State v. Hinchey

• Decision Date: 31 July 1990
• Docket Number: No. CR-87-0317-AP,CR-87-0317-AP
• Citation: 799 P.2d 352,165 Ariz. 432
• Parties: STATE of Arizona, Appellee, v. John Albert HINCHEY, Appellant.
• Court: Arizona Supreme Court

Page 352

799 P.2d 352

165 Ariz. 432

STATE of Arizona, Appellee, v. John Albert HINCHEY, Appellant.

No. CR-87-0317-AP.

Supreme Court of Arizona, In Banc.

July 31, 1990.

Robert K. Corbin, Atty. Gen., Jessica Gifford Funkhouser, Chief Counsel, Crim. Div., and Diane M. Ramsey, Asst. Atty. Gen., Phoenix, for appellee.

Dean W. Trebesch, Maricopa County Public Defender, Paul Klapper and Mary Lynn Bogle, Maricopa County Deputy Public Defenders, Phoenix, for appellant.

GORDON, Chief Justice.

John A. Hinchey (defendant) appeals from his conviction for first-degree murder and from imposition of the death penalty. Following a jury trial, the trial court sentenced defendant to an aggravated term of 21 years for attempted first-degree murder and imposed the death penalty for first-degree murder. We have jurisdiction pursuant to article 6, § 5(3) of the Arizona Constitution and A.R.S. § 13-4031. We affirm the conviction but remand for resentencing.

FACTS

In the early-morning hours of September 29, 1985, defendant argued with the woman he had lived with for 12 years about her two daughters from a prior marriage. After the woman went downstairs to sleep in a chair, defendant followed to continue the argument. Defendant pulled out a pistol purchased the day before and shot her four times.

Defendant then kicked open the locked bedroom door of the woman's 17-year-old daughter. The daughter was asleep but awoke when defendant broke in her door. The daughter's infant son was sleeping in the same room. Defendant shot the daughter twice in the face and left the bedroom.

The mother had managed to run outside. Defendant pursued and caught her, then beat her with the pistol until the trigger guard broke, at which point he beat her head against some rocks. Defendant left the gun lying beside the mother on the sidewalk and returned to the daughter's bedroom. Hearing the daughter moan, defendant grabbed a tonic water bottle and beat her over the head until the bottle shattered. When the daughter continued to moan, defendant went to the kitchen, got a knife and returned to her room where he Defendant drove to a police station, turned himself in, and gave a taped confession. Defendant was charged by indictment with first-degree murder for the daughter's death and attempted first-degree murder for assaulting the mother. Originally, defendant entered into a plea agreement in exchange for a life sentence plus 21 years and was sentenced in accordance with the plea agreement. Defendant subsequently requested post-conviction relief, alleging improper denial of his motion to withdraw his guilty plea. The superior court granted relief and reinstated the original charges.

[165 Ariz. 434] stabbed her numerous times, leaving the knife in her abdomen. The daughter died but her infant son was unharmed. The mother survived.

Prior to trial, defendant filed a motion for a determination of his competency to stand trial and of his mental condition at the time of the offense. See Rule 11, Ariz.R.Crim.Pro. The trial court found defendant competent to stand trial after reviewing reports from appointed experts. In addition, defendant sought to preclude admission of other bad act evidence, specifically, an assault on the daughter with a hammer about 14 months earlier. The trial court heard arguments on this motion and determined that the evidence was admissible under Rule 404(b), Ariz.R.Evid., for purposes of showing preparation, plan or intent, and that the probative value of the evidence outweighed any potential prejudice.

At trial, defendant presented an insanity defense, claiming alcohol-induced psychosis, and did not testify on his own behalf. The jury returned a verdict of guilty on both counts.

The trial court conducted an aggravation-mitigation hearing prior to sentencing pursuant to A.R.S. § 13-703. In addition to the presentence reports, the judge heard testimony from the murder victim's mother about the crimes' impact on her and her family. Defendant presented no witnesses in mitigation although the judge considered letters from defendant's ex-wife and friends.

The court entered its special verdict, finding two aggravating factors: (1) defendant was previously convicted of a felony involving the use or threat of violence on another person as set forth in A.R.S. § 13-703(F)(2); and (2) defendant committed the offense in an especially heinous, cruel and depraved manner as set forth in A.R.S. § 13-703(F)(6). The judge found that defendant's conviction on a charge of endangerment, a class 6 felony, for an earlier assault on the murder victim, constituted a § 13-703(F)(2) aggravating circumstance. In finding the second factor, the court considered testimony elicited at trial from the officer who took defendant's confession and from the first officer to arrive on the scene. In addition, the court considered the surviving victim's testimony at both the trial and the sentencing hearing. The court also found two mitigating factors pursuant to A.R.S. § 13-703(G)(1): (1) that defendant may have experienced diminished capacity due to an alcohol abuse problem; and (2) that defendant was held in high regard by his ex-wife and a former friend.

The court weighed the factors and found the mitigating circumstances insufficient to call for leniency. The judge imposed the death penalty for count I and the maximum sentence of 21 years for count II. Defendant filed a timely notice of appeal claiming the following errors:

1. The trial court erred by admitting evidence of defendant's earlier attack on victim;

2. the trial court should not have used a prior class 6 felony endangerment conviction as an aggravating circumstance for imposition of the death penalty pursuant to A.R.S. § 13-703(F)(2);

3. the trial court erred by receiving and considering victim impact statements at the sentencing hearing; and

4. the trial court erred by finding that the evidence established that the defendant committed the murder in an especially heinous, cruel and depraved manner.

In addition, defendant raised the following constitutional claims: (1) Arizona's We previously considered and rejected the constitutional arguments presented. See, e.g., State v. Vickers, 159 Ariz. 532, 544, 768 P.2d 1177, 1189 (1989) ("especially heinous, cruel or depraved" aggravating circumstance not unconstitutionally vague); State v. Fulminante, 161 Ariz. 237, 258, 778 P.2d 602, 623 (1988) (burden of proof on defendant for mitigating circumstances constitutional); State v. Correll, 148 Ariz. 468, 483-84, 715 P.2d 721, 736-37 (1986) (jury trial not required for capital sentence); State v. Harding, 137 Ariz. 278, 292, 670 P.2d 383, 397 (1983) (prosecutorial discretion upheld), cert. denied, 465 U.S. 1013, 104 S.Ct. 1017, 79 L.Ed.2d 246 (1984); State v. Zaragoza, 135 Ariz. 63, 69, 659 P.2d 22, 28 (1983) (not an unconstitutional mandatory death penalty statute), cert. denied, 462 U.S. 1124, 103 S.Ct. 3097, 77 L.Ed.2d 1356 (1983); State v. Schad, 129 Ariz. 557, 574, 633 P.2d 366, 383 (1981) (State's burden of proof for aggravating circumstances constitutional), cert. denied, 455 U.S. 983, 102 S.Ct. 1492, 71 L.Ed.2d 693 (1982). Given the disposition of this case, we will not reconsider the constitutional arguments at this time. ¹ Accordingly, our review on appeal is limited to claims of error one through four.

[165 Ariz. 435] death penalty statute, which includes commission of the murder in a heinous, cruel and depraved manner, is unconstitutionally vague; (2) the sentencing scheme unconstitutionally shifts the burden of proving mitigating circumstances to the defendant; (3) Arizona's statute fails to provide a death-penalty-eligible defendant a jury trial at the sentencing stage as required by the Constitution; (4) prosecutorial discretion to seek the death penalty is unconstitutional; (5) the death penalty statute unconstitutionally provides for a mandatory death sentence; and (6) the death penalty statute is unconstitutional because the State is not required to prove that aggravating factors outweigh mitigating factors beyond a reasonable doubt.

DISCUSSION

A. Trial Phase

Admissibility of Evidence of Earlier Attack on Victim

Defendant complains that the trial court erroneously admitted evidence of his attack on the daughter about 14 months before her murder. In a pretrial hearing, the State argued that evidence of the earlier attack was admissible under Ariz.R.Evid. 404(b) to show preparation, plan and intent and was independently admissible should defendant raise a defense of insanity. The trial court ruled the evidence admissible under Rule 404(b) to show preparation, plan and intent, that it was relevant and that the probative value of the evidence outweighed any prejudice to the defendant. Defendant claims that the prior attack was irrelevant to these issues. He asserts the attack was spontaneous and carried out under the influence of alcohol (negating relevance to plan and intent) and that it was too remote from the offense charged (negating relevance to preparation).

As an initial matter, we note that defendant's assertions go to the weight of the evidence, not to whether the evidence is Relevant prior bad acts are admissible if a defendant's sanity is at issue. State v. Vickers, 159 Ariz. 532, 540, 768 P.2d 1177, 1185 (1989). Once a defendant raises insanity as a defense, evidence of prior bad acts falls out of the limitations of Rule 404. All prior relevant conduct in the defendant's life is admissible because such evidence may assist the trier of fact in determining criminal responsibility. State v. Skaggs, 120 Ariz. 467, 470-71, 586 P.2d 1279, 1282-83 (1978). Where insanity is an issue, both defendant and State may present evidence of "previous troubles" to assist the jury in understanding defendant's mental condition at the time of the crime. State v. Rodriguez, 126 Ariz. 28, 31, 612 P.2d 484, 487 (1980).

[165 Ariz. 436] relevant and admissible. Moreover, regardless of whether...