Estefana Holmes was a poor seamstress and 59 year old grandmother who
lived alone. Police found her half-naked body in her home with three
major stab wounds to her head, one on her face, and 23 in her left
breast and upper chest. She had been blindfolded and gagged with her own
clothing, and her throat had been slit. Blood was splattered on walls in
the kitchen, bathroom and bedroom. Semen found on her body matched Lopez
after he was arrested in a separate rape less than a week later.
State v. Lopez, 163 Ariz. 108, 786 P.2d 959 (Ariz. 1990). (Direct
State v. Lopez, 175 Ariz. 407, 857 P.2d 1261 (Ariz. 1993).
(Direct Appeal After Remand)
Lopez v. Ryan, 630 F.3d 1198 (9th Cir. 2011). (Habeas)
Final / Special Meal:
One red and one green chili burrito, Spanish rice, jalapeno, avocado,
cottage cheese, french fries, vanilla ice cream and pineapple.
Arizona Department of
Inmate: SAMUEL V. LOPEZ
Hair Color: Brown
Eye Color: Brown
Conviction Imposed: MURDER 1ST DEGREE (DEATH),
Kidnapping (21 years), Sexual Assault (21 years), Burglary 1st Degree
Date of Offense: 10/29/1986
Samuel Villegas Lopez
Date of Birth: June 30,
On October 29, 1986, Lopez broke
into the apartment of 59-year-old Estafana Holmes.
Lopez raped, beat, and stabbed
Ms. Holmes. Her body was found nude from the waist down, with her pajama
bottoms tied around her eyes. A lace scarf was crammed tightly into her
She had been stabbed 23 times in
the left breast and upper chest, three times in her lower abdomen, and
her throat was cut. Lopez' body fluids matched seminal fluids found in
Ms. Holmes' body.
Presiding Judge: Peter T. D'Angelo
Prosecutor: Paul Abler
Start of Trial: April 16, 1987
Verdict: April 27, 1987
Sentencing: June 25, 1987
Resentencing: August 3, 1990
Prior conviction involving violence (struck on appeal)
State v. Lopez (Samuel V.), 163 Ariz. 108, 786 P.2d 959 (1990).
State v. Lopez (Samuel V.), 175 Ariz. 407, 857 P.2d 1261 (1993).
Arizona killer Samuel Lopez executed for 1986
By Bob Ortega - AZCentral.com
Jun. 27, 2012
An Arizona inmate was put to death Wednesday for a
1986 brutal rape and killing, in the state's first execution allowing
witnesses to watch prison officials inject a lethal drug into a
prisoner. The U.S. Supreme Court late Thursday denied death-row inmate
Samuel Lopez's final appeal, clearing the way for his execution at 10
a.m. today in Florence.
Lopez's attorney, assistant federal public defender
Kelley Henry, said there would be no other efforts to block his
execution. Lopez, 49, was convicted in 1987 of raping and murdering
Estefana Holmes in her Phoenix apartment. On Friday, the Arizona Supreme
Court also denied a stay, and Arizona's Board of Executive Clemency
denied a commutation bid. His execution was the first in which witnesses
will watch, via closed-circuit TV, the insertion of the catheters that
deliver the fatal drug pentobarbital. Attorneys for inmates in prior
executions condemned the practice of inserting catheters into the
prisoners' groins. Officials said the executioners had found it
difficult to find suitable veins in the arms and legs.
In earlier executions, witnesses only saw the
prisoner after the catheters had been inserted.
Two more condemned prisoners whose appeals are
nearing their end could be executed by the end of the year, which would
put the state on pace to match its busiest year for executions and among
the busiest death-penalty states in the nation. Of the 126 inmates on
Arizona's death row, only five have been there longer than Lopez.
The U.S. Supreme Court turned down his last appeal on
Tuesday, paving the way of the execution. He also lost a number of
last-minute efforts to avoid the death penalty, including a request with
the state Supreme Court to delay his execution until Arizona has a new
governor. He claimed that Gov. Jan Brewer and the state's clemency board
were prejudiced against him. Brewer denied his lawyer's allegations that
she placed "political cronies" on the board who'll never recommend
lessening a death-row inmate's sentence to life in prison.
In denying him clemency, the board members called him
"the worst of the worst." Defense attorney Kelley Henry didn't dispute
Lopez's guilt, but focused on the fact that trial attorneys failed to
present any evidence that Lopez had a horrific childhood -- a mitigating
factor that could have gotten him a sentence of life in prison. A
neuropsychiatrist testified that Lopez's childhood was filled with
poverty, neglect, abuse and periods of homelessness during which he
often had to sleep in cemeteries. Lopez dropped out of school in the
ninth grade and became addicted to sniffing paint.
In an affidavit provided to the board, Lopez wrote
that he has no memory of the crime because he had been spending so much
time sniffing paint that he would forget entire days.
Lopez was convicted of killing Holmes, a poor
seamstress and grandmother who lived alone. On Oct. 30, 1986, police
found her half-naked body with three major stab wounds to her head, one
on her face, and 23 in her left breast and upper chest. She had been
blindfolded and gagged with her own clothing, and her throat had been
slit. Blood was splattered on walls in the kitchen, bathroom and
bedroom. Semen found on her body matched Lopez's after the 24-year-old
was arrested in a separate rape less than a week later.
The state Supreme Court in 1993 upheld Lopez's death
sentence, saying that the state of Holmes' apartment and her body showed
"a terrific struggle for life" and calling the killing a "grisly and
ultimately fatal nightmare."
He later wrote in the affidavit to the clemency board
that "what happened to Ms. Holmes was so horrible and so wrong. I've
been always been sorry for what she went through that night and for what
her family has gone through ever since." Lopez did not know Holmes, who
was described by her family as hard-working, loving and deeply
religious. Nearly a dozen of her family members, some of whom planned to
witness the execution, pleaded with the clemency board to allow the
execution to proceed.
"Let me ask you, Mr. Lopez, did our sister plead for
her life as you stabbed her two dozen times?" said Sarah Bryant, one of
Holmes' sisters. "Did she beg you not to rape her? Did she plead with
you to spare her life as you almost decapitated her? Did she?" "Nothing
will bring her back, but you should pay for it," she said.
Arizona executes killer who fought clemency board
By David Schwartz - Reuters.com
Jun 27, 2012
(Reuters) - A convicted murderer who challenged the
fairness of Arizona's clemency board and won a temporary reprieve was
executed by lethal injection on Wednesday for raping, beating and
stabbing a woman to death in 1986. Samuel Villegas Lopez, 49, was
executed at the state prison complex in Florence, about 60 miles
southeast of Phoenix. The execution began at 10:08 a.m. local time and
he was pronounced dead at 10:37 a.m., state officials said.
Lopez was sentenced to death in 1987 for raping
59-year-old Estafana Holmes and stabbing her to death in a violent,
drawn-out assault at her Phoenix apartment. Authorities found her body
with her eyes blindfolded with her pajama pants and her mouth stuffed
tightly with a lace scarf. She was naked from the waist down and had
been stabbed 23 times in the chest and three times in the abdomen.
During questioning several days later on an unrelated matter, court
records show that Lopez asked about a woman who had been stabbed and had
her throat slashed. Information about the victim's throat being cut had
not been publicly released by police. His fingerprints and bodily fluids
also matched those found at the scene, records show. He was convicted of
first-degree murder, sexual assault, kidnapping and burglary.
Arizona Attorney General Tom Horne said: "Almost 26
years later, justice has been served for the family of Essie Holmes."
"The judge who sentenced Lopez to death found that the crime was
especially heinous, cruel and depraved, and among the worst he had ever
seen," Horne said in a statement. "Now that Samuel Villegas Lopez has
paid the penalty for his terrible crime, it is my hope that his victims
and their families will find some peace that justice has been carried
out," he added.
Lopez won a temporary reprieve on May 15 after
successfully arguing that he would not get a fair hearing from the state
Board of Executive Clemency as some members had not completed their
training. The Arizona Supreme Court ordered a temporary stay so that the
board members could complete a mandatory four-week training course.
Lopez then sought a second stay arguing that Republican Governor Jan
Brewer had appointed "political cronies" to the board, making a fair
hearing impossible, which was rejected by the state Supreme Court.
On Friday, the clemency board unanimously rejected
his bid to have his sentence commuted to life in prison or receive a
reprieve. Lopez had no last words. His final meal consisted of one red
and one green chili burrito, Spanish rice, jalapeno, avocado, cottage
cheese, french fries, vanilla ice cream and pineapple.
He was the fourth Arizona inmate executed this year
and the 32nd since the state reinstated the death penalty in 1992.
Twenty-three people have been executed in the United States this year,
according to the Death Penalty Information Center.
(Writing by Tim Gaynor; Editing by Cynthia Johnston
and Richard Chang)
State v. Lopez, 163 Ariz. 108, 786 P.2d 959
(Ariz. 1990). (Direct Appeal)
Following a jury trial, the Superior Court, Maricopa
County, No. CR–163419, Peter T. D'Angelo, J., convicted defendant of
first-degree murder, kidnapping, sexual assault, and burglary, and
sentenced defendant to death for murder and to aggravated, consecutive
terms of 21 years for each of the other convictions. Defendant appealed.
The Supreme Court, Moeller, J., held that: (1) trial court's instructing
jury on two theories of first-degree murder but submitting only one form
of verdict for first-degree murder did not violate due process or amount
to fundamental error; (2) defendant was not entitled to instruction on
second-degree murder; (3) prior conviction for resisting arrest could
not be used as aggravating circumstance under statute; and (4)
constitutional provision did not preclude legislature from authorizing
judges to impose death penalties. Affirmed in part, and remanded for
Defendant, Samuel Villegas Lopez, was convicted of
first degree murder, kidnapping, sexual assault, and burglary. He was
sentenced to death for the murder and to aggravated, consecutive terms
of twenty-one years for each of the other convictions. He appeals. We
have jurisdiction under Ariz. Const. art. 6, § 5(3), and A.R.S. §
1. Whether the trial court erred by instructing the
jury on two theories of first degree murder but submitting only one form
of verdict for first degree murder. 2. Whether the trial court erred by
denying defendant's motion for directed verdicts on the sexual assault
charges. 3. Whether the trial court erred by not instructing the jurors
on second degree murder. 4. Whether the trial court committed
fundamental error by failing to give a Willits instruction sua sponte.
5. Whether the jury instruction on dangerousness constituted fundamental
error. 6. Whether the trial court erred by finding that defendant's
prior conviction for resisting arrest was a felony “involving the use or
threat of violence on another person” within the meaning of A.R.S. §
13–703(F)(2). 7. Whether the trial court erred by finding that the
murder was especially cruel within the meaning of A.R.S. § 13–703(F)(6).
8. Whether the trial court erred by finding that defendant failed to
establish as a mitigating circumstance that his capacity to appreciate
the wrongfulness of his conduct or to conform his conduct to the
requirements of law was significantly impaired. 9. Whether art. 4, pt.
1, § 1(6) of the Arizona Constitution precludes the Arizona Legislature
from authorizing judges to impose death penalties.
On October 29, 1986, sometime around 11:00 a.m., a
Phoenix police officer made a “check welfare” call at the apartment
residence of the murder victim. The check was in response to a call from
the victim's fellow employees expressing concern that the consistently
prompt victim inexplicably failed to arrive at work. Approaching the
apartment, officers noticed a broken window next to the front door.
Entering the apartment, they discovered the partially nude body of the
victim. Overturned and broken furnishings in the blood-splattered
apartment indicated that a tremendous struggle took place prior to the
murder. A scarf had been stuffed into the victim's mouth, and she had
been blindfolded with her pajama pants. An autopsy revealed that her
throat had been slashed, and she had been stabbed twenty-three times in
her left breast and upper chest and three times in her lower abdomen.
Seminal fluid was found in both her vagina and anus.
Defendant had been seen in the neighborhood the night
of the crime. He was also seen in the early morning after the murder
walking down the street, soaking wet, as if he had recently washed
himself. Several days after the murder, the police were questioning
defendant about an unrelated matter when he mentioned something about a
woman who had been stabbed and whose throat had been slashed. The
information that the victim's throat had been slashed had never been
released to the public. Realizing that only the murderer would know of
the slashing, the police focused their investigation upon defendant. A
check of his fingerprints matched those found at the victim's apartment
and his body fluids matched those obtained from the victim's body.
A jury convicted defendant of first degree murder,
sexual assault, kidnapping, and burglary. After a sentencing hearing,
the trial judge found two statutory aggravating circumstances: (1) the
defendant had a prior conviction for resisting arrest, which was
considered a death-qualifying conviction under A.R.S. § 13–703(F)(2);
and (2) the murder was committed in an especially heinous, cruel or
depraved manner under A.R.S. § 13–703(F)(6). In support of mitigation,
defendant argued that his capacity to appreciate the wrongfulness of his
conduct or to conform his conduct to the requirements of law was
significantly impaired. The trial court found that defendant did not
prove this mitigating factor by a preponderance of the evidence. Finding
no other mitigation, the trial judge sentenced defendant to death for
the murder and to aggravated, consecutive terms of twenty-one years for
each of the other convictions.
1. First Degree Murder Verdict Form
Defendant contends that the state's use of two
theories of first degree murder (premeditated and felony murder) and the
use of two felonies supporting the felony murder charge (sexual assault
and burglary) denied him due process of law and the right to a unanimous
We have held that it is permissible to submit one
form of verdict to a jury for first degree murder although the state
proceeds under both premeditation and felony murder theories. See State
v. Smith, 160 Ariz. 507, 513, 774 P.2d 811, 817 (1989). In a case
predating Smith, we held that, although a unanimous jury verdict is
required on whether the defendant committed the criminal act charged, a
“defendant is not entitled to a unanimous verdict on the precise manner
in which the act was committed.” State v. Encinas, 132 Ariz. 493, 496,
647 P.2d 624, 627 (1982). In the Smith case, we did urge trial courts in
the future to submit alternate forms of verdict when alternate theories
of first degree murder are submitted to a jury. The instant case was
tried prior to the issuance of the Smith opinion.
In this case, the defendant refines somewhat the
argument made and rejected in Smith and Encinas. Defendant challenges
the use of one verdict form when two felonies in support of the felony
murder theory are alleged. He contends this deprived him of a unanimous
jury verdict and due process. We note, however, that defendant was in
fact unanimously convicted of both of the underlying felonies of sexual
assault and burglary. Thus, defendant clearly was not prejudiced. In any
event, we see no distinction between the state's use of dual felony
murder theories and the state's use of dual first degree murder
theories. In neither event is a defendant entitled to a unanimous
verdict on the precise manner in which the crime is committed. See
Encinas, 132 Ariz. at 496, 647 P.2d at 627.
2. Motion for Directed Verdict on Sexual Assault
Defendant was charged with two counts of sexual
assault. The state's theory was that one assault occurred with vaginal
penetration and the other assault occurred with anal penetration. A
toxicologist testified that it was possible that the seminal fluid
leaked from the vagina to the rectum. After the state rested its case,
defendant moved for a directed verdict on the sexual assault counts. The
court denied the motion. During deliberations, the jury inquired whether
one count related to anal intercourse and one to vaginal intercourse.
After being informed that such was the case, the jury convicted on one
count of sexual assault and acquitted on the other. On appeal, defendant
contends the evidence is insufficient to support the one guilty verdict.
Under A.R.S. § 13–1406(A), sexual assault is
committed “by intentionally or knowingly engaging in sexual intercourse
... with any person without consent of such person.” Defendant contends
that there is a lack of evidence of force or fear accompanying the
sexual act and that the evidence precludes a finding that consent was
withheld. In part, defendant appears to argue that the intercourse may
have occurred after death. For purposes of determining the sufficiency
of the evidence, the toxicologist's testimony that his tests showed that
the sexual act “happened right prior to death” disposes of this
argument. R.T. 5/22/87, at 24. In determining the sufficiency of the
evidence, we view the evidence in the light most favorable to sustaining
the verdict and resolve all reasonable inferences against the defendant.
State v. Long, 121 Ariz. 280, 589 P.2d 1312 (1979). Our task is to
determine whether sufficient evidence existed so that a rational trier
of fact could have found guilt beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Our review
of the evidence, some of which is referred to in the above statement of
facts, leads inexorably to the conclusion that the trial court properly
denied the motion for directed verdict.
3. Instructing the Jury on Second Degree Murder
Defendant contends the jury should have been
instructed on second degree murder based on evidence of defendant's
intoxication. The jury did receive an instruction informing it as to the
legal effect of intoxication. The trial court, however, denied
defendant's request for a second degree murder instruction. As
previously discussed, the state proceeded on dual theories of first
degree murder in this case, i.e., premeditated and felony murder. No
lesser-included homicide offense exists for felony murder; thus, the
trial court did not err by failing to so instruct on the felony murder
theory. State v. Celaya, 135 Ariz. 248, 255, 660 P.2d 849, 856 (1983)
(citing State v. Arias, 131 Ariz. 441, 641 P.2d 1285 (1982)).
Under A.R.S. § 13–1101(1), premeditated murder occurs
if the defendant intends or knows that his acts will kill another and
his intention or knowledge precedes the killing by a length of time
sufficient to permit reflection. See State v. Rankovich, 159 Ariz. 116,
122, 765 P.2d 518, 524 (1988). The jury may consider voluntary
intoxication to negate the mental state of “intentionally” but not the
mental state of “knowingly.” See A.R.S. § 13–503; State v. Ramos, 133
Ariz. 4, 6, 648 P.2d 119, 121 (1982). See also State v. Neal, 143 Ariz.
93, 98, 692 P.2d 272, 277 (1984) (“first degree murder requires an
‘intentional’ or ‘knowing’ mens rea on the part of the assailant and
voluntary intoxication only negates the ‘intentional’ mens rea.”).
Assuming arguendo the jurors found that defendant was intoxicated, they
could properly convict defendant of first degree murder if they believed
he “knowingly” caused the victim's death. Because a defendant need only
act knowingly in committing a premeditated murder, evidence of
defendant's intoxication did not require the trial court to instruct the
jury on second degree murder. The jurors were properly instructed that
intoxication could negate intention, although they obviously rejected
that possibility because they found him guilty of several intentional
4. Willits Instruction
On cross-examination, the state's serology expert
acknowledged that additional scientific tests existed that, if
performed, could possibly have further defined and narrowed the blood
groups identified. Defendant argues that because these tests, if
performed, might have excluded him, he was entitled to a Willits
instruction although he did not request one. A Willits instruction is
appropriate when the state destroys or loses evidence potentially
helpful to the defendant. See State v. Willits, 96 Ariz. 184, 393 P.2d
274 (1964); see also State v. Hansen, 156 Ariz. 291, 295, 751 P.2d 951,
955 (1988) ( Willits instruction upon proof that (1) the state failed to
preserve material evidence that was accessible and might have tended to
exonerate the defendant, and (2) prejudice resulted). Having preserved
the evidence and given defendant an opportunity to test it, the state
does not violate due process by failing to perform any particular tests.
Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281
Because defendant did not request a Willits
instruction, he recognizes that he cannot be heard to complain on appeal
unless the error, if any, rises to the level of fundamental error.
However, we find no error, fundamental or otherwise. In this case, the
blood samples were collected, tested, and preserved by the state. The
blood and saliva samples from defendant, the blood sample from the
victim, another blood sample from the apartment, and the filter paper
with the victim's vaginal smear were all released to defendant for
independent testing at the Institute of Forensic Sciences in Oakland,
California. Defendant had an expert analyze the blood evidence but did
not call that expert at trial. Clearly, defendant had ample opportunity
to have any additional test conducted which might exonerate him. The
record does not support defendant's present claim that the trial court
should have sua sponte given a Willits instruction.
5. Instruction on Dangerous Offense
Shortly after the indictment, the state filed an
allegation of dangerousness, pursuant to A.R.S. § 13–604, alleging that
the crimes were committed with a deadly weapon or dangerous instrument,
to wit: a knife or knife-type instrument. At trial, the trial court
instructed the jury, without objection, that a dangerous offense
involves the “use of a deadly weapon or dangerous instrument, or the
intentional or knowing infliction of serious bodily injury upon
another.” Although defendant did not object to this instruction at
trial, he contends on appeal that it constitutes fundamental error
because it (1) was duplicitous, and (2) allowed punishment to be
increased by the jury's finding on a basis not charged. The trial court
did not err by giving the instruction. The defendant's first argument,
relating to alleged duplicity, is without merit. In State v. O'Brien,
123 Ariz. 578, 582, 601 P.2d 341, 345 (App.1979), duplicity was defined
as “charging multiple offenses in a single count.” The court of appeals
continued that “a count is not considered duplicitous merely because it
charges alternate ways of violating the same statute.” Id. at 583, 601
P.2d at 346. Similarly, we find that an instruction that tracks the
statutory language of A.R.S. § 13–604 in defining alternate ways for a
finding of dangerousness is not “duplicitous.”
Defendant's second argument concerning the
instruction on dangerousness is also meritless, and is disposed of by
State v. Villafuerte, 142 Ariz. 323, 690 P.2d 42 (1984), cert. denied,
469 U.S. 1230, 105 S.Ct. 1234, 84 L.Ed.2d 371 (1985). In Villafuerte,
the state's allegation of dangerousness was cast only in terms of the
“intentional or knowing infliction of serious physical injury upon
another.” 142 Ariz. at 329, 690 P.2d at 48. The trial court instructed
the jury that use of a dangerous instrument could render the felony
dangerous. Defendant contended on appeal that the allegation relative to
injury was insufficient to put him on notice or to convict him of a
dangerous felony based upon a finding of the use of a dangerous
instrument. Following a discussion of earlier cases, we held in
Villafuerte that the allegation of dangerousness by reason of injury was
adequate to support a conviction with a finding of dangerousness by use
of an instrument. This case represents merely the flip side of the same
coin. We find no error.
6. Prior Felony Conviction Under A.R.S. §
With respect to the death penalty, one of the two
statutory aggravating circumstances found by the court was that
defendant was previously convicted of a felony “involving the use or
threat of violence on another person” under A.R.S. § 13–703(F)(2). The
prior conviction was for resisting arrest under A.R.S. § 13–2508. Citing
State v. Gillies, 135 Ariz. 500, 662 P.2d 1007 (1983), defendant argues
that, for a prior felony to qualify under A.R.S. § 13–703(F)(2), it must
by its statutory definition necessarily involve the use or threat of
violence upon another person. We recently followed and explained Gillies
in State v. Romanosky, 162 Ariz. 217, 227, 782 P.2d 693, 703 (1989),
where we held “[i]f, under the statutory definition the defendant could
have committed and been convicted of the crime without using or
threatening violence, the prior conviction may not qualify as a
statutory aggravating circumstance under A.R.S. § 13–703(F)(2).” Id. at
228, 782 P.2d at 704.
Accordingly, we need to examine the statute under
which defendant was previously convicted. A.R.S. § 13–2508(A)(1), (2)
defines resisting arrest as: 1. Using or threatening to use physical
force against the peace officer or another; or 2. Using any other means
creating a substantial risk of causing physical injury to the peace
officer or another.
Defendant notes that although subsection (1) defines
resisting as involving the use or threat of physical force, subsection
(2) defines resisting as including “any other means” that would create a
substantial risk of physical injury to a person. The state argues that
because the “any other means” must involve “a substantial risk of
causing physical injury,” it necessarily involves the use or threat of
violence. However, under the state's reading of the statute, which is
tortuous at best, subsection (2) is a mere rescript of subsection (1).
We believe that subsection (2) was intended to and does apply to
situations where the person did not use or threaten to use violence upon
an officer or another, but still created a substantial risk that someone
would be physically injured. Because one can commit the crime of
resisting arrest under A.R.S. § 13–2508(A) without using or threatening
violence, a conviction under it does not qualify as a statutory
aggravating circumstance under A.R.S. § 13–703(F)(2). Accordingly, the
trial court's finding must be set aside.
7. Finding of Cruelty
A.R.S. § 13–703(F)(6) provides that an aggravating
circumstance exists if the crime is committed in “an especially heinous,
cruel or depraved manner.” The trial court found that each of the three
alternative factors was present. Although defendant does not challenge
the findings of heinousness or depravity, our independent review of the
record satisfies us that these elements were properly found. Defendant
does, however, challenge the finding of cruelty.
Defendant contends that absent proof of “extended
consciousness of the victim substantiating awareness of the pain of each
of the multiple wounds,” a finding of cruelty cannot be sustained.
“Cruelty” involves the victim's pain or suffering before death. State v.
Richmond, 136 Ariz. 312, 666 P.2d 57, cert. denied, 464 U.S. 986, 104
S.Ct. 435, 78 L.Ed.2d 367 (1983). Evidence must exist beyond a
reasonable doubt that the victim was conscious during the act of
violence or infliction of wounds preceding the victim's death. State v.
Poland, 144 Ariz. 388, 405, 698 P.2d 183, 200, aff'd, 476 U.S. 147, 106
S.Ct. 1749, 90 L.Ed.2d 123 (1985). Our case law does not support
defendant's assertion that a finding of cruelty requires that the victim
be conscious for each and every wound.
When the officers arrived at the victim's residence,
the apartment's condition evinced that a bloody battle had raged
throughout every room in the apartment. Blood was splattered throughout
the apartment and there were blood drops on the bathroom and kitchen
floors. A concentration of blood drops in the kitchen, as well as the
stream of dried blood down the victim's body and onto her bloodstained
feet, indicated the victim stood for some time while being stabbed. The
victim had three lacerations on her scalp and a stab wound to the left
cheek. These injuries, although not fatal, caused a considerable amount
of bleeding. The victim had lacerations on her right arm and bruises and
cuts on her left hand, all of which were characteristic of defensive
wounds. From the evidence of a vicious and prolonged beating, stabbing
and rape, the trial judge could and did conclude that the victim endured
great pain and suffering prior to death. We uphold the finding that the
murder was committed in an especially cruel manner under A.R.S. §
8. Mitigating Circumstances
Defendant contends the trial court erred by not
finding his alleged intoxication at the time of the murder a mitigating
circumstance under A.R.S. § 13–703(G)(1). Defendant offered no evidence
concerning intoxication at his sentencing hearing. He relied instead on
the state's opening statement and the testimony of two trial witnesses
as proof that his intoxication was a significant impairment.
Intoxication, by itself, does not constitute mitigation. State v.
Woratzeck, 134 Ariz. 452, 458, 657 P.2d 865, 871 (1982). Ample evidence
exists that defendant's intoxication was not pronounced enough to impair
significantly his capacity to appreciate his conduct or to conform to
the law. Based upon our review of the record, we agree with the trial
court's assessment of the evidence.
9. Initiative Measure on Jury Sentencing
Defendant contends that the Arizona legislature
lacked the authority in 1973 to alter, by statute, a 1918 initiative
providing for jury sentencing in first degree murder cases. The 1918
initiative provided: Every person guilty of murder in the first degree
shall suffer death or imprisonment in the state prison for life, at the
discretion of the jury trying the same, or, upon the plea of guilty the
Court shall determine the same. Thus, prior to 1973, the jury or judge
(in case of a guilty plea) was allowed full discretion in imposing the
death sentence. See State v. McGee, 91 Ariz. 101, 111–112, 370 P.2d 261,
267–68, cert. denied, 371 U.S. 844, 83 S.Ct. 75, 9 L.Ed.2d 79 (1962). In
response to the United States Supreme Court's decision in Furman v.
Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the Arizona
legislature enacted a new death penalty statute. It provided for the
death penalty only in limited circumstances and provided for
judge-sentencing. Laws 1973, ch. 138, § 5. See generally Note,
Resurrection of the Death Penalty, Validity of Arizona's Response to
Furman v. Georgia, 1974 Ariz.St.L.J. 257. Defendant contends that the
1973 statute violates article 4, part 1, § 1(6) of the Arizona
Constitution which provides, in pertinent part: The ... power of the
Legislature, to repeal or amend, shall not extend to initiative ...
measures approved by a majority vote of the qualified electors. Ariz.
Const. art. 4, pt. 1, § 1(6).
Defendant argues that the 1973 statute was an attempt
by the legislature to repeal jury sentencing in death penalty cases as
established by the 1918 initiative and is, therefore, void. Although we
are remanding this particular case for resentencing, we deal with
defendant's argument because we have not previously done so and its
resolution determines the availability of the death sentence in this
case as well as in other cases. Defendant's argument is controlled by
Adams v. Bolin, 74 Ariz. 269, 247 P.2d 617 (1952). In Adams, we noted
that there was a “marked distinction between a law approved by a
majority of the qualified electors and a law approved by a majority of
the electors voting thereon.” Id. at 279, 247 P.2d at 620. We held that
the anti-repeal provision of article 4 applied only to initiative
measures approved by a majority of qualified electors, not merely a
majority of those actually voting.
For the November 5, 1918 election, at which the death
penalty amendment was approved, the record shows there were 79,357
registered voters in Arizona. The election results show that 20,443
voted for the amendment, 10,602 voted against. Laws of Arizona, 1919 at
21. Thus, like the initiative in question in Adams, it passed by a
majority of the electors who actually voted, but not by a majority of
all qualified electors. As noted in Adams, if the framers intended
“qualified electors” under subsection 1(6) to be limited to those who
actually voted upon the measure, the words “voting thereon” could have
been added. Id. at 273, 247 P.2d at 619. Furthermore, as one commentator
noted: The original proposition provided that the governor could not
veto any “measures initiated by or referred to the people.” It is a fair
inference that the final language—with “qualified electors” substituted
for “people”—[is consistent with] the broad reading accorded it by the
Adams court. Bakken, The Arizona Constitutional Convention of 1910, 1978
Ariz.St.L.J. 1, 12. Adams has been on the books for nearly 40 years.
Defendant argues that it was wrongly decided and that we should overrule
it. We decline to do so.
With respect to the convictions, the issues raised on
appeal present no error, and our independent review reveals no
fundamental error. Therefore, the convictions are affirmed, as are all
the sentences except the death sentence on the murder count. Because one
of the two statutory aggravating circumstances found by the trial court
must be set aside, we remand for resentencing on the murder count
because we do not know and cannot ascertain what result would have
obtained but for that finding. In doing so, we are cognizant that
defendant has also made several other attacks on the Arizona death
penalty scheme. These attacks are not peculiar to this particular case
and we have recently dealt with most, if not all, of them in other
cases. In the event defendant again receives the death penalty, another
appeal is mandated. See Rules 31.2(b), Ariz.R.Crim.P., 17 A.R.S. In that
eventuality, we will consider any death penalty arguments defendant then
advances given the state of the record and the law at that time.
GORDON, C.J., FELDMAN, V.C.J., and CAMERON and
CORCORAN, JJ., concur.
State v. Lopez, 175 Ariz. 407, 857 P.2d
1261 (Ariz. 1993). (Direct Appeal After Remand)
After his conviction for murder was affirmed but
sentence of death was reversed, 163 Ariz. 108, 786 P.2d 959, defendant
was again sentenced to death by the Superior Court, Maricopa County,
Peter T. D'Angelo, J., and he appealed. The Supreme Court, Moeller, Vice
Chief Justice, held that: (1) evidence sustained finding that homicide
was cruel, heinous, and depraved; (2) evidence sustained rejection of
intoxication as mitigating factor; and (3) defendant's conduct during
incarceration was not a mitigating factor sufficient to relieve him from
the death penalty. Affirmed.
MOELLER, Vice Chief Justice.
PROCEDURAL HISTORY A jury convicted defendant of
first degree murder and other offenses. The trial court then sentenced
him to death. In an earlier appeal, all the convictions were affirmed,
but the death sentence was vacated and remanded for resentencing. State
v. Lopez, 163 Ariz. 108, 786 P.2d 959 (1990) ( Lopez I ). The trial
court then conducted a second sentencing hearing and again sentenced
defendant to death. The sentence has been automatically appealed to this
court, and we have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3)
and A.R.S. § 13-4031.
On October 29, 1986, Phoenix police responded to a
“check welfare” call at an apartment in Phoenix. There police found the
victim's body and evidence of a terrible and prolonged struggle. A
window had been broken from the inside out, scattering glass for seven
to eight feet. A screen door bore a concave impression matching the
shape of a body. A bookcase was knocked over, and broken pieces of
ceramic were found on the bed, the floor, and in the victim's hair.
Blood was splattered on the walls in the kitchen, bedroom, and bathroom.
Blood was smeared on the screen door, and, in the kitchen, police found
bloody footprints, blood on the refrigerator, blood on the stove, and
diluted blood around the kitchen sink.
The victim was a 59-year-old woman, 5' 2? tall, and
weighed 124 pounds. Her face was covered with a pillow, she was
blindfolded with her pajama bottoms, and her mouth was gagged with a
scarf. She had three stab wounds in the left scalp that extended to her
skull, a stab wound on her left cheek, approximately 23 stab wounds in
her left breast and upper chest, and her throat had been cut. Death was
caused by the slit throat and multiple stab wounds to the chest. All of
the wounds were inflicted pre-mortem or, at least, a very short time
after death. In addition to the stab wounds, the victim had bruises on
her left cheek and left hand, and defensive wounds on her right arm.
From the flow of blood, the medical examiner determined that she had
been standing at some point after having been stabbed. Semen was found
in her vagina and anus.
At the second sentencing hearing, additional evidence
was submitted in addition to that which was already before the court. On
the issue of whether the murder was especially cruel, heinous, or
depraved, the defense introduced the testimony of Dr. Phillip Keen, a
Yavapai County medical examiner. On the issue of intoxication, the
defense submitted the videotaped deposition of Dr. Otto Bendheim, a
psychiatrist, and the taped pretrial statements of two witnesses who had
seen the defendant on the night of the murder. Dr. Robert Dean, a
psychiatrist, testified for the state on the intoxication issue and some
arrest records were received in explanation of his opinion testimony. On
the issue of mitigation by reason of defendant's in-custody behavior,
the court received certain prison records and the testimony of Deputy
Sheriff Rick Bailey. The trial judge again sentenced defendant to death,
finding, as he had at the first sentencing, that the murder was
especially cruel, heinous, and depraved and that there were no
mitigating factors sufficiently substantial to call for leniency.
1. Was the murder especially cruel, heinous, or
depraved under A.R.S. § 13-703(F)(6)? 2. Did the defendant present
intoxication evidence sufficient to establish a statutory mitigating
factor under A.R.S. § 13-703(G)(1)? 3. Did defendant prove, as a
mitigating circumstance, that he was pathologically intoxicated? 4. Did
the trial court erroneously refuse to consider intoxication evidence as
a nonstatutory mitigating factor? 5. Did the defendant prove that his
conduct during incarceration was a nonstatutory mitigating factor
sufficiently substantial to call for leniency? 6. Is death by infliction
of lethal gas cruel and unusual punishment? 7. Was the defendant
constitutionally entitled to a jury determination of aggravating and
mitigating factors? 8. Is the Arizona capital sentencing scheme
unconstitutional because it does not sufficiently channel the
sentencer's discretion? 9. Is this court required by the United States
Constitution to conduct a proportionality review in capital cases?
I. Was the murder Especially Cruel, Heinous, or
Depraved Under A.R.S. § 13-703(F)(6)? Defendant argues that the finding
that the murder was committed in an especially cruel, heinous, and
depraved manner is not supported by the evidence. The state contends
that, because this court already determined, in the first appeal, that
the murder was especially cruel, heinous, and depraved, see Lopez I, 163
Ariz. at 114-15, 786 P.2d at 965-66, we should not reexamine the issue.
However, some of the new evidence offered at the second sentencing bears
on this issue; therefore, we will reexamine it.
Dr. Phillip Keen testified for defendant that, in his
opinion, the wounds defendant inflicted on the victim over a
three-to-fifteen minute period were all directed at killing her. From
this testimony, defendant argues that none of the wounds was inflicted
solely to cause pain. He claims there is no evidence of torture; he
simply continued to stab the victim until she died. Defendant argues
that the especially cruel aggravating factor is intended to ferret out
those murderers who inflict gratuitous physical abuse on their victim.
Because he did not do that, he argues, the murder was not especially
cruel. We disagree.
A victim need not be physically tortured for a murder
to be especially cruel. State v. Lavers, 168 Ariz. 376, 392, 814 P.2d
333, 349, cert. denied, 502 U.S. 926, 112 S.Ct. 343, 116 L.Ed.2d 282
(1991). A murder is especially cruel if the victim consciously
experiences physical abuse or mental anguish before death. State v.
Amaya-Ruiz, 166 Ariz. 152, 177, 800 P.2d 1260, 1285 (1990), cert.
denied, 500 U.S. 929, 111 S.Ct. 2044, 114 L.Ed.2d 129 (1991); State v.
Fulminante, 161 Ariz. 237, 255, 778 P.2d 602, 620 (1988), aff'd, 499
U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Mental suffering
includes uncertainty over one's ultimate fate. State v. Gillies, 135
Ariz. 500, 513, 662 P.2d 1007, 1020 (1983), cert. denied, 470 U.S. 1059,
105 S.Ct. 1775, 84 L.Ed.2d 834 (1985). The victim's suffering, however,
must have been foreseeable to the defendant. State v. Hinchey, 165 Ariz.
432, 438, 799 P.2d 352, 358, cert. denied, 499 U.S. 963, 111 S.Ct. 1589,
113 L.Ed.2d 653 (1991).
The victim in this case was stabbed 23 times in the
upper chest and three times in the abdomen. Her throat was cut. She was
sexually assaulted and had semen in both her vagina and anus. She had
defensive wounds on her forearms. There were bruises on her body. The
apartment was knocked asunder, evidencing a terrific struggle for life
during which time the victim was obviously conscious. The top of the
victim's shoes were bloodied, indicating that she had been standing up
at some point after being stabbed. This grisly and ultimately fatal
nightmare lasted from three minutes to as long as 15 minutes. Obviously,
the victim endured great physical and mental suffering over a relatively
protracted period of time while she struggled for her life. Her
suffering was not only foreseeable, it was unavoidably obvious to the
defendant. This murder was undoubtedly especially cruel. See Lavers, 168
Ariz. at 393, 814 P.2d at 350 (in determining whether a murder is
especially cruel, this court looks at the entire murder transaction).
B. Heinousness and Depravity
Defendant also argues that the trial court's
especially heinous and depraved finding should be set aside. Even if we
agreed, the A.R.S. § 13-703(F)(6) aggravating factor would still be
satisfied because the elements of cruelty, heinousness, or depravity are
stated in the disjunctive, and the presence of any of the three is
sufficient. See Fulminante, 161 Ariz. at 254, 778 P.2d at 619.
Nonetheless, we have reexamined the record in light of defendant's
argument. In the first appeal, defendant did not challenge the findings
of heinousness and depravity. Our independent review of the record,
however, led us to agree with the trial court's findings. Lopez I, 163
Ariz. at 114-15, 786 P.2d at 965-66. At the second sentencing, the trial
court made the following finding: 7. The Defendant did commit the
offense in an especially heinous and depraved manner. The Defendant's
sexual assault of the victim, whether it occurred before or after death,
the securing of the pajama bottoms about her eyes, the cramming of a
scarf in the victim's mouth, all constitute evidence of the Defendant's
heinous and depraved mind.
Defendant argues that the trial court's findings do
not comply with the standards set forth in State v. Gretzler, 135 Ariz.
42, 51-52, 659 P.2d 1, 10-11, cert. denied, 461 U.S. 971, 103 S.Ct.
2444, 77 L.Ed.2d 1327 (1983). His argument suggests that because the
judge did not specifically mention the Gretzler factors in the special
verdict, it is deficient. There is no such requirement.
Heinousness and depravity focus on the defendant's
state of mind at the time of the offense. State v. Amaya-Ruiz, 166 Ariz.
at 178, 800 P.2d at 1286. In Gretzler, the court set forth several
specific factors, which earlier cases suggested could appropriately be
considered in determining whether a murder was especially heinous or
depraved. They were: (1) whether defendant relished the murder; (2)
whether defendant inflicted gratuitous violence beyond that necessary to
kill; (3) whether the defendant mutilated the victim's body; (4) whether
the crime was senseless; and (5) whether the victim was helpless.
Gretzler, 135 Ariz. at 51-52, 659 P.2d at 10-11.
Several of these items are satisfied here. The
defendant inflicted gratuitous violence on the victim. Notwithstanding
Dr. Keen's testimony that the wounds were all consistent with an attempt
to inflict death, and the defendant's interpretation of that testimony
as meaning that he repeatedly stabbed the victim out of surprise that
she did not immediately die, the clear fact is that the multiple stab
wounds in the chest and the abdomen, along with the throat cutting,
certainly qualify as gratuitous violence. We reject defendant's argument
that he should be credited with a wholesome mind because he chose a
murder weapon that did not cause death instantaneously. Moreover, the
knife wounds to the face, the sexual assault, the binding of the
victim's eyes, and the gagging of her mouth were not directed toward
killing the victim and clearly bespeak gratuitous violence.
The murder also was senseless. Although the defendant
clearly intended to kill the victim, there was no reason to do so. The
sexual assault could have been committed without the murder, and no
other reason for the killing is apparent from the record. Nothing in the
record suggests that the defendant and the victim knew each other or had
any prior contact. This case also meets the “helplessness” test of
Gretzler. The victim was a 59-year-old, 124-pound woman. The defendant
is a young man, then aged 24, and in apparent good health. The victim
was gagged so she could not call for help. At some point, she was
blindfolded so she could not see. Although there was evidence of a
prolonged struggle, for all practical purposes this uneven match was
over after the first serious wounds were inflicted on the victim. In
prior cases, we have held that a victim is helpless when disabled and
unable to resist the murder. See State v. Chaney, 141 Ariz. 295, 312-13,
686 P.2d 1265, 1282-83 (1984) (victim had already been shot, and
defendant knew that the victim could not resist when he shot him again);
State v. Harding, 137 Ariz. 278, 670 P.2d 383 (1983) (although
originally resisting, the victims were tied up and unable effectively to
resist prior to being killed), cert. denied, 465 U.S. 1013, 104 S.Ct.
1017, 79 L.Ed.2d 246 (1984). In short, on this second appeal we again
agree with the trial court's finding that this killing was especially
heinous and depraved within the meaning of A.R.S. § 13-703(F)(6).
II. Intoxication as a Mitigating Factor
Defendant contends that the trial court should have
mitigated his death penalty to life imprisonment because of his alleged
intoxication at the time of the crimes. He advances three separate, but
related, arguments concerning intoxication. We address them separately.
A. Statutory Mitigation for Intoxication Under
A.R.S. § 13-703(G)(1)
Any mental or physical condition, including
intoxication, is considered mitigation if “the defendant's capacity to
appreciate the wrongfulness of his conduct or to conform his conduct to
the requirements of law was significantly impaired, but not so impaired
as to constitute a defense to prosecution.” A.R.S. § 703(G)(1). Although
defendant had always denied he was intoxicated at the time of the
offense, he urged intoxication as a statutory mitigating circumstance at
both of his sentencings. At the first sentencing, the trial court
weighed and rejected intoxication as a statutory mitigating factor by
the trial court. We agreed with that finding in Lopez I, 163 Ariz. at
115, 786 P.2d at 966.
At the second sentencing, defendant used the taped
pretrial statements of two women to supplement their trial testimony.
These two witnesses lived together in an apartment. One of them talked
to defendant at a park near her apartment early in the evening of the
murder and described him as then being “calm.” Later, when defendant
appeared at the witnesses' apartment to “talk,” one of them described
him as drunk. In a seeming invitation, defendant asked one of the
witnesses if she “got high”; she said no, and defendant then went behind
her apartment. According to one of the witnesses, when he returned
approximately five minutes later, defendant was shaking and unable to
stand up without leaning on a pole. He then tried to prevent the witness
from going inside, and the other witness came to help her. This other
witness stated that defendant was “on something.” The events at the
apartment occurred between 11:30 p.m. and midnight. The murder occurred
at approximately 1:30 a.m.
The trial court weighed this new evidence along with
all of the other evidence in the record. The judge again found it
wanting. Given the totality of the evidence, the time lapse involved
after the witnesses' observations, the defendant's own denial of
intoxication, and the defendant's obvious recollection of details of the
crime, see Lopez I, 163 Ariz. at 111, 786 P.2d at 962, we are also
satisfied that defendant has failed to carry his burden under A.R.S. §
B. Idiosyncratic or Pathological Intoxication
At his second sentencing, defendant advanced a new
theory that he might have been suffering from idiosyncratic or
pathological intoxication, as distinguished from normal intoxication.
Idiosyncratic or pathological intoxication is a condition, quite rare,
in which an individual exhibits sudden and unpredictable behavior very
shortly after ingesting a very small amount of alcohol. Defendant argues
that he proved by a preponderance of the evidence that he suffers from
this condition and that the trial court erred when it failed to find
this a mitigating circumstance.
Defendant presented the testimony of Dr. Otto
Bendheim, who noted that defendant has displayed antisocial behavior at
other times while intoxicated. Dr. Bendheim said that persons who suffer
from pathological intoxication often deny their intoxication, as did
this defendant. Because he lacked adequate confirmatory evidence, such
as that the defendant would go “really wild” after only a beer or two,
Dr. Bendheim could not make a diagnosis of pathological intoxication
with any degree of medical certainty. He did, however, tender a
tentative diagnosis of pathological intoxication stating, “I will
emphasize that I will speculate, but on fairly good grounds, that this
murder would not have occurred,” but for the defendant's intoxication.
Dr. Dean, a psychiatrist, testified that defendant
did not suffer from idiosyncratic intoxication disorder, although he did
become sexually aggressive when drinking. He testified that those few
persons suffering from this disorder usually have a predisposing
physical condition, such as brain damage. Both doctors agreed there was
no evidence of any such predisposing condition. Furthermore, four days
after the murder in this case, and before he was apprehended, defendant,
while admittedly intoxicated, planned and methodically carried out a
sexual assault. Dr. Dean concluded that these actions were inconsistent
with pathological intoxication. After considering all of the factual
evidence in the case and the expert testimony on the issue of
pathological intoxication, the trial court made the following finding:
Testimony was presented on behalf of the Defendant
that he possibly suffered from a condition known as “pathological
intoxication.” Said testimony did not rise to any level of medical
certainty, but rather was based upon a “hypothesis” or “speculation.”
The State presented evidence to rebut the “hypothesis” and
“speculation,” and the Court specifically finds that the Defendant
failed to meet his burden of proof of establishing this mitigating
factor by a preponderance of the evidence.
Even though this court reviews the evidence on
sentencing issues in capital cases independently, the fact that the
trial court found that the evidence did not establish a mitigating
factor is an important factor in our analysis. State v. Fierro, 166
Ariz. 539, 553, 804 P.2d 72, 86 (1990) (court deferred to trial judge's
determination that the evidence was insufficient to establish that the
defendant's intoxication impaired his ability to appreciate the
wrongfulness of his conduct or to conform his conduct to the
requirements of law, because the determination was based on credibility
and weight). See State v. Wallace, 160 Ariz. 424, 426, 773 P.2d 983, 985
(1989) (court not compelled to accept the opinion of a defense expert
where other psychiatric testimony contradicted that opinion and the
defendant himself contradicted the expert's factual testimony), cert.
denied, 494 U.S. 1047, 110 S.Ct. 1513, 108 L.Ed.2d 649 (1990); State v.
McMurtrey, 151 Ariz. 105, 109, 726 P.2d 202, 206 (1986) (no finding of
significant impairment when the state experts are unequivocal in their
findings while defense experts are less exact in their findings), cert.
denied, 480 U.S. 911, 107 S.Ct. 1359, 94 L.Ed.2d 530 (1987). Based on
our independent review, we agree with the trial court's determination
that defendant failed to prove that he suffered from idiosyncratic or
pathological intoxication. Therefore, it is not a mitigating
circumstance, statutory or otherwise.
C. Did the Trial Court Refuse to Consider
Intoxication As a Non-Statutory Mitigating Factor?
Defendant contends that our ruling in Lopez I, as
well as other Arizona case law, led the trial court to the erroneous
conclusion that it must disregard evidence of intoxication unless such
evidence rose to the statutory standard specified in A.R.S. §
13-703(G)(1). Under Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57
L.Ed.2d 973 (1978), defendant contends that his death sentence is
unconstitutional and must be vacated. We disagree. In making this
argument, defendant overlooks or ignores established Arizona statutory
provisions and case law dealing with the precise issue and, instead,
seeks to contort a selected passage from Lopez I dealing with an
entirely different issue.
Before Lockett, Arizona's death penalty statute, then
A.R.S. § 13-454, listed certain mitigating circumstances without any
“catchall” provision. At that time, this court believed that it could
only consider mitigating factors that had been specified by the
legislature. See State v. Bishop, 118 Ariz. 263, 269, 576 P.2d 122, 128,
vacated, 439 U.S. 810, 99 S.Ct. 69, 58 L.Ed.2d 103 (1978). Indeed, the
statute itself confined the court's consideration of both aggravating
and mitigating circumstances to those listed in the statute. See Laws
1973, ch. 138, § 5. Lockett changed all that. In Lockett, the Court, in
a landmark death penalty case, held “in all but the rarest kind of
capital case [the sentencer must] not be precluded from considering as a
mitigating factor, any aspect of a defendant's character or record and
any of the circumstances of the offense that the defendant proffers as a
basis for a sentence less than death.” Lockett, 438 U.S. at 604, 98
S.Ct. at 2964-65 (footnotes omitted). In State v. Watson, 120 Ariz. 441,
586 P.2d 1253 (1978), cert. denied, 440 U.S. 924, 99 S.Ct. 1254, 59
L.Ed.2d 478 (1979), the defendant had been sentenced under the old
statute and the trial court had refused to consider any evidence of
mitigation of a type not enumerated in that statute. Lockett was decided
while Watson's appeal was pending in this court. This court, recognizing
the constitutional infirmity of the Arizona statute barring evidence of
mitigating factors not expressly enumerated, declared that portion of
the statute unconstitutional, stating:
It is apparent that this restriction on the use of
mitigating circumstances does not now pass constitutional muster. We
hold that A.R.S. § 13-454(F), insofar as it limits the right of the
defendant to show additional mitigating circumstances, is
unconstitutional. Watson, 120 Ariz. at 444-45, 586 P.2d at 1256-57.
Shortly after Watson, the Arizona legislature amended the mitigation
portions of the death penalty statute to conform to the constitutional
requirements of Lockett and Watson. See A.R.S. § 13-703(G)(1). This
amended statute, under which this defendant was sentenced, provides:
Mitigating circumstances shall be any factors proffered by the defendant
or the state which are relevant in determining whether to impose a
sentence less than death, including any aspect of the defendant's
character, propensities or record and any of the circumstances of the
offense, including but not limited to the following: [then follows a
list of statutorily recognized mitigating circumstances, including
subsection (1) on capacity]. (emphasis added.)
Thus, Arizona case law and statutory law both comply
with the constitutional command of Lockett that the only limitation on
mitigating evidence is that it be relevant. In 1983, this court had
before it subsection (1) of the mitigation statute, the same subsection
implicated in this case. We clearly prescribed what a trial court must
do with evidence of lack of capacity that falls short of statutorily
prescribed mitigation: In order to remain faithful to Lockett and
Watson, ... [t]he court must consider the offered evidence further to
determine whether it in some other way suggests that the defendant
should be treated with leniency.... The trial court is not required to
find a mitigating circumstance; nor is it required to make a statement
that none has been found. The trial court must, however, consider the
evidence. State v. McMurtrey, 136 Ariz. 93, 102, 664 P.2d 637, 646,
cert. denied, 464 U.S. 858, 104 S.Ct. 180, 78 L.Ed.2d 161 (1983).
In Fierro, 166 Ariz. at 553-54, 804 P.2d at 86-87,
this court applied the Lockett principles in an intoxication case. In
Fierro, although the defendant did not raise mental impairment as a
defense to the crime itself, at sentencing he offered evidence of mental
impairment through intoxication. The trial court concluded that the
evidence fell short of showing the subsection (1) statutory mitigating
circumstance. Although deferring to the trial court's finding, pursuant
to its obligation to independently review all mitigating evidence, this
court concluded that the evidence of intoxication, while not rising to
the level of establishing that the defendant was “significantly
impaired” as used in section 13-703(G)(1), nevertheless constituted
appropriate evidence of mitigation. When combined with other factors,
this finding warranted relief from the death penalty. Id. Although it is
true that Fierro was not issued until some months after the second
sentencing in this case, it is equally clear that Fierro announced no
new point of law in Arizona, but merely applied the case law and the
statute that have existed since the Lockett case.
Notwithstanding this extensive Arizona statutory and
case law background, the defendant takes our 1990 language in Lopez I
out of context to argue that the trial court must somehow have felt
precluded from considering the evidence of intoxication. In Lopez I,
defendant argued that the trial court erroneously concluded that the
evidence of intoxication did not satisfy A.R.S. § 13-703(G)(1). No other
argument concerning intoxication evidence was presented. In reviewing
the issue that was presented and decided, we stated: Intoxication, by
itself, does not constitute mitigation. State v. Woratzeck, 134 Ariz.
452, 458, 657 P.2d 865, 871 (1982). Ample evidence exists that
defendant's intoxication was not pronounced enough to impair
significantly his capacity to appreciate his conduct or to conform to
the law. Based upon our review of the record, we agree with the trial
court's assessment of the evidence. Lopez I, 163 Ariz. at 115, 786 P.2d
In Woratzeck, there is also no indication that the
defendant made other than a statutory argument. The burden of proving
mitigation is on the defendant, A.R.S. § 13-703(C), and the duty to call
such evidence to the court's attention also is on the defendant. It is
inconceivable that the trial judge in this case read the isolated
language in Lopez I dealing with one issue as overruling other cases,
including those of the United States Supreme Court. Defendant does not
even attempt to explain how anyone would also read the Lopez I language
as overruling the post- Lockett mitigation statute.
The trial judge in this case was not misled. In his
special verdict, he expressly stated that “the prosecution and defendant
were given the opportunity to present evidence and argument as to the
adequacy or inadequacy of the evidence to establish the existence of ...
any of the mitigating circumstances set forth in A.R.S. § 13-703(G) and
any of the mitigating circumstances of any nature whatsoever whether
specified in the statute or not.” (emphasis added.) In his concluding
portion of the special verdict he reiterated that “the prosecution and
the defendant have been permitted to rebut any information received at
the hearing, including information presented at the trial, and were
given fair opportunity to present argument as to the adequacy of the
information to establish the existence ... of any mitigating
circumstances whether listed in A.R.S. § 13-703(G) or not.” (emphasis
added.) We note parenthetically that the defendant did not argue in the
trial court what he argues here, i.e., that the trial court should
expressly consider the intoxication evidence as mitigation even if it
fell short of statutory mitigation, nor did the state ever argue to the
contrary. When the statute and case law so clearly show that the
defendant may offer anything in mitigation, unlimited by statutory
constraints, we will not presume that the trial judge made up a contrary
rule of law and silently applied it, all the while denying it.
The defendant points out, however, that while this
case was pending in this court, a divided panel of the United States
Court of Appeals for the Ninth Circuit issued its opinion in Jeffers v.
Lewis, 974 F.2d 1075 (9th Cir.1992) (2-1 decision). In that case, two
members of the Ninth Circuit construed Arizona law much as the defendant
in this case would have us construe it. Id. at 1079. Because we disagree
with the defendant's arguments, we also necessarily respectfully
disagree with the conclusions of our two Ninth Circuit colleagues.
III. Defendant's Conduct During Incarceration
Defendant argues that the trial court should have
found that his adjustment to incarceration was a mitigating factor
sufficient to relieve him from the death penalty. He contends that he
has evolved into a model prisoner and, under State v. Watson, 129 Ariz.
60, 628 P.2d 943 (1981), this fact should be considered as mitigation.
In Watson, we held that behavior in custody after a death penalty has
been imposed may be considered in mitigation. Id. at 63-64, 628 P.2d at
946-47. The court there found the defendant's adjustment to
incarceration to be mitigating where the defendant had not only been a
model prisoner but had also furthered his education while in prison.
Even in Watson, the in-custody behavior was only one of several
mitigating circumstances that led this court to reduce a death penalty
to life. Id. at 64, 628 P.2d at 947. The court also relied on several
other substantial mitigating factors: defendant was only 21 at the time
of the crime, the victim had shot twice at the defendant before the
defendant shot at him, and the co-defendants had received only a life
sentence. Id. In Watson, these factors, in combination with the factor
of defendant's in-custody behavior, led the court to reduce Watson's
We believe, however, that we should subject claims of
in-custody good behavior to close scrutiny. On this point, the facts
offered in mitigation are not persuasive. Defendant was, at best, a
model prisoner only while at the county jail awaiting resentencing.
Before that, he had a long history of disciplinary problems while in
prison, including several incidents while originally on death row. The
trial court correctly observed that defendant would be expected to
behave himself in county jail while awaiting resentencing. Given his
overall prison record, the trial court found defendant's behavior in
prison was not mitigating. We agree with the trial court. See State v.
Atwood, 171 Ariz. 576, 655, 832 P.2d 593, 672 (1992) (finding that even
where the defendant had changed his goals and behavior in prison, that
was not enough to find that the defendant was a model prisoner and was
therefore not a mitigating circumstance), cert. denied, 506 U.S. 1084,
113 S.Ct. 1058, 122 L.Ed.2d 364 (1993).
IV. Other Issues
The defendant advances, no doubt in order to preserve
them for federal review, several additional contentions that have been
decided adversely to him by this court. He contends that death by
infliction of lethal gas is cruel and unusual punishment. This court has
rejected that argument. State v. Greenway, 170 Ariz. 155, 160, 823 P.2d
22, 27 (1992); State v. Stanley, 167 Ariz. 519, 532, 809 P.2d 944, 957,
cert. denied, 502 U.S. 1014, 112 S.Ct. 660, 116 L.Ed.2d 751 (1991);
State v. Williams, 166 Ariz. 132, 142, 800 P.2d 1240, 1250 (1987), cert.
denied, 500 U.S. 929, 111 S.Ct. 2043, 114 L.Ed.2d 128 (1991). At least
one federal court has rejected this argument as well. Gray v. Lucas, 710
F.2d 1048, 1061 (5th Cir.), cert. denied, 463 U.S. 1237, 104 S.Ct. 211,
77 L.Ed.2d 1453 (1983).
Defendant argues that he was entitled to a jury trial
on aggravating and mitigating factors. The Ninth Circuit has rejected
this argument. See Clark v. Ricketts, 958 F.2d 851, 859 (9th Cir.1991)
(relying on Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d
511 (1990)), cert. denied, --- U.S. ----, 113 S.Ct. 117, 121 L.Ed.2d 73
(1992). We have agreed with the Ninth Circuit in State v. Landrigan, 176
Ariz. 1, 6, 859 P.2d 111, 116 (1993); see also State v. Spencer, 176
Ariz. 36, 859 P.2d 146 (1993).
Defendant contends that the Arizona death penalty
statutes violate the Eighth Amendment because they do not sufficiently
channel the sentencer's discretion. We rejected this argument in
Greenway, 170 Ariz. at 164, 823 P.2d at 31. Finally, defendant contends
that we should conduct a proportionality review, but we rejected
proportionality reviews in State v. Salazar, 173 Ariz. 399, 844 P.2d 566
(1992), cert. denied, 509 U.S. 912, 113 S.Ct. 3017, 125 L.Ed.2d 707
Having conducted an independent review of the record,
we agree with the trial judge that the defendant murdered the victim in
an especially cruel, heinous, and depraved manner and that there are no
mitigating circumstances, statutory or otherwise, sufficiently
substantial to call for leniency. The sentence of death is affirmed.
FELDMAN, C.J., and CORCORAN, ZLAKET and MARTONE, JJ.,
Lopez v. Ryan, 630 F.3d 1198 (9th Cir.
Background: State prisoner petitioned for writ of
habeas corpus after he was convicted of first-degree murder and
sentenced to death and he was denied relief on his direct appeal and
petitions for post-conviction relief, 163 Ariz. 108, 786 P.2d 959 and
175 Ariz. 407, 857 P.2d 1261. The United States District Court for the
District of Arizona, Stephen M. McNamee, J., 2008 WL 2783282 and 2008 WL
4219079, denied petition. Prisoner appealed.
Holdings: The Court of Appeals, McKeown, Circuit
Judge, held that: (1) prisoner had not been denied individualized
sentencing determination; (2) prisoner had not been diligent in his
state post-conviction proceedings in developing claim that his attorney
at sentencing had provided ineffective assistance by not furnishing
psychiatric expert with broad range of biographical data and family and
social history that were necessary for proper diagnosis of pathological
intoxication; (3) prisoner had not been prejudiced by counsel's alleged
ineffective assistance by not providing expert with eyewitness
testimony; (4) handwritten note that outlined evidence which resulted in
conclusion that prisoner should not be prosecuted for subsequent sexual
assault was not material under Brady; and (5) legal opinions contained
in note, concluding that evidence was not sufficient to prosecute
prisoner for subsequent sexual assault, did not constitute Brady
McKEOWN, Circuit Judge:
We consider here a challenge to the denial of habeas
relief from a death sentence. Samuel Villegas Lopez, an Arizona state
prisoner, appeals the district court's denial of his petition for a writ
of habeas corpus challenging his capital sentence for first-degree
murder. Lopez argues that, in violation of his Eighth and Fourteenth
Amendment rights, he was denied an individualized sentencing
determination because of then-binding Arizona law requiring that
mitigating evidence be causally related to the crime; Lopez also argues
that his attorney at his resentencing rendered ineffective assistance of
counsel by failing to furnish his psychiatric expert with eyewitness
testimony and background information necessary to an assessment of
pathological intoxication, “a condition, quite rare, in which an
individual exhibits sudden and unpredictable behavior very shortly after
ingesting a very small amount of alcohol.” State v. Lopez (“ Lopez II
”), 175 Ariz. 407, 857 P.2d 1261, 1267 (1993). Finally, Lopez argues
that, in violation of the Fourteenth Amendment's Due Process Clause, the
government suppressed exculpatory evidence regarding an unrelated sexual
assault arrest. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194,
10 L.Ed.2d 215 (1963).
The record belies Lopez's arguments. The sentencing
court expressly indicated that it considered all the mitigating evidence
at Lopez's sentencing proceedings, and the Arizona Supreme Court
independently reviewed the record on appeal. Id. at 1264–71. There is no
basis to presume that the state court imposed a causal nexus requirement
sub silentio. Although Arizona has a checkered past on this issue, the
Arizona courts did not uniformly impose a causation requirement in
capital sentencing cases during the time period in question. The state
court examined all the mitigating evidence and found that it did not
Lopez's ineffective assistance of counsel claim fails
as well. Even assuming the district court erred in addressing procedural
default sua sponte, Lopez is independently barred from seeking relief
through his expanded allegations of ineffective assistance of counsel
because he did not develop the factual basis for this claim in state
court. See 28 U.S.C. § 2254(e)(2). Although Lopez raised in state court
his narrower claim that counsel failed to provide his expert with
eyewitness testimony, he cannot show that counsel's failure caused him
prejudice. The trial court found the murder especially heinous, cruel,
or depraved, and underscored that he had never seen a case “as bad as
this one.” There is no “reasonable probability” that the duplicative
testimony cited by Lopez would have changed the sentence.
Lopez's Brady claim is also without merit. The
information in the undisclosed note was not “material” for Brady
purposes. The note included legal opinions, which are not covered by
Brady in the first instance, and facts cumulative of information
available in previously released police reports. Lopez also cannot
demonstrate that had the note been properly disclosed, the result of the
sentencing proceeding would have been different. Consequently, under the
deference owed to the state court under the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104–132, 110 Stat. 1214,
we affirm the decision of the district court.
In 1987, Lopez was convicted of first-degree murder,
two counts of sexual assault, kidnapping, and burglary for the rape and
murder of a fifty-nine-year-old woman, Estefana Holmes.FN1 The trial
court sentenced him to death on the basis of two aggravating
circumstances: a prior felony conviction “involving the use or threat of
violence on another person,” Ariz.Rev.Stat. § 13–703(F)(2) (1992), and
the commission of an especially heinous, cruel, or depraved manner, id.
§ 13–703(F)(6) (1992); see also State v. Lopez (“ Lopez I ”), 163 Ariz.
108, 786 P.2d 959, 962 (1990). The Arizona Supreme Court affirmed the
convictions, but held that Lopez's prior conviction for resisting arrest
did not qualify as a felony offense under Arizona Revised Statutes §
13–703(F)(2) (1992). The court accordingly remanded for resentencing on
the murder count. Lopez I, 786 P.2d at 965, 967. FN1. The facts of the
crime, which are brutal, are summarized by the Arizona Supreme Court at
State v. Lopez, 163 Ariz. 108, 786 P.2d 959, 961–62 (1990), and Lopez
II, 857 P.2d at 1263–64. Because this appeal does not turn on these
facts, we do not restate them here.
Lopez's resentencing was held in 1990. The trial
court again sentenced Lopez to death, finding that the murder was
committed in an especially cruel, heinous, or depraved manner and that
no mitigating circumstances were sufficient to warrant leniency. Lopez
II, 857 P.2d at 1264. After an independent review of the record, the
Arizona Supreme Court affirmed. Id. at 1271.
Lopez petitioned for post-conviction relief. The
trial court held that “no material issue of fact or law exist[ed] which
would be served by any further proceedings” and dismissed the petition.
With respect to Lopez's claims of ineffective assistance of counsel, the
court found that Lopez failed to show that his counsel's “performance
fell below prevailing professional norms” and that there was no
“reasonable probability that the result of the trial or sentencing
procedures would have been different [but for] counsel's alleged
ineffective assistance.” The Arizona Supreme Court summarily denied
Lopez's petition for review.
Lopez then filed a petition for a writ of habeas
corpus in federal district court. The district court denied Lopez's
petition. In particular, the district court rejected claim 7 of Lopez's
petition, which alleged that the trial judge failed to consider
mitigating evidence at sentencing due to Arizona law impermissibly
precluding consideration of such evidence absent a causal nexus to the
crime. The district court also found that portions of claim 1(C)—Lopez's
ineffective assistance claim challenging counsel's failure to prepare
his psychiatric expert at sentencing—substantially altered the claim he
had presented in his state post-conviction proceeding and were therefore
procedurally barred. The district court denied the exhausted portion of
claim 1(C) on the merits. The district court also denied Lopez's Brady
claim as procedurally defaulted because Lopez failed to present the
issue in state court. The district court held that even if the
government's failure to disclose the information constituted cause to
excuse the procedural default, Lopez failed to establish that the note
Because Lopez filed his habeas petition in 1998,
AEDPA applies. We review de novo a district court's denial of a § 2254
habeas corpus petition. Luna v. Cambra, 306 F.3d 954, 959, as amended,
311 F.3d 928 (9th Cir.2002). In conducting review of a state court
decision, we “look to the last reasoned state-court decision.” Van Lynn
v. Farmon, 347 F.3d 735, 738 (9th Cir.2003). Under AEDPA, courts may
grant habeas relief only if the state court's decision was “contrary to,
or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1);
Williams v. Taylor, 529 U.S. 362, 407–09, 120 S.Ct. 1495, 146 L.Ed.2d
389 (2000). This is a “highly deferential standard for evaluating
state-court rulings,” Lindh v. Murphy, 521 U.S. 320, 333 n. 7, 117 S.Ct.
2059, 138 L.Ed.2d 481 (1997), which “demands that state-court decisions
be given the benefit of the doubt,” Woodford v. Visciotti, 537 U.S. 19,
24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam). In addition, a
petitioner may be entitled to relief if the state court's factual
determination rested on an unreasonable evidentiary foundation. 28
U.S.C. § 2254(d)(2). However, state court findings of fact are presumed
correct unless rebutted by clear and convincing evidence. Id. §
I. Whether Lopez was denied an individualized
sentencing determination (claim 7)
We begin with Lopez's claim that he was denied an
individualized sentencing determination because the state court ignored
relevant mitigating evidence. As a preliminary matter, we note that the
trial judge—at both Lopez's original sentencing in 1987 and resentencing
in 1990—expressly stated that he considered all the mitigating evidence
and found that it did not warrant leniency. The Arizona Supreme Court
also affirmed the sentencing court's analysis after an independent
review of the record. Lopez I, 786 P.2d at 966; Lopez II, 857 P.2d at
1264–68, 1270–71. Nonetheless, Lopez argues that, at the time of his
sentencing, Arizona law unconstitutionally barred consideration of
mitigating evidence that was not causally related to the crime. Because
the state court presumably adhered to this rule, Lopez argues, we should
infer that it did not consider all the mitigating evidence and thus
denied him an individualized sentencing in violation of his Eighth and
Fourteenth Amendment rights. See Lockett v. Ohio, 438 U.S. 586, 608, 98
S.Ct. 2954, 57 L.Ed.2d 973 (1978) (holding that Eighth and Fourteenth
Amendments require the individualized consideration of all mitigating
factors in capital cases); Tennard v. Dretke, 542 U.S. 274, 287, 124
S.Ct. 2562, 159 L.Ed.2d 384 (2004) (same).
Lopez's claim is at odds with the law and the
evidence. As we explained in Schad v. Ryan, “[a]bsent a clear indication
in the record that the state court applied the wrong standard, we cannot
assume the courts violated ... constitutional mandates.” 606 F.3d 1022,
1047 (9th Cir.2010) (per curiam), petition for cert. filed, 79 U.S.L.W.
3129 (U.S. Aug. 27, 2010) (No. 10–305). See also Bell v. Cone, 543 U.S.
447, 455, 125 S.Ct. 847, 160 L.Ed.2d 881 (2005) (per curiam) (explaining
that “[f]ederal courts are not free to presume that a state court did
not comply with constitutional dictates on the basis of nothing more
than a lack of citation”). Here, there is no indication that the state
court applied an impermissible requirement of a causal nexus between
mitigating evidence and the crime. Indeed, the state court said the
opposite—i.e., that it considered all the mitigating evidence on an
independent review of the record and found that it did not warrant the
exercise of leniency. As the Arizona Supreme Court forcefully stated:
The trial judge in this case was not misled.... In
his concluding portion of the special verdict he reiterated that “the
prosecution and the defendant have been permitted to rebut any
information received at the hearing, including information presented at
the trial, and were given fair opportunity to present argument as to the
adequacy of the information to establish the existence ... of any
mitigating circumstances whether listed in A.R.S. § 13–703(G) or not.”
(emphasis added.) Lopez II, 857 P.2d at 1270.
Contrary to Lopez's argument, we have no reason to
presume that a tacit causation rule underpinned the state court's
decision. Our recent decision in Schad makes this clear. In Schad, the
petitioner similarly argued that, contrary to the Supreme Court's
dictates in Lockett and Tennard, “the [Arizona] state courts did not
consider the evidence of his troubled childhood because they
unconstitutionally required a ‘nexus' between his childhood abuse and
his commission of [the] murder.” 606 F.3d at 1045. Reviewing Arizona
case law, we explained that, “[b]efore Tennard was decided, Arizona
courts recognized a nexus test, similar to that rejected in Tennard, to
preclude consideration of evidence of childhood abuse unless the abuse
bore a causal connection to the crime of conviction.” Id. at 1045–46.
After Tennard, the Arizona Supreme Court “clarified that the nexus test
affects only the weight of mitigating evidence, not its admissibility.”
Id. at 1046 (citing State v. Newell, 212 Ariz. 389, 132 P.3d 833, 849
(2006)).FN2 However, the fact that the Arizona courts clearly did, at
times, employ (or “recognize[ ]”) a causal nexus requirement does not
mean that they always did so. Indeed, in Schad itself, we concluded that
the Arizona courts did not apply a causation requirement when
considering the defendant's mitigating evidence even though he was
sentenced to death before Tennard was decided. Id. at 1046–47.
FN2. In his opening brief, Lopez argues that the
Supreme Court's decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct.
2428, 153 L.Ed.2d 556 (2002), marks the watershed in the Arizona courts'
treatment of mitigating evidence. However, Ring has no bearing on
whether Arizona courts applied an impermissible causation requirement in
capital sentencing cases, and Lopez understandably backed away from this
position in his reply brief.
Our review of the case law confirms Arizona's
unsettled past with respect to this issue. Some cases decided prior to
Tennard applied a causal nexus requirement in an impermissible
manner.FN3 Other cases, however, properly looked to causal nexus only as
a factor in determining the weight or significance of mitigating
evidence.FN4 See Eddings v. Oklahoma, 455 U.S. 104, 114–15, 102 S.Ct.
869, 71 L.Ed.2d 1 (1982) (holding that “[t]he sentencer, and the Court
of Criminal Appeals on review, may determine the weight to be given
relevant mitigating evidence”). Indeed, in several cases, the Arizona
Supreme Court expressly took mitigating evidence into consideration when
reducing a death sentence to life, regardless of any causal nexus to the
FN3. See, e.g., Styers v. Schriro, 547 F.3d 1026,
1035 (9th Cir.2008) (per curiam), cert. denied, ––– U.S. ––––, 130 S.Ct.
379, 175 L.Ed.2d 233 (2009). FN4. See, e.g., State v. Bocharski, 218
Ariz. 476, 189 P.3d 403, 426 (2008); State v. Pandeli, 215 Ariz. 514,
161 P.3d 557, 575 (2007); State v. Newell, 212 Ariz. 389, 132 P.3d 833,
849 (2006); State v. Djerf, 191 Ariz. 583, 959 P.2d 1274, 1289 (1998);
State v. Mann, 188 Ariz. 220, 934 P.2d 784, 795 (1997); State v. Towery,
186 Ariz. 168, 920 P.2d 290, 310–11 (1996); State v. Medrano, 185 Ariz.
192, 914 P.2d 225, 229 (1996). FN5. See, e.g., State v. Trostle, 191
Ariz. 4, 951 P.2d 869, 888 (1997) (reducing sentence in light of various
mitigating factors, including abusive childhood); State v. Rockwell, 161
Ariz. 5, 775 P.2d 1069, 1079 (1989) (concluding that “defendant's
character and background, together with his age at the time of the
murder and the unique circumstances of his conviction, cause us to
conclude that a sentence of death is inappropriate”); Bocharski, 189
P.3d at 426 (reducing sentence to life, in part, because of defendant's
difficult family background).
In light of this backdrop, which highlights a range
of treatment of the nexus issue, there is no reason to infer
unconstitutional reasoning from judicial silence. Rather, we must look
to what the record actually says. See Schad, 606 F.3d at 1046–47.
Because the state court made clear that it considered all the mitigating
evidence and found it wanting, Lopez's claim fails.
II. Ineffective assistance of counsel (claim 1C)
A. Section 2254(e)(2)
We next turn to Lopez's ineffective assistance claim.
At his resentencing in 1990, Lopez unsuccessfully sought to establish a
mitigating factor of pathological intoxication based on the evaluation
of his psychiatric expert, Dr. Otto Bendheim. Lopez attributes this
failure to ineffective assistance of counsel. In his petition for
post-conviction relief (“PCR petition”), Lopez specifically complained
that counsel failed to provide Dr. Bendheim with the pretrial statements
and trial testimony of Pauline Rodriguez and Yodilia Sabori describing
his behavior on the night of the murder. This omission constituted
ineffective assistance, Lopez argued, because Rodriguez and Sabori's
statements were “stronger evidence of pathological intoxication than any
items previously submitted to Dr. Bendheim.” The trial court declined to
hold an evidentiary hearing and dismissed the petition. Lopez raised the
same claim in his petition for review in the Arizona Supreme Court,
which also ordered dismissal.
Lopez went on to broaden his ineffective assistance
claim in his amended federal habeas petition. Coupled with his claim
regarding the two witnesses, Lopez newly alleged that counsel failed to
furnish Dr. Bendheim with a broad range of biographical data and family
and social history that were necessary for a proper diagnosis. This
information included the abandonment of Lopez's family by his father,
his family's extreme poverty, Lopez's history of substance abuse and
exposure to toxic substances, and his low education level. Lopez argued
that an investigation into his personal history was necessary for Dr.
Bendheim to establish a base line for his cognitive functioning, compare
his functioning when intoxicated with the base line, determine if
intoxication exacerbated any underlying psychiatric problems, assess him
for any addictive disease, determine any neurologic deficits and the
effects of intoxication on such deficits, and evaluate any other
influences on his behavior or thought processes during the murder. FN6.
Lopez denies that he broadened his claim in federal court. Rather, he
argues that he fairly presented his claim to state court by alleging
that counsel failed to provide Dr. Bendheim “all of the obviously
relevant information” that was “necessary ... to render a complete
diagnosis.” This argument fails as it is clear specifically from the
face of the PCR petition that, by “relevant evidence,” Lopez meant the
pretrial statements and trial testimony of Rodriguez and Sabori.
The state initially conceded that Lopez's ineffective
assistance claim was “properly exhausted.” Nearly eight years later,
however, the state sought to retract its concession, contending that
Lopez's ineffective assistance claim went “far beyond” what was
presented to the state court. The district court agreed with the state
and dismissed claim 1C as procedurally defaulted. The parties strongly
contest whether the state waived procedural default and whether the
district court erred in reaching this issue sua sponte. We need not and
do not address this issue, however, because we affirm the dismissal of
Lopez's claim on an alternate ground. Even assuming that the district
court should not have reached the issue of procedural default, Lopez
failed to present any of the evidence in support of his expanded claim
in state court. Thus, he is separately barred from seeking relief under
28 U.S.C. § 2254(e)(2).
Section 2254(e)(2) imposes a high bar on expanding
the record to include evidence that was not presented in state court.
The section provides: If the applicant has failed to develop the factual
basis of a claim in State court proceedings, the court shall not hold an
evidentiary hearing on the claim unless the applicant shows that— (A)
the claim relies on— (i) a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable; or (ii) a factual predicate that could not have
been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by
clear and convincing evidence that but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the
underlying offense. 28 U.S.C. § 2254(e)(2). These “same restrictions
apply a fortiori when a prisoner seeks relief based on new evidence
without an evidentiary hearing.” Holland v. Jackson, 542 U.S. 649, 653,
124 S.Ct. 2736, 159 L.Ed.2d 683 (2004) (per curiam); accord Cooper–Smith
v. Palmateer, 397 F.3d 1236, 1241 (9th Cir.2005). The parties here
chiefly dispute whether the statute's trigger—namely, the petitioner's
“fail[ure] to develop the factual basis of a claim in State court
proceedings”—applies to Lopez. FN7. Lopez argues that the state waived
this argument by failing to raise it in district court. However, in its
merits brief to the district court, the state expressly argued that
Lopez did not satisfy § 2254(e)(2).
A petitioner “fail[s] to develop the factual basis of
a claim in State court proceedings” under the opening clause of §
2254(e)(2) where “there is lack of diligence, or some greater fault,
attributable to the prisoner or the prisoner's counsel.” Williams, 529
U.S. at 432, 120 S.Ct. 1479. Diligence “depends upon whether the
prisoner made a reasonable attempt, in light of the information
available at the time, to investigate and pursue claims in state court;
it does not depend ... upon whether those efforts could have been
successful.” Id. at 435, 120 S.Ct. 1479. Lopez was not diligent in
developing his claim. In his post-conviction proceedings, Lopez did not
allege that his attorney at sentencing was ineffective in failing to
investigate Lopez's personal history and to furnish Dr. Bendheim with
those facts, but rather complained only that counsel failed to provide
the doctor with the statements and testimony of Rodriguez and Sabori.
The problem, then, is not simply that Lopez failed to develop the
factual underpinnings of his claim—Lopez failed to present this claim
Although state law required Lopez to attach
“[a]ffidavits, records, or other evidence currently available to [him]
supporting the allegations” to his PCR petition, Ariz. R.Crim. P. 32.5,
Lopez submitted none of the contested evidence regarding his childhood,
mental health, or family and social history. Rather, consistent with his
narrow ineffective assistance claim, the only evidence that Lopez
attached to his PCR petition relating to claim 1C consisted of the
pretrial interviews of Rodriguez and Sabori, and an affidavit of Dr.
Bendheim attesting that these “new materials [made his] earlier
diagnosis of pathological intoxication more probable than previously
expressed.” Notably, Lopez does not contend that he lacked access to the
information from his family members regarding family history even though
he could presumably obtain it without court order and with minimal
expense. See Dowthitt v. Johnson, 230 F.3d 733, 758 (5th Cir.2000)
(holding that the petitioner was not diligent where he failed to present
affidavits from family members and did not show that they could not be
obtained absent an order for discovery or a hearing). Because Lopez was
not diligent in presenting the new evidence at issue, no evidentiary
hearing is required. Section 2254(e)(2) applies.FN8 In addition, Lopez
cannot meet the requirements of § 2254(e)(2)(A)—that is, show that he
makes a claim based on a new, retroactively applicable rule of
constitutional law or “a factual predicate that could not have been
previously discovered through the exercise of due diligence.” Thus, he
is barred from seeking relief. See Cooper–Smith, 397 F.3d at 1241–42.
FN8. Lopez's claims that he was diligent in his state
proceedings are unavailing. Lopez argues that the new evidence at issue
merely “supplement [s] the facts supporting the claim [he] made in state
court and would have been uncovered had the state court granted an
evidentiary hearing.” But given the narrow nature of his ineffective
assistance claim, the state court was justified in finding that “no
material issue of fact or law exists which would be served by any
further proceedings” and dismissing his petition without a hearing.
B. Original ineffective assistance of counsel
Because Lopez cannot rely on evidence that he failed
to present in state court, we will only determine whether Lopez
established his original ineffective assistance claim—namely, his claim
that counsel performed deficiently and prejudicially by failing to
furnish Dr. Bendheim with the statements and testimony of Rodriguez and
Sabori. To prevail on an ineffective assistance claim, Lopez must show
that counsel's performance was objectively deficient and that the
deficient performance caused him prejudice. Strickland v. Washington,
466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also
Williams, 529 U.S. at 391, 120 S.Ct. 1495 (holding that Strickland is
the “clearly established” federal law governing habeas claims of
ineffectiveness of counsel under AEDPA). We “need not determine whether
counsel's performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies.”
Rather, “[i]f it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice ..., that course should be
followed.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052.
To prepare his evaluation for the 1987 sentencing,
Dr. Bendheim interviewed Lopez and reviewed police reports regarding the
murder; prior charges and arrests; a statement by Raymond Hernandez,
Pauline Rodriguez's husband; and descriptions of the crime scene. On
this basis, Dr. Bendheim “hypothesi[zed]” that Lopez suffered from
pathological intoxication, which he described as a condition that causes
individuals who consume small amounts of alcohol to react in an
“unexpected, unpredictable” manner that is “characterized frequently by
extreme violence.” In particular, Dr. Bendheim noted a statement by
Hernandez that Lopez was “mild and meek” when sober but “very mean” when
drunk, along with information from defense counsel that other character
witnesses described similar behavior patterns on Lopez's part. Although
Lopez told Dr. Bendheim that he was not intoxicated on the night of the
murder, the doctor did not believe him because other evidence indicated
to the contrary.
At resentencing, Lopez's new counsel provided Dr.
Bendheim with additional criminal records detailing other incidents in
which Lopez had engaged in criminal and violent behavior—in particular,
the pre-sentence investigation relating to his conviction for resisting
arrest and a police report regarding an alleged sexual assault in 1986.
Dr. Bendheim found that this new information corroborated his initial
assessment. Based on the totality of the evidence, the doctor
“speculate[d] that with a great preponderance of probability[,] not
certainty, but probability” that but for Lopez's intoxication on the
night of the crime, “the murder would not have occurred.” However, Dr.
Bendheim underlined that he could offer only a “tentative diagnosis” of
pathological intoxication, not a diagnosis with “medical certainty,” and
that his diagnosis was “to a very large degree ... speculative.” This
uncertainty was due to the fact that he was not present at the time of
the crime to observe Lopez's behavior and that Lopez himself “could not
confirm that he undergoes a significant personality change when
In rebuttal, the state presented the testimony of Dr.
Robert Dean, a psychiatrist and expert on alcoholism. Dr. Dean never met
Lopez and had experienced only one encounter with a person presumed to
suffer from pathological intoxication during his residency. However, Dr.
Dean had read considerable amounts of material on the disorder and
reviewed the documents on which Dr. Bendheim relied in order to assess
Dr. Bendheim's evaluation.
Dr. Dean rejected Dr. Bendheim's diagnosis. Dr. Dean
stated that pathological intoxication was uncommon, and he was not aware
of any cases in his twenty-five years of psychiatric practice. He also
noted that Lopez lacked the predisposing conditions to the disorder,
such as advanced age and organic pathology in the brain. Focusing on a
police report describing Lopez's behavior in the alleged sexual assault
of Cecilia Rodriguez,FN9 Dr. Dean concluded that Lopez did not suffer a
consistent, pathological response to minimal quantities of alcohol and
that he did not show a pathological response to alcohol within the
window of time that is typical of the disorder. Dr. Dean also
specifically reviewed the pretrial statements and trial testimony of
Rodriguez and Sabori and testified that those materials did not change
his opinion. FN9. Cecilia Rodriguez is a different person than Pauline
Rodriguez, whom we refer to throughout this opinion as “Rodriguez.”
At the resentencing, the judge found that Lopez
failed to show pathological intoxication as a mitigating factor. In the
court's view, Dr. Bendheim's testimony did not rise to any level of
medical certainty, but rather rested upon a “ ‘hypothesis' or
‘speculation.’ ” In addition, “[t]he state presented evidence to rebut
the ‘hypothesis' and ‘speculation.’ ” Lopez “failed to meet his burden
of proof of establishing this mitigating factor by a preponderance of
the evidence,” and thus the “mitigating circumstance [did] not exist.”
The Arizona Supreme Court affirmed after an independent review of the
record. Lopez II, 857 P.2d at 1267–68.
In his post-conviction proceedings, Lopez argued that
sentencing counsel was ineffective for failing to furnish Dr. Bendheim
with the eyewitness statements and testimony of Rodriguez and Sabori
regarding Lopez's behavior on the night of the murder so that the doctor
could make a more definitive diagnosis. Sabori attested in particular
that she met Lopez in a neighborhood park on the night of the murder and
talked with him from around 8 p.m. to 11:15 p.m. Sabori then went home
to Rodriguez's apartment, where she was staying. About ten or fifteen
minutes later, Lopez appeared at her front door drunk. Lopez asked
Sabori if she got high, and she told him no. At that point, Lopez
disappeared down an alley for a few minutes; when he returned he was
shaking, unsteady, and belligerent. When Sabori tried to go into the
house, Lopez closed the door on her hand to prevent her from leaving.
Ultimately, with the help of Rodriguez, Sabori broke free and went
Rodriguez generally corroborated Sabori's statement.
Rodriguez “believe[d] [Lopez] was on something” that night and observed
that “he wasn't[,] you know [,] hi[m]self.” Rodriguez stated that Lopez
came to the house around three times a week when he was drunk. When
Lopez was sober, he was “quiet” and “real nice,” but he would “get[ ]
really heavy on people” when drunk. The evening of the murder he was
belligerent and yelled obscenities at Rodriguez. In his new affidavit
submitted with the PCR petition, Dr. Bendheim stated that, in light of
the statements of Rodriguez and Sabori, he could “now make a more
certain diagnosis of pathological intoxication.” Nonetheless, the state
court denied Lopez's ineffective assistance claim, finding that there
was no “reasonable probability that the result of the ... sentencing
procedures would have been different because of [this] alleged
The state court's holding does not constitute an
unreasonable application of Strickland. Lopez cannot show a “reasonable
probability that, absent the errors [Lopez alleges], the sentencer ...
would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.” Strickland, 466 U.S. at 695, 104
S.Ct. 2052. Here, the statements of Rodriguez and Sabori were largely
duplicative of other information provided to Dr. Bendheim. For example,
one of the documents given to Dr. Bendheim for the 1987 sentencing
proceeding was a police report containing Rodriguez's statements that
Lopez was “drunk or high” several hours before the murder, and that he
tried to force his way into her apartment. Lopez's counsel also provided
Dr. Bendheim with the statement from Raymond Hernandez that Lopez was
“very mean” when drunk and “mild and meek” when sober, and Lopez's
counsel told Dr. Bendheim of other witnesses who claimed that Lopez
became “like another person when he drinks.” Lopez's counsel at the 1990
resentencing similarly provided Dr. Bendheim with further evidence of
Lopez's violent behavior when drunk, which served to corroborate Dr.
Bendheim's opinion. Dr. Bendheim underlined, through his testimony at
sentencing, that his assessment of Lopez was only “tentative,” lacked
“medical certainty,” and was “to a very large degree ... speculative.”
It is true that Dr. Bendheim later testified that, had he reviewed the
additional testimony of Rodriguez and Sabori, his original diagnosis
would have been “more probable” and “more certain.” But we are not
convinced that his “more probable” diagnosis would have changed the
outcome of the sentencing proceeding. The new evidence would have done
little to refute Dr. Dean's contrary assessment that Lopez did not
suffer from pathological intoxication. As Dr. Dean pointed out,
pathological intoxication is an extremely rare condition, Lopez did not
exhibit any of the predisposing factors, and the evidence from his
criminal file indicated that he did not react pathologically to alcohol
or show reactions within the typical time-frame after drinking. After
Dr. Dean examined Rodriguez and Sabori's statements, he found nothing in
them to alter his opinion, and those statements were otherwise available
in the record for the court's consideration.
Finally, the sentencing court made a strong finding
as to the especially heinous, cruel, or depraved nature of the murder,
remarking that in his years on the bench he had “never seen [a
first-degree murder case] as bad as this one,” and the Arizona Supreme
Court affirmed in similarly forceful terms. See Lopez II, 857 P.2d at
1264–66. Ultimately, the absence of Rodriguez and Sabori's testimony
from Dr. Bendheim's assessment did not affect the balance of the
aggravating and mitigating factors. Lopez has not shown a “reasonable
possibility” that, but for counsel's alleged errors, the sentencer would
have concluded that Lopez did not deserve a death sentence. See
Strickland, 466 U.S. at 695, 104 S.Ct. 2052.
III. Suppression of Brady Material (claim 10)
As a final matter, we address Lopez's Brady claim
with respect to an unrelated sexual assault.FN10 Less than a week after
Holmes' death, Lopez was arrested for the sexual assault of Cecilia
Rodriguez. See supra p. 1207–08. Although Lopez's trial counsel received
police reports documenting the incident, the government failed to
provide Lopez with a handwritten note that was later discovered in a
police file. The note, whose author is unknown, opines that there was an
insufficient factual basis to support a conviction of Lopez for the
assault and that the victim was not credible. Specifically, the note
states that there were “no findings by a physician indicating sexual
assault”; that the victim's claims “were not corroborated by [the]
physician's report”; and that the victim had a previous consensual
sexual relationship with Lopez. Lopez was never charged with a crime as
a result of the incident. However, the note was not made available to
Lopez until his habeas claims were pending in federal court, long after
the state court proceedings. FN10. On September 16, 2010, we granted
Lopez a certificate of appealability with respect to this claim and
directed the government to file a responsive brief.
Lopez, who introduced evidence of the sexual assault
to corroborate his pathological intoxication mitigation defense, now
claims that the note, which undermines the sexual assault allegation,
would have been favorable to his defense. He argues that the
government's failure to disclose the note violated his constitutional
due process rights under Brady, 373 U.S. at 87, 83 S.Ct. 1194. The
district court concluded that because Lopez failed to present the issue
in state court and no state remedy remained available, the claim was
“technically exhausted but procedurally defaulted,” but that Lopez had
shown no prejudice to overcome the default. Lopez argues on appeal that
there is cause and prejudice to excuse the procedural default and that
habeas relief must be granted. We conclude that there was no
constitutional violation under Brady; it likewise follows that Lopez is
unable to establish prejudice to excuse the procedural default.
Under Brady, the prosecution must disclose
exculpatory evidence to a defendant if it is “material” either to guilt
or to punishment. 373 U.S. at 87, 83 S.Ct. 1194. However, “[f]ailure to
disclose information only constitutes a Brady violation if the requested
information is ‘material’ to the defense.” Sanchez v. United States, 50
F.3d 1448, 1454 (9th Cir.1995). Materiality rests on “a reasonable
probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.” United States v.
Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).
The handwritten note fails the materiality test in
several respects. To begin, the note offers no new factual evidence.
“Evidence that is merely cumulative is not material.” United States v.
Strifler, 851 F.2d 1197, 1202 (9th Cir.1988). The note included
underlying facts regarding the alleged sexual assault and legal opinions
of the unknown author. The facts laid out in the note were merely
cumulative of the facts contained in the police reports, which were
available to Lopez and submitted by Lopez's counsel at the 1990
resentencing. Accordingly, this information was not “material” for Brady
purposes. See Barker v. Fleming, 423 F.3d 1085, 1099 (9th Cir.2005) (new
evidence that “very nearly replicated evidence already admitted” into
evidence is not “material” under Brady ); United States v. Vgeri, 51
F.3d 876, 880 (9th Cir.1995) (same). To the extent the note included
legal opinions, we have previously held that “a prosecutor's opinions
and mental impressions of the case are not discoverable under Brady
unless they contain underlying exculpatory facts.” Morris v. Ylst, 447
F.3d 735, 742 (9th Cir.2006). Applying the same rationale here, we
conclude that the legal opinions contained in the note do not constitute
Brady material required to be provided to Lopez.
Lopez also fails to demonstrate that the note was
“material” in that “had the [note] been disclosed, the result of the
proceeding would have been different.” Bagley, 473 U.S. at 682, 105
S.Ct. 3375. Lopez argues that the note provided “important exculpatory
evidence which would have rebutted non-statutory aggravating evidence
relied upon by the prosecution and considered by the trial court as
outlined above.” However, Arizona does not recognize non-statutory
aggravating evidence, see Ariz.Rev.Stat. § 13–703(F), and there is no
indication that the trial court considered such evidence at Lopez's
sentencing. As Lopez acknowledges, the trial court found only one
statutory aggravating factor—that Holmes' murder was committed in a
cruel, heinous, or depraved manner. Lopez II, 857 P.2d at 1264. Lopez
identifies no evidence indicating that the trial court considered the
unrelated sexual assault in finding this aggravating factor.
Nor has Lopez, who relied on the existence of the
alleged assault to corroborate his mitigation defense, demonstrated how
this exculpatory evidence as to the unrelated assault would have
influenced the state court's findings as to mitigation. Indeed, to the
extent that the note would have influenced the sentencing proceeding, it
would have undermined Lopez's foundation of pathological intoxication.
We conclude that the handwritten note is not
“material” for Brady purposes. The facts contained in the note were
cumulative of information previously available in the police reports and
Lopez has not remotely shown that “had the evidence been disclosed, the
result of the proceeding would have been different.” Bagley, 473 U.S. at
682, 105 S.Ct. 3375. Accordingly, the district court appropriately
denied relief on Lopez's Brady claim. AFFIRMED.