State v. Canez

Decision Date14 February 2002
Docket NumberNo. CR 98-0488-AP.,CR 98-0488-AP.
Citation42 P.3d 564,202 Ariz. 133
PartiesSTATE of Arizona, Appellee, v. Arturo Anda CAÑEZ, Appellant.
CourtArizona Supreme Court

Janet A. Napolitano, Attorney General by Paul J. McMurdie, Former Chief Counsel, Criminal Appeals Section, Kent E. Cattani, Chief Counsel, Capital Litigation Section, Joseph T. Maziarz, Assistant Attorney General, Criminal Appeals Section, Phoenix, Attorneys for Appellee.

Thomas J. Phalen and Tara K. Allen, Phoenix, Attorneys for Appellant.

OPINION

JONES, Chief Justice.

¶ 1 A jury convicted Arturo Anda Cañez of first degree felony murder, first degree burglary, and two counts of armed robbery. The trial court's imposition of the death penalty on the murder conviction resulted in this direct appeal pursuant to Rules 26.15 and 31.2(b) of the Arizona Rules of Criminal Procedure. We have jurisdiction pursuant to article VI, section 5(3) of the Arizona Constitution and section 13-4031 of the Arizona Revised Statutes.

FACTS

¶ 2 Near midnight on February 22, 1996, a neighbor saw a truck matching the description of Cañez' at the Casa Grande home of 77-year-old Franklin Joseph Hale. The driver spoke amiably with Hale for about five minutes. When the truck left, the neighbor heard its gears grinding.

¶ 3 The following night, sometime after 7:00 p.m., Cañez drove his truck into the parking lot of a bar in Casa Grande. Jerry Livingston lived in a camper in the parking lot, and he and Donna Thacker were sitting outside the camper drinking beer. Cañez joined them and asked if they wanted to get some crack cocaine. As they sat drinking and smoking, Cañez used a flip-top lighter with a marijuana leaf printed or etched on it to light his cigarette. Kathy Shepard soon joined the group. They put their money together, and Cañez and Shepard left to buy cocaine. The two bought $20 of crack cocaine and smoked it between themselves. Cañez used the marijuana leaf lighter to smoke the cocaine. After smoking all of the cocaine, Shepard had Cañez drop her off two blocks from the bar and instructed Cañez to tell Livingston that they had "gotten ripped off" to "cover up" for not sharing the cocaine with him. By the time Shepard walked back to Livingston's camper, Cañez was already there. Shepard told Livingston that they "got burnt."

¶ 4 Cañez, Thacker, and Shepard then left the bar in Cañez' truck. They bought more cocaine and drove to a barn frequented by drug users and the homeless, arriving between 9:00 and 10:00 p.m. There they met co-defendant Brian Patterson who was living in the barn as its caretaker. Patterson recognized Thacker and Shepard from having previously used drugs with them in the barn. Cañez introduced himself to Patterson as Anda. The four of them divided the cocaine and smoked it.

¶ 5 Afterward, Cañez told Shepard that he "was going to do a job" and get some money from an old man toward Selma Highway. He suggested that Shepard "turn a trick" with the man while Cañez took his money and guns. Shepard declined but Cañez persisted. Cañez then suggested that they lure Patterson out of the barn and take his wallet from under his bed. Again Shepard refused.

¶ 6 Shepard drove Thacker and Cañez in Cañez' truck to get more cocaine. They bought another $40 worth, returned to the barn, and smoked it. Cañez, Thacker, and Shepard again left to buy cocaine. Shepard had become leery of Cañez and his insistence on going to the old man's house and decided to get away from him. With the money, Shepard got out of the truck to buy the drugs, hinting that Thacker should come with her, but Thacker did not. At the drug house Shepard met a man she knew and left with him. Cañez wanted his money back, but Thacker said Shepard would not be coming back. Cañez dropped Thacker off at her friend's trailer and returned alone to the barn.

¶ 7 Upon his return, Cañez told Patterson they had been ripped off and asked where they might find the women. They got in the truck to look for them at the bar. On the way, Cañez asked Patterson whether he could fight and he said no. Patterson was then 23 years old, 6' 1", and weighed 125 pounds. He suffered from walking pneumonia, drug use, and heart problems, for which he had undergone seven operations and required a pacemaker. They found neither Thacker nor Shepard at the bar. Cañez then drove to Hale's house, grinding the gears as he went. En route, Cañez spoke of beating someone up and taking his money. When they arrived, Patterson remarked that it was "too broad a view," but Cañez said, "Don't worry. This guy lives by himself and there's nobody around who will notice."

¶ 8 Hale answered the door and Cañez said, "Hey, Pops, you got some more money, another twenty." Patterson had the impression they knew each other. Cañez pushed Hale back into the house and closed the door behind him. From outside, Patterson could hear scraping and thumping. Cañez opened the door and said, "It's taken care of, come on in." Patterson stepped over Hale's "squirming" body as he entered the house. At Cañez' direction, Patterson put Hale's television in the truck. On his way back he saw Cañez twisting a white cloth around Hale's neck. Patterson turned and walked away, but Cañez came to the door and threatened him to "get back in the house." When Patterson went back inside, Hale was still moving on the floor.

¶ 9 Cañez and Patterson emptied the contents of a wallet onto a chair. On a stand next to the chair, Patterson saw a closed folding knife. Cañez sent Patterson into the bedroom to look for guns. From the bedroom doorway, Patterson saw Cañez strike Hale in the head several times with a frying pan. Patterson saw a glove on the hand wielding the frying pan but did not see whether the other hand wore a glove. Hale was still moving and appeared to Patterson to be semi-conscious. Cañez and Patterson carried out a stereo and speakers. On his way out for the last time, Patterson saw Hale moving his right arm toward his head as Patterson stepped over him. After putting the stereo in the truck, Cañez went back into the house for two or three minutes and came out with an electric razor case. They left Hale's house with the truck's lights off. Again, Cañez had trouble shifting gears.

¶ 10 At about 12:45 a.m. a neighbor saw a truck backing out of Hale's driveway with its lights off. There appeared to be two people in the truck. The truck drove to the end of the street and hesitated at the stop sign for 30 seconds before turning the lights on and speeding away. At trial, the neighbor identified the truck as Cañez'.

¶ 11 Marco and Marta Ramirez testified that Cañez, whom they knew by sight from the neighborhood, came to their trailer between midnight and 1:30 a.m. Cañez offered to sell them a television and stereo. Cañez' clothes were wet, dark, and dirty, which he attributed to his having been in a fight. Cañez asked for $50 for the property but accepted $20 because he "needed the money."

¶ 12 In the truck after the sale, Patterson said, "He better not die." Cañez replied, "He ain't gonna die. He ain't gonna die. He ain't gonna die." Cañez then drove around the block from the Ramirez residence and parked in front of a trailer he said belonged to his cousin. He went inside with the electric razor and came out 15 minutes later, cleaned up and wearing different clothes. They then drove around Casa Grande in a fruitless search for cocaine. Cañez picked up a woman Patterson did not know and then dropped Patterson off near the barn. Half an hour later, Cañez and the woman came back to the barn. Cañez asked whether Patterson had seen his lighter, but Patterson said he had not. After smoking more cocaine, Cañez and the woman left. ¶ 13 In the early afternoon of the following day, Hale's son discovered the body. The medical examiner determined that Hale died as a combined result of 21 blunt force injuries and six stab wounds. That afternoon, Patterson learned from his friend, Justin McIntosh, whom he had told of the robbery, that the victim had died. The two went to a pay phone where Patterson called a mental counseling service and told the counselor that he had been involved in a homicide. The counseling service called the police and they met Patterson and McIntosh at the pay phone. Patterson agreed to go to the station and make a statement.

¶ 14 Initially, Patterson denied witnessing the assault or taking drugs, but later admitted to seeing some of the beating and carrying out the speakers. He agreed to show the detectives where he had been with Cañez the night before. Patterson took the detectives to Hale's house, the Ramirez trailer, the barn, and the trailer where Cañez had changed clothes (which turned out to be Cañez' residence). He also identified Cañez' truck parked in front of the trailer where Cañez had changed.

¶ 15 On March 7, 1996, a grand jury indicted Arturo Anda Cañez and Brian D. Patterson of first degree felony murder, first degree burglary, and two counts of armed robbery. Patterson cooperated with the investigation and testified at Cañez' trial pursuant to a plea agreement for manslaughter and first degree burglary. Patterson ultimately received a ten-year sentence. Cañez' trial began January 21, 1998, and on February 5, 1998 the jury returned guilty verdicts on all charges. He was sentenced to death on October 27, 1998.

TRIAL ISSUES
I. BATSON CHALLENGE

¶ 16 Cañez, who is Hispanic, made a Batson challenge based on the state's removal of five of the seven Hispanic members of the jury pool. See Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The judge found that this met the defendant's burden of establishing a prima facie case of discrimination and asked the state to explain its strikes. The court ruled that the reasons offered by the state were race-neutral and denied the Batson challenge. Cañez contends that this was error and challenges the following juror strikes:

¶ 17 Perea-The state was concerned that, because sh...

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