v. (Frank Winfield) Anderson, 210 Ariz. 327, 111P.3d 639 (
(Death penalty upheld) Jury Trial/Indep. Review
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.
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
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
(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.
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.”
or Depraved – Not Found.
Relishing - Not Found.
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.”
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
The court found no
“credible” evidence that Anderson feared 19-year-old Bobby
Poyson and was coerced by him into committing the murders.
PARTICIPATION) – NOT FOUND
Given Anderson’s “substantial role in
each of the murders,” the court rejected the characterization of his
participation as “minor.”
TROUBLED CHILDHOOD –
Anderson’s childhood troubles did
not explain his decision, “decades later at age forty-eight, to kill
three innocent people to steal a pickup.”
PERSONALITY/LOW IQ – LITTLE WEIGHT
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.”
RECEIVED BY 14-YEAR-OLD ACCOMPLICE – NOT FOUND
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.”
COOPERATION WITH POLICE
– LITTLE WEIGHT
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.
GOOD RECORD AS INMATE
– LITTLE WEIGHT
There was evidence that Anderson had been a “model inmate.” Laudable,
but insufficient to call for leniency.
CHRISTIAN MINISTRY WHILE INCARCERATED –
There was evidence
that Anderson had made efforts to assist
fellow inmates through his Christian ministry.
Laudable, but insufficient to call for leniency.
Affirmed; Death Sentences Affirmed; Blakely issue regarding
aggravated sentences on non-capital felonies left for a supplemental
v. (Homer Ray) Roseberry, 210 Ariz.
360, 111 P.3d 402 ( 2005)
(Death penalty upheld)
Jury Trial/Indep. Review
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.
VALUE) – UPHELD
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
MITIGATING CIRCUMSTANCES: Not Discussed.
Convictions and Death Sentence Affirmed.
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