State v. Ross

• Citation: 886 P.2d 1354,180 Ariz. 598
• Decision Date: 22 December 1994
• Docket Number: No. CR-91-0133-AP,CR-91-0133-AP
• Parties: STATE of Arizona, Appellee, v. Arthur Martin ROSS, Appellant.
• Court: Supreme Court of Arizona

Page 1354

886 P.2d 1354

180 Ariz. 598

STATE of Arizona, Appellee, v. Arthur Martin ROSS, Appellant.

No. CR-91-0133-AP.

Supreme Court of Arizona, In Banc.

Dec. 22, 1994.

[180 Ariz. 600] Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Crim. Appeals Section and Linda L. Knowles, Asst. Atty. Gen., Phoenix, for the State.

[180 Ariz. 601] Harriette P. Levitt, Tucson, for Arthur Martin Ross.

OPINION

MARTONE, Justice.

Arthur Martin Ross was found guilty of premeditated first degree murder and armed robbery. He was sentenced to death for the murder and life imprisonment for the armed robbery. He appeals to this court. See Rules 26.15 and 31.2(b), Ariz.R.Crim.P.; A.R.S. § 13-4031. We affirm the convictions and sentences.

I. BACKGROUND

During the morning of April 10, 1990, Ross contacted Mac Moore, a real estate agent. Ross identified himself as Michael Davis, and expressed an interest in looking at residential property. Ross and his 14-year-old son Jason went to Moore's office and arranged to see three houses. Although clients normally ride with the agent to tour property, Ross insisted on driving separately. All three houses were supposed to be vacant but were not. Ross looked at the first two but not the third. The group returned to the first house where cleaners were working on the main floor. Ross, his son, and Moore went to the basement. As Ross and Jason began to discuss what could be heard between the basement ceiling and the main floor, they heard noise from the workers above. Ross quickly ended the tour, saying he was late for another appointment.

That other appointment was to see James Ruble. Earlier in the morning, Ross had seen a "For Lease" sign in a vacant store at a Tucson shopping center and called the listed real estate agency. Identifying himself as Michael Davis, Ross feigned interest in leasing space for a photographic design business. Ross's call was taken by Ruble, a real estate agent, who scheduled a viewing for 2:00 that afternoon.

At 2:00 p.m., Ross, armed with a nine millimeter handgun, met Ruble at the vacant store. Once inside, Ross attempted to take Ruble's wallet. During a struggle, Ross shot Ruble at close range in the head. He dragged the body behind a counter and shot Ruble again in the head. Ruble died from these wounds.

Ross left with Ruble's wallet and immediately used Ruble's credit and bank cards. He got a temporary driver's license under Ruble's name. During the next four days, Ross made cash withdrawals in Tucson and Casa Grande using Ruble's ATM card. In Casa Grande, he purchased a car by identifying himself as "James Ruble" and by showing Ruble's Visa card.

On April 14, 1990, police arrested Ross in Casa Grande. He claimed to be James Ruble and had Ruble's wallet with him. Ross was taken to the Casa Grande police station. After police gave him his Miranda warnings, Ross said he understood his rights, waived them, and agreed to talk. Detective Cox and then Sergeant Petropoulis questioned him. Ross lied about his identity, using the name Robert Burgess, and said that he had found the wallet in a garbage dumpster. Ultimately, however, he confessed that he had set up an appointment with Ruble and intended to steal his identification and money. Ross claimed that there was a struggle, that the first shot was accidental, and that the second shot was deliberate because he was scared.

At trial, Ross moved to suppress his confession. After an evidentiary hearing, the trial court denied the motion, finding "that when [the defendant] gave his statement to the detectives, the defendant knew what he was doing, that the statements were voluntary, and they were not the product of an overborne will resulting from police promises, threats or coercions." Tr., Jan. 30, 1991, at 3.

In addition to the confession, other physical evidence linked Ross to the murder. Bank photographs showed Ross and his son using Ruble's ATM card. Ross's fingerprints were at the murder scene. The weapon found in Ross's car was the same one that had fired the fatal bullets.

The jury unanimously found Ross guilty of premeditated murder. At sentencing, the court returned a special verdict finding no mitigating factors and two aggravating factors (murder for pecuniary gain and murder committed in an especially heinous or depraved manner). The court sentenced Ross to death for first degree murder and to life imprisonment for armed robbery.

II. ISSUES

We will address the following issues raised in Ross's brief:

A. Trial Issues

1. Did the trial court err by denying defendant's motions to suppress his confession?

2. Was Ross denied his right to effective assistance of counsel as a matter of law?

B. Sentencing Issues

1. Did the trial court err in finding the aggravating factor of heinousness or depravity?

2. Did the trial court err in finding that there were no mitigating factors or that those factors were not substantial enough to call for leniency?

C. Other Issues

Ross also makes the following claims of error, all of which are meritless and do not warrant separate discussion:

1. The state may not seek the death penalty because the police implied leniency during Ross's interrogation. No cases support this theory. Moreover, as we discuss infra at 602-604, 886 P.2d at 1358-1360 in connection with the voluntariness of the confession, there is no evidence that Petropoulis promised leniency.

2. The trial court was prejudiced by Ruble's family's comments and recommendations in the presentence victim impact report and during the sentencing hearing. Ross offered no proof of prejudice to support this contention; it therefore fails. State v. Hinchey, 165 Ariz. 432, 440, 799 P.2d 352, 360 (1990) (absent contrary proof, trial judge presumed to evaluate only relevant sentencing factors or to set aside the irrelevant, inflammatory, and emotional), cert. denied, 499 U.S. 963, 111 S.Ct. 1589, 113 L.Ed.2d 653 (1991).

3. This court should conduct a proportionality review of the death sentence, which Ross says is disproportionately severe. This court no longer conducts such reviews. State v. Salazar, 173 Ariz. 399, 417, 844 P.2d 566, 584 (1992) (proportionality reviews discontinued in death penalty cases), cert. denied, 509 U.S. 912, 113 S.Ct. 3017, 125 L.Ed.2d 707 (1993).

4. Execution by lethal gas constitutes cruel and unusual punishment. This argument is moot because Ross now has the option of execution by lethal intravenous injection. See A.R.S. § 13-704(B).

5. The death penalty is unconstitutional and violates international law because:

(a) Arizona's statute fails to narrow the class of persons eligible for the death penalty. We have rejected that argument. State v. Greenway, 170 Ariz. 155, 164, 823 P.2d 22, 31 (1991) ("Arizona's death penalty statute narrowly defines the class of death-eligible persons.").

(b) International standards make imposition of the death penalty for civilian crimes inappropriate. American law is to the contrary. See Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (death penalty not inherently cruel and unusual punishment); State v. Richmond, 136 Ariz. 312, 322, 666 P.2d 57, 67 (unnecessary to address claim that Arizona's death penalty violates international law), cert. denied, 464 U.S. 986, 104 S.Ct. 435, 78 L.Ed.2d 367 (1983).

III. ANALYSIS

A. Trial Issues

1. Voluntariness of the Confession

Ross contends that the police used interrogation and psychological tactics to overcome his will. He claims that the totality of circumstances shows his confession was coerced.

Because confessions are presumed to be involuntary, the state must prove a confession is voluntary and not the result of psychological or physical coercion. State v. Amaya-Ruiz, 166 Ariz. 152, 164, 800 P.2d 1260, 1272 (1990), cert. denied, 500 U.S. 929, 111 S.Ct. 2044, 114 L.Ed.2d 129 (1991). In evaluating voluntariness, the court must examine the totality of the circumstances surrounding a confession. A.R.S. § 13-3988(B); State v. LaGrand, 153 Ariz. 21, 26, 734 P.2d 563, 568, cert. denied, 484 U.S. 872, 108 S.Ct. 207, 98 L.Ed.2d 158 (1987). At the suppression hearing, the trial court evaluated the evidence, including the testimony of Detective Cox and Sergeant Petropoulis, and found that Ross's confession was voluntary. Absent clear and manifest error, we will not disturb the trial court's ruling. State v. Tapia, 159 Ariz. 284, 288, 767 P.2d 5, 9 (1988).

The interrogation environment does not suggest police intimidation or coercion. Upon arrest, the officers advised Ross of his Miranda rights. Ross, convicted nine times before, knowingly and willingly waived his rights. The police removed Ross's handcuffs before he entered the interrogation room and repeated his Miranda rights once inside. The interrogation lasted a reasonable time--one hour and thirty-five minutes. See State v. Stanley, 167 Ariz. 519, 524, 809 P.2d 944, 949 (one-and-a-half hour to two-hour interview not extraordinary), cert. denied, 502 U.S. 1014, 112 S.Ct. 660, 116 L.Ed.2d 751 (1991). Detective Cox even called for a twenty minute break after the first hour to get Ross a cigarette.

Ross argues that the discussion of his son prompted his confession. In evaluating this argument we look to whether the defendant agreed to talk after Miranda warnings, whether the defendant initiated the discussion, and whether the police dealt honestly with him. State v. Ferguson, 119 Ariz. 55, 60, 579 P.2d 559, 564 (1978). Police may discuss a relative's criminal liability if they have reasonable grounds to do so. Id.

Here, Ross agreed to talk after Miranda warnings. He was the first to mention that Jason was a relative, first claiming Jason was his nephew, then admitting Jason was his son. Moreover, after Ross referred to Jason, the police properly asked him about Jason's identity and whereabouts. Jason was pictured in the ATM photographs and was a possible suspect, or, at the very least, was someone the police might want to question....