State v. Montano
| Decision Date | 17 March 2003 |
| Docket Number | No. CR-99-0439-AP.,CR-99-0439-AP. |
| Citation | 204 Ariz. 413,65 P.3d 61 |
| Parties | STATE of Arizona, Appellee, v. Danny N. MONTAÑO, Appellant. |
| Court | Arizona Supreme Court |
Janet A. Napolitano, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Capital Litigation Section, Jack Roberts, Assistant Attorney General, Phoenix, Attorneys for Appellee.
Law Office of Carla G. Ryan by Carla G. Ryan, Tucson, Attorney for Appellant.
¶ 1 Appellant Danny Montaño appeals from his convictions and sentences on one count of first degree murder and one count of conspiracy to commit first degree murder. We have jurisdiction pursuant to Arizona Constitution, Article VI, Section 5(3), Arizona Revised Statutes (A.R.S.) sections 13-4031 and -4033 (2001), and Arizona Rule of Criminal Procedure 31.2(b).
¶ 2 Appellant and David "Spanky" Jimenez shared a cell at the Cimmaron Unit of the Department of Corrections in Tucson. They entered Raymond Jackson's cell on August 7, 1995. Appellant asked, "What's happening?" and closed the door. Loud noises and screaming were then heard. When the appellant and Jimenez exited, a concentrated clean-up effort ensued involving those two men and at least one other inmate. Shortly thereafter, a guard making rounds found Raymond Jackson face down on his bunk, covered with a sheet. He had been stabbed 179 times.
¶ 3 The prison was immediately locked down. A search of the cell shared by the appellant and Jimenez revealed bloodstains on the floor and a bag of bloodstained clothing. Appellant had a fresh, bleeding cut on the back of his right hand. While four "shank"-type weapons were found in the cellblock, including two in a porter's closet drain, none was ever linked to the appellant.
¶ 4 Almost two years later, on June 24, 1997, a complaint was sworn out against the appellant and Jimenez. On August 12, a preliminary hearing was held at which three inmates testified: David Gallardo Soto, Jose Alcarez-Lopez, and George Bidwell. The state requested this hearing, in part, to preserve the testimony of these men, whom it feared might be killed before trial. The defense offered to stipulate the existence of probable cause, but the prosecution declined to do so.
¶ 5 Soto shared a cell with Mario Arvisu. He testified that on the day before the killing, Arvisu and inmate "Boo-Boo" Jerez told him to leave the cell because they had business to discuss. Soto lingered next to the closed door and eavesdropped. He heard Jerez say, "We have to kill him," to which Arvisu responded:
¶ 6 On the day of the murder, Soto was in his cell. When he began making noise, he saw Arvisu gesture to keep quiet. Arvisu pointed toward Jackson's cell and then spoke to another inmate who came up to Soto's door to tell him to be quiet. Soto saw the appellant and Jimenez leave their cell and walk to Jackson's. He later saw them exit Jackson's cell. Appellant was carrying a red towel, and his clothes had blood on them. Shortly thereafter, Soto walked to their cell and asked Jimenez for tobacco. Appellant was standing at the sink, washing himself. A few moments later, Soto passed their cell door again, and the appellant was flushing the towel down the toilet.
¶ 7 Inmate Jose Alcarez-Lopez testified that at the time of the murder he lived in the cell next to Jackson's. He was cleaning his sink when he saw the appellant and Jimenez enter Jackson's cell. He heard the appellant say, "What's happening?" and saw him close the door behind them. Alcarez-Lopez then heard "screaming, like of pain." He quickly went to the showers because he thought that the fight would lead to a lock-down and loss of showering privileges for a few days. As he passed Jackson's cell, he looked in and saw the appellant hitting Jackson and Jimenez trying to pry something out of Jackson's hand. After he returned from the shower, he saw Jimenez and the appellant pass his door and go to their cell. Appellant was concealing something as he walked. ¶ 8 Inmate George Bidwell testified both at the preliminary hearing and at trial. He said that on the day in question he heard "a lot of noise ... a lot of dings and bangs and thumps going on upstairs." He also heard "a real deadly kind of screaming ... as if someone were hurt real bad." He, like Alcarez-Lopez, headed for the showers, and while en route saw the appellant going back and forth between his cell and Jackson's cell. He was later approached by Jimenez and another inmate, who asked if he had any cleaning supplies.
¶ 9 By the time of the trial, both Soto and Alcarez-Lopez had been released from custody and were living in Mexico. Upon the state's motion and following a hearing on the matter, they were deemed "unavailable" for trial. The videotape of their preliminary hearing testimony was played for the jury. Bidwell testified at trial in person, and did so consistently with his preliminary hearing testimony.
¶ 10 Also at the trial, Officer Jimmie Byrd testified that when he was making rounds that day, an inmate named Torres stopped him. Torres engaged him in conversation about a recent boxing match. Byrd testified that this was unusual because inmates do not often engage in friendly banter with guards. He also said that he saw no one enter or leave Jackson's cell, nor did he see anything unusual regarding that cell all day. He did, however, hear lots of flushing coming from the appellant's cell and saw the appellant carrying a mop. He saw that the floor of the cell was damp, and the garbage can was full of water.
¶ 11 The state introduced photographs of a fresh, bleeding cut on the back of the appellant's right hand, purportedly taken immediately after the attack. The state also introduced testimony regarding boot prints found in blood on the floor of the victim's cell. A pair of dark brown boots was taken directly from Jimenez's feet after the murder. DPS Lab Director Ron Bridgemon testified that these boots were capable of having produced the prints found on the floor. Admittedly, any shoe of that pattern and size could have made them. DNA analysis, however, showed that the appellant's blood was on the boots.
¶ 12 The investigators also took a pair of size 8 boots from a shelf in the cell occupied by the appellant and Jimenez. The soles had a distinctive heel notch and random nail holes. Bridgemon found that these marks matched a photo of prints in the blood on the floor of Jackson's cell. Moreover, later testimony established that the boots had bloodstains containing DNA consistent with Jackson's, but not with that of the appellant, Jerez, Jimenez, or inmate Ricardo Rodriguez.
¶ 13 A brown bag containing two pairs of sweat pants, two sweatshirts, and a pair of white "jockey-type" shorts was found in a trash can in the cell occupied by the appellant and Jimenez. Blood found on the sweatshirt was consistent with Jackson's DNA, but the appellant, Jerez, Jimenez, and Rodriguez were all excluded. The same results were obtained from a bloodstain found on some shorts in the trash can. A pair of sweat pants had a mixture of the appellant's and Jackson's blood on it. DNA in perspiration from the leg of one of the sweat pants had two donors. There was not enough from the primary donor to determine identity, but the appellant and Jimenez were ruled out as secondary donors. DNA in perspiration from the waistband of those same sweat pants also had two donors. It had six markers for Jimenez, a combination that occurs in 1 out of 2500 people. Appellant was the secondary donor.
¶ 14 Appellant was found wearing white boxer shorts, which had two separate stains on them. One stain consisted of his own blood and the other a mixture of his blood and the victim's.
¶ 15 When the state rested, the defense presented no evidence of its own at the trial.
¶ 16 The appellant's major complaint is the two-year delay between the crime and the indictment. He alleges that the state intentionally postponed filing charges to ensure that Soto and Alcarez-Lopez had been released and deported to Mexico. Appellant claims that this delay prejudiced him by denying his right to rigorous cross-examination. He presents no direct evidence of the state's intent, but asserts that it had collected everything necessary to initiate the case within days of the crime. He also alleges that the state intimidated Soto and Alcarez-Lopez into leaving the country upon their release.1
¶ 17 The state contended that because the appellant failed to raise this argument in a pretrial motion, he was barred from doing so by Arizona Rule of Criminal Procedure 16.1(b) and (c). The trial judge agreed. Rule 16.1(b) provides that "[a]ll motions shall be made no later than 20 days prior to trial, or at such other time as the court may direct." Failure to comply means that the motion "shall be precluded, unless the basis therefor was not then known, and by the exercise of reasonable diligence could not then have been known, and the party raises it promptly upon learning of it." Ariz. R.Crim. P. 16.1(c).
¶ 18 We agree with the trial court.2 Appellant did not make a motion to dismiss twenty days before trial. This court has barred similar claims when they were not timely raised. See, e.g., State v. Sustaita, 119 Ariz. 583, 591, 583 P.2d 239, 247 (1978); State v. Torres-Mercado, 191 Ariz. 279, 281, 955 P.2d 35, 37 (App.1997) ().
¶ 19 The trial judge granted the state's motion to preclude the appellant from arguing to the jury that the delay affected his ability to mount a defense, saying:
This is an issue most properly brought before the Court in pretrial motions. It is a legal issue where the Court needs to determine whether or...
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