State of Arizona v. Ronnie Lovelle Joseph

SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-10-0138-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2005-014235-001
RONNIE LOVELLE JOSEPH, )
)
Appellant. ) O P I N I O N
_________________________________ )
Appeal from the Superior Court in Maricopa County
The Honorable Arthur T. Anderson, Judge
AFFIRMED
________________________________________________________________
THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
Amy Pignatella Cain, Tucson
Assistant Attorney General
Jeffrey A. Zick, Phoenix
Assistant Attorney General
Attorneys for State of Arizona
MICHAEL J. DEW ATTORNEY AT LAW Phoenix
By Michael J. Dew
Attorney for Ronnie Lovelle Joseph
________________________________________________________________
B E R C H, Chief Justice
¶1 A jury found Ronnie Lovelle Joseph guilty of felony
murder and other crimes. He was sentenced to death for the
murder and to prison terms on the other convictions. 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. FACTS AND PROCEDURAL HISTORY1
¶2 Ronnie Joseph went to the apartment where his wife,
Darlene Brown, lived with Jerry Roundtree and her fourteen-year-
old nephew, Tommar Brown. Joseph and Darlene began to argue in
Darlene’s locked bedroom, and Joseph pulled a gun and shot her.
Jerry kicked open the bedroom door, but turned and ran when he
saw Joseph holding a gun. Joseph shot at him, hitting him in
the hand.
¶3 As Jerry fled, he saw Tommar go into the bathroom.
Joseph pushed open the bathroom door and fired two or three
shots, hitting Tommar in his left buttock and chest. The shot
to Tommar’s chest passed through his heart, killing him.
¶4 Joseph saw Jerry near the front door of the apartment
and shot him in the chest before returning to Darlene’s bedroom
and firing a few more shots, at least two of which hit Darlene.
Joseph then fled.
¶5 When police arrived, both Darlene and Jerry identified
Joseph as the shooter. Police apprehended Joseph three days
later.
¶6 The jury found Joseph guilty of the first degree murder
of Tommar, attempted second degree murder of Darlene, attempted
first degree murder of Jerry, first degree burglary, and
1
We view the facts in the light most favorable to sustaining
the jury’s verdict. State v. Dann, 205 Ariz. 557, 562 n.1, 74
P.3d 231, 236 n.1 (2003).
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misconduct involving weapons. In the aggravation phase of the
trial, the jury found two aggravating factors: Joseph
previously had been convicted of a serious offense, A.R.S. § 13-
751(F)(2) (2010), and the victim was less than fifteen years
old, id. § 13-751(F)(9). Joseph did not present any mitigating
evidence in the penalty phase, and the jury determined that he
should be sentenced to death for Tommar’s murder. The trial
judge imposed prison terms for the other convictions.
II. ISSUES ON APPEAL
A. Confrontation Clause
¶7 To prepare for his testimony, the State’s medical
expert, Dr. Philip Keen, reviewed Tommar’s autopsy report, which
Dr. Ruth Kohlmeier had prepared. Dr. Kohlmeier did not testify
and the report itself was not admitted into evidence. Joseph
asserts that the trial court violated his Sixth Amendment right
to confront Dr. Kohlmeier when, over his objection, it allowed
Dr. Keen to testify based on Dr. Kohlmeier’s report. We review
de novo whether the admission of evidence violates the
Confrontation Clause. See State v. Smith, 215 Ariz. 221, 228
¶ 20, 159 P.3d 531, 538 (2007).
¶8 This Court has previously held that a testifying
medical examiner may offer an opinion based on an autopsy
performed by a non-testifying expert without violating the
Confrontation Clause. Id. at 229 ¶ 26, 159 P.3d at 539; see
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also State v. Tucker, 215 Ariz. 298, 315 ¶ 62, 160 P.3d 177, 194
(2007). We reasoned that “[b]ecause the facts underlying an
expert’s opinion are admissible only to show the basis of that
opinion and not to prove their truth, an expert does not admit
hearsay or violate the Confrontation Clause by revealing the
substance of a non-testifying expert’s opinion.” Tucker, 215
Ariz. at 315 ¶ 62, 160 P.3d at 194. Joseph presents no argument
persuading us to abandon this reasoning today.
¶9 Joseph asserts that Dr. Keen’s testimony
“constructively placed [the autopsy report] before the jury,”
making the report like the affidavit of the non-testifying
witness in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009).
But this case differs in two material respects from Melendez-
Diaz. Here, the court did not admit the autopsy report into
evidence and the State presented testimony by a witness subject
to cross-examination.
¶10 Even if the autopsy report were itself “testimonial,”
Dr. Keen did not testify to any of Dr. Kohlmeier’s conclusions.
Cf. United States v. Feliz, 467 F.3d 227, 236 (2d Cir. 2006)
(stating that autopsy reports are not testimonial because they
are not prepared for purposes of litigation). He testified
instead to opinions he formed after reviewing facts and
photographs contained in the report. See State v. Dixon, 226
Ariz. 545, 553 ¶¶ 36-37, 250 P.3d 1174, 1182 (2011) (finding no
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error when medical examiner testified based on his review of an
autopsy report and photographs).
¶11 Joseph also argues that the State’s failure to
establish Dr. Kohlmeier’s unavailability violated his right to
confrontation. Before testimonial statements of an absent
witness may be admitted into evidence, the Confrontation Clause
requires a showing that the witness is unavailable and that the
defendant had a prior opportunity for cross-examination.
Bullcoming v. New Mexico, 131 S. Ct. 2705, 2713 (2011). But
here, no testimonial “statement” by Dr. Kohlmeier was admitted
into evidence. The report itself was not admitted and Dr. Keen
did not testify to any of Dr. Kohlmeier’s conclusions. Instead,
Dr. Keen testified to his own conclusions regarding Tommar’s
injuries and did not act as a mere “conduit” for Dr. Kohlmeier’s
opinions. See State v. Snelling, 225 Ariz. 182, 187 ¶ 19, 236
P.3d 409, 414 (2010). Thus, there was no error.
¶12 Finally, Joseph argues that the trial court abused its
discretion by denying his motion to limit Dr. Keen’s testimony
and failing to instruct the jury not to consider the facts
recited by Dr. Keen for their truth. But in Smith, this Court
concluded that “[e]xpert testimony that discusses reports and
opinions of another is admissible under [Arizona Rule of
Evidence 703] if the expert reasonably relied on these matters
in reaching his own conclusion.” 215 Ariz. at 228 ¶ 23, 159
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P.3d at 538; see also Williams v. Illinois, 132 S. Ct. 2221,
2228 (2012) (“Out-of-court statements that are related by the
expert solely for the purpose of explaining the assumptions on
which that opinion rests are not offered for their truth and
thus fall outside the scope of the Confrontation Clause.”)
(plurality opinion). Similarly, testimony regarding an autopsy
photograph is not hearsay when offered to show the basis of the
testifying expert’s opinion and not to prove the truth of prior
reports or opinions. Smith, 215 Ariz. at 228 ¶ 23, 159 P.3d at
538.
¶13 The trial court did not err in permitting Dr. Keen to
testify about the basis for his conclusions regarding Tommar’s
injuries and cause of death. Dr. Keen’s testimony did not
exceed its permissible scope, and he did not offer any matters
contained in Dr. Kohlmeier’s autopsy report to show their truth.
Although the trial court might properly have given a limiting
instruction regarding the use of Dr. Keen’s testimony, Joseph
did not request one and the failure to give it was not
fundamental error.
B. Enmund/Tison Instructions
¶14 Joseph contends that the trial court erred by denying
his request for an Enmund/Tison jury instruction at the
aggravation phase of trial. We review a trial court’s refusal
to give requested instructions for an abuse of discretion.
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State v. Johnson, 212 Ariz. 425, 431 ¶ 15, 133 P.3d 735, 741
(2006).
¶15 The jury found Joseph guilty of felony murder for
killing Tommar during the course of a burglary. The Eighth
Amendment does not allow the death penalty to be imposed for
felony murder unless the defendant “himself kill[s], attempt[s]
to kill, or intend[s] that a killing take place or that lethal
force will be employed,” Enmund v. Florida, 458 U.S. 782, 797
(1982), or is a major participant in the crime and acts with
reckless indifference, Tison v. Arizona, 481 U.S. 137, 157-58
(1987). Joseph does not dispute that he acted alone in killing
Tommar. Because Enmund allows imposition of capital punishment
on a defendant who actually kills a victim in the course of
committing another felony, 458 U.S. at 797-98, the Eighth
Amendment did not require that an Enmund/Tison instruction be
given.
¶16 Joseph nonetheless asserts that the State failed to
present sufficient evidence of his intent to kill to support
imposition of the death penalty. He argues that because the
felony murder instruction required only a finding that he caused
Tommar’s death during the course of the felony, without
reference to any mental state, the one juror who voted for
felony murder but not premeditated murder might have believed
that Joseph unintentionally killed Tommar, and such intent
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cannot suffice to support the death penalty.
¶17 Joseph misapprehends the Enmund/Tison requirements. A
defendant convicted of felony murder may receive a death
sentence regardless of his intent if he actually kills a victim
during the course of a felony, or if he is a major participant
along with others in committing the felony and “acts with
reckless indifference to human life.” State v. Garcia, 224
Ariz. 1, 15 ¶ 55, 226 P.3d 370, 384 (2010) (citing Tison, 481
U.S. at 158).
¶18 Here, the jury found Joseph guilty of felony murder
because he fatally shot Tommar during the course of first degree
burglary. The burglary was established because Joseph brought a
gun into the apartment and remained there unlawfully, intending
to commit the attempted murders at issue. See A.R.S. §§ 13-
1507, -1508 (2010). Sufficient evidence supports the felony
murder finding. Enmund required the State to show only that,
during the commission of a felony, Joseph personally killed
Tommar, a fact that is not in dispute. The State must show
“reckless indifference” to human life only when the defendant is
a major participant in the felony, but is not the actual killer.
See Garcia, 224 Ariz. at 15 ¶ 55, 226 P.3d at 384 (because the
defendant was convicted under Tison, the State had to prove
beyond a reasonable doubt that he had acted as a major
participant in the crime and was recklessly indifferent to the
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victim’s life); State v. Bearup, 221 Ariz. 163, 170 ¶ 33, 211
P.3d 684, 691 (2009) (same); accord People v. Letner, 235 P.3d
62, 132 (Cal. 2010) (rejecting argument that death sentence
cannot be imposed on actual killer convicted of felony murder
absent finding that defendant was a major participant and had a
culpable mental state). Joseph does not dispute that he shot
and killed Tommar during the commission of a felony. Thus,
there is sufficient evidence to support the imposition of the
death penalty. The trial court did not abuse its discretion by
not giving an Enmund/Tison instruction in this case.
C. Waiver of Mitigation
¶19 Joseph argues that his waiver of the right to present
mitigating evidence was “constitutionally invalid” because he
did not make his waiver knowingly, voluntarily, and
intelligently.
¶20 Although a defendant has a “constitutionally protected
right[] to provide the jury with the mitigating evidence,”
Williams v. Taylor, 529 U.S. 362, 393 (2000), he may waive that
right even if mitigating evidence exists, see Schriro v.
Landrigan, 550 U.S. 465, 476 (2007); accord State v. Hausner,
___ Ariz. ___, ___ ¶¶ 121-22, ___ P.3d ___, ___ (2012); State v.
Delahanty, 226 Ariz. 502, 507-08 ¶¶ 28-34, 250 P.3d 1131, 1136-
37 (2011). The Supreme Court has never imposed an “informed and
knowing” requirement upon a defendant’s decision to waive
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mitigating evidence, Landrigan, 550 U.S. at 479, but this Court
requires a voluntary, knowing, and informed waiver of this
important constitutional right, see Delahanty, 226 Ariz. at 504
¶ 5, 508 ¶ 34, 250 P.3d at 1133, 1137.
¶21 We recently addressed this issue in detail in Hausner,
___ Ariz. at ___ ¶ 122, ___ P.3d at ___, and there set forth the
inquiries that the trial court should make to determine that the
defendant (1) understands what mitigation is, the right to
present mitigation evidence, and the consequences of waiving
that right, and (2) makes the decision voluntarily.
¶22 The trial judge here took many of the steps recommended
in Hausner and repeatedly had Joseph confirm that he understood
his rights and yet chose not to present any mitigating evidence.
For example, during a status conference after the guilt phase,
the judge explained the penalty phase and what mitigation might
entail:
As you know, that is the time where the jury considers
any mitigation evidence they may have found [in] the
case thus far, and any mitigating evidence they might
find during the mitigation or penalty phase itself.
And as I indicated before, it’s a pretty wide open
presentation. There could be witnesses that could be
called on your behalf. You can speak on your behalf.
You can also submit something in writing, if you
choose, to alert the jury to any factors that you
believe are mitigating; or in other words, to have
them render a finding that leniency would be
appropriate here.
Joseph replied that he wanted to waive his right to mitigation.
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After continued discussion, the court reminded Joseph that he
could do as he chose, but cautioned that the court had to ensure
that Joseph understood his rights.
¶23 The trial court explained mitigation to Joseph at
length. Joseph demonstrated that he understood the consequences
of the penalty phase by giving such responses as, “there’s no
mitigation circumstances that I would ask you to feel pity or
mercy on me. Let the hatchet fall.” His statements satisfied
the “knowing” requirement. Joseph also stated that “death don’t
scare me,” reflecting his understanding that his case could
result in a death sentence and that he could ask the jury for
“pity or mercy” if he so desired. The court found Joseph
competent and detailed its reasons for allowing Joseph to waive
mitigation.
¶24 Joseph repeatedly expressed his desire not to present
mitigating evidence. Although defense counsel notified the
court pursuant to Rule 15.2(h) of certain mitigating
circumstances that might have helped Joseph’s case and later
made an offer of proof of mitigating circumstances, Joseph
voluntarily refused to present any mitigating evidence or
statements during the penalty phase. We conclude that Joseph’s
waiver of his right to present mitigation was voluntary,
knowing, and informed.
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D. Review of the Death Sentence
¶25 Because the murder occurred after August 1, 2002, we
review the death sentence to “determine whether the trier of
fact abused its discretion in finding aggravating circumstances
and imposing a sentence of death.” A.R.S. § 13–756(A) (2010).
A finding of aggravating circumstances or the imposition of a
death sentence is not an abuse of discretion if “there is any
reasonable evidence in the record to sustain it.” State v.
Morris, 215 Ariz. 324, 341 ¶ 77, 160 P.3d 203, 220 (2007)
(internal quotation marks omitted).
¶26 The jury found two aggravating factors proven: Joseph
previously had been convicted of a serious offense, A.R.S. § 13-
751(F)(2), and the victim was less than fifteen years of age,
§ 13-751(F)(9). Joseph does not contest either finding and the
record supports the jury’s findings.
¶27 Once an aggravating factor has been established, the
penalty phase jury determines whether, in light of any
mitigating circumstances, death is the appropriate penalty.
A.R.S. §§ 13-751(C), -752(D), (F).
¶28 Although Joseph elected not to present any mitigating
evidence, the jury still could consider in mitigation “any
evidence that was presented at any prior phase of the trial.”
A.R.S. § 13-752(I). The record, however, shows little
mitigation. The jury did not abuse its discretion in concluding
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that the mitigating circumstances were not sufficiently
substantial to call for leniency.
III. CONCLUSION
¶29 We affirm Joseph’s convictions and sentences.2
_____________________________________
Rebecca White Berch, Chief Justice
CONCURRING:
_____________________________________
Scott Bales, Vice Chief Justice
_____________________________________
A. John Pelander, Justice
_____________________________________
Robert M. Brutinel, Justice
2
Joseph did not challenge any of the non-capital convictions
or sentences. He did raise eighteen claims to avoid federal
preclusion. Those claims, and the opinions by this Court he
identifies as rejecting them, are presented verbatim in the
Appendix.
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APPENDIX: ISSUES RAISED TO AVOID PRECLUSION
1. The death penalty is per se cruel and unusual punishment.
Gregg v. Georgia, 428 U.S. 153, 186-87, 96 S.Ct 2909, 49 L. Ed. 2d
859 (1976); State v. Salazar, 173 Ariz. 399, 411, 844 P.2d 566,
578 (1992); State v. Gillies, 135 Ariz. 500, 507, 662 P.2d 1007,
1014 (1983).
2. Execution by lethal injection is cruel and unusual
punishment. State v. Hinchey, 181 Ariz. 307, 315, 890 P.2d 602,
610 (1995).
3. The death statute is unconstitutional because it fails to
guide the sentencing jury. State v. Greenway, 170 Ariz. 155,
164, 823 P.2d 22, 31 (1991).
4. The statute unconstitutionally fails to require either
cumulative consideration of multiple mitigating factors or that
the jury make specific findings as to each mitigating factor.
State v. Gulbrandson, 184 Ariz. 46, 69, 906 P.2d 579, 602
(1995); State v. Ramirez, 178 Ariz. 116, 131, 871 P.2d 237, 252
(1994); State v. Fierro, 166 Ariz. 539, 551, 804 P.2d 72, 84
(1990).
5. Arizona’s statutory scheme for considering mitigating
evidence is unconstitutional because it limits full
consideration of that evidence. State v. Mata, 125 Ariz. 233,
242, 609 P.2d 48, 57 (1980).
6. Arizona’s death statute insufficiently channels the
sentencer’s discretion in imposing the death sentence. State v.
West, 176 Ariz. 432, 454, 862 P.2d 192, 214 (1993); Greenway,
170 Ariz. at 162, 823 P.2d at 31.
7. Arizona’s death statute is unconstitutionally defective
because it fails to require the State to prove that death is
appropriate. Gulbrandson, 184 Ariz. at 72, 906 P.2d at 605.
8. The prosecutor’s discretion to seek the death penalty
unconstitutionally lacks standards. Salazar, 173 Ariz. at 411,
844 P.2d at 578.
9. The Constitution requires a proportionality review of a
defendant’s death sentence. Salazar, 173 Ariz. at 416, 844 P.2d
at 583; State v. Serna, 163 Ariz. 260, 269-70, 787 P.2d 1056,
1065-66 (1990).
10. There is no meaningful distinction between capital and non-
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capital cases. Salazar, 173 Ariz. at 411, 844 P.2d at 578.
11. Applying a death statute enacted after the Supreme Court’s
decision in Ring II violates the ex post facto clauses of the
federal and state constitutions and A.R.S. § 1-244. Ring III,
204 Ariz. at 545-47 ¶¶ 15-24, 65 P.3d at 926-928.
12. The death penalty is cruel and unusual because it is
irrationally and arbitrarily imposed and serves no purpose that
is not adequately addressed by life in prison. State v. Pandeli,
200 Ariz. 365, 382, ¶ 88, 26 P.3d 1136, 1153 (2001), vacated on
other grounds, Ring v. Arizona, 536 U.S 584, 122 S. Ct. 2428, 153
L. Ed. 2d 556 (2002); State v. Beaty, 158 Ariz. 232, 247, 762 P.2d
519, 534 (1988).
[13. missing; no text]
[14. missing; no text]
15. Arizona’s death penalty statute is unconstitutional because
it requires imposition of the death penalty whenever at least
one aggravating circumstance and no mitigating circumstances
exist. Walton v. Arizona, 497 U.S. 639, 648, 110 S. Ct. 3047, 111
L. Ed. 2d 511 (1990); State v. Miles, 186 Ariz. 10, 19, 918 P.2d
1028, 1037 (1996); State v. Bolton, 182 Ariz. 290, 310, 896 P.2d
830, 850 (1995). State v. Tucker (“Tucker II”), 215 Ariz. 298,
160 P.3d 177 (2007).
16. The death penalty is unconstitutional because it permits
jurors unfettered discretion to impose death without adequate
guidelines to weigh and consider appropriate factors and fails
to provide means to distinguish between those who deserve to die
or live. State v. Johnson, 212 Ariz. 425, 440 ¶ 69, 133 P.3d
735, 750 (2006).
17. The trial court improperly omitted penalty phase
instructions that the jury could consider mercy or sympathy in
evaluating the mitigation evidence and determining whether to
sentence the defendant to death. State v. Carreon, 210 Ariz. 54,
70-71 ¶¶ 81-87, 107 P.3d 900, 916-17 (2005).
18. The jury instruction that required the jury to unanimously
determine that the mitigating circumstances were “sufficiently
substantial to call for leniency” violated the Eighth Amendment.
State v. Ellison, 213 Ariz. 116, 139 ¶¶ 101-102, 140 P.3d 899,
922 (2006).
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19. The refusal to permit voir dire of prospective jurors
regarding their views on specific aggravating and mitigating
circumstances violates Appellant’s rights under the Sixth and
Fourteenth Amendments. State v. Johnson, 212 Ariz. 425, 440 ¶¶
29-35, 133 P.3d 735, 750 (2006).
20. Refusing to instruct the jury or permit the introduction of
evidence and argument regarding residual doubt violated
Appellant’s rights under the Sixth, Eighth and Fourteenth
Amendments and Arizona law. State v. Harrod (Harrod III), 218
Ariz. 268, 278-79 ¶¶ 37-39, 183 P.3d 519, 529-30 (2008); State
v. Garza, 216 Ariz. 56, 70 ¶ 67, 163 P.3d 1006, 1020 (2007).
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