State v. Gomez

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-03-0199-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2000-090114
FABIO EVELIO GOMEZ, )
)
Appellant. ) O P I N I O N
)
__________________________________)

Appeal from the Superior Court of Maricopa County
The Honorable James H. Keppel

CONVICTIONS AND SEXUAL ASSAULT SENTENCE AFFIRMED, CAPITAL AND
KIDNAPPING SENTENCES VACATED, REMANDED FOR FURTHER SENTENCING
PROCEEDINGS

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Capital Litigation Section
Jim D. Nielsen, Assistant Attorney General
Attorneys for the State of Arizona

JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix
By Terry J. Adams, Deputy Public Defender
Susan L. Corey, Deputy Public Defender
Attorneys for Fabio Evelio Gomez

H U R W I T Z, Justice

¶1 Fabio Evelio Gomez was convicted of kidnapping, sexual

assault, and first degree murder. Gomez received a death

sentence for first degree murder and an automatic notice of

appeal was filed pursuant to Arizona Rule of Criminal Procedure

31.2(b). This Court has jurisdiction under Article 6, Section
5(3), of the Arizona Constitution and Arizona Revised Statutes

(“A.R.S.”) § 13-4031 (2001).

I.

¶2 Joan Morane lived in the Chandler Park Tower

Apartments in Chandler, Arizona. On December 2, 1999, a friend

stopped by Joan’s apartment after work. The door of the

apartment was unlocked and various items inside were in

disarray.

¶3 Gomez lived across the landing from Joan. Shortly

after 5:00 p.m., a resident of the apartment complex heard a

woman screaming “No!” from Gomez’s bathroom and called 911.

Chandler police officers responded to the call.

¶4 When the officers arrived, Joan’s friend informed them

that Joan was missing. After looking through Joan’s apartment,

the officers departed.1 Joan’s friend remained and attempted to

talk to neighbors about the 911 call. Gomez initially did not

respond to knocks on his door, but later emerged, denying that

he had seen Joan or heard any screaming. Shortly thereafter,

Gomez left his apartment to pick up his live-in girlfriend.

¶5 Joan still had not returned, so her friend telephoned

Joan’s ex-husband, who arrived at the complex at about 6:00 p.m.

1
The neighbor who had made the 911 call left the complex
shortly after the officers arrived. The officers therefore
apparently did not know which apartment had been the scene of
the alleged screaming and did not go to Gomez’s apartment.

2
The ex-husband found two red buttons outside of Gomez’s

apartment door, and Chandler police were again summoned. An

officer returned, collected the buttons, and left the complex at

approximately 8:00 p.m.

¶6 Gomez and his girlfriend returned at about the same

time as the officers were leaving. The girlfriend saw blood in

their apartment and complained to Gomez. Gomez told her that

earlier that day he had gone outside to smoke, leaving the door

open, and that a cat had come in and scratched their baby.

Gomez said that he bludgeoned the cat to death in the bathroom

and threw it into a dumpster at the complex. The girlfriend

went down to look in the dumpster but saw no cat; on returning

to the apartment she discovered more blood.

¶7 Chandler police officers came back to the complex

later that evening and briefly questioned Gomez from outside of

his apartment. Gomez again claimed to know nothing about Joan’s

disappearance or sounds of screaming coming from his apartment.

The police returned to the complex several times during the

early morning of December 3. On one of these occasions, an

officer saw Gomez on the staircase carrying a deflated yellow

raft to his girlfriend’s vehicle. Gomez again denied any

knowledge of Joan’s disappearance.

¶8 The officer returned about an hour later and looked

into the girlfriend’s car with his flashlight. After the

3
officer noted what appeared to be two small bloodstains on the

yellow raft, he called for backup, went upstairs, and asked

Gomez whether he and another officer could enter the apartment.

Gomez agreed.

¶9 Once inside, one officer saw what appeared to be blood

spots on the living room carpet. He asked Gomez where the blood

had come from; Gomez replied that his girlfriend had cut her

foot. The officers obtained Gomez’s consent to search the

apartment and noticed more blood on the bathroom walls.

¶10 In the bedroom, an officer found the girlfriend

asleep, awakened her, and asked if she had cut her foot. She

replied she had not; the officer looked at her feet and found no

injuries. He then asked her about the blood in the living room,

and she related Gomez’s explanation about the cat.

¶11 The officers then asked Gomez what he had done with

the cat. Gomez said that he had put it in a garbage bag and

thrown it into a dumpster at a nearby restaurant. After

radioing for a search of the restaurant dumpster, officers

noticed more spots of what appeared to be blood in the bathroom

and by the front door and found wet throw rugs hung up to dry in

the bathroom.

¶12 A search of the restaurant dumpster proved futile.

However, an officer subsequently saw what appeared to be dried

blood on the front of a dumpster at the apartment complex.

4
Inside the dumpster, an officer found a blanket, a newspaper,

and a woman’s blouse, all with dried blood on them. A more

thorough search revealed Joan’s body, clad only in a red

nightshirt missing buttons similar to the ones found outside

Gomez’s apartment.2 In nearby dumpsters, the police found a pair

of stained shorts, duct tape with blood on it and hairs attached

to it, and bloodstained socks and washcloths.

¶13 Subsequent searches of Gomez’s apartment revealed

bloodstains on the walls and floor and a large bloodstain near

the patio door that had been covered up with several towels and

a pillow. A bloodstained comforter was found inside the washing

machine. The police also found socks and towels in the

apartment similar to the bloodstained items in the dumpsters.

They also found a receipt dated December 1, 1999, showing the

purchase of duct tape; the only duct tape found in the apartment

was a small strip stuck to the carpet.

¶14 Vaginal swabs taken from Joan’s body revealed the

presence of semen. Subsequent DNA testing identified the semen

2
Joan’s body was bruised extensively. She had bruises on
her arms and wrists consistent with someone gripping her
tightly. The bruises to her right hand and wrist were
consistent with defensive wounds. Joan had numerous lacerations
and contusions on her face and head. Her nose was broken and an
abrasion at the back of her hairline was consistent with duct
tape having been applied and then removed. Joan’s skull was
“extensively” fractured; the shattered bone fragments had torn
her brain.

5
as Gomez’s and the bloodstains in the apartment as Joan’s. No

cat blood was ever found in the apartment.

¶15 At trial, Gomez denied any knowledge of or involvement

in Joan’s disappearance and murder. He admitted to having sex

with Joan but claimed it was consensual. He again claimed that

the blood in his apartment was from a cat.

¶16 The jury returned verdicts finding Gomez guilty of

first degree murder, kidnapping, and sexual assault.3 Sentencing

proceedings were commenced before the trial judge, but before

sentence could be pronounced, the United States Supreme Court

decided Ring v. Arizona, 536 U.S. 584 (2002) (Ring II), holding

Arizona’s capital sentencing scheme unconstitutional. The

legislature then amended the capital sentencing statute and

assigned to juries the responsibility of finding aggravating

circumstances and determining whether a sentence of life

imprisonment or death should be imposed. 2002 Ariz. Sess. Laws,

5th Spec. Sess., ch. 1, § 3 (codified at A.R.S. § 13-703.01

(Supp. 2003)). The sentencing proceedings therefore began anew

under the amended statutes before a new judge and a newly

empanelled jury. Gomez represented himself during these

3
As to the first degree murder conviction, six jurors found
premeditation and six found felony murder. A jury need not be
unanimous as to the theory of first degree murder as long as all
agree that the murder was committed. Schad v. Arizona, 501 U.S.
624, 645 (1991); State v. Tucker, 205 Ariz. 157, 167 ¶ 51, 68
P.3d 110, 120 (2003).

6
proceedings with the assistance of advisory counsel.4 At the

conclusion of the aggravation phase, the jury unanimously found

that the murder was committed in a cruel and depraved manner but

was not unanimous as to whether the murder was heinous.5 After

hearing mitigation evidence in the penalty phase, the jury found

death to be the appropriate sentence. The superior court

subsequently sentenced Gomez to death for the first degree

murder and to aggravated sentences for the kidnapping and sexual

assault, the non-capital sentences to run concurrently with each

other and consecutively to the death sentence.

¶17 Gomez challenges his conviction for first degree

murder and his sentences for all three of the offenses. For the

reasons below, we affirm Gomez’s convictions but vacate his

death sentence and the kidnapping sentence and remand for

resentencing.

II.

A.

¶18 Gomez argues that the superior court erred in giving

4
Gomez relinquished his pro per status at the end of the
trial and allowed advisory counsel to represent him and present
the closing argument.
5
A.R.S. § 13-703(F)(6) (2001) lists as an aggravating
circumstance that “[t]he defendant committed the offense in an
especially heinous, cruel or depraved manner.” Because the
statute lists the three factors in the disjunctive, a finding of
any one of the three establishes the (F)(6) aggravator. State
v. Cromwell, 211 Ariz. 181, 189 ¶ 43, 119 P.3d 448, 456 (2005).

7
the following jury instruction regarding premeditation:

Premeditation means that a person acts with either the
intention or the knowledge that he will kill another
human being when such intention or knowledge preceded
the killing by a length of time to permit reflection.
Proof of actual reflection is not required, but an act
is not done with premeditation if it is the instant
effect of a sudden quarrel or heat of passion.

It is this period of reflection, regardless of its
length, which distinguishes first degree murder from
intentional or knowing second degree murder.

The court gave this instruction both at the beginning and end of

the trial. Gomez did not object on either occasion.

¶19 In State v. Thompson, we found the use of the phrase

“proof of actual reflection is not required” to be error if

given in a jury instruction “without further clarification.”

204 Ariz. 471, 480 ¶ 34, 65 P.3d 420, 429 (2003). The State

concedes that the instruction given in this case was erroneous

in light of Thompson, but argues that reversal is not warranted

because of Gomez’s failure to object to the instruction.

¶20 We have emphasized that “rarely will an improperly

given instruction justify reversal of a criminal conviction when

no objection has been made in the trial court.” State v. Van

Adams, 194 Ariz. 408, 415 ¶ 17, 984 P.2d 16, 23 (1999) (internal

quotation marks and citations omitted). In the absence of an

objection to an instruction, we review for fundamental error.

State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984).

¶21 Error is fundamental if it “goes to the foundation of

8
[the defendant’s] case, takes away a right that is essential to

his defense, and is of such magnitude that he could not have

received a fair trial.” State v. Henderson, 210 Ariz. 561, 568

¶ 24, 115 P.3d 601, 608 (2005). Reversal is required only if

the defendant was actually prejudiced by the error. Id. at 567

¶ 20, 115 P.3d at 607.

¶22 In arguing that any error was not fundamental, the

State relies heavily on Van Adams. In that case, decided before

Thompson, the defendant was charged with first degree murder;

his defense was that he did not commit the homicide. Van Adams,

194 Ariz. at 415 ¶ 18, 984 P.2d at 23. Van Adams claimed on

appeal that the superior court erred in failing to instruct the

jury that actual reflection was needed for premeditation. Id.

at 414 ¶ 16, 984 P.2d at 22. Because Van Adams failed to object

to the jury instructions, however, we held that he was precluded

from claiming anything but fundamental error. Id. at 415 ¶ 17,

984 P.2d at 23. The error in Van Adams was not fundamental

because

[a]ppellant’s defense rested solely on his claim of
total innocence or mistaken identity, rather than on
an assertion that although he committed the murder, he
did so mistakenly or without actual reflection. The
premeditation instruction therefore neither removed a
right from Appellant nor hindered his ability to raise
total innocence or mistaken identity as his defense.
If the trial court erred, the error did not take from
defendant a right essential to his defense.

Id. at ¶ 18.

9
¶23 Like Van Adams, Gomez also presented a claim of total

innocence. In attempting to distinguish Van Adams, Gomez places

primary reliance on State v. Dann, 205 Ariz. 557, 74 P.3d 231

(2003), decided after Thompson. In Dann, the defendant was

charged with three first degree murders, id. at 562 ¶ 1, 74 P.3d

at 236, and defended on the grounds of total innocence, id. at

566 ¶ 19 n.3, 74 P.3d at 240 n.3. The superior court gave a

variant of the instruction disapproved in Thompson. Id. at 565

¶ 17, 74 P.3d at 239.

¶24 This Court found the instruction erroneous. Id.

Because Dann had objected to the jury instruction, it was

analyzed for harmless error. Id. at ¶ 18. We concluded that

the State had not demonstrated that the error was harmless

beyond a reasonable doubt as to two of the murder verdicts

because the evidence of premeditation was not overwhelming. Id.

at 566 ¶ 21, 74 P.3d at 240.

¶25 Claiming that the evidence of premeditation in this

case also is not overwhelming, Gomez argues that Dann requires a

new trial. Gomez, however, ignores an important distinction

between Dann and Van Adams. In the latter case, because the

defendant did not object to the allegedly erroneous jury

instruction on premeditation, our review was for fundamental

error; we found none because the defendant claimed total

innocence. In contrast, in Dann, in which a timely objection

10
was raised, this Court reviewed for harmless error and concluded

that the State could not demonstrate that the erroneous

instruction was harmless beyond a reasonable doubt. The two

cases thus turn on the differing standards of review for

harmless and fundamental error.

¶26 This Court recently explained those standards in

Henderson:

Reviewing courts consider alleged trial error under
the harmless error standard when a defendant objects
at trial and thereby preserves an issue for appeal.
Harmless error review places the burden on the state
to prove beyond a reasonable doubt that the error did
not contribute to or affect the verdict or sentence.

Fundamental error review, in contrast, applies when a
defendant fails to object to alleged trial error. The
scope of review for fundamental error is limited. A
defendant who fails to object at trial forfeits the
right to obtain appellate relief except in those rare
cases that involve error going to the foundation of
the case, error that takes from the defendant a right
essential to his defense, and error of such magnitude
that the defendant could not possibly have received a
fair trial. In addition, we place the burden of
persuasion in fundamental error review on the
defendant.

210 Ariz. at 567 ¶¶ 18-19, 115 P.3d at 607 (internal citations

and quotation omitted).

¶27 Van Adams squarely holds that, when a defense rests

solely on a claim of total innocence, an erroneous jury

instruction on premeditation does not take away a right

essential to the defense. 194 Ariz. at 415 ¶ 18, 984 P.2d at

23. Because Gomez’s defense was of total innocence, any error

11
in the jury instruction therefore is not fundamental.

B.

¶28 Gomez requested and received a jury instruction on the

lesser included offense of second degree murder. He also

requested a manslaughter instruction, which the trial court

refused. Citing Beck v. Alabama, 447 U.S. 625, 638 (1980),

Gomez argues that this deprived him of due process.

State v. Anderson dealt with this very argument:

Anderson next argues that the denial of an aggravated
assault instruction deprived him of due process under
the rule of Beck v. Alabama, 447 U.S. 625 (1980).
Beck held unconstitutional an Alabama statute that
prohibited a trial court from instructing the jury on
any lesser included offense in a capital murder
prosecution. The Supreme Court found that such a
restriction might lead a jury to convict a defendant
of capital murder, despite jurors’ reasonable doubts,
merely because the jurors thought the defendant was
guilty of some crime and should therefore be punished.
Id. at 642-43.

The Supreme Court’s subsequent opinion in Schad v.
Arizona, 501 U.S. 624 (1991), shows that Beck is of no
avail to Anderson. In Schad, the defendant argued
that “the due process principles underlying Beck
require that the jury in a capital case be instructed
on every lesser included noncapital offense supported
by the evidence.” Id. at 646. The Court disagreed,
noting that its concern in Beck was the statute’s
“all-or-nothing” nature. Id. Because the jury in
Schad was given the option to convict the defendant of
a lesser offense, second-degree murder, and rejected
that option, the Supreme Court held that the trial
court’s refusal to instruct on robbery did not
implicate the Beck rule. Id. at 647-48.

210 Ariz. 327, 344 ¶¶ 63-64, 111 P.3d 369, 386 (2005).

¶29 Here, as in Anderson, the superior court instructed on

12
the immediately lesser included offense, but refused to instruct

on an additional lesser included offense. As in Anderson,

because the jury found the defendant guilty of the highest

offense, the Beck rule was not implicated, id. at ¶ 64, and the

jury “‘necessarily rejected all other lesser-included

offenses.’” State v. Vickers, 159 Ariz. 532, 542, 768 P.2d

1177, 1187 (1989) (quoting State v. White, 144 Ariz. 245, 247,

697 P.2d 328, 330 (1985)).

¶30 Gomez also argues that the evidence supports a

manslaughter instruction and one therefore should have been

given as a matter of state law. “[A] defendant is ‘entitled to

an instruction on any theory reasonably supported by evidence.’”

Anderson, 210 Ariz. at 343 ¶ 60, 111 P.3d at 385 (quoting State

v. LaGrand, 152 Ariz. 483, 487, 733 P.2d 1066, 1070 (1987)). It

“is fundamental error to omit such an instruction in a capital

case when it is supported by the evidence . . . .” State v.

Krone, 182 Ariz. 319, 323, 897 P.2d 621, 625 (1995).

¶31 Manslaughter is defined as “[c]ommitting second degree

murder . . . upon a sudden quarrel or heat of passion resulting

from adequate provocation by the victim.” A.R.S. § 13-

1103(A)(2) (2001). Gomez argues that the evidence could support

a finding that the killing was caused by a sudden quarrel or

heat of passion, citing both the testimony of the neighbor who

heard yelling and the victim’s extensive injuries.

13
¶32 Although a savage murder or evidence of an argument

may be indicative of a sudden quarrel or heat of passion, under

§ 13-1103(A)(2) the sudden quarrel or heat of passion must

result from adequate provocation by the victim. Adequate

provocation is defined as “conduct or circumstances sufficient

to deprive a reasonable person of self-control.” A.R.S. § 13-

1101(4) (2001). Gomez points to no evidence of such

provocation. Even if Joan refused Gomez’s sexual advances, such

actions would not deprive a reasonable person of self-control

and thus cannot rise to the level of adequate provocation. The

evidence here did not support a manslaughter instruction and the

court correctly refused to give one.

III.

¶33 At sentencing the trial judge stated:

I find in aggravation as to both Count 2 [kidnapping]
and Count 4 [sexual assault] that the defendant
inflicted much more force than that required to commit
those respective offenses. I find further that he
obstructed the criminal investigation by the Chandler
Police Department by lying to the police about the
circumstances of the blood occurring in his apartment,
which basically hindered their investigation. I find
that both aggravating circumstances are substantial
aggravating circumstances and call for the maximum
sentences as to Counts 2 and 4.

In addition, the jury specifically found that both the

kidnapping and sexual assault were dangerous offenses.6

6
The jury was instructed pursuant to A.R.S. § 13-604(I) that
dangerousness involves either “the intentional or knowing

14
¶34 Gomez argues that the superior court violated the rule

in Blakely v. Washington, 542 U.S. 296 (2004), by sentencing him

to aggravated terms on these non-capital counts based upon

factual findings neither made by the jury nor admitted by him.

Because Gomez did not object to judicial fact-finding of these

non-capital aggravators, we review only for fundamental error.

Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d at 607.

A.

¶35 Gomez received a sentence of twenty-one years for

kidnapping, a class 2 felony. Because the jury found the

kidnapping to be a dangerous offense, the superior court

presumably sentenced Gomez pursuant to A.R.S. § 13-604(I)

(2001),7 which governs sentencing for a first conviction of a

class 2 felony involving the use of a “dangerous instrument” or

the “intentional or knowing infliction of serious physical

injury.” Under A.R.S. § 13-604(I), the presumptive sentence is

ten and one-half years. The statute allows an aggravated

maximum sentence of twenty-one years upon the finding of an

aggravating circumstance pursuant to A.R.S. § 13-702(C) (2001).
__________________________________________
infliction of serious physical injury or the use or threatening
exhibition of a dangerous instrument.”
7
As we have previously emphasized, trial judges should
clearly identify the specific statute under which they are
sentencing a criminal defendant in order to facilitate appellate
review. State v. Anderson, 211 Ariz. 59, 61 ¶ 4 n.1, 116 P.3d
1219, 1221 n.1 (2005).

15
¶36 Neither of the two aggravating factors relied upon by

the superior court in imposing the aggravated twenty-one year

sentence was found by the jury or admitted by Gomez.8 The State

nonetheless argues that Blakely was satisfied because the “more

force than necessary” finding was inherent in the jury verdict.

See State v. Martinez, 210 Ariz. 578, 583 ¶ 16, 115 P.3d 618,

623 (2005) (finding no Sixth Amendment violation when one

aggravating factor is Blakely-compliant and others are found by

sentencing judge).9

¶37 The jury, however, was neither asked to determine how

much force was necessary to accomplish the kidnapping nor to

decide when that force was exerted. We therefore cannot

8
Neither of the two factors is expressly mentioned in § 13-
703(C). The superior court apparently relied on the “catch-all”
in former § 13-702(C)(18) (“Any other factor that the court
deems appropriate to the ends of justice”) in finding these
aggravating circumstances. Gomez does not object to the
findings of these two aggravators on the ground that they are
not specified in § 13-703(C) and we therefore do not address
that issue. See State v. Glassel, 211 Ariz. 33, 58 ¶ 103 n.18,
116 P.3d 1193, 1218 n.18 (2005) (declining to address this issue
when not raised).
9
The State correctly does not contend that the jury’s
dangerousness finding establishes the § 13-702(C)(1) “serious
physical injury” aggravator. This circumstance cannot be used
to aggravate a sentence when it has also “been utilized to
enhance the range of punishment under § 13-604.” A.R.S. § 13-
702(C)(1). Nor does the State argue that the § 13-702(C)(2)
aggravator (use of a dangerous instrument) has been established
by the dangerousness finding. See id. (providing that this
aggravator is not applicable when utilized to enhance a range of
punishment under § 13-604). We thus need not consider whether
the evidence in this case is sufficient to establish the use of
a dangerous instrument.

16
conclude that this aggravating circumstance was inherent in the

jury’s verdict. Because Gomez’s kidnapping sentence was

aggravated on the basis of this factor, we find fundamental

error and remand for resentencing. See Henderson, 210 Ariz. at

568 ¶¶ 25-26, 115 P.3d at 608 (finding Blakely error fundamental

when defendant receives longer sentence than he would have

received in absence of such error).

B.

¶38 In contrast, we find no error in the sexual assault

sentence of fourteen years. Sentencing for sexual assault is

not governed by the general scheme in A.R.S. § 13-702(A)(1)

governing class 2 felonies. Instead, A.R.S. § 13-1406(B) (2001)

provides a presumptive sentence of seven years for sexual

assault for a first offense; the potential penalty is fourteen

years upon the finding of a single aggravator. A.R.S. § 13-

1406(B). The jury finding of dangerousness established the §

13-702(C)(1) “serious physical injury” aggravating factor, and

there thus was no Blakely error.10

IV.

A.

¶39 Gomez represented himself during the aggravation and

penalty phases of the trial and elected to wear prison garb

10
Because the dangerousness finding was not used to enhance
the sentencing range for sexual assault, § 13-702(C)(1) does not
prohibit its use as an aggravator.

17
throughout these phases. The superior court required Gomez to

wear shackles in these proceedings, which were held before a

jury. Gomez objected to the shackling and argues on appeal that

the superior court erred in overruling that objection.

¶40 The United States Supreme Court has recently addressed

this very issue in Deck v. Missouri, 125 S. Ct. 2007 (2005),

holding that

courts cannot routinely place defendants in shackles
or other physical restraints visible to the jury
during the penalty phase of a capital proceeding. The
constitutional requirement, however, is not absolute.
It permits a judge, in the exercise of his or her
discretion, to take account of special circumstances,
including security concerns, that may call for
shackling. In doing so, it accommodates the important
need to protect the courtroom and its occupants. But
any such determination must be case specific; that is
to say, it should reflect particular concerns, say
special security needs or escape risks, related to the
defendant on trial.

Id. at 2014-15.

¶41 In Deck, the defendant was visibly shackled during the

sentencing phases of a capital murder case. Id. at 2010. The

Court began by noting that “[t]he law has long forbidden routine

use of visible shackles during the guilt phase; it permits a

State to shackle a criminal defendant only in the presence of

special need.” Id. During that phase, the Court noted, “a

criminal defendant has a right to remain free of physical

restraints that are visible to the jury . . . .” Id. at 2012.

“[A]bsent a trial court determination . . . that [shackles] are

18
justified by a state interest specific to a particular trial,”

such as security concerns or risk of escape, the use of visible

physical restraints is prohibited. Id.

¶42 Deck considered for the first time whether the general

rule against shackling during the guilt phase should be extended

to the sentencing phases of a capital proceeding held before a

jury. The Court held that “[t]he considerations that militate

against the routine use of visible shackles during the guilt

phase of a criminal trial apply with like force to penalty

proceedings in capital cases” because the decision between life

and death is “no less important than the decision about guilt.”

Id. at 2014. The Court emphasized that “[t]he appearance of the

offender during the penalty phase in shackles . . . almost

inevitably implies to the jury, as a matter of common sense,

that court authorities consider the offender a danger to the

community” and that shackling “almost inevitably affects

adversely the jury’s perception of the character of the

defendant.” Id.

¶43 As in the case of guilt proceedings, the Court noted,

the defendant’s constitutional right to be free of shackles

visible to the jury during capital sentencing proceedings “is

not absolute.” Id. at 2014. As he may during the guilt phase,

a trial judge may order shackling in light of “special

circumstances” during the sentencing proceedings. Id. at 2015.

19
But, as in the guilt phase, the Court stressed, such a

determination must be “case specific” and reflect “particular

concerns” relating to the defendant on trial. Id.

¶44 The United States Supreme Court found the visible

shackling of Deck unconstitutional because the record contained

no “formal or informal findings” indicating that the trial judge

had required shackling in response to security or decorum

concerns. Id. Nor could the Court conclude that this was “an

exceptional case where the record itself makes clear that there

are indisputably good reasons for shackling.” Id. In the

absence of such a record, the Court held that “the defendant

need not demonstrate actual prejudice to make out a due process

violation.” Id. Rather, it is the state’s burden to prove

beyond a reasonable doubt that the shackling error did not

contribute to the sentence. Id.

¶45 Deck was decided after the aggravation and penalty

phases of the trial below. Newly declared constitutional rules,

however, apply to criminal cases pending on direct review.

Griffith v. Kentucky, 479 U.S. 314, 322 (1987). Given the

timing of the Deck decision, the superior court understandably

did not make any findings as to why Gomez should be shackled.

Thus, our inquiry is whether this is an “exceptional case where

the record itself makes clear that there are indisputably good

reasons for shackling.” Deck, 125 S. Ct. at 2015.

20
¶46 The State argues that the shackling was justified

because Gomez was convicted of a capital crime, had numerous

disciplinary reports while in jail, and was excluded from the

courtroom briefly during a prior motion proceeding. The State,

however, presented no such arguments below. Rather, it stood

silent during the argument over Gomez’s objection to shackling;

the colloquy over the objection involved only Gomez, the trial

judge, and a deputy sheriff. In any event, we are unable to

conclude on this record that these justifications demonstrate

“indisputably good reasons” for shackling.

¶47 As an initial matter, we note that Gomez’s conviction

for a capital crime cannot by itself justify shackling; Deck is

precisely to the contrary. 125 S. Ct. at 2015. The superior

court was not presented with any evidence of Gomez’s

disciplinary problems in jail until the rebuttal portion of the

sentencing phase, some twenty days after the trial judge

overruled Gomez’s objection to the shackling; these incidents

therefore played no role in the shackling decision. Nor can the

fact that Gomez was earlier excluded from the courtroom justify

shackling. That exclusion was the result of a refusal to

cooperate with the court after a motion for change of judge was

denied. The record contains no evidence of security concerns

arising from that exclusion, nor is there any indication that

the trial court relied upon that exclusion in its shackling

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decision.

¶48 Rather, the record makes plain that the trial court

allowed shackling not because of “case specific” security

concerns about Gomez, but rather because shackling of all

defendants in prison garb was required by jail policy. The

entire record with respect to the issue is as follows:

MR. RAYNAK [advisory counsel]: Your honor, I’m sorry.
Can we just—Mr. Gomez had one issue that I think is a
viable issue. I know he’s in his jail clothing, but
he’s also in chains. If he was dressed out, he
wouldn’t be in chains. So, I mean, I understand he
chose to do the jail uniform. That’s not the issue,
but, you know, he’s walking up in front of the jury in
chains.

THE COURT: Mr. Raynak, once again, if Mr. Gomez has
an issue, he’s going to present it to me himself.
You’re not representing him other than advisory
counsel.
So, Mr. Gomez, state your position.

MR. GOMEZ: Well, Your Honor, I agree with Mr. Raynak.
I’m wearing this.

THE COURT: The jury’s not going to see that.

MR. GOMEZ: I ain’t going nowhere. So, I would
appreciate if I can ask for freedom.

THE COURT: Deputy, what’s your position?

THE DEPUTY: Judge, typically if they’re dressed out
in stripes, the only thing I’m supposed to allow them
is one hand free, but since he’s pro per, I chose to
get rid of the chains, the belly chains that he’s
normally supposed to wear and use the belt instead,
but I left the leg irons on there because policy says
they get one hand free if the judge asks for it, but I
disregarded that and allowed him even more freedom.

THE COURT: All right. Your request to have the

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 chains removed is denied, Mr. Gomez, but I will
instruct the jury that they’re not to consider that
fact in any respect as part of their deliberations in
this case.

¶49 Deck prohibits the routine shackling of defendants. A

decision based solely on a general jail policy of shackling

defendants who wear jail garb or exercise their constitutional

right to represent themselves11 is clearly not the kind of “case

specific” determination of “particular concerns” that Deck

requires. On the record before us, we must therefore conclude

that the superior court erred in requiring Gomez to wear

shackles.

¶50 The State argues that the shackles were not visible to

the jury, and thus any error was harmless. The record, however,

does not bear out this contention. While the trial judge did

state at one point that “[t]he jury’s not going to see that,” he

shortly thereafter offered to instruct the jury “not to

consider” what he called “the chains.” It is clear that Gomez

moved about before the jury during the sentencing proceedings,

and we are therefore unable to conclude that what the deputy

sheriff referred to as “leg irons” and what both the judge and

advisory counsel referred to as “chains” were not visible to the

jury during the aggravation and sentencing phases.

11
See Faretta v. California, 422 U.S. 806 (1975) (holding
that a defendant has the constitutional right to waive
assistance of counsel and represent himself).

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¶51 In the end, it is the state’s burden to prove any

shackling error harmless beyond a reasonable doubt. Deck, 125

S. Ct. at 2015. On this record, the State has not carried this

burden. Deck therefore compels us to vacate the death sentence

and remand for new sentencing proceedings.

B.

¶52 Because of our disposition of the shackling issue, it

is unnecessary for us to address the remaining arguments raised

by Gomez with respect to imposition of the death sentence.

Despite Gomez’s suggestion, we decline to address whether the

superior court erred in allowing him to represent himself during

the aggravation and penalty phases of the trial. Because Gomez

allowed advisory counsel to give the closing argument in the

penalty phase and was represented by counsel during arguments on

his motion for a new trial and on appeal, he revoked his waiver

of counsel. Should Gomez again attempt such a waiver on remand,

the superior court can then assess his current competence to do

so and determine whether the waiver is voluntary and

intelligently made.

V.

¶53 For the foregoing reasons, we affirm Gomez’s

convictions for first degree murder, sexual assault, and

kidnapping, and the aggravated sentence for sexual assault. We

vacate the sentence of death for first degree murder and the

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aggravated sentence for kidnapping, and remand for further

proceedings consistent with this opinion.

____
Andrew D. Hurwitz, Justice

CONCURRING:

____
Ruth V. McGregor, Chief Justice

_________
Rebecca White Berch, Vice Chief Justice

____
Michael D. Ryan, Justice

____
W. Scott Bales, Justice

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