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SUPREME COURT OF ARIZONA En Banc STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) ALVIE COPELAND KILES, ) ) Appellant. ) _________________________________ ) Arizona Supreme Court No. CR-06-0240-AP Yuma County Superior Court Nos. SC89C15444 and SC89C15577 O P I N I O N Appeal from the Superior Court in Yuma & Maricopa Counties The Honorable Kirby D. Kongable, Judge Pro Tempore1 AFFIRMED ________________________________________________________________ TERRY GODDARD, ARIZONA ATTORNEY GENERAL By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Amy Pignatella Cain, Assistant Attorney General Attorneys for State of Arizona Phoenix Tucson LAW OFFICES OF PAUL J. MATTERN Phoenix By Paul J. Mattern Attorney for Alvie Copeland Kiles ________________________________________________________________ R Y A N, Justice I A ¶1 In February 1989, Valerie Gunnell, and her five-year- old and nine-month-old daughters were beaten to death in their                                                              1 Judge Kongable presided over this case first as a superior court judge in Yuma County, and later, after he had left the bench in Yuma County, as a judge pro tempore in Maricopa County. 1 Yuma apartment. After a jury convicted Alvie Kiles of three counts of first degree murder and two counts of child abuse, the trial judge sentenced Kiles to death for each murder. The convictions and Kiles sentences were affirmed on direct appeal. See State v. Kiles (Kiles I), 175 Ariz. 358, 857 P.2d 1212 (1993). In post-conviction relief proceedings, the superior court found ineffective assistance of counsel and vacated the convictions and sentences. ¶2 After a second jury trial in 2000, Kiles was again convicted of three counts of first degree murder and two counts of child abuse. case to The parties later stipulated to transfer the Maricopa aggravating factors County. for In each 2006, murder: jury2 a (1) found Kiles had three been previously convicted of a crime involving the use or threat of violence, (2) he had been convicted of multiple homicides, and (3) he had committed the heinous, or depraved manner. offenses in an especially cruel, See Ariz. Rev. Stat. ( A.R.S. ) § 13-703(F)(2) (1989) (prior offense involving threat or use of violence); A.R.S § 13-751(F)(6), (F)(8) (Supp. 2008) (multiple                                                              2 After Ring v. Arizona, 536 U.S. 584 (2002), legislation was enacted providing for a jury trial as to both the existence of capital aggravating circumstances and the appropriate sentence. 2002 Ariz. Sess. Laws, ch. 1, § 3 (5th Spec. Sess.); see State v. Ring, 204 Ariz. 534, 545, ¶ 13, 65 P.3d 915, 926 (2003). 2 murders and especially cruel, heinous or depraved).3 The jury also concluded that the two children were less than fifteen years of age. A.R.S. § 13-751(F)(9) (defendant an adult and victim younger than fifteen). The jurors, however, returned a verdict of death only for the murder of Valerie Gunnell.4 ¶3 An automatic notice of appeal was filed under Arizona Rules of Criminal Procedure 26.15 and 31.2(b) and A.R.S. §§ 134031 and -4033 (2001). This Court has jurisdiction under the Arizona Constitution, Article 6, Section 5(3), and A.R.S. §§ 134031, -4033. B5 ¶4 Alvie Kiles moved in with Valerie Gunnell and her two daughters in January 1989. Valerie and Kiles soon began arguing about Kiles stealing her food stamps to support his cocaine habit. On February 9, 1989, Deirdre Johnson, who lived next                                                              3 Arizona s capital sentencing statutes were reorganized and renumbered to A.R.S. §§ 13-751 to -759. 2008 Ariz. Sess. Laws, ch. 301, §§ 26, 38-41 (2d Reg. Sess.). Because the renumbered statutes are not materially different, we cite the current version of the statute, unless otherwise noted. 4 The jurors could not reach a unanimous verdict regarding the imposition of a capital sentence for the murders of the children. The State dismissed the notice of death penalty regarding those two slayings and the superior court sentenced Kiles to consecutive life sentences. Kiles does not appeal these convictions or sentences. 5 We view the facts in the light most favorable to sustaining the [guilty] verdict. State v. Tucker (Tucker I), 205 Ariz. 157, 160 n.1, 68 P.3d 110, 113 n.1 (2003). 3 door to Valerie, saw Kiles outside the apartment working on his car. Early the next day, Johnson saw Kiles back his car into a parking space at the apartment. Later that morning Valerie s mother knocked on the door of the apartment, but got no answer. ¶5 Larry Hawkins saw Kiles outside Hawkins apartment that morning in Valerie s car. Valerie s step-father also saw Kiles driving her car that day. Later, Deirdre Johnson noticed Kiles struggling to lift a trash bag over the fence behind the apartment. He dropped the bag, which emitted a loud thud sound when it landed. ¶6 That afternoon, Kale Valerie s car at a Yuma park. Johnson saw Kiles sitting in Referring to Valerie, Kiles told Johnson, I killed that girl. Kiles admitted to Johnson that I killed the kids too because they were crying and hollering and screaming. took from the He told Johnson that he had used something he car to commit the murders. Kiles also told Johnson that he had disposed of the children s bodies in the Colorado River. ¶7 Johnson did not believe Kiles, so Kiles took Johnson to Valerie s apartment. floor. Johnson saw Valerie s body lying on the There was a puddle of blood on the floor and blood all over the walls and the ceilings. Johnson attempted to leave the apartment, but Kiles hit him with a broom handle. ¶8 Kiles admitted killing 4 Valerie and the children to others. Kiles told Larry Hawkins that he had killed Valerie and her children. He explained that he and Valerie had argued over food stamps that Kiles had taken to buy cocaine. Kiles told Hawkins that Valerie had slapped him twice, once after he had told her not to. tire jack, Hawkins Kiles then went to his car and retrieved a which stated he that used to Kiles strike told Valerie him that at least Valerie twice. regained consciousness after the initial blow and asked Kiles, [W]hy did [you] do this? Kiles told Hawkins that he had killed the children because . . . they had seen him. Hawkins wrote a letter to Yuma Silent Witness describing Kiles admissions. ¶9 Kiles also admitted to Jesse Solomon, a family friend, and to his mother, Imojean Kiles, that he had killed Valerie with the jack. care of the He further told his mother that he had taken children because they could talk, and had dumped the children s bodies in a canal. ¶10 The Yuma February 11, 1989. disarray, overturned. with police went The cartons of to police eggs Valerie s found on the the floor apartment on apartment in and a lamp An officer saw blood spatters in a bedroom, signs of a struggle, blood on the bed, and something wrapped up in a blanket in the hall. ¶11 It was Valerie s body. Further investigation at the apartment revealed blood smeared on the bathroom floor as if somebody had tried to wipe 5 [it up]. The bathroom smelled of cleanser and police found a pile of bloody towels. ¶12 In Valerie s bedroom, the bed was covered in papers and money and there was clothing all over the floor. A blood- soaked pillow and a piece of a car jack with her hair and blood on it were also found. In the children s bedroom, two very large pools of blood were found on the bed. found on bedroom. the A walls, blood drapes, spatter ceiling, expert Blood spatter was and door testified of that the at fourteen blows were delivered in the children s room. west least In the northwest corner of the living room, a blood-stained ottoman and a bone fragment were also found. carpeting. living Blood spatter and blood stains were found in the room. indicated Blood had soaked into the A someone chair had in lost the a living lot of room had blood. stains A that large bone fragment and blood spatter were found near the south wall. addition, apartment. blood smears were found on the front door of In the Blood spatter and smears were found in the kitchen- dining area as well. ¶13 Valerie died from multiple blunt force trauma to the head with multiple scalp lacerations, skull fractures, and a brain laceration. She had a broken arm, which medical testimony identified as a defensive wound. The body of Valerie s younger child was later found in a canal in Mexico. 6 She died of blunt force trauma to the skull with extensive skull fractures and a brain laceration. The older child was never found. Her blood, however, was detected on the mattress cover in the apartment. ¶14 In his 2000 guilt-phase trial, Kiles admitted murdering Valerie.6 II A ¶15 Kiles first argues that the trial court s instruction on premeditation, combined with the prosecutor s arguments, ran afoul of this Court s ruling in State v. Thompson, 204 Ariz. 471, 479-80, ¶¶ 32-34, 65 P.3d 420, 428-29 (2003). ¶16 Because Kiles failed to object to either the jury instruction or the prosecutor s argument, we review only for fundamental error. See State v. Gallegos, 178 Ariz. 1, 11, 870 P.2d 1097, 1107 (1994) ( Failure to object at trial to an error or omission . . . waives the issue on appeal unless the error amounts to fundamental error. ); 21.3(c). see also Ariz. R. Crim. P. Fundamental error is error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005)                                                              6 Kiles did not testify at the first trial. Ariz. at 363, 857 P.2d at 1217. 7 See Kiles I, 175 (internal quotation standard of marks review, a omitted). defendant To must prevail under this establish both that fundamental error exists and that the error in his case caused him prejudice. Id. at ¶ 20. 1 ¶17 First degree murder is committed when a person [i]ntending or knowing that his conduct will cause death . . . causes the death of another with premeditation. 1105(A)(1) (1989). The superior court gave A.R.S. § 13the following instruction about premediation: Premeditation means the defendant acts with the knowledge that he will kill another human being, when such intention or knowledge precedes the killing by a length of time to permit reflection. An act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion. ¶18 No error occurred here. Thompson invalidated the use of an instruction stating both that premeditation could be as instantaneous as successive thoughts of the proof of actual reflection is not required. 80, ¶¶ 32-34, 65 P.3d at 428-29. here is similar to the mind and 204 Ariz. at 479- The jury instruction given alternative instruction approved Thompson, and reflects the statute in force at the time. 479, ¶ 32, 65 P.3d at 428.7 As Kiles The statute defined premeditation as meaning that 8 in Id. at acknowledges,                                                              7 that the instruction neither included the disapproved instantaneous as successive thoughts language nor stated that actual reflection was not required. that Indeed, the instruction specifically stated premeditation required consideration of the murder preceding the act. ¶19 This instruction reflection and action. correctly distinguishes between See id. ( [The jury must find that the defendant] reflected on the decision before killing. It is this reflection, regardless of the length of time in which it occurs, that distinguishes first degree murder from second because it degree murder. ). ¶20 This distinction is crucial was the language stating that the length of time [for reflection] can be as instantaneous as successive thoughts of the mind that created the problem in Thompson. 427. Id. at 478, ¶ 26, 65 P.3d at This problem was obviated by the trial court s instruction here, consistent with Thompson, specifying that an act that is the instant effect of a sudden quarrel or heat of passion is not premeditated. Id. at ¶ 28. This language distinguishes                                                              the defendant acts with either the intention or the knowledge that he will kill another human being, when such intention or knowledge precedes the killing by a length of time to permit reflection. An act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion. A.R.S. § 13-1101(1) (1989). 9 impulsive confirms killings the from planned legislature s or intent deliberated that killings premeditation than just a snap decision made in the heat of passion. be and more Id. 2 ¶21 Nor did the prosecutor s argument create fundamental error. The State s theory of the case was that Kiles left Valerie s apartment, went to his car, returned with the jack, attacked her, and when she regained consciousness, began the final, fatal onslaught. the prosecutor noted With respect to premeditation, although that the time required to actually premeditate could be instantaneous, he made clear that such was not the case in this matter. His argument focused on the circumstantial evidence of premeditation, noting that Kiles had to go out to his car, open the hatchback, find a weapon, return to the apartment, and then attack Valerie. Further, after his first attack did not kill Valerie, Kiles resumed his assault. ¶22 The prosecutor s argument was consistent with Thompson, which approved an instruction that said reflection can occur regardless of the length of time in which it occurs and specifically permits evidence of reflection. prosecutors to argue circumstantial 204 Ariz. at 479, ¶¶ 31-32, 65 P.3d at 428 ( Such evidence might include, among other things, threats made by the defendant to the victim, a pattern of escalating violence between the defendant 10 and the victim, or the acquisition of a weapon by the defendant before the killing. ).8 B ¶23 The State charged Kiles with murdering Valerie Gunnell knowingly and with premeditation. (1989).9 During closing arguments, the prosecutor and Kiles attorney argued about whether See the A.R.S. jury § could 13-1105(1) consider intoxication in determining premeditation. ¶24 The prosecutor argued that intoxication apply when you consider first degree murder. is to it. does not That is all there No argument could be made that it s any different. When you are discussing . . . the crime of first degree murder, whether it be premeditated or whether it be felony murder, you are not allowed to consider that the defendant may have been drinking or may have been intoxicated. That s the law. On rebuttal, the prosecutor similarly argued that intoxication was not a consideration in determining whether first degree murder had been committed, particularly noting that intoxication does                                                              8 In his reply brief, Kiles attempted to add new arguments relating to prosecutorial misconduct. These arguments, however, are waived, because opening briefs must present significant arguments, supported by authority, setting forth an appellant s position on the issues raised. State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989). 9 This Court has held that A.R.S. § 13-1105 permits a defendant to be charged with either knowing or intentional murder, and that knowing alone could be charged [e]ven if the State charged knowingly rather than intentionally to preclude the introduction of evidence of defendant s intoxication. State v. Lavers, 168 Ariz. 376, 389, 814 P.2d 333, 346 (1991). 11 not apply to a knowing crime. ¶25 In intoxication contrast, affected the his defense ability to argued that premeditate and Kiles commit that murder. Kiles attorney continued, You can consider the intoxication. We would not have put them in those instructions if we didn t want you to consider it . . . . As I told you in opening, this is a case about the degree to which you have to hold Alvie Kiles responsible for the death of Valerie. ¶26 Kiles also asked the court for a curative instruction on premeditation in light of the prosecutor s argument. trial court concluded that the following instruction The on intoxication sufficed: Intoxication means any mental or physical incapacity resulting from use of drugs or intoxicating liquors. No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition, but when the actual existence of the culpable mental state of intentionally or with the intent to is a necessary element to constitute any particular species or degree of offense, the jury may take into consideration the fact that the accused was intoxicated at the time in determining the culpable mental state with which he committed the act. ¶27 A trial court s refusal to give a jury instruction is reviewed for abuse of discretion. State v. Anderson (Anderson II), 210 Ariz. 327, 343, ¶ 60, 111 P.3d 369, 385 (2005). Court reviews de reflects the law. novo whether a jury instruction The accurately State v. Cox, 217 Ariz. 353, 356, ¶ 15, 174 12 P.3d 265, 268 (2007). ¶28 Kiles claim that he was entitled to an instruction on his defense of intoxication is without merit. The trial court instructed the jury under the terms of former A.R.S. § 13-503 (1989).10 That section provided that [n]o act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition, but when the actual existence of the culpable mental state of intentionally or with the intent to is a necessary element to constitute any particular species or degree of offense, the jury may take into consideration the fact that the accused was intoxicated at the time in determining the culpable mental state with which he committed the act. ¶29 is The statute unambiguously provides that intoxication a defense intentionally. only against the culpable mental state of See Lavers, 168 Ariz. at 389, 814 P.2d at 346 (concluding that voluntary intoxication is no defense to knowing first degree murder). Consequently, Kiles argument that he may not have reflected on his decision to bludgeon Valerie because he was voluntarily intoxicated cannot be sustained. ¶30 Kiles also argues that this Court s holdings in State v. Moody (Moody II), 208 Ariz. 424, 466-67, ¶¶ 188-96, 94 P.3d 1119, 1161-62 (2004), and State v. Schurz, 176 Ariz. 46, 55 &                                                              10 The legislature amended the statute in 1994 to eliminate intoxication as a defense for any criminal act or requisite state of mind. A.R.S. § 13-503 (2001); 1993 Ariz. Sess. Laws, ch. 256, §§ 2, 3 (1st Reg. Sess.). 13 n.5, 859 P.2d 156, 165 & n.5 (1993), indicate that intoxication under § 13-503 is a defense to premeditation. not so hold. These cases do Rather, consistent with the statute, they hold that intoxication is relevant to the culpable mental state of intentional. ¶31 For instance, in Moody II, we observed that the trial court erred because [r]ather than instructing the jury that intoxication could be considered in determining Moody s mental state at the time of the acts, the trial court instructed the jury on the later version intoxication as a defense. 1161 (emphasis added). of the statute, which disallows 208 Ariz. at 466, ¶ 188, 94 P.3d at In Schurz, we explained that § 13-503 permitted a jury to consider voluntary intoxication only when the culpable mental state is intentional or with intent to. 176 Ariz. at 55, 859 P.2d at 165. ¶32 was Schurz addressed whether an intoxication instruction appropriate when a defendant was charged with intentionally or knowingly committing first degree murder. Id. at 55, 859 P.2d at 165. The Court explained that [a]s a matter of logic and statutory construction, an allegation of intending or knowing is indistinguishable from an allegation of knowing. Id. An inexorable result of the statute, then, is that voluntary intoxication under A.R.S. § 13-503 will be considered by the jury only when intent is alleged and knowing 14 is not alleged. Id. The same reasoning applies to the could be premeditation instruction given in this case. ¶33 Schurz left open whether intoxication relevant and admissible on the question of reflection [as a requirement of premeditation], even if not admissible on the question of culpable mental state. 165 n.5. Id. at 55 n.5, 859 P.2d at But the premeditation instruction given here required proof that Kiles acted with the knowledge that he will kill another human being when such intention or knowledge precedes the killing by (Emphasis added.) a length of time to permit reflection. Because the instruction referred to both the knowledge and intentional mental states, there was no error. C ¶34 Although Kiles has affirmatively waived any challenge to the guilt and sentencing for the deaths of the two children, he nevertheless argues that the admission of various photographs, both at the guilt trial and during the sentencing proceedings, was error. ¶35 Admission of such evidence is reviewed for abuse of discretion. State v. Spreitz (Spreitz I), 190 Ariz. 129, 141, 945 P.2d 1260, 1272 (1997). The admissibility of a potentially inflammatory determined relevance of photograph the is photograph, (2) its by examining tendency to (1) the incite or inflame the jury, and (3) the probative value versus potential 15 to cause unfair prejudice. State v. Cruz, 218 Ariz. 149, 168- 69, ¶ 125, 181 P.3d 196, 215-16 (2008) (internal quotation marks omitted). ¶36 Kiles opening brief does not specify his objection to any but two of the challenged photographs. He has therefore waived any argument as to the other photographs. See State v. Martinez, 218 Ariz. 421, 434 n.14, ¶ 59, 189 P.3d 348, 361 n.14 (2008) (waiver found when argument fails to identify basis). ¶37 Exhibit 70, one of two exhibits on which Kiles presented argument, plainly meets the test for admissibility. The photograph demonstrates Valerie s broken arm, which medical testimony explained was a defensive wound. [T]he fact and cause of death are always relevant in a murder prosecution. Cruz, 218 Ariz. at 169, quotation marks omitted). the photograph that is ¶ 126, 181 P.3d at 216 (internal Kiles has identified nothing about particularly inflammatory, given that [t]here is nothing sanitary about murder. 127 (internal quotation marks omitted). especially Id. at ¶ Finally, the defensive wounds portrayed in the photograph are highly probative; the photograph thus corroborated that Kiles committed first degree murder and supported the existence of the aggravating factor of cruelty. See A.R.S. § 13-751(F)(6). ¶38 With respect to Exhibit 72, a photograph of one of the 16 children,11 Kiles suffered no prejudice. Given that the jury did not determine that a sentence of death was appropriate for the slayings of photograph the children, prejudiced the we jury cannot with conclude regard to that the this verdict rendered for Valerie s murder. D ¶39 Kiles claims that he was denied counsel in violation of the Sixth Amendment. representation of In briefing and in oral argument, Kiles appellate counsel contends that cumulative evidence of appointment alleged of counsel ineffectiveness constitute and complete delays in deprivation the of counsel for Sixth Amendment purposes, obviating any need for him to establish prejudice. See Powell v. Alabama, 287 U.S. 45, 68- 73 (1932) (holding that due process requires the provision of counsel). ¶40 Kiles does not claim that he was without counsel in any proceeding critical to his defense or that counsel lacked ample time to prepare. State v. Glassel, 211 Ariz. 33, 51, ¶¶ 62-64, 116 P.3d 1193, 1211 (2005) (rejecting claim of per se ineffective assistance when defense counsel presented arguments and evidence, but no witnesses, in mitigation); see also Powell, 287 U.S. at 71 (holding due process requires courts to assign                                                              11 This photograph depicts the child s body after it recovered from a canal in Mexico a week after the murders. 17 was counsel to capital defendants in a manner that does not preclude the giving of effective aid in the preparation and trial of the case ). Nor does Kiles contend on appeal he had an irreconcilable conflict with counsel. See State v. Moody (Moody I), 192 Ariz. 505, 508-09, ¶¶ 21, 23, 968 P.2d 578, 581-82 (1998) (reversing conviction and sentence when record demonstrated irreconcilable conflict). ¶41 Kiles counsel claims recognizes are that properly ineffective brought in assistance of post-conviction proceedings under Arizona Rule of Criminal Procedure 32. E.g., State v. Spreitz (Spreitz II), 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). Indeed, his counsel conceded at oral argument that all of his claims could be brought in such a proceeding. nonetheless claims that his numerous But he allegations of ineffectiveness may be combined to create structural error and should be considered on direct appeal. See United States v. Cronic, 466 U.S. 648, 659 n.25 (1984) ( The Court has uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding. ). ¶42 Even accepting all of Kiles allegations as true,12 we                                                              12 The State challenges the accuracy of Kiles characterization of the record below. Because we do not address his claims of ineffective assistance, we express no opinion on the allegations or their veracity and leave them for Kiles to 18 cannot conclude that he was effectively deprived of counsel. The most that can be said is that there were delays and allegations of poor professional conduct. ¶43 Because we cannot consider facts outside the record, our consideration of ineffective assistance of counsel claims on direct appeal would rarely result in reversal. We caution that raising an argument such as this on direct appeal gains very little, but risks a great deal, as the defendant who asks this Court to determine issues of ineffectiveness on the appellate record faces the possibility of later preclusion. See Ariz. R. Crim. P. 32.2(a)(2) ( A defendant shall be precluded from relief under this adjudicated rule on based the upon merits any on ground appeal or . . in . [f]inally any previous collateral proceeding . . . . ); see also Spreitz II, 202 Ariz. at 3, ¶ 9, 39 P.3d at 527 (explaining that improvidently raised ineffective assistance claims are not precluded because appellate courts will decline to address such claims). ¶44 Nonetheless, Kiles attempts to distinguish his case by arguing that the record demonstrates several violations of the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (rev. ed. 2003) ( ABA Capital Standards ), the ABA Criminal Justice Defense Function Standards                                                              raise in a proper proceeding. ¶ 64, 116 P.3d at 1211 n.9. See Glassel, 211 Ariz. at 51 n.9, 19 (3d ed. 1993) ( ABA Criminal Standards ), and the Arizona Rules of Professional attorneys Conduct. failed to Specifically, properly he assemble alleges a that defense his team, investigate the underlying facts of the case, communicate with Kiles, and represent him competently and diligently. See, e.g., Ariz. R. Sup. Ct. 42, E.R. 1.1, 1.3 (competence and diligence); ABA Capital Standard 10.4, 10.5 (establishing defense team, relationship with client); ABA Criminal Standard 4-2.1, 4-3.1, 4-4.1 (communication, investigative duties). relationship These alleged with counsel, violations, he and argues, constitute structural error. ¶45 Citing Wiggins v. Smith, 539 U.S. 510 (2003), Kiles argues that breach of these standards is qualitatively different from typical claims of ineffective assistance of counsel. Wiggins announced no new category of structural error. But Rather, that case addressed an ineffective assistance of counsel claim, an issue bearing. on which professional standards have considerable See id. at 519-20 ( Petitioner renews his contention that his attorneys performance at sentencing violated his Sixth Amendment right to effective assistance of counsel. ); Strickland v. Washington, 466 U.S. 668, 691-92 (1984) (noting professionally unreasonable standard).13 Nor do any of the                                                              13 Although this Court has subscribed to the ABA Capital Standards under Arizona Rule of Criminal Procedure 6.8 20 allegations raised by Kiles obviate the need for a proper Rule 32 proceeding at which there will be a full opportunity to assess counsels actions. E ¶46 Kiles case was subject to regular news coverage; Kiles claims the Yuma Sun published ninety-eight articles during a ten-year period. He maintains the articles detailed evidence of the case, including that the victims likely died from the same cause, that Kiles had told several people in Yuma he had committed the crimes, that Kiles had made inculpatory statements during sentencing at the original trial, and that he elected to stay silent in that trial. In addition, he argues, the coverage revealed personal information about witnesses, expert testimony from sentencing, and many other facts. trial court excessive presumed and should have concluded inflammatory prejudice and and moved that that the Kiles argued that the the second this publicity court trial should to was have another county.14                                                              (b)(1)(iii), the comment to the rule itself makes clear [a] deviation from the guidelines . . . is not per se ineffective assistance of counsel. The standard for evaluating counsel s performance continues to be that set forth in Strickland . . . . Ariz. R. Crim. P. 6.8, 2006 cmt. 14 Kiles did not contend that he proved actual prejudice from the news coverage. See State v. Davolt, 207 Ariz. 191, 206, ¶ 50, 84 P.3d 456, 471 (2004) ( The critical inquiry is the 21 ¶47 The trial court denied Kiles motion. the ten-year span and the fact that The court noted Yuma is a growing community with a transient population, which suggested that the most damaging stories simply would be unknown to most people. ¶48 Whether a change of venue must be ordered turns on whether pretrial publicity will probably deprive the party of a fair trial, and the Court reviews the determination for an abuse of discretion. trial court s Cruz, 218 Ariz. at 156, ¶ 12, 181 P.3d at 203 (alterations and internal quotation marks omitted). ¶49 Kiles argues that the pre-trial publicity in Yuma County was such that this Court should presume prejudice to his fair trial rights. media coverage atmosphere. He has not established, however, that the created an outrageous . . . carnival-like Id. at 157, ¶ 15, 181 P.3d at 204 (quoting State v. Atwood, 171 Ariz. 576, 631, 832 P.3d 593, 648 (1992)); see also State v. Bible, 175 Ariz. 549, 567, 858 P.2d 1152, 1170 (1993) ( Although many cases discuss the doctrine, very few cases have actually presumed prejudice due to a carnival or circus atmosphere at trial. ). At most, Kiles brief and the arguments presented below point to regular press coverage over                                                              effect of publicity on a juror s objectivity ) (quoting State v. LaGrand, 153 Ariz. 21, 34, 734 P.2d 563, 576 (1987)). 22 the course of some ten years. Kiles simply has not satisfied the extremely heavy burden of demonstrating that the pre-trial publicity was presumptively prejudicial. See Bible, 175 Ariz. at 564, 858 P.2d at 1167. ¶50 Kiles also argues that State v. Schmid, 109 Ariz. 349, 509 P.2d 619 (1973), requires an automatic change of venue if certain facts are reported by the news media. But that case, which offers suggestions to news organizations to avoid unfair proceedings, simply does not stand for the proposition that any mention of certain information will require reversal. Id. at 353-54, 509 P.2d at 623-24 (suggesting publicity of sensitive information like guilt or innocence, existence and contents of confessions and admissions, identity and credibility of witnesses may result in reversal ). III A ¶51 Over defense objection, the trial court permitted the State to offer both Kiles conviction for aggravated assault and his conviction for attempted aggravated assault to prove the (F)(2) aggravating factor. 1985) (aggravated (attempt), See A.R.S. § 13-1204(A)(8) (Supp. assault); 13-1204(A)(1) A.R.S. (2001) §§ (aggravated 13-1001(A) assault). (2001) When Kiles committed Valerie s murder, a defendant s prior conviction for a felony in the United States involving the use or threat 23 of violence on another person was an aggravating circumstance. A.R.S. § 13-703(F)(2) (1989).15 both convictions in Kiles I. This Court affirmed the use of See 175 Ariz. at 370, 857 P.2d at 1224. ¶52 At the second trial, defense counsel correctly argued that Kiles I is inconsistent with subsequent case law defining the (F)(2) aggravator. As this Court has clarified, if [an] offense could have been committed without the use or threat of violence, the prior conviction does not qualify as an (F)(2) aggravator. State v. McCray, 218 Ariz. 252, 257, ¶ 17, 183 P.3d 503, 508 (2008). For example, because Arizona s attempt statute permits a crime to be committed with a single nonviolent step, an attempted murder did not qualify under (F)(2). v. Williams, 183 Ariz. 368, 382, 904 P.2d Kiles I is inconsistent with these decisions. 437, 451 State (1995). See 175 Ariz. at 370, 857 P.2d at 1224. ¶53 At oral argument, the State argued that Kiles I is the law of this case. The law of the case is a rule of general application that the decision of an appellate court in a case is the law of that case on the points presented throughout all the subsequent proceedings in the case in both the trial and the appellate courts, and no question necessarily involved and decided on that appeal will be considered on a second appeal or writ of error in the same case,                                                              15 The legislature later rewrote the statute to list the crimes that qualify for the (F)(2) aggravator. See 1993 Ariz. Sess. Laws, ch. 153, § 1 (1st Reg. Sess.). 24 provided the facts and issues are substantially the same as those on which the first decision rested, and, according to some authorities, provided the decision is on the merits. State v. Bocharski, 218 Ariz. 476, 489, ¶ 60, 189 P.3d 403, 416 (2008) (quoting State v. King, 180 Ariz. 268, 278, 883 P.2d 1024, 1034 attempted McCray. (1994)). offense Kiles is is correct inconsistent with that the recent use cases of the such as But the Yuma County judge was not free to question this Court s ruling on a legal issue for the subsequent retrial. Nevertheless, the law of the case is a procedural rule, and this Court can recognize that a obsolete by later case law. P.2d at rulings). 1034-35 former ruling has been rendered Cf. King, 180 Ariz. at 278-79, 883 (recognizing court s power to revisit prior Under more recent cases, the attempted aggravated assault conviction does not establish the (F)(2) aggravator. ¶54 The (F)(2) aggravator remains valid, however, because of the other conviction. at 451 (noting that Williams, 183 Ariz. at 382, 904 P.2d reliance on ineligible immaterial when another conviction suffices). conviction is Because Kiles does not challenge the use of his aggravated assault conviction, any error here is harmless beyond a reasonable doubt. See State v. Sansing, 206 Ariz. 232, 237, ¶ 16, 77 P.3d 30, 35 (2003)  (holding error harmless when no 25 reasonable jury could have failed to find aggravating factor established).16 B ¶55 Kiles next contends that because two jurors were not convinced beyond a reasonable doubt that Kiles himself committed the murders of the children, the (F)(8) aggravator should have been stricken. In essence, he argues that an inconsistency between the aggravation-phase jury s verdict and the guilt-phase jury s felony murder verdict renders the (F)(8) aggravator unconstitutional. ¶56 In 2000, the guilt-phase jury convicted Kiles of first degree murder of the two children. In reaching their verdicts, two jurors concluded that the murder of one daughter was felony murder, and five jurors concluded that the murder of the other daughter was felony murder. The remaining jurors concluded the murder of each child was premeditated. ¶57 Before the 2006 sentencing jury could consider the                                                              16 We also reject Kiles argument that Brown v. Sanders, 546 U.S. 212 (2006), requires remand for resentencing. Brown held that in a state like Arizona, in which the [capital] eligibility factors by definition identif[y] distinct and particular aggravating features, if one of them was invalid the jury could not consider the facts and circumstances relevant to that factor as aggravating in some other capacity. Id. at 217. Even if the sentencer s consideration of an invalid eligibility factor . . . skewed its balancing of aggravators with mitigators, reversal is not required if a state appellate court determine[s] the error was harmless or reweigh[s] the mitigating evidence against the valid aggravating factors. Id. (emphasis added). Here, the factor itself remains properly established, and, in any event, because we independently review Kiles sentence, Brown is inapposite. 26 aggravating factors, the trial court charged the jury with determining whether the convictions for first degree murder of the children qualified as death-eligible murders under Tison v. Arizona, 481 U.S. 137 (1987), and Enmund v. Florida, 458 U.S. 782 (1982).17 ¶58 reach The verdict conclusions on form specifically four separate asked the Enmund/Tison jurors issues: to (1) whether Kiles killed each child, (2) whether Kiles attempted to kill each child, (3) whether Kiles intended that a killing take place, and (4) whether Kiles was a major participant in the crime of child abuse and acted with reckless indifference to human life. Ten jurors found that Kiles killed both; eleven found that he attempted to kill both; and twelve jurors found that Kiles both intended a killing to take place and that he was a major participant in the crime of child abuse and acted with reckless indifference to human life. ¶59 After making its Enmund/Tison findings, the jurors                                                              17 Enmund and Tison address the proportionality of capital punishment for felony murder under the Eighth Amendment. See Tison, 481 U.S. at 146-48 (explaining Eighth Amendment issues). In Enmund, the Supreme Court reversed a Florida Supreme Court decision because it affirmed the death penalty . . . in the absence of proof that Enmund killed or attempted to kill, and regardless of whether Enmund intended or contemplated that life would be taken. 458 U.S. at 801. In Tison, the Court concluded that a capital sentence could be appropriate when the defendant exhibits reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death. 481 U.S. at 157-58. 27 were asked whether the State had proven the (F)(8) aggravator. The court instructed the jurors: You must assess the aggravators based upon evidence of the defendant s own actions and mental state. The judge then told the jury that to find the aggravating factor of the defendant being convicted of one or more other homicides, which were committed during the commission of this offense, you may not make your finding based solely upon the trial jury s verdict of guilt on multiple homicides. . . . [Y]ou must find that the other murders were related in time and space and motivation to the first degree murder, which you are considering. This instruction applies to each of the three murders. A temporal or time relationship exists between multiple homicides when it is established beyond a reasonable doubt that the murders were committed within a short span of time. A spatial relationship exists when it is established beyond a reasonable doubt that the victims were killed in close physical proximity to each other. A motivational relationship exists when it is established beyond a reasonable doubt that the victims were killed for a related reason. The jury unanimously found the (F)(8) aggravator was proven beyond a reasonable doubt. ¶60 Kiles arguments with regard to the (F)(8) aggravator miss the mark. First, as the State notes, there is no need for unanimity on a single theory. Cf. State v. Gomez, 211 Ariz. 494, 498 n.3, ¶ 16, 123 P.3d 1131, 1135 n.3 (2005) ( A jury need not be unanimous as to the theory of first degree murder so long as all agree that the murder was committed. ). 28 Second, Kiles argument confuses two separate issues. Enmund/Tison question: The first issue is the whether a felony murder may qualify to make a person eligible for consideration of a capital sentence. The second issue is whether the jury may consider convictions for the murders of the children in determining whether the (F)(8) aggravator was proven as to Valerie. ¶61 the Under the (F)(8) aggravator, jurors are asked whether defendant [has been] convicted of one or more other homicides, which were committed during the commission of this offense, and whether such crimes are motivationally, temporally, and spatially related to the offense considered for a capital sentence. Determining whether the mixed premeditated- murder and felony murder verdicts for the children s deaths made those convictions death-eligible differs from deciding whether the convictions for those murders aggravator for Valerie s death. qualify under the (F)(8) Indeed, at oral argument, Kiles conceded that because he does not challenge his guilt for the slayings of the two children, he is guilty of those crimes. Consequently, we reject Kiles effort to question the jury s findings on the (F)(8) aggravator. IV ¶62 Because the murders were committed before August 1, 2002, we review aggravation, mitigation, and the propriety of the sentence independently under A.R.S. § 13-755(A)-(C) (Supp. 29 2008). 2002 Ariz. Sess. Laws, ch. 1, § 7 (5th Spec. Sess.). conducting such review, we consider the quality and In the strength, not simply the number, of aggravating and mitigating factors. State v. Roque, 213 Ariz. 193, 230, ¶ 166, 141 P.3d 368, 405 (2006) (quoting State v. Greene, 192 Ariz. 431, 443, ¶ 60, 967 P.2d 106, 118 (1998)). A ¶63 The jury found three aggravating circumstances: that the defendant was previously convicted of a felony involving the use or threat of violence on another person, see A.R.S. § 13703(F)(2) (1989), that the defendant committed the offense in an especially heinous, cruel, or depraved manner, see id. § 13751(F)(6) (Supp. 2008), and that the defendant was convicted of one or more other homicides that were committed commission of the offense, see id. § 13-751(F)(8). during the We review the record de novo to determine[] [whether] an error was made regarding a finding of aggravation. Id. § 13-755(B); Anderson II, 210 Ariz. at 354 & n.21, ¶ 119, 111 P.3d at 396 & n.21. 1 ¶64 As previously discussed, it was error to permit the jury to use Kiles attempted aggravated assault conviction to satisfy the (F)(2) aggravator. Kiles previous conviction for aggravated assault, however, proves the (F)(2) aggravator beyond a reasonable doubt. See ¶¶ 51-54, supra. 30 2 ¶65 and Cruelty involves the pain and distress to the victim may be found when the victim consciously experienced physical or mental pain prior to death, and the defendant knew or should have known that suffering would occur. Anderson II, 210 Ariz. at 352 n.18, ¶ 109, 111 P.3d at 394 n.18 (internal quotation marks omitted). ¶66 The evidence shows beyond a reasonable doubt that the murder of Valerie was especially cruel. Valerie remained medical testimony conscious regarding after the defensive Kiles admitted that attack began, wounds and supported the that conclusion. ¶67 Additional evidence supports the (F)(6) aggravator and the version of events Kiles admitted to Hawkins. A pillow with blood on it consistent with a source that continued to move was found in Valerie s bedroom. A transfer stain consistent with a person running a bloody hand along a door was also identified. Blood spatter was found between eighteen and twenty-four inches from the ground, indicating that the source of the blood would be lower toward the floor. The transfer stain on the door, together with spatter on the lower part of the north and south walls of the living room, indicated that either the blood source or the attacker was moving. A piece of the jack itself was found in the bedroom with Valerie s blood on it. 31 This evidence directly contradicts Kiles trial testimony, when, contrary to his earlier admissions, he claimed that when he hit Valerie with the jack, she fell down in a living room chair and never got up.18 ¶68 and The (F)(6) cruelty aggravator was proven as to mental physical cruelty. See State v. Boggs, 218 Ariz. 325, 341, ¶ 78, 185 P.3d 111, 127 (2008) (affirming (F)(6) aggravator based on admissions by defendant corroborated by physical evidence). ¶69 186, Kiles 928 P.2d argument 610 that (1996), State requires v. the (F)(6) finding is incorrect. In (F)(6) because mental cruelty finding Soto-Fong, Court to 187 Ariz. vacate the Soto-Fong, we rejected the the evidence indicated only that one of the defendants thought one of the victims lingered before dying. Id. at 204-05, 928 P.2d at 628-29. In this case the evidence shows that Valerie was conscious after the attack began and thus experienced significant uncertainty as to her ultimate fate. State v. Ellison, 213 Ariz. 116, 142,                                                              18 Kiles separately raises on appeal the denial of his motion for acquittal of the (F)(6) aggravator under Ariz. R. Crim. P. 20 (stating that [i]n an aggravation hearing, . . . on a motion of a defendant . . . , the court shall enter a judgment that an aggravating circumstance was not proven if there is no substantial evidence to warrant the allegation ). Because this case is subject to our independent review, however, our analysis of sufficiency of the evidence supporting an aggravating factor subsumes any Rule 20 issue. Anderson II, 210 Ariz. at 354, ¶ 119 & n.21, 111 P.3d at 396 & n.21. 32 ¶¶ 120-21, 140 P.3d 899, 925 (2006) (internal quotation marks omitted). We distinguished Soto-Fong on similar terms in Boggs. 218 Ariz. at 341, ¶ 78, 185 P.3d at 127. 3 ¶70 To establish the [(F)(8)] aggravator, we evaluate the temporal, spatial, and motivational relationships between the capital homicide and the collateral homicide . . . . Id. at ¶ 79 (internal quotation marks and substitutions omitted). ¶71 Kiles was three victims. children, and Valerie to killing the convicted of first degree murder of all Kiles no longer disputes that he murdered the his own death. testimony Witnesses children because because they were screaming. confirms testified they had that that seen he bludgeoned Kiles the admitted murder and Larry Hawkins testified that Kiles admitted that all three murders had been committed at the same time and that he disposed of the children s bodies. Further, blood from both children was found in their bedroom in Valerie s apartment. Given this evidence, [t]he record demonstrates that all three murders occurred on the same day and in the same apartment . . . it is difficult to imagine a motive for the killings [of [Valerie]. 105, 160 omitted). the children] unrelated to the murder of State v. Tucker (Tucker II), 215 Ariz. 298, 321, ¶ P.3d 177, Further, 200 a (2007) continuing 33 (internal course of quotation criminal marks conduct establishes a motivational link. 81, 185 P.3d at 128. See Boggs, 218 Ariz. at 342, ¶ Accordingly, the (F)(8) aggravator was proven beyond a reasonable doubt. B ¶72 The jury considered a comprehensive mitigation presentation that sought to establish several mitigating facts, including good behavior while in custody; a family history of substance abuse; Kiles substance abuse; good character; and various psychological and character disorders including posttraumatic stress disorder and attention deficit hyperactivity disorder. receive In a urging sentence this of Court less to than conclude death, that Kiles he should emphasizes psychological issues, chronic substance abuse, his good behavior in custody, and his traumatic childhood. He argues both statutory and non-statutory mitigation. 1 ¶73 Kiles makes two claims to establish that his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired. A.R.S. § 13-751(G)(1). He argues that psychological conditions and chronic intoxication establish this statutory mitigator. a ¶74 mental At the penalty phase, Kiles offered testimony of four health experts who suggested 34 that a combination of psychological judgment. and substance This evidence, abuse issues Kiles impaired argues, establishes statutory mitigating factor of diminished capacity. ¶75 Psychiatrist Albert Globus Kiles testified, the See id. based on his review of records and an interview of Kiles, that at the time of the murders Kiles was addicted to and dependent on alcohol and cocaine, that he suffered from chronic depression stemming from childhood, and had experienced psychotic decompensation, a toxic psychosis as a result of too much drugs, such as cocaine, and even to some extent from alcohol. He also testified that Kiles had some impairment due to exposure in utero to alcohol, based on his mother s admitted drinking and pharmaceutical use while pregnant. Kiles family history violence and drug and alcohol abuse. consistent with making him included evidence of His family history was genetically and environmentally predisposed to depression, which in turn may have led to his drug use, while at the same time preventing the development of proper coping mechanisms. of cocaine caused him Dr. Globus concluded that Kiles use to act impulsively, without careful consideration of the consequences. ¶76 Dr. testified. Thomas Gaughan, another psychiatrist, also He interviewed Kiles for five hours and reviewed numerous school, police, Gaughan diagnosed Kiles medical, with and other post-traumatic 35 records. stress Dr. disorder brought on by violence and abuse. He found Kiles reaction to being touched a symptom of that abuse. strong Although Kiles himself claimed his home life was loving, Dr. Gaughan testified that evidence suggested it was not. Based on Kiles description of his childhood and school reports, Dr. Gaughan also diagnosed Kiles with attention disorder, which includes impulsivity. drug and alcohol hyperactivity use, disorder combined and deficit hyperactivity He further opined that with attention post-traumatic stress deficit disorder, decreas[e] the ability to apply [the] sort of rational thought and judgment in terms of inhibiting actions. 19 ¶77 Dr. Ashley Hart also testified. He originally diagnosed Kiles with post-traumatic stress disorder based on the murders themselves. In addition, he stated that Kiles had a narcissistic personality disorder, bipolar disorder, and polysubstance dependencies. He further testified that, although the murders were the result of an irresistible impulse, Kiles knew that his violence and substance abuse were related. ¶78 Finally, Dr. Mark Cunningham, a clinical psychologist, identified factors [that] predisposed [Kiles] behavior. Cunningham s presentation was based on an interview with Kiles and an extensive review of records. to criminal His method was                                                              19 In addition, Dr. compulsive disorder. Gaughan diagnosed 36 Kiles with obsessive to take studies, particularly studies from the U.S. Department of Justice, and apply them to the facts of Kiles life to establish his risk of criminal behavior. ¶79 In rebuttal, the State offered the testimony of Dr. John Scialli, who testified based on his review of numerous psychological and psychiatric reports, and a five-hour interview of Kiles. weapons, He stated that Kiles reported routinely carrying getting retribution. into fights, Because Kiles and feeling birth weight the was need for normal, Dr. Scialli concluded that Kiles did not have fetal alcohol syndrome and that any effect from fetal exposure to alcohol would have been minimal. He also directly contradicted Dr. Gaughan s post- traumatic stress disorder diagnosis. He testified that, in any event, to the disorder judgment Kiles diagnosis was personality does experts that disorder not lead claimed. Kiles along Dr. suffered with the kind of Scialli s from substance an impaired principal anti-social dependencies and intoxication. ¶80 State. Kiles John Moran, a psychologist, also testified for the He stated that the results of a personality test showed had traits consistent with an anti-social personality disorder. ¶81 The opinions offered by the experts indicate Kiles has a personality or character disorder. 37 On balance, however, the expert testimony does not show that Kiles established statutory mitigating factor of diminished capacity. the See A.R.S. § 13-751(G)(1); Tucker II, 215 Ariz. at 323, ¶ 118, 160 P.3d at 202 (rejecting mitigation). similar evidence as proof of statutory Rather, Kiles proved that he suffered from some form of personality disorder, which we consider as non-statutory mitigation. See Tucker II, 215 Ariz. at 323, ¶ 118, 160 P.3d at 202. b ¶82 Kiles claims that his chronic drug abuse at the time of the offense established the statutory mitigator of voluntary intoxication. Voluntary intoxication is a mitigating circumstance under § 13-[751](G)(1) if it significantly impairs a defendant s capacity to conform his conduct to requirements of the law. Kiles I, 175 Ariz. at 374, 857 P.2d at 1228 (citation omitted). But [w]e have frequently found that a defendant s claim of alcohol or drug impairment fails when there is evidence that the defendant took steps to avoid prosecution shortly after the murder, overwhelm or the behavior. when it defendant s appears that ability to intoxication did control physical his not State v. Reinhardt, 190 Ariz. 579, 591-92, 951 P.2d 454, 466-67 (1997). Kiles admitted he attempted to clean up the scene of the crime and disposed of the bodies of the two girls. Accordingly, he has not proven 38 the statutory mitigation of impairment due to abuse of alcohol and drugs. 751(G)(1). not See A.R.S § 13- Nonetheless, because Kiles abuse of intoxicants was disputed by the State s experts, he has proved chronic mitigating factors intoxication as a non-statutory mitigating factor. 2 ¶83 Kiles raises many non-statutory which, he claims, also demonstrate that he has established a capital sentence is inappropriate. a ¶84 Kiles proved by a preponderance of the evidence good behavior in custody through evidence that he was entitled to special privileges in prison and evidence that he was a model prisoner in the Yuma County jail, where he treated staff with the utmost respect and had no disciplinary record in six he less-than-ideal years. b ¶85 Kiles childhood. established that had a For example, Kathy Perrone, who lived with the Kiles family for about a year, recalled that Imojean Kiles was strict, drank heavily, beatings. and administered spankings, whippings, [and] She also stated that Kiles father s death in the early 1980s was hard on him. Imojean Kiles reported to Dr. Gaughan that Kiles father threatened Kiles with a gun and once choked him. Kiles reported seeing his father and mother fight 39 violently. ¶86 The evidence presented is not entirely clear cut, however, because witnesses testified that Kiles home-life was ordinary. For example, Kathy Perrone agreed that the Kiles family had a nice home, that he was a mama s boy, and that she never saw either parent strike him. Similarly, she testified Kiles was a well-liked child who did as he was told during his early adolescence. Another witness, Yolanda Beibrich, testified that in high school Kiles was well-liked, respected his elders, and got along with his peers. Although Kiles did not establish an extraordinarily bad home life, he did establish that his home life was not ideal. c ¶87 As noted above, Kiles established that he suffered from some form of personality disorder and that he was substance dependent at the time of the murders. Accordingly, we consider these factors as non-statutory mitigators. C ¶88 the The State proved three aggravating factors, including multiple-murder weight. Boggs, (internal quotation aggravator, 218 Ariz. marks at which 344, omitted). receives ¶ 93, 185 extraordinary P.3d Valerie s at 130 murder was especially cruel and inflicted both mental and physical pain on her as she remained conscious after the attack began. 40 ¶89 In light of this significant aggravation, mitigation evidence is not particularly compelling. Kiles Although Kiles established that he has been a model prisoner since being taken into custody, this Court accords this mitigating factor minimal weight because of the expectation that prisoners behave in prison. State v. Dann, 220 Ariz. 351, ___, ¶ 141, 207 P.3d 604, 628 (2009). ¶90 The psychiatric testimony, although consistent with a personality disorder, did not establish a sufficient connection to the murder to warrant significant weight; at most it established Kiles bad judgment, not his inability to judge. See Tucker II, 215 Ariz. at 323, ¶ 118, 160 P.3d at 202; State v. Pandeli, 215 Ariz. 514, 533, ¶ 81, 161 P.3d 557, 576 (2007) (noting that insubstantial impairment and defendant s ability to discern right from lesser weight). wrong lead to according such mitigation Kiles argues that this Court should give great weight to the fact that he acted impulsively, suggesting this means he could not control his behavior. not account for the sustained attack But this claim does on Valerie, nor his decision to murder the children. ¶91 Likewise, Kiles non-statutory chronic intoxication claims warrant reduced weight given that his efforts to cover up the crime Reinhardt, demonstrate 190 Ariz. his at knowledge 591-92, 41 951 of P.2d its at wrongfulness. 466-67. In addition, although Kiles established that he was a good kid who had a less-than-ideal childhood, this evidence carries minimal weight because the evidence . . . is far removed from the crime. State v. Armstrong, 218 Ariz. 451, 465-66, ¶ 79, 189 P.3d 378, 392-93 (2008). Kiles was twenty-seven at the time of the murder. ¶92 Taken together, and in light of the significant weight accorded to the (F)(6) and (F)(8) aggravators, the mitigation offered by Kiles is not sufficient to call for leniency. In light of the facts and circumstances of Kiles and his crime, death is the appropriate sentence.20 V ¶93 For the forgoing reasons we affirm the verdict and sentence. _______________________________________ Michael D. Ryan, Justice                                                              20 Kiles raises several issues previously decided by the Supreme Court, the Ninth Circuit Court of Appeals, or this Court to preserve for federal review. These, with one exception, are listed in the attached appendix, along with authority Kiles identifies as having rejected his arguments. The exception is Kiles argument that lethal injection as employed by the State is cruel and unusual. We reject that issue as premature because Kiles may raise in a petition filed pursuant to Arizona Rule of Criminal Procedure 32 any objections to the protocol to be used. State v. Andriano, 215 Ariz. 497, 510 n.9, ¶ 62, 161 P.3d 540, 553 n.9 (2007). 42 CONCURRING: _______________________________________ Rebecca White Berch, Chief Justice _______________________________________ Andrew D. Hurwitz, Vice Chief Justice _______________________________________ W. Scott Bales, Justice _______________________________________ Ruth V. McGregor, Justice (Retired) 43 Appendix Issues preserved for federal review 1) The death penalty is per se cruel and unusual punishment and violates the Eighth and Fourteenth Amendments, and Article 2, § 15 of the Arizona Constitution. Rejected by Gregg v. Georgia, 428 U.S. 153, 186-87 (1976); State v. Harrod (Harrod I), 200 Ariz. 309, 320, ¶ 59, 26 P.3d 492, 503 (2001); State v. Salazar, 173 Ariz. 399, 411, 844 P.2d 566, 578 (1992); State v. Gillies, 135 Ariz. 500, 507, 662 P.2d 1007, 1014 (1983). 2) The imposition death of the statute death unconstitutionally penalty whenever at requires least one aggravating circumstance and no mitigating circumstance exist. Rejected by Walton v. Arizona, 497 U.S. 639, 648 (1990); State v. Miles, 186 Ariz. 10, 19, 918 P.2d 1028, 1037 (1996); State v. Bolton, 182 Ariz. 290, 310, 896 P.2d 830, 850 (1995). 3) The death statute is unconstitutional because it fails to guide the sentencing jury with a limiting definition of who is eligible for the death penalty aggravating circumstances, narrow the class of persons eligible for the death penalty and reasonably justify the imposition of a harsher penalty. broad scope definition of of Arizona s premeditation, aggravating and the factors, expansive the The broad number of offenses under Arizona s felony murder law make death-eligible 44 nearly anyone who is involved in a murder, in violation of the Eighth and Fourteenth Amendments and Article 2, § 15 of the Arizona Constitution. Rejected by State v. Greenway, 170 Ariz. 155, 164, 823 P.2d 22, 31 (1991). 4) Arizona s death statute unconstitutionally defendants to prove their lives should be spared. State v. Fulminante, 161 Ariz. 237, 258, 778 requires Rejected by P.2d 602, 623 (1988). 5) fails Arizona s to require death either penalty statute cumulative unconstitutionally consideration of multiple mitigating factors or that the jury make specific findings as to each mitigating factor. Rejected by State v. Gulbrandson, 184 Ariz. 46, 69, 906 P.2d 579, 602 (1995); State v. Ramirez, 178 Ariz. 116, 131, 871 P.2d 237, 252 (1994); State v. Fierro, 166 Ariz. 539, 551, 804 P.2d 72, 84 (1990). 6) evidence Arizona s statutory scheme for considering mitigating is unconstitutional consideration of that evidence. because it limits full Rejected by State v. Mata, 125 Ariz. 233, 242, 609 P.2d 48, 57 (1980). 7) The statute is unconstitutional because there are no statutory standards for weighing. Rejected by State v. Atwood, 171 Ariz. 576, 645-46 n.21, 832 P.2d 593, 662-63 n.21 (1992). 8) Arizona s death statute insufficiently channels sentencer s discretion in imposing the death penalty. 45 the Rejected by Greenway, 170 Ariz. at 164, 823 P.2d at 31. 9) Arizona s death statute is unconstitutionally defective because it fails to require the State to prove that death is appropriate. Rejected by Gulbrandson, 184 Ariz. at 72, 906 P.2d at 605. 10) The prosecutor s discretion to seek the death penalty unconstitutionally lacks standards, in violation of the Eighth and Fourteenth Amendments and Article 2, §§ 1, 4, and 15 of the Arizona Constitution. Rejected by State v. Salazar, 173 Ariz. 399, 411, 844 P.2d 566, 578 (1992). 11) The constitution requires a proportionality review of a defendant s death sentence which would allow the court to identify cases sufficiently above the murder to justify capital punishment. norm of first degree Rejected by Salazar, 173 Ariz. at 416, 844 P.2d at 588. 12) There is no meaningful distinction between capital and non-capital cases, unconstitutionally making vague each statute. crime the Rejected product by of an Salazar, 173 Ariz. at 411, 844 P.2d at 578. 13) Arizona s capital sentencing scheme unconstitutionally serves no deterrent purpose, exceeds any legitimate retributive aim, is without penalogical justification, and results in the gratuitous infliction of suffering. at 183. 46 Rejected by Gregg, 428 U.S. 14) The conditions and length of appellant s confinement constitute cruel and unusual punishment. Stewart, 215 F.3d 910, 916 (9th Cir. 2000). 47 Rejected by Comer v.