State v. Lopez
| Decision Date | 16 January 1990 |
| Docket Number | No. CR-87-0184-AP,CR-87-0184-AP |
| Parties | STATE of Arizona, Appellee, v. Samuel Villegas LOPEZ, Appellant. |
| Court | Arizona Supreme Court |
Defendant, Samuel Villegas Lopez, was convicted of first degree murder, kidnapping, sexual assault, and burglary. He was sentenced to death for the murder and to aggravated, consecutive terms of twenty-one years for each of the other convictions. He appeals. We have jurisdiction under Ariz. Const. art. 6, § 5(3), and A.R.S. § 13-4031.
1. Whether the trial court erred by instructing the jury on two theories of first degree murder but submitting only one form of verdict for first degree murder.
2. Whether the trial court erred by denying defendant's motion for directed verdicts on the sexual assault charges.
3. Whether the trial court erred by not instructing the jurors on second degree murder.
4. Whether the trial court committed fundamental error by failing to give a Willits instruction sua sponte.
5. Whether the jury instruction on dangerousness constituted fundamental error.
6. Whether the trial court erred by finding that defendant's prior conviction for resisting arrest was a felony "involving the use or threat of violence on another person" within the meaning of A.R.S. § 13-703(F)(2).
7. Whether the trial court erred by finding that the murder was especially cruel within the meaning of A.R.S. § 13-703(F)(6).
8. Whether the trial court erred by finding that defendant failed to establish as a mitigating circumstance that his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired.
9. Whether art. 4, pt. 1, § 1(6) of the Arizona Constitution precludes the Arizona Legislature from authorizing judges to impose death penalties.
On October 29, 1986, sometime around 11:00 a.m., a Phoenix police officer made a "check welfare" call at the apartment residence of the murder victim. The check was in response to a call from the victim's fellow employees expressing concern that the consistently prompt victim inexplicably failed to arrive at work.
Approaching the apartment, officers noticed a broken window next to the front door. Entering the apartment, they discovered the partially nude body of the victim. Overturned and broken furnishings in the blood-splattered apartment indicated that a tremendous struggle took place prior to the murder. A scarf had been stuffed into the victim's mouth, and she had been blindfolded with her pajama pants. An autopsy revealed that her throat had been slashed, and she had been stabbed twenty-three times in her left breast and upper chest and three times in her lower abdomen. Seminal fluid was found in both her vagina and anus.
Defendant had been seen in the neighborhood the night of the crime. He was also seen in the early morning after the murder walking down the street, soaking wet, as if he had recently washed himself. Several days after the murder, the police were questioning defendant about an unrelated matter when he mentioned something about a woman who had been stabbed and whose throat had been slashed.
The information that the victim's throat had been slashed had never been released to the public. Realizing that only the murderer would know of the slashing, the police focused their investigation upon defendant. A check of his fingerprints matched those found at the victim's apartment and his body fluids matched those obtained from the victim's body.
A jury convicted defendant of first degree murder, sexual assault, kidnapping, and burglary. After a sentencing hearing, the trial judge found two statutory aggravating circumstances: (1) the defendant had a prior conviction for resisting arrest, which was considered a death-qualifying conviction under A.R.S. § 13-703(F)(2); and (2) the murder was committed in an especially heinous, cruel or depraved manner under A.R.S. § 13-703(F)(6). In support of mitigation, defendant argued that his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired. The trial court found that defendant did not prove this mitigating factor by a preponderance of the evidence. Finding no other mitigation, the trial judge sentenced defendant to death for the murder and to aggravated, consecutive terms of twenty-one years for each of the other convictions.
Defendant contends that the state's use of two theories of first degree murder (premeditated and felony murder) and the use of two felonies supporting the felony murder charge (sexual assault and burglary) denied him due process of law and the right to a unanimous jury verdict.
We have held that it is permissible to submit one form of verdict to a jury for first degree murder although the state proceeds under both premeditation and felony murder theories. See State v. Smith, 160 Ariz. 507, 513, 774 P.2d 811, 817 (1989). In a case predating Smith, we held that, although a unanimous jury verdict is required on whether the defendant committed the criminal act charged, a "defendant is not entitled to a unanimous verdict on the precise manner in which the act was committed." State v. Encinas, 132 Ariz. 493, 496, 647 P.2d 624, 627 (1982). In the Smith case, we did urge trial courts in the future to submit alternate forms of verdict when alternate theories of first degree murder are submitted to a jury. The instant case was tried prior to the issuance of the Smith opinion.
In this case, the defendant refines somewhat the argument made and rejected in Smith and Encinas. Defendant challenges the use of one verdict form when two felonies in support of the felony murder theory are alleged. He contends this deprived him of a unanimous jury verdict and due process. We note, however, that defendant was in fact unanimously convicted of both of the underlying felonies of sexual assault and burglary. Thus, defendant clearly was not prejudiced. In any event, we see no distinction between the state's use of dual felony murder theories and the state's use of dual first degree murder theories. In neither event is a defendant entitled to a unanimous verdict on the precise manner in which the crime is committed. See Encinas, 132 Ariz. at 496, 647 P.2d at 627.
Defendant was charged with two counts of sexual assault. The state's theory was that one assault occurred with vaginal penetration and the other assault occurred with anal penetration. A toxicologist testified that it was possible that the seminal fluid leaked from the vagina to the rectum. After the state rested its case, defendant moved for a directed verdict on the sexual assault counts. The court denied the motion. During deliberations, the jury inquired whether one count related to anal intercourse and one to vaginal intercourse. After being informed that such was the case, the jury convicted on one count of sexual assault and acquitted on the other. On appeal, defendant contends the evidence is insufficient to support the one guilty verdict.
Under A.R.S. § 13-1406(A), sexual assault is committed "by intentionally or knowingly engaging in sexual intercourse ... with any person without consent of such person." Defendant contends that there is a lack of evidence of force or fear accompanying the sexual act and that the evidence precludes a finding that consent was withheld. In part, defendant appears to argue that the intercourse may have occurred after death. For purposes of determining the sufficiency of the evidence, the toxicologist's testimony that his tests showed that the sexual act "happened right prior to death" disposes of this argument. R.T. 5/22/87, at 24.
In determining the sufficiency of the evidence, we view the evidence in the light most favorable to sustaining the verdict and resolve all reasonable inferences against the defendant. State v. Long, 121 Ariz. 280, 589 P.2d 1312 (1979). Our task is to determine whether sufficient evidence existed so that a rational trier of fact could have found guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Our review of the evidence, some of which is referred to in the above statement of facts, leads inexorably to the conclusion that the trial court properly denied the motion for directed verdict.
Defendant contends the jury should have been instructed on second degree murder based on evidence of defendant's intoxication. The jury did receive an instruction informing it as to the legal effect of intoxication. The trial court, however, denied defendant's request for a second degree murder instruction.
As previously discussed, the state proceeded on dual theories of first degree murder in this case, i.e., premeditated and felony murder. No lesser-included homicide offense exists for felony murder; thus, the trial court did not err by failing to so instruct on the felony murder theory. State v. Celaya, 135 Ariz. 248, 255, 660 P.2d 849, 856 (1983) (citing State v. Arias, 131 Ariz. 441, 641 P.2d 1285 (1982)).
Under A.R.S. § 13-1101(1), premeditated murder occurs if the defendant intends or knows that his acts will kill another and his intention or knowledge precedes the killing by a length of time sufficient to permit reflection. See State v. Rankovich, 159 Ariz. 116, 122, 765 P.2d 518, 524 (1988). The jury may consider voluntary intoxication to negate the mental state of "intentionally" but not the mental state of "knowingly." See A.R.S. § 13-503; State v. Ramos, 133 Ariz. 4, 6, 648 P.2d 119, 121 (1982). See also State v. Neal, ...
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