State v. Romanosky, CR-87-0150-AP
| Decision Date | 19 October 1989 |
| Docket Number | No. CR-87-0150-AP,CR-87-0150-AP |
| Citation | 162 Ariz. 217,782 P.2d 693 |
| Parties | STATE of Arizona, Appellee/Cross-Appellant, v. John Thomas ROMANOSKY, Appellant/Cross-Appellee. |
| Court | Arizona Supreme Court |
Defendant, John Thomas Romanosky, was convicted of the first degree murder and armed robbery of John Smith and the aggravated assault of John Smith's wife, Sara. He was sentenced to death for the murder and to consecutive terms of 28 years and 20 years for the robbery and assault. The murder conviction and sentence are here on automatic appeal, Ariz.R.Crim.P. 31.2(b), and defendant has also timely appealed his other convictions and sentences. The state has cross-appealed. We have jurisdiction under article 6, § 5 of the Arizona Constitution and A.R.S. § 13-4031.
Because of the manner in which we resolve this case, we decide only the following issues:
1. Whether the trial court erred in admitting "composite identification" testimony.
2. Whether the trial court erred in admitting into evidence three T-shirts found in defendant's trailer.
3. Whether the trial court erred in admitting into evidence three cartridges seized at co-defendant Shepherd's house.
4. Whether the trial court erred in permitting a police officer to describe the photo lineup he conducted with the surviving victim, Mrs. Smith.
5. Whether there is sufficient evidence to support the verdicts.
6. Whether the trial court erred in requiring the state to produce extrinsic evidence of the use or threat of violence before considering whether defendant's four prior felony convictions qualified as statutory aggravating circumstances under A.R.S. § 13-703(F)(2).
Because one of the claims on appeal is the alleged insufficiency of the evidence to support the verdicts, we state the facts in a manner most favorable to supporting the verdicts, while recognizing that a trier of fact could arrive at different conclusions concerning some of the facts. State v. Hutton, 143 Ariz. 386, 390, 694 P.2d 216, 220 (1985).
Early on May 17, 1986, defendant and Debra Sturgeon began drinking in their trailer. They continued drinking throughout the day. Close to nightfall they were joined by Charles Shepherd. During the course of the evening, the three of them left the trailer once and returned. They then left a second time, proceeding, at some point in the middle of the night, to the Travelodge Motel on East Van Buren in Phoenix.
Initially, the trio intended to get money from a friend of Sturgeon's named Craig who worked at the front desk of the Travelodge. Craig had a scheme by which he would not file registration cards of guests who paid in cash; he would then share the money with his friends. Noticing that Craig was not working, the three circled the block and then drove into the Travelodge parking lot, parked and got out.
They then went to the second floor of the motel where the defendant instructed Sturgeon to knock on the door of a room. When no one answered, defendant instructed Sturgeon to knock on the next door, room 59, which was occupied by the victims, John and Sara Smith. Mrs. Smith had just returned from visiting relatives in Florida, and Mr. Smith had met her at the airport. Because the Smiths intended to shop in Phoenix the next day, they planned to stay overnight at the motel.
When Sturgeon knocked on the door of room 59, Mr. Smith opened the door. Sturgeon told him that she had knocked on the wrong door. After the door was closed, defendant directed Sturgeon to knock again. This time, Mrs. Smith opened the door. Defendant pushed her aside, entered the room, confronted Mr. Smith with a gun and demanded money. As Mr. Smith reached for his wallet, defendant shot him in the chest, killing him instantly. Defendant ordered Mrs. Smith to retrieve the wallet, but she was unable to recover it from her husband's body. After telling Mrs. Smith, "If you want to live, then get the money," Sturgeon took the wallet from Mr. Smith's body. Defendant and Sturgeon then took a sack belonging to the Smiths and left. Mrs. Smith watched the two and Shepherd leave in what she described as a "light," "big" car.
According to Sturgeon, as the trio departed, defendant reached for a beer in the car and, in doing so, accidentally fired his gun, grazing the left side of his body. The three proceeded to defendant's trailer where they divided the stolen goods. The next day defendant and Sturgeon abandoned the trailer, taking their possessions with them. 1
Two days later the police arrested defendant and Sturgeon. The circumstances of the arrest are unclear from this record and will be discussed in more detail in a later section of this opinion. Upon arresting Sturgeon, the police seized a green laundry bag containing clothing and personal items. The bag contained a souvenir Florida T-shirt. In searching defendant's and Sturgeon's former trailer, the police discovered and seized three T-shirts with Florida logos.
On the day after the murder, Jack Doss, who lived with his mother and Shepherd, found a sackful of gun parts in his room. Included in the sack was a cylinder containing three live .357 magnum bullets. Two days later the police executed a search warrant on the house and seized the cylinder and bullets.
Defendant, Sturgeon and Sheperd were indicted for the murder and armed robbery of John Smith and for the aggravated assault of Sara Smith. Sturgeon pled guilty to second-degree murder and received a flat ten-year sentence. She testified as a state's witness at defendant's trial. Shepherd was tried separately.
A major contention on appeal revolves around an issue that the parties and the court, in briefs and argument, have referred to as the "composite identification" issue. The question is whether the receipt of the composite identification testimony from Officer Butler and the receipt in evidence of physical items based on that testimony constitute reversible error. We set the stage with a fairly detailed recitation of applicable facts to place the issue in its proper context.
Mrs. Smith, the surviving victim, was unable to identify the defendant at trial. In an earlier photo lineup she had also been unable to identify him, but had stated she believed the murderer to be one of two of the several individuals depicted in the photo lineup. Defendant was one of the two. After the murder, police were called to the scene. An unidentified officer (not Officer Butler) obtained a partial description of a man and a woman from Mrs. Smith. Although the record is imprecise as to exactly how Mrs. Smith described the assailants to the unidentified officer, her description was admittedly sketchy. At trial, she could recall only that the man was "I don't know, about 5'10"', dark hair, full beard, average" and she remembered stating earlier that he had pock marks on his cheek. With respect to the woman, Mrs. Smith's only recollection was that she was "about 5'6"', light hair like strawberry blonde, thin."
On the day of the murder, an armed robbery occurred at a Circle K in Phoenix. From various individuals not identified in this record, police officers (also not identified in this record) obtained fairly detailed descriptions of a man and woman involved in the Circle K robbery. Comparing these descriptions to the partial description Mrs. Smith had provided concerning her husband's murderers, police suspected that the same couple might be involved in both crimes. The defendant and Sturgeon were arrested on May 19, 1986, two days after the murder. The arresting officer was Detective Butler.
The only portion of the composite identification that related to this case came from Mrs. Smith. All other parts of the composite identification came from witnesses to the Circle K robbery. 2
During Officer Butler's direct examination, he testified that "[d]uring the time I was at the scene, information had been gained as to possible suspect descriptions that were involved in this homicide." When asked how those descriptions were obtained, Butler went on to state that:
At that point defense counsel made a hearsay objection which was sustained. Then there was a bench conference, which went as follows:
MR. SCULL: Judge, what my position is on this is that any time the police go out and make an investigation, all of the police officers share the same knowledge. That's the law as I understand it. They put together a description, a compilation of their knowledge they seen, and that's the description that they use in going out and trying to effectuate an arrest. So that not one police officer can testify to any one particular thing many times, but it's a compilation of knowledge, and they're all assumed and presumed as sharing the same knowledge.
Now, there was a description that was put out of these 2 suspects. That's the description that I'm trying to bring in at this time.
MS. PARKER: Your Honor, the problem with this is the only person who can testify that they actually saw these potential suspects is Sara Smith. From the description Sara Smith gave, the officers became aware that there was the earlier armed robbery with similar suspect descriptions in that.
I don't think that a compilation of all of these earlier descriptions lead us anywhere. The description that they got from Sara Smith should come in through Sara Smith, and then the fact that Romanosky and Summerville or Sturgeon were...
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