State v. Roseberry

Decision Date11 May 2005
Docket NumberNo. CR-03-0247-AP.,CR-03-0247-AP.
Citation210 Ariz. 360,111 P.3d 402
PartiesSTATE of Arizona, Appellee, v. Homer Ray ROSEBERRY, Appellant.
CourtArizona Supreme Court

Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel Capital Litigation Section and Jon G. Anderson, Assistant Attorney General, Phoenix, Attorneys for Appellee.

Ducar, Lorona & Parks, P.C. by Jess A. Lorona and Gregory E. McClure, Phoenix, Attorneys for Appellant.

OPINION

BERCH, Justice.

¶ 1 Appellant Homer Roseberry was found guilty of transportation of marijuana for sale, conspiracy to transport marijuana for sale, and the first-degree murder of Fred Fottler. The jury sentenced him to death for the murder.

¶ 2 Appeal to this court is direct and automatic when a sentence of death has been imposed. Ariz.Rev.Stat. ("A.R.S.") § 13-703.04 (Supp.2004); Ariz. R.Crim. P. 26.15, 31.2(b). This court has jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution, A.R.S. § 13-4031 (2001), and Arizona Rule of Criminal Procedure 31.2(b).

I. FACTS1
A. Drug Transportation and Murder

¶ 3 In 1997, on a trip to California in their motorhome, Roseberry and his wife, Diane, met members of a marijuana-smuggling ring known as the Pembertons. In late 1998 and early 1999, Roseberry was paid by the Pembertons bertons to transport three loads of marijuana in his motorhome from Arizona to Michigan.

¶ 4 In early October of 2000, Roseberry agreed to transport more than one thousand pounds of marijuana. When Roseberry arrived in Phoenix to pick up the load, the Pembertons informed him that Fred Fottler would accompany him to protect the goods. Several large duffle bags of marijuana were then loaded into the motorhome.

¶ 5 On October 20, 2000, Roseberry set off from Phoenix. At that point, pursuant to a scheme devised by Roseberry and his friend, Charles Dvoracek, Dvoracek traveled to Wickenberg, Arizona, where he was supposed to intercept and steal the motorhome and marijuana while Roseberry and Fottler ate at a Denny's restaurant. So in the early morning hours of October 21, 2000, Dvoracek parked his truck on the side of the road and waited for the motorhome to stop at Denny's. But the motorhome did not stay at the restaurant; instead, after pulling off the road, Roseberry drove the motorhome back onto the highway and continued north toward his home in Nevada.

¶ 6 Dvoracek followed the motorhome, which Roseberry soon pulled over onto the shoulder of the road. As Dvoracek pulled in behind it, he heard two pops. Roseberry stepped out of the motorhome and told Dvoracek that he had "shot the guy" the Pembertons had sent to accompany him on the drug run. Roseberry explained that he pulled the motorhome over because Fottler had fallen asleep on the couch. He seized the opportunity to shoot Fottler in the back of the head.

¶ 7 Because Fottler was still making gurgling noises, Roseberry returned to the motorhome and shot him a third time. Roseberry and Dvoracek then wrapped Fottler's body in a blanket and dumped it into the gully on the side of the road.

¶ 8 As Roseberry drove north through Arizona, he threw his gun out the window of the motorhome. Roseberry and Dvoracek stopped in Kingman, Arizona, to remove other evidence of the crime. They took a blood-stained sheet from the motorhome and threw it over a fence. They also buried Fottler's wallet and moved one of the duffle bags of marijuana from the motorhome to Dvoracek's truck so Dvoracek could sell the drugs to raise money in case it became necessary to bail Roseberry out of jail.

¶ 9 When the men arrived at Roseberry's home in Henderson, Nevada, on October 21, 2000, they put the motorhome and drugs into storage.

¶ 10 Later that day, Roseberry confided to his wife, Diane, that he killed Fottler so he could steal the marijuana and sell it himself. Roseberry told her that his story was going to be that "some Mexicans" with guns were on board the motorhome with him and the victim, and they had killed Fottler while Roseberry was out of the vehicle.

¶ 11 Diane called her brother, Otis Sonny Bowman, and asked him to fly in from Indiana, which he did in the early morning hours of October 22, 2000. Two drug dealers flew in with Bowman. The drug dealers agreed to purchase about 300 pounds of marijuana, which Bowman later transported to Ohio in Roseberry's motorhome. Roseberry and Dvoracek split the money from the sale.

¶ 12 Dvoracek's neighbor, Steven Berkowitz, also transported three loads of marijuana to Ohio for Roseberry and Dvoracek. On his third trip, however, Berkowitz was stopped by the local highway patrol and arrested for drug possession.

B. The Arrest, Investigation, and Trial

¶ 13 Fottler's body was soon discovered in Arizona. Investigative leads from United States Customs agents quickly led Yavapai County Deputy Sheriffs to Roseberry, whose motorhome customs agents had observed while surveilling a Tucson stash house.

¶ 14 An arrest warrant and indictment were issued for Roseberry. The State timely notified him that it would seek the death penalty, but the notice did not specify the aggravating factors on which the State would rely.

¶ 15 The jury found Roseberry guilty of the first-degree murder of Fottler, transportation of more than two pounds of marijuana for sale, and conspiracy to transport more than two pounds of marijuana for sale. The court held the aggravation phase of the trial the next day. The jury found beyond a reasonable doubt that Roseberry committed the murder for pecuniary gain. After a six-month delay and the dismissal of two jurors, the court held the penalty phase of the trial.

¶ 16 On June 6, 2003, the jury returned a verdict of death, finding that any mitigating factors were not sufficiently substantial to call for leniency. On July 14th, the judge sentenced Roseberry to death for Fottler's murder, to an aggravated term of ten years' imprisonment for conspiracy to transport two pounds or more of marijuana for sale, and to a consecutive aggravated term of ten years' imprisonment for transportation of marijuana for sale. An automatic notice of appeal was immediately filed, challenging all of Roseberry's convictions and sentences.

II. DISCUSSION

¶ 17 Roseberry raises thirteen issues on appeal and lists fourteen others to prevent preclusion. We address only those issues argued to this court and attach a list of preserved claims as an appendix to this opinion.

A. Ex Post Facto Violation

¶ 18 Roseberry argues that the new death penalty sentencing statute, A.R.S. § 13-703.01 (Supp.2004), violates the ex post facto provisions of the state and federal constitutions, and A.R.S. § 1-244 (2002).2 In State v. Ring, 204 Ariz. 534, 547, ¶ 24, 65 P.3d 915, 928 (2003) ("Ring III"), this court held that A.R.S. § 13-703.01 does not violate either the state or federal constitutional prohibitions against ex post facto laws because jury sentencing is not a substantive change from prior Arizona law, but rather is merely a procedural change. See also Schriro v. Summerlin, 542 U.S. 348, ___, 124 S.Ct. 2519, 2524, 159 L.Ed.2d 442 (2004)

; State v. Towery, 204 Ariz. 386, 391, ¶ 12, 64 P.3d 828, 833 (2003). Because this procedural change does not retroactively alter the definition of the crime of murder or increase the penalty, Roseberry's ex post facto claim fails. See Ring III, 204 Ariz. at 545-46, ¶ 16, 65 P.3d at 926-27.

B. Notice of Aggravating Factor and Presentation to Grand Jury

¶ 19 Roseberry argues that his state and federal jury trial rights were violated because the State did not present the aggravating factor to the grand jury for a probable cause determination. He also claims that the State's failure to provide formal notice of the aggravating circumstance on which it would rely in seeking the death penalty violates his state and federal due process rights, as well as his right to notice under Rule 15.1(g) of the Arizona Rules of Criminal Procedure.

¶ 20 We recently ruled that neither the state constitution nor the United States Supreme Court opinions in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (Ring II), require that aggravating factors be presented to the grand jury. McKaney v. Foreman (State), 209 Ariz. 268, 269, ¶ 1, 100 P.3d 18, 19 (2004). The question resolved in McKaney is the same one Roseberry raises. We therefore conclude that the trial court did not err in refusing to submit the pecuniary gain aggravating circumstance to the grand jury.3

¶ 21 Roseberry next argues that his due process rights were violated because he did not receive formal notice of the aggravating factor. The State admits that it did not provide notice pursuant to Arizona Rule of Criminal Procedure 15.1(i)(2). However, Roseberry did not object to the lack of notice before trial, during trial, or before the aggravation phase, and he does not claim surprise or prejudice. Because there was no objection, we review this claim only for fundamental error. See State v. Moody, 208 Ariz. 424, 449-50, ¶ 85, 94 P.3d 1119, 1144-45 (2004). "Fundamental error is `error of such dimensions that it cannot be said it is possible for a defendant to have had a fair trial.'" Id. at 450, ¶ 86, 94 P.3d at 1145 (quoting State v. Smith, 114 Ariz. 415, 420, 561 P.2d 739, 744 (1977)).

¶ 22 Roseberry's trial fell into a procedural gap caused by a change in notice requirements under the rules of criminal procedure. The previous rule allowed the State to disclose its list of aggravating circumstances within ten days after a jury returned a verdict of guilt on a first-degree murder charge. Ariz. R.Crim. P. 15.1(g)(2)(a) (2001). After the United States Supreme Court released its Ring II decision in June of 2002, however, Arizona amended its death penalty statute and corresponding rules of criminal procedure. Roseberry's trial was postponed six months to allow the legislature to change its...

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