STATE OF ARIZONA v SHAD DANIEL ARMSTRONG
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SUPREME COURT OF ARIZONA En Banc STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) SHAD DANIEL ARMSTRONG, ) ) Appellant. ) ) __________________________________) Arizona Supreme Court No. CR-06-0443-AP Pima County Superior Court No. CR-61846 O P I N I O N Appeal from the Superior Court in Pima County The Honorable Christopher Browning, Judge AFFIRMED ________________________________________________________________ TERRY GODDARD, ARIZONA ATTORNEY GENERAL By Kent E. Cattani, Chief Counsel Capital Litigation Section Donna J. Lam, Assistant Attorney General Attorneys for State of Arizona Phoenix Tucson LAW OFFICES OF HARRIETTE P. LEVITT Tucson By Harriette P. Levitt Attorney for Shad Daniel Armstrong ________________________________________________________________ B A L E S, Justice ¶1 This automatic appeal is from a jury s determination that Shad Daniel Armstrong should receive death sentences for two murders. We have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution and Arizona Revised Statutes ( A.R.S. ) section 13-4031 (2001). FACTS AND PROCEDURAL HISTORY ¶2 In 2000, a jury convicted Armstrong of murdering, and conspiring to murder, his sister Farrah Armstrong and her fiancé Frank Williams. each murder The trial judge imposed death sentences for after finding two aggravators: Armstrong had murdered Farrah for pecuniary gain, A.R.S. § 13-703(F)(5) (Supp. 1998), and 703(F)(8). had This committed Court multiple affirmed the murders, A.R.S. 13- State convictions. § v. Armstrong (Armstrong I), 208 Ariz. 345, 360 ¶ 74, 93 P.3d 1061, 1076 (2004). ¶3 Armstrong was sentenced under a procedure later found unconstitutional in (2002). Ring v. Arizona (Ring II), 536 U.S. 584 In reviewing Armstrong s death sentences, this Court considered whether it was harmless error for the trial judge, rather than a jury, to have found the aggravating factors and to have determined that death sentences were appropriate. State v. Armstrong (Armstrong II), 208 Ariz. 360, 366 ¶ 24, 93 P.3d 1076, 1082 (2004). The Court found harmless the trial judge s finding of the (F)(8) multiple murders aggravator. Id. was concluded required, however, because the Court Resentencing that a reasonable jury could reach different conclusions than had the trial judge regarding the (F)(5) pecuniary gain aggravator and the significance of the mitigating circumstances. ¶4 Id. In 2006, a new jury found the (F)(8) multiple murders aggravator, but not the (F)(5) aggravator, and determined that Armstrong should be sentenced to death for each murder. 2 This appeal followed. ¶5 The facts related to the murders, which are described in more detail in Armstrong I, 208 Ariz. at 347-50 ¶¶ 2-22, 93 P.3d at 1063-66, are as follows. Oklahoma Farrah. with his girlfriend Armstrong and In 1996, Armstrong lived in Russette Farrah Medina burglarized and sister home a his in Texas. After Armstrong learned that Oklahoma authorities were looking for him, he fled to Tucson with Medina, Medina s daughter, and Farrah. ¶6 In Tucson, romantically involved Farrah and met moved Williams. into an They apartment became together. Armstrong and Medina could not afford rent, so they moved in with Williams and Farrah. Tensions grew in the apartment. Medina and Armstrong frequently clashed, and Farrah was upset with Armstrong because of an unpaid cable bill. In early 1998, Armstrong left the apartment and moved in with his friend David Doogan. They lived in a trailer belonging to Doogan s father. in Three Points, Arizona, Later, Medina, her daughter, and another child fathered by Armstrong also moved to the trailer in Three Points. ¶7 Meanwhile, parents in Oklahoma. get married. resolve her Farrah and Williams visited Farrah s They shared their plans to move there and Farrah discussed with her parents her need to outstanding legal problems. 3 After returning to Tucson in early February, Farrah told Medina about her plans to return to Oklahoma and turn herself over to authorities. She also told Medina that in order to get favorable treatment, she planned to tell the Oklahoma authorities where Armstrong was located. ¶8 Medina told Armstrong about his sister s plans. He became angry and worried that he would go to prison and that he and Medina would lose custody of their children. Armstrong discussed Farrah s plans with Doogan Shortly after, and the pair started plotting to kill Farrah and Williams. ¶9 Several days before the murders, Armstrong and Doogan dug a grave near the trailer. On the afternoon of February 19, 1998, Armstrong asked Farrah to come to Three Points because he had money for the unpaid cable bill. He also asked her to bring Williams help because they needed his with Doogan s car. Armstrong had Medina and the children go to a different trailer so the children would not see Farrah arrive. To further prepare for the murders, Doogan and Armstrong hung sheets on the walls and gathered plastic bags and a blanket to cover the bodies. Armstrong also loaded a shotgun with deer slugs. ¶10 Near dusk, Farrah and Williams drove up to the property, Doogan opened the front door, and Armstrong hid with the shotgun. As Farrah and Williams approached the trailer, Doogan waved Armstrong off. Armstrong put down the gun and 4 greeted Farrah and Williams. living room. Eventually everyone was in the Farrah sat on a couch, Williams sat on a recliner, and Doogan sat on a chair opposite Williams. As Doogan talked with Farrah and Williams, Armstrong retrieved the shotgun. He returned to the living room and shot Williams in the chest. Armstrong shot Farrah twice, first in the chest and then in the head. ¶11 He then shot Williams in the head. Doogan and Armstrong disposed of the bodies. They placed a plastic bag over Williams head and wrapped the blanket around both bodies. They could not easily carry the bodies, so they dragged them outside and used a truck to pull the blanket to the open grave. They pushed the bodies into the hole and partially filled it with dirt. They then moved the bloody couch and recliner into the truck bed. bloody sheets, put them in finished filling the grave. Armstrong gathered some of the the hole with the bodies, and By that time, Medina had returned to the main trailer and soon they all got in the truck and left Three Points. They dumped the furniture in the desert and headed to Williams and Farrah s apartment, where they took some electronic items and Farrah s jewelry. ¶12 called On the Sunday after the killings, Doogan s neighbor and asked Doogan if he knew where Armstrong was. Doogan, following Armstrong s directions, said that Armstrong had left for Michigan. Armstrong immediately prepared to leave 5 town. Armstrong, Medina, and the children spent several months in Los Angeles before relocating to Odessa, Texas. these evasive progress. maneuvers, an investigation was Despite already in A friend of Williams and Farrah called the police about their disappearance, and authorities discovered the bloodstained furniture in the desert. the police. Doogan s father also contacted The police obtained a search warrant for the Three Points property, discovered the bodies, and began searching for Armstrong and Medina. Nearly a year after the killings, authorities arrested them in Texas. DISCUSSION ¶13 Armstrong raises nine issues on appeal. For the reasons discussed below, we affirm his death sentences. A. ¶14 A.R.S. § 13-703.02 and A.R.S. § 13-703.03 Armstrong argues that the trial court erred by not requiring, before his resentencing trial, pre-trial evaluations under A.R.S. § 13-703.02 (Supp. 2007) to determine if Armstrong is mentally retarded or under A.R.S. § 13-703.03 (Supp. 2007) to determine his competency to stand trial. not object to the trial court s Because Armstrong did failure to order these evaluations, we will review solely for fundamental error, which requires Armstrong to show both that fundamental error exists and that the error in his case caused him prejudice. State v. Henderson, 210 Ariz. 561, 567 ¶ 20, 115 P.3d 601, 607 (2005). 6 ¶15 The current version of § 13-703.02, in effect at the time of Armstrong s resentencing trial, applies to resentencing proceedings. See 2002 Ariz. Sess. Laws., ch. 1, § 7 (5th Spec. Sess.) ( 13-703.02 . . . as amended by this act . . . appl[ies] to any sentencing or resentencing proceeding on any first degree murder case that is held after the effective date of this act. ) Because Armstrong s resentencing was held after the effective date of the 2002 modification to A.R.S. § 13-703.02, the trial court erred in not using the prescreening procedures outlined in that statute. ¶16 Armstrong cannot show, however, that he was prejudiced by the trial court s failure to order a prescreening evaluation for mental retardation. We have refused to order a new hearing on mental retardation when there was no evidence rais[ing] any doubt as to whether [the defendant] may be mentally retarded. State v. Dann, 206 Ariz. 371, 376 ¶ 21, 79 P.3d 58, 63 (2003). Armstrong does not argue that he is mentally retarded, nor does any evidence raise doubt about whether Armstrong is mentally retarded. Although the trial court should have followed the procedures in A.R.S. § 13-703.02, the failure to do so does not require reversal or a hearing on mental retardation. ¶17 We have never applies at resentencing. resolved whether A.R.S. § 13-703.03 See State v. Harrod, 218 Ariz. 268, 277 ¶ 28, 183 P.3d 519, 528 (2008) (declining to decide whether 7 § 13-703.03 Section . . . 13-703.03(A) appl[ies] requires to the capital trial resentencings ). court to start the screening process [i]f the state files a notice of intent to seek the death penalty. Here the State filed such a notice in March 1999, well before the adoption of A.R.S. § 13-703.03. Unlike § 13-703.02, legislature s intent there to is no apply language competency indicating the prescreening to resentencing proceedings. ¶18 not Because Armstrong is unable to show prejudice, we need resolve whether A.R.S. § 13-703.03(A) applies to resentencing trials or applies only at the initial pre-trial phase following the State s notification of intent to seek the death penalty. Cf. Harrod, 218 Ariz. at 278 ¶ 33, 183 P.3d at 529 (holding any error in not ordering an evaluation under A.R.S. § 13-703.03(A) harmless because nothing in the record suggested the defendant was incompetent). ¶19 Armstrong points to two facts to suggest he may have been incompetent to stand trial: (1) at his first sentencing hearing, he put on evidence indicating he behaved irrationally around the time of the murders; and, (2) at the resentencing, he introduced information of a mental health history, including a diagnosis for bipolar disorder. These facts, however, do not suggest that at trial he lacked an ability to make a reasoned choice among alternatives, with 8 an understanding of the consequences of the choice. State v. Kayer, 194 Ariz. 423, 434 ¶ 38, 984 P.2d 31, 42 (1999). Because no evidence suggests Armstrong may have been incompetent to stand trial in 2006, any error did not prejudice him. B. The transcript of David Doogan s testimony ¶20 Armstrong next argues that the admission of a transcript of David Doogan s guilt phase testimony was error because parts of it were irrelevant and prejudicial. He also argues that the transcript violated his Sixth Amendment right to confrontation. discretion. We review evidentiary rulings for an abuse of State v. Tucker, 215 Ariz. 298, 314 ¶ 58, 160 P.3d 177, 193 (2007). Evidentiary rulings based on constitutional law or statutory construction, however, are reviewed de novo. See id. at 315 ¶ 61, 160 P.3d at 194. Because Armstrong objected below, we will review any error under the harmless error standard. 607. Henderson, 210 Ariz. at 567 ¶ 18, 115 P.3d at Harmless error review places the burden on the state to prove beyond a reasonable doubt that the contribute to or affect the . . . sentence. ¶21 guilt David phase witness testify. Doogan trial. during the testified The State resentencing trial, did not Id. extensively planned error to at call but he Armstrong s Doogan as refused a to Armstrong moved to preclude the State from offering the transcript of Doogan s prior testimony, arguing that its 9 admission would violate the Sixth Amendment Confrontation Clause and the rules of evidence. ¶22 The trial court denied the motion, reasoning that A.R.S. § 13-703 (Supp. 2006) allowed the resentencing jury to hear anything the first jury heard, the transcript was relevant, and there was no confrontation problem because Armstrong had an opportunity to During aggravation the cross-examine Doogan phase, the at State the first read to trial. the jury Doogan s direct examination. 1. Evidentiary ruling ¶23 The trial court based its decision to allow Doogan s testimony at A.R.S. 13-703 2007). § least partially (Supp. 2007) on and a faulty A.R.S. interpretation § 13-703.01 of (Supp. The judge thought that the statutes stated that the new jury is entitled to consider anything or any evidence . . . that was adduced at the guilt phase of the trial. ¶24 As This is an incorrect interpretation of our statutes. we have stated before, evidence admitted at the guilt proceeding is deemed admitted at a sentencing proceeding only if the trier of fact is the same in both proceedings. State v. Ellison, 213 Ariz. 116, 136 ¶ 80, 140 P.3d 899, 919 (2006); see also A.R.S. § 13-703(D) ( Evidence that is admitted at the trial and that relates to any aggravating or mitigating circumstances shall be deemed admitted as evidence at a sentencing proceeding 10 if the trier of fact considering that evidence is the same trier of fact that determined the defendant s guilt. ). Indeed, A.R.S. § 13-703(B) commands that [a]t the aggravation phase . . . the admissibility of information relevant to any of the aggravating circumstances . . . shall be governed by the rules of evidence. Thus, it would have been error to allow Doogan s transcript solely because the guilt phase jury had heard the testimony. ¶25 The trial court, however, did not admit Doogan s testimony for this reason alone; it also determined that the evidence was relevant. Evidence is relevant if it tends to make the existence of some fact of consequence more or less probable. Ariz. R. Evid. 401. exclude relevant substantially Rule 403 gives the judge discretion to evidence outweighed if the by among other considerations. Armstrong advances argument that Doogan prejudicial. danger probative of unfair value is prejudice, Ariz. R. Evid. 403. ¶26 the its two theories transcript was to support irrelevant or his too First, Armstrong argues that substantial portions of Doogan s testimony were irrelevant to the (F)(5) pecuniary gain aggravator or the (F)(8) multiple murders aggravator. Specifically, Armstrong suggests that Doogan s testimony on the following topics was irrelevant: planning the murders; digging the grave and burying the bodies; removing the furniture and 11 cleaning the trailer; and Armstrong s fleeing from Arizona. ¶27 The details of the crime, including the planning and execution of the murders, were relevant to both the (F)(5) and (F)(8) aggravators. In addition, evidence regarding the blood- stained furniture corroborated testimony regarding the location of the murder, a fact relevant to the (F)(8) aggravator. details of Armstrong s pecuniary gain theft items of flight aggravator from Armstrong later pawned. were because Williams relevant the and to evidence Farrah s the admits that (F)(5) included apartment the that To the extent some of the information was minimally relevant, it was not overly prejudicial. Armstrong The the most inflammatory Indeed, details from Doogan s testimony - where and how the violence occurred were relevant to the (F)(8) multiple murders aggravator. The judge s determination that Doogan s testimony was relevant was not an abuse of discretion. ¶28 overly Second, Armstrong argues that Doogan s transcript was prejudicial because he was willing to concede existence of the (F)(8) multiple murders aggravator. the Armstrong sought to prevent the State from proving (F)(8) because this Court had conclude[d] that no reasonable jury could have found other than that the two murders . spatially, and motivationally related. at 365 ¶ 19, 93 P.3d at 1081. . . were temporally, Armstrong II, 208 Ariz. The trial court allowed the State 12 to prove (F)(8), reasoning that the State was obligated to secure a jury finding, notwithstanding this Court s holding that the previous judicial determination that (F)(8) existed was harmless error. ¶29 In effect, Armstrong asked the judge to repeat the same harmless error that occurred at the first trial. We rejected a similar argument in State v. Pandeli (Pandeli IV), 215 Ariz. 514, 522 ¶ 15, 161 P.3d 557, 565 (2007). held that even circumstance was if a judge s harmless error, finding of when death a an There, we aggravating sentence was vacated and remanded for resentencing, the State was obligated to re-prove the . . . aggravating circumstance on resentencing. Id. Moreover, A.R.S. § 13-703.01(P) requires the jury to make all factual determinations required by this section or the Constitution of the United States or this state to impose a death sentence. ¶30 Armstrong s original sentence was vacated and remanded for resentencing; therefore, the State was obligated to prove any aggravating circumstance to the jury. Ariz. at 366 ¶ 24, 93 P.3d at 1082. Armstrong II, 208 There was no abuse of discretion. 2. Confrontation Clause and Rule 19.3(c) ¶31 Armstrong also contends that the admission of the transcript of Doogan s testimony violated his Sixth Amendment 13 Confrontation Clause right because he did not have a meaningful opportunity to cross-examine Doogan. that admitting the transcript At trial, he also argued violated Rule 19.3(c) of the Arizona Rules of Criminal Procedure, which states that former testimony is admissible if [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. ¶32 The Confrontation Clause prohibits the admission of testimonial hearsay unless (1) the declarant is unavailable and (2) the defendant had a prior opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 59 (2004); see also State v. McGill, 213 Ariz. 147, 159 ¶ 51, 140 P.3d 930, 942 (2006) (noting testimonial that hearsay the Confrontation used to Clause establish applies an to aggravating circumstance). ¶33 We need not decide whether the admission of the transcript in the aggravation phase caused error because any error was harmless beyond a reasonable doubt. Confrontation Clause do not result in Violations of the automatic Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). reversal. Because the jury found the State did not prove the (F)(5) aggravator and because the Confrontation Clause and Rule 19.3(c) would not have prohibited the admission of the 14 transcript as mitigation rebuttal during the penalty phase, the only way Doogan s transcript could have impermissibly affected the verdict is with respect to the aggravator. (holding of the (F)(8) multiple murders See McGill, 213 Ariz. at 159 ¶ 52, 140 P.3d at 942 that admission finding the of Confrontation testimonial Clause hearsay did to not prohibit rebut the defendant s mitigation). ¶34 Apart presented from other Doogan s evidence prior sufficient aggravating circumstance. testimony, the State establish the (F)(8) to Specifically, Medina testified that she heard four shots and saw Armstrong and Doogan dragging the bodies from testified the that trailer Armstrong to the told pre-dug her how grave. the Medina murders also occurred, including that he shot Williams and Farrah in the living room and that he shot them each in the chest and the head. Finally, she testified that Armstrong told her he planned to kill the victims because Farrah intended to turn him over to Oklahoma authorities. It is clear that any error did not contribute to or affect the . . . sentence. Henderson, 210 Ariz. at 567 ¶ 18, 115 P.3d at 607. C. Other evidentiary rulings ¶35 As believed that resentencing discussed A.R.S. the above, §§ the 13-703 admission of and all 15 trial court 13-703.01 evidence mistakenly authorized admitted at at the earlier trial. trial court Armstrong s In addition to David Doogan s testimony, the relied on objections this to interpretation other evidence questioning during the aggravation phase. to and overrule lines of Armstrong argues that the trial court s rulings caused reversible error by allowing the jury to improperly consider large amounts of evidence. ¶36 In support of his argument, Armstrong asserts that A.R.S. § 13-703.01(G) and State v. Gulbrandson, 184 Ariz. 46, 66, 906 P.2d 579, 599 (1995), should have limited the admission of evidence. Armstrong argues that the evidence allowed during the aggravation phase went far beyond that necessary to prove the aggravating Gulbrandson only to circumstances, that a evidence circumstance. unconvinced. contrary fact-finder must that to tends give to language aggravating establish an in weight aggravating 184 Ariz. at 66, 906 P.2d at 599. We are Armstrong does not point to any specific evidence that was irrelevant or overly prejudicial, nor does he explain how the weight evidence to resulted evidence that aggravating circumstance. in the does not jury giv[ing] tend[] to aggravating establish an Gulbrandson, 184 Ariz. at 66, 906 P.2d at 599. ¶37 Armstrong also suggests that the language in A.R.S. § 13-703.01(G) allowing the State to present any evidence that demonstrates that the defendant should not be shown leniency 16 should be interpreted with Gulbrandson in mind, such that the state s right to present rebuttal evidence in the penalty phase is limited advanced rebutting the by reasons. of to specific defendant. mitigating Armstrong is circumstances misguided for two First, A.R.S. § 13-703.01(G) regulates the admission evidence at the penalty phase; everything Armstrong references was introduced during the aggravation phase. Indeed, the State offered little rebuttal evidence during the penalty phase. Armstrong fails to identify any evidence admitted in rebuttal that went outside the scope of A.R.S. § 13-703.01(G). ¶38 Second, we have made clear that the underlying facts of a murder are relevant during the penalty phase because they tend to show whether the defendant should be shown leniency. State v. Roque, 213 Ariz. 193, 220-21 ¶¶ 107, 110, 141 P.3d 368, 395-96 (2006). jury was Thus, to the extent Armstrong argues that the prejudiced describing details especially during of relevant to his the penalty crime that the aggravating phase may by not evidence have been circumstances, that argument has no merit. D. Victim impact statement ¶39 Julie Armstrong alleges that the victim impact statement of Williams, Frank Williams mother, violated the Eighth Amendment and caused reversible error. The admission of victim impact evidence is reviewed for abuse of discretion. 17 State v. Garza, 216 Ariz. 56, 69 ¶ 60, 163 P.3d 1006, 1019 (2007). 1. Constitutionality of A.R.S. § 13-703.01(R) ¶40 Armstrong argues that A.R.S. § 13-703.01(R), statute regulating victim statements, is unconstitutional. the This statute provides: At the penalty phase, the victim may present information about the murdered person and the impact of the murder on the victim and other family members and may submit a victim impact statement in any format to the trier of fact. ¶41 First, Armstrong contends that victim impact statements are irrelevant to legitimate jury considerations. We rejected this argument in Ellison, 213 Ariz. at 140-41 ¶¶ 11114, 140 P.3d at 923-24 ( These statements are relevant to the issue of the harm caused by the defendant . . . [and] do not violate the Eighth Amendment. ) (citing Lynn v. Reinstein, 205 Ariz. 186, 191 ¶ 17, 68 P.3d 412, 417 (2003)). ¶42 Second, Armstrong contends that A.R.S. § 13-703.01(R) unconstitutionally authority. contravenes the Supreme Court s See Ariz. Const. art. VI, § 5(5). rulemaking This argument is meritless. ¶43 The Arizona constitution grants a limited authority to the legislature to make rules that define, implement, preserve, and protect the specific rights unique and peculiar to crime victims, as guaranteed and created by the Victims Bill of Rights ( VBR ). State v. Hansen, 215 Ariz. 287, 290 ¶ 12, 160 18 P.3d 166, 169 (quoting State ex rel. Napolitano v. Brown, 194 Ariz. 340, 343 ¶ 11, 982 P.2d 815, 818 (1999)); see Ariz. Const. art. II, § 2.1(D) (granting limited rulemaking authority to the legislature under the VBR). Section 2.1(A)(4) of the VBR grants victims of crime the right [t]o be heard at any proceeding involving . . . sentencing. legitimate constitutional Thus, the legislature exercised power to establish A.R.S. § 13- 703.01(R). 2. ¶44 Prejudicial impact Aside from the constitutional challenge, Armstrong argues that the court abused its discretion by allowing Ms. Williams to give her statement after the close of mitigation evidence and before Armstrong s allocution. The Constitution places limits on victim statements: a statement violates due process if it is so unduly prejudicial that it renders the trial fundamentally unfair. 825 (1991). substance Payne v. Tennessee, 501 U.S. 808, Armstrong contends that the timing, along with the of the statement, made the statement unduly prejudicial. a. ¶45 Timing The parties disagreed about when during the penalty phase Ms. Williams should have made her statement. Armstrong wanted the statement to come before opening statements to avoid the implication that Ms. Williams 19 was a mitigation witness. After some deliberation, the court decided that Ms. Williams would give her statement after the State offered mitigation rebuttal evidence and before Armstrong s allocution. ¶46 According to Armstrong, this placement of the victim statement negated his mitigation evidence, diminished any effect his allocution might have had, and impermissibly turned her statement, which is not evidence, into an advisory to the jury on how to weigh the mitigating evidence. ¶47 Armstrong s arguments are unpersuasive. We have held that [v]ictim impact statements . . . are generally relevant to rebut mitigation. at 1019 n.12. Garza, 216 Ariz. at 69 ¶ 60 n.12, 163 P.3d Thus, although the statement may have affected how the jury assessed the mitigation evidence, that effect does not violate the Constitution. ¶48 The judge acted within his discretion in resolving the dispute about timing as he did. The timing in this case was not unusual, and similar challenges have been rejected. In State v. Carreon, the Court rejected the argument that the admission of victim impact statements after the introduction mitigation evidence unduly prejudiced the jury. of . . . 210 Ariz. 54, 72 ¶¶ 90-93, 107 P.3d 900, 918 (2005) (reasoning that the law permits victim impact evidence presentation of mitigation ). came after the State to rebut the defendant s Although Ms. Williams statement concluded 20 its presentation of rebuttal evidence, rather than during the State s rebuttal, the statement immediately followed the State s case; the State s formal separation of Ms. Williams statement cannot be said to have caused undue prejudice. ¶49 Finally, the trial court instructed the jury regarding victim impact statement. statements immediately after Ms. Williams Armstrong does not contend that the instruction was inadequate or that the jury disregarded it. See State v. Newell, 212 Ariz. 389, 403 ¶ 68, 132 P.3d 833, 847 (2006) ( We presume that the jurors followed the court s instructions. ). b. ¶50 Content of the statement Armstrong argues Ms. Williams made statements that fell outside the permissible scope of what victims may say at a capital sentencing. when she learned In particular, he notes that she said that she was pregnant with Williams, she also learned that her mother and husband had been seriously injured in separate accidents. In addition, she said her ex-husband beat [her] senseless and kidnapped [her] daughter, taking the daughter grandchild, out of the country. Williams son Brandon, She and also the discussed child s her various health problems. ¶51 Armstrong claims that Ms. Williams comments were inappropriate and prejudicial because they served only to create compassion for Ms. Williams that was not based on the impact of 21 her son s attenuated death. Although relationship to some the of impact her of comments the crime had an on its victims, and for that reason might properly have been excluded by the trial court, Ms. Williams statement was not so unduly prejudicial that it render[ed] the trial fundamentally unfair. Payne, 501 U.S. at 825. ¶52 After the remarks described above, Ms. Williams described Frank and Farrah, their engagement, and how pleased she was to see them happy. She ended her statement by describing how the murders negatively affected her family and Brandon in particular because he lacked a fatherly figure in his life. Following Ms. Williams remarks, the judge immediately instructed the jury, [T]his information is not a new aggravating circumstance, and you cannot consider it as such. It must not be the basis for purely emotional response to the defendant s actions. He further explained that the law . . . allows [the jury] to see the victim of the murder . . . as a unique person and to see the loss resulting from his murder. ¶53 When considered in context, and in light of the trial court s instructions, Ms. Williams remarks in the victim impact statement were not unduly prejudicial. E. ¶54 Armstrong s Allocution Armstrong next contends that the trial court erred by unconstitutionally restricting his 22 right to allocution. We review questions of constitutional and statutory interpretation de novo. Because Armstrong objected below, any error is subject to harmless error review. Henderson, 210 Ariz. at 567 ¶ 18, 115 P.3d at 607. ¶55 Armstrong listed remorse among the mitigating circumstances he intended to prove during the penalty phase. The State mitigation subsequently rebuttal, it intended to part present of its Armstrong s After the State gave this notice, Armstrong withdrew mitigating denying as killings. a trial that, at as first notice testimony remorse his gave circumstance, culpability causing the for State the to withdraw Armstrong s prior testimony from its intended rebuttal. The trial court made clear, however, that if Armstrong expressed remorse during his allocution, the State would be permitted to reopen its rebuttal case and present Armstrong s prior testimony denying responsibility for the crime. ¶56 Before closing arguments, Armstrong allocuted but did not explicitly express remorse. He stated his love for his sister and his inability to understand how he could have killed her and Williams. He told the jury that he could not explain his actions, that it was a senseless act, and that what he did was beyond forgiveness. Finally, he asked the jury for mercy. The State did not ask the court to reopen the case for rebuttal. ¶57 Armstrong contends that 23 these circumstances impermissibly limited his ability to express remorse in allocution. ¶58 In Arizona, a defendant has a right to allocute before he is sentenced. Ariz. R. Crim. P. 19.1(d)(7), 26.10(b)(1). This right, however, is not absolute. State v. Anderson, 210 Ariz. 327, 350 ¶ 100, 111 P.3d 369, 392 (2005). ¶59 We agree that a defendant should be able to express remorse at a capital sentencing. right was not denied. In this case, however, that Armstrong remorse, but he declined to do so. remained free to express In effect, Armstrong argues that he should have been able to shift a mitigating circumstance from his mitigation case into his allocution and thereby insulate that mitigating circumstance from rebuttal evidence. If Armstrong had presented remorse as a mitigating circumstance as he originally intended, the State undoubtedly would have been able to present rebuttal evidence. See A.R.S. § 13-703.01(G). The judge acted within his discretion in ruling that Armstrong could not avoid mitigation rebuttal simply by making statements in allocution that he otherwise would have made as part of his mitigation case. F. Sufficiency of evidence for (F)(8) ¶60 Armstrong argues that the State presented insufficient evidence to prove the existence of the (F)(8) multiple murders aggravating circumstance. We consider this issue as part of our 24 independent review. See A.R.S. § 13-703.04(A) (Supp. 2007). G. Previously rejected arguments ¶61 Armstrong raises three other arguments that we have rejected in prior cases. ¶62 One: The trial court refused to instruct the jury or to allow defense counsel to argue that mercy in and of itself can be a mitigating circumstance. We previously held that mercy is not a mitigating circumstance. State v. Andriano, 215 Ariz. 497, 507 ¶¶ 47-49, 161 P.3d 540, 550 (2007). Consistent with Andriano, to the trial court allowed Armstrong argue, and defense counsel did argue, that mercy is appropriate based on the mitigation evidence presented. ¶63 Two: The trial court caused fundamental error by not providing the jury with a specific mitigation verdict form. We rejected this argument in State v. Roseberry, 210 Ariz. 360, 373 ¶ 74 & n.12, 111 P.3d 402, 415 & n.12 (2005). ¶64 Three: The Arizona death penalty statutes are unconstitutional because they fail to provide adequate standards or guidance to jurors to determine whether a death sentence is appropriate and they require the accused to prove he should not be executed. We rejected the first contention in State v. Pandeli (Pandeli I), 200 Ariz. 365, 382 ¶ 90, 26 P.3d 1136, 1153 (2001), vacated on other grounds by Pandeli v. Arizona (Pandeli II), 536 U.S. 953 (2002); we rejected the second in State v. 25 Ring (Ring I), 200 Ariz. 267, 284 ¶ 64, 25 P.3d 1139, 1156 (2001), rev d on other grounds by Ring II, 536 U.S. at 584. INDEPENDENT REVIEW ¶65 Because the murders occurred before August 1, 2002, we must independently aggravation sentence. and review mitigation the and trial the court s propriety findings of the of death A.R.S. § 13-703.04(A); 2002 Ariz. Sess. Laws, ch. 1, § 7 (5th Spec. Sess.). A. Aggravating circumstance ¶66 The jury found one aggravating circumstance: The defendant has been convicted of one or more other homicides . . . that were committed during the commission of the offense. A.R.S. § 13-703(F)(8). ¶67 The fact that a first degree murder and one or more other homicides occur[red] around the same time does not alone establish the (F)(8) aggravating circumstance. State v. Ring (Ring III), 204 Ariz. 534, 560 ¶ 80, 65 P.3d 915, 941 (2003). The State must establish beyond a reasonable doubt that the murders were temporally, spatially, and motivationally related, taking place conduct. during one continuous course of criminal State v. Prasertphong, 206 Ariz. 167, 170 ¶ 15, 76 P.3d 438, 441 (2003) (quoting State v. Rogovich, 188 Ariz. 38, 45, 932 P.2d 794, 801 (1997)). ¶68 Armstrong does not dispute 26 that the murders were temporally and spatially related; he contests only the State s proof of a motivational relationship. each victim need not be identical. The motives for killing In Dann, the defendant went to an apartment to kill one person, but also killed two others because they were there and because one of them was a witness. 206 Ariz. at 374 ¶ 10, 79 P.3d at 61. The Court held that while a jury may differ as to [the defendant s] precise motive for killing [the two additional victims], no jury would fail to find that his motives were originally targeted victim]. ¶69 related to the murder of [the Id. Armstrong s overriding motive to kill was his desire to avoid apprehension by the Oklahoma authorities. Both Medina and Doogan testified that when Armstrong learned of Farrah s plan to notify the authorities, he started planning to kill her and Williams to stop her from doing so. ¶70 Armstrong argues that he killed Williams for the separate reason that he simply hated him and he interfered with Armstrong s control over Farrah. He cites Medina s testimony that Armstrong just said he didn t like [Williams] and the fact that an initial plan was to kill only Williams. The testimony reveals, however, that part of the reason Armstrong hated and wanted to kill Williams was that, in his view, Williams had too much influence over Farrah, and if he killed only Farrah, then Williams might turn Armstrong over to the 27 authorities anyway. ¶71 As we noted in Armstrong II, even if Armstrong killed [Williams] because intextricably he hated intertwined with him, his such motivation motivation for is killing Farrah: his desire not to be pursued by Oklahoma authorities. 208 Ariz. at 364-65 ¶ 17, 93 P.3d at 1080-81. The State proved (F)(8) beyond a reasonable doubt. B. Mitigating circumstances ¶72 During the penalty phase, the State and the defendant may present any evidence . . . relevant to . . . whether there is mitigation leniency. that is sufficiently A.R.S. § 13-703.01(G). substantial to call for The defendant has the burden to prove any mitigating circumstance by a preponderance of the evidence, but is not limited to an enumerated list of mitigating circumstances. ¶73 A.R.S. § 13-703(C), (G). Armstrong mitigating illness, presented circumstances: compassionate environment, and impact evidence difficult nature, of five family good death of history, behavior sentence non-statutory on in mental structured family. We consider each in turn. 1. ¶74 Difficult family history The Court considers a difficult family history in mitigation. State v. Boggs, __ Ariz. __, __ ¶ 94, 185 P.3d 111, 130 (2008). Although we do not require a causal nexus between 28 the mitigating circumstance and the murders, the lack of a causal nexus between a difficult personal life and the murders lessens the effect of this mitigation. Id. (citing Garza, 216 Ariz. at 73 ¶ 84, 163 P.3d at 1023. ¶75 Armstrong presented evidence that his early childhood years lacked stability. His father was an alcoholic who abused his mother and left the family soon after Armstrong was born. Armstrong was often left in the care of his grandmother, and his mother married two more times by the time Armstrong was seven years old. His grandmother died when he was about thirteen, and he was unable to attend her funeral. He subsequently dropped out of school and began getting in trouble with authorities. He spent much of his teen years in foster care and group homes. He also presented evidence of various health problems he suffered as an infant, some of which can increase the risk of future violent behavior. ¶76 Armstrong suggests this history is causally connected to the murder of Farrah because he felt a sense of abandonment when he learned of Farrah s plans similar to the sense he felt when his grandmother died. Any suggestion that Farrah s murder was an uncontrolled emotional response to a feeling of abandonment is suspect in light of Armstrong s lengthy and detailed planning to murder her. Although Armstrong has established that he had a troubled and unstable upbringing, in this case we accord it 29 little mitigating weight. 2. Mental health problems ¶77 This Court considers poor mental health a mitigating factor, but without a causal nexus to the crime, its weight is minimal. Boggs, __ Ariz. at __ ¶ 94, 185 P.3d at 130. In addition, the in Court weigh[s] mental health mitigation proportion to a defendant s ability to conform or appreciate the wrongfulness of his conduct. Id. (internal quotation marks and citations omitted). ¶78 Armstrong presented evidence diagnosed with bipolar disorder. that he was once He also presented evidence that he displayed symptoms of attention deficit hyperactivity disorder, although he was never so diagnosed. No testimony or evidence suggests Armstrong had a diminished ability to conform or appreciate the wrongfulness of his conduct. Id. Accordingly, we give his mental health history little mitigating weight. 3. Compassionate nature ¶79 Past good conduct and character is a relevant mitigating circumstance, but a single good deed, removed in time from the crime, does not rise to that level. State v. Greene, 192 Ariz. 431, 443 ¶ 57, 967 P.2d 106, 118 (1998). Armstrong presented childhood friend s evidence younger that he sister. A 30 was protective teacher and a of a foster parent also described him as a loving person. Armstrong s compassionate nature is This evidence of entitled to little mitigating weight, however, because the evidence of compassion is far removed from the crime and the facts of the crime rebut the idea that Armstrong is a compassionate and loving person. See Harrod, 218 Ariz. at 283 ¶ 61, 183 P.3d at 534 (noting that [a]lthough good character can be a significant mitigating factor, it deserves less weight in a case involving a murder planned in advance ). 4. Good behavior in structured environment ¶80 Armstrong presented testimony indicating that he has behaved and will behave well in incarceration. We do not regard this as a mitigating circumstance, however, because inmates are expected to behave well in prison. Id. at 284 ¶ 62, 183 P.3d at 535. 5. Impact on family ¶81 would Armstrong s have a mother negative testified impact on that a Armstrong s death young sentence children. Although this is a mitigating circumstance, we give it little weight. C. ¶82 Andriano, 215 Ariz. at 512 ¶ 77, 161 P.3d at 555. Propriety of death sentence In reviewing the propriety of the death sentence, we consider the quality and the strength, not simply the number, of aggravating and mitigating factors. 31 State v. Velazquez, 216 Ariz. 300, 315 ¶ 75, 166 P.3d 91, 106 (2007) (quoting Glassel, 211 Ariz. at 55 ¶ 93, 116 P.3d at 1215). ¶83 We give the multiple murders aggravating circumstance extraordinary weight. State v. Hampton, 213 Ariz. 167, 185 ¶ 90, 140 P.3d 950, 968 (2006). The mitigating evidence was not sufficiently substantial to warrant leniency. CONCLUSION ¶84 For the foregoing reasons we affirm Armstrong s sentences. _______________________________________ W. Scott Bales, Justice CONCURRING: _______________________________________ Ruth V. McGregor, Chief Justice _______________________________________ Rebecca White Berch, Vice Chief Justice _______________________________________ Michael D. Ryan, Justice _______________________________________ Patricia A. Orozco, Judge Justice Andrew D. Hurwitz has recused himself from this case. Pursuant to Article 6, Section 3 of the Arizona Constitution, the Honorable Patricia A. Orozco, Judge of the Arizona Court of Appeals, Division One, was designated to sit on this matter. 32
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