In September 2003, Frank Silva Roque was found guilty of first degree murder, attempted first degree murder, reckless endangerment, and three counts of drive-by shooting, all based on a September 15, 2001 shooting spree in which he targeted people of Arab descent. He was sentenced to death for the murder. Roque raised thirty issues on appeal, for most of which the court found no error.
Justice Berch, writing for a unanimous court, found that the State’s failure to fully and fairly disclose to the defense the results of a State’s expert’s assessment of Roque’s mental health, the critical issue in the case, violated Arizona Rule of Criminal Procedure 15.1(a)(3). The court found that Rule 15.1(a)(3) requires disclosure of an expert opinion even if the expert has not prepared a written report or statement. Nevertheless, because the defense refused to accept the trial court’s sanction (a short continuance), the court could not conclude that the trial court’s failure to preclude the expert testimony constituted reversible error. The court also identified two other instances of prosecutorial misconduct, including injection of the prosecutor’s opinion of the validity of a psychiatric test and harassment of an expert witness. The court found that none of these incidents of misconduct were individually reversible and further found that the cumulative effect of these three incidents of misconduct did not warrant reversal.
Because Roque’s crimes were committed before August 1, 2002, the court independently reviewed the aggravating circumstances and the mitigating evidence to assess the propriety of imposing the death sentence. The court found that the (F)(3) aggravating factor was proven beyond a reasonable doubt, but gave substantial weight to the mitigating evidence showing an impaired mental condition and a low IQ. Taken as a whole, the court found that the mitigating evidence raised a substantial question as to whether death was an appropriate sentence and reduced the sentence to natural life with no chance of release.
Justice Berch authored the opinion; Justices McGregor, Hurwitz and Bales and Judge Barker concurred.