State v. Tucker

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-01-0091-AP
Appellee,)
) Maricopa County
v. ) Superior Court
) No. CR1999-015293
EUGENE ROBERT TUCKER, )
)
Appellant.)
) O P I N I O N

Appeal from the Superior Court in Maricopa County,
The Honorable Michael D. Jones, Judge

CONVICTIONS AND ALL SENTENCES EXCEPT SENTENCES OF DEATH AFFIRMED
AND DEATH SENTENCES REMANDED FOR RESENTENCING

Janet A. Napolitano, Former Attorney General, Phoenix
Terry Goddard, Attorney General
By: Kent E. Cattani, Chief Counsel,
Capital Litigation Section
and: Dawn M. Northup, Assistant Attorney General
Robert L. Ellman, Assistant Attorney General
James P. Beene, Assistant Attorney General
John P. Todd, Assistant Attorney General
Bruce M. Ferg, Assistant Attorney General Tucson
Attorneys for Appellee

James J. Haas, Maricopa County Public Defender Phoenix
By: Christopher V. Johns, Deputy Public Defender
James H. Kemper, Deputy Public Defender
Attorneys for Appellant

R Y A N, Justice

¶1 Eugene Robert Tucker was convicted of three counts of

first degree murder for the July 15, 1999, deaths of AnnMarie

Merchant, Roscoe Merchant, and Cindy Richards. Tucker was also
found guilty of sexual assault, kidnapping, and burglary in the

first degree. He was sentenced to death for each of the first

degree murder counts. Tucker received the following sentences for

his other crimes: Twenty-five years to life for the sexual assault

conviction, twenty-one years for the kidnapping conviction, and

twenty-one years for the burglary conviction. These sentences were

ordered to be served consecutively.

¶2 Appeal to this court is mandatory and automatic when a

trial court imposes a sentence of death. Ariz. R. Crim. P. 26.15

and 31.2(b). This court has jurisdiction under Article 6, Section

5(3), of the Arizona Constitution and Arizona Revised Statutes

(“A.R.S.”) section 13-4031 (2001).

I. BACKGROUND1

¶3 AnnMarie Merchant and Roscoe Merchant were sister and

brother. Cindy Richards was Roscoe’s girlfriend. Tucker had a

relationship with AnnMarie for nearly a year before her death. He

had known Roscoe for slightly longer. Tucker and AnnMarie had

engaged in sexual intercourse at least twice. Tucker also had

visited the apartment where the murders took place on a number of

occasions.

¶4 AnnMarie often spoke on the telephone to family and

1
On appeal, the court views the facts presented in the
trial below in a light most favorable to sustaining the verdict.
State v. Gallegos, 178 Ariz. 1, 9, 870 P.2d 1097, 1105 (1994).

-2-
friends. She was in regular contact with her aunt, Hope Barnes,

with whom she had a close relationship. AnnMarie spoke almost

daily with her cousin, Cassandra Barnes, Hope’s daughter, with whom

she also had a close relationship.

¶5 On the evening of July 15, 1999, after a number of

telephone calls to the Merchant apartment went unanswered, Hope’s

husband called the police. When police arrived at the apartment,

they found AnnMarie’s body face down with her hands behind her

back. Her mouth was covered by duct tape. She was dressed in only

a gray tee-shirt and bra. A pair of jeans was found near her body.

Physical evidence obtained from AnnMarie’s body included semen

residue on her left inner thigh and on the front of her tee-shirt.

Testing of these semen samples resulted in a fourteen-point match

with Tucker’s DNA.2

¶6 Police found a single fingerprint belonging to Tucker at

the crime scene. It was located on the handle of the refrigerator

door.

¶7 During a search of the Tucker home, the police recovered

a roll of duct tape. Tests on the roll of tape did not disclose

any biological material linked to AnnMarie. A side-by-side

comparison of the tape found on AnnMarie’s body and the tape found

at the Tucker home indicated some similarities, but not a

2
Testimony indicated that only identical twins would share
all fourteen points in the DNA test result.

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conclusive match.

¶8 Ligature marks on AnnMarie’s wrists indicated that she

may have been handcuffed. Three pairs of handcuffs were recovered

during the search of Tucker’s home. The medical examiner did not

compare the seized handcuffs to the marks on AnnMarie’s wrists.

All three pairs of handcuffs were tested for the presence of

biological material, but none was found linking the handcuffs to

AnnMarie. At trial, Tucker testified that he had the handcuffs

because he was taking law enforcement classes in school.

¶9 AnnMarie’s body had a ligature mark around the neck. The

medical examiner testified it could have been made by a length of

telephone cord found near the body. The medical examiner indicated

that the ligature mark was made before AnnMarie’s death.

¶10 AnnMarie was bludgeoned several times on the top and back

of her head by a blunt instrument. A broken glass table top and

the general disarray of the room indicated an intense struggle took

place. The medical examiner believed that the weapon used to

inflict the head wounds was cylindrical and one-quarter to one-half

inch in diameter. A search of the crime scene, the surrounding

area, and the Tucker home yielded no object matching those

dimensions that contained any biological material that came from

AnnMarie.

¶11 AnnMarie had bruising around her vagina and anus. The

medical examiner testified that the extent of the bruising was not

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a normal result of sex. She opined that the victim had been made

to suffer based on the depth of the bruising.

¶12 AnnMarie suffered two gunshot wounds to the head. The

shots were fired at close range. The medical examiner found that

the cause of AnnMarie’s death was two gunshot wounds, blunt force

trauma, and strangulation. She indicated these were all

contributing factors and could not isolate any one of them as the

cause of death.

¶13 Roscoe’s and Cindy’s bodies were found in a separate

bedroom lying in their bed. Each had a single gunshot wound to the

head. Cindy also had a “through and through” gunshot wound to her

thumb. The medical examiner could not determine whether Roscoe and

Cindy were awake or asleep when they were shot. Cindy’s seven-

month-old son was found unharmed lying nearby in his crib.

¶14 The State’s ballistics expert testified that the slugs

recovered from all the victims were from .38 caliber bullets. The

lands and grooves on one of the slugs indicated it most likely was

fired from a Colt weapon. No gun was found at or near the crime

scene matching that description. A search of Tucker’s home turned

up only a Smith & Wesson .357 caliber handgun.

¶15 The ballistics expert testified that the weapon found in

Tucker’s home was not the murder weapon. Police found a number of

different types of .38 caliber bullets in the Tucker home. The

State presented evidence that .38 caliber bullets can be fired from

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a .357 gun. But because no shell casings were found at the crime

scene, police could not make a comparison with the bullets found in

Tucker’s home. Furthermore, the type of bullet that killed all

three victims was different from any of the types of bullets found

in the Tucker home.

¶16 At trial, Tucker contended that the physical evidence

found at the crime scene, his fingerprint and semen, could be

explained by his prior visits to the apartment and prior sexual

contact with AnnMarie. He testified that he had cooperated with

the police by voluntarily agreeing to be interviewed and giving a

blood sample. He attempted to counter the State’s theory that he

murdered the victims because of AnnMarie’s rejection of his sexual

advances by claiming the relationship had ended by mutual agreement

and that he had another girlfriend at the time. However, Tucker

did not know this girlfriend’s last name or her telephone number,

and he could not remember when they started seeing each other.

¶17 Tucker also raised an alibi defense. His mother claimed

that he was home helping her with yard work at the time the murders

took place. Mrs. Tucker testified that she had taken the day off

from work specifically to do yard work and that Tucker was home

with her all day. His father testified that Tucker was doing yard

work with his mother when he arrived home from work in the

afternoon on the day of the murders. Dennis Hall, a postal

carrier, testified that he saw Mrs. Tucker and a young man who

resembled Tucker doing yard work on the day of the murders.

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¶18 The jury found Tucker guilty on all counts. Following

the verdict, the court held an aggravation and mitigation hearing.

The State proved three aggravating factors: (1) Tucker knowingly

created a grave risk of death to Cindy’s baby by killing all of his

care givers and leaving him alone in the house, A.R.S. § 13-

703(F)(3) (2001); (2) the murder of AnnMarie was especially cruel,

and all the murders were heinous and depraved, A.R.S. § 13-

703(F)(6); and (3) Tucker had been convicted of other homicides

that were committed during the commission of the offense, A.R.S. §

13-703(F)(8). Tucker claimed his young age, A.R.S. § 13-703(G)(5),

rehabilitation potential, good character, and lack of prior

criminal history as mitigating factors. See A.R.S. § 13-703(G).

The court found Tucker’s age and lack of criminal history to be

mitigating factors, but rejected Tucker’s claims of good character

and rehabilitation potential as mitigating factors. The court

found the aggravating factors outweighed the mitigating factors and

sentenced Tucker to death on all three first degree murder counts.

II. Discussion

A.

¶19 Tucker claims that the trial court should have

disqualified his trial counsel, Greg Clark, because of a conflict

of interest. He contends that Clark had an actual conflict of

interest that prevented him from pursuing a third-party defense

that would have implicated a former client of Clark.

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¶20 Well before the trial, the State filed a motion to

determine counsel. The motion alleged that Clark might have a

conflict because he had represented Patrick Kozakiewicz, a

potential witness in Tucker’s case. Kozakiewicz and Tucker knew

each other. During police interviews, Tucker indicated that

Kozakiewicz knew, and did not like, Roscoe. The State’s motion

also stated that Kozakiewicz, during recorded jailhouse telephone

conversations, told his family that he planned to testify against

Tucker in this case. Additionally, Kozakiewicz told family members

that Clark was going to arrange for a plea bargain in exchange for

his testimony. Tucker claims that this evidence shows that Clark

had a conflict of interest that prevented him from pursuing

Kozakiewicz as a third-party defendant.

¶21 At a hearing on the matter, Clark stated that he had

withdrawn from representation of Kozakiewicz immediately after the

State filed its motion to determine counsel.3 Clark had

represented Kozakiewicz in two matters unrelated to this case: a

probation violation and a charge that Kozakiewicz possessed

contraband while he was in jail on the probation violation. Clark

avowed that he had only two brief conversations with Kozakiewicz

and that Tucker’s name was never mentioned. He equivocated as to

3
Clark’s Notice of Association in this case was filed on
March 1, 2000. The State filed a Motion for Determination of
Counsel on March 21, 2000. The next day Clark filed a Motion to
Withdraw from his representation of Kozakiewicz, which he says was
granted on March 23, 2000. Thus, Clark was counsel of record for
both Tucker and Kozakiewicz for only three weeks, a little more
than five months before Tucker’s case came to trial on August 29,
2000.

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whether he would pursue a third-party defense involving

Kozakiewicz.

¶22 The trial court found no actual or potential conflict of

interest. The court further found that the potential conflict was

fully disclosed to Tucker and that in agreeing to keep Clark as his

counsel, he waived any violation of his Sixth Amendment rights.4

Tucker argues the trial court’s refusal to disqualify Clark led to

structural error requiring a new trial.

¶23 Generally, cases in which courts have found structural

error involve a deprivation of counsel entirely, or denial of

access to counsel at a critical stage in the trial process.

Mickens v. Taylor, 535 U.S. 162, ___, 122 S. Ct. 1237, 1240-41

(2002) (citing cases). The Sixth Amendment violation claimed in

this case does not rise to that level. Rather, Tucker’s challenge

is that the trial court improperly refused to disqualify defense

4
The trial court based its finding of waiver on the
following exchange:

THE COURT: Mr. Tucker, you understand that the issue is
the State is asking me to determine whether or not Mr.
Clark will continue as your attorney in this case. Do
you have a position you would like to tell they [sic]
about whether you would like Mr. Clark to continue or not
based upon a potential conflict with the witness Mr.
Sakovitz [sic].
THE DEFENDANT: No, sir, I don’t.
THE COURT: You are okay with Mr. Clark continuing then?
THE DEFENDANT: Oh, yes.
THE COURT: Do you want Mr. Clark to continue?
THE DEFENDANT: Yes.

We do not address the issue of waiver in this case because at oral
argument the State conceded that, on this record, the evidence that
Tucker waived his Sixth Amendment rights is inadequate.

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counsel. We review a trial court’s decision on the

disqualification of counsel for abuse of discretion. State v.

Jones, 185 Ariz. 471, 482, 917 P.2d 200, 211 (1996) (citing Okeani

v. Superior Court, 178 Ariz. 180, 181, 871 P.2d 727, 728 (App.

1993)).

¶24 In Jones, this court examined whether the trial court

wrongly refused to grant a withdrawal motion by defense counsel.

The motion was filed because the State disclosed as a potential

witness a former client of defense counsel for Jones. 185 Ariz. at

482, 917 P.2d at 211. The court found no error because neither

party called the witness at trial. Id. Thus, no conflict of

interest developed. Id. The court further held that if Jones was

“arguing that defense counsel’s decision not to call [the witness]

to testify was ineffective assistance of counsel, he must do so in

a proceeding for post-conviction relief.”5 Id.

¶25 Because Kozakeiwicz was not called as a witness in this

case, no conflict of interest actually arose. However, Tucker

argues that Kozakeiwicz was not called as a witness because Clark

chose not to investigate the possibility of naming Kozakeiwicz as

a third-party defendant because of a conflict of interest. Tucker

claims that despite Kozakeiwicz being an obvious third-party

defendant, Clark avoided investigating the defense because the

ethical rules prevented him from doing so.

5
The witness might have corroborated Jones’s self-defense
claim as to one victim, and his claim that someone else killed the
other victim. Jones, 185 Ariz. at 482, 917 P.2d at 211.

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¶26 This argument presents two problems. First, there is no

record of why Clark did not pursue a third-party defense. He may

not have pursued the defense because of the potential ethical

concerns of implicating a former client. On the other hand, he may

not have pursued such a defense because he and his client decided

that the evidence would not have supported the defense.6 Why Clark

did not pursue a third-party defense can only be developed at an

evidentiary hearing in a post-conviction relief proceeding. See

id. at 482-83, 917 P.2d at 211-12 (citing State v. Carver, 160

Ariz. 167, 175, 771 P.2d 1382, 1390 (1989)); see also State v.

Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002) (“We

reiterate that ineffective assistance of counsel claims are to be

brought during Rule 32 proceedings. Any such claims improvidently

raised in a direct appeal, henceforth, will not be addressed by

appellate courts regardless of merit.”). To that extent, Jones

controls the resolution of this issue.

¶27 The second reason Tucker’s argument fails on this record

is that the evidence supporting a third-party defense is not so

compelling that we can conclude, as a matter of law, that Clark’s

failure to pursue the defense demonstrates that he was laboring

under an actual conflict of interest that had an adverse effect on

6
Before trial, the trial court ordered that fingerprints
be retaken from Kozakeiwicz. Apparently, the results of
comparisons of his prints with latent prints from the crime scene
were negative because the parties entered into a stipulation
regarding identification of the latent prints found at the crime
scene.

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his performance.

¶28 In Arizona, to have a viable third-party defense, the

defendant must establish that the evidence of third-party

responsibility is relevant and admissible under Arizona Rules of

Evidence 401, 402, and 403. State v. Gibson, 202 Ariz. 321, 323-

24, ¶¶ 15-16, 44 P.3d 1001, 1003-04 (2002). To be relevant,

evidence must tend to prove or disprove a fact that is of

consequence to the case. Ariz. R. Evid. 401. The fact of

consequence is the identity of the killer of AnnMarie and Roscoe

Merchant and Cindy Richards. Evidence that Kozakiewicz could have

been the killer would be relevant to that issue. In Gibson, this

court stated that for evidence related to a third-party defense to

be relevant it “need only tend to create a reasonable doubt as to

the defendant’s guilt.” 202 Ariz. at 324, ¶ 16, 44 P.3d at 1004.

¶29 The evidence Tucker offers that Kozakiewicz might be the

killer is the following: He knew all of the victims in this case;

he did not like Roscoe; he did not like blacks;7 he had spoken

derogatorily of Roscoe and blacks in general; he had access to

guns; he gave Tucker one of his three sets of handcuffs; and he had

pled guilty to another murder that occurred two months before the

murders in this case.

¶30 Tucker cites State v. Prion, 203 Ariz. 157, 52 P.3d 189

(2002), as supporting the proposition that “evidence [that]

7
Tucker is black and AnnMarie and Roscoe were bi-racial
(black and white).

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consisted of the defendant and another person being acquainted” was

sufficiently relevant to meet the Gibson standard. We disagree for

two reasons. First, Tucker misconstrues the holding in Prion.

Second, the evidence in Prion was far more extensive than that

presented in this case. See 203 Ariz. at 161, ¶ 23, 52 P.3d at

193.

¶31 Prion held that evidence that another person committed

the crimes is admissible if it “supports the notion that [the

third-party] had the opportunity and motive to commit this crime.”

Id. at 161, ¶ 24, 52 P.3d at 193 (emphasis added). The evidence in

Prion consisted in part of the following: The third-party defendant

was a co-worker of the victim at a restaurant; on the day the

victim disappeared he had rented a new apartment that was close to

both a night club where he also worked and the location at which

the victim’s car was found after her disappearance; he was working

at the night club the night the victim disappeared; and the doorman

at the night club said the victim was let into the club on the

night she disappeared specifically to see the third-party

defendant. Id. at 161, ¶ 23, 52 P.3d at 193.

¶32 The evidence Tucker offers only minimally indicates that

Kozakiewicz had motive, albeit the same motive as perhaps dozens of

other people who were acquainted with the Merchant family. But,

unlike in Prion, Tucker does not point to any evidence showing that

Kozakiewicz had the opportunity to kill the Merchants. Without

some evidence tending to connect Kozakiewicz to the crime scene,

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Tucker’s speculation that Kozakiewicz might have been the killer is

arguably irrelevant, and therefore would likely have been found

inadmissible.

¶33 Accordingly, Tucker’s claim that his right to the

assistance of conflict-free counsel, see Von Moltke v. Gillies, 332

U.S. 708, 725 (1948), was violated is not supported by this record.

He has not shown that Clark labored under an actual conflict of

interest, and he has not shown that Clark’s decision not to pursue

a third-party defense was motivated by concerns of violating the

ethical rules. Thus, any claim that Clark was ineffective in not

calling Kozakiewicz to testify or investigating him in the first

instance must be presented in a petition for post-conviction

relief. Spreitz, 202 Ariz. at 3, ¶ 9, 39 P.3d at 527. The trial

court therefore did not abuse its discretion in denying the State’s

motion to determine counsel.

¶34 Tucker next argues that even if the conflict of interest

did not rise to the level of a Sixth Amendment violation, this

court should remand for a new trial because of the appearance of

impropriety. See Gomez v. Superior Court, 149 Ariz. 223, 225-26,

717 P.2d 902, 904-05 (1986).

¶35 In Gomez, we held that while the appearance of

impropriety was no longer a standard in the Arizona Rules of

Professional Conduct, it still remains a valid claim for purposes

of disqualification of an attorney. Id. We listed four factors

for consideration when disqualification of an attorney is sought on

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the basis of the appearance of impropriety:

(1) whether the motion is being made for the purpose[] of
harassing the defendant, (2) whether the party bringing
the motion will be damaged in some way if the motion is
not granted, (3) whether there are any alternative
solutions, or is the proposed solution the least damaging
possible under the circumstances, and (4) whether the
possibility of public suspicion will outweigh any
benefits that might accrue due to continued
representation.

Id. at 226, 717 P.2d at 905 (citing Alexander v. Superior Court,

141 Ariz. 157, 165, 685 P.2d 1309, 1317 (1984).

¶36 Tucker’s only argument here focuses on the fourth factor.

He contends that Clark’s decision to forgo a third-party defense

because it would implicate a former client engenders “public

mockery of our criminal justice system, especially when it comes to

lawyers representing capital clients.” This argument presupposes

that Tucker had a viable third-party defense. But as discussed

above, the record does not support that presupposition. Thus, this

argument fails.

¶37 Finally, Tucker argues that the doctrine of judicial

estoppel should prohibit the State from taking a position on appeal

that is contrary to the position it asserted at trial. This court

has held that to establish a claim for the application of judicial

estoppel, “(1) the parties must be the same, (2) the question

involved must be the same, and (3) the party asserting the

inconsistent position must have been successful in the prior

judicial proceeding.” State v. Towery, 186 Ariz. 168, 182, 920

P.2d 290, 304 (1996) (citation omitted). Tucker fails to note that

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while the parties and the issue are the same, the State was not

successful in asserting its position in the trial court. The State

asserted that Clark’s conflict of interest in this case was so

serious that it could not be waived and thus Clark could not serve

as Tucker’s counsel. The State’s motion was denied. As such, the

State is not estopped from asserting its position on appeal.

B.

¶38 Tucker argues that the trial court erred in admitting

testimony from Cassandra Barnes (Cassie) regarding a telephone

conversation she had with AnnMarie on July 13, 1999. Specifically,

Tucker objects to the admission of Cassie’s testimony that AnnMarie

told her in that conversation that Tucker was upset with her and

verbally abusive toward her.8 Cassie testified that AnnMarie

called her that evening and sounded as though she was upset and

crying. AnnMarie told her that she had “just got[ten] off the

phone” with Tucker, that he had asked her to come to his house, and

when she had refused, he got upset and called her names.

¶39 After a hearing on this issue, the court admitted

Cassie’s testimony about AnnMarie’s statements from not only the

July 13th conversation, but also two other statements from a July

14th conversation. The court relied upon three different

exceptions to the rule against hearsay: present sense impression,

Ariz. R. Evid. 803(1); excited utterance, Ariz. R. Evid. 803(2);

and state of mind, Ariz. R. Evid. 803(3).

8
Tucker admittedly called AnnMarie “worthless” and a
“fat-ass.”

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¶40 The July 14 conversation included a statement by AnnMarie

that Tucker was upset with her, as well as a statement that she

wanted nothing more to do with Tucker.9 Tucker does not contest

the admission of the two statements from the July 14 conversation.

Rather, Tucker contends that the court erred in admitting the

statements from the July 13 conversation that he was upset with

AnnMarie and had called her names. He claims that it was error to

admit the statements under any exception to the rule against

hearsay.

¶41 The Arizona Rules of Evidence define hearsay as “a

statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the

matter asserted.” Ariz. R. Evid. 801(c). To be admissible, a

court must find that the out-of-court statement fits within one of

the many exceptions to the rule against hearsay. State v. Bass,

198 Ariz. 571, 577, ¶ 20, 12 P.3d 796, 802 (2000). We review

admissions of evidence under exceptions to the rule against hearsay

for abuse of discretion. State v. Robinson, 165 Ariz. 51, 56, 796

P.2d 853, 858 (1990); State v. Adamson, 136 Ariz. 250, 255, 665

9
During the July 14 conversation, while Cassie was talking
to AnnMarie, AnnMarie received a call on the other line. She used
call waiting to take the other call while Cassie waited on the
other line. When AnnMarie returned to the line to talk to Cassie,
she said that Tucker had been the caller on the other line and that
he had been upset with her and that she wanted nothing more to do
with him. The court admitted AnnMarie’s statements that Tucker was
upset with her under the present sense impression and excited
utterance exceptions to the rule against hearsay. See Ariz. R.
Evid. 803(1) & (2). The court admitted AnnMarie’s statement that
she wanted nothing more to do with Tucker as a statement of her
then existing state of mind. See Ariz. R. Evid. 803(3).

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P.2d 972, 977 (1983)(citation omitted). We conclude that the trial

court did not abuse its discretion in admitting the statement under

Rule 803(1). Thus, we find it unnecessary to decide whether the

statement was admissible under Rule 803(2) or 803(3).

¶42 Rule 803(1), Ariz. R. Evid., defines a present sense

impression as “[a] statement describing or explaining an event or

condition made while the declarant was perceiving the event or

condition, or immediately thereafter.” The theory behind this

exception “is that substantial contemporaneity of event and

statement negative the likelihood of deliberate or conscious

misrepresentation.” Joseph M. Livermore et al., Arizona Practice:

Law of Evidence 346 (4th ed. 2000)(citation omitted); see also 5

Weinstein’s Federal Evidence § 803.03[1] (2d ed. 2002) (noting that

present sense impressions are “highly trustworthy because: 1. the

statement is simultaneous with the event, thus, there is no memory

problem; 2. there is little or no time for calculated misstatement;

and 3. the statement is usually made to one who has equal

opportunity to observe and check misstatements”). Statements of

present sense impressions are deemed reliable because they are made

close in time to the events they describe. See Livermore et al.,

supra, at 346. The more time that elapses between the event and

the statement, the stronger the possibility that a declarant will

attempt, either consciously or subconsciously, to alter his or her

description of the event. See id. We assume, as a general matter,

that when the declarant has had little time to reflect on the event

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she has perceived, her statement will be spontaneous and therefore

reliable. See id.

¶43 The present sense impression exception has three

requirements. State v. Romanosky, 162 Ariz. 217, 222 n.5, 782 P.2d

693, 698 n.5 (1989). The statement must describe an event or

condition, that was perceived by the declarant, and the statement

must be made immediately after the event. Id.

¶44 There is no dispute that AnnMarie’s statements to Cassie

describe an event that AnnMarie perceived. The issue here is the

lapse of time between the perception and the statement.

Specifically, Tucker argues that AnnMarie did not make her

statement to Cassie “immediately” after she perceived Tucker’s

statement, as is required by Rule 803(1). While Cassie testified

that, in the July 13 conversation, AnnMarie said, “she had just

hung up” with Tucker, Cassie admitted she did not know exactly

when Tucker and AnnMarie spoke that day.

¶45 The phrase “just hung up” could have a variety of

meanings. To some it might denote a lapse of mere seconds, and to

others the passage of a longer time. Rule 803(1) requires some

degree of contemporaneity between the event and the statement. How

much contemporaneity has never been specified because every case is

decided on its individual facts. See Livermore et al., supra, at

346 (citing cases). The admissibility of such statements must be

judged on the totality of the circumstances. State v. Barnes, 124

Ariz. 586, 589-90, 606 P.2d 802, 805-06 (1980).

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¶46 That Cassie could not say that AnnMarie’s statements were

made “immediately” after her conversation with Tucker does not

necessarily make the statements inadmissible. Trial courts have

some latitude in finding whether a statement was made immediately

after the event. See, e.g., United States v. Parker, 936 F.2d 950,

954 (7th Cir. 1991) (holding railroad worker's statement to police,

made after he had walked approximately 100 feet, admissible as a

present sense impression); United States v. Blakey, 607 F.2d 779,

786 (7th Cir. 1979) (holding statement made twenty-three minutes

after event admissible as a present sense impression), overruled on

other grounds, Idaho v. Wright, 497 U.S. 805 (1990). We agree with

Tucker that the dictionary definitions of the terms “just” and

“immediate” differ slightly. However, while “just hung up” may

denote a variety of time frames, the phrase normally denotes a

short period of time.

¶47 The trial court observed Cassie while she testified

during the hearing. Thus, it was in a better position than are we

to find that Cassie would have understood what AnnMarie meant by

“just hung up.” Accordingly, we cannot say the trial court abused

its discretion in determining that, in this instance, “just hung

up” implied the sort of contemporaneity required by Arizona Rule of

Evidence 803(1).

C.

¶48 Tucker contends that the United States Supreme Court’s

decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), overruled

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the holding in Schad v. Arizona, 501 U.S. 624 (1991). Schad held

that jury unanimity is not required on which theory of first degree

murder the jury convicted. Id. @ 645.

¶49 The State offered alternative theories on which the jury

could have found Tucker guilty of the first degree murder of

AnnMarie. The jury could have found either that Tucker had

committed first degree murder by premeditation, or that he had

committed felony murder. Because there were alternative theories,

the court gave the jury a verdict form that required them to record

how many jurors voted for each alternative. All twelve members of

the jury found Tucker guilty of premeditated murder. However, only

eleven jurors voted in favor of felony murder. Tucker argues that

because the jury was not unanimous on the felony murder theory, his

sentence as to that murder count must be vacated.

¶50 There is only a single crime of first degree murder.

State v. Arnett, 158 Ariz. 15, 19, 760 P.2d 1064, 1068 (1988).

Felony murder is not a separate offense, id., as Tucker appears to

argue. That felony murder and premeditated murder contain

different elements does not make them different crimes, rather they

are simply two forms of first degree murder. Id.

¶51 Tucker’s argument that Apprendi overrules the holding in

Schad is meritless. Schad held that jurors need not be unanimous

as to a single theory of murder so long as they all agree that

first degree murder was committed, whether by premeditation or

felony murder. 501 U.S. at 645. Here the jury unanimously found

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Tucker guilty of premeditated murder. Thus, it is a moot point

that only eleven jurors also found Tucker guilty of first degree

murder by way of felony murder. Even if Apprendi did have some

effect on the holding in Schad, it is of no consequence here

because Tucker was unanimously found guilty of first degree murder

on a theory of premeditation.

D.

¶52 Tucker raises a number of sentencing issues in this case.

We address only one of them because we conclude that based on our

determination of that issue Tucker must be resentenced. Because

Tucker will be resentenced, all other sentencing issues he raises

are moot.

¶53 Tucker argues that he was deprived of his Sixth Amendment

right to a jury trial on the question of his capital sentence. In

Ring v. Arizona, 536 U.S. 584, 609 (2002) (Ring II), the United

States Supreme Court held that Arizona’s capital sentencing scheme

violated the right to a jury trial guaranteed by the Sixth

Amendment to the United States Constitution. The Court declared

that “[c]apital defendants, no less than non-capital defendants .

. . are entitled to a jury determination of any fact on which the

legislature conditions an increase in their maximum punishment.”

Id. at 589. The Court reversed our decision in State v. Ring, 200

Ariz. 267, 25 P.3d 1139 (2001) (Ring I), and remanded for further

proceedings consistent with its decision. Ring II, 536 U.S. at

609.

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¶54 Following the Supreme Court’s Ring II decision, we

consolidated all death penalty cases in which this court had not

yet issued a direct appeal mandate, including Tucker’s, to

determine whether Ring II required this court to reverse or vacate

the defendants’ death sentences. In State v. Ring, ___ Ariz. ___,

___, ¶ 53, 65 P.3d 915, 936 (2003) (Ring III), we concluded that we

will examine a death sentence imposed under Arizona’s superseded

capital sentencing statute for harmless error. See A.R.S. § 13-

703, amended by 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, § 1.

¶55 In Tucker’s case, the trial court found three aggravating

factors: (1) “In the commission of the offense the defendant

knowingly created a grave risk of death to another person or

persons in addition to the person murdered during the commission of

the offense,” A.R.S. § 13-703(F)(3); (2) “The defendant committed

the offense in an especially heinous, cruel or depraved manner,”

A.R.S. § 13-703(F)(6); and (3) “The defendant has been convicted of

one or more other homicides, as defined in § 13-1101, which were

committed during the commission of the offense,” A.R.S. § 13-

703(F)(8). Based on our decision in Ring III, none of the

aggravating factors found in Tucker’s case fall outside the Ring II

mandate. See Ring III, ___ Ariz. at ___, ¶¶ 54-86, 65 P.3d at 936-

42. Therefore, we must analyze each of Tucker’s aggravating

factors for harmless error. To determine whether allowing the

trial judge, rather than a jury, to find the presence of the

aggravating factors was harmless error we must find, beyond a

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reasonable doubt, that no reasonable jury could have come to a

different conclusion than the trial judge. See State v. Bible, 175

Ariz. 549, 588, 858 P.2d 1152, 1191 (1993) (discussing harmless

error).

¶56 The trial court based its finding of the (F)(3)

aggravator on the fact that Tucker had killed all the members of

the Merchant household and left Cindy’s infant son alone in his

crib with no means of caring for himself. The court found that

because the crib was near the head of the bed in which Roscoe and

Cindy were killed, Tucker must have known of the infant’s presence

and should have known that leaving the infant alone in the house

created a grave risk of death to the child. We conclude the error

here was not harmless.

¶57 The statute requires the fact finder to determine that

the defendant “knowingly created a grave risk of death.” A.R.S. §

13-703(F)(3). While we believe a reasonable jury could have

inferred that Tucker knew the child was in the room, we cannot say

that any reasonable jury would also have found that Tucker

knowingly placed the baby in danger of death, or indeed that he

knew that leaving the child alone created a grave risk of death.

¶58 In past cases involving this aggravator, this court has

found a defendant created a grave risk of death to bystanders by

firing a gun indiscriminately or setting fire to a building the

defendant knew was occupied. See, e.g., State v. Vickers, 159

Ariz. 532, 546, 768 P.2d 1177, 1191 (1989) (setting fire to an

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inmate in his cell, thus endangering nearby inmates trapped in

their cells); State v. McMurtrey, 151 Ariz. 105, 108, 726 P.2d 202,

205 (1986) (shooting victims in a crowded bar); State v. Ortiz, 131

Ariz. 195, 209, 639 P.2d 1020, 1034 (1982) (setting fire to the

victim’s house while her children were inside); State v. Doss, 116

Ariz. 156, 163, 568 P.2d 1054, 1061 (1977) (shooting a victim in a

crowded gymnasium). Generally, our decisions have held that a

third party must be in the zone of danger during the murderous

attack to be placed at grave risk of death. State v. Wood, 180

Ariz. 53, 69, 881 P.2d 1158, 1174 (1994). Here, the infant’s life

was placed in danger as a result of Tucker’s crimes, but there was

no evidence introduced that the infant was in any danger during the

attacks.

¶59 The State’s theory of grave danger in this case appears

to be based on the fact that an infant left alone creates a risk

the infant will die of dehydration or perhaps heat stroke.10 For

Tucker’s actions to have been knowing, there would have to be some

evidence that Tucker knew the child would be left alone for a very

long time. We find nothing in the record to support that

conclusion. Thus, we cannot conclude beyond a reasonable doubt

that any reasonable jury would have found either that Tucker

knowingly placed the infant at grave risk of death, or

alternatively, that the risk of death to the child was present

10
There was also some mention of the fact that the door to
the apartment was left open. While theoretically this placed the
life of the child at risk we find it difficult to say that created
a grave risk of death.

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during Tucker’s murderous attacks on the other three victims.

¶60 The (F)(6) aggravator was found with respect to each of

the victims. As to AnnMarie, the court found her murder was

especially cruel. Because the (F)(6) aggravator is phrased “in the

disjunctive, a finding of either cruelty or heinouness/depravity

will suffice to establish this factor.” State v. Djerf, 191 Ariz.

583, 595, ¶ 44, 959 P.2d 1274, 1286 (1998). “A murder is

especially cruel if the victim consciously suffers physical or

mental anguish.” Id. at 595, ¶ 45, 959 P.2d at 1286 (citation

omitted). And such suffering must be reasonably foreseeable. Id.

¶61 The evidence in this case showed that AnnMarie was raped,

beaten, strangled, and then shot. The police testified that the

disarray of the room and the various locations of blood spatter

patterns and blood pools indicated there was a prolonged struggle

in the room. While the medical examiner could not be certain about

AnnMarie’s state of consciousness during the attack, that she had

been handcuffed at some point during her ordeal indicates she was

conscious for at least some period as there would be little point

in subduing an unconscious victim. The extent of AnnMarie’s

injuries indicates that she suffered physically. And the

circumstances of her murder clearly demonstrate that it was

reasonably foreseeable she would suffer. Accordingly, we conclude

that no reasonable jury could have found the murder of AnnMarie was

anything but especially cruel.

¶62 The trial court also found the murder of AnnMarie was

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heinous and depraved. Because we have found harmless the Ring II

error that the murder of AnnMarie was especially cruel, it is

unnecessary for us to reach the question of whether her murder was

also heinous and depraved. Id. at 595, ¶ 44, 959 P.2d at 1286.

¶63 The trial court found the murders of Roscoe and Cindy

were heinous and depraved because of the helplessness of the

victims. The trial court theorized that they were killed for the

purpose of witness elimination. In Djerf, we stated there are five

factors that may indicate a murder was heinous or depraved. 191

Ariz. at 597, ¶ 53, 959 P.2d at 1288. The factors include: “(1)

relishing the murder, (2) inflicting gratuitous violence, (3)

victim mutilation, (4) senselessness of the crime, and (5)

helplessness of the victim.” Id. (citations omitted). In State v.

King, 180 Ariz. 268, 285, 883 P.2d 1024, 1041 (1994), we held that

the (F)(6) aggravator cannot be sustained solely on the basis that

a defendant killed to eliminate witnesses. We concluded that

witness elimination could be a factor in finding that a murder was

heinous and depraved, but it could not be the only factor. Id.

¶64 The purpose of aggravating factors is to distinguish

murders that are beyond the norm of first degree killings. See id.

at 287, 883 P.2d at 1043. While any murder is tragic and senseless

in its own way, it is debatable whether the execution style murder

of two sleeping victims is heinous and depraved. Thus, we cannot

find beyond a reasonable doubt that no jury could have found the

murders of Roscoe and Cindy were anything but heinous and depraved.

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¶65 Finally, the trial court found the (F)(8) aggravator in

this case because Tucker committed multiple homicides in connection

with his crimes. As we said in Ring III, this aggravator is

subject to harmless error analysis. ___ Ariz. at ___, ¶¶ 80-82, 65

P.3d at 941-42. But it is not enough that the jury found the

defendant guilty of multiple homicides. The (F)(8) aggravating

factor is only properly applicable when there is evidence that all

the killings took place during “a continuous course of criminal

conduct.” State v. Rogovich, 188 Ariz. 38, 45, 932 P.2d 794, 801

(1997). The fact-finder must determine that there was a “temporal,

spatial, and motivational relationship[] between the capital

homicide and the collateral [homicide].” Id. (quoting State v.

Lavers, 168 Ariz. 376, 393, 814 P.2d 333, 350 (1991)).

¶66 The murders in this case all occurred in the same

apartment, which clearly indicates a spatial relationship. The

State theorized Roscoe and Cindy were killed to eliminate them as

possible witnesses. While a jury may have found Tucker’s

motivation was something different, it is difficult to imagine a

motive for the killings unrelated to the murder of AnnMarie. Based

on the evidence offered at trial, any error as to the (F)(8)

aggravator was harmless because we believe that no reasonable jury

could have found differently than the trial judge.

¶67 Our inquiry must also consider whether reversible error

occurred with respect to the mitigating circumstances. Ring III,

___ Ariz. at ___, ¶ 89, ___, ¶ 104, 65 P.3d at 943, 946. As

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discussed earlier, Tucker presented as mitigating factors his age,

rehabilitation potential, good character, and lack of prior

criminal history. The trial court found Tucker’s age and lack of

prior criminal history to be mitigating factors. But on this

record, we cannot conclude that a reasonable jury would not also

have found as mitigating factors Tucker’s good character and

rehabilitation potential. Tucker presented evidence on these

factors through testimony from his mother. While the trial court

implicitly found the witness unbelievable, a jury could reach an

opposite conclusion. Thus, we cannot say that if a jury heard the

same evidence as the trial judge, it would reach the same

conclusions with respect to the mitigating factors.

¶68 In sum, while the error as to some of the aggravating

factors found by the trial court was harmless, we cannot say beyond

a reasonable doubt that a jury, presented with the same evidence,

would have found that the (F)(3) aggravator or the (F)(6)

aggravator as to Roscoe and Cindy had been proven beyond a

reasonable doubt. Nor on this record can we say that a jury would

have assessed the mitigating evidence as did the trial judge.

Therefore, we must remand this case for resentencing under A.R.S.

sections 13-703 and -703.01 (Supp. 2002).

III. CONCLUSION

¶69 For the foregoing reasons, we affirm Tucker’s

convictions on the three counts of first degree murder and his

convictions and sentences on the non-capital offenses. We remand

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Tucker’s death sentences for resentencing.

Michael D. Ryan, Justice

CONCURRING:

Ruth V. McGregor, Vice Chief Justice

Rebecca White Berch, Justice

Robert J. Corcoran, Justice (Retired)*

Jones, C.J., concurring in part, dissenting in part:

¶70 I concur in all aspects of today’s opinion pertaining to

Tucker’s convictions and sentences with the sole exception that I

dissent from the majority’s use of harmless error analysis of

capital sentencing determinations made by the trial judge in the

absence of the jury. In the aftermath of the Supreme Court’s

decision in Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002)

(Ring II), it is my view that the absence of the jury in the

sentencing phase of a capital trial amounts to structural error.

The right to jury trial is fundamental. Where a judge, not a jury

determines sentencing issues, a violation of the Sixth Amendment of

the Constitution of the United States, requiring trial by an

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impartial jury, has occurred. I would remand the case for

resentencing, simply on the basis of the Sixth Amendment violation.

See State v. Ring, ___ Ariz. ___, ___, ¶¶ 105-14, 65 P.3d 915, 946-

48 (2003) (Feldman, J., concurring in part, dissenting in part)

(Ring III).

Charles E. Jones, Chief Justice

* Due to a vacancy on the court, Retired Justice Corcoran was
designated to sit on this case pursuant to Article 6, Section 3, of
the Arizona Constitution.

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