State v. Granados

• Decision Date: 05 August 2014
• Docket Number: No. 2 CA–CR 2013–0206.,2 CA–CR 2013–0206.
• Citation: 332 P.3d 68,235 Ariz. 321,692 Ariz. Adv. Rep. 10
• Parties: The STATE of Arizona, Appellee, v. Crispin GRANADOS, Appellant.
• Court: Arizona Court of Appeals

235 Ariz. 321

332 P.3d 68

692 Ariz. Adv. Rep. 10

The STATE of Arizona, Appellee,

v.Crispin GRANADOS, Appellant.

No. 2 CA–CR 2013–0206.

Court of Appeals of Arizona, Division 2.

Aug. 5, 2014.

Thomas C. Horne, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel,Phoenix, By Alan L. Amann, Assistant Attorney General, Tucson, for Appellee.

Barton & Storts, P.C., By Brick P. Storts, III, Tucson, for Appellant.

Judge HOWARD authored the opinion of the Court, in which Judge VÁSQUEZ and Judge MILLER concurred.

OPINION

HOWARD, Judge.

¶ 1 After a jury trial, Crispin Granados was convicted of kidnapping, second-degree burglary, two counts of sexual assault, aggravated assault, and aggravated harassment. On appeal, he argues the trial court displayed judicial bias and erred in some of its evidentiary rulings.¹ For the following reasons, we affirm.

Factual and Procedural Background

¶ 2 We view the evidence in the light most favorable to upholding the convictions. State v. Pena, 233 Ariz. 112, ¶ 2, 309 P.3d 936, 938 (App.2013). In September 2010, P.L., at the time approximately seventy-two years old, went outside to feed her dog. Granados grabbed her, threw her against the wall several times, and told her that “he was going to suffocate [her] with [his] jacket.” Granados took P.L. inside the house and continued hitting her. He then took P.L. into her bedroom and sexually assaulted her.

¶ 3 Granados remained in the house for the next two days; he continually watched P.L. to ensure she did not leave, disconnected her telephones, threatened her, threatened to kidnap her grandchildren and kill her children if she told anyone about him, did not allow her to eat, and allowed her to have only one glass of water. During that time, Granados continued to physically assault P.L. and sexually assaulted her two more times.

¶ 4 On the third day, P.L. told Granados she would lift an injunction against harassment she had obtained against him before this incident if he allowed her to go to a previously scheduled doctor's appointment, and Granados agreed. P.L. met her daughter at the doctor's office, told her what had happened, and they reported it to the police.

¶ 5 Granados was charged and convicted as noted above. He was sentenced to aggravated, enhanced, concurrent and consecutive terms of imprisonment totaling twenty years.

Judicial Bias

¶ 6 Granados argues that because the trial court removed him from the courtroom during part of voir dire and sustained objections during his testimony later in the trial, the court infected the trial with an appearance of bias. Granados contends he is entitled to structural error review, which does not require a defendant to object at the trial level. See State v. Ring, 204 Ariz. 534, ¶ 46, 65 P.3d 915, 933 (2003); State v. Valverde, 220 Ariz. 582, ¶ 10, 208 P.3d 233, 235–36 (2009).

¶ 7 Structural error is error so serious that it “ ‘deprive[s] defendants of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence’ ” and, if found, is prejudicial per se and requires reversal. Valverde, 220 Ariz. 582, ¶ 10, 208 P.3d at 235, quoting Ring, 204 Ariz. 534, ¶ 45, 65 P.3d at 933 (alterations in Valverde ). In Ring, our supreme court stated that the United States Supreme Court defined “a biased trial judge” as one of the “relatively few instances in which we should regard error as structural.” 204 Ariz. 534, ¶ 46, 65 P.3d at 933.

¶ 8 In Ring, the court cited Tumey v. Ohio, 273 U.S. 510, 523, 47 S.Ct. 437, 71 L.Ed. 749 (1927) for the proposition that judicial bias constitutes structural error. Id. In Tumey, the Supreme Court found that it “violates the Fourteenth Amendment and deprives a defendant in a criminal case of due process of law to subject his liberty or property to the judgment of a court, the judge of which has a direct, personal, substantial pecuniaryinterest in reaching a conclusion against him.” 273 U.S. at 523, 47 S.Ct. 437. However, the Court further stated that “[a]ll questions of judicial qualification may not involve constitutional validity. Thus matters of kinship, personal bias, state policy, remoteness of interest would seem generally to be matters merely of legislative discretion.” Id. Rather, it is only bias reflecting a “direct, personal, substantial pecuniary interest,” id., that constitutes a “structural defect affecting the framework within which the trial proceeds.” Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).

¶ 9 Similarly, in Caperton v. A.T. Massey Coal Co., the Supreme Court concluded that whether bias rises to the constitutionally impermissible level is grounded in the “maxim that ‘[n]o man is allowed to be a judge in his own cause; because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.’ ” 556 U.S. 868, 876, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009), quoting The Federalist No. 10, at 59 (James Madison) (J. Cooke ed.1961). To determine whether bias meets the objective standard due process requires, “the Court has asked whether, ‘under a realistic appraisal of psychological tendencies and human weakness,’ the interest ‘poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.’ ” Id. at 883–84, 129 S.Ct. 2252, quoting Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975).

¶ 10 Under that high standard, the Court has found judicial recusal constitutionally required only in “rare instances.” Id. at 890, 129 S.Ct. 2252. For example, when the judge had a “financial interest in the outcome of a case” or “in the criminal contempt context, where a judge had no pecuniary interest in the case but was challenged because of a conflict arising from his participation in an earlier proceeding” that suggested he had a strong interest in the outcome. Id. at 876–81, 129 S.Ct. 2252. To this short list, the Court added those cases in which “a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent.” Id. at 884, 129 S.Ct. 2252. As the Court pointed out, these types of cases “deal[ ] with extreme facts that create an unconstitutional probability of bias.” Id. at 887, 129 S.Ct. 2252.

¶ 11 Therefore, although Ring and Valverde generically refer to “judicial bias” as structural error, the defendant must allege a type of bias that would implicate his due process rights, such as bias based on a “direct, personal, substantial pecuniary interest,” in order to constitute such error. Tumey, 273 U.S. at 523, 47 S.Ct. 437; Fulminante, 499 U.S. at 309–10, 111 S.Ct. 1246; see also Caperton, 556 U.S. at 876–77, 129 S.Ct. 2252. Other types of bias, such as “[p]ersonal bias or prejudice, ... ‘would not be [a] sufficient basis for imposing a constitutional requirement under the Due Process Clause’ ” and thus do not require structural error review. Caperton, 556 U.S. at 877, 129 S.Ct. 2252, quoting Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 820, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986).

¶ 12 Here, Granados's allegations of bias are based solely on the trial judge's rulings and admonishments to him regarding his behavior in the courtroom. He does not allege bias or the objective potential for bias based on the judge's “direct, personal, substantial pecuniary interest” or other strong personal interest in the outcome of the case. See Tumey, 273 U.S. at 523, 47 S.Ct. 437. Accordingly, Granados is not entitled to structural error review. See Valverde, 220 Ariz. 582, ¶ 10, 208 P.3d at 235–36; Caperton, 556 U.S. at 876–81, 129 S.Ct. 2252.

¶ 13 As we have noted above, states are allowed to impose more rigorous standards for judicial recusal than that required by due process. Caperton, 556 U.S. at 889–90, 129 S.Ct. 2252. “[M]atters of kinship, personal bias, state policy, remoteness of interest,” for example, are ordinarily within the purview of the state. Tumey, 273 U.S. at 523, 47 S.Ct. 437. In Arizona, defendants are “entitled to a change of judge if a fair and impartial hearing or trial cannot be had by reason of the interest or prejudice of the assigned judge.” Ariz. R.Crim. P. 10.1(a). If a defendant fails to object on the basis of a trial judge's bias below by filing a motion and affidavit pursuant to Rule 10.1, he forfeits review for all but fundamental, prejudicial error. State v. Curry, 187 Ariz. 623, 631, 931 P.2d 1133, 1141 (App.1996); Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d at 607. Thus, because Granados is alleging the appearance of bias based on judicial rulings, and not bias based on constitutionally impermissible grounds, he has forfeited the argument for all but fundamental, prejudicial error because he failed to file a motion pursuant to Rule 10.1 below. See Curry, 187 Ariz. at 631, 931 P.2d at 1141.

¶ 14 “ ‘A trial judge is presumed to be free of bias and prejudice.’ ” State v. Ramsey, 211 Ariz. 529, ¶ 38, 124 P.3d 756, 768 (App.2005), quoting State v. Hurley, 197 Ariz. 400, ¶ 24, 4 P.3d 455, 459 (App.2000). “Bias and prejudice means a hostile feeling or spirit of ill-will, or undue friendship or favoritism” toward one of the parties. State v. Myers, 117 Ariz. 79, 86, 570 P.2d 1252, 1259 (1977). Judicial bias or prejudice ordinarily must “ ‘arise from an extrajudicial source and not from what the judge has done in his participation in the case.’ ” State v. Emanuel, 159 Ariz. 464, 469, 768 P.2d 196, 201 (App.1989), quoting State v. Thompson, 150 Ariz. 554, 557, 724 P.2d 1223, 1227 (App.1986). Thus, “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994); see also State v. Ellison, 213 Ariz. 116, ¶ 40, 140 P.3d 899, 912 (20...