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State v. Goudeau

Supreme Court of Arizona

June 17, 2016

State of Arizona, Appellee,
v.
Mark Goudeau, Appellant.

         Appeal from the Superior Court in Maricopa County The Honorable Warren J. Granville, Judge No. CR2007-005449.

          Mark 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.

          David Goldberg (argued), David Goldberg Attorney at Law, Fort Collins, CO, Attorney for Mark Goudeau.

          VICE 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:

          OPINION

          PELANDER, VICE CHIEF JUSTICE

         ¶1 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).

         I. FACTUAL OVERVIEW AND PROCEDURAL BACKGROUND[1]

         ¶2 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.

         ¶3 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.

         ¶4 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.

         ¶5 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.

         ¶6 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.

         ¶7 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).

         ¶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.

         II. SUMMARY OF THE THIRTEEN CHAPTERS

         ¶9 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.

         Chapter 1: August 6, 2005

         ¶10 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.

         Chapter 2: September 8, 2005

         ¶11 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.

         Chapter 3: September 20, 2005

         ¶12 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 ¶¶ 96-102.

         Chapter 4: September 28, 2005

         ¶13 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.

         ¶14 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, 2005

         ¶15 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.

         ¶16 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.

         Chapter 6: November 7, 2005

         ¶17 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 restaurant.

         ¶18 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.

         Chapter 7: December 12, 2005

         ¶19 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 scene.

         Chapter 8: February 20, 2006

         ¶20 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.

         Chapter 9: March 14, 2006

         ¶21 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.

         Chapter 10: March 29, 2006

         ¶22 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.

         Chapter 11: April 10, 2006

         ¶23 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.

         Chapter 12: May 1, 2006

         ¶24 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.

         Chapter 13: June 29, 2006

         ¶25 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.

         III. ISSUES RAISED ON APPEAL

         A. Denial of Motion to Suppress Evidence

         ¶26 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).

         ¶27 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 offenses.

         ¶28 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.

         ¶29 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.

         ¶30 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.

         ¶31 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.

         ¶32 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).

         ¶33 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.

         ¶34 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.

         B. Consumptive DNA Testing

         ¶35 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).

         ¶36 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.

         ¶37 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 found.

         ¶38 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.[2] 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 her.

         ¶39 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.

         ¶40 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 not consumed.

         ¶41 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 Goudeau's objections.

         ¶42 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 testing.[3]

         1. Due Process

         ¶43 "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).

         ¶44 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)).

         ¶45 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.

         ¶46 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 consumption.

         ¶47 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.

         ¶48 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 as follows:

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.

         The 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 nothing more.

         ¶49 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.").

         ¶50 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).

         ¶51 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.

         2. Sixth Amendment

         ¶52 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 citation omitted).

         ¶53 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 error.

         C. Denial of Motion to Sever

         ¶54 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).

         ¶55 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."

         ¶56 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 403."

         ¶57 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)).

         ¶58 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).

         ¶59 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 404(c)(1)(C)(i)-(viii). Id.

         ¶60 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.[4] 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.

         ¶61 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.

         ¶62 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- or chrome-colored.

         ¶63 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).

         ¶64 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 were committed).

         ¶65 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.

         ¶66 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 fundamentally err.

         ¶67 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 Amendments.

         D. Right to Counsel

         ¶68 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).

         ¶69 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.

         ¶70 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 communication issue.

         ¶71 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 Goudeau's concerns.

         ¶72 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 counsel.

         ¶73 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 complete.

         ¶74 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.

         ¶75 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 Goudeau.

         ¶76 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 phase.

         ¶77 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).

         ¶78 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, 582 (1998).

         ¶79 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 385.

         ¶80 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 ΒΆ 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 ...


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