State v. Vickers, 4765
| Decision Date | 01 June 1981 |
| Docket Number | No. 4765,4765 |
| Citation | 633 P.2d 315,129 Ariz. 506 |
| Parties | STATE of Arizona, Appellee, v. Robert Wayne VICKERS, Appellant. |
| Court | Arizona Supreme Court |
Michael F. Beers, Casa Grande, and Harry Bagnall, Coolidge, for appellant.
Defendant, Robert Wayne Vickers, was convicted by a jury on 21 June 1979 of first degree murder in violation of A.R.S. § 13-1105(A)(1). Following an aggravation-mitigation hearing, defendant was sentenced to death pursuant to A.R.S. § 13-703. Defendant now appeals both conviction and sentence. We have jurisdiction pursuant to A.R.S. §§ 13-4031 and 13-4035.
Defendant raises seven issues on appeal:
1. Did the trial court improperly admit photographs of the corpse?
2. Were the statements made by defendant to Kent Spillman, a Psychology Associate II, improperly introduced into evidence?
3. Did the State present sufficient evidence to prove defendant sane beyond a reasonable doubt?
4. Did the trial court err in failing to instruct the jury on lesser included offenses?
5. Was defendant deprived of effective assistance of counsel?
6. Is former A.R.S. § 13-703, the death penalty statute in effect between 1 October 1978 and 30 April 1979 unconstitutional?
7. Was the death penalty properly imposed?
The facts necessary to a determination of these issues are as follows. Inmates Frank Ponciano and defendant had shared the same cell, F-9 in Cell Block 3 of the Arizona State Prison, for approximately a week and a half prior to 3 October 1978. On 3 October, defendant missed lunch because he overslept. When defendant got up he was angry with Ponciano because Ponciano had failed to wake him for lunch and had drunk defendant's Kool-Aid.
At 2:00 a. m. on 4 October 1978, a correctional officer made a check of the cells in Cell Block 3 and observed that defendant and Ponciano were awake. Correction Service Officer Neal Malone was making the 5:00 a. m. check when defendant attracted his attention. Defendant then stated, "Get When Officer Malone's superiors arrived, defendant was removed from the cell, strip searched, and placed in another cell. Ponciano's body was then examined in greater detail. Bruise marks encircled the neck, and the cuts and puncture wounds had bled only slightly. The body was warm to the touch. According to the autopsy report, the cause of Ponciano's death was manual and ligature strangulation.
this stinking son of a bitch out of my cell." Asked what was wrong, defendant responded by sticking a lit cigar into the sole of one of Ponciano's feet, and by saying, "I think he died last night." Since Ponciano's body had not reacted to the burning cigar, Officer Malone ordered the defendant to remove the blanket covering Ponciano. The officer noticed numerous (10 to 12) puncture wounds in Ponciano's back and sides, and cuts in Ponciano's back spelling out the word "Bonzai," defendant's prison nickname. Officer Malone then informed his superiors of his situation.
Within the cell the officers found a strip of cloth torn from a sheet with a knot in it. A yellow toothbrush with the handle melted into a point and stained red was discovered in defendant's property box.
Sometime later in the morning of 4 October 1978, defendant was informed of his Miranda rights and interrogated. Defendant stated it was possible that he killed Ponciano, but that he remembered nothing about the killing. Defendant was reinterviewed on 16 October 1978 by the officers. Defendant admitted that the sight of blood made him feel good, and that he would kill any cellmate.
On 17 October 1978, defendant was indicted for the first degree murder of Frank Ponciano. After being found competent to stand trial, defendant was tried and convicted. Defendant was sentenced to death by Judge Robert R. Bean on 13 August 1979. Defendant now appeals both the conviction and sentence.
Defendant asserts that three color photographs of Ponciano's body were improperly admitted into evidence because they were so gruesome as to inflame the passions of the jury. See State v. Steele, 120 Ariz. 462, 586 P.2d 1274 (1978); Rule 403, Arizona Rules of Evidence, 17A A.R.S. The first picture, Exhibit 16, showed the word "Bonzai" carved on the victim's back. The second picture, Exhibit 21, showed the bruises around the victim's neck where he had been strangled, and the third picture, Exhibit 24, showed the puncture marks on the side of the body. There was not a great deal of blood. The victim's face was not shown. Though in color and somewhat vivid, they were not particularly gruesome and, in our opinion, not so inflammable as to prejudice the average person. We have stated:
State v. Gretzler, 126 Ariz. 60, 86, 612 P.2d 1023, 1049 (1980).
Reasons for admission are to identify the victim, to illustrate how the crime was committed, to aid the jury in understanding testimony, and to show the location of wounds. State v. Clark, 126 Ariz. 428, 616 P.2d 888, cert. denied --- U.S. ----, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980); State v. Ferrari, 112 Ariz. 324, 541 P.2d 921 (1975).
In the present case, the photographs showed the location of wounds and illustrated how the crime was committed. Additionally, the trial judge excluded photographs that duplicated those admitted. But most importantly, the photographs aided the jury in determining the issue of defendant's sanity. Defendant relied on an insanity defense, specifically arguing that Ponciano was killed while defendant was suffering an epileptic seizure. A psychiatrist, Dr. Otto L. Bendheim, testified in the State's case-in-chief that while it is "possible" to strangle a person during an epileptic seizure, and possible though "unlikely" that an epileptic could stab the same person, it is "inconceivable" that an epileptic in a seizure could write intelligible letters because writing is a "purposeful act." Thus, the most offensive of the photographs which showed the cuts in Ponciano's back aided the jury in determining whether the killing was done during an epileptic seizure. We find no abuse of discretion in the trial judge's ruling.
Defendant asserts that the trial court improperly admitted statements made by defendant to Kent Spillman, a Psychology Associate II working at the Arizona State Prison. At approximately 3:30 p. m. on 4 October 1978, the day of the killing, Spillman conducted a mental status examination of defendant at the request of the institutional administrator of the prison.
At the beginning of the interview, defendant asked Spillman if the interview was being taped. Spillman showed defendant an unplugged tape recorder and informed him that it would be illegal to tape the interview. Apparently reassured, defendant described the murder of Ponciano to Spillman.
Spillman testified to the ensuing conversation at trial:
And he said: Do you mean premeditated?
And I said: Yes.
Defendant stated he was mad at the victim because the victim did not awaken the defendant for lunch and because the victim drank defendant's Kool-Aid. Defendant told how he "got things ready" after the guard made the 3:30 a. m. walk through, how he made the garrote from the torn bed sheet, and how he choked the victim and stabbed him. Spillman testified further:
Defendant contends that admitting the statements made to Spillman was error for two reasons. First, defendant asserts the statements were confidential communications protected by the physician-patient privilege. Second, defendant asserts that Spillman's failure to inform defendant of his constitutional rights violates Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
At trial, defendant did not object to the introduction of Spillman's testimony on the basis of privilege, but rather limited the grounds of his objection to the failure in giving Miranda warnings. While we have stated that "raising one objection at trial does not preserve another objection on appeal," State v. Long, 119 Ariz. 327, 328, 580 P.2d 1181, 1182 (1978), we will consider a matter on appeal not raised below if it is a matter of fundamental error. As to the admission of statements made to a psychiatrist appointed by the court to determine if a defendant was competent to stand trial, we have stated:
" * * * To allow this information to be admitted without defendant's consent would have a chilling effect on the honest and free flow of information between the doctor and patient while the patient is being examined as to his competency to stand trial." State v. Magby, 113 Ariz. 345, 351, 554 P.2d 1272, 1278 (1976). (emphasis supplied) If Spillman had been a psychiatrist and was examining defendant for competency, the privilege would apply. Magby, supra. Spillman was not a psychiatrist. He was a psychologist employed by the Department of Corrections and worked at the ...
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State v. Rodriquez
...the exhibit. We agree. The trial court has broad discretion in admitting or excluding arguably gruesome photographs. State v. Vickers, 129 Ariz. 506, 633 P.2d 315 (1981). In this case, the exhibit was neither gruesome nor so inflammatory as to prejudice the average person. In addition, the ......
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State v. West
...lesser included offenses to the crime charged that are factually supported by the evidence. Id.; see also State v. Vickers, 129 Ariz. 506, 513, 633 P.2d 315, 322 (1981). Even assuming the factual applicability of lesser included offenses in this case if premeditation had gone to the jury, B......
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...cert. denied sub nom. Clark v. Lewis, --- U.S. ----, 113 S.Ct. 117, 121 L.Ed.2d 73 (1992). On the other hand, in State v. Vickers, 129 Ariz. 506, 516, 633 P.2d 315, 325 (1981), the Arizona Supreme Court said section 13-703 of the Arizona Revised Statutes does not require a trial court to ma......
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