State v. Palmares

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ESTEVANICO DOS QUILOMBO PALMARES, Appellant.

No. 1 CA-CR 23-0245

FILED 10-10-2024
Appeal from the Superior Court in Maricopa County
No. CR2020-120106-001
The Honorable Rosa Mroz, Judge (Deceased)
The Honorable Kevin B. Wein, Judge

AFFIRMED

COUNSEL

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

Zhivago Law PLLC, Phoenix
By Kerrie Droban Zhivago
Counsel for Appellant
 STATE v. PALMARES
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MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Andrew M. Jacobs joined.

T H U M M A, Judge:

¶1 Defendant Estevanico Palmares appeals his convictions and
sentences for two counts of second-degree murder and one count of
misconduct involving weapons, arguing reversible error on four grounds.
First, he argues the superior court erred in admitting evidence obtained
through an illegal warrantless search. Second, he argues the court erred by
denying his motion for mistrial after the jury heard he had been
incarcerated. Third, he argues the court erred by admitting hearsay
evidence that he also argues was unfairly prejudicial. Fourth, he argues the
court erred in denying his attorney’s motion to withdraw. Because
Palmares has shown no reversible error, his convictions and sentences are
affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 At about 10:45 a.m. on May 18, 2020, a 9-1-1 call reported
gunshots associated with one unit of a four-unit apartment building in a
high-crime area of Phoenix. Although requested, no police officers were
dispatched to respond to that call. Later that day, at about 3:15 p.m., another
9-1-1 caller requested a welfare check at the same unit. The caller reported
hearing gunshots from that unit at around nine or ten in the morning, and
she was concerned the apartment’s front door was still open. Neighbors
also reported it was unusual for the door to remain open. Two police
officers responded to the second call just after 3:30 p.m.

¶3 Upon arrival, the officers noted that the front door to the unit
reported in the calls was closed, but the front door of the adjacent unit was
open. Palmares lived in the unit with the open front door. Palmares lived
there with his wife, C.P., and a male roommate, R.A. The unit had a front
patio with an exterior gate, surrounded by solid six-foot-tall walls. The
exterior gate had slats allowing someone outside the gate to see through it.
From the outside of the gate, the responding officers could see the very top
of the open front door. They could not, however, see inside the unit.

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¶4 Assuming the callers had been mistaken about the specific
unit, officers updated the call location to the unit with the open door. That
update revealed that Palmares lived in the unit and that he was “very anti-
pd,” or police department, which prompted a call for backup. Officers
discovered Palmares had an outstanding arrest warrant, and he had
previously been detained for domestic violence. Officers announced
themselves and tried calling the number listed for Palmares’ unit but
received no answer.

¶5 After obtaining supervisor approval for a welfare check, one
officer picked the lock to the slatted gate and, at 4:01 p.m., entered the patio
of the unit. As they approached the front door, they could then see bodies
on the floor, later confirmed to be victims C.P. and R.A. Officers
immediately conducted a “protective sweep” of the unit and found no one
else inside. Officers then obtained a search warrant, which they executed at
8:55 p.m. During the execution of that search warrant, officers recovered
four spent bullet casings marked “Blazer .380 auto” and a Bersa firearm box.

¶6 The next day, after receiving an anonymous tip about a
possible homicide suspect, officers encountered Palmares. Palmares ran
after seeing police vehicles. After chasing him on foot, officers arrested
Palmares and found a Bersa gun underneath a nearby vehicle. The gun
matched the serial number from the firearm box found at Palmares’ unit.
The bullets recovered from the victims’ bodies also had “a high degree of
correspondence” with bullets fired from the Bersa gun.

¶7 Palmares was charged with two counts of second-degree
murder, Class 1 dangerous felonies, and one count of misconduct involving
weapons, a Class 4 felony. Palmares moved to suppress evidence obtained
from the warrantless entry into his unit. After an evidentiary hearing, the
superior court initially granted Palmares’ motion. The State then moved to
reconsider; the superior court held another evidentiary hearing and granted
the motion to reconsider, based on inevitable discovery.

¶8 The State filed a notice of intent to admit C.P.’s notebook,
containing journal entries describing her troubled marriage, Palmares’
jealousy and his repeated accusations that she was cheating on him. The
State also sought to admit “other act” text messages detailing domestic
disputes between C.P. and Palmares involving law enforcement, as well as
text messages indicating Palmares purchased, possessed and fired a
firearm. Palmares objected and after full briefing, an evidentiary hearing
and oral argument, the court found C.P.’s journal entries and the text
messages were admissible.

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¶9 At a February 2023 trial, the jury found Palmares guilty on
both counts of second-degree murder and that the State had proven four
aggravators. The superior court denied Palmares’ motion for new trial
and/or for judgment of acquittal. The misconduct involving weapons was
tried separately to the court, after Palmares waived his right to a jury trial,
and the court found him guilty on that charge.

¶10 Given Palmares had a prior conviction of a Class 3 dangerous
felony, the superior court sentenced him to the maximum prison term of 29
years for each of the murder convictions, to be served consecutively. See
Ariz. Rev. Stat. (A.R.S.) § 13-710(B)(2024).1 The court sentenced him to 10
years in prison for the misconduct involving weapons conviction, to be
served concurrently with the first murder conviction. The court properly
awarded him 1,126 days for his presentence incarceration. This court has
jurisdiction over Palmares’ timely appeal pursuant to Article 6, Section 9,
of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031 and 13-
4033(A).

DISCUSSION

I. Palmares Has Not Shown Reversible Error in the Denial of his
Motion to Suppress.

¶11 In reviewing the denial of a motion to suppress, this court
limits its review to the facts considered at the suppression hearing, State v.
Blackmore, 186 Ariz. 630, 631 (1996), viewed in the light most favorable to
sustaining the superior court’s ruling, State v. Hyde, 186 Ariz. 252, 265
(1996). This court defers to the superior court’s factual findings but reviews
questions of law de novo. See State v. Gonzalez–Gutierrez, 187 Ariz. 116, 118
(1996). The superior court’s ruling will be upheld if it is correct for any
reason. State v. Canez, 202 Ariz. 133, 151 ¶ 51 (2002).

¶12 In granting the State’s motion to reconsider in part, the
superior court found the State had proven by a preponderance of the
evidence that “evidence of the dead bodies, and all of the evidence
discovered within [Palmares’ apartment] would have been discovered by
lawful means.” The court cited the following reasons for its conclusion:

1 Absent material revisions after the relevant dates, statutes and rules cited

refer to the current version unless otherwise indicated.

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(1) R.A.’s sister “would have noticed [he] was
missing within a day of his death and reported
him missing;”

(2) “The bodies would have given off putrid
odors, and there would have been significant
insect activity around the bodies within 2 days,
or earlier” and “[t]he police would have
investigated the missing person and any place
in which there are odors of decomposing bodies
and significant insect activity;”

(3) Palmares “would have had a very difficult
time disposing of the dead bodies given their
girth, and because the police and private
security would have monitored [Palmares’]
apartment closely due to the open front door”
and

(4) Palmares “was arrested before he would
have had the chance to dispose of the bodies
because he already had a warrant out for his
arrest.”

¶13 Under the exclusionary rule, illegally obtained evidence will
be suppressed or excluded at trial unless an exception applies. State v. Ault, 150 Ariz. 459, 465 (1986). The inevitable discovery doctrine is one such
exception. Id. The inevitable discovery doctrine provides that “evidence
obtained as a result of an unlawful search need not be suppressed when, in
the normal course of police investigation and conduct, and absent the illicit
conduct, the evidence would have been discovered inevitably or
ultimately.” State v. Acosta, 166 Ariz. 254, 258 (App. 1990).

¶14 Arizona law has recognized this exception where officers
found evidence during an illegal pat-down where the defendant “would
have been arrested on independent grounds and the evidence would
inevitably have been discovered during a lawful search incident to that
arrest,” State v. Davolt, 207 Ariz. 191, 205 ¶ 38 (2004), or where officers
searched a car without a warrant and found evidence that would have been
discovered during an inventory search, State v. Jones, 185 Ariz. 471, 481
(1996). This case, however, is more comparable to Brown v. McClennen, the
Arizona Supreme Court’s most recent case applying the inevitable
discovery doctrine, where the State illegally obtained a sample of the

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defendant’s blood. 239 Ariz. 521 (2016). The State later argued the evidence
was admissible because, if the defendant “had refused consent, the deputy
would have obtained a search warrant and legally drawn Brown’s blood.”
Id. at 524 ¶ 13. Brown affirmed the ruling that the inevitable discovery
doctrine did not apply, because it was not inevitable that law enforcement
would have obtained the sample “by lawful, independent means.” Id. at 525
¶ 15. Rather, law enforcement could only have obtained the sample “by
means of a search warrant. But because the inevitable discovery exception
cannot excuse the failure to secure a warrant in the first place, the
exclusionary rule applies.” Id.

¶15 Significantly, the State points to no Arizona case concluding
the inevitable discovery doctrine would apply here. As Brown cautioned,
the doctrine is bounded by lawful action from law enforcement that
inevitably would follow:

The State’s view of the inevitable discovery
exception would swallow the rule. The
exception does not turn on whether the
evidence would have been discovered had the
deputy acted lawfully in the first place. . . .
Rather, the exception applies if the evidence
would have been lawfully discovered despite
the unlawful behavior and independent of it.

239 Ariz. at 524–25 ¶ 14. And the out-of-state cases cited by the State about
the “inescapable odor of a decaying body” would apply only if Palmares
did not dispose of the bodies before that occurred. See Acosta, 166 Ariz. at
258 (applying the inevitable discovery doctrine where “evidence would
have been discovered inevitably or ultimately”). Accordingly, the
inevitable discovery doctrine does not apply here.

¶16 Recognizing the superior court’s ruling will be upheld if it is
correct for any reason, Canez, 202 Ariz. at 151 ¶ 51, and tacitly conceding
issues with inevitable discovery, the State’s primary argument is that denial
of the motion to suppress was proper because the officers acted reasonably
under the emergency–aid exception. While warrantless entries into homes
are presumptively disallowed, the emergency aid exception authorizes
such warrantless entries when “(1) police have reasonable grounds to
believe there is an emergency that requires their immediate assistance to
protect life or property and (2) there is a reasonable basis to associate the
emergency with the place to be searched.” State v. Inzunza, 234 Ariz. 78, 82
¶ 12 (App. 2014).

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¶17 The superior court here rejected the application of the
emergency aid exception because officers “did not make entry until 5.5
hours after the shots were fired” and “did not witness anything that
corroborated their belief that there was an active emergency situation.”
While the court noted Arizona cases recognizing the emergency aid
exception contain facts where “police responded almost immediately to the
crime tips that they received, and/or the police witnessed events that
corroborated their belief in an active emergency situation,” Arizona case
law also dictates that “[d]elay alone . . . does not bar reliance on the
emergency aid exception.” State v. Sharp, 193 Ariz. 414, 419 ¶ 14 (1999).

¶18 Here, officers testified they did not respond to the first 9-1-1
call reporting shots fired “because of the number of shots fired calls that
happen throughout the city.” However, officers responded about fifteen
minutes after the second 9-1-1 call requesting a welfare check and reporting
the apartment door was still open, a particularly unusual occurrence given
the high rate of violence at this apartment complex. They then obtained
supervisor approval to enter the outside gate to perform a welfare check
and, after entering the patio, they saw two bodies through the open front
door of Palmares’ unit.

¶19 Though these actions came hours after the first 9-1-1 call,
officers responded less than twenty minutes after the request for a welfare
check. The second call was also when they were first told of the open front
door in an area with “the highest call volume of violent calls” in Phoenix.
Officers testified that though they did not hear gunshots when they arrived,
they knew individuals could survive for “quite a while” if they apply
pressure to a gunshot wound and did not feel comfortable “waiting several
hours” that it would take to secure a warrant “when there’s a possibility
there could be something going on inside.” On these facts, officers had
“reasonable grounds to believe there [was] an emergency” and someone
inside might need aid. See Inzunza, 234 Ariz. at 82 ¶ 12.

¶20 “[I]n cases such as the emergency aid exception where the
warrantless search is limited by the exigency that gives rise to it, the officer’s
perception of the exigency is a necessary limitation on the search.” In re
Tiffany O., 217 Ariz. 370, 377 ¶ 25 (App. 2007). Notably, officers here did not
make initial entry into Palmares’ apartment. Rather, after seeing the open
door, they entered the patio through the gates to secure the open front door,
which was visible from outside and under alarming circumstances. Once
they entered the patio, they saw R.A.’s body through the open front door,
after which they conducted a “protective sweep” of the home and, finding
the two bodies but nobody alive in the home, sought and obtained a

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warrant. The initial entry was short in duration, minimally invasive, and
limited to the exigency giving rise to the emergency. On this record, albeit
for different reasons than identified by the superior court, Palmares has not
shown error in the denial of his motion to suppress.

II. The Superior Court Did Not Abuse Its Discretion in Denying
Palmares’ Motion for Mistrial.

¶21 This court reviews the denial of a motion for a mistrial based
on the jury hearing inadmissible evidence for an abuse of discretion. State
v. Welch, 236 Ariz. 308, 314 ¶ 20 (App. 2014). Two factors are particularly
relevant to that inquiry: “(1) whether the remarks called to the attention of
the jurors matters that they would not be justified in considering in
determining their verdict, and (2) the probability that the jurors, under the
circumstances of the particular case, were influenced by the remarks.” State
v. Stuard, 176 Ariz. 589, 601 (1993). Mistrial is “the most dramatic remedy
for trial error and should only be granted when it appears that justice will
be thwarted unless the jury is discharged and a new trial granted.” State v.
Dann, 205 Ariz. 557, 570 ¶ 43 (2003) (citation omitted).

¶22 Here, during the State’s questioning of Palmares’ sister, his
incarceration was referenced as follows:

STATE: Are you close to your brother?
WITNESS: Yes.
STATE: And do you two talk frequently?
WITNESS: Before, yes.
STATE: What do you mean by “before”?
WITNESS: He’s incarcerated.
STATE: Are you aware that while he’s
incarcerated, the Maricopa County Jail records
all of his phone conversations?
WITNESS: Yes.
***
STATE: So, until a few months ago, you
did continue talking to him while he was
incarcerated?
WITNESS: Yes.
***
STATE: Prior to his incarceration, how
frequently did you see your brother?
WITNESS: Not often.

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Following these exchanges, at sidebar, Palmares’ counsel objected and
requested a mistrial. The court ordered “there be no more references to
[Palmares’] incarcerated status” and took the motion for mistrial under
advisement.

¶23 When later denying the motion for mistrial, the court
acknowledged Palmares’ incarceration should not have been mentioned
but found that “the particulars of” the case “suggest that the jurors would
not be improperly influenced.” The final instructions the court gave the jury
included the following: “[w]hether the defendant has been in custody at
any time should not be considered by you for any purpose, influence your
view of the evidence or impact your deliberations in any way.” Palmares
now argues the court erred because the State “deliberately invited the error,
(emphasized it multiple times) and unnecessarily drew attention to
[Palmares’] status.”

¶24 The jury should not have heard about Palmares’
incarceration. And the State’s reference to the jail call recordings indicates
the topic should have been addressed before trial. That did not occur. On
this record, however, the superior court properly could conclude that these
passing references to Palmares’ custody status did not deprive him of the
presumption of innocence. See State v. Murray, 184 Ariz. 9, 35 (1995)
(“Certainly the jurors were aware that defendants were arrested and had
spent some time in custody prior to trial. Such knowledge is not prejudicial
and does not deny defendants the presumption of innocence.”).
Recognizing the superior court “is in the best position to determine whether
the evidence will actually affect the outcome of the trial,” State v. Jones, 197
Ariz. 290, 304 ¶ 32 (2000), it found that “the jury knows that the defendant
was arrested ‘cause they saw it on the video” which was admitted without
objection and played for the jury. The court properly observed that the jury
could “presume that he spent some time in custody.” The court also noted
Palmares was “charged with second-degree murder. I think it stands to
reason that a juror would assume that the defendant has spent some time
in custody on these matters.” Accordingly, although the jury should not
have heard that Palmares had been in custody, he has not shown the
superior court abused its discretion in denying his motion for mistrial.

III. The Superior Court Did Not Abuse Its Discretion in Admitting
Journal Entries and Text Messages in Evidence.

¶25 Palmares argues the superior court abused its discretion in
admitting three of C.P.’s journal entries as well as some text messages
between R.A. and his sister. The superior court found the text messages

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admissible under the present sense impression exception as well as Rule
807, the residual exception to hearsay. Though Palmares asserts that
introducing the text messages was error, he does not develop this argument
on appeal. Accordingly, Palmares has waived this argument. See State v.
Sanchez, 200 Ariz. 163, 166 ¶ 8 (App. 2001) (finding waiver for failure to
develop argument).

¶26 To qualify for the present sense impression exception to the
rule against hearsay, the evidence must be “[a] statement describing or
explaining an event or condition, made while or immediately after the
declarant perceived it.” Ariz. R. Evid. 803(1). The permissible amount of
time elapsed between the event and the statement depends on the totality
of the circumstances of each individual case. See State v. Tucker, 205 Ariz.
157, 166 ¶ 45 (2003). Superior courts have “some latitude in finding whether
a statement was made immediately after the event.” Id. at 166 ¶ 46.
Admissibility is reviewed for an abuse of discretion. Id. at 165 ¶ 41.

¶27 Two of C.P.’s journal entries state they were written in
September 2016, and the third entry is undated. All describe Palmares’
jealousy and his accusations that she was being unfaithful to him. Palmares
now argues C.P.’s journal entries were “neither ‘immediate,’ nor
descriptive of particular ‘events’ ‘as they unfolded,’” but instead
“memorialized” earlier events, and as such do not fall under the exception.

¶28 The superior court noted C.P.’s journal entries “describ[e] in
present tense the disagreements she is having with [Palmares] and that he
is accusing her of cheating. She describes her feelings and emotions and
appears to be writing in her journal to work through her emotions.” A
declarant’s use of present tense suggests the statement was made “either
during [the event described] or shortly thereafter.” State v. Damper, 223
Ariz. 572, 576 ¶ 17 (App. 2010).

¶29 C.P.’s writings describe events both in the present tense and
past tense. For the events described in the present tense, they easily fit
within the present sense impression exception to the rule against hearsay.
See Ariz. R. Evid. 803(1). And the remaining events are described as recent
occurrences and properly were admitted under this exception.
Accordingly, C.P.’s journal entries were properly admitted as present sense
impressions, meaning this court need not address whether they were
admitted under the residual exception to the rule against hearsay. See Ariz.
R. Evid. 807.

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¶30 Palmares also argues the superior court erred in admitting the
writings and texts because “their prejudicial effect substantially
outweighed any probative value.” The superior court has broad discretion
because it “is in the best position to balance the probative value of
challenged evidence against its potential for unfair prejudice.” State v.
Connor, 215 Ariz. 553, 564 ¶ 39 (App. 2007).

¶31 Palmares asserts “[t]he journal entries and text messages
between R.A. and his sister were unfairly prejudicial because they strongly
(and unfairly) characterized [Palmares’] relationship with C.P. at least four
years prior, as volatile and ripe with accusations of alleged infidelity.”
Though some of C.P.’s journal entries were from 2016, the superior court
found “that the remoteness in time is a factor to be considered by the jury
when determining the weight to be given to this evidence.” The court also
found C.P.’s writings “to be inherently reliable as they were written in
[C.P.’s] private journal where she would have no motive to fabricate.”
Palmares has shown no Rule 403 error in admitting C.P.’s journal entries.

¶32 The text message exchange occurred leading up to the
murders. The superior court found R.A. had “no motive to lie to his sister
in private text messages regarding [Palmares’] jealousy, possession of a gun
and [his] need to get out.” Furthermore, R.A.’s sister was “available to
testify at trial and [was] subject to cross examination.” On this record,
Palmares has shown no abuse of discretion in the court rejecting his Rule
403 objections.

IV. The Superior Court Did Not Abuse Its Discretion in Denying
Counsel’s Motion to Withdraw.

¶33 Palmares argues that the superior court’s denial of his request
for another attorney (who would have been his third) “effectively forced
[Palmares] to continue with [trial counsel] or risk an involuntary waiver of
his right to counsel,” asserting Palmares and his attorney had a “completely
fractured relationship, clearly an ‘irreconcilable conflict.’” This court
reviews the denial of a motion to withdraw for an abuse of discretion. Jones,
185 Ariz. at 482. When deciding such a motion, the superior court properly
considers factors including: (1) “whether an irreconcilable conflict exists
between counsel and the accused, and 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) “quality of counsel.” State v. LaGrand, 152 Ariz. 483, 486–
87 (1987) (citing cases).

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¶34 During pretrial proceedings in late 2020, Palmares requested
new counsel citing a “breakdown in communication.” The superior court
granted the request and appointed new trial counsel. In the summer of
2022, on three occasions, Palmares requested new counsel and then
withdrew his requests. In January 2023, Palmares filed a letter seeking to
dismiss counsel, citing a “breakdown in communication,” but the court
found “the issues in the letters have already been addressed” and took no
action on them.

¶35 At a January 2023 final trial management conference, a week
before trial was scheduled to start, Palmares requested a Spanish-speaking
attorney, which the court denied, noting “[t]he Court believes [Palmares’]
request for a Spanish-speaking attorney is a delay tactic only and notes that
[Palmares] has never before requested a Spanish-speaking attorney.” The
court also noted that Palmares had long been participating in his case,
writing and commenting in English and demonstrating an “advanced
vocabulary.” At this same conference, Palmares was “removed from the
courtroom for being disruptive and uncooperative.” Palmares’ counsel
expressed “concerns for his safety during trial if this case proceeds to trial”
and expressed a belief that “there has been a breakdown in
communication.” Acknowledging the concerns, the court noted (with
assent by counsel) the likelihood that any attorney “would have a
communication breakdown” with Palmares. The court then denied a
renewed motion to withdraw by Palmares’ counsel.

¶36 At the trial setting hearing held the next week before a
different judge, Palmares’ counsel renewed his motion to withdraw, which
the court denied given its prior rulings. Palmares then cursed “at the court
and threaten[ed] his attorney” before requesting to be removed from the
courtroom. At a status conference the next week, Palmares directly made
representations to the court requesting new counsel and moving to
continue trial, which the court denied. Despite Palmares’ repeated
outbursts leading up to trial, the trial itself – where Palmares was
represented by the same attorney – then proceeded without major incident.

¶37 The record provides evidence that “new counsel would [have
been] confronted with the same conflict,” that Palmares had already
changed counsel, and that the motions complained of here were made very
close to trial and identified by the superior court as a delay tactic.
Recognizing the importance of these factors as stated in LaGrand, 152 Ariz.
at 486–87, on this record, Palmares has not shown the court abused its
discretion in denying counsel’s motion to withdraw.

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CONCLUSION

¶38 Palmares’ convictions and sentences are affirmed.

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

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