State v. Fraijo

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) ) ) ) ) ) ) ) ) Appellee, v. MANUEL MYER FRAIJO, Appellant. 1 CA-CR 09-0272 DIVISION ONE FILED: 05-27-2010 PHILIP G. URRY,CLERK BY: GH DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yavapai County Cause No. P-1300-CR-002006-1517 The Honorable Ralph M. Hess, Judge AFFIRMED AS MODIFIED Terry Goddard, Arizona Attorney General By Kent E. Cattani, Chief Counsel Craig Soland, Assistant Attorney General Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix DeRienzo & Williams, P.L.L.C. By Craig Williams Attorneys for Appellant Prescott D O W N I E, Judge ¶1 sentences. Manuel For Myer Fraijo the following appeals reasons, his convictions we convictions and his sentence for armed robbery. affirm and Fraijo's We modify his sentence on the murder convictions to one term of imprisonment for natural life. FACTUAL AND PROCEDURAL HISTORY ¶2 We construe the evidence in the light most favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant. State v. Greene, 192 Ariz. 431, 436-37, ¶ 12, 967 P.2d 106, 111-12 (1998) (citation omitted). We do not, however, weigh the evidence; that is the function of the jury. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). ¶3 On the night in question, the victim left his home after an argument with his wife. and went to a nearby bar. bills. He took $3000 from their safe Most of the money consisted of $100 The victim paid for his first drink with a $100 bill and left the change on the bar. The bartender took money from the change as the victim continued to buy drinks for himself and others. ¶4 Fraijo ( Codefendant ) and used Codefendant appeared stayed man arrived Codefendant generally a a later at the together know 2 later codefendant victim, other. evening, Fraijo bought drinks for each other. drinks with a second $100 bill. a The each that as bar wheelchair. to charged and that night. Fraijo, and The three men the victim and The victim later paid for At one point, the three men left the bar. While the victim apparently never went back inside, the bartender gave Fraijo approximately $80 in change that belonged to the victim after Fraijo re-entered the bar and said the three men were leaving. Fraijo and Codefendant were seen exiting the bar shortly before 2:00 a.m. ¶5 The next morning, the victim's body was found in the parking lot behind the bar. He had bled to death after sustaining forty-three cutting injuries, stabbing and incised wounds to his chest, neck, torso, forehead, scalp, hands and forearms. Nineteen of the wounds were described as defensive. Two $100 bills were found near the victim's body. The cushion from Codefendant's wheelchair was found near the victim. ¶6 Sometime after leaving the bar that night, Fraijo and Codefendant went to another person s home. Fraijo described to those present how he had stabbed someone that night and how the person made gurgling sounds after he stabbed them in the neck. $100 bills were placed on a blanket on the floor of the garage of the residence. them. Fraijo handed some of the bills to other people in the garage. more Many of the bills appeared to have blood on Fraijo's vehicle was moved into the garage; a knife and $100 bills were removed. Fraijo drove with others to another location, where they discarded the knife. ¶7 Fraijo later drove to the home of Codefendant's girlfriend, where he attempted to remove blood from the interior 3 of his vehicle. Fraijo told Codefendant's girlfriend he had stabbed someone at the bar that night and had injured his hand. Fraijo also told her the victim had approximately $1500. Fraijo later checked into a motel and paid with a $100 bill. ¶8 Fraijo recovered. The was arrested at the motel. The knife was Six $100 bills were located in Fraijo's vehicle. victim's blood was found on the knife and in Fraijo's vehicle. ¶9 Fraijo was charged with first degree murder and armed robbery. The State alleged theories of premeditated murder and felony murder in separate counts. penalty. Codefendant was The State sought the death charged with theft and hindering prosecution; he ultimately pled guilty to hindering prosecution. ¶10 The jury found Fraijo guilty of premeditated murder, felony murder, and armed robbery after an eleven-day jury trial. 1 After an additional six-day aggravation and penalty phase, the jury determined Fraijo should not be sentenced to death, but should receive life imprisonment. Fraijo to imprisonment murder and robbery. an for aggravated The trial court sentenced natural term of life for twenty-one both years counts for of armed The sentences were ordered to run concurrently. 1 Fraijo does not contest the sufficiency of the evidence to support his convictions. 4 ¶11 to Fraijo timely appealed. Arizona Constitution, We have jurisdiction pursuant Article 6, Section 9, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(2003), 13-4031 (2010) and 13-4033 (2010). 2 1. ¶12 The Trial Court's Consideration of Sentencing Factors Fraijo contends the trial court erred by considering aggravating factors beyond his prior convictions in deciding whether to impose natural life or life with a possibility of parole. 3 He argues that considering aggravating factors not found by the jury violated Blakely v. Washington, in which the Supreme Court held, Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. 542 U.S. 296, 301 (2004) (quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). 4 ¶13 The factors: property trial court significant taken; found criminal emotional harm 2 the following history; to the the aggravating value victim's of the family; the We cite to the current version of statutes when no revisions material to this decision have occurred. 3 Because Fraijo presents this issue solely in the context of the sentences for murder, we do not address the sentence imposed for armed robbery. 4 Fraijo does not contest the existence or use of his prior felony convictions. The existence of prior convictions may be determined by the trial court and need not be submitted to the jury. Apprendi, 530 U.S. at 490; Blakely, 542 U.S. at 301. 5 presence of an background, accomplice; which and character and he demonstrated Fraijo s incapable of was rehabilitation. The sole aggravating factor found by the jury was was that Fraijo convicted preparatory or completed. of a serious offense, either However, this finding was made as part of the jury's determination of whether to impose death. See A.R.S. § 13-703(F)(2)(2006)(one factor to be considered in determining whether to impose death is whether the defendant has been or was previously convicted of a serious offense, whether preparatory or completed). The trial court did not identify this factor as one it considered in imposing natural life. ¶14 We find no error. First, a sentence of natural life for first degree murder is not an aggravated sentence. A trial court may impose a sentence of natural life for first-degree murder based verdict. 594, solely on the facts reflected in the jury s State v. Fell, 210 Ariz. 554, 557-58, ¶ 11, 115 P.3d 597-98 (2005). There is no requirement that any aggravating circumstances be found before natural life may be imposed. Id. at 560, ¶ 19, 115 P.3d at 600. When consideration of aggravating factors does not result in a sentence greater than that which the court was entitled to impose based on the facts reflected in the sentence jury verdict imposed not admitted violate by the the defendant, the Amendment. State v. Miranda-Cabrera, 209 Ariz. 220, 227, ¶ 32, 6 does or Sixth 99 P.3d 35, 42 (App. 2004) (quoting Blakely, 542 U.S. at 303). Therefore, Blakely is inapplicable. ¶15 Second, factors must even exist assuming before a arguendo sentence appropriate, there would be no error. of that aggravating natural life is Once a single aggravating factor has been properly established, a sentencing court may find and consider additional aggravating factors. State v. Martinez, 210 Ariz. 578, 585, ¶ 26, 115 P.3d 618, 625 (2005). Because Fraijo s prior convictions were established, the trial court could find and consider additional factors without requiring the jury to determine their existence. ¶16 As part of his argument on this issue, Fraijo makes several additional claims, none of which were raised below. A failure to raise an issue at trial waives all but fundamental error. (1991). State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627 To establish fundamental error, [a defendant] must show that the error complained of goes to the foundation of his case, takes away a right that is essential to his defense, and is of such magnitude that he could not have received a fair trial. State v. Henderson, 210 Ariz. 561, 568, ¶ 24, 115 P.3d 601, 608 (2005). Even if fundamental error is established, a defendant must also demonstrate that the error was prejudicial. Id. at ¶ 26. 7 ¶17 Fraijo argues the trial court failed consider each mitigating factor submitted. the court was possibility of required parole to sentence after to properly He further contends him twenty-five to life years with because a the mitigating factors outweighed the aggravating factors. ¶18 We find no error, fundamental or otherwise. First, as noted above, the trial court could impose a sentence of natural life regardless of any mitigating or aggravating factors. Second, a court need not find mitigating factors simply because evidence is presented, but is only required to consider them. State v. Jenkins, 193 Ariz. 115, 121, ¶ 25, 970 P.2d 947, 953 (App. 1998) (citation omitted). The record reflects that the trial court considered the mitigating factors submitted. trial court has the mitigating factors. discretion to weigh aggravating abuse its and State v. Harvey, 193 Ariz. 472, 477, ¶ 24, 974 P.2d 451, 456 (App. 1998) (citation omitted). not The discretion in concluding that The court did the information presented warranted a sentence of natural life. ¶19 the Fraijo further argues the court improperly relied on taking property factor identified in A.R.S. § 13-702 (C)(3) (2006) because it is the same as the pecuniary gain factor identified rejected. in A.R.S. § 13-702(C)(6), which the jury See A.R.S. § 13-702(C)(3) (if the offense involves the taking of property, the value of the property taken shall be 8 considered as an aggravating 702(C)(6) (pecuniary gain). necessity, or soundness of circumstance); A.R.S. § 13- We will not question the wisdom, policy of legislative enactments. Phoenix Newspapers, Inc. v. Purcell, 187 Ariz. 74, 79, 927 P.2d 340, 345 (App. 1996) (citation omitted); Vo v. Superior Court (Ariz.), 172 Ariz. (citation omitted). 195, 205, 836 P.2d 408, 418 (App. 1992) If there is any purpose related to public health, safety or welfare which a statute could serve, we will not question its wisdom. 704 P.2d 291, 293 State v. McInelly, 146 Ariz. 161, 163, (App. 1985) (citation omitted). The legislature has determined these two aggravating factors are to be considered separately. The trial court did not err in considering the taking property factor identified in A.R.S. § 13-703(C)(3) as an aggravating factor, even though the jury rejected pecuniary gain as an aggravating factor. ¶20 Finally, Fraijo argues A.R.S. § 13-703.01(Q) (2006) is unconstitutional in light of Blakely. relevant part, that once the jury That section provides, in opts for a life sentence rather than the death penalty, the trial court shall determine whether to impose natural life or life with a possibility of parole. ¶21 A.R.S. § 13-703.01(Q). We find no error, fundamental or otherwise. As noted above, the court could impose a sentence of natural life based solely on the facts reflected in the jury s verdict. 9 Fell, 210 Ariz. at 557-58, ¶ 11, 115 P.3d at 597-98; Miranda-Cabrera, 209 Ariz. at 227, ¶ 32, 99 P.3d at 42. Blakely is inapplicable. Further, we have previously determined that Arizona s criminal sentencing scheme was not rendered unconstitutional by Blakely. See State v. Conn (Tinnell), 209 Ariz. 195, 197, ¶¶ 6-7, 98 P.3d 881, 883 (App. 2004); Aragon v. Wilkinson, 209 Ariz. 61, 66, ¶ 15, 97 P.3d 886, 891 (App. 2004). 2. Admission of Photographs ¶22 Fraijo next claims the trial court erred by admitting photographs of the victim taken at the scene and during the autopsy. He argues the photographs lacked probative value and were admitted solely to inflame the jury. ¶23 of In ruling on Fraijo's motion to preclude photographs the victim, the trial court found that the photos were relevant and, individually, would not incite passion, were not inflammatory, unduly gruesome, or unduly prejudicial, and were as clinically concluded that sterile admission as of possible. all of the However, State s risked being unduly prejudicial as cumulative. the court photographs It thus limited the number of photographs that could be introduced. ¶24 We review the admission of photographs for an abuse of discretion. State v. Montano, 204 Ariz. 413, 425, ¶ 55, 65 P.3d 61, 73 (2003). In determining whether a trial court erred, we examine the photograph's relevance, its tendency to inflame the 10 jury, and its probative value compared to its potential to cause unfair prejudice. State v. Hampton, 213 Ariz. 167, 173, ¶ 17, 140 P.3d 950, 956 (2006) (citation omitted). ¶25 In a murder trial, photos may be relevant to prove the corpus delicti, to identify the victim, to show the nature and location of the fatal injury, to help determine the degree or atrociousness of the crime, to corroborate state witnesses, to illustrate state s theory or of explain how and testimony, why the and to corroborate homicide was the committed. State v. Anderson, 210 Ariz. 327, 339-40, ¶ 39, 111 P.3d 369, 381-82 (2005) (citation omitted). Relevant photographs are admissible, even if they may tend to prejudice the jury against the defendant. State v. Bocharski, 200 Ariz. 50, 55, ¶ 21, 22 P.3d 43, 48 (2001) (citation omitted). Photos are admissible even where, as here, a defendant does not contest issues such as time or location of death, the cause or manner of death, the nature of the injuries inflicted, or how those injuries resulted in death. Even if a defendant does not contest certain issues, photographs are still admissible if relevant because the burden to prove every defendant s element tactical of the decision element of the offense. crime not to is not contest relieved an by a essential State v. Dickens, 187 Ariz. 1, 18, 926 P.2d 468, 485 (1996) (citations omitted). Finally, [t]here is nothing sanitary about murder, and there is nothing in Rule 11 403, Ariz. R. Evid., that requires a trial judge to make it so. State v. (1997). Rienhardt, 190 Ariz. 579, 584, 951 P.2d 454, 459 The state cannot be compelled to try its case in a sterile setting. Bocharski, 200 Ariz. at 56, ¶ 25, 22 P.3d at 49 (citation omitted). ¶26 The photographs at issue were relevant to show, among other things, the location and condition of the victim's body, the location of other evidence at the scene in relation to the victim, the nature and extent of the victim's injuries, the defensive nature of some of those injuries, the violence and duration of the attack, and to corroborate and give context to testimony. unduly being While some of the photos are unpleasant, none are inflammatory said, admissible as even long or otherwise gruesome as they prejudicial. or inflammatory are not purpose of inflaming the jury. 160 P.3d at 218. unfairly photographs introduced for the That are sole Morris, 215 Ariz. at 339, ¶ 70, Nothing in the record suggests these photos were admitted for that impermissible purpose. The trial court did not err by admitting the challenged photographs. 5 5 Fraijo also argues the court should not have allowed the State to display the photographs on an overhead projector and that the photographs were displayed too many times and/or for too long. He cites no authority requiring a trial court to sua sponte restrict the manner in which properly admitted evidence is displayed during trial, and we are aware of none. 12 3. ¶27 Restrictions on Voir Dire Fraijo also contends the court unduly restricted his voir dire. He does not, however, identify any restrictions placed on voir dire, questions he was not allowed to ask, or issues he was not allowed to explore. objectionable jurors were selected. He does not claim that He does not contend the jury ultimately seated was biased or prejudiced. He does not identify any objections he made to the jury selection process or discuss how the voir dire was allegedly insufficient. Finally, Fraijo identifies no prejudice. 6 ¶28 [O]pening briefs must present significant arguments, supported by authority, setting forth an appellant s position on the issues raised. State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989). The failure to properly argue a claim on appeal constitutes abandonment and waiver of that claim. id.; See State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995). Due to Fraijo's failure to identify how voir dire was unduly restricted during the five-day jury selection process or how he was prejudiced thereby, we decline to address this issue. 6 The single contained in the regarding the death death penalty, he restriction in this reference to any restriction on voir dire opening brief concerns jurors' opinions penalty. Because Fraijo did not receive the suffered no prejudice from any alleged regard. 13 4. The Failure to Give a Willits Instruction ¶29 Fraijo argues the trial court erred by refusing to instruct the jury pursuant to State v. Willits, 96 Ariz. 184, 191, 393 P.2d 274, 279 (1964). During the testimony of a detective, a photograph of the victim's wallet was admitted into evidence. The detective described how the victim was identified through a driver s license found in the wallet. itself and its contents were not introduced The wallet into evidence. Fraijo sought a Willits instruction, arguing the State lost, destroyed or failed to preserve the wallet and/or its contents. He further argued the contents were potentially exculpatory. The trial court refused to give the instruction because there was no indication that the State lost, destroyed, or failed to preserve the evidence. ¶30 We review the refusal to give a Willits instruction for an abuse of discretion. 503, ¶ 62, 975 P.2d 75, State v. Fulminante, 193 Ariz. 485, 93 (1999) (citation omitted). A Willits instruction is appropriate when the state destroys or loses evidence potentially helpful to the defendant. State v. Lopez, 163 Ariz. 108, 113, 786 P.2d 959, 964 (1990) (citation omitted). However, such an instruction is not required merely because a more thorough or exhaustive investigation could have been undertaken by the State. State v. Murray, 184 Ariz. 9, 33, 906 P.2d 542, 566 (1995) (citation omitted). 14 Before a Willits instruction is proper, a defendant must prove that the State failed to preserve material, accessible evidence that might tend to exonerate him. Id. The defendant must also demonstrate that prejudice resulted from the failure to preserve the evidence. Id. There is no abuse of discretion in refusing to give a Willits instruction evidence would have if the had a defendant tendency fails to to establish exonerate the him. Id. (citation omitted). ¶31 There is no evidence that the State lost, destroyed or otherwise failed to preserve the wallet or its contents. The record merely shows the State did not offer this evidence at trial. tended Nothing indicates the wallet or its contents would have to exonerate Fraijo. We will not find an abuse of discretion in refusing to give a Willits instruction when the theory in support of the instruction is purely speculative. See State v. Torres, 162 Ariz. 70, 76, 781 P.2d 47, 53 (App. 1989) (no abuse of discretion when defendant failed to show fingerprints that could have been obtained would have tended to exonerate him); State v. Smith, 158 Ariz. 222, 227, 762 P.2d 509, 514 (1988) (no error in refusing Willits instruction where nothing but speculation suggested the number on destroyed piece of paper was not the defendant s license plate number); State v. Dunlap, 187 Ariz. 441, 464, 930 P.2d 518, 541 (App. 1996) (no error in declining Willits instruction when claim that contents 15 of destroyed files speculative). would tend Speculation to exonerate [regarding defendant whether was destroyed evidence may have been exculpatory] is not the stuff out of which constitutional error is made. State v. Youngblood, 173 Ariz. 502, 506, 844 P.2d 1152, 1156 (1993). 5. The Disparity in Sentences ¶32 Finally, consider as a Fraijo argues mitigating the factor trial the court failed disparity to between Codefendant's seven-year sentence and his natural life sentence. 7 He contends the court should have considered this factor and, in turn, given him life with a possibility of parole after twentyfive years. Because Fraijo did not raise this issue below, we review only for fundamental error. Gendron, 168 Ariz. at 154, 812 P.2d at 627 (citations omitted). ¶33 Although a disparity in sentences between codefendants can be a mitigating factor for sentencing purposes, State v. Kayer, 194 (citations Ariz. 423, omitted), 439, Fraijo ¶ 57, never 984 P.2d 31, submitted disparity to the trial court for its consideration. 47 the (1999) alleged It was not identified in Fraijo's sentencing memorandum, referenced during the punishment phase of trial, or mentioned at sentencing. 7 We Documentation of Codefendant's sentence is not included in the record on appeal. However, Fraijo attached a copy of the sentencing minute entry to his opening brief, and the State does not contest its accuracy. 16 will not find error in the trial court's failure to consider, let alone find, a mitigating factor that was never suggested before sentencing. ¶34 Moreover, although a disparity in sentences between codefendants can be a mitigating factor, only an unexplained disparity is significant. State v. Ellison, 213 Ariz. 116, 140, ¶ 105, 140 P.3d 899, 923 (2006) (citation omitted). also Kayer, 194 Ariz. at 439, ¶ 57, 984 P.2d at 47. disparity in sentences is easily explained. class 1 felony. 6. Here, the Codefendant pled guilty to hindering prosecution, a class 3 felony. 13-2512 (2006). See See A.R.S. § Fraijo was convicted of first degree murder, a See A.R.S. § 13-1105(A)(2006). The Imposition of Two Life Sentences ¶35 The offense, regardless premeditated first degree of murder murder whether or felony of the one victim theory of murder. is a single conviction This is was because premeditated murder and felony murder are simply two forms of first degree murder. State v. Tucker, 205 Ariz. 157, 167, ¶ 50, 68 P.3d 110, 120 (2003) (citation omitted). v. Schad, 163 Ariz. 411, 417, 788 P.2d See also State 1162, 1168 (1989). Because there was a single offense with a single victim, Fraijo cannot be sentenced to two separate terms of imprisonment for the murder. He can, however, be convicted of first degree murder of a single victim under theories of both premeditated 17 murder and felony murder. 576, ¶ 76, 74 P.3d 231, See State v. Dann, 205 Ariz. 557, 250 (2003) (affirming two separate convictions for the premeditated murder and felony murder of a single victim). ¶36 While this issue was not raised by either party, we choose not to ignore it. first degree murder We affirm Fraijo's conviction for under the alternative theories premeditated first degree murder and felony murder. of However, we vacate one of the concurrent life sentences and affirm the other natural life sentence. CONCLUSION ¶37 For the foregoing reasons, we affirm convictions and his sentence for armed robbery. Fraijo's We modify his sentence on the murder convictions to one term of imprisonment for natural life. /s/ MARGARET H. DOWNIE, Presiding Judge CONCURRING: /s/ DONN KESSLER, Judge /s/ PETER B. SWANN, Judge 18

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