State v. Lynch

• Decision Date: 10 September 2015
• Docket Number: No. CR–12–0359–AP.,CR–12–0359–AP.
• Citation: 723 Ariz. Adv. Rep. 4,721 Ariz. Adv. Rep. 4,238 Ariz. 84,357 P.3d 119
• Parties: STATE of Arizona, Appellee, v. Shawn Patrick LYNCH, Appellant.
• Court: Arizona Supreme Court

238 Ariz. 84
357 P.3d 119
721 Ariz. Adv. Rep. 4
723 Ariz. Adv. Rep. 4

STATE of Arizona, Appellee
v.
Shawn Patrick LYNCH, Appellant.

No. CR–12–0359–AP.

Supreme Court of Arizona.

Sept. 10, 2015.

357 P.3d 126

Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor General, Lacey Stover Gard (argued), Chief Counsel, Capital Litigation Section, Jeffrey L. Sparks, Assistant Attorney General, Tucson, Attorneys for State of Arizona.

Tennie B. Martin, Mikel Steinfeld (argued), Deputy Public Defenders, Phoenix, Attorneys for Shawn Patrick Lynch.

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.

238 Ariz. 91

¶ 1 Shawn Patrick Lynch was convicted of first-degree murder, kidnapping, armed robbery, and burglary. He was sentenced to death for the murder and to twenty-one years' imprisonment for the other offenses. We remanded for a new penalty-phase proceeding on the murder conviction in State v. Lynch (Lynch I ), 225 Ariz. 27, 43 ¶ 89, 234 P.3d 595, 611 (2010). On resentencing, the jury again returned a death verdict. We have jurisdiction over this automatic appeal pursuant to Article 6, Section 5(3) of the Arizona Constitution and A.R.S. §§ 13–755 and 13–4031.

I. FACTUAL BACKGROUND

¶ 2 The victim, James Panzarella, was seen at a Scottsdale bar with Lynch and Michael Sehwani on March 24, 2001. Lynch, Sehwani, and Panzarella went to Panzarella's residence early the next morning. Later that morning, Sehwani used Panzarella's American Express card at a supermarket. Ten minutes later, the card was reported lost. Sehwani again used the card at a convenience store and unsuccessfully attempted to use it at a department store. The same day, Panzarella's Bank One card was used at a restaurant, a convenience store, and a motel. The Bank One card was used the following day to make a cash withdrawal and various purchases, including Everlast shoes.

¶ 3 The next afternoon, Panzarella was found in his home tied to a chair with his throat slit. Police also found credit card receipts from purchases made that morning at a supermarket and convenience store.

¶ 4 Police arrested Lynch and Sehwani that afternoon as they entered a truck in a motel parking lot. Sehwani was wearing Everlast shoes and had Panzarella's credit cards and checks in his wallet. In the truck and a motel room, police found keys to Panzarella's car, a sweater with Panzarella's blood on it, and a .45 caliber pistol belonging to Panzarella. Blood on Lynch's shoes matched Panzarella's DNA.

¶ 5 A jury found Lynch guilty of first-degree murder, armed robbery, burglary, and kidnapping. In his first aggravation-phase trial, the jury made separate findings that the murder was especially heinous and cruel, but could not agree on whether it was especially depraved. See A.R.S. § 13–751(F)(6). The jury also could not decide if the murder was committed in expectation of pecuniary gain. See A.R.S. § 13–751(F)(5). That jury did not reach a unanimous verdict

238 Ariz. 92

357 P.3d 127

in the penalty phase. A second penalty-phase jury found that the murder was especially depraved and committed for pecuniary gain and that a death sentence was appropriate. We remanded for a new penalty-phase trial because the trial judge erroneously instructed the second penalty-phase jury that the (F)(6) aggravator constituted three separate aggravating circumstances. Lynch I, 225 Ariz. at 42–43 ¶¶ 82–89, 234 P.3d at 610–11. Following the new penalty-phase trial, Lynch was again sentenced to death.

II. ISSUES ON APPEAL

A. Prosecutorial Misconduct

¶ 6 Lynch asserts that the State engaged in prosecutorial misconduct in several ways, individually and in combination. “This Court will reverse a conviction for prosecutorial misconduct only when (1) misconduct is indeed present; and (2) a reasonable likelihood exists that the misconduct could have affected the jury's verdict, thereby denying [the] defendant a fair trial.” State v. Martinez, 218 Ariz. 421, 426 ¶ 15, 189 P.3d 348, 353 (2008) (internal quotation marks omitted). Even when an instance of prosecutorial misconduct does not warrant reversal, “an incident may nonetheless contribute to a finding of persistent and pervasive misconduct if the cumulative effect of the incidents shows that the prosecutor intentionally engaged in improper conduct and did so with indifference, if not a specific intent, to prejudice the defendant.” State v. Roque, 213 Ariz. 193, 228 ¶ 155, 141 P.3d 368, 403 (2006) (citations and internal quotation marks omitted).

¶ 7 When a defendant fails to object to an alleged incident of prosecutorial misconduct in the trial court, this Court reviews for fundamental error. Id. at 228 ¶ 154, 141 P.3d at 403. To establish fundamental error, Lynch must show that “there was error that went to the foundation of his case and denied him a fair trial, and that he was, in fact, prejudiced by the error.” State v. VanWinkle, 230 Ariz. 387, 393 ¶ 25, 285 P.3d 308, 314 (2012).

1. Argument during opening statements

¶ 8 Lynch first asserts the prosecutor improperly presented arguments during his opening statement that “largely focused on persuading the jury that little weight should be given to certain mitigating factors and expected evidence.” The trial court sustained two of Lynch's objections to the State's opening statement—that Lynch's childhood should not be considered a mitigating circumstance because “it happened 30 years ago” and that the defense wanted to “pull at [the jury's] heart strings” in its presentation of mitigating evidence. The court overruled Lynch's objection to the prosecutor's remark that no medical records supported Lynch's assertion that his father intentionally burned his hand as a child. Finally, the State implied that little weight should be given to a defense expert's life-expectancy testimony because the expert relied on a Wikipedia article and Lynch had outlived the expert's prediction for his life expectancy. The trial judge overruled Lynch's objection to these remarks.

¶ 9 “Opening statement is counsel's opportunity to tell the jury what evidence they intend to introduce. Opening statement is not a time to argue the inferences and conclusions that may be drawn from evidence not yet admitted.” State v. Bible, 175 Ariz. 549, 602, 858 P.2d 1152, 1205 (1993) (internal citation omitted). “[C]autionary instructions by the court generally cure any possible prejudice from argumentative comments during opening statements,” because we presume that jurors follow the court's instructions. State v. Manuel, 229 Ariz. 1, 6 ¶ 24, 270 P.3d 828, 833 (2011).

¶ 10 Here, the court instructed the jury that it should only consider testimony, exhibits, and stipulations as evidence and that attorneys' remarks are not evidence. As to the disallowed statements listed above, the trial judge sustained objections and properly instructed the jury not to consider them as evidence. These instructions cured any prejudice. On balance, although the prosecutor improperly made argumentative statements during opening, we find no reasonable likelihood that the misconduct affected the jury's verdict. See

238 Ariz. 93

357 P.3d 128

Martinez, 218 Ariz. at 426 ¶ 15, 189 P.3d at 353. The State's opening statement did not deny Lynch a fair trial.

2. Improper witness examination

¶ 11 Lynch argues that the prosecutor committed misconduct during his cross-examination of defense witnesses. The trial court sustained Lynch's objections to two questions that were asked and answered, the State's interruption of defense witnesses on two occasions, the State's comment to a defense expert that she should “just answer my question for once,” and other argumentative questions. The judge overruled Lynch's objections to combative remarks, including, “No, let me ask you the question.”

¶ 12 Although the State's cross-examination was aggressive, and the court would have been well within its discretion to have sustained the objections and required the prosecutor to rephrase his questions in a more civil manner, the questioning did not deny Lynch a fair trial. See State v. Bolton, 182 Ariz. 290, 308, 896 P.2d 830, 848 (1995) (“The questioning may have been argumentative. Nevertheless, the misconduct was not so egregious that it permeated the entire trial and probably affected the outcome.”). As in Bolton, “the prosecutor here did not call defendant pejorative names, refer to matters not in evidence, suggest unfavorable matter for which no proof exists, or abuse defendant in any other way.” Id. The court instructed the jury to disregard questions to which objections were sustained; to only consider testimony, exhibits, and stipulations as evidence; and that attorneys' remarks are not evidence. We presume that jurors follow...