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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 Champagnes 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. Tapahas
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.
Page 308
Champagne left the room briefly, placing a gun in Garcias
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 Hoffners 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 mothers 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 Hoffners 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 courts decision to deny a request for new
counsel for abuse of discretion. State v. Cromwell,
211 Ariz. 181, 186 ¶ 27, 119 P.3d 448, 453 (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 counsels 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 Champagnes 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.
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[¶10]
In response, Champagnes 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 counsels 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, Champagnes counsel
asserted that a change of counsel was not in Champagnes 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 Champagnes 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 counsels initial
statement that he had a good-faith basis for requesting a
change of counsel, maintaining that the courts 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 counsels
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,
119 P.3d at 453. 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, 305
P.3d 378, 383 (2013) (internal quotation marks omitted). Such
a "deprivation of a defendants Sixth Amendment right to
counsel infect[s] the entire trial process," requiring
automatic reversal. State v. Moody (Moody I), 192 Ariz. 505,
509 ¶ 23, 968 P.2d 578, 582 (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, 119
P.3d at 453.
[¶13]
Trial courts have a duty to inquire into the basis of a
defendants request for change of counsel. State v.
Torres, 208 Ariz. 340, 343 ¶ 7, 93 P.3d 1056, 1059
(2004). But the nature of that inquiry depends on the nature
of the defendants 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 courts failure to
conduct an inquiry into a purported conflict can, under
certain circumstances, serve as a basis for reversing a
defendants conviction. See Holloway v.
Arkansas, 435 U.S. 475, 487-91, 98 S.Ct. 1173, 55
L.Ed.2d 426 (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, 733 P.2d 1066, 1069
(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, 733 P.2d at 1069-70. Here,
"[a]lthough the trial court could have engaged
Page 310
in a more searching exploration" of the responses from
Champagnes 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, 305 P.3d 378,
383-84, 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, 305 P.3d at 383 (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, 858 P.2d 1152, 1194 (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,
Champagnes 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 Champagnes 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, 119 P.3d at 454 (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 LaGrand
). Here, not only would a delay stemming from change in
counsel have resulted in inconvenience to witnesses, but it
may have prejudiced the States case.
[¶18]
Fourth, the court explicitly noted the quality of counsel.
The court observed that Champagnes 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 Champagnes
motion and the time that had already elapsed since the
alleged offense. Champagnes 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, 413 P.3d 692, 697 (App. 2018).
[¶20]
In fact, only one LaGrand factor weighed in
Champagnes favor— the proclivity of the defendant to
change counsel— as he had not previously requested a
change of
Page 311
counsel. But one factor weighing in Champagnes 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, 733 P.2d at 1069-70. Thus, the court did not abuse
its discretion in denying Champagnes 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
Champagnes request for change of counsel. See
Hernandez, 232 Ariz. at 321 ¶¶ 34-36, 305 P.3d at
386 (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 courts 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 Champagnes
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, 115 P.3d 601, 602 (2005); see
also State v. Bush, 244 Ariz. 575, 591 ¶¶
66-68, 423 P.3d 370, 386 (2018). We review whether the trial
court properly instructed the jury de novo. State v.
Rushing, 243 Ariz. 212, 221 ¶ 36, 404 P.3d 240, 249
(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 defendants future dangerousness is
at issue, and state law prohibits the defendants release on
parole, due process requires that the sentencing jury be
informed that the defendant is parole ineligible." 512
U.S. 154, 156, 114 S.Ct. 2187, 129 L.Ed.2d 133 (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 defendants future nondangerousness to
the public than the fact that he never will be released on
parole." Id. at 163-64, 114 S.Ct. 2187.
[¶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 Champagnes 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
...