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State of Arizona v Manuel

Case No. CR-09-0253-AP (AZ S.Ct., Dec. 21, 2011)

This automatic appeal arises from Jahmari Ali Manuel’s conviction and death sentence for murdering Darrell Willeford. We have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 13-4031 (2011).


In March 2004, Manuel walked into a Phoenix pawn shop carrying a pistol covered with a blue plastic bag and immediately began firing at Willeford, the shop owner, who fell to the floor behind a counter. Manuel walked around the counter and continued firing, ultimately shooting Willeford ten times. Manuel then took two guns from the shop. The pawn shop’s surveillance camera recorded these events. At the crime scene, police recovered the plastic bag, which contained shell casings and DNA that was later matched to Manuel’s DNA profile. In October 2004, police arrested Manuel at a North Carolina hotel.

Manuel was indicted for first degree murder, first degree burglary, armed robbery, and misconduct involving weapons. After finding Manuel guilty on all counts, the jury found one aggravating factor, pecuniary gain, see A.R.S. § 13- 751(F)(5) (2011), and determined that Manuel should be sentenced to death for the murder.


Judge(s): W. Scott Bales
Jurisdiction: Arizona Supreme Court
Related Categories: Constitutional Law
Supreme Court Judge(s)
Scott Bales
Rebecca Berch
Robert Brutinel
Andrew Hurwitz
John Pelander

Trial Court Judge(s)
Susan Brnovich

Appellant Lawyer(s) Appellant Law Firm(s)
Stephen Johnson

Appellee Lawyer(s) Appellee Law Firm(s)
Kent Cattani Office of the Arizona Attorney General
Thomas Horne Office of the Arizona Attorney General
John Todd Office of the Arizona Attorney General



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eighth, and fourteenth amendments to the united states lynn v. reinstein, 205 ariz. 186, 191, 68 p.3d 412, 417 (2003). criminal procedure 10.2. we review de novo the trial court's misconduct at trial by making argumentative comments and asking weapons. after finding manuel guilty on all counts, the jury 8. a.r.s. 13-703 provides no objective standards to guide one before the state filed its notice of intent to seek the 19. arizona's death statute creates an unconstitutional findings as to each mitigating factor. state v. gulbrandson, 570 47, 242 p.3d at 169 (reaching similar conclusion regarding the class of persons eligible for the death penalty and the prosecutor here did not suggest, as did the prosecutor in ) p.3d 231, 249-50 (2003) (dann i). circumstances and therefore violates the eighth and fourteenth filed its notice of intent to seek the death penalty in february 24 crime, he had been incarcerated several times previously, and he thing in case after case, state to state" was not supported by state v. fisher, 226 ariz. 563, 565-66 8-9, 12-13, 250 p.3d 7 manuel was arraigned in december 2004 and the state their cumulative effect. id. 47. attack the expert with non-evidence, using irrelevant, insulting that evidence did not come from the attorneys and that the officer in believing that the area to be swept harbors 20. the introduction of victim impact evidence is improper 1 this automatic appeal arises from jahmari ali manuel's prosecution to do so given the subject matter of his testimony. arizona constitution. state v. hinchey, 181 ariz. 307, 315, 890 3. application of the death penalty on the facts of this case b a l e s, justice 1. the death penalty is cruel and unusual under any ) evaluating the mitigation evidence and determining whether to 9 manuel contends that the prosecutor committed misconduct by of change of judge. the notice was not filed within ten days if anyone else was inside who might pose a threat. the hotel thomas c. horne, arizona attorney general phoenix closing did not constitute fundamental error). risk of violent behavior in prison. in response to defense her discretion in denying manuel's motion for new trial. impartial juror, and he had not consumed any alcohol during amendments to the united states constitution and article 2, interpretation of the rule. see pima cnty. v. pima cnty. law that the area harbors someone who could pose a safety threat. protective sweeps: one involving the area "immediately adjacent" prosecutor's questions about cunningham's compensation from 12 question. discussion ariz. 351, 363 50, 207 p.3d 604, 616 (2009) (noting, in trial court properly instructed the jury that the state had to trial resumed after labor day, the witness continued his 10 manuel argues that the trial court erred in denying police also learned that manuel had two outstanding warrants for ________________________________________________________________ phoenix murder. while they were completing the arrest in the states constitution and article 2, 15 of the arizona 32 manuel has not shown that the prosecutor's remarks 242, 609 p.2d 48, 57 (1980). fabricate a diagnosis. moreover, the jury was instructed that 10. a.r.s. 13-703 does not sufficiently channel the 13 other officers promptly conducted a sweep of the hotel an attack could be immediately launched. beyond that, _____________________________________ support." state v. velazquez, 216 ariz. 300, 311 48, 166 p.3d attorneys for state of arizona because a defendant does not receive pretrial notice or an 40 we review a trial court's decision to grant or deny a within ten days of the reassignment, manuel filed a notice of imposition of the death penalty whenever at least one the box spring, through the mesh fabric on the bottom. because difficult to substitute judges. moreover, the prior version of deliberations, a juror asked in writing if the jury could witnesses by showing that they earn their income by testifying discretion. state v. jones, 185 ariz. 471, 484, 917 p.2d 200, closing argument). doing so here was within the permissible scope of a buie sweep. police recovered the plastic bag, which contained shell casings broad scope of arizona's aggravating factors encompasses nearly seek the death penalty." ariz. r. crim. p. 10.2(a) (2009) and continued firing, ultimately shooting willeford ten times. judge. at the time of manuel's trial, rule 10.2(a) provided discretion in denying manuel's motion for a new trial based on cumulatively. the record does not reflect pervasive misconduct disregarded questions to which objections were sustained. 37 manuel argues that a juror was intoxicated during at hysterically. officers placed her in handcuffs and removed her the norm" of first-degree murder thus narrowing the class of 42 because the murder occurred after august 1, 2002, this suspicion, and a second involving other areas, which requires a fails to require the cumulative consideration of multiple 16 citing arizona v. gant, 129 s. ct. 1710 (2009), manuel distance of the vehicle or it is reasonable to believe the we have jurisdiction under article 6, section 5(3) of the factors" that impair one's ability to make good decisions and 21 viewed in the light most favorable to upholding the appropriate sentence will not be reversed "so long as any p.2d at 167. the prosecutor's remarks were improper in certain jeopardy clause of the fifth amendment. state v ring, 204 ariz. answering jury questions for an abuse of discretion. state v. 867). was incident to manuel's arrest. without reaching the consent constitution and article 2, 4 and 15 of the arizona arizona constitution, as well as manuel's right to due process that inmates with manuel's characteristics have a relatively low arrested and d.j. was detained. cf. united states v. thomas, arizona constitution. state v. harrod, 200 ariz. 309, 320, 26 expert in a capital case, noting that he would not expect the have a beer over lunch, but he did not believe his consumption screened for probable cause. arizona's failure to require this remedy for trial error and should only be granted if justice room. while another officer covered with a rifle, officer 35 we review a trial court's rulings with respect to permitting manuel's counsel to repeat any testimony that was 19 the search of manuel's hotel room was justified under juror has consumed alcohol during a capital trial. cf. united hallway outside the room, d.j. came to the doorway, screaming finding. before the murder, manuel had asked d.j. to go into police could sweep the room even without reasonable suspicion andrew d. hurwitz, vice chief justice 39 after the jury returned its penalty-phase verdict, that death is appropriate if any "reasonable juror could and dna that was later matched to manuel's dna profile. in d.j. testified that manuel was "broke" and might have needed to the united states constitution and article 2, 15 of the (2009). prosecutorial misconduct are evaluated both separately and for after the state filed its notice of intent to seek the death particular incident might have caused prejudice. we again ariz. 158, 161 9, 76 p.3d 429, 432 (2003). possibly after lunch on september 3. on that occasion, the staying with his girlfriend, d.j., at a charlotte hotel. the 54, 70-71, 107 p.3d 900, 916-917 (2005). the room radioed hetrick and told him they could see a gun in vacated and remanded on other grounds, 536 u.s. 954 (2002). death is not appropriate . . . the court shall determine whether the lawyer's comments were not evidence. see state v. under the fifth and fourteenth amendments to the united states mitigating factors or require that the jury make specific agreed that the judge should answer "no." after further and the decisions manuel identifies as rejecting them. w. scott bales, justice ________________________________________________________________ aggravation and punishment before a new jury violates the double manuel then took two guns from the shop. the pawn shop's p.2d 602, 610 (1994). (concluding that gant does not disturb other exceptions to opening statements. see state v. bowie, 119 ariz. 336, 340, 580 34 manuel argues that the trial judge incorrectly proportionality review serves to identify which cases are "above never by the prosecution because he was biased. the prosecutor did not establish a strong causal relationship between the the eighth and fourteenth amendments to the united states u.s. 431, 441-42 (1984). 42 to avoid preclusion, manuel raises twenty-two 751(f)(5) (2011), and determined that manuel should be sentenced note saying he thought juror 9 was drunk. after about twenty 5 manuel argues that the trial court erred in denying ten (10) days after the state files a notice of intention to fourteenth amendments. state v. dann, 205 ariz. 557, 575-76, 74 this evidence was extensive, a reasonable juror could conclude trial court's ruling, the record indicates that when officer 11. execution by lethal injection is cruel and unusual 5. aggravating factors under a.r.s. 13-703(f) are elements 6 answered a juror's question in the penalty phase. during 21. the trial court improperly omitted penalty phase hetrick went to the room and retrieved the pistol. admonished the entire jury not to consume alcoholic beverages gallardo, 225 ariz. at 568-70 36-45, 242 p.2d at 167-69 534, 550, 65 p.3d 915, 931 (2003) (ring iii). cross-examined several witnesses during the penalty phase, reasonable belief, supported by specific and articulable facts, 23 the defendant," and "a bias of $600,000." to request a change of judge as a matter of right no later than rebecca white berch, chief justice 18 the trier of fact abused its discretion in finding aggravating police are authorized to search a vehicle incident to the arrest a home, may conduct a warrantless, protective sweep: "a quick the defendant must show that the misconduct "so infected the party of the assignment of the case to a judge" if a notice had new trial based on alleged juror misconduct for an abuse of 25 manuel also argues that the prosecutor improperly a. john pelander, justice may cross-examine an expert witness regarding payment for judge than a non-capital defendant. these arguments are not "[i]t is improper [for a prosecutor] to imply unethical conduct manuel also do not warrant reversal when considered arizona constitution and a.r.s. 13-4031 (2011). on this issue. cf. ariz. r. crim. p. 23.2(f) (providing that 11 we review the denial of a motion to suppress for an call for leniency." state v. glassel, 211 ariz. 33, 52, 116 immediately began firing at willeford, the shop owner, who fell that someone was inside. cf. fisher, 226 ariz. at 567 15, 250 respects. he misstated the testimony about cunningham's annual article 2, 15 of the arizona constitution. pandeli, 200 ariz. notice of change of judge could be filed "in a non-death penalty contends that a search incident to a lawful arrest is limited to officers forced manuel to the floor and handcuffed him when he (concluding death sentence was not abuse of discretion when jury he was being paid. ) no. cr2004-022846-001 lethal injection constitute cruel and unusual punishment in from the scene while other officers swept the room to determine united states v. green, 599 f.3d 360, 376 (4th cir. 2010) (2004), and state v. hughes, 193 ariz. 72, 969 p.2d 1184 (1998), impoverished males whose victims have been caucasian. state v. constitution. harrod, 200 ariz. at 320, 26 p.3d at 503. inside to determine who was present. manuel entered the shop doubt that the aggravating circumstances outweigh the (noting jury instruction in concluding that improper comments in 22 manuel argues that the prosecutor engaged in g. issues preserved for federal review jury." state v. roque, 213 ariz. 193, 229 161, 141 p.3d 368, 10 statements to which objections were sustained. 555, 558, 875 p.2d 788, 791 (1994)) (alterations in original). appendix has reached conclusions merely for pecuniary gain. the trial "at the conclusion of the penalty hearing, the jury shall render _____________________________________ the bed to see if anyone was under it. when balamucki did so, lifting its mattress and box spring, and we conclude that their circumstances and violates the eighth and fourteenth amendments recommendation. the trial judge responded "no" to the juror's protective sweep"). the police testified that, because of facilitate the robbery. manuel then took two pistols from the expert work were not improper. cf. state v. mauro, 159 ariz. of the arizona constitution. state v. pandeli, 200 ariz. 365, only evidence presented by testimony or exhibits, that the e. juror misconduct 16 see zawada, 208 ariz. at 237 16, 92 p.3d at 867; hughes, 193 under the sixth and fourteenth amendments to the united states most favorable to sustaining the ruling, state v. dean, 206 state v. beaty, 158 ariz. 232, 762 p.2d 519 (1988). of a recent occupant "when an arrestee is within reaching (2) there is a reasonable likelihood that the misconduct could although the prosecutor did make some argumentative comments, auto theft. a swat team was dispatched to the hotel, where 26 citing in re zawada, 208 ariz. 232, 92 p.3d 862 united states constitution and article 2, 15 of the arizona 28 cunningham, a clinical psychologist, testified on capital case, that declaration of mistrial is most dramatic 242 p.3d 159, 167 (2010), cert. denied, 131 s. ct. 1796 (2011). the defense shows actual prejudice or if prejudice may be fairly fourteenth amendments to the united states constitution and 1192, 1194-95 (2011). pawn shop. the jury could reasonably conclude that pecuniary plain view, the trial court did not err in denying the motion to _____________________________________ it does not require the sentencer to find beyond a reasonable testimony and defense counsel repeated some matters covered the ) no. cr-09-0253-ap caused prejudice sufficient to constitute fundamental error. committed misconduct by, among other things, suggesting, without this misconduct. facts and procedural background jurors are presumed to follow the court's instructions. state ) o p i n i o n to the united states constitution and article 2, 15 of the testimony given by a defense witness after lunch. when the penalty. see a.r.s. 13-751(c); see also gallardo, 225 ariz. _____________________________________ suppress. trial, the pistol was admitted into evidence and an expert given in the twenty minutes after lunch. under jones, manuel state v. ellison, 213 ariz. 116, 139, 140 p.3d 899, 922 (2006). v. newell, 212 ariz. 389, 403 68, 132 p.3d 833, 847 (2006). the honorable susan m. brnovich, judge bias, but no objection was made. circumstances and imposing a sentence of death." a.r.s. 13- the sentencer in weighing the aggravating and mitigating that "[i]n any death penalty case, any party shall be entitled to impose a sentence of life or natural life." a.r.s. 13- that the expert had been hired 142 times by the defense and 15 manuel argues that the trial court erred in finding to death for the murder. is improper for a prosecutor to intimate that a defense expert kuhs, 223 ariz. 376, 384 42, 224 p.3d 192, 200, cert. denied, 382, 26 p.3d 1136, 1153 (2001). 4. the prosecutor's discretion to seek the death penalty has outstanding felony warrants and was possibly involved in a income and his assertion that cunningham had "done the same on september 3, the last trial day before labor day weekend. constitution and article 2, 1, 4, and 15 of the arizona at lunch did not participate in the jury's deliberations. 2 affirmed substantial to call for leniency" violated the eighth amendment. id. at 334. john pressley todd, assistant attorney general during juror hours and recessed the trial for the weekend. the murder and not merely the result of the murder. see state whether they lawfully discovered the pistol while conducting immediately adjoining the place of arrest from which consideration, manuel's counsel changed his position and by kent e. cattani, chief counsel federal review. this appendix lists his claims and the decisions the suppression hearing, state v. spears, 184 ariz. 277, 284, 41 manuel presented evidence about his troubled childhood surveillance camera recorded these events. at the crime scene, the box spring. hetrick then asked d.j. if the police could that the mitigation was not sufficiently substantial to call for 184 ariz. 46, 69, 906 p.2d 579, 602 (1995). supreme court of arizona judge repeatedly instructed the jury that it should consider which, taken together with the rational inferences alternate juror admitted drinking a shot of whiskey. the judge instructions, manuel has failed to establish prejudice. cf. the length and complexity of capital cases make it more of capital murder and must be alleged in an indictment and (holding, in non-capital case, the juror's consuming alcohol emerged from his second floor room. as manuel was being call for leniency." id. 81. over defense counsel's objections, the prosecutor elicited that (emphasis added). in contrast, rule 10.2(c) provided that a 414, 416 11, 215 p.3d 388, 390 (app. 2009). and although 68, 181 p.3d 196, 210 (2008) (quoting state v. miller, 178 ariz. cunningham's testimony on various grounds, including by arguing 11 penalty is appropriate. failure to require this proof violates arrested, d.j. came to the room's doorway, hysterical and verdict must be determined only by reference to the evidence."). b. denial of motion to suppress evidence 20 because the police were authorized under buie to comments in closing argument, so we review them only for a. denial of motion for change of judge 29 the prosecutor vigorously cross-examined cunningham. 40 after the jury finds one or more aggravating factors, from work on both capital and non-capital cases. the when the trial resumed, defense counsel could repeat the both on d.j.'s consent and as incident to manuel's arrest. at issues, we conclude that the warrantless sweep of the room was an abuse of discretion if there is "any reasonable evidence in at 382, 26 p.3d at 1153. downstairs by detective hetrick and officer white. a verdict determining whether to impose a sentence of death"). judge informed counsel of the question, and both sides initially consideration for the receipt, or in expectation of the receipt, penalty and thus was untimely under rule 10.2(a). work on capital cases, that his total income was about $400,000, the fifth, eighth, and fourteenth amendments to the united 15 enforcement merit sys. council, 211 ariz. 224, 227 13, 119 leniency. manuel was thirty-two years old at the time of the id.; see also meister v. state, 933 n.e.2d 875, 878 (ind. 2010) change of judge, which the trial court denied as untimely. when the trial resumed after lunch, a juror gave the bailiff a concurring: at 570 51, 242 p.3d at 169. we will uphold a jury's decision ) maricopa county holding does not affect other recognized exceptions to the denying manuel's motion for a new trial, the judge ruled that, ariz. at 86 61, 969 p.2d at 1198. these cases recognize accumulated mitigating circumstances, in violation of the fifth, the pawn shop and attempt to pawn a chain he had given her. 429 f.3d 282, 287 (d.c. cir. 2005) (upholding sweep of bedroom a capital defendant should have less opportunity to change a juror hours after the judge's admonishment. the trial court v. ) superior court 18 as we recently explained, buie authorizes two types of the record to sustain it." morris, 215 ariz. at 341 77, 160 has waived any constitutional argument against the rule's criminal appeals/capital litigation section 17 testimony becomes predictable." later the prosecutor argued on the part of an expert witness in the absence of evidentiary how his execution would impact his extended family. although f. review of the death sentence 17. subjecting appellant to a second trial on the issue of 131 s. ct. 228 (2010). indicate that juror 9 was intoxicated during trial except 8 manuel argues that the trial court should have granted 7. arizona's capital sentencing scheme is unconstitutional each juror must determine whether death is the appropriate amendments of the united states constitution and article 2, 15 presume that the jury followed the court's instructions and 46, 160 p.3d 203, 214 (2007). alleged instances of an individual posing a danger to those on the arrest manuel raises twenty-two issues to preserve them for 31 defense counsel did not object to the prosecutor's a capital case could be more disruptive administratively because abuse of discretion, considering only the evidence presented at appeal from the superior court in maricopa county death penalty and one after. see campbell v. barton, 222 ariz. he identifies as rejecting them. aggravating circumstance and no mitigating circumstances exist, money for gas. the jury also could infer that he had sent d.j. at 1198). we have also cautioned that "a prosecutor cannot denied the renewed motion for a new trial. counsel's questions, cunningham said that he had worked about reasonable suspicion, look in closets and other spaces expert to fabricate a diagnosis of insanity for the defendant. the area under the arrestee's immediate control. under gant, 908 p.2d 1062, 1069 (1996), and viewing the facts in the light (2004). recently, although not mandating aggravators to be andriano, 215 ariz. 497, 510, 161 p.3d 540, 553 (2007). criminal procedure to have the aggravators screened for probable 752(a) (2011). because the court is assigned the responsibility gain was a motive, cause, or impetus for the murder. 17 buie recognized that police, incident to an arrest in the sentencing phase, and ignored sustained objections. 186, 199, 766 p.2d 59, 72 (1988) (acknowledging that an attorney receive, a defendant is not entitled to a jury's recommendation might be hiding." 494 u.s. at 327. the supreme court noted: 1. aggravating circumstances the record. the prosecutor's comments about cunningham's bias and limited search of the premises . . . conducted to protect appellant to prove mitigation is "sufficiently substantial to see state v. nirschel, 155 ariz. 206, 208, 745 p.2d 953, 955 p.3d at 220. the jury's determination that death is the 14 13. arizona's death penalty unconstitutionally requires 7 compensation last year doing this same thing in case after case, presumption of death and places an unconstitutional burden on was amended to eliminate the distinction between capital and the first buie exception. the police knew that manuel had state to state . . . . that is bias. for $600,000 one's judge appropriately responded by recessing the trial for the degree burglary, armed robbery, and misconduct involving of anything of pecuniary value, see a.r.s. 13-751(f)(5). the constitution and article 2, 4 of the arizona constitution. denial of a new trial. 185 ariz. at 484, 917 p.2d at 213. constitution. state v. poyson, 198 ariz. 70, 83, 7 p.3d 79, 92 substantial to call for leniency." id. 52. balamucki lifted the mattress and box spring up from the foot of alleged misconduct in penalty phase opening statement and that cunningham's work reflected "total extreme bias in favor of lawful under maryland v. buie, 494 u.s. 325 (1990). responding "no" to the juror's question. cause. see chronis v. steinle, 220 ariz. 559, 208 p.3d 210 court's "dignity or integrity" and there is "no logical reason" room was immediately adjacent to the place where manuel was additional constitutional claims that he states have been arizona courts denies capital defendants due process of law and violation of the fifth, eighth, and fourteenth amendments to the p.2d 1190, 1194 (1978) ("any possible prejudice from the opening precautionary matter and without probable cause or 41 despite manuel's assertions, the record does not 2. the death penalty is imposed arbitrarily and irrationally ethical limits on a prosecutor's questioning of defense experts. ) screaming, "don't hurt him." she was handcuffed and taken rule 10.2 allowed a capital defendant two peremptory changes: pistol had fired bullet casings found at the murder scene. presumed from the facts." state v. cruz, 218 ariz. 149, 163 vehicle contains evidence of the offense of arrest." 129 s. ct. 19 not earlier been filed. (effective january 1, 2011, rule 10.2 v. sansing, 200 ariz. 347, 353 12, 26 p.3d 1118, 1124 (2001), united states constitution and article 2, 15 of the arizona appellee, ) constitution. state v. miles, 186 ariz. 10, 19, 918 p.2d 1028, (2000). however, we hold that there must be articulable facts of his right to a jury trial and due process under the sixth and must show that "the misconduct was prejudicial or that prejudice fabric covering the bottom of the box spring. the officers in no standards and therefore violates the eighth and fourteenth because not supported by reasonable suspicion that others were firing his weapon, suggesting that he committed the murder to 4 213 (1996). "[j]uror misconduct warrants a new trial [only] if statement was overcome by the court's cautionary instructions violation of the eighth and fourteenth amendments. state v. west, 176 ariz. 432, 455, 862 p.2d 192, 215 (1993). reasonably justify the imposition of a harsher penalty. the 33 the instances of alleged misconduct identified by p.3d 1193, 1212 (2005). reasonable jury could have concluded that the mitigation conduct a protective sweep of the room, the question becomes conclusion warrant requirement for vehicle searches). 18. the reasonable doubt jury instruction at the aggravation prove that pecuniary gain was a motive, cause, or impetus for cross-examined manuel and d.j., manuel does not identify how any prosecutor's comments regarding cunningham's compensation and also were problematic. counsel may attempt to impeach expert weekend, admonishing the jury against consuming alcohol, and 22 trial with unfairness as to make the resulting conviction a (noting that "searching under beds is within the ambit of a ariz. 347, 361, 26 p.3d 1118, 1132 (2001). 9 the trial court did not err in denying manuel's notice his request for a change of judge pursuant to arizona rule of 3 manuel was indicted for first degree murder, first 21 court's rulings sustaining objections. moreover, the trial 38 the jury found that the murder was committed as instructions that the jury could consider mercy or sympathy in including d.j. and manuel. although the prosecutor aggressively lunch. juror 9 said that he had drunk a glass of bourbon; the disrespecting dr. cunningham, manuel's mitigation expert, and robert m. brutinel, justice was arrested. because the police had no warrant to search the states v. taliaferro, 558 f.2d 724, 726 (4th cir. 1977) fundamental error. see gallardo, 225 ariz. at 568 35, 242 to the place of arrest, which does not require reasonable anyone involved in a murder, in violation of the eighth and and irrationally and in a discriminatory manner against states supreme court. the attached appendix lists these claims 4 manuel raises six issues on appeal. for the reasons 9. arizona's death penalty scheme is unconstitutional because minutes of testimony, the judge excused the jury and questioned constitution. mckaney v. foreman, 209 ariz. 268, 100 p.3d 18 witness for the state testified that ballistics tests showed the court here might have properly sustained an objection to the 91, 102 (2007) (quoting hughes, 193 ariz. at 86 59, 969 p.2d 5 a fair trial. see state v. gallardo, 225 ariz. 560, 568 34, (finding improper statements not prejudicial). that d.j. legally consented to the search and that the search the safety of police officers or others" and "narrowly confined evidence, that defense counsel had paid money to a mental health in an apartment). asserted that cunningham had received over $600,000 "in 25 can be fairly presumed" to secure reversal of the trial court's evidence connecting mitigating evidence with the crime). constitution. consideration of that evidence. state v. mata, 125 ariz. 233, court found that defendants had a right under the rules of 13 that deprived him of a fair trial. cf. gallardo, 225 ariz. at zawada, that the expert had colluded with the defense to court must review manuel's death sentence to "determine whether 100 hours on this case for an hourly rate of $300. he also denial of due process." state v. morris, 215 ariz. 324, 335 38 during the penalty phase, the jury recessed for lunch in violation of the eighth and fourteenth amendments to the 22. the jury instruction requiring the jury to unanimously 756(a) (2011). a finding of an aggravating circumstance is not in light of this presumption and the trial judge's cautionary lawyers' statements were not evidence, and that it should ignore 14. a.r.s. 13-703, (now 13-751 et. seq.) unconstitutionally conviction and death sentence for murdering darrell willeford. 2 in march 2004, manuel walked into a phoenix pawn shop 12 based on an informant's tip, police in north carolina constitution. state v. ring, 200 ariz. 267, 284, 25 p.3d 1139, rejected in previous decisions by this court or the united case" within ten days after "actual notice to the requesting to the united states constitution and article 2, 15 of the 20 the trial court therefore did not abuse its discretion in 1156 (2001) (ring i), rev'd on other grounds by ring ii. 16. death sentences in arizona have been applied arbitrarily d. jury question jahmari ali manuel, ) witnesses improper questions. prosecutorial misconduct 6. the absence of proportionality review of death sentences by acknowledged that the prosecution had never called him as an equal protection and amounts to cruel and unusual punishment in testimony). hearing, juror 9 testified that it was not uncommon for him to 3 determine that the mitigating circumstances were "sufficiently 6 rule 10.2 grants the right to a peremptory change of 15. arizona's statutory scheme for considering mitigating evidence is unconstitutional because it limits full found one aggravating factor and defendant offered little or no preceding week. the alternate juror who acknowledged drinking state of arizona, ) arizona supreme court of alcohol interfered with his ability to be a fair and comments, particularly during the state's opening statements in c. prosecutorial misconduct 43 we affirm manuel's convictions and sentences. sentence the defendant to death. state v. carreon, 210 ariz. 12. arizona's current protocols and procedures for execution by found one aggravating factor, pecuniary gain, see a.r.s. 13- october 2004, police arrested manuel at a north carolina hotel. stephen m. johnson phoenix the record does not reflect that the prosecutor disregarded the consistently for one side. but absent evidentiary support, it 8 attorney for jahmari ali manuel hotel bed because a person could have been hiding there. see convincing. a peremptory change of judge in the later stages of in arizona in violation of the eighth and fourteenth amendments 27 in zawada and hughes, we held that a prosecutor had least one day of testimony and that the trial court abused its (1987). 39 sufficient evidence exists to support the jury's 36 "if the trier of fact determines that a sentence of such a sweep. buie permitted the officers to look under the maintained that the jury should be able to make such a although we do not condone juror 9's drinking, we decline to trial court found that the search of the room was lawful based he heard a "clunking" sound and could see a gun through the mesh of determining which type of life sentence a defendant should because it does not require that the state prove that the death manuel cites in passing certain constitutional provisions, he from those facts, would warrant a reasonably prudent recommend the type of life sentence it might impose. the trial mitigating circumstances and the murder. the jury did not abuse 1037 (1996). at 1721. the court in gant, however, recognized that its conclude that the mitigation presented was not sufficiently screened for probable cause on constitutional grounds, this explained below, we affirm his convictions and sentences. juror 9 and an alternate juror about their activities over direct that manuel had experienced many "adverse developmental adopt a per se rule mandating an immediate mistrial whenever a constitutes reversible error only if (1) misconduct exists, and search the room for "guns and drugs," and she said "go ahead." his motion to suppress a pistol found in his hotel room when he 2005. in june 2009, the case was reassigned to a new judge. would constitute cruel and unusual punishment in violation of 404 (2006) (quoting zawada, 208 ariz. at 237 14, 92 p.3d at established by the defendant was not sufficiently substantial to manuel renewed his motion for a new trial. at an evidentiary __________________________________) its discretion by determining that manuel should be sentenced to "fruit" of an unconstitutional search. see nix v. williams, 467 constitution and art. 2, 4 and 24 of the arizona non-capital cases.) 24 such cautionary instructions by the court generally p.3d 1027, 1030 (2005). to a cursory visual inspection of those places in which a person to the floor behind a counter. manuel walked around the counter trial lowered the state's burden of proof and deprived appellant opportunity to confront and cross-examine the victim witness. p.3d at 1196 (invalidating sweep under second buie exception 1, 4, and 15 of the arizona constitution. state v. sansing, 200 balamucki lifted the bed, he saw the gun, which had slid down appellant. ) and that $650,000 was "in the ball park" for his gross income room, manuel contends that the gun was inadmissible as the different treatment of capital defendants by not developing it. suggesting that cunningham reached his conclusions only because have affected the jury's verdict, thereby denying the defendant scene. [i]ncident to the arrest the officers could, as a velazquez, 216 ariz. 300, 312 50, 53, 166 p.3d 91, 103 (2007) warrant requirement, including the exception recognized in buie. safety concerns, their usual practice is to look under a bed by does not require new trial absent prejudice); state v. dann, 220 23 manuel contends that the prosecutor made argumentative 14 in denying manuel's motion to suppress the pistol, the cross-examination and baseless argument designed to mislead the punishment in violation of the eighth and fourteenth amendments 30 during closing arguments, the prosecutor criticized his notice of change of judge because it did not attack the will be thwarted absent a new trial). the judge did not abuse death. cf. cruz, 218 ariz. at 170-71 138, 181 p.3d at 217-18 _____________________________________ violates a defendant's right to due process and a fair trial he was entitled to lift up the bed and discovered the gun in and family history, his behavior during past incarcerations, and sentencer's discretion. aggravating circumstances should narrow 2. mitigating circumstances cunningham and his wife earned about $200-300,000 annually from en banc adjacent to living room where arrest occurred). thus, the cure any possible prejudice from argumentative comments during learned that manuel was a suspect in a phoenix murder and was defendants who are eligible for the death penalty. carrying a pistol covered with a blue plastic bag and p.3d 492, 503 (2001).

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