State v. Harding, 5742

• Decision Date: 30 May 1984
• Docket Number: No. 5742,5742
• Citation: State v. Harding, 141 Ariz. 492, 687 P.2d 1247 (Ariz. 1984)
• Parties: STATE of Arizona, Appellee, v. Donald Eugene HARDING, Appellant.
• Court: Arizona Supreme Court

Page 1247

687 P.2d 1247

141 Ariz. 492

STATE of Arizona, Appellee, v. Donald Eugene HARDING, Appellant.

No. 5742.

Supreme Court of Arizona, In Banc.

May 30, 1984.

Robert K. Corbin, Atty. Gen. by William J. Schafer III, Diane M. Ramsey and Jack Roberts Asst. Attys. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender by H. Allen Gerhardt, Deputy Public Defender, Phoenix, for appellant.

HAYS, Justice.

Appellant, Donald Harding, was convicted of first degree murder, A.R.S. § 13-1105; robbery, A.R.S. § 13-1902; and theft, A.R.S. § 13-1802. Appellant was sentenced to death for the murder, five years imprisonment for the robbery, and ten years imprisonment for the theft. The robbery and theft sentences were to run concurrently to each other, but consecutively to the murder sentence. The murder sentence was to run consecutively to sentences imposed upon appellant in Pima County cause numbers CR-04694 (conviction of "Dangerous or deadly assault by prisoner," A.R.S. § 13-1206) and CR-02597 (convictions of two counts of first degree murder, two counts of robbery, two counts of kidnapping, and theft, all affirmed by this court, see State v. Harding, 137 Ariz. 278, 670 P.2d 383 (1983)). Appellant's case was automatically appealed to this court. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. §§ 13-4031 and 13-4035. We affirm.

In addition to our independent review of the aggravating and mitigating circumstances found by the trial judge, our proportionality review, and our review of the record for fundamental error, seven issues confront us:

1. whether appellant's right to a speedy trial pursuant to 17 A.R.S. Rules of Criminal Procedure, rule 8, was violated, and if so, whether reversal is required;

2. whether prospective jurors were improperly excused;

3. whether evidence of a prior bad act was improperly admitted;

4. whether a gun was improperly admitted;

5. whether the trial court erred in ruling that appellant could be impeached with prior convictions;

6. whether a photograph was improperly admitted; and

7. whether Arizona's death penalty statute is unconstitutional. Between 1:00 and 1:30 a.m. on January 25, 1980 the victim, Allan Gage, checked into the Mission Motel on East Van Buren in Phoenix. At 11:00 that morning the hotel manager entered Gage's room and found Gage's body. Police officers arrived and found that Gage's ankles and wrists had been bound with adhesive tape and his ankles tied to his wrists behind his back in a "hog-tie" manner with drapery cord burned off a drape in the room. The tape used to bind his ankles and wrists belonged to the victim (being used to secure a colostomy bag to his body). Gage was lying on the floor, with his face on a pillow. The victim had been gagged: a washcloth was stuffed in his mouth; tape was placed over his mouth, keeping the washcloth in place; and strips of a torn pillowcase were placed around the face area, apparently over the tape and over Gage's eyes. There was no sign of a struggle in the room. The medical examiner testified that the washcloth was stuffed far enough down his throat that Gage could not breathe even through his nose. Gage died slowly from asphyxiation because of the gagging. Gage's wallets (he carried two) and car were missing.

Appellant was arrested in Flagstaff on January 26. Police found Gage's wallet and identification in a suitcase in the car appellant was driving. Gage's car was found on January 27 in the La Quinta Hotel parking lot in Tucson.

I. SPEEDY TRIAL

Appellant argues that rule 8.1(e) of the Arizona speedy trial rules, 17 A.R.S. Rules of Criminal Procedure, was violated, requiring reversal of his convictions. Appellant contends that the state's request for a hearing to suspend the rules was untimely filed, that the hearing was untimely held, and that the trial court suspended the rule before it was authorized to do so.

When appellant was arraigned, rule 8.1(e) provided in relevant part that "[w]ithin five days ¹ after the arraignment in Superior Court either party may apply in writing to the court for a hearing to establish extraordinary circumstances requiring the suspension of Rule 8 in a particular case." In the present case appellant was arraigned on May 21, 1980. The state on May 29, 1980 filed a motion for a hearing to establish extraordinary circumstances. Thus, as appellant contends, the state's motion was untimely. The court nevertheless held the requested hearing and ultimately suspended rule 8.

We hold that this violation of rule 8 does not require reversal of appellant's convictions. Technically, the state's request for a hearing should have been filed three days earlier. However, before reversal is required because of such a violation, the appellant must show that he was prejudiced by the delay. See State v. Zuck, 134 Ariz. 509, 515, 658 P.2d 162, 168 (1983). Appellant in this case has not alleged any prejudice. Further, after examining the circumstances, we do not find any prejudice to appellant, such as loss of testimony or other evidence, caused by this three-day delay. This is not the type of extended delay as occurred in State v. Tucker, 133 Ariz. 304, 651 P.2d 359 (1982).

Appellant next contends the hearing was untimely held. The pertinent part of rule 8.1(e) requires that "[w]ithin five days of the receipt of the application the court shall hold the hearing and make findings of fact." On May 29, 1980 the state filed its application for a hearing. On May 30, 1980 the court set the hearing for June 3, 1980, within the five-day limit. On June 3, 1980 the appellant was absent from the courtroom; he was being held in Pima County for two murders and had not been transported to Maricopa County for the rule-8 hearing. The court then continued the hearing to June 13, 1980, at which time the hearing was held.

The hearing was set to be held within the five-day trial limit, but was not held on the date set solely because appellant was absent. The trial court prudently extended the hearing date to a time appellant would be present. We find no error.

Finally, appellant contends the court suspended the rule before it was authorized to do so. The pertinent part of rule 8.1(e) requires the trial court to make findings of fact, then transmit those findings to the chief justice of the Arizona Supreme Court who may approve or decline to approve them. If the findings are approved, upon motion of either party, the trial court may suspend rule 8. Appellant alleges the trial court suspended the time limits before any findings of fact were approved by the chief justice, and urges that this procedural defect invalidates the suspension.

Upon close inspection, however, it appears that the trial court did not actually suspend the time limits before the chief justice approved the findings of fact. In a minute entry, the trial court did say "IT IS ORDERED granting the State's Motion for Suspension of Rule 8 Time Limits." In the same minute entry, however, the court also said "IT IS ORDERED that the Clerk of the Court, pursuant to said Rule, transmit the Court's findings to the Chief Justice of the Supreme Court of Arizona for determination with said Rule." The latter statement indicates that the court knew it could not suspend rule 8 without first submitting its findings to the chief justice. Thus, although the court said it was suspending rule 8, all it really did was delay further action until the chief justice examined the findings of fact. This misuse of language by the trial court was nonprejudicial technical error, not requiring reversal. See Ariz. Const. art. 6, § 27.

II. JURY EMPANELING

During jury voir dire the court stated the following:

If the Defendant, Mr. Harding, is found guilty of First Degree Murder, the Court--that is, the Judge--without any verdict or advice from the Jury then must determine the punishment.

The Court would like to know at this time whether any of you on the panel entertain conscientious or religious opinions, scruples or feelings concerning the death penalty, which would prevent you from finding the Defendant guilty, even if you were satisfied beyond a reasonable doubt from the evidence that the Defendant is, in fact, guilty of First Degree Murder?

Those who answered the question affirmatively were excused.

It is proper to inquire whether a prospective juror's attitude concerning the death penalty would prevent him from making an impartial decision. See State v. Clark, 126 Ariz. 428, 431, 616 P.2d 888, 891, cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980). Further, the question quoted above is identical in concept to the question we approved in State v. Smith, 123 Ariz. 231, 137-38, 599 P.2d 187, 193-94 (1979).

Nevertheless, appellant argues that this question posed to the prospective jurors did not probe deeply enough and that the trial court thereby "erred in failing to question the jurors further to determine if their oath would overcome any hesitancy on their part to be fair." We note, however, that the question was very clear, and that the only jurors excused were those that clearly answered the question affirmatively. Under the circumstances, any further questioning was unnecessary.

III. PRIOR BAD ACT

The third alleged error is that the trial court improperly admitted testimony of Ronald Svetgoff, who was robbed by appellant about one month before the incident at issue. Appellant contends that introduction of Svetgoff's testimony brought to the jury's attention other bad acts in contravention of 17 A.R.S. Arizona Rules of Evidence, rule 404(b). That rule states:

Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or...