State v. Scott

Decision Date21 December 1993
Docket NumberNo. CR-91-0124-AP,CR-91-0124-AP
Citation177 Ariz. 131,865 P.2d 792
PartiesSTATE of Arizona, Appellee, v. Roger Mark SCOTT, Appellant.
CourtArizona Supreme Court

MOELLER, Vice Chief Justice.


A jury found Roger Mark Scott (defendant) guilty of first degree murder, conspiracy to commit first degree murder, and kidnapping, a dangerous crime against children. Defendant was sentenced to death on the murder count and to terms of imprisonment on the other counts. Appeal to this court is automatic on the death sentence, see Ariz.R.Crim.P. 31.2(b), and defendant appealed the other convictions and sentences. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. §§ 13-4031, 13-4033, 13-4035. Scott's co-defendants, Debra Milke and James Styers, were convicted in separate trials and have also appealed. The three cases were consolidated for oral argument, but we resolve them by separate opinion.


Because defendant challenges both the sufficiency of the evidence and the voluntariness of his statements to police, we set forth the facts in detail. Co-defendant Milke and her four-year-old son, Christopher, shared an apartment with co-defendant Styers and his two-year-old daughter. While Milke worked at an insurance agency, Styers, who was unemployed, watched the children. Defendant and Styers have been friends for over 20 years. At the time of the murder, defendant was 41 years old, unemployed, and living with his mother. He did odd jobs for spending money and took care of his elderly and ill mother.

About a week before the murder, Styers told defendant that he and Milke planned to kill Christopher, and Styers asked defendant if he would help. Milke told defendant twice in the week before the murder that she wanted her son killed. She said that she had to get away from the child, that she wasn't cut out to be a mother, and that she wanted Styers and defendant to take care of it. Milke had a $5000 life insurance policy on her son as part of her employee benefits package. Styers and Milke offered to pay defendant $250 from the insurance proceeds if he would drive the car. Defendant told police that he and Styers had attempted to kill Christopher at least once in the week before the murder.

On the day of the murder, around 11:00 a.m., Saturday, December 2, 1989, Styers, who had Christopher with him, picked up defendant at defendant's residence. Christopher wanted to see Santa Claus and Styers told Christopher that they were going to Metrocenter to see Santa. The three stopped at two drugstores so defendant could pick up a prescription and a Christmas gift; they also had lunch. Styers began driving out to the desert, and then pulled over so defendant could take over driving. Styers told defendant where to stop; the two men and Christopher got out of the car. Christopher was told they were going to look for snakes. The three walked into the wash about 50 feet. At some point, Styers told defendant that he was going to leave the body close to the road so it would be found in a few days. Styers told defendant to get in the car and drive north a little ways, turn around, and meet him on the road south of the wash.

Defendant drove north, turned around, and came back to the wash. Hearing nothing, he kept driving because there was traffic behind him. After making several passes by the wash, defendant pulled over and got out of the car. He did not see anybody, nor did he hear anything. He told police he thought Styers had decided not to go through with the plan, but then he heard three shots. Defendant got in the car, and then Styers came out to the road and got in the car. Styers said something to the effect of "that's done, get out of here." As defendant drove east on Union Hills, Styers tossed the shells from the gun out the window between 99th and 83rd Avenues.

Defendant drove to Metrocenter, a shopping mall, and parked outside of the Sears store. Styers had placed the gun in the glove compartment and told defendant to retrieve it later. The two men went into Metrocenter and, as planned, separated to make it look like they had not come together. Styers then told mall security that he had come to Metrocenter with Christopher to see Santa Claus and had stopped in Sears to use the restroom. Styers told security that while he was in the bathroom stall, Christopher disappeared. Metrocenter security searched unsuccessfully, and then called the police.

About 3:20 p.m. that afternoon, Styers and a Sears employee who had been helping him look for Christopher approached defendant in Metrocenter, and Styers asked defendant if he had seen Christopher. Defendant said he had not, and told Styers that he came to Metrocenter with an old friend from high school named Phil. Defendant later told police that this statement was made to distance themselves from each other and make it look like they had not come together.

Styers and defendant then walked to the parking lot. In the parking lot Styers gave defendant the gun and a pair of black Nike tennis shoes. The shoes were worn by Styers in the wash, and he wanted defendant to throw them in the dumpster and take the gun. Defendant threw the shoes in a planter in the parking lot, got on a bus around 4:20, and went home. The gun was later found in his closet in a box--exactly where defendant told police it would be.

In the meantime, Styers remained at Metrocenter with the police. Not until about 12:30 a.m. on Sunday did Styers mention to police that he had been with his friend, the defendant, earlier that day. Styers told police that they had gone to some drugstores, ate pizza, and then he and Christopher had dropped defendant off near defendant's residence. Styers said he also saw defendant later at Metrocenter, but that defendant told him he came with someone named Phil.

At that point, the police and Styers went to defendant's home. Defendant told the officer the same story; that Styers had dropped him off and he had walked to a Circle K where he ran into Phil, an old acquaintance from high school. Phil wanted to buy some tools, so they went to Metrocenter. At Metrocenter, defendant and Phil became separated. While he was looking for Phil, defendant ran into Styers and the Sears employee. Defendant said that was the first he had heard that Christopher was missing. The police came back to defendant's home a few hours later, and asked him to come down to the station to give a more detailed statement. Defendant voluntarily went to the station.

At the station, he gave a statement to Officer Jones. In this statement he gave the story we have just recited. Several hours later, Detective Mills interviewed defendant who continued to relate the same story. At about 12:45 p.m. on Sunday, December 3, Detective Saldate began interviewing defendant. Saldate told defendant he didn't believe the Phil story and read defendant his Miranda rights. 1 A few hours later, defendant told Saldate that the Phil story was a lie. Eventually, he admitted that he knew where Christopher's body was. That evening, defendant led police to the body, showed them where Styers threw the shells, and where he had left the tennis shoes. Defendant gave Detective Mills a detailed tape-recorded statement at 8:00 p.m. that night. Defendant, Styers, and Milke were arrested for the murder of Christopher.


1. Whether defendant's statements to the police on December 3, 1989 were voluntary.

2. Whether the trial court violated defendant's constitutional rights by its voir dire of the jury panel regarding the death penalty.

3. Whether the trial court erred by denying defendant's motion for judgment of acquittal of felony murder.

4. Whether the trial court erred by failing to give separate jury verdict forms for felony murder and premeditated murder.

5. Whether the trial court erred by failing to instruct the jury on facilitation as a lesser included offense of first degree murder.

6. Whether the trial court erred by not granting defendant's motion to dismiss the aggravation/mitigation hearing and to impose a sentence other than death.

7. Whether Arizona's death penalty statute is unconstitutional because:

a. the jury does not determine the existence of aggravating factors; or

b. the statute fails to adequately channel the sentencer's discretion; or

c. death by lethal gas constitutes cruel and unusual punishment.

8. Whether the death penalty was properly imposed in this case. Specifically:

a. Whether there was compliance with the Enmund /Tison standard of death eligibility.

b. Whether the state established beyond a reasonable doubt that the murder was committed in expectation of pecuniary gain.

c. Whether the murder was committed in an especially heinous and depraved manner.

d. Whether the trial court improperly weighed the victim's age twice in balancing aggravating and mitigating factors.

e. Whether the trial court properly considered the nonstatutory mitigating evidence proffered by defendant.

1. Voluntariness of Statements to Police

Defendant challenges the voluntariness of his statements to Detectives Saldate and Mills. Following a voluntariness hearing, the trial court found the statements were voluntary. Furthermore, it found no violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Defendant contends that he was in custody prior to the time he was read his Miranda rights, and the confession made after the Miranda warnings was the result of improper and coercive police conduct consisting of the deprivation of food, sleep, and medication and Detective Saldate's statement that the police would be sent to question defendant's mother. The state argues that he was not in custody until he made incriminating...

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