State v. Burns

Citation708 Ariz. Adv. Rep. 10,237 Ariz. 1,344 P.3d 303
Decision Date10 March 2015
Docket NumberNo. CR–11–0060–AP.,CR–11–0060–AP.
PartiesThe STATE of Arizona, Appellee, v. Johnathan Ian BURNS, Appellant.
CourtSupreme Court of Arizona

Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor General, Jeffrey A. Zick, Chief Counsel, Jeffrey L. Sparks (argued), Assistant Attorney General, Capital Litigation Section, Phoenix, for State of Arizona.

David Goldberg (argued), Attorney at Law, Fort Collins, CO, for Johnathan Ian Burns.

Justice BRUTINEL authored the opinion of the Court, in which Chief Justice BALES, Vice Chief Justice PELANDER, and Justices BERCH and TIMMER joined.

Opinion

Justice BRUTINEL, opinion of the Court.

¶ 1 This automatic appeal arises from Johnathan Ian Burns' conviction and death sentence for the murder of Jackie H. We have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 13–4031.

I. FACTUAL BACKGROUND1

¶ 2 On January 27, 2007, Jackie and Burns met at a gas station and went out on a date. Later that evening, Jackie called her sister Randi. Jackie sounded “a little off” and “nervous” and asked Randi to meet her at the gas station as quickly as possible. Randi promptly went to the gas station and waited for Jackie. Two hours later, Jackie called Randi and said she was lost. Jackie sounded confused and could not describe where she was. Burns eventually took the phone and told Randi he was lost, but said he and Jackie would arrive within fifteen minutes. Randi waited for several hours, but Jackie never arrived. Later that day, Randi told her parents that Jackie was missing.

¶ 3 The next day, a maintenance worker found, in an apartment complex dumpster, Jackie's purse and the blouse, bra, panties, and sandals she was wearing the previous evening. The blouse and bra were torn, and the blouse was stained with Jackie's blood and had two bullet holes from a close-range firearm discharge. Semen on the panties matched Burns' DNA.

¶ 4 Police arrested Burns and searched his home and vehicles. In the trunk of Burns

' Honda Civic, police found a pair of men's jeans stained with Jackie's blood. In Burns' truck, which he was driving the night Jackie disappeared, officers discovered Jackie's blood and an earring she had worn. Inside Burns' home, police found a case for a Springfield 9mm handgun, but no gun. Mandi Smith, Burns' fiancée at the time, had purchased the gun for Burns, who was a prohibited possessor (Smith later pleaded guilty to misconduct involving a weapon based on her purchase of the gun).

¶ 5 Almost three weeks later, Jackie's body was discovered in the Sycamore Creek area. Jackie had suffered two fatal gunshot wounds

to her head and several skull fractures from blunt force impacts on her left temple, on top of her head, and under her right eye. She also had vaginal bruising likely caused by blunt force. Sperm on an anal swab taken from Jackie's body matched Burns' DNA. The medical examiner determined that wild animals had severed Jackie's head postmortem. Burns' cellphone records indicated that he drove to the Sycamore Creek area the night Jackie disappeared and stayed there for several hours.

¶ 6 Shortly before his arrest, Burns had disposed of the Springfield 9mm handgun Mandi had purchased for him. Police later located the handgun. A ballistics expert determined that it had fired a bullet found in the sand beneath where Jackie's head had been.

¶ 7 The State charged Burns with sexual assault, kidnapping, first-degree murder, and misconduct involving weapons; a jury found Burns guilty on all counts.

¶ 8 During the aggravation phase of the trial, the jury found two aggravating circumstances: (1) Burns had a prior or contemporaneous felony conviction under A.R.S. § 13–751(F)(2) ; and (2) the murder was especially cruel, heinous, or depraved under A.R.S. § 13–751(F)(6). After the penalty phase, the jury determined that Burns should be sentenced to death. In addition to imposing the death sentence for the murder, the trial court sentenced Burns to consecutive prison terms totaling sixty-eight years for the other three convictions.

II. ISSUES ON APPEAL

¶ 9 Burns raises twenty-six issues on appeal. For the reasons stated below, we affirm his convictions and sentences.

A. Continuance

¶ 10 Burns contends the trial court abused its discretion by denying his motions to continue the guilt and penalty phases of his trial. We will not find that a trial court abused its discretion in denying a continuance unless the defendant shows prejudice. State v. Barreras, 181 Ariz. 516, 520, 892 P.2d 852, 856 (1995) ; see also State v. Lamar, 205 Ariz. 431, 437 ¶ 32, 72 P.3d 831, 837 (2003). Burns argues he was prejudiced because (1) he could not produce the results of a functional MRI

exam; (2) Dr. Wu, Burns' neuropsychiatrist, could not analyze Burns' PET scan ; (3) Dr. Cunningham, Burns' expert on developmental psychology and prison violence, could not present Burns' risk assessment for violence in prison; and (4) Burns could not rebut the testimony of Dr. Kirkley, the State's psychological expert.

¶ 11 At Burns' request, the superior court continued the guilt phase of the trial three times, adding more than a year to counsel's preparation time. One of these continuances was due to Burns' refusal to cooperate with counsel's efforts to prepare mitigation evidence, while the other two were granted because Burns' counsel needed additional time to prepare. Burns moved to continue the guilt phase three more times, but the trial court denied those motions. After the jury found Burns guilty, Burns asked for a month-long recess, which the court also denied.

¶ 12 Continuances “shall be granted only upon a showing that extraordinary circumstances exist and that delay is indispensable to the interests of justice.” Ariz. R.Crim. P. 8.5(b). In considering such a request, a trial court must “consider the rights of the defendant and any victim to a speedy disposition of the case.” Id. ¶ 13 Although denying counsel adequate time to prepare a case for trial may deny the defendant a substantial right, State v. Narten, 99 Ariz. 116, 120, 407 P.2d 81, 83 (1965), time constraints by themselves do not create prejudice. See State v. Salinas, 129 Ariz. 364, 367, 631 P.2d 519, 522 (1981). In determining whether a defendant's rights were violated, this Court looks to the totality of the circumstances.See Barreras, 181 Ariz. at 520, 892 P.2d at 856.

¶ 14 Because Burns has failed to show prejudice, we cannot conclude that the trial court abused its discretion. The court gave defense counsel more than another year to prepare, and Burns' trial did not begin for three-and-a-half years after indictment. Further, all of the evidence Burns claims he was unable to present pertains to the mitigation stage of the trial, which did not commence until four years after indictment. Despite the trial court's refusal to grant additional continuances, Burns was able to present twelve days' worth of mitigation that included much of the information he alleges he could not offer because of time constraints.

¶ 15 For example, Dr. Wu testified at length about Burns' low frontal-lobe activity and showed Burns' PET scans

to the jury. The court precluded only a few portions of Dr. Wu's testimony relating to the analysis Dr. Wu failed to disclose during a pre-trial interview that took place after his report was complete and that was disclosed mere days before he testified. Similarly, Dr. Cunningham's rebuttal testimony was not timely disclosed and was therefore precluded, but was also irrelevant for the purpose offered.2

¶ 16 Additionally, Burns fails to explain how a functional MRI

scan would have aided his mitigation.3 Because Burns has not provided any basis for this argument, he has failed to demonstrate prejudice.4

State v. VanWinkle, 230 Ariz. 387, 391 ¶¶ 10–13, 285 P.3d 308, 312 (2012). Similarly, Burns was able to meaningfully rebut Dr. Kirkley's testimony through his own experts, and thus was not prejudiced.

¶ 17 Notably, Jackie's family repeatedly voiced frustration at the delays in the trial. Under Rule 8.5(b), the trial court must consider the victims' right to a timely resolution of the charges and did not err by proceeding with the trial after three-and-a-half years. Ariz. R.Crim. P. 8.5(b) ; State v. Dixon, 226 Ariz. 545, 555 ¶ 56, 250 P.3d 1174, 1184 (2011).

¶ 18 The trial court did not abuse its discretion in denying the continuance motions.

B. Limitation of Defense Counsel's Voir Dire

¶ 19 Burns contends the trial court erred in preventing defense counsel from asking prospective jurors if they would consider a life sentence for a defendant convicted of sexual assault and kidnapping in addition to murder. We review a trial court's ruling on voir dire for an abuse of discretion.” State v. Patterson, 230 Ariz. 270, 273 ¶ 5, 283 P.3d 1, 4 (2012).

¶ 20 In capital cases, a trial court must permit a defendant to ask potential jurors whether they would automatically vote for the death penalty. Morgan v. Illinois, 504 U.S. 719, 729–33, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). But we have rejected the argument that Morgan entitles a defendant to ask prospective jurors whether they will vote for death based on specific aggravating factors. State v. (Joe C.) Smith, 215 Ariz. 221, 231 ¶ 42, 159 P.3d 531, 541 (2007).

¶ 21 The trial court's rulings complied with Morgan. Burns was permitted to ask prospective jurors in both the juror questionnaires and during voir dire whether they would automatically vote for the death penalty. But he was not entitled to ask whether they would impose the death penalty based on the specific facts of his case. Under Smith, the trial court properly stopped this line of questioning and did not abuse its discretion. 215 Ariz. at 231 ¶ 42, 159 P.3d at 541.

C. Jurors Struck for Cause

¶ 22 Burns argues the trial court unconstitutionally struck three jurors—68, 186, and 198—for cause because of their views on the death penalty. We review a trial court's rulings on strikes for...

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