State v Michael Gene Blakley (see Orders CR-00-0360-AP dated and filed 03-27-03 amending Opinion)

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FILED MAR 1 7 2003 SUPREME COURT OF ARIZONA En Eanc ) STATE OF ARIZONA, NOELKDES&6JN1 CLERK SUPREME COURT Arizona Supreme Court No. CR-OO-0360-AP Appellee, ) v. Mohave County Superior Court No. CR-98-838 MICHAEL GENE BLAKLEY, Appellant.) OPINION Appeal from the Superior Court of Mohave County The Honorable Steven F. Conn, Judge REVERSED AND REMANDED IN PART AFFIRMED IN PART Janet A. Napolitano, Arizona Attorney General By: Kent E. Cattani, Chief Counsel, Capital Litigation Section Monica B. Kiapper, Assistant Attorney General Attorneys for Appellee J. Conrad Baran Attorney for Appellant Phoenix Flagstaff Z L A K E T, Justice (Retired) ¶1 Michael Gene Blakley was convicted of one count of first degree murder and two counts of sexual assault. He was sentenced to consecutive death sentences on the without murder conviction and to two life the possibility of parole for thirty-five years on the remaining filed pursuant This court Arizona counts. to An automatic appeal Arizona Rule of Criminal has jurisdiction under Article VI, Constitution and sections 13-4031 and -4033 to this Arizona court Procedure Section Revised was 31.2(b). of the 5(3) Statutes (A.R.S.) (2001) FACTS ¶2 Less The defendant Blakley met Melissa Behunin in April than a week later, he sixteen-month-old daughter, a fast food restaurant, Clearwater Hotel was Shelby. living with Behunin 1998. and her After Blakley lost his job at the couple moved to a room at the Arizona in Bullhead City. a nearby assisted living Behunin started employment facility and the at defendant began taking care of Shelby while her mother was working. Around ¶3 5:00 awakened her mother. a.m. The on July little girl 18, 1998, Shelby s had apparently fallen the sofa sleeper and suffered a bruise over her left eye. left for work that day at approximately 12:45 p.m. crying off Behunin She testified that before she left, Shelby was acting normally. ¶4 At about 4:20 p.m. the defendant called the hotel manager to report that the child was not breathing. be called, He requested that 911 and the manager promptly complied. The 911 dispatcher called the defendant s room and instructed him in CPR. paramedics arrived, Because the severity of her condition, of Shelby was 2 rushed to the a local girl was When the hospital. taken by helicopter to Sunrise Hospital in Las Vegas, after arriving Lipscomb, a there, pediatric she was critical Nevada. pronounced care A few hours dead. physician, Dr. noticed and signs of trauma to the child s vagina and rectum. Diane bruising The medical examiner who later conducted an autopsy testified that Shelby died of anoxic encephalopathy--lack of evidence of head trauma, of the rectum. In his oxygen to a vaginal opinion, abrasion, the genital have been inflicted within the same general injuries. the brain. He and a 3/8 injuries found inch tear appeared to time frame as the head He opined that the child had suffocated, most likely by having her mouth and nose covered. ¶5 On July 21, 1998, Blakley and Behunin voluntarily to the Bullhead City Police Department to be interviewed. went Blakley was questioned by two detectives and two Child Protective Services (CPS) investigators. He was read and waived his Miranda rights. Initially he stated that after Behunin left for work he washed the dishes and gave Shelby a bath. bed. Several minutes later, He then laid down with her on the he got up for a drink with the and noticed that she was not breathing. ¶6 When unaccounted digitally the for police in penetrated his the confronted story, Blakley victim s placed his penis in her rectum. she was fussing, him rectum admitted and three that vagina, hours he had and had He stated that after he did this and when he laid her down to take a nap she was 3 crying. He said that possibly her nose for he placed his five minutes hand over her and she quieted mouth down. and After the interview, the defendant was placed under arrest. TRIAL ISSUES A. Motion for Change of Venue/Mistrial ¶7 Blakley publicity. along In with Many of support, transcripts these killer. moved concerned with Confession and change he attached of articles At a hearing for radio several to such to as Fight based as the with the Her pretrial articles, his case. alleged baby- defendant Judge Of f on newspaper dealing him on the motion, Tried venue stories referred headlines Baby of seemed most Accepts Attacker Blakley Police Interrogation Transcript Revealed. ¶8 some The trial court denied the motion, of the stories inflammatory, a verge fair and finding that although on yellow journalism impartial jury could and were overly likely be found. It ruled that Blakley had not met his burden under Arizona Rule of Criminal Procedure 10.3(b).1 ¶9 On voir dire, the judge questioned each panel member who had seen or heard anything about specific details, 1 the case. Without getting into the court asked every panelist the source of any Whenever the grounds for change of place of trial are based on pretrial publicity, the moving party shall be required to prove that the dissemination of the prejudicial material will probably result in the party being deprived of a fair trial. Ariz. R. Crim. P. 10.3(b). 4 such information and whether he or she could be fair and impartial despite knowing something about the case. ¶10 In total, seventeen prospective jurors were excused because of their admitted inability to be fair and impartial based on pretrial were publicity. excused nature of solely the dismissed. Approximately because charges. One, a could not be fair. of their Two former prospective adverse additional co-worker The other twelve of reaction panel Blakley, jurors to members stated the were that was a CPS worker who had read CPS file a week before trial. he the The judge did not ask any questions concerning information contained in the file. ¶11 venue The trial court denied and motion for mistrial, had heard about the case, that those the case dismissals would a renewed ruling that motion although change some all avowed they could be fair. occasioned by sensitivity have for occurred in any county of jurors He noted to the nature of because of the particular issues involved. ¶12 had The defense asked to individually question each juror who seen request, news failing the attorneys also asked other coverage to see of the case. how additional judge information in making their peremptory challenges. to question prospective members The of the panel about denied as well. 5 denied would this assist The defense jurors who may have spoken to the case. That request was 1. ¶13 Motion for Change of Venue Blakley argues that his motion for change of venue should have been granted. not abuse its The state responds that discretion in denying the motion. ruling for a clear abuse of discretion the defendant. 566, 573 totality State (1992) of v. Salazar, Our task . the defendant s trial is 799, 95 5. ¶14 or 33 and (1992) Ct. 2031, outrageous 648. Ariz. 399, to determine the 406, this 844 whether, to P.2d under the attendant publicity State v. Atwood, (citing Murphy v. 2036 that it to 171 Ariz. Florida, 576, 630, 421 U.S. 794, (1975)) record. (1995) ; permeated atmosphere. In making 1152, 1167, ¶15 We examine Prejudice may be presumed if publicity was so extensive entire 559 did was so pervasive that it caused the proceedings 647 carnival-like at court and resulting prejudice 173 circumstances, to be fundamentally unfair. 832 P.2d 593, the trial this State State v. v. the Atwood, proceedings 171 Ariz. determination Murray, Bible, 175 a Ariz. 9, 549, created at 631, court 184 Ariz. or must 26, 564, 832 P.2d review 906 566, a the P.2d 542, 858 P.2d 1169 (1993) The defense provided the trial newspaper articles from Kingman, Lake Havasu City, concerning the case. as well as judge with approximately Mohave Valley, transcripts of Bullhead City, ten radio clips Although some used inflammatory language, we find no evidence that they significantly affected the proceedings 6 or the atmosphere surrounding the trial. Many appeared at or near the time of the crime the pretrial stages, February 2000. of the articles in July 1998 or during rather than close to the trial which began in Based on the record before us, prejudice cannot be presumed. ¶16 Therefore, prejudice. the defendant has the burden of showing actual Murray, 184 that the demonstrate concerning the Ariz. at jurors defendant s Id. 295, 1272 that 686 [p]rior P.2d 1265, knowledge of and 754 P.2d 1141, 1143 ¶17 he Blakley was not a case, to they We by Chaney, tol 141 Ariz. however, is Befford, . 157 Ariz. individually question fair trial those panelists through voir dire process, State v. Greenawalt, 150, 163, see also Salazar, 406, 844 841 (1981) ; P.2d (court who conducted is an or influence of pretrial publicity on the jurors. 624 P.2d 828, because This court has indicated that effective means by which to determine the effects 573 notions held, itself, he was denied a examination of the jurors, at must [were unable have State v. were exposed to pretrial publicity. [am He preconceived that (1984)). 559. (1988) argues that allowed P.2d at (quoting State v. insufficient to disqualify a juror. 37, 39, 906 formed guilt lay those notions aside. 302, 26, individual 128 Ariz. 173 Ariz. voir dire at of those prospective jurors who had prior knowledge) ¶18 Here, the judge questioned 7 each prospective juror and, although it was in the presence of other panelists, cross-contamination.2 such a manner as to prevent people were nature of pretrial the a around then and of as excused the few the were Only some knowledge article article because charges publicity. indicated short dismissed time of of days time three their stated Almost as many aversion by virtue members of of the trial; of the crime trial. The the to jury Two had third the exposure final pretrial publicity. before he did it in to had seen remembered a an and a few articles between defendant has not demonstrated actual prejudice. ¶19 We permitted jurors. a to 2 concerned, conduct See Ariz. thorough request are of oral any R. however, individual Crim. examination party, the P. voir 18.5(d) of that counsel dire of ( The court prospective court The judge asked the panel: the shall not prospective shall jurors. permit So, were that conduct Upon the party a if you know or think you know or have read or seen or heard anything about this case from any source whatsoever, please raise your hand. Then he asked each juror who had raised a hand: Without telling me what it is that you know, can you tell me the source of your information? Can you tell me when was the most recent time that you heard or read anything about this case? Is there anything about what you either read or heard about this case that caused you to form an opinion concerning the guilt or innocence of the Defendant? . . He followed up by asking if, despite what seen, they could still be fair and impartial. 8 . . . . they had heard or reasonable time prospective to jurors. ). more detailed and unlimited. The reasonable conduct a further Such questioning candid responses. rule goes on Its to say the examination purpose of such helps scope, however, [t]he court jurors, examination. In We believe that Rule 18.5(d) allow the exposure parties some leeway may giving addition Although the due the elicit is not impose regard court may Id. required the trial judge in exploring each failure to have done to panelist s to pretrial publicity and his or her ability and impartial. to the allowed during a terminate or limit voir dire on grounds of abuse. ¶20 of often limitations with respect to questions party~s examination of the prospective to oral to be so was fair error, because we are reversing on other grounds it is unnecessary for us to determine whether circumstances, pretrial receive publicity a fair intelligently 18.5(e). areas he where reversal the issue trial their trial to and judge ensure that peremptory In any event, is required thoroughly that the under the parties challenges. could to ask, R. the could exercise Crim. P. the defendant failed to show what specific of inquiry he would have pursued if permitted, intended explored defendant Ariz. these and the information he hoped the questions to gain with further interrogation. 2. ¶21 The Mistrial Motion defendant argues that 9 a mistrial should have been granted because of the statements of two prospective jurors during voir dire. stating Ms. that indicated M., she that a CPS had he read had worker, the was CPS previously not file more. Both were excused. in worked discussed the case with his co-workers. asked anything after this with case. Mr. Blakley P. and had He was not asked anything The defendant contends that he have been allowed to individually voir dire these two, should as well as other panelists with whom they may have spoken. ¶22 A denial of a mistrial will not be overturned absent an abuse of discretion. P.3d 345, excused 359 State v. (2000) for obvious Jones, Both . of good cause to avoid cross-contamination. 197 Ariz. these 290, 304, prospective and the judge ¶32, jurors 4 were cut off questioning We find no abuse of discretion. B. Voluntariness of the Confession ¶23 On July 21, 1998, Blakley went voluntarily Bullhead City Police Department for questioning. waived his Miranda background-type day of the questions and crime. if presumably the detectives Siebrecht into defendant told the to approximately an hour confessed the crime. and truth counseling. a His half, lawyer 10 began a timeline suggested that with for the leniency said it would be and could get The the He was given and and CPS Investigator Andrews referring to The then moved Detective might be an option, easier warnings. to some interview during which later filed time a help, lasted Blakley motion to suppress the confession. At witnesses: Dr. presented three the ensuing Frumpkin, hearing, Cowardin, Dr. Blakley and Dr. Of she. ¶24 Dr. Frumpkin, although Blakley had a a forensic learning psychologist, disability, capacity to waive his Miranda rights. testified he possessed that the The doctor also stated that the defendant had difficulty processing verbal information and was highly suggestible. Dr. Cowardin, an educational psychologist, testified that the defendant s ability to process information was that of a normal twelve- or thirteen-year-old child. a sociologist practicing in the area of social testified about police interrogations in general, allowed to confessed state or interrogation. his his opinion probable concerning thought Dr. the Of she, psychology, but he was not reasons processes Blakley during the Dr. Of she did not and would not render an opinion as to the truthfulness of the confession. The trial ¶25 court denied the motion to suppress, that it found no direct or implied promises or threats. stating Moreover, the judge held there was no evidence that the defendant had relied on what was said by his interrogators. Blakley disagrees, arguing that his confession was improperly induced. The ¶26 state has the burden of establishing confession was voluntary and freely given. Ariz. 21, 26, 734 P.2d 563, 568 11 (1987) State v. . A that the LaGrand, 153 trial court s determination showing of of voluntariness clear and manifest 597, 607, 708 P.2d 81, 91 ¶27 Under Constitution, implied 1489, 395, 1493 397 (1964); (1986) circumstances will Ariz. of the 131, to Courts surrounding 847 be slight, State v. defendant duration of 2) 603, 886 P.2d 1354, P.2d nor Hogan, Thomas, must the by the a Ariz. look to confession 1078, 1084 and (1992) Miranda 1, direct 7, 225, the States exertion 378 U.S. 148 Ariz. any v. In S. Ct. P.2d of the whether decide . any 714 the Lopez, 174 totality State or of 84 227, this regard, 1) the environment of the were interrogation; and 4) whether questioning. State v. 1359 146 United warnings impermissible police absent Lucas, the has been overborne. whether the v. obtained by judges should consider several factors: interrogation; disturbed State Malloy v. . 137, error. may not however improper influence. be (1985) confessions promises, not Amendment Fifth the will Ross, given; 3) the there was 180 Ariz. 598, (1994) A voluntary confession is one not induced by a direct or implied promise, however slight. A confession resulting from a promise is involuntary if (1) police make an express or implied promise and (2) the defendant relies on the promise in confessing. Advice to tell the truth, unaccompanied by either a threat or promise, does not make a confession involuntary. Id. (citations omitted) ¶28 714 Blakley relies on State v. P.2d Thomas, at defendant 396-97, in which the 12 148 Ariz. was at 226-27, told that by confessing to child molestation, receive probation if Thomas confession involuntary due leniency offered, innocence, at 227, no he he might only serve jail time and attended the 714 P.2d at 397. detectives mention of expressly promises. We also recantation of the deal stated must that not Miranda warnings Blakley they forget Blakley s statements were made. station, if found nature of the of confession. however, not Id. there was confessed, could the court assertions persistent In the present case, a The to the specific defendant s and his immediate specific counseling. and him make atmosphere the any in which He voluntarily came to the police were properly given, and the entire interview lasted a relatively short period of time. ¶29 Mere advice that it would be better to be truthful permissible interrogation tactic. 152, 165, 800 P.2d 1260, 340, 347, 929 1273 P.2d 1288, State v. (1990) 1295 In State v. . (1996) Amaya-Ruiz, , Lacy, a statement is a 166 Ariz. 187 Ariz. by an officer that he could not promise the defendant anything was sufficient to qualify previous suggestions that a deal might be reached. ¶30 The most worrisome part of this Siebrecht s suggestion of Blakley s that the county attorney might be notified uncooperative behavior. wouldn t they slam you to the wall this than we have to? Although interview was Detective Siebrecht asked: if you make us work harder on The Ninth Circuit has stated: it is permissible for an interrogating officer 13 Why to represent, under some circumstances, that the fact that the defendant cooperates will be communicated to the proper authorities, the same cannot be said of a representation that a defendant s failure to cooperate will be communicated to a prosecutor. Refusal to cooperate is every defendant s right under the fifth amendment. Under our adversary system of criminal justice, a defendant may not be made to suffer for his silence. Because there is no legitimate purpose for the statement that failure to cooperate will be reportedand because its only apparent objective is to coerce, we disapprove the making of such representations. United States v. Like the Ninth the context Tingle, Circuit, 658 F.2d 1332, 1336 n.5 we do not approve of the entire interview, of however, (9th Cir. such a 1981) tactic. we cannot In say that the suggestion by Detective Siebrecht justified suppression. ¶31 Although Blakley contends that his young intellectual age and cognitive difficulties characteristics made his are generally not voluntariness unless the police them. State v. 893-95 (1988) Ct. 515 there even question the line, 479 known 750 U.S. about P.2d 157, 883, 107 if we constituted were a to promise find or that S. Detective implied threat, relied on it or confessed Although the interrogator s tactics were close we cannot in holding have 135-37, Connelly, such a determination of should 125, is no evidence that the defendant because of it. wrong Ariz. to overcome, There is no evidence of such knowledge here. Moreover, Siebrecht s 156 easy to relevant knew or (citing Colorado v. (1986)). ¶32 Carrillo, will to say the trial judge was clearly and manifestly that the defendant s 14 statements were voluntary. C. Dr. Of she s Testimony at the Voluntariness Hearing ¶33 At the voluntariness hearing, Of she: Was there defense counsel asked Dr. a particular tactic utilized during the July 2l~, 98 interrogation of Mr. Blakley that was motivated to shift from denial to admission? Dr. Of she ¢ answered yes, and the state objected because the testimony would go to the ultimate fact for decision. The court ruled: I will allow you to elicit from him observations about police tactics but to the extent that you are asking him to express--to express an opinion that these tactics on this specific occasion caused the defendant to react and do something, that s not something I will allow him to testify to so you can rephrase your question if you want. Defense counsel witness commented on questioning. relate what then Later went the in through tactics his the defendant the that testimony, interrogation were Dr. used opinion about the Blakley s Of she attempted to his motivation to had told him about confess. The state objected on hearsay grounds, was sustained. in and and the objection On cross-examination, the state tried to elicit an Blakley s ability to answer questions during the interrogation, and a defense objection was sustained. ¶34 Blakley argues that expert testimony about his will being overborne and the coercive nature of the confession should have been allowed to provide information that is not within the common knowledge of the common juror, hearing, the judge. The or, in the case of the suppression standard 15 of review for evidentiary rulings is abuse of discretion. State v. Rodriguez, 186 Ariz. 240, 250, 921 P.2d 643, 653 (1996) ¶35 Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate Evid. issue 704. to be decided by the Some opinions on trier ultimate of fact. issues, Ariz. however, R. may be rejected if they would not assist the trier of fact to understand the evidence or determine a fact in issue. See Ariz. R. Evid. 704, cmt. ¶36 In State v. Lindsey, a case dealing with expert testimony concerning the credibility of a particular witness, we said: Thus, even where expert testimony on behavioral characteristics that affect credibility or accuracy of observation is allowed, experts should not be allowed to give their opinion of the accuracy, reliability or credibility of a particular witness in the case being tried. Nor should such experts be allowed to give opinions with respect to the accuracy, reliability or truthfulness of witnesses of the type under consideration. Nor should experts be allowed to give similar opinion testimony, such as their belief of guilt or innocence. The law does not permit expert testimony on how the jury should decide the case. 149 Ariz. 472, 475, 720 P.2d 73, 76 ¶37 We fail to see how (1986) the constituted an abuse of discretion. (citations omitted) trial Dr. judge s as coercive tactics. He then went step pointing out what he viewed The witness testified that, 16 here Of she provided general information about police interrogation methods. by step through Blakley s confession, ruling in his opinion, the police made prevented from promises and rendering a confession was voluntary. threatened Blakley. final opinion as He to was only whether the Two other experts supplied insight into the unique mental and psychological make-up of the defendant that might have been instructive and useful to the judge. conclusion offered by Dr. Ofshe was of little or The ultimate no additional value. Whether Arizona ¶38 Rule of Evidence 703 would allow Dr. Of she to testify concerning Blakley s statements to him was not preserved as an issue in the trial court and is therefore waived. State v. Brita, 158 Ariz. 121, 124, 761 P.2d 1025, 1028 (1988) (stating that it is improper for an appellate court to consider an issue for the Blakley s first statements time may on appeal). have been Furthermore, admissible under although a hearsay exception, such as state of mind, that issue has also been waived. Thus, we conclude that exclusion regarding the ultimate issue, of Dr. Ofshe s testimony as well as Blakley s statements to him, was not an abuse of discretion. D. Dr. ¶39 to Trial Testimony Blakley contends that Dr. Of she should have been allowed testify coerced. that Of she s the at trial that the confession was For reasons similar to those set forth trial these opinions. court Dr. did not abuse involuntary above, its discretion find in excluding Of she provided the jury with ample 17 we and evidence concerning the tactics used by the police. He was allowed to testify that portions of the interrogation transcript demonstrated coercive tactics and offers of leniency. ¶40 On cross-examination at trial, th~ state asked Dr. Of she about his questioning inquired: have? of Blakley. For example, the prosecutor Did you ask him about any mental condition he might and Did you ask him about any counseling he had in the past? ¶41 Blakley contends that the state thereby opened the door to testimony concerning his statements to Dr. Ofshe. As the trial court noted, however, the prosecutor merely asked the doctor about the areas and defendant. answers, defense types The so the of state questions did door not had inquire was never never presented the he trial propounded into the really opened. court the time of the crime. E. Moreover, the basis for condition at Thus, the issue was waived. Child Abuse Added as Predicate Felony The ¶42 indictment murder in the first 1105, the defendant s with a legal admitting Blakley s statements about his own mental to 13-1101, Felony. alleged degree 13-604.01, . . that . 13-703, the defendant committed in violation of A.R.S. 13-701 and 13-801, §~ 13- a Class 1 The state announced before voir dire that it would be pursuing only a felony murder theory. prosecutor said the state had to prove 18 In opening statement, the that Blakley committed a sexual assault, and that in the course and in furtherance thereof he killed Shelby. The defense theory was that Shelby s death was not caused by suffocation but rather by blunt force head trauma. Blakley also argued that the child s death was not in the course or furtherance of the sexual assaults. ¶43 Dr. conducted Robert the hemorrhages, Bucklin, autopsy, the testified bleeding of the Nevada that medical examiner Shelby filmy layer had that covers who subarachnoid the brain. He said that such hemorrhages may be present in cases of shaking or rapid head movement, force trauma. by are generally not He also observed hemorrhages posterior scalp caused but which rapid did not reach head movement or seen with blunt on the anterior and the bone and may have something striking the been head. Finally, he testified that her genital injuries were recent. ¶44 Dr. Flores, a pathologist testified that in his opinion, blunt force head trauma. called by the defense, the cause of death was more likely He agreed that the genital injuries occurred recently but he was unable to determine how close to the time of death. ¶45 the end of the directed verdict on the felony state At had assaults failed to prove and the murder. state s murder any The case, tt 19 count, connection court Blakley moved arguing between that the denied the motion, for a the sexual stating the jury could reasonably assume that they were taking place during an event that would be most likely causing this child to be crying and screaming and that it is less likely that she would have been quiet during this incident and then some time later would have started acting this way . ¶46 At arguments, the the instructions. assault and objected, . close of parties all and the the evidence court and prior discussed to proposed The state requested instructions concerning child abuse as predicate felonies. final The jury sexual appellant citing the indictment which did not mention child abuse, and lack of prior notice. The court stated: I am simply not convinced that there is any authority for your suggestion that the State had an obligation to disclose in advance any specific predicate felony that he wants to allege in this case. ¶47 The United States Supreme Court has stated: No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal. Cole v. Arkansas, 333 U.S. 196, 201, 68 5. Ct. 514, 517 (1948) Rule 13.2 of the Arizona Rules of Criminal Procedure states that an indictment or information shall be a plain, concise statement of the facts sufficiently definite to inform the defendant of the offense charged. ¶48 Ariz. R. Crim. P. 13.2. According to the state, this court has consistently held that [tjhere is no requirement that the defendant receive notice 20 of how the State offense. (1988) 347 (citing State v. his responsibility for 158 Ariz. State v. Arnett, 15, 129 Ariz. Tison, 18, the alleged 760 P.2d 1064, 526, 538, 1067 633 P.2d 335, (1981)), overruled on other grounds by State v. Rodriguez, Ariz. 58, West, 176 Ariz. the will prove 64 n.7, 961 432, defendant s P.2d 1006, 443, claim 1012 n.7 862 P.2d 192, that reversal (1998) 203 was 192 In State . (1993), v. we rejected required because the prosecutor misled him into believing that the state would proceed on a premeditated theory as well as on a felony murder theory. The court held that [tihe prosecutor has no independent duty to tell the defendant how the state theories in advance. intends to proceed or to elect (citing Arnett, Id. 158 Ariz. at 18, 760 P.2d at 1067) ¶49 992-93 In State v. (1979), defendant 122 Ariz. Gray, 445, 447-48, we held that due process was not convicted was second 595 P.2d 990, of degree denied where a statutory rape when charged with first degree rape but put on notice of the victim s minority. hearing There that dissented, the she was stating that victim had seventeen testified years different at old. defenses the preliminary Justice are Gordon involved, and a defendant may virtually convict himself of statutory rape if he is surprised by a statutory rape instruction consent defense to a forcible rape charge. at 995 (Gordon, J., dissenting) 21 after Id. presenting at 450, a 595 P.2d ¶50 In State v. defendant s situation surprise lack or from of the Arnett, one time for in court which trial distinguished an accused preparation failure to specify the murder theory. the suffers because of a In that case, felony murder and the predicate felony were mentioned on the first day of trial. The court found that this was adequate notice, giving counsel a reasonable chance to rebut the allegation. defense Arnett, 158 Ariz. at 18, 760 P.2d at 1067. ¶51 State involved lesser-included v. Hutton, 143 Ariz. offenses 386, of 694 first P.2d 216 degree (1985), murder. The defendant claimed error because he believed the state was pursuing a first degree murder charge. a defendant is on notice of lesser-included offenses from altogether indictment. different manslaughter at Id. predicate 390, felony is charge. defend however, of a to the time of allegedly failed against the possibility He 694 P.2d quite Clearly, at 220. distinct An from a lesser- included offense. In State v. Eastlack, 180 Ariz. 243, 883 P.2d 999 (1994) ¶52 the defendant would be used complained as a rejected the argument, of inadequate predicate notice felony. This kidnapping court summarily stating [d]efendant is entitled to notice of the crimes with which he may be convicted, which the state will prove his guilt. 1014. that Id. not the manner in at 258, 883 P.2d at It should also be noted that Eastlack failed to demonstrate 22 prejudice or unfair surprise. We believe the foregoing cases ¶53 that presently under consideration. are distinguishable from Blakley was aware at the time of trial that the state was proceeding on a felony murder theory. However, nothing in the proceedings up to the eve of closir~g arguments gave him notice that the predicate felony would be child abuse. He had been indicted on two counts of sexual assault. The grand jury was never instructed on any predicate felony other than sexual assault. The prosecutor stated in his opening statement at trial murder that the was committed in the course of or in furtherance of the crime of sexual assault. ¶54 Blakley s entire defense rested on the reasonable assumption that sexual assault was the sole predicate felony. At oral argument before us, his counsel pointed specifically to other evidence that would have been elicited at trial had the defense known child abuse would be used as a predicate felony. supports the assertion that a different The record theory of defense would likely have been advanced had child abuse been disclosed earlier in these proceedings. As it is, the defendant was induced to convict himself by arguing that the victim died of head trauma, not the sexual assault. That, of course, played right into the undisclosed child abuse allegation. ¶55 The insertion of a new predicate felony after all the evidence was in and the defense had rested constitutes reversible 23 error. The prejudice caused by such late notice was obvious. defendant was deprived of his constitutional right to a The fair trial. ¶56 Moreover, the state has failed to show how or why it would be unduly burdensome to require disclosure felony early in the proceedings. of a predicate In order to avoid injustice and to ensure that proper notice has been given in a felony murder case, we believe the state should include the predicate felony in the original or an amended indictment. ¶57 In Sheppard v. Rees, 909 F.2d 1234 defendant was charged with one count of a firearm. opening statements, felony murder, rested, were At no time during the pretrial proceedings, or trial for the next were settled. day. The any mention of After both sides Closing following arguments morning, the requested a felony murder instruction with robbery as Id. on the statement. testimony was there instructions the predicate felony. felony the of murder involving the use either explicitly or impliedly. jury scheduled prosecutor 1989), The prosecutor proceeded at trial on a theory of premeditated murder. had (9th Cir. murder and Id. at 1236. at 1235. The judge instructed the jury prosecutor argued it in his closing The appellate court later stated: The constitutional error in the instant case was of [I a fundamental nature. Here, the prosecutor ambushed the defense with a new theory of culpability after the evidence was already in, after both sides had rested, and after the jury instructions were settled. . . 24 . This new theory then appeared in the form of unexpected jury instructions permitting the jury to convict on a theory that was neither subject to adversarial testing, nor defined in advance of the proceeding. at Id. 1237. The court held that the right to counsel was implicat~ed because the lack of notice denied the defendant a right to respond to charges against which he or she must defend. We ¶58 Circuit: agree We with cannot the following regard as observation fair a trial of in the Id. Ninth which the defendant s right to defend was impaired by a lack of notice as to the nature and circumstances, necessarily trial. cause lack denies of of the constitutionally a defendant Id. at 1238. accusation. the Under these required fundamental right to notice a fair We therefore reverse the capital conviction and sentence. F. Motion to Dismiss for Timeliness ¶59 for On January a violation of 19, 2000, Arizona Blakley Rules of filed a motion Criminal to dismiss Procedure, Rule 8.2(b) setting forth time constraints as to when a defendant shall be brought t trial. Rule 8.2(b) states: Every person held in custody in this state on a criminal charge shall be tried by the court having jurisdiction of the offense within 120 days from the date of the person s initial appearance or within 90 days from the date of the person s arraignment before the trial court, whichever is the lesser. . A hearing was held on February . 1. . The court calculated elapsed time as only 63 days from arraignment until 25 the the February 8 trial date and denied the motion. ¶60 21, The defendant argues that the time periods between July 1998 and September 21, 1998, December 6, 1999, and between September 1, 1999 and were not excludable under Rule 8.4. contends that Blakley should have filed a special and, therefore, ¶61 The state action earlier that this court should not reach the merits. In Stone v. Wren, 22 Ariz. App. 165, 525 P.2d 296 (1974) a special action petition was brought to review denial of a motion to dismiss for violation of the right to a speedy trial. in that case, however, requires that such an issue be brought on a special action petition rather than on direct appeal. v. 169 Ariz. Schaaf, 323, 327-28, direct appeal of a capital case, Nothing 819 P.2d 909, 913-14 In State (1991) , a this court properly analyzed the defendant s claimed violations of Rule 8. Blakley was arraigned on August 10, ¶62 trial date was September 21, September 1998 21, 1998. This through September 20, 1998, is and his first includable 1999 was time. time excluded because of defendant s motions to continue and pretrial motions. On September 20, 1999, a firm trial date. in December. December 7, trial a status conference was held to determine Defense counsel requested and obtained a date Therefore, time 1999 was excludable. for twenty-one days includable. the from September 20, 1999 to The state then moved to continue from December 7, 1999. That time was However, because the defense said it could not secure 26 witnesses, trial with the trial 63 days. was continued until February 8, 2000. We agree court that the total time for Rule 8 purposes was Therefore, Rule 8 was not violated and the motion to dismiss was properly denied. G. Third-Party Culpability Evidence Excluded ¶63 A defendant may present evidence that committed the crime for which he is charged. 191 Ariz. in 359, 369 ¶38, to limine Blakley, the exclude State v. 956 P.2d 486, 496 (1998) the following defendant s cousin: when third party Tankersley, The state moved . evidence 1) a relating Fred was to Fred thirteen to fifteen years old, he repeatedly molested Ken. Williams, his six- or female seven-year-old cousin, delinquent in juvenile court; 2) and yelled at her; 3) for which he was adjudicated Fred had telephoned Ken Fred had a fight with Ken s Fred had a history of cruelty to animals; 5) after in 1999 brother; 4) a newspaper article indicated that a cousin of the defendant may have caused Shelby s death, Ken had been molested father; began receiving hang-up phone calls; as a young boy; 7) Fred was 8) Fred s father died of AIDS; and 9) beaten 6) by Fred his Fred had engaged in self-mutilation. ¶64 At Blakley did not file a written response to this motion. argument referred to inadmissible. in the in trial numbers court, 3 and he 8 conceded above that was the evidence irrelevant and The judge determined that there was no reasonable 27 basis to infer that Frederick Blakley had a character trait giving rise to an aberrant sexual propensity to commit the crime charged against Shelby. See Aniz. R. Evid. 404(c) (1) (B). find that the evidence was excludable. The state ¶65 1) the court that See Aniz. keep out 403. relating to evidence pertaining his history of aberrant to Fred sexual even if all evidence had the ruling would have been proper under State v. 161 Aniz. 237, 778 P.2d 602 (1988) Fulminante, ¶66 Evid. all behavior and cruelty to animals; and 2) been excluded, R. contends that the ruling was correct because did not Blakley-only He went on to Blakley argues that the evidence in question was admissible under Rule 404(c), which states: In a criminal case in which a defendant is changed with having committed a sexual offense, evidence of other crimes, wrongs, on acts may be admitted by the court if relevant to show that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the offense charged. . . . Aniz. R. Evid. 404(c). ¶67 other Without than a excluded. 1001 defendant, Recently, (2002), standard whether we Rule find that in State v. 404(c) the Gibson, we clarified the appropriate in determining That deciding applies to evidence was 202 Aniz. 321, someone properly 44 P.3d standard to be applied admissibility of third-panty culpability evidence. is as set forth in Arizona 402, and 403. 28 Rules of Evidence 401, ¶68 exclusion of the evidence concerning Fred Blakley Here, was not an abuse of discretion. Blakley never attempted to show that Fred was present at the crime scene on the day of the murder.3 The molestation committed by Fred was not assault committed upon Shelby, calls between Fred and his similar to the sexual and we fail to see how telephon~ previous victim around the time of Blakley s arrest were relevant. DISPOSI TION ¶69 Finding error as described in this opinion, we Blakley s first degree murder conviction and sentence. is remanded to the with this opinion. trial count for proceedings We affirm Blakley s not reverse The matter inconsistent sexual assault convictions and sentences. THOMAS A. ZLAKET, Justice (Retired) CONCURRING: CHARLES E. JONES, Chief Justice RUTH V. McGREGOR, Vice Chief Justice STANLEY G. FELDMAN, Justice (Retired) REBECCA WHITE BERCH, Justice Blakley asserts that there was evidence Fred was planning to come to the motel room on the day Shelby died. However, the record does not support this assertion. 29

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