State v. Gallardo

• Decision Date: 30 November 2010
• Docket Number: No. CR-09-0171-AP.,CR-09-0171-AP.
• Citation: 242 P.3d 159,225 Ariz. 560
• Parties: STATE of Arizona, Appellee, v. Mike Peter GALLARDO, Appellant.
• Court: Arizona Supreme Court

242 P.3d 159 225 Ariz. 560 STATE of Arizona, Appellee, v. Mike Peter GALLARDO, Appellant. No. CR-09-0171-AP. Supreme Court of Arizona, En Banc. Nov. 30, 2010.

Terry Goddard, 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.

Droban & Company, PC by Kerrie M. Droban, Anthem, Attorneys for Mike Peter Gallardo.

OPINION

BALES, Justice.

¶ 1 This mandatory appeal arises from Mike Peter Gallardo's conviction and death sentence for the murder of Rudy Padilla. We have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") section 13-4031 (2010).

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 On December 9, 2005, Rudy Padilla was murdered at his parents' home in Phoenix. Padilla's father returned from work and saw that a sliding glass door into the house

[225 Ariz. 564, 242 P.3d 163]

had been broken. He found his son's body in the master bedroom. Padilla's wrists and ankles had been bound, a pillowcase had been tied over his head, and he had been shot once in the back of the head. The bedroom was in disarray; jewelry and a revolver were missing. Telephone records showed that Gallardo had called the Padilla home from his cell phone the day of the murder, and DNA profiles developed from evidence at the crime scene matched Gallardo's profile. Neither Rudy nor his parents knew Gallardo.

¶ 3 Gallardo was indicted for first degree murder, burglary, and kidnapping. After a mistrial for juror misconduct, a second jury was impaneled. This jury convicted Gallardo on all counts. In the aggravation phase, the jury found two aggravating factors: Gallardo had been previously convicted of a serious offense, see A.R.S. § 13-751(F)(2) (2010), and the murder was especially cruel, id. § 13-751(F)(6). (Statutes are cited in their current version unless they have materially changed since the date of the offense.) In the penalty phase, the jury determined Gallardo should receive a death sentence for the murder. The trial court also sentenced Gallardo to concurrent prison terms of 15.75 years for the burglary and kidnapping counts.

DISCUSSION

¶ 4 Gallardo raises six issues on appeal. For the reasons explained below, we affirm his convictions and sentences.

A. Mistrial After Juror Misconduct

¶ 5 Gallardo argues that the trial court erred in declaring a mistrial after several jurors prematurely discussed the evidence.

¶ 6 The decision to grant a mistrial rests within the sound discretion of the trial court. McLaughlin v. Fahringer, 150 Ariz. 274, 277, 723 P.2d 92, 95 (1986). If there is "manifest necessity" for the mistrial, the Double Jeopardy Clause does not bar retrial. Id. Manifest necessity may arise when juror impartiality is compromised by jurors discussing evidence before deliberations. Cf. Ross v. Petro, 515 F.3d 653, 658 (6th Cir.2008) (holding that state trial court exercised sound discretion in declaring mistrial based on manifest necessity where juror had engaged in misconduct); United States v. Gianakos, 415 F.3d 912, 921 (8th Cir.2005) (explaining that premature deliberation by a jury "is not a light matter" and that a court must carefully consider "[a] legitimate concern that a juror's impartiality is suspect"). Because curative instructions or other measures "will not necessarily remove the risk of bias," the trial court "must have the power to declare a mistrial in appropriate cases." Arizona v. Washington, 434 U.S. 497, 513, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978).

¶ 7 At the beginning of the guilt phase, the trial court admonished the jurors not to discuss the case "until all the evidence has been presented and [you] have retired to deliberate on the verdict. You therefore may not discuss the evidence amongst yourselves until you retire to deliberate on your verdict."

¶ 8 Upon learning that some jurors had prematurely discussed the evidence, the trial court individually questioned each of the sixteen impaneled jurors. The parties agreed that one juror (Juror 13) should be excused for an unrelated hardship. The trial court found that three other jurors should be excused for violating the admonition and not candidly responding to questions. The trial court also found that three other jurors had formed opinions about other jurors that would affect their deliberations. Striking all these jurors would not leave twelve to deliberate; striking only those who violated the admonition would leave no alternates for a capital case expected to last three months. The trial court also found it "highly likely" that four other jurors had violated the admonition despite having denied doing so.

¶ 9 Gallardo argues that less onerous sanctions were available, all of the jurors stated they could remain fair and impartial, and he was satisfied with the jurors selected. But he agreed to the removal of two jurors (Jurors 11 and 13), and he offers no good reason to question the trial court's conclusions about the others. The trial court carefully considered Gallardo's interest in having the trial concluded by the originally impaneled jury

[225 Ariz. 565, 242 P.3d 164]

and did not abuse its discretion in declaring a mistrial.

B. Batson Challenge

¶ 10 Gallardo argues that the trial court erred in denying his challenges to the State's peremptory strikes of three minority jurors during selection of the second jury. We review for clear error. State v. Roque, 213 Ariz. 193, 203 ¶ 12, 141 P.3d 368, 378 (2006).

¶ 11 Excluding a potential juror based on race violates the Equal Protection Clause of the Fourteenth Amendment. Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Batson challenges require a three-step analysis: "(1) the party challenging the strikes must make a prima facie showing of discrimination; (2) the striking party must provide a race-neutral reason for the strike; and (3) if a race-neutral explanation is provided, the trial court must determine whether the challenger has carried its burden of proving purposeful racial discrimination." State v. Cañez, 202 Ariz. 133, 146 ¶ 22, 42 P.3d 564, 577 (2002). Whether the justifications offered for striking a juror are pretexts for discrimination turns on the lawyer's credibility, and "the best evidence [of discriminatory intent] often will be the demeanor of the attorney who exercises the challenge." Snyder v. Louisiana, 552 U.S. 472, 477, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008) (alteration in original).

¶ 12 The trial court did not clearly err in overruling Gallardo's Batson challenges. Although Gallardo made a prima facie showing of discrimination, the State offered an explanation for each strike "based on something other than the race of the juror." Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion). The State struck one juror for hardship, another for her negative feelings toward police, and the last for her criminal history.

¶ 13 The trial court found that the reasons the State articulated were not pretexts and there was no pattern or practice of discrimination. Other minority jurors were ultimately selected for the panel, and "[a]lthough not dispositive, the fact that the state accepted other [minority] jurors on the venire is indicative of a nondiscriminatory motive." Roque, 213 Ariz. at 204 ¶ 15, 141 P.3d at 379 (internal quotation marks omitted) (second alteration in original). The trial court did not clearly err in overruling the Batson challenges.

C. (F)(6) Aggravator

¶ 14 Gallardo argues that the State failed to present sufficient evidence to support the jury's finding that the murder was "especially cruel." He also argues that the jury instruction on the (F)(6) aggravator was unconstitutionally vague and improperly reduced the State's burden of proof.

1. Sufficiency of the Evidence

¶ 15 We determine whether substantial evidence supports the jury's finding, viewing the facts in the light most favorable to sustaining the jury verdict. Id. at 218 ¶ 93, 141 P.3d at 393. "Substantial evidence is such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." Id. (citations and internal quotation marks omitted).

¶ 16 Under A.R.S. § 13-751(F)(6), a first degree murder is aggravated when "[t]he defendant committed the offense in an especially heinous, cruel or depraved manner." "A finding of cruelty alone is sufficient to establish the [ (F)(6) ] aggravator." State v. Morris, 215 Ariz. 324, 341 ¶ 80, 160 P.3d 203, 220 (2007). To establish cruelty, the State must prove beyond a reasonable doubt that "the victim consciously experienced physical or mental pain prior to death, and the defendant knew or should have known that suffering would occur." State v. Martinez, 218 Ariz. 421, 436 ¶ 70, 189 P.3d 348, 363 (2008) (citation and internal quotation marks omitted).

¶ 17 The record contains substantial evidence that Rudy experienced mental anguish before death and that Gallardo knew or should have known that such suffering would occur. Rudy almost certainly was conscious when bound, as there is no reason to bind an

[225 Ariz. 566, 242 P.3d 165]

unconscious person. See State v. Lynch, 225 Ariz. 27, 41 ¶ 79, 234 P.3d 595, 609 (2010); State v. Djerf, 191 Ariz. 583, 596 ¶ 49, 959 P.2d 1274, 1287 (1998); see also State v. Bible, 175 Ariz. 549, 604-05, 858 P.2d 1152, 1207-08 (1993) ("The fact that [the victim's] hands were bound indicates that she was conscious and tied-up to prevent struggling."). Ligature abrasions on Rudy's neck, wrists, and ankles indicate that the bindings were not loose.

¶ 18 Moreover, there is evidence that Rudy struggled against the ligatures attempting to free himself. See Lynch, 225 Ariz. at 41 ¶ 79, 234 P.3d at 609; Djerf, 191 Ariz. at 596 ¶ 51, 959 P.2d at 1287 (inferring mental anguish from contusions and abrasions on victim's wrists)....