State v. Hernandez

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

VICTOR TED HERNANDEZ, Appellant.

Nos. 1 CA-CR 19-0646, 1 CA-CR 20-0526
(Consolidated)
FILED 8-11-2022

Appeal from the Superior Court in Maricopa County
No. CR2010-137021-001
The Honorable Erin O’Brien Otis, Judge (Retired)
The Honorable Patricia Ann Starr, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Andrew Stuart Reilly
Counsel for Appellee

The Susser Law Firm, PLLC, Chandler
By Adam M. Susser
Counsel for Appellant
 STATE v. HERNANDEZ
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Cynthia J. Bailey and Vice Chief Judge David B. Gass joined.

T H U M M A, Judge:

¶1 Defendant Victor Ted Hernandez appeals his first degree
murder conviction and resulting sentence to natural life in prison. Because
Hernandez has shown no reversible error, his conviction and sentence are
affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 On February 19, 2010, T.L.’s1 lifeless body was found burning
at the intersection of Baseline and Rooks Roads in Buckeye, Arizona. An
autopsy showed that T.L. had been shot seven or eight times with at least
two different guns, before his body was set on fire. Police interviewed B.N.,
who later provided eyewitness testimony identifying Hernandez, also
known as “Lil Chico.” B.N. and B.A., T.L.’s girlfriend, provided trial
testimony about what happened the day of the murder.

¶3 When B.A. and her sister picked T.L. up from work the day
he was killed, she recalled T.L. “was acting odd. He was in a rush to leave.”
On the ride home, T.L. took several calls, which left him “upset” and he
asked B.A. to drop him off at a restaurant because “[h]e was going to fight
someone.” B.A. took T.L. to the restaurant. Before he got out of the car, T.L.
gave B.A. his wallet, watch and phone and told her that if he did not “come
back then I could worry.” T.L. walked toward a white Chrysler 300, which
police later identified as belonging to Hernandez, and got in the backseat.
B.A. wrote down the license plate, which she later provided to the police.

¶4 B.N. testified that, on the day of the murder, he was living in
a back house in Avondale when he heard a car and saw three visitors,
Hernandez, T.L. and “Eddie Boy,” none of whom he had expected. The four
went into the two-room back house. Hernandez then asked to speak with
B.N. and “[w]e go outside. He asking me, he wanted to kill this dude, you

1Pseudonyms are used to protect identities. State v. Ewer, 250 Ariz. 561, 565
¶ 2 n.1 (App. 2021).

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know, straight up. And I was shocked.” B.N. testified that Hernandez
specifically asked if Hernandez could “smoke him.”

¶5 B.N. testified he tried to talk Hernandez out of it and was
“scared” and “worried.” Hernandez and B.N. went back into the house and
B.N. “tried to talk . . . to take the tension away.” B.N., who had been doing
yard work, went into the other room to change clothes. As he changed, B.N.
heard two or three gunshots from the other room. B.N. went back to the
other room to see T.L. “falling down, Chico shooting him. He falls down.”
B.N. testified: “I remember seeing [T.L.] running towards Chico, Chico
shooting him in the face, just shooting him, and he falls down towards
Chico. Falls down on the side. Chico bending down shooting him. Stopped
him, had a little cuss – little cuss words. And he turns around, starts
speaking – ignoring me, start speaking to Eddie Boy.” B.N. testified
Hernandez asked Eddie Boy if he was mad, not to worry and he would
clean it up.

¶6 T.L. then “started rushing towards the door” where B.N. was
standing. B.N. ran to close the door and heard two more louder gunshots.
B.N. then went to the back house and found T.L. in a “puddle of blood” and
Hernandez holding a different gun. Hernandez told B.N. he would help
him with the body. B.N. testified Hernandez reassured Eddie Boy “he
would take care of it.” Hernandez then told B.N. that “we had to take Eddie
Boy out of there, that Eddie Boy couldn’t be there.” When they tried to
leave, B.N. “took off in the car with them, jumped in the back seat.”
Hernandez and B.N. then dropped Eddie Boy at his house and went to
several stores where Hernandez bought cleaning supplies.

¶7 B.N. and Hernandez went back and cleaned up the house,
Hernandez wrapped T.L.’s body in sheets and duct tape, placed him in the
trunk of the Chrysler 300 and continued cleaning. B.N. recalled “Chico
picking up a piece of meat from the floor and putting it in his mouth,
chewing on it, showed it to me, offered me some, said it tastes good, and
was laughing about it.”

¶8 B.N. testified that he and Hernandez then drove west to
Buckeye. Hernandez then got out of the Chrysler 300, took T.L.’s body out
of the trunk, “poured some stuff on it, lit it up on fire, and we took off.” The
Buckeye Fire Department responded to reports of a brush fire and
discovered T.L.’s body. Forensic analysis of the bullets showed the use of at
least two different guns. The forensic examiner testified the bullets and
jacket suggested a 22-caliber gun and a 40-caliber gun.

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¶9 The day after the murder, Hernandez sold the Chrysler 300
on Craigslist. At trial, the buyer testified the Chrysler 300 was listed for
$6,000, but was worth about $15,000. Later in 2010, Hernandez was indicted
for T.L.’s murder. Nine years of pretrial litigation followed, much of which
occurred after the State provided notice of an intent to seek the death
penalty, which was later withdrawn. Trial began in March 2019 and lasted
41 days, resulting in a guilty verdict. In November 2019, Hernandez was
sentenced to prison for natural life and this timely appeal followed. This
court has appellate jurisdiction pursuant to Article 6, Section 9, of the
Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031 and 13-4033 (A)
(2022).2

DISCUSSION

¶10 Hernandez raises five issues on appeal, claiming reversible
error in: (1) admitting in evidence his rap lyrics and the water-well
recordings; (2) instructing the jury on accomplice liability; (3) prosecutorial
misconduct by the State; (4) removing Juror 5 for cause during deliberations
and (5) denying his motion for new trial. The court addresses these
arguments in turn.

I. Hernandez Has Shown No Error In Admitting His Rap Lyrics and
the Water-Well Recordings.

¶11 In April 2010, while Hernandez was in pretrial custody,
deputies confiscated rap lyrics that he had written. Hernandez moved to
preclude admission of the lyrics at trial, with the court granting the motion
in part but allowing the admission of specific lyrics relevant to the murder,
finding they were relevant, “highly probative” and not otherwise
excludable. The lyrics Hernandez wrote that the court admitted at trial are:

Little Chico. Enemies see me coming but there’s
no escaping.

Murder one I got that kite. This is my life, not a
[expletive] rap act.

Phearless Records they try to portray that I
sprayed that at your home boy [expletive]. My
40 Cal left him in a puddle of [expletive] and

2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

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then I split to collect my things. I come right
back and ate his brains.

I lit that fire.

Enemies turn zombies like in Thriller. It’s on me
to make it back to the camp. But if I never touch
down J. [Hernandez’ girlfriend in 2010] gots my
back. I want to be at home but I’m stuck in the
shu and that the truth.

A. cried. She turned five, asked why daddy is
buried alive. This ain’t good-bye cuz good-bye
is forever. We stick together in this weather
because it will get better.

¶12 Hernandez argues the court erred in admitting this evidence,
a ruling reviewed for an abuse of discretion. State v. Salamanca, 233 Ariz.
292, 294-95 ¶ 8 (App. 2013). “’Because the trial court is in the best position
to balance the probative value of the challenged evidence against its
potential for unfair prejudice,’ it has broad discretion to make that
determination.” Id. at 296 ¶ 17 (citing State v. Connor, 215 Ariz. 553, 564 ¶ 39
(App. 2007)). On the record presented, Hernandez has shown no error in
admitting the evidence.

¶13 Hernandez argues the rap lyrics had little probative value,
which was outweighed by their “incalculably and unfairly prejudicial”
nature. Hernandez, a prolific rapper, wrote many rap lyrics, but only the
one redacted stanza was admitted in evidence, with the court precluding
admission of several other of his lyrics. The court found that one redacted
stanza was relevant because the lyrics “appear to corroborate the testimony
of the State’s witness, [B.N.].” The court also found the lyrics were relevant
for a proper purpose, “to demonstrate that the author of the rap song lyrics
is the Defendant, as the lyrics are reflective of his life and actions.” See Ariz.
R. Evid. 404(b). The court rejected Hernandez’ Rule 403 objection, noting
the lyrics “may provide highly probative evidence of whether the
admissible document constitutes an ‘admission of guilt’ as to this murder.”

¶14 Hernandez argues that “[e]ven assuming arguendo that it had
some probative value, it was greatly outweighed by its danger of unfair
prejudice and impermissible character evidence.” But the lyrics that were
admitted, written by Hernandez after the murder, mention unique aspects
of the murder, including the use of a 40-caliber gun, that Hernandez left the
victim “in a puddle of [expletive],” and that he came “right back and ate his

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brains. I lit that fire.” Hernandez has not shown that the court was required
to preclude them based on Rule 403 concerns, or that the lyrics were
impermissible character evidence under Rule 404(b). Salamanca at 296 ¶ 17.

¶15 Hernandez’ reliance on a separate opinion in Jordan v. State,
212 So. 3d 817, 827 (Miss. 2016) (King, J., objecting) is unavailing. In Jordan,
a Mississippi Court of Appeals decision affirming defendant’s conviction
was affirmed where “[f]our of the justices of [the Mississippi Supreme]
Court are of the opinion that the judgment of the Court of Appeals should
be affirmed, and four are of the opinion that it should be reversed;
consequently, that judgment must be, and is, affirmed.” Id. Justice King,
objecting separately, questioned the admissibility of a video containing
threatening profanity, in which the defendant was an uncredited extra with
no speaking part. Id. at 820 ¶ 4. Jordan therefore did not involve the
defendant’s admissions (like Hernandez’ rap lyrics here), affirmed a
conviction and is not, in any event, binding on this court. Unlike Jordan,
given the relevance of the lyrics Hernandez wrote and the discretion
afforded the court under Rule 403, Hernandez has shown no error in their
admission.

¶16 While in pretrial custody, Hernandez was involved in an
unrelated prison gang investigation. As part of that investigation, deputies
placed recording devices in the jail to “capture the free flowing
conversation between inmates that was flowing in the water wells.” A
water-well is “sort of a hallway” located behind jail cells used for
maintenance and housing water pipes.

¶17 During one recorded conversation received in evidence,
Hernandez yelled to Eddie Boy in the cell next door that his trial strategy
was to convince the jury that there was no premeditation, hoping for a
second degree murder conviction. Hernandez unsuccessfully moved to
preclude this statement as an unreasonable search and seizure in violation
of his Fourth Amendment rights. The court found Hernandez did not have
a reasonable expectation of privacy while yelling to someone in the next cell
through the water-wells.

¶18 Hernandez argues the recording was prejudicial and obtained
in violation of his Fourth Amendment “right to be free from unreasonable
searches and seizures” while in pretrial detention. Citing Hudson v. Palmer,
468 U.S. 517, 525 (1984), State v. Jeffers, 135 Ariz. 404, 413 (1983), Bell v.
Wolfish, 441 U.S. 520, 546 n. 20 (1979) and State v. Martinez, 221 Ariz. 383
(App. 2009), the superior court found Hernandez “ha[d] not established a
Fourth Amendment violation because the jail hid recording devices in the

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jail vents and water wells, and obtained recorded statements of his
communication with other inmates.”

¶19 “[T]he Fourth Amendment proscription against unreasonable
searches does not apply within the confines of the prison cell. The
recognition of privacy rights for prisoners in their individual cells simply
cannot be reconciled with the concept of incarceration and the needs and
objectives of penal institutions.” Hudson, 468 U.S. at 526. Jail and “[p]rison
officials may inspect and examine the communications of inmates without
depriving them of their constitutional rights.” State v. Jeffers, 135 Ariz. 404,
413 (1983). More fundamentally, detainees have no reasonable expectation
of privacy when they shout from one cell to the other through water-wells.
Thus, Hernandez has not shown his privacy rights were violated.

¶20 Claiming the jail had no “internal security” justifications for
the recordings, and citing Grummett v. Rushen, 779 F.2d 491, 493-94 (9th Cir.
1985)), Hernandez argues the recordings were “primarily (if not exclusively)
for purposes of learning information about potential criminal activity, not
for mere jail security.” But the State provided, and the superior court
credited, “a legitimate interest in listening to the Defendant’s conversations
based on the security risk Mexican Mafia members and the Defendant pose
to other inmates in the jail,” as well as prison guards and visitors. The State
also showed that the jail (not the prosecutor) made the decision to surveil
Hernandez, which was unrelated to T.L.’s murder.

¶21 After weighing the arguments, the superior court found that
Hernandez had no reasonable expectation and had not established a Fourth
Amendment violation. In doing so, the court considered the State’s interest
in security, found it to be legitimate and admitted the evidence. On this
record, Hernandez has shown no error in admitting the water-well
recordings containing Hernandez’ own statements. See Hudson, 468 U.S. at
526; Jeffers, 135 Ariz. at 413.

II. The Accomplice Liability Instruction Was Not Erroneous.

¶22 In pretrial filings, Hernandez argued he was, at most, an
accomplice, claiming “his participation was relatively minor” and that he
“was relatively less culpable in light of the participation of others in the
offense.” Later, the State requested an accomplice liability jury instruction.
Hernandez objected, arguing that if the jury found he was an accomplice to
B.N., “they can’t come back and argue that a person they put on the stand
who testified is a liar . . . Because they put someone on the stand to testify
to the truth, they can’t now say that testimony is untrue.” The court denied

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the objection, noting an accomplice liability instruction was appropriate
given the jury could question B.N.’s credibility, adding that if the jury “can’t
be sure that Mr. Hernandez was the shooter, then the evidence supports a
finding of guilt as an accomplice.” The court gave an accomplice liability
jury instruction, and the jury found Hernandez guilty of first degree
murder without being asked to specify whether it was on an accomplice
liability theory.

¶23 Hernandez argues “[t]he evidence was insufficient to support
accomplice liability and the State was permitted to advance that theory for
the first time in closing argument with no prior notice or introduction of
evidence.” The record, however, is to the contrary. More than five years
before trial, Hernandez disclosed a notice of mitigating circumstances
claiming (among other things) he was merely an accomplice and citing
A.R.S. § 13-303. The State then requested an accomplice instruction in a
January 2019 filing, months before trial, and Hernandez never withdrew his
mitigating circumstance. Moreover, the final jury instructions (given by the
court before closing arguments) included an accomplice instruction. Thus,
the record does not support Hernandez’ lack of notice and due process
arguments. Cf. In re Jessie T., 242 Ariz. 556, 560 ¶ 18 (App. 2017) (cited by
Hernandez, but stating “the Sixth Amendment is satisfied when a
defendant (1) receives adequate notice that the State is pursuing accomplice
liability and (2) the State has not affirmatively misled the defendant”).

¶24 This court reviews jury instructions for an abuse of discretion
and “will not reverse a conviction based on the trial court’s ruling on a jury
instruction ‘unless we can reasonably find that the instructions, when taken
as a whole, would mislead the jurors.’” State v. Rutledge, 197 Ariz. 389 393 ¶
15 (App. 2000) (citations omitted). Citing State v. Noriega, 187 Ariz. 282
(App. 1996), Hernandez contends that “an improperly instructed jury,
particularly in the context of accomplice liability (and mere presence) is
cause for reversal.” Hernandez also suggests that, because the jury asked
about accomplice liability during deliberations, the instruction “clearly”
influenced their deliberations and “may also have been the sole basis for
finding of guilt.” On the record presented, Hernandez has shown no error.

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¶25 The instruction given is a proper accomplice instruction.
A.R.S. §§ 13–301, 303(A)(3). Hernandez argues the evidence did not support
such an instruction. But as Hernandez quotes in his brief, the State argued
during closing that the evidence would support an accomplice finding if
the jury agreed with the defense theory:

[I]t’s the State’s theory . . . that Mr. Hernandez
is the shooter in this case. . . . I anticipate that the
defense is going to stand up in closing argument
and argue that their client was not the shooter. .
. . I believe . . . the jury could conclude . . . that
even if, hypothetically speaking, [B.N. and
another individual] were the two shooters in
this case that Mr. Hernandez was still an
accomplice of them and assisted them in
committing the murder. . . . So, while no, it’s not
our theory that he’s an accomplice, I think the
evidence would support an instruction.

It would be circumstantial evidence, certainly,
but there is evidence that would support Mr.
Hernandez, if he is not the shooter, of being an
accomplice to premeditated murder.

Hernandez then argued during closing that B.N. played a role in the
murder.

¶26 Hernandez argues that the accomplice instruction
manufactured “a mutually exclusive factual scenario that [B.N.] was
somehow both truthful and untruthful regarding the circumstances of the
killing, and that the State then is no longer acting in good faith because it is
‘inviting the jury to reject’ the notion that [B.N.] (their own witness) is
telling the truth.” The accomplice instruction, however, allowed the jury to
consider all possibilities, including if they questioned B.N.’s credibility and
testimony and believed that Hernandez could have helped B.N. commit the
murder (instead of the other way around). In State v. Garza, when a similar
situation arose, the court did not find error. 216 Ariz. 56, 66 ¶ 43 (rejecting
challenge to accomplice liability, even when the State’s theory was that the
defendant “acted alone,” given Garza’s blood was found on the passenger
side of his car, suggesting that someone else drove the car away from the
crime scene; the defense argued that this person committed the murders.).

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¶27 B.N. testified that Hernandez shot and killed the victim.
Hernandez argued B.N. was the shooter. Given this defense theory, an
accomplice instruction was appropriate. Hernandez has therefore shown
no error in the court giving that instruction.

III. Hernandez Has Shown No Prosecutorial Misconduct.

¶28 Hernandez argues prosecutorial misconduct “tainted the
trial” and “prejudiced” Hernandez. Hernandez claims there were multiple
instances of improper questioning, suggestions, implications to the jury and
times when the State “engaged in personal attacks or inappropriate
behavior in the courtroom.”3 To show prosecutorial misconduct, “a
defendant must demonstrate that the prosecutor’s misconduct ‘so infected
the trial with unfairness as to make the resulting conviction a denial of due
process.” State v. Hughes, 193 Ariz. 72, 78-79 ¶ 25 (1998). “To reverse,
prosecutorial misconduct must be present, and a ‘reasonably likelihood
[must] exist[] that the misconduct could have affected the jury’s verdict,
thereby denying the defendant a fair trial.’” State v. Acuna Valenzuela, 245
Ariz. 197, 216 ¶ 66 (2018) (citations omitted). When a timely, specific
objection is made, claims of prosecutorial misconduct are reviewed for
harmless error; absent such an objection, the review is for fundamental
error resulting in prejudice. See id. Because there were objections to some
instances Hernandez references, those are addressed first, under the
harmless error standard.

¶29 Hernandez first argues the State improperly asked the
victim’s mother if the victim had “gotten involved in something he should
not have gotten involved in?” But Hernandez timely objected as
argumentative and the court sustained the objection, also directing the State
to avoid leading questions. Similarly, Hernandez’ assertion that, during a
bench conference outside the jury’s presence, the State asked a question that
could open the door to precluded testimony is negated by the court
sustaining Hernandez’ objection. Nor does an exchange arising out of the
State asking a witness whether she knew if Hernandez took any tires off the
Chrysler 300 before he sold it show error, a prerequisite for a harmless error
claim. See State v. Bible, 175 Ariz. 549, 588 (1993) (“When an issue is raised

3 Hernandez also “incorporates by reference and submits additional
instances raised to the trial court that would constitute impermissible
prosecutorial misconduct.” Such an attempted incorporation by reference
is inadequate to sufficiently develop the argument on appeal. See Sanchez,
200 Ariz. at 166 ¶ 8 (finding waiver for failure to develop an argument).

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but erroneously ruled on by the trial court, this court reviews for harmless
error.”). Similarly, given Hernandez’ argument at trial that the law
enforcement investigation was inadequate, he has shown no error in the
State asking about the background of the investigation (even assuming
Hernandez made a timely, specific objection to the questioning).

¶30 Hernandez next points to statements made during the State’s
initial closing arguments. Hernandez claims the State vouched for B.N. by
stating, “It’s up to you whether you’re going to believe him or not, but he
at least gives you some information about what happened. If we don’t put
him on the stand you have no information about what potentially
happened inside of that shed, at least direct evidence of such.” A lawyer,
prosecutor or defense counsel, stating witness credibility is “up to” the jury,
is a correct statement of the law, not improper vouching. And when
Hernandez objected to the argument, the State moved on and it was not
repeated.

¶31 Hernandez’ other arguments also fail. The prosecutor stating
during closing argument that an issue was “a red herring by the defense”
does not constitute improperly “directly attacking” Hernandez’ trial
counsel or counsel’s veracity. Similarly, Hernandez has not shown that
asserting in closing that a defense was “a strategy employed to distract
you” was improper. The State in its closing also stated, “If you are firmly
convinced based upon the evidence in this case that the defendant
deliberately killed [T.L.], you must find him guilty of first degree murder.”
Defense counsel objected, citing a misstatement of the burden and
instructions, which the court overruled. Hernandez has shown no
reversible error in the State’s initial closing argument.

¶32 During the State’s rebuttal closing argument, Hernandez
claims “the prosecutor suggested to the jury that they were obligated to find
Appellant guilty of first-degree murder, ignoring the possibility of lesser-
included offenses and misstating the State’s burden of proof.” Contrary to
Hernandez’ assertion, that portion of the State’s closing argument was:

The evidence in this case clearly shows that, in
fact, this was premeditated murder. If you are
firmly convinced, stand your ground.
Deliberate, talk to your fellow jurors, scrutinize
the evidence. Don’t compromise for the sake of
compromise on the most important civic duty
that we have. A second degree murder
conviction would not be a refle[ction] of the

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truth of what the defendant did to [T.L.] based
upon the evidence in this case. Your verdict in
this case will determine if the defendant’s plan
to get away with it succeeded.

Defense counsel objected, claiming he was opposing “her last statement
when she said that if you – essentially if you come back with second degree
murder then you’re not doing your job because then he gets away with it.”
The court, however, could have properly concluded that the argument was
based on the evidence before the jury and did not misstate the juror’s
obligations or the court’s instructions.

¶33 A superior court “is in the best position to determine the effect
of a prosecutor’s comments on a jury.” State v. Newell, 212 Ariz. 389, 402 ¶
61 (2006). At argument on Hernandez’ motion for a new trial, the court
specifically stated, “I want the record to be clear that the Court was
impressed with the presentation of the case from both sides, and felt that
nobody engaged in any kind of misconduct.” Hernandez has not shown
that the court erroneously resolved these instances of alleged misconduct.

¶34 For Hernandez’ remaining misconduct claims, he made no
timely objection and must show fundamental error resulting in prejudice.
“A defendant establishes fundamental error by showing that (1) the error
went to the foundation of the case, (2) the error took from the defendant a
right essential to his defense, or (3) the error was so egregious that he could
not possibly have received a fair trial.” State v. Escalante, 245 Ariz. 135, 142
¶ 21 (2018). Hernandez has not shown that the State’s assertions, during a
hearing outside the presence of the jury, about changing prosecutorial
theories constituted fundamental error resulting in prejudice. Nor has he
supported, by record evidence, his claim that in a bench conference, “the
prosecutor was condescendingly or mockingly smiling at the court
referencing Appellant’s trial counsel.” For these reasons, Hernandez has
failed to show prosecutorial misconduct resulting in fundamental error.

IV. Hernandez Has Not Shown That Removing Juror 5 Was Error.

¶35 On May 21, 2019, after dozens of witnesses had testified and
the parties rested, the court gave final jury instructions, including
accomplice and mere presence instructions. The final instructions were for
a non-capital first degree murder charge, consistent with the State’s
withdrawing its intent to seek the death penalty.

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¶36 On Tuesday, May 28, 2019, after deliberating for several days,
the jury sent the court a written question: “After last Thursday’s end of
deliberations, a juror felt threatened by a comment made [by] another juror.
As of now, there is a stalemate due to the one juror not wanting to proceed
if the other juror is present. How do you suggest we proceed?” After
conferring with counsel, the court discussed the matter on the record with
the jury, repeating the final instructions about deliberation and directing
jurors to proceed in a respectful manner.

¶37 The next Monday, June 3, 2019, the jury sent the court another
written question: “Your Honor, the jury is at an impasse. How would you
like us to proceed from this point?” After conferring with counsel, over
Hernandez’ objection, the court read the standard criminal impasse
instruction to the jury and deliberations continued. See RAJI (Criminal) 5th
Standard Instruction 53 (2019).

¶38 Later that same day, the jury sent the court two more written
questions: (1) “If an individual is found liable under accomplice liability of
first degree murder, is the accomplice guilty of the same charge?”; (2) “Can
we please have more information on definition of intentionally or with
intent to and definition of knowingly?” After conferring with counsel, the
court answered both questions in writing. As to first, the court wrote: “Yes.
Finding a person guilty of first-degree premeditated murder as an
accomplice is the same as finding that person guilty of first-degree
premeditated murder.” And for the second, the court wrote: “There are no
additional definitions that can be provided. However, if you believe that
additional argument from the parties would be helpful, please let us
know.”

¶39 The next day, the jury sent the court a written note: “We have
a juror who wishes to be excused, number 5.” When conferring with the
parties, Hernandez’ counsel stated, “what we’re trying to avoid is a
situation in which a juror is removed when there’s a reasonable possibility
that the removal is not because they’re no longer – they haven’t fulfilled
their duties as a juror but because they have and they don’t agree with other
jurors.” The court and parties agreed on a line of questioning, first of the
foreperson and then, separately, Juror 5.

¶40 In response to the court’s question, the foreperson said Juror
5 wanted to be excused because “[s]he feels she cannot continue due to
religious reasons.” Separately, and after admonishing her about the secrecy
of deliberations, the court then asked Juror 5 why she wanted to be excused.
Juror 5 answered,

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No. I cannot tell you why because if I tell you
why, you just instructed me and I can’t –
without – how would I put this? Well, I think it
initially started when we first started
deliberating and an incident happened and it
wasn’t taken care of. And because it wasn’t
taken care of, now it’s – it’s something that’s
starting to bother me because I think it should
have been taken care of and it wasn’t. And I
don’t believe I can truly deliberate right now
because it’s affecting me . . . .

Juror 5 added:

It’s just so much that happened, and I feel that
I’m being target and then I’m taking in
consideration my religion. And I know I’m not
supposed to take that into consideration, and I
know I’m not supposed to also take – regarding
the – the sentence. And now that’s where I’m at
because I feel I’m being targeted . . . So I can’t
proceed.

¶41 Upon further questioning, Juror 5 said she was threatened by
another juror who said he or she wanted to fight her. Hernandez then
objected, stating the questioning was “getting too far deep into what the
deliberations are . . .” After conferring with counsel, the court asked Juror
5, “Did you at any point in the deliberation room say that religion was
impairing your ability to deliberate with your fellow jurors?” Juror 5
answered “No.” The court then asked, “In any way are your thoughts on
potential punishment invading your deliberations – your ability to
deliberate with your fellow jurors?” Juror 5 again answered “No.” The
court then asked if it denied Juror 5’s request to be excused, would she
continue to meaningfully deliberate if there were further deliberations to be
had, and she said “Yes.” Juror 5 then returned to the jury room, and the
court discussed the issue with the parties.

¶42 During that discussion between the court and the parties,
Juror 5 provided the court the following written note: “I would consider
staying, I truly believe the outcome would be the same. And after thinking
about everything that was said to me, I did say in the moment religious [sic]
would play a rol[e] after I was emotion[al] and most of the jury attacking
me.” After reviewing the note with counsel, the court noted concerns that

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 STATE v. HERNANDEZ
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Juror 5’s statements during questioning conflicted with the note.
Hernandez objected to further questioning of Juror 5, while the State sought
to question the other jurors. The State then asked that Juror 5 be removed.
The court took no further action that day.

¶43 After a couple of days of recess, over Hernandez’ objection,
the court again questioned the foreperson. The foreperson responded that
Juror 5 had told the other jurors that she was considering religion and
punishment in her deliberation. The court then brought Juror 5 back and
asked her, “do you feel that you can continue to discuss the evidence with
your fellow jurors if you were left on this jury?” Juror 5 said that she could.
The court then asked if any of Juror 5’s beliefs or potential punishment
ramifications would impair her ability to consider the evidence, and she
said it would not.

¶44 The court and parties then agreed upon language to instruct
the jury to continue deliberations if they still had deliberations to finish.
Because of scheduling difficulties, the jury was excused until July 8, 2019.
On the afternoon of July 8, the jury sent the court the following written
question: “If a juror ignores the law when deliberating a verdict, should that
juror be dismissed?” The State asked the court to bring in the entire jury,
reread the relevant jury instructions on following the law and ask if anyone
could not follow the law. Hernandez’ counsel moved for a mistrial, which
the court denied, and then offered suggestions on questions the court
planned to ask the jury.

¶45 The court then brought the jury back into open court and read
the “Duty of Jury” instruction, adding “Essentially this is saying you are
required to follow the jury instructions as well as the law contained within
the jury instructions. So my question is: If you cannot follow the law as
stated in the instructions, please raise your hand?” After several jurors
apparently looked at Juror 5, Juror 5 then raised her hand in response to the
question, asserting she could not follow the law as stated in the instructions.

¶46 Given that response, the issue was what should happen next.
Contrary to his argument on appeal, Hernandez did not ask that the court
“charg[e] the jury to return to deliberations,” which would appear to have
been error given Juror 5’s definitive response. Instead, Hernandez asked for
a mistrial, the most extreme possible remedy, State v. Adamson, 136 Ariz.
250, 262 (1983) (“A declaration of a mistrial is the most dramatic remedy for
trial error”), which the court denied. The State asked the court to dismiss
Juror 5, the defense stated that it had no other position and objected to any
more questioning of Juror 5. The court granted the State’s request,

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 STATE v. HERNANDEZ
Decision of the Court

removing Juror 5. The court explained the procedural history and its
reasoning in considerable detail:

In talking about Juror Number 5, there was
some ambiguity going back to the prior record
that the Court had with a question that she
submitted personally to the Court versus
answers she had given in Court. I brought her
in. We cleared that up. The Court made a
determination at that point, based on follow up
questions with her, that she indicated she
would be able to deliberate. That she was still
willing to deliberate. And uphold her duty as a
juror. And because she gave those answers and
because of some of the other record that was
made, the Court left her on. The Court found at
the time that was the appropriate thing to do . .
.

I know that the defense asked for a mistrial. The
Court didn’t believe that this rose to the level of
a mistrial. The Court wanted to, through its
record, clarify whether or not this came down to
an interpretation of the instruction of the law or
an unwillingness to follow the law. I felt the
suggestion that was proposed by [the State] was
the most benign way to get that answer and to
make a record as to that. I read the instruction .
..

I will agree with the Defense though that the
Court observed a few jurors, not all, but a few,
turn around to her [when asked to raise their
hand if they cannot follow the law as stated in
the instructions] . . . [A]t which time she did
raise her hand and I clarified on the record that
it was Juror Number 5 in response, if you cannot
follow the law as stated in the instructions,
please raise your hand. And she raised her
hand. So at this particular time, the Court now
believes her ability not to follow – her inability,
I should say, to follow the instructions and the
law is grounds to have her removed.

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 STATE v. HERNANDEZ
Decision of the Court

After reconstituting the jury, the court properly instructed the jury to start
deliberations anew. After deliberations, the jury found Hernandez guilty of
first degree murder.

¶47 Hernandez timely moved for new trial challenging, among
other things, the removal of Juror 5. The motion attached a three-page
declaration by Juror 5, which provided Juror 5’s perceptions, mental
process and recollection of jury deliberations. The State moved to strike the
declaration. See Ariz. R. Crim. P. 24.1(d) (“the court may not receive . . . an
affidavit that relates to the subjective motives or mental process leading a
juror to agree or disagree with the verdict”). Over Hernandez’ objection,
the court granted the motion to strike, a ruling he does not challenge on
appeal.4 After full briefing and oral argument, the superior court rejected
his post-verdict challenge to the removal of Juror 5.

¶48 Hernandez argues the “court erred by removing Juror #5 for
cause rather than declaring a mistrial or charging the jury to return to
deliberations.”5 “The matter of excusing jurors is committed to the sound
discretion of the trial court and, absent clear and prejudicial abuse of that
discretion, its determination will not be disturbed on appeal.” State v. Milke,
177 Ariz. 118, 122 (1993) (citations omitted). Rule 18.5(h)(3) gives trial
judges “broad discretion to excuse a deliberating juror ‘due to inability or
disqualification to perform required duties,’ and to substitute an alternate
juror.” State v. Kolmann, 239 Ariz. 157, 162 ¶ 17 (2016). “If the court excuses
a deliberating juror due to the juror’s inability or disqualification to perform
the required duties, the court may substitute an alternate juror to join the
deliberations . . . . If an alternate joins the deliberations, the court must

4 Juror 5 retained counsel and moved for a mistrial, seeking a “remedy for
a violation of her constitutional right to serve as a juror” and arguing the
“jury was hung.” In response, the State moved to strike Juror 5’s motion for
mistrial. Although the record does not include a ruling on these motions,
the court did not grant Juror 5’s motion for mistrial. See State v. Hill, 174
Ariz. 313, 323 (1993) (“A motion that is not ruled on is deemed denied by
operation of law.”) (citing cases).

5 Hernandez begins this argument by stating that “[r]ather than repeat them

here, Appellant’s underlying Motion for New Trial adequately laid out the
procedural and factual history of the trial court’s dealings with Juror #5
once the jury was charged to begin deliberations.” Any undeveloped
argument Hernandez offers is waived. See Sanchez, 200 Ariz. at 166 ¶ 8.

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 STATE v. HERNANDEZ
Decision of the Court

instruct the jury to begin its deliberations anew.” Ariz. R. Crim. P.
18.5(h)(3).

¶49 To be sure, the circumstances surrounding Juror 5 were
unusual. From the record presented, however, the court proceeded
carefully and cautiously in addressing the issue. Hernandez claims the
court should not have dismissed Juror 5 and that it “committed prejudicial
error by removing the offending juror, despite the warnings contained in”
United States v. Symington, 195 F.3d 1080 (9th Cir. 1999) “and the
proscription against removing a juror whose position might have any
possibility of being related to the merits of the case.” Symington, applying
the Federal Rules of Criminal Procedure, is not binding here. Moreover, the
facts in Symington differ substantially from this case.

¶50 In Symington, the jury sent the court a note seeking direction
because “[o]ne juror has stated their final opinion prior to review of all
counts.” Id. at 1083. Another note followed, stating the jury felt that the juror
could not properly participate in discussions due to her inability to focus
and recall, her refusal to discuss her views and other concerns about her
comprehension and retention of information, adding that it appeared the
juror “had their mind made up.” Id. Another note from an individual juror
asked that the court release this juror because she would cause the jury to
hang. Id. at 1088. With no further evidentiary basis noted, the court then
found that the juror was either unwilling or unable to deliberate and
replaced her, and a reconstituted jury found the defendant guilty. Id. On
appeal, the Ninth Circuit vacated the conviction, stating, “that if the record
evidence discloses any reasonable possibility that the impetus for a juror’s
dismissal stems from the juror’s views on the merits of the case, the court
must not dismiss the juror.” Id. at 1087.

¶51 In this case, Juror 5 at first conveyed issues about punishment,
religious concerns, personality issues with other jurors and herself and had
asked to be removed herself because it was “too much” and that she was
not sleeping. When asked by the court, Juror 5 first said she could continue
to deliberate, and the court allowed her to do so. Later, however, the jury
sent the court a question asking, “If a juror ignores the law when
deliberating a verdict, should that juror be dismissed?” Following that
question, and after conferring with counsel, the court asked the entire jury
if anyone could not follow the law in the instructions. Juror 5 said that she
could not.

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 STATE v. HERNANDEZ
Decision of the Court

¶52 Unlike Symington, none of this suggests that Juror 5 was
removed because of her views of the merits of the case. Instead, she was
removed when, in answering the court’s question, she said she could not
follow the law in the instructions. Juror 5 did not state her views on the
merits of the case, she did not state what her verdict would have been or
even that she was ready to return a verdict and she did not state that she
was being coerced by the other jurors to return a specific verdict. Instead,
she told the court she could not follow the law in the instructions, meaning
the court had a duty to remove her because of her “inability . . . to perform
the required duties.” Ariz. R. Crim. P. 18.5(h)(3).

¶53 The court could have declared a mistrial and ordered a new
trial. Instead, given a mistrial is the most extreme remedy, the court
dismissed Juror 5, reconstituted the jury and instructed it to begin its
deliberation anew. The court was authorized to do so, Ariz. R. Crim. P.
18.5(h)(3), and Hernandez has shown no abuse of discretion in the court
selecting that remedy. On this record, Hernandez has shown no abuse of
discretion in the court’s decision to remove Juror 5, to reconstitute the jury
and to have the reconstituted jury, after receiving further instructions on
deliberations, proceed to verdict. Milke, 177 Ariz. at 122.

V. Hernandez Has Shown No Error in the Denial of His Motion for
New Trial.

¶54 Along with challenging the removal of Juror 5, Hernandez
also requested a new trial based on the accomplice liability instruction, the
conviction by a death qualified jury, the admission of the water-well
recording, claims of prosecutorial misconduct and sufficiency of the
evidence claims. After full briefing and oral argument, the court denied the
motion. A new trial may be granted if “the verdict is contrary to law or the
weight of the evidence.” Ariz. R. Crim. P. 24.1(c)(1). “Motions for new trial
are not favored, and the trial court’s denial of a motion for new trial will
not be disturbed absent an abuse of discretion.” State v. Gulbrandson, 184
Ariz. 46, 63 (1995). The superior court judge “sits as a thirteenth juror, and
[she], as well as the jury must be convinced that the weight of the evidence
sustains the verdict, or it is [her] imperative duty to set it aside.” State v.
Fischer, 242 Ariz. 44, 49 ¶ 14 (2017) (citation omitted).

¶55 To the extent Hernandez’ motion for new trial claimed error
based on the issues discussed above, the above discussion establishes the
superior court properly denied the motion. To the extent Hernandez’
motion asserted error on grounds he does not challenge on appeal, those
grounds are waived. See State v. Moody, 208 Ariz. 424, 452 n.9 ¶ 101 (2004).

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 STATE v. HERNANDEZ
Decision of the Court

Hernandez does claim on appeal that there was insufficient evidence to
establish premeditation because B.N., the State’s lone eyewitness, “testified
he was not in the room for the first shots fired, did not see what happened
until moments later when he re-entered the room to discover T.L. already
shot.” Hernandez claims that, “[a]t best, the State had established a prima
facie case for 2nd Degree Murder, but there was insufficient evidence of true
premeditation with actual reflection.” Hernandez has not shown the
superior court erred in denying his motion for new trial on that ground.

¶56 The trial evidence showed that Hernandez repeatedly
contacted T.L. earlier in the day, T.L. told B.A. that if he didn’t come back
then she could worry and B.N. testified that Hernandez asked, in advance,
to “smoke” T.L. B.N. also testified that there was a break between
Hernandez shooting T.L. the first time and the second round of shots that
killed him. B.N. stated that in between the sets of shots, Hernandez
comforted Eddie Boy, asking him if he was angry and telling him he would
take care of it. T.L. then tried to escape and Hernandez shot him several
additional times. The court also properly instructed the jury that

“Premeditation” means that the defendant
intended to kill another human being or knew
he would kill another human being, and that
after forming that intent or knowledge,
reflected on the decision before killing. It is this
reflection, regardless of the length of time in
which it occurs, that distinguishes first degree
murder and second degree murder. The
difference between first degree murder and
second degree murder is that second degree
murder does not require premeditation. An act
is not done with premeditation if it is the instant
effect of a sudden quarrel or heat of passion. The
time needed for reflection is not necessarily
prolonged, and the space of time between the
intent or knowledge to kill and the act of killing
may be very short.

“The necessary premeditation . . . may be as instantaneous as successive
thoughts of the mind and may be proven by either direct or circumstantial
evidence.” State v. Kreps, 146 Ariz. 446, 449 (1985). On this record, there was
sufficient evidence for the jury to find that Hernandez shot T.L. with
premeditation, not the result of a quarrel or a heat of passion. Thus,

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 STATE v. HERNANDEZ
Decision of the Court

Hernandez has not shown that the court erred in denying his motion for
new trial.

CONCLUSION

¶57 Hernandez’ conviction and resulting sentence are affirmed.

AMY M. WOOD • Clerk of the Court
FILED: AA

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