State v. Schurz

Decision Date15 April 1993
Docket NumberCR-92-0109-PC,Nos. CR-90-0283-A,s. CR-90-0283-A
Citation176 Ariz. 46,859 P.2d 156
PartiesSTATE of Arizona, Appellee, v. Eldon Michael SCHURZ, Appellant.
CourtArizona Supreme Court

MARTONE, Justice.

Schurz was found guilty of murder in the first degree and attempted aggravated robbery, and sentenced to death. 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 automatic appeal. We now affirm his convictions and sentences.


The evidence presented at trial, viewed in the light most favorable to sustaining the verdicts, establishes the following facts.

On the night of December 1, 1989, Marcella Bonito, Ronald Yazzie, Larry Figueroa, and an unidentified white male, were drinking beer in a stairwell at the back of a Phoenix motel. Defendant Eldon Schurz, Patrick Allison and Julie Moore came by and asked for some beer. After they were refused, Schurz grabbed the beer. Bonito tried to get it back, but gave up after Schurz threatened her. Schurz and his companions left and drank the beer, after which Schurz stated that the group at the motel must have more beer or money and suggested that they go back and take it.

Meanwhile, Jonathan Bahe, the victim, approached the first group. Having run out of gas, he was carrying a plastic jug of gasoline to his car. Bonito told him about the earlier robbery of their beer and complained that no one had done anything to prevent it. Bahe stated that, had he been there, he would have done something about it. Schurz, Allison and Moore returned. Schurz apparently overheard Bahe's statement and argued with him. When Schurz began pushing and punching Bahe, Bonito and Figueroa ran up the stairs to wake someone to call the police. Yazzie and the white male left.

Schurz, Bahe, and Allison remained. Moore was some distance away. Bahe was on the ground and, in an attempt to get away, crawled under a chain-link fence into a small enclosed rectangular space between a stairwell and a brick wall. Schurz picked up the plastic jug, smelled its contents, and then splashed gasoline on Bahe. Using a lighter, Schurz ignited a small puddle of gasoline. When the flames failed to spread to Bahe, he kicked the burning puddle toward him. Bahe went up in flames. After Schurz and Allison fled, Bahe managed to crawl under the fence and out of the enclosed space. Police and fire fighters arrived and extinguished the fire. Schurz later said to Moore, "He wouldn't give me the money or the beer, so I burned him."

Bahe was conscious on the way to the hospital. He was severely burned over 90 to 100 percent of his body and was moaning and shaking in pain. Much of his body was completely charred. He was unrecognizable. Even his race was unclear. The burning had caused the long muscles in his limbs to shorten so that his arms and legs were rigidly flexed and could not be straightened. He was given morphine to control the pain, but there was little else that could be done.

Bahe lived for approximately four and a half hours and, remarkably, was conscious enough to respond to questions from the police. Because of the extremely damaged state of his mouth and tongue--which were charred--his answers were nearly impossible to understand.

Approximately half an hour after the burning, Schurz and his companions were picked up by an unidentified man who wanted to buy some cocaine. Schurz claimed to know where to get some, and after exacting money from the man, directed him to a housing project where Schurz got out of the car briefly but returned without any cocaine. Schurz then said that he was robbing the man and held a lighter flame to his neck. The driver put up no resistance and Schurz, Allison, and Moore fled.

Schurz and Allison were arrested a few hours later. Both were charged with first degree murder and attempted aggravated robbery, but Allison pled guilty to the latter charge in return for testifying against Schurz. Allison was placed on probation. The evidence against Schurz consisted primarily of the testimony of Bonito, Yazzie, and Allison, who was the only other person present during the burning. The defense presented no evidence. Schurz's principal theory was that Allison killed Bahe. He also argued that his intoxication made it impossible for him to form the intent required for the offenses.

Schurz was convicted of first degree murder, on both a premeditation and a felony murder theory, and attempted aggravated robbery. 1 He was sentenced to death for murder and to the maximum twelve year prison term for the attempted aggravated robbery with two prior convictions.


Schurz has presented the following issues on appeal and in his petition for review of the Rule 32 proceeding:

A. Trial Issues

1. Did the trial court err by admitting evidence of the robbery that occurred after the murder?
2. Did the trial court err by denying defendant's motion for a directed verdict of acquittal on the attempted aggravated robbery and felony murder charges?
3. Did the trial court err by denying defendant's request for further mental examinations and testing?
4. Did the trial court err by failing to instruct the jury that it could consider evidence of defendant's intoxication in determining whether defendant had the requisite mental state for premeditated murder?

B. Sentencing Issues

1. Did the trial court err by failing to find, as a mitigating circumstance, that defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired?

2. Did the trial court err by finding that the mitigating circumstances were not sufficient to call for leniency in light of the one aggravating circumstance?

C. Post-Conviction Relief Issues

1. Was defendant denied effective assistance of counsel?

A. Trial Issues
1. Evidence of the Robbery

Schurz claims that the trial court erred by allowing the prosecution to present evidence of the robbery of the unidentified man that occurred after the murder. He argues that this evidence should have been excluded under Rule 404(b), Ariz.R.Evid.

Under Rule 404(b), evidence of other crimes, wrongs or acts is not admissible to prove that behavior conforms to character. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. In this case, the robbery, which involved a threatened burning, tended to establish identity as well as a motive for defendant's earlier actions. It also tended to rebut the defense theory that defendant was too inebriated to know what he was doing.

Relying on State v. Marahrens, 114 Ariz. 304, 307, 560 P.2d 1211, 1214 (1977), Schurz also argues that before evidence is admissible under Rule 404(b), the evidence of the other crime must be substantial enough to take the case to the jury. He argues that Allison's testimony about the robbery was insufficient to meet this additional hurdle.

Because the evidence here was sufficient under any standard, a majority of the court chooses not to reach the additional hurdle argument. 2 Allison's testimony was more than sufficient for the jury to find that a robbery took place and that defendant committed it.

Defendant also argues that even if otherwise admissible, the subsequent robbery evidence should have been excluded under Rule 403, Ariz.R.Evid. Although relevant, evidence may be excluded under Rule 403 if its probative value is substantially outweighed by the danger of unfair prejudice. Unfair prejudice "means an undue tendency to suggest decision on an improper basis," Fed.R.Evid. 403, Advisory Committee Note, such as emotion, sympathy or horror.

But not all harmful evidence is unfairly prejudicial. After all, evidence which is relevant and material will generally be adverse to the opponent. The use of the word "prejudicial" for this class of evidence, while common, is inexact. "Prejudice," as used in this way, is not the basis for exclusion under Rule 403. Dollar v. Long Mfg. Co., 561 F.2d 613, 618 (5th Cir.1977), cert. denied, 435 U.S. 996, 98 S.Ct. 1648, 56 L.Ed.2d 85 (1978); Borden, Inc. v. Florida East Coast Ry. Co., 772 F.2d 750, 756 (11th Cir.1985); United States v. Monahan, 633 F.2d 984, 985 (1st Cir.1980); Carter v. Hewitt, 617 F.2d 961, 972 (3d Cir.1980). See Thomas F. Green, Jr., Relevancy and Its Limits, 1969 Ariz.St.L.J. 533, 544; Andrew K. Dolan, Rule 403: The Prejudice Rule in Evidence, 49 S.Cal.L.Rev. 220, 238 (1976); and, McCormick on Evidence 780 (4th ed. 1992).

Here, the evidence of the subsequent robbery was not unfairly prejudicial. It was adversely probative in the sense that all good relevant evidence is. It tended to show Schurz was the person who attempted to rob and burned Bahe. Within minutes, he robbed and threatened to burn again. Adverse, yes; unfairly prejudicial, no. And because identity was an issue, it can hardly be said that the probative value of this evidence was substantially outweighed by the danger of unfair prejudice. Once the defendant attempted to shift responsibility to Allison, the evidence had enough probative value to withstand any Rule 403 weighing process. 3

2. Motion for Directed Verdict

Defendant claims that the trial court erred when it denied his motion for a directed verdict of acquittal on the attempted aggravated robbery and felony murder charges pursuant to Rule 20, Ariz.R.Crim.P. To withstand such a motion, the state must produce enough evidence that...

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