State v. Herrera
| Decision Date | 04 March 1993 |
| Docket Number | No. CR-89-0370-AP,CR-89-0370-AP |
| Parties | STATE of Arizona, Appellee, v. William Diaz HERRERA, Sr., Appellant. |
| Court | Arizona Supreme Court |
In November 1989, a Maricopa County jury convicted William Diaz Herrera, Sr. (defendant) of kidnapping and first degree felony murder. Based on the circumstances of the crimes, the trial court sentenced defendant to consecutive sentences of death on the first degree felony murder conviction and 21 years' imprisonment on the kidnapping conviction.
The first degree felony murder conviction and death sentence are automatically appealed to this court. Defendant timely appealed his kidnapping conviction and prison sentence. See A.R.S. § 13-4033 and rules 26.15, 31.2(b) and 31.15(a)(3), Arizona Rules of Criminal Procedure.
We affirm defendant's convictions and sentences and have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and A.R.S. §§ 13-4031, -4033, and -4035.
Defendant raises the following issues on appeal:
1. Did the indictment charging defendant with kidnapping violate his right to due process?
2. Did the trial court's kidnapping instruction to the jury violate defendant's right to a unanimous verdict?
3. Was defendant improperly convicted of first degree felony murder when the underlying felony was the kidnapping of the murder victim?
4. Was the trial court's finding in aggravation that the murder was committed in an extremely heinous, cruel or depraved manner improperly based on conduct by persons other than defendant?
5. Was the trial court's finding in aggravation that the murder was committed in an extremely heinous, cruel, or depraved manner based on a misapplication of the aggravation statute?
6. Was the trial court's finding that no mitigating circumstances were sufficiently substantial to call for leniency based on a misapplication of the mitigation statute?
In the midafternoon of June 30, 1988, defendant, his sons William, Jr. (Junior), 19, Mickel, 18, and Ruben, 15, and Mickel's girlfriend, Mary Cardenas, went to a desert area in southwest Phoenix to drink beer and wine, talk, and listen to music. They had driven two vehicles, a yellow/tan Plymouth Duster and a dark blue four-wheel-drive Chevrolet pickup. The vehicles were nosed into some trees and shrubbery on the shoulder of a dirt road that ran east and west along the south bank of a fairly narrow irrigation canal. A similar dirt road ran along the canal's north bank.
At about 5:20 that afternoon, a motorist drove by the two vehicles. It looked to him that one vehicle had forced the other off the road. Shortly after driving by the vehicles, the motorist noticed a fully-marked sheriff's car coming his direction. He flagged down the sheriff's car and directed Deputy Sheriff Vernon Marconnet to the vehicles. Deputy Marconnet proceeded immediately to the scene.
At 5:23 p.m., Deputy Marconnet radioed in that he had encountered a blue Chevy pickup, license 616-NE, a yellow Plymouth Duster, license PNA-877, and approximately four males. After radioing in and parking his car behind the Duster and the pickup, Deputy Marconnet, a big, strong man dressed in full uniform, got out of his car and asked the men for identification.
Ruben complied and gave Deputy Marconnet his identification card. Defendant, however, refused to comply and cussed at Deputy Marconnet who then put him in the back seat of the sheriff's car.
After placing defendant in his car, Deputy Marconnet told Ruben to stand close to the back of the sheriff's car; he did so. Deputy Marconnet then went around to the passenger side of the pickup and asked Ms. Cardenas, who was sitting in the driver's seat, to provide the vehicle registration. She immediately stretched across the pickup's bench seat and began looking through the glove compartment for the registration.
Three witnesses testified as to what happened next. The first was defendant's son, Ruben Herrera. Ruben testified that after Deputy Marconnet asked Ms. Cardenas to get him the pickup's registration, he went around to the driver's side of the Duster and took the keys out of the ignition. He then went to the back of the Duster, opened the trunk, looked in, and, apparently finding nothing unusual, closed the trunk. Deputy Marconnet then looked in the bed of the pickup, again apparently finding nothing unusual.
Deputy Marconnet next began asking Junior and Mickel questions, and Junior started cussing at him. At that time, defendant yelled to Ruben, both in Spanish and in English, to open the door of the sheriff's car. Ruben made sure Deputy Marconnet was not looking, and then opened the back door on the passenger side of the sheriff's car and let defendant out. Defendant immediately "went towards the officer." Ruben stayed where he was and watched to "see if another officer was coming."
While Ruben was keeping watch, he heard something that sounded like "somebody hit somebody." He turned around and saw defendant and Junior "fighting with the officer." Ruben testified that he saw defendant strike the officer with his knee. After seeing this, Ruben turned around and "looked again to the road." He then turned back around, took a few steps closer, and saw Deputy Marconnet "already on the floor." At some point during this scuffle, Deputy Marconnet called for a backup.
Although Ruben did not see anyone with Deputy Marconnet's gun, he heard a loud command, "Shoot him," and testified that it was defendant's voice. He also heard Junior say, "Shoot him" after that. Ruben testified that after a "kind of little long" while, he heard the sound of an explosion, like a gun going off. After that, everybody said, "Let's go."
Mickel and Ms. Cardenas fled in the pickup. Junior told Ruben to drive, so Ruben went to the driver's side of the Duster where he found the keys on the ground close to Deputy Marconnet's leg. He picked up the keys, jumped over Deputy Marconnet's body, backed the Duster into the sheriff's car, and then he, Junior and defendant fled.
While driving south toward Tucson, Ruben heard defendant say, "Lo mate" ("I killed him"). Later, the Duster had two blowouts, so Ruben, Junior and defendant began walking through the desert. After a while, defendant told his sons he could not go on. Ruben and Junior gave defendant a hug and a kiss on the cheek and kept walking toward Casa Grande.
Debra Shawver, who was driving east along the dirt road on the canal's north bank at approximately 5:30 that afternoon, also testified. Shawver, a registered nurse, was on her way home with her two children when she noticed the sheriff's car, the blue pickup and the Duster parked just across the canal. She initially thought an accident had occurred.
As a nurse, and expecting to see an accident, Shawver was quite observant. She testified that she could clearly see into the rear window of the sheriff's car, but that she saw no one in the back of the car. What she did see, however, was "[one] door open on the patrol car on the passenger side." She could not tell whether it was the front door or the back door, but she thought it was the front door. She noticed that the deputy was not in his car, "he was standing out by the pickup truck."
Shawver testified that Deputy Marconnet "was standing with his hands outstretched and he had something in his hand that was silvery." Shawver next saw "a couple of heads, and there was one by the patrol car also toward [Deputy Marconnet's] left, and then there was another gentleman that was standing facing him with his arms also outstretched with something black in his hand." She thought both things were guns. She also thought the men were Mexican or Indian.
Shawver later saw "[Deputy Marconnet's] arms [go] down in front of him down to his left side and [Deputy Marconnet] sort of stagger...." After observing these events, Shawver drove to a phone, called 911, and reported what she had seen. She then returned to the scene to offer help if necessary. There she met investigators, who were already investigating the murder.
Ms. Cardenas was still looking through the glove compartment for the pickup's registration when she heard the command "Freeze" spoken very loudly. She immediately sat up and saw Mickel holding Deputy Marconnet's gun with both hands straight in front of him, pointing the gun at the deputy. She also saw that Junior had grabbed the radio from Deputy Marconnet. Sometime later, Junior threw the radio at the deputy and struck him on the forehead.
From where Ms. Cardenas sat, her view was limited, but she later saw Deputy Marconnet lying on the ground and Mickel still holding the gun on him. Deputy Marconnet "had his hand over his face." Ms. Cardenas also saw Junior and the pink of the shirt Ruben was wearing. She did not see Ruben himself, nor did she see defendant.
As Ms. Cardenas watched, she was hoping that Mickel "would not do nothing." Ultimately, however, "Mickel shot the officer." She saw the gun discharge.
After the shot, Ms. Cardenas saw Mickel, Junior and Ruben. Mickel was running to the pickup and told Ms. Cardenas to turn it on. She also heard Junior tell Ruben to get defendant out of the car.
As Mickel and Ms. Cardenas were speeding away in the pickup, Mickel told her to look back. When she did so, she saw defendant and Ruben running toward the Duster.
After parting company with Junior and Ruben in the desert near Casa Grande, defendant hitch-hiked back to Phoenix. There he telephoned his friend Robert Martinez. He confided in Martinez as related by Martinez:
Defendant: We messed up.
Martinez: What do you mean by "We messed up?"
Defendant: Me and my boys messed up.
Martinez: What do...
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