State v. Rossi

• Decision Date: 24 September 1985
• Docket Number: No. 6326,6326
• Parties: STATE of Arizona, Appellee/Cross-Appellant, v. Richard Michael ROSSI, Appellant/Cross-Appellee.
• Court: Arizona Supreme Court

Page 371

706 P.2d 371

146 Ariz. 359

STATE of Arizona, Appellee/Cross-Appellant, v. Richard Michael ROSSI, Appellant/Cross-Appellee.

No. 6326.

Supreme Court of Arizona, In Banc.

Sept. 24, 1985.

Robert K. Corbin, Atty. Gen., William J. Schafer III, Chief Counsel, Crim. Div., Diane Ramsey, David Cole, Asst. Attys. Gen., Phoenix, for appellee/cross-appellant.

J. Douglas McVay, Phoenix, for appellant/cross-appellee.

GORDON, Vice Chief Justice.

After a jury trial, defendant, Richard Michael Rossi, was adjudged guilty of first degree murder, attempted first degree murder and first degree burglary, all dangerous and nonrepetitive felonies. The trial court sentenced defendant to death on the murder conviction, and terms of incarceration for the attempted first degree murder and first degree burglary convictions. This Court has jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. § 13-4031.

On the afternoon of August 29, 1983, defendant went to the house of Harold August to sell him a typewriter. August, age 66, bought, repaired and sold typewriters out of his home where he kept a large amount of cash. Earlier that day defendant had confided to his friend, Bill Nelson, that he was going to August's house on the pretext of selling August a typewriter but planned to kill him, take his money, and kill anybody who got in his way. After apparently working out a deal to sell August a typewriter, defendant followed August to his bedroom where August kept his money. Defendant hit August with a blackjack and then shot him twice in the chest. August fell against the bedroom wall and pleaded with defendant stating, "You have my money, you shot me, what more do you want?" Thereupon, defendant leveled the gun at August's head and fired a fatal shot into his mouth.

During this time, a next-door neighbor, Mrs. Nutter, heard voices and the sound of three gunshots coming from Mr. August's house. A good friend of the Augusts, she went to their house to investigate. In Augusts' driveway she noticed a bronze metallic car with the hatchback open and the motor running. Mrs. Nutter entered the Augusts' house and observed a stranger. She asked the man, "Where's Harold?" to which he responded, "In the back." As she turned to go down the hallway she was hit in the back of the head and fell to the floor. Defendant put the gun to Nutter's chest and fired twice. He assumed from her moaning that she would die and he left. However, Mrs. Nutter survived.

Defendant returned home where he had Nelson count the stolen money, and gave Nelson three spent bullets as "souvenirs" of the crimes. Later that day he gave his shirt to his live-in girl friend with instructions to check it for bloodstains and to throw the shirt away if it contained blood.

DEFENDANT'S REQUEST FOR A LIVE LINEUP

Defendant was initially arrested for the crimes herein on August 29, 1983. The next day in the hospital, Nutter was shown a photo lineup. She picked out defendant's photograph stating, "Boy, it sure looks like him." Seven months after this photo lineup and a few weeks before trial, defendant requested a live lineup. The trial judge denied defendant's request. Defendant now claims that the trial judge committed reversible error.

Defendant has no constitutional right to a physical lineup. State v. Meeker, 143 Ariz. 256, 693 P.2d 911 (1984). Photographic lineups are frequently used and commonly adopted as a means of identification. See State v. Taylor, 27 Ariz.App. 330, 554 P.2d 926 (1976). A request for a live lineup is left to the sound discretion of the trial court and absent an abuse of discretion, the trial court's ruling will not be disturbed on appeal. State v. Ferguson, 120 Ariz. 345, 586 P.2d 190 (1978).

We find no abuse of discretion. There is no indication in the record that the photo lineup procedure was suggestive. Defendant does not point to any features in the photo which differ from his likeness, and after reviewing the photo we do not see any aberrations or distortions in it. Additionally, the photographic lineup took place one day after the crime when the victim's memory was still fresh. This lineup was reliable. Id. at 348, 586 P.2d at 193 ("the law is primarily concerned that the identification process be reliable").

On the other hand, defendant's requested lineup would have been unreliable. Defendant's request for a lineup came seven months after the crime. At that time defendant's appearance had radically changed. Defendant had gained about sixty pounds, shaved off his moustache, and cut his hair and sideburns much shorter. His skin tones had also changed. Under these circumstances, we cannot see how the requested live lineup would have added to the reliability of the victim's identification. We find no error.

Even if the trial court erred in failing to allow defendant to be viewed in a live lineup, such error was harmless and did not prejudice defendant as the witness was not able to positively identify the defendant at trial. State v. McVay, 127 Ariz. 450, 622 P.2d 9 (1980) (unless there is a reasonable possibility that improperly admitted evidence contributed to conviction, reversal is not required). Additionally, the victim's degree of doubt was extensively brought out on cross-examination as well as direct examination. We find no prejudice.

LIMITATION OF CROSS-EXAMINATION

Defendant next contends that the trial court improperly limited his right to cross-examine the police officer who conducted the photo lineup when the trial judge sustained the objection to the following question.

"Q. Can you tell me why, after Mrs. Nutter was physically capable of doing so, why she was not asked to pick Mr. Rossi out of a physical lineup?

MR. LYNCH: Your honor, I'm going to object to that. There are a lot of reasons why.

THE COURT: Sustained."

In assessing defendant's right to cross-examine, the trial court has considerable discretion in determining the relevance and admissibility of the evidence sought. State v. Starks, 122 Ariz. 531, 596 P.2d 366 (1979). In order to find error in the trial court's restriction of cross-examination, this court must find that the trial court abused that discretion. State v. Baca, 102 Ariz. 83, 425 P.2d 108 (1967). Evidence is relevant if it has any tendency to prove a material fact in issue. Rule 401, Arizona Rules of Evidence, 17A A.R.S.; State v. Adamson, 136 Ariz. 250, 665 P.2d 972 (1983), cert. denied 464 U.S. 865, 104 S.Ct. 204, 78 L.Ed.2d 178 (1983). In this case defendant's question relating to a subsequent live lineup was not relevant. As noted above, defendant was not entitled to a physical lineup. State v. Ferguson, supra. Therefore, the reason that one was not performed is not material. Furthermore, defendant did not make a live lineup a contested issue because he did not timely request one. The physical lineup he did request came seven months after the photo lineup when defendant's appearance had changed so drastically that the live lineup would not have been relevant. ¹

INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant argues that trial counsel was ineffective during the sentencing stage of trial. Defendant argues that several facts and arguments should have been brought to the attention of the probation officer during the preparation of his presentence report and of the trial judge during sentencing. Specifically, defendant contends that trial counsel did not: (1) point out the paucity of evidence supporting the two aggravating factors: that defendant knowingly created a grave risk of death to another person, and that the offense was committed in an especially heinous, cruel and depraved manner, (2) point out defendant's clean record, (3) argue that the mitigating factors outweighed the aggravating circumstances, and (4) emphasize that the prosecutor conceded the "grave risk of death" aggravating factor did not exist.

In Arizona, to prove ineffectiveness of counsel the defendant must establish that counsel's representation was not reasonable considering all the circumstances, and that counsel's deficient performance prejudiced the defendant. State v. Nash, 143 Ariz. 392, 694 P.2d 222 (1985). The same standard is applicable to allegations of ineffective assistance of counsel at the sentencing stage. See State v. Roscoe, 145 Ariz. 212, 700 P.2d 1312 (1984). In this case we do not find that defense counsel's performance was deficient where the trial judge was fully apprised of the arguments in favor of mitigation.

Contrary to defendant's contention, defendant's minimal criminal record was noted twice in the presentence report and by counsel at the presentence hearing. The state expressly conceded that the "grave risk of death" aggravating factor did not exist. Defense counsel need not point out matters of which the judge is already apprised.

As to the mitigating factors, the defense attorney initially argued in his sentencing memorandum that two mitigating factors existed. Counsel obtained the appointment of two medical experts to diagnose and evaluate defendant's mental condition at the time of the crime. The doctors' reports, however, did not bolster the existence of the two mitigating factors. Thereafter, defense counsel at the presentence hearing argued for a sentence less than death based on defendant's "character, propensities and record," arguing that defendant had "no previous criminal record," that "he had excellent work habits," that any bad habits defendant had did not involve "any sort of violence, anger, hurt to anybody else," and that defendant did not repeat his conduct later when he had another opportunity. Counsel argued that defendant would from now on follow his nonviolent past conduct. We find this change in strategy by counsel reasonable in light of the paucity of alternatives. See, e.g., State v. McDaniel, 136 Ariz. 188, 665 P.2d 70 (1983) (when defendant is being sentenced for first degree murder, sentencer must consider as mitigating circumstances any aspect of defen...