State v. Barraza

• Decision Date: 20 November 2007
• Docket Number: No. 1 CA-CR 06-0283.,1 CA-CR 06-0283.
• Parties: STATE of Arizona, Appellee, v. Mayra Isabel BARRAZA, Appellant.
• Court: Arizona Court of Appeals

170 P.3d 293

217 Ariz. 44

STATE of Arizona, Appellee, v. Mayra Isabel BARRAZA, Appellant.

No. 1 CA-CR 06-0283.

Court of Appeals of Arizona, Division 1, Department B.

November 20, 2007.

Terry Goddard, Attorney General by Randall M. Howe, Chief Counsel, Criminal Appeals Section and John L. Saccoman, Assistant Attorney General, Phoenix, Attorneys for Appellee.

James J. Haas, Maricopa County Public Defender by Sharmila Roy, Deputy Public Defender, Phoenix, Attorneys for Appellant.

BARKER, Judge.

¶ 1 In a capital murder case, the capital aggravator of "especially heinous, cruel or depraved" under Arizona Revised Statutes ("A.R.S.") section 13-703(F)(6) (Supp.2006) may only be invoked in compliance with the factors set forth in State v. Murdaugh, 209 Ariz. 19, 31, ¶ 59, 97 P.3d 844, 856 (2004). The primary issue in this opinion is whether compliance with the Murdaugh factors is also required in a non-capital homicide for there to be a valid non-capital aggravator of "especially heinous, cruel or depraved" under A.R.S. § 13-702(C)(5).

¶ 2 We hold that the Murdaugh factors may serve as a guide in non-capital cases under § 13-702(C)(5), but that strict compliance with them is neither appropriate nor required. Accordingly, we affirm.

I.

¶ 3 Mayra Isabel Barraza ("Barraza") appeals from the trial court's imposition of a twenty-two year aggravated sentence for her conviction of second degree murder. On May 4, 2001, Gregorio Espinoza ("Espinoza"), a forty-seven-year-old landscaper, picked up Barraza, seventeen years old at the time, for a date at approximately 8:30 p.m. Barraza met Espinoza when Espinoza did landscaping work for the neighbors of a family Barraza babysat for. Barraza claimed that Espinoza did not have any romantic interest in her and that he knew she was homosexual. When Espinoza picked Barraza up on May 4, 2001, Espinoza stopped to purchase beer and then took her back to his house so that he could take a shower.

¶ 4 While at Espinoza's house, Barraza stabbed Espinoza sixty times with a knife. Espinoza, who was five feet, two inches in height and weighed 139 pounds, bled to death in "a matter of minutes." The wounds covered Espinoza's chest, back, and neck, in addition to defensive wounds on the hands and forearms.¹ Espinoza's brother discovered the body and called the police.

¶ 5 When the police arrived at Espinoza's house, they found a bloody towel used to wipe something, diluted blood in the sink, and a bloody footprint and handprint later identified as Barraza's. The police also found a piece of paper in Espinoza's truck with Barraza's name, address, and phone number.

¶ 6 The police subsequently contacted Barraza. Barraza denied ever having been at Espinoza's house and claimed that she was with friends on May 4, 2001. The police attempted to verify her story, but it proved to be false. During a third interview with police, which took place May 11, 2001, Barraza admitted to being with Espinoza on May 4, 2001. Barraza claimed that, although she is homosexual, she "plays men for money." Barraza admitted, "I take their money and stuff. . . . Mostly they take me shopping, and they pay for everything that I buy, and so I just use them for rides." She had asked Espinoza for money as well. Barraza explained that on May 4, 2001, when she was at Espinoza's house and he claimed to be getting in the shower, Barraza went in the master bedroom. Espinoza, who was naked, then came at her, pushed her on the bed, and sexually assaulted her. She attempted to fight him off and was able to reach her purse, which held a knife that she carried for protection. She claimed that she did not know how many times she stabbed him. Barraza then remembered going to the bathroom and washing her hands. She took Espinoza's keys and left the house. She attempted to take his truck, but it would not start. She began walking home, then later got a ride from a stranger.

¶ 7 The police also interviewed S. Gonzales, a friend of Barraza. Gonzales testified that approximately one week before Espinoza's murder she was watching television with Barraza when Barraza, commenting on what they saw on television, said she wanted to "kiss a guy and slit his throat." Barraza pulled out a knife and showed it to Gonzales. Gonzales testified that she thought Barraza was joking, but that Barraza said, "[w]atch, I'll do it. I'm going to do it, watch." Gonzales said that Barraza wanted to "tell them she could suck on their neck and then slice their throats and take their money." Gonzales took the knife from Barraza because, even though she "took it as a joke," she wanted to "make[] sure." Both Gonzales and Barraza forgot about the knife.

¶ 8 Barraza was charged with one count of first degree murder. A jury found Barraza guilty of the lesser-included offense of second degree murder. At Barraza's sentencing hearing, held June 21, 2002, the trial court found as mitigating factors Barraza's age and lack of prior criminal involvement. The court also found aggravating factors, including that it was an "egregious, brutal, calculated thrill killing that has caused substantial emotional harm." The court believed that it was necessary "to protect society from what the Court believes to be a dangerous and disturbed young woman," and accordingly sentenced her to the maximum aggravated term of twenty-two years imprisonment.

¶ 9 On July 2, 2002, Barraza timely appealed her conviction to the Court of Appeals. This court affirmed Barraza's conviction. State v. Barraza, 209 Ariz. 441, 104 P.3d 172 (App.2005). However, we simultaneously filed a memorandum decision in which we vacated Barraza's sentence as it did not comply with the sentencing requirements established in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). State v. Barraza, 1 CA-CR 02-0591 (Ariz. App. Jan. 11, 2005) (mem.decision). Accordingly, we remanded for resentencing.

¶ 10 On July 7, 2005, the State filed an allegation of aggravating circumstances, including:

[1.] The offense(s) involved the use, threatened use or possession of a deadly weapon or dangerous instrument during the commission of the crime, specifically a knife.

[2.] The defendant committed the offense(s) in an especially heinous, cruel, or depraved manner.

[3.] The offense(s) caused physical, emotional or financial harm to the victim or, if the victim died as a result of the conduct of the defendant, caused emotional or financial harm to the victim's immediate family.

A jury trial was held on February 7, 2006 regarding Barraza's resentencing and the alleged aggravating factors. The jury was presented with a large portion of the testimony presented at Barraza's original trial. Although Gonzales did not testify at the resentencing, Barraza admitted at the resentencing that, while watching television with friends before the murder, she showed them a knife and stated that she wanted to stab someone. At the close of the evidence, the jury found that all three aggravating factors had been proven beyond a reasonable doubt. The court subsequently sentenced her to the aggravated term of twenty-two years of imprisonment. Barraza timely filed a notice of appeal from the sentence. This court has jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) (2003) and 13-4033(A) (2001).

II.

¶ 11 We address in this opinion two issues² Barraza raises on appeal: 1) whether there was sufficient evidence to show that the murder was especially heinous, cruel, or depraved;³ and 2) whether the jury instruction regarding heinousness, cruelty, or depravity was error. We address each argument below.

III.

A.

¶ 12 Barraza argues that there was insufficient evidence to find that the murder was especially heinous, cruel, or depraved because the evidence did not show that Barraza relished the murder, needlessly mutilated Espinoza, or inflicted gratuitous violence on Espinoza. Barraza relies on the factors enumerated in State v. Murdaugh, 209 Ariz. 19, 31, ¶ 59, 97 P.3d 844, 856 (2004), which describe when heinousness, cruelty, or depravity exists in capital cases. Section 13-703(F)(6) lists a finding that "[t]he defendant committed the offense in an especially heinous, cruel or depraved manner" as an aggravating circumstance which may be used to raise a first degree murder sentence to the death penalty. Similarly, A.R.S. § 13-702(C)(5) provides for the "[e]specially heinous, cruel or depraved manner in which the offense was committed" to be considered as an aggravating circumstance in non-capital offenses. Although the statutes are worded almost identically, their application has been disparate.

¶ 13 In Murdaugh, the Arizona Supreme Court enumerated five factors that must be considered when determining whether a capital offense was committed with heinousness or depravity pursuant to A.R.S. § 13-703(F)(6):

1) whether the defendant relished the murder; 2) whether the defendant inflicted gratuitous violence on the victim; 3) whether the defendant needlessly mutilated the victim; 4) the senselessness of the crime; and 5) the helplessness of the victim.

209 Ariz. at 31, ¶ 59, 97 P.3d at 856 (derived from State v. Sansing, 206 Ariz. 232, 237, ¶ 17, 77 P.3d 30, 35 (2003) and State v. Gretzler, 135 Ariz. 42, 52, 659 P.2d 1, 11 (1983)). Barraza asserts error based on an insufficiency of evidence regarding the first three Murdaugh factors. However, a finding of heinousness, cruelty, or depravity under A.R.S. § 13-702(C)(5) for non-capital offenses does not require compliance with Murdaugh, which was a capital case dealing with 703(F)(6) rather than a non-capital case dealing with 702(C)(5). Our cases show that a jury's finding of heinousness, cruelty, or depravity as a non-capital aggravating circumstance may be established without compliance with Murdaugh. See, e.g., State v. Bean, 174 Ariz. 544, 548, 851 P.2d 843, 847 (App.1992) (affirming an aggravated sentence for custodial interference on the grounds that the crime was cruel and...