State v. VanWinkle

• Decision Date: 15 August 2012
• Docket Number: No. CR–09–0322–AP.,CR–09–0322–AP.
• Citation: 285 P.3d 308,230 Ariz. 387,641 Ariz. Adv. Rep. 9
• Parties: STATE of Arizona, Appellee, v. Pete J. VANWINKLE, Appellant.
• Court: Arizona Supreme Court

230 Ariz. 387

285 P.3d 308

641 Ariz. Adv. Rep. 9

STATE of Arizona, Appellee,

v.Pete J. VANWINKLE, Appellant.

No. CR–09–0322–AP.

Supreme Court of Arizona,

En Banc.

Aug. 15, 2012.

Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section, Ginger Jarvis, Assistant Attorney General, Phoenix, Attorneys for State of Arizona.

Michael J. Dew, Attorney at Law By Michael J. Dew, Phoenix, Attorney for Pete J. VanWinkle.

OPINION

BRUTINEL, Justice.

¶ 1 In 2009, Pete J. VanWinkle was sentenced to death for the first degree murder of Robert Cotton. We have jurisdiction over this automatic appeal under Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 13–4031 (2010).

I. FACTUAL AND PROCEDURAL BACKGROUND¹

¶ 2 On May 1, 2008, when Maricopa County Jail inmates VanWinkle and Robert were out of their cells for recreation time, jail videos show Robert, who walked with a visible limp, climbing the stairs to the second level of cells. Robert looked backward twice and appeared to talk to VanWinkle.² When he reached the second tier, Robert stood outside VanWinkle's cell. VanWinkle ascended the stairs less than a minute later, appearing to speak to Robert, who then walked into the cell.

¶ 3 Before VanWinkle entered his cell, he walked into a shower area next door. A few seconds later, he entered his cell. For about one minute, VanWinkle and Robert stood in the cell outside the view of the jail surveillance camera. When they came back into view, VanWinkle was on top of Robert, hitting him. After a brief struggle, Robert became still.

¶ 4 Then, for approximately eighteen minutes, VanWinkle continued to beat Robert, strangling him, stomping on him, punching him, and jumping up and down on his motionless body. The video reflects that VanWinkle took several breaks to rest and wipe the blood from his hands before resuming the attack.

¶ 5 VanWinkle then dragged Robert's body from the cell and tried to push it through the railing onto the first level. When he could not do so, VanWinkle went downstairs, got a drink of water, and waited for jail staff to respond. Within minutes they handcuffed VanWinkle and tried unsuccessfully to revive Robert.

II. ISSUES ON APPEAL

A. Denial of Motions to Continue

¶ 6 VanWinkle contends that the trial court abused its discretion by denying his successive motions to continue the trial. He argues that not postponing his trial date prevented his counsel from preparing to present mitigating evidence.

¶ 7 VanWinkle is not now contending that he was denied effective assistance of counsel, as he acknowledges that such claims cannot be raised on direct appeal. See State v. Spreitz, 202 Ariz. 1, 3 ¶ 9, 39 P.3d 525, 527 (2002). Instead, he contends that the trial court abused its discretion in denying a continuance because it left his counsel unprepared. See, e.g., State v. Barreras, 181 Ariz. 516, 520, 892 P.2d 852, 856 (1995). We will not find an abuse of discretion unless VanWinkle demonstrates prejudice. See id.; see also State v. Lamar, 205 Ariz. 431, 437–38 ¶ 32, 72 P.3d 831, 837–38 (2003) (requiring defendant to establish prejudice when trial court denied continuance).

¶ 8 A party requesting a continuance must demonstrate that “extraordinary circumstances exist” and “state with specificity the reason(s) justifying” a continuance. Ariz. R.Crim. P. 8.5. When a trial court grants a continuance, it must state on the record specific reasons for doing so. Id.

¶ 9 In each of his three motions requesting continuances, VanWinkle argued that his lead counsel had a grueling schedule that prevented him from adequately preparing for trial in this case; he also asserted generally that counsel needed more time for trial preparation and investigation of mitigation evidence. In denying the first two motions, the trial court acknowledged counsel's busy schedule, but instructed that it would not grant a motion containing “only conclusory statements such as ... additional time is needed to prepare for trial or investigate the matter.” Despite the court's warnings, VanWinkle continued to file non-specific motions. In his third motion, counsel argued that he needed to interview state witnesses and to conduct pretrial investigation into mitigation topics, that “several motions remain[ed] to be written,” and that some of VanWinkle's family members had not yet been interviewed.

¶ 10 Although we recognize that defense counsel must be allowed sufficient time to prepare, see State v. Narten, 99 Ariz. 116, 120, 407 P.2d 81, 83 (1965), we cannot conclude on this record that the trial court abused its discretion. As the court repeatedly noted, counsel failed to abide by Rule 8.5's specificity requirements. Without this information, the trial court could not meet its own Rule 8.5(b) obligation even if it were inclined to grant a continuance. SeeAriz. R.Crim. P. 8.5(b) (requiring trial court to state on the record specific reasons for granting a continuance).

¶ 11 On appeal, VanWinkle argues that he could not provide more detail because his counsel did not have time enough to investigate to know what potential mitigation issues required more attention. But, as the trial court noted, the defense had been engaged in investigating the case for more than a year when it filed these motions. And counsel had several ways he could have fulfilled Rule 8.5's requirements even absent full knowledge of what evidence might exist. As the trial court suggested in denying VanWinkle's first motion, he could have detailed what members of the defense team had done to prepare for trial and outlined tasks they had yet to complete. He could have made an offer of proof to explain what evidence he believed additional investigation would uncover. See State v. Benge, 110 Ariz. 473, 477, 520 P.2d 843, 847 (1974) (acknowledging usefulness of offer of proof to justify continuance). And if VanWinkle was concerned about disclosing matters of trial strategy or work product, he could have requested an ex parte hearing. SeeAriz. R.Crim. P. 15.9(b) (allowing ex parte proceedings when defendant requires confidentiality).

¶ 12 VanWinkle has also failed to establish prejudice from the denials. Counsel had approximately eighteen months to prepare for a trial that lasted just ten days from opening statements to the jury's penalty phase verdict. Evidence at trial involved showing the video-recording of the crime and the testimony of sixteen witnesses, including VanWinkle himself. Counsel cross-examined witnesses and presented affirmative defenses based on self-defense and justification. VanWinkle has not identified any witness or other evidence that could have been presented, or presented more effectively, had his counsel been afforded more preparation time.

¶ 13 At trial, a mitigation specialist assisted his defense team, and counsel had available several traditional sources of mitigation. Because VanWinkle, who was twenty-six when he murdered Robert, had been incarcerated almost continuously from the time he was eighteen, much of his social history was fully documented. And as the State pointed out after compiling its own mitigation report, nothing suggests that VanWinkle's upbringing had been extraordinary or that his childhood posed any particular difficulty for investigating possible mitigation. VanWinkle maintained close relationships with his mother and an uncle, whom his counsel interviewed. He had been evaluated by mental health professionals whose reports were made available to the defense. Additionally, VanWinkle cooperated with his defense counsel, testifying on his own behalf and complimenting his lead attorney's dedication.

¶ 14 This record does not support VanWinkle's suggestion that, but for the trial court's denial of a continuance, he would have been able to present substantial additional mitigation.

B. Sufficient Evidence of Premeditation

¶ 15 VanWinkle contends the State presented insufficient evidence of premeditation. Viewing the facts in the light most favorable to sustaining the verdict, we review whether substantial evidence supports the jury's finding. See State v. Bearup, 221 Ariz. 163, 167 ¶ 16, 211 P.3d 684, 688 (2009). To prove premeditation, the state must show that a defendant intended to kill another person, and “after forming that intent ... reflected on the decision before killing.” State v. Thompson, 204 Ariz. 471, 479 ¶ 32, 65 P.3d 420, 428 (2003). Circumstantial evidence may establish that the defendant reflected on the killing. Id. at 480 ¶ 33, 65 P.3d at 429.

¶ 16 The State presented ample evidence from which the jury could infer that VanWinkle lured Robert to his cell to kill him. Importantly, the jury watched surveillance video from which it could infer VanWinkle's intent. See Ferguson v. State, 307 Ga.App. 232, 704 S.E.2d 470, 473 (2010) (surveillance video prior to theft allowed jury to infer defendant's state of mind); State v. Albercht, 809 So.2d 472, 478 (La.Ct.App.2002) (video recording of event allowed court to infer perpetrator's mental state); State v. Davis, 318 S.W.3d 618, 622, 640 (Mo.2010) (video of rape and murder of “supreme probative value” when defendant contended victim's suffocation was accidental). The video does not portray any aggressive conduct by the victim, and the jury could have concluded that VanWinkle's calm demeanor suggested that he had planned the killing. See State v. Braxton, 352 N.C. 158, 531 S.E.2d 428, 444–45 (2000) (holding testimony that inmate was calm immediately following murder relevant evidence that attack was premeditated and not in self defense). The jurors could have concluded that VanWinkle acted with premeditation upon watching his prolonged, brutal attack, during which he alternated between beating, strangling, and jumping up and down on the victim, he took breaks, and he renewed his attack against his unresisting victim State v. Gulbrandson, 184 Ariz. 46, 65, 906 P.2d 579, 598 (1995) (finding ...