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Appellant Clarence Dixon was convicted of first degree murder and sentenced to death. At trial, he represented himself. A jury found him guilty on all counts. When Appellant elected before trial to represent himself, the judge warned him that he would have sole responsibility for his defense, including examining and cross-examining witnesses. Appellant requested that an advisory counsel handle the examination of witnesses. The trial court rejected this proposal. On appeal, Appellant claimed multiple errors by the trial court entitled him to a new trial, including the trial court’s denial of his proposed “hybrid representation.” The Supreme Court noted that “there is no constitutional right to hybrid representation.” The Court found that the trial court did not abuse its discretion in denying Appellant’s motion. Finding no other errors from trial, the Court affirmed the lower court’s decision and Appellant’s death sentence.Receive FREE Daily Opinion Summaries by Email
SUPREME COURT OF ARIZONA
STATE OF ARIZONA,
CLARENCE WAYNE DIXON,
Arizona Supreme Court
O P I N I O N
Appeal from the Superior Court in Maricopa County
The Honorable Andrew G. Klein, Judge
THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL
Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Jeffrey A. Zick, Assistant Attorney General
Attorneys for State of Arizona
BRUCE PETERSON, OFFICE OF THE LEGAL ADVOCATE
Consuelo M. Ohanesian, Deputy Legal Advocate
Attorneys for Clarence Wayne Dixon
H U R W I T Z, Vice Chief Justice
murder and sentenced to death.
We have jurisdiction over his
automatic appeal under Article VI, Section 5(3) of the Arizona
Constitution and A.R.S. §§ 13-4031 and 13-4033(A)(1) (2011).1
This opinion cites the current version of statutes that
have not materially changed since the events at issue.
FACTUAL AND PROCEDURAL BACKGROUND2
Arizona State University senior, had dinner with her parents and
then went to a nearby bar to meet a female friend.
arrived at the bar at 9:00 p.m. and stayed until approximately
12:30 a.m., when Deana told the friend she was going home and
drove away alone.
Deana and her boyfriend lived in a Tempe apartment.
He returned to their apartment at about 2:00 a.m. after spending
the evening with his brother and found Deana dead on the bed.
She had been strangled with a belt and stabbed several times.
Investigators found semen in Deana’s vagina and on her
underwear, but could not match the resulting DNA profile to any
against a national database and found that the profile matched
that of Clarence Dixon, an Arizona prison inmate.
lived across the street from Deana at the time of the murder.
between her and Dixon.
Dixon was charged with first degree murder and chose
to represent himself.
The jury found that he had committed both
premeditated and felony murder.
In the aggravation phase, the
We view the facts “in the light most favorable to upholding
State v. Chappell, 225 Ariz. 229, 233 ¶ 2 n.1,
236 P.3d 1176, 1180 n.1 (2010).
jury found that Dixon had previously been convicted of a crime
punishable by life imprisonment, A.R.S. § 13-751(F)(1), and that
In the penalty phase, the jury determined that Dixon
should be sentenced to death.
ISSUES ON APPEAL
A. Prosecutorial Misconduct
assaulted her in 1985 while she was a 21-year-old student at
Northern Arizona University.
The court admitted this testimony
under Arizona Rule of Evidence 404(c) after conducting a pretrial
committed the 1985 rape, but claims that because the medical
examiner could not conclusively opine that Deana had also been
testimony of the 1985 victim.
1. Standard of review
prosecutorial misconduct must establish that “(1) misconduct is
indeed present; and (2) a reasonable likelihood exists that the
denying [the] defendant a fair trial.”
State v. Velazquez, 216
Ariz. 300, 311 ¶ 45, 166 P.3d 91, 102 (2007) (alteration in
made no claim of prosecutorial misconduct below, we review for
See State v. Henderson, 210 Ariz. 561, 567
¶ 19, 115 P.3d 601, 607 (2005).
2. The prosecutor did not commit misconduct
admissible after conducting a pre-trial evidentiary hearing.
trial, the prosecutor offered only the evidence that the judge
expressly permitted in his pre-trial order.
This is plainly not
Dixon nonetheless argues that the prosecutor committed
misconduct because he knew that the State could not prove that
Deana had been raped, and the prior acts therefore could not
demonstrate “an aberrant sexual propensity to commit the crime
charged,” as Rule 404(c)(1)(B) requires.
The jury, however,
On appeal, Dixon has not directly challenged
the sufficiency of the evidence to support that verdict.
Although the testifying medical examiner could not
independently verify that Deana had been raped, he refused to
rule out a sexual assault.
Rather, he affirmed that “rape can
occur with no injuries.”
There was ample evidence from which the jury could
conclude that Deana had been raped.
She had left a bar alone at
12:30 a.m. and was found dead in her apartment, with a belt
tightly cinched around her neck, only 90 minutes later.
semen was found on her underpants (which she had first put on
that evening) and in her vagina.
acquaintance with Dixon.
Deana had no known previous
She had indentations on her right
wrist, indicating she had been restrained.
Her clothing was
disheveled, and she had urinated on the bed.
Dixon’s claim that
the prosecutor “misled the trial court” as to whether Deana had
been raped finds no support in the record.
B. Admissibility of the Rule 404(c) Evidence
Although Dixon does not directly argue that the other
acts evidence was improperly admitted, that argument underpins
before us, we find it unavailing.
To admit evidence of another sexual offense, the trial
court must find:
The evidence is sufficient to permit the trier of
fact to find that the defendant committed the
The commission of
reasonable basis to
a character trait
sexual propensity to
The evidentiary value of proof of the other act
is not substantially outweighed by danger of
unfair prejudice, confusion of issues, or other
factors mentioned under Rule 403. . . .
the other act provides a
infer that the defendant had
giving rise to an aberrant
commit the crime charged.
Ariz. R. Evid. 404(c)(1).
As required by State v. Aguilar, 209
Ariz. 40, 49 ¶ 30, 97 P.3d 865, 874 (2004), the trial court made
Those findings are well supported by the record.
Dixon was convicted of the 1985 sexual assault.
Rule 404(c)(1)(A) that the evidence be sufficient to allow the
trier of fact to conclude that the defendant committed the other
reasonable basis for concluding pursuant to Rule 404(c)(1)(B)
that Dixon “has a character trait giving rise to an aberrant
sexual propensity to commit the crime charged (sexual assault
expert on sex offenders testified at the pre-trial hearing about
Both victims were 21-year-old college students with brown hair,
brown eyes, and similar height and weight.
In each case, a
knife was used, the victim was restrained, and homicide was
either threatened or occurred.
re-dressed after the rape.
Both victims had apparently been
The expert opined that Dixon had an
aberrant propensity to commit sexual assault.
Given the expert
Ariz. R. Evid. 404(c)(1)(B), cmt. to 1997
Amend. (finding can be based on “expert testimony” or other
Rule 404(c)(1)(C) requires that the evidentiary value
of the other sexual conduct not be substantially outweighed by
the danger of unfair prejudice.
The trial judge did not abuse
In finding the other act not unduly remote, the
judge noted that Dixon was out of custody for only about a year
between Dixon and Deana, so the real question – at least for
determining whether the predicate felony of rape occurred – was
during trial that Deana had consented to sex.
His 1985 sexual
refuting that claim and establishing that a rape occurred in
C. Physical Restraints
At trial, Dixon was required to wear a stun belt and a
leg brace under his clothing.
Citing Deck v. Missouri, 544 U.S.
622 (2005), he argues that these restraints violated his right
to a fair trial.
1. Relevant facts
When Dixon was tried, the Maricopa County Sheriff’s
civilian clothing to wear a leg brace and a stun belt while in
Before trial, Dixon moved only to “exclud[e] the leg
before the jury that the State will enjoy.”
The trial judge denied the motion, stating that “there
are [jail] security policies for all in-custody defendants who
seated at counsel table in the jury’s presence to avoid any
possibility that the security devices would be visible to them.
Dixon instead sought to move about the courtroom during trial.
Expressing concern that the leg brace might cause Dixon to walk
awkwardly, the judge said “if you want to make a motion to allow
you to stand up or to approach and you waive your right to have
the jury not see you walking in a stilted fashion, I’ll consider
After Dixon acknowledged the risk that a
acceded, stating “[t]he Court finds your decision to approach
the podium even though you have leg braces on and even though
knowing, voluntary, and intelligent one.”
The judge nonetheless repeatedly took steps to prevent
the jury from seeing the leg brace and stun belt.
arranged for Dixon to be standing at the podium when the jury
presence not to allow the jury to “see him walk.”
instructed advisory counsel to approach for bench conferences
approach the bench.
The court also told Dixon several times to
not turn his back to the jury and bend over, as doing so might
show the outline of the stun belt under Dixon’s shirt.
2. Standard of review
Generally, “[m]atters of courtroom security are left
to the discretion of the trial court.”
State v. Davolt, 207
Ariz. 191, 211 ¶ 84, 84 P.3d 456, 476 (2004).
“We will uphold a
trial court’s decision concerning trial security measures when
the decision is supported by the record.”
cannot routinely place defendants in shackles or other physical
restraints visible to the jury” during a trial absent a case
specific finding of a security concern.
Deck, 544 U.S. at 633
Dixon argues that the trial judge erred by not making
the requisite finding.
The State contends that this argument
was waived because it was not made at trial.
motion, however, sufficiently preserved the objection to the leg
See State v. Anthony, 218 Ariz. 439, 446 ¶ 38, 189 P.3d
366, 373 (2008).
Dixon, however, never objected to the stun belt, and
indeed suggested that the belt would not impair his opportunity
to defend himself.
Therefore, we review the stun belt issue for
Cf. State v. Mills, 196 Ariz. 269, 272-73
defendant initially questioned the use of shackles, but did not
further object after switching to a concealed leg brace).
must prove “both that fundamental error exists and that the
error in his case caused him prejudice.”
Henderson, 210 Ariz.
at 567 ¶ 20, 115 P.3d at 607.
3. Alleged Deck error
a. Case specific determination
Before authorizing visible restraints, the trial court
During the guilt phase, Deck wore “leg braces that
apparently were not visible to the jury.”
544 U.S. at 624.
Deck did not challenge the leg braces on appeal. Deck v. State,
68 S.W.3d 418 (Mo. 2002).
After his first sentence was set
aside on unrelated grounds, id., Deck wore handcuffs, leg irons,
and a belly chain at his resentencing, Deck, 544 U.S. at 625.
must make a “case specific” determination reflecting “particular
concerns, say, special security needs or escape risks, related
to the defendant on trial.”
Deck, 544 U.S. at 633.
based solely on a general jail policy of shackling defendants
who wear jail garb or exercise their constitutional right to
represent themselves is clearly not the kind of ‘case specific’
State v. Gomez, 211 Ariz. 494, 504 ¶ 49, 123 P.3d 1131, 1141
(2005) (footnote omitted).
A trial judge “must have grounds for
Rather, the judge should schedule a hearing at the defendant’s
request regarding the need for the restraints.”
State v. Cruz,
218 Ariz. 149, 168 ¶ 119, 181 P.3d 196, 215 (2008).
The trial judge here cited only jail policy and made
no particularized finding of the need for security measures.
reiterate that judges should not simply defer to jail policy in
determine on a case-by-case basis whether security measures are
required as to the particular defendant before them.
however, requires reversal only if restraints
are “visible to the jury.”
Deck, 544 U.S. at 633; Gomez, 211
Ariz. at 504 ¶ 50, 123 P.3d at 1141; see also Mills, 196 Ariz.
at 272-73 ¶ 13, 995 P.2d at 708-09 (observing that “an unseen
restraint could not have affected the presumption of innocence”
(internal quotation marks omitted)).
The central issue here is
thus whether the restraints were visible.
b. Leg brace
In Gomez, we rejected the State’s argument that “leg
irons” and “chains” were not visible, in large part because the
trial judge offered to instruct the jury not to consider “the
211 Ariz. at 504 ¶ 50, 123 P.3d at 1141.
typically worn under a defendant’s clothes, as they were here.
Dixon cites no case holding that concealed leg braces
decisions correctly treat a leg brace worn under clothing as not
visible in the absence of evidence to the contrary.
State v. Ninci, 936 P.2d 1364, 1387 (Kan. 1997); Zink v. State,
278 S.W.3d 170, 186 (Mo. 2009).
There is no evidence here that
the jury either saw the brace or inferred that Dixon wore one.
Cf. State v. Wassenaar, 215 Ariz. 565, 576 ¶ 44, 161 P.3d 608,
619 (App. 2007) (“While Defendant contends that several jurors
did see the restraints at some unspecified time, he provided no
admissible evidence to support his contention.”).
c. Stun belt
Because Dixon did not object to the stun belt below,
under fundamental error review he must show that it was visible
to the jury.
He has not met that burden.
Although the trial
judge, in warning Dixon not to bend over or turn his back to the
jury, speculated that jurors might be able to see the outline of
the belt beneath Dixon’s clothing, Dixon has not established
that the jury actually saw the belt or inferred its presence.
Dixon cites United States v. Durham, 287 F.3d 1297,
1305 (11th Cir. 2002), which suggests that even a non-visible
stun belt might violate the right to a fair trial.
argument that the threat of electric shock would inhibit his
Id. at 1305-06.
In contrast, Dixon did not object to
the stun belt, expressly conceding that the non-visible belt
would allow him to freely express himself in court.
circumstances, we find no fundamental error.
d. Harmless error
Even when visible restraints are improperly imposed,
“[w]hen it is clear beyond a reasonable doubt that a rational
jury would have found the defendant guilty absent the error, the
error is harmless.”
Hymon v. State, 111 P.3d 1092, 1099 (Nev.
2005); see also Deck, 544 U.S. at 635 (noting applicability of
harmless error doctrine).
Given the DNA evidence implicating
Dixon and the circumstances of the crime, this is such a case.
To conclude that Dixon had not committed the murder, the jury
minutes between the time she left the bar and was found dead, to
have had sex with Dixon, apparently a complete stranger, and
that after Dixon left her apartment, another person entered the
apartment, strangled and stabbed her.
D. Admission of Dr. Keen’s Testimony
Dr. Heinz Karnitschnig, the Maricopa County medical
examiner at the time of the murder, conducted the autopsy and
prepared a report.
He did not testify at trial.
examiner, testified based on his review of the autopsy report
Neither the report nor the photographs were
admitted into evidence.
argument below, so we review only for fundamental error.
v. Womble, 225 Ariz. 91, 96 ¶ 10, 235 P.3d 244, 249 (2010).
find no error, fundamental or otherwise.
Because the State does not argue to the contrary, we
assume arguendo that the autopsy report itself was testimonial
But see United States v. De La Cruz, 514 F.3d 121, 133
(1st Cir. 2008) (autopsy reports not testimonial hearsay under
Crawford); United States v. Feliz, 467 F.3d 227, 230 (2d Cir.
But that assumption avails Dixon not at all,
Rather, Dixon argues that Dr. Keen’s testimony, which relied on
the objective data in the report, was testimonial hearsay and
thus violated the Confrontation Clause.
We have previously rejected this very argument.
e.g., State v. Snelling, 225 Ariz. 182, 187 ¶ 21, 236 P.3d 409,
414 (2010); State v. Smith, 215 Ariz. 221, 228 ¶ 23, 159 P.3d
531, 538 (2007).
Our cases teach that a testifying medical
examiner may, consistent with the Confrontation Clause, rely on
information in autopsy reports prepared by others as long as he
forms his own conclusions.
Smith, 215 Ariz. at 228 ¶ 23, 159
P.3d at 538; State v. Gomez, 226 Ariz. 165, 169-70 ¶ 22, 244
P.3d 1163, 1167-68 (2010) (“[A] medical examiner may offer an
prepared by others, as long as the testifying expert does not
admitted into evidence).
Dr. Keen’s testimony is indistinguishable from that
upheld in our prior cases.
The medical examiner offered his
independent conclusions, relying on the factual findings of the
He neither parroted the report nor recited Dr.
E. Denial of Hybrid Representation
When Dixon elected before trial to represent himself,
the judge warned him that he would have “sole responsibility for
counsel cross-examine the State’s DNA experts.
however, to continue to represent himself in all other respects.
The trial court rejected “hybrid representation,” stating that
Dixon could elect to have counsel represent him at any point in
the trial, but would not then be allowed to revert to selfrepresentation.
representation for abuse of discretion.
State v. Cornell, 179
Ariz. 314, 325, 878 P.2d 1352, 1363 (1994).
Id.; see also State v. Roscoe, 184 Ariz. 484,
sought to have advisory counsel cross-examine an expert.
Ariz. at 324-25, 878 P.2d at 1362-63.
As here, the trial judge
gave the defendant the option of continuing to represent himself
or having counsel take over completely.
The defendant chose self-representation and we upheld the
Id. at 325, 878 P.2d at
trial judge’s order, noting that a request to resume pro per
status during trial is “uniformly held” untimely, and that the
denial of an untimely motion is not an abuse of discretion.
at 326, 878 P.2d at 1364.
Similarly, the trial court here did
not abuse its discretion in denying Dixon’s motion for hybrid
F. Exclusion of Diary Evidence
Dixon argues that the trial court erroneously excluded
an entry from Deana’s diary, which he claims stated that she had
Dixon argues that the evidence should have
been admitted under Arizona Rule of Evidence 803(3) to show that
his sexual contact with her was consensual, as she likely would
have forcibly resisted an assault.
Before trial, Dixon moved in limine to allow evidence
that Deana was sexually active.
This motion did not mention the
diary or the trip to Europe.
The court denied the motion,
citing the rape shield law, A.R.S. § 13-1421(A) (2010).
At trial, after Dixon asked Deana’s mother about the
diary, the prosecutor sought to exclude evidence from the diary
wanted to elicit the information from Deana’s boyfriend, and
added, “I doubt seriously I will use the diary itself.”
court ruled that Dixon could inquire about a witness’s first17
hand knowledge of Deana’s state of mind, but not about what was
in the diary.
Dixon then claimed for the first time that the diary
referred to a sexual assault in Europe, and the court stated
that it had
ruled under the rape shield law that her sexual
activity or conduct is irrelevant, immaterial, and
specifically excluded by statute unless you can fit it
into one of the narrowly defined exceptions under the
You haven’t given me a reason why this should
now come in.
Whether you call it an experience, a
rape, a molestation, whether you call it consensual
activity, whatever you call it, it’s still sexual
conduct under the statute.
The judge subsequently allowed Dixon to ask Deana’s boyfriend if
she carried a knife for personal protection.
The State contends that Dixon did not preserve any
objection to exclusion of evidence from the diary because the
record does not disclose what the document actually says.
Ariz. R. Evid. 103(a)(2) (requiring offer of proof to preserve
objection to exclusion of evidence); State v. Towery, 186 Ariz.
168, 179, 920 P.2d 290, 301 (1996) (requiring, “[a]t a minimum,
an offer of proof stating with reasonable specificity what the
evidence would have shown”).
Although Dixon and
counsel discussed what they claimed was in the diary, no offer
of proof was made, nor was the diary marked for identification.
We thus have no basis for determining precisely what evidence
Even had the issue been properly preserved for appeal,
and assuming the contents of the diary were as Dixon claimed,
See State v. Villalobos, 225 Ariz. 74, 82 ¶ 33,
reviewed for abuse of discretion).
minimal probative value.
The alleged statements had
Deana’s state of mind years before the
murder hardly establishes that she surely would or could have
used a knife or other weapon to prevent this assault.
The diary evidence was also properly excluded under
the rape shield law, which categorically prohibits evidence of
“a victim’s reputation for chastity,” and allows evidence of
“instances of the victim’s prior sexual conduct” only in limited
circumstances not applicable here.
A.R.S. § 13-1421(A).
Dixon argues that a prior sexual assault is not “prior
sexual conduct” because a sexual assault is a crime of violence,
and thus also does not reflect on the victim’s “chastity.”
sexual conduct under rape shield laws.
See Grant v. Demskie, 75
F. Supp. 2d 201, 211-12 (S.D.N.Y. 1999) (collecting cases).
questions about prior consensual conduct, but subject them to
Ariz. 22, 27, 760 P.2d 1071, 1076 (1988) (applying common law
rape shield doctrine to child molestation victims).
G. Denial of Motion for a Continuance
Dixon was arraigned in January 2003; the State filed a
notice of intent to seek the death penalty in March of that
In July 2003, defense counsel suggested that it might
take longer than usual to compile mitigation evidence because
Dixon spent his early life on the Navajo reservation.
year,” the judge set the trial date for June 15, 2004.
Over the next few years, the court repeatedly granted
defense requests to continue the trial.
In April 2004, the
continuance and vacated the June trial date.
After the case was
reassigned to a new specialist, the deadline for disclosure of
mitigation evidence was accordingly extended to January 2005.
permission to represent himself in March 2006, the trial date
was set for October 18, 2006.
In September 2006, however, Dixon
estimated that his mitigation evidence would not be ready for
“nine months or a year.”
The court continued the trial to June
25, 2007, “a date certain.”
mitigation was still not ready and sought another continuance.
The trial was reset for August 2007.
Two months later, Dixon
frustration, the judge reset the trial date for September 13,
At a subsequent hearing, the trial date was moved back to
November 13, 2007.
motion, noting in a minute entry that “[t]he defense mitigation
work-up in this case has been ongoing for well over four years.”
At all times relevant to this case, Arizona Rule of
Criminal Procedure 8.2(a)(4) provided that capital cases “shall
be tried” within eighteen months of arraignment.4
are governed by Rule 8.5(b), which states, in pertinent part:
A continuance of any trial date shall be granted only
upon a showing that extraordinary circumstances exist
and that delay is indispensable to the interests of
A continuance may be granted only for so
long as is necessary to serve the interests of
In ruling on a motion for continuance, the
court shall consider the rights of the defendant and
any victim to a speedy disposition of the case.
We review denials of continuances for “clear abuse of
discretion,” State v. Schackart, 190 Ariz. 238, 254, 947 P.2d
The rule now requires capital cases to be tried within
twenty-four months of arraignment. Ariz. R. Crim. P. 8.2(a)(4).
315, 331 (1997), as the trial judge is “the only party in a
circumstances’ warranting a continuance and whether ‘delay is
indispensable to the interests of justice,’” State v. Hein, 138
Ariz. 360, 368, 674 P.2d 1358, 1366 (1983).
We find no abuse of discretion here.
more than four years to develop mitigation.
Dixon was given
The trial court
found that the particular circumstances of this case, including
mitigation expert, justified repeatedly continuing the original
Indeed, the judge granted continuances even after
cautioning Dixon that he had set “a date certain for trial.”
Dixon’s requests for continuances were premised on the
alleged need to develop more mitigation evidence.
the penalty phase, Dixon presented virtually no evidence, even
though advisory counsel advised the court that witnesses, both
amounts of mitigation.
In deciding to forego this available
advisory counsel and the strong suggestions of the trial court.
Instead, he chose to call only an expert to testify about his
In rejecting Dixon’s final continuance request, the
trial court appropriately considered not only Dixon’s interests,
but also the rights of Deana’s parents, the crime victims.
8.5(b) expressly directs the trial judge to consider the rights
of victims, who, like the defendant, are entitled under our
Constitution to a speedy disposition of criminal charges.
Ariz. Const. art. 2, § 2.1(A)(10).
Deana’s parents repeatedly
asserted that right and the superior court did not abuse its
honoring their request that the trial proceed.
H. Issues Raised to Avoid Federal Preclusion
been rejected in decisions by the Supreme Court of the United
identifies as rejecting them are reprinted in the appendix to
I. Independent Review of the Death Sentence
Because the murder in this case occurred before August
1, 2002, we independently review the aggravation and mitigation
A.R.S. § 13-755; 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1,
We “do not defer to the findings or decision of the
determin[ing] the propriety of the death sentence.”
(alteration in original) (internal quotation marks omitted).
consider the quality and strength, not merely the quantity, of
mitigation is sufficiently substantial to warrant leniency,” we
must impose a life sentence.
Id. at ¶ 81 (internal quotation
conviction of a crime for which life imprisonment or death was
statutory factors were established beyond a reasonable doubt.
Dixon was convicted of seven crimes stemming from the
Dixon thus correctly concedes that the A.R.S. § 13-
751(F)(1) aggravator was proved.
751(F)(6) when the victim consciously “suffered physical pain or
mental anguish during at least some portion of the crime and 
the defendant knew or should have known that the victim would
State v. Morris, 215 Ariz. 324, 338 ¶ 61, 160 P.3d
203, 217 (2007).
We find especial mental cruelty here.
surely must have suffered mental anguish while being raped, hit,
and strangled, and Dixon should have known that the victim would
suffer such anguish.
See State v. McCray, 218 Ariz. 252, 259
¶¶ 32-33, 183 P.3d 503, 510 (2008) (finding mental anguish under
similar facts); see also State v. Gallardo, 225 Ariz. 560, 56566 ¶¶ 17-19, 242 P.3d 159, 164-65 (2010) (finding mental anguish
when the defendant bound the victim and covered his head with a
pillowcase before shooting him).5
Dixon presented only one witness in the penalty phase
– an expert who testified about Dixon’s behavior in prison and
the ability of the prison system to manage him.
assuming that the testimony of Dixon’s expert was accurate, we
give it little mitigating weight, as prisoners are expected to
See State v. Pandeli, 215 Ariz. 514, 533 ¶ 82,
161 P.3d 557, 576 (2007).
After reviewing the entire record, we
substantial to call for leniency.
We therefore affirm the death
conviction and death sentence.
Especial mental cruelty alone establishes the A.R.S. § 13751(F)(6) aggravator. Gallardo, 225 Ariz. at 565 ¶ 16, 242 P.3d
Because we find mental cruelty, we need not determine
whether the murder was also either especially physically cruel
or heinous. Id. at 265 ¶ 16, 242 P.3d at 164.
Andrew D. Hurwitz, Vice Chief Justice
Rebecca White Berch, Chief Justice
W. Scott Bales, Justice
A. John Pelander, Justice
Robert M. Brutinel, Justice
1. The fact-finder in capital cases must be able to
consider all relevant mitigating evidence in deciding
whether to give the death penalty. See Woodson v.
North Carolina, 428 U.S. 280, 304 96 S. Ct. 2978
(1976). The trial court’s failure to allow the jury to
consider and give effect to all mitigating evidence in
this case by limiting its consideration to that proven
by a preponderance of the evidence is unconstitutional
under the Eighth and Fourteenth Amendments. State v.
McGill, 213 Ariz. 147, 161, ¶ 59, 140 P.3d 930, 944
(2006); see also State v. Medina, 193 Ariz. 504, 514–
15, ¶ 43, 975 P.2d 94, 104–05 (1999).
2. Arizona’s death penalty law unconstitutionally
fails to require the cumulative consideration of
multiple mitigating factors or require that the jury
make specific findings as to each mitigating factor.
State v. Gulbrandson, 184 Ariz. 46, 69, 906 P.2d 579,
3. The (F)(6) “especially heinous, cruel or depraved”
aggravating factor is unconstitutionally vague and
overbroad because the jury does not have enough
aggravator is met. The finding of this aggravator by a
jury violates the Eighth and Fourteenth Amendments
because it does not sufficiently place limits on the
discretion of the sentencing body, the jury, which has
no “narrowing constructions” to draw from and give
“substance” to the otherwise facially vague law. State
v. Cromwell, 211 Ariz. 181, 188-90, ¶¶ 38–45, 119 P.3d
448, 455–57 (2005), and State v. Anderson, 210 Ariz.
327, 353, ¶ 114, 111 P.3d 369, 395 (2005).
4. The court also instructed the jury that they “must
not be influenced by mere sympathy or by prejudice in
determining these facts.” These instructions limited
the mitigation the jury could consider in violation of
the Fifth, Sixth, Eighth and Fourteenth Amendments and
Article 2, §§ 1, 4, 15, 23, and 24 of the Arizona
Constitution. State v. Carreon, 210 Ariz. 54, 70–71,
¶¶ 81–87, 107 P.3d 900, 916–17 (2005).
5. The death penalty is cruel and unusual under any
circumstances and violates the Eighth and Fourteenth
Amendments, and Article 2, § 15 of the Arizona
Constitution. Gregg v. Georgia, 428 U.S. 153, 186–87,
96 S. Ct. 2909 (1976); State v. Harrod, 200 Ariz. 309,
320, ¶ 59, 26 P.3d 492, 503 (2001), vacated on other
grounds, 536 U.S. 953, 122 S. Ct. 2653 (2002)(mem.);
see also Salazar, 173 Ariz. at 411, 844 P.2d at 578.
6. The death penalty is irrational and arbitrarily
imposed; it serves no purpose that is not adequately
addressed by life in prison, in violation of the
defendant’s right to due process under the Fourteenth
Amendment to the United States Constitution and
Article 2, §§ 1 and 4 of the Arizona Constitution.
State v. Smith, 203 Ariz. 75, 82, ¶¶ 35–36, 50 P.3d
825, 832 (2002), and State v. Beaty, 158 Ariz. 232,
247, 762 P.2d 519, 534 (1988).
7. There is no meaningful distinction between capital
and non-capital cases, making each crime the product
of an unconstitutionally vague statute. Salazar, 173
Ariz. at 411, 844 P.2d at 578.
exceeds any legitimate retributive aim, is without
gratuitous infliction of suffering. Gregg, 428 U.S. at
9. The prosecutor's discretion to seek the death
penalty has no standards and therefore violates the
Eighth and Fourteenth Amendments, and Article 2, §§ 1,
4, and 15 of the Arizona Constitution. State v.
Sansing, 200 Ariz. 347, 361 ¶ 46, 26 P.3d 1118, 1132
(2001), vacated on other grounds, 536 U.S. 954, 122 S.
Ct. 2654 (mem.); see also Cromwell, 211 Ariz. at 181,
§58, 119 P.3d at 459; State v. Finch, 202 Ariz. 410,
419, ¶ 50, 46 P.3d 421, 430 (2002).
10. Arizona’s death penalty is applied so as to
discriminate against poor, young, and male defendants,
particularly when the victim is a Caucasian, in
violation of Article 2, §§ 1, 4, and 13 of the Arizona
Constitution. Sansing, 200 Ariz. at 361, ¶ 46, 26 P.3d
at 1132; see also State v. Stokley, 182 Ariz. 505,
516, 898 P.2d 454, 465 (1995); State v. West, 176
Ariz. 432, 455, 862 P.2d 192, 215 (1993).
11. Proportionality review serves to identify which
cases are above the “norm” of first degree murder,
thus narrowing the class of defendants who are
eligible for the death penalty. The absence of
proportionality review of death sentences by Arizona
courts denies capital defendants due process of law
and equal protection and amounts to cruel and unusual
punishment in violation of the Fifth, Eighth, and
Fourteenth Amendments, and Article 2, § 15 of the
Arizona Constitution. Gulbrandson, 184 Ariz. at 73,
906 P.2d at 606; see also Salazar, 173 Ariz. at 417,
844 P.2d at 584.
unconstitutional because it does not require the State
to prove the death penalty is appropriate or require
the jury to find beyond a reasonable doubt that the
aggravating circumstances outweigh the accumulated
mitigating circumstances. Instead, Arizona's death
penalty statute requires defendants to prove their
lives should be spared, in violation of the Fifth,
Eighth, and Fourteenth Amendments, and Article 2, § 15
of the Arizona Constitution. State v. Fulminante, 161
Ariz. 237, 258, 778 P.2d 602, 623 (1988); see also
Carreon, 210 Ariz. at 76 ¶ 122, 107 P.3d at 922.
sufficiently channel the sentencing jury's discretion.
Aggravating circumstances should narrow the class of
persons eligible for the death penalty and reasonably
justify the imposition of a harsher penalty. A.R.S. §
13–703.01 is unconstitutional because it provides no
objective standards to guide the jury in weighing the
aggravating and mitigating circumstances and fails to
provide principled means to distinguish between those
who deserve to die or live. State v. Johnson, 212
Ariz. 425, 440, ¶69, 133 P.3d 735, 750 (2006). The
encompasses nearly anyone involved in a murder, in
violation of the Eighth and Fourteenth Amendments, and
Article 2, § 15 of the Arizona Constitution. State v.
Pandeli, 200 Ariz. 365, 382 ¶ 90, 26 P.3d 1136, 1153
(2001), vacated on other grounds, 536 U.S. 953, 122 S.
Ct. 2654 (2002)(mem.); see also State v. Greenway, 170
Ariz. 155, 164, 823 P.2d 22, 31 (1991).
14. The jury instruction that required the jury to
circumstances were “sufficiently substantial to call
for leniency” violated the Eighth Amendment. Ellison,
213 Ariz. at 139, ¶¶ 101–102, 140 P.3d at 922.
15. The failure to instruct the jury that only murders
that are “above the norm” may qualify for the death
penalty violates the Sixth, Eighth and Fourteenth
Amendments. State v. Bocharski, 218 Ariz. 476, 487–88,
¶¶ 47–50, 189 P.3d 403, 414–15 (2008).
16. The refusal to permit voir dire of prospective
jurors regarding their views on specific aggravating
and mitigating circumstances violates Appellant’s
rights under the Sixth and Fourteenth Amendments.
Johnson, 212 Ariz. at 440, ¶¶ 29–35, 133 P.3d at 750.
17. Refusing to instruct the jury or permit the
residual doubt violated Appellant’s rights under the
Sixth, Eighth and Fourteenth Amendments and Arizona
law. State v. Harrod, 218 Ariz. 268, 278–79, ¶¶ 37–39,
183 P.3d 519, 529–30 (2008); State v. Garza, 216 Ariz.
56, 70 ¶ 67, 163 P.3d 1006, 1020 (2007).
18. Execution by lethal injection is cruel and unusual
punishment in violation of the Eighth and Fourteenth
Amendments, and Article 2, § 15 of the Arizona
Constitution. State v. Van Adams, 194 Ariz. 408, 422,
¶ 55, 984 P.2d 16, 30 (1999); State v. Hinchey, 181
Ariz. 307, 315, 890 P.2d 602, 610 (1995).
19. Arizona’s current protocols and procedures for
execution by lethal injection constitute cruel and
unusual punishment in violation of the Eighth and
Fourteenth Amendments. State v. Andriano, 215 Ariz.
497, 510, ¶¶ 61–62, 161 P.3d 540, 553 (2007).
20. Arizona’s death penalty scheme unconstitutionally
requires imposition of the death penalty whenever at
least one aggravating circumstance and no mitigating
circumstances exist, in violation of the Eighth and
Fourteenth Amendments, and Article 2, Section 15 of
the Arizona Constitution. Arizona’s death penalty law
cannot constitutionally presume that death is the
appropriate default sentence. Walton v. Arizona, 497
U.S. 639, 648, 110 S. Ct. 3047 (1990); State v. Miles,
186 Ariz. 10, 19, 918 P.2d 1028, 1037 (1996).
Arizona’s death statute creates an unconstitutional
presumption of death and places an unconstitutional
“sufficiently substantial to call for leniency.” State
v. Glassel, 211 Ariz. 33, 52 ¶ 72, 116 P.3d 1193, 1212
21. The failure to provide the jury with a special
verdict on Appellant’s proffered mitigation deprived
him of his rights to not be subject to ex post facto
legislation and right to meaningful appellate review.
State v. Roseberry, 210 Ariz. 360, 373 74 & n. 12, 111
P.3d 402, 415 (2005).