State v. Serna

• Decision Date: 23 January 1990
• Docket Number: No. CR-87-0183-AP,CR-87-0183-AP
• Citation: 163 Ariz. 260,787 P.2d 1056
• Parties: STATE of Arizona, Appellee, v. John A. SERNA, Appellant.
• Court: Arizona Supreme Court

Page 1056

787 P.2d 1056

163 Ariz. 260

STATE of Arizona, Appellee, v. John A. SERNA, Appellant.

No. CR-87-0183-AP.

Supreme Court of Arizona, In Banc.

Jan. 23, 1990.

Robert K. Corbin, Atty. Gen. by Jack Roberts, Asst. Atty. Gen., Phoenix, for appellee.

George M. Sterling, Jr., Phoenix, for appellant.

MOELLER, Justice.

JURISDICTION

Defendant, John Angel Serna, was convicted by a jury of premeditated first degree murder. Following an aggravation/mitigation hearing, he was sentenced to death. Appeal to this court is automatic pursuant to Rules 26.15 and 31.2(b), Ariz.R.Crim.P., 17 A.R.S. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. §§ 13-4031 and -4035.

QUESTIONS PRESENTED

1. Whether, despite the trial court's Willits instruction, defendant was denied a fair trial when the state allegedly lost or destroyed evidence.

2. Whether the state knowingly concealed a secret grant of immunity to a material witness in the case.

3. Whether the trial court erred in excluding evidence of the victim's prior bad acts.

4. Whether the state unjustifiably interfered with defendant's right to counsel.

5. Whether the facts justify imposition of the death penalty.

6. Whether the Arizona Constitution requires jury sentencing in death penalty cases.

FACTS

Because of the nature of some of the issues raised on appeal, we set forth the facts in some detail. On Friday, June 21, 1985, inmate Patrick Chavarria was scheduled for transfer from the prison at Florence to the prison at Tucson. Due to an error on his transfer order, Chavarria was sent to the Perryville prison instead of Tucson. Upon arrival at the Perryville unit where he was to be housed, Chavarria alerted Correctional Services Officer (CSO) Luna to the error, and was, in turn, told that the error would be corrected Monday morning. Chavarria asked CSO Luna whether inmates Danny Peru and Tommy Contreras were housed at Perryville. Although expressing no fear of them, he said that he did not want to be in the same unit with them. Before leaving his post that evening, CSO Luna warned CSO Elarton of possible trouble.

Within two hours of Chavarria's arrival at Perryville, he was found dead in the laundry room. He had suffered a shattering blow to his left kneecap that would have made it impossible for him to stand, and several blows to the back of his head from a blunt instrument.

Upon discovery of Chavarria's body, the guards ordered a lockdown. A search of the laundry room revealed the murder weapon, an eighteen-inch metal bar with one end wrapped in masking tape, discarded in a trash can. Also found in the trash can was a pair of gray leather gloves, and a knit bag was found inside a still-spinning dryer. The bag had a Department of Corrections (DOC) number and the name "Tommy Contreras" on it. Investigators Vignault, McPheron and Babb proceeded to Contreras' cell, where they seized a pair of shower thongs with stains on them. Tests later revealed that the stains were not blood. There is conflicting testimony as to whether some wet clothing was also seized from Contreras' cell.

The day after the murder, an inmate, Anthony Apodaca, informed DOC investigators that he had information about the murder, but would give details to them only if Nolan Thompson, an investigator from Florence in whom he had previously confided, came to Perryville. Thompson went to Perryville on June 23.

Apodaca related to Thompson that in the early evening of June 21, while lying on the bunk in his cell, Serna entered his room, dropped a length of steel pipe and said, "Well, I'm not going to let something happen to me like David." When Apodaca asked what Serna meant, Serna replied that "Pat" (Chavarria) was at Perryville, and that, "he was going to down Pat before Pat downed him." Serna then said that Pat was in Diablo's (Tommy Contreras') cell. Serna asked for tape, which Apodaca gave him; Serna taped one end of the steel bar and put it underneath the bed. Next, Serna asked to borrow gloves. Because Apodaca had none, Apodaca went next door and got gloves. Serna put the gloves on, reached under Apodaca's mattress, retrieved the steel bar and hit it against his hand as if to test the grip of the gloves. Serna indicated that he wanted to kill Chavarria right then; Apodaca tried to dissuade him by telling him that it was "crazy" and that it would create a lot of problems for inmates. Although Apodaca's roommate, Abel Rodriguez, had been momentarily in the room when Serna entered, he left shortly thereafter when Apodaca told him to.

About twenty minutes after the Serna-Apodaca conversation, Apodaca, standing outside his cell, saw "Diablo" (Tommy Contreras), "Joker" (Michael de la Rosa), "Wheelo" (Jerry Contreras, Tommy's brother), and Chavarria emerge from Tommy Contreras' cell. Chavarria and Tommy Contreras walked toward the laundry room. Contreras got on top of a washing machine while Chavarria stood at an angle talking to him.

Apodaca then returned to his cell. Serna was there, but left shortly thereafter with pipe in hand, saying, "Now I can get him." Apodaca could see into the laundry room from outside his cell. Apodaca said that as soon as Serna entered the laundry room, Tommy Contreras ran out "like a jack rabbit." Serna cornered Chavarria and hit him with the steel pipe three or four times.

Serna, who was wearing a grey sweat shirt and pants, cut-off jeans over the sweat pants, and white high-top leather tennis shoes, returned to Apodaca's cell after the attack. Apodaca washed Serna's bloody sweat pants in cold water. Serna removed his shoes and washed them in the toilet; because he could not get all the blood out of the shoestrings, he flushed the shoestrings down the toilet. Having washed the clothes, Serna put on the wet sweat pants and shoes and walked down the stairs.

After the interviews with Apodaca, DOC investigators confiscated a pair of cut-off jeans, a sweat shirt, and sweat pants and white leather high-top tennis shoes from Serna's cell. Serna's cut-off jeans had a very small smear of type AB blood. The victim's blood type was AB and the blood on the murder weapon and on the gloves found in the laundry room were also of the AB type. Criminalist Susan Narveson testified that only two percent of the Hispanic population have an AB blood type.

Serna's first trial ended in a hung jury. After his second trial, the jury returned a verdict of guilty of first degree murder. Following denial of defendant's motion for new trial, the trial court held a presentence hearing pursuant to A.R.S. § 13-703. The trial court found the existence of two statutory aggravating circumstances: 1) the defendant had previously been convicted of felonies involving the use or threat of violence (A.R.S. § 13-703(F)(2)); and 2) the crime was committed while defendant was in custody of DOC (A.R.S. § 13-703(F)(7)). Finding no mitigating circumstances sufficient to outweigh the aggravating circumstances, the trial court sentenced Serna to death. This appeal followed.

DISCUSSION

1. Preservation of Evidence

Abel Rodriguez, Apodaca's cellmate, was an illegal alien. He was paroled on November 26, 1985, and delivered to the Immigration and Naturalization Service, which deported him to Mexico on December 5, 1985. Before trial, defendant moved to dismiss, alleging a violation of his sixth amendment and due process rights. He argued that Rodriguez was a material witness who was deported before defense counsel could interview him. The trial court denied the motion to dismiss, noting that defense counsel had four months to interview Rodriguez before he was deported and had failed to do so, and also noting that the nature of Rodriguez' testimony was wholly speculative. Defendant argues that the trial court erred in refusing to dismiss the case. We disagree.

The Supreme Court of the United States addressed a similar issue in United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982). In that case, the government deported potential witnesses after determining that they possessed no material evidence relevant to the criminal trial. The Supreme Court held:

[T]he responsibility of the Executive Branch faithfully to execute the immigration policy adopted by Congress justifies the prompt deportation of illegal-alien witnesses upon the Executive's good-faith determination that they possess no evidence favorable to the defendant in a criminal prosecution. The mere fact that the Government deports such witnesses is not sufficient to establish a violation of the Compulsory Process Clause of the Sixth Amendment or the Due Process Clause of the Fifth Amendment. A violation of these provisions requires some showing that the evidence lost would be both material and favorable to the defense.

458 U.S. at 872-73, 102 S.Ct. at 3449, 73 L.Ed. at 1206.

Defendant argues that because the state failed to interview Rodriguez before the federal government deported him, the state did not and could not make a good faith determination that Rodriguez did not possess material evidence. Although the state concedes that it did not interview Rodriguez prior to deportation, it argues that defendant, through counsel, had ample opportunity to identify and interview Rodriguez before he was deported. The state correctly points out that the identification of Rodriguez to defendant (assuming it was not known to him) was delayed by defendant's overly broad discovery motions. Defendant originally sought the names of all Apodaca's cellmates at all institutions at which he had been confined during the entire period of his lengthy incarceration, and the state objected because this would have covered more than 400 people. After a second discovery motion, the trial court ordered the state to disclose the names of Apodaca's cellmates for the six-month period prior to the murder and the state complied. By that time, Rodriguez had been deported.

While defendant's own actions arguably led to a...