State v. Lehr

Decision Date13 July 2011
Docket NumberNo. CR–09–0095–AP.,CR–09–0095–AP.
Citation227 Ariz. 140,254 P.3d 379
PartiesSTATE of Arizona, Appellee,v.Scott Alan LEHR, Appellant.
CourtArizona Supreme Court


Thomas C. Horne, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section, Jeffrey A. Zick, Assistant Attorney General, Phoenix, Attorneys for State of Arizona.David Goldberg Attorney at Law by David Goldberg, Fort Collins, CO, Attorney for Scott Alan Lehr.


BALES, Justice.

¶ 1 This automatic appeal arises from Scott Alan Lehr's convictions and death sentences for murdering two women. We have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 13–4031 (2011).


¶ 2 Over the course of about a year, beginning in February 1991, Lehr separately attacked ten women in central and northwest Phoenix, abducting and sexually assaulting his victims and brutally murdering three of them. He was convicted of three counts of first degree murder, three counts of attempted first degree murder, two counts of aggravated assault, seven counts of kidnapping, and twenty-two counts involving sexual assault. See State v. Lehr (“ Lehr I ”), 201 Ariz. 509, 512 ¶ 1, 38 P.3d 1172, 1175 (2002). The trial court imposed death sentences for Lehr's murder convictions for victims M.M., M.C., and B.C.

¶ 3 This Court affirmed Lehr's convictions and sentences for the counts related to seven victims, but reversed his convictions concerning M.M., M.C., and W.C. because the trial court had improperly restricted Lehr's cross-examination of the State's DNA expert. Id. at 518–20 ¶¶ 32–43, 38 P.3d at 1181–83. On independent review, this Court affirmed Lehr's death sentence for B.C.'s murder. Id. at 522–24 ¶¶ 60–66, 38 P.3d at 1185–86.

¶ 4 The case was remanded for a retrial on the charges concerning M.M., M.C., and W.C. See id. at 524 ¶ 67, 38 P.3d at 1186. Before the mandate issued, however, the Supreme Court decided Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). In light of Ring, this Court also vacated Lehr's death sentence for B.C.'s murder and remanded the case for resentencing. State v. Lehr (“ Lehr II ”), 205 Ariz. 107, 110 ¶ 10, 67 P.3d 703, 706 (2003).

¶ 5 The counts involving victims M.M., M.C., and W.C. were retried in 2009. After finding Lehr guilty on these counts, the jury concluded that Lehr should be sentenced to death for the murders of M.M. and M.C., but it could not reach a verdict on the appropriate sentence for the murder of B.C. In lieu of retrying the sentencing phase for B.C.'s murder, the State withdrew its request for the death penalty, and the trial court sentenced Lehr to life imprisonment to be served consecutively to his other sentences. The trial court also sentenced Lehr to seven-year consecutive terms of imprisonment for each non-capital offense. This appeal followed.


¶ 6 Lehr raises eight issues on appeal and also urges the Court, in its independent review, to vacate his death sentences and impose terms of life imprisonment without parole.

A. Waiver of Right to Attend Trial

¶ 7 Lehr repeatedly told the trial court that he wanted to waive his right to attend pretrial and trial proceedings. He now contends that his waiver was involuntary and violated the Fifth, Sixth, and Fourteenth Amendments because it was based on the trial court's adherence to a jail policy requiring him to wear a stun belt in the courtroom. Not having made this objection below, Lehr argues that the alleged error was both fundamental and structural.

¶ 8 We review de novo whether a defendant knowingly and voluntarily waived his right to be present at trial. See Campbell v. Wood, 18 F.3d 662, 672 (9th Cir.1994) (noting that voluntariness is ultimately a legal question). When a defendant does not object to a trial court's requiring him to wear restraints such as stun belts, we review for fundamental error. State v. Dixon, 226 Ariz. 545, ¶ 24, 250 P.3d 1174, 1180 (2011).

¶ 9 Lehr has not established error, fundamental or otherwise. Although he contends that he waived his right to be present only because he did not want to wear a stun belt, the record belies this assertion. Before trial, Lehr informed the court several times that he desired to be absent from all court proceedings. The trial court held lengthy discussions to confirm that Lehr understood his right to be present and that he knowingly, intelligently, and voluntarily waived this right. The issue arose again during the trial, when Lehr agreed to stipulate that W.C. had previously identified him in a photo lineup. In discussing the stipulation, Lehr reaffirmed his intent to absent himself during the entire trial, and the trial court found his waiver knowing, intelligent, and voluntary.

¶ 10 On the eve of the penalty phase, the trial court again discussed with Lehr his waiver of his right to be present. Lehr said that he wanted to absent himself in order to increase his chances of receiving the death penalty. When the trial court told Lehr that he would need to be present for the reading of the verdicts, Lehr for the first time voiced concerns about wearing a stun belt—which he characterized as “that deadly execution device”—and asked if he could instead appear dressed in jail clothes and wearing chains.

¶ 11 Lehr contends that his waiver was invalid because the trial court, before the eve of the penalty phase, did not ask why he did not want to be present. Lehr cites United States v. Mitchell, 502 F.3d 931, 986–87 (9th Cir.2007), for the proposition that a judge must inquire into a defendant's reasons for absenting himself from trial. Mitchell does not so hold. Although the trial court in Mitchell did ask the defendant why he wished to absent himself, the Ninth Circuit's opinion does not address whether such an inquiry is required, but instead holds that a capital defendant may absent himself from the penalty phase and the trial court need not hold a competency hearing when the defendant elects to do so. Id. at 986–88.

¶ 12 Similarly unavailing is Lehr's supplemental citation to In re MH 2006–000749, 214 Ariz. 318, 324–25 ¶ 29, 152 P.3d 1201, 1207–08 (App.2007). In that case, the court of appeals observed that [t]he better practice in cases in which a court is called upon to assess whether a right has been voluntarily waived is to make specific findings.” Id. Although judges may sometimes appropriately inquire into a party's reasons for waiving a right, they are not constitutionally required to do so for a waiver to be valid. Cf. State v. Hunnel, 125 Idaho 623, 873 P.2d 877, 880 (1994) (holding that a trial court need not inquire into the reasons for a defendant's waiver of right to counsel so “long as the record as a whole and inferences drawn therefrom show the waiver is voluntary and knowing”).

¶ 13 We also reject Lehr's belated assertion that he waived his presence solely because he did not want to wear a stun belt. The only time he expressed concern about a stun belt was when the trial court told him he would be required to appear in the courtroom for the return of the sentencing verdicts. But even if his desire not to wear a stun belt influenced his waiver, Lehr has not established any error by the trial court.

¶ 14 Lehr's argument presumes that if he had not waived his presence, the trial court would have required him to wear a stun belt merely because of jail policy. We reject this presumption. In fact, on the eve of opening statements for the guilt phase, the trial court told counsel that if Lehr chose to appear in court and objected to a stun belt, the court would require the jail security officers to explain their policies and “why they apply to [Lehr] in this case and the court would then make a ruling. When Lehr later appeared in court for the reading of the sentencing verdicts, the trial court, consistent with Deck v. Missouri, 544 U.S. 622, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005), and State v. Gomez, 211 Ariz. 494, 503 ¶ 43, 123 P.3d 1131, 1140 (2005), made a case-specific determination that security concerns warranted shackling Lehr.

¶ 15 Because the trial court here appropriately conducted several hearings to verify Lehr's continued desire to absent himself from trial and correctly found that Lehr's decision was knowing, intelligent, and voluntary, Lehr has not established error.

B. Joinder and Other Acts Evidence

¶ 16 Lehr makes several arguments regarding the joinder of charges for trial and the use of other acts evidence.

1. Admission of Other Acts Evidence

¶ 17 Pursuant to Rules 404(b) and (c) of the Arizona Rules of Evidence, the trial court allowed the State to present evidence of conduct involved in convictions upheld in Lehr I to show modus operandi, identity, and aberrant sexual propensity.

¶ 18 Rule 404(b) allows the admission of evidence of “other crimes, wrongs, or acts” for purposes that include “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” In cases involving sexual offense charges, Rule 404(c) allows courts to admit evidence of “other crimes, wrongs, or acts ... if relevant to show that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the offense charged.” To admit such evidence, a trial court must specifically find, among other things, that the other acts provide “a reasonable basis to infer that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the crime charged” and that [t]he evidentiary value of proof of the other act is not substantially outweighed by danger of unfair prejudice, confusion of issues, or other factors mentioned in Rule 403.” Ariz. R. Evid. 404(c)(1).

¶ 19 Lehr argues that the acts involved in his other crimes were not sufficiently similar to warrant admitting evidence of them under Rule 404(b). He also argues that such evidence was inadmissible under Rule 404(c) because...

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