IN THE

SUPREME COURT OF THE STATE OF ARIZONA

_______________

STATE OF ARIZONA,

Appellee,

v.

ROBERT HERNANDEZ,

Appellant.

_______________

No. CR-10-0415-AP

Filed July 26, 2013

_______________

Appeal from the Superior Court in Maricopa County

The Honorable Sally Schneider Duncan, Judge

No. CR2008-124043-001

AFFIRMED

_______________

COUNSEL

Thomas C. Horne, Arizona Attorney General, Jeffrey A. Zick, Chief

Counsel, Kent E. Cattani, Former Chief Counsel Criminal

Appeals/Capital Litigation, Ginger Jarvis, Assistant Attorney General

(argued), Phoenix, for State of Arizona

Michael J. Dew (argued), Michael J. Dew Attorney At Law, Phoenix, for

Robert Hernandez

_______________

JUSTICE BRUTINEL authored the opinion of the Court, in which CHIEF

JUSTICE BERCH, VICE CHIEF JUSTICE BALES, JUSTICE PELANDER,

and JUSTICE TIMMER joined.

_______________

JUSTICE BRUTINEL, opinion of the Court:

¶1 A jury found Robert Hernandez guilty of murdering Jeni SanchezRivera, her husband, Omar Guzman Diaz, and Omar’s younger brother,

Pablo Guzman Diaz, as well as attempted murder for shooting and

seriously injuring Maria Elodia Diaz-Payan. The jury determined

Hernandez should be sentenced to death for each murder. We have
STATE V. HERNANDEZ

Opinion of the Court

2

jurisdiction over this automatic appeal pursuant to Article 6, Section 5(3)

of the Arizona Constitution and A.R.S. § 13-4031.

1

I. FACTUAL AND PROCEDURAL BACKGROUND2

¶2 In April 2008, Maria Diaz-Payan traveled to Phoenix to visit her

friend, Jeni Sanchez-Rivera, who lived with her husband, Omar Guzman

Diaz. After Maria’s arrival, she, Jeni, Jeni’s son, and Jeni’s friend, Sonia

Gonzalez, took a short trip to New Mexico in a car rented by Sonia’s

mother, Martha Gonzalez.

¶3 Sonia Gonzalez is the mother of Hernandez’s three children. While

in New Mexico, Sonia missed a birthday party for one of her and

Hernandez’s children, Angel, which angered Hernandez.

¶4 The day after returning from New Mexico, Jeni and Maria met

Omar and Omar’s younger brother, Pablo Guzman Diaz, and drove to

Jeni’s house in Peoria. Upon arriving, Omar and Pablo entered the house

first, while Jeni and Maria stayed in the car. Shortly thereafter, Hernandez

came outside and walked toward the car. Although Maria did not know

Hernandez, Jeni referred to him as “Bobby.” Removing a gun from his

pants, Hernandez forced Maria and Jeni into the house, telling them not to

scream or make any noise.

¶5 Once inside, Maria could hear Omar and Pablo crying and shouting

from inside Jeni’s bedroom. While Hernandez forced Maria and Jeni

down a corridor to another bedroom, Maria saw another man wearing a

ski mask and holding a pistol in Jeni’s bedroom. She could hear Omar

and Pablo pleading for the men not to hurt them or their family. Maria

heard Omar ask Hernandez, “What harm have we done to you, Bobby?”

¶6 Hernandez bound Jeni’s and Maria’s hands behind their backs.

While on the bedroom floor, Maria did not look at her captors’ faces,

hoping they would not harm her. Maria heard Hernandez and Jeni talk

about Sonia. Then, Maria heard Hernandez slap Jeni.

1 We cite the current version of statutes that have not materially

changed since the events at issue.

2 The facts are presented in the light most favorable to sustaining the

jury’s verdicts. State v. Hardy, 230 Ariz. 281, 284 ¶ 2 n.2, 283 P.3d 12, 15 n.2

(2012).
STATE V. HERNANDEZ

Opinion of the Court

3

¶7 After Hernandez returned to Omar and Pablo, Maria heard several

gunshots, and Omar’s and Pablo’s cries ended. Shortly thereafter,

Hernandez and the masked man walked to the bedroom where Maria and

Jeni lay. Maria heard gunshots and “right away noticed that they had

already shot [Jeni].” One of the two men then shot Maria.

¶8 Sometime later, Maria realized she was still alive, but bleeding

from the scalp. She ran to a neighbor’s house to get help and was later

taken to a hospital, where she underwent surgery to remove a bullet from

her head. At the hospital, Detective Lopez showed Maria a photo lineup

of six men. Maria identified a photo of Robert Hernandez as “Bobby.”

¶9 Peoria Police detectives found the bodies of Jeni, Omar, and Pablo

at the house. Omar’s body had six stab wounds. According to the

medical examiner, these wounds were likely inflicted while Omar was still

alive. Police also found one copper-jacketed bullet and two lead-jacketed

bullets in the room, suggesting two different weapons were used to kill

Omar and Pablo.

¶10 Police later determined that Jeni and Martha Gonzalez co-leased

the house where the murders occurred. Martha was initially cooperative

with the detectives and identified the “Bobby” described by Maria as

Robert Hernandez. She told Detective Lopez that Hernandez had a gun,

knew where Jeni and Omar lived, and was upset because Sonia went to

New Mexico with Jeni and had missed Angel’s birthday party. She also

told Detective Lopez that Hernandez had called her at approximately 5:30

p.m. on the day of the murders to say “Omar and Jeni would not be

bothering Sonia anymore.”

II. ISSUES ON APPEAL

A. Denial of Requests for Change of Counsel

¶11 Hernandez asserts that the trial court did not sufficiently inquire

into the bases for his three requests for new counsel and erred in denying

the requests. We review a trial court’s ruling denying a change of counsel

for an abuse of discretion. State v. Torres, 208 Ariz. 340, 343 ¶ 9, 93 P.3d

1056, 1059 (2004).

¶12 As we recently stated in State v. Gomez, “[t]he Sixth Amendment

guarantees criminal defendants the right to representation by counsel, but

an indigent defendant is not entitled to counsel of choice, or to a

meaningful relationship with his or her attorney.” 231 Ariz. 219, 224 ¶ 19,

293 P.3d 495, 500 (2012) (quoting Torres, 208 Ariz. at 342 ¶ 6, 93 P.3d at
STATE V. HERNANDEZ

Opinion of the Court

4

1058) (internal quotation marks omitted), cert. denied, 133 S. Ct. 2339

(2013). The trial court must appoint new counsel, however, if either “an

irreconcilable conflict or a completely fractured relationship between

counsel and the accused” exists. State v. Cromwell, 211 Ariz. 181, 186 ¶ 29,

119 P.3d 448, 453 (2005).

¶13 To preserve a defendant’s Sixth Amendment right to counsel, the

trial court has a “duty to inquire as to the basis of a defendant’s request

for substitution of counsel.” Torres, 208 Ariz. at 343 ¶ 7, 93 P.3d at 1059.

The court must make the inquiry on the record. Id. (citing United States v.

Morrison, 946 F.2d 484, 499 (7th Cir. 1991)).

¶14 “The nature of the [court’s] inquiry will depend upon the nature of

the defendant’s request.” Id. ¶ 8. On the one hand, “generalized

complaints about differences in strategy may not require a formal hearing

or an evidentiary proceeding.” Id. On the other hand, if the defendant

sets forth “sufficiently specific, factually based allegations, . . . [the] court

must conduct a hearing into his complaint.” Id. (quoting United States v.

Lott, 310 F.3d 1231, 1249 (10th Cir. 2002)) (internal quotation marks

omitted).

¶15 If the trial court does conduct an inquiry, the defendant bears the

burden of proving either a “complete breakdown in communication or an

irreconcilable conflict.” Id. at 342 ¶ 6, 93 P.3d at 1058. To satisfy this

burden, the defendant must present evidence of a “severe and pervasive

conflict with his attorney or evidence that he had such minimal contact

with the attorney that meaningful communication was not possible.” Lott,

310 F.3d at 1249. A colorable claim “must go beyond personality conflicts

or disagreements with counsel over trial strategy.” Cromwell, 211 Ariz. at

187 ¶ 30, 119 P.3d at 454. If a defendant meets this burden, the trial court

“must grant the request for new counsel.” Torres, 208 Ariz. at 343 ¶ 8, 93

P.3d at 1059.

1. Trial Court’s Inquiry into Hernandez’s Request for New Counsel

¶16 Hernandez argues that his allegations that defense counsel had

only visited him at the jail four times in more than two years and had

never spoken with him about his case were sufficiently specific to require

a Torres hearing. Hernandez asserts that the trial court’s inquiry was

insufficient and asks this Court to remand for a more extensive

evidentiary hearing on his claims. Although the trial court could have

engaged in a more searching exploration of the responses from

Hernandez’s attorneys as to whether there were irreconcilable differences,
STATE V. HERNANDEZ

Opinion of the Court

5

the court did not abuse its discretion because its inquiry was sufficient.

¶17 The record reflects that during the course of this case, Hernandez

met and communicated with his attorneys several times. For example, on

December 10, 2008, Hernandez, his two attorneys, Rodrick Carter and

Stephen Johnson, as well as his mitigation specialist, attended a mitigation

status conference. There, the court asked Hernandez: “Do you have any

questions of your defense team or -- are they keeping you pretty well

advised of what is going on?” Hernandez assented. The court concluded

that “it sounds like you have got a good working relationship with your

defense team. So continue to be cooperative with them.”

¶18 On February 6, 2009, the court conducted another mitigation status

conference attended by Hernandez, his two defense attorneys, and his

mitigation specialist. Hernandez again affirmed that his attorneys had

been giving him progress reports. Mr. Carter also communicated

Hernandez’s request to be tried by his “last day.” The court again

concluded that “Defendant remains cooperative with his defense team.”

¶19 Six months later on August 20, Hernandez filed a motion to

withdraw counsel and appoint new counsel. He alleged that his attorney

had visited him only once “in approximately 15 months” and had never

discussed his case. Because of this “lack of communication,” Hernandez

claimed there was “no client and lawyer relationship.” The trial court did

not rule on this motion, but six weeks later, on October 7, the court

conducted a case management conference. Hernandez and both of his

attorneys were present. Mr. Carter informed the court of Hernandez’s

decision to waive time by noting: “I’ve discussed it with my client, he has

agreed to waive time.” On July 21, 2010, the court conducted another case

management conference with Hernandez and his counsel. Mr. Carter

advised the court that Hernandez “ha[d] indicated to [Carter] that he

cannot see and needs glasses.”

¶20 Two months later, on September 24, Hernandez filed a second

motion for new counsel based on “irreconcilable differences” and

“conflicts of interest.” Hernandez stated that he had filed a bar complaint

and a civil lawsuit against Mr. Carter because “Mr. Carter has not gone

over this case” and “refuses to allow [me] to have a part in [my] defense.”

¶21 The trial court addressed Hernandez’s motion on October 1, asking

Hernandez and his counsel whether there were irreconcilable differences.

Mr. Carter denied any conflict with Hernandez and acknowledged that

“Mr. Hernandez is frustrated with communication as far as him being able
STATE V. HERNANDEZ

Opinion of the Court

6

to participate in his defense as far as the investigation goes and possible

witnesses that he — that he may feel are important.” Mr. Carter agreed to

address those issues with Hernandez. Mr. Johnson, Hernandez’s second

chair counsel, echoed Mr. Carter’s response.

¶22 The court then asked whether defense counsel felt that

communication with Hernandez had broken down or irreconcilable

differences, other than differences in strategy, had arisen. Mr. Carter said

no, but agreed to speak with Hernandez about his strategic concerns.

¶23 The trial judge denied Hernandez’s motion, finding no basis for

removing counsel. The judge then explained the role of counsel in a

criminal proceeding, as well as Hernandez’s specific constitutional rights.

¶24 Hernandez responded:

Well, your Honor, I’ve been here for two years and four

months. I’ve been visited by him four times, and I can tell

you exactly why, and never once have I spoken to him about

my case or anything in my case, not once, Your Honor.

. . . .

I’ve asked him to, if he could, come over so we can go over it

and I could tell him some certain things that I know about,

and it’s never happened, Your Honor, and there’s like -- my

mother-in-law is a witness to this case that’s really crucial to

this, and just the other day they tried to interview her just

barely Thursday or Wednesday it was, and Your Honor,

we’ve got three weeks.

. . . .

And then I got a lot of other people too that they should

have interviewed by now that haven’t been interviewed.

¶25 Mr. Carter then addressed the visitation issue:

Mr. Hernandez has received visits from myself, Mr. Johnson

and Maria Del La Rosa, my mitigation specialist. Mr.

Hernandez has received his file when requested as far as the

police reports, and I believe he received them early on. The

visitation with Mr. Hernandez and in our investigation into

this trial, Judge, is we will be ready for trial on the 18th as
STATE V. HERNANDEZ

Opinion of the Court

7

scheduled.

Mr. Carter next spoke to Hernandez’s concerns regarding witness

interviews:

With respect to the witnesses being interviewed, Martha

Gonzalez I believe he’s speaking about right now, she

interviewed with the police, which we have a transcript of.

She interviewed with codefendant’s counsel, which we have

a -- if we don’t have a transcript, we definitely have the copy

of the tape. She’s also testified twice. We have statements

from her in at least four different pretrial areas. We have

statements from other witnesses that were either conducted

by the police or previous defense counsel as well.

¶26 Following defense counsel’s responses, the trial court explained

that differences in trial strategy did not provide adequate grounds to

disqualify counsel. The court denied Hernandez’s motion, but ordered

both lawyers and the mitigation specialist to meet to talk with Hernandez

within the week.

¶27 Hernandez filed a third motion to change counsel a week later. He

reasserted his claim of a lack of communication and emphasized that Mr.

Carter “has yet to interview any witnesses,” and has refused his requests

to view “any and all evidence, police reports, [and] supplements in said

police report.”

¶28 On October 12, the trial court held a hearing to determine whether

counsel had met with Hernandez and was ready to begin trial as

scheduled. The trial judge asked, “Did you listen to everything he had to

say that was of concern?” Mr. Carter responded, “yes.” Hernandez

protested:

Like I was telling you, Judge, you know, the whole time I

have been here, the first time I heard anything about my case

was right here when he talked to me the first time. He

didn’t ask my opinion, any kind of strategy, anything.

That’s the first time he talked to [me] about it the whole

time; two years, six months.

Hernandez also claimed that, in a discussion with Hernandez’s wife, Mr.

Carter did not recognize the names of Hernandez’s co-defendants. The

court denied Hernandez’s motion, but ordered that the lawyers again

meet with Hernandez at the jail.
STATE V. HERNANDEZ

Opinion of the Court

8

¶29 Hernandez raised sufficiently specific factual allegations to warrant

an inquiry. But the judge’s inquiry fulfilled the requirements of Torres.

The transcript of the court’s inquiry on October 1 contains more than

thirteen pages of discussion between the court, Hernandez, and his

counsel, concerning Hernandez’s motion for new counsel, including

several specific questions addressed to Hernandez and his lawyers about

whether there were “irreconcilable differences” or a “breakdown in

communication.” The court listened to Hernandez and ordered counsel to

meet with Hernandez to address his concerns. The trial court sufficiently

considered and addressed Hernandez’s allegations.

¶30 Likewise, the court’s second inquiry on October 12 confirmed that

Hernandez had met with the lawyers as ordered. The court listened to

and considered Hernandez’s ongoing concerns and his attorneys’

responses. The second inquiry was sufficient.

¶31 Nevertheless, we underscore the importance of conducting a Torres

inquiry and establishing a thorough record for appeal. “In order to

exercise its discretion properly the court must elicit from the defendant

the reasons for his objection to counsel.” Torres, 208 Ariz. at 343 ¶ 9, 93

P.3d at 1059 (quoting United States v. Morris, 714 F.2d 669, 673 (7th Cir.

1983)). Likewise, if the defendant makes specific allegations when

requesting new counsel, the trial court should elicit specific on-the-record

responses to the allegations from defense counsel.

2. Denial of Requests for New Counsel

¶32 Hernandez argues that even if the inquiry was sufficient, “the trial

court erred in refusing to grant defendant’s multiple requests for new

counsel.” We disagree.

¶33 Although Hernandez claims that his attorneys were ineffective in

preparing for trial and did not communicate with him, at bottom his

complaint is that his lawyers had not adequately consulted him regarding

trial strategy and were not sufficiently familiar with his case. We have

previously characterized similar complaints, when unsupported by the

record, as disagreements over trial strategy. See State v. Henry, 189 Ariz.

542, 547, 944 P.2d 57, 62 (1997).

3 Such disagreements do not amount to

3 Hernandez’s arguments may be raised in a Rule 32 petition for

post-conviction relief. See Henry, 189 Ariz. at 547, 944 P.2d at 62

(“Although tactical decisions may raise concerns about attorney
STATE V. HERNANDEZ

Opinion of the Court

9

“irreconcilable differences” and are not alone a basis for new counsel.

Cromwell, 211 Ariz. at 186–87 ¶¶ 29–30, 119 P.3d at 453–54.

¶34 Something less than irreconcilable conflict becomes merely “one

factor for a [trial] court to consider” in determining whether to appoint

new counsel. Id. at 186 ¶ 29, 119 P.3d at 453. A trial court should also

evaluate (1) “whether new counsel would be confronted with the same

conflict”; (2) “the timing of the motion”; (3) “inconvenience to witnesses”;

(4) “the time period already elapsed between the alleged offense and

trial”; (5) “the proclivity of the defendant to change counsel”; and (6) the

“quality of counsel.” Id. at 187 ¶ 31, 119 P.3d at 454 (quoting State v.

LaGrand, 152 Ariz. 483, 486–87, 733 P.2d 1066, 1069–70 (1987)). Although

the defendant’s concerns must be evaluated and carefully considered, the

trial court must also “balance the rights and interests of the defendant

against the public interest in judicial economy, efficiency and fairness.”

Id.

¶35 Although the trial court did not explicitly refer to the

aforementioned factors, the record indicates that the court considered

them when assessing whether new counsel was warranted. The trial

judge determined that there was neither an irreconcilable conflict nor a

complete breakdown in communication that would require new counsel.

The judge was aware that Hernandez had been in jail for two and a half

years awaiting trial and that another continuance of the trial, which had a

“firm” setting three weeks away, would certainly delay the case and

inconvenience witnesses. The judge also examined the quality of counsel

by questioning both attorneys about whether they were adequately

prepared to go to trial and to competently represent their client.

¶36 Accordingly, the trial court sufficiently inquired into the bases for

Hernandez’s requests for new counsel and did not abuse its discretion in

denying the requests.

B. Impeachment Evidence Relating to Maria

¶37 Hernandez asserts that the trial court erred by twice refusing to

permit him to impeach Maria, the surviving victim, with her prior

inconsistent statements. We review a trial court’s ruling regarding the

scope of cross-examination for an abuse of discretion. State v. Ellison, 213

Ariz. 116, 132 ¶ 52, 140 P.3d 899, 915 (2006). Although Hernandez argues

competence, such matters are more properly analyzed in post-conviction

relief proceedings.”).
STATE V. HERNANDEZ

Opinion of the Court

10

that he should have been allowed to impeach Maria’s testimony with her

prior inconsistent statements, the trial court did not err in precluding the

questions absent an offer of proof of the prior statements. The lack of an

offer of proof forecloses Hernandez’s argument on appeal. See Ariz. R.

Evid. 103(a)(2); State v. Bay, 150 Ariz. 112, 115, 722 P.2d 280, 283 (1986).

¶38 On direct examination, Maria testified several times that a man she

did not know came out of the house toward the car. Although she did not

know who this man was, Maria testified that she was able to clearly see a

man, who was identified to her by Jeni as “Bobby,” when she was forced

from the vehicle into the house. Maria also testified that she did not look

at Bobby’s face once she was inside the home for fear of additional harm.

She only “saw [the men’s] feet coming and going.”

¶39 On cross-examination, defense counsel sought to impeach Maria’s

testimony with statements purportedly made to Officer Rodriguez:

Q. Ms. Diaz, do you remember telling Officer Rodriguez

when he asked you who did this, do you recall responding:

There were two. I did not see them. One said do not look at

us or we will kill you. Do you recall saying that?

The trial court sustained the prosecutor’s objection to improper

impeachment. Defense counsel did not make an offer of proof.

¶40 Defense counsel later attempted to impeach Maria by asking, “So

you did not tell Officer Rodriguez that you did not see these people until

you were inside the house?” The prosecution again objected to improper

impeachment. The trial court sustained the objection, and defense counsel

again did not make an offer of proof.

¶41 Prior inconsistent statements may be used to impeach the

credibility of a witness, and such statements may be proven by extrinsic

evidence. Ariz. R. Evid. 613(b)(2). “As a preliminary matter, however, the

court must be persuaded that the statements are indeed inconsistent.”

United States v. McLaughlin, 663 F.2d 949, 952 (9th Cir. 1981) (quoting

United States v. Hale, 422 U.S. 171, 176 (1975)); see also Ariz. R. Crim. P. 19.3

(“No prior statement of a witness may be admitted for the purpose of

impeachment unless it varies materially from the witness’ testimony at

trial.”).

¶42 A party can claim the exclusion of evidence is error only if the

exclusion affects the party’s substantial rights and the party makes an

offer of proof. Ariz. R. Evid. 103(a)(2). An offer of proof is critical because
STATE V. HERNANDEZ

Opinion of the Court

11

it permits “the trial judge to reevaluate his decision in light of the actual

evidence to be offered, . . . and to permit the reviewing court to determine

if the exclusion affected the substantial rights of the party offering it.”

Fortunato v. Ford Motor Co., 464 F.2d 962, 967 (2d Cir. 1972). Because

defense counsel did not make an offer of proof as to how Maria’s

purported pre-trial statements to Officer Rodriguez were inconsistent

with her testimony, neither the trial court, nor this Court, can assess

whether Maria’s pretrial statements varied materially from her in-court

testimony.

¶43 An offer of proof is not required if “it is obvious what the answer of

the witness will be or what the proof will be,” State v. Belcher, 109 Ariz.

551, 553, 514 P.2d 472, 474 (1973), or the relevancy and materiality of the

excluded evidence is apparent, State v. Kaiser, 109 Ariz. 244, 247, 508 P.2d

74, 77 (1973). In this case, it is not obvious what the relevance of the first

impeachment attempt was because Maria’s direct testimony does not

notably conflict with her purported statements to Officer Rodriguez. Her

alleged statements to Officer Rodriguez, — “There were two. I didn’t see

them. One said do not look at us or we will kill you.” — correspond to

Maria’s direct testimony as she explained that she saw Hernandez while

she was outside the home, but once inside, she did not look at Hernandez

again for fear of additional harm. An offer of proof would have provided

the trial court, and this Court, with the basis to discern any inconsistency.

¶44 The second impeachment attempt poses similar problems. Defense

counsel was ostensibly asserting that Maria told Officer Rodriguez that

she did not see “Bobby” and his accomplice until she was inside the

house, as opposed to her direct testimony where she stated that she saw

“Bobby” walk toward her and Jeni in the car outside. But defense

counsel’s cross-examination attempted to impeach Maria’s purported

statements to Officer Rodriguez in two different ways. First, defense

counsel asked whether Maria told Officer Rodriguez “There were two. I

did not see them. One said do not look at us or we will kill you.” Then, just

nine questions later, defense counsel asked whether Maria told Officer

Rodriguez that she “did not see these people until you were inside the

house.” Again, without an offer of proof, we cannot know what Maria

told Officer Rodriguez or whether it was inconsistent with her trial

testimony. Because the substance of the alleged prior inconsistent

statement is not readily apparent, the absence of an offer of proof renders

us unable to evaluate the trial court’s ruling and precludes Hernandez’s

argument on appeal. Accordingly, we cannot say the trial court abused its

discretion.
STATE V. HERNANDEZ

Opinion of the Court

12

C. Impeachment Evidence to Substantively Prove Guilt

¶45 Hernandez next argues that the court should not have allowed the

State to present evidence impeaching Martha Gonzalez as substantive

evidence of Hernandez’s guilt. Because Hernandez did not object at trial,

we review for fundamental error. State v. Henderson, 210 Ariz. 561, 567

¶ 19, 115 P.3d 601, 607 (2005). To obtain relief under that standard of

review, Hernandez “must first prove error.” Id. at 568 ¶ 23, 115 P.3d at

608. We find none.

¶46 At trial, Martha was evasive when the State asked whether she

talked with Hernandez on the day of the murders. She initially denied

speaking with Hernandez, but then admitted she had done so after the

State asked if she remembered telling Detective Lopez that she spoke with

Hernandez that day. The State then asked if she remembered telling

Detective Lopez that Hernandez told her that “Omar and Jeni weren’t

going to be bothering Sonia anymore.” Martha did not remember making

such a statement. In rebuttal, the State recalled Detective Lopez, who

testified that Martha had told him that she had “several phone

conversations with Bobby the day of the murders” and Martha heard

Hernandez tell her that “Omar and Jeni weren’t going to be bothering

Sonia anymore.” According to Hernandez, Martha’s prior inconsistent

statement should not have been used substantively as the admission

significantly contributed to his conviction. Although we agree that the

statement likely contributed to Hernandez’s conviction, the trial court did

not err in admitting the statement.

¶47 A prior inconsistent statement

4 by a witness subject to crossexamination is not hearsay. Ariz. R. Evid. 801(d)(1)(A). Prior inconsistent

statements can be used substantively and to impeach. See, e.g., State v.

Skinner, 110 Ariz. 135, 142, 515 P.2d 880, 887 (1973).

¶48 But substantive use of a prior inconsistent statement is not limitless.

A prior inconsistent statement admissible under Rule 801(d)(1)(A) can be

excluded under Arizona Rule of Evidence 403 if it creates a danger of

unfair prejudice. State v. Allred, 134 Ariz. 274, 278, 655 P.2d 1326, 1330

(1982). Allred enumerated five factors to consider when assessing whether

Rule 403 should bar admission of a prior inconsistent statement for

4 “A claimed inability to recall, when disbelieved by the trial judge,

may be viewed as inconsistent with previous statements.” State v.

Hausner, 230 Ariz. 60, 76 ¶ 58, 280 P.3d 604, 620 (2012). Hernandez does

not dispute that Martha’s testimony was inconsistent.
STATE V. HERNANDEZ

Opinion of the Court

13

substantive purposes:

1. the witness being impeached denies making the

impeaching statement, and

2. the witness presenting the impeaching statement has

an interest in the proceeding and there is no other

corroboration that the statement was made, or

3. there are other factors affecting the reliability of the

impeaching witness, such as age or mental

capacity, . . .

4. the true purpose of the offer is substantive use of the

statement rather than impeachment of the witness,

5. the impeachment testimony is the only evidence of

guilt.

Id. at 277, 655 P.2d at 1329 (alteration in original). Although these five

Allred factors are instructive, they are not exhaustive. Id. Rather,

assessing the danger of unfair prejudice requires a fact-specific

examination into the nature of the prior inconsistent statement and the

reason for its substantive use. State v. Sucharew, 205 Ariz. 16, 23 ¶ 20, 66

P.3d 59, 66 (App. 2003).

¶49 Only the fourth factor weighs against the admission of impeaching

testimony because the State wanted to elicit Hernandez’s statement — that

Omar and Jeni weren’t going to be bothering Sonia anymore — for its

substance, rather than to impeach Martha’s credibility. But this is

outweighed by the first, second, third, and fifth Allred factors favoring

admission. The trial court could well have found that the possibility of

unfair prejudice did not outweigh the probative value of the testimony.

The court did not err, let alone fundamentally err, in admitting this

evidence.

D. Evidence of Premeditation

¶50 Hernandez argues that the State presented insufficient evidence of

premeditation. He posits that if a “defendant is an accomplice to an

offense other than murder (i.e., kidnapping) and the principal commits a

premeditated homicide, that accomplice liability does not extend to or is

not imputed to the defendant.” We review the record to resolve “whether

substantial evidence supports the jury’s [premeditation] finding, viewing

the facts in the light most favorable to sustaining the jury verdict.” State v.

Roque, 213 Ariz. 193, 218 ¶ 93, 141 P.3d 368, 393 (2006). Substantial

evidence is “proof that reasonable persons could accept as adequate and
STATE V. HERNANDEZ

Opinion of the Court

14

sufficient to support a conclusion of [the] defendant’s guilt beyond a

reasonable doubt.” Id. (quoting State v. Roseberry, 210 Ariz. 360, 369 ¶ 45,

111 P.3d 402, 411 (2005)) (internal quotation marks omitted).

¶51 For premeditated murder, the State must show substantial

evidence that the defendant, “intending or knowing that the person’s

conduct will cause death, . . . causes the death of another with

premeditation.” A.R.S. § 13–1105(A)(1). “To prove premeditation, the

state must show that a defendant intended to kill another person, and

after forming that intent[,] . . . reflected on the decision before killing.”

State v. VanWinkle, 230 Ariz. 387, 391–92 ¶ 15, 285 P.3d 308, 312–13 (2012)

(quoting State v. Thompson, 204 Ariz. 471, 479 ¶ 32, 65 P.3d 420, 428 (2003))

(internal quotation marks omitted), cert. denied, 133 S. Ct. 909 (2013).

¶52 A defendant can be guilty of premeditated murder as an

accomplice if he intended to facilitate or aid in committing the murder.

Ellison, 213 Ariz. at 134 ¶ 67, 140 P.3d at 917. In Ellison, evidence that the

defendant knew the victims, planned the invasion, and did not attempt to

conceal his identity was sufficient to permit the fact finder to infer that

Ellison intentionally aided or assisted in the killing, or even committed the

murder himself. Id. ¶ 70.

¶53 As in Ellison, the jury could have found that Hernandez acted as an

accomplice, intending to aid in committing the murder. Hernandez knew

the victims. He planned an invasion of their home. He did not attempt to

conceal his identity from them. Although Hernandez argues that no

forensic evidence tied him to the scene, premeditation can, of course, be

proved by circumstantial evidence and was adequately proven here. See

State v. Nelson, 229 Ariz. 180, 185 ¶ 16, 273 P.3d 632, 637 (2012), cert. denied,

133 S. Ct. 131 (2012).

E. Unanimous Enmund-Tison Finding

¶54 Although Hernandez argues that the jury was required to make a

unanimous Enmund-Tison finding, Hernandez concedes, and we agree,

that upholding the premeditation finding renders the Enmund-Tison issue

moot as Enmund-Tison only applies to felony murder. See State v. Dann,

220 Ariz. 351, 366 ¶ 73, 207 P.3d 604, 619 (2009) (requiring no further

Enmund-Tison finding after a premeditated murder verdict).

F. Evidence of Especial Cruelty for the Murder of Jeni

¶55 Hernandez argues that the State failed to present sufficient

evidence that Jeni’s murder was “especially cruel.” We review the entire
STATE V. HERNANDEZ

Opinion of the Court

15

murder transaction to determine whether substantial evidence supports

the jury’s finding of the (F)(6) “especially cruel” aggravating factor. State

v. Gallardo, 225 Ariz. 560, 565 ¶ 15, 242 P.3d 159, 164 (2010).

¶56 To show a murder was especially cruel under A.R.S. § 13-751(F)(6),

the State must prove beyond a reasonable doubt that the defendant

intended or anticipated that the victim suffer either physical pain or

mental distress. Ellison, 213 Ariz. at 141–42 ¶ 119, 140 P.3d at 924–25.

Mental distress is established if the victim either “experienced significant

uncertainty as to her ultimate fate . . . or if the victim was aware of a loved

one’s suffering.” Id. at 142 ¶ 120, 140 P.3d at 925 (internal citations

omitted). Here, both types of mental distress are present.

1. Uncertainty as to One’s Fate

¶57 Hernandez’s incorrectly asserts that “there is no indication in the

Record that Jeni suffered.” Hernandez used a pistol to force Jeni (and

Maria) into the house, where they heard Omar and Pablo screaming and

pleading not to be harmed. See State v. McCall, 139 Ariz. 147, 161, 677 P.2d

920, 934 (1983) (finding the victims suffered uncertainty as to their

ultimate fate, and thus mental anguish, where defendants herded victims

throughout their home at gunpoint). Hernandez bound Jeni’s hands

behind her back. See State v. Lynch, 225 Ariz. 27, 41 ¶ 79, 234 P.3d 595, 609

(2010) (finding mental anguish when conscious victim was bound to

chair). While bound, Jeni would have been uncertain as to her fate, see

State v. Bible, 175 Ariz. 549, 605, 858 P.2d 1152, 1208 (1993), and thus

suffered the requisite mental anguish necessary for the “especially cruel”

finding required by § 13-751(F)(6).

2. Aware of a Loved One’s Suffering

¶58 Mental distress can also be found when the victim is aware of a

loved one’s suffering. Ellison, 213 Ariz. at 142 ¶ 120, 140 P.3d at 925; see

also McCall, 139 Ariz. at 161, 677 P.2d at 934.

¶59 Hernandez argues the State did not prove mental distress because

Jeni was already dead before the others, and thus she was not “forced to

listen as [her] loved ones were shot one at a time.” But contrary evidence

was presented at trial.

¶60 Although Maria testified, “I heard shots in the other room, and

right away I noticed that they had already shot my friend, [Jeni],” she also

testified at length about hearing Omar and Pablo crying in Jeni’s bedroom

as she and Jeni walked toward another room in the house. According to
STATE V. HERNANDEZ

Opinion of the Court

16

Maria, both Omar and Pablo “were asking [Hernandez and his

accomplice] not to hurt them or the family, and each time they were

screaming louder and stronger.” Maria, and presumably Jeni, also heard a

strange sound coming from Jeni’s room that “led [her] to think that it was

something that they were giving electric shocks,” followed by more cries

from Omar and Pablo. Because Jeni was alive to hear Omar’s and Pablo’s

pleas, it is immaterial whether she was the first victim killed. Jeni heard

her loved ones’ pleas and endured mental distress because she was aware

of their suffering.

¶61 In sum, substantial evidence supporting the jury’s (F)(6) cruelty

finding that Jeni suffered mental anguish, both from the uncertainty as to

her fate and her awareness of Omar’s and Pablo’s suffering.

III. ABUSE OF DISCRETION REVIEW

¶62 Because Hernandez murdered Omar, Pablo, and Jeni after August

1, 2002, we review Hernandez’s death sentences only “to determine

whether the trier of fact abused its discretion in finding aggravating

circumstances and imposing a sentence of death.” A.R.S. § 13-756(A). A

finding of aggravating circumstances or the imposition of a death sentence

“is not an abuse of discretion if there is ‘any reasonable evidence in the

record to sustain it.’” State v. Manuel, 229 Ariz. 1, 9 ¶ 42, 270 P.3d 828, 836

(2011) (quoting State v. Morris, 215 Ariz. 324, 341 ¶ 77, 160 P.3d 203, 220

(2007)).

A. Aggravating Circumstances

¶63 For each murder the jury found four aggravating factors:

Hernandez had been previously convicted of a serious offense, A.R.S.

§ 13-751(F)(2); he committed the crime in an especially cruel manner, id.

§ 13-751(F)(6); he committed the offense while on authorized release from

the state department of corrections, id. § 13-751(F)(7)(a); and he was

convicted of one or more other murders that were committed during the

commission of the offense, id. § 13-751(F)(8).

¶64 Hernandez does not dispute the jury’s finding of the (F)(8)

aggravating circumstance, and the record fully supports that finding. For

the reasons set forth above, see supra ¶¶ 55–61, the jury’s finding of the

(F)(6) cruelty aggravator for the murder of Jeni is supported by substantial

evidence. The jury’s (F)(6) finding for the deaths of Omar and Pablo is

also supported by substantial evidence.
STATE V. HERNANDEZ

Opinion of the Court

17

1. (F)(2) Aggravator

¶65 Hernandez argues that his prior conviction for robbery/burglary,

which supported the jury’s (F)(2) finding, was a “non-violent offense” and

thus did not satisfy (F)(2)’s requirement of a “serious offense.” That

argument misses the mark because a serious offense need not be a violent

offense to support a finding of the (F)(2) aggravator. See A.R.S. § 13-

751(F)(2).

¶66 Before 1993, the (F)(2) aggravator applied when a “defendant was

previously convicted of a felony in the United States involving the use or

threat of violence on another person.” State v. McKinney, 185 Ariz. 567,

580 n.4, 917 P.2d 1214, 1227 n.4 (1996). The current version of the (F)(2)

aggravating circumstance, however, removed ambiguities created by “the

prior version’s more vague reference to crimes involving ‘violence.’” State

v. Martinez, 196 Ariz. 451, 461 ¶ 41, 999 P.2d 795, 805 (2000). By

substituting “serious offense,” the legislature intended to broaden the

scope of the (F)(2) aggravator to encompass prior serious convictions not

solely limited to crimes of violence.

¶67 Armed robbery/burglary is a “serious offense” for purposes of

§ 13-751(F)(2). See A.R.S. § 13-751(J)(8)–(9); State v. Johnson, 212 Ariz. 425,

438 ¶ 50, 133 P.3d 735, 748 (2006) (“A serious offense includes armed

robbery.”). The jury did not abuse its discretion by finding the (F)(2)

aggravator.

2. (F)(7)(a) Aggravator

¶68 Hernandez also contends that the (F)(7)(a) aggravator should not

apply because it “just means [that the] defendant was a recidivist, which

constitutes the majority of non-capital felons.” But this Court rejected this

argument in State v. Gretzler, 135 Ariz. 42, 57 n.2, 659 P.2d 1, 16 n.2 (1983).

The State introduced uncontroverted evidence that Hernandez was on

authorized release from prison at the time of the offense. The jury did not

abuse its discretion in finding the (F)(7)(a) aggravator.

B. Mitigating Circumstances

¶69 A defendant may present any information relevant to any

mitigation during the penalty phase, but has the burden to prove any

mitigating circumstance by a preponderance of evidence. See A.R.S. § 13-

751(C).

¶70 Hernandez presented evidence that he suffered from “traumatic
STATE V. HERNANDEZ

Opinion of the Court

18

brain injury” rendering him less able to control aggressive impulses. But

the State countered with expert testimony that Hernandez’s experts

utilized outdated methodology in their brain imaging, and that even

though Hernandez may suffer from antisocial personality disorder, the

disorder did not affect his ability to control his actions.

¶71 In his allocution, Hernandez discussed his difficult childhood and a

family history burdened by limited resources, alcohol, and abuse.

Nevertheless, a juror could afford little mitigating weight to Hernandez’s

childhood because he was thirty-two years old when he killed Omar,

Pablo, and Jeni. See Nelson, 229 Ariz. at 191 ¶ 53, 273 P.3d at 643 (finding

the childhood mitigating factor of little consequence because the

defendant was thirty-five at the time of the murder).

¶72 Hernandez also explained his motive for the murders, some

criminal history, as well as his religious experiences and conversion.

Although these may constitute non-statutory mitigating circumstances, see

State v. Gallegos, 178 Ariz. 1, 19, 870 P.2d 1097, 1115 (1994), each juror has

discretion to determine how much mitigating weight to give them, Nelson,

229 Ariz. at 191 ¶ 54, 273 P.3d at 643.

¶73 The jury found four aggravators for each of the three murders —

including an aggravator for multiple murders. Even if we assume that

Hernandez sufficiently proved his alleged mitigating circumstances, we

cannot say the jury abused its discretion by determining that the

mitigation was not “sufficiently substantial to call for leniency” under

A.R.S. § 13-751(E).

IV. CONCLUSION

¶74 We affirm Hernandez’s convictions and sentences.

5

5 Hernandez also lists eighteen constitutional claims, along with

prior decisions he identifies as rejecting them, which he states he seeks to

preserve for federal review. We decline to revisit these claims.