Appendix — Arizona v. Fulminante

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> ) Supreme Court, US.

89-839 PILED

NOV 17 1968

“ JOSEPH F. SPANIOL, J

NO. 89 CuERe

meen

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1989

STATE OF ARIZONA,

Petitioner,

-vs-

ORESTE C. FULMINANTE,

Respondent,

ON WRIT OF CERTIORARI TO THE

ARIZONA SUPREME COURT

APPENDICES TO

PETITION FOR WRIT OF CERTIORARI

ROBERT K. CORBIN

Attorney General of

the State of Arizona

JESSICA GIFFORD FUNKHOUSER

Chief Counsel

Criminal Division Division

*BARBARA A. JARRETT

Assistant Attorney General

Department of Law

1275 W. Washington

Phoenix, Arizona 85007

Telephone: (602)542-4686

Attorneys for PETITIONER

Counsel of Record

i

[Filed June 16, 1988]

IN THE SUPREME COURT OF THE

STATE OF ARIZONA

In Banc

STATE OF ARIZONA,

Supreme Court No.

CR-86-0053-AP

Appellee,

Vv.

Maricopa County

ORESTE C. FULMINANTE, County Superior

Appellant.

de

Appeal from the Superior Court

of Maricopa County

The Honorable Stephen A. Gerst

AFFIRMED

Court No. CR-142821

Robert K. Corbin

The Attorney General

By: William J. Schafer III

Barbara A. Jarrett

Assistant Attorneys General

Attorneys for Appellee Phoenix

Ross P. Lee

Maricopa County Public Defender

By: James H. Kemper

Stephen R. Collins

Assistant Deputies Maricopa County

Public Defender

Attorneys for Appellant Phoenix

aftate

CAMERON, Justice

I. JURISDICTION

Defendant, Oreste C. Fulminante,

appeals a verdict and judgment of guilt

for the crime of first degree murder

(A.R.S. § 13-1105(A)(1)) and a sentence

of death (A.R.S. § 13-703). We have

jurisdiction pursuant to Ariz. Const.

Art. 6 § 5(3) and A.R.S. §§ 13-4031,

4033, and 4035.

II. ISSUES

Defendant raises the following issues

on appeal:

A. Trial Issues:

l. Did the trial court err in

determining that a paid informant for

the Federal Bureau of Investigation

did not violate defendant's fifth

amendment rights?

2. Did the trial court err in holding

that defendant's confession to

Anthony Sarivola was voluntarily made?

ofiatte

Did admission of defendant's

statement to Anthony Sarivola violate

defendant's sixth amendment right to

counsel?

Did the trial court err in admitting

defendant's statements to Donna Misch

(Sarivola) because the statements

were the “fruit of the poisonous

tree"?

Did the trial court err in admitting

a photograph of the victim into

evidence?

Did the trial court err in admitting

evidence regarding defendant's bad

character and his prior bad acts?

Did the trial court err in grecluding

defendant from presenting evidence

that a third party committed the

murder?

Did the trial court err in allowing

the prosecutor to present evidence

regarding the informant's truthful

character?

Did the trial court err in allowing

the prosecutor to elicit testimony

from a police officer regarding his

reasons for suspecting defendant was

the murderer?

Death Penalty Issues:

Are the terms “cruel, heinous, or

depraved” void for vagueness?

Did the trial court abuse its

discretion in sentencing defendant to

death? |

Does the defendant have a

constitutional right to a voie dire

examination of the trial judge in a

death penalty case?

Is Arizona's death penalty statute

unconstitutional because it requires

imposition of the death penalty when

one aggravating circumstance exists

and there are no mitigating factors?

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Is Arizona's death penalty statute

unconstitutional because it allegedly

lacks standards for evaluating

aggravating and mitigating

circumstances?

Is Arizona's death penalty statute

unconstitutional because it shifts

the burden of proof regarding

mitigating ciucumstances [sic] to the

defendant?

Is Arizona's death penalty statute

unconstitutional because it violates

defendant's sixth amendment right to

a jury trial on the issue of the

sentence of death?

Must this court, in its independent

review of the evidence, find that the

death sentence is inappropriate

punishment in this case?

Post-Trial Issues:

Was defendant denied his

constitutional right to the effective

aban

assistance of counsel by his trial

attorney?

III. FACTS

Defendant called the Mesa Police

Department on the morning of 14 September

1982, to report the disappearance of his

eleven-year-old stepdaughter, Jeneane

Michelle Hunt. Shortly thereafter he

drove to a hospital to pick up his wife

Mary, (Jeneane's mother) who had jusv

been released following surgery. He told

Mary that the victim had not returned

home ii previous evening.

On 16 September 1982, the body of a

young girl, later identified as Jeneane,

was discovered in the desert in east

Mesa. The victim had been shot twice in

the head with a large caliber weapon at

close range and a ligature was found

around her neck. Testimony of the

pathologist indicated that the ligature

found around the victim's neck did not

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contribute to her death, although it

could have been used to effect non-fatal

choking prior to death. Additionally,

tests for spermatazoa and seminal fluids

were negative. However, this was not

unexpected given the decomposing

condition of the body.

Because of a number of inconsistencies

in defendant's statements concerning the

victim's disappearance, particularly his

claims that the victim was instructed in

the use of firearms and that he had a

good relationship with the victim, the

defendant became a suspect in the

killing. Defendant's wife stated that

the relationship between the defendant

and victim was poor and that the

defendant had never instructed the victim

in use of firearms. However, no charges

were filed at that time and defendant

left the state of Arizona for New

Jersey.

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During the investigation, police

learned that on 13 September 1982

defendant had gone to a Mesa gun shop to

trade a rifle for an extra barrel for his

.357 revolver. Additionally, police

learned defendant had a prior criminal

record including a 1965 New Jersey felony

conviction for impairing the morals of a

child, and a 1971 New Jersey conviction

for uttering a check with a forged

endorsement. The police informed federal

authorities of the Alcohol, Tobacco, and

Firearms Bureau of facts gathered during

the investigation, and on 28 October

1982, defendant was arrested in Newark,

New Jersey for violating 18 U.S.C.

§ 1202(a), possession of a firearm by a

felon. The defendant was transported to

Phoenix, convicted in the U.S. District

Court for the offense, and sentenced to a

minimum of two years in the Federal

Prison in Springfield, Missouri. On

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release from Springfield, he was again

arrested on another charge of possessing

a firearm. He was convicted and received

another two year sentence.

This time defendant was sent to the Ray

Brook Federal Correctional Institution in

New York. While in Ray Brook, defendant

became friends with another inmate,

Anthony Sarivola, who was serving a

60-day sentence for extortion. Sarivola,

who was once involved with organized

crime, had by this time become a paid

informant for the Federal Bureau of

Investigation. In Ray Brook, Sarivola

masqueraded as an organized crime figure.

After Sarivola and defendant became

friends, Sarivola heard a rumor that

defendant was suspected of killing a

child in Arizona. Sarivola asked

defendant about the rumor, but defendant

denied that it was true. Sarivola told

his contact in the Federal Bureau of

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Investigation, Agent Walter Ticano, about

the rumor. Agent Ticano told Sarivola to

find out more about the rumor.

At this time, according to Sarivola,

defendant had been receiving “rough”

treatment from the other inmates

concerning the rumor, so Sarivola told

defendant that if he would tell him the

truth, Sarivola would give him help. On

20 October 1983 defendant admitted to

Sarivola that he had taken his

stepdaughter out to the desert on his

motorcycle, and then shot her twice in

the head with his .357 revolver.

Defendant further told Sarivola that he

choked, sexually assaulted, and made the

victim beg for her life before shooting

her. He also stated that he hid the

murder weapon in a pile of rocks at the

murder scene.

Sarivola was released from Ray Brook on

28 November 1983. Defendant was released

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in May of 1984. Sarivola and his

fiancee, Donna, picked up defendant at a

local bus terminal. Donna asked

defendant if he had any relatives or

friends he wished to see. Defendant

indicated he could not return to his home

because he had killed a little gir’ in

Arizona. They drove defendant to a

friend's house in Pennsylvania. In June

1984, defendant was arrested in New York

for another weapons violation.

On 4 September 1984 defendant was

indicted for first degree murder,

pursuant to A.R.S. § 13-1105. Prior to

trial, defendant moved to suppress

evidence of the statements made to

Sarivola and Donna. The trial court

denied his motions.

On 19 December 1985, defendant was

found guilty by a jury of first degree

murder of his stepdaughter. The trial

court found in its special verdict that

F inthe

the murder was committed in an especially

cruel, heinous and depraved manner. The

trial court found there were no

mitigating circumstances sufficient to

overcome the aggravating circumstances

and sentenced defendant to death. This

appeal foliows.

A. Trial Issues

1. MIRANDA WARNINGS

Defendant initially contends that he

was subjected to custodial interrogation

by Sarivola in violation of the fifth

amendment to the United States

Constitution. As a result, he claims the

statements made to Sarivola were

inadmissible because they were obtained

in violation of Miranda v. Arizona, 384

U.S. 436, 86 S. Ct. 1602 (1966).

In response to defendant's motion to

Suppress these statements, the trial

court ruled:

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The Court finds that the alleged

statements contained in the

State's Response (which was

adopted by the Defendant for

purposes of this hearing only) do

not fall within the Miranda

parameters. The Court does not

find that at the time the

statements were made that the

Defendant was in custody or

deprived of his freedom in a

Significant way. Although the

Defendant was in a Federal

Correctional Institution, there

was no “custodial interrogation".

In determining whether there was a

custodial interrogation, the Court

has considered 1) the site of the

interrogation, 2) whether the

investigation had focused on the

suspect, 3) whether the objective

indicia of arrest were present and

4) the length and form of the

interrogation. State v. Kennedy,

116 Ariz. 556, 570 P.2d 508.

Although the site of the

statements given in this case was

at a Federal Correctional

Institution, the Court finds that

no investigation had yet focused

on the Defendant, there was no

objective indicia of arrest with

respect to this matter, and the

length of the conversation was

minimal.

The Court has reviewed the case

of Mathis v. United States, 391

U.S. 1 (1976) and finds nothing

inconsistent with this Court's

present holding. This Court does

not read Mathis to hold that every

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statement made to a paid informant

as a result of a question asked

while a person is incarcerated is

a violation of Miranda. The

purpose of the Miranda protections

is to curtail coercive pressure to

answer questions which could flow

from a custodial interrogation of

someone charged with or suspected

of a crime. The Court does not

find that the statements allegedly

made in this case were the result

of promises, threats of coercion

by the Government or any of its

agents.

We agree.

In Mathis, the defendant was serving

time in a federal prison for filing false

Claims against the United States

government. While incarcerated, Mathis

was questioned by an agent of the

Internal Revenue Service (IRS) concerning

another matter in which Mathis had

neither been arrested nor charged.

Thereafter, the IRS brought criminal

charges against Mathis on the basis of

his statements to the IRS agent. Relying

on Miranda, the United State Supreme

Court held that it was reversible error

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for the trial court to have permitted the

introduction of Mathis's

self-incriminating statements given

without warnings as to his right to

remain silent and seek the assistance of

counsel.

Initially, defendant's argument that

Mathis applies appears meritorious. Like

Mathis, defendant was serving a prison

term when he made his incriminating

statements. Like Mathis, defendant was

questioned by a government agent about a

Crime for which he had neither been

arrested nor charged. Like Mathis,

defendant was charged with and ultimately

convicted of a crime based on his

incriminating statements. Mathis has,

however, been given a narrow

interpretation and may be distinguished

from the instant case.

The Ninth Circuit Court of Appeals has

noted:

The question in this case is

unique because Cervantes was

residing in jail when the

questioning occured [sic].

Cervantes relies on Mathis v.

United States, 391 U.S. 1, 88

S. Ct. 1503, 20 L.Ed.2d 381

(1968), for the proposition that

any interrogation during prison

confinement constitutes custodial

interrogation requiring Miranda

warnings. We do not read Mathis

so broadly.

x x x *

Adoption of Cervantes’

contention would not only be

inconsistent with Miranda but

would torture it to the illogical

position of providing greater

protection to a prisoner than to

his nonimprisoned counterpart. We

cannot believe the Supreme Court

intended such a result. Thus,

while Mathis may have narrowed the

range of possible situations in

which on-the-scene questioning may

take place in a prison, we find in

Mathis no express intent to

eliminate such questioning

entirely merely by virtue of the

interviewee's prisoner status.

Cervantes v. Walker, 589 F.2d 424, 427

(9th Cir. 1978).

We believe that, for Miranda purposes,

defendant was not in custody when

Sarivola questioned him. In considering

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whether an individual is in custody, we

have stated:

Because the circumstances of

each case will influence a

determination of whether an

individual is “in custody” for

purposes of administering Miranda

warnings, objective indicia of

custody must be considered. In

State v. Kennedy, 116 Ariz. 566,

569, 570 P.2d 508, 511 (App.

1977), the court of appeals listed

four factors, three of which we

approve, to consider in making the

determination of whether an

individual is in custody. These

three factors are: the site of

the questioning; whether objective

indicia of arrest are present; and

the length and form of the

interrogation. We also will

consider the method used to summon

the individual. See United States

v. Bautista, 684 F.2d 1286, 1292

(9th Cir. 1982).

State v. Cruz-Mata, 138 Ariz. 370, 373,

674 P.2d 1368, 1371 (1983). In the

instant case, Anthony Sarivola did not

place any restraints on the defendant,

and the defendant was free to leave

Sarivola's presence at any time. The

objective indicia of arrest were absent.

The mere fact that the defendant was

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incarcerated at the time the statements

were made does not mandate a finding of

custody. A prison inmate is not

automatically in “custody” within the

meaning of Miranda. United States v.

Cooper, 800 F.2d 412, 414 (4th Cir.

1986). “Custody” or “restriction” in the

prison context "‘necessarily implies a

change in the surroundings of the

prisoner which results in an added

imposition on his freedom of movement.'"

Cooper, 800 F.2d at 414 (citing United

States v. Conley, 779 F.2d 970, 973 (4th

Cir. 1985), cert, denied, Conley v.

United States, 107 S. Ct. 114 (1986)).

We do not believe the defendant was

subject to custodial interrogation by

Sarivola. Miranda warnings were not

required. We find no error.

2. VOLUNTARINESS OF CONFESSION

Defendant next contends that the trial

court erred in determining that his

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confession to Sarivola was voluntarily

made. Defendant argues that the

confession was the product of coercion

and its use during the trial was a

violation of due process under the fifth

and fourteenth amendments of the United

States Constitution and Art. 2, § 4 of

the Arizona Constitution.

Defendant contends that because he was

an alleged child murderer, he was in

danger of physical harm at the hands of

other inmates. Sarivola was aware that

defendant faced the possibility of

retribution from other inmates, and that

in return for the confession with respect

to the victim's murder, Sarivola would

protect him. Moreover, the defendant

maintains that Sarivola's promise was

“extremely coercive” because the

“obvious” inference from the promise was

that his life would be in jeopardy if he

did not confess. We agree.

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The state must show by a preponderance

of the evidence that a confession is

freely and voluntarily made. State v.

Graham, 135 Ariz. 209, 211, 660 P.2d

460, 462 (1983). A trial court's

determination regarding the

voluntariness of a confession however,

must be viewed in a totality of the

circumstances and will not be upset on

appeal unless the defendant shows that

the court's ruling was clear and

manifest error. Jd. at 211, 660 P.2d at

462.

In the instant case, at the hearing on

the motion to suppress, defendant

provided the trial court with little or

no evidence tending to support

defendant's claim that he was in danger

and that Sarivola used this fact to

coerce a confession. Thus, on the

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evidence before it, the trial court did

not abuse its discretion. }

Since we are mandated to search the

record for fundamental error, A.R.S.

§ 13-4035, we note that based on

defendant's argument that the confession

was involuntary, the trial court

instructed the jury as follows:

You must not consider any

statetments [sic] made by the

defendant to a law enforcement

officer unless you determine beyond

a reasonable doubt that the

defendant made the statements

; voluntarily. The defendant's

statement is not voluntary whenever

a law enforcement officer used any

sort of violence or threats or any

: promise of immunity or benefit.

. As a result, the trial court instructed

the jury on the issue of voluntariness,

: but failed to instruct the jury on

l After the ruling on the motion to

suppress, Sarivola testified that the

defendant had been receiving “rough

treatment from the guys, and if the

defendant would tell the truth, he could

be protected." As discussed below this

promise rendered the confession

involuntary.

;

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whether Anthony Sarivola was a law

as

enforcement officer and it is not clear

whether the jury understood Sarivola to

be a “law enforcement officer". We

believe the trial court erred in not

ken Ot Bs OR. OR ey

instructing the jury on who would be a

"law enforcement officer” when

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considering the voluntariness of the

confession made.

At the time defendant admitted the

killing to Sarivola, Sarivola was a paid

government agent working with the F.B.I.

Prior to the confession, Sarivola passed

rumors of the defendant's alleged murder

of a child along to the F.B.I. On being

informed of these rumors, the F.B.I.

requested that Sarivola find out more.

At the same time, the defendant had been

receiving rough treatment from other

inmates allegedly in view of the fact

that he may have been a child murderer.

In response to Sarivola's offer of

-A-22-

protection, the defendant confessed. As

we have stated:

To be deemed free and voluntary

within the meaning of the fifth

amendment, a confession must not

have been obtained by “any direct

Or implied promises, however

slight, nor by the exertion of any

improper influence” (emphasis

added). Malloy v. Hogan, 378 U.S.

l, 7, 84 S. Ct. 1489, 1493, 12

L.Ed.2d 653 (1964) (quoting Bram

v. United States, 168 U.S. 532,

543, 18 S. Ct. 183, 187, 42 L.Ed.

578 (1897)). These standards also

apply to the states through the

fourteenth amendment. Malloy v.

Hogan, 378 U.S. at 6, 84 S. Ct. at

1492.

In Arizona, confessions are

prima facie involuntary and the

burden is on the state to show

that the confession was freely and

voluntarily given. State v.

Hensley, 137 Ariz. 80, 87, 669

P.2d 58, 65 (1983). The burden of

proof is that of a preponderance

of the evidence. Id. While the

trial court's determination that a

confession was voluntary will not

normally be disturbed on appeal,

the record must contain evidence

from which the appellate court can

find that the state carried its

burden of proof. State v. Hall,

120 Ariz. 454, 456, 586 P.2d 1266,

1268 (1978). Bearing these

requirements in mind, we have

examined the entire record and

find that it does not contain

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sufficient evidence to support the

trial court's findings of

voluntariness.

State v. Thomas, 148 Ariz. 225, 227, 714

P.2d 395, 397 (1986).

In rebuttal to the defendant's motion

to suppress, the state alleged that at no

time did the defendant indicate he was in

fear of other inmates or did he seek

Sarivola's “protection.” Additionaily,

the state says that the defendant only

spoke to Sarivola in conversational tones

about what he had done to his

step-daughter. Such a response is

insufficient to create a prima facie

establishment of voluntariness by a

preponderance of the evidence. Hensley,

137 Ariz. at 87, 669 P.2d at 65, later

appeal, State v. Hensley, 142 Ariz. 598,

691 P.2d 689 (1984). The statements

should have been suppressed.

In view of that fact, however, a

Similar and even more explicit confession

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was also made to Donna, and this latter

confession was admissible and not the

"fruit of the poisonous tree.” Hence,

any error occurring in the instruction on

the voluntariness of the Sarivola

confession is harmless beyond a

reasonable doubt.

The basic federal standard for harmless

error states:

{[B)efore a federal constitutional

error can be held harmless, the

court must be able to declare a

belief that it was harmless beyond

a reasonable doubt.

Chapman v. California, 386 U.S. 18, 24,

87 S. Ct. 824, 828 (1967).

The court later stated:

Our judgment [on the harmlessness

of the error] must be based on our

own reading of the record and on

what seems to us to have been the

probable impact of the [challenged

evidence] on the minds of én

average jury.

Harrington v. California, 395 U.S. 250,

254, 89 S. Ct. 1726, 1728 (1969).

The Harrington court concluded that the

admission of certain evidence was

harmless error because it was merely

cumulative of other legitimately admitted

evidence on the same issues and that such

“overwhelming evidence” otherwise

established defendant's guilt. Id. See

also United States v. Hasting, 461 U.S.

499, 510-12, 103 S. Ct. 1974, 1981-82

(1983) (indicating continuing adherence

to “beyond a reasonable doubt" standard).

Federal courts have approached the

determination of harmless error on a

case-by case basis. When a subsequent

confession is abtained constitutionally,

there is a definite inclination to hold

that the admission of prior

“inadmissible” confessions constitutes

harmless error. See, e.g., United State

[sic] v. Johnson, 816 F.2d 918, 923 (3rd

Cir. 1987) (admission of invalid oral

confession was harmless error when

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subsequent written confession was

admissible and more credible); Bryant v.

gt 785 F.2d 364, 367 (lst Cir.), cert,

denied, 477 U.S. 907, 106 S. Ct. 3281

(1986) (court admitted subsequent written

confession that strongly indicated

guilt); Martin v. Wainwright, 770 F.2d

918, 932-34 (llth Cir. 1985) cert.

Genies, 0.8... 107 8. Ct. 307

(1986) (improper admission of first

confession was harmless error when a

lawful confession was later admitted at

trial); United States v., Packer, 730 F.2d

1151, 1157 (8th Cir. 1984) (harmless

error when subsequent statements

reiterated earlier inadmissible

statements and strongly indicated guilt).

Arizona courts follow the Chapman

"beyond a reasonable doubt" standard.

See, e.g., State v. Montes, 136 Ariz.

491, 497, 667 -P.2d 191, 197 (1983)

(subsequent statement recounted in detail

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the events of the crime and rendered

initial statement innocuous). In State

v. Thomas, 130 Ariz. 432, 435-36, 636

P.2d 1214, 1217-18 (1981), the court

expressed the harmless error rule

differently:

If, however, it appears that the

error did contribute to or

Significantly affect the verdict,

fundamental error was committed

and reversal is mandated on due

process grounds.

Still another Arizona formulation was

jiven in State v. Winegar, 147 Ariz. 440,

$50, 71l P.2€ $79, $89 (1985):

An error is harmless only if no

reasonable probability exists that

rhe verdict might have been

jifferent had the error not been

sommitted.

see also State v. Sands, 145 Ariz. 269,

74, 700 P.242 1369, 1374 (App. 1985)

.mproper admission of privileged

testimony was harmless error when the

evidence was “not critical” to the

State's case).

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Whether the standard is called “beyond

a reasonabie doubt," or “contribute to or

Significantly affect," or "no reasonable

probability,” or “not critical” or some

other formulation, the Arizona courts

seem to focus on whether there is

overwhelming additional evidence

sufficient to establish the prosecution's

case. See, e.g., State v. Castaneda, 150

Ariz. 382, 387, 724 P.2d 1, 6 (1986)

(admission of coerced confession harmless

error). See also State v. Hensley, 137

Ariz. 80, 88-89, 669 P.2d 58, 66-67

(1983) (confession “merely cumulative of

other, overwhelming evidence on the same

point").

In the present case, the defendant's

second confession established his guilt.

Physical evidence from the wounds, the

ligature, location of the crime scene and

motorcycle tracks corroborated the

confession., Therefore, the invalid first

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confession was cumulative of the

admissible second confession. Moreover,

due to the overwhelming evidence adduced

from the second confession, if there had

not been a first confession, the jury

would still have had the same basic

evidence to convict defendant. The

admission of the first confession was,

therefore, harmless error beyond a

reasonable doubt.

3. RIGHT TO COUNSEL

Defendant next argues that it was

improper for Sarivola to question him

without the presence of counsel under the

sixth and fourteenth amendments to the

United States Constitution and Art. 2 § 4

of the Arizona Constitution. Although

defendant admits he was not under

indictment for murder at the time the

confession occured [sic], he nonetheless

Claims that he was the focus of the

investigation and incarcerated under this

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pretense in order to obtain incriminating

statements. We do not agree.

The sixth amendment right to counsel

does not attach during pre-indictment

questioning. State v, Ortiz, 131 Ariz.

195, 201, 639 P.2d 1020, 1026 (1981),

cert. denied, Ortiz v. Arizona, 456 U.S.

984, 102 S. Ct. 2259 (1982). At the time

of the confession, the defendant was

serving a term on an unrelated charge and

had not yet been indicted for murder.

Moreover, based on a review of the

record, there is neither evidence nor any

allegations that at the time of the

confession, either Sanmivola or his FBI

contact were aware of any official

investigation in Arizona. Under these

facts, no adversary proceeding had begun

when defendant was questioned by

Sarivola. Defendant's sixth amendment

right to counsel was not violated.

—A-3i-

a Net wa" eet ~

4. FRUIT OF THE POISONOUS TREE

Defendant next argues that his

confession to Donna should have been =

Suppressed as the result of Sarivola's

viclation of defendant's fifth and sixth

amendment rights approximately six months

earlier, based on the “fruit of the

poisonous tree” doctrine. See Wong Sun

v. United States, 371 U.S. 471, 484-86,

83 S. Ct. 407, 416-17 (1963). Moreover,

the defendant maintains that this

Originsl confession “let the cat out of

the bag" and thus the voluntariness of

his confession to Donna was not

sufficient to “purge the taint” of the

illegally-obtained evidence. Brown v,

Illinois, 422 U.S. 590, 603-04, 95 S. Ct.

2254, 2261 (1975). ‘Y ,

s

Assuming, as we have, that the

confession to Sarivola was the result of

a violation of defendant's fifth

amendment rights, the later confession to

-A-32-

Donna might be inadmissible. Brown v.

Iliinois, 422 U.S. at 603-04, 95 S. Ct.

at 2261. om oney if the taint of the

illegal conduct was sufficiently

attenuated, that statement may be

admitted as an otherwise voluntary

confession, considering the time since

the original statement and the presence

Pe ee IE tS ee ee a te eee

of intervening circumstances. Rawlings

2

-

v. Kentucky, 448 U.S. 98, 107-10, 100

S. Ct. 2556, 2562-64 (1980).

In the present case, some six months

had elapsed between the original

confession to Sarivola and the confession

to Donna. Moreover, the defendant made

his confession to Donna after his release

from prison, presumably at a time when he

no longer needed Sarivola's protection.

Lastly, tne defendant made the confession

in the course of a casual conversation

with Donna, who was not an agent of the

state.

-A-33-

When viewed in this context, any

"taint" from the earlier confession was

sufficiently attenuated to permit the

admission of Donna's testimony. Any

argument based on “the fruit of the

poisonous tree” doctrine is, therefore,

inapplicable.

5. PHOTOGRAPHI@ EVIDENCE

Defendant next contends that the trial

court erred in admitting a “gruesome and

repulsive” photograph showing a ligature

around the victim's neck. Before

admission into evidence, the photograph

was “blacked-out”" to show only portions

of the neck and shoulders. The

photograph did not show the face or the

arms.

We have previously stated that relevant

evidence may be admitted despite its

tendency to inflame the passions of the

jurors if its probative value outweighs

the danger of unfair prejudice. Ariz. R.

-A-34-

Da DAR She spt PE hide NO BERN S46 GR BR I MO as 6

new 3

we

~~

Evid. 401, 403; State v. Bracy, 145 Ariz.

520, 533, 703 P.2d 464, 477 (1985), cert.

denied, Bracy v. Arizona, 474 U.S. 1110,

106 S. Ct. 898 (1986); State v. Chapple,

135 Ariz. 281, 288, 660 P.2d 1208, 1215

(1983).

We believe the photo was relevant to a

fact in issue. The defendant at trial

asserted, by way of questioning, that the

victim was not choked before being shot.

The photograph shows the ligature

positioned on the victim's neck. The

photograph is relevant to the contested

issue of whether the victim was choked.

Accordingly, the photograph is probative

of this issue and properly admitted by

the trial court. State v. Hallman, 137

Ariz. 31, 34, 668 P.2d 874, 877 (1983).

Additionally, we find the blacked-out

photograph was neither particularly

gruesome, repulsive nor inflammatory. We

find no error.

-A-35-

6. CHARACTER EVIDENCE

Defendant challenged a number of

instances where evidence of character and

prior bad acts were erroneously admitted.

a. The “spanking” incident

At trial, the victim's mother and

former wife of the defendant testified

that on one occasion, the defendant had

spanked the victim with a spanking board,

leaving bruises on her buttocks. The

incident was reported to the police by

school officials, who later called on the

defendant to investigate the matter.

Subsequently, defendant told the victim

he would “get even" with her, and that he

would “kill her fucking ass." Defendant

argues that this evidence was improperly

admitted under Arizona Rules of Evidence,

404(a)(1) because defendant's character

had not been put in issue. We do not

agree.

-A-36-

Admittedly, Rule 404(a)(1) precludes

the state from introducing character

evidence to show that defendant acted in

conformity with such character unless the

character evidence is first offered by

the accused.

We need not, however, determine whether

the evidence was admissible under this

rule. We believe that the evidence of

the defendant's troubled relationship

with the victim was admissible on the

issue of motive pursuant to Rule 404(CL),

which reads:

Evidence of other crimes,

wrongs, or acts is not admissible

to prove the character of a person

in order to show that he acted in

conformity therewith. It may,

however, be admissible for other

purposes, such as proof of motive,

opportunity, intent, preparation,

plan, knowledge, identity, or

absence of mistake or accident.

Rule 404(b) Arizona Rules of Evidence.

This evidence of prior trouble between

ee

the victim and the defendant derives its

-A-37-

relevance from the fact that the existence

of prior ill will toward the victim not

only renders the commission of the crime

more probable, but also tends to show the

malice or motive of the defendant in

perpetrating the crime. Evidence of this

prior bad act, taken together with

defendant's expressions to get even with

the victim, show a continuing state of mind

from which a jury could properly infer that

the defendant had a motive to kill the

victim. State v. Jeffers, 135 Ariz. 404,

418, 661 P.2d 1105, 1119 (1983), cert.

denied, Jeffers v. Arizona, 464 U.S. 865,

104 S. Ct. 199 (1985), reversed on other

grounds, Jeffers v, Ricketts, 832 F.2d 476,

480-481 (9th Cir. 1987).* We believe

2 The holding in Jeffers v. Ricketts

on remand for resentencing may appear

to overrule Woratzek v. Ricketts, 820

F.2d 1450 (9th Cir. 1987). Woratzek,

held that the factual findings of the

Arizona Court in imposing the death

-A-38-

believe the evidence was properly

admitted.

b. Defendant's association with

Anthony Sarivola

Defendant next asserts reversible error

in allowing evidence to be admitted of

defendant's association with Anthony

Sarivola. The defendant argues that such

evidence is prejudicial because of

Sarivola's connection with organized

Crime in New York. The state maintains

(footnote continued)

sentence is entitled to deference

pursuant to 28 U.S.C. § 2254(d). As a

result, a motion for rehearing is

pending in the Ninth Circuit to

reconcile these decisions and to

question the ability of the court of

appeals to independently give a

narrowing construction to the

aggravating factors for upholding the

death sentence. In a similar

Situation, the United States Supreme

Court recently granted review of this

issue decided in Maynard v.

Cartwright, 822 F.2d 1477 (10th Cir.

1987), in which the federal court of

appeals interpreted the aggravating

factors in Oklahoma's death sentencing

scheme, cert, granted, Maynard v,

Cartwright, 108 S. Ct. 693 (1988).

-A-39-

that such evidence was necessary to

establish why Sarivola was in prison and

the circumstances under which defendant

came to make his confession. We agree

with the State.

Initially, we note that evidence of

Sarivola’'s organized crime connections

was relevant evidence admissible under

Rule 401 to show why defendant may have

confessed to Sarivola to seek protection

from the rest of the inmate population.

Moreover, Sarivola's crime connection was

relevant to show why defendant would

confess to someone of Sarivola's ilk in

seeking protection.

Although Sarivola's organized crime

connections may be relevant, they may

still be excluded if its probative value

is substantially outweighed by the danger

of unfair prejudice. Rule 403,

Ariz.R.Evid., State v. Hensley, 142 Ariz.

598, 602, 691 P.2d 689, 693 (1984). In

-A-40-

determining the relevancy and

admissibility of evidence, the trial

judge is invested with considerable

discretion. Id. at 602, 691 P.2d at

693. Such discretion will not be

disturbed on appeal unless clearly

abused. Id. In the instant case, the

defendant has failed to show how evidence

of Sarivola's organized crime connections

would cause prejudice to defendant. That

Sarivola was involved with organized

crime reflected on Sarivola's character,

not the defendant's character In so far

as Sarivola testified as to defendant's

corfession, Sarivola's organized crime

; connection could serve to impeach

Sarivola and may have, in fact, been

beneficial to defendant rather than

prejudicial. We believe the probative

7 value of this evidence outweighs any

prejudicial effect. Rule 403,

Ariz.R.Evid. 17A A.R.S.

-A-41-

We find no error.

c. Prior felony convictions

Defendant next contends he was

prejudiced by the admission of evidence

regarding his 1971 felony conviction for

issuing bad checks, and his 1983 felony

conviction for being a felon in

possession of a firearm. The state

points out however, that the defendant

did not object to the introduction of the

prior convictions at trial and,

therefore, waived any right to assert

that the trial court erred on appeal.

| State v. Thomas, 130 Ariz. 432, 435, 636

f P.2d 1214, 1217 (1981).

During the pre-trial proceeding, it

became obvious that evidence of

defendant's jail time would be admitted.

This would be true of defendant's

.

7 confession to Sarivola as well as the

:

| complete story of defendant's confession

to Donna Misch (Sarivola.) Thus, at

-A-42-

least one of defendant's prior

convictions would become known to the

jury. Knowing this, the trial court in

its voir dire of the jury asked:

There will be in this case

evidence that Mr. Fulminante has

been convicted of other crimes in

the past. I'll give you further

instructions as to the legal

effects of that kind of evidence

and how you should consider that .

evidence.

Would the fact, however, just

knowing that Mr. Fulminante has

had prior convictions in the past,

have any effect on your ability to

render a fair and impartial

verdict in this matter?

& ® & x

Later, the following occurred outside the

presence of the jury.

The Court: The next matter was

a Motion in Limine filed by the

State dated November 25, relating

| to a request that the court enter

an order allowing State to inquire

of its witnesses, and that the

Defendant, should he take the

stand, and of his witnesses, if

any, concerning the fact that the

Defendant was incarcerated in

Raybrook Federal Prison in New

York State. Is there any argument

on this motion?

le eh ae ee SPY ne Le See ne See ree aT we Se a

heretical Aen ee

awe)

|

i

;

z

Mr. Scull (prosecuting

attorney): Judge, I don't think

SO. Most of that is moot now as I

understand it because there has

been an admission in the

questioning to the jury about the

fact that the Defendant was

incarcerated, so I would assume

then that I would be able to go

into this at trial, to a limited

extent to at least show the

Surroundings concerning the

confessions.

The Court: It's really the

Opposite of a motion in limine.

It's a motion to -- anticipating a

possible objection, I suppose; is

that right?

Mr. Scull: Well, yes. I think,

because as the Court is aware, any

time you mention that a Defendant

has been in prison on other

Charges, you have got an almost

instant mistrial. So to avoid

that situation, I want to bring it

up ahead of time.

The Court: All right. Do you

wish to be heard on that,

Mr. Koopman?

Mr. Koopman (defendant's

attorney): Yes, Your Honor. Your

Honor, I have already indicated to

Mr. Scull that it would be

ludicrous of us not to bring into

the fact or bring in or allow in a

direct case presented by

Mr. Scull, the fact that my client

was incarcerated in Ray Brook

Prison. Otherwise, there could be

‘

-A-44-

ee ee ee i ee

no explanation for the

conversation between him and

Mr. Sarivola and it would

certainly hamper my attempts to

attack Mr. Sarivola's credibility.

The problem that arises with

this, Your Honor, is that I do not

want the jury left unknowledgeable

as to what the specific charge was

and if the fact was he was doing

time for illegal possession, as a

felon, of a firearm, which was the

.357 magnum, I understand, which

he owned here in Arizona.

Well, if we tell the jury that

he was doing time in Ray Brook for

possession, as a felon in

possession of a firearm, they are

going to be trying to guess at

what the underlying felony was.

I, therefore, have indicated to

Mr. Scull that I'll stipulate and

agree that he may bring into

evidence the fact that my client

was convicted in 1971 of the crime

of uttering a check by false

endorsement, which in fact he was

found guilty of.

x * * a

I suggest to you, Your Honor.

that this has been Mr. Scull'‘s

attempt to lay an undercurcent of

sexual misconduct before the jury

pertaining to my client. There's

no evidence in his case at all of

any sexual misconduct by my client

and therefore, Your Honor, I would

request that the Court order at

-A-45-

Wawa e hy Pi ae

this poinc in time that neither on

the direct case as put on by

Mr. Scull from his witnesses, nor,

if my client takes the stand, in

his cross-examination of my client

as to his prior convictions should

that 21 year old conviction be

allowed into evidence.

The Court: Well, okay. Just for

purposes of clarification, his

first request was to allow evidence

to come in of the fact that your

client was imprisoned in New York,

what he was imprisoned in New York

for, and the underlying felony for

which that crime he was in prison

for related.

Mr. Koopman: And I'm saying as

long as it just goes back to the

1971 conviction for the uttering a

false check, which was a felony,

and not back to the 1964 conviction

for carnal abuse of a child.

Defendant's attorney realized that some

evidence of defendant's prior convictions

would come into evidence. Indeed, the

trial court had already mentioned a prior

conviction in his remarks to the jury.

The defendant's attorney agreed that the

conviction for uttering false checks and

felon in possession of a firearm could be

heard and at the same time was successful

-~A-46-

in k2eping the more prejudicial

conviction of carnal knowledge of a child

from the jury. Since the convictions for

uttering false checks and felon in

possession of a firearm were introduced

for the purpose of legitimate trial

Strategy by defendant's attorney, he

seemingly struck a good bargain in

allowing the conviction to come in while

keeping evidence of the conviction for

Carnal knowledge out. We find no error.

qd. Relationship with Wife

Defendant next contends that the

admission of statements made by a police

detective in the jury's presence

concerning defendant's deteriorating

relationship with his wife prior to the

murder was improper. The following took

place before jury:

Q. (By Mr. Scull): Did you ever

discuss with Mr. Fulminante on the

16th or 17th his relationship with

his stepdaughter, Jeneane?

“A-47~

Te

Te ere eo ee

Pe

eh —

A. [By Mark Jones]: Yes.

Q. What was his response?

A. He felt that his relationship

with his daughter was good. In

fact, he made the comment that

because Mary worked, and he

didn't, that Jeneane would come to

him with her problems.

Q. All right. Did he indicate or

did you ever ask him how his

relationship was with Mary?

Mr. Koopman: Objection,

irrelevant.

The Court: Sustained.

Well, wait a minute, let me --

Mr. Scull: There's going to be

a tie in, Judge.

The Court: I'll let you -- on

what basis are you asking that

that be -- why are you objecting

to that?

Mr. Koopman: Your Honor, I

don't see what my client saying

his relationship with his wife is

has to do with the death of this

little girl. I also -- I also

think that it might go -- we might

be [infringing] on the spousal

relationship, Your Honor, and the

privilege attached thereto, which

may come into issue at sometime in

this case.

The Court: Let me hear you.

-A-48-

Mr. Scull: JT'm asking what

Mr. Fulminante said about his

relationship with Mary. One of

the things that the State expects

to prove is that the relationship

_ between Oreste Fulminante and Mary

was not good. It was

deteriorating rapidly and that's

one of the reasons that we believe

he committed this homicide, was to

get rid of this girl so that he

could re-establish his

relationship with his wife.

The Court: Let me see counsel

at the bench for a moment, please.

A ee oe ee HE

(Whereupon, a discussion was

held at the bench between the

Court and both counsel, out of the

hearing of the jury and the Court

Reporter.)

The Court: The objection is

sustained.

Defendant first argues that the

prosecutor's argument was clearly

improper, and that it should have been

stricken. Defendant is, however,

precluded from arguing for the first time

On appeal that the prosecutor's comments

Should have been stricken where he failed

to request the trial court to do so.

-A-49-

State v. Thomas, 130 Ariz. 432, 435, 636

P.2d 1214, 1217 (1981).

Defendant further argues that it was

prejudicial for the jury to hear the

argument on the objection to the

question. Again, defendant did not

request to have the matter heard outside

the jurors' presence. In any event,

defendant suffered no prejudice because

of the prosecutor's comments. The state

subsequently presented direct and more

damaging testimony from defendant's wife

that defendant's relationship with her

was troubled. We find no error.

e. Evidence that other persons

Suspected defendant had committed

the crime

Defendant next contends the trial court

erred in admitting testimony from a

police detective that others felt

defendant had committed the crime. This

matter is raised as a separate grounds

-A-50-

for error in item 9 of the Trial Issues.

We will consider the question under that

heading.

€. Evid . siento: jisli} ,

defendant

The victim's mother testified as

follows:

ee ee

Q. [By Mr. Scull] Was there a

time when she spent the night

over at a friend's house and

that was without prior approval

from you?

A. [By Mary Elizabeth Hunt] Yes.

Q. Okay. On that occasion, were

you advised of that, that she

was doing that?

A. I had»found out where she was.

I did not know that she was

planning to do that without my

knowledge, no, but I did find

out where she was.

Q. All right. What did you do

about it?

A. Well, I made an arrangement

with the mother of the little

girl whose house where she went

to stay would take care of her

for that weekend until I had a

Chance to collect my thoughts

and decide what we should do

about it.

a ~ —- 8 ee eee

a)

All right. What did you do

about it?

A. Well, we decided that, you

know, she came home over the

weekend, and I decided to talk

to her, and to ask her, you

know; she told me why she did

what she done and it was

because she didn't want to stay

in the house with Oreste any

more and she really didn't want

to come back home if he was

going to stay.

Q. Is that the only occasion like

that?

A. Jeneane has never, ever, ever

left that house. That was the

first time.

Defendant argues that evidence of the

victim's dislike and desire not to

continue living in the same household

with defendant was improperly admitted.

The defendant further maintains the

evidence was victim's opinion as to the~

defendant's character, and thus is

prejudicial and irrelevant. We disagree.

We believe that under the circumstances

in which the statements were made, the

Statements lie within an exception to the

-A-52-

hearsay rule. Pursuant to Rule 803(3),

Ariz.R.Evid., the then existing state of

mind of the victim may be admissible to

show the victim's dislike of the

defendant.

A statement of the declarant's

then existing state of mind,

emotion, sensation, or physical

condition (such as intent, plan,

motive, design, mental feeling,

pain, and bodily health), but not

including a statement of memory or

belief to prove the fact

remembered or believed unless it

relates to the execution,

revocation, identification, or

terms of declarant's will.

Ariz.R.Evid. 803(3) 17A A.R.S.

The victim's desire in this case was

; not being offered to prove saythins

remembered or believed. It fits within

the state of mind exception, and it was

| relevant. Rule 401 provides:

| "Relevant evidence” means evidence

| having any tendency to make the

existence of any fact that is of

consequence to the determination

of the action more probable or

less probable than it would be

without the evidence.

De Oe ae

ss

As we have stated:

Evidence is relevant if it has

any basis in reason to prove a

material fact in issue or if it

tends to cast light on the crime

charged.

State v. Moss, 119 Ariz. 4, 5, 579 P.2d

42, 43 (1978).

The wish of the victim not to live in

the same house with the defendant was

relevant in this case because it was used

to show that the victim and defendant did

not get along and ill feelings existed

between the parties. Establishing that

the victim disliked the defendant and

hence that the family situation was not

harmonious, were factors in disputing

defendant's claims that he had no reason

Or motive to murder the victim.

Additionally, since the defendant claimed

that the victim and he got along well,

and no feelings of ill will between the

parties existed, the statements of the

victim's mother are relevant to dispute

-A-54-

se -

this contention. See People v. Arcega,

32 Cal. 3d 504, 527, 186 Cal. Rptr 94,

107, 651 P.2d 338, 350 (1982).

This kind of statement is unlike the

one recently held inadmissible and

irrelevant by this court. State v,

Charo, slip op. at 6 (filed April 21,

1988). In that case, this court held

that the victim's fear is irrelevant to

prove the defendant's conduct. Id. at

8. Conversely, in this case, the

evidence of the victim's dislike, as

opposed to fear, of the defendant is not

being used to show the defendant's

conduct; rather it is being used as

evidence of the defendant's motive for

killing the victim.

We believe the evidence was admissible

and relevant for the purpose of

establishing the troubled relationship

between the defendant and the victim and

that the probative value of the disputed

-A-55-

evidence was not outweighed by the danger

of unfair prejudice. Jeffers, 135 Ariz.

at 417, 661 P.2d at 1128. We find no

error.

g. Defendant's reputation for

truthfulness

During direct examination, Sarivola

testified as follows:

Q. [By Mr. Scull]: Now, what kind

of reputation, if you know, did

Mr. Fulminante have around the

prison for being truthful and

honest?

A. [By Mr. Sarivola]: Well, most

people believe him not to be

truthful.

Defendant argues this evidence was not

presented for the purpose of impeachment,

because the defendant did not testify,

but rather presented to show the

defendant was of bad character, in

violation of Rule 404(a), Arizona Rules

of Evidence. Defendant also contends the

admission of the evidence violated Rule

608(a), Arizona Rules of Evidence.

-A-56-

ee ee

We need not consider this allegation.

Defendant made no objection and may not

raise the question on appeal. We have

previously held:

It is well established that

failure to object to evidence,

testimony or arguments waives

these matters on appeal. See,

e.g. State v. Wilson, 113 Ariz.

308, 533 P.2d 235 (1976).

Additionally, a party must state

distinctly the matter to which he

objects and the grounds of his

objections. State v. Baca, 102

Ariz. 83, 425 P.2d 108 (1967):

17A A.R.S. Rules of Evidence, Rule

103(a)(1). By failing to make a

timely, specific objection to the

prosecutor's remarks or the

victim's testimony, appellant has

waived these issues on appeal

absent a finding of fundamental

error.

State v. Thomas, 130 Ariz. 432, 435, 636

P.2d 1214, 1217 (1981). See also, State

v. Smith, 136 Ariz. 273, 277, 665 P.2d

995, 999 (1983), appeal after remand, 141

Ariz. 510, 687 P.2d 1265 (1984).

The error if such, was waived.

oA~$7-

7. EVIDENCE THAT A THIRD PARTY

COMMITTED THE MURDER

—

a

Defendant claims the trial court erred

in precluding relevant evidence bearing

on reasonable doubt as to the defendant's

guilt. Defendant's offer of proof showed

that a neighbor of the victim and the

defendant drove a motorcycle, owned a

.357 magnum handgun, had attempted to

kill a police officer on one occasion,

and was suspected of committing crimes

against children. Defendant failed,

however, to offer any evidence that

connected the neighbor to the crime in

this case. The court denied the

defendant's request to introduce this

evidence.

Before a defendant may introduce

evidence that another person may have

committed the crime, the defendant must

show that the evidence has an inherent

tendency to connect such other person

-A-58-

Do Fe ee ORL oy.

with the actual commission of the crime.

Vague grounds of suspicion are not

sufficient. State v, Williams, 133 Ariz.

220, 231, 650 P.2d 1202, 1213 (1982).

The evidence offered by the defendant,

although establishing that the third

party may have had the ability to commit

the crime, failed to connect him to the

murder. The trial court's discretion in

this matter will not be disturbed unless

it has been clearly abused. [Id. at 230,

650 P.2d at 1212. We find no abuse of

discretion by the trial court.

8. EVIDENCE OF ANTHONY SARIVOLA'S

CHARACTER

Prior to trial, the trial court ruled

that the defendant would be allowed to

impeach Anthony Sarivola with a specific

instance in which he had lied to an FBI

agent. As a matter of trial strategy,

the prosecutor disclosed the incident

during his direct examination of the FBI

-A-59-

agent. The prosecutor then asked the

agent his opinion as to Sarivola's

credibility. Defendant unsuccessfully

objected.

On review, defendant asserts the

admission of the testimony violated the

Arizona Rules of Evidence which state:

The credibility of a witness may

be attacked or supported by

evidence in the form of opinion or

reputation, but subject to these

limitations: (1) the evidence may

refer only to character for

truthfulness or untruthfulness,

and (2) evidence of truthful

character is admissible only after

the character of the witness for

truthfulness has been attacked by

Opinion or reputation evidence or

otherwise.

Ariz. R. Evid. 608(a).

We do not agree. Under Rule 608(a), a

witness may testify as to his opinion of

another party's truthfulness if the

party's truthful character has been

attacked. United States v. Hilton, 772

F.2d 783, 786 (llth Cir. 1985). In the

instant case, the trial court had ruled

-A-60-

that Sarivola's truthful character could

be attacked by defendant. It was not

error for the state to “draw the sting"

by not only introducing on direct

examination the evidence of instances in

which Sarivola had lied to the FBI agent,

but of the agent's opinion of Sarivola's

character. We find no error.

9. ADMISSION OF OPINION OF GUILT

During the cross-examination of the

investigating detective, defense counsel

inquired as to why he thought the

defendant had committed the murder and

the basis of his opinion. The defense

counsel first read from a treatise on the

Fundamentals of Criminal Investigation.

Q. (By Mr. Koopman]: "The best

hypotheses must be objectively

tested and modified or rejected

when contrary evidence is

uncovered. The investigator must

not permit his observations and

interpretations to be biased in

favor of the hypotheses.”

Would you like to read?

A. [By Mark Jones]: No, sir.

oAo$h-

Q. Okay. Do your [sic] understand

what Mr. O'Hara is saying in that

statement?

A. Yes, sir, I do.

Q. Do your [sic] agree with that

statement?

A. Yes, I do.

Q. And in fact, would it be fair

to say that that type of criminal

investigation technique warning

warns you not to allow a bias

toward a suspect interfere with

your investigation?

Haven't you learned that, also,

in other courses, in other

investigative courses throughout

your career?

A. Yes, sir.

Q. But on September the 16th, just

Shortly after the body of little

Jeneane Hunt was found, you put it

in your mind that this man was the

killer of that little girl;

correct?

A. Yes, sir, I knew he was.

Q. You knew he was?

A. Yes, Sir.

Q. You knew he was from what

physical evidence that you had at

that point in time, Officer?

-A-62-

A. From the inconsistent

statements at that time.

Q. From the inconsistent

statements wherein he said if I

can recall, "I drove toward Apache

Junction," when in fact he told

Officer Riggs he drove toward

Phoenix, correct?

A. That's only one.

Q. That's one. Another one is, he

told Riggs he would talk to

neighbors in the morning, but you

found out he didn't talk to

neighbors until the afternoon;

correct?

A. He did not talk to neighbors.

He talked to a neighbor.

Q. Talked to a neighbor. And for

those two inconsistencies, you

considered this man a murderer of

his stepchild, and therefore, set

out to prove him guilty; is that

correct?

A. No, sir. There's much more to

it than that.

Q. Well, you didn't have much more

on September the 16th. At that

point in time, the autopsy hadn't

been done?

A. I knew that he had purchased an

extra barrel for his weapon.

Q. Okay.

-A-63-

A. I knew that he was telling us

that he had sold a gun to buy milk

and bread, and in fact, on the

17th, we found out that he used

that gun to trade for an extra

barrel for that weapon.

Q. And $20, correct?

A. Yes, sir, he did receive $20.

On redirect examination, the detective

was asked if he had any other evidence on

which he based his opinion. Defense

counsel objected, but the objection was

overruled. The trial court ruled that

counsel had “opened the door” regarding

the reasons the detective suspected the

defendant, and the ii.cormation relied on

in forming that opinion. Defendant now

contends that it was improper and

prejudicial for the detective to testify

as to his opinion or suspicion of guilt

of the defendant, or in the alternative

the testimony was hearsay. We do not

agree.

-A-64-

On rebuttal the state may offer any

competent evidence that directly replies

to or contradicts any material evidence

introduced by the accused. Moreover, as

we have noted:

Generally, where the defendant, by

putting on testimony opens the

door to proper rebuttal, he cannot

complain if rebuttal testimony,

offered by the State, also tends

to prove or reinforce the State's

case in chief * * ®,

State v. Kountz, 108qpriz. 459, 463, 501

P.2d 931, 935 (1972), (quoting State v,

Dowthard, 3 Ariz. App. 237, 239, 413 P.2d

296, 298 (1966)). We find no error.

B,. Death Penalty Issues

1. ARE THE TERMS “CRUEL, HEINOUS, OR

DEPRAVED" VOID FOR VAGUENESS?

Defendant contends that the terms

"especially heinous, cruel or depraved,"

-A-65-

are unconstitutionally vague. This court

has previously stated that the terms

"Cruel, heinous, or depraved,” are not

void for vagueness.

We have objectively defined the

relevant terms: a murder is

"heinous" if “hatefully or

shockingly evil;" "cruel" if

"disposed to inflict pain

especially in a wanton, insensate

Or vindictive manner: sadistic;”"

and “depraved” if “marked by

debasement, corruption, perversion

Or deterioration." State v,

Knapp, 114 Ariz. 531, 543, 562

P.2d 704, 716 (1977), cert.

denied, 435 U.S. 908, 98 S. Ct.

1458, 55 L.Ed.2d 500 (1978).

Cruelty focuses on the sensations

of the victim before death,

depravity focuses on the

murderer's state of mind, and

heinousness focuses on society's

view of the murder as compared to

other murders. To use this

aggravating circumstance, the

trial court must find that the

murder is especially heinous,

cruel, or depraved. State v,

Lujan, 124 Ariz. 365, 604 P.2d 629

(1979). We believe these

standards satisfy Godfrey and that

the especially cruel, heinous, and

depraved aggravating circumstance

has not been defined in an

unconstitutionally broad and vague

manner.

State v. Ortiz, 131 Ariz. 195, 206, 639

-A-66-

P.2d 1020, 1031 (1981), cert. denied,

Ortiz v. State, 456 U.S. 984, 102 S. Ct.

2259 (1982). We find no error.

2. WAS THE DEATH PENALTY PROPERLY

IMPOSED?

We have the duty to independently

review the existence of aggravating or

mitigating circumstances and to determine

whether the death penalty was improperly

imposed or should be reduced to life

imprisonment. State v. Roscoe, 145 Ariz.

212, 226, 700 P.2d 1312, 1326 (1984),

cert, denied, Roscoe v. Arizona, 471 U.S.

1094, 105 S. Ct. 2169 (1985); State vy,

Richmond, 114 Ariz. 186, 196, 560 P.2a

41, 51 (1976), cect. denied, Richmond v.

State, 433 U.S. 915, 975 S. Ct. 2988

(1977).

Defendant was found guilty of one count

of first degree murder. The trial court

by special verdict, A.R.S. § 13-703(D),

found as an aggravating circumstance that

-A-67-

the murder was committed in an especially

cruel, heinous, or depraved manner.

Finding no mitigating circumstances

sufficiently substantial to outweigh this

aggravating circumstance, the trial judge

sentenced the defendant to death.

Defendant contends that the trial court

improperly imposed the death penalty by

finding as an aggravating factor the

murder was especially cruel, heinous, or

depraved. A.R.S. § 13-703(F) (6)

establishes as an aggravating

Circumstance the fact that a defendant

commits a murder in an especially cruel,

heinous, or depraved manner. These terms

are considered disjunctive; the presence

of any one of the three factors is an

aggravating circumstance. State v.

Correll, 148 Ariz. 468, 480, 715 P.2d

721, 733 (1986).

~A~$8-

a. Cruelty

Cruelty is manifested by a murder

"disposed to inflict pain especially in a

wanton, insensate, or vindictive manner:

sadistic.” State v, Knapp, 114 Ariz.

531, 543, 562 P.2d 704, 716 (1977), cert,

denied, Knapp v. Arizona, 435 U.S. 908,

98 S. Ct. 1458 (1978). Cruelty involves

the pain and suffering of the victim,

including any mental distress suffered

Prior to death. State v. Castaneda, 150

Ariz. 382, 393, 724 P.2d 1, 12 (1986);

State v. Bracy, 145 Ariz. 520, 537, 703

P.2d 464, 481 (1985), cert. denied, Bracy

v. Arizona, 474 U.S. 1110, 106 S. Ct. 898

(1986). Thus, to suffer pain or

distress, the victim must be conscious at

the time the offense is committed. If

the evidence is inconclusive on

consciousness, the factor of cruelty

Cannot exist. State v. Gillies, 135

Ariz. 500, 513, 662 P.2d 1007, 1020

-A-69-

(1983), cert. denied, Gillies v. Arizona,

470 U.S. 1059, 105 S. Ct. 1775 (1985).

As to cruelty the trial court noted:

The court finds from the

evidence, and the reasonable

inferences to be drawn from the

evidence, that the crime was

especially cruel and that Jeneane

Hunt suffered pain and mental and

physical distress at the time of

the crime.

The Defendant told Anthony

Sarivola, a witness who testified

at the trial, that prior to

killing his stepdaughter he

“choked her and made her beg a

little bit.”

The Defendant told Donna

Sarivola, also a witness who

testified at the trial, that he

“choked her until every last

breath - and then shot her.” He

also told Donna Sarivola that he

“made her beg,” “beat her", and

"tortured her.”

The court finds the witnesses

were credible and that the

Defendant did, in fact, make such

statements.

The court finds independent

corroboration with respect to part

of the statements by the

Defendant.

The trial evidence, including

photographs, show that the

-A-70-

ligature had been tied loosely

around Jeneane Hunt's neck and was

on the body when it was found.

The child's mother testified the

ligature appeared similar to cloth

from a worn out towel.

Additional evidence of cruelty

exists in the trial record. The

defendant made a statement to the

child's mother of his “theory”

that the child “was kneeling on

the ground on her knees and she

must have known it was coming.

She was then shot on one side of

the head and then the other.”

There were additional statements

made by the Defendant to the

Sarivolas wherein he stated that

he made the child commit an act of

oral sex on him and that he raped

her.

The court finds such statements

were, in fact, made by the

Defendant, however, there is no

independent corroboration of the

statements relating to sexual

misconduct from any of the

findings of the medical examiner

or the physical evidence produced

at trial.

The court finds that the

possibility of sexual misconduct

exists but the evidence is

inconclusive and not beyond a

reasonable doubt.

The statements attributed to the

Defendant regarding acts of sexual

misconduct are not, therefore,

<A-71-

heing considered on the issue of

Cruelty. Such statements are,

however, being considered on the

issue of whether the crime was

committed with a heinous and

depraved state of mind. (Emphasis

in original)

Based on a review of the record, we

find the presence of cruelty is supported

by the evidence presented at trial. The

fear that apparently was felt by the

victim, the fact that she could

anticipate that she would be murdered

after being abused by her stepfather

shows that this killing was wanton and

sadistic, and supports a finding of

cruelty.

b. Heinous and Depraved

A murder is especially heinous if it is

"hatefully or shockingly evil.” Knapp,

114 Ariz. at 543, 562 P.2d at 716. A

murder is depraved if “marked by

debasement, corruption, perversion or

deterioration." Knapp, 114 Ariz. at 543,

562 P.2d at 716. The terms “heinous” and

-A-92-

“depraved” focus upon a defendant's state

of mind at the time of the offense, as

reflected by his words and acts. State

v. Summerlin, 138 Ariz. 426, 436, 675

P.2d 686, 696 (1983).

This court has set forth five factors

to consider in the determination of the

existence of heinous or depraved conduct:

l. relishing of the murder by the

defendant ;

2. the infliction of gratuitous

violence on the victim beyond that

necessary to kill;

3. mutilation of the victim's body;

4. the senselessness of the crime; and

5. helplessness of the victim.

State v. Gretzler, 135 Ariz. 42, 52-53

659 P.2d 1, 11-12, cert, denied, Gr@tzler

WY

t

ss

4

4

v. Arizona, 461 U.S. 971, 103

(1983).

This court has also stated that in the

rape and murder of a young girl:

-A-73-

Abduction, violent sexual

penetration and strangulation of a

helpless seven year old child are

circumstances that lead to only

one conclusion. The senseless

killing and the entire nature of

the attack are repugnant to

Civilized society. The elements

of a heinous crime and a depraved

State of mind are present.

State v. Roscoe, 145 Ariz. 212, 226, 700

P.2d 1312, 1326, cert. denied, Roscoe v.

Arizona, 471 U.S. 1094, 105 S. Ct. 2169

(1985).

Similarly, in the killing of an elderly

woman we stated:

The victim in this case was 78

years cld. She had limited mental

Capabilities and was easily

manipulated. She was helpless at

the hands of appellant. He could

have accomplished whatever

Criminal goals he desired without

killing her ... . We find that

by sexually assaulting Winifred

Duggan and senselessly killing

her, knowing full well that by

virtue of her advanced age and

limited mental capabilities she

was easy prey, appellant

demonstrated a shockingly evil and

corrupt state of mind.

State v, Zaragoza, 135 Ariz. 63, 69-70,

659 P.2d 22, 28-29, cert, denied,

<A-74G-

Zaragoza v. Arizona, 462 U.S. 1124, 103

- §&. Ct. 3097 (1983).

We believe the record supports the

findings of henious or depraved conduct

in the case before us. Defendant

senselessly killed a helpless victim, and

as reprehensible as this may be, also

violated the special parental

relationship.

As the trial court noted:

The court finds from the

evidence and the reasonable

inferences to be drawn from the

evidence that the Defendant acted

with an especially heinous and

depraved state of mind.

The statements made to Anthony

Sarivola and to Donna Sarivola

reveal the Defendants state of

mind.

The Defendant told Anthony

Sarivola that he “hated” Jeneane

and he referred to her as a

"little fucking bitch.”

The Defendant told Donna

Sarivola that, "I want to go piss

on her grave.”

The other statements made by the

Defendant to the Sarivolas

~~ -A-75-

relating to oral sex, rape,

torture, beating, making her beg,

choking her until every last

breath - whether they all occurred

Or not - show a state of mind that

is shockingly evil and marked by

debasement. These were statements

of a man who was bragging and

relishing the crime he committed.

> = 2.

In considering the senselessness

of the crime and the helplessness

of the victim the Court has

considered the special

relationship of sacred parental

trust which was violated. The

victim was the stepdaughter of the

Defendant. She was only eleven

years old. Found after three days

in the desert she weighed less

than ninety pounds. She was a

child under parental control and

capable of manipulation by the

Defendant. He took her-to an

isolated desert area where she

could not be heard, would have

less chance of escape, and would

be subject to his complete

control. She posed no threat to

the Defendant at any time. She

was helpless. She was easy prey.

He could have accomplished any of

his goals without killing her.

We find that the statutory aggravating

circumstances are present to uphold the

propriety of the death sentence.

-A-76-

3. VOIR DIRE EXAMINATION OF THE

TRIAL JUDGE

In the instant case, defendant argues

that the Arizona death penalty statute,

A.R.S. § 13-703, violates the

constitutional right to due process

because it fails to provide tor the voir

dire of the trial judge for possible bias

Or prejudice so that a defendant can

intelligently exercise his peremptory

challenge for cause.

Several general propositions of law run

contrary to the defendant's claim. At

the outset, a judge is presumed to be

fair. State v. Perkins, 141 Ariz. 278,

286, 686 P.2d 1248, 1256 (1984).

Secondly, as this court has stated in a

case where an accused claimed it was his

fundamental right to approve the judge:

While defendant in a criminal case

may be entitled, 4s a

constitutional right, to an

impartial (and independent) judge,

he is not entitled, as a matter of

ohn T7-

right, to any particular judge, or

a constitutional right to a change

of judge. (citations omitted).

State v. Reid, 114 Ariz. 16, 21, 559 P.2d

136, 141 (1976), cert, denied, Reid v.

Arizona, 431 U.S. 921, 97 S. Ct. 2191

(1977).

This court's definition of bias and

prejudice further enunciates the standard

applied to judicial disqualification:

Bias and prejudice means a hostile

feeling or spirit of ill-will, or

undue friendship or favoritism,

towards one of the litigants. The

fact that a judge may have an

Opinion as to the merits of the

cause or a strong feeling about

the type of litigation involved,

does not make the judge biased or

prejudiced.

State v. Meyers, 117 Ariz. 79, 86, 570

P.2d 1252, 1259 (1977), cert. denied,

Meyers v. Arizona, 435 U.S. 928, 98

S. Ct. 1498 (1978).

Defendant's claim is not the same as

the right to voir dire a jury. A judge

is not the unknown quantity a prospective

-~A-78-

juror may be. Furthermore, the right to

a fair and impartial tribunal is

adequately protected by Arizona Rules of

Criminal Procedure 10.1 and 10.2, which

allow for a change of judge.

Finally, the fact thac there is

mandatory appeal in death sentence cases

insures that this court will

independently review the findings to

determine if they are supported by the

record, and not based on bias and

prejudice. State v. Jeffers, 135 Ariz.

at 428, 661 P.2d at 1129. Defendant has

no constitutional right to conduct a voir

dire examination of the trial judge.

4. IS ARIZONA'S DEATH PENALTY

UNCONSTITUTIONAL BECAUSE IT

REQUIRES IMPOSITION OF THE DEATH

PENALTY WHEN ONE AGGRAVATING

CIRCUMSTANCE EXISTS AND THERE

ARE NO MITIGATING FACTORS?

In Arizona, under A.R.S. 8 13-703(E),

the trial court must impose 3 sertence of

oe

death if it finds the exis*e = f ne

= =

Statutory aggravating factor and does not

find the existence of any mitigating

factor sufficient to call for leniency.

Under § 13-703(E) if a case

involves one or more of seven

enumerated aggravating

Circumstances and no mitigating

circumstances sufficiently

substantial to call for leniency

then the trial court is required

to impose a sentence of death.

State v. Zaragoza, 135 Ariz. 63, 69, 659

P.2d 22, 28, cert, denied, Zaragoza v.

Arizona, 462 U.S. 1124, 103 S. Ct. 3097

(1983).

Defendant contends that the statute is

unconstitutional because if the court

finds aggravating circumstance and no

mitigating circumstance, then the court

must impose the death penalty. We do not

agree. As we have noted in State v,

Beaty, No. CR 85-0211 PR, slip op. at

31-32 (filed May 5, 1988), the statute

reduces the human element in the

imposition of the death penalty and in

-A-80-

doing so saves the constitutionality of

the statute. Under the statute a

defendant will stand the same chance of

receiving the death penalty from a judge

who does not philosophically believe in

the death penalty as from a judge who

does. Id. at 32. By applying the death

penalty only to those who come under the

Statute, the death penalty is reserved

only for crimes and those criminals the

legislature intended + De covered by the

statute. We find n —

2. IS ARIZONA'S ae NALT

STATUTE UNCONSTITUTIONAL BECAUSE

INADEQUATE STANDARDS ARE

UTILIZED BY TRIAL :

BALANCING AGGRAVATIN

CIRCUMSTANCES AGAINST

CIRCUMSTANCES?

Defendant contends that in Arizona, the

death penalty is imposed wantonly,

arbitrarily and freakishly because no

ascertainable standards are provided for

the sentencing authority to measure the

relative weights to be given the

-~A-81-

aggravating and mitigating factors which

have been found to exist. This

contention has been rejected numerous

a

times by this court. See generally,

State v, Gretzler 135 Ariz. 42, 53-54,

659 P.2d 1 l2-13, cert. denied, Gretzler

Y, Arizona, 464 bs DUE “eee Be SOs: BOC

denied, Greenawalt v. Arizona, 454 U.S.

882, 102 S. Ct. 364 (1981); State v,

Mata, 125 Ariz. 233, 241-42, 609 P.2d 48,

56-57, cert. denied, Mata v. Arizona, 449

U.S. 938, 101 S. Ct. 338 (1980). We find

no error.

6. IS ARIZONA'S DEATH PENALTY

STATUTE UNCONSTITUTIONAL BECAUSE

IT SHIFTS THE BURDEN OF PROOF

REGARDING MITIGATING

CIRCUMSTANCES TO THE DEFENDANT?

Defendant contends that in Arizona, the

death penalty is unconstitutional because

it impermissibly shifts the burden of

proof regarding mitigating circumstances

_—\-

to defendant. This issue has also been

rejected numerous times by this court.

State v. Correll], 148 Ariz. 468, 483, 715

P.2d 721, 736 (1986); State v. Smith, 125

Ariz. 412, 416, 610 P.2d 46-50 (1980).

We find no error.

ur IS ARIZONA'S DEATH PENALTY

STATUTE UNCONSTITUTIONAL BECAUSE

IT VIOLATES DEFENDANT'S SIXTH

AMENDMENT RIGHT TO A JURY TRIAL

ON THE ISSUE OF THE SENTENCE OF

DEATH?

Defendant asserts that the sixth

amendment of the United States

Constitution requires that a jury trial

be held on the question of the existence

Or non-existence of both aggravating and

mitigating factors.

It is further asserted that a jury

rial is constitutionally required on the

issue of the death sentence.

We have previously disposed of this

yuestion. §tate v. Correll, 148 Ariz. at

-A-83-

433-84, 715 P.2d at 736-37. We find no

error.

8. PROPORTIONALITY REVIEW

We must also examine the cases to

determine if the sentence imposed is

proportional to other death penalties

imposed in Arizona and other

jurisdictions. In doing so, we must keep

in mind that the death penalty is applied

only to certain cases of first degree

murder.

The legislature has made it

ciear that the death penalty is

not to be imposed in every case of

first degree murder. The death

penalty is reserved for those

cases where the manner in which

the crime was committed raises it

above the norm of first degree

murders, or the background cf the

defendant places the defendant

above the norm of first degree

murderers.

State v. Blazak, 131 Ariz. 5™®, 604, 643

P.2d 694, 700, cert, denied, Blazak v.

Arizona, 459 U.S. 882, 103 S. Ct. 184

(1982).

-A-84-

We alsc conduct a proportionality

review in order to determine whether the

imposition of the death penalty in this

case violates the eighth amendment. The

question is “whether the sentences of

death are excessive or disproportionate

to the penalty imposed in similar cases,

considering both the crime and

defendant." State v, LaGrand, 153 Ariz.

21, 37, 734 P.2d 563, 579, cert. denied,

LaGrand v. Arizona, U.S. ____ 1108

S. Ct. 207 (1987); State v. Bracy, 145

Ariz. 520, 538, 703 P.2d 464, 482 (1985),

cert. denied, Bracy v. Arizona, 474 U.S.

1110, 106 S. Ct. 898 (1986).

A similar case is State v. Castaneda,

150 Ariz. 382, 724 P.2d 1 (1986), where

defendant abducted and sexually assaulted

two twelve-year-old boys, later killing

one of the victims. This court found

that the murder was committed in an

especially cruel, heinous, and depraved

-A-85-

manner, and that the death penalty was

Properly imposed. Castaneda, at 395, 724

P.2d at 14. Likewise, in State v,

Roscoe, 145 Ariz. 212, 700 P.2d at 1312

(1984), cert, denied, Roscoe v. Arizona,

471 U.S. 1094, 105 S. Ct. 2169 (1985),

defendant abducted, sexually assaulted,

and strangled a helpless seven-year-old

girl. This court found that the murder

was committed in an especially cruel,

heinous, and depraved manner and that the

death penalty was properly imposed.

Roscoe, at 226-227, 700 P.2d at

1326-1327. See also, State v, Ortiz, 131

Ariz. 195, 208, 639 P.2d 1020, 1027,

cert. denied, Ortiz v. Arizona, 456 U.S.

984, 102 S. Ct. 2259 (1982) (death

penalty upheld where defendant inflicted

multiple stab wounds in the neck and

chest areas of the victim before pouring

gasoline on her and igniting it). Most

recently, the death penalty was affirmed

-A-86-

in State v, Beaty, No. Ck 85-0211 PR,

Slip op. at 19-22 (filed May 5, 1988),

involving the sexual assault and murder

of a thirteen-year-old girl. We have

also considered the following similar

cases in which we found the death penalty

properly imposed: State v. Clabourne,

142 Ariz. 335, 347-48, 690 P.2d 54, 66-67

(1984); State v, Gillies, 142 Ariz. 564,

570, 691 P.2d 655, 661 (1984), cert.

denied, Gillies v. Arizona, 470 U.S.

1059, 105 S. Ct. 1775 (1985); State v,

Summerlin, 138 Ariz. 426, 436, 675 P.2d

686, 696 (1983). In each of these cases

the defendant both sexually assaulted and

murdered the victim, and properly

received the death penalty based upon a

finding of one or more of the aggravating

circumstances.

Additionally, we have considered cases

where the death penalty was reduced to

life imprisonment by this court. See

-A-87-

State v. Johnson, 147 Ariz. 295, 710 P.2d

1050 (1985) (defendant did not create

grave risk of danger to others or commit

murder in a cruel, heinous or depraved

manner and no other aggravating

Circumstances were present); State v.

McDaniel, 136 Ariz. 188, 665 P.2d 70

(1983) (insutficient evidence that

defendant intended to kill victim who was

beaten and locked in trunk of car); State

v. Graham, 135 Ariz. 209, 660 P.2d 460

(1983) (substantial mental impairment due

to drug addiction, neurological problems,

and brain damage; vulnerability to

influence; lack of prior record of

violence); State v. Valencia, 132 Ariz.

248, 645 P.2d 239 (1982) (youth of

defendant); State v, Watson, 129 Ariz.

60, 628 P.2d 943 (1981) (change of

character and goals while in prison;

youth of defendant; murder occured [sic]

as a result of shootout begun by victim);

-A-88-

State v. Brookover, 124 Ariz. 38, 601

P.2d 1322 (1979) (substantial mental

impairment due to brain lesion). The

facts in the instant case are not similar

to these cases where we reduced the

penalty from death to life imprisonment.

Based on our review of other decisions

of this court, we believe that the

Circumstances of this murder indicate

that it is above the norm of the first

degree murders. See State v. Blazak, 131

Ariz. 598, 604, 643 P.2d 694, 700, cert.

denied, Blazak v, Arizona, 459 U.S. 882,

103 S. Ct. 184 (1982). We find that

imposition of the death penalty is

Proportional to the penalties imposed in

Similar cases in this state.

In addition to making an independent

determination of the propriety of the

death sentence in Arizona, the court also

conducts a proportionality review to

determine whether the sentence of death

-A-89-

is excessive or disportortionate [sic] to

the penalties imposed in similar cases in

Other jurisdictions. State v, Richmond,

114 Ariz. 186, 196, 560 P.2d 41, 51

(1976), cert, denied, Richmond v,

Arizona, 433 U.S. 915, 975 [sic] S. Ct.

2988 (1977).

We believe that the defendant's

sentence is similar to the sentences

received by other defendants for similar

crimes committed against minors. See

generally, State v. Morales, 32 Ohio

St.3d 252, 513 N.E.2d 267, 276-277 (1987)

cert. denied, Morales v. Qhio,

U.S.

—E amu 9

State v. Simants, 197 Neb. 549, 566, 250

N.W.2d 881, 891, cert, denied, Simants v,

Nebraska, 434 U.S. 878, 98 S. Ct. 231

(1977), State v, Loyd, 489 So.2d 898, 906

(La. 1986), stay granted, 491 So.2d 1348

(1984), cert, denied, Loyd v. Louisiana,

. VS. , 107 S. Ct. 1984 (1987);

103 S. Ct. 785 (1988);

-A-90-

Davis v, State, 477 N.E.2d 889, 900-901

(Ind.), cert, denied, Davis v, Indiana,

474 U.S. 1014, 106 S. Ct. 546 (1985);

Adams v. State, 412 So.2d 850, 855-857

(Fla.), cert, denied, Adams v. Florida,

459 U.S. 882, 103 S. Ct. 182 (1982). In

each of these cases the victims were

Children who were either sexually e

assaulted or cruelly beaten during the

perpetration of the crime, and in each

case the death penalty was imposed. We

find that the disposition in the instant

case is not disproportionate to sentences

in other jurisdictions in Capital cases

involving the death of children.

C,. Post-Trial Issues

As INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant contends that he received

ineffective assistance of counsel in the

failure of counsel to object to various

evidentiary rulings with resulting

-A-91-

waiver. Specifically, defendant contends

his counsel failed to move to strike the

character evidence including testimony of

the defendant's relationship with his

wife, evidence that other persons thought

the defendant had committed the Crime,

and the failure to object to evidence

submitted as to defendant's reputation in

Prison for being untruthful. Defendant

also challenges the allowance of evidence

over objection that he had a prior felony

conviction and he had been imprisoned.

As we have stated:

In deciding whether trial counsel

was ineffective and whether such

ineffectiveness warrants a new

trial, this court applies a

two-pronged test: (1) was

counsel's performance reasonable

under all the circumstances, i.e.

was it deficient? State v. Nash,

143 Ariz. 392, 694 P.2d 222 (1985

(applying to cases tried or

pending on appeal on or after

January 9, 1985), and (2) was

there a “reasonable probability

that but for counsel's

unprofessional errors, the result

of the proceeding would have been

different,” the prejudice

-A-92-

requirement. State v, jee, 142

Ariz. 210, 214, 689 P.zd 153, 157

(1984) (quoting Strickland v,

Washington, 466 U.S. 668, __, 104

S. Ct. 2052, 2068, 80 L.Ed.2d 674,

698, (1984) (applied retroactively

to cases after State v. Watson,

134 Ariz. 1, 653 P.2d 351 (1982)).

State v. Salazar, 146 Ariz. 540, 541, 707

P.2d 944, 945 (1985). As we noted in

State v. Beaty, No. CR 85-0211-PR, slip

Op. at 37 (filed May 5, 1988), in

deciding an ineffectiveness Claim, this

court need not approach the inquiry in a

specific order or address both prongs of

the inquiry in a specific order if the

defendant makes an insufficient showing

On one. Salazar, 146 Ariz. at 541, 707

P.2d at 945.

In particular, a court need not

determine whether counsel's

performance was deficient before

examinining the prejudice suffered

by the defendant as a result of

the alleged deficiencies. The

object of an ineffectiveness claim

is not to grade counsel's

performance. If it is easier to

dispose of an ineffectiveness

claim on the ground of lack of

sufficient prejudice, which we

-A-93-

expect will often be so, that

course should be followed. Courts

should strive to ensure that

ineffectiveness claims not become

so burdensome to defense counsel

that the entire criminal justice

system suffers as a result.

Strickland v. Washington, 466 U.S. at

698, 104 S. Ct. at 2069.

In the instant case we apply the

prejudice component first. Assuming that

counsel's performance was ineffective and

considering the totality of the evidence

before the jury, we do not believe

counsel's alleged errors in the allowance

of evidence as to defendant's character

have affected the result of the

proceeding. State v, Nirschel, 155 Ariz.

206, 209, 745 P.2d 953, 955 (1987). We

find no error.

D, HOLDING

We have reviewed the record for

fundamental error pursuant to A.R.S.

§ 13-4035, Anders v. California, 386 U.S.

738, 82S. Ct. 1396 (1967) and State v,.

-~A-94-

Leon, 104 Ariz. 297, 451 P.2d 878

(1969). We find none.

The conviction and judgment of death is

affirmed.

JAMES DUKE CAMERON, Justice

CONCURRING:

FRANK X. GORDON, JR., Chief Justice

STANLEY G. FELDMAN, Vice Chief Justice

WILLIAM A. HOLOHAN, Justice

JAMES MOELLER, Justice

-A-95-

SUPREME COURT

State of Arizona

201 West Wing State Capitol

1700 West Washington

Phoeni«, Arizona 85007-2866

Telephone: (602) 542-4536

Noel K. Dessaint Kathleen E. Kempley

Clerk of the Court Chief Deputy Clerk

April 12, 1989

RE: STATE OF ARIZONA vs. ORESTE C. FULMINANTE

Supreme Court No. CR-86-0053-AP

Maricopa County No. CR-142821

GREETINGS:

The following action was taken by the

Supreme Court of the State of Arizona on

April 11, 1989, in regard to the

above-referenced cause:

ORDERED: Motion for Reconsideration «

GRANTED.

Justice Corcoran recused himself and did

not participate in the determination of

this matter.

NOEL K. DESSAINT, Clerk

affutie

TO:

Robert K. Corbin, Esq., Attorney

General,

1275 W. Washington, Phoenix, AZ

85007 ATTN: Barbara A. Jarrett,

Esq.

Dean W. Trebesch, Esq. Maricopa County

Public Defender, 132 S. Central,

Suite 6, Phoenix, AZ 85004

ATTN: James H, Kemper, Esq., and

Stephen M.R. Rempe, Esq.

jd

afietie

(Filed July 11, 1989]

IN THE SUPREME COURT OF THE

STATE OF ARIZONA

In Banc

STATE OF ARIZONA, Supreme Court

No. CR-86-0053-AP

Appellee,

Maricopa County

Vv. No. CR-142821

ORESTE C. FULMINANTE, SUPPLEMENTAL

OPINION

Appellant.

ee ee oe

Appeal from the Superior Court

of Maricopa County

The Honorable Stephen A. Gerst, Judge

Reversed and Remanded

Robert K. Corbin, Attorney General Phoenix

By: William J. Schafer III

Barbara A. Jarrett

Assistant Attorneys General

Attorneys for Appellee

Stephen M.R. Rempe

Former Interim Maricopa County

Public Defender Phoenix

Dean W. Trebesch, Maricopa County

Public Defender

By: James H. Kemper and

Stephen R. Collins

Deputy Maricopa County Public Defenders

Attorneys for Appellant

Sola

MOELLER, Justice

Following issuance of our opinion in

this case, the defendant moved for

reconsideration. The motion contends:

l. Federal constitutional law

precludes this court from holding

Fulminante's coerced confession to

Anthony Sarivola, a government agent, to

be harmless error;

2. Even assuming a coerced confession

may properly be declared harmless, the

court's harmless error analysis was

incorrect;

3. We erred by concluding that the

second confession was not fruit of the

poisonous tree;

4. We erred by rejecting defendant's

ineffective assistance of counsel claim;

5. We erred by declaring Arizona's

death penalty statute constitutional;

6. We erred in our analysis of the

Statutory aggravating circumstance of

alate

"especially cruel, heinous and depraved";

7. We improperly conducted our

Proportionality review.

We find no merit to any of the issues

raised in the motion for reconsideration

except the first. In our original

Opinion, we concluded that the state had

not overcome Fulminante's prima facie

Showing of the involuntariness of his

Original confession to Sarivola, and,

therefore, the statement to Sarivola

Should have been suppressed. However, we

held the later, similar, and more

explicit confession to Donna Sarivola was

not fruit of the poisonous tree, and as

Such was properly admitted. Thus, we

concluded that any error in the admission

of the Sarivola confession was harmless

beyond a reasonable doubt. To support

that conclusion, we cited four federal

circuit cases and one Arizona case, all

holding that where a second confession

afiatta

was properly received, the improper

admission of an earlier confession was

harmless error.

In his motion for reconsideration,

however, the defendant correctly pointed

out that the cases we relied upon to

support our harmless error analysis were

not cases in which the first confession

was a coerced confession in violation of

defendant's fifth amendment rights.

Instead, these cases involved confessions

obtained in violation of defendant's

Miranda rights.

There is an unbroken line of authority

Supporting the rule that, although the

receipt of a confession obtained in

violation of Miranda may be harmless, the

harmless error doctrine does not apply to

coerced confessions. See, e.g., Mincey

v. Arizona, 437 U.S. 385, 398, 98 S. Ct.

2408, 2416, 57 L. Ed. 2d 290, 303-04

(1978); Chapman v. California, 386 U.S.

atin

18, 23 n.8, 87 S. Ct. 824, 828 n.8, 17 L.

Ed. 2d 705, 710 n.8 (1967); Jackson v,

Denne, 378 U.S. 368, 376, 84 S. Ct. 1774,

1780, 12 L. Ed. 2d 908, 915 (1964); Payne

v. Arkansas, 356 U.S. 560, 568, 78 S. Ct.

844, 850, 2 L. Ed. 2d 975, 981 (1958);

Miller v. Dugger, 838 F.2d 1530, 1535

n.10 (llth Cir.), cert, denied,

U.S. 108 S. Ct. 2832, 100 L. Ed.

—— ey |

2d 933 (1988); Johnstone v. Kelly, 808

F.2d 214, 218 (2d Cir. 1986), cert.

denied, 482 U.S. 928, 107 S. Ct. 3212, 96

L. Ed. 2d 699 (1987); United States v.

DeParias, 805 F.2d 1447, 1456 (llth Cir.

1986); Williams v. Maggio, 727 F.2d 1387,

1389 (Sth Cir. 1984); United States v.

Davis, 617 F.2d 677, 695-96 (D.C. Cir.

1979); see also W. LaFave & J. Israel, 3

Criminal Procedure 277 (1984);

Y. Kamisar, W. LaFave & J. Israel, Modern

Criminal Procedure 849; Project: Eighth

Annual Review of Criminal Procedure:

Qate

77-78, 67 Geo. L.J. 317, 402

(1978).

The state urges us to ignore these

cases and instead refers us to a few

other cases, none of which persuade us

that a coerced confession can be harmless

error. It is clear that federal

constitutional law, as interpreted,

pronounced, and applied by the United

States Supreme Court and other federal

courts compels us to conclude that the

receipt of the original coerced

confession may not be considered harmless

error.

1 The state did refer us to one case

that held that the harmless error

doctrine applied to coerced

confessions; however, that court

recognized the weight of authority

contrary to its position, but

contended that the contrary authority

did not necessarily establish a per se

rule. Harrison v, Qwen, 682 F.2d 138,

140 (7th Cir. 1982). Because the

holding in Qwen is not supported by

aGiutie

The dissent to this supplemental opinion

urges that coerced confessions may

sometimes be considered harmless

error. The dissent, however, concedes

that three decisions of the United States

Supreme Court (Mincey, Jackson, and Payne)

"have actually held that the admission of

coerced confessions cannot be considered

harmless error.” State v. Fulminante,

CR-86-0053-AP, supplemental opinion at __

(Ariz. Sup. Ct. 1989) (Cameron, J.

dissenting). The dissent, nevertheless,

argues that because those cases involve

facts more egregious than those presented

by today's case, the words of the Supreme

(footnote continued)

legitimate authority and does not

provide analysis of its own, we do not

consider it persuasive.

2 The dissent cites Milton v.

Wainwright, 407 U.S. 371, 92 S. Ct.

2174, 33 L. Ed. 2d (1972), to support

the proposition that the harmless

Lata

Court might not apply here. We cannot

agree.

The dissent's argument is based on the

view that the coerced confession here is

"at most, a confession obtained

Surreptitiously through an informant."

Id. at __. We believe that is a

mischaracterization of the coerced

confession involved in this case. As the

Original opinion in this case points out:

Defendant contends that because he

was an alleged child murderer, he

was in danger of physical harm at

the hands of other inmates.

Sarivola was aware that defendant

faced the possibility of

retribution from other inmates, and

that in return for the confession

with respect to the victim's

murder, Sarivola would protect

him. Moreover the defendant

maintains that Sarivola's promise

was “extremely coercive” because

error analysis applies to non-brutal,

non-egregious coerced confession cases.

However, the fact is that Milton was

decided on sixth amendment-Massiah

principles, to which the harmless error

rule applies. Thus, Milton is

inapposite.

Qafte

the “obvious” inference from the

promise was that his life would be

in jeopardy if he did not

confess. We agree.

ll Ariz. Adv. Rep. 7, 10 (June 16, 1988).

Thus, it is clear, and we have already

expressly held, that the confession was

obtained as a direct result of extreme

coercion and was tendered in the belief

that the defendant's life was in jeopardy

if he did not confess. This is a true

coerced confession in every sense of the

word. See Oregon v. Elstad, 470 U.S.

298, 312, 105 &. Ct. 1285, 1295, 84 L.

Ed. 2d 222, 234 (1985) (implicitly

recognizing coercion may exist where

police use any “deliberate means

calculated to break the suspect's will,”

even absent physical violence or

impairment). Therefore, we believe that

we are compelled to reject the argument

that its admission was mere harmless

error.

-C-9-

The law, as declared by the Supreme

Court, is that a harmless error analysis

is inapplicable to coerced confessions.

A confession extracted by a government

agent in return for a promise of

protection from violence at the hands of

other prisoners is undoubtedly a coerced

confession. Therefore, until and unless

the Supreme Court changes the law, we

must order defendant retried without the

use of the coerced confession.

Therefore, the defendant's conviction

and sentence are set aside, and this case

is remanded for a new trial without the

use of the original coerced confession.

Of course, this supplemental opinion does

not preclude the use of defendant's

second confession, since we adhere to our

Original view that it was not the fruit

of the poisonous tree. Other than the

Single point discussed in this

-C-10-

Supplemental opinion, all other aspects

of the original opinion remain intact.

JAMES MOELLER, Justice

CONCURRING:

FRANK X. GORDON, JR., Chief Justice

STANLEY G. FELDMAN, Vice Chief Justice

Justice William A. Holohan participated

in this matter but retired prior to the

filing of this supplemental opinion.

Justice Robert J. Corcoran did not

participate in the determination of this

matter.

-C-1ll-

CAMERON, J., dissenting.

I dissent. I believe the harmless

error doctrine can be applied in this

case. Admittedly, this view is a change

from a previously held position. I

believe, however, that changes in the law

now allow the harmless error doctrine to

be applied to coerced but reliable

confessions.

At the time of Chapman v. California,

386 U.S. 18, 87 S. Ct. 824 (1967), and

Harrington v. California, 395 U.S. 250,

87 S. Ct. 1726 (1969), the two leading

United States Supreme Court cases on the

exclusionary rule, it was generally

assumed the confessions given in

violation of Miranda were subject to the

harmless error doctrine. The same could

not be said for coerced confessions.

The introduction of involuntary

Or coerced confessions clearly

calls for automatic reversal

regardless of the amount of other

evidence indicating guilt

-C-12-

R The Supreme Court has

settled it as the law that

involuntary confessions call for

automatic reversal because the

right not to be forced to testify

against one’ s self is “basic to a

fair trial. The Court may have

been concerned about the

likelihood that an accused may

make an untrue confession in order

to escape mental or physical abuse

at the hands of his

interrogators. It is likely that

the Court feld that coerced

confessions, although extremely

unreliable, could have a

determinative effect on the minds

of the jurors, and thus felt it

the safer rule to require reversal

in all cases, rather than draw

fine lines concerning the quantum

of additional evidence necessary

to render the error “harmless.”

Cameron & Osborne, When Harmless ELror

Isn't Harmless, 1971 LAW & SOC. ORD. 24,

29-30. At this time, however, I question

the blanket assumption that the admission

of any coerced confession is per se

harmful and therefore reversible.

In the instant case, the majority has

Stated that the erroneous admission of

defendant's first confession to Sarivola,

which was held to be involuntary, cannot

-C-13-

be considered harmless error. The

majority states, "there is an unbroken

line of authority supporting the rule that

the harmless error doctrine does not

apply to coerced confessions." To support

this proposition, the majority cites

United States Supreme Court and other

federal cases.

The federal cases cited by the majority

are not sound authority for its ruling.

Miller v. Dugger, 838 F.2d 1530, 1535-37

(llth Cir.), cert. denied, se. ..,

108 S. Ct. 2832 (1988), involved a

confession obtained in violation of

Miranda, not a coerced confession. The

court in Miller held that the defendant's

confession was voluntary. Johnstone v.

Kelly, 808 F.2d 214, 218 (2d Cir. 1986),

cert, denied, 482 U.S. 928, 107 S. Ct.

3212 (1987), held that it was improper to

apply a harmless error analysis to a

denial of the right of self-representation.

-C-14-

In dicta, the court merely cited Payne v,

Arkansas, 356 U.S. 560, 78 S. Ct. 844

(1958), for the proposition that harmless

error does not apply to coerced

confessions. United States v. DeParias,

805 F.2d 1447, 1456 (llth Cir.), cert.

denied, Ramirez v. United States, 482

U.S. 916, 107 S. Ct. 3189 (1986), was not

a coerced confession case either. The

court found the confession to be

voluntary, but in dicta cited Mincey v.

Arizona as authority that harmless error

does not apply to coerced confessions.

Williams v. Maggio, 727 F.2d 1387,

1389-90 (5th Cir. 1984), involved only a

claim that the confession was

involuntary, which the court found to be

unsupported by any evidence. Here too,

the court in dicta cited Jackson v.

Denno, 378 U.S. 368, 84 S. Ct. 1774

(1964), and Mincey v. Arizona, 437 U.S.

385, 98 S. Ct. 2408 (1978), as authority

-C-15-

that harmless error does not apply to

coerced confessions. Finally, in United

States v. Davis, 617 F.2d 677, 695-96

(D.C. Cir. 1979), the court in dicta

referred to Mincey and Jackson as holding

that a coerced confession would require

reversal. The court found, however, that

the confession in question was

voluntarily given.

Thus, of the citations given as

Support, only three have actually held

that the admission of coerced confessions

cannot be considered harmless error.

Mincey, 437 U.S. at 398, 98 S. Ct. at

2416; Jackson, 378 U.S. at 376-77, 84

S. Ct. at 1780-81; Payne, 356 U.S. at

568, 78 S. Ct. at 850. Of these three

cases, only Mincey is a post-Chapman,

post-Miranda case. All of these cases

involved confessions obtained under

Circumstances that resulted in the

defendant being in a weakened, vulnerable

-C-16-

physical condition and the police using

coercive pressure through intensive

interrogation to elicit a confession.

In Payne, a pre-Chapman case, a

"mentally dull” youth was arrested for

murder without a warrant, denied a

hearing and not informed of his right to

remain silent or his right to counsel.

356 U.S. at 567, 78 S. Ct. at 849-50.

The defendant was held incommunicado for

three days during which family members

who requested to see him were turned away

and he was refused permission to make a

Phone call. Id. at 563, 78 S. Ct. at

848. The defendant was denied food for

over twenty-five hours and then only

given two sandwiches and not fed again

for another fifteen hours. Id. at 564,

78 S. Ct. at 848. The police told the

defendant that thirty to forty people

were waiting outside to get him. Id. A

police officer told the defendant that if

-C-17-

he would make a confession he would try

to keep the mob away from him. Id. The

Court found that because of the totality

of this course of police conduct and

particularly the Culminating threat of

mob violence, the confession had been

coerced and did not constitute an

"expression of free choice." ig. at $67,

78 S. Ct. at 850.

In Jackson, a pre-Miranda, pre-Chapman

case, the defendant was involved in a gun

battle with police after he robbed a

hotel clerk. 378 U.S. at 370-71, 84 S.

Ch. at 1777. He was shot twice, but

managed to get to a hospital. Id.

Jackson made incriminating statements to

a detective and then hospital personnel

gave him demerol, an analgesic sedative,

and scopolamine, a drug used to dry up

mouth secretion in preparation for

Surgery. Id. at 371, 84 S. Ct. at 1778.

Police continued to interrogate him even

-C-18-

though by this time Jackson had lost 500

cc. Of blood. Id. At one point Jackson

said, “Look, I can't go on;" however,

police continued to question him. I[d.

An hour after the questioning, doctors

operated on him. Id. at 371-72, 84S.

Ct. at 1778. The Court reversed the

denial of defendant's habeas corpus

petition and remanded the case to the

district court to allow the state a

reasonable time to afford him a hearing

on the voluntariness of his confession or

anew trial. Id. at 391, 84 S. Ct. at

1788. The Court recognized that the

facts could be interpreted to find that

the confession was coerced as a result of

the police tactics. Jd. at 39l, 84S.

Ct. 1788.

In Mincey, the defendant had unbearable

Pain in his leg, was in intensive care in

the hospital and was depressed to the

point of coma. Mincey, 437 U.S. at 398,

-C-19-

98 S. Ct. at 2416-17. The defendant was

lying on his back, encumbered by tubes,

needles, and breathing apparatus. Id. at

399, 98 S. Ct. at 2417. He clearly

expressed his wish not to be

interrogated. Id. When the detective

began the interrogation, the defendant

wrote: “This is all I can say without a

lawyer." Jd. The detective continued the

interrogation despite Mincey'’s pleas to

stop.

Moreover, he complained several

times that he was confused or

unable to think clearly, or that he

could answer more accurately the

next day. But despite Mincey's

entreaties to be let alone,

[Detective] Hust ceased the

interrogation only during intervals

when Mincey lost consciousness or

received medical treatment, and

after each such interruption

returned relentlessly to his task.

The statements at issue were thus

the result of virtually continuous

questioning of a seriously and

painfully wounded man on the edge

of consciousness.

Mincey, 437 U.S. at 400-01, 98 S. Ct. at

2418.

-C-20-

The Court said it was apparent that the

defendant's statements were not the

product of his free and rational choice.

“Due process of law requires that

Statements obtained as these were cannot

be used in any way against a defendant at

his trial." Mincey, 437 U.S. at 402, 98

S. Ct. at 2418.

In each of these three “coerced

confession” cases, the defendant was in a

physically distraught condition, which

the police took advantage of by

interrogating the defendant despite the

defendant's indications that he did not

want to make a statement or confess. In

each case, the Supreme Court recognized

that coercion is more than police

brutality, it can also result from

relentless interrogation inflicted on a

defendant in a physically-weakened

-C-21-

condition. Thus Payne, Jackson, and

Mincey stand for the proposition that in

these types of situations, confessions

obtained by these means amount to coerced

confessions that are not admissible and

are not subject to the harmless error

doctrine.

There have been, however, several cases

involving involuntary confessions,

sometimes characterized as "coerced," in

which courts have applied a harmless

error analysis. These confessions were

considered coerced only in a technical

sense and did not involve the egregious

police methods or brutality

Characteristic of the true “coercion”

cases. See, e.g., Milton v. Wainwright,

407 U.S. 371, 92 S. Ct. 2174 (1972)

(assuming, arguendo, that confession

obtained by pol®ce officer posing as an

accused person confined in defendant's

cell should have been excluded, record

-C-22-

clearly revealed that any error in its

admission was harmless beyond a

reasonable doubt).

Federal circuit courts have also’

considered this issue in several cases.

See United States v. Carter, 804 F.2d 487

(8th Cir. 1986) (assuming defendant's

statements were involuntary because

police detective misled defendant into

thinking that he was being questioned for

an assault, not a murder, court concluded

that their admission into evidence was

harmless error beyond a reasonable

doubt); Harrison v. Owen, 682 F.2d 138

(7th Cir. 1982) (admission of involuntary

confession induced by alleged police

representation that "consideration" would

be given to defendant held to be harmless

beyond a reasonable doubt); Meade v. Cox,

438 F.2d 323, 325 (4th Cir. 1971)

(despite a dispute in the record about

the voluntariness of the statement, court

-C-23-

finds its admission to be harmless

error); United States ex rel. Moore v.

Follette, 425 F.2d 925, 928 (2d Cir.

1970), cert, denied, 398 U.S. 966, 90

P S. Ct. 2180 (1970) ("While the case where

admission of an improperly obtained

confession can be considered harmless

error is exceedingly rare, this is one.").

State courts, including this court,

have held the erroneous admission of

involuntary confessions to be harmless

error. State v. Castaneda, 150 Ariz.

382, 387, 724 P.2d 1, 6 (1986) (admission

of defendant's statement regarding

whereabouts of victim's body induced by

police telling defendant they would bring

his sister to the site if he refused to

tell them where the body was, may have

amounted to coercion, but any error in

failing to suppress the statement was

harmless beyond a reasonable doubt);

People v. Gibson, 109 Ill. App. 3d 316,

-C-24-

440 N.E.2d 339 (1982) (defendant's

incriminating statements given to his

cellmate, a government informant who was

also a convicted felon, were improperly

admitted, but in view of other testimony,

it was only cumulative and the error was

harmless); Kelly v. State, 470 N.E.2d

1322 (Ind. 1984) (even if the defendant's

statements were involuntary, reversal not

required because any error in the

admission of the challenged statements

would be harmless); People v. Ferkins,

116 A.D.2d 760, 497 N.Y.S.2d 159 (1986)

(court finds state did not prove

admissions to be voluntary, however any

error in their admission was harmless

given the cumulative nature of the

statements); State v. Johnson, 35 Wash.

App. 380, 666 P.2d 950 (1983) (admission

of defendant's written statement, which

he alleged had been coerced, was harmless

in any event); State v. Dean, 363 S.E.2d

-C-25-

467 (W. Va. 1987) (confession induced by

Promise of receiving psychiatric

treatment considered involuntary, but its

admission into evidence was harmless

beyond a reasonable doubt).

I recognize the authority of Payne,

Jackson and Mincey; however, I do not

find the rule regarding involuntary

confessions to be as clear cut as the

majority makes it appear. See United

States v. Murphy, 763 F.2d 202, 208 (6th

Cir. 1985), cert. denied, Stauffer v.

United States, 474 U.S. 1063, 106 S. Ct.

812 (1986) ("The Supreme Court has not

Squarely addressed the issue of whether

admission of an involuntary confession

may be harmless since its landmark

holding in Chapman v, California, 386

U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705

(1967), that a federal constitutional

error can be held harmless.”).

aad

-C-26-

Two courts have addressed the issue of

an involuntary confession induced by some

type of promise and found the erroneous

admission of the statements to be

harmless error. In State v. Dean, an

arson investigator investigated a fire in

defendant's room at the YMCA. 363 S.E.2d

467, 468 (W. Va. 1987). By interviewing

the defendant, the investigator learned

that defendant was depressed and

contemplating suicide. [Id. He agreed to

help defendant get psychiatric treatment

and made inquiries on defendant's

behalf. The investigator accompanied

defendant to the Mental Health Center and

upon arrival, defendant admitted to him

that he had been involved in several

other fires. Jd. The trial court ruled

that the statements were inadmissible

because they had been induced by the

investigator's promises to assist

defendant in getting psychiatric

<C~27-

treatment. Id. at 469. Nonetheless, the

West Virginia Supreme Court said:

We are aware that é6rror in the

admission of a coerced confession

is not ordinarily subject to

harmless error analysis. See Rose

y¥.Ciasck., —... U.S. » awe 6. Ct.

3101, 92 L.Ed.2d 460 (1986);

Chapman v. California, 386 U.S.

18, 87 S.Ct. 824, 17 L.Ed.2d 705

(1967). A rare exception to this

rule has been recognized, however,

where the involuntary confession

is merely duplicative of other

testimony or admissible statements

of the accused. Harrison v. Owen,

682 F.2d 138 (7th Cir. 1982);

Meade v. Cox, 438 F.2d 323 (4th

Cir.), cert, denied, 404 U.S. 910,

92 S.Ct. 234, 30 L.Ed.2d 182

(1971); United States ex rel.

Moore v. Follette, 425 F.2d 925

(2d Cir.), cert. denied, 398 U.S.

966, 90 S.Ct. 2180, 26 L.Ed.2d 550

(1970); State v. Johnson, 35

Wash.App. 380, 666 P.2d 950

(1983). See also Milton v.

Wainwright, 407 U.S. 371, 92 S.Ct.

2174, 33 L.Ed.2d 1 (1972); United

States v. Murphy, 763 F.2d 202

(6th Cir.1985), cert, denied, 474

U.S. 1063, 106 S.Ct. 812, 88

L.Ed.2d 786 (1986); State v,

Castaneda, 150 Ariz. 382, 724 P.2d

1 (1986). The standard for review

in such cases is the same as in

other cases of error of

constitutional magnitude:

"'Failure to observe a

constitutional right constitutes

reversible error unless it can be

-C-28-

Shown that the error was harmless

beyond a reasonable doubt.' Syl.

pt. 5, State ex re]. Grob v.

Blair, 158 W.Va. 647, 214 S.E.2d

330 (1975)." Syllabus point l,

Maxey v. Bordenkircher ,

W. Va. , 330 S.E.2d 859 (1985).

State v. Dean, 363 S.E.2d at 471

(footnote omitted).

In Harrison v. Qwen, the defendant

called his friend, told him he was

involved in a killing and asked for

advice. 682 F.2d 138, 139 (7th Cir.

1982). His friend negotiated with police

and told defendant that the police

promised “considerations and leniencies”

if defendant would come forward and

Surrender. Id. Upon signing his

confession, the police told him they

couldn't come right out with a deal, but

consideration would be given to him

later. Jd. The court found that the

admission of defendant's incriminating

Statement was harmless beyond a

reasonable doubt in light of the evidence

-C-29-

as a whole and testimony by defendant's

friend and the police corroborating the

incriminating statements. Id. at 142.

I find the analysis employed by the

Eighth Circuit to be persuasive. The

court recognized that a harmless error

analysis should not apply only to certain

types of coerced confessions. United

States v. Carter, 804 F.2d 487 (8th Cir.

1986). In Carter, an FBI agent misled

the defendant about the subject of the

interrogation. He told the defendant

that he was investigating an assault,

although he was actually investigating a

murder. 804 F.2d at 489. The defendant

gave a false alibi that was later used to

impeach his credibility. Id. When he

found out the victim had died, he invoked

his right to remain silent. Id. The

court held that even assuming the

statement was involuntary, the error in

-C-30-

admitting it was harmless. Id. The

court noted:

Flittie v. Solem, 775 F.2d 933,

944 & N. 18 (8th Cir.1985) (en

Danc), cert. denied, U.S.

anume B00 BeGee Baaeese OF Lee. ae

333 (1986), is not to the

contrary. In Flittie we said:

"If che statements were coerced,

their admission could not have

been harmless error.” JIbid. Only

if the word “coerced” is read to

include deception, as opposed to

physical or mental compulsion,

would the harmless-error analysis

be inappropriate in the present

case. Such an extended reading of

Flittie is not tenable, and would

be contrary to Milton v.

Wainwright, supra.

Carter, 804 F.2d at 489 n

This meaning of “coerced” is consistent

with the United States Supreme Court's

interpretation in footnote one of

Colorado v. Connelly, 479 U.S. 157, 107

S. Ct. 515, 520 (1986), which discusses

various confession cases where police

conduct was coercive. The Court found

that all the cases it nad considered in

the last fifty years involved defendants

-C-31l-

who were in weakened physical conditions

and/or subjected to intensive and

relentless police interrogation or

coercive tactics. The Court also noted

in footnote two that "“[e])ven where there

is causal connection between police

misconduct and a defendant's confession,

it does not automatically follow that

there has been a violation of the Due

Process Claus." Connelly, 479 U. S. at

164 n.2, 107 S. Ct. at 520 n.2; see

Oregon v. Elstad, 470 U.S. 298, 305, 105

S. Ct. 1285, 1290 (1985) (fifth amendment

not concerned “with moral and

psychological pressures to confess

emanating from sources other than

official coercion."); see also United

States v. Murphy, 763 F.2d 202, 210 (6th

Cir. 1985) (court applies harmless error

analysis to confession where there was an

element of coercion, but no police

misconduct).

-C-32-

A case similar to the present case is

People v. Gibson, 109 Ill. App. 3d 316,

440 N.E.2d 339 (1982). A government

informant, also a convicted felon, was

deliberately placed in defendant's jail

and was asked by police if he would "pay

attention" to anything the defendant

might say regarding the murder. Id. at

322-23, 440 N.E.2d at 343-44. With his

identity unknown to the defendant, the

informant gained defendant's confidence

and elicited incriminating statements

from him. Id. at 323, 440 N.E.2d at

343. The court found the admission of

the informant's testimony regarding

defendant's statements to be clear error,

but in view of the other testimony in the

case, it was only cumulative, and the

evidence, taken together, overwhelmingly

established the defendant's guilt without

the informant's testimony. Accordingly,

the court held that the erroneous

-C-33-

admission of the testimony was harmless

beyond a ressonebie doubt. Jd. at 324,

440 N.E.2d at 344.

A review of the case law mandates that

a court should look to the circumstances

Surrounding the involuntary confession.

If the confession was a result of the

type of coercion found in Payne, Jackson

and Mincey, then admission of the

incriminating statement will constitute

reversible error. If, however, the

involuntary confession is only “coerced”

in a technical sense, and is merely

duplicative of other testimony or

admissible statements of the defendant,

then a harmless error analysis is

3

appropriate. Additionally, if the

3 For cases holding that harmless

error analysis is appropriate in

involuntary confession cases if the

statement is cumulative of other

testimony or evidence against the

defendant see Harrison v. Qwen, 682 F.2d

138, 141 (7th Cir. 1982); Meade v. Cox,

438 F.2d 323, 325 (4th Cir. 1971);

-C-34-

record reveals overwhelming evidence of

Gefendant's guilt, any error in admitting

such statements may be considered

harmless. *

(footnote continued)

People v. Gibson, 109 Ill. App. 3d 316,

324, 440 N.E.2d 339, 344 (1982); Kelley

v. State, 470 N.E.2d 1322, 1325 (Ind.

1984); People v,. Ferkins, 116 A.D.2d

760, 763, 497 N.Y.S.2d 159, 162 (N.Y.

App. Div. 1986); State v. Johnson, 35

Wash. App. 380, 386, 666 P.2d 950, 953

(1983); State v. Dean, 363 S.E.2d 467,

471 (W. Va. 1987).

4 For cases holding that harmless

error analysis is appropriate in light

of overwhelming evidence of the

defendant's guilt see Milton v.

Wainwright, 407 U.S. 371, 372-73, 92 S.

Ct. 2174, 2175-76 (1972) (three other

confessions); United States v. Carter,

804 F.2d 487, 490 (8th Cir. 1986) (six

witnesses against defendant); United

States v. Murphy, 763 F.2d 202, 203, 210

(6th Cir. 1985) (massive circumstantial

and corroborating evidence); United

States ex rel. Moore v. Follette, 425

F.2d 925, 928 (2d Cir. 1970) (other

confession, corroborating testimony from

other witnesses covering every element

of the crime, finding of stolen property

in defendant's possession); State v.

Castaneda, 150 Ariz. 382, 387, 724 P.2d

l, 6 (1986) (positive identification by

witness and physical evidence connecting

defendant to crime).

-C-35-

The confession in the present case,

although considered involuntary, is not

the type of “coerced” confession found in

Payne, Jackson and Mincey. The record

does not reflect that defendant was in

any type of weakened condition when he

confessed to Sarivola. Although Sarivola

was a paid FBI informant, he was not a

police officer. Police did not

intentionally place Sarivola in

defendant's cell. Rather, Sarivola had

heard rumors that defendant was suspected

of killing a child and told his FBI

contact about it. Only then did the FBI

agent tell Sarivola to find out about the

rumor. The evidence does not indicate

that the FBI agent ever told Sarivola to

offer protection to defendant or threaten

him in any way if defendant refused to

divulge any information. The Arizona

authorities were not involved at this

time.

-C-36-

Sarivola did not subject defendant to

any coercive, intensive interrogation.

While defendant might not have confided

in Sarivola had he known the information

would be passed on, he did voluntarily

tell Sarivola, in conversational tones,

the circumstances surrounding the murder

of his stepdaughter. This “involuntary”

confession to Sarivola is not the type of

coerced confession found in the cases of

egregious police conduct the Supreme

Court has addressed when it refused to

apply the harmless error doctrine. It

was at most, a confession obtained

Surreptitiously through an informant.

I believe defendant's “coerced”

confession is merely cumulative to other

admissible statements made by the

defendant. Defendant's second confession

to Donna Sarivola contained much of the

same information as his confession to

Anthony Sarivola. He told both of them

-C-37-

that he killed his stepdaughter, choked

her, an@ made her beg for her life. He

also expressed his hatred for his

stepdaughter to each of them by telling

Anthony Sarivola ne “hated” her and

referred to the victim as a “little

fucking bitch” and by telling Donna

Sarivola he wanted to “piss on her [the

victim's] grave.”

This is also a case where the record

reflects overwhelming evidence of

defendant's guilt. Defendant made

inconsistent statements concerning the

victim's disappearance. He said that he

had a good relationship with the victim

and that she had been instructed in the

use of firearms. Defendant's wife

contradicted these statements by

testifying that he had a poor

relationship with the victim and that the

defendant had never instructed the victim

in the use of firearms. The evidence

-C-38-

indicated that the day before defendant

reported the victim's disappearance, he

went to a Mesa gun shop to trade his

rifle for an extra barrel for his .357

revolver. The evidence showed that the

victim had been shot twice with a .35

revolver. Other physical evidence

oF

as the wounds, ligature aroun

+

xX

victim's neck, motorcycle tr

w

x

location of the crime scene e

defendant to the murder.

The evidence, taken togethe

re

established defendant's guilt beyond a

reasonable doubt without the use of

defendant's confession to Sari la

Thus, in light of all these facts and the

absence of coercive police tactics in

this case, I believe that the err neous

admission cf defendant's involuntary

confession to Sarivola was harmless

beyond a reasonable doubt. The law does

not require nor do the circumstances

-C-39-

justify reversing his conviction on this

ground.

Apart from the facts in this case, I

find no reason in logic or law to hold

that a “coerced” confession can never be

harmless. It cannot be said that there

will never be a case in which facts are

SO overwhelming against a defendant that

the error is not harmless beyond a

reasonable doubt.

Further, I do not believe we can ignore

the cost of applying the exclusionary

rule in this case. The “coercion” in

this case was not great. Comparing the

costs and benefits, the costs are too

great and the benefits negligible. Were

I deciding this case on independent state

grounds, I believe the cost of excluding

the "coerced" confession is too great a

price to pay for the meager benefit

-C-40-

obtained. See Cameron & Lustiger, The

Exclusionary Rule; A Cost-Benefit

Analysis, 101 F.R.D. 109 (1984).

JAMES DUKE CAMERON, Justice

APPENDIX D

SUPREME COURT

State of Arizona

201 West Wing State Capitol

1700 West Washington

Phoenix, Arizona 85007-2866

Telephone: (602) 542-4536

Noel K. Dessaint Kathleen E. Kempley

Clerk of the Court Chief Deputy Clerk

september 22, 1989

RE: STATE OF ARIZONA vs. ORESTE C.

FULMINANTE

Supreme Court No. CR-86-0053-AP

Maricopa County No. CR-142821

GREETINGS:

The following action was taken by the

Supreme Court of the State of Arizona on

September 19, 1989, in regard to the

above-referenced cause:

ORDERED: Motion for Reconsideration =

DENIED.

Justice Cameron voted to grant. Justice

Corcoran did not participate in the

determination of this matter.

=

Order Setting Aside Conviction and

Sentence and Remanding for New Trial

(Mandate) enclosed.

NOEL K. DESSAINT, Clerk

TO:

Robert K. Corbin, Esq., Attorney

General, 1275 w. Washington,

Phoenix, AZ 85007 Attn: Jessica

Gifford Funkhouser, Esq., and

Barbara A. Jarrett, Esq.

Dean W. Trebesch, Esq., Maricopa

County Public Defender, 132 Ss.

Central, Suite 6 Phoenix, AZ

85004 Attn: James H. Kemper,

Esq., and Stephen R. Collins, Esq.

Judith Allen, Clerk, Maricopa County

Superior Court, 201 W. Jefferson,

Phoenix, AZ 85003

em

sate

IN THE SUPERIOR COURT OF THE

STATE OF ARIZONA IN AND FOR

THE COUNTY OF MARICOPA

THE STATE OF ARIZONA,

Plaintiff,

CR-142821]

vs.

ORESTE C. FULMINANTE,

)

)

)

)

)

)

)

)

Defendant. )

)

Phoenix, Arizona

December 1l, 1985

1:55 o'clock p.m.

BEFORE: THE HONORABLE STEPHEN A.

GERST, JUDGE

Reporter's Transcript of Proceedings

Volume VI - Trial

Deborah M. Croci

Official Court Reporter

Arizona Attorney General

Appeals Division

(COPY)

Q. BY MR. SCULL: Tell us what he

told you?

A. Well, quite a few nights after

dinner, we used to go walking on the -- ~

there's a track because it used to be the

only big training grounds, so they have a

big running track.

And we used to go walking around,

and he was getting a -- starting to get

some tough treatment and whatnot from the

guys and I told him, you know, “You have

to tell me about it,” you know. I mean,

in other words, "For me to give you any

help.” And he told me that he did in

fact kill her.

Q. What did he tell you, as closely

as possible the words that he used as he

described this to you?

A. He told me that -- he said that

he “clipped her."

Q. “Clipped her"?

A. “Clipped her.”

efiala

Q. What does the term "clipped" mean?

A. “Clip” means to kill somebody.

Q. All right. Did he tell you

anything else about it?

A. He said that he had took her out

to the desert and he shot her twice in

the head.

Q. Did he tell you why he did it?

A. He said that she was a little

bitch and she was always in his way with

his wife. She started a lot of trouble.

Q. Did he describe the Surroundings

in which he did this to her?

A. He said it was the desert and

there was some rocks, you know, and sage

brush and stuff like that and all I could

know what he was saying is pictures from

what I have seen on TV, because before

that, I had never seen a desert except

for around Las Vegas.

Q. All right. Did he say how he

took her to the desert?

, . -E-3-

A. He said on a motorcycle.

| Q. Did he say where his wife was at

that time?

A. He said she was not at home. He

was supposedly watching her or something

like that.

Q. All right. Do you know where the

wife was at that time?

A. No, I do not.

Q. Did he tell you that he did

anything else to the child?

A. Well, he was talking something

about her giving him head.

Q. What do you mean by that; you

mean, oral sex?

A. Oral sex.

. Q. He made her give him oral sex?

, A. Something like that I recall. I

do not exactly, you know, remember his

exact words. Or --

Q. Do you have any recollection as

to how he performed this or did this?

-—-4-

A. No, I do not.

Q. Did he say that he did anything

else to the child besides shooting her

and the sexual assault?

A. He said that he choked her and

made her beg a little bit.

Q. Did he say how he choked her?

A. No he didn't.

Q. Did he ever describe a weapon to

A. Yes. A .357 magnum Dan Wesson

revolver.

Q. Do you remember talking

specifically about that kind of revolver?

A. Yes, I do.

Q. Did he tell you anything unique

about that kind of revolver?

A. That he had bought another barrel

for the weapon.

Q. And did he tell you that he used

that in any way or not?

-E-5-

|

A. He said he did not use the other

barrel.

Q. Did he ever tell you what

happened to the weapon?

A. He -- as far as I can remember,

is that he left the weapon out in the

desert somewhere.

Q. Now, what kind of reputation, if

you know, did Mr. Fulminante have around

the prison for being truthful and honest?

A. Well, most people believed him

not to be truthful.

Q. Now, what makes you think he was

telling you the truth at this time?

A. Because one of the few times he

became serious and he was and not trying

to put up a front about it.

Q. Did he ever tell you there was a

pile of rocks by where he killed her?

A. Yes, he said something about a

pile of boulders.

-£-6-

oO ew BS

ae

Q. What kind of relationship did he

describe to you that he had with this

girl?

A. Very lousy relationship. He

thought that she was always in the way

between him and his wife, and she was a

little bitch.

Q. And how did he refer to her in

these conversations?

A. Usually a little fucking bitch.

Those were usually his words towards her.

Q. Did Mr. Fulminante express any

remorse to you about this killing?

A. No, he did not sir.

Q. Did he ever on any subsequent

occasion?

A. No, he did not.

Q. Did you talk about this on any

subsequent occasions?

A. Yes, we have touched on it a few

times before I actually departed from

prison.

-E-7-

Q. Did he ever tell you where the

gun was hidden?

A. Somewhere by that pile of rocks.

Q. Did he ever make any statements

about the atithorities being unable to

find it?

A. Yes. He always said that they

were too fucking stupid to get him, that

they never knew where to look, and -- but

he did say that they were constantly

applying pressure and he was very, very

worried it would be waiting for him when

he got out of Raybrook.

Q. BY MR. KOOPMAN: Okay.

Mr. Sarivola, you have a group of men who

are doing time in prison; is that correct?

A. That's correct, sir.

Q. Some of them have committed

murder, burglary, robbery; correct?

Extortion?

A. That's correct.

-£-§-

Q. If a prisoner, if a fellow

prisoner is known to have sexually

assaulted and murdered a little child,

he considered accepted by the general

population or is he ostracized and

possibly in danger from the general

population?

A. The latter part, ostracized and

possibly in danger.

is