State v. Lámar

• Decision Date: 17 July 2003
• Docket Number: No. CR-01-0270-AP.,CR-01-0270-AP.
• Parties: STATE of Arizona, Appellee, v. Christopher George Theodore LAMAR, Appellant.
• Court: Arizona Supreme Court

72 P.3d 831

205 Ariz. 431

STATE of Arizona, Appellee, v. Christopher George Theodore LAMAR, Appellant.

No. CR-01-0270-AP.

Supreme Court of Arizona, En Banc.

July 17, 2003.

Janet Napolitano, Former Arizona Attorney General, Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel Capital, Litigation Section, and Robert L. Ellman, Assistant Attorney General, Phoenix, Attorneys for the State of Arizona.

Susan M. Sherwin, Maricopa County, Office of the Legal Advocate by Brent E. Graham, Phoenix, Attorneys for Christopher George Theodore Lamar.

OPINION

McGREGOR, Vice Chief Justice.

¶ 1 A jury convicted Christopher George Theodore Lamar of the first degree murder and kidnapping of Ronald Jones. Following a sentencing hearing, the trial judge sentenced Lamar to death for the first degree murder conviction and to twenty-one years imprisonment for the kidnapping conviction. Appeal to this court is automatic and direct for capital cases. Ariz.Rev.Stat. (A.R.S.) § 13-703.04 (Supp.2002); Ariz. R.Crim. P. 31.2.b. We exercise jurisdiction pursuant to Article VI, Section 5.3 of the Arizona Constitution and A.R.S. section 13-4031 (2001).

I.

¶ 2 This court views the evidence in the light most favorable to sustaining the verdict. State v. Moore, 111 Ariz. 496, 497, 533 P.2d 663, 664 (1975).

¶ 3 In April 1996, Lamar met and became involved with Myla Hogan. While the two were dating, Hogan lived in a house on 81st Avenue in Peoria, Arizona, with several other people, including Mary Keovorabouth, Ouday "Tim" Panmany, Vincent Macchirella, Richard Valdez, and Abraham Hermosillo.¹

¶ 4 On May 11, 1996, Ronald Jones left his house around 1:00 p.m., telling Alicia Sosa, his live-in girlfriend, that he planned to deliver documents to a loan company. At some point, Hogan called Jones's pager to invite him to lunch. Hogan and Jones knew one another through Keovorabouth. Jones picked Hogan up at the house on 81st Avenue, and the two ate lunch together. ¶ 5 When Hogan and Jones returned to the house on 81st Avenue, Keovorabouth, Hermosillo, Macchirella, Valdez, Panmany, and Lamar were all present. Prior to May 11, the group had devised a plan to kidnap and rob Jones. The purpose of the plan was twofold: to steal Jones's money and possessions so they could pay rent and to "rough him up a little bit" so he would stop spending time with Hogan.

¶ 6 Lamar and the others were waiting for Jones when Hogan and Jones returned to the house. When Lamar confronted Jones about his relationship with Hogan, Jones responded that he did not know of Hogan's involvement with Lamar. Lamar then punched Jones. After Jones fell to the floor, Macchirella pointed a gun at him. At Lamar's direction, Hermosillo retrieved duct tape and bound Jones's hands and ankles.

¶ 7 Lamar and Macchirella then moved Jones into a bedroom and took his possessions, including his shoes, jewelry, fifty dollars, and some crack cocaine. Jones cried and pleaded for his life, offering to write a check if they released him. Lamar demanded the gun from Macchirella, explaining that he had "done this before." The group then led Jones upstairs and held him captive while everyone watched television and took turns guarding Jones with the gun. Jones begged to be let go several times.

¶ 8 When it became dark, Lamar and the others led Jones downstairs and forced him into the front passenger seat of Jones's car. Lamar directed Macchirella to drive to Lamar's and Hermosillo's old neighborhood near 35th Avenue and Broadway Road. Hermosillo, Panmany, and Valdez followed in a stolen truck but made a stop along the way. Lamar sat behind Jones in the car. At one point, Lamar held the gun to Jones's head and pulled the trigger, but the gun did not fire. Jones cried and pleaded for his life when he heard the click of the gun.

¶ 9 Eventually, Lamar directed Macchirella to stop the car. Macchirella pulled the car to the side of the road near a vacant lot. The three men exited the vehicle and walked to the back of the car. At Lamar's direction, Macchirella opened the trunk. Lamar then shot Jones. At trial, the medical examiner testified that Jones suffered two gunshot wounds to the head. Macchirella testified that as he and Lamar picked Jones up and placed him in the trunk, Jones made "gurgling" sounds, as if he were choking on his own blood.

¶ 10 Hermosillo, Panmany, and Valdez were at Hermosillo's grandmother's nearby house when they heard gunshots. When they arrived at the scene and asked what had happened, Lamar responded by opening the trunk and patting Jones's back.

¶ 11 The group decided to move Jones's car and bury his body. The car would not start, so they pushed it to a parking lot. Someone retrieved a shovel, and, at Lamar's direction, Macchirella dug a grave. Lamar, Hermosillo, Panmany, and Valdez then dragged Jones's body to the grave, pushed him into the hole, and covered it with dirt and brush. Some or all of the group removed a cellular telephone, a radio, a CD player, a toolbox, and a tool belt from Jones's car. They then set Jones's car on fire.

¶ 12 At some time during the night, Macchirella called the house in Peoria from Jones's cellular telephone, telling Keovorabouth they had made a mistake. Lamar chastised him for using the phone, which could connect them to Jones.

¶ 13 Everyone then went to a party in Lamar's and Hermosillo's old neighborhood. At the party, Lamar saw his cousin Frances Lamar. Frances later testified that she noticed some blood on Lamar's shoes. Lamar asked Frances for a ride to Mesa, and while they were driving she saw him throw a shoe out the window. Lamar returned to the party and he, Macchirella, Hermosillo, Panmany, and Valdez drove back to Peoria in the stolen truck. They abandoned the truck in a nearby parking lot and walked back to the house on 81st Avenue.

¶ 14 Hogan testified that after the group returned to the house she asked Lamar where they had been and he responded, "Don't ask." Hogan described Lamar as looking very white, as if he had seen a ghost.

¶ 15 According to Hermosillo, when they returned to the house, both Lamar and Macchirella accused the other of shooting Jones, but both eventually claimed to have shot Jones. Hermosillo testified that Lamar also described the size of the holes that the bullets made in Jones's head.

¶ 16 In September 1996, Silent Witness received a tip, apparently from Lamar's cousin Frances, that the police could find a body buried in a vacant lot near 43rd Avenue and Weir. Later, Hogan, Frances, and Frances's sister Marie spoke with Maricopa County Sheriff Detective John Strang. After interviewing the women, the police searched a gravel pit near 43rd Avenue and Weir and located a body, later identified through dental x-rays as Ronald Jones.

¶ 17 The police then executed a search warrant at the apartment of Debra Lamar, Lamar's aunt, where Lamar and Hogan sometimes stayed. In a trash dumpster behind the apartment, the police discovered a tool belt, wrapped in a diaper. Debra admitted that she found the tool belt in the pantry, where Lamar kept his belongings, and that she threw the belt into the dumpster. The police also found a toolbox on a shelf located in the rear of the kitchen.

¶ 18 The police did not test the toolbox or the tools found in it for fingerprints. Alicia Sosa testified, however, that she recognized some of the tools as belonging to Jones. Sosa also identified handwriting on a note found in the toolbox as her own.

¶ 19 In February 1997, a grand jury indicted Lamar for the first degree murder and kidnapping of Ronald Jones. The court appointed Mr. Steinle and Mr. Dupont from the Office of the Legal Defender to represent Lamar. In May 1999, Lamar moved to discharge Mr. Steinle but consented to his continued representation by Mr. Dupont. At that time, Mr. Steinle and Mr. Dupont told the trial judge that Lamar's case was prepared for trial, and that they had provided Lamar the materials related to his case. The trial court granted Lamar's request and dismissed Mr. Steinle. In October 1999, Lamar moved to represent himself but withdrew his motion when the trial judge denied his request for a continuance.

¶ 20 On December 10, 1999, a jury convicted Lamar of kidnapping and first degree murder on both premeditated and felony murder theories. After considering the aggravating and mitigating circumstances, the trial court sentenced Lamar to death.

II.

¶ 21 Lamar argues that the trial court abused its discretion in denying his motion to continue and that the denial effectively prevented him from representing himself, thereby violating rights secured by the Sixth Amendment and Article II, Section 24 of the Arizona Constitution.² The State contends the court acted within its discretion and did not infringe upon Lamar's Sixth Amendment right because it did not deny Lamar's motion to represent himself.³

A.

¶ 22 The right to counsel under both the United States and Arizona Constitutions includes an accused's right to proceed without counsel and represent himself. Faretta v. California, 422 U.S. 806, 836, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975); State v. De Nistor, 143 Ariz. 407, 412, 694 P.2d 237, 242 (1985). To exercise this right, a defendant must voluntarily and knowingly waive his right to counsel and make an unequivocal and timely request to proceed pro se. De Nistor, 143 Ariz. at 412,694 P.2d at 242. Generally, a request is considered timely if it is made "before meaningful trial proceedings have commenced,"⁴ which courts have interpreted to mean before the jury is empaneled. Armant v. Marquez, 772 F.2d 552, 555 (9th Cir.1985); De Nistor, 143 Ariz. at 412,694 P.2d at 242. If a defendant complies with these requirements, the trial court should grant the defendant's request to represent himself. Armant, 772 F.2d at 555.

¶ 23 Lamar first expressed his desire to represent himself on October 21, 1999, when he filed a motion for change of counsel by requesting that the ...