Appeal from the Superior Court in Maricopa County. The Honorable Karen L. O'Connor, Judge. No. CR2001-092032.
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Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor General, Lacey Stover Gard (argued), Chief Counsel, Capital Litigation Section, Jeffrey L. Sparks, Assistant Attorney General, Tucson, Attorneys for State of Arizona.
Tennie B. Martin, Mikel Steinfeld (argued), Deputy Public Defenders, Phoenix, Attorneys for Shawn Patrick Lynch.
BRUTINEL, JUSTICE authored the opinion of the Court, in which BALES,
CHIEF JUSTICE, PELANDER, VICE CHIEF JUSTICE and BERCH and TIMMER, JUSTICES joined.
[¶1] Shawn Patrick Lynch was convicted of first-degree murder, kidnapping, armed robbery, and burglary. He was sentenced to death for the murder and to twenty-one years' imprisonment for the other offenses. We remanded for a new penalty-phase proceeding on the murder conviction in State v. Lynch ( Lynch I ), 225 Ariz. 27, 43 ¶ 89, 234 P.3d 595, 611 (2010). On resentencing, the jury again returned a death verdict. We have jurisdiction over this automatic appeal pursuant to Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § § 13-755 and 13-4031.
I. FACTUAL BACKGROUND
[¶2] The victim, James Panzarella, was seen at a Scottsdale bar with Lynch and Michael Sehwani on March 24, 2001. Lynch, Sehwani, and Panzarella went to Panzarella's residence early the next morning. Later that morning, Sehwani used Panzarella's American Express card at a supermarket. Ten minutes later, the card was reported lost. Sehwani again used the card at a convenience store and unsuccessfully attempted to use it at a department store. The same day, Panzarella's Bank One card was used at a restaurant, a convenience store, and a motel. The Bank One card was used the following day to make a cash withdrawal and various purchases, including Everlast shoes.
[¶3] The next afternoon, Panzarella was found in his home tied to a chair with his throat slit. Police also found credit card receipts from purchases made that morning at a supermarket and convenience store.
[¶4] Police arrested Lynch and Sehwani that afternoon as they entered a truck in a motel parking lot. Sehwani was wearing Everlast shoes and had Panzarella's credit cards and checks in his wallet. In the truck and a motel room, police found keys to Panzarella's car, a sweater with Panzarella's blood on it, and a .45 caliber pistol belonging to Panzarella. Blood on Lynch's shoes matched Panzarella's DNA.
[¶5] A jury found Lynch guilty of first-degree murder, armed robbery, burglary, and kidnapping. In his first aggravation-phase trial, the jury made separate findings that the murder was especially heinous and cruel, but could not agree on whether it was especially depraved. See A.R.S. § 13-751(F)(6). The jury also could not decide if the murder was committed in expectation of pecuniary gain. See A.R.S. § 13-751(F)(5). That jury did not reach a unanimous verdict
in the penalty phase. A second penalty-phase jury found that the murder was especially depraved and committed for pecuniary gain and that a death sentence was appropriate. We remanded for a new penalty-phase trial because the trial judge erroneously instructed the second penalty-phase jury that the (F)(6) aggravator constituted three separate aggravating circumstances. Lynch I, 225 Ariz. at 42-43 ¶ ¶ 82-89, 234 P.3d at 610-11. Following the new penalty-phase trial, Lynch was again sentenced to death.
II. ISSUES ON APPEAL
A. Prosecutorial Misconduct
[¶6] Lynch asserts that the State engaged in prosecutorial misconduct in several ways, individually and in combination. " This Court will reverse a conviction for prosecutorial misconduct only when (1) misconduct is indeed present; and (2) a reasonable likelihood exists that the misconduct could have affected the jury's verdict, thereby denying [the] defendant a fair trial." State v. Martinez, 218 Ariz. 421, 426 ¶ 15, 189 P.3d 348, 353 (2008) (internal quotation marks omitted). Even when an instance of prosecutorial misconduct does not warrant reversal, " an incident may nonetheless contribute to a finding of persistent and pervasive misconduct if the cumulative effect of the incidents shows that the prosecutor intentionally engaged in improper conduct and did so with indifference, if not a specific intent, to prejudice the defendant." State v. Roque, 213 Ariz. 193, 228 ¶ 155, 141 P.3d 368, 403 (2006) (citations and internal quotation marks omitted).
[¶7] When a defendant fails to object to an alleged incident of prosecutorial misconduct in the trial court, this Court reviews for fundamental error. Id. at 228 ¶ 154, 141 P.3d at 403. To establish fundamental error, Lynch must show that " there was error that went to the foundation of his case and denied him a fair trial, and that he was, in fact, prejudiced by the error." State v. VanWinkle, 230 Ariz. 387, 393 ¶ 25, 285 P.3d 308, 314 (2012).
1. Argument during opening statements
[¶8] Lynch first asserts the prosecutor improperly presented arguments during his opening statement that " largely focused on persuading the jury that little weight should be given to certain mitigating factors and expected evidence." The trial court sustained two of Lynch's objections to the State's opening statement--that Lynch's childhood should not be considered a mitigating circumstance because " it happened 30 years ago" and that the defense wanted to " pull at [the jury's] heart strings" in its presentation of mitigating evidence. The court overruled Lynch's objection to the prosecutor's remark that no medical records supported Lynch's assertion that his father intentionally burned his hand as a child. Finally, the State implied that little weight should be given to a defense expert's life-expectancy testimony because the expert relied on a Wikipedia article and Lynch had outlived the expert's prediction for his life expectancy. The trial judge overruled Lynch's objection to these remarks.
[¶9] " Opening statement is counsel's opportunity to tell the jury what evidence they intend to introduce. Opening statement is not a time to argue the inferences and conclusions that may be drawn from evidence not yet admitted." State v. Bible, 175 Ariz. 549, 602, 858 P.2d 1152, 1205 (1993) (internal citation omitted). " [C]autionary instructions by the court generally cure any possible prejudice from argumentative comments during opening statements," because we presume that jurors follow the court's instructions. State v. Manuel, 229 Ariz. 1, 6 ¶ 24, 270 P.3d 828, 833 (2011).
[¶10] Here, the court instructed the jury that it should only consider testimony, exhibits, and stipulations as evidence and that attorneys' remarks are not evidence. As to the disallowed statements listed above, the trial judge sustained objections and properly instructed the jury not to consider them as evidence. These instructions cured any prejudice. On balance, although the prosecutor improperly made argumentative statements during opening, we find no reasonable likelihood that the misconduct affected the jury's verdict. See Martinez, 218 Ariz. at 426 ¶ 15,
189 P.3d at 353. The State's opening statement did not deny Lynch a fair trial.
2. Improper witness examination
[¶11] Lynch argues that the prosecutor committed misconduct during his cross-examination of defense witnesses. The trial court sustained Lynch's objections to two questions that were asked and answered, the State's interruption of defense witnesses on two occasions, the State's comment to a defense expert that she should " just answer my question for once," and other argumentative questions. The judge overruled Lynch's objections to combative remarks, including, " No, let me ask you the question."
[¶12] Although the State's cross-examination was aggressive, and the court would have been well within its discretion to have sustained the objections and required the prosecutor to rephrase his questions in a more civil manner, the questioning did not deny Lynch a fair trial. See State v. Bolton, 182 Ariz. 290, 308, 896 P.2d 830, 848 (1995) (" The questioning may have been argumentative. Nevertheless, the misconduct was not so egregious that it permeated the entire trial and probably affected the outcome." ). As in Bolton, " the prosecutor here did not call defendant pejorative names, refer to matters not in evidence, suggest unfavorable matter for which no proof exists, or abuse defendant in any other way." Id. The court instructed the jury to disregard questions to which objections were sustained; to only consider testimony, exhibits, and stipulations as evidence; and that attorneys' remarks are not evidence. We presume that jurors follow instructions. Manuel, 229 Ariz. at 6 ¶ 25, 270 P.3d at 833 (presuming that jury followed instructions even though the prosecutor " aggressively cross-examined" the defendant and another witness). We do not find fundamental error in the examination as a whole. As for the remarks to which Lynch's objections were overruled, while the trial court should have exercised more control over the aggressive questioning, the court did not abuse its discretion in overruling the objections.
3. Questions related to veracity of other witnesses
[¶13] Lynch argues that the State improperly questioned his expert, Dr. Jolie Brams, a clinical psychologist, on the veracity of other witnesses' statements by accusing her of vouching for witnesses and asking her to comment on the truthfulness of witnesses. " Arizona prohibits lay and expert testimony concerning the veracity of a statement by another witness" because it is the province of the jury to determine veracity and credibility, " and opinions about witness credibility are 'nothing more than advice to jurors on how to decide the case.'" State v. Boggs, 218 Ariz. 325, 335, 185 P.3d 111, 121 (2008) (quoting State v. Moran, 151 Ariz. 378, 383, 728 P.2d 248, 253 (1986)).
[¶14] Brams interviewed several people who knew Lynch and, based in part on those interviews, concluded that Lynch grew up in an atmosphere of violence and neglect. During cross-examination, the State asked Brams to recount her testimony in another criminal trial in which she had testified that it was highly unlikely that the witness could have remembered previous encounters with a defendant absent some meaningful event and that the witness' recollections were the result of suggestions by law enforcement. The State then asked Brams if testifying about recollected memories is " really just vouching for what somebody is saying" and if she had opined that a witness was not truthful in a third case. Lynch did not object to either question, and Brams answered both questions in the negative. Contrasting her testimony in the previous case to Brams's interview of Lynch's uncle, the prosecutor asked Brams whether a witness was not credible if he said he remembered something that happened forty-nine years earlier even though it did not stand out in his mind, " because you can vouch for people[.]" The trial court sustained Lynch's objection. The State also asked, " [Y]ou are telling us that, for example, [Lynch's sister], in your opinion, was telling the truth about everything?" Lynch failed to object to this question, and Brams replied that she did not think the sister was being purposefully deceitful.
¶15 These questions did not deny Lynch a fair trial. They related to Brams's witness interviews, not the testimony of other witnesses. These interviews were the foundation for Brams's testimony. The prosecutor did not encroach on the jury's evaluation of witness veracity, but rather tested Brams's credibility by attempting to show that she believed interviewees when their story was helpful but was skeptical when their story was not helpful. The State's closing argument addressed Brams's bias and credibility, not her opinion as to the veracity of testimony. The only improper remark was the suggestion that Brams " can vouch for people," and the trial court sustained Lynch's objection and instructed the jury that it was to disregard questions to which objections were sustained. The jury instructions sufficiently cured any prejudice. See State v. Hardy, 230 Ariz. 281, 293-94 ¶ ¶ 61-62, 283 P.3d 12, 24-25 (2012).
4. Speaking objections
[¶16] Lynch asserts that the prosecutor improperly made arguments through speaking objections. While making a relevance objection, the State argued that Brams was " obviously vested." After Lynch made a relevance objection to the State's cross-examination of Dr. Gerald Altschuler--a hematologist, oncologist, and internist--the State responded that Altschuler " is a jack of all trades and not a master of this." While making a relevance objection to what a witness recalled, the State said, " If he wants to just ask him what is in the transcript, I have no objection to that but what he remembers is irrelevant." The State also clarified the basis for a " cumulative" objection after the judge replied, " I'm sorry?" Finally, the prosecutor suggested that the jury be given an interview transcript in lieu of testimony as to what the transcript contained. Lynch did not object to any of these comments at trial. Lynch takes issue with the State twice objecting to his speaking objections, once in the presence of the jury, asserting that the State made speaking objections throughout the trial but did not allow him to do so.
[¶17] Arizona law does not explicitly prohibit speaking objections, but " [t]o the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means." Ariz. R. Evid. 103(d). Lynch does not identify--and we have not found--any inadmissible evidence that the State incorporated into its speaking objections. Further, Lynch did not object at trial and fails to demonstrate fundamental error. See State v. Henderson, 210 Ariz. 561, 567 ¶ 19, 115 P.3d 601, 607 (2005).
5. Attacks on defense experts
[¶18] Lynch contends that the prosecutor committed misconduct by unfairly attacking his expert witnesses. During opening statements, the State told the jury that Altschuler, Lynch's expert regarding his hepatitis C diagnosis, would testify about the Child--Pugh standard for evaluating chronic liver disease. The prosecutor opined that the Child--Pugh standard is a subjective standard that " comes from Wikipedia"  and pointed out that Lynch had already outlived the two-year life expectancy Altschuler had given. In response to a defense objection, the trial court commented that the jury had been informed that the opening statement was not evidence, but did not rule on the objection. During Altschuler's cross-examination, the prosecutor asked whether Altschuler examined patients after chemotherapy or if the examination was " done offsite where they actually receive the chemotherapy treatment." Lynch objected on relevance grounds, and the State responded that it was attempting to show Altschuler's lack of specific expertise--that he " is a jack of all trades and not a master of this." The court overruled the objection.
[¶19] As noted above, during the cross-examination of Brams, the prosecutor, referring to Brams's interview of Lynch's uncle, asked Brams whether a witness was not credible if he said he remembered something that happened forty-nine years earlier even though it did not stand out in his mind,
" because you can vouch for people[.]" The trial court sustained Lynch's objection. After asking whether Brams had testified in a prior case that a witness was mistaken in his memory of long-past events, the prosecutor then inquired, " Well, this is the same sort of thing here, isn't it? On this particular case you took a look at what somebody said and you reached a conclusion that perhaps they were mistaken or whatever term you want to use, right?" Brams explained that her testimony in the prior case was that a suggestive police interview might have influenced the interviewee's statements. Finally, the prosecutor asked Brams about her refusal to produce two documents he requested. Brams explained that she did not realize she had the documents. The prosecutor replied, " And so what you're saying is had you known that those two pages were in your binder, you would have removed them before the interview?" Brams began to deny the accusation, but the prosecutor interrupted. The judge sustained Lynch's objection to the interruption, and Brams explained that she would have disclosed the pages had she known she had them.
[¶20] The prosecutor also asked Brams whether being an expert on recollected memories is " really just vouching for what somebody is saying," but Lynch did not object. Lynch also failed to object to the prosecutor's remark during closing argument that Brams " was able to tell the Court under oath that [a] witness was wrong, without ever speaking to that witness" and that she followed improper procedures such as taking written notes that " no one can interpret." The prosecutor also accused Brams of refusing to disclose her notes and slanting the truth. Again, Lynch did not object. Lynch also takes issue with the State's comments during closing argument such as, " That's the person they chose," because, in Lynch's view, the comments were calculated to tie Brams's supposed disclosure violations and improper practices to defense counsel. Lynch failed to object at trial.
[¶21] A prosecutor may " inquire into the credentials and employment of an expert witness to show bias or motive," but cannot " insinuate that an expert is unethical or incompetent without properly admitted evidence to support it." State v. Bailey, 132 Ariz. 472, 478-79, 647 P.2d 170, 176-77 (1982).
[¶22] Here, although the prosecutor was aggressive, there was no reversible error. See id. The trial court sustained Lynch's objections to many of the questions, and the court's instructions to disregard the statements cured any possible prejudice. See Manuel, 229 Ariz. at 6 ¶ 24, 270 P.3d at 833. The court did not abuse its discretion in overruling any of the objections. As to the remarks to which Lynch did not object, he fails to show prejudice. Accordingly, the State's remarks during closing argument did not amount to fundamental error. State v. Morris, 215 Ariz. 324, 337 ¶ 59, 160 P.3d 203, 216 (2007).
6. Appeal to the fears of the jury
[¶23] Lynch next contends that the prosecutor improperly appealed to the jurors' fears during his cross-examination of defense expert James Aiken. While inquiring about the security designation that Lynch would receive in prison, the prosecutor asked about an unrelated incident in Arizona where convicted murderers escaped from prison. Lynch did not object to this question. The prosecutor also asked Aiken whether it was possible that Lynch " could stick or prick, with a sharp object, one of the corrections officers." When Aiken answered that the probability was miniscule, the prosecutor asked whether " that would be comfort to the person who got stuck by a needle that Shawn Lynch had used." The trial judge overruled Lynch's relevance objection. Lynch argues on appeal that the State did not offer any reason to believe that the escaped prisoners were in a similar position as him and that there was no evidence to support the State's assertion that he would attack an officer.
[¶24] Although the cross-examination was argumentative, and the trial judge could have sustained an objection on that basis, it was relevant. The defense elicited from Aiken testimony that Lynch could be safely housed in prison. The cross-examination was relevant rebuttal to that testimony. See Ariz. R. Evid. 401(a) (" Evidence is relevant if  it
has any tendency to make a fact more or less probable than it would be without the evidence . . . ." ); Ariz. R. Evid. 611(b) (" A witness may be cross-examined on any relevant matter." ). That other offenders escaped from prison makes it less likely that Lynch could be housed safely. Additionally, that Lynch's hepatitis C could be transmitted through ...