State v. Cruz

• Decision Date: 21 April 2008
• Docket Number: No. CR-05-0163-AP.,CR-05-0163-AP.
• Citation: 181 P.3d 196,218 Ariz. 149
• Parties: STATE of Arizona, Appellee, v. John Montenegro CRUZ, Appellant.
• Court: Arizona Supreme Court

181 P.3d 196

218 Ariz. 149

STATE of Arizona, Appellee, v. John Montenegro CRUZ, Appellant.

No. CR-05-0163-AP.

Supreme Court of Arizona, En Banc.

April 21, 2008.

Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Capital Litigation Section, Phoenix, Amy Pignatella Cain, Assistant Attorney General, Tucscon, Attorneys for State of Arizona.

Law Office of David Alan Darby by David Alan Darby, Tucson, Attorneys for John Montenegro Cruz.

OPINION

BERCH, Vice Chief Justice.

¶ 1 John Montenegro Cruz was convicted of one count of first degree murder and sentenced to death. This automatic appeal followed. This Court has jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") section 13-4031 (2004).

I. FACTUAL AND PROCEDURAL BACKGROUND¹

¶ 2 On May 26, 2003, Tucson Police Officers Patrick Hardesty and Benjamin Waters responded to a hit-and-run accident. The investigation led the officers to a nearby apartment.

¶ 3 The apartment was occupied by two women and Appellant Cruz, who fit the description of the hit-and-run driver. The officers asked Cruz to step outside and identify himself. Cruz said he was "Frank White." Officer Hardesty contacted police dispatch to verify the identity and was told that no Frank White with the birthdate given by Cruz was licensed in Arizona. Hardesty asked Cruz for identification and Cruz replied that he had left it in the car.

¶ 4 As Hardesty and Cruz approached the car, Cruz leaned in as if retrieving something, then "took off running." Officer Hardesty chased Cruz on foot, while Waters drove his patrol car around the block in an attempt to cut Cruz off.

¶ 5 When Waters turned the corner, he saw Cruz throw a gun on the ground. Officer Hardesty was nowhere in sight. Waters radioed Hardesty that Cruz had a gun, then got out of his car and drew his service weapon on Cruz, who stated, "Just do it. ... Just go ahead and kill me now. Kill me now. Just get it over with." Waters apprehended Cruz after a brief struggle.

¶ 6 Officer Hardesty's body was discovered immediately. He had been shot five times: Two bullets were stopped by his protective vest, two bullets entered his abdomen below the vest, and a fifth bullet entered his left eye, killing him almost instantly. Four of the five shots were fired from no more than twelve inches away.

¶ 7 The handgun thrown down by Cruz, a .38 caliber Taurus revolver, holds five cartridges. All five cartridges had been fired, and forensic examiners determined that the five slugs recovered from Hardesty's body and vest were fired from that Taurus revolver. Five unfired .38 cartridges that matched the cartridges fired from the Taurus were found in Cruz's pocket when he was apprehended.

¶ 8 Cruz was indicted on one count of first degree murder. The State filed its notice of intent to seek the death penalty alleging a single aggravating factor: "The murdered person was an on duty peace officer who was killed in the course of performing the officer's official duties and the defendant knew, or should have known, that the murdered person was a peace officer." A.R.S. § 13-703(F)(10) (2003).

¶ 9 A jury convicted Cruz of first degree murder and found the (F)(10) aggravating factor. It found the mitigation insufficient to call for leniency and determined that Cruz should be put to death.

II. DISCUSSION

¶ 10 Cruz raises twenty-two issues on appeal and lists an additional twenty-one issues to avoid preclusion.²

A. Jury Issues

1. Change of venue

¶ 11 Much publicity surrounded the death of Officer Hardesty. He was the first officer from the Tucson Police Department killed in the line of duty in twenty-one years. In light of the media attention, Cruz filed several motions to change venue. All were denied. Cruz claims that the publicity was so pervasive and prejudicial that the court's refusal to move the trial was an abuse of discretion.

¶ 12 A party seeking a change of venue must show that the prejudicial pretrial publicity "will probably ... deprive[ ] [the party] of a fair trial." Ariz. R.Crim. P. 10.3(b). We review a trial court's ruling on a motion for change of venue based on pretrial publicity for an abuse of discretion. State v. Nordstrom, 200 Ariz. 229, 239, ¶ 14, 25 P.3d 717, 727 (2001).

¶ 13 When evaluating pretrial publicity, we determine "whether, under the totality of the circumstances, the publicity attendant to defendant's trial was so pervasive that it caused the proceedings to be fundamentally unfair." State v. Blakley, 204 Ariz. 429, 434, ¶ 13, 65 P.3d 77, 82 (2003) (quoting State v. Atwood, 171 Ariz. 576, 630, 832 P.2d 593, 647 (1992)). We consider the effect of pretrial publicity, not merely its quantity. Nordstrom, 200 Ariz. at 239, ¶ 14, 25 P.3d at 727.

¶ 14 The analysis of pretrial publicity involves two inquiries: "(1) did the publicity pervade the court proceedings to the extent that prejudice can be presumed?; if not, then (2) did defendant show actual prejudice among members of the jury?" State v. Murray, 184 Ariz. 9, 26, 906 P.2d 542, 559 (1995); see also State v. Bible, 175 Ariz. 549, 563, 566, 858 P.2d 1152, 1166, 1169 (1993). The mere fact that jury members have been exposed to the facts of the case through media coverage does not create a presumption of prejudice if the jurors can lay aside that information and render a verdict based on the evidence. Atwood, 171 Ariz. at 630-31, 832 P.2d at 647-48, overruled on other grounds by Nordstrom, 200 Ariz. at 241, ¶ 25, 25 P.3d at 729. Even knowledge of the case or an opinion concerning the defendant's guilt will not disqualify a juror if the juror can "set aside such knowledge or opinion in evaluating the evidence presented at trial." State v. Gretzler, 126 Ariz. 60, 77, 612 P.2d 1023, 1040 (1980).

a. Presumed prejudice

¶ 15 For prejudice to be presumed, the publicity must be "so unfair, so prejudicial, and so pervasive that [the court] cannot give any credibility to the jurors' answers during voir dire." State v. Bolton, 182 Ariz. 290, 300, 896 P.2d 830, 840 (1995) (quoting Bible, 175 Ariz. at 565, 858 P.2d at 1168) (alteration in Bolton). In other words, we will presume prejudice only if the "media coverage was so extensive or outrageous that it permeated the proceedings or created a `carnival-like' atmosphere." Atwood, 171 Ariz. at 631, 832 P.2d at 648.

¶ 16 The media extensively covered the death of Officer Hardesty and Cruz's apprehension. Hundreds of television broadcasts and newspaper articles reported the crime and Cruz's suspected guilt. Local radio stations and grocery stores raised money for Hardesty's family; a billboard was erected on a major Tucson street that proclaimed, "Officer Patrick K. Hardesty, Your service to Tucson will never be forgotten"; flags were flown at half staff; and a local police substation was named for Hardesty.

¶ 17 Although the publicity was extensive, it was not "outrageous" and did not create a "carnival-like atmosphere." In Bible, this Court upheld the conviction and death sentence for a defendant who raped and murdered a nine-year-old girl in Flagstaff, despite similarly pervasive and even more inflammatory pretrial publicity. 175 Ariz. at 560-62, 858 P.2d at 1163-65. In that case, "nearly all potential jurors had some knowledge of the case." Id. at 563, 858 P.2d at 1166. Local newspapers reported several pieces of inadmissible evidence, including that Bible had "flunked a lie detector test," and false reports, such as that Bible was a convicted "child molester" who had committed "child rape." Id. at 564, 858 P.2d at 1167. This Court nonetheless found that Bible failed to meet the heavy burden of establishing that the court should apply a presumption of prejudice because the reports were separated from the trial by months. Id. at 564-66, 858 P.2d at 1167-69.

¶ 18 In the case before us, the information disseminated to the public was not nearly as sensational as that circulated before the Bible trial, and it was almost entirely accurate. Moreover, most of the coverage occurred more than a year before trial.

¶ 19 As evidence that the trial court should have presumed prejudice, Cruz points to an opinion poll of 100 potential Pima County jurors. Seventy-nine percent of those polled had heard of Hardesty's murder. Of that group, fifty-one percent thought that Cruz was likely guilty of the crime.

¶ 20 The poll data, however, fail to create a presumption of prejudice. The poll was conducted a year before the start of the trial and showed that, even among the seventy-nine percent of those polled who had heard of the case, nearly half had no opinion regarding Cruz's guilt. Cruz did not show that potential jurors could not set aside their initial impression of guilt. Cruz failed to meet the "very heavy" burden of establishing that prejudice should be presumed.

b. Actual prejudice

¶ 21 In the absence of presumed prejudice, a defendant may demonstrate "that the pretrial publicity was actually prejudicial and likely deprived him of a fair trial." State v. Davolt, 207 Ariz. 191, 206, ¶ 49, 84 P.3d 456, 471 (2004). "The relevant inquiry for actual prejudice is the effect of the publicity on the objectivity of the jurors" actually seated. Murray, 184 Ariz. at 26, 906 P.2d at 559 (citing Bible, 175 Ariz. at 566, 858 P.2d at 1169).

¶ 22 Aside from reasserting the findings of the poll, Cruz presents no evidence of actual prejudice and we see none. The record shows that the voir dire of the jury pool was extensive; it lasted seven days and included individual questioning by counsel of each prospective juror to weed out potentially biased jurors. Cruz offers no example of an actually prejudiced juror who served on this panel. The trial court did not abuse its discretion by declining to move the trial.

2. Sequestration of the jury

¶ 23 Cruz moved three times to sequester the jury. He argues that the trial court abused its discretion in denying these motions....