State v. Strong
| Decision Date | 02 September 2014 |
| Docket Number | No. 1 CA-CR12-0754,1 CA-CR12-0754 |
| Parties | STATE OF ARIZONA, Appellee, v. PRESTON ALTON STRONG, Appellant. |
| Court | Arizona Court of Appeals |
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Yuma County
The Honorable John Neff Nelson, Judge
AFFIRMED AS MODIFIED
Arizona Attorney General's Office, Phoenix
By Terry M. Crist, III
Elizabeth M. Brown, Attorney at Law, Yuma
By Elizabeth M. Brown
Judge Randall M. Howe delivered the decision of the Court, in which Presiding Judge Michael J. Brown and Judge Donn Kessler joined.
¶1 Preston Alton Strong appeals his convictions on two counts of first-degree murder, one count each of kidnapping, armed robbery, burglary, and attempted arson, and two counts of aggravated assault. For reasons that follow, we affirm all of the convictions, but modify the judgment of guilt and sentencing order to merge the two convictions for first-degree murder into a single count and vacate the sentence imposed on the second murder count.
¶2 On the evening of November 2, 2007, the police were called to the victim's home to perform a welfare check. When officers entered the home, they smelled natural gas and saw multiple candles burning in the kitchen and dining room. The officers retreated from the home and contacted the fire department for assistance. After turning off the gas and ventilating the home, firefighters entered and extinguished the candles. The firefighters determined that all four burners on the home's gas stove had been turned on.
¶3 Once the home was safe to enter, officers found the victim dead in the master bathroom. The victim was dressed in pants and an undershirt, and his body was draped facedown over the bathtub with the lower part of the body outside the tub. The tub was partially filled with water, and the victim's head was in the water. In addition, the victim had both a leather belt and a cloth belt from a bathrobe wrapped around his neck.
¶4 An autopsy revealed that the victim died of asphyxia due to ligature strangulation with blunt force trauma to his head as a contributing factor. The victim's body was found to have bruising and numerous fractured ribs consistent with additional multiple blunt force impacts to his rib area and his legs before his death. Based on the condition of the body, the pathologist who performed the autopsy opined that the time of death was closer to when the victim was last seen alive in the late afternoon of November 1st, rather than when the victim was found dead the following evening.
¶5 The victim had engaged in strange conduct the day before he died. The victim called a friend that afternoon and offered her one hundred dollars if she would come by his home and take a check to the bank to cash for him. The check was in the amount of $24,000 and was left under the door mat at the victim's front door. While the friend went to and from thebank, the victim called her several times to see if she had completed the errand. Once at the bank, the friend presented the check and the teller gave her the funds in packets of fifty-dollar bills bound with purple money bands. When the friend returned to the victim's home with the money, the victim opened the door only a crack and took the money, telling the friend that it was for a family emergency. The friend asked if she could come in, but the victim said no, claiming he was not dressed. The friend was puzzled by this response because she could see that the victim was in fact dressed, wearing the same pants and shirt he was found dead in the following evening. Shortly after the friend left, the victim called her again and asked if they could meet for dinner that evening. The friend agreed, but the victim never appeared at the time scheduled and never returned any of the friend's calls. The friend learned the next day that the victim's cell phone had been found near a canal and asked the police to conduct the welfare check.
¶6 Strong's ex-girlfriend, the victim's co-worker, informed the police on the same evening the victim was found dead that she had concerns that Strong was involved in his murder. She told the police that Strong had a large amount of money that morning and no explanation for it. Subsequent investigation led the police to conclude that Strong forced the victim to arrange for delivery of the money from the bank, then killed him and left the gas turned on and the candles lit to cover up the murder by burning down the home.
¶7 A grand jury indicted Strong on first-degree premeditated murder, first-degree felony murder, kidnapping, armed robbery, first-degree burglary, aggravated assault, and attempted arson. The State further alleged multiple aggravating circumstances and gave notice it intended to seek the death penalty.
¶8 During pretrial proceedings, Strong offered to waive his right to a jury trial in exchange for withdrawal of the State's notice of intent to seek the death penalty. The State accepted the offer, and the trial court held a hearing at which Strong signed a written waiver of his right to a jury trial and the trial court questioned him about his decision. The trial court accepted the waiver, finding that it was made knowingly, intelligently, and voluntarily.
¶9 Following a thirty-four-day bench trial, the trial court found Strong guilty on all eight counts. The trial court thereafter sentenced Strong to concurrent terms of natural life imprisonment on the first-degree murder convictions. The remaining convictions were ordered to be served consecutively to the murder convictions, with presumptive terms of five years' imprisonment on each of the kidnapping, armed robbery, andburglary counts, and three and one-half years' imprisonment on each of the aggravated assault and attempted arson counts, totaling twenty-two years consecutive to the two concurrent life terms. Strong timely appealed.
¶10 Strong argues the trial court erred by: 1) denying his motion for change of venue; 2) denying his motion to disqualify the Yuma County Attorney's Office for prosecutorial misconduct; 3) finding that he made a voluntary waiver of his right to a jury trial; and 4) finding him guilty when insufficient evidence supported his convictions.
¶11 Before waiving his right to a jury trial, Strong moved for a change of venue, citing unfair pretrial publicity regarding the victim's murder and a second incident involving the murder of six people in which the police named him a "person of interest." He argued that given the nature and amount of the pretrial publicity and Yuma County's small population, receiving a fair trial in that county would be impossible. After hearing argument and considering the evidence, the trial court denied the motion.
¶12 Strong claims the trial court abused its discretion in refusing to change venue. In response, the State argues Strong's election to proceed with a bench trial mooted any claim he may have had arising out of the denial of his motion for a change of venue. We agree that Strong's waiver of a jury trial mooted the issue of the motion for change of venue.
¶13 A defendant is entitled to change the venue for his trial "if a fair and impartial trial cannot be had for any reason other than the interest or prejudice of the trial judge." Ariz. R. Crim. P. 10.3(a). Appellate review of a ruling on a motion for change of venue based on a claim of pretrial publicity involves two inquires: "(1) did the publicity pervade the court proceedings to the extent that prejudice can be presumed?; if not, then (2) did defendant show actual prejudice among members of the jury?" State v. Murray, 184 Ariz. 9, 26, 906 P.2d 542, 559 (1995). Strong explicitly states in his opening brief that he "is not alleging on appeal that presumed prejudice existed" and concedes that he must therefore "demonstrate actual prejudice" to prevail on his claim of error.
¶ 14 In the absence of presumed prejudice, a defendant must demonstrate "that the pretrial publicity was actually prejudicial and likely deprived him of a fair trial." State v. Davolt, 207 Ariz. 191, 206 ¶ 49, 84 P.3d456, 471 (2004). "The relevant inquiry for actual prejudice is the effect of the publicity on the objectivity of the jurors actually seated." (internal quotation marks and citations omitted) (emphasis added). State v. Cruz, 218 Ariz. 149, 157 ¶ 21, 181 P.3d 196, 204 (2008). By having the case tried to the court rather than a jury, Strong eliminated any possibility of being deprived of a fair trial due to biased jurors.
¶15 A month before trial was to begin, Strong moved to disqualify the Yuma County Attorney's Office from handling the prosecution. He alleged that the prosecutor's office and the Yuma Police Department engaged in the following misconduct that interfered with his right to prepare a defense: 1) causing a police officer to cancel an interview defense counsel scheduled; 2) placing the statement "Please do not discuss your testimony with anyone" on subpoenas served on trial witnesses; 3) video recording a defense witness while he was inspecting evidence at the Yuma Police Department; 4) obstructing his ability to obtain records from the Yuma County jail; and 5) intimidating mitigation witnesses by advising them to "disassociate" with Strong. At the conclusion of a lengthy evidentiary hearing, the trial court denied the motion, finding that neither the Yuma County Attorney's Office nor the Yuma Police Department intentionally, or with reckless indifference, committed misconduct or prejudiced Strong's ability to prepare his defense.
¶16 Strong claims the trial court erred in denying his motion to disqualify, arguing that disqualification was an appropriate discovery sanction under ...
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