State v. Harding

• Decision Date: 06 September 1983
• Docket Number: No. 5587,5587
• Citation: 670 P.2d 383,137 Ariz. 278
• Parties: STATE of Arizona, Appellee, v. Donald Eugene HARDING, Appellant.
• Court: Arizona Supreme Court

Page 383

670 P.2d 383

137 Ariz. 278

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

No. 5587.

Supreme Court of Arizona In Banc.

Sept. 6, 1983.

Rehearing Denied Oct. 12, 1983.

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

William Lane, Tucson, for appellant.

CAMERON, Justice.

The defendant appeals his first degree murder convictions and consecutive sentences of death, which were imposed consecutively to sentences for two convictions of robbery, two convictions of kidnapping and one conviction for theft of property valued in excess of $1000. We have jurisdiction under A.R.S. § 13-4031 and Ariz. Const. art. 6 § 5(3).

The defendant raises fifteen issues in this appeal, which may be grouped into three categories. The first is pre-trial issues:

1. Was the defendant denied effective assistance of counsel during the pre-trial period?

2. Did the trial court err in denying the defendant's motion to recuse the prosecutor?

3. Did the trial court err in its method of determining if the defendant was competent to waive his right to counsel?

4. Did the defendant make a proper waiver of his right to counsel?

5. Did the trial court err in denying the defense motion to suppress evidence based on a policeman's investigation of the license plate of the automobile the defendant drove when arrested?

6. Did the trial court err in denying the defense motion to suppress certain post-arrest statements made by the defendant?

The second category of issues raised by the defendant relates to decisions of the court during trial, including:

7. Was it error to keep the defendant in leg shackles during the trial?

8. Was it error to admit the testimony of a former robbery victim of the defendant?

9. Was it error to admit into evidence the items found in the car that defendant was driving at the time of his arrest?

10. Was it error to admit some 71 large color photographs of the victims into evidence?

11. Was it error to order the defendant's advisory counsel to submit jury instructions over the objection of the defendant?

The final category of issues concerns the validity of our method of determining the propriety of the death penalty, including:

12. Does the death penalty statute violate the eighth amendment's prohibition against cruel and unusual punishment?

13. Is it improper for any entity other than a jury to determine aggravating and mitigating circumstances?

14. Is it unconstitutional to require the defendant in a capital case to prove mitigation?

15. Is our death penalty statute void-for-vagueness for lack of definition of the standard "especially cruel, heinous and depraved"?

The facts necessary for a determination of the issues presented here are these. Robert A. Wise, district supervisor for KAR Car Products Incorporated, left Mesa, Arizona on 24 January 1980 to meet with Martin L. Concannon, the corporation's area sales representative in Tucson. Wise checked into a Tucson motel that evening and on the following day accompanied Concannon on sales calls in southern Arizona. The two men returned to Wise's motel in the late afternoon of 25 January 1980.

Their bodies were discovered in Wise's motel room the following morning. Robert Wise was found on the floor next to the bed, tethered to a bedpost by a restraint wrapped around his neck. He had been bound with his hands behind his back, with his ankles tied together and secured to the hand ligatures. Wise had been shot once in the chest from a few inches distance with a .25 caliber pistol. This wound perforated his spinal cord and was the cause of death. In addition, he had been shot in the left temple from a distance of no more than three inches. He had been further bludgeoned with a motel lamp, causing abrasions of the head and skull, broken teeth and multiple fractures of the right side of the jaw. Chips broken from the wooden lamp were removed from this victim's right temple and mouth.

Mark Concannon's body was found in the bathroom area of the room, head resting on a pillow. Like Wise, he had been shot in the left chest region at close range, and the chest wound similarly perforated his spinal cord. Like Wise, Concannon had been shot near the temple from no more than three inches distance. Unlike Wise, however, Concannon did not die instantaneously from these wounds. According to the medical examiner, this victim lived a short time after being shot. The examiner testified to three other findings concerning Concannon. He found hemorrhages at the base of Concannon's neck caused by bindings secured there. Second, he found evidence of "defensive wounds" in the form of black and blue marks over Concannon's knuckles of the sort sustained while trying to ward off blows. Finally, he had removed a pair of calf length men's dress stockings from the mouth of this victim, socks which had been pushed to the back of his throat, thereby obstructing his breathing passage.

The two victims had been bound and otherwise restrained with dozens of strips of bedding material, shoelaces and their own clothing before their executions. Their bodies were covered with blankets. Robert Wise's briefcase, containing his credit cards, was removed from the motel. Mark Concannon's borrowed Oldsmobile was taken from the motel parking lot.

At 8:40 p.m. on 25 January 1980, the defendant appeared at the Mesa home of Robert Wise. The defendant carried in one hand Wise's business card, and after falsely identifying himself, inquired whether "Bob" Wise was at home. After a brief conversation with the victim's wife, the defendant departed.

At about 5:30 p.m. on 26 January 1980, the defendant drove Concannon's borrowed Oldsmobile into a reserved parking lot on the campus of Northern Arizona University in Flagstaff, Arizona. The campus policeman monitoring use of the lot advised the defendant that it was a restricted lot and directed him to another location. During their conversation, the officer observed that the defendant was wearing two jackets, and that while he was driving a car bearing Ohio license plates, the defendant seemingly spoke with a southern accent. These circumstances aroused the officer's suspicion, and noting the license number of the vehicle, the officer called his police dispatcher and asked him to check the license number. As the defendant drove away from the encounter, the dispatcher reported that the car was stolen and was possibly involved in two homicides in Tucson. With the aid of two other officers, the Oldsmobile was stopped, and the defendant arrested and searched. The officer removed a .25 caliber automatic pistol from the pocket of one jacket worn by the defendant, and seized a black identification case containing one badge inscribed "Security Guard," another inscribed "Special Officer," a Texas driver's license and a partial (cut in half) Oklahoma driver's license, both issued to Ronald Gene Svetgoff. The first officer asked the defendant if he was Svetgoff, and he replied that he was, and explained the lack of resemblance to the license picture owing to changes in hairstyle and weight. The automobile was towed to storage and the defendant held. Tucson authorities flew to Flagstaff where they inventoried the contents of the Oldsmobile and arranged for the defendant's return to Pima County.

The defendant was held in custody until his trial, which began 21 April 1982. During October of 1980, the defendant committed an assault on a fellow jail inmate, and was convicted on 30 July 1981 of Dangerous or Deadly Assault by Prisoner, a felony for which he was sentenced to life imprisonment without possibility of parole for twenty five years. See A.R.S. § 13-1206. As to the charges in the instant case, the defendant insisted on serving as his own counsel, and the trial court ordered a public defender to act as advisory counsel. Prior to the trial the defendant threatened specifically to harm his advisory counsel, and generally threatened the participants in the trial. As a result of these threats, the court ordered that the defendant be shackled with leg irons for the duration of the trial. The defendant at trial conducted no direct examination, asked only one question on cross examination, and made no jury arguments.

At the close of the evidence, over strenuous objection by the defendant, the court ordered advisory counsel to submit proposed jury instructions. The defendant discarded the copy of these instructions provided him by advisory counsel. The trial court considered the advisory counsel-submitted instructions, and on its own motion, with the defendant's assent, added an instruction on the defendant's right not to testify. The defendant was also given an additional day to submit instructions of his own design, but he failed to do so and his request for a further continuance for this purpose was denied. His convictions for first degree murder, A.R.S. § 13-1105, robbery, A.R.S. § 13-1904, kidnapping, A.R.S. § 13-1304, and theft, A.R.S. § 13-1802, followed.

At the defendant's sentencing hearing, the trial court invited him to present factors in mitigation, and offered to allow the defendant additional time to do so. The defendant declined, and the trial court thereafter found as aggravating circumstances that the defendant had a prior felony conviction for the deadly assault for which life imprisonment was imposable; that that same crime involved the use of violence; that the defendant committed the instant crimes for pecuniary gain; and that the instant murders were committed in an especially cruel, heinous or depraved manner. The trial court found no mitigating factors sufficient to overcome the aggravating factors and sentenced the defendant to death penalties for the murders of Wise and Concannon to be served consecutively one to the other, both to be served consecutively to the sentences imposed for the robberies and kidnappings and the theft of Concannon's...