State v. Kayer

• Decision Date: 29 June 1999
• Docket Number: No. CR-97-0280-AP.,CR-97-0280-AP.
• Citation: 194 Ariz. 423,984 P.2d 31
• Parties: STATE of Arizona, Appellee, v. George Russell KAYER, aka David Flynn, aka David Wortham, Appellant.
• Court: Arizona Supreme Court

984 P.2d 31

194 Ariz. 423

STATE of Arizona, Appellee, v. George Russell KAYER, aka David Flynn, aka David Wortham, Appellant.

No. CR-97-0280-AP.

Supreme Court of Arizona, En Banc.

June 29, 1999.

Janet Napolitano, Attorney General, by Paul J. McMurdie, Chief Counsel Criminal Appeals Division, John Pressley Todd, Assistant Attorney General, Phoenix, Attorneys for Appellee.

John M. Sears, Prescott, Attorney for Appellant.

OPINION.

JONES, Vice Chief Justice.

¶ 1 A jury convicted defendant George Russell Kayer of first-degree murder for taking the life of Delbert L. Haas. The jury also convicted him of other felonies related to the killing. Because defendant was sentenced to death on the murder charge, direct appeal of all convictions and sentences to this court is mandatory pursuant to Rules 26.15 and 31.2(b) of the Arizona Rules of Criminal Procedure. Jurisdiction exists pursuant to article VI, section 5(3) of the Arizona Constitution and section 13-4031 of the Arizona Revised Statutes. We affirm the judgment and sentences imposed by the trial court.

FACTS

¶ 2 On December 3, 1994, two couples searching for Christmas trees on a dirt road in Yavapai County discovered a body, later identified as Haas. Haas had been shot twice, evidenced by entry bullet wounds located roughly behind each ear. On December 12, 1994, Yavapai County Detective Danny Martin received a phone call from Las Vegas police officer Larry Ross. Ross told Martin that a woman named Lisa Kester approached a security guard at the Pioneer Hotel in Las Vegas and said that her boyfriend, the defendant, had killed a man in Arizona. Kester said a warrant had been issued for defendant's arrest in relation to a different crime, a fact Las Vegas police officers later confirmed. Kester gave Las Vegas police officers the gun she said was used to kill Haas, and she led the officers to credit cards belonging to Haas that were found inside a white van in the hotel parking lot. Kester appeared agitated to the police officers and security guards present and said she had not come forward sooner because she feared defendant would kill her, too. She asked to be placed in the witness protection program. She described defendant's physical appearance to the assembled officers and agreed to go with an officer to the police station.

¶ 3 A combination of Pioneer Hotel security guards and Las Vegas police officers soon spotted defendant leaving the hotel. The officers arrested defendant and took him to the police station for questioning. Kester had already been arrested for carrying a concealed weapon. Detectives Martin and Roger Williamson flew to Las Vegas on December 13 to interrogate Kester and the defendant. Kester gave a complete account of events that she said led to Haas' death. Defendant, in contrast, spoke briefly with the detectives before invoking his Miranda right to have an attorney present. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

¶ 4 Kester's statements to Detectives Martin and Williamson formed the basis of the State's prosecution of defendant. She said that defendant continually bragged about a gambling system that he had concocted to defeat the Las Vegas casinos. However, neither defendant nor Kester ever had money with which to gamble. Defendant was a traveling salesman of sorts, selling T-shirts, jewelry, and knickknacks. His only other income came from bilking the government of benefits through fake identities that both defendant and Kester created. Defendant learned that Haas recently received money from an insurance settlement. Kester and defendant visited Haas at his house near Cordes Lakes late in November 1994. Kester said that defendant convinced Haas to come gambling with them. On November 30, 1994, defendant, Kester, and Haas left for Laughlin, Nevada in defendant's van.

¶ 5 The trio stayed in the same hotel room in Laughlin, and after the first night of gambling, defendant claimed to have "won big." Haas agreed to loan the defendant about $100 of his settlement money so that defendant could further utilize his gambling system. Defendant's gambling system proved unsuccessful, and he promptly lost all the money Haas had given him. However, defendant told Haas again that he had won big but that someone had stolen his winnings. Kester asked defendant what they were going to do now that they were out of money. Defendant said he was going to rob Haas. When Kester asked how defendant was going to get away with robbing someone he knew, defendant said, "I guess I'll just have to kill him."

¶ 6 The three left Laughlin to return to Arizona on December 2, 1994. On the road, all three—but mostly Haas—consumed alcohol. Defendant and Haas argued continually over how defendant was going to repay Haas. The van made several stops for bathroom breaks and to purchase snacks. At one of these stops, defendant took a gun that he stored under the seat of the van and put it in his pants. Defendant asked Kester if she was "going to be all right with this." Kester said she would need a warning before defendant killed Haas.

¶ 7 Defendant charted a course through back roads that he claimed would be a shortcut to Haas' house. While on one such road, defendant stopped the van near Camp Wood Road in Yavapai County. At this stop, Kester said Haas exited the van and began urinating behind it. Kester started to climb out of the van as well, but defendant motioned to her with the gun and pushed her back into the van. The van had windows in the rear and on each side through which Kester viewed what occurred next. Defendant walked quietly up to Haas from behind while he was urinating, trained the gun at Haas' head at point-blank range, and shot him behind the ear. Defendant dragged Haas' body off the side of the road to the bushes where the body was eventually found. Defendant returned to the car carrying Haas' wallet, watch, and jewelry.

¶ 8 Defendant and Kester began to drive away in the van when defendant realized that he had forgotten to retrieve Haas' house keys. He turned the van around and returned to the murder scene. Kester and defendant both looked for the body; Kester spotted it and then returned to the van. Defendant returned to the van, too, and asked for the gun, saying that Haas did not appear to be dead. Kester said defendant approached Haas' body and that she heard a second shot.

¶ 9 Kester and defendant then drove to Haas' home. Defendant entered the home and stole several guns, a camera, and other of Haas' personal property. He attempted unsuccessfully to find Haas' bank PIN number in order to access Haas' bank accounts. Defendant and Kester sold Haas' guns and jewelry at pawn shops and flea markets over the course of the next week, usually under the aliases of David Flynn and Sharon Hughes. Defendant and Kester went to Las Vegas where defendant used the proceeds from selling these items to test his gambling system once again and to pay for a room at the Pioneer Hotel. At this time, Kester approached the Pioneer Hotel security guard and reported defendant's crime.

PROCEDURAL HISTORY

¶ 10 On December 29, 1994, a Yavapai County grand jury indicted both defendant and Kester. Both were charged with: (1) premeditated first-degree murder, (2) felony first-degree murder, (3) armed robbery, (4) residential burglary, (5) theft, (6) trafficking in stolen property, and (7) conspiracy. In February 1995, the State filed a notice that it would be seeking the death penalty against both defendant and Kester.

¶ 11 In September 1995, as trial approached, Kester entered into a plea agreement with the State. The plea agreement required Kester to verify "that all prior statements made to [Yavapai County Detectives Martin and Williamson in December 1994] were truthful." It also required Kester to "appear at any proceeding including trial upon the request of the State and testify truthfully to all questions asked." It mandated that Kester "cooperate completely with the State of Arizona in the prosecution of" defendant, and it allowed the State to dishonor the agreement if Kester violated any term or condition. In return for these promises, Kester was charged with facilitation to commit first-degree murder, facilitation to commit residential burglary, and facilitation to commit theft/trafficking in stolen property. These crimes are class 5 and class 6 felonies and carry significantly lesser penalties than the murder and felony charges with which Kester had been charged.

¶ 12 As the trial date approached and after the State's attorney and defendant's originally appointed attorney had engaged in substantial pretrial activity, defendant became disenchanted with his attorney and refused to cooperate any further. The trial judge was forced to appoint new counsel for defendant, delaying the trial for nearly a year. The State dropped all conspiracy charges, and defendant was eventually tried in March 1997. At trial, defendant's entire defense centered on a claim that Kester—not defendant—had killed Haas and was now framing defendant for the murder. The State presented extensive evidence, including forensic evidence, that corroborated Kester's testimony and discredited defendant's testimony. The jury found defendant guilty on all charges.

¶ 13 Upon being found guilty, defendant made clear his desire to expedite the sentencing process. The trial judge scheduled the initial conference to discuss sentencing procedures for May 16, 1997, about seven weeks after defendant's trial ended. Defendant reluctantly agreed to continue the initial sentencing conference until June 6 to allow a court-appointed mitigation specialist, Mary Durand, to begin working with him. An aggravation/mitigation hearing was scheduled for June 24 with sentencing to follow July 8. Durand sought to interview defendant, his family members, and others in order to discover genetic, physical, and/or psychological impairments that might explain defendant's behavior and...