from the Superior Court in Maricopa County The Honorable
Warren J. Granville, Judge No. CR2007-005449.
Brnovich, Arizona Attorney General, John R. Lopez IV,
Solicitor General, Lacey Stover Gard, Chief Counsel, Capital
Litigation Section, Jeffrey L. Sparks (argued), Assistant
Attorney General, Phoenix, Attorneys for State of Arizona.
Goldberg (argued), David Goldberg Attorney at Law, Fort
Collins, CO, Attorney for Mark Goudeau.
CHIEF JUSTICE PELANDER authored the opinion of the Court, in
which CHIEF JUSTICE BALES, and JUSTICES BRUTINEL, TIMMER, and
BERCH (Retired) joined. VICE CHIEF JUSTICE PELANDER, opinion
of the Court:
PELANDER, VICE CHIEF JUSTICE
Mark Goudeau was convicted of nine counts of first degree
murder, among other crimes. This automatic appeal follows the
imposition of nine death sentences and other sentences. Ariz.
R. Crim. P. 31.2(b). We have jurisdiction under article 6,
section 5(3) of the Arizona Constitution and A.R.S.
§§ 13-755, -4031, and -4033(A)(1).
FACTUAL OVERVIEW AND PROCEDURAL BACKGROUND
Based on DNA evidence, the police arrested Goudeau in
September 2006 for sexual assaults committed in 2005 and
2006. Further investigation led police to suspect
Goudeau's involvement in a series of murders and other
crimes against thirty-three different victims in the Phoenix
area between August 2005 and June 2006.
The State charged Goudeau with seventy-four felonies,
including nine first degree murders for which the State
sought the death penalty. The trial court denied
Goudeau's pretrial motion to sever various counts for
trial. The court later granted the State's request to
divide the presentation of its guilt-phase evidence into
thirteen chronological "chapters" corresponding to
the dates of the offenses.
The primary issue at trial was the identity of the
perpetrator. The State presented evidence that DNA from two
of the murder victims was found on items seized from
Goudeau's home pursuant to a search warrant; a ring
belonging to another murder victim was found hidden in a shoe
in Goudeau's closet; and Goudeau's DNA was found on
one murder victim and several of the sexual assault victims.
At trial, seven victims identified Goudeau as their
assailant. One testified that he had seen Goudeau pointing a
gun downward at a murder victim's body. An eighth victim
identified Goudeau's voice from a voice lineup.
Based on toolmark analysis of bullets and shell casings, the
State's ballistics expert testified that the same .380
caliber handgun was used for all nine murders and the other
charged crimes in which shell casings were found. The gun,
however, was never found.
Evidence at trial also revealed that many of the crimes
reflected a similar modus operandi, including the perpetrator
telling victims that he had just committed a robbery and
needed to reunite with his friend; wearing the same disguise;
and wiping off evidence from sexual assault victims and areas
he had touched before leaving the crime scenes. Additionally,
the perpetrator forced all sexual assault victims to walk or
drive to a secluded area, gave many of them directions,
threatened to shoot them unless they complied with his
demands, and told them not to look at him.
After approximately seventy days of trial that spanned seven-
and-a-half-months, the jury returned guilty verdicts on
sixty-seven counts, including all nine first degree murder
charges. For each murder conviction, the jury found in the
aggravation phase that Goudeau had been previously convicted
of a life imprisonment or death-eligible offense, A.R.S.
§ 13-751(F)(1), of a serious offense, A.R.S. §
13-751(F)(2), and that he was on release from prison when he
committed the murders, A.R.S. § 13-751(F)(7)(a). The
jury further found that Goudeau committed eight of the nine
murders in an especially cruel manner, A.R.S. §
13-751(F)(6), and committed four of them while committing
another murder, A.R.S. § 13-751(F)(8).
During the testimony of his first mitigation witness in the
penalty phase, Goudeau waived any further mitigation and
presented no further evidence. He did, however, make an
allocution statement. The jury returned death verdicts on all
nine murder charges. This automatic appeal followed.
SUMMARY OF THE THIRTEEN CHAPTERS
As noted above, the State divided the presentation of its
guilt- phase evidence into thirteen chronological
"chapters." The facts of each chapter are briefly
summarized below, with additional facts addressed where
relevant to the issues raised on appeal.
1: August 6, 2005
In the evening of August 6, 2005, armed with a silver
handgun, Goudeau approached Jenny S., Sarah U., and Jesus F.,
all minors at the time, and told them he had just robbed a
bank, needed directions, and was waiting for a
"buddy" to give him a ride. At gunpoint, Goudeau
ordered them to go to a dark, secluded area behind a church
where he sexually assaulted Jenny and Sarah and then wiped
them off with a towel before leaving the scene.
2: September 8, 2005
On September 8, 2005, Georgia Thompson was found dead with a
gunshot wound to her head in her apartment parking lot. A
neighbor testified that she heard a woman scream, "leave
me alone" followed by a gunshot, and another neighbor
testified that he had also heard a woman scream that night.
3: September 20, 2005
This chapter did not directly involve the charges in this
case but addressed other crimes Goudeau committed that were
relevant to show his identity as the perpetrator of the
crimes here. The State introduced evidence of Goudeau's
previous convictions of kidnapping, sexual assault, sexual
abuse, and aggravated assault against sisters Lorena L. and
Alejandra L., committed on September 20, 2005. We describe
the facts underlying those convictions when addressing
Goudeau's contention that the trial court erred by
admitting that other-act evidence, infra
4: September 28, 2005
On September 28, 2005, Melissa C, Iselda H., and Martha H.
were working at the take-out window of a restaurant when
Goudeau pointed a gun at them and demanded money. The three
women fled to an adjoining room while Goudeau reached into
the window and grabbed Melissa's purse.
Moments later, Goudeau approached Margie M. and her
twelve-year-old daughter, Bianca M., who were sitting in a
car parked near the take-out window. Goudeau pointed a gun at
Margie, got into the passenger seat behind her, ordered her
and her daughter not to look at him, and demanded that Margie
start driving. During the drive, Goudeau talked frequently,
instructing them not to look at him and telling them that his
"buddy" had left him behind. At some point during
the drive, he demanded $20 from Margie and sexually assaulted
Bianca. Eventually, Goudeau directed Margie to pull over
behind a store where he ordered her and Bianca to get
undressed. He ordered Margie outside the car where he
sexually assaulted her. He then told her to drive back to an
area near where he had first entered the car, and once there
he demanded more money. Margie gave him her coin purse.
Before leaving, Goudeau used the victims' clothing to
wipe down areas in the car he had touched. He left Melissa
C.'s purse in the car. Chapter 5: November 3,
On November 3, 2005, Goudeau entered a store where Teresa G.
worked as a clerk, pointed a silver handgun at her head, and
demanded money. Goudeau left the store after Teresa gave him
money from the cash register.
Shortly thereafter, Goudeau approached Any P. in a parking
lot across from the store where Teresa G. worked, pointed a
silver handgun at her, and demanded that she give him a ride.
Goudeau sat in the front passenger seat and ordered Any to
drive up and down various streets. During the drive, Goudeau
told her that he had just robbed a store and that his
"buddy" had left him. He then ordered her to pull
over in a quiet neighborhood where he demanded that she
undress, and then he sexually assaulted her. Afterward,
Goudeau ordered Any to spit on her hand and rub it on the
areas of her body that he had touched. Goudeau then told her
to drive back to an area near the store where he had first
encountered her; he took her purse and cash before leaving.
6: November 7, 2005
On November 7, 2005, Alfredo L. was standing in his
restaurant with two employees, Marisol L. and Iris H., when
Goudeau entered, brandished a silver handgun, and demanded
money. Marisol and Iris fled to the back of the restaurant
while Alfredo gave Goudeau money from the cash register.
Goudeau then demanded and took a wallet from Mauricio O., a
customer standing by the cash register. After Goudeau left,
Alfredo went outside and saw Goudeau enter an adjacent
At the second restaurant, Goudeau pointed a silver gun at
Maria L. and Jesus L., who were working the cash register,
and demanded money. Jesus complied. After leaving the second
restaurant, Goudeau approached Cheryl M., her mother, and her
two young children, who were just getting out of a nearby
car. Goudeau pointed his handgun at Cheryl and her mother and
attempted to grab the mother's purse. After Cheryl told
him they did not have any money, Goudeau fired a round in the
air and ran off without the purse. As he did so, Mauricio O.
and Pedro M., customers from the first restaurant, chased
Goudeau but stopped when he shot at them.
7: December 12, 2005
On December 12, 2005, Peter O. was preparing to leave work
when he heard "a couple of bangs" coming from an
alley behind his building. When he stepped into the alley, he
saw Goudeau holding a silver gun pointed at a body on the
ground. Goudeau then pointed the gun at Peter, who heard a
click. Peter rushed back into the building and locked the
door. The body was later identified as that of Tina
Washington, who had been fatally shot in the head. Jewelry
that Washington had been wearing earlier was absent from the
8: February 20, 2006
On February 20, 2006, Romelia Vargas and Mirna Roman were
found dead, side-by-side on the floor of Vargas's food
truck, each with a gunshot wound to the head. Police did not
find Vargas's purse or driver's license at the scene.
9: March 14, 2006
On March 14, 2006, Chao Chou and Liliana Sanchez left work
together in Chou's car. Sanchez's body was later
found in the front passenger seat, partially unclothed, with
a fatal gunshot wound to her head. Chou's body was found
in an alley a few blocks away, also with a gunshot wound to
his head. Ballistics evidence indicated that both victims had
been shot inside the car, with the shooter seated in the rear
passenger seat. Chou's car keys were missing and neither
victim had any cash in their wallets.
10: March 29, 2006
On March 29, 2006, a business owner arriving at work noticed
a parallel track of drag marks and several blood spots
running from a parking lot at the front of his shop to
storage sheds in the back. Police took samples of the blood
but did not locate a body. Five days later, overwhelmed by a
stench emanating from the storage shed area, the business
owner moved some debris and uncovered what appeared to be
human body parts. Police moved additional debris and
discovered Kristin Gibbons's mostly nude and severely
decomposed body with a gunshot wound to her head. She had
bruising and scratches to her arms and legs, and her purse
and cellphone were missing.
11: April 10, 2006
On April 10, 2006, Sophia Nunez's eight-year-old son came
home from school and found his mother lying submerged in a
bathtub, which was overflowing with water and her blood.
Nunez had been shot in the face at close range while in the
bathtub. Her shirt had been pulled up and her bra was undone.
12: May 1, 2006
On May 1, 2006, Goudeau pressed a silver handgun against
Adrienne M.'s head as she sat in her car and ordered her
to open the front passenger door. After entering the car,
Goudeau said he had just robbed a store and needed to meet
his friend, and repeatedly told Adrienne where to drive and
not to look at him. Goudeau eventually ordered her to pull
over in a secluded neighborhood and get undressed. Goudeau
then ordered her to perform oral sex on him. When she
refused, he raised his gun to her head and threatened to
shoot her. She replied, "Go ahead." Adrienne heard
the gun click, grabbed her car keys, and fled from the car.
13: June 29, 2006
On June 29, 2006, Carmen Miranda was at a carwash speaking
with her boyfriend on her cellphone when he overheard a
male's voice demand that Miranda give him something.
Surveillance video from the carwash showed her vacuuming her
car seats when Goudeau approached, pushed her into the rear
seat, and then drove away in her car. Miranda's car was
found in a secluded parking lot two hours later. Miranda was
lying dead in the back seat with a gunshot wound to her face.
Her pants had been unzipped and pulled down.
ISSUES RAISED ON APPEAL
Denial of Motion to Suppress Evidence
Goudeau contends that the trial court erroneously denied his
motion to suppress evidence seized during a search of his
home, arguing that no probable cause supported the search
warrant. We review a trial court's ruling on a motion to
suppress for abuse of discretion, State v. Butler,
232 Ariz. 84, 87 ¶ 8, 302 P.3d 609, 612 (2013), but
review de novo its determination as to the existence of
probable cause, State v. Buccini, 167 Ariz. 550,
556, 810 P.2d 178, 184 (1991). We consider only the evidence
presented at the suppression hearing and view the facts in
the light most favorable to sustaining the court's
ruling. State v. Manuel, 229 Ariz. 1, 4 ¶ 11,
270 P.3d 828, 831 (2011) (citation omitted).
Following Goudeau's arrest on September 6, 2006, police
sought and obtained three separate search warrants for his
home. The first was issued on the day of Goudeau's arrest
and authorized police to seize, among other items, "any
and all shoes to include but not limited to black shoes,
white tennis shoes." The supporting affidavit recounted
facts related to the sexual assaults described in Chapters 1,
3-5, and 12, including victims' descriptions of the
perpetrator's shoes, and explained that, based on DNA
evidence, police suspected Goudeau of committing all those
The second search warrant was issued on September 15, 2006,
and pertained only to computers and related electronic
equipment in Goudeau's home not covered by the first
warrant. The second warrant was based on Goudeau's
suspected involvement in sexual assaults.
A few weeks later, police completed forensic analysis of
blood discovered on a pair of tennis shoes and a ski mask
seized from Goudeau's home during the September 6 search.
The blood on the tennis shoes matched blood from murder
victim Chao Chou (Chapter 9), and the blood on the ski mask
matched blood from murder victim Kristin Gibbons (Chapter
10). In addition, ballistics testing revealed that the same
gun had been used in the shootings described in Chapters 2,
6-11, and 13, including the murder of Tina Washington.
Police obtained a third search warrant on October 6, 2006. In
addition to describing the test results, the supporting
affidavit noted that Washington's ten-carat yellow gold
ring with her personal inscription was missing. The third
search warrant authorized police to seize from Goudeau's
home "any and all clothing and shoes/footwear belonging
to Mark Goudeau" and a "ten carat yellow gold
ring" with Washington's personalized engraving.
Police found Washington's ring in a small bag tucked
inside a shoe.
Goudeau moved to suppress the shoe and the ring. In denying
that motion, the trial court reasoned that the affidavit
supporting the third warrant neither focused on sexual
assaults nor merely repeated the first affidavit, but rather
included information that led police to suspect Goudeau had
committed several murders.
The Fourth Amendment to the United States Constitution
guarantees the right of all persons to be free from
unreasonable searches and seizures and requires all warrants
to be based on probable cause. "An officer has probable
cause to conduct a search if a reasonably prudent person,
based upon the facts known by the officer, would be justified
in concluding that the items sought are connected with
criminal activity and that they would be found at the place
to be searched." State v. Carter, 145 Ariz.
101, 110, 700 P.2d 488, 497 (1985).
Goudeau contends that police lacked probable cause to search
his home a third time because the affidavit supporting the
October 6 search warrant "failed to add anything
specific regarding the Washington murder, her jewelry[, ] or
anything else that was not in the first two search warrant
affidavits, " and contained "no facts linking
[Washington's murder] to [Goudeau] or contraband to his
home." But contrary to Goudeau's contentions, the
third affidavit supported a reasonable inference that
Washington's ring would be found in Goudeau's home.
The affidavit included new information that Chou's and
Gibbons's blood was discovered on items seized during the
first search; that the same .380 caliber handgun had been
used to kill Washington, Chou, and Gibbons; and that
Washington's ring was missing. Even if ballistics
evidence linking the separate murders was available before
the first search, the evidence linking some of the murders to
Goudeau - namely, the blood on the shoes and ski mask-was not
available until after the first search. Goudeau's
assertion that no gun was ever linked to him is incorrect;
the blood found on the shoes and ski mask matched two murder
victims who were killed by the same gun as seven other
victims, including Washington.
The new information presented in the third affidavit gave
rise to a fair probability that Washington's ring would
be found in Goudeau's home along with shoes related to
her murder and other murders described in the affidavit.
See Buccini, 167 Ariz. at 556, 810 P.2d at 184
("[P]robable cause exists if 'given all the
circumstances set forth in the affidavit . . . there is a
fair probability that contraband or evidence of a crime will
be found in a particular place.'") (quoting
Illinois v. Gates, 462 U.S. 213, 238 (1983)). That
police had previously searched Goudeau's home for shoes
related to his suspected commission of sexual assaults did
not diminish probable cause to subsequently search his home
for Washington's jewelry or other evidence relating to
her murder. Cf. State v. Prasertphong, 206 Ariz. 70,
80 ¶ 29, 75 P.3d 675, 685 (2003) (holding probable cause
supported second search of same vehicle when new information
revealed specific location of weapon not found during first
search), rev'd on other grounds, 541 U.S. 1039
(2004). The trial court did not abuse its discretion by
denying Goudeau's motion to suppress.
Consumptive DNA Testing
Goudeau argues that the trial court unconstitutionally denied
him the opportunity to observe or participate in the
State's DNA testing procedures that consumed certain DNA
samples. We review constitutional issues de novo, State
v. Nordstrom (Nordstrom III), 230 Ariz. 110, 117 ¶
27, 280 P.3d 1244, 1251 (2012), including evidentiary rulings
that implicate the Confrontation Clause, State v.
Ellison, 213 Ariz. 116, 129 ¶ 42, 140 P.3d 899, 912
(2006). But because Goudeau did not challenge the
pre-indictment consumption on constitutional grounds, we
review those claims for fundamental error. See State v.
Rutledge, 205 Ariz. 7, 12-13 ¶¶ 28-30, 66 P.3d
50, 55-56 (2003); see also State v. Henderson, 210
Ariz. 561, 567 ¶ 19, 115 P.3d 601, 607 (2005).
A fundamental error goes to the foundation of the case and
takes from the defendant a right essential to his defense,
such that the defendant could not possibly have received a
fair trial. Henderson, 210 Ariz. at 567 ¶ 19,
115 P.3d at 607. The defendant bears the burden of persuasion
in fundamental error review. Id. "To prevail
under this standard of review, a defendant must establish
both that fundamental error exists and that the error . . .
caused him prejudice." Id. at ¶ 20.
Between September 2005 and September 2006, the Phoenix Police
Department ("PPD") Crime Lab performed Short Tandem
Repeat ("STR") DNA testing on biological samples
obtained from some victims as well as items the perpetrator
was believed to have touched. Goudeau's DNA was not
In August 2006, PPD detectives requested the Department of
Public Safety ("DPS") Crime Lab to perform Y-STR
testing on remaining possible DNA samples and permitted DPS
analysts to consume the samples as needed. DPS analysts
consumed the swabs and discovered Goudeau's full Y-STR
profile on swabs taken from Alejandra L. (Chapter 3), and a
mixture containing his STR profile on swabs also taken from
Based on these results, police arrested Goudeau on September
6, 2006, and, as noted above, executed a search warrant on
his house. Further testing by DPS revealed Goudeau's
Y-STR profile on swabs taken from Sarah U., Jenny S., Any P.,
and Sophia Nunez, as well as Goudeau's partial STR
profile on swabs taken from Nunez. Most of those swabs were
consumed in the testing process.
As noted above, PPD Crime Lab analysts also tested items
seized from Goudeau's home during the September 6 search
and discovered Chao Chou's STR profile on a pair of
tennis shoes and Kristin Gibbons's STR profile on a ski
mask. The cuttings and swabs from the ski mask and shoes were
After Goudeau was indicted, the State filed a motion seeking
court approval to consume additional items of evidence
consisting of bodily fluids collected from items of clothing
connected to Goudeau or a victim. Goudeau objected on due
process grounds and alternatively requested to observe or
participate in the testing. The trial court granted the
State's motion, overruled Goudeau's objection, and
denied his request. The State later moved twice more to
consume other items, and the court granted both motions over
In total, the State requested consumptive DNA testing for
twenty-nine items after Goudeau was indicted. The State
tested additional portions of the shoes and ski mask seized
from Goudeau's home and found Chou's and
Gibbons's DNA on four items. On samples obtained from the
victims, Goudeau's DNA was found on one swab from Sarah
U. and one swab from Jenny S. All the tested items were
consumed, but the State retained the DNA extracts for future
"The Due Process Clause of the Fourteenth Amendment
requires that 'criminal defendants be afforded a
meaningful opportunity to present a complete
defense.'" State v. Lehr (Lehr III), 227
Ariz. 140, 150 ¶ 39, 254 P.3d 379, 389 (2011) (quoting
California v. Trombetta, 467 U.S. 479, 485 (1984)).
To safeguard this right, the Supreme Court "has
developed what might loosely be called the area of
constitutionally guaranteed access to evidence."
Trombetta, 467 U.S. at 485 (internal quotation marks
and citation omitted).
A defendant is denied due process when the state
"destroys evidence that 'both possess[ed] an
exculpatory value that was apparent before the evidence was
destroyed, and [was] of such a nature that the defendant
would be unable to obtain comparable evidence by other
reasonably available means.'" Lehr III, 227
Ariz. at 150 ¶ 40, 254 P.3d at 389 (quoting
Trombetta, 467 U.S. at 488-89). "When evidence
is merely potentially exculpatory, however, the 'failure
to preserve potentially useful evidence does not constitute a
denial of due process of law' unless the defendant
'can show bad faith on the part of the police.'"
Id. at 150 ¶ 41, 254 P.3d at 389 (quoting
Arizona v. Youngblood, 488 U.S. 51, 58 (1988)).
Because no evidence showed that the consumed items were
potentially exculpatory, the question is whether the State
acted in bad faith. See id. at 150 ¶ 42, 254
P.3d at 389. With respect to the pre-indictment consumption,
Goudeau argues that because the State knew he was in jail
charged with the offenses against Lorena L. and Alejandra L.
and was represented by appointed counsel, due process
required the State to notify him of the pending consumption.
We rejected a similar argument in Lehr III, in which
the defendant argued that the State acted in bad faith by
authorizing consumptive testing without first contacting the
defendant or his counsel. Id.
Here, as in Lehr III, the State retained the DNA
extract for independent testing. The State's analysts
also documented their procedures, and this documentation was
available to the defense. Goudeau has not established
fundamental error with respect to the pre-indictment
Regarding the post-indictment consumptive testing, Goudeau
timely objected to the State's procedures and suggested
various alternatives, including observing or videotaping the
extraction process. Although Lehr III did not
consider this precise issue (the defendant there did not
object before testing and did not suggest alternatives),
absent bad faith, consumptive testing does not violate due
process principles. See id. Here, there is no
evidence of bad faith as the State sought and obtained prior
court approval for all post-indictment consumption.
Goudeau nevertheless argues that the trial court abused its
discretion and violated his due process rights by admitting
into evidence the results of the State's consumptive
testing. In support, Goudeau cites the American Bar
Association ("ABA") Standards for Criminal Justice,
DNA Evidence § 16-3.4(e) (3d ed. 2007), which provides
If a motion objecting to consumptive testing is filed, the
court should consider ordering procedures that would permit
an independent evaluation of the analysis, including but not
limited to the presence of an expert representing the moving
party during evidence preparation and testing, and
videotaping or photographing the preparation and testing.
trial court complied with § 16-3.4(e) when it considered
and ultimately denied Goudeau's suggested procedures,
finding them unnecessary and unfeasible. Section 16-3.4(e),
even were we to adopt and apply it in Arizona, requires
Moreover, Goudeau has not identified any information he could
not have obtained by reviewing the forensic analysts'
notes. We agree with other courts' views that, absent bad
faith, due process does not mandate observation of DNA
testing or independent testing. See Kansas v.
Nguyen, 833 P.2d 937, 946-47 (Kan. 1992) ("In the
absence of fraud or bad faith on the part of the State and
its investigative agents, due process does not require the
State to invite the accused to participate in or to supervise
testing procedures performed in the investigation of a crime,
even where the amount of evidence to be tested is so small
sufficient material will not remain to allow the defendant to
conduct an independent analysis of the evidence.")
(internal quotation marks and citation omitted);
California v. Griffin, 761 P.2d 103, 107 (Cal. 1988)
("When a piece of evidence in the possession of the
prosecution is destroyed because the prosecution finds it
necessary to consume the evidence in order to test it, there
is no due process violation. The prosecution must be allowed
to investigate and prosecute crime, and due process does not
require that it forego investigation in order to avoid
destroying potentially exculpatory evidence.").
Generally, a defendant's due process rights are
sufficiently protected by the opportunity to cross-examine
the state's expert regarding the validity of the testing
procedures. See Nguyen, 833 P.2d at 947. This is
especially so when, as here, the defendant fails to show that
the opportunity to observe the extraction process would have
revealed or produced exculpatory evidence. Cf.
Massachusetts v. Williams, 919 N.E.2d 685, 695-96 (Mass.
2010) (holding that defendant was not entitled to suppression
of results of DNA testing because defendant failed to make
threshold showing that the inability to observe the DNA
testing deprived him of exculpatory evidence).
In any event, the post-indictment testing did not identify
Goudeau's DNA on any additional items recovered from his
home or on the victims. Rather, the testing only confirmed
what the pre-indictment testing showed: Goudeau's DNA was
on Sarah U. and Jenny S., and Chou's and Gibbons's
DNA were found on items seized from Goudeau's home.
Accordingly, because the jurors would have still received
essentially the same DNA evidence even if the trial court had
precluded the results of the post-indictment testing, any
error was harmless beyond a reasonable doubt.
The Sixth Amendment guarantees criminal defendants the right
to confront and cross-examine adverse witnesses. See
State v. Riggs, 189 Ariz. 327, 331, 942 P.2d 1159, 1163
(1997). In this context, the test to determine whether a
Sixth Amendment violation has occurred is whether the
defendant has been prevented from presenting
"information [that] bears either on the issues in the
case or on the credibility of the witness." Id.
at 331, 942 P.2d at 1163 (internal quotation marks and
Goudeau argues for the first time that the trial court's
"rigid ruling prohibiting any observation of the
state's extraction process . . . precluded [him] from
conducting a meaningful cross examination and presenting a
complete defense" in violation of the Sixth Amendment.
But Goudeau's counsel cross-examined the State's
forensic experts at length on their consumption processes and
the details of their analysis, and he had access to all their
case files. Goudeau also hired DNA experts whom he could have
called as witnesses during trial. In sum, Goudeau was not
prevented from cross-examining witnesses or presenting a
complete defense. The trial court did not commit fundamental
Denial of Motion to Sever
Goudeau contends that the trial court erred by denying his
motion to sever and by permitting joinder of all the counts
in the indictment. Because Goudeau failed to renew the motion
at or before the close of evidence, we review the severance
issue for fundamental error only. See State v.
Laird, 186 Ariz. 203, 206, 920 P.2d 769, 772 (1996);
Ariz. R. Crim. P. 13.4(c).
Before trial, Goudeau moved to sever the seventy-four
offenses charged in the indictment, seeking separate trials
for either the thirteen different incidents or,
alternatively, for the capital and noncapital charges. The
trial court denied the motion, finding that "the
evidence proffered for 'other acts' is for the
purpose of proving identity, plan, preparation, and
opportunity to commit each of the charged offenses, "
and that "the similarities and overlapping connections
that the State has proffered . . . make it more likely than
not that defendant committed the charged offenses." The
court further found that the other-act evidence "ha[s] a
probative value that is not substantially outweighed by
danger of unfair prejudice and not cumulative."
The trial court also found that "[t]he commission of
sexual assaults including oral and vaginal sex against
strangers provides a reasonable basis to infer that defendant
has a character trait giving rise to an aberrant sexual
propensity to commit the crimes charged, " and that
"the evidentiary value of proof of the 'other
acts' is not substantially outweighed by dangers of Rule
Two or more offenses may be joined in an indictment if they
"[a]re of the same or similar character, "
"[a]re based on the same conduct or are otherwise
connected together in their commission, " or "[a]re
alleged to have been a part of a common scheme or plan."
Ariz. R. Crim. P. 13.3(a)(1)-(3). On a party's motion,
the court must sever joined offenses if "necessary to
promote a fair determination of the guilt or innocence of any
defendant of any offense." Ariz. R. Crim. P. 13.4(a). A
defendant is also entitled to severance if, as here, the
offenses are joined only because they are of the same or
similar character, "unless evidence of the other
offense[s] . . . would be admissible under applicable rules
of evidence if the offenses were tried separately."
Ariz. R. Crim. P. 13.4(b); see also State v.
Aguilar, 209 Ariz. 40, 51 ¶ 38, 97 P.3d 865, 876
(2004) ("A denial of a motion to sever under Rule
13.4(b) is reversible error only if the evidence of other
crimes would not have been admitted at trial for an
evidentiary purpose anyway." (internal quotation marks
and citation omitted)).
Arizona Rule of Evidence 404(b) generally precludes the
admission of "evidence of other crimes, wrongs, or acts
. . . to prove the character of a person in order to show
action in conformity therewith." But other-act evidence
may be admitted for other purposes, such as proving the
identity of the perpetrator of the charged offense, Arizona
Rule of Evidence 404(b), provided that "the evidence is
relevant and the potential for prejudice does not
substantially outweigh its probative value, " State
v. (Pete J.) VanWinkle, 230 Ariz. 387, 393 ¶ 21,
285 P.3d 308, 314 (2012) (citing Ariz. R. Evid. 403).
"The identity exception to [Rule] 404(b) applies if
identity is in issue, and if the behavior of the accused both
on the occasion charged and on some other occasion is
sufficiently distinctive, then proof that the accused was
involved on the other occasion tends to prove his involvement
in the crime charged." State v. Stuard, 176
Ariz. 589, 597, 863 P.2d 881, 889 (1993) (internal quotation
marks and citations omitted). "[T]he pattern and
characteristics of the crimes must be so unusual and
distinctive as to be like a signature." Id.
(internal quotation marks and citation omitted); see also
State v. Roscoe (Roscoe II), 184 Ariz. 484, 491 n.2, 910
P.2d 635, 642 n.2 (1996) ("Identity and modus operandi
are obviously closely related, if not identical, since an
unrelated act with a significantly similar modus operandi may
identify the defendant as the person who committed the crime
charged."). "While identity in every particular is
not required, there must be similarities between the offenses
in those important aspects when normally there could be
expected to be found differences." State v. Roscoe
(Roscoe I), 145 Ariz. 212, 216, 700 P.2d 1312, 1317
(1984) (internal quotation marks and citation omitted).
In addition to Rule 404(b), in criminal trials for sexual
offenses, Rule 404(c) allows the admission of other-act
evidence "if relevant to show that the defendant had a
character trait giving rise to an aberrant sexual propensity
to commit the offense charged." Ariz. R. Evid. 404(c).
Before admitting evidence under Rule 404(c), the trial court
must make specific findings with respect to three aspects of
the proffered evidence. Aguilar, 209 Ariz. at 49
¶ 30, 97 P.3d at 874. First, the court must find by
clear and convincing evidence that the defendant committed
the other act. Id. Second, it "must find that
the commission of the other act provides a reasonable basis
to infer that the defendant had a character trait giving rise
to an aberrant sexual propensity to commit the charged sexual
offense." Id. Third, it "must find that
the evidentiary value of proof of the other act is not
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or other factors mentioned in Rule
403." Id. In making the final determination,
the court must consider the factors listed in Rule
Here, in reviewing the trial court's finding that the
other-act evidence would have been cross-admissible under
Rules 404(b) or (c) in a trial on any chapter had they been
severed, we consider only the evidence before the court when
it ruled on the motion to sever. See State v. (Melinda)
VanWinkle, 186 Ariz. 336, 339, 922 P.2d 301, 304 (1996)
("In considering whether the trial court erred in
denying a motion to sever, we are mindful that the trial
court exercises considerable discretion in determining
whether, in light of the evidence then before the
court, the defendant has made the requisite showing of
prejudice." (emphasis added)). Goudeau overlooks this
important limitation, instead citing only evidence admitted
after the court had denied his motion. Indeed, the
parties agreed that the trial court would rule on
Goudeau's pretrial motion to sever based on the
pleadings, and the court's ruling repeatedly notes,
"[f]or purposes of this motion only, defendant has not
objected to the State's proffer." Based on the
State's proffer (the only evidence available at the time
of the court's ruling), we find no fundamental error in
the court's denial of the motion to sever.
Identity was the only disputed issue in this case, and the
State could properly introduce other-act evidence to prove
that Goudeau committed the crimes. The similarity of
attributes and actions of the perpetrator in the different
chapters tended to show that the offenses were also of the
same or similar character for purposes of joinder under Rule
13.3(a)(1); and the State proffered many similarities among
the chapters supporting the trial court's finding that
Goudeau was more likely than not the perpetrator.
First, the State proffered evidence that the same gun was
involved in Chapters 2, 6, 7, 8, 9, 10, 11, and 13, although
the gun itself was never found. Cf. New Jersey v.
Sterling, 71 A.3d 786, 802 (N.J. 2013) (permitting
other-crimes evidence "on the issue of identity when a
particular weapon . . . used in one crime connects a
defendant to another offense"). The State further
proffered that several victims described that gun as silver-
Second, DNA evidence linking Goudeau to murder victims Chao
Chou (Chapter 9) and Kristin Gibbons (Chapter 10) was
discovered in Goudeau's home, Goudeau's DNA was found
on murder victim Sophia Nunez's body (Chapter 11), and
DNA evidence implicating Goudeau was found on sexual assault
victims Jenny S. (Chapter 1), Sarah U. (Chapter 1), and Any
P. (Chapter 5). Cf. United States v. Wright, 215
F.3d 1020, 1028 (9th Cir. 2000) ("DNA evidence alone
overwhelmingly establishes that [the defendant] was one of
the individuals [who committed the crime]."). Police
also found murder victim Tina Washington's missing
jewelry in Goudeau's home (Chapter 7).
Third, Goudeau's modus operandi was similar in several
ways across the various crimes, including telling victims
that he had just committed a robbery and needed to reunite
with his "buddy"; wearing the same disguise for the
crimes described in Chapters 4, 5, and 6; and wiping off
victims and areas he had touched before leaving the crime
scene. Additionally, Goudeau made all the surviving sexual
assault victims walk or drive to a secluded area, gave many
of them directions, threatened to shoot them unless they
complied with his demands, and told them not to look at him.
Cf. Missouri v. McKinney, 314 S.W.3d 339, 341 (Mo.
2010) (discussing that offenses might be connected for
joinder purposes by similarities in the manner in which they
The State's proffered other-act evidence from the
individual chapters supported the trial court's finding
that such evidence would have been cross-admissible under
Rule 404(b) on the issue of identity in the other chapters
had they been severed for trial. See State v.
Fierro, 107 Ariz. 479, 482-83, 489 P.2d 713, 716-17
(1971) (holding other-act evidence of wearing similar
disguise and using similar modus operandi admissible and
sufficient to prove identity). All chapters bore a sufficient
evidentiary connection to one another to implicate Goudeau as
the perpetrator, whether through use of the same gun, DNA
evidence, or similar modus operandi, even though in some
chapters the ultimate crimes were different. See
Stuard, 176 Ariz. at 597-99, 863 P.2d at 889-91. Viewed
together, the other-act evidence from each chapter was
admissible to prove identity for all offenses.
Contrary to Goudeau's argument, the trial court
considered the factual differences among the crimes,
including that the victims' descriptions of the
perpetrator varied and that his modus operandi was not
identical. But in light of the significant similarities
proffered by the State, the court did not err in implicitly
finding that the charged crimes were of the "same or
similar character" and thus properly joined. Ariz. R.
Crim. P. 13.3(a)(1). And because identity was the only
disputed issue at trial, the court did not err by finding the
other-act evidence relevant. Nor has Goudeau established that
the trial court abused its discretion in finding the
probative value of that evidence is not substantially
outweighed by the potential for unfair prejudice. In sum,
based on the evidence before the trial court when it denied
Goudeau's pretrial motion to sever, the court did not
Finally, Goudeau's argument also fails because he cannot
establish prejudice. "When a defendant challenges a
denial of severance on appeal, he 'must demonstrate
compelling prejudice against which the trial court was unable
to protect.'" State v. Murray, 184 Ariz. 9,
25, 906 P.2d 542, 558 (1995) (quoting State v. (Robert
C.) Cruz, 137 Ariz. 541, 544, 672 P.2d 470, 473
(1983)); see also Henderson, 210 Ariz. at 567
¶¶ 19-20, 115 P.3d at 607 (defendant must establish
prejudice to prevail on fundamental error review). Goudeau
"cannot show such prejudice because the trial court
instructed the jurors to consider each charged offense
separately and advised them that the State had to prove each
beyond a reasonable doubt." State v. Hausner,
230 Ariz. 60, 75 ¶ 48, 280 P.3d 604, 619 (2012). We
presume jurors follow the court's instructions. State
v. (Gilbert) Martinez, 230 Ariz. 208, 216 ¶ 40, 282
P.3d 409, 417 (2012). The record in this case bears out that
presumption as the jury acquitted Goudeau of four of the
charges and hung on the charge of sexual assault committed
against murder victim Sophia Nunez (Chapter 11). On this
record, we reject Goudeau's contentions that joining the
offenses for trial constituted fundamental error or otherwise
violated his rights under the Eighth or Fourteenth
Right to Counsel
Goudeau contends that he was constructively denied his right
to counsel because the trial court failed to sufficiently
address an irreconcilable conflict and the lack of
communication between him and his attorneys. We review a
trial court's denial of a request for new counsel for
abuse of discretion. State v. Hernandez, 232 Ariz.
313, 318 ¶ 11, 305 P.3d 378, 383 (2013). A trial court
abuses its discretion by summarily denying a motion for
change of counsel without inquiring into the "specific
factual allegations that raised a colorable claim that [the
defendant] had an irreconcilable conflict with his appointed
counsel." State v. Torres, 208 Ariz. 340, 343
¶ 9, 93 P.3d 1056, 1059 (2004).
Four times during the trial court proceedings, Goudeau
requested an ex parte hearing to discuss the alleged lack of
communication with counsel and their allegedly inadequate
investigation. The first hearing, held on July 21, 2009, was
attended by Goudeau and his two attorneys, Randall Craig and
Rodrick Carter. During the hearing, Goudeau complained that
his counsel failed to obtain cellphone tower records, allowed
the State to consume DNA swabs, and had given him only half
of the police reports. Goudeau indicated that he liked both
attorneys, but he worried they were ignoring his
investigation requests and would not be ready for trial.
In response, the trial court explained that the cellphone
company had destroyed the records and that defense counsel
had objected to DNA consumption. The court further explained
that defense attorneys frequently withhold their clients'
files because of concerns that other inmates might obtain
them and become state witnesses. The court also addressed the
Despite his complaints, Goudeau stated that he thought he and
counsel could "work it out, " and only requested
that the court "ask them to step it up a little
bit." Based on Goudeau's presentation, the court
concluded that he could "continue to communicate"
with counsel and ordered counsel to take note of
On April 6, 2010, Goudeau, his attorneys, and his
investigator, Art Hanratty, attended a second ex parte
hearing. Goudeau again voiced frustration at his
attorneys' purported lack of communication and
investigation. When directly asked if he wanted the court to
do anything, however, Goudeau responded by stating: "I
want to keep my counsel, but I want them to fight."
After hearing Goudeau's concerns, the trial court
concluded that Goudeau wanted to continue with current
Six months later, on October 14, 2010, a third ex parte
hearing was held after Goudeau filed a motion to determine
counsel. This time, Goudeau was more adamant that there were
"serious issues" between him and his attorneys. He
complained that there was still no communication, no
disclosure, and no investigation of his alibi witnesses and
defenses. He stated that he had "absolutely no
faith" in his attorneys, the animosity and tension
between them made it "impossible to communicate, "
he did not believe reconciliation was possible, and he was
"actually asking for new counsel." Goudeau then
discussed a number of items he wanted defense counsel to
The trial court questioned the defense team members about
their ability to effectively represent Goudeau and,
"recognizing the very specific concerns Mr. Goudeau has
expressed, " whether they could continue to communicate
with him. Both defense attorneys, as well as the mitigation
specialist, Steve Johnson (also a lawyer), assured the court
that they could and would effectively represent Goudeau but
expressed concerns about being ready for the January 2011
scheduled trial. Craig, Johnson, and Hanratty also stated
that they could continue to communicate with Goudeau.
Ultimately, Goudeau relented, telling the court he did not
want to start over, and he was willing to work with counsel
if they agreed to provide him with everything he requested.
Following Goudeau's response, the trial court denied the
motion to determine counsel, finding that Goudeau's
complaints did not give rise to a Sixth Amendment violation.
The trial date, however, was continued for several months,
allowing more time for the defense to prepare and work with
The trial began on April 19, 2011. On May 18, toward the end
of jury selection, the court held its final ex parte hearing
on counsel-related issues. Again, Goudeau raised concerns
about his attorneys, mainly focusing on a purported lack of
preparation. Goudeau nonetheless stated that he believed that
his attorneys were "good trial attorneys, " and
that he was not asking the court to displace them. Addressing
Goudeau's concerns, the trial court explained the role of
counsel in criminal proceedings, discussed various motions
and trial procedures, and noted that Goudeau and counsel
seemed to be communicating well throughout the jury selection
process. Goudeau again affirmed that he would continue to
work with his attorneys and did not expressly complain
further about his counsel during the trial's long guilt
The federal and Arizona Constitutions guarantee criminal
defendants the right to representation by counsel. U.S.
Const. amend. VI; Ariz. Const. art. 2, § 24;
see A.R.S. § 13-114(2). Although this right
includes the right to competent counsel, State v.
LaGrand, 152 Ariz. 483, 486, 733 P.2d 1066, 1069 (1987),
a defendant is not entitled to "counsel of choice, or to
a meaningful relationship with his or her attorney, "
Torres, 208 Ariz. at 342 ¶ 6, 93 P.3d at 1058
(internal quotation marks and citation omitted).
Nonetheless, "when there is a complete breakdown in
communication or an irreconcilable conflict between a
defendant and his appointed counsel, that defendant's
Sixth Amendment right to counsel has been violated."
Id. An erroneous denial of a request to change
counsel deprives a defendant of his Sixth Amendment right to
counsel and requires automatic reversal. State v. Moody
(Moody I), 192 Ariz. 505, 509 ¶ 23, 968 P.2d 578,
To preserve a defendant's right to counsel, trial courts
are required to inquire on the record about the basis of a
defendant's request for new counsel "[w]hen a
defendant raises a seemingly substantial complaint about
counsel." Torres, 208 Ariz. at 343 ¶ 7, 93
P.3d at 1059 (alteration in original) (quoting Smith v.
Lockhart, 923 F.2d 1314, 1320 (8th Cir. 1991)). The
nature and scope of the inquiry required depends on the
nature of the defendant's request. Id. at ¶
8. Although "generalized complaints about differences in
strategy may not require a formal hearing or an evidentiary
proceeding, " id., if a defendant sets forth
"sufficiently specific, factually based allegations in
support of his request for new counsel, " the court
"must conduct a hearing into his complaint, "
id. (quoting United States v. Lott, 310
F.3d 1231, 1249 (10th Cir. 2002)). "Likewise, if the
defendant makes specific allegations when requesting new
counsel, the trial court should elicit specific on-the-record
responses to the allegations from defense counsel."
Hernandez, 232 Ariz. at 320 ¶ 31, 305 P.3d at
If the trial court probes a defendant's request for
substitute counsel, the defendant bears the burden of
demonstrating either a "total breakdown in
communication" or an "irreconcilable conflict with
his attorney." Torres, 208 Ariz. at 343 ¶
8, 93 P.3d at 1059. "To satisfy this burden, the
defendant must present evidence of a 'severe and
pervasive conflict with his attorney or evidence that he had
such minimal contact with the attorney that meaningful
communication was ...