State v. Rushing
| Decision Date | 06 November 2017 |
| Docket Number | No. CR-15-0268-AP.,CR-15-0268-AP. |
| Citation | 404 P.3d 240 |
| Parties | STATE of Arizona, Appellee, v. Jasper Phillip RUSHING, Appellant. |
| Court | Arizona Supreme Court |
Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor General, Lacey Stover Gard, Chief Counsel, Capital Litigation Section, Tucson, Ginger Jarvis (argued), Assistant Attorney General, Phoenix, Attorneys for State of Arizona
Sharmila Roy (argued), Laveen, Attorney for Jasper Phillip Rushing
¶ 1 Jasper Phillip Rushing was sentenced to death after a jury found him guilty of first degree murder. We have jurisdiction over this automatic appeal under article 6, section 5(3) of the Arizona Constitution and A.R.S. § 13–4031.1 We affirm Rushing's conviction. To comply with the United States Supreme Court's decision in Lynch v. Arizona , ––– U.S. ––––, 136 S.Ct. 1818, 195 L.Ed.2d 99 (2016) (" Lynch II "), we vacate the death sentence and remand for a new penalty phase proceeding.
¶ 2 In August 2010, Rushing and victim Shannon P. were imprisoned in the Lewis Prison Complex. They were temporarily housed together in an isolation cell after each expressed safety concerns with his prior assigned housing. The cell was designed for one person. It had one bed, but prison staff provided a floor mattress so each man had a place to sleep.
¶ 3 On September 10, Rushing killed Shannon while in their cell. There were no witnesses. Corrections officer Joel Valdovinos said nothing seemed unusual when he conducted hourly welfare checks of the inmates that morning. And when Rushing was temporarily removed from the cell around 10:30 a.m. for a prisoner count, he was calm and pleasant.
¶ 4 Just before 1:00 p.m., Valdovinos opened the "food trap" in the cell door to serve lunch. He could not see inside the cell because it was dark, as it had been all morning. An investigator later determined that the cell light was broken. Rushing "put his face to the trap" and said, Valdovinos asked if Rushing was being serious or lying, and Rushing replied, "No ... I beat him up and I think I killed him." Using a flashlight, Valdovinos illuminated the cell and saw Shannon lying on the bed with a "large gash in his throat." Valdovinos asked Rushing what weapon he had used to inflict the injuries, and Rushing said he used "a razor blade he had on the sink."
¶ 5 Valdovinos immediately called for help, and then told Rushing to turn around so he could cuff him through the trap door. Rushing responded, "can I have a sip of coffee real quick?" After Valdovinos replied, Rushing nevertheless "took a sip ... turned around, put his hand[s] through the trap," and Valdovinos handcuffed him.
¶ 6 After more officers arrived, Rushing was removed from the cell. According to an officer, Shannon was found unconscious but alive, lying face up on the bunk with his throat "clearly" cut and "his head and his left arm kind of draped over on the ground." His His severed penis was found on the floor. Shannon could not be resuscitated, and he died en route to the hospital. A medical examination later determined Shannon died from "blunt force and sharp force injury," but could not identify the order of injuries to his head
, face, neck, and penis.
¶ 7 Two weapons were found in the cell: (1) a bloody disposable razor, wrapped on one end with cellophane to form a handle, and (2) a thick, rolled-up, soft-cover book contained within a sock, which, in turn, had been wrapped in a sheet.
¶ 8 The State indicted Rushing on one count of premeditated first degree murder pursuant to A.R.S. § 13–1105 and sought the death penalty. That Rushing killed Shannon was not contested at trial; the only issue was whether he did so with premeditation. The jury found Rushing guilty as charged. In the aggravation phase, the jury found three aggravating factors: (1) Rushing had been previously convicted of another offense for which life imprisonment or death could be or had been imposed, see A.R.S. § 13–751 (F)(1) ; (2) Rushing committed the offense in an especially heinous or depraved manner, see id. § 13–751(F)(6) ; and (3) Rushing committed the offense while in the custody of the state department of corrections, see id. § 13–751(F)(7)(a). After considering mitigation evidence, the jury determined that Rushing should be sentenced to death.
¶ 9 After officers responded to Valdovinos's request for help, they removed the handcuffed Rushing from the cell. Without first advising Rushing of his Miranda rights, corrections officer Trujillo asked him "what he had used to assault [Shannon]." Rushing answered that he had used "rolled up magazines to beat [Shannon] unconscious and then used a razor blade with a small handle to cut his neck and to cut off the penis" (hereafter, the "Trujillo statement").
¶ 10 Before trial, Rushing moved to suppress the Trujillo statement, arguing it was made involuntarily and obtained in violation of Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The prosecutor responded that she did not intend to call Trujillo as a witness. Relying on this avowal, the trial court considered the matter moot and did not decide the statement's admissibility.
¶ 11 During the trial's guilt phase, corrections Sergeant Damian Ryan testified he heard Rushing "talking about the assault" with an unnamed officer soon after Rushing was pulled from the cell. Neither the prosecutor nor defense counsel asked Ryan to relate what he had overheard. But, without objection, the trial court posed a juror's question, which elicited the Trujillo statement:
The prosecutor and defense counsel each asked follow-up questions confirming what Ryan overheard. Also, without objection, the prosecutor later elicited an opinion from Dr. John Hu, the medical examiner who conducted the autopsy, that the order of injuries described in the Trujillo statement was consistent with Shannon's wounds
. Finally, the prosecutor referred to the Trujillo statement repeatedly during closing argument to argue that the murder was premeditated—the only issue at trial.
¶ 12 Rushing argues that the trial court violated his Fifth Amendment rights by admitting the Trujillo statement. The State does not dispute that introducing the statement was error. The parties disagree, however, on whether the error should be evaluated under the fundamental error or harmless error standard of review.
¶ 13 The State argues that Rushing waived the issue by failing to object to the juror's question, and fundamental error review is therefore appropriate. The State alternatively argues that Rushing "invited any possible error by agreeing to permit the trial court to ask the juror's question that led to Sergeant Ryan's answer." Rushing contends he preserved his objection through the motion to suppress, and harmless error review is therefore warranted.
¶ 14 Rushing did not invite the error. The invited error doctrine prevents a party from injecting error into the record and then profiting from it on appeal. State v. Logan , 200 Ariz. 564, 566 ¶ 11, 30 P.3d 631, 633 (2001). Defense counsel did not inject the error here by asking Ryan to relate what he had overheard. A juror posed that question to the trial judge, who asked it of Ryan. Defense counsel's failure to object to the question constitutes waiver, not invited error.
¶ 15 Although Rushing moved pre-trial to prevent the State from introducing the Trujillo statement, the court did not rule on the merits, as the State disclaimed any intent of offering the statement. But even if the trial court had ruled on the motion to suppress, Rushing needed to object to the juror's question to preserve the issue for appeal. The earlier motion preserved Rushing's objection to the prosecution introducing the contested statement. But the prosecutor did not elicit the statement from Sergeant Ryan; a juror did through the judge. When the judge read the proposed juror question to counsel for both sides outside the jury's hearing, defense counsel was required to raise any objection then, but he did not. Cf. Matchett v. State , 257 Ga. 785, 364 S.E.2d 565, 567 (1988) (); Handy v. State , 201 Md.App. 521, 30 A.3d 197, 211 (2011) ().
¶ 16 "A fundamental error is error that goes to the foundation of the case, takes from the defendant a right that is essential to his defense, and is of such magnitude that the defendant could not possibly have received a fair trial." State v. Escalante–Orozco , 241 Ariz. 254, 272 ¶ 40, 386 P.3d 798, 816 (2017) (citing State v. Henderson , 210 Ariz. 561, 567 ¶ 19, 115 P.3d 601, 607 (2005) ). The defendant must prove that the error was fundamental and that it prejudiced him. Id .
¶ 17 Focusing on the latter requirement, Rushing argues he was prejudiced by admission of the Trujillo statement because it tended to show premeditation. The medical examiner could not determine the order in which Rushing inflicted Shannon's wounds
. Without the Trujillo statement,...
To continue reading
Request your trial
-
State v. Robinson
...inflict violence after he knew or should have known that a fatal action had occurred.’ " State v. Rushing , 243 Ariz. 212, 220 ¶ 33, 404 P.3d 240, 248 (2017) (emphasis omitted) (quoting Gunches , 225 Ariz. at 25–26 ¶ 16, 234 P.3d at 593–94 ). Both parties’ medical experts agreed S.H. would ......
-
State v. Champagne
...v. Bush , 244 Ariz. 575, 591 ¶¶ 66–68, 423 P.3d 370, 386 (2018). We review whether the trial court properly instructed the jury de novo. State v. Rushing , 243 Ariz. 212, 221 ¶ 36, 404 P.3d 240, 249 (2017). ¶23 Champagne is ineligible for parole under Arizona law. See A.R.S. § 41-1604.09(I)......
-
State v. Smith
...to sit in this matter.1 We view the facts in the light most favorable to sustaining the jury's verdict. State v. Rushing , 243 Ariz. 212, 216 n.2, 404 P.3d 240, 244 n.2 (2017).2 State v. Dessureault , 104 Ariz. 380, 453 P.2d 951 (1969).3 The court of appeals recently issued an opinion that ......
-
State v. Escalante
...prejudicial error—but does not foreclose appellate review by inviting error. See State v. Rushing , 243 Ariz. 212, 217 ¶ 14, 404 P.3d 240 (2017).¶39 The court of appeals also concluded that Escalante failed to show that without the profile evidence a reasonable jury could have reached a dif......