Justia.com Opinion Summary: Appellant Clarence Dixon was convicted of first degree murder and sentenced to death. At trial, he represented himself. A jury found him guilty on all counts. When Appellant elected before trial to represent himself, the judge warned him that he would have sole responsibility for his defense, including examining and cross-examining witnesses. Appellant requested that an advisory counsel handle the examination of witnesses. The trial court rejected this proposal. On appeal, Appellant claimed multiple errors by the trial court entitled him to a new trial, including the trial court’s denial of his proposed “hybrid representation.” The Supreme Court noted that “there is no constitutional right to hybrid representation.” The Court found that the trial court did not abuse its discretion in denying Appellant’s motion. Finding no other errors from trial, the Court affirmed the lower court’s decision and Appellant’s death sentence.
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SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA,
)
)
Appellee, )
)
v.
)
)
CLARENCE WAYNE DIXON,
)
)
Appellant. )
)
__________________________________)
Arizona Supreme Court
No. CR-08-0025-AP
Maricopa County
Superior Court
No. CR2002-019595
O P I N I O N
Appeal from the Superior Court in Maricopa County
The Honorable Andrew G. Klein, Judge
AFFIRMED
________________________________________________________________
THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL
By
Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Jeffrey A. Zick, Assistant Attorney General
Attorneys for State of Arizona
Phoenix
BRUCE PETERSON, OFFICE OF THE LEGAL ADVOCATE
Phoenix
By
Consuelo M. Ohanesian, Deputy Legal Advocate
Attorneys for Clarence Wayne Dixon
________________________________________________________________
H U R W I T Z, Vice Chief Justice
¶1
Clarence
Wayne
Dixon
murder and sentenced to death.
was
convicted
of
first
degree
We have jurisdiction over his
automatic appeal under Article VI, Section 5(3) of the Arizona
Constitution and A.R.S. §§ 13-4031 and 13-4033(A)(1) (2011).1
1
This opinion cites the current version of statutes that
have not materially changed since the events at issue.
I.
¶2
On
FACTUAL AND PROCEDURAL BACKGROUND2
January
6,
1978,
Deana
Bowdoin,
a
21-year-old
Arizona State University senior, had dinner with her parents and
then went to a nearby bar to meet a female friend.
The two
arrived at the bar at 9:00 p.m. and stayed until approximately
12:30 a.m., when Deana told the friend she was going home and
drove away alone.
¶3
Deana and her boyfriend lived in a Tempe apartment.
He returned to their apartment at about 2:00 a.m. after spending
the evening with his brother and found Deana dead on the bed.
She had been strangled with a belt and stabbed several times.
¶4
Investigators found semen in Deana’s vagina and on her
underwear, but could not match the resulting DNA profile to any
suspect.
In
2001,
a
police
detective
checked
the
profile
against a national database and found that the profile matched
that of Clarence Dixon, an Arizona prison inmate.
Dixon had
lived across the street from Deana at the time of the murder.
None
of
Deana’s
friends
or
family
knew
of
previous
contact
between her and Dixon.
¶5
Dixon was charged with first degree murder and chose
to represent himself.
The jury found that he had committed both
premeditated and felony murder.
In the aggravation phase, the
2
We view the facts “in the light most favorable to upholding
the verdicts.”
State v. Chappell, 225 Ariz. 229, 233 ¶ 2 n.1,
236 P.3d 1176, 1180 n.1 (2010).
2
jury found that Dixon had previously been convicted of a crime
punishable by life imprisonment, A.R.S. § 13-751(F)(1), and that
the
murder
751(F)(6).
was
especially
cruel
and
heinous,
A.R.S.
§ 13-
In the penalty phase, the jury determined that Dixon
should be sentenced to death.
II.
ISSUES ON APPEAL
A. Prosecutorial Misconduct
¶6
A
woman
testified
at
trial
that
Dixon
sexually
assaulted her in 1985 while she was a 21-year-old student at
Northern Arizona University.
The court admitted this testimony
under Arizona Rule of Evidence 404(c) after conducting a pretrial
evidentiary
hearing.
Dixon
does
not
deny
that
he
committed the 1985 rape, but claims that because the medical
examiner could not conclusively opine that Deana had also been
raped,
the
prosecutor
committed
misconduct
by
offering
the
conviction
for
testimony of the 1985 victim.
1. Standard of review
¶7
A
defendant
seeking
reversal
of
a
prosecutorial misconduct must establish that “(1) misconduct is
indeed present; and (2) a reasonable likelihood exists that the
misconduct
could
have
affected
the
jury’s
denying [the] defendant a fair trial.”
verdict,
thereby
State v. Velazquez, 216
Ariz. 300, 311 ¶ 45, 166 P.3d 91, 102 (2007) (alteration in
original)
(internal
quotation
marks
3
omitted).
Because
Dixon
made no claim of prosecutorial misconduct below, we review for
fundamental error.
See State v. Henderson, 210 Ariz. 561, 567
¶ 19, 115 P.3d 601, 607 (2005).
2. The prosecutor did not commit misconduct
¶8
The
trial
judge
ruled
the
1985
victim’s
testimony
admissible after conducting a pre-trial evidentiary hearing.
At
trial, the prosecutor offered only the evidence that the judge
expressly permitted in his pre-trial order.
This is plainly not
misconduct.
¶9
Dixon nonetheless argues that the prosecutor committed
misconduct because he knew that the State could not prove that
Deana had been raped, and the prior acts therefore could not
demonstrate “an aberrant sexual propensity to commit the crime
charged,” as Rule 404(c)(1)(B) requires.
convicted
Dixon
predicate felony.
of
felony
murder,
and
The jury, however,
rape
was
the
charged
On appeal, Dixon has not directly challenged
the sufficiency of the evidence to support that verdict.
¶10
argument.
In
any
event,
the
record
does
not
support
Dixon’s
Although the testifying medical examiner could not
independently verify that Deana had been raped, he refused to
rule out a sexual assault.
Rather, he affirmed that “rape can
occur with no injuries.”
¶11
There was ample evidence from which the jury could
conclude that Deana had been raped.
4
She had left a bar alone at
12:30 a.m. and was found dead in her apartment, with a belt
tightly cinched around her neck, only 90 minutes later.
Dixon’s
semen was found on her underpants (which she had first put on
that evening) and in her vagina.
acquaintance with Dixon.
Deana had no known previous
She had indentations on her right
wrist, indicating she had been restrained.
Her clothing was
disheveled, and she had urinated on the bed.
Dixon’s claim that
the prosecutor “misled the trial court” as to whether Deana had
been raped finds no support in the record.
B. Admissibility of the Rule 404(c) Evidence
¶12
Although Dixon does not directly argue that the other
acts evidence was improperly admitted, that argument underpins
his
misconduct
allegations.
Assuming
that
the
argument
is
before us, we find it unavailing.
¶13
To admit evidence of another sexual offense, the trial
court must find:
(A)
The evidence is sufficient to permit the trier of
fact to find that the defendant committed the
other act.
(B)
The commission of
reasonable basis to
a character trait
sexual propensity to
(C)
The evidentiary value of proof of the other act
is not substantially outweighed by danger of
unfair prejudice, confusion of issues, or other
factors mentioned under Rule 403. . . .
the other act provides a
infer that the defendant had
giving rise to an aberrant
commit the crime charged.
5
Ariz. R. Evid. 404(c)(1).
As required by State v. Aguilar, 209
Ariz. 40, 49 ¶ 30, 97 P.3d 865, 874 (2004), the trial court made
specific
findings
requirements
on
before
each
of
admitting
the
the
three
1985
Rule
404(c)(1)
victim’s
testimony.
Those findings are well supported by the record.
¶14
Dixon was convicted of the 1985 sexual assault.
conceded
below,
this
conviction
satisfies
the
As he
requirement
of
Rule 404(c)(1)(A) that the evidence be sufficient to allow the
trier of fact to conclude that the defendant committed the other
act.
¶15
The
evidence
also
provided
the
superior
court
a
reasonable basis for concluding pursuant to Rule 404(c)(1)(B)
that Dixon “has a character trait giving rise to an aberrant
sexual propensity to commit the crime charged (sexual assault
against
non-consenting
adult
females).”
A
psychologist
and
expert on sex offenders testified at the pre-trial hearing about
important
similarities
between
the
1985
rape
and
this
case.
Both victims were 21-year-old college students with brown hair,
brown eyes, and similar height and weight.
In each case, a
knife was used, the victim was restrained, and homicide was
either threatened or occurred.
re-dressed after the rape.
Both victims had apparently been
The expert opined that Dixon had an
aberrant propensity to commit sexual assault.
testimony
and
the
substantial
similarities
6
Given the expert
between
the
two
crimes,
the
appropriate.
trial
See
court’s
propensity
determination
was
Ariz. R. Evid. 404(c)(1)(B), cmt. to 1997
Amend. (finding can be based on “expert testimony” or other
facts).
¶16
Rule 404(c)(1)(C) requires that the evidentiary value
of the other sexual conduct not be substantially outweighed by
the danger of unfair prejudice.
The trial judge did not abuse
his
that
discretion
satisfied.
in
concluding
Rule
404(c)(1)(C)
was
In finding the other act not unduly remote, the
judge noted that Dixon was out of custody for only about a year
between
the
incidents.
Sexual
intercourse
plainly
occurred
between Dixon and Deana, so the real question – at least for
determining whether the predicate felony of rape occurred – was
whether
the
sex
was
consensual.
Dixon
repeatedly
during trial that Deana had consented to sex.
assault
similar
of
another
victim
circumstances
of
had
the
same
significant
age
intimated
His 1985 sexual
under
probative
strikingly
value
in
refuting that claim and establishing that a rape occurred in
this case.
C. Physical Restraints
¶17
At trial, Dixon was required to wear a stun belt and a
leg brace under his clothing.
Citing Deck v. Missouri, 544 U.S.
622 (2005), he argues that these restraints violated his right
to a fair trial.
7
1. Relevant facts
¶18
When Dixon was tried, the Maricopa County Sheriff’s
Office
required
in-custody
defendants
who
were
dressed
in
civilian clothing to wear a leg brace and a stun belt while in
court.
Before trial, Dixon moved only to “exclud[e] the leg
brace,”
arguing
that
“[t]he
security
device
would
allow
wearing
[him]
of
the
the
stun
freedom
of
waist
belt
expression
before the jury that the State will enjoy.”
¶19
The trial judge denied the motion, stating that “there
are [jail] security policies for all in-custody defendants who
dress
out
in
exception.”
civilian
The
court
clothes”
and
initially
refusing
instructed
to
Dixon
“mak[e]
to
an
remain
seated at counsel table in the jury’s presence to avoid any
possibility that the security devices would be visible to them.
Dixon instead sought to move about the courtroom during trial.
Expressing concern that the leg brace might cause Dixon to walk
awkwardly, the judge said “if you want to make a motion to allow
you to stand up or to approach and you waive your right to have
the jury not see you walking in a stilted fashion, I’ll consider
it.”
¶20
A
week
later,
Dixon
demanded
use
of
a
podium
to
question witnesses.
After Dixon acknowledged the risk that a
jury
inference
might
draw
an
from
his
movement,
the
judge
acceded, stating “[t]he Court finds your decision to approach
8
the podium even though you have leg braces on and even though
there
is
a
possibility
a
jury
could
draw
inferences
is
a
knowing, voluntary, and intelligent one.”
¶21
The judge nonetheless repeatedly took steps to prevent
the jury from seeing the leg brace and stun belt.
The court
arranged for Dixon to be standing at the podium when the jury
entered
the
courtroom
and
reminded
Dixon
outside
presence not to allow the jury to “see him walk.”
the
jury’s
The court
instructed advisory counsel to approach for bench conferences
and
to
show
evidence
approach the bench.
to
witnesses,
and
told
Dixon
not
to
The court also told Dixon several times to
not turn his back to the jury and bend over, as doing so might
show the outline of the stun belt under Dixon’s shirt.
2. Standard of review
¶22
Generally, “[m]atters of courtroom security are left
to the discretion of the trial court.”
State v. Davolt, 207
Ariz. 191, 211 ¶ 84, 84 P.3d 456, 476 (2004).
“We will uphold a
trial court’s decision concerning trial security measures when
the decision is supported by the record.”
Id.
However, “courts
cannot routinely place defendants in shackles or other physical
restraints visible to the jury” during a trial absent a case
specific finding of a security concern.
9
Deck, 544 U.S. at 633
(emphasis added).3
¶23
Dixon argues that the trial judge erred by not making
the requisite finding.
The State contends that this argument
was waived because it was not made at trial.
Dixon’s pre-trial
motion, however, sufficiently preserved the objection to the leg
brace.
See State v. Anthony, 218 Ariz. 439, 446 ¶ 38, 189 P.3d
366, 373 (2008).
¶24
Dixon, however, never objected to the stun belt, and
indeed suggested that the belt would not impair his opportunity
to defend himself.
Therefore, we review the stun belt issue for
fundamental error.
Cf. State v. Mills, 196 Ariz. 269, 272-73
¶ 13,
995
P.2d
705,
708-09
(App.
1999)
(issue
waived
when
defendant initially questioned the use of shackles, but did not
further object after switching to a concealed leg brace).
Dixon
must prove “both that fundamental error exists and that the
error in his case caused him prejudice.”
Henderson, 210 Ariz.
at 567 ¶ 20, 115 P.3d at 607.
3. Alleged Deck error
a. Case specific determination
¶25
Before authorizing visible restraints, the trial court
3
During the guilt phase, Deck wore “leg braces that
apparently were not visible to the jury.”
544 U.S. at 624.
Deck did not challenge the leg braces on appeal. Deck v. State,
68 S.W.3d 418 (Mo. 2002).
After his first sentence was set
aside on unrelated grounds, id., Deck wore handcuffs, leg irons,
and a belly chain at his resentencing, Deck, 544 U.S. at 625.
10
must make a “case specific” determination reflecting “particular
concerns, say, special security needs or escape risks, related
to the defendant on trial.”
Deck, 544 U.S. at 633.
“A decision
based solely on a general jail policy of shackling defendants
who wear jail garb or exercise their constitutional right to
represent themselves is clearly not the kind of ‘case specific’
determination
of
‘particular
concerns’
that
Deck
requires.”
State v. Gomez, 211 Ariz. 494, 504 ¶ 49, 123 P.3d 1131, 1141
(2005) (footnote omitted).
A trial judge “must have grounds for
ordering
should
restraints
prosecutor’s
security
request,
personnel’s
and
a
not
sheriff’s
preference
for
simply
defer
department’s
the
use
of
to
policy,
the
or
restraints.
Rather, the judge should schedule a hearing at the defendant’s
request regarding the need for the restraints.”
State v. Cruz,
218 Ariz. 149, 168 ¶ 119, 181 P.3d 196, 215 (2008).
¶26
The trial judge here cited only jail policy and made
no particularized finding of the need for security measures.
We
reiterate that judges should not simply defer to jail policy in
ordering
restraints
of
defendants.
Rather,
they
should
determine on a case-by-case basis whether security measures are
required as to the particular defendant before them.
¶27
Deck,
however, requires reversal only if restraints
are “visible to the jury.”
Deck, 544 U.S. at 633; Gomez, 211
Ariz. at 504 ¶ 50, 123 P.3d at 1141; see also Mills, 196 Ariz.
11
at 272-73 ¶ 13, 995 P.2d at 708-09 (observing that “an unseen
restraint could not have affected the presumption of innocence”
(internal quotation marks omitted)).
The central issue here is
thus whether the restraints were visible.
b. Leg brace
¶28
In Gomez, we rejected the State’s argument that “leg
irons” and “chains” were not visible, in large part because the
trial judge offered to instruct the jury not to consider “the
chains.”
211 Ariz. at 504 ¶ 50, 123 P.3d at 1141.
Unlike leg
irons
shackles,
belts
or
however,
leg
braces
and
stun
are
typically worn under a defendant’s clothes, as they were here.
¶29
violate
Dixon cites no case holding that concealed leg braces
the
rule
announced
in
Deck.
Rather,
the
reported
decisions correctly treat a leg brace worn under clothing as not
visible in the absence of evidence to the contrary.
See, e.g.,
State v. Ninci, 936 P.2d 1364, 1387 (Kan. 1997); Zink v. State,
278 S.W.3d 170, 186 (Mo. 2009).
There is no evidence here that
the jury either saw the brace or inferred that Dixon wore one.
Cf. State v. Wassenaar, 215 Ariz. 565, 576 ¶ 44, 161 P.3d 608,
619 (App. 2007) (“While Defendant contends that several jurors
did see the restraints at some unspecified time, he provided no
admissible evidence to support his contention.”).
c. Stun belt
¶30
Because Dixon did not object to the stun belt below,
12
under fundamental error review he must show that it was visible
to the jury.
He has not met that burden.
Although the trial
judge, in warning Dixon not to bend over or turn his back to the
jury, speculated that jurors might be able to see the outline of
the belt beneath Dixon’s clothing, Dixon has not established
that the jury actually saw the belt or inferred its presence.
¶31
Dixon cites United States v. Durham, 287 F.3d 1297,
1305 (11th Cir. 2002), which suggests that even a non-visible
stun belt might violate the right to a fair trial.
Durham
court
was
primarily
concerned
about
the
But the
defendant’s
argument that the threat of electric shock would inhibit his
ability
defense.
to
communicate
with
Id. at 1305-06.
counsel
and
participate
in
his
In contrast, Dixon did not object to
the stun belt, expressly conceding that the non-visible belt
would allow him to freely express himself in court.
Under these
circumstances, we find no fundamental error.
d. Harmless error
¶32
Even when visible restraints are improperly imposed,
“[w]hen it is clear beyond a reasonable doubt that a rational
jury would have found the defendant guilty absent the error, the
error is harmless.”
Hymon v. State, 111 P.3d 1092, 1099 (Nev.
2005); see also Deck, 544 U.S. at 635 (noting applicability of
harmless error doctrine).
Given the DNA evidence implicating
Dixon and the circumstances of the crime, this is such a case.
13
To conclude that Dixon had not committed the murder, the jury
would
have
had
to
accept
that
Deana
agreed,
in
the
ninety
minutes between the time she left the bar and was found dead, to
have had sex with Dixon, apparently a complete stranger, and
that after Dixon left her apartment, another person entered the
apartment, strangled and stabbed her.
D. Admission of Dr. Keen’s Testimony
¶33
Dr. Heinz Karnitschnig, the Maricopa County medical
examiner at the time of the murder, conducted the autopsy and
prepared a report.
Philip
Keen,
who
He did not testify at trial.
had
more
recently
served
as
Instead, Dr.
the
medical
examiner, testified based on his review of the autopsy report
and photographs.
Neither the report nor the photographs were
admitted into evidence.
¶34
Dixon
Citing
contends
Amendment’s
Crawford
that
Dr.
Confrontation
v.
Washington,
Keen’s
Clause.
testimony
Dixon
541
U.S.
violated
did
not
36
(2004),
the
Sixth
raise
this
argument below, so we review only for fundamental error.
State
v. Womble, 225 Ariz. 91, 96 ¶ 10, 235 P.3d 244, 249 (2010).
We
find no error, fundamental or otherwise.
¶35
Because the State does not argue to the contrary, we
assume arguendo that the autopsy report itself was testimonial
hearsay.
But see United States v. De La Cruz, 514 F.3d 121, 133
(1st Cir. 2008) (autopsy reports not testimonial hearsay under
14
Crawford); United States v. Feliz, 467 F.3d 227, 230 (2d Cir.
2006) (same).
because
the
But that assumption avails Dixon not at all,
autopsy
report
was
not
admitted
into
evidence.
Rather, Dixon argues that Dr. Keen’s testimony, which relied on
the objective data in the report, was testimonial hearsay and
thus violated the Confrontation Clause.
¶36
We have previously rejected this very argument.
See,
e.g., State v. Snelling, 225 Ariz. 182, 187 ¶ 21, 236 P.3d 409,
414 (2010); State v. Smith, 215 Ariz. 221, 228 ¶ 23, 159 P.3d
531, 538 (2007).
Our cases teach that a testifying medical
examiner may, consistent with the Confrontation Clause, rely on
information in autopsy reports prepared by others as long as he
forms his own conclusions.
Smith, 215 Ariz. at 228 ¶ 23, 159
P.3d at 538; State v. Gomez, 226 Ariz. 165, 169-70 ¶ 22, 244
P.3d 1163, 1167-68 (2010) (“[A] medical examiner may offer an
expert
opinion
based
on
review
of
reports
and
test
results
prepared by others, as long as the testifying expert does not
simply
act
opinion.”
Evid.
703
as
a
conduit
(internal
(allowing
for
quotation
another
marks
testifying
non-testifying
omitted));
expert
to
rely
expert’s
cf.
Ariz.
R.
on
data
not
admitted into evidence).
¶37
Dr. Keen’s testimony is indistinguishable from that
upheld in our prior cases.
The medical examiner offered his
independent conclusions, relying on the factual findings of the
15
prior autopsy.
He neither parroted the report nor recited Dr.
Karnitschnig’s opinions.
E. Denial of Hybrid Representation
¶38
When Dixon elected before trial to represent himself,
the judge warned him that he would have “sole responsibility for
his
defense,”
witnesses.”
including
Dixon
“examining
nonetheless
later
and
cross-examining
requested
counsel cross-examine the State’s DNA experts.
that
advisory
Dixon sought,
however, to continue to represent himself in all other respects.
The trial court rejected “hybrid representation,” stating that
Dixon could elect to have counsel represent him at any point in
the trial, but would not then be allowed to revert to selfrepresentation.
We
review
the
decision
representation for abuse of discretion.
to
deny
hybrid
State v. Cornell, 179
Ariz. 314, 325, 878 P.2d 1352, 1363 (1994).
¶39
There
is
representation.
498,
910
constitutional
right
to
hybrid
Id.; see also State v. Roscoe, 184 Ariz. 484,
P.2d
representation
no
as
635,
649
(1996)
“disfavored”).
In
(characterizing
Cornell,
the
hybrid
defendant
sought to have advisory counsel cross-examine an expert.
Ariz. at 324-25, 878 P.2d at 1362-63.
179
As here, the trial judge
gave the defendant the option of continuing to represent himself
or having counsel take over completely.
1363.
The defendant chose self-representation and we upheld the
16
Id. at 325, 878 P.2d at
trial judge’s order, noting that a request to resume pro per
status during trial is “uniformly held” untimely, and that the
denial of an untimely motion is not an abuse of discretion.
at 326, 878 P.2d at 1364.
Id.
Similarly, the trial court here did
not abuse its discretion in denying Dixon’s motion for hybrid
representation.
F. Exclusion of Diary Evidence
¶40
Dixon argues that the trial court erroneously excluded
an entry from Deana’s diary, which he claims stated that she had
been
sexually
assaulted
assaulted again.
in
Europe
and
would
fight
back
if
Dixon argues that the evidence should have
been admitted under Arizona Rule of Evidence 803(3) to show that
his sexual contact with her was consensual, as she likely would
have forcibly resisted an assault.
¶41
Before trial, Dixon moved in limine to allow evidence
that Deana was sexually active.
This motion did not mention the
diary or the trip to Europe.
The court denied the motion,
citing the rape shield law, A.R.S. § 13-1421(A) (2010).
¶42
At trial, after Dixon asked Deana’s mother about the
diary, the prosecutor sought to exclude evidence from the diary
on
relevance
and
hearsay
grounds.
Dixon
responded
that
he
wanted to elicit the information from Deana’s boyfriend, and
added, “I doubt seriously I will use the diary itself.”
The
court ruled that Dixon could inquire about a witness’s first17
hand knowledge of Deana’s state of mind, but not about what was
in the diary.
¶43
Dixon then claimed for the first time that the diary
referred to a sexual assault in Europe, and the court stated
that it had
ruled under the rape shield law that her sexual
activity or conduct is irrelevant, immaterial, and
specifically excluded by statute unless you can fit it
into one of the narrowly defined exceptions under the
rule.
You haven’t given me a reason why this should
now come in.
Whether you call it an experience, a
rape, a molestation, whether you call it consensual
activity, whatever you call it, it’s still sexual
conduct under the statute.
The judge subsequently allowed Dixon to ask Deana’s boyfriend if
she carried a knife for personal protection.
¶44
The State contends that Dixon did not preserve any
objection to exclusion of evidence from the diary because the
record does not disclose what the document actually says.
See
Ariz. R. Evid. 103(a)(2) (requiring offer of proof to preserve
objection to exclusion of evidence); State v. Towery, 186 Ariz.
168, 179, 920 P.2d 290, 301 (1996) (requiring, “[a]t a minimum,
an offer of proof stating with reasonable specificity what the
evidence would have shown”).
We agree.
Although Dixon and
counsel discussed what they claimed was in the diary, no offer
of proof was made, nor was the diary marked for identification.
We thus have no basis for determining precisely what evidence
was excluded.
18
¶45
Even had the issue been properly preserved for appeal,
and assuming the contents of the diary were as Dixon claimed,
however,
we
would
find
no
abuse
of
discretion
in
the
trial
court’s ruling.
See State v. Villalobos, 225 Ariz. 74, 82 ¶ 33,
235
235
P.3d
227,
(2010)
(rulings
reviewed for abuse of discretion).
minimal probative value.
excluding
evidence
are
The alleged statements had
Deana’s state of mind years before the
murder hardly establishes that she surely would or could have
used a knife or other weapon to prevent this assault.
¶46
The diary evidence was also properly excluded under
the rape shield law, which categorically prohibits evidence of
“a victim’s reputation for chastity,” and allows evidence of
“instances of the victim’s prior sexual conduct” only in limited
circumstances not applicable here.
¶47
A.R.S. § 13-1421(A).
Dixon argues that a prior sexual assault is not “prior
sexual conduct” because a sexual assault is a crime of violence,
and thus also does not reflect on the victim’s “chastity.”
majority
view,
however,
is
that
sexual
sexual conduct under rape shield laws.
assaults
qualify
it
would
be
anomalous
to
as
See Grant v. Demskie, 75
F. Supp. 2d 201, 211-12 (S.D.N.Y. 1999) (collecting cases).
agree;
The
protect
rape
victims
We
from
questions about prior consensual conduct, but subject them to
cross-examination
about
assaults.
Cf.
State
v.
Oliver,
158
Ariz. 22, 27, 760 P.2d 1071, 1076 (1988) (applying common law
19
rape shield doctrine to child molestation victims).
G. Denial of Motion for a Continuance
¶48
Dixon was arraigned in January 2003; the State filed a
notice of intent to seek the death penalty in March of that
year.
In July 2003, defense counsel suggested that it might
take longer than usual to compile mitigation evidence because
Dixon spent his early life on the Navajo reservation.
counsel
stated
that
the
mitigation
specialist
would
After
need
“a
year,” the judge set the trial date for June 15, 2004.
¶49
Over the next few years, the court repeatedly granted
defense requests to continue the trial.
public
defender
assigned,
five
the
estimated
mitigation
months.
The
that
if
a
investigation
court
granted
a
In April 2004, the
new
specialist
could
be
defense
continuance and vacated the June trial date.
were
completed
motion
for
in
a
After the case was
reassigned to a new specialist, the deadline for disclosure of
mitigation evidence was accordingly extended to January 2005.
That
deadline
was
not
met,
and
after
Dixon
was
granted
permission to represent himself in March 2006, the trial date
was set for October 18, 2006.
In September 2006, however, Dixon
estimated that his mitigation evidence would not be ready for
“nine months or a year.”
The court continued the trial to June
25, 2007, “a date certain.”
¶50
In
May
2007,
however,
20
Dixon
told
the
court
his
mitigation was still not ready and sought another continuance.
The trial was reset for August 2007.
requested
another
continuance.
Two months later, Dixon
Although
he
expressed
frustration, the judge reset the trial date for September 13,
2007.
At a subsequent hearing, the trial date was moved back to
November 13, 2007.
¶51
A
asked
for
week
a
before
three-month
trial
was
scheduled
continuance.
The
to
begin,
court
Dixon
denied
the
motion, noting in a minute entry that “[t]he defense mitigation
work-up in this case has been ongoing for well over four years.”
Dixon
claims
that
the
court
erred
in
denying
this
last
continuance request.
¶52
At all times relevant to this case, Arizona Rule of
Criminal Procedure 8.2(a)(4) provided that capital cases “shall
be tried” within eighteen months of arraignment.4
Continuances
are governed by Rule 8.5(b), which states, in pertinent part:
A continuance of any trial date shall be granted only
upon a showing that extraordinary circumstances exist
and that delay is indispensable to the interests of
justice.
A continuance may be granted only for so
long as is necessary to serve the interests of
justice.
In ruling on a motion for continuance, the
court shall consider the rights of the defendant and
any victim to a speedy disposition of the case.
¶53
We review denials of continuances for “clear abuse of
discretion,” State v. Schackart, 190 Ariz. 238, 254, 947 P.2d
4
The rule now requires capital cases to be tried within
twenty-four months of arraignment. Ariz. R. Crim. P. 8.2(a)(4).
21
315, 331 (1997), as the trial judge is “the only party in a
position
to
determine
whether
there
are
‘extraordinary
circumstances’ warranting a continuance and whether ‘delay is
indispensable to the interests of justice,’” State v. Hein, 138
Ariz. 360, 368, 674 P.2d 1358, 1366 (1983).
¶54
We find no abuse of discretion here.
more than four years to develop mitigation.
Dixon was given
The trial court
found that the particular circumstances of this case, including
Dixon’s
decision
to
represent
himself
and
request
a
new
mitigation expert, justified repeatedly continuing the original
trial date.
Indeed, the judge granted continuances even after
cautioning Dixon that he had set “a date certain for trial.”
¶55
Dixon’s requests for continuances were premised on the
alleged need to develop more mitigation evidence.
However, in
the penalty phase, Dixon presented virtually no evidence, even
though advisory counsel advised the court that witnesses, both
expert
and
percipient,
amounts of mitigation.
mitigation
evidence,
were
prepared
to
present
substantial
In deciding to forego this available
Dixon
rejected
the
explicit
advice
of
advisory counsel and the strong suggestions of the trial court.
Instead, he chose to call only an expert to testify about his
prison history.
¶56
In rejecting Dixon’s final continuance request, the
trial court appropriately considered not only Dixon’s interests,
22
but also the rights of Deana’s parents, the crime victims.
Rule
8.5(b) expressly directs the trial judge to consider the rights
of victims, who, like the defendant, are entitled under our
Constitution to a speedy disposition of criminal charges.
Ariz. Const. art. 2, § 2.1(A)(10).
See
Deana’s parents repeatedly
asserted that right and the superior court did not abuse its
discretion,
after
granting
numerous
continuances,
in
finally
honoring their request that the trial proceed.
H. Issues Raised to Avoid Federal Preclusion
¶57
Dixon
raises
twenty-one
issues
that
he
claims
have
been rejected in decisions by the Supreme Court of the United
States
or
this
Court.
The
claims
and
the
decisions
he
identifies as rejecting them are reprinted in the appendix to
this opinion.
I. Independent Review of the Death Sentence
¶58
Because the murder in this case occurred before August
1, 2002, we independently review the aggravation and mitigation
findings,
as
well
as
the
propriety
of
the
death
sentence.
A.R.S. § 13-755; 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1,
§ 7(B).
jury,
We “do not defer to the findings or decision of the
with
respect
to
aggravation
or
mitigation,
determin[ing] the propriety of the death sentence.”
Newell,
212
Ariz.
389,
405
¶
82,
132
P.3d
833,
when
State v.
849
(2006)
(alteration in original) (internal quotation marks omitted).
23
We
consider the quality and strength, not merely the quantity, of
aggravating
and
mitigating
circumstances.
Id.
If
“the
mitigation is sufficiently substantial to warrant leniency,” we
must impose a life sentence.
Id. at ¶ 81 (internal quotation
mark omitted).
1.
The
¶59
Aggravation phase
jury
found
two
aggravating
factors:
a
previous
conviction of a crime for which life imprisonment or death was
imposable,
A.R.S.
especially
cruel
§
13-751(F)(1),
and
heinous,
and
A.R.S.
that
§
the
murder
was
13-751(F)(6).
Both
statutory factors were established beyond a reasonable doubt.
¶60
1985
Dixon was convicted of seven crimes stemming from the
rape
imposed.
of
an
NAU
student
and
seven
life
sentences
were
Dixon thus correctly concedes that the A.R.S. § 13-
751(F)(1) aggravator was proved.
¶61
A
murder
is
especially
cruel
under
A.R.S.
§
13-
751(F)(6) when the victim consciously “suffered physical pain or
mental anguish during at least some portion of the crime and []
the defendant knew or should have known that the victim would
suffer.”
State v. Morris, 215 Ariz. 324, 338 ¶ 61, 160 P.3d
203, 217 (2007).
We find especial mental cruelty here.
Deana
surely must have suffered mental anguish while being raped, hit,
and strangled, and Dixon should have known that the victim would
suffer such anguish.
See State v. McCray, 218 Ariz. 252, 259
24
¶¶ 32-33, 183 P.3d 503, 510 (2008) (finding mental anguish under
similar facts); see also State v. Gallardo, 225 Ariz. 560, 56566 ¶¶ 17-19, 242 P.3d 159, 164-65 (2010) (finding mental anguish
when the defendant bound the victim and covered his head with a
pillowcase before shooting him).5
2.
¶62
Penalty phase
Dixon presented only one witness in the penalty phase
– an expert who testified about Dixon’s behavior in prison and
the ability of the prison system to manage him.
presented
a
witness
challenging
that
The State
testimony.
But
even
assuming that the testimony of Dixon’s expert was accurate, we
give it little mitigating weight, as prisoners are expected to
behave properly.
See State v. Pandeli, 215 Ariz. 514, 533 ¶ 82,
161 P.3d 557, 576 (2007).
find
that
any
After reviewing the entire record, we
mitigation
established
substantial to call for leniency.
is
not
sufficiently
We therefore affirm the death
sentence.
III. CONCLUSION
¶63
For
the
foregoing
reasons,
we
affirm
Dixon’s
conviction and death sentence.
5
Especial mental cruelty alone establishes the A.R.S. § 13751(F)(6) aggravator. Gallardo, 225 Ariz. at 565 ¶ 16, 242 P.3d
at 164.
Because we find mental cruelty, we need not determine
whether the murder was also either especially physically cruel
or heinous. Id. at 265 ¶ 16, 242 P.3d at 164.
25
_____________________________________
Andrew D. Hurwitz, Vice Chief Justice
CONCURRING:
_____________________________________
Rebecca White Berch, Chief Justice
_____________________________________
W. Scott Bales, Justice
_____________________________________
A. John Pelander, Justice
_____________________________________
Robert M. Brutinel, Justice
APPENDIX
1. The fact-finder in capital cases must be able to
consider all relevant mitigating evidence in deciding
whether to give the death penalty. See Woodson v.
North Carolina, 428 U.S. 280, 304 96 S. Ct. 2978
(1976). The trial court’s failure to allow the jury to
consider and give effect to all mitigating evidence in
this case by limiting its consideration to that proven
by a preponderance of the evidence is unconstitutional
under the Eighth and Fourteenth Amendments. State v.
McGill, 213 Ariz. 147, 161, ¶ 59, 140 P.3d 930, 944
(2006); see also State v. Medina, 193 Ariz. 504, 514–
15, ¶ 43, 975 P.2d 94, 104–05 (1999).
2. Arizona’s death penalty law 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).
26
3. The (F)(6) “especially heinous, cruel or depraved”
aggravating factor is unconstitutionally vague and
overbroad because the jury does not have enough
experience
or
guidance
to
determine
when
the
aggravator is met. The finding of this aggravator by a
jury violates the Eighth and Fourteenth Amendments
because it does not sufficiently place limits on the
discretion of the sentencing body, the jury, which has
no “narrowing constructions” to draw from and give
“substance” to the otherwise facially vague law. State
v. Cromwell, 211 Ariz. 181, 188-90, ¶¶ 38–45, 119 P.3d
448, 455–57 (2005), and State v. Anderson, 210 Ariz.
327, 353, ¶ 114, 111 P.3d 369, 395 (2005).
4. The court also instructed the jury that they “must
not be influenced by mere sympathy or by prejudice in
determining these facts.” These instructions limited
the mitigation the jury could consider in violation of
the Fifth, Sixth, Eighth and Fourteenth Amendments and
Article 2, §§ 1, 4, 15, 23, and 24 of the Arizona
Constitution. State v. Carreon, 210 Ariz. 54, 70–71,
¶¶ 81–87, 107 P.3d 900, 916–17 (2005).
5. The death penalty is cruel and unusual under any
circumstances and violates the Eighth and Fourteenth
Amendments, and Article 2, § 15 of the Arizona
Constitution. Gregg v. Georgia, 428 U.S. 153, 186–87,
96 S. Ct. 2909 (1976); State v. Harrod, 200 Ariz. 309,
320, ¶ 59, 26 P.3d 492, 503 (2001), vacated on other
grounds, 536 U.S. 953, 122 S. Ct. 2653 (2002)(mem.);
see also Salazar, 173 Ariz. at 411, 844 P.2d at 578.
6. The death penalty is irrational and arbitrarily
imposed; it serves no purpose that is not adequately
addressed by life in prison, in violation of the
defendant’s right to due process under the Fourteenth
Amendment to the United States Constitution and
Article 2, §§ 1 and 4 of the Arizona Constitution.
State v. Smith, 203 Ariz. 75, 82, ¶¶ 35–36, 50 P.3d
825, 832 (2002), and State v. Beaty, 158 Ariz. 232,
247, 762 P.2d 519, 534 (1988).
7. There is no meaningful distinction between capital
and non-capital cases, making each crime the product
of an unconstitutionally vague statute. Salazar, 173
Ariz. at 411, 844 P.2d at 578.
27
8.
Arizona’s
capital
sentencing
scheme
unconstitutionally
serves
no
deterrent
purpose,
exceeds any legitimate retributive aim, is without
penological
justification,
and
results
in
the
gratuitous infliction of suffering. Gregg, 428 U.S. at
183.
9. The prosecutor's discretion to seek the death
penalty has no standards and therefore violates the
Eighth and Fourteenth Amendments, and Article 2, §§ 1,
4, and 15 of the Arizona Constitution. State v.
Sansing, 200 Ariz. 347, 361 ¶ 46, 26 P.3d 1118, 1132
(2001), vacated on other grounds, 536 U.S. 954, 122 S.
Ct. 2654 (mem.); see also Cromwell, 211 Ariz. at 181,
§58, 119 P.3d at 459; State v. Finch, 202 Ariz. 410,
419, ¶ 50, 46 P.3d 421, 430 (2002).
10. Arizona’s death penalty is applied so as to
discriminate against poor, young, and male defendants,
particularly when the victim is a Caucasian, in
violation of Article 2, §§ 1, 4, and 13 of the Arizona
Constitution. Sansing, 200 Ariz. at 361, ¶ 46, 26 P.3d
at 1132; see also State v. Stokley, 182 Ariz. 505,
516, 898 P.2d 454, 465 (1995); State v. West, 176
Ariz. 432, 455, 862 P.2d 192, 215 (1993).
11. 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. 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, and Article 2, § 15 of the
Arizona Constitution. Gulbrandson, 184 Ariz. at 73,
906 P.2d at 606; see also Salazar, 173 Ariz. at 417,
844 P.2d at 584.
12.
Arizona’s
capital
sentencing
scheme
is
unconstitutional because it does not require the State
to prove the death penalty is appropriate or require
the jury to find beyond a reasonable doubt that the
aggravating circumstances outweigh the accumulated
mitigating circumstances. Instead, Arizona's death
penalty statute requires defendants to prove their
28
lives should be spared, in violation of the Fifth,
Eighth, and Fourteenth Amendments, and Article 2, § 15
of the Arizona Constitution. State v. Fulminante, 161
Ariz. 237, 258, 778 P.2d 602, 623 (1988); see also
Carreon, 210 Ariz. at 76 ¶ 122, 107 P.3d at 922.
13.
Arizona’s
death
penalty
scheme
does
not
sufficiently channel the sentencing jury's discretion.
Aggravating circumstances should narrow the class of
persons eligible for the death penalty and reasonably
justify the imposition of a harsher penalty. A.R.S. §
13–703.01 is unconstitutional because it provides no
objective standards to guide the jury in weighing the
aggravating and mitigating circumstances and fails to
provide principled means to distinguish between those
who deserve to die or live. State v. Johnson, 212
Ariz. 425, 440, ¶69, 133 P.3d 735, 750 (2006). The
broad
scope
of
Arizona's
aggravating
factors
encompasses nearly anyone involved in a murder, in
violation of the Eighth and Fourteenth Amendments, and
Article 2, § 15 of the Arizona Constitution. State v.
Pandeli, 200 Ariz. 365, 382 ¶ 90, 26 P.3d 1136, 1153
(2001), vacated on other grounds, 536 U.S. 953, 122 S.
Ct. 2654 (2002)(mem.); see also State v. Greenway, 170
Ariz. 155, 164, 823 P.2d 22, 31 (1991).
14. The jury instruction that required the jury to
unanimously
determine
that
the
mitigating
circumstances were “sufficiently substantial to call
for leniency” violated the Eighth Amendment. Ellison,
213 Ariz. at 139, ¶¶ 101–102, 140 P.3d at 922.
15. The failure to instruct the jury that only murders
that are “above the norm” may qualify for the death
penalty violates the Sixth, Eighth and Fourteenth
Amendments. State v. Bocharski, 218 Ariz. 476, 487–88,
¶¶ 47–50, 189 P.3d 403, 414–15 (2008).
16. The refusal to permit voir dire of prospective
jurors regarding their views on specific aggravating
and mitigating circumstances violates Appellant’s
rights under the Sixth and Fourteenth Amendments.
Johnson, 212 Ariz. at 440, ¶¶ 29–35, 133 P.3d at 750.
17. Refusing to instruct the jury or permit the
introduction
of
evidence
and
argument
regarding
residual doubt violated Appellant’s rights under the
29
Sixth, Eighth and Fourteenth Amendments and Arizona
law. State v. Harrod, 218 Ariz. 268, 278–79, ¶¶ 37–39,
183 P.3d 519, 529–30 (2008); State v. Garza, 216 Ariz.
56, 70 ¶ 67, 163 P.3d 1006, 1020 (2007).
18. Execution by lethal injection is cruel and unusual
punishment in violation of the Eighth and Fourteenth
Amendments, and Article 2, § 15 of the Arizona
Constitution. State v. Van Adams, 194 Ariz. 408, 422,
¶ 55, 984 P.2d 16, 30 (1999); State v. Hinchey, 181
Ariz. 307, 315, 890 P.2d 602, 610 (1995).
19. 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, ¶¶ 61–62, 161 P.3d 540, 553 (2007).
20. Arizona’s death penalty scheme 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, and Article 2, Section 15 of
the Arizona Constitution. Arizona’s death penalty law
cannot constitutionally presume that death is the
appropriate default sentence. Walton v. Arizona, 497
U.S. 639, 648, 110 S. Ct. 3047 (1990); State v. Miles,
186 Ariz. 10, 19, 918 P.2d 1028, 1037 (1996).
Arizona’s death statute creates an unconstitutional
presumption of death and places an unconstitutional
burden
on
Appellant
to
prove
mitigation
is
“sufficiently substantial to call for leniency.” State
v. Glassel, 211 Ariz. 33, 52 ¶ 72, 116 P.3d 1193, 1212
(2005).
21. The failure to provide the jury with a special
verdict on Appellant’s proffered mitigation deprived
him of his rights to not be subject to ex post facto
legislation and right to meaningful appellate review.
State v. Roseberry, 210 Ariz. 360, 373 74 & n. 12, 111
P.3d 402, 415 (2005).
30
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