The sentencing phase in the double-homicide death penalty trial for Jason Eugene Bush will proceed despite concern that the victim impact statement read to the jury contained potentially prejudicial information.
On March 25, the jury returned guilty verdicts against Bush, 36, on two counts of first-degree murder in the May 30, 2009 deaths of Raul “Junior” Flores and his daughter, Brisenia, 9, at their home in Arivaca. The jury further found that the murders were premeditated and were also committed while Bush was engaged in other felony activities, including the attempted first-degree murder of Gina Marie Gonzalez; one count of burglary in the first-degree; one count of aggravated assault, serious physical injury; one count of aggravated assault, deadly weapon/dangerous instrument; one count of armed robbery; and one count of aggravated armed robbery.
Following that the jury confirmed that aggravating factors existed which make Bush eligible for the death penalty in this case.
The issues regarding the potentially prejudicial statements by Gonzalez as she read a victim impact statement at the start of the sentencing phase of the trial were raised as the lawyers were finalizing the final instructions for the sentencing phase. The defense asked Judge John S. Leonardo for an instruction telling the jury to disregard portions of that statement. “The limiting jury instruction is simply not the law,” said Deputy County Attorney Rick Unklesbay. “First of all, counsel is just absolutely incorrect on the law,” said defense counsel Chris Kimminau.
Unklesbay’s contention was that the statement by Gonzalez contained no statements that were prejudicial to Bush. “Apparently, the claim by the defense is that Ms. Gonzalez made some statements about the crime itself,” he said. “She never made a sentencing recommendation so there is no constitutional violation. In fact, there was nothing more than what the jury already heard during her testimony in the guilt phase about the crime itself. They are not entitled to some sort of limiting instruction.”
Unklesbay asserted that Gonzalez has the right to talk to the jury about how this crime had affected her and her family. “Ms. Gonzalez can rightfully get up before a jury and talk to them about how Mr. Bush’s actions, what he did and how she was affected, and that’s what she did,” he said. “There is no prohibition for her to talk about what the defendant did.”
Unklesbay challenged the defense to point out the portions of the victim impact statement that were in violation of case law. Kimminau replied that the U.S. Supreme Court decision in Payne vs. Tennessee limits the scope of a victim impact statement and he pointed out several places in the statement that were in violation of case law. “She states ‘When the defendants came to may door my husband opened the door thinking everything would be okay,’” Kimminau said. “It goes on and does nothing but describe the crime all the way through including such statements as ‘close enough to almost blow her face completely off.’ That has nothing to do with the impact of the crime on her family.”
Kimminau pointed to another portion of the victim impact statement. “It goes on to say ‘What could a 9-year-old have possibly done to deserve being shot like that?’” he argued. “What does that have to do with the victim or the victim’s impact on the family?”
Kimminau continued to read examples of the victim impact statement by Gonzales. “’I don’t understand how someone could have so much hate in their heart,’” he said. “Who is she referring to there?”
“She is referring to herself and the impact on her,” Leonardo interjected. “In the line before that says ‘I had a difficult time trying to direct my grieving for both of them because it was so overwhelming.’ Then she goes on to describe what she witnessed.”
Kimminau argued that the jury need only be concerned with the aggravating factors that made Bush eligible to receive the death penalty. “You should be instructing the jury that anything about the crime other than the aggravating factors themselves cannot be considered,” Kimminau replied. “She interjected ‘the horrific murders.’ That’s inappropriate because that’s now commenting on the crime itself.”
Kimminau then requested a mistrial be declared for the sentencing phase of the proceedings. “She goes on with the most appalling of everything and I’m moving for a mistrial ‘It’s hard for me to understand how this all happened. I have so many questions that will remain unanswered. I just want to know why you chose to exchange my husband’s and daughter’s lives for a souvenir that you had bragged about like you had won a medal for what you had done to my family,’” Kimminau said. “That is a mistrial right there. That is so prejudicial, totally inappropriate, clearly not dealing with the victim, clearly directed toward the defendant, directed towards the defendant’s actions and his actions afterwards.”
Kimminau told Leonardo that there is an aggravating factor in statute that applies, but that it was not alleged by the prosecution. “There is an aggravating factor for relishing, your honor,” he said. “That aggravating factor wasn’t presented nor was it proven.”
Leonardo denied the motion for a mistrial expressing some concerns. “It is some cause for concern to the extent that the statements reference the nature of the crime and anything about the defendant’s person,” he said. “I think those things are fairly minimal. Based on that I don’t think there’s enough prejudice to justify a mistrial so that motion is denied.”