Arizona v. Prince

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Appellant Wayne Prince, Jr. was convicted of first degree murder for the death of his step-daughter and for the attempted murder of his wife. The jury found Appellant guilty, and the trial judge sentenced Appellant to death. The sentence was vacated and remanded by the Supreme Court. Under the law in effect when Appellant killed his step-daughter, the trial judge decided whether to impose the death penalty, but a jury needed to determine whether there were mitigating circumstances from the case that might warrant life imprisonment. A penalty-phase was impaneled, and it found no mitigating factors to spare Appellant from the death sentence. The second jury sentenced Appellant to death. Appellant appealed, citing among other issues that the second jury’s sentence gave the State a second chance to seek a death sentence thus violating the ex post facto clauses of the U.S. and Arizona Constitutions. Upon re-review, the Supreme Court was not persuaded by Appellant’s ex post facto argument, and affirmed the trial court’s death sentence.

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

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