State v. Jones

• Decision Date: 15 June 2000
• Docket Number: No. CR-98-0537-AP.,CR-98-0537-AP.
• Citation: 4 P.3d 345,197 Ariz. 290
• Parties: STATE of Arizona, Appellee. v. Robert Glen JONES, Jr., Appellant.
• Court: Arizona Supreme Court

4 P.3d 345

197 Ariz. 290

STATE of Arizona, Appellee. v. Robert Glen JONES, Jr., Appellant.

No. CR-98-0537-AP.

Supreme Court of Arizona, En Banc.

June 15, 2000.

Janet A. Napolitano, The Attorney General by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section, Phoenix, and Bruce M. Ferg, Assistant Attorney General, Tucson, for the State.

S. Jonathan Young, Tucson, for Jones.

OPINION.

McGREGOR, Justice.

¶ 1 Appellant Robert Jones appeals his convictions and death sentences for six counts of first-degree murder, and his convictions and sentences for one count of first-degree attempted murder, three counts of aggravated assault, three counts of armed robbery, and two counts of first-degree burglary.¹ We review this case on direct, automatic appeal pursuant to article VI, section 5.3 of the Arizona Constitution, Arizona Rules of Criminal Procedure 26.15 and 31.2.b, and Arizona Revised Statutes Annotated (A.R.S.) section 13-4031. For the following reasons, we affirm the appellant's convictions and sentences.

I.

¶ 2 David Nordstrom (David), the state's key witness, was released from prison in January 1996, after serving his sentence for a theft conviction. At that time, he took up residence in his father's home in Tucson, where he was under "home arrest" status and monitored by an ankle monitor. The home arrest was related to his prior theft conviction, and as a term of the arrest, he had to be inside his father's home by a certain time every evening. During this period of home arrest, he reestablished his friendship with the defendant, Robert Jones (Jones). Scott Nordstrom (Scott), David's brother, also returned to Tucson and spent time with David and Jones.

¶ 3 Sometime before April 1996, David obtained a .380 semiautomatic pistol from a friend, which he gave to Jones after Jones requested it for protection. On May 30, 1996, Scott and Jones picked up David in Jones's truck, an old white Ford pickup. Jones was wearing his usual attire: a long-sleeved western shirt, Levi's, boots, sunglasses, and a black cowboy hat. In a parking lot near the Tucson Medical Center, Jones spotted a car that he thought he could steal. Although he failed to start the car, Jones found a 9mm pistol under the seat and left with it, stating, "I've got my gun now." (R.T. 6/23/98, at 103-04.)

¶ 4 As the three continued driving, they began discussing the possibility of a robbery, and Jones gave Scott the .380 pistol. Jones then suggested that they rob the Moon Smoke Shop. He parked behind the store, telling David he and Scott would go in, rob it, and be right out. David then heard gunfire from inside, after which, Jones and Scott left the shop and jumped into the truck. David drove up the alley, exited onto the surface street, and headed toward the freeway. Jones stated, "I shot two people," and Scott stated, "I shot one." (Id. at 113.) Jones then split the money from the robbery with David and Scott.

¶ 5 The survivors from the robbery testified that four employees were in the store at the time of the robbery: Noel Engles, Tom Hardman, Steve Vetter, and Mark Naiman, a new employee on the job for the first time. Just before the robbery, Engles was standing behind the counter, and Vetter and Naiman were kneeling behind it. Hardman was sitting behind another counter, and no customers were in the store. Jones and Scott followed a customer, Chip O'Dell, into the store and immediately shot him in the head. As the door buzzer indicated someone had entered the store, Engles, Vetter, and Naiman all heard the gunshot. Because all three were concentrating on the stock behind the counter, however, none of them saw the robbers or O'Dell enter. Engles looked up to see a robber in a long-sleeved shirt, dark sunglasses, and a dark cowboy hat wave a gun at him and yell to get down. Naiman recognized the gun as a 9mm.

¶ 6 Engles noticed a second robber move toward the back room and heard someone shout, "Get the fuck out of there!" (R.T. 6/18/98, at 47.) Engles dropped to his knees and pushed an alarm button. The gunman at the counter nudged Naiman in the head with his pistol and demanded that he open the register. After he did so, the gunman reached over the counter and began firing at the others on the floor. Thinking the others were dead, Naiman ran out of the store and called 911 at a payphone. On the floor behind the counter, Engles heard shots from the back room and, realizing the gunmen had left the store, ran out the back door. While running up the alley to get help, he saw a light-colored pickup truck carrying two people, which turned sharply onto the surface street, despite heavy traffic. All survivors agreed that no one had offered any resistance to the gunmen, and that the shootings were completely unprovoked.

¶ 7 Naiman and Engles survived, as did Vetter, despite the shots to his arm and face. Chip O'Dell died from a bullet through his head, which had been fired from close range. Hardman, who had fled to the back room when the gunmen entered, had been shot fatally in the head from above as he lay on the floor. Three 9mm shell casings were found in the store, one beside Mr. O'Dell and two near the cash register. Two .380 shells were found near Hardman's body. Two weeks after the robbery, Naiman met with a police sketch artist who used his description of one of the gunmen to create a composite drawing.

¶ 8 Two weeks after the Moon Smoke Shop robbery, the Fire Fighters Union Hall was robbed. The Union Hall was a club owned by the firefighters and their guests, which contained a bar, bingo hall, and snack bar. Members entered using key cards, and the bartender buzzed in guests. When member Nathan Alicata arrived at 9:20 p.m., he discovered the bodies of member Maribeth Munn, the bartender, Carol Lynn Noel, and a couple, Judy and Arthur "Taco" Bell.

¶ 9 During the ensuing investigation, the police found three 9mm shell casings, two live 9mm shells, and two .380 shell casings. Approximately $1300 had been taken from the open cash register. The coroner, who investigated the bodies at the scene, concluded that the bartender, Carol, had been shot twice, and that the other three victims were shot through the head at close range as their heads lay on the bar. Carol also suffered blunt force trauma which caused a bleeding laceration to the side of her mouth, and Arthur had a contusion on the right side of his head in a shape consistent with a pistol.

¶ 10 David Nordstrom testified at trial that on the day of the Union Hall murders, his brother Scott gave him a ride home, where he remained the rest of the evening. David's parole officer produced records at trial verifying that David's ankle-monitoring unit indicated he had not left his father's home on the night of the murders. Late that evening, Jones entered David's father's house and began telling David what had happened. Jones admitted to David that he and Scott had robbed the Union Hall. He stated that because the bartender could not open the safe, Scott kicked her and shot her. Jones said he then shot the three other witnesses in the back of the head. Jones, Scott, and David disposed of the guns by throwing them into a pond south of Tucson, and Scott and David burned one of the victim's wallets at another location.

¶ 11 David kept the secret until he saw an appeal on the television for information. At that time, he told his girlfriend, Toni Hurley, what he knew. Hurley eventually made an anonymous 88-CRIME call, which led to David's contact with the police, and an ultimate release of the information.

II.

¶ 12 Jones appeals his convictions and sentences on eleven grounds. For the reasons discussed below, we uphold the convictions and sentences.

A.

¶ 13 Jones's first point of error concerns the use of prior consistent statements to rebut recent charges of fabrication. Jones argues that in each instance, the witness's statement was actually made after that witness had motive to fabricate. Specifically, Jones objected to the following testimony: (1) David Nordstrom's out-of-court statements to Toni Hurley and the police, introduced at trial through Hurley's testimony, (2) David Evans's out-of-court statements to detectives, introduced at trial through Detective Edward Salgado's testimony, and (3) Lana Irwin's out-of-court statements to the police, introduced at trial by Detective Brenda Woolridge. ¶ 14 Arizona Rule of Evidence 801(d)(1)(B) provides that an out-of-court statement is not hearsay if the declarant testifies at trial, is available for cross-examination, and the statement is "consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive." This rule requires the statement to have been made before the motive to fabricate arose:

The only way to be certain that a prior consistent statement in fact controverts a charge of "recent fabrication or improper influence or motive" is to require that the statement be made at a time when the possibility that the statement was made for the express purpose of corroborating or bolstering other testimony is minimized.

State v. Martin, 135 Ariz. 552, 554, 663 P.2d 236, 238 (1983). The timing requirement applies, regardless whether the witness is accused of recent fabrication, bad motive, or improper influence. See id. Thus, to determine admissibility, the court must decide (1) whose credibility the statement bolsters, and (2) when that particular witness's motive to be untruthful arose. In this case, because both David Evans's and Lana Irwin's prior statements were used to bolster their own testimony and were made before their motives to fabricate arose, they were properly admitted under Rule 801. David Nordstrom made his prior statements, however, after his motive to fabricate arose. Therefore, the trial court erred in admitting them.

¶ 15 First, Evans testified at trial that he had a conversation with Jones, in which Jones...