Justia.com Opinion Summary: Appellant Wayne Prince, Jr. was convicted of first degree murder for the death of his step-daughter and for the attempted murder of his wife. The jury found Appellant guilty, and the trial judge sentenced Appellant to death. The sentence was vacated and remanded by the Supreme Court. Under the law in effect when Appellant killed his step-daughter, the trial judge decided whether to impose the death penalty, but a jury needed to determine whether there were mitigating circumstances from the case that might warrant life imprisonment. A penalty-phase was impaneled, and it found no mitigating factors to spare Appellant from the death sentence. The second jury sentenced Appellant to death. Appellant appealed, citing among other issues that the second jury’s sentence gave the State a second chance to seek a death sentence thus violating the ex post facto clauses of the U.S. and Arizona Constitutions. Upon re-review, the Supreme Court was not persuaded by Appellant’s ex post facto argument, and affirmed the trial court’s death sentence.
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<![CDATA[
SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA,
)
)
Appellee, )
)
v.
)
)
WAYNE BENOIT PRINCE,
)
)
Appellant. )
)
__________________________________)
Arizona Supreme Court
No. CR-09-0019-AP
Maricopa County
Superior Court
No. CR1998-004885
O P I N I O N
Appeal from the Superior Court in Maricopa County
The Honorable Sally Schneider Duncan, Judge
AFFIRMED
________________________________________________________________
THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL
By
Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Melissa A. Parham, Assistant Attorney General
Attorneys for State of Arizona
Phoenix
SHARMILA ROY, ATTORNEY AT LAW
Laveen
By
Sharmila Roy
Attorney for Wayne Benoit Prince
________________________________________________________________
P E L A N D E R, Justice
¶1
Wayne Benoit Prince, Jr. was convicted of first degree
murder of his stepdaughter and attempted first degree murder of
his wife.
He was sentenced to death for the murder and to a
prison term for the attempt conviction.
We have jurisdiction
over this automatic appeal under Article 6, Section 5(3) of the
Arizona
Constitution
and
A.R.S.
1
§§
13-4031
and
13-4033(A)(1)
(2010).1
I.
¶2
FACTUAL AND PROCEDURAL BACKGROUND
The pertinent facts are set forth in our first opinion
in this case, State v. Prince (Prince I), 204 Ariz. 156, 157-58
¶¶ 2-3, 61 P.3d 450, 451-52 (2003).
a
heated
dispute
with
his
wife,
In brief, Prince engaged in
Christine,
beating
her
and
repeatedly threatening to kill her and her two children; he
ultimately shot and killed his stepdaughter, Cassandra, and then
shot and severely injured Christine.
¶3
A jury found Prince guilty of first degree murder and
attempted murder.
The trial judge sentenced him to death for
the murder of Cassandra and twenty-one years in prison for the
attempted murder of Christine.
We affirmed both convictions and
the sentence for the attempted murder conviction, Prince I, 204
Ariz. at 161 ¶ 28, 61 P.3d at 455, but in a supplemental opinion
vacated
the
death
sentence
and
remanded
the
case
for
resentencing pursuant to Ring v. Arizona (Ring II), 536 U.S. 584
(2002).
State v. Prince (Prince II), 206 Ariz. 24, 28 ¶ 15, 75
P.3d 114, 118 (2003).
¶4
During
the
aggravation
phase
of
the
ensuing
resentencing, the jurors found two aggravating circumstances:
(1) Prince committed the murder in an especially cruel manner,
1
This opinion cites the current version of statutes unless
otherwise noted.
2
A.R.S. § 13-751(F)(6), and (2) Prince was at least eighteen and
Cassandra under fifteen years of age when she was killed, § 13751(F)(9).
In the penalty phase, however, the jury could not
reach a unanimous verdict on the appropriate sentence.
¶5
In
accordance
with
A.R.S.
§
13-752(K),
a
second
penalty-phase jury was impaneled.
This jury found no mitigation
sufficiently
for
substantial
to
call
leniency
and
determined
that Prince be sentenced to death.
II.
ISSUES ON APPEAL
A.
Challenges to Second Penalty Jury Process
1.
Ex Post Facto Violation
¶6
Under
the
law
in
effect
when
Prince
murdered
Cassandra, the judge decided whether to impose a death sentence
and resolved any doubt as to the ultimate sentence in favor of
life imprisonment.
See former A.R.S. § 13-703(E) (1997).
In
contrast, § 13-752(K) provides that if the jury cannot reach a
verdict at the first penalty phase, “the court shall dismiss the
jury and shall impanel a new jury.”
Prince claims § 13-752(K)
violates the ex post facto clauses of both the United States and
Arizona Constitutions by giving the state a second chance to
seek a death sentence, which could not occur under the law in
effect at the time of the murder.
¶7
We rejected an identical ex post facto argument in
State v. Cropper, 223 Ariz. 522, 526 ¶ 11, 225 P.3d 579, 583
3
(2010).
Prince acknowledges that decision but claims Cropper
violates the spirit of Stogner v. California, 539 U.S. 607, 611
(2003), in which the Supreme Court struck, on ex post facto
grounds,
child
a
sex
California
crimes
limitations.
statute
after
Prince
authorizing
the
expiration
analogizes
his
the
prosecution
of
the
situation
of
statute
to
of
Stogner,
claiming former § 13-703(E) created “a statute of limitations
regarding the death penalty:
once a particular sentencer had
doubts about the propriety of the death penalty, the limitations
period expired.”
¶8
The statute in Stogner created new criminal liability
when none otherwise existed by resurrecting crimes after their
limitation periods had expired.
second
jury
sentence
when
creates
the
no
first
new
539 U.S. at 613.
cannot
liability
tantamount to an acquittal.
Impaneling a
unanimously
unless
a
agree
hung
on
jury
a
is
Yeager v. United States, 129 S. Ct.
2360, 2366 (2009), rejected that characterization in the guilt
phase for double jeopardy purposes, and Cropper appropriately
extended Yeager’s reasoning to the penalty phase for sentencing
purposes.
judges.
judge,
Moreover,
no
analogue
to
a
hung
jury
exists
for
See Cropper, 223 Ariz. at 526 ¶ 11, 225 P.3d at 583 (“A
unlike
decision[,]”
a
and
jury,
“[a]
cannot
jury’s
‘deadlock’
decision
to
on
acquit
a
sentencing
a
differs from a jury’s failure to reach a decision.”).
4
defendant
Because
Prince offers no other compelling reason to revisit Cropper, we
reject his ex post facto claim.
2.
Vagueness of § 13-752(K)
¶9
Prince argues § 13-752(K) is unconstitutionally vague
because
it
does
not
establish
procedures
governing
the
admission, to a new jury during the second penalty phase, of
evidence
of
the
aggravating
factors
previously
found
by
the
aggravation-phase jury.
¶10
Before commencing the second penalty phase, the trial
court ruled that it would inform the new jury only of Prince’s
first degree murder conviction and of the descriptive titles and
definitions of the two aggravating circumstances found by the
aggravation-phase jury.
from
presenting
any
The judge thus precluded either side
evidence
relating
to
guilt
or
the
aggravating circumstances.
¶11
The
court
of
appeals
accepted
jurisdiction
of
the
State’s subsequent special action and vacated the trial court’s
order,
ruling
that
the
facts
of
the
crime
and
aggravating
factors are relevant to determining whether there is mitigation
sufficiently substantial to call for leniency.
State ex rel.
Thomas v. Duncan (Prince), 1 CA-SA 08-0042, 2008 WL 4501925, at
*4 ¶ 15 (Ariz. App. May 6, 2008) (mem. decision).
Prince’s petition for review.
We denied
State ex rel. Thomas v. Prince,
219 Ariz. 127, 194 P.3d 394 (2008).
5
¶12
The State claims Prince is now barred from challenging
the constitutionality of § 13-752 because the court of appeals’
decision is the law of the case.
But we are not precluded from
addressing issues in a direct mandatory appeal simply because we
declined to review in the same case an interlocutory court of
appeals’ decision.
Our prior “denial of review does not mean we
accepted the [c]ourt of [a]ppeals’ legal analysis or conclusion”
and “has no precedential value.”
144
Ariz.
291,
297
n.5,
Calvert v. Farmers Ins. Co.,
697
P.2d
684,
690
n.5
(1985).
Consequently, the law of the case doctrine is inapplicable, and
we thus address Prince’s argument on the merits.
¶13
During the penalty phase, “the defendant and the state
may present any evidence that is relevant to the determination
of whether there is mitigation that is sufficiently substantial
to call for leniency.”
state
may
present
any
A.R.S. § 13-752(G).2
evidence
that
defendant should not be shown leniency.”
“shall
consider
as
[a]
mitigating
Additionally, “the
demonstrates
Id.
that
the
The penalty jury
circumstance[]
any
factors
proffered by the defendant or the state that are relevant in
determining
whether
to
impose
a
sentence
less
than
death,
2
Our rules of criminal procedure prescribe a similar
standard.
“The defense shall offer evidence in support of
mitigation” and “[t]he state may . . . offer any evidence
relevant to mitigation.”
Ariz. R. Crim. P. 19.1(d)(4)-(5).
A
defendant may also “offer evidence in rebuttal” of the state’s
proffered evidence. Ariz. R. Crim. P. 19.1(d)(6).
6
including any aspect of the defendant’s character, propensities
or record and any of the circumstances of the offense.”
§ 13-751(G).
A.R.S.
Any evidence admitted during the aggravation phase
is deemed admitted at the penalty phase, as long as the penalty
jury is the same jury that tried aggravation.
See A.R.S. § 13-
752(I).
¶14
As noted earlier, if the jury is “unable to reach a
verdict” at the first penalty phase, “the court shall dismiss
the jury and shall impanel a new jury.”
A.R.S. § 13-752(K).
This new jury may not retry “the defendant’s guilt or the issue
regarding any of the aggravating circumstances that the first
jury found by unanimous verdict to be proved or not proved.”
Id.
¶15
Although
no
provision
comparable
to
§
13-752(I)
addresses the admissibility of aggravation-phase evidence during
a second penalty phase, the statutes are not vague or wholly
silent on the issue.
Section 13-752(G) is framed broadly and
generally
governs
the
admission
phase.
Significantly,
that
criterion for admissibility:
of
evidence
statute
at
the
prescribes
penalty
only
one
relevance “to the determination of
whether there is mitigation that is sufficiently substantial to
call for leniency.”
A.R.S. § 13-752(G).
Subject to overarching
due process considerations, see State v. Pandeli, 215 Ariz. 514,
527-28 ¶ 43, 161 P.3d 557, 570-71 (2007), any evidence that
7
meets
§
13-752(G)’s
criterion
is
admissible,
regardless
of
whether the evidence was admissible at a prior stage of the
trial.
¶16
Importantly, § 13-752(G) uses the phrase “mitigation
that is sufficiently substantial to call for leniency,” rather
than
simply
“mitigating
factors.”
The
former
phrase
contemplates liberal admission of any evidence relevant not only
to the existence of mitigating factors, but also to the jury’s
ultimate
determination
leniency
in
of
sentencing.
whether
Thus,
the
those
factors
statute’s
call
for
standard
for
admissibility is framed in terms of the penalty-phase jury’s
duty to “assess whether to impose the death penalty based upon
each juror’s individual, qualitative evaluation of the facts of
the
case,
the
severity
of
the
aggravating
quality of any mitigating evidence.”
factors,
and
the
State ex rel. Thomas v.
Granville (Baldwin), 211 Ariz. 468, 472 ¶ 17, 123 P.3d 662,
666 (2005).
Jurors cannot perform that duty without knowing
relevant facts about the circumstances of the murder and the
aggravating factors, making aggravation-phase evidence directly
relevant to whether the mitigation is “sufficiently substantial
to call for leniency.”
¶17
Similarly, by also allowing the state to “present any
evidence
that
demonstrates
that
the
defendant
should
not
be
shown leniency,” § 13-752(G) permits any evidence probative on
8
that
issue,
standard
is
subject
not
only
to
constrained
due
by
process
the
limitations.
existence
or
That
nature
of
“mitigating factors,” or limited to evidence that was relevant
or admissible at a prior stage of the trial.
¶18
and
Consequently, during a second penalty phase, the state
the
defendant
aggravating
752(G)’s
control
may
introduce
circumstances
general
which
previously
relevance
facts
evidence
are
found,
standard.
presented
with
the
pertaining
subject
parties
the
jury
trial
judge
the
§
13-
to
The
to
to
largely
about
acting
the
aggravating
circumstances,
as
a
gatekeeper.
Cf. State v. Nichols (Nordstrom), 219 Ariz. 170 174
¶ 12, 195 P.3d 207, 211 (App. 2008) (stating “the legislature
has placed no express limits on what evidence a defendant may
present” during the aggravation phase, except those limitations
imposed by “the rules of evidence” (citing former A.R.S. § 13703(B), now A.R.S. § 13-751(B))).
¶19
Our cases support this conclusion.
In State v. Garza,
we affirmed the trial court’s admission of a 911 tape during the
penalty phase, noting that it was relevant because the penalty
jury
“may
consider
the
circumstances
evaluation of mitigation.”
1006, 1018 (2007).
of
the
crime
in
its
216 Ariz. 56, 68 ¶ 57, 163 P.3d
And in State v. Harrod, we held that A.R.S.
§ 13-751(G) does not permit residual doubt evidence during the
penalty
phase,
but
stated
that
9
the
phrase
“any
of
the
circumstances of the offense” in § 13-751(G) refers “to such
factors, among others, as [] how a defendant committed first
degree murder.”
218 Ariz. 268, 280 ¶ 43, 183 P.3d 519, 531
(2008).
¶20
Our view of § 13-752(G) also comports with federal
constitutional principles.
At the penalty phase, the jury must
make “a reasoned, individualized sentencing determination based
on
a
death-eligible
defendant’s
record,
personal
characteristics, and the circumstances of his crime.”
Kansas v.
Marsh, 548 U.S. 163, 174 (2006) (citing Gregg v. Georgia, 428
U.S.
153,
189
(1976)
(Stewart,
J.,
plurality
opinion)).
Construing § 13-752(G) as generally authorizing the admission of
evidence
concerning
the
circumstances
of
the
crime
and
the
aggravating factors thus preserves the entire statutory scheme’s
constitutionality.
413,
416,
466
See Kilpatrick v. Superior Court, 105 Ariz.
P.2d
18,
21
(1970).
Because
the
statutes
governing the second penalty phase provide sufficient guidance,
we reject Prince’s void-for-vagueness argument.
3.
Constitutionality of Trifurcated Jury Proceeding
¶21
Prince challenges the trifurcation of his trial, in
which separate juries tried the guilt, aggravation, and penalty
phases.
A defendant, however, is not entitled to have the same
jury render verdicts in each phase of a capital trial.
State v.
Anderson, 210 Ariz. 327, 348 ¶ 85, 111 P.3d 369, 390 (2005).
10
Consequently, the use of different guilt and sentencing-phase
juries does not violate a defendant’s rights.
Anderson
in
State
v.
Moore,
upholding
the
juries in the aggravation and penalty phases.
Id.
use
We extended
of
different
222 Ariz. 1, 17
¶ 90, 213 P.3d 150, 166 (2009).3
¶22
Prince nonetheless argues that the final penalty-phase
jury in a trifurcated proceeding might not have heard all of the
relevant circumstances of the crime.
§
13-752(K)
does
not
adequately
He repeats his claim that
guide
judges
on
the
admissibility of aggravation-phase evidence during the second
penalty phase.
Additionally, even if the same witnesses testify
in each proceeding, Prince contends a witness’s demeanor and
words might change, altering how each jury perceives the same
testimony.
¶23
As explained earlier, however, § 13-752(G)’s general
relevance standard governs the admissibility of evidence during
a second penalty phase.
If a defendant believes a trial judge
incorrectly excluded admissible evidence or admitted excludable
evidence at any phase, he has a remedy on appeal.
each
jury
in
a
trifurcated
proceeding
And even if
perceives
the
same
3
In
Moore,
the
penalty-phase
jury
also
aggravating factor because the first jury failed
verdict on that factor. 222 Ariz. at 6, ¶¶ 13-14,
155. Thus, unlike this case, Moore did not involve
trifurcated proceeding.
11
retried
an
to reach a
213 P.3d at
a completely
testimony differently, that does not invariably disadvantage,
and in some cases could greatly benefit, a defendant.
¶24
Most
importantly,
relevant
evidence
that
was
Prince
excluded
does
not
to
the
from
point
second
penalty
jury’s consideration because of the trifurcated proceeding.
any
As
in Moore, “[s]ubstantially the same evidence was introduced at
the second sentencing trial as at the . . . first sentencing
trial.”
222 Ariz. at 17 ¶ 90, 213 P.3d at 166; see Anderson,
210 Ariz. at 348 ¶ 85, 111 P.3d at 390 (noting “the aggravation
and penalty phases were essentially a full-blown re-presentation
of the entire case”).
¶25
The federal constitution requires only that the jury
“render
based
a
on
reasoned,
a
individualized
death-eligible
sentencing
defendant’s
determination
record,
personal
characteristics, and the circumstances of his crime.”
548 U.S. at 174.
Marsh,
As long as a state’s procedures satisfy this
requirement, the state “enjoys a range of discretion in imposing
the death penalty.”
under
§
reliable
13-752(K)
Id.
Nothing about a trifurcated proceeding
deprives
sentencing
a
defendant
determination.
of
Thus,
a
fair
the
trial
or
trifurcated
proceeding did not violate Prince’s constitutional rights.
B.
Aggravation Phase
1.
Exclusion of Jurors for Cause
¶26
Prince argues that the trial court improperly excluded
12
four jurors for cause, three because of their reservations about
the death penalty and one because of his out-of-state felony
conviction.
We review a trial court’s strikes of potential
jurors for abuse of discretion.
State v. Jones, 197 Ariz. 290,
302 ¶ 24, 4 P.3d 345, 357 (2000).
¶27
Prince
contends
that
jurors
18,
32,
and
66
were
improperly excluded because of their views on the death penalty.
The court may not strike a juror because he or she “voiced
general
objections
conscientious
or
to
the
religious
death
scruples
penalty
against
or
its
expressed
infliction.”
Witherspoon v. Illinois, 391 U.S. 510, 522 (1968); accord State
v. Lynch, 225 Ariz. 27, 34-35 ¶ 26, 234 P.3d 595, 602-03 (2010).
The judge, however, may strike a juror whose views about capital
punishment
“would
prevent
or
substantially
impair
the
performance of his duties as a juror in accordance with his
instructions and his oath.”
Wainwright v. Witt, 469 U.S. 412,
433 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45 (1980)).
The
juror’s
clarity.’”
views
“need
not
be
proven
with
‘unmistakable
State v. Ellison, 213 Ariz. 116, 137 ¶ 89, 140 P.3d
899, 920 (2006) (quoting Wainwright, 469 U.S. at 424).
Rather,
in assessing whether to strike a juror, the judge must consider
“the entirety of [the juror’s] answers.”
Lynch, 225 Ariz. at 35
¶ 28, 234 P.3d at 603.
¶28
On his written questionnaire, Juror 18 stated he did
13
not oppose the death penalty and indicated he did not think
capital punishment was imposed often enough.
however,
the
juror
changed
his
position,
During voir dire,
stating,
“I
don’t
believe anybody has the right to put another person to death,”
and
“I’m
apart.”
still
wavering
on
it
right
now.
It’s
tearing
me
Although the juror did not believe he could sentence
anyone except a terrorist to death, he also claimed he could
follow the jury instructions.
But later, the juror twice stated
he did not think he could impose a death sentence.
¶29
The trial court did not err in striking Juror 18.
We
have upheld strikes for cause when, as here, a juror expressed
clear reservations about the death penalty.
E.g., Lynch, 225
Ariz. at 35 ¶¶ 27-28, 234 P.3d at 603; State v. Speer, 221 Ariz.
449, 455-56 ¶¶ 27-28, 212 P.3d 787, 793-94 (2009).
And we have
upheld strikes when a juror is conflicted about imposing the
death penalty, as Juror 18 was.
State v. Garcia, 224 Ariz. 1, 9
¶¶ 18-19, 226 P.3d 370, 378 (2010); Ellison, 213 Ariz. at 137-38
¶ 91, 140 P.3d at 920-21.
Although Juror 18 said he could vote
to put a terrorist to death, a juror need not be against the
death penalty in every possible case to warrant dismissal for
cause.
See Wainwright, 469 U.S. at 421; Lynch, 225 Ariz. at 35
¶¶ 27-28, 234 P.3d at 603.
¶30
Juror
32
stated
that
he
opposed
the
death
penalty
because of the possibility of putting an innocent person to
14
death, but indicated he could consider death in the case of a
serial killer.
Despite the juror’s claims that he could follow
the court’s instructions, he also said it would be “tough” for
him to set aside his feelings about capital punishment.
And
after the judge asked Juror 32 if he could consider the death
penalty as an option, he said it would be “hard” for him to do
so.
¶31
As
with
Juror
18,
Juror
32
repeatedly
expressed
reservations about his ability to consider the death penalty,
despite
his
instructions.
statement
that
he
could
follow
the
court’s
The trial court did not abuse its discretion by
striking Juror 32.
¶32
On the written questionnaire, Juror 66 stated that she
opposed the death penalty except for crimes involving children
and “some well-thought-out crimes.”
During voir dire, defense
counsel asked the juror if she could consider capital punishment
for the murder of a thirteen-year-old child, to which the juror
responded, “That’s a hard one.
the death penalty.”
Basically, I don’t believe in
The juror then indicated she could return a
death sentence, but it would be a “hard decision.”
¶33
When the prosecutor probed the juror’s definition of a
“well-thought-out crime,” the following exchange occurred:
[Prosecutor]: . . . Question 57, describe your views
on the death penalty.
“Life imprisonment only, not
death except in some well-thought-out crimes.” I mean
15
this is a case where the defendant has been found
guilty, having an argument with his wife, shooting his
stepdaughter and killing her and then shooting the
wife.
Would that be your definition of a wellthought-out crime?
[Juror 66]: That was an argument?
[Prosecutor]: They were arguing first for a lengthy
period of time. Then he had a gun.
[Juror 66]: No.
[Prosecutor]: What would you mean by that when you
said a well-thought-out crime?
[Juror 66]: Well, something that was done, thought out
for months in advance, something that when the time
was right.
[Prosecutor]: So there’s really advance planning?
[Juror 66]: Yes.
Moments later, the juror acknowledged that her views on the
death penalty would substantially impair her performance as a
juror.
When the trial court probed the inconsistency in her
answers, Juror 66 claimed she could consider a death sentence,
but then told the prosecutor, “I really don’t think I could vote
for the death penalty.”
¶34
When a juror “equivocat[es] about whether [she] would
take [her] personal biases in the jury room[,]” the judge can
reasonably conclude that her views about the death penalty will
substantially impair her ability to carry out her duties as a
juror.
Ellison,
213
(quotation omitted).
Ariz.
at
137
¶
89,
140
P.3d
at
920
Viewing Juror 66’s answers as a whole, we
16
cannot say the trial court abused its discretion by striking
her.
¶35
Prince
also
contends
the
prosecutor
asked
improper
stakeout questions during his inquiry into Juror 66’s definition
of a “well-thought-out” crime.
Stakeout questions “ask a juror
to speculate or precommit to how that juror might vote based on
any particular facts.”
United States v. Fell, 372 F. Supp. 2d
766, 770 (D. Vt. 2005) (quotation omitted) (noting that “not all
case-specific questions are stake-out questions”).
Here, the
prosecutor merely sought to determine whether Prince’s murder
fit the juror’s definition of a “well-thought-out crime,” and
thus
determine
penalty.
whether
that
juror
could
consider
the
death
That questioning did not seek to precommit the juror
to a specific result.
See Garcia, 224 Ariz. at 9 ¶ 16, 226 P.3d
at 378 (finding no error when prosecutor asked jurors “if they
could consider imposing a death sentence if a defendant had not
actually shot the victim” because the questions asked jurors “if
they could consider the death penalty in circumstances in which
it is permitted under Arizona law”).
And even if it did, Prince
does not argue that the questioning constituted prosecutorial
misconduct or precluded the trial judge from striking Juror 66
for cause.
¶36
based
The trial judge excluded a fourth juror, Juror 62,
on
his
felony
conviction
17
in
Oklahoma.
That
juror
completed an eighteen-month prison sentence and said he was not
under the continuing supervision of the Oklahoma courts.
not
know,
however,
if
his
civil
rights
had
been
He did
restored.
Absent any such showing, the judge found Juror 62 ineligible for
jury service.
¶37
To qualify for jury service in Arizona, a person must
“[n]ever have been convicted of a felony, unless the juror’s
civil
rights
have
been
restored.”
A.R.S
§
21-201(3).
Similarly, under Title 13, A.R.S., “[a] conviction for a felony”
suspends various civil rights, including “[t]he right to serve
as a juror.”
¶38
A.R.S. § 13-904(A)(3).
Prince
argues
that
conviction
of
felony does not bar jury service in Arizona.
an
out-of-state
Section 13-105(18)
defines felony as “an offense for which a sentence to a term of
imprisonment
in
the
custody
of
the
state
department
corrections is authorized by any law of this state.”
claims
that
§
13-105’s
definition
of
“felony”
as
of
Prince
requiring
custody in Arizona applies to §§ 13-904 and 21-201 because both
statutes address the subject of juror disqualification based on
felony convictions.
“this
title,”
But § 13-105 limits its application to
making
Title
13’s
definition
of
felony
inapplicable to a Title 21 statute.
¶39
jury
Section 21-201 sets forth general qualifications for
service
and
reflects
the
18
policy
that
jurors
should
be
“citizens who uphold and obey the law.”
State v. Bojorquez, 111
Ariz. 549, 555, 535 P.2d 6, 12 (1975).
Applying Title 13’s
definition of felony to § 21-201 would disqualify from jury
service only those convicted of a felony under Arizona law and
exempt those convicted of a felony in federal court or another
state, which would undermine the policy behind § 21-201(3).
¶40
A
juror
convicted
of
an
out-of-state
felony
whose
civil rights have not been restored is disqualified from jury
service by § 21-201(3).
Because Juror 62 was a convicted felon
who did not aver that his civil rights had been restored, the
trial court did not abuse its discretion in striking him.
2.
Testimony of Gun Expert
¶41
Prince argues that reading a transcript of the State’s
gun expert’s guilt-phase testimony to the aggravation-phase jury
violated his Confrontation Clause rights.
questions
relating
to
the
murder
After a juror asked
weapon,
defense
counsel
informed the court that those questions could be answered by the
gun
expert.
According
to
defense
counsel,
the
parties
originally planned to stipulate to the reading of that witness’s
prior testimony.
counsel
did
not
Although no such stipulation occurred, defense
object
when
the
testimony was read to the jury.
claim for fundamental error.
gun
expert’s
guilt-phase
We therefore review Prince’s
See State v. Henderson, 210 Ariz.
561, 567 ¶ 19, 115 P.3d 601, 607 (2005).
19
¶42
A
defendant
has
a
right
to
confront
testimonial
hearsay evidence introduced to establish an aggravating factor.
State v. Tucker, 215 Ariz. 298, 315 ¶ 61, 160 P.3d 177, 194
(2007).
Prior
trial
testimony
is
hearsay,
Ariz.
R.
Evid.
804(b)(1), but admissible if (1) the declarant is unavailable,
and
(2)
“[t]he
party
against
whom
the
former
testimony
is
offered . . . had the right and opportunity to cross-examine the
declarant with an interest and motive similar to that which the
party now has.”
Ariz. R. Crim. P. 19.3(c)(1); accord State v.
Armstrong, 218 Ariz. 451, 460 ¶ 32, 189 P.3d 378, 387 (2008)
(citing Crawford v. Washington, 541 U.S. 36, 59 (2004)).
¶43
Even
if
reading
Confrontation
Clause
cannot
prejudice.
show
(an
the
issue
transcript
we
The
gun
need
not
expert’s
violated
decide),
the
Prince
testimony
was
irrelevant to the (F)(9) aggravating factor (the ages of the
defendant and the victim) and did not directly relate to the
core
(F)(6)
issue:
whether
Cassandra
physical pain or mental anguish.
Christine’s
credibility
by
consciously
suffered
Although the expert bolstered
corroborating
her
testimony
that
Prince fired the gun through the pillow, two other witnesses
also had testified to that fact.
¶44
Prince
argues
he
was
prejudiced
because
the
gun-
expert’s testimony created confusion about whether Prince had
intended to commit suicide after he fled to a vacant apartment.
20
He now claims that issue was crucial to whether he could have
reasonably
foreseen
(F)(6) aggravator.4
Cassandra’s
suffering,
an
element
of
the
Even if the expert’s testimony was relevant
to this issue, Prince cannot show prejudice because he did not
place his mental state at issue during the aggravation phase.
Neither he nor any other witness testified about his state of
mind
on
the
night
of
the
shooting.
Prince
also
did
not
introduce any expert testimony that his mental state made him
unable to reasonably foresee Cassandra’s mental anguish.
Cf.
State v. Moody, 208 Ariz. 424, 472 ¶ 226, 94 P.3d 1119, 1167
(2004) (holding that the (F)(6) aggravator was not established
beyond a reasonable doubt when “evidence was presented that [the
defendant]
(emphasis
was
in
added).
a
‘dissociated
Therefore,
state’
Prince
due
has
to
psychosis”)
not
established
fundamental error.
3.
¶45
Waiver of Right to Testify
Prince argues that the trial judge’s failure to obtain
an on-the-record waiver of his right to testify during both the
4
In the vacant apartment to which Prince fled after the
shootings, police found the murder weapon, an expended shell
casing, a six-inch piece of wire, and three damaged rounds of
ammunition.
The gun expert testified that the gun failed to
feed on several occasions during his test fires, but that did
not damage the bullets, unlike the bullets found in the vacant
unit.
According to Prince, his inability to cross-examine the
expert in the aggravation phase limited his ability to contend
that he was, in fact, suicidal.
21
aggravation
rights.
and
penalty
phases
violated
his
constitutional
A trial court need not inquire on the record whether a
defendant
has
waived
his
right
to
testify.
State
v.
Gulbrandson, 184 Ariz. 46, 64-65, 906 P.2d 579, 597-98 (1995);
State v. Allie, 147 Ariz. 320, 328, 710 P.2d 430, 438 (1985).
“[I]n an appropriate case,” however, “it may be prudent for a
trial court” to do so.
Gulbrandson, 184 Ariz. at 64-65, 906
P.2d at 597-98 (declining to require an on-the-record waiver
when defendant stated to trial court “he wanted to testify at
the trial, but his lawyer told him it was too late”).
¶46
Prince
because
of
his
argues
low
an
IQ
on-the-record
and
his
waiver
multiple
was
motions
required
to
change
counsel, which he claims indicated a strained attorney-client
relationship.
But throughout the trial, Prince never hesitated
to assert his legal rights or make objections.
filed
pro
se
motions
to
change
materials from his lawyers, and
State
Bar
against
one
of
his
counsel,
He frequently
requested
discovery
filed an “inquiry” with the
lawyers.
In
addition,
Prince
testified during the guilt phase, and nothing in the record
suggests he was led to believe he could not also testify in the
later phases.
Had Prince wanted to testify in the aggravation
or penalty phase, he could have expressed that desire, just as
he made his other complaints known to the court.
Tillery,
107
Ariz.
34,
37,
481
22
P.2d
271,
274
Cf. State v.
(1971)
(“Were
defendant’s desires to testify in his own behalf as strong and
unrelent[ing] as he now claims they were, he would not have
maintained his silence throughout the entire trial.
very
easily
have
directed
his
request
to
the
He might
court
or
made
motion to have his attorney removed.”).
¶47
Because Prince did not invoke his right to testify, he
“cannot now be heard to complain.”
P.2d at 438.
4.
Allie, 147 Ariz. at 328, 710
The trial court did not err.
Constitutionality of (F)(6) Jury Instruction
¶48
Prince argues that the jury instruction on especial
cruelty, A.R.S. § 13-751(F)(6), was unconstitutionally vague and
failed
to
Because
properly
he
did
fundamental error.
channel
not
argue
the
jury’s
that
sentencing
below,
Prince
discretion.
must
show
State v. Gomez, 211 Ariz. 494, 499 ¶ 20, 123
P.3d 1131, 1136 (2005).
¶49
“may
Although the (F)(6) aggravator is facially vague, it
be
remedied
with
appropriate
narrowing
instructions.”
Tucker, 215 Ariz. at 310 ¶ 28, 160 P.3d at 189; accord State v.
Hargrave, 225 Ariz. 1, 13 ¶ 43, 234 P.3d 569, 581 (2010).
The
instructions must “sufficiently narrow[]” the statutory terms,
Tucker, 215 Ariz. at 310 ¶ 28, 160 P.3d at 189, such that the
sentencer has “sufficient guidance.”
Walton v. Arizona, 497
U.S. 639, 655 (1990), overruled on other grounds by Ring II, 536
U.S. at 589.
23
¶50
The
trial
judge
instructed
the
jury
on
especial
cruelty as follows:
Concerning this aggravating circumstance, all firstdegree murders are to some extent . . . cruel . . . .
However, this aggravating circumstance cannot be found
to exist unless the State has proven beyond a
reasonable doubt that the murder was “especially”
cruel . . . . “Especially” means “unusually great or
significant.”
In other words, the murder must have
been committed in such a way as to set the Defendant’s
acts apart from the norm of first-degree murder.
. . . .
The term “cruel” focuses on the victim’s mental
anguish. To find that the murder was committed in an
“especially” cruel manner you must find that the
victim consciously suffered extreme mental distress or
anguish prior to death.
A murder is “especially”
cruel when there has been the infliction of mental
suffering in an “especially” wanton and insensitive or
vindictive manner. The Defendant must know or should
have known that the victim would suffer anguish.
A finding of “cruelty” requires conclusive evidence
that the victim was conscious during the infliction of
the violence and experienced significant uncertainty
as to his or her ultimate fate.
The passage of time
is not determinative.
¶51
Prince
claims
that
the
reference
to
“the
norm
of
first-degree murder” is vague because juries have no experience
with murder and therefore no context in which to understand the
“norm” of first degree murder.
Although the instruction’s “norm
of first-degree murder” language is often urged by defendants,
who can certainly make that point in closing arguments, it is
neither
necessary
instruction.
nor
particularly
helpful
in
a
jury
See State v. Bocharski, 218 Ariz. 476, 487-88
24
¶¶ 47-50, 189 P.3d 403, 414-15 (2008).
But we have repeatedly
upheld jury instructions using that phrase, and its inclusion in
the (F)(6) instruction here was not fundamental error.
State v.
McCray, 218 Ariz. 252, 258-59 ¶ 26 n.3, 183 P.3d 503, 509-10
(2008); State v. Andriano, 215 Ariz. 497, 506 ¶¶ 42-43, 161 P.3d
540, 549 (2007); Tucker, 215 Ariz. at 310-11 ¶¶ 30, 33, 160 P.3d
at
189-90.
Prince
also
argues
that
the
phrase
“especially
wanton and insensitive” is vague, but we have approved jury
instructions using that language as well.
State v. Chappell,
225 Ariz. 229, 237-38 ¶ 27 & n.6, 236 P.3d 1176, 1184-85 & n.6
(2010); Anderson, 210 Ariz. at 352-53 ¶ 111 & n.19, 111 P.3d at
394-95 & n.19.
Viewed as a whole, the instruction sufficiently
narrowed the (F)(6) aggravator and, therefore, Prince has not
established fundamental error.
¶52
Prince
next
argues
that
the
trial
court
erred
by
denying his request to give the following instruction:
The passage of time is not determinative, but the
length of time during which the victim contemplated
her fate affects whether the mental anguish is
sufficient to bring the first degree murder of the
victim within that group of first degree murders that
is especially cruel.
Because most murders involve some period during which the victim
experiences fear, Prince claims, his requested instruction was
necessary to channel the jury’s discretion when, as here, the
events occurred within a short time.
25
¶53
The judge did not err by denying Prince’s requested
instruction.
We have repeatedly approved (F)(6) instructions
that
contain
do
not
the
language
Prince
requested.
E.g.,
Tucker, 215 Ariz. at 310-11 ¶¶ 30-31, 160 P.3d at 189-90; State
v. Cromwell, 211 Ariz. 181, 189 ¶ 42, 119 P.3d 448, 456 (2005);
Anderson, 210 Ariz. at 352-53 ¶¶ 111, 113 & n.19, 111 P.3d at
394-95 & n.19.
The instruction in Anderson contained only the
sentence “The passage of time is not determinative,” the same
instruction given here.
at 394 n.19.
for
210 Ariz. at 352 ¶ 111 n.19, 111 P.3d
Although the passage of time is a relevant factor
evaluating
the
victim’s
uncertainty
about
her
fate,
see
State v. Snelling, 225 Ariz. 182, 188 ¶ 27, 236 P.3d 409, 415
(2010), we have never required an instruction to this effect.
More
importantly,
uncertainty
necessary
about
element
although
proof
her
fate
may
to
establish
experienced mental pain.
that
be
a
victim
sufficient,
that
the
it
victim
experienced
is
not
a
consciously
See Tucker, 215 Ariz. at 311 ¶ 33, 160
P.3d at 190; Ellison, 213 Ariz. at 142 ¶ 120, 140 P.3d at 925.
¶54
Notably,
the
instruction
required
the
jury
to
find
“extreme mental distress,” a phrasing that was more favorable to
Prince than our case law otherwise requires.
See Chappell, 225
Ariz. at 237-38 ¶ 27, 236 P.3d at 1184-85 (stating “the mental
or physical pain used to establish the (F)(6) aggravator” need
not be “extreme”).
The jury instructions adequately narrowed
26
the
(F)(6)
aggravator
and
properly
channeled
the
jury’s
sentencing discretion.
5.
Sleeping Juror
¶55
motion
Prince argues the trial court erroneously denied his
for
mistrial
aggravation phase.
based
on
a
juror
sleeping
during
the
When the gun expert’s guilt-phase testimony
was read to the jury, defense counsel informed the court that
Juror
16
was
asleep.
The
judge
gave
defense
counsel
an
opportunity to designate that juror as an alternate, but counsel
deferred that decision until the next day.
Defense counsel
never raised the issue again, however, and Juror 16 was among
the deliberating jurors who found the two aggravators.
During
the first penalty phase (which ended with a hung jury), this
juror fell asleep repeatedly and the parties agreed to replace
him with an alternate.
Prince then moved for a mistrial based
on the juror sleeping during the aggravation phase, which the
judge denied.
¶56
Because
Prince
failed
to
take
curative
action
to
remove Juror 16 when he had the opportunity to do so during the
aggravation phase, he must show that the trial court committed
fundamental error in denying the motion for a mistrial.
See
Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d at 607; cf. State v.
Spratt, 126 Ariz. 184, 187-88, 613 P.2d 848, 851-52 (App. 1980)
(concluding
defendant
waived
any
27
error
caused
by
a
sleeping
juror when counsel “refus[ed] to take curative action” such as
“enter[ing] into any stipulation concerning the sleeping juror”
or making a motion).
¶57
Juror misconduct warrants a new trial if “the defense
shows actual prejudice or if prejudice may be fairly presumed
from the facts.”
State v. Miller, 178 Ariz. 555, 558, 875 P.2d
788, 791 (1994) (emphasis omitted).
A juror’s “mere falling
asleep for a short time . . . does not of itself constitute a
sufficient cause for a new trial.”
Whiting v. State, 516 N.E.2d
1067, 1068 (Ind. 1987) (quotation omitted).
Nor is reversal
required when, as here, no evidence shows that the sleeping
juror “missed large portions of the trial or that the portions
missed were particularly critical.”
United States v. Freitag,
230 F.3d 1019, 1023 (7th Cir. 2000).
¶58
No
error,
fundamental
or
otherwise,
occurred
here.
Prince points to no specific prejudice that resulted from the
juror falling asleep.
Juror 16 nodded off just once during the
aggravation phase, when the gun expert’s prior testimony was
read.
Nothing indicates that the testimony was particularly
critical (see supra ¶¶ 43-44) or that Juror 16 missed large
portions of the trial.
Thus, prejudice may not be presumed, and
the trial judge did not err by denying Prince’s motion for a
mistrial.
C.
Penalty Phase
28
1.
Caldwell Violation
¶59
Prince claims that the second penalty-phase proceeding
violated Caldwell v. Mississippi, 472 U.S. 320 (1985), in two
ways.
First, he contends the penalty-phase jury abdicated its
responsibility for imposing a death sentence to the aggravationphase jury.
Because Prince did not argue this at trial, we
review for fundamental error.
¶60
A death sentence must be vacated if the sentencer was
“led
to
believe
that
the
responsibility
for
determining
appropriateness of the defendant’s death rests elsewhere.”
at 328-29.
the
Id.
We have concluded that use of different juries for
guilt and sentencing phases does not violate Caldwell as long as
the sentencing jury is not misled about its role.
E.g., State
v. Dann, 220 Ariz. 351, 360-61 ¶¶ 29-30, 207 P.3d 604, 613-14
(2009); Bocharski, 218 Ariz. at 483 ¶¶ 19-20, 189 P.3d at 410;
cf. Anderson, 210 Ariz. at 347-48 ¶¶ 81-86, 111 P.3d at 389-90
(noting a defendant has no absolute right to have the guiltphase jury also determine the sentence).
held
that
use
of
different
juries
for
Similarly, we have
the
aggravation
and
penalty phases does not violate Caldwell.
Moore, 222 Ariz. at
18
bifurcation
¶
93,
213
P.3d
at
167
(stating
the
of
the
sentencing phase into two different juries “is not substantively
different
from
the
bifurcation
Bocharski).
29
sanctioned
under”
Dann
and
¶61
Prince distinguishes Moore because the penalty-phase
jury in that case retried an aggravating factor, making it “no
different
from
purposes.
But Moore approved bifurcation of the aggravation and
penalty
phases
permissible
only
the
aggravation
and
did
if
the
aggravating factor.
not
phase
suggest
penalty-phase
jury”
that
jury
for
Caldwell
bifurcation
also
retries
is
an
Moreover, the record does not indicate that
the penalty-phase jurors were misled or confused about their
role or otherwise abdicated their responsibility for Prince’s
death sentence.
To the contrary, the judge instructed that jury
that it alone decided Prince’s fate, stating, “Your decision is
not a recommendation.
Your decision will be binding.
If your
verdict is that Mr. Prince should be sentenced to death, he will
be sentenced to death.”
That instruction “convey[s] the gravity
of the [penalty] jurors’ task.”
Hargrave, 225 Ariz. at 14 ¶ 49,
234 P.3d at 582; accord Garcia, 224 Ariz. at 17 ¶ 73, 226 P.3d
at 386.
Bifurcating the aggravation and penalty phases thus did
not violate Caldwell.
¶62
Second,
Prince
argues
the
trial
court
violated
Caldwell by refusing his request for the following instruction
before the second penalty phase:
Your individual decision is not a recommendation.
Your individual decision will be binding. If there is
unanimous agreement of individual decisions for a
sentence of death then Mr. Prince will be sentenced to
death and you must assume that he will be executed.
30
Your verdict cannot be changed by me or on appeal. No
one can change or reverse your ultimate determination
on the appropriate sentence.
¶63
In
Caldwell,
the
Supreme
Court
vacated
a
death
sentence when the prosecutor, in closing argument, told the jury
its
decision
Court.”
“[was]
automatically
472 U.S. at 325-26, 341.
reviewable
by
the
Supreme
“[T]he uncorrected suggestion
that the responsibility for any ultimate determination of death
will rest with others” violates the Eighth Amendment.
333.
Id. at
The Supreme Court, however, later made Caldwell “relevant
only to certain types of comment[s]-those that mislead the jury
as to its role in the sentencing process in a way that allows
the
jury
to
feel
less
sentencing decision.”
responsible
than
it
should
for
the
Romano v. Oklahoma, 512 U.S. 1, 9 (1994)
(quotation omitted).
¶64
Prince
only
to
State
v.
Martinez, 218 Ariz. 421, 429 ¶ 33, 189 P.3d 348, 356 (2008).
He
affirmative
acknowledges
comments
that
that
mislead
Caldwell
the
jury.
applies
See
nevertheless argues that “silence regarding appellate processes
may violate Caldwell,” and that “an affirmative statement should
be made that appellate review could lead to a reversal of the
[death] penalty only in the most unlikely circumstances” because
jurors can easily access information that could mislead them
about the appellate process.
No case, however, requires a jury
instruction that explains the intricacies or likely results of
31
the appellate process.
2.
Victim Impact Evidence
¶65
Arizona
permits
victim
impact
evidence
during
penalty phase of capital sentencing proceedings.
§ 13-752(R).
bar”
to
the
See A.R.S.
Although the Eighth Amendment “erects no per se
the
admission
of
such
evidence,
the
Fourteenth
Amendment’s Due Process Clause prohibits victim impact evidence
that
“is
so
unduly
prejudicial
fundamentally unfair.”
that
it
renders
the
trial
Payne v. Tennessee, 501 U.S. 808, 825-26
(1991) (emphasis omitted); accord Dann, 220 Ariz. at 369 ¶ 98,
207 P.3d at 622.
Additionally, a victim may not recommend a
particular sentence.
Ellison, 213 Ariz. at 141 ¶ 111, 140 P.3d
at 924.
¶66
During
the
first
penalty
phase,
Christine
made
a
victim impact statement to the jury pursuant to § 13-752(R).
After that jury deadlocked on the appropriate penalty and a new
jury was convened for the second penalty phase, Christine did
not appear, but a victim advocate read her statement verbatim to
the second penalty-phase jury.
¶67
Prince
argues
that
§
13-752(R)
violates
the
Eighth
Amendment because it does not prohibit victim recommendations
for a sentence or other victim impact evidence that renders the
trial
fundamentally
establish
that
such
unfair.
evidence
But
is
32
Payne,
not
Dann,
admissible
and
under
Ellison
§
13-
752(R).
And Christine did not try to recommend or otherwise
suggest a particular sentence.
¶68
Prince
also
asserts
that
victim
impact
evidence
is
irrelevant in the penalty phase because mitigation focuses on
the
defendant
rather
than
victim’s death on others.
argument.
the
victim
or
the
impact
of
the
We have repeatedly rejected that
See, e.g., Bocharski, 218 Ariz. at 488 ¶ 51, 189 P.3d
at 415 (citing Ellison, 213 Ariz. at 140-41 ¶ 111, 140 P.3d at
923-24);
impact
see
also
evidence
Payne,
as
a
501
U.S.
method
of
at
825
(upholding
“informing
the
victim
sentencing
authority about the specific harm caused by the crime,” thus
allowing “the jury to assess meaningfully the defendant’s moral
culpability”).
¶69
Prince
further
contends
that
§
13-752(R)
unconstitutionally permits evidence that “infus[es] irrelevant
emotions into the proceeding.”
too.
We have rejected that argument
E.g., Dann, 220 Ariz. at 369-70 ¶ 101, 207 P.3d at 622-23.
Moreover, the trial court here instructed the jury to consider
the victim impact evidence “to the extent it rebuts mitigation,”
but not “as a new aggravating circumstance.”
See Bocharski, 218
Ariz. at 488 ¶ 53, 189 P.3d at 415 (finding no Eighth Amendment
violation
when
jurors
instructed
to
consider
victim
impact
statement “only to rebut the mitigation evidence”).
¶70
Next, Prince claims his Confrontation Clause rights
33
were
violated
statement
when
to
the
the
victim
second
advocate
penalty-phase
read
Christine’s
jury.
Because
confrontation rights do not extend to the penalty phase under
either
the
Arizona
or
federal
Constitution,
no
Confrontation
Clause violation occurs when a third party reads a victim impact
statement to the jury during the penalty phase.
Tucker, 215
Ariz. at 320 ¶ 94, 160 P.3d at 199.
¶71
Finally, Prince asserts that Christine’s statement was
unduly prejudicial in part because it was too long, comprising
eight
pages
statement
in
of
transcript
Payne.
The
compared
Court
in
to
Payne,
the
five-sentence
however,
did
not
suggest its result turned on the short length of the statement.
Indeed, courts have upheld much longer victim impact statements
against
claims
of
undue
prejudice.
E.g.,
United
States
v.
Nelson, 347 F.3d 701, 713-14 (8th Cir. 2003) (six statements
totaling 101 pages); State v. Taylor, 838 So. 2d 729, 753 (La.
2003) (eight and one-half pages).
¶72
Prince also claims that several of Christine’s remarks
were unduly prejudicial.
Christine stated:
Nine and a half years later and we’re all still going
through the same pain and trying to just figure out
how to get by another day.
For me, because I was
there every single moment of that night is in my head
24 hours a day.
I can still feel the stubble on my
hands and my face.
I can hear her crying when he
threw her across the floor. I can hear, oh, the sound
of her last breaths.
I can hear her heart beating
34
when it was stopping. I can smell it. It never goes
away, twenty-four hours a day, every single day.
¶73
Prince
argues
that
the
jurors
could
have
construed
Christine’s reference to “nine and a half years later” as a plea
for the death penalty.
But that statement was in the context of
Christine describing her persistent pain due to the loss of her
daughter.
Prince
also
contends
that
Christine
improperly
described details of the offense, but we have upheld similar
comments.
See State v. Glassel, 211 Ariz. 33, 53-54 ¶¶ 79, 86,
116 P.3d 1193, 1213-14 (2005); cf. Simmons v. Bowersox, 235 F.3d
1124, 1134-35 (8th Cir. 2001) (finding no undue prejudice when
statement speculated at length about the victim’s thoughts and
feelings
during
the
murder).
Prince
has
not
shown
undue
prejudice.
¶74
In her statement, Christine also spoke of Cassandra’s
ambitions
to
reservation.
become
a
doctor
and
practice
on
an
Indian
Prince contends that a victim impact statement may
not describe the murder victim’s future plans, citing Conover v.
State, 933 P.2d 904, 921 (Okla. Crim. App. 1997).
Conover is
inapposite, however, because its holding was based solely on
Oklahoma’s statute, not due process considerations.
victim
impact
statement
that
“show[s]
.
.
.
Moreover, a
[the]
uniqueness as an individual human being” is permissible.
501 U.S. at 823 (quotation omitted).
35
victim’s
Payne,
¶75
Courts routinely uphold statements that touch on the
victim’s future plans.
E.g., Raulerson v. State, 491 S.E.2d
791, 801-02 (Ga. 1997) (upholding statement describing victims’
plans to marry and attend college); State v. Rocheville, 425
S.E.2d 32, 36 (S.C. 1993); State v. Gentry, 888 P.2d 1105, 1113,
1134
(Wash.
1995)
(upholding
statement
from
victim’s
father
describing the twelve-year-old victim’s plans for the future).
Here, Christine did not describe Cassandra’s ambitions at length
or in an unduly prejudicial manner.
¶76
Finally, Prince objects to Christine’s description of
the impact Cassandra’s death had on the family.
however, we have upheld similar comments.
Once again,
See Armstrong, 218
Ariz. at 463 ¶¶ 52-53, 189 P.3d at 390 (“[The victim] ended her
statement by describing how the murders negatively affected her
family and [her son] in particular because he lacked a fatherly
figure in his life.”); State v. Carreon, 210 Ariz. 54, 72 ¶¶ 9193,
107
victim’s
P.3d
900,
daughter
918
(2005) (upholding
“almost
committed
statements
suicide
because
that
the
she
felt
blamed” and that the victim’s son was “not going to school,
hanging out with the wrong crowd [and] getting into drugs”).
3.
Jury Instructions on Mitigation
¶77
given
Prince argues that the jury instructions on mitigation
during
confusing.
the
second
penalty
We
review
de
novo
36
phase
were
whether
inconsistent
jury
and
instructions
correctly state the law, State v. Gallardo, 225 Ariz. 560, 567
¶ 30, 242 P.3d 159, 166 (2010), “read[ing] the jury instructions
as a whole to ensure that the jury receives the information it
needs to arrive at a legally correct decision,” Granville, 211
Ariz. at 471 ¶ 8, 123 P.3d at 665 (citing Kauffman v. Schroeder,
116 Ariz. 104, 106, 568 P.2d 411, 413 (1977)).
¶78
At
instructed
the
the
close
jury
that
of
the
penalty
“[m]itigating
phase,
the
circumstances
judge
may
found from any evidence presented during this hearing.”
be
The
judge then gave more specific instructions regarding mitigation:
Mitigating circumstances are any factors that are a
basis for a life sentence instead of a death sentence,
so long as they relate to any sympathetic or other
aspect of Mr. Prince’s character, propensity, history
or record, or circumstances of the offense.
Mitigating
circumstances
are
not
an
excuse
or
justification for the offense, but are factors that in
fairness or mercy may reduce Mr. Prince’s moral
culpability.
Mitigating circumstances may be offered by the defense
or the State or be apparent from the evidence
presented at this hearing.
You are not required to
find that there is a connection between a mitigating
circumstance and the crime committed in order to
consider the mitigation evidence.
. . . .
While all 12 of you must unanimously agree regarding
the
appropriate
sentence,
you
do
not
need
to
unanimously
agree
on
a
particular
mitigating
circumstance.
Each
one
of
you
must
decide
individually
whether
any
mitigating
circumstance
exists.
37
The defense bears the burden of proving the existence
of any mitigating circumstance by a preponderance of
the evidence. That is, although the defense need not
prove its existence beyond a reasonable doubt, the
defense must convince you by the evidence presented
that it is more probably true than not true that such
a mitigating circumstance exists.
¶79
Prince
concedes
that
these
instructions
correctly
stated the law, but argues they were likely to confuse the jury.
Although the jury was instructed that the defense has the burden
of proving the existence of mitigation, the jury was also told
it could consider any evidence, even if adduced by the State, in
making
its
final
determination.
According
to
Prince,
“the
interplay” between these instructions gave him the burden of
persuasion,
but
“inconceivable
not
to
the
the
burden
of
lay
person
not
production,
educated
in
which
the
is
law.”
Prince asserts that the confusing instructions could prompt “the
average
juror
[to]
simply
ignore
any
evidence
affirmatively introduced by the defense.”
that
was
not
Because Prince did
not object on this ground at trial, we review for fundamental
error only.
See State v. Roque, 213 Ariz. 193, 225 ¶ 134, 141
P.3d 368, 400 (2006).
¶80
No error occurred, fundamental or otherwise.
Jurors
are presumed to follow jury instructions.
State v. LeBlanc, 186
Ariz. 437, 439, 924 P.2d 441, 443 (1996).
Nothing in the record
suggests that the final penalty-phase jurors were confused or
failed to consider any evidence that could have been mitigating.
38
Additionally, both instructions find support in Supreme Court
case law.
See Marsh, 548 U.S. at 170-71 (allowing states to
place
defendants
on
the
burden
of
proving
mitigating
circumstances); Skipper v. South Carolina, 476 U.S. 1, 4 (1986)
(“[T]he sentencer may not refuse to consider or be precluded
from considering any relevant mitigating evidence.”) (quotation
omitted).
4.
Double-Counting of Cassandra’s Age
¶81
Prince claims that because no special verdict form was
used, the final penalty jury might have improperly considered
Cassandra’s age twice in imposing the death sentence.5
Although
a specific fact, such as the victim’s age, can establish two
aggravating
factors,
that
fact
cannot
be
“weighed
‘twice
in
balancing aggravating and mitigating circumstances.’”
Chappell,
225
State
v.
Velazquez, 216 Ariz. 300, 307 ¶ 21, 166 P.3d 91, 98 (2007)).
In
Ariz.
at
241
¶
48,
236
P.3d
at
1188 (quoting
Chappell, the judge instructed the jury not to “consider twice
any fact or aspect of the offense.”
Id. at ¶ 50; see also
Velazquez, 216 Ariz. at 307 ¶ 23, 166 P.3d at 98.
¶82
refrain
The trial court here did not instruct the jury to
from
counting
Cassandra’s
age
twice.
But
unlike
5
Prince raises this point as a reason to set aside
especial cruelty finding on independent review, but
contention is better viewed as a separate point of error.
39
the
his
Velazquez, Prince did not request a specific jury instruction on
this point.
Indeed, Prince never raised the double-counting
issue at any time.
Thus, fundamental error review applies.
See
Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d at 607.
¶83
As
Prince cannot show error, let alone fundamental error.
he
whether
acknowledges,
“it
[Cassandra’s]
death sentence.”
age
is
was
unknown,
counted
and
indeed
twice
in
unknowable,
imposing
the
But even if the trial court erred by failing
to specifically instruct the jury on this point or by not using
a special verdict form, no prejudice resulted.
The court’s
instruction defining the (F)(6) especial cruelty aggravator did
not mention the victim’s age.
Nor did the prosecutor suggest
that the victim’s age is a factor in the (F)(6) analysis, unlike
the situation presented in Chappell.
D.
¶84
Prosecutorial Misconduct
Prince
misconduct.
alleges
We
will
several
instances
reverse
a
of
conviction
prosecutorial
because
of
prosecutorial misconduct if “(1) misconduct is indeed present;
and (2) a reasonable likelihood exists that the misconduct could
have affected the jury’s verdict, thereby denying defendant a
fair trial.”
Anderson, 210 Ariz. at 340 ¶ 45, 111 P.3d at 382
(quotation omitted).
Because Prince never objected or moved for
a mistrial on grounds of prosecutorial misconduct, we review his
claims for fundamental error.
Roque, 213 Ariz. at 228 ¶ 154,
40
141 P.3d at 403.
¶85
lower
After shooting Cassandra, Prince shot Christine in the
jaw.
Prince
questioned
claims
Christine
aggravation
phase.
prosecutor
sought
about
At
to
that
her
the
the
prosecutor
medical
beginning
establish
how
condition
of
her
improperly
during
the
testimony,
the
Christine’s
“physical
condition . . . might relate to [her] testimony.”
He asked
Christine about her current medical condition, and she responded
that she had hepatitis C and “bullet and bone fragments in [her]
brain”
that
may
be
lethal
if
they
move.
After
questioning
Christine about the twenty-six medications she was taking, the
prosecutor
“memory
asked
or
whether
ability
to
her
medical
testify,”
condition
she
and
affected
it
said
did
her
not.
Moments later, Christine started crying, and the prosecutor then
asked, “Do you think it’s the medication that’s making you cry?”
Christine said no but also stated, “Because I sat for the last
nine years dealing with this and I thought it was over.”
The
judge sustained defense counsel’s objection and instructed the
jury to disregard that testimony.
¶86
Later,
prosecutor
defense
stated
again
counsel
he
would
as
Christine
asked
asked
“move
about
to
described
Christine’s
approach
off
of
the
that
the
shootings,
injuries,
bench,
area.”
the
The
and
the
after
prosecutor
prosecutor,
however, ended his direct examination with more questions about
41
Christine’s injuries, asking her where the bullet hit her and
how many surgeries she had, to which the answer was forty-six.
¶87
The prosecutor’s initial questions about Christine’s
health were not improper because they related to Christine’s
ability
to
prosecutor’s
improper,
recall
events
other
Prince
and
questions
has
not
testify.
about
shown
And
even
Christine’s
prejudice.
if
the
health
His
were
claim
that
questions about Christine’s medical condition induced the jury
to find Cassandra’s murder exceptionally cruel is speculative at
best.
Moreover,
the
trial
court
instructed
the
jury
to
disregard any questions to which objections were sustained, and
“not
to
be
swayed
by
mere
sentiment,
conjecture,
sympathy,
passion, prejudice, public opinion or public feeling.”
Those
instructions “sufficiently countered any negative impact” the
prosecutor’s questions might have had on the jury.
See State v.
Atwood, 171 Ariz. 576, 609, 832 P.2d 593, 626 (1992), overruled
on other grounds by State v. Nordstrom, 200 Ariz. 229, 241 ¶ 25,
25 P.3d 717, 729 (2001).
¶88
the
Prince alleges that, during the second penalty phase,
prosecutor
improperly
used
the
term
questioning of both psychiatric experts.
of
Prince’s
expert,
the
prosecutor
“excuse”
during
his
On cross-examination
asked
whether
Prince’s
molestation as a teenager was “an excuse for what he did” and
whether
the
jury
was
“supposed
42
to
forgive
[Prince]
just
–
because he got mad all the time[.]”
Defense counsel promptly
objected, claiming the prosecutor’s use of the term “excuse”
implied an improper standard regarding mitigation.
sustained the objection.
The judge
The next day, the prosecutor similarly
questioned the State’s expert, asking “do we normally look at
antisocial personality disorder as an excuse for commission of a
crime.”
Once
again,
the
judge
sustained
defense
counsel’s
objection.
¶89
Prince cannot show fundamental error.
prosecutor’s
questions
misstated
the
Even if the
standard
governing
mitigation, the trial court immediately corrected the error by
sustaining
Prince’s
objections
and
instructing
the
jury
to
disregard any question and answer for which the court sustained
an
objection.
extensively
Additionally,
about
how
the
to
court
assess
instructed
mitigation,
the
jury
stating
“[m]itigating circumstances are not an excuse or justification
for the offense.”
Any confusion about the applicable standard
was cured by the jury instructions.
See State v. Newell, 212
Ariz. 389, 403 ¶ 68, 132 P.3d 833, 847 (2006) (stating jurors
are presumed to follow instructions).
¶90
During the prosecutor’s second penalty-phase closing
argument, he stated, “This guy’s bad temper doesn’t – is not
mitigation that’s sufficiently substantial to call for leniency.
It should be aggravation.
[Prince] should have learned not to
43
be
blowing
his
stack
like
that.”
Although
the
prosecutor
misstated the law regarding aggravation, see A.R.S. § 13-752(K)
(stating
the
second
penalty-phase
jury
shall
aggravation), the error was not fundamental.
not
retry
After the judge
sustained defense counsel’s subsequent objection, the prosecutor
immediately corrected himself, alleviating any prejudice caused
by his misstatement.
Additionally, the judge instructed the
jury that two aggravating factors had already been found and
that the lawyers’ closing arguments were not evidence, negating
the remark’s effect.
See State v. Morris, 215 Ariz. 324, 336-37
¶ 55, 160 P.3d 203, 215-16 (2007); Anderson, 210 Ariz. at 341-42
¶ 50, 111 P.3d at 383-84.
¶91
Finally, Prince claims the prosecutor improperly said
during
the
connection
second
existed
penalty-phase
between
closing
Prince
having
argument
that
previously
no
been
molested and the crime:
[The molestation] was damaging to him.
It created
this sexual identity crisis for him. It probably was
carried over all the way until he was arrested for
this crime. That was a problem for him. But you may
want to consider what does that have to do with
killing a 13-year-old girl?
This argument, however, was not improper.
Although a connection
between a defendant’s proffered mitigation and the crime is not
required, “the state may fairly argue that the lack of a nexus
to
the
crime
diminishes
the
44
weight
to
be
given
alleged
mitigation.”
P.3d
State v. Villalobos, 225 Ariz. 74, 83 ¶ 39, 235
227,
236
(2010).
Prince
thus
has
not
established
fundamental error resulting from any of the incidents of alleged
misconduct.
¶92
Even
if
any
individual
instances
of
prosecutorial
misconduct do not warrant reversal, we also consider whether
“persistent
and
pervasive
cumulative effect.”
218
(quotation
misconduct
occurred”
and
“the
Morris, 215 Ariz. at 339 ¶ 67, 160 P.3d at
omitted).
The
incidents
discussed
above,
however, do not amount to persistent and pervasive misconduct
that deprived Prince of a fair trial, particularly in view of
the
trial
court’s
sustaining
defense
objections
and
giving
curative instructions to the jury.
III.
¶93
2002,
INDEPENDENT REVIEW
Because Prince committed the murder before August 1,
we
independently
“aggravation
sentence.”
and
review
mitigation
and
the
the
jury’s
propriety
findings
of
the
on
death
A.R.S. § 13-755(A)-(C); see 2002 Ariz. Sess. Laws,
ch. 1, § 7 (5th Spec. Sess.).
We review the record de novo and
do not defer to the jury’s findings or decisions.
Newell, 212
Ariz. at 405 ¶ 82, 132 P.3d at 849.
¶94
In
supports
the
our
review,
aggravating
we
determine
whether
circumstances
beyond
45
the
a
evidence
reasonable
doubt.6
Anderson, 210 Ariz. at 351 ¶ 104, 111 P.3d at 393.
We
“consider the quality and the strength, not simply the number,
of aggravating and mitigating factors.”
State v. Womble, 225
Ariz. 91, 103 ¶ 50, 235 P.3d 244, 256 (2010) (quoting State v.
Kiles (Kiles II), 222 Ariz. 25, 38 ¶ 62, 213 P.3d 174, 187
(2009)).
Although
we
do
not
require
a
nexus
between
the
mitigating factors and the crime, the defendant’s failure to
establish a causal connection “may be considered in assessing
the quality and strength of the mitigation evidence.”
Newell,
212 Ariz. at 405 ¶ 82, 132 P.3d at 849; accord Ellison, 213
Ariz. at 144 ¶ 132, 140 P.3d at 927.
¶95
If we find the mitigation “sufficiently substantial to
warrant leniency, then we must impose a life sentence.”
Newell,
212 Ariz. at 405 ¶ 81, 132 P.3d at 849 (quotation omitted).
Otherwise, we must affirm the death sentence.
A.
Aggravating Factors
1.
Id.
Cassandra’s Age – A.R.S. § 13-751(F)(9)
¶96
Prince was twenty-six and Cassandra thirteen years old
6
Our independent review of the aggravating circumstances is
limited to the evidence presented to the jury during the
aggravation phase.
Therefore, we do not consider evidence
presented exclusively to the guilt-phase jury, the first, postremand jury during the penalty phase, or the second penaltyphase jury.
See Snelling, 225 Ariz. at 187 ¶ 23, 236 P.3d at
414; cf. Ellison, 213 Ariz. at 142 ¶ 121 n.19, 140 P.3d at 925
n.19 (declining on independent review to consider evidence
presented only to the guilt-phase jury and not to the sentencing
jury).
46
when he murdered her.
The State produced sufficient evidence to
prove this uncontested aggravator.
2.
Especial Cruelty – A.R.S. § 13-751(F)(6)
¶97
To show that a murder is especially cruel, the state
must prove that “the victim consciously experienced physical or
mental pain prior to death, and the defendant knew or should
have known that suffering would occur.”
Snelling, 225 Ariz. at
188 ¶ 25, 236 P.3d at 415 (quotation omitted).
We “examine the
entire murder transaction and not simply the final act that
killed the victim.”
Ellison, 213 Ariz. at 142 ¶ 119, 140 P.3d
at 925 (alteration and quotation omitted).
¶98
We have found mental anguish when a victim hears the
assailant discuss the impending murder, id. at ¶ 121 (victims
heard one assailant order the other to kill one victim); State
v. Libberton, 141 Ariz. 132, 139, 685 P.2d 1284, 1291 (1984)
(victim heard the assailants discuss killing him), or when the
victim
experiences
“uncertainty
about
her
ultimate
fate,”
Hargrave, 225 Ariz. at 17 ¶ 70, 234 P.3d at 585 (quoting State
v. Kiles (Kiles I), 175 Ariz. 358, 371, 857 P.2d, 1212, 1225
(1993)).
The
length
of
time
during
which
the
victim
contemplates her fate may affect whether the victim’s mental
anguish is sufficient to support a finding of especial cruelty.7
7
We have found especial cruelty when the victim suffered
mental pain for a very short time.
Chappell, 225 Ariz. at 235
47
Prince II, 206 Ariz. at 27 ¶ 8, 75 P.3d at 117; cf. Snelling,
225 Ariz. at 188-89 ¶¶ 29, 32, 236 P.3d at 415-16 (setting aside
cruelty
finding
victim’s]
when
initially
“very
seeing
little
[the
time
elapsed
defendant]
and
between
the
[the
murder”);
State v. Soto-Fong, 187 Ariz. 186, 204, 928 P.2d 610, 628 (1996)
(finding time of contemplation insufficient to support cruelty
when the victims were killed in rapid succession).
¶99
The
evidence
establishes
beyond
a
reasonable
doubt
that Cassandra experienced uncertainty about her fate, feared
for her life, and consciously suffered mental anguish before
being shot.
Prince
On the night of the murder, Cassandra saw and heard
attack
apartment.
and
savagely
Cassandra
beat
looked
her
mother
“scared.”
in
She
the
stood
family’s
beside
Christine in the living room as Prince, gun in hand, screamed
and threatened to kill the entire family.
He locked a sliding
glass door to prevent anyone from leaving.
When Cassandra tried
to run for help, Prince threw her violently to the floor.
She
was crying, “terrified,” and “scared” as she said to Christine,
“Mama, mama.
What are we gonna do, mama?”
At that point,
Cassandra would have known that she could not escape Prince’s
¶ 12, 236 P.3d at 1182 (finding sufficient evidence to support
especial cruelty finding when drowning victim conscious for
“thirty seconds to two minutes”); State v. Van Adams, 194 Ariz.
408, 421 ¶ 45, 984 P.2d 16, 29 (1999) (two to three minutes);
State v. Herrera, 176 Ariz. 21, 34, 859 P.2d 131, 144 (1993)
(“18 seconds to two or three minutes”).
48
wrath.
¶100
After Christine took Cassandra into her bedroom and
walked back out toward the living room, Cassandra watched Prince
throw her mother into Cassandra’s room and yell, “Who’s gonna
help you now, bitch” when Christine unsuccessfully attempted to
call 911.
Prince repeated his threat to kill the family as
Cassandra sat on her bed and clutched a pillow.
He grabbed the
pillow and pointed the gun at Cassandra, repeating his threat
and saying the last thing Christine would see was her “kids
dead.”
Christine then stood in front of the gun and “begg[ed]
[Prince] to kill [her],” saying “Just shoot me, Wayne.”
said, “[Y]ou don’t want to hurt Cassie, Wayne.
. . . You don’t want to hurt her.”
She
You love Cassie.
Prince responded by hitting
Christine and throwing her onto the bed beside Cassandra.
As
Cassandra cowered on her bed and reached for her mother, Prince
pointed the gun at Cassandra’s head and shot her through the
pillow.
¶101
In challenging the especial cruelty finding, Prince
compares his case to Soto-Fong, 187 Ariz. at 204, 928 P.2d at
628, and Snelling, 225 Ariz. at 189 ¶ 32, 236 P.3d at 416, in
which we set aside such a finding.
Unlike those cases, however,
the murder here did not occur rapidly.
At least twenty minutes
passed between the time Prince and Cassandra arrived home and
the shooting occurred.
During that time, Prince beat Christine,
49
locked the doors, threatened to kill the family, and assaulted
both Christine and Cassandra.
Christine begged Prince to spare
Cassandra’s
witnessed
life.
Cassandra
events, and the effect on her was clear:
the
entire
series
of
she was pale, crying,
“scared to death,” and asked her mother “what [they] [were]
going to do.”
Considering the entire sequence of events, we
find Cassandra had significant time to contemplate her fate,
unlike the victims in Soto-Fong and Snelling.
¶102
Prince next points to our statement in Prince II that
“[f]ew especially cruel findings . . . are predicated solely on
an inference that the victim contemplated his or her fate.”
Ariz. at 26 ¶ 8, 75 P.3d at 116.
206
But later cases clearly
establish that the victim’s uncertainty is a sufficient, but not
necessary, basis for a finding of especial cruelty.
See Tucker,
215 Ariz. at 311 ¶ 33, 160 P.3d at 190; Ellison, 213 Ariz. at
142 ¶ 120, 140 P.3d at 925.
And Cassandra exhibited obvious
signs of mental anguish before Prince shot her.
¶103
known
Finally, Prince denies that he knew or should have
that
dissociative
Cassandra
state,
would
making
suffer
him
because
unable
to
he
act
was
in
a
reasonably.
Nothing in the record, however, supports this claim.
Neither
mental health expert testified that Prince was in a dissociative
state at the time of the murder, and no other evidence was
presented on that point.
To the contrary, the defense expert
50
testified that Prince knew right from wrong at that time, and
the State’s expert testified that Prince had time to reflect and
stop himself from committing the murder.
¶104
Prince
asks
us
to
take
judicial
notice
that
individuals with borderline personality disorder also may suffer
from dissociative disorders.
But an appellate court may take
judicial notice of a fact only if it is “so notoriously true as
not to be subject to reasonable dispute.”
In re Cesar R., 197
Ariz. 437, 440 ¶ 7, 4 P.3d 980, 983 (App. 1999) (quotation
omitted).
diagnoses
Because
and
the
subject
disorders,
it
is
matter
not
involves
appropriate
psychiatric
for
judicial
notice.
¶105
The State produced sufficient evidence to establish
beyond
a
reasonable
doubt
the
“especially
cruel”
aggravator
under § 13-751(F)(6).
B.
¶106
Mitigation
Prince presented evidence of one statutory mitigating
factor and four non-statutory mitigating factors.
Prince has
the burden to prove mitigating circumstances by a preponderance
of the evidence.
1.
¶107
A.R.S. § 13-751(C).
Significant Impairment - § 13-751(G)(1)
If
the
defendant’s
capacity
to
appreciate
the
wrongfulness of his conduct or to conform his conduct to the
requirements
of
the
law
is
51
significantly
impaired,
it
constitutes
statutory
Personality
or
mitigation.
character
A.R.S.
disorders,
§
13-751(G)(1).
however,
insufficient to establish this mitigator.
usually
are
Velazquez, 216 Ariz.
at 314 ¶ 65, 166 P.3d at 105; State v. Kayer, 194 Ariz. 423, 437
¶ 49, 984 P.2d 31, 45 (1999).
¶108
Prince claims his ability to conform his conduct to
the law was significantly impaired on the night of the murder.
Although
he
correctly
points
out
that
neither
mental
health
expert opined that he had the capacity to conform his actions to
the law, neither expert testified that Prince did not have that
capability.
Importantly, neither expert testified that Prince
had entered a dissociative state when he shot Cassandra.
Once
again,
Prince
notice
that
people
with
suffer
from
(see
supra
asks
a
dissociative
this
Court
borderline
disorders,
but
to
take
personality
as
judicial
disorder
discussed
earlier
¶ 104), psychiatric diagnoses are not an appropriate subject for
judicial
notice.
Prince
has
thus
failed
to
prove
this
mitigating factor.
2.
¶109
Difficult Childhood
A
difficult
circumstance.
392.
Although
or
traumatic
childhood
is
a
mitigating
Armstrong, 218 Ariz. at 465 ¶ 74, 189 P.3d at
the
defendant
need
not
prove
a
causal
nexus
between the mitigating circumstance and the crime, the lack of
such a connection may lessen the mitigation’s weight.
52
Id.;
McCray, 218 Ariz. at 260 ¶ 36, 183 P.3d at 511.
Difficult
childhood circumstances also receive less weight as more time
passes
between
the
defendant’s
childhood
and
the
offense.
McCray, 218 Ariz. at 260 ¶ 36, 183 P.3d at 511; Pandeli, 215
Ariz. at 532 ¶ 72, 161 P.3d at 575.
¶110
Prince established by a preponderance of the evidence
that he endured a difficult and abusive childhood.
His father
was an alcoholic, abusive to his wife and children and often on
the run from law enforcement.
As a child, Prince lived in an
old barn in rural Virginia that lacked adequate heat, running
water, a kitchen, or a bathroom.
characterized
severe
those
poverty.”
economic
When
Prince’s psychiatric expert
conditions
Prince
was
children fled by bus to Arizona.
ten,
as
“really,
his
mother
really
and
the
During his teenage years,
Prince lived at various times with an adult male who provided
drugs and alcohol in return for sex.
stipulated
that
this
individual
At trial, the parties
molested
and
sexually
abused
Prince.
¶111
Prince undoubtedly had a very difficult childhood.
We
consider it in mitigation but give it little weight because he
has not established a connection between his childhood trauma
and the murder.
Moreover, Prince was twenty-six years old when
he killed Cassandra, attenuating the impact of his dysfunctional
childhood on his conduct.
See State v. McGill, 213 Ariz. 147,
53
161 ¶ 63, 140 P.3d 930, 944 (2006).
¶112
Prince compares his case with Bocharski, in which we
vacated a death sentence on independent review because of the
defendant’s abusive childhood, severe neglect, and alcoholism.
218
Ariz.
at
Bocharski,
between
497-99
however,
the
crime
¶¶
the
and
101-12,
189
defendant
the
P.3d
at
established
mitigating
a
evidence.
424-26.
causal
Id.
In
nexus
at
499
¶ 110, 189 P.3d at 426 (“Dr. Beaver testified that Bocharski’s
troubled upbringing helped cause the murder of [the victim]:
He
testified that Bocharski’s emotional and alcoholic state likely
played a substantial role in the events that led to the murder
. . . and that a person in his state would have been far less
able
than
others
reactions.”).
to
control
and
manage
his
feelings
and
Here, in contrast, Prince did not prove a causal
connection between his childhood and the crime.
3.
¶113
Poor Mental Health
Poor mental health that does not rise to the level of
statutory mitigation under § 13-751(G)(1) may nonetheless be a
non-statutory mitigating factor.
314 ¶ 65, 166 P.3d at 105.
See Velazquez, 216 Ariz. at
Absent a causal nexus to the crime,
however, we usually give it little weight.
at 465 ¶ 77, 189 P.3d at 392.
Armstrong, 218 Ariz.
We weigh mental health mitigation
“in proportion to a defendant’s ability to conform or appreciate
the wrongfulness of his conduct.”
54
State v. Boggs, 218 Ariz.
325, 344 ¶ 94, 185 P.3d 111, 130 (2008) (quotation omitted).
¶114
Prince
established
illness.
Both mental health experts opined that Prince suffered
from a mental disorder.
that
with
anti-social
suffers
from
mental
Prince’s expert diagnosed him with
borderline personality disorder.
Prince
he
The State’s expert diagnosed
personality
disorder
and
agreed
that
Prince also exhibited some symptoms of borderline personality
disorder.
Regardless of which specific diagnosis is correct,
the record reflects that Prince’s mental health is poor and,
therefore, is a mitigating factor.
¶115
Prince
borderline
claims
personality
a
connection
disorder
and
the
exists
murder.
between
His
his
expert
testified that individuals with borderline personality disorders
have “labile mood[s]” characterized by bouts of “intense and
inappropriate anger,” causing them to destroy relationships and
act impulsively.
According to Prince, his violent upbringing
exacerbated his disorder, making him unable to cope with the
violent domestic dispute that resulted in Cassandra’s death.
¶116
The expert, however, also testified that Prince knew
right from wrong, and the State’s expert testified that Prince
had time to reflect and stop himself from committing the murder.
Neither
expert
could
establish
night of the shootings.
Prince’s
mental
state
on
the
And as stated earlier, neither expert
testified that Prince was in a dissociative state, as Prince now
55
claims.
¶117
At
disorder,
most,
not
Prince
“the
that
proved
disorder
that
he
has
controlled
a
personality
[his]
conduct.”
State v. Brewer, 170 Ariz. 486, 505-06, 826 P.2d 783, 802-03
(1992)
(concluding
“[d]efendant’s
borderline
personality
disorder [did] not warrant a reduction of his sentence to life
imprisonment”); see State v. Stuard, 176 Ariz. 589, 613, 863
P.2d 881, 905 (1993) (“Even if [the defendant] became enraged
when confronted by his victims, he still displayed some ability
to control his actions . . . .
The doctors agree he appreciated
the wrongfulness of his conduct and that he did not lose touch
with reality.”).
Consequently, because Prince has failed to
establish a causal nexus between his poor mental health and the
murder,
we
give
this
factor
little
mitigating
weight.
See
Boggs, 218 Ariz. at 344 ¶ 95, 185 P.3d at 130 (finding no causal
link between mental health issues and crime when experts could
not establish defendant’s mental state or that defendant “did
not know right from wrong”); Pandeli, 215 Ariz. at 533 ¶ 81, 161
P.3d at 576 (giving the defendant’s “mental health mitigation
minimal weight” when the evidence showed he “knew right from
wrong, was not significantly impaired, and did not demonstrate a
causal nexus between his mental impairments and the murder”).
¶118
Prince also claims that his suicidal behavior on the
night of the murder is a mitigating factor.
56
Although suicidal
behavior is arguably subsumed within the statutory mitigating
factor of significant impairment or the non-statutory factor of
poor
mental
weight.
2010)
health,
we
give
this
factor
its
own
mitigating
See Williams v. Ryan, 623 F.3d 1258, 1270 (9th Cir.
(“[A]
evidence.”).
sentencing
Although
court
the
must
consider
testimony
all
established
mitigating
that
Prince
exhibited suicidal tendencies, it also established that Prince
knew it was wrong to shoot Cassandra, even if he was suicidal.
As a result, Prince’s suicidal behavior is entitled to little
mitigating weight.
¶119
Finally,
Prince
claims
as
a
emotional and learning disabilities.
mitigating
factor
his
These disabilities are a
non-statutory mitigating factor but their lack of connection to
the crime affects the weight we accord them.
Doerr,
193
Ariz.
56,
71
¶
73,
969
P.2d
See State v.
1168,
1183
(1998)
(concluding no connection existed between the defendant’s low IQ
and the murder).
¶120
When Prince moved to Arizona, he was placed in classes
for children with significant emotional disabilities.
school,
he
attended
classes
for
dropped out during the tenth grade.
the
learning
In high
disabled,
but
Prince has an IQ of 85 to
90, which his expert described as borderline mental retardation,
but which the State’s expert described as normal intelligence.
Once again, however, Prince has not established any connection
57
between his disabilities and the crime, making them entitled to
little mitigating weight.
4.
Remorse
¶121
A defendant’s expression of remorse is a non-statutory
mitigating factor.
State v. Spreitz, 190 Ariz. 129, 150, 945
P.2d 1260, 1281 (1997).
During his mental health evaluation,
Prince said that he felt great remorse for Cassandra’s death and
that he would always regret killing her because she did not
deserve to die.
Prince also gave a brief allocution in the
penalty phase, stating he was “extremely sorry for the pain that
[he]
caused
everyone.”
Prince
has
thus
established
this
mitigating factor, and it is entitled to some weight.
C.
Propriety of Death Sentence
¶122
In light of the relatively weak mitigation and the two
aggravating factors, we conclude that Prince’s mitigation is not
sufficiently substantial to warrant leniency.
IV.
¶123
CONCLUSION
For the foregoing reasons, we affirm Prince’s death
sentence.8
__________________________________
A. John Pelander, Justice
8
Prince raises twenty-two issues to avoid preclusion on
federal review.
Those issues are presented verbatim in the
Appendix.
58
CONCURRING:
__________________________________
Rebecca White Berch, Chief Justice
__________________________________
W. Scott Bales, Justice
__________________________________
Robert M. Brutinel, Justice
__________________________________
Michael D. Ryan, Justice (Retired)∗
APPENDIX
1.
The prosecutor’s discretion to seek the death
penalty has no standards and therefore violates the
Eighth and Fourteenth Amendments to the United States
Constitution and Article 2, Sections 1, 4, and 15 of
the Arizona Constitution.
See State v. Cromwell, 211
Ariz. 181, 192, 119 P.3d 449, 459 (2005).
2.
Arizona’s death penalty is applied so as to
discriminate against poor, young, and male defendants
whose victims have been Caucasian, in violation of the
Eighth and Fourteenth Amendments and Article 2,
Sections 1, 4, and 13 of the Arizona Constitution.
See State v. West, 176 Ariz. 432, 455, 862 P.2d 192,
215 (1993).
3.
The death penalty is cruel and unusual under any
circumstances and violates the Eighth and Fourteenth
Amendments to the United States Constitution and
Article 2, Section 15 of the Arizona Constitution.
∗
Justice Andrew D. Hurwitz has recused himself from this
case.
Pursuant to Article 6, Section 3 of the Arizona
Constitution, the Honorable Michael D. Ryan, Retired, was
designated to sit in this matter.
59
See State
(2001).
v.
Harrod,
200
Ariz.
309,
26
P.3d
492
4.
Execution by lethal injection is per se cruel and
unusual punishment.
State v. Hinchey, 161 Ariz. 307,
315, 890 P.2d 602, 610 (1995).
5.
Arizona’s
death
penalty
statute
unconstitutionally requires defendants to prove that
their lives should be spared.
State v. Fulminante,
161 Ariz. 237, 258, 779 P.2d 602, 623 (1988).
6.
Arizona’s
death
penalty
statute
unconstitutionally requires imposition of the death
penalty whenever at least one aggravating circumstance
and no mitigating circumstances exist.
State v.
Miles, 186 Ariz. 10, 19, 918 P.2d 1028, 1037 (1996).
7.
The statute unconstitutionally fails to require
the cumulative consideration of multiple mitigating
factors or require specific findings to be made as to
each factor. State v. Gulbrandson, 184 Ariz. 46, 69,
906 P.2d 579, 602 (1995).
8.
The death penalty is unconstitutional because it
permits jurors unfettered discretion to impose death
without adequate guidelines.
State v. Johnson, 212
Ariz. 425, 440, 133 P.3d 735, 750 (2006).
9.
The statute is unconstitutional because there are
no statutory standards for weighing. State v. Atwood,
171 Ariz. 576, 645-46, 832 P.2d 593, 662-63 (1992).
10. The
statute
insufficiently
channels
the
sentencer’s discretion in imposing the death sentence.
State v. Greenway, 170 Ariz. 151, 164, 823 P.2d 22, 31
(1991).
11. Appellant claims that a proportionality review of
a defendant’s death sentence is constitutionally
required. State v. Gulbrandson, 184 Ariz. 46, 73, 906
P.2d 579, 606 (1995).
12. Appellant claims that the State’s failure to
allege
an
element
of
a
charged
offense,
the
aggravating factors that made the defendant death
eligible, is a fundamental defect that renders the
60
indictment constitutionally defective.
McKaney v.
Foreman, 209 Ariz. 268, 271, 100 P.3d 18, 21 (2004).
13. Appellant asserts that the application of the new
death penalty statute passed in response to Ring v.
Arizona, 536 U.S. 584 (2002), violates a defendant’s
right against ex post facto application of new laws.
State v. Ring, 204 Ariz. 534, 547 ¶ 23, 65 P.3d 915,
928 (2003).
14. Appellant
claims
that
execution
by
lethal
injection is cruel and unusual punishment.
State v.
Van Adams, 194 Ariz. 408, 422, 984 P.2d 16, 30 (1999).
15. Subjecting Appellant to a new trial on the issues
of aggravation and punishment before a new jury
violated the double jeopardy clause of the Fifth
Amendment. State v. Ring, 204 Ariz. 534, 547, 65 P.3d
915, 928 (2003).
16. Arizona’s
statutory
scheme
for
considering
mitigating evidence is unconstitutional because it
limits full consideration of that evidence.
State v.
Mata, 125 Ariz. 233, 242, 609 P.2d 48, 57 (1980).
17. The absence of notice of aggravating factors
prior to Appellant’s guilt phase trial violates the
Sixth, Eighth, and Fourteenth Amendments.
State v.
Anderson, [210] Ariz. 327, 347, 111 P.3d 369, 389
(2005).
18. The
reasonable
doubt
instruction
at
the
aggravation phase lowered the burden of proof and
deprived Appellant of his right to a jury trial and
due
process
[]under
the
Sixth
and
Fourteenth
Amendments.
State v. Dann, 205 Ariz. 557, 575, 74
P.3d 231, 249 (2003).
19. Subjecting Appellant to a new trial on the issues
of aggravation and punishment before a new jury
violated the due process clause of the Fourteenth
Amendment. State v. Ellison, 213 Ariz. 116, 137, 140
P.3d 899, 920 (2006).
20. Requiring the jury to unanimously determine
whether the mitigating factors were sufficiently
substantial to call for leniency violated the Eighth
61
Amendment. State v. Ellison, 213 Ariz. 116, 137, 140
P.3d 899, 920 (2006).
21. The trial court’s refusal to admit stipulation
that Appellant would waive parole violated his right
to due process under the Fourteenth Amendment and his
right to have jury consider all mitigation under the
Eighth Amendment.
State v. Dann, 220 Ariz. 351, 207
P.3d 604 (2009).
22. Arizona’s
death
statute
create
an
unconstitutional presumption of death and places an
unconstitutional burden on Appellant to prove that
mitigation is sufficiently substantial to call for
leniency.
State v. Glassel, 211 Ariz. 33, 52, 116
P.3d 1193, 1212 (2005).
62
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