State v. McDaniel, 4220-2

CourtSupreme Court of Arizona
Writing for the CourtGORDON; HOLOHAN
Citation665 P.2d 70,136 Ariz. 188
PartiesSTATE of Arizona, Appellee, v. Lewis Stevenson McDANIEL, Appellant.
Docket NumberNo. 4220-2,4220-2
Decision Date28 April 1983

Robert K. Corbin, Atty. Gen., Phoenix, John R. Callahan, Tempe, for appellee.

Stephen M.R. Rempe, Phoenix, for appellant.

Lewis Stevenson McDaniel, in pro per.

GORDON, Vice Chief Justice:

A jury found appellant guilty of first degree murder, robbery, and kidnapping. Following an aggravation-mitigation hearing, the defendant was sentenced to death for the first degree murder conviction, 9-10 years imprisonment for the kidnapping conviction and 20 years to life for the robbery conviction to run concurrently with the sentence for kidnapping. Appellant now challenges the first degree murder conviction on the basis of several allegations of error. We have jurisdiction pursuant to Ariz.Const. Art. 6, § 5(3) and A.R.S. §§ 13-4031 and 13-4033. We affirm the judgment of guilt and conviction on all charges but modify the sentence imposed for the first degree murder conviction.

This case has been the subject of four trials--the first ending in the granting of a motion for a new trial, the second ending when the defendant's conviction was later reversed by this Court, see State v. McDaniel, 127 Ariz. 13, 617 P.2d 1129 (1980), the third ending in a mistrial, and the fourth being reviewed presently. The facts are essentially as follows:

The victim, Arthur Kaehler, worked at Sky Harbor Airport in Phoenix loading baggage for American Airlines. After getting off work early in the morning of August 4, 1975, Kaehler drove to East Van Buren Street where he picked up a prostitute named Alice Watkins. Although she refused to have sex with Kaehler, Watkins agreed to take him to her apartment in South Phoenix. Seven people lived in the When Kaehler and Watkins arrived at the apartment, Alice agreed to go inside and ask Theresa if she wanted to have sex with Kaehler. Kaehler followed her inside, and after drinking and dancing with Alice, Theresa and Cathy, Kaehler went into a bedroom with Theresa.

apartment from time to time: Alice Watkins; Lewis McDaniel, her boyfriend; Theresa Hill, another prostitute; Mark Rich, Theresa's boyfriend; Cathy Gaines, Watkins' sister; and Watkins' two young children.

While Theresa and Kaehler were in the bedroom, the defendant and Mark Rich returned to the apartment. They went outside the apartment, and after observing Kaehler and Hill through the bedroom window, returned to the apartment. Rich then entered the bedroom, demanding to know what Kaehler was doing with his wife (Theresa was not in fact his wife). The defendant also entered the room and both men held Kaehler at gunpoint while at the same time hitting and kicking him. Although the evidence is not clear as to who did what, there is no question that Kaehler was tied up and liquor was poured down his throat. His wallet, watch, and ring were taken from him. Kaehler, gagged, hog-tied and wrapped in a blanket, was then locked in the trunk of his own car. Mark, Alice and Theresa drove the victim's car to an apartment complex near 40th Street in South Phoenix, parked, and left the vehicle with the windows open, keys in the ignition, and Kaehler still locked in the trunk. There was evidence introduced at trial that Kaehler was alive and making noise inside the trunk during the drive. The defendant followed in his own car, picked up the other three, and they all returned to the apartment. Kaehler, who was found two days later, died of heat exhaustion or suffocation in the extreme heat of the trunk.

All five of the adults living in the apartment were arrested. Alice and Theresa pled guilty to manslaughter and were incarcerated in the Arizona State Prison and have since served their sentence. Mark, still a juvenile, was processed through the juvenile corrections system. Cathy was granted immunity in exchange for her testimony.

Appellant raises several issues on appeal: (1) whether the trial court erred by not asking the voir dire question requested by the defense regarding the death penalty; (2) whether the trial court improperly prohibited the defense from calling Watkins and Rich to testify; (3) whether the trial court erred by not compelling the state to disclose the notes of Ken Chambers; (4) whether the trial court improperly allowed the preliminary hearing testimony of Theresa Hill to be read into the trial record; (5) whether a gun was improperly admitted into evidence; (6) whether the trial court improperly treated Denise Androvandi's trial testimony regarding McDaniel's statements as non-hearsay; (7) whether the prosecutor's closing statement was improper; (8) whether the trial court improperly replied to notes submitted by the jury during deliberations; (9) whether McDaniel had ineffective assistance of counsel; and (10) whether the death penalty was improperly imposed.


The defendant alleges that the trial court erred in not asking the following question on voir dire:

"A person convicted of first degree murder in the State of Arizona may be punished by life imprisonment, to wit: a minimum of 25 calendar years, or by death in the gas chambers [sic]. If Mr. McDaniel is found guilty of first degree murder, the Court that is, the Judge, without any verdict or advice from the jury then must determine the punishment. Do you entertain any conscious or religious opinion concerning the death penalty which would prevent you from finding the defendant guilty even though you are satisfied beyond a reasonable doubt from the evidence that he is in fact guilty of first degree murder?"

The purpose of jury voir dire examination is to unveil a juror's prejudice so that the parties can exercise intelligently In support of his position the defendant relies on Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). In that case the United States Supreme Court held that where all jurors opposed to the death penalty are systematically excluded, the jury's sentence of death is unconstitutional as it denies the defendant the right to an impartial jury. There is no requirement in Witherspoon, however, that the trial judge ask jurors on voir dire what their feelings towards the death penalty are or if those feelings would effect their determination of guilt or innocence. Even if the trial court in this case were required to make such an inquiry, we do not see how the failure to do so could have adversely affected the defendant. If the question had been answered affirmatively the state would have been permitted to strike the juror for cause. See Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980); Witherspoon v. Illinois, supra. Had the question been answered in the negative, neither the state nor the defense would have been permitted to strike the juror for cause and in exercising its peremptory challenges the defense would have been in no better position than if the question had never been asked. We therefore find that the trial judge's decision not to ask the defendant's question did not affect McDaniel's right to a fair and impartial jury.

their peremptory challenges and challenges for cause. State v. Melendez, 121 Ariz. 1, 588 P.2d 294 (1978); State v. Verive, 128 Ariz. 570, 627 P.2d 721 (App.1981). Rule 18.5(d) Ariz.R.Crim.P. requires the trial court to conduct voir dire examination by putting to the jurors all appropriate questions requested by counsel. We have consistently held that the scope of voir dire is left to the sound discretion of the trial court and as long as there is no abuse of discretion error will not be found on appeal. State v. Baumann, 125 Ariz. 404, 610 P.2d 38 (1980); State v. Rose, 121 Ariz. 131, 589 P.2d 5 (1978).


McDaniel claims that the trial court erred in refusing to allow him to call Alice Watkins and Mark Rich to testify even though it was known that they would invoke their Fifth Amendment privilege. McDaniel's purpose in calling Watkins and Rich to testify was to show that they actually perpetrated the crime and that they lied at the prior trial to implicate McDaniel. During the trial the judge held an in camera hearing during which it was established that Rich and Watkins would invoke the Fifth Amendment in response to all questions asked by both the prosecution and the defense. Both individuals stated that the privilege would be invoked based on their fear of resulting perjury charges. The trial judge ruled that because the witnesses would not answer any questions regarding prior testimony, there would be no substantive value in allowing the defendant to call them to testify.

McDaniel's counsel directs the Court's attention to a line of Arizona cases dealing with both the defendant's and prosecution's right to call witnesses who have already made clear that they intend to invoke the Fifth Amendment. See State v. Gretzler, 126 Ariz. 60, 612 P.2d 1023 (1980); State v. Ortiz, 113 Ariz. 60, 546 P.2d 796 (1976); State v. Cota, 102 Ariz. 416, 432 P.2d 428, cert. denied, 390 U.S. 1008, 88 S.Ct. 1256, 20 L.Ed.2d 109 (1967). In Cota, supra, the prosecution called the co-defendant to testify who, after answering several preliminary questions, invoked the Fifth Amendment when asked about the murder for which the defendant was being tried. On appeal the defense counsel argued that it was error to allow the state to call the co-defendant since it was the prosecutor's strategy to tie the co-defendant and the defendant together and therefore when the co-defendant refused to testify the defendant would appear guilty to the jury. We stated that the co-defendant's testimony was material to the state's case and that the privilege against self-incrimination was a personal immunity for the witnesses which did not disqualify him from being called. We ruled that the state had a right to show that it was presenting all of the relevant evidence "In State v. Ortiz, the...

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