State v. Murray
| Decision Date | 26 October 1995 |
| Docket Number | CR-92-0441-AP,Nos. CR-92-0440-A,s. CR-92-0440-A |
| Citation | 184 Ariz. 9,906 P.2d 542 |
| Parties | STATE of Arizona, Appellee, v. Robert Wayne MURRAY, Appellant. STATE of Arizona, Appellee, v. Roger Wayne MURRAY, Appellant. |
| Court | Arizona Supreme Court |
This is a capital case in which we review the convictions and sentences of two brothers, Robert and Roger Murray, who were ages 26 and 20, respectively, at the time of the crimes. Each was convicted of two counts of first degree murder and one count of armed robbery. Appeal to this court is automatic on the capital counts and defendants have appealed their armed robbery convictions separately. Ariz.R.Crim.P. 31.2(b). We have jurisdiction pursuant to Ariz.Rev.Stat.Ann. (A.R.S.) §§ 13-4031 (1989) and 13-4033 (1989 and Supp.1994).
The brothers were tried together and have appealed separately. The facts and many of the legal issues, however, are common to both appeals. Accordingly, we issue a joint opinion resolving both cases on appeal. We first address the issues common to both and then separately address those issues presented by one, but not both, of the defendants. We affirm.
Dean Morrison, age 65, and Jacqueline Appelhans, age 60, lived at and ran a store and restaurant at Grasshopper Junction, a rural area outside Kingman, Arizona. An acquaintance, LaVern Raduenz, stopped by their place at about 8:30 or 9:00 a.m. on May 14, 1991, to have coffee. Raduenz noticed money on the ground and an open door to the restaurant. Through the open door, he saw that the cash register was not in its usual place. Raduenz then walked over to the house, found its door open, and saw the bodies of Morrison and Appelhans. Raduenz left immediately to call the police.
Meanwhile, sometime before 8:00 a.m. and before the discovery of the bodies, police found one of Morrison's tow trucks abandoned on I-40 westbound near Kingman. At approximately 8:00 a.m. police arrested defendants on unrelated charges nearly on the other side of the state on eastbound I-40 near Holbrook. Upon their arrest, defendants had in their possession firearms and other evidence linking them to Grasshopper Junction.
When Morrison's and Appelhans' bodies were found, they were both lying face down in the living room wearing bathrobes. Both had suffered multiple gunshot wounds to the head. There was a revolver on the couch and a .22 semiautomatic rifle leaning against the wall, muzzle down. Various .22 and .38 caliber bullets, casings, and shells were found near the bodies, as well as shotgun pellets. No double ought buckshot or expended shotgun shells were found at the scene.
Drawers in the living room had been pulled open and the contents strewn around; the bedrooms and kitchen were ransacked. One of the two cushion coverings was missing from the couch. There was a .303 rifle on a bed and $172 on a desk chair. Loose change and a single roll of coins were on the kitchen floor. Morrison's wallet, undisturbed in the pocket of his pants on the kitchen floor, contained $800.
The drawer from the store's cash register had been removed. Packs of Marlboro cigarettes were left in paper bags in the store, and the gasoline register was turned on. Police found Morrison's glasses, a flashlight, and a set of keys on the patio of the store. Three live .38 caliber bullets were found near the gas pumps. Morrison's sister found a fired .25 bullet in the pantry two weeks after the crime.
Detective Lent of the Mohave County Sheriff's Department documented the tracks around the scene, noting the tracks of those officers at the scene as well as those of Raduenz. Lent and another experienced tracker, Sergeant Bishop, found four sets of footprints not made by the officers or by Raduenz, two of which were those of the victims. The other two sets of footprints were made by a pair of tennis shoes, later determined to match those worn by Roger, and by a pair of western boots, consistent with those worn by Robert at the time of his arrest. Officers photographed and sketched the footprints. Other than the shoe prints of the officers, the victims, and Raduenz, the defendants' footprints were the only ones to enter or leave the crime scene. One trail showed three sets of prints: the tennis shoes, the boots, and Morrison's slippers. The prints indicated resistance by Morrison.
Rolled and loose coins were found in the courtyard amidst footprints of the victims and defendants. Both defendants' footprints, as well as Morrison's, were found near a backhoe, where there were also tire tracks later determined to be from the tow truck found on westbound I-40.
Defendants eventually headed eastbound on I-40 in their white 1988 Ford Tempo sedan with Alabama plates. For reasons unrelated to the homicide and not disclosed to the jury, an officer attempted to stop defendants. Defendants fled in their car, speeding in excess of 85 miles per hour, leaving the highway, running a manned and armed roadblock, and only stopping offroad where a wash prevented the car from proceeding further. Robert, the driver, threw from the car a .38 revolver that contained four bullets; Roger threw out a loaded .25 semiautomatic pistol. Robert had two spent shotgun shell casings in his hip pocket.
Inside the vehicle, there was a loaded twelve gauge sawed-off shotgun along with live double ought buckshot shells. There was also a checkered cushion cover, matching the cushion on Morrison's couch, which contained rolled coins stamped "Dean's Enterprises, Grasshopper Junction, Kingman, Arizona, 86401," along with a blue pillow case containing approximately $1400 in coin rolls and $3300 in cash. Gloves were found, as well as a receipt from the Holiday House Motel in Kingman, dated May 12, 1991. Motel records showed that the brothers had listed a 1988 Ford on the hotel registration card and had checked out on May 13. A road atlas in the car had circles around the locations of two rural shops or restaurants--Oasis and Grasshopper Junction--that were not otherwise indicated on the map.
Keys recovered from Robert's pocket were later determined to fit a 1991 Chevy Pickup that was on Morrison's property. A scanner and connecting knob found in the car fit the empty bracket of the tow truck found on westbound I-40.
Morrison's autopsy revealed that he had suffered a shotgun blast that entered behind his left ear from a distance of about three feet, shattering his skull. He also suffered
two gunshot wounds from a large caliber pistol, one entering the left lower neck, and the other the right temple area. A .38 bullet was recovered from the back of his neck. Large caliber buckshot was removed from his head. A fired .38 bullet was found next to Morrison. Morrison also had lacerations and abrasions on his face, elbow, forearm, knee, and thigh. These injuries occurred in the same time frame as the gunshot wounds.
Appelhans was shot with at least three different guns. Her head had been shattered by a contact wound from a shotgun; brain and scalp tissue were found on the couch and the surrounding area. Two .38 caliber slugs were removed from her skull. She also suffered .22 caliber wounds that entered at the back of the neck and exited her face. A fragment of one of the .22 bullets was found in her right hand. An aspiration hemorrhage in her lungs suggested a lapse of time between the initial gunshot and death. The .38 caliber bullets were a possible cause of death, the .22 bullets had an uncertain role, and the shotgun blast was clearly lethal. But the autopsy did not reveal the sequence of the shots.
The casings found at the crime scene and in Robert's pocket were fired by the three guns found with defendants. Other bullets, slugs, and casings were inconclusive as to the weapons that fired them; some had characteristics that were consistent with being fired by the weapons.
Human blood and tissue were found on Robert's shirt, on Roger's pants, and on the cushion cover. The blood on Roger's pants could have come from either victim or Robert, but not from Roger. The blood on Robert's shirt could have come from either victim, but not from Robert or Roger. The blood on the cushion could have come from Appelhans, but not Morrison, Robert, or Roger. DNA tests were not conducted.
Defendants were each indicted and found guilty of the first degree murders of Morrison and Appelhans and the armed robbery of Morrison. The first degree murder verdicts were unanimous on both premeditated and felony murder theories.
The trial court found beyond a reasonable doubt three statutory aggravating circumstances as to each defendant: (F)(5) pecuniary gain, (F)(6) especially heinous, cruel or depraved, and (F)(8) multiple homicide. See A.R.S. § 13-703(F) (amended 1993). In the case of each defendant, the trial court found insufficient mitigation to warrant leniency.
Contrary to A.R.S. § 21-301(B) (Supp.1994), the original master jury list was composed only of licensed drivers and did not include registered voters. Several days before the trial was to start and after hearing testimony from the court clerk who serves as jury commissioner, A.R.S. § 21-131(A) (Supp.1994), the trial court ordered that a new jury list be created using both lists. The trial court continued the upcoming trial date one day. The jury commissioner advised the court that she could provide adequate potential jurors from the new list by then, although the forms mailed to the new jurors would place the outer...
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