State v. Trostle
| Decision Date | 24 December 1997 |
| Docket Number | No. CR-94-0175-AP,CR-94-0175-AP |
| Parties | , 259 Ariz. Adv. Rep. 13 STATE of Arizona, Appellee. v. David Anthony TROSTLE, Appellant. |
| Court | Arizona Supreme Court |
Defendant, David Anthony Trostle, was indicted on charges of first degree murder, armed robbery, kidnapping, sexual assault, and theft by control. Following trial, a jury found him guilty of all but the assault. The court sentenced him to death for the murder, to consecutive 14-year prison terms for armed robbery and kidnapping, and to a concurrent 10-year term for theft. This automatic appeal followed. We have jurisdiction pursuant to Ariz. Const. art. VI, § 5(3), A.R.S. § 13-4031, and Rule 31.2(b), Ariz.R.Crim.P.
Ellen Marie Knauss was reported missing on September 21, 1993. Within 24 hours, her Toyota 4-Runner truck was spotted in the parking lot of a Tucson apartment complex. Police set up surveillance and questioned various individuals observed near the vehicle. They eventually obtained the names of two suspects--Trostle and 14-year-old Jack Jewitt. Defendant was apprehended the following evening, made conflicting inculpatory statements, and led police to a remote desert area where Knauss's body was later found.
According to defendant, Jewitt had wanted a four-wheel drive truck and sought his help in "jacking" one. Around 6:00 p.m. on Sunday, September 19, they went to the parking lot of the Tucson Mall, where Jewitt first picked out a blue Suzuki. When its owner came out of the shopping mall escorted by a security officer, however, Jewitt set his sights on Knauss's Toyota. While waiting, he allegedly said, "Fuck it, we'll just do this all the way." Defendant told police he thought this meant Jewitt intended to kill the owner of the truck.
Knauss, a part-time employee of an inventory company, signed out of work that night at 11:48 p.m. and exited the mall. Defendant stated that Jewitt approached her with a sawed-off shotgun as she was getting into her truck. He ordered her to move over and open the passenger door. Once Jewitt had control of the vehicle, defendant got into the driver's seat. Jewitt held the weapon to the back of the victim's head while defendant drove to an isolated area outside of town. There, defendant took her into the desert and forced her to remove her clothing.
At 12:35 a.m., a Tohono O'Odham tribal police officer observed the Toyota parked alongside Mission Road and stopped to investigate. Jewitt, seated in the front passenger seat, told him that the truck had broken down and his uncle had gone to seek help. Having satisfied himself that the vehicle was not stolen, the officer left to search for the fictitious uncle. Thereafter, Jewitt joined defendant, who had tied Knauss's hands and ankles with her underwear, and allegedly exclaimed, "Time to get ready to go." Jewitt is then reported to have said, According to defendant, while Knauss kneeled on her clothing, Jewitt fired the 12-gauge shotgun into the back of her head.
Jewitt was tried separately as an adult and found guilty of first degree murder, armed robbery, kidnapping, and theft by control. He was sentenced to life imprisonment without possibility of release. Following defendant Trostle's convictions, the trial court found two aggravating factors--that there was an expectation of pecuniary gain, A.R.S. § 13-703(F)(5), and that the killing was especially heinous, cruel or depraved, A.R.S. § 13-703(F)(6). Believing that the mitigation evidence was insufficient to call for leniency, the judge sentenced him to death.
This "carjacking" murder received extensive media coverage. Defendant argues that the trial court erred in denying his motion for change of venue because the pretrial publicity was so pervasive and unfair that prejudice should have been presumed. Alternatively, he claims the jurors were actually prejudiced.
A trial court's ruling on a motion for change of venue will not be disturbed on appeal absent a prejudicial abuse of discretion. State v. Salazar, 173 Ariz. 399, 406, 844 P.2d 566, 573 (1992). For prejudice to be presumed, the defendant must show "that the publicity was so unfair, so prejudicial, and so pervasive that we cannot give any credibility to the jurors' answers during voir dire affirming their ability to decide the case fairly." State v. Bible, 175 Ariz. 549, 565, 858 P.2d 1152, 1168 (1993). This burden is extremely heavy and rarely met. Id. at 564, 858 P.2d at 1167.
Defendant documented 65 television broadcasts and 15 newspaper articles disseminated in the Tucson area prior to trial. Forty of the TV reports occurred within the first week following the victim's disappearance. Although most described only the facts of the crime, several highlighted increased mall protection and how shoppers could avoid being victimized. In our view, general reporting of the need for security in public areas and of citizens' vulnerability to random violence falls short of an "attempt [by the media] to whip up hysteria and passion in the community." Bible, 175 Ariz. at 565, 858 P.2d at 1168. We cannot say that this coverage was unfair or pervasive. The remaining stories, broadcast on only 8 days over a 3-month period, focused on whether Jewitt would be tried as an adult. Unquestionably, the publicity diminished with the passage of time; the last TV broadcast aired several months before the start of trial.
Two of the newspaper articles contained evidence of prior bad acts not admitted at trial. In one, defendant was described as having had a history of molesting children. In the other, the prosecutor was interviewed regarding defendant's conviction for an unrelated car theft two weeks before the trial of this case began. He commented that the earlier crime displayed a similar motive as the carjacking in question. A review of everything submitted by defendant, however, reveals that these two articles were "exceptions to the largely factual information in the great bulk of the news reports." Bible, 175 Ariz. at 564, 858 P.2d at 1167. Furthermore, although 31 of 34 prospective jurors on the panel had some knowledge of the crime, the vast majority stated they remembered few, if any, details. Reviewing the record as a whole, we believe the trial was not "utterly corrupted" by publicity such that prejudice must be presumed. See id. at 565, 858 P.2d at 1168.
To prove actual prejudice, the defendant "must show that the jurors have formed preconceived notions concerning [his] guilt and that they cannot lay those notions aside." State v. Chaney, 141 Ariz. 295, 302, 686 P.2d 1265, 1272 (1984). The appropriate inquiry focuses on the effect of pretrial publicity, and mere knowledge of the case is insufficient to disqualify a juror. Id. Of the 46 panelists questioned about media coverage, 8 expressed views regarding defendant's guilt and were immediately dismissed. Most of those remaining recalled little or nothing of the news reports. Additionally, two of the jurors who sat on the case had no knowledge of the offense, and all 12 indicated that they could decide the issues solely on the basis of the evidence presented at trial. The court's denial of the motion for change of venue was within its sound discretion. See State v. Eastlack, 180 Ariz. 243, 253, 883 P.2d 999, 1009 (1994).
Defendant also argues that the trial court conducted inadequate voir dire. He claims that the judge should have probed the prospective jurors' knowledge and biases stemming from pretrial publicity by utilizing written questionnaires, as well as individual, small group, or private examination at the bench. When jury selection began, the judge stated:
I am going to be asking for a show of hands of people that think they may have seen or heard about this case in some form. And then I will ask you what if anything you may have seen or heard about it, that is, have you seen something about it on TV, have you read about it in the newspaper.
Now when I am talking to you I don't want you to tell me exactly what details you remember because what you say might have an impact on one of the other jurors who may not have seen or heard about the case. See what I am saying? I don't want what you say to effect [sic] these other jurors. So just kind of keep your responses tailored to my questions, if you would.
Defendant did not object to this limiting instruction and at no time requested further inquiry of any particular juror. Other than initially asking that voir dire be conducted by counsel, the defense made no objections to the scope or adequacy of the selection process.
The trial court examined each person about his or her media exposure, memory of details, and ability to keep an open mind. It also asked questions requested by defendant, who ultimately passed the panel. Although the court might have conducted a more extensive voir dire using other techniques, defendant's failure to object precludes any claim on this basis. Bible, 175 Ariz. at 570, 858 P.2d at 1173. Waiver aside, the court did not abuse its discretion. None of the jurors exhibited a closed mind. All stated that they could follow the court's instructions and decide the case on the evidence. Id. at 572, 858 P.2d at 1175.
The prosecution exercised two peremptory strikes to remove the only Hispanic members of the panel. Defendant made a Batson challenge, 476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69 (1986), and the court, by requesting explanations for the strikes, implicitly found that a prima facie showing of racial discrimination had been made. See State v. Hernandez, 170 Ariz. 301, 304, 823 P.2d 1309, 1312 (App.1991). The...
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