State v. Wagner

• Citation: 976 P.2d 250,194 Ariz. 1,275 Ariz. Adv. Rep. 37
• Decision Date: 13 August 1998
• Docket Number: No. 1CA-CR,1CA-CR
• Parties: 275 Ariz. Adv. Rep. 37 STATE of Arizona, Appellee, v. Charles Vincent WAGNER, Jr., Appellant. 97-0092.
• Court: Arizona Court of Appeals

Page 250

976 P.2d 250

275 Ariz. Adv. Rep. 37

STATE of Arizona, Appellee, v. Charles Vincent WAGNER, Jr., Appellant.

No. 1CA-CR 97-0092.

Court of Appeals of Arizona,

Division 1, Department E.

Aug. 13, 1998.

Review Granted April 12, 1999.

Grant Woods, The Attorney General By Paul J. McMurdie, Chief Counsel Criminal Appeals Section and Diane M. Ramsey, Assistant Attorney General, Phoenix, for Appellee.

Dean W. Trebesch, Maricopa County Public Defender By James R. Rummage, Deputy Public Defender, Phoenix, for Appellant.

OPINION

SULT, Presiding Judge.

¶1 Charles Vincent Wagner, Jr. ("appellant") appeals from his convictions and sentences for first degree murder and attempted armed robbery. For the following reasons, we affirm.

BACKGROUND

¶2 In June 1994, four teenagers, Damon Bellamy, Jason Miller, Mike Gibson, and appellant, went to a Smitty's grocery store to steal either a purse or an automobile. Appellant was armed with a .380 semi-automatic pistol and Gibson was armed with a .22 revolver. When they arrived at the grocery store parking lot, Bellamy and Miller went to one area of the lot while appellant and Gibson went to another.

¶3 After about forty minutes, appellant noticed Mrs. F. ("the victim") placing her groceries in her car. As the victim returned her shopping cart to the cart return area, appellant signaled to the others that he was going to rob her. With Gibson close behind, appellant jogged to the victim's car and pulled the driver's door open just before the victim closed it. Appellant struck the victim with either the gun or his fist, and the victim fell onto the passenger seat. When the victim screamed, appellant shot her several times. The victim managed to get out of the car, call for help, and walk towards the grocery store before collapsing and dying in the parking lot.

¶4 The teenagers fled the scene. Miller went to a nearby restaurant while appellant, Bellamy, and Gibson ran to the home of their friend, Robert Wagner. Appellant told Robert that he had "just popped some old lady at Smitty's." Robert observed appellant wiping his fingerprints from a .380 pistol, and listened as appellant explained that his gun accidently discharged while he was "jack[ing][a] lady for her car." Appellant said he "panicked" after the initial shot and "just unloaded the clip on her and ran."

¶5 Appellant was soon apprehended and charged as a juvenile. The juvenile court transferred appellant for trial in adult court on charges of first degree murder and attempted armed robbery. Appellant's first trial ended in a mistrial when the jury deadlocked.

¶6 At the second trial, appellant was convicted on both counts. The state had requested the death penalty, and the trial court therefore conducted a sentencing hearing and made extensive findings regarding aggravating and mitigating factors. After weighing those factors, the trial court found it inappropriate to impose the death penalty, and instead sentenced appellant to life imprisonment without the possibility of release on the murder charge ("natural life"), and to a consecutive seven and one-half year term on the attempted armed robbery charge. Appellant timely appealed.

ISSUES

¶7 Appellant argues that his natural life sentence must be vacated because the portion of Arizona Revised Statutes Annotated ("A.R.S.") section 13-703(A) (Supp.1997) which authorizes its imposition is constitutionally infirm under the Eighth and Fourteenth Amendments to the United States Constitution. ¹ Appellant also argues that his convictions must be reversed because the trial court admitted autopsy photographs of the victim that unfairly prejudiced the jury.

ANALYSIS

I. The Natural Life Sentence and Sentencing Guidelines

¶8 Section 13-703(A) provides the trial court with discretion to impose either the death penalty or life imprisonment when a defendant is found guilty of first degree murder. In deciding whether the death penalty is appropriate, the trial court must hold a sentencing hearing to determine and weigh aggravating and miti-gating circumstances.

A.R.S. §§ 13-703(B),(E),(F),(G) (Supp.1997). If the court determines that a death sentence is not appropriate, it must impose a life sentence. A.R.S. § 13-703(A). In doing so, the court has the discretion to impose either a natural life term or life with possibility of release after serving a specified number of years. Id.

¶9 Appellant focuses on the fact that in exercising this discretion regarding the life sentencing options, the legislature has not provided the court with any guidelines directing how it is to choose between the options. Appellant contrasts this with the sentencing procedure required for all other offenders facing sentencing for a felony. Under this procedure, A.R.S. section 13-701 (Supp.1997) establishes five classes of felonies, with a term of imprisonment presumed to be appropriate for each class of felony. A.R.S. sections 13-702, 13-702.01 and 13-702.02 (Supp.1997) permit the sentencing judge to impose a term greater than the presumptive up to a specified maximum, or a term less than the presumptive down to a specified minimum, upon a finding and weighing of statutorily defined aggravating or mitigating circum stances. This scheme is also applied to sentencings for second degree murder, a class 1 felony. See A.R.S. §§ 13-710, 13-1104 (Supp.1997).

¶10 Appellant describes this sentencing scheme as one providing guidelines which objectively circumscribe the sentencing judge's discretion and result in comparable sentences for felons similarly situated. However, this guideline approach is not available for felons convicted of first degree murder but not sentenced to death. Appellant asserts that this lack of circumscribed discretion permits the sentencing judge to make an arbitrary choice between the two life sentences to which such offenders are subject. According to appellant, this constitutes a violation of both the Due Process and Equal Protection Clauses of the Fourteenth Amendment and the Eighth Amendment prohibition of cruel and unusual punishment. We address each argument in turn. ²

A. Due Process

¶11 The first prong of appellant's due process analysis asserts that the sentencing judge's "unfettered" discretion in selecting a life sentence option renders that portion of section 13-703(A) void for vagueness. The vagueness doctrine essentially provides that a person cannot be liable for conduct he could not reasonably have known was a violation of the law. See Colautti v. Franklin, 439 U.S. 379, 390, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979). The doctrine is directed at statutes which may suffer from either of two vices. First is a statute that fails to give a person of ordinary intelligence fair notice that contemplated conduct is forbidden. Id. Second is a statute so indefinite that " 'it encourages arbitrary and erratic arrests and convictions.' " Id. (quoting Papachristou v. Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972)). While appellant is not precise as to exactly how section 13-703(A) violates the vagueness doc-trine, we presume that he is arguing that the lack of sentencing guidelines encourages an arbitrary and discriminatory selection of a life sentencing option.

¶12 Appellant's argument is misfocused. The vagueness doctrine is aimed at laws that require or proscribe conduct. United States v. Wivell, 893 F.2d 156, 159 (8th Cir.1990). However, the challenged portion of section 13-703(A) has nothing to do with directing or prohibiting the conduct of the citizens of Arizona. Rather, it directs the sentencing function of a judge. As such, section 13-703(A) is not subject to analysis under the vagueness doctrine. See Wivell, 893 F.2d at 159-60 (holding that federal sentencing guidelines do not define illegal conduct but are directives to sentencing judge, not citizens at large, and are thus not susceptible to a vagueness attack); see also Woods ¶13 Appellant's second due process argument is that his fundamental liberty interest is at stake and thus procedural due process requires that sentencing guidelines be included as part of the sentencing process in all instances. The question created by this argument is whether the inclusion of guidelines as part of the sentencing process is required in order to ensure that the sentencing procedure is fundamentally fair.

v. State, 315 Md. 591, 556 A.2d 236, 241-42 n. 4 (Md.App.1989) (questioning whether vagueness doctrine covers alleged lack of statutory specificity as to sentencing procedures).

¶14 Most courts that have considered this argument in a similar context have summarily found no procedural due process right to sentencing guidelines. See, e.g., Vines v. Muncy, 553 F.2d 342, 346-47 (4th Cir.1977) (holding that when a state chooses not to require precise criteria in jury sentencing, nothing in the Due Process Clause intrudes upon that choice); Wicks v. State, 270 Ark. 781, 606 S.W.2d 366, 368 (Ark.1980) ("[W]e adhere to our view that such guidelines are unnecessary except in capital cases."); Goff v. State, 515 N.E.2d 1121, 1123 (Ind.1987) (holding that there is no lack of due process in permitting sentencing judge to choose between life sentence or term of years, notwithstanding there were no statutory guidelines to aid court in choice); Woods, 556 A.2d at 242 ("In the absence of statutory mandates, nothing in the law requires that Guideline sentences or principles be applied; they complement rather than replace the exercise of discretion by the trial judge."). At least one court, however, has gone a step further and extensively analyzed whether procedural due process requires sentencing guidelines.

¶15 In Britton v. Rogers, 631 F.2d 572 (8th Cir.1980), a habeas appeal, the defendant had been convicted of rape and sentenced to a life term by an Arkansas jury pursuant to a statute which permitted a sentence of thirty years to life. Id. at 578. The jury had not been instructed on any guidelines which would direct...