STATE OF ARIZONA v PAUL BRADLEY SPEER
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SUPREME COURT OF ARIZONA En Banc STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) PAUL BRADLEY SPEER, ) ) Appellant. ) ) __________________________________) Arizona Supreme Court No. CR-07-0103-AP Maricopa County Superior Court No. CR2002-010926 O P I N I O N Appeal from the Superior Court in Maricopa County The Honorable Andrew G. Klein, Judge AFFIRMED ________________________________________________________________ TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix By Kent E. Cattani, Chief Counsel Capital Litigation Section John Pressley Todd, Assistant Attorney General Attorneys for State of Arizona DROBAN & COMPANY, P.C. Anthem By Kerrie M. Droban Attorneys for Paul Bradley Speer ________________________________________________________________ H U R W I T Z, Vice Chief Justice ¶1 Paul Bradley Speer was murder and sentenced to death. convicted of first degree This is an automatic appeal pursuant to Arizona Rule of Criminal Procedure 31.2. This Court has jurisdiction under Article 6, Section 5(3) of the Arizona Constitution, and A.R.S. §§ 13-755, 13-4031, and 13-4033 (2001 & Supp. 2008). I. Background Facts and Proceedings Below A. The Burglary ¶2 Womble On March 14, 2002, Speer and his half-brother Chris broke Phoenix.1 children. into an apartment on West Glenrosa Avenue in Adan and Enriqueta Soto lived there with their three No one was at home during the break-in, but a neighbor saw two men trying to open an apartment window and called the police. ¶3 Shortly after the neighbor s call, two men were seen walking toward a nearby apartment complex. Residents of that complex directed police to the apartment of Sabrina and Bill Womble, Speer s mother and stepfather. Speer was found beneath a couch; Chris was found in a closet. After the two were arrested, the officers searched the apartment and found items belonging to the Sotos. B. The Plot ¶4 Speer was held at the Madison Street jail and made telephone calls to family and friends while in custody. The 1 We view the facts in the light most favorable to sustaining the jury s guilty verdict. See State v. Garza, 216 Ariz. 56, 61 n.1, 163 P.3d 1006, 1011 n.1 (2007). 2 Maricopa County prisoner phone Sheriff s calls. Office Most of ( MCSO ) Speer s recorded calls outgoing were to Al Heitzman, with whom Speer s half-brother Brian Womble lived. Al or Brian would occasionally then make three-way calls to others. ¶5 On March 18, Speer asked Al to post his $7,000 bond, stating that he could not win his case unless he could talk to the victims and convince them not to testify. On April 28, Speer to told imprisonment. Al about a plea offer of 6.5 13 years Al connected Bill Womble to the call; Speer asked if Bill s brother would be willing to post bond. ¶6 Speer called again on April 29, asking Brian to sell his two handguns to raise the bond money. he needed the guns to commit suicide. Brian responded that Speer said that Brian s problems were minor compared to Speer s. Speer also said that instead of accepting a plea offer he wanted to convince the witnesses not to testify. ¶7 After Brian said he did not have the money for bond, Speer asked, do you think you can . . . handle some shit for me? Brian responded that he probably could but if I do that, I ll be dead too. Speer suggested that Brian offer the victims his .357 handgun as an inducement to not testify. Speer called again and told Brian that if the witnesses testified, he would get the maximum sentence. 3 ¶8 On April 30, Brian told Speer that he would retrieve his guns from Al s safe deposit box. Speer told Brian to tell the victims that Speer was not involved. instead would employ Plan B. Brian said that he Brian later asked Speer if he should talk to the victims or do his other plan. Answering his own question, Brian said he was going to do his other plan. Speer replied, Okay. ¶9 Yeah, yeah. Go ahead. On May 5, Speer spoke with Brian and Al at length. Initially, Speer tried to pressure Al into posting the bond money by warning that Brian might do something violent. Al, however, refused, and Speer replied that he and Brian would have to go to Plan B. ¶10 On May 13, Speer called Brian to talk about Plan B and told him to make sure you take care of everybody in that house. . . . there s only like two. silencer. Brian said he needed a Speer reiterated that Brian could do the job alone, as there were only two people in there. Speer again reminded Brian that everything in there has to go. ¶11 On May 17, Brian proposed that he apartment and wait for the Sotos to come home. break into the Speer suggested instead that Brian pose as a police officer who needed to take photos for the upcoming trial. Brian again told Speer that he had retrieved his guns; Speer said, make sure you talk to both 4 people. it out. Brian said that he had been to the complex and staked Speer said, Handle business fool, alright? ¶12 On May 19, Speer called Brian again. They referred to a surprise birthday party, and Speer said it would be a waste of a party if Brian did not get both people. Brian told Speer that he now had a silencer and described the effect his gun would have on the Sotos. ¶13 depressed. On May 24, Al told Speer that Brian was severely Speer then asked Brian, Is it pretty sure you re going to . . . you ll be able to get it running tonight? Speer also told him to make sure to throw away the evidence. Speer again asked Brian, I don t have nothing to worry about, about you getting the car together, right? ¶14 Speer and Brian then called Bill Womble and asked if anyone had talked to Sabrina about the burglary trial. Speer reiterated to Bill that Sabrina was on medication at the time and therefore should not remember anything. Speer later asked Brian whether the car window was down when he checked it. Brian replied that there s always a . . . way for . . . water to squeeze in. Speer urged that the plan be executed that night. 5 C. The Murder ¶15 On May 25, 2002, at 3:00 a.m., the Sotos returned home from a party. 911 call. At approximately 5:00 a.m., Enriqueta placed a When EMTs arrived, they found Enriqueta on the living room couch; she had been shot, but her wounds were not fatal. An EMT found Adan lying in bed with his arm around an infant. Adan was dead from a gunshot wound; the infant was unharmed. ¶16 When police arrived, they found the screen for the front window to the apartment removed. Brian s palm prints were later identified on the screen. D. The Aftermath ¶17 On the day after the murder, Speer called Brian and asked him if he got the car running and fixed both parts. Brian said, Yep, perfect. Speer told Brian that he should leave for Nevada and that he needed to get rid of those [engine parts] cause I don t want the . . . grease getting all over . . . my room. Speer and Brian called Bill; Speer told Bill that he could be out of jail in four months and that Bill had raised some rioters. ¶18 Speer called Sabrina the next day. Speer told her that anything Brian had said was the result of drugs. said that the Sotos had been murdered. 6 Sabrina Speer tried to quiet her and told her that if she had to testify she should say that she was on pills at the time of the arrest and remembered nothing. ¶19 On June 10, Speer called Brian. Brian said that one of the Sotos was still alive, but Speer said that he was not worried. On June 19, Speer sent a letter to Brian reminding him to get rid of the engine parts and his shoes. When police later searched Brian s bedroom, they found the letter and a book on silencers. E. Proceedings Below ¶20 A grand jury indicted Speer for six felonies, including first-degree murder, in connection with the events of May 25. The State filed a timely notice of intent to seek the death penalty, alleging four aggravating factors: previously convicted of a serious offense (armed Speer was robbery), A.R.S. § 13-751(F)(2) (Supp. 2008);2 in the commission of the offense, Speer knowingly created a grave risk of death to the Sotos infant, A.R.S. § 13-751(F)(3); the murder was committed in a heinous or depraved manner (witness elimination), A.R.S. § 13-751(F)(6); and Speer committed the murder while in custody, A.R.S. § 13-751(F)(7). 2 At the time of the murder, aggravating circumstances were described in A.R.S. § 13-703(G) (Supp. 2001); the relevant statute is now § 13-751(F). Because the two statutes do not differ in any respect material to this appeal, this opinion cites to § 13-751. 7 ¶21 In January, 2007, the jury returned guilty verdicts on all six counts related to the May 25 shooting, as well as on two counts related to the March 14 burglary. The jury subsequently found all four aggravators proved beyond a reasonable doubt and then determined that Speer should receive a death sentence for Adan s murder. II. Jury Selection and Guilt Phase ¶22 Speer raises seven issues on appeal.3 Two are related to jury selection, two to the guilt phase of the trial, one to the aggravation phase, and two to the penalty phase.4 A. Jury Selection 1. ¶23 Speer first argues that the superior court erred in refusing to excuse certain jurors for cause. A defendant is entitled to a fair trial by a panel of impartial, indifferent jurors. State v. Velazquez, 216 Ariz. 300, 306-07 ¶ 18, 166 P.3d 91, 97-98 (2007) (quoting Morgan v. Illinois, 504 U.S. 719, 727 (1992)). A juror who will automatically vote for the 3 Speer also raises twelve claims about the death penalty in order to preserve them for federal review. These claims, and citations to cases that Speer acknowledges have rejected his arguments, are set out verbatim in the Appendix. 4 Speer does not challenge his conviction or sentence for any crime other than first degree murder. 8 death penalty without circumstances will impartiality. considering not Id. meet the this (quoting presence threshold Morgan, 504 of mitigating requirement U.S. at of 729). However, a court should not strike a juror willing to put aside his opinions and base his decisions solely upon the evidence. Id. at 307 ¶ 19, 166 quotation marks omitted). P.3d at 98 (citations and internal Refusal to strike a juror for cause is reviewed for abuse of discretion. State v. Cruz, 218 Ariz. 149, 158 ¶ 28, 181 P.3d 196, 205 (2008). ¶24 Speer contends that seven potential jurors should have been excused for cause. The defense, however, used peremptory challenges to remove all but one of these jurors. Even if a defendant is forced to use a peremptory challenge to remove a juror who should have been excused for cause, . . . an otherwise valid criminal conviction will not be reversed unless prejudice is shown. Id. (citing State v. Hickman, 205 Ariz. 192, 196-97 ¶¶ 20-21, 68 P.3d 418, 422-23 (2003)). We thus need consider only the single juror who served on the trial jury, Juror 29. ¶25 Juror 29 selected the following statement in the jury questionnaire as most closely representing his views: I feel the death penalty should be imposed in all cases as long as the State proves beyond a reasonable doubt that a person killed another human being with premeditation. a reasonable doubt. He underlined beyond In the same questionnaire, the juror wrote 9 that when I was younger, I felt an eye for an eye, but now I want to know why before I decide. During voir dire, he agreed that he might not . . . vote to impose death if a person had a pretty tough upbringing or mental health problems, stating, I need to hear everything before I decide. Given Juror 29 s statements, the trial court s refusal to strike him for cause was not an abuse of discretion. 2. ¶26 The trial court excused Jurors 136, 250, and 427 for cause over defense improperly struck. to the United objections. States ¶ 14, 166 P.3d at 97. because argues that all were Under the Sixth and Fourteenth Amendments Constitution, entitled to an impartial jury. simply Speer they a criminal defendant is Velazquez, 216 Ariz. at 306 Jurors cannot be dismissed for cause voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. Witherspoon v. Illinois, 391 U.S. 510, 522 (1968) (finding Sixth Amendment violation); see also State v. Anderson (Anderson I), 197 Ariz. 314, 324 ¶ 23 & n.5, 4 P.3d 369, 379 & n.5 (2000) (finding violation of Ariz. R. Crim. P. 18.5(b) when jurors dismissed rehabilitation on voir dire). without opportunity for A juror may be removed for cause, however, if his views on the death penalty would prevent or substantially impair the performance of his duties as a juror in 10 accordance with his instructions and oath. Wainwright v. Witt, 469 U.S. 412, 424 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45 (1980)); accord Anderson I, 197 Ariz. at 318-19 ¶ 9, 4 P.3d at 373-74. [J]urors who state unequivocally that they could never impose the death penalty regardless of the facts of the particular case are therefore properly removed. Anderson I, 197 Ariz. at 318 ¶ 7, 4 P.3d at 373 (citing Witherspoon, 391 U.S. at 514). We review the strike of a potential juror for abuse of discretion. Velazquez, 216 Ariz. at 306 ¶ 13, 166 P.3d at 97. ¶27 On voir dire, Juror 136 said I m not quite sure . . . if I will be able to do a death sentence. The juror then said that it s not that I m against it, it s just that I don t know if I would be able to put someone else s life in my hands beyond a reasonable doubt. On examination by defense counsel, the juror reiterated that my problem . . . is . . . beyond a shadow of a doubt. Okay. Can you prove to me beyond a shadow of a doubt enough for me to accept that this crime happened? The juror then stated, I could listen to the evidence, but can I say that he is guilty and his life should be taken? do that. No, I can t Given these statements, the trial court did not abuse its discretion in granting the State s motion to strike. ¶28 the Juror 250 indicated on the questionnaire that imposing death penalty would be very 11 scary for me. Although initially suggesting on voir dire that she might be able to impose death, when asked by the court for a definitive answer, the juror said, I guess I d have to say I don t think I can vote for the death penalty. In light of this response, the court did not abuse its discretion in excluding this juror. ¶29 Juror uncomfortable 427 with initially the judge s instructions. death penalty, the juror she that, would although follow the However, the juror later stated, I don t know that I m capable of it. State, indicated responded On further questioning by the affirmatively to the question of whether your ability to be fair and impartial is substantially impaired by your not knowing whether you could actually vote for the death penalty. The court later asked the same question, and the juror responded, From where I sit right now, I believe it could be an impairment. to be responsible for I believe the fact that I don t wish that may sway me. Given these statements, the court did not abuse its discretion in striking the juror. B. Guilt Phase 1. Spoliation of Evidence ¶30 MCSO contracted with Tenetix, Inc. for its jail phone call recording system. MCSO kept the recordings on digital 12 cassette tapes. After being stored for six months, tapes were reused and the old data recorded over. Tenetix kept a database with information about prisoner calls. A recording could be located Tenetix, by sending search criteria to which would generate a list of matches, indicating the cassette containing each call. Either law enforcement or a defendant could request that a cassette be tagged, in which event the tape was not recorded over. ¶31 In June 2002, Phoenix police detectives obtained court order to listen to calls from Speer to Al Heitzman. a The detectives did not listen to every call that came up as a result of Tenetix s search and did not preserve some calls to which they listened. separate The cassette detectives tapes both twenty-seven tagged calls and that copied they onto deemed relevant to their murder investigation. ¶32 Brian Womble s attorney later filed a standard discovery motion, requesting [a]ll statements of the defendant and anyone who will be tried with defendant. State produced the twenty-seven recordings.5 In response, the The discovery request was made within six months of the date of the phone calls. When the request was made, Speer s attorney knew that MCSO policy was to reuse cassettes after six months. 5 Speer and Brian Womble were both charged with the murder. Their trials were severed after the State responded to the discovery motion. 13 ¶33 Nine recordings listed in the Tenetix search were not copied or tagged by the detectives and were thus destroyed when MCSO reused the tapes. Speer moved to suppress the twenty-seven preserved recordings. ¶34 The superior court held an evidentiary hearing. One of the police detectives testified that he knew that any call having to do with the murder had to be preserved whether it helped the defense or the prosecution and that anything about the homicide would have been preserved. The court denied the motion to suppress, finding that Speer had made no showing that the unpreserved conversations contained relevant or exculpatory information. ¶35 The court also found no bad faith by the State. Speer later requested the following jury instruction, pursuant to State v. Willits, 96 Ariz. 184, 393 P.3d 274 (1964): If you find that the state lost, destroyed, or failed to preserve evidence whose contents or quality are important to the issues in this case, then you should weigh the explanation, if any, given for the loss or unavailability of the evidence. If you find that any such explanation is inadequate, then you may draw an inference unfavorable to the state, which itself may create a reasonable doubt as to the defendant s guilt. The superior court denied the instruction but ruled that Speer could argue to the jury that the State had failed to preserve relevant evidence. 14 a. ¶36 Speer contends that the trial court erred in denying his motion to suppress the twenty-seven recordings. decision whether discretion. (2003). to suppress evidence for We review a an abuse of State v. Dean, 206 Ariz. 158, 161 ¶ 9, 76 P.3d 429 [U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law. Arizona v. Youngblood, 488 U.S. 51, 58 (1988). the Arizona Constitution is the same. The test under State v. Youngblood, 173 Ariz. 502, 508, 844 P.2d 1152, 1158 (1993). ¶37 is The critical distinction for constitutional purposes between material useful evidence. exculpatory evidence and potentially Illinois v. Fisher, 540 U.S. 544, 549 (2004) (per curiam); see also State v. O Dell, 202 Ariz. 453, 458 ¶ 13, 46 P.3d 1074, 1079 (App. 2002) (stating that the mere possibility that destroyed evidence might be exculpatory does not establish a constitutional violation). Youngblood held that [t]he presence or absence of bad faith for purposes of the due process clause must necessarily turn on the police s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed. 488 U.S. at 56 n*. The Supreme Court had previously explained that the Due Process Clause is violated 15 only when the exculpatory value of evidence is apparent. California v. Trombetta, 467 U.S. 479, 489 (1984). ¶38 Under the case law, the trial court did not abuse its discretion in denying Speer s motion to suppress. establish that the destroyed tapes Speer did not contained material exculpatory evidence or that the police acted in bad faith. See State v. Bocharski (Bocharski I), 200 Ariz. 50, 59 ¶ 43, 22 P.3d 43, 52 (2001) (stating that destruction of evidence was not a violation of due process when the defendant fails to provide even a hint of what exculpatory evidence there might have been ). b. ¶39 Speer also contends that denying the Willits instruction. abuse of discretion. the trial court erred in We review that decision for State v. Bocharski (Bocharski II), 218 Ariz. 476, 486-87 ¶ 42, 189 P.3d 403, 413-14 (2008). ¶40 show To receive a Willits instruction, the defendant must (1) that the state failed to preserve material and reasonably accessible evidence having a tendency to exonerate him, and (2) that this failure resulted in prejudice. State v. Murray, 184 Ariz. 9, 33, 906 P.2d 542, 566 (1995); accord State v. Smith, 158 Ariz. 222, 227, 762 P.2d 509, 514 (1988). A trial court does not abuse its discretion by denying a request for a Willits instruction when a defendant fails to establish 16 that the lost evidence would have had a tendency to exonerate him. State v. Fulminante, 193 Ariz. 485, 503 ¶ 62, 975 P.2d 75, 93 (1999). ¶41 The The superior court did not abuse its discretion here. police detective testified that he preserved conversations relevant to the homicide investigation. any Speer did not demonstrate that the erased tapes might have exonerated him or even mitigated his participation in the murder plot. because the preserved nine call, calls and at issue incriminating occurred calls after continued Indeed, the up first to and after the murder, there is no logical inference that these nine had a tendency to exonerate. 2. Prosecutorial Misconduct ¶42 Speer refusing to next declare contends a that mistrial for the trial court prosecutorial erred in misconduct. Because the trial court is in the best position to determine the effect of a prosecutor s [actions], we review for an abuse of discretion. State v. Newell, 212 Ariz. 389, 402 ¶ 61, 132 P.3d 833, 846 (2006). When a timely objection is made, reversal is reasonable warranted misconduct denying if could the a have defendant likelihood affected the a trial. fair exists jury s that verdict, State v. the thereby Anderson (Anderson II), 210 Ariz. 327, 340-41 ¶ 45, 111 P.3d 369, 382-83 17 (2005) (citation omitted). Absent objection, however, review is only for fundamental error. State v. Morris, 215 Ariz. 324, 335 ¶ 47, 160 P.3d 203, 214 (2007). a. ¶43 Only one incident inappropriate conduct. jury but in earshot cited by Speer involves Outside the presence of the judge and of Speer, the prosecutor told a female defense attorney to be careful about contracting gonorrhea from Speer. The defense moved that the prosecutor be removed. After the prosecutor claimed that she did not mean offense by the statement, but was expressing genuine concern regarding communicable diseases, the trial court denied the motion. ¶44 was Whatever her motivations, the prosecutor s statement entirely unprofessional. Speer has not demonstrated, however, that this isolated instance of misconduct outside the presence of the jury deprived him of a fair trial. See State v. Armstrong, 208 Ariz. 345, 357-58 ¶¶ 60-64, 93 P.2d 1061, 1073-74 (2004) (noting that without more, acrimonious and inappropriate remarks outside the presence of the jury do not warrant reversal). b. ¶45 Speer also alleges that two instances of misconduct occurred in front of the jury. The first involved the questioning of a detective who listened to the jail tapes; the 18 prosecutor asked him if Speer s attorney knew that recordings were destroyed after six months. After the court rejected a defense objection, the detective testified that the attorney was aware. Defense counsel then moved for a mistrial, arguing the State had improperly shifted the burden of proof through the question. The trial court denied the motion, but instructed the jury that the burden of proving guilt beyond a reasonable doubt never shifts. ¶46 The trial court did not err in denying a mistrial. The prosecutor never suggested that the defense had the burden of proving Speer s innocence. Rather, the questioning appeared designed to rebut any contention of bad faith on the part of the police, by suggesting that both the State and the defense had a chance to preserve the nine calls but failed to do so. In any event, any conceivable prejudice was cured by the instruction. ¶47 The second incident occurred during the guilt phase closing argument. burden in Speer moved improperly phases. this for The phase a implied As the prosecutor of proof mistrial, that trial stated beyond contending there judge the a correctly had reasonable that necessarily State this would found in the doubt. statement be future denying the motion, the prosecutor was talking about the particular phase only to emphasize production. that Speer did not have the burden of Indeed, the judge noted the various times that 19 defense counsel, the prosecutor, and the court itself had previously made plain to the jury that the trial could involve three phases. c. ¶48 Speer also contends cumulative misconduct. that reversal is warranted for [E]ven if there was no error or an error was harmless and so by itself does not warrant reversal, an incident may nonetheless contribute persistent and pervasive misconduct. to a finding of State v. Roque, 213 Ariz. 193, 228 ¶ 155, 141 P.3d 368, 403 (2006) (citation omitted). ¶49 Speer s argument fails. The prosecutor made at least one unprofessional comment outside the presence of the jury. But, as warrant we a have new noted trial, above, nor this does the statement record alone does demonstrate not other persistent and pervasive misconduct.6 6 Speer s brief summarily alleges additional misconduct but fails to elaborate on any cited instance. None of these incidents involved misconduct. In the first incident, the prosecutor asked a police detective on redirect if he had fingerprinted the Sotos children. The trial court denied defendant s motion for mistrial because cross-examination had focused on poking holes in the police investigation. In the second incident, the prosecutor also asked the detective if he had questioned Brian Womble about the state of the Sotos apartment at the time of the shooting. Speer contends that this question was a negative comment on Brian s assertion of his Fifth Amendment rights. Because the officer responded in the negative to the question, it is difficult to perceive prejudice, and the superior court later instructed the jury that no negative inference was to be 20 III. Aggravation Phase ¶50 Speer contends that the evidence was insufficient to prove the grave risk of death aggravator. This aggravator requires that [i]n the commission of the offense the defendant knowingly created a grave risk of death to another person or persons in addition to the person murdered during the commission of the offense. A.R.S. § 13-751(F)(3) (Supp. 2008). acts when, knowingly with respect to conduct A person or to a circumstance described by a statute defining an offense, . . . [the] person is aware or believes that the person s conduct is of that nature or that the circumstance exists. A.R.S. § 13- 105(10)(b) (Supp. 2008). ¶51 In typically evaluating determine sufficiency whether supporting the jury verdict. Ariz. 1, 6 ¶ 27, 191 P.3d there of is the evidence, substantial we evidence See, e.g., State v. Wallace, 219 164, 169 (2008). Because Speer committed the murder before August 1, 2002, however, we today instead must established doubt. independently the aggravating determine whether circumstance the beyond a State has reasonable A.R.S. § 13-755(A) (Supp. 2008); Anderson II, 210 Ariz. _________________________ drawn from an accused s silence. Finally, during a bench conference in the penalty phase, defense counsel complained that the prosecutor had been too loud in off-the-record statements, and the jury could hear her. The court responded that it had not observed this and could not perceive any negative effect. 21 at 354 ¶ 119 & n.21, 111 P.3d at 396 & n.21; see also State v. Andriano, 215 Ariz. 497, 506 n.5, 161 P.3d 540, 549 n.5 (2007) (noting that traditional sufficiency analysis is subsumed under independent review). ¶52 The (F)(3) aggravator has three components: (1) the murderous act created a grave risk of death to a third person; (2) defendant knowingly created such a risk ; and (3) there was a real and substantial likelihood that the third person would be killed. State v. Tucker (Tucker II), 215 Ariz. 298, 309 ¶ 21, 160 P.3d 177, 188 (2007). The State argues that this aggravator was established because Speer sent Brian Womble to shoot the Sotos at night, knowing that a baby slept in their bedroom.7 Speer does not challenge that the State proved the first third and components of the aggravator. He claims, however, that the State did not prove the knowledge component because any knowledge obtained by Brian on the night of the murder cannot be imputed to Speer and he did not personally have the requisite knowledge. A. Imputation of Brian Womble s Knowledge to Speer ¶53 We have not previously discussed whether the knowledge of the person who carries out a murder can be imputed to an 7 Enriqueta, an intended murder victim, does not qualify as a third person for establishing the (F)(3) aggravator. State v. McCall, 139 Ariz. 147, 160-61, 677 P.2d 920, 933-34 (1983). 22 absent defendant for purposes of establishing the (F)(3) aggravator.8 We have, however, addressed a similar question in the of context the (F)(6) aggravator. especially heinous, cruel depraved State v. Carlson involved a defendant who hired two men to kill her mother. 48 P.3d 1180, 1184-85 (2002). 202 Ariz. 570, 574-75 ¶¶ 5-6, The victim underwent several surgeries before succumbing to her injuries. P.3d at 1185. or Id. at 575 ¶ 8, 48 In sentencing Carlson to death, the trial court found the murder especially cruel. Id. ¶ 10. Our analysis of the (F)(6) aggravator in that case began from the premise that [t]he specified penalty scheme manner, the eligible. statutory are class designed of first aggravators in to in narrow, degree Arizona s a murderers death constitutional who are death Id. at 582 ¶ 45, 48 P.3d at 1192 (quoting State v. Soto-Fong, 187 Ariz. 186, 202, 928 P.2d 610, 626 (1996)). In light of of this purpose, Carlson rejected a tort concept foreseeability in favor of the criminal law concept of mens rea. Id. ¶ 47. The Court found that the evidence did not establish that Carlson intended or knew that the murder would be 8 In State v. Holsinger, the defendant hired Cagnina to murder his wife s stepfather. 115 Ariz. 89, 91, 563 P.2d 888, 890 (1977). Cagnina broke into the stepfather s house and killed a third person, but only wounded the intended victim. Id. The trial judge found the grave risk of death aggravator established as to Holsinger. Id. at 98, 563 P.2d at 897. This Court affirmed Holsinger s death sentence, but the opinion did not analyze the propriety of the (F)(3) aggravator. See id. 23 carried out in a cruel manner because she was not present during the commission of the crime, did not supply the murder weapon, and was not involved in planning the details or method of the murder. ¶54 Id. The same rationale guides us today. Even if we assume arguendo that Brian Womble had the requisite knowledge of the risk to the infant while carrying out the murder, we do not impute that knowledge to Speer. Rather, we must address the issue of Speer s personal knowledge. B. Speer s Knowledge ¶55 In evaluating the (F)(3) knowledge requirement, State v. McGill, 213 Ariz. 147, 140 P.3d 930 (2006), is instructive. McGill had apartment set . . . two people us[ing] on enough fire . . . gasoline to in cause structure to quickly become engulfed in flames. ¶ 29, 140 P.3d at 937. a very small the entire Id. at 154 Although upholding the (F)(3) aggravator as to persons whom McGill knew were in the apartment, we stated that [t]he trial court correctly granted McGill s motion to dismiss the aggravator as it related to [a person in an attached apartment] because McGill apartment was occupied. ¶56 did not know that the attached Id. ¶ 27. In contrast, in State v. Fierro, 166 Ariz. 539, 804 P.2d 72 (1990), we found knowledge established. 24 Fierro had fired several bullets at the victim, who had exited a car. bullet struck [the victim] and two bullets struck One the windshield[,] . . . narrowly missing a third person who was seated in the car. Id. at 550, 804 P.2d at 83. We held that the record supports the finding that Fierro had to have been aware of [the third person s presence] in the car, because the victim exited on the passenger side, one or both car doors remained open, the interior light remained on, and the third person called out to the victim several times. ¶57 Id. There is evidence that Speer knew that children lived in the Soto apartment and that the murder would be committed at night. There is also evidence that Speer knew that a child slept in the parent s bedroom, as a crib was likely in the room at the time of the burglary. Speer s knowledge that the child would be placed in danger by the murder plot can, of course, be established by circumstantial evidence. But, on independent review, we are unable to conclude beyond a reasonable doubt that Speer knew that the plan to murder the Sotos would place the infant in danger. ¶58 The evidence does not establish beyond a reasonable doubt that Speer knew the murder would take place in the Soto s bedroom. Nor does it establish that he knew that the murder would take place in such a way as to endanger the child, who 25 apparently was not in the crib at the time of the murder but instead under the sheets in the parents bed. ¶59 Rather, the evidence establishes at most that Speer knew that a child would be present somewhere in the apartment. Speer was undoubtedly 105(10)(c) (defining criminally reckless, recklessly ), but see we A.R.S. cannot § 13- conclude beyond a reasonable doubt that he was aware or believe[d], see A.R.S. § 13-105(10)(b) (defining child would be in the zone of danger. knowingly ), that the We therefore find that the State did not establish the (F)(3) aggravator. IV. Penalty Phase A. Causal Nexus ¶60 Speer argues that Arizona law unconstitutionally limits mitigation by requiring a causal nexus. See Tennard v. Dretke, 542 U.S. 274, 287 (2004) (holding that a jury cannot be prevented from considering mitigating evidence solely because the evidence has no causal nexus to a defendant s crimes). ¶61 does The relevant statute, A.R.S. § 13-751(G) (Supp. 2008), not murder. require a causal nexus between mitigation and the Rather, the statute allows the jury to consider as mitigating circumstances any factors proffered by the defendant or the state that are relevant in determining whether to impose 26 a sentence less than death, including any aspect of the defendant s character, propensities or record and any of the circumstances superior of court the offense. specifically Id. (emphasis instructed the added). jury The that, in addition to specific mitigating factors claimed by Speer, it could consider anything else about the commission of the crime or Paul against Speer s background imposing the death or character penalty. that would Thus, the mitigate jury was entirely free to consider all mitigating evidence, whether or not it had a causal nexus to the murder. B. Closing Argument ¶62 improperly Speer contends that the prosecutor s closing argument limited the jury s consideration of mitigating factors by urging that evidence lacking a causal nexus to the crime should not be given weight. Speer did not object to this argument, so review is for fundamental error. Anderson II, 210 Ariz. at 349-50 ¶ 95, 111 P.3d at 391-92. ¶63 There is no error, let alone fundamental error. As Speer concedes, Anderson II held that although a jury may not be prevented from hearing mitigation evidence lacking a causal nexus to the crime, absence of such a nexus can be considered in evaluating the strength of that evidence. 27 Id. at 350 ¶ 97, 111 P.3d at 392; accord State v. Pandeli, 215 Ariz. 514, 526 ¶ 32, 161 P.3d 557, 569 (2007). C. Presumption of Death ¶64 Speer contends that Arizona s death penalty sentencing statutes unconstitutionally create a presumption of death by placing the burden on a defendant to prove that mitigation is sufficiently substantial to call for leniency. ¶65 Under A.R.S. § 13-751(C), the defendant has the burden of establishing the existence of mitigating circumstances by a preponderance of the evidence. Our statutes further provide that [t]he trier of fact shall impose a sentence of death if the trier of circumstances fact . . . finds and one then or more determines . . . that aggravating there are no mitigating circumstances sufficiently substantial to call for leniency. we have A.R.S. § 13-751(E). made plain that presumption of the jury this statutory Neither death. persuading Contrary to Speer s argument, party that the scheme bears mitigation contains the is no burden of sufficiently substantial to call for leniency; that determination is not a fact question to be decided based on the weight of the evidence, but rather is a sentencing decision to be made by each juror based upon the juror s assessment of the quality and significance of the mitigating evidence that the juror has found 28 to exist. State ex rel. Thomas v. Granville (Baldwin), 211 Ariz. 468, 473 ¶ 21, 123 P.3d 662, 667 (2005). ¶66 Indeed, State v. Harrod, 218 Ariz. 268, 183 P.3d 519 (2008), rejected the argument that Speer now raises. The trial court in Harrod instructed the jury that [i]f no jurors find the defendant proved any mitigation by a preponderance of the evidence, you must return a verdict of death. 183 P.3d at 532. Id. at 281 ¶ 49, We held that the instruction did not create a presumption of death and did not violate the Eighth Amendment so long as evidence. jurors are allowed to consider any mitigating Id. (citing Tucker II, 215 Ariz. at 317 ¶ 73, 160 P.3d at 196). We also said that it was permissible to give an instruction that a juror must vote to impose a sentence of death if he or she determines there is no mitigation at all or none sufficiently substantial to warrant a sentence less than death. Id. (citing Tucker II, 215 Ariz. at 318 ¶ 74, 160 P.3d at 197). D. Verdict Form ¶67 Speer contends that the trial court erred in refusing to provide the jury a special verdict form concerning mitigating factors. We have repeatedly rejected this argument. See, e.g., Tucker II, 215 Ariz. at 319 ¶ 84, 160 P.3d at 198; Roque, 213 Ariz. at 226 ¶ 141, 141 P.3d at 401. 29 E. Residual Doubt ¶68 The superior court rejected Speer s proposed instruction on residual doubt as a mitigating circumstance and also denied his request to argue residual doubt as a mitigating circumstance. at 279-80 The court acted correctly. ¶¶ 39-46, constitutional evidence ¶ 133, or during 181 P.3d 183 P.3d statutory right the at penalty 217 at to phase); (holding See Harrod, 218 Ariz. 530-31 present Cruz, that 218 a (finding residual Ariz. no doubt at residual 170 doubt instruction is not required by Arizona law (citing State v. Garza, 216 Ariz. 56, 70 ¶ 67, 163 P.3d 1006, 1020 (2007))). F. Mistrial Motion 1. ¶69 During the penalty phase, trial Juror 7 attended a social event and sat next to a deputy county attorney. discovering her neighbor was a juror, herself and promptly notified the court. the attorney After excused The court and counsel questioned Juror 7 about the incident before trial the next morning. During the questioning, an MCSO deputy brought Speer into the courtroom in handcuffs. The court immediately asked the deputy to bring Speer back in a few minutes and excused the juror. 30 ¶70 Speer s attorney moved for a mistrial. The court denied the motion, but offered to dismiss Juror 7 and seat the last remaining alternate. Speer s counsel declined the offer because he believed that Juror 7 was favorable to returning a life sentence. ¶71 Juror 7 was then brought back into the courtroom. She stated that seeing Speer in handcuffs did not affect her views about anything having to do with the case; she already knew that Speer was in jail from the trial evidence. After Speer conferred with counsel, the court went through a colloquy with him and found that he made a knowing and voluntary waiver of the court s offer to dismiss Juror 7. 2. ¶72 Mistrial is the most dramatic remedy for trial error and should be granted only when it appears that justice will be thwarted unless the jury is discharged and a new trial granted. State v. Dann, 205 Ariz. 557, 570 ¶ 43, 74 P.3d 231, 244 (2003). We review the denial of a motion for mistrial for abuse of discretion. State v. Jones, 197 Ariz. 290, 304 ¶ 32, 4 P.3d 345, 359 (2000). ¶73 from A capital defendant is generally entitled to be free visible restraints in the courtroom during sentencing proceedings; a trial court abuses its discretion in allowing visible restraints in the absence of compelling circumstances, 31 such as security concerns. Deck v. Missouri, 544 U.S. 622, 633 (2005); State v. Gomez, 211 Ariz. 494, 502-03 ¶¶ 40-42, 123 P.3d 1131, 1139-40 (2005). Reversal is required for a Deck violation unless the State can demonstrate harmless error. Deck, 544 U.S. at 635. ¶74 On the other hand, the inadvertent exposure of a handcuffed or shackled defendant to members of the jury outside the courtroom is not inherently prejudicial, and a defendant is not entitled prejudice. to a new trial absent a showing of actual State v. Apelt, 176 Ariz. 349, 361, 861 P.2d 634, 646 (1993); see State v. Johnson, 147 Ariz. 395, 399, 710 P.3d 1050, 1054 (1985) (noting that when several jurors inadvertently saw the defendant in custody while on the way to the courtroom the relevant question was whether the defendant was prejudiced by what the jury saw ); State v. Mills, 196 Ariz. 269, 272 ¶¶ 9-12, 995 P.2d 705, 708 (App. 1999) (finding no error in defendant superior was court s twice seen refusal by to jurors grant in a mistrial restraints when outside courtroom because defendant had not established prejudice); see also State v. Hernandez, 4 So. 3d 642, 658 (Fla. 2009) (holding trial court did not err in refusing to grant a mistrial after juror saw person he thought was the defendant in shackles in the courthouse hallway). 32 ¶75 In this case, a single juror saw Speer brought into the courtroom in restraints during a preliminary proceeding. find this case restrained more prisoner during trial. analogous during to inadvertent transportation than exposure to We to a restraint Because Speer was not restrained during trial, the considerations that led the Supreme Court to find inherent prejudice in Deck are not present. See 544 U.S. at 630-32 (noting that shackling during trial undermines presumption of innocence, interferes with right to assistance of counsel, and diminishes dignity of process); id. at 633 (noting that shackling during trial suggests that defendant is danger to the community). ¶76 Given Juror 7 s statements, the superior court did not abuse its discretion in finding that Speer suffered no prejudice from the incident. Moreover, because only one juror saw Speer in restraints, the trial court s offer to seat an alternate would have obviated any prejudice. Having rejected that offer, Speer cannot now claim error. V. Independent Review ¶77 2002, Because Speer committed the murder before August 1, this aggravation sentence. Court and independently mitigation and reviews the the propriety findings of the of death A.R.S. § 13-755(A) (Supp. 2008); Anderson II, 210 33 Ariz. at 354 ¶ 119 & n.21, 111 P.3d at 396 & n.21. the quality and the strength, not aggravating and mitigating factors. simply the We consider number, of Roque, 213 Ariz. at 230 ¶ 166, 141 P.3d at 405 (citation and internal quotation marks omitted). ¶78 Although Speer s counsel questioned the propriety of a death sentence at oral argument, his briefs on appeal did not address this issue. We have reminded capital defense counsel on two recent occasions of their professional obligation to take advantage of all appropriate opportunities to argue why death is not a suitable punishment for their client, and not to simply rely on this Court s statutory duty to review the record. Garza, 216 Ariz. at 71 ¶ 74 & n.16, 163 P.3d at 1021 & n.16 (citing ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (2003)); Morris, 215 Ariz. at 330 ¶ 76 & n.10, 160 P.3d at 209 & n.10 (same). We emphasize that admonition again today. ¶79 issue, Despite the failure of defense counsel to brief the we evidence are of independently penalty. directed by A.R.S. § 13-755 aggravating and mitigating determine whether death is to review circumstances the the and appropriate Garza, 216 Ariz. at 71-72 ¶ 74, 163 P.3d at 1021-22. We do so below. 34 A. Aggravating Circumstances ¶80 The jury found de novo whether determine proved. 191 ¶¶ four aggravating the circumstances. circumstances aggravating We were A.R.S. § 13-755(A); State v. Cromwell, 211 Ariz. 181, 52-53, 119 P.3d 448, 458 (2005). We have already concluded that the (F)(3) aggravator was not proved beyond a reasonable doubt. See ¶¶ 50-59, supra. Speer does not contest the other three aggravating circumstances, and we conclude that each was proved beyond a reasonable doubt. 1. ¶81 An aggravating circumstance is established when [t]he defendant was previously convicted of a serious offense, whether preparatory or completed. A.R.S. § 13-751(F)(2) (Supp. 2008). Robbery is a serious offense. State proved that Speer was A.R.S. § 13-751(I)(8). convicted of armed The robbery on December 1, 1998. 2. ¶82 A elimination 751(F)(6). murder is committed especially for heinous the or purpose depraved of witness under § 13- Tucker II, 215 Ariz. at 312 ¶ 39, 160 P.3d at 191. Witness elimination is established when the murder victim is a witness to person from some other testifying crime, and about the 35 is killed other to crime. prevent that State v. Johnson, 212 Ariz. 425, 439 ¶ 57, 133 P.3d 735, 749 (2006). The State proved that Speer had Brian kill Adan so that Adan would be unable to testify in Speer s burglary trial. 3. ¶83 An aggravating circumstance is established if [t]he defendant committed the offense while in the custody of or on authorized or unauthorized release from the state department of corrections, a law enforcement agency or a county or city jail. A.R.S. § 13-751(F)(7). The murder in this case was committed while Speer was on parole from his armed robbery conviction and in the custody of the MCSO on the burglary charge. B. Mitigating Circumstances ¶84 Speer claimed some twenty-three mitigating factors at trial.9 Speer had the burden of proving the existence of any claimed mitigating factor. A.R.S. § 13-751(C). The State 9 The claimed factors were: 1) the defendant s capacity to appreciate the wrongfulness of his conduct or conform his conduct to the requirements of the law was impaired; 2) minor participation; 3) age; 4) history of family instability; 5) history of family tragedy; 6) parental domestic violence; 7) parental drug and alcohol abuse; 8) genetic propensity towards addiction; 9) genetic propensity towards mental illness; 10) low IQ; 11) learning disability; 12) long-standing substance abuse disorder/addiction to drugs and alcohol; 13) co-defendant suffered from mental illness at the time of the crime; 14) cultural trauma; 15) physical abuse; 16) sexual abuse; 17) emotional abuse; 18) neglect; 19) poverty; 20) institutional failure/trauma; 21) mercy; 22) defendant suffered from any form of mental disorder; and 23) any other relevant factor. 36 contested a evidence. number of these factors and presented contrary In light of Speer s failure to address the issue on appeal, we do not know today which factors Speers contends were proved. Despite counsel s failure to assist the Court in this regard, we have thoroughly reviewed the record to carry out our statutory duty of independent review. We describe below the mitigating circumstances that we find proved by a preponderance of the evidence. 1. ¶85 Speer proved that he suffered a difficult childhood. He grew up in what even the State s expert witness conceded was a dysfunctional home. Drug abuse was pervasive in his family, and his mother used heroin during pregnancy. Speer was referred to juvenile court twenty-six times for various crimes. He was incarcerated twelve times between his fourteenth and eighteenth birthdays. ¶86 Speer childhood. proved least some physical abuse during He presented evidence of sexual abuse by a female relative at age five. school at years, his Speer also showed that during his early mother refused recommended evaluations of suspected learning disabilities. 2. ¶87 The record also establishes abused both alcohol and drugs. that Speer habitually Speer began using drugs in his 37 early adolescence, overdosing on methamphetamines when thirteen years old. He was sent to drug treatment as a juvenile. Speer later became addicted to heroin and apparently committed the March 14 burglary to get money to buy heroin. 3. ¶88 Speer and the State presented evidence on mental health issues. sharply conflicting Speer s experts claimed that he had moderate to severe cognitive impairment, post-traumatic stress disorder ( PTSD ), depression, and a low IQ. The State s expert agreed that Speer suffered from depression but concluded that Speer was malingering cognitive impairment and had antisocial personality disorder, not PTSD. ¶89 After reviewing evidence presented, we the expert conclude suffered from depression. testimony that Speer and the proved other that he We also conclude that Speer proved that he had an IQ between 87 and 97. ¶90 We do not cognitive impairment. mental health, the conclude that Speer proved significant Whatever the formal diagnosis of Speer s record makes plain that he had a clear ability to think ahead and understand the wrongfulness of his actions. Speer meticulously planned the murder while in custody, cleverly used code in communicating with Brian, easily evaded various MCSO phone restrictions 38 on outgoing prisoner calls, and repeatedly urged that Brian dispose of incriminating evidence. 4. ¶91 Speer also proved that the death penalty would have negative effects on his family. Speer presented evidence that he has a child, and established that an execution would have a very negative effect on his extended family. C. Propriety of the Death Sentence ¶92 The jury found four aggravating circumstances. Our independent review confirms that the (F)(2), (F)(6), and (F)(7) aggravators were proved beyond a reasonable doubt. Having set aside the jury s finding of the (F)(3) aggravator, we must now independently substantial aggravation. ¶93 evidence. determine to warrant if the leniency mitigation is sufficiently in of the light existing A.R.S. § 13-755(B). As noted above, the record is not bereft of mitigating Among other things, childhood and serious drug abuse. Speer suffered a difficult But that history is not in itself sufficient to warrant leniency in this case.10 10 In Hampton, we acknowledged the defendant s horrendous childhood but nonetheless affirmed a death sentence, noting that difficult family background, in and of itself, is not a mitigating circumstance sufficient to mandate leniency in every capital case. 213 Ariz. 167, 185 ¶ 89, 140 P.3d 950, 968 (2006) (internal quotation marks and citation omitted). 39 ¶94 Nor do Speer s mental health issues warrant leniency under the circumstances of this case. This was not a crime of passion difficult or an impetuous reaction to circumstances. For almost a month, Speer planned the murder of two innocent victims of a burglary that he had committed, with the goal of avoiding the consequences of his prior crime. The three aggravating circumstances prior serious conviction, witness elimination, and committing the offense while on parole or in custody are cumulatively entitled to substantial weight. the factor of witness elimination is in itself And, especially weighty, as it involves a direct affront to the functioning of the justice system. See Johnson, 212 Ariz. at 439 ¶¶ 59-60, 133 P.3d at 749 ( Killings committed with this cold-blooded logic in mind are especially depraved, and separate the crime from the norm of first-degree murders. (internal quotation marks and citations omitted)). ¶95 Having considered the entire record, we conclude that the mitigating evidence, in the aggregate, is not sufficiently substantial to call for leniency. We therefore affirm the sentence of death for the first degree murder of Adan Soto. _________________________ Similarly, State v. Ellison noted that even if the defendant s childhood experiences left him less equipped to make good moral decisions . . . [he] was not actually incapable of telling right from wrong. His childhood troubles deserve little value as a mitigator for the murder he committed at age thirty-three. 213 Ariz. 116, 144 ¶ 136, 140 P.3d 899, 927 (2006). 40 VI. Conclusion ¶96 For the foregoing reasons, we affirm the judgment of conviction for first degree murder and the sentence of death. _______________________________________ Andrew D. Hurwitz, Vice Chief Justice CONCURRING: _______________________________________ Rebecca White Berch, Chief Justice _______________________________________ Michael D. Ryan, Justice _______________________________________ W. Scott Bales, Justice _______________________________________ Ruth V. McGregor, Justice (Retired) 41 APPENDIX 1. The fact-finder in capital cases must be able to consider all relevant mitigating evidence in deciding whether to give the death penalty. See Woodson v. North Carolina, 428 U.S. 280, 304 96 S. Ct. 2978, 49 L.Ed.2d 944 (1976). The trial court s failure to allow the jury to consider and give effect to all mitigating evidence in this case by limiting its consideration to that proven by a preponderance of the evidence is unconstitutional under the Eighth and Fourteenth Amendments. This court rejected this argument in State v. McGill, 213 Ariz. 147, 161 ¶ 59, 140 P.3d 930, 944 (2006), cert. denied, ___ U.S. ___, 127 S.Ct 1914, 167 L.Ed.2d 570 (2007). See also State v. Medina, 193 Ariz. 504, 514-15, 43, 975 P.2d 94, 104-05 (1999). 2. The aggravating F.6 factor especially is heinous, cruel or depraved unconstitutionally vague and overbroad because the jury does not have enough experience or guidance to determine when aggravator by the a aggravator jury is violates met. the The finding Eighth and of this Fourteenth Amendments because it does not sufficiently place limits on the discretion of the sentencing body, the jury, which has no narrowing constructions to draw from and give substance to the otherwise facially vague law. This court rejected this argument in State v. Cromwell, 211 Ariz. 181, 188-90 ¶¶ 38-45, 119 P.3d 448, 455-57 (2005), cert. denied ___ U.S. ___, 126 S.Ct 42 2291, 164 L.Ed.2d 819 (2006), and Anderson II, 210 Ariz. at 353 ¶ 114, 111 P.3d at 395. 3. The court also instructed the jury that they must not be influenced by mere sympathy or by prejudice in determining these facts. These instructions limited the mitigation the jury could consider in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments and Article 2, Sections 1, 4, 15, 23, and 24 of the Arizona Constitution. We rejected this argument in State v. Carreon, 210 Ariz. 54, 70-71 ¶¶ 81-87, 107 P.3d 900, 916-17, cert. denied, 546 U.S. 854, 126 S.Ct. 122, 163 L.Ed.2d 129 (2005). 4. The death penalty is cruel and unusual under any circumstances and violates the Eighth and Fourteenth Amendments, and Article 2, Section 15 of the Arizona Constitution. This Court and the United States Supreme Court have rejected this argument. Gregg v. Georgia, 428 U.S. 153, 186-87, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); State v. Harrod, 200 Ariz. 309, 320 ¶ 59, 26 P.3d 492, 503 (2001), vacated on other grounds, 536 U.S. 953, 122 S.Ct. 2653, 153 L.Ed.2d 830 (2002)(mem.). 5. The death penalty is irrational and arbitrarily imposed; it serves no purpose that is not adequately addressed by life in prison, in violation of the defendant s right to due process under the Fourteenth Amendment to the United States Constitution and Article 2, Sections 1 and 4 of the Arizona 43 Constitution. This court rejected these arguments in State v. Smith, 203 Ariz. 75, 82 ¶¶ 35-36, 50 P.3d 825, 832 (2002), and State v. Beaty, 158 Ariz. 232, 247, 762 P.2d 519, 534 (1988). 6. has The prosecutor s discretion to seek the death penalty no standards and therefore violates the Eighth and Fourteenth Amendments, and Article 2, Section 1, 4, and 15 of the Arizona Constitution. This court rejected this argument in State v. Sansing, 200 Ariz. 347, 361 ¶ 46, 26 P.3d 1118, 1132 (2001), vacated on other grounds, 536 U.S. 954, 122 S.Ct. 2654, 153 L.Ed.2d 830 (2002) (mem.). See also State v. Finch, 202 Ariz. 410, 419 ¶ 50, 46 P.3d 421, 430 (2002). 7. Arizona s discriminate against death poor, penalty young, is applied and male so as to defendants in violation of Article 2, Sections 1, 4, and 13 of the Arizona Constitution. This court rejected this argument in Sansing, 200 Ariz. at 361 ¶ 46, 26 P.3d at 1132. See also State v. Stokley, 182 Ariz. 505, 516, 898 P.2d 454, 465 (1995). 8. Proportionality review serves to identify which cases are above the norm of first degree murder, thus narrowing the class of defendants who are eligible for the death penalty. The absence of proportionality review of death sentences by Arizona courts denies capital defendants due process of law and equal protection and amounts to cruel and unusual punishment in violation of the Fifth, Eighth, and Fourteenth Amendments, and 44 Article 2, Section 15 of the Arizona Constitution. This court rejected this argument in State v. Gulbrandson, 184 Ariz. 46, 73, 906 P.2d 579, 606 (1995). See also State v. Salazar, 173 Ariz. 399, 417, 844 P.2d 566, 584 (1992). 9. Arizona s capital sentencing scheme is unconstitutional because it does not require the State to prove the death penalty is appropriate or require the jury to find beyond a reasonable outweigh the Arizona s doubt accumulated death penalty that the aggravating mitigating statute circumstances circumstances. requires Instead, defendants to prove their lives should be spared, in violation of the Fifth, Eighth, and Fourteenth Amendments, and Article 2, Section 15 of the Arizona State Constitution. v. (1988). Fulminante, This 161 court Ariz. rejected 237, 258, this 778 argument P.2d 602, in 623 See also Carreon, 210 Ariz. at 76 ¶ 122, 107 P.3d at 922. 10. Arizona s death penalty scheme does not sufficiently channel the sentencing jury s discretion. Aggravating circumstances should narrow the class of persons eligible for the death penalty and reasonably justify the imposition of a harsher penalty. Arizona Revised Statutes section 13-703.01 is unconstitutional because it provides no objective standards to guide the jury circumstances. in weighing the aggravating and mitigating The broad scope of Arizona s aggravating factors 45 encompasses nearly anyone involved in a murder, in violation of the Eighth and Fourteenth Amendments, and Article 2, Section 15 of the Arizona Constitution. This court rejected this argument in State v. Pandeli, 200 Ariz. 365, 382 ¶ 90, 26 P.3d 1136, 1153 (2001), vacated on other grounds, 536 U.S. 953, 122 S.Ct. 2654, 153 L.Ed.2d 830 (2002)(mem.). See also State v. Greenway, 170 Ariz. 155, 164, 823 P.2d 22, 31 (1991). 11. Execution by lethal injection is cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments, and Article 2, Section 15 of the Arizona Constitution. This court rejected this argument in State v. Van Adams, 194 Ariz. 408, 422 ¶ 55, 984 P.2d 16, 30 (1999), and State v. Hinchey, 181 Ariz. 307, 315, 890 P.2d 602, 610 (1995). 12. Arizona s death penalty scheme unconstitutionally requires imposition of the death penalty whenever at least one aggravating circumstance and no mitigating circumstances exist, in violation of the Eighth and Fourteenth Amendments, Article 2, Section 15 of the Arizona Constitution. and Arizona s death penalty law cannot constitutionally presume that death is the appropriate default sentence. This court rejected this argument in State v. Miles, 186 Ariz. 10, 19, 918 P.2d 1028, 1037 (1996). 46
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