State v. Hulsey, No. CR-14-0291-AP

• Court: Supreme Court of Arizona
• Writing for the Court: JUSTICE BOLICK, opinion of the Court
• Citation: 408 P.3d 408
• Parties: STATE of Arizona, Appellee, v. Bryan Wayne HULSEY, Appellant.
• Docket Number: No. CR-14-0291-AP
• Decision Date: 18 January 2018

408 P.3d 408

STATE of Arizona, Appellee,
v.
Bryan Wayne HULSEY, Appellant.

No. CR-14-0291-AP

Supreme Court of Arizona.

Filed January 18, 2018

Mark Brnovich, Arizona Attorney General, Dominic Draye, Solicitor General, Lacey Stover Gard, Chief Counsel, Kristina Reeves (argued), Assistant Attorney General, Capital Litigation Section, Phoenix, Attorneys for State of Arizona

David Goldberg, Esq. (argued), Fort Collins, CO; Thomas A. Gorman, Attorney at Law, Sedona, Attorneys for Bryan Wayne Hulsey

JUSTICE BOLICK authored the opinion of the Court, in which CHIEF JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, JUSTICES BRUTINEL, TIMMER, GOULD, and BERCH ( Retired )^* joined.

JUSTICE BOLICK, opinion of the Court:

¶ 1 Bryan Wayne Hulsey was sentenced to death after a jury found him guilty of the first degree murder of an on duty peace officer. Hulsey also received a consecutive nine-year sentence for his conviction of attempted first degree murder of another on duty peace officer. This Court has jurisdiction over this automatic appeal under article 6, section 5(3) of the Arizona Constitution and A.R.S. §§ 13–4031, –4033(A). We affirm Hulsey's convictions and prison sentence, but, consistent with

408 P.3d 416

Lynch v. Arizona (Lynch III ), ––– U.S. ––––, 136 S.Ct. 1818, 195 L.Ed.2d 99 (2016), vacate his death sentence and remand for new penalty phase proceedings.

BACKGROUND

¶ 2 On the morning of February 19, 2007, Hulsey was the front-seat passenger in a car that police pulled over in a routine traffic stop in Glendale. Officer David Goitia, who initiated the traffic stop, asked the three occupants for identification. As Officer Goitia took the identifications back to his police cruiser, Officer Anthony Holly walked over to the passenger side of the car.

¶ 3 After determining that both the driver and backseat passenger had outstanding warrants, Officer Goitia arrested the driver and placed her in his police car. He then approached Hulsey and asked about the identification Hulsey had provided. Hulsey immediately became agitated, and Officer Goitia told him to get out of the car so that he could pat Hulsey down for weapons for the officers' safety.

¶ 4 Hulsey stepped out of the car and as the pat-down commenced, he took a step back, reached into his waistband, and pulled out a gun. Hulsey aimed at the officers and started firing. Hulsey and Officer Goitia exchanged gunfire as the officer ran for cover and Hulsey ran from the scene. Hulsey made it around the street corner but was soon surrounded by responding officers and arrested. Officer Holly died of a gunshot wound to the head.

¶ 5 Hulsey was charged with first degree murder of a law enforcement officer, attempted murder of a law enforcement officer, and misconduct involving weapons. The State sought the death penalty. Before trial, the court granted Hulsey's motion to sever the weapons charge.

¶ 6 At trial, the State presented testimony from both Officer Goitia and the back-seat passenger to establish that Hulsey shot Officer Holly. Hulsey's primary defense was that Officer Holly had been accidentally shot and killed by Officer Goitia.

¶ 7 Hulsey presented data from "Shot Spotter," a system designed to pick up the sound of gunfire. Hulsey used this data to attempt to show that he fired only one shot that morning. He argued that the investigation produced only one bullet from his gun at the scene, which contained no visible blood. Hulsey used the Shot Spotter data to support his contention that he did not fire his weapon near the cars, but Officer Goitia saw it in his waistband and panicked. Hulsey argued that Officer Goitia ran to the police vehicle to take a position of cover and fired the first ten shots at Hulsey. Hulsey claims he then ran and, while running away, he turned and fired a single shot in Officer Holly's direction.

¶ 8 The jury found Hulsey guilty on both counts and that the State had proven two aggravating factors justifying a death sentence: that Hulsey was previously convicted of a serious offense, A.R.S. § 13–751(F)(2), and that Officer Holly was an on duty peace officer killed in the course of his official duties, A.R.S. § 13–751(F)(10). After considering mitigation evidence, the jury found a death sentence appropriate and the court imposed that sentence and a consecutive nine-year sentence for the attempted first degree murder conviction.

DISCUSSION

I. Pretrial Issues

A. Destruction of evidence

¶ 9 An x-ray taken during Officer Holly's autopsy revealed a few scattered bullet fragments in his skull. The medical examiner, Dr. John Hu, did not to recover the fragments because he thought they were too small to have forensic value and doing so would "leave significant mutilation or disfiguring of Mr. Holly's face." Officer Holly's remains were later cremated. At trial, the court gave a Willits instruction, State v. Willits , 96 Ariz. 184, 191, 393 P.2d 274, 279 (1964), allowing the jury to infer that the destroyed fragments were not from Hulsey's gun.

¶ 10 Hulsey claims that the failure to extract and preserve bullet fragments deprived him of due process because they would have conclusively proved his innocence. Only two guns were deployed that morning: Officer Goitia's .40–caliber Glock with hollow point

408 P.3d 417

rounds and Hulsey's .357 magnum with jacketed soft point ammunition. If the bullet that killed Officer Holly did not come from Hulsey's gun, he would not be guilty of the death-qualifying charge. See A.R.S. § 13–203(A)(1) (defendant's conduct must be the cause-in-fact). For the following reasons, we conclude that the trial court did not abuse its discretion in denying Hulsey's motions related to the alleged destruction of evidence.

1. Motion to exhume

¶ 11 Hulsey moved early in the case to exhume Officer Holly's body to retrieve the bullet fragments. The State opposed the motion as moot, stating that Officer Holly's body had been cremated. Acknowledging there was no body to exhume, Hulsey withdrew his request for oral argument on the matter, yet did not withdraw his motion. The trial court denied the motion "under [the] circumstances." We review a denial of a motion to exhume for abuse of discretion. State v. Atwood , 171 Ariz. 576, 604–05, 832 P.2d 593, 621–22 (1992), disapproved on other grounds by State v. Nordstrom , 200 Ariz. 229, 241 ¶ 25, 25 P.3d 717, 729 (2001).

¶ 12 Hulsey never requested access to the cremated remains. Hulsey's motion to exhume applied only to the physical body. In response to his original motion to exhume, Hulsey was informed of the cremation, to which he responded that the "logic seems clear" that the body cannot be exhumed. Although never withdrawing the motion to exhume, Hulsey conceded that "the answer to the issue of exhumation seems clear." In his reply, Hulsey stated that issues generated from the cremation existed, but that those issues would "be raised by the defense in future motions—not in the present motion." However, Hulsey filed no motion concerning access to the cremated remains.

¶ 13 Even if the motion to exhume applied to the cremated remains, the trial court did not abuse its discretion in denying it. "Exhumation of the victim's body is to be allowed only under extraordinary circumstances. Where existence of the evidence sought was so speculative and uncertain, and its value in aiding defendant's defense so conjectural and remote, the trial court properly exercised its discretion in refusing appellant's motion." Atwood , 171 Ariz. at 604–05, 832 P.2d at 621–22 (quoting Commonwealth v. Kivlin , 267 Pa.Super. 270, 406 A.2d 799, 805 (1979) ).

¶ 14 This case is much like Atwood , in which the defense presented only "cryptic promises" that relevant evidence could be discovered. Id. at 604, 832 P.2d at 621. When the trial court ruled on Hulsey's claim, the notion that any fragments in the remains still held evidentiary value was unsubstantiated. Even today Hulsey concedes on appeal that "the record is silent as to whether the fragments in fact still exist in the decedent's remains." Thus, even if the motion to exhume applied to the cremated remains, the prospect that analysis of the remains would aid Hulsey's defense is speculative. Denial of the motion to exhume was not an abuse of discretion.

¶ 15 Hulsey also requests this Court to stay his appeal and "remand the case for resolution of [the] factual issue" of whether the fragments were destroyed. Hulsey waived his right to an evidentiary hearing by conceding that the evidence was destroyed in his two motions to dismiss for bad faith destruction of evidence and only now requesting access to the remains. See State v. Gutierrez , 229 Ariz. 573, 579 ¶ 32, 278 P.3d 1276, 1282 (2012) ( "[W]hen there are no material facts in dispute and the only issue is the legal consequence of undisputed material facts, the superior court need not hold an evidentiary hearing."); see also State v. Trostle , 191 Ariz. 4, 13, 951 P.2d 869, 878 (1997) (finding failure to request evidentiary hearing about juror misconduct at trial waived on appeal). The State avowed in response to the first motion to exhume that the body was unavailable for inspection because the body had been...