State v. Lee

• Decision Date: 21 May 1996
• Docket Number: CR-93-0323-T,Nos. CR-93-0111-A,s. CR-93-0111-A
• Parties: STATE of Arizona, Appellee, v. Darrel E. LEE, Appellant. /AP.
• Court: Arizona Supreme Court

Page 692

917 P.2d 692

185 Ariz. 549

STATE of Arizona, Appellee, v. Darrel E. LEE, Appellant.

Nos. CR-93-0111-AP, CR-93-0323-T/AP.

Supreme Court of Arizona, In Banc.

May 21, 1996.

[185 Ariz. 551] Grant Woods, Attorney General by Paul J. McMurdie, Chief Counsel, Criminal Appeals,

[185 Ariz. 552] and Susanna C. Pineda, Assistant Attorney General, Phoenix, for Appellee

Michael J. Burke, La Paz County Public Defender, Parker, for Appellant.

OPINION

ZLAKET, Vice Chief Justice.

FACTS AND PROCEDURAL HISTORY

On December 5, 1991, defendant Darrel E. Lee and a companion, Karen Thompson, approached 57-year-old John Anderson as he was leaving a Phoenix medical clinic and asked him for a ride. When Anderson agreed, they got into his car. Although unarmed, Lee announced that he had a gun and directed Anderson to drive south on the freeway. When they arrived in Chandler, Thompson demanded Anderson's wallet, which contained a small amount of cash, some credit cards, and an automatic teller machine (ATM) card. Thompson, accompanied by defendant, used the ATM and credit cards repeatedly throughout the next five days, both before and after Anderson's murder.

At some point, defendant suggested that they tie up Anderson and dump him alongside the road. After binding his hands and feet and placing him in a ditch, however, the couple decided not to leave him there. Instead, they put him in the trunk of the car. During most of this time, Anderson was pleading for his life.

Defendant and Thompson drove back to Phoenix and then toward California, stopping frequently to use cocaine and alcohol. They eventually decided to kill Anderson to avoid apprehension. Defendant stated that he would asphyxiate Anderson with the car's exhaust fumes and obtained a hose for this purpose. The couple discussed the anticipated killing as they continued their journey. Approximately eight hours after placing Anderson in the trunk, defendant and Thompson turned back toward Phoenix.

Anderson somehow managed to get untied and pry open the trunk of the car. He found a windshield sun screen reading "NEED HELP; CALL POLICE," and held it out of the vehicle. Two men in another car saw the sign and the frightened victim and called the police at the first available telephone. At approximately 11:45 p.m., two officers responded to the call. Because of darkness and rugged terrain in the area, however, they were able to conduct only a rudimentary search.

Meanwhile, defendant had exited the interstate highway and stopped the car at about 10:30 p.m. He and Thompson attempted to suffocate Anderson with car fumes by running the hose from the exhaust pipe into the trunk, but were unsuccessful because Anderson kept pushing up the trunk lid. During a pause in which the couple used more cocaine and discussed the situation, the victim escaped from the trunk and attempted to flee. Defendant chased Anderson and wrestled him to the ground. Thompson then brought defendant a belt, with which he attempted to strangle Anderson. The belt broke, and defendant yelled for Thompson to get a rock. As defendant choked Anderson with his hands, Thompson hit the victim in the head with the rock, fracturing his skull.

Defendant and Thompson placed the body in the trunk of the car. After driving to California, and then back to Phoenix, the couple eventually went to Tucson. There, they purchased a shovel and buried Anderson in a shallow grave outside the city.

The foregoing facts are taken primarily from Thompson's testimony. Defendant initially denied all participation in the crimes, later admitted some involvement with the car and the credit card spending in California, and finally confessed to a defense-requested psychiatrist that he was present during the murder and was holding Anderson down when Thompson struck him. Evidence found at the scene of the crime included the sun shield, pieces of a belt containing blood spatters, defendant's prescription sunglasses, and a rock bearing blood and hair. Anderson's trifocals were found in the trunk of the automobile, along with blood stains matching his type. Information given by Thompson after she entered into a plea agreement in April 1992 led to the discovery of the victim's remains.

On January 28, 1992, a La Paz County grand jury indicted defendant and Thompson on one count each of first-degree murder, kidnapping, theft, armed robbery, and credit card theft. Defendant pleaded not guilty to all charges. Thompson entered a plea of guilty to first-degree murder and armed robbery. A condition of her plea agreement was that she testify against defendant. On November 18, 1992, following a jury trial, defendant was convicted on all counts.

An aggravation/mitigation hearing was conducted, and on March 8, 1993, the trial judge sentenced defendant to death for first-degree murder. He found in aggravation that defendant had a prior felony conviction involving the use or threat of violence (pursuant to the former version of A.R.S. § 13-703(F)(2)); that he had participated in this killing for pecuniary gain (A.R.S. § 13-703(F)(5)); and that the murder was perpetrated in an especially cruel manner (A.R.S. § 13-703(F)(6)). He also determined that the following mitigation existed but was not substantial enough to call for leniency: that defendant was remorseful (but only long after the killing); that he admitted his guilt (but only after being convicted); that he lacked education and had a low level of intelligence (but not significantly low); that he had strong family support (but which apparently had not favorably influenced his behavior in the past); that he was a "follower" by nature (but rather than being under Thompson's control was a full and willing participant in the murder); that Thompson received a life sentence (but only pursuant to a plea agreement that defendant had also been offered and had rejected); and that the prosecutor had recommended against the death penalty.

After finding that the kidnapping and armed robbery were dangerous offenses, the court sentenced defendant to 21 years on each charge. It also sentenced him to 2.5 years for credit card theft and 10 years for theft. All sentences were consecutive to each other and to the death sentence.

On March 8, 1993, an automatic notice of appeal from the death sentence was filed. On March 18, 1993, defendant filed a notice of appeal from his other convictions and sentences. The appeals were consolidated before this court. We affirm all convictions and the death sentence, but modify the sentences for kidnapping, armed robbery, and theft.

PRELIMINARY ISSUES

Defendant raises numerous issues relating to trial and sentencing. Three of these are constitutional arguments that have already been rejected by this court and the United States Supreme Court. Requiring capital defendants to prove mitigating circumstances by a preponderance of the evidence is not unconstitutional. Walton v. Arizona, 497 U.S. 639, 649-52, 110 S.Ct. 3047, 3055-56, 111 L.Ed.2d 511 (1990); State v. West, 176 Ariz. 432, 455, 862 P.2d 192, 215 (1993), cert. denied, --- U.S. ----, 114 S.Ct. 1635, 128 L.Ed.2d 358 (1994). Capital sentencing by a judge instead of a jury is not constitutionally prohibited. Walton, 497 U.S. at 647-50, 110 S.Ct. at 3054-55; West, 176 Ariz. at 454, 862 P.2d at 214. Lastly, the death penalty is not unconstitutionally arbitrary and capricious in its application. West, 176 Ariz. at 455, 862 P.2d at 215. We decline to reconsider these previous rulings.

Defendant also challenges the constitutionality of Arizona's death penalty statute when aggravating and mitigating circumstances are "in balance." See, e.g., State v. Richmond, 114 Ariz. 186, 196, 560 P.2d 41, 51 (1976), cert. denied, 433 U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1101 (1977). We see no need to address this argument; it is based entirely on the assertion that such a balance exists in this case, a premise with which we do not agree.

ALLEGED TRIAL ERRORS

Defendant raises two claims of error at trial: improper prosecutorial vouching of witnesses and improper refusal to grant a change of venue. He argues that his right to a fair trial under the United States Constitution's Sixth and Fourteenth Amendments and Article 2, Sections 4 and 24 of the Arizona Constitution was violated. We disagree and affirm all convictions.

Prosecutorial Vouching

Defendant claims that the prosecutor impermissibly vouched for witnesses Karen Thompson and Gene Vernoy during closing argument. While discussing certain evidence, the prosecutor stated with regard to Thompson, "[n]ow she's been, I think, honest when she says she wasn't even aware that [other witnesses] had seen her...." Additionally, in arguing that defendant had dropped his glasses at the scene, the prosecutor expressed his personal belief that there was no other way for them to have been found there. He also stated, regarding Gene Vernoy's less-than-accurate description of the person who was seen with Thompson, "I think he was an honest man, certainly an honest man, but I think he made an honest mistake." Defense counsel did not object to any of these statements at trial. Failure to object constitutes waiver absent fundamental error. State v. Cannon, 148 Ariz. 72, 79, 713 P.2d 273, 280 (1985).

It is impermissible for a prosecutor to place the prestige of the government behind his witnesses or suggest that information not presented to the jury supports a witness's testimony. State v. Vincent, 159 Ariz. 418, 423, 768 P.2d 150, 155 (1989). That did not occur here. The prosecutor essentially conceded that Thompson and Vernoy had been mistaken in parts of their testimony (regarding the presence of another car in the area, and the size of the man seen with the woman). Moreover, the remark pertaining to defendant's glasses was more about the physical evidence at the scene than about Thompson's testimony. Defendant had maintained that the glasses were found in a position that would be unexpected if t...