SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-10-0358-AP
Appellee/Cross-Appellant, )
) Maricopa County
v. ) Superior Court
) No. CR2000-090114
FABIO EVELIO GOMEZ, )
)
Appellant. )
) O P I N I O N
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable Roland J. Steinle, Judge
AFFIRMED
________________________________________________________________
THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Division Chief Counsel
Jeffrey A. Zick, Section Chief Counsel
Capital Litigation Section
Laura Chiasson, Assistant Attorney General Tucson
Attorneys for State of Arizona
MICHAEL J. DEW ATTORNEY AT LAW Phoenix
By Michael J. Dew
Attorney for Fabio Evelio Gomez
________________________________________________________________
B A L E S, Vice Chief Justice
¶1 This automatic appeal concerns Fabio Evelio Gomez’s
2010 death sentence for murdering Joan Morane. We have
jurisdiction under Article 6, Section 5(3) of the Arizona
Constitution and A.R.S. §§ 13–4031, -4032, and -4033(A) (2011).
FACTS AND PROCEDURAL BACKGROUND
¶2 Joan lived in an apartment complex where Gomez also
lived with his girlfriend and infant son. In December 1999, a
friend found Joan’s door unlocked and furniture in disarray.
Joan was missing. That same day, a neighbor heard pounding on
Gomez’s bathroom wall and a woman screaming. When questioned by
police, Gomez said he had been home all day and had not seen
Joan or heard any screaming. The next day, police saw blood on
an inflatable raft that Gomez had placed in his girlfriend’s
car.
¶3 When Gomez allowed police to enter his apartment, they
saw blood on the living room carpet and the bathroom walls.
Gomez initially told police that his girlfriend had cut her
foot, but later said the blood was from a cat he had killed
because it had scratched his son’s face. Police discovered
Joan’s body in a dumpster at the apartment complex. DNA testing
identified Gomez’s semen in Joan’s body and Joan’s blood in
Gomez’s apartment.
¶4 In 2001, a jury convicted Gomez of first degree
murder, kidnapping, and sexual assault. Before he was
sentenced, the United States Supreme Court held that Arizona’s
death penalty statutes were unconstitutional because they
allowed a judge, rather than a jury, to find aggravating factors
that could result in a death sentence. Ring v. Arizona, 536
U.S. 584 (2002). The legislature then amended the death penalty
statutes. Based on these amendments, the trial court reset the
2
matter for a jury sentencing hearing.
¶5 In 2003, a second jury found that the murder was
especially cruel and depraved, see A.R.S. § 13-751(F)(6)(2011),
and determined that Gomez should be sentenced to death. State
v. Gomez, 211 Ariz. 494, 498 ¶ 16, 123 P.3d 1131, 1135 (2005).
This Court affirmed Gomez’s convictions and his sentence for
sexual assault. Id. at 505 ¶ 53, 123 P.3d at 1142. The Court
vacated Gomez’s death sentence because he had been shackled in
the jury’s presence contrary to Deck v. Missouri, 544 U.S. 622
(2005), and also vacated his aggravated sentence for kidnapping.
Gomez, 211 Ariz. at 505 ¶¶ 51, 53, 123 P.3d at 1142.
¶6 On remand, a third jury found the (F)(6) “especially
cruel” aggravator and determined Gomez should be sentenced to
death for Joan’s murder; the trial court also resentenced him
for the kidnapping.
DISCUSSION
A. Revocation of Pro Per Status
¶7 Gomez argues that, after the case was remanded for
resentencing, the trial court erred by revoking his pro per
status and appointing counsel to represent him. At the initial
sentencing trial, Gomez represented himself until closing
arguments, when he chose to be represented by advisory counsel.
Gomez, 211 Ariz. at 498 ¶ 16, 123 P.3d at 1135. On remand in
2006, the trial court granted Gomez’s request to represent
3
himself in the resentencing and appointed a mitigation expert
and advisory counsel to assist him. Nearly three years later,
the trial court revoked Gomez’s pro per status, noting that
Gomez had been unable to comply with the court’s deadlines and
the disclosure rules for criminal cases.
¶8 A trial court’s decision to revoke a defendant’s self-
representation is reviewed for an abuse of discretion. See
State v. Martin, 102 Ariz. 142, 146, 426 P.2d 639, 643 (1967).
“The right to counsel under both the United States and Arizona
Constitutions includes an accused’s right to proceed without
counsel and represent himself,” State v. Lamar, 205 Ariz. 431,
435 ¶ 22, 72 P.3d 831, 835 (2003), “but only so long as the
defendant ‘is able and willing to abide by the rules of
procedure and courtroom protocol.’” State v. Whalen, 192 Ariz.
103, 106, 961 P.2d 1051, 1054 (App. 1997) (quoting McKaskle v.
Wiggins, 465 U.S. 168, 173 (1984)).
¶9 The trial court revoked Gomez’s right to self-
representation only after repeatedly admonishing him to comply
with court rules and deadlines and that noncompliance could
result in the loss of his pro per status. In May 2007, after
Gomez had represented himself for ten months, the trial court
instructed Gomez, his advisory counsel, and his mitigation
consultant that they needed to set a realistic schedule for
completing their mitigation investigation so the court could set
4
a trial date. The mitigation specialist responded that he would
need time to travel to the Dominican Republic (where Gomez lived
until 1987) and elsewhere outside Arizona to interview people.
In August 2007, the court set a “firm” trial date for September
2, 2008; set a disclosure deadline; and told Gomez that, if he
failed to follow the rules and prepare for the resentencing
trial, his pro per status would be revoked.
¶10 In May 2008, Gomez told the court that he needed at
least another eighteen months to prepare. On the recommendation
of a mitigation special master, the trial court reset the trial
for June 1, 2009. The court again warned Gomez to comply with
the court rules and that his pro per status would be revoked if
he was not prepared on the rescheduled date. After advisory
counsel told the court that the defense would get a psychologist
expert and complete testing of Gomez by November 2008, the
mitigation special master set a deadline of November 15, 2008
for completing all psychological testing. Despite this
deadline, Gomez twice failed to meet with defense psychologists
who came to interview him.
¶11 In November 2008, the trial court denied Gomez’s
motion to change advisory counsel and again warned Gomez that he
would lose the right to represent himself if he did not follow
court rules. The next month, the court denied Gomez’s request
to extend the discovery deadlines; ordered Gomez to make all
5
required disclosures by January 23, 2009; and affirmed the June
1, 2009 trial date. In violation of that order and Rule 15.2 of
the Arizona Rules of Criminal Procedure, Gomez, in January 2009,
disclosed the names of some 360 witnesses for the resentencing
trial, including a neuropsychologist and a psychologist, without
also disclosing any expert reports. The listed witnesses
included more than 150 “out of state character witnesses,” more
than 70 police officers, Gomez’s former defense attorneys, 2
former Arizona attorneys general, and a former Arizona governor.
The disclosure did not include addresses for the witnesses. It
suggested that Gomez intended to offer evidence challenging the
police investigation of the murder or the validity of his
convictions, matters that the trial court had told Gomez were
not at issue in the resentencing proceeding.
¶12 After the State moved to obtain the required
disclosures, the trial court gave Gomez until March 25, 2009 to
“fully comply with Rule 15.2” and again warned Gomez that his
failure to follow the rules could result in loss of his pro per
status. On March 25, Gomez filed a notice again listing
hundreds of witnesses; he included telephone numbers or
addresses for about eighty. At a hearing on March 30, he told
the court that he “still [had] many other things” he needed to
do and that the identified neuropsychologist and psychologist
experts had not yet examined him. Advisory counsel subsequently
6
disclosed two new psychologist experts and told the court that
these experts would examine Gomez in April and their reports
would be ready before the June 1, 2009 trial date. Noting that
this timetable would allow the State little time to obtain
rebuttal evidence, the court set a hearing to show cause why it
should not revoke Gomez’s pro per status and assign counsel to
represent him.
¶13 At the April 14, 2009 show cause hearing, Gomez said
he had done everything he had been told to do, he wished to
continue representing himself, and he was ready to proceed with
his resentencing trial. Finding that Gomez had been unable to
comply with Rule 15, the trial court revoked his pro per status
and reset the trial date for September 2009. The court also
appointed the two lawyers who had served as advisory counsel
since 2006 (Herman Alcantar, Jr. and Christopher Flores) to
represent Gomez. The trial was subsequently postponed due to
conflicts in the attorneys’ schedules and did not occur until
September 2010.
¶14 Gomez argues that the trial court erred in revoking
his pro per status for several reasons. First, he contends that
he complied with Rule 15’s disclosure requirements and that, if
he failed to do so, the trial court should have precluded his
witnesses rather than revoke his pro per status. Second, he
states that his appointed counsel did not add to his pro per
7
disclosures and did not ultimately present any experts, and that
the trial did not take place until seventeen months after his
pro per status was revoked. Finally, he argues that revocation
is not appropriate unless a pro per defendant engages in
“serious obstructionist conduct” in the courtroom, citing United
States v. Johnson, 610 F.3d 1138, 1144 (9th Cir. 2010).
¶15 We disagree. “[A] defendant who proves himself
incapable of abiding by the most basic rules of the court is not
entitled to defend himself.” Deck, 544 U.S. at 656.
Accordingly, a trial court “may terminate self-representation by
a defendant who deliberately engages in serious and
obstructionist misconduct.” Faretta v. California, 422 U.S.
806, 834 n.46 (1975). As Faretta acknowledges, a self-
represented defendant must not only respect the dignity of the
courtroom, but also “comply with relevant rules of procedural
and substantive law.” Id. Thus, a trial court may revoke pro
per status for serious violations of court orders and rules even
if the conduct occurs outside a courtroom proceeding.
¶16 Gomez demonstrated over several years that he could
not comply with court deadlines and the disclosure rules. The
trial court repeatedly warned Gomez that his noncompliance could
result in loss of pro per status. The trial court revoked that
status only after it had become evident that Gomez’s continued
self-representation would undermine the court’s authority and
8
ability to conduct the proceeding in an efficient and orderly
manner. Cf. Whalen, 192 Ariz. at 107-08, 961 P.2d at 1055-56
(upholding trial court’s revocation of pro per status when
defendant failed to comply with a court order to conduct defense
from the front of courtroom). That the trial court might have
precluded witnesses as a sanction for Gomez’s violations of Rule
15.2 does not mean that the court was prevented from revoking
his pro per status. Gomez’s conduct gave the trial court ample
grounds to revoke his pro per status in April 2009 - a
conclusion that is not affected by the later postponement of the
trial until September 2010 or by Gomez’s assertions that his
appointed counsel did not provide any additional disclosures and
ultimately did not present expert witnesses.
¶17 The trial court did not abuse its discretion by
revoking Gomez’s pro per status and appointing counsel to
represent him.
B. Denial of Requests for Change of Counsel
¶18 Gomez argues that the trial court erred by not holding
an evidentiary hearing before denying requests by him and his
lawyer for the appointment of new counsel. We review a trial
court’s decision to deny a request for new counsel for abuse of
discretion. State v. Moore, 222 Ariz. 1, 15 ¶ 77, 213 P.3d 150,
164 (2009).
¶19 The Sixth Amendment guarantees criminal defendants the
9
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.’” State v. Torres, 208
Ariz. 340, 342 ¶ 6, 93 P.3d 1056, 1058 (2004) (quoting State v.
Moody, 192 Ariz. 505, 507 ¶ 11, 968 P.2d 578, 580 (1998)). A
defendant’s Sixth Amendment right to counsel is violated “when
there is a complete breakdown in communication or an
irreconcilable conflict between a defendant and his appointed
counsel.” Id. “Conflict that is less than irreconcilable,
however, is only one factor for a court to consider in deciding
whether to appoint substitute counsel.” State v. Cromwell, 211
Ariz. 181, 186 ¶ 29, 119 P.3d 448, 453 (2005).
¶20 On December 8, 2009, nearly five weeks before the
resentencing trial was then scheduled to begin, Gomez filed a
pro per “motion for change of counsel.” He alleged that
Alcantar, his appointed lead counsel, had not visited him in
more than a year, had not devoted enough time to prepare the
case, and was unprofessional. Gomez further alleged that he did
not trust Alcantar because the lawyer had submitted excessive
bills while acting as advisory counsel and had not deposited
money into Gomez’s account for stamps and supplies. Gomez also
asserted that Flores, his other attorney, was not qualified to
handle a death penalty case. Finally, Gomez complained that he
had “been subjected to the t[y]pical unethical actions of [an]
10
irresponsible Court appointed defense attorney . . . with whom
[Gomez] has an actual major conflict of interest, and an
irredeemable client-attorney relationship.”
¶21 On December 18, 2009, attorney Christopher Dupont
filed a “motion to determine counsel,” stating that he was
specially appearing because the Consulate of the Dominican
Republic intended to retain him to represent Gomez at the
resentencing hearing. This motion criticized Alcantar’s
representation, asserted that there had been a complete fracture
in Gomez’s relationship with his counsel, and requested an
evidentiary hearing. At two subsequent hearings, however,
DuPont said he would not represent Gomez.
¶22 On February 4, 2010, Alcantar filed a Motion to
Withdraw as Counsel of Record. This motion alleged that Dupont
had “broken any confidence Mr. Gomez had in his legal team” and
“poisoned” counsel’s relationship with Gomez, specifically
noting difficulties the defense team had communicating with
mitigation witnesses. Alcantar claimed that “the defendant’s
family in the Dominican Republic will no longer speak to the
Mitigation Specialist because she [sic] was informed . . . that
the defense team was not helping Mr. Gomez.”
¶23 Three weeks later, the court held a pretrial
conference attended by Gomez, Alcantar, and DuPont. The court,
without objection, announced that it would decide the pending
11
matters without an evidentiary hearing or oral argument. It
struck Dupont’s motion to determine counsel and denied
Alcantar’s motion to withdraw. The court also denied Gomez’s
motion for change of counsel, finding “an insufficient showing
in the motion to demonstrate that a change of counsel is
necessary, especially considering the age of the case and the
timing of the motion in this matter.”
¶24 Relying on Torres, Gomez now argues that the trial
court was required to hold an evidentiary hearing to consider
the specific allegations in his motion for change of counsel.
He further contends that both his motion and Alcantar’s motion
to withdraw alleged “an irretrievable breakdown of the attorney-
client relationship.”
¶25 “[T]o protect a defendant’s Sixth Amendment right to
counsel, a trial judge has the 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. But “[t]he nature of the
inquiry will depend upon the nature of the defendant’s request.”
Id. at ¶ 8. “[G]eneralized complaints about differences in
strategy may not require a formal hearing or an evidentiary
proceeding.” Id. Before ruling on a motion for change of
counsel, a trial court should consider
whether an irreconcilable conflict exists between
counsel and the accused, and whether new counsel would
be confronted with the same conflict; the timing of
12
the motion; inconvenience to witnesses; the time
period already elapsed between the alleged offense and
trial; the proclivity of the defendant to change
counsel; and quality of counsel.
State v. LaGrand, 152 Ariz. 483, 486-87, 733 P.2d 1066, 1069-70
(1987).
¶26 In requiring a hearing in Torres, the Court noted that
the defendant had alleged “that he could no longer speak with
his lawyer about the case, he did not trust him, he felt
threatened and intimidated by him, there was no confidentiality
between them, and his counsel was no longer behaving in a
professional manner.” Torres, 208 Ariz. at 342 ¶ 2, 93 P.3d at
1058. We held that the trial court abused its discretion by
summarily denying a motion for change of counsel without
inquiring into the “specific factual allegations that raised a
colorable claim that he had an irreconcilable conflict with his
appointed counsel.” Id. at 343 ¶ 9, 93 P.3d at 1059.
¶27 The facts of this case are distinguishable from
Torres. Gomez’s motion did not allege facts suggesting that
there had been a complete breakdown in communication or an
irreconcilable conflict. “A single allegation of lost
confidence in counsel does not require the appointment of new
counsel, and disagreements over defense strategy do not
constitute an irreconcilable conflict.” Cromwell, 211 Ariz. at
186 ¶ 29, 119 P.3d at 453. Nor did Alcantar’s motion to
13
withdraw allege specific facts suggesting a “completely
fractured relationship.” Id. Instead, it contended that Dupont
had made it difficult for the defense to communicate with
mitigation witnesses and had undermined Gomez’s confidence in
his legal team.
¶28 Moreover, in denying the requests for change of
counsel, the trial court considered the LaGrand factors and
Alcantar’s written responses to Gomez’s allegations and Dupont’s
motion. For example, Alcantar discussed interviews done by the
mitigation specialist, motions Alcantar intended to file before
trial, why he had not more frequently visited Gomez at the jail
(Alcantar said that Gomez had imposed restrictions on the visits
and persisted in discussing matters not at issue in the
resentencing), and his providing stamps to Gomez and depositing
money in Gomez’s jail account. The State also provided
information to the court about the number of times that the
mitigation specialist, the defense investigator, or counsel had
gone to the jail to visit Gomez. When the trial court announced
it intended to decide the matters on the pleadings, neither
Gomez nor any lawyer requested an evidentiary hearing to present
additional information.
¶29 A trial judge is not required to hold an evidentiary
hearing on a motion for change of counsel if the motion fails to
allege specific facts suggesting an irreconcilable conflict or a
14
complete breakdown in communication, or if there is no
indication that a hearing would elicit additional facts beyond
those already before the court. See LaGrand, 152 Ariz. at 486,
733 P.2d at 1069 (noting that “a request for new counsel should
be examined with the rights and interest of the defendant in
mind tempered by exigencies of judicial economy”). The trial
court did not abuse its discretion when it denied the requests
for change of counsel without holding an evidentiary hearing.
C. Sufficiency of Evidence for (F)(6) Aggravator
¶30 Gomez argues that the State did not present sufficient
evidence to prove the murder was especially cruel. This
argument is subsumed within our independent review, because we
determine de novo whether the evidence establishes an
aggravating circumstance beyond a reasonable doubt. See State
v. Hargrave, 225 Ariz. 1, 13 ¶ 41, 234 P.3d 569, 581 (2010).
D. Independent Review
¶31 Because Gomez committed the murder before August 1,
2002, we independently review his death sentence. See A.R.S.
§ 13-755(A).
1. Aggravating Circumstances
¶32 The State alleged that the murder was “especially
cruel” for purposes of the (F)(6) aggravating circumstance. To
establish especial cruelty, “the state must prove that ‘the
victim consciously experienced physical or mental pain prior to
15
death, and the defendant knew or should have known that
suffering would occur.’” State v. Prince, 226 Ariz. 516, 539
¶ 97, 250 P.3d. 1145, 1168 (2011) (quoting State v. Snelling,
225 Ariz. 182, 188 ¶ 25, 236 P.3d 409, 415 (2010)). This Court
“‘examine[s] the entire murder transaction and not simply the
final act that killed the victim.’” Id. (quoting State v.
Ellison, 213 Ariz. 116, 142 ¶ 119, 140 P.3d 899, 925 (2006)).
¶33 The record establishes beyond a reasonable doubt that
Joan’s murder was especially cruel. The medical examiner
testified that Joan suffered eighteen or more blows to her head,
at least one of which was inflicted with as much force as that
caused by a motor vehicle accident. She also suffered cuts,
scrapes, bruises, and bone fractures. Her wounds suggested that
Joan was conscious and moving while being beaten. She had
defensive wounds and grip marks on her arms indicating that she
struggled while being held down with significant force.
¶34 The evidence also indicates that a gag-type ligature
was placed around Joan’s face and across her neck. Although
Joan usually kept a neat apartment, after the attack, a glass
table top was knocked over and a heavy living room chair
displaced. Joan’s blood was found in Gomez’s apartment, but not
in her own. This evidence suggests Joan was abducted in her
apartment and then beaten to death in Gomez’s apartment.
¶35 Gomez argues that especial cruelty was not proven
16
because the medical examiner could not determine the “sequence
of blows, the consciousness of the victim, and the nature of the
bruising” that Gomez inflicted. This argument fails.
¶36 Joan’s injuries, her screams, evidence of a struggle
in Joan’s apartment, and the fact that she had been gagged all
indicate Joan was conscious during part of the attack. Cf.
State v. Andriano, 215 Ariz. 497, 511 ¶ 66, 161 P.3d 540, 554
(2007) (finding cruelty where “[d]efensive wounds on [the
victim’s] hands and wrists indicate that he was conscious for at
least some of the attack and thus knew his wife was attacking
him”), abrogated on other grounds by State v. Ferrero, 229 Ariz.
239, 274 P.3d 509 (2012).
¶37 Regardless of when Joan lost consciousness as result
of the eighteen blows to her head, the State proved beyond a
reasonable doubt that she was conscious for part of the attack
and suffered physically and mentally. The State also proved
beyond a reasonable doubt that Gomez knew or should have known
that Joan was suffering physically and mentally. See, e.g., id.
(defendant “knew or should have known that beating her husband
with a bar stool would cause him physical pain and mental
anguish”).
2. Mitigating Circumstances
¶38 At the mitigation phase, Gomez presented testimony
from family members and others who knew him in the Dominican
17
Republic and established that he had a good upbringing and was
treated well by his parents while growing up. During
allocution, Gomez asked for an opportunity to obtain an
education and to be rehabilitated. On appeal, Gomez states that
he had no prior criminal record and that he immigrated to the
United States as a self-sufficient professional, sought ways to
give back to his adopted country as a coach for young people,
cared about his family and community in the Dominican Republic,
and was raising an infant son.
¶39 The State disputes Gomez’s alleged mitigating factors,
contending that his family members and friends from the
Dominican Republic had no significant contact with Gomez in the
more than ten years between his move to the United States and
Joan’s murder. At the penalty phase, to contradict Gomez’s
claims that he was a productive member of society and caring
father, the State introduced testimony from the guilt phase in
which Gomez admitted using drugs and said that, on the day of
the murder, he had smoked marijuana before driving with his
infant son in a car and had later left the baby unattended while
he engaged in consensual sexual intercourse in another car.
¶40 “A defendant’s relationship with his or her family and
friends may be a mitigating circumstance, yet the Court has
often found that this circumstance should be given little
weight.” State v. Tucker, 215 Ariz. 298, 322 ¶ 116, 160 P.3d
18
177, 201 (2007). Similarly, a defendant’s lack of a prior
felony conviction “is a mitigating circumstance, but entitled to
little weight.” State v. Greene, 192 Ariz. 431, 442 ¶ 52, 967
P.2d 106, 117 (1998). The mitigating circumstances are not
substantial.
3. Propriety of Death Sentence
¶41 We consider the quality and the strength, not simply
the number, of aggravating and mitigating factors. Id. at 443
¶ 60, 967 P.2d at 118. Gomez kidnapped and sexually assaulted
Joan and brutally bludgeoned her to death. The record does not
reflect significant mitigating circumstances. We conclude that
“the mitigation is not sufficiently substantial to warrant
leniency.” A.R.S. § 13-755(B).
E. Additional Issues
¶42 Stating that he seeks to preserve certain issues for
federal review, Gomez lists eighteen additional constitutional
claims that he acknowledges have been rejected in previous
decisions. We decline to revisit these claims.
F. State’s Cross-Appeal
¶43 On cross-appeal, the State argues that the trial court
abused its discretion by (1) precluding cross-examination of
Gomez after he identified new mitigation and professed his
innocence during allocution, and (2) limiting the rebuttal
19
evidence the State presented in response to Gomez’s statements
during allocution. These issues are moot, however, because we
have affirmed Gomez’s death sentence, and we accordingly decline
to address them. See, e.g., State v. Chappell, 225 Ariz. 229,
243 ¶ 60, 236 P.3d 1176, 1190 (2010); State v. McCray, 218 Ariz.
252, 261 ¶ 46, 183 P.3d 503, 512 (2008).
CONCLUSION
¶44 We affirm Gomez’s sentences.
_____________________________________
Scott Bales, Vice Chief Justice
CONCURRING:
_____________________________________
Rebecca White Berch, Chief Justice
_____________________________________
A. John Pelander, Justice
_____________________________________
Robert M. Brutinel, Justice
__________________________________
Donn Kessler, Judge*
* Pursuant to Article 6, Section 3 of the Arizona Constitution,
the Honorable Donn Kessler, Judge of the Arizona Court of
Appeals, Division One, was designated to sit in this matter.
20