State v. Hankins

• Decision Date: 14 June 1984
• Docket Number: 5796,Nos. 5795,s. 5795
• Citation: 141 Ariz. 217,686 P.2d 740
• Parties: STATE of Arizona, Appellee, v. Daniel Ray HANKINS and Paul Edward Satterfield, Appellants.
• Court: Arizona Supreme Court

Page 740

686 P.2d 740

141 Ariz. 217

STATE of Arizona, Appellee, v. Daniel Ray HANKINS and Paul Edward Satterfield, Appellants.

Nos. 5795, 5796.

Supreme Court of Arizona,

In Banc.

June 14, 1984.

Reconsideration Denied July 17, 1984.

Robert K. Corbin, Atty. Gen., by William J. Schafer, III, Chief Counsel, Criminal Division, David R. Cole, Asst. Attys. Gen., Phoenix, for appellee

Michael L. Vaughn, Phoenix, H. Allen Gerhardt, Jr., Tempe, Antonio R. Zuniga, Phoenix, for appellants.

GORDON, Vice Chief Justice:

On December 17, 1982, a jury found Daniel Ray Hankins and Paul Edward Satterfield guilty of first degree murder and second degree burglary. They were each sentenced to life imprisonment for the first degree murder count and to 11.25 years for the second degree burglary count. The sentences were to be served concurrently. Timely appeal was filed by both. This Court has jurisdiction pursuant to Ariz.Const. art. 6, § 5(3) and A.R.S. § 13-4031. We affirm the convictions and the sentences.

Sometime in late May, 1982, Angela Seay, Linda Foster, and the two appellants left Oregon in appellant Hankins' van to travel around the country visiting various friends and relatives. On June 1, 1982, the foursome checked in at the Kon Tiki Hotel in Phoenix. After moving their belongings from the van into their room, the two appellants left to visit someone in Chandler. Seay and Foster stayed at the Kon Tiki for several hours but eventually left, Seay armed with a handgun and Foster with a knife, to solicit acts of prostitution. At some point, the two women met John Hay and accompanied him to the apartment he shared with his sister, the murder victim, Patricia Hay. Seay left shortly after their At approximately the time Foster was trying to leave the Hay apartment, Seay and the two appellants were at the Kon Tiki waiting for Foster to return. They decided to go to the apartment where Seay had last seen her. They drove to the Hay apartment and arrived, unknown to them, minutes after Foster had left.

arrival at the apartment, telling Foster that if she (Foster) were not back at the Kon Tiki in an hour, she (Seay) and the two appellants would come get her. Foster stayed at the Hay apartment for approximately an hour and then attempted to leave. While trying to force her to stay, John Hay assaulted Foster with a knife, cutting her hand. Foster ran from the Hay apartment, returned to the Kon Tiki, left a note on the hotel room door for her friends, and made her way to the county hospital for medical attention.

With appellant Hankins remaining in the van, Seay and appellant Satterfield approached and knocked on the apartment door. John Hay, who had been beating his sister as she lay on the couch, ran into the apartment's only bedroom. When there was no response to his knocks, appellant Satterfield kicked in the door and entered. He approached Patricia Hay's boyfriend, Thomas Howell, and accused him of having beaten Foster. Howell denied this and told appellant Satterfield that the person he wanted was in the bedroom. Appellant Satterfield entered the bedroom and, while searching for Foster, found John Hay in the closet. A fight ensued between the two men.

Meanwhile, a fight had also begun between Seay and Patricia Hay in the living room. Howell had gotten outside where he encountered appellant Hankins. Howell returned to the apartment, got Patricia Hay, and tried to leave. Seay pulled Patricia Hay back into the apartment. Still outside, appellant Hankins again confronted Howell. Within moments, Seay shot Patricia Hay and appellant Hankins struck Howell in the mouth. Howell and Patricia Hay managed to leave the apartment. Appellant Hankins went to the bedroom, interrupted the fight between appellant Satterfield and John Hay, and told appellant Satterfield that it was time to leave. Seay and the two appellants got into the van and left the Phoenix area. Appellants were arrested on June 11, 1982 in Clarinda, Iowa. Seay was arrested several days later in Tulsa, Oklahoma. Patricia Hay died of the gunshot wound. John Hay sustained a broken nose; Howell suffered a broken jaw.

Appellants filed separate appeals to this Court. On motion of the state, the appeals were consolidated. Each appellant raised two issues:

(1) Whether they were properly charged with first degree felony murder; and

(2) Whether their motion for a new trial was properly denied.

Appellant Hankins raised four additional issues:

(1) Whether his right to a speedy trial was violated;

(2) Whether the trial court erred by not granting a judgment of acquittal on all charges;

(3) Whether all the elements of felony murder were proven against him; and

(4) Whether his prosecution for first degree murder violated the fair notice or cruel and unusual punishment provisions of the United States or the Arizona Constitutions.

Appellant Satterfield raised two other issues:

(1) Whether certain medical testimony was properly admitted; and

(2) Whether he was denied effective assistance of counsel.

After appellant Hankins filed his brief with this Court, he filed a petition under Ariz.R.Crim.P. 32 with the superior court. The essence of that petition was ineffective assistance of counsel. After a hearing, his rule 32 petition was denied. He petitioned this Court to review that denial. Pursuant to Ariz.R.Crim.P. 31.4(b)(2), the review of the denial of the rule 32 petition was consolidated

with his direct appeal and will be discussed herein.

APPROPRIATENESS OF THE FELONY MURDER COUNT

Both appellants argue that, under the facts stated above, they should only have been charged with aggravated assault pursuant to A.R.S. § 13-1204(A)(3) (committing assault after entering the private home of another with the intent to commit an assault). Because aggravated assault is not one of the enumerated felonies in A.R.S. § 13-1105(A)(2), their argument continues, they should not have been charged with homicide pursuant to this state's felony murder statute. See also State v. Essman, 98 Ariz. 228, 235, 403 P.2d 540, 545 (1965) ("The felony-murder doctrine does not apply where the felony is an offense included in the charge of homicide. The acts of assault merge into the resultant homicide, and may not be deemed a separate and independent offense which could support a conviction for felony murder."). Appellants' premise is incorrect; they were properly charged with second degree burglary pursuant to A.R.S. § 13-1507(A) and, therefore, properly charged with felony murder.

A.R.S. § 13-1507(A) provides that:

"A person commits burglary in the second degree by entering or remaining unlawfully in or on a residential structure with the intent to commit any theft or any felony therein."

(Emphasis added). Aggravated assault, depending on the type, is either a class 3 or a class 6 felony. Thus, while a felonious assault does not itself warrant a felony murder charge, remaining unlawfully in a residence with the intent to commit an assault is a burglary and the burglary warrants a felony murder charge. State v. McGuire, 131 Ariz. 93, 638 P.2d 1339 (1981); see also State v. Miller, 110 Ariz. 489, 520 P.2d 1113 (1974).

Appellant Satterfield claims that for the prosecution to charge second degree burglary in this case instead of aggravated assault constitutes prosecutorial misconduct, overreaching, and misuse of the charging power. He cites no authority for this novel claim. It is clearly within the sound discretion of the prosecutor to determine whether to file charges and which charges to file. See State v. Murphy, 113 Ariz. 416, 555 P.2d 1110 (1976); State v. Spellman, 104 Ariz. 438, 454 P.2d 980 (1969). We find no abuse of discretion.

NEW TRIAL MOTION

Both appellants moved for a new trial pursuant to Ariz.R.Crim.P. 24.1 based on newly discovered evidence. The new evidence on which they based their motion was the anticipated testimony of Angela Seay. Seay was originally a co-defendant with the two appellants. During appellant Satterfield's presentation of his defense, Seay entered a plea of guilty to second degree murder and second degree burglary. Her plea agreement did not include an agreement to testify against either appellant. Both appellants called Seay to the witness stand but, claiming her privilege against self-incrimination, she refused to answer any questions. The next day, appellant Hankins' counsel informed the trial judge that Seay had informed him that she was then willing to testify. However, called before the trial judge, Seay reaffirmed her desire to exercise her constitutional right and refused to testify. After the trial concluded, Seay again expressed a willingness to testify and was allowed to do so at the hearing on the new trial motion. After testimony and argument, the motion for new trial was denied.

Motions to vacate a judgment or for a new trial based on newly discovered material facts must meet the standards of Ariz.R.Crim.P. 32.1(e). That rule provides that the trial court must consider:

"(1) The probability that such facts, if introduced would have changed the verdict, finding or sentence;

(2) The diligence which would have been required to discover and produce the evidence at trial; [and] Absent a showing of an abuse of discretion, this Court will not disturb the grant or the denial of a new trial motion. State v. Hickle, 133 Ariz. 234, 650 P.2d 1216 (1982).

(3) The promptness with which the petitioner has commenced a proceeding after discovery of such facts[.]"

Appellants argue that the trial court's denial of the new trial motion was error because of the high probability that Seay's testimony would have changed the verdict. They assert that her testimony would have provided valuable evidence concerning the parties' intent when they went to the Hay apartment and concerning her own intent when she assaulted Patricia Hay. We do not believe that appellants have demonstrated an abuse of discretion by the trial court. There is nothing to indicate that ...