State v. Towery
| Decision Date | 27 June 1996 |
| Docket Number | No. CR-92-0493-AP,CR-92-0493-AP |
| Citation | 920 P.2d 290,186 Ariz. 168 |
| Parties | STATE of Arizona, Appellee, v. Robert Charles TOWERY, Appellant. |
| Court | Arizona Supreme Court |
On October 3, 1991, Robert Charles Towery ("Defendant") and Randy Allen Barker were charged in Maricopa County on six counts: first-degree murder, armed robbery, first-degree burglary, kidnapping, theft, and attempted theft. About six months before trial, the trial judge granted Defendant's motion to sever. Defendant's murder trial began on August 3, 1992. Eleven days later, the jury found him guilty of felony murder and all other counts. At the sentencing hearing, the trial judge sentenced Defendant to death for the murder and to concurrent prison terms of five to twenty-one years for the other counts.
This automatic appeal of the death sentence followed. Ariz. Const. art. 6, § 5(3); A.R.S. §§ 13-4031 and 13-4033(A).
In exchange for a reduced charge of second-degree murder, Barker testified against Defendant and provided much of the State's evidence. Other witnesses corroborated some critical features of Barker's story and connected Defendant with the charged offenses. Nevertheless, the State's case rested on Barker's testimony. His version of the facts follows.
Defendant, Barker, and John Meacham rented a three-bedroom house in Scottsdale, Arizona. Defendant occupied one bedroom with his girlfriend, Diane Weber, and her infant daughter. Barker occupied another bedroom with his then-girlfriend, Monique Rousseau. For several weeks, Defendant and Barker had discussed "pulling off a robbery" of one of two possible victims known to Defendant. On September 4, 1991, they decided to rob Mark Jones at his home.
That evening they drove in Barker's car to a Denny's Restaurant where they called a taxi. The taxi dropped them off near Jones' home. They walked to the house and knocked on the door. When Jones answered, Defendant said his car had broken down and asked if he and Barker could come in to use the telephone. Defendant asked Jones, Jones had been introduced to Defendant on a prior occasion when Defendant sought counseling about his new business enterprise. Jones invited them in and showed them the telephone. While Barker faked a telephone call, Defendant opened his briefcase and pulled out a gun. The briefcase also contained gloves, plastic tie wraps, handcuffs, and a large veterinary syringe apparently filled with battery acid. After Defendant and Barker put on gloves, Barker handcuffed Jones. Defendant rummaged through the house, took Jones' car keys, and loaded Jones' Lincoln with a television, photocopy machine, cameras, jewelry, and other items. Defendant removed Jones' wallet from his back pocket and took about $200 and credit cards. They also took $1,000 from a desk drawer.
Before leaving, Defendant and Barker took Jones to the master bedroom at gunpoint, uncuffing him while he used the bathroom along the way. They asked him whether he was expecting anyone soon, and Jones said no. According to Barker, Defendant offered Jones Jones chose to be put to sleep and was laid face down on the bed with his hands bound behind his back. Contrary to his statement to Jones, Defendant apparently believed the injected substance would kill Jones.
At his request, Jones' shoes were removed to make him more comfortable. Defendant made several attempts to inject the contents of the syringe into Jones' arm, pushing the needle all the way through a vein. The drug having no effect, Jones pretended to sleep by snoring. Determined to kill Jones, Defendant made a noose out of plastic tie wraps from his briefcase, slipped it over Jones' head, and pulled tightly on its end to strangle Jones. Jones did not struggle but made choking and gagging sounds. Defendant then cut and removed the tie-wrap noose from Jones' neck. Believing Jones was not yet dead, Defendant made another noose "like the first one ... popped [it] over the head, and pulled tight with a 'zip' sound," explained Barker.
The two men then loaded a large television into Jones' other car, a Dodge convertible. While trying to start the Dodge, Barker set off its alarm. Barker jumped into the Lincoln and the two men drove away with Defendant at the wheel. Barker allegedly threw the empty syringe out the window into an oleander hedge 1 as they drove back to Denny's to get Barker's car. They returned to their home, unloaded the goods, putting some into Meacham's bedroom, and removed a compact disk player from the Lincoln's dash. Defendant then drove the Lincoln to the parking lot of an apartment complex while Barker followed in his car. They parked the Lincoln there and returned home. A security guard at the complex saw the men and later identified Defendant in a photo lineup.
The next morning, Meacham returned from work to discover in his bedroom items he had not seen before. Defendant, Barker, and Diane were also in the house. Meanwhile, two employees of the golf club that Jones frequented had looked for Jones and found his body about mid-morning that day.
Defendant testified and offered an alibi. According to Defendant, on the night of the robbery he had driven Barker to Denny's in Barker's car. He had a soda until Barker's taxi arrived, then drove to Zorba's, an adult book store, where he had arranged to meet Tina Collins. While waiting, Defendant went inside to buy a book and returned to his car. Tina arrived at Zorba's about fifteen minutes after Defendant. They then drove and parked near Defendant's home, talking for about two hours in the car. Defendant returned to Zorba's, dropped Tina off, and went to meet Barker at a Circle K near their house. Because Barker was not there as planned, Defendant went home. Barker soon arrived home with a stolen car and stolen property. Defendant claimed he helped Barker unload the goods and dispose of the stolen car. To account for the stolen property police found in his possession, Defendant claimed he had bought the items from Barker.
Tina Collins testified by videotape and gave the following story, corroborating Defendant's version. She first met Defendant about two weeks before the murder at a party, where they discussed performing a sex act on Defendant's girlfriend and arranged to meet again on September 4. They talked over the telephone on September 4 and planned to meet at nine o'clock that night to negotiate a deal. Tina did not arrive until 9:10 or 9:15 and joined Defendant in a black TransAm he was driving. They drove to the parking lot of an office building, talked for an hour, went to a convenience store for sodas, and returned to the parking lot to talk some more. After meeting for a couple of hours, Defendant drove Tina back to Zorba's. When asked whether she saw any unusual equipment in the car, Tina said she saw a gun and a police scanner, which she first thought was a walkie-talkie. Nothing in the record disputes Tina's professed observations. 2
The jury apparently believed Tina and Defendant less than Barker and found Defendant guilty of first-degree murder. At the sentencing hearing, the trial judge found three statutory aggravating factors and two mitigating factors. In aggravation, the State proved that Defendant (1) had been convicted of a crime for which a life sentence was imposable, 3 (2) committed the murder for financial gain, 4 and (3) committed the murder in an especially cruel, heinous, or depraved manner. 5 The judge found that the mitigating factors, Defendant's drug-impaired capacity to conform his conduct to the law and his codefendant's lenient plea-bargained sentence, were not sufficiently substantial to call for leniency. Accordingly, the judge sentenced Defendant to death.
Defendant takes issue with a number of the trial judge's procedural rulings, arguing that they constituted reversible error. He also challenges the trial judge's findings at the sentencing hearing and the constitutionality of Arizona's death penalty scheme. We consider each of Defendant's arguments.
Defendant contends that by twice limiting his cross-examination of Barker, the trial judge violated his right under the Sixth and Fourteenth Amendments to confront a key witness. In one instance the judge prohibited the defense from asking Barker what his attorney had said to him about his chances of receiving the death penalty without a plea bargain. In the second instance, the judge barred the defense from probing Barker about his belief in the occult. Defendant charges that both of these rulings infringed his right to effectively cross-examine an important witness and were fundamental error.
To show Barker had a motive to testify for the State and inculpate Defendant, even if he had to lie, Defendant cross-examined Barker about benefits he expected in return for his plea agreement. Defendant asked Barker whether his attorney had told him that the State might seek the death penalty if Barker did not cooperate with the prosecutor. Barker's lawyer was present and objected on grounds of attorney-client privilege, and the judge sustained the objection.
A defendant has great latitude to cross-examine an "accomplice or co-defendant who has turned State's evidence and testifies on behalf of the State in a trial of his co-defendant." State v. Morales, 120 Ariz....
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