STATE OF ARIZONA, Appellee, BRYAN WAYNE HULSEY, Appellant. Filed January 18, 2018
THE CASE: {{Bryan Wayne Hulsey was sentenced to death after a jury found him guilty of the first degree murder of an on duty peace officer (LE). Hulsey also received a consecutive nine-year sentence for his conviction of attempted first degree murder of another on duty peace officer.
We affirm Hulsey’s convictions and prison sentence, but vacate his death sentence and remand for new penalty phase proceedings. }}
COURT ON STANDARD OF REVIEW, RULING ON MISCONDUCT BY JM:
We review a denial of a motion for mistrial based on cumulative prosecutorial misconduct for
an abuse of discretion. We begin by assessing each claim of misconduct; we review
objected-to claims for harmless error and unobjected-to claims for fundamental error.
After determining which claims constitute error, this Court reviews the cumulative misconduct to determine whether the total effect rendered defendant’s trial unfair.
(COURT’S FINAL RULING ON MISCONDUCT):
Here, although prosecutor Juan Martinez engaged in several instances of misconduct or near misconduct, altogether it was not so prolonged or pronounced that it affected the fairness of trial.
---------------------------------------------
I. THE COURT'S ANALYSIS AND RULINGS ON (MOST OF) THE MISCONDUCT CLAIMS REVIEWED, BROKEN DOWN BY TRIAL PHASES.
A.
In VOIR DIRE. Use of the word “debate,” Use of the word “bullied.”
B.
In GUILT PHASE
CHARGE: Improper Cross-examination of witness:
(JM) “talked over [a] witness and refused to let him answer the questions,” and insinuated that the witness was unethical. (..) was yelling and screaming at the witnesses and flailing his arms.
At trial, the court overruled defense counsel’s objections and stated that the prosecutor simply had a “very animated style.” We cannot conclude from the record that this assessment was incorrect.
(Also, that) throughout cross-examination, the prosecutor asked a series of questions designed to mislead the jury into believing a witness was testifying unethically, constituting improper burden shifting. In ruling on the objection, the court found that there was no evidence of unethical conduct and so instructed the jurors.
COURT RULING: This Court gives great latitude to conclusions drawn by judges who observe trial behavior first hand. [W]e note that the trial court is in a better position to judge whether the prosecutor is unduly sarcastic, his tone of voice, facial expressions, and their effect on the jury, if any.”).
(We find) no reason to overturn the trial court’s conclusion that the prosecutor’s tone had no effect on the verdict. Additionally, although “t is improper . . . to imply unethical conduct on the part of an expert witness in the absence of evidentiary support,”, any improper implication of unethical conduct or burden shifting was remedied when the trial court instructed the jurors that it “specifically found that this witness has not violated any code of ethics as set forth in any document.”
OVERALL CHARGE: Misconduct in Closing argument
CHARGES:
1. Comments about defense witnesses
JM insinuated in his closing argument that defense witness Greene was untruthful. JM discussed Mr. Greene’s candor and encouraged the jurors to infer that his different styles of answering corresponded with the varying truthfulness of his statements. JM stated that Mr. Greene “is somebody that you really can’t trust.”
Counsel have wide latitude to argue reasonable inferences from the evidence, but cannot make insinuations that have no evidentiary support.
COURT RULING: Here, the prosecutor’s conduct was close to crossing the line, but the record did contain facts on which he could fairly base his argument.
JM highlighted his observations that Greene was sometimes less vocal during cross-examination than in direct examination. From this, JM told the jurors that in order to assess Greene’s credibility, they should consider the way he answered questions. In context, the comments were not improper.
2. Comments about defense counsel and defense theory
Throughout the closing argument JM continued to imply that defense counsel was a liar and made other personal attacks. JM invoked the story of Don Quixote and compared the defense’s theory to tilting at windmills. He repeatedly analogized the defense’s evidence in the case to the imaginary monsters in that story. He stated that the defense wanted the jury to “[go] to Neverland” and enter the “Land of Oz.” Hulsey unsuccessfully moved for mistrial based on the “unethical behavior.”
COURT RULING: While commentary about the defense’s theory is common, “[a]n argument that impugns the integrity or honesty of opposing counsel is . . . improper.” The prosecutor’s comments equating defense counsel to Don Quixote were different from those discussing defense theories. The prosecution impugned defense counsel’s integrity by suggesting he was purposely leading the jury on a make-believe expedition.
These improper statements, however, were brief and on this record we cannot say that they affected the jury’s verdict, especially in light of the instruction to the jury that counsel’s arguments are not evidence.
(Additional claims about misconduct in this phase included Misstating the evidence, Disparate theories, Improper vouching for {witness}Patsy Jones).
C. MISCONDUCT IN PENALTY PHASE
CHARGES:
1.
Duty of the jury argument (error for the prosecutor to quote poet John Donne at the end of the penalty phase by proclaiming: …” it tolls for each of you to do your duty and return a verdict of death.” (Misconduct exists where “remarks called to the jurors’ attention matters that they should not consider”).
COURT RULING: The context of the remark was not of such magnitude to influence the jurors and cause Hulsey prejudice.
2. Cross-examination of penalty phase experts
“Loud verbose witness attacks began in earnest” as JM cut off answers and raised his voice at Wicks, a psychologist who testified regarding Hulsey’s mental abnormalities. Hulsey objected and the trial court overruled, stating that it was just the prosecutor’s style.
Hulsey also notes that the trial court sustained objections regarding the prosecutor’s tone in both Dr. Globus’ and Dr. Cunningham’s testimony, warning the prosecutor to “keep the tone.” The trial court “admonished JM to not be disrespectful” in his cross-examination with the prison expert, Aiken.
COURT RULING:
The trial court observed that the prosecutor’s tone was consistent for all witnesses and that there was no misconduct. As stated above, the trial court is in the best position to gauge whether a counsel’s tone crosses the line into misconduct. Here, Hulsey has given us no reason to disturb the court’s finding.
3. Misstatement of the law
JM misstated the law when he argued that the jury should not consider whether the defendant was high at the time of the shooting because there must be a nexus between the mitigation and the crime. The trial court overruled the objection and stated that the jury could determine what the instructions say and the defense could point that out in rebuttal.
COURT RULING:
This misstatement of law was improper. However, the trial court instructed the jurors that they were not required to find a connection between the mitigating circumstance and the crime in order to consider the evidence.
Further, defense counsel explained in rebuttal that there was no need for a nexus between mitigation and the crime. Defense counsel also argued to the jury that the prosecutor was ignoring the instructions and asking the jury to ignore them as well. Any error here was cured.
4. Liar remarks
Hulsey claims JM argued over objection that both defense counsel and defense expert, Dr. Wicks, lied to the jury regarding Hulsey’s IQ. Referring to Dr. Wicks, the prosecutor stated: He lied. He’s a doctor and he is a psychologist and he’s board certified. Give him all that. Put him on the pulpit, but that hero has clay feet. That guy came in here, looked you -- and remember how he looked at you when he was doing direct examination, looked you right in the eye and lied.
After the objection was overruled, the prosecutor explained that the expert misstated what tests he ran and that he “made up a number.”
The record generally shows JM would not let Dr. Wicks explain his reasons for picking a prorated number and why he would have “made up a number.” JM accurately argued that Dr. Wicks “did all these tests and didn’t report them,” but incorrectly stated that Dr. Wicks lied by stating that he completed the two-phase test.
COURT RULING:
To the extent that JM insinuated that Dr. Wicks acted unethically, it was improper; and any insinuation that the time constraints were Dr. Wicks’ fault was also improper.
But any effect this may have had on the jury subsided on redirect, when defense counsel gave Dr. Wicks an opportunity to explain any inconsistencies. Dr. Wicks told the jury he had to prorate the score of one of the tests because he was running out of time and discussed standard protocol. Moreover, the trial court instructed the jury that the arguments of counsel were not evidence.
D. CUMALATIVE ERROR
Hulsey claims that JM’S “repeated and pervasive attacks on defense witnesses; improper questions and jury arguments were intentional and calculated to ‘win-by-any-means.’” Hulsey contends there is a reasonable likelihood that the misconduct tainted the verdict.
When assessing cumulative error, this Court “consider whether persistent and pervasive misconduct occurred and whether the cumulative effect of the incidents shows that the prosecutor intentionally engaged in improper conduct and did so with indifference, if not specific intent, to prejudice the defendant.”
Here, the lack of respect, poor courtroom decorum, and unnecessary verbal attacks on defense counsel and experts were unbecoming of an Arizona prosecutor, especially one with as much experience as Mr. Martinez.
By engaging in such conduct, a prosecutor places a case in serious danger of mistrial. However, “[w]e do not . . . reverse convictions merely to punish a prosecutor’s misdeeds []or to deter future misconduct.”
We do, though, once again remind prosecutors, and particularly Mr. Martinez (whose misbehavior has been repeatedly noted in prior cases), that they are to act as ministers of justice and exercise professionalism even in the heat of trial.
Nonetheless, Hulsey has failed to show that the actual misconduct in this case so permeated and infected his trial as to render it unfair. The court’s instructions to the jury helped mitigate any impact the cumulative misconduct had.
Hulsey thus failed to show that cumulative error denied him due process.