State v. Goudeau

• Decision Date: 17 June 2016
• Docket Number: No. CR–11–0406–AP,CR–11–0406–AP
• Citation: 372 P.3d 945,239 Ariz. 421
• Parties: State of Arizona, Appellee, v. Mark Goudeau, Appellant.
• Court: Arizona Supreme Court

239 Ariz. 421

372 P.3d 945

State of Arizona, Appellee

v.Mark Goudeau, Appellant.

No. CR–11–0406–AP

Supreme Court of Arizona.

Filed June 17, 2016

As Amended on Denial of Reconsideration July 5, 2016

Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor General, Lacey Stover Gard, Chief Counsel, Capital Litigation Section, Jeffrey L. Sparks (argued), Assistant Attorney General, Phoenix, Attorneys for State of Arizona.

David Goldberg (argued), David Goldberg Attorney at Law, Fort Collins, CO, Attorney for Mark Goudeau.

VICE CHIEF JUSTICE PELANDER authored the opinion of the Court, in which CHIEF JUSTICE BALES, and JUSTICES BRUTINEL, TIMMER, and BERCH (RETIRED) joined.

VICE CHIEF JUSTICE PELANDER, opinion of the Court:

¶ 1 Mark Goudeau was convicted of nine counts of first degree murder, among other crimes. This automatic appeal follows the imposition of nine death sentences and other sentences. Ariz. R. Crim. P. 31.2(b). We have jurisdiction under article 6, section 5(3) of the Arizona Constitution and A.R.S. §§ 13–755, –4031, and –4033(A)(1).

I. FACTUAL OVERVIEW AND PROCEDURAL BACKGROUND¹

¶ 2 Based on DNA evidence, the police arrested Goudeau in September 2006 for sexual assaults committed in 2005 and 2006. Further investigation led police to suspect Goudeau's involvement in a series of murders and other crimes against thirty-three different victims in the Phoenix area between August 2005 and June 2006.

¶ 3 The State charged Goudeau with seventy-four felonies, including nine first degree murders for which the State sought the death penalty. The trial court denied Goudeau's pretrial motion to sever various counts for trial. The court later granted the State's request to divide the presentation of its guilt-phase evidence into thirteen chronological “chapters” corresponding to the dates of the offenses.

¶ 4 The primary issue at trial was the identity of the perpetrator. The State presented evidence that DNA from two of the murder victims was found on items seized from Goudeau's home pursuant to a search warrant; a ring belonging to another murder victim was found hidden in a shoe in Goudeau's closet; and Goudeau's DNA was found on one murder victim and several of the sexual assault victims. At trial, seven victims identified Goudeau as their assailant. One testified that he had seen Goudeau pointing a gun downward at a murder victim's body. An eighth victim identified Goudeau's voice from a voice lineup.

¶ 5 Based on toolmark analysis of bullets and shell casings, the State's ballistics expert testified that the same .380 caliber handgun was used for all nine murders and the other charged crimes in which shell casings were found. The gun, however, was never found.

¶ 6 Evidence at trial also revealed that many of the crimes reflected a similar modus operandi, including the perpetrator telling victims that he had just committed a robbery and needed to reunite with his friend; wearing the same disguise; and wiping off evidence from sexual assault victims and areas he had touched before leaving the crime scenes. Additionally, the perpetrator forced all sexual assault victims to walk or drive to a secluded area, gave many of them directions, threatened to shoot them unless they complied with his demands, and told them not to look at him.

¶ 7 After approximately seventy days of trial that spanned seven-and-a-half-months, the jury returned guilty verdicts on sixty-seven counts, including all nine first degree murder charges. For each murder conviction, the jury found in the aggravation phase that Goudeau had been previously convicted of a life imprisonment or death-eligible offense, A.R.S. § 13–751(F)(1), of a serious offense, A.R.S. § 13–751(F)(2), and that he was on release from prison when he committed the murders, A.R.S. § 13–751(F)(7)(a). The jury further found that Goudeau committed eight of the nine murders in an especially cruel manner, A.R.S. § 13–751(F)(6), and committed four of them while committing another murder, A.R.S. § 13–751(F)(8).

¶ 8 During the testimony of his first mitigation witness in the penalty phase, Goudeau waived any further mitigation and presented no further evidence. He did, however, make an allocution statement. The jury returned death verdicts on all nine murder charges. This automatic appeal followed.

II. SUMMARY OF THE THIRTEEN CHAPTERS

¶ 9 As noted above, the State divided the presentation of its guilt-phase evidence into thirteen chronological “chapters.” The facts of each chapter are briefly summarized below, with additional facts addressed where relevant to the issues raised on appeal.

Chapter 1: August 6, 2005

¶ 10 In the evening of August 6, 2005, armed with a silver handgun, Goudeau approached Jenny S., Sarah U., and Jesus F., all minors at the time, and told them he had just robbed a bank, needed directions, and was waiting for a “buddy” to give him a ride. At gunpoint, Goudeau ordered them to go to a dark, secluded area behind a church where he sexually assaulted Jenny and Sarah and then wiped them off with a towel before leaving the scene.

Chapter 2: September 8, 2005

¶ 11 On September 8, 2005, Georgia Thompson was found dead with a gunshot wound to her head in her apartment parking lot. A neighbor testified that she heard a woman scream, “leave me alone” followed by a gunshot, and another neighbor testified that he had also heard a woman scream that night.

Chapter 3: September 20, 2005

¶ 12 This chapter did not directly involve the charges in this case but addressed other crimes Goudeau committed that were relevant to show his identity as the perpetrator of the crimes here. The State introduced evidence of Goudeau's previous convictions of kidnapping, sexual assault, sexual abuse, and aggravated assault against sisters Lorena L. and Alejandra L., committed on September 20, 2005. We describe the facts underlying those convictions when addressing Goudeau's contention that the trial court erred by admitting that other-act evidence, infra ¶¶ 96–102.

Chapter 4: September 28, 2005

¶ 13 On September 28, 2005, Melissa C., Iselda H., and Martha H. were working at the take-out window of a restaurant when Goudeau pointed a gun at them and demanded money. The three women fled to an adjoining room while Goudeau reached into the window and grabbed Melissa's purse.

¶ 14 Moments later, Goudeau approached Margie M. and her twelve-year-old daughter, Bianca M., who were sitting in a car parked near the take-out window. Goudeau pointed a gun at Margie, got into the passenger seat behind her, ordered her and her daughter not to look at him, and demanded that Margie start driving. During the drive, Goudeau talked frequently, instructing them not to look at him and telling them that his “buddy” had left him behind. At some point during the drive, he demanded $20 from Margie and sexually assaulted Bianca. Eventually, Goudeau directed Margie to pull over behind a store where he ordered her and Bianca to get undressed. He ordered Margie outside the car where he sexually assaulted her. He then told her to drive back to an area near where he had first entered the car, and once there he demanded more money. Margie gave him her coin purse. Before leaving, Goudeau used the victims' clothing to wipe down areas in the car he had touched. He left Melissa C.'s purse in the car.

Chapter 5: November 3, 2005

¶ 15 On November 3, 2005, Goudeau entered a store where Teresa G. worked as a clerk, pointed a silver handgun at her head, and demanded money. Goudeau left the store after Teresa gave him money from the cash register.

¶ 16 Shortly thereafter, Goudeau approached Any P. in a parking lot across from the store where Teresa G. worked, pointed a silver handgun at her, and demanded that she give him a ride. Goudeau sat in the front passenger seat and ordered Any to drive up and down various streets. During the drive, Goudeau told her that he had just robbed a store and that his “buddy” had left him. He then ordered her to pull over in a quiet neighborhood where he demanded that she undress, and then he sexually assaulted her. Afterward, Goudeau ordered Any to spit on her hand and rub it on the areas of her body that he had touched. Goudeau then told her to drive back to an area near the store where he had first encountered her; he took her purse and cash before leaving.

Chapter 6: November 7, 2005

¶ 17 On November 7, 2005, Alfredo L. was standing in his restaurant with two employees, Marisol L. and Iris H., when Goudeau entered, brandished a silver handgun, and demanded money. Marisol and Iris fled to the back of the restaurant while Alfredo gave Goudeau money from the cash register. Goudeau then demanded and took a wallet from Mauricio O., a customer standing by the cash register. After Goudeau left, Alfredo went outside and saw Goudeau enter an adjacent restaurant.

¶ 18 At the second restaurant, Goudeau pointed a silver gun at Maria L. and Jesus L., who were working the cash register, and demanded money. Jesus complied. After leaving the second restaurant, Goudeau approached Cheryl M., her mother, and her two young children, who were just getting out of a nearby car. Goudeau pointed his handgun at Cheryl and her mother and attempted to grab the mother's purse. After Cheryl told him they did not have any money, Goudeau fired a round in the air and ran off without the purse. As he did so, Mauricio O. and Pedro M., customers from the first restaurant, chased Goudeau but stopped when he shot at them.

Chapter 7: December 12, 2005

¶ 19 On December 12, 2005, Peter O. was preparing to leave work when he heard “a couple of bangs” coming from an alley behind his building. When he stepped into the alley, he saw Goudeau holding a silver gun pointed at a body on the ground. Goudeau then pointed the gun at Peter, who heard a click. Peter rushed back into the building and locked the door. The body was later identified as that of Tina Washington, who had been fatally shot in the head. Jewelry that Washington had been wearing earlier was absent...