State v. Rossi, CR-86-0023-AP

Citation154 Ariz. 245,741 P.2d 1223
Decision Date21 July 1987
Docket NumberNo. CR-86-0023-AP,CR-86-0023-AP
PartiesSTATE of Arizona, Appellee, v. Richard Michael ROSSI, Appellant.
CourtSupreme Court of Arizona

Robert K. Corbin, Atty. Gen., William J. Schafer III, Chief Counsel, Crim. Div., Diane M. Ramsey, Asst. Atty. Gen., Phoenix, for appellee.

J. Douglas McVay, Phoenix, for appellant.

GORDON, Chief Justice.

In State v. Rossi, 146 Ariz. 359, 706 P.2d 371 (1985), we affirmed appellant's convictions for first-degree burglary, attempted first-degree murder, and first-degree murder. We also affirmed appellant's sentences for the first two offenses but vacated appellant's death sentence on the first-degree murder charge and remanded for resentencing.

The same trial judge who had conducted the initial aggravation/mitigation hearing held a new aggravation/mitigation hearing on January 17, 1986. Following that hearing, the trial judge once again sentenced appellant to death on the murder charge. The trial judge ruled that the killing was motivated by pecuniary desires and was committed in an especially cruel, heinous and depraved manner. The trial judge found four mitigating circumstances, none of which warranted leniency: appellant admitted guilt and was remorseful; appellant had no prior felony convictions and had been a responsible and productive member of society; appellant had been a model prisoner; and interested persons recommended leniency and attested to appellant's good character. The trial judge also ruled that appellant did not prove by a preponderance of evidence that he could be rehabilitated during a life sentence or that cocaine abuse significantly impaired his capacity to appreciate the wrongfulness of the murder or to conform his conduct to the requirements of law. 1

We address the following two issues:

1. Whether a defendant in a capital case has a right to conduct voir dire of the trial judge to determine if he or she can be fair and impartial?

2. Whether the record supports the trial judge's conclusion that appellant failed to prove substantial impairment and probable rehabilitation as mitigation?

We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. §§ 13-4031, -4033.


On January 8, 1986, after our remand but prior to the second aggravation/mitigation hearing, appellant filed a MOTION TO ALLOW COUNSEL TO VOIR DIRE REGARDING SENTENCING. The motion stated in relevant part:

The purpose of voir dire would be to allow undersigned counsel to assess whether the Judge is free of any prejudice or bias related to the factual findings the Court must make as to aggravating and mitigating circumstances under the Arizona Death Penalty statute, A.R.S. § 13-703. The inquiry would be intended to determine whether the Court has prejudged the factual issues in this case or whether there are any other circumstances that exist that would warrant the Judge to be challenged for cause.

It is submitted that the inquiry requested here is particularly important because this Court has previously imposed the death penalty and under those circumstances, it is important to determine if this Court is approaching the resentencing with an open mind.

On appeal, appellant raises three additional concerns allegedly justifying voir dire of the trial judge. First, appellant was entitled to know if the trial judge had formed any predisposition or opinion concerning the abilities or credibility of Dr. George O'Connor, a Maricopa County jail psychiatrist who testified at the second aggravation/mitigation hearing and who had testified before the trial judge on previous occasions. Second, appellant was entitled to know how the trial judge would evaluate and weigh the testimony of Dr. George Nash, a neuropsychiatrist who testified during the second aggravation/mitigation hearing that he opposed the death penalty under any circumstances and that he was a recovering addict and alcoholic. Third, appellant was entitled to know something about the trial judge's opinion of Dr. Francis Enos, a psychologist whose report the trial judge relied heavily upon in concluding that appellant could not be rehabilitated.

The motion was denied. Without citing any case law, appellant contends that denial was improper because the right to question the trial judge about any possible bias, prejudice or predisposition he might have concerning any factual matter that might arise during the aggravation/mitigation hearing is implicit in the due process and fair trial guarantees of the federal and state constitutions.

"The right to a fair trial is a foundation stone upon which our present judicial system rests. Necessarily included in this right is the right to have the trial presided over by a judge who is completely impartial and free of bias or prejudice." State v. Neil, 102 Ariz. 110, 112, 425 P.2d 842, 844 (1967). "Bias and prejudice means a hostile feeling or spirit of ill-will, or undue friendship or favoritism, towards one of the litigants." In re Guardianship of Styer, 24 Ariz.App. 148, 151, 536 P.2d 717, 720 (1975). A trial judge is presumed to be free of bias and prejudice. State v. Perkins, 141 Ariz. 278, 286, 686 P.2d 1248, 1256 (1984). To rebut this presumption in a criminal case a party must prove by a preponderance of the evidence that the judge is biased or prejudiced and must file a motion alleging specific grounds of impartiality. Ariz.R.Crim.Pro., Rule 10.1. Appellant never filed a motion pursuant to Rule 10.1, nor in his motion to voir dire the trial judge does he ever allege that the trial judge acted improperly. 2 Appellant believes, however, that the trial judge may have been prejudiced or biased for numerous reasons. Without ever directly saying so, appellant seems to believe that the mere possibility of prejudice or bias provides him with a constitutional right to voir dire the trial judge.

We decline to hold that such a right exists for several reasons. First, we have not been cited to any case law, nor has our research revealed any authority, suggesting that such a right exists. Second, removal procedures of Rule 10.1 adequately safeguard a party's constitutional right to a fair trial before an impartial judge, and these procedures would be rendered meaningless and effectively circumvented if permission to question a judge's partiality rested not on concrete facts and specific allegations but on mere speculation, suspicion, apprehension, or imagination. And third, and perhaps most importantly, permitting voir dire of a trial judge on every occasion that the possibility of prejudice or bias could arise within the course of a criminal case would not only effectively emasculate the presumption of impartiality bestowed upon the judiciary but also subject the dignity, integrity, and orderly function of the judicial system to repeated frivolous attacks and unwarranted disrepute.

The right to voir dire a trial judge concerning possible bias or prejudice is not encompassed within the constitutional right to a fair trial before an impartial judge. Thus, the trial judge properly denied appellant's motion. We have nevertheless reviewed the record to ensure that appellant received a fair trial before an impartial judge. We conclude that he did.

The fact that the trial judge presided at both sentencing hearings is not prima facie evidence of bias or prejudice. See State v. Poland, 144 Ariz. 388, 395, 698 P.2d 183, 190 (1985); State v. Jeffers, 135 Ariz. 404, 427, 661 P.2d 1105, 1128 (1983); State v. Neil, 4 Ariz.App. 258, 262, 419 P.2d 388, 392 (1966), vacated on other grounds, 102 Ariz. 110, 425 P.2d 842 (1967); see also Schoonover v. State, 2 Kan.App.2d 481, 482, 582 P.2d 292, 295 (1978); State ex rel. Anaya v. Scarborough, 75 N.M. 702, 707, 410 P.2d 732, 737 (1966). Nor do we find in appellant's brief or elsewhere in the record any facts suggesting that appellant was denied a fair trial before an impartial judge.


We now determine whether appellant proved by the preponderance of evidence the existence of two mitigating circumstances: (1) appellant could be rehabilitated, and (2) appellant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired due to cocaine abuse. The trial court ruled that appellant did not prove the existence of either of these mitigating circumstances by the preponderance of the evidence.

A. Rehabilitation

After sentencing appellant to death, the trial judge said:

The defendant alleges as a mitigating circumstance that he is rehabilitatable. The Court finds that the defendant did not prove this factor by a preponderance of the evidence. The psychological evaluation report prepared by Dr. Enos for the previous hearing in summary indicated that the defendant needed to be a big shot as a means of impressing people, and that without a doubt he is a person of superior intelligence, that there were some signs of significant and seriously impacting personality disorders which are a mixture of underlining feelings of inadequacy and inferiority, remembering that the defendant planned and talked about the robbery several days before it occurred, that the defendant used Hydrashok bullets and after their use said the bullets did not make as big a hole as they were supposed to. Considering also that the defendant bragged to his friends about his act and gave three spent bullets to a friend as a souvenir.

When the defendant was surprised by the victim's neighbor, Mrs. Nutter, he shot her twice after he had knocked her down, and later wanted her dead so she could not testify against him.

The defendant later gave his shirt to his girlfriend to check for blood and throw it away if it contained blood.

Because of these factors and the belated expression of remorse and admission of the crime, the Court finds that the defendant is not rehabilitatable, and that this is not a mitigating factor.

Transcript dated January 22, 1986, at 11-13.

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