State v. Vickers

Decision Date31 January 1989
Docket NumberNo. CR-86-0147-AP,CR-86-0147-AP
Citation159 Ariz. 532,768 P.2d 1177
PartiesSTATE of Arizona, Appellee, v. Robert Wayne VICKERS, Appellant.
CourtArizona Supreme Court

Robert K. Corbin, Atty. Gen. by William J. Shafer, III and Jack Roberts, Asst. Attys. Gen., Phoenix, for appellee.

Lorona & Associates by Jess A. Lorona, Mesa, for appellant.

CAMERON, Justice.


Defendant, Robert Wayne Vickers, appeals his conviction and sentence of death for the first degree murder of Wilmar "Buster" Holsinger. A.R.S. § 13-1105(A)(1); A.R.S. § 13-703; Ariz.R.Crim.P. 31.2(b), 17 A.R.S. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. §§ 13-4031 and -4033.


We must address the following issues:

1. Were defendant's due process and equal protection rights violated because the trial court denied defendant's motion for further medical testing?

2. Did the trial court err in ruling that the state could impeach potential defense witnesses regarding their membership in the Aryan Brotherhood?

3. Did the trial court err in finding that defendant's statements made after the fire were voluntary?

4. Did the trial court err in admitting prior bad acts of the defendant?

5. Did the state prove beyond a reasonable doubt that the murder was premeditated?

6. Did the state prove beyond a reasonable doubt that defendant was sane when he committed the offense?

7. Did the trial court err in failing to instruct the jury on the lesser-included offense of manslaughter?

8. Is defendant's death sentence unconstitutional?


On 4 March 1982, the defendant Robert Wayne Vickers, a prisoner on death row, was released from his cell at approximately 5:00 p.m. to do porter duties. This included picking up trash around the cell pod after meals and also allowed the inmates time out of their cells to shower and talk with other inmates locked in their cells. The pod contained four cells with one inmate housed in each cell. Sometime between 5:00 and 6:45 p.m., Vickers showed the victim, Wilmar "Buster" Holsinger, a picture of his niece and her crayon drawing which Vickers had received in the mail that day. Upon seeing the pictures, Buster asked Vickers if, referring to Vickers' niece, he had ever "eaten her out."

Vickers was angered by this statement and sometime around 6:45 p.m. he poured five bottles of Vitalis, a hair grooming product containing alcohol, into a plastic ice cream container, placed some tissue in the container, ignited it, and threw the solution on Buster. The evidence showed that Vickers made between three to nine sloshes of the liquid on Buster and in Buster's cell.

Before this, Officer Marling, who was assigned to cover the pod area, had picked up the trash bag that Vickers had placed next to the pod door. Marling left the pod area to dispose of the trash bag and ten minutes later the fire alarm sounded. Alerted by the alarm, Marling returned to the pod area where he met three other prison workers, Captain Padilla, Sergeant Romines and Officer Vancura.

Although the pod was filled with thick smoke, Padilla and Vancura managed to pull Vickers, who was lying on the floor near the pod door, from the pod area. Outside the pod Padilla asked Vickers, "What happened?" and Vickers replied "I burned Buster." Padilla then asked Vickers if Buster was dead and Vickers stated, "He should be, he's on fire."

Padilla, Marling and Vancura then rescued inmate Smith and attempted to rescue inmate Mata. Due to the amount of smoke in the pod, they were unable to rescue Mata until airpacks arrived.

When Smith and Mata were removed from the pod, both were suffering severely from smoke inhalation. Smith was in a semiconscious state while Mata was unconscious. Evidence indicated that had they been left in the smoke-filled pod much longer they would have died from smoke inhalation. After Mata and Smith were rescued, Buster was retrieved and pronounced dead.

From a jury verdict, judgment of guilt and sentence of death, defendant appeals.


Defendant claims his conviction was unconstitutional because the trial court denied his request for further medical tests. Defendant argues that this violated his due process and equal protection rights.

Defendant relied on insanity as a defense and specifically that he had temporal lobe epilepsy. Dr. Bindelglas, a psychiatrist who testified for the defense, stated that there was a "definite probability" that defendant had temporal lobe epilepsy. However, Dr. Bindelglas testified that no one could positively conclude whether defendant had the physical condition unless defendant underwent further testing and observation. Dr. Bindelglas stated that no facilities in Arizona were suitable for this type of testing. Instead the defendant would have to be transported to an out-of-state facility and undergo observation for four to six weeks.

The trial court appointed Dr. William Masland, a neurologist, to examine the defendant to determine if he needed further testing. The trial court stated in its minute entry that if Dr. Masland felt further tests were necessary, additional arrangements would be made. After reviewing the defendant's medical records and examining the defendant, Dr. Masland concluded that further diagnostic testing would be "totally superfluous." Two other doctors (Maier I. Tuchler and John S. LaWall) testified that defendant did not have temporal lobe epilepsy. The court denied defendant's motion for further medical tests.

At trial Dr. Tuchler testified:

Q. Could that series of acts been the result of any kind of epileptic seizure or postictal seizure or anything of that sort?

A. I have an opinion. This is an act that was planned that's characteristic of the person that was impulsive indeed, but not the product of a seizure....

* * *

* * *

Now this is not a simple action. This is a complicated volitional act. It does not appear to be the kind of an act that would occur in an individual with a temporal lobe seizure disorder.

Defendant, relying on Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), contends that the trial court violated his due process rights by not allowing him the full opportunity to prove his insanity defense. In Ake, the Supreme Court stated:

[W]hen a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist's assistance on this issue if the defendant cannot otherwise afford one.

Id. at 74, 105 S.Ct. at 1091-92.

The Supreme Court also delineated three factors to be considered in determining whether a state must provide the assistance of a psychiatrist:

Three factors are relevant to this determination. The first is the private interest that will be affected by the action of the State. The second is the governmental interest that will be affected if the safeguard is to be provided. The third is the probable value of the additional or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided.

Id. at 77, 105 S.Ct. at 1093. These factors may also be analyzed to determine if the state should provide the defendant with further testing.

The first factor is the effect on the private interest if further testing is not provided. Id. Obviously, there is a heavy interest involved when a person's life and liberty are at stake. In the instant case, the court provided defendant with one expert (Dr. Bindelglas) and the question is whether the court must provide more.

The second factor to consider is the effect on the state's interest. Id. In this case, ordering out-of-state testing would have been expensive and a burdensome security problem. The additional testing would have entailed transporting defendant out of state and keeping him under observation and under security for four to six weeks.

The third factor the Court considered in Ake was the probable value of the additional testing and "the risk of an erroneous deprivation of the affected interest" if the testing is not provided. Id. In this case no indication exists that further testing would have helped defendant prove his insanity defense. The risk of error is minimal given the fact that three expert witnesses testified that the defendant could not have been suffering from a seizure at the time of the killing. Although we can envision fact situations in which the state could be required to shoulder the burden of additional testing, in this case it is not necessary in light of the questionable value to the defendant. We find that the trial court did not err in denying defense counsel's motion for further diagnostic testing.

Defendant also claims that the denial of further medical tests violated the equal protection clause. We disagree. The United States Supreme Court has never held that equal protection requires the state to provide to an indigent defendant everything a wealthy person might be able to afford. Ross v. Moffitt, 417 U.S. 600, 612, 94 S.Ct. 2437, 2444-45, 41 L.Ed.2d 341 (1974) (states are not required to purchase for the indigent defendant all the assistance that his wealthier counterpart might buy); see San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 24, 93 S.Ct. 1278, 1291, 36 L.Ed.2d 16 (1973). We find no error.


At trial defendant planned on calling two prison inmates to testify on his behalf. The two inmates were both members of the Aryan Brotherhood, an organization that allegedly has a creed requiring its members to commit perjury, if necessary, to protect another member of the organization. Defendant claims the trial court erred in a pretrial ruling that the prosecutor could impeach the witnesses with evidence of their membership in the organization. Defendant claims that because of this ruling defense counsel...

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