State v. Garza

163 P.3d 1006

216 Ariz. 56

STATE of Arizona, Appellee, v. Ruben GARZA, Appellant.

No. CR-04-0343-AP.

Supreme Court of Arizona, En Banc.

June 29, 2007.

Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Capital Litigation Section, Patricia A. Nigro, Assistant Attorney General, Phoenix, Attorneys for the State of Arizona.

Richard D. Gierloff, Phoenix, Attorney for Ruben Garza.

OPINION

HURWITZ, Justice.

¶ 1 A jury convicted Ruben Garza of two counts of first degree murder. The jury then determined that Garza should be sentenced to life imprisonment for one murder and death for the other.

¶ 2 An automatic notice of appeal was filed pursuant to Arizona Rule of Criminal Procedure 31.2(b). This Court has jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and A.R.S. 13-4031 (2001).

I. FACTS AND PROCEDURAL BACKGROUND¹

A.

¶ 3 In September 1999, Ellen Franco moved into a two-bedroom house in Waddell occupied by Jennifer Farley and Farley's boyfriend, Lance Rush. Ellen had recently separated from her husband, Larry Franco.

¶ 4 At approximately 10:30 p.m. on December 1, 1999, Farley heard a knock at the door. Upon opening the door she saw a Hispanic male who was five feet nine or ten inches tall, about 180 to 200 pounds, and had bad acne. He had a large tattoo on his left arm. The visitor pointed at Ellen, who was by then standing behind Farley, and said, "I am here to see her." Ellen identified the visitor as "Ben," whom Farley understood to be Ellen's relative.²

¶ 5 Ellen went outside; Farley went to her bedroom and told Rush about the visitor. Farley then heard two gunshots. Rush and Farley scrambled to grab one of the guns they kept in their bedroom, and Farley took a pistol from her nightstand. By the time she removed the gun from its holster, the locked door to the bedroom had somehow been opened.

¶ 6 Rush, who had not been able to get one of the other firearms, motioned for Farley to stay in the room and went into the hallway. Farley heard a gunshot almost immediately thereafter and quickly hid in the bedroom closet. After entering the closet, she heard several more shots.

¶ 7 After waiting briefly, Farley came out of the bedroom closet. She saw Ellen lying face down in the living room in a pool of blood. After determining that Ellen was alive, Farley looked for Rush. She found him in the guest bedroom opposite their bedroom. He was conscious but bleeding. Farley dialed 911, and police and paramedics arrived within minutes. Rush was lucid and said, "Someone kicked the door and started shooting."

¶ 8 Ellen never regained consciousness and died at St. Joseph's Hospital shortly after the shooting. Rush died at John C. Lincoln Hospital approximately an hour after the shooting.

B.

¶ 9 Around 12:45 a.m. on December 2, Garza bought bandages, gauze, and hydrogen peroxide from a drugstore in west Phoenix. Later that morning, he was treated at Phoenix Baptist Hospital for a gunshot wound to his left arm. The hospital contacted Phoenix police. Garza told the responding officer that he was walking down the street when an unknown assailant drove by and shot him.

¶ 10 Maricopa County Sheriff's Office ("MCSO") detectives questioned Garza the next morning. Garza first claimed that he had been shot in a drive-by, but changed his story when told that he had been identified by Farley as the visitor to the Waddell house. He then stated that he had gone there to persuade Ellen to reconcile with Larry. Ellen came out and talked to him. When their conversation turned into an argument, Garza pulled out his gun and shot her. Garza said he then "blacked out" and was "in a daze." He told the detectives he did not remember seeing a man at the house, but that the woman who had originally answered the door charged at him with a knife and he shot at her. At some point someone shot at him; he felt a "sting" in his arm and returned fire.

¶ 11 Garza was arrested and on December 2 made two phone calls from jail to Laurel Thompson. In the first conversation, Garza said he was "going to be here [in jail] for a couple years" and that he "did to someone else" what the two had discussed doing to a boyfriend who had assaulted Thompson.

¶ 12 In the second conversation, Thompson told Garza that he was on every newscast. Thompson asked Garza how he got caught; he told her, "I got shot." Garza questioned Thompson about the news coverage and their friends' reaction to it. Garza asked her how many victims were being reported, and she said that he had killed two people. Garza told Thompson that he did not remember whom he shot, and they both chuckled. When asked whether it was self-defense, Garza said, "On one count it was, on one count it wasn't. . . . The guy shot me, then I shot him."

¶ 13 Garza's car was searched on December 4. Two white cloth gloves were found on the front seat floorboards. One glove was stained with blood, later identified through DNA testing as Garza's. Under the front seat was a bloodstained green cloth glove. DNA testing also identified that blood as Garza's. Garza's blood was also found on the passenger side of the car and in two locations in the hallway of the Waddell house.

¶ 14 A box of 9 mm ammunition was found under the driver's seat; Garza's fingerprints were on the box. These bullets were the same type as those found at the murder scene. A 9 mm pistol was found in Garza's belongings at his apartment; testing showed that the pistol had fired the bullets found at the murder scene. No bullets fired by any other gun were discovered at the scene, which suggests that Garza's wound came from his own gun.

¶ 15 Farley identified Garza at trial as the intruder. Eric Rodriguez, a longtime friend of Garza's, testified that before the murders he rejected Garza's offer to join him in a venture that would require that they "get a little dirty" in order to make some money. Charles Guest, a more recent acquaintance, testified that two or three weeks before the murders Garza asked if he was interested in helping Garza with some "family problems."

C.

¶ 16 Garza's primary defense at trial was that Larry had committed the murders. He claimed that law enforcement covered up Larry's involvement because Larry was a police informant. The jury found Garza guilty of two counts of first degree murder and one count of first degree burglary, a dangerous offense. The State alleged both felony and premeditated murder; the jury made no findings as to the theory or theories upon which the murder verdicts were based.

¶ 17 In the aggravation phase, the jury unanimously rejected the A.R.S. § 13-703(F)(5) (Supp.2006)³ pecuniary gain aggravator, but unanimously found the A.R.S. § 13-703(F)(8) multiple murders aggravator as to both murders. The jury also made Enmund/Tison findings in the aggravation phase.⁴ The jury found that Garza had attempted to kill Ellen, was a major participant in the burglary, and had acted with reckless indifference for human life in her murder. The jury also found that Garza had killed Rush, had attempted to kill Rush, had intended to kill Rush, was a major participant in the burglary, and had acted with reckless indifference for human life.

¶ 18 In the penalty phase, the jury declined to impose death for the murder of Ellen, but authorized the death penalty for the murder of Rush. The superior court subsequently sentenced Garza to death for the murder of Rush and to life without possibility of parole for the murder of Ellen.⁵

II. ISSUES ON APPEAL

A. Jury Selection

1. Voir dire.

¶ 19 Garza makes four arguments regarding voir dire: (1) allowing the State to speak first in every voir dire session improperly implied that the prosecutors were the authority figures in the courtroom; (2) the prosecutor's statements unfairly biased the jury pool; (3) questioning whether prospective jurors could "follow the law" improperly signaled that a capital sentence was required upon conviction; and (4) the one-hour time limit initially imposed on defense voir dire of each panel of twenty-four prospective jurors denied Garza due process.

¶ 20 With the exception of the time limit, Garza raised no objections at trial to the voir dire process. We therefore review his other arguments for fundamental error. State v. Glassel, 211 Ariz. 33, 53 ¶ 76, 116 P.3d 1193, 1213 (2005), cert. denied, 547 U.S. 1024, 126 S.Ct. 1576, 164 L.Ed.2d 308 (2006).⁶ To establish fundamental error, a defendant must prove "error going to the foundation of the case" and resultant prejudice. State v. Henderson, 210 Ariz. 561, 567 ¶¶ 19-20, 115 P.3d 601, 607 (2005) (quotation marks omitted).

a. The State speaking first.

¶ 21 Arizona law does not require that the defense speak before the state in voir dire. Arizona Rule of Criminal Procedure 18.5(d) simply allows for examination of jurors by counsel for both sides after examination by the court. Traditionally prosecutors speak to the panel first during voir dire because the state has the burden of proof and presents its case first during trial. See Ariz. R.Crim. P. 19.1(a) (governing order of proof during trial). Garza has not demonstrated that the superior court abused its discretion in following this standard procedure, much less that it committed fundamental error. See State v. Johnson, 212 Ariz. 425, 435 ¶ 35, 133 P.3d 735, 745 (noting trial court's discretion in conducting voir dire), cert. denied, ___ U.S. ___, 127 S.Ct. 559, 166 L.Ed.2d 415 (2006); State v. Clabourne, 142 Ariz. 335, 344, 690 P.2d 54, 63 (1984) (same).

b. The State's statements.

¶ 22 Garza's arguments about improper statements during the State's voir dire are directed toward comments such as these:

Mr. Barry: At the outset I want to tell you that as an attorney for the State I have a sworn duty to ensure that the record shows that every juror is fair and impartial. That's our job, and that's what we're here to do. That means that I must ensure that every juror is going to follow the law as...