State v. Hughes

• Decision Date: 06 May 1997
• Docket Number: No. CR-92-0037-AP,CR-92-0037-AP
• Citation: 938 P.2d 457,189 Ariz. 62
• Parties: , 242 Ariz. Adv. Rep. 50 STATE of Arizona, Appellee/Cross-Appellant, v. Jake Hurt HUGHES, Appellant/Cross-Appellee.
• Court: Arizona Supreme Court

Page 457

938 P.2d 457

189 Ariz. 62, 242 Ariz. Adv. Rep. 50

STATE of Arizona, Appellee/Cross-Appellant, v. Jake Hurt HUGHES, Appellant/Cross-Appellee.

No. CR-92-0037-AP.

Supreme Court of Arizona,

In Banc.

May 6, 1997.

Grant Woods, Attorney General by Paul J. McMurdie, Chief Counsel, Criminal Appeals, Kent E. Cattani, Assistant Attorney General, Phoenix, and Stephen D. Neely, Pima County Attorney by Thomas J. Zawada, Deputy Pima County Attorney, Tucson, for Appellee/Cross-Appellant.

Stephanie J. Meade, Law Office of Stephanie J. Meade, Tucson, for Appellant/Cross-Appellee.

OPINION.

ZLAKET, Chief Justice.

On October 24, 1986, 17-year-old Frankie Spencer disappeared. Six days later, her body was discovered in a remote desert area. She had been strangled to death. In January 1989, defendant Hughes was charged with first degree murder, hindering prosecution, and conspiracy. A jury convicted him on all counts. The trial judge sentenced him to death on the murder conviction and to consecutive 2.5-year prison terms for the other offenses. This automatic appeal followed. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), A.R.S. § 13-4031, and Rule 31.2(b), Ariz.R.Crim.P.

FACTS AND PROCEDURAL HISTORY

It is undisputed that the victim was at defendant's apartment on the last day she was known to be alive. She went there in the early afternoon to meet one of his neighbors, who had agreed to photograph her for a portfolio. Around dusk, she hitchhiked out of that neighborhood. A note to her father and stepmother stating that she was returning to defendant's place, along with clothing from the photo shoot, established that Frankie had made it home. Whether she ever reached his apartment again is unknown.

There is limited physical evidence to show where the young woman was murdered or who did it. Her body was dressed in one of the outfits she had worn for the photos. Her shoes were never found, and her socks were relatively clean, indicating that she probably had been placed in the desert. A tourniquet made with nylon rope and a stick was around her neck.

On one sock, examiners found a dark-colored dog hair. A similar one was later retrieved Because of decomposition, the medical examiner was unable to detect the presence of alcohol or drugs in Frankie's system. He also could not determine if she had been beaten, sexually assaulted, or bound at the wrists or ankles. Sperm found in her vagina indicated that sexual intercourse had taken place within 24 hours of death. Her fingernails were not broken, and no material was found underneath them.

[189 Ariz. 65] from a 1964 Buick accessible to co-defendant David Lankisch. A human hair found in the vehicle did not match Frankie's, and one discovered on her blouse did not match any of the suspects'.

Defendant allegedly made various statements to friends and a jailmate regarding the victim's disappearance and murder. Several weeks after the body was found, his former roommate, James Nelson, told police about a dream defendant described to him in which Frankie was beaten, dragged in the desert, and strangled. Even though he had not told authorities about it when first questioned, Nelson claimed that this conversation took place the day after Frankie disappeared.

While incarcerated for an unrelated arson in December 1986, defendant revealed to fellow inmate Joe Salerno that he had given two juveniles some crack cocaine to "off" his fiancee. He said they hurt her worse than he wanted. She had been tortured, dragged, and left in the desert, allegedly because she would not marry him.

In October 1989, after having made two separate statements that he knew nothing of the murder, Charles Coleman claimed that before the victim's body was found, defendant and co-defendants David Lankisch and Christopher Scherf had joked about putting a noose around Frankie's neck, dragging her with it, and leaving her in the desert.

In 1987, a grand jury failed to return an indictment. In January 1989, a second grand jury charged defendant and Lankisch with one count each of first degree murder. The men were also indicted, together with Scherf, for first degree hindering prosecution and conspiracy to commit a class five felony (hindering prosecution). The charges against Scherf were eventually dropped. Lankisch, tried separately, was found guilty of premeditated murder. After a successful motion for new trial based on newly-discovered evidence, Lankisch pled guilty to lesser charges and was placed on probation.

Defendant's trial commenced in May 1990, and he was convicted on all counts. In its verdict, the jury indicated that he was guilty of murder only as an accomplice. At sentencing, the trial court found three aggravating factors: (1) a prior felony conviction involving the use or threat of violence on another person, see former A.R.S. § 13-703(F)(2); (2) procurement of others to commit the crime by payment or promise of payment, see A.R.S. § 13-703(F)(4); and (3) a killing that had been committed in an especially heinous, cruel or depraved manner, see A.R.S. § 13-703(F)(6). Following a mitigation hearing, the trial judge determined that the proffered evidence was not sufficiently substantial to call for leniency and sentenced defendant to death.

DISCUSSION

I. Character Evidence

Before trial, defendant filed a motion to determine the admissibility of other crimes, wrongs, and acts sought to be introduced by the state. As described by the prosecution, these included:

[E]very other bad act, and every statement that your client made that I have disclosed to you. That would include evidence of the [sic] David Lankisch attempting incest with his sister, David Lankisch inserting objects into the vagina of Joselyn DePaul; the sexual relations between David Lankisch and Jake Hughes; all of the evidence regarding the drug dealing and transactions at Jake's house and his drug transactions with any and all witnesses; the knife incident in which he threatened Jim Nelson, the brake line incident in which Jim Nelson cut the brake lines of someone's car on behalf of Jake Hughes; the incident in which Jake indicated to Jim Nelson he had someone shoot a garbage can; the incident in which a bullet was shot through a window at Mike Rincon's house; Jake's sex act with Rebecca; Jake's statements to ....

[189 Ariz. 66] Detective Manricky regarding strangulations; Jake's act of pointing a gun at Jim Nelson's face; the fire bombing of Michelle's apartment; the fire bombing of Jim Nelson's car; the firebombing of Kelly Choitz' car; the shooting out of the windows of Vaunda's automobile; any and all statement of Jake Hughes regarding murder, other crimes in which he was involved, his criminal connections, his drug trafficking, his sexual activities, and any and all statements by both of these gentlemen and [sic] they relate to other acts.

Jake's act of asking Alexander Lee to let him have sex with his wife and to let him film Alex and his wife having sex.

According to the state's theory of the case, defendant had commanded two juveniles to kill Frankie because she spurned his love, owed him money, and interfered with his marijuana business. The prosecutor urged admission of the foregoing acts and statements to establish defendant as a "Charles Manson-type" person who exerted control over a group of juvenile delinquents, in particular co-defendant Lankisch. The state maintained that the evidence would prove defendant's ability to manipulate others, even to the extent of inducing homicidal conduct.

Following a hearing on defendant's motion, the judge issued a minute entry that simply listed, without comment, the evidence she would allow:

1. Jake Hughes' statement to Alex Lee that Frankie Spencer had hurt him, etc.

2. Jake Hughes' prior conviction re: Michelle Phifer.

3. Jake Hughes' statements to [Joe] Salerno.

4. Jake Hughes' drug activity at his residence involving any of co-defendants and involving Frankie Spencer.

5. Jake Hughes' statement to Kevin Sold re: Frankie Spencer stealing money from Jake Hughes, etc.

6. Jake Hughes' statement to Detective Manricky regarding strangulation.

7. David Lankisch's admission to selling drugs out of Jake Hughes' house.

8. Jake Hughes' alleged statement to Frankie Spencer in Kelly Conway's presence re: tying Ms. Spencer and having sex with her. Defendant may rebut with Mr. Conway's recollection re: the conversation.

9. Jake Hughes' and David Lankisch's statements made in Charles Coleman's presence re: Frankie Spencer.

10. Jake Hughes' statements to Frankie Spencer in David Turton's presence re: going to the desert, hanging her from tree, tying her hands, etc. Defendant may introduce rebuttal evidence on this.

11. The two photographs showing rope, twine, and a shoe lace.

Just before the start of trial, the case was transferred to Judge Fleischman. Although initially stating that he planned to abide by his predecessor's rulings, the judge revisited, at the prosecutor's urging and over defendant's objection, many of the acts and statements previously precluded. He thereafter ruled that four general categories of evidence would be relevant: (1) defendant's relationship with the victim; (2) his reaction to the murder; (3) his retaliatory responses in threatening situations; and (4) his utilization of other people, including juveniles, to do certain deeds. Ultimately, testimony regarding defendant's drug dealing, verbal and physical threats, and miscellaneous acts of violence, including three arsons, was admitted in evidence.

Defendant asserts that much of the evidence lacked relevance. See Rule 402, Ariz.R.Evid. He says the state sought to prove only that he had a general propensity for violence, which constitutes improper character evidence under Rule 404, Ariz.R.Evid. He also argues that there was insufficient proof of some of the acts, see Huddleston v. United States, 485 U.S. 681, 685-87, 108 S.Ct. 1496, 1499-1500, 99 L.Ed.2d 771 (1988); State v....