State v. White
| Citation | 168 Ariz. 500,815 P.2d 869 |
| Decision Date | 16 July 1991 |
| Docket Number | No. CR-88-0287-AP,CR-88-0287-AP |
| Parties | STATE of Arizona, Appellee, v. Michael Ray WHITE, Appellant. |
| Court | Arizona Supreme Court |
A jury convicted Michael Ray White (defendant) of first degree murder and conspiracy to commit first degree murder. The court sentenced defendant to death for the murder conviction and to life imprisonment without possibility of parole for twenty-five years for conspiracy to commit first degree murder. The court further ordered that if the death sentence were reduced to life imprisonment, the life sentence for conspiracy would be served consecutively to the reduced life sentence imposed on the murder count. Appeal is made to this court under rule 31.2(b), Ariz.R.Crim.P., 17 A.R.S. We have jurisdiction pursuant to Ariz.Const. art. 6, § 5(3), and A.R.S. §§ 13-4031, -4033, and -4035.
We must determine fourteen issues on appeal:
1. Did the trial court err in refusing to give a jury instruction concerning the jury's role in determining the admissibility of a co-conspirator's statements?
2. Did the trial court's refusal to instruct the jury that it must disregard a co-conspirator's statements that fell outside the scope of the conspiracy found by the jury deny the defendant his right to a trial by jury?
3. Did the trial court's refusal to instruct the jury on its role in determining the admissibility of hearsay statements deprive the defendant of his constitutional right of confrontation?
4. Did the trial court err in admitting hearsay statements made:
(a) By a co-conspirator after the shooting, which defendant claims were neither "in furtherance of" nor "in the course of" the conspiracy?
(b) By the defendant relating to the co-conspirator's efforts to enlist defendant in the plan to kill the victim?
5. Did the trial court err in admitting testimony that defendant was a bigamist and further err in denying his motion for a mistrial?
6. Is the defendant entitled to a new trial because of the cumulative effect of the evidentiary errors?
7. Does "conviction of conspiracy to murder and aiding and abetting murder constitute double jeopardy?"
8. Was due process denied when this court refused to order a mental examination after a prima facie showing of incompetency to assist in the appeal?
9. Did the death qualification voir dire of the jury improperly prejudice the jury and deprive the defendant of his right to an impartial jury in violation of the sixth and fourteenth amendments to the United States Constitution and article 2, §§ 1, 4, 23, and 24 of the Arizona Constitution?
10. Was the imposition of the death penalty inappropriate in this case when the only aggravating factor found by the trial court was that the murder was committed in expectation of pecuniary gain?
11. Was equal protection denied because a female co-defendant received life imprisonment for the same crime?
12. Was appellant denied the right to present mitigation evidence to this court?
13. Is Arizona's capital punishment statute constitutional under the various arguments presented herein?
14. Was the death sentence under the circumstances of this case excessive and/or disproportionate to the crime?
At approximately 11:00 p.m. on 12 December 1987, neighbors of David and Susan Johnson (David and Susan) heard gunshots at the Johnson residence in Bagdad, Arizona. Neighbors saw a man run from the residence and enter a green car, which sped away. Shortly thereafter, a bleeding David walked to a neighbor's home, where he collapsed. He had been shot in the chin and in the back with a .357 magnum revolver. Before he died, David told various persons that a man wearing a mask shot him. Susan told police and other witnesses that her ex-husband, Clifford Minter, shot David. Susan allegedly obtained this information from David before he died and was apparently the only person to hear David make this identification. To others, David simply said that a man with a mask shot him. The description of the green car and the name, Clifford Minter, were broadcast over the police radio.
An officer on his way to the shooting scene spotted the green vehicle driving out of Bagdad and stopped it. Defendant was the sole occupant. Defendant explained that he had just dropped off a companion and was on his way home. Because the police broadcast named Clifford Minter as the suspect, the officer released defendant.
Police soon discovered that Minter was not involved in the shooting and began focusing their investigation on defendant and Susan. They learned that defendant met Susan in January 1987, when the two worked at a nursing home in Prescott, Arizona. In April 1987, the couple went to Michigan and worked together in a nursing home. Susan returned to Prescott in October 1987 to marry David. Defendant returned shortly thereafter and, despite Susan's engagement and subsequent marriage to David, resumed intimate relations with her. Defendant later told several persons that Susan asked him to kill David.
The investigation revealed Susan's efforts to obtain additional life insurance on David naming her as the beneficiary, and her efforts to change David's life insurance records to make her the beneficiary of his employer-sponsored life insurance policy. Further investigation revealed that defendant assured his ex-wife, Becky Fisher, that he would pay past due child support obligations because he was coming into some money soon. Defendant said that he would be receiving $100,000. Defendant also mentioned that Susan was divorcing David and that the settlement money she received would be used to put defendant through medical school.
The police also learned that defendant made a down-payment on a revolver at a Prescott pawn shop on 19 November 1987. Defendant later made another payment and picked up the revolver. After David was shot, defendant sold the revolver to a Phoenix pawn shop. The gun was recovered and determined to be the weapon used to kill David. Defendant's car was identified as the green, dented Oldsmobile driven from the murder scene.
Defendant was arrested in Phoenix on 19 December 1987. Police searched defendant's car and found a box of .38 caliber bullets, a ski mask, and a bag of potatoes. Defendant had apparently forced a potato over the barrel of the revolver to act as a silencer. Pieces of dried potato were found at the scene of the shooting and potato starch was found on the barrel of the revolver.
Defendant and Susan were charged with one count of conspiracy to commit first degree murder and one count of first degree murder. Defendant's trial was severed from Susan's.
Defendant claimed at trial that Susan killed David. He said that he went to the Johnson home on 12 December 1987 while David was at work. After having sexual intercourse with Susan, he fell asleep. He was awakened by a noise and went outside, where he saw Susan with the gun. He claimed he told her, "don't do it," and pushed her arms. The gun went off, wounding David. Defendant tried to help David up and told Susan to call an ambulance. He then watched as Susan shot David twice more. Defendant then took the gun and fled.
The jury convicted defendant on both counts. At a presentence hearing, the state argued that the purpose of the murder was to collect the insurance proceeds on the victim's life. Defense counsel presented no mitigation evidence, but argued that defendant's lack of a prior record was a mitigating circumstance. Counsel argued that the evidence did not establish that defendant's involvement in the killing was for financial gain. Rather, defendant acted out of love or infatuation for Susan. Finally, counsel argued for concurrent rather than consecutive sentences.
The trial court found that defendant committed the murder as consideration for the receipt of something of pecuniary value--the insurance money due from the policies on David's life. The court considered as mitigating circumstances defendant's lack of a prior criminal record, his family history (natural father leaving home, alcoholic stepfather), his dependent personality, his inability to form and maintain close relationships, his employment record, his lack of a record of abusive or violent behavior, and his expression of sorrow for David's death. The court found that defendant killed and intended to kill David.
The court sentenced defendant to life imprisonment without possibility of parole for twenty-five years for conspiracy to commit first degree murder. Finding the mitigating circumstances insufficient to warrant leniency, the court sentenced defendant to death for first degree murder. Defendant now appeals his convictions and sentences.
Because of the similarity of issues 1-3, we have joined them for discussion. Defendant contends that the trial court erred in refusing to give an instruction on the jury's role in determining the admissibility of co-conspirators' out-of-court statements. Defendant's requested jury instruction, taken verbatim from the California Jury Instructions-Criminal, 6.24 (4th ed. 19____), provides that:
Any evidence of a statement made by one alleged conspirator other than at his trial shall not be considered by you as against another alleged conspirator unless you shall first determine from other independent evidence that at the time the statement was made a conspiracy to commit a crime existed and unless you shall further determine that the statement was made while the person making the statement was participating in the conspiracy and before or during the time the person against whom it was offered was participating in the conspiracy and, finally, that such statement was made in furtherance of the...
To continue reading
Request your trial
-
State v. West
... ... We rejected this argument in State v. Greenway, 170 Ariz. 155, 164, 823 P.2d 22, 31 (1991). That the prosecutor has discretion to request the death penalty does not alter this conclusion. See, e.g., State v. White, 168 Ariz. 500, 515, 815 P.2d 869, 884 (1991), cert. denied, 502 U.S. 1105, 112 S.Ct. 1199, 117 L.Ed.2d 439 (1992); Rossi, 146 Ariz. 359, 366, 706 P.2d 371, 378 ... We have also previously dealt with and again reject defendant's argument that Arizona's death penalty statute ... ...
-
Gerlaugh v. Lewis, CIV-85-1647-PHX-RGS.
... ... Seven claims allege error with respect to Petitioner's direct appeal or state post-conviction relief proceedings. The remainder of Petitioner's claims involve challenges to his death sentence ... PROCEDURAL ... Lane, 489 U.S. 288, 299, 109 S.Ct. 1060, 1069, 103 L.Ed.2d 334 (1989) (noting same); See also White v. Lewis, 874 F.2d 599, 602 (9th Cir.1989) ("Dismissal of federal habeas petition for failure to exhaust is appropriate only if the prisoner had a ... ...
-
State v. Lavers
...Review" which, in my view, is unnecessary. See the concurring opinions of Justices Corcoran and Moeller in State v. White, 168 Ariz. 500, 815 P.2d 869 (1991). CORCORAN, Justice, specially concurring in I join with Justice Moeller in his special concurrence. 1 All quotations in this opinion ......
-
Jeffers v. Lewis
...by weighing them against the aggravating factors. See State v. Lavers, 168 Ariz. 376, 814 P.2d 333, 348 (1991); State v. White, 168 Ariz. 500, 815 P.2d 869, 881 (1991). In matters of Arizona law, the Arizona Supreme Court is the controlling authority, and any decision of that court takes pr......