State v. West, CR-88-0286-AP

CourtSupreme Court of Arizona
Citation862 P.2d 192,176 Ariz. 432
Docket NumberNo. CR-88-0286-AP,CR-88-0286-AP
PartiesSTATE of Arizona, Appellee, v. Thomas Paul WEST, Appellant.
Decision Date30 September 1993
OPINION

MOELLER, Vice Chief Justice.

STATEMENT OF THE CASE

Thomas Paul West (defendant) was convicted by a jury of first degree felony murder, second degree burglary, and theft. He was sentenced to death for murder and to concurrent 10 year terms for burglary and theft, to be served "consecutively" to the death sentence. This is an automatic appeal pursuant to A.R.S. § 13-4031 and Ariz.R.Crim.P. 26.15 and 31.2(b). We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. §§ 13-4031, 13-4033.

FACTS

Defendant came to Phoenix from Illinois in June of 1987. He first stayed with his friends Scott and Lisa at their Glendale apartment and later went to Tucson to stay with Polly, another friend. Polly worked at a Circle K in Tucson and was acquainted with the victim, who was a regular customer. The victim told Polly's boss that he had several items for sale. Polly was interested in purchasing a VCR and, on June 26, 1987, using a map that the victim had given her boss, she and defendant went to the victim's home.

The victim had a large amount of electronic equipment for sale. Polly and defendant spent more than an hour at victim's home viewing the items for sale and talking with the victim. Polly bought a VCR, a video camera, and a typewriter.

Two-and-a-half weeks later, defendant showed up at Scott and Lisa's Glendale apartment. Lisa told defendant to come back later because Scott was sleeping. Defendant left and went to another apartment in the same complex to see Richard, another friend. Several hours later the two left for Tucson. Defendant did not own a car, but he was driving a station wagon that he told Richard he had borrowed from friends in Tucson.

Richard accompanied defendant to Tucson where defendant stopped to make a phone call, after which, according to Richard, defendant was "really upset." Defendant drove a few more blocks before making another phone call. After this call, he calmed down. Defendant and Richard then drove to a secluded desert area and met Polly. Defendant spoke to Polly for several minutes, telling her that "he was in trouble and he was going to be out of town for a while." Defendant then got back in the car and drove approximately 300 to 400 yards into the desert.

Hidden beneath a tree was a cache of electronic equipment, including VCRs, videocassettes, and stereo equipment. Richard helped defendant load many of these items into the station wagon, but they left behind several items that would not fit. Defendant and Richard then returned to Phoenix and stored the equipment in Scott and Lisa's apartment.

On the return trip to Phoenix, defendant told Richard that he had beaten "some guy" up and had been covered with blood. In Phoenix, defendant told Scott that he had "ripped some old man off." Later, defendant told Scott that he wanted to "dump the car" because "it was the old man's that he had robbed." Scott and defendant drove separately out to the far west side of Phoenix, where defendant told him that "he was going to go out in the field and either just dump it or burn it." Defendant asked Scott if he had a gas can. Scott did not. Defendant drove off in the station wagon and returned a short time later on foot. Scott saw a big cloud of smoke, and defendant told him that he had burned the car.

On Tuesday afternoon, July 14, Polly called Scott and Lisa's apartment looking for defendant. Lisa went to Richard's apartment to tell defendant about the call. She there heard defendant tell Richard and another person that he was "trying to get rid of some merchandise." Lisa asked defendant if he was in trouble, and he told her "not to worry about it." Later defendant told Scott that "he had beat this old man up and tied his arms and legs behind his back and threw him in the closet and then he ripped his stuff off and the car." Defendant had scratches on his hands and told Scott that "he got them beating up the old man."

The next day, while he was in her apartment, Lisa heard defendant say that he "had beat the fuck out of this old man and [had] thrown him in a closet." Lisa asked defendant, "[Y]ou did what?" to which defendant replied, "[T]his isn't for your ears, don't worry about it."

Later, Lisa's friend Patty called, and Lisa told her what she had heard about defendant's activities. About 45 minutes later, Lisa went to Richard's apartment and confronted defendant. She told him that she had a "pretty good idea of what had happened" and that, if the victim could be helped, he should be. Lisa told defendant that "he should call Silent Witness or somebody that would go check to see if this man was alive and that he probably had family that loved him." Defendant replied, "[N]o, this man had nobody," and that Lisa "would have to live with it."

On Thursday, July 16, defendant asked Scott to make plane reservations for his return to Illinois. Defendant packed the equipment that had not been disposed of into boxes and, on Thursday night, left Phoenix with the items. In the meantime, Patty had contacted the Pima County Sheriff's Department. Detective Petropoulos spoke to Patty several times during the morning of Friday, July 17 and, using the information that she provided, contacted Polly. While interviewing Polly, the detective noticed the map to the victim's house. After obtaining the map from Polly, the detective called the number written on the map. Receiving no response, he went to the victim's home to investigate.

Detective Petropoulos entered the trailer and found the victim's decomposing body in the north bedroom. The victim's hands and feet were tied behind his back with a vacuum cleaner cord and a lamp wire. The medical examiner later testified that the victim had been beaten severely about the face with a blunt instrument and that he probably had bled to death within 45 minutes to an hour. Although a knife was found in the trailer, the medical examiner found no evidence that the victim had been stabbed. Because of the body's decomposed condition, the medical examiner could only estimate the time of death. In his opinion, the victim had been dead between three and seven days, placing the killing between Saturday, July 11 and Wednesday, July 15.

Some time after 3:00 a.m. on Saturday, July 18, Sergeant Mark Wilkans of the Hodgkins, Illinois, police department stopped a vehicle for speeding. Defendant was one of two passengers in the car. After arresting the driver for driving under the influence, Wilkans asked defendant for identification. Having none, defendant gave Wilkans his name and birth date. Wilkans radioed this information to his base and was informed that defendant was wanted in Arizona for murder. Wilkans arrested defendant. A search of the car at the Hodgkins police station yielded boxes that defendant had brought from Arizona. The boxes were inventoried and contained electronic equipment later identified as having been taken from the victim. On Monday, July 20, Detective Petropoulos arrived in Illinois from Tucson and took custody of defendant and the stolen property. He sealed the boxes and mailed them to Tucson where, after obtaining a warrant, he searched them.

ISSUES

Defendant raises 10 trial issues, 11 sentencing issues, and one issue relating to appellate procedure. Many of the issues have numerous subparts. 1 The issue relating to appellate procedure is 1. Whether our order limiting defendant's opening brief to 150 pages violated his due process right to effective assistance of counsel.

The trial issues are:

1. Whether the trial court erred by "death qualifying" the jury;

2. Whether the trial court improperly admitted evidence seized in Illinois as a result of a warrantless automobile inventory search;

3. Whether the trial court erred by precluding defendant from raising as a defense that the victim had suicidal tendencies and had arranged his own death;

4. Whether the trial court erred by admitting a gruesome photograph of the victim;

5. Whether defendant was deprived of his right to be informed of the nature of the charges against him;

6. Whether the trial court erred in instructing the jury;

7. Whether Arizona's felony murder statute is unconstitutional;

8. Whether conduct of the judge during trial denied defendant a fair trial;

9. Whether the prosecutor engaged in misconduct during closing argument; and

10. Whether the trial court erred by failing to provide the defense with the juror's names and addresses after the trial.

The sentencing issues are:

1. Whether the State failed to prove beyond a reasonable doubt that defendant previously had been convicted of a violent felony within the meaning of A.R.S. § 13-703(F)(2);

2. Whether the State failed to prove beyond a reasonable doubt that the killing was especially cruel or heinous.

3. Whether the application of A.R.S. § 13-703(F)(5) (expectation of pecuniary gain as aggravating circumstance) to this case is unconstitutional and, if not, whether the State nonetheless failed to prove beyond a reasonable doubt that defendant killed in expectation of pecuniary gain;

4. Whether the trial court erred by failing to find additional mitigating circumstances;

5. Whether the trial court gave insufficient weight to the two mitigating circumstances that it did find;

6. Whether imposing the death penalty for felony murder is unconstitutional, and whether the trial court erred by failing to conduct an Enmund/ Tison hearing;

7. Whether defendant received adequate notice of the aggravating circumstances that...

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