Appeal
from the Superior Court in Maricopa County The Honorable
Pamela S. Gates, Judge No. CR2013-000177-002
Mark
Brnovich, Arizona Attorney General, O.H. Skinner, Solicitor
General, Lacey Stover Gard, Chief Counsel, Capital Litigation
Section, Julie A. Done (argued), Assistant Attorney General,
Phoenix, Attorneys for State of Arizona
Garrett W. Simpson (argued), Garrett Simpson PLLC, Glendale,
Attorney for Alan Matthew Champagne
JUSTICE BOLICK authored the opinion of the Court, in which
CHIEF JUSTICE BALES (Retired), VICE CHIEF JUSTICE BRUTINEL,
and JUSTICES TIMMER, GOULD, LOPEZ, and PELANDER (Retired)
joined.
OPINION
BOLICK, JUSTICE
¶1
Alan Matthew Champagne was convicted of the first-degree
murder of Brandi Hoffner, the second-degree murder of Philmon
Tapaha, kidnapping Hoffner, and two counts of abandonment or
concealment of a dead body. He was sentenced to death for the
first-degree murder. We have jurisdiction over this direct
appeal under article 6, section 5(3) of the Arizona
Constitution and A.R.S. § 13-4031. For the following
reasons, we affirm Champagne's convictions and sentences.
BACKGROUND
¶2
On June 23, 2011, Champagne and three friends drank alcohol
and used methamphetamine at his apartment.[1] One friend, Elise
Garcia, spent the night. Early the next morning, she was in
the bathroom when two people entered the apartment with
Champagne. As she walked into the living room, Garcia heard a
gunshot and then saw Tapaha on the couch with a bullet wound
to his head, blood on the walls and the couch, and Champagne
standing next to him holding a gun. Tapaha's girlfriend,
Hoffner, cried at the sight of her dead boyfriend, saying,
"I loved him."
¶3
Champagne attempted to calm Hoffner and asked if she wanted
to get high. Hoffner nodded affirmatively, and he led her
into the bedroom and gave her a bong and methamphetamine for
her to smoke. Garcia followed them into the bedroom and sat
in the doorway. Champagne left the room briefly, placing a
gun in Garcia's lap before he exited the room. Garcia
testified that when she locked eyes with Hoffner, Hoffner
understood she would not be allowed to leave. When Champagne
returned, he came behind Hoffner as she was smoking and
slipped an electrical cord fashioned into a noose around her
neck. Hoffner struggled, clawing with both hands at the cord
trying to breathe as Champagne used a wrench to tighten the
cord with each turn. Garcia recalled Hoffner's face
turning purple as Champagne strangled her to death.
¶4
After Champagne killed Hoffner, he kept the bodies in his
apartment for approximately one week. Eventually, Champagne
placed the decomposing bodies into a large wooden box, which
he buried in his mother's backyard. About twenty months
later, a landscaper discovered the box containing the bodies.
¶5
The State charged Champagne with two counts of first-degree
murder for the killings of Tapaha and Hoffner, one count of
kidnapping Hoffner, and two counts of abandonment or
concealment of the bodies. The jury found Champagne guilty on
all charges, except that it found him guilty of second-degree
murder for the killing of Tapaha. The jury found three
aggravating circumstances: (1) Champagne had been previously
convicted of a serious offense, A.R.S. § 13-751(F)(2);
(2) he murdered Hoffner in an especially cruel manner, §
13-751(F)(6); and (3) he was convicted of multiple homicides
during the commission of the offense, § 13-751(F)(8).
The jury found that the proffered mitigation was not
sufficiently substantial to call for leniency and Champagne
was sentenced to death for Hoffner's murder. This
automatic appeal followed.
DISCUSSION
A.
Request for Change of Counsel
¶6
Champagne contends that the trial court erred in summarily
dismissing his request to change counsel and failing to
adequately inquire into whether a true conflict existed, thus
violating his constitutional right to conflict-free counsel.
We review a trial court's decision to deny a request for
new counsel for abuse of discretion. State v.
Cromwell, 211 Ariz. 181, 186 ¶ 27 (2005).
¶7
Before trial, Champagne filed a pro per motion to change
counsel, which the trial court described as a "[bare]
bones hand-written motion" that cited "no
particular reason" why counsel should have been changed.
Defense counsel maintained that Champagne had a "good
faith basis to ask for new counsel" and informed the
court that there was a bona fide conflict of interest because
Champagne said he was filing a complaint against her with the
State Bar of Arizona. Because of that conflict, counsel
asserted that she and her co-counsel needed to be
"removed from representing Mr. Champagne any
further." The trial court denied counsel's oral
motion to remove capital counsel, who had been working on the
case for eighteen months, and instructed counsel to file a
motion if she believed it was appropriate for Champagne to
obtain new counsel. She did not do so.
¶8
Three-and-one-half months later, Champagne wrote a letter to
the court, repeating his request for new counsel and alleging
his current counsel had fallen asleep during his recent,
unrelated trial, which resulted in over a 700-year sentence.
But after the court reviewed his letter, Champagne informed
the court that he wanted his attorney to visit him in jail to
explore whether they could "reach some type of an
understanding or working relationship." Despite a
productive jail visit, Champagne indicated to the court that
he still wanted to change his counsel.
¶9
The court treated Champagne's letter as a motion to
change counsel and addressed it at a hearing. The prosecutor
noted that a delay in trial due to change in counsel would
impact witness availability and the victims' rights to a
speedy trial. The court then conducted an ex parte hearing in
the presence of only Champagne and his attorney on the
purported conflict. Champagne told the court he wanted to
change counsel because his lawyer fell asleep during his
previous trial-which, according to Champagne, alone
constituted adequate grounds to change counsel- and that she
was not visiting him or discussing the current case with him.
¶10
In response, Champagne's counsel explained that Champagne
was extremely unhappy about the outcome of his prior trial,
that he became hostile and uncooperative, and that he refused
visits from counsel's mitigation specialist. She detailed
the extensive amount of time and work that she spent
preparing for this case. Moreover, she told the court she was
willing to assist Champagne in accurately and adequately
preserving a record of the allegations surrounding her
perceived behavior during his prior trial. Ultimately,
Champagne's counsel asserted that a change of counsel was
not in Champagne's best interests and that she did not
believe the relationship was irretrievably broken but that
they could work together and proceed to trial. The trial
court denied Champagne's request for new counsel.
¶11
The trial court did not abuse its discretion. Champagne
argues that the Court should "presume the
prejudice because there was a showing of actual conflict of
interest." He relies considerably on counsel's
initial statement that he had a good-faith basis for
requesting a change of counsel, maintaining that the
court's denial of his request resulted in structural
error tainting his entire trial. But that statement came
shortly after Champagne informed his attorney that he
intended to pursue a bar complaint against her. And Champagne
ignores counsel's subsequent statements that the
relationship was not irretrievably broken, that a change of
counsel was not in his best interests, that she was dedicated
to his current case, and that she was willing to help him
establish a record of his allegations relating to her
perceived behavior in his prior trial.
¶12
Although the Sixth Amendment guarantees an accused the right
to counsel, a "defendant is not, however, entitled to
counsel of choice or to a meaningful relationship with his or
her attorney." Cromwell, 211 Ariz. at 186
¶ 28. A defendant is deprived of his constitutional
right to counsel "if either an irreconcilable conflict
or a completely fractured relationship between counsel and
the accused exists." State v. Hernandez, 232
Ariz. 313, 318 ¶ 12 (2013) (internal quotation marks
omitted). Such a "deprivation of a defendant's Sixth
Amendment right to counsel infect[s] the entire trial
process," requiring automatic reversal. State v.
Moody (Moody I), 192 Ariz. 505, 509 ¶ 23 (1998)
(alteration in original) (internal quotation marks omitted).
A "[c]onflict that is less than irreconcilable, however,
is only one factor for a court to consider in deciding
whether to appoint substitute counsel."
Cromwell, 211 Ariz. at 186 ¶ 29.
¶13
Trial courts have a duty to inquire into the basis of a
defendant's request for change of counsel. State v.
Torres, 208 Ariz. 340, 343 ¶ 7 (2004). But the
nature of that inquiry depends on the nature of the
defendant's request. Id. ¶ 8. On the one
hand, if the defendant sets forth "sufficiently
specific, factually based allegations in support of his
request for new counsel, the . . . court must conduct a
hearing into his complaint." Id. (alteration in
original) (internal quotation marks omitted). On the other
hand, "generalized complaints about differences in
strategy may not require a formal hearing or an evidentiary
proceeding." Id. A trial court's failure to
conduct an inquiry into a purported conflict can, under
certain circumstances, serve as a basis for reversing a
defendant's conviction. See Holloway v.
Arkansas, 435 U.S. 475, 487-91 (1978).
¶14
Trial courts should examine requests for new counsel
"with the rights and interest of the defendant in mind
tempered by exigencies of judicial economy." State
v. LaGrand, 152 Ariz. 483, 486 (1987). This Court has
identified several factors - known as the LaGrand
factors -for trial courts to consider when ruling on motions
for change of counsel:
whether an irreconcilable conflict exists between counsel and
the accused, and whether new counsel would be confronted with
the same conflict; the timing of the motion; inconvenience to
witnesses; the time period already elapsed between the
alleged offense and trial; the proclivity of the defendant to
change counsel; and quality of counsel.
Id. at 486-87. Here, "[a]lthough the trial
court could have engaged in a more searching
exploration" of the responses from Champagne's
attorney as to the truthfulness behind his claim that she
fell asleep during his prior trial and the repercussions of
that alleged behavior on their attorney-client relationship,
see Hernandez, 232 Ariz. at 318-19 ¶ 16, the
court did not abuse its discretion because it sufficiently
inquired into the purported conflict and considered the
LaGrand factors.
¶15
First, the court determined that there was no irreconcilable
breakdown in communication between Champagne and his counsel.
Champagne had the burden of proving "either a complete
breakdown in communication or an irreconcilable
conflict," and, to satisfy that burden, he needed to
"present evidence of a severe and pervasive conflict
with his attorney or evidence that he had such minimal
contact with the attorney that meaningful communication was
not possible." Hernandez, 232 Ariz. at 318
¶ 15 (internal quotation marks omitted). The court
concluded that the circumstances did not amount to an
irreconcilable breakdown in communication, that Champagne was
able to communicate with his lawyer, and that he was
receiving effective representation. And while the court noted
that Champagne may understandably be upset and have
"some trust issues" if counsel truly fell asleep
during a brief period of his prior trial, "[a] mere
allegation of lost confidence in counsel does not require
appointing substitute counsel." State v. Bible,
175 Ariz. 549, 591 (1993).
¶16
Second, the court noted that new counsel would likely be
confronted with the same conflict. Other than the allegation
that counsel slept during part of his previous trial,
Champagne's main concern was that his attorney was not
adequately communicating with him. However, counsel told the
court that she had visited Champagne multiple times in jail,
as had her mitigation specialist, but that he sometimes
refused visits. Additionally, counsel said that her
challenging trial schedule had made it difficult to see
Champagne for a few months, but that she was nonetheless
preparing for his trial and ready to move forward. Based on
that information, the court found that a change in counsel
would likely result in the same purported conflict because
new counsel might also be unable to visit and confer with
Champagne as often as he would like, making it conceivable
that the court could find itself in the same circumstance
with a change of counsel.
¶17
Third, the court found that granting Champagne's request
would delay trial, which could ultimately inconvenience
witnesses. The prosecutor explained how a change of counsel
would delay trial and make it difficult for the State to get
certain witnesses to court. See Cromwell, 211 Ariz.
at 187 ¶¶ 34-35 (noting that the fact that
appointing new counsel would cause delay and inconvenience to
witnesses was part of a "proper balancing of relevant
interests" under LeGrand). Here, not only would
a delay stemming from change in counsel have resulted in
inconvenience to witnesses, but it may have prejudiced the
State's case.
¶18
Fourth, the court explicitly noted the quality of counsel.
The court observed that Champagne's counsel was "one
of the best capital defense attorneys in the State of
Arizona" and that she was "aggressively"
working on his case.
¶19
Finally, the court considered the timing of Champagne's
motion and the time that had already elapsed since the
alleged offense. Champagne's request for new counsel came
after counsel had invested substantial time and effort into
the case, nearly two years after Champagne committed the
murders, over a year after he was indicted, less than a year
before trial was scheduled to begin, and only after Champagne
lost his previous trial and was sentenced to more than 700
years. The court considered the "substantial" delay
that would be caused by a change in counsel, concluding that
"[i]t would absolutely prejudice the victim[s']
interest[s] and the community interest in a speedy resolution
of this matter." See Ariz. Const. art. 2,
§ 2.1(A)(10); Phx. Newspapers, Inc. v. Otis,
243 Ariz. 491, 496 ¶ 16 (App. 2018).
¶20
In fact, only one LaGrand factor weighed in
Champagne's favor-the proclivity of the defendant to
change counsel-as he had not previously requested a change of
counsel. But one factor weighing in Champagne's favor
does not necessitate a finding that he was entitled to change
counsel when the other factors weighed in support of denying
his request. See LaGrand, 152 Ariz. at 486-87. Thus,
the court did not abuse its discretion in denying
Champagne's request for change of counsel.
¶21
The trial court did not explicitly refer to the
LaGrand factors, but the record indicates that the
court considered these factors in assessing and denying
Champagne's request for change of counsel. See
Hernandez, 232 Ariz. at 321 ¶¶ 34-36 (finding
trial court did not abuse its discretion when it considered
the LaGrand factors but "did not explicitly
refer to the aforementioned factors"). Although we
encourage trial courts to make explicit LaGrand
findings, the record here nevertheless reflects the
court's adequate consideration of the factors.
B.
Question 78 of the Jury Questionnaire
¶22
Champagne argues that the trial court erred by telling the
jury during voir dire and in the jury questionnaire that a
life sentence could result in the possibility of
Champagne's release after twenty-five years. Because
Champagne did not object at trial, he has forfeited any right
to appellate relief unless the purported error rises to the
level of fundamental error. See State v. Henderson,
210 Ariz. 561, 567 ¶ 19 (2005); see also State v.
Bush, 244 Ariz. 575, 591 ¶¶ 66-68 (2018). We
review whether the trial court properly instructed the jury
de novo. State v. Rushing, 243 Ariz. 212, 221 ¶
36 (2017).
¶23
Champagne is ineligible for parole under Arizona law.
See A.R.S. § 41-1604.09(I). In Simmons v.
South Carolina, a plurality of the United States Supreme
Court held that "where 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. 154, 156 (1994) (plurality
opinion). The Court emphasized that "it is entirely
reasonable for a sentencing jury to view a defendant who is
eligible for parole as a greater threat to society than a
defendant who is not," and "there may be no greater
assurance of a defendant's future nondangerousness to the
public than the fact that he never will be released on
parole." Id. at 163-64.
¶24
Before trial, Champagne requested a Simmons
instruction. The State did not object and the final jury
instructions during the penalty phase properly included the
following Simmons instruction: "If a life
sentence is imposed, parole is unavailable to Mr. Champagne
under state law." The record does not indicate and
Champagne does not argue that the court or the parties
suggested during trial that, if sentenced to life, Champagne
had the possibility of release on parole.
¶25
Here, the thrust of Champagne's argument is that the
trial court contradicted Simmons "by telling
the jury repeatedly that despite the lack of parole Mr.
Champagne could be released after 25 years for any reason
sufficient to the court." The jury questionnaire used
during voir dire briefly mentioned the possibility of parole.
Specifically, question 78 read:
If you determine that the appropriate sentence is life, the
judge will determine if the sentence will be life without the
possibility of release or life with the possibility of
release only after at least 25 years have been served.
Do you agree with the law that requires the judge, not the
jury, to make the decision about which type of life sentence
to impose?
(Emphasis added.) During voir dire, the court addressed
prospective jurors who responded in the negative to question
78 by reiterating the question and asking if their
disagreement with the law would affect their decisionmaking
process regarding sentencing and their ability to apply the
law.
¶26
Champagne incorrectly contends that the court provided no
curative statement to the language in question 78. Any
possible misconception that parole was available to Champagne
resulting from question 78 was cured when the trial court
instructed the jury during the penalty phase that Champagne
was ineligible for parole under state law. Cf State v.
Hulsey, 243 Ariz. 367, 396 ¶ 137 (2018) ("The
impression that [the defendant] 'could be released on
parole if he were not executed' was created by the court
in the aggravation phase and was never rectified. Because
this misperception was never cured or contradicted, its
impact carried over to the penalty phase." (quoting
Simmons, 512 U.S. at 161)). Here, Champagne
requested that the trial court provide a Simmons
instruction and the trial court did just that. Given that the
statement at issue occurred during voir dire and the
sentencing jury was fully and correctly advised that
Champagne was ineligible for parole, no Simmons
error occurred.
¶27
Moreover, in their closing arguments during the penalty
phase, both the prosecution and defense emphasized that, if
sentenced to life, Champagne would never get out of prison
because he was already serving over a 700-year sentence.
Thus, contrary to Champagne's assertions, this case is
not one in which the jury "was given a false choice
between an un-releasable death sentence and the prospect that
if given life [Champagne] could just be cut loose, set free,
released in a mere 25 years." Instead, there was no risk
that the jury believed that, absent a death sentence,
Champagne could be released from prison because the jury
received a proper instruction that Champagne was ineligible
for parole and counsel repeatedly affirmed that he would
never be released from prison. Therefore, no error occurred.
C.
Statements to Detective Egea
¶28
Champagne asserts that the trial court abused its discretion
and violated his constitutional rights by refusing to
suppress incriminating statements made to an undercover
police detective while Champagne was incarcerated. However,
Champagne also contends that the court erred by preventing
the jury from hearing a statement he made to the undercover
officer after his Sixth Amendment right to counsel attached
-one of the very statements Champagne sought to suppress -
because the rule of completeness required its admission. We
review a trial court's ruling on a motion to suppress
evidence for abuse of discretion, State v. Hall, 204
Ariz. 442, 451 ¶ 37 (2003), but review purely legal
issues and constitutional issues de novo, State v. Moody
(Moody II), 208 Ariz. 424, 445 ¶ 62 (2004).
Likewise, a trial court's decision to admit or preclude
what would otherwise be inadmissible portions of a statement
under the rule of completeness pursuant to Arizona Rule of
Evidence 106 is reviewed for abuse of discretion. State
v. Prasertphong (Prasertphong II), 210 Ariz. 496, 500-01
¶¶ 20-21 (2005).
1.
Motion to Suppress
¶29
Before trial, Champagne moved to suppress statements he made
to undercover Detective Egea, arguing that they were made in
violation of the Fourth, Fifth, Sixth, Eighth, and Fourteenth
Amendments of the United States Constitution, as well as
article 2, sections 4, 8, 10, and 24 of the Arizona
Constitution. The State responded that Champagne's
statements to Egea before initiation of formal charges did
not violate any of Champagne's constitutional rights but
conceded that Egea's meeting with Champagne on March 19,
2013, violated Champagne's Sixth Amendment right to
counsel. The following evidence was presented at the hearing
on the motion to suppress.
¶30
On October 20, 2011, police received an anonymous tip about a
double homicide, naming Champagne as a potential suspect.
Champagne was arrested for unrelated crimes and taken into
custody on March 3, 2012. Champagne was properly read his
Miranda rights and told he was under arrest.
Detective Korus, who was investigating the disappearances of
Tapaha and Hoffner, interviewed Champagne about the unrelated
crimes. When Korus mentioned the missing persons
investigation, Champagne's demeanor changed, and he
asked, "[d]o I need a lawyer or something?" Korus
responded, "[y]ou tell me." But when Korus
continued to reference the missing persons, Champagne said,
"if you have any more questions about that, I want a
lawyer present." Korus immediately ceased questioning
Champagne regarding Tapaha and Hoffner.
¶31
In October 2012, Detective Korus approached Detective Egea,
an experienced undercover officer, about
"befriending" Champagne while he was incarcerated
for the unrelated crimes and seeking information about
Champagne's involvement in the missing persons case and
the location of the bodies. They decided Egea would go
undercover as an unscrupulous private investigator named
"Chino." A gang member incarcerated with Champagne
told investigators that Champagne admitted killing two
people. At the request of law enforcement, the gang member
thereafter told Champagne about Chino and arranged a meeting
between the two so Chino could "help [Champagne] with
whatever problem he may have."
¶32
Detective Egea, undercover as Chino, met with Champagne seven
times from October 2012 to March 2013. On October 23,
Champagne told Egea, "I got bigger problems. I got some
buried assets I need relocated." On October 30,
Champagne gave Egea a police report authored by Detective
Korus regarding the missing persons, stating, "[t]his is
my problem, know what I mean?" Champagne also said,
"[h]ey, Chino, it's going to be a big mess." On
February 14, 2013, Champagne again alluded to the missing
persons and indicated that their remains needed to be moved.
On March 4, Champagne told Egea that if the police found the
bodies "he would face the death penalty because ...