State v. Medina

• Decision Date: 04 March 1999
• Docket Number: No. CR-96-0289-AP,CR-96-0289-AP
• Citation: 193 Ariz. 504,975 P.2d 94
• Parties: , 290 Ariz. Adv. Rep. 19 STATE of Arizona, Appellee. v. Efren MEDINA, Appellant.
• Court: Arizona Supreme Court

Page 94

975 P.2d 94

193 Ariz. 504, 290 Ariz. Adv. Rep. 19

STATE of Arizona, Appellee. v. Efren MEDINA, Appellant.

No. CR-96-0289-AP.

Supreme Court of Arizona,

En Banc.

March 4, 1999.

Janet A. Napolitano, Attorney General By Paul J. McMurdie, Chief Counsel, Criminal Appeals, J. Randall Jue, Assistant Attorney General, Phoenix, Attorneys for Appellee.

Neal W. Bassett, Phoenix, Attorney for Appellant.

O P I N I O N

ZLAKET, Chief Justice.

¶1 At approximately 12:30 a.m. on September 30, 1993, Frazier Giles got out of bed to let some fresh air into his Phoenix townhouse. He opened a window, glanced across the street, and noticed someone sitting in his neighbor's car. The headlights were on and the driver's door was open. Next to the car, he saw what he thought was a "pile of rags." Not thinking much about it, he went back to bed.

¶2 A few minutes later, Giles heard someone say, "Please don't hit me. Don't hit me. Don't. Don't." He got up again and looked out the window, but observed the same scene as before. As Giles started back to bed, he noticed another car drive up and stop next to his neighbor's vehicle. The driver spoke to the person in the parked car and then "raced off." The occupant of the neighbor's automobile turned off the headlights, got out of the vehicle, stomped on the "pile of rags," and pulled it into the street. At that point, Giles realized that the "pile of rags" was actually a human being. When the other car returned, the man who had just moved the body ran in front of the vehicle "like, 'Oh, boy, this is going to be fun,' " ¹ and hopped inside. The car sped away, but quickly came "racing" back and ran over the body. Giles then left the window and phoned the police.

¶3 Approximately one week later Efren Medina, Ernie Aro, and Kevin Martinez were arrested for the murder of Carle Hodge. Medina's girlfriend, Angela Calderon, had contacted the police with information about the killing. Defendant Medina was charged with first-degree murder, burglary in the third degree, and aggravated robbery.

¶4 At trial, Calderon testified that on the night of the murder, she and a friend were sitting in her front yard. At about 2:15 a.m., the three men arrived in the defendant's white Mercury. She saw Medina step from the driver's side and Aro from the passenger door. They were laughing and talking about "speed bumps." When she asked the defendant what he meant, he told her to "watch the news."

¶5 Later that morning, the defendant met Calderon at a friend's house. He disclosed that he and his associates had done something wrong and he was scared. Sometime later, he told her that they had intended to steal a car and its radio, but ended up beating and running over an "old man." According to Calderon, Medina admitted pulling the victim out of the car and kicking him in the head. Aro drove Medina's car around the block. When he returned, Medina told him to "scoot over" and got in the car. They drove off, then came back and ran over the victim. Medina told her that he drove over the man three times.

¶6 An investigator found a white plastic bag filled with gold paint at the murder scene, along with several scattered turquoise stones. Blood stains and gold paint marks were on the roadway, smeared by the tires of the defendant's vehicle. The glove compartment of the victim's car had been "ransacked," and the radio appeared to have been tampered with. The knobs had been pulled off, but the unit was still in place. Defendant's fingerprints were found on the car.

¶7 Police discovered the victim's blood, tissue, hair, Seiko watch, and a fragment of his clothing on the undercarriage of the defendant's automobile. The turquoise stones collected at the scene matched those missing from the watch band. Spots of blood consistent with the victim's were detected on the defendant's shoe. A second white plastic bag filled with gold paint was later discovered in the defendant's bedroom, along with two small speakers and a knob from a car window crank. The significance of the latter items was never clearly demonstrated at trial because the state had released the victim's car before any connection could be established.

¶8 A jury found Medina guilty on all counts. The trial judge sentenced him to aggravated terms of five years for the burglary, seven years for the robbery, and to death for the murder. Defendant appeals from his convictions and sentences. We have jurisdiction pursuant to Ariz. Const. art. VI, § 5(3); A.R.S. § 13-4031; Ariz. R.Crim. P. 26.15 and 31.2(b).

TRIAL ISSUES

Recusal

¶9 The defense contends that the judge should have recused himself from this case because he had presided over an earlier aggravated assault and robbery trial of the defendant. Medina was convicted of those charges, ultimately leading to a finding of the (F)(2) aggravating circumstance here. See A.R.S. § 13-703(F)(2) (previous conviction of a serious offense). In addition, because defendant killed Mr. Hodge while on release pending trial of the earlier charges, there was a finding of the (F)(7) aggravator. A.R.S. § 13-703(F)(7) (murder committed while in custody or on authorized release).

¶10 Defendant claims that the trial judge's failure to recuse himself violated his due process rights under the federal and state constitutions. Paradoxically, he admits that there is "absolutely no reason to question the fairness of this judge." He also acknowledges that any judge would have become aware of the prior convictions, but contends that there is an "appearance of unfairness" here that should result in a finding of fundamental error.

¶11 A defendant may move for a new trial based on the court's lack of impartiality. See State v. Perkins, 141 Ariz. 278, 286, 686 P.2d 1248, 1256 (1984), overruled on other grounds by State v. Noble, 152 Ariz 284, 731 P.2d 1228 (1987); Ariz. R.Crim. P. 24.1(c)(5). It is well established, however, that a "trial judge is presumed to be free of bias and prejudice." State v. Rossi, 154 Ariz. 245, 247, 741 P.2d 1223, 1225 (1987). To rebut this presumption, a party must set forth a specific basis for the claim of partiality and prove by a preponderance of the evidence that the judge is biased or prejudiced. Id.; Ariz. R.Crim. P. 10.1.

¶12 Medina did not file a Rule 10.1 motion. He also failed to move for a new trial. He did file a "Motion to Voir Dire Judge Hauser," which was denied. We have held that a defendant's constitutional protections do not include the right to question a judge regarding possible bias or prejudice. Rossi, 154 Ariz. at 248, 741 P.2d at 1226. Permission to do so must be granted sparingly and only in the presence of specific allegations, not "mere speculation, suspicion, apprehension, or imagination." Id. Otherwise, judges would be continuously vulnerable to frivolous attacks. Id. As noted in Rossi, Rule 10.1 is adequate to safeguard the constitutional right to a fair trial in front of an impartial tribunal. Id.

¶13 Defendant offers no reason to question the lower court's impartiality. That this judge presided over his aggravated assault and robbery trial is not enough. There was simply no basis for recusal.

Early Morning Wake-Up

¶14 The county jail had a practice of waking inmates at 1:30 a.m. on the day of their court appearances and transferring them to a holding cell, regardless of the scheduled time for their hearings. Defendant contends that this procedure violated his due process rights by causing him to suffer from lack of rest throughout the trial. During a break in jury selection, defense counsel asked that the court order the jail to take defendant from his cell later in the day, so he could get more sleep at night. He argued that jurors would be "puzzled" by a defendant who dozed off in the middle of the proceedings. The judge denied this request, noting that Medina had been actively participating at trial by taking notes and conferring with his attorney. He suggested that defense counsel see the jail commander if a change in the schedule was desired.

¶15 The record contains little else regarding this matter. There is no evidence that the jail continued transferring the defendant twelve hours in advance of his trial each day, and the defense never complained again. Medina says that raising the issue a second time would have been futile because the court had already said it was "not going to interfere with how the jail runs its operations." In any event, however, nothing in the record suggests that he was sleeping through trial or was otherwise inattentive. Defendant's argument is meritless.

Refusal to Strike Juror

¶16 Medina next argues that the trial court's failure to strike juror Salvatore Palmeri for cause requires reversal. This panelist was one of many questioned individually in chambers about news reports concerning the case. The defense cites Palmeri's answers to various queries by the court. For example, when asked whether he would be able to decide the case based on the evidence, Palmeri responded, "I would probably have a preconceived notion of, you know, say guilty until I heard, you know, what transpired. I don't know. I might turn it around completely." The prospective juror also expressed surprise at being advised that a criminal defendant does not have to produce witnesses, is under no obligation to testify, and cannot be penalized for remaining silent. Toward the end of the questioning, the prosecutor asked Palmeri "as you sit here with what you know about the case and what has been be [sic] discussed, do you believe the defendant now is innocent, guilty or you are not sure?" Palmeri answered, "I'm not sure." Medina argues that this response shows that the juror could not accord him the presumption of innocence.

¶17 Defense counsel moved to strike Palmeri for cause. The judge denied the motion, noting that the prospective juror's reaction was similar to that of others unfamiliar with the criminal justice system. Moreover, as the court observed, Palmeri...