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State v. Escalante-Orozco

Supreme Court of Arizona

January 12, 2017

State of Arizona, Appellee/Cross-Appellant,
v.
Joel Randu Escalante-Orozco, Appellant/Cross-Appellee.

         Appeal from the Superior Court in Maricopa County The Honorable Warren J. Granville, Judge No. CR 2007-008288

         AFFIRMED IN PART, REVERSED AND REMANDED IN PART

          Mark 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 Escalante-Orozco

          David 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.

          OPINION

          TIMMER, JUSTICE

         ¶1 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.[1] 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.

         BACKGROUND [2]

         ¶2 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.

         ¶3 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 apartment.

         ¶4 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.

         ¶5 After waiving his Miranda[[3]] 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.

         ¶6 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[[4]] 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 intellectual disability.

         ¶7 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 counts, respectively.

         DISCUSSION

         I. Appeal and cross-appeal

         A. Pretrial Issues

         1. Constitutionality of Arizona's framework for determining intellectual disability

         ¶8 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).

         ¶9 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).

         ¶10 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.

         (a) IQ score cutoff

         ¶11 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.

         ¶12 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).

         ¶13 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 bright-line cutoff.

         ¶14 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 unconstitutional result.

         ¶15 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.

         (b) Definition of adaptive behavior

         ¶16 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).

         ¶17 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)).

         (c) Standard of proof

         ¶18 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.

         2. Failure to hold competency hearing

         ¶19 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.

         ¶20 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).

         3. Motion to suppress statements to police

         ¶21 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).

         (a) Miranda warnings

         (1) Use of "licenciado"

         ¶22 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 during questioning.

         ¶23 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 Dictionary, http://www.spanishcentral.com/ 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."

         (2) Description of attorney's role

         ¶25 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."

         ¶26 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."

         (3) Waiver

         ¶27 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.

         ¶28 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).

         ¶29 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 time").

         (b) The VCCR

         ¶30 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.

         ¶31 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).

         ¶32 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.

         B. Jury selection issues

         1. Time limits

         ¶33Escalante-Orozco 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).

         ¶34We 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.

         2. Batson challenges

         ¶35 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.

         ¶36 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)).

         ¶37 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. Id.

         3. Hardship recusals

         ¶38 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.

         4. Juror 92

         ¶39 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.

         ¶40 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. Id.

         ¶41 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.

         ¶42 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.

         ¶43 The trial court did not commit fundamental error by failing to sua sponte disqualify Juror 92.

         C. Guilt Phase Issues

         1. DNA Evidence

         (a) Motion to suppress

         ¶44 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.

         (1) Sperm fraction from Maria's nightshirt

         ¶45 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.

         ¶46 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 allele.

         ¶47 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.

         ¶48 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.

         (2) "Included, " "not excluded, " and "match"

         ¶49 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 here.

         ¶50 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 ...


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