State v. Gomez

• Decision Date: 07 December 2012
• Docket Number: No. CR–10–0358–AP.,CR–10–0358–AP.
• Citation: 231 Ariz. 219,293 P.3d 495
• Parties: STATE of Arizona, Appellee/Cross–Appellant, v. Fabio Evelio GOMEZ, Appellant.
• Court: Arizona Supreme Court

231 Ariz. 219

293 P.3d 495

STATE of Arizona, Appellee/Cross–Appellant,

v.Fabio Evelio GOMEZ, Appellant.

No. CR–10–0358–AP.

Supreme Court of Arizona,

En Banc.

Dec. 7, 2012.

Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Division Chief Counsel, Jeffrey A. Zick, Section Chief Counsel, Capital Litigation Section, Phoenix, Laura Chiasson, Assistant Attorney General, Tucson, Attorneys for State of Arizona.

Michael J. Dew, Attorney at Law By Michael J. Dew, Phoenix, Attorney for Fabio Evelio Gomez.

OPINION

BALES, Vice Chief Justice.

¶ 1 This automatic appeal concerns Fabio Evelio Gomez's 2010 death sentence for murdering Joan Morane. We have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and A.R.S. §§ 13–4031, –4032, and –4033(A) (2011).

FACTS AND PROCEDURAL BACKGROUND

¶ 2 Joan lived in an apartment complex where Gomez also lived with his girlfriend and infant son. In December 1999, a friend found Joan's door unlocked and furniture in disarray. Joan was missing. That same day, a neighbor heard pounding on Gomez's bathroom wall and a woman screaming. When questioned by police, Gomez said he had been home all day and had not seen Joan or heard any screaming. The next day, police saw blood on an inflatable raft that Gomez had placed in his girlfriend's car.

¶ 3 When Gomez allowed police to enter his apartment, they saw blood on the living room carpet and the bathroom walls. Gomez initially told police that his girlfriend had cut her foot, but later said the blood was from a cat he had killed because it had scratched his son's face. Police discovered Joan's body in a dumpster at the apartment complex. DNA testing identified Gomez's semen in Joan's body and Joan's blood in Gomez's apartment.

¶ 4 In 2001, a jury convicted Gomez of first degree murder, kidnapping, and sexual assault. Before he was sentenced, the United States Supreme Court held that Arizona's death penalty statutes were unconstitutional because they allowed a judge, rather than a jury, to find aggravating factors that could result in a death sentence. Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). The legislature then amended the death penalty statutes. Based on these amendments, the trial court reset the matter for a jury sentencing hearing.

¶ 5 In 2003, a second jury found that the murder was especially cruel and depraved, seeA.R.S. § 13–751(F)(6)(2011), and determined that Gomez should be sentenced to death. State v. Gomez, 211 Ariz. 494, 498 ¶ 16, 123 P.3d 1131, 1135 (2005). This Court affirmed Gomez's convictions and his sentence for sexual assault. Id. at 505 ¶ 53, 123 P.3d at 1142. The Court vacated Gomez's death sentence because he had been shackled in the jury's presence contrary to Deck v. Missouri, 544 U.S. 622, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005), and also vacated his aggravated sentence for kidnapping. Gomez, 211 Ariz. at 505 ¶¶ 51, 53, 123 P.3d at 1142.

¶ 6 On remand, a third jury found the (F)(6) “especially cruel” aggravator and determined Gomez should be sentenced to death for Joan's murder; the trial court also resentenced him for the kidnapping.

DISCUSSION

A. Revocation of Pro Per Status

¶ 7 Gomez argues that, after the case was remanded for resentencing, the trial court erred by revoking his pro per status and appointing counsel to represent him. At the initial sentencing trial, Gomez represented himself until closing arguments, when he chose to be represented by advisory counsel. Gomez, 211 Ariz. at 498 ¶ 16, 123 P.3d at 1135. On remand in 2006, the trial court granted Gomez's request to represent himself in the resentencing and appointed a mitigation expert and advisory counsel to assist him. Nearly three years later, the trial court revoked Gomez's pro per status, noting that Gomez had been unable to comply with the court's deadlines and the disclosure rules for criminal cases.

¶ 8 A trial court's decision to revoke a defendant's self-representation is reviewed for an abuse of discretion. See State v. Martin, 102 Ariz. 142, 146, 426 P.2d 639, 643 (1967). “The right to counsel under both the United States and Arizona Constitutions includes an accused's right to proceed without counsel and represent himself,” State v. Lamar, 205 Ariz. 431, 435 ¶ 22, 72 P.3d 831, 835 (2003), “but only so long as the defendant ‘is able and willing to abide by the rules of procedure and courtroom protocol.’ ” State v. Whalen, 192 Ariz. 103, 106, 961 P.2d 1051, 1054 (App.1997) (quoting McKaskle v. Wiggins, 465 U.S. 168, 173, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984)).

¶ 9 The trial court revoked Gomez's right to self-representation only after repeatedly admonishing him to comply with court rules and deadlines and that noncompliance could result in the loss of his pro per status. In May 2007, after Gomez had represented himself for ten months, the trial court instructed Gomez, his advisory counsel, and his mitigation consultant that they needed to set a realistic schedule for completing their mitigation investigation so the court could set a trial date. The mitigation specialist responded that he would need time to travel to the Dominican Republic (where Gomez lived until 1987) and elsewhere outside Arizona to interview people. In August 2007, the court set a “firm” trial date for September 2, 2008; set a disclosure deadline; and told Gomez that, if he failed to follow the rules and prepare for the resentencing trial, his pro per status would be revoked.

¶ 10 In May 2008, Gomez told the court that he needed at least another eighteen months to prepare. On the recommendation of a mitigation special master, the trial court reset the trial for June 1, 2009. The court again warned Gomez to comply with the court rules and that his pro per status would be revoked if he was not prepared on the rescheduled date. After advisory counsel told the court that the defense would get a psychologist expert and complete testing of Gomez by November 2008, the mitigation special master set a deadline of November 15, 2008 for completing all psychological testing. Despite this deadline, Gomez twice failed to meet with defense psychologists who came to interview him.

¶ 11 In November 2008, the trial court denied Gomez's motion to change advisory counsel and again warned Gomez that he would lose the right to represent himself if he did not follow court rules. The next month, the court denied Gomez's request to extend the discovery deadlines; ordered Gomez to make all required disclosures by January 23, 2009; and affirmed the June 1, 2009 trial date. In violation of that order and Rule 15.2 of the Arizona Rules of Criminal Procedure, Gomez, in January 2009, disclosed the names of some 360 witnesses for the resentencing trial, including a neuropsychologist and a psychologist, without also disclosing any expert reports. The listed witnesses included more than 150 “out of state character witnesses,” more than 70 police officers, Gomez's former defense attorneys, 2 former Arizona attorneys general, and a former Arizona governor. The disclosure did not include addresses for the witnesses. It suggested that Gomez intended to offer evidence challenging the police investigation of the murder or the validity of his convictions, matters that the trial court had told Gomez were not at issue in the resentencing proceeding.

¶ 12 After the State moved to obtain the required disclosures, the trial court gave Gomez until March 25, 2009 to “fully comply with Rule 15.2” and again warned Gomez that his failure to follow the rules could result in loss of his pro per status. On March 25, Gomez filed a notice again listing hundreds of witnesses; he included telephone numbers or addresses for about eighty. At a hearing on March 30, he told the court that he “still [had] many other things” he needed to do and that the identified neuropsychologist and psychologist experts had not yet examined him. Advisory counsel subsequently disclosed two new psychologist experts and told the court that these experts would examine Gomez in April and their reports would be ready before the June 1, 2009 trial date. Noting that this timetable would allow the State little time to obtain rebuttal evidence, the court set a hearing to show cause why it should not revoke Gomez's pro per status and assign counsel to represent him.

¶ 13 At the April 14, 2009 show cause hearing, Gomez said he had done everything he had been told to do, he wished to continue representing himself, and he was ready to proceed with his resentencing trial. Finding that Gomez had been unable to comply with Rule 15, the trial court revoked his pro per status and reset the trial date for September 2009. The court also appointed the two lawyers who had served as advisory counsel since 2006 (Herman Alcantar, Jr. and Christopher Flores) to represent Gomez. The trial was subsequently postponed due to conflicts in the attorneys' schedules and did not occur until September 2010.

¶ 14 Gomez argues that the trial court erred in revoking his pro per status for several reasons. First, he contends that he complied with Rule 15's disclosure requirements and that, if he failed to do so, the trial court should have precluded his witnesses rather than revoke his pro per status. Second, he states that his appointed counsel did not add to his pro per disclosures and did not ultimately present any experts, and that the trial did not take place until seventeen months after his pro per status was revoked. Finally, he argues that revocation is not appropriate unless a pro per defendant engages in “serious obstructionist conduct” in the courtroom, citing United States v. Johnson, 610 F.3d 1138, 1144 (9th Cir.2010).

¶ 15 We disagree. “[A] defendant who proves himself incapable of abiding by the most basic rules of the court is not entitled to defend himself.” Deck, 544 U.S. at 656, 125 S.Ct. 2007. Accordingly, a trial court “may terminate self-representation by a defendant who deliberately engages in...