State v. Schaaf

• Court: Arizona Supreme Court
• Writing for the Court: GORDON
• Citation: State v. Schaaf, 169 Ariz. 323, 819 P.2d 909 (Ariz. 1991)
• Decision Date: 08 October 1991
• Docket Number: No. CR-89-0346-AP,CR-89-0346-AP
• Parties: STATE of Arizona, Appellee, v. Steven Richard SCHAAF, Appellant.

Page 909

819 P.2d 909

169 Ariz. 323

STATE of Arizona, Appellee, v. Steven Richard SCHAAF, Appellant.

No. CR-89-0346-AP.

Supreme Court of Arizona, In Banc.

Oct. 8, 1991.

As Corrected Oct. 16, 1991.

[169 Ariz. 325] Grant Woods, Atty. Gen., Crane McClennen, Asst. Atty. Gen., Phoenix, Bruce M. Ferg, Asst. Atty. Gen., Tucson, for appellee.

John C. Williams, Prescott, for appellant.

OPINION

GORDON, Chief Justice.

Steven Richard Schaaf (defendant) appeals from his conviction and death sentence for one count of first degree murder. We have jurisdiction of this automatic appeal pursuant to Ariz. Const. art. 6, § 5(3), and A.R.S. §§ 13-4031, -4033, and -4035. We affirm the conviction but remand for resentencing.

ISSUES

On appeal, defendant raises the following issues: (1) Whether defendant's rights to a speedy trial were violated; (2) Whether defendant was deprived of his right to counsel or self-representation; (3) Whether the trial court erred in death-qualifying the jury; (4) Whether the trial court erred when it allowed the state to call a defense expert witness as its own witness; (5) Whether the trial judge improperly commented on defendant's failure to testify; (6) Whether the trial court sentenced defendant on a count of which he had been acquitted and failed to sentence him on a count for which he had been convicted; (7) Whether the trial court erred when it refused to continue the sentencing hearing to permit the Arizona Capital Representation Project to present mitigation evidence; (8) Whether the trial court erred in not according greater weight to the evidence offered as mitigation; (9) Whether the trial court erred in finding an aggravating factor of a prior violent crime conviction when defendant was convicted of a non-violent crime under Nevada law; and (10) Whether defendant is entitled to a resentencing hearing if the trial court erred in finding that defendant's prior convictions constitute an aggravating factor. We have consolidated several of defendant's issues and have rearranged them in chronological order according to the proceedings below.

FACTS

On the evening of June 3, 1986, Dale Douin (Dale) and Gerri Clark (Gerri) travelled west on Interstate 10 from Tucson toward Phoenix. After experiencing trouble with their truck, they pulled into the Sacaton rest area to check the oil. While there, defendant approached them and offered assistance. Dale gave defendant ten dollars to purchase some oil for the truck. Defendant left, returned a short while later, and stated he could not find an open service station.

Defendant and Dale then left in defendant's truck in a second attempt to locate an open station. Gerri remained at the rest area and fell asleep in the couple's truck. Approximately one hour later defendant returned to the rest area and told Gerri that Dale was waiting at a gas station and wanted defendant to take her there. Gerri agreed and got into defendant's truck.

While travelling west on the interstate, defendant's truck began overheating. When he stopped to fill the radiator with water, defendant produced a gun and accosted Gerri. He bound her wrists and ankles with wire and forced her to lie on the truck's floor board. Defendant then drew a knife and, while driving toward Phoenix, forced her to perform fellatio on him.

After reaching Phoenix, defendant exited the interstate and pulled into a service station to add more water to his truck. While defendant went to fill his water jugs, Gerri, still bound with wire, hopped out of the truck and escaped to safety. Service station attendant Jay Lambert approached defendant, but defendant pointed a gun at him and drove away.

Later that morning, Dale's body was discovered in the desert near Interstate 10. He had been shot once in the back of the head with a 45-caliber automatic weapon. His wallet, containing approximately $200, was missing.

On September 8, 1986, Las Vegas authorities notified the Maricopa County Sheriff's Office that a man matching the assailant's description was being held in that city. Two days later, Gerri identified the man being held as the person who had assaulted her. Defendant's fingerprints matched those found on Dale's vehicle and on the water jugs left behind at the service station.

Defendant was indicted on the following charges:

Count I Kidnapping of Dale

Count II Armed robbery of Dale

Count III First degree murder of Dale

(either by premeditation or by felony-murder)

Count IV Kidnapping of Gerri

Count V Armed robbery of Gerri

Count VI Aggravated assault of Gerri

Count VII Sexual assault of Gerri

Count VIII Aggravated assault of Jay Lambert

The State alleged that defendant had prior convictions, that he committed the offenses while on probation from Florida, and that the offenses were of a dangerous nature.

After the State rested, the trial court granted defendant's motion for directed verdicts of acquittal on Counts I and II, as well as on the felony murder portion of Count III. The jury acquitted defendant of the remaining armed robbery charge, but convicted him on all the other charges and found them to be of a dangerous nature. Defendant admitted prior convictions on two charges of attempted murder using a deadly weapon.

At the aggravation hearing, the trial court found that the State had proved the existence of two statutory aggravating circumstances: (1) conviction of another crime for which death or a life term was imposable, A.R.S. § 13-703(F)(1); and (2) prior convictions of two felonies involving the use or threat of violence, A.R.S. § 13-703(F)(2). The court also found that defendant had been on probation when he committed the instant offenses. At the mitigation hearing, the court concluded that the defendant had not proved any of the statutory mitigating circumstances and that none of the other mitigation evidence offered was sufficiently substantial to call for leniency.

The trial court sentenced defendant to death for the murder and to consecutive life terms for the remaining convictions. It also ordered him to pay $8000 in restitution and $500 to the Victim Compensation Fund. The court advised defendant that an automatic appeal of the death sentence would be filed, but that he would have to file a timely notice of appeal with regard to the other counts. Defendant also received a written explanation of his appeal rights. The record contains no notice of appeal on the other convictions. Therefore, our review of this case is limited to the evidence supporting the conviction and death sentence for the first degree murder.

DISCUSSION

CONVICTION ISSUES

RIGHT TO A SPEEDY TRIAL

Defendant contends that the trial court violated his right to a speedy trial under the sixth amendment to the United States Constitution, article 2, § 24 of the Arizona Constitution, rule 8.3 of the Arizona Rules of Criminal Procedure, and the Interstate Agreement on Detainers (IAD). Defendant bases his claim on the trial court allowing his first attorney to withdraw. He argues that the court erred when it excluded the six days that defendant was without counsel after his first attorney, Greg Martin, withdrew. If the court had not excluded those days, defendant claims, the time limit for a speedy trial would have been violated by four days.

a. Constitutional right to a speedy trial

Defendant failed to raise in the trial court either federal or state constitutional claims that his right to a speedy trial was violated. Because he did not raise these claims in the trial court, they are waived absent fundamental error. See, e.g., State v. Lavers, 814 P.2d 333, 341-42 (1991); State v. Thomas, 130 Ariz. 432, 435, 636 P.2d 1214, 1217 (1981). "Before we may engage in a fundamental error analysis, however, we must first find that the trial court committed some error." Lavers, 814 P.2d at 341-42 (citing Thomas, 130 Ariz. at 436, 636 P.2d at 1218; State v. King, 158 Ariz. 419, 424, 763 P.2d 239, 244 (1988)). For the reasons stated below, we find no error.

A criminal defendant's right to a speedy trial is protected by article 2, § 24 of the Arizona Constitution, and the sixth amendment to the United States Constitution. Generally, the right to a speedy trial is waived unless asserted promptly. State v. Adair, 106 Ariz. 58, 60, 470 P.2d 671, 673 (1970). The speedy trial provisions of the Arizona Constitution and the United States Constitution do not provide any time limit within which a trial must be held. They simply state that criminal defendants have the right to a speedy and public trial. U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial"); Ariz. Const. art. 2, § 24 ("In criminal prosecutions, the accused shall have ... a speedy public trial").

The standards used under the federal constitution to determine whether a delay is sufficient to reverse a conviction are: "1) length of the delay, 2) reason for the delay, 3) defendant's assertion of the right, and 4) prejudice caused the defendant." State v. Zuck, 134 Ariz. 509, 514-15, 658 P.2d 162, 167-68 (1982) (citing Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)). The least important factor is the length of the delay and the most important, the prejudicial effect. Id.; State v. Leslie, 147 Ariz. 38, 44, 708 P.2d 719, 725 (1985); State v. Parker, 116 Ariz. 3, 8, 567 P.2d 319, 324 (1977). We find none of the factors sufficient to reverse defendant's conviction.

First, defendant complains that had the court not excluded the six days, the trial date violated the rule 8 time limit by four days. If defendant were correct, and the six days should not have been excluded, we still would not find a four day delay to be prejudicial. There was no showing that attorney Martin actually would have been prepared to try the case on October 19. Second, the reason for the delay was that the court found that extraordinary circumstances existed because defendant's attorney, Martin, had been appointed...