State v. King

Decision Date03 November 1994
Docket NumberNo. CR-91-0084-AP,CR-91-0084-AP
Citation180 Ariz. 268,883 P.2d 1024
PartiesSTATE of Arizona, Appellee, v. Eric John KING, Appellant.
CourtArizona Supreme Court

CORCORAN, Justice.

John Eric King (defendant) was convicted of two counts of premeditated first-degree murder and sentenced to death on both counts. This automatic appeal followed. See A.R.S. § 13-4031; rules 26.15, 31.2(b) and 31.15(a)(3), Arizona Rules of Criminal Procedure. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and A.R.S. §§ 13-4031 to -4033, and we affirm defendant's convictions and sentences.


Shortly after midnight on December 27, 1989, a black male, brandishing a pistol, robbed the Short Stop convenience market at 48th Street and Broadway in Phoenix. During the course of the robbery, both the store clerk and security guard were shot and killed. The robbery was captured on two time-lapse video cameras. The videotape was admitted into evidence and showed the robber pointing the gun at the clerk and that clerk moving backward and then falling to the floor as the robber left the store. Photographs developed from the videotape depict a black male wearing a dark sweater with a band of light colored, diamond-shaped markings across the chest and arms. No one else was present in the store at the time of the robbery.

At approximately midnight on December 27, Frank Madden drove to the Country Kitchen restaurant parking lot, which is behind the Short Stop on the north side, where he was to meet his date. As he drove past the Short Stop toward the restaurant, he saw two black men walking in the parking lot. The men were a little over 6 feet tall and one of them wore a blue or black and white sweater with "some kind of pattern like pyramids"; the other man wore a "green sweatshirt."

Madden and his girlfriend discovered that the restaurant was closed. As they were talking, they heard gunshots and immediately drove over to the Short Stop. When Madden got out of his car and walked toward the front of the store, he saw the security guard, with an empty gun holster, lying on the ground. At the same time, the black man with the dark sweater, who Madden had seen earlier at the Country Kitchen parking lot, was also walking toward the store.

Madden heard the guard moaning and saw blood on the right side of his stomach. He phoned 911. While Madden was on the phone, the man with the dark sweater went over to the security guard, pulled out a white cloth, and wiped the guard's holster and belt. After Madden saw him, the man in the dark sweater left the scene. Madden could not positively identify defendant as the man he saw that night, but he testified that the man he saw had "high cheekbones" like defendant's, that defendant looked very familiar, and the only difference was that the man he saw had facial hair and was not as nicely dressed as defendant.

Around midnight, Kevin Harris and his friend David Dils were driving through the intersection of 48th Street and Broadway when they too heard gunshots. Harris was looking in the direction of the Short Stop and saw two black men running away from the store; one of the men held a gun in his hand. Harris and Dils drove into a nearby parking lot, got out of the car, and approached the store. Harris saw the security guard lying on the ground and a man using the phone. Dils checked the guard's pulse and found none. They then entered the store and saw the clerk behind the counter; he had been shot in the right shoulder and stomach and was holding a telephone yelling into the receiver. Dils and Harris assisted the clerk until the fire department arrived.

Shortly after the shootings, Nolan Thomas, his son Derek, and Greg Hecky pulled into the Short Stop. Just as Nolan parked his car, Derek directed his dad's attention to the security guard lying on the ground. Nolan looked over and saw a black man with a mustache and goatee, wearing a black sweater with a white "logo," bending over the security guard. Like Madden, he saw the man wipe off the guard's empty holster with a white rag and then run off.

About that time, Phoenix Police Sergeant Richard Switzer received a radio call to go to the Short Stop. The call included a description of the suspects. While driving east on Broadway, he saw two black males walking west on Broadway across 44th Place. Sgt. Switzer made a U-turn and drove toward the men to determine whether they fit the suspects' descriptions. Sgt. Switzer shined a spotlight on the two men, got out of his car, and walked toward them. Despite Sgt. Switzer's order to "halt," one of the men, wearing a blue sweater with white markings on the upper sleeve, fled the scene running south. The man who stopped identified himself as Michael Jones. After being asked about the man who ran away, Jones told Sgt. Switzer that he had just met the man and did not know him. At trial, Sgt. Switzer testified that he remembered the man he saw with Jones that night as being slightly taller than Jones, who was 6 feet 1 inches tall.

Later that night, Nekita Renee Hill and her friend Joann Smith walked to Smith's house. Ms. Smith lived in the area of 48th Street and Broadway, and her house was within walking distance of the Short Stop. During their walk, they noticed helicopters flying overhead.

As they approached Smith's house, Hill saw defendant walking toward a dumpster. She saw him throw a light-colored, thin plastic bag in the dumpster. The bag contained a gun and a dark sweater with a white diamond pattern that Hill had seen defendant wearing earlier that night.

Hill knew defendant, who was a childhood friend of her boyfriend Jones; defendant had frequently visited Jones at Smith's house while Hill was there. Sometime later, Hill saw a picture on television that she recognized as defendant. When she saw defendant's picture, she called the police.

Both defendant and Jones were arrested later in connection with the robbery and murders. 1 Jones, who had been to the Short Stop a couple of times the evening of the murders, admitted at trial that he was at the Short Stop when the robbery and murders occurred. He testified that he and defendant had gone to the Short Stop to buy wine and that he had remained outside while defendant went inside the store. Jones said that while he was waiting outside, he heard gunshots. On hearing the shots, he turned toward the store and saw defendant leaving the store with a gun in his hand and the security guard lying on the ground in front of the store.

Jones testified that earlier in the evening he had seen the security guard with a large gun in his holster, a gun that was either a .44 or a .357 magnum. Although he said that he had not seen defendant touch the guard, he testified, without objection, that he believed defendant got the gun from the security guard.

At trial, Jones testified that the next time that he saw defendant--several days after the murder when they both had been arrested--defendant's hair was shorter and he had shaved his beard and mustache. He further testified that defendant at trial looked like he did when he was arrested. After viewing one of the photographs made from the surveillance camera tapes, Jones testified that the person depicted in the photograph "looks a lot like" defendant and that "it seems like" defendant.

At trial, Hill was a reluctant witness, admitting that she did not want to be involved with the trial and that she was testifying only under threat of arrest. Hill testified that defendant and Jones had gone to the Short Stop in the "middle of the night" on the night of the murders and that she had wanted to go with them but her mom would not babysit for her. When shown a copy of the picture that was broadcast over the television, she admitted that the picture prompted her call to the police. She also admitted telling the police that the person depicted in the picture was defendant. She tried recanting her earlier identification, however, by testifying that the person depicted in the picture did not look like defendant. Hill did testify that defendant had a beard and a mustache, and that his hair was longer and wilder looking at the time of the murders.

Defendant did not testify at trial, and the only witness who he called was Sgt. Switzer, who essentially restated his earlier testimony concerning the height of the man who ran away when he stopped Jones. Defendant argued that the state failed to meet its burden of proof by attacking the credibility of the state's two key witnesses (Jones and Hill) and by focusing the court's attention on his height of 5 feet 8 inches as compared to testimony of two witnesses that the person with Jones was over 6 feet tall. The jury unanimously convicted defendant of two counts of premeditated first-degree murder and one count of armed robbery, dangerous.

Defendant did not speak on his own behalf at the sentencing hearing. In fact, defendant left in the middle of the hearing, telling the judge that he did not want to be there because:

I thought I had a right to be proven not guilty. Like I said I did not commit the crime. No evidence, no effect. You already heard the case. I know the situation. You will give me the death penalty or life. I feel either way you go and I want to leave.

He was sentenced to death for each of the two first-degree murder convictions and to a consecutive, aggravated term of 21 years on the armed robbery conviction. Defendant was also ordered to pay restitution of $72.84.

In its special verdict, the court found that the state had proved, beyond a reasonable doubt, 3 aggravating circumstances under A.R.S. § 13-703(F): that (1) defe...

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