State v. Cruz

672 P.2d 470, 137 Ariz. 541, 1983 Ariz. LEXIS 248
Arizona Supreme Court·Decided October 6, 1983·No. No. 5483·Published·Cited by 74 cases

Opinion

GORDON, Vice Chief Justice:

On December 10, 1981, a jury found appellant guilty of one count of conspiracy to commit first degree murder, two counts of first degree murder, one count of attempted first degree murder, three counts of kidnapping, three counts of armed robbery and one count of first degree burglary. On [543]*543January 11, 1982, appellant was sentenced to life imprisonment for conspiracy to commit first degree murder, death for each count of first degree murder, twenty-one years imprisonment for attempted first degree murder, twenty-one years imprisonment for each count of kidnapping, twenty-one years imprisonment for each count of armed robbery, and twenty-one years imprisonment for first degree burglary. This Court has jurisdiction under Ariz. Const, art. 6, § 5(3) and A.R.S. § 13-4031. The judgments of conviction and sentences as to all counts are reversed.

The evidence adduced at trial, viewed in the light most favorable to upholding the verdict, indicated that Pat Redmond and Ron Lukezic were partners in a successful printing business called Graphic Dimensions. In the summer of 1980 Graphic Dimensions was presented with the possibility of some lucrative printing contracts with certain Las Vegas hotels.

In September of 1980 appellant asked Arnold Merrill if he would be willing to kill Pat Redmond for $10,000. Merrill declined. Appellant wanted Pat Redmond killed in order to get Redmond’s interest in Graphic Dimensions. Appellant ultimately planned to have Ron Lukezic killed as well and take complete control of Graphic Dimensions.

In early December of 1980 appellant and Merrill went to the Phoenix Airport and picked up William Bracey and Murray Hooper who arrived on a flight from Chicago. After staying in a motel for a day or two Bracey and Hooper moved into Merrill’s house where they were introduced to Ed McCall. A few days later Bracey, Hooper and Merrill followed Pat Redmond’s car as Redmond left a bar. When they neared Redmond’s car Hooper attempted to shoot Redmond. The attempt failed when Merrill, who was driving, swerved the car. After the failed attempt Bracey and Hooper moved out of Merrill’s home. On December 8, 1980, McCall told Merrill he was joining up with Bracey and Hooper. Bracey and Hooper returned to Chicago shortly thereafter.

Bracey and Hooper came to Phoenix again on December 30, 1980. On the evening of December 31, Bracey, Hooper and McCall went to the Redmond home and forced their way in at gunpoint. Pat Redmond, his wife Marilyn, and Marilyn Redmond’s mother Helen Phelps were present. The Redmonds and Mrs. Phelps were herded into the master bedroom where they were relieved of their valuables, bound with surgical tape, and gagged. They were then forced to lie on the bed where they were each shot in the head. Pat Redmond’s throat was also cut. Pat Redmond and Mrs. Phelps died from their wounds but Marilyn Redmond lived.

Appellant was tried with McCall. Merrill was the state’s key witness. The state’s theory of the case was that appellant hired Bracey, Hooper and McCall to kill Pat Redmond. Appellant argued that the killings were the result of a robbery committed by Bracey, Hooper and McCall. McCall, along with the state, argued that the killings were a paid gangland-style execution ordered by appellant. McCall, however, claimed he was not involved. Both defendants were convicted. Appellant raises a number of issues on appeal.

DENIAL OF MOTION TO SEVER

Prior to trial appellant moved to sever his trial from co-defendant McCall’s arguing that McCall’s defense was so antagonistic to his that he could not get a fair trial if they were tried together. The motion was denied. Appellant re-urged the motion numerous times during the trial without success. He now claims the denial of the motion to sever was reversible error. We agree.

A trial court is required to grant a defendant’s motion to sever if necessary to promote a fair determination of guilt or innocence of any defendant, or if the court detects the presence or absence of unusual features of the crime or case that might prejudice the defendant. State v. McGill, 119 Ariz. 329, 580 P.2d 1183 (1978); State v. Dale, 113 Ariz. 212, 550 P.2d 83 (1976); State v. Druke, 115 Ariz. 224, 564 P.2d 913 [544]*544(App.1977). The decision to grant or deny a motion to sever is within the sound discretion of the trial court and will be reversed only if that discretion is abused. State v. Johnson, 122 Ariz. 260, 594 P.2d 514 (1979); State v. McGill, supra; see United States v. Badolato, 701 F.2d 915 (11th Cir.1983); United States v. Riola, 694 F.2d 670 (11th Cir.), cert. denied, - U.S. -, 103 S.Ct. 1532, 75 L.Ed.2d 953 (1983). In deciding whether to grant a severance the court must balance the possible prejudice to the defendant against interests of judicial economy. United States v. Sheikh, 654 F.2d 1057 (5th Cir.1981), cert. denied, 455 U.S. 991, 102 S.Ct. 1617, 71 L.Ed.2d 852 (1982); State v. Druke, supra. In challenging a trial court’s failure to sever, a defendant must demonstrate compelling prejudice against which the trial court was unable to protect. United States v. Bovain, 708 F.2d 606 (11th Cir.1983); United States v. Riola, supra; United States v. Madison, 689 F.2d 1300 (7th Cir.1982), cert. denied, - U.S. -, 103 S.Ct. 754, 74 L.Ed.2d 971 (1983).

This Court has not specifically addressed the question of when the existence of antagonistic defenses becomes so prejudicial that severance is required. There is, however, much authority on the question from the United States Courts of Appeal. It appears well settled that the mere presence of hostility between co-defendants, or the desire of each co-defendant to avoid conviction by placing the blame on the other does not require severance. United States v. Riola, supra; United States v. Nichols, 695 F.2d 86 (5th Cir.1982); United States v. Berkowitz, 662 F.2d 1127 (5th Cir.1981); United States v. Lutz, 621 F.2d 940 (9th Cir.), cert. denied, 449 U.S. 859, 101 S.Ct. 160, 66 L.Ed.2d 75 (1980); United States v. Boyd, 610 F.2d 521 (8th Cir.1979), cert. denied sub nom. Clark v. United States, 444 U.S. 1089, 100 S.Ct. 1052, 62 L.Ed.2d 777 (1980); United States v. Haldeman, 559 F.2d 31 (D.C.Cir.1976), cert. denied sub nom. Ehrlichman v. United States, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977); United States v. Ehrlichman, 546 F.2d 910

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State v. Cruz, 672 P.2d 470, 137 Ariz. 541, 1983 Ariz. LEXIS 248 (Ark. 1983).

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