State v. Hardy

• Decision Date: 16 August 2012
• Docket Number: No. CR–09–0224–AP.,CR–09–0224–AP.
• Citation: 283 P.3d 12,641 Ariz. Adv. Rep. 38,230 Ariz. 281
• Parties: STATE of Arizona, Appellee, v. Rodney Eugene HARDY, Appellant.
• Court: Arizona Supreme Court

230 Ariz. 281

283 P.3d 12

641 Ariz. Adv. Rep. 38

STATE of Arizona, Appellee,

v.Rodney Eugene HARDY, Appellant.

No. CR–09–0224–AP.

Supreme Court of Arizona, En Banc.

Aug. 16, 2012.

Thomas C. Horne, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section, Julie A. Done, Assistant Attorney General, Phoenix, Attorneys for the State of Arizona.

Droban & Company PC by Kerrie M. Droban, Anthem, Attorney for Rodney Eugene Hardy.

OPINION

PELANDER, Justice.

¶ 1 A jury found Rodney Hardy guilty of first degree burglary, kidnapping, and two counts of first degree murder.He was sentenced to death on both murder counts and to prison terms on the other counts.We have jurisdiction over his appeal under Article 6, Section 5(3) of the Arizona ConstitutionandA.R.S. § 13–4031(Supp.2011).¹

I.FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 On Thursday, August 25, 2005, Hardy's wife Tiffany Lien called her friend Meleigha and said she needed a place to stay.²Meleigha told Tiffany that she could move in with her, but Tiffany did not stay with her that night.

¶ 3 The next day, Hardy slapped Tiffany, and she left their apartment.That afternoon, Hardy asked his son to keep Hardy's gun because “he didn't need any drama,” but Hardy retrieved the gun that night.Hardy also went to a club that evening and told the bartender, “my baby is gone,” and he“could kill them both.”That same night, Tiffany went out with Meleigha, Julius, and Don.Tiffany and Don were romantically involved.

¶ 4 Hardy left a message on Meleigha's cell phone shortly after midnight on Saturday, August 27, saying that he knew where Tiffany was, whom she was with, and what vehicle they were driving.When Hardy called again, Meleigha handed the phone to Tiffany, and Hardy and Tiffany argued.During that call or a subsequent one, Tiffany handed the phone to Don, who also argued with Hardy.

¶ 5 Later that weekend, Hardy visited his friend Krystal.He was intoxicated and upset, saying “she's gone and I don't know what to do,” and “it's too late for her to come back.”

¶ 6 On Sunday, August 28, shortly after midnight, Meleigha, Julius, Tiffany, and Don went to Meleigha's apartment.Eventually, Meleigha and Julius went to Meleigha's bedroom, and Tiffany and Don went to a second bedroom further down the hall.

¶ 7 At approximately 4 a.m., Meleigha went outside and downstairs to a vending machine.While she was there, Hardy came up behind her and then pushed her up the stairs and into her apartment.He followed and headed down the hallway.When Hardy paused at the first bedroom door, Meleigha shouted, “That's my boyfriend.”Hardy continued to the second bedroom, opened the door, cocked a gun, and started shooting.Julius and Meleigha ran out of the apartment, hearing several shots as they fled.

¶ 8 When police arrived at Meleigha's apartment, Tiffany and Don were unresponsive.Tiffany had been shot twice, once in the head and once in the neck.Don had been shot several times—in his left hand, both shoulders, chest, and forehead.Both died at the scene.

¶ 9 On Monday, August 29, Hardy turned himself in to police.He was indicted on two counts of first degree murder, first degree burglary, attempted kidnapping of Tiffany, and kidnapping of Meleigha.The State later dropped the attempted kidnapping charge.Hardy testified at trial and admitted that he shot Tiffany and Don, but claimed that he committed manslaughter in the heat of passion, not first degree murder.

¶ 10 The jury returned guilty verdicts on all counts and found two aggravating circumstances under A.R.S. § 13–751:(F)(2)(prior serious offense), and (F)(8)(multiple homicides).After finding Hardy's mitigation not sufficiently substantial to call for leniency, the jury determined that death was the appropriate sentence for each of the murders.The trial court also sentenced Hardy to two consecutive sentences of life imprisonment with the possibility of parole after twenty-five years for the kidnapping and burglary convictions.

II.ISSUES ON APPEAL

A.Jury selection

¶ 11 Hardy argues that the trial court erred in denying his challenges, based on Batson v. Kentucky,476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69(1986), to the State's peremptory strikes of two minority jurors.We review for clear error.State v. Gallardo,225 Ariz. 560, 565 ¶ 10, 242 P.3d 159, 164(2010).

¶ 12 Racially discriminatory use of a peremptory strike violates the Equal Protection Clause of the Fourteenth Amendment.Batson,476 U.S. at 89, 106 S.Ct. 1712.³A Batson challenge involves three steps: (1)The defendant must make a prima facie showing of discrimination, (2)the prosecutor must offer a race-neutral reason for each strike, and (3)the trial court must determine whether the challenger proved purposeful racial discrimination.Gallardo,225 Ariz. at 565 ¶ 11, 242 P.3d at 164.In the third step, the trial court evaluates the striking party's credibility, considering the demeanor of the striking attorney and the excluded juror to determine whether the race-neutral rationale is a pretext for discrimination.Snyder v. Louisiana,552 U.S. 472, 477, 128 S.Ct. 1203, 170 L.Ed.2d 175(2008).“Although not dispositive, the fact that the state accepted other minority jurors on the venire is indicative of a nondiscriminatory motive.”Gallardo,225 Ariz. at 565 ¶ 13, 242 P.3d at 164(internal quotation marks and alterations omitted).

¶ 13 By asking the prosecutor to give race-neutral reasons for striking minority Jurors 10 and 29, the trial court implicitly found that Hardy made a prima facie showing of discrimination.The prosecutor said he struck Juror 10 because he believed that (a)she was predisposed to favor a life sentence based on long-held beliefs that had only recently changed, and (b) her brothers' drug addictions could make her sympathetic to Hardy's mitigation relating to familial drug abuse.Hardy argued that a non-minority juror was similarly situated and not stricken.The prosecutor distinguished the non-minority juror, who did not have a strong opinion on the death penalty and whose father had been convicted of possessory drug crimes and, according to that juror, had been treated fairly by the state.

¶ 14The prosecutor stated that he struck Juror 29 because she previously had been adamantly opposed to the death penalty, was combative with the prosecutor, believed a person could not put feelings aside, cringed at the phrase “an eye for an eye,” and expressed a preference for a life sentence.Again, Hardy argued that a non-minority juror was similarly situated and yet was not stricken.The prosecutor distinguished that non-minority juror, who merely wished the death penalty were not needed, but did not expressly oppose it.Additionally, the record does not suggest that the non-minority juror was combative with anyone or recoiled at any point during voir dire.

¶ 15The trial court found no “pattern of racial presence [sic] or exclusion,” noting that the defense struck five minority jurors while the State struck only two.Additionally, three minority jurors remained on the panel.The trial court did not clearly err in rejecting Hardy's Batson challenges.

B.Guilt phase1.Sufficiency of the evidence

¶ 16 On the two murder counts, the State argued that Hardy was guilty of both premeditated and felony murder.At the close of the State's case in chief, Hardy moved for a judgment of acquittal on the kidnapping and burglary charges, which also served as the predicate offenses for the felony murder theory.He also moved for a judgment of acquittal on felony murder, arguing that the State failed to prove that he committed the shootings to further the kidnapping or burglary.Hardy argues that the trial court erred in denying those motions.

¶ 17 A judgment of acquittal is appropriate “if there is no substantial evidence to warrant a conviction.”Ariz. R.Crim. P. 20(a);seeState v. West,226 Ariz. 559, 561 ¶ 8, 562 ¶ 14, 250 P.3d 1188, 1190, 1191(2011).“Substantial evidence is that which reasonable persons could accept as sufficient to support a guilty verdict beyond a reasonable doubt.”State v. Davolt,207 Ariz. 191, 212 ¶ 87, 84 P.3d 456, 477(2004).We review the denial of a motion for a judgment of acquittal de novo, viewing the evidence in the light most favorable to sustaining the verdict.West,226 Ariz. at 562 ¶ 15, 250 P.3d at 1191.

a. Kidnapping

¶ 18“A person commits kidnapping by knowingly restraining another person with the intent to ... aid in the commission of a felony.”A.R.S. § 13–1304(A)(3).“ ‘Restrain’ means to restrict a person's movements without consent, without legal authority, and in a manner [that] interferes substantially with such person's liberty, by ... moving such person from one place to another....Restraint is without consent if it is accomplished by [ ][p]hysical force, intimidation or deception.”A.R.S. § 13–1301(2).

¶ 19 The record reflects substantial evidence that Hardy knowingly restrained Meleigha.She testified that Hardy “just appeared” from behind her while she was using a vending machine.He grabbed her by the back of her neck and arm, and she“just started going upstairs” because he was holding her firmly enough to direct her movement.He took her “up to [her] apartment” and “pushed [her] in the living room and just started walking back to the bedrooms.”The jury saw photographs of bruises on Meleigha's neck and arms that she testified were caused by Hardy.The jury also heard an audio recording of Meleigha's 911 call, in which she told the operator, “He got me when I was down there, and he made me go up....He had the gun to my back.”The operator asked, “So did he like physically grab you,” and Meleigha responded, “Yes, he grabbed me.”

¶ 20 The evidence further established that Hardy restrained Meleigha with the intent to aid his commission of a felony, that is, to injure or kill Tiffany and Don.Hardy searched for Tiffany before the murders,...