State v. Gutierrez

• Decision Date: 27 June 2012
• Docket Number: No. CR–11–0314–PR.,CR–11–0314–PR.
• Parties: STATE of Arizona, Respondent, v. Phil Osuna GUTIERREZ, Petitioner.
• Court: Arizona Supreme Court

229 Ariz. 573

278 P.3d 1276

637 Ariz. Adv. Rep. 7

STATE of Arizona, Respondent,

v.Phil Osuna GUTIERREZ, Petitioner.

No. CR–11–0314–PR.

Supreme Court of Arizona,

En Banc.

June 27, 2012.

William G. Montgomery, Maricopa County Attorney by Diane Meloche, Appeals Bureau Chief, Phoenix, Attorneys for the State of Arizona.

Quarles & Brady LLP by Isaac M. Gabriel, Phoenix, Attorney for Phil Osuna Gutierrez.

OPINION

PELANDER, Justice.

[229 Ariz. 574]¶ 1 The issue presented is whether the superior court must hold an evidentiary hearing when the results of postconviction DNA testing conducted under A.R.S. § 13–4240 are favorable to the petitioner. We hold that, although the court must hold a hearing, an evidentiary hearing is not necessarily required.

I.

¶ 2 In April 1998, four members of the West Side Guadalupe gang—Reyes, Coronado, Isidro, and Cupis—drove in Reyes's car to the east side of Guadalupe. They stopped at a party of a rival gang, East Side Guadalupe, and a rock-throwing altercation ensued. After Reyes was struck in the head, the four men left to “look for friends” and drove to the house of Phil Gutierrez, a fellow West Side Guadalupe gang member.

¶ 3 Gutierrez was not home. Coronado and Cupis left Reyes and Isidro and drove to a different party, where they found Gutierrez. The three left together in Reyes's car. Coronado drove, Gutierrez rode in the front passenger seat, and Cupis rode in the back seat. They returned to the east side and as they drove past the party, someone in the car fired a .22–caliber rifle out the passenger-side window at the partygoers. James Casias was shot in the head and later died from the wound.

¶ 4 After the shooting, a sheriff's deputy pursued Reyes's car. Coronado crashed the car into a pole, and he and Cupis fled. Gutierrez hit his head on the windshield during the crash and remained in the front passenger seat. He was arrested at the scene. Police found Cupis shortly thereafter and apprehended Coronado several days later. The murder weapon was never found. Near the scene of the crash, on the ground along the route Cupis took when he fled, police found a black cap bearing the West Side Guadalupe insignia.

¶ 5 Gutierrez, Coronado, and Cupis were each charged with second-degree murder, and their trials were severed. Before Gutierrez's trial, Cupis wrote a letter to the prosecutor claiming he had fired the shots and had lied to police when he had previously indicated thAt gutierrez was the shooter. Cupis attempted to plead guilty, but his counsel objected, arguing that Cupis's confession was contrary to the physical evidence and expressing his belief that Gutierrez was intimidating or coercing Cupis. The prosecutor concurred that the physical evidence would not support Cupis's plea. The court declined to accept Cupis's change of plea until after Gutierrez's trial to ensure he was not being coerced by Gutierrez.

¶ 6 At that trial, the State's theory was that Gutierrez had fired the gun. The State elicited evidence that Gutierrez was riding in the front passenger seat when the shooting occurred and that testing of his hands at the crash scene revealed gunshot residue. An expert testified that gunshot residue permeates the area within four feet of a gun upon firing. Cupis was not tested for gunshot residue.

¶ 7 The State argued at trial that the shooting was gang-related, eliciting evidence that the initial rock-throwing altercation occurred between rival gangs, that Gutierrez's friends looked for him after the altercation, that Gutierrez had a West Side Guadalupe tattoo and was a known gang member, and that the black cap had a West Side Guadalupe logo.

¶ 8 The State also presented Gutierrez's inconsistent statements to the police. Gutierrez did not testify, but the defense argued that he had gone with Cupis and Coronado to get beer for the party he was attending and that Cupis, from his position in the back seat, had fired the weapon. The defense also argued that Gutierrez was merely present and had no idea the shooting would happen.

¶ 9 The victim's sister had told police shortly after the shooting that she was sure Coronado was the gunman, but she testified at trial that she did not actually see the shooter and had assumed it was Coronado because he was riding in the passenger seat during the initial rock-throwing incident. Another witness testified that the gunman had a bandana over his face and was wearing a black cap.

¶ 10 The black cap found near the crash scene was admitted into evidence. Based on jurors' questions, the trial court asked the investigating detective whether that cap had been tested for hairs, and the detective responded that he did not observe any hairs. During closing, the prosecutor argued that it was unclear to whom the cap belonged, but that it showed gang affiliation.

¶ 11 The jury was instructed on second-degree murder and reckless manslaughter. It was also instructed on accomplice liability and on Gutierrez's mere presence defense. During deliberations, the jurors asked the court whether a second-degree murder conviction required them to find that Gutierrez was the gunman. With the parties' consent, the court told the jurors that Gutierrez did not have to be the shooter if they found beyond a reasonable doubt that he was an accomplice of another person, and referred them to the accomplice liability and mere presence instructions.

¶ 12 The jury found Gutierrez guilty of second-degree murder. Before sentencing, the same trial judge accepted Cupis's change of plea. At Gutierrez's sentencing hearing, the court took judicial notice of Cupis's guilty plea and his earlier letter to the prosecutor. Gutierrez was sentenced to nineteen years' imprisonment, the minimum sentence the court could have imposed, given Gutierrez's release status at the time of the offense, seeA.R.S. § 13–604.02(A) (1998) (current version at § 13–708(A)), and the additional three years required for felony offenses committed with intent to further criminal conduct by a criminal street gang, seeA.R.S. § 13–604(T) (1998) (current version at § 13–709.02).

¶ 13 Gutierrez's conviction and sentence were affirmed on appeal. State v. Gutierrez, 1 CA–CR 00–0409 (Ariz.App. Apr. 17, 2001) (mem. decision). Gutierrez did not challenge the sufficiency of the evidence supporting his conviction or any jury instructions.

¶ 14 The judge who presided over Gutierrez's trial denied his first petition for postconviction relief in 2002. In that petition, Gutierrez argued the court erred by not allowingCupis to plead guilty before his trial and by refusing to allow Cupis and Coronado to testify at his sentencing. The court found those issues precluded because Gutierrez did not raise them on direct appeal, but nonetheless rejected the arguments on the merits because the court had taken judicial notice of Cupis's confession and change of plea at Gutierrez's sentencing. The court also addressed Gutierrez's argument that Cupis was the shooter, stating that “[e]ven if the jurors had determined that [Gutierrez] was not the shooter, they would still have returned a guilty verdict based upon accomplice liability.” Similarly, the court found Gutierrez's request for a judgment of acquittal precluded and “ frivolous, as the State presented substantial evidence of [his] guilt.”

¶ 15 In 2007, hair and a sweat stain were found on the black cap. Gutierrez successfully petitioned the superior court for DNA testing under § 13–4240(B). The test results revealed that the hair belonged to Cupis and that the stain was “a mixture of at least three individuals,” including Cupis, but excluding Gutierrez and Coronado. Gutierrez later filed a petition for postconviction relief and requested an evidentiary hearing. He argued that he was entitled to postconviction relief under Rule 32.1(e), contending that the newly discovered DNA evidence probably would have changed the verdict or sentence, and under Rule 32.1(h), contending that the DNA evidence demonstrated he was actually innocent. Gutierrez also asserted that his conviction could not be sustained on an accomplice liability theory because the State argued at trial only that he was the shooter, not an accomplice, and the evidence did not support a conviction as an accomplice. SeeA.R.S. §§ 13–301, –303.

¶ 16 After receiving the State's response to the Rule 32 petition and Gutierrez's reply, the superior court held a status conference. The judge indicated that he scheduled the conference because a hearing was statutorily required. When asked what he intended to show at an evidentiary hearing, Gutierrez indicated that the parties would likely stipulate to the entry of the DNA results and to the transcripts of Coronado's and Gutierrez's trials, but said that he would also seek to introduce Cupis's change of plea transcript and letters Coronado and Cupis had written identifying Cupis as the shooter, and that he might call Cupis, Coronado, and Gutierrez to testify.

¶ 17 In late 2009, the superior court denied postconviction relief in a ruling that stated:

The parties stipulated that the newly discovered evidence, results of DNA testing, were not in dispute and that no further evidentiary hearing was necessary. The parties did, however, dispute the legal disposition of this matter based on that evidence.

The court found that “[t]he only matter[s] that could be considered newly discovered are the results of the DNA testing,” not Cupis's repeated confessions. “Under the circumstances and given the quantum of evidence,” the court concluded that the DNA evidence was not exculpatory because “at best it would only show that [Gutierrez] did not wear the cap.” Although the State had argued at trial that Gutierrez was the shooter and a witness had testified that the shooter wore a black cap, the DNA results would not likely have affected the verdict, the court concluded, because there was substantial evidence of accomplice liability. Finally, the court noted that the sentencing judge...