State v. Wallace

• Decision Date: 22 August 2008
• Docket Number: No. CR-05-0149-AP.,CR-05-0149-AP.
• Citation: 191 P.3d 164,219 Ariz. 1
• Parties: STATE of Arizona, Appellee, v. James Granvil WALLACE, Appellant.
• Court: Arizona Supreme Court

191 P.3d 164

219 Ariz. 1

STATE of Arizona, Appellee, v. James Granvil WALLACE, Appellant.

No. CR-05-0149-AP.

Supreme Court of Arizona, En Banc.

August 22, 2008.

Terry Goddard, Arizona Attorney General, Phoenix, by Kent E. Cattani, Chief Counsel, Capital Litigation Section, Lacey Stover Gard, Assistant Attorney General, Tucson, Attorneys for State of Arizona.

Arizona Capital Representation Project, by Jennifer Bedier and Law Office of Carla G. Ryan, by Carla G. Ryan, Tucson, Attorneys for James Granvil Wallace.

OPINION

HURWITZ, Justice.

¶ 1 James Granvil Wallace pleaded guilty to three counts of first-degree murder and was sentenced to death on each count. This is an automatic appeal from those sentences. See Ariz. R.Crim. P. 31.2(b). We have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 13-4031 (2001).

I.

¶ 2 Wallace lived with Susan Insalaco, his girlfriend, and her two children, sixteen-year-old Anna and twelve-year-old Gabriel, in Susan's home in Pima County. During their on-again-off-again relationship, Wallace and Susan fought about his drinking and drug use. On January 31, 1984, Wallace came home drunk, and Susan told him to move out. The next day, Susan left for work, and Anna and Gabriel left for school. Wallace woke up around 10:00 a.m., but did not leave the house.

¶ 3 When Anna returned from school around 2:45 p.m., Wallace was hiding behind the front door with a small wooden baseball bat. He struck Anna in the head from behind, and she fell to the ground, but continued breathing and moaning. He struck her in the head ten to twelve more times. Anna was still alive; Wallace then dragged her into the bathroom and hit her until the bat broke. He then drove the broken bat into her throat until the bat hit the floor.

¶ 4 Wallace got a pipe wrench to kill Gabriel because he "didn't want him to suffer like [Anna]." Gabriel arrived around 3:00 p.m. and walked into his bedroom. Wallace followed and hit Gabriel in the head with the wrench. Gabriel fell to the floor, and Wallace hit him in the head ten to twelve more times.

¶ 5 After killing Gabriel, Wallace retrieved Susan's .22-caliber handgun from a closet and loaded it in order to commit suicide, but could not bring himself to do so. Susan came home from work around 5:00 p.m. After she set groceries down in the kitchen, Wallace hit her in the head with the pipe wrench. She fell, and Wallace hit her three or four more times. Wallace told the police that he did not use the gun to kill Susan because the neighbors might hear the noise.

¶ 6 Wallace grabbed some clothing and took about ten dollars from Susan's purse. He then drove to a friend's apartment, where he spent the night. Wallace told the friend about the murders the next morning, February 2, 1984.

¶ 7 Wallace then called the Tucson police and reported, "I just killed three people and I want you to come get me." The police picked up Wallace outside the friend's apartment shortly thereafter. In a series of statements, Wallace admitted to the murders, but could not explain why he committed them.

II.

¶ 8 Wallace pleaded guilty to three counts of first-degree murder and two counts of armed robbery. In 1985, a superior court judge found that each murder was committed in an especially heinous, cruel, or depraved manner. A.R.S. § 13-703(F)(6) (1984).¹ He also found that Susan was murdered for pecuniary gain. A.R.S. § 13-703(F)(5). The judge found one mitigating circumstance, "genuine remorse," A.R.S. § 13-703(G), but concluded it was not sufficiently substantial to call for leniency and sentenced Wallace to death for each murder. Wallace received concurrent twenty-one-year sentences for the armed robberies.

¶ 9 On appeal, this Court vacated the armed robbery convictions, State v. Wallace (Wallace I), 151 Ariz. 362, 366, 728 P.2d 232, 236 (1986), and set aside the pecuniary gain aggravator, id. at 368, 728 P.2d at 238. The Court also found that the cruelty prong of the (F)(6) aggravator had not been established, but held that the murders were gratuitously violent and therefore especially heinous and depraved. Id. at 367, 728 P.2d at 237. The death sentences for the murders of Anna and Gabriel were affirmed; the case was remanded to the superior court for resentencing for Susan's murder. Id. at 370, 728 P.2d at 240.

¶ 10 On remand, the court again sentenced Wallace to death for Susan's murder. Wallace filed a petition for post-conviction relief, alleging, among other things, ineffective assistance of counsel. Ariz. R.Crim. P. 32. The trial court dismissed the Rule 32 petition.

¶ 11 The direct appeal of the death sentence for Susan's murder was consolidated with review of the denial of Rule 32 relief. State v. Wallace (Wallace II), 160 Ariz. 424, 425, 773 P.2d 983, 984 (1989). This Court upheld the dismissal of the Rule 32 petition, id. at 426, 773 P.2d at 985, and affirmed the death sentence, id. at 428, 773 P.2d at 987.

¶ 12 Wallace filed a petition for a writ of habeas corpus in federal district court, which denied relief. On appeal, the Ninth Circuit remanded for an evidentiary hearing, holding that Wallace had made a prima facie showing of ineffective assistance of counsel at the penalty phase of his sentencing. Wallace v. Stewart (Wallace III), 184 F.3d 1112, 1117-18 (9th Cir.1999). On remand, the district court found that Wallace had received ineffective assistance of counsel and ordered new sentencing proceedings.

¶ 13 A sentencing trial was held before a jury in March 2005.² The jury found that Wallace committed the murders in an especially heinous and depraved manner and that evidence of mitigation was insufficient to warrant leniency. He was again sentenced to death on each of the three counts.

III.

¶ 14 Wallace raises a number of issues on appeal. We focus initially on his contention that the superior court erred in instructing the jury on gratuitous violence.

A.

¶ 15 In the aggravation phase, the jury was instructed, over Wallace's objection, that "[i]n deciding whether the defendant inflicted gratuitous violence, you may consider whether the defendant had available less violent alternatives to cause death." We determine de novo whether a jury instruction correctly states the law. State v. Tucker, 215 Ariz. 298, 310 ¶ 27, 160 P.3d 177, 189 (2007).

1.

¶ 16 In Wallace I, this Court said,

We believe ... that [Wallace's] actions clearly amount to "gratuitous violence." Had defendant's intent been merely to kill these people, less violent alternatives were readily available to him. Specifically, defendant admits to having had a loaded gun with him that afternoon. He deliberately chose not to use it, however, because the noise would alert neighbors.

151 Ariz. at 367-68, 728 P.2d at 237-38 (internal citation omitted). This language was repeated virtually verbatim in Wallace II. 160 Ariz. at 427-28, 773 P.2d at 986-87.

¶ 17 Only one Arizona case other than Wallace I and II directly addresses whether gratuitous violence can be premised on the availability of a less violent means of causing death. In State v. Styers, the prosecution alleged that the murder was gratuitously violent because the defendant used hypervelocity bullets. 177 Ariz. 104, 115, 865 P.2d 765, 776 (1993). This Court rejected the argument, "find[ing] no evidence that defendant used these particular bullets because he wanted or intended to inflict greater damage to the victim." Id. Thus, no case other than Wallace I and II has relied upon the less violent means theory to support a finding of gratuitous violence.³

2.

¶ 18 The instruction in this case allowed the jury to find gratuitous violence simply because a less violent means of murder was in some way "available." The instruction did not require proof that the defendant intentionally chose one murder weapon over another. Thus, the jury could have found the (F)(6) aggravator because the gun was in the house at the time the victims were murdered, without regard to whether Wallace thought about using it. We have recently emphasized that "[h]einousness and depravity refer to the mental state and attitude of the perpetrator." State v. Bocharski, 218 Ariz. 476, ___ ¶ 83, 189 P.3d 403, 420 (2008) (quoting State v. Jones, 205 Ariz. 445, 449 ¶ 15, 72 P.3d 1264, 1268 (2003)). This state of mind cannot be established without proof that the defendant at least considered and then rejected the "less violent" alternative. The jury here was not so instructed.

¶ 19 Moreover, the instruction given below did not require that the defendant intend to inflict greater violence by forgoing the use of an alternative weapon. We have long stressed that "the statutory concepts of heinous and depraved involve a killer's vile state of mind at the time of the murder." State v. Gretzler, 135 Ariz. 42, 51, 659 P.2d 1, 10 (1983). The requirement in Styers that the defendant must intend to inflict greater violence by intentionally choosing one weapon over another is aimed at proof of precisely such a state of mind. The instruction here, in contrast, would allow a finding of the (F)(6) aggravator without such a showing and thus was erroneous under our case law defining gratuitous violence.

3.

¶ 20 Because Wallace objected to the erroneous instruction, we review for harmless error. State v. Henderson, 210 Ariz. 561, 567 ¶ 18, 115 P.3d 601, 607 (2005). Under this standard, the State must "prove beyond a reasonable doubt that the error did not contribute to or affect the verdict." Id.

¶ 21 The State has not met this burden. The challenged instruction played a significant role in the State's closing argument and rebuttal. The prosecutor repeatedly focused on the instruction, asking the jury to find gratuitous violence because Wallace could have killed each victim with "[o]ne shot to the head." See State v. Anthony, 218 Ariz. 439, ___ ¶ 40, 189 P.3d 366, 373 (2008) (declining to find harmless error when allegation of prior bad act was repeated theme of...