Appeal from the Superior Court in Pima County The Honorable Richard S. Fields, Judge No. CR20070973
Thomas C. Horne, Arizona Attorney General, Kent E. Cattani (argued), former Chief Counsel, Criminal Appeals/Capital Litigation, Jeffrey A. Zick, Chief Counsel, Criminal Appeals/Capital Litigation, Amy Pignatella Cain, Assistant Attorney General, Tucson, for State of Arizona.
Lori J. Lefferts, Pima County Public Defender, Robert J. Hirsh, former Pima County Public Defender, Frank P. Leto (argued), Deputy Public Defender, Kristine Maish, Deputy Public Defender, Tucson, for Christopher Mathew Payne.
CHIEF JUSTICE BERCH authored the opinion of the Court, in which VICE CHIEF JUSTICE BALES, JUSTICE PELANDER, JUSTICE BRUTINEL, and JUSTICE TIMMER joined.
BERCH CHIEF JUSTICE
¶1 Christopher Mathew Payne was convicted of two counts of first degree murder, three counts of child abuse, and two counts of concealing a dead body, and was sentenced to death for each murder. We have jurisdiction of this automatic appeal pursuant to Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 13-4031.
I. FACTUAL AND PROCEDURAL BACKGROUND
¶2 Christopher Mathew Payne and his girlfriend, Reina Gonzales, starved and abused Payne's children, Ariana, age 3, and Tyler, age 4, until they died.
¶3 Payne left Ariana and Tyler with Gonzales while he worked, first driving for a medical transportation company and later selling heroin. Gonzales called Payne at work several times a day to complain about the children, even purportedly threatening to kill them if Payne did not make them behave.
¶4 Payne began punishing Ariana and Tyler by locking them in a closet while he was away. By late June 2006, the children were kept in the closet permanently. Payne initially fed them sandwiches once a day, but after about a month, he stopped feeding them at all. Payne checked on the children perhaps once a day, but he did not bathe them or let them out to use the bathroom or get fresh air.
¶5 Sometime in August 2006, Payne discovered that Ariana had died. He nonetheless left her in the closet with Tyler, who was still alive. The next day, Payne stuffed Ariana's body into a duffel bag, which he eventually put back in the closet with Tyler. Payne found Tyler dead approximately one week later.
¶6 In mid-September, Payne put the children's bodies in a blue tote box, which he placed in a rented storage unit. After Payne failed to pay the rental fee, staff opened the unit. They found only the tote inside, which they said smelled "really bad, " so they threw it in a dumpster. A staff member became concerned about the smell and called the police two days later.
¶7 The police found Ariana's partially decomposed body inside the tote. She had twelve broken ribs, a broken spine, and a broken shoulder. After finding Ariana's body, the police did not search the dumpster further. The investigation led police to Payne and Gonzales, whom they located at a motel. The officers asked Payne to accompany them to the station to answer questions, but he refused to go without his attorney. They then arrested him on an unrelated warrant.
¶8 At the station, Payne confessed to not obtaining help for the children and allowing them to die in his care. Police never found Tyler's body. In searching Payne's former apartment, police found blood on the walls inside the closet, an opening in the closet wall stuffed with feces and human hair, and several patches of body fluids on the carpet.
¶9 The State charged Payne and Gonzales with first degree murder and other crimes. In exchange for testifying, the State allowed Gonzales to plead guilty to two counts of second degree murder, for which she was given concurrent 22-year prison sentences. The jury found Payne guilty of three counts of child abuse, two counts of concealing a dead body, and two counts of first degree murder. The jury also found three aggravating factors: especial cruelty, heinousness, or depravity, A.R.S. § 13-751(F)(6); multiple homicides, id. § 13-751(F)(8); and young age of the victims, id. § 13-751(F)(9). This automatic appeal followed the imposition of death sentences for the two murders.
A. Jury Selection
¶10 The Sixth Amendment to the United States Constitution entitles a defendant to an impartial jury. State v. Velazquez, 216 Ariz. 300, 306 ¶ 14, 166 P.3d 91, 97 (2007). Payne argues that the trial court erred by dismissing some jurors improperly and failing to dismiss others.
1. Juror 49
¶11 Based on Juror 49's responses to the juror questionnaire, the trial court excused that juror because serving on the jury would interfere with her school schedule. Prospective jurors "shall" be excused if serving on a jury would cause "undue or extreme physical or financial hardship, " A.R.S. § 21-202(B)(4), or "undue or extreme hardship under the circumstances, " id. § 21-202(B)(6). Payne initially expressed concern about dismissing Juror 49 "without more questioning, " but did not object to her dismissal after the court explained the reasons for dismissing her. We thus review the decision to strike Juror 49 for fundamental error. See State v. Moody, 208 Ariz. 424, 449-50 ¶ 85, 94 P.3d 1119, 1144-45 (2004); State v. Cañez (Cañez I), 202 Ariz. 133, 147 ¶ 30, 42 P.3d 564, 578 (2002).
¶12 In her questionnaire, Juror 49 said that service would pose a substantial hardship because she was a student and had classes on trial days. Payne claims there was discriminatory intent in her dismissal, but points to no evidence of such intent. Given the student's school-related conflict and lack of evidence of discriminatory intent, the judge did not commit fundamental error by excusing her.
2. Juror 74
¶13 The trial court dismissed Juror 74 for cause based on hardship and her opposition to the death penalty. Juror 74's questionnaire stated that she belonged to a group advocating the abolition of the death penalty, would never vote to impose it under any circumstances, and was personally, morally, or religiously opposed to capital punishment. She also indicated that serving would cause undue hardship because she planned to accompany her elderly parents to the east coast twice during the scheduled trial period. Over Payne's objection, the trial court dismissed the juror without affording Payne an opportunity to rehabilitate her. We review this ruling for an abuse of discretion. See State v. Dann (Dann III), 220 Ariz. 351, 362 ¶ 35, 207 P.3d 604, 615 (2009).
¶14 A week after dismissing Juror 74, the court informed counsel that it wanted to bring her in for questioning in light of State v. Anderson (Anderson I), 197 Ariz. 314, 324 ¶ 23, 4 P.3d 369, 379 (2000). The court arranged a conference call with Juror 74. She was not under oath for the call, which occurred while she was in an Alabama airport between flights. When asked if she could set aside her feelings about the death penalty, she responded, "I cannot, I cannot participate in a process that allows the State to initiate death." She reiterated this view several times in response to questions from the court and counsel. She also affirmed that she planned to be out of town twice during trial to accompany her parents while they traveled. She had also accepted a job in Florida after being dismissed from the jury panel. Over Payne's objection, the court again dismissed Juror 74.
¶15 A prospective juror who will automatically vote for or against the death penalty or will suffer a hardship may be removed for cause. A.R.S. § 21-202(B)(4)(c); State v. Speer, 221 Ariz. 449, 454-55 ¶ 23, 212 P.3d 787, 792-93 (2009). We find no error in the court's dismissal.
¶16 Despite Juror 74's seemingly settled position on the death penalty and her travel plans, the trial court erred by failing to afford Payne an opportunity to rehabilitate her under oath. See Ariz. R. Crim. P. 18.5(d) (providing that upon request, the court "shall permit that party a reasonable time to conduct a further oral examination of the prospective jurors"). Although defense counsel was able to ask rehabilitating questions during the telephonic conference, Juror 74 was not then under oath. Citing Anderson I, Payne argues that this constituted fundamental or structural error.
¶17 But while Anderson I found the dismissal of jurors without adequate questioning to be structural error, the jurors there had expressed only equivocal objections to the death penalty and the defendant was not afforded any opportunity to rehabilitate them. 197 Ariz. at 319 ¶ 10, 324 ¶ 23, 4 P.3d at 374, 379. Here, in contrast, defense counsel was permitted to telephonically question the single juror who stated her unequivocal opposition to the death penalty.
¶18 Juror 74's objections to the death penalty remained definite and unshakable, and her telephonic responses remained consistent with those on her questionnaire. That questionnaire states that the responses "have the effect of a statement given to the Court under oath." Given these circumstances, the error was not fundamental or structural, nor did it prejudice Payne.
3. Juror 146
¶19 Payne argues that the trial court erred by dismissing Juror 146 for cause based on her objections to the death penalty because, in response to another question, she indicated that she could follow the law. Juror 146's questionnaire indicated that she was personally, morally, or religiously opposed to the death penalty and would never vote for it under any circumstances. She also stated that she could not vote for a death sentence even if she felt it appropriate after hearing the evidence, instructions, and deliberating. Yet in response to other questions, she indicated that she would follow instructions and keep an open mind regarding aggravating and mitigating circumstances.
¶20 After the process was explained, she said, "I cannot be responsible for putting a person to death even if they met [the] qualifications." When asked if she could vote to impose death if the law required, she said that she would follow instructions, but would not like it and would not "be okay with it emotionally." The judge noted that while Juror 146 said she would follow the law, he was concerned about her ability to be fair. The court granted the State's motion to strike her for cause.
¶21 Although a "general objection to the death penalty is not sufficient to create a presumption that a prospective juror is unfit because of bias to sit on the panel, " Anderson I, 197 Ariz. at 318 ¶ 6, 4 P.3d at 373 (discussing Witherspoon v. Illinois, 391 U.S. 510 (1968)), if a prospective juror's views would "prevent or substantially impair the performance of [her] duties, " the court should strike the juror for cause, Wainwright v. Witt, 469 U.S. 412, 424 (1985).
¶22 Juror 146's responses were sufficient to permit the judge to conclude that she could not be fair and impartial. See State v. Glassel, 211 Ariz. 33, 49-50 ¶¶ 53-55, 116 P.3d 1193, 1209-10 (2005) (affirming decision to strike a juror for cause who stated she could not make the decision to put someone to death despite her attestation that she would be "fair and impartial"). Therefore, the decision to dismiss Juror 146 was not an abuse of discretion.
4. Refusing to strike jurors
¶23 Payne claims that the trial court abused its discretion by refusing to strike Jurors 18, 28, 100, and 103, who were impaneled and deliberated, and Juror 94, who was designated an alternate. Although these jurors' questionnaires expressed pro-death penalty views or acknowledged media exposure or special feelings about child victims, the State rehabilitated them, with each stating that he or she would disregard personal feelings and follow the law and would not impose the death penalty if not appropriate. Thus, the trial judge did not abuse his discretion in refusing to strike these jurors.
5. Peremptory challenges
¶24 Payne claims that the trial court abused its discretion by refusing to strike Jurors 66, 71, 138, 152, and 153 for cause, requiring Payne to use peremptory challenges to remove them. Payne has failed to show that any of these jurors was so biased that it was an abuse of discretion to deny his motions to strike. See State v. Dickens, 187 Ariz. 1, 11, 926 P.2d 468, 478 (1996) (defendant must show juror "was biased and could not reasonably render a fair or impartial verdict"), abrogated on other grounds by State v. Ferrero, 229 Ariz. 239, 242-43 ¶¶ 15, 20, 274 P.3d 509, 512-13 (2012). The responses given by each juror provided the trial court a reasonable basis for concluding that each could remain impartial. Moreover, none of these jurors actually sat on the jury panel, making any error harmless. See State v. Hickman, 205 Ariz. 192, 198 ¶ 28, 68 P.3d 418, 424 (2003) (finding curative use of peremptory challenge subject to harmless error review).
¶25 Payne asserts that the trial court erred by denying his request for a change of venue based on presumed and actual prejudice.
1. Presumed prejudice
¶26 Payne first claims that the trial court erred by denying his request for a change of venue based on pre-trial publicity. We review a trial court's ruling on a motion for change of venue for an abuse of discretion. State v. Cruz, 218 Ariz. 149, 156 ¶ 12, 181 P.3d 196, 203 (2008).
¶27 Approximately two months before the trial, Payne requested a change of venue based on adverse and excessive media coverage. He filed more than 200 newspaper and broadcast reports that mentioned his case. The trial court denied the motion, noting that much of the publicity criticized CPS and most articles about the facts had appeared long before trial. Payne did not renew his motion during trial.
¶28 A defendant is entitled to change the venue for his trial "if a fair and impartial trial cannot be had." Ariz. R. Crim. P. 10.3(a). To show presumed prejudice, a defendant must show that the publicity "was so extensive or outrageous that it permeated the proceedings or created a carnival-like atmosphere." State v. Blakley, 204 Ariz. 429, 434 ¶ 14, 65 P.3d 77, 82 (2003) (internal quotation marks omitted) (quoting State v. Atwood, 171 Ariz. 576, 631, 832 P.2d 593, 648 (1992)). The publicity must be so prejudicial that the jurors could not decide the case fairly. State v. Nordstrom, 200 Ariz. 229, 239 ¶ 15, 25 P.3d 717, 727 (2001), abrogated on other grounds by Ferrero, 229 Ariz. at 243 ¶ 20, 274 Ariz. at 513. We examine whether the publicity was chiefly factual and non-inflammatory and the amount of time between the coverage and trial. See State v. Davolt, 207 Ariz. 191, 206 ¶ 46, 84 P.3d 456, 471 (2004).
¶29 Media coverage of Payne's case was substantial. Several reports included prejudicial information, including Payne's criminal history, allegations that Payne victimized Gonzales, and graphic descriptions of Ariana's remains. Furthermore, several comments in internet news articles proclaimed Payne's guilt and advocated extra-judicial punishment. But most of the coverage appeared more than a year before trial, contained facts later substantiated by evidence at trial, and repeated a basic description of the crime that mirrored indictment allegations. See Nordstrom, 200 Ariz. at 240 ¶ 17, 25 P.3d at 728 (no presumed prejudice despite "troubling publicity" that appeared "many months before trial" where "much of the information" was "presented . . . as evidence" at trial). And the court exercised discretion and gave instructions to prevent potentially harmful coverage from infecting the venire.
¶30 Payne has failed to meet the "'very heavy' burden" of proof necessary to show presumed prejudice. Cruz, 218 Ariz. at 157 ¶¶ 17, 20, 181 P.3d at 204.
2. Actual prejudice
¶31 Payne alternatively claims that even if prejudice is not presumed, he has shown actual prejudice. Actual prejudice is established by showing that sitting jurors "formed preconceived notions concerning the defendant's guilt." State v. Chaney, 141 Ariz. 295, 302, 686 P.2d 1265, 1272 (1984). Mere knowledge of or opinions about the case do not disqualify a juror who can set them aside and decide based on the evidence presented at trial. Cruz, 218 Ariz. at 156-57 ¶ 14, 181 P.3d at 203-04. Payne has not shown actual prejudice among the sitting jurors.
¶32 Of the twelve jurors who deliberated, seven reported exposure to media reports. Five of the seven reported "very little" exposure, and all seven assured the court they could disregard it. See Atwood, 171 Ariz. at 632, 832 P.2d at 649 (no prejudice where half of jurors had "minimal" media exposure, but indicated it would not interfere), disapproved of on other grounds by Nordstrom, 200 Ariz. at 241 ¶ 25, 25 P.3d at 729. Throughout voir dire and after the jury was sworn, the trial court admonished the jury to avoid coverage and report any exposure.
¶33 Payne attempts to show that events at trial tainted the objectivity of the jurors. He highlights several allegedly prejudicial events: a spectator's statement, which occurred in a hallway with no jurors present, that Payne was a "monster" who should "fry"; a cameraman's utterance of "what the f" in response to a camera problem, an utterance heard only by Payne's counsel and a deputy; and blogging by two witnesses during the trial, mostly discussing the victims' mother. Payne fails to connect these isolated events to actual prejudice or bias of any jury member.
¶34 Finally, Payne argues that actual prejudice was shown by the court's directive to jurors that they remain on one floor to avoid the media and witnesses. Such admonitions, however, are precisely the type of prophylactic measures courts should take to avoid tainting the jury. See Nordstrom, 200 Ariz. at 240 ¶¶ 18-19, 25 P.3d at 728 (finding insufficient evidence of actual prejudice to justify a change of venue and noting admonition to jurors to avoid media exposure). Thus, Payne has failed to show actual prejudice.
C. Post-Arrest Statements
¶35 Payne argues that the trial court erred by refusing to suppress his post-arrest statements, which he claims violated Miranda and were involuntary. We review rulings admitting a defendant's statements for an abuse of discretion. State v. Newell, 212 Ariz. 389, 396 ¶ 22 & n.6, 132 P.3d 833, 840 & n.6 (2006).
¶36 When the police officers first encountered Payne at a motel, they told him they were investigating a crime and asked if he would accompany them to the station to answer questions. Payne refused to go without his lawyer. The police then arrested him on an unrelated misdemeanor warrant. Once at the station, they put Payne in an interrogation room. He waited approximately thirty minutes, during which time he yelled, banged his handcuffs on the table, kicked the wall, and asked to use the restroom, which he was allowed to do. In response to the noise, Detective Walker opened the door to check on Payne. He did not intend to interrogate Payne then, but Payne insisted that questioning begin immediately. So Detective Walker read Payne his Miranda rights, which Payne waived. Eventually, Payne admitted that the victims died in his care and that he concealed their bodies in the storage facility.
1. Right to counsel
¶37 Payne claims that he clearly and unambiguously invoked his right to counsel when police first encountered him outside of the motel. Citing Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), he asserts that once a suspect in custody invokes his Miranda right to counsel, police may not interrogate him until he has counsel or he reinitiates the contact.
¶38 Assuming that Payne did request counsel outside the motel, the question arises whether his invocation was effective. Miranda rights generally cannot be invoked unless the suspect is in police custody. See McNeil v. Wisconsin, 501 U.S. 171, 182 n.3 (1991). In McNeil, the Court noted that it had "in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than 'custodial interrogation.'" Id. Although Arizona courts have never had occasion to address the issue, other jurisdictions have relied on this language from McNeil to conclude that a non-custodial, anticipatory invocation of rights is not effective. See, e.g., United States v. LaGrone, 43 F.3d 332, 339 (7th Cir. 1994); Alston v. Redman, 34 F.3d 1237, 1249 (3d Cir. 1994); United States v. Wright, 962 F.2d 953, 955 (9th Cir. 1992) ("The [Supreme] Court has never held that Miranda rights may be invoked anticipatorily outside the context of custodial interrogation; we see no reason, apart from those already rejected in McNeil, to do so here."). We reach a similar conclusion.
¶39 Payne was not in custody when he attempted to invoke his right to counsel because, other than the presence of police, he had no reason to "feel deprived of his freedom of action." See State v. Stanley, 167 Ariz. 519, 523, 809 P.2d 944, 948 (1991); see also State v. Carter, 145 Ariz. 101, 105-06, 700 P.2d 488, 492-93 (1985) (inherently coercive nature of speaking to police is insufficient). The police had not indicated that he was suspected of committing a crime, had not told him he was under arrest, and had not drawn their guns. Moreover, Payne felt free to refuse to accompany them. Thus, Payne's initial invocation was ineffective.
2. Right to silence
¶40 Payne also claims that he invoked his right to silence during the interrogation. An invocation of the right to silence must be unequivocal and unambiguous, as judged from the perspective of a reasonable officer under the totality of the circumstances. State v. Cota, 229 Ariz. 136, 144-45 ¶ 26, 272 P.3d 1027, 1035-36 (2012). If an invocation is ambiguous or equivocal, "the police are not required to end the interrogation . . . or ask questions to clarify whether the accused wants to invoke his or her Miranda rights." Berghuis v. Thompkins, 130 S.Ct. 2250, 2259-60 (2010). During the interrogation, the following exchange occurred:
PAYNE: . . . you know what man, I don't wanna talk anymore[.] [C]an I call my father[;] can I get my one phone call?
WALKER: Your father is still in [a] plane.
PAYNE: Well let me call my sister, and then my stepsister, just to let them know that, what the f*** is goin' on, and then I'll talk, man. I don't know what the f*** you wanna get outta me, but I'll talk.
¶41 A reasonable officer in these circumstances could find Payne's request ambiguous or equivocal because he indicated that he would talk after he spoke with a family member. Therefore, the trial court did not abuse its discretion in finding no violation of Miranda and admitting Payne's statements. 3. Voluntariness
¶42 Payne argues that his statements were involuntary because he relied on promises made by the police and was suffering from heroin withdrawal when he confessed. Trial courts presume confessions to be involuntary, State v. Ross, 180 Ariz. 598, 603, 886 P.2d 1354, 1359 (1994), but we review a trial court's ruling on a motion to suppress for an abuse of discretion, State v. Hausner, 230 Ariz. 60, 70 ¶ 23, 280 P.3d 604, 614 (2012).
¶43 The effect of withdrawal from drugs does not render a confession involuntary unless the suspect "is unable to understand the meaning of his statements" or cannot reason or comprehend what is happening. State v. Laffoon, 125 Ariz. 484, 487, 610 P.2d 1045, 1048 (1980) (citing State v. Arredondo, 111 Ariz. 141, 145, 526 P.2d 163, 167 (1974)). Payne reported being cold and sick, asked for methadone, and vomited at the end of the interrogation. EMTs evaluated Payne, however, and concluded that his vital signs were normal. He clearly understood and followed the questioning, consistently denied police assertions, and presented facts in a light favorable to himself.
¶44 Payne also argues that he confessed because police said they would let him speak with Gonzales. See State v. Ellison, 213 Ariz. 116, 127 ¶ 30, 140 P.3d 899, 910 (2006) (noting that promises and coercion may render statements involuntary). Courts examine the totality of the circumstances to determine whether the suspect's will was overborne by police conduct. Stanley, 167 Ariz. at 523-24, 809 P.2d at 948-49. Although police did tell Payne he could talk with Gonzales, he did not show that this was a promise or quid pro quo for talking, that he relied upon the statement, or that the police overbore his will. The circumstances indicate otherwise: Payne made his admissions at times far removed from any promises regarding Gonzales, and after Payne's initial incriminatory statements, Payne denied disposing of Tyler's body in a different location, denied abusing the children, and denied murdering the children to avoid paying child support. See Newell, 212 Ariz. at 400 ¶ 50, 132 P.3d at 844 (noting that continued denials were evidence that defendant's will was not overborne).
¶45 For these reasons, we conclude that the trial court did not abuse its discretion by finding that Payne's ...