State v. Walton, CR-87-0022-AP

Citation159 Ariz. 571,769 P.2d 1017
Decision Date02 February 1989
Docket NumberNo. CR-87-0022-AP,CR-87-0022-AP
PartiesSTATE of Arizona, Appellee, v. Jeffrey Alan WALTON, Appellant.
CourtSupreme Court of Arizona

Robert K. Corbin, Atty. Gen. by William J. Schafer III, Paul J. McMurdie, Asst. Attys. Gen., Phoenix, for appellee.

Harold L. Higgins, Jr., Pima County Public Defender, Tucson, for appellant.

HOLOHAN, Justice (Retired).

The defendant, Jeffrey Walton, was convicted of first degree murder, armed robbery, kidnapping, and theft by control for abducting, robbing and killing Thomas Powell. He was sentenced to death on the murder conviction and to prison terms on the noncapital felony convictions, to be served consecutively to the death sentence.

The facts developed at trial are that the defendant and his two codefendants, Robert Hoover and Sharold Ramsey, had planned to rob at gunpoint some "old man that was drunk," take his car, tie him up, and leave him in the desert area outside of Tucson while they fled from the state in his vehicle. Instead, they encountered a young marine, Thomas Powell, in a bar parking lot. They took his wallet and keys and forced him into his car with them. They then proceeded out of the city on Speedway Boulevard to Gates Pass where they pulled off the road in a secluded spot. Having no materials suitable for tying up Powell, they forced him to lie face down on the ground while they debated his fate. Ultimately, the defendant took the gun and marched Powell into the darkness, leaving the other two in the car. The defendant instructed the codefendants to "turn up the radio." After a short walk, the defendant again forced Powell to lie prone on the ground; he shot the victim once in the head and hurried back to the vehicle.

The victim had been rendered unconscious and blind by the shot, but he eventually regained consciousness. Weakened and hampered by his blindness, he floundered in the desert. Approximately a week after the shooting, the victim died from exposure and pneumonia.

Soon after the killing, the defendant asked David Bilodeau for dynamite to destroy the victim's car, explaining that he had killed someone and needed to dispose of evidence. Mr. Bilodeau promptly related this information to police who eventually arrested the trio. The defendant gave the police a statement and led them to the murder area where they found Powell's body less than a day after he had succumbed.

We have jurisdiction pursuant to art. 6, § 5(3) of the Arizona Constitution and A.R.S. § 12-102 and § 13-4031. We affirm the conviction of guilt and sentences on all counts.

The defendant presents twenty-seven issues for our review. For the sake of brevity, we consolidate those into the following issues:

I. Rule 11: Whether the defendant should have had greater opportunity to develop evidence of incompetence despite a pre-Rule 11 screening indicating no incompetence.

II. Election of Murder Theories: Whether the state should have elected between premeditated and felony murder theories.

III. Voluntariness of Statement: Whether the defendant had voluntarily rendered his statement to the police.

IV. Voir Dire: Whether the jury had been impermissibly tainted by pretrial publicity and the judge's comment at voir dire.

V. Evidence: Whether the judge erred in evidence admissibility rulings.

VI. Jury Instructions: Whether the judge erred in instructing the jury.

VII. Death Sentence: Whether the Arizona death penalty is unconstitutional, and it was properly applied by the trial court when sentencing the defendant to death.

VIII. Prison Term Sentences: Whether the trial court erred in imposing prison terms on the noncapital offenses consecutive to the death sentence, and whether the trial court erred in considering the impact of those offenses on the victim's family to aggravate the prison sentences.

IX. Ineffective Assistance of Counsel: Whether the defendant's attorney provided ineffective assistance.

I. RULE 11

Defendant first contends that the trial court erred when it denied his request for a Rule 11 competency evaluation and continuances to develop evidence of incompetency and insanity.

A. Rule 11 Evaluation

Rule 11.1, Arizona Rules of Criminal Procedure, provides that the state shall not try anyone who is "unable to understand the proceedings against him or to assist in his own defense." If a defendant appears incompetent, any party may request a competency examination. 17 A.R.S., Rules of Crim.Proc., Rule 11.2. Pursuant to Rule 11.3, if the trial court determines that reasonable grounds exist for an examination, mental health experts are appointed to examine the defendant. Prior to making the determination whether reasonable grounds exist, the trial judge may order a preliminary evaluation of the defendant. State v. Johnson, 147 Ariz. 395, 398-99, 710 P.2d 1050, 1053 (1985).

In the present case, the court ordered a preliminary evaluation of the defendant by Dr. Hinton, a psychologist with the Pima County Court Clinic. Dr. Hinton reported that the defendant displayed no signs of incompetence nor insanity. The trial court therefore concluded that there was no reasonable grounds for a Rule 11 examination. Under similar circumstances, we have held that the report of the psychologist was "more than sufficient ... to base a conclusion that defendant could assist in the preparation of his defense," hence the trial court did not abuse its discretion when it denied the motion for a Rule 11 examination. State v. Borbon, 146 Ariz. 392, 395, 706 P.2d 718, 721 (1985).

After the denial of the motion for mental examination, the defendant made several additional requests for a Rule 11 examination. However, the only showing made by the defense was the existence of a childhood history of psychiatric referrals and some blackouts caused by substance abuse. The trial court ruled, and we agree, that these matters were not relevant to show present incompetence to stand trial. Nonetheless, the defendant persistently argued that the trial court should treat amnesia and a history of substance abuse as evidence of incompetence. The trial court declined to accept the defense's theory. We find no abuse of discretion in the trial court's rulings.

In addition, the defendant also wanted a Rule 11 evaluation to provide him with evidence bearing on his insanity at the time of the offense. However, he never gave notice, as required by Rule 15.2(b), Ariz.R.Crim.P., that he would allege an insanity defense, nor did a subsequent mental examination conducted prior to sentencing disclose any basis for an insanity defense. The defense was not entitled to expert assistance on a defense he had no intention or basis to use. Therefore, we hold that the trial judge did not err by refusing to grant a Rule 11 examination.

B. Continuances

On several occasions, the defendant sought continuances to develop evidence of incompetence or insanity related to his history of substance abuse and speculated mental illness. The court granted the defense counsel's first motion for continuance to allow him additional time for trial preparation. The trial court also ordered a preliminary mental evaluation of the defendant. After the examination and report by Dr. Hinton, subsequent motions for continuances to develop evidence of insanity were denied.

As noted above, the defendant is not entitled to continuances to gather evidence of insanity when he has not sought an insanity defense. Moreover, because the evidence he hoped to develop during continuances (memory impairment) is immaterial to his present competency and guilt, People v. Amador, 200 Cal.App.3d 1449, 246 Cal.Rptr. 605 (1988), the trial judge did not abuse his discretion in denying the second and subsequent requests for continuances.

II. ELECTION OF MURDER THEORIES

Defendant next contends that the trial court erred when it refused to force the state to elect between premeditated and felony murder in trying him for first degree murder. The defense contends that the jury might have been confused by two theories, and defense counsel states that he encountered difficulty in preparing cross-examination strategy.

Initially we note that in State v. Encinas, 132 Ariz. 493, 647 P.2d 624 (1982), we held that first degree murder is a single crime whether it is tried on the ground of felony murder, premeditation, or both. Id., 132 Ariz. at 496, 647 P.2d at 627. Therefore, the state was not required to elect between the two methods of committing first degree murder.

We turn to the defendant's specific complaints. First, speculation about "potential confusion among jurors" is insufficient to establish actual jury confusion. Second, the defense counsel has not provided us with any legal authority that supports his proposition that due process should relieve him of the burden of complex trial strategies. Counsel cannot complain that preparing for felony murder as well as premeditated murder placed an undue burden on him when he had to prepare a defense against the felony charges alleged in the indictment, two of which were underlying felonies for the murder charge. He was not forced to choose between theories either, rather than simply prepare to defend against several theories. We therefore hold that the trial court did not err when it refused to order the state to elect to try the case on only one theory for first degree murder.

III. VOLUNTARINESS OF STATEMENTS

The defendant next contends that the trial court erred when it denied his motion to suppress statements he made during police interrogation. In support of his fifth amendment claim, defendant refers the court to three statements made by the detective:

1) "It's nothing that can't be worked out,"

2) "to lie isn't going to help," and

3) "Give yourself a chance."

He asserts that those statements constituted promises which overbore his will, rendering his subsequent confession involuntary.

To determine the voluntariness of a confession, the court must evaluate the "totality...

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