State v. Nordstrom, No. CR-98-0278-AP.

• Court: Supreme Court of Arizona
• Writing for the Court: McGREGOR, Justice.
• Citation: 200 Ariz. 229,25 P.3d 717
• Parties: STATE of Arizona, Appellee, v. Scott Douglas NORDSTROM, Appellant.
• Decision Date: 21 June 2001
• Docket Number: No. CR-98-0278-AP.

25 P.3d 717
200 Ariz. 229

STATE of Arizona, Appellee,
v.
Scott Douglas NORDSTROM, Appellant

No. CR-98-0278-AP.

Supreme Court of Arizona, En Banc.

June 21, 2001.

25 P.3d 724

Janet Napolitano, The Attorney General, by Kent E. Cattani, Chief Counsel, Capital Litigation Section, Phoenix, and Bruce M. Ferg, Assistant Attorney General, Tucson, Attorneys for the State of Arizona

Law Office of David Alan Darby, by David Alan Darby, Tucson, Attorneys for Nordstrom.

OPINION

McGREGOR, Justice.

I. FACTS AND PROCEDURAL HISTORY

A. Moon Smoke Shop

¶ 1 On May 30, 1996, shortly after six p.m., four employees were working at the Moon Smoke Shop in Tucson, Arizona. Noel Engles and Steven Vetter stood behind a counter, facing away from the front door, training a new employee, Mark Naiman. The fourth employee, Thomas Hardman, sat in a chair near the back of the store's main room. The employees heard a buzzer indicating the front door had been opened, followed immediately by a gunshot and someone shouting at them to get down. Before dropping to the ground, Engles saw a man with a cowboy hat, glasses, and a mustache, carrying a gun. Engles also noticed another person moving around. As Engles, Vetter, and Naiman crouched behind the counter, they heard and saw someone run toward the back room of the store. The other person approached the counter where Engles, Vetter, and Naiman were crouched, demanding that they open the register and waving his gun, a semi-automatic pistol, over their heads. Naiman opened a nearby register. Their assailant responded by demanding that he open the other register. As Naiman moved toward that register, he heard the robber begin firing shots toward Engles and Vetter, who were still crouched on the floor. Two bullets

25 P.3d 725

struck Vetter, one in the face and one in the arm. While these shots were being fired, Engles heard more gunshots and someone in the back room shouting to "get out." When the assailant in the front room began shooting, Naiman glanced back over his shoulder and then fled without opening the second register. Naiman described the shooter as about 5'10", with brownish-blond, shoulder-length hair and a handlebar mustache, wearing a black cowboy hat, sunglasses, jeans, and a dark blue or black striped cowboy shirt. Naiman ran out the front door toward the grocery store and called the police

¶ 2 After the shooting ceased, Engles left the store through the back door. On his way out, he saw a man he did not recognize lying at the front of the store and Hardman on the floor in the store's back room. Engles ran out the back door and along the rear of the strip mall, yelling for help. As he was running, he saw a light blue pickup truck driving along the back of the strip mall. Although he told police on the scene that he saw two people in the truck, at trial he testified that he was not sure about the number of people in the truck. He also stated that the two people he was sure he saw were seated far apart, one in the driver's position and the other up against the passenger window, and that none of the people in the truck wore a cowboy hat.

¶ 3 Vetter left shortly after Engles did, using the back door. On his way out of the store, he saw the body of a person he did not know on the floor at the front of the store, and Hardman's body lying face down in the back room. The man that neither Engles nor Vetter recognized was Clarence O'Dell, who died of a 9 mm gunshot wound to the head. The shot that killed O'Dell was fired from less than two feet away, and would have incapacitated him immediately.

¶ 4 Thomas Hardman was dead when Engels and Vetter found him in the back room. Two shots from a .380 hit him, one shot fired from several inches away, the other from two to four feet away. One shot would have been immediately disabling and lethal, the other would not necessarily have been fatal or caused unconsciousness. Hardman was found lying face down, but the medical examiner could not determine whether he was shot before or after falling.

B. Firefighters' Union Hall

¶ 5 The Firefighters' Union Hall in Tucson is a firefighters' social club that allows nonfirefighters to join as associate members. The front door to the Hall remains locked, and members gain admittance by inserting a key card into a slot. Members who forget their key cards and non-members can request admittance by ringing a buzzer. The bartender can open the door using a switch at the bar, although patrons often respond themselves by opening the door.

¶ 6 At about nine p.m. on the evening of June 13, 1996, four people were in the bar area at the Firefighters' Hall: the bartender, Carol Lynn Noel, and three customers, Arthur Bell, his wife Judy Bell, and Maribeth Munn. When Munn's partner arrived at the Hall at about nine-thirty p.m., he found all four dead from gunshot wounds. Munn, who still sat on her stool at the bar, had been killed by a 9 mm gunshot fired from a distance of six inches to two-and-a-half feet. Mr. Bell was also still seated at the bar, dead as a result of a 9 mm gunshot to the head. Mr. Bell had a bruise and cut on his face that were inflicted within twenty-four hours of his death. Mrs. Bell was lying on the floor next to a barstool, dead from a 9 mm gunshot to the head. The investigating officers found shell casings on the bar, as well as nicks in the bar, consistent with the gunshots having been fired while Munn and the Bells had their heads resting on the bar. The medical examiner also testified that the gunshot wounds of Munn and Mr. Bell were consistent with this scenario, particularly those of Munn, who was killed by a bullet that also passed through her upper arm.

¶ 7 Noel was found dead behind the bar, lying face down. She had been shot twice with a .380, once in the head and once in the back. Both shots were fired from a distance of approximately three feet. She died as a result of the head wound. The shot to her back would neither have killed her nor caused her to lose consciousness. Noel also had a large laceration on her face, the result of blunt force impact such as that from a fist

25 P.3d 726

or a shoe. The wound would have bled significantly, and some of Noel's blood was found in the back room of the bar, on and around the safe, which she could not open

C. Evidence at Trial

¶ 8 Scott Nordstrom was tried in superior court on twelve counts: six counts of first-degree murder as to Clarence O'Dell, Thomas Hardman, Maribeth Munn, Carol Lynn Noel, Arthur Bell, and Judy Bell; one count of attempted first-degree murder as to Steven Vetter; three counts of armed robbery as to Steven Vetter, Mark Naiman, and Noel Engles; and two counts of burglary in the first degree of the Moon Smoke Shop and the Firefighters' Hall. His trial lasted twenty-three days between October 22 and December 2, 1997, and involved the testimony of sixty-eight witnesses. Robert Jones was tried separately as the other participant in these crimes.¹

¶ 9 The State relied primarily on the testimony of three witnesses: Carla Whitlock, an eyewitness from the Moon Smoke Shop, who identified the defendant as the last of three men she saw run out of the shop on the night of the robbery; David Nordstrom, the defendant's brother, who claimed to have been the driver at the Moon Smoke Shop and to have heard from the defendant about what happened at the Firefighters' Hall; and Michael Kapp, who claimed that the defendant had solicited him to rob the Firefighters' Hall two years earlier.

¶ 10 The defense presented primarily two types of evidence: evidence suggesting that David Nordstrom had perpetrated the crimes and implicated his brother to protect himself, and alibi evidence for May 30, the day of the Moon Smoke Shop robbery. At the time of these crimes, David was participating in a home arrest program that had allowed his early release from prison. Although the State originally charged David with crimes related to both locations, it dropped all charges related to the Firefighters' Hall crimes when electronic monitoring records showed that David had not violated his curfew on June 13.² In an attempt to demonstrate that David could have perpetrated the Firefighters' Hall murders, the defense presented testimony from David's parole officer that revealed problems with parole record-keeping and from witnesses who claimed either that they had seen David out after curfew or had heard him say that he could get curfew extensions whenever he wanted. The defense also presented testimony about David's substance abuse and reputation for dishonesty. The State countered this evidence, in part, with testimony by the parole department supervisor and results from a field test demonstrating that the electronic monitoring system could not be mechanically defeated.

¶ 11 The defendant presented alibi evidence in an attempt to prove that, during the afternoon and evening of May 30, he called friends in Pennsylvania to arrange for the return of some personal items, went to the store with his girlfriend and her son, went to look at a dog that his girlfriend was considering adopting, went to the park for a barbecue, and then called Pennsylvania again. The defendant's girlfriend, her son, and the two owners of the dog testified about the meeting. The defense used their testimony, that of other relatives and friends, and work and telephone records in its attempt to narrow the possible dates for the dog viewing to May 30. The State attempted to impeach these witnesses, several of whom had met to determine the date of the dog viewing, suggesting that while the defendant had indeed gone with his girlfriend and her son to look at a dog, he had not done so on May 30. The defense presented no alibi evidence for June 13.

¶ 12 The jury unanimously convicted the defendant of felony murder on all six counts. The jury also unanimously convicted him of

25 P.3d 727

premeditated murder with respect to Thomas Hardman and Carol Lynn Noel, and two members of...