State v. Herrera

• Decision Date: 04 March 1993
• Docket Number: No. CR-89-0372-AP,CR-89-0372-AP
• Citation: State v. Herrera, 174 Ariz. 387, 850 P.2d 100 (Ariz. 1993)
• Parties: STATE of Arizona, Appellee, v. Mickel William HERRERA, Appellant.
• Court: Arizona Supreme Court

Page 100

850 P.2d 100

174 Ariz. 387

STATE of Arizona, Appellee, v.Mickel William HERRERA, Appellant.

No. CR-89-0372-AP.

Supreme Court of Arizona, In Banc March 4, 1993.

[174 Ariz. 390] Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Crim. Div., Phoenix, for the State.

John C. Williams, Prescott, for appellant.

OPINION

JAMES DUKE CAMERON, Justice(Retired).

In October 1989, a Maricopa County jury convicted appellantMickel William Herrera(defendant) of first degree felony murder, aggravated robbery, and kidnapping.The trial court sentenced defendant to death on the murder conviction, to 21 years' imprisonment on the kidnapping conviction, and to 10 years' imprisonment on the aggravated robbery conviction, with the sentences to run consecutively.In this automatic appeal, defendant challenges his murder conviction and death sentence.SeeA.R.S. § 13-4033;rules 26.15,31.2(b), and31.15(a)(3),Arizona Rules of Criminal Procedure.We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), andA.R.S. §§ 13-4031, -4033, and -4035.For the following reasons, we affirm defendant's convictions, but reduce the death sentence to life imprisonment without possibility of parole for 25 years.

ISSUES PRESENTED

The following issues are raised in this appeal:¹

1.Did the trial court err by denying defendant's motion for judgment of acquittal on the felony murder charge?

2.Did the trial court err by refusing to sever defendant's trial from that of his brother, William Herrera, Jr., and later allowing the introduction of Junior's post-arrest statement at trial?

3.Did the trial court err by excluding the post-arrest statement of defendant's brother, Ruben Herrera?

4.Did the trial court err by overruling defendant's objection to the prosecutor's closing argument?

5.Was the trial court precluded from making the Enmund finding once the jury convicted defendant of felony murder rather than premeditated murder?

6.Did the trial court err by finding that defendant murdered the victim in an "especially heinous, cruel or depraved manner"?

7.Did the trial court err by determining that defendant's age, a statutory mitigating circumstance, was not sufficiently substantial to call for leniency?

8.Did the trial court err by finding that defendant's dysfunctional family background, a non-statutory mitigating circumstance, was not sufficiently substantial to call for leniency?

9.Did the trial court err by failing to find the existence of the mitigating circumstance of duress, A.R.S. § 13-703(G)(2)?

10.Did the trial court improperly fail to consider defendant's prior work history and lack of a prior felony record as non-statutory mitigating circumstances?

FACTS AND PROCEDURAL HISTORY

On the afternoon of June 30, 1988, defendant and his girlfriend, Mary Cardenas, went driving with his father, William Diaz Herrera, Sr.(Senior), and defendant's brothers, William Diaz Herrera, Jr.(Junior) and Ruben Herrera.The family travelled in two cars, a gold Plymouth Duster and a blue Chevrolet pickup.After purchasing beer and wine, they drove to a relatively isolated dirt road in southwest Phoenix where they stopped to allow the Duster, which had begun to overheat, to cool down.They parked the cars parallel to each other facing into some trees and shrubbery on the side of the road and began drinking, listening to music, and talking.With the exception of Senior, each of the Herreras was under the age of 21.

An hour passed without incident before a motorist, seeing the positioning of the two vehicles and believing that an accident had occurred, flagged down Sheriff's Deputy Vernon Marconnet(the deputy) and told him about the possible accident.When the deputy arrived at the Herreras' location, he approached the family and asked if there was a problem.Defendant responded that the Duster had overheated.The deputy then asked everyone for identification.Ruben produced an I.D., but defendant told the deputy that he had no I.D. because his wallet had been stolen; Junior also said that he had lost his I.D.When the deputy asked Senior for an I.D., Senior became belligerent and stated that he knew the law, that he had done nothing wrong, and that he"wasn't going to show any fucking I.D."The deputy responded that if Senior refused to show his I.D., he would have to "book" Senior.The deputy then walked Senior over to the patrol car and placed him in the back seat.

Deputy Marconnet next asked Ms. Cardenas, who was sitting in the pickup, for the vehicle's registration.About this time, Junior, who had jumped his burglary probation in Texas and was worried about being arrested, told defendant that he was going to fight the deputy.When the deputy again approached Junior and requested his I.D., Junior began to argue with him.At some point, the deputy requested a police backup.Junior's argument with the deputy quickly escalated into a scuffle, and Junior grabbed the deputy and hit him a few times.By this time, Ruben had released Senior from the patrol car, and Senior joined the fray, kneeing or kicking the deputy in the groin and cussing at him.At Junior's urging, defendant wrestled the deputy's revolver away from him and ordered him two or three times to get down on the ground.Junior then threw the deputy's portable radio, which he had grabbed during the scuffle, at the deputy and caused a severe laceration in the deputy's forehead.

There is conflicting evidence about what happened next.Ms. Cardenas testified at trial that as she was leaning over in the pickup looking through the glove compartment for the vehicle's registration papers, she heard defendant say "freeze."She immediately sat up and saw defendant point the gun at Deputy Marconnet while Junior shouted, "shoot him, shoot him."Although her view was somewhat limited because of the positioning of the vehicles, Ms. Cardenas testified that she saw defendant shoot the deputy.

The information provided by defendant in his first interview with investigators is largely consistent with Ms. Cardenas' version of the shooting.Defendant admitted that he held the deputy's gun on him for up to two or three minutes.During this time, the deputy lay on his back and, according to Mickel, appeared to want to say, "Just put it down."But when Senior and Junior shouted "shoot him, shoot him,"defendant shot the deputy.At his second interview, defendant first claimed that Junior shot the deputy, but then stated that he himself shot the deputy.

During his third interview and at trial, however, defendant claimed that when Senior and Junior told him to shoot the deputy, he refused.Senior then took the gun from defendant, shot the deputy, and handed the gun back to him, telling him to "get rid of it."When questioned about the conflicting stories, defendant testified that during his first two interviews, "I didn't know what I was thinking; I was confused."

After the shooting, the family fled the crime scene in the two vehicles.Junior, Ruben and Senior fled in the Duster toward Casa Grande.As they drove along the interstate, a tire blew out.Junior and Ruben then separated from Senior and spent the night wandering in the desert before going to the Casa Grande hospital, where they turned themselves in.Defendant and Ms. Cardenas fled in the pickup truck.They immediately picked up defendant's brother, Tony Huerta, from work, and defendant told him, "I shot a cop today."After returning to the family's apartment, defendant hid the deputy's gun in some bushes.Later that night, defendant checked into a motel, where he was arrested.

When backup officers arrived at the scene, they found Deputy Marconnet's body.He had been shot once through the right eye, he had a gash on his left forehead, dirt was embedded in the buttocks, crotch, and leg areas of his trousers, and his metal name plate was bent.The medical examiner determined that the deputy died from a gunshot to the head at close range.He also found powder burns on the deputy's hands, which indicated that his hands were in front of his face when the gun was fired.

Additional physical evidence at the scene indicated that a scuffle preceded the deputy's death.Investigators found several scuff marks on the ground, and they located the deputy's sun glasses approximately 8 feet from his body.The deputy's portable police radio was found in some grass or brush about 12 to 13 feet from his body.Ruben's fingerprint was positively identified on the right rear door of the deputy's patrol car.

Defendant, Junior and Senior were each indicted on one count of first degree murder, one count of aggravated robbery, and one count of kidnapping.The trial court severed Senior's trial from that of defendant and Junior, who went to trial together before the trial of Senior.Senior was convicted of first degree felony murder and kidnapping, and he was sentenced to death and a lengthy prison term.Ruben also faced murder, aggravated assault, and kidnapping charges.He pleaded guilty to the kidnapping charge in exchange for his testimony at Senior's trial, and he was sentenced to 10 years' imprisonment.

At the close of the evidence at defendant and Junior's joint trial, the jury was instructed on both felony and premeditated first degree murder.The felony murder charge was predicated upon aggravated robbery and/or kidnapping.The jury convicted both defendant and Junior of first degree felony murder, aggravated robbery, and kidnapping.The trial court sentenced defendant to death for the murder, to 21 years' imprisonment for the kidnapping, and to 10 years' imprisonment for the aggravated robbery.The trial court sentenced Junior to death for the murder, to life imprisonment for the kidnapping, and to 10 years' imprisonment for the aggravated robbery.

With regard to defendant's death sentence, the trial court found the existence of one aggravating circumstance: the murder was committed in an especially heinous, cruel or...