State v. Herrera
| Decision Date | 04 March 1993 |
| Docket Number | No. CR-89-0371-AP,CR-89-0371-AP |
| Citation | 176 Ariz. 21,859 P.2d 131 |
| Parties | STATE of Arizona, Appellee, v. William Diaz HERRERA, Jr., Appellant. /PC. |
| Court | Arizona Supreme Court |
In October 1989, a Maricopa County jury convicted defendant William Diaz Herrera, Jr. of first degree felony murder, aggravated robbery, and kidnapping. The trial court sentenced defendant to death on the murder conviction, to 10 years' imprisonment on the aggravated robbery conviction, and to life imprisonment on the kidnapping conviction, the sentences to run consecutively.
Defendant's first degree felony murder conviction and death sentence are automatically appealed to this court. See A.R.S. § 13-4033; rules 26.15, 31.2(b) and 31.15(a)(3), Arizona Rules of Criminal Procedure. In addition, defendant timely appealed his aggravated robbery and kidnapping convictions and their respective sentences. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and A.R.S. §§ 13-4031, -4033, and -4035.
Based on our analysis below, we affirm defendant's convictions and sentences.
Defendant raises the following issues on appeal:
Trial Issues
1. Did the trial court err by failing to grant defendant's motion for judgment of acquittal on the felony murder charge?
2. Does Arizona's felony murder rule unconstitutionally presume a culpable mental state or did the trial court's felony murder instructions unconstitutionally allow the jury to presume a culpable mental state?
3. Did the trial court err by refusing to admit into evidence Ruben Herrera's out-of-court statement?
4. Did the trial court err by giving insufficient consideration to the effect on defendant of his alcohol use and his consumption of alcohol prior to the murder?
a. Did the trial court err by denying defendant's request for further medical tests pursuant to Ariz.R.Crim.P. 11?
b. Did the trial court err by denying defendant a competent psychiatrist to assist him with the preparation of his trial?
c. Did the trial court err by denying defendant's petition for post-conviction relief?
5. Did the trial court err by sentencing defendant to life imprisonment for his kidnapping conviction?
6. Did the trial court err by finding that this murder was committed in an especially heinous, cruel or depraved manner or by finding no mitigating circumstances sufficiently substantial to call for leniency?
On the afternoon of June 30, 1988, defendant went driving with his father William Diaz Herrera, Sr. (Senior), his brothers Mickel and Ruben, and Mickel's girlfriend Mary Cardenas. 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 overheated Duster to cool down. They parked the cars side by side facing diagonally into some trees and bushes on the side of the road and began drinking, talking, and listening to music. With the exception of Senior, each of the Herreras was under the age of 21. In his statement to police, defendant said that he consumed approximately one case of beer that day, as well as three-fourths of a bottle of wine.
At about 5:20 p.m., a motorist drove by and saw the two vehicles. Based on the positioning of the vehicles, he thought that an accident had occurred. Shortly thereafter, the motorist flagged down Deputy Sheriff Vernon Marconnet and told him what he had seen. Deputy Marconnet proceeded immediately to the scene.
Upon arriving at the scene, Deputy Marconnet radioed in that he had encountered a blue Chevy pickup, license 616-NE, a yellow Plymouth Duster, license PNA-877, and approximately 4 males. He parked his car behind the Duster and the pickup, got out of his car, and asked the men if there was a problem. Mickel responded that the Duster had overheated.
Deputy Marconnet then asked each of the Herreras for identification. Mickel replied that he could not show his identification because his wallet had been stolen. Similarly, defendant responded that he had lost his identification. Ruben complied with the request, and gave Deputy Marconnet his identification card.
When asked for his identification, Senior became belligerent, swore at Deputy Marconnet, told him that he had done nothing wrong, and that he knew the law and did not have to show any identification. Deputy Marconnet responded that if Senior did not want to show identification, he would have to "book" him. He then walked Senior over to the sheriff's car and placed him in the back seat.
After placing Senior in his car, Deputy Marconnet approached Ms. Cardenas, who was sitting in the pickup, and asked her to look for the vehicle's registration and to bring it to him when she found it. She immediately began searching through the glove compartment for the requested papers.
At trial, Mickel testified in his own behalf that while Deputy Marconnet was talking with Ms. Cardenas, defendant told Mickel that he was going to fight with Deputy Marconnet. Mickel also testified that defendant was "always resisting with cops and stuff." By his own admission, defendant was worried about being arrested and jailed because he had "tickets and stuff" and had jumped his Texas probation on burglary charges. He also admitted that they were originally just going to overpower Deputy Marconnet and handcuff him so they could get away.
Whatever the motivation or plan, when Deputy Marconnet walked back over to defendant and again requested his identification, defendant began to argue with him. The arguing quickly escalated into a scuffle. Defendant eventually grabbed Deputy Marconnet and hit him, causing him to stagger and fall "a little down." When Deputy Marconnet got back up, defendant hit him again. By this time, Ruben had let Senior out of the sheriff's car. Senior immediately joined the fray, kneeing or kicking Deputy Marconnet in the crotch and cussing at him.
At defendant's urging, Mickel managed to snatch Deputy Marconnet's revolver away from him and ordered him several times to get down on the ground. Defendant also managed to grab Deputy Marconnet's portable radio, which he threw at the deputy because "[his] dad told [him] to throw it...." The blow from the radio caused a deep gash on Deputy Marconnet's forehead.
At this point, Deputy Marconnet was supine, and Mickel was pointing the revolver down at him. Defendant told police that Deputy Marconnet had his hands in front of his face and was pleading, "oh, please, don't, don't." Mickel stated that Deputy Marconnet looked like he wanted to get up and his expression seemed to say, "Just put it down." Defendant estimated that Deputy Marconnet lay in this position for 18 seconds before the shot was fired. According to Mickel, up to three minutes elapsed from the time he stole the weapon to the time Deputy Marconnet was shot.
The trial produced conflicting stories about what happened next. Ms. Cardenas testified that as she was leaning over in the pickup looking through the glove compartment, she heard Mickel say "freeze." She immediately sat up and saw him pointing the gun at Deputy Marconnet while defendant shouted, "shoot him, shoot him." While her view was somewhat limited because of the positioning of the vehicles, Ms. Cardenas testified that she saw Mickel shoot Deputy Marconnet. Mickel's first two interviews with investigators on July 1, 1988, are largely consistent with this version of the shooting.
During his third interview and at trial, however, Mickel's story changed. He testified that after he refused to shoot Deputy Marconnet, Senior took the gun from Mickel, shot Deputy Marconnet, and then handed the gun back to Mickel, telling him to "get rid of it." When questioned about the conflicting stories, Mickel testified that during his first two interviews, "I didn't know what I was thinking; I was confused."
Under either version of the crime, defendant's actions are not disputed. Defendant ultimately admitted to police that he said "shoot him" either once or twice before the shot was fired. Both Ms. Cardenas and Mickel substantiate that defendant urged Mickel to shoot Deputy Marconnet. Further, there was no dispute at trial about defendant's active role in the crime. He admits to hitting and fighting with the deputy, and then taking and throwing the deputy's radio at him.
After the shooting, the family fled the crime scene in the two vehicles. Defendant absconded with Ruben and Senior in the Duster, and headed toward Casa Grande. As they drove along the interstate, a tire blew. Defendant and Ruben then separated from Senior and spent the night wandering before going to the Casa Grande hospital. From there, defendant called the police and turned himself in.
Physical evidence adduced at trial shed further light on the events surrounding the murder. Consistent with statements and testimony that Ruben let Senior out of the sheriff's car, investigators found Ruben's fingerprint on the right rear door of the car. Investigators also confirmed that a scuffle had taken place by reference to numerous footprints and scuff marks found at the scene and Deputy Marconnet's portable radio found 12 to 13 feet away from his body in some grass or brush. Similarly, Deputy Marconnet's clothes were dirty and disheveled, his metal name plate was bent, and his sunglasses were on the ground about 8 feet away from his body.
The medical examiner testified that Deputy Marconnet died from a gunshot to the right eye at close range. He also found powder burns on Deputy Marconnet's hands, which indicated that they were in front...
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