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Arizona Judicial Branch

2016-2018

State v. Goudeau, 239 Ariz. 421, 372 P.3d 945 (2015)
(Death Sentence: Affirmed)

PROCEDURAL POSTURE:
Based on DNA evidence, Mark Henry Goudeau was arrested in September 2006 for some sexual assaults committed in 2005. Further investigation led police to suspect Goudeau was involved in a series of murders, kidnappings, sexual assaults, aggravated assaults, armed robberies, and various other crimes against thirty-three different victims in the Phoenix area on twelve separate dates between August 2005 and June 2006.

In a single indictment, the State charged Goudeau with 74 felonies, including nine first degree felony murders for which the State sought the death penalty. The trial court denied Goudeau’s pretrial motion to sever the counts for trial. The court granted the State’s request to divide the presentation of its guilt-phase evidence into thirteen chronological “chapters” corresponding to the dates on which various offenses were committed.

After a seventy-two day trial that spanned seven-and-a-half-months, the jury returned guilty verdicts on 67 of the counts charged, including all nine of the first degree murder charges.

For each murder conviction, the jury found that Goudeau had been previously convicted of both a life-or-death-eligible offense, (F)(1), and a serious offense, (F)(2), and also that he was on release from prison when he committed the murders, (F)(7)(a). The jury further found that Goudeau committed eight of the nine murders in an especially cruel manner, (F)(6), and four of them while committing another murder, (F)(8). In the penalty phase, during the testimony of his first mitigation witness, Goudeau decided to waive any further mitigation and thus presented no further evidence. He did, however, make an allocution statement. The jury ultimately returned death verdicts on all nine murder convictions after finding the mitigating evidence insufficiently substantial to call for leniency.

On automatic appeal, the Supreme Court affirmed the convictions and sentences.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (PRIOR DEATH-ELIGIBLE OFFENSE) – UPHELD
Defendant did not challenge the jury’s finding of the (F)(1) aggravator.

(F)(2) (PRIOR CONVICTION / SERIOUS OFFENSE) – UPHELD
Defendant claimed that using the same felonies three times in the sentencing calculus violated the Double Jeopardy Clause of the Fifth Amendment. This argument fails, however, because the predicate felonies to the felony-murder convictions were not the only prior convictions supporting the (F)(2) aggravator in this case. The State presented evidence of five serious offense convictions from 1989 and 1990, as well as the defendant’s prior convictions for the crimes against two sisters.

The defendant’s claim also fails on the merits. The Court has rejected the argument that double jeopardy prohibits a court from sentencing a defendant to prison for the same felonies used as felony murder predicates and capital sentencing aggravators.

(F)(6) (“Especially Cruel”) –
The Court held that there was sufficient evidence from which any reasonable juror could find the (F)(6) “especially cruel” aggravator as to eight of the nine murders. The Court held that the following evidence was sufficient to support a finding that each victim experienced physical and/or mental anguish before death and that the defendant knew or should have known that suffering would occur:

(1)   Testimony established that more than fifteen seconds before the defendant shot her in the head, she begged to be let go and screamed. The victim was found with her pants unzipped and unbuttoned, though her belt was still buckled.

(2)   This victim was found dead in an isolated alley that was not on the route to her regular bus stop. The evidence showed that she had been shot twice; the first shot was not fatal and she raised her hand in front of her face as if to shield against a second shot. The second and fatal shot was fired from close range. Like the previous victim, she screamed before she died.

(3)   These two victims were discovered dead in the back of their food truck with a gunshot wound to each of their heads. Their pants were unbuttoned and partially pulled down. It appeared that R had been shot before V because a shell casing was found under V's body and V's leg was resting on top of R's leg. The jury could reasonably infer that they disrobed under threat of being shot, rather than being shot by surprise while disrobing, and that V then witnessed the defendant shoot R before he pointed the gun at her.

(4)   The evidence showed that C and S left the restaurant where they worked in C's car. Their coworker always saw C turn his car and drive past the restaurant as he was leaving, but on the evening in question the coworker did not see C's car make that turn. C was later found dead in an alley with a gunshot wound to his head. S was found dead in the front passenger seat of C's car, about one mile from the alley, with a gunshot wound to her head and her pants unbuttoned and partially unzipped. The evidence further showed that both C and S were shot by someone seated in the back seat. From this evidence, the jury could have reasonably inferred that the defendant, positioned in the back seat, held the victims at gunpoint while he forced C to drive, and that both victims suffered severe mental anguish during the car ride. Further, the jury could find that S suffered significant uncertainty as to her ultimate fate after the defendant shot C and continued the ride for another mile before also shooting her.

(5)   This victim was found dead in her bathtub with a gunshot wound to her head. She had a few bruises, her bra was undone and shirt pulled up exposing her breasts, and she was still wearing pants. Her eyes were open when she was shot from the front at close range. The jury could have reasonably inferred that she was conscious while the defendant threatened her at gunpoint.

(6)   The evidence showed that this victim screamed and struggled as the defendant ambushed her at a carwash and forced her into the backseat of her car. She was later found dead in a nearby parking lot with a gunshot wound to her head. Her eyes were open when the defendant shot her; her pants were pulled down; she had recent abrasions on her right shoulder, left upper arm, and inside lower lip; and she had small bruises on her wrists and numerous bruises on her legs consistent with a struggle to keep her pants on.

(F)(7)(a) (MURDER COMMITTED WHILE ON RELEASE FROM DOC) – UPHELD
Defendant did not challenge the jury’s finding of the (F)(7) aggravator.

(F)(8) (MULTIPLE HOMICIDES) – UPHELD
The defendant challenged the (F)(8) aggravator as to two of the four victims. The (F)(8) aggravator exists if “[t]he defendant has been convicted of one or more other homicides . . . that were committed during the commission of the offense.” The jury could reasonably infer that the defendant, while seated in the back seat, kidnapped and robbed C and S at gunpoint, and killed them to facilitate his plan to rob them, sexually assault S, or eliminate witnesses .The evidence was sufficient to support a finding that the murders of S and C were motivationally-related and took place in a continuous course of criminal conduct.

MITIGATING  CIRCUMSTANCES:
During trial, the defendant presented limited mitigation evidence through his mental health expert that he suffered from adverse developmental factors that affected his culpability, including “probable fetal alcohol exposure,” learning disorders, genetic predisposition to substance abuse and psychological disorders, neglect, inadequate supervision, and exposure to community violence and drug abuse. The expert further opined that the defendant would not pose a danger in prison. On cross-examination, the State elicited evidence to rebut the alleged mitigating factors.

JUDGMENT:  Death sentence affirmed.


State v. (Aaron Brian) Gunches, 240 Ariz. 198, 377 P.3d 993 (2016)
(Death Sentence Upheld)

PROCEDURAL POSTURE:
Original Trial and Sentencing/Appeal
In October 2003, Aaron Brian Gunches was indicted on charges of first degree murder and kidnapping. The State noticed its intent to seek the death penalty. After the trial court found Gunches competent to stand trial and to waive his right to counsel, Gunches chose to represent himself. He then pleaded guilty to both counts.

In the aggravation phase, Gunches stipulated that he was previously convicted of a serious offense (attempted murder), an aggravating circumstance under A.R.S. § 13-751(F)(2). The jury also found as an aggravating circumstance under § 13-751(F)(6) that Gunches committed the murder in an especially heinous or depraved manner. Gunches presented virtually no mitigation evidence in the penalty phase, but did request leniency in allocution. The jury determined that he should be sentenced to death.

On direct appeal, this Court found that the jury’s finding of the (F)(6) aggravating factor was error and therefore vacated Gunches’s death sentence and remanded the case for a new penalty phase trial.

On remand for Resentencing

On remand during the second penalty phase, Gunches again waived his right to counsel and decided to not present any mitigation evidence. He did not request leniency in allocution. The jury determined that Gunches should be sentenced to death. His direct, automatic appeal to this Court followed.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Post-1993: PRIOR SERIOUS OFFENSE) – UPHELD
The trial court did not err by refusing to determine the legal sufficiency of the prior conviction supporting the (F)(2) aggravator and denying Defendant’s motion to strike the State’s allegation of that aggravator as it was:

Procedurally defaulted (The defendant stipulated to the an out-of-county conviction as an aggravating factor (F)(2) at his first trial, and the jury found the factor proven. By not objecting to the legal sufficiency at trial or even raising the issue on appeal, the claim was procedurally defaulted. The remand was solely for the penalty phase “not to revisit issues relating to the aggravation phase or the (F)(2) aggravator.”
Untimely
(The Rules provide a pretrial mechanism for challenging the legal sufficiency of an aggravating factor and a time period for doing so. Rules 16; 13.5. Arizona Rules of Criminal Procedure; see Chronis v. Steinle. Raising a challenge at the penalty phase retrial is far beyond the “no later than 20 days pretrial” time limit imposed by the rules.) Wrong forum (The validity of a prior conviction is properly challenged in a post-conviction claim of ineffective assistance in the original out-of-county case.)            

MITIGATING  CIRCUMSTANCES:
The jury inquired whether the death penalty would have been sought had the instant case, rather than the out-of-county case, been tried first. The trial court did not commit fundamental error when, without objection, it responded to the jurors’ question during deliberations by telling them that the subject they asked about “has no legal significance”. The trial court responded that the order of trials “had no legal significance.” The Supreme Court held that the court’s response was “somewhat unresponsive” but was not an incorrect statement of the law. The impact of the order of the cases on a charging decision was both legally irrelevant and speculative. Further, there was no prejudice, as the trial court did not prevent the jury from considering the order as potentially mitigating, but rather properly instructed that each juror should find the mitigating factors and should then, individually, assess “the totality of the mitigation” and the “totality of the aggravation.” The prosecutor did not misstate the evidence when he said “there is no mitigation.” Under Busso, the defendant’s guilty plea may be evidence of remorse, a mitigating factor. The defendant did not object to the prosecutor’s “there’s no mitigation” statement, or rebut it in his own closing. The prosecutor’s statement amounted to permissible argument and inferences reasonably supported by the evidence and did not constitute prosecutorial misconduct. Further, out of the presence of the jury, the defendant explained that he did not consider the guilty plea mitigating, even while acknowledging that it “has been considered a mitigating factor.”

JUDGMENT:  Death sentence affirmed.
(Because the murders occurred after August 1, 2002, the court reviewed the death sentences 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).)

The Court held:
...We must conduct this review even if, as here, the defendant does not argue that the jury‘s verdict was an abuse of discretion. ….Given the established aggravating circumstance under § 13-751(F)(2) based on Gunches’s uncontested prior conviction, the jury did not abuse its discretion in determining that there was no mitigation sufficiently substantial to call for leniency.

State v. (Joel Randu) Escalante-Orozco, 241 Ariz. 254, 386 P.3d 798 (2017)
(Death Sentence: Remanded for Resentencing)

PROCEDURAL POSTURE:
In March 2001, Defendant Escalante-Orozco was employed as a live-in maintenance worker at the apartment complex where the victim lived; she was found dead in her apartment. The victim had been beaten, sexually assaulted, and stabbed to death. Around the same time, Defendant left the area without informing the apartment management. Defendant was arrested six years later. The State indicted him on one count of first degree murder, two counts of sexual assault and one count of burglary in the first degree, and sought the death penalty. During trial, the court dismissed one of the sexual assault charges, and the jury found Defendant guilty on all remaining counts.

The jury found that the homicide was especially cruel, A.R.S. § 13-751(F)(6) making the Defendant death-eligible. After considering mitigation evidence, the jury determined that Defendant should receive the death penalty. The trial court thereafter sentenced Defendant to death and imposed consecutive terms of imprisonment for the sexual assault and burglary convictions.

The Defendant appealed his conviction and resulting sentences for one count each of first-degree murder, sexual assault, and burglary in the first degree. The court affirmed the Defendant’s convictions and non-death sentences. However, “[T]o comply with the United States Supreme Court’s decision in Lynch v. Arizona, 136 S. Ct. 1818 (2016), [the Court vacated] the death sentence and remand[ed] for a new penalty phase.

Penalty Phase Issue
“Future dangerousness”
¶¶116-127
At trial the Defendant objected to the jury instruction that if it imposed a life sentence, the trial court would decide between life imprisonment without the possibility of release of with the possibility of release after 25 years arguing (1) that the jury should not consider the potential for release and (2) that clemency, and not parole, was available under Arizona law. In accordance with Arizona decisions, the trial court denied Defendant’s objections and gave the then-approved instruction.
Defendant did not waive the Simmons issue by failing to argue that the State put “future dangerousness” at issue; he preserved the issue by objecting to the instruction; explained that the jury should not consider the possibility of release; provided an instruction that accurately described clemency as the only means of release available to him; and argued Simmons in his motion for new trial, all of which adequately indicated his concern.
Although the State may not have explicitly put “future dangerousness” at issue, (1) evidence introduced by the State, including the brutality of the murder; violent incidents involving Defendant’s ex-wife; fighting with a third party and biting off a finger; graphic crime scene and autopsy photos; past incidents of violence; and (2) argument made by the State, including references to other “incidents” and “forfeited right to live,” may infer “future dangerousness.”
Although the evidence introduced by the State may have a purpose other than “future dangerousness,” such as to rebut mitigation, by arguing that the Defendant “forfeited the right to live” and focusing on that evidence and the instant crime the State placed the Defendant’s future dangerousness at issue.
Although Simmons error may be harmless, the Supreme Court has not conducted harmless error analysis or mentioned harmless error in its Simmons decisions. And the State has not proven “beyond a reasonable doubt that the error did not contribute to or affect the verdict or the sentence,” given that “…only one aggravator was found and a great deal of mitigating evidence was introduced; Defendant is in his forties, and the jury could have believed he would live to see release and the jury deliberated for about thirteen hours, which suggests it gave careful consideration to the sentencing options. We cannot know what role the possibility of release played in the jurors’ minds as they decided the propriety of the death penalty.”

The Court concluded:
¶127 For all these reasons, the State placed [Defendant’s] future dangerousness at issue. In light of the Supreme Court’s decision in Lynch, the trial court erred by refusing to tell the jury that [the Defendant] was ineligible for parole. The error was not harmless.

AGGRAVATING CIRCUMSTANCES:

(F)(6) ("Especially Cruel")
Proving (F)(6) “physical pain and mental anguish” requires consideration of “[t]he entire murder transaction” and not only the final act of killing. Mental anguish includes a victim’s contemplation of her ultimate fate, which can be established by defensive injuries, and does not require that the victim be conscious for every wound, that a certain amount of time elapse, or that the order of the wounds be established. Additionally, the defendant either knew or should have known of the pain/mental anguish based on the violence of the struggle and the attack from the front. Evidence supported his awareness of his actions (rather than a dissociative state resulting from psychosis or drug use) as he made a plan to evade authorities.

JUDGMENT: Remanded for Resentencing (Penalty Phase).


State v. (Abel Daniel) Hidalgo, 241 Ariz. 543, 390 P.3d 783 (2017)
(Death Sentence Upheld)

PROCEDURAL POSTURE:
Defendant accepted a thousand dollars to kill the victim in December 2000, the owner of a repair shop. On the day of the murder, in January 2001, defendant waited in his car for the shop to open. When the shop owner began unlicking the shop door, defendant approached and indicated to the owner he had repair work to be done. An upholstery worker joined the two men and all three went into the shop. Defendant killed the upholsterer and then his intended victim, the owner, with one shot each. He then shot each victim five more times.

Because he thought he had been seen driving away, Defendant sold his car and left the state. While Defendant was making various arrangements, his godmother overheard conversations in which he admitted murdering two men. A year later she told authorities, who located the defendant in Idaho where he was in federal custody for murdering two women. Defendant confessed to murdering the owner in exchange for a thousand dollars and to murdering the upholsterer to eliminate an eyewitness.

In January 2015, as trial was set to begin, Defendant plead guilty to two counts of first degree murder and one count of first degree burglary. A jury found four aggravating factors ((F)(1); (F)(2); (F)(5); (F)(8)), considered mitigation, and sentenced defendant to death. The judge imposed 10.5 years on the burglary conviction.

The Supreme Court determined the jury did not abuse its discretion in sentencing Hidalgo to death for each murder. It affirmed all convictions and sentences.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (PRIOR DEATH-ELIGIBLE OFFENSE) – UPHELD
Hidalgo’s federal convictions for murdering two women in 2002 were punishable by a sentence of life imprisonment or death; either conviction establishes the (F)(1) aggravator.

(F)(2) (PRIOR CONVICTION / SERIOUS OFFENSE) – ERROR; but UPHELD
To prove the (F)(2) aggravator, the State must establish that the defendant has been “previously convicted of a serious offense, whether preparatory or completed.” Because the legislature did not amend the statute to permit consideration of offenses concurrently committed or charged until 2003, two years after the murders, the State erred when if argued that the concurrent first degree burglary supported the (F)(2) aggravator.

However, Hidalgo’s federal convictions for murdering two women in 2002 were punishable by a sentence of life imprisonment or death; either conviction would establish the (F)(1) aggravator.

The Court gives “extraordinary weight” to the multiple murders aggravating circumstance.

(F)(5) (PECUNIARY GAIN) – UPHELD
To prove the pecuniary gain aggravator, the state must show that “the expectation of pecuniary gain is a motive, cause, or impetus for the murder and not merely a result of the murder.” The State proved the (F)(5) aggravator because Hidalgo confessed that he accepted $1000 in exchange for murdering one of the victims.

The pecuniary gain aggravator is “especially strong” in the case of a contract killing.

(F)(8) (MULTIPLE HOMICIDES) – UPHELD
To prove the multiple homicides aggravator, the state must show that the murders were “temporally, spatially, and motivationally related, taking place during one continuous course of criminal conduct.” Hidalgo plead guilty to murdering the victims within minutes of one another inside the auto-body shop. He admitted having accepted money to killing one victim and to killing the other in order to eliminate an eyewitness. His confession established the (F)(8) aggravator.

MITIGATING  CIRCUMSTANCES:
Defendant presented several witnesses who explored his difficult and abusive childhood, which included physical and sexual abuse by his parents and extended family, gang affiliation, poverty, juvenile incarceration, and drug use. He was diagnosed with attention deficit hyperactivity disorder (“ADHD”), conduct disorder, post-traumatic stress disorder (“PTSD”), and antisocial personality disorder (“APD”). Defendant presented evidence that while in prison he renounced his gang affiliation and participated in educational and self-improvement programs. Defendant expressed remorse and a desire to be rehabilitated.

JUDGMENT: Convictions and death sentence affirmed.
(Because the murders occurred after August 1, 2002, the court reviewed the death sentences 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).)