                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

               JOHNATHAN ANDREW DOODY, Appellant.

                             No. 1 CA-CR 14-0218
                               FILED 11-10-2015


           Appeal from the Superior Court in Maricopa County
                          No. CR 1992-001232
                 The Honorable Joseph Kreamer, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

The Hopkins Law Office, PC, Tucson
By Cedric Martin Hopkins
Counsel for Appellant
                            STATE v. DOODY
                           Decision of the Court



                      MEMORANDUM DECISION

Acting Presiding Judge Jon W. Thompson delivered the decision of the
Court, in which Judge Lawrence F. Winthrop and Judge Peter B. Swann
joined.


T H O M P S O N, Judge:

¶1             Johnathan Andrew Doody murdered nine people inside a
Buddhist temple in 1991. A jury found Doody guilty of nine counts of first
degree murder, nine counts of armed robbery and one count each of first
degree burglary and conspiracy to commit armed robbery and/or first
degree burglary. The trial court sentenced Doody to nine consecutive terms
of life imprisonment with a possibility of parole after twenty-five years for
the murder counts and a consecutive, aggregate term of twelve years’
imprisonment for the remaining counts.1

¶2            Doody does not challenge the sufficiency of the evidence to
support his convictions. He contends, however, that the trial court erred
when it denied Doody’s motion in limine to admit evidence of a subsequent
murder and when it failed to consider mitigating circumstances for
sentencing purposes. For the reasons that follow, we affirm Doody’s
convictions and sentences. We have jurisdiction pursuant to Arizona
Constitution, Article 6, Section 9, and Arizona Revised Statutes (A.R.S.)
sections 12-120.21(A) (2003), 13-4031 (2010) and 13-4033 (2010).

I.     Doody’s Motion in Limine

¶3           Doody first argues the trial court erred when it denied his
motion in limine to admit evidence of the details of a tenth murder that
occurred approximately nine weeks after the “temple murders.” We



1       This was Doody’s third trial in this matter. The United States Court
of Appeals for the Ninth Circuit reversed Doody’s original 1993 convictions
after it found interrogators did not adequately inform Doody of his rights
under Miranda v. Arizona, 384 U.S. 436 (1966), and because the methods of
interrogation rendered his confession to the murders involuntary. Doody v.
Ryan, 649 F.3d 986, 1023 (9th Cir. 2011). A second trial in 2013 resulted in a
mistrial.

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                           Decision of the Court

review a trial court’s evidentiary rulings for abuse of discretion. State v.
Amaya-Ruiz, 166 Ariz. 152, 167, 800 P.2d 1260, 1275 (1990).

      A.     Background

¶4              We first clarify the record to put the issue and Doody’s
arguments in context. A second person, “Garcia,” participated in the
temple murders. In exchange for the state’s agreement not to seek the death
penalty, Garcia pled guilty to nine counts of first degree murder and agreed
to testify truthfully in any proceedings against Doody. The court sentenced
Garcia to nine consecutive terms of life imprisonment with a possibility of
parole after twenty-five years. Garcia ultimately testified at trial that
Doody shot each of the murder victims individually with a rifle as they lay
on the floor and Garcia fired into the group of victims four times with a
shotgun.

¶5             Doody filed a pretrial motion in limine to admit evidence of
the details of a tenth murder Garcia participated in as an accomplice. Nine
weeks after the temple murders, the sixteen-year-old Garcia and his
fourteen-year-old girlfriend ran away together. They encountered the tenth
victim at a campsite and borrowed matches from her. Garcia planned to
rob the tenth victim shortly thereafter and repeatedly told his girlfriend
there should be “no witnesses” once they did so. Garcia pressured his
girlfriend to kill the tenth victim, and told her, “If you love me, you'll do
this.” The girlfriend shot the tenth victim twice in the back with a nine
millimeter handgun, after which they took the victim’s money and ATM
card. The girlfriend admitted she shot the victim but claimed Garcia
controlled everything, that it was all his plan and that he manipulated her.
Garcia revealed the tenth murder to investigators as part of his plea
agreement in the instant case. Garcia pled guilty to that murder as well and
received a tenth, consecutive sentence of life imprisonment with a
possibility of parole after twenty-five years.

¶6             Doody alleged in his motion in limine that there were
similarities between the temple murders and the tenth murder. Relying on
Arizona Rule of Evidence 404(b) (Rule 404(b)), Doody asserted these
alleged similarities were relevant to Garcia’s motive and intent and would
impeach Garcia’s trial testimony by showing Garcia’s “common scheme or
plan” to minimize his involvement in any murder he participated in,
attribute the actual murder to another person and portray himself as simply
a follower. At the hearing on the motion, Doody argued further that the
evidence was relevant to show Garcia was a “serial killer” who “cuts deals
with the state, implicates others in exchange for favorable outcome for


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                            STATE v. DOODY
                           Decision of the Court

himself, . . . minimizes his involvement in the crimes as he did in both the
[tenth murder] and the temple murders and he manipulates people.” He
also argued the evidence showed Garcia has a “character trait for, basically,
implicating other people; cutting deals; minimizing his involvement.”
Finally, Doody argued the evidence that Garcia used the phrase “no
witnesses” in the tenth murder was most important because he would
testify it was Doody who used that phrase during the temple murders.

¶7             The trial court denied the motion in limine in part and granted
it in part. The court held it would allow some evidence of the tenth murder.
The court held Doody could introduce evidence that Garcia participated in
the tenth murder, “cut deals” with law enforcement, entered into plea
agreements, implicated other people and minimized his involvement in all
ten murders. The court would not, however, allow Doody to introduce
evidence of the details of the tenth murder. The court held Rule 404(b) was
not designed to permit a party to “dredge up every bad thing [a] person has
done.” The court found Doody’s attempt to admit the details of the tenth
murder was “simply an argument that, boy, Garcia is a bad guy; he’s a bad
guy, don’t listen to him.” The court also held it was “running into a big
[Arizona Rule of Evidence] 403 wall” with the details of the tenth murder.
Regarding Garcia’s use of the phrase “no witnesses,” the court held Doody
could introduce evidence Garcia personally used the phrase after the
temple murders, but not in the context of the details of the tenth murder.
The court noted that this court addressed this final limitation on direct
appeal in 1996 and found no reversible error.

¶8             Pursuant to the court’s ruling, the jury heard evidence Garcia
and his girlfriend committed the tenth murder nine weeks after the temple
murders and that they both pled guilty and received prison sentences,
including a life sentence for Garcia. The jury learned the murder also
involved armed robbery. The jury learned the names of the victim and
Garcia’s girlfriend, Garcia’s and his girlfriend’s ages and the date and
location of the murder. The jury also heard evidence that Garcia pled guilty
to the tenth murder as part of the plea agreement in the temple murders
and that he did so to avoid the death penalty in both the temple and tenth
murders. Finally, the jury heard Garcia agree that he had benefited
“greatly” from his plea bargains with the state. Despite the trial court’s
ruling, Doody never asked Garcia if he used the phrase “no witnesses” after
the temple murders. Even so, the jury heard Garcia use the phrase during
his testimony about the temple murders without attributing it to Doody
and, therefore, knew the phrase and its use were not unique to Doody.




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                             STATE v. DOODY
                            Decision of the Court

       B.     Discussion

¶9            On appeal, Doody continues to argue the details of the tenth
murder were admissible pursuant to Rule 404(b) as evidence of the
common scheme or plan allegedly evidenced in the facts of the temple and
tenth murders. Doody argues the common scheme or plan was for Garcia
to plan to kill people to steal their money, manipulate someone else into
doing the killing and then, if caught, make a favorable deal with the state,
minimize his involvement and deflect the blame for any murder to the other
person.2

¶10            The trial court did not abuse its discretion when it limited the
evidence of the details of the tenth murder. First, combined with all of the
evidence regarding Garcia’s involvement in the temple murders and the
details of the resulting plea agreement, the jury heard more than sufficient
evidence about the tenth murder and Garcia’s subsequent “deal” with the
state to support Doody’s position that Garcia was simply a ten-time
murderer trying to keep his plea agreements intact by saying what the state
wanted to hear and blaming Doody. It was well within the trial court’s
discretion to find that additional details such as how Garcia manipulated
his girlfriend into shooting the victim and why they did so were of no
additional probative value. Second, a trial court “has considerable
discretion in determining whether the probative value of the evidence is
substantially outweighed by its unfairly prejudicial effect.” State v. Gilfillan,
196 Ariz. 396, 405, ¶ 29, 998 P.2d 1069, 1078 (App. 2000). The court did not
abuse its discretion when it held the probative value, if any, of the details
of an unrelated murder that occurred more than two months later was
outweighed by the considerations identified in Arizona Rule of Evidence
403.

¶11           Third, to admit another act as evidence of a common scheme
or plan pursuant to Rule 404(b), the other act must be “part of ‘a particular
plan of which the charged crime is a part.’” State v. Ives, 187 Ariz. 102, 106,
927 P.2d 762, 766 (1996) (quoting State v. Ramirez Enriquez, 153 Ariz. 431,
433, 737 P.2d 407, 409 (App. 1987)). It is not enough that other acts “’show
similarities where one would expect differences’ or demonstrate a ‘visual
connection’ to the other charged offenses.” Ives, 187 Ariz. at 108, 927 P.2d
at 768. Nor is mere similarity sufficient to prove conduct was part of a
common scheme or plan. State v. Hughes, 189 Ariz. 62, 69, 938 P.2d 457, 464

2     Doody’s defense at trial was that he was not at the temple the day of
the murders, was in no way involved in the murders and he was simply a
“dupe” for Garcia.

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                            STATE v. DOODY
                           Decision of the Court

(1997). “The common scheme or plan exception requires something more
than mere criminal tendencies.” Id. The evidence must be of a
“commitment to a particular plan of which the charged crime is a part. It is
a matter of the particularity of the plan and thus of the probative force of
the connection between one crime and another.” Ramirez Enriquez, 153 Ariz.
at 433, 737 P.2d at 409. “The distinction is between proving a specific plan
embracing the charged crime and proving a general commitment to
criminality which might well have involved the charged crime.” Id.
(quoting Morris K. Udall & Joseph M. Livermore, Arizona Practice: Law of
Evidence § 84, 184 n.17 (2d ed. 1982)).

¶12           Here, there is no common scheme or plan and there was
otherwise no probative connection between the details of the temple
murders and the tenth murder. While the tenth murder further established
that Garcia had criminal tendencies and/or a general commitment to
criminality that might involve murder and/or robbery, the tenth murder
was not evidence of a “commitment to a particular plan of which the
[temple murders and/or the tenth murder were] a part.” It was not enough
that both events involved robberies in which Garcia and/or his accomplice
shot a victim and took the victim’s money. The temple murders were a
mass murder. Garcia and Doody planned the temple crimes over a period
of months. They gathered information regarding the layout of the temple,
possible security systems, whether doors would be locked, the presence
and location of gold, money and other valuables they believed might be
inside as well as who would be present. They drew a diagram of the
temple. They obtained weapons. They wore clothing and equipment that
concealed their identities and made them appear to be law enforcement
officers. They planned who would go in first and continued the law
enforcement ruse to control the occupants once inside the temple. The tenth
murder was a crime of opportunity committed on the spur of the moment
by two teenage runaways who blundered into an unfortunate victim’s
campsite.

¶13           There was also no common scheme or plan because Garcia
never minimized his involvement in the tenth murder and did not
unjustifiably deflect blame to his girlfriend. He did not need to because his
girlfriend admitted she shot and killed the victim and Garcia’s statements
regarding the tenth murder matched the results of the investigation of that
murder “to a T.” Finally, Garcia’s post-arrest actions to obtain a plea deal
and/or make any deal more beneficial are in no way part of a “common
scheme or plan” as contemplated by Rule 404(b). Such actions do not
demonstrate “commitment to a particular plan of which the charged crime
is a part.” Were we to hold otherwise, a defendant’s attempts to minimize


                                     6
                            STATE v. DOODY
                           Decision of the Court

involvement and/or deflect blame during a criminal investigation or plea
negotiations could be considered part of a common scheme or plan. Rule
404(b) and the case law that addresses the rule do not contemplate such
absurd results.

¶14           Finally, in regard to the limitation of evidence regarding
Garcia’s use of the phrase “no witnesses” after the temple murders, this
court addressed this same issue in Garcia’s first appeal in 1996 and found
that limitation was well within the trial court’s discretion. State v. Doody,
187 Ariz. 363, 375, 930 P.2d 440, 452 (App. 1996). It remains so.3

II.    Sentencing

¶15           Doody committed the offenses when he was seventeen years
old. The trial court found Doody’s age was a mitigating circumstance for
sentencing purposes. The court found the presence of an accomplice was
the sole aggravating circumstance. Before it imposed sentence, the court
stated:

       This crime involved the murder of nine people, the murder of
       nine people that would seem to be the farthest away from any
       one of us in terms of becoming murder victims. These people
       were peace loving. These people did not seek violence. They
       were not involved with any violence, and just the fact that
       these nine people were murdered is difficult enough to
       understand, but the people who committed these crimes, this
       offense, in some ways is even harder to understand.

In regard to the aggregate length of the sentences, the court further stated:

       I don’t take lightly a sentence that does not allow someone to
       be released from prison. I obviously understand the impact
       of that sentence, but from my perspective, there can be no
       other sentence in this case other than a sentence that does not
       allow you to be released from prison.

The court then imposed the sentences identified above.


3     This court also addressed the exclusion of the other details of the
tenth murder in the first trial and found no error. That resolution is not
dispositive, however, because we addressed a different theory of
admissibility than the theory Doody relied upon in the third trial. Doody,
187 Ariz. at 374, 930 P.2d at 451.

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                            STATE v. DOODY
                           Decision of the Court

¶16            Doody contends his aggregate sentences, particularly the
aggregate life sentences, constitute cruel and unusual punishment. He
argues the United States Supreme Court opinions in Miller v. Alabama and
Graham v. Florida mandate that juvenile offenders must receive sentences
that grant a meaningful opportunity to obtain release from prison. Doody
further argues Miller identified mitigating circumstances that a trial court
must consider before it imposes sentence on a juvenile defendant and the
trial court erred when it failed to consider and/or find those mitigating
circumstances.

¶17            Doody raised no objection to his sentences or the court’s
failure to consider any mitigating circumstances, nor did he identify Miller
as authority that required the court to consider any specific circumstances.
Even so, “[i]mposition of an illegal sentence constitutes fundamental error.”
State v. Thues, 203 Ariz. 339, 340, ¶ 4, 54 P.3d 368, 369 (App. 2002).

¶18           We find no error. First, Doody misconstrues the holdings in
Miller and Graham. In Graham, the sole issue was whether the Constitution
permits a court to sentence a juvenile defendant to life imprisonment
without the possibility of parole “for a nonhomicide crime.” Graham v.
Florida, 560 U.S. 48, 52-53 (2010) (emphasis added). The Supreme Court
held the Eighth Amendment forbids such sentences. Id. at 74. The Court
further held states must give a juvenile offender convicted of a
nonhomicide crime “some meaningful opportunity to obtain release based
on demonstrated maturity and rehabilitation.” Id. at 75. The court made
clear, however, that states need not guarantee eventual freedom for a
“juvenile nonhomicide offender” and are not required to release such
offenders during their natural lives. Id. For these reasons, Graham has no
application here.

¶19           Likewise, Miller has no application. In Miller, the Supreme
Court held the Eighth Amendment prohibits mandatory sentences of life
imprisonment without the possibility of parole for juvenile offenders.
Miller v. Alabama, __ U.S. __, 132 S. Ct. 2455, 2460 (2012). Doody did not
receive a mandatory sentence of life without the possibility of parole.
Further, Miller expressly held that a juvenile offender who commits a
homicide may still receive a sentence of life imprisonment without the
possibility of parole. Id., __ U.S. at __, 132 S. Ct. at 2469. Miller simply
requires the sentencing court to consider the offender’s age and “how
children are different” before it does so. Id. Despite Doody’s argument to
the contrary, Miller did not list specific mitigating circumstances the court
must consider. The factors Doody identifies from Miller were simply the
court’s examples of the “hallmark features” of young age and other factors


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                             STATE v. DOODY
                            Decision of the Court

attendant to juveniles and juvenile life that mandatory life sentences without
the possibility of parole do not allow a sentencing court to consider. Id., __
U.S. at __, 132 S. Ct. at 2468.

¶20           Second, as noted above, the trial court found Doody’s age was
a mitigating circumstance. The court further noted that it considered
Doody’s sentencing memorandum and did not suggest that it refused to
consider any of the circumstances Doody identified. That memorandum
detailed Doody’s background, including his difficulty in school, difficulty
with the English language, the alcoholism of his stepfather, physical and
mental abuse by his stepfather, Doody’s social awkwardness, his lack of
emotional maturity and awareness at the time of the offenses and his
exemplary behavior while in custody. A trial court must only consider
mitigating factors. See State v. Jenkins, 193 Ariz. 115, 121, ¶ 25, 970 P.2d 947,
953 (App. 1998). The court need not find mitigating factors simply because
there is evidence of those factors. Id. The trial court considered the factors
presented and nothing more was required.

¶21            Finally, Doody received the minimum sentence available for
each count of first degree murder - life with a possibility of release after
twenty-five years. A.R.S. § 13-703(A) (1989). That Doody will spend the
rest of his life in prison because the court properly imposed consecutive
sentences is of no matter. A sentence that does not violate the prohibitions
against cruel and unusual punishment does not become unconstitutional
“merely because it is consecutive to another sentence for a separate offense
or because the consecutive sentences are lengthy in aggregate.” State v.
Berger, 212 Ariz. 473, 479, ¶ 28, 134 P.3d 378, 384 (2006).




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                          STATE v. DOODY
                         Decision of the Court

III.   Conclusion

¶22          Because we find no error, we affirm Doody’s convictions and
sentences.




                                :ama




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