State v. Prasertphong

• Decision Date: 02 September 2003
• Docket Number: No. CR-01-0100-AP.,CR-01-0100-AP.
• Citation: 206 Ariz. 70,75 P.3d 675
• Parties: STATE of Arizona, Appellee, v. Kajornsak PRASERTPHONG, Appellant.
• Court: Arizona Supreme Court

75 P.3d 675

206 Ariz. 70

STATE of Arizona, Appellee, v. Kajornsak PRASERTPHONG, Appellant.

No. CR-01-0100-AP.

Supreme Court of Arizona, En Banc.

September 2, 2003.

Janet A. Napolitano, Former Attorney General, Terry Goddard, Attorney General by Kent E. Cattani, Chief Counsel, Capital Litigation Section, Phoenix, and Monica B. Klapper, Assistant Attorney General, Bruce M. Ferg, Assistant Attorney General, Tucson, Attorneys for Appellee.

Susan A. Kettlewell, Pima County Public Defender by Rebecca A. McLean, Assistant Public Defender, Lori J. Lefferts, Assistant Public Defender, Tucson, Attorneys for Appellant.

OPINION

RYAN, Justice.

¶ 1 A Grand Jury indicted Kajornsak Prasertphong and Christopher "Bo" Huerstel charging them with three counts of first degree murder and three counts of armed robbery for events that occurred at a Pizza Hut restaurant in Tucson. The trial jury convicted Prasertphong of three counts of first degree felony murder and three counts of armed robbery. Following a mitigation and aggravation hearing, the trial judge sentenced him to death for the murders of Melissa Moniz and James Bloxham, and to life imprisonment without the possibility of release for the death of Robert Curry. Prasertphong also received three concurrent prison terms of twenty-one years for the three armed robbery convictions. Appeal is automatic when the trial court imposes a sentence of death. Ariz. R.Crim. P. 26.15 and 31.2(b). We have jurisdiction under Article 6, Section 5.3 of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") section 13-4031 (2001).

I.

¶ 2 On January 17, 1999, Moniz, Bloxham, and Curry were working the dinner shift at the Pizza Hut.¹ At approximately 11:00 p.m., Michael Orban arrived at the Pizza Hut to pick up Moniz. He found her lying at her waitress station, still alive and spitting out blood. Orban "freaked out." As he turned to run to a Circle K to call 911, he saw Curry and Bloxham, both dead, lying in a pool of blood near the counter by the cash register.

¶ 3 Shortly after Orban's call to 911, an ambulance arrived at the Pizza Hut and took Moniz to the hospital. She died at the hospital one to two hours later of gunshot wounds to the head, neck, and right arm and hand. Curry died of gunshot wounds to the head, neck, and chest. He likely bled to death within five to twenty minutes. When he died, he had 358 dollars in his pockets. Bloxham died of gunshot wounds to the head, chest, abdomen, and left leg. Bullets passed through his lungs as well as the middle of his brain, and he likely died immediately or within three to four minutes.

¶ 4 By the time Tucson Police Department detectives arrived at the Pizza Hut, Moniz had already been removed from the crime scene. During the course of their investigation, the detectives noticed one booth in the restaurant on which silverware, plates, and napkins remained. Later testing of those items revealed DNA evidence from both Prasertphong and Huerstel.

¶ 5 The detectives found bullets, bullet fragments, and shell casings throughout the restaurant, near the victims, in the wait station, on top of the cash register, and lodged in a gumball machine. One shell casing was found near the east entrance of the Pizza Hut, outside of the wait station. Criminalist Lucien Haag testified that from the placement of that shell casing it was likely that the round was fired near the restrooms, and that the bullet traveled through the wall of the wait station, past the area in front of the cash registers, and into the gumball machine, located near the west entrance. Small pieces of Formica or particle board that made up the wall were scattered on the floor outside of the wait station. Based on the location of those pieces, a detective determined that the bullet came from the area by the restrooms and traveled across the restaurant toward the front door.

¶ 6 The morning after the murders, the Tucson Police Department received a telephone call from Josh Simmons. Simmons told police that earlier that morning, Huerstel admitted to Simmons that he and Prasertphong were involved in the Pizza Hut murders. According to Simmons, Huerstel stated that he and Prasertphong originally had gone to the Pizza Hut to rob the restaurant. Huerstel also told Simmons that he shot Moniz first in the neck, then "continued to the back." When he came from the back, Huerstel claimed that Prasertphong was trying to break Moniz's neck. Simmons told police that Huerstel did not relate any details about the killings of Bloxham or Curry. Simmons then told police where they could find Prasertphong and Huerstel. Based on Simmons' tip, the police located and arrested Prasertphong and Huerstel. They were standing next to Prasertphong's truck when arrested.

¶ 7 Once in custody, Detectives Olivas and Charlton questioned Prasertphong and Huerstel. The interviews were audio taped. Huerstel was questioned first but denied any involvement in the murders and denied having eaten at the Pizza Hut.

¶ 8 Before questioning Prasertphong, Detective Olivas determined that Prasertphong was a native of Thailand and confirmed that he understood English. He was read his Miranda² rights, and he agreed to answer questions.

¶ 9 Prasertphong told detectives that on the evening of January 17, 1999, he and Huerstel ate at the Pizza Hut. Prasertphong drove the pair to the restaurant in his 1995 Nissan pickup truck. Prasertphong normally kept his Glock 22 .40 caliber gun in the truck. While eating, the pair discussed robbing the Pizza Hut. It was during this discussion that Prasertphong claimed to have learned that Huerstel brought Prasertphong's gun into the restaurant. But, according to Prasertphong, he decided not to rob the restaurant because there was a female present and because he had his debit card with him.

¶ 10 After they ate, Prasertphong said he went to the cash register to pay the bill with his debit card while Huerstel went to the restroom. Prasertphong claimed that as the debit card machine was printing the receipt, Huerstel came out of the bathroom "going crazy" with Prasertphong's gun. The first shot hit Moniz. Curry asked Huerstel, "What do you want, what do you want, what do you want?" Huerstel replied, "Where's the safe?" He then shot Curry. Curry dropped a bank bag as he fell to the ground. As Bloxham started to run toward the back, Huerstel "took him out too."

¶ 11 Meanwhile, Moniz began to crawl up on her knees. Prasertphong wanted to make sure she was dead, so he "grabbed her by the hair and looked at her. And she was still breathing." He tried to snap her neck but was unsuccessful, so Huerstel shot her in the head. On the way out of the restaurant, Prasertphong took the debit card machine as well as the bank bag that Curry had dropped. The bank bag contained only checks. The cash register was left untouched and there was no evidence that Prasertphong or Huerstel took anything from the safe. ¶ 12 Prasertphong also told the detectives that after committing the crimes, he and Huerstel fled the Pizza Hut in Prasertphong's truck. They threw the debit card machine into a wash and burned the bank bag. Prasertphong put the murder weapon, the weapon's magazine, a pair of gloves, and several pieces of identification into a plastic bag and hid it inside the wheel well of the spare tire underneath the truck. Prasertphong and Huerstel then went to Aaron's Billiards. While there, Prasertphong called in a false police report to the Tucson Police Department claiming that his truck had been broken into and that his wallet, identification cards, and other items were missing.

¶ 13 After filing the false police report, Prasertphong and Huerstel left Aaron's Billiards and went to a friend's house to spend the night. Adam Wilkey and Josh Simmons were asleep at the house when Prasertphong and Huerstel arrived. At the end of the interview, Prasertphong told the detectives where to find his gun and the burned bank bag and led them to the debit card machine.

¶ 14 After interviewing Prasertphong, detectives played a portion of that interview for Huerstel. Upon hearing Prasertphong admit to some involvement in the murders, Huerstel admitted he also had been involved and that he shot the three victims.

¶ 15 The trial court granted a motion to sever Prasertphong's and Huerstel's trials, but over objection, conducted the trials simultaneously before dual juries. Because of pretrial publicity, the case was tried in Prescott.

II.

¶ 16 Prasertphong first argues that he was denied a fair trial because the trial court admitted, over his objection, evidence obtained during a warrantless search of his truck.

¶ 17 After Prasertphong and Huerstel were arrested, Detective Wright had Prasertphong's truck towed to the police station in Tucson because she felt that it was not secure on the street because of an unlockable rear window. Once at the station, Detective Wright still did not believe that the truck was secure, claiming that the police garage is "a major thoroughfare going into the police station" and could be accessed by anyone in the station. She therefore conducted a warrantless search of the vehicle specifically looking for a weapon. She searched the cab of the truck, the engine compartment, and under the vinyl cover over the bed of the truck but did not find a weapon.

¶ 18 After Prasertphong told Detectives Olivas and Charlton where the gun was located, Detective Wright was directed to conduct a second warrantless search, specifically looking in the wheel well of the spare tire underneath the truck. The second search produced a clear plastic baggie containing a holster, a Glock 22 .40 caliber gun, a loose bullet, ammunition, a gun magazine, a pair of gloves, and Prasertphong's identification cards.

¶ 19 Two days later, the police obtained a telephonic search warrant for a third search of the vehicle, as well as for luminol testing, which can disclose the presence of blood stains. The testing...