STATE OF ARIZONA v. RYAN WESLEY KUHS
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SUPREME COURT OF ARIZONA En Banc STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) RYAN WESLEY KUHS, ) ) Appellant. ) _________________________________ ) Arizona Supreme Court No. CR-07-0301-AP Maricopa County Superior Court No. CR 2005-138481 O P I N I O N Appeal from the Superior Court in Maricopa County The Honorable Paul J. McMurdie, Judge AFFIRMED ________________________________________________________________ TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Susanne Bartlett Blomo, Assistant Attorney General Attorneys for State of Arizona MICHAEL S. REEVES, ESQ. By Michael S. Reeves Phoenix And STEPHEN M. JOHNSON, P.C. Phoenix By Stephen M. Johnson Attorneys for Ryan Wesley Kuhs ________________________________________________________________ B E R C H, Chief Justice ¶1 A jury convicted Ryan Wesley Kuhs of first degree burglary and first degree murder and determined that he should be sentenced to death. In this automatic appeal, Kuhs raises seven issues.1 Ariz. R. Crim. P. 31.2(b). We have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) § 13-4031 (2001). I. ¶2 FACTUAL AND PROCEDURAL BACKGROUND2 In 2005, Ryan Kuhs entered Enrique Herrera s apartment and stabbed him while he slept. defend himself. During the Herrera awoke and attempted to struggle, Kuhs stabbed Herrera twenty-one times. ¶3 Three residents of the apartment complex saw Kuhs leave Herrera s apartment with blood on his shirt and arms. They entered Herrera s apartment, saw Herrera lying in a pool of blood, and called 911. Herrera died later that day after being taken to the hospital. ¶4 Kuhs went to another apartment, cleaned himself up, changed clothes, and left the apartment complex with his bloody clothes in a bag. When he returned later that afternoon, he was arrested. ¶5 After being given Miranda warnings, Kuhs agreed to talk to the police and eventually confessed to the killing. Kuhs said that he went to Herrera s apartment to confront him about 1 He lists thirteen additional challenges to the constitutionality of Arizona s death penalty scheme to avoid preclusion. Those thirteen claims are appended to this opinion. 2 We view the facts in the light most favorable to sustaining the verdict. State v. Moore, 222 Ariz. 1, 5 n.1 ¶ 2, 213 P.3d 150, 154 n.1 (2009). - 2 - an argument between the two the previous night. ¶6 The jury convicted Kuhs of first degree burglary and first degree murder. The jury found five aggravating factors: (1) a prior conviction for a serious offense based on the first degree burglary (Supp. 2009); offense from this prosecution, (2) a second prior on a second degree based A.R.S. conviction burglary, § 13-751(F)(2) for a serious A.R.S. § 13- 751(F)(2); (3) the especially heinous, cruel, or depraved manner of the murder, A.R.S. § 13-751(F)(6); (4) the commission of the murder while on release from prison, A.R.S. § 13-751(F)(7)(a); and (5) the commission of the murder while on probation for a prior felony, A.R.S. § 13-751(F)(7)(b). ¶7 The jury found that the mitigation was not sufficiently substantial to call for leniency and that the death penalty should be imposed. The court sentenced Kuhs to death for the first degree murder and to a concurrent term of twentyeight years for the burglary. II. A. Guilt Phase 1. ¶8 DISCUSSION Kuhs s competency Kuhs argues that the trial court erred by finding him competent to stand trial without holding an evidentiary hearing. We review the trial court s determination of whether to require an evidentiary hearing on competency for abuse of discretion. - 3 - See State v. Amaya-Ruiz, 166 Ariz. 152, 162, 800 P.2d 1260, 1270 (1990). ¶9 In January examination 11.2(c), pursuant alleging 2006, to that Kuhs requested Arizona Rule he experiencing was of a prescreening Criminal Procedure hallucinations. After that preliminary examination, the court ordered a full Rule 11 evaluation. ¶10 During See Ariz. R. Crim. P. 11.2(d). the evaluation process, Drs. Jack Potts and Scott Sindelar independently examined Kuhs and both found him incompetent to stand trial. They noted that he claimed to experience auditory and visual hallucinations in which God spoke to him. They opined, however, that Kuhs could be restored to competency. ¶11 Based on the doctors reports, the trial court found Kuhs incompetent to stand trial and ordered him committed to the Maricopa County Correctional Health Services Restoration Program. The trial court ordered a written report on Kuhs s progress and prognosis. ¶12 While in the restoration program, Kuhs was evaluated by Dr. Jason Lewis, who submitted a report concluding that Kuhs had feigned his stand trial. earlier reported psychosis and was competent to Dr. Lewis s report detailed Kuhs s understanding of the charges against him as well as the trial process and its participants. The prosecutor and - 4 - defense counsel stipulated that the court Lewis s report. could assess Kuhs s competency based on Dr. At a July 11, 2006 hearing, the judge found Kuhs competent to stand trial based on a review of that [July 4] final report as well as the pleadings filed pursuant to Rule 11. ¶13 A defendant has a due process right not to be tried or convicted while incompetent. Amaya-Ruiz, 166 Ariz. at 161, 800 P.2d v. at (1975)). 1269 (quoting Drope Missouri, 420 U.S. 162, 172 Arizona Rule of Criminal Procedure 11.2 protects that right by providing for a prescreening examination and hearing if reasonable grounds exist to question the accused s competence. Reasonable grounds exist when there is sufficient evidence to indicate that the defendant is not able to understand the nature of the proceeding against him and to assist in his defense. Id. at 162, 800 P.2d at 1270 (quoting State v. Borbon, 146 Ariz. 392, 395, 706 P.2d 718, 721 (1985)); see also Ariz. R. Crim. P. 11.1 (prohibiting trial of a person who is unable to understand the proceedings against him or her or to assist in his or her own defense ). ¶14 If the court has determined that an incompetent defendant is restorable to competency, the court must order the person supervising defendant s court-ordered treatment to file a report with the court. 11.5(d). restoration Ariz. R. Crim. P. When the court receives a report that the defendant - 5 - has become competent to stand trial, [t]he court shall hold a hearing to redetermine the defendant s competency at which the parties may introduce other evidence regarding the defendant s mental condition reports. ¶15 or submit the matter on the experts Id. R. 11.6(a), 11.5(a). Kuhs complains that he was denied the hearing required by Rules 11.5 and 11.6 because the court allowed the parties [to] stipulate[] to competency, and by doing so, the court violated its duty to conduct a competency hearing and to make an independent inquiry to determine [whether Kuhs] was competent to stand trial. ¶16 Counsel, however, did not stipulate to competency. Instead, they stipulated to the admissibility of Dr. Lewis s report and presented competency. In no other finding that evidence Kuhs had regarding been Kuhs s restored to competency, the trial court stated that it had reviewed Dr. Lewis s final report as well as the pleadings filed pursuant to Rule 11. Because the same judge had presided over the initial Rule 11 proceeding, the court was familiar with the reports previously submitted by record, conclude that we discretion in making Drs. Potts and the trial court its competency holding an evidentiary hearing. - 6 - Sindelar. did not On this abuse its determination without 2. Denial of motion for mistrial ¶17 During the State s guilt phase closing argument, the victim s stepmother cried audibly. After the prosecutor concluded her closing argument, Kuhs moved for a mistrial, which the court denied. Kuhs now claims that the court erred in denying his motion. ¶18 We review the denial of a motion for mistrial for abuse of discretion. State v. Hoskins, 199 Ariz. 127, 142 ¶ 52, 14 P.3d 997, 1012 (2000). applies because the This deferential standard of review trial judge is in the best position to evaluate the atmosphere of the trial, the manner in which the objectionable statement was made, and the possible effect it had on the jury and the trial. State v. Bible, 175 Ariz. 549, 598, 858 P.2d 1152, 1201 (1993) (quoting State v. Koch, 138 Ariz. 99, 101, 673 P.2d 297, 299 (1983)). ¶19 Although raucous outburst, Kuhs the characterizes record does the not disruption contain evidence of the disruptiveness of the incident. State s closing argument, the court asked the pause, apparently in reaction to the occurrence. any as a direct During the prosecutor to The only other reference to the event in the record is the discussion between the court and counsel held outside the jury s presence after the - 7 - prosecutor s closing argument.3 3 After the State s closing argument, the following exchange took place: DEFENSE COUNSEL: I think we need to address what happened right at the tail end of the State s close, their first close. I think we fought a pretty clean trial, but that outburst at the end of the State s close I know we tell the jury not to be swayed by sympathy or passion, but then we have a wailing woman at the end of the State s close. I think a mistrial is in order now. If the Court is not inclined to grant that mistrial, then I would ask that you instruct the victims I understand this is a trying time for them, but if they cannot control themselves, that they need to leave the courtroom. THE COURT: heard? All right. Does the State wish to be THE STATE: Your Honor, obviously the State didn t know that was going to happen. The victims [the deceased s father and stepmother] have generally come to trial. They have not shown one iota of inappropriate or even emotion at all, including when [the stepmother] testified. So it s not too hard to understand why Ricky s stepmother would become extremely upset upon seeing this. . . . [M]y victim advocate[] has spoken to the family, and they understand the importance of keeping their composure and have agreed if they cannot do that, they will leave the court. THE COURT: All right. Just so the record is clear, I agree with the assessment that the next of kin, who were in my line of sight throughout the entire proceedings, have not acted in any inappropriate fashion whatsoever. There was a point towards the end of the State s opening argument where one of them burst into tears. I immediately instructed the bailiff to escort the - 8 - ¶20 On this record, we cannot conclude that the trial court inaccurately assessed the situation or abused its discretion in denying Kuhs s motion for mistrial. We previously have found that more substantial emotional outbursts in the jury s presence did not mandate a mistrial. In State v. Bible, 175 Ariz. at 597, 858 P.2d at 1200, for example, as the father of a murdered girl walked out of the courtroom, he referred to the defendant as [t]hat f[***]ing asshole within earshot of the judge and jury. The judge admonished the jury to disregard the outburst, id., and denied the defendant s motion for mistrial, explaining: I don t think it s really the substance for a mistrial. I don t think there is any doubt in the jury s mind about how [the victim s father] feels about [the defendant]. 858 P.2d at 1200 01 (first alteration in Id. at 597 98, original). We emphasized that the victim s father had taken no action at trial warranting reprimand or comment prior to his outburst and [n]o information was conveyed other than the father s animosity toward Defendant, a feeling that could hardly have surprised the jurors. Id. at 599, 858 P.2d at 1201. ¶21 Similarly, Herrera s stepmother s tears did not convey any new information to the jury. When she burst into tears, she was immediately escorted from the courtroom. The court had woman out of the courtroom, which she did. I don t think a mistrial is appropriate at this point, so the motion for mistrial is denied. - 9 - no indication before the incident that she would respond in such a fashion. She had behaved appropriately throughout the trial, even during her own testimony. Finally, the trial court took immediate and appropriate action to prevent repetition of the incident by addressing the gallery outside the jury s presence and directing observers to avoid future outbursts that might cause a mistrial. did not abuse its Under these circumstances, the trial court discretion in denying Kuhs s motion for mistrial. 3. Sufficiency of the murder conviction ¶22 evidence to support the felony- The jury found Kuhs guilty of felony murder, for which first degree burglary served as the predicate offense. A.R.S. § occurring 13-1105(A)(2) when in the (2001) course (defining of and in felony See murder furtherance of as [a defined burglary] offense . . . , the person . . . causes the death of any person ). The burglary charge was predicated on Kuhs s entry of the apartment with the intent to assault Herrera with a knife. See A.R.S. § 13-1508(A) (defining first degree burglary as occurring if a person commits second or third degree burglary and knowingly possesses . . . a deadly weapon or a dangerous instrument in the course of committing any theft or any felony ). ¶23 Kuhs contends that the State presented insufficient - 10 - evidence that he entered Herrera s apartment with the intent to commit aggravated assault. Instead, Kuhs argues, he entered Herrera s apartment intending to commit murder.4 ¶24 We determining finding, review whether viewing the sufficiency substantial the facts in sustaining the jury verdict. of evidence the the supports light most is proof that the by jury s favorable to State v. Roseberry, 210 Ariz. 360, 368 69 ¶ 45, 111 P.3d 402, 410 11 (2005). evidence evidence reasonable persons Substantial could accept as adequate . . . to support a conclusion of defendant s guilt beyond a reasonable doubt. State v. Bearup, 221 Ariz. 163, 167 ¶ 16, 211 P.3d 684, 688 (2009) (alteration in original) (quoting State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980)). ¶25 The State introduced evidence that Kuhs entered Herrera s apartment uninvited and armed with a knife. In his statement to police, Kuhs said he went to the apartment to talk 4 Kuhs argues that he only entered the apartment to commit murder, not to assault Herrera. He asserts that one cannot commit felony murder when one committed burglary in order to commit murder. We rejected this argument in State v. Moore, reasoning that it would be anomalous to conclude that firstdegree murder occurs if a burglary with intent to assault results in death but not if the burglary is based on the more culpable intent to murder. 222 Ariz. at 13-14 ¶¶ 57 63, 213 P.3d at 162 63 (concluding that proof of entering with intent to commit murder suffices to establish felony murder through burglary). Thus, even if Kuhs s factual argument were correct, his legal argument would fail. - 11 - to Herrera about an altercation they had the preceding night. Kuhs explained that he thought Herrera wanted to fight him and that Herrera was calling [him] weak. In a prolonged struggle, Kuhs inflicted several non-fatal stab wounds before delivering the wound that caused Herrera to collapse. Thus, although Kuhs claims to have entered with the intent to murder Herrera, the evidence amply supported the jury s finding that he entered Herrera s apartment intending to commit aggravated assault. 4. ¶26 Denial of motion to strike jurors for cause Kuhs argues that the trial court erred by failing to strike two potential jurors for cause. on the jury. Neither juror was seated Because the State peremptorily struck one juror, Kuhs suffered no prejudice from the trial court s refusal to strike that juror for cause. We therefore address only the juror struck by Kuhs. ¶27 In State v. Hickman, 205 Ariz. 192, 201 ¶¶ 39, 41, 68 P.3d 418, 427 (2003), this Court held that when defense counsel peremptorily strikes a juror, we will not find reversible error based on the trial court s refusal to remove that juror for cause unless the resulting jury was not fair and impartial. Kuhs does not claim that the jury that decided his case was not fair and impartial. We therefore conclude, Hickman, that no prejudicial error has occurred. as we did in Id.; see also State v. Medina, 193 Ariz. 504, 510 11 ¶¶ 16 19, 975 P.2d 94, - 12 - 100 01 (1999) (on facts similar to those in Kuhs, finding no error in judge s refusal to strike juror). B. Penalty Phase 1. ¶28 Jury coercion Kuhs makes two jury coercion arguments. argues that the trial judge erred in rejecting First, he the jury s verdict that it could not unanimously decide on a sentence of life or death. Second, he argues that the trial court coerced the jury verdict by giving an impasse instruction after the jury had twice indicated that it was deadlocked. ¶29 At the beginning of the penalty phase, the court instructed the jury as follows: If you unanimously find that the mitigation is not sufficiently substantial to call for leniency, you must return a verdict of death. Any verdict of death or life imprisonment must be unanimous. If you unanimously find that no mitigation exists, then you must return a verdict of death. If you unanimously find that mitigation exists, each one of you must individually weigh that mitigation in light of the aggravating circumstances already found to exist, and if you unanimously find that the mitigation is not sufficiently substantial to call for leniency, you must return a verdict of death. If you unanimously find that mitigation exists and that it is sufficiently substantial to call for leniency, you must return a verdict of life. If you cannot unanimously agree on the appropriate sentence, your foreperson shall tell the judge. ¶30 After receiving the case, the jury deliberated for less - 13 - than an hour before being excused for the day. The jury deliberated for several hours on the second day and during the morning of the third day. On returning from lunch, the jury sent stating: a note to the judge We, the jury, cannot counsel. Both unanimously agree on the appropriate sentence. ¶31 The trial court immediately called agreed that the judge should give the following instruction, which was given to the jury within five minutes of receiving the jury s note: . . . Please continue to deliberate until four o clock. If you re still deadlocked, we ll bring you back in the courtroom at 10 tomorrow morning. 5 ¶32 day. note The jury then deliberated until the end of the court When the jury recessed, the bailiff delivered a second to the judge that stated, following our deliberation. We are still deadlocked The court dismissed the jury for the day. ¶33 impasse The next morning, the trial court discussed the second note with counsel. The court suggested giving the impasse instruction suggested by [Rule 22.4], and approved by the Arizona Supreme Court in [State v.] Andriano, 215 Ariz. 5 The judge initially wanted the jurors to continue to deliberate and return to the courtroom at 4:00 p.m. if they remained deadlocked. One of Kuhs s attorneys, however, could not return that afternoon. After additional discussion with counsel, it was agreed to address the jury the next morning at 10:00 a.m. - 14 - 497, 508-09 ¶ 54, 161 P.3d 540, 551-52 (2007).6 State nor defense counsel objected. follows: Neither the Defense counsel stated as Judge, not that I have an objection, but I just don t want this to be a battle in futility. If they re locked now, I don t want them to go back there and get into a fist fight. If it s to going to be a situation where it s just not going happen, I think we should know that now. The court agreed: And I don t disagree with what you said. The instruction actually asks them to write us a kind of a note, a detailed note, to say, How could we help you? And if they send me back a note, that says, You can t, then it s over. . . . . I really want them to try to see if there s something we can t do to help them break. . . . I don t know what the split is, I don t know anything about it. My suggestion is, we send the instruction in, see what we get out. I don t disagree with you. I m not going to let them sit there for a week. Defense counsel approved the court s approach. ¶34 At 10:35 a.m., the court delivered the instruction to the jury and deliberations continued. impasse At 3:28 that afternoon, the jury announced its death penalty verdict. 6 The instruction is not in the record. Both parties agree, however, that the court delivered an instruction that followed the language of the sample instructions suggested in Rule 22.4 and approved by this Court in Andriano, 215 Ariz. at 508-09 ¶ 54, 161 P.3d at 551-52 (instruction); id. at 510 ¶ 60, 161 P.3d at 553 (court approval of instruction). Kuhs concedes that the language of the impasse instruction given was not coercive. - 15 - a. ¶35 Initial penalty-phase instruction Kuhs argues that the instruction to the jury at the beginning of the penalty phase gave the jurors three distinct choices: (1) return a unanimous verdict calling for a life sentence; (2) return a unanimous verdict calling for a death sentence; or (3) inform the judge that the jury unanimously agree on the appropriate sentence. could not Kuhs bases his argument on the last sentence of the initial instruction, which read, [i]f you cannot unanimously agree on the appropriate sentence, your foreperson shall tell the judge. ¶36 Kuhs maintains that by sending two notes stating that they were deadlocked, the jurors were informing the court that they had chosen the third option and made a final decision that they could not unanimously agree on a sentence. Kuhs therefore contends that sending the jurors back twice to deliberate once directing them to deliberate until 4:00 p.m. and once with an Andriano instruction constituted coercion. ¶37 jurors. We review de novo whether the court misinstructed the See State v. Zaragoza, 221 Ariz. 49, 53 ¶ 15, 209 P.3d 629, 633 (2009). We will not reverse a conviction unless the instructions, taken as a whole, misled the jurors. ¶38 Kuhs focuses entirely on one Id. sentence from instruction given at the beginning of the penalty phase. an After closing arguments in the penalty phase, just before the start of - 16 - deliberations, however, the court again instructed the jury. This time the trial court focused on how the jury should decide on a verdict: Ladies and gentlemen of the jury, the case is now submitted to you for decision. . . . You will be given one form of verdict. as follow[s] . . . : It reads We, the jury, duly empaneled and sworn in the above-entitled action, upon our oaths, do unanimously find, having considered all of the facts and circumstances, that the defendant should be sentenced to, and there s a line for life or a line for death. (Emphasis added.) Thus, just before deliberations, the jurors were clearly instructed they had two choices: a life sentence or a death sentence. ¶39 Kuhs contends that, to avoid confusion, the court should have also instructed the jurors that, if you cannot agree, then we will give you further instructions. But Kuhs did not request such an instruction, so the question is whether the instructions given so misstated the law or misled the jury as to constitute fundamental error. We do not find that the initial instruction either misled the jury as to its duty or required the court to discharge the jury, without giving any further instruction, once the jurors indicated that they could not unanimously agree on a sentence. penalty-phase instructions, After reviewing all of the including the specific guidance provided just before the jury retired to deliberate, we conclude - 17 - that the instructions appropriately informed the jury of the verdict and sentencing options. b. ¶40 Sending the jury back to deliberate separate impasse or deadlock notes after two Kuhs argues that the trial court also erred in giving the Andriano instruction after receiving a second impasse note. Although he made no contemporaneous objection, Kuhs now argues that the court should instead have released the jury. Kuhs relies on A.R.S. § 13-752(K) (Supp. 2009), which requires that, [a]t the penalty phase, if . . . the jury is unable to reach a verdict, the court shall dismiss the jury and shall impanel a new jury. ¶41 The judge, however, need not blindly accept the jury s indication of an impasse. The trial judge retains authority to assist a jury that has reached an impasse. Arizona Rules permits the of Criminal trial court Procedure, to assist for a Rule 22.4 of the example, deadlocked explicitly jury. It provides that, [i]f the jury advises the court that it has reached an impasse, the court may ask the jurors if the court or counsel can assist them. Id.; see also Andriano, 215 Ariz. at 508-09 ¶ 60, 161 P.3d at 551-52 (noting that court may assist jury that has indicated a need for help). ¶42 We review a trial court s response to jurors for an abuse of discretion. See, e.g., State v. Ramirez, 178 Ariz. - 18 - 116, 126, 871 P.2d 237, 247 (1994). In determining whether an abuse has occurred and whether the abuse coerced the jury s verdict, we examine the actions of the judge and the comments made to the jury based on the totality of the circumstances and attempt[] to determine if the independent judgment of the jury was displaced. State v. Huerstel, 206 Ariz. 93, 97 ¶ 5, 75 P.3d 698, 702 (2003). ¶43 In reviewing coercion claims, we have focused on whether the judge knew the numerical split among the jurors. See, e.g., State v. McCrimmon, 187 Ariz. 169, 172, 927 P.2d 1298, 1301 (1996) (calling knowledge of the jury s numerical division an important factor when considering the totality of the circumstances ); State v. McCutcheon, 150 Ariz. 317, 320, 723 P.2d 666, 669 (1986) (noting that [w]hen the numerical division is known, particularly if the division is lopsided, encouraging the jury to decide can amount to coercion ). We have also found the length of time that the jury has deliberated when the trial court delivers an important in determining coercion. 99 ¶ 17, 75 deliberations P.3d at following 704 a impasse instruction to be See Huerstel, 206 Ariz. at (determining three-week that trial three did not days of clearly signal that this jury had reached an impasse ). ¶44 In this case, these factors do not indicate coercion. The trial judge did not know the numerical division of the jury - 19 - or ask the cause of the deadlock. deliberated before sending its And the time the jury had impasse note was relatively brief. When the jury sent its first impasse note to the court, it deliberated had lunch periods. for approximately twelve hours, including Approximately three hours after being instructed to continue deliberations, the jury delivered the second impasse note to the court. the jury had The impasse instruction was given because indicated that it was deadlocked, not as an anticipatory measure motivated by the jury split or the length of the deliberations. ¶45 Kuhs argues that this case is governed by State v. Huerstel, in which we stated that a trial court may violate Arizona Rule of Criminal Procedure 22.4 by giving an impasse instruction before the jury indication that it needs help. at 704. has given an affirmative 206 Ariz. at 99 ¶ 17, 75 P.3d Kuhs argues that, as in Huerstel, the jury here never affirmatively indicated a need for assistance. ¶46 In Huerstel, after the jury deliberated for approximately three days without giving any indication that it was at an impasse, the trial judge, over counsel s objection, gave the jury an impasse instruction. at 702-03. In contrast, Kuhs s Id. at 97-98 ¶ 8, 75 P.3d jury sent two notes affirmatively indicating that it was at an impasse, and counsel did not object to the instruction or to the court s proposed - 20 - course of action. ¶47 Huerstel is distinguishable in other ways as well. In Huerstel, our conclusion that the court coerced the jury verdict was based not only on the trial court s issuance of an impasse instruction without an affirmative indication from the jury that it had reached an impasse.7 We also relied heavily on the fact that the trial court knew the numerical division of the jurors and asked the holdout juror for clarification, which we found improperly pressured one juror to reconsider his position. at 98, 101 ¶¶ 12, 25, 75 P.3d at 703, 706. Id. In Kuhs s case, no such circumstances occurred. ¶48 We review the trial court s actions by examining the totality of the circumstances. P.3d at 702 06. See id. at 97 101 ¶¶ 5 25, 75 The record reflects that the experienced trial judge communicated with and sought approval from counsel each time before interacting with the jury. During these communications, not only did neither party object, but both the prosecutor and defense counsel affirmatively approved the trial court s proposed instructions and course of action. after 7 receiving the first note from the jury, Immediately the judge In Huerstel, after finding that the trial court s premature issuance of an impasse instruction violated Rule 22.4, we concluded that standing alone, the court s premature giving of the instruction recommended by the comment to Rule 22.4 does not rise to the level of reversible error. 206 Ariz. at 100 ¶ 18, 75 P.3d at 705. - 21 - contacted all counsel and suggested that he would tell the jury to [p]lease continue to deliberate until four o clock. If you re still deadlocked, we ll courtroom at 10 tomorrow morning. Sure, that s fine, Judge, and bring you back . . . in the The prosecutor responded, defense counsel replied, I don t have any problem with that. ¶49 The next day, after the judge had received a second note from the jury indicating deadlock, he told counsel that he intended to give the jurors the instruction suggested by Rule [22.4] and approved by the Arizona Supreme Court in Andriano. The State did not object, nor did Kuhs s counsel, who responded, not that I object . . . to the instruction, but if it s going to be a . . . futile attempt, I would hate to send them back in there and get things even more cantankerous. agreed with defense counsel and The trial court acknowledged that if, upon receiving the impasse instruction, the jury decided there was nothing that the court could do to help, then the court would declare the case over. Defense counsel then approved the court s proposed course of action. ¶50 On this record, we cannot find an abuse of discretion. Although we do not find the trial court s actions coercive in this case, we caution that, with less careful instruction and absent defense counsel s approval of the court s proposed actions, impermissible coercion might well be found when a jury - 22 - twice indicates a deadlock. is unique. The penalty phase of a capital case Unlike any other part of the trial, the jury s determination that a particular mitigating circumstance exists need not be unanimous, A.R.S. § 13-751(C) (Supp. 2009), and whether to impose the death penalty is based on each juror s individual, qualitative evaluation of the facts of the case, the severity of the aggravating factors, and the quality of any mitigating evidence. State ex rel. Thomas v. Granville, 211 Ariz. 468, 472 ¶ 17, 123 P.3d 662, 666 (2005). Because of the individual nature of the penalty determination, there is more cause for concern that jurors may convinced to change their views. be coerced rather than Therefore, we caution trial courts to exercise special care, as did the court here, when faced with circumstances similar to those presented in this jury was case. 2. ¶51 Jury instructions regarding sympathy During instructed that prejudice. [i]n the it guilt must phase not be of the trial, influenced by the sympathy or At the aggravation phase, the court instructed that deciding whether an aggravating circumstance exists, you re not to be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion, or public feeling. ¶52 Kuhs contends that these guilt- and aggravation-phase instructions resulted in an improperly instructed penalty-phase - 23 - jury because these earlier instructions could have led the jury to disregard sympathy during its penalty-phase deliberations. Because Kuhs did not object at trial, we review Kuhs s claim for fundamental error. See State v. Valenzuela, 194 Ariz. 404, 405 ¶ 2, 984 P.2d 12, 13 (1999). ¶53 To avoid confusing the jury regarding the applicable instructions, at the penalty phase the court destroyed all of the earlier jury instructions, without objection by either side. The court then issued new instructions, which included following: You must not be influenced at any point in these proceedings by conjecture, passion, prejudice, public opinion, or public feeling. Do not be swayed by mere sympathy not related to the evidence presented during the penalty phase. . . . . Mitigating circumstances are any factors that are a basis for a life sentence instead of a death sentence, including any sympathetic or other aspect of the defendant s character, propensity, history or record, or circumstances of the offense. Mitigating circumstances are not an excuse or justification for the offense, but are factors that, in fairness or mercy, may be considered by you as extenuating or reducing the degree of defendant s moral culpability or blameworthiness. . . . You must consider and give effect to all mitigating circumstances that have been raised by any aspect of the evidence. You must disregard any jury instruction given to you at any other phase of this trial that conflicts with this principle. (Emphasis added.) - 24 - the ¶54 The Eighth and Fourteenth Amendments of the United States Constitution require that the sentencer in a capital case not be precluded from considering, as a mitigating factor, any aspect of a defendant s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. State v. Carreon, 210 Ariz. 54, 70 ¶ 83, 107 P.3d 900, 916 (2005) (emphasis omitted) (quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978)). Kuhs argues that if the jurors remembered the guilt- and aggravationphase instructions and focused on them rather than the penaltyphase instructions they had just been given, they might have thought they were precluded from considering sympathy. ¶55 We presume that the jurors follow instructions. See State v. Velazquez, 216 Ariz. 300, 312 ¶ 50, 166 P.3d 91, 103 (2007) (citing State v. Newell, 212 Ariz. 389, 403 ¶ 68, 132 P.3d 833, 847 (2006)). Kuhs does not provide any reason for us to conclude that the jurors chose to follow the earlier jury instructions, especially in light of the court s destruction of the earlier instructions, provision of new written instructions for the penalty phase, and direction to the jurors to disregard any jury instructions given to you at any other phase of this trial that conflict [with each juror s duty to consider all mitigating evidence]. The - 25 - penalty-phase instructions appropriately instructed the jury. ¶56 But even if the court had not informed the jurors at the penalty phase to disregard the guilt-phase instructions on sympathy, such inaction would not constitute fundamental error. See Carreon, 210 Ariz. at 71 ¶ 87, 107 P.3d at 917. 3. Constitutionality injection statute The ¶57 of in death penalty Arizona s Arizona is death-by-lethal- inflicted by an intravenous injection of a substance or substances in a lethal quantity sufficient to cause death, under the supervision of the state department of corrections. 2009). A.R.S. § 13-757(A) (Supp. Kuhs argues that § 13-757(A) is unconstitutionally vague because it does not establish a detailed protocol of chemicals to be used . . . [or] standards for the training and expertise of persons . . . conducting the executions. ¶58 We have previously found that Arizona s death penalty statute is not unconstitutionally vague in prescribing lethal injection as the method for imposing the death Andriano, 215 Ariz. at 510 ¶¶ 61-62, 161 P.3d at 553. sentence. We have also held that a challenge to the protocol to be used during a lethal injection must be made by petition filed pursuant to Arizona Rule of Criminal Procedure 32. III. ¶59 Id. ¶ 62. REVIEW OF SENTENCE Because Kuhs s offense occurred after August 1, 2002, - 26 - we review the jury s finding of aggravating circumstances and verdict of death (Supp. 2009). for abuse of discretion. A.R.S. § 13-756 Although Kuhs did not argue that the jury abused its discretion, our review is mandatory. State v. Morris, 215 Ariz. 324, 340 ¶ 76, 160 P.3d 203, 219 (2007). A. Aggravating Circumstances ¶60 We first consider the jury s finding of aggravating circumstances. We will uphold a jury decision if there is any reasonable evidence in the record to sustain it. Id. at 341 ¶ 77, 160 P.3d at 220 (quoting State v. Veatch, 132 Ariz. 394, 396, 646 P.2d 279, 281 (1982)). ¶61 The jury found five aggravating circumstances beyond a reasonable doubt: burglary from this (1) Kuhs was convicted of the first degree prosecution, A.R.S. § 13-751(F)(2) (Supp. 2009); (2) he had a previous conviction for a serious offense a second degree burglary charge, A.R.S. § 13-751(F)(2); (3) he committed the murder in an especially heinous, cruel, or depraved manner, A.R.S. § 13-751(F)(6); (4) he committed the murder while on release from prison, A.R.S. § 13-751(F)(7)(a); and (5) he committed the murder while on probation for a prior felony, A.R.S. § 13-751(F)(7)(b). ¶62 The only aggravator that Kuhs contested at trial was - 27 - whether the murder was especially cruel.8 To prove cruelty, the State must prove that the manner of death caused the victim to suffer mental and physical anguish and the defendant knew or should have known that suffering would occur. State v. Cañez, 205 Ariz. 620, 624 ¶ 14, 74 P.3d 932, 936 (2003) (internal citation and quotation marks omitted). special cruelty by showing pain before his death. that The State established Herrera suffered significant Not only was he stabbed several times, but he ultimately died by bleeding to death while choking on his own blood. Herrera had ample opportunity not only to feel pain, but also to contemplate his impending death. After the final stab wound to the head, Herrera was not immediately unconscious, but lay immobile in a pool of his blood. Kuhs left Herrera alive and dying after the fight and took no action to alleviate his suffering. discretion in We conclude that the jury did not abuse its finding that the State proved the (F)(6) aggravator beyond a reasonable doubt. B. ¶63 Propriety of the Death Sentence We discretion 8 also in must consider determining that whether death the jury abused its is the appropriate The jury plainly did not abuse its discretion in finding the (F)(2) or (F)(7) aggravators. The State properly used the burglary conviction from this case and a prior burglary conviction to establish the (F)(2) aggravating factors, see A.R.S. § 13-751(F)(2), and proved that Kuhs committed this murder while on release from prison and serving probation for a prior offense, see A.R.S. § 13-751(F)(7). - 28 - sentence. Although Kuhs presented mitigation evidence, the jury found the mitigation not sufficiently substantial to call for leniency. jury s See A.R.S. § 13-751(E). decision so long as [W]e will not reverse the any reasonable jury could have concluded that the mitigation established by the defendant was not sufficiently substantial to call for leniency. Morris, 215 Ariz. at 341 ¶ 81, 160 P.3d at 220. ¶64 Kuhs impulse contended control disorder. Kuhs caused was that by the ADHD relatively crime or resulted antisocial young from poor personality (twenty-one) when the murder occurred, he grew up in a poor family, and he was abused at least once at age nine by his mother s boyfriend. The record also contains some evidence of remorse and testimony from which the jury could have found that Kuhs was under the influence of methamphetamine, although he marijuana, was not so or alcohol impaired as during to the preclude attack, criminal responsibility. ¶65 The compelling. mitigation in this case, however, was not Kuhs s alleged mental disorder is linked to the incident itself only insofar as it might have made Kuhs more impulsive. that it Moreover, above And Kuhs s childhood was not so difficult or abusive mitigates there average was his actions evidence intelligence. in that committing Kuhs Under - 29 - this possessed the highly murder. average or deferential standard of review, we cannot conclude that the jury abused its discretion in not finding the mitigation sufficiently substantial to call for leniency and instead rendering a verdict of death in this case. IV. ¶66 CONCLUSION For the foregoing reasons, we affirm Kuhs s conviction and death sentence. _______________________________________ Rebecca White Berch, Chief Justice CONCURRING: _______________________________________ Andrew D. Hurwitz, Vice Chief Justice _______________________________________ Michael D. Ryan, Justice _______________________________________ W. Scott Bales, Justice _______________________________________ A. John Pelander, Justice - 30 - APPENDIX9 Issues Raised to Avoid Federal Preclusion For purposes of federal review, Kuhs raises the following thirteen challenges to the constitutionality of Arizona s death penalty scheme to avoid preclusion: 1. The death penalty is cruel and unusual under any circumstances and violates the Eighth and Fourteenth Amendments to the United States Constitution and Article 2, § 15 of the Arizona Constitution. State v. Harrod, 200 Ariz. 309, 320, 26 P.3d 492, 503 (2001). 2. The irrationally Fourteenth Article death in Arizona Amendments 2, § 15 penalty of to the is imposed in violation the United Arizona of States arbitrarily and the Eighth and Constitution and Constitution, as well as Appellant s right to due process under the Fourteenth Amendment to the United States Constitution and Article 2, § 4 of the Arizona Constitution. State v. Beaty, 158 Ariz. 232, 762 P.2d 519 (1988). 3. Application of the death penalty on the facts of this case would constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution and Article 2, §§ 1, 4, and 15 of the Arizona 9 The Appendix is taken verbatim from Kuhs s list of issues raised to avoid preclusion. - 31 - Constitution. 4. has The prosecutor s discretion to seek the death penalty no standards Fourteenth and Amendments therefore to the violates United the and Constitution States Eighth and Article 2, §§ 1, 4, and 15 of the Arizona Constitution. State v. Sansing, 200 Ariz. 347, 361, 26 P.3d 1118, 1132 (2001). 5. Arizona s discriminate violation against of Article Constitution. 6. death poor, 2, is young, §§ 1, 4, and applied male and 13 as to defendants in of so the Arizona Sansing, 200 Ariz. at 361, 26 P.3d at 1132. The absence by sentences penalty Arizona of proportionality courts denies review capital of death defendants due process of law and equal protection and amounts to cruel and unusual punishment Fourteenth in Amendments violation to the of United the Fifth, and Constitution States Eighth, and Article 2, § 15 of the Arizona Constitution. Harrod, 200 Ariz. at review 320, 26 P.3d at 503. Proportionality 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. 7. Arizona s unconstitutional capital because it does sentencing not scheme require prove that the death penalty is appropriate. that the is State Failure to require this proof violates the Fifth, Eighth, and Fourteenth Amendments - 32 - to the United States Constitution and Article 2, § 15 of the Arizona Constitution. State v. Ring, 200 Ariz. 267, 284, 25 P.3d 1139, 1156 (2001) (Ring I), rev d on other grounds by Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 2443 (2002). 8. guide A.R.S. § 13-703.01 provides no objective standards to the sentencing judge in weighing the aggravating and mitigating circumstances and therefore violates the Eighth and Fourteenth Amendments of the United States Constitution Article 2, § 15 of the Arizona Constitution. and State v. Pandeli, 200 Ariz. 365, 382, 26 P.3d 1136, 1153 (2001). 9. Arizona s because it does death not penalty require the scheme is sentencer unconstitutional to find beyond a reasonable doubt that the aggravating circumstances outweigh the accumulated mitigating circumstances, in violation of the Fifth, Eighth, and Constitution Fourteenth and Constitution. Article Amendments 2, §§ 4 to and the 15 United of the States Arizona State v. Poyson, 198 Ariz. 70, 83, 7 P.3d 79, 92 (2000). 10. A.R.S. § 13-703.01 does not sufficiently channel the sentencer s [sic]. Aggravating circumstances should narrow the class of persons eligible for the death penalty and reasonably justify the imposition of a harsher penalty. The broad scope of Arizona s aggravating factors encompasses nearly anyone involved in a murder, in violation of - 33 - the Eighth and Fourteenth Amendments to the United States Constitution and Article 2, § 15 of the Arizona Constitution. Pandeli, 200 Ariz. at 382, 26 P.3d at 1153. 11. Execution by lethal injection is cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution and Article 2, § 15 of the Arizona Constitution. State v. Hinchey, 181 Ariz. 307, 315, 890 P.2d 602, 610 (1994). 12. Arizona s imposition of death the penalty death unconstitutionally penalty whenever at requires least one aggravating circumstance and no mitigating circumstances exist, in violation of the Eighth and Fourteenth Amendments to the United States Constitution and Article 2, § 15 of the Arizona Constitution. State v. Miles, 186 Ariz. 10, 19, 918 P.2d 1028, 1037 (1996). 13. that it Arizona s death penalty statute is unconstitutional in requires defendants to prove their lives should be spared, in violation of the Eighth and Fourteenth Amendments to the United States Constitution Arizona Constitution. and Article 2, § 15 of the State v. Fulminante, 161 Ariz. 237, 258, 778 P.2d 602, 623 (1988). - 34 -
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