State v. Roscoe, CR-93-0278-AP

Citation910 P.2d 635,184 Ariz. 484
Decision Date01 February 1996
Docket NumberNo. CR-93-0278-AP,CR-93-0278-AP
PartiesSTATE of Arizona, Appellee/Cross-Appellant, v. Kevin Scott ROSCOE, Appellant/Cross-Appellee.
CourtSupreme Court of Arizona
OPINION

FELDMAN, Chief Justice.

Defendant Kevin Scott Roscoe has now twice been convicted of child molestation, kidnapping, and murder in the 1982 abduction and slaying of the seven-year-old victim, Laura. This court affirmed his first conviction and sentence in State v. Roscoe, 145 Ariz. 212, 700 P.2d 1312 (1984) (Roscoe I ), cert. denied, 471 U.S. 1094, 105 S.Ct. 2169, 85 L.Ed.2d 525 (1985). Roscoe was granted a new trial in state post-conviction proceedings, however, after showing that the state had offered fabricated evidence at trial. 1 On retrial in 1992, a Maricopa County jury found Roscoe guilty of the same charges and he was again sentenced to death. This appeal followed.

FACTS AND PROCEDURAL HISTORY

At about 6:00 in the evening on May 13, 1982, Laura rode her bicycle from her parents' rural Gilbert home to look for her cat. Her family began searching for her when she did not return. A short time later, her mother called the authorities after finding her bike on a nearby farm road. Laura's bound and gagged nude body was found the next morning along a remote desert road in the San Tan Mountains, approximately twelve miles from her home. Her attacker had sexually molested and strangled her. One of her socks was used to bind her hands behind her back; the other was tied around her head to hold her panties in her mouth as a gag. Her ponytail holders were tightly fastened around her neck. Her clothes and shoes were stacked next to her body.

Roscoe lived nearby and was on parole from California for a sex-related offense. He immediately became a suspect and was questioned by police. Roscoe told the police that on the evening Laura disappeared, he went to a friend's house at 5:30 p.m., where he stayed until going with others to a party around 9:00 p.m. This story was contradicted by Roscoe's friends, who said that he did not arrive at the friend's house until after dark, which would have been at approximately 8:00 p.m. Consequently, Roscoe changed his story and "remembered" that after arriving at the friend's house at 5:30, he went to a nearby convenience store, and car trouble delayed his return.

A man driving in the area saw a car similar to Roscoe's speeding away from the vicinity of the crime at about 7:30 p.m. He said the driver was, like Roscoe, a young caucasian with long brown hair. A week after the murder, Roscoe hurriedly sold that car. When police recovered it, they found evidence inside that implicated Roscoe, including hairs similar to Laura's and traces of human blood.

Other physical evidence implicating Roscoe was discovered and introduced at trial. Carpet fibers similar to the carpet from Roscoe's car were found near Laura's body. Roscoe's pubic hairs were consistent with hairs found on the victim's blouse. His semen was consistent with samples taken from the victim's mouth. Finally, the state also introduced several other bad acts involving Roscoe's sexual improprieties with minor girls. Roscoe stuck to his alibi and challenged the physical evidence, but a Maricopa County jury found him guilty of first degree murder, kidnapping, and child molestation. Concluding that several non-statutory mitigating factors did not outweigh the murder's especially cruel and heinous nature, the trial judge sentenced Roscoe to death and to consecutive, aggravated prison terms for the non-capital offenses.

On appeal, Roscoe raises the following questions:

1. Did the trial judge err by permitting the admission of other bad act evidence?

2. Was the admission of multiple photographs of the child-victim's naked corpse reversible error?

3. Did the trial judge abuse his discretion by precluding a defense expert's testimony on witness identification and memory?

4. Should the trial court have granted a mistrial after the prosecutor argued evidence not admitted at trial?

5. Did the trial court err in denying Roscoe's motion for a new trial on each individual error and on the errors cumulatively?

6. Was Roscoe's right to a unanimous jury verdict violated by not requiring the jury to agree on a single murder theory?

7. Did the trial court err by ordering Roscoe's attorneys not to present certain mitigating evidence during the sentencing phase?

8. Was it error for the trial court to find that the especially heinous, cruel, or depraved aggravating circumstance was proven beyond a reasonable doubt?

9. Did the trial court's failure to consider all relevant mitigating evidence constitute reversible error?

10. Does Arizona's death penalty statute meet constitutional standards?

We address these issues in the order presented. In addition, we address one issue raised by the state in its cross appeal: whether the trial court abused its discretion by not allowing the victim's father to testify at the sentencing phase in rebuttal to Roscoe's mitigating evidence.

DISCUSSION
A. Other bad acts

Before trial, the state filed a motion in limine seeking permission to introduce certain other bad acts of Roscoe under Ariz.R.Evid. 404(b), to show identity, a plan to engage in sexual acts with minors, or propensity for aberrant sexual conduct. Roscoe filed a timely response to the motion. The judge allowed the state to admit the following evidence to show modus operandi and Roscoe's emotional propensity to engage in sexually aberrant acts: (1) a prior sexual assault in California against Cheryl, (2) a sexual encounter Roscoe had with a fourteen-year-old "girlfriend," Kristi, and (3) Kristi's testimony about lewd statements that Roscoe had made to young girls (Cheryl and Kristi incidents respectively). Roscoe claims that the Cheryl and Kristi incidents were erroneously admitted for either purpose. 2 Roscoe also claims that the probative value of the other bad acts was outweighed by unfair prejudice. We look first to the admissibility of the evidence. We review these evidentiary rulings on a discretionary standard. State v. Rivera, 152 Ariz. 507, 515, 733 P.2d 1090, 1098 (1987).

Other bad acts are generally inadmissible to show the defendant's bad character. However, evidence of other bad acts may "be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Ariz.R.Evid. 404(b). Arizona courts have recognized another specific exception to the general rule: other bad acts involving "sexual aberration" are admissible to show the defendant's propensity to commit a similar crime. State ex rel. LaSota v. Corcoran, 119 Ariz. 573, 583 P.2d 229 (1978); State v. McFarlin, 110 Ariz. 225, 517 P.2d 87 (1973). Sexual assaults on a minor of the type presented in this case are always considered aberrant. McFarlin, 110 Ariz. at 228, 517 P.2d at 90.

Although the court admitted the Cheryl and Kristi incidents to establish both modus operandi and emotional propensity, we will affirm the court's admission if it is sustainable on either ground. State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984). Roscoe did not request a limiting instruction, and the trial court's failure to sua sponte give a limiting instruction is not fundamental error. State v. Taylor, 127 Ariz. 527, 529, 622 P.2d 474, 476 (1980); State v. Atwood, 171 Ariz. 576, 639, 832 P.2d 593, 655 (1992), cert. denied, 506 U.S. 1084, 113 S.Ct. 1058, 122 L.Ed.2d 364 (1993).

1. Cheryl incident

In California in 1981, Roscoe pleaded guilty to assaulting Cheryl. Over objection, the trial court admitted evidence of this prior assault. Like Laura, Cheryl had long red hair, fair skin, and freckles. She was seventeen at the time of the assault, but by all accounts she appeared younger than her age. Cheryl testified that in March of 1981, after drinking at a party and passing out in Roscoe's car, she was tied up, sexually assaulted, and left on the side of the road. The following morning, area residents discovered Cheryl sitting naked, blindfolded with a sock tied behind her head, and gagged with another sock. The knots used to tie the socks were the same type used to tie the socks that bound Laura. Cheryl's hands were also bound behind her back with a shoelace tied in similarly distinctive knots. Although Roscoe does not deny that he committed the crime, he claims that the incident should not have been admitted in the murder trial to establish modus operandi or to demonstrate an emotional propensity to engage in aberrant sexual behavior.

In Roscoe I, the trial court admitted evidence of the Cheryl assault only for the purpose of establishing modus operandi. 145 Ariz. at 217 n. 1, 700 P.2d at 1317 n. 1. In that case, this court rejected Roscoe's argument that the evidence was inadmissible for that purpose. Id. at 216-18, 700 P.2d at 1316-18. After carefully describing and analyzing the evidentiary details, this court stated that "there are so many similarities between the two offenses that it could fairly be inferred that the known perpetrator of the first offense was probably the same person who committed the second." Id. at 217-18, 700 P.2d at 1317-18. Thus, under Ariz.R.Evid. 404(b), the evidence was properly admitted to establish modus operandi. The record in this case is substantially the same, and for the same reasons detailed in Roscoe I, we believe evidence of the Cheryl incident was properly admitted to show modus operandi and thus help establish the identity of Laura's killer. This conclusion makes it unnecessary to address the propriety of the court's ruling on...

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