State of Arizona v. Ronnie Lovelle Joseph

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-10-0138-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2005-014235-001
RONNIE LOVELLE JOSEPH, )
)
Appellant. ) O P I N I O N
_________________________________ )

Appeal from the Superior Court in Maricopa County
The Honorable Arthur T. Anderson, Judge

AFFIRMED
________________________________________________________________

THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
Amy Pignatella Cain, Tucson
Assistant Attorney General
Jeffrey A. Zick, Phoenix
Assistant Attorney General
Attorneys for State of Arizona

MICHAEL J. DEW ATTORNEY AT LAW Phoenix
By Michael J. Dew
Attorney for Ronnie Lovelle Joseph
________________________________________________________________

B E R C H, Chief Justice

¶1 A jury found Ronnie Lovelle Joseph guilty of felony

murder and other crimes. He was sentenced to death for the

murder and to prison terms on the other convictions. We have

jurisdiction over this automatic appeal under Article 6, Section

5(3) of the Arizona Constitution and A.R.S. § 13–4031 (2010).

I. FACTS AND PROCEDURAL HISTORY1

¶2 Ronnie Joseph went to the apartment where his wife,

Darlene Brown, lived with Jerry Roundtree and her fourteen-year-

old nephew, Tommar Brown. Joseph and Darlene began to argue in

Darlene’s locked bedroom, and Joseph pulled a gun and shot her.

Jerry kicked open the bedroom door, but turned and ran when he

saw Joseph holding a gun. Joseph shot at him, hitting him in

the hand.

¶3 As Jerry fled, he saw Tommar go into the bathroom.

Joseph pushed open the bathroom door and fired two or three

shots, hitting Tommar in his left buttock and chest. The shot

to Tommar’s chest passed through his heart, killing him.

¶4 Joseph saw Jerry near the front door of the apartment

and shot him in the chest before returning to Darlene’s bedroom

and firing a few more shots, at least two of which hit Darlene.

Joseph then fled.

¶5 When police arrived, both Darlene and Jerry identified

Joseph as the shooter. Police apprehended Joseph three days

later.

¶6 The jury found Joseph guilty of the first degree murder

of Tommar, attempted second degree murder of Darlene, attempted

first degree murder of Jerry, first degree burglary, and

1
We view the facts in the light most favorable to sustaining
the jury’s verdict. State v. Dann, 205 Ariz. 557, 562 n.1, 74
P.3d 231, 236 n.1 (2003).
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misconduct involving weapons. In the aggravation phase of the

trial, the jury found two aggravating factors: Joseph

previously had been convicted of a serious offense, A.R.S. § 13-

751(F)(2) (2010), and the victim was less than fifteen years

old, id. § 13-751(F)(9). Joseph did not present any mitigating

evidence in the penalty phase, and the jury determined that he

should be sentenced to death for Tommar’s murder. The trial

judge imposed prison terms for the other convictions.

II. ISSUES ON APPEAL

A. Confrontation Clause

¶7 To prepare for his testimony, the State’s medical

expert, Dr. Philip Keen, reviewed Tommar’s autopsy report, which

Dr. Ruth Kohlmeier had prepared. Dr. Kohlmeier did not testify

and the report itself was not admitted into evidence. Joseph

asserts that the trial court violated his Sixth Amendment right

to confront Dr. Kohlmeier when, over his objection, it allowed

Dr. Keen to testify based on Dr. Kohlmeier’s report. We review

de novo whether the admission of evidence violates the

Confrontation Clause. See State v. Smith, 215 Ariz. 221, 228

¶ 20, 159 P.3d 531, 538 (2007).

¶8 This Court has previously held that a testifying

medical examiner may offer an opinion based on an autopsy

performed by a non-testifying expert without violating the

Confrontation Clause. Id. at 229 ¶ 26, 159 P.3d at 539; see

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also State v. Tucker, 215 Ariz. 298, 315 ¶ 62, 160 P.3d 177, 194

(2007). We reasoned that “[b]ecause the facts underlying an

expert’s opinion are admissible only to show the basis of that

opinion and not to prove their truth, an expert does not admit

hearsay or violate the Confrontation Clause by revealing the

substance of a non-testifying expert’s opinion.” Tucker, 215

Ariz. at 315 ¶ 62, 160 P.3d at 194. Joseph presents no argument

persuading us to abandon this reasoning today.

¶9 Joseph asserts that Dr. Keen’s testimony

“constructively placed [the autopsy report] before the jury,”

making the report like the affidavit of the non-testifying

witness in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009).

But this case differs in two material respects from Melendez-

Diaz. Here, the court did not admit the autopsy report into

evidence and the State presented testimony by a witness subject

to cross-examination.

¶10 Even if the autopsy report were itself “testimonial,”

Dr. Keen did not testify to any of Dr. Kohlmeier’s conclusions.

Cf. United States v. Feliz, 467 F.3d 227, 236 (2d Cir. 2006)

(stating that autopsy reports are not testimonial because they

are not prepared for purposes of litigation). He testified

instead to opinions he formed after reviewing facts and

photographs contained in the report. See State v. Dixon, 226

Ariz. 545, 553 ¶¶ 36-37, 250 P.3d 1174, 1182 (2011) (finding no

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error when medical examiner testified based on his review of an

autopsy report and photographs).

¶11 Joseph also argues that the State’s failure to

establish Dr. Kohlmeier’s unavailability violated his right to

confrontation. Before testimonial statements of an absent

witness may be admitted into evidence, the Confrontation Clause

requires a showing that the witness is unavailable and that the

defendant had a prior opportunity for cross-examination.

Bullcoming v. New Mexico, 131 S. Ct. 2705, 2713 (2011). But

here, no testimonial “statement” by Dr. Kohlmeier was admitted

into evidence. The report itself was not admitted and Dr. Keen

did not testify to any of Dr. Kohlmeier’s conclusions. Instead,

Dr. Keen testified to his own conclusions regarding Tommar’s

injuries and did not act as a mere “conduit” for Dr. Kohlmeier’s

opinions. See State v. Snelling, 225 Ariz. 182, 187 ¶ 19, 236

P.3d 409, 414 (2010). Thus, there was no error.

¶12 Finally, Joseph argues that the trial court abused its

discretion by denying his motion to limit Dr. Keen’s testimony

and failing to instruct the jury not to consider the facts

recited by Dr. Keen for their truth. But in Smith, this Court

concluded that “[e]xpert testimony that discusses reports and

opinions of another is admissible under [Arizona Rule of

Evidence 703] if the expert reasonably relied on these matters

in reaching his own conclusion.” 215 Ariz. at 228 ¶ 23, 159

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P.3d at 538; see also Williams v. Illinois, 132 S. Ct. 2221,

2228 (2012) (“Out-of-court statements that are related by the

expert solely for the purpose of explaining the assumptions on

which that opinion rests are not offered for their truth and

thus fall outside the scope of the Confrontation Clause.”)

(plurality opinion). Similarly, testimony regarding an autopsy

photograph is not hearsay when offered to show the basis of the

testifying expert’s opinion and not to prove the truth of prior

reports or opinions. Smith, 215 Ariz. at 228 ¶ 23, 159 P.3d at

538.

¶13 The trial court did not err in permitting Dr. Keen to

testify about the basis for his conclusions regarding Tommar’s

injuries and cause of death. Dr. Keen’s testimony did not

exceed its permissible scope, and he did not offer any matters

contained in Dr. Kohlmeier’s autopsy report to show their truth.

Although the trial court might properly have given a limiting

instruction regarding the use of Dr. Keen’s testimony, Joseph

did not request one and the failure to give it was not

fundamental error.

B. Enmund/Tison Instructions

¶14 Joseph contends that the trial court erred by denying

his request for an Enmund/Tison jury instruction at the

aggravation phase of trial. We review a trial court’s refusal

to give requested instructions for an abuse of discretion.

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State v. Johnson, 212 Ariz. 425, 431 ¶ 15, 133 P.3d 735, 741

(2006).

¶15 The jury found Joseph guilty of felony murder for

killing Tommar during the course of a burglary. The Eighth

Amendment does not allow the death penalty to be imposed for

felony murder unless the defendant “himself kill[s], attempt[s]

to kill, or intend[s] that a killing take place or that lethal

force will be employed,” Enmund v. Florida, 458 U.S. 782, 797

(1982), or is a major participant in the crime and acts with

reckless indifference, Tison v. Arizona, 481 U.S. 137, 157-58

(1987). Joseph does not dispute that he acted alone in killing

Tommar. Because Enmund allows imposition of capital punishment

on a defendant who actually kills a victim in the course of

committing another felony, 458 U.S. at 797-98, the Eighth

Amendment did not require that an Enmund/Tison instruction be

given.

¶16 Joseph nonetheless asserts that the State failed to

present sufficient evidence of his intent to kill to support

imposition of the death penalty. He argues that because the

felony murder instruction required only a finding that he caused

Tommar’s death during the course of the felony, without

reference to any mental state, the one juror who voted for

felony murder but not premeditated murder might have believed

that Joseph unintentionally killed Tommar, and such intent

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cannot suffice to support the death penalty.

¶17 Joseph misapprehends the Enmund/Tison requirements. A

defendant convicted of felony murder may receive a death

sentence regardless of his intent if he actually kills a victim

during the course of a felony, or if he is a major participant

along with others in committing the felony and “acts with

reckless indifference to human life.” State v. Garcia, 224

Ariz. 1, 15 ¶ 55, 226 P.3d 370, 384 (2010) (citing Tison, 481

U.S. at 158).

¶18 Here, the jury found Joseph guilty of felony murder

because he fatally shot Tommar during the course of first degree

burglary. The burglary was established because Joseph brought a

gun into the apartment and remained there unlawfully, intending

to commit the attempted murders at issue. See A.R.S. §§ 13-

1507, -1508 (2010). Sufficient evidence supports the felony

murder finding. Enmund required the State to show only that,

during the commission of a felony, Joseph personally killed

Tommar, a fact that is not in dispute. The State must show

“reckless indifference” to human life only when the defendant is

a major participant in the felony, but is not the actual killer.

See Garcia, 224 Ariz. at 15 ¶ 55, 226 P.3d at 384 (because the

defendant was convicted under Tison, the State had to prove

beyond a reasonable doubt that he had acted as a major

participant in the crime and was recklessly indifferent to the

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victim’s life); State v. Bearup, 221 Ariz. 163, 170 ¶ 33, 211

P.3d 684, 691 (2009) (same); accord People v. Letner, 235 P.3d

62, 132 (Cal. 2010) (rejecting argument that death sentence

cannot be imposed on actual killer convicted of felony murder

absent finding that defendant was a major participant and had a

culpable mental state). Joseph does not dispute that he shot

and killed Tommar during the commission of a felony. Thus,

there is sufficient evidence to support the imposition of the

death penalty. The trial court did not abuse its discretion by

not giving an Enmund/Tison instruction in this case.

C. Waiver of Mitigation

¶19 Joseph argues that his waiver of the right to present

mitigating evidence was “constitutionally invalid” because he

did not make his waiver knowingly, voluntarily, and

intelligently.

¶20 Although a defendant has a “constitutionally protected

right[] to provide the jury with the mitigating evidence,”

Williams v. Taylor, 529 U.S. 362, 393 (2000), he may waive that

right even if mitigating evidence exists, see Schriro v.

Landrigan, 550 U.S. 465, 476 (2007); accord State v. Hausner,

___ Ariz. ___, ___ ¶¶ 121-22, ___ P.3d ___, ___ (2012); State v.

Delahanty, 226 Ariz. 502, 507-08 ¶¶ 28-34, 250 P.3d 1131, 1136-

37 (2011). The Supreme Court has never imposed an “informed and

knowing” requirement upon a defendant’s decision to waive

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mitigating evidence, Landrigan, 550 U.S. at 479, but this Court

requires a voluntary, knowing, and informed waiver of this

important constitutional right, see Delahanty, 226 Ariz. at 504

¶ 5, 508 ¶ 34, 250 P.3d at 1133, 1137.

¶21 We recently addressed this issue in detail in Hausner,

___ Ariz. at ___ ¶ 122, ___ P.3d at ___, and there set forth the

inquiries that the trial court should make to determine that the

defendant (1) understands what mitigation is, the right to

present mitigation evidence, and the consequences of waiving

that right, and (2) makes the decision voluntarily.

¶22 The trial judge here took many of the steps recommended

in Hausner and repeatedly had Joseph confirm that he understood

his rights and yet chose not to present any mitigating evidence.

For example, during a status conference after the guilt phase,

the judge explained the penalty phase and what mitigation might

entail:

As you know, that is the time where the jury considers
any mitigation evidence they may have found [in] the
case thus far, and any mitigating evidence they might
find during the mitigation or penalty phase itself.
And as I indicated before, it’s a pretty wide open
presentation. There could be witnesses that could be
called on your behalf. You can speak on your behalf.
You can also submit something in writing, if you
choose, to alert the jury to any factors that you
believe are mitigating; or in other words, to have
them render a finding that leniency would be
appropriate here.

Joseph replied that he wanted to waive his right to mitigation.

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After continued discussion, the court reminded Joseph that he

could do as he chose, but cautioned that the court had to ensure

that Joseph understood his rights.

¶23 The trial court explained mitigation to Joseph at

length. Joseph demonstrated that he understood the consequences

of the penalty phase by giving such responses as, “there’s no

mitigation circumstances that I would ask you to feel pity or

mercy on me. Let the hatchet fall.” His statements satisfied

the “knowing” requirement. Joseph also stated that “death don’t

scare me,” reflecting his understanding that his case could

result in a death sentence and that he could ask the jury for

“pity or mercy” if he so desired. The court found Joseph

competent and detailed its reasons for allowing Joseph to waive

mitigation.

¶24 Joseph repeatedly expressed his desire not to present

mitigating evidence. Although defense counsel notified the

court pursuant to Rule 15.2(h) of certain mitigating

circumstances that might have helped Joseph’s case and later

made an offer of proof of mitigating circumstances, Joseph

voluntarily refused to present any mitigating evidence or

statements during the penalty phase. We conclude that Joseph’s

waiver of his right to present mitigation was voluntary,

knowing, and informed.

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D. Review of the Death Sentence

¶25 Because the murder occurred after August 1, 2002, we

review the death sentence to “determine whether the trier of

fact abused its discretion in finding aggravating circumstances

and imposing a sentence of death.” A.R.S. § 13–756(A) (2010).

A finding of aggravating circumstances or the imposition of a

death sentence is not an abuse of discretion if “there is any

reasonable evidence in the record to sustain it.” State v.

Morris, 215 Ariz. 324, 341 ¶ 77, 160 P.3d 203, 220 (2007)

(internal quotation marks omitted).

¶26 The jury found two aggravating factors proven: Joseph

previously had been convicted of a serious offense, A.R.S. § 13-

751(F)(2), and the victim was less than fifteen years of age,

§ 13-751(F)(9). Joseph does not contest either finding and the

record supports the jury’s findings.

¶27 Once an aggravating factor has been established, the

penalty phase jury determines whether, in light of any

mitigating circumstances, death is the appropriate penalty.

A.R.S. §§ 13-751(C), -752(D), (F).

¶28 Although Joseph elected not to present any mitigating

evidence, the jury still could consider in mitigation “any

evidence that was presented at any prior phase of the trial.”

A.R.S. § 13-752(I). The record, however, shows little

mitigation. The jury did not abuse its discretion in concluding

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that the mitigating circumstances were not sufficiently

substantial to call for leniency.

III. CONCLUSION

¶29 We affirm Joseph’s convictions and sentences.2

_____________________________________
Rebecca White Berch, Chief Justice

CONCURRING:

_____________________________________
Scott Bales, Vice Chief Justice

_____________________________________
A. John Pelander, Justice

_____________________________________
Robert M. Brutinel, Justice

2
Joseph did not challenge any of the non-capital convictions
or sentences. He did raise eighteen claims to avoid federal
preclusion. Those claims, and the opinions by this Court he
identifies as rejecting them, are presented verbatim in the
Appendix.
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APPENDIX: ISSUES RAISED TO AVOID PRECLUSION

1. The death penalty is per se cruel and unusual punishment.
Gregg v. Georgia, 428 U.S. 153, 186-87, 96 S.Ct 2909, 49 L.Ed.2d
859 (1976); State v. Salazar, 173 Ariz. 399, 411, 844 P.2d 566,
578 (1992); State v. Gillies, 135 Ariz. 500, 507, 662 P.2d 1007,
1014 (1983).

2. Execution by lethal injection is cruel and unusual
punishment. State v. Hinchey, 181 Ariz. 307, 315, 890 P.2d 602,
610 (1995).

3. The death statute is unconstitutional because it fails to
guide the sentencing jury. State v. Greenway, 170 Ariz. 155,
164, 823 P.2d 22, 31 (1991).

4. The statute unconstitutionally fails to require either
cumulative consideration of multiple mitigating factors or that
the jury make specific findings as to each mitigating factor.
State v. Gulbrandson, 184 Ariz. 46, 69, 906 P.2d 579, 602
(1995); State v. Ramirez, 178 Ariz. 116, 131, 871 P.2d 237, 252
(1994); State v. Fierro, 166 Ariz. 539, 551, 804 P.2d 72, 84
(1990).

5. Arizona’s statutory scheme for considering mitigating
evidence is unconstitutional because it limits full
consideration of that evidence. State v. Mata, 125 Ariz. 233,
242, 609 P.2d 48, 57 (1980).

6. Arizona’s death statute insufficiently channels the
sentencer’s discretion in imposing the death sentence. State v.
West, 176 Ariz. 432, 454, 862 P.2d 192, 214 (1993); Greenway,
170 Ariz. at 162, 823 P.2d at 31.

7. Arizona’s death statute is unconstitutionally defective
because it fails to require the State to prove that death is
appropriate. Gulbrandson, 184 Ariz. at 72, 906 P.2d at 605.
8. The prosecutor’s discretion to seek the death penalty
unconstitutionally lacks standards. Salazar, 173 Ariz. at 411,
844 P.2d at 578.

9. The Constitution requires a proportionality review of a
defendant’s death sentence. Salazar, 173 Ariz. at 416, 844 P.2d
at 583; State v. Serna, 163 Ariz. 260, 269-70, 787 P.2d 1056,
1065-66 (1990).

10. There is no meaningful distinction between capital and non-

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capital cases. Salazar, 173 Ariz. at 411, 844 P.2d at 578.

11. Applying a death statute enacted after the Supreme Court’s
decision in Ring II violates the ex post facto clauses of the
federal and state constitutions and A.R.S. § 1-244. Ring III,
204 Ariz. at 545-47 ¶¶ 15-24, 65 P.3d at 926-928.

12. The death penalty is cruel and unusual because it is
irrationally and arbitrarily imposed and serves no purpose that
is not adequately addressed by life in prison. State v. Pandeli, 200 Ariz. 365, 382, ¶ 88, 26 P.3d 1136, 1153 (2001), vacated on
other grounds, Ring v. Arizona, 536 U.S 584, 122 S.Ct. 2428, 153
L.Ed.2d 556 (2002); State v. Beaty, 158 Ariz. 232, 247, 762 P.2d
519, 534 (1988).

[13. missing; no text]

[14. missing; no text]

15. Arizona’s death penalty statute is unconstitutional because
it requires imposition of the death penalty whenever at least
one aggravating circumstance and no mitigating circumstances
exist. Walton v. Arizona, 497 U.S. 639, 648, 110 S.Ct. 3047, 111
L.Ed.2d 511 (1990); State v. Miles, 186 Ariz. 10, 19, 918 P.2d
1028, 1037 (1996); State v. Bolton, 182 Ariz. 290, 310, 896 P.2d
830, 850 (1995). State v. Tucker (“Tucker II”), 215 Ariz. 298,
160 P.3d 177 (2007).

16. The death penalty is unconstitutional because it permits
jurors unfettered discretion to impose death without adequate
guidelines to weigh and consider appropriate factors and fails
to provide means to distinguish between those who deserve to die
or live. State v. Johnson, 212 Ariz. 425, 440 ¶ 69, 133 P.3d
735, 750 (2006).

17. The trial court improperly omitted penalty phase
instructions that the jury could consider mercy or sympathy in
evaluating the mitigation evidence and determining whether to
sentence the defendant to death. State v. Carreon, 210 Ariz. 54,
70-71 ¶¶ 81-87, 107 P.3d 900, 916-17 (2005).

18. The jury instruction that required the jury to unanimously
determine that the mitigating circumstances were “sufficiently
substantial to call for leniency” violated the Eighth Amendment.
State v. Ellison, 213 Ariz. 116, 139 ¶¶ 101-102, 140 P.3d 899,
922 (2006).

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19. The refusal to permit voir dire of prospective jurors
regarding their views on specific aggravating and mitigating
circumstances violates Appellant’s rights under the Sixth and
Fourteenth Amendments. State v. Johnson, 212 Ariz. 425, 440 ¶¶
29-35, 133 P.3d 735, 750 (2006).

20. Refusing to instruct the jury or permit the introduction of
evidence and argument regarding residual doubt violated
Appellant’s rights under the Sixth, Eighth and Fourteenth
Amendments and Arizona law. State v. Harrod (Harrod III), 218
Ariz. 268, 278-79 ¶¶ 37-39, 183 P.3d 519, 529-30 (2008); State
v. Garza, 216 Ariz. 56, 70 ¶ 67, 163 P.3d 1006, 1020 (2007).

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