State v. Fabio Evelio Gomez

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-10-0358-AP
Appellee/Cross-Appellant, )
) Maricopa County
v. ) Superior Court
) No. CR2000-090114
FABIO EVELIO GOMEZ, )
)
Appellant. )
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Roland J. Steinle, Judge

AFFIRMED
________________________________________________________________

THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Division Chief Counsel
Jeffrey A. Zick, Section Chief Counsel
Capital Litigation Section
Laura Chiasson, Assistant Attorney General Tucson
Attorneys for State of Arizona

MICHAEL J. DEW ATTORNEY AT LAW Phoenix
By Michael J. Dew
Attorney for Fabio Evelio Gomez
________________________________________________________________

B A L E S, Vice Chief Justice

¶1 This automatic appeal concerns Fabio Evelio Gomez’s

2010 death sentence for murdering Joan Morane. We have

jurisdiction under Article 6, Section 5(3) of the Arizona

Constitution and A.R.S. §§ 13–4031, -4032, and -4033(A) (2011).

FACTS AND PROCEDURAL BACKGROUND

¶2 Joan lived in an apartment complex where Gomez also
lived with his girlfriend and infant son. In December 1999, a

friend found Joan’s door unlocked and furniture in disarray.

Joan was missing. That same day, a neighbor heard pounding on

Gomez’s bathroom wall and a woman screaming. When questioned by

police, Gomez said he had been home all day and had not seen

Joan or heard any screaming. The next day, police saw blood on

an inflatable raft that Gomez had placed in his girlfriend’s

car.

¶3 When Gomez allowed police to enter his apartment, they

saw blood on the living room carpet and the bathroom walls.

Gomez initially told police that his girlfriend had cut her

foot, but later said the blood was from a cat he had killed

because it had scratched his son’s face. Police discovered

Joan’s body in a dumpster at the apartment complex. DNA testing

identified Gomez’s semen in Joan’s body and Joan’s blood in

Gomez’s apartment.

¶4 In 2001, a jury convicted Gomez of first degree

murder, kidnapping, and sexual assault. Before he was

sentenced, the United States Supreme Court held that Arizona’s

death penalty statutes were unconstitutional because they

allowed a judge, rather than a jury, to find aggravating factors

that could result in a death sentence. Ring v. Arizona, 536

U.S. 584 (2002). The legislature then amended the death penalty

statutes. Based on these amendments, the trial court reset the
2
matter for a jury sentencing hearing.

¶5 In 2003, a second jury found that the murder was

especially cruel and depraved, see A.R.S. § 13-751(F)(6)(2011),

and determined that Gomez should be sentenced to death. State

v. Gomez, 211 Ariz. 494, 498 ¶ 16, 123 P.3d 1131, 1135 (2005).

This Court affirmed Gomez’s convictions and his sentence for

sexual assault. Id. at 505 ¶ 53, 123 P.3d at 1142. The Court

vacated Gomez’s death sentence because he had been shackled in

the jury’s presence contrary to Deck v. Missouri, 544 U.S. 622

(2005), and also vacated his aggravated sentence for kidnapping.

Gomez, 211 Ariz. at 505 ¶¶ 51, 53, 123 P.3d at 1142.

¶6 On remand, a third jury found the (F)(6) “especially

cruel” aggravator and determined Gomez should be sentenced to

death for Joan’s murder; the trial court also resentenced him

for the kidnapping.

DISCUSSION

A. Revocation of Pro Per Status

¶7 Gomez argues that, after the case was remanded for

resentencing, the trial court erred by revoking his pro per

status and appointing counsel to represent him. At the initial

sentencing trial, Gomez represented himself until closing

arguments, when he chose to be represented by advisory counsel.

Gomez, 211 Ariz. at 498 ¶ 16, 123 P.3d at 1135. On remand in

2006, the trial court granted Gomez’s request to represent
3
himself in the resentencing and appointed a mitigation expert

and advisory counsel to assist him. Nearly three years later,

the trial court revoked Gomez’s pro per status, noting that

Gomez had been unable to comply with the court’s deadlines and

the disclosure rules for criminal cases.

¶8 A trial court’s decision to revoke a defendant’s self-

representation is reviewed for an abuse of discretion. See

State v. Martin, 102 Ariz. 142, 146, 426 P.2d 639, 643 (1967).

“The right to counsel under both the United States and Arizona

Constitutions includes an accused’s right to proceed without

counsel and represent himself,” State v. Lamar, 205 Ariz. 431,

435 ¶ 22, 72 P.3d 831, 835 (2003), “but only so long as the

defendant ‘is able and willing to abide by the rules of

procedure and courtroom protocol.’” State v. Whalen, 192 Ariz.

103, 106, 961 P.2d 1051, 1054 (App. 1997) (quoting McKaskle v.

Wiggins, 465 U.S. 168, 173 (1984)).

¶9 The trial court revoked Gomez’s right to self-

representation only after repeatedly admonishing him to comply

with court rules and deadlines and that noncompliance could

result in the loss of his pro per status. In May 2007, after

Gomez had represented himself for ten months, the trial court

instructed Gomez, his advisory counsel, and his mitigation

consultant that they needed to set a realistic schedule for

completing their mitigation investigation so the court could set
4
a trial date. The mitigation specialist responded that he would

need time to travel to the Dominican Republic (where Gomez lived

until 1987) and elsewhere outside Arizona to interview people.

In August 2007, the court set a “firm” trial date for September

2, 2008; set a disclosure deadline; and told Gomez that, if he

failed to follow the rules and prepare for the resentencing

trial, his pro per status would be revoked.

¶10 In May 2008, Gomez told the court that he needed at

least another eighteen months to prepare. On the recommendation

of a mitigation special master, the trial court reset the trial

for June 1, 2009. The court again warned Gomez to comply with

the court rules and that his pro per status would be revoked if

he was not prepared on the rescheduled date. After advisory

counsel told the court that the defense would get a psychologist

expert and complete testing of Gomez by November 2008, the

mitigation special master set a deadline of November 15, 2008

for completing all psychological testing. Despite this

deadline, Gomez twice failed to meet with defense psychologists

who came to interview him.

¶11 In November 2008, the trial court denied Gomez’s

motion to change advisory counsel and again warned Gomez that he

would lose the right to represent himself if he did not follow

court rules. The next month, the court denied Gomez’s request

to extend the discovery deadlines; ordered Gomez to make all
5
required disclosures by January 23, 2009; and affirmed the June

1, 2009 trial date. In violation of that order and Rule 15.2 of

the Arizona Rules of Criminal Procedure, Gomez, in January 2009,

disclosed the names of some 360 witnesses for the resentencing

trial, including a neuropsychologist and a psychologist, without

also disclosing any expert reports. The listed witnesses

included more than 150 “out of state character witnesses,” more

than 70 police officers, Gomez’s former defense attorneys, 2

former Arizona attorneys general, and a former Arizona governor.

The disclosure did not include addresses for the witnesses. It

suggested that Gomez intended to offer evidence challenging the

police investigation of the murder or the validity of his

convictions, matters that the trial court had told Gomez were

not at issue in the resentencing proceeding.

¶12 After the State moved to obtain the required

disclosures, the trial court gave Gomez until March 25, 2009 to

“fully comply with Rule 15.2” and again warned Gomez that his

failure to follow the rules could result in loss of his pro per

status. On March 25, Gomez filed a notice again listing

hundreds of witnesses; he included telephone numbers or

addresses for about eighty. At a hearing on March 30, he told

the court that he “still [had] many other things” he needed to

do and that the identified neuropsychologist and psychologist

experts had not yet examined him. Advisory counsel subsequently
6
disclosed two new psychologist experts and told the court that

these experts would examine Gomez in April and their reports

would be ready before the June 1, 2009 trial date. Noting that

this timetable would allow the State little time to obtain

rebuttal evidence, the court set a hearing to show cause why it

should not revoke Gomez’s pro per status and assign counsel to

represent him.

¶13 At the April 14, 2009 show cause hearing, Gomez said

he had done everything he had been told to do, he wished to

continue representing himself, and he was ready to proceed with

his resentencing trial. Finding that Gomez had been unable to

comply with Rule 15, the trial court revoked his pro per status

and reset the trial date for September 2009. The court also

appointed the two lawyers who had served as advisory counsel

since 2006 (Herman Alcantar, Jr. and Christopher Flores) to

represent Gomez. The trial was subsequently postponed due to

conflicts in the attorneys’ schedules and did not occur until

September 2010.

¶14 Gomez argues that the trial court erred in revoking

his pro per status for several reasons. First, he contends that

he complied with Rule 15’s disclosure requirements and that, if

he failed to do so, the trial court should have precluded his

witnesses rather than revoke his pro per status. Second, he

states that his appointed counsel did not add to his pro per
7
disclosures and did not ultimately present any experts, and that

the trial did not take place until seventeen months after his

pro per status was revoked. Finally, he argues that revocation

is not appropriate unless a pro per defendant engages in

“serious obstructionist conduct” in the courtroom, citing United

States v. Johnson, 610 F.3d 1138, 1144 (9th Cir. 2010).

¶15 We disagree. “[A] defendant who proves himself

incapable of abiding by the most basic rules of the court is not

entitled to defend himself.” Deck, 544 U.S. at 656.

Accordingly, a trial court “may terminate self-representation by

a defendant who deliberately engages in serious and

obstructionist misconduct.” Faretta v. California, 422 U.S.

806, 834 n.46 (1975). As Faretta acknowledges, a self-

represented defendant must not only respect the dignity of the

courtroom, but also “comply with relevant rules of procedural

and substantive law.” Id. Thus, a trial court may revoke pro

per status for serious violations of court orders and rules even

if the conduct occurs outside a courtroom proceeding.

¶16 Gomez demonstrated over several years that he could

not comply with court deadlines and the disclosure rules. The

trial court repeatedly warned Gomez that his noncompliance could

result in loss of pro per status. The trial court revoked that

status only after it had become evident that Gomez’s continued

self-representation would undermine the court’s authority and
8
ability to conduct the proceeding in an efficient and orderly

manner. Cf. Whalen, 192 Ariz. at 107-08, 961 P.2d at 1055-56

(upholding trial court’s revocation of pro per status when

defendant failed to comply with a court order to conduct defense

from the front of courtroom). That the trial court might have

precluded witnesses as a sanction for Gomez’s violations of Rule

15.2 does not mean that the court was prevented from revoking

his pro per status. Gomez’s conduct gave the trial court ample

grounds to revoke his pro per status in April 2009 - a

conclusion that is not affected by the later postponement of the

trial until September 2010 or by Gomez’s assertions that his

appointed counsel did not provide any additional disclosures and

ultimately did not present expert witnesses.

¶17 The trial court did not abuse its discretion by

revoking Gomez’s pro per status and appointing counsel to

represent him.

B. Denial of Requests for Change of Counsel

¶18 Gomez argues that the trial court erred by not holding

an evidentiary hearing before denying requests by him and his

lawyer for the appointment of new counsel. We review a trial

court’s decision to deny a request for new counsel for abuse of

discretion. State v. Moore, 222 Ariz. 1, 15 ¶ 77, 213 P.3d 150,

164 (2009).

¶19 The Sixth Amendment guarantees criminal defendants the
9
right to representation by counsel, but “an indigent defendant

is not ‘entitled to counsel of choice, or to a meaningful

relationship with his or her attorney.’” State v. Torres, 208

Ariz. 340, 342 ¶ 6, 93 P.3d 1056, 1058 (2004) (quoting State v.

Moody, 192 Ariz. 505, 507 ¶ 11, 968 P.2d 578, 580 (1998)). A

defendant’s Sixth Amendment right to counsel is violated “when

there is a complete breakdown in communication or an

irreconcilable conflict between a defendant and his appointed

counsel.” Id. “Conflict that is less than irreconcilable,

however, is only one factor for a court to consider in deciding

whether to appoint substitute counsel.” State v. Cromwell, 211

Ariz. 181, 186 ¶ 29, 119 P.3d 448, 453 (2005).

¶20 On December 8, 2009, nearly five weeks before the

resentencing trial was then scheduled to begin, Gomez filed a

pro per “motion for change of counsel.” He alleged that

Alcantar, his appointed lead counsel, had not visited him in

more than a year, had not devoted enough time to prepare the

case, and was unprofessional. Gomez further alleged that he did

not trust Alcantar because the lawyer had submitted excessive

bills while acting as advisory counsel and had not deposited

money into Gomez’s account for stamps and supplies. Gomez also

asserted that Flores, his other attorney, was not qualified to

handle a death penalty case. Finally, Gomez complained that he

had “been subjected to the t[y]pical unethical actions of [an]
10
irresponsible Court appointed defense attorney . . . with whom

[Gomez] has an actual major conflict of interest, and an

irredeemable client-attorney relationship.”

¶21 On December 18, 2009, attorney Christopher Dupont

filed a “motion to determine counsel,” stating that he was

specially appearing because the Consulate of the Dominican

Republic intended to retain him to represent Gomez at the

resentencing hearing. This motion criticized Alcantar’s

representation, asserted that there had been a complete fracture

in Gomez’s relationship with his counsel, and requested an

evidentiary hearing. At two subsequent hearings, however,

DuPont said he would not represent Gomez.

¶22 On February 4, 2010, Alcantar filed a Motion to

Withdraw as Counsel of Record. This motion alleged that Dupont

had “broken any confidence Mr. Gomez had in his legal team” and

“poisoned” counsel’s relationship with Gomez, specifically

noting difficulties the defense team had communicating with

mitigation witnesses. Alcantar claimed that “the defendant’s

family in the Dominican Republic will no longer speak to the

Mitigation Specialist because she [sic] was informed . . . that

the defense team was not helping Mr. Gomez.”

¶23 Three weeks later, the court held a pretrial

conference attended by Gomez, Alcantar, and DuPont. The court,

without objection, announced that it would decide the pending
11
matters without an evidentiary hearing or oral argument. It

struck Dupont’s motion to determine counsel and denied

Alcantar’s motion to withdraw. The court also denied Gomez’s

motion for change of counsel, finding “an insufficient showing

in the motion to demonstrate that a change of counsel is

necessary, especially considering the age of the case and the

timing of the motion in this matter.”

¶24 Relying on Torres, Gomez now argues that the trial

court was required to hold an evidentiary hearing to consider

the specific allegations in his motion for change of counsel.

He further contends that both his motion and Alcantar’s motion

to withdraw alleged “an irretrievable breakdown of the attorney-

client relationship.”

¶25 “[T]o protect a defendant’s Sixth Amendment right to

counsel, a trial judge has the duty to inquire as to the basis

of a defendant’s request for substitution of counsel.” Torres,

208 Ariz. at 343 ¶ 7, 93 P.3d at 1059. But “[t]he nature of the

inquiry will depend upon the nature of the defendant’s request.”

Id. at ¶ 8. “[G]eneralized complaints about differences in

strategy may not require a formal hearing or an evidentiary

proceeding.” Id. Before ruling on a motion for change of

counsel, a trial court should consider

whether an irreconcilable conflict exists between
counsel and the accused, and whether new counsel would
be confronted with the same conflict; the timing of
12
 the motion; inconvenience to witnesses; the time
period already elapsed between the alleged offense and
trial; the proclivity of the defendant to change
counsel; and quality of counsel.

State v. LaGrand, 152 Ariz. 483, 486-87, 733 P.2d 1066, 1069-70

(1987).

¶26 In requiring a hearing in Torres, the Court noted that

the defendant had alleged “that he could no longer speak with

his lawyer about the case, he did not trust him, he felt

threatened and intimidated by him, there was no confidentiality

between them, and his counsel was no longer behaving in a

professional manner.” Torres, 208 Ariz. at 342 ¶ 2, 93 P.3d at

1058. We held that the trial court abused its discretion by

summarily denying a motion for change of counsel without

inquiring into the “specific factual allegations that raised a

colorable claim that he had an irreconcilable conflict with his

appointed counsel.” Id. at 343 ¶ 9, 93 P.3d at 1059.

¶27 The facts of this case are distinguishable from

Torres. Gomez’s motion did not allege facts suggesting that

there had been a complete breakdown in communication or an

irreconcilable conflict. “A single allegation of lost

confidence in counsel does not require the appointment of new

counsel, and disagreements over defense strategy do not

constitute an irreconcilable conflict.” Cromwell, 211 Ariz. at

186 ¶ 29, 119 P.3d at 453. Nor did Alcantar’s motion to

13
withdraw allege specific facts suggesting a “completely

fractured relationship.” Id. Instead, it contended that Dupont

had made it difficult for the defense to communicate with

mitigation witnesses and had undermined Gomez’s confidence in

his legal team.

¶28 Moreover, in denying the requests for change of

counsel, the trial court considered the LaGrand factors and

Alcantar’s written responses to Gomez’s allegations and Dupont’s

motion. For example, Alcantar discussed interviews done by the

mitigation specialist, motions Alcantar intended to file before

trial, why he had not more frequently visited Gomez at the jail

(Alcantar said that Gomez had imposed restrictions on the visits

and persisted in discussing matters not at issue in the

resentencing), and his providing stamps to Gomez and depositing

money in Gomez’s jail account. The State also provided

information to the court about the number of times that the

mitigation specialist, the defense investigator, or counsel had

gone to the jail to visit Gomez. When the trial court announced

it intended to decide the matters on the pleadings, neither

Gomez nor any lawyer requested an evidentiary hearing to present

additional information.

¶29 A trial judge is not required to hold an evidentiary

hearing on a motion for change of counsel if the motion fails to

allege specific facts suggesting an irreconcilable conflict or a
14
complete breakdown in communication, or if there is no

indication that a hearing would elicit additional facts beyond

those already before the court. See LaGrand, 152 Ariz. at 486,

733 P.2d at 1069 (noting that “a request for new counsel should

be examined with the rights and interest of the defendant in

mind tempered by exigencies of judicial economy”). The trial

court did not abuse its discretion when it denied the requests

for change of counsel without holding an evidentiary hearing.

C. Sufficiency of Evidence for (F)(6) Aggravator

¶30 Gomez argues that the State did not present sufficient

evidence to prove the murder was especially cruel. This

argument is subsumed within our independent review, because we

determine de novo whether the evidence establishes an

aggravating circumstance beyond a reasonable doubt. See State

v. Hargrave, 225 Ariz. 1, 13 ¶ 41, 234 P.3d 569, 581 (2010).

D. Independent Review

¶31 Because Gomez committed the murder before August 1,

2002, we independently review his death sentence. See A.R.S.

§ 13-755(A).

1. Aggravating Circumstances

¶32 The State alleged that the murder was “especially

cruel” for purposes of the (F)(6) aggravating circumstance. To

establish especial cruelty, “the state must prove that ‘the

victim consciously experienced physical or mental pain prior to
15
death, and the defendant knew or should have known that

suffering would occur.’” State v. Prince, 226 Ariz. 516, 539

¶ 97, 250 P.3d. 1145, 1168 (2011) (quoting State v. Snelling,

225 Ariz. 182, 188 ¶ 25, 236 P.3d 409, 415 (2010)). This Court

“‘examine[s] the entire murder transaction and not simply the

final act that killed the victim.’” Id. (quoting State v.

Ellison, 213 Ariz. 116, 142 ¶ 119, 140 P.3d 899, 925 (2006)).

¶33 The record establishes beyond a reasonable doubt that

Joan’s murder was especially cruel. The medical examiner

testified that Joan suffered eighteen or more blows to her head,

at least one of which was inflicted with as much force as that

caused by a motor vehicle accident. She also suffered cuts,

scrapes, bruises, and bone fractures. Her wounds suggested that

Joan was conscious and moving while being beaten. She had

defensive wounds and grip marks on her arms indicating that she

struggled while being held down with significant force.

¶34 The evidence also indicates that a gag-type ligature

was placed around Joan’s face and across her neck. Although

Joan usually kept a neat apartment, after the attack, a glass

table top was knocked over and a heavy living room chair

displaced. Joan’s blood was found in Gomez’s apartment, but not

in her own. This evidence suggests Joan was abducted in her

apartment and then beaten to death in Gomez’s apartment.

¶35 Gomez argues that especial cruelty was not proven
16
because the medical examiner could not determine the “sequence

of blows, the consciousness of the victim, and the nature of the

bruising” that Gomez inflicted. This argument fails.

¶36 Joan’s injuries, her screams, evidence of a struggle

in Joan’s apartment, and the fact that she had been gagged all

indicate Joan was conscious during part of the attack. Cf.

State v. Andriano, 215 Ariz. 497, 511 ¶ 66, 161 P.3d 540, 554

(2007) (finding cruelty where “[d]efensive wounds on [the

victim’s] hands and wrists indicate that he was conscious for at

least some of the attack and thus knew his wife was attacking

him”), abrogated on other grounds by State v. Ferrero, 229 Ariz.

239, 274 P.3d 509 (2012).

¶37 Regardless of when Joan lost consciousness as result

of the eighteen blows to her head, the State proved beyond a

reasonable doubt that she was conscious for part of the attack

and suffered physically and mentally. The State also proved

beyond a reasonable doubt that Gomez knew or should have known

that Joan was suffering physically and mentally. See, e.g., id.

(defendant “knew or should have known that beating her husband

with a bar stool would cause him physical pain and mental

anguish”).

2. Mitigating Circumstances

¶38 At the mitigation phase, Gomez presented testimony

from family members and others who knew him in the Dominican
17
Republic and established that he had a good upbringing and was

treated well by his parents while growing up. During

allocution, Gomez asked for an opportunity to obtain an

education and to be rehabilitated. On appeal, Gomez states that

he had no prior criminal record and that he immigrated to the

United States as a self-sufficient professional, sought ways to

give back to his adopted country as a coach for young people,

cared about his family and community in the Dominican Republic,

and was raising an infant son.

¶39 The State disputes Gomez’s alleged mitigating factors,

contending that his family members and friends from the

Dominican Republic had no significant contact with Gomez in the

more than ten years between his move to the United States and

Joan’s murder. At the penalty phase, to contradict Gomez’s

claims that he was a productive member of society and caring

father, the State introduced testimony from the guilt phase in

which Gomez admitted using drugs and said that, on the day of

the murder, he had smoked marijuana before driving with his

infant son in a car and had later left the baby unattended while

he engaged in consensual sexual intercourse in another car.

¶40 “A defendant’s relationship with his or her family and

friends may be a mitigating circumstance, yet the Court has

often found that this circumstance should be given little

weight.” State v. Tucker, 215 Ariz. 298, 322 ¶ 116, 160 P.3d
18
177, 201 (2007). Similarly, a defendant’s lack of a prior

felony conviction “is a mitigating circumstance, but entitled to

little weight.” State v. Greene, 192 Ariz. 431, 442 ¶ 52, 967

P.2d 106, 117 (1998). The mitigating circumstances are not

substantial.

3. Propriety of Death Sentence

¶41 We consider the quality and the strength, not simply

the number, of aggravating and mitigating factors. Id. at 443

¶ 60, 967 P.2d at 118. Gomez kidnapped and sexually assaulted

Joan and brutally bludgeoned her to death. The record does not

reflect significant mitigating circumstances. We conclude that

“the mitigation is not sufficiently substantial to warrant

leniency.” A.R.S. § 13-755(B).

E. Additional Issues

¶42 Stating that he seeks to preserve certain issues for

federal review, Gomez lists eighteen additional constitutional

claims that he acknowledges have been rejected in previous

decisions. We decline to revisit these claims.

F. State’s Cross-Appeal

¶43 On cross-appeal, the State argues that the trial court

abused its discretion by (1) precluding cross-examination of

Gomez after he identified new mitigation and professed his

innocence during allocution, and (2) limiting the rebuttal

19
evidence the State presented in response to Gomez’s statements

during allocution. These issues are moot, however, because we

have affirmed Gomez’s death sentence, and we accordingly decline

to address them. See, e.g., State v. Chappell, 225 Ariz. 229,

243 ¶ 60, 236 P.3d 1176, 1190 (2010); State v. McCray, 218 Ariz.

252, 261 ¶ 46, 183 P.3d 503, 512 (2008).

CONCLUSION

¶44 We affirm Gomez’s sentences.

_____________________________________
Scott Bales, Vice Chief Justice

CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice

_____________________________________
A. John Pelander, Justice

_____________________________________
Robert M. Brutinel, Justice

__________________________________
Donn Kessler, Judge*

* Pursuant to Article 6, Section 3 of the Arizona Constitution,
the Honorable Donn Kessler, Judge of the Arizona Court of
Appeals, Division One, was designated to sit in this matter.

20