State v. Gunches

Decision Date01 September 2016
Docket NumberNo. CR–13–0282–AP,CR–13–0282–AP
Citation240 Ariz. 198,377 P.3d 993
PartiesState of Arizona, Appellee, v. Aaron Brian Gunches, Appellant.
CourtArizona Supreme Court

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

Stephen J. Whelihan (argued), Deputy Public Advocate, Maricopa County Office of the Public Advocate, Phoenix; and Louise Stark, Deputy Public Defender, Maricopa County Office of the Public Defender, Phoenix, Attorneys for Aaron Brian Gunches

VICE CHIEF JUSTICE PELANDER authored the opinion of the Court, in which CHIEF JUSTICE BALES and JUSTICES BRUTINEL, TIMMER, and BOLICK joined.

VICE CHIEF JUSTICE PELANDER, opinion of the Court:

¶ 1 Aaron Brian Gunches was convicted of first degree murder and kidnapping and was sentenced to death. On appeal, we remanded for a new penalty phase trial on the murder conviction. State v. Gunches (Gunches I ), 225 Ariz. 22, 27 ¶ 26, 234 P.3d 590, 595 (2010). A jury again returned a death verdict. This Court has jurisdiction over this automatic appeal pursuant to article 6, section 5(3), of the Arizona Constitution and A.R.S. §§ 13–755 and 13–4031. We affirm.

I. BACKGROUND

¶ 2 Gunches was charged with the first degree murder and kidnapping of Ted Price committed in late 2002. The State noticed its intent to seek the death penalty. After the trial court found Gunches competent to stand trial and to waive his right to counsel, Gunches chose to represent himself. He later pleaded guilty to both counts.

¶ 3 During the aggravation phase, Gunches stipulated that he had been convicted of a serious offense (attempted murder), which is an aggravating circumstance under A.R.S. § 13–751(F)(2). The jury also found as an aggravating circumstance under § 13–751(F)(6) that Gunches committed the murder in an especially heinous or depraved manner. Gunches presented virtually no mitigation evidence in the penalty phase, but he did request leniency in allocution. The jury determined that he should be sentenced to death.

¶ 4 On direct appeal, this Court affirmed Gunches's convictions and the kidnapping sentence. Gunches I , 225 Ariz. at 27 ¶ 26, 234 P.3d at 595. Concluding that the jury's finding of the (F)(6) aggravating factor was error, however, we vacated Gunches's death sentence and remanded for a new penalty phase proceeding. Id. On remand, Gunches again waived his right to counsel and decided to not present any mitigation evidence. He did not request leniency in allocution. Again, the jury determined that Gunches should be sentenced to death. His automatic appeal to this Court followed.1

II. DISCUSSION
A. Self–Representation in the Penalty Phase

¶ 5 Gunches argues that the trial court fundamentally erred in allowing him to represent himself during the penalty phase on remand. We are unpersuaded and find no error, let alone fundamental error. See State v. Henderson , 210 Ariz. 561, 568 ¶ 23, 115 P.3d 601, 608 (2005) (under fundamental error standard of review, defendant “must first prove error”).

¶ 6 The Sixth Amendment to the United States Constitution states, [i]n all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense.” Under both the federal and Arizona constitutions, a defendant has a right to waive representation by counsel. State v. Dann , 220 Ariz. 351, 359 ¶ 13, 207 P.3d 604, 612 (2009) (citing U.S. Const. amends. VI, XIV ; Ariz. Const. art. 2, § 24 ); see also Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (recognizing a defendant's Sixth Amendment right to conduct his own defense). In Faretta, the Court held that the Sixth Amendment grants the concomitant right to self-representation in a state criminal trial. 422 U.S. at 807, 95 S.Ct. 2525. It noted that the amendment's “language and spirit” implied a right to self-representation, and that counsel was to “be an aid to a willing defendant—not an organ of the State interposed between an unwilling defendant and his right to defend himself personally.” Id. at 819–20, 95 S.Ct. 2525. Further, the Court pointed out that “the colonists and the Framers, as well as their English ancestors, always conceived of the right to counsel as an ‘assistance’ for the accused, to be used at his option, in defending himself.” Id. at 832, 95 S.Ct. 2525.

¶ 7 This Court has repeatedly recognized a competent capital defendant's Sixth Amendment right to self-representation during the sentencing phase. See, e.g. , State v. Dixon , 226 Ariz. 545, 556 ¶ 62, 250 P.3d 1174, 1185 (2011) ; State v. Bearup , 221 Ariz. 163, 173 ¶ 56, 211 P.3d 684, 694 (2009) ; Dann , 220 Ariz. at 358 ¶ 10, 207 P.3d at 611 ; State v. Kayer , 194 Ariz. 423, 436 ¶ 44, 984 P.2d 31, 44 (1999) ; State v. Henry (Henry II ), 189 Ariz. 542, 550, 944 P.2d 57, 65 (1997) ; State v. Henry (Henry I ), 176 Ariz. 569, 585, 863 P.2d 861, 877 (1993) ; State v. Williams , 166 Ariz. 132, 134, 800 P.2d 1240, 1242 (1987) ; State v. Harding , 137 Ariz. 278, 291, 670 P.2d 383, 396 (1983). Our position is consistent with that of the United States Supreme Court and several other jurisdictions. See, e.g. , Price v. Johnston , 334 U.S. 266, 285, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948), abrogated in part by McCleskey v. Zant , 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) ; Adams v. United States ex rel. McCann , 317 U.S. 269, 279–80, 63 S.Ct. 236, 87 L.Ed. 268 (1942) ; Snyder v. Massachusetts , 291 U.S. 97, 106, 54 S.Ct. 330, 78 L.Ed. 674 (1934) ; United States v. Davis , 285 F.3d 378, 384 (5th Cir. 2002) ; Silagy v. Peters , 905 F.2d 986, 1007 (7th Cir. 1990) ; United States v. Plattner , 330 F.2d 271, 274 (2d Cir. 1964) ; California v. Blair , 36 Cal.4th 686, 31 Cal.Rptr.3d 485, 115 P.3d 1145, 1177 (2005) ; Illinois v. Coleman , 168 Ill.2d 509, 214 Ill.Dec. 212, 660 N.E.2d 919, 937 (1995) ; Sherwood v. Indiana , 717 N.E.2d 131, 135 (Ind. 1999) ; South Carolina v. Brewer , 328 S.C. 117, 492 S.E.2d 97, 99 (1997).

¶ 8 As long as the defendant “knowingly, intelligently, and voluntarily waived his right to counsel,” he may properly “represent[ ] himself during the penalty phase.” Bearup , 221 Ariz. at 173 ¶ 56 n.3, 211 P.3d at 694 n.3. These conditions were met at Gunches's first trial, Gunches I , 225 Ariz. at 24–25 ¶¶ 8–12, 234 P.3d at 592–93, and again at his penalty phase retrial.

¶ 9 After repeatedly finding Gunches competent, the trial court granted his request to represent himself during the penalty phase. (Gunches has not challenged the trial court's competency findings.) The court, however, expressed its concern that Gunches was not attempting to avoid the death penalty. Against the strong advice of the court and counsel, Gunches nonetheless insisted on representing himself.

¶ 10 Gunches first argues that a capital case's penalty phase is not a “criminal prosecution,” and therefore the Sixth Amendment right to self-representation does not apply during that phase. We disagree. The Sixth Amendment right to counsel extends to all critical stages of the criminal process. Iowa v. Tovar , 541 U.S. 77, 80–81, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004) ; State v. Moody , 208 Ariz. 424, 445 ¶ 65, 94 P.3d 1119, 1140 (2004). And [a] capital trial comprises just one trial, divided into guilt and sentencing phases, and has always been understood as such, by this court and by the U.S. Supreme Court.” State v. Ring , 204 Ariz. 534, 554 ¶ 50 n.19, 65 P.3d 915, 935 n.19 (2003). Conversely, a capital defendant's right to self-representation exists from arraignment through the direct appeal. See State v. Lamar , 205 Ariz. 431, 435–36 ¶ 22, 72 P.3d 831, 835–36 (2003) (acknowledging a defendant's right to self-representation under the Arizona Constitution as beginning before the jury is empaneled); see also Coleman v. Johnsen , 235 Ariz. 195, 196 ¶ 1, 330 P.3d 952, 953 (2014) (recognizing a defendant's right to self-representation on appeal pursuant to the Arizona Constitution).

¶ 11 Gunches's reliance on State v. McGill is misplaced because there, this Court narrowly and specifically held that the Sixth Amendment's Confrontation Clause does not apply to rebuttal testimony at a capital sentencing hearing. 213 Ariz. 147, 158–59 ¶¶ 47–52, 140 P.3d 930, 941–42 (2006) ; see Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (interpreting the Confrontation Clause). Our reasoning that “the penalty phase is not a criminal prosecution,” McGill , 213 Ariz. at 159 ¶ 52, 140 P.3d at 942, did not involve or address the well-established right to self-representation during sentencing. Since McGill, this Court (including in Gunches I ) has upheld a capital defendant's waiver of counsel for his resentencing proceeding, noting that [s]elf-representation is a ‘fundamental constitutional right.’ Dann , 220 Ariz. at 359 ¶ 16, 207 P.3d at 612 (quoting Montgomery v. Sheldon , 181 Ariz. 256, 259, 889 P.2d 614, 617 (1995) ); see also Dixon , 226 Ariz. at 556 ¶ 62, 250 P.3d at 1185 ; Bearup , 221 Ariz. at 173 ¶ 56, 211 P.3d at 694. McGill does not alter our conclusion that the Sixth Amendment right to have or waive counsel applies to capital sentencing proceedings. Cf. Betterman v. Montana , ––– U.S. ––––, 136 S.Ct. 1609, 1613 & n.2, 194 L.Ed.2d 723 (2016) (holding that the Sixth Amendment's Speedy Trial Clause “detaches upon conviction,” but reserving the question of whether that clause “applies to bifurcated proceedings” such as capital cases, and not addressing a defendant's constitutional right to waive counsel).

¶ 12 Gunches also asserts that the State's interest in the fairness and reliability of the penalty phase precluded his self-representation. He argues “the independent societal interest in the fair administration of justice has been found to outweigh even the right of the accused to counsel of his choice enshrined in the Sixth...

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