State v. Runningeagle
| Citation | 859 P.2d 169,176 Ariz. 59 |
| Decision Date | 20 April 1993 |
| Docket Number | CR-89-0048-AP,Nos. CR-89-0046-AP,s. CR-89-0046-AP |
| Parties | STATE of Arizona, Appellee/Cross-Appellant, v. Sean Bernard RUNNINGEAGLE, Appellant/Cross-Appellee. STATE of Arizona, Appellee/Cross-Appellant, v. Corey Preston TILDEN, Appellant/Cross-Appellee. /PC, |
| Court | Supreme Court of Arizona |
Sean Runningeagle was found guilty of two counts of first degree murder, two counts of theft, and one count each of first degree burglary, second degree burglary, and third degree burglary. He was sentenced to death on the murder convictions and to prison terms on the non-capital convictions. Appeal to this court is automatic under Rules 26.15 and 31.2(b), Ariz.R.Crim.P., and direct under A.R.S. § 13-4031. We granted review of the denial of his petition for post-conviction relief, and consolidated it with the appeal.
Corey Tilden was tried with Runningeagle and convicted of the same charges except third degree burglary. He was sentenced to life terms on the murder charges and to additional prison terms on the remaining counts, to be served consecutively. Tilden appeals pursuant to Rules 31.2(a) and 31.3, Ariz.R.Crim.P., and A.R.S. § 13-4033. The state cross-appeals. Because we affirm all convictions and sentences, the cross-appeal is moot.
In the early morning of December 6, 1987, Runningeagle, Tilden, and their two friends Orva and Milford Antone, were driving around Phoenix. Runningeagle wanted parts for his car, so the foursome stopped at the Davis house, which had a car parked outside. Runningeagle, Tilden and Orva got out of the car, while Milford remained passed out drunk in the back seat. Runningeagle used his large hunting knife to remove two carburetors from the Davis car. Orva put them and an air scoop in the trunk of Runningeagle's car. Tilden and Runningeagle also stole a floor jack and tool box. Orva took a bicycle from the open garage.
Herbert and Jacqueline Williams, an elderly couple, lived next door to the Davises. Mr. Williams came out of his house and told the young men to leave or he would call the police. Orva returned to the car, but Runningeagle and Tilden approached Mr. Williams. Runningeagle concealed his knife by his side. Tilden carried a large, black flashlight. Runningeagle then began to tease and scare Mr. Williams with the knife. Mr. Williams retreated and told Runningeagle to put the knife away. Mrs. Williams then came out of the house and yelled at them. Tilden confronted Mrs. Williams, argued with her, and then hit her on the side of the head with the flashlight. Mr. Williams told them to leave his wife alone, and helped her back into the house. Runningeagle broke through the Williams' door with a tire iron, and he and Tilden barged in.
The noise awakened a neighbor, who heard Mrs. Williams crying and the words "bring him in" spoken by a tall, young man he saw standing in the Williams carport. The neighbor called "911," but by the time the police arrived, Mr. and Mrs. Williams were dead. Mr. Williams suffered several head injuries and five stab wounds, three of which were fatal. Mrs. Williams also suffered several head injuries, one of which fractured her skull and was possibly fatal, in addition to four stab wounds, three of which were fatal.
The police searched the Williams home. The drawer in which Mrs. Williams stored her jewelry was open and some jewelry was missing. They found an empty purse, blood drops and two bloody shoe print patterns. They discovered Runningeagle's palm print on the clothes dryer next to the bodies.
Runningeagle discussed the crimes on several occasions before his arrest. He told his girlfriend that he had been in a fight with two people and had hit them "full-force." He showed her his car trunk full of the stolen property. He showed the hood scoop and carburetors to another friend. Tilden, too, spoke about the crimes and informed Runningeagle that an account of the burglary was on the radio and that "they got there an hour after we left."
When the defendants were arrested, the police found, among other things, the Davis air scoop with Runningeagle's prints on it, two carburetors, the tool box, Mrs. Williams' wallet and college pin, a large black flashlight with Tilden's prints on it, and the Davis bicycle with Runningeagle's prints on the wheel rim. A Phoenix Police Department criminalist matched Runningeagle's shoes with the bloody shoe prints found at the Williams house, and also found that an inked print of Tilden's shoes made a pattern similar to other shoe prints at the house.
Runningeagle, Tilden, and Orva Antone were indicted on two counts of first degree murder, and one count each of first degree burglary of a residence, second degree burglary of a residence, third degree burglary of a car, theft of property valued between $500 and $1000, and theft of property valued between $250 and $500. Orva Antone pleaded guilty to burglary and testified for the state at the joint trial.
Runningeagle raises the following issues:
1) Whether he was denied effective assistance of counsel on the grounds that his trial counsel failed to join in Tilden's motion to sever and made a deficient closing argument.
2) Whether the trial court erred by denying his motion for mistrial based upon the prosecutor's opening statement.
3) Whether the trial court failed to make an adequate finding, pursuant to Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), that Runningeagle actually killed, attempted to kill, or intended to kill either victim.
4) Whether the aggravating factor of especially cruel, heinous, or depraved under A.R.S. § 13-703(F)(6), was unconstitutionally vague as applied.
5) Whether the aggravating factors of pecuniary gain and especially cruel, heinous, or depraved were inapplicable because of lack of proof that Runningeagle killed either victim.
6) Whether the trial court erred by finding:
A. That Runningeagle committed these murders in the expectation of pecuniary gain under A.R.S. § 13-703(F)(5).
B. That Runningeagle committed these murders in an especially cruel, heinous, or depraved manner under A.R.S. § 13-703(F)(6).
7) Whether the trial court erred in concluding that the mitigating factors failed to require leniency.
8) Whether the trial court erred in imposing a consecutive sentence for burglary.
Tilden raises the following issues:
1) Whether the trial court erred by refusing to give his requested instruction on manslaughter as a lesser included offense.
2) Whether the trial court erred by refusing to grant his motion to sever his case from Runningeagle's.
3) Whether the trial court erred by refusing to grant his motion for mistrial based upon the prosecutor's opening statement. 1
4) Whether the trial court erred by allowing expert shoe print comparison testimony.
Runningeagle contends that he was denied effective assistance of counsel because his lawyer failed to join in Tilden's motion to sever the trial, and because his lawyer's closing argument was deficient. Runningeagle's Rule 32 petition on this issue was dismissed without a hearing. The defendant is entitled to an evidentiary hearing only when he presents a colorable claim--one that, if the allegations are true, might have changed the outcome. State v. Watton, 164 Ariz. 323, 328, 793 P.2d 80, 85 (1990). There is no colorable claim here.
The defendant must show that counsel's performance was deficient, and that the deficient performance prejudiced his defense. State v. Walton, 159 Ariz. 571, 591-92, 769 P.2d 1017, 1037-38 (1989), aff'd 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990).
Runningeagle argues that because Tilden's defense was adverse to his own, his lawyer had no legitimate tactical reason for not moving for severance. But, as discussed more fully below in connection with Tilden, Runningeagle's and Tilden's defenses were not antagonistic to the point of being mutually exclusive. Because severance was not required, counsel's failure to take a position on the motion to sever was not deficient.
Runningeagle also argues that his trial counsel failed to argue an affirmative defense, but does not tell us what affirmative defense should have been presented. Runningeagle argues that defense counsel conceded that the state had proven virtually every element of the case. But the record does not support the argument. Runningeagle's lawyer merely argued in alternative hypotheticals. His argument was not deficient.
Because Runningeagle failed to show that counsel's conduct was deficient, the trial court properly dismissed his petition for post-conviction relief.
In his opening statement, the prosecutor described the setting of the murders as follows:
[The Williams] went out to the kitchen area, started a pot of coffee, turned the radio on, sat down at the kitchen table. What happened in the next 10, 15, 20 minutes can only be described as unspeakable horror. It was evil. What happened in that next 10, 15, 20 minutes ended everything for Jackie and Herbert Williams. And the cause and the reason that it ended is right here in the courtroom. The evil is among us.
Reporter's Transcript of June 28, 1988, at 18. The trial court sustained a defense objection, but denied a mistrial. Runningeagle argues that the statements were an appeal to passion and prejudice, entitling him to a new trial.
Although the prosecutor's use of the words "horror" and "evil" was argument and, thus,...
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