IN THE SUPREME COURT OF ARIZONA

En Banc

STATE OF ARIZONA, ) Supreme Court

) No. CR-99-0378-AP

Appellee, )

)

)

v. )

) Pima County

) Superior Court

LEMUEL PRION, ) No. CR-60263

)

Appellant. )

)

_______________________________) OPINION

Appeal from the Superior Court of Pima County

Honorable Bernardo P. Velasco, Judge

VACATED AND REMANDED

_________________________________________________________________

Janet Napolitano, Attorney General Phoenix

by Kent E. Cattani, Chief Counsel

Capital Litigation Section

and Bruce M. Ferg, Assistant Attorney General

Attorneys for Appellee

Law Offices of the Pima County Public Defender Tucson

by Frank P. Leto, Assistant Public Defender

and Brian X. Metcalf, Assistant Public Defender

Attorneys for Appellant

_________________________________________________________________
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J O N E S, Chief Justice

¶1 Lemuel Prion was convicted by a jury January 28, 1999, of

first degree murder, kidnaping (dangerous), and aggravated assault

(dangerous). The murder of Diana Vicari occurred between October

22 and October 24, 1992. The kidnaping and aggravated assault of

Tabitha Armenta occurred at the end of 1992. Prion was acquitted

of a sexual assault charge as to Tabitha Armenta. He was sentenced

to death for the Vicari murder and to 21 years for the Armenta

kidnaping, with a consecutive 15-year sentence for the aggravated

assault. Appeal directly to this court is mandatory when the trial

court imposes a sentence of death. Arizona Revised Statutes

(A.R.S.) § 13-703.01 (2001). We have jurisdiction pursuant to

article VI, § 5(3) of the Arizona Constitution, A.R.S. § 13-4031,

and Arizona Rules of Criminal Procedure 26.15 and 31.2(b).

Facts

The Murder

¶2 Diana Vicari was at the Tucson Community Center at about

midnight Thursday, October 22, 1992. Her car was found near La Osa

Street the following Monday. There had been a party in that area

the previous Thursday night. Vicari’s car had been parked there

since early Friday morning. On Saturday, October 24, 1992, her

severed arms were found wrapped in plastic bags in a dumpster.

Evidence indicated the arms had been severed from the body after

death. The medical examiner testified that in her opinion two
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different instruments were used to sever the arms. She referenced

the probability of a heavy knife for the bones and a sharp serrated

knife for the flesh. There was no physical evidence identifying

Prion as her killer.

¶3 In August 1993, the police showed photographs of Vicari

and Prion to Troy Olson, an employee of the New Orleans

nightclub/bar in Tucson. According to the police, at that time

Olson recognized Vicari but not Prion. About seventeen months

later, in January 1995, Olson saw photographs of Vicari and Prion

on the front cover of the Tucson Weekly. Olson contacted the

police and then made a positive identification of Prion as the man

who was with Vicari in the New Orleans the night of October 22,

1992.

¶4 Olson testified at trial that Vicari introduced Prion to

him. Vicari’s intent, according to Olson, was to attend a party

later that evening. She asked Olson to meet her at the party.

Vicari was to obtain the address of the party from Prion, return to

the New Orleans, and leave the address for Olson. She did not

return to the bar.

¶5 In addition to Olson’s identification, the state provided

evidence of the following facts: Prion was working two jobs at the

time of the murder. He worked as a carpenter on weekdays and as a

nursing home assistant on the weekend shift for The Golden Years

Nursing Home. In December 1992, Prion told his nursing home
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employer that he was afraid he was going to kill someone. In

addition, he also owned several knives, including a machete, and

had been to a recording studio located near the dumpster where the

arms were discovered.

¶6 Prion also had a habit of talking about committing

violent acts on women. He often spoke of being ripped off by

women. He told his brother and sister-in-law about having

threatened or having thought about threatening a woman with a

machete, but ultimately coming to his senses and releasing her.

Prion made similar statements to former cellmates Jeffrey Brown and

Jerry Wilson.

¶7 Prion spoke to the Tucson police in September 1993 but

never admitted the Vicari murder. Prion’s comment upon seeing a

photograph of Vicari was, “I want to say the face looks familiar,

but the tits don’t. And I remember tits like that.” Detective

Salgado thought this comment was odd as that particular photograph

in his opinion shed little or no light on the accuracy of Prion’s

observation. Vicari’s mother testified that her daughter was full

chested.

The Kidnaping and Aggravated Assault

¶8 In 1992, Tabitha Armenta had been a street prostitute in

Tucson with a drug problem. Armenta would normally let men pick

her up, would not go through with the transaction, would take their

money and run, or would sell them drugs.
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¶9 Prion told Detective Salgado about being ripped off by a

prostitute named Tabitha when he was interviewed regarding the

Vicari murder. Prion stated that he made a false 911 overdose

call, citing Tabitha’s residence after she ripped him off several

times. Based on this information, the Tucson police contacted

Tabitha Armenta in prison in 1994. When police officers first

showed her a photograph of Prion, Armenta did not recognize him.

¶10 After speaking with the police, Armenta wrote a letter to

them, providing more details of the attack. She described an

incident in which her attacker spoke of being ripped off. He told

her he would cut her up and leave her or scatter her body. The

attacker forced her to perform oral sex on him. He threatened her

with a large knife and rubbed it on her body, saying that he

enjoyed threatening women and that it excited him. Armenta

eventually became angry and told her attacker that he should either

just do it or let her go. He let her go.

Trial Issues

Olson’s Identification

¶11 Prion moved to suppress Olson’s pretrial identification

as unduly suggestive, unreliable, and in violation of his

constitutional rights. Prion claimed that photographs viewed by

Olson were suggestive because each was a single photograph, and

they listed the defendant’s name and the fact that he was

incarcerated. The trial court noted the weakness of the
1 Minute entry dated December 22, 1998.

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identification but nevertheless allowed it into evidence.1

¶12 At trial, Olson identified Prion as the man he saw with

Vicari on the night she disappeared. Olson had seen photographs of

Prion on two earlier occasions. The first was August 1993 when the

police showed Olson a mug shot of Prion. At that time, Olson could

not identify Prion. He stated that the person in the photograph

did not look familiar.

¶13 The second occasion occurred when Olson saw separate

photographs of both the defendant and Vicari on the cover of the

January 1995 Tucson Weekly. Prion’s photograph supplied his name

and date of birth and indicated that he was incarcerated.

Moreover, the Weekly labeled Prion as the prime suspect in the

Vicari murder. After viewing this photograph, Olson identified

Prion as the man who was with Vicari on the night she disappeared.

¶14 We review orders regarding motions to suppress on an

abuse of discretion standard. State v. Atwood, 171 Ariz. 576, 603,

832 P.2d 593, 620 (1993). Pretrial identifications which are

fundamentally unfair implicate the due process clause of the

Fourteenth Amendment. State v. Nordstrom, 200 Ariz. 229, 241, 25

P.3d 717, 729 ¶23 (2001) (citing Stovall v. Denno, 388 U.S. 293,

297-98 (1967)); see also Neil v. Biggers, 409 U.S. 188, 199-200

(1972). To show a due process violation, the defendant must prove
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that the circumstances surrounding the pretrial identification

created a substantial likelihood of irreparable misidentification

and that the state was responsible for that suggestive pretrial

identification. State v. Williams, 166 Ariz. 132, 135-39, 800 P.2d

1240, 1243-47 (1987).

¶15 There is no need to perform a Biggers analysis when the

identification is not the result of state action. Nordstrom, 200

Ariz. at 241, 25 P.3d at 729 ¶24 (“Because the state action

requirement of the Fourteenth Amendment... cannot be

established, due process is inapposite.”) (citation omitted). We

find no state action here which resulted in the identification.

The article and photograph were published by the Tucson Weekly.

The article was written by a freelance writer not employed by the

Tucson Police Department. While the writer had some contact with

the police and misrepresented herself to others as having the

approval of the police, we agree with the trial court that she “was

not an agent of the Tucson Police Department nor the Pima County

Attorney . . . and had no direct contact or cooperation from Det.

Salgado.”

¶16 As this court noted in Nordstrom, due process concerns

may be implicated where a minimal threshold of reliability is not

met. Nordstrom, 200 Ariz. at 241, 25 P.3d at 729 ¶26. While

Olson’s identification of Prion was weak, we believe the state

demonstrated at least the threshold standard of reliability set
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forth in Williams, 166 Ariz. at 137, 800 P.2d at 1245.

¶17 Defense counsel thoroughly cross examined Olson regarding

his identification. Prion presented the testimony of another bar

employee to discredit Olson. He also presented testimony from a

psychologist regarding problems inherent in eyewitness

identification. The jury heard that Olson could not identify Prion

from the photograph shown him by the police in August 1993.

¶18 Any complaints concerning the identification go to its

weight and credibility, not its admissibility. Such matters are of

course for the jury to consider. Nordstrom, 200 Ariz. at 242, 25

P.3d at 730 ¶27. In our view, the trial court did not abuse its

discretion in admitting Olson’s identification of Prion.

Third party culpability evidence

¶19 The state repeatedly argued at trial that the inherent

tendency test from State v. Fulminante required a connection

between the third party and the crime and that vague suspicions

were insufficient. State v. Fulminante, 161 Ariz. 237, 252, 778

P.2d 602, 617 (1988) (“Before a defendant may introduce

. . . [third party culpability evidence] the defendant must show

that the evidence has an inherent tendency to connect such other

person with the actual commission of the crime.”). The state

maintained the same argument on appeal.

¶20 The trial judge precluded third party culpability

evidence regarding one John Mazure, relying on the inherent
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connection language in Fulminante. The judge did agree to admit

evidence relating to Robert Encillas and Greg Hatton, evidence

which the defense ultimately declined to use.

¶21 The admissibility of third party culpability evidence is

reviewed under an abuse of discretion standard. State v.

Tankersley, 191 Ariz. 359, 369, 956 P.2d 486, 496 ¶37 (1998). It

is permissible for a defendant to attempt to show that another

person committed the crime for which he is charged, Tankersley, 191

Ariz. at 369, 956 P.2d at 496 ¶38 (citations omitted), but it

remains in the trial court’s discretion to exclude the evidence if

it offers only a possible ground of suspicion against another.

State v. Oliver, 169 Ariz. 589, 591, 821 P.2d 250, 252 (App. 1991).

¶22 In our recent opinion in State v. Gibson, 202 Ariz. 321,

44 P.3d 1001 (2002), we clarified the rule, holding that a special,

higher standard of admissibility for third party culpability

evidence was not the intention of Fulminante. The proper standard

regarding third party culpability evidence is found in Rules 401,

402, and 403 of the Arizona Rules of Evidence. Any such evidence

must simply be relevant and then subjected to the normal 403

weighing analysis between relevance, on the one hand, and prejudice

or confusion on the other. Gibson, 202 Ariz. at 323, 44 P.3d at

1003 ¶13.

¶23 The defense offered the following evidence regarding

Mazure: he was a co-worker of Vicari’s at Eegees, a restaurant in
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Tucson; he was disciplined for sexually harassing female co-workers

on the job; he tried to conceal his discipline from the police; he

attempted to rape one of his female co-workers at his apartment

after work; he had a violent temper and bit a woman’s nose during

a fight; he rented a new apartment on the day of Vicari’s

disappearance; that new apartment was close to both the New Orleans

nightclub and the location at which Vicari’s car was found; he was

working at the New Orleans on the night Vicari disappeared; he

denied that fact when questioned by the police; one of the doormen

at the New Orleans said Vicari was let in to the bar that night

specifically to see him; and finally, he appeared at work the next

morning after Vicari’s disappearance so disheveled and disoriented

that he was fired. He was also considered a suspect early in the

investigation, at least to the extent that his car was tested by

the police for the presence of blood.

¶24 We explained in Gibson that the “proper focus in

determining relevancy is the effect the evidence has upon the

defendant’s culpability. To be relevant, the evidence need only

tend to create a reasonable doubt as to the defendant’s guilt.”

Gibson, 202 Ariz. at 324, 44 P.3d at 1004 ¶16 (emphasis in

original).

¶25 The proffered Mazure evidence is relevant in Prion’s

trial because on its face it may suggest reasonable doubt as to

Prion’s guilt. It supports the notion that Mazure had the
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opportunity and motive to commit this crime and that he may have

been in contact with Vicari.

¶26 While some confusion could occur with admission of the

Mazure evidence, its probative value is clear, and it is not

substantially outweighed by the possibility of prejudice. We

therefore conclude the trial court abused its discretion by

excluding the evidence of Mazure’s activity and behavior.

¶27 For an error to be reversible, it must be clearly

prejudicial and “sufficient to create a reasonable doubt about

whether the verdict might have been different had the error not

been committed.” State v. Pandeli, 200 Ariz. 365, 372, 26 P.3d

1136, 1143 ¶18 (2001) (citations omitted). Given the relative

strength of the Mazure evidence, we cannot say that the result of

this trial would have been the same if the evidence had been

admitted. The error necessitates a new trial on the Vicari murder

charge.

Joinder of Armenta and Vicari counts

¶28 The defendant filed a motion to sever the Armenta counts

from the Vicari murder charge. After hearing argument, Judge

Velasco issued a minute entry denying the defense motion to sever,

with no explanation. On the record, the trial judge stated that

his decision was based on motive. The motion was re-stated based

on the weakness of Armenta’s identification of her attacker. The

state argued that there was other evidence of identity. At that
2 Two or more offenses may be joined if they:

(1) [a]re of the same or similar character; or

(2) [a]re based on the same conduct or are otherwise

connected together in their commission; or

(3) [a]re alleged to have been a part of a common scheme

or plan.

Ariz. R. Crim. P. 13.3(a).

3 We discuss the admissibility of the Armenta crimes as

evidence of other acts under Rule 404(b) later in part B of this

section. Ariz. R. Evid. 404(b).

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point, the trial judge once again denied the motion to sever. A

denial of severance is reviewed for abuse of discretion. State v.

Murray, 184 Ariz. 9, 25, 906 P.2d 542, 558 (1995).

A. Rule 13.3(a)

¶29 It is unclear from the record which subsection of Rule

13.3(a)2 of our Rules of Criminal Procedure formed the basis for

the trial judge’s determination allowing consolidation of the

Vicari murder with the Armenta kidnaping and aggravated assault.

Ariz. R. Crim. P. 13.3(a). We will briefly discuss each of the

subsections.

¶30 Cases joined under Rule 13.3(a)(1) must be severed upon

request unless the evidence on the joined count would be admissible

in a separate trial on the other count. Ariz. R. Crim. P. 13.4(b).

In other words, since the defendant requested severance, subsection

(a)(1) could not support consolidation unless the trial judge

believed the evidence was cross-admissible.3

¶31 As to Rule 13.3(a)(2), the state now concedes that the
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Vicari murder and the Armenta crimes did not involve the “same

conduct.” Further, although the prosecutor argued for joinder

under 13.3(a)(3) at trial, the state acknowledges on appeal that

under our current Ives standard, such joinder would not be

appropriate. State v. Ives, 187 Ariz. 102, 106-08, 927 P.2d 762,

766-68 (1996). This means the only unanswered question is whether

the Vicari and Armenta offenses were “otherwise connected together

in their commission” under Rule 13.3(a)(2).

¶32 The “otherwise connected together in their commission”

language addresses whether evidence of the two crimes was so

intertwined and related that much the same evidence was relevant to

and would prove both, and the crimes themselves arose out of a

series of connected acts. See State v. Williams, 183 Ariz. 368,

375-77, 904 P.2d 437, 444-46 (1995) (murder of first victim

consolidated with armed robbery and attempted murder of second

victim where attempted murder occurred after the murder, and by the

defendant’s own statements was to silence a witness who he believed

had implicated him in the first murder); State v. Comer, 165 Ariz.

413, 418-20, 799 P.2d 333, 338-40 (1990) (murder and armed robbery

of one victim consolidated under Rule 13.3(a)(2) and (3) with

series of crimes perpetrated on victims two and three where

temporal proximity existed between the two sets of crimes and they

were a series of events connected by the common purpose of

obtaining money and supplies); State v. Martinez-Villareal, 145
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Ariz. 441, 446-47, 702 P.2d 670, 675-76 (1985) (two murder charges

properly joined with burglary charge where the murder weapons came

from the burglary).

¶33 The crimes against the two victims here were not

intertwined. The Vicari murder and the Armenta kidnaping and

assault were not provable by most of the same evidence, and they

did not arise out of a series of connected acts. As far as we can

discern from this record, the criminal acts against Vicari were

quite distinct from those against Armenta.

¶34 In addition, in Ives we clarified that the term “common

scheme or plan” was to be interpreted narrowly so as to define the

distinction between “same or similar character” and “common scheme

or plan.” Ives, 187 Ariz. at 107-08, 927 P.2d at 767-68 (“We adopt

this narrower definition because any other result blends Rule

13.3(a)(1) . . . and Rule 13.3(a)(3)... beyond recognition. If

common scheme is merely a ‘visual connection’ manifested by

‘similarities where one would expect differences,’ Rule 13.3(a)(3)

becomes a detour around defendant’s right to sever offenses joined

because they are similar.”).

¶35 Likewise, Rule 13.3(a)(2) should be interpreted narrowly.

We reject the state’s suggestion that Rule 13.3(a)(2) is a catchall for cases in which some logical connection exists between

unrelated crimes. Viewing “otherwise connected together in their

commission” as a catch-all would similarly make Rule 13.3(a)(2) “a
4 Except as provided in Rule 404(c) evidence of

other crimes, wrongs, or acts is not

admissible to prove the character of a person

in order to show action in conformity

therewith. It may, however, be admissible for

other purposes, such as proof of motive,

opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or

accident.

Ariz. R. Evid. 404(b).

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detour around defendant’s right to sever offenses joined because

they are similar.” Id.

¶36 Under the foregoing standard, we find the trial judge’s

decision to deny severance an abuse of discretion.

B. Admissibility of Other Acts Under Rule 404

¶37 The trial judge noted identity and motive stemming from

the evidence of other acts as his reasons for allowing

consolidation. Other acts evidence must be evaluated under Rule

404(b) of the Rules of Evidence.4 For other act evidence to be

admissible, it must be shown by the clear and convincing standard

that the act was committed and that the defendant committed it.

State v. Terrazas, 189 Ariz. 580, 582, 944 P.2d 1194, 1196 (1997).

¶38 The identity exception to Rule 404 is applicable only

where “the pattern and characteristics of the crimes . . . are so

unusual and distinctive as to be like a signature.” State v.

Stuard, 176 Ariz. 589, 597, 863 P.2d 881, 889 (1993) (citations

omitted); see also State v. Jackson, 186 Ariz. 20, 27, 918 P.2d
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1038, 1045 (1996) (“[T]he modus operandi of and the circumstances

surrounding the two crimes must be sufficiently similar as to be

like a signature.”) (citations omitted).

¶39 Here, very little is known about what happened to the

murder victim because her body has never been found. She was a

nineteen-year-old college student seen in a bar with the defendant.

Two days later her severed arms were discovered in a dumpster. It

is unknown if she was sexually assaulted prior to being murdered or

what the cause or circumstance of death may have been. Tabitha

Armenta was a thirty-five-year-old street prostitute involved with

drugs when she was detained by a man against her will, threatened

with a knife, and ultimately released. Her attacker threatened to

cut her up and leave her or scatter her body. He rubbed a knife on

her body and told her that threatening women excited him.

¶40 In addition, there is insufficient evidence regarding the

Vicari murder to conclude that the crimes against the two victims

were so “unusual and distinctive as to be like a signature.”

Stuard, 176 Ariz. at 597, 863 P.2d at 889 (citations omitted).

There is no evidence in this record to indicate that Vicari was

sexually assaulted or that her attacker was sexually gratified by

threatening women. We know neither the extent to which Vicari was

injured prior to her death nor the cause of death. We do know that

she was not released unharmed.

¶41 Any connection between the two crimes is attenuated at
5 Moreover, the trial judge suppressed Armenta’s identification

of the defendant as her attacker. Given this, we question the

state’s ability to meet the required clear and convincing standard

for other acts evidence. State v. Terrazas, 189 Ariz. 580, 582,

944 P.2d 1194, 1196 (1997).

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best. The most that can be said is that each occurred in Tucson at

the end of 1992, each involved a female victim, and a knife or

knives were utilized by the perpetrator(s) at some point during

commission of the crimes. These few factors are insufficient to

suggest a signature crime. Arizona law requires a more clear

connection to support a Rule 404 exception based on identity.5

¶42 Motive, also indicated by the trial judge, is another

exception to the general rule that other act evidence is generally

inadmissible. Ariz. R. Evid. 404(b). The state argued that both

the Vicari murder and the Armenta crimes were sexually motivated

and involved the defendant’s desire to terrorize, rape, kill, and

dismember women. The state cited the defendant’s many statements

to family members, cellmates, and others of having picked up women,

having threatened them with a knife or machete, and having thought

about killing the victims to support its sexual motivation theory.

The prosecutor argued this connection in closing argument, saying

Vicari was “probably also raped,” both Armenta and Vicari were

“brunette[s] with blue eyes,” and defendant’s fantasies about

picking up a young girl and cutting her up is “exactly what

happened to [Vicari].”
6 The rule requires the trial court to find the following:

sufficient proof that the defendant committed the prior act; the

other act supports a reasonable inference that the defendant has a

character trait giving rise to an aberrant sexual propensity to

commit the crime charged; and that the other crime would be

admissible under a Rule 403 weighing analysis (taking into

consideration the remoteness of the prior act, the similarity of

the prior act, the strength of evidence supporting the prior act,

the frequency of the other acts, surrounding circumstances,

relevant intervening events, other similarities or differences, and

other relevant factors). Ariz. R. Evid. 404(c).

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¶43 These are statements that essentially amount to aberrant

sexual propensity evidence under Evidence Rule 404(c) which cannot

be admitted, much less argued, without specific findings.6 The

defendant was not charged with a sexual offense regarding Vicari.

His general threats to do harm have little probative value when not

specifically directed at a particular victim. State v. Hughes, 189

Ariz. 62, 71, 938 P.2d 457, 466 (1997); State v. Bible, 175 Ariz.

549, 593, 858 P.2d 1152, 1196 (1993). Without more, the state has

not satisfied the requisite burden by which to justify Rule 404(c)

findings. Therefore, evidence introduced in support of the Armenta

counts should not have been admitted in the Vicari murder trial.

¶44 It is reasonably clear that the state’s evidence in

support of the Armenta counts does no more than raise an inference

that the “defendant acted in conformity with a negative view of

women... [and] this type of evidence is prohibited by Rule

404(a).” Hughes, 189 Ariz. at 71-72, 938 P.2d at 466-67. Because

evidence of these separate crimes was not cross-admissible under
7 Additionally, the court notes that even if the evidence

supporting both the Vicari and Armenta charges was crossadmissible, its highly prejudicial impact would substantially

outweigh any probative value. Ariz. R. Evid. 403.

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Rule 404, and joinder was not permitted under Rule 13.3(a),

severance of the counts relating to Vicari and Armenta was denied

in error.7

Conclusion

¶45 Reversible error occurred with the exclusion of the third

party culpability evidence concerning John Mazure. Further, the

trial court committed prejudicial error in failing to sever the

crimes against Armenta from the Vicari murder.

¶46 Prion’s convictions and sentences are vacated on all

counts and the case is remanded to the trial court for proceedings

consistent with this opinion.

__________________________________

Charles E. Jones

Chief Justice

CONCURRING:

____________________________________

Ruth V. McGregor, Vice Chief Justice

____________________________________

Stanley G. Feldman, Justice
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____________________________________

Thomas A. Zlaket, Justice (retired)

____________________________________

Edward C. Voss, Chief Judge, Court

Appeals, Division One

NOTE: Due to the vacancy on this court, the Honorable

Edward C. Voss, Chief Judge of the Court of Appeals,

Division One, was designated to participate in this case

under article VI, § 3 of the Arizona Constitution.