State v. Salazar
| Decision Date | 17 December 1992 |
| Docket Number | No. CR-88-0135-AP,CR-88-0135-AP |
| Citation | 844 P.2d 566,173 Ariz. 399 |
| Parties | STATE of Arizona, Appellee, v. Alfonso Raymond SALAZAR, Appellant. /PC. |
| Court | Arizona Supreme Court |
Defendant, Alfonso Raymond Salazar, was convicted by a jury of first degree murder, kidnapping, and first degree burglary. He was sentenced to death for the murder and to concurrent terms of imprisonment for the burglary and kidnapping. Appeal of the murder conviction is automatic; we accepted late appeals of the other convictions. Pending appeal, defendant filed a Rule 32 petition for post-conviction relief based on alleged ineffective assistance of counsel at trial and sentencing. We stayed the appeal pending resolution of the Rule 32 proceeding. After an extensive evidentiary hearing, the trial court denied Rule 32 relief. Defendant's petition to review that ruling was consolidated with the appeal, and we treat the consolidated matters as a single appeal. We have jurisdiction pursuant to Ariz.Const. art. 6, § 5(3) and A.R.S. §§ 13-4031, -4033.
The victim in this murder case is a fragile, 83-year-old woman, 5 feet tall, 89 pounds, who wore a patch over a sightless eye and lived alone. On the night of July 25, 1986, she was murdered in her home by beating and strangulation. The murderers gained forced entry to her home by prying metal security bars from a window.
On the day of the murder, defendant Salazar earned some money doing odd jobs. He and his co-defendant, Michael Wayne Davis, then used the money to buy tequila and gin which they consumed during the course of the day. Around midnight, they attended a party at the home of James Teran, who provided them with some beer. On their way back to Davis' house, where they both lived, they broke into the victim's home by prying wrought iron bars from a window. Later that same evening, Davis' aunt, Maria Snyder, noticed that defendant, who was not wearing a shirt, had scratch marks on his chest. The day after the murder, concerned relatives of the victim asked police to check on her. The police found her body on top of an overturned table. Her TV set was still blaring. She had been severely beaten and had also been strangled with a telephone cord. Palm prints, fingerprints and footprints were found in and around the house and on the wrought iron bars that had been pried from the window.
Approximately 2 months later, defendant was arrested. While his story was to change at trial, he initially denied ever being in the victim's house. At trial, defendant claimed that he and Davis entered the victim's home on a whim, out of curiosity, and that they believed the home was unoccupied. After Davis pried the metal bars from the window and they entered, defendant said he used a pocket lighter to guide himself through the home which, he said, was dusty, full of junk and completely silent. While "looking" in a file drawer, something that he thought was a ghost touched his arm and he fled the house in terror. After that, he said, Davis caught up with him outside and admitted that he had just killed someone in the house. Though defendant claimed not to have believed Davis at the time, he nevertheless removed and discarded his shoes at that point because he knew that his footprints were all over the victim's home. He then fled barefoot across desert terrain. The following day, he said he moved out of the Davis household after learning from TV news that there really had been a murder.
The state's version of defendant's role the night of the murder was considerably different than defendant's and was based, in large part, on physical evidence. A fingerprint examiner established that defendant's prints were found on the window grating that had been pried loose, on a telephone book inside the point-of-entry window, and on three file cabinets in the murder room. An identification technician testified concerning the bloody handprints found on one of the three file cabinets.
An expert tracker testified that zig-zag pattern shoeprints were found both under the body and partially on the body. These prints were made by a Tiger brand running shoe, which defendant admitted owning. Because the shoe prints were both under and on top of the body, they show that the shoe wearer was present both before and after the murder.
The medical examiner established that blood spatter patterns showed that the victim was beaten while on her bed and that she was still alive when she was dragged to the floor. Ultimately, she died atop an overturned table. The victim had defensive wounds on her arms and hands, and was beaten so severely that her nose was broken. She was strangled so fiercely that her Adam's apple was crushed.
The jury, obviously rejecting defendant's testimony, found him guilty. At the sentencing hearing, the trial court found that the murder was committed in an especially cruel, heinous or depraved manner within the meaning of A.R.S. § 13-703(F)(6). See Appendix at 420-421, 844 P.2d at 587-588. Although the state urged that the murder was also committed for pecuniary gain within the meaning of A.R.S. § 13-703(F)(5), the trial court did not so find. Id. In addition to the statutory mitigating circumstances enumerated in A.R.S. § 13-703(G), the trial court considered 4 additional potentially mitigating factors, but found them insufficient to support a reduction of the death penalty to life imprisonment. The additional non-statutory mitigating factors considered were: (1) lack of a prior felony conviction; (2) alcohol and substance use prior to the break-in; (3) jury instructions on felony murder; and (4) whether defendant personally killed the victim. On the last point, the court found that defendant: was a major participant in the felony committed, and that his involvement led to either the actual participation in the strangulation or the other violence perpetrated on the victim, or indicated reckless indifference to human life by the defendant's actions, when in his presence the victim was being murdered. Id. at 420-421, 844 P.2d at 587-588.
Based on its findings, the trial court sentenced defendant to death for the murder and to terms of imprisonment for robbery and burglary. The appeal and the Rule 32 petition followed.
The following issues are presented:
1. Whether the trial court erred in permitting witness Victoria Bode, a criminalist, to testify regarding blood stains found at the murder scene.
2. Whether the trial court erred in failing to grant defendant's motion for change of venue.
3. Whether the trial court erred in admitting Exhibit 16, a photograph of the victim.
4. Whether the trial court erred in allowing Detective Lowe's footprint comparison testimony.
5. Whether the trial court erred in precluding expert testimony on the effects of intoxication.
6. Whether the jury was properly instructed.
7. Whether there was a proper unanimous verdict on the murder charge.
8. Whether the trial court erred in "death-qualifying" potential jurors.
9. Whether the Arizona death penalty is constitutional and was properly applied to defendant.
10. Whether the trial court erred in denying defendant's petition for post-conviction relief, which was based on grounds of ineffective assistance of counsel.
11. Whether this court should discontinue its practice of conducting proportionality reviews in death penalty cases.
Victoria Bode is a criminalist who testified that red smears on the side of a filing cabinet were made by human blood. This was one of the filing cabinets on which the defendant's fingerprints had been found. Defendant contends her testimony should have been excluded on the grounds that she was a non-disclosed witness.
On any evidentiary matter, the trial court has considerable discretion, Burgbacher v. Mellor, 112 Ariz. 481, 483, 543 P.2d 1110, 1112 (1975), which will not be disturbed absent a clear abuse. State v. Amaya-Ruiz, 166 Ariz. 152, 167, 800 P.2d 1260, 1275 (1990), cert. denied, 500 U.S. 929, 111 S.Ct. 2044, 114 L.Ed.2d 129 (1991). In State v. Birdsall, 23 Ariz.App. 454, 533 P.2d 1191 (1975), the court held that, absent a showing of prejudice, the trial court erred in excluding testimony of a state's witness solely because the witness' name was not on the witness list, when the witness' participation was otherwise disclosed to the defense.
Defendant argues that failure of the state to list Bode as a witness on the witness list itself prejudiced him because Bode's testimony undercut his claim that he never was on the side of the room where the murder occurred. To determine prejudice, the totality of circumstances should be considered. Long before trial, when counsel for both sides were reviewing potential evidence, defense counsel noticed a smear on the filing cabinet in one of the photographs. He asked the state to test it. The state did have Bode test it and gave defense counsel a copy of her report. Apparently, he later overlooked it in his later pretrial preparation. However, repeated references to Bode being called as a witness were made during proceedings in open court, all with no demurral from defense counsel. For example, the state specifically asked that Bode's name be added to the list of witnesses to be identified for the jury. The next trial day, Bode's name was read as part of the court's effort to determine if any of the prospective jurors knew any of the witnesses who might be called. The state referred to the smear on the filing cabinet, the one to which Bode later testified, in its opening statement.
When defense counsel first objected to Bode's testimony, he overlooked the fact that he had her report in...
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