State v. Velazquez
| Decision Date | 09 August 2007 |
| Docket Number | No. CR-04-0361-AP.,CR-04-0361-AP. |
| Citation | 166 P.3d 91,216 Ariz. 300 |
| Parties | STATE of Arizona, Appellee, v. Juan VELAZQUEZ, Appellant. |
| Court | Arizona Supreme Court |
Terry Goddard, Arizona Attorney General, by Kent E. Cattani, Chief Counsel Capital Litigation Section Patricia A. Nigro, Assistant Attorney General, Phoenix, Attorneys for State of Arizona.
Law Offices Of Richard D. Gierloff, P.C. by Richard D. Gierloff, Phoenix, Attorney for Juan Velazquez.
¶ 1 After convicting Juan Velazquez of seven counts of child abuse and one count of first degree murder, a jury determined that he should receive the death penalty for the murder. We have jurisdiction over this mandatory appeal under Article 6, Section 5(3), of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") section 13-4031 (2001).
¶ 2 In September 2001, Juan Velazquez was living with Virginia Venegas and her daughters, Isabella and Liana. Isabella was three years old, Liana was twenty months old, and Venegas was pregnant with Velazquez's child. Velazquez and Venegas had dated for about four months and had lived together for two months.
¶ 3 On the night of September 24, 2001, Velazquez severely beat Isabella. Venegas saw Velazquez shoving Isabella against a closet door. Venegas became upset and argued with Velazquez, who said he would move out. Later that night, the couple reconciled.
¶ 4 The next morning, Velazquez assaulted Liana while Venegas was at a job interview. Angry with the twenty-month-old girl, Velazquez held Liana's mouth shut to prevent her from crying, squeezed her stomach, and then repeatedly swept her feet out from under her, causing her to fall backwards and hit her head on the floor. After falling several times, Liana could not get up and did not respond to Velazquez's voice. Velazquez placed her on the couch and covered her with a pillow.
¶ 5 When Venegas returned home, Velazquez told her Liana was asleep on the couch and that Venegas should leave her alone. Velazquez showered and went to work. According to Velazquez, Liana was alive and breathing when he left. A few hours later, Venegas discovered that Liana was not breathing and called Velazquez to tell him that she thought Liana was dead. Velazquez told Venegas not to do anything until he returned.
¶ 6 When Velazquez arrived, Liana was in fact dead. Instead of calling 911, Velazquez went to his mother's house and got a cement rock and some wire. He tied the rock to Liana's body and had Venegas drive him to a canal, where he dumped Liana's body.
¶ 7 The next day, September 26, 2001, Venegas reported Liana missing. When police arrived, Velazquez said that he and Venegas had discovered only that morning that she was gone. An extensive search for Liana ensued.
¶ 8 Shortly after the search began, police contacted the girls' father. He came to the condominium where Venegas lived and immediately noticed that Isabella's face was swollen and bruised. Isabella was then examined at a hospital. She had extensive bruising, a skull fracture, and two cephalhematomas (bruises associated with swelling caused by bleeding under the surface bones of the skull). Isabella told police that Velazquez had hurt both her and Liana.
¶ 9 Police interviewed Velazquez and Venegas, who both initially denied any wrongdoing. Venegas was re-interviewed the next day, September 27, 2001, and she admitted that Liana was dead and that she had driven Velazquez to a canal where he had dumped the girl's body. Police then arrested Velazquez. Confronted with the information provided by Venegas, Velazquez confessed to killing Liana and assaulting Isabella. He also admitted that he had previously physically abused both girls. Police divers recovered Liana's body from the canal on September 28, 2001.
¶ 10 The medical examiner concluded that Liana died from blunt force trauma to her head. The autopsy revealed a "full thickness" skull fracture, internal hemorrhaging, and swelling of the brain. The swelling exerted pressure at the base of the skull, which impaired respiratory and cardiac functions and eventually caused Liana's death. Liana also had many other blunt force injuries to her head, face, and body. The medical examiner opined that Liana suffered at least six separate blows before her death.
¶ 11 Velazquez was indicted for the felony murder of Liana, three counts of child abuse for injuries suffered by Liana, and four counts of child abuse for injuries suffered by Isabella. On September 2, 2004, a jury convicted Velazquez of all charges. On October 8, 2004, the same jury determined that Velazquez should receive the death penalty for the murder after finding three aggravating factors: Velazquez had been previously convicted of a serious offense; the murder was especially cruel; and the victim was under the age of fifteen. See A.R.S. § 13-703(G)(2), (6), (9) (Supp.2001).1 Based on the verdicts, the trial judge sentenced Velazquez to death for the murder and imposed sentences with a cumulative length of sixty years for the non-capital crimes.
¶ 12 Velazquez raises nine issues on appeal. For the reasons discussed below, we affirm his convictions and sentences.
¶ 13 Velazquez challenges the trial court's excusing six potential jurors for cause under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and its progeny. We review a trial court's decision to strike a potential juror for cause for abuse of discretion. State v. Ellison, 213 Ariz. 116, 137 ¶ 88, 140 P.3d 899, 920, cert. denied, ___ U.S. ___, 127 S.Ct. 506, 166 L.Ed.2d 377 (2006).
¶ 14 Under the Sixth and Fourteenth Amendments to the United States Constitution, a criminal defendant is entitled to an impartial jury. Witherspoon, 391 U.S. at 518, 88 S.Ct. 1770; see also State v. Anderson (Anderson I), 197 Ariz. 314, 318-19 ¶ 9, 4 P.3d 369, 373-74 (2000). Potential jurors in a capital case cannot be removed for cause "simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction." Witherspoon, 391 U.S. at 522, 88 S.Ct. 1770. A juror may, however, be removed for cause if his views on the death penalty "would `prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980)); accord Anderson I, 197 Ariz. at 318-19 ¶ 9, 4 P.3d at 373-74.
¶ 15 "[I]n applying this standard, reviewing courts are to accord deference to the trial court," Uttecht v. Brown, ___ U.S. ___, 127 S.Ct. 2218, 2223, 167 L.Ed.2d 1014 (2007), because it "is in a superior position to determine the demeanor and qualifications of a potential juror," id. at 2231. All of the challenged jurors (Jurors 4, 33, 37, 52, 75, and 137) indicated during voir dire that opposition to the death penalty made them unable to follow the law. The trial court did not abuse its discretion in concluding that their views on the death penalty would substantially impair the performance of their duties as jurors.
¶ 16 Velazquez also argues that the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and this Court's decision in State ex rel. Thomas v. Granville (Baldwin), 211 Ariz. 468, 123 P.3d 662 (2005), narrow the grounds on which a potential juror may be excused for cause. These decisions, however, do not modify Witherspoon and Witt or otherwise alter the standards for qualifying jurors in capital cases. Cf. Uttecht, 127 S.Ct. at 2224 ().
¶ 17 Velazquez next contends that his Sixth and Fourteenth Amendment rights to a fair and impartial jury were violated because two "death presumptive" jurors served on the jury. Velazquez did not object at trial but argues that seating these jurors was structural error requiring automatic reversal. Alternatively, Velazquez contends that we should find fundamental error, which affords relief only if he "establish[es] both that fundamental error exists and that the error in his case caused him prejudice." State v. Henderson, 210 Ariz. 561, 567 ¶ 20, 115 P.3d 601, 607 (2005).
¶ 18 A defendant is entitled to "a fair trial by a panel of impartial, indifferent jurors." Morgan v. Illinois, 504 U.S. 719, 727, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992) (internal quotation marks omitted). "A juror who will automatically vote for the death penalty" without considering the presence of mitigating circumstances does not meet this threshold requirement of impartiality. Id. at 729, 112 S.Ct. 2222. Under the due process guarantees of the Sixth and Fourteenth Amendments, "[i]f even one such juror is empaneled and the death sentence is imposed," the sentence must be reversed. Id.
¶ 19 Simply because a juror favors the death penalty does not, however, necessarily preclude the juror from serving on a jury; if the juror is "willing to put aside his opinions and base his decisions solely upon the evidence, he may serve." See State v. Martinez, 196 Ariz. 451, 459 ¶ 28, 999 P.2d 795, 803 (2000) (citation omitted). This can be determined through proper voir dire. Morgan, 504 U.S. at 729, 112 S.Ct. 2222; Martinez, 196 Ariz. at 459 ¶ 28, 999 P.2d at 803.
¶ 20 One of the challenged jurors (Juror 62) clearly stated that he could consider a sentence less than death under certain mitigating circumstances. The other (Juror 139) also stated, in responding to the juror questionnaire, that he would not automatically impose a death sentence. Juror 139 did not alter his answer when the trial court asked the jurors in voir dire if any of them thought a person who intentionally kills another should automatically receive the death penalty....
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