State v. Cornell

878 P.2d 1352 Arizona, Appellee,

The STATE of CORNELL, Appellant.

Joe D.

No. CR-91-0072-AP. Arizona,

Supreme Court of

En Banc.

Aug. Woods, Atty.

Grant Paul J. Gen. Phoenix, McMurdie, Anderson, Jon G. appellee. Bassett, Phoenix, appellant.

Neal W. ap- truck and left his building, Victor OPINION got out Defendant Defendant. proached FELDMAN, Justice. Chief De- approach, seeing Victor After his truck. County Maricopa In November a “shoot- pistol, assumed produced fendant D. Defendant Joe Cornell stance,” convicted shot hit fire. One opened er’s murder, degree degree attempted first first to take cover he tried arm as Victor murder, assault, degree truck, aggravated and first granddaughter which his behind his him to death burglary. The court sentenced hit a window Another bullet sitting. was still imprisonment conviction and Daphne on the murder which through the door next to remaining Defendant filed on the counts. building. into the just passed juris timely appeal. This court has notice of disabled, fol- Defendant Leaving Victor to Ariz. Const. appeal pursuant diction Daphne ran building. Daphne into the lowed 5(3) §§ 13- 13-4031 and art. and A.R.S. her in which several area into an office 4033(A). reason for some present, but were coworkers reached to the floor. she fell HISTORY FACTS AND PROCEDURAL her. above lay and stood Daphne spot where been an to have Margaret Daphne appears Dad there point Defendant killed At this father, words, Daphne said Victor in which (“Daphne”) wounded her exchange Daphne a (“Victor”), called Department you,” at the Arizona Dad “damn (“ADOT”) pistol fired his building in Phoe- then Transportation “bitch.” Defendant times, shots years only one of these 1989. For several but nix on December least three time, Daphne had this wound Defendant and died from Daphne. before that She hit relationship “on and off” shortly maintained an thereafter. Daphne together. point, At some

had a child In so building. then fled relationship and attempted to break off the people with one or more doing, he threatened Defendant re- began seeing another man. not interfere with they would gun so that the Daphne harassed accept fused to this and building, De- the leaving After escape. his her telephone of calls to making hundreds and drove to the truck returned fendant places employment. He home and her two later, placed a call away. Some time kill her if she did threatened at least once to they sister, during the conversation and days A the not answer his calls. few before been Daphne had the fact discussed shootings, Daphne followed and Defendant Later, to a Chan- Defendant drove killed. building boyfriend the ADOT her new out of from the sought counsel dler church This incident and started an altercation. afternoon, De- pastor the took pastor. That aggravated in an assault conviction resulted station, where police the Chandler fendant to Defendant, in which is discussed against Police voluntarily surrendered. Defendant 11(C) below. more detail in weapon in his truck. murder found the 8, 1989, shortly after 8:00 On December County grand jury indicted Maricopa A a.m., job Daphne to her at the drove Victor murder, attempts degree for first Defendant daughter was building. Defendant’s ADOT murder, aggravated as- three counts ed way, saw a in the truck. On the Victor also sault, burglary. The and one count stop stopped at a driven Defendant truck indictment, dropping one amended later one recognized the truck as sign. Victor The trial court assault. aggravated count of brother. Defen- belonging to Defendant’s rep- defender’s office to public appointed the pulled into traffic behind Victor quickly dant Defendant, Defendant before trial but resent them, followed caught up Daphne, The court represent himself. moved to Defen- tried to elude close behind. Victor public appointed a motion but granted this unsuc- by driving erratically but was dant advisory coun- him as work with defender to cessful. investigator appointed an The court also sel. pre- in to assist Defendant paralegal building, and a the ADOT they arrived at When defense Defendant’s sole case. paring his directly in of the door and pulled front Victor form of he had suffered way to trial was Daphne As made her Daphne out. let temporary during insanity shooting. that use The of the words “true bill” and the jury degree grand jury foreperson’s signature prej- convicted first were murder Daphne, attempted surplusage. of udicial This court affirmed the murder Victor, conviction, part count aggravated relying and one each of United States v. Ramirez, (9th Cir.1983). degree assault and burglary, first but 710 F.2d acquit- ted aggravated Defendant on second as- Ramirez, present inas sault judge count. The sentenced Defendant hearing jury complained about the murder, to death twenty-one years for the phrase grand jury charges.” Id at “the prison murder, attempted for the fifteen rejected argu- The Ramirez court years assault, aggravated and fifteen ment because the trial court had instructed years burglary, for the with prison terms the jury that the indictment was not evidence consecutively to be served to each other and against the accused raised inference count, to the sentence on the murder as well Here, guilt or innocence. similar instruc- as to previous on his aggravated sentence tions given. were We think this instruction judge assault The conviction. also ordered any prejudice. sufficient to avoid the. Given restitution to the victims. alleges instruction, reading of the indictment during several errors occurred his trial. certainly pro- did not violate Defendant’s due allegation We discuss each in turn. rights. cess

TRIAL AND APPEAL ISSUES pay videotapes B. Court’s refusal of television interviews with witnesses Reading A. jury the indictment to the shooting to the alleges the trial court Shortly trial was scheduled to before having erred in clerk read the indictment begin, the court to Defendant asked autho beginning at the of the trial. The payment rize to several local television sta indictment in this case contained the follow- videotapes tions for news of witness inter ing language: grand jurors Maricopa “The just shootings. views The made after County, Arizona, accuse Joe D. Cornell on imminent, court noted trial was that the day 15th of December charging presented request Defendant could have Arizona____” County, that Maricopa De- much earlier. also said he be fendant telling jurors another get lieved Defendant could the information in group already of citizens has determined that ways, by sending other such as out the inves there is believe guilty evidence to he is tends tigator. to make jurors vigilant they less than therefore, be; should rights Defendant now that the court’s fail- pro- to due pay tapes deprived ure him impartial cess and to an to for the of his under the Unit- rights process guaran- ed States Arizona to a fair trial and due Constitutions were Const, agree. violated. teed U.S. amend. 5 and Ariz. We cannot Const, 2, §§ art. 4 24. He advances object Because Defendant failed to proposition several reasons for that later indictment, to the reading of he is pre acceptable have interviews would not been an now, cluded from arguing the issue absent original substitute for the interviews. 103(a) fundamental error. Ariz.R.Evid. (d); Bible, 549, 572, State v. 175 indigent, Ariz. 858 Because Defendant was (1993). 1152, error, P.2d 1175 It was the trial a court had both constitutional and otherwise, fundamental or statutory duty provide read the indict him with certain 19.1(a)(1), ment jury. Ariz.R.Crim.P. essential tools of defense. United (9th requires Sims, 1371, the clerk to read the F.2d indictment. States v. 617 1375 rejected Cir.1980); 13-4013(B); this court a similar claim see also A.R.S. Ake 174, 68, 152, Oklahoma, 76-77, Amaya-Ruiz, State v. 166 Ariz. v. 470 U.S. 105 S.Ct. denied, (1985). 1260, (1990), 1087, 1092-93, 84 800 P.2d 1282 cert. L.Ed.2d 53 500 Howev 929, 2044, er, indigent U.S. 111 114 does not an S.Ct. L.Ed.2d 129 have (1991). items that he argued that the defendant unlimited to all believes

321 (Cal. 327, CalkRptr. 132 Cal.App.3d 154 State v. Ya necessary are for his defense. nich, App.1979). 110 Ariz. 516 P.2d (1973). expend public monies The decision to Here, with- tape was unavailable one the defense rests within the trial assist to ex- failed and Defendant prepayment, out Clabourne, court’s sound discretion. State would how it specifically plain the court (1984); 142 Ariz. 690 P.2d any Nor is there helped his case. 531, 540-41, Knapp, used in the record that evidence denied, (1977), P.2d 713-14 cert. investigator to conduct court-appointed U.S. 98 S.Ct. 55 L.Ed.2d tape con- to find out what interviews (1978). provide a court’s refusal to Whether justify ex- could that Defendant tained so process such funds is a violation of due de fail- Defendant’s obtain it. pending funds to good pends on whether there were reasons from the prejudice ure demonstrate requested expenditure. for the State Wat precludes relief. State decision court’s son, 178,181-82, 4-5 Rigsby, (1978), denied, cert. U.S. S.Ct. discretion, (1989). nor no abuse findWe 1254, 59 L.Ed.2d 478 Defendant, and any prejudice evidence to authorize request, the trial court’s refusal

At the time Defendant made this hold that tapes deprive Defen- payment for the did paying there were other alternatives of law. tapes. process fair trial or due One alternative was obtain free dant copies. undisputed It one had station waiver C. Defendant’s provided charge already tape its free of its agreed another station to make argues that his waiver Defendant next available, tape hoping the court would later gives He three reasons: counsel was invalid. said, “no payment. Only order one channel (1) Defendant to contin- it error to allow payment, tape.” tapes Had the re- free ordering a himself without represent ue to information, vealed useful Defendant could hearing court competency after the mental argument to convincing then have made a relying on be that Defendant would learned regarding tape. court the need for third (2) defense; error insanity it was temporary Another alternative was to conduct further specifically the waiver without accept investigation to at least what was determine self-representation warning Defendant tapes explain on the and then to the court defense; insanity incompatible with an why they would be useful. (3) any defendant it is error to allow insanity to waive the asserting an defense recognize may it diffi right to counsel. impossible cult or even for a defendant matter, evidence, note that the preliminary As a piece show the need a certain governing the prejudice, applicable standard of review or to later show without ever hav However, counsel is ing recognize it. of defendant’s waiver of seen we also issue cannot, previously This has called limited bud settled. court courts consistent with fact, having validity question to a waiver a gets, put position pay in the of such be applies. every may implying a be deferential standard item defendant thinks that a Doss, 160, 156, Ariz. 568 P.2d be v. 116 useful. There must sufficient reason State (1977). 1054, jurisdic other likely 1058 Courts in think that the assistance is rea stan necessary expressly applied deferential sonably presentation of an ef tions have See, State, Crystal v. Apelt, e.g., 616 So.2d defense. State v. 176 dards. fective Michael (abuse (1993). 150, 349, 366, 634, of discretion (Fla.App.1993) 651 152 861 P.2d Gallant, 413, standard); 595 A.2d Thus, State v. requesting a court to au a (Me.1991) (same); Green, State v. 238 416 payment thorize at least advise should (1991) 328, 470 736, (clearly 745 inquiry Neb. N.W.2d general lines court standard). However, at least one requested help pursue. erroneous material will Cf. Cir.1974), (9th corpus review has described Arizona, court on habeas Mason v. 504 F.2d 1345 and fact and 936, question of law denied, as mixed 420 95 a rt. U.S. S.Ct. ce Harding Faxel, v. standard. See 1145, 43 (1975); de novo applied a People L.Ed.2d 412 322 (9th 853,

Lewis, Cir.1987) 834 F.2d 857 Edwards ly, intelligently, voluntarily. cert. denied, 871, 182, Arizona, 1880, 488 477, 482, U.S. 109 S.Ct. 102 S.Ct. 451 101 U.S. (1988). 1884, Faretta, (1981); L.Ed.2d 68 L.Ed.2d 378 835, A mentally U.S. at 2541. at S.Ct. parties directly The to this case incompetent knowingly defendant cannot or argued us, standard review to and we rights. intelligently waive constitutional attempt do not to settle the here. Robinson, Pate 383 U.S. S.Ct. However, because Defendant has been sen- (1966); Doss, L.Ed.2d Ariz. at tenced death we have reviewed the entire 1058; at see also Westbrook v. error, record for fundamental and our review Arizona, 384 U.S. 86 S.Ct. has convinced us answer Defen- (1966). L.Ed.2d 429 Had Defendant been dant’s contentions would be the same under trial, alleged to be insane the time either a de or novo deferential standard. trial required court would have been to hold hearing competence a on his to waive coun competency hearing 1. A was not re- sel, if already even there a finding been quired competent that he was to stand trial. West first argues brook, 384 U.S. at 86 S.Ct. at 1320. ordering competen court erred a present however, In the no one has cy hearing' after the court learned that De alleged ever mentally Defendant was ill asserting fendant would be type a of insanity fact, at the time of trial. Defendant’s own defense.1 The United States Constitution expert witness testified at trial that Defen- a creates delicate balance between a defen dant was insane at the time of trial. right dant’s right counsel and the to pro Rather, Defendant claimed that had suf- propria ceed persona. The Sixth and a special temporary fered from form of in- Fourteenth Amendments to the United sanity triggered by specific that was event. protect States Constitution both of these rights. California, Faretta v. 422 U.S. The competency test for whether a 95 S.Ct. 45 L.Ed.2d 562 The hearing is is not mandated whether defen waive counsel is therefore limited in past, dant was insane at some time in ways. several generally See S. John Herb- even whether he free of all mental illness rand, Annotation, Right Repre Accused’s the time of the waiver. See State v. sent in State Criminal Proceedi Himself Harding, 670 P.2d ng-Modern Cases, 98 A.L.R.3d 13 (1983) (mere diagnosis of mental illness (1980) (hereinafter Right 2[a] Accused’s waiver); necessarily preclude does not valid Represent Himself). Evans, (1980) (same). Rather, whether, One limitation is that a waiver of it is counsel, valid, to be must knowing- be made on the basis the facts and circumstances alleges, In addition to explicitly the errors Defendant that the court never ruled on his mo- independent Rather, note that our pro review of the per grant- record tion for status. the court hearing. two discloses minor errors in the waiver ed case, motion other in Defendant’s assault First, 6.1(c) specifies Ariz.R.Crim.P. that a waiv being during which was tried same time may writing provides er of counsel inbe However, period. entry court’s indi- minute form be used. We find no indication in the per pro cates that Defendant’s motion for status signed record that Defendant ever such a form. granted disparity cases. both be- However, signed Defendant submitted a hand judge's in-court tween the statements counsel, motion written to waive which was suf entry a minute was at most harmless technical purposes ficient for the of the rule. State v. Cf. because, during hearing, error the court dis- 278, 287, 383, Harding, 137 Ariz. 670 P.2d 392 adequately both cussed cases and ascertained (1983) denied, 1013, cert. 465 U.S. 104 S.Ct. necessary appropriate and considered the factors 1017, (1984) (waiver 79 L.Ed.2d 246 was valid to determine whether Defendant's waiver in this form); though sign even defendant refused to Moreover, parties clearly case valid. all was Evans, 401, 403, 35, State v. Ariz. 125 610 P.2d granted, believed Defendant's motion had been (1980) (absence 37 of written waiver not revers and later choice several Defendant reaffirmed his error). ible during proceedings. times Second, judge’s during the trial statements hearing on suggest waiver of Defendant’s counsel

323 throughout conduct judge, position. there or Defendant’s to the trial was should known he could and good faith the de- the trial thus left no doubt been a doubt about have “ability rights. the nature his fendant’s understand did understand waiver, partici- consequences of the or and Moreover, in other cases in contrast pate intelligently proceedings in the re competency hearings have been which among the alterna- make a reasoned choice counsel, advisory quired, here Defendant’s 856; F.2d presented.” Harding, tives 834 at months, never him for who worked with Goldsmith, F.2d see also 906 Cuffle Compare competence. Fate. questioned his Martin, (9th Cir.1990); Ariz. 102 (court erred at 841 at 86 S.Ct. 383 U.S. If the 426 P.2d hearing com ordering a to determine doubt, process record raises such a then due insisted counsel trial where petence stand required hearing a on the the court initiate issue), sanity in was present defendant’s competence defendant’s to waive counsel. (error Evans, not to F.Supp. 794-98 at coun duty throughout This hearing continues on waiver competency order any advisory trial if incom counsel evidence of defendant’s sel counsel where petence before, right during, competency to waive the counsel issue of raised proceed propria persona trial), Hafen, arises. State States v. and after with United denied, Mott, 452, 459-60, (1st Cir.1984), 784 P.2d cert. 726 F.2d Thus, (Ct.App.1990). question 285-86 80 L.Ed.2d 561 466 U.S. 104 S.Ct. present (1984) case whether the evidence (upholding of counsel without waiver compe raised some competency part doubt about Defendant’s because defen hearing in hearing compe tence to waive counsel at the waiver did not his dant’s counsel trial). any subsequent stage at of the trial. Such tence at time a doubt arises “when there is ‘substantial evidence did conclude that the incompetence.” Harding, evidence’ of significant that Defen any not raise doubt 856; Raines, F.2d at see also Evans v. competent to waive counsel and dant was (D.Ariz.1982). F.Supp. “Evidence propria persona. once proceed include, incompetence may but is limited the defendant a court has determined that to, history the existence of a of irrational counsel, isit competent a waiver of made behavior, opinion, medical and the defen to force counsel province within court’s Evans, dant’s demeanor trial.” Martin, on the defendant. F.Supp. at 795. Therefore, the court’s ac at 642. review, Our shows record ceptance of waiver of Defendant’s hearing during that Defendant’s behavior hearing ordering competency did a without gave suspect and at trial reason process. to due not violate Defendant’s mentally incompetent his understand rights. contrary, theOn Defendant listened adequately warned Defendant judge’s questions at the hear waiver next contends that Defendant ing intelligently. and answered them More his have warned him that should over, throughout pretrial period, trial planned incompatible with self- defense was prepared lucid hand dozens of ju representation. in a written motions and conducted himself person simply rors will not believe that manner, demonstrating that he un rational enough could to conduct competent the available alternatives and was derstood time earlier insane a short been so among them. able to make reasoned choices Thus, responsibility. as to avoid criminal may competence Doubts about defendant’s asserts, waiver was not intelli his at trial. State be removed conduct him of did not inform gent because the court Conde, was therefore danger, and his waiver fact, (Ct.App.1992). one more than invalid. Defendant asserted his Faretta occasion remonstrations, court disagree. In this case the trial rights spite judge’s to that inquiry sufficient ensure plainly explained legal for his conducted an and basis dangers Defendant understood the ing insanity and dis- represent defense to himself advantages of self-representation. jurors judge not because know that a would judge adequately warned Defendant person represent of allow an himself insane charges against possible insanity him and the penal- and therefore would not believe the judge ties. The also spe- warned of several allowing defense. He face, problems cific likely Defendant would represent process himself his due violated including investigating difficulties in the case rights under the and Arizona United States and the necessity to follow expected court- reject argument. Constitutions. We procedure. addition, room In judge

warned, will you, “I tell I don’t think it’s The Sixth and Fourteenth Amend you represent yourself light advisable that ments to Constitution the United States penalties charges the serious face Const, 2, § guarantee criminal art. you.” right to represent defendants the themselves Moreover, court, Faretta, at Defendant’s re- at trial. 422 U.S. at S.Ct. at quest, provided 2539-40; advisory Nistor, Defendant with State v. De counsel, who was available advise Defen- right This is regarding dant strategic considerations such merely abrogated assertion of a as a jury likely whether was more or less particular Although may it be defense. if represented believe him he himself. That insanity wise to combine an defense with attorney, who previously had been Defen- self-representation, argument Defendant’s record, dant’s counsel told the he court of his its confuses the wisdom waiver with strongly advised Defendant not to under- propriety. constitutional It amounts to a self-representation take it because was “sim- that, complaint if knew even Defendant what ply wrong choice to make.” The doing, right he and thus had the was waive questioned Defendant to ensure that he had counsel, stopped the court should have him warnings heard those as well. making from an unwise choice. The court power: guarantees does have this the law Although a court should warn of the if defendant the waive counsel he dangers generally disadvantages inher Faretta, mentally competent to do so. Faretta, self-representation, ent in 422 U.S. (quoting U.S. at 95 S.Ct. Illinois 95 S.Ct. at it is not reversible Allen, 337, 350-51, U.S. 90 S.Ct. every error to fail to warn of possible strate (1970)) (although defen L.Ed.2d Green, gic consideration. 470 N.W.2d at Cf. may dant conduct to his defense own detri (formalistic warning required). is not ment, “his choice must honored out of warnings this case the court’s were numer respect ‘that for the individual which is the enough put ous broad ”). therefore, hold, lifeblood of the law.’ We self-representation notice that was not advis acceptance of Defen trial court’s appointment able. the court’s waiver of dant’s counsel was not error. advisory counsel ensured Defendant had precisely access to advice about kind concern of which complains. Defendant now advisory D. Trial refusal allow court’s Finally, strategic Defendant’s basic direct exami- conduct pragmatic concern—convincing psychologist nation of Defendant’s

he was insane at the time of the even crime though appeared sane at the time primary Defendant’s defense was every trial—exists in “temporary claim of type organic per that he suffered from a insanity,” regardless of whether sonality psychotic trigger disorder called the has counsel. There was no syndrome. Immediately error. De reaction before testify psychological expert fendant’s Insanity preclude defense does not concerning theory, told self-representation di unprepared court he to conduct the

Finally, Defendant contends that a rect examination and asked the court to allow advisory court never it should allow a defendant counsel to conduct instead. assert- (1977) v. United States (citing prosecutor objection. had no Howev- The (N.D.Ind.1976)) Gaines, stated, er, provides F.Supp. 1047 judge “Case law State, (same); you hybrid ... and I’m v. 777 S.W.2d Scarbrough can’t have counsel (same). in We have going (Tex.Crim.App.1989) not to let that occur this case.” Hybrid representation is defendant counsel concurrent courts to allow a never forbidden co-counsel, Advisory courts both defendant and counsel. to as and some Arizona act Cannon, stated, honor, See, previously e.g., I counsel had “Your so. have done (Ct. dangerously hybrid 148-49, am becoming close to a 618 P.2d 642-43 counsel, Aponte, is in which disfavored this state.” see also United States App.1980); (9th Cir.1978). 1247, 1248 judge grant request refused to Whether un- 591 F.2d representation hybrid remains less Defendant withdrew his waiver of coun- to allow such judge. sel permanently advisory and allowed counsel of the trial within the sound discretion Evans, Thus, to conduct the rest of the trial. n. 9. F.Supp. at 797 adviso judge in allowed this case could have reluctantly chose to to continue witness.2 ry to this crucial counsel examine himself, represent proceeded and to conduct psychologist, the direct examination of the Nevertheless, is raised here Dr. McMahon. Defendant now been al- Defendant should have not whether skill required properly because more is to throughout trial to as co-counsel lowed act expert examine an than other witnesses and judge improperly prevented but whether the prosecutor objection, because the had no to reinvoking right from his coun- rights court’s refusal violated Defendant’s instance. The Arizona Rules sel this process due and assistance of counsel under provide for waiver Criminal Procedure the United States and Arizona Constitutions. of such a waiver. counsel and withdrawal (e). 6.1(c) and See Ariz.R.Crim.P. recognize Arizona does not a consti that these correctly pointed during out trial hybrid representation. right tutional many times a explicitly do limit how rules not Cook, State v. 170 Ariz. 821 P.2d may representa- switch between — (1991), denied, U.S. -, cert. self-representation. tion (1992); S.Ct. 121 L.Ed.2d 90 State v. However, deny this case did Rickman, 715 P.2d right to his waiver Defendant the withdraw Most jurisdictions follow simi clearly He told Defendant: of counsel. Right Represent lar rule. See Accused’s Himself, at 98 A.L.R.3D 25. right You ... withdraw time, any accept I that. And waiver at think, however, that, at you to do fíne. But if want may made trial statements at reflect mis that, you then Mr. point if want do understanding point. of the law on this Nei let your lawyer. going I’m not Avilla is any prohib ther our cases nor applicable law you go back and forth. Rather, hybrid merely its counsel. we have Thus, issue not Defen- right. held that it is not a what was at here was constitutional Cf. but, Stevens, right his to counsel 311 Or. 806 P.2d dant’s assertion of (accused (1991) rather, ability to that assertion right hybrid no coun make has discretion); being re- may contingent subsequently able to permit sel in its but court State, per Bradberry pro status. 364 N.E.2d invoke his Ind. right recognize judge’s power Although the trial no we

2. The dissent reasons that “if there is hybrid representation, sense of permit in the hybrid representation, then court has This, believe, advisory participate at some power allowing counsel to it.” at we to allow Post reason, specific guar- point Simply thing in the trial and for some incorrect. because a is 148-49, see, Cannon, automatically e.g., as does not mean it anteed 642-43, add, advisory counsel hasten to as Arizona is forbidden. The United States and procedure is rights disfa- guarantee that such a do not said certain but Constitutions many procedural likely every It is to create purport prescribe vored. detail of courtroom very adopted pro- problems should be procedure. our rules criminal reasons, unusual, specific when neces- represen- expressly prohibit hybrid do cedure justice. sary the ends of to serve tation. A right discharge signed convey jury defendant’s to to the of that a verdict proceed persona counsel and propria is a guilty insanity not reason of result would qualified right begun. once trial has in Defendant’s immediate release: Strickland, 695, 698, Ariz.App. 558 P.2d Scull, Q. Attorney]: Deputy County [K.G. (1976). right has the So, words, though you in other even ask that appointed counsel be to represent Dad, Daphne that he shot assumed shot trial, midway through him but the court her father and did whatever he did else stop need not the trial for the convenience of around, way aiming gun of he the defendant each changes time he his mind. today should walk out of the courtroom DeLuna, free man? McMahon, psychologist]: A. That’s [Dr. jurisdictions Other follow the same my make, not decision to Scull. Mr. uniformly “[I]t rule. is held all motions jury’s. That’s pro per jury [for status] made after selection begun untimely,” has are and thereafter the Q. That’s ultimate result if follow we grant decision such a motion rests within conclusion, your is it not? the sound discretion of the trial court. Ac that, A. If the so then— decides Right cused’s Represent Himself, no, Q. yes answer it? The is isn’t 22; Ylst, A.L.R.3D at see also Jackson (9th Cir.1990); Nistor, F.2d De Well, no, may very A. because the court 412-13, 694 P.2d at 242-43. Denial of a Hospital well commit him to the State untimely defendant’s motion is not an abuse treatment. of discretion. Right Represent Accused’s Q. opinion Excuse me. Your is that Himself, Thus, 98 A.L.R.3D at once 22. De as he today? sane sits here counsel, fendant invoked his it was A. Yes. judge’s within the discretion not to allow him circumstances, to switch back. Under these Q. opinion Your then is that he would warning Defendant in advance the court out the back walk door courtroom not switching prop would allow further he is sane. because given er. Defendant opportunity Objection, The your Mr. Cornell: honor. have counsel under these terms but chose already been an- asked and not do so. judge’s ruling The was there swered numerous times. fore an abuse of discretion. The He has not that. Court: answered allegations prosecuto- E. Defendant’s of honor, said Mr. Cornell: Your he has rial misconduct that— alleges prosecu- next please, The Let me see and Court: trial, deprived tor’s conduct of him a fair make a record in we’ll a minute. complaining of two infractions. (R.T.) 15,1990 Reporter’s Transcript Nov. 1. Prosecutor’s remarks added). (emphasis 83-84 The trial court acquitted by would be set free if rea- objection then unre sustained after an temporary insanity son of ported bench conference. Defendant incident, improp In the first and other remarks prosecutor these were asked expert questions they Defendant’s jurors’ witness de- er diverted the because attention defendant, part argument, yet spoken As a Defendant also it's hadn’t even subject supposedly causing notes two other all this incidents in which because of Mr. Dad First, potential got problem upset. Defendant’s during release was raised. that has this fellow That’s so witness, so, going just just cross examination of the same ... folks. That isn’t said, prosecutor your you "And ... visualize have to have wash. We more than that before somebody try supportive guilty by role here as to to find data he is insani- for a tell reason of added.) theory explain (Emphasis ty go that will Joe Cornell’s conduct sin no more." ” Later, added.) (Emphasis objectiona- set him indirect references less We find these free? closing argument, prosecutor again analyzed the reference text ble than subject separately. do "[Victor touched of freedom: not discuss them Dad] therefore that the insanity present it in the case was and focused vice from issue acquittal. jurors’ attention instead on the called the questions results they with which disposition, a matter issue longA held that this line of our cases has not to concerned. were See State type improper. statement is Purcell, 308, 305, 439, 442 117 Ariz. 572 P.2d consid- juries not to The that are principle (1977); 535, 533, Wilcynsky State v. 111 Ariz. is a verdicts consequences of their er the 738, (1975); Makal, 534 P.2d 740 104 State v. ... of labor of division reflection the basic 476, 477, 450, (1969); 455 Ariz. P.2d 451 State jury’s func- jury. The between 677, Jordan, 193, 198, v. 80 Ariz. 294 P.2d and to decide tion to find the facts is Clark, (1956); State Ariz. 681 see also v. 110 facts, whether, defendant is on those 244, 1238, 1240(1974); 242, 517 P.2d State by judge, The guilty charged. crime of the Karstetter, 539, (1974); 110 521 P.2d Ariz. 626 contrast, Informa- imposes sentence— 181, 180, Puffer, Ariz. P.2d 110 516 a ver- consequences of regarding tion 316, 317 (1973). long prevailed This view has jury’s irrelevant dict is therefore Annotation, virtually jurisdictions. all jurors sentenc- providing task. Prejudicial Argument or Comment Effect of ponder ing them to information invites Accused, Acquitted that In Ground if of province, their not within matters that are sanity, be Released Would Institution from factfinding re- distracts them from their Committed, to Which 44 979- A.L.R.2D possi- strong a sponsibilities, and creates 81 bility of confusion. questions by The propounded rhetorical prosecutor suggested jury if — -, States, U.S. Shannon v. United accepted temporary insanity of the defense 2419, 2421, ---, 114 S.Ct. 129 immediately re- Defendant would have been Makal, (1994); 104 see also 459 L.Ed.2d was, course, entirely leased. of This (jury neither 455 at 451 Ariz. at P.2d law, a correct. Under Arizona defendant responsible for defen concerned with nor a found have been insane at the time of The disposition). present state dant’s be homicide would first committed for evalu- McLaughlin, 133 law is forth in State v. set long-term ation could be held for treat- (1982) 458, 461-62, 534-35 Ariz. 652 P.2d ment, necessary. § if See A.R.S. 13-3994.4 (defendant on dis to instruction entitled true, however, It is also that under juror party told position where an outside prosecutor’s suggestion facts this acquitted if free that defendant would set contended, largely was correct. Defendant insanity and defen by temporary reason testified, expert and his witness instruction; “dis requested disposition dant trigger producing reaction Defendant’s tem- never be position a defendant ... should insanity porary episodical was brief and deliberations”); by jury in considered its nature and that Defendant was sane at the Jensen, 408, 410, Ariz. 531 P.2d State v. 111 Thus, commitment, upon time of De- trial. (1975) (defendant not entitled to proven presumably fendant could have if requested); even disposition instruction on mentally longer dangerous ill he was no or 254, 256, Peats, P.2d. and would have been entitled to release with- (1970) (same). 238, 240 period prosecutor’s in a of time. The short question of The decide the jury was to suggestion that Defendant be released would sanity, governing of the law propriety not the essentially immediately was under thus true insanity. disposition finding of after a Jordan, 80 Ariz. at the facts of case. Cf therefore, questions, raised (statements prosecutor’s unfairly at P.2d and, once irrelevant as was at de- issue that no implied possibility that there was above, cited many of the cases acquittal). noted taining after an danger longer himself in effect at the The version A.R.S. 13-3994 amended, provided for has been of the homicide automatic This since time others. statute fifty up days longer a hear- among period without things, commitment ing allowing, other long defendant was term detention if the hearing. without a detention convincing prove evidence unable to clear

prejudicial. say experi- disposition must issue of to the attention of the prosecutor enced have known should better prejudicial, is both error and we will remarks, Makal, than to such and his make actions prejudice. assume See 452; Jordan, seem bring prejudicial almost calculated to 455 P.2d at 80 Ariz. at 681; jury. and irrelevant matters before His Evalt v. United see also (9th Cir.1966) (similar jeopardized proceedings. States, conduct F.2d 534 argument improper prejudicial); not, however, doWe reverse convic Modesto, 59 Cal. People v. 66 Cal.2d merely punish prosecutor’s tions mis (same) (1967) cert. Rptr. 427 P.2d 788 deeds nor deter future misconduct. State denied, 389 U.S. S.Ct. Valdez, (1967). Thus, we turn L.Ed.2d 608 now (1989); 149, Skinner, 135, v. State 110 Ariz. error, question the of and whether the result 880, (1973). Rather, although 515 894 P.2d ing prejudice, was so as to rise to the serious the undeniably conduct was we improper, level of fundamental error. look first determine ac whether counsel’s likely tions reasonably were to have affected any prejudice The state that verdict, jury’s the thereby denying the defen engendered by raising prosecutor the the Atwood, dant a fair trial. State v. 171 Ariz. subject mitigated by was the court’s standard 576, 606, 593, (1992); 832 P.2d 623 v. State jurors they to the instruction that were not Dumaine, 392, 400, 1184, 162 Ariz. 783 P.2d punishment deciding to consider when De (1989). 1192 guilt or We fendant’s innocence. also note jury that the court instructed the that state first We note that Defendant did not ob- of part ments of counsel are not the evidence ject colloquy prosecutor to the the between disregard questions and to and answers when expert and the witness the when matter was objection is sustained. first raised. This differs from several of the above, Makal, Wilcynski, cases cited such as argument rests on We believe this sheer Purcell, suggestion and in which the was speculation. stock The court’s instructions either invited error or was introduced over before days were delivered some and after objection. Even in it appears Jordan that an prosecutor’s prejudicial questions the oc- objection may have been made to the com- course, possible, curred. It of that some because, regarding ments disposition al- jurors able to the stock were connect instruc- though opinion the not does state whether examination, tions to incident under but objected prosecutor’s the defendant is, view, they just it possible our as questions, the prosecuto- court discussed It did not make that connection. would have rial misconduct issue but refused to consider different, course, been if the court much another issue due to defendant’s failure to specific given had at the time instruction 199, object at trial. 80 at Ariz. at 294 P.2d See, up. v. e.g., the issue came United States 681. (9th Cir.1974) Greiser, 1295, F.2d 1298 502 (error part by immediate cured instruction case, In present Clark, punishment); not to consider objection made no until ques after several (error part at P.2d cured in 517 at 1240 answers, tions objected and on then ignore improper immediate instruction to ground of “asked and answered.” This sustained, objection because objection eventually sustained. Whether evidence).5 basis in In this it had no se, represented pro or a defendant’s failure case, however, simply agree cannot Cook, object constitutes a waiver error. instructions, any these unconnected in stock 741; P.2d State way by chronology to the inci- or reference Scott, Ariz. dent, any mitigating effect. turn, then, questions must to the factors, however, prejudice and fundamental error. There several Given are other cases, previous our holding prejudice. bringing the did tend diminish purposes emphasized prejudice merely prose- We assume for the of this case that an mitigated improper instruction have immediate would cutor’s insinuation. First, objects inappropri- on object fails to and then were favorable to the witness’ answers grounds, and does not ate the issue is waived the witness refuted the Defendant because fundamen- require permit absent The contin reversal prosecutor’s statements. witness Vickers, Ariz. even in face of tal error. State v. ued to maintain his denial (1981) (raising one prosecutor’s repeated assertions. 633 P.2d Cf. another preserve People objection at trial does not Ferguson, 191 A.D.2d (1993) er- objection (finding signifi appeal unless fundamental N.Y.S.2d it a ror) Long, 119 (quoting cant State prosecutor’s reason reversal refuted). (1978)). suggestion specifically was never objection would Here, questions, timely proper prosecutor’s it was the answers, prevent some truly prejudi the witness’ that were allowed remarks, the line put an end to precise cial. most answer the witness cogently questioning, promptly gave jury and to informed that Defendant would dispo- ignore the issue necessarily go guilty on a not instruct the free verdict Wigmore, very generally him sition. “may because the court well commit See Evidence (errors (Tiller’s 1983) should rev. Hospital at 793 treatment.” time) practicable at the earliest be corrected Second, although quite it under is true that A. (citing Dodge, 80 N.H. Tuttle jurors might facts case have the of this the (1922)). yet, the could Better that Defendant have been concerned would jury provisions of the of have the .informed time of commit- been found sane the such is thus for A.R.S. 13-3994. Our- search free, ment set it is also true that even fundamental error. raised, subject the not been this concern probably jurors’ would have been the be funda Error is considered to is, simply put, problem minds. It a for de- goes the of the mental it foundation when lawyers temporary insanity fense in most a essential from defendant a takes where, larger problem It cases. is an even defense, it magnitude the of such that is bench, repre- in the as case at the defendant possible cannot said it is for the defendant be trial, ju- demonstrating sents himself at Bible, 175 Ariz. at to have had a fair trial. very thought processes, rors his rational case, although 1175. the that later likelihood he will convince oth- one, a hóld that the close we longer up. ers that he should no be locked to the level prosecutor’s conduct did rise this, Given all must concede prejudice of fundamental error. Whatever that, prosecutor’s questions subject raised mitigat questioning produced this line of was irrelevant, technically although proba- would brevity, by by protective the witness’ ed its bly in even have been an issue room answers, by inject issue the fact if never mentioned at trial.6 undoubtedly have ed one that would was jurors’ minds because been on the Nevertheless, arewe concerned that nature of defense. prosecutor’s questions may caused that the erro- beyond we are convinced prejudice to Defendant that which disposition of issue of did present. injection neous otherwise been After would have all, that the serious harm Defendant’s case. the state claims in most cases cause killed dispute There sentencing was issue is both irrelevant sanity, issue was hardly its can the victim. prejudicial interests. It insanity was not alleged evidence position in and Defendant’s take the cases opposite However, expert Defendant’s witness insanity. persuasive. defendant temporary if a error, merely prejudicial regard not be fundamental error, 6. Our comments should jury's fact holding prosecutor’s awareness of the and the construed as that the state- degree might jurors affects the be released harmless because ments were somehow prejudice defendant. might be which the comments are often aware that a defendant set Rather, insanity. must considered in combination acquitted This in turn free if reason of present, holdings such as fact with other factors our that such state- we reaffirm earlier helpful, answers were highly prejudicial. that the witness’ improper this case ments are However, to Defendant. present rather than harmful search in the case is for our insanity diagnosis (1991); Estes, based his primarily on a S.W.2d theory developed by novel single psycholo- (same). (Tenn.Cr.App.1983) We conclude gist published in an article7 jour- in a small event, therefore that which oc- this brief nal, supported by which relatively few during curred a trial in which there was little studies, case most of which differed funda- persuasive insanity evidence and which mentally from Defendant’s case. mitigated by favorable witness testimo- ny, did not amount to fundamental error.

The state effectively demonstrated these presented weaknesses and testimony coaching Prosecutor’s insinuation experts two that Defendant was not insane at the time of the probably crimes and was During the same cross-examination of Dr. malingering. experts These also testified McMahon, prosecutor questions asked psychotic that the trigger syndrome theory implying advisory counsel coached De- generally was not accepted, and that even if feign symptoms fendant to of epilepsy:9 were, it theory.8 did not fit the Q. Now temporal epi- lets talk about lobe During sentencing process the trial lepsy. judge, who saw and heard the actual testimo A. Yes. ny, specifically stated that “this court views Q. you What evidence do have of that insanity] [the defense as not credible.” existing in this case? Thus, this case contrasts sharply with other burning sickening A. The smell “ol- [an reviewing cases in which strong courts found factory allegedly per- hallucination” evidence temporary of a insanity, defendant’s by defendant] ceived is a classic sort of a requiring reversal on the basis of remarks sign of seizure. prosecutor similar to those made present See, Makal, e.g., the case. Q. Okay. you He could have told that 478, at 455 P.2d at 452. up, and made that couldn’t he? possibility. A. That’s a This was not a close case in which the improper questions might tipped Q. has, you. advisory Thank He he has scales and deprived Defendant of a fair trial. counsel in this doesn’t he? Prom our review of the record it is evident A. Yes. that weight against the evidence De Q. you you As far as know—I mean know fendant would have resulted in his conviction counsel], [advisory you Mr. Avilla do with or without these remarks. Mott v. Cf. not? State, 145, 166, 94 Okl.Crim. 232 P.2d 179 A. Yes. (App.1951) (finding similar remarks to be Q. you Have him worked with before? error); McDonald, harmless 184 A. We did one other case before. 290, (1937) 365, (same), S.C. 192 S.E. 370-71 grounds know, overruled on by Q. other Okay. you State v. Tor far as Mr. Avilla As rence, 45, 315, 305 S.C. consulting S.E.2d 328 n. 5 has been with Mr. Cornell Testimony study subjects, although they experience indicated that at the time of trial did not olfactory one other article had been written about this hallucinations. The reverse was true in studies, theory, by present it was the same author. Defen- In of the case case. most dispute against trig- dant did person this contention. We base violence occurred who it, analysis solely testimony gered our on the trial whereas in this case the father was express opinion theory’s supposedly "trigger,” daughter on the actual scienti- but the validity. fic chased down and killed after the father was initially Finally, in shot. most of the case stud- ies, illness, history there was a of severe mental testimony 8. There was that crimes the case present which was not true case. motiveless, studies were whereas Defendant had apparent motive—anger girlfriend’s over his relationship jealousy diagnosis termination of their 9. Dr. McMahon’s was that Defendant relationship her boyfriend. likely psychotic trigger with her new In most suffered from reac- studies, eight subject possibility seven of syndrome, although case re- tion there was well, membered the events whereas Defendant were instead that Defendant’s actions caused nothing temporal epilepsy episodic claimed to remember about the shoot- discontrol lobe or ing. among syndrome. observed Hallucination was the case (1957); see also 287, 160, 285, cor- 312 P.2d something of since December 68, 71, 623 P.2d Ballantyne, 128 State rect? A A No. Q. Mr. Cornell: in the case. psychological principles? tion. So or no. And then calls for Sometime, yeah, Is Mr. Court: ‡ hearsay. Avilla you Well, Objection, can answer it $ it somewhat familiar with lay before was can some more founda- ifc Your Honor. be answered I ^[*] yes involved jfc yes no. It Ariz.App. cert. the record the comments advisory counsel’s disapprove of such L.Ed.2d 113 dence to back enced only in this kind of denied, prosecutor, reversal, (Ct.App.1981); (1969). 396 U.S. up his accusation. unfairly cast see, misconduct can and we 448 P.2d integrity. We e.g., prosecutor We find conduct Holsinger, 124 Ariz. 90 S.Ct. remind the no indication by an aspersions on Zappia, result not addition, any evi strongly experi (1968), bar Q. psychological He is not familiar with can also have at but level, you is that what principles at this consequences.10 personal serious telling are us? we are concerned A Not this level. conduct, discussed in and the conduct objection further was made. No section, an attitude previous evinced break, however, ad- After weekend advantage he could take prosecutor court rbr visory permission asked the representing that Defendant was of the fact testify so he could to rebut withdraw acting in It is true that a defendant himself. insinuation that he had coached Defendant subject same rules propria persona is feign having olfactory had an hallucination Faretta, n. attorney. 422 U.S. at 834 as an killing. agreed after the The court that this 46; n. United States 95 S.Ct. at insinuation, prosecutor’s was the intended (9th Cir.1984), Merrill, 746 F.2d prosecutor deny and the did not this. How- . denied, U.S. 105 S.Ct. cert. ever, advisory the court refused to allow however, true, It is also L.Ed.2d withdraw, ruling prosecu- counsel to that the a defendant’s invocation of making be precluded tor would instead from signal playtime self-representation does not coaching argument jury. the to the duty have a to prosecutors. Prosecutors request court also denied Defendant’s for a They have do more than convict defendants. argues mistrial. Defendant now that these get a fair trial. duty to see that defendants pro- him a fair trial and due events denied See, Romley Superior e.g., rel. State ex guaranteed by cess of law as the United 445, 232, 241, Court, 454 172 Ariz. States and Arizona Constitutions. (Lankford, J., concurring); (Ct.App.1992) the agree with the trial court that We (Me.1993); Steen, 146, 623 A.2d 148 State v. undoubtedly ques- prosecutor intended these Gaudette, (Me.1981); 431 A.2d 34 State v. jurors’ idea place tions to in the mind the 3.8, Ariz.R.Sup.Ct. ER comment see also advisory Defendant on that counsel coached (“a responsibility of a has the prosecutor symptom temporal lobe feign to this how simply that of an justice and not minister of that a epilepsy. repeatedly held advocate”). prejudicial insinu- prosecutor must not make However, again are faced with we being prepared prove them.

ations without in a object 18, 21, failed P.2d the fact that Holsinger, 124 Ariz. 601 State v. so, (1979); Williams, timely Had he done proper manner. 111 1057 (1975); objection, the 511, 515, could have sustained P.2d 1150 court Ariz. matter, ignore the Winkle, jurors to 106 Ariz. admonished State v. Van inference of (1970); that them Stago, and instructed P.2d Valdez, unreported. Ariz. go punish again er conduct to that we do not 10. We note will This matter be P.2d at 318. lawyer. public of the misdeeds of its because However, reported Bar. seriously improp- to the State we also do not allow ... use coaching had no factual basis. Failure that he the information could object request precludes you remediation If want promote insanity his defense. point from on arguing appeal, respect, jury me to admonish the in some the error was unless fundamental. is no evi- as as I am concerned there far to strike. There that dence is a We find that the misconduct in this given by but I posed, was think the answer instance did not rise to the level of funda you. was favorable to I’m not the doctor coaching charge mental error. The was you to let a witness. going called as by implication, made was no there evidence it, repeatedly and the witness refuted the In addition to the reasons possibility. brought When the matter appears he gave, it from the record that was later, judge’s days attention a few delay throughout with this trial concerned prosecutor argue directed the of counsel change worried that a again, point prosecutor obeyed and the delay. trial court result in further A would instruction. conduct managing has discretion in broad Finally, prosecutor’s we note that the im- trial, exercise duty properly of a and has a questions proper did not tend to undermine Johnson, United that discretion. States primary Defendant’s on defense based (9th Cir.1980); Supe Pool v. 618 F.2d Rather, psychotic trigger theory. reaction Court, 103-04, rior they only theory tended to discredit that (1984). agree Although 266-67 we killing occurred because important expeditiously, to conduct trials it is epileptic seizure. Yet Defendant never judge’s point decision on this would the trial presented explain evidence to to the how gone if the issue had be debatable compli- he could have committed a series heart of defense. cated, during an epileptic coordinated actions Although express opinion seizure.11 is not au attorney A defendant’s question, on we conclude the lack of as a wit tomatically precluded serving from epilepsy evidence whether occurred and ness, especially attorney if the to with seeks might how it have exonerated Defendant consents, the client the case draw and as was weighs against amounting misconduct Caldwell, See State v. here. hold, therefore, fundamental error. We (1977); also, 471-72, 573 P.2d see 871-72 these comments did not fundamen- constitute Annotation, Barbre, generally, Erwin S. De rights error tal or violate Defendant’s to due Attorney Client in as Witness his fense process. Case, State Criminal A.L.R.3D Defendant also the trial court attorney A court’s refusal to allow an advisory allowing erred testify on a defendant’s to withdraw testify coaching withdraw rebut constitu may be considered error of behalf allegations. In response advisory coun- Goldstein, to 130 People tional dimensions. v. withdraw, request sel’s to court stated: the 211 Cal.Rptr. 182 Cal.App.3d Moreover, said, (1982). case, Defendant light As I in this my admonition to Mr. counsel, not may argue coaching only advisory Scull to call attempted [that defending the closing argument], prob- attorney actively who was I don’t see a an circumstances, might it lem. There is in the record Under these no evidence case. preferable to have suggests you which at all that’s what for the court that have been did, is, testify. again, provide counsel to that Mr. Cornell with allowed addition, driving was expert exami- In Defendant 11. Defendant’s admitted cross the crimes. during epileptic apparently pursuit nation that violent acts are rare. He went on to seizures an coordinated a vehicle however, Moreover, explain, that just shootings. before the the victims they are more common such seizures. between epilep- the crimes did occur two even if between Nevertheless, presented Defendant no evidence seizures, expert explained the never to the tic epileptic that he had suffered an seizure before why jury Defendant should not be held accounta- burning the attack. The he described did smell place during time when acts that took a ble for not occur until after the attack. There was no having a seizure. Defendant memory preceding time indication of loss for the above, However, the court should Defen that as discussed Defendant intem- anyone might make have realized present enough evi ultimately dant failed conviction perate capital after a comments epilepsy defense. support dence proba- should have ordered and therefore coaching only inference went to the al Defendant, speak try with tion officer leged testimony Rebuttal epilepsy. down, if there time to cool to see he had after surely jury therefore because not crucial The court’s leniency. for was some basis acquitted would not have Defendant on contends, so, violated to do Defendant failure basis, regardless of whether Defendant had 26.4, pre- requires a which Ariz.R.Crim.P. been Defendant later coached. report. preparation of a sentence reopened matter on examination redirect testimony advisory and elicited of a second Although extending enough psychology did not about know appropriate in may fer to a defendant Thus, point. coach Defendant on cases, that failure agree we cannot some proffered testimony could not have affected requires to be do case the sentence so in this verdict, jury’s its exclusion was A defendant has a constitutional vacated. beyond harmless a reasonable State doubt. right for speak probation with officer not to a 450, 453, McVay, Kerekes, 138 sentencing purposes. State v. (1980). (Ct.App Ariz. P.2d

.1983). explicitly invoked that it, though he Equal right protection challenge and never retracted even F. Ari- with the penalty filed several other motions appeal death statute later zona’s Furthermore, Ariz.R.Crim.P. under court. Defendant contends Arizona’s auto- 26.4(a) 26.3(a) may entirely a cases, matic appeal penalty statute death report presentence waive 13-4031, equal protec- A.R.S. violates the here was less What occurred prepared. provisions tion Ari-' of the United States and offi probation drastic than because zona Constitutions because defendants con- material avail report cer with the prepared may capital appeal victed of crimes addition, judge already knew a able. court, having rather than levels of two great background about Defendant’s deal appeal poten- as other criminal defendants testimony. appropriate This is an from trial tially recently rejected do. an identical We sentencing information. source argument. Ramirez, See State Mincey, P.2d see denied, (1981), cert. U.S. S.Ct. no need to revisit the issue. (1982). Moreover, De 71 L.Ed.2d 871 attorney12 argued on his behalf at fendant’s sentencing hearing, judge fur giving the SENTENCING ISSUES to Defendant. perspective ther favorable probation A. failure to order Court’s Finally, there is no that Defen- indication try officer to to meet with anything proba- dant would have said prepare presentence report already tion officer that court did not appellate counsel In fact Defendant’s know. read, After the verdicts were un-likely “it is that he would admits that [sic] declared, Honor, “Your I’d like probation officer into writ- have charmed reflect I do to meet record to not wish ing presentence report.” Defen- glowing my presentence reporter.” Because of with any prejudice thus failed show dant has statement, probation assigned the officer regard. attempt to meet with or case did open expressly pre-sentence The re declared interview Defendant. meet the unwilling with port impose that the the court that recommended court officer, probation and never withdrew penalty. death during advisory attorney. right as his 12. Defendant invoked to counsel sentencing appointed process, and the court might days killing. declaration. This At the time been mistake a few before the case, part, compliance sentencing present on his but the court’s with charge his wish was not error. had been convicted on that assault under imprisonment and sentenced to life challenge B. Constitutional to Arizona’s 13-604.02(A). case, § present A.R.S. In the penalty grounds death statute on the conviction as a the trial court relied on that it allows the court to conceal pursuant statutory aggravating factor mitigating evidence 13-703(F)(1).13 However, § con- A.R.S. subsequently appeal. reversed on viction was 13-703(C) § requires sentencing A.R.S. Cornell, State v. 173 Ariz. P.2d 1094 court to disclose the defendant all informa- (Ct.App.1992). has re- now been pre-sentence report except tion in the “such tried and convicted of misdemeanor disorder- required material as the court determines is conduct, ly a lesser included offense. He protection to be withheld for the of human therefore, submits, his case must be life.” Defendant makes no “[i]t resentencing. The ar- remanded state person endangering sense to kill one to avoid gues longer if that even the conviction can least, very the life of another.” At the De- aggravating be considered as an circum- asserts, fendant courts required should be stance, reweigh this court should itself seal such information file for appellate it remaining factors and affirm the death sen- review. tence. provides The statute also the court may not use determining such information in First, agree with Defendant that statutory aggravating

whether the or miti- prior requires reversal of conviction gating objects factors exist. Defendant reweighed. death State ex sentence be Cf. application provision mitigating of this Court, Superior rel. Collins v. 157 Ariz. effectively prevents factors because it (1988) (constitutionally 754 P.2d 1346 infirm judge considering from factors that cannot charge conviction cannot be used to enhance disclosed, thereby depriving the defendant sentencing proceedings); or in later rights process of his to due compulsory Steelman, (same), 612 P.2d 475 process justice” “open and of the denied, cert. 449 U.S. 101 S.Ct. Const, guaranteed by § art. calls L.Ed.2d Arizona’s statute rejected argument This court has a similar conviction, for a the court conviction Gillies, in State v. Therefore, relied on has been reversed. 1007, 1015(1983), and declined to recon Bible, remaining reweighed. factors must be Ramirez, sider the issue in 178 Ariz. at 175 Ariz. at 858 P.2d at 1209. spe 871 P.2d at 248. the court’s present specifically cial verdict in the case us, course, brings This presentence states: “All material in the re reweigh. who should port was disclosed to the defendant and to judge aggravating found two circumstances: prosecutor.” rights Defendant’s were prior conviction and the fact that Defen 127-28, therefore not violated. Id. at “knowingly grave created a dant risk of P.2d at 248-49. person persons death to another or in addi 13—703(F)(3). § tion to the victim.” AR.S. C. Reversal of the conviction that judge mitigating The trial found as circum aggravating trial court found to be an age (twenty-five years) stances: Defendant’s factor presented and his remorse. We are thus separate charged aggrava In a a case in which one of the two Defendant was with the trial aggravated ting with assault for the altercation circumstances found longer be considered and in which the place Daphne’s boyfriend that took with new can no 13—703(F)(1) imprisonment provides Arizona law a sentence of life 13. A.R.S. that it is an aggravating factor if: imposable. death was The defendant been convicted of another has offense in States for which under the United to have adviso- hearing and asked judge sentencing more than miti- trial found de minimis reweighing informed gating ry argue circumstances. Where is for him. When counsel necessary, representation we have stated: but that he have could

Therefore, proceed he would not hearing the would and those cases the trial in which again, Defendant be to waive counsel allowed sentencing process has erred in the ultimately argued chose to mitigating with the court but and there is of more evidence represented by Counsel then weight, than de be counsel. minimis we will remand unless the state that sentence stated: concedes preferable

reduction is to remand. being point appointed and I am the at Bible, hearing presentence proceed 175 Ariz. at at 1212. asked a We continuing validity the issue in our involving important reaffirm of this hold- the most ing. society imposition ... today, namely I nonimposition penalty. am of a death The state has made no in this concession having being the to do so without asked preferable case that sentence reduction is witnesses, op- opportunity subpoena cases, however, remand. other state my wit- portunity to ask office to retain has discussed the trauma caused to victims psychological physical nesses a to do by resentencing. frankly remand has for It I examination of Mr. Cornell. commendably told this court these circum- opportunity had an under many of those cases in which the court is Cornell, study a life of Mr. stances to do unable to affirm the death sentence of for subpoena nor to on his behalf witnesses lack of sufficient record or because of doubt testify this appear before Court. here accuracy sentencing as to the inherent proceedings question and in which the ‡ ‡ ‡ S}5 $ Jfc close, imposed sentence to is reduction circumstances, forcing me these Under consequent finality and its preferable are unfair, go simply is unfair forward Obviously remand. this means reduction will Cornell, me, perhaps unfair to Mr. occur in some cases in which remand would society. to our importantly, more unfair possibly reimposition have resulted in of the society penal- a death imposes Before our sentence, by death appeal, followed a new issue, ty, get we to that soci- before close post-conviction proceedings, series and ul- every ety that we look at facet demands timately system. resort to the federal court and ensure that the death individual believe that this one that case is fits penalty penalty appropriate is an for First, category. note within we that a crime for the individual committed and child survives the De- relationship between it. if into who committed And we rush fendant and The Daphne. record indicates this, doing are judgment like I think being child is raised Daphne’s family. system, as well as our harm both to fact, pun- Given we believe the issue of day society. sixty I for a And would ask ishment settled quickly finally. should be continuance. Second, possible we do not believe it is for 23-24, R.T. Feb. the present this court affirm on state of request court denied counsel’s aggrava- record. has Not one of continuance, reasoning that Defendant out, ting factors ruled there is an been but prepare months to two one-half additional circumstance that raises sub- court, Defendant, hearing and it stantial in our whether the minds unpre- put position in the who counsel mitigating record contains all of the evidence hearing. paredness for the presented that could or should have been the court. nor neither We fault earlier, regard. Howev- fraught judge for his actions

This as noted with er, reweigh cannot problems we must conclude that we created Defendant’s decision to any contains invoking that the record represent After and wav- with confidence himself. mitigating and circum- during evidence ing his to counsel several times all trial, investigation and changed again stances that a reasonable mind preparation might have enabled counsel to the rec- convictions. We have also examined present to the might court and that properly pursu- in error ord this case for fundamental part have been of the record.14 § ant to found none. A.R.S. 13-4035 and have sentence, however, Defendant’s death cannot

Because of the need to reweigh due aggravating failure stand of one because it was based on an aggravating of the circum- stances, given presence mitigating longer Accordingly, factor that no exists. we evi- dence found the trial court and the bal- affirm all and sen- of Defendant’s convictions ancing that is therefore required, given sentence, except tences which the death we impossibility of concluding that the rec- imprisonment possibili- reduce to life without be, ord before complete us is as as it should ty parole twenty-five years, for to be Bible, this court cannot affirm. Under consecutively served to all other sentences would therefore remand for resentencing. imposed. However, light in previously the state’s expressed position prompt and the need for MOELLER, V.C.J., and CORCORAN and resolution and finality because peculiar of the ZLAKET, JJ., concur. case, circumstances of this we believe the best resolution is reduction of the sentence.15 MARTONE, Justice, concurring part in We therefore reduce the sentence dissenting part. death to a imprisonment sentence of life I affirming concur in the judgment of con- possibility without parole for twenty-five viction, agree hybrid but do not repre- years. The life sentence is to be served permitted by sentation is our rules. I dis- consecutively. to each of the im sentences sent from the court’s reduction of sentence posed on Defendant pursuant to his convic giving without first judge oppor- tions in his earlier cases as well as to the tunity reweigh. sentences the trial imposed court in this which twenty-one years are attempted

murder,16 fifteen years for aggravated as Hybrid Representation I. sault, and years burglary. fifteen agree I do not that a trial has

DISPOSITION hybrid discretion representation. to allow Ante, We find that none of the issues 878 P.2d at 1363. The court raises appeal warrants reversal of his hybrid concedes that there is no 14. As recently Justice O’Connor leniency, remarked: supreme tial to warrant court impose pursuant shall a life sentence to section Capital sentencing proceedings must of course 13-703, subsection A. satisfy Clause, the dictates of the Due Process Although arguably support this statute would our ... process and one of the hallmarks of due resentencing, decision remand for we do adversary system ability our is the defendant’s (1) rely on it for two reasons: there has been against to meet the State's case him. applicability no determination of its to cases — Carolina, U.S.-,-, Simmons v. South pending when it was enacted and went into (1994) 114 S.Ct. 129 L.Ed.2d 133 effect; (2) raised, briefed, it was not (O’Connor, (internal concurring) quote J. marks argued by parties. Accordingly, we do not omitted). and citations any questions address of the statute’s retroactivi- ty, applicability, constitutionality. construction or filed, Shortly opinion before newly- statute, 13-703.01, enacted A.R.S. became ef- sentencing judge 16. We note that the cited De- provides part: fective. It in relevant prior aggravated fendant’s assault conviction as supreme B. If the court enhancing determines that an one reason for Defendant's sentence regarding finding aggra- error was made attempted for the murder conviction. As dis- mitigation, above, supreme vation or court shall cussed Defendant, however, this conviction has been reversed. independently mitigation determine if alleged has supreme sufficiently court finds is substantial sentence must be vacated for that reason. Be- leniency light existing to warrant aggravation. cause the sentence statutorily is within the allow- supreme If the court finds that attempted able maximum for the crime of mur- mitigation sufficiently is not substantial to der with intentional physical infliction of serious leniency, victim, supreme warrant injury court shall af- we do not consider this to be firm the supreme death sentence. If the court fundamental error and thus do not review the mitigation sufficiently finds that the substan- issue absent a claim of error Defendant. sentenced I am of the view that there tried this case. He is the one who representation. only one not. If to death. He is right, either is a or there is there is a the defendant hybrid enough then the with this record right representation, to trial familiar sen- the death power just to allow it as he has to decide court has defendant whether notwithstanding power represent reimposed to allow a defendant to tence should be himself, right aggravating factor. or invoke his to counsel. And the absence of one judge’s power the trial exercise of that is notes, has not con- the state As the court subject right if to review. But there is no preferable. is that sentence reduction ceded hybrid representation, judge then the trial Instead, reduces the arbitrarily court power By saying has no to allow it. that a State sentence. As I have noted before. judge trial does have the discretion to allow Stuard, P.2d it, very right say we create the that we does (1993) (Martone, J., dissenting), “we have an put not exist. will be position sentence obligation to ensure that the death reviewing judge’s the trial exercise of the imposed arbitrary is in an and freakish power hybrid repre- to allow or not to allow arbitrary impose the death way.” It is sentation. If we should ever conclude that a others, then, like on a record sentence judge abused his or her discretion in this, of the death sen- relieve denying hybrid representation, we will giving judge an tence first the trial without acknowledged right the existence of a reweigh. I opportunity properly therefore hybrid representation. But we have held respectfully I would remand to the dissent. Thus, right. reject there is no such I as sentencing judge reweighing. logic a matter of the distinction the court right draws between the absence of a

hybrid representation any and the absence

prohibition against it.

Legal representation in criminal cases

governed by Rule Ariz.R.Crim.P. It occu- pies the field. Rule right 6.1 describes the P.2d 1375 6.1(c) acknowledges counsel. Rule a defen- PARADISE, INC., an Arizona TURF right right dant’s to waive the to counsel. It Plaintiff, corporation, Counter provides then that when a defendant waives defendant-Appellee, counsel, right may his or her the court attorney appoint an to advise him or her dining any stage proceedings. Rule COUNTY, political MARICOPA subdivi 6.1(e) allows a defendant withdraw Arizona; sion of the and the right waiver of the to counsel. Revenue, Department Arizona Defen It is thus clear that a defendant when dants, Counterclaimants-Appellants. counsel, waives the our rule No. 1 CA-TX 93-0006. appoint advisory a court to counsel. allows ground. There is no middle When Arizona, Appeals Court client, represents a the client has no authori- 1, Department T. Division ty represent today’s himself. I fear deci- sion breed confusion and mischief. will July 1994. July Corrected As Reweighing Remand for

II. notes, ante,

As the court aggravating when an circumstance is when, here, reweighing

knocked out and as

on the record is undesirable because there possibility

exists the of a more substantive

mitigation hearing, we remand to the trial reweighing. He is the one who

Case Details

Case Name: State v. Cornell

Court Name: Arizona Supreme Court

Date Published: Aug 2, 1994

Citation: 878 P.2d 1352

Docket Number: CR-91-0072-AP

Court Abbreviation: Ariz.