State v. Zuleger

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

RANDY STEVEN ZULEGER, Appellant.

No. 1 CA-CR 19-0288
FILED 6-9-2020

Appeal from the Superior Court in Maricopa County
No. CR2016-156429-001
The Honorable Erin O’Brien Otis, Judge (Retired)

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael T. O’Toole
Counsel for Appellee

Maricopa County Legal Advocate’s Office, Phoenix
By Grace M. Guisewite
Counsel for Appellant
 STATE v. ZULEGER
Decision of the Court

MEMORANDUM DECISION

Judge David B. Gass delivered the decision of the Court, in which Presiding
Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.

G A S S, Judge:

¶1 Randy Zuleger appeals his conviction for first-degree murder,
contending the superior court erroneously excluded evidence bearing on
premeditation and the prosecutor committed misconduct during closing
arguments. Because the superior court correctly excluded the evidence and
the prosecutor’s challenged remarks did not amount to reversible
misconduct, this court affirms Zuleger’s conviction.

FACTUAL AND PROCEDURAL HISTORY

¶2 This court reviews the facts in the light most favorable to
sustaining the jury’s verdict, resolving all reasonable inferences against
Zuleger. See State v. Felix, 237 Ariz. 280, 283, ¶ 2 (App. 2015). This court does
not weigh the evidence or assess witness credibility, because those are jury
functions. See State v. Williams, 209 Ariz. 228, 231, ¶ 6 (App. 2004); State v.
Salman, 182 Ariz. 359, 361 (App. 1994).

¶3 In December 2016, Zuleger killed his father, E.Z., by stabbing
him multiple times with two knives. Zuleger’s mother, C.Z., received a
deep laceration to her hand when she tried to intervene. The State charged
Zuleger with the premeditated, first-degree murder of E.Z. and the
aggravated assault of C.Z. The fact Zuleger killed E.Z. was undisputed. The
principal issue at trial was whether he premeditated the murder.

¶4 Zuleger lived with E.Z. and C.Z. for most of his life. In 2016,
he moved into an RV parked on their property but continued to shower,
eat, and watch television in the house. The day before the murder,
neighbors heard Zuleger shout “f--- you, old man” to E.Z. and yell toward
the house while pacing on the back patio. E.Z. called the police, who came
to the house but did not make an arrest. After the officers left, E.Z. told
Zuleger they were going to lock the back door to the house, which they did
not normally do.

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¶5 On the morning of the murder, E.Z. and C.Z. were in their
bedroom when they heard the back door open. E.Z. went to check, telling
C.Z. it was Zuleger and “[h]e seemed fine.” Less than a minute later, they
heard Zuleger make an “awful scream.” E.Z. went into the hallway, and
Zuleger pushed him to the ground. As he rose, E.Z. told C.Z. to “[c]all the
police.”

¶6 C.Z. went into the family room to use the phone and E.Z.
followed her. C.Z. could see Zuleger in the kitchen. Zuleger moved toward
E.Z. with a knife in each hand, and C.Z. heard E.Z. say, “Randy, you
stabbed me.” The two men moved into the living room, where Zuleger
brought E.Z. to the ground. In an attempt to stop Zuleger, C.Z. grabbed the
blade end of one of the knives Zuleger was holding, cutting herself in the
process. She then ran to the kitchen where she called 911. C.Z. could see
Zuleger stabbing E.Z. In the background of the 911 recording, Zuleger’s
voice can be heard saying “f--- you” and “asshole” repeatedly, as well as
heavy grunting and breathing.

¶7 At his trial, Zuleger said he and E.Z. got into an argument in
the kitchen when E.Z. punched him in the eye and they each picked up a
knife. Zuleger then walked into the living room where E.Z. tackled him.
Zuleger said he stabbed E.Z. in self-defense as they fought. Zuleger also
said C.Z. was not present during the fight, it was not his voice on the 911
call, and C.Z. must have cut herself by picking up one of the knives after
the fight.

¶8 The jury found Zuleger guilty on both counts. The superior
court sentenced him to concurrent prison terms of natural life for the
murder conviction and six years for the aggravated assault. Zuleger timely
appealed the murder conviction. This court has jurisdiction pursuant to
Article 6, Section 9 of the Arizona Constitution, and A.R.S. §§ 12-120.21.A.1,
13-4031, and 13-4032.A.1.

ANALYSIS

I. The superior court appropriately excluded evidence showing
Zuleger had mental health problems to prove a character trait for
impulsive behavior.

¶9 Zuleger suffers from mental health issues but did not claim
insanity as a defense. Before and throughout the course of trial, the parties
litigated the extent to which Zuleger could offer evidence related to his
mental health to rebut premeditation. On appeal, Zuleger argues the
superior court erroneously excluded evidence critical to his defense. This

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court reviews rulings on admission of evidence for an abuse of discretion
but considers issues of law related to admissibility de novo. State v. Leteve, 237 Ariz. 516, 523, ¶ 18 (2015).

¶10 Absent an insanity defense, Arizona bars defendants from
offering evidence suggesting a mental disorder prevented them from
forming the mens rea element of a charged offense. See State v. Mott, 187 Ariz.
536, 539–45 (1997). Premeditation is an element of first-degree murder
under paragraph 13-1105.A.1 and therefore part of the mens rea of the
offense.1 See State v. Boyston, 231 Ariz. 539, 549, ¶ 50 (2013).

¶11 “Using mental disease or defect evidence to refute the mens
rea element of a crime is commonly referred to as a ‘diminished capacity’ or
‘diminished responsibility’ defense.” State v. Malone, 247 Ariz. 29, 31, ¶ 9
(2019) (italics added). A defendant charged with first-degree murder,
therefore, may not offer diminished capacity evidence short of insanity to
negate premeditation.

¶12 This prohibition, however, does not preclude a defendant
charged with first-degree murder from challenging premeditation by
offering “behavioral-tendency evidence.” See id. at 32, ¶ 11. Behavioral-
tendency is evidence the defendant had a “character trait” or “behavioral
tendencies” for acting “impulsively” or without reflection. See id. at 31-32,
¶¶ 10-11; see also Ariz. R. Evid. 404(a)(1) (defendant may offer evidence of
pertinent character trait to show action in conformity), 405 (methods of
proving character trait).

¶13 The superior court allowed Zuleger to question both C.Z. and
his sister-in-law on whether they had seen him act impulsively or
unpredictably, and to describe some of those instances. Zuleger’s sister-in-
law testified about a time she heard him yelling while he was alone in his
room. C.Z. testified she also had heard Zuleger scream for no apparent
reason. C.Z. further described how Zuleger’s behavior and demeanor could
change quickly from one moment to the next, and his bizarre attempts to
get fired from jobs.

¶14 The superior court prohibited Zuleger from offering the
following evidence: (1) testimony of family members about instances when

1 Arizona defines “premeditation” as acting with the intent or knowledge

to “kill another human being, when such intention or knowledge precedes
the killing by any length of time to permit reflection.” See A.R.S. § 13-1101.1.
(emphasis added).

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Zuleger tore up the house, did not eat for days, and expressed concern
people had planted bombs in his residence and replaced his money with
fake money; (2) he was involuntarily committed to a mental health facility
several months before the murder; (3) his parents called law enforcement
the day before the murder because they wanted him taken to a mental
health facility; (4) when he was apprehended after the murder, he falsely
told an officer he was on PCP; and (5) when he was brought to the station
after being arrested, he said he had immunity and had received a pardon
for the killing. The superior court also declined to ask C.Z. a juror question
about whether Zuleger was “ever diagnosed or treated for [a] mental
disorder.”

¶15 This court discerns no error in the superior court’s exclusion
of the evidence described above. Zuleger’s unusual statements and
behavior before and after the murder show paranoid and delusional
beliefs—not a tendency to act without reflection. Neither does Zuleger’s
previous commitment to a mental health facility, nor his parents’ desire for
him to be committed again, show he tended to act reflexively or
impulsively. To the extent Zuleger’s parents sought to get him treatment
because he exhibited impulsive behavior, the superior court permitted
Zuleger’s family members to testify about the behavior.

¶16 Zuleger contends the excluded evidence was admissible
“observation evidence.” See Clark v. Arizona, 548 U.S. 735 (2006). In Clark,
the United States Supreme Court interpreted Mott as prohibiting—in the
absence of an insanity defense—professional, usually expert, opinion
evidence regarding the defendant’s ability to form the requisite mens rea of
an offense. See 548 U.S. at 758–60. Clark held Mott’s prohibition on “mental-
disease evidence” and “capacity evidence” did not violate due process. See
id. at 769–79. Clark then held Mott permitted defendants to offer a third type
of evidence bearing on mens rea—“observation evidence.” Id. at 757, 760.

¶17 Clark described observation evidence as “testimony from
those who observed what [the defendant] did and heard what he said.” Id.
at 757. Such evidence might “support a professional diagnosis of mental
disease and in any event is the kind of evidence that can be relevant to show
what in fact was on [the defendant’s] mind” at the time of the offense. Id.
The observation evidence in Clark involved the defendant’s “behavior at
home and with friends, his expressions of belief around the time of the
killing that ‘aliens’ were inhabiting the bodies of local people (including
government agents), his driving around the neighborhood before the police
arrived and so on.” Id. Clark did not address whether a state could
constitutionally prohibit observation evidence. Id. at 765.

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¶18 Even characterizing the excluded evidence as “observation
evidence” would not end the analysis. “Observation evidence” is not per se
admissible. Rather, the defendant must demonstrate the observation
evidence is relevant with respect to mens rea. See State v. Wright, 214 Ariz.
540, 545, ¶ 16 (App. 2007) (no error in precluding proposed observation
evidence where the defendant “failed to link the evidence to the behavioral
characteristics relevant to the required mental state”). Here, Zuleger did not
show the excluded evidence tended to negate premeditation.

¶19 Regardless, as this court recognized in State v. Buot, “[t]he
distinction the Supreme Court drew [in Clark] between ‘observation
evidence’ and other mental-health evidence is not immediately apparent in
Mott (or any other Arizona case authority).” 232 Ariz. 432, 435, ¶ 14 (App.
2013) (citing the Clark dissent). Clark itself recognized its categorization of
observation, capacity, and mental-disease evidence was imprecise at the
margins, leaving finer determinations to Arizona courts. See 548 U.S. at 759.

¶20 Arizona’s Supreme Court has limited the use of observation
evidence to showing the defendant had a behavioral tendency to act
reflexively or impulsively. See Malone, 247 Ariz. at 34, ¶ 20. And though
“behavioral-tendency evidence is permissible to negate mens rea, linking
that behavior to a mental disease or defect, whether directly or under the
guise of corroboration, is impermissible.” See id. (italics added). Because the
evidence did not show Zuleger had a character trait for acting reflexively
or impulsively, the superior court did not err in excluding it.

II. Zuleger fails to establish prosecutorial misconduct warranting
reversal.

¶21 Zuleger argues three statements the prosecutor made during
closing arguments warrant reversal: (1) the physical evidence did not
support Zuleger’s testimony E.Z. threatened him with a knife; (2) if Zuleger
had a titanium plate in his face where E.Z. allegedly punched him, he was
likelier than someone without such a plate to show bruising; and (3)
Zuleger conceded the distance from the hallway to the kitchen (the path he
took to obtain the knives after pushing E.Z. to the ground) was 49 feet.

¶22 A defendant shoulders a heavy burden to succeed in
obtaining a reversal for prosecutorial misconduct. See State v. Moody, 208
Ariz. 424, 459, ¶ 145 (2004) The defendant must not only show misconduct
occurred, but also establish the misconduct “so infected the trial with
unfairness as to make the resulting conviction a denial of due process.” State
v. Hughes, 193 Ariz. 72, 79, ¶ 26 (1998). This court considers Zuleger’s claims

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of prosecutorial misconduct both individually and cumulatively. See State
v. Goudeau, 239 Ariz. 421, 465, ¶ 192 (2016).

¶23 The standard of review depends on whether Zuleger objected
to the statement. See State v. Martinez, 230 Ariz. 208, 214, ¶ 25 (2012). If he
did, this court reviews for harmless error; if he did not, this court reviews
for fundamental error. See id. For harmless error, the “standard is an
objective one, and requires a showing that without the error, a reasonable
jury could have plausibly and intelligently returned a different verdict.”
State v. Riley, 248 Ariz. 154, ___, ¶ 68 (2020) (internal citations omitted). “On
fundamental error review, the defendant has the burden of proving that the
court erred, that the error was fundamental in nature, and that he was
prejudiced thereby.” State v. Meeds, 244 Ariz. 454, 460–61, ¶ 13 (App. 2018),
review denied (Apr. 5, 2019). To establish prejudice, the defendant “must
show that without this evidence and attendant argument, a reasonable jury
could have reached a different verdict.” State v. Escalante, 245 Ariz. 135, 144,
¶ 29 (2018) (emphasis original, internal quotation omitted).

A. The prosecutor’s statement about the fingerprints on the
knives does not constitute misconduct.

¶24 The State analyzed the two knives found next to E.Z.’s body
for fingerprints. Prints taken from one of the knives matched Zuleger, but
prints taken from the other contained too little detail to compare with
known specimens. In the State’s closing argument, the prosecutor asserted
the fingerprint evidence did not support Zuleger’s assertion E.Z. was
holding one of the knives. Defense counsel objected, saying the prosecutor
was misstating the testimony. The superior court overruled the objection
and said it would allow jurors to rely on their own recollection.

¶25 Here, the prosecutor’s statement reflected an inference
reasonably supported by the evidence. The remark, therefore, did not
amount to misconduct. See State v. Burns, 237 Ariz. 1, 32, ¶ 152 (2015); State
v. Buccheri-Bianca, 233 Ariz. 324, 329, ¶ 15 (App. 2013).

B. The prosecutor’s statement about bruising does not
constitute fundamental error.

¶26 On cross-examination, the State asked Zuleger if he suffered
a black eye after E.Z. allegedly punched him. Zuleger replied he did not
because “I have a titanium plate in my eye.” During closing argument, the
prosecutor advised jurors to look at a close-up photo of Zuleger’s face taken
after his arrest, asserting it showed “no mark from being punched.” The
prosecutor then said if Zuleger in fact had a titanium plate where E.Z.

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allegedly hit him, “[h]is skin would have bruised more readily.” Defense
counsel did not object. Zuleger now contends the prosecutor committed
misconduct by drawing a conclusion not supported by expert testimony.
See State v. Gonzales, 105 Ariz. 434, 437 (1970) (“attorneys are not permitted
to introduce or comment upon evidence which has not previously been
offered and placed before the jury” during closing arguments).

¶27 Though the prosecutor’s statement may have improperly
ranged outside the scope of trial evidence, it does not rise to the level of
fundamental error depriving Zuleger of a fair trial. See Moody, 208 Ariz. at
463, ¶ 167. The remark was brief, and the superior court previously
instructed the jurors that closing arguments were not evidence.

C. The prosecutor’s statement about Zuleger conceding the 49-
foot distance to the kitchen was harmless error.

¶28 A detective who took measurements in the home testified the
distance from the hallway, where Zuleger initially forced E.Z. to the ground
to the area of the kitchen where Zuleger obtained the knives, measured 49
feet. The detective said it was another 45 feet from the kitchen to the location
in the living room where Zuleger killed E.Z.

¶29 During Zuleger’s testimony, the State asked him if he agreed
with the detective’s measurements. Zuleger did not, saying it was “maybe
15” feet between the kitchen and where E.Z. was killed. When asked if
Zuleger disputed a detective measured the distance, Zuleger said he did
not “know if [the detective] did” because he “never saw” the measuring
take place. The State also asked Zuleger if he disputed it was “46 [sic] feet
from . . . the kitchen through the family room to where [his] father’s body
was found.” Zuleger said, “I am not disputing anything. I do not know.”

¶30 During closing argument, the prosecutor told jurors they
“heard from the defendant he doesn’t contest that [the distance from the
hallway to the kitchen is] 49 feet.” Defense counsel objected, saying the
prosecutor had misstated Zuleger’s testimony. The superior court
“overrule[d] the objection and [would] allow the jury to rely on their own
notes that they took in terms of what the testimony is.”

¶31 The prosecutor incorrectly described Zuleger’s testimony.
“Still, the mere fact that a prosecutor makes improper remarks does not
require reversal unless, under the circumstances of the case, the jury was
probably influenced by those remarks.” Moody, 208 Ariz. at 460, ¶ 151
(internal quotation omitted). Whether or not Zuleger contested the distance
from the hallway to the kitchen has no bearing on whether he premeditated

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the killing. What matters is the actual distance and path he took. Here,
jurors could consider C.Z.’s testimony and photographs showing how the
rooms connected to draw their own conclusions regarding how long it
would have taken Zuleger to travel from the hallway to the kitchen.
Combined with the superior court instructing jurors not to treat counsel’s
arguments as evidence, Zuleger fails to show the prosecutor’s statement
was reasonably likely to have affected the verdict. See id.

D. Considering the cumulative effect of the prosecutor’s
misstatements, Zuleger received a fair trial.

¶32 Even if instances of misconduct do not individually warrant
reversal, this court must assess whether “the total effect rendered
defendant’s trial unfair.” See State v. Hulsey, 243 Ariz. 367, 388, ¶ 88 (2018).
Here, the challenged statements do require reversal because they do not
reveal “persistent and pervasive misconduct” showing “the prosecutor
intentionally engaged in improper conduct . . . with indifference, if not a
specific intent, to prejudice the defendant.” See Goudeau, 239 Ariz. at 469,
¶ 213 (internal quotation marks and citations omitted). For the reasons set
forth above, each remark was unlikely to impact the jury’s overall
consideration of the evidence. Considered cumulatively and given the
mitigating effect of the superior court’s instructions, the remarks were not
“so prolonged or pronounced that [they] affected the fairness of trial.” See
Hulsey, 243 Ariz. at 389, ¶ 89, 394, ¶ 123.

CONCLUSION

¶33 For the above reasons, this court affirms Zuleger’s convictions
and sentences.

AMY M. WOOD • Clerk of the Court
FILED: AA

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