State v. McCall

• Citation: 677 P.2d 920,139 Ariz. 147
• Decision Date: 09 November 1983
• Docket Number: No. 5482,5482
• Parties: STATE of Arizona, Appellee, v. Edward Lonzo McCALL, Appellant.
• Court: Supreme Court of Arizona

Page 920

677 P.2d 920

139 Ariz. 147

STATE of Arizona, Appellee, v. Edward Lonzo McCALL, Appellant.

No. 5482.

Supreme Court of Arizona In Banc.

Nov. 9, 1983.

Reconsideration Denied Feb. 14, 1984.

Robert K. Corbin, Atty. Gen., William J. Schafer, III, Chief Counsel, Crim. Div., Gerald R. Grant, Asst. Attys. Gen., Phoenix, for appellee

Kemper & Henze by James H. Kemper, Phoenix, for appellant.

GORDON, Vice Chief Justice:

On December 10, 1981, a jury found appellant guilty of two counts of first degree murder, one count of conspiracy to commit first degree murder, one count of attempted first degree murder, three counts of kidnapping, three counts of armed robbery, and one count of first degree burglary. At a subsequent sentencing hearing, appellant was sentenced to death for each count of first degree murder, life imprisonment for the conspiracy count, twenty-one years imprisonment for the attempt count, twenty-one years imprisonment for each kidnapping count, twenty-one years for each armed robbery count, and twenty-one years imprisonment for the first degree burglary count. Timely appeal was filed from all convictions. This Court has jurisdiction under Ariz. Const. art. 6, § 5(3) and A.R.S. § 13-4031. We affirm the convictions and the sentences.

The facts in this case have been set out in some detail in our opinion in appellant's co-defendant's appeal, State v. Cruz, 137 Ariz. 541, 672 P.2d 470 (1983). We will set forth only those facts necessary for a full On appeal, appellant has raised eight issues:

understanding of the legal issues discussed herein.

1. Whether the denial of his repeated motions to sever constitutes reversible error;

2. Whether the admission of certain "other bad act" evidence constitutes reversible error;

3. Whether Marilyn Redmond's identification of him at his preliminary hearing was unduly suggestive thereby tainting her in-trial identification;

4. Whether the denial of his motion to suppress physical evidence seized in a search of his home constitutes reversible error;

5. Whether the admission of certain statements by alleged co-conspirators constitutes reversible error;

6. Whether the admission of certain photographs constitutes reversible error;

7. Whether the admission of testimony concerning the terms of Arnold Merrill's plea agreement constitutes reversible error;

8. Whether A.R.S. § 13-703 is unconstitutional in that a judge rather than a jury determines sentence or in that no guidance is given as to what may be considered in mitigation.

Motion to Sever

Prior to and during trial, appellant made repeated motions to sever his trial from that of his co-defendant. All of these motions were denied. He now claims that such denial was reversible error. We disagree.

As we have made clear, a trial court must grant a motion to sever "if necessary to promote a fair determination of guilt or innocence of any defendant, or if the court detects the presence or absence of unusual features of the crime or case that might prejudice the defendant," State v. Cruz, supra, 137 Ariz. at 543, 672 P.2d at 472; State v. McGill, 119 Ariz. 329, 580 P.2d 1183 (1978). Appellant claims that his defense was so antagonistic to that of his co-defendant Cruz that he was prejudiced by Cruz' defense and that the trial should have been severed. In Cruz' appeal to this Court, he made a similar argument. We held there that to require severance based on antagonistic defenses, a defendant must show that his defense and that of his co-defendant(s) were mutually exclusive. State v. Cruz, supra. Examining the trial of McCall and Cruz, we found that their "defenses were not mutually exclusive * * * [and] did not require severance." 137 Ariz at 545, 672 P.2d at 474. We have no reason to disturb that finding. The trial court was not required to sever based on the nature of the defenses.

A defendant may, however, be prejudiced by the actual conduct of a co-defendant's defense even where a severance is not mandated by the nature of the defenses. State v. Cruz, supra; United States v. Ziperstein, 601 F.2d 281 (7th Cir.1979), cert. denied, 444 U.S. 1031, 100 S.Ct. 701, 62 L.Ed.2d 667 (1980). Appellant points to the admission of "other bad act" evidence and to his waiver of his right to testify in his own behalf as indicia of that prejudice in his case.

Evidence of other wrongs is not generally admissible to show that the defendant is a bad person or has a propensity for committing crimes. State v. Hines, 130 Ariz. 68, 633 P.2d 1384 (1981). However, such evidence may be admitted for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Ariz.R.Evid. 404(b). It also may be admitted to complete the story of the crime. State v. Sanchez, 130 Ariz. 295, 635 P.2d 1217 (1981); State v. Reinhold, 123 Ariz. 50, 597 P.2d 532 (1979).

The "other bad act" evidence appellant complains of falls into two broad groups. The first involves testimony concerning a plan by Bracey, Hooper, and appellant to take over the drug business in South Phoenix and, in so doing, to murder an individual known as "Big Parker." The remaining "other bad act" evidence complained of involves testimony from two witnesses regarding appellant's participation in four earlier thefts. The identity of the participants in the four thefts was properly admitted in the joint trial because part of Cruz' defense strategy was to assert that the Redmond killings were the result of a "botched robbery" in which appellant and others took part. Cruz' attempt to show the similarity among these four thefts and the Redmond theft/murder was properly admitted as evidence of a common plan. State v. Mulligan, 126 Ariz. 210, 613 P.2d 1266 (1980); State v. Miller, 128 Ariz. 112, 624 P.2d 309 (App.1980). We find that no prejudice to appellant could have resulted from the testimony regarding the Klugman or Romero thefts because there was no testimony that appellant had been involved in them in any way. There was, however, testimony regarding appellant's participation in the Spiegal and Bissett thefts. Had appellant's motion to sever been granted, Cruz' defense theories would obviously not have been before the jury and the introduction into evidence of appellant's involvement in these latter two thefts would have been error. It would not, however, have been error requiring reversal. In view of the other overwhelming evidence against appellant, it is unlikely that a jury would have been prejudiced or outraged by the two prior thefts. See State v. Jackson, 124 Ariz. 202, 603 P.2d 94 (1979). Similarly, the introduction of this evidence into the joint trial did not create prejudice requiring severance.

                Such evidence demonstrated the relationship appellant had with Bracey and Hooper.  It helped explain to the jury what appellant meant when he told Mr. Merrill that he (appellant) was "changing sides" to join Bracey and Hooper and would be living "life in the fast lane."   We find such evidence properly admitted either as evidence of appellant's motive in joining Bracey and Hooper in the Redmond murder or as evidence completing the story for the jury
                

Appellant's second assertion of prejudice resulting from the denial of his motions to sever involves the waiver of his constitutional right to testify in his own behalf. Ariz. Const. art. 2, § 24. He argues that he was forced to forego that right because of the likely cross-examination on the "other bad act" evidence mentioned above. However, the "other bad act" evidence was properly admitted and, as appellant acknowledges, would therefore have been a proper subject for cross-examination. We find that appellant's waiver of his right to testify was not compelled but rather, as the trial court ascertained, it was a knowing and voluntary waiver made with full and complete advice from counsel. Such waiver is effective, State v. Martin, 102 Ariz. 142, 426 P.2d 639 (1967); State v. Thornton, 26 Ariz.App. 472, 549 P.2d 252 (1976), and does not establish the prejudice necessary to mandate severance. See State v. Barry, 25 Wash.App. 751, 611 P.2d 1262 (1980).

Objection to Certain "Other Bad Act" Evidence

In addition to arguing that the "other bad act" evidence was prejudicial and therefore warranted severance, appellant asserts that certain testimony from Mr. Merrill concerning the possible takeover of the drug business in South Phoenix was irrelevant. However, as noted in the "Motion to Sever" section above, the complained-of testimony was relevant as evidence of appellant's motive in joining Bracey and Hooper in the Redmond murders or as evidence completing the story for the jury. There was no error by the trial court in admitting this testimony over relevancy objections.

Pre-Trial Identification

Appellant asserts that he was denied due process of law when the trial court permitted the surviving victim, Marilyn Redmond, to identify him at his trial. Appellant argues that Mrs. Redmond's identification of him at the preliminary hearing was the result of an unduly suggestive identification It is fundamental that every criminal defendant has a due process right to a fair identification procedure. See, e.g., Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); State v. Dessureault, 104 Ariz. 380, 453 P.2d 951, reh'g. denied, 104 Ariz. 439, 454 P.2d 981 (1969), cert. denied, 397 U.S. 965, 90 S.Ct. 1000, 25 L.Ed.2d 257 (1970). Reliability is the linchpin in determining the fairness and admissibility of identification testimony. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Myers, 117 Ariz. 79, 570 P.2d 1252 (1977), cert. denied, 435 U.S. 928, 98 S.Ct. 1498, 55 L.Ed.2d 524 (1978). Even where a pre-trial identification process is unduly suggestive, the resultant in-court identification is admissible if, in view of the totality of...