State v. Benally

1

The State of Arizona, Appellee, v. Bryan Keith Benally, Appellant.

No. 2 CA-CR 2023-0047

Court of Appeals of Arizona, Second Division

July 31, 2024

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Cochise County No. CR202100015 The Honorable Timothy B. Dickerson, Judge.

Kristin K. Mayes, Arizona Attorney General Alice M. Jones Deputy Solicitor General/Section Chief of Criminal Appeals By Amy M. Thorson, Assistant Attorney General, Tucson Counsel for Appellee.

Cochise County Office of the Legal Advocate, Bisbee By Xochitl Orozco Counsel for Appellant.

Presiding Judge O'Neil authored the decision of the Court, in which Judge Vasquez and Judge Kelly concurred.

MEMORANDUM DECISION

O'NEIL, PRESIDING JUDGE.

¶1 Bryan Benally challenges his convictions for attempted premeditated first-degree murder, armed robbery, and aggravated assault. Benally asserts the trial court abused its discretion and violated his confrontation rights by limiting his use of certain terms closely related to premeditation when cross-examining witnesses at trial, where premeditation was a central and contested issue. He also asserts the court erred by allowing the jury to see him wearing handcuffs before the aggravation phase of the trial, by allowing the jury to find an aggravating factor without defining its terms, and by imposing consecutive sentences in a manner that he argues amounts to double punishment. We affirm.

Background

¶2 We view the facts in the light most favorable to sustaining the jury's verdicts and resolve all reasonable inferences against Benally. See State v. Fierro, 254 Ariz. 35, ¶ 2 (2022). Benally and J.S. were hired to build a fence in a remote location. One evening, they drove in J.S.'s car to a campground, parked, and then hiked for more than two hours to the job site where they planned to camp for the evening. During the hike, Benally started talking with people who were not there. He continued this behavior after they had reached the campsite. Then, without provocation, he started punching J.S. in the face. J.S. defended himself until Benally calmed down and made a phone call. J.S. texted his sister and asked her to "please be praying" for him because something "crazy" was happening.

¶3 Benally then looked at J.S. and said, "You better call your mom and tell her that you love her." J.S. turned around to leave. Benally said, "Now's the time." Then he tackled J.S. face down to the ground, pulled J.S.'s knife from his hip, and started stabbing him numerous times in the back and shoulder. Benally then turned J.S. over, sat on his groin, and stabbed him repeatedly in the chest. J.S. "played dead" while Benally was stabbing him, and Benally eventually stopped, got up, and took J.S.'s car keys and phone from his pockets. Seeing an opportunity to escape, J.S. grabbed his flashlight and started running down the mountain. Benally saw J.S. running away and said, "Oh, you're alive." He started throwing rocks at J.S. while chasing him down the mountain. J.S. was having a hard time breathing and pressed his shirt against a chest wound to slow the bleeding. Finally, he made it back to the campground parking lot and found other campers to ask for help.

¶4 J.S. was transported to a hospital. He had suffered three chest wounds: one "in the center of the chest, right over the heart and the great vessels," one "on the left side of the chest . . . directly over the lung," and one "in close proximity to the heart." The wounds caused a pneumothorax and a hemothorax, meaning his lung was punctured and fluid had entered his chest cavity. Both are life-threatening conditions. He also had lacerations on his back and arm, one of which could cause nerve or blood vessel damage. J.S. survived but was short of breath for about two months, could not work, and has scars on his back and chest.

¶5 A jury found Benally guilty of attempted premeditated first- degree murder (count one), armed robbery (count two), aggravated assault causing serious physical injury (count three), and eight counts of aggravated assault using a deadly weapon or dangerous instrument (counts four through eleven). See A.R.S. §§ 13-1001(A), 13-1105(A)(1), 13-1204(A)(1), (2), 13-1904(A). It found each offense dangerous. See A.R.S. § 13-105(13). During the aggravation phase, the jury found all four alleged aggravating factors: (1) inflicting serious physical injury; (2) using a deadly weapon or dangerous instrument while committing the crime; (3) committing the offense in an especially heinous, cruel, or depraved manner; and (4) causing physical, emotional, or financial harm. See A.R.S. § 13-701(D)(1), (2), (5), (9).

¶6 The trial court sentenced Benally to consecutive prison terms totaling fifty-seven years for counts one through three. For counts four through eleven, the court imposed 7.5-year prison terms that were concurrent with each other and with the fifteen-year prison term for count three. This appeal followed. We have jurisdiction. See A.R.S. §§ 12-120.21(A)(1), 13-4031, 13-4033(A).

Discussion

I. Limits on Cross-Examination

¶7 Benally argues the trial court violated his constitutional right to confront witnesses by precluding him from "questioning regarding premeditation." Assuming Benally sufficiently preserved any objection to the court's decision, however, he did not assert a violation of his right to confrontation. See State v. Lopez, 217 Ariz. 433, ¶ 4 (App. 2008) ("[A]n objection on one ground does not preserve the issue on another ground."); see also State v. Fulminante, 193 Ariz. 485, ¶ 64 (1999) ("An objection is sufficiently made if it provides the judge with an opportunity to provide a remedy."). Accordingly, we review for fundamental error but find no error, fundamental or otherwise. See State v. Escalante, 245 Ariz. 135, ¶ 12 (2018).

¶8 At trial, Benally asked one of the responding officers whether he had found "any evidence that Mr. Benally had planned" the attack. The officer said no. The next day however, the trial court instructed the parties not to "use the word premeditation" or related terms such as "deliberate" while questioning any remaining witnesses, including J.S. The court also instructed the parties that they should not ask any witness, "[D]id you see any evidence of planning?" It reasoned that premeditation is a legal issue for the jury to decide and that a "witness's understanding of premeditation" might not match the "legal instruction given to the jury." But the court clarified that it would allow "questions about what happened and how long it took and what led up to it, if anything." The parties could question witnesses about "legitimate objective observations that the witness could give" concerning facts from which the jury might infer premeditation.

¶9 Benally indicated that the "problem" with the trial court's limitation was that "reflection . . . is one part of the premeditation" and "[p]lanning is sometimes part of that," including steps such as "buying gloves," "buying duct tape," and "facts like that." The court advised Benally that he could ask questions about such facts without asking for "a legal conclusion or speculation" about whether they amounted to "planning" or "premeditation."

¶10 A trial court has significant discretion to control witness examinations to ensure they aid in developing the truth. Ariz. R. Evid. 611(a); State ex rel. Montgomery v. Padilla, 239 Ariz. 314, ¶ 13 (App. 2016) (trial court has "considerable discretion to determine what procedures are appropriate in a particular case"); State v. Mendez, 2 Ariz.App. 77, 79 (1965) ("[T]he trial judge is not a mere moderator, but has active duties to perform without partiality to see that truth is developed ...."). This includes the discretion to limit cross-examination, which we ordinarily will not disturb absent an abuse of that discretion. State v. Moody, 208 Ariz. 424, ¶ 135 (2004). When these limits implicate the constitutional right to confront witnesses, however, we review them de novo. State v. Ellison, 213 Ariz. 116, ¶ 42 (2006); see also U.S. Const. amend. VI; Ariz. Const. art. II, § 24. Limits on cross-examination violate the confrontation right "only when they deny the opportunity to present 'information which bears on either the issues in the case or on the credibility of the witness.'" Moody, 208 Ariz. 424, ¶ 137 (quoting State v. Fleming, 117 Ariz. 122, 125 (1977)).

¶11 Benally argues the trial court's limitations "took away" his ability to cross-examine J.S. on an "essential element of the most serious charge" and impaired his ability to rebut the state's argument that Benally formed his plan to kill J.S. "after the punch and before the stabbing."^[1] But the limitations the court imposed did not prevent Benally from presenting information related to premeditation. During cross-examination, J.S. testified that he and Benally had never fought or argued before the attack and that the hike to the campsite was mostly silent. He said he had never felt threatened by Benally before the incident. He also said he had been surprised by the punch and the attack was "unexpected." When asked about the time between the punching and the stabbing, J.S. testified that he did not remember the exact length of time but it was enough to send a text message to his sister.

¶12 The trial court's limitation on Benally's cross-examination of J.S. did not prevent him from presenting any of the facts bearing on the reflection necessary for premeditation. See Moody, 208 Ariz. 424, ¶ 137. And Benally specifically asked J.S. about the time between the punching and the stabbing, a time period he asserts the state emphasized in its closing argument. Additionally, as described above, Benally was permitted...