[178 Ariz. 118] Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section, Daniel J. Kiley, John Pressley Todd, Asst. Atty. Gen., Phoenix, for State.
Neal W. Bassett, Phoenix, for Defendant/Appellant.
David Martinez Ramirez (defendant) was convicted of two counts of premeditated first-degree murder and sentenced to death on both counts. This automatic appeal followed. See A.R.S. § 13-4031; rules 26.15, 31.2(b), and 31.15(a)(3), Arizona Rules of Criminal Procedure. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and A.R.S. §§ 13-4031 to -4033, and we affirm defendant's convictions and sentences.
The following issues are presented on appeal: 
1. Does Arizona's death penalty appeal process violate the equal protection guarantees of the United States and Arizona Constitutions?
[178 Ariz. 119] 2. Did the trial court err in admitting defendant's statements under "the public safety exception" to Miranda?
3. Did the prosecutor improperly comment on defendant's post-arrest silence in his closing argument?
4. Did the trial court err when, in response to a question that the jurors had while deliberating, it instructed the jurors to rely on the instructions previously given?
5. Is A.R.S. § 13-703(C) unconstitutional because it permits a trial court to withhold sentencing information under certain circumstances?
6. Did the trial court err in finding that the murders were committed in an especially heinous, cruel or depraved manner?
7. Does the absence of DNA testing entitle defendant to mitigation of punishment?
FACTS AND PROCEDURAL HISTORY
Defendant, an acquaintance of Mrs. G and her 15-year-old daughter, visited Mrs. G and her daughter at their West Phoenix apartment on the evening of May 24, 1989. The following morning, at about 2:30 a.m., a resident of the apartment complex observed defendant talking with Mrs. G outside Mrs. G's apartment. Defendant was wearing a white shirt and dark pants. Defendant and Mrs. G were still talking when the resident went back inside her apartment at about 3:30 a.m.
Priscilla Arce, her sister Kathy, and Kathy's boyfriend, Larry Bernabe, lived in the apartment directly above Mrs. G's. At about 5:00 a.m., they were awakened by banging, screaming, and running noises coming from the apartment below. Bernabe and Kathy went down to Mrs. G's apartment to investigate. When Bernabe knocked on the front door, the noises immediately stopped, but no one answered. Bernabe decided to phone the police. Not having a phone in their apartment, he went to a neighbor's apartment to use their phone; there was no response to his knocks. Uncertain of what to do next, Bernabe and Kathy went back upstairs to their apartment and listened for any additional activity or noises.
About 5 minutes later, Bernabe heard a bang against the wall and one last loud female scream. Priscilla also heard a female scream "no, or help me, or something like that" and then one last "ugly scream." Bernabe ran back down to Mrs. G's apartment and tried to kick down the door. He called out to Mrs. G and her daughter, but there was no response. He then ran to a window at the back of the apartment and looked into the daughter's bedroom. He noticed that a lamp was on the floor and observed a shadow moving in the hallway near the bathroom. After briefly looking in Mrs. G's bedroom window, Bernabe proceeded to the public phones located near the apartment and dialed 911.
The police arrived 2-3 minutes later at about 5:36 a.m. Bernabe and Kathy directed them to Mrs. G's apartment. Sgt. Stahl and Lt. Richards immediately proceeded to the front door where they knocked and announced their presence. When no one responded, Lt. Richards went to the back of the apartment where he was joined by Officer Sapon. Meanwhile, at the front of the apartment, Sgt. Stahl was joined by Sgt. Howk. The police officers remained in contact with each other through the use of portable radios.
Lt. Richards and Officer Sapon looked in the daughter's bedroom window. Lt. Richards noticed blood on the window frame and latch. The officers then observed defendant entering the bedroom. Officer Sapon announced the police officers' presence and yelled at defendant to go to the front door. Defendant "grunted" and left the bedroom. Officer Sapon then broadcast over the police radio that he observed a subject wearing "a red shirt and suspenders." Lt. Richards further described the suspect as "Hispanic, wearing suspenders."
A minute or two later, Lt. Richards and Officer Sapon heard the sound of window blinds rustling in Mrs. G's bedroom. Lt. Richards investigated the noise while Officer Sapon remained at the daughter's bedroom window. While Lt. Richards was away, defendant returned to the daughter's bedroom. Officer Sapon once again told defendant to go the front door and unlock it.
[178 Ariz. 120] Officer Hartson, who had arrived on the scene, obtained a passkey to the apartment from the manager of the apartment complex. He delivered the key to Sgts. Stahl and Howk, who were still at the front door. Before using the key, the police once again knocked on the door, announced their presence, and told defendant to open the door. When no one responded, Sgt. Stahl unlocked the door and he and Sgt. Howk entered the apartment.
The first thing they observed was a bloody knife blade without a handle lying in front of the door. As they approached the living room, they saw Mrs. G's clothed body lying on the floor. The officers drew their weapons and proceeded to the living room. As they walked toward Mrs. G's body, defendant approached them from the hallway. They yelled at defendant to put his hands on the back of his head; he responded by raising his hands in the air. Defendant was not wearing a shirt and "had blood all over his body, front to back." The only injuries defendant had sustained, however, were cuts on the inside of his fingers on both hands. Sgts. Stahl and Howk delivered defendant to Officer Hartson at the front door.
When informed that a male subject had been detained, Lt. Richards asked whether they had detained the "guy with the suspenders." When he was told no, Lt. Richards responded, "[t]here is a guy in that apartment with suspenders, you need to find him."
In the meantime, Officer Hartson placed defendant in an arm bar and made him kneel on the grass a few feet from the front door. Sgt. Howk stepped out of the doorway and asked Officer Hartson who else was in the apartment. Without informing defendant of his Miranda rights, Officer Hartson turned to defendant and asked him 3 questions. He first asked defendant what was going on. Defendant responded, "[w]e had a big fight." Officer Hartson then asked who else was inside. Defendant replied, "[m]y girl friend and her daughter." Last, Officer Hartson asked defendant if anybody else was hurt, to which defendant responded, "[y]eah, they're hurt pretty bad. We're all hurt pretty bad." Officer Hartson immediately relayed this information to Sgt. Howk.
Sgts. Stahl and Howk reentered the apartment and conducted a protective sweep. Sgt. Stahl testified that they "were looking possibly for the guy with the red shirt." No such suspect was found. However, upon entering the daughter's bedroom, they found the daughter's naked body lying face down on a blanket.
While Sgts. Stahl and Howk were still in the apartment, Officer Hartson escorted defendant to the patrol car. Defendant volunteered the following statement: "You can ask anyone, me and my girlfriend are very close, we're going to get married." Officer Hartson observed that defendant appeared to be under the influence of drugs or alcohol.
Investigator Fuqua, who was in charge of the investigation, supervised a detailed examination of the apartment. At trial, he described the murder scene. In the foyer area, blood was smeared on the walls on both sides of the entryway and on the front door. Just inside the door lay a bloody knife blade. The floor near the baseboard was stained with blood that appeared to be from the hair from someone's head.
Mrs. G's body lay face up on the living room floor near a love seat. Investigator Fuqua observed that she had suffered numerous stab wounds. On Mrs. G's left leg, beneath her knee, were droplets of blood, which appeared to have fallen straight down from their origin at a 90? angle. A cake knife, bent at a 45? angle, lay near her right arm, and a portion of its handle was in her hair. Also in her hair was a handle from another knife that matched the knife blade found near the front door.
The couch in the living room was stained with blood and pulled away from the wall. A blood spatter on the wall indicated that someone had been behind the couch. A pillow on the floor was also stained with blood, and blood was spattered on the wall near the television. A pair of blood-stained suspenders lay on a chair.
The bathroom had blood on the floor, door, walls, sink and bathtub. Water was running in the bathtub, diluting the blood in it. On the toilet seat, on top of a garment, lay a pair of scissors. The scissors were saturated with
[178 Ariz. 121] blood and had hair sticking to them. A portion of one of the shears was broken off.
The kitchen area was also covered with blood--on the floor, wall, sink, stove, and cabinets. Several drawers were pulled open, and at least two of them had blood droplets inside. A man's white shirt, stained with blood, lay on an ironing board in the dining area. In the hallway outside the kitchen lay a blood-soaked box cutter knife.
The daughter's bedroom was "in a state of considerable disarray." The daughter's blood-covered naked body was lying face down on the floor on a blanket. The dresser was pulled out about 3 feet from the wall, and the stereo speakers that had been on the dresser were knocked over on the floor and stained with blood. In the corner of the room lay a bloody towel that contained hair consistent with that of the daughter. Blood was on the floor, door, walls, dresser, the window, and the window's lock mechanism.
Except for a long streak of blood running down the wall to the right of the window, Mrs. G's room showed no signs of disturbance. Outside the front door of the apartment, the police found a three-finger blood smear on an exterior wall.
Mrs. G's autopsy revealed that she had been stabbed 18 times in the neck. One of these wounds penetrated her jugular vein and was potentially fatal. The wounds in Mrs. G's neck were approximately an inch deep and the shapes of the wounds were consistent with the scissors the police found in the bathroom. Mrs. G was also stabbed in the back and in her knee. The wound to the back also proved to be potentially fatal. In addition to the wounds to her neck, back and knee, Mrs. G sustained defensive wounds on both of her forearms and on her left hand. She also suffered bruising and hemorrhaging around her eyes consistent with a blunt force injury. The medical examiner testified that, despite the fatal wounds inflicted on her body, Mrs. G would have been able to "move about" for a brief period of time.
The daughter's autopsy revealed that she had been stabbed 15 times in the neck. She also sustained bruises and abrasions to her face. The medical examiner testified that although the stab wounds caused her death, her death was not immediate.
The police obtained vaginal swabs from the daughter that tested positive for semen. Criminalist Inta Meya testified that, based on the tests she conducted, she was unable to exclude defendant as a possible semen donor.
Although defendant did not testify at trial, his defense was, in essence, that no direct evidence linked him to the crime--i.e., no fingerprints were found on the murder weapons--and that his mere presence was insufficient to sustain a murder conviction. The defense further maintained that another person had entered the apartment while defendant, Mrs. G, and the daughter were asleep, and that person committed the murders. The jury unanimously found defendant guilty of 2 counts of premeditated first-degree murder.
Before the sentencing hearing, defendant was given a psychological examination, during which he claimed that he had had 10 beers and 2 mixed drinks on the night of the murders, and that he had injected cocaine 6 times that evening. Defendant, who was 32 years old at the time of the murders, also admitted during the psychological examination that he had sex with the 15-year-old daughter on the night of the murders and that he had sex with her on 4 previous occasions.
Before imposing sentence, the trial court gave defendant an opportunity to speak on his own behalf, but he chose not to address the court. The trial court sentenced him to death on both counts. In its special verdict, the court found 3 aggravating circumstances under A.R.S. § 13-703(F): (1) that defendant had 2 prior violent felony convictions, (2) that defendant committed the murders in an especially cruel, heinous, or depraved manner, and (3) that defendant committed a multiple homicide during the commission of the crime. The court considered this last aggravating circumstance, which is defined by § 13-703(F)(8), to support the death sentence on either Count I or Count II.
In mitigation, the court found that defendant was impaired under § 13-703(G)(1). The court also found 7 non-statutory mitigating
[178 Ariz. 122] circumstances: (1) his unstable family background, (2) his poor educational experience, (3) that he was the victim of sexual abuse when he was young, (4) his gang affiliation, (5) his chronic substance abuse, (6) his psychological history, and (7) his love of family. The court determined that none of the mitigating circumstances, taken individually or collectively, warranted leniency.
I. Constitutionality of A.R.S. § 13-4031
Defendant argues that A.R.S. § 13-4031 violates the equal protection guarantees of the United States and Arizona Constitutions. Section 13-4031 provides:
The state, or any party to a prosecution by indictment, information or complaint, may appeal as prescribed by law and in the manner provided by the rules of criminal procedure, except criminal actions involving crimes for which a sentence of death has actually been imposed may only be appealed to the supreme court.
(Emphasis added.) Defendant asserts that § 13-4031 is unconstitutional because it limits capital defendants to one appeal: a mandatory direct appeal to the supreme court, 
whereas non-capital defendants have two possibilities for appeal: direct appeal to the court of appeals 
and discretionary review by the supreme court. 
Defendant argues that this statute violates the Equal Protection Clause of the United States Constitution because it has no rational basis. He further argues that § 13-4031 violates the Equal Protection Clause of the Arizona Constitution, art. 2, § 13, because it abridges his fundamental right to an appeal as guaranteed by art. 2, § 24, without promoting a compelling state interest. Defendant's arguments are without merit. Section 13-4031 is constitutional under both the United States and the Arizona Constitutions.
The United States Supreme Court found Florida's capital sentencing statute constitutional in Proffitt v. Florida, 428 U.S. 242, 259-60, 96 S.Ct. 2960, 2970, 49 L.Ed.2d 913 (1976). Florida's capital sentencing procedures provide for automatic review of capital cases by the state supreme court in a manner similar to Arizona's. Proffitt, 428 U.S. at 250-51, 96 S.Ct. at 2966. The Court determined that Florida's automatic review procedure promoted consistency in death sentencing. Proffitt, 428 U.S. at 258-59, 96 S.Ct. at 2969. Thus, § 13-4031 has a rational basis and does not violate the United States Constitution.
Nor does § 13-4031 violate defendant's right to equal protection as guaranteed by art. 2, § 13 of the Arizona Constitution. This court has held that the constitutional right to appeal is subject to reasonable statutory regulations, and is infringed only when such conditions amount to a denial of justice. Hancock v. State, 31 Ariz. 389, 392, 254 P. 225, 226 (1927) (citations omitted). And, although strict scrutiny applies when a statute affects the right to bring an appeal, the rational basis test applies to those portions of a statute that do not affect the fundamental right to appeal but merely regulate it. See Kenyon v. Hammer, 142 Ariz. 69, 83, 688 P.2d 961, 975 (1984), distinguishing Eastin v. Broomfield, 116 Ariz. 576, 570 P.2d 744 (1977). Thus, because § 13-4031 is regulatory in nature--providing for direct appeal to the state's highest tribunal in capital cases--the rational basis test applies. See Kenyon, 142 Ariz. at 83, 688 P.2d at 975. And, as noted by the United States Supreme Court, there is a rational basis for requiring automatic review by a state's supreme court: such a review promotes consistency in death sentencing. See Proffitt, 428 U.S. at 258, 96 S.Ct. at 2969. Thus, we find that § 13-4031 does not violate art. 2, § 13 of the Arizona Constitution.
II. Trial Issues
A. Improper Miranda Questioning
On the morning of the murders, defendant made certain statements in response to 3
[178 Ariz. 123] questions asked by Officer Hartson. Before trial, defendant moved to suppress the statements. The trial judge denied the motion and ruled that the statements were admissible because:
[T]hose statements were voluntary, ... they were not obtained in violation of the defendant's Fifth and Sixth Amendment rights, and ... they were obtained pursuant to public safety concerns of the officers at the time, also concern for the opportunity to rescue anybody that might still be in that apartment, and to protect themselves.
Defendant argues that the trial judge erred because the public safety exception does not apply, and his responses were obtained in violation of his Miranda rights.
"Miranda requires the police to give certain warnings to a person in custody before interrogating him." United States v. Brady, 819 F.2d 884, 887 (9th Cir.1987), citing Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 1612-13, 16 L.Ed.2d 694 (1966). "A person is in custody if he is under arrest, or if his freedom of movement is restrained to a degree associated with formal arrest." Brady, 819 F.2d at 887, citing New York v. Quarles, 467 U.S. 649, 655, 104 S.Ct. 2626, 2631, 81 L.Ed.2d 550 (1984).
Defendant clearly was in custody when Officer Hartson questioned him. After he was removed from the murder scene, Officer Hartson placed defendant in an arm bar and made him kneel on the ground. In fact, Officer Hartson later testified that defendant was not free to leave at the time of the questioning. Thus, because defendant was in custody when Officer Hartson questioned him, Miranda warnings normally would have been required before the statements could be admitted at trial.
Exceptions to this general rule exist, however. The Supreme Court has stated that "[t]he prophylactic Miranda warnings ... are 'not themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination is protected.' " Quarles, 467 U.S. at 654, 104 S.Ct. at 2630, quoting Michigan v. Tucker, 417 U.S. 433, 444, 94 S.Ct. 2357, 2364, 41 L.Ed.2d 182 (1974). In Quarles, the Court recognized a public safety exception to the Miranda requirement, holding that Miranda need not "be applied in all its rigor to a situation in which police officers ask questions reasonably prompted by a concern for the public safety." 467 U.S. at 656, 104 S.Ct. at 2632. The Court distinguished between "questions necessary to secure [the police's] own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect." 467 U.S. at 659, 104 S.Ct. at 2633. The Court concluded that voluntary responses to the first type of questions could be admitted, despite the lack of Miranda warnings. See Quarles, 467 U.S. at 657-60, 104 S.Ct. at 2632-33.
Defendant does not argue that his statements were involuntary; instead, he argues that the public safety exception does not apply because the questions asked were investigatory in nature and thus went beyond the scope of the public safety exception recognized by the Court in Quarles. We disagree.
At the time that Officer Hartson questioned defendant, the police were operating under a great deal of uncertainty in a very dangerous situation. The police had been denied access to the apartment; yet, they knew that someone was in the apartment, wearing what they thought was a red shirt and suspenders. When they finally gained access to the apartment, the police were greeted with a blood-splattered room, a bloody knife blade lying on the floor, and the body of Mrs. G lying on the living room floor. As the officers surveyed the carnage, the bloodstained, shirtless defendant approached them from the hallway. While one of the officers took defendant into custody, another notified the officers stationed at the back of the apartment that they had detained a male subject. After being told that the subject was not wearing suspenders, one of the officers responded: "[t]here is a guy in that apartment with suspenders, you need to find him." It was in response to this situation that Officer Hartson, without first informing defendant of his Miranda rights, asked defendant the following three questions:
Q. What is ...