SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-05-0163-AP
Appellee, )
) Pima County
v. ) Superior Court
) No. CR2003-1740
JOHN MONTENEGRO CRUZ, )
)
Appellant. ) O P I N I O N
_________________________________ )
Appeal from the Superior Court in Pima County
The Honorable Theodore B. Borek, Judge
AFFIRMED
________________________________________________________________
TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel,
Capital Litigation Section
Amy Pignatella Cain, Tucson
Assistant Attorney General
Attorneys for State of Arizona
LAW OFFICE OF DAVID ALAN DARBY Tucson
By David Alan Darby
Attorneys for John Montenegro Cruz
________________________________________________________________
B E R C H, Vice Chief Justice
¶1 John Montenegro Cruz was convicted of one count of
first degree murder and sentenced to death. This automatic
appeal followed. This Court has jurisdiction pursuant to
Article 6, Section 5(3) of the Arizona Constitution and Arizona
Revised Statutes (“A.R.S.”) section 13-4031 (2004).
I. FACTUAL AND PROCEDURAL BACKGROUND1
¶2 On May 26, 2003, Tucson Police Officers Patrick
Hardesty and Benjamin Waters responded to a hit-and-run
accident. The investigation led the officers to a nearby
apartment.
¶3 The apartment was occupied by two women and Appellant
Cruz, who fit the description of the hit-and-run driver. The
officers asked Cruz to step outside and identify himself. Cruz
said he was “Frank White.” Officer Hardesty contacted police
dispatch to verify the identity and was told that no Frank White
with the birthdate given by Cruz was licensed in Arizona.
Hardesty asked Cruz for identification and Cruz replied that he
had left it in the car.
¶4 As Hardesty and Cruz approached the car, Cruz leaned
in as if retrieving something, then “took off running.” Officer
Hardesty chased Cruz on foot, while Waters drove his patrol car
around the block in an attempt to cut Cruz off.
¶5 When Waters turned the corner, he saw Cruz throw a gun
on the ground. Officer Hardesty was nowhere in sight. Waters
radioed Hardesty that Cruz had a gun, then got out of his car
and drew his service weapon on Cruz, who stated, “Just do
1
We view the facts in the light most favorable to sustaining
the verdict. State v. Tucker, 205 Ariz. 157, 160 n.1, 68 P.3d
110, 113 n.1 (2003).
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it . . . . Just go ahead and kill me now. Kill me now. Just
get it over with.” Waters apprehended Cruz after a brief
struggle.
¶6 Officer Hardesty’s body was discovered immediately.
He had been shot five times: Two bullets were stopped by his
protective vest, two bullets entered his abdomen below the vest,
and a fifth bullet entered his left eye, killing him almost
instantly. Four of the five shots were fired from no more than
twelve inches away.
¶7 The handgun thrown down by Cruz, a .38 caliber Taurus
revolver, holds five cartridges. All five cartridges had been
fired, and forensic examiners determined that the five slugs
recovered from Hardesty’s body and vest were fired from that
Taurus revolver. Five unfired .38 cartridges that matched the
cartridges fired from the Taurus were found in Cruz’s pocket
when he was apprehended.
¶8 Cruz was indicted on one count of first degree murder.
The State filed its notice of intent to seek the death penalty
alleging a single aggravating factor: “The murdered person was
an on duty peace officer who was killed in the course of
performing the officer’s official duties and the defendant knew,
or should have known, that the murdered person was a peace
officer.” A.R.S. § 13-703(F)(10) (2003).
¶9 A jury convicted Cruz of first degree murder and found
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the (F)(10) aggravating factor. It found the mitigation
insufficient to call for leniency and determined that Cruz
should be put to death.
II. DISCUSSION
¶10 Cruz raises twenty-two issues on appeal and lists an
additional twenty-one issues to avoid preclusion.2
A. Jury Issues
1. Change of venue
¶11 Much publicity surrounded the death of Officer
Hardesty. He was the first officer from the Tucson Police
Department killed in the line of duty in twenty-one years. In
light of the media attention, Cruz filed several motions to
change venue. All were denied. Cruz claims that the publicity
was so pervasive and prejudicial that the court’s refusal to
move the trial was an abuse of discretion.
¶12 A party seeking a change of venue must show that the
prejudicial pretrial publicity “will probably . . . deprive[]
[the party] of a fair trial.” Ariz. R. Crim. P. 10.3(b). We
review a trial court’s ruling on a motion for change of venue
based on pretrial publicity for an abuse of discretion. State
v. Nordstrom, 200 Ariz. 229, 239, ¶ 14, 25 P.3d 717, 727 (2001).
¶13 When evaluating pretrial publicity, we determine
2
These twenty-one issues are listed in an appendix to this
opinion.
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“whether, under the totality of the circumstances, the publicity
attendant to defendant’s trial was so pervasive that it caused
the proceedings to be fundamentally unfair.” State v. Blakley,
204 Ariz. 429, 434, ¶ 13, 65 P.3d 77, 82 (2003) (quoting State
v. Atwood, 171 Ariz. 576, 630, 832 P.2d 593, 647 (1992)). We
consider the effect of pretrial publicity, not merely its
quantity. Nordstrom, 200 Ariz. at 239, ¶ 14, 25 P.3d at 727.
¶14 The analysis of pretrial publicity involves two
inquiries: “(1) did the publicity pervade the court proceedings
to the extent that prejudice can be presumed?; if not, then (2)
did defendant show actual prejudice among members of the jury?”
State v. Murray, 184 Ariz. 9, 26, 906 P.2d 542, 559 (1995); see
also State v. Bible, 175 Ariz. 549, 563, 566, 858 P.2d 1152,
1166, 1169 (1993). The mere fact that jury members have been
exposed to the facts of the case through media coverage does not
create a presumption of prejudice if the jurors can lay aside
that information and render a verdict based on the evidence.
Atwood, 171 Ariz. at 630-31, 832 P.2d at 647-48, overruled on
other grounds by Nordstrom, 200 Ariz. at 241, ¶ 25, 25 P.3d at
729. Even knowledge of the case or an opinion concerning the
defendant’s guilt will not disqualify a juror if the juror can
“set aside such knowledge or opinion in evaluating the evidence
presented at trial.” State v. Gretzler, 126 Ariz. 60, 77, 612
P.2d 1023, 1040 (1980).
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a. Presumed prejudice
¶15 For prejudice to be presumed, the publicity must be
“so unfair, so prejudicial, and so pervasive that [the court]
cannot give any credibility to the jurors’ answers during voir
dire.” State v. Bolton, 182 Ariz. 290, 300, 896 P.2d 830, 840
(1995) (quoting Bible, 175 Ariz. at 565, 858 P.2d at 1168)
(alteration in Bolton). In other words, we will presume
prejudice only if the “media coverage was so extensive or
outrageous that it permeated the proceedings or created a
‘carnival-like’ atmosphere.” Atwood, 171 Ariz. at 631, 832 P.2d
at 648.
¶16 The media extensively covered the death of Officer
Hardesty and Cruz’s apprehension. Hundreds of television
broadcasts and newspaper articles reported the crime and Cruz’s
suspected guilt. Local radio stations and grocery stores raised
money for Hardesty’s family; a billboard was erected on a major
Tucson street that proclaimed, “Officer Patrick K. Hardesty,
Your service to Tucson will never be forgotten”; flags were
flown at half staff; and a local police substation was named for
Hardesty.
¶17 Although the publicity was extensive, it was not
“outrageous” and did not create a “carnival-like atmosphere.”
In Bible, this Court upheld the conviction and death sentence
for a defendant who raped and murdered a nine-year-old girl in
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Flagstaff, despite similarly pervasive and even more
inflammatory pretrial publicity. 175 Ariz. at 560-62, 858 P.2d
at 1163-65. In that case, “nearly all potential jurors had some
knowledge of the case.” Id. at 563, 858 P.2d at 1166. Local
newspapers reported several pieces of inadmissible evidence,
including that Bible had “flunked a lie detector test,” and
false reports, such as that Bible was a convicted “child
molester” who had committed “child rape.” Id. at 564, 858 P.2d
at 1167. This Court nonetheless found that Bible failed to meet
the heavy burden of establishing that the court should apply a
presumption of prejudice because the reports were separated from
the trial by months. Id. at 564-66, 858 P.2d at 1167-69.
¶18 In the case before us, the information disseminated to
the public was not nearly as sensational as that circulated
before the Bible trial, and it was almost entirely accurate.
Moreover, most of the coverage occurred more than a year before
trial.
¶19 As evidence that the trial court should have presumed
prejudice, Cruz points to an opinion poll of 100 potential Pima
County jurors. Seventy-nine percent of those polled had heard
of Hardesty’s murder. Of that group, fifty-one percent thought
that Cruz was likely guilty of the crime.
¶20 The poll data, however, fail to create a presumption
of prejudice. The poll was conducted a year before the start of
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the trial and showed that, even among the seventy-nine percent
of those polled who had heard of the case, nearly half had no
opinion regarding Cruz’s guilt. Cruz did not show that
potential jurors could not set aside their initial impression of
guilt. Cruz failed to meet the “very heavy” burden of
establishing that prejudice should be presumed.
b. Actual prejudice
¶21 In the absence of presumed prejudice, a defendant may
demonstrate “that the pretrial publicity was actually
prejudicial and likely deprived him of a fair trial.” State v.
Davolt, 207 Ariz. 191, 206, ¶ 49, 84 P.3d 456, 471 (2004). “The
relevant inquiry for actual prejudice is the effect of the
publicity on the objectivity of the jurors” actually seated.
Murray, 184 Ariz. at 26, 906 P.2d at 559 (citing Bible, 175
Ariz. at 566, 858 P.2d at 1169).
¶22 Aside from reasserting the findings of the poll, Cruz
presents no evidence of actual prejudice and we see none. The
record shows that the voir dire of the jury pool was extensive;
it lasted seven days and included individual questioning by
counsel of each prospective juror to weed out potentially biased
jurors. Cruz offers no example of an actually prejudiced juror
who served on this panel. The trial court did not abuse its
discretion by declining to move the trial.
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2. Sequestration of the jury
¶23 Cruz moved three times to sequester the jury. He
argues that the trial court abused its discretion in denying
these motions. Sequestration of a jury falls within the
discretion of the trial court, Ariz. R. Crim. P. 19.4; we will
not disturb a trial court’s ruling on sequestration absent “an
abuse of discretion and resulting prejudice to the defendant.”
Murray, 184 Ariz. at 33, 906 P.2d at 566 (citing State v. Schad,
129 Ariz. 557, 568, 633 P.2d 366, 377 (1981)).
¶24 “When publicity is not sensational [or] inflammatory,
there is no need to sequester the jury[,] particularly when the
jury has been cautioned not to read the newspapers, listen to
the radio or watch television during the trial and there is no
indication that the court’s instructions were violated.”
Gretzler, 126 Ariz. at 79, 612 P.2d at 1042 (quoting Collins v.
State, 589 P.2d 1283, 1291 (Wyo. 1979)). In this case, the
publicity, while extensive, was not inflammatory.
¶25 Moreover, when the jury was empanelled, the trial
judge carefully instructed the jurors not to “read any news
stories or articles or listen to any radio or television reports
about this case or about anyone who has anything to do with it”
and to immediately report any exposure to outside information.
The judge reminded the jury of the admonition at every break
during the seven-week trial and instructed the jury to re-read
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the admonition. The jury is presumed to have followed the
court’s many instructions on this issue. State v. Morris, 215
Ariz. 324, 337, ¶ 55, 160 P.3d 203, 216 (2007).
¶26 Cruz has not shown that the jury violated the
admonition. Indeed, jurors took the admonition seriously enough
that even innocuous matters were reported to the judge, who
carefully reviewed each report and questioned jurors when
appropriate. Given the court’s careful and frequent admonitions
to the jury and the lack of sensational media coverage or
prejudice to Cruz, the trial court did not abuse its discretion
in refusing to sequester the jury.
3. Striking jurors for cause
¶27 Cruz contends that the trial court abused its
discretion and caused him prejudice by failing to excuse Jurors
62, 123, 127, 136, 150, 169, 178, and 193 for cause. Cruz used
peremptory strikes to remove Jurors 136, 150, 169, and 178.
Jurors 62, 123, 127, and 193 eventually sat on the jury.
¶28 We review a trial court’s refusal to strike jurors for
cause for an abuse of discretion. State v. Glassel, 211 Ariz.
33, 47, ¶ 46, 116 P.3d 1193, 1207 (2005); State v. Medina, 193
Ariz. 504, 511, ¶ 18, 975 P.2d 94, 101 (1999). Even if a
defendant is forced to use a peremptory challenge to remove a
juror who should have been excused for cause, however, an
otherwise valid criminal conviction will not be reversed unless
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prejudice is shown. State v. Hickman, 205 Ariz. 192, 196-97,
¶¶ 20-21, 68 P.3d 418, 422-23 (2003).
¶29 Cruz moved to strike Jurors 62, 123, 127,3 136, 150,
169, and 178 for cause on various grounds, including that they
had friends or relatives in law enforcement, tended to favor the
prosecution, or held initial opinions as to Cruz’s guilt. Upon
questioning, however, all of these jurors unequivocally stated
that they could fairly evaluate the evidence, follow the court’s
instructions, and set aside any preconceived notions of guilt.
The trial court did not abuse its discretion by refusing to
strike these jurors for cause.
a. Juror 193
¶30 Cruz argues that Juror 193, who became the jury
foreperson, was prejudiced against him because her husband was a
former police officer and because she stated during voir dire
that “[Cruz] probably would not want me” sitting on the jury.
¶31 Cruz did not move to strike Juror 193 for cause. We
therefore review for fundamental error. See State v. Garza, 216
Ariz. 56, 64, ¶ 28, 163 P.3d 1006, 1014 (2007). We see no
fundamental error. When questioned, she stated that she could
be fair and impartial to both sides. Cruz’s concerns that
3
Cruz’s briefs set forth no reason to strike Juror 127.
This argument is therefore waived. See State v. Carver, 160
Ariz. 167, 175, 771 P.2d 1382, 1390 (1989).
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sympathies based on her husband’s former job might influence her
decisions exemplify why a defendant is given peremptory strikes:
to remove a qualified juror whom the defendant does not wish to
have on the jury.
¶32 Cruz also asks us to consider a statement Juror 193
gave to the press following the entry of the penalty phase
verdict that, if the sentence “deters a criminal and saves a
peace officer’s life in the future, then the message we sent in
our decision is positive. The message is, ‘It is not OK to take
a peace officer’s life.’”
¶33 Subject to only a few exceptions, a juror’s out of
court statement is not admissible to contradict the verdict.
State v. Dickens, 187 Ariz. 1, 15, 926 P.2d 468, 482 (1996); 8
WIGMORE ON EVIDENCE § 2352(c) (McNaughton rev. 1961). None of the
exceptions applies here. Ariz. R. Crim. P. 24.1(c)(3). The
trial court did not fundamentally err by not excusing Juror 193.
b. State v. Hickman
¶34 Cruz argues that we should overrule State v. Hickman,
205 Ariz. 192, 68 P.3d 418 (2003), and return to the rule
established in State v. Huerta, 175 Ariz. 262, 262, 267, 855
P.2d 776, 776, 781 (1993), that an erroneous failure to excuse a
juror for cause always constitutes reversible error, regardless
of prejudice. In overruling Huerta, we observed that the Huerta
rule “forces trial courts to retry cases previously decided by
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fair juries. It is costly to the victims and to the judicial
system, and it generates public cynicism and disrespect for the
judicial system.” Hickman, 205 Ariz. at 200, ¶ 35, 68 P.3d at
426.
¶35 Cruz argues that because “death is different,” this
Court should apply the Huerta standard in capital cases rather
than the Hickman standard. We have, however, cited Hickman in
several capital cases. See, e.g., Garza, 216 Ariz. at 65, ¶ 32,
163 P.3d at 1015; Glassel, 211 Ariz. at 46-47, ¶ 41, 116 P.3d at
1206-07; State v. Anderson, 210 Ariz. 327, 338, ¶ 29 & n.7, 111
P.3d 369, 380 & n.7 (2005). We now expressly hold that Hickman
applies in both capital and non-capital cases. As the United
States Supreme Court stated in United States v. Martinez-
Salazar, “[s]o long as the jury that sits is impartial, . . .
the fact that the defendant had to use a peremptory challenge to
achieve that result does not mean the Sixth Amendment was
violated.” 528 U.S. 304, 313 (2000) (quoting Ross v. Oklahoma,
487 U.S. 81, 88 (1988)). Cruz presents no reason for requiring
a new trial when a case was heard by an impartial jury.
4. Refusal to grant additional peremptory strikes
¶36 Cruz argues that, in light of the extensive pretrial
publicity in this case, the trial court should have awarded him
five extra peremptory strikes. We rejected this argument in
Gretzler, 126 Ariz. at 78, 612 P.2d at 1041. There we held that
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the court’s failure to give additional peremptory strikes does
not constitute reversible error unless the defendant shows
prejudice. Id. As discussed above, Cruz has not shown
prejudice.
B. Pretrial Issues
1. Constitutionality of Rule 20
¶37 Cruz argues that Rule 20 of the Arizona Rules of
Criminal Procedure, which governs judgments of acquittal, is
unconstitutional in light of the United States Supreme Court’s
opinions in Apprendi v. New Jersey, 530 U.S. 466 (2000); Ring v.
Arizona (Ring II), 536 U.S. 584 (2002); and Blakely v.
Washington, 542 U.S. 296 (2004). He therefore asked the trial
court to hold Rule 20 unconstitutional. We review the trial
court’s denial of the motion de novo. See State v. Casey, 205
Ariz. 359, 362, ¶ 8, 71 P.3d 351, 354 (2003).
¶38 Rule 20 permits a court to enter a judgment of
acquittal on one or more offenses at the close of evidence by
either side if no substantial evidence warrants a conviction.
Cruz argues that because a jury, and not a judge, must make
factual determinations that would subject a defendant to
increased or aggravated punishment, having a judge decide a Rule
20 motion is unconstitutional.
¶39 Cruz’s argument is meritless. A judge’s ruling either
granting or denying a Rule 20 motion does nothing to subject a
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defendant to increased or aggravated punishment without a jury
determination of relevant facts. Indeed, Rule 20 motions raise
issues of law, not fact. Moreover, a court’s grant of a Rule 20
motion resolves the case in favor of the defendant. Denial of a
Rule 20 motion permits the case to go to the jury, the precise
result Cruz claims is required by the Court’s opinions in
Apprendi, Ring II, and Blakely.
2. Failure to make pretrial ruling on sentence
¶40 Cruz argues that the trial court erred by refusing to
make a pretrial ruling on whether, if the jury decided against
the death penalty, the court would sentence him to life or
natural life in prison. By refusing to rule before trial, Cruz
argues, the court “deprived the jury of a reason to impose a
sentence other than death.”
¶41 In support of this argument, Cruz cites Simmons v.
South Carolina, 512 U.S. 154 (1994) (plurality opinion). In
Simmons, a defendant charged with capital murder was ineligible
for parole because of his previous convictions for violent
offenses. Id. at 156. Because the state argued that the death
penalty was appropriate based on Simmons’ propensity for future
violence, Simmons asked the judge to inform the jury that a life
sentence would mean life without parole. Id. at 158. The trial
court refused to do so, and Simmons was sentenced to death. Id.
at 159-60. The United States Supreme Court reversed, stating
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that “where the defendant’s future dangerousness is at issue,
and state law prohibits the defendant’s release on parole, due
process requires that the sentencing jury be informed that the
defendant is parole ineligible.” Id. at 156; see also Shafer v.
South Carolina, 532 U.S. 36, 49 (2001) (affirming Simmons).
¶42 Cruz’s case differs from Simmons. No state law would
have prohibited Cruz’s release on parole after serving twenty-
five years, had he been given a life sentence. See A.R.S. § 13-
703(A) (2004). The jury was properly informed of the three
possible sentences Cruz faced if convicted: death, natural
life, and life with the possibility of parole after twenty-five
years.
¶43 Cruz also failed to explain how the trial court could
opine on a defendant’s sentence before any evidence is offered
or a verdict is rendered. The trial court did not err by
refusing to “presentence” Cruz.
¶44 In a related argument, Cruz alleges that the trial
court abused its discretion by precluding the testimony of the
Chairman of the Arizona Board of Executive Clemency, who would
have testified about how life sentences are handled in Arizona
and a defendant’s chances of being released on parole.
¶45 The trial court did not abuse its discretion. The
witness would have been asked to speculate about what the Board
might do in twenty-five years, when Cruz might have been
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eligible for parole had he been sentenced to life. The trial
court could reasonably have concluded that testimony on what the
Board might do in a hypothetical future case would have been too
speculative to assist the jury.
3. Cruz’s precustodial statement
¶46 Cruz’s next argument centers on the statement he made
to Officer Waters immediately before being taken into custody:
“Just do it . . . . Just go ahead and kill me now. Kill me
now. Just get it over with.” Cruz argues that these statements
should have been excluded.
¶47 We review a trial court’s ruling on a motion to
suppress evidence for an abuse of discretion. See State v.
Prion, 203 Ariz. 157, 160, ¶ 14, 52 P.3d 189, 192 (2002).
¶48 Cruz alleges that the State had agreed that the
statements would not be used and that he “relied upon the
state’s agreement.” The record simply does not support Cruz’s
assertion that there was such an agreement.
¶49 Cruz moved to suppress any statements he made to
Tucson police officers “on May 26th, 2003, during the
interrogation of defendant Cruz” (emphasis added). Cruz
supplemented that motion on January 5, 2004, requesting that the
court “suppress any and all statements made by defendant during
the investigation of this case.” Both the supplement and the
initial motion, however, referred only to statements Cruz made
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after his arrest and were based on possible violations of
Miranda v. Arizona, 384 U.S. 436 (1966). During a pretrial
hearing, defense counsel confirmed that the motion related to a
post-custody statement made to Detective Filipelli, who briefly
interrogated Cruz at the police station after the shooting. The
State responded by indicating that it would not seek to
introduce that statement into evidence.
¶50 Nothing in the motions requested suppression of the
pre-custody statements, nor was any legal basis cited for doing
so. Thus, when Cruz objected to the introduction of his pre-
custody statement during trial, he was incorrect in stating that
the State had agreed not to use any of Cruz’s statements; the
State had agreed only regarding post-custody statements.
¶51 Cruz also argues that the court abused its discretion
by allowing the pre-custody “just shoot me” statement, but he
does not explain why the statement is inadmissible. Cruz was
not in custody when the statement was volunteered. To the
extent that the statement acknowledges guilt, it qualifies as a
party admission under Rule 801(d)(2) of the Arizona Rules of
Evidence. The trial court did not err by allowing its
admission.
4. “Arturo Sandoval” statement
¶52 Soon after he was detained at the crime scene, Cruz
complained of chest pains, and paramedics were called. During
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the trip to the hospital, Cruz told a paramedic that “Arturo
Sandoval” had shot the police officer. Cruz argues that his
exculpatory statement should have been admitted either as an
excited utterance or under the “rule of completeness.”
a. Excited utterance
¶53 Cruz asserts that the trial court erred in precluding
the paramedic from testifying that Cruz said, “Arturo Sandoval
is the person who shot the officer.” Cruz argues that the
statement falls within the excited utterance exception set forth
in Rule 803(2) of the Arizona Rules of Evidence.
¶54 Rule 803(2) excepts from the hearsay rule a statement
“relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event
or condition.” In analyzing the excited utterance exception, we
apply the following three-part test:
1) There must be a startling event,
2) The words spoken must be spoken soon after the
event so as not to give the person speaking the
words time to fabricate (or reflect), and
3) The words spoken must relate to the startling
event.
State v. Rivera, 139 Ariz. 409, 411, 678 P.2d 1373, 1375 (1984)
(citing 6 WIGMORE ON EVIDENCE § 1750 (Chadbourn rev. 1978)).
¶55 The shooting of a police officer is a startling event,
and the words spoken related to that event: thus, the first and
third parts are satisfied. Regarding the second part, the
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requirement that the words be spoken “soon” after the event, “no
precise time limits after the event can be established within
which a statement will qualify as an excited utterance.” Joseph
M. Livermore, Robert Bartels & Anne Holt Hammeroff, 1 Arizona
Practice: Law of Evidence § 803.2, at 348 (2000). “Lapse of
time is only one factor to be considered.” State v. Barnes, 124
Ariz. 586, 589, 606 P.2d 802, 805 (1980).
¶56 In this case, the paramedic came to the scene thirty
to forty minutes after the shooting and remained with Cruz until
an hour after the shooting. The trial court held that the
statement did not qualify as an excited utterance because Cruz
had ample opportunity for conscious reflection and had so
reflected before making his exculpatory statement. The trial
court did not base its decision solely on the lapse of time,
although it considered that factor. We cannot say that the
trial court abused its discretion.
b. Rule of completeness
¶57 Cruz also urges that the trial court should have
admitted the exculpatory “Arturo Sandoval” statement because it
admitted the inculpatory “just shoot me” statement. Cruz bases
his argument on the “rule of completeness” derived from Rule 106
of the Arizona Rules of Evidence:
When a writing or recorded statement or part
thereof is introduced by a party, an adverse party may
require the introduction at that time of any other
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part or any other writing or recorded statement which
ought in fairness to be considered contemporaneously
with it.
¶58 Under the rule of completeness, however, only the
portion of a statement “necessary to qualify, explain or place
into context the portion already introduced” need be admitted.
State v. Prasertphong, 210 Ariz. 496, 499, ¶ 15, 114 P.3d 828,
831 (2005) (quoting United States v. Branch, 91 F.3d 699, 728
(5th Cir. 1996)). Rule 106 does not create a rule of blanket
admission for all exculpatory statements simply because an
inculpatory statement was also made. Because Cruz’s statement
does not “qualify, explain or place into context” the “just
shoot me” statement, the trial court did not abuse its
discretion by excluding it.
5. Lisa L.’s statement
¶59 Cruz argues that the trial court improperly precluded
a statement by Lisa L. that suggested the culpability of a third
party. Lisa L. was killed in a car accident and so was
unavailable to testify.
¶60 Before trial, the State moved to exclude Lisa L.’s
statement as hearsay. Cruz countered that, while clearly
hearsay, the statement was admissible under Arizona Rule of
Evidence 804(b)(5), the “residual hearsay exception.” The trial
court disagreed and excluded the statement. We review this
evidentiary ruling for an abuse of discretion. Tucker, 205
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Ariz. at 165, ¶ 41, 68 P.3d at 118.
¶61 An otherwise inadmissible hearsay statement may be
admitted under Rule 804(b)(5) if the statement has “equivalent
circumstantial guarantees of trustworthiness” that make it “at
least as reliable as evidence admitted under a firmly rooted
hearsay exception.” State v. Luzanilla, 179 Ariz. 391, 394, 880
P.2d 611, 614 (1994) (quoting Idaho v. Wright, 497 U.S. 805, 821
(1990)). Lisa L.’s statement fails this test for several
reasons.
¶62 First, the trial court found that Lisa L. had
motivation to lie because of her close relationship with Cruz
and his family. Cruz and Lisa L. had lived together on several
occasions and she had dated Cruz’s cousin.
¶63 Second, Lisa L. had a significant criminal history,
including prior convictions for car theft and credit card fraud,
a probation violation, and, at the time the statement was made,
she was facing a subsequent charge of car theft. She also
admitted being a drug addict. This history would have made her
easily impeachable.
¶64 Third, the statement contains several levels of
hearsay. Lisa L. stated that “the rumor on the street was that
[the] cop [had been] shot by another gun” by a man named
“Shorty.” She could not, however, attribute this information to
a source.
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¶65 Finally, her alternate version of the Hardesty
shooting, including the existence of a second gun, does not fit
the evidence.
¶66 In short, Lisa L.’s statement contains no indicia of
reliability. The trial court did not abuse its discretion by
excluding it.
C. Trial Issues
¶67 Cruz made several mistrial motions during trial and
after the guilt phase verdict was rendered. We review these
motions for an abuse of discretion. State v. Moody, 208 Ariz.
424, 456, ¶ 124, 94 P.3d 1119, 1151 (2004). This standard
applies to sections C(1) through C(6) of this opinion, ¶¶ 69-
103.
1. Juror conversations and witness “hugging”
¶68 Regarding the first of the mistrial motions, Cruz
argues that the trial court abused its discretion by failing to
grant a mistrial based on several episodes of alleged “juror
misconduct” and an incident in which a witness hugged members of
the victim’s family. “[J]uror misconduct warrants a new trial
[only] if the defense shows actual prejudice or if prejudice may
be fairly presumed from the facts.” State v. Miller, 178 Ariz.
555, 558, 875 P.2d 788, 791 (1994).
a. Juror conversations
¶69 At the end of the second day of testimony, Juror 118
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complained to the jury commissioner that another juror was
speaking about the case, in violation of the admonition. The
following morning, the judge questioned each juror in the
presence of counsel.
¶70 In chambers, Juror 118 stated that she had five
concerns. First, she recounted a conversation that she
overheard in the elevator:
When we were leaving the courtroom [yesterday] we
got on the elevator with a bunch of jurors . . . .
They just started talking about — I don’t know if this
is bad or not, but I just thought it was a really
inappropriate conversation in an elevator with a bunch
of jurors . . . . We don’t know if . . . people from
the public are allowed in the courtroom. And [Juror
7] said, oh, yeah, anyone can go in the courtroom,
it’s open to the public.
And then [Juror 123] said, oh because my son —
she said either he’s in criminal justice or he’s a
student in criminal justice, I don’t recall. I’d like
him to come down here. It would be good for him to
observe, something like that, not word for word. And
then [Juror 7] said oh, well, then you’re going to
have to ask the Judge about that because I don’t know
if that would be okay. And I just walked out of
there[.] I can’t believe these people.
¶71 Second, Juror 118 reported that, when returning from
lunch, she thought that Juror 7 and some others might have been
discussing the trial because they “got kind of quiet” when she
walked into the room. Juror 118 thought they might have been
discussing the testimony earlier that day from the two young
women who had been involved in the hit-and-run accident with
Cruz that began the series of events that led to Officer
- 24 -
Hardesty’s death.
¶72 Third, Juror 118 complained that Juror 7 had
identified Officer Hardesty’s wife to other jurors. Fourth,
Juror 118 said that Juror 7 had told other members of the jury
that 92 witnesses would testify at the trial. Finally, Juror
118 complained that Juror 7 had told other jury members how the
alternate jurors would be selected.
¶73 The trial judge asked the other jurors about these
allegations. Juror 7 recalled the elevator conversation as
follows:
[W]e were going down the elevator, one of the gals
asked if the — if the trials are open. I said, yeah,
I believe all trials are open. Then she said
something about her son wanted to come see this one.
I said, well, you better talk to the Judge about that,
and that’s the only thing I can recall that was being
said.
Juror 7 did not recall any of the other conversations reported
by Juror 118.
¶74 When Juror 123 was asked about the elevator
conversation, she described the conversation in more detail:
I asked somebody if my son could come watch because
he’s taking a class at Pima, has to come to court and
they thought that was the problem, but we didn’t
discuss the case, I just said, does anybody know is he
allowed to come into the courtroom.
Juror 123 made it clear that no discussion had taken place
regarding the case. Erring on the side of caution, the trial
judge asked the juror not to have her son attend, to which the
- 25 -
juror agreed.
¶75 As these statements indicate, there was nothing
inappropriate about the conversation in the elevator; nothing
was said about the case.
¶76 As for the conversation regarding the two witnesses,
Juror 127 clarified that someone expressed sympathy that the
young women seemed nervous. She confirmed that nothing was said
about the substance of their testimony.
¶77 Other jurors similarly recounted the comments about
the witnesses. They confirmed that no discussion took place
regarding the testimony itself and that only brief mention was
made that the witnesses seemed scared to be testifying. Because
the jurors did not discuss the substance of the testimony and
the witness’s testimony related only to tangential matters, we
conclude that these comments did not affect the jury or the
fairness of the trial.
¶78 As to the alleged statements by Juror 7 identifying
Mrs. Hardesty, stating (incorrectly) that there would be 92
witnesses in the trial, and describing (incorrectly) how
alternates would be selected, no other juror recalled having
heard the statements. Thus, these statements, if made, had no
effect on the other jurors.
¶79 The other jurors uniformly stated that they were
unaware of any inappropriate conversations, and all jurors
- 26 -
affirmed that they were assiduously following the admonition.
¶80 After all jurors had been questioned, counsel for both
Cruz and the State expressed concern about Juror 118’s
overreaction to innocuous conversations and Juror 7’s seemingly
authoritative yet often incorrect statements. Defense counsel
stated that nothing in the jurors’ statements would cause him to
move for a mistrial. Cruz and the State jointly moved to excuse
Jurors 7 and 118, and the court granted the motion.
¶81 Later that day, Juror 118 contacted a Tucson
television station and gave an interview regarding the trial
that largely repeated her allegations to the judge. Parts of
that interview were broadcast the following day, during the 5:00
p.m., 6:00 p.m., and 10:00 p.m. local news.
¶82 The transcripts of both the television broadcasts and
in-camera juror interviews reveal that Juror 118 had a distorted
view of what constituted a violation of the admonition. Nothing
in the record on these issues demonstrates a violation of the
admonition.
b. Witness “hugging” incident
¶83 In addition to the juror misconduct allegation, Cruz’s
first motion for mistrial included an allegation that the jury
was prejudiced by seeing a witness hug Hardesty family members
after testifying.
¶84 Alejandro Ruiz lived at the residence where Officer
- 27 -
Hardesty was killed and was the first person to see Officer
Hardesty’s body. He directed police officers to it when they
arrived. Ruiz also observed parts of Officer Waters’ struggle
with Cruz. At the conclusion of his testimony, Ruiz left the
stand and met with Hardesty’s family, who shook his hand and
hugged him. Accounts conflict on whether this occurred in view
of the jury.
¶85 We conclude that even if the jury observed this
incident, Cruz suffered no undue prejudice from it. The State’s
counsel took steps to ensure that no similar incidents would
occur.
¶86 Nothing about either the “jury misconduct” or the
“hugging” incident warranted a mistrial. The trial court did
not abuse its discretion by refusing to grant one.
2. Jury misconduct involving newspapers
¶87 Cruz moved for a mistrial on February 24, 2005, based
on Juror 118’s allegation that some jurors were reading a
newspaper in the jury room. Defense counsel obtained the
statement on February 10, but did not object based on it until
February 24. The trial court denied the motion as untimely.
¶88 Following Juror 118’s dismissal from the jury and
subsequent interview with the television station, defense
investigators interviewed her and she stated:
Just, um, the second day we were there when we first
- 28 -
got in there, uh, into the jury room. Um, one of the
men said I saw it in the paper and I immediately said
I don’t want to hear it, uh, I was plugging my ears.
And, and then he said oh, but I turned it – the paper
over.
Nothing in this statement indicates that the paper contained any
information about the case. Thus, not only was the motion
untimely, but Cruz has not shown that he was prejudiced.
¶89 Other than the bailiff’s discovery of an issue of the
Green Valley News in the jury room, no other evidence was
presented indicating that a juror might have been reading a
newspaper. That Green Valley paper contained nothing about the
trial, and counsel did not object when the trial court suggested
throwing it away. There was no abuse of discretion in denying
the motion for mistrial.
3. Murder weapon DNA evidence
¶90 On February 23, 2005, Cruz moved for a mistrial,
claiming that he was denied a fair trial by “the State’s ever-
changing theory of prosecution,” in violation of State v.
Blakley, 204 Ariz. 429, 65 P.3d 77 (2003). The trial court
denied the motion.
¶91 In 2003, Nora Rankin, senior criminalist and DNA
analyst for the Tucson Police Department, tested the Taurus
revolver used to kill Officer Hardesty for DNA evidence. She
concluded that Cruz was excluded as a DNA contributor to the
sample recovered from the Taurus. In 2004, the head of the
- 29 -
crime lab reviewed Rankin’s notes and disagreed with her
conclusions. The State promptly informed defense counsel of
this issue. Rankin maintained her opinion that Cruz was
excluded as a DNA donor. The State promptly informed defense
counsel that Rankin’s initial position would not change.
¶92 After learning of the conflicting opinions, Cruz
retained two experts, Brian Wraxall, a DNA expert, and Joe
Collier, a crime scene expert, to support Rankin’s initial
analysis that Cruz was excluded as a DNA donor. When Cruz was
informed that Rankin’s testimony would be unchanged, he did not
withdraw Wraxall and Collier as witnesses.
¶93 Cruz did not call either witness: Wraxall, because he
disagreed with Rankin that Cruz was excluded as a DNA donor, and
Collier, because he had reviewed Rankin’s notes and might also
have discredited Rankin’s conclusions. Based on this state of
facts, Cruz moved for a mistrial, arguing that the possible
change in Rankin’s testimony constituted an “ever-changing
theory of prosecution” that violated his right to notice of the
State’s theory under Blakley.
¶94 In Blakley, this Court held that the state’s change in
the predicate felony on which its felony murder case was based
during closing arguments violated the defendant’s right to a
fair trial. Id. at 440, ¶ 55, 65 P.3d at 88. Such a situation
is not presented here. Although the state may not change its
- 30 -
theory of the case after the close of evidence, nothing requires
“that the defendant receive notice of how the State will prove
his responsibility for the alleged offense.” State v. Arnett,
158 Ariz. 15, 18, 760 P.2d 1064, 1067 (1988).
¶95 Additionally, the record simply does not support the
assertion that the State changed theories. The State said that
it would call Nora Rankin to testify and it did so. Her
testimony never changed. Moreover, because Rankin testified
that Cruz’s DNA was not on the murder weapon, it is difficult to
4
see how Cruz was prejudiced. The trial court did not abuse its
discretion by denying the motion for a mistrial.
4. Tara White testimony5
¶96 After the jury had found Cruz guilty of murder and had
found the (F)(10) aggravator, Cruz’s wife, Tara White, testified
on his behalf during the penalty phase. Following her
testimony, the court declared a recess. White informed defense
counsel that, as the jury left the room, she overheard jurors
saying, “I can’t believe they’re keeping us this long. They
don’t have a chance.” The defense moved for a mistrial.
4
Cruz arguably benefitted from this situation: Rankin was
the only expert who testified regarding DNA, and her testimony
excluded Cruz from the sample taken from the gun.
5
Although White’s testimony occurred during the penalty
phase of the trial, Cruz’s briefs raised his challenge relating
to it in his list of mistrial motions. We therefore address the
motion here.
- 31 -
¶97 The trial court conducted an inquiry, individually
questioning every person who was seated near the witness stand
when White testified. None of the six people, including the
court’s bailiff, had heard what White claimed to have heard.
Out of an abundance of caution, the trial court submitted a
written interrogatory to each juror asking if anyone had heard
any such statement. Each juror replied in the negative. The
court denied the motion for mistrial.
¶98 The trial court fully investigated the matter and
responded appropriately. Because it found no support for
White’s assertions, the trial court did not abuse its discretion
by denying Cruz’s motion for a mistrial.
5. The gun expert’s testimony
¶99 Cruz moved for a mistrial based on testimony by
firearms expert Frank Powell that the spur on the hammer of the
Taurus revolver used to kill Officer Hardesty had been removed
and that the removal may have been done to facilitate
concealment.
¶100 Cruz did not object to Powell’s statement. The
following day, he moved for mistrial, claiming that Powell’s
testimony “implies bad character, bad conduct, a bad act, and
that the person that possessed this weapon was engaging in
criminal behavior.” The trial court denied the motion based on
waiver and lack of merit.
- 32 -
¶101 Although we generally review the failure to grant a
mistrial for an abuse of discretion, Moody, 208 Ariz. at 456,
¶ 124, 94 P.3d at 1151, when a defendant fails to
contemporaneously object to testimony and later moves for
mistrial based on that testimony, we review only for fundamental
error, id. at 441, ¶ 40, 94 P.3d at 1136.
¶102 Cruz has failed to show that the snippet of testimony
rendered his trial fundamentally unfair. It is unlikely that
the jury concentrated on the filed-off hammer on the Taurus when
no evidence was presented that Cruz modified the gun and the
trial was focused on other, more serious issues. The mistrial
motion was properly denied; no fundamental error occurred.
6. Post-verdict mistrial motion
¶103 Cruz moved for a mistrial after the guilt-phase
verdict was read. This motion simply restated his earlier
arguments for mistrial, change of venue, and sequestration of
the jury. As addressed above, nothing in those motions merited
a mistrial. The trial court did not abuse its discretion by
denying this renewed motion for a mistrial.
7. Intoxicated witness
¶104 On February 3, 2003, the State called Myra M. to
testify. She was visibly intoxicated. Cruz’s counsel initially
objected to having her testify, but after discussion with the
court and the prosecutor, withdrew his objection. Cruz now
- 33 -
argues that the trial court erred by not postponing her
testimony.
¶105 We review a trial court’s ruling on the competency of
a witness for an abuse of discretion. Selby v. Savard, 134
Ariz. 222, 227, 655 P.2d 342, 347 (1982). An objection that is
withdrawn is waived, see State v. Eastlack, 180 Ariz. 243, 255,
883 P.2d 999, 1011 (1994), and we thus review only for
fundamental error, State v. Henderson, 210 Ariz. 561, 567, ¶ 19,
115 P.3d 601, 607 (2004).
¶106 We presume that a witness is competent to testify.
See Ariz. R. Evid. 601. “[A] witness is not rendered
incompetent to testify merely because [s]he was under the
influence of drugs . . . at the time [s]he testifies.” State v.
Jeffers, 135 Ariz. 404, 420, 661 P.2d 1105, 1121 (1983).
Although Myra M.’s testimony was somewhat rambling, it was
coherent. Cruz has not shown that she was so intoxicated as to
be incompetent to testify or that fundamental error occurred.
8. Coercion of the jury verdict
¶107 Cruz argues that the trial court coerced the penalty-
phase jury verdict by giving an instruction that overbore the
will of a holdout juror.
¶108 On March 8, 2005, after only three hours of
deliberation on the penalty-phase verdict, the judge received a
question from the jury foreperson, which read:
- 34 -
If one person’s decision remains unchanged against the
other 11 jurors [i]s this a hung jury? If so what
happens next?
¶109 Because the jury and counsel had already left for the
day, the trial judge consulted with counsel telephonically, and
suggested the following response:
1- Yes.
2- At this time I would ask you to continue your
deliberations to attempt to resolve any differences.
¶110 Both attorneys initially agreed, but defense counsel
soon called back expressing reservations regarding the answer to
the second question. Before responding to the jury, the judge
held a hearing the next morning. Ultimately, despite the
objection, defense counsel eventually agreed that both answers
were “at least a fair response” to the jurors’ questions. The
court decided to give the responses quoted above, reasoning that
the initial question was hypothetical.
¶111 On appeal, Cruz asserts that the jury impermissibly
revealed the numerical breakdown and, as a result, any
instruction suggesting further deliberation was impermissibly
coercive. He argues that the court should instead have asked
the jurors whether further deliberations would be fruitful.
¶112 “In determining whether a trial court has coerced the
jury’s verdict,” we examine the judge’s actions and instructions
in light of the “totality of the circumstances and attempt[] to
determine if the independent judgment of the jury was
- 35 -
displaced.” State v. Huerstel, 206 Ariz. 93, 97, ¶ 5, 75 P.3d
698, 702 (2003). If a defendant objects to a further jury
instruction, we review the trial judge’s decision for an abuse
of discretion, State v. Ramirez, 178 Ariz. 116, 126, 871 P.2d
237, 247 (1994), but reversible error occurs if a judge
improperly coerces a verdict, State v. McCrimmon, 187 Ariz. 169,
172, 927 P.2d 1298, 1301 (1996).
¶113 We have addressed the propriety of jury instructions
in possible deadlock situations several times. In Huerstel, we
found error in a capital murder trial when the trial court gave
the instruction suggested in the comment to Arizona Rule of
Criminal Procedure 22.4 to a jury that had been deliberating
only three days and had given no indication that it was
deadlocked. 206 Ariz. at 97-98, 101, ¶¶ 6-9, 25, 75 P.3d at
702-03, 706. The prematurely given instruction, while error,
did not, in itself, require reversal. Id. at 99-100, ¶ 18, 75
P.3d at 704-05. We found that additional circumstances,
including two suggestions from the trial judge that a holdout
juror should reconsider, together with the erroneous
instruction, had “displaced the independent judgment of the
jurors.” Id. at 101, ¶ 25, 75 P.3d at 706 (quoting McCrimmon,
187 Ariz. at 172, 927 P.2d at 1301).
¶114 Caution must be used when instructing a jury if the
court knows of the numerical split between juror groups. State
- 36 -
v. Lautzenheiser, 180 Ariz. 7, 9-10, 881 P.2d 339, 341-42 (1994)
(suggesting that a single holdout juror may need to be “checked
for bruises”); State v. Roberts, 131 Ariz. 513, 517-18, 642 P.2d
858, 862-63 (1982) (Feldman, J., dissenting).
¶115 Assuming, as the trial judge did, that the jurors in
this case were still deliberating, asking them to continue
deliberating does not constitute reversible error. Even
assuming the jury was deadlocked, no reversible error occurred
in this case. The instruction given did not improperly coerce
or influence the jury. It neither asks the jury to reach a
verdict nor suggests that any juror should change his or her
views. The circumstances here thus differ from the overt
pressuring of the holdout jurors in Huerstel and Lautzenheiser.
9. Shock belt
¶116 Cruz argues that his constitutional rights to due
process and a fair trial were violated by requiring him to wear
a “shock belt” under his shirt that enabled security personnel
to deliver an electric shock if he attempted to escape or became
violent. Cruz does not claim that the belt was visible to
jurors, but rather objects that it impeded his ability to
communicate with counsel during proceedings.
¶117 In response to the objection, the court reviewed two
reports detailing a possible escape attempt involving Cruz.
When Cruz challenged the accuracy of the reports, the trial
- 37 -
judge offered to conduct an evidentiary hearing that afternoon
to determine the necessity for the restraint, but Cruz’s counsel
was not prepared to proceed at that time. Finding a legitimate
concern that Cruz presented an escape risk, the trial court
denied Cruz’s motion to have the belt removed. The judge
informed Cruz that he would schedule an evidentiary hearing on
the issue at Cruz’s request, but Cruz never asked for a hearing.
¶118 Although a defendant generally has the right to be
free from restraints in the courtroom, concerns for courtroom
safety and security may make the use of restraints appropriate.
Courtroom security procedures are left to the discretion of the
trial court. Davolt, 207 Ariz. at 211, ¶ 84, 84 P.3d at 476.
We will not disturb a trial court’s decision on security
measures unless an abuse of discretion is shown. See id.
(citing State v. McKinney, 185 Ariz. 567, 576, 917 P.2d 1214,
1223 (1996)).
¶119 Nonetheless, a judge must have grounds for ordering
restraints and should not simply defer to the prosecutor’s
request, a sheriff’s department’s policy, or security
personnel’s preference for the use of restraints. Rather, the
judge should schedule a hearing at the defendant’s request
regarding the need for the restraints. See State v. Stewart,
139 Ariz. 50, 54, 676 P.2d 1108, 1112 (1984) (noting that when a
defendant objects to restraints, “there must be support in the
- 38 -
record for the trial court’s decision”). If such a need is
shown, the restraints ordered should not be disproportionate to
the security risk posed.
¶120 Cruz urges us to adopt instead the heightened standard
employed in Gonzalez v. Pliler, 341 F.3d 897 (9th Cir. 2003).
The court explained in that case that “[t]he fear of receiving a
painful and humiliating shock for any gesture that could be
perceived as threatening likely hinders a defendant’s
participation in the defense of the case, chilling [that]
defendant’s inclination to make any movements during trial —
including those movements necessary for effective communication
with counsel.” Id. at 900 (quoting United States v. Durham, 287
F.3d 1297, 1305 (11th Cir. 2002)) (internal quotation marks
omitted). The court therefore stated that, before a shock belt
may be employed, the government must show not only compelling
circumstances that one is necessary, but also that a less
restrictive alternative will not suffice to ensure courtroom
security. Id.
¶121 Although we share these concerns about the use of
shock belts, we decline to adopt the standard articulated in
Pliler. We adhere to settled Arizona law that leaves
determinations regarding courtroom security to the trial judge’s
discretion. See Davolt, 207 Ariz. at 211, ¶ 84, 84 P.3d at 476.
A trial judge’s independent determination that use of the belt
- 39 -
is appropriate and supported by the record will not be disturbed
absent an abuse of discretion. Id.
¶122 Given the constitutional ramifications of the use of
shock belts, courts should provide a hearing — evidentiary if
necessary — at which the defendant may contest the use of shock
belts or other restraints. In this case, the trial court
properly offered Cruz an evidentiary hearing, but Cruz declined.
The court’s decision was based on a documented threat of escape,
not merely on security personnel’s preference for the shock
belt. There was no abuse of discretion.
10. Autopsy photograph
¶123 Cruz argues that the trial court abused its discretion
by admitting into evidence Exhibit 58, a large autopsy
photograph of Hardesty’s head wound. He claims the photograph
was “gruesome” and inflammatory.
¶124 The photograph shows the entrance wound in Hardesty’s
left eye and demonstrates the “stippling” effect that supported
the pathologist’s conclusion that, when fired, the murder weapon
was approximately twelve inches from Hardesty. Photographs
depicting Hardesty’s other wounds were admitted without
objection.
¶125 The admissibility of a potentially inflammatory
photograph is determined by examining (1) the relevance of the
photograph, (2) its “tendency to incite or inflame the jury,”
- 40 -
and (3) the “probative value versus potential to cause unfair
prejudice.” State v. Spreitz, 190 Ariz. 129, 141, 945 P.2d
1260, 1272 (1997) (quoting Murray, 184 Ariz. at 28, 906 P.2d at
561). We review the trial court’s decision to admit a
photograph for an abuse of discretion. Id.; Gretzler, 126 Ariz.
at 86, 612 P.2d at 1049.
¶126 In murder cases, “[n]otwithstanding an offer to
stipulate to the cause of death, photographs of a murder victim
are relevant if they help to illustrate what occurred.” State
v. Rienhardt, 190 Ariz. 579, 584, 951 P.2d 454, 459 (1997). The
photograph here was relevant to assist the jury “because the
fact and cause of death are always relevant in a murder
prosecution.” Spreitz, 190 Ariz. at 142, 945 P.2d at 1273
(quoting State v. Chapple, 135 Ariz. 281, 288, 660 P.2d 1208,
1215 (1983)).
¶127 Exhibit 58 itself was not particularly inflammatory.
The photograph shows the wound “cleaned up,” and we agree with
the trial judge that “it doesn’t show a lot more than a person
with a black eye.” “There is nothing sanitary about murder, and
there is nothing in Rule 403, Ariz. R. Evid., that requires a
trial judge to make it so.” Rienhardt, 190 Ariz. at 584, 951
P.2d at 459. The trial court did not abuse its discretion by
admitting the photograph.
- 41 -
D. Penalty Phase Issues
1. Double counting an element of the crime
¶128 Cruz argues that the victim’s status as a police
officer was “double counted” because that fact was used to
elevate the murder from second to first degree murder and also
to render the Defendant death eligible.
¶129 This case is unique in that the State did not allege
premeditation or felony murder; the only first degree murder
theory charged was the (A)(3) murder:
Intending or knowing that the person’s conduct
will cause death to a law enforcement officer, the
person causes the death of a law enforcement officer
who is in the line of duty.
A.R.S. § 13-1105(A)(3) (2004). The only aggravating
circumstance was the (F)(10) aggravator:
The murdered person was an on duty peace officer
who was killed in the course of performing the
officer’s official duties and the defendant knew, or
should have known, that the murdered person was a
peace officer.
A.R.S. § 13-703(F)(10) (2004).6 Despite their different wording,
§§ 13-1105(A)(3) and 13-703(F)(10) require proof of nearly
identical facts. To commit first degree murder, a defendant
6
The Legislature added § 13-1105(A)(3) in 1996. 1996 Ariz.
Sess. Laws, ch. 343, § 2 (2d Reg. Sess.). In the only other
case this Court has reviewed since 1996 concerning the murder of
a police officer, an additional aggravator was proved. See
State v. Martinez, 196 Ariz. 451, 461, ¶ 39, 999 P.2d 795, 805
(2000).
- 42 -
must intend to kill a person he knows to be a law enforcement
officer who is acting in the line of duty. Nothing more is
required to prove the (F)(10) aggravating circumstance, which
renders a defendant eligible for a death sentence.
a. State v. Lara
¶130 Cruz fails to articulate how applying the (F)(10)
aggravating factor violates the constitution, aside from urging
us to overrule State v. Lara, 171 Ariz. 282, 830 P.2d 803
(1992). He presents no compelling rationale for doing so. In
Lara, we held that an element of a crime may also be used to
aggravate a sentence. Id. at 284-85, 830 P.2d at 805-06. We
have repeatedly applied the Lara rule in the capital context.
See State v. Greene, 192 Ariz. 431, 444, ¶ 62, 967 P.2d 106, 119
(1998); State v. Lee, 189 Ariz. 608, 620, 944 P.2d 1222, 1234
(1997). We decline Cruz’s invitation to overrule Lara.
b. Presumptive death sentence
¶131 Cruz argues that any defendant who is convicted of
murder under A.R.S. § 13-1105(A)(3) will also have committed the
§ 13-703(F)(10) aggravating factor because one cannot satisfy
§ 13-1105(A)(3) without also satisfying the elements of the
(F)(10) aggravating circumstance. From this, Cruz concludes
that the “presumptive sentence” for violating A.R.S. § 13-
1105(A)(3) is death.
¶132 We addressed a similar “presumption of death” claim in
- 43 -
State ex rel. Thomas v. Granville (Baldwin), which held that no
presumption of death arises when an aggravating circumstance is
found because a jury may sentence a death-eligible defendant to
life in prison “even if the defendant decides to present no
mitigation evidence at all.” 211 Ariz. 468, 471, ¶ 12, 123 P.3d
662, 665 (2005). The same is true here. A conviction under
A.R.S. § 13-1105(A)(3) makes a defendant death eligible (if the
(F)(10) aggravating factor has been alleged and found), but, as
with all cases in which an aggravating circumstance is found, no
presumption arises that a capital sentence should be imposed.
Moreover, Cruz cites no authority suggesting that the
legislature may not provide that any intentional killing of an
on-duty peace officer should make a defendant death eligible.
Killing a person one knows to be a peace officer who is acting
in the line of duty adequately narrows the class of persons
subject to the death penalty. Lowenfield v. Phelps, 484 U.S.
231, 244 (1988) (holding that “a capital sentencing scheme must
‘genuinely narrow the class of persons eligible for the death
penalty’”). Cruz has shown no inherent constitutional problem
with the (A)(3) murder and (F)(10) aggravating factor.
2. Residual doubt jury instruction
¶133 Cruz argues that Arizona law requires the trial court
to give a requested jury instruction on residual doubt. We have
- 44 -
previously held, however, that a residual doubt instruction is
not required by Arizona law. See State v. Garza, 216 Ariz. 56,
70, ¶ 67, 163 P.3d 1006, 1020 (2007). In this case, the jury
was adequately instructed regarding mitigation. The trial court
did not abuse its discretion by refusing to give the requested
instruction.
III. REVIEW OF SENTENCE
¶134 For crimes committed after August 1, 2002, we review
death sentences to determine whether the jury abused its
discretion. A.R.S. § 13-703.05 (2004).
¶135 Aside from the matters addressed earlier in this
opinion, Cruz does not challenge anything that occurred at the
aggravation and penalty phases of his trial. We nonetheless
review the sentence for an abuse of discretion. See A.R.S. §
13-703.05 (requiring Court to review all capital sentences for
abuse of discretion); Morris, 215 Ariz. at 340, ¶ 76, 160 P.3d
at 219 (requiring review even if defendant raises no claims).
¶136 The only aggravating factor in this case was the
(F)(10) factor, murder of a peace officer. Cruz never contested
that he knew Officer Hardesty was a police officer and that
Hardesty was acting in the line of duty when he was killed. The
jury did not abuse its discretion by finding the (F)(10)
aggravator.
¶137 Cruz alleged seventeen mitigating factors: (1)
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impaired capacity to appreciate the wrongfulness of his conduct,
(2) impaired capacity to conform his conduct to the law, (3)
unusual and substantial duress, (4) unforseeability that the
acts would cause death, (5) dysfunctional family, (6)
deprivation of “necessary nurturing and love” from family, (7)
family history of mental disorders, (8) post-traumatic stress
disorder (“PTSD”), (9) drug addiction, (10) mental state
affected by family history of mental disorders, PTSD, and drug
addiction, (11) unfavorable impact on Cruz’s family, (12)
existence of family support, (13) compliance with prison rules,
(14) lack of propensity for future violence, (15) capability to
adapt to prison life, and (16) lack of plan to commit the
murder. Finally, he asserts that his “upbringing, life-style
and subculture all made it far more likely that he would find
himself in this position.” The jury did not find the proffered
mitigation sufficiently substantial to call for leniency.
¶138 Although Cruz’s early life was certainly not ideal,
absent is the type of horrible abuse often found in our capital
jurisprudence. Cruz was neither suffering from any significant
mental illness nor under the influence of drugs at the time of
the crime. The evidence presented on most of these mitigating
circumstances was weak, and Cruz established little or no causal
relationship between the mitigating circumstances and the crime.
Moreover, much of the mitigating evidence offered by Cruz was
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effectively rebutted by the State. The jury did not abuse its
discretion by determining that Cruz should be sentenced to
death.
IV. CONCLUSION
¶139 Cruz’s conviction and death sentence are affirmed.
_______________________________________
Rebecca White Berch, Vice Chief Justice
CONCURRING:
_______________________________________
Ruth V. McGregor, Chief Justice
_______________________________________
Michael D. Ryan, Justice
_______________________________________
Andrew D. Hurwitz, Justice
_______________________________________
W. Scott Bales, Justice
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APPENDIX
Issues Raised to Avoid Preclusion
Cruz raises the following twenty-one challenges to the
constitutionality of Arizona’s death penalty scheme to avoid
preclusion:
1. The death penalty is cruel and unusual punishment
under any circumstances. This argument was rejected by the
United States Supreme Court in Gregg v. Georgia, 428 U.S. 153,
187 (1976), and by this Court in State v. Harrod, 200 Ariz. 309,
320, ¶ 59, 26 P.3d 492, 503 (2001), vacated on other grounds by
Harrod v. Arizona, 536 U.S. 953 (2002).
2. Aggravating factors under A.R.S. § 13-703(F) are
elements of capital murder and must be alleged in an indictment
and screened for probable cause. This Court rejected this
argument in McKaney v. Foreman, 209 Ariz. 268, 271, ¶ 13, 100
P.3d 18, 21 (2004).
3. Victim impact evidence is unconstitutional because of
the lack of prior notice and inability to cross examine the
evidence. In Lynn v. Reinstein, 205 Ariz. 186, 188, ¶ 6, 68
P.3d 412, 414 (2003), this Court found it permissible under the
Victim’s Bill of Rights to allow victims to offer testimony
regarding the victim and the impact of the crime on the victim
and the victim’s family.
4. The trial court erred by refusing to instruct the jury
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that it may consider mercy or sympathy in deciding mitigation.
This Court rejected this claim in State v. Andriano, 215 Ariz.
497, 507, ¶¶ 47-49, 161 P.3d 540, 550 (2007), and State v.
Carreon, 210 Ariz. 54, 70-71, ¶¶ 81-87, 107 P.3d 900, 916-17
(2005).
5. The death penalty is imposed arbitrarily and
irrationally in Arizona. This Court rejected this argument in
State v. Beaty, 158 Ariz. 232, 247, 762 P.2d 519, 534 (1988).
6. Application of the death penalty on the facts of this
case would constitute cruel and unusual punishment. No argument
or authority is presented to support this claim.
7. The prosecutor’s discretion to seek the death penalty
is not channeled by standards. This Court rejected this
argument in State v. Sansing, 200 Ariz. 347, 361, ¶ 46, 26 P.3d
1118, 1132 (2001), vacated on other grounds by Sansing v.
Arizona, 536 U.S. 954 (2002).
8. Arizona’s death penalty is applied so as to
discriminate against poor, young, and male defendants in
violation of the Arizona Constitution. This argument was
rejected in Sansing, 200 Ariz. at 361, ¶ 46, 26 P.3d at 1132,
vacated on other grounds by Sansing v. Arizona, 536 U.S. 954
(2002).
9. The absence of proportionality review of death
sentences by Arizona courts denies capital defendants due
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process of law and equal protection and amounts to cruel and
unusual punishment. This Court rejected this argument in
Harrod, 200 Ariz. at 320, ¶ 65, 26 P.3d at 503, vacated on other
grounds by Harrod v. Arizona, 536 U.S. 953 (2002), and State v.
Gulbrandson, 184 Ariz. 46, 73, 906 P.2d 579, 606 (1995).
10. Arizona’s capital sentencing scheme is
unconstitutional because it does not require that the State
prove that the death penalty is appropriate. This Court
rejected this argument in State v. Ring (Ring I), 200 Ariz. 267,
284, ¶ 64, 25 P.3d 1139, 1156 (2001), rev’d on other grounds by
Ring II, 536 U.S. at 584.
11. Arizona Revised Statutes § 13-703 provides no
objective standards to guide the sentencer in weighing the
aggravating and mitigating circumstances. This Court rejected
this argument in State v. Pandeli (Pandeli I), 200 Ariz. 365,
382, ¶ 90, 26 P.3d 1136, 1153 (2001), vacated on other grounds
by Pandeli v. Arizona (Pandeli II), 536 U.S. 953 (2002).
12. Arizona’s death penalty scheme is unconstitutional
because it does not require the sentencer to find beyond a
reasonable doubt that the aggravating circumstances outweigh the
accumulated mitigating circumstances. This Court rejected this
argument in State v. Poyson, 198 Ariz. 70, 83, ¶ 59, 7 P.3d 79,
92 (2000).
13. Arizona Revised Statutes § 13-703 does not
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sufficiently channel the sentencer’s discretion. Aggravating
circumstances should narrow the class of persons eligible for
the death penalty and reasonably justify the imposition of a
harsher penalty. The broad scope of Arizona’s aggravating
factors encompasses nearly anyone involved in a murder. This
Court rejected this argument in Pandeli I, 200 Ariz. at 382,
¶ 90, 26 P.3d at 1153, vacated on other grounds by Pandeli II,
536 U.S. at 953.
14. Execution by lethal injection is cruel and unusual
punishment. This Court rejected this argument in State v.
Hinchey, 181 Ariz. 307, 315, 890 P.2d 602, 610 (1995).
15. Arizona’s death penalty scheme unconstitutionally
requires imposition of the death penalty whenever at least one
aggravating circumstance exists and there is no mitigation
sufficiently substantial to call for leniency. This Court
rejected this argument in State v. Miles, 186 Ariz. 10, 19, 918
P.2d 1028, 1037 (1996).
16. Arizona’s death penalty statute is unconstitutional
because it requires defendants to prove that their lives should
be spared, in violation of the United States and Arizona
Constitutions. The Court rejected this argument in State v.
Fulminante, 161 Ariz. 237, 258, 778 P.2d 602, 623 (1988).
17. Arizona’s death penalty is unconstitutional because it
fails to require the sentencer to consider the cumulative nature
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of mitigation, nor does it require the sentencer to make
specific findings as to each mitigating factor, in violation of
the Eighth and Fourteenth Amendments of the United States
Constitution. This Court rejected this argument in State v. Van
Adams, 194 Ariz. 408, 423, ¶ 55, 984 P.2d 16, 31 (1999).
18. Arizona’s statutory scheme for considering mitigation
evidence is unconstitutional because it limits full
consideration of that evidence. This Court rejected this
argument in State v. Mata, 125 Ariz. 233, 241-42, 609 P.2d 48,
56-57 (1980).
19. Section 13-7037 is unconstitutional because there are
no statutory standards for weighing. This Court rejected this
argument in Atwood, 171 Ariz. at 645-46 n.21, 832 P.2d at 662-63
n.21.
20. Arizona’s death penalty provides no meaningful
distinction between capital and non-capital cases. This Court
rejected this argument in State v. Salazar, 173 Ariz. 399, 411,
844 P.2d 566, 578 (1992).
21. Application of the death penalty statutes promulgated
after Ring II, 536 U.S. at 584, violates the prohibition against
ex post facto laws. The changes altered the rules of evidence
to permit different testimony than that required at the time of
7
Cruz does not specify the statute to which he refers, but
we assume that it is A.R.S. § 13-703.
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the offense. This Court rejected this argument in State v. Ring
(Ring III), 204 Ariz. 534, 547, ¶ 23, 65 P.3d 915, 928 (2003).
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