State of Arizona v. Robert Hernandez

IN THE

SUPREME COURT OF THE STATE OF ARIZONA
_______________
STATE OF ARIZONA,
Appellee,
v.
ROBERT HERNANDEZ,
Appellant.
_______________
No. CR-10-0415-AP
Filed July 26, 2013
_______________
Appeal from the Superior Court in Maricopa County
The Honorable Sally Schneider Duncan, Judge
No. CR2008-124043-001
AFFIRMED
_______________
COUNSEL
Thomas C. Horne, Arizona Attorney General, Jeffrey A. Zick, Chief
Counsel, Kent E. Cattani, Former Chief Counsel Criminal
Appeals/Capital Litigation, Ginger Jarvis, Assistant Attorney General
(argued), Phoenix, for State of Arizona

Michael J. Dew (argued), Michael J. Dew Attorney At Law, Phoenix, for
Robert Hernandez
_______________
JUSTICE BRUTINEL authored the opinion of the Court, in which CHIEF
JUSTICE BERCH, VICE CHIEF JUSTICE BALES, JUSTICE PELANDER,
and JUSTICE TIMMER joined.
_______________

JUSTICE BRUTINEL, opinion of the Court:

¶1 A jury found Robert Hernandez guilty of murdering Jeni Sanchez-
Rivera, her husband, Omar Guzman Diaz, and Omar’s younger brother,
Pablo Guzman Diaz, as well as attempted murder for shooting and
seriously injuring Maria Elodia Diaz-Payan. The jury determined
Hernandez should be sentenced to death for each murder. We have
 STATE V. HERNANDEZ
Opinion of the Court

jurisdiction over this automatic appeal pursuant to Article 6, Section 5(3)
of the Arizona Constitution and A.R.S. § 13-4031.1

I. FACTUAL AND PROCEDURAL BACKGROUND2

¶2 In April 2008, Maria Diaz-Payan traveled to Phoenix to visit her
friend, Jeni Sanchez-Rivera, who lived with her husband, Omar Guzman
Diaz. After Maria’s arrival, she, Jeni, Jeni’s son, and Jeni’s friend, Sonia
Gonzalez, took a short trip to New Mexico in a car rented by Sonia’s
mother, Martha Gonzalez.

¶3 Sonia Gonzalez is the mother of Hernandez’s three children. While
in New Mexico, Sonia missed a birthday party for one of her and
Hernandez’s children, Angel, which angered Hernandez.

¶4 The day after returning from New Mexico, Jeni and Maria met
Omar and Omar’s younger brother, Pablo Guzman Diaz, and drove to
Jeni’s house in Peoria. Upon arriving, Omar and Pablo entered the house
first, while Jeni and Maria stayed in the car. Shortly thereafter, Hernandez
came outside and walked toward the car. Although Maria did not know
Hernandez, Jeni referred to him as “Bobby.” Removing a gun from his
pants, Hernandez forced Maria and Jeni into the house, telling them not to
scream or make any noise.

¶5 Once inside, Maria could hear Omar and Pablo crying and shouting
from inside Jeni’s bedroom. While Hernandez forced Maria and Jeni
down a corridor to another bedroom, Maria saw another man wearing a
ski mask and holding a pistol in Jeni’s bedroom. She could hear Omar
and Pablo pleading for the men not to hurt them or their family. Maria
heard Omar ask Hernandez, “What harm have we done to you, Bobby?”

¶6 Hernandez bound Jeni’s and Maria’s hands behind their backs.
While on the bedroom floor, Maria did not look at her captors’ faces,
hoping they would not harm her. Maria heard Hernandez and Jeni talk
about Sonia. Then, Maria heard Hernandez slap Jeni.

1 We cite the current version of statutes that have not materially
changed since the events at issue.
2 The facts are presented in the light most favorable to sustaining the
jury’s verdicts. State v. Hardy, 230 Ariz. 281, 284 ¶ 2 n.2, 283 P.3d 12, 15 n.2
(2012).

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¶7 After Hernandez returned to Omar and Pablo, Maria heard several
gunshots, and Omar’s and Pablo’s cries ended. Shortly thereafter,
Hernandez and the masked man walked to the bedroom where Maria and
Jeni lay. Maria heard gunshots and “right away noticed that they had
already shot [Jeni].” One of the two men then shot Maria.

¶8 Sometime later, Maria realized she was still alive, but bleeding
from the scalp. She ran to a neighbor’s house to get help and was later
taken to a hospital, where she underwent surgery to remove a bullet from
her head. At the hospital, Detective Lopez showed Maria a photo lineup
of six men. Maria identified a photo of Robert Hernandez as “Bobby.”

¶9 Peoria Police detectives found the bodies of Jeni, Omar, and Pablo
at the house. Omar’s body had six stab wounds. According to the
medical examiner, these wounds were likely inflicted while Omar was still
alive. Police also found one copper-jacketed bullet and two lead-jacketed
bullets in the room, suggesting two different weapons were used to kill
Omar and Pablo.

¶10 Police later determined that Jeni and Martha Gonzalez co-leased
the house where the murders occurred. Martha was initially cooperative
with the detectives and identified the “Bobby” described by Maria as
Robert Hernandez. She told Detective Lopez that Hernandez had a gun,
knew where Jeni and Omar lived, and was upset because Sonia went to
New Mexico with Jeni and had missed Angel’s birthday party. She also
told Detective Lopez that Hernandez had called her at approximately 5:30
p.m. on the day of the murders to say “Omar and Jeni would not be
bothering Sonia anymore.”

II. ISSUES ON APPEAL

A. Denial of Requests for Change of Counsel

¶11 Hernandez asserts that the trial court did not sufficiently inquire
into the bases for his three requests for new counsel and erred in denying
the requests. We review a trial court’s ruling denying a change of counsel
for an abuse of discretion. State v. Torres, 208 Ariz. 340, 343 ¶ 9, 93 P.3d
1056, 1059 (2004).

¶12 As we recently stated in State v. Gomez, “[t]he Sixth Amendment
guarantees criminal defendants the right to representation by counsel, but
an indigent defendant is not entitled to counsel of choice, or to a
meaningful relationship with his or her attorney.” 231 Ariz. 219, 224 ¶ 19,
293 P.3d 495, 500 (2012) (quoting Torres, 208 Ariz. at 342 ¶ 6, 93 P.3d at

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1058) (internal quotation marks omitted), cert. denied, 133 S. Ct. 2339
(2013). The trial court must appoint new counsel, however, if either “an
irreconcilable conflict or a completely fractured relationship between
counsel and the accused” exists. State v. Cromwell, 211 Ariz. 181, 186 ¶ 29,
119 P.3d 448, 453 (2005).

¶13 To preserve a defendant’s Sixth Amendment right to counsel, the
trial court has a “duty to inquire as to the basis of a defendant’s request
for substitution of counsel.” Torres, 208 Ariz. at 343 ¶ 7, 93 P.3d at 1059.
The court must make the inquiry on the record. Id. (citing United States v.
Morrison, 946 F.2d 484, 499 (7th Cir. 1991)).

¶14 “The nature of the [court’s] inquiry will depend upon the nature of
the defendant’s request.” Id. ¶ 8. On the one hand, “generalized
complaints about differences in strategy may not require a formal hearing
or an evidentiary proceeding.” Id. On the other hand, if the defendant
sets forth “sufficiently specific, factually based allegations, . . . [the] court
must conduct a hearing into his complaint.” Id. (quoting United States v.
Lott, 310 F.3d 1231, 1249 (10th Cir. 2002)) (internal quotation marks
omitted).

¶15 If the trial court does conduct an inquiry, the defendant bears the
burden of proving either a “complete breakdown in communication or an
irreconcilable conflict.” Id. at 342 ¶ 6, 93 P.3d at 1058. To satisfy this
burden, the defendant must present evidence of a “severe and pervasive
conflict with his attorney or evidence that he had such minimal contact
with the attorney that meaningful communication was not possible.” Lott,
310 F.3d at 1249. A colorable claim “must go beyond personality conflicts
or disagreements with counsel over trial strategy.” Cromwell, 211 Ariz. at
187 ¶ 30, 119 P.3d at 454. If a defendant meets this burden, the trial court
“must grant the request for new counsel.” Torres, 208 Ariz. at 343 ¶ 8, 93
P.3d at 1059.

1. Trial Court’s Inquiry into Hernandez’s Request for New Counsel

¶16 Hernandez argues that his allegations that defense counsel had
only visited him at the jail four times in more than two years and had
never spoken with him about his case were sufficiently specific to require
a Torres hearing. Hernandez asserts that the trial court’s inquiry was
insufficient and asks this Court to remand for a more extensive
evidentiary hearing on his claims. Although the trial court could have
engaged in a more searching exploration of the responses from
Hernandez’s attorneys as to whether there were irreconcilable differences,

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Opinion of the Court

the court did not abuse its discretion because its inquiry was sufficient.

¶17 The record reflects that during the course of this case, Hernandez
met and communicated with his attorneys several times. For example, on
December 10, 2008, Hernandez, his two attorneys, Rodrick Carter and
Stephen Johnson, as well as his mitigation specialist, attended a mitigation
status conference. There, the court asked Hernandez: “Do you have any
questions of your defense team or -- are they keeping you pretty well
advised of what is going on?” Hernandez assented. The court concluded
that “it sounds like you have got a good working relationship with your
defense team. So continue to be cooperative with them.”

¶18 On February 6, 2009, the court conducted another mitigation status
conference attended by Hernandez, his two defense attorneys, and his
mitigation specialist. Hernandez again affirmed that his attorneys had
been giving him progress reports. Mr. Carter also communicated
Hernandez’s request to be tried by his “last day.” The court again
concluded that “Defendant remains cooperative with his defense team.”

¶19 Six months later on August 20, Hernandez filed a motion to
withdraw counsel and appoint new counsel. He alleged that his attorney
had visited him only once “in approximately 15 months” and had never
discussed his case. Because of this “lack of communication,” Hernandez
claimed there was “no client and lawyer relationship.” The trial court did
not rule on this motion, but six weeks later, on October 7, the court
conducted a case management conference. Hernandez and both of his
attorneys were present. Mr. Carter informed the court of Hernandez’s
decision to waive time by noting: “I’ve discussed it with my client, he has
agreed to waive time.” On July 21, 2010, the court conducted another case
management conference with Hernandez and his counsel. Mr. Carter
advised the court that Hernandez “ha[d] indicated to [Carter] that he
cannot see and needs glasses.”

¶20 Two months later, on September 24, Hernandez filed a second
motion for new counsel based on “irreconcilable differences” and
“conflicts of interest.” Hernandez stated that he had filed a bar complaint
and a civil lawsuit against Mr. Carter because “Mr. Carter has not gone
over this case” and “refuses to allow [me] to have a part in [my] defense.”

¶21 The trial court addressed Hernandez’s motion on October 1, asking
Hernandez and his counsel whether there were irreconcilable differences.
Mr. Carter denied any conflict with Hernandez and acknowledged that
“Mr. Hernandez is frustrated with communication as far as him being able

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to participate in his defense as far as the investigation goes and possible
witnesses that he — that he may feel are important.” Mr. Carter agreed to
address those issues with Hernandez. Mr. Johnson, Hernandez’s second
chair counsel, echoed Mr. Carter’s response.

¶22 The court then asked whether defense counsel felt that
communication with Hernandez had broken down or irreconcilable
differences, other than differences in strategy, had arisen. Mr. Carter said
no, but agreed to speak with Hernandez about his strategic concerns.

¶23 The trial judge denied Hernandez’s motion, finding no basis for
removing counsel. The judge then explained the role of counsel in a
criminal proceeding, as well as Hernandez’s specific constitutional rights.

¶24 Hernandez responded:

Well, your Honor, I’ve been here for two years and four
months. I’ve been visited by him four times, and I can tell
you exactly why, and never once have I spoken to him about
my case or anything in my case, not once, Your Honor.

....

I’ve asked him to, if he could, come over so we can go over it
and I could tell him some certain things that I know about,
and it’s never happened, Your Honor, and there’s like -- my
mother-in-law is a witness to this case that’s really crucial to
this, and just the other day they tried to interview her just
barely Thursday or Wednesday it was, and Your Honor,
we’ve got three weeks.

....

And then I got a lot of other people too that they should
have interviewed by now that haven’t been interviewed.

¶25 Mr. Carter then addressed the visitation issue:

Mr. Hernandez has received visits from myself, Mr. Johnson
and Maria Del La Rosa, my mitigation specialist. Mr.
Hernandez has received his file when requested as far as the
police reports, and I believe he received them early on. The
visitation with Mr. Hernandez and in our investigation into
this trial, Judge, is we will be ready for trial on the 18th as

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scheduled.

Mr. Carter next spoke to Hernandez’s concerns regarding witness
interviews:

With respect to the witnesses being interviewed, Martha
Gonzalez I believe he’s speaking about right now, she
interviewed with the police, which we have a transcript of.
She interviewed with codefendant’s counsel, which we have
a -- if we don’t have a transcript, we definitely have the copy
of the tape. She’s also testified twice. We have statements
from her in at least four different pretrial areas. We have
statements from other witnesses that were either conducted
by the police or previous defense counsel as well.

¶26 Following defense counsel’s responses, the trial court explained
that differences in trial strategy did not provide adequate grounds to
disqualify counsel. The court denied Hernandez’s motion, but ordered
both lawyers and the mitigation specialist to meet to talk with Hernandez
within the week.

¶27 Hernandez filed a third motion to change counsel a week later. He
reasserted his claim of a lack of communication and emphasized that Mr.
Carter “has yet to interview any witnesses,” and has refused his requests
to view “any and all evidence, police reports, [and] supplements in said
police report.”

¶28 On October 12, the trial court held a hearing to determine whether
counsel had met with Hernandez and was ready to begin trial as
scheduled. The trial judge asked, “Did you listen to everything he had to
say that was of concern?” Mr. Carter responded, “yes.” Hernandez
protested:

Like I was telling you, Judge, you know, the whole time I
have been here, the first time I heard anything about my case
was right here when he talked to me the first time. He
didn’t ask my opinion, any kind of strategy, anything.
That’s the first time he talked to [me] about it the whole
time; two years, six months.

Hernandez also claimed that, in a discussion with Hernandez’s wife, Mr.
Carter did not recognize the names of Hernandez’s co-defendants. The
court denied Hernandez’s motion, but ordered that the lawyers again
meet with Hernandez at the jail.

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Opinion of the Court

¶29 Hernandez raised sufficiently specific factual allegations to warrant
an inquiry. But the judge’s inquiry fulfilled the requirements of Torres.
The transcript of the court’s inquiry on October 1 contains more than
thirteen pages of discussion between the court, Hernandez, and his
counsel, concerning Hernandez’s motion for new counsel, including
several specific questions addressed to Hernandez and his lawyers about
whether there were “irreconcilable differences” or a “breakdown in
communication.” The court listened to Hernandez and ordered counsel to
meet with Hernandez to address his concerns. The trial court sufficiently
considered and addressed Hernandez’s allegations.

¶30 Likewise, the court’s second inquiry on October 12 confirmed that
Hernandez had met with the lawyers as ordered. The court listened to
and considered Hernandez’s ongoing concerns and his attorneys’
responses. The second inquiry was sufficient.

¶31 Nevertheless, we underscore the importance of conducting a Torres
inquiry and establishing a thorough record for appeal. “In order to
exercise its discretion properly the court must elicit from the defendant
the reasons for his objection to counsel.” Torres, 208 Ariz. at 343 ¶ 9, 93
P.3d at 1059 (quoting United States v. Morris, 714 F.2d 669, 673 (7th Cir.
1983)). Likewise, if the defendant makes specific allegations when
requesting new counsel, the trial court should elicit specific on-the-record
responses to the allegations from defense counsel.

2. Denial of Requests for New Counsel

¶32 Hernandez argues that even if the inquiry was sufficient, “the trial
court erred in refusing to grant defendant’s multiple requests for new
counsel.” We disagree.

¶33 Although Hernandez claims that his attorneys were ineffective in
preparing for trial and did not communicate with him, at bottom his
complaint is that his lawyers had not adequately consulted him regarding
trial strategy and were not sufficiently familiar with his case. We have
previously characterized similar complaints, when unsupported by the
record, as disagreements over trial strategy. See State v. Henry, 189 Ariz.
542, 547, 944 P.2d 57, 62 (1997).3 Such disagreements do not amount to

3 Hernandez’s arguments may be raised in a Rule 32 petition for
post-conviction relief. See Henry, 189 Ariz. at 547, 944 P.2d at 62
(“Although tactical decisions may raise concerns about attorney
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Opinion of the Court

“irreconcilable differences” and are not alone a basis for new counsel.
Cromwell, 211 Ariz. at 186–87 ¶¶ 29–30, 119 P.3d at 453–54.

¶34 Something less than irreconcilable conflict becomes merely “one
factor for a [trial] court to consider” in determining whether to appoint
new counsel. Id. at 186 ¶ 29, 119 P.3d at 453. A trial court should also
evaluate (1) “whether new counsel would be confronted with the same
conflict”; (2) “the timing of the motion”; (3) “inconvenience to witnesses”;
(4) “the time period already elapsed between the alleged offense and
trial”; (5) “the proclivity of the defendant to change counsel”; and (6) the
“quality of counsel.” Id. at 187 ¶ 31, 119 P.3d at 454 (quoting State v.
LaGrand, 152 Ariz. 483, 486–87, 733 P.2d 1066, 1069–70 (1987)). Although
the defendant’s concerns must be evaluated and carefully considered, the
trial court must also “balance the rights and interests of the defendant
against the public interest in judicial economy, efficiency and fairness.”
Id.

¶35 Although the trial court did not explicitly refer to the
aforementioned factors, the record indicates that the court considered
them when assessing whether new counsel was warranted. The trial
judge determined that there was neither an irreconcilable conflict nor a
complete breakdown in communication that would require new counsel.
The judge was aware that Hernandez had been in jail for two and a half
years awaiting trial and that another continuance of the trial, which had a
“firm” setting three weeks away, would certainly delay the case and
inconvenience witnesses. The judge also examined the quality of counsel
by questioning both attorneys about whether they were adequately
prepared to go to trial and to competently represent their client.

¶36 Accordingly, the trial court sufficiently inquired into the bases for
Hernandez’s requests for new counsel and did not abuse its discretion in
denying the requests.

B. Impeachment Evidence Relating to Maria

¶37 Hernandez asserts that the trial court erred by twice refusing to
permit him to impeach Maria, the surviving victim, with her prior
inconsistent statements. We review a trial court’s ruling regarding the
scope of cross-examination for an abuse of discretion. State v. Ellison, 213
Ariz. 116, 132 ¶ 52, 140 P.3d 899, 915 (2006). Although Hernandez argues

competence, such matters are more properly analyzed in post-conviction
relief proceedings.”).

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Opinion of the Court

that he should have been allowed to impeach Maria’s testimony with her
prior inconsistent statements, the trial court did not err in precluding the
questions absent an offer of proof of the prior statements. The lack of an
offer of proof forecloses Hernandez’s argument on appeal. See Ariz. R.
Evid. 103(a)(2); State v. Bay, 150 Ariz. 112, 115, 722 P.2d 280, 283 (1986).

¶38 On direct examination, Maria testified several times that a man she
did not know came out of the house toward the car. Although she did not
know who this man was, Maria testified that she was able to clearly see a
man, who was identified to her by Jeni as “Bobby,” when she was forced
from the vehicle into the house. Maria also testified that she did not look
at Bobby’s face once she was inside the home for fear of additional harm.
She only “saw [the men’s] feet coming and going.”

¶39 On cross-examination, defense counsel sought to impeach Maria’s
testimony with statements purportedly made to Officer Rodriguez:

Q. Ms. Diaz, do you remember telling Officer Rodriguez
when he asked you who did this, do you recall responding:
There were two. I did not see them. One said do not look at
us or we will kill you. Do you recall saying that?

The trial court sustained the prosecutor’s objection to improper
impeachment. Defense counsel did not make an offer of proof.

¶40 Defense counsel later attempted to impeach Maria by asking, “So
you did not tell Officer Rodriguez that you did not see these people until
you were inside the house?” The prosecution again objected to improper
impeachment. The trial court sustained the objection, and defense counsel
again did not make an offer of proof.

¶41 Prior inconsistent statements may be used to impeach the
credibility of a witness, and such statements may be proven by extrinsic
evidence. Ariz. R. Evid. 613(b)(2). “As a preliminary matter, however, the
court must be persuaded that the statements are indeed inconsistent.”
United States v. McLaughlin, 663 F.2d 949, 952 (9th Cir. 1981) (quoting
United States v. Hale, 422 U.S. 171, 176 (1975)); see also Ariz. R. Crim. P. 19.3
(“No prior statement of a witness may be admitted for the purpose of
impeachment unless it varies materially from the witness’ testimony at
trial.”).

¶42 A party can claim the exclusion of evidence is error only if the
exclusion affects the party’s substantial rights and the party makes an
offer of proof. Ariz. R. Evid. 103(a)(2). An offer of proof is critical because

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it permits “the trial judge to reevaluate his decision in light of the actual
evidence to be offered, . . . and to permit the reviewing court to determine
if the exclusion affected the substantial rights of the party offering it.”
Fortunato v. Ford Motor Co., 464 F.2d 962, 967 (2d Cir. 1972). Because
defense counsel did not make an offer of proof as to how Maria’s
purported pre-trial statements to Officer Rodriguez were inconsistent
with her testimony, neither the trial court, nor this Court, can assess
whether Maria’s pretrial statements varied materially from her in-court
testimony.

¶43 An offer of proof is not required if “it is obvious what the answer of
the witness will be or what the proof will be,” State v. Belcher, 109 Ariz.
551, 553, 514 P.2d 472, 474 (1973), or the relevancy and materiality of the
excluded evidence is apparent, State v. Kaiser, 109 Ariz. 244, 247, 508 P.2d
74, 77 (1973). In this case, it is not obvious what the relevance of the first
impeachment attempt was because Maria’s direct testimony does not
notably conflict with her purported statements to Officer Rodriguez. Her
alleged statements to Officer Rodriguez, — “There were two. I didn’t see
them. One said do not look at us or we will kill you.” — correspond to
Maria’s direct testimony as she explained that she saw Hernandez while
she was outside the home, but once inside, she did not look at Hernandez
again for fear of additional harm. An offer of proof would have provided
the trial court, and this Court, with the basis to discern any inconsistency.

¶44 The second impeachment attempt poses similar problems. Defense
counsel was ostensibly asserting that Maria told Officer Rodriguez that
she did not see “Bobby” and his accomplice until she was inside the
house, as opposed to her direct testimony where she stated that she saw
“Bobby” walk toward her and Jeni in the car outside. But defense
counsel’s cross-examination attempted to impeach Maria’s purported
statements to Officer Rodriguez in two different ways. First, defense
counsel asked whether Maria told Officer Rodriguez “There were two. I
did not see them. One said do not look at us or we will kill you.” Then, just
nine questions later, defense counsel asked whether Maria told Officer
Rodriguez that she “did not see these people until you were inside the
house.” Again, without an offer of proof, we cannot know what Maria
told Officer Rodriguez or whether it was inconsistent with her trial
testimony. Because the substance of the alleged prior inconsistent
statement is not readily apparent, the absence of an offer of proof renders
us unable to evaluate the trial court’s ruling and precludes Hernandez’s
argument on appeal. Accordingly, we cannot say the trial court abused its
discretion.

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C. Impeachment Evidence to Substantively Prove Guilt

¶45 Hernandez next argues that the court should not have allowed the
State to present evidence impeaching Martha Gonzalez as substantive
evidence of Hernandez’s guilt. Because Hernandez did not object at trial,
we review for fundamental error. State v. Henderson, 210 Ariz. 561, 567
¶ 19, 115 P.3d 601, 607 (2005). To obtain relief under that standard of
review, Hernandez “must first prove error.” Id. at 568 ¶ 23, 115 P.3d at
608. We find none.

¶46 At trial, Martha was evasive when the State asked whether she
talked with Hernandez on the day of the murders. She initially denied
speaking with Hernandez, but then admitted she had done so after the
State asked if she remembered telling Detective Lopez that she spoke with
Hernandez that day. The State then asked if she remembered telling
Detective Lopez that Hernandez told her that “Omar and Jeni weren’t
going to be bothering Sonia anymore.” Martha did not remember making
such a statement. In rebuttal, the State recalled Detective Lopez, who
testified that Martha had told him that she had “several phone
conversations with Bobby the day of the murders” and Martha heard
Hernandez tell her that “Omar and Jeni weren’t going to be bothering
Sonia anymore.” According to Hernandez, Martha’s prior inconsistent
statement should not have been used substantively as the admission
significantly contributed to his conviction. Although we agree that the
statement likely contributed to Hernandez’s conviction, the trial court did
not err in admitting the statement.

¶47 A prior inconsistent statement4 by a witness subject to cross-
examination is not hearsay. Ariz. R. Evid. 801(d)(1)(A). Prior inconsistent
statements can be used substantively and to impeach. See, e.g., State v.
Skinner, 110 Ariz. 135, 142, 515 P.2d 880, 887 (1973).

¶48 But substantive use of a prior inconsistent statement is not limitless.
A prior inconsistent statement admissible under Rule 801(d)(1)(A) can be
excluded under Arizona Rule of Evidence 403 if it creates a danger of
unfair prejudice. State v. Allred, 134 Ariz. 274, 278, 655 P.2d 1326, 1330
(1982). Allred enumerated five factors to consider when assessing whether
Rule 403 should bar admission of a prior inconsistent statement for

4 “A claimed inability to recall, when disbelieved by the trial judge,
may be viewed as inconsistent with previous statements.” State v.
Hausner, 230 Ariz. 60, 76 ¶ 58, 280 P.3d 604, 620 (2012). Hernandez does
not dispute that Martha’s testimony was inconsistent.
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substantive purposes:

1. the witness being impeached denies making the
impeaching statement, and
2. the witness presenting the impeaching statement has
an interest in the proceeding and there is no other
corroboration that the statement was made, or
3. there are other factors affecting the reliability of the
impeaching witness, such as age or mental
capacity, . . .
4. the true purpose of the offer is substantive use of the
statement rather than impeachment of the witness,
5. the impeachment testimony is the only evidence of
guilt.

Id. at 277, 655 P.2d at 1329 (alteration in original). Although these five
Allred factors are instructive, they are not exhaustive. Id. Rather,
assessing the danger of unfair prejudice requires a fact-specific
examination into the nature of the prior inconsistent statement and the
reason for its substantive use. State v. Sucharew, 205 Ariz. 16, 23 ¶ 20, 66
P.3d 59, 66 (App. 2003).

¶49 Only the fourth factor weighs against the admission of impeaching
testimony because the State wanted to elicit Hernandez’s statement — that
Omar and Jeni weren’t going to be bothering Sonia anymore — for its
substance, rather than to impeach Martha’s credibility. But this is
outweighed by the first, second, third, and fifth Allred factors favoring
admission. The trial court could well have found that the possibility of
unfair prejudice did not outweigh the probative value of the testimony.
The court did not err, let alone fundamentally err, in admitting this
evidence.

D. Evidence of Premeditation

¶50 Hernandez argues that the State presented insufficient evidence of
premeditation. He posits that if a “defendant is an accomplice to an
offense other than murder (i.e., kidnapping) and the principal commits a
premeditated homicide, that accomplice liability does not extend to or is
not imputed to the defendant.” We review the record to resolve “whether
substantial evidence supports the jury’s [premeditation] finding, viewing
the facts in the light most favorable to sustaining the jury verdict.” State v.
Roque, 213 Ariz. 193, 218 ¶ 93, 141 P.3d 368, 393 (2006). Substantial
evidence is “proof that reasonable persons could accept as adequate and

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sufficient to support a conclusion of [the] defendant’s guilt beyond a
reasonable doubt.” Id. (quoting State v. Roseberry, 210 Ariz. 360, 369 ¶ 45,
111 P.3d 402, 411 (2005)) (internal quotation marks omitted).

¶51 For premeditated murder, the State must show substantial
evidence that the defendant, “intending or knowing that the person’s
conduct will cause death, . . . causes the death of another with
premeditation.” A.R.S. § 13–1105(A)(1). “To prove premeditation, the
state must show that a defendant intended to kill another person, and
after forming that intent[,] . . . reflected on the decision before killing.”
State v. VanWinkle, 230 Ariz. 387, 391–92 ¶ 15, 285 P.3d 308, 312–13 (2012)
(quoting State v. Thompson, 204 Ariz. 471, 479 ¶ 32, 65 P.3d 420, 428 (2003))
(internal quotation marks omitted), cert. denied, 133 S. Ct. 909 (2013).

¶52 A defendant can be guilty of premeditated murder as an
accomplice if he intended to facilitate or aid in committing the murder.
Ellison, 213 Ariz. at 134 ¶ 67, 140 P.3d at 917. In Ellison, evidence that the
defendant knew the victims, planned the invasion, and did not attempt to
conceal his identity was sufficient to permit the fact finder to infer that
Ellison intentionally aided or assisted in the killing, or even committed the
murder himself. Id. ¶ 70.

¶53 As in Ellison, the jury could have found that Hernandez acted as an
accomplice, intending to aid in committing the murder. Hernandez knew
the victims. He planned an invasion of their home. He did not attempt to
conceal his identity from them. Although Hernandez argues that no
forensic evidence tied him to the scene, premeditation can, of course, be
proved by circumstantial evidence and was adequately proven here. See
State v. Nelson, 229 Ariz. 180, 185 ¶ 16, 273 P.3d 632, 637 (2012), cert. denied,
133 S. Ct. 131 (2012).

E. Unanimous Enmund-Tison Finding

¶54 Although Hernandez argues that the jury was required to make a
unanimous Enmund-Tison finding, Hernandez concedes, and we agree,
that upholding the premeditation finding renders the Enmund-Tison issue
moot as Enmund-Tison only applies to felony murder. See State v. Dann,
220 Ariz. 351, 366 ¶ 73, 207 P.3d 604, 619 (2009) (requiring no further
Enmund-Tison finding after a premeditated murder verdict).

F. Evidence of Especial Cruelty for the Murder of Jeni

¶55 Hernandez argues that the State failed to present sufficient
evidence that Jeni’s murder was “especially cruel.” We review the entire

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Opinion of the Court

murder transaction to determine whether substantial evidence supports
the jury’s finding of the (F)(6) “especially cruel” aggravating factor. State
v. Gallardo, 225 Ariz. 560, 565 ¶ 15, 242 P.3d 159, 164 (2010).

¶56 To show a murder was especially cruel under A.R.S. § 13-751(F)(6),
the State must prove beyond a reasonable doubt that the defendant
intended or anticipated that the victim suffer either physical pain or
mental distress. Ellison, 213 Ariz. at 141–42 ¶ 119, 140 P.3d at 924–25.
Mental distress is established if the victim either “experienced significant
uncertainty as to her ultimate fate . . . or if the victim was aware of a loved
one’s suffering.” Id. at 142 ¶ 120, 140 P.3d at 925 (internal citations
omitted). Here, both types of mental distress are present.

1. Uncertainty as to One’s Fate

¶57 Hernandez’s incorrectly asserts that “there is no indication in the
Record that Jeni suffered.” Hernandez used a pistol to force Jeni (and
Maria) into the house, where they heard Omar and Pablo screaming and
pleading not to be harmed. See State v. McCall, 139 Ariz. 147, 161, 677 P.2d
920, 934 (1983) (finding the victims suffered uncertainty as to their
ultimate fate, and thus mental anguish, where defendants herded victims
throughout their home at gunpoint). Hernandez bound Jeni’s hands
behind her back. See State v. Lynch, 225 Ariz. 27, 41 ¶ 79, 234 P.3d 595, 609
(2010) (finding mental anguish when conscious victim was bound to
chair). While bound, Jeni would have been uncertain as to her fate, see
State v. Bible, 175 Ariz. 549, 605, 858 P.2d 1152, 1208 (1993), and thus
suffered the requisite mental anguish necessary for the “especially cruel”
finding required by § 13-751(F)(6).

2. Aware of a Loved One’s Suffering

¶58 Mental distress can also be found when the victim is aware of a
loved one’s suffering. Ellison, 213 Ariz. at 142 ¶ 120, 140 P.3d at 925; see
also McCall, 139 Ariz. at 161, 677 P.2d at 934.

¶59 Hernandez argues the State did not prove mental distress because
Jeni was already dead before the others, and thus she was not “forced to
listen as [her] loved ones were shot one at a time.” But contrary evidence
was presented at trial.

¶60 Although Maria testified, “I heard shots in the other room, and
right away I noticed that they had already shot my friend, [Jeni],” she also
testified at length about hearing Omar and Pablo crying in Jeni’s bedroom
as she and Jeni walked toward another room in the house. According to

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Opinion of the Court

Maria, both Omar and Pablo “were asking [Hernandez and his
accomplice] not to hurt them or the family, and each time they were
screaming louder and stronger.” Maria, and presumably Jeni, also heard a
strange sound coming from Jeni’s room that “led [her] to think that it was
something that they were giving electric shocks,” followed by more cries
from Omar and Pablo. Because Jeni was alive to hear Omar’s and Pablo’s
pleas, it is immaterial whether she was the first victim killed. Jeni heard
her loved ones’ pleas and endured mental distress because she was aware
of their suffering.

¶61 In sum, substantial evidence supporting the jury’s (F)(6) cruelty
finding that Jeni suffered mental anguish, both from the uncertainty as to
her fate and her awareness of Omar’s and Pablo’s suffering.

III. ABUSE OF DISCRETION REVIEW

¶62 Because Hernandez murdered Omar, Pablo, and Jeni after August
1, 2002, we review Hernandez’s death sentences only “to determine
whether the trier of fact abused its discretion in finding aggravating
circumstances and imposing a sentence of death.” A.R.S. § 13-756(A). A
finding of aggravating 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. Manuel, 229 Ariz. 1, 9 ¶ 42, 270 P.3d 828, 836
(2011) (quoting State v. Morris, 215 Ariz. 324, 341 ¶ 77, 160 P.3d 203, 220
(2007)).

A. Aggravating Circumstances

¶63 For each murder the jury found four aggravating factors:
Hernandez had been previously convicted of a serious offense, A.R.S.
§ 13-751(F)(2); he committed the crime in an especially cruel manner, id.
§ 13-751(F)(6); he committed the offense while on authorized release from
the state department of corrections, id. § 13-751(F)(7)(a); and he was
convicted of one or more other murders that were committed during the
commission of the offense, id. § 13-751(F)(8).

¶64 Hernandez does not dispute the jury’s finding of the (F)(8)
aggravating circumstance, and the record fully supports that finding. For
the reasons set forth above, see supra ¶¶ 55–61, the jury’s finding of the
(F)(6) cruelty aggravator for the murder of Jeni is supported by substantial
evidence. The jury’s (F)(6) finding for the deaths of Omar and Pablo is
also supported by substantial evidence.

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Opinion of the Court

1. (F)(2) Aggravator

¶65 Hernandez argues that his prior conviction for robbery/burglary,
which supported the jury’s (F)(2) finding, was a “non-violent offense” and
thus did not satisfy (F)(2)’s requirement of a “serious offense.” That
argument misses the mark because a serious offense need not be a violent
offense to support a finding of the (F)(2) aggravator. See A.R.S. § 13-
751(F)(2).

¶66 Before 1993, the (F)(2) aggravator applied when a “defendant was
previously convicted of a felony in the United States involving the use or
threat of violence on another person.” State v. McKinney, 185 Ariz. 567,
580 n.4, 917 P.2d 1214, 1227 n.4 (1996). The current version of the (F)(2)
aggravating circumstance, however, removed ambiguities created by “the
prior version’s more vague reference to crimes involving ‘violence.’” State
v. Martinez, 196 Ariz. 451, 461 ¶ 41, 999 P.2d 795, 805 (2000). By
substituting “serious offense,” the legislature intended to broaden the
scope of the (F)(2) aggravator to encompass prior serious convictions not
solely limited to crimes of violence.

¶67 Armed robbery/burglary is a “serious offense” for purposes of
§ 13-751(F)(2). See A.R.S. § 13-751(J)(8)–(9); State v. Johnson, 212 Ariz. 425,
438 ¶ 50, 133 P.3d 735, 748 (2006) (“A serious offense includes armed
robbery.”). The jury did not abuse its discretion by finding the (F)(2)
aggravator.

2. (F)(7)(a) Aggravator

¶68 Hernandez also contends that the (F)(7)(a) aggravator should not
apply because it “just means [that the] defendant was a recidivist, which
constitutes the majority of non-capital felons.” But this Court rejected this
argument in State v. Gretzler, 135 Ariz. 42, 57 n.2, 659 P.2d 1, 16 n.2 (1983).
The State introduced uncontroverted evidence that Hernandez was on
authorized release from prison at the time of the offense. The jury did not
abuse its discretion in finding the (F)(7)(a) aggravator.

B. Mitigating Circumstances

¶69 A defendant may present any information relevant to any
mitigation during the penalty phase, but has the burden to prove any
mitigating circumstance by a preponderance of evidence. See A.R.S. § 13-
751(C).

¶70 Hernandez presented evidence that he suffered from “traumatic

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Opinion of the Court

brain injury” rendering him less able to control aggressive impulses. But
the State countered with expert testimony that Hernandez’s experts
utilized outdated methodology in their brain imaging, and that even
though Hernandez may suffer from antisocial personality disorder, the
disorder did not affect his ability to control his actions.

¶71 In his allocution, Hernandez discussed his difficult childhood and a
family history burdened by limited resources, alcohol, and abuse.
Nevertheless, a juror could afford little mitigating weight to Hernandez’s
childhood because he was thirty-two years old when he killed Omar,
Pablo, and Jeni. See Nelson, 229 Ariz. at 191 ¶ 53, 273 P.3d at 643 (finding
the childhood mitigating factor of little consequence because the
defendant was thirty-five at the time of the murder).

¶72 Hernandez also explained his motive for the murders, some
criminal history, as well as his religious experiences and conversion.
Although these may constitute non-statutory mitigating circumstances, see
State v. Gallegos, 178 Ariz. 1, 19, 870 P.2d 1097, 1115 (1994), each juror has
discretion to determine how much mitigating weight to give them, Nelson,
229 Ariz. at 191 ¶ 54, 273 P.3d at 643.

¶73 The jury found four aggravators for each of the three murders —
including an aggravator for multiple murders. Even if we assume that
Hernandez sufficiently proved his alleged mitigating circumstances, we
cannot say the jury abused its discretion by determining that the
mitigation was not “sufficiently substantial to call for leniency” under
A.R.S. § 13-751(E).

IV. CONCLUSION

¶74 We affirm Hernandez’s convictions and sentences.5

5 Hernandez also lists eighteen constitutional claims, along with
prior decisions he identifies as rejecting them, which he states he seeks to
preserve for federal review. We decline to revisit these claims.

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