State v. Roque

Citation141 P.3d 368,213 Ariz. 193
Decision Date14 August 2006
Docket NumberNo. CR-03-0355-AP.,CR-03-0355-AP.
PartiesSTATE of Arizona, Appellee/Cross-Appellant, v. Frank Silva ROQUE, Appellant/Cross-Appellee.
CourtArizona Supreme Court

Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Capital Litigation Section, Phoenix, Vincent L. Rabago, Assistant Attorney General, Tucson, Attorneys for the State of Arizona.

James J. Haas, Maricopa County Public Defender by Stephen R. Collins, Deputy Public Defender, Anna M. Unterberger, Deputy Public Defender, Phoenix, Attorneys for Frank Silva Roque.


BERCH, Vice Chief Justice.

¶ 1 In September 2003, a jury found Appellant Frank Silva Roque guilty of first degree murder, attempted first degree murder, reckless endangerment, and three counts of drive-by shooting. He was sentenced to death for the murder. This court has jurisdiction of this capital appeal under Article 6, Section 5(3) of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") section 13-4031 (2001).


¶ 2 Frank Roque was at work at Boeing on September 11, 2001, when he heard the news of the terrorist attacks in New York, Pennsylvania, and Washington, D.C. When Roque returned home that afternoon, he cried uncontrollably and babbled incoherently as he watched the news coverage of the attacks. Roque also cried and carried on that evening when he phoned his brother, Howard.

¶ 3 Although Roque normally never missed work, he stayed home on September 12. When a colleague from Boeing called Roque that evening or the next, Roque told him that he wanted to shoot some "rag heads," referring to people Roque perceived to be of Arab descent.

¶ 4 On the morning of September 15, Roque drank approximately three twenty-five-ounce cans of beer. Early that afternoon, Roque drove his truck to a Chevron gas station in Mesa. The owner of the gas station, Balbir Singh Sodhi, a Sikh of Indian descent who wore a turban, was standing outside talking to landscape worker Louis Ledesma, who was down on his knees. Roque fired five or six shots through the open window of his truck, killing Sodhi. He then sped off.

¶ 5 Roque next drove to a home that he had previously owned and had sold to the Sahaks, an Afghan couple. From the driver's side of his truck, he fired at least three shots at the house. Although family members were home, nobody was injured. Then Roque drove to a Mobil gas station, where he fired seven shots through the convenience store window at store clerk Anwar Khalil, a man of Lebanese descent. Five bullets struck below the store counter and two bullets struck above it, but Khalil was not hit. Roque sped off in his truck. That afternoon, Roque was seen in several area bars, where he reportedly paced, cried, talked gibberish, and ranted at the televisions.

¶ 6 The police investigation of the shootings soon led to Roque, and he was arrested at his home on the evening of September 15. When the police arrived, Roque immediately put his hands in the air and said, "I'm a patriot and American. I'm American. I'm a damn American." As they drove to the police station in the patrol car, Roque yelled at the arresting officers, "How can you arrest me and let the terrorists run wild?" Roque added, "I wish that my punishment would be sending me to Afghanistan with a lot of [expletive] weapons."

¶ 7 Roque was brought to trial for the first degree murder of Balbir Sodhi, attempted first degree murder of Anwar Khalil, reckless endangerment of Louis Ledesma, and drive-by shootings at the Chevron station, the Mobil station, and the Sahak residence. The State filed a notice of intent to seek the death penalty, asserting two aggravating circumstances: Roque "was previously convicted of a serious offense," A.R.S. § 13-703(F)(2) (Supp.2003), and, in committing the murder, Roque "knowingly created a grave risk of death to another person or persons in addition to the person murdered during the commission of the offense," A.R.S. § 13-703(F)(3).

¶ 8 The State's theory of the case was that the shootings were intentional acts of racism. Roque did not deny the shootings, but pursued an insanity defense. Six experts — three psychiatrists and three psychologists — testified at trial regarding Roque's mental health.

¶ 9 The same jury sat for the guilt proceeding and the sentencing proceeding. The jury found Roque guilty of all charges and rendered a verdict of death for the murder. The court imposed aggravated sentences of 12 years each for the attempted first degree murder and drive-by shooting convictions and 1.25 years for the reckless endangerment conviction.1


¶ 10 Roque raises thirty issues on appeal and identifies ten additional issues to avoid preclusion. The State raises one issue on cross appeal.

A. Jury Selection
1. Peremptory Strike of Veniremember

¶ 11 During jury selection, the trial court denied Roque's challenge to the State's peremptory strike of Juror 97, an African American veniremember. In Batson v. Kentucky, the Supreme Court held that excluding a potential juror on the basis of race violates the Equal Protection Clause of the Fourteenth Amendment. 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

¶ 12 We review a trial court's decision regarding the State's motives for a peremptory strike for clear error. State v. Murray, 184 Ariz. 9, 24, 906 P.2d 542, 557 (1995). "We give great deference to the trial court's ruling, based, as it is, largely upon an assessment of the prosecutor's credibility." State v. Cañez, 202 Ariz. 133, 147, ¶ 28, 42 P.3d 564, 578 (2002).

¶ 13 A Batson challenge proceeds in three steps: "(1) the party challenging the strikes must make a prima facie showing of discrimination; (2) the striking party must provide a race-neutral reason for the strike; and (3) if a race-neutral explanation is provided, the trial court must determine whether the challenger has carried its burden of proving purposeful racial discrimination." Id. at 146, ¶ 22, 42 P.3d at 577 (citing Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)).

¶ 14 The trial court found that Roque made a prima facie case of discrimination, satisfying the first step. To satisfy the second, the prosecutor offered three race-neutral reasons for the strike: (1) Juror 97 had a brother in prison; (2) he had some personal problems with police officers that he attributed to racial motivation; and (3) he expressed his belief that the death penalty is imposed more frequently on members of minority groups. Roque offered nothing further to support his challenge. The trial court ruled that the State's peremptory strike was not racially motivated and did not constitute purposeful discrimination.

¶ 15 Because the Defendant bears the burden to prove purposeful discrimination, this court will not reverse the trial court's determination unless the reasons provided by the State are clearly pretextual. No such pretext is evident in this record. The veniremember's statements provide valid reasons for the prosecutor to question this potential juror's impartiality. Antipathy toward the police alone may constitute a valid reason to strike jurors when the State's case relies on police testimony. Moreover, the prosecutor did not strike all African American jurors from the panel. Although not dispositive, "the fact that the state accepted other [minority] jurors on the venire is indicative of a nondiscriminatory motive." State v. Eagle, 196 Ariz. 27, 30, ¶ 12, 992 P.2d 1122, 1125 (App. 1998), aff'd, 196 Ariz. 188, 994 P.2d 395 (2000). Roque did not prove purposeful racial discrimination. Accordingly, the trial court did not clearly err in allowing the strike of Juror 97.

2. Excusing Veniremembers Who Objected to the Death Penalty

¶ 16 Roque contests the exclusions for cause of Veniremembers 9, 49, and 88, who expressed doubt that they could impose the death penalty. We review a trial court's decision to strike potential jurors for cause for an abuse of discretion, State v. Glassel, 211 Ariz. 33, 47, ¶ 46, 116 P.3d 1193, 1207 (2005), deferring to the trial judge's superior opportunity to observe the jurors' demeanor and credibility, see Wainwright v. Witt, 469 U.S. 412, 428, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).

¶ 17 In a capital case, the judge may exclude for cause those jurors who would never vote for the death penalty, but not those who have "conscientious or religious scruples against the infliction of the death penalty" that they could set aside. Witherspoon v. Illinois, 391 U.S. 510, 515 & n. 9, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). To serve as a basis for exclusion, the juror's views must "prevent or substantially impair the performance of his duties as a juror." Wainwright, 469 U.S. at 424, 105 S.Ct. 844 (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980)); see also State v. Anderson (Anderson I), 197 Ariz. 314, 318-19, ¶ 9, 4 P.3d 369, 373-74 (2000). The State need not prove a juror's opposition to the death penalty with "unmistakable clarity," Wainwright, 469 U.S. at 424, 105 S.Ct. 844, but follow-up questions should be asked if written responses do not show that the juror will be able to follow the law, Anderson I, 197 Ariz. at 319, ¶ 10, 4 P.3d at 374.

¶ 18 Based on a juror's comments and demeanor, a judge may excuse even a juror who promises to apply the law. In Glassel, for example, "juror 16" called the death penalty "barbaric" and said he was "absolutely" against it on a written questionnaire, but then promised to apply the law during voir dire questioning. 211 Ariz. at 48, ¶ 49, 116 P.3d at 1208. This court upheld the exclusion for cause of that juror. Id. ¶ 50. "[E]ven assuming that juror 16 was sincere about being able to...

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