State v. (Frank Winfield) Anderson, 210 Ariz. 327, 111P.3d 639 ( 2005)
(Death penalty upheld) Jury Trial/Indep. Review

PROCEDURAL POSTURE: Anderson was convicted in 1998 in Superior Court (Mohave) of armed robbery, conspiracy to commit first-degree murder, and three counts of first-degree murder.  His convictions were overturned on direct appeal due to jury selection error.  See State v. Anderson , 197 Ariz. 314, 4 P.3d 369 (2000).  On remand, he was retried, convicted on the same counts, and sentenced by a jury to three death sentences.  This is Anderson’s direct appeal.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (PECUNIARY VALUE) – UPHELD

The evidence showed that in 1996, Anderson, his fourteen-year-old girlfriend, and 19-year-old Bobby Poyson, executed a common plan to kill three residents of the Kagen home located in Golden Valley, in order to steal a truck belonging to one of the victims.  Those killed included Mrs. Kagen, her 15-year-old son, Robert, and the truck’s owner, Roland Wear.

The court found that the fact that two of the three victims were left with jewelry on their person after they were killed, and that the objective was only to steal Roland Wear’s truck, did not negate finding (F)(5) as to all of the victims.  The evidence showed that Mrs. Kagen and her son were killed so that Anderson and his accomplices could obtain the truck belonging to Wear and leave no witnesses.  “Unlike robbery, the pecuniary gain aggravator does not require that property be taken from each victim, but rather only that a murder be prompted by the desire for pecuniary gain.”

Moreover, it was not duplicitous to find the pecuniary gain aggravator when the defendant had been convicted of felony-murder based upon the felony of armed robbery.  While armed robbery requires proof of a “taking of property from the victim,” (F)(5) requires proof that the defendant’s “motivation [for the murder] was the expectation of pecuniary gain.”

(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED) – DISCARDED - due to the jury’s general verdict on this factor, where the AZ Supreme Court found insufficient evidence on independent review of the heinousness/depravity sub-factor and could not determine from the general verdict if the jury had been unanimous on either heinousness/depravity or cruelty, or both)

Facts: 14-year-old Kimberly Lane lured Robert into a trailer on the rear of the property and while the two kissed, Anderson grabbed Robert and sliced his throat with a knife.  The two struggled, and Kimberly exited the trailer, allowing Poyson to enter.  Anderson eventually placed the tip of the knife in Robert’s ear and held him while Poyson pounded the knife until the tip emerged through Robert’s nose.  Poyson then beat Robert’s head with a rock until he died.  The three then returned to the Kagen trailer home, where Leta and Roland Wear were already asleep.  At approximately midnight, Poyson took a rifle from the home and accompanied Anderson into the bedroom where the two intended victims lay sleeping.  Poyson shot Kagen, killing her almost instantly.  He fired again, hitting Wear in the jaw.  When Wear jumped from the bed, Poyson hit him over the head with the butt of the rifle and Anderson hit him with a lantern, which shattered.  Wear managed to flee outside, but was overtaken and beaten to death by Poyson with a cinder block provided by Anderson.

Vicarious Liability:  Not Applicable.  Anderson did not actually kill the victims.  But because he was present and “actively participated in the [murders] for which the aggravator was found, by slitting the first victim’s throat and holding him down while his co-conspirator administered the fatal knife wound, and hitting the third victim and handing his accomplice the weapon by which the fatal blows were inflicted, the (F)(6) finding was not based upon the prohibited theory of “vicarious liability.”

Heinous or Depraved – Not Found.

Mutilation - Not Found.

Relishing - Not Found.

Gratuitous Violence – Not Found. The court conceded that in the cases of Robert and Wear, gratuitous violence was a “closer question.”  Both Robert and Wear were subjected to “prolonged and varied attacks before they succumbed. [Robert] had his throat slashed, a knife pounded into his ear, and his head beaten with a rock.  Wear was shot through the jaw, hit over the head with a rifle butt and a lantern, and then killed by blows to the head from a cinder block.  While these multiple attacks were reprehensible, they d[id] not meet the (F)(6) test of gratuitous violence.  Each attack came in an attempt – albeit clumsy – to kill the victim, not to engage in violence beyond that necessary to kill.”

Cruelty – FOUND (but discarded due to the jury’s general verdict and the State’s failure to argue that the Court’s independent finding on cruelty could support upholding the (F)(6) factor)

The evidence showed that Robert and Wear “experienced pain and suffering during the prolonged attacks against them.”

(F)(8) (MULTIPLE HOMICIDES) – UPHELD

The three homicides met the (F)(8) requirement that the killings be temporally, spatially and motivationally related, where the murders occurred within five hours of one another, they were all committed on the same residential property (even though in different locations on the property), and the motivation for each killing was the same: a desire to steal the third victim’s truck and to leave no witnesses behind to report the crime.

MITIGATING CIRCUMSTANCES (NOT SUFFICIENTLY SUBSTANTIAL):

(G)(2) (DURESS) – NOT FOUND

The court found no “credible” evidence that Anderson feared 19-year-old Bobby Poyson and was coerced by him into committing the murders.

Given Anderson’s “substantial role in each of the murders,” the court rejected the characterization of his participation as “minor.”

Anderson’s childhood troubles did not explain his decision, “decades later at age forty-eight, to kill three innocent people to steal a pickup.”

While there was evidence that Anderson’s I.Q. was below average and that he did not have a leader-type personality, this was accorded very little weight, since Anderson was “not mentally retarded, unable to make his own decisions, or lacking in the capacity to judge right from wrong.”

Kimberly Lane received an eight-year-sentence for her participation in the crimes, pursuant to a plea agreement.  This disparity was not unexplained, however, since her involvement in the murders was “far less substantial than Anderson’s and she was but fourteen years old at the time of the murders.”

Anderson’s cooperation with the police was “limited” and could not be viewed as “substantial mitigation.”  He was interviewed three times by the police; at first he denied any involvement and by the third interview, he confessed his participation in the crimes.

There was evidence that Anderson had been a “model inmate.”  Laudable, but insufficient to call for leniency.

There was evidence that Anderson had made efforts to assist fellow inmates through his Christian ministry.  Laudable, but insufficient to call for leniency.

JUDGMENT: Convictions Affirmed; Death Sentences Affirmed; Blakely issue regarding aggravated sentences on non-capital felonies left for a supplemental opinion.

State v. (Homer Ray) Roseberry, 210 Ariz. 360, 111 P.3d 402 ( 2005)
(Death penalty upheld) Jury Trial/Indep. Review

PROCEDURAL POSTURE:  Roseberry was convicted (either in late 2002 or early 2003) in Superior Court (Yavapai) of transportation of marijuana for sale, conspiracy to transport marijuana for sale, and first-degree murder, and the jury sentenced him to death in June, 2003, after a six-month delay between the aggravation and penalty phases.  This is his direct appeal.

The court found that pecuniary motive in this case was “well supported.”  The evidence showed that in 1998, Roseberry began transporting marijuana for members of a drug-smuggling ring known as the Pembertons because Roseberry and his wife needed the money.  In early October of 2000, Roseberry agreed to transport more than one thousand pounds of marijuana in his motorhome.  The Pembertons told him that to guarantee the safety of the shipment, a man named Fred Fottler would accompany him on the trip.  The marijuana was loaded into the RV in Phoenix, and the two men set off.  Roseberry, however, had conspired with a friend, Charles Dvoracek, to aid him in stealing the shipment for themselves, and Dvoracek was poised at a Wickenburg restaurant stop, ready to steal the RV when Roseberry and Fottler stopped to eat.  But instead of stopping at the restaurant, Roseberry pulled over onto the shoulder of the road and shot Fottler twice in the head.  Roseberry exited the motorhome and told Dvoracek that he had decided to kill Fottler when he unexpectedly dozed off on the sofa.  Upon hearing “gurgling sounds,” Roseberry returned to the RV and shot Fottler a third time.  The two men then disposed of the body in a gully off of the roadway, discarded the weapon, and transferred some of the marijuana into Dvoracek’s vehicle.  Roseberry returned to his home in Nevada with the stash and confessed to his wife what he had done.  She immediately arranged for two drug dealers from Indiana to fly in and purchase some of the marijuana.  Roseberry and Dvoracek split all of the proceeds.

Aside from this evidence, the Supreme Court noted that that additional pecuniary gain motive could be gleaned from the fact that “Roseberry and his co-conspirators wasted no time in setting up a deal to sell some of the marijuana.  Indeed, they called [the brother of Roseberry’s wife, who connected Roseberry with the Indiana drug-buyers], the very day Fottler was killed.  Moreover, there was no other discernable reason for Roseberry to kill Fottler other than to secure the marijuana.  There was no evidence that the men had even met prior to the drug run, nor was there evidence that Roseberry harbored any animus toward Fottler.

MITIGATING CIRCUMSTANCES:  Not Discussed.

JUDGMENT:  Convictions and Death Sentence Affirmed.

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