0082-AP
PartiesSTATE of Arizona, Appellee, v. Henry Daniel GUERRA, Appellant.
CourtSupreme Court of Arizona

Robert K. Corbin, Atty. Gen. by Jessica Gifford Funkhauser and Paul J. McMurdie, Asst. Attys. Gen., Phoenix, for appellee.

John M. Antieau, Phoenix, for appellant.

GORDON, Chief Justice.

Defendant, Henry Daniel Guerra, appeals from his conviction for premeditated first-degree murder. The trial court sentenced Guerra to life imprisonment without the possibility of parole for 25 years. This Court has jurisdiction pursuant to Ariz. Const. Art. 6, § 5(3) and A.R.S. §§ 13-4031, -4033, and -4035.


Early in the morning on September 30, 1986, Guerra stabbed George McMahon to death. The events leading to the murder took place in the neighborhood surrounding a cul-de-sac on West Christy Drive in Phoenix. Entering the cul-de-sac, victim McMahon's house is on the left, witness Peter McGillan's house is on the right, and witness Ben Spinelli's house is straight ahead. The Schneider house is between Spinelli's and McMahon's. An alley completely surrounds the cul-de-sac.

During various times from July 1984 through August 1986, Guerra lived with the Spinelli family. He overstayed his welcome, however, and in August 1986, Mr. Spinelli told Guerra to stay away from the house and his daughter, Guerra's former girlfriend. Despite these orders, Guerra secretly lived in the Spinelli family's camper parked in their backyard.

The night of September 28, 1986, McMahon caught Guerra stealing gas from the Schneider's car. McMahon confronted Guerra, took his high school ID card, and told him to wait outside while he called the police. Guerra left before the police arrived. McMahon discussed the incident with Spinelli.

On September 29, Spinelli confronted Guerra in a parking lot and urged him to turn himself in. Guerra refused and ran away. That evening, Guerra visited with neighborhood teenagers. He stated to several of them that he was going to "get back at" or "get even with" Spinelli and McMahon.

Later that night, Guerra and his friend, Barton Cox, went to Cox's house and changed into camouflage clothing. Guerra armed himself with a "Rambo" knife and a ball and chain weapon (mace) that he nicknamed his "perpetrator." One of the teenagers overheard Guerra ask Cox if he had "the gun." When Cox said no, Guerra glared at him. Cox then went into his house for a few minutes and returned.

Guerra and Cox proceeded to the alley surrounding the cul-de-sac. Guerra claimed they went to retrieve some of his clothing from the Spinellis' camper and to play some pranks on Mr. Spinelli. While Cox waited in the alley, Guerra sneaked into the Spinellis' yard and tied a rope from their garage door to a car.

Meanwhile, Peter McGillan, standing outside with his friend, Paul Sandusky, heard noises that sounded like rocks landing in the cul-de-sac. Moments later, McMahon came across the cul-de-sac and told them someone was throwing rocks at his house from the alley. He asked Sandusky and McGillan to "walk the alley" with him.

In the alley, they found Cox hiding in the bushes. Cox and McMahon got into an argument and McMahon, an off-duty detention officer, handcuffed Cox. Cox was struggling, so McMahon sat on him while McGillan went to call the police. Sandusky remained at the scene, holding a flashlight. Guerra heard the struggle, left Spinelli's house and approached McMahon and Cox. McMahon was kneeling on Cox's back when Guerra arrived. Cox started to squirm and McMahon and Guerra scuffled. McMahon was still kneeling on Cox when Guerra stabbed him once, piercing his heart.

A grand jury indicted Guerra and Cox on two counts: first-degree murder and conspiracy to commit first-degree murder. Near the close of the prosecutor's case, the trial judge dismissed the conspiracy charge. The jury acquitted Cox and found

[161 Ariz. 292] Guerra guilty of premeditated first-degree murder.


On appeal, Guerra raises numerous issues, which we discuss separately.

A. Evidence Supporting Premeditated Murder Charge
1. Double jeopardy

Guerra argues that once the court dismissed the conspiracy count, the constitutional prohibition against double jeopardy and the principle of collateral estoppel precluded use of the same evidence to support the premeditated murder charge. Guerra cites Turner v. Arkansas, 407 U.S. 366, 92 S.Ct. 2096, 32 L.Ed.2d 798 (1972), Harris v. Washington, 404 U.S. 55, 92 S.Ct. 183, 30 L.Ed.2d 212 (1971), and Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).

We disagree. The cases cited by Guerra are distinguishable. In Turner, a victim was robbed and murdered. A jury tried and acquitted defendant of felony murder charges. After the acquittal, the State obtained an indictment and attempted to prosecute the defendant for robbery. The Supreme Court held that the attempted second prosecution violated collateral estoppel and double jeopardy. 407 U.S. at 368-70, 92 S.Ct. at 2098-99, 32 L.Ed.2d at 800-01.

In Harris, someone bombed a house, killing three people. A jury acquitted defendant of the murder of one victim. After trial, authorities immediately rearrested defendant on informations charging him with the murder of the other two victims. The Supreme Court held that under the principles of collateral estoppel, the State could not retry the defendant because the new charges involved the same issues decided in the previous case. 404 U.S. at 56-57, 92 S.Ct. at 184, 30 L.Ed.2d at 214-15.

In Ashe, a group of robbers robbed six men gambling in a basement. The jury found defendant not guilty of one robbery, but later, the State tried and convicted defendant for robbing another gambler. The United States Supreme Court reversed the judgment, holding that collateral estoppel and double jeopardy principles prohibited another trial for the robbery. 397 U.S. at 445-47, 90 S.Ct. at 1195-96, 25 L.Ed.2d at 476-77. All of these cases involve an acquittal followed by attempted successive prosecutions. Guerra was prosecuted only once.

The double jeopardy clause is not violated absent threat of either multiple punishment or successive prosecutions. United States v. Wilson, 420 U.S. 332, 344, 95 S.Ct. 1013, 1022, 43 L.Ed.2d 232, 236 (1975). The double jeopardy clause prevents the State from making repeated attempts to convict an individual for an offense. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). Acquittals or dismissals of related charges within the same prosecution generally do not prohibit convictions on remaining charges. State v. Clayton, 109 Ariz. 587, 598, 514 P.2d 720, 731 (1973) (dismissal of premeditated murder count at conclusion of State's case did not prevent jurors from finding defendant guilty of felony murder). The trial court's dismissal of the conspiracy count did not preclude a guilty verdict on the premeditated murder count.

2. Using evidence of conspiracy to support murder charge

Guerra claims that when the trial court entered acquittal on the conspiracy count, it should also have granted a mistrial on the premeditated murder count because the conspiracy evidence allegedly contaminated the trial. Guerra cites State v. Marahrens, 114 Ariz. 304, 560 P.2d 1211 (1977) and State v. Washington, 103 Ariz. 605, 447 P.2d 863 (1968).

We disagree. In both Marahrens and Washington, this Court held that it was reversible error for the State to introduce evidence of the defendant's possible involvement in unrelated crimes. Marahrens, 114 Ariz. at 307-08, 560 P.2d at 1214-15; Washington, 103 Ariz. at 608, 447 P.2d at 866. However, admitting evidence relating to the defendant's commission of other crimes does not always amount to reversible error. When dismissing the conspiracy count, the trial judge stated he believed that "the evidence that is in, is in properly under various theories."

We agree with the trial judge. The evidence relating to the conspiracy was also relevant to the premeditated murder charge and was admissible to show intent, premeditation, or to "complete the story of the crime," even though the evidence incidentally showed that Guerra committed other crimes. M. Udall & J. Livermore, Law of Evidence § 84 (1982). State v. Chaney, 141 Ariz. 295, 309-10, 686 P.2d 1265, 1279-80 (1984) (in murder trial, evidence that defendant committed a burglary and stole a truck admissible to complete the story of the crime).

3. Sufficiency of evidence on premeditated murder charge

Guerra contends that the evidence available to support the premeditated murder charge was insufficient to take to the jury and that the trial court should have entered a judgment of acquittal on the premeditation charge.

When reviewing the sufficiency of the evidence, an appellate court does not reweigh the evidence to decide if it would reach the same conclusions as the trier of fact. State v. Mincey, 141 Ariz. 425, 432, 687 P.2d 1180, 1187, cert. denied, 469 U.S. 1040, 105 S.Ct. 521, 83 L.Ed.2d 409 (1984); State v. Brown, 125 Ariz. 160, 162, 608 P.2d 299, 301 (1980). All evidence will be viewed in the light most favorable to sustaining the conviction and all reasonable inferences will be resolved against the defendant. State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981), cert. denied, 459 U.S. 882, 103 S.Ct. 180, 74 L.Ed.2d 147 (1982). If conflicts in evidence exist, the appellate court must resolve such conflicts in favor of sustaining the verdict and against the defendant. State v. Girdler, 138 Ariz. 482, 488, 675 P.2d 1301, 1307 (1983), cert. denied, 467 U.S. 1244, 104 S.Ct. 3519, 82 L.Ed.2d 826 (1984). When a defendant challenges the sufficiency of the evidence, the court will affirm the conviction if there is "substantial evidence" to support the guilty verdict. Tison, 129 Ariz. at 552, 633 P.2d at 361. "Substantial evidence" means:

More than a scintilla and is such proof as a reasonable mind would employ to...

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