State v. McCullough
| Decision Date | 30 November 2017 |
| Docket Number | No. 2 CA-CR 2016-0342,2 CA-CR 2016-0342 |
| Parties | THE STATE OF ARIZONA, Appellee, v. BRUCE ALAN MCCULLOUGH, Appellant. |
| Court | Arizona Court of Appeals |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
The Honorable Richard D. Nichols, Judge
AFFIRMED
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel, Phoenix
By Tanja K. Kelly, Assistant Attorney General, Tucson
Counsel for Appellee
By Robb P. Holmes, Assistant Legal Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISIONPresiding Judge Vásquez authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Eppich concurred.
¶1 Following a jury trial, Bruce McCullough was convicted of first-degree murder and sentenced to life in prison without the possibility of release for twenty-five years. On appeal, McCullough contends the trial court erred in denying his motions to suppress, admitting unauthenticated autopsy photographs, admitting other-act evidence, denying his motion for a mistrial, and denying his motion for a judgment of acquittal. He also argues the jury instructions improperly shifted the state's burden of proof. For the reasons stated below, we affirm.
¶2 We view the facts in the light most favorable to affirming McCullough's conviction. See State v. Musgrove, 223 Ariz. 164, ¶ 2 (App. 2009). In March 1976, D.S.'s mother went to visit her daughter at the house D.S. shared with McCullough. When no one answered the door, D.S.'s mother left, went shopping, and returned several hours later. Again, however, no one answered the door. A neighbor approached D.S.'s mother, who had grown concerned for her daughter's wellbeing, and the two went around to the back of the house, where the mother crawled through a window. She walked through the bedroom into the hallway, where she saw "[D.S.'s] legs protruding out of the bathroom doorway." Upon touching her daughter's leg and thinking it was cold, she began "yell[ing] for the gentleman outside to come in, that [her daughter] was hurt." After the neighbor went inside, he immediately "grabbed [the mother's] arm and . . . pulled [her] out of the house." They went back to his house and called for emergency services.
¶3 Shortly thereafter, Tucson Police Department officers and paramedics responded. After entering the house, Officer Thomas smelled a "very strong stench" that he thought was a "body wasting." He saw a "large butcher knife laying on the table" and a trail of blood from the living room through the kitchen, down the hallway, and into the bathroom. He thought there must have been an altercation because he noticed "overturned furniture, broken vases, [and] broken bottles," as well asbloodstained clothing, throughout the kitchen and living room. He also saw D.S.'s legs protruding from the bathroom into the hallway.
¶4 In the bathroom, Thomas saw that D.S. was lying face down with a "large quantity of body fluid and blood . . . caked to the floor and . . . completely around [her body]." He also saw three concrete bricks near D.S.'s head. According to Thomas, the brick "closest to her head had a quantity of blood and . . . brain material" on it, while the other two bricks also had bloodstains on them. He noticed a "large gaping hole" in the back of D.S.'s head, such that "you could basically look straight down into her skull." The paramedics approached the body and advised that "there[ was] nothing [they could] do."
¶5 A forensic pathologist, Dr. Winston, later determined D.S.'s cause of death to be "blunt [force] injuries of the head," with "sharp force injuries as a contributing factor." He identified multiple lacerations and abrasions on D.S.'s face, a "sharp force injury" to her neck and wrist, and a "large laceration" to the back of her head. With respect to the "large laceration," Dr. Winston explained that "part of the [skull] bone [was] missing," leaving the "underlying brain" exposed.
¶6 After detectives searched unsuccessfully for McCullough, a warrant was issued for his arrest. Thirty-seven years later, in May 2013, detectives in the cold case homicide unit found McCullough living in San Diego, California, under a different name. A grand jury indicted him for first-degree murder.
¶7 At trial, McCullough testified, acknowledging that he had a physical altercation with D.S. in March 1976 and that she had died as a result. However, he maintained that she was the instigator and that he had only acted in self-defense. He explained that, after the fight, he attempted suicide and was admitted to a locked hospital ward for treatment. McCullough testified that he left without being properly discharged and traveled to San Bernardino, California, on a freight train. After living in an abandoned church for about three months, McCullough hitchhiked to San Diego, where he resided until 2013.
¶8 The jury found McCullough guilty of first-degree murder, and the trial court sentenced him as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
¶9 McCullough first argues the trial court erred in ruling on his motion to suppress (1) McCullough's statements made to detectives in 2013; (2) observations made by police during their initial entry into McCullough's house; and (3) the coroner's observations—as contained in his autopsy report—upon his entry into McCullough's house. We review a ruling on a motion to suppress for an abuse of discretion, and, in doing so, our review generally is limited to the evidence presented at the suppression hearing. State v. Spencer, 235 Ariz. 496, ¶ 8 (App. 2014). But because there was no hearing in this case, to the extent we need to, "we draw our facts from the uncontested material appended to [McCullough's] suppression motion." State v. Navarro, 241 Ariz. 19, n.1 (App. 2016). In addition, we review related constitutional issues de novo. State v. Gay, 214 Ariz. 214, ¶ 4 (App. 2007).
¶10 Before trial, McCullough filed a motion to suppress his statements made to detectives in 2013, based on a violation of his Sixth Amendment right to counsel.1 Attached to his motion was a letter written by attorney Donn Alpert in December 1976, indicating that McCullough's parents had retained Alpert "with reference to the pending investigation of their son" and requesting "no law enforcement officer or agents of any law enforcement division question [McCullough] with reference to the outstanding charges." McCullough reasoned that Alpert's representation letter was still in effect in 2013, when two detectives questioned him in his San Diego home after reading him the Miranda2 warnings. McCullough argued that the detectives had no right to do so because he did not waive his Sixth Amendment right by initiating the communication himself.
Accordingly, McCullough maintained that the detectives had "ignored" his right to counsel and that his statements must be suppressed.
¶11 In response, the state argued the Sixth Amendment is a "personal right[] that cannot be invoked by a third party" and, therefore, Alpert's letter was insufficient to trigger McCullough's right to counsel. In addition, relying on Maryland v. Shatzer, 559 U.S. 98 (2009), the state asserted that, even if McCullough's right to counsel had been invoked, the detectives could "reinitiate questioning" because "there was effectively a break in custody" that removed "any threat of a 'police dominated atmosphere.'" The trial court denied McCullough's motion without an evidentiary hearing. It essentially adopted the state's position, reasoning that McCullough's Sixth Amendment right "had not attached since he did not personally invoke his right to counsel." Even assuming McCullough's Sixth Amendment right had "attached via . . . Alpert's letter," the court further reasoned that "law enforcement [was] allowed to re-initiate questioning" because McCullough was never in custody and it had "been nearly 40 years since the right to counsel would have been invoked."
¶12 The Sixth Amendment to the United States Constitution provides defendants with the right to assistance of counsel for their defense. U.S. Const. amend. VI; see State v. Pecard, 196 Ariz. 371, ¶ 26 (App. 1999). This fundamental right "is meant to assure fairness in the adversary criminal process." United States v. Morrison, 449 U.S. 361, 364 (1981). When a suspect invokes his right to counsel, all questioning must stop. Edwards v. Arizona, 451 U.S. 477, 481 (1981); State v. Smith, 193 Ariz. 452, ¶ 30 (1999). In addition, after a suspect requests counsel, a subsequent waiver of that right must be defendant initiated. Edwards, 451 U.S. at 484-85; Smith, 193 Ariz. 452, ¶ 30.
The rationale of Edwards is that once a suspect indicates that "he is not capable of undergoing [custodial] questioning without advice of counsel," "any subsequent waiver that has come at the authorities" behest, and not at the suspect's own instigation, is itself the product of the "inherently compelling pressures" and not the purely voluntary choice of the suspect.
Shatzer, 559 U.S. at 104-05, quoting Arizona v. Roberson, 486 U.S. 675, 681 (1988) (alteration in Shatzer).
¶13 On appeal, McCullough argues that, because he had "retained counsel to represent him during the homicide investigation," his right to counsel "could not be waived without counsel's presence." He relies on State v. Hackman, 189 Ariz. 505, 507-08 (App. 1997), for the proposition that "once counsel is appointed, counsel must be present for an accused to validly waive his Sixth Amendment rights." Although Hackman is similar to this case in that neither Hackman nor McCullough initiated the second police contact, see Edwards, 451 U.S....
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