State v. Mauro, 6329

CourtSupreme Court of Arizona
Writing for the CourtHAYS; HOLOHAN
Citation149 Ariz. 24,716 P.2d 393
PartiesSTATE of Arizona, Appellee, v. William Carl MAURO, Appellant.
Docket NumberNo. 6329,6329
Decision Date25 February 1986

Page 393

716 P.2d 393
149 Ariz. 24
STATE of Arizona, Appellee,
William Carl MAURO, Appellant.
No. 6329.
Supreme Court of Arizona, In Banc.
Feb. 25, 1986.

Page 395

[149 Ariz. 26]

Robert K. Corbin, Atty. Gen. by William J. Schafer, III, and Diane Hienton, Asst. Attys. Gen., Phoenix, for appellee.

Ratner & Walsh by Kathleen Walsh, Flagstaff, for appellant.

HAYS, Justice.

Appellant, William Carl Mauro, was convicted of one count of first degree murder, A.R.S. § 13-1105, and one count of child abuse, A.R.S. § 13-3623. He was sentenced to death for the murder conviction and to a term of 28 years for the child abuse conviction. The sentences were to run consecutively. We have jurisdiction pursuant to A.R.S. §§ 13-4031 and -4035.

The facts from the record follow. On November 23, 1982, Mauro and his family were eating breakfast when appellant's seven-year-old son David began crying and screaming. David was in the bathroom where he had been imprisoned for several days by his father. Mauro told his wife that he would make the boy be quiet. Mauro went into the bathroom and forced a rolled child's sock and two cloths down the boy's throat, thus suffocating the child. Mauro then went to a bedroom and returned with a suitcase in which he placed the child's body. As he left the family trailer with the suitcase, he told his wife to "pray."

After leaving the trailer, Mauro was observed carrying the suitcase through the residential neighborhood surrounding his home. Despite it being a very cold morning, appellant was wearing neither a coat nor shoes. When he reached an empty field, Mauro buried the suitcase under logs in a woodpile.

About one and one-half hours after he was seen near the field, Mauro appeared at a K-Mart store. There he asked employees to call the police. Flagstaff police received a call from an employee who said a man had entered the store claiming to have killed something. The employee described the man as being very excited and delirious. Several witnesses heard Mauro claim to have killed the devil and to have put him in a suitcase, but that he was still moving. Later, Mauro told these same witnesses that he had killed the devil, his son. Once again the K-Mart employee called the police to add this admission. He stated that Mauro was "out of it" and "really afraid."

When the police arrived, Mauro continued to claim that he had killed his son who was possessed by the devil. He insisted on showing police where the suitcase was concealed. Mauro told the officers that he'd take the "rap," and that "I know I'll get executed or go to the penitentiary, but I had to do it." He helped officers locate the suitcase and was then taken to the police station. Because of Mauro's behavior and the small size of the suitcase, officers were unwilling to open the suitcase until a bomb expert could examine it. When the bomb expert discovered the body, Mauro was taken back to the scene and formally arrested.

An autopsy of David's body revealed that he had died of asphyxiation. Although he was seven years old, David weighed only 38 pounds and was 46.2 inches tall. He had numerous bruises and abrasions over his body, some of which were recent. Additionally, marks on his ankles were consistent with having been bound, and he showed signs of malnutrition. Finally, the

Page 396

[149 Ariz. 27] wounds on David's body indicated a struggle shortly before death, including strong resistance to the sock being placed in his mouth.

Mauro's sole defense at trial was insanity. As a result of this court's decision in State v. Coconino County Superior Court, Division II (Mauro), 139 Ariz. 422, 678 P.2d 1386 (1984), the State retained the burden of proof on this issue. Testimony at trial revealed that Mauro had a history of mental problems, going back at least as far as 1970. He had been hospitalized at least ten (10) times during those years, including once in Flagstaff in February 1982, nine months before the killing. His mother also had a history of mental problems. Specifically, she had been diagnosed as a manic depressive (now known as bipolar affective disorder).

At the request of his court-appointed attorney, Mauro was seen by his Flagstaff psychiatrist, Dr. Dean Gerstenberger, on the day of the killing. Later, Dr. Gerstenberger was appointed by the court to evaluate appellant's competency to stand trial and his legal sanity at the time of the killing. At trial, the doctor testified that Mauro had slipped into a psychotic state some days prior to the killing and had remained there for some weeks after the episode. Dr. Gerstenberger further testified that appellant was legally insane under the M'Naghten rule when he killed David. He based this determination primarily on testimony regarding Mauro's behavior prior to the murders. Specifically, testimony revealed that Mauro spoke of space creatures outside the trailer which planned to take his family's souls; that he paced the floor all night, "pleading the blood"; that his wife's sister had come in spirit to take over his wife's soul; and that he had repeatedly rolled around on the floor. In light of this evidence, Dr. Gerstenberger diagnosed appellant as suffering from a bipolar affective disorder.

Dr. Michael Cleary, a Phoenix psychiatrist nominated by the State, was also appointed by the court to evaluate appellant. He testified that Mauro had a compulsive personality disorder with paranoid features and was not insane under the M'Naghten test. On cross-examination, the doctor stated that he had some doubt about appellant's sanity at the time of the killing, but he acknowledged that appellant was in a disturbed state of mind and was probably hallucinating during the two or three days prior to the killing. However, the doctor stated that the evidence of concealment of the body shows that Mauro knew right from wrong.


Prior to trial, appellant moved to sever the premeditated murder count in the indictment from the child-abuse count. A decision to grant denial of a motion to sever is within the sound discretion of the trial court and will be reversed only if that discretion is abused. State v. Cruz, 137 Ariz. 541, 544, 672 P.2d 470, 473 (1983). In deciding whether to grant the severance, the trial court weighs the possible prejudice to the defendant against the interests of judicial economy. Id.

First, appellant raises as error the court's refusal to sever the two counts in order to permit a fair determination of guilt under Rule 13.4(a), Rules of Criminal Procedure, 17 A.R.S. Appellant argues that joinder of the counts allowed the state to overcome the marital privilege statute which gives one spouse the right to keep the other spouse off the stand as a witness. A.R.S. § 13-4062(1). Specifically, appellant contends that the child-abuse count permitted spousal testimony to be introduced into evidence because the marital privilege is unavailable in a criminal proceeding "in which child neglect, dependency, abuse or abandonment is in issue." A.R.S. § 13-3620(D). The trial court denied appellant's motion to sever, stating that the killing of a child from the marriage is so hostile and antagonistic to the purposes of the marriage that the privilege should not apply. We agree with the trial court that even in the absence of the child-abuse count, the privilege would not apply.

Page 397

[149 Ariz. 28] The matrimonial privilege is unavailable when a spouse kills a child of the marriage. State v. Ulin, 113 Ariz. 141, 145, 548 P.2d 19, 23 (1976); State v. Figueroa, 122 Ariz. 190, 192, 593 P.2d 940, 942 (App.1979). Evidence was presented at trial revealing that both spouses engaged in acts of child abuse; however, only one parent committed the homicide. It is therefore unnecessary for us to address the argument as to whether the same result would occur when both parents are codefendants to the homicide. The trial court did not abuse its discretion.

Second, appellant claims that the child-abuse count was actually a lesser-included offense of the murder charge and, therefore, should not have been included in the indictment. The issue of lesser-included offense was not advanced at the trial level and therefore defendant has waived the issue. State v. Thomas, 130 Ariz. 432, 435, 636 P.2d 1214, 1217 (1981).

Finally, appellant claims that he was entitled to severance as a matter of right under Rule 13.4(b), Rules of Criminal Procedure, 17 A.R.S. This argument is entirely without merit. Entitlement to severance by right is only available to offenses joined under Rule 13.3(a)(1). See Rule 13.4(b). The two counts were joined under the "same conduct" provision of Rule 13.3(a)(2) and not the "same or similar character" provision of Rule 13.3(a)(1). The indictment was amended to allege that both the homicide and the child abuse involved the use of a dangerous instrument: "one white child's sock with two stripes and one white cloth measuring approximately 24 inches by 24 inches." (This cloth was referred to at trial as a diaper). The prosecution chose to charge appellant with only the actions of abuse that ultimately led to the death of David. Thus, since both charges were based on the "same conduct," the severance request was properly denied.


Appellant contends that there was an insufficient voir dire concerning the insanity defense and various religious issues in the case. Prior to the voir dire, both the prosecution and defense submitted extensive lists of voir dire questions to the trial judge. The court refused to ask any of the questions submitted by the defense on religion. From almost fifty questions submitted by both the prosecution and defense on insanity, the judge asked only one. He added another of his own to the list.

The scope of voir dire is left to the sound discretion of the trial court. State v. Tims, 143 Ariz. 196, 198, 693 P.2d 333, 335 (1985). Absent a clear abuse of discretion, limitation of voir dire will not be adjudged error on...

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