State of Arizona v. Gilbert Martinez , 230 Ariz. 208 ( 2012 )

SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-10-0177-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2006-007790-001 DT
GILBERT MARTINEZ, )
)
Appellant. )
) O P I N I O N
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable Rosa Mroz, Judge
AFFIRMED
________________________________________________________________
THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Division Chief Counsel
Jeffrey A. Zick, Section Chief Counsel
Jon G. Anderson, Assistant Attorney General
Criminal Appeals/Capital Litigation Section
Attorneys for State of Arizona
DROBAN & COMPANY, PC Anthem
By Kerrie M. Droban
Attorney for Gilbert Martinez
________________________________________________________________
B R U T I N E L, Justice
¶1 A jury found Gilbert Martinez guilty of one count of
first degree burglary, four counts of aggravated assault, four
counts of kidnapping, one count of theft, and one count of first
degree murder. After a mistrial in the penalty phase, a second
jury determined he should be sentenced to death. We have
jurisdiction over this automatic appeal under Article 6, Section
5(3) of the Arizona Constitution and A.R.S. § 13-4031 (2010).
I. FACTUAL AND PROCEDURAL BACKGROUND
¶2 On March 31, 2006, Betty L.’s daughters, Karen B. and
Colleen J., and their husbands, Forest B. and Vern J., were
visiting Betty and her husband, Laurel L., at their home in Sun
City.1 Martinez and Robert Arbolida watched the home, planning
to burglarize it. They left to get a gun, returning to the
house after its six occupants had gone to bed.
¶3 Martinez broke a patio door at the back of the house,
went inside, and let Arbolida in through the kitchen door.
Hearing a loud noise, Betty and Laurel went to investigate. In
the hallway, they encountered the two intruders, who were
wearing masks and gloves. Martinez and Arbolida pushed Betty
and Laurel into the room where Karen and Forest were staying.
Martinez threatened them, yelling profanities and telling them
to cooperate or he would kill them. When Laurel moved too
slowly because of his age and asthma, Martinez became frustrated
and pushed him. When Forest attempted to help Laurel, Martinez
pistol-whipped Forest, permanently injuring his eye. Martinez
then directed Arbolida to bind the four victims with zip ties.
Apparently having seen a third woman earlier when casing the
1
“We view the facts in the light most favorable to upholding
the verdicts.” State v. Chappell, 225 Ariz. 229, 233 ¶ 2 n.1,
236 P.3d 1176, 1180 n.1 (2010).
2
house, Martinez said to Arbolida, “Let’s go find the other
bitch.”
¶4 Colleen and Vern heard the commotion and Martinez’s
statement from their bedroom. Vern pushed Colleen into the
closet and closed the door. Vern, weaponless, went to the
bedroom door to stand between his wife and the intruders.
¶5 Martinez met Vern in the hallway, a scuffle ensued,
and Martinez fatally shot Vern. Martinez and Arbolida then fled
with various items belonging to the victims. They went to
Martinez’s sister’s house, where they cleaned blood off
themselves and divided the stolen property.
¶6 Martinez was later arrested and indicted on twenty-
three counts, including felony murder, stemming from this
burglary and six other burglaries and robberies in the same
area. The State sought the death penalty, alleging two
aggravating circumstances: Martinez previously had been
convicted of a serious offense, A.R.S. § 13-751(F)(2), and had
committed the murder for pecuniary gain, § 13-751(F)(5).
¶7 The trial court severed the charges by occurrence and,
after the State dismissed charges related to one of the
burglaries, ordered six separate trials. Martinez was acquitted
on one burglary (“the Krusenstjerna burglary”), but found guilty
on all other charges.
¶8 The jury in this case found Martinez guilty of eleven
3
charges, including felony murder, relating to the burglary of
Betty and Laurel’s home. The jury then found both alleged
aggravating circumstances proven beyond a reasonable doubt. It
also found that Martinez actually killed Vern and was a major
participant in his murder. The jury, however, hung in the
penalty phase, and the trial court declared a mistrial.
¶9 Following a second penalty-phase trial, a new jury
determined Martinez should be sentenced to death. The court
also sentenced him to 124 years’ imprisonment on the non-capital
charges.
II. ISSUES ON APPEAL
A. Denial of motions to strike potential jurors
¶10 Martinez challenges the trial court’s denial of his
motions to strike prospective jurors 2, 4, 15, 27, 44, and 59 in
the first trial and jurors 4, 10, and 105 in the second penalty
phase trial.2 Because none of those jurors served on either of
the juries that decided this case, “any error by the trial judge
in refusing to strike them [is] not reversible error absent
prejudice to [Martinez].” State v. Moore, 222 Ariz. 1, 18 ¶ 99,
213 P.3d 150, 167 (2009). Martinez is not entitled to relief
2
Martinez alleges violations of our state constitution on
this and other issues. Because he has not separately argued any
Arizona constitutional claims, however, we do not address them.
See, e.g., State v. Dean, 206 Ariz. 158, 161 ¶ 8 n.1, 76 P.3d
429, 432 n.1 (2003); State v. Altieri, 191 Ariz. 1, 2 ¶ 4 n.1,
951 P.2d 856, 867 n.1 (1997).
4
because he has not alleged or shown any prejudice, and “[n]o
evidence suggests that the sentencing jury was not fair and
impartial.” Id.; see also State v. Martinez, 218 Ariz. 421, 429
¶ 35, 189 P.3d 348, 356 (2008) (“We need not address this
argument because the juror in question was not seated and [the
defendant] makes no claim that any of the jurors who decided his
case should have been struck for cause.”).
B. Admission of bag with ammunition
¶11 Martinez asserts that the trial court, in the guilt
phase, abused its discretion by admitting exhibit 344, a brown
bag and its contents, and denying his subsequent motion for a
mistrial.
¶12 A detective testified that when officers executed a
search warrant at Martinez’s home, they found in the garage a
brown bag containing a gun case, a 9 mm handgun magazine, six
spent 9 mm casings, two boxes of .357 Magnum ammunition, a box
of .38 Special ammunition, an empty .22 caliber ammunition box,
loose .22 caliber rounds, a live 9 mm cartridge, an empty knife
scabbard, a pair of brown gloves, and ear plugs.
¶13 During the detective’s testimony, the State offered
into evidence the bag and its contents, along with zip ties,
labeled exhibit 345, also found in Martinez’s garage. Martinez
objected only to the admission of the zip ties. The court
admitted both exhibits. The State then had the detective remove
5
each item from the bag and describe it. Martinez objected on
relevance grounds to the bag’s contents. The trial court
overruled his objection, noting that the bag had already been
admitted. After a break, Martinez moved for a mistrial “based
on the prejudice of those items in that [bag].” The court
denied the motion, finding the contents of the bag “pretty
innocuous.”
¶14 Because Martinez did not object before the exhibit was
admitted into evidence, we review for fundamental error.3 State
v. Henderson, 210 Ariz. 561, 567 ¶ 19, 115 P.3d 601, 607 (2005);
see Ariz. R. Evid. 103(a)(1). To prevail under this standard,
Martinez must first establish that an error occurred, then show
that the error was fundamental in nature and caused prejudice.
State v. Hargrave, 225 Ariz. 1, 8 ¶ 13, 234 P.3d 569, 576
(2010).
¶15 Evidence of ammunition other than 9 mm, the caliber
used to kill Vern, was irrelevant and should not have been
admitted. But even if the trial court erred in admitting the
contents of the bag, Martinez has not shown prejudice. As the
trial court stated, in context the evidence was innocuous, and
the State never suggested that these items were connected to the
3
The State noted that this exhibit had been marked and
available for Martinez to view for months, and Martinez did not
dispute that assertion.
6
crime or that they confirmed Martinez as the killer. See United
States v. King, 254 F.3d 1098, 1101-02 (D.C. Cir. 2001) (finding
admission of evidence that defendant possessed a knife harmless
because it was “tangential to the Government’s case”).
C. Admission of nineteen prior offenses to prove (F)(2)
aggravator
¶16 Martinez argues that the trial court erred in allowing
the State to use nineteen prior serious felony convictions to
prove the (F)(2) aggravator, contending this evidence was unduly
prejudicial and denied him due process. We review a trial
court’s admission of evidence in the aggravation phase for an
abuse of discretion. See State v. Tucker, 215 Ariz. 298, 313
¶ 46, 314-15 ¶ 58, 160 P.3d 177, 192, 193-94 (2007).
¶17 Before trial, the State noticed its intent to prove
the (F)(2) aggravating circumstance by using Martinez’s
convictions from the five prior trials, a burglary conviction
from 1999, and the non-murder convictions arising from the
burglary of Betty and Laurel’s home. Martinez filed a “Motion
to Preclude Extraneous (F)(2) Aggravator Evidence,” arguing that
evidence of any serious offenses extraneous to those that
occurred with the murder would be unduly prejudicial and
cumulative and thus barred by Arizona Rule of Evidence 403. The
trial court denied the motion.
¶18 The (F)(2) aggravator requires proof beyond a
7
reasonable doubt that:
The defendant has been or was previously convicted of
a serious offense, whether preparatory or completed.
Convictions for serious offenses committed on the same
occasion as the homicide, or not committed on the same
occasion but consolidated for trial with the homicide,
shall be treated as a serious offense under this
paragraph.
§ 13-751(F)(2). Although we have never squarely addressed
whether to limit the number of prior convictions the state can
use to prove this aggravating circumstance, we have upheld
without comment (F)(2) findings based on multiple prior
convictions. See, e.g., State v. Phillips, 202 Ariz. 427, 438-
39 ¶¶ 56-57, 46 P.3d 1048, 1059-60 (2002) (finding (F)(2)
aggravator supported by evidence of twenty-seven prior
convictions).
¶19 The trial court correctly observed that the “decision
to offer evidence of aggravation or not offer such evidence is
the responsibility of the prosecutor.” State v. Murphy, 113
Ariz. 416, 418, 555 P.2d 1110, 1112 (1976). But because § 13-
751(B) provides that the Arizona Rules of Evidence govern the
aggravation phase, the trial court must exclude evidence “if its
probative value is substantially outweighed by a danger of . . .
unfair prejudice.” Ariz. R. Evid. 403. Therefore, the
pertinent inquiry is whether the probative value of the evidence
of Martinez’s nineteen other convictions was substantially
8
outweighed by the danger of unfair prejudice or other factors
identified in Rule 403.
¶20 Martinez argues that evidence of only one prior
conviction is necessary to prove the (F)(2) aggravator.
Although that is true, we have never suggested that once
sufficient evidence is admitted to prove an aggravator, the
state cannot present further evidence in support of that
aggravator. Martinez has not challenged the validity of any of
the nineteen convictions or otherwise identified how the State’s
proving the (F)(2) aggravator with multiple convictions
unfairly prejudiced him in the aggravation phase.
¶21 Martinez’s claim of prejudice arises from the State’s
later use of the evidence in the penalty phase. Although the
rules of evidence do not apply to the penalty phase, A.R.S.
§ 13-751(C), trial courts, pursuant to the Due Process Clause of
the Fourteenth Amendment, must still exclude evidence that is
unfairly prejudicial. See State v. Pandeli, 215 Ariz. 514, 527-
28 ¶ 43, 161 P.3d 557, 570-71 (2007) (noting that the
determination of unfair prejudice in penalty phase “involves
fundamentally the same considerations” as prejudice
determinations under Arizona Rule of Evidence 403). “Not all
harmful evidence, however, is unfairly prejudicial.” State v.
Mott, 187 Ariz. 536, 555-56, 931 P.2d 1046, 1055-56 (1997).
“Unfair prejudice results if the evidence has an undue tendency
9
to suggest decision on an improper basis, such as emotion,
sympathy, or horror.” Id. at 545, 931 P.2d at 1055.
¶22 Here, as the trial court found, each conviction went
to the “severity of the (F)(2) aggravator.” Each was probative
in the penalty phase to show Martinez’s “character and
propensities” and to strengthen the weight of the aggravator.
See State v. Gretzler, 135 Ariz. 42, 54, 659 P.2d 1, 13 (1983)
(noting that “the purpose of an aggravation/mitigation hearing
is to determine the character and propensities of the defendant”
because “[t]he punishment should fit the offender” (internal
quotation omitted)); State v. Howell, 868 S.W.2d 238, 261 (Tenn.
1993) (“[T]he effect of the aggravating circumstance on sentence
may increase where there is proof of more than one prior violent
felony conviction.”). In Arizona, an aggravating circumstance
not only qualifies a defendant for the death penalty, but is
also considered “in determining whether to impose a sentence of
death.” A.R.S. § 13-751(F); see also id. § 13-752(D), (G).
Therefore, the trial court correctly found the prior convictions
to be highly probative.
¶23 Nor did the trial court abuse its discretion in
implicitly finding that the probative value of the evidence was
not substantially outweighed by the danger of unfair prejudice.
In death penalty sentencing, the trier of fact must make an
individualized decision based on the “character and record of
10
the individual offender and the circumstances of the particular
offense.” Romano v. Oklahoma, 512 U.S. 1, 7 (1994) (internal
quotation omitted); see also A.R.S. §§ 13-751(G), -752(G). Such
evidence will often be prejudicial, but evidence of prior
convictions is not unfairly prejudicial because it is highly
relevant to making an individualized sentencing decision.
D. Prosecutorial misconduct
¶24 Martinez argues that the prosecutor’s “pervasive
prosecutorial misconduct” mandates reversal of his death
sentence and that Double Jeopardy bars retrial. Prosecutorial
misconduct warrants reversal if “(1) misconduct is indeed
present; and (2) a reasonable likelihood exists that the
misconduct could have affected the jury’s verdict, thereby
denying [the] defendant a fair trial.” State v. Anderson, 210
Ariz. 327, 340 ¶ 45, 111 P.3d 369, 382 (2005) (internal
quotation omitted). “To prevail on a claim of prosecutorial
misconduct, a defendant must demonstrate that the prosecutor’s
misconduct ‘so infected the trial with unfairness as to make the
resulting conviction a denial of due process.’” State v.
Hughes, 193 Ariz. 72, 79 ¶ 26, 969 P.2d 1184, 1191 (1998)
(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).
¶25 This Court separately reviews “each instance of
alleged misconduct, and the standard of review depends upon
whether the defendant objected.” State v. Morris, 215 Ariz.
11324, 335 ¶ 47, 160 P.3d 203, 214 (2007). If Martinez objected,
the Court reviews for harmless error; if he did not, we review
for fundamental error. State v. Gallardo, 225 Ariz. 560, 568
¶ 35, 242 P.3d 159, 167 (2010).
1. Courtroom conduct
¶26 The first allegation of misconduct concerns the lead
prosecutor’s courtroom conduct throughout both trials. During
voir dire in the guilt phase, the court warned the prosecutor to
watch her conduct because, she “tend[ed] to give a big sigh,
audible sigh, and throw up [her] hands and roll [her] eyes” when
the court ruled against her. But the judge also noted this
conduct was infrequent. Later, defense counsel noted on the
record that the same prosecutor continued to roll her eyes
during witness testimony. The trial court stated it had not
seen the prosecutor do this, but admonished all the attorneys to
“try to keep [their] facial expressions neutral as to not
influence the Jury one way or the other.”
¶27 After the first penalty phase ended in a mistrial,
Martinez moved to strike the notice of intent to seek the death
penalty based on the prosecutor constantly “rolling her eyes;”
“quipping,” “ad-libbing,” and her “running commentary on various
events as they occur during trial;” as well as her “propensity
to display irritation, displeasure or skepticism over rulings by
the Court adverse to her.” Defense counsel said a juror
12
mentioned this conduct during a “post-deadlock debriefing,” in
which the juror said the lead prosecutor’s eye-rolling was
“counter-productive and damaging to her credibility.” The trial
judge denied the motion, finding that the prosecutor did not
commit any intentional misconduct and that her behavior did not
prejudice the defendant. The judge noted that “the one juror
who did make a comment said it damaged [the prosecutor]’s
credibility. And, in fact, the jury deadlocked . . . on the
penalty for the Defendant.”
¶28 After the second penalty phase, Martinez moved for a
new trial, based in part on prosecutorial misconduct. He again
alleged that the prosecutor engaged in both “vouching and ex-
parte communication” with the jury throughout the trial by
making “various facial expressions.” He said he did not make a
motion during the trial because the conduct came to light only
after the verdict, when a juror likened the prosecutor’s facial
expressions to “a message board,” noting “that he could tell her
emotions throughout the trial.” The trial court denied the
motion.
¶29 Martinez argues that this misconduct constituted
“improper ‘vouching’ and ex-parte communication with jurors.”
“Prosecutorial vouching takes two forms: ‘(1) where the
prosecutor places the prestige of the government behind its
[evidence] [and] (2) where the prosecutor suggests that
13
information not presented to the jury supports the [evidence].’”
State v. Newell, 212 Ariz. 389, 402 ¶ 62, 132 P.3d 833, 846
(2006) (quoting State v. Vincent, 159 Ariz. 418, 423, 768 P.2d
150, 155 (1989)) (alterations in Newell). Any eye-rolling or
disapproving facial expressions signaled that the State did not
believe the evidence Martinez was presenting. Although
improper, this behavior does not amount to vouching. Nor did it
suggest that information outside the record supported the
witness’s testimony.
¶30 These allegations, however, are very troubling. It is
highly inappropriate for “[a] prosecutor . . . to convey his [or
her] personal belief about the credibility of a witness,” State
v. Lamar, 205 Ariz. 431, 441 ¶ 54, 72 P.3d 831, 841 (2003), and
to relay to the jury disagreement with trial court rulings by
facial expression. From the record, it is clear that this
prosecutor’s courtroom demeanor was inappropriate. However, the
conduct during the first trial was documented only twice, and
the trial judge was not certain it had occurred the second time.
The trial court’s firsthand observations and assessments are
entitled to substantial deference in this context. Although one
juror commented on the prosecutor’s behavior, the record does
not show reversible error based on this conduct.
¶31 Because Martinez did not object to any of the alleged
misconduct during the second penalty phase, we review those
14
matters for fundamental error. Gallardo, 225 Ariz. at 568 ¶ 35,
242 P.3d at 167. The trial court was in the best position to
assess the prosecutor’s courtroom demeanor and its effect on the
jury, Newell, 212 Ariz. at 402 ¶ 61, 132 P.3d at 846, and denied
Martinez’s motion for a new trial. Even if some misconduct
occurred during the second trial, Martinez has not shown
prejudice and is not entitled to relief on this ground. See
Henderson, 210 Ariz. at 567 ¶ 20, 115 P.3d at 607.
¶32 Martinez also argues that Pool v. Superior Court, 139
Ariz. 98, 677 P.2d 261 (1984), mandates reversal and bars
retrial in this case. But the misconduct in that case was
continuous and well-documented. Id. at 102-03, 677 P.2d at 265-
66. Here, although the prosecutor’s courtroom conduct was
inappropriate, it was confirmed only twice by the trial judge,
who did not think it amounted to such pervasive misconduct as to
bar retrial of the penalty phase.
¶33 Although the prosecutor’s conduct does not amount to
reversible error, we again strongly disapprove of such courtroom
behavior. Trial courts should promptly address this type of
misbehavior by warnings to counsel and other steps as may be
appropriate. Arizona attorneys pledge to “maintain the respect
due to courts of justice and judicial officers,” to “abstain
from all offensive conduct,” and to adhere to “a lawyer’s creed
of professionalism.” Ariz. R. Sup. Ct. 31 (The Oath of
15
Admission to the Bar). Eye-rolling, dramatic sighing, and other
expressions of displeasure in a courtroom violate these
standards. This is unacceptable behavior from any attorney, but
especially from a prosecutor, who serves as a “minister of
justice.” See Hughes, 193 Ariz. at 80 ¶ 33, 969 P.2d at 1192;
Ariz. R. Sup. Ct. 42, E.R. 3.8, cmt. 1.
2. Comparison between Martinez and the victims
¶34 The next alleged instance of misconduct occurred
during the prosecutor’s cross-examination of a defense expert
during the first penalty phase. The expert testified about the
effect on Martinez of the domestic violence that occurred in his
childhood home. In response, and without objection, the
prosecutor asked the witness about the impact on a widow of
“hearing your husband being shot.”
¶35 Because Martinez did not object to the prosecutor’s
question or move for a mistrial, we review for fundamental
error. Gallardo, 225 Ariz. at 568 ¶ 35, 242 P.3d at 167. The
question did not compare the victim to Martinez, but went to
victim impact. See id. at 567 ¶ 25, 242 P.3d at 166 (“Arizona
law generally allows victim impact evidence during the penalty
phase to rebut mitigation.”). The prosecutor did not later
attempt to argue any comparison, and even if the question was
objectionable, Martinez has failed to show the prejudice
necessary to establish fundamental error.
16
3. First penalty phase closing argument
¶36 Martinez further argues the prosecutor committed
misconduct during her first penalty phase closing argument when
she said:
Now Judge Mroz told you, quote, “that you are not
required to find a connection between a mitigating
circumstance and the crime committed in order to
consider the mitigating evidence,” but I suggest to
you a lack of any connection between the mitigating
circumstance and the murder is one thing to consider
in deciding how compelling any mitigating
circumstance[] you may find to have been proven really
is.
Martinez did not object.
¶37 Martinez argues that this statement improperly implied
that the jurors had to find a nexus between Martinez’s childhood
and the murder. But the prosecutor did not tell the jury that a
nexus was required; rather she said lack of a connection can be
considered in determining “how compelling any mitigating
circumstance[] you may find to have been proven really is.”
This is a proper statement of the law. “Although a connection
between a defendant’s proffered mitigation and the crime is not
required, the state may fairly argue that the lack of a nexus to
the crime diminishes the weight to be given alleged mitigation.”
State v. Prince, 226 Ariz. 516, 539 ¶ 91, 250 P.3d 1145, 1168
(2011) (internal quotation omitted).
17
4. Second penalty phase opening statement
¶38 The final alleged misconduct occurred during the
State’s opening statement in the second penalty phase. The
prosecutor discussed the circumstances of the murder and the
facts relating to each prior conviction used to support the
(F)(2) aggravating circumstance. One of the prior acts the
prosecutor discussed was a burglary of the Krustenstjernas’
home, and she acknowledged that Martinez was acquitted on that
charge. Later in her statement, she also talked about the
State’s expert who would testify and suggested Martinez
malingered on that expert’s test because he “will do anything,
say anything, use anyone to save his own skin.” After the
prosecutor finished, Martinez moved for a mistrial, which the
trial court denied.
¶39 Martinez argues that the prosecutor committed
misconduct by mentioning the burglary for which he was acquitted
and by insinuating that he had concocted his mental health
mitigation. Because he objected to both lines of argument, we
review for harmless error if prosecutorial misconduct occurred.
Gallardo, 225 Ariz. at 568 ¶ 35, 242 P.3d at 167.
¶40 Any error in the prosecutor’s mention of the
Krustenstjerna burglary was harmless. The jurors were
instructed that Martinez had been acquitted of that burglary and
they should not use it against him. We presume jurors follow
18
instructions. Tucker, 215 Ariz. at 319 ¶ 89, 160 P.3d at 198.
¶41 As for the insinuation that Martinez concocted his
mental health mitigation, the prosecutor’s statement was not
improper because it was supported by testimony from the State’s
expert that Martinez malingered on examinations. The trial
court correctly denied the motion for mistrial. See State v.
Hallman, 137 Ariz. 31, 37, 668 P.2d 874, 880 (1983) (noting
first prong of test to determine if trial court should grant
mistrial after improper remarks are made is whether it called
jurors’ attention to “matters that they would not be justified
in considering in determining their verdict”).
5. Cumulative effect
¶42 Martinez argues that the prosecutor’s misconduct
permeated the proceedings, rendering his trials fundamentally
unfair. When reviewing such claims, this Court considers
whether “the cumulative effect of the incidents shows that the
prosecutor intentionally engaged in improper conduct and ‘did so
with indifference, if not a specific intent, to prejudice the
defendant.’” State v. Roque, 213 Ariz. 193, 228 ¶ 155, 141 P.3d
368, 403 (2006) (quoting Hughes, 193 Ariz. at 80 ¶ 31, 969 P.2d
at 1192).
¶43 The record does not support Martinez’s argument.
Although Martinez contends the prosecutor continuously was
inappropriate in the courtroom, he objected only twice. Both
19
times, the trial court overruled the objections; it also denied
Martinez’s mistrial motions. The first penalty phase ended in a
hung jury, and the trial court noted that any misconduct seemed
to have prejudiced the jury against the State, not Martinez.
Although the record reflects a few instances in the second
penalty phase in which a witness and defense counsel noted that
the prosecutor was “making faces” and “rolling [her] eyes,”
Martinez did not object and has not shown prejudice.
E. Challenged rebuttal evidence
¶44 Martinez contends that, in the second penalty phase
trial, the trial court erred by admitting as rebuttal evidence
four photographs of stolen items connected to other burglaries
and testimony regarding his visit to a strip bar. “A trial
court’s ruling on the admission of evidence in the penalty phase
is reviewed for an abuse of discretion.” State v. Harrod, 218
Ariz. 268, 279 ¶ 38, 183 P.3d 519, 530 (2008). Because Martinez
objected at trial to the admission of this evidence, if we find
it was improperly admitted, we review for harmless error.
Henderson, 210 Ariz. at 567 ¶ 18, 115 P.3d at 607.
¶45 During the penalty phase, the prosecution “may present
any information that is relevant to any of the mitigating
circumstances,” A.R.S. § 13-751(C), and “any evidence that is
relevant to the determination of whether there is mitigation
that is sufficiently substantial to call for leniency,”
20
including “evidence that demonstrates that the defendant should
not be shown leniency,” § 13-752(G). Although our Rules of
Evidence do not apply to the penalty phase, § 13-751(C), trial
courts must exclude rebuttal “evidence that is either irrelevant
to the thrust of the defendant’s mitigation or otherwise
unfairly prejudicial.” State v. Hampton, 213 Ariz. 167, 180
¶ 51, 140 P.3d 950, 963 (2006). “A judge’s analysis in
determining the relevance of rebuttal evidence involves
fundamentally the same considerations as relevance and prejudice
determinations under Arizona Rules of Evidence 401 and 403.”
Pandeli, 215 Ariz. at 528 ¶ 43, 161 P.3d at 571.
1. Photographs
¶46 The State introduced photographs of some of the items
the police found in a search of Martinez’s sister’s house.
These items included a box that contained an empty zip tie bag,
a boom box connected to another burglary, and a wheelbarrow that
contained burnt items including a driver’s license connected to
the Krustenstjerna burglary. Because the zip tie bag, boom box,
and wheelbarrow were not directly connected to Martinez and did
not rebut his mitigation evidence, they were irrelevant and
should have been excluded. The burnt driver’s license should
have been excluded because it related to the burglary for which
Martinez was acquitted. Any probative value of that evidence
was outweighed by the danger of unfair prejudice.
21
¶47 But the error in admitting this evidence was harmless.
That Martinez’s sister had some stolen items at her house was
relatively minor compared to the strength of the aggravating
circumstances and certainly did not influence the jury’s
decision that the mitigation was not sufficiently substantial to
warrant leniency. Moreover, the jury was instructed to not use
evidence relating to the Krustenstjerna burglary against
Martinez. See Tucker, 215 Ariz. at 319 ¶ 89, 160 P.3d at 198.
2. Strip club
¶48 The State presented evidence that, during an
interrogation after his arrest, Martinez claimed to have been at
a strip club at the time of the murder. The State offered time-
stamped video-surveillance photographs from the club that showed
Martinez paying his entry fee at 1:28 a.m. the morning after the
murder. Martinez objected to the admission of his statement and
the photographs, arguing they were irrelevant and prejudicial.
The trial court overruled the objection.
¶49 The court did not err in admitting this evidence
during the penalty phase because it pertained to whether “the
mitigation was sufficiently substantial to call for leniency.”
See A.R.S. § 13-752(G). Because Martinez claimed he had a low
IQ and brain damage, the evidence that he claimed to have been
at a club when the murder occurred showed he was able to
fabricate an alibi. In addition, the trial court took the extra
22
precaution of precluding the State from referring to the club as
a “strip club” to minimize any unfair prejudice.
F. Admission of accomplice’s prior statements in second penalty
phase
¶50 Martinez argues that the trial court violated his
Sixth Amendment right to confrontation by allowing the State to
introduce in the second penalty phase his accomplice’s
statements through a detective’s testimony.
¶51 In the guilt phase, Martinez’s accomplice, Robert
Arbolida, testified for four days. He testified about the
burglary and murder, stating that Martinez was the shooter and
had attempted to dispose of evidence at his sister’s house.
Martinez’s counsel cross-examined Arbolida for two days,
eliciting testimony showing he had made inconsistent statements
to police.
¶52 Before the second penalty phase, the State noticed its
intent to introduce through Detective Acosta some of Arbolida’s
statements that implicated Martinez as the shooter and that
provided details about the burglary. Martinez objected, arguing
that this testimony violated his Sixth Amendment right to
confrontation under Crawford v. Washington, 541 U.S. 36 (2004).
The trial court overruled Martinez’s objection, citing State v.
McGill, 213 Ariz. 147, 140 P.3d 930 (2006).
¶53 During the second penalty phase, Detective Acosta
23
testified about the statements Arbolida had made to him,
including details of the burglary, the fact that Martinez shot
Vern, and subsequent events. Before completing its direct
examination, the State asked the trial court to limit cross-
examination and not allow defense counsel to “go over all the
inconsistencies that Arbolida ever said” because that would be
attacking the underlying conviction and would be irrelevant,
improper, and a “needless consumption of time.” Defense counsel
stated that he intended to probe the inconsistencies and that it
would not be “fair for the State to be able to present this
sanitized version” and to “cherry-pick the facts.” The trial
court precluded Martinez from revisiting all the inconsistent
statements Arbolida made because they were only relevant to
Martinez’s guilt and the Enmund/Tison4 finding, not Martinez’s
mitigation. But the court indicated that if the inconsistent
statements were relevant to mitigating factors, it would allow
Martinez to ask about them. Martinez protested the trial
court’s ruling, but did not make an offer of proof to show what
statements he would have offered.
¶54 Admission of Arbolida’s statements through the
detective’s testimony did not violate Martinez’s right to
confrontation. We held in McGill that “the Confrontation Clause
4
Enmund v. Florida, 458 U.S. 782 (1982); Tison v. Arizona,
481 U.S. 137 (1987).
24
does not apply to rebuttal testimony at a sentencing hearing.”
213 Ariz. at 159 ¶ 52, 140 P.3d at 942. We decline to revisit
that holding. See State v. Chappell, 225 Ariz. 229, 240 ¶¶ 40-
41, 236 P.3d 1176, 1187 (2010); State v. Martinez, 218 Ariz.
421, 431 ¶ 44, 189 P.3d 348, 358 (2008). Moreover, Martinez had
a full opportunity to confront Arbolida when he initially
testified. The trial court properly admitted this testimony.
¶55 On appeal, Martinez relies only on the Confrontation
Clause to challenge the admission of Arbolida’s statements and
does not now argue that he should have been permitted to impeach
those statements. See State v. Bolton, 182 Ariz. 290, 298, 896
P.2d 830, 838 (1995) (“Failure to argue a claim on appeal
constitutes waiver of that claim.”) Nonetheless we review the
preclusion of impeachment for fundamental error because if a
defendant is deprived of the chance to present relevant
mitigation, “[t]he resulting death sentence cannot stand.”
Skipper v. South Carolina, 476 U.S. 1, 8 (1986); see also
Tennard v. Dretke, 542 U.S. 274, 284-85 (2004) (noting that,
pursuant to the Eighth Amendment, the jury must be able to
consider and give effect to all relevant mitigation evidence
proffered by a defendant).
¶56 Although the trial court did not err in admitting the
detective’s hearsay testimony about Arbolida’s statements, it
should have allowed Martinez to present any inconsistent
25
statements for impeachment. When one party properly introduces
hearsay testimony, cross-examination that calls into question
the veracity of that testimony is relevant to the issue of
leniency. See A.R.S. § 13-752(G) (“At the penalty phase, the
defendant and the state may present any evidence that is
relevant to the determination of whether there is mitigation
that is sufficiently substantial to call for leniency.”); see
also Tennard, 542 U.S. at 284-85 (similarly defining relevant
mitigating evidence); State v. Prince, 226 Ariz. 516, 526-27
¶¶ 13-20, 250 P.3d 1145, 1155-56 (2011) (discussing relevant
evidence in penalty phase).
¶57 Because Martinez did not make an offer of proof,
however, we are unable to find prejudice. See Ariz. R. Evid.
103(a)(2); State v. Kaiser, 109 Ariz. 244, 246, 508 P.2d 74, 76
(1973) (“As a general rule evidence cannot be reviewed on appeal
in the absence of an offer of proof showing that the excluded
evidence would be admissible and relevant.”). We therefore
cannot find fundamental error. See Henderson, 210 Ariz. at 607
¶ 20, 115 P.3d at 567 (holding that fundamental error consists
of both fundamental error and a finding of prejudice).
¶58 In any event, we have reviewed Arbolida’s testimony in
the guilt phase and determined that his inconsistent statements
either concerned the sequence of events for the burglary, his
involvement, or whether a third person may have been involved.
26
These statements concerned matters that were already decided in
the guilt and aggravation phases, and the second penalty phase
jury was instructed to accept the previous findings that
Martinez was guilty of felony murder, that he actually killed
Vern, and that he was a major participant in the crime. None of
Arbolida’s allegedly inconsistent statements would have
constituted mitigating circumstances, nor were they relevant to
the jury determining whether to “impose a sentence less than
death.” § 13-751(G); see State v. Nordstrom, ___ Ariz. ___, ___
¶ 15, ___ P.3d ___ (2012) (“A defendant has no constitutional
right to present residual doubt evidence at sentencing.”)
(internal quotation omitted). No prejudice is apparent from the
record.
G. Alleged issues with a second penalty phase
¶59 Martinez raises two arguments with respect to holding
a second penalty phase before a different jury. He did not
object on either ground in the trial court, so we review for
fundamental error. Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d
at 607.
¶60 Because the first jury was unable to reach a verdict
in the penalty phase, the trial court discharged it and
impaneled a new jury to sentence Martinez pursuant to A.R.S.
§ 13-752(K). Martinez argues that because the court instructed
the jury to accept the aggravating circumstances as proven, it
27
encouraged the jury to abdicate its responsibility in imposing a
death sentence to the other jury in violation of Caldwell v.
Mississippi, 472 U.S. 320 (1985).
¶61 In Caldwell, the Supreme Court concluded “that it is
constitutionally impermissible to rest a death sentence on a
determination made by a sentencer who has been led to believe
that the responsibility for determining the appropriateness of
the defendant’s death rests elsewhere.” 472 U.S. at 328-29.
“We have previously concluded that Caldwell’s dictate is not
violated when different juries determine guilt and sentence if
the sentencing jury is not misled as to its role.” State v.
Moore, 222 Ariz. 1, 18 ¶ 93, 213 P.3d 150, 167 (2009). As long
as “the resentencing jury received clear instruction that it
alone would determine the appropriate sentence,” there is no
Caldwell violation. State v. Dann, 220 Ariz. 351, 361 ¶ 30, 207
P.3d 604, 614 (2009).
¶62 Here, the trial court twice instructed the jury in the
second penalty phase that it alone would determine whether to
impose a death sentence and that its decision would be binding.
Although the court told the jurors to accept the two aggravators
as proven, it also instructed them to separately assess the
severity of the aggravators in making their sentencing
determination. No Caldwell violation occurred. See People v.
Murtishaw, 773 P.2d 172, 183 & n.8 (Cal. 1989) (rejecting the
28
same argument and stating that “the prior jury was not
defendant’s ‘sentencer;’ . . . it merely resolved a factual
issue which rendered defendant eligible for the death penalty.
The normative function of deciding which penalty should actually
be imposed was entirely in the second jury’s hands.”).
¶63 Martinez also argues that § 13-752(K), as applied to
him, is unconstitutionally vague because it “does not establish
procedures governing the admission, to a new jury during the
second penalty phase, of evidence of the aggravating factors
previously found by the aggravation-phase jury.” In Prince, we
rejected this argument, finding that “the statutes governing the
second penalty phase provide sufficient guidance” and are not
vague. 226 Ariz. at 527 ¶ 20, 250 P.3d at 1156. Moreover, as
the State asserts, Martinez has not shown any prejudice because
all of the information presented to the aggravation phase jury
was also provided to the second penalty phase jury.
H. Motion to disqualify the Maricopa County Attorney’s Office
¶64 Martinez argues that the superior court abused its
discretion when it denied his motion to disqualify the Maricopa
County Attorney’s Office. We review a trial court’s ruling on a
motion to disqualify the prosecutor for an abuse of discretion.
State v. Williams, 136 Ariz. 52, 57, 664 P.2d 202, 207 (1983).
¶65 Before the second penalty phase, Martinez moved to
disqualify the Maricopa County Attorney’s Office based on its
29
filing of a RICO complaint against two Maricopa County Superior
Court judges, as well as its filing felony criminal charges
against one of those judges. But Martinez subsequently withdrew
his motion after it was assigned, along with similar motions in
other cases, to a judge from Cochise County.
¶66 A few days later, Martinez and thirty other defendants
filed a joint motion to disqualify the Maricopa County
Attorney’s Office, alleging that “[t]he appearance of judicial
impropriety caused by [former Maricopa County Attorney] Andrew
Thomas and [Maricopa County Sheriff] Joe Arpaio is supported by
overwhelming evidence that requires Thomas’ disqualification
under Arizona law.” While this motion was pending, Thomas
resigned from office. Subsequently, the Cochise County judge
dismissed the motion as moot.
¶67 There was no abuse of discretion. The thrust of
Martinez’s motion concerned Thomas and did not allege any
improper conduct by other members of his office. Once Thomas
resigned, the issue was moot. Martinez generally alleged that
judges in his case were intimidated into ruling unfairly when
Thomas was in office. But the only specific allegation of bias
was another judge’s denial of two of Martinez’s motions. In
ruling on both motions, that judge made detailed findings and
noted his dissatisfaction with the handling of capital cases in
Maricopa County. Although these rulings went against Martinez,
30
they clearly were not the product of fear of repercussions from
the County Attorney. Martinez generally alleges that Thomas
likely intimidated the other judges involved in his case. But
he provides no support for this allegation, and any intimidation
necessarily ended with Thomas’s resignation.
III. REVIEW OF DEATH SENTENCE
¶68 Martinez asks this Court to reduce his sentence to
life imprisonment. Because Martinez committed the murder after
August 1, 2002, we review “whether the trier of fact abused its
discretion in finding aggravating circumstances and imposing a
sentence of death.” A.R.S. § 13-756(A).
A. Aggravating circumstances
¶69 Martinez does not challenge the jury’s finding of the
(F)(2) and (F)(5) aggravating circumstances. Nonetheless, we
review whether the jury abused its discretion in finding them.
Morris, 215 Ariz. at 340-41 ¶ 77, 160 P.3d at 219-20. “Under
this standard of review, we uphold a decision if there is any
reasonable evidence in the record to sustain it.” Id. (internal
quotation omitted).
¶70 The jury did not abuse its discretion in finding each
aggravating circumstance. The State proved the (F)(2)
aggravator by showing Martinez had nineteen serious offense
convictions. See supra § II(C), ¶¶ 16-23.
¶71 The record also contains sufficient evidence
31
supporting the jury’s finding that Martinez committed the murder
for pecuniary gain. See § 13-751(F)(5). Martinez and Arbolida
“scoped out” Betty and Laurel’s home, left to retrieve a gun,
and then returned wearing gloves and masks to commit the
burglary and theft. They took various items from the home,
Martinez shot Vern, and then he and Arbolida fled with the
stolen property. Martinez went to the victims’ home expecting
pecuniary gain, and the murder allowed him “to keep the stolen
property and avoid capture.” See Martinez, 218 Ariz. at 435
¶ 68, 189 P.3d at 362; see also State v. Ellison, 213 Ariz. 116,
143 ¶ 125, 140 P.3d 899, 926 (2006) (finding pecuniary gain
aggravating circumstance proven when defendant went to victims’
home to commit burglary and committed the murders to “escape and
avoid identification”).
B. Propriety of death sentence
¶72 Martinez argues the jury abused its discretion by
finding a death sentence appropriate because he introduced
substantial mitigation warranting leniency. This Court “will
not reverse the jury’s decision [to impose the death penalty] so
long as any reasonable jury could have concluded that the
mitigation established by the defendant was not sufficiently
substantial to call for leniency.” Morris, 215 Ariz. at 341
¶ 81, 160 P.3d at 220.
¶73 The jury did not abuse its discretion. Although
32
Martinez presented evidence of his low IQ and brain damage, the
State effectively rebutted it with evidence that he malingered,
lowering his performance on the tests. See State v. Cruz, 218
Ariz. 149, 170-71 ¶ 138, 181 P.3d 196, 217-18 (2008). Also,
because Martinez was forty-one years old when he committed the
murder, the jury was entitled to give less weight to mitigating
evidence stemming from his childhood. See Prince, 226 Ariz. at
541 ¶ 109, 250 P.3d at 1170 (“Difficult childhood circumstances
also receive less weight as more time passes between the
defendant’s childhood and the offense.”). Based on the facts of
the crime, the two strong aggravating factors, and the
Enmund/Tison finding that Martinez actually killed the victim, a
reasonable jury could find Martinez’s mitigation did not warrant
leniency. See State v. Cota, 229 Ariz. 136, ___ ¶ 95, 272 P.3d
1027, 1044 (2012) (“Even if we assume that Cota proved each of
his alleged mitigating factors, the jury still did not abuse its
discretion here by finding the mitigation insufficient to
warrant leniency.”); State v. Villalobos, 225 Ariz. 74, 85 ¶ 51,
235 P.3d 227, 238 (same).
CONCLUSION
¶74 For the foregoing reasons, we affirm Martinez’s
convictions and sentences.5
5
Martinez raises twelve issues to avoid preclusion on
federal review. His statements of those issues and the cases he
33
_____________________________________
Robert M. Brutinel, Justice
CONCURRING:
_____________________________________
Rebecca White Berch, Chief Justice
_____________________________________
Scott Bales, Vice Chief Justice
_____________________________________
A. John Pelander, Justice
APPENDIX
1. The fact-finder in capital cases must be able to consider
all relevant mitigating evidence in deciding whether to give
the death penalty. See Woodson v. North Carolina, 428 U.S.
280, 304, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976). The trial
court’s failure to allow the jury to consider and give
effect to all mitigating evidence in this case by limiting
its consideration to that proven by a preponderance of the
evidence is unconstitutional under the Eighth and Fourteenth
Amendments. This Court rejected this argument in McGill,
213 Ariz. at 161 ¶ 59, 140 P.3d at 944.
2. By allowing victim impact evidence at the penalty phase of
the trial, the trial court violated defendant’s
constitutional rights under the Fifth, Sixth, Eighth and
Fourteenth Amendments and Article 2, Sections 1, 4, 13, 15,
23, and 24 of the Arizona Constitution. This Court rejected
challenges to the use of victim impact evidence in Lynn v.
Reinstein, 205 Ariz. 186, 191 ¶ 16, 68 P.3d 412, 417 (2003).
3. The trial court improperly omitted from the penalty phase
cites rejecting his contentions are presented verbatim in the
Appendix.
34
jury instructions words to the effect that they may consider
mercy or sympathy in deciding the value to assign the
mitigation evidence, instead telling them to assign whatever
value the jury deemed appropriate. The court also
instructed the jury that they “must not be influenced by
mere sympathy or by prejudice in determining these facts.”
These instructions limited the mitigation the jury could
consider in violation of the Fifth, Sixth, Eighth and
Fourteenth Amendments and Article 2, Sections 1, 4, 15, 23,
and 24 of the Arizona Constitution. This Court rejected
this argument in State v. Carreon, 210 Ariz. 54, 70-71
¶¶ 81-87, 107 P.3d 900, 916-17 (2005).
4. The death penalty is cruel and unusual under any
circumstances and violates the Eighth and Fourteenth
Amendments, and Article 2, Section 15 of the Arizona
Constitution. This Court rejected this argument in State v.
Harrod, 200 Ariz. 309, 320 ¶ 59, 26 P.3d 492, 503 (2001),
vacated on other grounds, 536 U.S. 953, 122 S. Ct. 2653, 153
L. Ed. 2d 830 (2002).
5. The death penalty is irrational and arbitrarily imposed; it
serves no purpose that is not adequately addressed by life
in prison, in violation of the defendant’s right to due
process under the Fourteenth Amendment to the United States
Constitution and Article 2, Sections 1 and 4 of the Arizona
Constitution. This Court rejected these arguments in State
v. Beaty, 158 Ariz. 232, 247, 762 P.2d 519, 534 (1988).
6. The prosecutor’s discretion to seek the death penalty lacks
standards and therefore violates the Eighth and Fourteenth
Amendments, and Article 2, Sections 1, 4, and 15 of the
Arizona Constitution. This Court rejected this argument in
State v. Sansing, 200 Ariz. 347, 361 ¶ 46, 26 P.3d 1118,
1132 (2001), vacated on other grounds, 536 U.S. 954, 122 S.
Ct. 2654, 153 L. Ed. 2d 830 (2002).
7. Arizona’s death penalty is applied so as to discriminate
against poor, young, and male defendants in violation of
Article 2, Sections 1, 4, and 13 of the Arizona
Constitution. This Court rejected this argument in Sansing,
200 Ariz. at 361 ¶ 46, 26 P.3d at 1132.
8. Proportionality review serves to identify which cases are
above the “norm” of first-degree murder, thus narrowing the
class of defendants who are eligible for the death penalty.
The absence of proportionality review of death sentences by
35
Arizona courts denies capital defendants due process of law
and equal protection and amounts to cruel and unusual
punishment in violation of the Fifth, Eighth, and Fourteenth
Amendments, and Article 2, Section 15 of the Arizona
Constitution. This Court rejected this argument in Harrod,
200 Ariz. 320 ¶ 65, 26 P.3d at 503.
9. Arizona’s death penalty unconstitutionally requires
imposition of the death penalty whenever at least one
aggravating circumstance and no mitigating circumstances
exist, in violation of the Eighth and Fourteenth Amendments,
and Article 2, Section 15 of the Arizona Constitution.
Arizona’s death penalty law cannot constitutionally presume
that death is the appropriate default sentence. This Court
rejected this argument in State v. Miles, 186 Ariz. 10, 19,
918 P.2d 1028, 1037 (1996).
10. Execution by lethal injection is cruel and unusual
punishment in violation of the Eighth and Fourteenth
Amendments, and Article 2 sec. 15 of the Arizona
Constitution. This argument was rejected in State v. Van
Adams, 194 Ariz. 408, 422, 984 P.2d 16, 30 (1999).
11. Arizona’s statutory scheme for considering mitigation
evidence is unconstitutional because it limits full
consideration of that evidence. State v. Mata, 125 Ariz.
233, 242, 609 P.3d 48, 57 (1980).
12. “If you unanimously find that no mitigation exists or that
mitigation is not sufficiently substantial to call for
leniency, you may impose the death penalty.” See e.g. State
v. Tucker, 215 Ariz. 298 (2007) (instructing juror that he
or she must vote to impose a death sentence if he or she
does not find any mitigation sufficiently substantial to
call for leniency does not create impermissible “presumption
of death”); State v. Harrod, 218 Ariz. 268 (2008); State v.
Cruz, 218 Ariz. 149 (2008).
36