Appeal from the Superior Court in Maricopa County. The Honorable Karen L. O'Connor, Judge. No. CR2010-120027.
Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor General, Lacey Stover Gard, Chief Counsel, Capital Litigation Section, Susanne Bartlett Blomo, Assistant Attorney General, Phoenix, Laura P. Chiasson (argued), Tucson, Attorneys for State of Arizona.
Richard D. Gierloff (argued), Law Offices of Richard D. Gierloff, P.C., Phoenix, Attorney for Vincent Joseph Guarino.
JUSTICE BERCH (RETIRED) authored the opinion of the Court, in which CHIEF JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES BRUTINEL and TIMMER joined.
[¶1] Vincent Joseph Guarino was convicted of the kidnapping, assault, and murder of Chad Rowe, among other crimes. This automatic appeal follows the imposition of the death penalty. Ariz. R. Crim. P. 31.2(b). We have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution
and A.R.S. § 13-4031.
[¶2] To secure membership in the Aryan Brotherhood, a criminal gang, Defendant Vincent Guarino (" Guarino" ) sought to murder Chad Rowe. Accompanied by his brother Frank Guarino (" Frank" ), Guarino went to a home in north Phoenix. Guarino entered, found Chad, and brought him out at gunpoint. The three men drove away in a truck. Chad's body was later found in a residential street. He had been stabbed in the hand and foot and shot three times.
[¶3] During a police interview, Frank confessed to participating in the murder and told officers of his brother's involvement. Guarino did not confess during police interviews, but officers later intercepted a letter in which he admitted murdering Chad Rowe.
A. Frank's Statements
[¶4] During the penalty phase of Guarino's trial, the State introduced statements from Frank's interview. Guarino argues that the admission of those statements violated Arizona Rules of Evidence 401 and 403, A.R.S. § 13-751(G), and the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
[¶5] Because Guarino objected to the admission of Frank's statements on grounds of relevance and undue prejudice, we review the rulings on those objections for an abuse of discretion. See State v. Nordstrom, 230 Ariz. 110, 114 ¶ 8, 280 P.3d 1244, 1248 (2012). We review the constitutional issues de novo. State v. Moody, 208 Ariz. 424, 445 ¶ 62, 94 P.3d 1119, 1140 (2004).
1. Arizona Rules of Evidence 401 and 403
[¶6] Guarino argues that the trial court abused its discretion in admitting evidence of Frank's statements recounting the events preceding Chad's death because they were " irrelevant or cumulative and unfairly prejudicial under Rule 403." Although the rules of evidence do not apply during the penalty phase of a capital trial, Arizona statutes provide that the state may only introduce evidence that is " relevant to any of the mitigating circumstances," A.R.S. § 13-751(C), or that tends to show that the defendant should not be shown leniency. A.R.S. § 13-752(G). We have held that whether evidence falls within these categories is guided by " fundamentally the same considerations as . . . a relevancy determination under Arizona Rule of Evidence 401 or 403." State v. McGill, 213 Ariz. 147, 157 ¶ 40, 140 P.3d 930, 940 (2006).
[¶7] At the aggravation phase of the trial, Guarino attempted to defeat the § 13-751(F)(6) " cruelty" aggravator by arguing that no one knew what happened in the truck--that is, who (Frank or Guarino) did what to the victim. From this, he urged the jury not to find the murder especially cruel. The jury nonetheless found the cruelty aggravator established beyond a reasonable doubt. In the penalty phase, the State presented statements from Frank's interview, which described events in the truck, to counter Guarino's suggestion that he should be shown leniency because Frank inflicted most of the harm to the victim.
[¶8] Guarino's participation in harming the victim and in the murder itself were important considerations in the penalty phase. Frank's statements implicated Guarino as a major participant and, in fact, provided evidence that he actually killed the victim. The statements also rebutted Guarino's mitigation claim that Frank or other members of the Aryan Brotherhood influenced him to commit the murder. Frank's statements were therefore relevant to whether Guarino deserved leniency. See A.R.S. § 13-752(G) (" [T]he state may present any evidence that is relevant to the determination of whether there is mitigation that is sufficiently substantial to call for leniency," including " any evidence that demonstrates that the defendant should not be shown leniency." ). Moreover, in the penalty phase, the prosecution
may present such relevant information " regardless of its admissibility under the rules governing admission of evidence at criminal trials." A.R.S. § 13-751(C). The court did not abuse its discretion in finding the evidence relevant.
[¶9] Guarino nonetheless argues that, even if relevant, the evidence was unfairly prejudicial and so should have been precluded under Rule 403. See State v. Schurz, 176 Ariz. 46, 52, 859 P.2d 156, 162 (1993) (noting that relevant evidence " may be excluded under Rule 403 if its probative value is substantially outweighed by the danger of unfair prejudice" ). But while evidence that makes a defendant look bad may be prejudicial in the eyes of jurors, it is not ...