Opinion
No. 1 CA-CR 15-0147
05-24-2016
STATE OF ARIZONA, Appellee, v. JOSE JUAN HERNANDEZ, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By W. Scott Simon Counsel for Appellee Ballecer & Segal, LLP, Phoenix By Natalee Segal Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2012-125141-001
The Honorable Michael W. Kemp, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By W. Scott Simon
Counsel for Appellee Ballecer & Segal, LLP, Phoenix
By Natalee Segal
Counsel for Appellant
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which Presiding Judge Kent E. Cattani and Judge Samuel A. Thumma joined. HOWE, Judge:
¶1 Jose Juan Hernandez appeals his convictions and sentences for first-degree murder and numerous related offenses, alleging that the trial court denied him due process. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Late one evening in May 2012, Hernandez and his co-defendant, B.L., kicked in C.R.'s Tempe apartment door, intending to rob him. Once inside the apartment, fighting ensued, which ended when Hernandez pistol-whipped C.R. and shot him in the back of his head, killing him. Hernandez left C.R.'s apartment complex by car, but abandoned the car after crashing it on a front lawn. Unable to use the crashed car, Hernandez invaded a nearby home and demanded at gunpoint that the homeowner give him the homeowner's car keys. But Hernandez fled on foot as a police patrol car approached. Hernandez invaded another home, forcing the homeowner at gunpoint to "driv[e] him somewhere." After the homeowner refused, Hernandez took the keys and drove off, but abandoned the car after crashing it into a block wall. Hernandez invaded a third home by shooting through a glass door, but fled by the time police arrived.
¶3 A Tempe police officer patrolling the area where Hernandez had crashed the first stolen car subsequently saw Hernandez emerge from some bushes. The officer got Hernandez to drop his gun and took Hernandez into custody. The officer found $1,232 cash in Hernandez's pocket. Hernandez had methamphetamine, opiates, and alcohol in his system after his arrest. The State charged Hernandez with one count of first-degree murder, four counts of first-degree burglary, three counts of armed robbery, one count of unlawful flight from a law enforcement vehicle, two counts of aggravated assault, two counts of kidnapping, one count of theft of means of transportation, and one count of misconduct involving weapons. The State later dismissed the unlawful flight charge.
¶4 Multiple times before Hernandez's jury trial began, defense counsel requested the trial court to order competency evaluations for Hernandez pursuant to Arizona Rule of Criminal Procedure 11.2. To support the requests, defense counsel cited Hernandez's mental health history, an inability to conduct a rational discussion with Hernandez due to "bizarre behavior," and his desire to proceed pro per. But upon the recommendations of the mental examination experts, the trial court found Hernandez competent to stand trial three times. Acting upon his desire to proceed pro per, Hernandez then moved to dismiss his counsel and represent himself. The trial court ultimately granted Hernandez's request, finding that he had knowingly and voluntarily waived his right to counsel, and appointed an advisory counsel.
¶5 In October 2014, one month before his trial began, Hernandez moved for the appointment of a blood specialist to conduct "independent testing, examination, analysis, observation, rebuttal, the assurance of proper procedures, and protocol, and testimony." At the subsequent hearing, held the day before trial began, Hernandez informed the trial court that he intended his motion to request a blood splatter expert, a DNA expert, and a serologist for the purposes designated in the motion. Hernandez stated that these experts were necessary to "answer many questions of things I would like to know," such as how much blood he lost the night he committed the crimes and the effects of that blood loss to show that he was unaware of the crimes, that Tempe police stabbed him, and that Tempe police "planted" 29 droplets of his blood inside one of the homes he invaded. Advisory counsel also argued that the State had only recently disclosed DNA evidence, creating the need for independent expert examination. But the trial court denied the motion, concluding that Hernandez's request was untimely. The trial court stated that even if Hernandez timely made the request, the motion did not have sufficient substance to warrant the appointment of experts because Hernandez's arguments were "pure speculation" and only potentially exculpatory. Because the trial court denied his motion, Hernandez informed the court that he no longer wanted to represent himself and requested that the trial court appoint counsel. The trial court granted the request.
¶6 During trial, the prosecutor used a paper easel pad to record relevant parts of the witnesses' testimonies about certain pieces of evidence and to record relevant parts of admitted DNA report exhibits. The prosecutor subsequently moved to have the easel's pages with the prosecutor's writing admitted into evidence. Hernandez's co-defendant, B.L., objected to the motion, arguing that the writing on the easel constituted testimony by the prosecutor, not the witnesses. But the trial court overruled the objection and admitted the pages as "a kind of summary exhibit." B.L. later renewed his objection. Hernandez did not join either objection.
¶7 Hernandez testified that he entered C.R.'s apartment only upon hearing screams from inside but did not shoot C.R. He further testified that because he was injured in the fight that ensued, all of his actions afterward were designed simply to seek help. Hernandez also stated that once in handcuffs, the police stabbed him in an attempt to kill him, and that he later stopped his heartbeat so that the police would think he was dead and stop attacking him. Calling Hernandez's testimony "delusional" and noting that Hernandez also made statements in violation of a pretrial ruling about his co-defendant, defense counsel moved for another Rule 11 evaluation to determine Hernandez's competency. The trial court denied the motion, concluding that Hernandez was competent based on his engagement throughout trial and on the multiple prior findings of competency. The court specifically found that Hernandez "has the ability to consult with his attorney within a reasonable degree of rational understanding and . . . he has a rational and factual understanding of the proceedings against him." The court further noted that Hernandez was "intoxicated or high on drugs" at the time of the offense, possibly explaining his unusual testimony.
¶8 The jury convicted Hernandez of first-degree murder, theft of means of transportation, misconduct involving weapons, four counts of first-degree burglary, and two counts each of aggravated assault, kidnapping, and armed robbery. The court sentenced Hernandez to natural life for the murder conviction and lesser terms on the 12 remaining convictions. Hernandez timely appealed.
DISCUSSION
1. Denial of Motion for Blood Experts
¶9 Hernandez argues that the trial court abused its discretion and deprived him of due process by refusing to appoint county-funded blood splatter, DNA, and serology experts to assist in his defense and by failing to continue the trial sua sponte to allow him to retain the experts. The appointment of experts is within the sound discretion of the trial court, and "absent substantial prejudice, we will not disturb the trial court's refusal to appoint experts." State v. Gonzales, 181 Ariz. 502, 511, 892 P.2d 838, 847 (1995). Arizona Rule of Criminal Procedure 15.9(a) mandates the appointment of an expert witness only when "such assistance is reasonably necessary to present a defense adequately at trial or sentencing." Due process similarly requires the appointment of experts when such testimony is reasonably necessary to present an adequate defense. Jacobson v. Anderson, 203 Ariz. 543, 545 ¶ 5, 57 P.3d 733, 735 (App. 2002). "Defense" includes "any set of identifiable conditions or circumstances which may prevent a conviction for an offense." Jones v. Sterling, 210 Ariz. 308, 313 ¶ 23, 110 P.3d 1271, 1276 (2005). Because Hernandez did not show that appointing the requested experts was reasonably necessary to present an adequate defense and his request was untimely, the trial court did not err in denying Hernandez's request or in failing to continue trial.
¶10 First, the trial court did not err in finding that Hernandez failed to demonstrate that the appointment of these experts was reasonably necessary to present an adequate defense. Hernandez's motion for a blood expert stated only generally that the expert was necessary for "independent testing, examination, analysis, observation, rebuttal, the assurance of proper procedures, and protocol, and testimony." On its face, this request insufficiently demonstrated that such an expert was reasonably necessary to present an adequate defense. Nothing in Hernandez's motion identified what conditions or circumstances expert testimony would provide to prevent a conviction for the offenses charged.
¶11 Hernandez's clarification the day before trial was similarly deficient. He offered only that the experts were necessary to "answer many questions of things [he] would like to know," and to prove that he did not know that he committed the offenses, that Tempe police stabbed him, and that police planted his blood at the crime scenes. Hernandez's unsubstantiated, generalized assertions failed to meet his burden of showing that the experts were reasonably necessary to present his defense. See State v. Apelt, 176 Ariz. 369, 375, 861 P.2d 654, 660 (1993) (providing that undeveloped assertions that the requested assistance would be beneficial are alone insufficient); see also Ake v. Oklahoma, 470 U.S. 68, 77 (1985) (providing that no absolute right to appointment of expert witnesses exists absent showing one is necessary to adequately present a defense).
¶12 Second, the court did not err in failing to continue trial to allow Hernandez time to retain the experts. Hernandez's request was untimely. Hernandez filed his request on the eve of trial—more than two years after the indictment. Hernandez could have requested the experts during that two-year period in preparation of his defense. See Ariz. R. Crim. P. 8.5(b) ("A continuance of any trial date shall be granted only upon a showing that extraordinary circumstances exist and that delay is indispensable to the interests of justice."); State v. Sullivan, 130 Ariz. 213, 216, 635 P.2d 501, 504 (1981) (reasoning that in analogous circumstances, the court has upheld denials of continuances "where the facts indicate that the defendant failed to exercise due diligence in obtaining the witness' presence."); State v. Cramer, 174 Ariz. 522, 525, 851 P.2d 147, 150 (App. 1992) (holding that the court did not abuse its discretion in denying a motion to continue because defendant had already had five months in which to prepare a defense). Accordingly, the court did not err in denying Hernandez's motion or in not continuing the trial sua sponte to allow Hernandez time to retain the experts.
2. Admission of the Easel's Pages
¶13 Hernandez next argues that the trial court erred in admitting into evidence the easel's pages containing the prosecutor's writing. Because Hernandez failed to object to the exhibit's admission at trial, we review his claim for fundamental error only. See State v. Henderson, 210 Ariz. 561, 567 ¶ 19, 115 P.3d 601, 607 (2005). To establish fundamental error, Hernandez bears the burden of demonstrating that the trial court committed an error, that the error was fundamental, and that the error caused him prejudice. See id. at ¶ 20. Hernandez has not demonstrated that the trial court committed an error by admitting the easel's pages and has therefore failed to meet his burden.
¶14 In Arizona, a trial court has both discretion and an affirmative duty to "exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to . . . make those procedures effective for determining the truth." Ariz. R. Evid. 611(a); Pool v. Superior Ct. In & For Pima Cty., 139 Ariz. 98, 104, 677 P.2d 261, 267 (1984). Further, the decision whether to admit or exclude relevant evidence is left to the sound discretion of the trial court. State v. Murray, 162 Ariz. 211, 214, 782 P.2d 329, 332 (App. 1989). Demonstrative evidence is relevant if it illustrates or explains testimony and the trial court may admit it if its probative value outweighs danger of unfair prejudice. State v. King, 226 Ariz. 253, 256 ¶ 7, 245 P.3d 938, 941 (App. 2011).
¶15 Here, the trial court did not err in admitting the exhibit because the court was merely exercising its discretion under Rule 611(a) to allow the prosecutor to use a particular mode of examining the witnesses and presenting evidence. The prosecutor used the easel to keep track of the witnesses' testimonies by recording the relevant parts about individual pieces of evidence. Indeed, the writing on the easel only re-stated the witnesses' testimonies and the DNA evidence already admitted. The easel's pages were merely illustrations matching the pieces of evidence to the corresponding testimony, and they carried no danger of unfair prejudice. Accordingly, the trial court did not err in admitting the easel's pages into evidence.
3. Denial of Motion for Competency Evaluation
¶16 Hernandez argues finally that the trial court abused its discretion in denying his motion for a competency evaluation during trial. We review the denial of a motion for a competency evaluation for an abuse of discretion. State v. Amaya-Ruiz, 166 Ariz. 152, 162, 800 P.2d 1260, 1270 (1990). "A person shall not be tried, convicted, sentenced or punished for a public offense . . . while, as a result of a mental illness, defect, or disability, the person is unable to understand the proceedings against him or her or to assist in his or her own defense." Ariz. R. Crim. P. 11.1. A competency hearing is required if the trial court determines that reasonable grounds for examination exists. Ariz. R. Crim. P. 11.3(a). In making its determination, the trial court may consider its own observations of the defendant's demeanor and previous adjudications of competency. State v. Moody, 208 Ariz. 424, 443 ¶ 48, 94 P.3d 1119, 1138 (2004). Because the trial court did not err in finding that no reasonable grounds for examination existed, the trial court did not abuse its discretion.
¶17 In denying the motion, the trial court appropriately relied on its own observations that Hernandez was engaged throughout the entire trial. Specifically, the trial court noted that Hernandez maintained the ability to consult with his attorney with a rational degree of understanding and knew the charges against him. The court also acknowledged that Hernandez was high on drugs at the time of the offense, possibly explaining his "delusional" testimony. Additionally, the court appropriately relied on the fact that Hernandez had previously been found competent three times throughout his case. Defense counsel did not offer any new information showing that Hernandez's mental status had changed since his most recent competency adjudication. Thus, the court did not abuse its discretion in denying the motion for a competency evaluation.
CONCLUSION
¶18 For the foregoing reasons, we affirm.