State v. Bible, 175 Ariz. 549, 858 P.2d
1152 (Ariz. 1993). (Direct Appeal)
Defendant was convicted in the Superior Court,
Coconino County, No. 14105–88, Richard K. Mangum, J., of first-degree
murder, kidnapping, and molestation of a child and was sentenced to
death, and he appealed. The Supreme Court, Feldman, C.J., held that: (1)
defendant was not denied fair trial by pretrial publicity or trial
atmosphere; (2) DNA sample matching meets Frye test; (3) particular
laboratory's probability calculations do not meet the Frye test; (4)
error in admitting probability calculation testimony was harmless; (5)
two aggravating circumstances were not established; but (6) court could
reweigh evidence and affirm death sentence where defendant established
no mitigating factors; and (7) errors in prosecutor's opening statement
and closing argument were harmless. Affirmed.
FELDMAN, Chief Justice.
Defendant Richard Lynn Bible was convicted of first
degree murder, kidnapping, and molestation of a child under fifteen
years of age. He was sentenced to death for the murder conviction and to
consecutive twenty-two year terms for the other convictions. Appeal to
this court is automatic. Ariz.R.Crim.P. 26.15, 31.2(b). We have
jurisdiction pursuant to Ariz. Const. art. VI, § 5(3), Ariz.R.Crim.P.
31, and A.R.S. § 13–4031.
FACTS AND PROCEDURAL HISTORY
Because the guilty verdicts are primarily based on
circumstantial evidence, FN1 we set forth the facts in some detail. In
late May 1987, Defendant was released from prison after serving a
sentence imposed in 1981 for kidnapping and sexual assault. At all times
relevant to this case, Defendant lived in Flagstaff, Arizona. FN1. There
is, of course, no distinction between the probative value of direct and
circumstantial evidence. See, e.g., State v. Harrison, 111 Ariz. 508,
510, 533 P.2d 1143, 1145 (1975); State v. Green, 111 Ariz. 444, 446, 532
P.2d 506, 508 (1975); State v. Harvill, 106 Ariz. 386, 391, 476 P.2d
841, 846 (1970).
In April 1988, the Coconino County Sheriff seized a
dark green and white GMC “Jimmy” (or “Blazer-type”) vehicle in Sedona,
Arizona. The GMC had been used to deliver newspapers. A deputy who drove
it to Flagstaff noticed rubber bands in the GMC, as well as damage to
the left rear quarter panel. Another officer noticed the damaged quarter
panel and saw bags of rubber bands in the vehicle. The Sheriff stored
the vehicle in a fenced impound lot near Flagstaff, close to Sheep Hill.
On June 5, 1988, Defendant stole the GMC from the impound lot. A police
officer saw the vehicle parked in Flagstaff later that day.
The next day, June 6, 1988, shortly after 10:30 a.m.,
the victim, a nine year-old girl, began bicycling from where her family
was staying in Flagstaff to a ranch a mile away. The victim's family
passed her while driving to the ranch. When the child did not arrive at
the ranch, her family began to search and found her bicycle by the side
of the road. Unable to locate the girl, the victim's mother called the
police at 11:21 a.m.
The Flagstaff police arrived within minutes; they
called in a helicopter, set up roadblocks, and alerted the Federal
Bureau of Investigation (“FBI”). The victim's mother told the police
that she saw two vehicles on her way to the ranch. One was a royal blue
Blazer-type vehicle. While at the ranch, she saw this same vehicle going
the opposite direction at a high rate of speed. She described the driver
as a dark-haired, dark-complected Caucasian male, mid-to-late twenties,
possibly wearing a white T-shirt. He had looked at her intently.
That same day, Defendant's brother was at his home
near Sheep Hill. Defendant arrived there shortly before 1:00 p.m.,
driving a dark green or dark silver, white-top Blazer-type vehicle with
a dented left bumper—the vehicle Defendant had stolen. Defendant was
wearing levi pants, a plaid shirt, a camouflage baseball-type cap, and
boots. He told his brother that the Blazer belonged to a friend. After
Defendant left, his brother—who thought that Defendant had been stealing
from him—called the police and described the vehicle.
Shortly thereafter, a detective realized that the
victim's mother's description of the Blazer-type vehicle and its driver
approximated Defendant and the GMC Jimmy. At about 5:00 p.m., the GMC
was discovered missing from the impound lot. At 6:20 p.m., police
officers saw Defendant driving the GMC—although it had been painted a
different color. The officers attempted to stop Defendant, and a high-speed
chase began. When finally cornered, Defendant ran from the vehicle and
hid.
Using a tracking dog, officers found Defendant hiding
under a ledge, camouflaged with twigs, leaves, and branches. When
arrested, Defendant was wearing a “levi-type” jacket, jeans, a plaid
shirt, boots, but no underwear. Defendant also had wool gloves, and
police found a baseball-type cap nearby. Police also found a large
folding knife where Defendant was hiding and another knife in one of his
pockets.
Within hours after his arrest, Defendant confessed to
stealing the GMC the previous day and painting the vehicle two hours
before his arrest, but denied being in the area of the abduction.
Defendant had planned to drive the GMC to Phoenix, but a helicopter had
him “pinned down.” When Defendant was booked, the police confiscated his
clothing. Defendant was incarcerated for the rest of the relevant time
period.
In the GMC, police found a green blanket and numerous
rubber bands but no rubber band bags. The steering column had been cut
open and one piece of metal had fallen to the floorboard. The GMC
contained a case of twenty 50–milliliter bottles of “Suntory” vodka with
two bottles missing. In the console was a wrapped cigar broken in two
places, a “Dutchmaster” cigar wrapper and band were in the ashtray, and
Carnation “Rich” hot chocolate packets were in the vehicle.
Investigators found blood smeared inside and under the GMC, although
testing did not reveal whether the blood was human.
Following a large and unsuccessful police search,
hikers accidentally found the victim's body near Sheep Hill nearly three
weeks after her disappearance. Police secured the area and later
videotaped the scene and processed evidence. The victim's naked body was
hidden under a tree, mostly covered with branches, with her hands tied
behind her back with a shoelace. Police found one of the victim's
sneakers, without a shoelace, near the body. The victim's panties were
in a tree nearby.
An unwrapped, unsmoked cigar with two distinctive
breaks in the middle was on the ground near the body. The cigars near
the body and in the GMC looked very similar, had consistent breaks, and
had identical seals. Microscopic analysis showed that the cigars had
similar thresh cuts and tobacco mixtures. The cigars also had similar
sieve test results and pH values. Although the nicotine values and ash
content were slightly different, the cigars were from the same lot and
were similar to, and consistent with, tobacco residue found in
Defendant's shirt pockets.
An empty ten-pack box of Carnation “Rich” hot
chocolate—matching the packets in the GMC—was near the body. Also nearby
were two empty 50–milliliter “Suntory” vodka bottles—one approximately
fifty feet from the body. Testing, which revealed no fingerprints,
washed away the lot numbers on these empty bottles. In all other
respects, these bottles were identical to the full bottles found in the
GMC.
Rubber bands were everywhere: on a path near the body;
over, on, and under the body; in the tree where the panties were hanging;
near the victim's other clothing; in the brush covering the body; in a
tree above the body; and under a tree where one of the victim's shoes
was found. Visual observation as well as testing revealed that the
rubber bands in the GMC were round rather than oblong and were identical
to those found near the body. A rubber band bag containing a few rubber
bands was found five feet from the body.
A patch of blood-matted grass was near the body.
Testing revealed that this blood was human and was phosphoglucomutase (“PGM”)
subtype 2+, the same subtype as the victim's blood. Luminol spraying
revealed a faint blood trail leading from the blood-matted grass to the
body. Testing showed blood on the top of the branches covering the body.
Near the body, police found a piece of metal that fit
the GMC's steering column. In Flagstaff, at the location where the GMC
was seen parked the day before the victim disappeared, police found
another piece of metal from the vehicle's steering column. The three
metal pieces (found inside the GMC, near the body, and where the GMC had
been parked) fit together like jigsaw puzzle pieces. An investigator
concluded that the three metal pieces were part of the GMC's steering
column.
An autopsy revealed that portions of the body (including
the head and genital area) were severely decomposed, consistent with
having been on Sheep Hill for approximately three weeks. Multiple skull
fractures and a broken jawbone indicated that blows to the head caused
the victim's death. The blood-matted grass near the body was consistent
with the blows being inflicted there. Although the body was naked with
the hands tied, suggesting sexual molestation, no sperm or semen was
found. The physician performing the autopsy took pubic hair and muscle
samples.
Near the body were several clusters of golden brown
hair approximately six to ten inches long. Although the hair found at
the scene appeared to be lighter in color, it was microscopically
similar to the victim's hair and could have come from her. In one of the
locks of hair, an examiner found a pubic-type hair. This pubic-type hair
was similar to Defendant's pubic hair samples. Long brown hair found on
Defendant's jacket, shirt, and in his wallet were similar to the
victim's hair and could have come from her. Investigators found hair
similar to Defendant's on a sheet used to wrap the body, and hair found
on the victim's T-shirt was similar to Defendant's. Hair on a blanket in
the GMC was similar to the victim's, with a total of fifty-seven hairs
in the GMC being similar to the victim's hair.
Some of the hair found near the body, as well as the
hair on Defendant's shirt and in his wallet, was cut on one side and
torn on the other. The investigator had never before seen such a cut/tear
pattern but was able to duplicate the pattern by using the knives
Defendant possessed when arrested as well as other sharp knives. Twenty-one
of the twenty-two hairs on Defendant's jacket had similar cut/tears.
Fibers found at Sheep Hill were identical to the
GMC's seat covers, and similar to fibers from Defendant's jacket lining
and the green blanket in the GMC. Fibers in the lock of hair containing
the pubic-type hair were similar to fibers from Defendant's jacket.
Fibers similar to those from the green blanket in the GMC were located
in the branches covering the body. Microscopically, a green fiber on the
sheet used to wrap the body was similar to fibers from the green blanket.
A blue or purple fiber on the shoelace tying the victim's hands was
similar to the lining in Defendant's jacket.
Investigators found blood on Defendant's shirt, pants,
and boots. The spatter pattern on the shirt was consistent with beating
force. Testing could not determine whether the blood on his boots was
human but revealed that the blood on Defendant's shirt was human and PGM
2+ subtype, the same subtype as the victim's blood. Less than three
percent of the population has PGM 2+ subtype. Because Defendant is PGM
1+ subtype, the blood could not have been his. Testing performed by
Cellmark Diagnostic Laboratories, Inc., showed that the deoxyribonucleic
acid (“DNA”) in the blood on Defendant's shirt and the victim's DNA were
a “match.” Cellmark concluded that the chances were one in fourteen
billion or, more conservatively, one in sixty million that the blood on
Defendant's shirt was not the victim's.
While still in jail for stealing the GMC, Defendant
was charged with first degree murder, kidnapping, and molestation of a
child under the age of fifteen. In April 1990, a jury convicted
Defendant on all charges and Defendant was sentenced to death on the
murder conviction. On appeal, Defendant raises a variety of issues which
we consider in turn. FN2. Defendant has withdrawn his ineffective
assistance of counsel claim. Thus, we do not address that claim and
nothing in this opinion should be construed as precluding any
ineffective assistance of counsel claim Defendant may make in the future.
DISCUSSION
A. Defendant's right to a fair and impartial jury
and a fair trial
1. Whether the trial court erred in refusing to
change venue
a. Background
Approximately fifteen months before trial, Defendant
filed his first motion to change the place of trial because of pretrial
publicity. See Ariz.R.Crim.P. 10.3. This motion summarized dozens of
news items from June 1988 to February 1989. These items state, inter
alia, that Defendant committed other crimes, failed a polygraph test,
and attempted to escape, and refer to other evidence deemed inadmissible
at trial. The court denied this change of venue motion more than a year
before trial. Defendant later moved to reconsider and the court heard
argument the day before trial began. That motion was denied without
prejudice to renew if it became obvious that a fair trial could not be
had. Defendant did not renew the motion. On appeal, Defendant claims
that the judge erred in refusing to change venue.
Because of the extensive pretrial publicity and the
size of Flagstaff and Coconino County (respective populations of
approximately 45,000 and 100,000), nearly all potential jurors had some
knowledge of the case. On February 26, 1990, 187 potential jurors
completed written questionnaires. Of these 187, almost all had read or
heard about the case, approximately two-thirds had discussed the case,
and approximately one-half had an opinion about Defendant's guilt.FN3 Of
the jurors that heard the case, all had read or heard something about
the case, more than half were familiar with state investigators, half
had discussed the case, and two jurors had a “qualified” opinion as to
guilt at the time they answered the jury questionnaire.
FN3. Such opinions were either qualified or
unqualified, with an unqualified opinion defined as fixed, settled, and
unchangeable. A potential juror had a qualified opinion if he or she
could “set aside that opinion and render a verdict based solely on the
evidence presented in court.”
b. Should prejudice be presumed?
Defendant argues that “outrageous” pretrial publicity
dictates that prejudice requiring a change of venue should be presumed—making
a showing of actual prejudice unnecessary. Juror exposure to information
about an offense charged ordinarily does not raise a presumption that a
defendant was denied a fair trial. Murphy v. Florida, 421 U.S. 794, 799,
95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975). If, however, a defendant can
show pretrial publicity so outrageous that it promises to turn the trial
into a mockery of justice or a mere formality, prejudice will be
presumed without examining the publicity's actual influence on the jury.
See, e.g., id.; Rideau v. Louisiana, 373 U.S. 723, 726–27, 83 S.Ct.
1417, 1419–20, 10 L.Ed.2d 663 (1963); State v. Atwood, 171 Ariz. 576,
631, 832 P.2d 593, 648 (1992), cert. denied, 506 U.S. 1084, 113 S.Ct.
1058, 122 L.Ed.2d 364 (1993); State v. Befford, 157 Ariz. 37, 39, 754
P.2d 1141, 1143 (1988).
Clearly, there was extensive pretrial publicity; the
record on appeal contains approximately 130 pretrial news stories. The
frequency of these items, however, varied greatly. Approximately eighty-five
items appeared from June to December 1988. From January 1989 to the
beginning of trial (fourteen months) approximately fifty items appeared.
FN4 Thus, the frequency in 1988 was approximately three items per week
while the frequency in 1989 and 1990 was less than one item per week.
FN4. The items from March 1989 to the time of trial
were not presented to the trial court. They are, however, a part of the
record on appeal. See Order, January 21, 1992. This order also refused
to strike from the record articles published during trial. Because a
motion to change venue due to pretrial publicity must be made before
trial, Ariz.R.Crim.P. 10.3(c), events occurring during trial usually are
not relevant in addressing the motion. Although such events may be
relevant in determining whether a defendant received a fair trial, see
infra § A(2), we do not consider the articles appearing during trial in
assessing Defendant's motion to change venue.
Some reports are duplicates, containing similar
material published in different newspapers; some do not mention
Defendant; and several state that Defendant was not a suspect or not a
strong suspect. For the most part, the reports are factually based, and
nearly all of the factual information reported in the articles was
admitted at trial.
Some items, however, discuss inadmissible evidence,
are inaccurate, or approach the “outrageous” standard used in
determining presumptive prejudice. For example, a June 10, 1988, article
has the Sheriff stating that Defendant “ ‘flunked’ a lie detector test.”
Defendant is described as a convicted “child molester” who committed
“child rape”—incorrect descriptions of his 1981 sexual assault
conviction.FN5 A June 28, 1988, article reported a Phoenix-area
legislator suggesting the death penalty for child molesters “even if it
means the execution ‘of a few innocent people.’ ” The article, however,
added that the suggestion prompted protests, that the proposal was
unconstitutional, and contained another legislator's response
criticizing the suggestion as “ ‘an affront and outrageous' ” and not
reflecting appropriate legislative “ ‘wisdom and leadership.’ ” A
January 28, 1990, article has an inmate stating that Defendant admitted
involvement in the victim's abduction. The article adds, however, that
the inmate recanted and repeatedly changed his story.
FN5. The significance of such errors, however, is
uncertain. Indeed, defense counsel similarly erred when, at hearings in
May and June 1989, he stated that Defendant's 1981 conviction involved
“rape” and made reference to “child rape” and “child rapist.”
There are other articles that might have posed a
serious threat to Defendant's fair trial rights. These items, however,
were months apart and came months before trial began. Cf. Patton v.
Yount, 467 U.S. 1025, 1034, 104 S.Ct. 2885, 2890, 81 L.Ed.2d 847 (1984)
(“That time soothes and erases is a perfectly natural phenomenon,
familiar to all.”). In addition, they are exceptions to the largely
factual information in the great bulk of the news reports. See United
States v. De La Vega, 913 F.2d 861, 865 (11th Cir.1990) (no presumed
prejudice when jurors had knowledge of facts as 330 articles, with few
exceptions, were largely factual), cert. denied, 500 U.S. 916, 111 S.Ct.
2011, 114 L.Ed.2d 99 (1991); United States v. Angiulo, 897 F.2d 1169,
1181 (1st Cir.) (“Although the news coverage was extensive, it largely
was factual in nature, summarizing the charges against the defendants
and the alleged conduct that underlay the indictment.”), cert. denied,
498 U.S. 845, 111 S.Ct. 130, 112 L.Ed.2d 98 (1990).
The burden to show that pretrial publicity is
presumptively prejudicial clearly rests with the defendant and is
“extremely heavy.” Coleman v. Kemp, 778 F.2d 1487, 1537 (11th Cir.1985),
cert. denied, 476 U.S. 1164, 106 S.Ct. 2289, 90 L.Ed.2d 730 (1986). In
varying procedural contexts, appellate courts have found that the issue
of presumed prejudice is a question of fact or a mixed question of law
and fact resulting in standards of review including “manifest error,”
“clearly erroneous,” and others. See id. at 1537 & nn. 17, 18 (citing
cases). Even were we to review the trial court's ruling de novo, however,
this record does not lead us to conclude that prejudice must be presumed.
Due in large part to the findings required, courts
rarely presume prejudice due to outrageous pretrial publicity. Nebraska
Press Ass'n v. Stuart, 427 U.S. 539, 554, 96 S.Ct. 2791, 2800, 49 L.Ed.2d
683 (1976) (Burger, C.J., opinion of the Court). To presume prejudice,
we must necessarily disregard the results of voir dire examination as
well as the circumstances surrounding pretrial proceedings and reach our
own conclusion based on the totality of the circumstances from the
entire record. See Pamplin v. Mason, 364 F.2d 1, 6 (5th Cir.1966). We
must also find that the defendant has shown “inflammatory and
prejudicial pretrial publicity that so pervaded the community as to
render virtually impossible a fair trial before an impartial jury.”
Coleman, 778 F.2d at 1540. In short, to presume prejudice, we must
necessarily decide that the publicity was so unfair, so prejudicial, and
so pervasive that we cannot give any credibility to the jurors' answers
during voir dire affirming their ability to decide the case fairly.
The circumstances in this case fall short of those
rare and unusual cases where this difficult showing has been made. See,
e.g., Rideau, 373 U.S. at 726–727, 83 S.Ct. at 1419–20 (televised
“confession” seen by many potential jurors); Coleman, 778 F.2d at
1538–1543 (overwhelming publicity in county with population of 7000);
Isaacs v. Kemp, 778 F.2d 1482, 1483–84 (11th Cir.1985) (companion case
to Coleman ); United States v. Denno, 313 F.2d 364, 366–67, 372 (2d
Cir.) (en banc) (6–3 decision) (extensive pretrial publicity including
defendant's confession; “[t]he publicity was in its nature highly
inflammatory, in volume great, and accessibility universal.”), cert.
denied, 372 U.S. 978, 83 S.Ct. 1112, 10 L.Ed.2d 143 (1963); cf. Sheppard
v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966) (overwhelming
pretrial publicity, coupled with publicity at trial and outrageous trial
conduct, required reversal). These cases show more in the way of
inaccurate as well as extremely prejudicial pretrial publicity than does
the totality of the record in this case. These cases also demonstrate
the media's successful and sometimes relentless attempt to whip up
hysteria and passion in the community—something the present case lacks.
And at least Sheppard contains something else lacking in this case—the
media successfully influencing law enforcement officers and court
personnel as well as the court itself. See Sheppard, 384 U.S. at 337,
354–58, 362, 86 S.Ct. at 1518–20, 1522.
Nor is the substance of the pretrial publicity in the
present case comparable to that in Rideau, where a local television
station thrice showed the defendant's confession. “In Rideau the
defendant had ‘confessed’ under police interrogation to the murder of
which he stood convicted. A 20–minute film of his confession was
broadcast three times by a television station in the community where the
crime and the trial took place. In reversing, the Court did not examine
the voir dire for evidence of actual prejudice because it considered the
trial under review ‘but a hollow formality’—the real trial had occurred
when tens of thousands of people, in a community of 150,000, had seen
and heard the defendant admit his guilt before the cameras.” Atwood, 171
Ariz. at 631, 832 P.2d at 648 (quoting Murphy, 421 U.S. at 799, 95 S.Ct.
at 2035–36); see also Coleman, 778 F.2d at 1491–1537.
On this record, we cannot conclude that the trial was
“utterly corrupted” by pretrial publicity, Murphy, 421 U.S. at 798, 95
S.Ct. at 2035, and therefore will not presume prejudice, see Atwood, 171
Ariz. at 631, 832 P.2d at 648; State v. LaGrand, 153 Ariz. 21, 34, 734
P.2d 563, 576, cert. denied, 484 U.S. 872, 108 S.Ct. 207, 98 L.Ed.2d 158
(1987); State v. Greenawalt, 128 Ariz. 150, 164, 624 P.2d 828, 842, cert.
denied, 454 U.S. 882, 102 S.Ct. 364, 70 L.Ed.2d 191 (1981).FN6
Accordingly, we turn to the issue of whether the record demonstrates
actual prejudice.
FN6. Nor is this a case where the voir dire record
itself shows that pervasive pretrial publicity so tainted the venire
that jurors' statements under oath regarding their ability to set aside
preconceptions and render a verdict on the evidence must be rejected.
Compare Irvin v. Dowd, 366 U.S. 717, 727–28, 81 S.Ct. 1639, 1645, 6 L.Ed.2d
751 (1961) (268 of 430, or 62 percent, of venire excused for cause due
to fixed opinion of guilt caused court to presume bias and disregard
statements made in voir dire) with Murphy, 421 U.S. at 802–03, 95 S.Ct.
at 2037–38 (26 percent of venire excused for cause due to opinion of
guilt did not provide reason to doubt remaining juror's assurances of
impartiality) and Simmons v. Lockhart, 814 F.2d 504, 511–12 (8th
Cir.1987) (16 percent of venire excused for cause due to fixed opinion
of guilt did not provide reason to doubt remaining juror's assurances of
impartiality), cert. denied, 485 U.S. 1015, 108 S.Ct. 1489, 99 L.Ed.2d
717 (1988). In this case, 23 percent of the venire had a fixed, or
unqualified, opinion of guilt and were excused for cause.
c. Does the record demonstrate that the pretrial
publicity caused actual prejudice likely to have deprived Defendant of a
fair trial?
Absent presumed prejudice, the focus is whether the
potential jurors “could not judge impartially the guilt of the defendant.”
Yount, 467 U.S. at 1035, 104 S.Ct. at 2891. When a motion to change
venue is based on actual prejudice resulting from pretrial publicity,
the defendant must show that the “prejudicial material will probably
result in the [defendant] being deprived of a fair trial.” Ariz.R.Crim.P.
10.3(b); see also LaGrand, 153 Ariz. at 34, 734 P.2d at 576. The purpose
of this rule is to ensure an impartial jury as guaranteed by the United
States and Arizona Constitutions. See U.S. Const. amend. VI, XIV; Ariz.
Const. art. II, §§ 4, 24; Ross v. Oklahoma, 487 U.S. 81, 86, 108 S.Ct.
2273, 2277, 101 L.Ed.2d 80 (1988); Befford, 157 Ariz. at 39, 754 P.2d at
1143. Our review of this issue is for an abuse of discretion. See State
v. Salazar, 173 Ariz. 399, 406, 844 P.2d 566, 573 (1992); cf. Mu'Min v.
Virginia, 500 U.S. 415, ––––, 111 S.Ct. 1899, 1906, 114 L.Ed.2d 493
(1991) (deference to trial court's decision is particularly appropriate
when objective trial judge “sits in the locale where the publicity is
said to have had its effect, and brings to his evaluation of any such
claim his own perception of the depth and extent of news stories that
might influence a juror.”).
Although almost all of the potential jurors had heard
something about the case, the relevant inquiry is the effect of
publicity on a juror's objectivity, not the mere fact of publicity.
LaGrand, 153 Ariz. at 34, 734 P.2d at 576; see also State v. Smith, 160
Ariz. 507, 512, 774 P.2d 811, 816 (1989). After the court excused 111
potential jurors, less than twenty-five percent of the sixty-one member
venire left had a qualified opinion regarding guilt and only two such
individuals served on the trial jury, no member had an unqualified
opinion, and all indicated that they could set aside their qualified
opinions and decide the case based on evidence produced at trial. These
responses undercut Defendant's prejudice claim. See Simmons v. Lockhart,
814 F.2d 504, 510 (8th Cir.1987), cert. denied, 485 U.S. 1015, 108 S.Ct.
1489, 99 L.Ed.2d 717 (1988). The trial took place nearly two years after
the crime and the largely factual pretrial publicity abated during the
year preceding trial, circumstances supporting the court's ruling. See
Murphy, 421 U.S. at 802, 95 S.Ct. at 2037; Atwood, 171 Ariz. at 631, 832
P.2d at 648.
In the past, we also have relied on a fully developed
oral voir dire record in deciding whether pretrial publicity actually
prejudiced a jury. See, e.g., Atwood, 171 Ariz. at 632, 832 P.2d at 649;
Befford, 157 Ariz. at 40, 754 P.2d at 1144; LaGrand, 153 Ariz. at 34,
734 P.2d at 576. In this case, as discussed more fully below, see infra
§ A(3)(a), oral voir dire was not extensive. This lack of extensive oral
voir dire, however, cannot be equated with prejudice in this case.
Although the court denied Defendant's request for
individualized voir dire, defense counsel agreed with questions the
court proposed to raise with the potential jurors in order to clarify
the law, to rehabilitate, and to discover additional information.
Defendant repeatedly had neither additions nor objections to the
proposed questions. When the court indicated that it would not take much
time to qualify the panel, the prosecutor stated “[t]hat sounds
appropriate,” and defense counsel added “I would ask the Court to follow
that.” After voir dire, Defendant passed the panel.
Thus, we do not have an extensive oral voir dire
record. Defendant had the burden of establishing that pretrial publicity
would likely deprive him of a fair and impartial jury. LaGrand, 153 Ariz.
at 34, 734 P.2d at 576. Given the questionnaire answers and the record
before us, Defendant has not shown actual prejudice. Accordingly, we
reject his claim that pretrial publicity caused actual prejudice
requiring a change in venue.
2. Did the atmosphere at trial, coupled with the
pretrial publicity, deprive Defendant of a fair trial?
In an argument closely related to his claim of
presumed prejudice resulting from pretrial publicity, see supra §
A(1)(b), Defendant argues that the conduct of his trial, coupled with
the pretrial publicity, presumptively deprived him of a fair trial, thus
violating his due process rights. News articles indicate that during
trial the victim's parents and friends wore small pink bows in memory of
the victim. Another article states that “[s]everal of the 14 jurors
hearing the case wept as both parents [of the victim] talked. Judge
Richard K. Mangum also wept as he listened.” The sheriff reportedly
“came close to weeping” when testifying. Other articles detail an
outburst by the victim's father. Defendant argues that these in-court
occurrences, coupled with the pretrial publicity discussed above,
created a circus or carnival atmosphere thereby denying him a fair
trial.FN7
FN7. Even with these purported occurrences, and with
very few exceptions, defense counsel failed to object or make any record
at trial. Thus, from the record before us, Defendant simply is unable to
argue “that actual prejudice resulted from the ... actions at the trial,”
Atwood, 171 Ariz. at 633, 832 P.2d at 650, or that those actions had a
demonstrable impact on the jury, Norris v. Risley, 918 F.2d 828, 831
(9th Cir.1990). Thus, we cannot and do not decide whether the conduct of
the trial actually prejudiced the jury.
A fair trial is a fundamental liberty secured by the
United States and Arizona Constitutions. See Ariz. Const. art. II, §§ 4,
24; Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 1692, 48 L.Ed.2d
126 (1976); Cox v. Louisiana, 379 U.S. 559, 562, 85 S.Ct. 476, 479–80,
13 L.Ed.2d 487 (1965); State v. Neil, 102 Ariz. 110, 112, 425 P.2d 842,
844 (1967). Included in this right is the guarantee that the jury
determine guilt or innocence based solely on the evidence admitted at
trial. Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d
751 (1961).
In extremely limited and outrageous cases, prejudice
is presumed when the record reveals that the trial “lacked the solemnity
and sobriety appropriate to a judicial proceeding.” Greenawalt, 128 Ariz.
at 164, 624 P.2d at 842. To presume prejudice, in-court proceedings must
be “ ‘so inherently prejudicial as to pose an unacceptable threat to [defendant's]
right to a fair trial.’ ” Atwood, 171 Ariz. at 633, 832 P.2d at 650 (quoting
Holbrook v. Flynn, 475 U.S. 560, 572, 106 S.Ct. 1340, 1347, 89 L.Ed.2d
525 (1986)). The court examines the pretrial publicity in combination
with the conduct at trial, Sheppard, 384 U.S. at 354–55, 86 S.Ct. at
1518, to determine whether the trial was improperly held in a “circus
atmosphere,” Murphy, 421 U.S. at 799, 95 S.Ct. at 2036, or “carnival
atmosphere,” Sheppard, 384 U.S. at 358, 86 S.Ct. at 1520. Presuming
prejudice in such cases reflects a fundamental and essential element of
our criminal justice system: “that dignity, order, and decorum be the
hallmarks of all court proceedings.” Illinois v. Allen, 397 U.S. 337,
343, 90 S.Ct. 1057, 1061, 25 L.Ed.2d 353 (1970).
Although many cases discuss the doctrine, very few
cases have actually presumed prejudice due to a carnival or circus
atmosphere at trial. The two most noted cases actually presuming
prejudice are Sheppard and Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628,
14 L.Ed.2d 543 (1965): “The trial in Estes had been conducted in a
circus atmosphere, due in large part to the intrusions of the press,
which was allowed to sit within the bar of the court and to overrun it
with television equipment. Similarly, Sheppard arose from a trial
infected not only by a background of extremely inflammatory publicity
but also by a courthouse given over to accommodate the public appetite
for carnival. The proceedings in these cases were entirely lacking in
the solemnity and sobriety to which a defendant is entitled in a system
that subscribes to any notion of fairness and rejects the verdict of a
mob.” Atwood, 171 Ariz. at 631, 832 P.2d at 648 (quoting Murphy, 421 U.S.
at 799, 95 S.Ct. at 2036); see also Sheppard, 384 U.S. at 342–49, 86
S.Ct. at 1512–15 (describing defendant's trial). These cases reflect
trials fundamentally different from the picture painted by the record
here.
Unlike Estes, there is no suggestion that the media
took over the proceedings. And distinguishable from Sheppard, there is
no indication that the court so accommodated the public that the
proceedings were constitutionally unfair. Nor is this a case where any
improper trial conduct, and any corresponding jury impact, accurately
may be gleaned from the transcript. See Scala v. Greyhound Lines, Inc.,
149 A.D.2d 327, 539 N.Y.S.2d 373, 374 (1989) (finding carnival-like
atmosphere where transcript revealed language used at trial “was so
inflammatory and vituperative as to be more appropriate for a barroom
than a courtroom”).
Some news articles of record describe disturbing
events that, given an adequate showing of prejudice, might result in
reversible error. In the abstract, however, they do not require that we
presume prejudice. The mere fact, if it is a fact, that spectators wore
ribbons to trial does not mandate reversal. See Atwood, 171 Ariz. at
634, 832 P.2d at 651. Absent a record, we cannot speculate that such
conduct occurred or, if so, that it was so inherently prejudicial that
despite the lack of objection it posed an unacceptable threat to
Defendant's right to a fair trial. See Holbrook, 475 U.S. at 572, 106
S.Ct. at 1347–48; cf. Norris v. Risley, 918 F.2d 828, 831 (9th Cir.1990)
(spectators wearing “Women Against Rape” buttons, which the record
revealed jurors saw and read, impermissibly “constituted a continuing
reminder that various spectators believed [defendant's] guilt before it
was proven”). Similarly, on the record before us, the crying and the
outburst by the victim's father do not mean that we must presume that
Defendant did not receive a fair trial. See infra § L; see also State v.
Naucke, 829 S.W.2d 445, 460 (Mo.), cert. denied, 506 U.S. 960, 113 S.Ct.
427, 121 L.Ed.2d 348 (1992); State v. Grice, 109 N.J. 379, 537 A.2d 683,
687 (1988).
The information before us is essentially no more than
a series of newspaper articles purporting to generally describe what
happened in the courtroom. These articles do not permit us to reach any
conclusion about events that actually occurred in the courtroom. Indeed,
they do no more than establish that the articles were printed. We do not,
and cannot, accept as conclusive any statement contained in the articles.
The record does not show that the trial court failed to control the
courtroom, and we will not speculate about what may have occurred. To
establish what actually occurred in the courtroom, applicable procedural
and evidentiary requirements must be met.
In both Estes and Sheppard, the convicted defendant
submitted evidence of what had occurred at trial. The record in this
case, however, contains no evidence establishing what happened in the
courtroom or what jurors might have seen or understood. We cannot know
or presume to know what was conveyed to the jurors from sources other
than witnesses or what effect any of this might have had on the jurors.
We cannot accept as fact descriptions contained in news articles. Trial
counsel made no record about the courtroom events through statements or
affidavits by spectators, lawyers, or reporters—save the news articles.
On this record, or, to be more precise, in its absence, we entertain no
presumption that Defendant was denied a fair trial. See Atwood, 171 Ariz.
at 633–34, 832 P.2d at 650–51; State v. Tison, 129 Ariz. 526, 534–35,
633 P.2d 335, 343–44 (1981), cert. denied, 459 U.S. 882, 103 S.Ct. 180,
74 L.Ed.2d 147 (1982); Greenawalt, 128 Ariz. at 164, 624 P.2d at 842.
On the other hand, we cannot make any finding as to a
lack of prejudice. Given the judge's order forbidding the lawyers from
speaking to the jurors after trial,FN8 coupled with the lack of other
evidence, we are left in the dark as to the events that actually took
place. We must leave it to post-conviction relief proceedings to
ascertain these events and their possible effect on the trial. FN8. On
appeal, Defendant does not challenge the propriety or authority of that
order.
By rejecting Defendant's allegations, we do not
signify our approval of the conduct alleged. A trial foreseeably
engendering deep passions is no place for publicizing the emotions of
the population. Trial judges are to take measures to ensure that those
who come to see the trial are spectators, not advocates, and that in the
courthouse spectators carry no pamphlets, hold no signs, and do nothing
to pressure, or stir the emotions of, the jurors. In our justice system,
the public has the right to watch the trial—not participate in it or
indicate a desired outcome. The trial judge must do whatever is
necessary to control the courthouse and protect the jury from emotional
reactions by spectators or witnesses. The judge should strictly forbid
tactics that may influence the jury and, in the strongest manner
possible, deal with those who attempt to do so. We hold only that, on
this record, we cannot tell what happened or what effect any occurrence
had. We refuse to speculate. Thus, on this record, we find no error.FN9
FN9. We reject the claim that Defendant and defense
counsel were improperly intimidated and harassed. Although in extreme
cases, intimidation and harassment can require a new trial, the record
here does not support such a claim. Cf. State v. Bush, 148 Ariz. 325,
328–31, 714 P.2d 818, 821–24 (1986) (outrageous intimidation—including
assault of defendant, witness intimidation resulting in recantation, and
threats against defense counsel—coupled with ineffective assistance of
counsel required new trial).
We also find no error in the security measures taken.
Defendant had been threatened and had attempted to escape. The added
security consisted primarily of a metal detector used outside the
courtroom. Because there was a reasonable basis for this added security,
and the measures taken did not negate the presumption of innocence, we
find no error. See, e.g., Greenawalt, 128 Ariz. at 164, 624 P.2d at 842;
State v. Wilson, 113 Ariz. 363, 366, 555 P.2d 321, 324 (1976).
3. Did the trial court err in the manner in which
voir dire was conducted?
Defendant claims that voir dire should have been
individualized and in camera; that oral voir dire was inadequate; and
that his rights to be present and to counsel were violated during voir
dire. We address these claims in turn.
a. Voir dire and jury selection methods used in
this case
Months before trial, the parties suggested that voir
dire initially be conducted by a written questionnaire. Defendant later
argued that a questionnaire would be helpful. Defense counsel wrote the
questionnaire and submitted it to the prosecutor and the court. The
court ultimately used Defendant's questionnaire “as submitted with no
changes.”
The questionnaire contained fifty-six questions with
numerous subparts covering a total of thirty pages. The questions
searched the potential jurors' knowledge of the case and the source of
such information. Questions addressed the news media and perceptions of
media accuracy, law enforcement, scientific testing, and the death
penalty, as well as familiarity with Defendant and potential witnesses.
The questionnaire also discussed the standard of proof and the jurors'
frame of mind if they were to “sit in judgment.” Each potential juror
filled out and signed their individual questionnaire under oath and in
the court's presence.
Defense counsel had “no objection to the Judge
deciding who should be removed for cause.” After reviewing the completed
questionnaires, the trial court, sua sponte, struck 106 of the 187
venire members for cause. On the parties' motions, the court struck
several other venire members for cause. Fifteen additional venire
members were excused for personal reasons or did not show up, leaving
sixty-one individuals for jury selection.
The court ruled that, absent good cause, the court
would conduct oral voir dire. Ariz.R.Crim.P. 18.5(d). Before oral voir
dire, the judge met with counsel to discuss the questions he proposed
asking the potential jurors. Defense counsel did not object to the
court's proposals. The court conducted a brief, general oral voir dire
of the panel of sixty-one. A panel of thirty-four then was drawn. This
panel answered the court's voir dire questions; both parties passed the
panel and exercised their peremptory strikes. Selecting the panel of
thirty-four, oral voir dire, and peremptory strikes took forty-six
minutes. With this background, we address Defendant's arguments.
b. Did the trial court err in not permitting
individualized and in camera voir dire examination?
Defendant requested individual, or small group, voir
dire in camera. Voir dire examination of a juror or jurors apart from
the others is designed to prevent panel contamination by inflammatory
answers. Ariz.R.Crim.P. 18.5(d) comment; see also Mu'min, 500 U.S. at
––––, 111 S.Ct. at 1905; cf. State v. Clabourne, 142 Ariz. 335, 344, 690
P.2d 54, 63 (1984) (comment by potential juror that “the entire defense
was a lot of baloney” did not impermissibly contaminate the panel). In
camera voir dire, most useful in cases involving massive publicity or
“unusually sensitive subjects,” is designed to encourage full disclosure
“when the prospective juror might be embarrassed to confess his true
opinion before an audience.” Ariz.R.Crim.P. 18.5(d) comment. Either
procedure can be very useful in appropriate cases. Whether to conduct
such voir dire, however, is left to the trial court's discretion. See
Ariz.R.Crim.P. 18.5(d).
In this case, the written questionnaire addressed
many of the questions that might normally militate in favor of
individualized, panel, or in camera voir dire. Defendant cites no
“contaminating” comment made during oral voir dire, and we find none.
Nor can we say that any other reason required in camera voir dire.
Whatever the risk of the procedure used, the danger did not materialize.
Thus, the trial court did not abuse its discretion in denying
Defendant's request. See, e.g., Conner v. State, 580 N.E.2d 214, 217
(Ind.1991), cert. denied, 503 U.S. 946, 112 S.Ct. 1501, 117 L.Ed.2d 640
(1992); Hansen v. State, 592 So.2d 114, 126 (Miss.1991), cert. denied,
504 U.S. 921, 112 S.Ct. 1970, 118 L.Ed.2d 570 (1992); State v. Whitfield,
837 S.W.2d 503, 509 (Mo.1992).
c. Was the scope of oral voir dire insufficient to
help ensure an impartial jury?
Defendant argues that the scope of oral voir dire was
inadequate to secure an impartial jury. The questionnaire, the use of
which was entirely appropriate in this case, constituted nearly all of
the voir dire. The questionnaire not only revealed a great deal of
relevant information from a large panel of prospective jurors but also
enabled the trial judge to avoid infecting jurors with answers that
necessarily would have been given to the same questions if propounded
during oral voir dire.
Given the nature of the case, including extensive
pretrial publicity and a small population, it might have been
appropriate to have a more extensive follow-up through oral voir dire.
At trial, however, Defendant was content with the extent of the oral
voir dire. Defendant had a full opportunity to submit voir dire
questions and to discuss the court's proposed questions and statements.
Defense counsel agreed with the trial court's proposed questions and
statements and had no additional matters for the court to discuss with
the panel. Defense counsel drafted and helped administer the
questionnaire, had an opportunity to provide additional questions and
statements for the panel, and passed the panel. On this record,
Defendant is precluded from raising any claim regarding the scope of
voir dire. See, e.g., State v. Walton, 159 Ariz. 571, 580–81, 769 P.2d
1017, 1026–27 (1989), aff'd, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d
511 (1990); State v. Ortiz, 131 Ariz. 195, 200, 639 P.2d 1020, 1025
(1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2259, 72 L.Ed.2d 863
(1982); State v. Arnett, 119 Ariz. 38, 50, 579 P.2d 542, 554 (1978). To
hold otherwise would eliminate our preclusion rule.FN10 There are
important and valid reasons for such a rule. State v. Gendron, 168 Ariz.
153, 155, 812 P.2d 626, 628 (1991). FN10. Defendant is not, of course,
precluded from arguing fundamental error. See infra § A(3)(e).
d. Did the court deny Defendant his right to be
personally present and his right to counsel during voir dire?
Defendant was present during much of the time the
prospective jurors filled out the questionnaire. However, after
introductory statements by counsel, Defendant, his attorney, and the
prosecutor left. After they left, the trial judge answered prospective
jurors' questions on the record. Defendant now alleges that the judge
should have advised him of the specific exchanges with the prospective
jurors. Failing to do this, Defendant argues, violated his rights to be
present and to counsel during voir dire and is reversible error.
Under the United States and Arizona Constitutions, a
criminal defendant has a right to be present during voir dire. State v.
Collins, 133 Ariz. 20, 22–23, 648 P.2d 135, 137–38 (Ct.App.1982);
Ariz.R.Crim.P. 19.2. A defendant, however, may waive this right “by
voluntarily absenting himself” from voir dire. Ariz.R.Crim.P. 9.1;
accord Allen, 397 U.S. at 342–43, 90 S.Ct. at 1060–61; State v. Tudgay,
128 Ariz. 1, 2–3, 623 P.2d 360, 361–62 (1981). In this case, Defendant
waived his right to be present during voir dire.
When the jury questionnaire was being filled out, the
court noted that the attorneys had discussed leaving and stated: “I will
stay here in case there are some questions, and that would be simply
like what does this question mean.” After answering some initial
questions, the court stated “[i]f counsel and the defendant want to
leave at this time, you may. I will stay here in case there is another
question of some kind.” Defendant and all counsel then left.FN11 Not
surprisingly, after these individuals left, the trial court did answer
some questions.
FN11. At least from defense counsel's perspective,
there was a reason for this exodus. The day before the jury
questionnaire was completed, the court discussed with the attorneys the
procedure to be used, and explained that the procedure would take less
than an hour, that the court would remain to answer questions, and that
the parties were free to stay or go as they wished. Defendant's attorney
stated he would remain if the prosecutor stayed, but that he did not
want Defendant “sitting there for an hour ... because I think he's not
gonna make a good impression sitting there for an hour.... I don't see
any need for him to be there [after the introductory statements].”
Defendant could have remained. The judge gave
Defendant personal notice of the proceedings and told him he had a right
to remain and that the proceedings would continue if he left. See State
v. Perez, 115 Ariz. 30, 31, 563 P.2d 285, 286 (1977) (citing cases);
State v. Armenta, 112 Ariz. 352, 353, 541 P.2d 1154, 1155 (1975) (citing
authority). By voluntarily leaving, Defendant waived his right to be
present. Ariz.R.Crim.P. 9.1; see also Allen, 397 U.S. at 342–43, 90 S.Ct.
at 1060–61; Tudgay, 128 Ariz. at 2–3, 623 P.2d at 361–62. Thus, we
reject the claim that Defendant was denied his right to be present
during voir dire. For the same reasons, we reject Defendant's contention
that he was denied his right to counsel when his attorney also left.
We similarly reject Defendant's claim that the trial
court improperly communicated with the venire when the questionnaire was
completed. True, it is improper for a trial judge to communicate with
the venire unless the defendant and defense counsel have been notified
and are given the opportunity to be present. See State v. Koch, 138 Ariz.
99, 107, 673 P.2d 297, 305 (1983); State v. Mata, 125 Ariz. 233, 240–41,
609 P.2d 48, 55–56, cert. denied, 449 U.S. 938, 101 S.Ct. 338, 66 L.Ed.2d
161 (1980); see also Perkins v. Komarnyckyj, 172 Ariz. 115, 117–18, 834
P.2d 1260, 1262–63 (1992). As required by these cases, however, both
Defendant and his attorney were notified and given an opportunity to be
present when the questionnaires were completed. A trial judge is not
required to issue a writ to keep a defendant and defense counsel from
voluntarily leaving a proceeding. Nor does the record show any
impropriety in the trial judge's responses to the questions raised after
Defendant and defense counsel left the room. Thus, we reject Defendant's
claims.
e. Did the voir dire procedures constitute
fundamental error?
As discussed, Defendant did not object at trial to
much of the claimed error surrounding voir dire. On appeal, however,
Defendant argues that the claimed error was fundamental. Because
Defendant claims fundamental error on many issues discussed in this
opinion, we detail the basic fundamental error principles.
Absent fundamental error, a party usually cannot
raise error on appeal unless a proper objection was made a trial. “This
principle also applies to constitutional error. Only fundamental error
... may be raised for the first time on appeal.” State v. Holder, 155
Ariz. 83, 85, 745 P.2d 141, 143 (1987) (citations omitted); see also
Ariz.R.Evid. 103(d). Fundamental error is “error going to the foundation
of the case, error that takes from the defendant a right essential to
his defense, and error of such magnitude that the defendant could not
possibly have received a fair trial.” State v. Hunter, 142 Ariz. 88, 90,
688 P.2d 980, 982 (1984). To be fundamental, the error “must be clear,
egregious, and curable only via a new trial.” Gendron, 168 Ariz. at 155,
812 P.2d at 628.
We examine the prejudicial nature of unobjected-to
error in light of the entire record. See State v. Schaaf, 169 Ariz. 323,
327, 819 P.2d 909, 913 (1991). Because this inquiry is fact intensive,
the same error may be fundamental in one case but not in another. Cf.
State v. Allen, 157 Ariz. 165, 171–72, 755 P.2d 1153, 1159–60 (1988). By
definition, fundamental error cannot be harmless error. See State v.
Thomas, 130 Ariz. 432, 436 n. 1, 636 P.2d 1214, 1218 n. 1 (1981); cf.
State v. Amaya–Ruiz, 166 Ariz. 152, 170, 800 P.2d 1260, 1278 (1990),
cert. denied, 500 U.S. 929, 111 S.Ct. 2044, 114 L.Ed.2d 129 (1991).
Given the high profile of this case, the passions it
stirred, and the pretrial publicity, if requested by Defendant, the
court might well have conducted a more substantial oral voir dire. The
record, however, does not show that any of the jurors seated
demonstrated a closed mind; they all stated they could follow the
court's instructions and decide the case on the evidence. While such
statements are not always conclusive and are to be tested by voir dire,
Irvin, 366 U.S. at 727–28, 81 S.Ct. at 1645, on this record rejecting
these statements would require sheer speculation on our part.
Although not lengthy, there was some oral response
from each member of the panel of thirty-four, allowing the parties to
briefly observe their demeanor. See State v. Cook, 170 Ariz. 40, 54, 821
P.2d 731, 745 (1991), cert. denied, 506 U.S. 846, 113 S.Ct. 137, 121
L.Ed.2d 90 (1992). Although two jurors had qualified opinions regarding
guilt, one was drawn as an alternate. The other juror, who actually
decided the case, indicated she could set aside her qualified opinion
and decide the case on the trial evidence. Nothing of evidentiary value
in this record shows that error, if any, in voir dire deprived Defendant
of a fair trial. We find no fundamental error. See, e.g., Cook, 170 Ariz.
at 50, 821 P.2d at 741; Gendron, 168 Ariz. at 155, 812 P.2d at 628;
State v. Valdez, 160 Ariz. 9, 14, 770 P.2d 313, 318 (1989).FN12
FN12. By failing to find fundamental error, we do not
suggest that the oral voir dire in this case was a paradigm for cases
where publicity, or any other factor, creates a significant danger of
juror bias. Rather, we commend the approach used by the trial court in
United States v. Maldonado–Rivera, 922 F.2d 934 (2d Cir.1990), cert.
denied, 501 U.S. 1211, 111 S.Ct. 2811, 115 L.Ed.2d 984 (1991): In
conducting the voir dire here, the court prepared a written
questionnaire consisting of 65 questions tailored to the facts of this
case. The court then orally asked several general questions relating to
pretrial publicity. The defendants were permitted to submit proposed
supplemental questions, and the court gave each defense attorney 15
minutes to ask “any legitimate question” of individual prospective
jurors. Maldonado–Rivera, 922 F.2d at 971. In cases where there is a
heightened danger of juror prejudice or bias, relying almost entirely on
a written questionnaire frequently may not be adequate.
4. Did the trial judge commit fundamental error in
failing to strike certain trial jurors? [29] Defendant argues that the
trial judge erroneously failed to sua sponte strike twelve of the
fourteen trial jurors—twelve jurors and two alternates—for cause. At
trial, Defendant did not object to or challenge any of these jurors for
cause.FN13 Thus, we apply the stringent standard of fundamental error.
See supra § A(3)(e). FN13. Before trial, Defendant moved to strike
several venire members for cause. The trial court granted this motion in
part and denied it in part. Defendant does not challenge that ruling on
appeal. None of the venire members challenged in Defendant's motion
ultimately served as jurors.
Defendant's objections on appeal fall into a discrete
number of categories. Two of the jurors had “qualified” opinions as to
guilt, meaning that they could “set aside that opinion and render a
verdict based solely on the evidence presented in court.” Similarly,
several jurors indicated that, for one reason or another, they would
find it difficult but not impossible to be fair and impartial. Each of
these jurors, however, believed that they could set aside their feelings,
keep an open mind, sit fairly and impartially, and base their verdict
solely on the evidence presented at trial. Failure to strike these
jurors was neither error nor fundamental error. See, e.g., Thomas, 130
Ariz. at 436, 636 P.2d at 1218; Tison, 129 Ariz. at 533, 633 P.2d at
342; State v. Narten, 99 Ariz. 116, 122, 407 P.2d 81, 85 (1965), cert.
denied, 384 U.S. 1008, 86 S.Ct. 1985, 16 L.Ed.2d 1021 (1966).
Several jurors were familiar with the area where the
victim's body was found or with the prosecution team, the defense team,
law enforcement personnel, witnesses, the trial judge, or even the
victim's family. This, without more, does not require disqualification,
and failure to sua sponte strike these jurors was neither error nor
fundamental error. See, e.g., State v. Hill, 174 Ariz. 313, 319–21, 848
P.2d 1375, 1381–83 (1993); State v. Woolery, 93 Ariz. 76, 82, 378 P.2d
751, 756 (1963); State v. Brosie, 24 Ariz.App. 517, 521, 540 P.2d 136,
140 (1975), aff'd on other grounds, 113 Ariz. 329, 553 P.2d 1203 (1976).
Three jurors knew something about DNA testing with
varying opinions as to reliability. Neither reason nor authority
supports the proposition that mere knowledge about relevant scientific
testing procedures disqualifies a potential juror, let alone constitutes
fundamental error. Although one juror had been a juror in a murder case
where a guilty verdict was returned, prior jury duty in a similar but
unrelated case does not automatically disqualify a juror. See State v.
Sorrell, 95 Ariz. 220, 223, 388 P.2d 429, 431 (1964); see also 47 Am.Jur.2d
Jury § 309 (1969).
Finally, in answering the questionnaire, one juror
indicated that he would not treat the testimony of police officers as he
would other witnesses, did not understand that the State had the burden
of proof for each element, and did not agree with the presumption of
innocence. This juror, however, indicated that he could fairly and
impartially listen to and weigh the evidence and render a verdict in
accordance with the law. He also understood that the State had the
burden of proof beyond a reasonable doubt. Furthermore, this juror
expressed no disagreement with the presumption of innocence, the jury's
duty to judge credibility, or the State's burden to prove guilt beyond a
reasonable doubt. Although follow-up oral inquiry of this juror would
have been appropriate, we find no fundamental error in allowing this
juror to sit. See, e.g., Cook, 170 Ariz. at 50, 821 P.2d at 741; Gendron,
168 Ariz. at 155, 812 P.2d at 628; Valdez, 160 Ariz. at 14, 770 P.2d at
318.
In sum, it might have been appropriate to have
excused some of these jurors or at least questioned them further.
Defendant asked for neither. From the record, we cannot say that it was
either error or fundamental error for the judge to have failed to sua
sponte strike the twelve jurors for cause.
5. Failure to sequester the jury
Defendant claims error because the trial court did
not sequester the jury. When trial began, defense counsel did not “see
any need for asking for sequestration of the jury.” Nor did Defendant
request sequestration during trial. Thus, we again review for
fundamental error.
Sequestration is discretionary. Atwood, 171 Ariz. at
632, 832 P.2d at 649. Defendant does not allege juror misconduct.
Accordingly, to prove error, Defendant must show, in addition to
publicity, that the jurors did not follow the trial court's admonitions.
Tison, 129 Ariz. at 551, 633 P.2d at 360.
When trial began, the judge admonished the jurors not
to “read, listen to, or observe” any news reports of the trial. Nearly
three weeks into trial, however, the court admonished the press by
stating “[o]ne of the jurors reports the jurors were recognizably seen
in some footage that was aired.” It may be that the juror saw the
footage. It also may be that a friend or relative saw the footage and
informed the juror. Because Defendant did not request that the juror be
questioned, we do not know. Nor do we know the substance of the footage.
We will not speculate; on the record before us, we find no error.
6. Failure to have a juror drawn as an alternate
During trial, witness Robert Emerick, an Arizona
Department of Corrections counselor, stated in open court that he knew a
juror. The court and defense counsel questioned that juror in open court,
and the court found that the juror could continue to sit. Defendant
later moved to have the juror drawn as an alternate. After finding that
Mr. Emerick's testimony was unrebutted, that the juror disclosed his
relationship with the witness in his jury questionnaire, and that the
relationship would not influence the juror, the court denied the motion.
This juror later became the jury foreman. Defendant appeals the denial
of this motion.
We construe Defendant's motion as a challenge for
cause. Ariz.R.Crim.P. 18.4(b). Such a challenge may be made after trial
begins, provided the grounds for the challenge were not known earlier.
Id.; see also Cook, 170 Ariz. at 53, 821 P.2d at 744. A ruling on a
challenge for cause will be affirmed absent an abuse of discretion. Cook,
170 Ariz. at 54, 821 P.2d at 745.
Although the juror's questionnaire disclosed that he
knew many individuals (including law enforcement officers), it did not
disclose his knowledge of Mr. Emerick. The court's error in finding that
the juror made such a disclosure can be attributed, at least in part, to
defense counsel's representation that the juror “indicated on his
original questionnaire that he did know Mr. Emerick.” Although a juror's
failure to disclose knowledge of a witness is a serious matter, it does
not automatically require disqualification. See, e.g., State v.
MacDonald, 110 Ariz. 152, 153–54, 515 P.2d 1172, 1173–74 (1973); State
v. Garcia, 102 Ariz. 468, 469–71, 433 P.2d 18, 19–21 (1967); State v.
Ortiz, 117 Ariz. 264, 267–68, 571 P.2d 1060, 1063–64 (Ct.App.1977). In
deciding whether a juror may continue to sit in this situation, the
court must consider the relationship between the witness and the juror,
whether the juror will properly assess the testimony, the importance of
the testimony, and whether the testimony is disputed. See MacDonald, 110
Ariz. at 153–54, 515 P.2d at 1173–74; Garcia, 102 Ariz. at 469–71, 433
P.2d at 19–21; Ortiz, 117 Ariz. at 267, 571 P.2d at 1063. The court must
make a searching inquiry of the juror to apply these factors. MacDonald,
110 Ariz. at 154, 515 P.2d at 1174.
Defense counsel conceded that the trial court
conducted “a rather in depth voir dire of the juror” after the
disclosure. Although friends in high school and for two years in college,
the witness and the juror had not spent time together for at least five
years before trial. The juror stated that he would assess Mr. Emerick's
testimony as he would any other witness and that he had not discussed
with Mr. Emerick anything relating to the case or Mr. Emerick's work.
Although important, as the trial court found, Mr. Emerick's testimony
was unrebutted and was not at the core of the State's case. In sum,
although it would have been better to have selected the juror as an
alternate, cf. Ariz.R.Crim.P. 18.5(h), on these facts, the court did not
abuse its discretion in denying Defendant's motion, see MacDonald, 110
Ariz. at 154, 515 P.2d at 1174; Garcia, 102 Ariz. at 470–71, 433 P.2d at
20–21; Ortiz, 117 Ariz. at 268, 571 P.2d at 1064.
B. Motion to exclude evidence of other crimes,
wrongs, or acts
Defendant moved to exclude evidence of his 1981
sexual assault and kidnapping convictions. Following a hearing, the
court found the evidence admissible to show identity but not emotional
propensity. The court admitted the evidence at trial, which consisted
primarily of testimony by the victim of the 1981 incident, and gave a
limiting jury instruction. Defendant appeals the denial of his motion.
Generally, evidence of other acts is inadmissible to
prove the defendant's character. See State v. Roscoe, 145 Ariz. 212,
216, 700 P.2d 1312, 1316 (1984), cert. denied, 471 U.S. 1094, 105 S.Ct.
2169, 85 L.Ed.2d 525 (1985). Nor can such evidence be admitted “to show
action in conformity therewith.” Ariz.R.Evid. 404(b). Other act evidence
may be admissible, however, “for other purposes, such as proof of ...
identity.” Id.
To be admissible under the 404(b) identity exception,
the state must show: (1) that the defendant committed the prior offense,
and (2) that “the prior offense was not too remote in time, was similar
to the offense charged and was committed with a person similar to the
prosecuting witness in the case being tried.” Roscoe, 145 Ariz. at 217,
700 P.2d at 1317 (citing cases). Because the trial court is best able to
evaluate these requirements and balance the probative value and
prejudicial effect of such evidence, we review for an abuse of
discretion. State v. Brown, 125 Ariz. 160, 161–62, 608 P.2d 299, 300–01
(1980).
Defendant admits his 1981 sexual assault and
kidnapping convictions. Accordingly, the first Roscoe requirement is
satisfied. Although Defendant committed those offenses eight years
before the victim's abduction, he served a seven-year sentence for the
1981 convictions. The instant crime occurred approximately one year
after Defendant's release from prison. Thus, the prior offense was not
too remote in time. See, e.g., Roscoe, 145 Ariz. at 217, 700 P.2d at
1317 (finding offense committed six months after release from serving
six-month prison term not too remote); State v. Superior Court, 129 Ariz.
360, 361–62, 631 P.2d 142, 143–44 (Ct.App.1981) (finding offense
committed eighteen months after release from serving twenty-seven month
prison term not too remote).
The 1981 convictions and the 1988 abduction had
numerous similarities, including: * both incidents occurred in the Sheep
Hill area; * both incidents involved a vehicle; * both victims were
Caucasian female minors; * both victims had their clothes removed; *
both victims had their hands tied behind their backs; * both offenses
occurred during daylight hours; * evidence of vodka consumption in both
incidents; and * evidence of the use of a knife in both incidents.
Concededly, differences between the crimes do exist.
Defendant knew his 1981 victim, but apparently did not know the victim
in this case. In addition, the 1981 incident involved a seventeen-year-old
victim, while the victim in this case was nine years old. This
difference, however, does not compel exclusion of the evidence. See
Roscoe, 145 Ariz. at 218, 700 P.2d at 1318 (evidence properly admitted
with seven-year-old victim when prior victim was seventeen years old).
“Absolute identity in every detail cannot be expected. Where an
overwhelming number of significant similarities exist, the evidence of
the prior act may be admitted.” Roscoe, 145 Ariz. at 218, 700 P.2d at
1318. The term “overwhelming” does not require a mechanical count of the
similarities but, rather, a qualitative evaluation. Are the two crimes
so similar, unusual, and distinctive that the trial judge could
reasonably find that they bear the same signature? Id. at 217, 700 P.2d
at 1317. If so, the evidence may be admissible and any dissimilarities
go to its weight. Id. at 218, 700 P.2d at 1318.
The evidence in this case shows enough of an arguable
“signature” to find that the trial judge did not abuse his discretion in
holding that the 1981 convictions were admissible to show identity under
404(b). Nor do we believe that the evidence was so unfairly prejudicial
that trial court abused its discretion under Ariz.R.Evid. 403. See State
v. Schurz, 176 Ariz. 46, 52, 859 P.2d 156, 162 (1993). Thus, we find no
error in admitting evidence of Defendant's 1981 convictions.
C. Admission of, and foundation for, DNA evidence
1. The background of DNA testing
Arresting officers noticed blood on Defendant's shirt.
During the next few months, Cellmark Diagnostic Laboratories, Inc. (“Cellmark”)
performed DNA testing on this blood as well as the victim's bone and
muscle samples. Test results showed a match between the DNA in the blood
on Defendant's shirt and the DNA in the victim's muscle sample. Further
testing in 1990 showed that the DNA in the blood on the shirt did not
match Defendant's DNA. The State moved for a Frye hearing to determine
the admissibility of the DNA test results. See United States v. Frye,
293 F. 1013 (D.C.Cir.1923). After an extensive hearing, the trial court
found that the DNA testing performed was generally accepted in the
relevant scientific community and admitted the results at trial.
Defendant challenges this finding.
For criminal cases, DNA testing is a very recent
advent. In October 1988, an appellate court first considered the
admissibility of DNA testing in the criminal context. See William C.
Thompson & Simon Ford, DNA Typing: Acceptance and Weight of the New
Genetic Identification Tests, 75 Va.L.Rev. 45, 46 n. 4 (1989) (“Thompson
& Ford, DNA Typing ”) (citing Andrews v. State, 533 So.2d 841 (Fla.Ct.App.1988),
review denied, 542 So.2d 1332 (Fla.1989)). In the years following
Andrews, courts in more than forty states have considered DNA evidence
in hundreds of cases. National Research Council, Summary, DNA Technology
in Forensic Science 21–22 (1992) (“NRC Summary, DNA Technology ”).
DNA contains the genetic code for all living
organisms and is present in every cell containing a nucleus. Christopher
G. Shank, Note, DNA Evidence in Criminal Trials: Modifying the Law's
Approach to Protect the Accused from Prejudicial Genetic Evidence, 34
Ariz.L.Rev. 829, 829, 832 n. 27 (1992). DNA is composed of several
component parts, including four different base pairs. See State v.
Cauthron, 120 Wash.2d 879, 846 P.2d 502, 508 (1993). The precise
sequence of these base pairs in certain DNA segments determines genetic
traits. Id. The segments of DNA that determine these genetic traits are
called alleles. State v. Pennell, 584 A.2d 513, 516 (Del.Sup.Ct.1989).
The basis for DNA identity testing is the well-accepted
proposition that “except for identical twins each individual has a
unique overall genetic code.” William C. Thompson & Simon Ford, DNA
Testing: Debate Update, 28 Trial, Apr. 1992, at 52, 52 (“Thompson & Ford,
DNA Testing” ). Present technology, however, does not permit testing of
the entire DNA sequence but only of discrete, very limited DNA segments.
“Because 99.9% of the DNA sequence in any two people is identical,” D.H.
Kaye, The Admissibility of DNA Testing, 13 Cardozo L.Rev. 353, 354
(1991), accurate analysis is vital to determine whether there is a match
of the remaining 0.1 percent of the DNA sequence from the samples
compared.
Stated very simply,FN14 there are three general steps
in DNA testing: FN14. We make no attempt to add to the extensive
forensic or scientific literature on the subject. Our explanation of DNA
theory, testing procedures, and statistical analysis is greatly over-simplified.
We provide only a sketch of the technology insofar as it is relevant to
the legal issues in this case and conclusions we draw. For far more
detailed descriptions, see Commonwealth v. Curnin, 409 Mass. 218, 565
N.E.2d 440, 445–48 (1991); State v. Vandebogart, 136 N.H. 365, 616 A.2d
483, 486–88 (1992); Cauthron, 846 P.2d at 508–10; John W. Strong, et
al., 1 McCormick on Evidence § 205, at 896–902 (4th ed. 1992); Thompson
& Ford, DNA Typing, 75 Va.L.Rev. at 64–76.
1. Creating a DNA “print” or “profile” of a sample;
2. Determining whether the prints or profiles of different samples
match; and 3. If samples match, computing the probability of a random
match. NRC Summary, DNA Technology at 6, 8. Cellmark used restriction
fragment length polymorphism (“RFLP”) testing in this case.FN15 Cellmark,
Lifecodes Corporation, and the FBI are the three major laboratories
currently performing RFLP DNA testing in the United States. Thompson &
Ford, DNA Testing at 52. Testing protocols for these laboratories are
not identical. NRC Summary, DNA Technology at 15; see also State v.
Anderson, 853 P.2d 135, 142–43 (N.M.Ct.App.), cert. granted, 115 N.M.
145, 848 P.2d 531 (1993). FN16
FN15. Polymerase chain reaction technology was not
used in this case. Thus, we do not consider any additional or differing
issues surrounding that technology. FN16. Nor do testing laboratories
have identical accuracy records. See Thompson & Ford, DNA Testing at 55
(discussing study where many matching samples, using the FBI's standards,
did not match); Thompson & Ford, DNA Typing, 75 Va.L.Rev. at 107–08 (discussing
Cellmark error “in typing one of forty-nine samples during the only
independently conducted blind proficiency test in which it has
participated. The error was a serious one, of a type that might have
falsely incriminated an innocent suspect.”); see also United States v.
Porter, 1991 WL 319015 (D.C.Super.Ct. Sept. 20, 1991), vacated, 618 A.2d
629 (D.C.1992): Referring to ... a founder of Genetic Design, Inc., [a]
New York Times article in pertinent part states: [T]he DNA method erred
two percent of the time in paternity cases. He knew it was wrong in some
cases, he said, because he sent samples to two DNA labs. One laboratory
would say the putative father was definitely—with astronomically high
odds—the father. The other laboratory would say that the father was
definitely—again, with astronomically high odds—not the father. In one
case, a laboratory said that not only was the father not the father but
the mother was not the mother. When he told the laboratory that
maternity was not an issue, the laboratory came back and said the mother
was the mother and the father was the father. Porter, 1991 WL 319015, at
*22–*23.
Defendant does not challenge DNA testing in toto.
Indeed, Defendant concedes general acceptance of the underlying theory
of DNA testing and its research and diagnostic uses. Rather, Defendant
makes three main challenges to the admission of the DNA test results in
this case: 1. The trial court erred by declining to determine before
trial whether the tests were properly conducted and accurately recorded
according to Cellmark's own protocol. 2. There is no general acceptance
in the relevant scientific community of the procedures used by Cellmark
to declare a match. 3. There is no general acceptance in the relevant
scientific community of the procedures used by Cellmark to calculate the
statistical probability of a random match and, thus, the court erred in
admitting statistical probability opinion testimony. We first turn to
the question of what standard to apply in determining admissibility.FN17
FN17. We are not presented with, and do not determine, the admissibility
of DNA evidence when DNA testing is used to determine paternity. In
paternity cases, different DNA testing technology apparently is used.
See Cobey v. State, 80 Md.App. 31, 559 A.2d 391, 397–98 & n. 14, cert.
denied, 317 Md. 542, 565 A.2d 670 (1989). Thus, the analysis in this
case is limited to criminal cases in which RFLP technology is used and a
match is declared.
2. The standard for admissibility of new
scientific evidence
Both before and after the adoption of the Arizona
Rules of Evidence, we have used the Frye test in determining whether to
admit new scientific evidence. See, e.g., State v. Velasco, 165 Ariz.
480, 486, 799 P.2d 821, 827 (1990); State ex rel. Collins v. Superior
Court, 132 Ariz. 180, 195–202, 644 P.2d 1266, 1281–88 (1982); State v.
Valdez, 91 Ariz. 274, 277–80, 371 P.2d 894, 896–98 (1962). But see State
v. Olivas, 77 Ariz. 118, 119, 267 P.2d 893, 894 (1954) (“scientific
disagreement [as to certain blood alcohol tests] affects only the weight
and not the admissibility of evidence.”). Frye helps us determine
whether new scientific principles are ready for the courtroom and,
conversely, whether the courtroom is ready for new scientific principles:
Just when a scientific principle or discovery crosses
the line between the experimental and demonstrable stages is difficult
to define. Somewhere in this twilight zone the evidential force of the
principle must be recognized, and while courts will go a long way in
admitting expert testimony deduced from a well-recognized scientific
principle or discovery, the thing from which the deduction is made must
be sufficiently established to have gained general acceptance in the
particular field in which it belongs. Frye, 293 F. at 1014. Under Frye,
we conduct a de novo review to determine whether a scientific principle
used as a basis for expert testimony is generally accepted in the
relevant scientific community. See, e.g., People v. Barney, 8 Cal.App.4th
798, 10 Cal.Rptr.2d 731, 737 (1992); State v. Vandebogart, 616 A.2d 483,
491 (N.H.1992); Cauthron, 846 P.2d at 505–06. The State argues that the
Arizona Rules of Evidence effectively supersede the Frye test and asks
that we reject Frye for a relevancy standard under Ariz.R.Evid. 401–03
and 702–06.
It is impossible for our system of justice to ignore
scientific and technological advances. Nevertheless, scientific evidence
is “a source of particular judicial caution.” State v. Superior Court,
149 Ariz. 269, 276, 718 P.2d 171, 178 (1986). “Because ‘science’ is
often accepted in our society as synonymous with truth, there is a
substantial risk of overweighting by the jury.” Morris K. Udall, et al.,
Arizona Practice—Law of Evidence § 102, at 212 (3d ed. 1991). Similarly,
because neither judge nor jury may be able to separate “junk science”
from good science, Frye helps guarantee “that reliability will be
assessed by those in the best position to do so: members of the relevant
scientific field who can dispassionately study and test the new theory.”
Superior Court, 149 Ariz. at 277, 718 P.2d at 179. Frye helps protect
courts from unproven, and potentially erroneous and misleading,
scientific theory “until a pool of experts is available to evaluate it
in court.” 1 John W. Strong, et al., McCormick on Evidence § 203, at 873
(4th ed. 1992). Other benefits of Frye are uniformity of evidentiary
rulings and avoiding complex evidentiary presentations in succeeding
cases after a particular principle is judicially recognized. Id. When
general acceptance is found, the scientific theory may be applied in
other cases without further proof of acceptance.
The Frye test, however, has significant shortcomings.
New discoveries are not immediately accepted in the scientific community.
Rigid application of the general acceptance test would forbid judicial
use of a new discovery even though there may be direct experimental or
clinical support for the principle. Furthermore, history shows that
generally accepted scientific theory is not always correct. Due in part
to these concerns, a leading commentator writes that a “drumbeat of
criticism ... provides the background music to the movement away from
the general acceptance test.” 1 McCormick on Evidence § 203, at 873.
Although acknowledging Frye's worthwhile objectives, this commentator's
further observations are worth repeating: [ Frye 's] objectives can be
attained satisfactorily with less drastic constraints on the
admissibility of scientific evidence. In particular, it has been
suggested ... that courts look directly to reliability or validity
rather than to the extent of acceptance, ... and that the traditional
standards of relevancy and the need for expertise—and nothing more—should
govern.
... [This suggestion] avoids the difficult problems
of defining when “scientific” evidence is subject to the general
acceptance requirement and how general this acceptance must be, of
discerning exactly what it is that must be accepted, and of determining
the “particular field” to which the scientific evidence belongs and in
which it must be accepted. General scientific acceptance is a proper
condition for taking judicial notice of scientific facts, but it is not
a suitable criterion for the admissibility of scientific evidence. Any
relevant conclusions supported by a qualified expert witness should be
received unless there are distinct reasons for exclusion. These reasons
are the familiar ones of prejudicing or misleading the jury or consuming
undue amounts of time.
This traditional approach ... permits general
scientific opinion of both underlying principles and particular
applications to be considered in evaluating the worth of the testimony....
Furthermore, unlike the general or the substantial acceptance standards,
it is sensitive to the perceived degree of prejudice and unnecessary
expense associated with the scientific technique in issue. Not every
scrap of scientific evidence carries with it an aura of infallibility.
Some methods, like bitemark identification and blood splatter analysis,
are demonstrable in the courtroom. Where the methods involve principles
and procedures that are comprehensible to a jury, the concerns over the
evidence exerting undue influence and inducing a battle of the experts
have less force. On the other hand, when the nature of the technique is
more esoteric, as with some types of statistical analyses and serologic
tests, or when the inferences from the scientific evidence sweep broadly
or cut deeply into sensitive areas, a stronger showing of probative
value should be required.... By attending to such considerations, the
rigor of the requisite foundation can be adjusted to suit the nature of
the evidence and the context in which it is offered. 1 McCormick on
Evidence § 203, at 873–76 (emphasis added and footnotes omitted); see
generally Mark McCormick, Scientific Evidence: Defining a New Approach
to Admissibility, 67 Iowa L.Rev. 879 (1982).
Faced with similar arguments, the United States
Supreme Court recently held that the Federal Rules of Evidence
superseded Frye. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, ––––, 113 S.Ct. 2786, 2794, 125 L.Ed.2d 469 (1993). Daubert,
however, did not open the courtroom door to all scientific evidence. The
federal trial judge still is the evidentiary gatekeeper. “Proposed
testimony must be supported by appropriate validation—i.e., ‘good
grounds,’ based on what is known. In short, the requirement that an
expert's testimony pertain to ‘scientific knowledge’ establishes a
standard of evidentiary reliability.” Id. at ––––, 113 S.Ct. at 2795.
Noting that “scientific validity for one purpose is not necessarily
scientific validity for other, unrelated purposes,” id., Daubert held
that federal trial judges must make “a preliminary assessment of whether
the reasoning or methodology underlying the testimony is scientifically
valid and of whether that reasoning or methodology properly can be
applied to the facts in issue,” id. at ––––, 113 S.Ct. at 2796. The
Court then made some “general observations,” offering several factors
bearing on that inquiry. Id. at –––– – ––––, 113 S.Ct. at 2796–98.
Daubert 's general observations, for the most part,
correspond with the factors discussed above in the quotation from
McCormick on Evidence. Both provide persuasive reasons for rejecting or
modifying Frye when applying the Arizona Rules of Evidence, which in
relevant part are identical to the federal rules. The federal rules,
however, are “legislatively-enacted” and interpreted by the United
States Supreme Court “as [it] would any statute.” Daubert, 509 U.S. at
––––, 113 S.Ct. at 2793. Our rules, on the other hand, are court-enacted.
See Ariz. Const. art. VI, § 5(5); Ariz.R.Sup.Ct. 28. While the United
States Supreme Court considers congressional purpose, this court—when
construing a rule we have adopted—must rely on text and our own intent
in adopting or amending the rule in the first instance. See Ritchie v.
Grand Canyon Scenic Rides, 165 Ariz. 460, 464–68, 799 P.2d 801, 805–09
(1990). Furthermore, we are not bound by the United States Supreme
Court's non-constitutional construction of the Federal Rules of Evidence
when we construe the Arizona Rules of Evidence.
Finally, Daubert itself does not establish a regime
based solely on the qualification of experts and relevance. See
Fed.R.Evid. 702. The Daubert analysis includes a reliability requirement
for “[p]ertinent evidence based on scientifically valid principles.”
Daubert, 509 U.S. at ––––, 113 S.Ct. at 2799. The nature of this
requirement is currently unknown, may vary from case to case, and is to
be fashioned by trial judges using an analytical framework as yet
unspecified. In application, Daubert leaves many questions unanswered.
See id. at ––––, 113 S.Ct. at 2800 (Rehnquist, C.J., concurring in part
and dissenting in part).
We conclude, therefore, that notwithstanding
legitimate criticism of Frye, and our desire to preserve uniformity when
possible, this is not the case to determine whether Arizona should
follow Daubert. Although the argument has been raised by the State, it
has not been extensively briefed or argued. More important, however,
even were we to use Daubert 's reliability/scientific validity analysis,
we would still be left with the problem posed by Frye: precisely when
“in [the] twilight zone the evidential force of the [scientific]
principle must be recognized.” Frye, 293 F. at 1014. Whether the Frye or
Daubert standard is used, that line is hard to draw for DNA testing, a
subject that fuels even greater scientific ferment and controversy than
the legal controversy engendered by Frye.
The science in question makes line-drawing in this
case particularly difficult. Not only are we in a complex scientific
field, but the technology is still evolving. Furthermore, this is not an
area in which the jury can easily penetrate the aura of infallibility,
nor one in which the principles are easily demonstrable in the courtroom.
See 1 McCormick on Evidence § 205, at 897–900. The trial testimony shows
it is an area in which the scientists themselves have yet to settle on
uniform testing techniques or protocols. Finally, as we discuss more
fully below, see infra § C(5), the science in this area can have a
direct and forceful dispositive effect. As one court put it, DNA testing
“is precisely the sort of scientific evidence which requires application
of the Frye test.” Fishback v. People, 851 P.2d 884, 890 (Colo.1993).
In short, the difficulties of addressing the
technology used in this case may well promote an evidentiary rule not
suitable for many other types of cases. The field of DNA testing is
probably the worst subject to use to decide whether or how to refine,
replace, or abolish Frye. Nor, as will be seen, is there a need to do so
in this case. Thus, for the present at least, we resolve this case
without significant change in existing evidentiary law. We leave Daubert
for another day and, in accordance with Arizona precedent—old and new—apply
Frye as we turn to Defendant's arguments.
3. The scope of the Frye hearing and the
foundation for DNA testing
If Frye is satisfied, scientific evidence is
admissible “subject to a foundational showing.” State ex rel. Collins,
132 Ariz. at 196, 644 P.2d at 1282; see also NRC Summary, DNA Technology
at 23 (“The adequacy of the method used to acquire and analyze samples
in a given case bears on the admissibility of the evidence and should,
unless stipulated by opposing parties, be adjudicated case by case.”).
In this case, this foundational showing was made in the jury's presence
at trial, and the court ruled that a proper foundation had been made.
Claiming this was error, Defendant argues that the foundational showing
should have been made at the Frye hearing rather than in front of the
jury.
Case law is split on this issue. See People v.
Castro, 144 Misc.2d 956, 545 N.Y.S.2d 985, 987 (Sup.Ct.1989) (citing
authority). Some courts require an initial foundational showing outside
of the presence of the jury and, if adequate, repeat that showing before
the jury. Id. Other courts allow the foundational showing to be made
solely before the jury. Id.
The foundation needed when Frye is satisfied relates
to the expert's qualifications, proper application of testing techniques,
and accurate recording of test results. See State ex rel. Collins, 132
Ariz. at 196, 644 P.2d at 1282. If the foundational showing is made in
the jury's presence, and if the showing is inadequate, “aside from
valuable trial time wasted, the jury would be exposed to prejudicial
proofs and left to speculate as to why the defendant opposed the
ultimate result.” United States v. Two Bulls, 918 F.2d 56, 60 (8th
Cir.1990), vacated on other grounds, 925 F.2d 1127 (8th Cir.1991) (en
banc). Mistrial or reversible error could occur if an inadequate
foundational showing was made before the jury. Simply put, in a rare
case—where the scientific principle and necessary foundational showing
are highly controversial and hotly contested—allowing the foundational
showing to be made in front of the jury means that the trial court works
without a net.
The trial court, however, has discretion in deciding
whether a foundational showing is to be made outside the jury's presence.
See Ariz.R.Evid. 103(c), 104(c). Although acknowledging the potential
for reversible error in using such a procedure, we hold that the trial
court is not required to hold a foundational hearing outside the jury's
presence. Furthermore, in this case the court did not err by allowing
the foundation to be made before the jury.
At trial, the State made a proper foundational
showing (as opposed to, and distinct from, the Frye finding discussed
below) for the performance of the DNA testing. The laboratory personnel
had adequate qualifications, the test used was that described by the
Cellmark testing protocol, and the results were properly recorded.
Although Defendant surmises that samples might have been switched, he
cites to no compelling evidence supporting this hypothesis, and we have
found none. Thus, in this case, no error resulted from allowing the
foundational showing to be made in the presence of the jury. Therefore,
we move to the substantive Frye issue.
4. Is there general acceptance in the relevant
scientific community of Cellmark's techniques and standards used to
declare a match?
A final product of DNA testing of a sample is an x-ray
film called an autoradiograph or autorad. Cauthron, 846 P.2d at 509. An
autorad contains several bands and looks like a bar code with the bands
representing different polymorphic DNA segments. Id. at 509–10. To
determine whether two samples match, Cellmark first visually compares
the samples' banding patterns. If they visually match, Cellmark measures
and compares the banding patterns of the two samples. A match is
declared if each band varies in position less than one or two
millimeters from the corresponding band in the other sample. In this
case, all bands in the declared matches varied less than plus or minus
one millimeter. Unlike Cellmark, after finding a visual match, the FBI
and Lifecodes use a standard deviation or percent variation analysis to
determine whether samples match. Defendant claims that Cellmark's match
standard is not generally accepted in the relevant scientific community.
The accuracy of a match declaration is very important.
A declared match means that the samples could have come from the same
individual. Conversely, if samples do not match, they must have come
from different individuals. See infra note 20. At least initially,
declaring any match involves some subjectivity. Indeed, one court has
stated that mere visual comparisons might be generally accepted even
without objective verification. See Perry v. State, 606 So.2d 224, 225 (Ala.Ct.Crim.App.1992).
Cellmark's match criteria have objective verification, and other courts
have found that these criteria comply with Frye. See Barney, 10 Cal.Rptr.2d
at 738–40; People v. Axell, 235 Cal.App.3d 836, 1 Cal.Rptr.2d 411,
425–29 (1991); Fishback, 851 P.2d at 892–93; Pennell, 584 A.2d at
517–19; Polk v. State, 612 So.2d 381, 391–93 (Miss.1992); State v.
Pierce, 64 Ohio St.3d 490, 597 N.E.2d 107, 113–14 (1992); see also
Caldwell v. State, 260 Ga. 278, 393 S.E.2d 436, 443 (1990) (visual
match, coupled with band shift test, admissible).
Defendant advances no good argument that these cases
were wrong when decided or that, because of scientific development,
their analysis is now obsolete. Furthermore, our own independent
research reveals no significant scientific controversy over Cellmark's
method of declaring a match. Thus, we hold that Cellmark's match
criteria are generally accepted in the relevant scientific community and
comply with Frye.
5. Population genetics—general acceptance of
Cellmark's statistical probability calculation of a random match
a. Background
Cellmark's Lisa Forman, Ph.D., testified that, given
a match of the autorads from the blood on Defendant's shirt and the
victim's tissue, the probability of a random match ranged from one in
fourteen billion to, more conservatively, one in sixty million. The
State tacitly attempted to argue that these probability figures could be
equated with the probability that someone other than Defendant committed
the crime.FN18 Defendant contends that the court erred in admitting the
Cellmark statistical probability evidence because it is not generally
accepted by population geneticists—the relevant scientific community.
FN18. Any argument that the random match probability
constitutes a “guilt probability” is, of course, incorrect and
misleading. Indeed, as Dr. Forman testified, the DNA random match
probability “says nothing about guilt or innocence.” The random match
probability assesses the likelihood that DNA samples selected at random
would match. Jonathan J. Koehler, DNA Matches and Statistics: Important
Questions, Surprising Answers, 76 Judicature 222, 224 (Feb.–Mar. 1993).
Guilt probability is “[t]he probability that the suspect is guilty of
the crime in question.” Id. at 225. Although the random match
probability may factor into the guilt probability calculation, the
opposite is not true. Id. at 224–25. Nor are the formulae for
determining the two different probabilities the same. Id. This court has
never condoned jury use of guilt probability calculations, nor do we in
this case. Cf. State v. Lindsey, 149 Ariz. 472, 474, 720 P.2d 73, 75
(1986) (behavioral evidence cannot tell the jury “who is lying and who
is truthful.... [We do not permit] expert evidence on the question of
guilt or innocence.”).
b. Calculating the random match probability
Absent laboratory error, a declared match means that
only one of the following is true: (1) the samples came from the same
individual; (2) the samples came from identical twins; FN19 or (3) the
samples came from different individuals but, by pure chance, the DNA
segments examined match (although comparison of the entire DNA sequence
from each individual would not match). It is the probability favoring a
random match (the third of these three alternatives) that provides the
telling and crucial bottom line of DNA evidence.FN20
FN19. There is nothing in the record suggesting that
Defendant has an identical twin. Accordingly, we do not address this
alternative. FN20. When no match is declared, no statistical probability
determination is made and our concerns about statistical probability
determinations are obviated. State v. Hammond, 221 Conn. 264, 604 A.2d
793, 800–01 (1992). “All scientists agree that if [test results] are
distinguishable, then [the samples] do not come from the same
individual.” Cauthron, 846 P.2d at 512.
Cellmark uses the “product rule”—sometimes called the
“multiplication rule”—to make its random match determination. This rule
is described as follows: Suppose, for example, that a pair of DNA [samples]
match on two bands, and that one band reflects an allele found in ten
percent of the population and the other an allele found in fifty percent
of the population. Applying the product rule, an analyst would conclude
that the probability of a coincidental match on both alleles is 0.10 x
0.50 = 0.05, or a five percent probability. Thompson & Ford, DNA Typing,
75 Va.L.Rev. at 81–82.FN21 The 0.05 result in this example means that
there was a one in twenty probability of a random match (leaving a
nineteen in twenty chance that the samples came from the same person).
The validity, and corresponding accuracy, of the product rule depends on
the presence, or absence, of several factors.
FN21. For other descriptions of the product rule, see
Prater v. State, 307 Ark. 180, 820 S.W.2d 429, 438 (1991); Pennell, 584
A.2d at 517; Cauthron, 846 P.2d at 513.
* * *
We take a cautious, conservative approach. Not
knowing what records in other cases will show, what issues those cases
will raise, or what new technology will bring, we neither write in stone
nor go farther than we must. For the moment, and at least with respect
to DNA evidence, we leave Frye untouched. We make no final judgment on
how far, if at all, the court may go in allowing a party to inform the
jury about the declaration of a match and its meaning in any specific
case. We hold only that statistical probability evidence based on
Cellmark's database is not based on generally accepted scientific theory
and is not admissible.
D. Right to assistance of counsel at critical
stages
1. Right to counsel at the hearing on Defendant's
motion to continue
On the eve of trial, Defendant filed a pro se motion
to continue, alleging ineffective assistance of counsel. Although the
trial court was not required to consider this pro se motion of a
defendant represented by counsel, it did. At the hearing, Defendant
called his attorneys as witnesses. He did not request additional counsel
to represent him during the hearing and none was appointed. The trial
court denied the motion. Relying on an alternative holding by the
majority in United States v. Wadsworth, 830 F.2d 1500, 1510 (9th
Cir.1987) (2–1 decision), Defendant argues that he was denied his right
to assistance of counsel.
Wadsworth is inapposite. In Wadsworth, at a hearing
on a motion to change counsel, defense counsel took a position adverse
to the defendant. In the present case, Defendant—represented by counsel—filed
a pro se motion that the court actually considered. At the hearing on
that motion, Mr. Phillips, one of Defendant's attorneys, appeared,
represented Defendant's interests, protected Defendant's rights, and
took no position adverse to Defendant. Thus, we find no error. See
United States v. Weaver, 882 F.2d 1128, 1143 n. 9 (7th Cir.), cert.
denied, 493 U.S. 968, 110 S.Ct. 415, 107 L.Ed.2d 380 (1989).
2. Defendant's motion to substitute counsel
Claiming a lack of trust and confidence, Defendant
moved pro se to remove his lead attorney, making several claims of that
attorney's purported inaction. The trial court denied the motion. On
appeal, Defendant claims the denial was error.
Although an indigent criminal defendant has a Sixth
Amendment right to competent counsel, this right does not include
counsel of choice. See State v. LaGrand, 152 Ariz. 483, 486, 733 P.2d
1066, 1069. Nor does this right guarantee a “ ‘meaningful relationship’
between an accused and his counsel.” Morris v. Slappy, 461 U.S. 1, 14,
103 S.Ct. 1610, 1617, 75 L.Ed.2d 610 (1983). Although irreconcilable
conflict is not permitted, conflict between counsel and a criminal
defendant is but one factor a court should consider in deciding whether
to substitute counsel. See LaGrand, 152 Ariz. at 486–87, 733 P.2d at
1069–70. A mere allegation of lost confidence in counsel does not
require appointing substitute counsel. See State v. Crane, 166 Ariz. 3,
11, 799 P.2d 1380, 1388 (Ct.App.1990). We review the trial court's
decision for an abuse of discretion. LaGrand, 152 Ariz. at 487, 733 P.2d
at 1070.
The record reveals disagreement among the defense
team, particularly regarding whether to file a special action on the DNA
issues. Defendant and his lead attorney also disagreed on some defense
strategy. The trial court, however, found that virtually none of the
relevant allegations in Defendant's pro se motion were supported. The
record does not demonstrate an irreconcilable conflict between Defendant
and his attorneys. As the trial court correctly summarized: What this
all boils down to is that there is some disagreement as to tactics and
strategy among the defendant and the investigator and counsel, maybe
even some feelings of not getting along so well together. .... I look
strictly at whether the defendant will have adequate representation of
counsel in this case. My finding is that he will. Thus, the record shows
that the trial court did not abuse its discretion in denying Defendant's
motion. LaGrand, 152 Ariz. at 487, 733 P.2d at 1070.
E. Evidence of flight and concealment
Defendant moved to preclude evidence of his flight
and concealment immediately before his arrest. Following a hearing on
the matter, the court denied the motion, admitted the evidence, and
instructed the jury: Running away or hiding after a crime has been
committed does not itself prove guilt. You may consider any evidence of
the defendant's running away or hiding, together with all the other
evidence. Concealing evidence after a crime has been committed does not
itself prove guilt. You may consider any evidence of the defendant's
concealment of evidence, together with all the other evidence. Defendant
argues that the evidence did not raise a reasonable inference of a
consciousness of guilt of kidnapping, murder, or molestation, was unduly
prejudicial, and that the jury instructions were erroneous.
Evidence of flight from, or concealment of, a crime
usually constitutes an admission by conduct. State v. Edwards, 136 Ariz.
177, 184, 665 P.2d 59, 66 (1983). Within reason, the fact that flight or
concealment is remote in time from the crime goes to the weight, not the
admissibility, of the evidence. See State v. Reid, 114 Ariz. 16, 30, 559
P.2d 136, 150 (1976), cert. denied, 431 U.S. 921, 97 S.Ct. 2191, 53 L.Ed.2d
234 (1977). To be admissible, however, “there must be evidence of flight
from which can be inferred a consciousness of guilt for the crime
charged.” Edwards, 136 Ariz. at 184, 665 P.2d at 66 (emphasis added).
Merely because a defendant is wanted on another charge, however, does
not make evidence of flight per se inadmissible. See State v. Jeffers,
135 Ariz. 404, 415, 661 P.2d 1105, 1116, cert. denied, 464 U.S. 865, 104
S.Ct. 199, 78 L.Ed.2d 174 (1983). Again, we review this evidentiary
issue for an abuse of discretion. See State v. Robinson, 165 Ariz. 51,
56, 796 P.2d 853, 858 (1990), cert. denied, 498 U.S. 1110, 111 S.Ct.
1025, 112 L.Ed.2d 1107 (1991).
Defendant was driving a stolen vehicle at the time of
his flight and was wanted for stealing the GMC and for numerous other
offenses. His knowledge of these then-pending charges is uncertain. As
his attorney stated, because Defendant did not testify at the hearing,
“we will never know what was in Mr. Bible's mind at the time he fled.”
Defendant's flight and concealment showed substantial
anxiety over apprehension (high speed chase, running from the vehicle
when cornered, and camouflaging himself on a ledge with leaves).
Nevertheless, approximately an hour after his arrest, Defendant
confessed to stealing the GMC. These circumstances, including this
prompt confession to the theft of the vehicle, could justify an
inference that Defendant was fleeing from some other, more serious crime.
See Edwards, 136 Ariz. at 184, 665 P.2d at 66; Tison, 129 Ariz. at
539–40, 633 P.2d at 348–49. In addition, because the evidence of the
crimes charged in this case necessarily included the theft of the GMC,
Defendant did not need to offer new, potentially damning evidence of the
GMC's theft to argue that he was fleeing only from a theft charge and
not from kidnapping, molestation, and murder charges. See State v.
Hunter, 136 Ariz. 45, 49, 664 P.2d 195, 199 (1983) (quoting 2 J. Wigmore,
Evidence in Trials at Common Law § 276, at 129–30 (J. Chadbourn rev.
1979)). Thus, under the facts of this case, we cannot say that the court
abused its discretion in admitting the flight and concealment evidence.
See Edwards, 136 Ariz. at 184, 665 P.2d at 66; Jeffers, 135 Ariz. at
415, 661 P.2d at 1116; Tison, 129 Ariz. at 539–40, 633 P.2d at 348–49;
Ariz.R.Evid. 403. Nor can we say that the jury instruction constituted
fundamental error. See Gendron, 168 Ariz. at 155, 812 P.2d at 628;
Hunter, 142 Ariz. at 90, 688 P.2d at 982.
F. Testimony about Defendant's prior statements
Defendant unsuccessfully moved to exclude statements
he made while incarcerated in 1984 or 1985 to Arizona Department of
Corrections counselor Robert Emerick. When asked whether Defendant
showed any remorse for the 1981 sexual assault, Mr. Emerick stated
“[t]he only remorse that [Defendant] ever conveyed was that he had been
caught and that there was somebody who was left behind to report him.”
When asked what specific language Defendant used, Mr. Emerick stated:
To the best of my recollection, we had [Defendant]
roleplaying or giving us an account of how he had controlled his cousin,
and he had described having a knife to her and then he described, ‘I'll
never make this mistake again,’ and his pupils in his eyes were about
this big around. I can just remember thinking, this, this man is very
dangerous. Mr. Emerick testified that interpreting Defendant's statement
as showing remorse for the assault “would have been completely out of
character with all the other things [Defendant] had presented in group.”
During cross-examination, Mr. Emerick stated that he had worked with sex
offenders for nine years and could “only recall people who have left
memorable impressions about their sex deviance patterns, on about three
people, Ricky Bible being one of them.” The court admitted this
testimony to show premeditation under Ariz.R.Evid. 803(3). Defendant
argues that the statements were irrelevant, improper hearsay, and unduly
prejudicial.
In this court, the State argues a theory of
admissibility not pressed in the trial court. The State contends that
the statements are not hearsay and were admissible under Ariz.R.Evid.
801(d)(2) We examine the propriety of admitting the evidence under Rule
803(3)—the ground of admission advanced by the State and accepted by the
trial court. We therefore assume —as did the trial court and the
proponent of the evidence—that the statements were hearsay. But see
Ariz.R.Evid. 801(d)(2).
Hearsay may be admissible if it is a “statement of
the declarant's then existing state of mind ... (such as intent, plan,
motive, design, mental feeling).” Ariz.R.Evid. 803(3). An essential
element of the murder charge was that Defendant committed the act with
premeditation. See A.R.S. § 13–1105(A). Although Defendant's statements
could be interpreted in more than one manner, they could reasonably be
interpreted to mean that if Defendant again committed a sex crime, he
would not leave the victim alive to testify against him. This tends to
show Defendant's state of mind and is relevant to show both
premeditation and motive to kill. See State v. Dickey, 125 Ariz. 163,
167, 608 P.2d 302, 306 (1980); State v. Mincey, 130 Ariz. 389, 404–05,
636 P.2d 637, 652–53 (1981), cert. denied, 455 U.S. 1003, 102 S.Ct.
1638, 71 L.Ed.2d 871 (1982); State v. Saiz, 103 Ariz. 567, 568–69, 447
P.2d 541, 542–42 (1968).
Contrary to Defendant's arguments, the statements did
not have to refer to a specific victim and, within reason, temporal
remoteness goes to weight, not admissibility. See Mincey, 130 Ariz. at
404–05, 636 P.2d at 652–53; State v. Moore, 111 Ariz. 355, 356, 529 P.2d
1172, 1173 (1974). FN35 Although the statements are susceptible to
varying interpretations, it was for the jury to decide their precise
meaning in light of the circumstances and context. The court could have
properly concluded that these statements fall within the hearsay
exception of Ariz.R.Evid. 803(3).
FN35. See also State v. Hobson, 234 Kan. 133, 671
P.2d 1365, 1382–84 (1983) (finding statements made by defendant nearly
two months before victim's disappearance admissible in premeditated
murder case); 2 Francis Wharton, Wharton's Criminal Evidence § 307, at
101 (13th ed. 1972). But cf. United States v. Crosby, 713 F.2d 1066,
1073 n. 7 (5th Cir.) (exculpatory journal entries written over course of
ten years properly excluded because “they in no way related” to
defendant's state of mind at time of crime), cert. denied, 464 U.S.
1001, 104 S.Ct. 506, 78 L.Ed.2d 696 (1983).
When the issue of undue prejudice is raised, we
review determinations under Ariz.R.Evid. 403 for an abuse of discretion.
See State v. Taylor, 169 Ariz. 121, 126, 817 P.2d 488, 493 (1991). The
record indicates that the statements were made three or four years
before the victim's abduction. This time lag and the fact that the
statements were made about a broad group and were interpreted by Mr.
Emerick all indicate that the statements' probative value was not
overwhelming. The testimony also had the very real potential to be used
improperly by the jury as character evidence. Ariz.R.Evid. 404(b). On
the other hand, the State had available, but did not introduce, more
explicit and damaging testimony from other individuals who heard
Defendant make similar statements closer to the time of the victim's
abduction. In sum, we cannot state that the court abused its discretion
by finding that the probative value of the statements was not
“substantially outweighed by the danger of unfair prejudice.”
Ariz.R.Evid. 403. Thus, the court did not abuse its discretion in
admitting Mr. Emerick's testimony.
G. Destruction of evidence
In testing the blood found on Defendant's shirt, the
State used approximately seventy percent of the available sample.
Defendant moved to preclude the test results, claiming that the testing
destroyed the usable sample and therefore violated his due process
rights under the United States and Arizona Constitutions. Defendant
claims that the court erred in denying this motion.
Under the United States Constitution, “unless a
criminal defendant can show bad faith on the part of the police, failure
to preserve potentially useful evidence does not constitute a denial of
due process of law.” Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct.
333, 337, 102 L.Ed.2d 281 (1988). This court similarly construed the
Arizona Constitution's due process clause. See State v. Youngblood, 173
Ariz. 502, 507–08, 844 P.2d 1152, 1157–58 (1993). FN36 Assuming that the
blood found on Defendant's shirt was not preserved,FN37 Defendant does
not allege bad faith by the State—a necessary element of a due process
claim following the destruction of such evidence. See Youngblood, 488
U.S. at 58, 109 S.Ct. at 337; Youngblood, 173 Ariz. at 507–08, 844 P.2d
at 1157–58. Indeed, the trial court found that “a good faith effort ...
was made to take only so much as was needed for the State's tests and to
try to leave something for the defendant.” Furthermore, the fact that
the State uses evidence that has been consumed through testing is not
dispositive. See, e.g., United States v. Castro, 887 F.2d 988, 999 (9th
Cir.1989); State v. Pearson, 234 Kan. 906, 678 P.2d 605, 615 (Kan.1984);
John P. Ludington, Annotation, Consumption or Destruction of Physical
Evidence Due to Testing or Analysis by Prosecution's Expert as
Warranting Suppression of Evidence or Dismissal of Case Against Accused
in State Court, 40 A.L.R.4th 594 § 5 (1985 & 1992 Supp.). Thus, we
reject Defendant's claim.
FN36. The author of this opinion dissented in
Youngblood but does not register any dissent here. Even under the
author's views, Defendant's due process rights were not violated in this
case. See Youngblood, 173 Ariz. at 511–14, 844 P.2d at 1161–64 (Feldman,
C.J., dissenting).
FN37. We make no finding that the blood was not
preserved. There is no conclusive proof that Defendant was unable to
perform DNA testing using polymerase chain reaction technology. Thompson
& Ford, DNA Typing, 75 Va.L.Rev. at 50 (polymerase chain reaction
technology can be used to “ ‘type’ the DNA in a single hair.”). Nor is
there any indication that the DNA deteriorated to the extent that
independent testing could not be performed. Charles L. Williams, DNA
Fingerprinting: A Revolutionary Technique in Forensic Science and Its
Probable Effects on Criminal Evidentiary Law, 37 Drake L.Rev. 1, 6
(1987–88) (indicating that DNA testing can be performed on samples at
least five years old).
H. The trial court's alleged bias
Defendant argues that the trial judge improperly
expressed dislike for his attorneys. Defendant cites to instances where
the judge interrupted defense counsel's questioning or sua sponte
objected to trial questioning. FN38 Ultimately, Defendant objected to
these interjections, requesting that future objections by the trial
judge be addressed at side bar and “that the Court, absent an objection
from the State, not interrupt my examination.” The trial judge responded
that: FN38. Defendant also challenges certain pretrial statements made
by the trial judge. Although these statements may have put Defendant on
notice of any basis to challenge the judge for cause, Ariz.R.Crim.P.
10.1, “remarks made outside the hearing of the jurors, even if
prejudicial to the appellant, could not keep the jury from exercising an
impartial judgment on the merits, and do not warrant a reversal.” State
v. Williams, 113 Ariz. 14, 16, 545 P.2d 938, 940 (1976).
I shall continue to control the proceedings in this
court. Some other body will have to decide whether my actions are
reasonable or not. I will not be intimidated by this presentation. If
you ask the same question over and over, I will stop it, and if you
can't keep track of where you are in your questions, I will, and
apparently you have learned nothing by this experience. If you want to
find fault with what I do as it occurs, you will have to take
appropriate action on the spot. Defendant argues that the trial judge's
actions were improper and violated his due process rights.
A trial judge must control the courtroom to help
ensure a fair trial. Ariz.R.Evid. 611. Trial judges “are not referees at
prize-fights but functionaries of justice.” Johnson v. United States,
333 U.S. 46, 54, 68 S.Ct. 391, 395, 92 L.Ed. 468 (1948). Judges must be
impartial, State v. Carver, 160 Ariz. 167, 172, 771 P.2d 1382, 1387
(1989), and avoid any appearance of partiality, State v. Brown, 124 Ariz.
97, 100, 602 P.2d 478, 481 (1979). A trial judge also must refrain from
taking any action calculated to influence the jury or likely to
prejudice the defendant. See State v. Williams, 113 Ariz. 14, 16, 545
P.2d 938, 940 (1976).
There is no indication that the trial judge's
statements were either designed to prejudice or likely to do so. Many of
the judge's statements were calculated to prevent repetitive, irrelevant,
or argumentative questioning. The trial judge has discretion to do this
even when the opponent does not object. See Ariz.R.Evid. 611; see also
Johnson, 333 U.S. at 54, 68 S.Ct. at 395. Within reason, a judge does
not display bias or cause prejudice when acting sua sponte to control
the courtroom and the trial. See Williams, 113 Ariz. at 16, 545 P.2d at
940.
The only troublesome point is a statement the trial
judge made to the attorney outside the presence of the jury while
addressing a motion to continue. The judge described another case in
which that attorney had been denied a continuance and was forced to
interview witnesses during recesses. The judge then stated, “I can tell
you the judges of this court thought that would teach you a lesson.”
Contrary to this statement, deciding whether to grant a continuance
involves “the interests of justice.” Ariz.R.Crim.P. 8.5(b). The stakes
are high in criminal cases, and critical decisions should not rest, in
whole or in part, on an attempt to somehow teach an attorney a lesson.
This statement, however, was made outside the
presence of the jury and could not have prejudiced Defendant. Williams,
113 Ariz. at 16, 545 P.2d at 940. Furthermore, the record shows that the
interjections made by the trial judge in the jury's presence did not
unfairly prejudice Defendant. See United States v. Eldred, 588 F.2d 746,
749–51 (9th Cir.1978); Williams, 113 Ariz. at 15–16, 545 P.2d at 939–40.
Thus, we find no error.
I. The child molestation conviction and the weight
of the evidence
1. Motion for judgment of acquittal
Defendant claims that the trial court should have
granted his motion for acquittal on the child molestation count made at
the close of the State's case. He argues that the evidence on this count
was inadequate to support all elements of the offense. See A.R.S. §
13–1410 (1989); State v. Noble, 152 Ariz. 284, 286, 731 P.2d 1228, 1230
(1987); State v. Roberts, 126 Ariz. 92, 95, 612 P.2d 1055, 1058 (1980).
If reasonable minds could differ as to whether the properly admitted
evidence, and the inferences therefrom, prove all elements of the
offense, a motion for acquittal should not be granted. State v. Mathers,
165 Ariz. 64, 67, 796 P.2d 866, 869 (1990); Ariz.R.Crim.P. 20(a). We
conduct a de novo review of the trial court's decision, viewing the
evidence in a light most favorable to sustaining the verdict. State v.
Landrigan, 176 Ariz. 1, 4, 859 P.2d 111, 114 (1993).
Viewing the evidence in that light, the facts are:
the victim was nine years old and was abducted; her hands were bound,
her clothes removed, her panties hung on a tree limb, and her body left
nude; a pubic-type hair similar to Defendant's was found near the body
in a clump of hair that appeared to have been cut with Defendant's knife;
and Defendant was not wearing underwear when arrested hours after the
abduction. Although an autopsy revealed no sperm or semen, this was of
little evidentiary value due to decomposition. The pathologist who
performed the autopsy testified that the victim's “body was completely
unclothed, completely naked, and ... her hands were bound ... and I
think that those two findings certainly would be indicative of some type
of sexual molestation.” While this is not expert evidence, or if
objected to necessarily admissible as lay opinion, it states the common
sense conclusion that the evidence permits an inference of molestation.
See Bond v. State, 273 Ind. 233, 403 N.E.2d 812, 817–18 (Ind.1980); see
also People v. Enoch, 122 Ill.2d 176, 119 Ill.Dec. 265, 276, 522 N.E.2d
1124, 1135 (1988), cert. denied, 488 U.S. 917, 109 S.Ct. 274, 102 L.Ed.2d
263 (1988); Hines v. State, 58 Md.App. 637, 473 A.2d 1335, 1348–49
(1984), cert. denied, 300 Md. 794, 481 A.2d 239 (1984).
Other evidence links Defendant to the victim and to
the crime scene. From the evidence presented, the jury could infer that
Defendant had the requisite state of mind. See Noble, 152 Ariz. at 286,
731 P.2d at 1230; Roberts, 126 Ariz. at 95, 612 P.2d at 1058. Although
contrary inferences are possible, a reasonable jury could have concluded
beyond a reasonable doubt that Defendant molested the victim. Indeed,
this is the most logical explanation for the crime. There is substantial
evidence to warrant conviction; nothing more is required. See Landrigan,
176 Ariz. at 4, 859 P.2d at 114. The trial court properly denied the
motion for acquittal.
2. Motion for new trial
A new trial may be granted when “[t]he verdict is
contrary to ... the weight of the evidence.” Ariz.R.Crim.P. 24.1(c)(1).
Defendant argues that the evidence does not support the molestation
conviction and that the trial court abused its discretion in denying his
motion for new trial. As noted above, there is substantial evidence to
warrant conviction of child molestation. The trial judge did not abuse
his discretion in denying the motion for new trial. Landrigan, 176 Ariz.
at 4, 859 P.2d at 114. Thus, we find no error.
J. Statements by the victim's mother
The trial court excluded the testimony of the
victim's mother regarding her pre- and post-hypnotic description of the
vehicles and drivers she saw the morning of the abduction. The court,
however, allowed police officers and the victim's father to testify as
to her pre-hypnotic statements. Defendant argues that the victim's
mother became unavailable when the State failed to hypnotize her
according to the requirements of State ex rel. Collins, 132 Ariz. at
210–11, 644 P.2d at 1296–97. Implicitly conceding that her pre-hypnotic
statements were admissible under Ariz.R.Evid. 803(2), Defendant claims a
denial of his Sixth Amendment right to confront the victim's mother.
When hearsay testimony comes “within a firmly rooted
exception to the hearsay rule, the Confrontation Clause is satisfied.”
White v. Illinois, 502 U.S. 346, ––––, 112 S.Ct. 736, 743, 116 L.Ed.2d
848 (1992). Distraught and fearful because her daughter was missing, the
victim's mother described the vehicles and their drivers to law
enforcement officers shortly after she observed the passing vehicles. By
so doing, she attempted to assist the officers in finding her daughter;
she had every motive to be accurate and tell the truth and none at all
to fabricate or alter her description. Clearly the victim's mother was
speaking in a state of excitement likely to ensure spontaneity.
Ariz.R.Evid. 803(2). Because the challenged testimony fit within the
excited utterance hearsay exception, id., Defendant's confrontation
rights were not violated. See, e.g., White, 502 U.S. at –––– – ––––, 112
S.Ct. at 741–44; Arizona v. Lengyel, 502 U.S. 1068, 112 S.Ct. 960, 117
L.Ed.2d 127 (1992) (remanding for further consideration in light of
White ); Ohio v. Roberts, 448 U.S. 56, 65–66, 100 S.Ct. 2531, 2538–39,
65 L.Ed.2d 597 (1980); State v. Yslas, 139 Ariz. 60, 65, 676 P.2d 1118,
1123 (1984).
K. Dog tracking testimony
James Weeks testified regarding the actions of his
tracking dog, Bo, in searching for the victim and Defendant. He first
scented Bo to search for the victim near the area where her bicycle was
located. Later that day, Bo was used to track Defendant. Mr. Weeks
testified that he scented the dog in the GMC when searching for
Defendant.
I brought [Bo] up to the [GMC] on the driver's side
where the door was open. I immediately jumped my dog onto the floorboard
of the driver's side and immediately he went to the, through the two
seats in the front into the back seat. At this time I jerked my dog out
of the back seat on the lead. I put him on the front seat, the driver's
side. I made him sit. I scented him, told him to scent, and told him to
find.
The prosecutor then asked whether Bo, when used to
track Defendant, was tracking the victim's or Defendant's scent (implying
that the dog may have smelled the victim's scent on Defendant). Mr.
Weeks answered that there was a “doubt in my mind that he was working
either particular one at that time.” Defendant argues that this
testimony was irrelevant, that there was no proper foundation for the
question, and that the testimony was unfairly prejudicial. Defense
counsel did not make any relevancy objection or motion to strike at
trial. Thus, absent fundamental error, this issue is precluded. Gendron,
168 Ariz. at 154–55, 812 P.2d at 627–28.
The question is relevant because it seeks testimony
tending to connect Defendant with the victim. The answer may have had
minimal relevancy, but even if it did not, we find no fundamental error.
Defendant has not shown that the foundation for the tracking evidence
was inadequate under Roscoe, 145 Ariz. at 220–21, 700 P.2d at 1320–21.
Indeed, Mr. Weeks testified to the Roscoe foundational requirements
without objection.FN39 Nor do we see how Mr. Weeks' answer was unfairly
prejudicial in light of the following unobjected-to foundational
exchange:
FN39. Defendant's real objection may be with Roscoe
itself. Defendant seeks to graft onto Roscoe an additional requirement
that a tracking dog cannot be taken off the scent and given a fresh
start. We decline to revise the clear Roscoe requirements by relying, as
does Defendant, on one of the many cases cited in a case distinguished
in Roscoe. See State v. Storm, 125 Mont. 346, 238 P.2d 1161, 1176
(1952), cited in Terrell v. State, 3 Md.App. 340, 239 A.2d 128, 132–33
n. 3, 137 (1968), in turn cited in Roscoe, 145 Ariz. at 220, 700 P.2d at
1320.
Q. [L]et's assume that your dog is scented to find
one person and you are off searching for that person but that person is
never found, in other words, your search is interrupted before the
person is found. He's borrowed and then rescented on a new person. Does
that cause a problem with the dog? A. Possibly there could be a problem
of knowing which scent that he's actually following, yes, there could
be, as far as knowing exactly which scent trail that he is following.
Thus, we reject Defendant's claims.
L. Outburst by the victim's father
During testimony about Defendant's 1981 sexual
assault and kidnapping convictions, the victim's father ran out of the
courtroom and, once outside, yelled “[t]hat fucking asshole.” The judge,
in front of the jury, stated: I think the record should reflect at this
point that [the victim's father] went out of the courtroom obviously
disturbed and yelled an obscenity which I'm sure the jury heard, as I
did. I think it might be well to remind the jury what you are told at
the beginning of the case ... which is that you are not to base your
decision in this case on emotion or prejudice or sympathy, ... but to
base it on the facts. You notice we don't tell you not to have emotion
or not to have sympathy, just that you don't base your decision on that.
You base it on the facts that are presented in court, so please
disregard the outburst. I'm sure we can understand the feelings that
were being vented, but that's not the way that decisions are made.
As an additional remedial measure, the trial court
excluded the victim's father from the courtroom for the remainder of the
trial. Defense counsel moved for a mistrial, arguing that the outburst
“completely undermined whatever defense that we had.” The trial court
denied the motion: I don't think it's really the substance for a
mistrial. I don't think there is any doubt in the jury's mind about how
[the victim's father] feels about Mr. Bible. That's certainly been clear
for days.[[[FN40] It's just the venting of that in an inappropriate way
that I think troubles us. FN40. Whatever made it clear at trial is not
clear from the record on appeal. I don't think the jury is going to make
its decision based on what he said. I think they will base it on the
evidence. Defendant argues that the trial court erred in denying his
motion for mistrial.
When a motion for mistrial is based on evidentiary
concerns, we review for an abuse of discretion. Koch, 138 Ariz. at 101,
673 P.2d at 299 (citing cases). This deferential standard of review
applies because the trial judge is in the best position to evaluate “the
atmosphere of the trial, the manner in which the objectionable statement
was made, and the possible effect it had on the jury and the trial.” Id.
(citing cases).
The cases relied on by Defendant are inapposite. In
State v. Gallagher, 97 Ariz. 1, 396 P.2d 241 (1964), disapproved on
other grounds by State v. Greenawalt, 128 Ariz. 388, 395, 626 P.2d 118,
125, cert. denied, 454 U.S. 848, 102 S.Ct. 167, 70 L.Ed.2d 136 (1981),
we reversed a murder conviction on grounds independent of a spectator's
“hostile views.” Gallagher, 97 Ariz. at 8, 396 P.2d at 245–46. In Taylor
v. State, 55 Ariz. 29, 97 P.2d 927 (1940), serious prosecutorial
misconduct may or may not have required reversal but, when coupled with
the audience's applause after the prosecutor's closing argument,
reversal was required. Id. at 40, 97 P.2d at 932. In this case, we are
presented with a serious but isolated incident by a murder victim's
father.
The court did not exclude the victim's father before
the outburst, and the record suggests that some outburst may have been
anticipated. Defendant, however, did not object to the presence of the
victim's father during trial. Indeed, in a pretrial discussion
addressing the issue, trial counsel noted that the victim's father had
“become a little unglued” in pretrial proceedings but that he had “no
problem” with the victim's father remaining in the courtroom after he
testified.
So far as this record shows, the victim's father had
taken no action at trial warranting reprimand or comment prior to his
outburst. The substance of his comment and its context make clear that
strong emotion prompted the outburst. No information was conveyed other
than the father's animosity toward Defendant, a feeling that could
hardly have surprised the jurors. In light of the nature of the outburst,
the prompt instruction given the jury, and the exclusion of the victim's
father from the remainder of trial, we do not believe that the trial
court abused its discretion in denying the motion for mistrial. See
Messer v. Kemp, 760 F.2d 1080, 1086–88 (11th Cir.1985) (affirming denial
of mistrial after victim's father lunged at and threatened defendant,
when jury admonished, jurors polled as to impact of incident, and
outburst not calculated to influence jury), cert. denied, 474 U.S. 1088,
106 S.Ct. 864, 88 L.Ed.2d 902 (1986); see generally Jay M. Zitter,
Annotation, Emotional Manifestations by Victim or Family of Victim
During Criminal Trial as Ground for Reversal, New Trial, or Mistrial, 31
A.L.R.4th 229 (1984); Jay M. Zitter, Annotation, Disruptive Conduct of
Spectators in Presence of Jury During Criminal Trial as Basis For
Reversal, New Trial, or Mistrial, 29 A.L.R.4th 659 (1984).
M. Fundamental error claims
Defendant claims that the trial court committed
several fundamental errors. As noted more fully above, see supra §
A(3)(e), fundamental error is error that deprived a defendant of a fair
trial. Hunter, 142 Ariz. at 90, 688 P.2d at 982. The doctrine applies in
“extremely limited circumstances” where the error was “clear, egregious,
and curable only via a new trial.” Gendron, 168 Ariz. at 155, 812 P.2d
at 628.
1. Evidence obtained from the seizure of
Defendant's clothing
Defendant argues that it was fundamental error to
admit evidence obtained from clothing taken from him when arrested.
Defendant does not argue that he was improperly arrested or that the
State could not take his clothes during his incarceration. Rather,
Defendant argues that the State improperly tested his clothes without a
warrant in violation of his Fourth Amendment rights.
Generally, a warrant is required before a valid
search or seizure can occur. See Katz v. United States, 389 U.S. 347,
356–57, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); see also Ariz. Const.
art. II, § 8. There are, of course, various exceptions to this rule. One
exception is a search incident to a valid arrest. See generally United
States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974).
In this case, the clothing was not seized as evidence of the crime for
which Defendant was first jailed, and the testing was performed without
probable cause days after seizure of the items. Thus, Edwards is at
least factually distinguishable.
Arizona, however, is among the majority of courts
finding that this type of warrantless seizure does not violate a
defendant's Fourth Amendment rights. See 2 Wayne R. LaFave, Search and
Seizure: A Treatise on the Fourth Amendment § 5.3(b), at 494 n. 79 (2d
ed. 1987 & 1993 Supp.) (citing cases). In the present case, the
authorities merely tested that which had properly come into their
possession. See, e.g., United States v. Johnson, 820 F.2d 1065, 1067–68,
1071–72 (9th Cir.1987) (currency properly admitted in bank robbery
prosecution when defendant already in police custody on unrelated charge
before becoming a suspect in bank robbery); State v. Carriger, 123 Ariz.
335, 338, 599 P.2d 788, 791 (1979) (keys properly admitted in robbery
and murder case when removed from police property locker for testing,
without a warrant, three months after arrest), cert. denied, 444 U.S.
1049, 100 S.Ct. 741, 62 L.Ed.2d 736 (1980); State v. Gonzales, 111 Ariz.
38, 44, 523 P.2d 66, 72 (1974) (clothing properly admitted in murder and
rape case when defendant already in police custody on unrelated charge).
There was no error in admitting the evidence and its fruits, and thus
there can be no fundamental error.
2. Blood stain evidence
Defendant argues that it was fundamental error to
admit testimony about human blood stains found on his pants and boots.
Specifically, Defendant claims that he was not linked to these stains on
the day of the victim's abduction. In making his argument, Defendant
relies on distinguishable cases. In State v. Routhier, 137 Ariz. 90,
98–99, 669 P.2d 68, 76–77 (1983), cert. denied, 464 U.S. 1073, 104 S.Ct.
985, 79 L.Ed.2d 221 (1984), for example, it was error to admit a bloody
shirt found near the victim's body. No testimony linked that defendant
to the shirt and, accordingly, lack of relevancy precluded admission. Id.
at 99, 669 P.2d at 77. In this case, however, Defendant was wearing the
pants and boots when apprehended hours after the victim's abduction.
Similarly, the closeness in time between the abduction and Defendant's
arrest raises an inference that he wore this clothing at the time the
victim was killed. Thus, the evidence was relevant and admissible; there
was no error and can be no fundamental error. For similar reasons, we
also reject Defendant's argument that the court erred in admitting
evidence of blood stains in and under the GMC because they could not be
positively identified as human blood. See Carriger, 123 Ariz. at 339,
599 P.2d at 792.
3. Child molestation jury instruction
The instruction given on the child molestation count
reads as follows: The crime of molestation of a child requires proof
that the defendant knowingly touched directly or indirectly the private
parts of a child under the age of 15 years, or caused a child under the
age of 15 years to touch directly or indirectly the private parts of the
defendant.
Defendant claims that this instruction erroneously
omitted a requirement that the act be motivated by an unnatural or
abnormal sexual interest or intent. Defendant argues that this is a
necessary element of the offense. Without again addressing the issue, we
will assume that it is. See In re Pima County Juvenile Appeal No.
74802–2, 164 Ariz. 25, 33, 790 P.2d 723, 731 (1990). But cf. In re
Maricopa County Juvenile Action No. JV–121430, 172 Ariz. 604, 606–07,
838 P.2d 1365, 1367–68 (Ct.App.1992). Because Defendant did not object
at trial, we must decide whether this omission was fundamental error.
“The failure to instruct on a necessary element of an
offense is not fundamental error where there is no issue as to that
element.” State v. Avila, 147 Ariz. 330, 338, 710 P.2d 440, 448 (1985).
Initially, we note that the asserted trial defense in this case did not
raise the motivation issue. Although Defendant pleaded not guilty—thus
requiring the State to prove every element of the charge—his defense at
trial was that he did not commit the physical act charged. Defendant did
not assert that his motivation for committing the act was natural and
normal or that the act was somehow privileged.
The facts of this case—both those found by the jury
and those undisputed in the record—show that Defendant's motivation was
not in question. The guilty verdict on the kidnapping charge necessarily
means that the jury found beyond a reasonable doubt that Defendant
knowingly restrained the victim. The undisputed facts show that she was
restrained by force—her hands were bound. As to the molestation charge,
considering the instruction given, the guilty verdict necessarily means
that the jury found beyond a reasonable doubt that Defendant knowingly
had sexual contact with the nine-year-old victim. Defendant was
approximately twenty-six years old at the time. The age difference, the
bound hands, the panties hung on a tree limb, and the nude body belie
any suggestion that Defendant was motivated by anything other than an
unnatural or abnormal sexual interest with respect to children. Cases
with facts less compelling support this conclusion.
In State v. Roberts, 126 Ariz. 92, 612 P.2d 1055
(1980), the defendant challenged the sufficiency of the evidence for his
child molestation conviction. Testimony in that case showed that the
defendant moved his hands inside the diaper of a seven-year-old
emotionally and physically retarded girl. Id. at 93, 612 P.2d at 1056.
We affirmed the conviction, stating that “[t]hese acts, by their very
nature, manifest that defendant was motivated by an unnatural or
abnormal sexual interest or intent with respect to children.” Id. at 95,
612 P.2d at 1058 (emphasis added); see also State v. Brooks, 120 Ariz.
458, 461, 586 P.2d 1270, 1273 (1978) (finding acts “by their very nature
manifest” the required motivation); State v. Johnson, 120 Ariz. 21, 22,
583 P.2d 1341, 1342 (1978) (same). In light of Defendant's trial
strategy, the facts necessarily found by the jury, and the undisputed
facts of record, this case law amply demonstrates that the omission in
the jury instruction was not fundamental error in this case. See Cook,
170 Ariz. at 50, 821 P.2d at 741.
N. Prosecutorial misconduct
Defendant claims that prosecutorial misconduct
deprived him of his due process rights. Prosecutorial misconduct does
not require reversal “unless the defendant has been denied a fair trial
as a result of the actions of counsel.” State v. Dumaine, 162 Ariz. 392,
400, 783 P.2d 1184, 1192 (1989) (citing State v. Hallman, 137 Ariz. 31,
37, 668 P.2d 874, 880 (1983)); accord Darden v. Wainwright, 477 U.S.
168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986). [The prosecutor]
is the representative not of an ordinary party to a controversy, but of
a sovereignty whose obligation to govern impartially is as compelling as
its obligation to govern at all; and whose interest, therefore, in a
criminal prosecution is not that it shall win a case, but that justice
shall be done.... [W]hile he may strike hard blows, he is not at liberty
to strike foul ones. It is as much his duty to refrain from improper
methods calculated to produce a wrongful conviction as it is to use
every legitimate means to bring about a just one. Berger v. United
States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935); accord
Pool v. Superior Court, 139 Ariz. 98, 103, 677 P.2d 261, 266 (1984).
With this standard in mind, because no objection was made, we again
review for fundamental error.
1. Comments about the jury questionnaire
During voir dire, the prosecutor stated that some of
the questions in the questionnaire “may seem a little silly to you, and
some of them are silly, as a matter of fact, but please be very honest
when you fill out this form.” Defense counsel told the venire that he
wrote the questionnaire and took exception to its characterization as
silly. While the prosecutor's comment was inappropriate, we believe that
it falls far short of actionable misconduct. Furthermore, the trial
court told the venire: I have gone through all of these proposed
questions and approved them, so they are approved questions by the Court.
Don't worry about what the attorneys think about them. I have approved
them and they should all be answered by you truthfully. We find no error
and, accordingly, no fundamental error.
2. Vouching for witnesses
It is black letter law that it is improper for a
prosecutor to vouch for a witness. Dumaine, 162 Ariz. at 401, 783 P.2d
at 1193. Two forms of impermissible prosecutorial vouching exist: (1)
when the prosecutor places the prestige of the government behind its
witness, and (2) where the prosecutor suggests that information not
presented to the jury supports the witness's testimony. In addition, a
lawyer is prohibited from asserting personal knowledge of facts in issue
before the tribunal unless he testifies as a witness. Id. (citation
omitted). The prosecutor in this case made the following declaration in
opening statement:
I promise you that I'm gonna be honest with you, that
the witnesses that I call, there is a reason for them to be here. They
have something important to tell you. I'm not gonna waste your time. If
there is [sic] two or three people that did the same thing in this case,
you will probably only hear from one of them. It's gonna be a
straightforward, no nonsense case. .... But as you know, we wouldn't be
here unless what I'm about to tell you really happened.
This statement clearly includes both forms of
improper vouching. Dumaine, 162 Ariz. at 401, 783 P.2d at 1193. If
Defendant had objected, the court should have sustained the objection
and instructed the jury to disregard the remark. Such judicial action
would have been appropriate even absent an objection. Cf. Johnson, 333
U.S. at 54, 68 S.Ct. at 395. There was no objection, however, and we
again review for fundamental error.
In determining whether a prosecutor's improper
statement constitutes fundamental error, we examine, under the
circumstances, whether the jurors were probably influenced and whether
the statement probably denied Defendant a fair trial. See, e.g., Atwood,
171 Ariz. at 611, 832 P.2d at 628; Dumaine, 162 Ariz. at 401, 783 P.2d
at 1193; Valdez, 160 Ariz. at 15, 770 P.2d at 319. The focus is on the
fairness of the trial, not the culpability of the prosecutor. Atwood,
171 Ariz. at 608, 832 P.2d at 625; Valdez, 160 Ariz. at 15, 770 P.2d at
319. Given the entire record, we do not believe that the statement
tipped the scales of justice and denied Defendant a fair trial. Thus,
the prosecutor's statement, although highly improper, did not constitute
fundamental error in this case.
3. Speculation that the victim was tortured
In opening statement, the prosecutor suggested that
the victim was “perhaps tortured.” In closing argument, the prosecutor
stated that, after the victim's hands were tied, she may have been
“forced into some sort of torment.” Defendant claims that these
statements were unsupported by evidence and thus improper.
The comment during opening statement that the victim
was “perhaps tortured” was improper. Opening statement is counsel's
opportunity to tell the jury what evidence they intend to introduce. See
Charles M. Smith, Arizona Practice—Civil Trial Practice § 455, at 395
(1986). Opening statement is not a time to argue the inferences and
conclusions that may be drawn from evidence not yet admitted. Id. § 455,
at 395; § 457, at 396. There was no direct evidence that the victim was
tortured, and the record does not indicate that any such evidence was
anticipated when opening statements were made. Accordingly, the
reference to “torture” during opening statement was improper.
The comment during closing argument that the victim
may have been tormented was proper. Unlike opening statements, during
closing arguments counsel may summarize the evidence, make submittals to
the jury, urge the jury to draw reasonable inferences from the evidence,
and suggest ultimate conclusions. Id. § 527, at 455–56; see also State
v. Runningeagle, 176 Ariz. 59, 64, 859 P.2d 169, 174 (1993); Amaya–Ruiz,
166 Ariz. at 171, 800 P.2d at 1279. Given the evidence presented at
trial, we find no impropriety in the prosecutor suggesting— during
closing argument —that the victim had been tormented. The nine-year-old
victim was abducted, taken to a remote area, her clothes removed and
scattered, her hands tied, and her head beaten. Such evidence would
permit a jury to infer that she had been subject to both physical and
emotional torment.
Thus, we hold that the comment during opening
statement was improper but find no reason to reverse. While, the comment
during opening statement was improper at that point, it was a reasonable
inference from evidence later introduced and would have been proper
during closing argument. Therefore, under the facts of this case, the
improper comment did not deprive Defendant of a fair trial. We find no
fundamental error.
4. Reference to the victim's rights
In opening statement, after mentioning that Defendant
deserved a fair trial, the prosecutor added that your goal is not
necessarily just to give Ricky Bible a fair trial. Your goal in this
case is going to be justice. And justice doesn't mean just giving Ricky
Bible a fair trial. It means looking at the rights of other people, too,
like [the victim], and those rights include those that are enumerated in
the Declaration of Independence, life, liberty and the pursuit of
happiness. And there won't be any of that for [the victim].
Remarkably, during closing argument, the prosecutor
made a more detailed reference to the victim's rights: [T]he defendant
and all defendants have rights and a right to a fair trial. There has
been a fair trial. But there are other rights. All of us have rights,
including [the victim]. Perhaps the most succinct rights, the most
succinct discussion of the sort of rights that we all, including [the
victim], have, were described in the Declaration of Independence in
1776. .... [The victim's] rights were terminated on June 6 of 1988. She
has no right to life. That was terminated with blows to her head. There
is no liberty for a nine-year-old girl who is taken off of her bike,
tied up and taken away from her family. And there certainly is no
pursuit of happiness from the grave.... Your duty is to protect the
defendant's rights and also [the victim's] rights. Defendant challenges
these statements.
It cannot be doubted that victims of crime, and their
families, have certain rights. See Ariz. Const. art. II, § 2.1; A.R.S.
§§ 13–4401 to 13–4437. It is equally clear, however, that these rights
do not, and cannot, conflict with a defendant's right to a fair trial.
U.S. Const. amend. VI, XIV; Ariz. Const. art. II, § 4; see generally
State ex rel. Romley v. Superior Court, 172 Ariz. 232, 836 P.2d 445 (Ct.App.1992).
The jury finds facts and applies the law through the judge's
instructions. A trial is “fair” when, according to legal principles and
requirements, a jury's determination is based on the evidence admitted
and the instructions given.
Appeals to the jury's innate sense of fairness
between a defendant and the victim may have surface appeal but cannot
prevail. A jury in a criminal trial is not expected to strike some sort
of balance between the victim's and the defendant's rights. The judge,
not the jury, balances conflicting rights; the jury must find the facts
and apply the judge's instructions. Accordingly, the clear weight of
authority shows the impropriety of the prosecutor's statements. See, e.g.,
McNair v. State, 1992 WL 172200, at *17–*19, –––So.2d ––––, –––– – ––––
(Ala.Cr.App.Ct. July 24, 1992); Jennings v. State, 453 So.2d 1109,
1113–14 (Fla.1984), vacated on other grounds, 470 U.S. 1002, 105 S.Ct.
1351, 84 L.Ed.2d 374 (1985); People v. Henderson, 142 Ill.2d 258, 154
Ill.Dec. 785, 815–16, 568 N.E.2d 1234, 1264–65 (1990), cert. denied, 502
U.S. 882, 112 S.Ct. 233, 116 L.Ed.2d 189 (1991); State v. Marshall, 123
N.J. 1, 586 A.2d 85, 171 (1991), cert. denied, 507 U.S. 929, 113 S.Ct.
1306, 122 L.Ed.2d 694 (1993); Bell v. State, 724 S.W.2d 780, 802–03 (Tex.Cr.App.1986),
cert. denied, 479 U.S. 1046, 107 S.Ct. 910, 93 L.Ed.2d 860 (1987). The
statements encouraged the jury to decide the case on emotion and ignore
the court's instructions. The statements should have been stricken and
followed with corrective jury instructions. Because there were no
objections, however, we again look for fundamental error.
The cases cited above, under their facts, found that
improper references to victim's rights did not result in reversible
error. See McNair, 1992 WL 172200, at *19, 653 So.2d at ––––; Jennings,
453 So.2d at 1113–14; Henderson, 154 Ill.Dec. at 815–16, 568 N.E.2d at
1264–65; Marshall, 586 A.2d at 171; Bell, 724 S.W.2d at 803. In this
case, the preliminary and final jury instructions focused the relevant
inquiry and helped ensure that Defendant received a fair trial. These
instructions, coupled with the strength of the evidence against
Defendant, show that Defendant was not denied a fair trial. See State v.
Slemmer, 170 Ariz. 174, 178, 823 P.2d 41, 45 (1991); Cook, 170 Ariz. at
50, 821 P.2d at 741. Thus, the victim's rights statements did not
constitute fundamental error in this case.
O. Death sentence issues
In sentencing Defendant on the murder conviction, the
trial court found three aggravating circumstances: 1) that Defendant
previously had been convicted of felonies involving the use or threat of
violence; 2) that he committed the murder in an especially cruel manner;
and 3) that he was an adult and the victim was less than fifteen years
of age. Finding that no mitigating circumstances outweighed these
aggravating circumstances, the court sentenced Defendant to death.
Defendant makes several challenges to the imposition of the death
penalty.
“[W]e must review carefully and with consistency
death penalty cases and not engage in a ‘cursory’ or ‘rubber stamp’ type
of review.” State v. Watson, 129 Ariz. 60, 63, 628 P.2d 943, 946 (1981).
We independently search the record to determine whether the death
sentence is appropriate. See State v. Lopez, 174 Ariz. 131, 153, 847
P.2d 1078, 1090 (1992). In making our independent review, we obey the
principle that the Eighth Amendment requires the State to “ ‘channel the
sentencer's discretion by clear and objective standards that provide
specific and detailed guidance, and that make rationally reviewable the
process for imposing a sentence of death.’ ” Arave v. Creech, 507 U.S.
463, ––––, 113 S.Ct. 1534, 1540, 123 L.Ed.2d 188 (1993) (quoting Lewis
v. Jeffers, 497 U.S. 764, 774, 110 S.Ct. 3092, 3099, 111 L.Ed.2d 606
(1990)). We also bear in mind that Arizona's system of capital
sentencing must perform a genuine, narrowing function. It is not enough
that an aggravating circumstance is determinate; the sentencing scheme
must “ ‘genuinely narrow the class of persons eligible for the death
penalty.’ ” Creech, 507 U.S. at ––––, 113 S.Ct. at 1542 (quoting Zant v.
Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235
(1983)). Thus, aggravating circumstances must enable our trial judges
“to distinguish those who deserve capital punishment from those who do
not ... [and] must provide a principled basis for doing so.” Creech, 507
U.S. at ––––, 113 S.Ct. at 1542.
1. Aggravating circumstances
a. Prior violent felonies
Defendant claims the court erred in finding that his
1981 convictions for kidnapping and sexual assault were felonies
involving the use or threat of violence on another person. See A.R.S. §
13–703(F)(2). “If, under the statutory definition of the crime, the
defendant could commit or be convicted of the crime without the use or
threat of violence, the prior conviction cannot qualify as a statutory
aggravating circumstance.” State v. Fierro, 166 Ariz. 539, 549, 804 P.2d
72, 82 (1990); accord Schaaf, 169 Ariz. at 333, 819 P.2d at 919.
The State initially asks that we overrule Fierro and
Schaaf. We decline to do so and reaffirm their rule. See Schaaf, 169
Ariz. at 333, 819 P.2d at 919 (refusing similar request to overrule
State v. Gillies, 135 Ariz. 500, 662 P.2d 1007 (1983), cert. denied, 470
U.S. 1059, 105 S.Ct. 1775, 84 L.Ed.2d 834 (1985)). The State concedes,
and we find, that kidnapping under A.R.S. § 13–1304(A) may be committed
without the use or threat of violence. See A.R.S. § 13–1301(2). Thus, we
turn to the sexual assault conviction.
In 1981, sexual assault was defined as “intentionally
or knowingly engaging in sexual intercourse or oral sexual contact with
any person not his or her spouse without consent of such person.” A.R.S.
§ 13–1406(A). Although “without consent” included use or threats of
force, A.R.S. § 13–1401(5)(a), it also included intentionally deceiving
a victim, A.R.S. §§ 13–1401(5)(c), (d). Furthermore, a victim was
incapable of valid consent “by reason of mental disorder, drugs,
alcohol, sleep or any other similar impairment.” A.R.S. § 13–1401(5)(b).
Thus, neither the use nor the threat of violence was a necessary element
for sexual assault. As a result, the trial court erred by relying on the
1981 kidnapping and sexual assault convictions in finding an aggravating
circumstance under A.R.S. § 13–703(F)(2).
b. Especially Cruel
Defendant argues that the prosecutor did not show
that the murder was especially cruel. See A.R.S. § 13–703(F)(6).FN41 To
properly find cruelty, the State “must prove beyond a reasonable doubt
that the victim was conscious and suffered pain or distress at the time
of the offense.” State v. Jimenez, 165 Ariz. 444, 453, 799 P.2d 785, 794
(1990). The pain or distress may be mental or physical. See State v.
Hinchey, 165 Ariz. 432, 438, 799 P.2d 352, 358 (1990), cert. denied, 499
U.S. 963, 111 S.Ct. 1589, 113 L.Ed.2d 653 (1991); State v. Libberton,
141 Ariz. 132, 139, 685 P.2d 1284, 1291 (1984). If the evidence of
consciousness is inconclusive, no cruelty has been shown. See State v.
Medrano, 173 Ariz. 393, 397, 844 P.2d 560, 564 (1992).
FN41. The trial court found that the murder was
heinous and depraved but that, when “compared to other murder cases, the
murder was not especially heinous and depraved within the legal meaning.”
But see Roscoe, 145 Ariz. at 226–27, 700 P.2d at 1326–27. Heinous
conduct and depraved conduct are not before us. See State v. Richmond,
136 Ariz. 312, 320, 666 P.2d 57, 65, cert. denied, 464 U.S. 986, 104
S.Ct. 435, 78 L.Ed.2d 367 (1983).
The trial court found that the victim suffered both
physical and mental pain prior to death. The State's medical expert
could not say that the victim was conscious during or after any of the
blows to her head. Thus, this evidence cannot support a cruelty finding.
See Jimenez, 165 Ariz. at 454, 799 P.2d at 795. Other facts do support
the finding. The victim's clothes were removed intact, without being
torn or cut, thus indicating her hands were tied after she was naked.
The fact that her hands were bound indicates that she was conscious and
tied-up to prevent struggling. There would be no need to bind an
unconscious victim. Her hands were bound tightly, leaving indentations
on her wrists observable more than three weeks later. Reasonable
inferences from this evidence are that the victim was alive, conscious,
and stripped before she was bound and that she was conscious when bound.
This evidence strongly supports a finding that a
conscious nine-year-old victim suffered physical and, even more, mental
anguish before being killed. Obviously, the victim would have been
terrified. Nor can it be argued that the mental and physical pain
inflicted was unforeseen or fortuitous. Thus, we find that the killing
was especially cruel. See Roscoe, 145 Ariz. at 226, 700 P.2d at 1326;
cf. State v. Poland, 132 Ariz. 269, 285, 645 P.2d 784, 800 (1982)
(“There was no evidence of suffering by the guards. The autopsy revealed
no evidence that they had been bound or injured prior to being placed in
the water.”).
c. Adult defendant and child victim
There is no question about the third aggravating
circumstance. When the victim was killed, she was less than fifteen
years old and Defendant was an adult. Thus, the A.R.S. § 13–703(F)(9)
aggravating circumstance was present. See State v. Stanley, 167 Ariz.
519, 528, 809 P.2d 944, 953, cert. denied, 502 U.S. 1014, 112 S.Ct. 660,
116 L.Ed.2d 751 (1991).
2. Mitigating circumstances
Defendant argues that the trial court erred in
considering mitigating evidence. Specifically, Defendant claims that the
court improperly rejected four mitigating circumstances: 1. Defendant's
ability to appreciate the wrongfulness of his conduct or conform his
conduct to the requirements of law was substantially impaired; 2.
Defendant was intoxicated and suffering from withdrawal symptoms at the
time of the offense; 3. Defendant's difficult family history; and 4.
Defendant's substantial family support. We consider Defendant's claims
in turn.
The trial court must consider the factors in A.R.S. §
13–703(G) as well as “any aspect of the defendant's character or record
and any circumstance of the offense relevant to determining whether a
sentence less severe than death is appropriate.” State v. Greenway, 170
Ariz. 155, 169, 823 P.2d 22, 36 (1992) (citing cases). Defendant must
prove factors supporting mitigation by a preponderance of the evidence.
State v. Brewer, 170 Ariz. 486, 504, 826 P.2d 783, 801, cert. denied,
506 U.S. 872, 113 S.Ct. 206, 121 L.Ed.2d 147 (1992). We independently
examine the mitigating evidence to determine whether the death sentence
is justified. Fierro, 166 Ariz. at 551–52, 804 P.2d at 84–85.
The one statutory mitigating factor argued by
Defendant is that his “capacity to appreciate the wrongfulness of his
conduct or to conform his conduct to the requirements of law was
significantly impaired, but not so impaired as to constitute a defense.”
A.R.S. § 13–703(G)(1). Defendant argues that his substance abuse
contributed to the offense and is a mitigating circumstance. Defendant's
medical expert indicated that absent drug consumption and withdrawal
symptoms, it was less likely that Defendant would have killed and that
addiction and withdrawal made it more difficult for him to conform to
the requirements of law. Other testimony indicated that Defendant had a
history of drug use and that, absent drug use, he is a caring person.
Defendant's expert admitted that the drug history he
relied on came largely from Defendant. This expert had reservations
about Defendant's truthfulness regarding his criminal activities and
admitted that nothing indicated Defendant was unable to appreciate the
wrongfulness of his actions. Although Defendant claimed to have been
deprived of alcohol and drugs for several days before the murder, his
expert admitted that Defendant had been drinking during that time period.
Furthermore, when arrested, the GMC Defendant was driving contained
eighteen full mini-bottles of vodka. There was no evidence Defendant was
“suffering” from alcohol deprivation. Nor does the record support a
claim that Defendant was intoxicated when the offense was committed;
testimony indicated that he acted normally both before and after his
arrest. There is no evidence that Defendant used drugs or, absent the
two empty 50–milliliter vodka bottles, consumed alcohol the day of the
murder.
In sum, there is little evidence supporting
Defendant's mitigation claim under A.R.S. § 13–703(G)(1). On this record
we find no substantial impairment of Defendant's capacity to appreciate
the wrongfulness of his conduct or to conform his conduct to the
requirements of the law. See, e.g., Stanley, 167 Ariz. at 528–31, 809
P.2d at 953–56; State v. Wallace, 160 Ariz. 424, 426, 773 P.2d 983, 985
(1989), cert. denied, 494 U.S. 1047, 110 S.Ct. 1513, 108 L.Ed.2d 649
(1990); Greenawalt, 128 Ariz. at 172–73, 624 P.2d at 850–51. Thus,
Defendant did not establish the A.R.S. § 13–703(G)(1) mitigating factor.
We must now determine whether there is other mitigating evidence to
weigh, even though it may not constitute an enumerated statutory
mitigating factor. See State v. McMurtrey, 136 Ariz. 93, 101–02, 664
P.2d 637, 645–46, cert. denied, 464 U.S. 858, 104 S.Ct. 180, 78 L.Ed.2d
161 (1983).
As noted, there was no real evidence that Defendant
was intoxicated at the time of the offense. The evidence addressing
historical familial abuse was marginal and equivocal as to its causal
connection with the murder. Defendant's mother did not indicate that
Defendant was abused or neglected when he was growing up, and Defendant
made no showing that any difficult family history had anything to do
with the murder, see Wallace, 160 Ariz. at 427, 773 P.2d at 986.
Although Defendant's support and love for and by family and friends
might have some mitigating force, it does not require a finding of
mitigation sufficient to call for leniency. See State v. Carriger, 143
Ariz. 142, 162, 692 P.2d 991, 1011 (1984), cert. denied, 471 U.S. 1111,
105 S.Ct. 2347, 85 L.Ed.2d 864 (1985). In sum, our independent review of
the record shows no significant mitigating evidence. Cf. State v.
Herrera, Jr. I, 176 Ariz. 21, 35, 859 P.2d 131, 145 (1993); Cook, 170
Ariz. at 64, 821 P.2d at 755. FN42. Defendant argues that we should
conduct an independent proportionality review of his death sentence. A
majority of the court rejected this procedural mechanism to review the
propriety of the death penalty. Salazar, 173 Ariz. at 416–17, 844 P.2d
at 583–84.
P. Should this court reweigh or remand for
resentencing?
Having independently determined that one of the three
aggravating circumstances found by the trial court does not exist, and
that the trial court correctly characterized the lack of mitigating
evidence, we must decide whether this court should reweigh to either
affirm or reduce the death sentence or whether the case should be
remanded to the trial court for resentencing. Our obligation is to
independently decide whether the death sentence is appropriate. See
Lopez, 174 Ariz. at 153, 847 P.2d at 1090; Watson, 129 Ariz. at 62–63,
628 P.2d at 945–46. We do so to ensure that the death penalty will not
be imposed arbitrarily or on an aberrant basis and is reserved for truly
exceptional cases, setting the defendant apart from others guilty of
first degree murder and making death the appropriate sanction. See
Creech, 507 U.S. at ––––, 113 S.Ct. at 1542; Stephens, 462 U.S. at 877,
103 S.Ct. at 2742; State v. Richmond, 114 Ariz. 186, 195–96, 560 P.2d
41, 50–51 (1976).
In some cases, and this is one, we have found that
the trial court erred in its conclusions regarding aggravating
circumstances. See, e.g., Hinchey, 165 Ariz. at 440, 799 P.2d at 360;
State v. Lopez, 163 Ariz. 108, 116, 786 P.2d 959, 967 (1990); State v.
Wallace, 151 Ariz. 362, 369, 728 P.2d 232, 239 (1986), cert. denied, 483
U.S. 1011, 107 S.Ct. 3243, 97 L.Ed.2d 748 (1987). In other cases, we
have found that the trial court incorrectly evaluated or failed to
recognize important mitigating evidence. See, e.g., State v. Marlow, 163
Ariz. 65, 71–72, 786 P.2d 395, 401–02 (1989); State v. Rockwell, 161
Ariz. 5, 15–16, 775 P.2d 1069, 1079–80 (1989); State v. Stevens, 158
Ariz. 595, 599, 764 P.2d 724, 728 (1988). In such cases, our response
has been more consistent in theory than in practice. See Karen L. Hinse,
Note, Appellate Review of Death Sentences: An Analysis of the Impact of
Clemons v. Mississippi in Arizona, 34 Ariz.L.Rev. 141, 157 (1992)
(“Hinse, 34 Ariz.L.Rev.”).
In Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct.
1441, 108 L.Ed.2d 725 (1990), the United States Supreme Court held that
the Eighth and Fourteenth Amendments of the United States Constitution
do not prevent a state supreme court, engaged in appellate review of a
death sentence, from reweighing the evidence and affirming even though
the court finds that the trial judge erred in the sentencing process.
Clemons, 494 U.S. at 748–49, 110 S.Ct. at 1448–49. Indeed, the United
States Constitution allows state courts to weigh the aggravating and
mitigating evidence at any stage of the proceeding. See Richmond v.
Lewis, 506 U.S. 40, 113 S.Ct. 528, 121 L.Ed.2d 411 (1992). Although
Clemons and Richmond state that the United States Constitution allows us
to reweigh at the appellate level, they do not compel us to do so. See
Clemons, 494 U.S. at 754, 110 S.Ct. at 1451.
Both before and after Clemons, some states adopted a
procedure of appellate reweighing for altered aggravation or mitigation
findings. Compare Sellers v. Oklahoma, 809 P.2d 676, 691 (Okla.Crim.Ct.App.)
(post- Clemons reweighing on appeal), cert. denied, 502 U.S. 912, 112
S.Ct. 310, 116 L.Ed.2d 252 (1991) with Stouffer v. State, 742 P.2d 562,
564 (Okla.Crim.Ct.App.1987) (pre- Clemons reweighing on appeal), cert.
denied, 484 U.S. 1036, 108 S.Ct. 763, 98 L.Ed.2d 779 (1988); State v.
Otey, 236 Neb. 915, 464 N.W.2d 352, 361 (post- Clemons reweighing on
appeal in post-conviction relief case), cert. denied, 501 U.S. 1201, 111
S.Ct. 2279, 115 L.Ed.2d 965 (1991) with State v. Peery, 199 Neb. 656,
261 N.W.2d 95, 102 (1977) (pre- Clemons reweighing on appeal), cert.
denied, 439 U.S. 882, 99 S.Ct. 220, 58 L.Ed.2d 194 (1978). In Arizona,
however, even after Clemons, we have continued to focus on whether the
record compels a particular finding in light of the correct assessment
of mitigating and aggravating factors. Compare Medrano, 173 Ariz. at
398, 844 P.2d at 565 (“Because one of the two statutory aggravating
circumstances found by the trial court must be set aside, and we can
only speculate whether the court would have found mitigation sufficient
to overcome the single remaining aggravating circumstance, we remand for
another hearing and resentencing.”) with Robinson, 165 Ariz. at 60, 796
P.2d at 862 (“[T]he elimination of one aggravating factor does not
mandate a remand to the trial court for resentencing when the record
compels a finding on the issue as a matter of law.”).
The State has urged this court to eliminate remands
for resentencing and reweigh all cases as part of the review process.
From an efficiency standpoint, this would be useful by saving time and
expediting the process. Of more weight, perhaps, is the argument that
remand for resentencing exposes survivors and members of the victim's
family to additional emotional trauma. The State has argued that, if we
find the trial court erred in sentencing, it would be better in some
cases to reduce the sentence to life rather than remand for a new
sentencing hearing. This may well be so, and we urge the State to be
candid with this court when such issues arise in the future.
Matters as important as life or death, however,
cannot be decided by using efficiency and convenience as the best and
only tests. Painstaking care and pursuit of accuracy and justice are
much more desirable. Notwithstanding the trauma to surviving family
members, there are cases in which remand is unavoidable. When additional
evidence is available or required, that evidence must be presented to
the trial court. This court has neither facilities for, nor any custom
of, taking evidence, and we cannot decide questions of fact affecting
the imposition of sentence by means of evidentiary affidavits. Cf. State
v. Rumsey, 136 Ariz. 166, 168–75, 665 P.2d 48, 50–57 (1983) (discussing
similarity between capital sentencing hearing and trial and finding that
double jeopardy clause applies to sentencing), aff'd,Arizona v. Rumsey,
467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984). In any capital case
where additional evidence is to be received, remand is required. “[W]e
perform as an appellate court, not as a trial court,” Rumsey, 136 Ariz.
at 173, 665 P.2d at 55, and we have repeatedly rejected the State's
arguments to the contrary, see, e.g., Fierro, 166 Ariz. at 555, 804 P.2d
at 88; Hinchey, 165 Ariz. at 440, 799 P.2d at 360; Gillies, 135 Ariz. at
516, 662 P.2d at 1023.
Some cases will not require the submission of
additional evidence but only the reweighing and balancing of the
evidence. Many of these cases will involve situations in which the trial
judge erred with respect to aggravating or mitigating circumstances and
in which there is mitigating evidence of some weight. In these cases,
too, remand for resentencing is the better rule. As the United States
Supreme Court noted, we have an appellate task in reviewing death
sentences and we have placed the sentencing authority in all criminal
cases, and especially capital cases, with the trial judge. Rumsey, 467
U.S. at 209–10, 104 S.Ct. at 2309. “Law and policy would indicate that
the trial judge should again make the [sentencing] determination.”
Gillies, 135 Ariz. at 516, 662 P.2d at 1023. There are important reasons
for this procedural rule.
First, this court's jurisdiction is appellate. Rumsey,
136 Ariz. at 173, 665 P.2d at 55. We have very limited original
jurisdiction. See Ariz. Const. art. VI, § 5, cls. 1–4. In capital cases
on direct appeal, we review for error and to determine whether the
penalty is appropriate. Even in those cases in which this court is the
ultimate finder of fact, we proceed through a master, committee, or
commission. See La Paz County v. Yuma County, 153 Ariz. 162, 163–64, 735
P.2d 772, 773–74 (1987); Ariz.R.Civ.P. 53; Ariz.R.Sup.Ct. 47, 48;
Ariz.R.P.Comm.Jud.Conduct 11, 12.
On appeal, in many cases it is simply impossible to
determine how the trial judge—who heard the evidence and saw the
witnesses—evaluated and weighed that evidence and testimony. Without
these imperative determinations, the aggravating and mitigating factors
cannot be balanced. See, e.g., Lopez, 174 Ariz. at 155–56, 847 P.2d at
1092–93 (Feldman, C.J., specially concurring). This is especially true
because the trial judge is required by statute to consider at sentencing
all evidence admitted at trial. A.R.S. § 13–703(C). Furthermore, the
process of weighing is not scientific but, rather, inherently subjective.
There is no mathematical formula to apply and none is required. Cf.
Creech, 507 U.S. at ––––, 113 S.Ct. at 1544. The weighing process
conducted in sentencing contains no linear equation allowing us to
determine, with much certainty, the effect an error may have had on the
outcome.
The sentencing statute provides that, following a
first degree murder conviction, “the judge who presided at the trial or
before whom the guilty plea was entered ... shall conduct [the]
sentencing hearing.” A.R.S. § 13–703(B) (emphasis added). The only
exception to this mandate is when the trial judge dies, resigns, or is
incapacitated or disqualified. Id. This directive certainly reflects a
legislative desire that, when possible, the same judge who personally
saw and heard all of the evidence must evaluate and weigh that evidence
for sentencing.
Even if this court could somehow recreate the many
valuable intangibles accompanying live testimony, the practicalities of
our docket do not allow us to do so. Although capital cases have a
priority, the sheer volume of cases we must process each week, month,
and year curtails our review process. The volume of other judicial work,
as well as the voluminous nature of the record in capital cases (in this
case more than 120 volumes of testimony and numerous exhibits and
filings easily exceeding 15,000 pages) simply prevents each Justice of
this court from making a personal, intensive, complete, and time-consuming
study of the entire record of each case.
This is not to imply that the record goes unreviewed.
The court and its staff review and read every word of the record in each
capital case. The evaluation of the facts of a case, however, is in part
based on staff review of the record. Thus, in a practical sense, the
trial judge is by far the best person to bear the responsibility for
sentence imposition. Other than the defendant and the attorneys, the
trial judge—the one individual who received every single exhibit and
heard every word uttered in court—is by far a better tool of justice to
determine the appropriate sentence.
In addition, part of the rationale on which Clemons
relied was the fact that “reviewing courts” usually conduct
proportionality reviews and are therefore capable of providing
“individualized and reliable sentences.” Clemons, 494 U.S. at 748–50,
110 S.Ct. at 1449; see also Hinse, 34 Ariz.L.Rev. at 152. This court,
however, has concluded that proportionality reviews no longer should be
a part of appellate review in capital cases. See Salazar, 173 Ariz. at
416–17, 844 P.2d at 583–84.
Finally, as is often said, the death sentence is
different from any other criminal penalty. Solem v. Helm, 463 U.S. 277,
294, 103 S.Ct. 3001, 3012, 77 L.Ed.2d 637 (1983). No system based on
human judgment is infallible. Thus, with the death penalty, we have
taken, and should continue to take, the extra step—indeed walk the extra
mile—to ensure fairness and accuracy in criminal cases. In light of the
trial judge's unique familiarity with the facts of the case, remand is
an extra step that should be taken in all but the rarest cases.
In sum, we conclude that when new evidence must be
received or reweighing and balancing of aggravating and mitigating
factors and evidence are required, the best approach is our traditional
method. The trial judge is in the best position to evaluate credibility
and accuracy, as well as draw inferences, weigh, and balance. This,
after all, is the careful method that we follow in civil appeals and, we
believe, is even more appropriate in capital cases. Therefore, in those
cases in which the trial judge has erred in the sentencing process and
there is mitigating evidence of more than de minimis weight, we will
remand unless the State concedes that sentence reduction is preferable
to remand. With these principles in mind, we turn to the facts of the
present case.
The trial judge found three aggravating circumstances.
We conclude that one of those was improperly found. Two aggravating
circumstances, however, were correctly found. Furthermore, the trial
judge properly found nothing of value by way of mitigation. Although
Defendant's two previous convictions do not qualify as an aggravating
circumstance, they certainly do not constitute mitigating evidence. From
our review of the record, nothing submitted to the trial court qualifies
as more than de minimis evidence of mitigation. We do not believe that
Defendant's habitual drug use is of any value as mitigation in this
case, given the fact that there was no evidence it significantly
impaired his capacity to control his conduct on the day in question.
There is simply nothing to weigh or balance in this case. Thus, in light
of the unusual facts of this case, we are able to affirm the imposition
of the death sentence even though we have found that one of the three
aggravating circumstances was inapplicable.
Q. Other issues
Defendant raises a number of other issues, all of
which we have considered. The analysis applicable to these issues does
not merit express discussion in this long opinion. Thus, we reject these
claims without express discussion. See State v. Gillies, 142 Ariz. 564,
573, 691 P.2d 655, 664 (1984), cert. denied, 470 U.S. 1059, 105 S.Ct.
1775, 84 L.Ed.2d 834 (1985).
DISPOSITION
We have examined the record for fundamental error
pursuant to A.R.S. § 13–4035 and have found none. Accordingly, we affirm
Defendant's convictions and sentences. MOELLER, Vice C.J., and CORCORAN,
ZLAKET and MARTONE, JJ., concur.
