from the Superior Court in Maricopa County The Honorable
Warren J. Granville, Judge No. CR 2007-008288
IN PART, REVERSED AND REMANDED IN PART
Brnovich, Arizona Attorney General, Dominic Draye, Solicitor
General, Lacey Stover Gard, Chief Counsel, Capital Litigation
Section, and Jeffrey L. Sparks (argued), Assistant Attorney
General, Phoenix, Attorneys for State of Arizona
Gregory J. Kuykendall (argued) and Theresa Loken, Kuykendall
& Associates, Tucson, Attorneys for Joel Randu
J. Euchner, Tucson, Attorney for Amicus Curiae Arizona
Attorneys for Criminal Justice
JUSTICE TIMMER authored the opinion of the Court, in which
CHIEF JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and
JUSTICES BRUTINEL and BOLICK joined.
Joel Randu Escalante-Orozco was sentenced to death after a
jury found him guilty of first degree murder, sexual assault,
and first degree burglary. We have jurisdiction over his
automatic appeal and the State's cross-appeal under
article 6, section 5(3) of the Arizona Constitution and
A.R.S. § 13-4031. We affirm Escalante-Orozco's
convictions and non-death sentences. To comply with the
United States Supreme Court's decision in Lynch v.
Arizona, 136 S.Ct. 1818 (2016), we vacate the death
sentence and remand for a new penalty phase.
In March 2001, Escalante-Orozco was employed as a live-in
maintenance worker at a Phoenix apartment complex. On March
9, he installed flooring in the apartment that victim Maria
R. shared with her three-year-old son.
Maria's body was found the next morning face down in her
bathtub with her nightshirt bunched around her neck. She had
been beaten, sexually assaulted, and stabbed until she bled
to death. Maria's young son was wandering unharmed in the
Escalante-Orozco sold his car and immediately left for Mexico
without informing apartment management. Six years later,
federal agents detained Escalante-Orozco in Idaho and
notified Phoenix Police.
After waiving his Miranda[]
rights, Escalante-Orozco told Phoenix Police officers that he
drank two beers on the night of the murder and then
"everything went blank" until he found himself
lying on Maria in her hallway with his hand on her
"private part." He denied putting Maria's body
in the bathtub but said he had washed blood off his face and
hands. Frightened, he returned to his apartment, showered,
gathered important documents, threw his blood-covered clothes
into an apartment complex dumpster, and took a bus to Mexico
the next day. He denied assaulting or killing Maria and
suggested he had been drugged and set up by relatives who
were angry with him.
The State indicted Escalante-Orozco on one count of first
degree murder, two counts of sexual assault, and one count of
first degree burglary and sought the death penalty. After a
prescreening evaluation revealed that Escalante-Orozco had an
intelligence quotient ("IQ") less than
seventy-five, the trial court conducted a twenty-one-day
Atkins[] hearing to determine
whether he suffers from an intellectual disability, making
him ineligible for the death penalty. See A.R.S.
§ 13-753. The court ultimately found that
Escalante-Orozco did not meet his burden of proving
At trial, the court dismissed one of the sexual assault
charges, and the jury found Escalante-Orozco guilty on all
remaining counts. The jury found that Escalante-Orozco had
murdered Maria in an especially cruel manner, see
A.R.S. § 13-751(F)(6), and, after considering mitigation
evidence, determined that he should be sentenced to death.
The court imposed consecutive sentences of fifteen and twenty
years' imprisonment for the sexual assault and burglary
Appeal and cross-appeal
Constitutionality of Arizona's framework for determining
A person with an intellectual disability cannot be sentenced
to death. A.R.S. § 13-753; Atkins, 536 U.S. at
321. The Supreme Court has not directed a precise methodology
for determining intellectual disability. See Bobby v.
Bies, 556 U.S. 825, 830 (2009) ("Our opinion [in
Atkins] did not provide definitive procedural or
substantive guides for determining when a person who claims
mental retardation 'will be so impaired as to fall
[within Atkins' compass].'").
Escalante-Orozco argues that aspects of § 13-753, which
provides Arizona's framework for determining whether a
capital defendant has an intellectual disability, are
unconstitutional. We review matters of statutory
interpretation and constitutional law de novo. State v.
Roque, 213 Ariz. 193, 217 ¶ 89, 141 P.3d 368, 392
(2006). We presume a statute is constitutional and will
construe it to preserve its constitutionality, if possible.
State v. Thompson, 204 Ariz. 471, 474 ¶ 10, 65
P.3d 420, 423 (2003).
Before considering Escalante-Orozco's arguments, it is
useful to broadly review the framework for determining an
intellectual disability. Arizona defines "intellectual
disability" as meaning "a condition based on a
mental deficit that involves significantly subaverage general
intellectual functioning, existing concurrently with
significant impairment in adaptive behavior, where the onset
of the foregoing conditions occurred before the defendant
reached the age of eighteen." A.R.S. §
13-753(K)(3). When the state files a notice of intent to seek
the death penalty, the court, absent a defendant's
objection, must appoint a prescreening psychological expert
to determine the defendant's IQ. Id. §
13-753(B). If the IQ is higher than seventy-five, the state
can continue to seek the death penalty, and no further action
is necessary. Id. § 13-753(C).
If the defendant's IQ is seventy-five or less, a more
rigorous inquiry is triggered. The court must appoint one or
more experts to examine the defendant "using current
community, nationally and culturally accepted physical,
developmental, psychological and intelligence testing
procedures." Id. § 13-753(D)- (E). The
defendant is then afforded a hearing, where he bears the
burden of proving an intellectual disability by clear and
convincing evidence. Id. § 13-753(G). If the
court finds that the defendant has an intellectual
disability, it must dismiss the notice of intent to seek the
death penalty. Id. § 13-753(H). If the
defendant fails to prove an intellectual disability, the
notice remains in effect. Id. The defendant can
still introduce evidence of an intellectual disability or
diminished mental capacity at the penalty phase of the
sentencing proceeding. Id.
IQ score cutoff
Section 13-753(F) provides that if all the defendant's IQ
test scores are above seventy, the court cannot dismiss the
notice of intent to seek the death penalty on intellectual
disability grounds. Escalante-Orozco argues that this
provision violates the Eighth Amendment and article II,
section 15 of the Arizona Constitution.
Escalante-Orozco's four IQ tests resulted in scores
ranging from fifty-eight to seventy-nine, considering
adjustments for error. Because some scores were below
seventy, § 13-753(F) did not apply, and Escalante-Orozco
lacks standing to challenge the statute's
constitutionality. Cf. State v. Reeves, 233 Ariz.
182, 185 ¶ 10, 310 P.3d 970, 973 (2013) (declining to
reach defendant's constitutional challenge to a capital
sentencing statute permitting two retrials after a guilty
verdict when the defendant was subject to only one retrial);
State v. Powers, 117 Ariz. 220, 225, 571 P.2d 1016,
1021 (1977) (holding that generally, only a person injured by
a statute can challenge its constitutionality).
We nevertheless address one of Escalante-Orozco's
arguments to provide guidance in other cases. In Hall v.
Florida, 134 S.Ct. 1986, 2001 (2014), the Supreme Court
held that Florida's definition of intellectual disability
as requiring an IQ test score of seventy or less, without
considering any margin of error, violated the Eighth
Amendment. Section 13-753(K)(5) requires courts to consider
the margin of error when determining a defendant's IQ.
But in State v. Roque, this Court stated, without
citing any authority, that "the statute accounts for
margin of error by requiring multiple tests, " and that
"[i]f the defendant achieves a full-scale score of 70 or
below on any one of the tests, then the court proceeds to a
hearing." 213 Ariz. 193, 228 ¶ 150, 141 P.3d 368,
403 (2006) (citation omitted). Escalante-Orozco argues that
Roque's view that margin of error is accounted
for by conducting multiple tests rather than considering the
margin of error for each test makes subsection (F)
unconstitutional under Hall because it results in a
Roque incorrectly described § 13-753(K)(5).
First, the provision's plain language provides that
courts must consider the margin of error for each IQ test,
regardless of the number of tests. See A.R.S. §
13-753(K)(5) (requiring the court to "take into account
the margin of error for the test administered"). This is
consistent with established medical practices. See
Hall, 134 S.Ct. at 1995 ("The professionals who
design, administer, and interpret IQ tests have agreed, for
years now, that IQ test scores should be read not as a single
fixed number but as a range. Each IQ test has a 'standard
error of measurement . . . .'" (citation omitted)).
Second, if § 13-753(K)(5) is interpreted as
Roque suggested, § 13-753(F) would violate the
Eighth Amendment by setting a full-scale score of seventy as
a cutoff without considering the margin of error for each
individual test. Our interpretation avoids this
The trial court here considered the margin of error for each
IQ score. Therefore, Roque's mistaken
interpretation of § 13-753(K) did not adversely affect
Escalante-Orozco. As occurred in this case, courts should
consider the margin of error for each IQ score regardless of
the number of tests administered.
Definition of adaptive behavior
Section 13-753(K)(1) defines "adaptive behavior" as
"the effectiveness or degree to which the defendant
meets the standards of personal independence and social
responsibility expected of the defendant's age and
cultural group." This definition requires an
"overall assessment of the defendant's ability to
meet society's expectations of him" and differs from
a clinical definition, which bases an impairment in adaptive
functioning on deficits in at least two life-skill categories
without considering strengths. See State v. Grell,
212 Ariz. 516, 529 ¶ 62, 135 P.3d 696, 709 (2006)
("Grell II"); see also State v. Boyston,
231 Ariz. 539, 547 ¶ 34, 298 P.3d 887, 895 (2013).
Escalante-Orozco and Amicus argue that Arizona's
definition of "adaptive behavior" violates the
Eighth Amendment and Hall by deviating from the
medical definition. Hall noted that "[t]he
legal determination of intellectual disability is distinct
from a medical diagnosis, " although the legal
determination "is informed by the medical
community's diagnostic framework." 134 S.Ct. at
2000; see also Kansas v. Crane, 534 U.S. 407, 413
(2002) ("[T]he science of psychiatry . . . informs but
does not control ultimate legal determinations..").
Section 13-753(K)(1) is "similar in overall
meaning" to the clinical definition. Grell II,
212 Ariz. at 529 ¶ 62, 135 P.3d at 709. And the required
"overall assessment" permits consideration of
deficits in the life-skill categories identified by medical
clinicians. Id. Arizona's failure to precisely
align its definition of adaptive behavior with the prevailing
medical definition does not violate the Eighth Amendment.
Cf. Hooks v. Workman, 689 F.3d 1148, 1172 (10th Cir.
2012) (concluding that a court is not constitutionally
required to consider adaptive deficits and ignore strengths);
Ortiz v. United States, 664 F.3d 1151, 1168-69 (8th
Cir. 2011) (noting that while "the mental health
community may ignore an individual's strengths when
looking at adaptive functioning, presumably as a function of
its role in providing support and services to impaired
individuals, the law makes a holistic view of an individual,
recognizing that a few reported problems may not negate an
inmate's ability to function in other ways"
(internal quotes and interlineations omitted)).
Standard of proof
In Grell II, this Court concluded that the
predecessor to § 13- 753(G), which places the burden on
a defendant in a pretrial inquiry to prove intellectual
disability by clear and convincing evidence, is
constitutional. 212 Ariz. at 521-25 ¶¶ 21-41, 135
P.3d at 701-06. Escalante-Orozco and Amicus urge us to
revisit that decision, but we decline to do so here. Because
the murder took place before August 1, 2002, we independently
review whether a preponderance of the evidence establishes an
intellectual disability. See State v. Grell, 231
Ariz. 153, 155 ¶ 10, 291 P.3d 350, 352 (2013)
("Grell III"). Thus, even if we assume
that § 13-753(G) is unconstitutional and the pretrial
ruling was flawed, it would not make a difference here.
Failure to hold competency hearing
The State asked for a Rule 11 competency evaluation. Three
psychologists evaluated Escalante-Orozco, and one found him
incompetent to stand trial. The parties stipulated to submit
the competency issue to the court based on the expert
reports. See Ariz. R. Crim. P. 11.5(a) (providing
that when a hearing would otherwise be required to determine
a defendant's competency, the parties may "by
written stipulation, submit the matter on the experts'
reports"). The trial court found that Escalante-Orozco
was competent to stand trial.
Escalante-Orozco argues that the court violated his rights to
due process and a fair trial by not holding a competency
hearing because one expert report raised more than a
"doubt" about his competency. See State v.
Cornell, 179 Ariz. 314, 322-23, 878 P.2d 1352, 1360-61
(1994) (requiring a hearing when there is a "good faith
doubt about the defendant's ability . . . to participate
intelligently in the proceedings" (internal quotations
omitted)). Escalante-Orozco's stipulation precludes his
challenge. See State v. Pandeli, 215 Ariz. 514, 528
¶ 50, 161 P.3d 557, 571 (2007) (discussing the invited
error doctrine). Such stipulations are "entirely in
accord with due process." State v. Contreras,
112 Ariz. 358, 359, 542 P.2d 17, 18 (1975) (citing
predecessor statute to Rule 11.5(a)); see also State v.
Bates, 111 Ariz. 202, 203, 526 P.2d 1054, 1055 (1974)
(concluding trial court did not err by failing to hold a
competency hearing because the parties stipulated to submit
the issue to the court based on expert reports).
Motion to suppress statements to police
Escalante-Orozco argues that statements he made to Phoenix
Police Detective Julio Caraballo in a videotaped interview in
Idaho were inadmissible because (a) the detective did not
properly advise Escalante-Orozco of his Miranda
rights, and (b) officers violated Article 36 of the Vienna
Convention on Consular Relations ("VCCR"). We
review a trial court's denial of a motion to suppress for
an abuse of discretion, considering only evidence admitted at
the suppression hearing and viewing it in the light most
favorable to sustaining the ruling. State v. Wilson,
237 Ariz. 296, 298 ¶ 7, 350 P.3d 800, 802 (2015).
Constitutional issues, however, are reviewed de novo.
State v. Moody, 208 Ariz. 424, 445 ¶ 62, 94
P.3d 1119, 1140 (2004).
Use of "licenciado"
Detective Caraballo read Escalante-Orozco his
Miranda rights from a Spanish-language form that
accurately translated "attorney" as
"abogado." When asked, Escalante-Orozco replied he
understood his rights. Detective Caraballo nevertheless
questioned Escalante-Orozco about the role of an attorney to
ensure he understood it. In doing so, the detective once
translated "attorney" as "licenciado."
Escalante-Orozco argues that he did not properly waive his
Miranda rights because Detective Caraballo's use
of "licenciado" was confusing and inadequately
conveyed the right to have an attorney present before and
The trial court found that although "licenciado"
primarily means a university graduate and, secondarily, a
lawyer, and Escalante-Orozco "appeared confused" on
the videotape by the words, the totality of the circumstances
demonstrated that the Miranda warnings were
adequate. See State v. Rivera, 152 Ariz. 507, 513,
733 P.2d 1090, 1096 (1987) (holding that to determine
adequacy of warnings, court looks to the totality of the
circumstances, including a defendant's "background,
experience and conduct" (citation omitted)). The court
did not err.
¶24 Detective Caraballo's single
use of "licenciado" was neither misleading nor
inaccurate. Cf. United States v. Botello-Rosales,
728 F.3d 865, 867 (9th Cir. 2013) (use of the Spanish word
"libre" to indicate an attorney would be
"free" or without cost rendered Miranda
warnings inadequate because "libre" means being
available or at liberty to do something); United States.
v. Perez-Lopez, 348 F.3d 839, 848-49 (9th Cir. 2003)
(Spanish-language Miranda warning that the defendant
had the right to "solicit" the court for an
attorney found "constitutionally infirm because it did
not convey to him the government's obligation to appoint
an attorney for indigent accused").
"Licenciado" is a synonym for "abogado."
See Merriam-Webster Online Spanish-English
translate/licenciado (last visited Nov. 10, 2016). Even if
Escalante-Orozco was not familiar with the term, the
detective used it only once and used "abogado"
several times. And Escalante-Orozco stated that he understood
his rights before the detective used the word
"licenciado." Any confusion encountered by
Escalante-Orozco was further minimized because a federal
agent had given Miranda warnings the previous day
and used the word "abogado."
Description of attorney's role
Detective Caraballo described an attorney as someone who
could represent Escalante-Orozco "in front of the court,
" "in front of the jury, " and "in front
of the case that is in front [sic]." Escalante-Orozco
contends that this description was misleading, confusing, and
nonsensical and incorrectly implied that he would only be
provided an attorney at court. Escalante-Orozco also argues
that the initial, accurate advisory did not cure the error
because he had a fundamental misunderstanding of the role of
an attorney that was only made worse by Detective
Caraballo's use of "licenciado."
The trial court did not err in its ruling. The detective
accurately informed Escalante-Orozco that he had "the
right to have an attorney present before and during the
questions if [he] desire[d], " and told him that an
attorney would be appointed for him if he could not afford
one. Escalante-Orozco stated that he understood these rights.
The detective's subsequent description of an attorney was
not inconsistent with the advisory given and, in context, was
reasonably viewed as a general description of an
attorney's role rather than a repudiation of the
just-explained right to have that person present before and
during questioning. Cf. Duckworth v. Egan, 492 U.S.
195, 203-05 (1989) (telling a suspect he would be appointed
an attorney "if and when [he went] to court" did
not render Miranda warning inadequate because
officer initially conveyed that defendant had a right to
counsel before the police asked him questions and could stop
answering any time to talk to an attorney); California v.
Prysock, 453 U.S. 355, 360-62 (1981) (failing to
explicitly state that counsel would be appointed before
questioning did not invalidate a Miranda advisory
when suspect was informed of his right to have an attorney
present during questioning and his right to counsel appointed
at no cost). Escalante-Orozco also demonstrated an
understanding that he could immediately confer with an
attorney by stating that an attorney was someone "to see
. . . why you guys have me here" and "to ask you
why I'm here."
Escalante-Orozco argues that the State failed to prove that
he knowingly and intelligently waived his Miranda
rights because he suffered from an intellectual disability,
was poorly acculturated, and had limited knowledge of the
American legal system.
Escalante-Orozco's waiver was knowing and intelligent if
he understood his rights and intended to waive them. See
State v. Naranjo, 234 Ariz. 233, 238 ¶ 7, 321 P.3d
398, 403 (2014). To determine the validity of a waiver,
courts examine the totality of circumstances, "including
the defendant's background, experience, and conduct,
" to decide the validity of the waiver. Id.
(citation omitted). Mental illness, low intelligence, or poor
linguistic abilities, standing alone, do not invalidate an
otherwise knowing and intelligent waiver. See id. at
238 ¶ 8; State v. Carrillo, 156 Ariz. 125, 134,
750 P.2d 883, 892 (1988).
The suppression hearing record supports the trial court's
ruling that Escalante-Orozco knowingly and intelligently
waived his Miranda rights. He was interviewed in
Spanish, he was twice read his rights in Spanish, he
indicated he understood his rights, and he freely answered
all questions. From the videotape, he appears to respond
appropriately to questions. Detective Caraballo testified
that he "had no doubt that [Escalante-Orozco] . . .
understood his rights." Although medical expert Dr.
Francisco Gomez opined that Escalante-Orozco did not
understand his Miranda rights, the trial court was
free to disregard this opinion. Cf. State v. Hyde,
186 Ariz. 252, 276, 921 P.2d 655, 679 (1996) (concluding that
expert psychological testimony is "not appropriate . . .
to show the actual mental state of a defendant at a given
Escalante-Orozco argues that officers violated Article 36 of
the VCCR and, as part of the totality of the circumstances,
this violation prevented him from making a knowing and
intelligent waiver of his Miranda rights. Article 36
requires authorities to advise a foreign national detainee
"without delay" of the detainee's right to
request that the consulate be advised of the detention.
See Sanchez-Llamas v. Oregon, 548 U.S. 331, 338-39
(2006). Authorities informed Escalante-Orozco of this right
on May 3, 2007, the day after federal agents detained him and
Detective Caraballo interrogated him. The record does not
reflect whether Escalante-Orozco asked authorities to notify
the Mexican consulate of his detention, but they did so a
week after the arrest.
We need not decide whether authorities violated the VCCR. The
remedy for a violation of Article 36 of the VCCR is not
suppression of a foreign national's otherwise admissible
statements. Sanchez-Llamas, 548 U.S. at 349-50. And
even if we assume that Escalante-Orozco would have exercised
his consular rights if he had been informed of them before
his interrogation, Detective Caraballo was entitled to
proceed with the interrogation when he did. See id.
at 349 (stating that Article 36 "has nothing whatsoever
to do with . . . interrogations" and "secures only
a right of foreign nationals to have their consulate
informed of their arrest or detention-not to have
their consulate intervene, or to have law enforcement
authorities cease their investigation pending any such notice
or intervention"); see also Consular
Notification and Access 21 (4th ed. 2014).
Escalante-Orozco nevertheless argues that a VCCR violation is
relevant in determining whether a Miranda waiver was
knowing and intelligent, and the trial court erred by failing
to consider that violation as part of the totality of the
circumstances. He relies on Sanchez-Llamas'
statement that "[a] defendant can raise an Article 36
claim as part of a broader challenge to the voluntariness of
his statements to police." 548 U.S. at 350. But
Miranda violations and voluntariness are separate
inquiries. Compare State v. Tapia, 159 Ariz. 284,
286, 767 P.2d 5, 7 (1988) ("The necessity of giving
Miranda warnings relates to the admissibility of a
confession based upon defendant's being apprised of his
right to counsel and waiving that right and not to its
voluntariness."), with In re Andre M., 207
Ariz. 482, 484 ¶ 7, 88 P.3d 552, 554 (2004) (noting that
voluntariness concerns whether a statement was given as a
result of intimidation, coercion, or deception). While a
violation of the VCCR might bear on whether a defendant was
intimidated or coerced, it would have no bearing on whether
the defendant had been apprised of his right to counsel and
made a knowing and voluntary waiver.
Jury selection issues
argues that the trial court erred by imposing a five-minute
time limit for counsel's questions to individual
prospective jurors, which impaired his right to a fair and
impartial jury under the state and federal constitutions. To
prevail on his argument, Escalante-Orozco must
"demonstrate not only that the voir dire examination was
inadequate, but also that, as a result of the inadequate
questioning, the jury selected was not fair, unbiased, and
impartial." See Moody, 208 Ariz. at 451 ¶
95, 94 P.3d at 1146. We review the court's decision to
impose the time limit for an abuse of discretion. See
State v. Forde, 233 Ariz. 543, 560 ¶ 53, 315 P.3d
1200, 1217 (2014).
reject Escalante-Orozco's argument. The trial court is
authorized to "control the voir dire" but must
permit a party, upon request, to examine jurors for "a
reasonable time." Ariz. R. Crim. P. 18.5(d). Even if the
time afforded was insufficient, Escalante-Orozco fails to
demonstrate that the jury seated was not fair, unbiased, and
impartial. See Moody, 208 Ariz. at 451 ¶ 95, 94
P.3d at 1146. The parties questioned jurors over the course
of five trial days. And despite the five-minute time limit,
the court posed appropriate follow-up questions to jurors
beyond the time limit to ensure that jurors were unbiased.
Escalante-Orozco challenges the State's preemptory
strikes of Jurors 17, 36, 61, 71, and 88, all of whom are
racial minorities. See Batson v. Kentucky, 476 U.S.
79, 89 (1986) (holding that the use of preemptory strikes to
exclude jurors based on their race violates the Fourteenth
Amendment's Equal Protection Clause). A trial court uses
a three-step analysis to decide a Batson challenge.
State v. Newell, 212 Ariz. 389, 400 ¶ 53, 132
P.3d 833, 844 (2006). The defendant initially must make a
prima facie showing that the strike was racially
discriminatory. Id. If this showing is made, the
prosecutor must provide a race-neutral rationale for the
strike. Id. If the prosecutor provides this
rationale, the trial court must decide whether "the
defendant has established purposeful discrimination."
Id. (quoting Batson, 476 U.S at 93-94). We
will uphold the court's ruling unless it was clearly
erroneous. Id. at 400 ¶ 52, 132 P.3d at 844.
The trial court's ruling was not clearly erroneous. The
prosecutor offered a race-neutral rationale by explaining
that he struck the contested jurors because their
questionnaire answers indicated either opposition to the
death penalty or potential reluctance in imposing the death
penalty if warranted. He also cited Juror 36's answer
that graphic and disturbing photographs would make it
difficult for him to be fair and impartial. He further
expressed concern that Juror 71's job as a high school
teacher could influence her. (The prosecutor also stated that
Juror 71 was inattentive, but the court did not share this
observation so made "no finding of that.") The
questionnaire answers bear out the prosecutor's factual
assertions, and we defer to the trial court's assessment
of the prosecutor's credibility in explaining his
strikes. Cf. State v. Hardy, 230 Ariz. 281, 285
¶ 12, 283 P.3d 12, 16 (2012) (stating that "the
trial court evaluates the striking party's credibility,
considering the demeanor of the striking attorney and the
excluded juror to determine whether the race-neutral
rationale is a pretext for discrimination"). And one
minority juror remained on the jury. Cf. id.
("Although not dispositive, the fact that the state
accepted other minority jurors on the venire is indicative of
a nondiscriminatory motive." (citation omitted)).
Escalante-Orozco faults the trial court for failing to
"conduct a cross-comparison analysis of the struck and
non-struck jurors." See Miller-El v. Dretke,
545 U.S. 231, 241 (2005) ("If a prosecutor's
proffered reason for striking a black panelist applies just
as well to an otherwise-similar nonblack who is permitted to
serve, that is evidence tending to prove purposeful
discrimination to be consider at Batson's third
step."). But Escalante-Orozco failed to raise this
argument to the trial court, meaning "the prosecutor had
no opportunity to offer distinctions between allegedly
similarly situated jurors or to clarify which factors were
given more weight in the choice to strike, " and
"the trial court did not have an opportunity to conduct
an in-depth comparison of the jurors who were stricken and
those who remained on the panel." See State v.
Medina, 232 Ariz. 391, 405 ¶ 49, 306 P.3d 48, 62
(2013). Defense counsel offered no counter to the
prosecutor's explanations other than to contend that the
prosecutor had failed to prove race-neutral reasons for his
strikes and that Juror 36's aversion to graphic
photographs was not unique. We will not examine more detailed
comparisons than were presented to the trial court.
Escalante-Orozco contends that the trial court's act in
granting five potential jurors' requests for recusal due
to their limited English language skills resulted in a
systemic exclusion of non-English speakers from jury service
in violation of the federal and state constitutions. We
disagree. Section21-202(B)(3) requires the trial court to
grant a person's recusal request if "[t]he
prospective juror is not currently capable of understanding
the English language." See also State v.
Morris, 215 Ariz. 324, 334 ¶ 42, 160 P.3d 203, 213
(2007) (holding that judges have broad discretion to excuse
jurors from service). For reasons explained in previous
cases, § 21-202(B)(3) does not violate a defendant's
constitutional rights. See State v. Rose, 231 Ariz.
500, 504-05 ¶ 11, 297 P.3d 906, 910-11 (2013); State
v. Cota, 229 Ariz. 136, 143 ¶¶ 13-16, 272 P.3d
1027, 1034 (2012); State v. Cordova, 109 Ariz. 439,
441, 511 P.2d 621, 623 (1973); see also Duren v.
Missouri, 439 U.S. 357, 367-68 (1979) (holding that the
Constitution is not violated if "a significant state
interest" is "manifestly and primarily advanced by
those aspects of the jury-selection process . . . that result
in the disproportionate exclusion of a distinctive
group"). We decline to revisit those holdings.
Escalante-Orozco contends that the trial court violated his
right to a fair and impartial jury under the federal and
state constitutions by failing to sua sponte excuse Juror 92,
an office assistant employed by the Maricopa County Medical
Examiner's Office. He argues that Juror 92 likely knew
both Dr. Marco Ross, a witness who was formerly employed by
the Medical Examiner's Office, and the author (who was
not identified) of a report on which Dr. Ross relied that
originated from that office.
Because Escalante-Orozco did not object to seating Juror 92,
we review for fundamental error. State v. Henderson,
210 Ariz. 561, 567 ¶ 19, 115 P.3d 601, 607 (2005). A
fundamental error is error that goes to the foundation of the
case, takes from the defendant a right that is essential to
his defense, and is of such magnitude that the defendant
could not possibly have received a fair trial. Id.
Escalante-Orozco bears the burden of proving that the error
was fundamental and that the error prejudiced him.
Section 21-211 requires disqualification of "[p]ersons
interested directly or indirectly in the matter under
investigation." The record does not reflect that Juror
92 had such an interest. Juror 92 did not indicate in the
jury questionnaire that she knew Dr. Ross, and
Escalante-Orozco did not question her about it. He speculates
that it was "likely" that Dr. Ross and Juror 92 had
contact and that she "may have known" the unknown
author of the medical examiner's report, but the record
does not establish this likelihood. Juror 92's position
as an office assistant does not suggest that she had contact
with Dr. Ross or the unknown report author. And because Dr.
Ross left the medical examiner's office, at the latest,
in 2002 and Juror 92 started there in 2010, we know they did
not simultaneously work there. Significantly, Juror 92 said
she could treat the case fairly and impartially despite her
work at the medical examiner's office.
This case is unlike State v. Eddington, 228 Ariz.
361, 364 ¶¶ 11- 13, 266 P.3d 1057, 1060 (2011), in
which a deputy sheriff employed by the law enforcement agency
that investigated the crime was disqualified from sitting on
the jury because he was potentially interested in the outcome
of the case. This Court reasoned that disqualification was
warranted because the sheriff's office and the prosecutor
shared an interest in "advocating for a
conviction." Id. at 364 ¶ 11, 266 P.3d at
1060. A medical examiner's office, however, does not
share such an interest with the prosecution.
The trial court did not commit fundamental error by failing
to sua sponte disqualify Juror 92.
Guilt Phase Issues
Motion to suppress
Escalante-Orozco argues that the trial court erred by denying
his motion to preclude DNA evidence. We review the
court's ruling for an abuse of discretion, considering
only evidence admitted at the suppression hearing and viewing
it in the light most favorable to sustaining the ruling.
Wilson, 237 Ariz. at 298 ¶ 7, 350 P.3d at 802.
Sperm fraction from Maria's nightshirt
Phoenix Police Department Crime Lab analyst Kathleen Stoller
obtained a mixed Y-STR profile from sperm on Maria's
nightshirt, with the major part matching an unknown male and
the minor part "matching" Escalante-Orozco's
DNA profile at five loci (specific locations of genes on
chromosomes). (A Y-STR profile is one that excludes a female
DNA profile.) She testified at the suppression hearing that
the same Y-STR profile would be expected in all
Escalante-Orozco's paternal relatives and in one in
thirty-four southwestern Hispanics.
Escalante-Orozco argues that Stoller's opinions were
unreliable and therefore inadmissible because she relied on a
"match" at one locus that fell below the threshold
for identifying an allele set by the police department's
protocol guidelines. See Ariz. R. Evid. 702
(providing that admissible expert opinion must be "the
product of reliable principles and methods"). He points
out that Stoller obtained below-threshold results for other
alleles that she did not use for statistical purposes,
casting further doubt on her reliance on one below-threshold
The State demonstrated that Stoller's DNA interpretation
technique was sufficiently reliable. She testified that the
guidelines permitted her to use the below-threshold allele
for statistical purposes because its measurement was greater
than three times the "baseline noise" in the graph
generated by the device used to analyze genetic material. Her
testimony was corroborated by the Department's protocol
guidelines. And the widely accepted Scientific Working Group
on DNA Analysis Methods ("SWGDAM") Guidelines
acknowledge that the threshold is malleable.
Escalante-Orozco further contends that Evidence Rule 403
required suppression because the Y-STR profile would be
expected in one in thirty-four southwestern Hispanics,
meaning its probative value was substantially outweighed by
the danger of unfair prejudice or misleading the jury. Unfair
prejudice is an "undue tendency to suggest decision on
an improper basis, such as emotion, sympathy or horror."
State v. Mott, 187 Ariz. 536, 545, 931 P.2d 1046,
1055 (1997). The DNA evidence does not fall within this
category. And the evidence was not misleading. Stoller
testified that the Y-STR profile could be found in others,
and the jury could readily understand this limitation and
give the evidence whatever weight it deserved.
"Included, " "not excluded, " and
Escalante-Orozco argues that the trial court erred by denying
his pretrial motion to preclude Stoller from using the words
"included" and "not excluded"
interchangeably in relation to DNA evidence because it would
mislead and confuse the jury. We disagree. Stoller testified
at a pretrial hearing that "included" and "not
excluded" mean the same thing. The court did not abuse
its discretion by crediting this testimony. This case is
unlike Duncan v. Kentucky, 322 S.W.3d 81 (Ky. 2010),
relied on by Escalante-Orozco, in which the Kentucky Supreme
Court reversed convictions in part because the prosecutor
mischaracterized an expert's testimony that the defendant
could not be excluded as a source of DNA found in the
victim's panties as meaning that the defendant was the
source of that DNA. Id. at 91-92. That did not occur
We also reject Escalante-Orozco's argument that the court
erred by permitting Stoller to use the word "match"
to describe DNA profiles consistent with his because it was
likely to mislead jurors to believe he was the source of the
profile rather than a possible source. Stoller explained at
trial that her use of the word ...