SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-04-0361-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2001-014970
JUAN VELAZQUEZ, )
)
Appellant. )
) O P I N I O N
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable Jeffrey S. Cates, Judge
AFFIRMED
________________________________________________________________
TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Capital Litigation Section
Patricia A. Nigro, Assistant Attorney General
Attorneys for State of Arizona
LAW OFFICES OF RICHARD D. GIERLOFF, P.C. Phoenix
By Richard D. Gierloff
Attorney for Juan Velazquez
________________________________________________________________
B A L E S, Justice
¶1 After convicting Juan Velazquez of seven counts of child
abuse and one count of first degree murder, a jury determined that
he should receive the death penalty for the murder. We have
jurisdiction over this mandatory appeal under Article 6, Section
5(3), of the Arizona Constitution and Arizona Revised Statutes
(“A.R.S.”) section 13-4031 (2001).
FACTUAL AND PROCEDURAL BACKGROUND
¶2 In September 2001, Juan Velazquez was living with Virginia
Venegas and her daughters, Isabella and Liana. Isabella was three
years old, Liana was twenty months old, and Venegas was pregnant with
Velazquez’s child. Velazquez and Venegas had dated for about four
months and had lived together for two months.
¶3 On the night of September 24, 2001, Velazquez severely beat
Isabella. Venegas saw Velazquez shoving Isabella against a closet
door. Venegas became upset and argued with Velazquez, who said he
would move out. Later that night, the couple reconciled.
¶4 The next morning, Velazquez assaulted Liana while Venegas
was at a job interview. Angry with the twenty-month-old girl,
Velazquez held Liana’s mouth shut to prevent her from crying,
squeezed her stomach, and then repeatedly swept her feet out from
under her, causing her to fall backwards and hit her head on the floor.
After falling several times, Liana could not get up and did not
respond to Velazquez’s voice. Velazquez placed her on the couch and
covered her with a pillow.
¶5 When Venegas returned home, Velazquez told her Liana was
asleep on the couch and that Venegas should leave her alone.
Velazquez showered and went to work. According to Velazquez, Liana
was alive and breathing when he left. A few hours later, Venegas
discovered that Liana was not breathing and called Velazquez to tell
him that she thought Liana was dead. Velazquez told Venegas not to
2
do anything until he returned.
¶6 When Velazquez arrived, Liana was in fact dead. Instead
of calling 911, Velazquez went to his mother’s house and got a cement
rock and some wire. He tied the rock to Liana’s body and had Venegas
drive him to a canal, where he dumped Liana’s body.
¶7 The next day, September 26, 2001, Venegas reported Liana
missing. When police arrived, Velazquez said that he and Venegas
had discovered only that morning that she was gone. An extensive
search for Liana ensued.
¶8 Shortly after the search began, police contacted the
girls’ father. He came to the condominium where Venegas lived and
immediately noticed that Isabella’s face was swollen and bruised.
Isabella was then examined at a hospital. She had extensive bruising,
a skull fracture, and two cephalhematomas (bruises associated with
swelling caused by bleeding under the surface bones of the skull).
Isabella told police that Velazquez had hurt both her and Liana.
¶9 Police interviewed Velazquez and Venegas, who both
initially denied any wrongdoing. Venegas was re-interviewed the next
day, September 27, 2001, and she admitted that Liana was dead and
that she had driven Velazquez to a canal where he had dumped the girl’s
body. Police then arrested Velazquez. Confronted with the
information provided by Venegas, Velazquez confessed to killing
Liana and assaulting Isabella. He also admitted that he had
previously physically abused both girls. Police divers recovered
3
Liana’s body from the canal on September 28, 2001.
¶10 The medical examiner concluded that Liana died from blunt
force trauma to her head. The autopsy revealed a “full thickness”
skull fracture, internal hemorrhaging, and swelling of the brain.
The swelling exerted pressure at the base of the skull, which impaired
respiratory and cardiac functions and eventually caused Liana’s
death. Liana also had many other blunt force injuries to her head,
face, and body. The medical examiner opined that Liana suffered at
least six separate blows before her death.
¶11 Velazquez was indicted for the felony murder of Liana,
three counts of child abuse for injuries suffered by Liana, and four
counts of child abuse for injuries suffered by Isabella. On September
2, 2004, a jury convicted Velazquez of all charges. On October 8,
2004, the same jury determined that Velazquez should receive the
death penalty for the murder after finding three aggravating factors:
Velazquez had been previously convicted of a serious offense; the
murder was especially cruel; and the victim was under the age of
fifteen. See A.R.S. § 13-703(G)(2), (6), (9) (Supp. 2001).1 Based
on the verdicts, the trial judge sentenced Velazquez to death for
1
From April 2001 through August 2002, the aggravating
circumstances were listed in sub-section (G) of A.R.S. § 13-703. See
2001 Ariz. Sess. Laws, ch. 260, § 1; 2002 Ariz. Sess. Laws, 5th Spec.
Sess., ch. 1, § 1. In 2002, following the Supreme Court’s decision
in Ring v. Arizona, 536 U.S. 584, 609 (2002), § 13-703 was amended
and the sub-section listing the aggravators was designated (F)
instead of (G). See 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1,
§ 1. We refer to the statute in effect at the time of the murder.
4
the murder and imposed sentences with a cumulative length of sixty
years for the non-capital crimes.
DISCUSSION
¶12 Velazquez raises nine issues on appeal. For the reasons
discussed below, we affirm his convictions and sentences.
A. Jury Selection Issues
1. Witherspoon v. Illinois Challenge
¶13 Velazquez challenges the trial court’s excusing six
potential jurors for cause under Witherspoon v. Illinois, 391 U.S.
510 (1968), and its progeny. We review a trial court’s decision to
strike a potential juror for cause for abuse of discretion. State
v. Ellison, 213 Ariz. 116, 137 ¶ 88, 140 P.3d 899, 920, cert. denied,
127 S. Ct. 506 (2006).
¶14 Under the Sixth and Fourteenth Amendments to the United
States Constitution, a criminal defendant is entitled to an impartial
jury. Witherspoon, 391 U.S. at 518; see also State v. Anderson
(Anderson I), 197 Ariz. 314, 318-19 ¶ 9, 4 P.3d 369, 373-74 (2000).
Potential jurors in a capital case cannot be removed for cause “simply
because they voiced general objections to the death penalty or
expressed conscientious or religious scruples against its
infliction.” Witherspoon, 391 U.S. at 522. A juror may, however,
be removed for cause if his views on the death penalty “would ‘prevent
or substantially impair the performance of his duties as a juror in
accordance with his instructions and his oath.’” Wainwright v. Witt,
5
469 U.S. 412, 424 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45
(1980)); accord Anderson I, 197 Ariz. at 318-19 ¶ 9, 4 P.3d at 373-74.
¶15 “[I]n applying this standard, reviewing courts are to
accord deference to the trial court,” Uttecht v. Brown, 127 S. Ct.
2218, 2223 (2007), because it “is in a superior position to determine
the demeanor and qualifications of a potential juror,” id. at 2231.
All of the challenged jurors (Jurors 4, 33, 37, 52, 75, and 137)
indicated during voir dire that opposition to the death penalty made
them unable to follow the law. The trial court did not abuse its
discretion in concluding that their views on the death penalty would
substantially impair the performance of their duties as jurors.
¶16 Velazquez also argues that the Supreme Court’s decision
in Blakely v. Washington, 542 U.S. 296 (2004), and this Court’s
decision in State ex rel. Thomas v. Granville (Baldwin), 211 Ariz.
468, 123 P.3d 662 (2005), narrow the grounds on which a potential
juror may be excused for cause. These decisions, however, do not
modify Witherspooon and Witt or otherwise alter the standards for
qualifying jurors in capital cases. Cf. Uttecht, 127 S. Ct. at 2224
(summarizing principles of Witherspoon and Witt).
2. Morgan v. Illinois Challenge
¶17 Velazquez next contends that his Sixth and Fourteenth
Amendment rights to a fair and impartial jury were violated because
two “death presumptive” jurors served on the jury. Velazquez did
not object at trial but argues that seating these jurors was
6
structural error requiring automatic reversal. Alternatively,
Velazquez contends that we should find fundamental error, which
affords relief only if he “establish[es] both that fundamental error
exists and that the error in his case caused him prejudice.” State
v. Henderson, 210 Ariz. 561, 567 ¶ 20, 115 P.3d 601, 607 (2005).
¶18 A defendant is entitled to “a fair trial by a panel of
impartial, indifferent jurors.” Morgan v. Illinois, 504 U.S. 719,
727 (1992) (internal quotation marks omitted). “A juror who will
automatically vote for the death penalty” without considering the
presence of mitigating circumstances does not meet this threshold
requirement of impartiality. Id. at 729. Under the due process
guarantees of the Sixth and Fourteenth Amendments, “[i]f even one
such juror is empaneled and the death sentence is imposed,” the
sentence must be reversed. Id.
¶19 Simply because a juror favors the death penalty does not,
however, necessarily preclude the juror from serving on a jury; if
the juror is “willing to put aside his opinions and base his decisions
solely upon the evidence, he may serve.” See State v. Martinez, 196
Ariz. 451, 459 ¶ 28, 999 P.2d 795, 803 (2000) (citation omitted).
This can be determined through proper voir dire. Morgan, 504 U.S.
at 729; Martinez, 196 Ariz. at 459 ¶ 28, 999 P.2d at 803.
¶20 One of the challenged jurors (Juror 62) clearly stated that
he could consider a sentence less than death under certain mitigating
circumstances. The other (Juror 139) also stated, in responding to
7
the juror questionnaire, that he would not automatically impose a
death sentence. Juror 139 did not alter his answer when the trial
court asked the jurors in voir dire if any of them thought a person
who intentionally kills another should automatically receive the
death penalty. In response to defense counsel, Juror 139 later said
that he “could not see” any circumstance in which a penalty less than
death would be appropriate if a defendant intended to commit the
murder, was glad he committed the murder, and had no defense. These
remarks did not indicate that the juror would invariably impose a
death sentence in the context of this case, and defense counsel made
no attempt to further elucidate the juror's views. The trial court
did not commit reversible error by empaneling these two jurors.
B. Aggravation Phase Issues
1. Double-counting of Victim’s Age
¶21 Velazquez next argues that the jury impermissibly
considered Liana’s age in finding both the (G)(9) victim “under
fifteen years of age” and the (G)(6) “especially cruel” aggravators.
The Court, he acknowledges, has previously held that a sentencing
judge may use a victim’s age to establish two aggravating factors,
provided that the judge does not weigh this fact “twice in balancing
aggravating and mitigating circumstances.” State v. Medina, 193
Ariz. 504, 512 ¶ 25, 975 P.2d 94, 102 (1999). Velazquez contends
that we should reexamine this precept because juries now determine
if a death sentence is appropriate and Baldwin “disavowed” the
8
“rubric” of weighing.
¶22 A jury, like a sentencing judge, may use one fact to find
multiple aggravators, so long as the fact is not weighed twice when
the jury assesses aggravation and mitigation. Cf. Brown v. Sanders,
126 S. Ct. 884, 892 (2006) (holding that jury’s consideration of
invalid sentencing factor will not render sentence unconstitutional
if jurors may “give aggravating weight to the same facts and
circumstances” in connection with other valid sentencing factors).
Velazquez is also mistaken in characterizing Baldwin as generally
rejecting the concept of “weighing” in capital sentencing. See infra
¶¶ 39-40. Finally, we conclude that the jury did not rely on Liana’s
age to find both aggravating factors.
¶23 The trial court, at Velazquez’s request, instructed the
jury: “In determining whether an aggravating circumstance exists,
you may consider only those statutory aggravating circumstances set
forth in these instructions. You may not consider the age of the
victim in any way in deciding whether the murder was committed in
an especially cruel manner.” In closing arguments, the prosecutor
noted that Liana, a twenty-month-old child, had experienced great
physical pain and mental anguish when she was murdered by the adult
in whose care she had been placed. By acknowledging that Liana was
a helpless child when arguing she had suffered pain and anguish, the
prosecutor did not improperly urge the jury to base its finding of
the (G)(6) aggravator on Liana’s age.
9
¶24 “We presume that the jurors followed the court’s
instructions” that they should not consider Liana’s age in regard
to the (G)(6) aggravator and that the lawyers’ comments were not
evidence. See State v. Newell, 212 Ariz. 389, 403 ¶ 68, 132 P.3d
833, 847, cert. denied, 127 S. Ct. 663 (2006). Velazquez has not
demonstrated that any impermissible double-counting occurred.
2. Probable Cause Finding on Aggravating Circumstances
¶25 Velazquez argues that his Sixth, Eighth, and Fourteenth
Amendment rights were violated because no probable cause finding was
made on the alleged aggravating circumstances before they were
presented to the jury. We have, however, rejected the argument that
aggravating factors must be “preliminarily considered by the grand
jury or [a] neutral arbiter and included by specific allegation as
a probable cause finding in the charging document.” McKaney v.
Foreman ex rel. County of Maricopa, 209 Ariz. 268, 270 ¶ 10, 100 P.3d
18, 20 (2004).
3. Especially Cruel
¶26 Velazquez contends that his Eighth Amendment rights were
violated because the jury’s finding of the (G)(6) “especially cruel”
aggravating circumstance was not properly channeled. We review
issues of constitutional law de novo. State v. McGill, 213 Ariz.
147, 159 ¶ 53, 140 P.3d 930, 942 (2006), cert. denied, 127 S. Ct.
1914 (2007).
¶27 To comport with the Eighth Amendment, a capital sentencing
10
system “must channel the sentencer’s discretion by ‘clear and
objective standards’ that provide ‘specific and detailed guidance,’
and that ‘make rationally reviewable the process for imposing a
sentence of death.’” Godfrey v. Georgia, 446 U.S. 420, 428 (1980)
(internal footnotes omitted). Although Arizona’s “especially
heinous, cruel or depraved” aggravator is facially vague, it can be
remedied with appropriate narrowing instructions, “whether a judge
or a jury makes the sentencing” decision. Ellison, 213 Ariz. at 138
¶ 96, 140 P.3d at 921. “Thus, the proper inquiry is whether the jury
instructions” sufficiently narrowed the “especially cruel”
aggravator in this case. Id.
¶28 During the aggravation phase of trial, the jury was
instructed as follows:
Cruelty involves the infliction of physical pain and/or
mental anguish on a victim before death. A crime is
committed in an especially cruel manner when a defendant
either intended to inflict mental anguish or physical pain
upon the victim, or reasonably foresaw that there was a
substantial likelihood that the manner in which the crime
was committed would cause the victim to experience mental
anguish and/or physical pain before death.
The victim must be conscious for at least some portion of
the time when the pain and/or anguish was inflicted.
¶29 Velazquez concedes that the definition of “cruelty”
comports with Arizona law, but claims that the instruction defining
“especially cruel manner” was not sufficiently narrow. We have,
however, sustained instructions nearly identical to those given
here. See State v. McCall, 139 Ariz. 147, 161, 677 P.2d 920, 934
11
(1983) (“The defendant must intend that the victim suffer or
reasonably foresee that there is a substantial likelihood that the
victim will suffer as a consequence of the defendant's acts.”). The
instructions here provided clear and objective standards and
properly channeled the jury’s discretion.
4. Previously Convicted of a Serious Offense
¶30 Velazquez challenges the application of the (G)(2)
“previously convicted of a serious offense” aggravating circumstance
to his case. Because Velazquez did not object to the presentation
of this aggravator at trial, we review solely for fundamental error.
Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d at 607.
¶31 The factual basis for the (G)(2) aggravator was
Velazquez’s conviction on count five of the indictment, in which the
jury found him “guilty of knowing Child Abuse under circumstances
likely to cause death or serious physical injury (involving
Isabella[’s] . . . skull fracture/head injury).” The indictment
alleged that this abuse had occurred “on or between the 24th day of
September, 2001 and the 25th day of September, 2001,” while Liana’s
murder occurred on September 25, 2001.
¶32 Under the version of (G)(2) in effect when Velazquez
murdered Liana, this aggravator could not be based on convictions
for serious offenses committed contemporaneously with the capital
murder. See State v. Rutledge, 206 Ariz. 172, 178 ¶ 25, 76 P.3d 443,
449 (2003) (holding that aggravator could not apply to attempted
12
murder and armed robbery committed contemporaneously with murder).
The (G)(2) aggravator could, however, be based on convictions for
serious offenses that were committed separately from the murder, even
if the murder and serious offense convictions resulted from the same
trial. See id. at 176-77 n.4 & ¶¶ 20-21, 76 P.3d at 447-48 & n.4.
After redesignating (G)(2) as (F)(2) in 2002, the legislature in 2003
amended the statute to provide that a “serious crime” committed
contemporaneously with the murder is sufficient to establish this
aggravator. See 2003 Ariz. Sess. Laws, ch. 255, § 1; Rutledge, 206
Ariz. at 176 n.3 ¶ 17, 76 P.3d at 447 n.3.
¶33 Velazquez argues that the evidence showed that the abuse
causing Isabella’s skull fracture occurred at the same time as his
murderous assault on Liana; the 2001 version of (G)(2) therefore did
not apply; and applying the 2003 amended version of (F)(2) to him
would violate the Ex Post Facto Clause of the Federal Constitution.
He further contends that the jury’s consideration of the “invalid”
(G)(2) sentencing factor renders his death sentence unconstitutional
under Brown, 126 S. Ct. 884.
¶34 The applicable version of (G)(2) is the statute in effect
in 2001 when Velazquez committed the murder. See Rutledge, 206 Ariz.
at 176 n.3 ¶ 17, 76 P.3d at 447 n.3. Under that statute, Velazquez
was entitled to an instruction requiring the jury to find, for
purposes of the (G)(2) aggravator, that the abuse of Isabella
described in count five had occurred separately from the murder of
13
Liana. See id. at 178 ¶ 25, 76 P.3d at 449. He did not, however,
request such an instruction, and he has not established the prejudice
necessary for its omission to be fundamental error.
¶35 In his confessions, Velazquez admitted assaulting
Isabella on the night before he murdered Liana. He now argues that
his attacks on the two girls must have occurred simultaneously
because when Isabella was taken to the hospital on the morning of
September 26, her injuries indicated she had been assaulted within
the prior twenty-four hours. We disagree. The evidence regarding
Isabella’s injuries did not establish exactly when she had received
the skull fracture, but it was consistent with Velazquez’s account
of having separately assaulted Isabella before killing Liana. No
reasonable juror could have concluded that Velazquez, contrary to
his own statements, assaulted Isabella as part of the same series
of events as Liana’s murder on September 25.
¶36 Because we conclude that the (G)(2) aggravator was
properly applied to Velazquez under the 2001 version of the statute,
we reject his argument that this aggravator was based on the 2003
amended version of (F)(2) in violation of the Ex Post Facto Clause.
We similarly reject his argument that the jury’s improper
consideration of an invalid sentencing factor requires reversal of
his sentence under Brown.
14
C. Penalty Phase Issues
1. Jury Instructions
¶37 Velazquez alleges five errors in the penalty phase jury
instructions: (1) the sentencing process was mischaracterized as
“weighing”; (2) the sentencing process was mischaracterized as
“fact-finding”; (3) the nature of the sentencing decision-making
process was never correctly described; (4) the instructions created
a presumption of death; and (5) the consideration of mitigation
evidence was improperly restricted.2 Although we generally review
de novo whether the penalty phase jury instructions correctly state
the law, Baldwin, 211 Ariz. at 471 ¶ 8, 123 P.3d at 665, absent an
objection by the defendant, we review for fundamental error, see
State v. Anderson (Anderson II), 210 Ariz. 327, 345 ¶ 72, 111 P.3d
369, 387 (2005).
¶38 With respect to the first four alleged errors, Velazquez
contends that the instructions given are inconsistent with our
subsequent opinion in Baldwin. We disagree.
¶39 Baldwin prospectively “discourage[d] the use of
instructions that inform jurors that they must find that mitigating
circumstances outweigh aggravating factors before they can impose
2
Velazquez raises a similar challenge to the instructions given
in voir dire. He claims the sentencing process was mischaracterized
as both fact-finding and weighing and that the instructions created
a presumption of death. Because his arguments regarding the voir
dire mirror the arguments made regarding the penalty phase
instructions, our analysis applies to both.
15
a sentence other than death.” 211 Ariz. at 473 ¶ 21, 123 P.3d at
667 (emphasis added). The trial court did not use such “outweighing”
language in instructing the jury here. Instead, the trial court,
over an objection by Velazquez, used the term “weigh” in instructing
the jurors that they must individually determine the existence and
weight of any mitigation and then “weigh it against [any] aggravating
circumstances . . . to determine whether the mitigation is
sufficiently substantial to call for leniency.” Contrary to
Velazquez’s argument, Baldwin does not generally prohibit trial
courts from informing jurors that they must each weigh mitigation
evidence against aggravation evidence.
¶40 Instead, Baldwin reaffirms that each juror must
individually determine the existence and significance of any
mitigating factors and whether such factors are “sufficiently
substantial” to warrant leniency. “Each juror must determine
whether, in that juror’s individual assessment, the mitigation is
of such quality or value that it warrants leniency in a particular
case.” Id. at 473 ¶ 18, 123 P.3d at 667. Although this process might
be characterized as the juror “weighing” mitigating and aggravating
factors, a juror need not determine that mitigation “outweighs”
aggravation in order to vote for leniency. See id. at 471 n.3 ¶ 12,
123 P.3d at 665 n.3. Thus, Baldwin noted that jury instructions in
future cases should avoid “outweighing” language and should clearly
explain “that a juror may not vote to impose the death penalty unless
16
he or she finds, in the juror’s individual opinion, that ‘there are
no mitigating circumstances sufficiently substantial to call for
leniency.’” Id. (quoting A.R.S. § 13-703(E)).
¶41 Velazquez also misconstrues Baldwin with regard to the
finding of mitigating circumstances. The case does not, as Velazquez
contends, assert that the finding of mitigating circumstances is not
a fact question. Baldwin makes clear that the finding of mitigating
circumstances is a fact question; it is only the decision whether
any mitigating circumstances are sufficiently substantial to warrant
leniency that is not a fact question. Id. (“[T]he determination
whether mitigation is sufficiently substantial to warrant leniency
is not a fact question . . . , but rather is a sentencing decision
to be made by each juror based upon the juror’s assessment of the
quality and significance of the mitigating evidence that the juror
has found to exist.”).
¶42 The trial court here properly instructed the jurors that
the “[d]etermination of what circumstances are mitigating and the
weight to be given to any mitigation is for each juror to resolve
individually based upon all the evidence presented during all phases
of this trial.” The trial court further instructed the jurors that
“[i]n reaching a reasoned, moral judgment about which penalty is
justified and appropriate, you must decide how compelling or
persuasive the totality of the mitigating factors are when compared
against the totality of the aggravating factors.” We reject
17
Velazquez’s argument that the instructions given here differed from
those approved in Baldwin in a way that inaccurately described the
nature of the sentencing process.
¶43 Additionally, Velazquez claims that a presumption of death
was created when the jury was instructed: “[I]f you unanimously find
that the mitigation is not sufficiently substantial to call for
leniency, you must return a verdict of death.” This instruction
comports with A.R.S. § 13-703(F) (stating that the trier of fact
“shall impose a sentence of death if the [trier of fact]
finds . . . that there are no mitigating circumstances sufficiently
substantial to call for leniency”). Instructions such as those given
here do not offend the Eighth Amendment as long as the jury is allowed
to consider all relevant mitigating evidence. State v. Tucker, ___
Ariz. ___, ___ ¶ 73, 160 P.3d 177, 196 (2007) (citing Kansas v. Marsh,
126 S. Ct. 2516, 2525-26 (2006); Blystone v. Pennsylvania, 494 U.S.
299, 306-07 (1990)).
¶44 Velazquez also contends that the jury was restricted in
considering mitigation evidence because it was instructed to
“consider any other information admitted as evidence that is relevant
in determining whether to impose a sentence less than death, so long
as it relates to an aspect of the defendant’s background, character,
propensities, record, or circumstances of the offense.” These
instructions are consistent with both Lockett v. Ohio, 438 U.S. 586,
604 (1978), and A.R.S. § 13-703(H). The jury was told that it could
18
consider factors other than those submitted by the parties as long
as they were relevant. The instructions did not improperly restrict
the jury’s consideration of mitigation evidence.
2. Prosecutorial Misconduct
¶45 Velazquez alleges three instances of prosecutorial
misconduct in the State’s penalty phase opening statement.3 We will
reverse a conviction for prosecutorial misconduct if “(1) misconduct
is indeed present; and (2) a reasonable likelihood exists that the
misconduct could have affected the jury’s verdict, thereby denying
[the] defendant a fair trial.” Anderson II, 210 Ariz. at 340 ¶ 45,
111 P.3d at 382 (citation omitted).
¶46 Velazquez first contends that the prosecutor improperly
suggested that one of the defense mental health experts, psychologist
Ricardo Weinstein, had fabricated his report and engaged in
“result-reaching.” Defense counsel did not refer to Weinstein in
his penalty phase opening statement. The prosecutor, anticipating
Weinstein would testify, told the jurors that “Dr. Weinstein’s QEEG
is interesting.” (The term QEEG or quantitative EEG refers to a
quantitative encephalogram, a type of brain wave test that is also
3
Velazquez also claims that the prosecutor committed misconduct
by asking a potential juror in voir dire if he would “be able to sift
through all the baloney and make [his] decision.” Rather than
describing mitigation evidence as baloney, as Velazquez suggests,
this comment addresses the need for jurors to sort through all of
the evidence presented to determine the factors that the juror finds
mitigating. The comment, while perhaps inartful, did not raise an
objection or constitute misconduct requiring reversal of the
convictions or sentences below.
19
called brain mapping.) The prosecutor said Weinstein had given
Velazquez “this QEEG which is the regular EKG [sic], but come[s] out
in colors. And somehow he can interpret the colors. And I don’t
know where the colors come from. When he interprets them, he can
see brain dysfunction.” The prosecutor also told the jury that
Weinstein “knew what the results of the QEEG was [sic] going to be
before he gave it,” because he “believes that all people on death
row who actually killed someone have brain dysfunction.”
¶47 Velazquez did not object to these comments, and we thus
review for fundamental error. State v. Roque, 213 Ariz. 193, 228
¶ 154, 141 P.3d 368, 403 (2006). Weinstein ultimately did not testify
at trial due to what Velazquez describes as logistical problems.
Weinstein’s report and the results of the QEEG test he administered
were not admitted into evidence.
¶48 “A prosecutor has wide latitude in presenting arguments
to the jury . . . .” State v. Morris, ___ Ariz. ___, ___ ¶ 58, 160
P.3d 203, 216 (2007). It is improper, however, “to imply unethical
conduct on the part of an expert witness” in the absence of
evidentiary support. State v. Hughes, 193 Ariz. 72, 86 ¶ 59, 969
P.2d 1184, 1198 (1998).
¶49 The prosecutor indicated that Weinstein had used a dubious
QEEG test to justify pre-determined conclusions and thereby implied
unethical conduct by the expert. These comments were improper
because the prosecutor lacked evidentiary support for her attack on
20
Weinstein’s anticipated testimony. Indeed, the prosecutor
acknowledged in her opening statement that the State had not yet
interviewed this expert and did not “really” know what he was going
to say.
¶50 Although the prosecutor’s statements were improper,
Velazquez cannot show that they caused prejudice sufficient to
constitute fundamental error. Weinstein, as noted, did not testify
and his report and test results were not admitted. After the
prosecutor’s remarks in opening statement, there were only two other
brief references to Weinstein during the penalty phase. Psychiatrist
Jack Potts, the defense’s primary mental health expert, noted in his
report, which was admitted, that he had “relied upon other experts
in the information they obtained regarding Mr. Velasquez [sic] as
well as his history,” and he listed Weinstein among five experts whose
reports he had reviewed. Potts testified that he also reviewed
Weinstein’s audio-taped interview of Velazquez, but did not comment
further on anything done by Weinstein. The State’s mental health
expert, psychologist Bradford Bayless, acknowledged on
cross-examination that he had not reviewed any completed report or
evaluation by Weinstein. The jury thus did not receive Weinstein’s
results. Moreover, the jury was instructed that the lawyer’s
comments were not evidence, and we presume that jurors follow their
instructions, Newell, 212 Ariz. at 403 ¶ 68, 132 P.3d at 847.
¶51 Velazquez also claims that the prosecutor implied “that
21
defense counsel [was] complicite [sic] in fabricating medical
mitigation evidence.” In her opening statement, the prosecutor said
that Weinstein had produced QEEG test results a month after the expert
had submitted an affidavit saying his testing equipment had
malfunctioned. After describing these events, the prosecutor
remarked, “Now, I don’t know how that could happen.” Defense counsel
objected, and the trial court instructed the jury to disregard the
statement.
¶52 Velazquez’s objection preserved for appeal his challenge
to the prosecutor’s remark. Roque, 213 Ariz. at 228 ¶ 154, 141 P.3d
at 403. Although “it is improper to impugn the integrity or honesty
of opposing counsel,” Newell, 212 Ariz. at 403 ¶ 66, 132 P.3d at 847,
it does not appear that the prosecutor’s comment was directed at the
defense attorney. Rather, it seems to be directed at Weinstein, a
fact that Velazquez appears to concede.
¶53 This comment was nonetheless improper, because it implies
unethical conduct by an expert in the absence of evidentiary support.
Hughes, 193 Ariz. at 86 ¶ 59, 969 P.2d at 1198. The jurors, however,
were promptly instructed to disregard the prosecutor’s statement
after the objection was made. The jurors were also instructed at
the beginning and close of the penalty phase that statements by the
lawyers were not evidence. Given the trial court’s corrective
actions, no reversible error occurred. See Anderson II, 210 Ariz.
at 342 ¶ 50, 111 P.3d at 384.
22
¶54 Velazquez also alleges that the prosecutor committed
misconduct by implying that Potts fabricated a diagnosis. Again,
Velazquez did not object at trial, so we review for fundamental error.
Roque, 213 Ariz. at 228 ¶ 154, 141 P.3d at 403.
¶55 The prosecutor highlighted the fact that Potts changed his
initial diagnosis of Velazquez after reviewing the report prepared
by the State’s expert. Based on these remarks, Velazquez contends
that the prosecutor here, like the prosecutor in Hughes, “improperly
argued that mental health experts in general create excuses for
criminals.”
¶56 The prosecutor’s remarks did not improperly argue that
Potts had fabricated a diagnosis. “[T]here is no constitutional
prohibition against the State arguing that the [mitigation] evidence
is not particularly relevant or that it is entitled to little weight.”
Anderson II, 210 Ariz. at 350 ¶ 97, 111 P.3d at 392. The prosecutor’s
arguments accurately discussed the inconsistencies between Potts’s
reports and testimony in an effort to show that this mitigation
evidence deserved little weight. See id.; Roque, 213 Ariz. at 229
¶ 156, 141 P.3d at 404. Therefore, the arguments did not constitute
misconduct.
¶57 When addressing prosecutorial misconduct, we look not only
to whether each alleged instance of misconduct warrants reversal on
its own, but also to whether it “contribute[s] to a finding of
persistent and pervasive misconduct.” Roque, 213 Ariz. at 228 ¶ 155,
23
141 P.3d at 403. If the cumulative effect of the conduct “so
permeate[s] the entire atmosphere of the trial with unfairness that
it denie[s the defendant] due process,” id. at 230 ¶ 165, 141 P.3d
at 405, it can warrant reversal even if the individual instances would
not do so by themselves. Even when viewed cumulatively, the instances
of misconduct that occurred here do not warrant reversal.
D. Independent Review
¶58 Because Liana’s murder occurred before August 1, 2002,
this Court independently reviews the “findings of aggravation and
mitigation and the propriety of the death sentence.” A.R.S. §
13-703.01(A) (2001); see 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch.
1, § 7.
1. Aggravating Circumstances
a. Previously Convicted of a Serious Offense
¶59 To establish the (G)(2) aggravator, the State must prove
beyond a reasonable doubt that Velazquez has been or “was previously
convicted of a serious offense, whether preparatory or completed.”
A.R.S. § 13-703(G)(2). The jury found Velazquez “guilty of knowing
Child Abuse under circumstances likely to cause death or serious
physical injury (involving Isabella[’s] . . . skull fracture/head
injury).” This crime is a “serious offense” under A.R.S. §
13-703(I)(2)(f). Moreover, this offense was established based on
Velazquez’s assault on Isabella before he killed Liana and did not
arise from the same set of events as the murder. The (G)(2) aggravator
24
was proven beyond a reasonable doubt.4
b. Especially Cruel
¶60 The (G)(6) “especially cruel” aggravator is established
if the State proves beyond a reasonable doubt that “the victim
consciously experienced physical or mental pain prior to death, and
the defendant knew or should have known that suffering would occur.”
State v. Trostle, 191 Ariz. 4, 18, 951 P.2d 869, 883 (1997) (citation
omitted).
¶61 The State proved beyond a reasonable doubt that Liana
experienced physical pain. Velazquez told police that he suffocated
Liana, squeezed her stomach, and swept her feet out from under her,
causing her to hit her head on the ground. After being tripped several
times, Liana could not to get up and did not respond to Velazquez’s
voice. Nonetheless, she was alive and still breathing.
¶62 The medical examiner’s testimony revealed that Liana had
sustained several blunt force injuries before her death, as evidenced
by extensive bruising to her head, face, and body; a bloody nose;
and abrasions to her face. She also suffered a fractured skull, which
4
Our conclusion on this point is not affected by Velazquez’s
telling Bayless in a July 2004 interview that he had knocked both
Liana and Isabella down at the same time by sweeping their feet out
from under them. The tape recording Bayless made of this interview
was provided to the prosecutor and defense counsel after the guilt
and aggravation phases of Velazquez’s trial; the recording was
admitted into evidence during the mitigation phase. Velazquez may
have assaulted Isabella both the night before and the same day he
killed Liana, but we conclude that Isabella’s skull fracture resulted
from an assault preceding the murder, consistent with Velazquez’s
confession in September 2001.
25
caused brain swelling and blood collection under her scalp and skull.
The head wounds impaired her breathing and cardiac functions,
ultimately causing her death.
¶63 In our independent review, we find that Liana was conscious
when she sustained the skull fracture that caused her death. We also
find that Liana experienced intense physical pain as she was
suffocated, squeezed, tripped, and left to die. The (G)(6)
aggravator was proven beyond a reasonable doubt.
c. Victim Under Fifteen Years of Age
¶64 To establish the (G)(9) aggravator, the State must prove
that Velazquez “was an adult at the time the offense was committed
. . . and the murdered person was under fifteen years of age.” A.R.S.
§ 13-703(G)(9). Velazquez was twenty-three years old at the time
of the crime. Liana was twenty months old. The (G)(9) aggravator
was proven beyond a reasonable doubt.
2. Mitigating Circumstances
¶65 Velazquez presented two statutory and five non-statutory
mitigating circumstances. He first alleged that his “capacity to
appreciate the wrongfulness of his conduct or to conform his conduct
to the requirements of law was significantly impaired.” See id. §
13-703(H)(1). To establish this mitigating circumstance, Velazquez
presented evidence that he has a personality disorder. Although
“personality or character disorders usually are not sufficient to
satisfy this statutory mitigator,” State v. Kayer, 194 Ariz. 423,
26
437 ¶ 49, 984 P.2d 31, 45 (1999), we nonetheless consider evidence
of a personality disorder to determine if it constitutes a
non-statutory mitigating circumstance, State v. McMurtrey, 136 Ariz.
93, 102, 664 P.2d 637, 646 (1983).
¶66 Three mental health professionals testified that
Velazquez suffers from a personality disorder. Stan Cabanski, a
psychologist who performed an evaluation of Velazquez at age
seventeen, testified that Velazquez then exhibited “trends” of
Borderline Personality Disorder (“BPD”). Cabanski explained that
he did not officially diagnose Velazquez with BPD at the time, because
a personality disorder cannot be diagnosed until age eighteen.
Bayless, a psychologist retained by the State, similarly diagnosed
Velazquez with BPD. Potts, the psychiatrist retained by the defense,
also testified, though his diagnosis was less clear. At trial, Potts
testified that Velazquez suffers from Borderline Schizophrenia, but
he also noted that Velazquez was receiving treatment for
Schizoaffective Disorder and probable BPD. In a letter dated August
17, 2004, however, Potts diagnosed Velazquez with “a Mood Disorder,
[not otherwise specified] or possibly a Schizoaffective Disorder.”
¶67 All three experts testified that Velazquez has trouble
controlling his impulses; however, Bayless’s report expressly
states: “Velazquez was fully aware of his behavior at the time of
the offense. He knew it was wrong and was aware of the potential
damage to the children. Mr. Velazquez’[s] abusive behavior was
27
neither the result of some psychotic process nor the byproduct of
neurological impairment.”
¶68 The second mitigating circumstance presented was
Velazquez’s age. This is a mitigating circumstance pursuant to
A.R.S. § 13-703(H)(5). In assessing this mitigator, we consider not
only the defendant’s chronological age, but also “his level of
intelligence, maturity, past experience, and level of participation
in the killings.” State v. Poyson, 198 Ariz. 70, 80 ¶ 37, 7 P.3d
79, 89 (2000).
¶69 Velazquez was twenty-three years old when he murdered
Liana. He was working as a home loan officer and had two daughters
of his own. He is of average intelligence, and many family members
testified that he served as a father-figure to his younger siblings.
Velazquez also has a lengthy criminal history. As a minor, Velazquez
belonged to a street gang, had several curfew violations, and
violated his juvenile probation by carrying a concealed weapon and
abusing drugs. As an adult, Velazquez was arrested nine times before
his arrest in this case. None were felony arrests; many concerned
domestic disputes with a former girlfriend.
¶70 Age is established as a mitigating factor, but we afford
it little weight given Velazquez’s criminal history, average
intelligence, maturity level, and the fact that he committed the
murder on his own. See id. at 80-81 ¶ 37, 7 P.3d at 89-90 (stating
that defendant’s age will be given little weight if “defendant has
28
a substantial criminal history or was a major participant in the
commission of the murder”).
¶71 Velazquez’s third proffered mitigating circumstance was
the physical and emotional abuse he suffered as a child. The fourth
mitigating circumstance offered was Velazquez’s dysfunctional
family. Because these two mitigating factors are related, we discuss
them together.
¶72 Velazquez was raised in a toxic environment. As a child,
he suffered physical and emotional abuse at the hands of his father
and neglect by his mother. Both parents were substance abusers, and
his mother’s family has a history of mental illness. We find that
these non-statutory mitigating circumstances were sufficiently
proven by a preponderance of the evidence.
¶73 The fifth mitigating circumstance presented was
Velazquez’s drug and alcohol abuse. Velazquez presented evidence
that his substance abuse began at a very early age. This mitigating
circumstance was proven by a preponderance of the evidence, but
Velazquez did not establish that he was under the influence of drugs
or alcohol at the time of the murder.
¶74 The last two mitigating circumstances presented were
Velazquez’s remorse and the impact the execution would have on his
family. Velazquez spoke in allocution at the end of the penalty
phase. He then expressed remorse for the murder, apologized to
Liana’s family, and accepted responsibility for his conduct. He also
29
presented evidence that his family would be negatively affected by
his execution. Both mitigating factors were established by a
preponderance of the evidence.
3. Propriety of Death Sentence
¶75 In reviewing the propriety of the death sentence, “we
consider the quality and the strength, not simply the number, of
aggravating and mitigating factors.” State v. Glassel, 211 Ariz.
33, 55 ¶ 93, 116 P.3d 1193, 1215 (2005), cert. denied, 126 S. Ct.
1576 (2006) (citation omitted). Velazquez presented considerable
mitigation evidence at trial, demonstrating a painful history of
physical and emotional abuse, family dysfunction, substance abuse,
and mental illness. On balance, however, we do not find these
circumstances sufficiently substantial to warrant a sentence less
than death given the circumstances of the crime. We thus uphold
Velazquez’s death sentence.
E. Issues Preserved for Federal Review
¶76 To avoid preclusion, Velazquez raises fourteen additional
constitutional claims that he states have been rejected in previous
decisions by the Supreme Court or this Court. The attached Appendix
lists the claims raised by Velazquez and the decisions he identifies
as rejecting them.
30
CONCLUSION
¶77 For the foregoing reasons, we affirm Velazquez’s
convictions and sentences.
_______________________________________
W. Scott Bales, Justice
CONCURRING:
_______________________________________
Ruth V. McGregor, Chief Justice
_______________________________________
Rebecca White Berch, Vice Chief Justice
_______________________________________
Michael D. Ryan, Justice
_______________________________________
Andrew D. Hurwitz, Justice
31
APPENDIX
Velazquez raises the following claims to preserve them for
federal review:
1. The death penalty is per se cruel and unusual punishment. Both
the United States Supreme Court and this Court have rejected this
argument. Gregg v. Georgia, 428 U.S. 153, 186-87 (1976); State v.
Salazar, 173 Ariz.399, 411, 844 P.2d 566, 578 (1992); State v.
Gillies, 135 Ariz. 500, 507, 662 P.2d 1007, 1014 (1983).
2. Execution by lethal injection is cruel and unusual punishment.
This Court has previously determined lethal injection to be
constitutional. State v. Hinchey, 181 Ariz. 307, 315, 890 P.2d 602,
610 (1995).
3. The statute unconstitutionally requires imposition of the death
penalty whenever at least one aggravating circumstances and no
mitigating circumstances exist. This Court has rejected this
challenge. Walton v. Arizona, 497 U.S. 639, 648 (1990), overruled
on other grounds by Ring v. Arizona, 536 U.S. 584, 609 (2002); State
v. Miles, 186 Ariz. 10, 19, 918 P.2d 1028, 1037 (1996); State v.
Bolton, 182 Ariz. 290, 310, 896 P.2d 830, 850 (1995).
4. The death statute is unconstitutional because it fails to guide
the sentencing jury. This Court has rejected this. State v.
Greenway, 170 Ariz. 155, 164, 823 P.2d 22, 31 (1991).
5. Arizona’s death statute unconstitutionally requires defendants
to prove that their lives should be spared. This Court rejected this
claim in State v. Fulminate, 161 Ariz. 237, 258, 778 P.2d 602, 623
(1988).
6. The statute unconstitutionally fails to require either
cumulative consideration of multiple mitigating factors or that the
jury make specific findings as to each mitigating factor. This Court
has rejected this claim. State v. Gulbrandson, 184 Ariz. 46, 69,
906 P.2d 579, 602 (1995); State v. Ramirez, 178 Ariz. 116, 131, 871
P.2d 237, 252 (1994); State v. Fierro, 166 Ariz. 539, 551, 804 P.2d
72, 84 (1990).
7. Arizona’s statutory scheme for considering mitigating evidence
is unconstitutional because it limits full consideration of that
evidence. This Court has rejected that contention. See State v.
Mata, 125 Ariz. 233, 242, 609 P.2d 48, 57 (1980).
32
8. The statute is unconstitutional because there are no statutory
standards for weighing. This was rejected in State v. Atwood, 171
Ariz. 576, 645-46 n.21(4), 832 P.2d 593, 662-63 n.21(4) (1992),
overruled on other grounds by State v. Nordstrom, 200 Ariz. 229, 25
P.3d 717 (2001).
9. Arizona’s death statute insufficiently channels the sentencer’s
discretion in imposing the death sentence. This Court has rejected
this. State v. West, 176 Ariz. 432, 454, 862 P.2d 192, 214 (1993);
Greenway, 170 Ariz. at 164, 823 P.2d at 31.
10. Arizona’s death statute is unconstitutionally defective because
it fails to require the state to prove that death is appropriate.
This court rejected this argument in Gulbrandson, 184 Ariz. at 72,
906 P.2d at 605.
11. The prosecutor’s discretion to seek the death penalty
unconstitutionally lacks standards. This Court rejected a similar
claim in Salazar, 173 Ariz. at 411, 844 P.2d at 578.
12. Death sentences in Arizona have been applied arbitrarily and
irrationally and in a discriminatory manner against impoverished
males whose victims have been Caucasian. This Court rejected the
argument that the death penalty has been applied in a discriminatory
manner in West, 176 Ariz. at 455, 862 P.2d at 215.
13. The Constitution requires a proportionality review of a
defendant’s death sentence. This Court rejected this argument. See
Salazar, 173 Ariz. at 416, 844 P.2d at 583; State v. Serna, 163 Ariz.
260, 269-70, 787 P.2d 1056, 1065-66 (1990).
14. There is no meaningful distinction between capital and
non-capital cases. This was rejected in Salazar, 173 Ariz. at 411,
844 P.2d at 578.
33