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State v. Rushing

Supreme Court of Arizona

November 6, 2017

State of Arizona Appellee,
Jasper Phillip Rushing, Appellant.

         Appeal from the Superior Court in Maricopa County The Honorable Michael W. Kemp, Judge No. CR2010-007882

          Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor General, Lacey Stover Gard, Chief Counsel, Capital Litigation Section, Tucson, Ginger Jarvis (argued), Assistant Attorney General, Phoenix, Attorneys for State of Arizona.

          Sharmila Roy (argued), Laveen, Attorney for Jasper Phillip Rushing.

          JUSTICE TIMMER authored the opinion of the Court, in which CHIEF JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES BRUTINEL, BOLICK, GOULD, and BERCH (Retired) [*] joined.



         ¶1 Jasper Phillip Rushing was sentenced to death after a jury found him guilty of first degree murder. We have jurisdiction over this automatic appeal under article 6, section 5(3) of the Arizona Constitution and A.R.S. § 13-4031.[1] We affirm Rushing's conviction. To comply with the United States Supreme Court's decision in Lynch v. Arizona, 136 S.Ct. 1818 (2016) ("Lynch II"), we vacate the death sentence and remand for a new penalty phase proceeding.


         ¶2 In August 2010, Rushing and victim Shannon P. were imprisoned in the Lewis Prison Complex. They were temporarily housed together in an isolation cell after each expressed safety concerns with his prior assigned housing. The cell was designed for one person. It had one bed, but prison staff provided a floor mattress so each man had a place to sleep.

         ¶3 On September 10, Rushing killed Shannon while in their cell. There were no witnesses. Corrections officer Joel Valdovinos said nothing seemed unusual when he conducted hourly welfare checks of the inmates that morning. And when Rushing was temporarily removed from the cell around 10:30 a.m. for a prisoner count, he was calm and pleasant.

         ¶4 Just before 1:00 p.m., Valdovinos opened the "food trap" in the cell door to serve lunch. He could not see inside the cell because it was dark, as it had been all morning. An investigator later determined that the cell light was broken. Rushing "put his face to the trap" and said, "you have to call IMS [the "inmate management system"]. I think I just killed my cellie." Valdovinos asked if Rushing was being serious or lying, and Rushing replied, "No . . . I beat him up and I think I killed him." Using a flashlight, Valdovinos illuminated the cell and saw Shannon lying on the bed with a "large gash in his throat." Valdovinos asked Rushing what weapon he had used to inflict the injuries, and Rushing said he used "a razor blade he had on the sink."

         ¶5 Valdovinos immediately called for help, and then told Rushing to turn around so he could cuff him through the trap door. Rushing responded, "can I have a sip of coffee real quick?" After Valdovinos replied, "[n]o dude . . . . Look at what you just did, man, " Rushing nevertheless "took a sip . . . turned around, put his hand[s] through the trap, " and Valdovinos handcuffed him.

         ¶6 After more officers arrived, Rushing was removed from the cell. According to an officer, Shannon was found unconscious but alive, lying face up on the bunk with his throat "clearly" cut and "his head and his left arm kind of draped over on the ground." His "face had been smashed in . . . like he had been bludgeoned. His no[se] was flattened out against his head." His severed penis was found on the floor. Shannon could not be resuscitated, and he died en route to the hospital. A medical examination later determined Shannon died from "blunt force and sharp force injury, " but could not identify the order of injuries to his head, face, neck, and penis.

         ¶7 Two weapons were found in the cell: (1) a bloody disposable razor, wrapped on one end with cellophane to form a handle, and (2) a thick, rolled-up, soft-cover book contained within a sock, which, in turn, had been wrapped in a sheet.

         ¶8 The State indicted Rushing on one count of premeditated first degree murder pursuant to A.R.S. § 13-1105 and sought the death penalty. That Rushing killed Shannon was not contested at trial; the only issue was whether he did so with premeditation. The jury found Rushing guilty as charged. In the aggravation phase, the jury found three aggravating factors: (1) Rushing had been previously convicted of another offense for which life imprisonment or death could be or had been imposed, see A.R.S. § 13-751 (F)(1); (2) Rushing committed the offense in an especially heinous or depraved manner, see id. § 13-751(F)(6); and (3) Rushing committed the offense while in the custody of the state department of corrections, see id. § 13-751(F)(7)(a). After considering mitigation evidence, the jury determined that Rushing should be sentenced to death.


         A. Guilt Phase

         1. The Trujillo statement

         ¶9 After officers responded to Valdovinos's request for help, they removed the handcuffed Rushing from the cell. Without first advising Rushing of his Miranda rights, corrections officer Trujillo asked him "what he had used to assault [Shannon]." Rushing answered that he had used "rolled up magazines to beat [Shannon] unconscious and then used a razor blade with a small handle to cut his neck and to cut off the penis" (hereafter, the "Trujillo statement").

         ¶10 Before trial, Rushing moved to suppress the Trujillo statement, arguing it was made involuntarily and obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966). The prosecutor responded that she did not intend to call Trujillo as a witness. Relying on this avowal, the trial court considered the matter moot and did not decide the statement's admissibility.

         ¶11 During the trial's guilt phase, corrections Sergeant Damian Ryan testified he heard Rushing "talking about the assault" with an unnamed officer soon after Rushing was pulled from the cell. Neither the prosecutor nor defense counsel asked Ryan to relate what he had overheard. But, without objection, the trial court posed a juror's question, which elicited the Trujillo statement:

The Court: Did you hear anything that Mr. Rushing said while he was in your presence and, if so, what was said?
[Ryan]: I'd have to refer to my report. I heard Mr. Rushing say, I hit him with a roll of magazines until I knocked him out and then I cut his throat and cut his dick off. He then said the razor blade was on the sink.

         The prosecutor and defense counsel each asked follow-up questions confirming what Ryan overheard. Also, without objection, the prosecutor later elicited an opinion from Dr. John Hu, the medical examiner who conducted the autopsy, that the order of injuries described in the Trujillo statement was consistent with Shannon's wounds. Finally, the prosecutor referred to the Trujillo statement repeatedly during closing argument to argue that the murder was premeditated - the only issue at trial.

         a. Standard of review

         ¶12 Rushing argues that the trial court violated his Fifth Amendment rights by admitting the Trujillo statement. The State does not dispute that introducing the statement was error. The parties disagree, however, on whether the error should be evaluated under the fundamental error or harmless error standard of review.

         ¶13 The State argues that Rushing waived the issue by failing to object to the juror's question, and fundamental error review is therefore appropriate. The State alternatively argues that Rushing "invited any possible error by agreeing to permit the trial court to ask the juror's question that led to Sergeant Ryan's answer." Rushing contends he preserved his objection through the motion to suppress, and harmless error review is therefore warranted.

         ¶14 Rushing did not invite the error. The invited error doctrine prevents a party from injecting error into the record and then profiting from it on appeal. State v. Logan, 200 Ariz. 564, 566 ¶ 11 (2001). Defense counsel did not inject the error here by asking Ryan to relate what he had overheard. A juror posed that question to the trial judge, who asked it of Ryan. Defense counsel's failure to object to the question constitutes waiver, not invited error.

         ¶15 Although Rushing moved pre-trial to prevent the State from introducing the Trujillo statement, the court did not rule on the merits, as the State disclaimed any intent of offering the statement. But even if the trial court had ruled on the motion to suppress, Rushing needed to object to the juror's question to preserve the issue for appeal. The earlier motion preserved Rushing's objection to the prosecution introducing the contested statement. But the prosecutor did not elicit the statement from Sergeant Ryan; a juror did through the judge. When the judge read the proposed juror question to counsel for both sides outside the jury's hearing, defense counsel was required to raise any objection then, but he did not. Cf. Matchett v. State, 364 S.E.2d 565, 567 (Ga. 1988) (concluding that while questions directly from a juror to a witness are generally not permitted in Georgia, appellant's failure to object waived the issue); Handy v. State, 30 A.3d 197, 211 (Md. Ct. Spec. App. 2011) (concluding that the failure to object to a juror question waives the issue on appeal).

         b. Merits

         ¶16 "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." State v. Escalante-Orozco, 241 Ariz. 254, 272 ¶ 40 (2017) (citing State v. Henderson, 210 Ariz. 561, 567 ¶ 19 (2005)). The defendant must prove that the error was fundamental and that it prejudiced him. Id.

         ¶17 Focusing on the latter requirement, Rushing argues he was prejudiced by admission of the Trujillo statement because it tended to show premeditation. The medical examiner could not determine the order in which Rushing inflicted Shannon's wounds. Without the Trujillo statement, Rushing asserts, "there was no other evidence before the jury of the order of the blows or more significantly [Rushing's] apparent thought process prior to the assault." According to Rushing, "[w]ithout that statement, the jury could have found [him] guilty of second-degree murder."

         ¶18 Rushing murdered Shannon with premeditation if he acted "with either the intention or the knowledge that he [would] kill another human being, when such intention or knowledge precede[d] the killing by any length of time to permit reflection." A.R.S. § 13-1101(1) (defining premeditation). The murder was not premeditated if it was "the instant effect of a sudden quarrel or heat of passion." Id. The State was required to prove actual reflection but could do so through circumstantial evidence. See State v. Ovante, 231 Ariz. 180, 184 ¶ 14 (2013) ("There is no prescribed period of time which must elapse between the formation of the intent to kill and the act of killing, but the record must at least circumstantially support that a defendant considered his act and did not merely react to an instant quarrel or in the heat of passion."); State v. Thompson, 204 Ariz. 471, 479 ¶ 31 (2003) (noting that the passage of time is one factor among others that can show actual reflection).

         ¶19 Admission of the Trujillo statement was neither fundamental error nor prejudicial. Apart from the statement, the circumstances of the murder sufficiently proved premeditation. Shannon was not killed by a quick strike. Rushing used two weapons -a bludgeon and a razor. He delivered at least four hard blows to Shannon's head and face, made deep cuts on both sides of his neck, and likely spent time completely severing his penis with just a razor (the medical examiner testified it would not have been easy to cut through the penis). The jury could have reasonably concluded that switching weapons, moving to different areas of Shannon's body, and taking the time to remove the penis afforded Rushing sufficient time to reflect on his actions.

         ¶20 There was no evidence of shouting, fighting, or other indications of a sudden quarrel between Rushing and Shannon that might suggest Rushing acted without reflection. Shannon had no defensive wounds, which might have suggested a brawl, and he was found lying on the bed with most of the blood pooled at its head and the adjacent floor. Rushing did not appear distressed immediately after the murder and, indeed, appeared calm and even asked to sip coffee before being handcuffed while Shannon lay gasping for air nearby.

         ¶21 The Trujillo statement did not add much to the premeditation issue. Although Rushing related the order in which he wounded Shannon, this was an after-the-fact recitation of events, not a statement about any pre-attack plan. We fail to see how the statement reflects Rushing's thought process, as he now argues. Indeed, defense counsel argued in closing that the Trujillo statement was only "an acknowledgment of what he did" and "doesn't show any premeditation at the time of the offense at all." And even if the order of wounds is somehow significant to showing premeditation, the jury would have likely concluded that Shannon was initially knocked unconscious before the razor attack, even without the Trujillo statement. There was no blood on the tops or bottoms of Shannon's feet, the blood was confined to the area on and immediately around the bed, and he did not have any defensive wounds. This evidence indicates that Rushing attacked Shannon while he was on the bed. As it is unlikely that Shannon would have remained still while being cut, the most plausible explanation is that he was initially knocked unconscious.

         ¶22 The Trujillo statement also did not unfairly prejudice Rushing's defense theory. Defense counsel claimed that Rushing lacked a motive to kill Shannon but "something set [Rushing] off, " and that this may have been "a case of heat of passion or sudden quarrel." He pointed out that Rushing "went over and beyond what was necessary to kill, " indicating Rushing was "completely out of control." The Trujillo statement, which corroborated the physical evidence, ...

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