16th murderer executed in U.S. in 2012
1293rd murderer executed in U.S. since 1976
3rd murderer executed in Arizona in 2012
31st murderer executed in Arizona since 1976
(Race/Sex/Age at Murder-Execution) |
Birth |
(Race/Sex/Age at Murder) |
Murder |
Murder |
to Murderer |
Sentence |
||||
(16) |
Thomas Arnold Kemp Jr. W / M / 44 - 63 |
Hector Soto Juarez H / M / 25 |
Summary:
College student Hector Juarez was kidnapped by Kemp and his accomplice, Jeffrey Logan, in the parking lot of the apartment complex where he lived. Logan would later report to the police that he and Kemp forced Juarez to withdraw money with an ATM card then drove him to a remote area and shot him. They stole his car then drove to Colorado. At trial, Kemp stated that his biggest mistake was not killing Logan, and that since the victim was a wetback, he did not deserve to live. On the run, the pair would later kidnap a couple in Colorado. When the couple eventually escaped, Logan went to the police. Accomplice Logan was tried first, convicted, and sentenced to life imprisonment for the murder.
Citations:
State v. Kemp, 185 Ariz. 52, 912 P.2d 1281 (Ariz. 1996). (Direct Appeal)
Kemp v. Ryan, 638 F.3d 1245 (9th Cir. 2011). (Habeas)
Final Words:
"I regret nothing."
Final / Special Meal:
A cheeseburger, fries and root beer; boysenberry pie with strawberry ice cream.
Internet Sources:
Arizona Department of Corrections
Inmate: KEMP THOMAS A
DOC#: 099144
DOB: 06/02/1948
Gender: Male
Height 72"
Weight: 170
Hair Color: Gray
Eye Color: Blue
Ethnic: Caucasian
Sentence: DEATH
Admission: 07/20/1993
Conviction Imposed: MURDER 1ST DEGREE
County: PIMA
Case#: 0038226
Date of Offense: 07-11-92
"Arizona executes killer who showed no remorse," by David Schwartz. (Wed Apr 25, 2012 2:52pm EDT)
(Reuters) - A defiant killer who asked for no mercy, shunned a clemency hearing and railed against immigrants at his sentencing was put to death by lethal injection in Arizona on Wednesday for kidnapping and killing a Hispanic college student in 1992, officials said. Thomas Kemp, 63, was pronounced dead at 10:08 a.m. local time at the state prison in Florence, about 60 miles southeast of Phoenix, a state official said. His last words were: "I regret nothing."
Kemp, who acted with an accomplice, was sentenced to death in 1993 for snatching Hector Soto Juarez from outside his Tucson apartment, taking him to a mine northwest of the city and forcing him to disrobe. Juarez was shot fatally in the head. The former trailer park maintenance man had consistently showed no remorse about the killing, and refused to attend a hearing this month by the Arizona Board of Execution Clemency. He branded the proceeding a "dog and pony show."
At his 1993 sentencing, Kemp said his only regret was not killing an accomplice and unleashed a tirade against Mexican immigrants and the legal system, saying his victim was "beneath my contempt." "If more of them wound up dead, the rest of them would soon learn to stay in Mexico, where they belong," Kemp said at his sentencing, according to court documents. "I spit on the law and all those who serve it."
In a statement released shortly after the execution, Arizona Attorney General Tom Horne called Kemp a "particularly cold-blooded individual." "He never expressed any kind of remorse for his crimes, which were particularly brutal," Horne said. "Now that Thomas Kemp has paid the penalty for his terrible crimes, it is my hope that his victims and their families will find some measure of peace that justice has been carried out."
According to court testimony, Kemp and his partner, Jeffrey Logan, set the crimes in motion by buying a .380 semiautomatic handgun from a pawn shop days before the abduction. Late on July 11, 1992, the men took Juarez from the apartment parking lot. At midnight, the two withdrew $200 with Juarez's bank card and drove him to the Silverbell Mine area. Kemp walked his victim 50 to 70 feet from the vehicle, made him take off his clothes and then shot him twice, testimony showed.
His last meal consisted of a bacon cheeseburger with fries, root beer and a piece of boysenberry pie with strawberry ice cream.
AZCentral - The Arizona Republic
"Arizona executes third inmate this year," by Michael Kiefer. (Apr. 25, 2012 10:35 AM)
"Kemp was defiant to the end. "I regret nothing," he said as his last words. Then he trembled as the drugs coursed through his veins, took some deep breaths and went still.
Kemp, 63, was sentenced to death for the July 1992 murder of Hector Juarez.
Kemp was an ex-convict working as a maintenance man at a trailer park in Tucson, where he lived with his mother. When a former prisonmate named Jeffrey Logan escaped from an honor farm in California, he and Kemp teamed up, bought a gun and went cruising for a victim.
They found Juarez, 25, a college student who had left his apartment to get a late-night snack at a fast-food restaurant. Kemp and Logan seized him in the parking lot outside his apartment, made him withdraw money from an ATM, stripped him naked and shot him twice in the head. Then they dumped his body near the Silverbell Mine in Marana, northwest of Tucson.
Kemp and Logan drove to Flagstaff and sold Kemp's truck, then carjacked a couple and forced them to drive to Durango, Colo. where Kemp sexually assaulted the man. The couple escaped and contacted police in Kansas. Logan was arrested in Denver and led Tucson police to Juarez's body in the desert. Kemp was arrested in a homeless shelter in Tucson.
While in jail in Pima County, Kemp effectively confessed to killing Juarez when he told two corrections officers that he was afraid of being housed with Mexican prisoners because he had killed a Mexican.
Kemp was convicted of first-degree murder, armed robbery and kidnapping in June 1993. At his sentencing a month later, Kemp told the court that Juarez was "beneath my contempt" because he was not an American citizen, and, "If more of them wound up dead, the rest of them would soon learn to stay in Mexico, where they belong."
Logan received a sentence of life in prison, which he is serving in Arizona under a different name.
Kemp's last meal was cheeseburger, fries and root beer; boysenberry pie with strawberry ice cream.
"Arizona death-row inmate won't seek mercy." (Associated Press 04/09/12)
PHOENIX - An Arizona inmate set to be executed this month for killing a Tucson college student after robbing him in 1992 has declined to seek mercy from the state's clemency board.
Thomas Arnold Kemp, 63, is set to be executed by lethal injection at the state prison in Florence on April 25.
Daisy Kirkpatrick, an administrative assistant at the Arizona Board of Executive Clemency, told The Associated Press on Monday that Kemp recently declined to petition the board for a lighter sentence.
Kemp's Tucson attorney, Tim Gabrielsen, did not immediately return a call for comment.
Every inmate executed in Arizona has the right to petition the Arizona Board of Executive Clemency to either reduce their sentence to life in prison or delay their execution for more legal wrangling.
No inmates in recent history have declined to seek mercy from the board.
This is not the first time Kemp has refused to argue for leniency for himself.
During his sentencing trial two decades ago, Kemp was supposed to explain to the court why he didn't deserve the death penalty. Instead, he expressed his contempt for his victims, reporters who wrote about the story and the prosecutors on his case.
"I don't show any mercy, and I am certainly not here to plead for mercy," he said. "I spit on the law and all those who serve it."
Kemp was sentenced to death for kidnapping 25-year-old Hector Soto Juarez from outside his Tucson apartment on July 11, 1992, and robbing him before taking him into a desert area, forcing him to undress and shooting him twice in the head.
Juarez had just left his apartment and fiancee to get food when Kemp and Jeffery Logan spotted him. They held him at gunpoint and used his debit card to withdraw $200 before driving him to the Silverbell Mine area near Marana, where Kemp killed Juarez.
The two men then went to Flagstaff, where they kidnapped a married couple traveling from California to Kansas and made them drive to Durango, Colo., where Kemp raped the man in a hotel room. Later, Kemp and Logan forced the couple to drive to Denver, where they escaped. Logan soon after separated from Kemp and called police about Juarez's murder.
Logan led police to Juarez's body, and Kemp was arrested.
Kemp has argued that his conviction was unfair because then-prosecutor Kenneth Peasley repeatedly told jurors that Kemp's homosexuality was behind Juarez's kidnapping and murder, and that the jury hadn't been properly vetted for their feelings about gay men.
Kemp told the judge just before he was sentenced that he should have killed Logan when he had the chance and that he had no regrets.
"The so-called victim was not an American citizen and, therefore, was beneath my contempt," he said and then referred to Juarez using a racial slur for Mexicans. "If more of them ended up dead, the rest of them would soon learn to stay in Mexico where they belong."
"Arizona execution nears for Tom Kemp in 1992 killing," by Michael Kiefer. (Apr. 23, 2012 09:22 PM)
Tom Kemp, who faces execution Wednesday, went to death row for kidnapping and murdering a college student near Marana in 1992. He was, and remains, a hard case. At his sentencing, he said his only regret was not killing an accomplice who turned him in. Kemp did admit to "a deep and abiding sense of remorse," he said, that his friendship kept him from killing the accomplice.
But he had no remorse for killing Hector Juarez, whose naked body he left in the desert near Marana.
At his sentencing, Kemp noted that Juarez was not an American citizen and he offered up a diatribe against Mexican immigrants that made it clear he had no intention of seeking mercy for the killing, telling the court, "I spit on the law and all those who serve it."
Kemp's attorney at the time argued that Kemp had a personality disorder that made him perceive everyone else as dishonest and opportunistic, and therefore moved him to do anything he could to get something for himself.
He still refuses to ask for mercy. He chose not to appear before the Arizona Board of Executive Clemency earlier this month.
In a handwritten note, he said, "I, Thomas Kemp, state that I decline to seek executive clemency due to the futility of that process. In light of the board's history of consistently denying requests for commutations, my impression is that a hearing in my case would be nothing short of a dog and pony show."
There's very little in the record about Kemp, 63. He was born in California in 1948, lived near Chico and was the youngest of five children. He deserted from the U.S. Army in 1968 and served time in prison for robbery. He worked as a maintenance man in a trailer park near Tucson, where he lived with his mother.
In July 1992, Kemp and a friend named Jeffrey Logan bought a gun. Logan and Kemp had met in a California prison, from which Logan recently had escaped.
Juarez was a 25-year-old community-college student. On July 11, 1992, he waited for his girlfriend to come home to their apartment from her job at a local shopping mall, and then he took her car at 11:15 p.m. to pick up something to eat. When he didn't return by midnight, the girlfriend went to the apartment-complex parking lot and found the car unlocked. It still smelled like fast food, but Juarez was gone. His body was found July 25, 1992, near the Silver Bell Mine northwest of Tucson. He had two bullets in his head and was wearing nothing but his shoes and socks.
Kemp and Logan were already gone. They'd apparently forced Juarez to withdraw $200 from his bank account, and after they killed him, they tried unsuccessfully to withdraw more. They drove to Flagstaff, where they repainted Kemp's truck and sold it for $650 on July 15.
But they needed another vehicle for their getaway, so they carjacked a couple and forced them to drive to Durango, Colo. There, in a hotel room, Kemp forced the man to disrobe and sexually assaulted him. The couple escaped and contacted police in Kansas. Logan was arrested in Denver and led Tucson police to Juarez's body in the desert. Kemp was arrested in a homeless shelter in Tucson.
While in jail in Pima County, Kemp effectively confessed to killing Juarez when he told two corrections officers that he was afraid of being housed with Mexican prisoners because he had killed a Mexican.
Logan received a sentence of life in prison, which he is serving in Arizona under a different name.
Kemp was convicted of first-degree murder, armed robbery and kidnapping in June 1993. He was sentenced to death a month later. That sentence will be carried out Wednesday.
On July 11, 1992, at approximately 11:15 p.m., Hector Juarez awoke when his fiancée, Jamie, returned home from work to their shared unit at the Promontory Apartments in Tucson. A short time later, Hector left to get something to eat. Jamie assumed he went to a nearby Jack-in-the-Box at the corner of Oracle and River Roads. He never returned. At around midnight, Jamie became concerned that Hector had not come home and began to look for him. She found both her car and his car in the parking lot. Her car, the one Hector was driving, was unlocked, smelled of fast food, and had insurance papers on the roof. After checking with Hector's brother and a friend, Jamie called the police.
Two or three days before Hector was abducted, Jeffery Logan, an escapee from a California honor farm, arrived in Tucson and met with Thomas Arnold Kemp, Jr. On Friday, July 10, Logan went with Kemp to a pawn shop and helped him buy a .380 semi-automatic handgun. Kemp and Logan spent the next night driving around Tucson. At some time between 11:15 p.m. and midnight, Kemp and Logan abducted Hector Juarez from the parking area of his complex. At midnight, Kemp used Hector's ATM card and successfully withdrew approximately $200.
He then drove Hector out to the Siverbell Mine area near Marana. Kemp walked Hector 50 to 70 feet from the truck, forced him to disrobe, and shot him in the head twice. Kemp then made two unsuccessful attempts to use Hector Juarez's ATM card in Tucson. The ATM machine kept the card after the second time. Kemp and Logan painted Kemp's truck, drove to Flagstaff, and sold it. They bought another .380 semi-automatic handgun with the proceeds. While in Flagstaff, Kemp and Logan met a couple travelling from California to Kansas. At some point they kidnapped the couple and forced them to drive to Durango, Colorado, where Kemp forced the man to disrobe. He then sexually assaulted him. The victim testified that while alone with Kemp in a hotel room, Kemp forced him to undress and then touched his genitals. Later, Kemp, Logan, and the couple drove to Denver. Two weeks after Hector Juarez was abducted, the couple escaped. For unknown reasons, Logan left Kemp, contacted the Tucson police about the murder of Hector Juarez, and was arrested in Denver. With Logan's help, the police discovered Hector Juarez's body. Later that day, the police arrested Kemp at a homeless shelter in Tucson. He was carrying the handgun purchased in Flagstaff and a pair of handcuffs.
After having been read his Miranda rights, Kemp answered some questions before he asked for a lawyer. Kemp admitted that he purchased a handgun with Logan on July 10. He said that on the day of the abduction and homicide he was "cruising" though apartment complexes, and that there was a very good possibility he was at the Promontory Apartments. When the police confronted him with the ATM photographs, he initially denied being the man in the picture. After having been told Logan was in custody, and having again been shown the photographs, Kemp said "I guess my life is over now."
While awaiting trial, Kemp on two separate occasions made admissions to corrections officials. Kemp admitted guilt to two jail officials. He made one comment to Officer Compton after having been asked why he was in administrative segregation or protective custody. Kemp said, "the guy I killed was Hispanic" and the Hispanic guys in the pod where he had previously been felt it was racially motivated. Compton testified, "He says white guys can't help me so I have to be put in protective custody status so they couldn't get at him." Officer Jackson testified that Kemp, in the course of a routine conversation, made a similar statement. Kemp said: "the guy I killed was a Mexican, the Mexicans in the pod I was in are after me. That is why I requested to be moved back here, for my own protection."
Logan's and Kemp's trials were severed. Logan was tried first, convicted, and sentenced to life imprisonment for the murder. A jury found Kemp guilty on all counts. The court found three statutory aggravating factors: a prior conviction of a felony involving the use or threat of violence against a person, the murder was committed with the expectation of pecuniary gain, and the murder was committed in an especially heinous, cruel or depraved manner. After the State presented its case to establish three aggravating factors, and the defense presented its case for mitigation, Kemp addressed the court. He said in part: "The prosecutor, in his alleged wisdom, has portrayed me as being a killer without remorse or regret. This is a wholly inaccurate assessment. I feel a deep and abiding sense of remorse at having permitted friendship to stay my hand in the face of wiser counsel; thus electing not to kill Jeff Logan at a time when both instinct and circumstances demanded his death. You can rest assured that is a lapse of judgment I will never repeat and one which I will bend all my energies towards correcting in the not too distant future. Beyond that, I regret nothing ... The so-called victim was not an American citizen and, therefore, was beneath my contempt. Wetbacks are hardly an endangered species in this state. If more of them wound up dead, the rest of them would soon learn to stay in Mexico, where they belong. I don't show any mercy and I am certainly not here to plead for mercy. I spit on the law and all those who serve it ..." The court did not find any mitigating circumstances and sentenced Kemp to death.
Wikipedia: List of People executed in Arizona Since 1976
1. Donald Eugene Harding White 43 M 06-Apr-1992 Lethal gas Allen Gage, Robert Wise, and Martin Concannon
State v. Kemp, 185 Ariz. 52, 912 P.2d 1281 (Ariz. 1996). (Direct Appeal)
Defendant was convicted in the Superior Court, Pima County, Richard Nichols, J., of first-degree felony murder, armed robbery, and kidnapping, and received death sentence for murder. Appeal was automatic. The Supreme Court, Martone, J., held that: (1) defendant's admissions were voluntary; (2) any error from admission of subsequent homosexual assault was harmless; (3) defense opened door for admission of codefendant's statements; (4) evidence supported kidnapping and armed robbery verdicts; (5) jury was fair and impartial; and (6) sentencing was proper. Affirmed.
MARTONE, Justice.
Kemp was found guilty of first degree felony murder, armed robbery, and kidnapping. He received a death sentence for the murder and prison terms for the other offenses. Appeal to this court is automatic under Rules 26.15 and 31.2(b), Ariz.R.Crim.P., and direct under A.R.S. § 13–4031. We affirm his convictions and sentences.
I. FACTS AND PROCEDURE
On July 11, 1992, at approximately 11:15 p.m., Hector Juarez awoke when his fiancee, Jamie, returned home from work to their shared unit at the Promontory Apartments in Tucson. A short time later, Juarez left to get something to eat. Jamie assumed he went to a nearby Jack-in-the-Box at the corner of Oracle and River Roads. He never returned.
At around midnight, Jamie became concerned that Juarez had not come home and began to look for him. She found both her car and his car in the parking lot. Her car, the one Juarez was driving, was unlocked, smelled of fast food, and had insurance papers on the roof. After checking with Juarez's brother and a friend, Jamie called the police.
Two or three days before Juarez was abducted, Jeffery Logan, an escapee from a California honor farm, arrived in Tucson and met with Thomas Kemp. On Friday, July 10, Logan went with Kemp to a pawn shop and helped him buy a .380 semi-automatic handgun. Kemp and Logan spent the next night driving around Tucson. At some time between 11:15 p.m. and midnight, Kemp and Logan abducted Juarez from the parking area of his complex.
At midnight, Kemp used Juarez's ATM card and successfully withdrew approximately $200. He then drove Juarez out to the Siverbell Mine area near Marana. Kemp walked Juarez 50 to 70 feet from the truck, forced him to disrobe, and shot him in the head twice.
Kemp then made two unsuccessful attempts to use Juarez's ATM card in Tucson. The ATM machine kept the card after the second time. Kemp and Logan painted Kemp's truck, drove to Flagstaff, and sold it. They bought another .380 semi-automatic handgun with the proceeds.
While in Flagstaff, Kemp and Logan met a couple travelling from California to Kansas. At some point they kidnapped the couple and forced them to drive to Durango, Colorado, where Kemp forced the man to disrobe. He then sexually assaulted him.
Later, Kemp, Logan, and the couple drove to Denver. Two weeks after Juarez was abducted, the couple escaped. For reasons unclear of record, Logan left Kemp, contacted the Tucson police about the murder of Juarez, and was arrested in Denver.
With Logan's help, the police discovered Juarez's body. Later that day, the police arrested Kemp at a homeless shelter in Tucson. He was carrying the handgun purchased in Flagstaff and a pair of handcuffs. After having been read his Miranda rights, Kemp answered some questions before he asked for a lawyer. Kemp admitted that he purchased a handgun with Logan on July 10. He said that on the day of the abduction and homicide he was “cruising” though apartment complexes, and that there was a very good possibility he was at the Promontory Apartments. When the police confronted him with the ATM photographs, he initially denied being the man in the picture. After having been told Logan was in custody, and having again been shown the photographs, Kemp said “I guess my life is over now.”
While awaiting trial, Kemp on two separate occasions made admissions to corrections officials. He said that he was in protective custody because the person he killed was Hispanic; the Hispanics in the jail were after him because they thought the crime was racially motivated; and the whites would not protect him.
Logan's and Kemp's trials were severed. Logan was tried first, convicted, and sentenced to life imprisonment for the murder. A jury found Kemp guilty on all counts. The court found three statutory aggravating factors: a prior conviction of a felony involving the use or threat of violence against a person, the murder was committed with the expectation of pecuniary gain, and the murder was committed in an especially heinous, cruel or depraved manner. The court did not find any mitigating circumstances and sentenced Kemp to death.
II. ISSUES PRESENTED
Kemp raises the following issues:
A. Trial Issues
1. Did the trial court err in admitting admissions made by Kemp to jail officials?
2. Was evidence of the subsequent homosexual assault erroneously admitted?
3. Were hearsay statements made by Logan erroneously admitted?
4. Did the prosecutor comment on Kemp's invocation of his Miranda rights?
5. Should the trial court have granted Kemp's Rule 20 motion for judgment of acquittal?
6. Did prosecutorial misconduct deprive Kemp of a fair trial?
7. Did the trial court err in not granting Kemp's motion for change of venue?
8. Did the trial court err in impaneling the jury?
B. Sentencing Issues
1. Is the Enmund finding proper?
2. Does Kemp's California robbery conviction qualify as an offense involving the use or threat of violence against a person (A.R.S. § 13–703(F)(2))?
3. Was the killing committed in an especially cruel manner (A.R.S. § 13–703(F)(6))?
4. Is the finding that Kemp murdered the victim in expectation of pecuniary gain proper and is this aggravating factor constitutional (A.R.S. § 13–703(F)(5))?
5. Did the trial court err in failing to find any mitigating factors and was Kemp's mitigation properly balanced against the aggravating factors?
6. Did the trial judge improperly rely on the presentence report in sentencing Kemp to death?
7. Should Kemp's death sentence be vacated as part of this Court's independent review?
8. Should this Court conduct a proportionality review?
9. Did the trial court err in not ordering a competency hearing?
C. Issues waived at trial
Kemp raises the following issues that were not preserved in the trial court. The issues therefore are waived. Furthermore, there was no fundamental error.
1. Did the trial court grant an overbroad limiting instruction guiding the jury's consideration of evidence that Kemp committed a subsequent homosexual assault?
2. Did the trial court err by not, sua sponte, instructing the jury on lesser included offenses to armed robbery and kidnapping? (Because there is no evidence in the record to support giving the instruction, there is no error. Kemp's defense was that Logan was the killer.)
3. Did the trial court err in admitting unduly prejudicial photographs of Juarez's body? (Kemp stipulated to the introduction of the photographs.)
D. Issues waived for failure to argue on appeal
Kemp raises 12 issues in the appendix to his opening brief. Argument, however, must be in the body of the brief. State v. Walden, 183 Ariz. 595, 605, 905 P.2d 974, 984 (1995). We therefore strike the text contained in the appendix of Kemp's opening brief. All of these issues, which we list in our Appendix, are waived. Counsel, to avoid preclusion, must briefly argue the issue in the body of the brief. Id. As we said in Walden, “[a] list of issues in the brief is not adequate. Nor may the argument be in the appendix.” Id.
III. DISCUSSION
Kemp admitted guilt to two jail officials. He made one comment to Officer Compton after having been asked why he was in administrative segregation or protective custody. Compton testified that Kemp said: “the guy killed was Hispanic and the Hispanic guys in the pod where he had previously been felt it was racially motivated. He says white guys can't help me so I have to be put in protective custody status so they couldn't get at him.” Transcript of June 3, 1993, at 18. (At the motion to suppress hearing held out of the presence of the jury, Compton testified that Kemp said “the guy I killed was Hispanic.” Transcript of June 2, 1993, at 159.)
Officer Jackson testified that Kemp, in the course of a routine conversation, made a similar statement. Kemp said: “the guy I killed was a Mexican, the Mexicans in the pod I was in are after me. That is why I requested to be moved back here, for my own protection.” Transcript of June 3, 1993, at 33.
Kemp argues that these statements were involuntarily made in violation of the Fifth Amendment to the United States Constitution and art. 2, § 10 of the Arizona Constitution. He also argues that they were deliberately elicited by the jail officials in violation of his Fifth Amendment Miranda rights and his Sixth Amendment Massiah rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).
The trial judge's finding that the statements were voluntary was not clearly and manifestly wrong. See State v. Scott, 177 Ariz. 131, 136, 865 P.2d 792, 797 (1993). The record supports the finding that the corrections officials were not attempting to overcome Kemp's will to induce him to inculpate himself. While Jackson and Compton testified that inmates generally had to respond to their inquiries, their questions concerned only the “day to day” circumstances of his incarceration. Kemp was not obligated to make these admissions. Cf. Oregon v. Bradshaw, 462 U.S. 1039, 1045, 103 S.Ct. 2830, 2835, 77 L.Ed.2d 405 (1983) (noting that inquiries between the accused and the State “relating to routine incidents of the custodial relationship[ ] will not generally ‘initiate’ a conversation in the sense in which that word was used in Edwards [ v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (holding that a request for a lawyer requires the police to cease questioning until the accused consults with his or her lawyer unless the defendant initiates further conversation) ].”).
Kemp argues that Miranda requires the exclusion of the statements because he had previously asserted his right to counsel. Edwards v. Arizona, 451 U.S. 477, 101 S Ct. 1880, 68 L.Ed.2d 378 (1981). But Miranda only applies to custodial interrogation. Jackson and Compton did not attempt to elicit an incriminating response from Kemp. See Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) (holding that a comment made by one police officer to another, in the presence of the accused, expressing concern that handicapped children might come across a shotgun, is not a statement designed to elicit an incriminating response).
Compton only asked Kemp why he was in protective custody. He did not interrogate him. Routine inquiries by guards concerning the security status of prisoners are not statements designed to elicit an incriminating response. Id. Compton's question was reasonable and relevant to maintaining order in the prison and protecting Kemp. Similarly, Kemp's statements to Jackson were the product of ordinary, everyday interaction between guard and prisoner. Because Kemp was not interrogated by Compton and Jackson, the admission of his statements did not violate Miranda and his rights under art. 2, § 24 of the Arizona Constitution.
Kemp's assertion that his Sixth Amendment Massiah rights were violated fails for the same reason his Miranda claim fails: the guards did not seek to elicit incriminating evidence from him. Kuhlmann v. Wilson, 477 U.S. 436, 459, 106 S.Ct. 2616, 2630, 91 L.Ed.2d 364 (1986) (holding that “the defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks”). Kemp's admissions therefore were properly admitted.
2. Subsequent Homosexual Assault
Kemp claims that the admission of evidence that he sexually assaulted the man he abducted after selling his truck in Flagstaff unfairly prejudiced his defense and requires reversal. The victim testified that while alone with Kemp in a hotel room, Kemp forced him to undress and then touched his genitals. At trial, the State sought to introduce evidence of the kidnapping, robberies, and sexual assault committed by Kemp and Logan after the murder of Juarez and during the flight from Tucson. The trial court granted Kemp's motion in limine to exclude all of the criminal acts except the sexual assault.
We agree that the trial court erred. All of the kidnapping and robbery evidence should have been admitted as evidence of flight showing consciousness of guilt. See M. Udall & J. Livermore, Law of Evidence § 125, at 258 (3d ed. 1991). The sexual assault is more problematic. At trial, the State offered the sexual assault evidence to establish motive for the abduction of Juarez and to prove the identity of the person who killed him. On appeal, the State abandoned this rationale and argued that the evidence would have been properly admitted to show a common plan or scheme. Rule 404(b), Ariz.R.Evid.
We need not consider the new theory, because even if there was error, it was harmless beyond a reasonable doubt. Kemp's conviction is supported by overwhelming evidence of his guilt, including his own statements to the police and corrections officials. After viewing the record in its entirety, we find beyond a reasonable doubt that the jury would have reached the same verdict if the evidence had been excluded.
Kemp also argues that the prosecutor did not timely disclose that the subsequent homosexual assault would be used against him. Before trial, the court on two occasions ordered the State to disclose the bad acts it would use. See Rule 15.1(a)(6), Ariz.R.Crim.P. The State did disclose the victim of the subsequent homosexual assault as a possible witness approximately six months before trial. While it never provided Kemp with a list of his bad acts, Rule 15.1(a)(6) appears to apply to prior acts and not subsequent conduct. But even if Rule 15.1(a)(6) applies here, there simply was no prejudice.
Discovery rulings are affirmed unless there is an abuse of discretion. See State v. Krone, 182 Ariz. 319, 321, 897 P.2d 621, 624 (1995). Kemp argues that he was unable to obtain a fair and impartial jury and he was unable to develop any impeachment or motive evidence against the victim of the subsequent homosexual assault. We disagree.
First, the record is clear that Kemp's trial counsel was aware that Kemp's homosexuality potentially would be placed before the jury. Logan's statements to the police and media raised the issue. In addition, Logan's trial preceded Kemp's, and the witness Kemp sought to preclude testified regarding the same events at Logan's trial. Furthermore, Kemp successfully suppressed other evidence of his homosexuality, including sexually explicit photographs and a journal purportedly detailing his homosexual encounters. Although Kemp did not have a ruling regarding the bad act evidence prior to voir dire, he was clearly aware of the issue, was not surprised, and could have developed it at voir dire if he so wanted.
Second, Kemp's argument that he was unable to develop impeachment or motive evidence is without merit. The only connection the witness had to Kemp was the misfortune of being his kidnapping, robbery, and sexual assault victim. The witness was listed approximately six months before Kemp's trial and testified about the same events at Logan's trial. There was no abuse of discretion.
3. Logan's Hearsay Statements
Kemp claims the court erred in admitting evidence that Logan made statements to the police about the murder. Before trial, and after Kemp's and Logan's trial was severed, Kemp filed a motion to preclude Logan's hearsay statements. Apparently, the motion was not ruled upon. At trial, after the judge ruled that defense counsel had opened the door to their admission, the police detective who had interrogated both Logan and Kemp was permitted to testify to some of the statements made by Logan.
On direct examination during the State's case-in-chief, the police detective testified that he questioned Kemp after his arrest and that Kemp agreed to answer some of his questions. Through the police detective, some of Kemp's admissions concerning his activities and association with Logan before the murder were admitted.
On cross-examination, defense counsel elicited answers that all of the physical evidence, with the exception of the “fuzzy” ATM photograph, implicated Logan but not Kemp. He then went on to ask:
Q: There is no evidence that Kemp had possession of the gun that killed Hector [Juarez] at any time after the purchase?
A: No.
Q: And in fact, the only evidence you have got of what happened to that gun is it was used to kill Hector and Jeff Logan had it; no evidence Thomas Kemp was in the Siverbell Mines area that night, is there?
A: No.
Q: There is no evidence that Thomas Kemp knew?
A: No.
Q: There is no evidence that Thomas Kemp was at the scene where the body was found at all?
A: No.
Transcript of June 3, 1993, at 69 (emphasis added).
The State on re-direct was permitted to question the police detective about his interrogation of Logan to rebut the inference that no evidence connected Kemp to Juarez's murder in Marana. The police detective testified to the following: he had a tape recorded conversation with Logan; Logan said he had been in Tucson two or three days before Juarez's disappearance; Logan told him what happened to Juarez; and Logan told him what he and Kemp were doing the night Juarez disappeared. The trial judge determined that this limited line of inquiry was sufficient to meet the improper inference created by Kemp's defense counsel. The trial judge did not permit the State to elicit Logan's statements that Kemp shot Juarez and to explain how it was that Logan knew where the body was located.
Defense counsel objected to the evidence based on hearsay. The trial judge ruled that the questions asserting that “no evidence” connected Kemp to the murder scene created a false inference and opened the door enough to allow the State to rebut this inference.
On appeal, the State argues that some of this evidence is not hearsay because the statements were not offered for proof of their truth, but just for the fact that they were made. Rule 801(c), Ariz.R.Evid. See John W. Strong, 2 McCormick on Evidence § 250, at 111 (4th ed. 1992). However, the statements were also offered by the State to show that Kemp participated in the murder. Because this is a mixed question, we analyze these statements as if they were hearsay.
Kemp's questioning on cross-examination created the inference that no evidence connected him to Juarez's killing. In fact, there was evidence, Logan's statements, connecting Kemp to the murder scene. Kemp, of course, is entitled to comment on the strength of the State's case against him. If Kemp's defense counsel had asserted that all of the physical evidence inculpated Logan but not Kemp, or otherwise limited his inquiry, no improper inference would have been raised. Kemp's counsel went beyond this. He left the jury with the impression that no evidence connected Kemp to the murder.
Kemp invited error with his cross-examination. As we stated in State v. Lindsey, “[i]n essence the ‘open door’ or ‘invited error’ doctrine means ‘that a party cannot complain about a result he caused.’ ” 149 Ariz. 472, 477, 720 P.2d 73, 78 (1986) (quoting M. Udall & J. Livermore, Law of Evidence § 11, at 11 (3d ed. 1991)). By asserting the non-existence of evidence connecting Kemp to the murder, defense counsel cannot now claim error occurred by meeting the assertion with contrary proof.
We reached the same conclusion in State v. Martinez, 127 Ariz. 444, 622 P.2d 3 (1980). Martinez was being tried for armed robbery. He was arrested after a subsequent robbery attempt went awry; his accomplice escaped and was not arrested. Before trial the court granted Martinez's motion to preclude evidence of the subsequent attempted robbery because its prejudice substantially outweighed its probative value.
When Martinez took the stand in his own defense, he testified that he knew his accomplice only “vaguely” and had met him “once when—last November, I think just briefly.” Id. at 446, 622 P.2d at 5. He also testified that he had seen the rifle used in the robbery in someone else's possession, but was vague about the circumstances. Id. The trial court allowed the State to elicit testimony regarding the subsequent robbery attempt, including testimony that Martinez struggled for control of the rifle. Id. at 447, 622 P.2d at 6. We rejected Martinez's challenge to the admission of this testimony and stated that “[w]hen the defendant, as here, ‘opens the door’ by denying certain facts which the evidence, previously excluded, would contradict, he may not rely on the previous ruling that such evidence will remain excluded.” Id.
In all events, Kemp suffered no prejudice from the admission of Logan's statements. The only new information the jury learned, that it did not already know from other sources, was that Logan made a statement about what happened the night Juarez was abducted, robbed, and killed. The other evidence was cumulative to Kemp's admissions. Specifically, through Kemp's statement after his arrest, the jury had already been informed of Kemp's concern about Logan, the fact that Logan and Kemp had spent a few days together before the homicide, and that they were together the night of the homicide. Any error would have been harmless in light of the substantial evidence of Kemp's guilt.
4. The Doyle Arguments
Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), prohibits the state's use of the accused's invocation of his Fifth Amendment rights. The State asked a police detective about a statement Kemp made after his arrest. On cross-examination, Kemp's counsel asked the police detective about other aspects of Kemp's statement. During the redirect examination of the police detective, the prosecutor asked Detective Salgado:
Q: At some point, sir, in that same conversation with Mr. Kemp, did you actually come out and ask him questions about the apartment complex parking lot and how Hector Juarez may have gotten in the vehicle with Mr. Kemp.
A: Yes, I did.
Q: At that point, sir, did Mr. Kemp express reluctance to answer your question about the parking lot?
Transcript of June 3, 1993, at 87.
Kemp's objection to the question was sustained before the detective could answer. Although a transcript of Kemp's statement is not part of the record, it appears the answer to the question about the parking lot would have been that Kemp said he was getting nervous. Id. at 98. Apparently, the question to which Kemp asserted his Miranda rights was a later question asking whether Juarez got into his truck. Id. Kemp points to no part of the record to show otherwise. There was no error.
But even assuming it was an improper question, Kemp suffered no prejudice because his objection was immediately sustained before the witness answered the question. In similar cases, we have held that a sustained objection protects a party from improper questions. State v. Sullivan, 130 Ariz. 213, 217–18, 635 P.2d 501, 505–06 (1981) (holding that prejudice from a question that violated Doyle was cured by immediately sustaining objection before the question was answered); State v. Clark, 110 Ariz. 242, 244, 517 P.2d 1238, 1240 (1974) (holding that prejudice from question concerning the treatment of defendants found not guilty by reason of insanity to be cured by immediately sustaining objection and by a curative instruction to the jury). Likewise, Kemp's motion for a mistrial was properly denied.
Kemp also argues that the prosecutor commented on Kemp's silence during closing argument. At closing argument, the prosecutor said: “In this particular case, Mr. Kemp and Mr. Logan obviously were out together as Mr. Kemp told Detective Salgado when he talked to him. He was evasive in some of the areas he was giving answers to.”
Defense counsel did not object, and thus the point is waived. But even had the point been preserved, there was no error. The prosecutor said that Kemp answered questions evasively. This argument is supported by the statements Kemp made to the police after his arrest and before he asked for a lawyer. Kemp said that he was “cruising” apartment complexes. He said there was “a very good possibility” that he was at the apartment from which Juarez was abducted. He said he was going “in and out” of various apartment complexes. Transcript of June 3, 1993, at 57, 60–61. These answers are evasive. Lawyers are entitled to make arguments based on the evidence and reasonable inferences that can be drawn from the evidence. E.g., State v. Woods, 141 Ariz. 446, 454, 687 P.2d 1201, 1209 (1984). The prosecutor's closing argument is supported by the evidence.
5. The Kidnapping and Armed Robbery Convictions
Kemp argues that the evidence is insufficient to find that the victim was kidnapped and robbed, and that his motion for a directed verdict should have been granted. Kemp abducted the victim from the parking area of his apartment complex. A short time later, Kemp used the victim's ATM card at a location between the place of abduction and the site of the murder. The only reasonable inference to be drawn from the evidence is that Kemp and Logan abducted the victim using the gun purchased the day before, forced him to reveal his ATM personal identification number, and then took his money. The evidence viewed in the light most favorable to sustaining the verdict supports the kidnapping and armed robbery convictions.
6. Prosecutorial Misconduct
Kemp claims ten instances of prosecutorial misconduct. All but one of these instances are waived because Kemp failed to object at trial. And none of the nine waived instances can be deemed fundamental error. The nine alleged instances of prosecutorial misconduct are either immaterial and non-prejudicial statements, or have been taken out of context by Kemp on appeal.
The preserved instance of alleged prosecutorial misconduct is the following statement by the prosecutor made during closing argument: “[Defense counsel] has gone so far as to suggest we don't even know if it happened in Pima County. You can be sure of one thing. You wouldn't hear the case, number one, and so that particular argument is simply without merit.” Transcript of June 4, 1993, at 59. The trial judge overruled Kemp's objection to this statement. The State on appeal concedes that this statement is “arguably improper” but asserts that it is nonetheless harmless. We agree. Defense counsel during closing argument asserted that the State had to prove that Juarez was killed in Pima County. However, the State only had to prove that an element of the offense, such as the kidnapping or the armed robbery, occurred in Pima County. A.R.S. § 13–109. The State proved this, so error, if any, would be harmless.
7. Change of Venue
Kemp argues that the trial judge should have granted a motion for change of venue because of pretrial publicity. Kemp has not met his burden of showing that the limited pretrial publicity the case received requires this court to presume prejudice. While it is true that Logan made a number of accusations before trial that were reported in the press, those same press articles contained statements by prosecutors and Kemp's defense counsel attacking Logan's veracity and character. The exposure of Kemp's jurors to pretrial publicity was minor and inconsequential.
In addition, the record indicates that Kemp was able to discover whether any juror was actually prejudiced by the pretrial publicity. No juror was so prejudiced, and Kemp does not claim otherwise. The motion was properly denied.
8. Other Jury Issues
Kemp raises six additional jury selection arguments. First, he argues that the court erred in not providing him a jury roster in advance. Second, he claims the trial court erred in denying his motion to submit a questionnaire to the jury. Third, he claims the trial court should have allowed the lawyers to conduct individual voir dire. Fourth, he claims the death qualification procedure deprived him of a fair trial. Fifth, he claims that the trial court erred in refusing to strike one venire person for cause. Sixth, and finally, he claims that the trial court erred in striking another venire person for cause. All of these claims are without merit.
After reviewing the record, we are convinced that Kemp was tried by a fair and impartial jury. Kemp's jury selection arguments, presented in three and a half pages in his 89 page opening brief, are unclear, lack adequate legal argument and citation to the record. The crux of Kemp's jury arguments seems to be that he was denied an opportunity to question the jury regarding their attitudes and beliefs on homosexuality. But he had the opportunity and elected not to take it. See ante, at 1288. Kemp's first four jury claims are inadequately argued and appear to be without merit. We summarily reject them. See Rule 18.3, Ariz.R.Crim.P. (jury roster to be supplied on day jury selection is commenced); Rule 18.5(d), Ariz.R.Crim.P. (trial court shall conduct voir dire and in its discretion allow counsel to question jurors); State v. Walden, 183 Ariz. 595, 905 P.2d 974 (1995) (decision to submit a jury questionnaire in the sound discretion of the trial court; death qualification of jury permitted).
Kemp also claims that the trial court erred in not striking a particular juror for cause. The juror indicated that his father-in-law had been convicted of incest twenty years ago. He indicated this would not affect his ability to be impartial. The trial court did not abuse its discretion in failing to strike that juror for cause. Id. at 608–09, 905 P.2d at 987–98.
Finally, Kemp claims the trial judge abused his discretion in striking another juror for cause. The juror indicated that he could not participate. He said: “I can't make a decision in this case. I don't have a good excuse. It's too complicated.” Transcript of June 2, 1993, at 95. The juror's response indicated he could not be fair or impartial. There was no abuse of discretion. Id.
B. Sentencing Issues
Kemp challenges the trial court's finding, pursuant to Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), that he actually killed and intended to kill the victim. We reject this claim. First, Kemp's statements to the corrections officials support the finding. Second, two ATM photographs taken shortly after the victim disappeared show someone resembling Kemp using the victim's ATM card. Third, when police confronted Kemp with the photographs, and insisted he was the one using the card, he replied, “Well, I know you guys aren't stupid.” Fourth, Kemp purchased the murder weapon the day before the murder.
2. Prior Violent Conviction
Kemp first argues that the State did not prove Kemp's prior California robbery conviction beyond a reasonable doubt. However, this argument is without merit because he stipulated to his previous conviction.
Kemp also argues that his California robbery conviction is not a prior crime of violence against a person under A.R.S. § 13–703(F)(2). We disagree. Both the State and Kemp agree that the California statute under which Kemp was convicted requires the taking of property from a person accompanied by “force or fear” and defines fear as either: “1) The fear of an unlawful injury to the person or property of the person robbed.... or 2) The fear of an immediate and unlawful injury to the person or property of another in the company of the person robbed at the time of the robbery.” Cal.Penal Code §§ 211 (1951) (defining robbery) & 212 (1963) (defining force or fear) (emphasis added). Kemp argues that the California statute does not satisfy the (F)(2) factor because its statutory definition does not require the use or threat of violence against a person. Robbery could be committed by threatening force against property.
A prior conviction satisfies A.R.S. § 13–703(F)(2) only if it involves the use or threat of violence against a person, State v. Arnett, 119 Ariz. 38, 579 P.2d 542 (1978), according to its statutory definition, State v. Gillies, 135 Ariz. 500, 662 P.2d 1007 (1983). Extrinsic evidence explaining the prior conviction is not admissible to prove that a prior conviction involved violence against a person. State v. Romanosky, 162 Ariz. 217, 227, 782 P.2d 693, 703 (1989).
We addressed the California robbery statute in State v. Correll, 148 Ariz. 468, 478–79, 715 P.2d 721, 731–32 (1986), and concluded that a robbery conviction under it satisfied (F)(2), at least where it involved the use of a firearm. Yet it was not an armed robbery conviction. The Court treated the robbery conviction as though it were armed robbery because of the sentence enhancement caused by the use of a firearm.
The meaning of Correll is unclear, if the court actually determined that it was “ theoretically possible” to commit a robbery, with or without a weapon, under the California statute in which property, and not a person, was subjected to the threat or use of violence. Id. at 479, 715 P.2d at 732. But we do not read Correll to say that it is even theoretically possible to commit armed robbery without threatening violence against a person. The Court continued: “As a practical matter ‘armed’ robbery against the property of a victim does not occur without use or threat of violence against the person as well.” Id. at 479, 715 P.2d at 732. Thus, the fact that a firearm was used necessarily involved the threat of violence.
Even though it was the use of a firearm that was dispositive in Correll, we agree with the State that it is also possible to envision a “non-violent” robbery accomplished without a firearm. First, even though it is possible to commit robbery in California by threatening force against property, the person from whom property is being taken actually experiences the fear. Under State v. Arnett, 119 Ariz. 38, 51, 579 P.2d 542, 555 (1978), this fear is the violence. Id. (defining violence as the “exertion of any physical force so as to injure or abuse.”). Second, the California robbery statute requires the “taking of personal property in the possession of another, from his person or immediate presence, and against his will” by means of force or fear. Cal.Penal Code § 211 (1951) (emphasis added). Implicit in the California robbery statute is the danger that either the taking itself or the foreseeable resistance to the taking presents the risk of violence. This threat of violence is what makes robbery a more serious crime than larceny. And this threat of violence is the same whether the robbery is accomplished by threatening force against a person or against property. Robbery is clearly a crime against a person. It necessarily carries with it the threat or use of violence. Accordingly, Kemp's robbery conviction satisfies A.R.S. § 13–703(F)(2).
3. Cruelty
Relying on State v. Poland, 132 Ariz. 269, 645 P.2d 784 (1982), appeal after remand, 144 Ariz. 388, 698 P.2d 183 (Patrick) and 144 Ariz. 412, 698 P.2d 207 (Michael) (1985), Kemp argues that the trial court erred in finding that the murder was committed in an especially cruel manner. A.R.S. § 13–703(F)(6). Evidence about “[a] victim's certainty or uncertainty as to his or her ultimate fate can be indicative of cruelty and heinousness.” State v. Gillies, 142 Ariz. 564, 569, 691 P.2d 655, 660 (1984).
The evidence supports the finding. Juarez was abducted from the parking area of his apartment complex. His body was discovered approximately 100 feet off a dirt road in the desert north of Tucson. At some point, after his abduction, Juarez provided Kemp with his personal identification number. Two spent bullet casings were found in the area around his body. He died of two gunshot wounds to the back of the head. Kemp on two occasions admitted the killing.
The only reasonable inference from these facts is that Juarez suffered incredible terror from the moment of his abduction until his murder. Once Logan and Kemp had taken him about fifteen miles north of Tucson, Juarez must have experienced great and terrible uncertainty about his fate. The evidence indicates that Kemp must have led Juarez at gunpoint from the truck to the place where the killing occurred. Once he was forced away from the truck and forced to disrobe, he must have known that his murder was imminent. We think this case is more like State v. Bible, 175 Ariz. 549, 858 P.2d 1152 (1993), than Poland, supra. The cruelty finding is proper.
4. Pecuniary Gain
The trial judge found as an aggravating factor that the murder was committed for pecuniary gain. A.R.S. § 13–703(F)(5). Kemp argues that this factor is unconstitutional as applied here because it repeats an element of the underlying crime of felony murder. Kemp also argues the finding is not supported by the evidence. We disagree with both contentions.
Kemp first challenges the constitutionality of the (F)(5) factor, asserting that any homicide occurring in the course of an armed robbery will also support a finding that the murder was committed for pecuniary gain. We have previously rejected this argument. State v. Greenway, 170 Ariz. 155, 163–65, 823 P.2d 22, 30–32 (1991). In any event, Juarez's killing in the course of the kidnapping is first degree felony murder, wholly apart from the armed robbery conviction. A.R.S. § 13–1105. Thus, Kemp's argument is irrelevant to the constitutionality of the pecuniary gain finding in this case.
Second, the evidence supports the finding in this case. Kemp purchased the murder weapon the day before the murder. Juarez's ATM card was used almost immediately after his abduction and before his murder. Kemp committed the armed robbery, kidnapping, and murder with the expectation of receiving something of pecuniary value. See State v. Spencer, 176 Ariz. 36, 859 P.2d 146 (1993). The finding is proper.
5. Mitigating Factors
Kemp did not seek to prove the existence of any statutory mitigating factors at sentencing. Kemp attempted to prove the existence of non-statutory mitigation but did not offer any evidence or present witnesses.
Through a sentencing memorandum, Kemp sought to prove the following non-statutory mitigating factors: Kemp suffers from a personality disorder making him perceive others as “selfish, dishonest, and opportunistic” whose “only recourse is to get what [he] can for [himself],” Record on Appeal at 324; Kemp failed to receive requested psychological counselling during previous periods of incarceration in California and Arizona, id. at 325; his good behavior, or more specifically, his lack of a disciplinary record, during his previous prison terms, id. at 325–26; his good family background and his mother's dependency upon him, id. at 326; the fact that he is a follower, based on the evidence presented at trial, id. at 327–28; and the fact that the conviction was based on circumstantial evidence, id. at 328–29. Kemp did not offer evidence of a neuropsychological examination that he admits found no evidence of brain impairment.
After the State presented its case to establish three aggravating factors, and the defense presented its case for mitigation, Kemp addressed the court. He said in part:
The prosecutor, in his alleged wisdom, has portrayed me as being a killer without remorse or regret. This is a wholly inaccurate assessment. I feel a deep and abiding sense of remorse at having permitted friendship to stay my hand in the face of wiser counsel; thus electing not to kill Jeff Logan at a time when both instinct and circumstances demanded his death.
You can rest assured that is a lapse of judgment I will never repeat and one which I will bend all my energies towards correcting in the not too distant future. Beyond that, I regret nothing ...
The so-called victim was not an American citizen and, therefore, was beneath my contempt. Wetbacks are hardly an endangered species in this state. If more of them wound up dead, the rest of them would soon learn to stay in Mexico, where they belong.
I don't show any mercy and I am certainly not here to plead for mercy. I spit on the law and all those who serve it ...
Transcript of July 9, 1993, at 17–18.
The court found that Kemp did not prove the existence of any mitigation. We agree.
The court went on to state that even if the defendant had proved the existence of mitigation, any one of the aggravating factors it found were independently sufficient to call for the death penalty. Kemp argues that this finding makes clear that the trial judge did not consider his mitigation. We disagree. This finding indicates that the trial judge did consider the evidence Kemp offered for mitigation; he found that anything Kemp offered, even if proved, would not have been sufficiently substantial to call for leniency.
Kemp complains that the trial judge relied upon a sentencing order prepared in advance and delivered at the conclusion of the hearing. We find no merit to his argument that this indicates a failure to consider Kemp's proffered mitigation. Kemp also argues that the weighing process was faulty, apparently because he disagrees with the weight given to each mitigating factor. Our review of the record indicates that the trial judge properly determined that there was no mitigation, or alternatively, no mitigation sufficiently substantial to call for leniency.
6. Reliance upon the presentence report
Kemp argues that the trial judge relied upon the presentence report which apparently contained inadmissible evidence. However, our review of the special verdict indicates that the trial judge only specifically relied upon the presentence report, which is not part of the record, in two instances. First, he relied on it in part to find that Kemp had previously been convicted of a crime of violence. But Kemp stipulated to the fact of his prior California robbery conviction. Second, the trial judge indicated he relied upon it as a possible source of mitigation. While evidence in support of aggravation must be admissible under the rules of evidence, evidence in support of mitigation does not. A.R.S. § 13–703(C). Kemp does not allege that he suffered prejudice from this reliance. The findings of the trial judge in the special verdict are all supported by the evidence.
7. Independent Review
This Court independently reviews the record in all capital cases and determines whether the death sentence is appropriate. State v. Hill, 174 Ariz. 313, 326, 848 P.2d 1375, 1388 (1993). On this appeal we affirm Kemp's three aggravating factors. After balancing the aggravating factors against evidence offered by the defendant, which we find does not rise to level of mitigation, we affirm Kemp's death sentence. Under A.R.S. § 13–703(E), once we have determined the presence of one aggravating factor, and no mitigation, we must affirm the death sentence. See Walton v. Arizona, 497 U.S. 639, 649–51, 110 S.Ct. 3047, 3055–56, 111 L.Ed.2d 511 (1990).
Even if Kemp's proffered mitigation rose to the level of mitigation, we agree with the trial court that none of this evidence is sufficiently substantial to call for leniency.
8. Proportionality Review
Kemp argues he is entitled to have his sentence reduced to life under a proportionality review. This court no longer conducts proportionality reviews of death sentences. State v. Salazar, 173 Ariz. 399, 844 P.2d 566 (1992).
9. Kemp's Competency
Kemp addressed the court at sentencing. Ante, at 1295. Kemp now argues that the trial judge erred in not ordering, sua sponte, a competency hearing under Rule 11.1, Ariz.R.Crim.P. There was no abuse of discretion here. Kemp's statement does not cast doubt on his ability to understand the nature of the proceedings. See Rule 11.3, Ariz.R.Crim.P. It does not indicate that he lacked the ability to assist in his defense. If anything, his statement says much about the absence of mitigation here and the propriety of the sentence. Because there were no grounds to conduct a competency hearing, the trial judge did not err in failing to order one sua sponte.
IV. DISPOSITION
We reviewed the record for fundamental error and found none before we decided State v. Smith, 184 Ariz. 456, 910 P.2d 1 (1996) (holding that the repeal of A.R.S. § 13–4035 is procedural and not substantive and therefore fully retroactive).FN1 For the foregoing reasons, we affirm Kemp's convictions and sentences.
FN1. The relationship, if any, between our independent review of the propriety of a death sentence and the discontinuance of fundamental error review will have to await another day—in a case in which it is raised and briefed.
FELDMAN, C.J., ZLAKET, V.C.J., and MOELLER and CORCORAN, JJ., concur.
APPENDIX
Issues waived for failure to argue on appeal.
a. Arizona's death penalty statute violates equal protection by providing non-capital defendants with a jury determination of sentence-enhancing allegations and not providing capital defendants with jury determination of aggravating factors.
b. Arizona's death penalty statute fails to sufficiently channel the sentencer's discretion.
c. Arizona's death penalty statute contains no guidelines for prosecutors.
d. The death penalty in Arizona violates the Eighth and Fourteenth Amendments of the United States Constitution and art. 2, §§ 1, 4, and 15 of the Arizona Constitution.
e. The death penalty in Arizona has discriminatorily been applied in Arizona against poor, young males whose victims are caucasian in violation of the Fourteenth Amendment and Ariz. Const. art. 2, §§ 13 and 15. (In this case, however, the victim is a young Mexican male and the defendant is a middle-aged caucasian.)
f. The trial court did not find that death is “appropriate.”
g. Arizona's death penalty statute prevents the consideration of all mitigating factors not meeting the evidentiary standard.
h. Placing the burden of proof on the defendant to show that life is the appropriate sentence is unconstitutional.
i. Judge sentencing violates Kemp's right to have a jury consider all the elements of the offense.
j. A.R.S. § 13–703(F)(6) factor defining cruelty, heinous, and depravity is unconstitutionally vague.
k. The felony murder statute violates the Eighth Amendment by creating a strict liability offense.
l. The trial court erred by failing to instruct the jury that the proper mens rea for felony murder requires a reckless indifference to human life.
Kemp v. Ryan, 638 F.3d 1245 (9th Cir. 2011). (Habeas)
Background: State prisoner petitioned for writ of habeas corpus after his conviction for felony first-degree murder, armed robbery, and kidnapping, and from his capital sentence, had been affirmed on appeal, 185 Ariz. 52, 912 P.2d 1281. The United States District Court for the District of Arizona, Frank R. Zapata, Senior District Judge, 2008 WL 4183379, denied petition, but granted certificate of appealability, 2008 WL 4418164. Prisoner appealed.
Holdings: The Court of Appeals, Callahan, Circuit Judge, held that:
(1) Arizona Supreme Court could rely on position that had been adopted only by plurality of United States Supreme Court;
(2) district court reasonably denied prisoner's request for discovery, and request for evidentiary hearing;
(3) due process did not require re-voir dire of jury after trial court had denied motions in limine that would have barred introduction of subsequent homosexual assault. Affirmed.
CALLAHAN, Circuit Judge:
Thomas Arnold Kemp raises three issues in his appeal from the district court's denial of his habeas petition seeking relief from his state conviction for felony first-degree murder, armed robbery and kidnaping and from his capital sentence. First, Kemp asserts that his rights to be free from compelled self-incrimination and to counsel under the Fifth, Sixth, and Fourteenth Amendments were violated when correctional officers asked him questions and his incriminating statements were admitted at trial. Kemp also argues that the district court abused its discretion in denying him discovery to prove this claim. Second, Kemp contends that without his incriminating statements, which should have been suppressed, the prosecution failed to prove beyond a reasonable doubt that he possessed the requisite mental state for the imposition of the death penalty. Third, Kemp claims that he was denied due process under the Fourteenth Amendment when the prosecutor was dilatory in giving notice that he would introduce evidence that Kemp committed a homosexual sexual assault, the trial court failed to rule the subsequent bad act admissible until after the jury had been voir dired, and the trial court then denied Kemp's request to voir dire the jury on homosexual bias. We affirm. Kemp has not shown that the Arizona Supreme Court's opinion affirming his conviction and capital sentence was either “an unreasonable application of, clearly established Federal law,” or “an unreasonable determination of the facts,” as required for relief under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254.
I
The underlying criminal acts were described as follows by the district court:
On July 11, 1992, at approximately 11:15 p.m., Hector Juarez awoke when his fiancee, Jamie, returned from work to their residence at the Promontory Apartments in Tucson. A short time later, Juarez left to get something to eat. Jamie assumed he went to a nearby fast food restaurant.
At around midnight, Jamie became concerned that Juarez had not come home and began to look for him. She found both her car and his car in the parking lot. Her car, which Juarez had been driving, was unlocked and smelled of fast food; the insurance papers had been placed on the vehicle's roof. After checking with Juarez's brother and a friend, Jamie called the police.
Two or three days before Juarez was abducted, Jeffery Logan, an escapee from a California honor farm, arrived in Tucson and met with Petitioner. On Friday, July 10, Logan went with Petitioner to a pawn shop and helped him buy a .380 semi-automatic handgun. Petitioner and Logan spent the next night driving around Tucson. At some time between 11:15 p.m. and midnight, Petitioner and Logan abducted Juarez from the parking area of his apartment complex.
At midnight, Petitioner used Juarez's ATM card and withdrew approximately $200. He then drove Juarez out to the Silverbell Mine area near Marana. Petitioner walked Juarez fifty to seventy feet from the truck, forced him to disrobe, and shot him in the head twice.
Petitioner then made two unsuccessful attempts to use Juarez's ATM card in Tucson. The machine kept the card after the second attempt. Petitioner and Logan repainted Petitioner's truck, drove to Flagstaff, and sold it. They bought another .380 semi-automatic handgun with the proceeds.
While in Flagstaff, Petitioner and Logan met a man and woman who were traveling from California to Kansas. They abducted the couple and made them drive to Durango, Colorado; in a motel room there, Petitioner forced the man to disrobe and sexually assaulted him.
Later, Petitioner, Logan, and the couple drove to Denver, where the couple escaped. Logan and Petitioner separated. Logan subsequently contacted the Tucson police about the murder of Juarez. He was arrested in Denver.
With Logan's help, the police located Juarez's body. Later that day, the police arrested Petitioner at a homeless shelter in Tucson. He was carrying the handgun purchased in Flagstaff and a pair of handcuffs. After having been read his Miranda rights, Petitioner answered some questions before asking for a lawyer. He admitted that he purchased a handgun with Logan on July 10. He said that on the day of the abduction and homicide he was “cruising” through apartment complexes, possibly including the Promontory Apartments. When confronted with the ATM photographs, he initially denied being the individual in the picture. After having been told that Logan was in custody and again having been shown the photographs, Petitioner said, “I guess my life is over now.”
B. Kemp's Incriminating Statements While in Jail.
After he was arrested, Kemp was advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Later in the evening, Kemp was interviewed by Detective Salgado, but when he was asked about his contact with Juarez, Kemp invoked his right to counsel.
Kemp was taken to the Pima County Jail. During his stay in the jail, Kemp made two incriminating statements. The district court described the events surrounding the statements as follows:
John Jackson, an officer at the Pima County Jail, walked by Petitioner's cell in the disciplinary pod and they had a three to five minute conversation. Jackson did not recall who initiated the interaction. During the conversation, Petitioner volunteered that he had requested to be moved to the disciplinary pod “because the guy I killed was a Mexican. That the Mexicans in the pod were after him, and he wanted to be moved from there for his own protection.” At the time, Jackson did not write a report on the conversation.
Kippy Compton, a Pima County Sheriff's Department correctional officer, recognized Petitioner from a general population pod at the jail. On December 14, 1992, he transported Petitioner within the jail and saw on his identification card that he was in AS1, which is a protective custody status. Compton testified that he must have been off the day they were briefed about Petitioner's status change; the officers are briefed because they need to be aware of any other inmate(s) the person may need to be kept away from. Compton asked Petitioner why he was in AS1 and testified that Petitioner gave the following response: “that Hispanic guy I killed or the guy I killed was Hispanic and the Hispanic guys in the pod think it's racially motivated, and he—he said the whites said they can't help me or won't help me, and so I asked to be put on protective custody.” Compton testified that he was not trying to ask Petitioner about his case because the inmates are not going to talk about their cases and he didn't care. Compton did not question Petitioner further, did not threaten him, or make any promises to him. Compton testified that inmates are expected to respond when questioned by a correctional officer. After thinking about it, Compton decided to write the conversation up in a memo.
While Jackson was carpooling home with Compton one evening, Compton mentioned his conversation with Petitioner and then Jackson mentioned that he had a similar statement from Petitioner. After that conversation, Jackson prepared a report about his conversation with Petitioner.
Kemp filed a pretrial motion to suppress the two statements he had made to Jackson and Compton. The trial court held a hearing on the motion at which both officers testified. The state court found that Kemp's statements to the officers were voluntary and admissible because the conversations were informal and they were not intended or designed to elicit incriminating responses. The officers testified at trial consistent with their testimony at the suppression hearing.
C. The Alleged Curtailment of Voir Dire.
In September 1992, Kemp, through his attorney, first sought discovery with respect to possible prior and subsequent bad acts that the prosecutor might seek to present at trial. At a December 1992 pretrial hearing, the prosecutor agreed to give Kemp a list of prospective witnesses and noted that in the afternoon he would be interviewing the “couple that were kidnaped out of Flagstaff.” On January 25, 1993, Kemp filed a motion seeking discovery of evidence concerning the alleged kidnaping of the couple, which the trial court granted.
Apparently, the State did not provide Kemp with the information requested, and on May 26, 1993, counsel filed two motions in limine to preclude the presentation of any evidence of any prior or subsequent bad acts by Mr. Kemp. One of the motions specifically requested that the kidnaped couple “not be allowed to testify as to any inappropriate sexual behavior by Mr. Kemp towards [the husband].”
On June 2, 2003, the case was called for trial in the Superior Court of Arizona, in and for the County of Pima. The judge was intent on selecting a jury, and when Kemp's attorney, Mr. Larsen, noted that there were unresolved pretrial motions, the court indicated that it intended to begin jury selection “before we hear anything on the motion for change of venue.” The prosecutor, Kenneth Peasley, tendered a new witness list, which included the husband abducted in Flagstaff. He indicated that the husband would present evidence concerning: (1) Kemp's silence to statements made by Logan in the husband's presence; (2) the husband's kidnaping; and (3) that “in the room in Durango Mr. Kemp attempt[ed] to sexually molest and assault” the husband. Peasley further claimed that the sexual assault was “proof of all motives that Mr. Kemp has for the killing, and also explains conditions here in Tucson.” After Peasley's comments, the trial judge stated “I don't need to hear from you on that now, Mr. Larsen.”
A little later, before potential jurors entered the courtroom, Larsen reiterated that he wanted to know “prior to trial what physical evidence and exhibits” the prosecutor intends to use. The prosecutor apparently stated that he intended to introduce materials seized from Kemp, including photographs of naked men, but would make no reference to Kemp's sexually explicit materials and alleged homosexual act in his opening statement. The trial court indicated that the matter would be considered later.
The trial court then asked the prosecutor and defense counsel whether they were ready to proceed and each answered yes. The prospective jurors were sworn in and the judge proceeded to voir dire the jury panel. When the trial judge asked counsel to pass on the panel, defense counsel stated that he had a number of questions. Defense counsel requested a ruling on the evidence that the prosecutor sought to introduce “regarding any sexual matters as it pertains to both [victims].” Larsen was particularly concerned with the possible impact of allegations of sexual molestation on a juror whose father-in-law had been convicted of an incest charge. The trial judge proceeded to ask additional questions of that juror, but did not mention homosexuality. When defense counsel objected that the questions did not begin “to approach what was necessary,” the trial judge responded that Larsen had made his record.
After the jury was empaneled, the trial court considered the outstanding motions. The judge, Larsen, and Peasley engaged in an extended discussion of the prosecutor's desire to have the husband testify concerning Kemp's alleged sexual assault and to present other evidence of Kemp's homosexuality. Larsen argued that the alleged incident was irrelevant and should not be admitted as it might inflame the jury. At one point he stated “if we are going to allow this—this onslaught of homosexual activity I want to re- voir dire the jury. I want to find out what their thoughts are on homosexuality.” The trial judge eventually determined that the “sexual contact with [the husband] is sufficiently relevant to allow that to be admitted into evidence.” The trial judge, however, limited the other evidence that could be admitted. The next day, defense counsel reiterated his objections to the admission of the evidence of Kemp's contact with the husband, and argued that it was contrary to the court's prior ruling that no prior bad acts were to be used. Defense counsel, however, did not request further voir dire of the jury.
D. Kemp's Sentencing.
On June 7, 1993, the jury returned verdicts finding Kemp guilty of felony first-degree murder, armed robbery, and kidnaping. The matter proceeded to the sentencing hearing on July 9, 1993. The judge indicated that he had read the presentence report and the memoranda submitted by the parties. The court asked the prosecutor to argue with respect to Kemp's eligibility for the death penalty based on his conviction for felony murder under Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) and Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987).FN1 The prosecutor argued that the Enmund/ Tison requirements were met by the evidence that (a) Kemp bought the handgun that was used, (b) Kemp made admissions to Detective Salgado concerning Juarez's disappearance, (c) Kemp used Juarez's ATM card, (d) Juarez's body was found only partially clothed, (e) the husband testified that Kemp attempted to sexually assault him, and (f) Kemp admitted to two correctional officers that he killed Juarez. Defense counsel responded that there was a lack of physical evidence to connect Kemp to Juarez and that the prosecutor's case was compromised by statements made by co-defendant Logan, who was completely unbelievable.
FN1. The district court explained:
In Enmund, the Supreme Court held that a felony murder defendant is eligible for the death penalty only if he actually killed, attempted to kill, or intended to kill the victim. 458 U.S. at 797, 102 S.Ct. 3368. The Court subsequently expanded Enmund 's rule so that a felony murder defendant could be sentenced to death if the defendant was a major participant in the underlying felony and acted with reckless indifference to human life. Tison v. Arizona, 481 U.S. at 157–58, 107 S.Ct. 1676.
The trial judge found Kemp eligible for the death penalty under Enmund– Tison for his felony-murder conviction. After considering all the evidence and argument proffered by the parties, including Kemp's statement,FN2 the trial judge found that the prosecution had established three aggravating facts beyond a reasonable doubt: (1) Kemp had been previously convicted of a violent felony; (2) Kemp acted for the purpose of pecuniary gain; and (3) the murder was committed in an especially cruel manner. The judge further found that Kemp had failed to show any mitigating factors, and concluded that even if any of his assertions rose to the stature of a mitigating factor, it would not be sufficient to call for leniency. The trial court imposed a sentence of death “as prescribed by law for the conviction for murder in the first degree.”
FN2. When Kemp was asked whether he wanted to say something in the way of mitigation, he first indicated that he was pleased with the services of his attorney and then stated:
The prosecutor, in his alleged wisdom, has portrayed me as being a killer without remorse or regret. This is a wholly inaccurate assessment. I feel a deep and abiding sense of remorse at having permitted friendship to stay my hand in the face of wiser counsel; thus electing not to kill Jeff Logan at a time when both instinct and circumstances demanded his death.
You can rest assured that is a lapse of judgment I will never repeat and one which I will bend all my energies towards correcting in the not too distant future. Beyond that, I regret nothing.
The media has engaged in an orgy of speculation and innuendo concerning the events of mid-July '92. They printed and reported every word spewed from Logan's mouth as though they were engraved in stone and handed down from God. They printed every accusation Logan made, whether or not it had the slightest bearing on this case, and at no time made any effort at verification.
I was convicted in the press and on the televised news long before my case ever came to trial. Make no mistake, the day will come when I return to Tucson. And on that day I will remember all the kind things certain reporters had to say about me.
The so-called victim was not an American citizen and, therefore, was beneath my contempt. Wetbacks are hardly an endangered species in this state. If more of them wound up dead, the rest of them would soon learn to stay in Mexico, where they belong.
I don't show any mercy and I am certainly not here to plead for mercy. I spit on the law and all those who serve it; most especially you, Peasley. I have more respect for Salgado than I have for you.
E. State Post–Trial Proceedings.
On direct appeal, the Arizona Supreme Court affirmed Kemp's conviction and death penalty. State v. Kemp, 185 Ariz. 52, 912 P.2d 1281 (1996). Among the many issues Kemp raised were his challenges to the admission of his comments to the correctional officers. The Arizona Supreme Court rejected these, explaining:
The trial judge's finding that the statements were voluntary was not clearly and manifestly wrong. See State v. Scott, [177 Ariz. 131,] 865 P.2d 792, 797 (1993). The record supports the finding that the corrections officials were not attempting to overcome Kemp's will to induce him to inculpate himself. While Jackson and Compton testified that inmates generally had to respond to their inquiries, their questions concerned only the “day to day” circumstances of his incarceration. Kemp was not obligated to make these admissions. Cf. Oregon v. Bradshaw, 462 U.S. 1039, 1045 [103 S.Ct. 2830, 77 L.Ed.2d 405] (1983) (noting that inquiries between the accused and the State “relating to routine incidents of the custodial relationship[ ] will not generally ‘initiate’ a conversation in the sense in which that word was used in Edwards [ v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (holding that a request for a lawyer requires the police to cease questioning until the accused consults with his or her lawyer unless the defendant initiates further conversation) ].”).
Kemp argues that Miranda requires the exclusion of the statements because he had previously asserted his right to counsel. Edwards v. Arizona, 451 U.S. 477 [101 S.Ct. 1880, 68 L.Ed.2d 378] (1981). But Miranda only applies to custodial interrogation. Jackson and Compton did not attempt to elicit an incriminating response from Kemp. See Rhode Island v. Innis, 446 U.S. 291 [100 S.Ct. 1682, 64 L.Ed.2d 297] (1980) (holding that a comment made by one police officer to another, in the presence of the accused, expressing concern that handicapped children might come across a shotgun, is not a statement designed to elicit an incriminating response).
Compton only asked Kemp why he was in protective custody. He did not interrogate him. Routine inquiries by guards concerning the security status of prisoners are not statements designed to elicit an incriminating response. Id. Compton's question was reasonable and relevant to maintaining order in the prison and protecting Kemp. Similarly, Kemp's statements to Jackson were the product of ordinary, everyday interaction between guard and prisoner. Because Kemp was not interrogated by Compton and Jackson, the admission of his statements did not violate Miranda and his rights under art. 2, § 24 of the Arizona Constitution.
Kemp's assertion that his Sixth Amendment Massiah rights were violated fails for the same reason his Miranda claim fails: the guards did not seek to elicit incriminating evidence from him. Kuhlmann v. Wilson, 477 U.S. 436, 459 [106 S.Ct. 2616, 91 L.Ed.2d 364] (1986) (holding that “the defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks”). Kemp's admissions therefore were properly admitted.
912 P.2d at 1287.
The Arizona Supreme Court also addressed Kemp's arguments concerning the admission of his alleged assault of the husband. It first held that even if evidence of the alleged assault should have been excluded, its admission was harmless error because “Kemp's conviction is supported by overwhelming evidence of his guilt, including his own statements to the police and corrections officials.” Kemp, 912 P.2d at 1288. The court further ruled:
Kemp also argues that the prosecutor did not timely disclose that the subsequent homosexual assault would be used against him. Before trial, the court on two occasions ordered the State to disclose the bad acts it would use. See Rule 15.1(a)(6), Ariz. R.Crim. P. The State did disclose the victim of the subsequent homosexual assault as a possible witness approximately six months before trial. While it never provided Kemp with a list of his bad acts, Rule 15.1(a)(6) appears to apply to prior acts and not subsequent conduct. But even if Rule 15.1(a)(6) applies here, there simply was no prejudice.
Discovery rulings are affirmed unless there is an abuse of discretion. See State v. Krone, [182 Ariz. 319,] 897 P.2d 621, 624 (1995). Kemp argues that he was unable to obtain a fair and impartial jury and he was unable to develop any impeachment or motive evidence against the victim of the subsequent homosexual assault. We disagree.
First, the record is clear that Kemp's trial counsel was aware that Kemp's homosexuality potentially would be placed before the jury. Logan's statements to the police and media raised the issue. In addition, Logan's trial preceded Kemp's, and the witness Kemp sought to preclude testified regarding the same events at Logan's trial. Furthermore, Kemp successfully suppressed other evidence of his homosexuality, including sexually explicit photographs and a journal purportedly detailing his homosexual encounters. Although Kemp did not have a ruling regarding the bad act evidence prior to voir dire, he was clearly aware of the issue, was not surprised, and could have developed it at voir dire if he so wanted.
Second, Kemp's argument that he was unable to develop impeachment or motive evidence is without merit. The only connection the witness had to Kemp was the misfortune of being his kidnaping, robbery, and sexual assault victim. The witness was listed approximately six months before Kemp's trial and testified about the same events at Logan's trial. There was no abuse of discretion.
Id.
In February 1999, Kemp filed a petition for post-conviction relief with the trial court claiming ineffective assistance of counsel. The trial court denied the petition in May 1999, and in January 2000, the Arizona Supreme Court denied the petition for review.
F. Federal Habeas Corpus Proceedings.
In January 2000, Kemp filed a pro se petition for a writ of habeas corpus in the United States District Court for the District of Arizona. Proceedings were stayed to allow Kemp to seek relief in state court pursuant to Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and in August 2003, the Federal Public Defender was appointed as replacement counsel for Kemp.
In March 2005, the district court filed an order finding that six of Kemp's claims were procedurally defaulted, denying relief on another count, and finding that one asserted claim was not cognizable. In August 2006, Kemp moved for discovery and an evidentiary hearing concerning the circumstances surrounding his statements to the correctional officers. After briefing, the district court on September 17, 2007, denied the request for discovery and an evidentiary hearing. The district court agreed with the Arizona Supreme Court that Kemp's statements to the correctional officers were voluntary.FN3 It further determined that “[n]othing in the brief contacts between either of the correctional officers and Petitioner was reasonably likely to elicit an incriminating response; the interactions carry no indicia of an interrogation.” The district court also determined that Kemp's right to counsel was not violated by the communications with the correctional officers. In addition, the court held that “[b]ecause listening-in on conversations and reporting them is not unconstitutional,” there was no good cause for the requested discovery.
FN3. The district court commented:
First, there is no clear evidence that Jackson posed any question to Petitioner; Jackson does not recall who initiated the conversation and testified that Petitioner volunteered the statement about his housing status. Second, the fact that Petitioner was obligated to respond to either Compton and/or Jackson, in no way indicated that his incriminating responses were coerced. Petitioner could have truthfully and appropriately answered questions regarding why he was in a protective custody status without incriminating himself. Even if answering necessarily required a response regarding the crime with which he was charged, it did not require an admission about guilt. Nothing in the circumstances of Petitioner's statements indicates that his will was overborne. (emphasis in original).
The district court also rejected Kemp's Enmund– Tison claim. The court noted that the state court's factual findings including the jury's special verdict that Kemp “intended to kill and did kill the victim” are presumed correct. The district court found that the totality of the evidence, including Kemp's statements to the correctional officers, was more than sufficient to allow a rational factfinder to “find that Petitioner killed, intended to kill or was a major participant in the underlying felony and acted with reckless indifference to human life.”
On September 11, 2008, the district court issued a Memorandum of Decision and Order denying the remaining claims in Kemp's habeas petition. The court rejected Kemp's claim to voir dire regarding homosexuality for several reasons. First, it found that “the record plainly shows that prior to voir dire the defense was on notice that the sexual assault victim was a potential witness whose testimony would address the subsequent bad act.” Second, it held that “[e]ven assuming the existence of Supreme Court precedent applying the same voir dire requirements with respect to issues of race and sexuality, such voir dire was not required in Petitioner's case because the sentencing was not carried out by the jury but by the trial judge.” Third, the court determined that Kemp's “homosexuality was not ‘inextricably bound up with’ his case to the extent that specific inquiry into the issue of homosexuality was required,” and that “the issue of homosexuality was not bound up with the defense; nor did the trial involve allegations of homosexual prejudice.” Finally, the trial court concluded, citing Mu'Min v. Virginia, 500 U.S. 415, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991), that Kemp “has not shown that the lack of voir dire on the issue of homosexuality rendered his trial ‘fundamentally unfair.’ ”
The district court on September 29, 2008, certified three issues for appeal:
Whether Claim 2 of the Amended Petition—alleging that Petitioner's right to a fair and unbiased jury was violated by the trial court's refusal to allow voir dire on the issue of homosexual bias—is meritorious.
Whether Claim 3 of the Amended Petition—alleging that the admission of Petitioner's statements to two correctional officers was unconstitutional—is meritorious.
Whether Claim 12—alleging that there was insufficient evidence to support a finding of death eligibility if the statements of the correctional officers had been excluded—is meritorious.
Kemp filed a timely notice of appeal on October 27, 2008.
II
A district court's denial of a § 2254 habeas petition is reviewed de novo. Waldron–Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir.2009); Pham v. Terhune, 400 F.3d 740, 741 (9th Cir.2005) (per curiam). The district court's findings of fact are reviewed for clear error, Bonin v. Calderon, 59 F.3d 815, 823 (9th Cir.1995), legal conclusions are reviewed de novo, Jackson v. Brown, 513 F.3d 1057, 1069 (9th Cir.2008), and we may affirm on any ground supported by the record. Lambert v. Blodgett, 393 F.3d 943, 965 (9th Cir.2004).
Because Kemp's federal habeas petition was filed after the effective date of AEDPA, relief can only be granted if the state court decision either:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). See Williams v. Taylor, 529 U.S. 420, 429, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000).
III
Kemp raises three arguments on appeal: (1) his rights to be free from compelled self-incrimination under the Fifth Amendment and to counsel under the Sixth Amendment were violated when the correctional officers stimulated conversations with him and elicited incriminating statements that were admitted at trial; (2) without his statements to the correctional officers there is insufficient evidence to support the imposition of a capital sentence under Enmund, 458 U.S. 782, 102 S.Ct. 3368 and Tison, 481 U.S. 137, 107 S.Ct. 1676; and (3) he was denied due process when the prosecutor was dilatory in giving notice that he would introduce evidence that Kemp committed a homosexual assault subsequent to the murder and Kemp was denied the opportunity to voir dire the jury on homosexual bias.
A. Admission of Kemp's Incriminating Statements Did Not Violate His Rights Under the Fifth and Sixth Amendments.
Kemp advances two lines of argument to support his claim that his incriminating statements should not have been admitted. First, he argues that the Arizona Supreme Court unreasonably applied Edwards, 451 U.S. 477, 101 S.Ct. 1880, to his case. Second, he argues that because the record is “devoid of all facts necessary to determine what the officers intended” the district court should have granted his request for further discovery and an evidentiary hearing. We determine that the Arizona Supreme Court did not render a decision that was contrary to or an unreasonable application of the controlling Supreme Court cases and that the district court did not err in denying Kemp further discovery and an evidentiary hearing.
1. The Arizona Supreme Court did not unreasonably apply clearly established Federal law.
Kemp argues, citing Edwards, 451 U.S. at 484–85, 101 S.Ct. 1880, that the Supreme Court set forth a clear rule that once a defendant in custody has expressed his desire to deal with the police only through counsel, the officers may not ask any further questions. He contends that only the accused may initiate a conversation in order for there to be a valid waiver of the accused's rights. Kemp claims that the court's reliance on Bradshaw, 462 U.S. at 1045, 103 S.Ct. 2830, was faulty because in that case only a plurality of the Supreme Court stated, in dicta, that police may lawfully initiate conversations after an accused had invoked his Fifth Amendment right to remain silent. Kemp further asserts that cases relied on by the Arizona Supreme Court, such as Innis, 446 U.S. 291, 100 S.Ct. 1682, are distinguishable because they involve situations where the accused initiated communications.
We do not agree with Kemp's reading of the controlling Supreme Court opinions. In Innis, the Supreme Court reiterated that the term “interrogation” under Miranda “refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response.” Id. at 301, 100 S.Ct. 1682 (emphasis added). The Court further noted that “[i]nterrogation ... must reflect a measure of compulsion above and beyond that inherent in custody itself.” Id. at 300, 100 S.Ct. 1682. It also noted that “since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.” Id. at 301–02, 100 S.Ct. 1682 (emphasis in original).
The Arizona Supreme Court held that Miranda did not apply because Compton only asked Kemp why he was in protective custody and did not interrogate Kemp. Kemp, 912 P.2d at 1286–87. Such an inquiry qualifies as a question that is “normally attendant to ... custody,” and thus, not covered by Miranda. The Arizona Supreme Court's application of Innis was not “an unreasonable application of clearly established Federal law” under § 2254(d)(1).
The reasonableness of the Arizona Supreme Court's perspective is supported by the plurality opinion in Bradshaw. Then–Justice Rehnquist writing for four Justices commented:
While we doubt that it would be desirable to build a superstructure of legal refinements around the word “initiate” in this context, there are undoubtedly situations where a bare inquiry by either a defendant or by a police officer should not be held to “initiate” any conversation or dialogue. There are some inquiries, such as a request for a drink of water or a request to use a telephone that are so routine that they cannot be fairly said to represent a desire on the part of an accused to open up a more generalized discussion relating directly or indirectly to the investigation. Such inquiries or statements, by either an accused or a police officer, relating to routine incidents of the custodial relationship, will not generally “initiate” a conversation in the sense in which that word was used in Edwards.
462 U.S. at 1045, 103 S.Ct. 2830. Admittedly, this position was adopted by only a plurality of the Court. However, the fact that four Supreme Court Justices believe that “a bare inquiry by ... a police officer should not be held to ‘initiate’ any conversation” affirms that a similar perspective by the Arizona Supreme Court is not unreasonable.FN4
FN4. See Murdoch v. Castro, 609 F.3d 983, 991–93 (9th Cir.2010) (en banc) (“[W]hen there is a principled reason for the state court to distinguish between the case before it and Supreme Court precedent, the state court's decision will not be an unreasonable application of clearly established Supreme Court law.”).
Because the Arizona Supreme Court's holding that the questions by the correctional officers did not constitute “interrogations” under Innis was not an unreasonable application of that precedent, Kemp's claim under Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), must also fail, since nothing in the record or Supreme Court case law indicates that the specific type of custody-related inquiry at issue here was “designed deliberately to elicit incriminating remarks,” Kuhlmann v. Wilson, 477 U.S. 436, 459, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986). Accordingly, the Arizona Supreme Court's reasonable application of “clearly established Federal law” with regard to Kemp's Fifth Amendment claim, is also a reasonable application of the law with regards to his Sixth Amendment claim.FN5
FN5. Our conclusion is also supported by the Supreme Court's opinion in Montejo v. Louisiana, ––– U.S. ––––, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009). In Montejo, the Supreme Court overruled the rule announced in Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), “forbidding police to initiate interrogation of a criminal defendant once he has requested counsel at an arraignment of similar proceeding.” Id. at 2082. Instead, the Court held that the prophylaxis afforded by Miranda and Edwards were sufficient. Id. at 2090. The Court commented that because the right to be free from compelled self-incrimination and the right to counsel are “waived using the same procedure, ... doctrines ensuring voluntariness of the Fifth Amendment waiver simultaneously ensure the voluntariness of the Sixth Amendment waiver.” Id.
2. The Arizona Supreme Court's factual determinations are not unreasonable.
Kemp does not directly challenge the state courts' determination that the officers did not attempt to elicit incriminating responses and did not interrogate him. Instead, Kemp contends that the district court should have granted his request for further discovery.FN6 Kemp sought discovery in order to prove that contrary to the factual determination of the state courts, the correctional officers “engaged him in conversations in order to acquire incriminating information about his case.” Kemp claims that the information sought would show that officers were trained to intentionally eavesdrop on and memorialize conversations with inmates, and to provide inmate statements to the Pima County Attorney.
FN6. Kemp sought to depose Officers Compton and Jackson, and requested subpoenas for records of the Pima County Jail, Pima County Sheriff's Office, and the Pima County Attorney's Criminal Division for the period 1990 through 1993.
In support of his discovery request, Kemp asserted that in a Pima County capital murder trial held prior to his trial, a correctional officer testified that: (1) he overheard a conversation between the defendant and another jail inmate; (2) there was paper and a writing instrument available to him to memorialize the conversation; and (3) the highly incriminating statements were passed on to the Pima County Attorney's office for use in the prosecution. FN7 See State v. Eastlack, 180 Ariz. 243, 883 P.2d 999, 1008 (1994). He further claims that in another Pima County capital case, State v. Moody, 208 Ariz. 424, 94 P.3d 1119, 1142 (2004), a Pima County correctional officer was ordered to keep an eye on an inmate and subsequently testified as to the inmate's incriminating statements. Kemp argues that “evidence that correctional officers are trained to question inmates about their cases and memorialize the inmates' responses to such questioning would seriously undermine the state courts' determinations that Compton and Jackson's contact with Kemp did not constitute interrogation about his case.”
FN7. Kemp notes that the prosecutor in that case was later disciplined for unethical behavior in a homicide prosecution, see In re Zawada, 208 Ariz. 232, 92 P.3d 862 (2004).
Kemp further notes that the prosecutor in his case, Peasley, was subsequently disbarred for suborning perjury from a police detective in another capital prosecution in Pima County. See In re Peasley, 208 Ariz. 27, 90 P.3d 764, 778 (2004). Kemp argues that given Peasley's track record, the district court should have allowed him to explore the relationship between Peasley and the two correctional officers.
Kemp argues that he demonstrated good cause for discovery as required by Rule 6(a) of the Rules Governing Habeas Proceedings in the District Courts. He claims he has made the requisite showings of credible allegations of a constitutional violation and that the discovery would enable him to investigate and prove his claim. He asserts that the Supreme Court's opinion in Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), acknowledges the relevance of law enforcement training with respect to interrogations. Here, Kemp claims that discovery is necessary because of the possible subtle means of interrogation employed in the Pima County Jail. Moreover, an evidentiary hearing is allegedly necessary because the district court had insufficient evidence to appreciate why the evidence produced at the state suppression hearing was inadequate.
Kemp admits that he did not develop the factual basis for discovery in the state courts, but argues that this was not the result of a lack of diligence. He asserts that his trial counsel “was not reasonably on notice, based on the suppression hearing testimony, that evidence might have existed in the form of the officers' training or the existence of printed or video training materials that would have undermined the testimony given by Officers Compton and Jackson.” Kemp contends that the correctional officer's testimony in Eastlack, which was given less than two years before his trial, “could not have been reasonably known to Kemp's trial counsel because that testimony was not mentioned in the Arizona Supreme Court's decision in that case.” Kemp claims that it was “mere fortuity” that his present counsel learned of the officer's testimony in Eastlack, and argues that where “a capital habeas petitioner learns by sheer happenstance of the existence of facts that might have supported a claim in state court, he cannot be determined to have lacked diligence in developing the supporting facts for his claim.”
Based on the foregoing, Kemp asserts that he “met the burden of establishing ‘good cause’ for the discovery he sought, and the district court abused its discretion in failing to allow discovery.”
b. The district court reasonably denied Kemp's discovery request and request for an evidentiary hearing.
We first consider whether AEDPA bars Kemp from having an evidentiary hearing on his claim that correctional officers deliberately elicited incriminating statements, in violation of his Sixth Amendment rights. If AEDPA imposed such a bar in this case, the petitioner could not show good cause, and the district court would not have abused its discretion by denying Kemp's discovery request. FN8
FN8. Habeas Corpus Rule 6(a) allows parties to “invoke the processes of discovery available under the Federal Rules of Civil Procedure if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise.”
Section 2254(e)(1) of AEDPA bars most evidentiary hearings if the applicant “failed” to develop the factual basis for the claim in state court. In this context, “failed” “connotes some omission, fault, or negligence on the part of the person who has failed to do something.” Williams, 529 U.S. at 431–32, 120 S.Ct. 1479. If the petitioner is not at fault (as defined for purposes of § 2254(e)(1)), we evaluate the propriety of an evidentiary hearing under the factors prescribed by Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), overruled on other grounds, Keeney v. Tamayo–Reyes, 504 U.S. 1, 5, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992). Earp v. Ornoski, 431 F.3d 1158, 1166 (9th Cir.2005).
If the court determines that the applicant did fail to develop the factual basis for a claim in state court, the district court can hold an evidentiary hearing only if the petitioner meets two demanding requirements: First, the claim must rely on a rule of constitutional law newly announced by the Supreme Court and available to habeas petitioners, 28 U.S.C. § 2254(e)(2)(A)(I), or must be based on facts that “could not have been previously discovered through the exercise of due diligence,” § 2254(e)(2)(A)(ii). Second, even if a petitioner raises a new claim or one based on a new factual predicate, a hearing is required only if “the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact-finder would have found applicant guilty of the underlying offense.” § 2254(e)(2)(B).
Our first inquiry, then, is whether Kemp “failed to develop the factual basis of [his] claim in State court proceedings.” § 2254(e)(2). Kemp admits that he did not develop his claims in the state courts but claims that his course of action was reasonable, and hence not a “failure” within the meaning of § 2254(e)(2), because he did not have necessary information while his case was still in state court.FN9 This argument fails, because the information that, according to Kemp, provided a new basis for his claim that the officers deliberately elicited incriminating information, does not actually provide such a basis. He has only the officer's testimony in Eastlack, 883 P.2d 999, allegations concerning the proceedings in Moody, 94 P.3d 1119, and the attorney discipline actions against prosecutors Peasley and Zawada.
FN9. Arizona, in addition to contesting Kemp's request for discovery on its merits, argues that Kemp should have developed his claim in collateral proceedings in state court, but failed to do so. Arizona also asserts that Kemp's assertion that he was entitled to discovery is not properly before the court because it was not included as an issue in the Certificate of Appealability. We determine that the denial of discovery is encompassed within the grant of a certificate on the question of the admission of Kemp's statements to the two correctional officers.
None of these support the assertion that there was a policy in the Pima County Jail to subtly interrogate the inmates. The officer in Eastlack only testified that (a) Eastlack was speaking to another inmate in a loud voice and refused to lower his voice, (b) he recorded the conversation because it struck him as interesting that Eastlack was talking about his case, and (c) note paper was available for whatever need there might be, not just for recording incriminating statements. Eastlack, 883 P.2d at 1008. Similarly, in Moody, the officer was sitting approximately fifteen feet from Moody, who knew he was there and made no effort to lower his voice or speak softly. 94 P.3d at 1143. The Arizona Supreme Court held that there was “no surreptitious eavesdropping, recording, or reporting of communications” and that the trial court could “reasonably have concluded that Moody waived the confidentiality of the communication with his attorney by making no effort to safeguard the content of his conversation.” Id. at 1144. Thus, neither case suggests that there was any policy of deliberately eliciting incriminating information from inmates.
Furthermore, Kemp's assertion of a policy of deliberately eliciting incriminating information is not advanced by the reference to the attorney discipline actions against Zawada and Peasley. Peasley's unethical behavior concerned an officer stating under oath that he had not known that a person was a suspect, when he had. See Peasley, 90 P.3d at 769. Zawada was disciplined for knowingly implying unethical conduct by expert witnesses without supporting evidence. See Zawada, 92 P.3d at 867. In neither case is there anything that suggests the existence of a policy of interrogating inmates.FN10
FN10. Moreover, the officers' trial testimony was to the contrary. Jackson testified that he did not recall who initiated his conversation with Kemp, he did not talk to his supervisor about the conversation, and did not memorialize the conversation for some time. Compton testified that he needed to know why Kemp was in protective custody and was not trying to ask Kemp about his case. Both Jackson and Compton testified under oath in the state court proceedings and there is nothing, other than Kemp's unsupported allegations, to suggest that either testified in a misleading or dishonest manner.
As the above discussion shows, none of the “evidence” that Kemp has acquired since his conviction even remotely supports his assertion of a policy of deliberate subtle elicitation of information by Pima County correctional officers. The only salient fact Kemp has to buttress his claim is that two correctional officers spoke with him and both eventually made a report of that conversation, yet that information was available to him before his original criminal trial. He thus possessed all relevant information that would support his claim well before the conclusion of his state proceedings. Accordingly, Kemp has “failed” to develop the bases of his claim and it is barred under § 2254(e)(1) unless he can satisfy the strictures of § 2254(e)(2)(A)-(B). FN11 Kemp, however, cannot meet this demanding standard. His claim does not rely on a new rule of constitutional law available to habeas petitioners. § 2254(e)(2)(A)(i). Moreover, because Kemp has not shown that his failure to develop the factual basis for his claim in state court was due to the discovery of new information not available until after trial, Kemp has also failed to show a “a factual predicate that could not have been previously discovered through the exercise of due diligence,” § 2254(e)(2)(A)(ii).
FN11. Even if Kemp had not failed to develop the bases of his claim, he still would not be entitled to an evidentiary hearing because he cannot satisfy Townsend 's requirement of “alleg[ing] specific facts which, if true, would entitle him to relief.” Earp, 431 F.3d at 1167 & n. 4 (emphasis added). Kemp's vague assertions of a policy of deliberate elicitation cannot, without greater detail or a shred of substantial supporting evidence, amount to a colorable claim. He therefore would not be entitled to an evidentiary hearing even if he overcame the “failure” bar of § 2254(e)(2).
Because Kemp is not entitled to an evidentiary hearing, the district court did not err in denying his request for discovery, as well as his request for a hearing. First, because the district court was not authorized to hold an evidentiary hearing on Kemp's deliberate elicitation claim, obtaining discovery on that claim would have been futile. Moreover, Kemp's claim of a jail-wide policy of eliciting incriminating statements has many of the indicia of an improper “fishing expedition,” and the desire to engage in such an expedition cannot supply “good cause” sufficient to justify discovery. See Rich v. Calderon, 187 F.3d 1064, 1067–68 (9th Cir.1999) (noting that in habeas proceedings discovery is only available “in the discretion of the court and for good cause shown” and is not “meant to be a fishing expedition for habeas petitioners to explore their case in search of its existence.”) (internal quotation marks omitted). Accordingly, the district court's discovery denial also was not an abuse of discretion.
B. Because Kemp's Incriminating Statements Were Admissible, There is Sufficient Evidence to Support the Imposition of the Death Penalty Under Enmund and Tison.
Kemp's argument that there was insufficient evidence to support the imposition of the death penalty was based on his claim that his incriminating statements were not admissible. Our determination that his statements were admissible disposes of his arguments under Enmund and Tison. We need not consider whether Kemp's assertion would have been persuasive if the statements were inadmissible, but we do conclude that with those statements there is no constitutional barrier to affirming his sentence.
In Enmund, the Supreme Court held that the death penalty could not be imposed on a defendant who “aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed.” 458 U.S. at 797, 102 S.Ct. 3368. In Tison, the Supreme Court stated that “the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result.” 481 U.S. at 157–58, 107 S.Ct. 1676.
Here, the evidence, including Kemp's incriminating statements, is more than sufficient to support the state courts' determination that Kemp possessed the requisite culpable mental state to allow the imposition of a capital sentence.
C. Kemp Was Not Denied Due Process By the Trial Court's Failure to Allow Him to Re- voir dire the Jury on Possible Homosexual Bias.
Kemp asserts that the Due Process Clause of the Fourteenth Amendment guarantees a defendant not only an impartial jury, but also an adequate voir dire in order to identify unqualified jurors. See Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992) (“part of the guarantee of a defendant's right to an impartial jury is an adequate voir dire to identify unqualified jurors”). Kemp recognizes that to be constitutionally compelled, it is not enough that voir dire questions might have been helpful, rather the failure to ask the questions “must render the defendant's trial fundamentally unfair.” Mu'Min, 500 U.S. at 425–26, 111 S.Ct. 1899.
Kemp asserts that homosexual bias is similar to racial bias. He notes that in Ham v. South Carolina, 409 U.S. 524, 525–27, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973), the Supreme Court held that voir dire on racial bias was constitutionally compelled where an African American civil rights advocate's defense to criminal drug charges was that he was framed due to his prominence in the community.
Kemp claims his trial was fundamentally unfair because the trial court refused to allow him to re- voir dire the jury after the court denied his motions in limine that would have barred introduction of the subsequent homosexual assault of the husband. Kemp argues that the prosecutor was dilatory in giving the required notice that he intended to introduce evidence of Kemp's homosexual assault of the husband, and was rewarded for his gamesmanship when the trial court allowed the evidence to be admitted. Kemp further argues that his homosexuality was bound up with the conduct of the trial. The prosecutor argued to the jury that Kemp's homosexuality and alleged desire to engage in homosexual activities served as a motive for the kidnaping and murder of Juarez. The prosecutor introduced the husband's testimony to prove a homosexual assault, and in his closing argument, told the jury that Kemp's homosexual drive was behind the kidnap and murder of Juarez as well as his attack on the husband.
Kemp contends that it would have been “fundamentally unfair to have required Kemp's counsel needlessly to interject his client's homosexual orientation into the voir dire, with the potential for prejudice it held, were the trial court ultimately to have ruled the homosexual assault on [the husband] inadmissible.”
Kemp has the burden of showing that the Arizona Supreme Court's decision upholding the trial court's decision not to re- voir dire the jury was contrary to or an unreasonable application of clearly established Supreme Court precedent. He cannot make this showing. Even in the cases cited by Kemp, the Supreme Court emphasizes that voir dire “is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion.” Morgan, 504 U.S. at 729, 112 S.Ct. 2222. See also Mu'Min, 500 U.S. at 427, 111 S.Ct. 1899 (“our own cases have stressed the wide discretion granted to the trial court in conducting voir dire in the area of pretrial publicity and in other areas of inquiry that might tend to show juror bias”). When a state court is asked to apply a general standard, such as the Strickland standard for ineffective assistance or the “fundamental unfairness” standard at issue here, state courts get even greater “leeway” than is standard under our already-deferential AEDPA framework. Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1420, 173 L.Ed.2d 251 (2009); accord Cullen v. Pinholster, ––– U.S. ––––, 131 S.Ct. 1388, 1403, 179 L.Ed.2d 557 (2011); and Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011).
Kemp has not made either the legal or factual showing necessary to satisfy § 2254(d). Kemp's attempt to equate bias against homosexuals with racial prejudice is not persuasive. In Ham, the Supreme Court held that an inquiry as to racial prejudice was constitutionally compelled in that case, but that “[g]iven the traditionally broad discretion accorded to the trial judge in conducting voir dire,” Ham's constitutional rights were not violated when the judge refused to question the jury about prejudice against beards. 409 U.S. at 528, 93 S.Ct. 848. In Mu'Min, the Supreme Court commented
We enjoy more latitude in setting standards for voir dire in federal courts under our supervisory power than we have in interpreting the provisions of the Fourteenth Amendment with respect to voir dire in state courts. But two parallel themes emerge from both sets of cases: First, the possibility of racial prejudice against a black defendant charged with a violent crime against a white person is sufficiently real that the Fourteenth Amendment requires that inquiry be made into racial prejudice; second, the trial court retains great latitude in deciding what questions should be asked on voir dire.
500 U.S. at 424, 111 S.Ct. 1899. In Ristaino v. Ross, 424 U.S. 589, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976), the Supreme Court held that it was not always necessary to voir dire a jury on racial prejudice, even when the victim was white and the defendants were black. Id. at 597, 96 S.Ct. 1017.
Kemp has not offered any case law holding that homophobia should be elevated to the same level as racial prejudice. In light of the Supreme Court's affirmance of the discretion granted the trial court and its suggestion that voir dire on racial prejudice is not always constitutionally compelled, even when the victim and the defendant are of different races, Kemp has failed to show that the Arizona Supreme Court contravened or unreasonably applied “clearly established Federal law” in rejecting his challenge to the trial court's failure to re- voir dire the jury on possible homosexual bias.
The record also does not support Kemp's claim that he was denied due process. First, a review of the record shows that trial counsel never asked to re- voir dire the jury. After the selection of the jury, during argument on outstanding motions, counsel stated “if we are going to allow this—this onslaught of homosexual activity I want to re- voir dire the jury.” However, when the trial court ruled that it would exclude some evidence of homosexual activity, but would allow in other evidence, Kemp's counsel did not ask to re- voir dire the jury.
Second, the record supports the determinations by the Arizona Supreme Court and the district court that Kemp's counsel was aware that Kemp's homosexuality potentially would be placed before the jury. See Kemp, 912 P.2d at 1288. Juarez was found in the desert shot in the head twice and wearing only his socks. Logan's statements to the police and the media raised Kemp's homosexual proclivity as an explanation for Juarez's attire. Moreover, the prosecutor indicated well before trial that he was inclined to call the husband and that he would seek to introduce other evidence of Kemp's homosexuality. Even assuming that the trial judge should have ruled on Kemp's in limine motion before picking a jury, Kemp's counsel cannot reasonably claim that he was not aware that evidence concerning Kemp's homosexuality would be admitted at trial.
Third, despite Kemp's claim that his alleged homosexuality was central to the case, the critical evidence of the murder did not concern homosexuality. The critical evidence consisted of the videotape of Kemp using Juarez's ATM card, his admission to Detective Salgado, and his incriminating evidence to the correctional officers. None of this evidence had anything to do with his homosexuality.FN12
FN12. Kemp's argument that his alleged homosexuality was central to the case undercuts his argument that he was prejudiced by the trial court's failure to re- voir dire the jury. If homosexuality was bound up in the case, then Kemp presumably knew this from the time of the indictment and the failure to include any question regarding homosexuality in the initially requested voir dire questions would appear to have been a strategic choice.
Fourth, as noted by the district court, the jury did not participate in the sentencing proceeding. The fact that the sentence was determined by the judge, rather than the jury, reduces the impact of any latent bias by any member of the jury. Accordingly, the Arizona Supreme Court's decision was not predicated on an unreasonable determination of the facts. See § 2254(d)(2).
In sum, Kemp has failed to show that the trial court's alleged failure to allow him to re- voir dire the jury as to possible bias against homosexuals was an unreasonable application of clearly established Supreme Court law or an unreasonable determination of the facts. He is not entitled to habeas relief on this claim.
IV
Kemp has not carried his burden of showing that he is entitled to relief on his appeal from the district court's denial of his habeas petition. Because his petition was filed after the effective date of the AEDPA, relief can only be granted if the state court unreasonably applied clearly established federal law or unreasonably determined the facts. 28 U.S.C.A. § 2254(d). Kemp has failed to show that the Arizona Supreme Court acted unreasonably under either of these criteria in rejecting his arguments that admission of his incriminating statements to correctional officers violated his rights under Miranda and Massiah. He has not shown that the district court abused its discretion in denying his request for discovery and an evidentiary hearing because he did not establish “specific facts which, if true, would entitle him to relief.” Earp, 431 F.3d at 1167 n. 4. We do not reach Kemp's claim that if his incriminating statements are excluded there is insufficient evidence to support the imposition of the death penalty under Enmund/ Tison, because we hold that the statements are admissible and that the evidence presented, including the statements, provides a sufficient basis for the imposition of a capital sentence. Finally, Kemp has not shown that the trial court's alleged failure to re- voir dire the jury as to homosexual bias was contrary to, or an unreasonable application of, clearly established Supreme Court precedent. See Mu'Min, 500 U.S. at 425–26, 111 S.Ct. 1899. Accordingly the district court's denial of Kemp's habeas petition is AFFIRMED.
2. John George Brewer White 27 M 03-Mar-1993 Lethal injection Rite Brier
3. James Dean Clark White 35 M 14-Apr-1993 Lethal injection Charles Thumm, Mildred Thumm, Gerald McFerron, and George Martin
4. Jimmie Wayne Jeffers White 49 M 13-Sep-1995 Lethal injection Penelope Cheney
5. Darren Lee Bolton White 29 M 19-Jun-1996 Lethal injection Zosha Lee Picket
6. Luis Morine Mata Latino 45 M 22-Aug-1996 Lethal injection Debra Lee Lopez
7. Randy Greenawalt White 47 M 23-Jan-1997 Lethal injection John Lyons, Donnelda Lyons, Christopher Lyons, and Theresa Tyson
8. William Lyle Woratzeck White 51 M 25-Jun-1997 Lethal injection Linda Leslie
9. Jose Jesus Ceja Latino 42 M 21-Jan-1998 Lethal injection Linda Leon and Randy Leon
10. Jose Roberto Villafuerte Latino 45 M 22-Apr-1998 Lethal injection Amelia Shoville
11. Arthur Martin Ross White 43 M 29-Apr-1998 Lethal injection James Ruble
12. Douglas Edward Gretzler White 47 M 03-Jun-1998 Lethal injection Michael Sandsberg and Patricia Sandsberg
13. Jesse James Gillies White 38 M 13-Jan-1999 Lethal injection Suzanne Rossetti
14. Darick Leonard Gerlaugh Native American 38 M 03-Feb-1999 Lethal injection Scott Schwartz
15. Karl-Heinz LaGrand White 35 M 24-Feb-1999 Lethal injection Kenneth Hartsock
16. Walter Bernhard LaGrand White 37 M 03-Mar-1999 Lethal gas
17. Robert Wayne Vickers White 41 M 05-May-1999 Lethal injection Wilmar Holsinger
18. Michael Kent Poland White 59 M 16-Jun-1999 Lethal injection Cecil Newkirk and Russell Dempsey
19. Ignacio Alberto Ortiz Latino 57 M 27-Oct-1999 Lethal injection Manuelita McCormack
20. Anthony Lee Chaney White 45 M 16-Feb-2000 Lethal injection John B. Jamison
21. Patrick Gene Poland White 50 M 15-Mar-2000 Lethal injection Cecil Newkirk and Russell Dempsey
22. Donald Jay Miller White 36 M 08-Nov-2000 Lethal injection Jennifer Geuder
23. Robert Charles Comer White 50 M 22-May-2007 Lethal injection Larry Pritchard and Tracy Andrews
24. Jeffrey Timothy Landrigan Native American 50 M 26-Oct-2010 Lethal injection Chester Dean Dyer
25. Eric John King African American 47 M 29-Mar-2011 Lethal injection Ron Barman and Richard Butts
26. Donald Beaty White 25-May-2011 Lethal Injection Christy Ann Fornoff
27. Richard Lynn Bible 30-June-2011 Lethal Injection Jennifer Wilson
28. Thomas Paul West 19-July-2011 Lethal Injection Don Bortle
29. Robert Henry Moorman 29-Feb-2012 Lethal injection Roberta Maude Moorman
30. Robert Charles Towery 08-Mar-2012 Lethal injection Mark Jones
31. Thomas Arnold Kemp 25-Apr-2012 Lethal injection Hector Juarez
A. Trial Issues
1. Kemp's Admissions to Jail Officials
1. The Enmund Finding
A. Kemp's Criminal Activities.
a. Kemp's contentions.