State v. Parker

• Decision Date: 13 March 2013
• Docket Number: No. CR–10–0196–AP.,CR–10–0196–AP.
• Citation: 296 P.3d 54,656 Ariz. Adv. Rep. 6,231 Ariz. 391
• Parties: STATE of Arizona, Appellee, v. Steven John PARKER, Appellant.
• Court: Arizona Supreme Court

231 Ariz. 391

296 P.3d 54

656 Ariz. Adv. Rep. 6

STATE of Arizona, Appellee,

v.Steven John PARKER, Appellant.

No. CR–10–0196–AP.

Supreme Court of Arizona.

March 13, 2013.

Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation, John Pressley Todd, Assistant Attorney General, Jeffrey A. Zick, Assistant Attorney General, Phoenix, Attorneys for State of Arizona.

David Goldberg, Attorney at Law By David Goldberg, Fort Collins, CO, Attorney for Steven John Parker.

OPINION

BERCH, Chief Justice.

¶ 1 Steven John Parker was sentenced to death for two murders, and this automatic appeal followed. We have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 13–4031.

I. FACTS AND PROCEDURAL HISTORY ¹

¶ 2 Wayne and Faye Smith were found murdered in their home on September 26, 2005. Faye's ankles were bound, and she had been stabbed to death. Wayne also had been stabbed several times, but died from blunt force trauma to his head. The medical examiner could not determine the time of death for either victim, but they were last seen alive two days earlier, on September 24.

¶ 3 Wayne's wallet and Faye's purse were missing from the home. On September 24, 2005, between 4:50 and 5:30 p.m., someone used the Smiths' credit and bank cards at several locations near their home. The next day, the cards were used at an ATM in Quartzsite, Arizona, and at a gas station in Temecula, California.

¶ 4 At the time of the murders, Parker lived next door to the Smiths with a roommate, Tasha Uhl. On September 24, the likely day of the murders, Uhl could not find Parker around 2:30 or 3:00 in the afternoon, despite calling for him both inside and outside the house. Parker later came in and told Uhl he had been doing yard work and had not heard her call. Uhl left around 5:00 p.m., and Parker's girlfriend picked him up from the house just over an hour later. The two were together until the morning of Sunday, September 25.

¶ 5 That day, Parker left in Uhl's car without her permission. At the time, Parker owed money to his employer. He drove to Mexico and then to California. He abandoned the car in San Diego and hitched a ride to Chino, California, where friends told him he was a “person of interest” in the Smiths' murders. Parker then took a bus to Las Vegas, where he remained for four days until he was arrested and jailed on October 13, 2005. Police questioned Parker about the murders, but charged him only with stealing Uhl's car and his employer's money. Parker eventually pleaded guilty to stealing from his employer and was sentenced to probation.

¶ 6 Shortly after Parker's release from jail, testing revealed that Parker's DNA matched DNA from a drop of blood found on the Smiths' kitchen sink and DNA from a napkin found on the kitchen counter. Police arrested Parker again on May 26, 2006, and charged him with the murders, first degree burglary, and kidnapping.

¶ 7 At trial, Parker testified that he was not involved in the crimes and asserted that another man killed the Smiths. The jury found him guilty of all charges. The jury also found three aggravating factors: pecuniary gain, A.R.S. § 13–751(F)(5); especial cruelty, id. § 13–751(F)(6); and multiple homicides, id. § 13–751(F)(8). After finding no mitigation sufficient to call for leniency, the jury determined that Parker should be sentenced to death for each murder.

II. DISCUSSION

A. Speedy Trial

¶ 8 Parker argues that he was denied his right to a speedy trial in violation of the Sixth Amendment.² We review issues of constitutional law de novo and related factual determinations for abuse of discretion. State v. Smith, 215 Ariz. 221, 233, ¶ 57, 159 P.3d 531, 543 (2007).

¶ 9 The Sixth Amendment's guarantee of a speedy trial protects a defendant's right to be brought to trial without undue delay. There is no bright line rule for how quickly a trial must occur. In evaluating such claims, courts weigh (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of the right to a speedy trial, and (4) the prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. Spreitz, 190 Ariz. 129, 139, 945 P.2d 1260, 1270 (1997). Parker's trial began on March 15, 2010, three years and nine months after his May 26, 2006 arrest and June 6, 2006 indictment. Under the first Barker factor, this delay is sufficient to trigger the full Barker analysis.

¶ 10 The second Barker factor requires examination of the reasons for the delay. See Vermont v. Brillon, ––– U.S. ––––, 129 S.Ct. 1283, 1290, 173 L.Ed.2d 231 (2009) (analyzing “whether the government or the criminal defendant is more to blame for th[e] delay”) (alteration in original).

¶ 11 During the first year of the case, the defense spent significant time pursuing a motion to remand the case to the grand jury, seeking special action review of the denial of that motion at the court of appeals, and petitioning for review to this Court. On August 15, 2007, the State and defense counsel agreed to exclude 305 days from the time calculation, and Parker waived all applicable time limits.

¶ 12 Parker is also responsible for an eleven-month delay in 2008 and 2009. He asked to delay his trial date because his lead defense attorney had another trial and needed more time to investigate. The trial court rescheduled Parker's trial and excluded this time, with Parker's consent.

¶ 13 Parker's lead attorney then retired at the end of 2008. This caused an additional ten-month delay until March 15, 2010. The State is not responsible for defense counsel's decision to retire and the resulting delay. Cf. Dies v. State, 926 So.2d 910, 916–17, ¶ 15 (Miss.2006) (“original judge's retirement and his replacement by the assistant district attorney who was prosecuting this case was [not attributable to] either the State or [the defendant]”).

¶ 14 Parker argues that the delays occasioned by defense counsel's trial schedule should not be attributed to him because they were caused by underfunding of the criminal justice system and the high number of capital cases in Maricopa County at the time. Delays caused by systemic breakdowns can be charged to the state in certain cases. See Brillon, 129 S.Ct. at 1292. This case, however, does not rise to that level. In State v. Hanger, for example, the county refused to pay defense counsel. 146 Ariz. 473, 474, 706 P.2d 1240, 1241 (App.1985). And in Doggett v. United States, the government was negligent in tracking down the defendant and took eight years to prosecute the case. 505 U.S. 647, 652–53, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). Comparable circumstances are not present here.

¶ 15 The third Barker factor requires the defendant to assert his right to a speedy trial in order to establish a constitutional violation. State v. Schaaf, 169 Ariz. 323, 327, 819 P.2d 909, 913 (1991) (stating that speedy trial violation “is waived unless asserted promptly”). Parker did not assert his right to a speedy trial until February 24, 2009, two years and nine months after his arrest. Parker's delay in asserting his right weighs against him. See, e.g., State v. Henry, 176 Ariz. 569, 579, 863 P.2d 861, 871 (1993) (fourteen-month delay in asserting right weighed against defendant); Phan v. State, 290 Ga. 588, 723 S.E.2d 876, 883 (2012) (same, for three-and-a-half-year delay). Parker clearly consented to delays through June 2008, and once he began asserting his speedy trial right, his case went to trial within a year.

¶ 16 The fourth and most important Barker factor is whether the delay prejudiced the defendant. State v. Soto, 117 Ariz. 345, 348, 572 P.2d 1183, 1186 (1977). We assess prejudice in light of the interests that the speedy trial right protects against: (1) “oppressive pretrial incarceration,” (2) “anxiety and concern of the accused,” and (3) “the possibility that the defense will be impaired” by diminishing memories and loss of exculpatory evidence. Barker, 407 U.S. at 532, 92 S.Ct. 2182. Of these forms of prejudice, “the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Id.; see Soto, 117 Ariz. at 348, 572 P.2d at 1186.

¶ 17 The trial court found that Parker failed to show any prejudice other than pretrial incarceration. The court allowed Parker to supplement the record to show prejudice, but he did not do so. Instead, Parker argues that he did not need to show prejudice given the lengthy delay and the anxiety he suffered from his pre-trial incarceration.

¶ 18 Trial occurred almost four years after Parker was charged with the murders. But like the defendant in Spreitz, Parker asserted no prejudice except that arising from his pre-trial incarceration. See Spreitz, 190 Ariz. at 140, 945 P.2d at 1271 (noting that five years' incarceration “may have increased defendant's anxiety[,] ... [but] the delay did not prejudice his ability to defend against the state's claims”); Phan, 723 S.E.2d at 883–84. For these reasons, Parker has not established a violation of his Sixth Amendment right to a speedy trial.

B. Voir Dire

¶ 19 Parker argues that the trial court abused its discretion by limiting his questions during voir dire. Over Parker's objection, the trial judge refused to include in juror questionnaires a question on whether prospective jurors would automatically vote for the death penalty. The judge did, however, ask each panel of potential jurors this question and excused those who said they would automatically vote for death. Defense counsel sought to probe further the remaining jurors' views on the death penalty, but the judge precluded questions about the jurors' feelings on the death penalty and what types of mitigation they would consider, characterizing them as “stakeout questions.”

¶ 20 We review restrictions on the scope of voir dire for abuse of discretion. State v. Johnson, 212 Ariz. 425, 434, ...