State v. Martinez

• Citation: 282 P.3d 409,230 Ariz. 208,641 Ariz. Adv. Rep. 27
• Decision Date: 17 August 2012
• Docket Number: No. CR–10–0177–AP.,CR–10–0177–AP.
• Parties: STATE of Arizona, Appellee, v. Gilbert MARTINEZ, Appellant.
• Court: Supreme Court of Arizona

230 Ariz. 208

282 P.3d 409

641 Ariz. Adv. Rep. 27

STATE of Arizona, Appellee,

v.Gilbert MARTINEZ, Appellant.

No. CR–10–0177–AP.

Supreme Court of Arizona.

Aug. 17, 2012.

Thomas C. Horne, Arizona Attorney General by Kent E. Cattani, Division Chief Counsel, Jeffrey A. Zick, Section Chief Counsel, Jon G. Anderson, Assistant Attorney General, Criminal Appeals/Capital Litigation Section, Phoenix, Attorneys for State of Arizona.

Droban & Company, PC by Kerrie M. Droban, Anthem, Attorney for Gilbert Martinez.

OPINION

BRUTINEL, Justice.

¶ 1 A jury found Gilbert Martinez guilty of one count of first degree burglary, four counts of aggravated assault, four counts of kidnapping, one count of theft, and one count of first degree murder. After a mistrial in the penalty phase, a second jury determined he should be sentenced to death. We have jurisdiction over this automatic appeal under Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 13–4031 (2010).

I. FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 On March 31, 2006, Betty L.'s daughters, Karen B. and Colleen J., and their husbands, Forest B. and Vern J., were visiting Betty and her husband, Laurel L., at their home in Sun City.¹ Martinez and Robert Arbolida watched the home, planning to burglarize it. They left to get a gun, returning to the house after its six occupants had gone to bed.

¶ 3 Martinez broke a patio door at the back of the house, went inside, and let Arbolida in through the kitchen door. Hearing a loud noise, Betty and Laurel went to investigate. In the hallway, they encountered the two intruders, who were wearing masks and gloves. Martinez and Arbolida pushed Betty and Laurel into the room where Karen and Forest were staying. Martinez threatened them, yelling profanities and telling them to cooperate or he would kill them. When Laurel moved too slowly because of his age and asthma, Martinez became frustrated and pushed him. When Forest attempted to help Laurel, Martinez pistol-whipped Forest, permanently injuring his eye. Martinez then directed Arbolida to bind the four victims with zip ties. Apparently having seen a third woman earlier when casing the house, Martinez said to Arbolida, “Let's go find the other bitch.”

¶ 4 Colleen and Vern heard the commotion and Martinez's statement from their bedroom. Vern pushed Colleen into the closet and closed the door. Vern, weaponless, went to the bedroom door to stand between his wife and the intruders.

¶ 5 Martinez met Vern in the hallway, a scuffle ensued, and Martinez fatally shot Vern. Martinez and Arbolida then fled with various items belonging to the victims. They went to Martinez's sister's house, where they cleaned blood off themselves and divided the stolen property.

¶ 6 Martinez was later arrested and indicted on twenty-three counts, including felony murder, stemming from this burglary and six other burglaries and robberies in the same area. The State sought the death penalty, alleging two aggravating circumstances: Martinez previously had been convicted of a serious offense, A.R.S. § 13–751(F)(2), and had committed the murder for pecuniary gain, § 13–751(F)(5).

¶ 7 The trial court severed the charges by occurrence and, after the State dismissed charges related to one of the burglaries, ordered six separate trials. Martinez was acquitted on one burglary (“the Krustenstjerna burglary”), but found guilty on all other charges.

¶ 8 The jury in this case found Martinez guilty of eleven charges, including felony murder, relating to the burglary of Betty and Laurel's home. The jury then found both alleged aggravating circumstances proven beyond a reasonable doubt. It also found that Martinez actually killed Vern and was a major participant in his murder. The jury, however, hung in the penalty phase, and the trial court declared a mistrial.

¶ 9 Following a second penalty-phase trial, a new jury determined Martinez should be sentenced to death. The court also sentenced him to 124 years' imprisonment on the non-capital charges.

II. ISSUES ON APPEAL

A. Denial of motions to strike potential jurors

¶ 10 Martinez challenges the trial court's denial of his motions to strike prospective jurors 2, 4, 15, 27, 44, and 59 in the first trial and jurors 4, 10, and 105 in the second penalty phase trial.² Because none of those jurors served on either of the juries that decided this case, “any error by the trial judge in refusing to strike them [is] not reversible error absent prejudice to [Martinez].” State v. Moore, 222 Ariz. 1, 18 ¶ 99, 213 P.3d 150, 167 (2009). Martinez is not entitled to relief because he has not alleged or shown any prejudice, and “[n]o evidence suggests that the sentencing jury was not fair and impartial.” Id.; see also State v. Martinez, 218 Ariz. 421, 429 ¶ 35, 189 P.3d 348, 356 (2008) (“We need not address this argument because the juror in question was not seated and [the defendant] makes no claim that any of the jurors who decided his case should have been struck for cause.”).

B. Admission of bag with ammunition

¶ 11 Martinez asserts that the trial court, in the guilt phase, abused its discretion by admitting exhibit 344, a brown bag and its contents, and denying his subsequent motion for a mistrial.

¶ 12 A detective testified that when officers executed a search warrant at Martinez's home, they found in the garage a brown bag containing a gun case, a 9 mm handgun magazine, six spent 9 mm casings, two boxes of .357 Magnum ammunition, a box of .38 Special ammunition, an empty .22 caliber ammunition box, loose .22 caliber rounds, a live 9 mm cartridge, an empty knife scabbard, a pair of brown gloves, and ear plugs.

¶ 13 During the detective's testimony, the State offered into evidence the bag and its contents, along with zip ties, labeled exhibit 345, also found in Martinez's garage. Martinez objected only to the admission of the zip ties. The court admitted both exhibits. The State then had the detective remove each item from the bag and describe it. Martinez objected on relevance grounds to the bag's contents. The trial court overruled his objection, noting that the bag had already been admitted. After a break, Martinez moved for a mistrial “based on the prejudice of those items in that [bag].” The court denied the motion, finding the contents of the bag “pretty innocuous.”

¶ 14 Because Martinez did not object before the exhibit was admitted into evidence, we review for fundamental error.³State v. Henderson, 210 Ariz. 561, 567 ¶ 19, 115 P.3d 601, 607 (2005); seeAriz. R. Evid. 103(a)(1). To prevail under this standard, Martinez must first establish that an error occurred, then show that the error was fundamental in nature and caused prejudice. State v. Hargrave, 225 Ariz. 1, 8 ¶ 13, 234 P.3d 569, 576 (2010).

¶ 15 Evidence of ammunition other than 9 mm, the caliber used to kill Vern, was irrelevant and should not have been admitted. But even if the trial court erred in admitting the contents of the bag, Martinez has not shown prejudice. As the trial court stated, in context the evidence was innocuous, and the State never suggested that these items were connected to the crime or that they confirmed Martinez as the killer. See United States v. King, 254 F.3d 1098, 1101–02 (D.C.Cir.2001) (finding admission of evidence that defendant possessed a knife harmless because it was “tangential to the Government's case”).

C. Admission of nineteen prior offenses to prove (F)(2) aggravator

¶ 16 Martinez argues that the trial court erred in allowing the State to use nineteen prior serious felony convictions to prove the (F)(2) aggravator, contending this evidence was unduly prejudicial and denied him due process. We review a trial court's admission of evidence in the aggravation phase for an abuse of discretion. See State v. Tucker, 215 Ariz. 298, 313 ¶ 46, 314–15 ¶ 58, 160 P.3d 177, 192, 193–94 (2007).

¶ 17 Before trial, the State noticed its intent to prove the (F)(2) aggravating circumstance by using Martinez's convictions from the five prior trials, a burglary conviction from 1999, and the non-murder convictions arising from the burglary of Betty and Laurel's home. Martinez filed a “Motion to Preclude Extraneous (F)(2) Aggravator Evidence,” arguing that evidence of any serious offenses extraneous to those that occurred with the murder would be unduly prejudicial and cumulative and thus barred by Arizona Rule of Evidence 403. The trial court denied the motion.

¶ 18 The (F)(2) aggravator requires proof beyond a reasonable doubt that:

The defendant has been or was previously convicted of a serious offense, whether preparatory or completed. Convictions for serious offenses committed on the same occasion as the homicide, or not committed on the same occasion but consolidated for trial with the homicide, shall be treated as a serious offense under this paragraph.

§ 13–751(F)(2). Although we have never squarely addressed whether to limit the number of prior convictions the state can use to prove this aggravating circumstance, we have upheld without comment (F)(2) findings based on multiple prior convictions. See, e.g., State v. Phillips, 202 Ariz. 427, 438–39 ¶¶ 56–57, 46 P.3d 1048, 1059–60 (2002) (finding (F)(2) aggravator supported by evidence of twenty-seven prior convictions).

¶ 19 The trial court correctly observed that the “decision to offer evidence of aggravation or not offer such evidence is the responsibility of the prosecutor.” State v. Murphy, 113 Ariz. 416, 418, 555 P.2d 1110, 1112 (1976). But because § 13–751(B) provides that the Arizona Rules of Evidence govern the aggravation phase, the trial court must exclude evidence “if its probative value is substantially outweighed by a danger of ... unfair prejudice.” Ariz. R. Evid. 403. Therefore, the pertinent inquiry is whether the probative value of the evidence of Martinez's nineteen other convictions was substantially outweighed by the danger of unfair prejudice or other factors identified in Rule 403.

¶ 20 Martinez argues that evidence...