State v. Prince

• Decision Date: 06 April 1989
• Docket Number: No. CR-86-0162-AP,CR-86-0162-AP
• Citation: 160 Ariz. 268,32 Ariz.Adv.Rep. 12,772 P.2d 1121
• Parties: STATE of Arizona, Appellee, v. Larry Joseph PRINCE, Appellant.
• Court: Arizona Supreme Court

Page 1121

772 P.2d 1121

160 Ariz. 268

STATE of Arizona, Appellee, v. Larry Joseph PRINCE, Appellant.

No. CR-86-0162-AP.

Supreme Court of Arizona, In Banc.

April 6, 1989.

Robert K. Corbin, Atty. Gen., by William J. Schafer III, Diane M. Ramsey, Asst. Attys. Gen., Phoenix, for appellee.

Patterson & Seplow by Philip A. Seplow, Phoenix, for appellant.

MOELLER, Justice.

JURISDICTION

Defendant Larry Joseph Prince was convicted of first degree murder and sentenced to death. He appeals both the conviction and the sentence. This court has jurisdiction pursuant to A.R.S. § 13-4031 and article VI, § 5(3) of the Arizona Constitution.

FACTS

Defendant used and sold cocaine supplied by the victim, Robert Richards. Generally, Richards would advance defendant a quantity of cocaine, defendant would "cut it," sell it, and then pay Richards. The evidence clearly demonstrates the defendant killed the victim; his reason for doing so is less clear.

On Monday, October 8, 1984, defendant was arrested on an assault charge. At the time of his arrest, he owed Richards money for past cocaine transactions. He was released from jail on Thursday, October 11, 1984. That evening he celebrated his release at the apartment he shared with his girlfriend, Tammy Shaw. Also living at the apartment were Kevin Cobey, a co-defendant who ultimately pled guilty to burglary and testified for the state, and Cobey's girlfriend, Julie Swan.

On Friday, October 12, 1984, the day Richards was murdered, defendant and Cobey went to Tom Ellinghausen's apartment. Cobey previously lived with Ellinghausen until Ellinghausen demanded he move out because of Cobey's involvement with cocaine. Ellinghausen testified that Cobey and defendant arrived at his apartment between 7:00 and 8:00 p.m. Cobey testified that defendant had a gun with him at Ellinghausen's apartment--a KG-99. Other witnesses confirmed that defendant often carried a KG-99.

At Ellinghausen's apartment, Cobey, defendant, and Ellinghausen watched a sporting event on television. From the apartment, defendant telephoned the victim, Richards. Richards telephoned defendant back and they made plans for Richards to meet defendant in the parking lot outside Ellinghausen's apartment. Cobey testified that after defendant's conversation with Richards, defendant told Cobey that "he was pissed off," that "Rob didn't have his stuff or something," and that "he was going to shoot him."

During the telephone conversation, Richards was at a house belonging to James Tabola. In return for cocaine, Tabola permitted Richards to use a closet in his house to store cocaine and prepare it for sale. Richards arrived at Tabola's house at approximately 7:30 p.m. After the telephone conversation, Richards asked Tabola for a baggy and some flour. Richards told Tabola that he planned to sell the flour as cocaine and thereby recover $1100 owed to him by the person with whom he had just spoken. Richards then told Tabola he was going to meet a person who had just been released from jail for assault a few days before and who owed him $1100. ¹

Shortly after this phone conversation, the defendant, carrying the KG-99 gun wrapped in a towel, left Ellinghausen's apartment to meet Richards in the parking lot. By this time, Ellinghausen had gone into the bathroom to get ready to go out for the evening; he closed the door and had the fan and water running. Cobey was still in the main area of the apartment. Cobey testified that he heard a car pull up in front of the apartments and then heard a shot. Cobey pulled back the curtain and saw Richards's car pull away.

Shortly after Cobey saw the car pull away, defendant telephoned Ellinghausen's Later, defendant and Cobey went to Richards's apartment, entering it with the keys the defendant had taken from Richards's car. Inside, they searched Richards's apartment for cocaine, money, and jewelry. Finding only jewelry, they took it, left Richards's keys on the kitchen counter, and went to the apartment they shared with Tammy Shaw and Julie Swan. There, later that evening, defendant admitted the murder to Cobey, describing how he had shot Richards in the face, rolled him over to the passenger side of the car, and driven away. When Cobey inquired of defendant about the cartridge from the bullet, defendant responded that he would "take care of it."

[160 Ariz. 271] apartment and spoke to Cobey. Cobey, in turn, told Ellinghausen that they needed to pick defendant up at a nearby Jack-in-the-Box. When Cobey and Ellinghausen met defendant at the Jack-in-the-Box, he was not wearing a shirt and did not have the gun with him. He was, however, carrying some of Richards's jewelry. The three men then stopped at a Circle K, bought a six-pack of beer, and returned to Ellinghausen's apartment.

Cobey subsequently told Ken Hatch, a mutual friend of Cobey and defendant, about the murder. Later the same day, Hatch confronted defendant about it. Initially, defendant denied any involvement to Hatch, but later that night admitted the murder to him. Defendant eventually told Hatch details involved in the murder, including shooting Richards in the mouth, removing Richards from the driver's seat, and then driving to the location where the body was found and walking away.

On Sunday morning, October 14, Daniel McCling found Richards's body and called the police. On the night of the murder, McCling had seen brake lights from a car through his window. He went to the window, looked out, and saw an unidentified white male (the defendant is white) get out of the car and walk away. Although he was unsure of the time, McCling thought this occurred at approximately 10:00 p.m.

ISSUES PRESENTED

1. Whether defendant is entitled to a reversal because a judge pro tem presided at his trial.

2. Whether the trial court erred by not suppressing defendant's statements.

3. Whether the trial court erred by not suppressing evidence seized pursuant to a search warrant.

4. Whether defendant is entitled to a reversal because of evidentiary rulings of the trial court.

5. Whether the verdict is contrary to the weight of the evidence.

6. Whether the trial court abused its discretion by denying a new trial based on alleged juror misconduct.

7. Whether the trial court properly imposed the death penalty.

JUDGE PRO TEM

A full-time court commissioner sitting as a judge pro tem presided over defendant's trial. Defendant contends for the first time on appeal that he has an absolute right to be tried by a permanent merit selection judge. Defendant waived this argument by failing to raise it at trial. See State v. Mincey, 141 Ariz. 425, 687 P.2d 1180 (1984). In any event, his argument is without merit. State v. White, 160 Ariz. 24, 32, 770 P.2d 328, 336 (1989).

We note, however, that whenever possible, the original trial judge should hear post-conviction relief proceedings. Ariz.R.Crim.P. 32.4(c); see also State v. Gerlaugh, 144 Ariz. 449, 698 P.2d 694 (1985). Judges pro tem are less likely to be available to hear post-conviction matters than permanent judges. As a matter of judicial economy and to promote the purposes that led us to adopt Rule 32.4(c), we suggest that, when possible, cases involving potential death sentences or even lengthy prison sentences be assigned to permanent judges.

DEFENDANT'S STATEMENTS

Defendant acknowledges that he was informed of his Miranda rights and responded affirmatively when asked if he understood those rights. Because no officer By responding to questions defendant had just indicated he understood he was not required to answer, the trial court could conclude that defendant knowingly, intelligently, and voluntarily waived his right to remain silent. It is not necessary for any particular procedure or ceremony to take place; the defendant need not proclaim: "I waive my Miranda rights." So long as it is apparent from the totality of the circumstances that defendant understands his rights and nevertheless chooses to answer questions, we will affirm a finding of waiver. See State v. Hein, 138 Ariz. 360, 674 P.2d 1358 (1983).

                [160 Ariz. 272]  specifically asked defendant if he waived his rights, he contends the trial court erroneously admitted his statements.  We will uphold the trial court's ruling on waiver issues absent clear and manifest error.   State v. Cruz-Mata, 138 Ariz. 370, 373, 674 P.2d 1368, 1371 (1983)
                

Defendant also contends that the interrogating officer ignored his "request" for an attorney and, therefore, the court should have suppressed his statements after the "request." At the hearing on the motion to suppress, defendant said he asked the officer: "Do you think I should get a lawyer?" and the officer responded: "That's up to you." The officer recalls no such exchange. However, assuming it occurred, it does not constitute an invocation of right to counsel. See State v. Linden, 136 Ariz. 129, 134, 664 P.2d 673, 678 (App.1983) (citing United States v. Bettenhausen, 499 F.2d 1223, 1231 (10th Cir.1974) ("The record shows that the defendant clearly understood his right to counsel and did not make a specific request for assistance of counsel.")). We hold that the trial court properly admitted defendant's statements.

SEARCH WARRANT

Defendant questions the legality of the search warrants used to seize evidence from his two residences ² and contends the court should have suppressed the resulting evidence, which included an empty box for a KG-99 nine millimeter pistol. We will not reverse a trial court's ruling on a motion to suppress absent an abuse of discretion. State v. Carter, 145 Ariz. 101, 110, 700 P.2d 488, 497 (1985); State v. Fischer, 141 Ariz. 227, 236, 686 P.2d 750, 759, cert. denied, 469 U.S. 1066, 105 S.Ct. 548, 83 L.Ed.2d 436 (1984).

Defendant attacks the warrants on two grounds. First, he contends that the supporting affidavits do not establish probable cause that the property sought was located on the premises to be searched. Second, he contends the warrants are so broad as...