State v. Johnson

Decision Date23 August 2019
Docket NumberNo. CR-16-0261-AP,CR-16-0261-AP
Citation247 Ariz. 166,447 P.3d 783
Parties STATE of Arizona, Appellee, v. James Clayton JOHNSON, Appellant.
CourtArizona Supreme Court

Mark Brnovich, Arizona Attorney General, O.H. Skinner, Solicitor General, Lacey Stover Gard, Chief Counsel, Capital Litigation Section, Tucson, Jeffrey L. Sparks (argued), Ginger Jarvis, Assistant Attorneys General, Phoenix, Attorneys for State of Arizona

James J. Haas, Maricopa County Public Defender, Mikel Steinfeld (argued), Rena P. Glitsos, Kevin Heade, Deputy Public Defenders, Law Office of the Public Defender, Phoenix, Attorneys for James Clayton Johnson

CHIEF JUSTICE BRUTINEL authored the opinion of the Court, in which VICE CHIEF JUSTICE TIMMER and JUSTICES BOLICK, GOULD, LOPEZ, BALES (RETIRED), and JUDGE MCMURDIE* joined.

CHIEF JUSTICE BRUTINEL, opinion of the Court:

¶1 This automatic appeal arises from James Clayton Johnson’s convictions and death sentence for the murder of Xiaohung Fu. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution and A.R.S. §§ 13-4031 and 13-4033(A)(1).

¶2 In December 2010, Johnson entered Taiwan Massage. Inside, he encountered its owner, Fu. A struggle ensued, in which Johnson bound and repeatedly stabbed Fu, killing her.

¶3 Next door, Marvin Pearce and Terry Weathers heard the commotion. Weathers rushed to check on Fu. When he entered Taiwan Massage, he found the front entrance in disarray. Weathers shouted "hello" but got no response. After a moment, Johnson exited the bathroom at the end of the hall, drying his hands. Weathers asked where Fu was, and Johnson replied she had cut herself and left in an ambulance. Weathers then rushed next door to tell Pearce what he witnessed and called for help. Weathers and Pearce then watched as Johnson got into his truck and sped away. When officers arrived on the scene, they found Fu dead. Fu had been stabbed several times, including one laceration down her back that penetrated through her lung and a near four-inch cut into her neck. She also suffered superficial cuts across her stomach.

¶4 Johnson fled to his girlfriend’s apartment where he washed his clothes and truck. Three days later, Johnson robbed a Christmas tree lot and was arrested. (Johnson pleaded guilty to armed robbery on December 21, 2010.) Based on similarities between the two crimes, police linked Johnson to the Taiwan Massage killing. Cell phone tower data and DNA evidence substantiated Johnson’s involvement. The State charged Johnson with one count each of first degree murder, kidnapping, and burglary in the first degree.

¶5 The State noticed its intent to seek the death penalty, alleging the following aggravating circumstances: (1) Johnson was previously convicted of a serious offense, A.R.S. § 13-751(F)(2) ; (2) Johnson committed the offense for pecuniary gain, § 13-751(F)(5) ; (3) Johnson committed the offense in an especially heinous, cruel, or depraved manner, § 13-751(F)(6) ; and (4) Johnson committed the offense while on release, § 13-751(F)(7)(a), and while on probation for a felony, § 13-751(F)(7)(b).

¶6 After trial, the jury found Johnson guilty on all counts and found that the State had proved the (F)(2), (F)(6), and (F)(7)(a) and (b) aggravating factors beyond a reasonable doubt. After considering mitigation evidence, the jury found that Johnson’s proffered mitigation was not sufficiently substantial to call for leniency and sentenced Johnson to death.

DISCUSSION
A. The A.R.S. § 13-751 Sentencing Scheme

¶7 Johnson argues that Arizona has not complied with its constitutional obligation to legislatively narrow the class of first degree murders that are eligible for the death penalty. We review Johnson’s constitutional challenge de novo. See State v. Smith , 215 Ariz. 221, 228 ¶ 20, 159 P.3d 531, 538 (2007).

¶8 In 2013, Johnson joined in litigation challenging Arizona’s death penalty for failing to sufficiently narrow the class of first degree murders eligible for a capital sentence. As part of the challenge, the defendants requested but were denied an evidentiary hearing. The trial court denied the defendants’ consolidated challenge to the constitutionality of Arizona’s death penalty statutes. That litigation eventually led to our decision in State v. Hidalgo (Hidalgo I ), 241 Ariz. 543, 549–52 ¶¶ 14–29, 390 P.3d 783, 789–92 (2017). There, we observed that United States Supreme Court case law undermined the defendants’ position, id. at 550 ¶ 19, 390 P.3d at 790, and affirmed the constitutionality of Arizona’s sentencing scheme, id. at 550–52 ¶¶ 19–29, 390 P.3d at 790–92. For the same reasons we expressed in Hidalgo I , we reject Johnson’s argument here.

¶9 Johnson next argues the court erred when it failed to hold the requested evidentiary hearing to allow defendants to support their challenge. Johnson further contends that the failure to hold an evidentiary hearing resulted in an incomplete record likely to preclude Supreme Court review. See Hidalgo v. Arizona (Hidalgo II ), ––– U.S. ––––, 138 S. Ct. 1054, 1057, 200 L.Ed.2d 496 (2018) (mem.) (Breyer, J., respecting the denial of certiorari). We review the denial of an evidentiary hearing for an abuse of discretion. See Hidalgo I , 241 Ariz. at 548 ¶ 7, 390 P.3d at 788.

¶10 As we noted in Hidalgo I , neither Hamdi v. Rumsfeld , 542 U.S. 507, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004), nor Mathews v. Eldridge , 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) requires an evidentiary hearing. 241 Ariz. at 548–49 ¶¶ 10–13, 390 P.3d at 788–89. And though Johnson points to Justice Breyer’s statement respecting the denial of certiorari in Hidalgo II , Justice Breyer neither implied that the Constitution requires an evidentiary hearing in that case nor explained why an expanded record would provide a more compelling basis for granting review than the explicit finding that the defendant’s factual claims were true. See Hidalgo II , 138 S. Ct. at 1057 (stating that the "opportunity to develop the record through an evidentiary hearing was denied" and, "[a]s a result," the record was undeveloped).

¶11 Further, though Johnson argues that denying remand and an evidentiary hearing will condemn a future petition for writ of certiorari to the United States Supreme Court to the same fate as Hidalgo’s, he can include the deprivation of the hearing as a basis for review where Hidalgo chose not to. And to the extent Johnson argues that Hidalgo was unable to adequately present the issue to the Supreme Court, his argument ignores that Hidalgo was allowed to supplement the record on appeal with an expanded study of first degree murder cases in Arizona, which found that one or more aggravating circumstances were present in 856 of 866 murders. See Hidalgo I , 241 Ariz. at 549 ¶ 17, 390 P.3d at 789. The trial court’s denial of the evidentiary hearing was not an abuse of discretion. See id. ¶ 13.

¶12 Separately, Johnson claims the trial court’s rulings violated his right to effective assistance of counsel because his counsel’s ability to challenge the death penalty was impeded by the denial of the hearing. See Strickland v. Washington , 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (providing that the right to counsel includes the right to effective assistance of counsel). But counsel is not ineffective where he requested, and the court denied, the exact hearing Johnson complains was required.

¶13 Lastly, Johnson argues that Hidalgo I did not address whether Arizona’s constitution provides broader protections or requires an evidentiary hearing. But Johnson fails to develop the argument or offer any legal support as to why the Arizona Constitution would mandate a different result than that required by the Constitution of the United States. We thus decline to consider it. See State v. Bolton , 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) (stating that an argument not sufficiently developed on appeal is waived).

B. The A.R.S. § 13-751(F)(6) Aggravator
i. Unconstitutionality of the (F)(6) aggravator

¶14 Johnson argues that the (F)(6) especially cruel, heinous, or depraved aggravator is unconstitutionally vague and that the narrowing instructions were inaccurate and insufficient. We review de novo both the constitutional challenge, see Hidalgo I , 241 Ariz. at 548 ¶ 7, 390 P.3d at 788, and whether the jury instructions correctly stated the law, see State v. Burbey , 243 Ariz. 145, 146 ¶ 5, 403 P.3d 145, 146 (2017).

¶15 During the trial, the court instructed the jury as follows:

Definition of especially heinous, cruel, or depraved. Concerning this aggravating circumstance, all first degree murders are to some extent heinous, cruel, or depraved. However, this aggravating circumstance cannot be found to exist unless the State has proved beyond a reasonable doubt that the murder was especially cruel, especially heinous, or especially depraved.
"Especially" means unusually great or significant. The terms "especially cruel," or "especially heinous or depraved" are considered separately. Therefore the presence of any one circumstance is sufficient to establish this aggravating circumstance. However, to find that this aggravating circumstance is proven, you must find that the [sic] especially cruel has been proven unanimously beyond a reasonable doubt or that ... especially heinous or depraved has been proven unanimously beyond a reasonable doubt.
"Especially cruel." The term "cruel" focuses on the victim’s pain and suffering. If you find the murder was committed in an especially cruel manner, you must find that the victim consciously suffered physical or mental pain, distress, or anguish prior to death. The defendant must know or should have known that the victim would suffer.
"Especially heinous or depraved." The term "especially heinous or depraved" focuses ... upon the defendant’s state of mind at the time of the offense as reflected by the defendant’s words and acts. A murder is especially heinous if it is hatefully or shockingly evil. In other words, grossly bad.
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