State v. Tucker

Decision Date13 June 2007
Docket NumberNo. CR-05-0162-AP.,CR-05-0162-AP.
Citation215 Ariz. 298,160 P.3d 177
PartiesSTATE of Arizona, Appellee, v. Eugene Robert TUCKER, Appellant.
CourtArizona Supreme Court

Terry Goddard, Arizona Attorney General, by Kent E. Cattani, Chief Counsel, Jeffrey A. Zick, Assistant Attorney General, Capital Litigation Section, Phoenix, Attorneys for the State of Arizona.

James J. Haas, Maricopa County Public Defender, by Christopher V. Johns, Deputy Public Defender, Karen Noble, Deputy Public Defender, Phoenix, Attorneys for Eugene Robert Tucker.

OPINION

BALES, Justice.

¶ 1 This automatic appeal is from a jury's determination that Eugene Robert Tucker should receive death sentences for three murders. We have jurisdiction pursuant to Article 6, Section 5(3), of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") section 13-4031 (2001).

I. Factual and Procedural Background1

¶ 2 On July 15, 1999, ten days after he turned eighteen, Tucker entered an apartment occupied by Ann Marie Merchant, a woman with whom he had a prior sexual relationship. Also living at the apartment were Ann Marie's brother, Roscoe Merchant; Roscoe's girlfriend, Cindy Richards; and Cindy's infant son, Anothy. Tucker bound, gagged, strangled, beat, sexually assaulted, and shot Ann Marie. He shot and killed Cindy and Roscoe as they slept in their bed; he left the infant alive in a crib in the same room.

¶ 3 In 2000, Tucker was tried and convicted of sexual assault, kidnapping, burglary, and three counts of first degree murder for the deaths of Ann Marie, Roscoe, and Cindy. The trial judge sentenced Tucker to twenty-five years to life for sexual assault, twenty-one years for kidnapping, twenty-one years for burglary, and death for each of the murders.

¶ 4 In 2003, the Court affirmed the convictions and sentences for the non-capital offenses and affirmed the murder convictions. State v. Tucker (Tucker I), 205 Ariz. 157, 170 ¶ 69, 68 P.3d 110, 123 (2003). Pursuant to State v. Ring (Ring III), 204 Ariz. 534, 555 ¶ 53, 65 P.3d 915, 936 (2003), the Court considered whether it was harmless error for the trial court, rather than a jury, to have found the aggravating factors and to have determined that death sentences were appropriate. Tucker I, 205 Ariz. at 167 ¶ 54, 68 P.3d at 120. The Court concluded that the findings of the A.R.S. § 13-703(F)(6) (Supp. 1999) aggravator based on cruelty for the death of Ann Marie and the § 13-703(F)(8) multiple murders aggravator for each victim constituted harmless error. Tucker I, 205 Ariz. at 169 ¶¶ 62, 66, 68 P.3d at 122. Resentencing was required, however, because the Court concluded that a reasonable jury could reach different conclusions than had the trial court with regard to the § 13-703(F)(6) aggravator for Roscoe and Cindy, which was based on a witness-elimination theory; the § 13-703(F)(3) aggravator, which was based on a theory that Tucker had placed the infant in "grave risk of death" by leaving him in the apartment after killing all the adult occupants; and the significance of the mitigating circumstances. Id. at 169-70 ¶ 68, 68 P.3d at 122-23.

¶ 5 On remand, a newly impaneled jury sentenced Tucker to death for each of the murders after finding four aggravating circumstances for each victim: (1) conviction of another offense eligible for life imprisonment or death; (2) grave risk of death to another person; (3) especially heinous, cruel, or depraved; and (4) conviction of one or more other homicides during the commission of the offense.

II. Aggravation Phase Issues
A. Right to Testify

¶ 6 Tucker contends that the trial judge interfered with his right to testify at the aggravation phase and failed to secure a knowing, voluntary, and intelligent waiver of that right. He also argues that the judge's comments prevented the jury from considering mitigation evidence. Because Tucker did not object at trial, we review for fundamental error. State v. Henderson, 210 Ariz. 561, 567 ¶ 19, 115 P.3d 601, 607 (2005).

¶ 7 Tucker testified during the first trial and denied committing the murders. See Tucker I, 205 Ariz. at 161 ¶¶ 16-17, 68 P.3d at 114. During the resentencing aggravation phase, Tucker's counsel told the trial judge that he and Tucker had discussed, in "very precise and in-depth conversations," whether Tucker would testify. Counsel opined that Tucker was "very clear" about his right. He confirmed that if Tucker decided to testify, Tucker would do so in the penalty phase.

¶ 8 The trial judge advised Tucker that he had a constitutional right to testify and that he should consider his lawyer's advice when making his decision. He also cautioned that if Tucker chose to testify, the State could cross-examine him about information that may not present him in a positive light and introduce witnesses to rebut his testimony. The trial judge told Tucker that, in his opinion, such rebuttal evidence would make Tucker "look very bad" and reveal to the jury information that his lawyer did not want disclosed.

¶ 9 During the penalty phase, the trial judge again advised Tucker of his right to testify and asked if his comments had coerced or impaired Tucker's decision. In response, Tucker stated: "Not at all, Your Honor. I choose to remain silent.... With all due respect to you and to your court, Your Honor, it has nothing to do with you."

¶ 10 The record confirms that Tucker understood and voluntarily relinquished his right to testify. The trial judge's comments simply informed Tucker of the consequences of testifying. Moreover, Tucker cannot complain that the judge's comments prevented the jury from hearing mitigation evidence during the aggravation phase. Such evidence is not proper at this phase of a capital sentencing proceeding. See State v. Anderson (Anderson II), 210 Ariz. 327, 348 ¶ 86, 111 P.3d 369, 390 (2005) ("The only issue at the aggravation phase is whether any aggravating circumstances have been proved ....").

B. Juror Challenge

¶ 11 Tucker contends that the trial judge improperly dismissed prospective Juror 147 off the record and excluded this juror based on her general opposition to the death penalty. We review Tucker's claim for fundamental error because Tucker did not object to the juror's dismissal. State v. Roseberry, 210 Ariz. 360, 366 ¶ 26, 111 P.3d 402, 408 (2005), cert. denied, ___ U.S. ___, 126 S.Ct. 444, 163 L.Ed.2d 338 (2005).

¶ 12 Juror 147 was not improperly dismissed. Arizona Rule of Criminal Procedure 18.5(f) requires challenges for cause to "be of record," but that rule was not violated here. Nor does the record suggest that Juror 147 was excused because of her opposition to the death penalty.

¶ 13 During voir dire, Juror 147 described herself as an eighty-one year old cancer survivor and "walking miracle" who tired easily and who often "unknowingly" passed out. When asked about her health, she gave a rambling answer and then volunteered, "I have qualms about the death penalty, and yet I don't because, you know, the Lord said that if you use the sword you perish by the sword." The trial judge noted that the question concerned her health and asked if there was any health reason she could not sit as a juror. She replied, "No. I think that I can. I am going to go ahead with it, yes." Neither the prosecutor nor Tucker's counsel questioned Juror 147 further.

¶ 14 When the trial judge later reviewed the list of prospective jurors with counsel, there was an off-the-record discussion of Juror 147, and the judge then stated, on the record, that Juror 147 was being excused "by agreement of counsel." Rule 18.5(f) did not require the trial judge to make a further record regarding the dismissal of this juror. Given that the record reflects that Juror 147 was dismissed by agreement of counsel, Tucker has not shown that she was excused because of her opposition to the death penalty or that her dismissal otherwise involved fundamental error.

C. Stipulation

¶ 15 Tucker argues that the trial judge failed to properly instruct the jury regarding the parties' stipulation to Tucker's conviction of an offense for which a life sentence was imposable and improperly commented on the evidence. This stipulation provided the factual basis for the A.R.S. § 13-703(F)(1) aggravator. Because Tucker did not object to any aspect of the stipulation, we review for fundamental error. Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d at 607.

¶ 16 During the aggravation phase, the trial judge read several stipulations to the jury, including one concerning Tucker's previous conviction. Before reading the stipulations, the judge instructed the jurors that the stipulations were facts agreed upon by the parties. He also told the jurors that they could consider these facts, but that the individual stipulations were not exhibits. The disputed stipulation stated: "On September 15, 2000, the defendant Eugene Robert Tucker was found guilty by a jury and convicted of the sexual assault of Ann Marie [Merchant] .... Under Arizona law, a sentence of life imprisonment was imposable for this offense." After discussing whether the stipulation or the guilt-phase verdicts should be admitted as an exhibit, the judge told counsel that he would not admit the stipulation as an exhibit.

¶ 17 The trial judge properly instructed the jury on the significance of the stipulation. Moreover, the final aggravation phase instructions told the jurors that, for the (F)(1) aggravator, they had to find beyond a reasonable doubt that Tucker had been convicted of an offense for which a sentence of life imprisonment was imposable. Thus, the trial judge did not improperly instruct the jury to find the (F)(1) aggravator as a matter of law. The trial judge also did not improperly comment on the evidence by clarifying whether the stipulation should be admitted or whether the guilt-phase verdicts should be read to the jury. There was no error regarding the stipulation, much less fundamental error.

D. Grave Risk of Death
1. Validity

¶ 18 Tucker argues...

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    ...expert relied on hearsay in forming opinion, expert did not repeat any out-of-court statements during his testimony. State v. Tucker , 160 P.3d 177 (Ariz. 2007). Materials expert’s redirect testimony, that employee of manufacturer of duct tape told him tape labeled “Sure Tape” was destined ......
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