State v. Ortiz, 4818

• Decision Date: 23 November 1981
• Docket Number: No. 4818,4818
• Citation: 131 Ariz. 195,639 P.2d 1020
• Parties: STATE of Arizona, Appellee, v. Ignacio Alberto ORTIZ, Appellant.
• Court: Arizona Supreme Court

Page 1020

639 P.2d 1020

131 Ariz. 195

STATE of Arizona, Appellee, v. Ignacio Alberto ORTIZ, Appellant.

No. 4818.

Supreme Court of Arizona, In Banc.

Nov. 23, 1981.

Rehearing Denied Jan. 12, 1982.

Robert K. Corbin, Atty. Gen., William J. Schafer, III, Chief Counsel, Crim. Div., Jack Roberts, Asst. Atty. Gen., Phoenix, for appellee.

Richard S. Oseran, Pima County Public Defender, Donald S. Klein, Asst. Public Defender, Tucson, for appellant.

GORDON, Justice:

On July 2, 1979, a jury found appellant guilty of one count of first degree murder, three counts of attempted first degree murder, ¹ two counts of aggravated assault, one count of arson of an occupied structure, one count of first degree burglary, and one count of conspiracy to commit first degree murder. Following an aggravation-mitigation hearing on October 4 and 5, 1979, appellant was sentenced on October 15, 1979. The trial judge imposed the death penalty for the first degree murder conviction, life imprisonment for the conspiracy conviction, and the maximum sentence on each of the other charges, to run concurrently with each other and consecutively to the conspiracy sentence. Appellant now challenges the convictions on all counts and the sentence of death. We have jurisdiction pursuant to A.R.S.Const. Art. 6, § 5(3) and A.R.S. § 13-4031, and we affirm.

Appellant and his wife were the godparents of Manuelita and Charles McCormack, Jr.'s youngest child, Charles McCormack III. The McCormacks also had two daughters, Patricia and Bernice. At the time of the charged crimes, Patricia was nine years old, Bernice was eight, and "Baby Charlie" was three.

Charles and Manuelita McCormack were having marital difficulties in 1977-78. They had separated and Manuelita had considered filing for a divorce. During these difficulties, appellant saw Manuelita often and helped her and the children. There is some suggestion in the record that the relationship between appellant and Manuelita turned into a love affair. Manuelita and Charles reconciled, however, and Charles moved back into the house.

Appellant continued to visit Manuelita after the reconciliation but would do so only when Charles was not home. Appellant drove a white pick-up truck with a camper shell which a neighbor saw on several occasions parked in the alley behind the McCormack residence. Apparently, Manuelita tried to discourage his visits and eventually told him not to visit or telephone her anymore.

These events built to a climax on the evening of December 21, 1978. According to the testimony of Bernice and Patricia McCormack, the children went to bed that night in Patricia's bedroom around 9:00 p. m. Charles McCormack, Jr. testified that he left for work at about 10:00 p. m. A neighbor said she saw appellant's truck in the alley at 11:00 p. m.

During the night, Baby Charlie woke up and asked Bernice for a glass of water. Bernice testified that when she went to get a glass of water from the kitchen, she saw "Nacho," the nickname by which she knew appellant, and her mother on the living room floor. Her mother appeared to be sleeping, and appellant had his hands around her mother's neck. Bernice returned to the bedroom and awoke Patricia.

Shortly thereafter, appellant entered the bedroom and told the children that he was going to call an ambulance for their mother. Appellant left the room, and the children played with some clay. An ambulance never arrived, but appellant returned and told Patricia that her mother wanted to see her. Patricia went to the living room, whereupon appellant grabbed her from behind and stabbed her in the chest with a knife. Patricia, screaming, ran into her mother's bedroom and collapsed on the bed.

When Bernice heard the screams, she ran to her mother's bedroom to investigate. Appellant also grabbed her from behind and used the knife to stab her in the chest. Bernice ran back to Patricia's bedroom where Baby Charlie was still playing. Patricia testified that sometime during these events she thought she heard her mother plead, "Please don't hurt Baby Charlie."

Appellant had brought a can of gasoline with him to the McCormack residence. He poured gasoline on Manuelita and over the exit from the bedrooms. He also placed a delayed ignition device on a pile of clothes at the foot of Baby Charlie's bed. On his way out of the house, he told the children not to leave until the fire department arrived. Then he ignited the gasoline and departed.

Within a short time, Bernice smelled smoke. She rose from the bed where she lay, gathered Baby Charlie and Patricia, and helped them out of the house. Bernice and Baby Charlie struggled to a neighbor's house; Patricia collapsed on the sidewalk and when the paramedics found her, she was near death.

The fire engulfed the living room before the fire fighters arrived and put it out. Manuelita's body had been badly charred. The pathologist found stab wounds in her neck and, judging from the pool of blood discovered under her body, deduced that she had been stabbed in the chest. Her chest was too burned to find any stab wounds, however. Although he found the cause of death to be stabbing, the pathologist testified that Manuelita may have been alive when the fire started.

The next day, appellant was arrested and jailed. While awaiting trial on the charges relating to the events of December 21, he moved in with another prisoner named Jose Alvarez. Alvarez was in jail pending a trial on numerous robbery charges and had a history of drug abuse. He had also tried to escape from the jail and severely injured a knee in the attempt. Several weeks after they were put together, Alvarez was taken to the hospital for knee surgery.

When he got to the hospital, Alvarez contacted the Pima County Attorney's Office. He told them that appellant had offered him $10,000 to kill the three children, their father, their father's girlfriend, and Manuelita's sister with whom the children were staying. Alvarez was supposed to escape from the hospital and commit the murders. Alvarez also said that appellant had confessed in detail to the murder of his "comadre." ²

Alvarez agreed to help the county attorney's office with further investigation. He implicated appellant's wife in the conspiracy, and also made a telephone call, taped by the investigators, to appellant at the jail. Subsequently, appellant and his wife were indicted for conspiracy to commit first degree murder. The county attorney's office made a plea offer to Alvarez on the robbery charges in return for his testimony, under immunity, against appellant. Alvarez accepted.

The conspiracy charge was originally to be tried separately from the charges relating to the murder; appellant was appointed the same attorney for both cases. Trial counsel was a private attorney who had been paid only part of his retainer before appellant became indigent. Trial counsel agreed to accept appointment with partial retainer considered as part payment from the county for his work on the case.

A motion in limine was filed in the murder case to preclude all evidence of the conspiracy. When the motion was denied, trial counsel moved to join the trials, and this motion was granted.

The trial lasted two and one-half weeks. Appellant's defense to the murder related charges was alibi. His defense to the conspiracy charge was that Alvarez decided to help appellant by eliminating the witnesses against appellant and coerced appellant to help him through threats of physical force. The jury rejected both defenses and convicted appellant of all counts.

Appellant obtained new counsel for his automatic appeal to this Court. The following issues are raised:

(1) Did the trial court err in telling the venire that all teachers and students would be excused at their request?;

(2) Was trial counsel's assistance ineffective?;

(3) Should the trial court have granted a mistrial when the prosecutor asked a child witness if she was afraid of anyone and she replied she was afraid of appellant?;

(4) Did the trial court err when it instructed the jury that it could convict for conspiracy if it found appellant conspired against any of the six people named in the indictment?;

(5) Can appellant's conspiracy conviction stand when all of his coconspirators have been acquitted or have immunity from prosecution?;

(6) Is the death penalty sentencing procedure in Arizona constitutional?; and

(7) Was the death penalty properly imposed in this case?

JURY SELECTION

During voir dire, the trial judge told the jury panel the trial might last three weeks and, "Any student or any teacher who is teaching, if they want to go, they may." Based on the right to a jury panel representing a cross-section of the community, appellant claims the court erred by granting such a blanket excusal. At trial, however, appellant passed the panel without objection.

We find State v. Arnett, 119 Ariz. 38, 579 P.2d 542 (1978) dispositive.

"A defendant in a criminal case is entitled to a fair and impartial jury for the trial of his case, but he is not entitled to be tried by any particular jury; therefore, unless the record affirmatively shows that such a fair and impartial jury was not secured, the conviction must be affirmed. * * * Our review of the record has disclosed no evidence that the jury which heard this case was not fair and impartial, nor has appellant directed us to any such evidence. Ordinarily, the matter of excusing jurors is committed to the sound discretion of the trial judge, and in the absence of a clear and prejudicial abuse of that discretion, his action will not be disturbed on appeal; this is so even where the judge acts on his own motion. * * * We further note that appellant waived any objection in this regard, both by failing to object at the time of the excusal * * * and by expressly approving the panel at the conclusion of voir dire * * *."

Id. at 50, 579 P.2d at 554 (citations omitted).

In the instant case, appellant passed the jury panel...