State v. Cota

Decision Date22 March 2012
Docket NumberNo. CR–09–0218–AP.,CR–09–0218–AP.
Citation229 Ariz. 136,272 P.3d 1027
PartiesSTATE of Arizona, Appellee, v. Benjamin Bernal COTA, Appellant.
CourtArizona Supreme Court

OPINION TEXT STARTS HERE

Thomas C. Horne, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section, Susanne Bartlett Blomo, Assistant Attorney General, Phoenix, Attorneys for State of Arizona.

David Goldberg, Esq. by David Goldberg Fort Collins, CO, Attorney for Benjamin Cota.

OPINION

HURWITZ, Vice Chief Justice.

¶ 1 A jury found Benjamin Bernal Cota guilty of two counts of first degree murder, two counts of armed robbery, one count of possession of narcotics, and one count of unlawful flight. He was sentenced to death on one first degree murder count and to prison terms for the other counts. We have jurisdiction over this appeal under Article VI, Section 5(3) of the Arizona Constitution and A.R.S. §§ 13–4031 and 13–4033(A)(1) (2011).1

I. FACTS AND PROCEDURAL BACKGROUND2

¶ 2 Victor Martinez and his wife, Guadalupe Zavala, lived in Peoria. In late 2003, they hired Cota to assist with home repair projects. Martinez and Zavala had jobs outside their home and spoke with friends and family daily. But on December 30, 2003, both disappeared without explanation.

¶ 3 Martinez was last seen that afternoon. He told his son that he was going to take a nap, and then drive Cota home before going to work at 6:00 p.m. Martinez never arrived at work. Zavala worked until 8:00 p.m. that night, but was never heard from thereafter. Concerned friends, co-workers, and family members called and went by the couple's home repeatedly in the following days. Cota sometimes answered the telephone and gave inconsistent accounts about the couple's whereabouts. He also began driving the couple's pickup truck and gave their car to his son. He sold the couple's water heater and tried to sell jewelry he claimed the couple had given him.

¶ 4 On January 3, 2004, Cota pawned two of Zavala's bracelets. He withdrew money from the couple's bank accounts on January 5 and 6. He invited friends to stay with him at the couple's home, but told them not to enter the master bedroom or answer the phones. After Cota allowed them to enter the master bedroom, one friend saw a large pile of clothes in the closet.

¶ 5 On January 6, family members went to the home and noticed items missing outside, including the water heater. They called the police and gained entrance into the home. They found the bodies of Martinez and Zavala wrapped in plastic in the master bedroom closet beneath a pile of clothes.

¶ 6 Police located Cota at his mother's home, where the couple's pickup truck was parked. During an ensuing chase, Cota tossed items out of the truck, including drugs and his wallet. Police apprehended him after he crashed the truck and fled on foot. His wallet contained Zavala's date of birth and social security number, and pawn tickets dated January 3. Police searched Cota's mother's home and found his shoes. DNA testing of blood on the shoes revealed contributions from Cota, Martinez, and Zavala.

¶ 7 Cota was charged in one indictment with two counts of first degree murder and two counts of armed robbery, and in a second with possession of narcotics and unlawful flight. The indictments were joined for trial, and a jury found Cota guilty on all counts. In the aggravation phase of the murder cases, the jury found that Cota had been convicted of a serious offense committed on the same occasion, A.R.S. § 13–751(F)(2), that Cota committed the crime while on authorized release, § 13–751(F)(7), and that Martinez was over the age of seventy, § 13–751(F)(9).

¶ 8 In the penalty phase, the jury returned a death sentence for the murder of Zavala, but was unable to reach a verdict as to the murder of Martinez. The trial court sentenced Cota to natural life on that count and to prison terms for the non-homicide counts, all but one consecutive to the others.

II. ISSUES ON APPEAL
A. Consolidation of Cases and Flight Evidence

¶ 9 Cota argues that the trial court erred by admitting evidence of his flight from the police and by joining the two indictments for trial. Cota, however, twice consented to the joinder. He first did so months before trial and again early in the trial when the judge entered a formal consolidation order.

¶ 10 Before joining the indictments, the trial court had granted the State's motion to admit evidence of Cota's flight in the murder case. When the indictments were formally consolidated, defense counsel preserved an objection to the flight evidence, but said that in light of the court's previous adverse ruling on that issue, Cota had decided to consent to the joinder for strategic reasons. Thus, the only relevant question is whether the flight evidence was properly admitted. We review for abuse of discretion. State v. Bible, 175 Ariz. 549, 592, 858 P.2d 1152, 1195 (1993).

¶ 11 Evidence of flight is admissible to show consciousness of guilt when the defendant flees “in a manner which obviously invites suspicion or announces guilt.” State v. Weible, 142 Ariz. 113, 116, 688 P.2d 1005, 1008 (1984). Cota does not dispute this general principle, but argues that the eight days between the murders and his flight rendered the evidence inadmissible. Remoteness of flight in relation to the commission of the crime, however, goes to the weight of the evidence, not its admissibility. Bible, 175 Ariz. at 592, 858 P.2d at 1195; see also State v. Edwards, 136 Ariz. 177, 184, 665 P.2d 59, 66 (1983) (holding flight evidence properly admitted when defendant fled from police fifteen months after the crime was committed).

¶ 12 Cota also contends that the flight evidence was inadmissible because he may have been fleeing because he had violated parole and had drugs in the car. But [m]erely because a defendant is wanted on another charge ... does not make evidence of flight per se inadmissible.” Bible, 175 Ariz. at 592, 858 P.2d at 1195. The circumstances here “justify an inference that Defendant was fleeing from some other, more serious crime.” Id. The trial court did not abuse its discretion by admitting the flight evidence and instructing the jury as to its limited use with respect to the murder counts.3

B. Exclusion of Non–English Speaking Jurors

¶ 13 A.R.S. § 21–202(B)(3) requires dismissal of prospective jurors “not currently capable of understanding the English language.” Cota moved to preclude the jury commissioner from excluding non-English speakers from the master jury list. Citing State v. Cordova, 109 Ariz. 439, 511 P.2d 621 (1973), the trial court denied the motion. Cota argues that § 21–202(B)(3) is unconstitutional. We review a statute's constitutionality de novo. State v. Stummer, 219 Ariz. 137, 141 ¶ 7, 194 P.3d 1043, 1047 (2008).

¶ 14 [T]he American concept of the jury trial contemplates a jury drawn from a fair cross section of the community.” Taylor v. Louisiana, 419 U.S. 522, 527, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). A defendant alleging a fair cross-section violation of the Sixth Amendment must show

(1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). The Constitution is not violated, however, if “a significant state interest” is “manifestly and primarily advanced by those aspects of the jury-selection process ... that result in the disproportionate exclusion of a distinctive group.” Id. at 367–68, 99 S.Ct. 664.

¶ 15 Cota contends that “non-English speaking Hispanic citizens” are a “distinctive group.” Section 21–202(B)(3), however, excuses all prospective jurors “not currently capable of understanding the English language,” not just Hispanics. “Non–English speakers” are not a “distinctive group” for Sixth Amendment purposes. See, e.g., State v. Haugen, 349 Or. 174, 243 P.3d 31, 39–40 (2010); Commonwealth v. Acen, 396 Mass. 472, 487 N.E.2d 189, 194 (1986).

¶ 16 Moreover, the statute serves a significant state interest. In rejecting a similar challenge, we noted that [i]t would be an undue burden upon the State court system to have to translate for non-English speaking or reading jurors.” Cordova, 109 Ariz. at 441, 511 P.2d at 623. This state interest remains compelling.4 See State v. Gibbs, 254 Conn. 578, 758 A.2d 327, 341 (2000).5

C. Dismissal of Juror 46

¶ 17 Given Cota's drug addiction and widespread drug use among his friends and family, testimony at the guilt and penalty phases focused on substance abuse. Questions regarding addiction were therefore included in the juror questionnaire.

¶ 18 Juror 46 disclosed that two of her brothers had died of heroin overdoses. When the prosecutor asked if she could set aside her experiences and consider the evidence fairly, she responded, “Honestly, no. It's upsetting me right now thinking about it.” When the trial judge asked if she could be fair to both sides, Juror 46 said she didn't know if she could be fair to the prosecution. The judge excused her for cause.

¶ 19 Cota argues that the trial judge erred by excusing Juror 46 and by not allowing Cota sufficient opportunity to rehabilitate her. We review for abuse of discretion. State v. Lavers, 168 Ariz. 376, 390, 814 P.2d 333, 347 (1991).

¶ 20 A juror should be excused for cause [w]hen there is reasonable ground to believe that a juror cannot render a fair and impartial verdict.” Ariz. R.Crim. P. 18.4(b). The record supports the trial court's dismissal of this juror. The record also demonstrates that, before the trial judge excused Juror 46, defense counsel had a fair opportunity to examine her. See State v. Cañez, 202 Ariz. 133, 148 ¶ 37, 42 P.3d 564, 579 (2002) (“The method and...

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    ...determined that abuse of discretion review [for death sentences] is constitutional," State v. Cota , 229 Ariz. 136, 153 ¶ 92, 272 P.3d 1027, 1044 (2012) (citing (Cody J. ) Martinez , 218 Ariz. at 434 ¶¶ 61–62, 189 P.3d at 361 ), Sammantha contends that "no case addresses [her] argument." To......
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    ...the Eighth and Fourteenth Amendments and, therefore, that independent review is required. We recently rejected this argument in State v. Cota, 229 Ariz. 136, –––– ¶¶ 91–92, 272 P.3d 1027, –––– (2012). He also claims that even under an abuse of discretion standard, his death sentence should ......
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1 books & journal articles
  • Juror Perceptions of Intoxicated Suspects’ Interrogation-Related Behaviors
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    • February 1, 2020
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