State v. Bush

• Citation: 423 P.3d 370
• Decision Date: 16 August 2018
• Docket Number: No. CR-11-0107-AP,CR-11-0107-AP
• Parties: STATE of Arizona, Appellee, v. Jason Eugene BUSH, Appellant.
• Court: Supreme Court of Arizona

423 P.3d 370

STATE of Arizona, Appellee,

v.Jason Eugene BUSH, Appellant.

No. CR-11-0107-AP

Supreme Court of Arizona.

Filed August 16, 2018

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

John L. Saccoman (argued), Law Office of John L. Saccoman, Phoenix; and Brent E. Graham, Law Office of Brent E. Graham, PLLC, Glendale, Attorneys for Jason Eugene Bush

JUSTICE PELANDER authored the opinion of the Court, in which VICE CHIEF JUSTICE BRUTINEL, and JUSTICES TIMMER, BOLICK, and GOULD joined. CHIEF JUSTICE BALES authored a separate opinion concurring in part. JUDGE WINTHROP authored a separate opinion concurring in part and dissenting in part.^*

JUSTICE PELANDER, opinion of the Court:

¶1 This automatic appeal arises from Jason Eugene Bush’s convictions and death sentences for murdering nine-year-old Brisenia Flores and her father, Raul "Junior" Flores, in their Arivaca home. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution and A.R.S. §§ 13-4031 and 13-4033(A)(1).

BACKGROUND

¶2 The facts largely mirror those in State v. Forde , in which this Court affirmed the first degree murder convictions and death sentences of Shawna Forde, Bush’s accomplice and the "self-proclaimed leader of a private ‘minuteman’ border monitoring group" in which Bush participated. 233 Ariz. 543, 552 ¶ 2, 315 P.3d 1200, 1209 (2014). On the evening of May 29, 2009, Junior Flores, his wife, Gina Gonzales, and their daughter, Brisenia, were at their home while the couple’s other daughter spent the night with a relative. After Junior and Gina went to bed, and as Brisenia slept on the living room couch, Junior woke Gina to tell her law enforcement officers were at their door. Gina rose from bed and joined Brisenia, who was still asleep on the couch, while Junior went to the door.

¶3 Gina heard two voices, a male and female, order Junior to open the door so they could enter to "take a look." Junior complied, and a man and woman entered the Flores’s home. The man was tall, wore camouflage and black face paint, and carried a handgun and a longer gun covered with duct tape. Junior pressed the intruders for identification and asked the man why one gun was covered in duct tape. The man responded, "Don't take this personally but this bullet has your name on it," and shot Junior in the chest. The man then turned the handgun on Gina and shot her in the shoulder and thigh. After Gina fell to the floor, the man focused again on Junior, who was yelling, "Stop shooting my wife," and killed him with additional shots.

¶4 Lying on the floor feigning death, Gina heard two more men, both Spanish-speaking, enter the home. Brisenia awoke, began crying, and asked the armed man why he shot her father. He told Brisenia everything would be okay, that nobody would hurt her, and asked about her sister’s whereabouts. Brisenia said her sister was spending the night with a relative. Gina then heard the man load his gun while Brisenia repeatedly begged, "Please don't shoot me." Despite her pleas, the man fatally shot Brisenia twice in the face at point-blank range.

¶5 After hearing the female intruder tell the group to leave, Gina called 911 and attempted to aid Brisenia, who was shaking and struggling to breathe. The female intruder then returned, saw that Gina was still alive, and ordered someone to "go back and finish her off." Gina immediately rushed to the kitchen, grabbed a gun Junior kept there, and collapsed on the kitchen floor. Meanwhile, the tall man with black face paint reentered the home and began shooting at Gina, who returned fire. Gina heard the man cry out in pain before leaving the home. When another man entered, Gina yelled, "Get the hell out," and "That is enough," which prompted the man to leave. Gina returned to the phone, which was still connected to the 911 dispatcher, and waited for police.

¶6 Law enforcement officers identified Albert Gaxiola as a suspect in the murders and, after obtaining a search warrant, discovered Bush’s DNA, fingerprints, and other incriminating items at Gaxiola’s home. Officers located Bush ten days later at the residence he shared with his girlfriend. Bush, who had been wounded

by Gina’s gunfire, told his girlfriend that he had been shot in the leg while working for the military as an undercover immigration operative.

¶7 After arresting Bush on June 11, 2009, officers questioned him at the Mohave County Sheriff’s Department for approximately four hours. Though initially denying any involvement in the murders, Bush eventually confessed to shooting and killing Junior and Brisenia, claiming that his accomplices threatened to kill him and his family if he did not do so. In addition to making numerous incriminating statements, Bush drew a diagram of the Flores’s home and marked where each victim was when he shot them. The State charged Bush with two counts of first degree murder, A.R.S. § 13-1105, attempted first degree murder, A.R.S. § 13-1001, two counts of aggravated assault, A.R.S. § 13-1204, first degree burglary, A.R.S. § 13-1508, armed robbery, A.R.S. § 13-1904, and aggravated robbery, A.R.S. § 13-1903.

¶8 A jury found Bush guilty on all counts. For the murder convictions, the jury found three aggravating circumstances: Bush was convicted of a serious offense, committed multiple homicides on the same occasion, and murdered a person under the age of fifteen. See A.R.S. § 13-751(F)(2), (8), (9). Considering those factors and the mitigation evidence, the jury sentenced Bush to death for each murder. For the non-capital convictions, the trial court sentenced Bush to prison terms totaling seventy-eight years.

DISCUSSION

A. Pretrial Motions for a Change of Venue and Continuance

¶9 Bush contends the trial court abused its discretion in denying his motion for a change of venue or, alternatively, a continuance, which he argues was necessary because of outrageous and extensive pretrial publicity about the case. We review for abuse of discretion a trial court’s denial of a motion for a change of venue or continuance. Forde , 233 Ariz. at 553 ¶ 11, 315 P.3d at 1210 ; State v. Dixon , 226 Ariz. 545, 555 ¶ 53, 250 P.3d 1174, 1184 (2011).

¶10 Bush’s motion, filed a week before his trial, cited numerous internet articles allegedly containing "an overwhelming amount of prejudicial and inflammatory statements" about him. In denying the motion, the trial court reasoned that Bush had not shown he was entitled to a presumption of prejudice and could not show actual prejudice because the jury had not yet been selected. The court indicated it would explore Bush’s concerns if the voir dire process failed to "yield an impartial jury." Bush unsuccessfully moved for a mistrial after jury selection but did not renew his motions for a change of venue or continuance.

¶11 Our review of pretrial publicity issues "entails a two-step inquiry to decide ‘whether, under the totality of the circumstances, the publicity attendant to [the] defendant’s trial was so pervasive that it caused the proceedings to be fundamentally unfair.’ " Forde , 233 Ariz. at 553 ¶ 12, 315 P.3d at 1210 (quoting State v. Cruz , 218 Ariz. 149, 156 ¶ 13, 181 P.3d 196, 203 (2008) ). The first inquiry is whether "the publicity so pervaded the proceedings that the trial court erred by not presuming prejudice." Id. at 554 ¶ 12, 315 P.3d at 1211 ; accord Cruz , 218 Ariz. at 156 ¶ 14, 181 P.3d at 203. If the trial court properly declined to presume prejudice, the next inquiry is "whether the defendant showed actual prejudice." Forde , 233 Ariz. at 554 ¶ 12, 315 P.3d at 1211 ; accord Cruz , 218 Ariz. at 156 ¶ 14, 181 P.3d at 203. We find no error under either inquiry.

¶12 Courts "rarely presume prejudice due to outrageous pretrial publicity," State v. Bible , 175 Ariz. 549, 564, 858 P.2d 1152, 1167 (1993), because of the defendant’s extremely heavy burden to show "the publicity [is] ‘so unfair, so prejudicial, and so pervasive that [the trial court] cannot give any credibility to the jurors' answers during voir dire,’ " Cruz , 218 Ariz. at 157 ¶ 15, 181 P.3d at 204 (quoting State v. Bolton , 182 Ariz. 290, 300, 896 P.2d 830, 840 (1995) ); accord Bible , 175 Ariz. at 564–65, 858 P.2d at 1167–68. "In other words, ... the ‘media coverage [must be] so extensive or outrageous that it permeate[s] the proceedings or create[s] a ‘carnival-like’ atmosphere,’ " Cruz , 218 Ariz. at 157 ¶ 15, 181 P.3d at 204 (quoting State v. Atwood , 171 Ariz. 576, 631, 832 P.2d 593, 648 (1992) ), devoid of the "fundamental and essential element[s] of ... ‘dignity, order, and decorum,’ " Bible , 175 Ariz. at 567, 858 P.2d at 1170 (quoting Illinois v. Allen , 397 U.S. 337, 343, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) ).

¶13 Bush argues that pretrial publicity created the prohibited carnival-like atmosphere in his proceedings. But in Forde , which involved the same murders underlying this case, we noted that "[m]ost of the publicity occurred in the immediate aftermath of the crimes—approximately eighteen months before [Forde’s] trial," and "most news accounts were essentially factual." 233 Ariz. at 554 ¶ 14, 315 P.3d at 1211 ; see also State v. Kiles , 222 Ariz. 25, 35–36 ¶¶ 46–50, 213 P.3d 174, 184–85 (2009) (change of venue denied despite ten years of media coverage).

¶14 Questionable or allegedly inaccurate publicity alone is not enough to presume prejudice, particularly when, as here, the "information in the great bulk of the news reports" was "largely factual." Bible , 175 Ariz. at 564, 858 P.2d at 1167. Nor does a presumption of prejudice arise merely because the media published an interview to which Bush agreed, or other articles stating that he confessed to the murders or discussing facts adduced during Forde’s trial that implicated Bush in the murders. In short, Bush has not shown that "the media successfully influenc[ed] law enforcement officers[,] ... court per...