State of Arizona v. Michael Jonathon Carlson

IN THE

SUPREME COURT OF THE STATE OF ARIZONA
STATE OF ARIZONA,
Appellee,

v.

MICHAEL JONATHON CARLSON,
Appellant.

No. CR-12-0464-AP
Filed June 18, 2015

Appeal from the Superior Court in Pima County
The Honorable Richard D. Nichols, Judge
No. CR20093544-001
AFFIRMED

COUNSEL:

Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor
General, Lacey Stover Gard, Chief Counsel, Capital Litigation Section, Julie
A. Done (argued), Assistant Attorney General, Phoenix, Attorneys for State
of Arizona

Lori J. Lefferts, Pima County Public Defender, Rebecca A. McLean and
David J. Euchner (argued), Assistant Public Defenders, Tucson, Attorneys
for Michael Jonathon Carlson

JUSTICE BERCH authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES
BRUTINEL and TIMMER joined.

JUSTICE BERCH, opinion of the Court:

¶1 Michael Jonathon Carlson was convicted of two counts of
kidnapping and two counts of first-degree murder. This automatic appeal
 STATE v. CARLSON
Opinion of the Court

follows the imposition of the death penalty. Ariz. R. Crim. P. 31.2(b). We
have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution
and A.R.S. § 13–4031.

I. FACTUAL AND PROCEDURAL HISTORY

¶2 In the spring of 2009, Michael Carlson moved into a
recreational vehicle on a rural property in Pima County. 1 Larry owned the
property and lived there with his family, including his son, daughter-in-
law, and grandchildren. Also living together in a trailer on the property
were KR and Becky.

¶3 Carlson felt close to Larry and thought that KR and Becky
“annoyed” Larry and his family by using methamphetamines, shooting a
gun on the property, and stealing. Believing KR or Becky had stolen a ruby
cross from Larry’s trailer, Carlson decided to make KR and Becky
“disappear.” While holding a gun on KR, he ordered Becky to tie KR up.
Carlson then tied Becky up and ordered the victims into the trunk of his
car. After driving for a while, he noticed that Becky had become untied and
worked her way from the trunk partially into the back seat. Carlson shot
her and then KR to keep them from escaping. He took the bodies back to
the property where he burned them in a pit until they were reduced to ash
and small bone fragments.

¶4 Within a few days, Carlson told Larry that he had murdered
KR and Becky. Nearly a month later, Larry called police and told them that
Carlson was staying in a trailer on his property and had an outstanding
arrest warrant from Texas. Police officers immediately came and arrested
Carlson.

¶5 Ten days later, Carlson called a local television station and
asked to speak to a reporter. When the reporter visited Carlson in the Pima
County Jail, Carlson confessed to murdering KR and Becky, as well as eight
other people. For trial, the parties stipulated that, despite the detail in

1 “We view the facts in the light most favorable to upholding the
verdicts.” State v. Chappell, 225 Ariz. 229, 233 ¶ 2 n.1, 236 P.3d 1176, 1180
n.1 (2010).

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Opinion of the Court

Carlson’s confession, the authorities in the other jurisdictions in which
Carlson admitted committing murders could not find evidence that those
murders had actually occurred.

¶6 The jury found Carlson guilty of two counts of felony murder
and two counts of kidnapping. The jury then found three aggravating
circumstances: Carlson had been convicted of a prior serious offense, A.R.S.
§ 13–751(F)(2); he committed the murders while on release from custody,
id. § 13–751(F)(7); and he committed multiple murders during the
commission of the offense, id. § 13–751(F)(8). In the penalty phase, the jury
determined that Carlson should be sentenced to death for each murder. The
court sentenced Carlson to consecutive twenty-one-year sentences for the
two kidnappings.

II. DISCUSSION

A. Corpus Delicti for Kidnapping

¶7 Carlson argues that the trial court erred by admitting his
television interview as evidence of the two kidnapping counts because the
State never established the corpus delicti for those crimes. He argues that
without his incriminating statements, the State could not establish the
kidnappings. “We review a ruling on the sufficiency of the evidence of
corpus delicti for abuse of discretion.” State v. Morris, 215 Ariz. 324, 333 ¶ 33,
160 P.3d 203, 212 (2007). We will “affirm the trial court’s ruling if the result
was legally correct for any reason.” State v. Perez, 141 Ariz. 459, 464, 687
P.2d 1214, 1219 (1984).

¶8 To introduce a defendant’s confession, the state must present
corroborating evidence from which jurors could reasonably infer that the
crime charged actually occurred. See State v. Hall, 204 Ariz. 442, 453 ¶ 43,
65 P.3d 90, 101 (2003). The standard for the corroborating evidence is not
high. “Only a reasonable inference of the corpus delicti need exist before a
confession may be considered,” and circumstantial evidence suffices to
support the inference. Id. (quoting State v. Gillies, 135 Ariz. 500, 506, 662
P.2d 1007, 1013 (1983)). Nor need the showing be made before the
defendant’s statements are presented, “[a]s long as the State ultimately
submits adequate proof of the corpus delicti before it rests.” Id. (quoting State

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Opinion of the Court

v. Jones ex rel. Cnty. of Maricopa, 198 Ariz. 18, 23 ¶ 14, 6 P.3d 323, 328 (App.
2000)). The rule is designed to prevent convictions based solely on
uncorroborated statements. State v. Chappell, 225 Ariz. 229, 234 ¶ 9, 236 P.3d
1176, 1181 (2010).

¶9 A different corroboration rule, the “trustworthiness
doctrine,” has become the standard in most federal courts and has been
adopted by several state courts. E.g., United States v. Shunk, 881 F.2d 917,
919–21 (10th Cir. 1989); see also State v. Parker, 337 S.E.2d 487, 492 (N.C. 1985)
(observing that “federal courts and an increasing number of states” follow
the trustworthiness approach). That doctrine requires the government “to
introduce substantial independent evidence which would tend to establish
the trustworthiness of the statement.” Opper v. United States, 348 U.S. 84, 93
(1954). As with the traditional approach, the burden is not heavy. “It is
sufficient if the corroboration supports the essential facts admitted
sufficiently to justify a jury inference of their truth.” Id.

¶10 Although this Court has never adopted the trustworthiness
doctrine, our court of appeals addressed it in State v. Morgan, 204 Ariz. 166,
171–72 ¶¶ 17–21, 61 P.3d 460, 465–66 (App. 2002). The trial court in this
case relied on Morgan when it admitted Carlson’s incriminating statements,
and in their briefs in this court, the parties have cited Morgan as though it
adopted the trustworthiness rule. 2

¶11 But Morgan addressed trustworthiness in connection with its
analysis of the closely related crimes exception to the corpus delicti rule.
There, a defendant charged with several sexual offenses confessed to each
charge. Id. at 169 ¶¶ 6–7, 61 P.3d at 463. Evidence established the corpus
delicti for all counts except a charge that the defendant had engaged in oral
sexual contact with a minor. Id. at 172–73 ¶ 23, 61 P.3d at 466–67. After the
court evaluated both the corpus delicti and trustworthiness corroboration
rules, it held that the state had established the corpus delicti for all charges.

2 Several unpublished court of appeals cases have cited Morgan for the
proposition that Arizona has adopted the trustworthiness test. But Morgan
did not purport to do so, and this Court has never done so. Absent
argument from the parties that we should modify or dispense with our
corpus delicti rule, we will continue to apply our current rule.

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Opinion of the Court

Id. It reasoned that, when a defendant confesses to several related crimes,
independent evidence that establishes the commission of the closely related
crimes may suffice to corroborate the confession as a whole, rendering it
admissible. Id.

¶12 Morgan’s analysis comports with this Court’s current rule,
which requires only sufficient corroborating evidence “to warrant a
reasonable inference that the crime charged was actually committed.” State
v. Hernandez, 83 Ariz. 279, 282, 320 P.2d 467, 469 (1958); see also Hall, 204
Ariz. at 453 ¶ 43, 65 P.3d at 101; Chappell, 225 Ariz. at 234 ¶ 9, 236 P.3d at
1181; Gillies, 135 Ariz. at 506, 662 P.2d at 1013. We agree with Morgan’s
reasoning that, under our corpus delicti rule, independent evidence that
establishes the commission of one crime may help corroborate the
commission of other, closely related crimes. See 204 Ariz. at 172–73 ¶ 23, 61
P.3d at 466–67.

¶13 Here, blood and DNA evidence linked to Becky was found in
the back seat and trunk of Carlson’s car. Becky’s purse was found in her
trailer, and testimony indicated that she would have taken it with her had
she left the property voluntarily. This evidence supports an inference that
Carlson kidnapped Becky.

¶14 The defense did not separately object to the corpus delicti
finding as to KR alone, and the evidence of KR’s kidnapping is less clear
than that relating to Becky’s kidnapping. Nonetheless, the evidence was
sufficient to establish the corpus delicti. KR’s DNA was found in the
passenger compartment of Carlson’s car. Although none was found in the
trunk, Carlson had cleaned the trunk and disposed of the bloody floor mat
from it. Moreover, KR and Becky lived together and disappeared at the
same time. Their remains were disposed of at the same place and in the
same manner. This evidence indicates that Becky and KR met with similar
fates and that the kidnappings and murders were closely related in time
and circumstance so that the corroboration of Becky’s kidnapping and KR’s
murder tends to indicate that KR was also kidnapped. See id. Although, as
the defense points out, this evidence could also indicate that KR and Becky
were murdered before being placed in the car, “the prosecution need not
eliminate all inferences tending to show a noncriminal cause [for the
existence of the evidence].” People v. Ochoa, 966 P.2d 442, 474 (Cal. 1998), as

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Opinion of the Court

modified (Cal. 1999) (quoting People v. Jacobson, 405 P.2d 555, 561 (Cal. 1965)).
The trial court therefore did not abuse its discretion in determining that the
State presented sufficient evidence of the corpus delicti for kidnapping.

¶15 Finally, Carlson argues that his confession should have been
excluded because it was inherently untrustworthy given that it included
confessions to eight other uncorroborated murders. As discussed above,
this Court has not adopted the trustworthiness doctrine, and Carlson does
not expressly advocate that we should do so now. But under either the
corpus delicti or trustworthiness corroboration rule, “as long as this very
modest corroboration requirement is satisfied, the ultimate truth or falsity
of the defendant’s confession is a determination left to the jury.” State v.
Housler, 193 S.W.3d 476, 491 (Tenn. 2006) (evaluating a defendant’s
confession that included a significant amount of false information).
Carlson’s confession was consistent with the evidence relating to the
kidnapping and murders of KR and Becky. The defense was free to—and
did—argue to the jury lack of trustworthiness stemming from Carlson’s
confessions to other crimes.

¶16 Under our corpus delicti rule, the State met its burden for both
kidnapping charges. The trial court therefore did not abuse its discretion
in admitting Carlson’s incriminating statements to the television reporter.

B. Accomplice Liability

¶17 After the jury found Carlson guilty of two counts of
kidnapping and two counts of felony murder, the court gave an
Enmund/Tison instruction, which asked the jury to evaluate Carlson’s
participation in the kidnappings. See Tison v. Arizona, 481 U.S. 137 (1987);
Enmund v. Florida, 458 U.S. 782 (1982). To be eligible for the death penalty,
a defendant must have actually killed, intended that a killing take place, or
been a major participant in the underlying felony and recklessly indifferent
to another person’s life—a question that typically arises when the
defendant was one of two or more participants in the crime. 3 See State v.

3 In this case, the prosecutor suggested providing Enmund/Tison
instructions and verdict forms. Defense counsel agreed that the court
should submit the Enmund/Tison forms to the jury, and the trial judge

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Payne, 233 Ariz. 484, 517 ¶¶ 145, 147 & n.6, 314 P.3d 1239, 1272 & n.6 (2013).
The jurors unanimously found Carlson eligible for the death penalty: eight
found that he actually killed the victims and four concluded that he either
intended that a killing take place or was a major participant in the crimes.

¶18 Carlson asserts that the four jurors’ determination that he was
a major participant in the crimes means that they found that he was merely
an accomplice to crimes committed by another. From that premise, he
argues that (1) these four jurors based their verdicts on inappropriate
assumptions, speculation, and conjecture; (2) if the evidence supported
verdicts based on accomplice liability, then the court committed
fundamental error by failing to give appropriate accomplice jury
instructions; and (3) the felony-murder verdicts were for non-existent
crimes because Arizona law does not support a felony-murder conviction
when the defendant was only an accomplice to the predicate felony.
Because Carlson’s premise is flawed, however, we do not reach his
derivative arguments.

¶19 The jurors’ Enmund/Tison findings do not necessarily indicate
that they believed someone else committed the murders. To convict
Carlson of felony murder, the jurors had to conclude only that the victims’
deaths were “cause[d]” in furtherance of the kidnappings. See A.R.S. § 13–
1105(A)(2). They did not need to conclude that Carlson “actually killed”
KR and Becky. Thus, the four jurors could have believed that Becky and
KR died by accident during the commission of the kidnappings. In other
words, the jurors could have concluded that Carlson did not “actually kill”
KR and Becky, but that he nonetheless was responsible for causing their
deaths.

¶20 More likely, having found Carlson guilty of felony murder
and kidnapping—and having been presented no evidence that he acted
with an accomplice and no accomplice instruction having been given—the
jurors were simply confused when presented with the “degree of
participation” instructions and verdict forms. Cf. Payne, 233 Ariz. at 517

complied. Although this was likely well-intentioned, we caution that
giving Enmund/Tison forms in a case that involves only one perpetrator is
unnecessary and potentially confusing to the jurors.

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Opinion of the Court

¶ 147 & n.6, 314 P.3d at 1272 & n.6 (noting that Enmund/Tison findings are
appropriate when the defendant’s participation level is in question, such as
when an accomplice is involved). Whatever else the jury’s Enmund/Tison
findings mean, they confirm the jury’s belief that Carlson was sufficiently
culpable to qualify for the death penalty.

¶21 Absent any evidence that Carlson acted with an accomplice,
the trial court did not commit fundamental error by failing to give an
accomplice instruction. See State v. Ross, 107 Ariz. 240, 242–43, 485 P.2d 810,
812–13 (1971). Because the jury’s Enmund/Tison verdicts do not undermine
the convictions, Carlson’s premise fails and it is unnecessary for the Court
to address his related arguments.

C. Dr. Haney’s Expert Testimony

¶22 During trial, Carlson sought to have Dr. Craig Haney testify
about the brutality in the Texas prison system when Carlson was
incarcerated there and also regarding “personality and behavior
characteristics” and “risk factors” that might explain why Carlson might
have falsely confessed to the television reporter. Defense counsel also
sought to have Dr. Haney testify that Carlson told him that he (Carlson)
had falsely confessed. The court allowed Dr. Haney to testify regarding the
Texas prison system, but precluded testimony that Carlson told Dr. Haney
that he had falsely confessed and Dr. Haney’s explanation for why Carlson
might have done so.

¶23 Carlson argues that precluding the latter categories of Dr.
Haney’s testimony violated Carlson’s constitutional right to present a
complete defense under the Due Process Clause and also violated the
Compulsory Process and Confrontation Clauses. 4 We review a trial court’s
preclusion of expert testimony for an abuse of discretion. See State v.
Salazar-Mercado, 234 Ariz. 590, 594 ¶ 13, 325 P.3d 996, 1000 (2014). Absent

4 Carlson does not cite any authority or make any arguments
regarding the Compulsory Process or Confrontation Clauses. We therefore
do not address them. See In re Aubuchon, 233 Ariz. 62, 64–65 ¶ 6, 309 P.3d
886, 888–89 (2013) (“[W]e consider waived those arguments not supported
by adequate explanation, citations to the record, or authority.”).

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Opinion of the Court

an objection, we review for fundamental error. See State v. Cañez, 202 Ariz.
133, 147 ¶ 30, 42 P.3d 564, 578 (2002).

¶24 Preliminarily, we note that a trial court should not preclude
an expert’s testimony without allowing the defense to make an offer of
proof. Defense counsel here filed a trial memorandum describing Dr.
Haney’s proposed testimony. When the court indicated that it would not
allow testimony on the two categories, defense counsel asked to
supplement its offer of proof, but the trial court denied the request.
Although Carlson does not challenge this denial on appeal and the record
suffices to allow us to determine whether reversible error occurred, a
supplemented offer would have aided our evaluation of the trial court’s
decision. We remind trial judges to allow counsel to make offers of proof,
especially when the court precludes testimony that the defense asserts is
essential to the defense in a capital case. See Ariz. R. Evid. 103.

¶25 The Arizona Rules of Evidence provide a framework for
identifying admissible expert testimony:

A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if: (a) the expert’s scientific, technical,
or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue; (b) the
testimony is based on sufficient facts or data; (c) the testimony
is the product of reliable principles and methods; and (d) the
expert has reliably applied the principles and methods to the
facts of the case.

Ariz. R. Evid. 702. The trial judge must act as a gatekeeper by applying this
rule to admit “only relevant and reliable expert testimony.” Salazar-
Mercado, 234 Ariz. at 593 ¶ 9, 325 P.3d at 999.

¶26 Dr. Haney purportedly relied on Carlson’s statement that he
confessed falsely and also on his explanation for why he did so as the
foundation for the doctor’s opinion that Carlson was susceptible to falsely
confessing. The trial court, however, excluded those statements as
inadmissible hearsay. See Ariz. R. Evid. 801, 802. The rules of evidence

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Opinion of the Court

provide that an expert “may base an opinion on facts or data in the case that
the expert has been made aware of or personally observed.” Ariz. R. Evid.
703. Those facts or data “need not be admissible” so long as “experts in the
particular field would reasonably rely on those kinds of facts or data.” Id.
But “Rule 703 does not authorize admitting hearsay on the pretense that it
is the basis for expert opinion when, in fact, the expert adds nothing to the
out-of-court statements other than transmitting them to the jury.” 29
Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 6273 (Victor James Gold ed. 2015); cf. State v. Lundstrom, 161 Ariz. 141, 148,
776 P.2d 1067, 1074 (1989) (expert testimony that merely parrots or
summarizes another’s opinion is inadmissible). That is the case here
respecting Dr. Haney’s attempt to offer Carlson’s statement that he
confessed falsely. Dr. Haney would not have provided any additional
insight or information regarding that disclosure, and Carlson could not
have made the statement in testifying without submitting to cross-
examination.

¶27 When an expert bases an opinion on facts or data that are not
otherwise admissible, there is “a presumption against disclosure to the
jury,” Fed. R. Evid. 703 advisory committee’s note to 2000 amends., and
even when such facts or data are admissible, they may be introduced only
“for the limited purpose” of showing the basis of the expert’s opinion, Ariz.
R. Evid. 703 cmt. to original 1977 r.; State v. Tucker, 215 Ariz. 298, 314 ¶ 52,
160 P.3d 177, 193 (2007). For two reasons, we conclude that the trial court
did not abuse its discretion.

¶28 First, Carlson never established whether reasonable experts
in the field of false confessions would, as part of their analyses, rely on the
defendant’s own statement that he falsely confessed and that certain factors
caused him to do so. Other courts have held that an expert should not be
able to submit inadmissible hearsay from a biased witness as a basis for an
opinion. See Sikes v. Seaboard Coast Line R.R. Co., 429 So. 2d 1216, 1223 (Fla.
Dist. Ct. App. 1983) (citing Dallas & Mavis Forwarding Co. v. Stegall, 659 F.2d
721 (6th Cir. 1981)). “The trial process is better served when a biased . . .
declarant is required to testify directly and to be subject to cross-
examination.” Dallas & Mavis Forwarding Co., 659 F.2d at 722. Here,
Carlson’s statements were inadmissible, biased hearsay, and he failed to
show that a reasonable expert would rely on them in forming an opinion.

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Opinion of the Court

¶29 Second, the trial court did not abuse its discretion in
determining that allowing Dr. Haney to testify that Carlson said he falsely
confessed would have put Carlson’s statements before the jury cloaked
with the implication that Dr. Haney believed those statements and relied
on them, while shielding Carlson from the rigors of cross-examination. See
id. (allowing a defendant’s statement “to be heard through the testimony of
an [expert] would cloak it with undeserved authority that could unduly
sway a jury”); see also State v. Lindsey, 149 Ariz. 472, 474–75, 720 P.2d 73, 75–
76 (1986). A defendant may not convey self-serving statements regarding
the truth of his own confession through an expert’s testimony. Nor may he
have an expert opine on whether the defendant was telling the truth when
asserting that his confession was false. See State v. Hyde, 186 Ariz. 252, 276,
921 P.2d 655, 679 (1996) (“An expert may not give an opinion as to the
accuracy, reliability, or truthfulness of a [party].”); see also United States v.
Ganadonegro, 805 F. Supp. 2d 1188, 1212 (D.N.M. 2011) (concluding, after
collecting cases, that “[t]he Court would not, as apparently any court would
not, allow the expert to say a particular defendant gave a false
confession. . . . [T]his line prevents the expert from invading the province
of the jury . . . .”).

¶30 Carlson next argues that the trial court abused its discretion
in preventing Dr. Haney from testifying about risk factors that would tend
to make Carlson more likely to confess falsely. The court barred this
testimony because Dr. Haney had not tested or examined Carlson to
determine whether he exhibited the risk factors and did not base his
potential testimony on any studies of his own or by others examining why
a person would falsely confess in a voluntary news interview. His
experience was in the police interrogation context.

¶31 The State did not challenge Dr. Haney’s expertise in
addressing why defendants may succumb to pressure to confess in police
interrogations. But defense counsel admitted that Dr. Haney had no
experience or publications dealing with voluntary confessions to the media.
Nonetheless, given Dr. Haney’s general expertise regarding false
confessions, his “lack of specialization” should have gone “to the weight of
the evidence rather than its admissibility[,] and ‘[v]igorous cross-
examination, presentation of contrary evidence, and careful instruction on

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Opinion of the Court

the burden of proof are the traditional and appropriate means of attacking
shaky but admissible evidence.’” United States v. Wen Chyu Liu, 716 F.3d
159, 168 (5th Cir. 2013) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
579, 596 (1993)); accord State v. Villalobos, 225 Ariz. 74, 81 ¶ 27, 235 P.3d 227,
234 (2010) (“The medical examiner’s specialization in pathology did not
disqualify him from giving expert testimony on pain. Instead, the
physician’s certification went only to the weight of his testimony.”
(citations omitted)). Nonetheless, the trial court did not abuse its discretion
in excluding the testimony because Dr. Haney’s testimony went to
Carlson’s general propensity to lie rather than to the mental or physical
circumstances affecting the voluntariness of this confession. See Perez, 141
Ariz. at 464, 687 P.2d at 1219 (“We are obliged to affirm the trial court’s
ruling if the result was legally correct for any reason.”).

¶32 Although this Court has dealt with expert testimony relating
to the voluntariness of confessions, see State v. Blakley, 204 Ariz. 429, 437–38
¶¶ 33–38, 65 P.3d 77, 85–86 (2003) (evaluating whether the trial court
“prevented [the expert] from rendering a final opinion as to whether the
confession was voluntary”); Hyde, 186 Ariz. at 275–76, 921 P.2d at 678–79
(evaluating expert testimony regarding the “defendant’s mental condition
when he made his statements to the Phoenix police”), we have yet to
directly address the admissibility of expert testimony regarding a
defendant’s propensity to lie. We are guided, however, by several federal
court decisions that have addressed the issue. See Ariz. R. Evid. prefatory
cmt. to 2012 amends. (“Where the language of an Arizona rule parallels that
of a federal rule, federal court decisions interpreting the federal rule are
persuasive but not binding with respect to interpreting the Arizona rule.”);
see also United States v. Benally, 541 F.3d 990, 995 (10th Cir. 2008); United
States v. Adams, 271 F.3d 1236, 1244–45 (10th Cir. 2001); United States v. Hall,
93 F.3d 1337, 1341–45 (7th Cir. 1996); United States v. Shay, 57 F.3d 126, 130–
33 (1st Cir. 1995).

¶33 Federal circuit courts that have allowed expert testimony
regarding a defendant’s propensity to lie have required that the testimony
relate to some mental or personality disorder that would cause the
defendant to lie. See Hall, 93 F.3d at 1344–45; Shay, 57 F.3d at 133–34.
Carlson never suggested that his false confession was caused by any mental
disorder, personality disorder, or a similar affliction, and because Dr.

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Haney did not diagnose or treat Carlson, Dr. Haney had no personal
knowledge regarding whether Carlson had such disorders or conditions.

¶34 Carlson argues that the facts here are “more egregious” than
those in Shay or Hall because personality disorders are “at least understood
on some level.” But those cases did not turn solely on the distinction
between mental disorders and other reasons to lie. The court in Shay
distinguished between testimony based on the expert’s training and
scientific knowledge about a specific disorder or condition and expert
testimony that relies primarily on a defendant’s own perception and
reporting to form a basis for the expert’s opinion about a defendant’s
general propensity to lie. See Shay, 57 F.3d at 133 (observing that the expert
had evaluated and diagnosed the defendant before testifying to that
diagnosis and how it might affect the defendant’s propensity to lie); see also
Hall, 93 F.3d at 1341, 1345 (noting that a psychiatrist who examined the
defendant and the defendant’s medical records should have been allowed
to testify regarding whether the defendant’s mental condition affected his
propensity to lie).

¶35 Unlike blind expert profile testimony, which is generally
admissible because “expert testimony about general behavior patterns . . .
may help the jury understand the evidence,” Salazar-Mercado, 234 Ariz. at
594 ¶ 15, 325 P.3d at 1000, Dr. Haney’s testimony would have gone
“‘beyond the description of general principles of social or behavioral
science’ to offer opinions about ‘the accuracy, reliability or credibility of a
particular [party] in the case being tried.’” Id. (quoting Lindsey, 149 Ariz. at
474–75, 720 P.2d at 75–76). By offering testimony regarding Carlson’s
background and risk factors, Dr. Haney, who was not Carlson’s treating
physician, would have expanded well beyond general principles to
seemingly vouch for the information that Carlson had provided to him. See
Hall, 93 F.3d at 1344 (expert testimony that relies “solely on . . . acceptance
of the victim’s account . . . amounted to nothing more than an invitation to
the jury to believe [the expert’s] assessment of the victim’s truthfulness”).
Any such testimony would have intruded upon the jury’s role, and thus the
trial court did not abuse its discretion when it excluded Dr. Haney’s
testimony regarding Carlson’s general propensity to lie.

¶36 Carlson next argues that, if Dr. Haney’s testimony was

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inadmissible under the rules of evidence, “such mechanistic application of
the rules of evidence would constitute a violation of Carlson’s
constitutional right to present a defense.” But “[a] breach of the . . . Rules
of Evidence does not, in itself, offend the Constitution.” United States v.
Hernandez-Guevara, 162 F.3d 863, 876 n.3 (5th Cir. 1998). Such an argument
“confuses a fundamental right, the right to present a theory of defense, with
one that is not fundamental, the right to present that theory in whatever
manner and with whatever evidence [the defendant] chooses.” Adams, 271
F.3d at 1243.

¶37 While “[t]he ‘blanket exclusion’ of evidence regarding the
circumstances of a confession precludes a fair trial,” id. at 1245 (quoting
Crane v. Kentucky, 476 U.S. 683, 690 (1986)), “evidence related to the
credibility of a confession may be excluded” through proper application of
the rules of evidence. Id. Carlson does not explain how the trial court
applied the rules of evidence in a “mechanistic” way. We therefore
conclude that the court’s exclusion of Dr. Haney’s testimony did not violate
Carlson’s right to present a defense or to a fair trial.

D. Willits Instruction

¶38 Carlson argues that the trial court abused its discretion by
refusing to give a Willits instruction allowing the jury to draw an adverse
inference from the State’s failure to acquire and preserve Larry’s cell phone
and failing to obtain cell phone records “for every cell phone on the
property belonging to . . . the residents.” See State v. Willits, 96 Ariz. 184,
393 P.2d 274 (1964). Carlson asserts that this failure also deprived him of
his due process rights. Because Carlson objected at trial, “[w]e review [the]
rulings regarding a Willits instruction for abuse of discretion.” State v.
Glissendorf, 235 Ariz. 147, 150 ¶ 7, 329 P.3d 1049, 1052 (2014). Because
Carlson did not object on due process grounds, however, we review only
for fundamental error whether denying the Willits instruction deprived
Carlson of due process. See State v. Henderson, 210 Ariz. 561, 567 ¶ 19, 115
P.3d 601, 607 (2005).

¶39 Willits “require[s] trial judges to instruct [jurors] that if they
find that the state has lost, destroyed[,] or failed to preserve material
evidence that might aid the defendant and they find the explanation for the

14
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Opinion of the Court

loss inadequate, they may draw an inference that that evidence would have
been unfavorable to the state.” State v. Youngblood, 173 Ariz. 502, 506, 844
P.2d 1152, 1156 (1993). A defendant is entitled to a Willits instruction if “the
state failed to preserve material and reasonably accessible evidence that
could have had a tendency to exonerate the accused.” Glissendorf, 235 Ariz.
at 150 ¶ 8, 329 P.3d at 1052 (quoting State v. Smith, 158 Ariz. 222, 227, 762
P.2d 509, 514 (1988)). Evidence having a “tendency to exonerate” favors the
defendant or is “potentially useful to a defense theory,” but need not have
“the potential to completely absolve the defendant.” Id. at 150 ¶¶ 9–10, 329
P.3d at 1052. The defendant “must do more than simply speculate about
how the evidence might have been helpful.” Id.

¶40 The record does not show whether Larry’s cell phone was
ever found, making it unclear whether it was reasonably accessible. The
phone records were reasonably available via subpoena, but Carlson does not
specify exactly what data—text histories, call histories, or the contents of
text messages—those records would have contained. Even if we assume,
however, that the State could have secured the potentially relevant phone
and phone record data, Carlson still has not established that this evidence
was likely helpful to his defense.

¶41 Carlson speculates that Larry’s missing phone and phone
records would have been beneficial to him, but does not demonstrate why
this is so. See Smith, 158 Ariz. at 227, 762 P.2d at 514 (Willits instruction not
appropriate when defendant merely speculates that a lost piece of paper
would have contained information implicating someone else in the crime);
see also Perez, 141 Ariz. at 464, 687 P.2d at 1219 (no Willits instruction
required where a lost videotape may have either inculpated or exonerated
the defendant). Carlson therefore has not established that the lost evidence
tended to exculpate him.

¶42 Carlson further argues that the denial of his request for a
Willits instruction violated his due process rights. To prove a violation of
due process, Carlson must establish that the State acted in bad faith when
it failed to acquire or preserve the evidence in question. Glissendorf, 235
Ariz. at 150–51 ¶ 11, 329 P.3d at 1052–53. Because Carlson did not offer any
evidence that the State acted in bad faith when it failed to preserve the cell
phone or phone records, the trial court did not fundamentally err or violate

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Opinion of the Court

his due process rights by denying the requested Willits instruction.

E. Inapplicability of the (F)(2) Aggravator

¶43 Carlson argues that using the kidnappings that were the
predicate felonies for his felony-murder convictions to also aggravate his
sentence under A.R.S. § 13–751(F)(2) fails to narrow the class of offenders
eligible for the death penalty, thereby violating the Eighth Amendment and
the Arizona Constitution’s prohibition on cruel and unusual punishment.
U.S. Const. amend VIII; Ariz. Const. art. 2, § 15.

¶44 Section 13–751(F)(2) allows jurors to consider whether a
defendant has committed prior serious offenses in determining whether to
impose a death sentence:

[The jury may consider whether t]he defendant has been or
was previously convicted of a serious offense, whether
preparatory or completed. Convictions for serious offenses
committed on the same occasion as the homicide, or not committed
on the same occasion but consolidated for trial with the
homicide, shall be treated as a serious offense under this paragraph.

Id. (emphasis added). The last sentence of this statute—which plainly
contemplates that the “serious offense” may include offenses that were
committed at the same time as the homicide—was added by the legislature
in 2003 in response to court rulings that had held otherwise. See 2003 Ariz.
Sess. Laws, ch. 255, § 1 (1st Reg. Sess.); see also State v. Nordstrom, 230 Ariz.
110, 118 ¶ 35, 280 P.3d 1244, 1252 (2012) (“[T]he legislature amended the
(F)(2) aggravator in 2003 to explicitly include contemporaneous convictions
. . . [and] evidently was intended to displace our ruling in State v. Rutledge,
206 Ariz. 172, 175–78 ¶¶ 15–25 & n.3, 76 P.3d 443, 446–49 & n.3 (2003).”).

¶45 In State v. Forde, this Court rejected the argument Carlson now
makes—that the (F)(2) aggravator, when based on crimes that occurred in
connection with the murders in question, fails to narrow the class of
defendants eligible for the death penalty. 233 Ariz. 543, 569 ¶¶ 105–08, 315
P.3d 1200, 1226 (2014). We held there that the (F)(2) aggravator as amended
does not violate the Eighth Amendment because § 13–751(J) sufficiently

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Opinion of the Court

defines “serious offense” so that it “appropriately channels and limits the
sentencer’s discretion.” Id. at 569 ¶ 107, 315 P.3d at 1226. We rejected
Forde’s reliance on Rutledge, a case that dealt with the pre-2003 version of
the statute. Id. at 569 ¶ 108, 315 P.3d at 1226.

¶46 Carlson acknowledges the holding in Forde, but argues that
while Forde mentioned Rutledge, it did not discuss several other cases that
address this issue. But, like Rutledge, the other cases Carlson cites discuss
only the pre-2003 version of A.R.S. § 13–751(F)(2). See State v. Pandeli, 204
Ariz. 569, 571 ¶¶ 5–7, 65 P.3d 950, 952 (2003) (interpreting 2001 version of
statute); State v. Phillips, 202 Ariz. 427, 438–39 ¶¶ 56–57, 46 P.3d 1048, 1059–
60 (2002); State v. (Robert G.) Jones, 197 Ariz. 290, 311 ¶ 64, 4 P.3d 345, 366
(2000); State v. Gretzler, 135 Ariz. 42, 57 n.2, 659 P.2d 1, 16 n.2 (1983); State v.
Ortiz, 131 Ariz. 195, 210–11, 639 P.2d 1020, 1035–36 (1981). Thus, despite
language in Ortiz, Gretzler, and Phillips suggesting that “serious offenses”
should not include contemporaneous crimes, these cases did not interpret
the 2003 amendment and none of these cases rests on a finding of
unconstitutionality.

¶47 Carlson offers two more arguments for why the amended
(F)(2) aggravator fails to narrow the class of offenders eligible for the death
penalty. First, he argues that the list of “serious offenses” under § 13–751(I)5
is “significant[ly] align[ed]” with the enumerated predicate offenses for
felony murder under § 13–1105(A)(2), making nearly every defendant
convicted of felony murder eligible for the death penalty.

¶48 We disagree. Comparing the two statutes reveals that several
predicate offenses for felony murder—including marijuana offenses,
dangerous drug offenses, certain other narcotics offenses, drive-by
shootings, escape, and unlawful flight from a pursuing law enforcement
vehicle—are not “serious offenses” that would allow a jury to find the (F)(2)
aggravator. Compare A.R.S. § 13–1105(A)(2) (enumerating offenses that
may be predicates for felony murder), with A.R.S. § 13–751(J) (enumerating
offenses that qualify as “serious” for purposes of § 13–751). Thus, not every
conviction for felony murder renders the defendant death-eligible under

5 Section 13–751(I) is now § 13–751(J). See 2012 Ariz. Sess. Laws, ch.
207, § 2 (2d Reg. Sess.).

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Opinion of the Court

the (F)(2) aggravator and so the statute still permits some discrimination
among those eligible for the death penalty.

¶49 Second, Carlson argues that “[e]xpanding the death penalty
to include almost all felony murders” contravenes the legislature’s “implied
belief” that felony murder is the only class of first-degree murder “worthy
of hope for release from incarceration.” Rather than imputing such an
unexpressed belief to the legislature, however, we instead rely on the
legislature’s explicit amendment in 2003 to include contemporaneous
“serious offenses” under the (F)(2) aggravator. By that amendment, the
legislature clearly expressed its intent to permit use of predicate crimes as
(F)(2) aggravating circumstances. Thus the use of Carlson’s kidnapping
convictions as both aggravating factors and predicate felonies for felony
murder does not violate the federal or Arizona constitutions.

¶50 Carlson also argues that his Texas conviction for aggravated
robbery does not qualify as an aggravating circumstance because
aggravated robbery in Texas “may be committed in a manner that does not
qualify as a ‘serious offense’ under A.R.S. § 13–751(I).” Because Carlson’s
kidnapping convictions suffice to prove the (F)(2) aggravator, we do not
address this issue.

F. Prosecutorial Misconduct; Jury Instruction

¶51 Carlson argues that the trial court improperly instructed the
jury to consider the circumstances of the crime as additional aggravating
factors to be weighed against the mitigating circumstances when it gave the
following jury instruction:

In reaching a reasoned, moral judgment about which sentence
is justified and appropriate, you must decide how compelling
or persuasive the totality of the mitigating factors is when
compared against the totality of the aggravating factors and
the facts and circumstances of the case. This assessment is not
a mathematical one, but instead must be made in light of each
juror’s individual qualitative evaluation of the facts of the
case, the severity of the aggravating factors, and the quality of
the mitigating factors found by each juror.

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Opinion of the Court

¶52 The defense did not object to this instruction, so we review for
fundamental error. See State v. Gomez, 211 Ariz. 494, 499 ¶ 20, 123 P.3d 1131,
1136 (2005). Relatedly, Carlson argues that the prosecutor committed
misconduct during closing arguments by inviting the jury to consider
circumstances of the crime, such as burning the bodies, during the penalty
phase. He claims that the trial court abused its discretion by overruling his
objections to the prosecutor’s arguments. “When a defendant objects to an
alleged act of prosecutorial misconduct” and raises the overruling of the
objection as error on appeal, we first look to see whether error has occurred;
if it has, “we review the issue for harmless error.” State v. Dann, 220 Ariz.
351, 373 ¶ 125, 207 P.3d 604, 626 (2009).

¶53 Carlson argues that the contested jury instruction and the
prosecutor’s argument were based on an improper reading of A.R.S. § 13–
751(G). See, e.g., Nordstrom, 230 Ariz. at 114 ¶ 9, 280 P.3d at 1248 (relying,
in part, on A.R.S. § 13–751(G)). Section 13–751(G) provides that “[t]he trier
of fact shall consider as mitigating circumstances any factors proffered by the
defendant or the state that are relevant in determining whether to impose a
sentence less than death, including any aspect of the defendant’s character,
propensities or record and any of the circumstances of the offense.” Id.
(emphasis added). Under Carlson’s interpretation, the statute provides that
the trier of fact must consider the circumstances of the offense as mitigating
circumstances, but may not consider those circumstances to show that the
defendant does not deserve leniency.

¶54 We have previously rejected this argument. State v. Ovante,
231 Ariz. 180, 187 ¶¶ 31–32, 291 P.3d 974, 981 (2013). Although Carlson’s
reading of A.R.S. § 13–751(G) comports with the statute’s text, it fails to
account for each juror’s duty to evaluate all the relevant evidence when
determining the defendant’s sentence. See State v. Prince, 226 Ariz. 516, 526–
27 ¶¶ 16–18, 250 P.3d 1145, 1155–56 (2011); see also A.R.S. § 13–752(G)
(allowing the state to present “any evidence that demonstrates that the
defendant should not be shown leniency”). Accordingly, the penalty phase
jury instructions were not erroneous. 6

6 As we have previously noted, asking jurors to “balance,” “weigh,”
or “compare” mitigating factors against aggravating factors “might confuse
or mislead jurors.” State ex rel. Thomas v. Granville (Baldwin), 211 Ariz. 468,

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Opinion of the Court

¶55 Carlson also contends that, by commenting on the burning of
the victims’ bodies, the State impermissibly suggested that jurors could
consider that fact as fulfilling the non-alleged cruel, heinous, or depraved
aggravating circumstance. See A.R.S. § 13–751(F)(6). Although a prosecutor
may argue that the defendant does not deserve leniency based on the facts
of a case, State v. Armstrong, 218 Ariz. 451, 461 ¶ 38, 189 P.3d 378, 388 (2008),
“it is improper [for the state] to argue a non-alleged aggravating
circumstance,” State v. Nelson, 229 Ariz. 180, 189 ¶ 40, 273 P.3d 632, 641
(2012). The prosecutor may, however, argue any circumstances that rebut
the mitigation evidence proffered by the defense. State v. Medina, 232 Ariz.
391, 409 ¶ 79, 306 P.3d 48, 66 (2013). In this case, the State did not argue that
different or additional aggravating circumstances applied; indeed, the
prosecutor took pains to ensure that the jurors understood that the manner
of death did not establish an additional aggravating circumstance. Instead,
the prosecutor’s comments rebutted the defense’s plea for leniency and its
characterization of Carlson as a protector of the innocent.

¶56 The trial court did not abuse its discretion by overruling
defense counsel’s objections to the prosecutor’s closing arguments.

G. Victim Impact Evidence

¶57 Carlson argues that the victim impact evidence violated his
rights “to due process, a fair trial by jury, and to be free from cruel and
unusual punishment.” 7 We review constitutional issues de novo. State v.
Moody, 208 Ariz. 424, 445 ¶ 62, 94 P.3d 1119, 1140 (2004). Because Carlson
objected to the victim impact statements at trial, we review for an abuse of
discretion. State v. Rose, 231 Ariz. 500, 511 ¶ 48, 297 P.3d 906, 917 (2013).

473 ¶ 21, 123 P.3d 662, 667 (2005). Instructions should instead focus on
whether, in each “juror’s individual assessment, the mitigation is of such
quality or value that it warrants leniency.” Id. Terms such as “balance,”
“outweigh,” and “compare” should not be used. See id. This does not mean
that giving the current version of the jury instruction, as set forth above,
constitutes error, but a more precise instruction should be fashioned. See
id.
7 Carlson also asserts that the evidence violated A.R.S. § 13–752(R),
but he failed to cite any authority or make any arguments to that effect.

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Opinion of the Court

¶58 During the penalty phase, a victim “may present information
about the murdered person and the impact of the murder on the victim and
other family members and may submit a victim impact statement in any
format to the trier of fact.” A.R.S. § 13–752(R). The victim may not,
however, “offer any opinion regarding the appropriate sentence to be
imposed.” Ariz. R. Crim. P. 19.1(d)(3); see also Prince, 226 Ariz. at 534 ¶ 65,
250 P.3d at 1163; State v. Bocharski (Bocharski I), 200 Ariz. 50, 62 ¶ 64, 22 P.3d
43, 55 (2001) (“Sentencing recommendations offered by a deceased’s
survivors have no relevance in a capital case.”).

¶59 Becky’s daughter read a letter to the jury in which she stated:
“[Carlson] is a dangerous man. Who will be safe around him? What place
is there in our society for a man who would kill a woman like this?” She
also stated, “I don’t believe that any of us will ever be safe if he’s allowed
freedom in his lifetime.” She then asked: “What punishment should he
face? This is up to you.”

¶60 The victim impact statement appears to advocate for the
death penalty or at least for a sentence of life in prison without the
possibility of parole. This Court has emphasized that “prosecutors and trial
courts [should] prevent [victim impact evidence] presenters from alluding
to or addressing in any way the potential sentence.” Rose, 231 Ariz. at 513
¶ 58, 297 P.3d at 919 (emphasis added).

¶61 The trial court therefore erred in allowing such statements.
The error was not ameliorated by having the victim tell the jurors that the
sentence was up to them. The error here, however, was brief and in passing.
The statement was immediately preceded by the court’s instruction that the
jurors could not consider the victims’ sentencing recommendations, but
could consider the victims’ loss only to rebut mitigation. See State v.
Bocharski (Bocharski II), 218 Ariz. 476, 488 ¶ 53, 189 P.3d 403, 415 (2008). We
have consistently stated our assumption that jurors follow such
instructions. See Perkins v. Komarnyckyj, 172 Ariz. 115, 119, 834 P.2d 1260,
1264 (1992). Any error in this case was therefore harmless. This is not to
say that all such errors are harmless so long as the trial court provides an
appropriate instruction. Rather when, as here, the references were brief and
indirect, a proper limiting instruction may suffice to ensure the jury will not
use the statement improperly. And we again urge prosecutors and judges

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Opinion of the Court

to carefully review potential victim impact evidence for compliance with
the rules. 8

H. Motion for a Change of Judge

¶62 Although he was represented by counsel, Carlson submitted
a handwritten motion for a change of judge at the beginning of the
sentencing hearing. He argues on appeal that the trial court “erred in
refusing to refer the motion for change of judge to the presiding judge” and
that this failure violated his right to a fair and impartial judge. “The
determination of a Rule 10.1 motion lies within the discretion of the trial
judge, and we will not interfere absent an affirmative showing of abuse.”
State v. Schackart, 190 Ariz. 238, 257, 947 P.2d 315, 334 (1997).

¶63 A defendant who is represented by counsel is not entitled to
hybrid representation. State v. Cornell, 179 Ariz. 314, 325, 878 P.2d 1352,
1363 (1994). That is, a represented defendant may not file motions in
addition to those the attorney files. See id. Thus, the court was not required
to hear or rule on the motion and did not err by declining to do so.

I. Mitigation Verdict Form

¶64 Carlson argues that the trial court erred by declining to
provide the jury with a mitigation verdict form, which Carlson requested
at trial, indicating which mitigating factors the jurors considered and which
they found applicable. He argues that this failure restricted his ability to
challenge his death sentence, violating his rights to due process, a full and
fair appeal, effective assistance of counsel, and freedom from cruel and
unusual punishment. We review issues involving constitutionality de
novo. Moody, 208 Ariz. at 445 ¶ 62, 94 P.3d at 1140.

8 In a case such as this, when the victim reads a letter or speaks from
notes, the prosecutor has a duty to review the contents of the proposed
presentation to help prevent introduction of statements regarding the
defendant’s sentence. If in doubt, the issue should be referred to the judge
before the jury is permitted to hear any statement advocating a potential
sentence.

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 STATE v. CARLSON
Opinion of the Court

¶65 Carlson concedes that this Court has rejected these arguments
on several occasions. See, e.g., Forde, 233 Ariz. at 573–74 ¶ 134, 315 P.3d at
1230–31 (stating that “because jurors ‘do not have to agree unanimously
that a mitigating circumstance has been proven to exist’ and ‘[e]ach juror
may consider any mitigating circumstance found by that juror in
determining the appropriate penalty,’ A.R.S. § 13–751(C), provision of a
special verdict form would have been inappropriate”). We again reject
them here.

J. Abuse of Discretion Review

¶66 The jury found three aggravating factors beyond a reasonable
doubt: Carlson committed prior serious offenses under A.R.S. § 13–
751(F)(2), he was on release from a state department of corrections under
§ 13–751(F)(7), and he committed multiple homicides under § 13–751(F)(8).
The jury also considered mitigation evidence, which included that Carlson
had a difficult childhood and suffered several mental-health crises, lacked
support systems, did not premeditate his crime, felt remorse, had a
protective nature, and did not pose a risk of future dangerousness in prison.

¶67 This Court reviews death sentences “to determine whether
the trier of fact abused its discretion in finding aggravating circumstances
and imposing a sentence of death.” A.R.S. § 13–756(A); State v. Delahanty,
226 Ariz. 502, 508 ¶ 36, 250 P.3d 1131, 1137 (2011). We review de novo
Carlson’s claim that A.R.S. § 13–756(A) violates the Constitution. State v.
Martinez, 218 Ariz. 421, 434 ¶ 59, 189 P.3d 348, 361 (2008).

¶68 Section 13–756(A) provides that, for murders that occurred
after August 1, 2002, as these did, this Court must “review all death
sentences to determine whether the trier of fact abused its discretion in
finding aggravating circumstances and imposing a sentence of death.”
Under this standard, we will affirm a decision if it is supported by
reasonable evidence in the record. Morris, 215 Ariz. at 341 ¶ 77, 160 P.3d at
220. Carlson argues that this standard fails to fulfill the requirement that
this Court conduct a “meaningful review” of each death sentence, in
violation of the Eighth and Fourteenth Amendments, and Clemons v.
Mississippi, 494 U.S. 738, 748–49 (1990).

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 STATE v. CARLSON
Opinion of the Court

¶69 This Court has previously rejected similar constitutional
challenges to the statutory review standard. See Martinez, 218 Ariz. at 434
¶¶ 59–62, 189 P.3d at 361 (noting that the Supreme Court has “never
required de novo review of death sentences”); see also State v. Boyston, 231
Ariz. 539, 553 ¶ 71, 298 P.3d 887, 901 (2013); Rose, 231 Ariz. at 515 ¶ 71, 297
P.3d at 921. Carlson acknowledges that this issue has been repeatedly
raised and rejected, but raises four related arguments: (1) the statute’s
abuse of discretion standard is not suitable for review of a jury verdict
because such verdicts are usually reviewed for sufficiency of the evidence
and abuse of discretion is usually used for review of trial court rulings, (2)
trial court rulings that are reviewed for abuse of discretion should be
reviewed de novo if they involve mixed questions of fact and law, (3) the
purpose of reviewing the jury verdict is to determine if the verdict violates
the Eighth Amendment—a constitutional question that should be reviewed
de novo, and (4) as a factual matter, abuse of discretion review has not
proved meaningful because, since § 13–756(A) was enacted by the
legislature, this Court has reviewed twenty-nine capital cases and has not
reversed the death sentence in any of them.

¶70 But the “abuse of discretion” label is not relevant to whether
A.R.S. § 13–756(A) violates the Constitution. Carlson must show that the
standard as applied violates the Constitution or Supreme Court case law by
providing review that is not constitutionally “meaningful.” Carlson points
to nothing to indicate that abuse of discretion review fails to meet that
standard. He does not cite any cases that require independent review or de
novo review as the sole means to provide meaningful appellate review. See
Clemons, 494 U.S. at 749 (requiring only “meaningful appellate review”); see
also Parker v. Dugger, 498 U.S. 308, 321 (1991) (same, and requiring a “review
of the individual record in th[e] case”).

¶71 The Eighth Amendment “requires that a sentencer’s
discretion be channeled and limited to avoid the risk of wholly arbitrary
and capricious action.” State v. Hinchey, 165 Ariz. 432, 436, 799 P.2d 352, 356
(1990) (citing Maynard v. Cartwright, 486 U.S. 356, 361 (1988)). Carlson does
not show that the Arizona statute results in “arbitrary and capricious
action.” Rather, abuse of discretion review still requires the Court to review
the entire record and ensure that the aggravating circumstances were
correctly found and applied and the imposition of the death penalty was

24
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Opinion of the Court

not improper in light of the mitigating circumstances.

¶72 Carlson next argues that the jury abused its discretion in
imposing the death penalty because the aggravating factors in this case
deserved little weight while the mitigation presented at trial was
overwhelming.

¶73 The State alleged and proved, beyond a reasonable doubt,
three aggravating factors. Carlson argues that the (F)(2) aggravator,
conviction of a prior serious offense, deserves little weight because the
serious offense Carlson committed was the same offense for which he was
on parole when he committed the murders, and therefore the same
conviction is being used to satisfy both the (F)(2) and the (F)(7) aggravators.
See A.R.S. § 13–751(F). Because “the aggravators serve different public
policy rationales,” however, the jury was entitled to consider each factor.
See Medina, 232 Ariz. at 410 ¶ 86, 306 P.3d at 67. Moreover, the (F)(2)
aggravator was also supported by Carlson’s kidnapping convictions, see
supra ¶¶ 48–49, which did not support the (F)(7) aggravator.

¶74 Carlson also argues that the (F)(2) aggravator deserves less
weight because the serious crime of kidnapping was committed
contemporaneously with the murders. As discussed above, however, “the
legislature amended the (F)(2) aggravator in 2003 to explicitly include
contemporaneous convictions.” Nordstrom, 230 Ariz. at 118 ¶ 35, 280 P.3d
at 1252. The jurors were therefore entitled to consider the contemporaneous
kidnapping convictions in finding the (F)(2) aggravator.

¶75 Next, Carlson argues that the weight of the (F)(7) aggravator,
committing a crime while on release from prison, was “lessened by the fact
that the undisputed evidence showed that the Texas prison system is the
most brutal and savage in the entire country.” But nothing in § 13–751(F)(7)
requires the jury to discount the seriousness of this factor based on the
circumstances of the defendant’s prior incarceration.

¶76 Finally, Carlson argues that the (F)(8) aggravator, which we
have held is entitled to great weight, State v. Hampton, 213 Ariz. 167, 184
¶ 81, 140 P.3d 950, 967 (2006), deserves less weight here because some jurors
might have believed that Carlson was not the only participant in the crimes.

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 STATE v. CARLSON
Opinion of the Court

The defense presented this argument to the jury, which considered and
apparently rejected it when determining whether death sentences were
warranted.

¶77 Although Carlson presented considerable mitigation
evidence, “we will not reverse the jury’s decision so long as 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. Given the serious aggravation proven in this case, we
cannot say that the jury abused its discretion in finding that the mitigation
was not sufficiently substantial to call for leniency. See id. at 341 ¶ 82, 160
P.3d at 220. The jury therefore did not abuse its discretion when it
unanimously concluded that death sentences were warranted.

K. Consecutive Sentences for Kidnapping

¶78 Carlson received a death sentence for each murder conviction,
and twenty-one years’ imprisonment for each kidnapping conviction, with
each sentence to run consecutively. Because Carlson did not object at trial
to the imposition of consecutive sentences, we review his claim that such
sentences are illegal for fundamental error. See Henderson, 210 Ariz. at 567
¶ 19, 115 P.3d at 607.

¶79 Carlson argues that the consecutive sentences imposed for the
felony-murder charges and the underlying kidnapping charges violate
A.R.S. § 13–116, which states that “[a]n act or omission which is made
punishable in different ways by different sections of the laws may be
punished under both, but in no event may sentences be other than
concurrent.” He argues that because the kidnapping is the predicate felony
for the felony-murder charge and therefore part of the crime, the
kidnapping and murder are really part of the “same offense” and cannot be
punished by consecutive sentences.

¶80 To determine whether facts constitute a “single act” that
would require concurrent sentences under § 13–116, Arizona courts apply
the three-part test set forth in State v. Gordon, 161 Ariz. 308, 312–13, 778 P.2d
1204, 1208–09 (1989). First, the court considers “the facts of each crime
separately, subtracting from the factual transaction the evidence necessary

26
 STATE v. CARLSON
Opinion of the Court

to convict on the ultimate charge. . . . If the remaining evidence satisfies the
elements of the other crime, then consecutive sentences may be permissible
under A.R.S. § 13–116.” Id. at 315, 778 P.2d at 1211. The court then considers
“whether, given the entire ‘transaction,’ it was factually impossible to
commit the ultimate crime without also committing the secondary crime. If
so, then the likelihood will increase that the defendant committed a single
act under A.R.S. § 13–116.” Id. Finally, the court considers “whether the
defendant’s conduct in committing the lesser crime caused the victim to
suffer an additional risk of harm beyond that inherent in the ultimate crime.
If so, then ordinarily the court should find that the defendant committed
multiple acts and should receive consecutive sentences.” Id.

¶81 Carlson argues that a felony-murder conviction that is based
on only one predicate felony will always fail the Gordon test. The “ultimate
crime” is the more serious crime: felony murder. That crime consists of the
fact that someone died during the course of the predicate felony (here,
kidnapping). Once these facts are “subtracted,” no facts are left to satisfy
the elements of the other crime.

¶82 Carlson’s argument is built on a faulty premise. The
“ultimate crime” for which he was convicted is first-degree murder,
regardless of whether the jury convicted on a theory of premeditated or
felony murder. See State v. Miniefield, 110 Ariz. 599, 603, 522 P.2d 25, 29
(1974) (“[T]he fact that the [predicate felony] supplied the premeditation
necessary for first-degree murder does not make it part of the same
offense.”); see also State v. Encinas, 132 Ariz. 493, 496, 647 P.2d 624, 627 (1982)
(“In Arizona, first degree murder is only one crime regardless whether it
occurs as a premeditated murder or a felony murder.”). Thus, Carlson’s
convictions satisfy the Gordon test. After subtracting the murders from the
factual transaction, the kidnappings remain. It is possible to commit
kidnapping without murdering the victims, or murder without kidnapping
the victims. Finally, the kidnappings created a risk of emotional and
physical harm to Becky and KR in addition to the harms caused by their
ultimate murders. See Gordon, 161 Ariz. at 315–16, 778 P.2d at 1211–12
(physically restraining the victim “increased her harm or risk of harm
beyond that inherent in the ultimate crime”). The imposition of consecutive
sentences therefore did not violate § 13–116.

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Opinion of the Court

¶83 This result comports with State v. Girdler, 138 Ariz. 482, 488–
89, 675 P.2d 1301, 1307–08 (1983), which held that sentences for felony
murder and the predicate felony for the murder may run consecutively.
Carlson argues that we should overrule Girdler because our later opinion in
Gordon prohibits consecutive sentences for “every felony murder case
where only one predicate felony exists.” As noted above, we reject this
interpretation of Gordon. Moreover, since Gordon, we have continued to
uphold consecutive sentences for a felony murder and its predicate offense.
See State v. Runningeagle, 176 Ariz. 59, 67, 859 P.2d 169, 177 (1993). The trial
court therefore did not err by imposing consecutive sentences for Carlson’s
kidnapping convictions.

¶84 Carlson also argues that imposing consecutive sentences for
kidnapping and felony murder violates the Double Jeopardy Clause. We
disagree. “The Double Jeopardy Clause bars a second prosecution for the
same offense after conviction or acquittal and bars multiple punishments
for the same offense.” State v. Siddle, 202 Ariz. 512, 515 ¶ 8, 47 P.3d 1150,
1153 (App. 2002). As set forth above, Carlson did not receive “multiple
punishments for the same offense.” He was sentenced separately for felony
murders and for two counts of kidnapping, which created harm to the
victims in addition to the harm ultimately caused by death. “[W]hen
statutes describe different offenses, consecutive sentences are permissible
without implicating the prohibition against double jeopardy.” State v.
(Shawnte) Jones, 235 Ariz. 501, 504 ¶ 13, 334 P.3d 191, 194 (2014) (quoting
State v. Eagle, 196 Ariz. 188, 190 ¶ 6, 994 P.2d 395, 397 (2000)) (holding
double jeopardy not violated by felony-murder charge and underlying
child-abuse charge); see also Siddle, 202 Ariz. at 517 ¶¶ 13, 15, 47 P.3d at 1155
(recognizing that “[f]elony murder and the predicate felony are distinct
crimes and may be punished separately in a single trial without running
afoul of double jeopardy principles”). Thus, Carlson’s challenges to the
consecutive sentences under both § 13–116 and the Double Jeopardy Clause
fail.

III. CONCLUSION

¶85 For the foregoing reasons, we affirm Carlson’s convictions

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Opinion of the Court

and sentences. 9

9 Carlson lists twenty-one additional issues, which he acknowledges
have previously been rejected by this Court, to preserve them for future
review. We decline to revisit those issues.

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