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A jury found Benjamin Cota guilty of two counts of first degree murer, two counts of armed robbery, one count of possession of narcotics, and one count of unlawful flight. Cota was sentenced to death on one first degree murder count and to prison terms for the other counts. The trial judge stated that he believed Arizona law "required" him to make the sentences on the "non-capital" counts consecutive, and he did so on all but the flight count. The Supreme Court affirmed Cota's convictions and death sentence but remanded for resentencing on the non-capital counts, holding that although the judge here imposed one concurrent sentence, the Court was not convinced the judge was aware of his discretion to do the same with all other sentences under Ariz. Rev. Stat. 13-708.Receive FREE Daily Opinion Summaries by Email
SUPREME COURT OF ARIZONA
STATE OF ARIZONA,
BENJAMIN BERNAL COTA,
Arizona Supreme Court
Nos. CR2004-006577-001 DT
O P I N I O N
Appeal from the Superior Court in Maricopa County
The Honorable Michael D. Jones, Judge
CONVICTIONS AND DEATH SENTENCE AFFIRMED; REMANDED FOR
RESENTENCING ON NON-CAPITAL COUNTS
THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL
Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Susanne Bartlett Blomo, Assistant Attorney General
Attorneys for State of Arizona
DAVID GOLDBERG, ESQ.
Fort Collins, CO
Attorney for Benjamin Cota
H U R W I T Z, Vice Chief Justice
A jury found Benjamin Bernal Cota guilty of two counts
of first degree murder, two counts of armed robbery, one count
of possession of narcotics, and one count of unlawful flight.
He was sentenced to death on one first degree murder count and
to prison terms for the other counts.
We have jurisdiction over
Constitution and A.R.S. §§ 13-4031 and 13-4033(A)(1) (2011).1
I. FACTS AND PROCEDURAL BACKGROUND2
Victor Martinez and his wife, Guadalupe Zavala, lived
In late 2003, they hired Cota to assist with home
Martinez and Zavala had jobs outside their
home and spoke with friends and family daily.
But on December
30, 2003, both disappeared without explanation.
Martinez was last seen that afternoon.
He told his
son that he was going to take a nap, and then drive Cota home
before going to work at 6:00 p.m.
Martinez never arrived at
Zavala worked until 8:00 p.m. that night, but was never
family members called and went by the couple’s home repeatedly
in the following days.
Cota sometimes answered the telephone
and gave inconsistent accounts about the couple’s whereabouts.
He also began driving the couple’s pickup truck and gave their
car to his son.
He sold the couple’s water heater and tried to
sell jewelry he claimed the couple had given him.
We cite the current version of statutes
materially changed since the events at issue.
“We view the facts in the light most favorable to upholding
State v. Chappell, 225 Ariz. 229, 233 ¶ 2 n.1,
236 P.3d 1176, 1180 n.1 (2010).
He withdrew money from the couple’s bank accounts on
January 5 and 6.
He invited friends to stay with him at the
couple’s home, but told them not to enter the master bedroom or
answer the phones.
After Cota allowed them to enter the master
bedroom, one friend saw a large pile of clothes in the closet.
On January 6, family members went to the home and
noticed items missing outside, including the water heater.
called the police and gained entrance into the home.
the bodies of Martinez and Zavala wrapped in plastic in the
master bedroom closet beneath a pile of clothes.
Police located Cota at his mother’s home, where the
couple’s pickup truck was parked.
During an ensuing chase, Cota
tossed items out of the truck, including drugs and his wallet.
Police apprehended him after he crashed the truck and fled on
His wallet contained Zavala’s date of birth and social
searched Cota’s mother’s home and found his shoes.
Martinez, and Zavala.
Cota was charged in one indictment with two counts of
first degree murder and two counts of armed robbery, and in a
second with possession of narcotics and unlawful flight.
indictments were joined for trial, and a jury found Cota guilty
on all counts.
In the aggravation phase of the murder cases,
the jury found that Cota had been convicted of a serious offense
committed on the same occasion, A.R.S. § 13-751(F)(2), that Cota
committed the crime while on authorized release, § 13-751(F)(7),
and that Martinez was over the age of seventy, § 13-751(F)(9).
sentence for the murder of Zavala, but was unable to reach a
verdict as to the murder of Martinez.
The trial court sentenced
Cota to natural life on that count and to prison terms for the
non-homicide counts, all but one consecutive to the others.
ISSUES ON APPEAL
A. Consolidation of Cases and Flight Evidence
Cota argues that the trial court erred by admitting
evidence of his flight from the police and by joining the two
indictments for trial.
Cota, however, twice consented to the
He first did so months before trial and again early in
the trial when the judge entered a formal consolidation order.
Before joining the indictments, the trial court had
granted the State’s motion to admit evidence of Cota’s flight in
flight evidence, but said that in light of the court’s previous
adverse ruling on that issue, Cota had decided to consent to the
joinder for strategic reasons.
Thus, the only relevant question
is whether the flight evidence was properly admitted.
for abuse of discretion.
State v. Bible, 175 Ariz. 549, 592,
858 P.2d 1152, 1195 (1993).
Evidence of flight is admissible to show consciousness
of guilt when the defendant flees “in a manner which obviously
invites suspicion or announces guilt.”
State v. Weible, 142
Ariz. 113, 116, 688 P.2d 1005, 1008 (1984).
Cota does not
dispute this general principle, but argues that the eight days
commission of the crime, however, goes to the weight of the
evidence, not its admissibility.
Bible, 175 Ariz. at 592, 858
P.2d at 1195; see also State v. Edwards, 136 Ariz. 177, 184, 665
P.2d 59, 66 (1983) (holding flight evidence properly admitted
when defendant fled from police fifteen months after the crime
inadmissible because he may have been fleeing because he had
violated parole and had drugs in the car.
But “[m]erely because
a defendant is wanted on another charge . . . does not make
evidence of flight per se inadmissible.”
Bible, 175 Ariz. at
discretion by admitting the flight evidence and instructing the
jury as to its limited use with respect to the murder counts.3
B. Exclusion of Non-English Speaking Jurors
prospective jurors “not currently capable of understanding the
Cota moved to preclude the jury commissioner
from excluding non-English speakers from the master jury list.
Citing State v. Cordova, 109 Ariz. 439, 511 P.2d 621 (1973), the
trial court denied the motion.
Cota argues that § 21-202(B)(3)
We review a statute’s constitutionality de
State v. Stummer, 219 Ariz 137, 141 ¶ 7, 194 P.3d 1043,
“[T]he American concept of the jury trial contemplates
Taylor v. Louisiana, 419 U.S. 522, 527 (1975).
alleging a fair cross-section violation of the Sixth Amendment
(1) that the group alleged to be excluded is a
“distinctive” group in the community; (2) that the
representation of this group in venires from which
juries are selected is not fair and reasonable in
relation to the number of such persons in the
community; and (3) that this underrepresentation is
Contrary to Cota’s argument, Arizona Rule of Evidence
404(b) did not prohibit the admission of evidence of Cota’s
flight, because the evidence was not used “to prove the
character of a person in order to show action in conformity
therewith.” Ariz. R. Evid. 404(b).
due to systematic exclusion of the group in the juryselection process.
Duren v. Missouri, 439 U.S. 357, 364 (1979).
is not violated, however, if “a significant state interest” is
“manifestly and primarily advanced by those aspects of the juryselection process . . . that result in the disproportionate
exclusion of a distinctive group.”
Id. at 367-68.
however, excuses all prospective jurors “not currently capable
“Non-English speakers” are not a “distinctive group” for Sixth
39-40 (Or. 2010);
See, e.g., State v. Haugen, 243 P.3d 31,
Commonwealth v. Acen, 487 N.E.2d 189, 194
In rejecting a similar challenge, we noted that “[i]t
would be an undue burden upon the State court system to have to
translate for non-English speaking or reading jurors.”
109 Ariz. at 441, 511 P.2d at 623.
This state interest remains
Cota contends that Cordova is no longer valid in light of
Ruiz v. Hull, 191 Ariz. 441, 957 P.2d 984 (1998), which
concerned Article 28 of the Arizona Constitution, the “English
C. Dismissal of Juror 46
Given Cota’s drug addiction and widespread drug use
among his friends and family, testimony at the guilt and penalty
addiction were therefore included in the juror questionnaire.
Juror 46 disclosed that two of her brothers had died
of heroin overdoses.
When the prosecutor asked if she could set
responded, “Honestly, no.
It’s upsetting me right now thinking
When the trial judge asked if she could be fair to
both sides, Juror 46 said she didn’t know if she could be fair
to the prosecution.
The judge excused her for cause.
Cota argues that the trial judge erred by excusing
Juror 46 and by not allowing Cota sufficient opportunity to
as the Official Language” amendment. But Ruiz was not based on
a classification of non-English speakers as a “distinctive”
Rather, the Court held that the amendment violated the
First and Fourteenth Amendments insofar as it “impinge[d] upon
both the fundamental right to participate equally in the
political process and the right to petition the government for
redress.” Id. at 459, 957 P.2d at 1002. Neither concern is at
Cota also argues that his right to a jury selected in a
non-discriminatory manner was violated.
The defendant’s burden
in establishing a prima facie violation of this Fourteenth
Amendment right is virtually identical to the burden in
establishing a Sixth Amendment fair cross-section claim.
Castaneda v. Partida, 430 U.S. 482, 494 (1977).
Fourteenth Amendment claim fails for the same reasons as his
Sixth Amendment claim.
We review for abuse of discretion.
Lavers, 168 Ariz. 376, 390, 814 P.2d 333, 347 (1991).
A juror should be excused for cause “[w]hen there is
reasonable ground to believe that a juror cannot render a fair
and impartial verdict.”
Ariz R. Crim. P. 18.4(b).
supports the trial court’s dismissal of this juror.
also demonstrates that, before the trial judge excused Juror 46,
defense counsel had a fair opportunity to examine her.
State v. Cañez, 202 Ariz. 133, 148 ¶ 37, 42 P.3d 564, 579 (2002)
(“The method and scope of voir dire is left to the discretion of
the trial judge.”).6
D. Admissibility of Interrogation
Police arrested Cota on January 6, 2004, at about 5:30
Cota later told police that he had used drugs in the hour
approximately two hours, Cota invoked his right to counsel and
appeared to fall asleep a few times.
Cota also argues that excusing Juror 46 violates the rule
of Witherspoon v. Illinois, 391 U.S. 510 (1968).
case, a juror may not be removed for cause for mere misgivings
or general objections to the propriety of the death penalty, but
rather only if “irrevocably committed” to vote against death.
Id. at 520-23, 522 n.21.
Juror 46’s removal, however, had
nothing to do with her views on the death penalty.
Cota contends that the trial court erred by admitting
involuntary as a result of drug intoxication, and (2) he invoked
his right to remain silent two times before the police finally
acknowledged the invocation of his right to counsel.
superior court, however, Cota objected to the introduction of
the interrogation only on voluntariness grounds.
We review the
State v. Clabourne, 142 Ariz. 335, 342, 690 P.2d 54, 61 (1984).
We review the Miranda claim only for fundamental error.
State v. Henderson, 210 Ariz. 561, 567 ¶¶ 19-20, 115 P.3d 601,
after an evidentiary hearing.
We uphold factual findings as to
supported by adequate evidence in the record.”
State v. Rhymes,
129 Ariz. 56, 57-58, 628 P.2d 939, 940-41 (1981).
Statements are not automatically inadmissible if given
under the influence of drugs or alcohol.
at 342, 690 P.2d at 61.
Clabourne, 142 Ariz.
But, if the defendant is so intoxicated
“that he could not understand the meaning of his statements,
then the statements were involuntary.”
State v. Tucker, 157
Ariz. 433, 446, 759 P.2d 579, 592 (1988).
“We look to the
totality of the circumstances to determine whether the accused
was able to reason, comprehend, or resist.”
confirms that Cota fully comprehended the questions posed and
gave appropriate answers.
The record supports the trial court’s
finding that his statements were voluntary.
2. Miranda Issue
individual indicates in any manner, at any time prior to or
interrogation must cease.”
Miranda v. Arizona, 384 U.S. 436,
Invocation of the right to remain silent need
Ramirez, 79 F.3d 298, 304 (2d Cir. 1996) (“A suspect need not
rely on talismanic phrases or any special combination of words
Cota cites two alleged invocations of the right to
remain silent during the interrogation.
We examine each in
i. The Page 24 Statement
The first alleged invocation occurs at page 24 of the
interrogation transcript (the “Page 24 Statement”), after the
detectives had repeatedly told Cota (apparently inaccurately)
that they had discovered blood on his clothing:
Laing: That’s why we are asking you.
The blood’s on
your clothing. I don’t see any big injuries on you to
get that kind of blood.
Cota: There ain’t no blood on my shirt.
Laing: Yes there is.
Cota: I’m not saying nothing no more[;] you guys are
fucking with me.
This statement was not an unambiguous invocation of
the right to remain silent.
A reasonable officer could have
construed Cota’s comments as meaning that he knew the officers
were lying about blood on his shirt and that he no longer wished
to talk about this subject.
See State v. Lawson, 144 Ariz. 547,
554-55, 698 P.2d 1266, 1273-74 (1985) (finding that statement,
“I’ve got nothing to say,” made in response to the question –
“You got anything to say to that?” - could fairly be read as a
refusal to talk about that specific question and not a general
invocation of the right to remain silent).
ii. The Page 40 Statement
The second alleged invocation occurs at page 40 (the
“Page 40 Statement”):
Laing: Hey Benjamin we’re not lying to you man. We’ve
got your clothes and they’ve got blood on them. You’ve
got some explaining to do because you’re going to be
in a lot of shit of [sic] that blood comes back and it
belongs to Victor.
You’re gonna have a lot of
explaining to do. If things just went crazy you need
to let us know. But I’ve been doing this job too long
Benjamin. Don’t . . . don’t sit there and play . . .
play me to be the fool, I know when you’re lying to
me, you’re not telling the truth now. What happened?
Cota: I’m sorry, what was your name?
Laing: Detective Laing . . . Bill Laing.
Cota: Laing I ain’t saying nothing no more.
The Page 40 Statement was an unambiguous invocation of
the right to remain silent, and questioning should have ceased
at this point.
In contrast to the Page 24 Statement, Cota was
Cota’s answer was unequivocal, and more calm and thoughtful than
the Page 24 Statement, as evidenced by his demeanor, tone of
voice, and the additional step of asking the detective his name.
The Page 40 Statement is indistinguishable from those
we have previously found to be unambiguous invocations of the
right to remain silent.
In State v. Finehout, for example, we
rejected the argument that the following exchange was ambiguous:
JONES: You might as well be honest with us, cause you
knowDEFENDANT: I'm trying to be honest.
DEFENDANT: Well, I ain't going to say any more.
136 Ariz. 226, 227-29, 665 P.2d 570, 571-73 (1983); see also
State v. Castaneda, 150 Ariz. 382, 386, 724 P.2d 1, 5 (1986) (“I
have nothing to say” invoked right to remain silent.); State v.
Szpyrka, 220 Ariz. 59, 61-62 ¶ 5, 202 P.3d 524, 526-27 (App.
2008) (“I ain’t got nothin’ to say” invoked Fifth Amendment
rights.); Strayhand, 184 Ariz. at 585, 911 P.2d at 591 (“‘Well I
don’t want [to] answer anymore,’ could not have been clearer”
invocation of Fifth Amendment rights.).
iii. Fundamental Error Analysis
Fundamental error goes to the foundation of
the case, takes away a right essential to the defense, and is so
severe that the defendant could not have received a fair trial.
Henderson, 210 Ariz. at 567 ¶¶ 19-20, 115 P.3d at 607.
interrogation after page 40 because the continued questioning
did not prejudice Cota at any phase of the trial.
Cota did not admit to the murders, either before or
after page 40.
Rather, he continued to maintain his innocence
even after invoking his right to remain silent.
Thus, the only
prejudice Cota could have suffered from admission of statements
protestations of innocence.
However, virtually all of Cota’s
statements after page 40 mirrored others made earlier in the
The one significant exception is Cota’s claim after
page 40 that Martinez came back to the house at some point,
stating that Zavala was “dead in his heart.”
But other evidence
dealer testified that Cota had told her that the couple had gone
on vacation to Mexico, but that Martinez had returned and said
Zavala was “dead in his heart.”
E. Psychological Testing
After Cota gave notice of his intent to present mental
health experts in the penalty phase, the State moved for an
examination by its expert, which was to include the MMPI-II
Cota did not object to the examination, but objected
to testing because his experts had done none.
The trial court
State v. Newell, 212 Ariz. 389, 404-05 ¶ 78, 132 P.3d 833, 84849 (2006).
A defendant offering expert mental health testimony
must either submit to a state examination or forego introducing
State v. Schackart, 175 Ariz. 494, 500-01, 858
P.2d 639, 645-46 (1993); Phillips v. Araneta, 208 Ariz. 280, 283
¶ 9, 93 P.3d 480, 483 (2004) (applying Schackart to the penalty
phase of a capital trial).
The State’s examination need not
mirror that of the defense.
Rather, the State is entitled to “a
Phillips, 208 Ariz. at 283 ¶ 9, 93 P.3d at 483.
Here, the State’s expert testified that mental health experts
potentially helpful in evaluating the diagnoses made by Cota’s
The judge did not abuse his discretion by ordering
Cota to submit to the MMPI.
See Perkins v. State, 808 So. 2d
1041, 1128 (Ala. Crim. App. 1999) (concluding that use of MMPI
did not violate Fifth Amendment rights of defendant who put
mental health at issue), vacated on other grounds by Perkins v.
Alabama, 536 U.S. 953 (2002).
F. Various Juror Issues
Cota contends that the trial court erred by dismissing
Juror 2 and designating Jurors 5, 9, and 13 as alternates.
deliberate in the penalty phase after not deliberating in the
guilt and aggravation phases.7
As the State points out, Cota’s argument regarding Juror 10
seemingly also applies to Juror 9, who deliberated in the
penalty phase after serving as an alternate in the first two
1. Juror 2
On the second day of trial, a witness testified that
he had known Martinez for fifty years.
The prosecutor later
incorrectly called the period “half a decade.”
After Juror 2
Juror 2 took offense and reported to the bailiff that
she was “humiliated,” had missed several minutes of testimony
because she was upset, and wasn’t sure she could ever side with
the State thereafter.
she was upset.
Questioning by the court confirmed that
The next day, the State moved to strike Juror 2.
objection, citing the juror’s statements to the bailiff, her
claim to be “offended,” and the fact that she missed testimony.
A trial court’s findings regarding a juror’s ability
reviewed for abuse of discretion.
State v. Garcia, 224 Ariz. 1,
16 ¶ 66, 226 P.3d 370, 385 (2010); State v. Trostle, 191 Ariz.
4, 12, 951 P.2d 869, 877 (1997).
The trial court should excuse
a juror “[w]hen there is reasonable ground to believe that a
juror cannot render a fair and impartial verdict.”
Crim. P. 18.4(b).
The “reasonable ground” may arise during
phases. Cota, however, does not raise a similar argument as to
Trostle, 191 Ariz. at 13, 951 P.2d at 878.
here supports the trial judge’s decision.
2. Juror 10
Cota argues that the trial court erred by allowing
Juror 10 to deliberate in the penalty phase after serving as an
alternate in the previous two phases.
But we have repeatedly
rejected the argument that the same jurors must serve in all
phases of a capital trial.
See State v. Prince, 226 Ariz. 516,
527-28 ¶¶ 21-25, 250 P.3d 1145, 1156-57 (2011);
Ariz. at 17 ¶ 71, 226 P.3d at 386.
because the trial court here did not voir dire Juror 10 to see
required; the juror must simply be aware of her role in the
Garcia, 224 Ariz. at 17 ¶¶ 70-71, 226 P.3d at
discuss this role with the juror individually, such discussion
is not necessary where the entire jury is instructed properly,
as it was here.
3. Jurors 5, 9, and 13
During selection, jurors were told when the trial was
scheduled to end.
Unfortunately, the trial did not proceed as
promptly as envisioned.
Juror 9 had already made vacation plans
for the week in which guilt phase deliberations finally were to
Jurors 5 and 13 both had already paid for tickets to
leave town when the penalty phase began.
On each occasion, the
releasing them or continuing the trial.
Alternates are supposed to be selected by lot by the
Ariz. R. Crim. P. 18.5(h).
However, designation of
alternates by the trial judge does not require reversal in the
absence of resulting prejudice.
State v. Blackhoop, 162 Ariz.
121, 122, 781 P.2d 599, 600 (1989); State v. Martinez, 198 Ariz.
5, 9 ¶¶ 15-19, 6 P.3d 310, 314 (App. 2000).
Cota has not shown
that he was deprived of a fair and impartial jury at any stage
Blackhoop, 162 Ariz. at 122, 781 P.2d at 600.
G. Admission of Autopsy Photographs
The photographs depict both victims in the
The trial court admitted three photographs only in
black and white to minimize any “gruesome effect.”
for abuse of discretion.
State v. Lynch, 225 Ariz. 27, 37-38 ¶
51, 234 P.3d 595, 605-06 (2010).
admitting a photograph turns on (1) the photograph’s relevance,
(2) its tendency to inflame the jury, and (3) its probative
State v. Anderson (“Anderson II”), 210 Ariz. 327, 339 ¶ 39, 111
P.3d 369, 381 (2005).
Photographs must not be introduced “for
the sole purpose of inflaming the jury,” State v. Gerlaugh, 134
photographs properly will be introduced, State v. Rienhardt, 190
Ariz. 579, 584, 951 P.2d 454, 459 (1997).
“[T]he fact and cause of death are always relevant in
a murder prosecution.”
State v. Chapple, 135 Ariz. 281, 288,
660 P.2d 1208, 1215 (1983).
The photographs here also helped to
corroborate the State’s theory on the timing of the two deaths.
Admission of these exhibits was not an abuse of discretion.
H. Discovery Sanctions against the State
Cota contends that the trial court erred by denying
his motion for mistrial and imposing insufficient sanctions for
State v. Kuhs, 223 Ariz. 376, 380 ¶ 18, 224 P.3d
192, 196 (2010).
1. Relevant Facts
Her report and notes were disclosed before trial and
After Guy left DPS, the State could not initially locate her, so
it notified Cota on March 12, 2009, that it would call Scott
Milne, another DPS analyst, who would conduct new testing.
Jury selection began on April 2.
Milne’s report was
completed on April 3 and a copy provided to defense counsel the
Milne was unable to retest some items consumed by
However, using a relatively new method, Milne
disclosure concerning Milne’s report and notes on April 24.
notes also included one notation of “EDNA.”
On the eve of trial, the State located Guy.
notified Cota that it intended to call both witnesses and on
April 30 defense counsel interviewed Milne and Guy.
On May 11, Cota claimed that the State did not provide
him with all of Milne’s electronic data.
The trial court found
no bad faith, but ordered the State to disclose the data.
State provided Cota with electronic data that afternoon.
Guy testified on May 14 and May 18.
She opined that
the sample from Cota’s shoe contained DNA from Cota and other
identified both victims’ DNA in the sample.
On May 19, Cota filed a motion asking the State to
produce Guy’s electronic data and “the laboratory’s corrective
actions log and extraneous DNA [EDNA] log.”
The trial court
granted the motion.
On June 1, Cota still had not received
Guy’s electronic data.
The court ordered that it be turned over
for use in cross-examining Milne.
The trial court also ordered
Milne to provide additional data.
contained a list of all contaminated samples.
DPS procedure was
On June 8, Cota filed a motion to dismiss for Brady
See Brady v. Maryland, 373 U.S. 83 (1963).
argued that the EDNA log was clearly exculpatory and that he
could not have been expected to know what “EDNA” meant when it
was handwritten on the reports and no other explanation was
The court found that DPS improperly withheld the EDNA
log and certain electronic data.
The court found, however, that
testified about any sample in the EDNA log.
The court allowed
interview Milne before his testimony, interview another person
continuance until June 22 to allow Cota’s experts to review the
alleging that some of Guy’s electronic data was still missing.
The trial court found that some data was missing because it had
been improperly backed up.
It also found that some of Guy’s
struck Guy’s testimony and instructed the jury not to consider
The court, however, denied Cota’s request to preclude
deficiencies in the DPS lab, the court allowed Cota to re-call
Cota cross-examined Milne at length but did not re-call
At Cota’s request, the court instructed the jury that DPS
had a duty to disclose all relevant information to the defense
and ordered the State not to argue that the EDNA log need not
have been disclosed.
2. The trial court’s sanctions
Cota argues that a mistrial should have been granted
or, at the least, Milne’s testimony precluded.
is required only when no less stringent sanction will suffice.
State v. Fisher, 141 Ariz. 227, 246, 686 P.2d 750, 769 (1984).
We apply a four factor test to determine whether preclusion is
appropriate: (1) “how vital the precluded witness is to the
“whether the discovery violation was motivated by bad faith or
willfulness,” and (4) “any other relevant circumstances.”
v. Smith, 123 Ariz. 243, 252, 599 P.2d 199, 208 (1979).
It found Milne’s testimony “extremely relevant and
important to the State’s case” and that there was no bad faith.
It also found that any prejudice to Cota could be cured by
additional disclosure, interviews, and continuances.
access to all relevant information before cross-examining Milne
and identifies no area in which the cross-examination would have
materially differed had he been granted more time.
remedy for a Brady violation.
But many Brady violations are
Here, the trial court had other options and did not abuse its
discretion by using them.
The sanctions imposed sufficiently
protected Cota’s due process rights.
Cf. State v. Jessen, 130
Ariz. 1, 4, 633 P.2d 410, 413 (1981) (finding no reversible
revealed at trial and presented to the jury).
I. Denial of Motion for Judgment of Acquittal
Cota moved under Rule 20 for judgment of acquittal on
the armed robbery and felony murder charges.
Cota argues that
the trial judge erred in denying these motions, contending that
armed robbery and that the felony murder charge, for which armed
robbery was the predicate felony, must also therefore fail.
We review denial of a Rule 20 motion de novo, viewing
State v. West, 226 Ariz. 559, 562 ¶ 15, 250 P.3d 1188,
Acquittal is required “if there is no substantial
evidence to warrant a conviction.”
Ariz. R. Crim. P. 20(a).
Cota argues that the State presented no evidence to
victims’ property and use of force against the victims.
State v. Murray, 184 Ariz. 9, 31, 906 P.2d 542, 564 (1995).
of force may precede the taking of property, but the State must
prove the coexistence of the intent and the use of force in
order to establish armed robbery.
This is not, however, a case in which the evidence
could only be reasonably interpreted as showing that the intent
to steal was formed after the murders.
See State v. Wallace,
151 Ariz. 362, 366, 728 P.2d 232, 236 (1986).
Instead, as in
“[a]ppellant’s financial condition provided the motive for [the]
165 Ariz. 413, 421, 799 P.2d 333, 341 (1990).8
J. Failure to Give Manslaughter Instruction
Cota argues that the trial court erred in refusing a
lesser-included offense instruction on manslaughter.
jury was instructed on second degree murder, which it rejected.
rejected all other lesser-included offenses.”
State v. White,
144 Ariz. 245, 247, 697 P.2d 328, 330 (1985).
manslaughter is not a lesser-included offense of felony murder.
State v. Schad, 163 Ariz. 411, 417, 788 P.2d 1162, 1168 (1989).
K. Victim Impact Statement
State v. Dann, 220 Ariz. 351, 369-70 ¶
101, 207 P.3d 604, 622-23 (2009); Lynn v. Reinstein, 205 Ariz.
186, 190-91 ¶¶ 13-17, 68 P.3d 412, 416-17 (2003).
no compelling reason for us to abandon those holdings.
In any event, the first degree murder convictions were
premised on two theories, felony murder and premeditated murder.
Because the jury expressly found both felony and premeditated
murder on each count, the murder convictions would stand even if
the felony murder verdict were improper.
See Anderson II, 210
Ariz. at 343 ¶ 59, 111 P.3d at 385.
statement from Martinez’s daughter was so inflammatory that the
trial judge should have granted a mistrial.
We review for abuse
State v. Gallardo, 225 Ariz. 560, 567 ¶ 26, 242
P.3d 159, 166 (2010).
“mutilated” and “tortured.”
She said that Cota could still
“share pictures and visitation from his family,” but she could
no longer share anything with her father and Zavala.
statement, at least four members of the jury cried.
instruction, which Cota declined.
A mistrial is required when victim impact testimony is
so “unduly prejudicial that it renders the trial fundamentally
State v. Tucker, 215 Ariz. 298, 320 ¶ 92, 160 P.3d
177, 199 (2007).
The trial is not unfair simply because jurors
were emotional during the statement.
Gallardo, 225 Ariz. at 567
¶ 29, 242 P.3d at 166.
denying a mistrial.
The judge correctly noted that the use of
finding “tortured” more problematic, the court noted that Ms.
Martinez used the word as a lay person and that her use of the
word was not “out of line” given her observation of the two
Finally, the judge noted that Ms. Martinez’s comparison
of her situation to Cota’s was accurate and the jurors already
had that obvious information before the statement.
implicit sentencing recommendation.
similar victim impact testimony, see, e.g., State v. Prince, 226
Ariz. 516, 534-36 ¶¶ 65-76, 250 P.3d 1145, 1163-65 (2011), and
instructed not to be swayed by passion, prejudice, or sympathy,
and that the statements could not be used as aggravation, but
only as rebuttal to mitigation.
See Dann, 220 Ariz. at 369-70
¶¶ 100-101, 207 P.3d at 622-23.
The trial judge offered to give
a further specific limiting instruction, which Cota declined.
voir dire Juror 12 because “several people” said that his eyes
were closed during testimony.
The trial judge noted that he had
watched Juror 12 closely after the allegations were brought to
Although he had seen Juror 12’s eyes closed on
occasion, the judge could tell Juror 12 was not asleep because
he was tapping his foot and moving his wrist.
The judge denied
the request for voir dire and Cota’s subsequent motion for a new
This ruling is reviewed for abuse of discretion.
v. Hall, 204 Ariz. 442, 447 ¶ 16, 65 P.3d 90, 95 (2003).
When a trial court becomes aware of possible juror
misconduct, it should “conduct whatever investigation it deems
State v. Cook, 170 Ariz. 40, 55, 821 P.2d 731, 746
Here, the judge chose personally to observe Juror 12
rather than conduct voir dire.
“‘The conduct of the juror in
open court was a matter of which the trial court had judicial
knowledge and could take judicial notice.’”
United States v.
Curry, 471 F.2d 419, 422 (5th Cir. 1973) (quoting United States
v. Carter, 433 F.2d 874, 876 (10th Cir. 1970)); see also Kuhs,
223 Ariz. at 380 ¶ 18, 224 P.3d at 196 (allowing trial judges to
In light of his personal observations of Juror 12,
the trial judge did not abuse his discretion in declining to
excuse the juror or conduct further investigation.
M. Failure to Instruct Jury that Arizona Law Precluded Cota
From Being Considered for Parole
Cota argues that the trial court erred by instructing
the jury that a life sentence might allow for release after
twenty-five years, because he is not eligible for parole under
parole and release.
Cota would have been eligible for other
forms of release, such as executive clemency, if sentenced to
life with the possibility of release.
State v. Hargrave, 225 Ariz. 1, 15 ¶ 53, 234 P.3d 569, 583
Cota’s “argument that he is not likely to actually be
N. Refusal to Instruct Jury on Presumption that Sentences Run
Cota argues that the trial court erred by refusing to
give his requested instruction that if sentenced to life, the
two sentences for murder would presumptively run consecutively.
We review de novo whether jury instructions “properly state the
State v. Glassel, 211 Ariz. 33, 53 ¶ 74, 116 P.3d 1193,
expressly directs otherwise.”
A.R.S. § 13-711(A).
State v. Garza, 192 Ariz. 171, 174 ¶ 10, 962 P.2d
898, 901 (1998).
Thus, Cota’s proposed instruction was not an
accurate statement of the law.
O. Prosecutorial Misconduct in Closing Argument
Cota contends that the prosecutor improperly argued
“uncharged or unproven aggravating circumstances” and commented
on his invocation of the right to remain silent.
He did not
object to the identified arguments at trial, so we review only
for fundamental error.
State v. Bocharski, 218 Ariz. 476, 491-
92 ¶ 74, 189 P.3d 403, 418-19 (2008).
We find no reversible error.
The prosecutor may argue
the facts and reasonable inferences from the evidence at the
State v. Harrod, 218 Ariz. 268, 278 ¶¶ 34-36,
183 P.3d 519, 529 (2008).
The evidence supported her statements
that Cota “laid in wait” and “viciously” killed Zavala because
after killing Martinez, Cota apparently waited for Zavala to
prosecutor’s statement that Cota intended to “get rid” of her.
committed the murders for money, because the aggravation phase
jury was unable to reach a verdict on the F(5) aggravator.
the prosecutor did not argue in the penalty phase that the jury
should consider pecuniary gain as an aggravator.
was in fair rebuttal of Cota’s argument that the murders may
Moreover, the judge instructed the jury that closing arguments
were not evidence and explained the different functions of the
aggravation and penalty phases.
See Prince, 226 Ariz. at 538 ¶
90, 250 P.3d at 1167.
Nor did the prosecutor improperly comment on Cota’s
right to remain silent.
The prosecutor’s statements to which
Cota objects were fair rebuttal to Cota’s allocution.
the statements at issue simply noted that Cota never expressed
defendant may claim remorse in allocution, but if he does so the
State may rebut that statement.
State v. Armstrong, 218 Ariz.
451, 463 ¶¶ 54-59, 189 P.3d 378, 390 (2008).
sorry and remorseful, wouldn’t he have told the police how sorry
On that 107 minutes of video, what do you see?
He is not admitting.”
This argument can fairly
responsibility in the interrogation with his subsequent claim of
Such comments are permissible.
P. Non-Capital Sentences
The trial judge sentenced Cota to natural life for
The judge used Cota’s prior felony convictions
to both enhance and aggravate these sentences.
He also stated
Cota contends that these sentences were illegal and that
the trial court misapplied Arizona sentencing law by stating
that consecutive sentences were “required.”
1. The use of Cota’s prior felony convictions to both
enhance and aggravate Cota’s sentences
The legislature may authorize trial courts to use the
State v. Bly, 127 Ariz. 370, 373, 621 P.2d 279, 282
“[T]he authorization must be explicit and the specific
factor expressly identified.”
State v. Alvarez, 205 Ariz. 110,
113 ¶ 8, 67 P.3d 706, 709 (App. 2003).
Use of a prior felony
authorized by A.R.S. §§ 13-701(D)(11) and 13-703.
2. The imposition of consecutive sentences
The trial judge stated that “consecutive sentence[s]
Subsection A of that statute reads:
Except as otherwise provided by law, if multiple
sentences of imprisonment are imposed on a person at
the same time, the sentence or sentences imposed by
the court shall run consecutively unless the court
expressly directs otherwise, in which case the court
shall set forth on the record the reason for its
Section 13-708 was renumbered as § 13-711 in 2009.
2008 Ariz. Sess. Laws, ch. 301, § 27 (2d Reg. Sess.). Section
13-711 is identical to former § 13-708.
consecutively and does “‘not constrict to any degree the trial
Garza, 192 Ariz. at 174 ¶ 12, 962 P.2d at
901 (quoting State v. Fillmore, 187 Ariz. 174, 184, 927 P.2d
1303, 1313 (App. 1996)).
Rather, the statute “merely requires
the judge to set forth reasons for imposing concurrent rather
than consecutive sentences and creates a default designation of
consecutive sentences when the judge fails to indicate whether
the sentences are to run concurrently or consecutively.”
175 ¶ 12, 962 P.2d at 902.
The trial court was thus mistaken if it thought that
resentencing because “the judge wrongly felt himself confined by
a non-existent presumption.”
Id. at 175 ¶ 14, 962 P.2d at 902.
discretion to act otherwise, the case should be remanded for
Id. at 176 ¶ 17, 962 P.2d at 903.
judge here imposed one concurrent sentence, we are not convinced
that he was aware of his discretion to do the same with all
We therefore remand for resentencing on the
Q. Issues Raised to Avoid Federal Preclusion
To avoid preclusion, Cota raises twenty-eight issues
that he states have been rejected in decisions by the Supreme
Court of the United States or this Court.
These issues and the
decisions Cota identifies as rejecting them are listed in the
appendix to this opinion.
R. Review of the Death Sentence
Because the murder of Zavala occurred after August 1,
2002, we review the death sentence to “determine whether the
circumstances and imposing a sentence of death.”
A.R.S. § 13-
imposition of a death sentence is not an abuse of discretion if
‘there is any reasonable evidence in the record to sustain it.’”
State v. Delahanty, 226 Ariz. 502, 508 ¶ 36, 250 P.3d 1131, 1137
(2011) (quoting State v. Morris, 215 Ariz. 324, 341 ¶ 77, 160
P.3d 203, 220 (2007)).
1. Proper standard of
A.R.S. § 13-756(A)
Cota argues that the abuse of discretion standard is
“more deferential than . . . the standard ordinarily articulated
and applied by this Court.”
He argues that the proper standard
was announced by this Court in Chapple, 135 Ariz. at 297 n.18,
660 P.2d at 1224 n.18.
We reject this contention; the standard
cited in Delahanty and Morris is now mandated by § 13-756(A),
which was enacted after Chapple.
Cota also argues that the abuse of discretion standard
“meaningful” appellate review of death sentences.
Mississippi, 494 U.S. 738, 749 (1990).
But we have already
determined that abuse of discretion review is constitutional.
State v. Martinez, 218 Ariz. 421, 434 ¶¶ 61-62, 189 P.3d 348,
Meaningful appellate review requires only that an
appellate court “consider whether the evidence is such that the
sentencer could have arrived at the death sentence that was
imposed a death sentence.
Clemons, 494 U.S. at 749.
2. Aggravating Circumstances
The jury found that Cota had been convicted of another
serious offense, A.R.S. § 13-751(F)(2), and committed the murder
while on authorized release, A.R.S. § 13-751(F)(7)(a).
does not contest these findings, which are amply supported by
3. Mitigating Circumstances
jury must determine whether death is the appropriate penalty in
light of any mitigating circumstances proven by the defendant.
A.R.S. § 13-751(C).
Here, Cota presented evidence on a variety
of mitigating factors, including intoxication at the time of the
murders, troubled family history, history of substance abuse,
lack of previous violence, and low risk of future violence in
The State presented evidence to rebut many of these
We overturn the jury’s imposition of a death sentence
substantial to call for leniency.”
81, 160 P.3d at 220.
Morris, 215 Ariz. at 341 ¶
Even if we assume that Cota proved each of
his alleged mitigating factors, the jury still did not abuse its
convictions and death sentence, but remand for resentencing on
the non-capital counts.
Andrew D. Hurwitz, Vice Chief Justice
Rebecca White Berch, Chief Justice
W. Scott Bales, Justice
A. John Pelander, Justice
Robert M. Brutinel, Justice
1. The death penalty is per se cruel and unusual punishment.
Gregg v. Georgia, 428 U.S. 153, 186-87 (1976); State v.
Harrod, 200 Ariz. 309, 320, 26 P.3d 492 (2001).
2. Execution by lethal injection is per se cruel and unusual
punishment. State v. Hinchey, 181 Ariz. 307, 315, 890 P.2d
602, 610 (1995).
unconstitutional because it permits jurors unfettered
discretion to impose death without adequate guidelines to
weigh and consider appropriate factors 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).
4. The statute 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).
5. 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).
6. Arizona’s death statute is unconstitutional because there
are no statutory standards for weighing. State v. Atwood,
171 Ariz. 576, 645-46 n.21(4), 832 P.2d 593, 662-63 n.21(4)
7. The prosecutor’s discretion to seek the death penalty
unconstitutionally lacks standards. State v. Cromwell, 211
Ariz. 181, 192, ¶ 58, 119 P.3d 448, 459 (2005).
8. The Constitution requires a proportionality review of a
defendant’s death sentence.
State v. Gulbrandson, 184
Ariz. 46, 73, 906 P.2d 579, 606 (1995).
9. Appellant’s death sentence is in violation of his rights to
a jury trial, notice and due process the Fifth, Sixth and
Fourteenth Amendments since he was not indicted for a
capital crime. McKaney v. Foreman, 209 Ariz. 268, 271, ¶
13, 100 P.3d 18, 21 (2004).
10. The reasonable doubt jury instruction 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 (Dann I), 205 Ariz. 557, 575-76,
¶ 74, 74 P.3d 231 (2003).
presumption of death and places an unconstitutional burden
substantial to call for leniency.” Walton v. Arizona, 497
U.S. 639, 648 (1990); State v. Glassel, 211 Ariz. 33, 52,
¶72, 116 P.3d 1193, 1212 (2005).
12. 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 (2005).
13. Permitting the State to argue that Appellant’s mitigation
evidence should be given limited or no weight absent proof
of a causal nexus to the murder(s) violates the Eighth and
State v. Anderson (Anderson II),
210 Ariz. 327, 350, ¶¶ 93-97, 82, 111 P.3d 369 (2005).
14. Arizona’s current protocols and procedures for execution by
lethal injection constitute cruel and unusual punishment in
violation of the Eighth and Fourteenth Amendments.
v. Andriano, 215 Ariz. 497, ¶¶ 61-62, 161 P.3d 540 (2007).
15. The jury instruction that required the jury to unanimously
“sufficiently substantial to call for leniency” violated
the Eighth Amendment. State v. Ellison, 213 Ariz. 116, ¶¶
101-102, 140 P.3d 899 (2006).
16. 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.
Bocharski (Bocharski II), 218 Ariz. 476, ¶¶ 47-50, 189 P.3d
17. The State’s introduction of hearsay rebuttal testimony
violated Appellant’s rights to confrontation and cross
examination under the Sixth Amendment.
State v. McGill,
213 Ariz. 147, 158-59, 140 P.3d 930 (2006).
18. The refusal to permit voir dire of prospective jurors
mitigating circumstances violates Appellant’s rights under
the Sixth and Fourteenth Amendments. State v. Johnson, 212
Ariz. 425, 440, ¶¶ 29-35, 133 P.3d 735, 750 (2006).
19. The refusal to permit Appellant to argue or the jury to
consider whether his death sentence would be proportional
to other similarly situated defendants violated his rights
under the Eighth and Fourteenth Amendments.
Johnson, 212 Ariz. 425, 431-32, ¶¶ 19-20, 133 P.3d 735, 750
20. Refusing to instruct the jury or permit the introduction of
evidence and argument regarding residual doubt violated
Appellant‘s rights under the Sixth, Eighth and Fourteenth
Amendments and Arizona law. State v. Harrod (Harrod III),
218 Ariz. 268, ¶¶ 37-39, 183 P.3d 519 (2008); State v.
Garza, 216 Ariz. 56, 70, ¶ 67, 163 P.3d 1006 (2007).
21. The refusal to permit evidence regarding a sentence of life
without parole and ineligibility of any future release
deprived Appellant of his rights under the Eighth and
Fourteenth Amendments. State v. Cruz, 218 Ariz. 149, 15455, ¶¶ 40-45, 181 P.3d 196 (2008).
22. Instructing the jury that Appellant might be eligible for
release after 25 years violates the Fifth, Sixth, Eighth
and Fourteenth Amendments. State v. Hargrave, 225 Ariz. 1,
¶¶ 50-53, 234 P.3d 569 (2010).
23. The failure to instruct the jury that the State bore the
burden of proving its rebuttal to mitigation evidence
beyond a reasonable doubt violated Appellant’s rights under
the Sixth, Eight and Fourteenth Amendments.
Roque, 213 Ariz. 193, 225-26, ¶¶ 138-140, 141 P.3d 368
24. The penalty phase jury instructions that advised the jury
circumstances and forms of verdict impermissibly shifted
the burden of proof to the defendant and created a
presumption of death.
State v. Tucker (Tucker II), 215
Ariz. 298, 317, 160 P.3d 197(2007).
25. Arizona’s death penalty scheme violates Appellant’s right
to equal protection under the Fourteenth Amendment since it
fails to require the jury to make specific findings of fact
and conclusions of law reviewable on appeal. State v. Dann
(Dann III), 220 Ariz. 351, ¶¶ 127-28, 207 P.3d 604 (2009).
26. Arizona’s death penalty scheme violates Appellant’s rights
under the Eighth and Fourteenth Amendments by not requiring
that once a defendant proves mitigating circumstances exist
that the State prove beyond a reasonable doubt that the
mitigation is not sufficiently substantial to call for
leniency and that death is the appropriate sentence. State
v. Dann (Dann III), 220 Ariz. 351, ¶¶ 94-95, 207 P.3d 604
27. The death penalty is an irreversible denial of human rights
and international law. State v. Richmond, 136 Ariz. 312,
322, 666 P.2d 57 (1983).
circumstance under ARS § 13-751(F)(2) violates double
jeopardy under the Fifth and Fourteenth Amendments. State
v. Pandeli (Pandeli III), 215 Ariz. 514, 523, ¶ 16, 161
P.3d 557 (2007).