State of Arizona v. Jason Eugene Bush
423 P.3d 370
Ariz.2018Background
- On May 29, 2009, Jason Bush and accomplices entered the Flores home; Bush shot and killed Raul "Junior" Flores and nine‑year‑old Brisenia Flores and shot Gina Gonzales, who survived.
- Evidence linking Bush included DNA, fingerprints, items seized from a co‑defendant's home, Bush's wounding consistent with return fire, and Bush's post‑arrest statements and diagram of the scene.
- Bush was indicted on two counts of first‑degree murder, attempted first‑degree murder, aggravated assault, burglary, robbery and aggravated robbery; a jury convicted him on all counts.
- The jury found three statutory aggravators (multiple homicides, prior serious offense on same occasion, and murder of a person under 15) and returned death sentences for both murders; non‑capital counts produced a total of 78 years’ imprisonment.
- Bush appealed, raising multiple procedural and constitutional issues (change of venue, voir dire, confession voluntariness, Simmons/parole instruction, victim‑impact evidence, double punishment, and proportionality/mitigation review).
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Bush) | Held |
|---|---|---|---|
| Pretrial publicity / change of venue | Publicity was factual and did not warrant presumption of prejudice; voir dire adequate | Publicity was pervasive and created a carnival atmosphere requiring venue change or continuance | Denial affirmed; no presumed or actual prejudice shown |
| Juror questionnaire Q27 (non‑statutory aggravators) | Questionnaire solicited reasons that jurors might favor death but court instructed jurors those are not aggravators | Q27 injected impermissible non‑statutory aggravators and confused jurors | No abuse of discretion; question erroneous in design but jurors presumed to follow instructions; future use disapproved |
| Individual voir dire request | Court allowed detailed voir dire and questionnaire; individual voir dire not required | Requested individual/in‑chambers voir dire to elicit honest answers given publicity and questionnaire | Denial not abuse of discretion; ample voir dire and questionnaires satisfied Morgan requirements |
| Presentation of gruesome photos/911 during voir dire | State opposed conditioning jurors on expected evidence; voir dire may probe whether evidence would impair jurors | Needed to expose those who would be substantially impaired and remove them | Denial proper; voir dire cannot precommit jurors or condition them with trial evidence |
| Confession voluntariness / sua sponte hearing | Confession was admitted; State says Bush forfeited suppression challenge by not moving pretrial or objecting | Confession involuntary due to coercion; court should have held voluntariness hearing sua sponte | Forfeited by failure to timely move; no duty to hold sua sponte hearing absent contemporary objection or clear evidence of involuntariness |
| Simmons / parole‑ineligibility instruction | State: Bush forfeited Simmons claim by not requesting correct instruction; he had opportunity to inform jury | Jury was told life could be release‑eligible; due process required correct parole‑ineligibility instruction under Simmons | Simmons not structural error; Bush failed to request instruction or argue at trial; fundamental‑error review applies and claim fails here |
| Victim‑impact statement / prosecutorial misconduct | State: victim impact testimony and limited photos were proper to show victims’ uniqueness and impact | Statement contained impermissible characterizations/opinions and injected non‑statutory aggravation; violated Confrontation/Fifth Amendment | Denial of mistrial affirmed; statements permissible in context and limiting instruction cured any prejudice; no prosecutorial misconduct established |
| Double punishment (concurrent sentences) | Sentences for robbery, assault, burglary and attempted murder are distinct and satisfy Gordon test | Some non‑capital sentences duplicate harms and therefore must run concurrently | Sentences upheld; offenses involved different elements/times/harms so consecutive terms lawful |
| Death sentence abuse of discretion / mitigation weight | State: aggravators supported; mitigation not sufficiently substantial to call for leniency | Mitigation (mental illness, delusions, troubled history) required leniency; death disproportionate | Abuse‑of‑discretion review affirmed death sentences; reasonable juror could reject mitigation as insufficient |
Key Cases Cited
- State v. Forde, 233 Ariz. 543 (affirming convictions and death sentences in related co‑defendant case) (used as factual and procedural precedent)
- State v. Bible, 175 Ariz. 549 (discussing presumption of prejudice from pretrial publicity and juror instruction deference)
- State v. Cruz, 218 Ariz. 149 (standards for evaluating pretrial publicity and juror impartiality)
- Simmons v. South Carolina, 512 U.S. 154 (plurality) (due process right to inform jury of parole ineligibility when future dangerousness at issue)
- Jackson v. Denno, 378 U.S. 368 (right to voluntariness hearing when confession’s use is contemporaneously challenged)
- Wainwright v. Sykes, 433 U.S. 72 (no right to voluntariness hearing absent objection; contemporaneous challenge required)