Justia.com Opinion Summary: 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.
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SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA,
)
)
Appellee, )
)
v.
)
)
BENJAMIN BERNAL COTA,
)
)
Appellant. )
)
)
)
__________________________________)
Arizona Supreme Court
No. CR-09-0218-AP
Maricopa County
Superior Court
Nos. CR2004-006577-001 DT
CR2004-005648-001 DT
(CONSOLIDATED)
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
Phoenix
By
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
By
David Goldberg
Attorney for Benjamin Cota
________________________________________________________________
H U R W I T Z, Vice Chief Justice
¶1
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
this
appeal
under
Article
VI,
Section
5(3)
of
the
Arizona
Constitution and A.R.S. §§ 13-4031 and 13-4033(A)(1) (2011).1
I. FACTS AND PROCEDURAL BACKGROUND2
¶2
Victor Martinez and his wife, Guadalupe Zavala, lived
in Peoria.
In late 2003, they hired Cota to assist with home
repair projects.
Martinez and Zavala had jobs outside their
home and spoke with friends and family daily.
But on December
30, 2003, both disappeared without explanation.
¶3
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
work.
Zavala worked until 8:00 p.m. that night, but was never
heard
from
thereafter.
Concerned
friends,
co-workers,
and
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.
1
We cite the current version of statutes
materially changed since the events at issue.
2
that
have
not
“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
¶4
On
bracelets.
January
3,
2004,
Cota
pawned
two
of
Zavala’s
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.
¶5
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.
They
They found
the bodies of Martinez and Zavala wrapped in plastic in the
master bedroom closet beneath a pile of clothes.
¶6
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
foot.
His wallet contained Zavala’s date of birth and social
security
number,
and
pawn
tickets
dated
January
3.
Police
searched Cota’s mother’s home and found his shoes.
DNA testing
of
from
blood
on
the
shoes
revealed
contributions
Cota,
Martinez, and Zavala.
¶7
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.
The
indictments were joined for trial, and a jury found Cota guilty
3
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).
¶8
In
the
penalty
phase,
the
jury
returned
a
death
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.
II.
ISSUES ON APPEAL
A. Consolidation of Cases and Flight Evidence
¶9
Cota argues that the trial court erred by admitting
evidence of his flight from the police and by joining the two
indictments for trial.
joinder.
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.
¶10
Before joining the indictments, the trial court had
granted the State’s motion to admit evidence of Cota’s flight in
the
murder
consolidated,
case.
defense
When
counsel
the
indictments
preserved
an
were
objection
formally
to
the
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
4
is whether the flight evidence was properly admitted.
for abuse of discretion.
We review
State v. Bible, 175 Ariz. 549, 592,
858 P.2d 1152, 1195 (1993).
¶11
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
between
the
murders
inadmissible.
and
his
Remoteness
flight
of
rendered
flight
in
the
evidence
relation
to
the
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
was committed).
¶12
Cota
also
contends
that
the
flight
evidence
was
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.”
592,
858
P.2d
inference
that
Defendant
crime.”
Id.
serious
at
1195.
The
was
The
Bible, 175 Ariz. at
circumstances
here
“justify
fleeing
some
other,
trial
5
from
court
did
not
abuse
an
more
its
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
¶13
A.R.S.
§
21-202(B)(3)
requires
dismissal
of
prospective jurors “not currently capable of understanding the
English language.”
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.
is unconstitutional.
novo.
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,
1047 (2008).
¶14
a
“[T]he American concept of the jury trial contemplates
jury
drawn
from
a
fair
cross
section
of
the
Taylor v. Louisiana, 419 U.S. 522, 527 (1975).
community.”
A defendant
alleging a fair cross-section violation of the Sixth Amendment
must show
(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
3
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).
6
due to systematic exclusion of the group in the juryselection process.
Duren v. Missouri, 439 U.S. 357, 364 (1979).
The Constitution
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.”
¶15
Cota
citizens”
are
contends
a
that
“distinctive
Id. at 367-68.
“non-English
group.”
speaking
Section
Hispanic
21-202(B)(3),
however, excuses all prospective jurors “not currently capable
of
understanding
the
English
language,”
not
just
Hispanics.
“Non-English speakers” are not a “distinctive group” for Sixth
Amendment purposes.
39-40 (Or. 2010);
See, e.g., State v. Haugen, 243 P.3d 31,
Commonwealth v. Acen, 487 N.E.2d 189, 194
(Mass. 1986).
¶16
interest.
Moreover,
the
statute
serves
a
significant
state
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.
compelling.4
See
State
v.
Gibbs,
Cordova,
This state interest remains
758
A.2d
327,
341
(Conn.
2000).5
4
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
7
C. Dismissal of Juror 46
¶17
Given Cota’s drug addiction and widespread drug use
among his friends and family, testimony at the guilt and penalty
phases
focused
on
substance
abuse.
Questions
regarding
addiction were therefore included in the juror questionnaire.
¶18
Juror 46 disclosed that two of her brothers had died
of heroin overdoses.
aside
her
When the prosecutor asked if she could set
experiences
and
responded, “Honestly, no.
about it.”
consider
the
evidence
fairly,
she
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.
¶19
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”
class.
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
issue here.
5
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.
See
Castaneda v. Partida, 430 U.S. 482, 494 (1977).
Cota’s
Fourteenth Amendment claim fails for the same reasons as his
Sixth Amendment claim.
8
rehabilitate her.
We review for abuse of discretion.
State v.
Lavers, 168 Ariz. 376, 390, 814 P.2d 333, 347 (1991).
¶20
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).
The record
supports the trial court’s dismissal of this juror.
The record
also demonstrates that, before the trial judge excused Juror 46,
defense counsel had a fair opportunity to examine her.
See
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
¶21
Police arrested Cota on January 6, 2004, at about 5:30
p.m.
Cota later told police that he had used drugs in the hour
before
began
being
arrested.
interrogating
Cota
Peoria
at
Detectives
approximately
Laing
9:20
and
Hickman
p.m.
After
approximately two hours, Cota invoked his right to counsel and
the
interrogation
ended.
During
the
interrogation,
Cota
appeared to fall asleep a few times.
6
Cota also argues that excusing Juror 46 violates the rule
of Witherspoon v. Illinois, 391 U.S. 510 (1968).
Under that
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.
9
¶22
his
Cota contends that the trial court erred by admitting
videotaped
interrogation
because
(1)
his
statements
were
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.
In the
superior court, however, Cota objected to the introduction of
the interrogation only on voluntariness grounds.
trial
court’s
voluntariness
finding
for
abuse
We review the
of
discretion.
State v. Clabourne, 142 Ariz. 335, 342, 690 P.2d 54, 61 (1984).
We review the Miranda claim only for fundamental error.
See
State v. Henderson, 210 Ariz. 561, 567 ¶¶ 19-20, 115 P.3d 601,
607 (2005).
1. Intoxication
¶23
The
trial
court
found
after an evidentiary hearing.
the
“voluntary
nature
of
a
Cota’s
statements
voluntary
We uphold factual findings as to
confession
if
supported by adequate evidence in the record.”
the
findings
are
State v. Rhymes,
129 Ariz. 56, 57-58, 628 P.2d 939, 940-41 (1981).
¶24
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).
10
“We look[] to the
totality of the circumstances to determine whether the accused
was able to reason, comprehend, or resist.”
¶25
Our
review
of
the
videotape
Id.
of
the
interrogation
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
¶26
After
being
advised
of
his
rights,
“[i]f
the
individual indicates in any manner, at any time prior to or
during
questioning,
that
interrogation must cease.”
473-74 (1966).
not
be
made
he
wishes
to
remain
silent,
the
Miranda v. Arizona, 384 U.S. 436,
Invocation of the right to remain silent need
with
precision.
See,
e.g.,
United
States
v.
Ramirez, 79 F.3d 298, 304 (2d Cir. 1996) (“A suspect need not
rely on talismanic phrases or any special combination of words
to
invoke
However,
his
the
Thompkins,
Fifth
invocation
130
perspective
Amendment
of
circumstances,”
S.
Ct.
a
Davis
must
2250,
right
be
2260
“reasonable
v.
United
to
remain
unambiguous,
(2010),
police
States,
Berghuis
judged
officer
512
silent.”).
U.S.
v.
from
the
in
the
452,
459
(1994).
¶27
Cota cites two alleged invocations of the right to
remain silent during the interrogation.
turn.
11
We examine each in
i. The Page 24 Statement
¶28
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.
¶29
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
¶30
The second alleged invocation occurs at page 40 (the
“Page 40 Statement”):
12
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.
¶31
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
responding
to
clothing,
not
but
to
a
a
specific
very
question
general
about
question:
blood
“What
on
his
happened?”
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.
¶32
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.
13
JONES: No
something—
you're
not
'cause
everytime
we
ask
you
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
¶33
To
warrant
fundamental error.
reversal,
however,
Cota
must
show
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.
fundamental
error
occurred
here
in
admission
of
No
the
interrogation after page 40 because the continued questioning
did not prejudice Cota at any phase of the trial.
¶34
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
14
after
page
40
was
from
a
protestations of innocence.
lack
of
credibility
in
his
However, virtually all of Cota’s
statements after page 40 mirrored others made earlier in the
interrogation.
¶35
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.”
on
this
point
was
properly
admitted
at
But other evidence
trial.
Cota’s
drug
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
¶36
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
personality
experts.
inventory,
or,
alternatively,
to
Cota’s
Cota did not object to the examination, but objected
to testing because his experts had done none.
overruled
preclude
the
objection;
we
review
for
abuse
The trial court
of
discretion.
State v. Newell, 212 Ariz. 389, 404-05 ¶ 78, 132 P.3d 833, 84849 (2006).
¶37
A defendant offering expert mental health testimony
must either submit to a state examination or forego introducing
his evidence.
State v. Schackart, 175 Ariz. 494, 500-01, 858
15
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.
meaningful
opportunity
testimony.”
Rather, the State is entitled to “a
to
rebut
the
defendant’s
expert
Phillips, 208 Ariz. at 283 ¶ 9, 93 P.3d at 483.
Here, the State’s expert testified that mental health experts
commonly
use
the
MMPI,
which
contains
a
validity
scale
potentially helpful in evaluating the diagnoses made by Cota’s
experts.
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
¶38
Cota contends that the trial court erred by dismissing
Juror 2 and designating Jurors 5, 9, and 13 as alternates.
He
also
to
claims
that
the
court
erred
by
allowing
Juror
10
deliberate in the penalty phase after not deliberating in the
guilt and aggravation phases.7
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
16
1. Juror 2
¶39
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.”
submitted
Later
a
that
century.”
clarifying
day,
the
question,
prosecutor
the
After Juror 2
matter
stressed
was
the
clarified.
term
“half
a
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.
The
trial
Questioning by the court confirmed that
The next day, the State moved to strike Juror 2.
court
granted
the
State’s
motion
over
Cota’s
objection, citing the juror’s statements to the bailiff, her
claim to be “offended,” and the fact that she missed testimony.
¶40
to
A trial court’s findings regarding a juror’s ability
be
fair
and
impartial
and
its
reviewed for abuse of discretion.
dismissal
of
a
juror
are
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).
Ariz. R.
The “reasonable ground” may arise during
phases. Cota, however, does not raise a similar argument as to
Juror 9.
17
trial.
Trostle, 191 Ariz. at 13, 951 P.2d at 878.
The record
here supports the trial judge’s decision.
2. Juror 10
¶41
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);
Garcia, 224
Ariz. at 17 ¶ 71, 226 P.3d at 386.
¶42
Cota
argues
that
these
cases
are
distinguishable
because the trial court here did not voir dire Juror 10 to see
if
she
accepted
the
previous
verdicts.
But
this
is
not
required; the juror must simply be aware of her role in the
penalty phase.
Garcia, 224 Ariz. at 17 ¶¶ 70-71, 226 P.3d at
386.
it
Although
may
be
advisable
for
the
trial
court
to
discuss this role with the juror individually, such discussion
is not necessary where the entire jury is instructed properly,
as it was here.
Id.
3. Jurors 5, 9, and 13
¶43
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
18
begin.
Jurors 5 and 13 both had already paid for tickets to
leave town when the penalty phase began.
trial
judge
designated
the
jurors
On each occasion, the
as
alternates
instead
of
releasing them or continuing the trial.
¶44
Alternates are supposed to be selected by lot by the
clerk.
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
of
the
trial,
and
therefore
cannot
demonstrate
prejudice.
Blackhoop, 162 Ariz. at 122, 781 P.2d at 600.
G. Admission of Autopsy Photographs
¶45
The
trial
Cota’s objection.
condition
autopsies.
the
court
admitted
autopsy
photographs
over
The photographs depict both victims in the
medical
examiner
received
them
and
during
the
The trial court admitted three photographs only in
black and white to minimize any “gruesome effect.”
for abuse of discretion.
We review
State v. Lynch, 225 Ariz. 27, 37-38 ¶
51, 234 P.3d 595, 605-06 (2010).
¶46
Whether
the
trial
court
abused
its
discretion
in
admitting a photograph turns on (1) the photograph’s relevance,
(2) its tendency to inflame the jury, and (3) its probative
19
value
compared
to
its
potential
to
cause
unfair
prejudice.
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
Ariz.
164,
nothing
169,
654
sanitary
P.2d
about
800,
805
murder”
(1982),
and
but
“[t]here
sometimes
is
gruesome
photographs properly will be introduced, State v. Rienhardt, 190
Ariz. 579, 584, 951 P.2d 454, 459 (1997).
¶47
“[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
¶48
Cota contends that the trial court erred by denying
his motion for mistrial and imposing insufficient sanctions for
discovery
violations
discretion.
by
the
State.
We
review
for
abuse
of
State v. Kuhs, 223 Ariz. 376, 380 ¶ 18, 224 P.3d
192, 196 (2010).
1. Relevant Facts
¶49
testing.
included
Shannin
Guy
of
the
DPS
crime
lab
performed
DNA
Her report and notes were disclosed before trial and
the
hand-written
acronym
“EDNA”
in
three
locations.
After Guy left DPS, the State could not initially locate her, so
20
it notified Cota on March 12, 2009, that it would call Scott
Milne, another DPS analyst, who would conduct new testing.
¶50
Jury selection began on April 2.
Milne’s report was
completed on April 3 and a copy provided to defense counsel the
next day.
Milne was unable to retest some items consumed by
Guy’s testing.
tested
items
including
However, using a relatively new method, Milne
on
Cota’s
which
tennis
previous
shoe.
tests
The
were
State
inconclusive,
made
additional
disclosure concerning Milne’s report and notes on April 24.
His
notes also included one notation of “EDNA.”
¶51
On the eve of trial, the State located Guy.
The State
notified Cota that it intended to call both witnesses and on
April 30 defense counsel interviewed Milne and Guy.
¶52
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.
The
State provided Cota with electronic data that afternoon.
¶53
Guy testified on May 14 and May 18.
She opined that
the sample from Cota’s shoe contained DNA from Cota and other
“unknown”
contributors.
Milne
later
testified
that
he
had
identified both victims’ DNA in the sample.
¶54
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.”
21
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.
¶55
The
EDNA
log
had
been
disclosed
on
May
21,
and
contained a list of all contaminated samples.
DPS procedure was
not
was
to
disclose
requested.
the
EDNA
log
unless
it
specifically
On June 8, Cota filed a motion to dismiss for Brady
violations.
See Brady v. Maryland, 373 U.S. 83 (1963).
Cota
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
given.
¶56
The court found that DPS improperly withheld the EDNA
log and certain electronic data.
any
prejudice
preclusion
of
to
Cota
all
DNA
could
be
evidence.
The court found, however, that
cured
without
Neither
testified about any sample in the EDNA log.
Cota
to
re-call
Guy
for
additional
Guy
a
mistrial
nor
Milne
or
had
The court allowed
cross-examination,
re-
interview Milne before his testimony, interview another person
at
the
lab,
and
tour
the
lab.
The
court
also
granted
a
continuance until June 22 to allow Cota’s experts to review the
materials.
22
¶57
On
June
22,
Cota
filed
another
motion
to
dismiss,
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.
files
were
either
It also found that some of Guy’s
destroyed
or
not
retrievable.
The
court
struck Guy’s testimony and instructed the jury not to consider
it.
¶58
The court, however, denied Cota’s request to preclude
Milne’s
testimony.
testimony
deprived
After
him
Cota
of
argued
the
that
ability
striking
to
Guy’s
demonstrate
deficiencies in the DPS lab, the court allowed Cota to re-call
her.
Cota cross-examined Milne at length but did not re-call
Guy.
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
¶59
Cota argues that a mistrial should have been granted
or, at the least, Milne’s testimony precluded.
But preclusion
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
proponent’s
case,”
(2)
“whether
23
the
opposing
party
will
be
surprised
and
prejudiced
by
the
witness’
testimony,”
(3)
“whether the discovery violation was motivated by bad faith or
willfulness,” and (4) “any other relevant circumstances.”
State
v. Smith, 123 Ariz. 243, 252, 599 P.2d 199, 208 (1979).
¶60
The
factors.
trial
court
appropriately
considered
these
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.
Cota had
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.
¶61
Cota
argues
that
a
new
remedy for a Brady violation.
discovered
after
trial,
when
trial
is
“ordinarily”
the
But many Brady violations are
no
other
remedy
could
suffice.
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
error
when
previously
undisclosed
exculpatory
information
is
revealed at trial and presented to the jury).
I. Denial of Motion for Judgment of Acquittal
¶62
Cota moved under Rule 20 for judgment of acquittal on
the armed robbery and felony murder charges.
24
Cota argues that
the trial judge erred in denying these motions, contending that
the
evidence
was
insufficient
to
support
the
conviction
for
armed robbery and that the felony murder charge, for which armed
robbery was the predicate felony, must also therefore fail.
¶63
the
We review denial of a Rule 20 motion de novo, viewing
evidence
ruling.
in
the
light
most
favorable
to
upholding
the
State v. West, 226 Ariz. 559, 562 ¶ 15, 250 P.3d 1188,
1191 (2011).
Acquittal is required “if there is no substantial
evidence to warrant a conviction.”
¶64
Ariz. R. Crim. P. 20(a).
Cota argues that the State presented no evidence to
establish
the
necessary
concurrence
of
intent
to
take
the
victims’ property and use of force against the victims.
See
State v. Murray, 184 Ariz. 9, 31, 906 P.2d 542, 564 (1995).
Use
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.
¶65
Id.
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).
State
v.
Comer,
substantial
evidence
25
was
Instead, as in
introduced
that
“[a]ppellant’s financial condition provided the motive for [the]
165 Ariz. 413, 421, 799 P.2d 333, 341 (1990).8
killing.”
J. Failure to Give Manslaughter Instruction
¶66
Cota argues that the trial court erred in refusing a
lesser-included offense instruction on manslaughter.
But the
jury was instructed on second degree murder, which it rejected.
By
rejecting
that
lesser-included
offense,
it
rejected all other lesser-included offenses.”
State v. White,
144 Ariz. 245, 247, 697 P.2d 328, 330 (1985).
was
convicted
of
both
premeditated
and
“necessarily
Moreover, Cota
felony
murder,
and
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
¶67
Cota
authorizes
contends
victim
unconstitutional.
that
impact
We
752(R) constitutional.
A.R.S.
statements
have,
however,
§
in
13-752(R),
capital
previously
which
cases,
found
§
is
13-
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).
Cota presents
no compelling reason for us to abandon those holdings.
8
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.
26
¶68
In
the
alternative,
Cota
argues
that
the
impact
statement from Martinez’s daughter was so inflammatory that the
trial judge should have granted a mistrial.
of discretion.
We review for abuse
State v. Gallardo, 225 Ariz. 560, 567 ¶ 26, 242
P.3d 159, 166 (2010).
¶69
Martinez’s
daughter
“mutilated” and “tortured.”
characterized
the
bodies
as
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.
During her
statement, at least four members of the jury cried.
The court
denied
Cota’s
motion
for
mistrial
and
offered
a
curative
instruction, which Cota declined.
¶70
A mistrial is required when victim impact testimony is
so “unduly prejudicial that it renders the trial fundamentally
unfair.”
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.
¶71
The
trial
denying a mistrial.
the
word
“mutilated”
judge
did
not
abuse
his
discretion
in
The judge correctly noted that the use of
was
supported
by
the
evidence.
While
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
27
bodies.
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.
properly
rejected
the
argument
that
the
The judge
statement
was
an
implicit sentencing recommendation.
¶72
We
have
upheld
death
sentences
in
cases
involving
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
find
no
reversible
error
here.
The
jurors
were
properly
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.
L. Trial
Juror
¶73
Court’s
During
Failure
the
penalty
to
Investigate
phase,
Allegedly
defense
counsel
Sleeping
asked
to
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
his attention.
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
28
trial.
This ruling is reviewed for abuse of discretion.
State
v. Hall, 204 Ariz. 442, 447 ¶ 16, 65 P.3d 90, 95 (2003).
¶74
When a trial court becomes aware of possible juror
misconduct, it should “conduct whatever investigation it deems
warranted.”
(1991).
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
rely
on
their
decisions).
observations
of
courtroom
behavior
in
making
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
¶75
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
A.R.S.
§
41-1604.09(I).
parole and release.
This
argument,
however,
conflates
Cota would have been eligible for other
29
forms of release, such as executive clemency, if sentenced to
life with the possibility of release.
¶76
The
instruction
given
accurately
stated
the
law.
State v. Hargrave, 225 Ariz. 1, 15 ¶ 53, 234 P.3d 569, 583
(2010).
Cota’s “argument that he is not likely to actually be
released
does
not
render
the
instruction
legally
incorrect.”
Id.
N. Refusal to Instruct Jury on Presumption that Sentences Run
Consecutively
¶77
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
law.”
State v. Glassel, 211 Ariz. 33, 53 ¶ 74, 116 P.3d 1193,
1213 (2005).
¶78
Sentences
“run
consecutively
expressly directs otherwise.”
statute
creates
sentences.
no
unless
A.R.S. § 13-711(A).
presumption
in
favor
of
the
court
But this
consecutive
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
¶79
Cota contends that the prosecutor improperly argued
“uncharged or unproven aggravating circumstances” and commented
30
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).
¶80
We find no reversible error.
The prosecutor may argue
the facts and reasonable inferences from the evidence at the
penalty phase.
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
return
from
work.
characterization
Substantial
of
Zavala’s
evidence
murder
also
as
supported
vicious
and
the
the
prosecutor’s statement that Cota intended to “get rid” of her.
None
of
these
statements
encouraged
the
jury
to
consider
unproven aggravators.
¶81
Slightly
more
troubling
is
the
statement
that
Cota
committed the murders for money, because the aggravation phase
jury was unable to reach a verdict on the F(5) aggravator.
But
the prosecutor did not argue in the penalty phase that the jury
should consider pecuniary gain as an aggravator.
The statement
was in fair rebuttal of Cota’s argument that the murders may
have
been
committed
in
a
methamphetamine-induced
rage.
Moreover, the judge instructed the jury that closing arguments
were not evidence and explained the different functions of the
31
aggravation and penalty phases.
See Prince, 226 Ariz. at 538 ¶
90, 250 P.3d at 1167.
¶82
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.
Most of
the statements at issue simply noted that Cota never expressed
remorse
for
committing
the
crime
during
the
allocution.
A
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).
¶83
The
prosecutor
also
said
that
if
Cota
“were
truly
sorry and remorseful, wouldn’t he have told the police how sorry
he was?
On that 107 minutes of video, what do you see?
combative man.
be
read,
He is not admitting.”
however,
as
Angry,
This argument can fairly
contrasting
Cota’s
denials
of
responsibility in the interrogation with his subsequent claim of
remorse.
Such comments are permissible.
Id.
P. Non-Capital Sentences
¶84
The trial judge sentenced Cota to natural life for
Martinez’s
count,
murder,
twelve
twenty-eight
years
unlawful flight.
for
drug
years
for
possession,
each
and
he
believed
six
robbery
years
for
The judge used Cota’s prior felony convictions
to both enhance and aggravate these sentences.
that
armed
Arizona
law
32
“required”
him
He also stated
to
make
the
sentences
count.
consecutive,
and
he
did
so
on
all
but
the
flight
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
¶85
same
The legislature may authorize trial courts to use the
circumstance
sentence.
(1980).
for
both
aggravation
and
enhancement
of
a
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).
conviction
for
aggravation
and
Use of a prior felony
enhancement
is
expressly
authorized by A.R.S. §§ 13-701(D)(11) and 13-703.
2. The imposition of consecutive sentences
¶86
are
The trial judge stated that “consecutive sentence[s]
required
by
Arizona
law
pursuant
to
A.R.S.
13-708.”9
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
sentence.
9
Section 13-708 was renumbered as § 13-711 in 2009.
See
2008 Ariz. Sess. Laws, ch. 301, § 27 (2d Reg. Sess.). Section
13-711 is identical to former § 13-708.
33
¶87
That
section
does
not
require
that
sentences
run
consecutively and does “‘not constrict to any degree the trial
court’s
discretion
to
defendant’s crimes.’”
impose
[concurrent]
sentences
for
the
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.”
Id. at
175 ¶ 12, 962 P.2d at 902.
¶88
The trial court was thus mistaken if it thought that
consecutive
sentences
were
required.
Garza
remanded
for
resentencing because “the judge wrongly felt himself confined by
a non-existent presumption.”
“[I]f
the
record
is
unclear
Id. at 175 ¶ 14, 962 P.2d at 902.
whether
the
judge
knew
he
had
discretion to act otherwise, the case should be remanded for
resentencing.”
Id. at 176 ¶ 17, 962 P.2d at 903.
Although the
judge here imposed one concurrent sentence, we are not convinced
that he was aware of his discretion to do the same with all
other sentences.
We therefore remand for resentencing on the
non-capital counts.
34
Q. Issues Raised to Avoid Federal Preclusion
¶89
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
¶90
Because the murder of Zavala occurred after August 1,
2002, we review the death sentence to “determine whether the
trier
of
fact
abused
its
discretion
in
finding
circumstances and imposing a sentence of death.”
756(A).
“A
finding
of
aggravating
aggravating
A.R.S. § 13-
circumstances
or
the
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)
¶91
review
and
constitutionality
of
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
35
cited in Delahanty and Morris is now mandated by § 13-756(A),
which was enacted after Chapple.
¶92
is
Cota also argues that the abuse of discretion standard
unconstitutional
because
the
Supreme
Court
has
“meaningful” appellate review of death sentences.
Mississippi, 494 U.S. 738, 749 (1990).
mandated
Clemons v.
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,
361 (2008).
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,”
not
whether
the
imposed a death sentence.
appellate
court
itself
would
have
Clemons, 494 U.S. at 749.
2. Aggravating Circumstances
¶93
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).
Cota
does not contest these findings, which are amply supported by
the evidence.
3. Mitigating Circumstances
¶94
If
an
aggravating
circumstance
is
established,
the
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
36
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
prison.
The State presented evidence to rebut many of these
mitigating factors.
¶95
only
We overturn the jury’s imposition of a death sentence
if
no
mitigation
“reasonable
established
jury
by
the
could
defendant
substantial to call for leniency.”
81, 160 P.3d at 220.
have
concluded
was
not
that
the
sufficiently
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
discretion
here
by
finding
the
mitigation
insufficient
to
warrant leniency.
III. CONCLUSION
¶96
For
the
foregoing
reasons,
we
affirm
Cota’s
convictions and death sentence, but remand for resentencing on
the non-capital counts.
_____________________________________
Andrew D. Hurwitz, Vice Chief Justice
CONCURRING:
_____________________________________
Rebecca White Berch, Chief Justice
37
_____________________________________
W. Scott Bales, Justice
_____________________________________
A. John Pelander, Justice
_____________________________________
Robert M. Brutinel, Justice
38
APPENDIX
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).
3. Arizona’s
death
penalty
statutory
scheme
is
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)
(1992).
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
39
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).
11. 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.” 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
Fourteenth Amendments.
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.
State
v. Andriano, 215 Ariz. 497, ¶¶ 61-62, 161 P.3d 540 (2007).
15. 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. 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.
State v.
Bocharski (Bocharski II), 218 Ariz. 476, ¶¶ 47-50, 189 P.3d
403 (2008).
17. The State’s introduction of hearsay rebuttal testimony
violated Appellant’s rights to confrontation and cross
40
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
regarding
their
views
on
specific
aggravating
and
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.
State v.
Johnson, 212 Ariz. 425, 431-32, ¶¶ 19-20, 133 P.3d 735, 750
(2006).
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.
State v.
Roque, 213 Ariz. 193, 225-26, ¶¶ 138-140, 141 P.3d 368
(2006).
24. The penalty phase jury instructions that advised the jury
they
“must”
return
a
death
sentence
in
various
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).
41
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
(2009).
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).
28. The
use
of
Appellant’s
conviction
that
occurred
contemporaneous
with
the
murder
as
an
aggravating
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).
42
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