IN THE SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Supreme Court
) No. CR-99-0378-AP
Appellee, )
)
)
v. )
) Pima County
) Superior Court
LEMUEL PRION, ) No. CR-60263
)
Appellant. )
)
_______________________________) O P I N I O N
Appeal from the Superior Court of Pima County
Honorable Bernardo P. Velasco, Judge
VACATED AND REMANDED
_________________________________________________________________
Janet Napolitano, Attorney General Phoenix
by Kent E. Cattani, Chief Counsel
Capital Litigation Section
and Bruce M. Ferg, Assistant Attorney General
Attorneys for Appellee
Law Offices of the Pima County Public Defender Tucson
by Frank P. Leto, Assistant Public Defender
and Brian X. Metcalf, Assistant Public Defender
Attorneys for Appellant
_________________________________________________________________
J O N E S, Chief Justice
¶1 Lemuel Prion was convicted by a jury January 28, 1999, of
first degree murder, kidnaping (dangerous), and aggravated assault
(dangerous). The murder of Diana Vicari occurred between October
22 and October 24, 1992. The kidnaping and aggravated assault of
Tabitha Armenta occurred at the end of 1992. Prion was acquitted
of a sexual assault charge as to Tabitha Armenta. He was sentenced
to death for the Vicari murder and to 21 years for the Armenta
kidnaping, with a consecutive 15-year sentence for the aggravated
assault. Appeal directly to this court is mandatory when the trial
court imposes a sentence of death. Arizona Revised Statutes
(A.R.S.) § 13-703.01 (2001). We have jurisdiction pursuant to
article VI, § 5(3) of the Arizona Constitution, A.R.S. § 13-4031,
and Arizona Rules of Criminal Procedure 26.15 and 31.2(b).
Facts
The Murder
¶2 Diana Vicari was at the Tucson Community Center at about
midnight Thursday, October 22, 1992. Her car was found near La Osa
Street the following Monday. There had been a party in that area
the previous Thursday night. Vicari’s car had been parked there
since early Friday morning. On Saturday, October 24, 1992, her
severed arms were found wrapped in plastic bags in a dumpster.
Evidence indicated the arms had been severed from the body after
death. The medical examiner testified that in her opinion two
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different instruments were used to sever the arms. She referenced
the probability of a heavy knife for the bones and a sharp serrated
knife for the flesh. There was no physical evidence identifying
Prion as her killer.
¶3 In August 1993, the police showed photographs of Vicari
and Prion to Troy Olson, an employee of the New Orleans
nightclub/bar in Tucson. According to the police, at that time
Olson recognized Vicari but not Prion. About seventeen months
later, in January 1995, Olson saw photographs of Vicari and Prion
on the front cover of the Tucson Weekly. Olson contacted the
police and then made a positive identification of Prion as the man
who was with Vicari in the New Orleans the night of October 22,
1992.
¶4 Olson testified at trial that Vicari introduced Prion to
him. Vicari’s intent, according to Olson, was to attend a party
later that evening. She asked Olson to meet her at the party.
Vicari was to obtain the address of the party from Prion, return to
the New Orleans, and leave the address for Olson. She did not
return to the bar.
¶5 In addition to Olson’s identification, the state provided
evidence of the following facts: Prion was working two jobs at the
time of the murder. He worked as a carpenter on weekdays and as a
nursing home assistant on the weekend shift for The Golden Years
Nursing Home. In December 1992, Prion told his nursing home
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employer that he was afraid he was going to kill someone. In
addition, he also owned several knives, including a machete, and
had been to a recording studio located near the dumpster where the
arms were discovered.
¶6 Prion also had a habit of talking about committing
violent acts on women. He often spoke of being ripped off by
women. He told his brother and sister-in-law about having
threatened or having thought about threatening a woman with a
machete, but ultimately coming to his senses and releasing her.
Prion made similar statements to former cellmates Jeffrey Brown and
Jerry Wilson.
¶7 Prion spoke to the Tucson police in September 1993 but
never admitted the Vicari murder. Prion’s comment upon seeing a
photograph of Vicari was, “I want to say the face looks familiar,
but the tits don’t. And I remember tits like that.” Detective
Salgado thought this comment was odd as that particular photograph
in his opinion shed little or no light on the accuracy of Prion’s
observation. Vicari’s mother testified that her daughter was full
chested.
The Kidnaping and Aggravated Assault
¶8 In 1992, Tabitha Armenta had been a street prostitute in
Tucson with a drug problem. Armenta would normally let men pick
her up, would not go through with the transaction, would take their
money and run, or would sell them drugs.
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¶9 Prion told Detective Salgado about being ripped off by a
prostitute named Tabitha when he was interviewed regarding the
Vicari murder. Prion stated that he made a false 911 overdose
call, citing Tabitha’s residence after she ripped him off several
times. Based on this information, the Tucson police contacted
Tabitha Armenta in prison in 1994. When police officers first
showed her a photograph of Prion, Armenta did not recognize him.
¶10 After speaking with the police, Armenta wrote a letter to
them, providing more details of the attack. She described an
incident in which her attacker spoke of being ripped off. He told
her he would cut her up and leave her or scatter her body. The
attacker forced her to perform oral sex on him. He threatened her
with a large knife and rubbed it on her body, saying that he
enjoyed threatening women and that it excited him. Armenta
eventually became angry and told her attacker that he should either
just do it or let her go. He let her go.
Trial Issues
Olson’s Identification
¶11 Prion moved to suppress Olson’s pretrial identification
as unduly suggestive, unreliable, and in violation of his
constitutional rights. Prion claimed that photographs viewed by
Olson were suggestive because each was a single photograph, and
they listed the defendant’s name and the fact that he was
incarcerated. The trial court noted the weakness of the
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identification but nevertheless allowed it into evidence.1
¶12 At trial, Olson identified Prion as the man he saw with
Vicari on the night she disappeared. Olson had seen photographs of
Prion on two earlier occasions. The first was August 1993 when the
police showed Olson a mug shot of Prion. At that time, Olson could
not identify Prion. He stated that the person in the photograph
did not look familiar.
¶13 The second occasion occurred when Olson saw separate
photographs of both the defendant and Vicari on the cover of the
January 1995 Tucson Weekly. Prion’s photograph supplied his name
and date of birth and indicated that he was incarcerated.
Moreover, the Weekly labeled Prion as the prime suspect in the
Vicari murder. After viewing this photograph, Olson identified
Prion as the man who was with Vicari on the night she disappeared.
¶14 We review orders regarding motions to suppress on an
abuse of discretion standard. State v. Atwood, 171 Ariz. 576, 603,
832 P.2d 593, 620 (1993). Pretrial identifications which are
fundamentally unfair implicate the due process clause of the
Fourteenth Amendment. State v. Nordstrom, 200 Ariz. 229, 241, 25
P.3d 717, 729 ¶23 (2001) (citing Stovall v. Denno, 388 U.S. 293,
297-98 (1967)); see also Neil v. Biggers, 409 U.S. 188, 199-200
(1972). To show a due process violation, the defendant must prove
1
Minute entry dated December 22, 1998.
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that the circumstances surrounding the pretrial identification
created a substantial likelihood of irreparable misidentification
and that the state was responsible for that suggestive pretrial
identification. State v. Williams, 166 Ariz. 132, 135-39, 800 P.2d
1240, 1243-47 (1987).
¶15 There is no need to perform a Biggers analysis when the
identification is not the result of state action. Nordstrom, 200
Ariz. at 241, 25 P.3d at 729 ¶24 (“Because the state action
requirement of the Fourteenth Amendment . . . cannot be
established, due process is inapposite.”) (citation omitted). We
find no state action here which resulted in the identification.
The article and photograph were published by the Tucson Weekly.
The article was written by a freelance writer not employed by the
Tucson Police Department. While the writer had some contact with
the police and misrepresented herself to others as having the
approval of the police, we agree with the trial court that she “was
not an agent of the Tucson Police Department nor the Pima County
Attorney . . . and had no direct contact or cooperation from Det.
Salgado.”
¶16 As this court noted in Nordstrom, due process concerns
may be implicated where a minimal threshold of reliability is not
met. Nordstrom, 200 Ariz. at 241, 25 P.3d at 729 ¶26. While
Olson’s identification of Prion was weak, we believe the state
demonstrated at least the threshold standard of reliability set
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forth in Williams, 166 Ariz. at 137, 800 P.2d at 1245.
¶17 Defense counsel thoroughly cross examined Olson regarding
his identification. Prion presented the testimony of another bar
employee to discredit Olson. He also presented testimony from a
psychologist regarding problems inherent in eyewitness
identification. The jury heard that Olson could not identify Prion
from the photograph shown him by the police in August 1993.
¶18 Any complaints concerning the identification go to its
weight and credibility, not its admissibility. Such matters are of
course for the jury to consider. Nordstrom, 200 Ariz. at 242, 25
P.3d at 730 ¶27. In our view, the trial court did not abuse its
discretion in admitting Olson’s identification of Prion.
Third party culpability evidence
¶19 The state repeatedly argued at trial that the inherent
tendency test from State v. Fulminante required a connection
between the third party and the crime and that vague suspicions
were insufficient. State v. Fulminante, 161 Ariz. 237, 252, 778
P.2d 602, 617 (1988) (“Before a defendant may introduce
. . . [third party culpability evidence] the defendant must show
that the evidence has an inherent tendency to connect such other
person with the actual commission of the crime.”). The state
maintained the same argument on appeal.
¶20 The trial judge precluded third party culpability
evidence regarding one John Mazure, relying on the inherent
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connection language in Fulminante. The judge did agree to admit
evidence relating to Robert Encillas and Greg Hatton, evidence
which the defense ultimately declined to use.
¶21 The admissibility of third party culpability evidence is
reviewed under an abuse of discretion standard. State v.
Tankersley, 191 Ariz. 359, 369, 956 P.2d 486, 496 ¶37 (1998). It
is permissible for a defendant to attempt to show that another
person committed the crime for which he is charged, Tankersley, 191
Ariz. at 369, 956 P.2d at 496 ¶38 (citations omitted), but it
remains in the trial court’s discretion to exclude the evidence if
it offers only a possible ground of suspicion against another.
State v. Oliver, 169 Ariz. 589, 591, 821 P.2d 250, 252 (App. 1991).
¶22 In our recent opinion in State v. Gibson, 202 Ariz. 321,
44 P.3d 1001 (2002), we clarified the rule, holding that a special,
higher standard of admissibility for third party culpability
evidence was not the intention of Fulminante. The proper standard
regarding third party culpability evidence is found in Rules 401,
402, and 403 of the Arizona Rules of Evidence. Any such evidence
must simply be relevant and then subjected to the normal 403
weighing analysis between relevance, on the one hand, and prejudice
or confusion on the other. Gibson, 202 Ariz. at 323, 44 P.3d at
1003 ¶13.
¶23 The defense offered the following evidence regarding
Mazure: he was a co-worker of Vicari’s at Eegees, a restaurant in
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Tucson; he was disciplined for sexually harassing female co-workers
on the job; he tried to conceal his discipline from the police; he
attempted to rape one of his female co-workers at his apartment
after work; he had a violent temper and bit a woman’s nose during
a fight; he rented a new apartment on the day of Vicari’s
disappearance; that new apartment was close to both the New Orleans
nightclub and the location at which Vicari’s car was found; he was
working at the New Orleans on the night Vicari disappeared; he
denied that fact when questioned by the police; one of the doormen
at the New Orleans said Vicari was let in to the bar that night
specifically to see him; and finally, he appeared at work the next
morning after Vicari’s disappearance so disheveled and disoriented
that he was fired. He was also considered a suspect early in the
investigation, at least to the extent that his car was tested by
the police for the presence of blood.
¶24 We explained in Gibson that the “proper focus in
determining relevancy is the effect the evidence has upon the
defendant’s culpability. To be relevant, the evidence need only
tend to create a reasonable doubt as to the defendant’s guilt.”
Gibson, 202 Ariz. at 324, 44 P.3d at 1004 ¶16 (emphasis in
original).
¶25 The proffered Mazure evidence is relevant in Prion’s
trial because on its face it may suggest reasonable doubt as to
Prion’s guilt. It supports the notion that Mazure had the
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opportunity and motive to commit this crime and that he may have
been in contact with Vicari.
¶26 While some confusion could occur with admission of the
Mazure evidence, its probative value is clear, and it is not
substantially outweighed by the possibility of prejudice. We
therefore conclude the trial court abused its discretion by
excluding the evidence of Mazure’s activity and behavior.
¶27 For an error to be reversible, it must be clearly
prejudicial and “sufficient to create a reasonable doubt about
whether the verdict might have been different had the error not
been committed.” State v. Pandeli, 200 Ariz. 365, 372, 26 P.3d
1136, 1143 ¶18 (2001) (citations omitted). Given the relative
strength of the Mazure evidence, we cannot say that the result of
this trial would have been the same if the evidence had been
admitted. The error necessitates a new trial on the Vicari murder
charge.
Joinder of Armenta and Vicari counts
¶28 The defendant filed a motion to sever the Armenta counts
from the Vicari murder charge. After hearing argument, Judge
Velasco issued a minute entry denying the defense motion to sever,
with no explanation. On the record, the trial judge stated that
his decision was based on motive. The motion was re-stated based
on the weakness of Armenta’s identification of her attacker. The
state argued that there was other evidence of identity. At that
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point, the trial judge once again denied the motion to sever. A
denial of severance is reviewed for abuse of discretion. State v.
Murray, 184 Ariz. 9, 25, 906 P.2d 542, 558 (1995).
A. Rule 13.3(a)
¶29 It is unclear from the record which subsection of Rule
13.3(a)2 of our Rules of Criminal Procedure formed the basis for
the trial judge’s determination allowing consolidation of the
Vicari murder with the Armenta kidnaping and aggravated assault.
Ariz. R. Crim. P. 13.3(a). We will briefly discuss each of the
subsections.
¶30 Cases joined under Rule 13.3(a)(1) must be severed upon
request unless the evidence on the joined count would be admissible
in a separate trial on the other count. Ariz. R. Crim. P. 13.4(b).
In other words, since the defendant requested severance, subsection
(a)(1) could not support consolidation unless the trial judge
believed the evidence was cross-admissible.3
¶31 As to Rule 13.3(a)(2), the state now concedes that the
2
Two or more offenses may be joined if they:
(1) [a]re of the same or similar character; or
(2) [a]re based on the same conduct or are otherwise
connected together in their commission; or
(3) [a]re alleged to have been a part of a common scheme
or plan.
Ariz. R. Crim. P. 13.3(a).
3
We discuss the admissibility of the Armenta crimes as
evidence of other acts under Rule 404(b) later in part B of this
section. Ariz. R. Evid. 404(b).
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Vicari murder and the Armenta crimes did not involve the “same
conduct.” Further, although the prosecutor argued for joinder
under 13.3(a)(3) at trial, the state acknowledges on appeal that
under our current Ives standard, such joinder would not be
appropriate. State v. Ives, 187 Ariz. 102, 106-08, 927 P.2d 762,
766-68 (1996). This means the only unanswered question is whether
the Vicari and Armenta offenses were “otherwise connected together
in their commission” under Rule 13.3(a)(2).
¶32 The “otherwise connected together in their commission”
language addresses whether evidence of the two crimes was so
intertwined and related that much the same evidence was relevant to
and would prove both, and the crimes themselves arose out of a
series of connected acts. See State v. Williams, 183 Ariz. 368,
375-77, 904 P.2d 437, 444-46 (1995) (murder of first victim
consolidated with armed robbery and attempted murder of second
victim where attempted murder occurred after the murder, and by the
defendant’s own statements was to silence a witness who he believed
had implicated him in the first murder); State v. Comer, 165 Ariz.
413, 418-20, 799 P.2d 333, 338-40 (1990) (murder and armed robbery
of one victim consolidated under Rule 13.3(a)(2) and (3) with
series of crimes perpetrated on victims two and three where
temporal proximity existed between the two sets of crimes and they
were a series of events connected by the common purpose of
obtaining money and supplies); State v. Martinez-Villareal, 145
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Ariz. 441, 446-47, 702 P.2d 670, 675-76 (1985) (two murder charges
properly joined with burglary charge where the murder weapons came
from the burglary).
¶33 The crimes against the two victims here were not
intertwined. The Vicari murder and the Armenta kidnaping and
assault were not provable by most of the same evidence, and they
did not arise out of a series of connected acts. As far as we can
discern from this record, the criminal acts against Vicari were
quite distinct from those against Armenta.
¶34 In addition, in Ives we clarified that the term “common
scheme or plan” was to be interpreted narrowly so as to define the
distinction between “same or similar character” and “common scheme
or plan.” Ives, 187 Ariz. at 107-08, 927 P.2d at 767-68 (“We adopt
this narrower definition because any other result blends Rule
13.3(a)(1) . . . and Rule 13.3(a)(3) . . . beyond recognition. If
common scheme is merely a ‘visual connection’ manifested by
‘similarities where one would expect differences,’ Rule 13.3(a)(3)
becomes a detour around defendant’s right to sever offenses joined
because they are similar.”).
¶35 Likewise, Rule 13.3(a)(2) should be interpreted narrowly.
We reject the state’s suggestion that Rule 13.3(a)(2) is a catch-
all for cases in which some logical connection exists between
unrelated crimes. Viewing “otherwise connected together in their
commission” as a catch-all would similarly make Rule 13.3(a)(2) “a
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detour around defendant’s right to sever offenses joined because
they are similar.” Id.
¶36 Under the foregoing standard, we find the trial judge’s
decision to deny severance an abuse of discretion.
B. Admissibility of Other Acts Under Rule 404
¶37 The trial judge noted identity and motive stemming from
the evidence of other acts as his reasons for allowing
consolidation. Other acts evidence must be evaluated under Rule
404(b) of the Rules of Evidence.4 For other act evidence to be
admissible, it must be shown by the clear and convincing standard
that the act was committed and that the defendant committed it.
State v. Terrazas, 189 Ariz. 580, 582, 944 P.2d 1194, 1196 (1997).
¶38 The identity exception to Rule 404 is applicable only
where “the pattern and characteristics of the crimes . . . are so
unusual and distinctive as to be like a signature.” State v.
Stuard, 176 Ariz. 589, 597, 863 P.2d 881, 889 (1993) (citations
omitted); see also State v. Jackson, 186 Ariz. 20, 27, 918 P.2d
4
Except as provided in Rule 404(c) evidence of
other crimes, wrongs, or acts is not
admissible to prove the character of a person
in order to show action in conformity
therewith. It may, however, be admissible for
other purposes, such as proof of motive,
opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or
accident.
Ariz. R. Evid. 404(b).
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1038, 1045 (1996) (“[T]he modus operandi of and the circumstances
surrounding the two crimes must be sufficiently similar as to be
like a signature.”) (citations omitted).
¶39 Here, very little is known about what happened to the
murder victim because her body has never been found. She was a
nineteen-year-old college student seen in a bar with the defendant.
Two days later her severed arms were discovered in a dumpster. It
is unknown if she was sexually assaulted prior to being murdered or
what the cause or circumstance of death may have been. Tabitha
Armenta was a thirty-five-year-old street prostitute involved with
drugs when she was detained by a man against her will, threatened
with a knife, and ultimately released. Her attacker threatened to
cut her up and leave her or scatter her body. He rubbed a knife on
her body and told her that threatening women excited him.
¶40 In addition, there is insufficient evidence regarding the
Vicari murder to conclude that the crimes against the two victims
were so “unusual and distinctive as to be like a signature.”
Stuard, 176 Ariz. at 597, 863 P.2d at 889 (citations omitted).
There is no evidence in this record to indicate that Vicari was
sexually assaulted or that her attacker was sexually gratified by
threatening women. We know neither the extent to which Vicari was
injured prior to her death nor the cause of death. We do know that
she was not released unharmed.
¶41 Any connection between the two crimes is attenuated at
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best. The most that can be said is that each occurred in Tucson at
the end of 1992, each involved a female victim, and a knife or
knives were utilized by the perpetrator(s) at some point during
commission of the crimes. These few factors are insufficient to
suggest a signature crime. Arizona law requires a more clear
connection to support a Rule 404 exception based on identity.5
¶42 Motive, also indicated by the trial judge, is another
exception to the general rule that other act evidence is generally
inadmissible. Ariz. R. Evid. 404(b). The state argued that both
the Vicari murder and the Armenta crimes were sexually motivated
and involved the defendant’s desire to terrorize, rape, kill, and
dismember women. The state cited the defendant’s many statements
to family members, cellmates, and others of having picked up women,
having threatened them with a knife or machete, and having thought
about killing the victims to support its sexual motivation theory.
The prosecutor argued this connection in closing argument, saying
Vicari was “probably also raped,” both Armenta and Vicari were
“brunette[s] with blue eyes,” and defendant’s fantasies about
picking up a young girl and cutting her up is “exactly what
happened to [Vicari].”
5
Moreover, the trial judge suppressed Armenta’s identification
of the defendant as her attacker. Given this, we question the
state’s ability to meet the required clear and convincing standard
for other acts evidence. State v. Terrazas, 189 Ariz. 580, 582,
944 P.2d 1194, 1196 (1997).
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¶43 These are statements that essentially amount to aberrant
sexual propensity evidence under Evidence Rule 404(c) which cannot
be admitted, much less argued, without specific findings.6 The
defendant was not charged with a sexual offense regarding Vicari.
His general threats to do harm have little probative value when not
specifically directed at a particular victim. State v. Hughes, 189
Ariz. 62, 71, 938 P.2d 457, 466 (1997); State v. Bible, 175 Ariz.
549, 593, 858 P.2d 1152, 1196 (1993). Without more, the state has
not satisfied the requisite burden by which to justify Rule 404(c)
findings. Therefore, evidence introduced in support of the Armenta
counts should not have been admitted in the Vicari murder trial.
¶44 It is reasonably clear that the state’s evidence in
support of the Armenta counts does no more than raise an inference
that the “defendant acted in conformity with a negative view of
women . . . [and] this type of evidence is prohibited by Rule
404(a).” Hughes, 189 Ariz. at 71-72, 938 P.2d at 466-67. Because
evidence of these separate crimes was not cross-admissible under
6
The rule requires the trial court to find the following:
sufficient proof that the defendant committed the prior act; the
other act supports a reasonable inference that the defendant has a
character trait giving rise to an aberrant sexual propensity to
commit the crime charged; and that the other crime would be
admissible under a Rule 403 weighing analysis (taking into
consideration the remoteness of the prior act, the similarity of
the prior act, the strength of evidence supporting the prior act,
the frequency of the other acts, surrounding circumstances,
relevant intervening events, other similarities or differences, and
other relevant factors). Ariz. R. Evid. 404(c).
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Rule 404, and joinder was not permitted under Rule 13.3(a),
severance of the counts relating to Vicari and Armenta was denied
in error.7
Conclusion
¶45 Reversible error occurred with the exclusion of the third
party culpability evidence concerning John Mazure. Further, the
trial court committed prejudicial error in failing to sever the
crimes against Armenta from the Vicari murder.
¶46 Prion’s convictions and sentences are vacated on all
counts and the case is remanded to the trial court for proceedings
consistent with this opinion.
__________________________________
Charles E. Jones
Chief Justice
CONCURRING:
____________________________________
Ruth V. McGregor, Vice Chief Justice
____________________________________
Stanley G. Feldman, Justice
7
Additionally, the court notes that even if the evidence
supporting both the Vicari and Armenta charges was cross-
admissible, its highly prejudicial impact would substantially
outweigh any probative value. Ariz. R. Evid. 403.
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____________________________________
Thomas A. Zlaket, Justice (retired)
____________________________________
Edward C. Voss, Chief Judge, Court
Appeals, Division One
NOTE: Due to the vacancy on this court, the Honorable
Edward C. Voss, Chief Judge of the Court of Appeals,
Division One, was designated to participate in this case
under article VI, § 3 of the Arizona Constitution.
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State v. Prion
Court: Arizona Supreme Court
Date filed: 2002-08-20
Citations: 52 P.3d 189, 203 Ariz. 157
Copy CitationsCombined Opinion