State v. Mann
| Decision Date | 11 March 1997 |
| Docket Number | No. CR-95-0077-AP,CR-95-0077-AP |
| Citation | 188 Ariz. 220,934 P.2d 784 |
| Parties | , 238 Ariz. Adv. Rep. 18 STATE of Arizona, Appellee, v. Eric Owen MANN, Appellant. |
| Court | Arizona Supreme Court |
Defendant Eric Owen Mann was convicted of first degree murder and sentenced to death for the killings of Richard Alberts and Ramon Bazurto during a drug deal. Appeal to this court is automatic on capital counts and we have jurisdiction pursuant to A.R.S. § 13-4031 and Ariz.R.Crim.P. 31.2(b). We affirm the judgment.
Defendant and his girlfriend, Karen Miller, rented a house in Tucson where they sold cocaine, marijuana, and guns. Typically Karen sold "eight-balls" (one-eighth of an ounce packets) of cocaine in the evening while Defendant worked on bigger drug deals.
In late November 1989, Defendant told Karen of his plan to rip off Richard Alberts, a friend also involved in the cocaine trade. Defendant set up a deal to sell about a kilogram of cocaine for roughly $20,000. According to Karen, Defendant knew he would have to "whack" (kill) Alberts after taking the money and giving Alberts a shoebox filled with newspaper instead of cocaine.
The plan changed when Alberts showed up with another man, Ramon Bazurto. Defendant, however, quickly made up his mind "to do it." The men entered the house and followed Defendant back to the master bedroom. Karen followed behind and stood in the doorway, between Alberts and Bazurto. After trading the bag of money for the shoebox, Alberts lifted the top of the box that contained only newspaper. Almost instantaneously, Defendant shot Alberts and then Bazurto. Each was shot once, Alberts through the heart and Bazurto through the lung, severing the aorta. Both bullets passed through the bodies and traveled through the walls of the house.
Alberts died almost instantly but Bazurto did not. According to Karen, he feebly attempted to reach for the gun he was carrying in his waistband. Defendant placed his foot on Bazurto's hand to stop him and described to Karen what was happening as the victim lost motor control and died. She testified it took from three to five minutes for Bazurto to die.
Defendant got a friend, Carlos Alejandro, to help him dump the bodies near a rural road in the vicinity of Fort Grant prison, near Safford. The next day, Defendant and Karen did a thorough cleaning job to erase all traces of the murder. All the walls and floors were scrubbed and patched, and the room was repainted. Defendant gave Alberts' car to an acquaintance to whom he owed money. He also dismantled his guns, destroyed the mechanisms with a hammer, and scattered the pieces, as well as the recovered bullets, in a lake. When questioned by police, Defendant told them Alberts and Bazurto had come to the house but left after the drug deal failed.
Nothing more came of the case until January 1994 when Karen Miller ended her relationship with Defendant, allegedly because of escalating domestic violence and his threats to "do it again." After moving, she told the police about the murder. Police tracked down Alejandro and the person to whom the car had been given and were able to corroborate Karen's story. Defendant then was arrested and charged with the murders of Alberts and Bazurto. Karen Miller and Alejandro were never charged for their part in the murders or cover-up.
At trial, Defendant was found guilty of the murders, based primarily on the testimony of Karen Miller and Carlos Alejandro. At sentencing, the trial judge found three aggravating factors: pecuniary gain (§ 13-703(F)(2)); multiple murders (§ 13-703(F)(8)); and, in the case of Bazurto, cruelty and depravity (§ 13-703(F)(6)). The judge found the statutory and non-statutory mitigators were insufficient when weighed against the aggravators and sentenced Defendant to death for both murders.
A. Trial issues
Defendant claims the trial judge committed fundamental error by admitting an inculpatory statement without determining whether the waiver of Defendant's Fifth Amendment rights was knowing, intelligent, and voluntary. The stipulation read: "Defendant was familiar with the area where the victim's [sic] bodies were found and had been in that area at the time the bodies were left there." This stipulation was made to preclude the prosecution from submitting evidence that Defendant was familiar with the area because he had been previously incarcerated at Fort Grant.
The judge told the jury, however, that it "is stipulated between the prosecution and defense that the defendant, Eric Mann, was familiar with the area along Arizona route 666 when the bodies of Richard Alberts and Ramon Bazurto Junior were found." Reporter's Transcript (R.T.), Oct. 28, 1994, at 5 (emphasis added).
After the stipulation was read, the prosecutor interjected that the stipulation should have read "where [not when] the bodies ... were found," and the judge reread it to the jury. After the lunch break the prosecutor again told the judge a mistake had been made, stating the stipulation should have read that Defendant had been in the area "prior to" not "on" the date the bodies were left. The exchange was:
In United States v. Miller, 588 F.2d 1256 (9th Cir.1979), the court held that when a stipulation amounts to a guilty plea, Rule 11 procedures must be followed. Id. at 1263; Fed.R.Crim.P. 11. But where stipulations are not tantamount to a guilty plea, the trial court need only assure that the stipulation was made voluntarily. Id. In State v. West, this court stated a defendant may be bound by trial counsel's strategic decisions to waive rights. Only when the circumstances are exceptional must a defendant consent to the waiver. 176 Ariz. 432, 447, 862 P.2d 192, 207 (1993). Here, defense counsel clearly made a tactical decision to stipulate and avoid revealing the prior incarceration. Furthermore, he decided not to have the stipulation corrected, presumably to avoid emphasizing it to the jury. The tactical decisions had merit and were reasonable. In West, this court stated, "We do not believe a stipulation to facts that the state could easily have proved amounts to an exceptional circumstance." Id. That principle is appropriately applied to the present case, in which Defendant claimed self-defense and did not deny killing the victims and disposing of their bodies. We see no error.
Defendant claims there was reversible error because Karen Miller testified she had not been granted immunity when she had and the prosecutor did not correct her testimony. Defendant's counsel questioned Karen Miller, asking:
R.T., Oct. 26, 1994, at 115-16. Defendant argues that the prosecutor committed misconduct by failing to bring out that the State had made a deal with Karen.
But the prosecutor did not hide the deal or Karen's bias from the jurors. During argument the prosecutor told the jurors, "[s]he's been granted or told she will not be prosecuted on this case simply because without that promise, we would not have the person who had pulled the trigger." R.T., Oct. 25, 1994, at 143. This point was driven home as well by Defendant in his opening statement and closing argument. Counsel stated that these were "self-serving statements of two people, Karen Miller and Carlos Alejandro, who both have gotten complete immunity." R.T., Nov. 1, 1994, at 30. We do not believe that Miller's arguably false testimony "in reasonable likelihood [could] have affected the judgment of the jury...." Napue v. Illinois, 360 U.S. 264, 271, 79 S.Ct. 1173, 1178, 3 L.Ed.2d 1217 (1959) (); see also Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972) (). B. Sentencing issues and independent review of aggravators and mitigators
This court independently reviews death sentences for error, determines whether the aggravating circumstances have been proved beyond a reasonable doubt, considers any mitigating circumstances, and then weighs the aggravating and mitigating circumstances in deciding whether the mitigating circumstances are substantial and warrant leniency. State v. Brewer, 170 Ariz. 486, 500, 826 P.2d 783, 797, cert. denied, 506 U.S. 872, 113 S.Ct. 206, 121 L.Ed.2d 147 (1992).
A defendant is eligible for the death penalty when the state has proven beyond a reasonable doubt the existence of at least one statutory aggravating circumstance. A.R.S. § 13-703(E) (amended 1993). In this case, the judge found three aggravating circumstances: pecuniary gain (§ 13-703(F)(5)), cruelty in the murder of Ramon Bazurto (§ 13-703(F)(6)), and multiple homicides (§ 13-703(F)(8)). Defendant contests the first two findings.
A.R.S. § 13-703(F)(6) is disjunctive, and a finding of either cruelty or heinous/depraved conduct is sufficient to find this aggravating factor....
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