State v. GUNCHES

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-08-0038-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2003-038541
AARON BRIAN GUNCHES, )
)
Appellant. )
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Rosa Mroz, Judge

AFFIRMED IN PART, VACATED IN PART, AND REMANDED
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Jonathan Bass, Assistant Attorney General Tucson
Attorneys for State of Arizona

MARICOPA COUNTY LEGAL DEFENDER'S OFFICE Phoenix
By Brent E. Graham, Legal Defender
Attorney for Aaron Brian Gunches
________________________________________________________________

B A L E S, Justice

¶1 Aaron Brian Gunches pleaded guilty to kidnapping and

first degree murder and was sentenced to death for the murder.

We have jurisdiction over this mandatory appeal under Article 6,

Section 5(3) of the Arizona Constitution and Arizona Revised

Statutes (“A.R.S.”) sections 13-4031 and 13-4033(A)(1) (2010).

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 FACTUAL AND PROCEDURAL BACKGROUND1

¶2 In November 2002, Ted Price visited his ex-wife,

Katherine Lecher, in Mesa, Arizona. Price planned to stay at

Lecher’s apartment while waiting for a school grant. After

about ten days, the two began fighting and Lecher told Price to

leave. The argument became increasingly heated and Lecher hit

Price in the face with a telephone. Price remained conscious

but appeared dazed and unresponsive.

¶3 Gunches came to the apartment that evening. After

talking with Lecher, he asked her two roommates, Michelle Beck

and Jennifer Garcia, to put Price and his belongings into

Lecher’s car so Gunches could take him to the bus station.

Gunches told Garcia to drive. Once at the station, Gunches said

he did not have enough money for a bus ticket. He ordered

Garcia to drive out of Mesa. Soon thereafter, he told her to

turn onto a dirt path and to drive toward a dark, isolated

desert area.

¶4 Garcia stopped the car. While Gunches was looking in

the trunk, Price got out. Garcia then heard three popping

sounds and saw Price fall to the ground; after hearing another

popping sound, she saw Gunches standing by Price’s body with a

1
We view the facts in the light most favorable to sustaining
the jury’s verdicts. See State v. Garza, 216 Ariz. 56, 61 n.1,
163 P.3d 1006, 1011 n.1 (2007). 
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gun at his side. Gunches got into the car, and Garcia drove

back to Mesa, stopping once to dispose of Price’s belongings in

a dumpster.

¶5 Price’s body was discovered several days later. After

Price was identified, detectives interviewed Lecher, Beck, and

Garcia. Beck said that Gunches told her that he had killed

Price. While the investigation continued, Gunches was arrested

in La Paz County for shooting at a law enforcement officer. He

later pleaded guilty to attempted murder for that incident. The

authorities matched the weapon used in the La Paz County

shooting with projectiles recovered from Price’s body and

projectiles and a shell casing recovered from the murder scene.

¶6 In October 2003, Gunches was indicted for the first

degree murder and kidnapping of Price. Gunches was found

competent to stand trial in November 2005 and competent to waive

his right to counsel in November 2007. He subsequently pleaded

guilty to both counts. Based on the La Paz County conviction,

Gunches stipulated during the aggravation phase that he had

previously been convicted of a serious offense under A.R.S.

§ 13-751(F)(2) (2010). The jury also found that Price’s murder

was committed in an especially heinous or depraved manner, see

id. § 13-751(F)(6). Gunches presented virtually no mitigation

evidence during the penalty phase (an objection was sustained to

the only question he asked his one mitigation witness), but
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requested leniency in allocution. The jury determined that he

should be sentenced to death.

DISCUSSION

¶7 Gunches raises nine issues on appeal and also lists

twenty-two other constitutional challenges to Arizona’s death

penalty that he acknowledges this Court has previously rejected.

As explained below, we reject Gunches’s argument that the trial

court erred in finding him competent to waive counsel. Because

we conclude that the jury’s erroneous finding of an aggravating

circumstance requires retrial of the penalty phase, we do not

address Gunches’s other arguments regarding the death penalty.

I. Competency to Waive Counsel

¶8 Gunches argues that the trial court violated his due

process rights by finding him competent to waive counsel and

allowing him to represent himself. We review a trial court’s

determination that a defendant has knowingly, intelligently, and

voluntarily waived counsel for an abuse of discretion. State v.

Dann, 220 Ariz. 351, 360 ¶ 25, 207 P.3d 604, 613 (2009).

¶9 Although “[t]he federal and state constitutions

guarantee [a defendant] the right to waive counsel and to

represent [him]self,” id. at 359 ¶ 16, 207 P.3d at 612, a

mentally incompetent defendant cannot validly waive the right to

counsel, State v. Djerf, 191 Ariz. 583, 591 ¶ 21, 959 P.2d 1274,

1282 (1998). Under the Due Process Clause of the Fourteenth
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Amendment, the competency standard for waiving the right to

counsel is the same as the competency standard for standing

trial. See Godinez v. Moran, 509 U.S. 389, 399 (1993). A

defendant is competent to stand trial if he has “sufficient

present ability to consult with his lawyer with a reasonable

degree of rational understanding” and a “rational as well as

factual understanding of the proceedings against him.” Dusky v.

United States, 362 U.S. 402, 402 (1960) (internal quotation

marks omitted).

¶10 Gunches does not claim that the trial court erred in

finding him competent to stand trial. He instead relies on

Indiana v. Edwards, 128 S. Ct. 2379, 2388 (2008), in which the

Supreme Court held that “the Constitution permits [s]tates to

insist upon representation by counsel for those competent enough

to stand trial under Dusky but who still suffer from severe

mental illness to the point where they are not competent to

conduct trial proceedings by themselves.” Edwards recognized

that some “gray-area” defendants may be competent to stand trial

but “unable to carry out the basic tasks needed to present

[their] own defense[s] without the help of counsel.” Id. at

2386.

¶11 Edwards, however, does not suggest the trial court

erred by allowing Gunches to represent himself. Edwards allows,

but does not require, states to insist upon representation by
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counsel for certain “gray-area” defendants. It does not give

such a defendant a constitutional right to have his request for

self-representation denied. Moreover, even assuming that

Arizona courts would apply a heightened standard of competency

for such defendants to waive counsel (an issue we need not

decide here), we find no error in the trial court’s allowing

Gunches to represent himself.

¶12 Gunches was not a “gray-area” defendant “unable to

carry out the basic tasks needed to present his own defense

without the help of counsel.” Id. Three doctors found Gunches

competent to stand trial, and another specifically found him

competent to waive counsel. The trial court engaged Gunches in

several colloquies regarding his choice to represent himself,

and Gunches was assisted by advisory counsel. Although Gunches

pleaded guilty, admitted one aggravator, and did not introduce

mitigation evidence, he made a coherent opening statement and

closing argument during the aggravation phase, cross-examined

all of the State’s witnesses, made objections, and made a Rule

20 motion as to the (F)(6) aggravator. Thus, even under the

heightened competency standard allowed by Edwards, the trial

court did not abuse its discretion in finding Gunches competent

to waive counsel and represent himself.

II. Sufficiency of Evidence to Support (F)(6) Aggravator

¶13 Gunches argues that the State failed to prove the
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(F)(6) aggravator beyond a reasonable doubt. Because Price’s

murder occurred after August 1, 2002, we do not independently

review the jury’s finding of this aggravator, but instead

consider whether the jury abused its discretion. See A.R.S.

§ 13-756(A) (2010).

¶14 In reviewing a sufficiency of the evidence claim under

the abuse of discretion standard, we “review[] the record to

determine whether substantial evidence supports the jury’s

finding, viewing the facts in the light most favorable to

sustaining the jury verdict.” State v. Roque, 213 Ariz. 193,

218 ¶ 93, 141 P.3d 368, 393 (2006). “Substantial evidence is

such proof that reasonable persons could accept as adequate and

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

beyond a reasonable doubt.” Id. (internal quotation marks

omitted).

¶15 Under A.R.S. § 13-751(F)(6), a first degree murder is

aggravated when “[t]he defendant committed the offense in an

especially heinous, cruel or depraved manner.” The jury here

did not find the murder especially cruel, but did find it

especially heinous or depraved. “Heinousness and depravity go

to a defendant’s mental state as reflected in his words and

actions at or near the time of the offense.” State v. Johnson,

212 Ariz. 425, 439 ¶ 55, 133 P.3d 735, 749 (2006). Five factors

are generally relevant in determining “whether a killing was
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especially heinous or depraved: (1) relishing the murder, (2)

infliction of gratuitous violence, (3) needless mutilation of

the victim, (4) senselessness of the crime, and (5) helplessness

of the victim.” State v. Bocharski, 218 Ariz. 476, 493 ¶ 83,

189 P.3d 403, 420 (2008) (citing State v. Gretzler, 135 Ariz.

42, 51-52, 659 P.2d 1, 10-11 (1983)).

¶16 The State alleged three factors: (1) Gunches inflicted

gratuitous violence beyond that necessary to kill; (2) Price’s

murder was senseless; and (3) Price was helpless. Gunches does

not seriously contest the jury’s findings of senselessness or

helplessness. However, “senselessness and helplessness, without

more, generally do not render a killing especially heinous or

depraved.” State v. Wallace, 219 Ariz. 1, 6 ¶ 25, 191 P.3d 164,

169 (2008). Thus, the State here must also prove gratuitous

violence. To do so, the State must establish that the defendant

(1) “inflicted more violence than that necessary to kill,” and

(2) “continued to inflict violence after he knew or should have

known that a fatal action had occurred.” Bocharski, 218 Ariz.

at 494 ¶¶ 86-87, 189 P.3d at 421.

¶17 The record contains substantial evidence that Gunches

inflicted more violence than was necessary to kill. The medical

examiner testified that Price was shot four times, suffering

three gunshot wounds to the chest and one to the back of the

head. Each wound, the examiner concluded, ultimately would have
8
been fatal.

¶18 The record, however, does not support the jury’s

finding that Gunches acted with the “necessary vile state of

mind.” Id. at 494 ¶ 85, 189 P.3d at 421. Garcia testified that

on the night of the murder, she heard three popping sounds

before seeing Price fall to the ground, and then heard a fourth

popping sound and saw Gunches standing by Price’s body. She

said that these events “happened . . . fast.” Garcia also

testified that the murder occurred after dark, that she had

turned off the car’s headlights, and that she could “[b]arely

[see] at all.”

¶19 Detectives found Price laying on his right side, and

photographs taken of Price’s body suggest that the draping of

his left arm may have obscured the gunshot wounds to his chest.

The medical examiner testified that there was no evidence of

“gunpowder, stippling or soot deposit” on Price’s body to

suggest close-range firing, and concluded that the shots came

from a distance of at least two feet. Garcia testified that

Gunches was even further away from Price when the first three

shots occurred.

¶20 Given these circumstances, there is insufficient

evidence to establish beyond a reasonable doubt that Gunches

knew or should have known that he had fired a fatal shot and yet

continued to inflict violence. Instead, the more plausible
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inference is that after firing three shots in quick succession

from a distance of several feet, Gunches was unable, given

Price’s body position and the darkness of the night, to discern

whether Price was dead or dying before he shortly thereafter

fired the final shot to Price’s head.

¶21 Indeed, Garcia testified that she heard Price

breathing after he fell to the ground, and the investigating

detective found evidence of aspiration around Price’s mouth,

suggesting that he continued to “breathe a couple of times”

while on the ground. The medical examiner also testified that

he found a liter of blood inside Price’s chest and abdominal

cavities, indicating that his heart continued “[to beat] for a

while” after the shooting.

¶22 Even when viewed in the light most favorable to

sustaining the verdict, the evidence suggests that Price’s final

shot “came in an attempt . . . to kill the victim, not to engage

in violence beyond that necessary to kill.” Wallace, 219 Ariz.

at 8 ¶ 37, 191 P.3d at 171 (quoting State v. Anderson, 210 Ariz.

327, 355 ¶ 123, 111 P.3d 369, 397 (2005)); see, e.g., State v.

Cañez, 202 Ariz. 133, 161-62 ¶ 106, 42 P.3d 564, 592-93 (2002)

(finding no gratuitous violence because defendant “merely

escalated his attacks until he succeeded in killing [victim]”).

¶23 The jury’s verdict on the (F)(6) aggravator was

therefore in error. The State, however, argues that any error
10
was harmless because Gunches stipulated that he had previously

been convicted of a serious offense under A.R.S. § 13-751(F)(2)

and he presented virtually no mitigation in the penalty phase.

¶24 We disagree. For an error to be harmless, the State

must establish beyond a reasonable doubt that the error did not

contribute to or affect the verdict. “The inquiry . . . is not

whether, in a trial that occurred without the error, a guilty

verdict would surely have been rendered, but whether the guilty

verdict actually rendered in this trial was surely

unattributable to the error.” State v. Anthony, 218 Ariz. 439,

446 ¶ 39, 189 P.3d 366, 373 (2008) (internal quotation marks

omitted).

¶25 The State cannot discharge its burden here. In its

penalty phase opening statement and closing argument, the State

reminded the jury of its aggravation phase verdict that Price’s

murder was heinous or depraved and called attention to the fact

that the jury had previously found gratuitous violence. It

further emphasized that in some cases, the “aggravating

circumstances . . . are so heinous and so outrageous that the

ultimate penalty is warranted,” and argued that “[t]his case is

one of them.” Thus, even with the (F)(2) aggravator, we cannot

conclude beyond a reasonable doubt that the jury’s flawed (F)(6)

finding did not contribute to or affect its ultimate conclusion

that Gunches deserved death. Accordingly, we vacate Gunches’s
11
death sentence and remand for a new penalty phase proceeding.

See A.R.S. § 13-756(B) (requiring remand for resentencing when

an error is made in capital sentencing proceedings “[i]f the

supreme court cannot determine whether the error was harmless

beyond a reasonable doubt”).

CONCLUSION

¶26 For the foregoing reasons, we affirm Gunches’s

convictions for kidnapping and first degree murder and the

presumptive sentence imposed on the kidnapping charge. We

vacate the sentence of death for first degree murder and remand

for a new penalty phase proceeding.

_____________________________________
W. Scott Bales, Justice

CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

_____________________________________
Michael D. Ryan, Justice

_____________________________________
A. John Pelander, Justice

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