State v. Johnson

• Decision Date: 17 May 2012
• Docket Number: No. 2 CA–CR 2010–0380.,2 CA–CR 2010–0380.
• Citation: 634 Ariz. Adv. Rep. 5,276 P.3d 544,229 Ariz. 475
• Parties: The STATE of Arizona, Appellee, v. James Darrell JOHNSON, Appellant.
• Court: Arizona Court of Appeals

229 Ariz. 475

276 P.3d 544

634 Ariz. Adv. Rep. 5

The STATE of Arizona, Appellee,

v.James Darrell JOHNSON, Appellant.

No. 2 CA–CR 2010–0380.

Court of Appeals of Arizona, Division 2, Department A.

May 17, 2012.

Thomas C. Horne, Arizona Attorney General By Kent E. Cattani and David A. Sullivan, Tucson, Attorneys for Appellee.

Lori J. Lefferts, Pima County Public Defender By David J. Euchner, Tucson, Attorneys for Appellant.

OPINION

ECKERSTROM, Presiding Judge.

[229 Ariz. 476]¶ 1 Appellant James Johnson was convicted of second-degree murder and sentenced to an aggravated, twenty-two-year prison term. In this appeal, he raises numerous assignments of error regarding his sentencing proceedings. For the following reasons, we vacate his sentence and the jury's findings that the offense was committed in an especially cruel, heinous, or depraved manner, and remand the case to the trial court for further proceedings.

Factual and Procedural Background

¶ 2 Johnson was convicted after a bench trial of the second-degree murder of his former wife, and the court sentenced him to an aggravated, twenty-two-year prison term. In his first appeal, we found he had not waived his right to have a jury determine the aggravating factors to be used in determining his sentence and we remanded the case to the trial court. Upon remand, the jury found that Johnson had committed the murder in an especially cruel manner and in an especially heinous or depraved manner; ¹ he had caused emotional harm to the victim's family; and he had disfigured the victim, depriving the family of an open-casket funeral. The court found the aggravating factors outweighed the mitigating factors and again sentenced Johnson to an aggravated, twenty-two-year term of imprisonment.² Johnson filed this timely appeal, and we have jurisdiction pursuant to A.R.S. §§ 12–120.21(A)(1), 13–4031, and 13–4033(A)(4).

Sufficiency of Cruel, Heinous, or Depraved Murder³

¶ 3 Johnson argues the evidence presented was insufficient to prove the aggravating factor that the crime had been committed in a cruel, heinous, or depraved manner. At the close of the aggravation hearing, he moved for a “judgment that [the] aggravating circumstance was not proven,” pursuant to Rule 20, Ariz. R.Crim. P. The trial court denied the motion, and we review its ruling de novo. See State v. West, 226 Ariz. 559, ¶ 15, 250 P.3d 1188, 1191 (2011).

¶ 4 We will reverse the trial court's ruling “only if there is a complete absence of substantial evidence to support the charges.” State v. Carlos, 199 Ariz. 273, ¶ 7, 17 P.3d 118, 121 (App.2001). Substantial evidence has been defined as “more than a mere scintilla” and “proof that ‘reasonable persons could accept as adequate and sufficient’ ” to support a finding beyond a reasonable doubt. State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990), quoting State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980). Denying a Rule 20 motion is proper “where reasonable minds could differ on the inferences to be drawn from the evidence presented.” State v. Belyeu, 164 Ariz. 586, 590, 795 P.2d 229, 233 (App.1990). We conclude sufficient evidence existed here that a reasonable jury could have found the factor beyond a reasonable doubt.

¶ 5 Johnson relies primarily on capital cases to support his argument. The state counters that “reviewing courts have undertaken a much more holistic and far less rigorous analysis of this issue in the non-capital context,” citing State v. Stanhope, 139 Ariz. 88, 94–95, 676 P.2d 1146, 1152–53 (App.1984); State v. Meador, 132 Ariz. 343, 347, 645 P.2d 1257, 1261 (App.1982); and State v. Inglish, 129 Ariz. 444, 445–46, 631 P.2d 1102, 1103–04 (App.1981). ⁴ And, subsequent jurisprudence suggests our supreme court was compelled to set forth a narrowing construction to the especially cruel, heinous, or depraved aggravating factor to comply with Eighth Amendment standards that are arguably inapplicable in the non-capital context. See Walton v. Arizona, 497 U.S. 639, 652–56, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), overruled on other grounds by Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); see also Maynard v. Cartwright, 486 U.S. 356, 361–62, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988) (distinguishing vagueness challenge to capital aggravating factors brought under Eighth Amendment from vagueness challenge under Due Process Clause). We also recognize, however, that almost all intentional murders can be characterized as cruel to the victim, and most all of those who commit such crimes arguably have acted in a heinous and depraved fashion. See State v. Knapp, 114 Ariz. 531, 543, 562 P.2d 704, 716 (1977) (recognizing “ ‘all killings are atrocious' ” and defining especially cruel, heinous, or depraved factor as applying to murders deviating from norm), quoting Tedder v. State, 322 So.2d 908, 910 (Fla.1975); see also Maynard, 486 U.S. at 364, 108 S.Ct. 1853 (stating, without more guidance defining terms in aggravating circumstance, “an ordinary person could honestly believe that every unjustified, intentional taking of human life is ‘especially heinous' ”). Accordingly, Arizona's capital cases addressing this aggravating factor provide useful guidance to our juries and judges in assessing what features of such crimes appropriately support an aggravated sentence—a judgment requiring a determination whether the crime truly has been committed in a fashion more blameworthy than other second-degree murders. Assuming without deciding that the more rigorous standards set forth in the capital cases apply here, there is sufficient evidence to support the factor.

¶ 6 “A murder is especially cruel ... when the victim consciously ‘suffered physical pain or mental anguish during at least some portion of the crime and ... the defendant knew or should have known that the victim would suffer.’ ” State v. Dixon, 226 Ariz. 545, ¶ 61, 250 P.3d 1174, 1185 (2011), quoting State v. Morris, 215 Ariz. 324, 338, 160 P.3d 203, 217 (2007); accord State v. Smith, 146 Ariz. 491, 504, 707 P.2d 289, 302 (1985). The victim need not have been conscious for every wound inflicted, State v. Sansing, 206 Ariz. 232, ¶ 7, 77 P.3d 30, 33 (2003), and there is no required period of suffering to prove the murder was especially cruel. State v. Cropper, 223 Ariz. 522, ¶ 13, 225 P.3d 579, 583 (2010).

¶ 7 The state presented evidence that Johnson had inflicted at least thirty-seven stab wounds to the victim's face, neck, chest, back, and upper extremities. She had defensive wounds on her hands and arms and had been moving during at least some of the attack; this constitutes evidence of a struggle, which can support a finding of cruelty. See State v. Moody, 208 Ariz. 424, ¶¶ 223, 225, 94 P.3d 1119, 1167 (2004) (evidence of blood throughout house, victim's defensive wound, broken fingernail, and lost contact lens supported finding of violent struggle and supported finding “ ‘murder ... was especially cruel’ ”); see also Morris, 215 Ariz. 324, ¶ 61, 160 P.3d at 217 (evidence of victims' struggle with attacker part of “overwhelming evidence of cruelty”).

¶ 8 Moreover, a police detective testified the attack would have lasted between thirty to ninety seconds or longer. And, the forensic pathologist opined the victim's death was not instantaneous. See Sansing, 206 Ariz. 232, ¶ 12, 77 P.3d at 34 (several minutes necessary for victim to lose enough blood to die separately established physical pain component of cruelty factor); State v. Herrera, 176 Ariz. 21, 34, 859 P.2d 131, 144 (1993) (suffering from eighteen seconds to two or three minutes supported finding of cruelty). The foregoing was sufficient evidence from which a jury could have found that the victim consciously suffered physical pain or mental anguish for some of the attack and that Johnson knew or should have known he was making her suffer.

¶ 9 Johnson contends “[t]he State produced no evidence to support the conclusion that [the victim] was conscious at the time of the incident or whether she was conscious of the pain,” while conceding the evidence of defensive wounds on her hands was “evidence that [she] was conscious and suffering.” Although he argues the defensive wounds could have resulted from “a reflexive act,” and did not show consciousness,that is but one interpretation of the evidence. If reasonable people “could differ as to whether the evidence establishes a fact in issue, then the evidence is substantial,” and a trial court does not err in denying a Rule 20 motion. State v. McCurdy, 216 Ariz. 567, ¶ 14, 169 P.3d 931, 937 (App.2007). The trial court properly denied Johnson's motion for a judgment of acquittal insofar as there was substantial evidence he committed the murder in an especially cruel manner. Only one of the three subfactors listed in § 13–701(D)(5) must be proven in order for a sentence to be aggravated under this provision. See State v. Hinchey, 165 Ariz. 432, 438–39, 799 P.2d 352, 358–59 (1990) (“We consider the terms ‘especially heinous, cruel or depraved’ in the disjunctive[,] and a finding beyond a reasonable doubt of any one of the three alternative elements is sufficient to find this circumstance exists.”). Therefore, because we have found sufficient evidence supports the jury's finding that the murder was especially cruel, we need not address Johnson's argument that the state also failed to prove it was especially heinous or depraved.⁵

Diminished Capacity Evidence

¶ 10 Johnson argues the trial court erred when it precluded him from presenting a psychiatrist's testimony to rebut the alleged aggravating factor that he had committed the murder in an especially cruel, heinous, or depraved manner. Specifically, Johnson sought to present evidence through the testimony of Dr. Lauro Amezcua–Patino that Johnson has bipolar disorder, and on the night of the homicide he had ingested too much prescription medication, which in turn caused an amnestic dissociative state in which he...