State v. Hausner

230 Ariz. 60

280 P.3d 604

STATE of Arizona, Appellee,

v.Dale Shawn HAUSNER, Appellant.

No. CR–09–0077–AP.

Supreme Court of Arizona, En Banc.

July 11, 2012.

Thomas C. Horne, Arizona Attorney General, By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section, Phoenix, Lacey Stover Gard, Assistant Attorney General, Tucson, Attorneys for State of Arizona.

Bruce Peterson, Office of the Legal Advocate, By Thomas J. Dennis, Deputy Legal Advocate, Phoenix, Attorney for Dale Shawn Hausner.

OPINION

BALES, Justice.

¶ 1 This automatic appeal arises from Dale Shawn Hausner's convictions and death sentences for six murders; he also was convicted and sentenced for seventy-four non-capital offenses. We have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 13–4031 (2011). We reverse Hausner's conviction for one count of animal cruelty and otherwise affirm his convictions and sentences.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 Between June 2005 and August 2006, Hausner engaged in a series of random shootings in the Phoenix area. He murdered six people, wounded eighteen others, and also shot several dogs and a horse. The human victims were pedestrians or bicyclists; the shootings largely occurred between 10 p.m. and 3 a.m.; and the victims were shot from Hausner's car with 12 gauge or .410 shotguns or a .22 caliber gun. Samuel Dieteman, Hausner's friend and roommate, participated in many of the crimes.

¶ 3 Hausner was identified through efforts of the Phoenix Police Department. In spring 2006, the police set up an investigative task force after concluding that a serial shooter was involved in an accelerating crime spree. In May 2006, one person (Claudia Gutierrez–Cruz) was killed and five others wounded; eleven more people were wounded from June 1 to July 22. In mid-July, an anonymous caller—later identified as Ron Horton—left a message with the “Silent Witness” program that his friend “Sammy” had said he was involved in the shootings. Horton later met with a police detective, said “Sammy” was Samuel Dieteman, and identified Dieteman in a video taken at a Walmart store that had been set on fire. On July 30, Robin Blasnek was killed with a .410 shotgun while she was walking at night in Phoenix.

¶ 4 At the request of police, Horton arranged to meet Dieteman at a bar on August 1. Police saw Hausner, whom they had not previously identified as a suspect, drop Dieteman off at the bar around 6:30 p.m. Hausner was driving a Toyota Camry, and witnesses had previously told police that a “Camry-type vehicle” had been involved in certain shootings. The police followed Hausner to a mall, where they placed a GPS tracking device on his car. Hausner later returned to the bar, spoke with Dieteman in the parking lot for about thirty minutes, and then returned to Hausner's apartment at about 8:20 p.m.

¶ 5 Shortly after 1 a.m. on August 2, Hausner drove from his apartment and met Dieteman at a casino. Police officers surreptitiously saw them open the trunk of Hausner's car, wait while a security guard drove past, and then remove a duffel bag and place it on the back seat. They left the casino. Over the next two hours, police followed them as they drove through several cities in the southeastern Phoenix metropolitan area. They appeared to drive aimlessly through business and residential neighborhoods, but when they approached pedestrians or bicyclists, they slowed and sometimes circled back to pass the person again. At about 4 a.m., they returned to Hausner's apartment, where an officer overheard one of them say “it's probably because of the rain,” as they walked inside.

¶ 6 On the evening of August 2, detectives met with the Maricopa County Attorney, who approved emergency wiretaps for Dieteman's phone and for Hausner's apartment and car. (This opinion, like the parties in their briefs and the trial court in its rulings, refers to the electronic monitoring devices as “wiretaps.”) That same night, detectives also obtained warrants from a judge authorizing police to place the wiretaps in the car and apartment.

¶ 7 From about 9:35 a.m. until midnight on August 3, the police monitored conversations in the apartment. Hausner and Dieteman made several statements implicating themselves in the shootings, including comments boasting or joking about certain killings and mocking their victims. Police also collected items from a bag Dieteman put in the apartment dumpster, including a map of the Phoenix area with markings near some of the shootings. Hausner's and Dieteman's fingerprints were on the map. The discarded items also included .410 shotgun shells; a written note listing Robin Blasnek's name, date, and time of shooting; and newspaper articles and clippings related to the shootings.

¶ 8 Near midnight on August 3, police arrested Hausner and Dieteman. Hausner later admitted owning shotguns, but told detectives he was not involved in the shootings. He also mentioned that a .410 shotgun had been used in the shootings, a fact the police had not publicized. On August 7, Hausner held a press conference and again denied involvement in the shootings.

¶ 9 After Hausner's arrest, police searched his apartment and found shotguns, ammunition, and news clippings and videos about the shootings. In Hausner's car, police found .22 shell casings and bullets, as well as .410 shot and 20 gauge shotgun shells. Hausner had once owned two .22 caliber rifles made by the Marlin Company. Based on rifling patterns found on bullets, a forensic expert determined that a .22 Marlin had been used in six of the crimes. The expert also matched shell casings found in Hausner's car to guns used in some of the crimes.

¶ 10 The State filed eighty-eight charges against Hausner in five indictments: eight counts of first degree, premeditated murder; two counts of aggravated assault; twenty-six counts of drive-by shooting; ten counts of animal cruelty; two counts of discharging a firearm at a non-residential structure; one count of discharging a firearm at a residential structure; one count of discharging a firearm within Tempe city limits; two counts of conspiracy to commit first degree murder; one count of conspiracy to commit animal cruelty; and two counts of arson involving two Walmart stores.

¶ 11 The cases were consolidated for trial. Dieteman entered a plea agreement and testified against Hausner, who testified on his own behalf. A jury found Hausner guilty of eighty offenses and acquitted him of seven. (The State dismissed one.) During the aggravation phase, the State presented evidence to prove that the murders of Gutierrez–Cruz and Blasnek were “especially cruel” and thus death-eligible under A.R.S. § 13–751(F)(6). (This opinion cites the current version of criminal statutes unless they have materially changed since the conduct at issue.) The State relied on guilt-phase evidence to prove other aggravating factors.

¶ 12 With respect to Gutierrez–Cruz and Blasnek, the jury found the (F)(6) aggravator because each murder was both “especially cruel” and “heinous or depraved.” The jury found the (F)(6) aggravator with respect to victims Jose Ortis and Marco Carillo because their murders were “heinous or depraved.” With respect to these four victims, the jury also found the murders were committed in a “cold, calculated manner,” an aggravating factor under § 13–751(F)(13). Finally, with respect to these victims and victims David Estrada and Nathanial Shoffner, the jury found both the (F)(1) (conviction of another offense subject to sentence of life imprisonment or death) and (F)(2) (prior conviction of a “serious offense”) aggravators.

¶ 13 Hausner waived mitigation other than allocution. The jury determined that death was the appropriate sentence for each of the six murder convictions. The trial court also sentenced Hausner to consecutive life terms for his two convictions for conspiracy to commit first degree murder and various concurrent and consecutive sentences for his other non-capital convictions. This automatic appeal followed.

DISCUSSION

¶ 14 This opinion discusses issues that Hausner raised and argued on appeal. An appendix lists seventeen other constitutional claims that Hauser seeks to preserve for later review, along with the prior decisions of this Court that he identifies as rejecting them.

A. Dismissal of Prospective Jurors

¶ 15 Hausner argues that the trial court erred by granting the State's motion to strike potential jurors 235A and 164B, who voiced hesitation, but said they could vote for the death penalty. He maintains that the trial court dismissed these jurors “merely to taper an over-abundance of qualified jurors” and to make a “clean record through jury selection,” and thereby violated Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).

¶ 16 A potential juror may not be struck for cause merely because he “voiced general objections to the death penalty.” State v. Prince (Prince II), 226 Ariz. 516, 528 ¶ 27, 250 P.3d 1145, 1157 (2011) (quoting Witherspoon, 391 U.S. at 522, 88 S.Ct. 1770). However, a trial court “may strike a juror whose views about capital punishment ‘would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” Prince II, 226 Ariz. at 528 ¶ 27, 250 P.3d at 1157 (quoting Witt, 469 U.S. at 433, 105 S.Ct. 844).

¶ 17 During voir dire, when the trial court denied motions to strike certain jurors for cause, it placed them in a “pool” for later reconsideration. The pool included jurors 235A and 164B and six jurors to whom Hausner objected. Subsequently, the trial court—without objection by Hausner—reconsidered the objections to these eight jurors and struck them all. The court noted that there was “no issue” with respect to forty-one jurors remaining on the clerk's juror list (the list was in ascending numeric order,...