Appeal from the Superior Court in Maricopa County The Honorable Janet E. Barton, Judge No. CR2006-112056-001
Thomas C. Horne, Arizona Attorney General, Robert L. Ellman, Solicitor General, Jeffrey A. Zick, Chief Counsel, Capital Litigation Section, Jeffrey L. Sparks (argued), Assistant Attorney General, Phoenix, for State ofArizona.
David Goldberg (argued), Ft. Collins, Co., for William Craig Miller
CHIEF JUSTICE BERCH authored the opinion of the Court, in which VICE CHIEF JUSTICE BALES, JUSTICE PELANDER, JUSTICE BRUTINEL, and JUSTICE TIMMER joined.
BERCH CHIEF JUSTICE
¶1 William Craig Miller was convicted of five counts of first degree murder, among other charges, and was sentenced to death for each murder. This automatic appeal followed. We have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 13-4031.
I. FACTUAL AND PROCEDURAL HISTORY
¶2 In 2005, Miller's Scottsdale home burned down. Shortly thereafter, Miller's employee, Steven Duffy, admitted that he and Miller set the fire, and he and his girlfriend, Tammy Lovell, began cooperating with the police in the arson investigation. A few weeks later, Miller was indicted for arson and related fraud.
¶3 Miller blamed Steven for the indictment and told several people that he wanted to have Steven and Tammy killed. He tried to recruit four different men to kill them and their family. On February 21, 2006, three months after the arson, the police found the five victims — Steven, Tammy, Steven's brother Shane, and Tammy's children, Cassandra and Jacob — shot to death in their home.
¶4 Three guns were used in the murders. Witnesses linked two of the guns to Miller; the third apparently belonged to victim Steven Duffy.
¶5 Less than a week later, Miller staged a burglary at his rental home in an attempt to make it appear as if the victims' killer was after him too. While investigating the burglary, the police recovered several items, including bullets, that later linked Miller to the five murders.
¶6 Miller was indicted for the murders in 2006. After trial, a jury found him guilty of five counts of first degree murder, one count of first degree burglary, and four counts of solicitation of first degree murder. The jury also found four aggravating circumstances: prior conviction of a serious offense under A.R.S. § 13-751(F)(2); multiple homicides under § 13-751(F)(8); young age of the victim (Jacob, age 10) under § 13-751(F)(9); and witness elimination under § 13-751(F)(12). Concluding that the mitigation evidence was insufficient to warrant leniency, the jury returned death verdicts for each of the five murders. This automatic appeal followed.
A. Speedy Trial
¶7 Miller argues that he was deprived of his Sixth Amendment right to a speedy trial because of systemic breakdowns in the indigent defense system and the government's failure to adequately oversee his case. Because Miller did not assert this claim below, we review for fundamental error. See State v. Schaaf, 169 Ariz. 323, 327, 819 P.2d 909, 913 (1991).
¶8 "The Sixth Amendment's guarantee of a speedy trial protects a defendant's right to be brought to trial without undue delay." State v. Parker, 231 Ariz. 391, 398 ¶ 9, 296 P.3d 54, 61 (2013); see also U.S. Const. amend VI. To evaluate such claims, courts weigh "(1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of the right to a speedy trial, and (4) the prejudice to the defendant." Parker, 231 Ariz. at 398 ¶ 9, 296 P.3d at 61; see also Barker v. Wingo, 407 U.S. 514, 530-32 (1972). Although the length-of-delay factor carries the least weight, it triggers the full speedy trial or "Barker" analysis, requiring consideration of all four factors. McCutcheon v. Superior Court (State), 150 Ariz. 312, 316, 723 P.2d 661, 665 (1986). Miller's trial began August 3, 2011, approximately five years and five months after Miller was indicted for the murders, a sufficient delay to require the full Barker analysis. See State v. Spreitz, 190 Ariz. 129, 140, 945 P.2d 1260, 1271 (1997) (finding a five-year delay presumptively prejudicial).
¶9 The second Barker factor requires assessment of who should bear the responsibility for the delay. See Vermont v. Brillon, 556 U.S. 81, 90 (2009). Any "delay caused by the defense weighs against the defendant." Id.
¶10 The first significant delay — approximately four-and-a-half months — was caused by Miller's vacillation on whether to represent himself and whether to plead guilty, as well as by the need for Rule 11 competency proceedings. Because nothing in the record indicates that Miller delayed the case unnecessarily, that delay does not weigh heavily against him. The longest portion of the pretrial delay — two years and nine months — resulted from defense counsel's failure to prepare the case. After granting several continuances, the court eventually removed Miller's lead counsel and appointed new counsel two-and-a-half months later. An additional eleven months were necessary to allow Miller's new lead counsel time to prepare for trial. Miller argues that these delays should be charged to the State because they resulted from systemic breakdowns in the indigent defense system. But the record does not show a systemic breakdown in this case; instead, defense counsel's personal issues, which were unknown to both the State and the trial court, caused most of the delay. "An assigned counsel's failure 'to move the case forward' does not warrant attribution of [the] delay to the State. . . . A contrary conclusion could encourage appointed counsel to delay proceedings by seeking unreasonable continuances, hoping thereby to obtain a dismissal of the indictment on speedy-trial grounds." Id. At 92-93.
¶11 The third Barker factor is whether the defendant asserted the speedy-trial right. Miller's failure to assert the right does not weigh heavily against him because we "attach a different weight to a situation in which the defendant knowingly fails to object from a situation in which his attorney acquiesces in long delay without adequately informing his client." Barker, 407 U.S. at 529.
¶12 The fourth and most important Barker factor — prejudice to the defendant — does not support Miller's claim of a Sixth Amendment violation.
See State v. Soto, 117 Ariz. 345, 348, 572 P.2d 1183, 1186 (1977) (calling prejudice the most important factor). To assess prejudice, we consider the interests the speedy trial right protects: (1) preventing "oppressive pretrial incarceration, " (2) minimizing "anxiety and concern of the accused, " and (3) limiting "the possibility that the defense will be impaired." Barker, 407 U.S. at 532. Miller alleges that prejudice resulted from oppressive pretrial incarceration. But, because he would have been incarcerated the entire time as a result of the arson charges, the delay in processing his murder case did not cause any prejudice resulting from incarceration. Moreover, during the trial process, Miller expressed a lack of concern about the delay, remarking that he was "going to get convicted" anyway. Finally, Miller does not argue that the pretrial delay impaired his defense.
¶13 Having weighed the four factors, we conclude that no Sixth Amendment violation occurred. See Parker, 231 Ariz. at 399 ¶¶ 17-18, 296 P.3d at 62 (finding no speedy trial violation when the defendant failed to show prejudice and the other Barker factors did not weigh in his favor). We therefore find no fundamental error.
B. Due Process Claim
¶14 Miller asserts that he was denied his Fourteenth Amendment right to due process when, after removal of his lead counsel, his new defense counsel was granted only eleven months to prepare for trial. The Fourteenth Amendment requires that appointed counsel have sufficient time to prepare a defense, Powell v. Alabama, 287 U.S. 45, 71 (1932), but does not “specif[y] any period which must intervene between the required appointment of counsel and trial, ” Avery v. Alabama, 308 U.S. 444, 446 (1940). Because Miller did not assert a due process violation in the trial court, we review for fundamental error. See State v. Valverde, 220 Ariz. 582, 585 ¶ 12, 208 P.3d 233, 236 (2009).
¶15 To prove the inadequacy of eleven months’ preparation time, Miller points to one prospective defense attorney’s estimate that he would have needed three years to properly prepare the case for trial. This fact alone does not establish a due process violation because Miller’s new lawyer neither requested additional time nor asserted that he had not been given adequate time to prepare. Moreover, Miller’s defense team included three attorneys, one of whom had been working on the case since its inception. Miller has thus failed to establish fundamental error.
C. Consolidation of Murder and Solicitation Charges
¶16 Miller contends that the murder and solicitation charges were not properly joined under Arizona Rule of Criminal Procedure 13.3(a) and (c). That rule permits consolidation of offenses if they “[a]re alleged to have been a part of a common scheme or plan.” Ariz. R. Crim. P. 13.3(a)(3). Consolidation is proper only if “the ends of justice will not be defeated thereby.” Ariz. R. Crim. P. 13.3(c). We review a trial court’s decision to consolidate charges for an abuse of discretion. State v. Hausner, 230 Ariz. 60, 74 ¶ 43, 280 P.3d 604, 618 (2012) (citation omitted).
¶17 On separate occasions, Miller asked four men to carry out the murders that he ultimately committed himself. The men he solicited each testified that Miller wanted the victims dead because Steven and Tammy had cooperated with the police. These facts are sufficient to establish a common scheme or plan among the solicitations and the murders. Cf. id. at 75 ¶ 47, 280 P.3d at 619 (finding a common plan based on a general thrill-seeking scheme when defendant randomly shot people and animals over a fourteen-month period). The two-month period between the solicitations and the murders does not diminish the relationship between the crimes because Miller’s motive remained the same, and he continued to plan the murders throughout that period. That Miller had no precise plan for killing the victims, having suggested different methods of doing so to those solicited and then ultimately shooting the victims himself, did not ...