State v. Rogovich

Citations: 932 P.2d 794; 188 Ariz. 38; 236 Ariz. Adv. Rep. 3; 1997 Ariz. LEXIS 14Docket: CR-95-0288-AP

Court: Arizona Supreme Court; February 4, 1997; Arizona; State Supreme Court

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On June 1, 1994, a jury convicted Pete Carl Rogovich of multiple serious charges, including four counts of first-degree murder, leading to a death sentence for three of those convictions. This case reached the Arizona Supreme Court for a direct appeal. The events began on March 15, 1992, when Rogovich expressed anger towards his girlfriend to a maintenance worker before committing a series of violent acts. He fatally shot Super Stop Market clerk Tekleberhan Manna shortly after, without robbery motive, as no valuables were taken. Later that day, Rogovich escalated his violence in a trailer park, killing three individuals: Phyllis Mancuso, Rebecca Carreon, and Marie Pendergast, all shot at close range. After the shootings, he carjacked a radio station van at gunpoint and later robbed a convenience store, where he briefly set his gun down to demand money. Following a police pursuit that ended with his capture at a roadblock, Rogovich confessed to the murders and expressed remorse, attributing his actions to personal grievances, including the death of his stepfather and a recent breakup.

On March 26, 1992, Rogovich faced charges including four counts of first-degree murder, two counts of aggravated assault, two counts of armed robbery, and unlawful flight from law enforcement, with the State indicating an intent to seek the death penalty. Rogovich pleaded not guilty, and the court granted motions for competency evaluations, ultimately deeming him competent for trial. Subsequently, Rogovich indicated plans to present an insanity defense, supported by evaluations from two mental health experts who diagnosed him with paranoid schizophrenia. In contrast, two State experts concluded he had a personality disorder and was merely intoxicated with PCP.

Rogovich's jury trial began on May 12, 1994, where he moved for acquittal twice, both motions denied. The jury found him guilty on all charges after deliberating for over five hours. During sentencing, the State presented three statutory aggravators, while Rogovich submitted one statutory and five nonstatutory mitigators. The judge concluded Rogovich intentionally killed the victims and found the mitigators insufficient for leniency, sentencing him to death for three murders and life with parole eligibility for one.

Rogovich contested the admissibility of expert testimony from Dr. Philip Keen, who substituted for the unavailable Dr. Larry Shaw in explaining autopsy reports. Despite acknowledging that prior rulings allow such testimony, Rogovich argued that Dr. Keen's opinion was based on potentially unqualified observations. However, the legal standards permit experts to base opinions on data not generated by themselves, as long as it is of a type reasonably relied upon in the field, a point Rogovich did not substantiate with authority.

In *State v. Lundstrom*, the court established that an expert may testify about another expert's opinion if the testifying expert reasonably relied on that opinion to form their own. This principle applies to Dr. Keen's reliance on Dr. Shaw's report and opinions, which is deemed reasonable and cannot be seriously contested. The court emphasized that Rule 703 allows experts to utilize the findings of their colleagues without requiring every contributing expert to testify, avoiding an impractical chain of testimony. 

Regarding confrontation rights, the defendant, Rogovich, argued that the admission of non-testifying expert opinions violated his right to confront witnesses. However, it was clarified that such testimony is not considered hearsay if it is used solely to explain the basis of the testifying expert's opinion, rather than to assert the truth of the underlying matters. As Dr. Keen was available for cross-examination regarding his reliance on Dr. Shaw's findings, there was no violation of the confrontation clause.

Additionally, Rogovich challenged the jury instruction that required unanimous agreement on first-degree murder before considering second-degree murder. The instruction stated that jurors must find the evidence insufficient for the more serious charge before deliberating on the less serious one.

The document references the evolution of jury instructions in Arizona regarding lesser-included offenses, specifically disapproving the "acquittal-first" requirement established in *State v. Wussler* and *State v. Staatz*. The court, in *State v. LeBlanc*, determined that juries should be allowed to consider lesser-included offenses if they cannot reach a unanimous decision on the charged crime, provided they make reasonable efforts to do so. The court clarified that the previous instruction does not constitute fundamental error and that *LeBlanc* should be applied prospectively only, thus upholding the lower court's use of the Wussler instruction in Rogovich's case.

Rogovich's appeal included a challenge to the presentation of an insanity defense, arguing that due process requires a defendant's explicit agreement to such a defense. However, the court referenced *State v. Hurles*, which rejected similar claims, affirming that the presumption of innocence and the state's burden of proof remain intact, even when a defendant asserts an insanity defense. Rogovich did not object to his lawyer's strategy and was actively involved in the proceedings, making the absence of an explicit agreement non-fundamental error.

Lastly, Rogovich's counsel presented no sentencing issues for review, and even affirmed that a thorough examination of the record revealed no arguable issues. Despite this, the court stated it would independently review the aggravating and mitigating factors in the case, as required in capital cases, to determine the appropriateness of the death penalty.

To establish the death qualification of a defendant, the State must prove aggravating circumstances beyond a reasonable doubt as outlined in A.R.S. 13-703(F). In this case, the judge identified three aggravating circumstances for Rogovich: (1) a previous conviction for an offense that could result in life imprisonment or death under Arizona law; (2) a felony involving violence; and (3) additional homicides committed during the offense.

1. **Aggravating Circumstance (F)(1)**: The judge found that the State demonstrated (F)(1) related to the trailer park killings, rejecting Rogovich's assertion that this provision applies only to out-of-state convictions. The interpretation that (F)(1) includes convictions from Arizona is supported by case law, thus affirming its applicability to Rogovich’s situation.

2. **Aggravating Circumstance (F)(2)**: The State argued that Rogovich's prior convictions for aggravated assault and armed robbery fulfill the requirements of (F)(2), which necessitates a previous felony conviction involving violence. Rogovich contested this, but case law indicates that (F)(2) applies to any convictions prior to sentencing, regardless of the order of offenses. The definition of violence in these convictions was also upheld, confirming that they meet the criteria set forth in (F)(2). Consequently, the judge correctly recognized the existence of this aggravating circumstance in relation to all four murders.

The State argued that the circumstances of the trailer park killings met the criteria for aggravating factor 13-703(F)(8), relating to multiple homicides. Citing *State v. Lavers*, the court assessed the temporal, spatial, and motivational relationships between the capital and collateral homicides. A precedent in *State v. Ramirez* indicated that multiple homicides arising from a single disturbance could be viewed as one continuous course of criminal conduct. The judge found that Rogovich’s actions in the trailer park killings justified the application of this aggravating circumstance.

Rogovich had the burden to prove any mitigating circumstances. He presented one statutory mitigating factor—impaired capacity to appreciate the wrongfulness of his actions—and five non-statutory factors: a dysfunctional upbringing, lack of serious prior offenses, a good employment history, good behavior while incarcerated, and feelings of remorse. The judge accepted all mitigators except for the impairment claim. 

In weighing the circumstances for sentencing, the judge found that for the murder of Tekleberhan Manna, although aggravating factors applied, the mitigating circumstances warranted leniency. Conversely, for the other three murders, the judge identified three aggravating factors and concluded that the mitigating circumstances were insufficient to justify leniency, particularly emphasizing the significance of the (F)(8) factor.

Ultimately, the court affirmed Rogovich's convictions and sentences, indicating that the mitigating circumstances did not outweigh the aggravating ones, and a life sentence was not deemed appropriate. The judges concurred, except for Judge Moeller, who did not participate in the decision.