Justia.com Opinion Summary: After a jury trial, Jahmari Manuel was convicted of first degree murder and other offenses related to the death of Darrell Willeford. The jury determined that Manuel should be sentenced to death for the murder. The Supreme Court affirmed Manuel's convictions and sentences, holding (1) the trial court did not err in denying Manuel's notice of change of judge because the notice was untimely under Ariz. R. Crim. P. 10.2(a); (2) the trial court did not err in denying Manuel's motion to suppress a pistol found in his hotel room when he was arrested because the officer discovered the gun in plain view; (3) Manuel did not show that certain remarks that the prosecutor made at trial caused prejudice sufficient to constitute fundamental error, and the instances of alleged misconduct did not warrant reversal when considered cumulatively; (4) the trial judge correctly answered a juror's question in the penalty phase; (5) the judge did not abuse her discretion in denying Manuel's motion for new trial; and (6) the jury did not abuse its discretion by determining that Manuel should be sentenced to death.
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SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA,
)
)
Appellee, )
)
v.
)
)
)
JAHMARI ALI MANUEL,
)
)
Appellant. )
)
)
__________________________________)
Arizona Supreme Court
No. CR-09-0253-AP
Maricopa County
Superior Court
No. CR2004-022846-001
O P I N I O N
Appeal from the Superior Court in Maricopa County
The Honorable Susan M. Brnovich, Judge
AFFIRMED
________________________________________________________________
THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL
Phoenix
By
Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
John Pressley Todd, Assistant Attorney General
Attorneys for State of Arizona
STEPHEN M. JOHNSON
Phoenix
Attorney for Jahmari Ali Manuel
________________________________________________________________
B A L E S, Justice
¶1
This automatic appeal arises from Jahmari Ali Manuel’s
conviction and death sentence for murdering Darrell Willeford.
We
have
jurisdiction
under
Article
6,
Section
Arizona Constitution and A.R.S. § 13-4031 (2011).
5(3)
of
the
FACTS AND PROCEDURAL BACKGROUND
¶2
In March 2004, Manuel walked into a Phoenix pawn shop
carrying
a
pistol
covered
with
a
blue
plastic
bag
and
immediately began firing at Willeford, the shop owner, who fell
to the floor behind a counter.
Manuel walked around the counter
and continued firing, ultimately shooting Willeford ten times.
Manuel
then
took
two
guns
from
the
shop.
surveillance camera recorded these events.
The
pawn
shop’s
At the crime scene,
police recovered the plastic bag, which contained shell casings
and DNA that was later matched to Manuel’s DNA profile.
In
October 2004, police arrested Manuel at a North Carolina hotel.
¶3
Manuel
degree
weapons.
burglary,
was
indicted
armed
for
first
robbery,
and
degree
murder,
misconduct
first
involving
After finding Manuel guilty on all counts, the jury
found one aggravating factor, pecuniary gain, see A.R.S. § 13751(F)(5) (2011), and determined that Manuel should be sentenced
to death for the murder.
DISCUSSION
¶4
Manuel raises six issues on appeal.
For the reasons
explained below, we affirm his convictions and sentences.
A. Denial of Motion for Change of Judge
¶5
Manuel argues that the trial court erred in denying
his request for a change of judge pursuant to Arizona Rule of
Criminal Procedure 10.2.
We review de novo the trial court’s
2
interpretation of the rule.
See Pima Cnty. v. Pima Cnty. Law
Enforcement Merit Sys. Council, 211 Ariz. 224, 227 ¶ 13, 119
P.3d 1027, 1030 (2005).
¶6
Rule 10.2 grants the right to a peremptory change of
judge.
At the time of Manuel’s trial, Rule 10.2(a) provided
that “[i]n any death penalty case, any party shall be entitled
to request a change of judge as a matter of right no later than
ten (10) days after the state files a notice of intention to
seek
the
death
penalty.”
(emphasis added).
Ariz.
R.
Crim.
P.
10.2(a)
(2009)
In contrast, Rule 10.2(c) provided that a
notice of change of judge could be filed “in a non-death penalty
case” within ten days after “actual notice to the requesting
party of the assignment of the case to a judge” if a notice had
not earlier been filed.
(Effective January 1, 2011, Rule 10.2
was amended to eliminate the distinction between capital and
non-capital cases.)
¶7
Manuel was arraigned in December 2004 and the State
filed its notice of intent to seek the death penalty in February
2005.
In June 2009, the case was reassigned to a new judge.
Within ten days of the reassignment, Manuel filed a notice of
change of judge, which the trial court denied as untimely.
¶8
Manuel argues that the trial court should have granted
his notice of change of judge because it did not attack the
court’s “dignity or integrity” and there is “no logical reason”
3
a capital defendant should have less opportunity to change a
judge than a non-capital defendant.
convincing.
These arguments are not
A peremptory change of judge in the later stages of
a capital case could be more disruptive administratively because
the
length
and
complexity
of
difficult to substitute judges.
capital
cases
make
it
more
Moreover, the prior version of
Rule 10.2 allowed a capital defendant two peremptory changes:
one before the state filed its notice of intent to seek the
death penalty and one after.
See Campbell v. Barton, 222 Ariz.
414, 416 ¶ 11, 215 P.3d 388, 390 (App. 2009).
And although
Manuel cites in passing certain constitutional provisions, he
has
waived
any
constitutional
argument
against
the
rule’s
different treatment of capital defendants by not developing it.
See State v. Nirschel, 155 Ariz. 206, 208, 745 P.2d 953, 955
(1987).
¶9
The trial court did not err in denying Manuel’s notice
of change of judge.
The notice was not filed within ten days
after the State filed its notice of intent to seek the death
penalty and thus was untimely under Rule 10.2(a).
B. Denial of Motion to Suppress Evidence
¶10
Manuel argues that the trial court erred in denying
his motion to suppress a pistol found in his hotel room when he
was arrested.
room,
Manuel
Because the police had no warrant to search the
contends
that
the
4
gun
was
inadmissible
as
the
“fruit” of an unconstitutional search.
See Nix v. Williams, 467
U.S. 431, 441-42 (1984).
¶11
We review the denial of a motion to suppress for an
abuse of discretion, considering only the evidence presented at
the suppression hearing, State v. Spears, 184 Ariz. 277, 284,
908 P.2d 1062, 1069 (1996), and viewing the facts in the light
most favorable to sustaining the ruling,
State v. Dean, 206
Ariz. 158, 161 ¶ 9, 76 P.3d 429, 432 (2003).
¶12
Based on an informant’s tip, police in North Carolina
learned that Manuel was a suspect in a Phoenix murder and was
staying with his girlfriend, D.J., at a Charlotte hotel.
The
police also learned that Manuel had two outstanding warrants for
auto theft.
A SWAT team was dispatched to the hotel, where
officers forced Manuel to the floor and handcuffed him when he
emerged
from
arrested,
his
D.J.
screaming,
second
came
“don’t
to
hurt
floor
the
room.
room’s
him.”
She
As
Manuel
doorway,
was
was
hysterical
handcuffed
and
being
and
taken
downstairs by Detective Hetrick and Officer White.
¶13
room.
Other officers promptly conducted a sweep of the hotel
While
another
officer
covered
with
a
rifle,
Officer
Balamucki lifted the mattress and box spring up from the foot of
the bed to see if anyone was under it.
When Balamucki did so,
he heard a “clunking” sound and could see a gun through the mesh
fabric covering the bottom of the box spring.
5
The officers in
the room radioed Hetrick and told him they could see a gun in
the box spring.
Hetrick then asked D.J. if the police could
search the room for “guns and drugs,” and she said “go ahead.”
Hetrick went to the room and retrieved the pistol.
¶14
In denying Manuel’s motion to suppress the pistol, the
trial court found that the search of the room was lawful based
both on D.J.’s consent and as incident to Manuel’s arrest.
trial,
the
pistol
was
admitted
into
evidence
and
an
At
expert
witness for the State testified that ballistics tests showed the
pistol had fired bullet casings found at the murder scene.
¶15
Manuel argues that the trial court erred in finding
that D.J. legally consented to the search and that the search
was incident to Manuel’s arrest.
Without reaching the consent
issues, we conclude that the warrantless sweep of the room was
lawful under Maryland v. Buie, 494 U.S. 325 (1990).
¶16
Citing Arizona v. Gant, 129 S. Ct. 1710 (2009), Manuel
contends that a search incident to a lawful arrest is limited to
the area under the arrestee’s immediate control.
Under Gant,
police are authorized to search a vehicle incident to the arrest
of
a
recent
distance
of
occupant
the
“when
vehicle
or
an
it
arrestee
is
is
reasonable
within
to
believe
vehicle contains evidence of the offense of arrest.”
at
1721.
holding
The
does
Court
not
in
Gant,
however,
affect
other
recognized
6
reaching
recognized
the
129 S. Ct.
that
exceptions
to
its
the
warrant requirement, including the exception recognized in Buie.
Id.; see also Meister v. State, 933 N.E.2d 875, 878 (Ind. 2010)
(concluding
that
Gant
does
not
disturb
other
exceptions
to
warrant requirement for vehicle searches).
¶17
Buie recognized that police, incident to an arrest in
a home, may conduct a warrantless, protective sweep: “a quick
and limited search of the premises . . . conducted to protect
the safety of police officers or others” and “narrowly confined
to a cursory visual inspection of those places in which a person
might be hiding.”
494 U.S. at 327.
The Supreme Court noted:
[I]ncident to the arrest the officers could, as a
precautionary matter and without probable cause or
reasonable suspicion, look in closets and other spaces
immediately adjoining the place of arrest from which
an attack could be immediately launched. Beyond that,
however, we hold that there must be articulable facts
which, taken together with the rational inferences
from those facts, would warrant a reasonably prudent
officer in believing that the area to be swept harbors
an individual posing a danger to those on the arrest
scene.
Id. at 334.
¶18
As we recently explained, Buie authorizes two types of
protective sweeps: one involving the area “immediately adjacent”
to
the
place
of
arrest,
which
does
not
require
reasonable
suspicion, and a second involving other areas, which requires a
reasonable belief, supported by specific and articulable facts,
that the area harbors someone who could pose a safety threat.
7
State v. Fisher, 226 Ariz. 563, 565-66 ¶¶ 8-9, 12-13, 250 P.3d
1192, 1194-95 (2011).
¶19
the
The search of Manuel’s hotel room was justified under
first
Buie
outstanding
exception.
felony
Phoenix murder.
warrants
The
police
and
was
knew
that
possibly
Manuel
involved
had
in
a
While they were completing the arrest in the
hallway outside the room, D.J. came to the doorway, screaming
hysterically.
Officers placed her in handcuffs and removed her
from the scene while other officers swept the room to determine
if anyone else was inside who might pose a threat.
The hotel
room was immediately adjacent to the place where Manuel was
arrested and D.J. was detained.
Cf. United States v. Thomas,
429 F.3d 282, 287 (D.C. Cir. 2005) (upholding sweep of bedroom
adjacent
to
living
room
where
arrest
occurred).
Thus,
the
police could sweep the room even without reasonable suspicion
that someone was inside.
Cf. Fisher, 226 Ariz. at 567 ¶ 15, 250
P.3d at 1196 (invalidating sweep under second Buie exception
because not supported by reasonable suspicion that others were
in an apartment).
¶20
Because
the
police
were
authorized
under
Buie
to
conduct a protective sweep of the room, the question becomes
whether
they
such a sweep.
lawfully
discovered
the
pistol
while
conducting
Buie permitted the officers to look under the
hotel bed because a person could have been hiding there.
8
See
United
States
v.
Green,
599
F.3d
360,
376
(4th
Cir.
2010)
(noting that “searching under beds is within the ambit of a
protective
sweep”).
The
police
testified
that,
because
of
safety concerns, their usual practice is to look under a bed by
lifting its mattress and box spring, and we conclude that their
doing so here was within the permissible scope of a Buie sweep.
¶21
Viewed in the light most favorable to upholding the
trial court’s ruling, the record indicates that when Officer
Balamucki lifted the bed, he saw the gun, which had slid down
the box spring, through the mesh fabric on the bottom.
Because
he was entitled to lift up the bed and discovered the gun in
plain view, the trial court did not err in denying the motion to
suppress.
C. Prosecutorial Misconduct
¶22
Manuel
argues
that
the
prosecutor
engaged
in
misconduct at trial by making argumentative comments and asking
witnesses
improper
questions.
Prosecutorial
misconduct
constitutes reversible error only if (1) misconduct exists, and
(2) there is a reasonable likelihood that the misconduct could
have affected the jury’s verdict, thereby denying the defendant
a fair trial.
See State v. Gallardo, 225 Ariz. 560, 568 ¶ 34,
242 P.3d 159, 167 (2010), cert. denied, 131 S. Ct. 1796 (2011).
The defendant must show that the misconduct “so infected the
trial with unfairness as to make the resulting conviction a
9
denial of due process.”
46,
160
P.3d
203,
State v. Morris, 215 Ariz. 324, 335 ¶
214
(2007).
Alleged
instances
of
prosecutorial misconduct are evaluated both separately and for
their cumulative effect.
¶23
Id. ¶ 47.
Manuel contends that the prosecutor made argumentative
comments, particularly during the State’s opening statements in
the
sentencing
phase,
and
ignored
sustained
objections.
Although the prosecutor did make some argumentative comments,
the record does not reflect that the prosecutor disregarded the
court’s
rulings
sustaining
objections.
Moreover,
the
trial
judge repeatedly instructed the jury that it should consider
only
evidence
presented
by
testimony
or
exhibits,
that
the
lawyers’ statements were not evidence, and that it should ignore
statements to which objections were sustained.
¶24
Such cautionary instructions by the court generally
cure any possible prejudice from argumentative comments during
opening statements.
See State v. Bowie, 119 Ariz. 336, 340, 580
P.2d 1190, 1194 (1978) (“Any possible prejudice from the opening
statement was overcome by the court’s cautionary instructions
that
evidence
did
not
come
from
the
attorneys
and
that
the
verdict must be determined only by reference to the evidence.”).
Jurors are presumed to follow the court’s instructions.
State
v. Newell, 212 Ariz. 389, 403 ¶ 68, 132 P.3d 833, 847 (2006).
In light of this presumption and the trial judge’s cautionary
10
instructions, Manuel has failed to establish prejudice.
Gallardo,
225
Ariz.
at
568-70
¶¶
36-45,
242
P.2d
at
Cf.
167-69
(finding improper statements not prejudicial).
¶25
Manuel
cross-examined
also
argues
several
that
witnesses
including D.J. and Manuel.
the
prosecutor
during
the
improperly
penalty
phase,
Although the prosecutor aggressively
cross-examined Manuel and D.J., Manuel does not identify how any
particular
presume
incident
that
the
might
jury
have
followed
caused
the
prejudice.
court’s
We
again
instructions
and
disregarded questions to which objections were sustained.
¶26
Citing
In
re
Zawada,
208
Ariz.
232,
92
P.3d
862
(2004), and State v. Hughes, 193 Ariz. 72, 969 P.2d 1184 (1998),
Manuel
contends
that
the
prosecutor
committed
misconduct
by
disrespecting Dr. Cunningham, Manuel’s mitigation expert, and
suggesting that Cunningham reached his conclusions only because
he was being paid.
¶27
In Zawada and Hughes, we held that a prosecutor had
committed misconduct by, among other things, suggesting, without
evidence, that defense counsel had paid money to a mental health
expert to fabricate a diagnosis of insanity for the defendant.
See Zawada, 208 Ariz. at 237 ¶ 16, 92 P.3d at 867; Hughes, 193
Ariz. at 86 ¶ 61, 969 P.2d at 1198.
These cases recognize
ethical limits on a prosecutor’s questioning of defense experts.
“[I]t is improper [for a prosecutor] to imply unethical conduct
11
on the part of an expert witness in the absence of evidentiary
support.”
State v. Velazquez, 216 Ariz. 300, 311 ¶ 48, 166 P.3d
91, 102 (2007) (quoting Hughes, 193 Ariz. at 86 ¶ 59, 969 P.2d
at 1198).
We have also cautioned that “a prosecutor cannot
attack the expert with non-evidence, using irrelevant, insulting
cross-examination and baseless argument designed to mislead the
jury.”
State v. Roque, 213 Ariz. 193, 229 ¶ 161, 141 P.3d 368,
404 (2006) (quoting Zawada, 208 Ariz. at 237 ¶ 14, 92 P.3d at
867).
¶28
Cunningham,
a
clinical
psychologist,
testified
on
direct that Manuel had experienced many “adverse developmental
factors” that impair one’s ability to make good decisions and
that inmates with Manuel’s characteristics have a relatively low
risk of violent behavior in prison.
In response to defense
counsel’s questions, Cunningham said that he had worked about
100 hours on this case for an hourly rate of $300.
He also
acknowledged that the prosecution had never called him as an
expert in a capital case, noting that he would not expect the
prosecution to do so given the subject matter of his testimony.
¶29
The
prosecutor
vigorously
cross-examined
Cunningham.
Over defense counsel’s objections, the prosecutor elicited that
Cunningham and his wife earned about $200-300,000 annually from
work on capital cases, that his total income was about $400,000,
and that $650,000 was “in the ball park” for his gross income
12
from
work
on
prosecutor’s
both
capital
questions
and
about
non-capital
Cunningham’s
expert work were not improper.
cases.
The
compensation
from
Cf. State v. Mauro, 159 Ariz.
186, 199, 766 P.2d 59, 72 (1988) (acknowledging that an attorney
may
cross-examine
an
expert
witness
regarding
payment
for
testimony).
¶30
During
closing
arguments,
the
prosecutor
criticized
Cunningham’s testimony on various grounds, including by arguing
that the expert had been hired 142 times by the defense and
never by the prosecution because he was biased.
asserted
that
Cunningham
had
received
The prosecutor
over
$600,000
“in
compensation last year doing this same thing in case after case,
state to state . . . .
testimony
becomes
That is bias.
predictable.”
Later
For $600,000 one's
the
prosecutor
argued
that Cunningham’s work reflected “total extreme bias in favor of
the defendant,” and “a bias of $600,000.”
¶31
Defense
comments
in
closing
fundamental error.
P.2d at 167.
respects.
counsel
did
not
argument,
so
object
we
to
review
the
prosecutor’s
them
only
for
See Gallardo, 225 Ariz. at 568 ¶ 35, 242
The prosecutor’s remarks were improper in certain
He misstated the testimony about Cunningham’s annual
income and his assertion that Cunningham had “done the same
thing in case after case, state to state” was not supported by
the record.
The prosecutor’s comments about Cunningham’s bias
13
also were problematic.
Counsel may attempt to impeach expert
witnesses by showing that they earn their income by testifying
consistently for one side.
But absent evidentiary support, it
is improper for a prosecutor to intimate that a defense expert
has reached conclusions merely for pecuniary gain.
The trial
court here might have properly sustained an objection to the
prosecutor’s
comments
regarding
Cunningham’s
compensation
and
bias, but no objection was made.
¶32
Manuel
caused
has
prejudice
not
shown
sufficient
that
to
the
prosecutor’s
constitute
fundamental
remarks
error.
The prosecutor here did not suggest, as did the prosecutor in
Zawada,
that
the
expert
had
colluded
with
the
defense
to
fabricate a diagnosis.
Moreover, the jury was instructed that
the
were
lawyer’s
comments
not
evidence.
See
State
v.
Velazquez, 216 Ariz. 300, 312 ¶¶ 50, 53, 166 P.3d 91, 103 (2007)
(noting jury instruction in concluding that improper comments in
closing did not constitute fundamental error).
¶33
The
Manuel
also
cumulatively.
instances
do
not
of
alleged
warrant
misconduct
reversal
identified
when
by
considered
The record does not reflect pervasive misconduct
that deprived him of a fair trial.
Cf. Gallardo, 225 Ariz. at
570 ¶ 47, 242 P.3d at 169 (reaching similar conclusion regarding
alleged
misconduct
in
penalty
closing argument).
14
phase
opening
statement
and
D. Jury Question
¶34
Manuel
answered
a
argues
juror’s
deliberations,
a
that
question
juror
the
in
asked
trial
the
in
judge
penalty
writing
incorrectly
phase.
if
the
During
jury
recommend the type of life sentence it might impose.
could
The trial
judge informed counsel of the question, and both sides initially
agreed
that
the
consideration,
maintained
that
recommendation.
judge
should
Manuel’s
the
answer
counsel
jury
should
“no.”
changed
be
After
his
able
to
further
position
make
such
and
a
The trial judge responded “no” to the juror’s
question.
¶35
We
review
a
trial
court’s
rulings
with
answering jury questions for an abuse of discretion.
respect
to
State v.
Kuhs, 223 Ariz. 376, 384 ¶ 42, 224 P.3d 192, 200, cert. denied,
131 S. Ct. 228 (2010).
¶36
“If the trier of fact determines that a sentence of
death is not appropriate . . . the court shall determine whether
to impose a sentence of life or natural life.”
752(A) (2011).
A.R.S. § 13-
Because the court is assigned the responsibility
of determining which type of life sentence a defendant should
receive, a defendant is not entitled to a jury’s recommendation
on this issue.
Cf. Ariz. R. Crim. P. 23.2(f) (providing that
“at the conclusion of the penalty hearing, the jury shall render
a verdict determining whether to impose a sentence of death”).
15
The
trial
court
therefore
did
not
abuse
its
discretion
in
responding “no” to the juror’s question.
E. Juror Misconduct
¶37
Manuel argues that a juror was intoxicated during at
least one day of testimony and that the trial court abused its
discretion in denying Manuel’s motion for a new trial based on
this misconduct.
¶38
During the penalty phase, the jury recessed for lunch
on September 3, the last trial day before Labor Day weekend.
When the trial resumed after lunch, a juror gave the bailiff a
note saying he thought Juror 9 was drunk.
After about twenty
minutes of testimony, the judge excused the jury and questioned
Juror
lunch.
9
and
an
alternate
juror
about
their
activities
over
Juror 9 said that he had drunk a glass of bourbon; the
alternate juror admitted drinking a shot of whiskey.
The judge
admonished the entire jury not to consume alcoholic beverages
during
juror
hours
and
recessed
the
trial
for
the
weekend.
Denying Manuel’s motion for a new trial, the judge ruled that,
when
the
trial
resumed,
defense
counsel
could
testimony given by a defense witness after lunch.
trial
resumed
after
Labor
Day,
the
witness
repeat
the
When the
continued
his
testimony and defense counsel repeated some matters covered the
preceding week.
The alternate juror who acknowledged drinking
at lunch did not participate in the jury’s deliberations.
16
¶39
After
the
jury
returned
its
penalty-phase
Manuel renewed his motion for a new trial.
verdict,
At an evidentiary
hearing, Juror 9 testified that it was not uncommon for him to
have a beer over lunch, but he did not believe his consumption
of
alcohol
interfered
with
his
ability
to
be
a
fair
and
impartial juror, and he had not consumed any alcohol during
juror hours after the judge’s admonishment.
The trial court
denied the renewed motion for a new trial.
¶40
We review a trial court’s decision to grant or deny a
new trial based on alleged juror misconduct for an abuse of
discretion.
State v. Jones, 185 Ariz. 471, 484, 917 P.2d 200,
213 (1996).
“[J]uror misconduct warrants a new trial [only] if
the defense shows actual prejudice or if prejudice may be fairly
presumed from the facts.”
State v. Cruz, 218 Ariz. 149, 163 ¶
68, 181 P.3d 196, 210 (2008) (quoting State v. Miller, 178 Ariz.
555, 558, 875 P.2d 788, 791 (1994)) (alterations in original).
¶41
Despite
indicate
that
Manuel’s
Juror
9
was
assertions,
the
intoxicated
possibly after lunch on September 3.
record
during
does
trial
not
except
On that occasion, the
judge appropriately responded by recessing the trial for the
weekend,
admonishing
the
jury
against
consuming
alcohol,
and
permitting Manuel’s counsel to repeat any testimony that was
given in the twenty minutes after lunch.
Under Jones, Manuel
must show that “the misconduct was prejudicial or that prejudice
17
can be fairly presumed” to secure reversal of the trial court’s
denial of a new trial. 185 Ariz. at 484, 917 P.2d at 213.
Although we do not condone Juror 9’s drinking, we decline to
adopt a per se rule mandating an immediate mistrial whenever a
juror has consumed alcohol during a capital trial.
States
v.
(holding,
Taliaferro,
in
558
non-capital
F.2d
case,
724,
the
726
juror’s
Cf. United
(4th
Cir.
consuming
1977)
alcohol
does not require new trial absent prejudice); State v. Dann, 220
Ariz.
351,
capital
363
case,
¶
50,
that
207
P.3d
604,
declaration
of
616
(2009)
mistrial
is
(noting,
most
in
dramatic
remedy for trial error and should only be granted if justice
will be thwarted absent a new trial).
The judge did not abuse
her discretion in denying Manuel’s motion for new trial.
F. Review of the Death Sentence
¶42
Because the murder occurred after August 1, 2002, this
Court must review Manuel’s death sentence to “determine whether
the trier of fact abused its discretion in finding aggravating
circumstances and imposing a sentence of death.”
756(A) (2011).
A.R.S. § 13-
A finding of an aggravating circumstance is not
an abuse of discretion if there is “any reasonable evidence in
the record to sustain it.”
P.3d
at
220.
appropriate
reasonable
The
sentence
jury
Morris, 215 Ariz. at 341 ¶ 77, 160
jury’s
will
could
determination
not
have
be
reversed
concluded
18
that
death
“so
that
is
the
long
as
any
the
mitigation
established by the defendant was not sufficiently substantial to
call for leniency.”
Id. ¶ 81.
1.
The
¶38
Aggravating Circumstances
jury
found
that
the
murder
was
committed
as
consideration for the receipt, or in expectation of the receipt,
of anything of pecuniary value, see A.R.S. § 13-751(F)(5).
The
trial court properly instructed the jury that the State had to
prove that pecuniary gain was a motive, cause, or impetus for
the murder and not merely the result of the murder.
See State
v. Sansing, 200 Ariz. 347, 353 ¶ 12, 26 P.3d 1118, 1124 (2001),
vacated and remanded on other grounds, 536 U.S. 954 (2002).
¶39
Sufficient
finding.
evidence
exists
to
support
the
jury’s
Before the murder, Manuel had asked D.J. to go into
the pawn shop and attempt to pawn a chain he had given her.
D.J. testified that Manuel was “broke” and might have needed
money for gas.
The jury also could infer that he had sent D.J.
inside to determine who was present.
Manuel entered the shop
firing his weapon, suggesting that he committed the murder to
facilitate the robbery.
pawn shop.
Manuel then took two pistols from the
The jury could reasonably conclude that pecuniary
gain was a motive, cause, or impetus for the murder.
2.
¶40
each
Mitigating Circumstances
After the jury finds one or more aggravating factors,
juror
must
determine
whether
19
death
is
the
appropriate
penalty.
See A.R.S. § 13-751(C); see also Gallardo, 225 Ariz.
at 570 ¶ 51, 242 P.3d at 169.
that
death
conclude
is
that
appropriate
the
We will uphold a jury’s decision
if
mitigation
any
presented
substantial to call for leniency.”
¶41
“reasonable
was
not
juror
could
sufficiently
Id. ¶ 52.
Manuel presented evidence about his troubled childhood
and family history, his behavior during past incarcerations, and
how his execution would impact his extended family.
Although
this evidence was extensive, a reasonable juror could conclude
that the mitigation was not sufficiently substantial to call for
leniency.
Manuel was thirty-two years old at the time of the
crime, he had been incarcerated several times previously, and he
did
not
establish
a
strong
causal
relationship
mitigating circumstances and the murder.
between
the
The jury did not abuse
its discretion by determining that Manuel should be sentenced to
death.
Cf. Cruz, 218 Ariz. at 170-71 ¶ 138, 181 P.3d at 217-18
(concluding death sentence was not abuse of discretion when jury
found one aggravating factor and defendant offered little or no
evidence connecting mitigating evidence with the crime).
G. Issues Preserved for Federal Review
¶42
To
additional
rejected
in
avoid
preclusion,
constitutional
previous
Manuel
claims
decisions
20
by
that
this
raises
he
states
Court
or
twenty-two
have
the
been
United
States Supreme Court.
The attached appendix lists these claims
and the decisions Manuel identifies as rejecting them.
CONCLUSION
¶43
We affirm Manuel’s convictions and sentences.
_____________________________________
W. Scott Bales, Justice
CONCURRING:
_____________________________________
Rebecca White Berch, Chief Justice
_____________________________________
Andrew D. Hurwitz, Vice Chief Justice
_____________________________________
A. John Pelander, Justice
_____________________________________
Robert M. Brutinel, Justice
21
APPENDIX
Manuel raises twenty-two issues to preserve them for
federal review. This Appendix lists his claims and the decisions
he identifies as rejecting them.
1.
The death penalty is cruel and unusual under any
circumstances and violates the Eighth and Fourteenth Amendments
to the United States Constitution and Article 2, § 15 of the
Arizona Constitution.
State v. Harrod, 200 Ariz. 309, 320, 26
P.3d 492, 503 (2001).
2.
The death penalty is imposed arbitrarily and irrationally
in Arizona in violation of the Eighth and Fourteenth Amendments
to the United States Constitution and Article 2, § 15 of the
Arizona Constitution, as well as Manuel’s right to due process
under the Fifth and Fourteenth Amendments to the United States
Constitution and Article 2, § 4 of the Arizona Constitution.
State v. Beaty, 158 Ariz. 232, 762 P.2d 519 (1988).
3.
Application
would constitute
the Eighth and
Constitution and
Constitution.
of the death penalty on the facts of this case
cruel and unusual punishment in violation of
Fourteenth Amendments to the United States
Article 2, §§ 1, 4, and 15 of the Arizona
4.
The prosecutor’s discretion to seek the death penalty has
no standards and therefore violates the Eighth and Fourteenth
Amendments to the United States Constitution and Article 2, §§
1, 4, and 15 of the Arizona Constitution. State v. Sansing, 200
Ariz. 347, 361, 26 P.3d 1118, 1132 (2001).
5.
Aggravating factors under A.R.S. § 13-703(F) are elements
of capital murder and must be alleged in an indictment and
screened for probable cause. Arizona’s failure to require this
violates a defendant’s right to due process and a fair trial
under the Sixth and Fourteenth Amendments to the United States
Constitution and Art. 2, §§ 4 and 24 of the Arizona
Constitution.
McKaney v. Foreman, 209 Ariz. 268, 100 P.3d 18
(2004).
Recently, although not mandating aggravators to be
screened for probable cause on constitutional grounds, this
Court found that defendants had a right under the rules of
criminal procedure to have the aggravators screened for probable
cause.
See Chronis v. Steinle, 220 Ariz. 559, 208 P.3d 210
(2009).
22
6.
The absence of proportionality review of death sentences by
Arizona courts denies capital defendants due process of law and
equal protection and amounts to cruel and unusual punishment in
violation of the Fifth, Eighth, and Fourteenth Amendments to the
United States Constitution and Article 2, § 15 of the Arizona
Constitution.
Harrod, 200 Ariz. at 320, 26 P.3d at 503.
Proportionality review serves to identify which cases are “above
the norm” of first-degree murder thus narrowing the class of
defendants who are eligible for the death penalty.
7.
Arizona’s capital sentencing scheme is unconstitutional
because it does not require that the State prove that the death
penalty is appropriate. Failure to require this proof violates
the Fifth, Eighth, and Fourteenth Amendments to the United
States Constitution and Article 2, § 15 of the Arizona
Constitution. State v. Ring, 200 Ariz. 267, 284, 25 P.3d 1139,
1156 (2001) (Ring I), rev’d on other grounds by Ring II.
8.
A.R.S. § 13-703 provides no objective standards to guide
the sentencer in weighing the aggravating and mitigating
circumstances and therefore violates the Eighth and Fourteenth
Amendments of the United States Constitution and Article 2, § 15
of the Arizona Constitution.
State v. Pandeli, 200 Ariz. 365,
382, 26 P.3d 1136, 1153 (2001).
9.
Arizona’s death penalty scheme is unconstitutional because
it does not require the sentencer to find beyond a reasonable
doubt
that
the
aggravating
circumstances
outweigh
the
accumulated mitigating circumstances, in violation of the Fifth,
Eighth,
and
Fourteenth
Amendments
to
the
United
States
Constitution and Article 2, §§ 4 and 15 of the Arizona
Constitution. State v. Poyson, 198 Ariz. 70, 83, 7 P.3d 79, 92
(2000).
10. A.R.S.
§
13-703
does
not
sufficiently
channel
the
sentencer’s discretion. Aggravating circumstances should narrow
the class of persons eligible for the death penalty and
reasonably justify the imposition of a harsher penalty. The
broad scope of Arizona’s aggravating factors encompasses nearly
anyone involved in a murder, in violation of the Eighth and
Fourteenth Amendments to the United States Constitution and
Article 2, § 15 of the Arizona Constitution. Pandeli, 200 Ariz.
at 382, 26 P.3d at 1153.
11. Execution by lethal injection is cruel and unusual
punishment in violation of the Eighth and Fourteenth Amendments
to the United States Constitution and Article 2, § 15 of the
23
Arizona Constitution.
P.2d 602, 610 (1994).
State v. Hinchey, 181 Ariz. 307, 315, 890
12. Arizona's current protocols and procedures for execution by
lethal injection constitute cruel and unusual punishment in
violation of the Eighth and Fourteenth Amendments.
State v.
Andriano, 215 Ariz. 497, 510, 161 P.3d 540, 553 (2007).
13. Arizona’s
death
penalty
unconstitutionally
requires
imposition of the death penalty whenever at least one
aggravating circumstance and no mitigating circumstances exist,
in violation of the Eighth and Fourteenth Amendments to the
United States Constitution and Article 2, § 15 of the Arizona
Constitution. State v. Miles, 186 Ariz. 10, 19, 918 P.2d 1028,
1037 (1996).
14. A.R.S. § 13-703, (now 13-751 et. seq.) unconstitutionally
fails to require the cumulative consideration of multiple
mitigating factors or require that the jury make specific
findings as to each mitigating factor.
State v. Gulbrandson,
184 Ariz. 46, 69, 906 P.2d 579, 602 (1995).
15. Arizona's statutory scheme for considering mitigating
evidence
is
unconstitutional
because
it
limits
full
consideration of that evidence.
State v. Mata, 125 Ariz. 233,
242, 609 P.2d 48, 57 (1980).
16. Death sentences in Arizona have been applied arbitrarily
and irrationally and in a discriminatory manner against
impoverished males whose victims have been Caucasian. State v.
West, 176 Ariz. 432, 455, 862 P.2d 192, 215 (1993).
17. Subjecting Appellant to a second trial on the issue of
aggravation and punishment before a new jury violates the double
jeopardy clause of the Fifth Amendment. State v Ring, 204 Ariz.
534, 550, 65 P.3d 915, 931 (2003) (Ring III).
18. The reasonable doubt jury instruction at the aggravation
trial lowered the state's burden of proof and deprived Appellant
of his right to a jury trial and due process under the Sixth and
Fourteenth Amendments. State v. Dann, 205 Ariz. 557, 575-76, 74
P.3d 231, 249-50 (2003) (Dann I).
19. Arizona's
death
statute
creates
an
unconstitutional
presumption of death and places an unconstitutional burden on
Appellant to prove mitigation is “sufficiently substantial to
24
call for leniency.”
State v. Glassel, 211 Ariz. 33, 52, 116
P.3d 1193, 1212 (2005).
20. The introduction of victim impact evidence is improper
because a defendant does not receive pretrial notice or an
opportunity to confront and cross-examine the victim witness.
Lynn v. Reinstein, 205 Ariz. 186, 191, 68 P.3d 412, 417 (2003).
21. The
trial
court
improperly
omitted
penalty
phase
instructions that the jury could consider mercy or sympathy in
evaluating the mitigation evidence and determining whether to
sentence the defendant to death.
State v. Carreon, 210 Ariz.
54, 70-71, 107 P.3d 900, 916-917 (2005).
22. The jury instruction requiring the jury to unanimously
determine that the mitigating circumstances were “sufficiently
substantial to call for leniency” violated the Eighth Amendment.
State v. Ellison, 213 Ariz. 116, 139, 140 P.3d 899, 922 (2006).
25
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