High court upholds cop killer's conviction

Says death penalty in Hardesty slaying imposed properly
2008-04-22T00:00:00Z High court upholds cop killer's convictionBy Howard Fischer Capitol Media Services Arizona Daily Star

PHOENIX — The state Supreme Court upheld the conviction and death sentence of the killer of a Tucson police officer on Monday, concluding the trial was not tainted by publicity.

In a unanimous decision, the justices acknowledged there was extensive media attention to the 2003 shooting death of Patrick Hardesty, the first officer shot in the line of duty in 21 years. That included "hundreds" of newspaper, radio and TV stories about the killing and the suspected guilt of John Montenegro Cruz.

Local radio stations and grocery stores also raised money for the officer's family; flags were flown at half-staff; a billboard on a major street was erected; and a local police substation was named for Hardesty.

But Justice Rebecca White Berch, writing for the court, said none of that meant Cruz could not get a fair trial in Pima County.

"Although the publicity was extensive, it was not outrageous and did not create a carnival-like atmosphere," she wrote.

Nor was the court swayed by a poll of potential jurors, even though a poll showed 51 percent said they thought Cruz was likely guilty of the crime. But Berch said the poll was conducted a year before the start of the trial, and there was no evidence potential jurors could not set aside their initial impressions of guilt.

The 2003 incident stems from an investigation of a hit-and-run accident by Hardesty and Benjamin Waters, which led to a nearby apartment where they found two women and Cruz, who fit the description of the driver. Cruz identified himself as "Frank White."

As Hardesty and Cruz went back to the car, Cruz leaned in as if to retrieve something and then took off running. Hardesty chased him on foot; Waters drove the patrol car around the block to cut Cruz off.

When Waters turned the corner, he said, he saw Cruz throw down a gun. Hardesty's body was immediately discovered. He had been shot five times; four of those shots came from no more than a foot away.

Aside from complaints about pretrial publicity, Cruz also objected to being required to wear a "shock belt" under his shirt that allowed security personnel to shock him if he tried to escape or became violent. While the belt was not visible to jurors, Cruz complained it impeded his ability to communicate with his lawyer during the trial.

Berch said the trial judge reviewed two reports detailing a possible escape attempt. When Cruz challenged the accuracy of the reports, the judge offered to conduct a hearing, but Cruz's counsel was not ready to proceed and never subsequently asked for one.

Berch said questions of courtroom security are generally left to trial judges. And she said the Supreme Court found no abuse of that discretion.

The high court also refused to set aside the death sentence. The justices said the jury properly found that Cruz had killed a police officer — one of the factors that allow a death sentence — and said jurors did not err in concluding there were not enough mitigating factors to spare his life.

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