State v. McGill
| Citation | 213 Ariz. 147,140 P.3d 930 |
| Decision Date | 14 August 2006 |
| Docket Number | No. CR-04-0405-AP.,CR-04-0405-AP. |
| Parties | STATE of Arizona, Appellee, v. Leroy Dean McGILL, Appellant. |
| Court | Arizona Supreme Court |
Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Capital Litigation Section, Jim D. Nielsen, Assistant Attorney General, Phoenix, Attorneys for the State of Arizona.
Susan M. Sherwin, Maricopa County Legal Advocate by Thomas J. Dennis, Deputy Legal Advocate, Phoenix, Attorneys for Leroy Dean McGill.
¶ 1 On November 10, 2004, a jury sentenced Leroy McGill to death for the murder of Charles Perez. Pursuant to Arizona Rule of Criminal Procedure 31.2(b), McGill's appeal to this Court is automatic. This Court has jurisdiction pursuant to Article 6, Section 5.3 of the Arizona Constitution, and section 13-4031 (2001) of the Arizona Revised Statutes.
¶ 2 In July 2002, thirty-nine-year-old Leroy McGill was living in Sophia Barnhart's house. His girlfriend, Jonna "Angel" Hardesty, also lived there, as did Justin Johnson and Barnhart's oldest son, Dean. Jack Yates had a small one-bedroom apartment in a duplex within walking distance of Barnhart's home. Hardesty's brother, Jeff Uhl, sometimes stayed in Yates' apartment. Eddie and Kim Keith, along with their two daughters, also stayed with Yates, as did Charles Perez and his girlfriend, Nova Banta. Yates had his own bedroom, and the others slept in a common room that also served as kitchen and living room.
¶ 3 Perez and Banta had recently accused McGill and Hardesty of stealing a shotgun from the Yates apartment. This accusation exacerbated an already contentious relationship between Banta and Hardesty.
¶ 4 On July 12, 2002, McGill, Hardesty, Barnhart, and Johnson spent the evening at Barnhart's house smoking marijuana purchased from Perez. At approximately 3:30 a.m. on July 13, McGill went to Yates' apartment. Uhl and Eddie Keith came out of the apartment to talk with McGill. McGill told Keith to get his wife and children out of the apartment because he "was going to teach [Perez] and [Yates] a lesson, that nobody gets away with talking about [McGill and Hardesty]." In response to Keith's pleading, McGill agreed to spare Yates, but said it was too late for Perez. McGill also told Keith that he "was the only one who knew about it and that if anybody said anything about it, that [McGill] would know who said it," then remarked that Keith "had pretty little girls." Keith and his family fled the apartment.
¶ 5 Uhl admitted McGill into the apartment shortly thereafter. Perez and Banta were sitting next to each other on a couch that was next to the front door. Yates was also inside and either lying down on another couch or in his bedroom. Banta testified that McGill "turned around and looked at me and [Perez] and said [Perez] shouldn't talk behind other people's backs, and he poured the gasoline on us and quickly lit a match and threw it at us." McGill had added pieces of a styrofoam cup to the gasoline to create a napalm-like substance that would stick to his victims and cause them more pain. Perez and Banta, both engulfed in flames, ran out of the apartment.
¶ 6 Yates and Uhl also escaped the apartment, which had caught on fire. Yates put out the flames on Banta using a blanket. Mary Near, the occupant of the other apartment in the duplex, awoke to the smell of smoke, quickly dressed, and ran from her apartment, which was also on fire. When firefighters arrived, the apartment was fully engulfed in flames.
¶ 7 At the hospital, Perez, screaming in pain, pleaded, Burns covered eighty percent of Perez's body and caused his death on July 14, 2002. Banta was also conscious and in extreme pain; third degree burns covered approximately three-quarters of her body. At the hospital, Banta identified McGill as the person who set her on fire.
¶ 8 Meanwhile, at Barnhart's house, Hardesty told Johnson that McGill had just called and asked "if it smelled like burning flesh." Referring to Johnson, McGill asked Hardesty or Barnhart, "Is he going to talk?" Johnson testified that someone, either McGill, Hardesty, or Barnhart, threatened him with harm if he reported anything about the murder.
¶ 9 A grand jury indicted McGill for the first degree premeditated murder of Charles Perez, the attempted first degree murder of Nova Banta, two counts of arson, and the endangerment of Jack Yates, Jeffrey Uhl, and Mary Near.
¶ 10 As a prosecution witness, Nova Banta identified Leroy McGill as the man who attacked her. She also showed the jury the injuries she sustained from the fire. Dr. Phillip Keen testified to the nature and extent of Perez's injuries. During his testimony, he discussed photographs of Perez's corpse, once before the jury saw the photographs, and then again as the State displayed them. The defense put on only one witness, Sophia Barnhart, who claimed that McGill was not involved with the fire. After deliberating less than an hour, the jury returned a guilty verdict on all counts.
¶ 11 At the close of the aggravation phase of the trial, the jury unanimously found that McGill had been convicted of prior serious offenses, Ariz.Rev.Stat. (A.R.S.) § 13-703.F.2 (2001); that he knowingly created a grave risk of death to persons other than the victim, A.R.S. § 13-703.F.3; and that he committed the offense in both an "especially cruel" and an "especially heinous or depraved" manner, A.R.S. § 13-703.F.6.
¶ 12 In the penalty phase, McGill put on evidence that he had an abusive childhood; that he was psychologically immature and, as a result, his girlfriend had greater than normal influence over him; that he suffered from some degree of mental impairment; that he performed well in institutional settings; and that his family cares about him. The State put on rebuttal evidence, including evidence that while awaiting trial McGill attempted to have a potential witness against him killed. The prosecution also read into the record a letter from Perez's sister, which expressed the sorrow Perez's family experienced as a result of his death. The jury found that McGill's mitigation evidence was not sufficiently substantial to call for leniency and, therefore, determined that death was the appropriate sentence. See A.R.S. § 13-703.01.H (Supp.2005).
¶ 13 McGill raises issues concerning each phase of his trial. We first address his assertion that the trial court abused its discretion in dismissing one of the jurors for cause. Next, we consider issues related to the assertion that McGill endangered Uhl, Yates, and Near by starting a fire in their building. We also address issues related to the State's allegation that McGill murdered Perez in an especially heinous, cruel, or depraved manner, see A.R.S. § 13-703.F.6. Finally, we consider issues arising from the penalty phase and independently determine whether the mitigation is sufficiently substantial to merit leniency. A.R.S. §§ 13-703.E, -703.04 (Supp.2005).
¶ 14 McGill contends that the trial court abused its discretion in dismissing Juror 58 for cause. "[T]he State may exclude from capital sentencing juries that `class' of veniremen whose views would prevent or substantially impair the performance of their duties in accordance with their instructions or their oaths." Wainwright v. Witt, 469 U.S. 412, 424 n. 5, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). This Court reviews a decision to excuse a juror for cause for abuse of discretion. State v. Medina, 193 Ariz. 504, 511 ¶ 18, 975 P.2d 94, 101 (1999).
¶ 15 Juror 58 stated that, if called upon to impose the death penalty, she would have to choose between being sanctioned by the government or punished by God. She said that she could follow the law, but only because When asked explicitly, "Do you think that your ability to do the things that you're supposed to do as a juror—do you think that ability would be impaired," Juror 58 said, "Yes." The trial court did not abuse its discretion in determining that Juror 58's beliefs would "substantially impair the performance of [her] duties," Wainwright, 469 U.S. at 424 n. 5, 105 S.Ct. 844.
¶ 16 We consider three issues related to the State's allegation that McGill placed Uhl, Yates, and Near in danger by starting a fire in their building. McGill asserts that the trial court erred in denying his motion to dismiss the three counts of endangerment. He also argues that convicting him of endangerment under A.R.S. § 13-1201.A (2001) and then using the same conduct to establish his eligibility for the death penalty under A.R.S. § 13-703.F.3 violates the Double Jeopardy Clause of the Fifth Amendment, U.S. Const. amend. V. We also independently determine whether, in killing Perez, McGill "knowingly created a grave risk of death to another person or persons in addition to the person murdered during the commission of the offense," A.R.S. § 13-703.F.3.
¶ 17 McGill argues that the State presented insufficient evidence to support the three endangerment convictions. "A person commits endangerment by recklessly endangering another person with a substantial risk of imminent death or physical injury." A.R.S. § 13-1201.A. The statute requires the State to show that McGill was "aware of and consciously disregard[ed] a substantial and unjustifiable risk that" his actions would place another person in substantial risk. A.R.S. § 13-105.9(c) (2002) (defining recklessly). When reviewing for sufficiency of the evidence, we determine whether, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have convicted the defendant of the crime in question. State v. Montaño, 204 Ariz. 413, 423 ¶ 43, 65 P.3d 61, 71 (2003).
¶ 18 The facts presented permitted the jury to convict...
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