Opinion
1 CA-CR 96-0940
Filed August 4, 1998
Appeal from the Superior Court of Maricopa County, Cause No. CR 95-04477
The Honorable Alfred J. Rogers, Judge
AFFIRMED AS MODIFIED IN PART AND REMANDED FOR RESENTENCING; ORDER VACATED
Grant Woods, Arizona Attorney General by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section and Jacquelyn B. Eskay, Assistant Attorney General Attorneys for Appellee, Phoenix.
Dean W. Trebesch, Maricopa County Public Defender by Christopher Johns, Deputy Public Defender Attorneys for Appellant, Phoenix.
OPINION
¶ 1 Robert Anthony Ruiz ("Defendant") appeals from his conviction upon a jury verdict and sentence on one count of first-degree (premeditated) murder under Arizona Revised Statutes Annotated ("A.R.S.") section 13-1105(A). We modify the conviction to that of second-degree murder and affirm the modified conviction. We also vacate an order barring all post-trial juror interviews. We remand to the trial court for resentencing in accordance with the modified conviction.
¶ 2 The relevant facts are as follows. On the night the decedent was killed, the decedent and Defendant were at the home of an acquaintance, D.P. D.P. had hired each man to do various home improvement jobs for her. After some conversation among the three, the decedent and Defendant left the house at the same time. D.P.'s young son testified that he heard Defendant say, "Why is [sic] you taking my business?" to the decedent as they walked out. A few moments later, D.P. heard the clatter of her garbage cans and opened the door to investigate. She saw the decedent and Defendant struggling with each other near the garbage cans and heard Defendant say, "I told you to go on. I told you to go on." She quickly shut the door. Her son testified that he looked out his window and saw Defendant stabbing the decedent repeatedly with a pocket knife. The decedent attempted to get away from Defendant but fell to the ground as Defendant stabbed him again. Defendant then folded his knife and ran down the street. Police arrested Defendant the following day and a Maricopa County grand jury returned an indictment charging him with one count of first-degree murder.
¶ 3 The trial court sentenced Defendant to life imprisonment. Defendant timely appealed. This Court has jurisdiction to adjudicate the appeal. Ariz. Const. art. VI, § 9; A.R.S. §§ 12-120.21, 13-4031, 13-4033(A).
¶ 4 The issues presented are as follows:
1. Was the evidence of Defendant's identity sufficient to sustain the conviction?
2. Was the evidence of premeditation sufficient for conviction of first-degree murder?
3. Did the trial court abuse its discretion in excluding an unavailable witness's pretrial statement?
4. Did the trial court commit fundamental error by failing to obtain an on-the-record waiver of Defendant's right to testify?
5. Did the trial court abuse its discretion in denying counsel an opportunity to interview jurors after the verdict?
¶ 5 We first address Defendant's contention that because the evidence failed to establish his identity, the trial court should have granted his motion for new trial. We review a trial court's denial of a new trial motion for abuse of discretion. State v. Neal, 143 Ariz. 93, 97, 692 P.2d 272, 276 (1984); State v. Jones, 185 Ariz. 471, 484, 917 P.2d 200, 213 (1996).
¶ 6 Our review of the State's evidence shows that it was sufficient to support the jury's finding regarding identity. Defendant's argument on identity derives from two observations:
1. The testimony of D.P.'s son, a ten-year-old boy, was untrustworthy because (A) it "evolved and waffled during the trial," (B) the boy is hyperactive and he was medicated for that condition at the time he made his observations, and (C) it was uncorroborated; and
2. The trial court commented (outside the presence of the jury) that "if I were on the jury I probably would vote not guilty."
¶ 7 The arguments concerning the boy's testimony go to weight. The jury is entitled to evaluate witness credibility. Neal, 143 Ariz. at 97, 692 P.2d at 276. Our focus is on the quantum of evidence and whether it was sufficient to support the jury's verdict and, consequently, supported the trial court's decision to deny the new trial motion. Id. at 98, 692 P.2d at 277.
¶ 8 Given that the jury was entitled to fully credit the boy's testimony, the evidence was sufficient to identify the Defendant beyond a reasonable doubt. The boy observed Defendant stabbing the decedent. Contrary to Defendant's assertion, there is evidence corroborating the boy's testimony. D.P. testified that Defendant and the decedent left her home at the same time, immediately before the violent attack commenced. She saw from her front door that Defendant "had [the decedent] by the neck," and observed blood "down the side of [the decedent's] clothes." Although Defendant points to inconsistencies in the testimony, this was a matter for the jury to consider. Id.
¶ 9 The trial judge's comment as to how he would probably vote if he were a juror, made after the jury retired to deliberate, is too equivocal to be meaningful. Moreover, the judge also stated that the case was "close," and that he "was not surprised by the verdict." These comments do not amount to a finding that the verdict was against the weight of the evidence.
¶ 10 We now turn to Defendant's second contention regarding the sufficiency of the evidence, that premeditation was not established beyond a reasonable doubt. The proof required is governed by the statute defining the offense, A.R.S. section 13-1105(A)(1). It states that a person commits first-degree murder if, "intending or knowing that the person's conduct will cause death, such person causes the death of another with premeditation." At the time of the crime, section 13-1101(1) defined premeditation as follows:
Premeditation means that the defendant acts with either the intention or the knowledge that he will kill another human being, when such intention or knowledge precedes the killing by a length of time to permit reflection. An act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion.
Thus, to prove premeditation beyond a reasonable doubt, the State had to show that "a plan to murder was formed after the matter had been made a subject of deliberation and reflection." State v. Kreps, 146 Ariz. 446, 449, 706 P.2d 1213, 1216 (1985). A trial court has abused its discretion when it has denied a motion for a new trial and "the evidence was not sufficient to allow the jury to find beyond a reasonable doubt that [Defendant] premeditated [the decedent's] murder." Neal, 143 Ariz. at 97, 692 P.2d at 276 (citation omitted). The State relies on circumstantial evidence: Defendant's words to the decedent moments before the stabbing and the number of times Defendant stabbed the decedent. Circumstantial evidence may of course prove premeditation. State v. Moya, 129 Ariz. 64, 66, 628 P.2d 947, 950 (1981).
¶ 11 Our role is limited to review of whether the evidence is enough to show premeditation beyond a reasonable doubt. Id. Of course, mere speculation cannot support a jury's determination. State v. Sanchez, 181 Ariz. 492, 494, 892 P.2d 212, 214 (App. 1995); see generally Preuss v. Sambo's of Arizona, 130 Ariz. 288, 635 P.2d 1210 (1981); Salt River Valley Water Users' Ass'n. v. Blake, 53 Ariz. 498, 90 P.2d 1004 (1939) (civil cases). A jury is forced to speculate, for example, when the inferences from circumstantial evidence are equally consistent with guilt and innocence. Commonwealth v. Lombard, 646 N.E.2d 400, 404 (Mass. 1995); see Salt River Valley, 53 Ariz. at 503-4. Similarly, evidence and inferences that are merely consistent with guilt, but fail affirmatively make it more probable than innocence, are insufficient. Dunn v. State, 454 So.2d 641, 647 (Fla.App. 1984) (Cowart, J., concurring); Thomas v. State, 512 So.2d 1099, 1101 (Fla.App. 1987); see also Salt River Valley, 53 Ariz. at 503-4 (civil plaintiff may not recover when it is equally probable that defendant caused the loss as not).
¶ 12 It is easy to see why this must be so. Due process of law requires that proof of guilt be beyond a reasonable doubt. "It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned . . . . [G]overnment cannot adjudge [an individual] guilty of a criminal offense without convincing a proper fact finder of his guilt with utmost certainty." In re Winship, 397 U.S. 358, 364 (1970).
¶ 13 Evidence which generates inferences equally consistent with guilt and innocence falls short of this lofty hurdle. An equal — fifty percent — chance of guilt or innocence is no better than the toss of a coin. Indeed, the probability of guilt must be substantially greater than fifty percent to eliminate reasonable doubt and satisfy constitutional standards. Alan Cullison, Probability Analysis of Judicial Fact-Finding: A Preliminary Outline of the Subjective Approach, 1969 Toledo L. Rev. 563, 568 (Summer 1969).
¶ 14 Although it is the jury's function to "weigh the chances that the evidence correctly points to guilt," State v. Harvill, 106 Ariz. 386, 389, 476 P.2d 841, 844 (1970) (quoting case), "[i]t is the duty of this court . . . to review all of the evidence and to determine whether the state proved beyond a reasonable doubt that the crime of murder was committed with premeditation." Moya, 129 Ariz. at 67, 628 P.2d at 950. Because juries are fallible, and may draw an inference not logically warranted by the evidence, the court must conduct some degree of review of the evidence and possible inferences. It is for the same reason that courts prevent juries from hearing some evidence on the ground of relevancy, that is, the jury may give the evidence improper weight. See Richard O. Lempert, Modeling Relevance, 75 Mich. L. Rev. 1021, 1027-30 (April-May 1977).
¶ 15 Mindful of our duties to both respect the jury's fact finding and to disallow convictions not based on evidence of guilt beyond reasonable doubt, we consider the evidence in this case. We first examine Defendant's statements. Prior to the killing, Defendant said, "I told you to go on." Earlier he had said, "Why is [sic] you taking my business?" Neither statement reveals the statutorily required intention or knowledge. The evidence suggests an argument between Defendant and the decedent, but an argument is at least equally consistent with an unpremeditated crime of passion, especially when the argument is close in time to the slaying.
¶ 16 Nor is the other circumstantial evidence relied upon by the State, infliction of multiple wounds, proof of premeditation. State v. Swain, 269 N.W.2d 707, 714 (Minn. 1978); see Moya, 129 Ariz. at 66-67, 628 P.2d at 949-50 (holding that State failed to prove premeditation beyond a reasonable doubt despite evidence of multiple wounds). The presence of multiple wounds alone does not tend to prove premeditation because "such a killing is just as likely (or perhaps more likely) to have been on impulse." Wayne R. LaFave Austin W. Scott, Jr., Substantive Criminal Law § 7.7(a), at 240 (1st ed. 1986). To show that the method of killing is evidence of premeditation, there must be more, such as evidence that the wounds were "deliberately placed at vital areas of the body." Id. In this case, the evidence showed that only one of the wounds proved to be fatal. "The violence and multiple wounds . . . cannot standing alone support an inference of a calmly calculated plan to kill requisite for premeditation and deliberation, as contrasted with an impulsive and senseless, albeit sustained, frenzy." Austin v. United States, 382 F.2d 129, 139 (D.C. Cir. 1967).
¶ 17 Of course, multiple wounds combined with other circumstances can evidence premeditation. See Kreps, 146 Ariz. at 449, 706 P.2d at 1216 (where there was one gunshot, a substantial pause and two more gunshots, the pause before the second and third shots suggested "a period of time in which the defendant could contemplate his act"). No evidence of such other circumstances has been suggested by the State, and our review of the record revealed none.
¶ 18 Arizona decisions involving multiple wounds and finding premeditation also include additional circumstances. In State v. Murray, 184 Ariz. 9, 32, 906 P.2d 542, 565 (1995), the defendant shot the victims multiple times but did so execution-style, with multiple weapons, while the victims lay on their stomachs. In State v. Pittman, 118 Ariz. 71, 75, 574 P.2d 1290, 1294 (1978), the court cited not only the three gunshot wounds but the defendant's entry into the victim's home with a deadly weapon. In State v. Sellers, 106 Ariz. 315, 316, 475 P.2d 722, 723 (1970), the court found the defendant's repeated hammer blows to the victim, each sufficient to cause death, coupled with his attempt to dispose of the body, supported a finding of premeditation. Finally in State v. Spears, 184 Ariz. 277, 289, 908 P.2d 1062, 1074 (1996), the court summarized the evidence of premeditation as follows:
In this case, the evidence showed that:
(1) defendant had Jeanette purchase a one-way plane ticket so that he could fly to Phoenix; (2) he left for Phoenix with a 9mm Beretta gun in his possession; (3) he told his California girlfriend that he was coming to Phoenix to work on some airplanes, but no evidence showed that he did any work while in Arizona; (4) Jeanette requested a leave of absence from work; (5) after defendant arrived in Phoenix, Jeanette got cash advances on her credit cards and prepared to sign her truck title over to defendant; and (6) Jeanette was shot in the back of the head, which is inconsistent with a heat-of-passion murder.
See also State v. Neal, 143 Ariz. at 98, 692 P.2d at 277.
¶ 19 A conviction for a crime when evidence of an essential element is missing may not stand. State v. Eliason, 25 Ariz. App. 523, 529, 544 P.2d 1124, 1130 (1976). Because premeditation is an indispensable element of first-degree murder, the conviction must be reversed.
¶ 20 This does not require that Defendant be acquitted, however. "It is well settled that this Court, upon a finding of insufficiency of the evidence, may modify the judgment to conform to the evidence under circumstances such as are presented here." Id. (The facts supported misdemeanor receipt of stolen property but not the felony receipt of which the defendant was convicted.) (citations omitted); see also Austin, 382 F.2d at 140 (reducing a first-degree murder conviction to second-degree due to lack of evidence of premeditation).
¶ 21 The evidence supports a conviction for second-degree murder. A person commits second-degree murder if he intentionally causes the death of another person without premeditation. A.R.S. § 13-1104(A)(1). The distinction between first-degree murder and second-degree murder is the element of premeditation. State v. Marvin, 124 Ariz. 555, 557, 606 P.2d 406, 408 (1980). Because the elements for this lesser-included offense are necessarily present, we have the authority to modify the judgment. See State v. Rowland, 12 Ariz. App. 437, 438, 471 P.2d 322, 323 (1970); State v. Garcia, 138 Ariz. 211, 214, 673 P.2d 955, 958 (App. 1983). Accordingly, we modify the judgment to reflect a conviction for murder in the second degree and remand to the trial court for appropriate resentencing.
¶ 22 The third issue presented by Defendant is whether the trial court abused its discretion in excluding the recorded statement of an unavailable witness. Defense counsel interviewed a witness identified by the State, an associate of the decedent and neighbor of D.P. The interview took place at the Maricopa County Attorney's offices, and the prosecutor was present. The associate stated that she saw the decedent leave D.P.'s residence with D.P., in D.P.'s car, some time after 11:45 p.m. or midnight on the night of the murder. This witness was unavailable to testify at trial. Defendant moved to introduce that portion of the interview transcript in which the witness stated that she saw the decedent leave D.P.'s residence, with D.P., in D.P.'s car. The trial court denied the motion.
¶ 23 The trial court properly excluded this evidence. The statement was hearsay under Rule 801(c), Arizona Rules of Evidence: It was an out-of-court statement offered to prove the truth of the matter asserted. Hearsay statements are generally inadmissible under Rule 802. Defendant argues that the statement was admissible under the Rule 804(b)(5) "catch-all" exception to the rule of inadmissibility, which provides:
Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.
However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, [his] intention to offer the statement and the particulars of it, including the name and address of the declarant.
¶ 24 The trial court's decision to exclude the statement was proper. We review a decision to exclude evidence under Rule 804(b) under an abuse of discretion standard. State v. Henry, 176 Ariz. 569, 575, 863 P.2d 861, 867 (1993). The statement does not satisfy Rule 804(b)(5). The statement was not evidence of a material fact because it added nothing to Defendant's case. In view of witness testimony placing the Defendant at the scene administering the blows, it proves nothing that the decedent left the crime scene with D.P., in D.P.'s car, at least an hour before the murder. The Defendant argues neither that the blows were administered while the decedent was away from D.P.'s home nor that D.P. or any other third party administered them during that time. The statement neither inculpates D.P. nor exculpates Defendant.
¶ 25 To the extent that the statement would have impeached D.P.'s trial testimony, its exclusion was scarcely prejudicial as it would have impeached D.P. only on this collateral issue. Indeed, the trial court could have excluded the associate's statements as extrinsic evidence offered to impeach a witness (D.P.) on a collateral matter. State v. Hill, 174 Ariz. 313, 325, 848 P.2d 1375, 1387 (1993); State v. Gertz, 186 Ariz. 38, 41, 918 P.2d 1056, 1059 (App. 1995). Moreover, D.P.'s testimony was impeached on numerous points by other witnesses and by her own inconsistent statements.
¶ 26 It does appear that the statement is somewhat more probative on this point than any other evidence. The police report to which defense counsel repeatedly referred during the interview contained notes taken by the police officer who spoke with the associate on the day of the murder. The police officer's report indicates that the associate told him she saw the decedent leave with D.P. in D.P.'s car. The interview transcript is somewhat more probative than the police report because it is a verbatim record rather than a summary prepared by someone other than the declarant. However, this does not weigh in favor of admission because the substance of the statements otherwise lacks probative value as noted above. For the same reason, admission of the associate's interview statements would not have furthered the truth-seeking function of the trial. We conclude there was no abuse of discretion in excluding the associate's out-of-court statements.
¶ 27 The fourth issue presented is the absence of an on-the-record waiver of Defendant's right to testify. We hold that this does not constitute fundamental error because it was not error.
¶ 28 Defendant did not testify at trial. Although he does not contend that he was denied the right to testify, he asserts for the first time on appeal that when a defendant elects not to testify, the trial court must establish on the record that the decision is knowing and voluntary. He further asserts that the trial court's failure to establish such a waiver on the record in this case is fundamental error. Defendant concedes that there is no supporting Arizona authority for either assertion. He relies on case law from other states, and argues that the decision not to testify is analogous to the decision to forego a jury trial — a decision which requires an on-the-record waiver. See generally Boykin v. Alabama, 395 U.S. 238, 243 (1969).
¶ 29 The Arizona Supreme Court has expressly held that an on-the-record waiver of the right to testify is unnecessary. State v. Gulbrandson, 184 Ariz. 46, 65, 906 P.2d 579, 598 (1995); State v. Allie, 147 Ariz. 320, 328, 710 P.2d 430, 438 (1985) (holding that waiver is presumed by defendant's failure to testify and stating that "a sua sponte inquiry by the trial court as to whether a defendant desires to testify is neither necessary nor appropriate"). These cases control the outcome here. While it is well established that the decision whether to testify is ultimately the defendant's, defense counsel's comment at sentencing that Defendant "didn't testify because it was my decision" is insufficient to establish that Defendant's decision not to testify was involuntary. There was no error.
¶ 30 The final issue is the trial court's decision to preclude post-trial interviews of the jurors. Prior to jury deliberations, the trial court directed counsel not to conduct post-trial interviews of the jurors. Defendant argues that this was error, and we agree.
¶ 31 While the court may deny a motion to interview or poll the jurors on a particular subject (see State v. Fassler, 108 Ariz. 586, 595-96, 503 P.2d 807, 816-17 (1972)) or condition the right to interview on an affidavit showing good cause (see State v. Paxton, 145 Ariz. 396, 397, 701 P.2d 1204, 1205 (App. 1985), a blanket denial of a party's ability to interview without apparent cause goes too far. No reason appears in the record for such a broad proscription. Arizona Rule of Criminal Procedure 24.1(c)(3), which allows evidence of juror misconduct as grounds for a new trial, implies that defendants may interview jurors. Accordingly, we vacate the trial court's order barring Defendant from interviewing jurors.
¶ 32 For the foregoing reasons, we affirm Defendant's conviction as modified to second-degree murder and we vacate the order forbidding the parties from interviewing jurors. We remand to the trial court for resentencing.
_____________________________ JEFFERSON L. LANKFORD, Judge
CONCURRING:
_____________________________ NOEL FIDEL, Presiding Judge
_____________________________ SARAH D. GRANT, Judge