State v. Kiles

• Decision Date: 10 August 2009
• Docket Number: No. CR-06-0240-AP.,CR-06-0240-AP.
• Citation: 213 P.3d 174,222 Ariz. 25
• Parties: STATE of Arizona, Appellee, v. Alvie Copeland KILES, Appellant.
• Court: Arizona Supreme Court

213 P.3d 174

222 Ariz. 25

STATE of Arizona, Appellee, v. Alvie Copeland KILES, Appellant.

No. CR-06-0240-AP.

Supreme Court of Arizona, En Banc.

August 10, 2009.

Appeal from the Superior Court in Yuma & Maricopa Counties, The Honorable Kirby D. Kongable, Judge Pro Tempore.¹

Terry Goddard, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation, Phoenix, Amy Pignatella Cain, Assistant Attorney General, Tucson, Attorneys for State of Arizona.

Law Offices of Paul J. Mattern By Paul J. Mattern, Phoenix, Attorney for Alvie Copeland Kiles.

OPINION

RYAN, Justice.

I

A

¶ 1 In February 1989, Valerie Gunnell, and her five-year-old and nine-month-old daughters were beaten to death in their Yuma apartment. After a jury convicted Alvie Kiles of three counts of first degree murder and two counts of child abuse, the trial judge sentenced Kiles to death for each murder. The convictions and Kiles' sentences were affirmed on direct appeal. See State v. Kiles (Kiles I), 175 Ariz. 358, 857 P.2d 1212 (1993). In post-conviction relief proceedings, the superior court found ineffective assistance of counsel and vacated the convictions and sentences.

¶ 2 After a second jury trial in 2000, Kiles was again convicted of three counts of first degree murder and two counts of child abuse. The parties later stipulated to transfer the case to Maricopa County. In 2006, a jury² found three aggravating factors for each murder: (1) Kiles had been previously convicted of a crime involving the use or threat of violence, (2) he had been convicted of multiple homicides, and (3) he had committed the offenses in an especially cruel, heinous, or depraved manner. See Ariz.Rev.Stat. ("A.R.S.") § 13-703(F)(2) (1989) (prior offense involving threat or use of violence); A.R.S § 13-751(F)(6), (F)(8) (Supp.2008) (multiple murders and especially cruel, heinous or depraved).³ The jury also concluded that the two children were less than fifteen years of age. A.R.S. § 13-751(F)(9) (defendant an adult and victim younger than fifteen). The jurors, however, returned a verdict of death only for the murder of Valerie Gunnell.⁴

¶ 3 An automatic notice of appeal was filed under Arizona Rules of Criminal Procedure 26.15 and 31.2(b) and A.R.S. §§ 13-4031 and-4033 (2001). This Court has jurisdiction under the Arizona Constitution, Article 6, Section 5(3), and A.R.S. §§ 13-4031,-4033.

B⁵

¶ 4 Alvie Kiles moved in with Valerie Gunnell and her two daughters in January 1989. Valerie and Kiles soon began arguing about Kiles stealing her food stamps to support his cocaine habit. On February 9, 1989, Deirdre Johnson, who lived next door to Valerie, saw Kiles outside the apartment working on his car. Early the next day, Johnson saw Kiles back his car into a parking space at the apartment. Later that morning Valerie's mother knocked on the door of the apartment, but got no answer.

¶ 5 Larry Hawkins saw Kiles outside Hawkins' apartment that morning in Valerie's car. Valerie's step-father also saw Kiles driving her car that day. Later, Deirdre Johnson noticed Kiles struggling to lift a trash bag over the fence behind the apartment. He dropped the bag, which emitted a "loud thud sound" when it landed.

¶ 6 That afternoon, Kale Johnson saw Kiles sitting in Valerie's car at a Yuma park. Referring to Valerie, Kiles told Johnson, "I killed that girl." Kiles admitted to Johnson that "I killed the kids too" because they were "crying and hollering and screaming." He told Johnson that he had used something he took from the car to commit the murders. Kiles also told Johnson that he had disposed of the children's bodies in the Colorado River.

¶ 7 Johnson did not believe Kiles, so Kiles took Johnson to Valerie's apartment. Johnson saw Valerie's body lying on the floor. There was a puddle of blood on the floor and blood "all over the walls and the ceilings." Johnson attempted to leave the apartment, but Kiles hit him with a broom handle.

¶ 8 Kiles admitted killing Valerie and the children to others. Kiles told Larry Hawkins that he had killed Valerie and her children. He explained that he and Valerie had argued over food stamps that Kiles had taken to buy cocaine. Kiles told Hawkins that Valerie had slapped him twice, once after he had told her not to. Kiles then went to his car and retrieved a tire jack, which he used to strike Valerie at least twice. Hawkins stated that Kiles told him that Valerie "regained consciousness" after the initial blow and asked Kiles, "[W]hy did [you] do this?" Kiles told Hawkins that he had killed the children "because ... they had seen him." Hawkins wrote a letter to Yuma Silent Witness describing Kiles' admissions.

¶ 9 Kiles also admitted to Jesse Solomon, a family friend, and to his mother, Imojean Kiles, that he had killed Valerie with the jack. He further told his mother that he had "taken care of" the children "because they could talk," and had "dumped" the children's bodies in a canal.

¶ 10 The Yuma police went to Valerie's apartment on February 11, 1989. The police found the apartment in "disarray," with cartons of eggs on the floor and a lamp overturned. An officer saw blood spatters in a bedroom, signs of a struggle, blood on the bed, and something "wrapped up in a blanket" in the hall. It was Valerie's body.

¶ 11 Further investigation at the apartment revealed blood smeared on the bathroom floor "as if somebody had tried to wipe [it up]." The bathroom smelled of cleanser and police found a pile of bloody towels.

¶ 12 In Valerie's bedroom, the bed was covered in papers and money and there was clothing all over the floor. A blood-soaked pillow and a piece of a car jack with her hair and blood on it were also found. In the children's bedroom, two "very large pools of blood" were found on the bed. Blood spatter was found on the walls, drapes, ceiling, and door of the west bedroom. A blood spatter expert testified that at least fourteen blows were delivered in the children's room. In the northwest corner of the living room, a blood-stained ottoman and a bone fragment were also found. Blood had soaked into the carpeting. Blood spatter and blood stains were found in the living room. A chair in the living room had stains that indicated someone had lost a lot of blood. A large bone fragment and blood spatter were found near the south wall. In addition, blood smears were found on the front door of the apartment. Blood spatter and smears were found in the kitchen-dining area as well.

¶ 13 Valerie died from multiple blunt force trauma to the head with multiple scalp lacerations, skull fractures, and a brain laceration. She had a broken arm, which medical testimony identified as a defensive wound. The body of Valerie's younger child was later found in a canal in Mexico. She died of blunt force trauma to the skull with extensive skull fractures and a brain laceration. The older child was never found. Her blood, however, was detected on the mattress cover in the apartment.

¶ 14 In his 2000 guilt-phase trial, Kiles admitted murdering Valerie.⁶

II

A

¶ 15 Kiles first argues that the trial court's instruction on premeditation, combined with the prosecutor's arguments, ran afoul of this Court's ruling in State v. Thompson, 204 Ariz. 471, 479-80, ¶¶ 32-34, 65 P.3d 420, 428-29 (2003).

¶ 16 Because Kiles failed to object to either the jury instruction or the prosecutor's argument, we review only for fundamental error. See State v. Gallegos, 178 Ariz. 1, 11, 870 P.2d 1097, 1107 (1994) ("Failure to object at trial to an error or omission ... waives the issue on appeal unless the error amounts to fundamental error."); see also Ariz. R.Crim. P. 21.3(c). Fundamental error is "error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial." State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) (internal quotation marks omitted). "To prevail under this standard of review, a defendant must establish both that fundamental error exists and that the error in his case caused him prejudice." Id. at ¶ 20.

¶ 17 First degree murder is committed when a person "[i]ntending or knowing that his conduct will cause death ... causes the death of another with premeditation." A.R.S. § 13-1105(A)(1) (1989). The superior court gave the following instruction about premeditation:

Premeditation means the defendant acts with the knowledge that he will kill another human being, when such intention or knowledge precedes the killing by a length of time to permit reflection. An act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion.

¶ 18 No error occurred here. Thompson invalidated the use of an instruction stating both that premeditation could be "as instantaneous as successive thoughts of the mind" and that "proof of actual reflection is not required." 204 Ariz. at 479-80, ¶¶ 32-34, 65 P.3d at 428-29. The jury instruction given here is similar to the alternative instruction approved in Thompson, and reflects the statute in force at the time. Id. at 479, ¶ 32, 65 P.3d at 428.⁷ As Kiles acknowledges, the instruction neither included the disapproved "instantaneous as successive thoughts" language nor stated that actual reflection was not required. Indeed, the instruction specifically stated that premeditation required consideration of the murder preceding the act.

¶ 19 This instruction correctly distinguishes between reflection and action. See id. ("[The jury must find that the defendant] reflected on the decision before killing. It is this reflection, regardless of the length of time in which it occurs, that distinguishes first degree murder from second degree murder.").

¶ 20 This distinction is crucial because it was the language stating "that the length of time [for reflection] can be `as instantaneous as successive thoughts of the mind'"...