State v. Moorman

• Decision Date: 06 October 1987
• Docket Number: No. 6558,6558
• Citation: 154 Ariz. 578,744 P.2d 679
• Parties: The STATE of Arizona, Appellee, v. Robert Henry MOORMAN, Appellant.
• Court: Arizona Supreme Court

Page 679

744 P.2d 679

154 Ariz. 578

The STATE of Arizona, Appellee, v. Robert Henry MOORMAN, Appellant.

No. 6558.

Supreme Court of Arizona.

Oct. 6, 1987.

Robert K. Corbin, Atty. Gen. by William J. Schafer III, Georgia B. Ellexson, Asst. Attys. Gen., Phoenix, for appellee.

Robert Cimino, Apache Junction, for appellant.

FELDMAN, Vice Chief Justice.

Defendant, Robert Henry Moorman, challenges both his conviction and his sentence for first degree murder. We have review of this automatic appeal pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. §§ 13-4031 and -4033.

FACTS

On January 12, 1984, Moorman, an inmate of the Arizona State Prison at Florence, ¹ was released to his 74-year-old adoptive mother, Roberta Claude Moorman, for a three-day compassionate furlough. The two were staying in room 22 of the Blue Mist Motel, close to the prison. The following evening, George Johnson, owner of a pizza restaurant near the motel, told two police officers, Donald Thuesen and Keith Hyland, that Moorman had asked if he could dispose of some "cow guts" in the restaurant's dumpster. Johnson, who had worked at the prison and knew Moorman, was suspicious of Moorman's "guilty look." Johnson also mentioned to the officers that Moorman had said his mother was ill.

Officers Thuesen and Hyland confirmed Moorman's furlough status with prison personnel. They learned that Moorman was staying with his mother at the Blue Mist Motel. After checking several dumpsters and discovering nothing out of the ordinary, at about 11:00 p.m. the officers decided to look in on Moorman and his mother at the motel. Moorman told them that his mother felt better and had left earlier that evening with a friend, whom Thuesen and Hyland informed their superior, Captain Terry Horrall, that Mrs. Moorman was missing. They unsuccessfully searched for her. At about 1:00 a.m. on the 14th, Thuesen and Hyland returned to the motel and parked. Moorman came out of the room and told the officers that his mother had not returned and that he was worried about her because she had not taken her blood pressure medicine. Captain Horrall and another officer arrived and Moorman brought them into his room to show them his mother's medicine. The officers noticed small, brownish-red spots on the floor and wall; the floor appeared wet. During the conversation, Moorman told Horrall a different story from the one he had told Thuesen and Hyland earlier. He now said that his mother had asked him to purchase a knife as a gift for someone, and when he returned, she was gone. Horrall questioned Moorman about the "cow guts" and Moorman said that a cousin had given them to him and that he had flushed them down the toilet.

[154 Ariz. 581] Moorman did not know. He told the officers that he did not know where his mother was, and that he was growing concerned. Moorman invited the officers into the motel room, which had a medicinal smell. Thuesen and Hyland also spoke with the motel owner, who thought he had seen Mrs. Moorman around 6:00 p.m. Because this latter information was consistent with Moorman's statements, the officers did not then think anything was out of line with Moorman's story.

The police left Moorman's room around 1:20 a.m. Horrall told Thuesen and Hyland to keep the room under surveillance. About fifteen minutes later, Moorman left the room to use a pay telephone. At that time, according to police logs and testimony, Horrall instructed Thuesen and Hyland not to let Moorman back into the room. The police logs say that the instruction was to "secure" Moorman. There was some confusion at trial whether Horrall's command came seven minutes before or immediately after the police learned that a prison employee, at Moorman's request, had picked up a box of "dog bones" from Moorman shortly after midnight.

After receiving the instruction to secure Moorman, Thuesen asked Moorman if he wanted to sit in the police car with the officers and wait for his mother. Moorman got into the car. Shortly after 2:30 a.m., two prison authorities arrived and, out of Moorman's hearing, told Thuesen and Hyland that the box retrieved from the prison contained human body parts. Thuesen then told Moorman that he was under arrest for suspicion of murder.

At trial, Moorman admitted that he had killed his mother, but claimed that he was not guilty by reason of insanity. See A.R.S. § 13-502. A jury rejected Moorman's insanity defense and convicted him of first degree murder. A.R.S. § 13-1105. The trial court sentenced him to death. A.R.S. § 13-703. Moorman contends that his conviction should be overturned and that he should receive a new trial for seven reasons:

1. Post-arrest incriminating statements and a confession should have been suppressed because the police lacked probable cause to arrest.

2. Evidence seized from his motel room should have been suppressed because the search warrant did not list the items to be seized.

3. Evidence seized without a search warrant from Moorman's former living quarters at the prison should have been suppressed.

4. Statements and physical evidence taken at the police station should have been suppressed because Moorman was denied his right to counsel and because the statements were involuntary, unknowing, and unintelligent.

5. Irrelevant and unduly prejudicial photographs should not have been admitted.

6. A.R.S. § 13-502(B) (Supp.1986) is unconstitutional because it:

a. requires a defendant to prove insanity by "clear and convincing" evidence;

b. places the burden of proving insanity upon a defendant; and c. usurps the rule-making powers granted exclusively to the Arizona Supreme Court.

7. The trial judge erred in complying with defendant's request that the jury not be instructed on lesser-included offenses.

In addition, Moorman claims that the trial court improperly sentenced him to death because it impermissibly found several aggravating factors and should have found other mitigating factors. We address each of these issues in turn.

I. PROBABLE CAUSE TO ARREST

Moorman contends that he was arrested without probable cause at 1:35 a.m. on Saturday, January 14, when Officers Thuesen and Hyland asked him to sit with them in the police car. Moorman argues that the fruits of his illegal arrest--statements and other evidence used against him--should have been suppressed. See Taylor v. Alabama, 457 U.S. 687, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). The trial court admitted the evidence on the ground that, regardless whether Moorman was under arrest at 1:35 a.m., the police had probable cause to arrest him at that time. On appeal, the state contends that we need not reach the probable cause issue because there was no arrest until 2:37 a.m., when Thuesen and Hyland learned that the bones at the prison were human and formally placed Moorman under arrest.

Like the trial court, we find it unnecessary to decide whether Moorman was formally arrested at 1:35 a.m., because we believe the police had probable cause to make an arrest at that time. The police have probable cause to arrest when reasonably trustworthy information and circumstances would lead a person of reasonable caution to believe an offense has been committed by the suspect. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879 (1949); State v. Nelson, 129 Ariz. 582, 586, 633 P.2d 391, 395 (1981). Moorman contends that this test was not met. See State v. Edwards, 111 Ariz. 357, 529 P.2d 1174 (1974).

We agree with the trial court that the police had probable cause to arrest Moorman when Horrall instructed Thuesen and Hyland to secure him. At that time, the police knew the following information: Moorman was a convicted felon on weekend furlough. At 1:30 a.m., Moorman's 74-year-old mother could not be found in Florence, a relatively small town. Moorman had asked Johnson if he could dispose of some "cow guts" in the restaurant's dumpster. Moorman told Johnson that his mother was ill. Johnson, who knew Moorman, believed something was wrong. When the officers first checked with Moorman, his explanations were inconsistent with the story he had told Johnson. The police noticed small reddish-brown spots and the floor appeared wet in Moorman's hotel room. The police knew Moorman had purchased a knife. The room smelled medicinal. Moorman later told the police two different stories about his mother's absence. Neither story was persuasive. Moorman told Horrall an incredible and chilling story about flushing cow guts given to him by a relative down the toilet.

We think these pieces together add up to more than mere suspicion. The police did not need to find the remnants of the body before having probable cause to arrest. Brinegar, 338 U.S. at 175-76, 69 S.Ct. at 1310-11. Under these facts, the trial court was correct in finding that the police had probable cause to arrest.

II. SEARCH WARRANT

Officer Horrall did not correctly complete the portion of the search warrant on which the items to be seized should have been listed. Consequently, the warrant itself contained no description of the items to be seized. Moorman contends, therefore, that the warrant was a general or exploratory warrant, condemned under the federal and state constitutions and state law. E.g., Berger v. New York, 388 U.S. 41, 58, 87 S.Ct. 1873, 1883, 18 L.Ed.2d 1040 (1967); Stanford v. Texas, 379 U.S. 476, 85 S.Ct.

[154 Ariz. 583] 506, 13 L.Ed.2d 431 (1965); A.R.S. § 13-3913 (search warrant must particularly describe the property to be seized and the place to be searched).

A defective description in the warrant may be saved by an adequate description in the affidavit. 1 W. LaFAVE & J. ISRAEL, CRIMINAL PROCEDURE § 3.4, at 229 (1984). In this case, the affidavit listed the items to be seized as "pillow case used to suffocate victim, knives, receipts, blood stains,...