State v. Lopez, CR-86-0155-AP
| Decision Date | 22 September 1988 |
| Docket Number | No. CR-86-0155-AP,CR-86-0155-AP |
| Citation | 158 Ariz. 258,762 P.2d 545 |
| Parties | STATE of Arizona, Appellee, v. George Villegas LOPEZ, Appellant. |
| Court | Arizona Supreme Court |
Robert K. Corbin, Atty. Gen. by William J. Schafer III, Janet Keating, Asst. Attys. Gen., Phoenix, for appellee.
John M. Antieau, Phoenix, for appellant.
Defendant George Villegas Lopez and his brother, Jose Villegas Lopez, were jointly indicted for armed robbery and first degree murder. The murder charge alleged a premeditated murder or, in the alternative, a felony murder. The offenses were alleged to have been committed on October 4, 1985, against the victim identified in the indictment as "Hugo L. Munoz, aka Macario Suarez." 1
Upon motion, the trial court severed defendant's trial from that of his brother. The brother, Jose Lopez, pled guilty to first degree murder and received a stipulated term of life imprisonment. On appeal, we affirmed his conviction. State v. Lopez, 153 Ariz. 285, 736 P.2d 369 (1987).
Meanwhile, defendant's case proceeded to a jury trial. At the close of the state's case, defendant moved for judgment of acquittal on the armed robbery charge, citing an insufficiency of evidence. He also moved for judgment of acquittal on the felony murder charge on the same grounds, because the armed robbery was the predicate felony for the felony murder charge. Finally, he moved to dismiss the premeditated murder charge, claiming an insufficiency of evidence to support a finding of premeditation. The trial court denied these motions, as well as similar defense motions made at the close of the state's case. The jury found defendant guilty of both armed robbery and first degree murder. After denial of defendant's motion for a new trial, he was sentenced to a term of fourteen years imprisonment for armed robbery and to death for first degree murder.
Appeal to this court is automatic, Ariz.R.Crim.P. 26.15 and 31.2(b) 17 A.R.S. We have jurisdiction under Ariz.Const. art. 6, § 5(3) and A.R.S. §§ 13-4031, -4033, and -4035.
On October 5, 1985, two young people reported seeing a body floating in the Roosevelt Canal west of Phoenix in Maricopa County. The body had visible stab wounds and head lacerations; its hands and feet were tied. There was no identification on the body, but it was later determined to be that of Macario Suarez. The medical examiner who conducted the autopsy determined that Suarez had suffered seven stab wounds plus a number of crushing blows to the skull with a blunt instrument, such as a jack handle. These injuries combined to cause Suarez' death and he was dead before his body was placed in the canal.
The evening before his body was discovered, Suarez had been in the company of defendant George Lopez, the defendant's brother Jose Lopez, and Jose's girl friend, Tracy Fulkerson. Earlier that afternoon the Lopez brothers and Fulkerson had visited Suarez at his place of employment. Jose Lopez and Suarez discussed some plans for the four individuals to get together and go cruising in Suarez' car later that evening. At approximately 7:00 p.m. that evening Suarez, driving his Monte Carlo, picked up the three individuals at a park, and the four of them drove around Phoenix for several hours. Twice they stopped at a convenience store and Suarez bought beer for all of them. They also smoked some marijuana that Suarez provided.
At one point in the evening the four drove to the top of South Mountain where they continued to drink beer and smoke marijuana. Either defendant or his brother drove Suarez' car back down the mountain and then Suarez resumed driving. Fulkerson was dropped off at her home at about 10:00 p.m.
A little after midnight, defendant and his brother Jose arrived at their brother Frank's home driving Suarez' car, but without Suarez. There was a brief conversation, some items were removed from the trunk of the car, and the defendant and his brother dumped some items in a garbage can near Frank Lopez' home. Defendant and his brother appeared as if they had been drinking. Neither had any injuries to his face or hands. A witness noticed what appeared to be blood on Jose Lopez' shoes and socks.
The police later recovered several items that the Lopez brothers had placed in the garbage can. These included a piece of brown carpeting, a black rubber hose, a piece of sand paper, a funnel-shaped piece of filter paper, a chamois, a brown paper bag and a cardboard box. All of the items appeared to be blood stained. These items were tested and found to contain human blood which could not have come from either of the Lopez brothers, but could have come from Suarez. No identifiable latent fingerprints were found on the items.
In the early morning hours of October 5, sometime after the late night activity at Frank Lopez' house, the Phoenix Fire Department investigated a car fire at approximately 3100 West Taylor in the alley. At trial, defendant claimed to have parked the car in an alley behind a friend's house at 33rd Avenue and Melvin, several blocks from where the car was found by the Phoenix Fire Department. The car, Suarez' Monte Carlo, was still smoldering when an arson investigator arrived just after firefighters had extinguished the blaze. The arson investigator ruled out accidental causes for the fire and determined that it had been deliberately set by igniting a flammable liquid which had been poured throughout the interior of the car.
Defendant and his brother were stopped by Phoenix police on the morning of October 7, 1985, and taken to police headquarters for questioning. Defendant's resulting statement to the police and his conflicting trial testimony constitute the only direct testimonial evidence concerning what allegedly happened to Suarez.
After being advised of his Miranda rights, defendant initially denied any knowledge of the death of Suarez. However, after being shown a photograph of Suarez, the defendant admitted that he had killed him. The defendant stated that a fight had started when Suarez, for no apparent reason, came at him with a knife. In this initial statement, defendant claimed that he first disarmed the victim and then killed him. He claimed his brother's only involvement had been to help him put the body in the trunk of the car and then, at the canal, to help tie the body up and put it in the canal.
Both in this initial statement and at trial, defendant said that he and his brother drove around for a while after dumping Suarez' body in the canal. Then they went to Frank's house and disposed of the items from the trunk. Defendant said that he then went to a party at a friend's house, where he parked Suarez' car and left the keys in the ignition. According to him, the next morning the car was gone.
After the police interview, the defendant led the investigating officers on a trip throughout west Phoenix, directing them to a vacant lot where Suarez had been killed, to an alley where Suarez' wallet and defendant's T-shirt had been thrown in a trash can, and to the canal bank where Suarez' body had been trussed up and thrown in the canal.
During the questioning, the investigating officers had observed blood stains on the defendant's undershorts that were visible above his pants. Defendant's shorts, trousers and T-shirt were impounded by police upon his arrest. Later testing showed that the blood on the undershorts could not have come from defendant or his brother, but could have come from Suarez.
At trial, defendant's testimony varied significantly from his statement made to the officers on October 7, 1985. He explained the differences by saying that in his October 7, 1985, statement he was trying to protect his brother. By the time of the trial, his brother had pled and been sentenced. At trial, defendant continued to assert that Suarez had come at him with a
[158 Ariz. 262] knife. However, he denied that he killed Suarez and testified, instead, that he had quickly disarmed Suarez and his brother alone had then killed him by repeatedly stabbing him and hitting him with the jack handle.
Defendant raises numerous issues on appeal with respect to both the guilt phase and the sentencing phase of his trial. Because of the manner in which we dispose of the issues, we need only resolve the following questions:
1) Was there sufficient evidence to submit the issue of premeditation to the jury?
2) Was there sufficient evidence to submit the armed robbery charge and, therefore, the felony murder charge, to the jury?
3) Was the jury adequately instructed on the defense of justification?
The trial court submitted the issue of premeditated murder to the jury along with the lesser-included offenses of second degree murder and manslaughter. Defendant claims there was insufficient evidence to justify submission of the issue of premeditation. Unless there is a complete absence of probative evidence to support a particular finding, it is appropriate to submit the issue to the jury. State v. Girdler, 138 Ariz. 482, 488, 675 P.2d 1301, 1307 (1983), cert. denied, 467 U.S. 1244, 104 S.Ct. 3519, 82 L.Ed.2d 826 (1984). Using this standard, our review of the record persuades us that the issue of premeditation was properly submitted to the jury in this case.
"Premeditation" is defined by statute as follows:
[T]hat the defendant acts with either the intention or the knowledge that he will kill another human being, when such intention or knowledge precedes the killing by a length of time to permit reflection. An act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion.
A.R.S. § 13-1101(1).
The case law regarding premeditation is clear and was summarized in State v. Kreps, 146 Ariz. 446, 449, 706 P.2d 1213, 1216 (1985), as follows:
The state bears the burden of proving premeditation beyond a reasonable doubt. State v. White, 144 Ariz. 245, 697 P.2d 328 (1985). To make this showing, the state ...
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