Appeal from the Superior Court in Maricopa County The Honorable Christopher T. Whitten, Judge No. CR1993-008378
Thomas C. Horne, Arizona Attorney General, Kent E. Cattani, former Chief Counsel, Criminal Appeals/Capital Litigation, Jeffrey A. Zick, Chief Counsel, Criminal Appeals/Capital Litigation, John Pressley Todd, Assistant Attorney General (argued), Phoenix, for State of Arizona
David Goldberg, Attorney at Law (argued), Fort Collins, CO, for Efren Medina
JUSTICE ROBERT BRUTINEL authored the opinion of the Court, in which CHIEF JUSTICE BERCH, VICE CHIEF JUSTICE BALES, JUSTICE PELANDER, and JUSTICE TIMMER joined.
ROBERT BRUTINEL JUSTICE
¶1 Efren Medina was convicted in 1995 of first degree murder, third degree burglary, and aggravated robbery. The trial judge sentenced him to death for the murder and to prison terms for the other crimes, and we affirmed on appeal. State v. Medina, 193 Ariz. 504, 975 P.2d 94 (1999). In 2003, the trial court granted Medina's petition for post-conviction relief ("PCR"), which had alleged ineffective assistance of counsel at sentencing, and vacated Medina's death sentence.
¶2 At the 2008 resentencing trial, the jury found four aggravating factors, but could not agree on the sentence. The judge declared a mistrial. In 2009, a second penalty phase trial concluded with the jury determining that Medina should be sentenced to death. We have jurisdiction over this automatic appeal under Article 6, Section 5(3) of the Arizona Constitution and A.R.S. §§ 13-4031 and 13-4033(A)(1).
I. FACTUAL BACKGROUND
¶3 Just after midnight on September 30, 1993, Frazier Giles got out of bed to open a window. In the parking lot across the street, he saw a person sitting in his neighbor's car with the door open and the headlights on. Giles noticed what he thought was a "pile of rags" beside the car. A few minutes later he heard someone say, "Please don't hit me. Don't hit me. Don't. Don't." Giles returned to the window and saw a second car drive up and stop next to his neighbor's vehicle. The driver spoke to the person in the parked car for a few minutes before leaving.
¶4 The person in the parked car turned off the headlights, got out of the car, stomped on the "pile of rags, " and then dragged the pile into the street. At that point, Giles realized that the "pile of rags" was a person. The second car returned and the person who had dragged the body got inside. The car sped away, but then came "racing back" and ran over the body with both the front and back wheels. Giles left the window to call the police.
¶5 Medina's girlfriend, Angela Calderon, testified that about two hours later, she and a friend were sitting in her front yard when three men arrived in Medina's car. Medina got out of the driver's side and Ernest Aro stepped out from the passenger side. Kevin Martinez remained in the backseat. Medina and Aro appeared intoxicated and were "laughing and giggling." Calderon asked why they were laughing, and Medina told her to "watch the news" for a "speed bump" or "tire markings." Medina also simulated driving over a speed bump and made "varoom, bump, bump" noises.
¶6 Medina met Calderon at a friend's house later that morning, where he told her that "he was scared, because they had done something wrong." Medina said that he and his friends had been riding in the car when they decided to steal another car. Medina admitted pulling the car's occupant out of the vehicle and hitting and kicking him. Martinez and Medina attempted to hot-wire the car and steal the radio but were unsuccessful. Medina then pulled the man into the street.
¶7 Medina also told Calderon that Aro had driven off, assuming that Medina and Martinez would follow in the stolen vehicle, but when they did not, Aro returned to pick them up. Medina got in the driver's seat after telling Aro to scoot over. Medina drove off, then came back and ran over the victim three times, going forward over him, then reversing over him and going forward again.
¶8 Other evidence linked Medina to the murder. At the scene, investigators found a plastic bag wet with gold paint and tire marks in gold paint showing that Medina's car had traveled both eastbound and westbound. Medina's fingerprints were found in the victim's car, and it appeared that someone had tried to remove the radio.
¶9 The police searched Medina's car and found the victim's watch, hair, blood, tissue, and clothing fragments in the undercarriage, as well as spatters of gold paint. In Medina's bedroom, the police found another plastic bag filled with gold paint.
II. ISSUES ON APPEAL
A. Denial of Medina's PCR and Motion to Suppress
¶10 Medina argues that the trial court abused its discretion by denying his second PCR without holding an evidentiary hearing and refusing to suppress the evidence found as a result of a search warrant. After the trial court vacated Medina's death sentence and ordered resentencing in 2003, Medina filed a second PCR in December 2005, claiming to have found newly discovered evidence about Frazier Giles's testimony and evidence that the search warrant authorizing searches of Medina's home and car was unsigned, making the searches illegal. The trial court denied relief without holding an evidentiary hearing. Medina did not seek review of the denial of this second PCR. At Medina's retrial in 2008, he moved to suppress the evidence discovered as a result of the search warrant for the same reasons alleged in his second PCR; the trial court denied the motion.
¶11 The State contends that Medina is precluded from raising the issue whether the trial court abused its discretion by denying his PCR because he did not seek review of the denial of his PCR, as required by Arizona Rule of Criminal Procedure 32.9(c). We agree.
¶12 In any event, the trial court did not abuse its discretion in denying the PCR. The PCR asserted that, in 2004, nine years after the first trial, an attorney from the Maricopa Public Defender's Office interviewed Giles, the eyewitness to the murder. In the 2004 interview, Giles stated (contrary to his testimony in the first trial) that the person who had dragged the victim into the street was not in the car when it ran over the body. By 2004, however, Giles had been diagnosed with Alzheimer's disease, and when he was deposed in 2006, Giles had no memory whatsoever of the murder or the 2004 interview.
¶13 To obtain a new trial based on newly discovered evidence, a petitioner must meet five requirements:
(1) it must appear from the motion that the evidence relied on is, in fact, newly discovered, i.e., discovered after the trial;
(2) the motion must allege facts from which the court can infer due diligence; (3) the evidence relied on must not be merely cumulative or impeaching; (4) the evidence must be material to the issue involved; and (5) it must be evidence that would probably change the verdict if a new trial were ordered.
State v. Fisher, 141 Ariz. 227, 251, 686 P.2d 750, 774 (1984). "Further, if the motion relies on the existence of a witness willing to testify and present the new evidence at a new trial, such witness must appear to be credible to the trial judge hearing the motion." Id.
¶14 Giles's proffered testimony does not meet these requirements. The changes in his testimony could have been discovered before trial. Furthermore, Giles was not a credible witness in 2006. By that time, he had been diagnosed with and had suffered from Alzheimer's disease for several years, which the trial court found had "tainted significantly" Giles's 2004 version of the events. By 2006, when he was deposed for the PCR, Giles could not remember any of the events. We find no abuse of discretion in dismissing the claim as to Giles's testimony without an evidentiary hearing.
¶15 As for the lack of a signed warrant, Medina was precluded from raising this issue in his second PCR under Arizona Rule of Criminal Procedure 32.2(a)(3), which states that a defendant is precluded from postconviction relief if the ground for relief "has been waived at trial, on appeal, or in any previous collateral proceeding." See also A.R.S. § 13-4232(A)(3); Ariz. R. Crim. P. 32.2 cmt.. Medina could have raised the absence of a signed warrant at his original 1995 trial or his 1999 appeal to this Court; by not doing so, he waived this issue.
¶16 The trial court did not abuse its discretion in denying Medina's PCR and his motion to suppress.
B. Double Jeopardy and Cruel and Unusual Punishment
¶17 Medina argues that A.R.S. § 13-752(K) is unconstitutional because permitting a retrial after a hung jury in the penalty phase violates double jeopardy and is cruel and unusual punishment. "We review constitutional issues de novo, and, when possible, construe statutes to uphold their constitutionality." State v. Hausner, 230 Ariz. 60, 82 ¶ 99, 280 P.3d 604, 626 (2012).
¶18 Section 13-752(K) provides that if the penalty phase jury "is unable to reach a verdict, the court shall dismiss the jury and shall impanel a new jury, " which shall not retry the defendant's guilt or aggravating circumstances unanimously found by the first jury. "If the new jury is unable to reach a unanimous verdict, the court shall impose a sentence of life or natural life on the defendant." Id.
¶19 "Normally, 'a retrial following a "hung jury" does not violate the Double Jeopardy Clause.'" Sattazahn v. Pennsylvania, 537 U.S. 101, 109 (2003) (quoting Richardson v. United States, 468 U.S. 317, 324 (1984)); see State v. Johnson, 155 Ariz. 23, 27, 745 P.2d 81, 85 (1987) ("[A] retrial before a new jury of an issue on which a former jury could not reach agreement does not violate double jeopardy principles."). "[A] jury's inability to reach a decision is the kind of 'manifest necessity' that permits the declaration of a mistrial and the continuation of the initial jeopardy that commenced when the jury was first impaneled." Yeager v. United States, 557 U.S. 110, 118 (2009).
¶20 "[T]he touchstone for double-jeopardy protection in capital-sentencing proceedings is whether there has been an 'acquittal.'" Sattazahn, 537 U.S. at 109. There was no acquittal here. The jury, by failing to reach a sentencing verdict, did not conclude that the State failed to prove its case beyond a reasonable doubt. Thus, the jury's inability to agree on the sentence did not "acquit" Medina of a death sentence. Cf. id. at 109 (finding there was no acquittal when jury hung as to penalty because the jury did not make any findings concerning the alleged aggravating circumstance).
¶21 Medina argues that because the 2008 jury hung on the appropriate penalty, at least one juror must have found that the mitigating circumstances outweighed the aggravating factors and we must give this finding effect under McKoy v. North Carolina, 494 U.S. 433 (1990), and Mills v. Maryland, 486 U.S. 367 (1988). We disagree; even if some jurors reached this conclusion, it would not preclude a retrial under either McKoy or Mills. Like the jury in Sattazahn, the 2008 jury did not make formal findings regarding mitigating factors.
¶22 Moreover, the Arizona death penalty scheme meets the requirements of McKoy and Mills that each juror be allowed to give effect to the mitigating evidence he or she individually finds to be proven. McKoy, 494 U.S. at 444; Mills, 486 U.S. at 374. Arizona's scheme does not require a mitigating factor to be found unanimously by the jury. A.R.S. § 13-751(C).
¶23 Medina also characterizes the trial court's granting of the first PCR in 2003 as an acquittal that bars further retrials. The court then found "a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different." This is not equivalent to a ruling that life was the appropriate sentence or an acquittal on the merits. See State v. Ring (Ring III), 204 Ariz. 534, 551 ¶ 40, 65 P.3d 915, 932 (2003) ("A capital defendant whose original sentence is vacated on appeal can be resentenced to death so long as the defendant has not been 'acquitted' of the death sentence."). Medina's retrial did not violate the Double Jeopardy Clause.
¶24 Medina also argues that Arizona's procedures for a retrial after a hung jury in the penalty phase constitute cruel and unusual punishment because most states do not authorize retrial if a jury cannot agree on a death sentence. In analyzing this issue, we first "determine whether there is a national consensus against the sentencing practice at issue." Graham v. Florida, 130 S.Ct. 2011, 2022 (2010). Then, looking to the "'Eighth Amendment's text, history, meaning, and purpose, ' the Court must determine in the exercise of its own independent judgment whether the punishment in question violates the Constitution." Id. (quoting Kennedy v. Louisiana, 554 U.S. 407, 421 (2008)).
¶25 Most states that have the death penalty require the trial court to impose a life sentence if the penalty-phase jury cannot reach a unanimous decision. Assuming without deciding that this represents a "national consensus" against a penalty phase retrial in these circumstances, this Court still must exercise independent judgment as to whether that practice violates the Eighth Amendment. Id.
¶26 In general, allowing retrials does not subject a defendant to cruel and unusual punishment. People v. Terry, 454 P.2d 36, 41–42 (Cal. 1969); Harris v. State, 539 A.2d 637, 644 (Md. 1988). No federal or state decision has held that retrial after a hung jury in the penalty phase constitutes cruel and unusual punishment or that the United States Constitution requires the imposition of a life sentence after a hung penalty-phase jury. Medina characterizes Kansas v. Marsh, 548 U.S. 163 (2006) as holding that defaulting to a life sentence when a jury hangs in the penalty phase is a necessary part of a constitutional death penalty scheme. However, Marsh upheld the entirety of the Kansas capital scheme without stating or suggesting that such a "default" rule was itself constitutionally required. Id. at 178.
¶27 The Arizona Legislature has chosen to allow one sentencing retrial of a capital defendant after a hung penalty-phase jury and to require imposition of a life sentence if the new jury cannot reach a unanimous decision. See A.R.S. § 13-752(K). Some other states that allow retrial after a hung jury permit more than one retrial if the second jury also hangs. See Cal. Penal Code § 190.4(b); Nev. Rev. Stat. § 175.556(1).
¶28 Imposing death on a defendant who succeeds in having his court-imposed death sentence reversed in post-conviction proceedings and for whom the first penalty-phase jury was unable to reach a decision is not disproportionate punishment. The Supreme Court has found that death is categorically disproportionate for certain offenders, see Roper v. Simmons, 543 U.S. 551, 578 (2005) (precluding death penalty for defendants younger than eighteen at time of the crime); Atkins v. Virginia, 536 U.S. 304, 321 (2002) (prohibiting death penalty for "mentally retarded criminals"), and non-homicide crimes against a person, see, e.g., Kennedy, 554 U.S. at 437 (disallowing death penalty for crime of rape). But the Court grounded these holdings in determinations that the punishment, considering the characteristics of the offender and the crime, was disproportionate to any recognized penal goals. Cf. Graham, 130 S.Ct. at 2028 (noting that penological justifications for the sentencing practice are also relevant to the analysis). No such conclusion can be drawn with regard to defendants like Medina merely because they have successfully challenged their death sentences in post-conviction proceedings or a penalty-phase jury is unable to reach a verdict. We hold that § 13-752(K)'s provision for retrial after a hung penalty-phase jury does not result in cruel and unusual punishment.
C. Dismissal of Jurors by Stipulation
¶29 Medina argues that the trial court erred when it accepted, over his objection, a stipulation by counsel to dismiss jurors based solely on their questionnaire answers. "We review a trial court's rulings on voir dire of prospective jurors for abuse of discretion." State v. Glassel, 211 Ariz. 33, 45 ¶ 36, 116 P.3d 1193, 1205 (2005), opinion corrected on denial of reconsideration, 211 Ariz. 370, 121 P.3d 1240 (2005).
¶30 In Medina's 2008 trial, defense counsel and the State stipulated to release certain jurors based on their questionnaire answers. The trial court initially stated that it would require Medina's agreement on the record, but later decided trial counsel could stipulate to release jurors as part of trial strategy. Trial counsel and the State agreed to dismiss sixty jurors. Medina objected, saying that he had not seen any of the questionnaires and wished to try to rehabilitate the jurors.
¶31 "[T]he Sixth Amendment is violated if the trial jury in a capital case is chosen by excluding for cause persons who have general objections to the death penalty." State v. Anderson (Anderson I), 197 Ariz. 314, 318 ¶ 6, 4 P.3d 369, 373 (2000). In Anderson I, we held that a defendant has a right to question potential jurors orally and attempt to rehabilitate them, id. at 320 ¶ 13, 4 P.3d at 375, but we emphasized that "our holding today does not prevent excluding prospective jurors for cause based solely on answers to a written questionnaire when the adverse party fails to object, or when all parties consent to exclusion, " id. at 324 ¶ 24, 4 P.3d at 379. Accordingly, the attorneys in this case could stipulate to the dismissal of jurors. But we must still decide whether Medina's objection should override his counsel's stipulation.
¶32 A defendant has exclusive control over the key decisions "whether to plead guilty, whether to waive a jury trial and whether to testify. Beyond these matters, most trial decisions are trial strategy resting with counsel." State v. Nirschel, 155 Ariz. 206, ...