426 P.3d 1176 (Ariz. 2018), CR-14-0351-AP, State v. Acuna Valenzuela

Docket Nº:CR-14-0351-AP
Citation:426 P.3d 1176, 245 Ariz. 197
Opinion Judge:VICE CHIEF JUSTICE BRUTINEL
Party Name:STATE of Arizona, Appellee, v. Jose Alejandro ACUNA VALENZUELA, Appellant.
Attorney:Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor General, Lacey Stover Gard, Chief Counsel, Jeffrey L. Sparks (argued), Assistant Attorney General, Capital Litigation Section, Phoenix, Attorneys for State of Arizona Bruce Peterson, Office of the Legal Advocate, Kerri L. Chambe...
Judge Panel:VICE CHIEF JUSTICE BRUTINEL authored the opinion of the Court, in which CHIEF JUSTICE BALES and JUSTICES PELANDER, TIMMER, BOLICK, and GOULD and JUDGE JONES joined.
Case Date:September 25, 2018
Court:Supreme Court of Arizona
 
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426 P.3d 1176 (Ariz. 2018)

245 Ariz. 197

STATE of Arizona, Appellee,

v.

Jose Alejandro ACUNA VALENZUELA, Appellant.

No. CR-14-0351-AP

Supreme Court of Arizona

September 25, 2018

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Appeal from the Superior Court in Maricopa County, The Honorable Peter C. Reinstein, Judge, No. CR2011-140108. AFFIRMED

Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor General, Lacey Stover Gard, Chief Counsel, Jeffrey L. Sparks (argued), Assistant Attorney General, Capital Litigation Section, Phoenix, Attorneys for State of Arizona

Bruce Peterson, Office of the Legal Advocate, Kerri L. Chamberlin (argued), Colin F. Stearns, Deputy Legal Advocates, Phoenix, Attorneys for Jose Alejandro Acuna Valenzuela

VICE CHIEF JUSTICE BRUTINEL authored the opinion of the Court, in which CHIEF JUSTICE BALES and JUSTICES PELANDER, TIMMER, BOLICK, and GOULD and JUDGE JONES[*] joined.

OPINION

VICE CHIEF JUSTICE BRUTINEL

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[¶ 1] This automatic appeal arises from Jose Alejandro Acuna Valenzuela’s ("Acuna") convictions and death sentence for the murder of Edgar S. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution and A.R.S. § § 13-4031 and 13-4033(A)(1).

[¶ 2] In August 2011, Edgar S. and his girlfriend Perla M. went to a local Baskin-Robbins to get ice cream. They saw Acuna, who had previously been Edgar’s friend. In 2008, Edgar had testified against Acuna during a criminal proceeding in which Acuna was sentenced to prison. Thereafter, their relationship soured.

[¶ 3] When Acuna saw the couple inside Baskin-Robbins, he looked at them twice, his eyes widened, and he walked toward an exit door and yelled at Edgar, "I told you I didn’t want to [expletive] see you." Once outside, Acuna saw Sandra P., a friend from high school, who was running errands in the same shopping complex. Acuna appeared upset while talking with Sandra, saying (about Perla) that she "told me that she hadn’t seen him, that she wasn’t talking to him no more," and she "lied to me," and (about Edgar) that "I did prison time for him." Sandra offered to help Acuna, reassuring him that she would support him in a fight against Perla.

[¶ 4] After Edgar and Perla left the Baskin-Robbins and got into Perla’s car, Edgar said, "Baby, he’s coming." Over her right shoulder, Perla saw Acuna running and firing a gun at her vehicle. Bullets shattered the car window and struck Edgar. Edgar tried to get out of the vehicle while Acuna continued to run behind the car and shoot at Perla. Acuna then left the scene in Sandra’s car.

[¶ 5] Edgar sustained multiple bullet wounds, and Perla was hit in her upper back. She survived, ultimately undergoing two surgeries. Edgar died from his injuries.

[¶ 6] Acuna was convicted after trial of first degree murder, attempted first degree murder, discharge of a firearm at a structure, and misconduct involving weapons. The jury found two aggravating circumstances: (1) that Acuna had been previously convicted for another serious offense (the attempted first degree murder of Perla); and (2) that he murdered Edgar in retaliation for testimony in a court proceeding. A.R.S. § 13-751(F)(2), (F)(12). Considering these factors and the mitigation evidence, the jury decided that Acuna should be sentenced to death for Edgar’s murder. For the other convictions, the trial court imposed concurrent prison sentences, the longest for 15.75 years, to be served consecutively to the death sentence.

DISCUSSION

A. Misconduct-Involving-Weapons Charge

[¶ 7] Acuna contends the trial court erred by failing to sua sponte sever the misconduct-involving-weapons charge, thus permitting the jury to hear that he was a convicted felon. Because Acuna did not object at trial, we review only for fundamental error. See State v. Laird, 186 Ariz. 203, 206, 920 P.2d 769 (1996).

[¶ 8] Before trial, the State noticed its intent to present evidence of Acuna’s previous felony conviction and Edgar’s prior testimony against Acuna as other-act evidence showing motive. See Ariz. R. Evid. 404(b); State v. Ferrero, 229 Ariz. 239, 274 P.3d 509 (2012). At trial, the State introduced testimony that Edgar had "testified in a previous criminal matter against" Acuna, that Acuna was not legally entitled to possess a firearm because "[h]e was a prohibited possessor [and h]e had a prior felony conviction," that the felony conviction was for a "lesser charge," and that he had been sentenced to the Department of Corrections for 2.25 years. A minute entry

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from the previous trial, as well as a Maricopa County Superior Court affidavit (stating there was no court record showing that Acuna’s right to possess a firearm had been restored following his felony conviction), and redacted copies of Acuna’s prison records were all admitted.

[¶ 9] Under the version of Rule 13.4(a) in effect at the time of trial, the trial court was authorized, but not required, to order a severance of offenses on its own initiative when "necessary to promote a fair determination of the guilt or innocence of any defendant of any offense." Ariz. R. Crim. P. 13.4(a) (2011) (emphasis added).1 But, "[t]he right to severance is waived if the defendant fails to timely file and renew a proper motion for severance." Ariz. R. Crim. P. 13.4(c).

[¶ 10] The trial court did not err, much less commit fundamental error, in failing to sua sponte order severance. Acuna argues the trial court had a duty to protect his constitutional rights, relying upon State v. Torres, 206 Ariz. 52, 58 ¶ 18, 75 P.3d 142 (App. 2003), vacated in part, 208 Ariz. 340, 93 P.3d 1056 (2004). Torres, however, is distinguishable as it addressed a defendant’s right to competent counsel, a right especially "vulnerable to violation." See State v. Longoria, 123 Ariz. 7, 10, 596 P.2d 1179 (App. 1979) (stating that Rule 13.4 "does not require the court to order a severance; it only gives it the discretion to do so on its own initiative").

[¶ 11] Acuna also argues that the trial court erred by allowing evidence of his prior felony conviction as extrinsic evidence and by permitting the State to refer to the conviction as a "less serious offense." We review a trial court’s evidentiary rulings for an abuse of discretion but interpret the Arizona Rules of Evidence de novo. State v. Steinle, 239 Ariz. 415, 417 ¶ 6, 372 P.3d 939 (2016).

[¶ 12] Arizona Rule of Evidence 404(b) provides that evidence of other acts is admissible to show "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." To introduce such evidence, a proper purpose must be shown under Rule 404(b), it must be relevant under Rule 402, the probative value of the evidence must not be substantially outweighed by its potential prejudicial effect under Rule 403, and the court must give a proper limiting instruction if requested under Rule 105. State v. Hulsey, 243 Ariz. 367, 381-82 ¶ 45 (2018); see also State v. Mott, 187 Ariz. 536, 545, 931 P.2d 1046 (1997).

[¶ 13] The trial court did not err in admitting the sanitized evidence. Proof of Acuna’s prior conviction was relevant to prove motive under Rule 404(b), as it was directly related to his statement, immediately before the murder, that he "did prison time for [Edgar]." In addition, the trial court sanitized the conviction by allowing reference only to a "less serious offense."

[¶ 14] The trial court’s order supporting this ruling was brief. It stated that the court conducted "a Rule 403 analysis" and found "that the prejudicial effect of telling the jury" about the specific charge on which Acuna was previously convicted "outweigh[ed] its probative value." Although we encourage trial courts to make their 404(b) findings on the record, the record here nevertheless supports the court’s ruling. See

State v. Jeffers, 135 Ariz. 404, 417, 661 P.2d 1105 (1983) (stating we will affirm a trial court’s Rule 404(b) rulings when "supported by the facts before the court"); cf. State v. Escalante-Orozco, 241 Ariz. 254, 278 ¶ 77, 386 P.3d 798 (2017) ("Before admitting [Rule 404(b) ] evidence, the court must find (1) clear and convincing proof that the defendant committed the act; (2) it is offered for a proper purpose under Rule 404(b); (3) it is relevant to prove that purpose; and (4) its probative value is not substantially outweighed by the danger of unfair prejudice." (emphasis added) ).

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B. Voir Dire Issues

1. Limiting voir dire

[¶ 15] Acuna argues the trial...

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