408 P.3d 408
Ariz.2018Background
- On Feb. 19, 2007, Bryan Hulsey shot at police during a traffic stop in Glendale; Officer Anthony Holly died and Officer Goitia was wounded. Hulsey was arrested and charged with first-degree murder of a peace officer, attempted first-degree murder, and weapons misconduct; the State sought death.
- At trial the jury convicted Hulsey of first-degree murder of an on-duty officer and attempted murder; found two aggravators ((F)(2) prior serious offense; (F)(10) victim was on-duty officer); and returned a death sentence and a consecutive nine-year sentence for attempted murder.
- Contested pretrial issues included: destruction/non-preservation of small bullet fragments seen on an autopsy x-ray (the body was later cremated), and Hulsey’s motions to exhume/dismiss for bad-faith destruction of evidence.
- Guilt-phase disputes included admission of evidence of methamphetamine use, requests for lesser-included/offense and causation instructions, and sufficiency of evidence that Hulsey’s bullet killed Officer Holly.
- Penalty-phase and constitutional issues included Hulsey’s serious mental illness claim, admissibility and jury access to videotaped mitigation statements, prosecutorial misconduct claims, and whether jurors should have been told Hulsey was ineligible for release/parole (Simmons issue).
- This appeal: the Court affirmed convictions and the non-death sentence, vacated the death sentence under Lynch v. Arizona (Lynch III) and Simmons analysis, and remanded for a new penalty-phase proceeding.
Issues
| Issue | Hulsey (Plaintiff) Argument | State (Defendant) Argument | Held |
|---|---|---|---|
| Destruction/preservation of bullet fragments (exhume/dismiss) | Fragments would likely exculpate Hulsey; failure to recover/ preserve and cremation violated due process and warranted dismissal or evidentiary hearing | Fragments were only potentially useful; no bad faith shown; extraction would have been mutilating and of uncertain value; trial court properly denied relief | Trial court did not abuse discretion; evidence was only potentially exculpatory and Hulsey failed to show bad faith or entitlement to dismissal/exhumation |
| Compel witness (Kostas) to testify over Fifth Amendment concern | Kostas should be compelled; her testimony was needed | Kostas had reasonable grounds to fear prosecution and could invoke Fifth Amendment; trial court properly allowed privilege | Trial court properly denied compulsion; no abuse of discretion |
| Excusal of juror for cause (Juror 123) | Struck for views on death penalty improperly; Witherspoon prohibits excusing jurors for general objections | Juror’s questionnaire and answers showed he could not impose death; voir dire revealed inconsistent/unreliable answers and substantial impairment | Trial court did not abuse discretion in striking juror for cause |
| Admission of meth-use evidence (Rule 404(b)) | Evidence of prior drug use was improper other-act evidence and prejudicial | Evidence showed motive/state of mind/agitation and was probative; probative value not substantially outweighed by prejudice; no limiting instruction requested | Admission was proper; no abuse of discretion and no fundamental error |
| Lesser-included offenses & causation instruction | Requested second-degree, manslaughter, negligent homicide, and modified causation RAJI 2.03; evidence was inconclusive as to intent and causation | Evidence showed purposeful aiming/firing; no reasonable basis to convict only of lesser offenses; standard RAJI causation was sufficient | Trial court properly refused lesser-included and modified causation instructions; no fundamental error |
| Sufficiency of evidence that Hulsey’s bullet killed Holly | Forensic gaps (missing fragments, ShotSpotter, lack of matching bullets) left insufficient proof of causation | Eyewitness testimony and circumstantial evidence supported causation beyond a reasonable doubt | Conviction was supported by substantial evidence |
| Constitutionality of statutory aggravator and first-degree definition | (F)(10) and §13-1105(A)(3) improperly rely on victim status and fail to narrow death-eligible class; first-degree requires premeditation | Precedent permits victim-status aggravators and statute narrows class (on-duty officers); first-degree element need not require premeditation for these enumerated murders | Statute and aggravator upheld as constitutional |
| Penalty-phase: categorical exemption for serious mental illness (SMI) | Evolving standards and diminished culpability of SMI persons bar death; jurors cannot reliably evaluate SMI mitigation | Supreme Court precedents do not create categorical bar; mental illness is mitigation for jury to weigh | No categorical Eighth Amendment bar; SMI evidence may be considered as mitigation |
| Admission/use of videotaped mitigation and jury review during deliberations | Defense tapes should be admitted into evidence and available to jurors during deliberations | Court allowed tapes to be presented in mitigation but not admitted into evidence or replayed in deliberations to avoid undue emphasis | Court did not abuse discretion in denying admission and jury replay; no fundamental error |
| Simmons/parole-ineligibility instruction | Trial court’s preliminary aggravation instructions mentioning possible release created false choice; jurors should have been told Hulsey could never be released (Simmons) | State argues future dangerousness not specifically at issue or defendant waived request; any error was harmless | Simmons triggered because future dangerousness was at issue; trial court erred in precluding instruction and error was not harmless; new penalty phase required |
| Cumulative prosecutorial misconduct | Multiple improper attacks on defense witnesses/counsel and improper arguments deprived Hulsey of a fair trial | Misconduct was limited/curable by instructions and did not prejudice verdict | Misconduct condemned but not so pervasive as to deny due process; convictions stand but admonition to prosecutors given |
Key Cases Cited
- Lynch v. Arizona, 136 S. Ct. 1818 (U.S. 2016) (S. Ct. decision prompting vacatur of death sentence and guidance on informing juries about parole ineligibility)
- Youngblood v. Arizona, 488 U.S. 51 (U.S. 1988) (bad-faith standard for nondisclosure/destruction of potentially useful evidence)
- Trombetta v. California, 467 U.S. 479 (U.S. 1984) (government duty to preserve evidence that is obviously exculpatory and irreplaceable)
- Simmons v. South Carolina, 512 U.S. 154 (U.S. 1994) (when future dangerousness is at issue, jury must be informed of parole ineligibility to avoid false choice)
- Shafer v. South Carolina, 532 U.S. 36 (U.S. 2001) (clarifies when Simmons applies and significance of timing of instruction)
- Witherspoon v. Illinois, 391 U.S. 510 (U.S. 1968) (limits on excluding jurors for general objections to death penalty)
- Beck v. Alabama, 447 U.S. 625 (U.S. 1980) (defendant entitled to lesser-included instruction where evidence warrants)
- State v. Willits, 96 Ariz. 184 (Ariz. 1964) (instruction permitting adverse inference from destroyed evidence)