Case Information
*1 IN THE
S UPREME C OURT OF THE S TATE OF A RIZONA S TATE OF A RIZONA , Appellee/Cross-Appellant, v.
J OEL R ANDU E SCALANTE -O ROZCO , Appellant/Cross-Appellee.
No. CR-13-0088-AP Filed January 12, 2017 Appeal from the Superior Court in Maricopa County The Honorable Warren J. Granville, Judge No. CR 2007-008288
AFFIRMED IN PART, REVERSED AND REMANDED IN PART COUNSEL:
Mark Brnovich, Arizona Attorney General, Dominic Draye, Solicitor General, Lacey Stover Gard, Chief Counsel, Capital Litigation Section, and Jeffrey L. Sparks (argued), Assistant Attorney General, Phoenix, Attorneys for State of Arizona
Gregory J. Kuykendall (argued) and Theresa Loken, Kuykendall & Associates, Tucson, Attorneys for Joel Randu Escalante-Orozco David J. Euchner, Tucson, Attorney for Amicus Curiae Arizona Attorneys for Criminal Justice
JUSTICE TIMMER authored the opinion of the Court, in which CHIEF JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES BRUTINEL and BOLICK joined.
JUSTICE TIMMER, opinion of the Court:
Joel Randu Escalante-Orozco was sentenced to death after a
jury found him guilty of first degree murder, sexual assault, and first degree
burglary. We have jurisdiction over his automatic appeal and the State’s
cross-appeal under article 6, section 5(3) of the Arizona Constitution and
A.R.S. § 13-4031.
[1]
We affirm Escalante-Orozco’s convictions and non-death
sentences. To comply with the United States Supreme Court’s decision in
Lynch v. Arizona
,
BACKGROUND [2] In March 2001, Escalante-Orozco was employed as a live-in
maintenance worker at a Phoenix apartment complex. On March 9, he installed flooring in the apartment that victim Maria R. shared with her three-year-old son. Maria’s body was found the next morning face down in her
bathtub with her nightshirt bunched around her neck. She had been beaten, sexually assaulted, and stabbed until she bled to death. Maria’s young son was wandering unharmed in the apartment. Escalante-Orozco sold his car and immediately left for Mexico
without informing apartment management. Six years later, federal agents detained Escalante-Orozco in Idaho and notified Phoenix Police. After waiving his Miranda [3] rights, Escalante-Orozco told Phoenix Police officers that he drank two beers on the night of the murder and then “everything went blank” until he found himself lying on Maria in her hallway with his hand on her “private part.” He denied putting Maria’s body in the bathtub but said he had washed blood off his face and hands. Frightened, he returned to his apartment, showered, gathered important documents, threw his blood-covered clothes into an apartment complex dumpster, and took a bus to Mexico the next day. He denied assaulting or killing Maria and suggested he had been drugged and set up by relatives who were angry with him.
The State indicted Escalante-Orozco on one count of first degree murder, two counts of sexual assault, and one count of first degree burglary and sought the death penalty. After a prescreening evaluation revealed that Escalante-Orozco had an intelligence quotient (“IQ”) less than seventy-five, the trial court conducted a twenty-one-day Atkins [4] hearing to determine whether he suffers from an intellectual disability, making him ineligible for the death penalty. See A.R.S. § 13-753. The court ultimately found that Escalante-Orozco did not meet his burden of proving intellectual disability. At trial, the court dismissed one of the sexual assault charges,
and the jury found Escalante-Orozco guilty on all remaining counts. The jury found that Escalante-Orozco had murdered Maria in an especially cruel manner, see A.R.S. § 13-751(F)(6), and, after considering mitigation evidence, determined that he should be sentenced to death. The court imposed consecutive sentences of fifteen and twenty years’ imprisonment for the sexual assault and burglary counts, respectively.
DISCUSSION
I. Appeal and cross-appeal
A. Pretrial Issues
1.
Constitutionality of Arizona’s framework for
determining intellectual disability
A person with an intellectual disability cannot be sentenced
to death. A.R.S. § 13-753;
Atkins
,
to broadly review the framework for determining an intellectual disability. Arizona defines “intellectual disability” as meaning “a condition based on a mental deficit that involves significantly subaverage general intellectual functioning, existing concurrently with significant impairment in adaptive behavior, where the onset of the foregoing conditions occurred before the defendant reached the age of eighteen.” A.R.S. § 13-753(K)(3). When the state files a notice of intent to seek the death penalty, the court, absent a defendant’s objection, must appoint a prescreening psychological expert to determine the defendant’s IQ. Id. § 13-753(B). If the IQ is higher than seventy-five, the state can continue to seek the death penalty, and no further action is necessary. Id. § 13-753(C). If the defendant’s IQ is seventy-five or less, a more rigorous
inquiry is triggered. The court must appoint one or more experts to examine the defendant “using current community, nationally and culturally accepted physical, developmental, psychological and intelligence testing procedures.” Id. § 13-753(D)—(E). The defendant is then afforded a hearing, where he bears the burden of proving an intellectual disability by clear and convincing evidence. Id. § 13-753(G). If the court finds that the defendant has an intellectual disability, it must dismiss the notice of intent to seek the death penalty. Id. § 13-753(H). If the defendant fails to prove an intellectual disability, the notice remains in effect. Id. The defendant can still introduce evidence of an intellectual disability or diminished mental capacity at the penalty phase of the sentencing proceeding. Id.
(a) IQ score cutoff Section 13-753(F) provides that if all the defendant’s IQ test scores are above seventy, the court cannot dismiss the notice of intent to seek the death penalty on intellectual disability grounds. Escalante-Orozco argues that this provision violates the Eighth Amendment and article II, section 15 of the Arizona Constitution. Escalante-Orozco’s four IQ tests resulted in scores ranging
from fifty-eight to seventy-nine, considering adjustments for error. Because
some scores were below seventy, § 13-753(F) did not apply, and Escalante-
Orozco lacks standing to challenge the statute’s constitutionality.
Cf. State
v. Reeves
,
arguments to provide guidance in other cases. In Hall v. Florida , 134 S. Ct. 1986, 2001 (2014), the Supreme Court held that Florida’s definition of intellectual disability as requiring an IQ test score of seventy or less, without considering any margin of error, violated the Eighth Amendment. Section 13-753(K)(5) requires courts to consider the margin of error when determining a defendant’s IQ. But in State v. Roque , this Court stated, without citing any authority, that “the statute accounts for margin of error by requiring multiple tests,” and that “[i]f the defendant achieves a full- scale score of 70 or below on any one of the tests, then the court proceeds to a hearing.” 213 Ariz. 193, 228 ¶ 150, 141 P.3d 368, 403 (2006) (citation omitted). Escalante-Orozco argues that Roque ’s view that margin of error is accounted for by conducting multiple tests rather than considering the margin of error for each test makes subsection (F) unconstitutional under Hall because it results in a bright-line cutoff. Roque incorrectly described § 13-753(K)(5). First, the
provision’s plain language provides that courts must consider the margin of error for each IQ test, regardless of the number of tests. See A.R.S. § 13- 753(K)(5) (requiring the court to “take into account the margin of error for the test administered”). This is consistent with established medical practices. See Hall , 134 S. Ct. at 1995 (“The professionals who design, administer, and interpret IQ tests have agreed, for years now, that IQ test scores should be read not as a single fixed number but as a range. Each IQ test has a ‘standard error of measurement . . . .’” (citation omitted)). Second, if § 13-753(K)(5) is interpreted as Roque suggested, § 13-753(F) would violate the Eighth Amendment by setting a full-scale score of seventy as a cutoff without considering the margin of error for each individual test. Our interpretation avoids this unconstitutional result. The trial court here considered the margin of error for each IQ
score. Therefore, Roque ’s mistaken interpretation of § 13-753(K) did not adversely affect Escalante-Orozco. As occurred in this case, courts should consider the margin of error for each IQ score regardless of the number of tests administered.
(b) Definition of adaptive behavior
Section 13-753(K)(1) defines “adaptive behavior” as “the
effectiveness or degree to which the defendant meets the standards of
personal independence and social responsibility expected of the
defendant's age and cultural group.” This definition requires an “overall
assessment of the defendant’s ability to meet society’s expectations of him”
and differs from a clinical definition, which bases an impairment in
adaptive functioning on deficits in at least two life-skill categories without
considering strengths.
See State v. Grell
,
of “adaptive behavior” violates the Eighth Amendment and
Hall
by
deviating from the medical definition.
Hall
noted that “[t]he legal
determination of intellectual disability is distinct from a medical
diagnosis,” although the legal determination “is informed by the medical
community’s diagnostic framework.”
(c)
Standard of proof
In
Grell II
, this Court concluded that the predecessor to § 13-
753(G), which places the burden on a defendant in a pretrial inquiry to
prove intellectual disability by clear and convincing evidence, is
constitutional.
2. Failure to hold competency hearing The State asked for a Rule 11 competency evaluation. Three psychologists evaluated Escalante-Orozco, and one found him incompetent to stand trial. The parties stipulated to submit the competency issue to the court based on the expert reports. See Ariz. R. Crim. P. 11.5(a) (providing that when a hearing would otherwise be required to determine a defendant’s competency, the parties may “by written stipulation, submit the matter on the experts’ reports”). The trial court found that Escalante- Orozco was competent to stand trial. Escalante-Orozco argues that the court violated his rights to
due process and a fair trial by not holding a competency hearing because
one expert report raised more than a “doubt” about his competency.
See
State v. Cornell
, 179 Ariz. 314, 322–23, 878 P.2d 1352, 1360–61 (1994)
(requiring a hearing when there is a “good faith doubt about the
defendant’s ability . . . to participate intelligently in the proceedings”
(internal quotations omitted)). Escalante-Orozco’s stipulation precludes his
challenge.
See State v. Pandeli
, 215 Ariz. 514, 528 ¶ 50, 161 P.3d 557, 571
(2007) (discussing the invited error doctrine). Such stipulations are
“entirely in accord with due process.”
State v. Contreras
,
3. Motion to suppress statements to police Escalante-Orozco argues that statements he made to Phoenix
Police Detective Julio Caraballo in a videotaped interview in Idaho were
inadmissible because (a) the detective did not properly advise Escalante-
Orozco of his
Miranda
rights, and (b) officers violated Article 36 of the
Vienna Convention on Consular Relations (“VCCR”). We review a trial
court’s denial of a motion to suppress for an abuse of discretion,
considering only evidence admitted at the suppression hearing and
viewing it in the light most favorable to sustaining the ruling.
State v.
Wilson
,
(a)
Miranda
warnings
(1) Use of “licenciado”
Detective Caraballo read Escalante-Orozco his
Miranda
rights
from a Spanish-language form that accurately translated “attorney” as
“abogado.” When asked, Escalante-Orozco replied he understood his
rights. Detective Caraballo nevertheless questioned Escalante-Orozco
about the role of an attorney to ensure he understood it. In doing so, the
detective once translated “attorney” as “licenciado.” Escalante-Orozco
argues that he did not properly waive his
Miranda
rights because Detective
Caraballo’s use of “licenciado” was confusing and inadequately conveyed
the right to have an attorney present before and during questioning.
The trial court found that although “licenciado” primarily
means a university graduate and, secondarily, a lawyer, and Escalante-
Orozco “appeared confused” on the videotape by the words, the totality of
the circumstances demonstrated that the
Miranda
warnings were adequate.
See State v. Rivera
,
misleading nor inaccurate.
Cf. United States v. Botello-Rosales
,
(2) Description of attorney’s role Detective Caraballo described an attorney as someone who could represent Escalante-Orozco “in front of the court,” “in front of the jury,” and “in front of the case that is in front [sic].” Escalante-Orozco contends that this description was misleading, confusing, and nonsensical and incorrectly implied that he would only be provided an attorney at court. Escalante-Orozco also argues that the initial, accurate advisory did not cure the error because he had a fundamental misunderstanding of the role of an attorney that was only made worse by Detective Caraballo’s use of “licenciado.” The trial court did not err in its ruling. The detective
accurately informed Escalante-Orozco that he had “the right to have an
attorney present before and during the questions if [he] desire[d],” and told
him that an attorney would be appointed for him if he could not afford one.
Escalante-Orozco stated that he understood these rights. The detective’s
subsequent description of an attorney was not inconsistent with the
advisory given and, in context, was reasonably viewed as a general
description of an attorney’s role rather than a repudiation of the just-
explained right to have that person present before and during questioning.
Cf. Duckworth v. Egan
,
( 3) Waiver Escalante-Orozco argues that the State failed to prove that he knowingly and intelligently waived his Miranda rights because he suffered from an intellectual disability, was poorly acculturated, and had limited knowledge of the American legal system. Escalante-Orozco’s waiver was knowing and intelligent if he
understood his rights and intended to waive them.
See State v. Naranjo
, 234
Ariz. 233, 238 ¶ 7,
ruling that Escalante-Orozco knowingly and intelligently waived his
Miranda
rights. He was interviewed in Spanish, he was twice read his rights
in Spanish, he indicated he understood his rights, and he freely answered
all questions. From the videotape, he appears to respond appropriately to
questions. Detective Caraballo testified that he “had no doubt that
[Escalante-Orozco] . . . understood his rights.” Although medical expert Dr.
Francisco Gomez opined that Escalante-Orozco did not understand his
Miranda
rights, the trial court was free to disregard this opinion.
Cf. State v.
Hyde
,
(b) The VCCR Escalante-Orozco argues that officers violated Article 36 of the VCCR and, as part of the totality of the circumstances, this violation prevented him from making a knowing and intelligent waiver of his Miranda rights. Article 36 requires authorities to advise a foreign national detainee “without delay” of the detainee’s right to request that the consulate be advised of the detention. See Sanchez-Llamas v. Oregon , 548 U.S. 331, 338–39 (2006). Authorities informed Escalante-Orozco of this right on May 3, 2007, the day after federal agents detained him and Detective Caraballo interrogated him. The record does not reflect whether Escalante- Orozco asked authorities to notify the Mexican consulate of his detention, but they did so a week after the arrest. We need not decide whether authorities violated the VCCR.
The remedy for a violation of Article 36 of the VCCR is not suppression of
a foreign national’s otherwise admissible statements.
Sanchez-Llamas
, 548
U.S. at 349–50. And even if we assume that Escalante-Orozco would have
exercised his consular rights if he had been informed of them before his
interrogation, Detective Caraballo was entitled to proceed with the
interrogation when he did.
See id.
at 349 (stating that Article 36 “has nothing
whatsoever to do with . . . interrogations” and “secures only a right of
foreign nationals to have their consulate
informed
of their arrest or
detention—not to have their consulate intervene, or to have law
enforcement authorities cease their investigation pending any such notice
or intervention”);
see also
Consular Notification and Access 21 (4th ed. 2014).
Escalante-Orozco nevertheless argues that a VCCR violation
is relevant in determining whether a
Miranda
waiver was knowing and
intelligent, and the trial court erred by failing to consider that violation as
part of the totality of the circumstances. He relies on
Sanchez-Llamas’
statement that “[a] defendant can raise an Article 36 claim as part of a
broader challenge to the voluntariness of his statements to police.” 548 U.S.
at 350. But
Miranda
violations and voluntariness are separate inquiries.
Compare State v. Tapia
,
B. Jury selection issues
1.
Time limits
Escalante-Orozco argues that the trial court erred by
imposing a five-minute time limit for counsel’s questions to individual
prospective jurors, which impaired his right to a fair and impartial jury
under the state and federal constitutions. To prevail on his argument,
Escalante-Orozco must “demonstrate not only that the voir dire
examination was inadequate, but also that, as a result of the inadequate
questioning, the jury selected was not fair, unbiased, and impartial.”
See
Moody
,
authorized to “control the voir dire” but must permit a party, upon request,
to examine jurors for “a reasonable time.” Ariz. R. Crim. P. 18.5(d). Even
if the time afforded was insufficient, Escalante-Orozco fails to demonstrate
that the jury seated was not fair, unbiased, and impartial.
See Moody
, 208
Ariz. at 451 ¶ 95,
2.
Batson
challenges
Escalante-Orozco challenges the State’s preemptory strikes of
Jurors 17, 36, 61, 71, and 88, all of whom are racial minorities.
See Batson v.
Kentucky
,
prosecutor offered a race-neutral rationale by explaining that he struck the
contested jurors because their questionnaire answers indicated either
opposition to the death penalty or potential reluctance in imposing the
death penalty if warranted. He also cited Juror 36’s answer that graphic
and disturbing photographs would make it difficult for him to be fair and
impartial. He further expressed concern that Juror 71’s job as a high school
teacher could influence her. (The prosecutor also stated that Juror 71 was
inattentive, but the court did not share this observation so made “no finding
of that.”) The questionnaire answers bear out the prosecutor’s factual
assertions, and we defer to the trial court’s assessment of the prosecutor’s
credibility in explaining his strikes.
Cf. State v. Hardy
, 230 Ariz. 281,
285 ¶ 12,
a cross-comparison analysis of the struck and non-struck jurors.”
See Miller-
El v. Dretke
,
3. Hardship recusals
Escalante-Orozco contends that the trial court’s act in
granting five potential jurors’ requests for recusal due to their limited
English language skills resulted in a systemic exclusion of non-English
speakers from jury service in violation of the federal and state constitutions.
We disagree. Section21-202(B)(3) requires the trial court to grant a person’s
recusal request if ”[t]he prospective juror is not currently capable of
understanding the English language.”
See also State v. Morris
,
4. Juror 92 Escalante-Orozco contends that the trial court violated his right to a fair and impartial jury under the federal and state constitutions by failing to sua sponte excuse Juror 92, an office assistant employed by the Maricopa County Medical Examiner’s Office. He argues that Juror 92 likely knew both Dr. Marco Ross, a witness who was formerly employed by the Medical Examiner’s Office, and the author (who was not identified) of a report on which Dr. Ross relied that originated from that office. Because Escalante-Orozco did not object to seating Juror 92,
we review for fundamental error.
State v. Henderson
,
sua sponte disqualify Juror 92.
C. Guilt Phase Issues
1. DNA Evidence
(a) Motion to suppress
Escalante-Orozco argues that the trial court erred by denying
his motion to preclude DNA evidence. We review the court’s ruling for an
abuse of discretion, considering only evidence admitted at the suppression
hearing and viewing it in the light most favorable to sustaining the ruling.
Wilson
,
(1) Sperm fraction from Maria’s nightshirt Phoenix Police Department Crime Lab analyst Kathleen Stoller obtained a mixed Y-STR profile from sperm on Maria’s nightshirt, with the major part matching an unknown male and the minor part “matching” Escalante-Orozco’s DNA profile at five loci (specific locations of genes on chromosomes). (A Y-STR profile is one that excludes a female DNA profile.) She testified at the suppression hearing that the same Y-STR profile would be expected in all Escalante-Orozco’s paternal relatives and in one in thirty-four southwestern Hispanics. Escalante-Orozco argues that Stoller’s opinions were
unreliable and therefore inadmissible because she relied on a “match” at one locus that fell below the threshold for identifying an allele set by the police department’s protocol guidelines. See Ariz. R. Evid. 702 (providing that admissible expert opinion must be “the product of reliable principles and methods”). He points out that Stoller obtained below-threshold results for other alleles that she did not use for statistical purposes, casting further doubt on her reliance on one below-threshold allele. The State demonstrated that Stoller’s DNA interpretation
technique was sufficiently reliable. She testified that the guidelines
permitted her to use the below-threshold allele for statistical purposes
because its measurement was greater than three times the “baseline noise”
in the graph generated by the device used to analyze genetic material. Her
testimony was corroborated by the Department’s protocol guidelines. And
the widely accepted Scientific Working Group on DNA Analysis Methods
(“SWGDAM”) Guidelines acknowledge that the threshold is malleable.
Escalante-Orozco further contends that Evidence Rule 403
required suppression because the Y-STR profile would be expected in one
in thirty-four southwestern Hispanics, meaning its probative value was
substantially outweighed by the danger of unfair prejudice or misleading
the jury. Unfair prejudice is an “undue tendency to suggest decision on an
improper basis, such as emotion, sympathy or horror.”
State v. Mott
, 187
Ariz. 536, 545,
(2) “Included,” “not excluded,” and “match” Escalante-Orozco argues that the trial court erred by denying
his pretrial motion to preclude Stoller from using the words “included” and “not excluded” interchangeably in relation to DNA evidence because it would mislead and confuse the jury. We disagree. Stoller testified at a pretrial hearing that “included” and “not excluded” mean the same thing. The court did not abuse its discretion by crediting this testimony. This case is unlike Duncan v. Kentucky , 322 S.W.3d 81 (Ky. 2010), relied on by Escalante-Orozco, in which the Kentucky Supreme Court reversed convictions in part because the prosecutor mischaracterized an expert’s testimony that the defendant could not be excluded as a source of DNA found in the victim’s panties as meaning that the defendant was the source of that DNA. Id. at 91–92. That did not occur here. We also reject Escalante-Orozco’s argument that the court
erred by permitting Stoller to use the word “match” to describe DNA profiles consistent with his because it was likely to mislead jurors to believe he was the source of the profile rather than a possible source. Stoller explained at trial that her use of the word “match” did not mean that the DNA could only have belonged to Escalante-Orozco.
(b) Trial
We review the trial court’s evidentiary rulings for an abuse of
discretion.
See State v. Blakley
,
(1) Demonstrative chart Stoller testified that swabs of Maria’s vagina contained a non- sperm fraction with a mixed Y-STR profile, the major part of which matched Escalante-Orozco’s profile at ten of seventeen loci. In response to defense criticism that Stoller based her opinion on only one locus, the trial court permitted the State to display a demonstrative chart depicting Stoller’s interpretive findings while she explained her opinion.
¶53 Escalante-Orozco argues that the trial court erred by permitting the State to use the chart because it depicted six alleles with below-threshold values and was therefore unreliable under Rule 702 and violated Rule 403. We disagree. The State did not use the chart to argue that the below-threshold alleles provided reliable data points or evidenced a “match” between those locations and Escalante-Orozco’s profile. Indeed, Stoller relied on the ten above-threshold loci and explicitly stated that the below-threshold alleles were not reliable and “too weak to be sure that they are even real.” Any possible undue prejudice that may have resulted was resolved by Stoller’s explanation.
(2) Exhibit 220 Stoller performed a Y-STR analysis on Maria’s right fingernail clippings. Without objection, the trial court admitted as Exhibit 220 a chart prepared by Stoller comparing Escalante-Orozco’s Y chromosomes with the unknown male’s Y chromosomes taken from the vaginal swab and the right fingernail clippings. Escalante-Orozco argues for the first time that the court violated Rules 403 and 702 by admitting Exhibit 220 because it permitted the jury to mistakenly conclude that Escalante-Orozco’s Y chromosomes matched the clippings at sixteen loci rather than at fifteen loci. We review for fundamental error. The court did not err. Exhibit 220 shows allelic values at
fifteen loci with an additional loci yielding no results. And immediately before presenting the chart, Stoller testified that she “was able to obtain results at 15 out of the 17 locations.” Exhibit 220 did not permit the jury to falsely conclude that clippings yielded a match at sixteen loci.
(3) Admission of Y-STR DNA evidence Escalante-Orozco argues for the first time that the trial court violated Rules 403 and 702 by admitting Y-STR DNA evidence. We review for fundamental error. Escalante-Orozco contends that the Y-STR evidence has such
low probative value that it did not satisfy Rule 702’s “helpfulness”
requirement. Rule 702’s requirement that evidence be “helpful” to the trier
of fact “goes primarily to relevance.”
Daubert v. Merrell Dow Pharms., Inc.
,
related to a disputed issue—whether Escalante-Orozco was the perpetrator—because the fact he could not be excluded tended to make it more likely that he sexually assaulted and killed Maria than if the Y-STR results had excluded him. Although the Y-STR results could be attributed to a statistically significant percentage of the general population, this circumstance does not diminish or eliminate the fact that Escalante-Orozco was among that group. Therefore, the Y-STR DNA evidence was probative of the issue of guilt and met Rule 702’s requirement that evidence be “helpful” to the trier of fact. Escalante-Orozco also argues that because the Y-STR
evidence has only “marginal statistical significance,” it should have been excluded under Rule 403 because it was confusing to the jury. We disagree. As explained, the Y-STR evidence was probative of whether Escalante- Orozco sexually assaulted and killed Maria. When presenting the Y-STR results to the jury, Stoller extensively explained the statistics regarding the number of people who would also match the profile, and she explained that the results meant only that Escalante-Orozco could not be excluded. The jury could understand the limited probative value of the DNA evidence without danger of confusion.
(4) Major contributor Swabs taken of Maria’s vagina and external genitals yielded non-sperm fractions with mixed Y-STR profiles. Stoller testified that the “major part” of the profiles matched Escalante-Orozco’s. He contends that this conclusion was not scientifically valid as required by Rule 702 and Daubert because it was based on the relative strengths of alleles at a single locus. We review for fundamental error. The trial court did not err. The SWGDAM Guidelines state
that “all loci should be evaluated” when interpreting mixtures with major/minor male contributors, and that “[a] sample may be considered to consist of a mixture of major and minor male contributors if a distinct contrast in signal intensity exists among the alleles.” Stoller complied with these guidelines. She evaluated all loci and concluded that Escalante- Orozco was the major contributor because the allele consistent with his profile was four times larger than one at the same locus belonging to an unknown male. Although the defense expert witness criticized identifying the major contributor based on information at only one locus, the jury could decide whose opinion to credit.
2.
Third-party culpability evidence
Escalante-Orozco argues that the trial court incorrectly
precluded evidence that Armando Gabriel Lopez-Garduno, Maria’s
boyfriend, assaulted and killed Maria. Escalante-Orozco also contends that
the court erroneously instructed the jury about third-party culpability. He
asserts that the errors violated his right to present a complete defense and
his rights to a fair trial under the state and federal constitutions.
See
Chambers v. Mississippi
,
(a) Rocio Ugalde’s testimony Escalante-Orozco sought to elicit testimony from Rocio
Ugalde that Maria had told her that Lopez-Garduno bruised Maria’s arm and that he was violent with his wife. The trial court precluded the testimony as inadmissible hearsay and pursuant to Rule 403. Rule 807(a)(1), the residual exception to the hearsay rule,
permits admission of hearsay statements that have “equivalent circumstantial guarantees of trustworthiness” to firmly rooted exceptions. Escalante-Orozco argues that Ugalde’s anticipated testimony was corroborated by other evidence and was “at least as reliable” as a statement against interest (Rule 804(b)(3)) or a statement by an opposing party (Rule 801(d)(2)). We disagree. Neither statement by Maria was against her own interest. And we cannot say that the statements were against Lopez- Garduno’s interest. Contrary to Escalante-Orozco’s unsupported assertion, nothing in the record suggests that Maria learned from Lopez-Garduno that he was violent with his wife. We reject Escalante-Orozco’s argument that the statement
about the bruise was trustworthy because it is similar to a statement of then-
existing mental, emotional, or physical condition (Rule 803(3)) or a
statement for medical diagnosis or treatment (Rule 803(4)). Without
knowing the circumstances under which Maria made this statement, we
cannot discern how it bears similar indicia of reliability.
Escalante-Orozco also contends that Ugalde’s testimony was
not hearsay to the extent it was used to show the inadequacy of the police
investigation.
See State v. Dunlap
,
contested testimony as hearsay. In light of this conclusion, we need not address whether the court properly precluded the evidence under Rule 403.
(b) Blanca Cisneros’ testimony Escalante-Orozco sought to elicit testimony from Blanca
Cisneros that her husband, Lopez-Garduno, was a mean drunk, resisted efforts to get help for alcoholism, lied about attending Alcoholics Anonymous, hit her on two occasions, and that their relationship deteriorated because of his drinking. The trial court precluded all Cisneros’s testimony under Rule 403. The court did not abuse its discretion. The admissibility of
third-party culpability evidence is governed by Rules 401 to 403.
State v.
Machado
, 226 Ariz. 281, 284 ¶ 16, 246 P.3d 632, 635 (2011). The evidence
must have an effect on the defendant’s culpability and need only “
tend
[] to
create a reasonable doubt as to the defendant’s guilt.”
Id.
at 285 ¶ 24, 246
P.3d at 636 (citation omitted). The trial court did not err in ruling that
Cisneros’s anticipated testimony had scant probative weight and was
substantially outweighed by the danger of confusing or misleading the jury.
See
Ariz. R. Evid. 403. The evidence had nothing to do with Lopez-
Garduno’s relationship with Maria and did not tend to create a reasonable
doubt about Escalante Orozco’s guilt. The jury would have had to speculate
to find otherwise.
Cf. State v. Dann
,
(c) Lopez-Garduno’s statements Lopez-Garduno could not be located at the time of trial. The
trial court permitted Escalante-Orozco to introduce his statements to police by eliciting testimony from Detective Jose Cisneros. The court reasoned that the statements were not hearsay because they were offered to show that Lopez-Garduno gave inconsistent statements to police, which was relevant to the adequacy of the investigation. At the State’s request, the court also admitted a transcript of the detective’s complete interview with Lopez-Garduno. The court instructed the jury that Lopez-Garduno’s statements related to the scope of the police investigation and could not be used to prove the truth of the statements. Escalante-Orozco contends that Lopez-Garduno’s statements
that he and Maria had fought several days before her death and that he had been “bad” to his wife were admissible without limitation as the statements were either not hearsay or admissible as a hearsay exception. We disagree. Rule 801(d)(2)(A), which provides that an opposing party’s statements are not hearsay, did not apply because Lopez-Garduno was not a party. Rule 804(b)(3), which offers a hearsay exception if the statement has a tendency to expose the declarant to criminal liability, did not apply because the statements were vague and did not implicate criminal behavior. Rule 807, the residual exception, did not apply because Lopez-Garduno’s statements did not have “equivalent circumstantial guarantees of trustworthiness” as established hearsay exceptions. The trial court sustained the State’s objection to permitting
Detective Cisneros to read the portion of Lopez-Garduno’s interview transcript in which he admitted he was “bad” to his wife. Escalante-Orozco incorrectly contends that the court excluded the evidence under Rule 404. Although the court characterized Lopez-Garduno’s statement as describing “[h]is prior bad 404 acts,” the court’s ruling rested on relevancy. The court did not abuse its discretion. Lopez-Garduno’s statement that he was “bad” to his wife was vague and did not tend to suggest that the police investigation was inadequate. Cf. Ariz. R. Evid. 401 (“Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence.”).
(d) The March 9, 2001 police report On March 9, 2001, the night before Maria’s murder, a Hispanic man purportedly peeked through the blinds at another apartment in Maria’s complex and threatened to kill a woman inside. The trial court precluded admission of the police report documenting the event under Rules 402 and 403 and Arizona Rule of Criminal Procedure 15.2. Escalante-Orozco contends that the report tended to create a reasonable doubt about his guilt and was therefore relevant and admissible because (1) the apartment was located on the ground floor of a building directly behind Maria’s building; (2) Maria’s front-window screen had been removed and the window was open when her body was found; and (3) Lopez-Garduno was Hispanic. The trial court did not err. Escalante-Orozco never disclosed
a defense that someone other than Lopez-Garduno was the perpetrator. See Ariz. R. Crim. P. 15.2(b) (requiring pretrial disclosure of defenses). His defense was that Lopez-Garduno committed the crimes in the course of his relationship with Maria, not that he randomly committed such acts against women. Nothing tied Lopez-Garduno to the crime committed against the other woman.
3. Character and other-act evidence (a) Robert Anderson’s testimony Escalante-Orozco installed flooring in Maria’s apartment the day before the murder. Robert Anderson, Escalante-Orozco’s supervisor, testified he observed Escalante-Orozco speaking to Maria in Spanish inside her apartment while making “pleading” motions with his hands. Maria gave Anderson a “funny look” that he interpreted as her requesting that he get Escalante-Orozco to leave, and he did so. Although Anderson did not understand Spanish, he believed Escalante-Orozco was not speaking in a “normal tone.” When Escalante-Orozco went to pick up his paycheck later that day, he seemed “agitated,” “wasn’t himself,” and “kept looking up” at Maria’s apartment. The trial court admitted this evidence as permissible other-act evidence. Evidence of a defendant’s “other crimes, wrongs, or acts”
generally cannot be introduced to prove that the defendant acted the same
way on another occasion, but it can be used for other purposes, such as
proof of motive or identity. Ariz. R. Evid. 404(b). Before admitting such
evidence, the court must find (1) clear and convincing proof that the
defendant committed the act; (2) it is offered for a proper purpose under
Rule 404(b); (3) it is relevant to prove that purpose; and (4) its probative
value is not substantially outweighed by the danger of unfair prejudice.
State v. Anthony
,
demonstrated that he committed the other acts by clear and convincing evidence. Anderson testified during the Atkins hearing about his observations, and the trial court was able to assess his credibility. Whether Anderson understood Spanish and accurately surmised the tone of Escalante-Orozco’s words and Maria’s reaction to them had no bearing on whether Escalante-Orozco committed the other acts. The trial court did not abuse its discretion by admitting
Anderson’s testimony as proof of motive. This Court has “long held that
where the existence of premeditation is in issue, evidence of previous
quarrels or difficulties between the accused and the victim is admissible.”
State v. Jeffers
,
of the other-act evidence was not substantially outweighed by the danger
of unfair prejudice. The evidence was not unfairly prejudicial. It did not
suggest a decision based on an improper basis “such as emotion, sympathy
or horror.”
See Mott
,
as proof of motive. We need not address the trial court’s alternate bases for admitting the evidence.
(b) Cecilia Banda’s testimony On cross-examination by defense counsel, Cecilia Banda,
Escalante-Orozco’s wife at the time of the murder, testified that Maria came
by the couple’s apartment once when both were home. When asked if she
noticed that Escalante-Orozco looked at Maria, Banda answered, “[h]e
looked at a lot of them.” When asked to clarify this answer on redirect,
Banda replied, “[h]e’s one of those kind of people that was like a flirt, I don’t
know how to explain it.” Escalante-Orozco argues for the first time that
Banda’s testimony was inadmissible character evidence.
See
Ariz. R. Evid.
404(a). We review for fundamental error.
Henderson
,
evidence, Escalante-Orozco has not shown fundamental, prejudicial error. His defense theory was Lopez-Garduno committed the crimes. Escalante- Orozco theorized at trial that Maria “was interested in him” and he went to her apartment before the murder seeking companionship. Lopez-Garduno caught them together and raped and killed Maria and knocked out Escalante-Orozco in a jealous rage. To support this theory, defense counsel used Banda’s testimony to argue that Escalante-Orzoco was a “flirt” and “seemed to be interested in Maria.” In light of Escalante-Orozco’s use of the challenged testimony, we cannot fathom how its admission took away a right essential to his defense or deprived him of a fair trial. See id.
4.
Photographs
The trial court, without objection, admitted into evidence
nineteen autopsy photographs and six crime scene photographs depicting
Maria’s body. Escalante-Orozco now argues that the photographs were
needlessly cumulative and introduced solely to inflame the jury in violation
of Rule 403 and violated the constitutional guarantees of due process and a
fair trial.
See State v. Anderson
,
error. The autopsy photographs were not cumulative because the medical
examiner used each one to explain a different aspect of his testimony. The
photographs established the number and severity of Maria’s injuries, the
defensive nature of some wounds, and that she suffered vaginal injuries.
Cf. Anderson
, 210 Ariz. at 340 ¶ 40, 111 P.3d at 382 (“We begin from the
premise that any photograph of the deceased in any murder case is relevant
because the fact and cause of death are always relevant in a murder
prosecution.” (internal quotations, edits, and citation omitted));
State v.
Chapple
,
describe the scene, including Maria’s body when found, and to demonstrate she was dragged into the bathtub. The photographs depicted different perspectives of the scene and were not needlessly cumulative. See Ariz. R. Evid. 403. None of the photographs were unduly gruesome. Cf. State v.
Anderson
, 210 Ariz. 327, 340 ¶¶ 41, 43, 111 P.3d 369, 382 (2005) (finding
photographs depicting human decomposition, bloating, and skin slippage
and discoloration admissible). As we have previously noted, “[t]here is
nothing sanitary about murder, and there is nothing in Rule 403 . . . that
requires a trial judge to make it so.”
State v. Rienhardt
,
5.
References to Maria’s son
The trial court admitted into evidence a partially redacted
transcript of Detective Caraballo’s interview with Escalante-Orozco, which
was also read to the jury. Escalante-Orozco argues for the first time that the
detective’s repeated questions about the impact of Maria’s murder on her
young son were irrelevant and unduly prejudicial and should have been
excluded as improper victim-impact evidence. He contends the court
deprived him of a fair trial by not doing so. We review for fundamental
error.
Henderson
,
detective’s questions. Detective Caraballo’s questions provided context for
Escalante-Orozco’s repeated assertions that he did not kill Maria.
Cf. State
v. Boggs
,
6.
Prosecutorial misconduct in closing argument
Escalante-Orozco argues for the first time that the prosecutors
engaged in several acts of misconduct during closing arguments that
individually and cumulatively deprived him of due process and a fair trial
under the state and federal constitutions. We review for fundamental error.
Henderson
,
misconduct when “(1) the prosecutor committed misconduct and (2) a
reasonable likelihood exists that the prosecutor's misconduct could have
affected the verdict.”
State v. Benson
,
(a) DNA The prosecutors argued in closing that Escalante-Orozco’s DNA was found “inside of Maria’s vagina,” “on the back of Maria’s nightshirt,” and “in her and on her.” Escalante-Orozco asserts that these statements mischaracterized the evidence and constituted prosecutorial misconduct. The prosecutors inaccurately stated that Escalante-Orozco’s
DNA was discovered in and on Maria rather than accurately stating that samples taken from Maria’s body yielded Y-STR profiles that did not exclude him. Even if the prosecutors’ inaccurate remarks constituted “misconduct,” Escalante-Orozco has failed to show a reasonable likelihood that the comments affected the verdict. Stoller explained several times that the Y-STR results did not establish that the DNA belonged to Escalante- Orozco but only revealed that he could not be excluded as having provided it. She also explained the statistics for each Y-STR result to demonstrate that Y-STR DNA evidence is not as discriminating as other types of DNA evidence and to inform the jury that numerous men could have provided the DNA. The court also read a stipulation to the jury immediately before closing arguments that Escalante-Orozco’s Y-STR profile matched five profiles in a local DNA database of approximately 3800 Y-STR profiles. Elsewhere in closing, the prosecutors correctly described the Y-STR results as not excluding Escalante-Orozco or his paternally related male relatives. Defense counsel repeatedly emphasized that the Y-STR DNA was not discriminating. In sum, the jury was well aware that the Y-STR profile evidence did not conclusively establish Escalante-Orozco as the source of DNA found in and on Maria. A new trial is not warranted.
(b) Maria’s son Escalante-Orozco argues that the prosecutor “improperly injected facts outside the record,” “inflame[d] the jury,” and introduced irrelevant victim-impact evidence by asserting in closing argument that Maria’s son witnessed the crimes. Prosecutors are given “[w]ide latitude” in closing argument
and “may comment on evidence and argue all reasonable inferences
therefrom.”
State v. Dumaine
,
had blood all over his face, in his hair, in his hands. Everywhere. And
that’s the face he looked at that little boy with.” Prosecutors “should not
call the jurors’ attention to matters the jury should not consider.”
State v.
Ovante
,
(c) Misstatement of evidence The prosecutor inaccurately argued that Escalante-Orozco
“[made] it clear that he did not go into [Maria’s] apartment during the day [of the murder], even though Mr. Anderson said he was there.” In fact, Escalante-Orozco admitted to Detective Caraballo that he worked in Maria’s apartment that day. It is improper for a prosecutor to misstate evidence, and, “if
done intentionally, would be a serious breach of the prosecutor’s duty.”
State v. Cannon
,
(d)
Impugning defense counsel’s integrity
Escalante-Orozco argues that the prosecutor impugned the
defense in rebuttal closing argument by arguing that defense counsel
“pound[ed] the table” and tried to “distract [the jury] from the real issue . . .
of the defendant’s guilt in this case.” It is improper to “impugn the integrity
or honesty of opposing counsel.”
Newell
,
(e) Appealing to jurors’ emotions While an autopsy photograph of Maria was displayed to the jury, the prosecutor ended her rebuttal closing argument as follows: .
She was an actual human being. And you are the only ones who can give her any sense of justice at this point. It has been 12 years. It has been 12 years. She’s been waiting and she’s in the courtroom. And he took her voice and he stole it forever. So you get to be her voice. You get to find him guilty. So go back there and do that.
Escalante-Orozco argues that these remarks improperly appealed to the jurors’ sympathies and passions. Although a prosecutor has wide latitude in making closing
arguments and “may comment on the vicious and inhuman nature of the
defendant’s acts,” counsel cannot appeal to the passions and fears of the
jury.
State v. Comer
,
sua sponte strike the prosecutor’s comments and provide a corrective jury
instruction.
See Bible
, 174 Ariz. at 603, 858 P.2d at 1206 (describing the
remedy for improper closing remarks). The comments were fleeting, and
the court instructed jurors “not [to] be influenced by sympathy.” The error
was not of such magnitude to deprive Escalante-Orozco of a fair trial.
See
Henderson
,
(f) Cumulative effect
The cumulative effect of the improper closing argument
statements does not show that the prosecutors intentionally acted with
indifference, or specific intent, to prejudice Escalante-Orozco.
See Bocharski
,
7. Denial of Rule 20 motion
The trial court partially granted Escalante-Orozco’s motion
for judgment of acquittal pursuant to Rule 20, Arizona Rules of Criminal
Procedure, by acquitting him on one count of sexual assault. Escalante-
Orozco argues that the court erred by refusing to acquit him of first degree
murder, burglary, and the second sexual assault charge. We review the
court’s ruling de novo.
Boyston,
supports the sexual assault conviction, and that because the State’s entire theory for Maria’s murder was predicated on sexual assault, the court erred by not acquitting him of all charges. A person commits sexual assault by “intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person without consent of such person.” A.R.S. § 13- 1406(A). As charged here, Escalante-Orozco engaged in “sexual intercourse” if he penetrated Maria’s vulva with any part of his body or with any object. See id. § 13-1401(A)(4). He did so “without consent” if Maria was “coerced by the immediate use or threatened use of force” against her or her property. Id . § 13-1401(A)(7)(a). Substantial evidence supports the sexual assault conviction.
Escalante-Orozco admitted to Detective Caraballo that he woke up on top of Maria with his hand on her genitals. Evidence showed that Maria had lacerations around and inside her vagina, including three lacerations on the inner parts of her minor labia, a laceration on the posterior fornix, where the labia come together in the back part of the vaginal wall, and two one- and-a-half inch lacerations on the walls of her vagina. The State’s expert testified that the injuries were “blunt force injuries” that could have been caused by anything “from a fingernail to a larger foreign object.” The expert also concluded, based on the hemorrhaging around the vaginal lacerations, that they were likely caused within twenty-four hours of Maria’s death. The DNA evidence established that Escalante-Orozco could not be excluded as the contributor of the DNA tested from the vaginal swab. The trial court did not err by refusing to grant the rest of the Rule 20 motion.
D. Aggravation Phase Issues 1. (F)(6) jury instruction Escalante-Orozco argues that the trial court’s jury instruction
on the “especially cruel” aggravator, A.R.S. § 13-752(F)(6), was
unconstitutionally vague because it “inaccurately and unconstitutionally
suggested the jury was only required to find the murder cruel, and not that
the murder was ‘
especially
so.’” We review de novo whether the instruction
correctly stated the law.
Benson
,
2.
Prosecutorial misconduct in closing argument
Escalante-Orozco argues for the first time that the prosecutors
engaged in several acts of misconduct during closing arguments that
individually and cumulatively deprived him of due process and a fair trial
under the state and federal constitutions. We review for fundamental error.
Henderson
,
(a) Sexual assault as proof of mental anguish or physical pain Escalante-Orozco argues that the prosecutor misstated the
law by arguing that “evidence of rape is proof of mental pain and suffering”
under the (F)(6) aggravator. Escalante-Orozco correctly notes that we have
been unwilling to say that all murders involving a sexual assault
automatically qualify as especially cruel under (F)(6).
See State v. Schackart
,
assault to satisfy the (F)(6) aggravating factor violated double jeopardy by
impermissibly “double counting” the sexual assault as the predicate for
felony murder and to establish the (F)(6) aggravator. We have previously
held that an element of a crime may be used for purposes of sentencing
enhancement and establishing aggravation.
State v. Cruz
,
(b) Presence of Maria’s son during the murder The prosecutor asked jurors to “[i]magine the fear that Maria was experiencing as she tried to fight off the defendant, knowing that her son was present in the apartment, could have been the next victim.” He concluded that Maria not only feared for herself but for her son’s safety. Escalante-Orozco argues that this argument was improper because (1) no evidence suggested that the son was present during the murder, and (2) Maria’s worry for her son’s safety could not constitute mental anguish under (F)(6). We reject Escalante-Orozco’s first argument because the
prosecutor did not say the son saw the murder; he said the son was in the
apartment, which was supported by the evidence. We likewise reject the
second argument. Escalante-Orozco does not cite any authority suggesting
that fear for a young son’s safety cannot add to the mental anguish
experienced by a murder victim. Quite to the contrary, common sense tells
us it does.
Cf. State v. Carter
,
(c) Length of time Maria was conscious Escalante-Orozco argues that the prosecutor improperly speculated by arguing that the killing was “unusually great or significant” based on “the length of time that Maria [] suffered.” This was fair argument. Dr. Ross testified that a stab wound to Maria’s neck was the primary cause of death. He opined that it would have taken “maybe 10, 15, 20 minutes” before Maria was unable to purposefully move to resist continuing attacks and “anywhere from several minutes to probably upwards of an hour” for her to die. This testimony, together with evidence of the sexual assault, and Maria’s other wounds, including defensive wounds, supported a reasonable inference that Maria was conscious and suffered for a significant length of time.
E. Penalty Phase Issues
1. “Future dangerousness” The trial court instructed the jury that if it decided to impose a life sentence, “the Court will decide whether it would be imprisonment for life without the possibility of release from prison, or imprisonment for life with the possibility of release after 25 years.” Escalante-Orozco objected, arguing that the jurors should not consider his potential for release when deciding whether to impose the death penalty. He also asked the court to tell jurors that a person convicted of first degree murder could be released only through clemency proceedings as Arizona law does not provide for parole. The trial court denied the objection and refused the requested instruction because it speculated about the future availability of parole. Escalante-Orozco argues that the court’s refusal to give his
requested instruction violated
Simmons v. South Carolina
,
Simmons
issue because he never explicitly argued that the State placed
future dangerousness at issue. We disagree. By objecting to the instruction
and explaining that the jury should not consider the possibility of his
release in deciding whether to impose the death penalty, Escalante-Orozco
sufficiently preserved the issue.
Cf. State v. Fulminante
,
because the prosecutor did not put future dangerousness at issue. The
prosecutor did not have to explicitly argue future dangerousness for it to
be at issue; instead, it is sufficient if future dangerousness is “a logical
inference from the evidence” or is “injected into the case through the State’s
closing argument.”
Kelly v. South Carolina
,
evidence that Escalante-Orozco choked his ex-wife, Cecilia, by pinning her neck down with his knee; yelled at Cecilia and shook her by the arms ; threw Cecilia down on the bed, held a knife to her throat, and threatened her life; and bit off part of someone’s finger in a fight and showed the piece to Cecilia after returning home. The prosecutor also introduced evidence that Escalante-Orozco once fought with Cecilia, tore off her clothes, threatened her with a knife, and dragged her outside by her hair while she was naked. With regard to Maria’s murder, the prosecutor brought out the graphic photographs of the crime scene and autopsy photos and went over the brutality of the murder. In closing, the State argued:
Sometimes in life there are people who have done so much evil they give up their right to live. This defendant has done just that. You have the attack on [Maria]. And there’s some other evidence you can consider that has been presented to rebut any mitigation that you may find in this case. And those are the incidents that were described to you by Cecilia Banda. The defendant, according to Cecilia Banda, she told you, he attacked her on two different occasions armed with a knife. On at least one of those occasions, her hair was pulled.
One incident occurred in Mexico, one incident occurred in the United States. You also heard of another incident that was witnessed by her sister, Patricia, where the defendant was choking her. You also heard about another incident in Mexico where the defendant came home after having gotten into a fight with someone, he came home with a person’s finger. This defendant has done so much evil that he has given up his right to live. He has forfeited his right to live based on the crime that he committed March 10 th of 2001.
The other-act evidence and the prosecutor’s arguments, like those at issue in Kelly , put Escalante-Orozco’s future dangerousness at issue. The State argues it did not place future dangerousness at issue
because the evidence of other acts of violence was offered to rebut mitigation evidence. The Kelly Court rejected a similar argument: “Evidence of future dangerousness under Simmons is evidence with a tendency to prove dangerousness in the future; its relevance to that point does not disappear merely because it might support other inferences or be described in other terms.” Id . at 254. Although the purpose of introducing the evidence may have been to rebut Escalante-Orozco’s mitigation evidence, the State used that evidence, together with the attack on Maria, as examples of the evil Escalante-Orozco committed that “forfeited his right to live,” thereby putting Escalante-Orozco’s future dangerousness at issue. The State also argues that it did not place future dangerousness at issue because the prosecutor focused exclusively on Escalante-Orozco’s past actions. Past instances of violent behavior, however, can “raise a strong implication of ‘generalized. . . future dangerousness.’” See id. at 253 (quoting Simmons , 512 U.S. at 171). As recognized by the Court in Kelly , “[a] jury hearing evidence of a defendant’s demonstrated propensity for violence reasonably will conclude that he presents a risk of violent behavior, whether locked up or free, and whether free . . . as a parolee.” Id. at 253–54. The State finally argues that any error was harmless. It is not
clear whether
Simmons
error is subject to harmless error review. The
Supreme Court has stated that “most constitutional errors can be
harmless.”
Neder v. United States,
future dangerousness at issue. In light of the Supreme Court’s decision in Lynch , the trial court erred by refusing to tell the jury that Escalante-Orozco was ineligible for parole. The error was not harmless. Unless our independent review reveals that the death penalty is unwarranted, the trial court must conduct new penalty phase proceedings.
2. Matters preserved for review and likely to arise on remand
(a) Jury determination of intellectual disability ¶128 During the penalty phase, the court instructed the jury that if it found that Escalante-Orozco had an intellectual disability by a preponderance of the evidence, it “must vote for a life sentence.” If the jury did not find an intellectual disability, it could still consider the evidence as a mitigating circumstance. Escalante-Orozco argues that the trial court abused its
discretion by denying his request for a bifurcated penalty-phase proceeding whereby the jury would first render a verdict on intellectual disability as a bar to a death sentence before deliberating on whether the mitigation was sufficiently substantial to call for leniency. He asserts that failing to bifurcate “ unconstitutionally conflated the jury’s factual determination of [intellectual disability] with the jury’s moral sentencing decision” and that there was a significant probability that once the jury found that he did not have an intellectual disability, it would fail to view that evidence as mitigating. Relying primarily on this Court’s decision in Grell II , the State
responds, and asserts in its cross-appeal, that Arizona law prohibits a jury from deciding whether a defendant has proven intellectual disability as a bar to a death sentence. It contends that the court erred by instructing the jury otherwise, making the bifurcation issue moot. We take up the cross-appeal first. When Grell II was decided,
the trial court was required to appoint a prescreening psychological expert in a capital case to determine the defendant’s IQ and then, depending on the score, either allow the death penalty to remain a sentencing option or decide, after an Atkins hearing, whether the defendant had proven an intellectual disability that bars a death sentence. See A.R.S. § 13-703.02(B)– (H) (2002). If the trial court did not find an intellectual disability, “the court’s finding [did] not prevent the defendant from introducing evidence of the defendant’s mental retardation or diminished mental capacity as a mitigating factor at the penalty phase of the sentencing proceeding.” Id. § 13-703.02(H) (2002). Grell argued that the trial court erred by not permitting the
jury to decide whether intellectual disability serves as a bar to execution,
even though the trial judge had made a pretrial determination on the issue.
Grell II
,
the legislature’s intent to permit a jury to decide whether a defendant has proven an intellectual disability that bars a death sentence. The consequence for opting out of pretrial Atkins procedures is waiver of a “pretrial determination of status”—not any determination of status. See id. § 13-753(B). The only remaining recourse for making that determination is during the penalty phase, where the trier-of-fact (typically a jury) is charged with making “all factual determinations required by this section or the Constitution of the United States or this state.” See id. §§ 13-752(P), -753(H); see also id. § 13-752(H) (“The trier of fact shall determine unanimously whether death is the appropriate sentence.”). The legislature further demonstrated its intent by deleting language that arguably limited the trier- of-fact’s consideration of intellectual disability evidence to being “a mitigating factor.” See § 13-753(H). Our interpretation is not limited to defendants who opt out of
pretrial
Atkins
determinations. A defendant’s presentation of evidence may
strengthen between the
Atkins
hearing and the penalty phase.
Cf. Grell III
,
a complete presentation of intellectual disability evidence. For example, if the prescreening psychological expert concludes that a defendant’s IQ is greater than seventy-five, the court cannot dismiss the notice of intent to seek the death penalty. See id. § 13-753(C). In that scenario, the defense is not entitled to contest the score, present contrary evidence, or present adaptive behavior evidence. The only time to permit such evidence and argument is during the penalty phase. Permitting the trier-of-fact in the penalty phase to determine
intellectual disability as a bar to the death penalty also fulfills the
legislature’s intent to avoid executing intellectually disabled individuals.
See
2001 Ariz. Legis. Serv. Ch. 260, § 3 (West) (“It is the intent of the
legislature that in any case in which this state files a notice of intent to seek
the death penalty . . . a defendant with [intellectual disability] shall not be
executed in this state.”). If we adopt the State’s position, a jury could
impose the death penalty in light of the strength of aggravating
circumstances even though it concluded that a defendant has an intellectual
disability. This result, which would contradict legislative intent and violate
the Eighth Amendment, is avoided by our interpretation of § 13-753.
In sum, the trial court did not err by instructing the jury that
it must impose a life sentence if it found by a preponderance of the evidence
that Escalante-Orozco is intellectually disabled.
See Grell III
,
erred by refusing to conduct a bifurcated penalty phase. Nothing requires a bifurcated proceeding, and here, nothing would have been gained. The court instructed the jury that if it finds an intellectual disability by a preponderance, it must impose a life sentence. The court further instructed that if the jury did not find an intellectual disability, it should consider the disability evidence as a mitigating circumstance that alone or with other mitigating circumstances may be substantial enough to call for a life sentence. The court did not err by conducting a single penalty phase proceeding.
(b) Admission of other-act evidence Escalante-Orozco’s ex-wife and her sister testified in rebuttal about acts of violence he had perpetrated against the ex-wife and another person. For example, the jury heard that Escalante-Orozco had put a knife against his then-pregnant wife’s throat and threatened to kill her. The trial court ruled that this evidence was relevant to rebut Escalante-Orozco’s intellectual disability claim because “[p]art of adaptive behavior includes social responsibility.” Escalante-Orozco contends that the court violated his due process rights because the evidence was irrelevant, highly prejudicial, and served as a non-statutory aggravator. Our rules of evidence do not govern the admission of
evidence during the penalty phase.
State v. Chappell
,
that he had an intellectual disability, which required proof, among other things, that he had a significant impairment in adaptive behavior. See A.R.S. § 13-753(K)(3). Dr. Sergio Martinez, the State’s expert, testified that maladaptive behaviors drug use, excessive drinking, and the like – must be considered in deciding whether a person’s ability to function stems from a significant impairment in adaptive behavior. The State asserts that evidence that Escalante-Orozco was controlling and drank alcohol during at least two of his violent episodes demonstrated maladaptive behavior and was therefore relevant. But the State does not point to any evidence linking Escalante-Orozco’s violent acts to a maladaptive behavior disorder that should be considered in deciding whether his adaptive behavior skills are impaired by an intellectual disability. Permitting the other-act evidence without linking it to
maladaptive behavior also unfairly prejudiced Escalante-Orozco.
See State
v. Smith
,
(c) Jury Instruction – “significant impairment” of adaptive behavior As part of its instruction defining “intellectual disability,” the
court properly told the jury that Escalante-Orozco must show “a significant impairment in adaptive behavior.” See § 13-753(K)(1), (3), (5). Escalante- Orozco argues that the court erred by refusing to additionally define “significant impairment” as meaning “performance on a standardized assessment instrument that is approximately two standard deviations below the mean.” He asserts that the American Association on Intellectual and Developmental Disorders recognizes this definition, and the instruction was necessary to give meaning to the term “significant.” The trial court declined to give the instruction, reasoning that there was disputed testimony on the issue, and the parties could argue the matter to the jury based on the experts’ testimony. A court is not required to define every phrase or word used
in jury instructions, and the trial court did not err by failing to define
“significant” for the jury.
See Forde
,
(d) Motion for acquittal After submission of evidence in the penalty phase, Escalante- Orozco unsuccessfully moved the court to reconsider its pretrial Atkins ruling that he did not suffer from an intellectual disability or, alternatively, to apply criminal procedure Rule 20 to find he suffers from an intellectual disability that precludes imposition of the death penalty. The court denied the motion as contested issues of fact existed regarding intellectual disability and also ruled that Rule 20 did not apply. Escalante-Orozco challenges the trial court’s ruling that Rule
20 does not apply to deciding whether a defendant has an intellectual
disability that bars imposition of the death penalty. Rule 20 applies to
“offenses charged in an indictment, information or complaint” or “an
aggravating circumstance.” Ariz. R. Crim. P. 20. Essentially, Rule 20 tests
the sufficiency of the state's evidence.
State v. Neal
,
civil summary judgment standard to deny the motion for reconsideration. Should such a motion be filed on remand, the court can consider it upon a showing of good cause pursuant to Arizona Rule of Criminal Procedure 16.1. See Grell III , 231 Ariz. at 161 ¶ 39, 291 P.3d at 358 (Bales, V.C.J,, concurring).
II.
Independent Review
Because Escalante-Orozco murdered Maria before August 1,
2002, we independently review the aggravation and mitigation findings
and the propriety of the death sentence. A.R.S. § 13-755(A);
Grell III
, 231
Ariz. at 154 ¶ 3,
A.
Intellectual disability
Escalante-Orozco bore the burden of proving intellectual
disability and did so if he showed by a preponderance of the evidence that
(1) he has significantly subaverage general intellectual functioning, (2)
existing concurrently with significant impairment in adaptive behavior,
and (3) the onset of these conditions occurred before he turned eighteen.
A.R.S. § 13-753(K)(3);
Grell III
,
1. General intellectual functioning
Escalante-Orozco proved that he has a significantly
subaverage general intellectual functioning by showing that it was more
likely than not that he has an IQ of seventy or below.
See
A.R.S. § 13-
753(K)(5) (defining “subaverage general intellectual functioning”);
Pima
Cnty. v. Pima Cnty. Law Enforcement Merit Sys. Council,
seven on the Bateria-III instrument administered by Dr. Martinez, who identified a 95% confidence interval from seventy-five to seventy-nine, we are not persuaded that this score diminishes the likelihood that Escalante- Orozco’s IQ is seventy or below. Three other tests placed his IQ at seventy or below, and the median IQ scores for all tests was sixty-six and seventy. Also, as Dr. Gomez pointed out, the Bateria-III is normed only to age twenty-nine. For older test subjects, like Escalante-Orozco, scores are based on a statistical prediction.
¶154 Escalante-Orozco also proved that his significantly subaverage general intellectual functioning started before he turned eighteen. Because Escalante-Orozco was never tested as a child, and his school records are few and unrevealing, we must rely only on anecdotal accounts of his childhood. But that is enough. According to Martha Cano Muñoz, his first-and-second-grade teacher, she tutored Escalante-Orozco after school because he had a difficult time in class and even with the extra tutoring, he never caught up. Escalante-Orozco failed and repeated second grade, did not pass the second time, and dropped out of school. Other people confirmed Escalante-Orozco’s intellectual
difficulties during childhood. A brother reported that Escalante-Orozco would let horses out and miscount them so he would fail to put them all back. A nephew testified that when they sold gum at baseball games as children, Escalante-Orozco was not permitted to do so alone because he would not give the correct change. The same nephew said Escalante- Orozco had trouble measuring things because of his difficulties in math. A childhood neighbor remembered that Escalante-Orozco had difficulties counting and “couldn’t learn” when she tried to help him with homework. In sum, Escalante-Orozco proved that he had significantly subaverage general intellectual functioning that started before he turned eighteen.
2. Adaptive behavior Conflicting evidence exists as to whether Escalante-Orozco
has a significant impairment in adaptive behavior. Dr. Martinez and Dr. Gomez each administered adaptive
behavior skills tests and conducted clinical interviews with Escalante- Orozco, his friends, family, and acquaintances. (As the prescreen expert, Dr. Ramirez only evaluated IQ and did not address adaptive behavior.) Dr. Martinez testified that while Escalante-Orozco has a weakness in academics, specifically math, he does not have significant adaptive behavior limitations. Dr. Martinez concluded that “maladaptive behaviors” (substance abuse and a character flaw) and a lack of an opportunity for academic advancement, rather than an adaptive behavior limitation, adversely impacts Escalante-Orozco’s functioning. Dr. Gomez diagnosed Escalante-Orozco as mildly
intellectually disabled. He concluded that Escalante-Orozco has significant deficits in at least two skill areas—functional academic skills and communication—which meets the DSM-IV-TR definition of significant adaptive functioning deficits. He disagreed with Dr. Martinez that Escalante-Orozco’s academic weakness was due to a lack of opportunity, pointing out that Escalante-Orozco repeatedly failed to learn when friends and family tried to teach him. Accounts from friends, family, and acquaintances supported
each expert’s opinion. For example, Banda testified that during their marriage, Escalante-Orozco got up, dressed, showered, brushed his teeth, and made coffee on his own during the week. Escalante-Orozco bought his own clothes, went to get his hair cut when needed, fixed things around the house, took the correct dosage of medicine when ill, and paid the rent. See A.R.S. § 13-753(K)(1) (defining “adaptive behavior” in part as the degree to which a defendant meets standards of personal independence). Robert Anderson, Escalante-Orozco’s supervisor at the
apartments, testified that Escalante-Orozco started as an unskilled worker, but he did a good job, caught on quickly, and had no trouble completing his assigned tasks. Anderson considered him capable of doing skilled work and so kept “adding on to his plate.” He worked on drywall, laid subfloors and tile, changed light fixtures, replaced shower heads and drains, and completed other construction and remodeling work. He also got along with his coworkers and showed up for work on time. See id . (defining “adaptive behavior” in part as the degree to which a defendant meets standards of social responsibility). On the other hand, Escalante-Orozco had trouble calculating
the amount of materials needed for construction jobs and how much to charge because he did not understand math. Although a relative tried to teach him, he was not able to learn. Escalante-Orozco sometimes accidentally left his tools at job sites, ran out of gas, and lent money when he needed it himself. We need not decide whether Escalante-Orozco proved that he
has a significant impairment in adaptive behavior. Even if he does, he did not prove that the condition started before he turned eighteen. See A.R.S. § 13-753(K)(3). Escalante-Orozco had an unenviable childhood. He was
raised as the youngest of twelve children in an extremely poor family in rural Mexico. As previously recounted, Escalante-Orozco struggled in school and dropped out in second grade. Similarly, only two of his siblings advanced beyond third grade and no one attended high school. The children worked to earn money and the family “never had enough to eat.” The family lacked sufficient money to send the children to school. Escalante-Orozco also suffered from chronic ear infections, which were painful. Despite his circumstances, Escalante-Orozco was quite social
as a child and consistently exhibited an ability to meet societal expectations.
See Grell II
,
tasks that did not involve reading and arithmetic. He kept himself clean and took pride in his personal appearance. As a four-to-five-year-old child, he took care of chickens, ducks, pigs, and other farm animals. He also gathered firewood from the woods. His father taught him how to care for sick horses and how to plaster. At age fifteen he moved to another city to live with family members and work at an assembly plant performing some type of electrical wiring work. There is no evidence that Escalante-Orozco needed extra supervision or support with daily tasks. Dr. Gomez based his conclusion that Escalante-Orozco had
the onset of mild mental retardation before age eighteen on the fact that he did not progress in school, despite the extra help given him by his teacher, and that everyone noted his difficulties with reading, writing, and math. While this evidence shows Escalante-Orozco’s significant deficit in functional academic skills before age eighteen, it does not demonstrate a significant impairment in adaptive functioning before that age. And although Dr. Gomez identified risk factors for a mild intellectual disability (for example, malnutrition and lack of stimulation), he did not say that these factors actually impaired Escalante-Orozco’s adaptive functioning or otherwise caused an intellectual disability. Escalante-Orozco points to a childhood neighbor’s
description of him as not “normal,” “kind of lost,” and “daydreaming” when at play as evidence of a significant impairment of adaptive functioning in childhood. In light of the many people who described Escalante-Orozco as a normal, social child, we are not persuaded by this contrary description to conclude otherwise. In sum, Escalante-Orozco failed to show he had significantly
impaired adaptive functioning before age eighteen. Consequently, he did not prove that he has an intellectual disability, and the Eighth Amendment does not bar imposition of the death penalty.
B. Aggravating circumstances The jury found that Escalante-Orozco murdered Maria in an especially cruel manner. A.R.S. § 13-751(F)(6). Escalante-Orozco argues that the State failed to prove the (F)(6) aggravating circumstance, emphasizing that there were no witnesses able to testify about what happened and postulating that the killer could have approached Maria silently to slash her neck, thereby rendering her immediately unconscious. He also contends that because of his “mental impairments and his statement that he ‘blacked out’ after drinking two beers and woke up in [the victim’s apartment] without knowing how he got there,” the State failed to prove that Escalante-Orozco knew or should have known that Maria was suffering as he stabbed her. . To decide whether the State proved the (F)(6) circumstance,
we review “[t]he entire murder transaction,” not simply the final act that
killed the victim.
State v. McCray
,
supports an (F)(6) finding. Maria suffered fourteen stab wounds on her face, neck, left shoulder, arms, and hands, many of which Dr. Ross described as antemortem (before death), non-fatal, and defensive She also had bruises on her face; areas of bleeding—potentially hemorrhages—on her scalp; and scrape marks on her arms and legs . Dr. Ross stated that several of these injuries were consistent with defensive wounds, including several of the stab wounds on Maria’s forearm, left palm, and right wrist, and a laceration on her tongue likely caused by her biting it. As previously recounted, Maria also had lacerations in her genital area. Her left-hand fingernail clippings bore a mixture of blood consistent with a combination of her blood and Escalante-Orozco’s, which indicates she fought him. Detective Jack Ballentine, one of the crime scene investigators, testified that a large blood clot in Maria’s apartment was likely from her . coughing up the heavy accumulation of blood that had pooled in her lungs or throat after it was slashed. He testified that blood spatter on the walls and carpet was also consistent with coughing up blood. He further testified that the crime scene evidenced a struggle and “movement where that blood was then being transferred to the wall – across the carpet.” Chunks of Maria’s hair were scattered throughout her apartment, which also indicates a struggle. Escalante-Orozco asserts that because Dr. Ross could not
establish the order in which Escalante-Orozco inflicted Maria’s wounds or
the specific amount of time she suffered, her murder was not especially
cruel. We rejected a similar argument in
State v. Cañez
, 202 Ariz. 133,
161 ¶ 104, 42 P.3d 564, 592 (2002),
abrogated on other grounds by State v.
Valenzuela
,
that Maria suffered physical pain and mental anguish for a significant
period of time, likely more than the eighteen seconds to two to three
minutes that was sufficient to support the especial cruelty finding in
State
v. Herrera
.
have known of Maria’s physical pain and mental anguish before she died.
The violence and duration of the struggle suggest Escalante-Orozco
possessed this knowledge.
Cf. Benson
,
reasonable jury may not have been persuaded that Moody knew or should
have known that his victims suffered because he suffered from a
“dissociated state” caused by psychosis or drug impairment.
circumstance beyond a reasonable doubt.
C.
Propriety of death sentence
A death sentence is appropriate if mitigating circumstances
are insufficiently substantial to call for leniency. A.R.S. § 13-751(E). To
make this determination, we consider the quality and strength of
aggravating and mitigating circumstances, and not their number.
See
Prince
,
circumstances by a preponderance of the evidence. A.R.S. § 13-751(C). He
argues he did so by introducing evidence of an intellectual disability, his
impoverished childhood, and physical abuse by his father.
Escalante-Orozco’s significantly subaverage
intellectual
functioning and his extremely underprivileged childhood are non-statutory
mitigating circumstances.
See
A.R.S. § 13-751(G) (listing statutory
mitigating circumstances). The family lived in over-crowded conditions,
worked hard, and continuously labored under the threat of going hungry.
For example, the family typically ate once a day, primarily eating beans,
potatoes, and tortillas. Escalante-Orozco’s father “was strict, ill tempered,”
and would discipline his children by hitting them with a switch, belt, or
other object. Escalante-Orozco’s low IQ and lack of formal education
exacerbated his poor start in life. But Escalante-Orozco did not establish a
connection between his intellectual functioning level and poor upbringing
and the crimes, and so we give these circumstances little weight.
See Prince
,
226 Ariz. at 543 ¶¶ 119–20, 250 P.3d at 1172. His underprivileged
background is made even less weighty by the fact that he was twenty-six at
the time of the murder and had long lived away from his family.
Cf. id.
at
541–42 ¶¶ 109–11,
D. Other Constitutional Claims Escalante-Orozco lists twenty-nine other constitutional claims that he acknowledges this Court has previously rejected but that he seeks to preserve for federal review. We decline to revisit these claims.
CONCLUSION We affirm Escalante-Orozco’s convictions and non-death
sentences. In light of the United States Supreme Court’s opinion in Lynch , we reverse the death sentence and remand for a new penalty phase proceeding.
Notes
[1] We cite the current versions of statutes unless material changes have been made since Escalante-Orozco committed the offenses.
[2] We view the facts in the light most favorable to sustaining the jury’s
verdict.
State v. Gallegos
,
[3]
Miranda v. Arizona
,
[4]
Atkins v. Virginia
,