State v. Forde

Decision Date17 January 2014
Docket NumberNo. CR–11–0043–AP.,CR–11–0043–AP.
Citation315 P.3d 1200,233 Ariz. 543
PartiesThe STATE of Arizona, Appellee, v. Shawna FORDE, Appellant.
CourtArizona Supreme Court

OPINION TEXT STARTS HERE

Thomas C. Horne, Arizona Attorney General, Robert L. Ellman, Solicitor General, Jeffrey A. Zick, Chief Counsel, Capital Litigation Section, Susanne Bartlett Blomo, Assistant Attorney General (argued), Phoenix, for State of Arizona.

Amy Armstrong, Director, Natman Schaye, Julie Hall (argued), Arizona Capital Representation Project, Tucson, for Shawna Forde.

Justice TIMMER authored the opinion of the Court, in which Chief Justice BERCH, Vice Chief Justice BALES, Justice PELANDER, and Justice BRUTINEL joined.

Justice TIMMER, opinion of the Court.

¶ 1 Shawna Forde was sentenced to death after a jury found her guilty of two counts of first degree felony murder and six other felonies committed during a home invasion. We have jurisdiction over her automatic appeal under Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 13–4031.1

BACKGROUND 2

¶ 2 Forde was the self-proclaimed leader of a private “minuteman” border monitoring group. To fund her operation, she planned to steal from a house in Arivaca owned by victim Raul Flores, a reputed drug dealer. In May 2009, Forde met with minuteman members in Colorado, discussed her plan, and sought their help. She also sought assistance from Arivaca drug dealers Albert Gaxiola and Oin Oakstar, who had been plotting to kill Flores as a perceived rival in the drug trade. A few days before the murders, Forde and Jason Bush, her “number two guy” in the minuteman group, met with Gaxiola and Oakstar and discussed killing Flores and stealing drugs and money.

¶ 3 On the morning of May 29, as Oakstar, Forde, and Bush slowly drove by Flores's home, Flores's wife Gina and their nine-year-old daughter Brisenia were in the front yard. Gaxiola later asked Oakstar to go with him to “take care” of Flores, but Oakstar declined, saying he was too drunk.

¶ 4 That night, Forde and Bush returned to Flores's home with Gaxiola and at least one other person. Forde awakened the family by banging on the front door and shouting. When Flores opened the door, Forde demanded entry or else, she said, we're going to shoot you.” Flores stepped aside, and Forde and Bush, dressed in camouflage and Bush with a blackened face, rushed in. While Bush, who was armed, stood by, Forde ordered Flores to sit near Gina, who was seated on a couch where Brisenia lay sleeping.

¶ 5 Flores asked what was occurring, and Bush replied, “don't take this personal[ly] but this bullet has your name on it.” Flores jumped up and wrestled with Bush, and Bush shot him. Bush then shot Gina twice, and she fell to the floor and pretended to be dead. Flores shouted for Bush to stop, prompting Bush to shoot Flores several more times, killing him. During these shootings, Forde did not react or ask Bush to stop.

¶ 6 Forde then announced that everything was clear, and two other intruders entered the house. Forde left the room and began rummaging through drawers in the master bedroom. Meanwhile, Bush questioned Brisenia and then shot her twice, killing her. Forde returned to the living room saying they needed to hurry because someone was coming. The intruders then broke the lights in the house and ran out.

¶ 7 Gina called 911. While she was on the telephone, Forde, who had shed her camouflage jacket and pulled her hair into a ponytail, came back into the house to retrieve a dropped gun. Forde spotted Gina and ran outside, shouting for someone to “finish [her] off.” Bush re-entered the house and began firing at Gina, who returned fire, injuring Bush and prompting him to flee. Gaxiola then entered the house but quickly departed after realizing Gina had recognized him. Shortly thereafter, the intruders left.

¶ 8 Forde, Bush, and Gaxiola went to Gaxiola's home. Gaxiola returned to observe the murder scene and texted Forde saying, “cops on scene, lay low.” Forde responded, “no worries, all good, just relax, competition gone.” She then took care of Bush's wound. A few hours later, she texted her daughter saying, “whatever goes down, I'm in deep now. I love you, make me proud, and do something good with your life.”

¶ 9 After learning of the murders, R.W. and R.C., who had attended the Colorado minuteman meeting, called the FBI and told them about Forde's plans. Police stopped Forde as she was driving on June 12 and arrested her. A belt buckle marked “G” and jewelry taken from Gina's bedroom during the home invasion were found in Forde's purse, which was in her car.

¶ 10 The State indicted Forde on two counts of first degree murder as well as first degree burglary, attempted first degree murder, aggravated assault causing serious physical injury, aggravated assault with a deadly weapon, armed robbery, and aggravated robbery. A jury found her guilty on all counts. During the aggravation phase, the jury found three aggravating circumstances for Flores's murder and four aggravating circumstances for Brisenia's. After receiving evidence in the penalty phase, the jury determined that Forde should be sentenced to death for each murder. The trial court then imposed death sentences for the murders and prison sentences totaling seventy-five years for the non-capital counts.

DISCUSSION
I. PRETRIAL
A. Pretrial Publicity

¶ 11 Forde unsuccessfully moved to change venue from Tucson based on extensive media coverage of the crimes, some of which was inaccurate or inflammatory. We review the trial court's ruling for an abuse of discretion. State v. Cruz, 218 Ariz. 149, 156 ¶ 12, 181 P.3d 196, 203 (2008).

¶ 12 Our review entails a two-step inquiry to decide “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.” Id. ¶ 13 (internal quotation marks omitted). We first consider whether the publicity so pervaded the proceedings that the trial court erred by not presuming prejudice. Id. ¶ 14. If not, we ask whether the defendant showed actual prejudice. Id. Forde does not assert the existence of actual prejudice but argues that the trial court erred by failing to presume prejudice.

¶ 13 A court presumes prejudice “only if the ‘media coverage was so extensive or outrageous that it permeated the proceedings or created a carnival-like atmosphere.’ Id. at 157 ¶ 15, 181 P.3d at 204 (quoting State v. Atwood, 171 Ariz. 576, 631, 832 P.2d 593, 648 (1992)) (internal quotation marks omitted). The publicity must be so unfair, prejudicial, and pervasive that jurors could not decide the case fairly, even if they avow otherwise. State v. Bible, 175 Ariz. 549, 565, 858 P.2d 1152, 1168 (1993). The burden to show presumed prejudice is “extremely heavy.” Id. at 564, 858 P.2d at 1167 (quoting Coleman v. Kemp, 778 F.2d 1487, 1537 (11th Cir.1985)).

¶ 14 The publicity surrounding this case was not so pervasive and prejudicial that the court should have presumed prejudice. Most of the publicity occurred in the immediate aftermath of the crimes—approximately eighteen months before trial. Moreover, most news accounts were essentially factual. We have held that the trial court properly refused to presume prejudice under similar circumstances. See, e.g., Cruz, 218 Ariz. at 157 ¶ 18, 181 P.3d at 204 (finding no presumed prejudice when publicity occurred more than a year before trial and was almost entirely accurate); State v. Blakley, 204 Ariz. 429, 434 ¶ 15, 65 P.3d 77, 82 (2003) (refusing to presume prejudice when local inflammatory news stories appeared primarily at the time of the crime or in pretrial stages); Bible, 175 Ariz. at 563–64, 858 P.2d at 1166–67 (finding news containing inadmissible or inaccurate evidence did not create presumed prejudice when the stories of rape and murder of nine-year-old child were published “months before trial began” and nearly all coverage was based on factual evidence admitted at trial).

¶ 15 Forde asserts that the trial court erroneously discounted the significance of internet news stories because, although they were published well before her trial began, they remained accessible online. Forde has not shown, however, that the continuing availability of internet news equates to continuing coverage and, more importantly, continuing readership by prospective jurors.

¶ 16 Forde also argues that a change of venue was warranted by the extensive publicity surrounding the January 8, 2011 shootings of Congresswoman Gabrielle Giffords and others in Tucson (the “Giffords shootings”), which occurred just three days before the originally scheduled start of trial. Because Forde never asked for a change of venue on this basis, we review only for fundamental error. State v. Henderson, 210 Ariz. 561, 567 ¶ 19, 115 P.3d 601, 607 (2005). Under this standard of review, Forde bears the burden of proving that fundamental error occurred and that it prejudiced her. Id. ¶ 20. “Fundamental error” is “error going to the foundation of the case, error that takes from the defendant a right essential to his defense, [or] error of such magnitude that the defendant could not possibly have received a fair trial.” Id. ¶ 19.

¶ 17 We do not find any error, much less fundamental error. Forde made no showing that publicity about the Giffords shootings had a spill-over effect on Forde's trial or created a carnival-like atmosphere in this case. Although this case and the Giffords shootings each involved the shooting death of a nine-year-old girl, this common element is insufficient to justify a presumption that the publicity surrounding the Giffords shootings deprived Forde of a fair trial. See State v. Lane, 334 N.C. 148, 431 S.E.2d 7, 9 (1993) (holding that a change of venue was not warranted due to publicity surrounding an unrelated murder with common features because the defendant failed to establish any specific prejudice against him as a result of the publicity).

B. Motions to Continue

¶ 18 Forde argues...

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