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State v. Sanders

Supreme Court of Arizona

September 13, 2018

State of Arizona, Appellee,
v.
Dauntorian Lydel Sanders, Appellant.

          Appeal from the Superior Court in Maricopa County The Honorable Rosa Mroz, Judge No. CR2009-157459

          Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor General, Lacy Stover Gard, Chief Counsel, Andrew S. Reilly (argued), Assistant Attorney General, Capital Litigation Section, Phoenix, Attorneys for State of Arizona

          Michael S. Reeves (argued), Phoenix, Attorney for Dauntorian Lydel Sanders

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

          OPINION

          GOULD JUSTICE

         ¶1 Dauntorian Lydel Sanders was sentenced to death after a jury found him guilty of first degree murder and two counts of child abuse. We have jurisdiction of this automatic appeal pursuant to article 6, section 5(3), of the Arizona Constitution and A.R.S. § 13-4031. We affirm Sanders' convictions and sentences.

         I.

         ¶2 On August 31, 2009, Sanders called 911 to report that his girlfriend's child, three-year-old Schala Vera, was not breathing.[1] A police officer went to the home, and Sanders directed him to an upstairs bathroom, where he found Schala lying on the floor. Schala's mother, Susan Witbracht, was kneeling over her, crying and begging Schala to breathe. The officer observed that Schala's skin was "very light blue in color," her mouth was open, and her eyes were "rolled back in her head." He also noticed that she was "heavily" bruised, particularly between her waist and her knees and from her shoulders to her elbows. The officer performed CPR on Schala until paramedics arrived and transported her to the hospital. The doctors could not revive Schala and she was pronounced dead at the hospital.

         ¶3 Chandler Police Detective Chris Keipert spoke with Sanders at the hospital. Sanders told Detective Keipert that he went to Walgreens to buy cigarettes and left Schala at home with Susan. When he returned to the house to retrieve his wallet, he checked on Schala, who was in the bathroom using the toilet, and "she was fine." He went back to Walgreens and was gone "[f]ive to ten minutes." When he returned home the second time, he checked on Schala again and she wasn't breathing. Sanders could not explain why Schala stopped breathing, claiming there had been no problems other than "the little girl won't eat her dinner."

         ¶4 When Detective Keipert asked Sanders about Schala's bruises, Sanders admitted they were "from when she got a spanking." He said the spanking occurred around 9:00 p.m. the night before and that both he and Susan had spanked Schala with a "cloth-like belt." He claimed that was the last time she had been spanked.

         ¶5 Later that night, and continuing the following day, Detective Ivan Kaminsky interviewed Sanders at the Chandler Police Department. Initially, Sanders essentially repeated the story he had told Detective Keipert. Sanders added, however, that he and Susan had been punishing Schala by spanking her with a belt. He estimated that they would spank Schala "four or five" times "once or twice a week" with either a leather belt or a military belt. He said the discipline began "a couple weeks after" Schala returned to Arizona in late May or early June 2009 after living in Iowa with Susan's relatives for several months.

         ¶6 As the interview continued, Sanders' story changed. Sanders admitted that Schala was hit with a belt on the day of her death. He claimed that Susan struck Schala with a leather belt "maybe three or four" times for "not listening." He also stated that Schala's bruises on both her legs had been there since the Saturday before her death because both he and Susan struck her with a belt that day. Sanders maintained, however, that "[t]he only thing we use is a belt." He also denied hitting Schala with the buckle, because that was the part he held when he was hitting her. Sanders stated that he put tape around the buckle to protect his hand. During a search of the residence, police found a black belt with tape around the buckle on the bathroom counter. Sanders identified the belt as the one he used to strike Schala.

         ¶7 When Detective Kaminsky asked Sanders whose fault it was that Schala was beaten to death, Sanders stated that he would "take full blame" because he's the male and he's "more physical." Sanders also admitted that he "accidentally" hit Schala in the head with the bathroom door when he came home from Walgreens to get his wallet. He stated that he beat Schala shortly before he left for Walgreens because "she just didn't listen at all" and "just kept going." Sanders explained that Schala was supposed to be putting her underwear back on after using the toilet, "but she just sat there" on the bathroom floor. Because she was not listening to him, Sanders started hitting her legs with the belt. She tried to stand up but fell, and he continued to hit her. She then leaned forward with her face between her knees and he struck her on the back.

         ¶8 An autopsy was performed by Maricopa County Medical Examiner Kevin Horn, M.D. Dr. Horn found multiple abrasions on Schala's head and face. The autopsy revealed a subdural hemorrhage under her scalp that was, according to Dr. Horn, caused by "more than just an everyday force." Dr. Horn opined that the injury was similar to injuries caused by a fall from a significant height, a blow to the head, or a motor vehicle accident.

         ¶9 There were additional bruises and abrasions on Schala's torso and above and around her genitalia. Dr. Horn also found abrasions near Schala's left armpit, arms, back, buttocks, and thighs that he identified as "pattern injuries" consistent with a belt.

         ¶10 The most extensive bruising was to Schala's arms and legs. Dr. Horn noted "diffuse contusion" to those areas, meaning the bruises overlapped and "cover[ed] the entire surface." He also noted "very severe swelling of all four of her extremities." In both Schala's arms and legs, Dr. Horn diagnosed rhabdomyolysis, which he explained "is a long way of saying that the muscle has died and fallen apart." He also diagnosed compartment syndrome, which occurs when the muscle swells so much that it cuts off its own blood supply. Dr. Horn testified that compartment syndrome is typically seen in "victims of crushing trauma, like motor vehicle accidents, people that have been pinned in a wreckage" and in "earthquake areas where people have been crushed in buildings." Dr. Horn opined that it was not possible for a belt alone to have caused these injuries; rather, "[significant crushing force" must have caused the injuries to Schala's arms and legs. In his opinion, these injuries showed that Schala must have been squeezed, kicked, punched, and/or thrown against a surface or object in addition to being struck with a belt.

         ¶11 Dr. Horn took tissue samples from Schala's arms and legs and performed an iron stain test to try to determine the age of her bruises. On one section from her right leg he found "very rare microphages and very rare staining for iron" amongst "a sea of red blood cells," indicating "fresh injury possibly over an older injury." Because her legs were so extensively bruised he noted the newer bruises could be masking older bruises.

         ¶12 Ultimately, Schala's cause of death was determined to be "multiple blunt force injuries."

         ¶13 Both Sanders and Susan were charged with first degree murder and four counts of child abuse (Susan's case was later severed from Sanders' case). The trial court later granted the State's motion to dismiss two counts of child abuse.

         ¶14 At trial, the jury found Sanders guilty of first degree murder and two counts of child abuse. In the aggravation phase, the jury found three aggravating factors: (1) Sanders was previously convicted of a serious offense (child abuse), see A.R.S. § 13-751(F)(2); (2) the offense was committed in an especially heinous, cruel or depraved manner, see id. § 13-751(F)(6); and (3) Sanders murdered a child under fifteen years of age, see id. § 13-751(F)(9). Based on evidence that both Sanders and Susan beat Schala, the jury also made an Enmund-Tison finding that Sanders killed Schala. See Enmund v. Florida, 458 U.S. 782, 788 (1982); Tison v. Arizona, 431 U.S. 137, 157-58 (1986). In the penalty phase, after considering the mitigation evidence, the jury determined that Sanders should be sentenced to death. The trial court imposed consecutive presumptive sentences for the child abuse convictions.

         II. Simmons Instruction

         ¶15 Sanders argues the trial court violated his rights under the Sixth, Eighth, and Fourteenth Amendments by instructing the jurors, over his objection, that a life sentence includes the "possibility of release from prison after serving 35 years." See A.R.S. § 13-751(A). Sanders claims that pursuant to Simmons v. South Carolina, 512 U.S. 154 (1994), the trial court reversibly erred by failing to instruct the jury that he was ineligible for release or parole. "We review de novo whether the court properly instructed the jury." State v. Rushing, 243 Ariz. 212, 221 ¶ 36 (2017).

         ¶16 In Simmons, the United States Supreme Court held that if "the defendant's future dangerousness is at issue, and state law prohibits the defendant's release on parole, due process requires that the sentencing jury be informed that the defendant is parole ineligible." 512 U.S. at 156 (plurality opinion); see also id. at 178 (O'Connor, J., concurring). In Kelly v. South Carolina, 534 U.S. 246, 248 (2002), the Court stated that a defendant's future dangerousness is at issue if it is "'a logical inference from the evidence,' or was 'injected into the case through the State's closing argument.'" Id. at 252 (quoting State v. Kelly, 540 S.E.2d 851, 857 (S.C. 2001)); see also State v. Escalante-Orozco, 241 Ariz. 254, 285 ¶ 119 (2017) (holding that the "prosecutor [does] not have to explicitly argue future dangerousness for it to be at issue; instead, it is sufficient if future dangerousness is 'a logical inference from the evidence' or is 'injected into the case through the State's closing argument'" (citation omitted)).

         ¶17 Sanders is not eligible for parole and cannot be released from prison unless his sentence is commuted by the Governor. See A.R.S. § 41-1604.09(I) (2009) (stating section regarding parole eligibility "applies only to persons who commit felony offenses before January 1, 1994"); Lynch v. Arizona, 136 S.Ct. 1818, 1819-20 (2016) (holding that the possibility a defendant could be eligible for executive clemency does not justify refusing a parole-ineligibility instruction). Accordingly, if Sanders' future dangerousness was at issue, the trial court's erroneous instruction violated his due process right to inform the jury that he was ineligible for parole or release.

         Future Dangerousness

         ¶18 In a capital case, placing future dangerousness at issue invites the jury to assess whether the defendant's propensity for violence is so great that imposing death is the only means to protect society. See California v. Ramos, 463 U.S. 992, 1003 (1983). Here, because there are significant factual differences between Sanders' case and those cases where a defendant's future dangerousness was at issue, we conclude the trial court's instruction did not violate Sanders' due process rights.

         ¶19 Significantly, Sanders had no prior arrests or convictions for violent acts, and there is no evidence that he had a history of violent or assaultive behavior. In contrast, future dangerousness is usually placed at issue when evidence is presented to the jury demonstrating the defendant's propensity for violence and unlawful behavior. See, e.g., Kelly, 542 U.S. at 249, 252-53 (holding the jury was invited to consider the defendant's future dangerousness based on testimony that defendant created a shank while in prison and made an escape attempt that included a plan to lure a female guard into his cell to be used as a hostage, as well as testimony by the State's psychologist that the defendant was a sadist as a child and had developed an inclination to kill anyone "who rubbed him the wrong way"); Rushing, 243 Ariz. at 222 ¶¶ 40-41 (finding future dangerousness was placed at issue based on evidence that defendant "shot his stepfather in the back of the head, killing him while he slept"; "threatened officers and got into fights in prison"; hid "two shanks [] inside his rectum" while in prison; and that the prosecutor elicited testimony "from a prison expert that [defendant] was affiliated with the Aryan Brotherhood, once planned to form a Skinhead group 'to bring things back in order' in Prescott upon release from prison, and accumulated disciplinary violations, including threats to kill corrections officers"); Escalante-Orozco, 241 Ariz. at 285 ¶ 121 (stating that defendant's future dangerousness was at issue when, during the penalty phase, the prosecutor presented evidence that the defendant "choked his ex-wife" and "threatened her life" by holding a "knife to her throat"; threatened his ex-wife by biting off "part of someone's finger in a fight" and showing it to her; and, on another occasion, fought with his ex-wife, "tore off her clothes, threatened her with a knife, and dragged her outside by her hair while she was naked").

         ¶20 The circumstances surrounding Schala's murder did not place Sanders' future dangerousness at issue by suggesting that the death penalty was the only means to protect society. See Ramos, 463 U.S. at 1003. The record shows that Sanders committed this murder in the context of a specific domestic situation that came to a head in the summer of 2009. Specifically, at the time of the murder, Sanders was living in cramped, stressful conditions in his mother's house, where neither Schala nor Susan were welcome; Sanders and Susan were chronically unemployed, causing severe financial distress; Susan had abdicated parenting responsibilities, thrusting Sanders into the role of the sole responsible parent; and Sanders was suffering from undiagnosed, untreated PTSD.

         ¶21 Unlike Sanders' case, cases before this Court involving future dangerousness have entailed a random or predatory murder involving a stranger who had the misfortune of crossing the defendant's path. See, e.g., State v. Hulsey, 243 Ariz. 367, 375 ¶¶ 2-5 (2018) (following a traffic stop, the defendant, who was a passenger in the car and had an outstanding warrant, opened fire and killed a police offer when the officer asked him to step out of the car); Rushing, 243 Ariz. at 216 ¶¶ 2-6 (defendant beat and stabbed his prison cellmate after a few weeks of being housed together); Escalante-Orozco, 241 Ariz. at 265 ¶¶ 2-5 (defendant, a live-in maintenance worker at an apartment complex, beat, raped, and stabbed a resident, and then sold his car and fled to Mexico, remaining at-large for over six years). In such cases, the inference that the defendant posed a danger to society was far stronger than in Sanders' case.

         ¶22 Sanders claims, however, that there was evidence, extrinsic to Schala's murder, showing his propensity for violence. Specifically, Sanders points to evidence that (1) he was investigated for rape while he was in the Marine Corps, and (2) he was involved in a "choking" incident with Susan.

         ¶23 The rape investigation was referenced during the testimony of Dr. Smith, a mitigation expert who testified about Sanders' PTSD. Dr. Smith testified that his evaluation and diagnosis of Sanders were based largely on Sanders' self-reporting. At one point during his examination, defense counsel asked Dr. Smith whether Sanders had advised him that "while he was in California he was charged with an offense" and "those charges were dropped." Dr. Smith testified that Sanders had reported this incident but did not disclose the nature of the charges.

         ¶24 The State attempted to impeach Dr. Smith's PTSD diagnosis. To do so, the prosecutor asked a series of questions about Sanders' purported lack of full disclosure during his examination. In line with this questioning, at one point the prosecutor asked Dr. Smith if Sanders had disclosed that his prior criminal investigation was for rape. Dr. Smith stated that Sanders had not.

         ¶25 The prosecutor's question to Dr. Smith did not elicit information or itself suggest that Sanders was in fact a rapist or had a propensity for violence. We recognize that the prosecutor should have been more careful about this question's potentially prejudicial impact. However, this isolated question was the only reference to the rape investigation, and the prosecutor never argued or discussed it in her closing argument. This fleeting episode did not create a specter of future dangerousness.

         ¶26 The "choking incident" was introduced by defense counsel during her direct examination of Susan's cousin, Bianca Smallwood. Defense counsel presented this testimony as part of Sanders' mitigation evidence. Specifically, in questioning Bianca, defense counsel sought to establish the stressful domestic circumstances that led to Schala's murder. See supra ¶ 20. In this context, defense counsel asked Bianca about an incident where Susan threw Sanders' expensive remote-control helicopter across the room, and Sanders reacted by "grabb[ing] her by the throat."

         ¶27 Bianca testified that this was the only time she saw Sanders exhibit any violence toward Susan. Additionally, the prosecutor sought to establish that the incident never occurred. On cross-examination the State sought to show when Bianca claimed this incident occurred, Sanders could not afford an expensive remote-control helicopter. The State also presented testimony from Detective Kaminsky that (1) no report was made to the police about this incident, and (2) there were no police reports regarding any other domestic violence incidents occurring between Sanders and Susan.

         ¶28 The State never argued that the helicopter incident showed that Sanders was a violent or dangerous person. Indeed, the State argued that the incident, if it occurred, was an anomaly in Sanders' relationship with Susan, and that everything between them appeared to be "fine." The sole reference the State made to the incident stressed this fact:

Ladies and gentlemen, [Sanders and Susan] both expressed a desire to see each other. This was not a relationship the defendant was in because Susan had forced him to be into it. He wanted to be into it. He had a desire to marry her. The only thing standing in his way was a lack of money. He described his relationship with Susan as good. It was a little rocky because they had financial concerns at that time. It's also important, and I bring up the point of Bianca Smallwood because the defense brought her up in their first close. And what she said is that when they were together, they appeared fine, with the exception of this whole choking incident, with what she describes as really a mutual combat issue, that Susan had provoked the defendant, and he reacted. And she talks about how the defendant cared for Schala.

         ¶29 Sanders also argues that the State placed his future dangerousness at issue by emphasizing the brutality of the murder. We disagree.

         ¶30 The prosecutor never suggested that based on the brutality of the murder, Sanders posed a danger to society. Rather, in describing the murder and Sanders' conduct as "horrific," "cold," "ruthless," "callous," and "mean," the prosecutor argued for retribution, focusing the jury's attention on the "moral outrage" and "affront to humanity" of Sanders' conduct. See Gregg v. Georgia, 428 U.S. 153, 183-84 & nn.29-30 (1976). In her closing argument the prosecutor emphasized that Sanders deserved the death penalty as punishment for beating Schala to death:

Now, in closing, I would like to talk to you about what you're being asked to do here today. In society, we often want to believe there has to be something mentally wrong with someone who could commit such an act of violence against such an innocent person, a little child. Wouldn't we want to believe that a person must have had a horrible childhood to cause them to commit such a terrible act? That there must have been some event in that person's life that led them to brutalize a human being. But, ladies and gentlemen, as Dr. Seward alluded to, sometimes people just do bad things. And that's what the evidence in this case has shown.
This defendant is a normal, intelligent person. He had a normal upbringing. You have seen a binder full of memories from birth into adulthood . . . .
But Schala's death could have been prevented. All it would have required is that he stopped. When he saw those bruises forming on her body, that he stopped. And he chose not to. And for that, ladies and gentlemen, he does deserve the ultimate punishment, the death penalty. Ladies and gentlemen, the State is asking you to impose a just sentence for what this defendant did to Schala.

(emphasis added). See Commonwealth v. Chmiel, 889 A.2d 501, 537-38 (Pa. 2005) (finding prosecutor's arguments focusing on the brutality of the murders, and imposing death as retribution for the inhumanity of the murders, as opposed to defendant's propensity for violence, did not place future dangerousness at issue).

         ¶31 In contrast, in many cases finding future dangerousness was at issue, the prosecutor argued that the defendant's propensity for violence was so great that, if released from prison, he would pose a continuing threat to society. See, e.g., Kelly, 534 U.S. at 249-50 (during his closing argument, the prosecutor compared the defendant to a serial killer, stating that he was dangerous and unpredictable, and referred to him as "the butcher of Batesburg," "Bloody Bill," and "Billy the Kid," and at the end of his argument, remarked that "murderers will be murderers [and the defendant] is the cold-blooded one right over there"); Simmons, 512 U.S. at 157; id. at 175-76 (O'Connor, J., concurring) (holding that future dangerousness was at issue where the State argued that the defendant was "a vicious predator who would pose a continuing threat to the community," the jury had to decide "what to do with [defendant] now that he is in our midst," and "[y]our verdict should be a response of society to someone who is a threat. Your verdict will be an act of self-defense"); Hulsey, 243 Ariz. at 395 ¶¶ 130-31 (holding the state placed the defendant's future dangerousness at issue when, during the penalty phase, "the prosecutor discussed [defendant's] proclivity throughout his life to get into fights, stating, '[h]e just gets angry and wants to beat people up, whether he is high or not,' and, '[i]f you don't agree with him, he will explode, '" he "recounted testimony that [defendant] 'likes to see when you put a firecracker in a cat's anus just so you can see the entrails flow out as the cat dies, '" and the "prosecutor repeatedly mentioned how an expert who contacted [defendant] was afraid of him and felt threatened," and "elicited testimony that when previously incarcerated, [defendant] had choked a fellow inmate and threatened the inmate and other inmates who saw the incident").

         ¶32 Accordingly, based on the record in this case, Sanders' future dangerousness was not at issue, nor was it a logical inference from the evidence. Therefore, no Simmons error occurred.

         Eligibility of Juror 19

         ¶33 Sanders claims that he was deprived of a jury of twelve qualified jurors because Juror 19, who was later empaneled as the presiding juror, was a convicted felon and therefore ineligible to serve on the jury. Juror 19 stated in his written questionnaire that he had been "convicted of a white-collar crime" in 2004. The juror later advised the trial court during voir dire that his civil rights had been restored. Sanders claims, however, that this ...


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