State v. Payne

Decision Date21 August 2013
Docket NumberNo. CR–09–0081–AP.,CR–09–0081–AP.
Citation667 Ariz. Adv. Rep. 5,232 Ariz. 360,306 P.3d 17
PartiesThe STATE of Arizona, Appellee, v. Christopher Mathew PAYNE, Appellant.
CourtArizona Supreme Court


Thomas C. Horne, Arizona Attorney General, Kent E. Cattani (argued), former Chief Counsel, Criminal Appeals/Capital Litigation, Jeffrey A. Zick, Chief Counsel, Criminal Appeals/Capital Litigation, Amy Pignatella Cain, Assistant Attorney General, Tucson, for State of Arizona.

Lori J. Lefferts, Pima County Public Defender, Robert J. Hirsh, former Pima County Public Defender, Frank P. Leto (argued), Deputy Public Defender, Kristine Maish, Deputy Public Defender, Tucson, for Christopher Mathew Payne.

Chief Justice BERCH, opinion of the Court.

¶ 1 Christopher Mathew Payne was convicted of two counts of first degree murder, three counts of child abuse, and two counts of concealing a dead body, and was sentenced to death for each murder. We have jurisdiction of this automatic appeal pursuant to Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 13–4031.


¶ 2 Christopher Mathew Payne and his girlfriend, Reina Gonzales, starved and abused Payne's children, Ariana, age 3, and Tyler, age 4, until they died.

¶ 3 Payne left Ariana and Tyler with Gonzales while he worked, first driving for a medical transportation company and later selling heroin. Gonzales called Payne at work several times a day to complain about the children, even purportedly threatening to kill them if Payne did not make them behave.

¶ 4 Payne began punishing Ariana and Tyler by locking them in a closet while he was away. By late June 2006, the children were kept in the closet permanently. Payne initially fed them sandwiches once a day, but after about a month, he stopped feeding them at all. Payne checked on the children perhaps once a day, but he did not bathe them or let them out to use the bathroom or get fresh air.

¶ 5 Sometime in August 2006, Payne discovered that Ariana had died. He nonetheless left her in the closet with Tyler, who was still alive. The next day, Payne stuffed Ariana's body into a duffel bag, which he eventually put back in the closet with Tyler. Payne found Tyler dead approximately one week later.

¶ 6 In mid-September, Payne put the children's bodies in a blue tote box, which he placed in a rented storage unit. After Payne failed to pay the rental fee, staff opened the unit. They found only the tote inside, which they said smelled “really bad,” so they threw it in a dumpster. A staff member became concerned about the smell and called the police two days later.

¶ 7 The police found Ariana's partially decomposed body inside the tote. She had twelve broken ribs, a broken spine, and a broken shoulder. After finding Ariana's body, the police did not search the dumpster further. The investigation led police to Payne and Gonzales, whom they located at a motel. The officers asked Payne to accompany them to the station to answer questions, but he refused to go without his attorney. They then arrested him on an unrelated warrant.

¶ 8 At the station, Payne confessed to not obtaining help for the children and allowing them to die in his care. Police never found Tyler's body. In searching Payne's former apartment, police found blood on the walls inside the closet, an opening in the closet wall stuffed with feces and human hair, and several patches of body fluids on the carpet.

¶ 9 The State charged Payne and Gonzales with first degree murder and other crimes. In exchange for testifying, the State allowed Gonzales to plead guilty to two counts of second degree murder, for which she was given concurrent 22–year prison sentences. The jury found Payne guilty of three counts of child abuse, two counts of concealing a dead body, and two counts of first degree murder. The jury also found three aggravating factors: especial cruelty, heinousness, or depravity, A.R.S. § 13–751(F)(6); multiple homicides, id. § 13–751(F)(8); and young age of the victims, id. § 13–751(F)(9). This automatic appeal followed the imposition of death sentences for the two murders.

A. Jury Selection

¶ 10 The Sixth Amendment to the United States Constitution entitles a defendant to an impartial jury. State v. Velazquez, 216 Ariz. 300, 306 ¶ 14, 166 P.3d 91, 97 (2007). Payne argues that the trial court erred by dismissing some jurors improperly and failing to dismiss others.

1. Juror 49

¶ 11 Based on Juror 49's responses to the juror questionnaire, the trial court excused that juror because serving on the jury would interfere with her school schedule. Prospective jurors “shall” be excused if serving on a jury would cause “undue or extreme physical or financial hardship,” A.R.S. § 21–202(B)(4), or “undue or extreme hardship under the circumstances,” id. § 21–202(B)(6). Payne initially expressed concern about dismissing Juror 49 “without more questioning,” but did not object to her dismissal after the court explained the reasons for dismissing her. We thus review the decision to strike Juror 49 for fundamental error. See State v. Moody, 208 Ariz. 424, 449–50 ¶ 85, 94 P.3d 1119, 1144–45 (2004); State v. Cañez ( Cañez I ), 202 Ariz. 133, 147 ¶ 30, 42 P.3d 564, 578 (2002).

¶ 12 In her questionnaire, Juror 49 said that service would pose a substantial hardship because she was a student and had classes on trial days. Payne claims there was discriminatory intent in her dismissal, but points to no evidence of such intent. Given the student's school-related conflict and lack of evidence of discriminatory intent, the judge did not commit fundamental error by excusing her.

2. Juror 74

¶ 13 The trial court dismissed Juror 74 for cause based on hardship and her opposition to the death penalty. Juror 74's questionnaire stated that she belonged to a group advocating the abolition of the death penalty, would never vote to impose it under any circumstances, and was personally, morally, or religiously opposed to capital punishment. She also indicated that serving would cause undue hardship because she planned to accompany her elderly parents to the east coast twice during the scheduled trial period. Over Payne's objection, the trial court dismissed the juror without affording Payne an opportunity to rehabilitate her. We review this ruling for an abuse of discretion. See State v. Dann ( Dann III ), 220 Ariz. 351, 362 ¶ 35, 207 P.3d 604, 615 (2009).

¶ 14 A week after dismissing Juror 74, the court informed counsel that it wanted to bring her in for questioning in light of State v. Anderson ( Anderson I ), 197 Ariz. 314, 324 ¶ 23, 4 P.3d 369, 379 (2000). The court arranged a conference call with Juror 74. She was not under oath for the call, which occurred while she was in an Alabama airport between flights. When asked if she could set aside her feelings about the death penalty, she responded, “I cannot, I cannot participate in a process that allows the State to initiate death.” She reiterated this view several times in response to questions from the court and counsel. She also affirmed that she planned to be out of town twice during trial to accompany her parents while they traveled. She had also accepted a job in Florida after being dismissed from the jury panel. Over Payne's objection, the court again dismissed Juror 74.

¶ 15 A prospective juror who will automatically vote for or against the death penalty or will suffer a hardship may be removed for cause. A.R.S. § 21–202(B)(4)(c); State v. Speer, 221 Ariz. 449, 454–55 ¶ 23, 212 P.3d 787, 792–93 (2009). We find no error in the court's dismissal.

¶ 16 Despite Juror 74's seemingly settled position on the death penalty and her travel plans, the trial court erred by failing to afford Payne an opportunity to rehabilitate her under oath. SeeAriz. R.Crim. P. 18.5(d) (providing that upon request, the court “shall permit that party a reasonable time to conduct a further oral examination of the prospective jurors”). Although defense counsel was able to ask rehabilitating questions during the telephonic conference, Juror 74 was not then under oath. Citing Anderson I, Payne argues that this constituted fundamental or structural error.

¶ 17 But while Anderson I found the dismissal of jurors without adequate questioning to be structural error, the jurors there had expressed only equivocal objections to the death penalty and the defendant was not afforded any opportunity to rehabilitate them. 197 Ariz. at 319 ¶ 10, 324 ¶ 23, 4 P.3d at 374, 379. Here, in contrast, defense counsel was permitted to telephonically question the single juror who stated her unequivocal opposition to the death penalty.

¶ 18 Juror 74's objections to the death penalty remained definite and unshakable, and her telephonic responses remained consistent with those on her questionnaire. That questionnaire states that the responses “have the effect of a statement given to the Court under oath.” Given these circumstances,the error was not fundamental or structural, nor did it prejudice Payne.

3. Juror 146

¶ 19 Payne argues that the trial court erred by dismissing Juror 146 for cause based on her objections to the death penalty because, in response to another question, she indicated that she could follow the law. Juror 146's questionnaire indicated that she was personally, morally, or religiously opposed to the death penalty and would never vote for it under any circumstances. She also stated that she could not vote for a death sentence even if she felt it appropriate after hearing the evidence, instructions, and deliberating. Yet in response to other questions, she indicated that she would follow instructions and keep an open mind regarding aggravating and mitigating circumstances.

¶ 20 After the process was explained, she said, “I cannot be responsible for putting a person to death even if they met [the] qualifications.” When asked if she could vote to impose death if the law required, she said that she would follow instructions, but...

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