State v. Gulbrandson

• Decision Date: 02 November 1995
• Docket Number: No. CR-93-0085-AP,CR-93-0085-AP
• Parties: STATE of Arizona, Appellee, v. David GULBRANDSON, Appellant.
• Court: Arizona Supreme Court

Page 579

906 P.2d 579

184 Ariz. 46

STATE of Arizona, Appellee, v. David GULBRANDSON, Appellant.

No. CR-93-0085-AP.

Supreme Court of Arizona, In Banc.

Nov. 2, 1995.

[184 Ariz. 53] Grant Woods, Attorney General by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section, Colleen L. French, Assistant Attorney General, Phoenix, for Appellee.

Jan J. Raven, Phoenix, for Appellant.

OPINION

CORCORAN, Justice.

Appellant David Gulbrandson (defendant) was convicted of premeditated first-degree murder and theft. He was sentenced to consecutive sentences of death on the murder conviction and the presumptive term of 5 years on the theft conviction. This automatic appeal followed. See A.R.S. § 13-4031; rules 26.15, 31.2(b), & 31.15(a)(3), Arizona Rules of Criminal Procedure. Defendant also filed a separate notice of appeal of the conviction and sentence on the theft charge. We have jurisdiction pursuant to article 6, § 5(3) of the Arizona Constitution and A.R.S. §§ 13-4031 to -4033. We affirm defendant's convictions and sentences.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Facts

In 1990, defendant and the victim, Irene, became partners in a photography business known as Memory Makers, which they operated out of Irene's home. For about one year, during 1990, Irene and defendant were also romantically involved. Defendant lived with Irene and her two children until January 1991 when Irene asked him to move out. He leased his own apartment on February 1, 1991.

After the romantic relationship ended, the business relationship continued, but defendant suspected that Irene was trying to steal the business from him. Irene did in fact wish to sever the business relationship and wanted to "buy out" defendant by paying him for his proportionate share of the business. From about January to March 1991, Irene resumed dating Evan Shark, with whom she had been involved before her relationship with defendant.

On February 14, 1991 (Valentine's Day), defendant became intoxicated and argued with Irene about the business in the presence of two friends, Sally and Charles Maio. Defendant tried to strangle Irene, and Charles Maio had to pull defendant off of her. Later, when the Maios drove defendant home, defendant said, "I'm going to kill her [Irene]. I'm going to kill the business. I'm going to kill everything." Irene filed a petition complaining about the incident and obtained an injunction prohibiting harassment, which was an order from the court prohibiting defendant from having any contact with Irene and from going to her residence. A police assistant testified at trial that when she served defendant the injunction on February 27, 1991, defendant "called [Irene] a bitch."

Irene traveled to New Mexico on business the weekend of March 8, 1991, accompanied by Evan Shark, to sell photographs by Memory Makers. She returned on Sunday, March 10, about 7:00 p.m. with cash and checks from the business trip. Mr. Shark returned to his home in Las Vegas, Nevada.

The next morning, Monday, March 11, 1991, Irene's daughter went to her mother's bedroom to awaken her and found the bedroom door locked. Her daughter knocked on the door but heard no response; she then noticed a dark stain on the wall leading to her mother's bedroom. Suspecting that something was wrong, the daughter telephoned her grandmother who called the police. The police found Irene dead in the bathroom adjacent to her bedroom, and her car, a 1987 Saab Turbo, was missing. Two of her three children were home the evening of March 10 but apparently did not hear anything suspicious.

Irene was killed brutally. The police found her face down dressed in only a pair of panties with her legs bent up behind her at the knee and her ankles tied together by an electrical cord attached to a curling iron. Her right wrist was bound with an electrical cord attached to a hair dryer. Her bedroom was covered in what appeared to be blood. From the bedroom to the bathroom were what appeared to be drag marks in blood. Clumps of her hair were in the bedroom; some of the hair had been cut, some burned, and some pulled out by the roots.

Four knives and a pair of scissors were in the kitchen sink and appeared to have blood on them; hair appeared to be on at least one of the knives. There also was what appeared to be blood on a paper towel holder in the kitchen; a burnt paper towel was in Irene's bedroom. A Coke can with what appeared to be a bloody fingerprint on it was on the kitchen counter; this fingerprint was later identified as defendant's. At trial, the state's criminalist testified that the knives, scissors, paper towel holder, and Coke can had human blood on them, although the police did not determine the blood type. Defendant's fingerprints were found on the paper towel holder and on an arcadia door at Irene's home, which was open in the family room the morning after the crime. A blood-soaked night shirt with holes in it was in Irene's bedroom; the blood on the nightshirt was consistent with Irene's blood type. A banker's bag was also in her bedroom with what appeared to be blood on it.

The autopsy revealed that Irene suffered at least 34 sharp-force injuries (stab wounds and slicing wounds), puncture wounds, and many blunt force injuries. The most serious stab wound punctured her liver, which alone was a fatal injury. Her nose was broken, as were 2 ribs on the back of the chest and 5 ribs in front on the same side of her trunk. The tine from a wooden salad fork was embedded in her leg; a broken wooden fork was found in the bedroom. On her left buttock was an abrasion that appeared to be from the heel of a shoe. The thyroid cartilage in front of her neck was fractured, which could have been caused by squeezing or by impact with a blunt object. She died from the multiple stab wounds and the blunt neck injury. The neck injury may have resulted in asphyxiation. The pathologist believed that most, if not all, of the injuries were inflicted before death.

The police immediately suspected defendant. Police officers set up a surveillance of his apartment. Having observed no one entering or leaving the apartment, police officers conducted a "check-welfare" sweep of the apartment at about 3:00 p.m. on March 11, because they were concerned that defendant might have been injured in the struggle with Irene. The officers knocked on the door, announced their identity, and entered the apartment with a pass key after hearing no response. They searched briefly for defendant, but he was not inside. While making the sweep, an officer saw some apparently blood-splattered papers on the kitchen counter and a jacket apparently stained with blood hanging on the back of a kitchen chair.

Early in the evening of March 11, defendant called his mother, Dorothy Riddle, and told her that "he thought he had done a terrible thing. He thought he had killed Irene." Defendant also said that he was going to kill himself. Ms. Riddle called the police and told them about this conversation.

The police obtained a warrant to search defendant's apartment and did so at about 8:20 p.m. on March 11. The police found checks from New Mexico, payable to Memory Makers, and other business papers relating to Memory Makers; black clothing (shoes, shirt, pants, and a jacket); and a business card in the back pocket of the black pants. All these items had human blood on them consistent with Irene's blood type. The police also found a credit card of Irene's in the pocket of the black jacket.

Witnesses saw defendant gambling in Laughlin, Nevada, in the early morning of Tuesday, March 12, 1991. Defendant told casino employees that his name was David Wood. The casino offered, and defendant accepted, a free room for the day because defendant had played for several hours and lost between $1,100 and $1,200.

Defendant had attempted to sell Irene's car to a bar owner in Great Falls, Montana, but the bar owner refused, in part because defendant could not produce a title to the car. Defendant did sell a cellular phone from the car to the bar owner. On April 1, 1991, a police officer in Montana found Irene's car abandoned with Canadian license plates attached; the officer found an Arizona license plate under the driver's seat. The police apprehended defendant in Montana on April 3, 1991.

B. Procedural Background

On April 17, 1991, defendant was indicted in Maricopa County for first-degree murder and theft.

Defendant's counsel requested a rule 11 competency examination, which was denied after a pre-screening report was prepared. The trial court granted defendant's request for a neurological examination (CAT scan) because of a prior head injury.

Defendant presented at trial the defenses of insanity and lack of intent. At no time did defendant allege the defense of self-defense. Martin Blinder, M.D., defendant's psychiatric expert who performed an evaluation of defendant, testified about defendant's abusive childhood, history of depression and alcoholism, past psychiatric treatment, and past history of familial, financial, and personal failure. He further testified to 4 diagnoses of defendant's psychiatric condition: dissociative episode and fugue state, bipolar disorder, alcoholism, and personality disorder. The trial court sustained the state's objections to any testimony regarding defendant's mental state at the time of the offense because Dr. Blinder could not testify that defendant was M'Naghten insane. ¹

Defendant's sisters, Edith Klemp and Paula Famularo, both testified regarding defendant's poor relationship with his father and prior mental problems. They both testified that if defendant murdered Irene, he did not know what he was doing, nor did he understand the consequences of his act.

The state called in rebuttal Alexander Don, M.D., and John Scialli, M.D., who both performed psychiatric evaluations of defendant. Dr. Don testified that defendant told him that the last memory defendant had before Irene's murder was going to her home...