Executed February 29, 2012 at 10:23 a.m. by Lethal Injection in Arizona
5th murderer executed in U.S. in 2012
1282nd murderer executed in U.S. since 1976
1st murderer executed in Arizona in 2011
29th murderer executed in Arizona since 1976
(Race/Sex/Age at Murder-Execution)
(Race/Sex/Age at Murder)
Robert Henry Moorman
a/k/a Robert Henry Moormann
W / M / 35 - 63
|Roberta Maude Moorman
W / F / 74
State v. Moorman, 154 Ariz. 578, 744 P.2d 679 (Ariz. 1987). (Direct Appeal)
Moormann v. Schriro, 426 F.3d 1044 (9th Cir. 2005). (Habeas)
"I hope this will bring closure and start the healing now and I hope they will forgive me in time."
Final / Special Meal:
A double hamburger, french fries, two beef burritos, two 14-ounce containers of rocky road ice cream, and three RC Colas.
Arizona Department of Corrections
Inmate: MOORMAN ROBERT H
Hair Color: Brown
Eye Color: Brown
Conviction Imposed: : MURDER 1ST DEGREE
Date of Offense: 01-13-84
Prior Commitment: Kidnapping, Cioconino County 01-25-72
Arizona Daily Star
Robert Henry Moorman
Date of Birth: June 4, 1948
While serving a sentence of nine years to life at the Arizona State Prison in Florence, Moorman was given a 72-hour compassionate furlough to visit with his mother. The two stayed at the Blue Mist Motel in Florence. On Jan. 13, 1984, Moorman bound and gagged his mother and then strangled and stabbed her. Moorman chopped the body into many parts and disposed of them in dumpsters throughout Florence.
Trial Verdict: April 4, 1985.
Sentencing: May 7, 1985.
Aggravating Circumstances: Prior conviction punishable by life imprisonment; Pecuniary gain; Especially heinous/cruel/depraved
Mitigating Circumstances: None sufficient to call for leniency
Source: "Profiles of Arizona Death Row Inmates," Arizona Attorney General's Office.
"Man put to death after last-minute appeals fail," by Dustin Volz. (Feb 29, 2012, 11:31 am)
WASHINGTON – A federal circuit court Tuesday refused to stand in the way of the executions of two Arizona inmates, one who was put to death Wednesday and one scheduled to die next week. Separate panels of the 9th U.S. Circuit Court of Appeals released a flurry of opinions this week rejecting appeals by death-row inmates Robert Henry Moormann and Robert Charles Towery.
Moormann, 63, was executed at 10 a.m. Wednesday for the 1984 murder and dismemberment of his adoptive mother while on a three-day furlough from prison. Towery, 47, is scheduled to be put to death by lethal injection March 8 for the 1991 robbery and murder of a Valley man.
Their attorneys pursued last-minute appeals Tuesday night, including appeals to the full 9th Circuit court but failed to obtain an emergency stay of execution to the U.S. Supreme Court for Moormann.
"Justice was carried out against convicted murderer Robert Moorman today, approximately 28 years after he brutally murdered and dismembered his adoptive mother, following a sentence of 9 years to life for kidnapping an eight year old girl," said state Attorney General Tom Horne following Moormann's execution Wednesday. "There has never been any doubt as to Moorman's guilt for this heinous crime," Horne said.
The circuit court Tuesday affirmed lower court decisions denying a stay of execution for Moormann and upholding recent changes to the Arizona Department of Corrections' lethal-injection protocol. Defense attorneys had argued that, among other problems, the new protocols lessen executioner qualifications. "The new protocol strips away the safety measures that were in the earlier protocol and that were found to be constitutional and consistent," said Dale Baich, the federal public defender for Arizona. "It's our view that the proper course is to stay the execution so that those serious questions could be addressed rather than allow the executions to go forward," he said.
A separate three-judge panel rejected an appeal claiming Moormann should not be executed because he is mentally retarded. On Monday, another circuit panel denied Towery's claims that a previous attorney engaged in "egregious" professional misconduct by failing to present evidence of an abusive childhood as a mitigating circumstance in his sentencing. "We were disappointed that the panel did not send this matter back to the state court," said Baich. "We have asked the full court to review the panel's decision and allow Mr. Towery to return to the state court for a new sentencing."
Gov. Jan Brewer could not reduce Moormann's sentence to life in prison because the Arizona Board of Executive Clemency last week voted 4-1 against recommending reducing his sentence.
"Families, others find closure in execution," by Daniel Dullum. (March 8, 2012 5:10 AM MST)
At 10:23 a.m. on Feb. 29, convicted felon Robert H. Moorman was declared dead following his execution at the Arizona State Prison – 27 years after receiving his sentence.
For Tom Rankin this particular order of execution offered a different kind of closure than that for relatives of the victims. He was the police chief in Florence 28 years ago when Moorman committed one of the most heinous crimes in the town’s history. “That was my third execution to observe, but this one was a bit more personal,” Rankin, one of the witnesses, said. “It provided closure for me, not only on that case, but for my law enforcement career. It was the last case that I had pending that I was involved in. “It’s like saying, ‘You’ve done your career. It’s over with now.’”
Ironically, the Blue Mist Motel is within sight from the ASP visitors’ parking area. It was at the Blue Mist where, on Jan. 13, 1984, Moorman beat, stabbed and suffocated his adoptive mother, 74-year-old Roberta Moorman, who, according to defense attorneys, sexually abused him into his adult years. Moorman then dismembered Roberta’s body, cutting off her head, legs and arms, halved her torso, and flushed her fingers down the toilet. Most of her remains were found in trash bins around town after asking various businesses if he could “dispose of spoiled meat and animal guts.”
Shortly after Moorman asked a corrections employee to dispose of “dog bones,” he was captured. The incident took place during a a three-day “compassionate furlough” from ASP, where Moorman was already serving nine years to life for kidnapping and molesting an 8-year-old girl in 1972.
Moorman, 63, was sentenced to death on May 7, 1985. Appeals to overturn his warrant of execution were denied in 1986, 1987 and 1992. A motion to issue a warrant of execution was filed by the attorney general on Oct. 12, 2011 and granted on Nov. 29.
Moorman was served his last meal between 7 p.m. and 7:30 p.m. on Feb. 28. It consisted of one double hamburger (two quarter-pound patties prepared “medium”) with two slices of onion, three leaves of lettuce, three tomato slices and a bun; plus French fries (with four ounces of ketchup), two three-ounce beef burritos, three Royal Crown colas, and two 14-ounce containers of Rocky Road ice cream. A light breakfast was an option, but there was no word on whether or not Moorman accepted it.
From the reporter’s notebook, here’s the sequence of events:
8 a.m. – The media witnesses are greeted and informed that no cameras, pens or outside note pads are allowed – a pencil and note pad is furnished by the prison.
8:38 a.m. – Arizona Department of Corrections Director Charles L. Ryan came to the media room and announced that there were no further stays of execution and no pending motions from the Superior Court.
9:39 a.m. – The media leaves its holding area to another room upstairs. There, a DOC employee offered a briefing on the execution itinerary.
9:45 a.m. – After the briefing, media names were drawn at random to determine the order of entering the viewing gallery. My name was drawn first.
10 a.m. – There’s a delay in the process, as Moorman is having a final meeting with his legal counsel.
10:12 a.m. – The media is led to Housing Unit No. 9, enters the gallery area, and is positioned next to a partition, separate from other witnesses.
10:19 a.m. – Approximately 22 witnesses, other than the media and DOC staff, enter the gallery. An undetermined number of witnesses are on the other side of the partition.
10:21 a.m. – The curtain opens, and Moorman is seen strapped to a gurney, wearing his orange prison apparel. He appears calm as his execution order is being read.
10:23 a.m. – Moorman is asked if he has any final words. Looking up at the ceiling with a slight smile, he responds with an apology to the families involved, adding, “I’m sorry for the pain I caused. I hope this brings closure and they can start healing now. I just hope that they can forgive me in time.” With that, the process of execution began.
10:24 a.m. – Moorman turns his head to his right and looks at the gallery. One minute later, he begins breathing hard, short of gasping for air, as the lethal injection of pentobarbital began to take effect.
10:27 a.m. – A physician enters the execution room to administer sedation.
10:29 a.m. – Moorman’s eyes are half-closed, looking peaceful, with little, if any, movement.
10:33 a.m. – The DOC announces, “The execution is completed.” The curtain is closed.
10:34 a.m. – The witnesses are excused.
10:40 a.m. – The media gives its witness account to six television stations and various print and radio reporters who did not see the execution.
“Death is never pretty,” Rankin said. “When I was standing there, I was wondering about (Roberta Moorman’s) family and wondering if any of her family was there. I didn’t know because I’ve lost contact with most of them. I didn’t recognize any of the other witnesses. “For the family’s sake, I hope it’s over. It’s a period I hope they’ll never have to live through again.”
Deacon Ed Sheffer of St. Thomas The Apostle Parish in Tucson, who performs ministry work on death row, has been Moorman’s spiritual advisor for the last 10 years. After the execution, Sheffer said, “At the end, Robert was at a peaceful place and for some time had come to terms with what he had done and his fate. You could hear it in his last words, his thoughts and concerns were for others, not himself.”
Sheffer said Moorman received last rites from Bishop Gerald Kicanas of Tucson on Feb. 21, and had his final communion prior to the execution at approximately 6 a.m. “He received his communion and was very grateful for our years of working together as he found his relationship with the Lord,” Sheffer said. “He moved from shame to guilt, to asking for mercy and reconciliation. “His soul is now in God’s hands.”
Rankin noted it was the only case from his days as police chief that resulted in the death penalty, saying, “It’s too bad about the way the death penalty is scheduled, with the long delays and the years it takes to fulfill the sentence. I understand the process, but for the family of the victim, closure should come sooner.
“As for Robert Moorman, he got what he deserved,” Rankin concluded. “There’s no need to talk about him anymore. In law enforcement, we say, ‘case closed.’”
"Vicious Killer Executed After 27 Years on Death Row," by Stacey Eldridge. (March 2, 2012|10:56 am)
Brutal killer Robert Moorman, who sat on death row for nearly three decade,s was executed by lethal injection Thursday at Arizona State Prison in Florence. Moorman, 63, was originally in prison for a kidnapping and sexually assaulting an 8-year-old girl in 1972. He was granted a 72-hour "compassionate furlough" from the prison to spend time with his adoptive mother, Roberta Moorman, on January 13, 1984, when he brutally murdered her.
Moorman stabbed and suffocated his 74-year-old adoptive mother just five minutes drive away from the prison at the Blue Mist Hotel. He chopped her up into pieces, cutting off her head, legs and arms, and then halved her torso and flushed her fingers down the toilet. Moorman than went to a number of business in the area and asked if he could dispose of spoiled meat and animal guts in their dumpsters, throwing out other body parts in trash cans and sewers. He was arrested when he asked a corrections officer to throw out what he said were dog bones.
His last words were to his mothers' family. "I hope this will bring closure and start the healing now and I hope they will forgive me in time," he said.
Former Florence Police Chief Tom Rankin witnessed the execution. He worked the case back in 1984, and the execution was closure for him: "I was thinking that it was finally over and he gets what he deserves," Rankin told Fox News.
The Arizona Department of Corrections divulged that Moorman's final meal was a double hamburger, french fries, two beef burritos, three RC Colas, two 14-ounce containers of rocky road ice cream. His priest, who talked to Moorman before he was executed, and did not condone the death penalty, and said that Moorman was "grateful" for the years they had together to work on his spiritual growth.
Canadian Coalition against the Death Penalty
Death Row Arizona
ESSAYS BY ROBERT MOORMAN
God - Jesus
I hear people ask why does or did God let bad things like that happen and why does He let people like that live.And, where is God,or, there is no God. Why do bad things happen to us or friends,family or others? God gave each person "free will" to choose the path they want to follow.God's path which is hard at times or Satan's path which is easy but leads to no good.God lets us make our own decisions.When bad happens,do you seek revenge over forgiving (letting the person be punished by man)? Revenge is a path to Satan's path.Forgiving the person is the path of God.
We are all children of God.He created us and sent His own Son to teach us and guide us.He died on the cross so that we can all go to Heaven.To forgive is very very hard to do.But it is the right thing to do.To ask to be forgiven is also hard to do,but it needs to be done.Trust in Our Creator's forgiveness and forgive those who have done you wrong.
"Where is God?"" There is no God". Man believes he came from the apes or from goo. Who created the apes or the goo? (God did.)You are God's work every moment of every day.The food you eat,your mate,yourself, the air you breathe.Science has the answers,people say.Who gave us the knowledge to have science? (God.) Who gave us a mind that is like a computer? We see his wonders but still many cannot believe.He is helping them too.He loves us but will not force us to believe in Him.We must want to.That is free will.Satan wants to enslave all God's children to hate,lust,revenge,distrusting etc. God is in each of us and will always love us if we just ask and believe He will forgive us our sinful past.
Each of you has to live his own life.With God's love or by following Satan. I choose to follow God (Jesus)!!
We see hate every day and night and we read about it in our newspapers,on TV and radio.We even speak it to ourselves."I hate that person." "I hate my wife,or children or neighbour" or "I hate that criminal,that child_______,that rapist,that _______murderer."
Why do we hate?Cain brought hate and murder into the world! Hate=murder. I John 3:15 says:Whosoever hateth his brother(all people are our brothers)is a murderer and you know that no murderer has eternal life abiding in him (King James version).The Good News Catholic Bible says :Those that hate others are murderers,and you know that murderers do not have eternal life in them.Cain hated his brother Abel;that hate grew into murder.So hate is a form of murder. When you let hate get into your heart and soul,you are turning to Satan's side and letting him control your life.He wants you to hate.So your heart turns against all those things that God (Jesus )has been teaching us through his word.
Hate is easy to do.It does not need to be an action of murder that turns you into a murderer.It is the feeling of hate,speaking hate,writing of hate.This turns you into a murderer.Yes,people who do wrong do need to be punished,but your hate turns you into a criminal in the sight of God. We need to stop hate in all forms,to open our hearts to caring,forgiving,loving each other.Yes,that means even to care,love and forgive all prisoners even if you were a victim.Care,forgive,but do not hate! Hate turns your heart from God and turns you into a murderer in the sight of God.Let's love one another as God loves us.Forgive others as He has forgiven you. Love=God Hate= Satan. LOVE ONE ANOTHER
For many years I have heard people blaming others for their problems or for being in prison etc.Yes even I blamed others.It is easier to blame someone else for all the problems we have,troubles we get into,rather than take responsibility for out own acts and problems. Yes there are those who have hurt you in some ways but it is wrong for you to do something to another over what was done to you.Some people can overcome the pain of what was done to them and do good! Then there are those who use the pain caused to them to strike out(do different crimes,some are very sick ones)and don't feel guilty or sorry inside for what they have done,but still blame others when they are caught.These people make it hard on all abused hurt people.
There are those who strike out at others,some are innocent people and others are guilty of causing pain to the person.These need help but can't accept that they need help.They blame those who hurt them and do the same things,and sometimes even worse things to others. There are people who do accept responsibility for their actions,but who condemn those who cannot do the same.They say things like "most people who are abused and hurt don't abuse others or do crimes.I was abused,hurt and I don't do crimes".They say that blaming others,or drugs,is only an excuse.Yes,many people do and can accept responsibility for their lives. But there are those who can't deal with what was done to them!
Examples: 1)An abused child grows up full of shame,guilt etc.; no one believes what he is saying. Such people strike out for different reasons:one is asking for help in a very sick way,another is doing to others what was done to him or her because no one cares. 2)A woman is raped;she withdraws into herself or turns totally against men and becomes what some call an old maid,or a lesbian or a 100% man-hater,and hurts men and maybe kills too. 3)A person is full of guilt over the death of a spouse,child,parent,friend, and strikes out against those who did the crime or people who look like the attacker,and never accepts the responsibility for his/her actions.
There are others again who cannot accept responsibility for what they did - they blame others for their actions and deeds.They need help in their minds and souls.But it is easier to say:"it's your fault".All this blaming others is an excuse not a reason for the crime.The truth is that many people created the person who did the crime - parents,teachers,doctors,bullies,religious people who turn their backs. In prison a person can change for good or evil - it comes down to how a person handles his inner problems.I have seen good men change into heartless persons because of how they were treated by staff,officers and other inmates,and because they never got the mental and religious help they truly wanted and needed!
But all can be helped,so that each person can accept responsibility for their own life and so that they can become the good person they were made to be! Let's help others and stop condemning others because people blame others or drugs for their actions.Start healing not condemning. Treat people as you would want to be treated if you were in their place
I hear people on TV saying:"When this man dies,we'll have closure," or "when this person is sentenced to prison we'll have closure." What is this magical closure they talk about? When a man or woman dies for killing someone,does that stop the good and bad memories the people have of the person (family member,friend,lover)who was killed? No. Memories of that person will be with you even after the killer is dead or spending time in prison.Closure never really comes!
When a child is abused,the memories will be always with him/her,even after the abuser is gone or dead.That child has no real closure. There are ways to make things better for all concerned - victims,family members,friends,others,yes even the person who committed the act.
1)Forgiveness:Talk to the person who did the act face to face and forgive them as God forgives you. 2)Trust in God.Ask Him to help you and to help the person who did the crime. 3)Always know you're special to many people,and that hate is bad.Revenge is bad. Love -forgiveness- need to be part of the closure;keep loving all people as God loves you.
Turn the pain,anger and hate over to the Lord.Live each day with love and trust.Ask Jesus to open your heart and keep all anger and hate out,and thank Him for his love and care. Closure cannot happen unless you have God in your heart all the way.He loves you and He loves all His children.
Asking For Forgiveness
All people need to ask God to forgive them for their sins.But they also need to ask the person or people they hurt by their action(s) or deed(s). Yes it is very hard to do. Asking for forgiveness is the right thing to do,but it has to come from the person's heart.It will be hard and the person might not accept your asking forgiveness because their deep anger (hatred)won't let them.They might say you're playing a game,or you're just wanting people to be nice to you,or there are many other things they may say or think.You the one asking to be forgiven have to make the first move to heal the pain.Yes,it will never go away (the guilt,the shame)but if you're truly sorry it helps. It is hard to be open and honest - asking a victim or a victim's family member is even harder. God wants you to repent of your sins by talking about them and to ask the ones you hurt to forgive you.God knows if you're truly being honest about your feelings and if you are really sorry. I know how hard it is to ask a family member to forgive you.My cousin Paul and I hadn't talked in over 30 years.Writing him was the hardest thing I have ever done.I was scared he wouldn't accept me, and scared he wouldn't accept what I was saying.He did,and forgave me,and years later another cousin forgave me.
But so many other family members just will not hear me out.(I pray for them and do not have any anger towards them.Because it was me that hurt them.Even as a child I was not easy to get on with.I do love them and pray that some day they can forgive me.) To me,the person who is asking to be forgiven needs to ask God first ,and truly believe in God's love and He will forgive you. And the person being asked to forgive needs to believe in God's love,His mercy,His willingness to forgive sin,and he needs to open his heart and truly try to forgive.It will be the hardest thing he ever did.But it will start a real healing and bring him closer to our Heavenly Father who wants us to forgive those who trespass against us.(The Lord's Prayer).
All of us need faith in God. Forgive those who hurt you, a friend or a family member. Also,ask people you have done wrong to for their forgiveness. We are all sinners and need God's forgiveness. But why should He forgive you if you can't forgive the people who have done harm to you,a friend or a family member. Ask God for help. He answers prayers.
ROBERT MOORMAN'S PEN PAL REQUEST:
Hello, my name is Robert Moorman. I am a death row prisoner in Florence, Arizona. I am 55 years old, born on the 4th of June, 1948. I just want to find some penpals who don't mind writing to a man on death row. I'm 5'10", brown eyes and hair, 195 lbs, like: writing poetry, short stories, to different people all over. Music: country western, rock n' roll, others. No hobbies allowed in this area. TV: Star Trek type shows, talk shows, mysteries etc. Used to like: camping, fishing, hunting, hiking. Death Row inmate since '85. Came to prison in May '72. Will answer all letters, questions. I would love to correspond with any age, and race. I love to write and read.
PLEASE WRITE TO:
Robert Moorman #031293
Arizona State Prison - Eyman
P.O. Box 3400 - SMU 2, 3H26
Florence, Arizona 85232 USA
Wikipedia: List of People executed in Arizona Since 1976
1 Donald Eugene Harding White 43 M 06-Apr-1992 Lethal gas Allen Gage, Robert Wise, and Martin Concannon
2 John George Brewer White 27 M 03-Mar-1993 Lethal injection Rite Brier
3 James Dean Clark White 35 M 14-Apr-1993 Lethal injection Charles Thumm, Mildred Thumm, Gerald McFerron, and George Martin
4 Jimmie Wayne Jeffers White 49 M 13-Sep-1995 Lethal injection Penelope Cheney
5 Darren Lee Bolton White 29 M 19-Jun-1996 Lethal injection Zosha Lee Picket
6 Luis Morine Mata Latino 45 M 22-Aug-1996 Lethal injection Debra Lee Lopez
7 Randy Greenawalt White 47 M 23-Jan-1997 Lethal injection John Lyons, Donnelda Lyons, Christopher Lyons, and Theresa Tyson
8 William Lyle Woratzeck White 51 M 25-Jun-1997 Lethal injection Linda Leslie
9 Jose Jesus Ceja Latino 42 M 21-Jan-1998 Lethal injection Linda Leon and Randy Leon
10 Jose Roberto Villafuerte Latino 45 M 22-Apr-1998 Lethal injection Amelia Shoville
11 Arthur Martin Ross White 43 M 29-Apr-1998 Lethal injection James Ruble
12 Douglas Edward Gretzler White 47 M 03-Jun-1998 Lethal injection Michael Sandsberg and Patricia Sandsberg
13 Jesse James Gillies White 38 M 13-Jan-1999 Lethal injection Suzanne Rossetti
14 Darick Leonard Gerlaugh Native American 38 M 03-Feb-1999 Lethal injection Scott Schwartz
15 Karl-Heinz LaGrand White 35 M 24-Feb-1999 Lethal injection Kenneth Hartsock
16 Walter Bernhard LaGrand White 37 M 03-Mar-1999 Lethal gas
17 Robert Wayne Vickers White 41 M 05-May-1999 Lethal injection Wilmar Holsinger
18 Michael Kent Poland White 59 M 16-Jun-1999 Lethal injection Cecil Newkirk and Russell Dempsey
19 Ignacio Alberto Ortiz Latino 57 M 27-Oct-1999 Lethal injection Manuelita McCormack
20 Anthony Lee Chaney White 45 M 16-Feb-2000 Lethal injection John B. Jamison
21 Patrick Gene Poland White 50 M 15-Mar-2000 Lethal injection Cecil Newkirk and Russell Dempsey
22 Donald Jay Miller White 36 M 08-Nov-2000 Lethal injection Jennifer Geuder
23 Robert Charles Comer White 50 M 22-May-2007 Lethal injection Larry Pritchard and Tracy Andrews
24 Jeffrey Timothy Landrigan Native American 50 M 26-Oct-2010 Lethal injection Chester Dean Dyer
25 Eric John King African American 47 M 29-Mar-2011 Lethal injection Ron Barman and Richard Butts
26 Donald Beaty White 25-May-2011 Lethal Injection Christy Ann Fornoff
27 Richard Lynn Bible 30-June-2011 Lethal Injection Jennifer Wilson
28 Thomas Paul West 19-July-2011 Lethal Injection Don Bortle
29 Robert Henry Moorman 29-Feb-2012 Lethal injection Roberta Maude Moorman
State v. Moorman, 154 Ariz. 578, 744 P.2d 679 (Ariz. 1987). (Direct Appeal)
Defendant was convicted in the Superior Court, Pinal County, Richard N. Roylston, J., of first-degree murder and sentenced to death. Defendant appealed. The Supreme Court, Feldman, V.C.J., held that: (1) police had probable cause to arrest defendant; (2) description in affidavit saved defective warrant from being exploratory warrant; (3) trial court's admission of items not specifically described in affidavit, if erroneous, was harmless; (4) neither prison authorities nor police needed warrant to search defendant's prison living quarters; (5) defendant's equivocal remarks were insufficient to invoke his right to counsel; (6) warning given to defendant adequately conveyed message that he had right to attorney before answering any questions; (7) admission of defendant's confession and other statements was not erroneous; (8) photograph of victim's head was admissible; (9) introduction of slide of decomposed bowel, if error, was harmless; (10) insanity statute was constitutional; and (11) aggravating factors outweighed mitigating factor and justified death sentence. Affirmed.
FELDMAN, Vice Chief Justice.
Defendant, Robert Henry Moorman, challenges both his conviction and his sentence for first degree murder. We have review of this automatic appeal pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. §§ 13–4031 and –4033.
On January 12, 1984, Moorman, an inmate of the Arizona State Prison at Florence,FN1 was released to his 74–year–old adoptive mother, Roberta Claude Moorman, for a three-day compassionate furlough. The two were staying in room 22 of the Blue Mist Motel, close to the prison. The following evening, George Johnson, owner of a pizza restaurant near the motel, told two police officers, Donald Thuesen and Keith Hyland, that Moorman had asked if he could dispose of some “cow guts” in the restaurant's dumpster. Johnson, who had worked at the prison and knew Moorman, was suspicious of Moorman's “guilty look.” Johnson also mentioned to the officers that Moorman had said his mother was ill. FN1. Moorman was serving a term for kidnapping a nine-year-old girl.
Officers Thuesen and Hyland confirmed Moorman's furlough status with prison personnel. They learned that Moorman was staying with his mother at the Blue Mist Motel. After checking several dumpsters and discovering nothing out of the ordinary, at about 11:00 p.m. the officers decided to look in on Moorman and his mother at the motel. Moorman told them that his mother felt better and had left earlier that evening with a friend, whom Moorman did not know. He told the officers that he did not know where his mother was, and that he was growing concerned. Moorman invited the officers into the motel room, which had a medicinal smell. Thuesen and Hyland also spoke with the motel owner, who thought he had seen Mrs. Moorman around 6:00 p.m. Because this latter information was consistent with Moorman's statements, the officers did not then think anything was out of line with Moorman's story.
Thuesen and Hyland informed their superior, Captain Terry Horrall, that Mrs. Moorman was missing. They unsuccessfully searched for her. At about 1:00 a.m. on the 14th, Thuesen and Hyland returned to the motel and parked. Moorman came out of the room and told the officers that his mother had not returned and that he was worried about her because she had not taken her blood pressure medicine. Captain Horrall and another officer arrived and Moorman brought them into his room to show them his mother's medicine. The officers noticed small, brownish-red spots on the floor and wall; the floor appeared wet. During the conversation, Moorman told Horrall a different story from the one he had told Thuesen and Hyland earlier. He now said that his mother had asked him to purchase a knife as a gift for someone, and when he returned, she was gone. Horrall questioned Moorman about the “cow guts” and Moorman said that a cousin had given them to him and that he had flushed them down the toilet.
The police left Moorman's room around 1:20 a.m. Horrall told Thuesen and Hyland to keep the room under surveillance. About fifteen minutes later, Moorman left the room to use a pay telephone. At that time, according to police logs and testimony, Horrall instructed Thuesen and Hyland not to let Moorman back into the room. The police logs say that the instruction was to “secure” Moorman. There was some confusion at trial whether Horrall's command came seven minutes before or immediately after the police learned that a prison employee, at Moorman's request, had picked up a box of “dog bones” from Moorman shortly after midnight.
After receiving the instruction to secure Moorman, Thuesen asked Moorman if he wanted to sit in the police car with the officers and wait for his mother. Moorman got into the car. Shortly after 2:30 a.m., two prison authorities arrived and, out of Moorman's hearing, told Thuesen and Hyland that the box retrieved from the prison contained human body parts. Thuesen then told Moorman that he was under arrest for suspicion of murder.
At trial, Moorman admitted that he had killed his mother, but claimed that he was not guilty by reason of insanity. See A.R.S. § 13–502. A jury rejected Moorman's insanity defense and convicted him of first degree murder. A.R.S. § 13–1105. The trial court sentenced him to death. A.R.S. § 13–703. Moorman contends that his conviction should be overturned and that he should receive a new trial for seven reasons:
1. Post-arrest incriminating statements and a confession should have been suppressed because the police lacked probable cause to arrest. 2. Evidence seized from his motel room should have been suppressed because the search warrant did not list the items to be seized. 3. Evidence seized without a search warrant from Moorman's former living quarters at the prison should have been suppressed. 4. Statements and physical evidence taken at the police station should have been suppressed because Moorman was denied his right to counsel and because the statements were involuntary, unknowing, and unintelligent. 5. Irrelevant and unduly prejudicial photographs should not have been admitted. 6. A.R.S. § 13–502(B) (Supp.1986) is unconstitutional because it: a. requires a defendant to prove insanity by “clear and convincing” evidence; b. places the burden of proving insanity upon a defendant; and c. usurps the rule-making powers granted exclusively to the Arizona Supreme Court. 7. The trial judge erred in complying with defendant's request that the jury not be instructed on lesser-included offenses.
In addition, Moorman claims that the trial court improperly sentenced him to death because it impermissibly found several aggravating factors and should have found other mitigating factors. We address each of these issues in turn.
I. PROBABLE CAUSE TO ARREST
Moorman contends that he was arrested without probable cause at 1:35 a.m. on Saturday, January 14, when Officers Thuesen and Hyland asked him to sit with them in the police car. Moorman argues that the fruits of his illegal arrest—statements and other evidence used against him—should have been suppressed. See Taylor v. Alabama, 457 U.S. 687, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). The trial court admitted the evidence on the ground that, regardless whether Moorman was under arrest at 1:35 a.m., the police had probable cause to arrest him at that time. On appeal, the state contends that we need not reach the probable cause issue because there was no arrest until 2:37 a.m., when Thuesen and Hyland learned that the bones at the prison were human and formally placed Moorman under arrest.
Like the trial court, we find it unnecessary to decide whether Moorman was formally arrested at 1:35 a.m., because we believe the police had probable cause to make an arrest at that time. The police have probable cause to arrest when reasonably trustworthy information and circumstances would lead a person of reasonable caution to believe an offense has been committed by the suspect. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); Brinegar v. United States, 338 U.S. 160, 175–76, 69 S.Ct. 1302, 1310–11, 93 L.Ed. 1879 (1949); State v. Nelson, 129 Ariz. 582, 586, 633 P.2d 391, 395 (1981). Moorman contends that this test was not met. See State v. Edwards, 111 Ariz. 357, 529 P.2d 1174 (1974).
We agree with the trial court that the police had probable cause to arrest Moorman when Horrall instructed Thuesen and Hyland to secure him. At that time, the police knew the following information: Moorman was a convicted felon on weekend furlough. At 1:30 a.m., Moorman's 74–year–old mother could not be found in Florence, a relatively small town. Moorman had asked Johnson if he could dispose of some “cow guts” in the restaurant's dumpster. Moorman told Johnson that his mother was ill. Johnson, who knew Moorman, believed something was wrong. When the officers first checked with Moorman, his explanations were inconsistent with the story he had told Johnson. The police noticed small reddish-brown spots and the floor appeared wet in Moorman's hotel room. The police knew Moorman had purchased a knife. The room smelled medicinal. Moorman later told the police two different stories about his mother's absence. Neither story was persuasive. Moorman told Horrall an incredible and chilling story about flushing cow guts given to him by a relative down the toilet.
We think these pieces together add up to more than mere suspicion. The police did not need to find the remnants of the body before having probable cause to arrest. Brinegar, 338 U.S. at 175–76, 69 S.Ct. at 1310–11. Under these facts, the trial court was correct in finding that the police had probable cause to arrest.
II. SEARCH WARRANT
Officer Horrall did not correctly complete the portion of the search warrant on which the items to be seized should have been listed. Consequently, the warrant itself contained no description of the items to be seized. Moorman contends, therefore, that the warrant was a general or exploratory warrant, condemned under the federal and state constitutions and state law. E.g., Berger v. New York, 388 U.S. 41, 58, 87 S.Ct. 1873, 1883, 18 L.Ed.2d 1040 (1967); Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965); A.R.S. § 13–3913 (search warrant must particularly describe the property to be seized and the place to be searched).
A defective description in the warrant may be saved by an adequate description in the affidavit. 1 W. LaFAVE & J. ISRAEL, CRIMINAL PROCEDURE § 3.4, at 229 (1984). In this case, the affidavit listed the items to be seized as “pillow case used to suffocate victim, knives, receipts, blood stains, victims [sic] identification and any other evidence.” For an affidavit to save a defective warrant, it must appear at a minimum that the executing officer had the affidavit with him and referred to it; some courts also require that the affidavit be physically connected to the warrant and that the warrant expressly refer to the affidavit. Id.; cf. State v. Woratzeck, 130 Ariz. 499, 501–02, 637 P.2d 301, 303–04 (App.1981).
Captain Horrall filled out the affidavit for the search. The justice of the peace signed both the warrant and the affidavit. The warrant referred to the items to be seized as “such being more fully described in the affidavit.” Horrall executed the warrant and was present during the search. He took both documents to the scene of the search, although he cannot remember whether they were physically attached. Morris Reyna, Jr., chief medical-legal investigator for the forensic science section of the University of Arizona, examined both documents before searching the room. Under these facts, where the warrant referred to the affidavit, the two documents were kept together during the search, and the investigating officer saw them both, we believe that the description in the affidavit saved the defective warrant from being an exploratory warrant. This type of technical mistake does not require suppression. See Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984).
At trial, Moorman argued that the warrant was fatally overbroad on its face and, additionally, was executed as if it were a general or exploratory warrant. He has not clearly repeated these arguments on appeal. Nonetheless, we have considered them because of our duty to search the record for fundamental error.
The affidavit as incorporated in the warrant gave the police license to search for a pillow case, knives, receipts, blood stains ... “ and any other evidence ” (emphasis added). Vague, open-ended phrases such as this are constitutionally permissible only if restrictively interpreted to authorize a search for and seizure of evidence relating to the specific crime for which the individual is suspected. See Andresen v. Maryland, 427 U.S. 463, 479–83, 96 S.Ct. 2737, 2748–49, 49 L.Ed.2d 627 (1976). But see State v. Robinson, 139 Ariz. 240, 677 P.2d 1348 (App.1984). Therefore, the language of the affidavit/warrant itself did not render the warrant or the search defective.
In this case, however, the police apparently interpreted the phrase “and any other evidence” literally; they seized hundreds of items from room 22, including ballpoint pens, toothbrushes, toothpaste, a Diet Coke can, an unopened package of American cheese, and pencils. Reviewing the list of items seized from the motel room, it appears that the police took everything not physically attached to the room, whether described in the affidavit or not and whether relevant or not. Reyna, the person who led the search, testified that he wanted to dismantle the toilet bowl, but the Florence police would not let him because the department might be responsible for repair.
We believe the breadth of the search raises substantial questions. The trial court ruled that the search warrant was overbroad, and only allowed the state to bring in items specifically listed in the affidavit. See Waller v. Georgia, 467 U.S. 39, 43 n. 3, 104 S.Ct. 2210, 2214 n. 3, 81 L.Ed.2d 31 (1984) (only those items seized unlawfully pursuant to a valid search warrant should be suppressed); Andresen, 427 U.S. at 483–85, 96 S.Ct. at 2749–50.
The record is fuzzy, but it seems that the trial court also admitted several items not specifically listed in the affidavit ( e.g., articles of clothing, a plastic drinking cup). None of these items was significant to the state's case and the defense did not specifically object to their admission. The court stated that it was willing to admit items not specifically described in the affidavit on the basis that the police had entertained a reasonable, good faith belief that their conduct was proper. See A.R.S. § 13–3925. Even assuming the validity and existence of a good-faith exception to an overbroad warrant, its application to a search as overbroad as this is debatable.FN2 However, we need not reach this alternative basis for admission because the admission of these items, if erroneous, undoubtedly was harmless error given the tremendous volume of evidence available in this case and the defendant's admission that he killed his mother. See State v. Mincey, 130 Ariz. 389, 403, 636 P.2d 637, 651 (1981), cert. denied, 455 U.S. 1003, 102 S.Ct. 1638, 71 L.Ed.2d 871 (1982), on later appeal, 141 Ariz. 425, 687 P.2d 1180, cert. denied, 469 U.S. 1040, 105 S.Ct. 521, 83 L.Ed.2d 409 (1984).
FN2. The cases in which police permissibly broadened the scope of a warrant through the “plain view” doctrine are not inconsistent. See Andresen, supra; Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Scigliano, 120 Ariz. 6, 583 P.2d 893 (1978). In those cases, the courts allowed the police to seize incriminating articles in plain view but not described in the search warrant. The courts did not hold, however, that the police could seize everything in view, whether relevant to any crime or not, as the police did here. Accord 1 W. LaFAVE & J. ISRAEL, supra § 3.4, at 236 ( Coolidge has been interpreted to mean that the police must have probable cause to believe that the object seized is a fruit, instrumentality, or evidence of a crime.)
III. PRISON SEARCH
After Moorman's arrest, prison authorities performed a warrantless search of his living quarters at the Arizona State Prison. During the search, two of Moorman's lockers were unlocked. One of the documents discovered during the search was a forged codicil to Mrs. Moorman's will. The effect of the codicil was to leave her considerable estate to Moorman. The state used this document to show a motive for the murder. Moorman contends that the prison search violated his fourth amendment rights. However, the United States Supreme Court has held that “the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell” because prisoners have no reasonable expectation of privacy. Hudson v. Palmer, 468 U.S. 517, 526–31, 104 S.Ct. 3194, 3200–02, 82 L.Ed.2d 393 (1984). Therefore, neither prison authorities nor police needed a warrant to search Moorman's cell or, in this case, dormitory-like area. FN3. Moorman urged this court to recognize a “penumbral” first and ninth amendment right of privacy for the legal and personal documents and papers of prison inmates. See Appellant's Opening Brief at 9. We do not address this argument.
Defendant claims also that the evidence should have been suppressed because prison authorities violated the prison's regulations when they conducted the search. Even if true, suppression is not the remedy for a rules violation. State v. Bishop, 137 Ariz. 361, 363, 670 P.2d 1185, 1187 (App.1983).
After the police formally arrested and handcuffed Moorman, but before they had read Moorman his Miranda rights, Moorman said to Thuesen and Hyland, “I wonder if I need an attorney. I will leave it up to you guys if I need an attorney.” Both officers heard this, but neither responded. They left Moorman in the car and were speaking with someone from the prison when Moorman called them over and stated that he wanted to make a full confession. At some point, Thuesen contacted Chief Rankin, told him Moorman was confessing, and asked the chief if he should read Moorman his Miranda rights. Rankin told Thuesen not to give the rights because Moorman was not being interrogated. The officers then told Moorman that they would hear his confession when they arrived at the police station. As they were driving him to the station, at 2:53 a.m., Moorman said, “You can change the charge. She's dead.” The officers had not asked Moorman any questions and had not read him Miranda rights.
At 3:12 a.m., at the police station, Moorman was “Mirandized.” The police again read Moorman his rights before he gave a taped confession. At the end of the taped confession, Moorman identified the dumpsters in which the police would find other body parts. Then, at 4:44 a.m., Moorman requested an attorney. Police Chief Tom Rankin said efforts were made to get an attorney; meanwhile, Moorman was held at the police station. At 6:40 a.m., Reyna arrived to examine Moorman's clothes and take fingernail scrapings. Moorman still did not have an attorney. While Reyna was gathering evidence but not discussing the crime, Moorman pointed to spots on his pants and said they were his mother's blood. This statement was the only one suppressed by the trial court.
These facts raise several issues. First, did the police deny Moorman his right to an attorney when they ignored his initial inquiry about an attorney? When Moorman made this statement, he was under arrest but he was not being interrogated, one of the prerequisites for giving Miranda rights. See 1 W. LaFAVE & J. ISRAEL, supra § 6.2, at 448. Thus, the question arises whether Moorman even was entitled to an attorney at that time. We need not reach that issue, however, because even if the police had read Moorman his rights and were proceeding to interrogate him, his equivocal remarks were insufficient to invoke his right to counsel. See State v. Linden, 136 Ariz. 129, 664 P.2d 673 (App.1983) (citing cases).
Second, Moorman contends that the Miranda warnings he was given were inadequate because they did not inform him that he could have an attorney appointed for him before being questioned. Instead, according to Moorman, the warnings gave the impression that he could have an attorney appointed if he had any questions after the initial interrogation by the police. The record does not contain the substance of the first Miranda warnings. The second set was transcribed from the taped confession:
Officer Thuesen: You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer and have him present with you while you are being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you for any questions if you wish. (emphasis added). Police are not required to use the precise language contained in the Miranda opinion. See California v. Prysock, 453 U.S. 355, 101 S.Ct. 2806, 69 L.Ed.2d 696 (1981). Nonetheless, the warning must inform the defendant that the right to counsel exists before and during interrogation; the warning must not convey the message that appointed counsel cannot be made available until some future time. 1 W. LaFAVE & J. ISRAEL, supra § 6.8, at 516–17. In our view the warning given adequately conveyed the message that Moorman had the right to an attorney before he answered any questions.
Third, Moorman contends that to elicit additional incriminating statements, the police detained him at the station after he had requested an attorney. See, e.g., State v. Emery, 131 Ariz. 493, 642 P.2d 838 (1982). The record shows that nothing Moorman said after 4:44 a.m. was admitted. The trial court suppressed the statement to Reyna. Of course, the trial court was not required to suppress physical evidence collected by Reyna because that evidence was nontestimonial. See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).
Furthermore, we find nothing in the record that would suggest that Moorman's confession and other statements were involuntary, unknowing, or unintelligent.FN4 The police twice read Moorman his rights; Moorman said he understood them and wanted to confess. There was no evidence of police misconduct or coercion. See Arizona v. Mauro, 455 U.S. 1003, 107 S.Ct. 1931, 95 L.Ed.2d 458 (1987); Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986); Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). Accordingly, we hold that the trial court did not err in admitting the confession and other statements. FN4. Defendant did not argue that his mental state or low intelligence made his statements involuntary, unknowing, or unintelligent, and we found no evidence of this in the record.
Moorman contends that the trial court abused its discretion in admitting a photograph of the victim's head and a slide showing the left side of the victim's pelvis with green loops of decomposed bowel. See Rule 403, Ariz.R.Evid., 17A A.R.S.; State v. Chapple, 135 Ariz. 281, 288–90, 660 P.2d 1208, 1215–17 (1983). To determine whether the trial court abused its discretion, we first consider whether the exhibits were relevant to an issue in the case. State v. Castaneda, 150 Ariz. 382, 391, 724 P.2d 1, 10 (1986). Photographic evidence is relevant if it aids the jury in understanding the issue. State v. Day, 148 Ariz. 490, 497, 715 P.2d 743, 750 (1986). However, relevancy is not the sole test of admissibility. If the offered exhibit is of a nature to incite passion or inflame the jury, the court, keeping in mind the purpose of the offer, must go beyond relevancy and consider whether the probative value of the exhibit outweighs the danger of unfair prejudice created by admission of the exhibit. Chapple, supra; Castaneda, supra. We have identified various purposes for which photographs may be admitted: to prove corpus delicti, to identify the victim, to show the nature and location of the fatal injury, to determine the degree of the crime, to corroborate state witnesses, to illustrate or explain testimony, and to corroborate the state's theory of how and why the homicide was committed. Castaneda, supra. However, if the photographs have no tendency to prove or disprove a contested issue in the case, they have little use or purpose except to inflame and ordinarily are inadmissible. Chapple, supra.
In this case, the state agreed that it would not introduce the photograph of the victim's head if the defendant would stipulate to her identity. Because the defendant refused to so stipulate, the trial court allowed the state to admit one of four photos of the head. While we agree with the defendant that the state had other, less prejudicial ways to show the victim's identity, in our view the defendant brought the admission of this photograph upon himself.
According to the record, the state offered the slide showing the decomposed bowel (Exhibit 83) to show “the meticulousness of the dissection.” While we can find purposes for most of the other nine slides, we do not understand the relevancy of this slide. The defendant admitted dismembering the body. The meticulousness of the dissection, in our view, is only marginally relevant to Moorman's state of mind when he suffocated the victim. Meticulous performance of senseless acts is as likely to be a symptom of insanity as of sanity. However, even if the admission of Exhibit 83 were error and an abuse of discretion, we are convinced that it was harmless. Given the volume of properly admitted evidence in this case, we are certain beyond a reasonable doubt that the jury would have convicted even if it had not seen Exhibit 83. See Chapple, 135 Ariz. at 297, 660 P.2d at 1224.
VI. INSANITY STATUTE
Defendant claims that the insanity statute, A.R.S. § 13–502 (Supp.1986), is unconstitutional because it places the burden of proving insanity upon the defendant and because the defendant must prove insanity by clear and convincing evidence. The United States Supreme Court has long held that a state constitutionally may require a defendant to carry the burden of proving insanity beyond a reasonable doubt. Leland v. Oregon, 343 U.S. 790, 798, 72 S.Ct. 1002, 1007, 96 L.Ed. 1302 (1952). See also Martin v. Ohio, 480 U.S. 228, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987). We recently rejected a defendant's argument that the statute is unconstitutional because it violates the separation of powers doctrine. See State v. Fletcher, 149 Ariz. 187, 191–93, 717 P.2d 866, 870–72 (1986). We see no need to reconsider that analysis.
VII. LESSER–INCLUDED OFFENSE INSTRUCTION
While the parties were discussing jury instructions, the trial judge said he was inclined to give the jury an option of convicting Moorman of second degree murder or manslaughter instead of first degree murder. See Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980); Vickers v. Ricketts, 798 F.2d 369 (9th Cir.1986), cert. denied sub nom. Ricketts v. Vickers, 479 U.S. 1054, 107 S.Ct. 928, 93 L.Ed.2d 980 (1987). In response, Moorman's attorney said he and his client had discussed the matter and decided that they wanted the jury instructed only on first degree murder. Moorman was not present when this record was made. In his brief on appeal, Moorman claims that he does not recall any discussion of lesser-included offenses or any agreement with his lawyer on the issue. Moreover, Moorman contends that even if he objected to the giving of lesser-included instructions, the trial court had an obligation to give the instructions under Beck v. Alabama.
We need not review the record in depth to determine whether the evidence supported the lesser-included instructions. We see no reason why a murder defendant cannot knowingly waive his constitutional right to lesser-included instructions. Apparently, the decision not to request instructions on second degree murder or manslaughter was strategic. We have no evidentiary record on Moorman's claims that his attorney never discussed the matter with him. We therefore do not decide that issue.
VIII. DEATH SENTENCE
The trial court found that the state had proved three aggravating factors beyond a reasonable doubt: Moorman previously had been convicted of an offense punishable by life imprisonment or death; the offense was committed for pecuniary gain; and the offense was committed in a heinous, cruel, or depraved manner. A.R.S. § 13–703. Moorman argues that the trial court erred in finding the third aggravating factor because there was insufficient evidence that the victim's bruises and puncture marks were inflicted before her death. In making this finding, the judge said: I am referring to the treatment of the victim before the death by suffocation. I am not referring to the suffocation nor to the dismemberment of the body but rather I am referring to the tissue of the victim, the lacerations that were testified to by the medical examiner, and the bruising and marks that were testified to by the medical examiner.
We have reviewed the evidence and we find that it supports this finding. The medical examiner showed slides of predeath bruises on Mrs. Moorman's face, breasts, legs, and buttocks. He stated that the victim most likely was awake when some of the wounds were inflicted. In his confession to the police, Moorman said that he and the victim were arguing, and that he tied her up, hit her, and suffocated her. Accordingly, we find that the state proved this aggravating factor beyond a reasonable doubt.
We also agree with the trial court that the state proved the two other aggravating factors beyond a reasonable doubt. On balance, the one mitigating factor—Moorman's “significant impairment”—found by the trial court to be a mitigating circumstance, did not outweigh the aggravating circumstances. With regard to proportionality, the facts speak for themselves. Matricide is above the norm of first degree murders, and Moorman's conduct places him above the norm of first degree murderers. State v. Correll, 148 Ariz. 468, 485, 715 P.2d 721, 738 (1986).
We have searched the record for fundamental error. A.R.S. § 13–4037. Finding none, the judgment of conviction and the sentence of death are affirmed. GORDON, C.J., and CAMERON and HOLOHAN, JJ., concur. MOELLER, J., did not participate in the determination of this matter.
Moormann v. Schriro, 426 F.3d 1044 (9th Cir. 2005). (Habeas)
Background: Following affirmance on appeal of defendant's conviction for first degree murder and imposition of the death penalty, 744 P.2d 679, defendant filed petition for writ of habeas corpus. The United States District Court for the District of Arizona, Roslyn O. Silver, J., denied petition, and appeal was taken.
Holdings: The Court of Appeals, Schroeder, Chief Judge, held that: (1) habeas petitioner was provided a full and fair opportunity to litigate the validity of search warrant; (2) evidence was sufficient to support state court's finding that defendant murdered his adoptive mother for pecuniary gain, an aggravating factor under Arizona law; (3) evidence was sufficient to support state court's finding that defendant's murder of his mother was especially cruel, an aggravating factor under Arizona law; (4) appellate counsel's failure to challenge trial counsel's failure to argue that the death sentence was disproportionate to defendant's crime was a reasonable tactical choice, and thus did not amount to ineffective assistance of counsel; and (5) claims that this trial counsel was ineffective because he called only one expert witness to support insanity defense and failed to provide that witness with critical information on petitioner's background were not reviewable on federal habeas review. Affirmed in part, vacated in part, and remanded.
SCHROEDER, Chief Judge.
Robert Henry Moormann was convicted in Arizona of the first degree murder of his elderly adoptive mother and sentenced to death in 1985. This is an appeal from the district court's denial of his first federal petition for habeas corpus relief. He earlier filed two unsuccessful state petitions for collateral relief after losing his direct appeal from the conviction and sentence in state court.
We heard oral argument in this case in November 2001. We then deferred submission pending the Supreme Court's decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). In Ring, the Court decided that the Arizona sentencing scheme applied in this case, in which the trial judge alone determined the presence or absence of aggravating factors required by Arizona law for the imposition of the death penalty, was not compatible with the Sixth Amendment. 536 U.S. at 589, 122 S.Ct. 2428. We again deferred submission pending the outcome of other cases with priority that determined the retroactivity of Ring. See Pizzuto v. Arave, 280 F.3d 949 (9th Cir.2002); amended by 385 F.3d 1247 (9th Cir.2004); aff'd 385 F.3d 1247 (9th Cir.2004); Summerlin v. Stewart, 341 F.3d 1082 (9th Cir.2003) (en banc); rev'd sub nom. Schriro v. Summerlin, 124 S.Ct. 2519, 542 U.S. 348, 159 L.Ed.2d 442 (2004). Subsequently, the Supreme Court held that Ring is not retroactive to cases on habeas corpus review. Schriro v. Summerlin, 124 S.Ct. at 2526. Thus, Ring ultimately does not affect the current appeal. Given the length of time that had passed since oral argument, we then gave the parties an opportunity to file supplemental briefs. We have received and considered those briefs and this case can now be decided.
In order to set the legal framework for our decision, we first determine that the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) do not apply to this case. See 28 U.S.C. § 2244 et seq. Chapter 153 of AEDPA, dealing with general habeas corpus petitions, does not apply to cases which were pending at the time AEDPA became effective. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997) ( “[T]he new provisions of chapter 153 generally apply only to cases filed after the [Antiterrorism and Effective Death Penalty] Act became effective.”). Moormann filed his initial habeas petition in July 1991, and an amended petition in September 1993, both well before AEDPA's effective date of April 24, 1996. Id. at 322, 117 S.Ct. 2059. The provisions of chapter 154, dealing with special habeas corpus proceedings in capital cases, do not apply unless a state “opts in” by establishing a statute or court rule for the appointment and compensation of competent counsel in state post-conviction proceedings brought by indigent capital prisoners. See 28 U.S.C. § 2261(b). It is undisputed that Arizona has not “opted in.” Thus, neither the general nor the capital case provisions of AEDPA apply to this case.
The parties, as is to be expected under the our pre-AEDPA capital habeas jurisprudence, devote a great deal of time to discussing whether Moormann's various claims can be considered in federal court, or whether they have been forfeited by his failure to bring them in state court, or by his having presented them in a manner that invokes state procedural bars to their consideration by the state supreme court. See Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995). Although we affirm the district court's dismissal of most of the claims, we observe that some of Moormann's federal claims were never properly litigated in state court, but were handled by counsel with a conflict of interest. Moormann thus presents some claims of ineffective assistance of appellate counsel that appear colorable on this limited record. We therefore vacate the district court's judgment and remand for further proceedings on those claims.
The facts are set out in all their lurid detail in the Arizona Supreme Court's opinion on direct appeal. State v. Moorman, 154 Ariz. 578, 744 P.2d 679 (1987). Moormann appeals his conviction for the murder of his adoptive mother during a furlough from state prison. Moormann was apprehended after his strange and inconsistent behavior came to the attention of the local police. In January 1984, Robert Moormann was incarcerated in the Arizona State Prison in Florence, Arizona, serving a sentence of nine years to life for kidnapping. Moormann's adoptive mother, Roberta, then age 74, traveled by bus on Thursday, January 12, to visit with Moormann during a 72-hour furlough. They checked into the Blue Mist Motel in Florence.
At about seven a.m. the next morning, Friday, January 13, 1984, Moormann called Marianne Southworth, the friend who had brought Roberta to the prison from the bus depot, and told her that when she came to the motel that afternoon, he would like her to take him to Mesa so that he could see a lawyer. Sometime between six and seven-thirty a.m., Moormann walked to a store where he purchased a buck knife, a steak knife, and some food. Shortly after eight a.m., Moormann went to a local pizza parlor owned by a former prison guard, where he bought a soda. He told the owner that he was on furlough with his mother, that she was not feeling well, but that they would come back that evening for dinner.
At about nine a.m., Moormann went to the front desk of the Blue Mist and asked the owner to hold both maid service and phone calls because his mother was ill. At around this time, he also approached the owner's wife, asked her not to come to the room because his mother was sick, and asked to borrow some disinfectant spray. She testified that Moormann smelled horrible, that he had some blood on his face, and that some towels he later left outside his room smelled so bad that she threw them away.
When Roberta's friend, Marianne Southworth, arrived that afternoon with Roberta's suitcase, Moormann told her that his mother had been gone since he returned from getting her a salad at ten that morning. Moormann also said that his mother had asked him to dispose of some garbage bags. Marianne refused to help dispose of the bags. She noticed that Roberta's purse was still in the motel room and that the room was extremely cold because the air conditioning was turned up all the way. At around four p.m., Moormann called Marianne at her home and asked whether his mother had called.
At about four-thirty p.m., Moormann approached the motel owner and asked him whether the garbage would be collected the next morning. When the owner told Moormann that the garbage would not be collected until Monday morning, Moormann explained that his mother had bought some meat that spoiled and he needed to throw it out. During the evening, Moormann asked a liquor store clerk and the pizza parlor owner whether he could dispose of spoiled meat or animal guts in their dumpsters. Both refused.
Acting on a tip from the suspicious pizza parlor owner, two Florence police officers went to the Blue Mist at around ten-thirty, where they knocked on Moormann's door and explained that they had heard his mother was ill and they wanted to check on her welfare. Moormann told them that his mother had been sick that morning but, after feeling better, had gone visiting with a Mexican woman at about six p.m. He said that he had not heard from her since, and that he was very worried. Moormann was wearing only a pair of unzipped trousers and a belt.
The officers looked in the motel's dumpsters, but did not see anything suspicious. They left the motel and went to the prison, where they got a partial description of Roberta. They then returned to the motel, where they parked in front of Moormann's room. About five minutes later, Moormann came out of his room and approached the police car. The officers asked if his mother had returned, and when he said no they asked him for a physical description of his mother.
Moormann expressed concern that his mother had not returned because she had not taken her medication with her. When two other officers arrived at the motel a few minutes later, he insisted on taking them into the room to show them his mother's medication. Moormann told the officers that his mother had sent him to the U-Totem to buy a knife for her to give to a friend, and that when he returned his mother was gone. This version of events contradicted his earlier story. Moormann also told one of the officers that a friend had given him some cow guts, that he had been trying to get rid of them, and that he had eventually flushed them down the toilet.
Sometime between ten-thirty and eleven p.m., Moormann asked a corrections officer, whom he encountered in the motel parking lot, where he could dispose of twenty-five pounds of spoiled hamburger meat that his parents had brought with them. The officer suggested that he call the officer in charge of his unit at the prison. At twelve-twenty a.m. on Saturday the 14th, Moormann called the lieutenant in charge of his prison unit and asked for help. He said that his cousin had dropped off some dog bones a couple of days earlier and that he needed to get rid of them and some other stuff, that his mother was out visiting, and that the dumpster at the motel was full. The lieutenant agreed to help and came by about ten minutes later. Moormann put a box in the bed of the lieutenant's truck. He then asked for a ride back to the prison so that he could get something out of his living quarters. The lieutenant refused, returned to the prison and put the box, in which he could see some clean bones, out by the dumpster. At around one-thirty a.m., when he received a call from the police saying that Moormann had been acting suspiciously, asking to throw out spoiled meat, and that Moormann's mother was apparently missing, the lieutenant told the police about the box he had picked up. He and a policeman opened the bags in the box and found what looked like human bones and tissue. The policeman took the box to a hospital for analysis.
After their second conversation with Moormann, the officers went back to their car to wait. Moormann came out of his room about fifteen minutes later, around one-thirty a.m., and crossed the parking lot to the public telephone. The officers called this activity in to the police captain, who told the officers not to let Moormann go back into his room. The officers drove their car back to the front of Moormann's room and asked him if he would like to wait in the car for his mother to come back. When he said yes, one of the police officers offered him the front passenger seat and went to sit in the back seat. For about an hour and fifteen minutes, Moormann sat in the car, dozing off and occasionally conversing with the officers. At two-forty-five a.m., two officers from the prison arrived at the Blue Mist and informed the officers that the bones in the box were human.
The officers asked Moormann to get out of the car, hand-cuffed him, and told him that he was under arrest on suspicion of murder. As Moormann was getting back into the car, he said “I wonder if I need a lawyer. I'll leave it up to you guys whether I need a lawyer.” The officers did not reply. Moormann then stated that he wanted to confess. The officers told him to wait, that they were on their way to the police station. About five minutes later, Moormann said “You can change the charge, she's dead.” Moormann told the officers that he had called the prison because he was afraid they might be mad that his mother was not with him, and that he had just “lost his cool” when his mother made him “take his father's place” and “do things he just couldn't handle.” The officers took Moormann to the police station where, after being read his Miranda warning, he confessed to killing his mother and dismembering her body. The full text of the confession is included as an appendix to this opinion.
The police obtained a warrant to search Moormann's room at the Blue Mist, where they found bedding stained with Roberta's blood; towels, a washcloth, and a cooking pot stained with blood; bloodstains on the bathroom walls and floor; a scouring pad with bloodstains and human tissue; and a buck knife and steak knife. They also found Roberta's brassiere hanging in the closet with five hundred dollars in cash safety-pinned to it. In trash dumpsters at and near the motel, the police officers found trash bags containing Roberta's thorax, head, pelvic area, feet and hands, and muscle and skin cut from her limbs as well as torn strips of towel, a razor, the package in which the steak knife was sold, and some pajamas. The police found a finger in the sewer.
A search of Moormann's living quarters in the prison revealed a notebook of bizarre writings, including instructions to train a dog to make bank deposits, a document entitled “last will and testament” that purported to transfer Roberta's estate to Moormann in exchange for shares in his business, and a letter purporting to be from Roberta explaining why she was making the transfer. Roberta's actual will left her entire estate to Moormann, but stated her belief that he was not competent to handle his own affairs and placed the money in trust for his benefit. The executor of Roberta's estate testified that Roberta was planning to move to Oklahoma to be with her remaining relatives in April 1984, which happened to be the next time that Moormann was up for parole.
The medical examiner testified that Roberta had died of asphyxiation as a result of something being held on her face and blocking her air supply. He testified that, between twelve hours and one half-hour prior to her death, she had sustained bruises as the result of moderate force from a fist or blunt object on her left upper arm, both breasts, and on her lower back. He also testified that, between two hours and one half-hour before her death, Roberta was cut by a knife or other sharp, pointed object once on her right breast and five times on her right buttock. The medical examiner found no defensive wounds on Roberta's hands and found no marks indicating that her wrists or ankles were bound. However, her hands had been cut from her wrists and her feet from her ankles, so any such marks may have been impossible to find. The medical examiner did find bruises in and around Roberta's mouth consistent with being gagged. The medical examiner noted that the dismemberment of the body was very meticulous, particularly the cutting off of the hands at the wrist, the feet at the ankles, and then the fingers at the knuckles. The entire process would probably have taken two hours. The medical examiner found no evidence of sexual activity, and tests run on the sheets and bedspread found no evidence of semen. While the medical examiner could determine that Roberta was alive when she was bruised and cut, he could not tell whether she was conscious, but noted that the cuts would have been painful if she was conscious.
Numerous lay witnesses testified that Moormann was odd, that he switched conversational topics frequently and seemed not all there or off in another world. A woman with whom Moormann stayed while he was on parole testified that he would dress normally during the day, but wear only black at night; that he claimed to have ties to the mafia; and that although his mother supported him generously, he was unsuccessful in his business affairs. His parole officer testified that Moormann failed to adjust to the outside world because of frequent fantasies that interfered with daily activities. The parole officer testified that, despite his mother's generous support, Moormann was unable to succeed in business because he was not intellectually capable of success. At the time that Moormann's parole was revoked, his parole officer recommended that he be hospitalized, rather than returned to prison. The parole officer did state, however, that he was never sure whether Moormann was incompetent or whether he was a con man. Many of the people with whom Moormann interacted on that Friday reported statements that Moormann made about his business dealings and family affairs that were untrue. He told the clerk who sold him the buck knife that it was a gift for his son, mentioned his dead father to several people as though he was alive and visiting Moormann on this furlough, and told the liquor store clerk that he was married and that his mother had recently died of cancer.
The defense called one expert witness, Dr. Overbeck, a psychologist who interviewed Moormann for almost ten hours in five sessions, gave him psychological tests, and reviewed his lengthy medical history and school and prison records. Dr. Overbeck concluded that Moormann suffers from organic delusional syndrome, pedophilia, and schizoid personality disorder, and that he was unable to appreciate the nature and consequences of his actions when he killed his mother. Dr. Overbeck also noted that a delusional diagnosis is difficult because it depends on whether or not you believe Moormann's allegations of an incestuous relationship with his mother.
The state called three expert witnesses. Dr. Cleary, a court-appointed expert psychiatrist, diagnosed Moormann as suffering from pedophilia and antisocial personality disorder. Dr. Cleary stated that he did not believe that Moormann was unable to understand and appreciate the nature of his actions, although his subsequent knowledge of Moormann's bizarre writings and some of his statements on the day of the crime made him less certain of his conclusion. Dr. Tuchler, a board-certified forensic psychiatrist who had diagnosed Moormann on four prior occasions beginning in his teens, testified that Moormann does not suffer from organic delusional syndrome. Dr. Tuchler testified that Moormann is a pedophile with anti-social personality disorder, but that he is capable of under-standing the nature of his actions. However, Dr. Tuchler believed Moormann, who told him that he had an incestuous relationship with his mother, that he had sex with her that night, that she wanted her breasts pinched, and that she was making noises and he put a pillow over her face so that he would not hear her. Dr. Tuchler testified that he believed Roberta's death was accidental. Dr. Buchsbaum, a board-certified neurologist who examined Moormann, testified that while he found no evidence of an organic brain defect, he could not rule out the possibility.
After two hours of deliberation, the jury found Moormann guilty of first-degree murder, rejecting his insanity defense. The trial judge received a pre-sentencing report and held a sentencing hearing, at which Moormann's counsel argued that Moormann's inability to fully understand his actions and record of good conduct in prison weighed in favor of a life sentence. The trial judge found three statutory aggravating factors (prior life sentence, pecuniary motive, and cruel, heinous, or depraved murder) and one mitigating factor (diminished ability to understand actions) and sentenced Moormann to death. After an unsuccessful direct appeal to the Arizona Supreme Court and two unsuccessful state post-conviction relief petitions, Moormann filed this federal habeas corpus petition.
There are, from a procedural standpoint, essentially three different categories of claims before us. The first are claims that the district court rejected on the merits after concluding that they had been properly exhausted. We affirm the district court on the merits of those claims. The second are claims that the district court properly refused to hear because of procedural irregularities in presentation to the state court. We affirm the dismissal of those claims. The third category are claims for which we conclude the petitioner has established sufficient cause to excuse the procedural irregularities in presentation to the state court. We vacate the district court's judgment and remand for further proceedings on a limited number of claims falling into the third category.
II. CLAIMS THE DISTRICT COURT REACHED ON THE MERITS
Moormann raised four claims that the district court denied on the merits: whether he was provided a full and fair opportunity to litigate his Fourth Amendment claims; whether the state courts constitutionally applied two aggravating factors in imposing his death sentence; whether his counsel was ineffective for failing to argue proportionality in his direct appeal; and whether the state courts properly considered all mitigating evidence. We affirm the district court's judgment on these issues.
Moormann challenges the validity of the search warrant pursuant to which the Florence police officers searched his hotel room. The Fourth Amendment requires that a search warrant specify the items to be seized with sufficient precision for the person conducting the search to identify the items for which seizure is authorized. United States v. Stubbs, 873 F.2d 210, 211 (9th Cir.1989). The warrant pursuant to which the Florence police searched Moormann's hotel room did not indicate what items were to be seized, but the affidavit supporting the warrant did describe the items in detail. The trial court found that, while the affidavit was not attached to the warrant, the officer who executed the affidavit was present for all material parts of the search. The court therefore admitted all material evidence described in the appropriately limiting affidavit. See Center Art Galleries-Hawaii, Inc. v. United States, 875 F.2d 747, 750 (9th Cir.1989), overruled on other grounds by J.B. Manning Corp. v. United States, 86 F.3d 926, 927 (9th Cir.1996). The Arizona Supreme Court affirmed, relying on these same factual findings and holding that any evidence outside the proper scope of the warrant that the trial court admitted was harmless in light of its insignificance to the case and the overwhelming evidence of Moormann's guilt. Moorman, 744 P.2d at 684-85.
If the state has provided a state prisoner an opportunity for full and fair litigation of his Fourth Amendment claim, we cannot grant federal habeas relief on the Fourth Amendment issue. Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). Moormann contends that he did not have a full and fair opportunity to litigate his warrant challenge because the state court's factual findings are not supported by the evidence. Moormann was provided a full and fair opportunity to litigate his state claims, however. He raised the warrant issue in a pre-trial motion; the trial court held a hearing on the issue at which Moormann was allowed to present evidence and examine witnesses; the trial court made a factual finding, and appropriately limited the admissible evidence to that described in the warrant affidavit; and the Arizona Supreme Court reviewed the trial court's decision. Cf. Abell v. Raines, 640 F.2d 1085, 1088 (9th Cir.1981). The district court did not err in denying Moormann's petition.
Moormann alleges that the state courts did not constitutionally apply certain aggravating factors in the Arizona death penalty statute because the record does not support the finding of those factors. Moormann specifically objects to the state courts' application of two aggravating factors-that the murder was committed for pecuniary gain, and that the murder was particularly cruel, heinous, or depraved. Ariz.Rev.Stat. § 13-703(F)(5), (F)(6).
Federal habeas review of a state court's application of aggravating factors is limited to determining whether the state court's finding “was so arbitrary or capricious as to constitute an independent due process or Eighth Amendment violation.” Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990). We examine whether, “viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 781, 110 S.Ct. 3092 (emphasis in original) (internal quotations and quotations omitted).
Under Arizona law, a finding that a murder was motivated by pecuniary gain for purposes of section 13-703(F)(5) must be supported by evidence that the pecuniary gain was the impetus for the murder, not merely the result of the murder. State v. Kayer, 194 Ariz. 423, 984 P.2d 31, 41 (1999). The evidence presented at Moormann's trial and sentencing hearing was conflicting. Several witnesses testified that Roberta had supported Moormann generously, pouring tens of thousands of dollars into unsuccessful business ventures, and that Roberta was supportive of and had a close relationship with her adoptive son. The police found five hundred dollars in cash undisturbed in Roberta's brassiere, which was found hanging in the closet of the room where she was killed. The executor of Roberta's estate, however, revealed that her will left her estate in trust to Moormann because she believed he was not competent to handle his own affairs, and that Roberta was planning to move to Oklahoma to be with relatives. Moormann's parole officer testified that it would have been possible for Moormann to be paroled to Oklahoma, but only if his mother agreed to be responsible for him there. A search of Moormann's prison living quarters revealed a handwritten document, in a notebook of other writings, entitled “last will and testament.” That forged document purported to transfer all of Roberta's property to Moormann in exchange for two hundred shares of stock in his business. The notebook also contained a letter purporting to be from Roberta to Moormann, explaining why she wanted to make the transfer. A reasonable fact-finder could have found that Moormann murdered Roberta for pecuniary gain.
The (F)(6) aggravating factor, that the murder was committed in an especially cruel, heinous, or depraved manner, is disjunctive, and need only be supported by evidence of one of the three. State v. Hyde, 186 Ariz. 252, 921 P.2d 655, 683 (1996). In this case, the trial and appellate courts seem to have relied upon cruelty, rather than heinousness or depravity. To find cruelty, the court must find beyond a reasonable doubt that the victim was conscious during the attack and that the defendant knew or should have known that the victim would suffer. State v. Trostle, 191 Ariz. 4, 951 P.2d 869, 883 (1997). The Arizona courts have upheld findings of cruelty based on a showing that the victim suffered mental anguish or fear. State v. Wallace, 151 Ariz. 362, 728 P.2d 232, 237 (1986). The medical examiner testified that Roberta had been bruised and cut in the hours before her death, and that these bruises and particularly the larger cuts would have been painful if she was conscious when they were inflicted. The medical examiner was not able to determine whether Roberta was conscious when they were inflicted, nor was he able to find evidence that Roberta's wrists or ankles had been bound. The medical examiner did find bruises in and around Roberta's mouth consistent with being gagged, and the police found strips of bloody, torn towel in the trash bins where Moormann disposed of Roberta's body. In Moormann's confession, he told the police that he and Roberta had argued, that he had hit her during the argument, that he had tied her up, and that she had continued to talk to him while she was tied up until he held a pillow over her face and suffocated her. Moormann also mentioned, in his confession, that he disposed of a razor blade that he had used to cut Roberta. On the basis of this evidence, a rational fact-finder could have found beyond a reasonable doubt that Roberta suffered physical and/or mental anguish before she died. We affirm the district court's denial of Moormann's habeas petition on these sentencing issues.
Ineffective Assistance of Counsel on Direct Appeal in Failing to Present Proportionality Argument
In order to establish that counsel's assistance was sufficiently defective to require reversal, the defendant must show that counsel's performance was deficient and that the deficiency prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Moormann argues that he was prejudiced by his counsel's failure to argue that his death sentence was disproportionate. At the time of Moormann's appeal, the Arizona Supreme Court considered the proportionality of each death sentence as part of its independent review of the propriety of death sentences. State v. White, 168 Ariz. 500, 815 P.2d 869, 884 (1991). This process was so inexact and problematic, however, that the court abandoned it in 1992. State v. Salazar, 173 Ariz. 399, 844 P.2d 566, 583-84 (1992). This alone suggests that Moormann's appellate counsel made a reasonable tactical choice in omitting this argument, particularly given the disturbing nature of Moormann's crime. In addition, the Arizona Supreme Court actually conducted a proportionality review sua sponte as part of its independent review of Moormann's sentence. Moorman, 744 P.2d at 688. Therefore, even if Moormann's counsel was deficient in failing to present proportionality arguments on review, he was not prejudiced by this failure. We affirm the district court's denial of relief on this ground.
Failure to Consider Mitigating Evidence
Moormann also contends that the state courts failed to “consider and give effect to all relevant mitigating evidence” that he offered, in violation of the Eighth Amendment. Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). However, the trial court need not exhaustively analyze each mitigating factor “as long as a reviewing federal court can discern from the record that the state court did indeed consider all mitigating evidence offered by the defendant.” Clark v. Ricketts, 958 F.2d 851, 858 (9th Cir.1991) (citation omitted).
Moormann contends that the trial court failed to consider his ability to adapt to prison life and his childhood and family background. Although Moormann's counsel did not expressly argue that this evidence, which was contained in the trial and sentencing record, constituted mitigation, the trial court explicitly stated that it would consider all evidence presented at trial, in the pre-sentencing report, and at sentencing in rendering its sentencing decision. This court may not engage in speculation as to whether the trial court actually considered all the mitigating evidence; we must rely on its statement that it did so. Smith v. McCormick, 914 F.2d 1153, 1166 (9th Cir.1990).
III. CLAIMS THAT WERE NOT EXHAUSTED AND ARE PROCEDURALLY BARRED
Moormann raised the following claims in his habeas petition, and urges this court to order the district court to address their merits, even though he did not raise them in any of his state court proceedings. These claims are procedurally barred.
Ineffective Assistance of Counsel at Trial
In his habeas petition, Moormann argued that his trial counsel was ineffective because he called only one expert witness to support Moormann's insanity defense, because trial counsel elicited prejudicial information from that witness, and because counsel failed to provide that witness with critical information on Moormann's background. (The district court denominated this claim 12A.) The district court found that this claim had never been presented in state court. Moormann contends that the operative facts of this claim were identified in the trial court, and that he argued in his second petition for post-conviction relief (PCR) his trial counsel's ineffectiveness for presenting his insanity defense through only one expert. Moormann did not claim, in either his direct appeal to the Arizona Supreme Court or in his first PCR, that his counsel was ineffective in presenting the insanity defense. Because Moormann could have presented this claim in those proceedings, Arizona Rule of Criminal Procedure 32.2 barred its review in future state proceedings. Even in his second Rule 32 petition, he failed to establish that there was any available expert witness who could have materially assisted the defense.
Moormann also alleges that his trial counsel was ineffective as a result of: • counsel's refusal to allow Moormann to testify (claim 12D in the district court) • counsel's refusal to stipulate to the victim's identity and the resulting introduction of a photograph of the victim's severed head (claim 12E in the district court) • counsel's failure to object to irrelevant and prejudicial information about the victim (claim 12F in the district court) • counsel's failure to object to prosecutorial misconduct (claim 12G in the district court) • counsel's failure to request a jury instruction that the jury should consider the elements of the crime before considering insanity or to object to the prosecutor's contrary suggestion in closing arguments (claim 12H in the district court)
Moormann contends that the facts of these claims were present in the state record and that they are fundamentally the same as the claims he did present in state court-that his “counsel was ineffective for failing to investigate and present a viable defense.” He does not contend that these more specific claims were presented in any state proceeding, and indeed they were not.
Moormann points out that we have held that, so long as the petitioner presented the factual and legal basis for his claims to the state courts, review in habeas proceedings is not barred. E.g., Chacon v. Wood, 36 F.3d 1459, 1467-68 (9th Cir.1994). This does not mean, however, that a petitioner who presented any ineffective assistance of counsel claim below can later add unrelated alleged instances of counsel's ineffectiveness to his claim. See Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir.1992) (en banc). Rather, this rule allows a petitioner who presented a particular claim, for example that counsel was ineffective in presenting humanizing testimony at sentencing, to develop additional facts supporting that particular claim. See Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir.1999). Moormann did not present these claims of ineffective assistance in state court, and we cannot address them on habeas review.
Ineffective Assistance of Sentencing Counsel
Moormann asserts that his sentencing counsel was ineffective for: • failing to present evidence or argument that Moormann was severely mentally ill and the victim's death was accidental, neither motivated by a desire for pecuniary gain nor cruel, heinous, and depraved (claim 16D in the district court) • failing to object to certain opinions of the victim's family (claim 16E in the district court) • failing to object to the trial court's restriction on mitigation (claim 16F in the district court) • failing to object to information in the pre-sentence report or provide information for the report (claim 16G in the district court)
Moormann contends that the substance of these claims was presented in his first PCR, in his allegation that his counsel failed to represent him adequately at sentencing. Moormann's first PCR claimed that his sentencing counsel was ineffective for failing to call witnesses who would testify to his “character and upbringing” and refusing to allow Moormann to testify in an attempt to mitigate the impact of his prior conviction. These claims were neither covered by the arguments of the first PCR nor asserted in the second PCR. Because these claims were never presented in any state court proceeding, they cannot be addressed by the federal courts. The district court's dismissal of these claims was proper.
Issues Moormann Argues Were Exhausted by Fundamental Error Review
At the time of Moormann's direct appeal, the Arizona Supreme Court was required by statute to review independently the trial record for fundamental errors affecting the judgment and sentence, whether or not the defendant alleged those errors on appeal. Ariz.Rev.Stat. § 13-4035 (1987) (repealed); State v. Brewer, 170 Ariz. 486, 826 P.2d 783, 790 (1992). The Arizona Supreme Court conducted this review in Moormann's case. Moorman, 744 P.2d at 684 (reviewing the validity of the search warrant even though Moormann did not raise it on appeal because of the court's “duty to search the record for fundamental error”). Moormann asserts that this independent review by the Arizona Supreme Court constitutes full and fair presentation of his federal claims and that several of them are therefore not procedurally defaulted.FN1 We have explicitly rejected this argument. Martinez-Villareal v. Lewis, 80 F.3d 1301, 1306 (9th Cir.1996); Poland v. Stewart, 117 F.3d 1094, 1105 (9th Cir.1997). Where the parties did not mention an issue in their briefs and where the court did not mention it was considering that issue sua sponte, there is no evidence that the appellate court actually considered the issue, regardless of its duty to review for fundamental error, and the issue cannot be deemed exhausted.
FN1. Moormann makes this argument with respect to his claims of inadequate jury voir dire (claim 5 below); inadequate, burden-shifting jury instructions on the insanity issue (claim 6 below); prosecutorial misconduct (claim 9 below); and “record-based” ineffective assistance of counsel claims, by which he seems to mean 12B (failure to present alternative defense), 12E (failure to stipulate to victim's identity), 12F (failure to object to irrelevant and prejudicial information about the victim), 12G (failure to object to prosecutorial misconduct), 12H (failure to request correct jury instructions on insanity).
Issues Moormann Argues Were Exhausted by Arizona's Mandatory Independent Review of Death Sentences
At least as of the time of Moormann's direct appeal, the Arizona Supreme Court independently reviewed the propriety of all death sentences, examining the trial court's findings on aggravating and mitigating factors and independently reweighing those factors to determine whether the death sentence is appropriate. State v. Watson, 129 Ariz. 60, 628 P.2d 943, 945-46 (1981). Moormann contends that this independent review served to exhaust the following claims: that his counsel was ineffective at sentencing; that two of the aggravating factors are unconstitutional; that prejudicial information was considered at sentencing; that he was denied a jury trial on facts that increased his sentence; that the Arizona statute fails to adequately channel sentencing discretion; that the Arizona statute contains an unconstitutional presumption of death; that the Arizona statute unconstitutionally mandates a sentence of death; that the death penalty is cruel and unusual punishment; that the Arizona death penalty is discriminatory; that the Arizona Supreme Court failed independently to review and reweigh mitigation and aggravation evidence; and that the death sentence is imposed arbitrarily and capriciously. These issues are not included in the scope of the Arizona Supreme Court's independent review of the death sentence as defined by that court, and therefore were not exhausted.
IV. CLAIMS WHERE PETITIONER HAS SHOWN CAUSE
Moormann was represented by three different attorneys in his state proceedings: Thomas Kelly at trial, Robert Cimino on direct appeal and during his first petition for post-conviction relief (PCR), and Allen Gerhardt during his second PCR. In the first PCR, prepared by Cimino, Moormann alleged a number of errors at trial and sentencing that were not included in his direct appeal to the Arizona Supreme Court. The trial court dismissed Moormann's first PCR for this reason, because Arizona Rule of Criminal Procedure 32.2 bars the assertion, in a PCR proceeding, of any claim that could have been part of a prior proceeding. Cimino then moved the court for the appointment of another attorney who would be able to assert that Cimino was ineffective in failing to raise these issues in the direct appeal. The trial court refused, but did appoint another attorney, Gerhardt, when Moormann filed a second PCR pro se. Gerhardt filed an amended second PCR petition, in which he alleged that Cimino was ineffective for failing to file an adequate motion for reconsideration after the first PCR petition was denied, for failing to appeal denial of the first PCR petition, and for failing to present certain other, specifically enumerated, issues of alleged error at trial and sentencing. The state court denied the second PCR on Rule 32.2 grounds.
Moormann now contends that Cimino could not have argued his own ineffectiveness in the first PCR proceeding, and that the trial court's failure to appoint a new attorney to argue that Cimino's ineffectiveness constitutes cause for the default of those issues Cimino did not raise in Moormann's direct appeal.
A prisoner who fails to comply with state procedures cannot receive federal habeas corpus review of a defaulted claim unless the petitioner can demonstrate either cause for the default and resulting prejudice, or that failure to review the claims would result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). “Cause” must be something external to the petitioner. Id. at 753, 111 S.Ct. 2546. Attorney ignorance or inadvertence is not cause, but attorney error rising to the level of an independent constitutional violation (in the form of ineffective assistance of counsel) does constitute cause. Id. at 753-54, 111 S.Ct. 2546. In several cases, we have rejected arguments similar to Moormann's on the ground that, because there is no Sixth Amendment right to counsel in state post-conviction proceedings, there can be no independent constitutional violation as a result of post-conviction counsel's incompetence. See Ortiz v. Stewart, 149 F.3d 923, 933 (9th Cir.1998); Nevius v. Sumner, 105 F.3d 453, 459-60 (9th Cir.1996); Martinez-Villareal, 80 F.3d at 1306. Moran v. McDaniel, 80 F.3d 1261, 1271 (9th Cir.1996); Bonin v. Calderon, 77 F.3d 1155, 1159 (9th Cir.1996).
Moormann's claim that cause excuses his procedural default is, however, not grounded on allegations of Cimino's ineffectiveness in his role as Moormann's counsel during his first PCR petition. Rather, the claim is grounded in allegations that Cimino was ineffective when serving as Moormann's counsel on direct appeal, for failing to raise various issues that the state courts later found precluded because they were not raised on direct appeal. There is a Sixth Amendment right to counsel during a criminal defendant's appeal as of right. McCoy v. Court of Appeals of Wis., 486 U.S. 429, 436, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988). Therefore, if Cimino was constitutionally ineffective in failing to present these claims on direct appeal, Moormann may have demonstrated cause sufficient to overcome the procedural bar. Cf. Manning v. Foster, 224 F.3d 1129, 1135-36 (9th Cir.2000). Cimino was not trial counsel and should have had no conflict of interest in raising ineffective claims on direct appeal. He was, however, conflicted in the presentation of the first PCR petition, because he had been counsel on direct appeal.
Moormann raises a number of issues he claims Cimino was ineffective in failing to present on direct appeal.FN2 If Moormann had, after the denial of his first PCR petition, come into federal court and asserted on habeas review that Cimino was incompetent in failing to raise those issues during either direct appeal or the first PCR, the procedural bar to the claims of ineffectiveness on Cimino's part may have been excused for cause. Instead, after Moormann's first PCR petition was denied as procedurally barred, Cimino filed a motion, in state court, asking for the appointment of new counsel to assert Cimino's ineffectiveness in failing to raise those claims on direct appeal. The trial court at that time refused. When Moormann filed a second, pro se, PCR petition, the trial court appointed a different attorney to represent him, one who was not conflicted in raising Cimino's ineffectiveness. That counsel filed an amended second PCR petition, in which he alleged that Cimino was ineffective for failing to file an adequate motion for reconsideration after the first PCR petition was denied, for failing to appeal denial of the first PCR petition, and for failing to present certain other, specifically enumerated, issues of alleged error at trial and sentencing. Insofar as Cimino was ineffective for failing to present the issues raised in the first and second PCR petitions during Moormann's direct appeal, such ineffectiveness does not excuse Moormann's failure to include, in his second PCR petition, the additional claims of trial and sentencing counsel's ineffectiveness, that were raised for the first time in his habeas petition.
FN2. Those issues are, according to Moormann's brief: inadequate voir dire, gruesome photographs, jury instructions, denial of right to rebut evidence, prosecutorial misconduct, right to testify, incomplete record, incompetent trial and sentencing counsel, unconstitutional (F)(5) and (F)(6) aggravating factors, consideration of prejudicial information at sentencing, denial of jury trial on facts that increase the sentence, failure to channel sentencing discretion, death sentence cruel and unusual punishment, and failure to independently review mitigation and aggravation and reweigh those factors.
Therefore, we conclude that Moormann has sufficiently asserted cause to excuse the procedural default of those claims that were presented in his first and second PCR. These claims include, but are not limited to, the following: 1. That trial counsel was ineffective for failing to present available evidence that Moormann's statements to the police were not voluntary because of his mental illness (claim 12C in the district court) 2. That his sentencing counsel was ineffective for failing to investigate and call witnesses who could testify to Moormann's background and childhood (16A, B, and C in the district court) 3. That his sentencing counsel was ineffective for refusing to allow Moormann to testify at sentencing to mitigate his prior conviction (claim 16H in the district court) 4. That appellate counsel was ineffective for failing to present (and thereby both exhaust and save from procedural bar) the following issues: a. Counsel's ineffectiveness at trial and sentencing in the respects described above b. That Moormann's right to a jury trial on all facts that increased his sentence was violated by Arizona's practice of judge sentencing c. That the Arizona death penalty statute fails to guide the sentencer d. That the death penalty is cruel and unusual punishment both generally and as applied in Moormann's case
Cimino's failure to raise these claims constitutes “cause” sufficient to lift the state procedural bar only if he was indeed ineffective in failing to raise them, i.e., if the failure prejudiced Moormann. Claims 4c and 4d have been repeatedly rejected by the Arizona courts. See State v. Sansing, 200 Ariz. 347, 26 P.3d at 1118, 1131-32 (2001). If the law on those issues changes, Moormann can file an additional PCR in Arizona state court to address the effect of the legal change on his case. Ariz. R.Crim. P. 32.2. Cimino's failure to raise these issues could not have prejudiced Moormann.
We vacate and remand the other claims listed above, along with any other colorable claims in Moormann's first and second PCR, to the district court for further proceedings to determine whether there was prejudice to Moormann in Cimino's failing to raise those claims on direct appeal. If the district court determines that there was prejudice, Moormann will have sufficiently shown cause and prejudice to excuse his procedural default of those claims, and the district court may determine their merits.
AFFIRMED IN PART, VACATED IN PART, and REMANDED.
CAPT. HORRALL: Okay now, we'll begin (inaudible) ... I'll let you guys take case (inaudible) ... (inaudible-noise). Okay Robert, you've already been advised of your Miranda rights, uh, however, I'm gonna' tape record, and since you feel the need to discuss this, apparently since you've made several statements, you can go ahead and, if you want to, just-you can tell us anything you'd like at this time. Officer Thuesen needs to read you your rights first. Okay, Don? OFFICER THUESEN: Okay. You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer and have him present with you while you are being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you for any questions if you wish. If you decide at any time to exercise these rights and not answer any questions or make any statements. Okay, Robert, do you understand each of these rights as explained to you? ROBERT MOORMANN: Yes, I do. OFFICER THUESEN: Okay, having these rights in mind, do you wish to talk to us? OFFICER THUESEN: Okay, having these rights in mind, do you wish to talk to us? ROBERT MOORMANN: Yes, I do. OFFICER THUESEN: Okay, uh, time is now 0318 on, uh, Saturday, January 14th, 1984. CAPT. HORRALL: Okay, Robert, would you-present during this interview will be, uh, Officer Don Thuesen, Captain T.J. Horrall and Robert Moormann. ROBERT MOORMANN: Robert Henry Moormann. CAPT. HORRALL: Robert Henry Moormann. Would you like to tell us what happened today? ROBERT MOORMANN: Well, my mom and I had a-we had a argument, and during it I hit her a few times, and then it got worse and I-I lost my cool and-and I tied her up, and she kept on me, talkin' about things that, uh, pertained to my real family and, I don't remember the exact time, and I suffocated her. Then I took the 409 and went into the wash room. I panicked, at which time I dissected her. CAPT. HORRALL: Where did you do that at? ROBERT MOORMANN: In the sh-shower and tub. OFFICER THUESEN: Was that this morning, Robert? ROBERT MOORMANN: Yes, sir. OFFICER THUESEN: Now you told me earlier when we were trying to find her that, uh, you know, while-while she was missing that, uh, you got up about 6:30 or 7:00 o'clock; is that about the time you got up? ROBERT MOORMANN: I never went to bed. OFFICER THUESEN: You never went to bed last night? ROBERT MOORMANN: (No answer) OFFICER THUESEN: That would have been on the, uh, night of the 13th? ROBERT MOORMANN: Yes, sir. Night of the 12th. OFFICER THUESEN: Night of the 12th? ROBERT MOORMANN: Yes, sir. OFFICER THUESEN: Friday night or Thursday night? ROBERT MOORMANN: Thursday. OFFICER THUESEN: Thursday night. That would have been the night of the 12th. Uh, did your mother stay up all night, too? ROBERT MOORMANN: Yes, sir. OFFICER THUESEN: Okay, uh, was it sunup yet? Do you know, uh, Robert? ROBERT MOORMANN: I-I didn't get to check. OFFICER THUESEN: Didn't pay any attention. Did you, uh, what-what did you use to suffocate her? ROBERT MOORMANN: A pillow. OFFICER THUESEN: Okay. Was that, uh-was she in the bed, Robert? ROBERT MOORMANN: The bed closest to the bathroom. OFFICER THUESEN: On the bed closest to the bathroom. Okay. And then you, uh, you held a pillow over her face? ROBERT MOORMANN: Yeah, and kept it until she was dead. OFFICER THUESEN: You had-you had tied her up before then? ROBERT MOORMANN: Yes. OFFICER THUESEN: What did you tie her up with, Robert? ROBERT MOORMANN: I tore a towel up. OFFICER THUESEN: Tore a towel up? What did you-what did you do with the towel after? ROBERT MOORMANN: I threw it away this morning. CAPTAIN HORRALL: You threw that away this morning? Do you know where you threw it? ROBERT MOORMANN: Yes. It's probably in one of those bins where the maids put the stuff. OFFICER THUESEN: Okay. Did you, you throw it in the trash in the, uh, room there? ROBERT MOORMANN: I-I gave it to the maid in-it was in a plastic bag I gave the maid this morning. OFFICER THUESEN: You gave the maid a plastic bag this morning? ROBERT MOORMANN: Yeah, when I to-when I to-when I told 'em that my mom was sick and didn't want to be disturbed, and they didn't-instead of, instead of going inside, they had me hand 'em the stuff. OFFICER THUESEN: Okay, was there anything else in the bag that you handed the maid? ROBERT MOORMANN: A razor blade that I used to cut'er with. I had torn one of the razors I had apart. OFFICER THUESEN: Uh, the-there was just, uh, there was just trash and some, uh-was there bloody material or anything in the bag? ROBERT MOORMANN: No. OFFICER THUESEN: Just the parts of the towel and a piece of razor or one of the razors? ROBERT MOORMANN: There might be-I can't remember if I put that one piece of towel that was kind of bloody in there or not. There might be. I can't remember. OFFICER THUESEN: Okay, uh- CAPTAIN HORRALL: Okay, uh, Robert, after you suffocated her, uh, then what happened? ROBERT MOORMANN: I untied 'er and let 'er lay there for awhile. Then I knew I had to do something because I knew that Baker and Mrs. Southworth was gonna' be there. CAPTAIN HORRALL: Did she show up at one o'clock? ROBERT MOORMANN: Yes. CAPTAIN HORRALL: Okay. What did you do before she showed up? ROBERT MOORMANN: That's when I dissected my mom. CAPTAIN HORRALL: Okay. When did you, uh-when you did that then what did you do-how did you dispose of 'er? ROBERT MOORMANN: I went down and bought some plastic bags from, uh, the grocery store. CAPTAIN HORRALL: From U-Totem er- ROBERT MOORMANN: Yes, and I used the knife you have, so on. And if you look in the fan, the one that's against the far wall, there's some-there's some little holes on-on top. CAPTAIN HORRALL: Uh-huh. ROBERT MOORMANN: You'll find the steak knife that I used to cut the bones. CAPTAIN HORRALL: Okay. OFFICER THUESEN: Do you know-do you recall how many bags, uh, you had to use, Robert? ROBERT MOORMANN: No. OFFICER THUESEN: Okay. ROBERT MOORMANN: But I know that on some of the parts I doubled. OFFICER THUESEN: You doubled the bags or, uh, you used two bags on some parts? ROBERT MOORMANN: But then I decided at first I'd just cut 'er, just-and put the-put the arms and legs into bags and then later on I decided-I knew if I could-it would be easier to dispose of 'er; then I dissected her completely. That's when I panicked and that's the reason I wanted to talk to the Major. There's something I'll tell him. OFFICER THUESEN: Okay. ROBERT MOORMANN: But I would- OFFICER THUESEN: Go ahead. ROBERT MOORMANN: I would like to have-you two can be there. I-this part I'd like to have off this record. OFFICER THUESEN: Okay. OFFICER HORRALL: Okay. (Off the record discussion) OFFICER HORRALL: Did you flush anything down the toilet? ROBERT MOORMANN: Yes. CAPTAIN HORRALL: What did you flush down the toilet? ROBERT MOORMANN: Nine fingers. CAPTAIN HORRALL: Fingers? ROBERT MOORMANN: Yes. CAPTAIN HORRALL: Okay. Is that all? ROBERT MOORMANN: Yes, sir. OFFICER THUESEN: Robert, you said nine fingers? ROBERT MOORMANN: The tenth one I did this afternoon. OFFICER THUESEN: Now, you say you did this afternoon. What do you mean by that? ROBERT MOORMANN: I was, uh, when I was cuttin' 'em off I lost one of 'em. OFFICER THUESEN: I see. ROBERT MOORMANN: And this afternoon I found that. CAPTAIN HORRALL: Did you flush it also? ROBERT MOORMANN: Yes. CAPTAIN HORRALL: Okay. OFFICER THUESEN: Do you-do you recall how many trips, uh, you made to, uh, any of the, uh, trash areas with bags? ROBERT MOORMANN: Not that I remember. Uh, about four. OFFICER THUESEN: About four. ROBERT MOORMANN: 'Cause I didn't want people to know what I was doing. OFFICER THUESEN: I see. CAPTAIN HORRALL: After-wha-what clothes-where are the clothes that you had on when you did this? ROBERT MOORMANN: Nothin'. CAPTAIN HORRALL: No clothing? ROBERT MOORMANN: Nothin'. CAPTAIN HORRALL: You didn't have any clothes on when you did this? ROBERT MOORMANN: No. CAPTAIN HORRALL: Did you want to talk to the Major now? ROBERT MOORMANN: Whenever he wants to, yeah. CAPTAIN HORRALL: Okay. This concludes the interview. It is 0236 a.m.