State v. Doody ( 2015 )


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  •                      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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
    IN THE
    ARIZONA COURT OF APPEALS
    DIVISION ONE
    STATE OF ARIZONA, Appellee,
    v.
    JOHNATHAN ANDREW DOODY, Appellant.
    No. 1 CA-CR 14-0218
    FILED 11-10-2015
    Appeal from the Superior Court in Maricopa County
    No. CR 1992-001232
    The Honorable Joseph Kreamer, Judge
    AFFIRMED
    COUNSEL
    Arizona Attorney General’s Office, Phoenix
    By Joseph T. Maziarz
    Counsel for Appellee
    The Hopkins Law Office, PC, Tucson
    By Cedric Martin Hopkins
    Counsel for Appellant
    STATE v. DOODY
    Decision of the Court
    MEMORANDUM DECISION
    Acting Presiding Judge Jon W. Thompson delivered the decision of the
    Court, in which Judge Lawrence F. Winthrop and Judge Peter B. Swann
    joined.
    T H O M P S O N, Judge:
    ¶1             Johnathan Andrew Doody murdered nine people inside a
    Buddhist temple in 1991. A jury found Doody guilty of nine counts of first
    degree murder, nine counts of armed robbery and one count each of first
    degree burglary and conspiracy to commit armed robbery and/or first
    degree burglary. The trial court sentenced Doody to nine consecutive terms
    of life imprisonment with a possibility of parole after twenty-five years for
    the murder counts and a consecutive, aggregate term of twelve years’
    imprisonment for the remaining counts.1
    ¶2            Doody does not challenge the sufficiency of the evidence to
    support his convictions. He contends, however, that the trial court erred
    when it denied Doody’s motion in limine to admit evidence of a subsequent
    murder and when it failed to consider mitigating circumstances for
    sentencing purposes. For the reasons that follow, we affirm Doody’s
    convictions and sentences. We have jurisdiction pursuant to Arizona
    Constitution, Article 6, Section 9, and Arizona Revised Statutes (A.R.S.)
    sections 12-120.21(A) (2003), 13-4031 (2010) and 13-4033 (2010).
    I.     Doody’s Motion in Limine
    ¶3           Doody first argues the trial court erred when it denied his
    motion in limine to admit evidence of the details of a tenth murder that
    occurred approximately nine weeks after the “temple murders.” We
    1       This was Doody’s third trial in this matter. The United States Court
    of Appeals for the Ninth Circuit reversed Doody’s original 1993 convictions
    after it found interrogators did not adequately inform Doody of his rights
    under Miranda v. Arizona, 
    384 U.S. 436
    (1966), and because the methods of
    interrogation rendered his confession to the murders involuntary. Doody v.
    Ryan, 
    649 F.3d 986
    , 1023 (9th Cir. 2011). A second trial in 2013 resulted in a
    mistrial.
    2
    STATE v. DOODY
    Decision of the Court
    review a trial court’s evidentiary rulings for abuse of discretion. State v.
    Amaya-Ruiz, 
    166 Ariz. 152
    , 167, 
    800 P.2d 1260
    , 1275 (1990).
    A.     Background
    ¶4              We first clarify the record to put the issue and Doody’s
    arguments in context. A second person, “Garcia,” participated in the
    temple murders. In exchange for the state’s agreement not to seek the death
    penalty, Garcia pled guilty to nine counts of first degree murder and agreed
    to testify truthfully in any proceedings against Doody. The court sentenced
    Garcia to nine consecutive terms of life imprisonment with a possibility of
    parole after twenty-five years. Garcia ultimately testified at trial that
    Doody shot each of the murder victims individually with a rifle as they lay
    on the floor and Garcia fired into the group of victims four times with a
    shotgun.
    ¶5             Doody filed a pretrial motion in limine to admit evidence of
    the details of a tenth murder Garcia participated in as an accomplice. Nine
    weeks after the temple murders, the sixteen-year-old Garcia and his
    fourteen-year-old girlfriend ran away together. They encountered the tenth
    victim at a campsite and borrowed matches from her. Garcia planned to
    rob the tenth victim shortly thereafter and repeatedly told his girlfriend
    there should be “no witnesses” once they did so. Garcia pressured his
    girlfriend to kill the tenth victim, and told her, “If you love me, you'll do
    this.” The girlfriend shot the tenth victim twice in the back with a nine
    millimeter handgun, after which they took the victim’s money and ATM
    card. The girlfriend admitted she shot the victim but claimed Garcia
    controlled everything, that it was all his plan and that he manipulated her.
    Garcia revealed the tenth murder to investigators as part of his plea
    agreement in the instant case. Garcia pled guilty to that murder as well and
    received a tenth, consecutive sentence of life imprisonment with a
    possibility of parole after twenty-five years.
    ¶6             Doody alleged in his motion in limine that there were
    similarities between the temple murders and the tenth murder. Relying on
    Arizona Rule of Evidence 404(b) (Rule 404(b)), Doody asserted these
    alleged similarities were relevant to Garcia’s motive and intent and would
    impeach Garcia’s trial testimony by showing Garcia’s “common scheme or
    plan” to minimize his involvement in any murder he participated in,
    attribute the actual murder to another person and portray himself as simply
    a follower. At the hearing on the motion, Doody argued further that the
    evidence was relevant to show Garcia was a “serial killer” who “cuts deals
    with the state, implicates others in exchange for favorable outcome for
    3
    STATE v. DOODY
    Decision of the Court
    himself, . . . minimizes his involvement in the crimes as he did in both the
    [tenth murder] and the temple murders and he manipulates people.” He
    also argued the evidence showed Garcia has a “character trait for, basically,
    implicating other people; cutting deals; minimizing his involvement.”
    Finally, Doody argued the evidence that Garcia used the phrase “no
    witnesses” in the tenth murder was most important because he would
    testify it was Doody who used that phrase during the temple murders.
    ¶7             The trial court denied the motion in limine in part and granted
    it in part. The court held it would allow some evidence of the tenth murder.
    The court held Doody could introduce evidence that Garcia participated in
    the tenth murder, “cut deals” with law enforcement, entered into plea
    agreements, implicated other people and minimized his involvement in all
    ten murders. The court would not, however, allow Doody to introduce
    evidence of the details of the tenth murder. The court held Rule 404(b) was
    not designed to permit a party to “dredge up every bad thing [a] person has
    done.” The court found Doody’s attempt to admit the details of the tenth
    murder was “simply an argument that, boy, Garcia is a bad guy; he’s a bad
    guy, don’t listen to him.” The court also held it was “running into a big
    [Arizona Rule of Evidence] 403 wall” with the details of the tenth murder.
    Regarding Garcia’s use of the phrase “no witnesses,” the court held Doody
    could introduce evidence Garcia personally used the phrase after the
    temple murders, but not in the context of the details of the tenth murder.
    The court noted that this court addressed this final limitation on direct
    appeal in 1996 and found no reversible error.
    ¶8             Pursuant to the court’s ruling, the jury heard evidence Garcia
    and his girlfriend committed the tenth murder nine weeks after the temple
    murders and that they both pled guilty and received prison sentences,
    including a life sentence for Garcia. The jury learned the murder also
    involved armed robbery. The jury learned the names of the victim and
    Garcia’s girlfriend, Garcia’s and his girlfriend’s ages and the date and
    location of the murder. The jury also heard evidence that Garcia pled guilty
    to the tenth murder as part of the plea agreement in the temple murders
    and that he did so to avoid the death penalty in both the temple and tenth
    murders. Finally, the jury heard Garcia agree that he had benefited
    “greatly” from his plea bargains with the state. Despite the trial court’s
    ruling, Doody never asked Garcia if he used the phrase “no witnesses” after
    the temple murders. Even so, the jury heard Garcia use the phrase during
    his testimony about the temple murders without attributing it to Doody
    and, therefore, knew the phrase and its use were not unique to Doody.
    4
    STATE v. DOODY
    Decision of the Court
    B.     Discussion
    ¶9            On appeal, Doody continues to argue the details of the tenth
    murder were admissible pursuant to Rule 404(b) as evidence of the
    common scheme or plan allegedly evidenced in the facts of the temple and
    tenth murders. Doody argues the common scheme or plan was for Garcia
    to plan to kill people to steal their money, manipulate someone else into
    doing the killing and then, if caught, make a favorable deal with the state,
    minimize his involvement and deflect the blame for any murder to the other
    person.2
    ¶10            The trial court did not abuse its discretion when it limited the
    evidence of the details of the tenth murder. First, combined with all of the
    evidence regarding Garcia’s involvement in the temple murders and the
    details of the resulting plea agreement, the jury heard more than sufficient
    evidence about the tenth murder and Garcia’s subsequent “deal” with the
    state to support Doody’s position that Garcia was simply a ten-time
    murderer trying to keep his plea agreements intact by saying what the state
    wanted to hear and blaming Doody. It was well within the trial court’s
    discretion to find that additional details such as how Garcia manipulated
    his girlfriend into shooting the victim and why they did so were of no
    additional probative value. Second, a trial court “has considerable
    discretion in determining whether the probative value of the evidence is
    substantially outweighed by its unfairly prejudicial effect.” State v. Gilfillan,
    
    196 Ariz. 396
    , 405, ¶ 29, 
    998 P.2d 1069
    , 1078 (App. 2000). The court did not
    abuse its discretion when it held the probative value, if any, of the details
    of an unrelated murder that occurred more than two months later was
    outweighed by the considerations identified in Arizona Rule of Evidence
    403.
    ¶11           Third, to admit another act as evidence of a common scheme
    or plan pursuant to Rule 404(b), the other act must be “part of ‘a particular
    plan of which the charged crime is a part.’” State v. Ives, 
    187 Ariz. 102
    , 106,
    
    927 P.2d 762
    , 766 (1996) (quoting State v. Ramirez Enriquez, 
    153 Ariz. 431
    ,
    433, 
    737 P.2d 407
    , 409 (App. 1987)). It is not enough that other acts “’show
    similarities where one would expect differences’ or demonstrate a ‘visual
    connection’ to the other charged offenses.” 
    Ives, 187 Ariz. at 108
    , 927 P.2d
    at 768. Nor is mere similarity sufficient to prove conduct was part of a
    common scheme or plan. State v. Hughes, 
    189 Ariz. 62
    , 69, 
    938 P.2d 457
    , 464
    2     Doody’s defense at trial was that he was not at the temple the day of
    the murders, was in no way involved in the murders and he was simply a
    “dupe” for Garcia.
    5
    STATE v. DOODY
    Decision of the Court
    (1997). “The common scheme or plan exception requires something more
    than mere criminal tendencies.” 
    Id. The evidence
    must be of a
    “commitment to a particular plan of which the charged crime is a part. It is
    a matter of the particularity of the plan and thus of the probative force of
    the connection between one crime and another.” Ramirez 
    Enriquez, 153 Ariz. at 433
    , 737 P.2d at 409. “The distinction is between proving a specific plan
    embracing the charged crime and proving a general commitment to
    criminality which might well have involved the charged crime.” 
    Id. (quoting Morris
    K. Udall & Joseph M. Livermore, Arizona Practice: Law of
    Evidence § 84, 184 n.17 (2d ed. 1982)).
    ¶12           Here, there is no common scheme or plan and there was
    otherwise no probative connection between the details of the temple
    murders and the tenth murder. While the tenth murder further established
    that Garcia had criminal tendencies and/or a general commitment to
    criminality that might involve murder and/or robbery, the tenth murder
    was not evidence of a “commitment to a particular plan of which the
    [temple murders and/or the tenth murder were] a part.” It was not enough
    that both events involved robberies in which Garcia and/or his accomplice
    shot a victim and took the victim’s money. The temple murders were a
    mass murder. Garcia and Doody planned the temple crimes over a period
    of months. They gathered information regarding the layout of the temple,
    possible security systems, whether doors would be locked, the presence
    and location of gold, money and other valuables they believed might be
    inside as well as who would be present. They drew a diagram of the
    temple. They obtained weapons. They wore clothing and equipment that
    concealed their identities and made them appear to be law enforcement
    officers. They planned who would go in first and continued the law
    enforcement ruse to control the occupants once inside the temple. The tenth
    murder was a crime of opportunity committed on the spur of the moment
    by two teenage runaways who blundered into an unfortunate victim’s
    campsite.
    ¶13           There was also no common scheme or plan because Garcia
    never minimized his involvement in the tenth murder and did not
    unjustifiably deflect blame to his girlfriend. He did not need to because his
    girlfriend admitted she shot and killed the victim and Garcia’s statements
    regarding the tenth murder matched the results of the investigation of that
    murder “to a T.” Finally, Garcia’s post-arrest actions to obtain a plea deal
    and/or make any deal more beneficial are in no way part of a “common
    scheme or plan” as contemplated by Rule 404(b). Such actions do not
    demonstrate “commitment to a particular plan of which the charged crime
    is a part.” Were we to hold otherwise, a defendant’s attempts to minimize
    6
    STATE v. DOODY
    Decision of the Court
    involvement and/or deflect blame during a criminal investigation or plea
    negotiations could be considered part of a common scheme or plan. Rule
    404(b) and the case law that addresses the rule do not contemplate such
    absurd results.
    ¶14           Finally, in regard to the limitation of evidence regarding
    Garcia’s use of the phrase “no witnesses” after the temple murders, this
    court addressed this same issue in Garcia’s first appeal in 1996 and found
    that limitation was well within the trial court’s discretion. State v. Doody,
    
    187 Ariz. 363
    , 375, 
    930 P.2d 440
    , 452 (App. 1996). It remains so.3
    II.    Sentencing
    ¶15           Doody committed the offenses when he was seventeen years
    old. The trial court found Doody’s age was a mitigating circumstance for
    sentencing purposes. The court found the presence of an accomplice was
    the sole aggravating circumstance. Before it imposed sentence, the court
    stated:
    This crime involved the murder of nine people, the murder of
    nine people that would seem to be the farthest away from any
    one of us in terms of becoming murder victims. These people
    were peace loving. These people did not seek violence. They
    were not involved with any violence, and just the fact that
    these nine people were murdered is difficult enough to
    understand, but the people who committed these crimes, this
    offense, in some ways is even harder to understand.
    In regard to the aggregate length of the sentences, the court further stated:
    I don’t take lightly a sentence that does not allow someone to
    be released from prison. I obviously understand the impact
    of that sentence, but from my perspective, there can be no
    other sentence in this case other than a sentence that does not
    allow you to be released from prison.
    The court then imposed the sentences identified above.
    3     This court also addressed the exclusion of the other details of the
    tenth murder in the first trial and found no error. That resolution is not
    dispositive, however, because we addressed a different theory of
    admissibility than the theory Doody relied upon in the third trial. 
    Doody, 187 Ariz. at 374
    , 930 P.2d at 451.
    7
    STATE v. DOODY
    Decision of the Court
    ¶16            Doody contends his aggregate sentences, particularly the
    aggregate life sentences, constitute cruel and unusual punishment. He
    argues the United States Supreme Court opinions in Miller v. Alabama and
    Graham v. Florida mandate that juvenile offenders must receive sentences
    that grant a meaningful opportunity to obtain release from prison. Doody
    further argues Miller identified mitigating circumstances that a trial court
    must consider before it imposes sentence on a juvenile defendant and the
    trial court erred when it failed to consider and/or find those mitigating
    circumstances.
    ¶17            Doody raised no objection to his sentences or the court’s
    failure to consider any mitigating circumstances, nor did he identify Miller
    as authority that required the court to consider any specific circumstances.
    Even so, “[i]mposition of an illegal sentence constitutes fundamental error.”
    State v. Thues, 
    203 Ariz. 339
    , 340, ¶ 4, 
    54 P.3d 368
    , 369 (App. 2002).
    ¶18           We find no error. First, Doody misconstrues the holdings in
    Miller and Graham. In Graham, the sole issue was whether the Constitution
    permits a court to sentence a juvenile defendant to life imprisonment
    without the possibility of parole “for a nonhomicide crime.” Graham v.
    Florida, 
    560 U.S. 48
    , 52-53 (2010) (emphasis added). The Supreme Court
    held the Eighth Amendment forbids such sentences. 
    Id. at 74.
    The Court
    further held states must give a juvenile offender convicted of a
    nonhomicide crime “some meaningful opportunity to obtain release based
    on demonstrated maturity and rehabilitation.” 
    Id. at 75.
    The court made
    clear, however, that states need not guarantee eventual freedom for a
    “juvenile nonhomicide offender” and are not required to release such
    offenders during their natural lives. 
    Id. For these
    reasons, Graham has no
    application here.
    ¶19           Likewise, Miller has no application. In Miller, the Supreme
    Court held the Eighth Amendment prohibits mandatory sentences of life
    imprisonment without the possibility of parole for juvenile offenders.
    Miller v. Alabama, __ U.S. __, 
    132 S. Ct. 2455
    , 2460 (2012). Doody did not
    receive a mandatory sentence of life without the possibility of parole.
    Further, Miller expressly held that a juvenile offender who commits a
    homicide may still receive a sentence of life imprisonment without the
    possibility of parole. Id., __ U.S. at __, 132 S. Ct. at 2469. Miller simply
    requires the sentencing court to consider the offender’s age and “how
    children are different” before it does so. 
    Id. Despite Doody’s
    argument to
    the contrary, Miller did not list specific mitigating circumstances the court
    must consider. The factors Doody identifies from Miller were simply the
    court’s examples of the “hallmark features” of young age and other factors
    8
    STATE v. DOODY
    Decision of the Court
    attendant to juveniles and juvenile life that mandatory life sentences without
    the possibility of parole do not allow a sentencing court to consider. Id., __
    U.S. at __, 132 S. Ct. at 2468.
    ¶20           Second, as noted above, the trial court found Doody’s age was
    a mitigating circumstance. The court further noted that it considered
    Doody’s sentencing memorandum and did not suggest that it refused to
    consider any of the circumstances Doody identified. That memorandum
    detailed Doody’s background, including his difficulty in school, difficulty
    with the English language, the alcoholism of his stepfather, physical and
    mental abuse by his stepfather, Doody’s social awkwardness, his lack of
    emotional maturity and awareness at the time of the offenses and his
    exemplary behavior while in custody. A trial court must only consider
    mitigating factors. See State v. Jenkins, 
    193 Ariz. 115
    , 121, ¶ 25, 
    970 P.2d 947
    ,
    953 (App. 1998). The court need not find mitigating factors simply because
    there is evidence of those factors. 
    Id. The trial
    court considered the factors
    presented and nothing more was required.
    ¶21            Finally, Doody received the minimum sentence available for
    each count of first degree murder - life with a possibility of release after
    twenty-five years. A.R.S. § 13-703(A) (1989). That Doody will spend the
    rest of his life in prison because the court properly imposed consecutive
    sentences is of no matter. A sentence that does not violate the prohibitions
    against cruel and unusual punishment does not become unconstitutional
    “merely because it is consecutive to another sentence for a separate offense
    or because the consecutive sentences are lengthy in aggregate.” State v.
    Berger, 
    212 Ariz. 473
    , 479, ¶ 28, 
    134 P.3d 378
    , 384 (2006).
    9
    STATE v. DOODY
    Decision of the Court
    III.   Conclusion
    ¶22          Because we find no error, we affirm Doody’s convictions and
    sentences.
    :ama
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