State v. Gomez, CR-03-0199-AP.
| Decision Date | 06 December 2005 |
| Docket Number | No. CR-03-0199-AP.,CR-03-0199-AP. |
| Citation | 123 P.3d 1131,211 Ariz. 494 |
| Parties | STATE of Arizona, Appellee, v. Fabio Evelio GOMEZ, Appellant. |
| Court | Arizona Supreme Court |
COPYRIGHT MATERIAL OMITTED
Terry Goddard, Arizona Attorney General, by Kent E. Cattani, Chief Counsel, Capital Litigation Section, Jim D. Nielsen, Assistant Attorney General, Phoenix, Attorneys for the State of Arizona.
James J. Haas, Maricopa County Public Defender, by Terry J. Adams, Deputy Public Defender, Susan L. Corey, Deputy Public Defender, Phoenix, Attorneys for Fabio Evelio Gomez.
¶ 1 Fabio Evelio Gomez was convicted of kidnapping, sexual assault, and first degree murder. Gomez received a death sentence for first degree murder and an automatic notice of appeal was filed pursuant to Arizona Rule of Criminal Procedure 31.2(b). This Court has jurisdiction under Article 6, Section 5(3), of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") 13-4031 (2001).
¶ 2 Joan Morane lived in the Chandler Park Tower Apartments in Chandler, Arizona. On December 2, 1999, a friend stopped by Joan's apartment after work. The door of the apartment was unlocked and various items inside were in disarray.
¶ 3 Gomez lived across the landing from Joan. Shortly after 5:00 p.m., a resident of the apartment complex heard a woman screaming "No!" from Gomez's bathroom and called 911. Chandler police officers responded to the call.
¶ 4 When the officers arrived, Joan's friend informed them that Joan was missing. After looking through Joan's apartment, the officers departed.1 Joan's friend remained and attempted to talk to neighbors about the 911 call. Gomez initially did not respond to knocks on his door, but later emerged, denying that he had seen Joan or heard any screaming. Shortly thereafter, Gomez left his apartment to pick up his live-in girlfriend.
¶ 5 Joan still had not returned, so her friend telephoned Joan's ex-husband, who arrived at the complex at about 6:00 p.m. The ex-husband found two red buttons outside of Gomez's apartment door, and Chandler police were again summoned. An officer returned, collected the buttons, and left the complex at approximately 8:00 p.m.
¶ 6 Gomez and his girlfriend returned at about the same time as the officers were leaving. The girlfriend saw blood in their apartment and complained to Gomez. Gomez told her that earlier that day he had gone outside to smoke, leaving the door open, and that a cat had come in and scratched their baby. Gomez said that he bludgeoned the cat to death in the bathroom and threw it into a dumpster at the complex. The girlfriend went down to look in the dumpster but saw no cat; on returning to the apartment she discovered more blood.
¶ 7 Chandler police officers came back to the complex later that evening and briefly questioned Gomez from outside of his apartment. Gomez again claimed to know nothing about Joan's disappearance or sounds of screaming coming from his apartment. The police returned to the complex several times during the early morning of December 3. On one of these occasions, an officer saw Gomez on the staircase carrying a deflated yellow raft to his girlfriend's vehicle. Gomez again denied any knowledge of Joan's disappearance.
¶ 8 The officer returned about an hour later and looked into the girlfriend's car with his flashlight. After the officer noted what appeared to be two small bloodstains on the yellow raft, he called for backup, went upstairs, and asked Gomez whether he and another officer could enter the apartment. Gomez agreed.
¶ 9 Once inside, one officer saw what appeared to be blood spots on the living room carpet. He asked Gomez where the blood had come from; Gomez replied that his girlfriend had cut her foot. The officers obtained Gomez's consent to search the apartment and noticed more blood on the bathroom walls.
¶ 10 In the bedroom, an officer found the girlfriend asleep, awakened her, and asked if she had cut her foot. She replied she had not; the officer looked at her feet and found no injuries. He then asked her about the blood in the living room, and she related Gomez's explanation about the cat.
¶ 11 The officers then asked Gomez what he had done with the cat. Gomez said that he had put it in a garbage bag and thrown it into a dumpster at a nearby restaurant. After radioing for a search of the restaurant dumpster, officers noticed more spots of what appeared to be blood in the bathroom and by the front door and found wet throw rugs hung up to dry in the bathroom.
¶ 12 A search of the restaurant dumpster proved futile. However, an officer subsequently saw what appeared to be dried blood on the front of a dumpster at the apartment complex. Inside the dumpster, an officer found a blanket, a newspaper, and a woman's blouse, all with dried blood on them. A more thorough search revealed Joan's body, clad only in a red nightshirt missing buttons similar to the ones found outside Gomez's apartment.2 In nearby dumpsters, the police found a pair of stained shorts, duct tape with blood on it and hairs attached to it, and bloodstained socks and washcloths.
¶ 13 Subsequent searches of Gomez's apartment revealed bloodstains on the walls and floor and a large bloodstain near the patio door that had been covered up with several towels and a pillow. A bloodstained comforter was found inside the washing machine. The police also found socks and towels in the apartment similar to the bloodstained items in the dumpsters. They also found a receipt dated December 1, 1999, showing the purchase of duct tape; the only duct tape found in the apartment was a small strip stuck to the carpet.
¶ 14 Vaginal swabs taken from Joan's body revealed the presence of semen. Subsequent DNA testing identified the semen as Gomez's and the bloodstains in the apartment as Joan's. No cat blood was ever found in the apartment.
¶ 15 At trial, Gomez denied any knowledge of or involvement in Joan's disappearance and murder. He admitted to having sex with Joan but claimed it was consensual. He again claimed that the blood in his apartment was from a cat.
¶ 16 The jury returned verdicts finding Gomez guilty of first degree murder, kidnapping, and sexual assault.3 Sentencing proceedings were commenced before the trial judge, but before sentence could be pronounced, the United States Supreme Court decided Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (Ring II), holding Arizona's capital sentencing scheme unconstitutional. The legislature then amended the capital sentencing statute and assigned to juries the responsibility of finding aggravating circumstances and determining whether a sentence of life imprisonment or death should be imposed. 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, 3 (codified at A.R.S. 13-703.01 (Supp.2003)). The sentencing proceedings therefore began anew under the amended statutes before a new judge and a newly empanelled jury. Gomez represented himself during these proceedings with the assistance of advisory counsel.4 At the conclusion of the aggravation phase, the jury unanimously found that the murder was committed in a cruel and depraved manner but was not unanimous as to whether the murder was heinous.5 After hearing mitigation evidence in the penalty phase, the jury found death to be the appropriate sentence. The superior court subsequently sentenced Gomez to death for the first degree murder and to aggravated sentences for the kidnapping and sexual assault, the non-capital sentences to run concurrently with each other and consecutively to the death sentence.
¶ 17 Gomez challenges his conviction for first degree murder and his sentences for all three of the offenses. For the reasons below, we affirm Gomez's convictions but vacate his death sentence and the kidnapping sentence and remand for resentencing.
¶ 18 Gomez argues that the superior court erred in giving the following jury instruction regarding premeditation:
The court gave this instruction both at the beginning and end of the trial. Gomez did not object on either occasion.
¶ 19 In State v. Thompson, we found the use of the phrase "proof of actual reflection is not required" to be error if given in a jury instruction "without further clarification." 204 Ariz. 471, 480 ¶ 34, 65 P.3d 420, 429 (2003). The State concedes that the instruction given in this case was erroneous in light of Thompson, but argues that reversal is not warranted because of Gomez's failure to object to the instruction.
¶ 20 We have emphasized that "rarely will an improperly given instruction justify reversal of a criminal conviction when no objection has been made in the trial court." State v. Van Adams, 194 Ariz. 408, 415 ¶ 17, 984 P.2d 16, 23 (1999) (internal quotation marks and citations omitted). In the absence of an objection to an instruction, we review for fundamental error. State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984).
¶ 21 Error is fundamental if it "goes to the foundation of the defendant's case, takes away a right that is essential to his defense, and is of such magnitude that he could not have received a fair trial." State v. Henderson, 210 Ariz. 561, 568 ¶ 24, 115 P.3d 601, 608 (2005). Reversal is required only if the defendant was actually prejudiced by the error. Id. at 567 ¶ 20, 115 P.3d at 607.
To continue reading
Request your trial
-
State v. Allen
... ... ( Fabio E. ) Gomez , 211 Ariz. 494, 498 16 n.3, 123 P.3d 1131, 1135 (2005) ("A jury need not be unanimous as to the theory of first degree murder as long as all agree ... ...
-
State v. McLemore
... ... R.Crim. P. 6.1(e) cmt. ([D]efendant's right to withdraw a waiver of counsel is unlimited.). But see State v. Gomez, 211 Ariz. 494, 505, 52, 123 P.3d 1131, 1142 (2005) (Because [the defendant] allowed advisory counsel to give the closing argument in the penalty ... ...
-
State v. Payne
... ... at 367 ¶ 79, 207 P.3d at 620; cf. State v. Gomez, 211 Ariz. 494, 498 ¶ 16 n. 3, 123 P.3d 1131, 1135 n. 3 (2005) (noting that a “jury need not be unanimous as to the theory of first degree murder ... ...
-
State v. Kiles
... ... First, as the State notes, there is no need for unanimity on a single theory. Cf. State v. Gomez, 211 Ariz. 494, 498 n. 3, ¶ 16, 123 P.3d 1131, 1135 n. 3 (2005) ("A jury need not be unanimous as to the theory of first degree murder so long as ... ...