IN THE SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Supreme Court
) No. CR 98-0488-AP
Appellee, )
) Pinal County
v. ) Superior Court
) No. CR 96-021235
ARTURO ANDA CAÑEZ, )
)
Appellant. ) O P I N I O N
)
______________________________)
Appeal from the Superior Court of Pinal County
Honorable Boyd T. Johnson, Judge
AFFIRMED IN PART; REVERSED IN PART
_________________________________________________________________
Janet A. Napolitano, Attorney General Phoenix
by Paul J. McMurdie, Former Chief Counsel,
Criminal Appeals Section
Kent E. Cattani, Chief Counsel,
Capital Litigation Section
Joseph T. Maziarz, Assistant Attorney General,
Criminal Appeals Section
Attorneys for Appellee
Thomas J. Phalen Phoenix
and
Tara K. Allen Tempe
Attorneys for Appellant
_________________________________________________________________
J O N E S, Chief Justice
¶1 A jury convicted Arturo Anda Cañez of first degree felony
murder, first degree burglary, and two counts of armed robbery.
The trial court’s imposition of the death penalty on the murder
conviction resulted in this direct appeal pursuant to Rules 26.15
and 31.2(b) of the Arizona Rules of Criminal Procedure. We have
jurisdiction pursuant to article VI, section 5(3) of the Arizona
Constitution and section 13-4031 of the Arizona Revised Statutes.
FACTS
¶2 Near midnight on February 22, 1996, a neighbor saw a
truck matching the description of Cañez’ at the Casa Grande home of
77-year-old Franklin Joseph Hale. The driver spoke amiably with
Hale for about five minutes. When the truck left, the neighbor
heard its gears grinding.
¶3 The following night, sometime after 7:00 p.m., Cañez
drove his truck into the parking lot of a bar in Casa Grande.
Jerry Livingston lived in a camper in the parking lot, and he and
Donna Thacker were sitting outside the camper drinking beer. Cañez
joined them and asked if they wanted to get some crack cocaine. As
they sat drinking and smoking, Cañez used a flip-top lighter with
a marijuana leaf printed or etched on it to light his cigarette.
Kathy Shepard soon joined the group. They put their money
together, and Cañez and Shepard left to buy cocaine. The two
bought $20 of crack cocaine and smoked it between themselves.
2
Cañez used the marijuana leaf lighter to smoke the cocaine. After
smoking all of the cocaine, Shepard had Cañez drop her off two
blocks from the bar and instructed Cañez to tell Livingston that
they had “gotten ripped off” to “cover up” for not sharing the
cocaine with him. By the time Shepard walked back to Livingston’s
camper, Cañez was already there. Shepard told Livingston that they
“got burnt.”
¶4 Cañez, Thacker, and Shepard then left the bar in Cañez’
truck. They bought more cocaine and drove to a barn frequented by
drug users and the homeless, arriving between 9:00 and 10:00 p.m.
There they met co-defendant Brian Patterson who was living in the
barn as its caretaker. Patterson recognized Thacker and Shepard
from having previously used drugs with them in the barn. Cañez
introduced himself to Patterson as Anda. The four of them divided
the cocaine and smoked it.
¶5 Afterward, Cañez told Shepard that he “was going to do a
job” and get some money from an old man toward Selma Highway. He
suggested that Shepard “turn a trick” with the man while Cañez took
his money and guns. Shepard declined but Cañez persisted. Cañez
then suggested that they lure Patterson out of the barn and take
his wallet from under his bed. Again Shepard refused.
¶6 Shepard drove Thacker and Cañez in Cañez’ truck to get
more cocaine. They bought another $40 worth, returned to the barn,
and smoked it. Cañez, Thacker, and Shepard again left to buy
3
cocaine. Shepard had become leery of Cañez and his insistence on
going to the old man’s house and decided to get away from him.
With the money, Shepard got out of the truck to buy the drugs,
hinting that Thacker should come with her, but Thacker did not. At
the drug house Shepard met a man she knew and left with him. Cañez
wanted his money back, but Thacker said Shepard would not be coming
back. Cañez dropped Thacker off at her friend’s trailer and
returned alone to the barn.
¶7 Upon his return, Cañez told Patterson they had been
ripped off and asked where they might find the women. They got in
the truck to look for them at the bar. On the way, Cañez asked
Patterson whether he could fight and he said no. Patterson was
then 23 years old, 6' 1", and weighed 125 pounds. He suffered from
walking pneumonia, drug use, and heart problems, for which he had
undergone seven operations and required a pacemaker. They found
neither Thacker nor Shepard at the bar. Cañez then drove to Hale’s
house, grinding the gears as he went. En route, Cañez spoke of
beating someone up and taking his money. When they arrived,
Patterson remarked that it was “too broad a view,” but Cañez said,
“Don’t worry. This guy lives by himself and there’s nobody around
who will notice.”
¶8 Hale answered the door and Cañez said, “Hey, Pops, you
got some more money, another twenty.” Patterson had the impression
they knew each other. Cañez pushed Hale back into the house and
4
closed the door behind him. From outside, Patterson could hear
scraping and thumping. Cañez opened the door and said, “It’s taken
care of, come on in.” Patterson stepped over Hale’s “squirming”
body as he entered the house. At Cañez’ direction, Patterson put
Hale’s television in the truck. On his way back he saw Cañez
twisting a white cloth around Hale’s neck. Patterson turned and
walked away, but Cañez came to the door and threatened him to “get
back in the house.” When Patterson went back inside, Hale was
still moving on the floor.
¶9 Cañez and Patterson emptied the contents of a wallet onto
a chair. On a stand next to the chair, Patterson saw a closed
folding knife. Cañez sent Patterson into the bedroom to look for
guns. From the bedroom doorway, Patterson saw Cañez strike Hale in
the head several times with a frying pan. Patterson saw a glove on
the hand wielding the frying pan but did not see whether the other
hand wore a glove. Hale was still moving and appeared to Patterson
to be semi-conscious. Cañez and Patterson carried out a stereo and
speakers. On his way out for the last time, Patterson saw Hale
moving his right arm toward his head as Patterson stepped over him.
After putting the stereo in the truck, Cañez went back into the
house for two or three minutes and came out with an electric razor
case. They left Hale’s house with the truck’s lights off. Again,
Cañez had trouble shifting gears.
5
¶10 At about 12:45 a.m. a neighbor saw a truck backing out of
Hale’s driveway with its lights off. There appeared to be two
people in the truck. The truck drove to the end of the street and
hesitated at the stop sign for 30 seconds before turning the lights
on and speeding away. At trial, the neighbor identified the truck
as Cañez’.
¶11 Marco and Marta Ramirez testified that Cañez, whom they
knew by sight from the neighborhood, came to their trailer between
midnight and 1:30 a.m. Cañez offered to sell them a television and
stereo. Cañez’ clothes were wet, dark, and dirty, which he
attributed to his having been in a fight. Cañez asked for $50 for
the property but accepted $20 because he “needed the money.”
¶12 In the truck after the sale, Patterson said, “He better
not die.” Cañez replied, “He ain’t gonna die. He ain’t gonna die.
He ain’t gonna die.” Cañez then drove around the block from the
Ramirez residence and parked in front of a trailer he said belonged
to his cousin. He went inside with the electric razor and came out
15 minutes later, cleaned up and wearing different clothes. They
then drove around Casa Grande in a fruitless search for cocaine.
Cañez picked up a woman Patterson did not know and then dropped
Patterson off near the barn. Half an hour later, Cañez and the
woman came back to the barn. Cañez asked whether Patterson had
seen his lighter, but Patterson said he had not. After smoking
more cocaine, Cañez and the woman left.
6
¶13 In the early afternoon of the following day, Hale’s son
discovered the body. The medical examiner determined that Hale
died as a combined result of 21 blunt force injuries and six stab
wounds. That afternoon, Patterson learned from his friend, Justin
McIntosh, whom he had told of the robbery, that the victim had
died. The two went to a pay phone where Patterson called a mental
counseling service and told the counselor that he had been involved
in a homicide. The counseling service called the police and they
met Patterson and McIntosh at the pay phone. Patterson agreed to
go to the station and make a statement.
¶14 Initially, Patterson denied witnessing the assault or
taking drugs, but later admitted to seeing some of the beating and
carrying out the speakers. He agreed to show the detectives where
he had been with Cañez the night before. Patterson took the
detectives to Hale’s house, the Ramirez trailer, the barn, and the
trailer where Cañez had changed clothes (which turned out to be
Cañez’ residence). He also identified Cañez’ truck parked in front
of the trailer where Cañez had changed.
¶15 On March 7, 1996, a grand jury indicted Arturo Anda Cañez
and Brian D. Patterson of first degree felony murder, first degree
burglary, and two counts of armed robbery. Patterson cooperated
with the investigation and testified at Cañez’ trial pursuant to a
plea agreement for manslaughter and first degree burglary.
Patterson ultimately received a ten-year sentence. Cañez’ trial
7
began January 21, 1998, and on February 5, 1998 the jury returned
guilty verdicts on all charges. He was sentenced to death on
October 27, 1998.
TRIAL ISSUES
I. BATSON CHALLENGE
¶16 Cañez, who is Hispanic, made a Batson challenge based on
the state’s removal of five of the seven Hispanic members of the
jury pool. See Batson v. Kentucky, 476 U.S. 79, 89 (1986). The
judge found that this met the defendant’s burden of establishing a
prima facie case of discrimination and asked the state to explain
its strikes. The court ruled that the reasons offered by the state
were race-neutral and denied the Batson challenge. Cañez contends
that this was error and challenges the following juror strikes:
¶17 Perea – The state was concerned that, because she knew
one of the state’s witnesses, Perea might bring unfavorable extra-
judicial information about his controversial employment history
into deliberations. The trial judge, a friend of the witness, knew
of this employment history. Cañez argued that nothing in the
record supported the alleged spotty employment history or that
Perea knew of it. This strike gave the trial judge some pause
since he did not share the state’s concerns. However, he found the
explanation race-neutral.
¶18 Duran – The state struck this juror because she was 21
years old, had only twelve years of education, and, most
8
importantly, claimed to be a nurse. The prosecutor believed that
someone of her age and education could not be a nurse and that her
candor was thus called into question. The court thought she could
have received a two-year nursing degree (although she had not
claimed it on the questionnaire), but found that the concern
regarding candor was race-neutral. Cañez argued that this reason
was pretextual since the state had not asked follow-up questions to
clarify her employment. Although the court believed she would be
a good juror, it upheld the strike as race-neutral.
¶19 Ibarra – The prosecutor had had a close and rocky working
relationship with Ibarra’s brothers who worked in law enforcement.
Two of the brothers had been prosecuted for felonies, and there was
some sentiment that this prosecutor’s office, though it did not
handle the case, chose not to prevent the prosecutions. Ibarra was
struck out of fear of hostility toward the prosecutor. The trial
judge knew that the prosecutor’s office had made the referral that
resulted in the prosecutions and that at least some of the Ibarra
family held the office responsible. Cañez points out that nothing
on the record supports the claimed hostility and that other jurors
with relatives who had brushes with the law were not struck. The
trial court permitted the strike as race-neutral.
¶20 Salazar – The state struck Salazar because he had a
criminal history and expressed his dislike of the death penalty.
The state said it was not convinced by the court’s rehabilitation
9
of the juror regarding the death penalty. The court noted not only
Salazar’s difficulty with the death penalty, but also his
inconsistent answers to questions generally. Cañez points out that
Salazar stated that he could set aside his feelings about the death
penalty and be a fair and impartial juror. The court found the
strike nondiscriminatory.
¶21 Armenta – This juror was struck because he had a criminal
history and did not think it fair for the government to offer co-
defendants plea agreements in exchange for testimony. Cañez points
out that the juror said he could be a fair and impartial juror and
that no co-defendants testified against Armenta in his own
conviction. The court found the strike race-neutral.
¶22 Batson challenges are governed by a three-step analysis:
(1) the party challenging the strikes must make a prima facie
showing of discrimination; (2) the striking party must provide a
race-neutral reason for the strike; and (3) if a race-neutral
explanation is provided, the trial court must determine whether the
challenger has carried its burden of proving purposeful racial
discrimination. Purkett v. Elem, 514 U.S. 765, 767 (1995).
¶23 The state argues that our analysis should end with step
one because the trial court erroneously found a prima facie showing
of discrimination. The state contends that, as a matter of law, a
prima facie case cannot be established where only some, but not
all, members of a cognizable group are struck. However, although
10
“the fact that the state accepted other Hispanic jurors on the
venire is indicative of a nondiscriminatory motive,” it is “not
dispositive.” State v. Eagle, 196 Ariz. 27, 30, 992 P.2d 1122,
1125 (App. 1998) (citing Turner v. Marshall, 121 F.3d 1248, 1254
(9th Cir. 1997) (presence of minority jurors does not preclude
successful Batson challenge)). Because the trial court did not
abuse its discretion in finding a prima facie case of
discrimination, we proceed to step two of the analysis.
¶24 Cañez asserts that the trial court erred in finding that
the state carried its burden of providing race-neutral reasons for
the strikes. Relying on our decision in State v. Cruz, he argues
that where “the state offers a facially neutral, but wholly
subjective, reason for a peremptory strike, it must be coupled with
some form of objective verification” in order to satisfy step two
of the Batson analysis. 175 Ariz. 395, 399, 857 P.2d 1249, 1253
(1993).
¶25 The Cruz rule has been called into question by the
Supreme Court’s subsequent holding that an explanation need only be
facially race-neutral, not “persuasive, or even plausible.”
Purkett, 514 U.S. at 768. Although the court of appeals has held
that Purkett “eliminate[d] the Cruz requirement,” State v. Henry,
191 Ariz. 283, 286, 955 P.2d 39, 42 (App. 1997), we have not
addressed its impact. See State v. Trostle, 191 Ariz. 4, 12, 951
P.2d 869, 877 (1997) (declining to reexamine the continued validity
11
of Cruz in light of Purkett); State v. Murray, 184 Ariz. 9, 25, 906
P.2d 542, 558 (1995) (assuming, without deciding, that Cruz was not
diluted by Purkett).
¶26 We do not address the impact of Cruz, if any, on today’s
opinion because Cruz appears not to have survived Purkett. But
even had it survived, it would not aid Cañez in the case at bar.
Cruz requires only objective verification for wholly subjective
explanations. Here, four of the five challenged strikes were based
on objective facts. Perea knew one of the state’s witnesses.
Duran claimed employment as a nurse, yet was young and did not
report any post-secondary education. Salazar’s criminal history
and dislike of the death penalty appear in the record. Similarly,
Armenta had a criminal history and held a dim view of exchanging
plea agreements for co-defendant testimony. The Cruz rule is
inapplicable because objective facts supported each of these
strikes.
¶27 The fifth strike, Ibarra, was based on an apparently
subjective belief that the Ibarra family harbored ill feelings
toward the prosecutor’s office. The trial judge provided objective
verification for this strike by stating on the record that he knew
of the Ibarra family’s problems with and resentment toward the
prosecutor’s office. See Cruz, 175 Ariz. at 399, 857 P.2d at 1253
(noting trial court’s observations as one source of objective
verification). Thus, each of the challenged strikes easily
12
satisfied Cruz, and, even if its rule survives Purkett, its
application would not change the result here.
¶28 In step three, the trial court ruled against Cañez’
challenge, implicitly finding that he had not carried his burden of
proving purposeful discrimination in any of the state’s peremptory
strikes. We give great deference to the trial court’s ruling,
based, as it is, largely upon an assessment of the prosecutor’s
credibility. See Batson, 476 U.S. at 98 n.21. The trial court
upheld each strike, and we find no error, much less the clear error
required to disturb such rulings. See Murray, 184 Ariz. at 24, 906
P.2d at 557.
II. DEATH QUALIFIED JURY
¶29 Cañez argues that the removal of jurors Smith and Salazar
due to their feelings on the death penalty deprived him of his
rights to an impartial jury, a fair trial, due process, and equal
protection. As to Salazar, Cañez’ claim fails as a matter of law
since the state removed him with a peremptory strike. “Parties may
. . . exercise their peremptory challenges to remove from the
venire any group or class of individuals normally subject to
‘rational basis’ review.” J.E.B. v. Alabama, 511 U.S. 127, 143
(1994). “Nothing about a person’s views on the death penalty
invokes heightened scrutiny under the Equal Protection Clause.
Thus, Batson does not limit the use of peremptory challenges to
exclude jurors because of their reservations about capital
13
punishment.” State v. Bolton, 182 Ariz. 290, 302, 896 P.2d 830,
842 (1995).
¶30 As to Smith, Cañez contends that she should not have been
dismissed for cause because she did not unequivocally state that
she could not be a fair and impartial juror. In support of this
argument, Cañez relies upon State v. Anderson, in which we held
that the trial court committed reversible error by not allowing
oral voir dire in order to rehabilitate jurors with ambiguous
reservations about their ability to be fair in light of their views
on the death penalty. 197 Ariz. 314, 319, 4 P.3d 369, 374 ¶10
(2000). The state argues that Anderson was incorrectly decided and
urges us to reconsider its holding. We decline the request but
point out that, on the record before us, we need not address
Anderson because here, oral voir dire was conducted; Cañez simply
disagrees with the resulting ruling. When the trial judge removed
Smith, Cañez made no objection. Thus, we review only for
fundamental error.
¶31 Both the court and defense counsel attempted to
rehabilitate Smith by explaining to her that the sentencing
decision was for the judge alone. Her responses were inconsistent,
but she ultimately said that she would be incapable of fairly
determining guilt and thereby subjecting the defendant to a
possible death sentence. The “trial judge must excuse any
potential jurors who cannot provide assurance that their death
14
penalty views will not affect their ability to decide issues of
guilt.” State v. Kayer, 194 Ariz. 423, 432, 984 P.2d 31, 40 ¶27
(1999). Smith did not provide such assurance and was therefore
properly excluded for cause.
III. JURY CONTAMINATION
¶32 By failing to raise them at trial, Cañez has waived all
three of his jury contamination arguments. Thus, we review only
for fundamental error. Juror prejudice will not be presumed but
must be demonstrated by objective evidence. See State v. Doerr,
193 Ariz. 56, 61-62, 969 P.2d 1168, 1173-74 ¶18 (1998). All three
claims fail for lack of evidence of resulting prejudice.
¶33 First, Cañez argues that the jury was contaminated by a
venire member’s statement that his sister had been the victim of a
home invasion rape by an African-American and that he would
therefore have a problem serving if the defendant were black.
Cañez suggests that, since he too was a minority accused of a home
invasion attack upon a Caucasian, the juror’s admission of racism
against blacks prejudiced the rest of the jurors against him, an
Hispanic defendant. Though this juror was ultimately removed,
Cañez argues that the court should have questioned the rest of the
jurors to ensure that they were not prejudiced by the statement.
¶34 In support of this argument, Cañez relies on Mach v.
Stewart, 137 F.3d 630 (9th Cir. 1998). During voir dire, a
potential juror repeatedly informed the judge and the panel that
15
she, as a social worker, had substantial expertise in the area of
sexual abuse of children, that she had never been involved in a
case of alleged sexual abuse against a child where the child’s
statements had not been borne out, and that she had never known a
child to lie about sexual abuse. Id. at 632-33. The appellate
court explained that, given the potential juror’s experience and
conviction, “we presume that at least one juror was tainted and
entered into jury deliberations with the conviction that children
never lie about being sexually abused.” Id. at 633. The appellate
court found that the potential juror’s statements were
intrinsically prejudicial and resulted in the swearing in of a
tainted jury because the nature of the statements dealt with the
defendant’s guilt and the victim’s truthfulness, the statements
were “expert-like,” were delivered with certainty, and were
repeated several times.
¶35 Second, while in the restroom, a juror overheard a member
of the victim’s family say to a third person, “I hope they don’t
believe her.” She reported the encounter to the court, and the
judge and counsel interviewed her about it. She did not know who
the speaker was talking about or whether the comment pertained to
the case, but indicated that she thought they may have meant the
next witness, who was female. The court kept the juror but did not
admonish her not to tell the other jurors of the comment. Cañez
did not object or suggest an admonition. Here too, Cañez has
16
failed to demonstrate any resulting prejudice, and none is
apparent.
¶36 Third, a Spanish-fluent juror talked to the court
interpreter during a break. The prosecutor brought the
conversation to the court’s attention. At Cañez’ request, the
court questioned the juror about the discussion. The juror told
the court that their talk did not concern the case and that he
could be a fair and impartial juror. Both attorneys declined to
question the juror. The court reminded the juror not to talk with
staff until the trial ended. Cañez did not object, nor did he
request any other action of the court. There is no indication of
prejudice.
IV. REFUSED JURY QUESTIONNAIRE
¶37 Cañez argues that the court abused its discretion in
refusing to permit his 82-question voir dire questionnaire.
Written questionnaires have been approved by this court and are
recognized by the Rules of Criminal Procedure. Ariz. R. Crim. P.
18.5(d). Nevertheless, questionnaires are not required. The
method and scope of voir dire is left to the discretion of the
trial judge. State v. Detrich, 188 Ariz. 57, 64-65, 932 P.2d 1328,
1335-36 (1997). “We will not disturb the trial court's selection
of the jury in the absence of a showing that a jury of fair and
impartial jurors was not chosen.” State v. Walden, 183 Ariz. 595,
607, 905 P.2d 974, 986 (1995) (internal quotations omitted)
17
(quoting State v. Tison, 129 Ariz. 546, 551, 633 P.2d 355, 360
(1981)), rejected on other grounds by State v. Ives, 187 Ariz. 102,
107-08, 927 P.2d 762, 767-68 (1996). The trial court expressly
encouraged counsel to conduct extensive individual oral voir dire,
including in chambers if necessary. The trial court did not abuse
its discretion.
V. INSUFFICIENT EVIDENCE
A. Murder
¶38 Cañez argues that the trial court erred by denying his
motion for a directed verdict of acquittal due to a lack of
sufficient evidence to convict. To determine whether a rational
jury could convict, we assess the admissible evidence in the light
most favorable to sustaining the verdict. State v. Fulminante, 193
Ariz. 485, 493, 975 P.2d 75, 83 ¶24 (1999).
¶39 Cañez’ principal argument is that the value of
Patterson’s testimony is slight, given that: two other inmates
testified he made statements about being offered a “sweet deal” for
testifying against Cañez in a murder Patterson actually committed;
Patterson agreed to testify in exchange for a lesser sentence;
Patterson had a motive to commit the crime because he was destitute
and without drugs; prior to the murder, Patterson had been
depressed and suicidal; while incarcerated, Patterson wrote letters
to the court asking that he be put to death for his involvement; at
trial, Patterson had limited present recollection of the night of
18
the murder or of his statements to police; and prior to trial,
Patterson submitted an affidavit recanting his identification of
Cañez. However, the credibility of witnesses is a matter for the
jury. Estate of Reinen v. Northern Ariz. Orthopedics, Ltd., 198
Ariz. 283, 287, 9 P.3d 314, 318 ¶12 (2000). Cañez presented all of
the above impeachment evidence to the jury for its use in weighing
Patterson’s testimony.
¶40 In light of our holding that the Ramirezes’ testimony was
not purchased, infra, Purchased Testimony at ¶72, we do not address
Cañez’ contention that their testimony was unreliable because the
state obtained it with the promise of helping them secure
preferential treatment from the Immigration and Naturalization
Service.
¶41 Cañez also points to the substantial lack of physical
evidence. No fingerprints were found on the stolen property, nor
did the property appear to have been wiped off. However, co-
defendant Patterson testified that Cañez was wearing at least one
glove during the assault. None of Cañez’ hair was found at the
scene. None of his shoes matched a print found at the scene. The
tires on his truck, though consistent with tracks at the scene,
could not be definitively matched. No bloody clothes were found at
Cañez’ home or in his truck. No blood was found in Cañez’ truck.
None of Cañez’ blood was found at the crime scene. The only
physical evidence recovered from the scene linking Cañez to the
19
murder was his lighter which, although a detective testified to
having noticed it on the first processing, was not noted,
photographed, or recovered until the second processing two days
later.
¶42 Physical evidence is not required to sustain a conviction
where the totality of the circumstances demonstrates guilt beyond
a reasonable doubt. Fulminante, 193 Ariz. at 494, 975 P.2d at 84
¶26. The jury heard eyewitness testimony from co-defendant
Patterson that Cañez attacked Hale and removed property from his
home. A neighbor identified Cañez’ truck leaving Hale’s house on
the night of the murder. Tire tracks consistent with those made by
Cañez’ truck were found at the scene. The Ramirezes testified that
they bought the stolen property from Cañez on the night of the
murder. A lighter seen in Cañez’ possession on the night of the
murder was found at the crime scene. Several witnesses testified
to riding in or seeing Cañez drive his truck on the night of the
murder, contradicting Cañez’ statements to police that he was home
that night and that the truck never moved because it was not
licensed and he could not drive a manual transmission. Finally,
Cañez was heard to say that he planned to “do a job” and take some
money from an old man.
¶43 The trial court did not err in denying Cañez’ motion for
a directed verdict. There was ample evidence which “reasonable
persons could accept as adequate and sufficient to support a
20
conclusion of defendant's guilt beyond a reasonable doubt.” State
v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980).
B. Two Counts of Armed Robbery
¶44 Cañez next argues that the evidence cannot support two
counts of armed robbery, one with a knife and one with a frying
pan. He contends that although he allegedly attacked Hale with
different weapons and took various pieces of his property, there
was only one continuous course of conduct and thus only one armed
robbery. The state points out that defendant pushed his way into
the house, attacked Hale, and removed property from the house to
his truck. He then left the truck, went back into the house,
attacked Hale with another implement, and took additional property.
The state concludes that two takings with two weapons, although
having a common victim, constitute two armed robberies.
¶45 The trial court reserved judgment on this issue when
Cañez raised it at the close of the state’s case. It does not
appear to have been called to the court’s attention a second time,
except perhaps as an implicit element of Cañez’ blanket motion for
dismissal due to insufficient evidence made prior to closing
arguments. Therefore, the trial court apparently never expressly
decided whether two counts of armed robbery were proper on these
facts.
¶46 We find only one count of armed robbery appropriate.
First, both takings and attacks occurred within the same course of
21
conduct. The fact that Cañez interrupted the offense to take some
of the stolen property to his truck will not give rise to an
additional count. Second, robbery will lie only where the
defendant “threatens or uses force . . . with intent either to
coerce surrender of property or to prevent resistance.” A.R.S.
§ 13-1902(A). Given the totality of circumstances, this happened
only once, even though Cañez was in and out of the residence. The
entries occurred within minutes of each other and the victim was
the same each time. Cañez did not leave the property until his
crimes were complete. Accordingly, we reverse the conviction and
sentence on Count III, the second allegation of armed robbery.
VI. SUGGESTIVE IDENTIFICATION PROCEDURE
¶47 The only witness to the commission of the crimes at issue
was co-defendant Patterson. Cañez argues that the trial court
committed reversible error in admitting Patterson’s pretrial and
in-court identifications of Cañez. Patterson, who met Cañez for
the first time on the night of the murder, identified him as the
murderer from a single photograph provided by the police. Single
person identifications are inherently suggestive. State v.
Williams, 144 Ariz. 433, 439, 698 P.2d 678, 684 (1985). However,
even where the pretrial identification procedure is unduly
suggestive, reliable identifications will be admitted. Id. at 439-
40, 698 P.2d at 684. We assess an identification’s reliability
using the Biggers factors: (1) the witness’ opportunity to view,
22
(2) the witness’ degree of attention, (3) the accuracy of the
description, (4) the witness’ certainty, and (5) the time between
crime and confrontation. Neil v. Biggers, 409 U.S. 188, 199-200
(1972).
¶48 Patterson had an ample opportunity to view Cañez, having
spent several hours in his actual presence before, during, and
after the murder, including in close proximity while in the pickup
truck and while sharing drugs. Cañez commanded Patterson’s
undivided attention, both during the attack and when they talked
alone before and after. Patterson provided a detailed description,
which included a distinctive tattoo and identifications of Cañez’
truck and residence. Patterson was “very certain” of his
identification of Cañez’ photo. Finally, the identification was
made less than two days after the crime. All five Biggers factors
indicate reliability. Weighing against this is the fact that he
was shown only one photograph and asked, “Is this the guy who did
this?” or “Do you recognize this person?” We find Patterson’s
identification wholly reliable, despite the suggestive pretrial
identification procedure. Therefore, the trial court did not err
in admitting it.
VII. ADMISSION OF CAÑEZ’ STATEMENTS TO POLICE
¶49 Cañez argues that his statements to police following his
arrest should not have been admitted. The jury heard an edited and
redacted copy of the tape recorded interview, and the interviewing
23
officer testified as to its substance. Cañez claimed to have been
home on the night of the murder. He also said that his truck was
never driven because he could not drive a manual shift vehicle and
because the truck was unlicensed and had a hole in the windshield.
Cañez’ inability to drive a manual shift was corroborated by
several witnesses. His denial that he drove his truck was
contradicted by at least five witnesses, three of whom rode in the
truck with Cañez on the night of the murder.
A. Warrantless Arrest
¶50 When the police went to Cañez’ residence to arrest him,
they had neither a search warrant nor an arrest warrant. Cañez’
wife answered the door, and the officers asked to see Cañez. When
he did not appear promptly, two officers followed Cañez’ wife into
the house without her objection or express permission. The
officers told Cañez he needed to come outside and talk to them.
Once outside, they formally placed Cañez under arrest for first
degree murder.
¶51 Cañez argues that because his arrest was illegal, his
subsequent statement to the police should not have been admitted.
Because Cañez raises this issue for the first time on appeal, we
review only for fundamental error. The alleged illegality arises
from the fact that the police arrested Cañez in his home and
without a warrant. The state asserts, in a footnote without
authority or argument, that Cañez’ constitutional claims fail
24
because: (1) Cañez’ wife implicitly consented to the officers’
entry; (2) Cañez was not arrested in his home; (3) there were
exigent circumstances; and, (4) the taint from any violation was
attenuated. These issues could be deemed abandoned by the state’s
failure to argue them. Ariz. R. Crim. P. 31.13(c)(1)-(2); State v.
Blodgette, 121 Ariz. 392, 395, 590 P.2d 931, 934 (1979).
Nevertheless, because we are obliged to uphold the trial court’s
ruling if legally correct for any reason, we address each of the
state’s contentions. State v. Perez, 141 Ariz. 459, 464, 687 P.2d
1214, 1219 (1984).
¶52 The Fourth Amendment of the United States Constitution
protects individuals from “unreasonable searches and seizures.”
Because the invasion of the home is the chief evil to be prevented
by the Fourth Amendment, “searches and seizures inside a home
without a warrant are presumptively unreasonable.” Payton v. New
York, 445 U.S. 573, 585-86 (1980). In addition, Arizona’s
Constitution protects the home from official intrusion without
lawful authority. ARIZ. CONST. art. 2, § 8. Therefore, warrantless
entries of the home are per se unlawful absent exigent
circumstances or other clear necessity. State v. Bolt, 142 Ariz.
260, 265, 689 P.2d 519, 524 (1984). Any evidence obtained as a
result of such illegal searches and seizures is generally
inadmissible at trial, pursuant to the exclusionary rule. See Mapp
25
v. Ohio, 367 U.S. 643 (1949); Bolt, 142 Ariz. at 269, 689 P.2d at
528.
¶53 First, although the constitutional protections of the
home can be voluntarily waived, the record does not support the
state’s contention that Cañez’ wife consented to the entry. See
State v. Schad, 129 Ariz. 557, 563, 633 P.2d 366, 372 (1981). “In
determining whether or not there was a consent, it is necessary
that such a waiver or consent be proved by clear and positive
evidence in unequivocal words or conduct expressing consent
. . . .” State v. Kananen, 97 Ariz. 233, 235, 399 P.2d 426, 427
(1965). At the pretrial voluntariness hearing, one of the
detectives who entered the house was asked, “Did she invite you
in?” He answered, “She never said the words come in, I said
something about coming in, she turned and walked back into her
house and I followed her in.” This is not the unequivocal consent
required to permit police entry into the home.
¶54 Second, we find that Cañez was seized, for Fourth
Amendment purposes, when the officers confronted him in his
bathroom. “[T]he test is whether, in light of all the
circumstances, the police conduct would ‘have communicated to a
reasonable person that he was not at liberty to ignore the police
presence and go about his business.’” State v. Wyman, 197 Ariz.
10, 13, 3 P.3d 392, 395 ¶7 (App. 2000) (quoting Michigan v.
Chesternut, 486 U.S. 567, 569 (1988)). A reasonable person,
26
confronted in the bathroom of his own home by two police officers
advising him that he “needed to come outside,” would not feel free
to go about his business. Therefore, contrary to the state’s
assertion, Cañez was arrested in his dwelling.
¶55 Moreover, absent permission or exigent circumstances,
officers may not enter a home without a warrant. Bolt, 142 Ariz.
at 265-66, 689 P.2d at 524-25. Therefore, whether Cañez was
arrested when the officers came into his bathroom and asked him to
come outside to talk with them, or whether he was not under arrest
until he went outside and was formally arrested and handcuffed, is
of little importance. In either event, the officers unlawfully
entered his residence and any evidence obtained thereby was subject
to suppression.
¶56 Third, while it claims there were exigent circumstances
sufficient to justify the warrantless entry and arrest, the state
has not suggested what those circumstances might have been. Though
not an exhaustive list, we have recognized the following exigent
circumstances: response to an emergency; hot pursuit; potential
destruction of evidence; potential violence; and flight. State v.
White, 160 Ariz. 24, 32-33, 770 P.2d 328, 336-37 (1989). Here,
there was no emergency or pursuit. There may have been some worry
of violence, flight, or destruction of evidence since Cañez was
suspected of murder. However, the absence of a warrant exacerbated
any such fears because the delay between the entry and the police
27
alerting Cañez to their presence and their entry gave Cañez time to
prepare for resistance, flight, or the destruction of evidence.
This case is factually similar to State v. Ault in which the police
had probable cause to arrest but did not obtain a warrant before
entering the defendant’s home and seizing him. 150 Ariz. 459, 724
P.2d 545 (1986).
[T]he deputies chose not to legally arrest defendant at
his home . . . . The exigent circumstances alleged on
behalf of the state were created by the arresting
deputies. An arrest warrant could have been obtained and
defendant apprehended at his home. This was not done.
. . . .
[W]e cannot allow the creation of exigent circumstances
in order to circumvent the warrant requirement.
Ault, 150 Ariz. at 463, 724 P.2d at 549. The same reasoning
applies here to rule out an exigent circumstances justification for
the warrantless entry and arrest.
¶57 Finally, the state contends that even if the entry and
arrest were illegal, the taint on Cañez’ statement was sufficiently
attenuated that it should not be excluded as the fruit of the
poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 487-
88 (1963). The Supreme Court has addressed this question under
nearly identical circumstances. It held that where the police have
probable cause to arrest, but violate the defendant’s Fourth
Amendment rights by doing so in his home and without a warrant,
subsequent statements made “at the station house” are not fruits of
the illegal arrest. New York v. Harris, 495 U.S. 14, 20 (1990)
28
(“[T]he statement, while the product of an arrest and being in
custody, was not the fruit of the fact that the arrest was made in
the house rather than someplace else.”). Here, the state did not
obtain incriminating evidence as a result of the arrest being
effected illegally in Cañez’ home rather than legally elsewhere.
Therefore, because Cañez’ statement was made subsequently and
voluntarily at the police station, it was not tainted by the
illegal entry and arrest. Accordingly, the trial court did not err
in admitting it.
B. Miranda Warning
¶58 Cañez also argues that his statement to the police should
have been suppressed because it was obtained without a valid waiver
of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436
(1966). The interview began with the following exchange between
Cañez and the lead investigator, Detective Hercel Merchant.
Det. Merchant: Ok. Before we start, go any further ah,
I wanna read you your rights. You have the right to
remain silent. Anything you say can and will be used
against you in a court of law. You have the right to
talk to a lawyer, one will be appointed to represent you
before any questioning if you wish. Do you understand
each of these rights? You’re going to have to say yes or
no. Yes? Ok. Ah, are you willing to talk to me?
Cañez: Well, like I say, I don’t know what you’re
talking about.
Det. Merchant: I told you, it’s about . . .
Cañez: Ah . . .
Det. Merchant: that case. I would like for you . . .
29
Cañez: You can ask me, you, whatever you want and I’ll,
you know, I’m, I’m gonna tell you the truth man ah, ah,
where I’ve been at, you know.
After a hearing, the court found the statement voluntary and
admissible. Such rulings will be disturbed on appeal only upon a
finding of clear and manifest error. State v. Prince, 160 Ariz.
268, 272, 772 P.2d 1121, 1125 (1989).
¶59 Cañez argues that he never stated that he understood or
waived his rights. However, Miranda rights are waived by conduct
where, as here, the defendant answers questions following Miranda
warnings. State v. Tapia, 159 Ariz. 284, 287, 767 P.2d 5, 8
(1988). Merchant’s question and inferred answer (“Yes? Ok.”)
suggest that Cañez indicated he understood his rights. In
addition, Cañez expressly consented to questioning and assured
Merchant that he would answer truthfully. This is sufficient to
uphold the trial court’s ruling under the manifest error standard.
Furthermore, Cañez does not point to any evidence that he was
incapable of understanding the warnings provided. In addition, the
fact that the defendant had significant experience with the
criminal justice system suggests that he understood his rights.
See id. The trial court’s ruling was not clearly erroneous.
C. Rule 403
¶60 Cañez also argued at trial that even if the substance of
his statement was otherwise admissible, it should not have been
presented to the jury by audiotape. He objected to the tape on the
30
ground that the state’s only reason for playing it was to prejudice
the jury by showcasing his thick accent, poor grammar, limited
education, and cocky, nonchalant attitude. He contends that the
danger of unfair prejudice in these respects substantially
outweighed the tape’s probative value. Ariz. R. Evid. 403(b).
Cañez relies heavily upon the argument that the substance of the
interview could have been presented by other means, such as the
transcript or the interviewing officer’s testimony. The state
counters that the tape provided the best evidence of what Cañez
said and how he said it.
¶61 Because the trial court is best situated to conduct the
Rule 403(b) balance, we will reverse its ruling only for abuse of
discretion. State v. Roscoe, 184 Ariz. 484, 493, 910 P.2d 635, 644
(1992). We conclude, however, that it would require a rare case
for the defendant’s own statement to be seen as prejudicial to the
extent it should be excluded under Rule 403. This is not that
case. Moreover, because the jury’s credibility determination would
be aided by hearing Cañez’ demeanor, the tape clearly had
substantial probative value. The trial court’s resolution of the
issue was reasonable. We find no abuse of discretion.
VIII. LIMITED CROSS-EXAMINATION
¶62 Cañez argues that the trial court violated his
constitutional right to confront the witnesses against him by
limiting his cross-examination of co-defendant Patterson. “[T]rial
31
judges retain wide latitude insofar as the Confrontation Clause is
concerned to impose reasonable limits on such cross-examination
based on concerns about, among other things, harassment, prejudice,
confusion of the issues, the witness’ safety, or interrogation that
is repetitive or only marginally relevant.” Delaware v. Van
Arsdall, 475 U.S. 673, 679 (1986); see also State v. Fleming, 117
Ariz. 122, 125, 571 P.2d 268, 271 (1977) (“The right to
cross-examination must be kept within ‘reasonable’ bounds and the
trial court has discretion to curtail its scope.”). We evaluate
cross-examination restrictions on a case-by-case basis to determine
whether the defendant was denied the opportunity to present
evidence relevant to issues in the case or the witness’
credibility. Fleming, 117 Ariz. at 125, 571 P.2d at 271.
¶63 Prior to trial, the defense interviewed Patterson
extensively concerning his drug use since age nine. The state
filed a motion in limine to restrict cross-examination with respect
to such prior bad acts under Rule 608(b), Arizona Rules of
Evidence. The trial court partially granted the motion, ruling
that though defense counsel could not “start with him as a child
and go through his history using drugs,” cross-examination would be
permitted on his regular usage, the extent and effect of his use
the night of the murder, and his potential motive to commit these
crimes in order to buy drugs. The trial court found Patterson’s
more remote drug use irrelevant and unduly prejudicial.
32
¶64 Cañez contends that his inability to delve into
Patterson’s full drug history deprived him of his right to impeach
the witness and present his defense that Patterson had a motive to
commit the crimes. We disagree. The trial court expressly
permitted cross-examination on motive. The court also allowed
questioning concerning Patterson’s habitual drug use. Defense
counsel elicited from Patterson his usual drug use, his drug use
the night of the murder and the following day, his poor financial
circumstances, his inability to acquire drugs in the few days
before the murder, his purchase the next day of $20 of marijuana,
and his unclear and incomplete memory of much of the night. The
trial court only precluded questioning as to historical, “specific
instances of drug use and the length of time.” Despite this
restriction, Cañez was permitted to elicit facts necessary to
support his theory that Patterson was a drug addict in need of
money to support his habit. We find that the limits upon cross-
examination were entirely reasonable and did not prevent Cañez from
impeaching the witness or presenting a defense. There was no
confrontation clause violation.
IX. GRUESOME PHOTOGRAPHS
¶65 Cañez argues that the admission of gruesome photographs
deprived him of a fair trial and rendered the death penalty
unreliable. We review the admission of potentially inflammatory
photographs for clear abuse of discretion. State v. Murray, 184
33
Ariz. 9, 28, 906 P.2d 542, 561 (1995). Relevant photographs will
be excluded only if they are inflammatory and the risk of unfair
prejudice substantially outweighs their probative value. State v.
Dickens, 187 Ariz. 1, 18, 926 P.2d 468, 485 (1996); Ariz. R. Evid.
403.
¶66 “[A]ny photograph of the deceased in any murder case is
relevant to assist a jury to understand an issue because the fact
and cause of death are always relevant in a murder prosecution.”
State v. Spreitz, 190 Ariz. 129, 142, 945 P.2d 1260, 1273 (1997)
(internal quotations and alterations omitted) (quoting State v.
Chapple, 135 Ariz. 281, 288, 660 P.2d 1208, 1215 (1983)). Cañez’
assertion that the photos were probative only of matters not in
dispute does not render them irrelevant as the state must carry its
burden of proof on uncontested issues as well as contested ones.
Dickens, 187 Ariz. at 18, 926 P.2d at 485.
¶67 Cañez objected to Exhibit 19, a photograph, on the ground
that it was cumulative and its prejudice outweighed its relevance.
The court overruled the objection and admitted the photo as
evidence of what Hale’s son saw upon entering the house. We do not
find the photo gruesome or inflammatory. It depicts the body lying
on the floor, partially obscured by boxes in a cluttered living
room. The victim’s shirt is blood-soaked, but neither his head nor
face is visible. This photo has little or no tendency to inflame
a jury. However, it likewise has little or no probative value
34
since the position of the body was not contested. Chapple, 135
Ariz. at 289, 660 P.2d at 1216. Because both the risk of prejudice
and the probative value were minimal, the former did not
substantially outweigh the latter. The trial court did not abuse
its discretion in admitting the photograph.
¶68 Cañez also objected to Exhibit 75 as unduly prejudicial
and irrelevant. The state offered the photo on re-direct to show
the position of the body as seen by the first officer on the scene.
The trial court admitted the photo upon a finding that it was not
unduly prejudicial or gruesome. The photo shows the body lying on
its side wearing a blood-soaked shirt with the bruised and bloodied
left arm partially obscuring the face. We do not find the photo
inflammatory or gruesome. Cañez concedes that corroboration of
witness testimony is a proper use of photographic evidence, but
argues that this photo was not corroborative because the officer
testified that it did not accurately depict his recollection of the
position of the head. The court recognized this discrepancy but
admitted the photo because it depicted the officer’s view upon
opening the door. Moreover, Cañez’ objection went to weight, not
admissibility. The photograph was probative to rebut the
defendant’s attempt to impeach the officer concerning the position
of the body. The trial court did not abuse its discretion.
¶69 Cañez also objected to the admission of Exhibits 32, 33,
and 34 -- large format head shots taken during the autopsy that
35
depict injuries to the victim’s face and head. The state offered
them to help the medical examiner in illustrating the wounds,
particularly those the doctor would testify were consistent with
the attacks described by Patterson. Cañez conceded their relevance
but argued that the photographs were unduly inflammatory in light
of the fact that the defense did not contest the injuries or the
manner in which they were inflicted. The defense argued that the
evidence should be presented verbally or by diagram to avoid
inflaming the jury. The trial court ruled that the photos were
relevant in illustrating the doctor’s testimony and that they were
not unduly gruesome. These are the most graphic photographs
presented, yet we do not find them gruesome or inflammatory. They
show the bruises and cuts to Hale’s face consistent with the
beating described by Patterson, but they are not “unduly
disturbing.” Cf. Spreitz, 190 Ariz. at 142, 945 P.2d at 1273
(finding abuse of discretion in admission of autopsy photos showing
decomposition and insect activity on the body); Chapple, 135 Ariz.
at 287, 660 P.2d at 1214 (finding abuse of discretion in admission
of photographs of “burned body, face and skull, the entry wound of
the bullet, a close-up of the charred skull with a large bone flap
cut away to show the red-colored, burned dura matter on the inside
rim of the skull”). Because the photographs’ probative value in
helping the jury understand the doctor’s testimony was not
36
substantially outweighed by their potential for prejudice, we find
no abuse of discretion.
X. PURCHASED TESTIMONY
¶70 Cañez argues that the admission of Patterson’s and the
Ramirezes’ testimonies violated his due process rights because the
state’s plea agreement with Patterson and its alleged efforts to
prevent the deportation of the Ramirezes amounted to purchasing
testimony in violation of Arizona law and professional ethics. The
state first responds that Cañez has waived this suppression
argument, including fundamental error review, for failure to make
a pretrial motion. However, we will review for fundamental error
even absent a pretrial motion to suppress. See, e.g., State v.
Jones, 185 Ariz. 471, 480-82, 917 P.2d 200, 209-11 (1996)
(reviewing admission of evidence for fundamental error despite
failure to raise arguments in motion to suppress).
¶71 Cañez contends that the state violated the statutory
prohibition on offering, conferring, or agreeing to confer “any
benefit upon a witness with the intent to . . . influence the
testimony of that person.” A.R.S. § 13-2802(A)(1). However, Cañez
points to no evidence that the state was attempting to influence
the testimony of either Patterson or the Ramirezes. The statute
prohibits only conferring benefits in an attempt to influence
testimony, not in order to obtain truthful testimony. See State v.
Dumaine, 162 Ariz. 392, 400-01, 783 P.2d 1184, 1192-93 (1989)
37
(finding that offer of favorable plea agreement did not violate
A.R.S. § 13-2802 or rules of professional ethics). The plea
agreement did not violate the statute.
¶72 With regard to the Ramirezes’ testimony, Cañez alleges
that the prosecutor wrote a letter to the INS on their behalf to
ensure that they would not be deported, at least until the trial
ended. The trial court ordered the letter disclosed, but it is not
in the record. However, the record supports the state’s
characterization of the letter as a mere inquiry into the
Ramirezes’ immigration status so that the state could seek a
deposition if there was a risk of unavailability. Once the state
was satisfied that their immigration status was such that
deportation was not a concern, it withdrew its motion for
depositions. No evidence suggests that the state sought to keep
the Ramirezes in this country or to alter their treatment by the
INS. Even if it had, nothing suggests that its intent in doing so
would have been to influence their testimony. On this record, we
conclude the INS letter did not violate the statute.
¶73 Ethical Rule 3.4(b) requires that lawyers “not . . .
falsify evidence, counsel or assist a witness to testify falsely,
or offer an inducement to a witness that is prohibited by law.”
Ariz. R. Sup. Ct. 42. Here, neither the plea agreement nor the INS
letter violated the statute, nor was there any evidence that the
38
prosecutor falsified evidence or sought false testimony.
Therefore, we discern no ethical violation.
¶74 Because the state obtained Patterson’s and the Ramirezes’
testimonies without violating the law or rules of ethics, we find
no error in their admission.
XI. REASONABLE DOUBT INSTRUCTION
¶75 Cañez argues that the court’s jury instruction on
reasonable doubt violated his rights to due process and jury trial
by impermissibly lowering the state’s burden of proof. Since Cañez
failed to object to the instruction, we will review only for
fundamental error.
¶76 The trial court gave the definition of reasonable doubt
mandated by this court: “Proof beyond a reasonable doubt is proof
that leaves you firmly convinced of the defendant's guilt.” State
v. Portillo, 182 Ariz. 592, 596, 898 P.2d 970, 974 (1995). Cañez
contends that “firmly convinced” is more suggestive of the lower
clear and convincing standard than it is of the beyond a reasonable
doubt standard. See State v. King, 158 Ariz. 419, 423, 763 P.2d
239, 243 (1988) (“[A] ‘firm belief or conviction’ is truer to the
clear and convincing standard . . . .”) (citing State v.
Turrentine, 152 Ariz. 61, 68, 730 P.2d 238, 245 (App. 1986) (“Clear
and convincing evidence is that measure or degree of proof that
will produce in the mind of the trier of facts a firm belief or
conviction as to the issue sought to be proved.”)). We have
39
previously rejected this argument. State v. Van Adams, 194 Ariz.
408, 418, 984 P.2d 16, 26 ¶29-30 (1999). We do so once again and
thereby reaffirm the Portillo instruction. The trial court did not
err.
SENTENCING ISSUES
I. CONSTITUTIONAL CHALLENGES TO CAPITAL SENTENCING SCHEME
A. Judicial Finding of Aggravating Circumstances
¶77 Cañez argues that Arizona’s capital sentencing scheme
violates his constitutional right to trial by jury as interpreted
by recent United States Supreme Court precedent. See Apprendi v.
New Jersey, 530 U.S. 466 (2000); Castillo v. United States, 530
U.S. 120 (2000); Jones v. United States, 526 U.S. 227 (1999).
Whatever the implications of these cases, this court is bound by
the Supreme Court’s decision upholding Arizona’s system of judicial
sentencing in capital cases. Walton v. Arizona, 497 U.S. 639
(1990). For a fuller treatment of the issue, see State v. Ring,
200 Ariz. 267, 278-80, 25 P.3d 1139, 1150-52 ¶¶40-44 (2001), and
State v. Harrod, 200 Ariz. 309, 318, 26 P.3d 492, 503 ¶¶40-44
(2001).
B. Untimely Notice of Aggravating Circumstances
¶78 Cañez argues that, as a matter of due process, he was
entitled to pretrial notice of the aggravating factors upon which
the state would rely. He asserts that this early notice is
required in order to afford capital defendants an opportunity to
40
rebut trial evidence which may also be relevant for aggravation.
See A.R.S. § 13-703(C) (any evidence admitted at trial may be
considered at sentencing). We once again reject this argument.
State v. Scott, 177 Ariz. 131, 141, 865 P.2d 792, 802 (1993); State
v. West, 176 Ariz. 432, 452-53, 862 P.2d 192, 212-13 (1993),
overruled on other grounds by State v. Rodriguez, 192 Ariz. 58, 63-
64 n.7, 961 P.2d 1006, 1011-12 n.7 ¶¶28-30 (1998); State v.
Richmond, 136 Ariz. 312, 315-16, 666 P.2d 57, 60-61 (1983); State
v. Ortiz, 131 Ariz. 195, 207-08, 639 P.2d 1020, 1032-33 (1981),
disapproved on other grounds by State v. Gretzler, 135 Ariz. 42, 57
n.2, 659 P.2d 1, 16 n.2 (1983). Even if this claim were not
foreclosed by our prior decisions, Cañez has failed to explain how
the nearly seven months between the state’s aggravation disclosure
in compliance with Rule 15.1(g), Arizona Rules of Criminal
Procedure, and the commencement of his sentencing hearing were
insufficient or otherwise prejudicial to his ability to rebut the
aggravation. We find no due process violation.
C. Judicial Finding of Prior Convictions
¶79 Cañez claims that Arizona’s sentencing scheme, which
provides for jury determinations of prior convictions in non-
capital cases but not in capital cases, is arbitrary and capricious
in violation of his rights to due process and equal protection
under the Fourteenth Amendment. We have expressly rejected this
argument. West, 176 Ariz. at 454, 862 P.2d at 214. Moreover, the
41
claim fails in its premise since non-capital defendants are no
longer statutorily entitled to a jury determination of prior
convictions. See A.R.S. § 13-604(P); State v. Quinonez, 194 Ariz.
18, 20, 976 P.2d 267, 269 (App. 1999) (finding revocation of
statutory right to jury trial on prior convictions constitutional).
¶80 In addition, Cañez contends that as an aggravating
circumstance, his prior convictions must be proven to a jury.
However, whatever the impact of Apprendi on Walton, it is clear
that prior convictions may be found by the court. Apprendi, 530
U.S. at 490 (“Other than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” (emphasis added)).
D. Victim’s Age as Aggravating Circumstance
¶81 Cañez argues that the victim’s age is an impermissible
aggravating factor because (a) the lives of children and the
elderly are not more valuable, (b) the legislature’s addition of
the aggravator expanded rather than narrowed the reach of the death
penalty, and (c) its application double counts the heinous, cruel,
or depraved aggravator. We have upheld the (F)(9) aggravator:
We find that the age of a victim is an appropriate
aggravating factor because a rational basis exists for
it. By adopting the (F)(9) factor, the legislature
determined that the young and old are especially
vulnerable and should be protected. It is not irrational
for the legislature to conclude that murders of children
and the elderly are more abhorrent than other
42
first-degree murders. Thus, in the absence of sufficient
mitigating factors, murders of this sort should be
punished more severely. In addition, the age of the
victim is relevant to an inquiry into the defendant's
characteristics and propensities. Those who prey on the
very young or the very old are more dangerous to society.
State v. Smith, 193 Ariz. 452, 462, 974 P.2d 431, 441 ¶48 (1999).
¶82 As to double counting, we presume that, even where the
fact of the victim’s age is used in finding two aggravating
factors, trial courts will not count it twice when weighing
aggravation against mitigation. State v. Medina, 193 Ariz. 504,
512, 975 P.2d 94, 102 ¶25 (1999). Here, however, we need not
indulge the presumption since the trial judge explicitly made his
heinous, cruel, or depraved finding “without regard to the age of
the victim.” This aggravating circumstance was not weighed twice.
II. STATUTORY AGGRAVATING FACTORS
A. Prior Serious Convictions
¶83 Prior convictions of certain enumerated offenses
constitute an aggravating circumstance. A.R.S. § 13-703(F)(2),
(H)(1). Cañez argues that the state failed to prove his prior
convictions at the sentencing hearing. He does not appear to
contest the quantum of proof or the fact that his prior offenses
qualify as serious under the statute. Instead, he objects that the
evidence relied upon was admitted at the trial on prior convictions
rather than at the capital sentencing hearing.
43
¶84 Following the jury’s guilty verdicts, the court held a
bench trial on prior convictions. The prior offenses were
demonstrated by the admission, over Cañez’ evidentiary objections,
of records from the Pima County Superior Court and the Department
of Corrections. The state proved by fingerprint and photographic
evidence that Cañez was the offender. The court found beyond a
reasonable doubt that Cañez had four felony convictions in Pima
County Superior Court under CR-12633 and CR-12452 (in which three
felonies had been combined for prosecution as a single felony).
¶85 At the capital sentencing hearing, the state sought to
question a custodian of records from the Department of Corrections
to eliminate Cañez’ authentication objection to the DOC records
admitted at the prior conviction trial. The judge declined to hear
the witness, saying, “if I were wrong before [about the
admissibility of the documents], I’m wrong now; if I was right
before, I’m right now.” This decision also eliminated the need to
call an expert to testify that the DOC record fingerprint matched
that of Cañez since such testimony had been admitted at the prior
convictions trial. The court found beyond a reasonable doubt that
Cañez had been convicted of the serious offenses of first degree
burglary and aggravated robbery in CR-12452.
¶86 Despite the statutory provision that “[e]vidence admitted
at the trial, relating to such aggravating or mitigating
circumstances, shall be considered without reintroducing it at the
44
sentencing proceeding,” Cañez argues that the same evidence had to
be admitted again at the sentencing hearing. A.R.S. § 13-703(C).
He contends that the bench trial on prior convictions was not part
of the “trial” contemplated by § 13-703, but a hearing solely for
proving aggravation of the non-capital offenses under § 13-702. We
see no reason to read “trial” in § 13-703 so narrowly. Section 13-
703(C) obviates the need for re-introducing for sentencing purposes
evidence which has already properly been placed before the court.
Cañez’ limiting construction of the term “trial” as used in the
statute would frustrate the judicial economy objective of the
provision without any discernible offsetting gains in accuracy or
fairness.
¶87 The only case cited in support of refusing to use trial
evidence at sentencing is inapposite. In State v. Hensley, the
defendant was convicted upon stipulated evidence. 137 Ariz. 80,
89-90, 669 P.2d 58, 67-68 (1983). Because the parties had not
intended that the stipulated evidence be used at sentencing, we
remanded for a hearing at which the trial court could make findings
of fact based upon admissible evidence. Id. Here, in contrast,
the trial judge made findings of fact supported by evidence
properly before the court. Cañez claims to have thought that the
evidence of prior convictions admitted at the bench trial on prior
convictions would be used only for non-capital sentencing. In
light of the language of § 703(C), this was not a reasonable
45
assumption. Moreover, Cañez had ample opportunity to rebut the
prior conviction evidence at the capital sentencing hearing seven
months later.
¶88 Cañez also asserts without argument that the trial court
erred in admitting the documentary evidence of his prior
convictions. This issue may be deemed waived for failure to argue
it on appeal. See State v. Bolton, 182 Ariz. 290, 298, 896 P.2d
830, 838 (1995). Nevertheless, we note that the DOC record appears
to have been properly admitted as a self-authenticating document
because it is a public record bearing a signed certification by the
department’s custodian. Ariz. R. Evid. 902(2), (4). Similarly,
the copy of the minute entry reflecting Cañez’ convictions bears
the seal of the Pima County Superior Court and a signed
certification by the clerk of the court that it is a true copy. We
find no error in the admission of either document.
B. Elderly Victim
¶89 It shall be considered an aggravating circumstance where
the murder victim was at least 70 years old. A.R.S. § 13-
703(F)(9). Cañez argues that the trial court erred in admitting a
birth certificate to prove Hale’s age and that therefore the state
failed to prove this aggravating factor. At the sentencing
hearing, Cañez objected that the birth certificate lacked
authentication and contained hearsay. The trial court overruled
46
the objection without explanation. We find it unnecessary to
address the admissibility of the birth certificate.
¶90 The victim’s age need not be established by
documentation, such as a birth certificate or driver’s license, but
may be proven by the testimony of people who knew him. See Medina,
193 Ariz. at 511, 975 P.2d at 101 ¶23 (upholding finding of
victim’s age based upon testimony of girlfriend and medical
examiner, although the defendant also admitted the age in his
sentencing memorandum). Even without the birth certificate, the
uncontradicted evidence amply supports the trial court’s finding as
to Hale’s age. First, Hale’s son testified without objection to
Hale’s birthday (June 26, 1918) and age (77) as matters of family
history. See Ariz. R. Evid. 803(19). Second, the photographs of
Hale admitted at trial corroborated his age. Third, the coroner
testified without objection that the victim’s body was consistent
with that of a 77-year-old man. Finally, no evidence contradicted
the victim’s age. We agree with the trial court that the state
proved beyond a reasonable doubt that Hale was at least 70 years
old.
C. Pecuniary Gain
¶91 This aggravator requires a finding that “the defendant
committed the offense . . . in expectation of the receipt of
anything of pecuniary value.” A.R.S. § 13-703(F)(5).
Specifically, the state must prove that pecuniary gain was a
47
“motive, cause, or impetus for the murder and not merely the
result.” State v. Kayer, 194 Ariz. 423, 433, 984 P.2d 31, 41
(1999). This proof may be either by “tangible evidence or strong
circumstantial inference.” State v. Hyde, 186 Ariz. 252, 280, 921
P.2d 655, 683 (1996). Here, the record amply supports the trial
court’s findings “that the offense was motivated by the desire for
pecuniary gain and the objective was robbery of the victim; that
the death occurred in the course of and in furtherance of the
defendant’s efforts to obtain the victim’s property.”
¶92 The evidence supports, and Cañez does not dispute, the
trial court’s conclusion that the robbery was motivated by Cañez’
desire to get money for drugs. Yet Cañez contends that while the
robbery may have been motivated by pecuniary gain, the murder was
not. He attempts to distinguish the motive for the assaults from
the motive for the murder, arguing that because he did not intend
or need to kill in order to effect the robbery, pecuniary gain was
not a motive for the murder. Under this reasoning, because the
murder was assertedly not contemplated, it had no motive at all and
hence does not qualify for (F)(5) aggravation. Given the quantity
and quality of wounds inflicted, we find patently absurd the claim
that this victim’s death was unintentional.
¶93 More importantly, pecuniary gain aggravation does not
require a motive to kill. Aggravation under this factor may also
be based upon a causal connection between the pecuniary gain
48
objective and the killing. Kayer, 194 Ariz. at 433, 984 P.2d at 41
(holding that (F)(5) aggravation is established where pecuniary
gain was a “cause” of the murder). Thus, we have upheld the
pecuniary gain factor even where the killing may have been
unintentional. State v. Harding, 141 Ariz. 492, 500, 687 P.2d
1247, 1255 (1984) (upholding pecuniary gain factor where robbery
victim asphyxiated as a result of binding and gagging). Neither
does the fact that a killing is not necessary to effectuating the
underlying robbery preclude a pecuniary gain aggravation. State v.
Comer, 165 Ariz. 413, 429, 799 P.2d 333, 349 (1990). “When the
defendant comes to rob, the defendant expects pecuniary gain and
this desire infects all other conduct of the defendant.” State v.
LaGrand, 153 Ariz. 21, 35, 734 P.2d 563, 577 (1987). Thus, the
state need not prove the defendant intended beforehand to kill as
well as rob. Id. at 35-36, 734 P.2d at 577-78.
¶94 We recognize that “[a] murder committed in the context of
a robbery or burglary is not per se motivated by pecuniary gain.”
State v. Sansing, 200 Ariz. 347, 353, 26 P.3d 1118, 1124 ¶13
(2001). Nevertheless, killing the victim and sole witness of a
robbery is powerful circumstantial evidence of an intent to
facilitate escape or hinder detection and thus advance the
underlying pecuniary gain objective. See, e.g., State v. Hoskins,
199 Ariz. 127, 147, 14 P.3d 997, 1017 ¶87 (2000) (“When a robbery
victim is executed to facilitate the killer's escape and hinder
49
detection for the purpose of successfully procuring something of
value, the pecuniary gain motive is present.”); State v. Rockwell,
161 Ariz. 5, 14, 775 P.2d 1069, 1078 (1989) (even if committed
after property had been taken, “the murder was part and parcel of
the robbery because it resulted in eliminating the only witness to
the crime.”); State v. Correll, 148 Ariz. 468, 479, 715 P.2d 721,
732 (1986) (finding pecuniary gain aggravation where “the murders
were part of the overall scheme of the robbery with the specific
purpose to facilitate the robber’s escape.”). The inference is
particularly strong in cases, like this one, where the defendant
made no attempt to cover his face or otherwise conceal his identity
from the victim. State v. Greenway, 170 Ariz. 155, 165, 823 P.2d
22, 32 (1991) (finding pecuniary gain motive for murder of robbery
victim where defendant committed home invasion robbery without
attempting to cover his face despite knowing victims were inside).
¶95 We can conceive no nonpecuniary reason for Cañez to kill
this victim. Cañez assaulted Hale in order to secure his property,
and Hale’s death facilitated Cañez’ escape and hindered detection
of the robbery. Hale’s death was therefore directly caused by
Cañez’ desire for pecuniary gain and cannot be described as
accidental or unexpected such that (F)(5) aggravation might be
inappropriate. See State v. Trostle, 191 Ariz. 4, 18, 951 P.2d
869, 883 (1997) (“[A] significant consideration is whether the
50
killing was part of an overall robbery scheme, as opposed to being
unexpected or accidental.”).
¶96 This is not a case in which the robbery and murder can be
characterized as separate events for (F)(5) purposes. Sansing, 200
Ariz. at 353-54, 26 P.3d at 1126-27 ¶22 (finding murder committed
at least an hour after robbery a separate event). Where, as here,
the killing and robbery take place almost simultaneously, we will
not attempt to divine the evolution of the defendant’s motive in
order to discern when, or if, his reason for harming the victim
shifted from pecuniary gain to personal “amusement” or some other
speculative nonpecuniary drive. Medina, 193 Ariz. at 513, 975 P.2d
at 103 ¶31 (finding causal relationship between pecuniary gain
motive and murder attenuated by fact that killing was “removed in
time and place” from robbery) (quoting State v. Rinehardt, 190
Ariz. 579, 591, 951 P.2d 454, 466 (1997)).
¶97 We find beyond a reasonable doubt that Cañez’ desire for
pecuniary gain was a direct and immediate cause of the murder. The
trial court correctly found (F)(5) aggravation.
¶98 Cañez also argues that pecuniary gain was double counted
because it was both an aggravating factor of the felony murder and
an element of the underlying armed robbery. We have long since
rejected this argument because the pecuniary gain aggravator
requires factual findings apart from the elements of robbery.
State v. Carriger, 143 Ariz. 142, 161, 692 P.2d 991, 1010 (1984).
51
D. Especially Cruel, Heinous, or Depraved Offense
¶99 Aggravation will be found where the offense was committed
in “an especially heinous, cruel or depraved manner.” A.R.S. § 13-
703(F)(6). Any one of the three elements will establish (F)(6)
aggravation. State v. Gretzler, 135 Ariz. 42, 51, 659 P.2d 1, 10
(1983). Here, the trial court found the offense cruel as well as
heinous or depraved. On independent review, we find (F)(6)
aggravation established beyond a reasonable doubt due to the
cruelty of the attack.
1. Especially Cruel
¶100 The cruelty factor goes to the mental and physical
anguish suffered by the victim. State v. Clark, 126 Ariz. 428,
436, 616 P.2d 888, 896 (1980). Therefore, the victim must be
conscious for at least some of the wounds inflicted. State v.
Lopez, 163 Ariz. 108, 114-15, 786 P.2d 959, 965-66 (1990). The
state must also show that the defendant knew or should have known
that the victim would suffer. Trostle, 191 Ariz. at 18, 951 P.2d
at 883. Here, the court found that Hale was conscious at the time
of the initial stabbing and remained at least partially conscious
through the attempted strangulation and beating. The court
therefore concluded that Cañez “caused the victim pain and agony
for a sufficient period of time to constitute cruelty as defined by
law.”
52
¶101 On appeal, the state concedes that the evidence does not
support the trial court’s conclusion that the stab wounds preceded
the beating. Although in its closing argument the state argued
that the stabbing preceded the beating, the state now contends that
the evidence strongly suggests the stabbing came last. In either
event, the state believes the evidence supports the court’s finding
of mental and physical anguish. To demonstrate that Hale was
conscious throughout the robbery, the state offers the following
chronology based on Patterson’s testimony.
¶102 Cañez knocked on the door and forced his way in. From
outside, Patterson could hear a struggle. Cañez then opened the
door and told him to come in. As Patterson entered, he stepped
over Hale’s “squirming” body. When Patterson returned from loading
a television into the truck, he found Cañez strangling Hale with a
white cloth. Patterson turned to leave, but Cañez came to the door
and ordered him back in. When Patterson re-entered the house, he
saw Hale still moving on the ground. He also saw a folding knife
on a stand next to a chair (the police later found an open folding
knife, with a tiny amount of species-indeterminate blood on it,
lying on the chair). Patterson next saw Cañez strike Hale with his
fist and a frying pan. As Patterson left for the last time
carrying the stereo speakers, he stepped over Hale, who was raising
his right arm toward his head. The medical examiner testified that
this motion suggests Hale was conscious enough to feel pain in his
53
head. The medical examiner also testified that one of the stab
wounds was a defensive injury, indicating consciousness.
¶103 Cañez argues that the evidence does not prove beyond a
reasonable doubt that Hale remained conscious during the attack.
The medical examiner could not determine the order in which the
injuries were inflicted and testified that any of the ten blunt
force injuries to the head could have resulted in immediate
unconsciousness. Thus, Cañez argues that Hale may have been
unconscious from the first blow. In the alternative, Cañez notes
that the medical examiner also testified that one of the stab
wounds would have rendered Hale unconscious. Therefore, Cañez
concludes that whatever the order of injuries, Hale was probably
unconscious soon after attacks began. However, Patterson reported
seeing Hale moving at several points throughout the robbery. Thus,
whatever the sequence of attacks, the evidence demonstrates that
they did not result in sustained unconsciousness.
¶104 We concur with the trial court’s especial cruelty ruling.
This is not a case in which cruelty cannot be established because
one course of events consistent with consciousness is as likely as
another suggesting unconsciousness. See State v. Bolton, 182 Ariz.
290, 311, 896 P.2d 830, 851 (1995) (noting that a finding of
especial cruelty is precluded by inconclusive evidence of
consciousness). Patterson’s uncontroverted testimony indicates
that Hale was conscious throughout the robbery and assaults. This
54
is not a case in which the injuries were inflicted in quick
succession such that the victim had no opportunity to suffer or
contemplate his fate. Cf. State v. Soto-Fong, 187 Ariz. 186, 203-
04, 928 P.2d 610, 627-28 (1996). Instead, Cañez’ assaults were
punctuated by his removing property to the truck and ordering
Patterson to help in the theft. Finally, Cañez’ assertion that
Hale’s suffering did not constitute cruelty because it was not
intended or foreseeable is facially untenable. Cf. State v. Smith,
146 Ariz. 491, 504, 707 P.2d 289, 302 (1985) (finding no cruelty
because gunshot to the head could not reasonably be foreseen to
cause suffering). The state has carried its burden of proving
especial cruelty beyond a reasonable doubt.
2. Especially Heinous or Depraved
¶105 The trial court implicitly found the offense heinous or
depraved because the repeated attacks on the victim were
unnecessary to accomplishing the robbery, the victim was attacked
after he was rendered helpless, and the violence was gratuitous.
These findings are recognized factors for establishing heinousness
or depravity. Gretzler, 135 Ariz. at 52, 659 P.2d at 11. However,
heinousness or depravity aggravation must stand or fall with a
gratuitous violence finding because a showing of helplessness and
senselessness, without more, is not, as a matter of law,
sufficiently aggravating. Trostle, 191 Ariz. at 18, 951 P.2d at
883.
55
¶106 Violence beyond that necessary to kill is gratuitous.
Rinehardt, 190 Ariz. at 590, 951 P.2d at 465. Here, Cañez
attempted to strangle Hale, stabbed him six times, and delivered 21
blunt force injuries, ten of them to the head. He attacked Hale
with his fist, a frying pan, a laundry bag, and a knife. Cañez
argues that this violence was not grossly in excess of that
required to kill. This point is valid in light of the state’s
contention that the stabbing came last. On this interpretation of
the evidence, Cañez merely escalated his attacks until he succeeded
in killing Hale. Therefore, we cannot find beyond a reasonable
doubt that the violence exceeded that necessary to kill.
¶107 The trial court held the killing senseless because it was
unnecessary to the robbery. We agree. After incapacitating Hale
in the initial attack, Cañez could easily have removed the
property. He argues, without merit, that the killing cannot have
been both senseless and motivated by pecuniary gain. A murder is
senseless when unnecessary to the defendant’s criminal purpose.
State v. Lee, 189 Ariz. 608, 619, 944 P.2d 1222, 1233 (1997). The
purpose here was to take Hale’s property. Thus, there is no
inconsistency between the pecuniary gain objective and the
senselessness of the killing.
¶108 The trial court also found that the victim was helpless.
We agree. Helplessness is present when the victim is unable to
resist. Hyde, 186 Ariz. at 281, 921 P.2d at 684 (finding
56
helplessness where elderly victims had been subdued prior to most
vicious attacks). Here, the initial assault rendered Hale
incapable of resistance. The mere presence of a defensive stab
wound does not show that the victim was capable of resisting. See
State v. Miller, 186 Ariz. 314, 324, 921 P.2d 1151, 1161 (1996)
(attempt to resist does not preclude finding of helplessness).
¶109 Although we agree that the victim was helpless and the
killing senseless, these factors alone are not enough.
Accordingly, we cannot concur in the trial court’s finding of
heinousness or depravity. The defendant’s state of mind simply
does not rise to that level on this record. See Trostle. We
therefore conclude that evidence is not sufficient to justify a
finding of heinousness or depravity as an aggravating circumstance.
III. MITIGATING CIRCUMSTANCES
¶110 The sentencing court must “consider as mitigating
circumstances any factors . . . which are relevant in determining
whether to impose a sentence less than death, including any aspect
of the defendant’s character, propensities or record and any of the
circumstances of the offense.” A.R.S. § 703(G); see also Lockett
v. Ohio, 438 U.S. 586, 604 (1978). However, “it is not required to
find that evidence to be mitigating. If it does find that the
evidence is mitigating, the weight to be given that evidence is
within its discretion.” State v. Gonzales, 181 Ariz. 502, 515, 892
P.2d 838, 851 (1995). The defendant bears the burden of proving
57
mitigation circumstances by a preponderance of the evidence. State
v. McMurtrey, 143 Ariz. 71, 72-73, 691 P.2d 1099, 1100-01 (1984).
A. Statutory Mitigation
¶111 Arizona’s capital sentencing statute provides that it
shall be a mitigating factor if the “defendant’s capacity to
appreciate the wrongfulness of his conduct or to conform his
conduct to the requirements of law was significantly impaired.”
A.R.S. § 13-703(G)(1). This was the only statutory mitigation
advanced at trial or on appeal. Cañez argues that the trial court
erred in finding that he was not “significantly impaired.” In
support of this factor, Cañez points to evidence that he was
mentally retarded, was taking medication for seizures, suffered a
depressive disorder, had little education, was illiterate,
exhibited symptoms of brain damage, was probably a drug addict, and
was intoxicated at the time of the offense.
¶112 Cañez’ primary contention is that his intoxication and/or
craving for drugs at the time of the murder was enough to establish
(G)(1) mitigation. Although Cañez was using crack cocaine the
night of the murder, there was no evidence of his degree of
intoxication nor “that it overwhelmed his ability to control his
physical behavior.” State v. Stanley, 167 Ariz. 519, 530-31, 809
P.2d 944, 955-56 (1991) (upholding finding of no (G)(1) mitigation
and contrasting with State v. Rossi II, 154 Ariz. 245, 250-51, 741
P.2d 1223, 1228-29 (1987), in which there was uncontroverted expert
58
testimony that defendant’s addiction was so great that his “whole
personality began to evolve around the use of cocaine”). Here,
Cañez was in control of himself to the extent that he drove away
from the scene of the crime with his headlights turned off and went
home to clean up and change clothes after selling Hale’s property.
See Rinehardt, 190 Ariz. at 591-92, 951 P.2d at 466-67.
¶113 The evidence of brain damage, mental illness, and
retardation was conflicting. Three psychological experts evaluated
Cañez. First, Cañez’ psychological expert, Dr. Tatro, examined him
on June 10, 1998. He diagnosed borderline personality disorder
with antisocial features, intermittent explosive personality
disorder, depressive disorder recurrent, and possible organic brain
syndrome. Next, on referral by Tatro, Dr. Blackwood examined Cañez
specifically for neuropsychological problems (brain damage or
dysfunction) on July 21, 1998. His finding of indications of
organic brain damage was qualified due to suggestions that Cañez
may not have been trying at the tests. Finally, the state’s
psychological expert, Dr. Youngjohn, evaluated Cañez on August 6,
1998. Youngjohn found no evidence of mental illness or brain
damage, but diagnosed antisocial personality disorder and the
closely related psychopathic personality disorder. He found Cañez
a dangerous person who is likely to re-offend. Youngjohn also
testified that his, Blackwood’s, and Tatro’s testings all indicated
that Cañez was probably “faking it” to exaggerate symptoms. Tatro
59
did not test for malingering, but, based upon his clinical
interview, he opined that Cañez was trying as hard as he could.
Youngjohn determined that when Cañez’ intelligence, as tested by
both Tatro and himself, was adjusted for socioeconomic background,
it fell within the average range. Tatro did not deem such an
adjustment necessary.
¶114 “The trial judge has broad discretion in determining the
weight and credibility given to mental health evidence.” State v.
Doerr, 193 Ariz. 56, 69, 969 P.2d 1168, 1181 ¶64 (1998). On
independent review, we accord great deference to the trial court’s
conclusions because the “trial judge is in the best position to
evaluate credibility and accuracy, as well as draw inferences,
weigh, and balance.” Hoskins, 199 Ariz. at 149, 14 P.3d at 1019
¶97 (internal quotations omitted) (quoting State v. Bible, 175
Ariz. 549, 609, 858 P.2d 1152, 1212 (1993)). Presented with
conflicting psychological evidence, the trial court credited
Youngjohn, who agreed with Tatro’s antisocial personality disorder
diagnosis but not his borderline personality disorder diagnosis.
In any event, both personality disorders are insufficient to
establish (G)(1) mitigation. See Hoskins, 199 Ariz. at 149, 14
P.3d at 1019 ¶96 (agreeing with trial court that antisocial and
borderline personality disorders are conduct disorders not
sufficient to establish (G)(1) mitigation). Moreover, despite any
psychological problems, the evidence demonstrates that Cañez
60
understood the wrongfulness of his conduct. We agree with the
trial court’s conclusion that this statutory mitigating factor is
not present because Cañez was not significantly impaired.
B. Non-Statutory Mitigation
¶115 Cañez argues that the trial court improperly rejected
each of his proposed bases for non-statutory mitigation.
1. Drug and Alcohol Use
¶116 The court found that though Cañez was somewhat impaired,
there was not “a sufficient connection between the use of alcohol
or drugs and the offense for this to constitute a sufficiently
mitigating factor.” Cañez argues that his impairment due to
intoxication, even if not sufficient for statutory mitigation,
should be considered. However, a causal nexus between the
intoxication and the offense is required to establish non-statutory
impairment mitigation. Kayer, 194 Ariz. at 438, 984 P.2d at 46
¶54. Cañez offered no evidence of the degree of his intoxication,
its connection with his actions, or any resulting impairment. A
possibility of impairment will not suffice. Id. We agree with the
trial court that this factor is, at best, minimally mitigating.
2. Felony Murder
¶117 The court found the felony murder conviction not a
“sufficiently mitigating circumstance” because it determined beyond
a reasonable doubt that Cañez personally killed Hale and that his
conduct was intentional. Contrary to Cañez’ assertion, this
61
finding is clearly supported by the evidence. A conviction for
felony murder is not mitigating when, as here, the “defendant
intended to kill or knew with substantial certainty that his action
would cause death.” West, 176 Ariz. at 450, 862 P.2d at 210
(internal quotations and alterations omitted). We find the felony
murder conviction not mitigating.
3. Defendant’s Good Character
¶118 The court found that Cañez had not proven his good
character by a preponderance of the evidence. Cañez contends that
this factor was dismissed out of hand. However, he points to no
evidence in support of his alleged good character. To the
contrary, his prior convictions argue against a finding of good
character. See Gonzales, 181 Ariz. at 515, 892 P.2d at 851. We
find this factor unproven.
4. Traumatic Childhood and Dysfunctional Family
¶119 The trial court acknowledged that Cañez had endured
“violence, suicide, mental illness, and poverty” as a child, but
determined that these experiences were “not sufficiently connected
to his conduct at the time of the offense to constitute a
substantial relevant mitigating circumstance.” A defendant’s
difficult childhood is mitigating only where causally connected to
his offense. State v. Clabourne II, 194 Ariz. 379, 387, 983 P.2d
748, 756 ¶35 (1999). Tatro suggested that Cañez may have killed
this elderly victim out of displaced rage toward his abusive
62
parents.1 However, such a tenuous, speculative nexus is
insufficient to constitute significant mitigation. See Hoskins,
199 Ariz. at 151-52, 14 P.3d at 1021-22 ¶¶113, 115. We find this
factor unproven.
5. Defendant’s Love of Family
¶120 The trial court found that Cañez had loving relationships
with family members but did not find this fact a “substantial
relevant mitigating circumstance.” Loving family relationships are
mitigating. Trostle, 191 Ariz. at 22, 951 P.2d at 887. However,
like the trial court, we find that this factor carries little
weight.
6. Mental Illness or Impairment
¶121 The court found that Cañez had a personality disorder and
low average intelligence or borderline mental retardation.2
Nevertheless, the court found that Cañez possessed “sufficient
intelligence to make reasonable judgments regarding his conduct.”
Neither his personality disorder nor his intelligence were judged
a “sufficiently mitigating factor to call for leniency.” The trial
1
Among other things, as the sixth of nine children, Cañez was
frequently chained by his hands to a table or bed when he
misbehaved, began using marijuana at age 7, began using heroin at
age 13, witnessed his father attempt suicide with a knife, and saw
substantial intra-family violence, including shootings.
2
Mitigation evidence showed a family history of epilepsy and
mental health problems, including the suicides of Cañez’ father and
brother. Cañez reportedly attempted suicide three times while a
teenager.
63
court heard expert testimony that Cañez’ personality disorder(s)
may have led him to impulsive, explosive, or psychotic reactions
when under stress. However, this fact is entitled to little weight
since Cañez brought the stress upon himself by electing to commit
the robbery.
¶122 “[T]he weight to be given mental impairment should be
proportional to a defendant's ability to conform or appreciate the
wrongfulness of his conduct.” Trostle, 191 Ariz. at 21, 951 P.2d
at 886. Here, this factor is entitled to little weight because, as
noted in our (G)(1) discussion, the court found, and the evidence
demonstrates, that Cañez appreciated the wrongfulness of his
conduct. Moreover, Cañez has failed to establish a causal link
between any propensity to lose control and the robbery which he had
in mind for at least several hours before carrying it out. See
Kayer, 194 Ariz. at 438, 984 P.2d at 46 ¶54 (causal nexus between
mental disorder and crime required for mitigation). We agree with
the trial court that this factor is insufficient to call for
leniency.
7. Defendant’s Good Conduct in Court
¶123 The court found defendant’s conduct, though appropriate,
not a relevant mitigating factor. We agree. See Trostle, 191
Ariz. at 22, 951 P.2d at 887.
8. Disparate Sentence of Co-Defendant
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¶124 “A disparity in sentences between co-defendants and/or
accomplices can be a mitigating circumstance if no reasonable
explanation exists for the disparity.” Kayer, 194 Ariz. at 439,
984 P.2d at 47 ¶¶57-58. Here, Patterson, Cañez’ co-defendant,
received a sentence of only ten years. The court did not find this
fact mitigating because Patterson’s lesser sentence was justified
by his minor “participation in the offense, his lack of any prior
record, his cooperation with law enforcement and his agreement to
testify.” In contrast, Cañez has a substantial criminal record,
lied to the police, and was found to be the only killer. The trial
court correctly found the disparity in this case reasonable and
hence not mitigating. See Kayer, 194 Ariz. at 439, 984 P.2d at 47
¶¶57-58 (no sentence disparity mitigation where co-defendant
entered plea agreement, provided evidence, and was not the actual
killer).
9. Cumulative Mitigation
¶125 Cañez also contends that because each factor was rejected
individually, the court improperly failed to consider their
cumulative effect. However, in its Special Verdict the trial court
explicitly held that “the cumulative effect of all of the
mitigation offered by the defendant . . . is not sufficiently
substantial to call for leniency.”
IV. INDEPENDENT REWEIGHING
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¶126 We re-weigh all factors, both aggravating and mitigating.
In light of the four statutory aggravating circumstances
established beyond a reasonable doubt, the absence of statutory
mitigation, and the minimal weight of the non-statutory mitigating
circumstances, we independently conclude that the mitigating
circumstances are insufficient to call for leniency. In reaching
this conclusion, we are aware that our decision today removes the
depravity and heinousness component of (F)(6). Even with that
removal, however, the remaining (F)(6) cruelty finding,
particularly when coupled with the other aggravators, carries
sufficient weight to uphold the defendant’s sentence.
¶127 Although Cañez does not raise the issue on appeal, we
note that because the trial court found, and we agree, that Cañez
personally killed Hale, Enmund v. Florida, 458 U.S. 782 (1982), and
Tison v. Arizona, 481 U.S. 137 (1987), are satisfied.
CONSTITUTIONAL CLAIMS RAISED TO PREVENT FEDERAL PRECLUSION
¶128 1. The death penalty is per se cruel and unusual
punishment. Rejected by Gregg v. Georgia, 428 U.S. 153, 186-87
(1976); State v. Salazar, 173 Ariz. 399, 411, 844 P.2d 566, 578
(1992).
¶129 2. Execution by lethal injection is cruel and unusual
punishment. Rejected by State v. Hinchey, 181 Ariz. 307, 315, 890
P.2d 602, 610 (1995).
66
¶130 3. The statute unconstitutionally requires imposition of
the death penalty whenever at least one aggravating circumstance
and no mitigating circumstances exist. Rejected by State v.
Bolton, 182 Ariz. 290, 310, 896 P.2d 830, 850 (1995).
¶131 4. The death statute is unconstitutional for its failure
to permit defendants to “death qualify” the sentencing judge.
Rejected by State v. West, 176 Ariz. 432, 454-55, 862 P.2d 192,
214-15 (1993), overruled on other grounds by State v. Rodriguez,
192 Ariz. 58, 63-64 n.7, 961 P.2d 1006, 1011-12 n.7 ¶¶28-30 (1998).
¶132 5. The death statute is unconstitutional because it
fails to guide the sentencing court. Rejected by State v. Van
Adams, 194 Ariz. 408, 422, 984 P.2d 16, 30 ¶55 (1999).
¶133 6. Arizona’s death statute unconstitutionally requires
defendants to prove that their lives should be spared. Rejected by
State v. Fulminante, 161 Ariz. 237, 258, 778 P.2d 602, 623 (1988).
¶134 7. The statute unconstitutionally fails to require
either cumulative consideration of multiple aggravating factors or
that the trial court make specific findings as to each mitigating
factor. Rejected by Van Adams, 194 Ariz. at 422, 984 P.2d at 30
¶55.
¶135 8. Arizona’s statutory scheme for considering mitigating
evidence is unconstitutional because it limits full consideration
of that evidence. Rejected by State v. Mata, 125 Ariz. 233, 242,
609 P.2d 48, 57 (1980).
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¶136 9. The mitigation statute is unconstitutional because
there are no statutory standards for weighing. Rejected by State
v. Atwood, 171 Ariz. 576, 645-46 n.21, 832 P.2d 593, 662-63 n.21
(1992), disapproved on other grounds by State v. Nordstrom, 200
Ariz. 229, 241, 25 P.3d 717, 729 ¶25 (2001).
¶137 10. Arizona’s capital sentencing statute insufficiently
channels the sentencer’s discretion in imposing death sentences.
Rejected by West, 176 Ariz. at 454, 862 P.2d at 214.
¶138 11. Arizona’s death statute is unconstitutionally
defective because it fails to require the state to prove that death
is appropriate. Rejected by State v. Gulbrandson, 184 Ariz. 46,
72, 906 P.2d 579, 605 (1995).
¶139 12. The prosecutor’s discretion to seek the death
penalty unconstitutionally lacks standards. Similar claim rejected
by Salazar, 173 Ariz. at 411, 844 P.2d at 578.
¶140 13. Arizona’s death sentence has been applied
arbitrarily and in a discriminatory manner against impoverished
males whose victims have been Caucasian. Discriminatory
application claim rejected by West, 176 Ariz. at 455, 862 P.2d at
215. Arbitrary application claim rejected by State v. Lee, 185
Ariz. 549, 553, 917 P.2d 692, 696 (1996).
¶141 14. The constitution requires proportionality review of
a defendant’s death sentence. Rejected by Salazar, 173 Ariz. at
416, 844 P.2d at 583.
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¶142 15. There is no meaningful distinction between capital
and non-capital cases. Rejected by Salazar, 173 Ariz. at 411, 844
P.2d at 578.
CONCLUSION
¶143 For the reasons set forth, we reverse the conviction of
one count of armed robbery and affirm all remaining convictions and
sentences.
_________________________________
Charles E. Jones
Chief Justice
CONCURRING:
____________________________________
Ruth V. McGregor, Vice Chief Justice
____________________________________
Stanley G. Feldman, Justice
____________________________________
Thomas A. Zlaket, Justice
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