State v. Vickers

885 P.2d 1086, 180 Ariz. 521, 179 Ariz. Adv. Rep. 3, 1994 Ariz. LEXIS 129
CourtArizona Supreme Court
DecidedDecember 6, 1994
DocketCR-90-0260-AP/PC
StatusPublished
Cited by23 cases

This text of 885 P.2d 1086 (State v. Vickers) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Vickers, 885 P.2d 1086, 180 Ariz. 521, 179 Ariz. Adv. Rep. 3, 1994 Ariz. LEXIS 129 (Ark. 1994).

Opinions

OPINION

CORCORAN, Justice.

On November 30, 1989, a Pinal County jury convicted appellant Robert Wayne Vickers (defendant) of premeditated first-degree murder. After an aggravation/mitigation hearing, the trial court sentenced defendant to death. Defendant’s conviction and death sentence are automatically appealed to this court. See A.R.S. § 13-4033; rules 26.15, 31.2(b), and 31.15(a)(3), Arizona Rules of Criminal Procedure. In addition, defendant seeks review of the trial court’s denial of his petition for post-conviction relief. See rule 32.9(c), Arizona Rules of Criminal Procedure.

We granted review of the denial of defendant’s petition for post-conviction relief and consolidated it with his automatic appeal. See rule 31.4(b)(2), Arizona Rules of Criminal Procedure. We have jurisdiction pursuant to Ariz. Const, art. 6, § 5(3), and A.R.S. §§ 13-4031, -4033, and -4035. Because we find that defendant received ineffective assistance of counsel, we reverse his conviction and remand this case for retrial.

ISSUES PRESENTED

Although defendant raises a number of issues in his brief, because of the disposition of this case, we address only the following two:

1. Was defendant denied effective assistance of counsel?
2. Did the trial court err in denying defendant’s motion to dismiss based on the destruction of all physical evidence relating to this case?

FACTUAL AND PROCEDURAL HISTORY

I. The Underlying Offense

Defendant and the victim, Frank Ponciano, had been cellmates at the Arizona State Prison for approximately a week and a half before Poneiano’s murder. On October 3,1978, defendant missed lunch because he overslept. When he awoke, defendant was angry with Ponciano for failing to awaken him for lunch and for drinking his Kool-Aid.

At approximately 5:00 a.m. on October 4, Officer Neal Malone was doing his usual “security walk” when defendant summoned him to defendant and Ponciano’s cell. As Officer Malone approached, he saw someone lying on the lower bunk covered with a blanket from head to toe. Defendant said, “Get this stinking son of a bitch out of my cell. I think he died last night.” Defendant then lifted the blanket and put the lit end of his cigar against the sole of Ponciano’s foot. When Ponciano did not react, Officer Malone had defendant remove the blanket that had been covering Ponciano. Officer Malone ob[523]*523served that the word “Bonzai” had been cut into Ponciano’s back. Ponciano also had been stabbed numerous times.

Shortly thereafter, Sergeant Richard Rovers arrived on the scene. He immediately entered the cell and checked the body, which was still warm in most places. Defendant was removed from the cell and strip searched, but no weapon was found on him. Officer Henry Stuhmer, who was present during the strip search, noted that there were no scratches, bruises, blood, or any other signs of a struggle on defendant’s body. In addition, Officer Malone later testified that defendant did not seem “unusual” at the time, and he did not appear nervous or frightened.

Meanwhile, correctional officers searched defendant and Ponciano’s cell. The officers found strips of a tom bed sheet that had been tied together with a knot. In a box labelled “Vickers,” they also found a yellow toothbrush that had been fashioned into a weapon. Specifically, one end of the toothbrush had been curled into a loop and the other end had been filed down to a point. Officer Stuhmer observed some red stains and a hair on the toothbrush handle.

After the search of defendant’s cell was complete, Detective Tom Solis interviewed defendant. Before the interview, defendant was advised of his Miranda rights. Initially, defendant maintained that he did not know what happened to Ponciano. Eventually, however, he said that “he might have done it,” but that “he could not remember.” Defendant claimed that he had had bad dreams all night, and when he awoke, he saw that Ponciano had stab wounds and “Bonzai” cut into his back. During the course of the interview, however, defendant admitted that he had considered “killing his cell partner, any cell partner” and that Ponciano had angered him by drinking his Kool-Aid.

Later that day, Kenneth Spillman, a psychology associate employed by the Department of Corrections, conducted a mental status examination of defendant. Spillman did not give defendant Miranda warnings before interviewing him. At the beginning of the interview, defendant reiterated most of what he told Detective Solis. But after defendant learned that Spillman was not tape-recording the conversation, he became much more talkative. When Spillman directly asked defendant whether he had killed Ponciano, defendant admitted that he had and that it was “premeditated.”

Defendant further stated that, after the 3:30 a.m. security check on October 4, he began preparing to kill Ponciano. He admitted that he made a garrote out of a bed sheet, and he then described in detail how he strangled and stabbed Ponciano. Thomas Jarvis, M.D., performed the autopsy on Ponciano and determined that the cause of death was manual and ligature strangulation. Basically, Dr. Jarvis’s conclusions regarding the cause of death were consistent with the description of the murder that defendant gave to Spillman.

II. Procedural History

In June 1979, defendant was tried before a jury and convicted of first-degree murder. Pinal County Superior Court Judge Robert R. Bean sentenced defendant to death. Defendant appealed his conviction and his sentence, and this court affirmed both in June 1981. See State v. Vickers, 129 Ariz. 506, 633 P.2d 315 (1981) (Vickers I). After the United States District Court denied defendant’s petition for habeas corpus relief, defendant appealed the denial to the United States Court of Appeals for the Ninth Circuit.

In August 1986, the Ninth Circuit issued its opinion in Vickers v. Ricketts, 798 F.2d 369 (9th Cir.1986), cert. denied, 479 U.S. 1054, 107 S.Ct. 928, 93 L.Ed.2d 980 (1987). Because some of the evidence presented at trial indicated that defendant might have killed Ponciano as a result of a “sudden and impulsive” act, and because the trial court failed to instruct the jury on second-degree murder, the court reversed the district court’s denial of defendant’s petition for a writ of habeas corpus, set aside defendant’s conviction, and remanded the case for retrial.

Defendant was retried in November 1989 and again was convicted of first-degree murder. After conducting an aggravation/mitigation hearing and finding that the mitigating circumstances were not sufficiently sub[524]*524stantial to call for leniency, Pinal County Superior Court Judge Franklin D. Coxon sentenced defendant to death. Defendant filed with the trial court a notice of appeal and a petition for post-conviction relief, pursuant to rule 32, Arizona Rules of Criminal Procedure. The trial court scheduled a rule 32 hearing, and defendant’s direct appeal was stayed pending the outcome of the proceedings.

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Cite This Page — Counsel Stack

Bluebook (online)
885 P.2d 1086, 180 Ariz. 521, 179 Ariz. Adv. Rep. 3, 1994 Ariz. LEXIS 129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-vickers-ariz-1994.