State v. Walden

• Decision Date: 10 October 1995
• Docket Number: No. CR-92-0530-AP,CR-92-0530-AP
• Citation: State v. Walden, 183 Ariz. 595, 905 P.2d 974 (Ariz. 1995)
• Parties: STATE of Arizona, Appellee, v. Robert Lee WALDEN, Jr., Appellant.
• Court: Arizona Supreme Court

Page 974

905 P.2d 974

183 Ariz. 595

STATE of Arizona, Appellee, v. Robert Lee WALDEN, Jr., Appellant.

No. CR-92-0530-AP.

Supreme Court of Arizona, In Banc.

Oct. 10, 1995.

[183 Ariz. 603] Grant Woods, Attorney General by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section, and Monica D. Beerling, Assistant Attorney General, Phoenix, for State.

Susan A. Kettlewell, Pima County Public Defender by Frank P. Leto and John F. Palumbo, Deputy Public Defenders, Tucson, for Robert Lee Walden.

OPINION

MARTONE, Justice.

Robert Walden was found guilty of first-degree murder, four counts of sexual assault, two counts of sexual abuse, one count of aggravated assault, two counts of dangerous kidnapping, one count of kidnapping, one count of dangerous burglary, one count of burglary, and one count of robbery. He was sentenced to death on the murder conviction and to prison terms on the noncapital convictions. Appeal to this court is automatic. See Rules 26.15 and 31.2(b), Ariz.R.Crim.P.; A.R.S. § 13-4031. We affirm the convictions and the sentences.

BACKGROUND

During the spring and summer of 1991, Walden worked for Arizona Chemical Company, a termite and pest control service for residential homes and apartments in Tucson. Walden gained access to the three victims here while out on the job.

A. Vicki

On May 4, 1991, Vicki arrived at her friend's apartment and noticed Walden standing near the swimming pool. She knocked on the door, but there was no answer. She went back to her car, waited a few minutes, and tried again. There was still no answer. As she turned to leave, Walden ran up behind her, shoved a knife against her throat, and threatened to kill her if she did not walk with him.

Walden forced Vicki into the community laundry room and ordered her to take off her clothes. She refused. Walden unzipped his pants and instructed Vicki to perform fellatio on him. She refused. Walden then grabbed Vicki and forcibly removed her clothing. Holding the knife against her neck, he touched her breasts and had forcible intercourse.

Afterwards, Walden left the laundry room but told Vicki that he would come back and kill her if she left. Walden left and returned twice. After he left the third time, Vicki ran to her car. She drove home and told her boyfriend she had been raped. Vicki went to the emergency room for examination and treatment. Analysis of the semen stains on Vicki's clothes could not exclude Walden as the rapist.

B. Kristina

On May 15, 1991, Walden knocked on Kristina's door. Dressed in blue pants and a red shirt, Arizona Chemical Company's work uniform, he told Kristina he was there to work on the plumbing. Kristina was not suspicious because she believed her pipes were leaking.

Once inside, Walden asked Kristina to accompany him upstairs. This aroused Kristina's suspicions so she began to call a friend. Walden grabbed her from behind and threatened to kill her if she screamed. He then grabbed the telephone out of Kristina's hands and tried to wrap the cord around her neck. She struggled, and he dropped the phone. He then dragged her into the downstairs bathroom. Walden grabbed Kristina's hairdryer and unsuccessfully tried to wrap the cord around her neck.

Walden then dragged Kristina into the living room. She almost escaped, but Walden managed to grab her and kick the door closed. Walden dragged her upstairs, and said "I'm going to kill you. I can do it." Walden forced Kristina to kneel on the bedroom floor where he tied her arms behind her back with a telephone cord. He then blindfolded her, pushed her to the floor, and gagged her. He ripped open her shirt and bra and pulled off her shoes and jeans. Walden touched Kristina's breasts, digitally penetrated her, and had forcible intercourse.

After the assault Walden retied Kristina's hands, which she had freed while she struggled, and bound her feet. He then told her that he knew everything about her and would kill her if she reported the rape. He went downstairs where Kristina heard him walking around the apartment and his keys jingling on his holder. Walden returned to the bedroom, ran an object down her back, told her it was a knife, and asked her if she wanted to "feel it harder." He left the bedroom again. Kristina heard the front door open and close. But Walden walked back into the bedroom, laughed, and said, "I'm not gone yet, dummy, I'm still here. I'm watching you."

When Walden finally left the apartment, Kristina managed to unbind herself, get dressed, and run to the manager's office. She was taken to the emergency room where an examination revealed abrasions on her face, back, and wrists. Analysis of the semen stains on her clothes could not exclude Walden as the rapist.

C. Miguela

On June 13, 1991, at about 1:30 p.m., Elaine Jordan saw Walden at the Desert Sage apartment complex, which is next to the complex where he assaulted Kristina and near his own apartment. Elaine assumed he was an apartment maintenance man because he was wearing a uniform and carrying equipment.

Shortly after 2:30 p.m., Miguela's husband returned home from work to their apartment at Desert Sage and found the front door open. He went inside and found Miguela lying face down in the bedroom in a pool of blood, unclothed from the waist down. Miguela had died from a combination of manual and ligature strangulation and at least two deep cuts on her throat. She had been hit on the head with a blunt instrument and had several bruises and blunt force injuries on her arms, legs, and mouth. She had "scraping injuries" on her neck and chest. The pathologist also found semen in Miguela's vaginal canal, the examination of which could not exclude Walden as the source. The police found Walden's fingerprint on the nightstand in Miguela's bedroom.

D. Imposition of the Death Penalty

Nine jurors found Walden guilty of both premeditated murder and felony murder, while three jurors found Walden guilty of felony murder only. At sentencing, the court found the following aggravating factors: (1) Walden had been convicted of another offense for which life imprisonment was imposable, A.R.S. § 13-703(F)(1); (2) Walden had been convicted of a felony involving the use or threat of violence, A.R.S. § 13-703(F)(2); and (3) Walden committed the murder in an especially cruel, heinous, or depraved manner, A.R.S. § 13-703(F)(6). The court found no mitigation sufficiently substantial to call for leniency and sentenced him to death.

ISSUES

A. Trial

1. Did the trial court abuse its discretion by denying Walden's motion to sever?

2. Did the trial court abuse its discretion by allowing Vicki, Kristina, and Elaine Jordan to identify Walden at trial?

3. Did the trial court abuse its discretion by refusing to dismiss counts five through ten because of missing evidence?

4. Did the trial court deny Walden a fair and impartial jury because of error in voir dire?

5. Did the trial court err by admitting Walden's post-arrest statements?

6. Did the trial court abuse its discretion by admitting photographs of the murder victim?

7. Did the trial court abuse its discretion by admitting two 911 tapes?

8. Did the trial court abuse its discretion by excluding evidence of other sexual assaults committed in Tucson while Walden was in police custody?

9. Did the trial court abuse its discretion by limiting the cross-examination of Vicki?

10. Did the trial court err by failing to declare a mistrial after a juror received a phone call?

11. Did the trial court give inadequate jury instructions?

B. Sentencing

1. Has Walden been convicted of another offense for which a sentence of life or death was imposable? A.R.S. § 13-703(F)(1).

2. Has Walden been convicted of a felony that involves the use or threat of violence? A.R.S. § 13-703(F)(2).

3. Did Walden commit the murder in an especially cruel, heinous, or depraved manner? A.R.S. § 13-703(F)(6).

4. Did the trial court adequately consider and weigh all mitigating evidence?

5. Did the trial court erroneously receive information about other court proceedings involving Walden?

6. Did the state fail to disclose mitigating evidence in violation of Brady v. Maryland ?

7. Was there prosecutorial misconduct?

8. Was Walden entitled to a jury finding of aggravation?

9. Were the Enmund/Tison requirements met?

C. Waived Issues

Opening briefs in capital cases are limited to eighty pages. See Rules 31.13(b)(1) and 31.13(f), Ariz.R.Crim.P. Walden filed a 103-page opening brief, which we rejected. Walden's second opening brief was within the eighty-page limit, but he attached much of the excised portion of the original brief as an "appendix." This is improper under our rules. See Rule 31.13(c)(4), Ariz.R.Crim.P. (appendices may contain only pertinent authorities and extended quotations therefrom). Although Walden lists nineteen headings within the body of the brief attacking the constitutionality of Arizona's death penalty scheme, the text of each argument is contained in the "appendix." We have condemned this manipulation of a brief's format. State v. Bolton, 182 Ariz. 290, 896 P.2d 830, 838 (1995); State v. Cruz, 175 Ariz. 395, 400, 857 P.2d 1249, 1254 (1993). Argument must be in the body of the brief. We therefore strike the text contained in the appendix of Walden's opening brief. All of these issues, which we list in our Appendix, are waived.

If counsel believes an issue must be raised to avoid preclusion, he or she "should discuss them only briefly." Cruz, 175 Ariz. at 401, 857 P.2d at 1255. A brief argument must be in the body of the brief. A list of issues in the brief is not adequate. Nor may the argument be in the appendix. See id.

DISCUSSION

Trial Issues

I. Severance

The trial court denied Walden's motion to sever the counts for each of the three victims. Walden argues that joinder was proper only under RULE 13.3(A)(1), ARIZ.R.CRIM.P¹., and he was thus entitled to severance as a matter of right under Rule 13.4(b), Ariz.R.Crim.P. ² The state argues that...