State v. Wooten

• Decision Date: 30 April 1998
• Docket Number: CA-CR,No. 1,1
• Parties: , 294 Ariz. Adv. Rep. 3 STATE of Arizona, Appellee, v. Levonnie WOOTEN, Appellant. 96-0579.
• Court: Arizona Court of Appeals

Page 993

972 P.2d 993

193 Ariz. 357, 294 Ariz. Adv. Rep. 3

STATE of Arizona, Appellee, v. Levonnie WOOTEN, Appellant.

No. 1 CA-CR 96-0579.

Court of Appeals of Arizona Division 1, Department A.

April 30, 1998.

Redesignated as Opinion and

Publication Ordered Sept. 4, 1998.

Review Denied Feb. 23, 1999.

Grant Woods, Attorney General By Paul J. McMurdie, Chief Counsel Criminal Appeals Section, Colleen L. French, Assistant Attorney General, Phoenix, for Appellee.

Dean W. Trebesch, Maricopa County Public Defender By Garrett W. Simpson, Deputy Public Defender, Phoenix, for Appellant.

OPINION

PATTERSON, Presiding Judge.

¶1 Levonnie Wooten appeals from his convictions and sentences on one count each of first degree murder, burglary and witness tampering. For the following reasons, we affirm.

FACTS

¶2 The victim, Althea Hayes, was last seen alive on Thursday, July 22, 1993. Two days later her body was discovered in her apartment by her father. She had been shot four times with a .380 caliber handgun. Hayes was several weeks pregnant with the child of Jerrod Mustaf, a professional basketball player and Wooten's cousin. Earlier that month, Hayes had told her health care providers and others that Mustaf did not want the child and had offered to pay her $5,000 to have an abortion. Hayes indicated that she was frightened of Mustaf.

¶3 On Saturday, July 17, 1993, Wooten's girlfriend, Monique Harris, flew from her home in California to Baltimore to spend a week with Wooten. She was supposed to meet Wooten's family, and there had been some discussion of marriage. The visit was cut short, however, when Wooten announced that he and Monique were to travel to Phoenix to handle some business because he owed Mustaf a favor.

¶4 They stayed at Mustaf's house with Mustaf and Mustaf's girlfriend, Kristy Wilmont. Wilmont had also arrived in Phoenix on Wednesday night. Mustaf's other friends, Pete Reece and Jauhar Anderson, were also staying at the house. Reece flew out of Phoenix the following day.

¶5 On Thursday, July 22, 1993, Alphonso Taylor, who knew both Wooten and Mustaf, saw the two men on Interstate 10 in Mustaf's black Porsche, which Wooten was driving. That same afternoon, Mustaf borrowed a red Mercedes convertible from Phoenix Motor Company. Between 2:30 and 3:00 on the afternoon of July 22, Mustaf and Wooten were seen in the Mercedes and Porsche, respectively, turning into the parking lot of Hayes' Glendale apartment complex. At that time, Hayes was out to lunch with her best friend, Toni Evans, and returned to her apartment about 5:00 p.m.

¶6 While Mustaf, Wooten and Anderson were gone, Wilmont, Harris, Anderson and Dawne Joshua, Anderson's girlfriend, went to Fiesta Mall in Mesa where they met Wooten who was still driving the Porsche. The group then returned to Mustaf's house where they had dinner. Mustaf had also returned to the house. At some point after dinner, Wooten left the house. None of the occupants in the house saw him between approximately 8:30 p.m. and 10:00 or 10:15 p.m.

¶7 At 9:23 p.m., Hayes placed a telephone call to her friend, Toni Evans. Hayes told Evans that Mustaf's cousin "Vonnie" was at Hayes' apartment "so if anything happens to me you know who was here." Around 9:30 p.m., Hayes' neighbors heard what sounded like gunshots or firecrackers.

¶8 At approximately 10:00 p.m., Harris, who had been napping in a bedroom in Mustaf's house, awoke and decided to look for Wooten. She went to the living room and asked Mustaf and Wilmont where Wooten was. Mustaf replied that Wooten went out to handle some business. ¹ Harris returned to the bedroom.

¶9 Around 10:15 p.m., Joshua, who was studying upstairs, saw Wooten near Mustaf's gun closet. Wooten was wearing dark clothing. At 10:30 p.m., Harris, after hearing a door close, went back to the living room and saw Wooten wearing black clothes, a black knit hat and black gloves.

¶10 Wooten entered the bedroom and told Harris to pack because they were leaving to return to her home in California. She and Wooten left the house driving the Diamante that Anderson had rented. On the way to California, while Harris was driving, she saw Wooten disassemble a handgun and throw pieces of the gun out of the car window. Wooten returned to Phoenix on Saturday, July 24. Mustaf and Wilmont took Wooten to a mall, where Mustaf bought Wooten a new suit and then they took Wooten to the airport.

¶11 On July 26, 1993, Wooten returned a call from Glendale Police Detective Lowe. Wooten denied knowing Hayes and refused to tell Lowe where he was. Eventually Wooten admitted that he may have met Hayes before. Wooten initially told Lowe that he had flown into Phoenix on Thursday evening, but later told him that he had flown in on Wednesday. He told Lowe that he and Harris had arranged to travel to Phoenix so that she could see her cousin, who played for the Arizona Cardinals.

¶12 Wooten told Detective Lowe that he had purchased the airline tickets from Washington to Phoenix using his own frequent flyer miles, but then stated that Mustaf had paid for the tickets and that he had reimbursed Mustaf. When Lowe asked Wooten when he had paid Mustaf back, Wooten indicated that he had not paid Mustaf back yet, but that he planned to. Wooten had no idea, however, how much the tickets cost.

¶13 Wooten told Lowe that he and Harris had left Phoenix about 3:00 p.m. on Thursday and drove to California in the Diamante. He told Lowe that he had returned to Phoenix on Saturday morning. Wooten first denied ever driving the black Porsche, but later stated he had driven it to a grocery store on Wednesday night, July 21, 1993. Wooten told Lowe that he had not been apart from Harris at any time during the trip, except when he went to the grocery store on Wednesday evening. Wooten denied driving the Porsche on Thursday and denied ever receiving any money from Mustaf.

¶14 About one week after the murder, Wooten called Harris and told her that if the police asked she was to tell them that they had left Phoenix for California at 2:00 or 3:00 in the afternoon on Thursday, July 22, the day that Hayes was killed. He also instructed her to say that they had traveled to Phoenix to visit Harris' cousin. During the conversation, Harris took notes on a piece of cardboard that was eventually recovered by police.

¶15 The police investigation revealed that Wooten had lied. Harris' cousin had been out of town. The people who were at Mustaf's house on Thursday afternoon and evening refuted Wooten's claim that he left at 3:00 p.m. Although Harris told investigators on more than one occasion the story that Wooten had instructed her to tell, she eventually broke down and admitted lying for Wooten. Other sources reported that Wooten and Hayes knew each other.

¶16 Wooten was charged with murder, burglary, and witness tampering. He was arrested in Maryland and returned to Arizona. The case was tried to a jury in January 1996. The state theorized that Mustaf wanted Hayes killed because she refused to abort her baby, and that Mustaf had induced Wooten to carry out the killing.

¶17 Wooten's attorney contended that the police had failed to follow a number of leads that suggested the possibility that someone else had committed the killing, and argued that many of the state's witnesses were not credible. The defense did not dispute Mustaf's motive to kill Hayes, but claimed that he "set up" Wooten. Defense counsel contended that Mustaf had enlisted someone other than Wooten to commit the crime. Wooten did not testify.

¶18 The jury found Wooten guilty on all three counts of the indictment. After an aggravation/mitigation hearing, the trial court sentenced Wooten to "natural life" on the first degree murder count, an aggravated term of twenty-one years on the burglary count, and an aggravated term of 1.87 years on the witness tampering count. Wooten timely appealed from his convictions and sentences.

ISSUES

¶19 The issues are as follows:

I. Did the jury commissioner's "shunting away" of prospective jurors because they indicated they could not serve on a lengthy trial violate Wooten's Sixth Amendment right to a jury panel made up of a fair cross-section of the community or his rights to equal protection and due process?

II. Did the trial court err in precluding Wooten's "third-party" defense?

III. Did the trial court err in admitting evidence of the victim's telephone call, identifying Wooten, under the present sense impression and residual exceptions to the hearsay rule?

IV. Did the trial court err in precluding introduction of "self-serving" hearsay statements by Wooten denying responsibility for the murder?

V. Did the trial court err in allowing the State to introduce excerpts of Wooten's tape-recorded telephone calls made from the jail?

VI. Did the trial court err in denying Wooten's request for a Willits instruction?

VII. Is the statute allowing the imposition of a "natural life" sentence for first degree murder unconstitutional?

ANALYSIS

I. "Shunting Away" of Prospective Jurors

¶20 In anticipation of a lengthy trial in this case, the jury commissioner prescreened prospective jurors before voir dire. Those indicating to the commissioner that they would be unduly burdened by lengthy service were excused. On appeal, Wooten argues that the jury commissioner's prescreening of prospective jurors disproportionately excluded poor and minority panelists, thereby depriving Wooten of his right to a jury composed of a fair cross-section of the community and violating his Sixth Amendment right to a fair trial as well as his rights to equal protection and due process under the Fourteenth Amendment. ²

A. Fair Cross-Section and Equal Protection

¶21 The selection of a jury from a representative cross-section of the community is an essential component of a criminal defendant's Sixth Amendment right to an impartial jury. Taylor v. Louisiana, 419 U.S. 522, 528, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). "In order to establish a prima facie...