State v. Rose

• Decision Date: 05 April 2013
• Docket Number: No. CR–10–0362–AP.,CR–10–0362–AP.
• Citation: 297 P.3d 906,231 Ariz. 500
• Parties: STATE of Arizona, Appellee, v. Edward James ROSE, Appellant.
• Court: Arizona Supreme Court

231 Ariz. 500

297 P.3d 906

STATE of Arizona, Appellee,

v.Edward James ROSE, Appellant.

No. CR–10–0362–AP.

Supreme Court of Arizona.

April 5, 2013.

Thomas C. Horne, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation, Jeffrey A. Zick, Section Chief Counsel, Criminal Appeals/Capital Litigation, Phoenix, Laura Chiasson, Assistant Attorney General, Tucson, Attorneys for State of Arizona.

Thomas A. Gorman Attorney at Law by Thomas A. Gorman, Sedona, Attorney for Edward James Rose.

OPINION

PELANDER, Justice.

¶ 1 After fatally shooting a police officer, Edward James Rose pleaded guilty to two counts of first degree murder for that killing and to eight other felony counts. He was sentenced to death on the murder counts and to prison terms on the other convictions. We have jurisdiction over his automatic appeal under Article 6, Section 5(3) of the Arizona Constitution and A.R.S. §§ 13–4031 and –4033(A)(1).

I. FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 On July 25, 2007, Rose stole a truck that contained a company's checkbook. Over the next three days, Rose conspired with others to forge and cash checks from the checkbook.

¶ 3 On July 27, Rose and his girlfriend smoked methamphetamine and drank beer most of the day. That night, they went out to cash forged checks. Rose had said earlier that day he would shoot anyone who tried to stop him. Armed with a gun, Rose entered a check cashing store and presented one of the company's checks to the cashier. She discovered the check was forged and called the police.

¶ 4 Shortly thereafter, Officer George Cortez, Jr. of the Phoenix Police Department arrived. The officer entered the store, approached Rose, and began to handcuff him. After his left hand was cuffed, Rose pulled out his gun and shot the officer twice, killing him. Rose ran from the store with the handcuffs dangling from his wrist. Surveillance cameras captured the shooting.

¶ 5 Early the next morning, officers went to a house where they suspected Rose was hiding. They eventually entered the house, discovered Rose hiding in a closet, and arrested him.

¶ 6 The State charged Rose with first degree murder of a law enforcement officer, first degree felony murder, and other noncapital felonies. On the day Rose's trial was to begin, he pleaded guilty to all charges. After finding four aggravating factors in the aggravation phase, and receiving evidence in the penalty phase, the jury sentenced Rose to death.

II. ISSUES ON APPEAL

A. Arraignment and absence from jury prescreening

¶ 7 Rose argues that he was denied an arraignment and the ability to participate in the first three days of jury selection in violation of the Fifth, Sixth, and Fourteenth Amendments. Because Rose did not object below, we review for fundamental error. State v. Henderson, 210 Ariz. 561, 567 ¶ 19, 115 P.3d 601, 607 (2005).

¶ 8 Contrary to Rose's first contention, the record indicates he was arraigned on August 17, 2007, when he entered a plea of “not guilty to all charges.” A week earlier, he and his counsel received notice of the indictment, including the two first degree murder counts. He did not object below to any alleged flaws in the arraignment process, and he has not established any error in that process.

¶ 9 Rose's argument regarding his absence from the initial portions of jury selection is also meritless. A defendant is entitled to be present at all phases of a trial, including jury selection. Ariz. R.Crim. P. 19.2; State v. Garcia–Contreras, 191 Ariz. 144, 146 ¶ 8, 953 P.2d 536, 538 (1998). But a defendant “may waive the right to be present at any proceeding by voluntarily absenting himself or herself from it.” Ariz. R.Crim. P. 9.1. And “a trial court may rely on counsel's waiver of a defendant's right to be present” in certain circumstances; “personal waiver by the defendant is not required.” State v. Canion, 199 Ariz. 227, 234 ¶ 26, 16 P.3d 788, 795 (App.2000); see also State v. Collins, 133 Ariz. 20, 23, 648 P.2d 135, 138 (App.1982) (“Unless the circumstances are exceptional, a defendant is bound by his counsel's waiver of his constitutional rights.” (citing Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965); State v. Rodriguez, 126 Ariz. 28, 612 P.2d 484 (1980))).

¶ 10 The record reflects that Rose, through counsel, waived his presence for the first two days of jury selection, which involved the trial judge “time screening” potential jurors on the anticipated length of trial and their availability. Rose was under a medical quarantine for at least the first day, did not object to his absence on either day, and presents no exceptional circumstances that would render ineffective his attorney's waiver. On the third day, when the parties merely stipulated to which jurors did not need to return for additional questioning, the court granted defense counsel time to contact Rose before proceeding. Rose specifically told his attorney that he waived his presence. Rose was present on the next trial day and throughout the rest of jury selection and trial. Even if we assume that Rose, absent his waiver, “was entitled to attend the [juror] prescreening process,” State v. Morris, 215 Ariz. 324, 335 ¶ 45, 160 P.3d 203, 214 (2007), no fundamental error arose regarding Rose's absence from three days of that process.

B. Exclusion of non-English speaking jurors

¶ 11 Rose argues that the exclusion of non-English speaking jurors violated his Sixth and Fourteenth Amendment rights and that A.R.S. § 21–202(B)(3) is unconstitutional. That statute provides that persons “shall be excused temporarily from service as a juror if the judge or jury commissioner finds” that “[t]he prospective juror is not currently capable of understanding the English language.” We have previously considered and rejected the arguments Rose makes. See State v. Cota, 229 Ariz. 136, 143 ¶¶ 13–16, 272 P.3d 1027, 1034 (2012).

C. Voluntariness of guilty plea

¶ 12 Rose argues on multiple grounds that his guilty plea was involuntary and not made knowingly and intelligently. This Court reviews a trial court's acceptance of a guilty plea for an abuse of discretion. State v. Djerf, 191 Ariz. 583, 594 ¶ 35, 959 P.2d 1274, 1285 (1998). We “must determine if reasonable evidence supports the finding that the defendant was competent to enter the plea” and will consider the facts “in a light most favorable to sustaining the trial court's finding.” Id. (internal quotation marks omitted).

¶ 13 When accepting a guilty plea, the trial judge must ensure that the plea is entered voluntarily, intelligently, and knowingly. Id. To ensure this, Arizona Rule of Criminal Procedure 17.2 requires the court to “address the defendant personally in open court” and inform the defendant fully of his or her rights and the consequences of pleading guilty. “What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence.” Boykin v. Alabama, 395 U.S. 238, 243–44, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The trial court must ensure that the defendant understands:

(1) the nature of the charges, (2) the nature and range of possible sentences, including any special conditions, (3) the constitutional rights waived by pleading guilty, (4) the right to plead not guilty, and (5) that the right to appeal is also waived if the defendant is not sentenced to death.

Djerf, 191 Ariz. at 594 ¶ 36, 959 P.2d at 1285;see alsoAriz. R.Crim. P. 17.2; Boykin, 395 U.S. at 243, 89 S.Ct. 1709.

¶ 14 Rose first argues his plea was not voluntary because he was not arraigned and never received actual notice of the capital offenses to which he pleaded guilty. But as discussed above, supra ¶ 8, the record shows that, after receiving notice of the indictment, Rose was arraigned and pleaded “not guilty to all charges.”

¶ 15 At the subsequent change-of-plea proceeding, Rose acknowledged he had discussed with his counsel “the pros and cons” of pleading guilty and that it was his “free choice to plead guilty to these charges.” The trial court expressly told Rose he had “several charges pending” against him, “with the most serious charges” being the two “first degree murder” counts, for which he could face “a death penalty.” The court later repeated the first degree murder charges before asking Rose what his plea on each count was, to which he responded “[g]uilty.”

¶ 16 These facts distinguish this case from Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976), on which Rose relies. There, the defendant pleaded guilty to second degree murder without any “indication that the nature of the offense had ever been discussed with [him].” Id. at 642–43, 96 S.Ct. 2253. No one informed the defendant that intent, an element that he explicitly denied, was required for the charged offense. Id. at 643, 96 S.Ct. 2253.

¶ 17 Here, in contrast, Rose's attorney avowed, and Rose acknowledged, that she had discussed the charges and the consequences of pleading guilty with Rose, who did not dispute the factual basis of his plea or whether the required mens rea was sufficiently established. The trial court had no obligation to advise Rose of each specific element of his crimes “[a]bsent the unique circumstances of Henderson v. Morgan.” State v. Devine, 114 Ariz. 574, 575, 562 P.2d 1072, 1073 (1977); cf. State v. Ovante, 231 Ariz. 180, 185 ¶ 17, 291 P.3d 974, 979 (2013) (“The trial court was not required to explain the distinction between first and second degree murder and was free to accept the guilty plea if it was satisfied that the record established premeditation.”).

¶ 18 Second, Rose argues the trial court failed to review a written plea agreement with him. But no plea agreement existed or was required. The law only requires Rose's plea to have been made voluntarily, intelligently, and knowingly, regardless of...