State v. Lavers

Decision Date23 July 1991
Docket NumberNo. CR-89-0298-AP,CR-89-0298-AP
Citation168 Ariz. 376,814 P.2d 333
PartiesSTATE of Arizona, Appellee, v. Alfred Edward LAVERS, III, Appellant.
CourtArizona Supreme Court

GORDON, Chief Justice.

Alfred Edward Lavers, III (defendant) appeals from his convictions and death sentences for two counts of first degree murder. We have jurisdiction of this automatic appeal pursuant to Ariz. Const. art. 6, § 5(3), and A.R.S. §§ 13-4031, -4033, and -4035.


On appeal, defendant raises the following issues: (1) Whether the trial court erred as a matter of law by refusing to exclude the audio tape cassette; (2) Whether the trial court committed fundamental error by allowing the prosecution to convict defendant and successfully seek the death penalty upon an allegation in count I of the indictment that alleged only the lesser culpable mental state of "knowingly"; (3) Whether the trial court abused its discretion by denying defendant's request to excuse, for cause, a prospective juror who indicated that prior TV broadcasts concerning the case "would haunt [his] mind" during deliberations; (4) Whether the prosecution could, without relying upon the specific contents of the tape, properly establish the necessary foundation for admitting the tape in evidence; (5) Whether the murder of Jennifer Burns can qualify as a murder committed "in an especially heinous, cruel or depraved manner"; (6) Whether the murder of Jennifer Burns was committed during the murder of Mary Lavers, and whether the murder of Mary Lavers was committed during the murder of Jennifer Burns; (7) Whether the murder of Mary Lavers can be characterized as "especially cruel" when an apparent motive for defendant's last act was to forestall her further suffering; (8) Whether the trial court erred in reducing or discounting the mitigating factors of defendant's mental impairment, intoxication, and previous good citizenship; (9) Whether the mitigating circumstances evidenced by defendant are, even if ever so slightly, sufficiently substantial to call for leniency and a life sentence; (10) Whether the prosecutor denied defendant due process of law by honoring a routine in which the murder victim's family's wishes are "the deciding factor" in the prosecutor's decision to seek the death penalty; and (11) Whether the trial court's order that defendant pay restitution of $18,797.60 for funeral expenses should be reduced or credited with payments from life insurance policies that defendant provided to Mary Lavers and Jennifer Burns. We address each of these issues, but do not address them in the same order as presented by defendant.


Defendant lived in apartment 2021 of the Arabian Trail Apartments in Phoenix with his wife, Mary Lavers (Mary), and her eleven-year-old daughter, Jennifer Burns (Jennifer or Jennie). At approximately 1:00 a.m. on November 13, 1988, defendant and Mary began arguing. At some point, Jennifer apparently turned on a cassette tape recorder and placed it between the pillows on her bed. During the argument, defendant told Mary that by refusing to get into bed as he ordered her to do, she was "making a mistake" that she might not "have to live with for very long." 1

Defendant confronted Mary and Jennifer as they prepared to leave the apartment. When defendant, who by then was armed with a knife, asked, "[t]hink I'd hurt you," Mary stated that she believed he would and Jennifer implored him twice to "[j]ust put the knife away and we won't think you will hurt us any more." When Jennifer said something else to defendant, he evidently cut her on the left wrist with the knife. Mary shouted out, "JENNIE, JENNIE, JENNIE, JENNIE, it's all right," as Jennifer cried. Defendant then stabbed Mary in the middle of her back, nearly severing her spinal cord and paralyzing her from the wound down. Mary screamed out "stop it, help" as defendant apparently chased Jennifer out of the apartment. She also cried out, "I'm dying, I'm paralyzed," and "[h]elp I can't move, I can't move. What did you do to JENNIE, what did you do to JENNIE."

At about 1:15 a.m., a resident in apartment 1021 heard "very loud pounding" on his front door. He called 911, but later called back and cancelled the call after deciding that "pranksters" had done the pounding. One or two minutes later, he heard "a moaning sound" outside the door and again called 911.

Meanwhile, defendant had returned to Jennifer's bedroom. He stated, "[y]ou should have been smart MARY." When Mary asked where Jennifer was, defendant responded, "[s]he's dying." Defendant apologized to Mary and told her he loved her, but blamed her for "push[ing] it." When Mary stated, "I'm dying," defendant responded, "I know you are." When Mary pleaded with defendant to help her, defendant responded, "[y]ou're bleeding just like a stuck hog, I love you so much." While Mary continued to ask for help and to complain about the pain she was experiencing, defendant continued to apologize and to blame Mary. When Mary asked whether defendant had killed Jennifer, he responded, "[s]he's gone MARY."

At some point, defendant armed himself with a .22 caliber revolver and promised to "take myself out too so we'll go together." When Mary begged, "please don't shoot me," defendant said, "I'm not gonna shoot you honey." Defendant then asked Mary to get up, but she told him that she was paralyzed. Defendant responded, "[h]oney, you're not paralyzed, get up, you're just lazy."

Defendant told Mary he would look to see if he could find Jennifer. When he returned to the bedroom, he told Mary, "JENNIE'S nowhere to be seen." Mary repeatedly begged defendant not to shoot her and stated that she was afraid of "[t]he bullet, the pain, the bullet." By approximately 2:00 a.m., Jennifer's tape recording ended.

The police found Jennifer lying by the front door of apartment 1021. Her eyes were open and she was in a "semiconscious" state, bleeding profusely from a chest wound and "gurgling" saliva and air bubbles from her mouth. She was pronounced dead within fifteen to twenty minutes of her arrival at John C. Lincoln Hospital.

After the police determined that Jennifer probably lived in apartment 2021, they knocked on the door to the apartment and announced that it was the police and that they were about to enter. As they began to put a pass key into the lock, the police heard Mary shout out, "[p]lease don't come in, he has got a gun, he will kill you." The officers then retreated down the stairway and called in the Special Assignments Unit (SAU).

SAU members began arriving at approximately 3:00 a.m., using the apartment directly below apartment 2021 as a staging area. While there, they could hear "moaning" coming from above them in apartment 2021. At 4:37 a.m., several officers heard a gunshot coming from apartment 2021. Defendant had shot Mary through the top of the head with a .22 caliber handgun at extremely close range. At 6:41 a.m., after negotiation attempts had failed, the police entered the apartment and arrested defendant.

Meanwhile, the police had obtained a search warrant for apartment 2021 that permitted a search for several named items as well as "ANY AND ALL EVIDENCE RELATING TO THE HOMICIDE OF JENNIFER BURNS W/F 15YR." When executing the search warrant, the police found a small cassette tape recorder on Jennifer's bed between and under two pillows. Because Detective Wheelis could see a tape inside the recorder, he picked up the recorder and pushed the play button, but it would not play. After partially rewinding the tape to determine if the recorder was functioning, he completely rewound the tape and listened to it. The detectives then determined that the tape had evidentiary value and seized it. Jennifer's fingerprints were found on the recorder.

On November 17, 1988, defendant was indicted for two counts of first degree murder. Count I alleged that defendant, "knowing that his conduct would cause death, with premeditation caused the death of JENNIFER BURNS...." Count II alleged that defendant, "intending or knowing that his conduct would cause death, with premeditation caused the death of MARY LOUISE LAVERS...."

Defendant filed a motion to dismiss, or, in the alternative, to remand the indictment for a new finding of probable cause. He claimed that the State denied him due process by failing to allege that he acted "intentionally" in count I. The trial court denied this motion. Defendant also filed a motion to suppress papers seized during the search of his apartment, claiming that the description in the search warrant of the items to be seized was not sufficiently precise and was a general warrant in violation of the state and federal constitutions. The trial court also denied this motion, but precluded the State from using confidential communications between attorney and client.

The State filed a motion to preclude evidence of intoxication and a motion to determine the admissibility of the tape recording. The court refused to exclude evidence of defendant's intoxication, at least as to count II, and found the tape admissible, subject only to proper foundation.

The jury found defendant guilty on both counts of first degree murder. At the presentence hearing, Dr. Heinz Karnitsching testified that the knife wound to Jennifer's chest was painful, and that a person suffering such a wound would not necessarily lose consciousness. Dr. George Bolduc testified that Mary died as a result of the gunshot wound to her head and the stab wound to her back. The stab wound caused paralysis below the level of the injury, rendering Mary unable to stand, walk, or use her legs to crawl. Despite the...

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