State v. Hernandez

Decision Date26 July 2013
Docket NumberNo. CR–10–0415–AP.,CR–10–0415–AP.
Citation305 P.3d 378,232 Ariz. 313
PartiesSTATE of Arizona, Appellee, v. Robert HERNANDEZ, Appellant.
CourtArizona Supreme Court

OPINION TEXT STARTS HERE

Thomas C. Horne, Arizona Attorney General, Jeffrey A. Zick, Chief Counsel, Kent E. Cattani, Former Chief Counsel Criminal Appeals/Capital Litigation, Ginger Jarvis, Assistant Attorney General (argued), Phoenix, for State of Arizona.

Michael J. Dew (argued), Michael J. Dew Attorney At Law, Phoenix, for Robert Hernandez.

JUSTICE BRUTINEL, opinion of the Court.

[232 Ariz. 317]¶ 1 A jury found Robert Hernandez guilty of murdering Jeni Sanchez–Rivera, her husband, Omar Guzman Diaz, and Omar's younger brother, Pablo Guzman Diaz, as well as attempted murder for shooting and seriously injuring Maria Elodia Diaz–Payan. The jury determined Hernandez should be sentenced to death for each murder. We have jurisdiction over this automatic appeal pursuant to Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 13–4031.1

I. FACTUAL AND PROCEDURAL BACKGROUND 2

¶ 2 In April 2008, Maria Diaz–Payan traveled to Phoenix to visit her friend, Jeni Sanchez–Rivera, who lived with her husband, Omar Guzman Diaz. After Maria's arrival, she, Jeni, Jeni's son, and Jeni's friend, Sonia Gonzalez, took a short trip to New Mexico in a car rented by Sonia's mother, Martha Gonzalez.

¶ 3 Sonia Gonzalez is the mother of Hernandez's three children. While in New Mexico, Sonia missed a birthday party for one of her and Hernandez's children, Angel, which angered Hernandez.

¶ 4 The day after returning from New Mexico, Jeni and Maria met Omar and Omar's younger brother, Pablo Guzman Diaz, and drove to Jeni's house in Peoria. Upon arriving, Omar and Pablo entered the house first, while Jeni and Maria stayed in the car. Shortly thereafter, Hernandez came outside and walked toward the car. Although Maria did not know Hernandez, Jeni referred to him as “Bobby.” Removing a gun from his pants, Hernandez forced Maria and Jeni into the house, telling them not to scream or make any noise.

¶ 5 Once inside, Maria could hear Omar and Pablo crying and shouting from inside Jeni's bedroom. While Hernandez forced Maria and Jeni down a corridor to another bedroom, Maria saw another man wearing a ski mask and holding a pistol in Jeni's bedroom. She could hear Omar and Pablo pleading for the men not to hurt them or their family. Maria heard Omar ask Hernandez, “What harm have we done to you, Bobby?”

¶ 6 Hernandez bound Jeni's and Maria's hands behind their backs. While on the bedroom floor, Maria did not look at her captors' faces, hoping they would not harm her. Maria heard Hernandez and Jeni talk about Sonia. Then, Maria heard Hernandez slap Jeni.

¶ 7 After Hernandez returned to Omar and Pablo, Maria heard several gunshots, and Omar's and Pablo's cries ended. Shortly thereafter, Hernandez and the masked man walked to the bedroom where Maria and Jeni lay. Maria heard gunshots and “right away noticed that they had already shot [Jeni].” One of the two men then shot Maria.

¶ 8 Sometime later, Maria realized she was still alive, but bleeding from the scalp. She ran to a neighbor's house to get help and was later taken to a hospital, where she underwent surgery to remove a bullet from her head. At the hospital, Detective Lopez showed Maria a photo lineup of six men. Maria identified a photo of Robert Hernandez as “Bobby.”

¶ 9 Peoria Police detectives found the bodies of Jeni, Omar, and Pablo at the house. Omar's body had six stab wounds. According to the medical examiner, these wounds were likely inflicted while Omar was still alive. Police also found one copper-jacketed bullet and two lead-jacketed bullets in the room, suggesting two different weapons were used to kill Omar and Pablo.

¶ 10 Police later determined that Jeni and Martha Gonzalez co-leased the house where the murders occurred. Martha was initially cooperative with the detectives and identified the “Bobby” described by Maria as Robert Hernandez. She told Detective Lopez that Hernandez had a gun, knew where Jeni and Omar lived, and was upset because Sonia went to New Mexico with Jeni and had missed Angel's birthday party. She also told Detective Lopez that Hernandez had called her at approximately 5:30 p.m. on the day of the murders to say “Omar and Jeni would not be bothering Sonia anymore.”

II. ISSUES ON APPEAL
A. Denial of Requests for Change of Counsel

¶ 11 Hernandez asserts that the trial court did not sufficiently inquire into the bases for his three requests for new counsel and erred in denying the requests. We review a trial court's ruling denying a change of counsel for an abuse of discretion. State v. Torres, 208 Ariz. 340, 343 ¶ 9, 93 P.3d 1056, 1059 (2004).

¶ 12 As we recently stated in State v. Gomez, [t]he Sixth Amendment guarantees criminal defendants the right to representation by counsel, but an indigent defendant is not entitled to counsel of choice, or to a meaningful relationship with his or her attorney.” 231 Ariz. 219, 224 ¶ 19, 293 P.3d 495, 500 (2012) (quoting Torres, 208 Ariz. at 342 ¶ 6, 93 P.3d at 1058) (internal quotation marks omitted), cert. denied,––– U.S. ––––, 133 S.Ct. 2339, 185 L.Ed.2d 1070 (2013). The trial court must appoint new counsel, however, if either “an irreconcilable conflict or a completely fractured relationship between counsel and the accused” exists. State v. Cromwell, 211 Ariz. 181, 186 ¶ 29, 119 P.3d 448, 453 (2005).

¶ 13 To preserve a defendant's Sixth Amendment right to counsel, the trial court has a “duty to inquire as to the basis of a defendant's request for substitution of counsel.” Torres, 208 Ariz. at 343 ¶ 7, 93 P.3d at 1059. The court must make the inquiry on the record. Id. (citing United States v. Morrison, 946 F.2d 484, 499 (7th Cir.1991)).

¶ 14 “The nature of the [court's] inquiry will depend upon the nature of the defendant's request.” Id. ¶ 8. On the one hand, “generalized complaints about differences in strategy may not require a formal hearing or an evidentiary proceeding.” Id. On the other hand, if the defendant sets forth “sufficiently specific, factually based allegations, ... [the] court must conduct a hearing into his complaint.” Id. (quoting United States v. Lott, 310 F.3d 1231, 1249 (10th Cir.2002)) (internal quotation marks omitted).

¶ 15 If the trial court does conduct an inquiry, the defendant bears the burden of proving either a “complete breakdown in communication or an irreconcilable conflict.” Id. at 342 ¶ 6, 93 P.3d at 1058. To satisfy this burden, the defendant must present evidence of a “severe and pervasive conflict with his attorney or evidence that he had such minimal contact with the attorney that meaningful communication was not possible.” Lott, 310 F.3d at 1249. A colorable claim “must go beyond personality conflicts or disagreements with counsel over trial strategy.” Cromwell, 211 Ariz. at 187 ¶ 30, 119 P.3d at 454. If a defendant meets this burden, the trial court “must grant the request for new counsel.” Torres, 208 Ariz. at 343 ¶ 8, 93 P.3d at 1059.

1. Trial Court's Inquiry into Hernandez's Request for New Counsel

¶ 16 Hernandez argues that his allegations that defense counsel had only visited him at the jail four times in more than two years and had never spoken with him about his case were sufficiently specific to require a Torres hearing. Hernandez asserts that the trial court's inquiry was insufficient and asks this Court to remand for a more extensive evidentiary hearing on his claims. Although the trial court could have engaged in a more searching exploration of the responses from Hernandez's attorneys as to whether there were irreconcilable differences, the court did not abuse its discretion because its inquiry was sufficient.

¶ 17 The record reflects that during the course of this case, Hernandez met and communicated with his attorneys several times. For example, on December 10, 2008, Hernandez, his two attorneys, Rodrick Carter and Stephen Johnson, as well as his mitigation specialist, attended a mitigation status conference. There, the court asked Hernandez: “Do you have any questions of your defense team or-are they keeping you pretty well advised of what is going on?” Hernandez assented. The court concluded that “it sounds like you have got a good working relationship with your defense team. So continue to be cooperative with them.”

¶ 18 On February 6, 2009, the court conducted another mitigation status conference attended by Hernandez, his two defense attorneys, and his mitigation specialist. Hernandez again affirmed that his attorneys had been giving him progress reports. Mr. Carter also communicated Hernandez's request to be tried by his “last day.” The court again concluded that Defendant remains cooperative with his defense team.”

¶ 19 Six months later on August 20, Hernandez filed a motion to withdraw counsel and appoint new counsel. He alleged that his attorney had visited him only once “in approximately 15 months” and had never discussed his case. Because of this “lack of communication,” Hernandez claimed there was “no client and lawyer relationship.” The trial court did not rule on this motion, but six weeks later, on October 7, the court conducted a case management conference. Hernandez and both of his attorneys were present. Mr. Carter informed the court of Hernandez's decision to waive time by noting: “I've discussed it with my client, he has agreed to waive time.” On July 21, 2010, the court conducted another case management conference with Hernandez and his counsel. Mr. Carter advised the court that Hernandez “ha[d] indicated to [Carter] that he cannot see and needs glasses.”

¶ 20 Two months later, on September 24, Hernandez filed a second motion for new counsel based on “irreconcilable differences” and “conflicts of interest.” Hernandez stated that he had filed a bar complaint and a civil lawsuit against Mr. Carter because “Mr. Carter has not gone over this case and “refuses to allow [me] to have a part in [my] defens...

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