State Of Ariz. v. Garcia, CR-07-0438-AP.

Citation224 Ariz. 1,226 P.3d 370
Decision Date18 March 2010
Docket NumberNo. CR-07-0438-AP.,CR-07-0438-AP.
PartiesSTATE of Arizona, Appellee,v.Alfredo Lucero GARCIA, Appellant.
CourtSupreme Court of Arizona





Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Amy Pignatella Cain, Assistant Attorney General, Jeffrey A. Zick, Assistant Attorney General, Phoenix, Attorneys for State of Arizona.

David Goldberg, Attorney at Law by David Goldberg, Fort Collins, CO, Attorney for Alfredo Lucero Garcia.


BALES, Justice.

¶ 1 Alfredo Lucero Garcia was convicted of armed robbery and first degree murder and sentenced to death for the murder. We have jurisdiction over this mandatory appeal under Article 6, Section 5(3) of the Arizona Constitution and Arizona Revised Statutes (“A.R.S.”) section 13-4031 (2001).


¶ 2 On the afternoon of May 21, 2002, Daniel Anderson was tending bar at Harley's Club 155. Steven Johnson, the bar's owner, was talking with Anderson. Garcia entered and asked to use the restroom; they directed him toward the rear of the bar, where there was also a back door. Shortly thereafter, Johnson went to the rear of the bar and began fixing a broken ATM. Anderson followed and they continued talking. Johnson kneeled beside the ATM with a stack of $20 bills.

¶ 3 Garcia suddenly burst through the back door and shouted “drop the money.” Directly behind Garcia was James Taylor Sheffield, who was crouching and carrying a gun. Johnson stood, threw the $20 bills on the ground, and said “just get out, get out of here.” Garcia pushed Johnson against the wall. Anderson stood “frozen” until Johnson looked at him and said “get out of here.” Anderson ran into the bar's office, pushed an alarm button, and then escaped. He heard a gunshot before entering the office and heard a scuffling sound followed by a second gunshot as he fled.

¶ 4 Anderson went to another bar and called the police. Upon arriving at Harley's, police found Johnson's body outside the back door and $20 bills scattered nearby. Police also viewed video recordings from bus security cameras on the afternoon of Johnson's murder. The recordings showed Garcia and Sheffield boarding a bus near the crime scene and later getting off at the same stop. The investigation ultimately led police to arrest Garcia on June 1 and Sheffield on June 6, 2002.

¶ 5 Garcia and Sheffield were each indicted on one count of first degree murder and one count of armed robbery; their trials were later severed. On November 13, 2007, a jury found Garcia guilty on both counts. After learning of possible juror misconduct, the trial court empanelled a new jury for the aggravation and penalty phases. The second jury found that Garcia was a major participant in the felony and was recklessly indifferent to Johnson's life. This jury also found two aggravators: Garcia had been previously convicted of a serious offense see A.R.S. § 13-751(F)(2) (Supp.2009); and he had committed first degree murder for pecuniary gain see A.R.S. § 13-751(F)(5). 2 Concluding there was no mitigation sufficiently substantial to call for leniency, the jury determined that Garcia should be sentenced to death.


I. Suggestive Identification

¶ 6 Garcia challenges the trial court's denial of his motion to suppress Anderson's pretrial and in-court identifications. Cf. State v. Dessureault, 104 Ariz. 380, 384, 453 P.2d 951, 955 (1969) (outlining procedures for hearing). In our review, we consider only the evidence presented at the suppression hearing and defer to the trial court's factual findings unless clearly erroneous. State v. Moore, 222 Ariz. 1, 7 ¶ 17, 213 P.3d 150, 156 (2009). The “ultimate question of the constitutionality of a pretrial identification is, however, a mixed question of law and fact,” which we review de novo. Id.

¶ 7 On the day of the shooting, Anderson gave Detective Sandra Rodriguez a detailed description of the first man to enter the bar. Three days later, however, Anderson did not identify Garcia when shown a photographic lineup. That evening, the police department gave local TV stations copies of pictures from the bus security camera showing Garcia and Sheffield. Neither had yet been apprehended. The police contacted Anderson and other witnesses and told them to avoid watching any television coverage of the crime. Anderson, however, later saw the bus photographs in a reward flier that was neither created nor distributed by the police.

¶ 8 On August 31, 2007, the trial court held a Dessureault hearing at which Anderson identified Garcia as one of the men who had entered Harley's. In denying Garcia's motion to suppress this identification and any prospective in-court identification, the trial court concluded that the photographic lineup was not unduly suggestive and that the reward flier had not impermissibly tainted Anderson's identifications because the police were not responsible for the flier.

¶ 9 The trial court did not err in denying Garcia's motion to suppress. Garcia does not challenge the trial court's determination that the photographic lineup was not unduly suggestive. With regard to the flier, the trial court properly first considered whether the State was sufficiently responsible for the reward flier to trigger due process protection. State v. Williams, 166 Ariz. 132, 137, 800 P.2d 1240, 1245 (1987); see also State v. Prion, 203 Ariz. 157, 160 ¶ 14, 52 P.3d 189, 192 (2002). The “due process clause does not preclude every identification that is arguably unreliable; it precludes identification testimony procured by the state through unduly suggestive pretrial procedures.” Williams, 166 Ariz. at 137, 800 P.2d at 1245.

¶ 10 Detective Rodriguez unequivocally testified that the police were not responsible for the reward flier. The flier was not introduced at the hearing, nor did any testimony identify who created the flier; however, Detective Rodriguez speculated that whoever created the flier may have obtained the bus photographs from newspapers or online sources after the police released them to local TV stations.

¶ 11 That some unidentified third party may have used police-released photographs to create and distribute the flier does not constitute state action. See Prion, 203 Ariz. at 160 ¶ 15, 52 P.3d at 192 (holding that photograph of defendant on cover of periodical did not trigger due process concerns because not the result of state action); State v. Nordstrom, 200 Ariz. 229, 241 ¶ 24, 25 P.3d 717, 729 (2001) (holding that when “the media, rather than the State, allegedly tainted [the witness's] identification of the defendant,” the “state action requirement of the Fourteenth Amendment [could not] be established,” making “due process analysis ... inapposite”).

¶ 12 Garcia argues that even in the absence of state action, the trial court should have analyzed the reliability of Anderson's identification under State v. Atwood, 171 Ariz. 576, 603, 832 P.2d 593, 620 (1992) (stating that “unnecessarily suggestive government identification procedures are [not] the sine qua non of due process concerns”). We, however, explicitly rejected this argument in Nordstrom, 200 Ariz. at 241 ¶ 25, 25 P.3d at 729 (disapproving Atwood in this respect and reiterating that [o]nly identification evidence allegedly tainted by state action must meet ... reliability standard[s]).

II. Jury Selection IssuesA. Case-specific Questioning

¶ 13 Garcia argues that by allowing the State to ask prospective jurors questions that reflected case-specific facts, the trial court allowed the State to pack the jury with jurors who would impose the death penalty in his case. We “review a trial court's rulings on voir dire of prospective jurors for abuse of discretion.” State v. Glassel, 211 Ariz. 33, 45 ¶ 36, 116 P.3d 1193, 1205 (2005).

¶ 14 During voir dire for the first jury, the State said that there would be a question whether Garcia was the actual shooter and asked some prospective jurors if they could consider imposing a death sentence on a non-shooter. After the trial court excluded two prospective jurors who indicated that they might not be able to consider a death sentence in these circumstances, Garcia moved to preclude the State from asking jurors if the specific facts of Garcia's case would prevent them from imposing death. Although the State said it would ask questions that did not directly involve the facts of the case, it subsequently presented prospective jurors with several hypothetical situations that closely mirrored the facts of Garcia's case.

¶ 15 In reviewing the qualification of jurors in capital cases, we have rejected efforts by defense counsel to elicit how prospective jurors will vote based on specific facts. See State v. Smith, 215 Ariz. 221, 231 ¶ 42, 159 P.3d 531, 541 (2007) (concluding that trial court did not abuse its discretion by refusing defendant's request to ask jurors if they would automatically impose death upon finding specific aggravators); State v. Johnson, 212 Ariz. 425, 434-35 ¶¶ 29-35, 133 P.3d 735, 744-45 (2006) (concluding that trial court did not abuse its discretion by refusing defendant's request to ask jurors whether they regarded specific factors as mitigation). Garcia argues that the trial court here impermissibly allowed the State to question jurors in a manner contrary to Smith and Johnson.

¶ 16 The trial court did not abuse its discretion in allowing the State to ask prospective jurors if they could consider imposing a death sentence if a defendant had not actually shot the victim. Given the nature of this case, these questions properly probed beyond abstract juror views on capital punishment. See United States v. Fell, 372 F.Supp.2d 766, 769 (D.Vt.2005) (noting that in some cases, “highly general questions may not be adequate to detect specific forms of juror bias,” therefore, “the partie...

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