State of Arizona v. Dauntorian Lydel Sanders

IN THE

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

v.

DAUNTORIAN LYDEL SANDERS,
Appellant.

No. CR-14-0302-AP
Filed September 13, 2018

Appeal from the Superior Court in Maricopa County
The Honorable Rosa Mroz, Judge
No. CR2009-157459
AFFIRMED

COUNSEL:

Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor
General, Lacy Stover Gard, Chief Counsel, Andrew S. Reilly (argued),
Assistant Attorney General, Capital Litigation Section, Phoenix, Attorneys
for State of Arizona

Michael S. Reeves (argued), Phoenix, Attorney for Dauntorian Lydel
Sanders

JUSTICE GOULD authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE BRUTINEL, and JUSTICES
PELANDER, TIMMER, and BOLICK, and JUDGE CRUZ joined. *

*
Justice John R. Lopez IV has recused himself from this case. Pursuant to
article 6, section 3, of the Arizona Constitution, the Honorable Maria Elena
Cruz, Judge of the Arizona Court of Appeals, Division One, was designated
to sit in this matter.
 STATE V. SANDERS
Opinion of the Court

JUSTICE GOULD, opinion of the Court:

¶1 Dauntorian Lydel Sanders was sentenced to death after a jury
found him guilty of first degree murder and two counts of child abuse. We
have jurisdiction of this automatic appeal pursuant to article 6, section 5(3),
of the Arizona Constitution and A.R.S. § 13-4031. We affirm Sanders’
convictions and sentences.
I.

¶2 On August 31, 2009, Sanders called 911 to report that his
girlfriend’s child, three-year-old Schala Vera, was not breathing. 1 A police
officer went to the home, and Sanders directed him to an upstairs bathroom,
where he found Schala lying on the floor. Schala’s mother, Susan
Witbracht, was kneeling over her, crying and begging Schala to breathe.
The officer observed that Schala’s skin was “very light blue in color,” her
mouth was open, and her eyes were “rolled back in her head.” He also
noticed that she was “heavily” bruised, particularly between her waist and
her knees and from her shoulders to her elbows. The officer performed
CPR on Schala until paramedics arrived and transported her to the hospital.
The doctors could not revive Schala and she was pronounced dead at the
hospital.

¶3 Chandler Police Detective Chris Keipert spoke with Sanders
at the hospital. Sanders told Detective Keipert that he went to Walgreens
to buy cigarettes and left Schala at home with Susan. When he returned to
the house to retrieve his wallet, he checked on Schala, who was in the
bathroom using the toilet, and “she was fine.” He went back to Walgreens
and was gone “[f]ive to ten minutes.” When he returned home the second
time, he checked on Schala again and she wasn’t breathing. Sanders could
not explain why Schala stopped breathing, claiming there had been no
problems other than “the little girl won’t eat her dinner.”

¶4 When Detective Keipert asked Sanders about Schala’s bruises,
Sanders admitted they were “from when she got a spanking.” He said the

1We view the facts in the light most favorable to sustaining the jury’s
verdict. State v. Gunches (Gunches I), 225 Ariz. 22, 25 ¶ 14 (2010).

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Opinion of the Court

spanking occurred around 9:00 p.m. the night before and that both he and
Susan had spanked Schala with a “cloth-like belt.” He claimed that was the
last time she had been spanked.

¶5 Later that night, and continuing the following day, Detective
Ivan Kaminsky interviewed Sanders at the Chandler Police Department.
Initially, Sanders essentially repeated the story he had told
Detective Keipert. Sanders added, however, that he and Susan had been
punishing Schala by spanking her with a belt. He estimated that they
would spank Schala “four or five” times “once or twice a week” with either
a leather belt or a military belt. He said the discipline began “a couple
weeks after” Schala returned to Arizona in late May or early June 2009 after
living in Iowa with Susan’s relatives for several months.

¶6 As the interview continued, Sanders’ story changed. Sanders
admitted that Schala was hit with a belt on the day of her death. He claimed
that Susan struck Schala with a leather belt “maybe three or four” times for
“not listening.” He also stated that Schala’s bruises on both her legs had
been there since the Saturday before her death because both he and Susan
struck her with a belt that day. Sanders maintained, however, that “[t]he
only thing we use is a belt.” He also denied hitting Schala with the buckle,
because that was the part he held when he was hitting her. Sanders stated
that he put tape around the buckle to protect his hand. During a search of
the residence, police found a black belt with tape around the buckle on the
bathroom counter. Sanders identified the belt as the one he used to strike
Schala.

¶7 When Detective Kaminsky asked Sanders whose fault it was
that Schala was beaten to death, Sanders stated that he would “take full
blame” because he’s the male and he’s “more physical.” Sanders also
admitted that he “accidentally” hit Schala in the head with the bathroom
door when he came home from Walgreens to get his wallet. He stated that
he beat Schala shortly before he left for Walgreens because “she just didn’t
listen at all” and “just kept going.” Sanders explained that Schala was
supposed to be putting her underwear back on after using the toilet, “but
she just sat there” on the bathroom floor. Because she was not listening to
him, Sanders started hitting her legs with the belt. She tried to stand up but
fell, and he continued to hit her. She then leaned forward with her face
between her knees and he struck her on the back.

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Opinion of the Court

¶8 An autopsy was performed by Maricopa County Medical
Examiner Kevin Horn, M.D. Dr. Horn found multiple abrasions on Schala’s
head and face. The autopsy revealed a subdural hemorrhage under her
scalp that was, according to Dr. Horn, caused by “more than just an
everyday force.” Dr. Horn opined that the injury was similar to injuries
caused by a fall from a significant height, a blow to the head, or a motor
vehicle accident.

¶9 There were additional bruises and abrasions on Schala’s torso
and above and around her genitalia. Dr. Horn also found abrasions near
Schala’s left armpit, arms, back, buttocks, and thighs that he identified as
“pattern injuries” consistent with a belt.

¶10 The most extensive bruising was to Schala’s arms and legs.
Dr. Horn noted “diffuse contusion” to those areas, meaning the bruises
overlapped and “cover[ed] the entire surface.” He also noted “very severe
swelling of all four of her extremities.” In both Schala’s arms and legs,
Dr. Horn diagnosed rhabdomyolysis, which he explained “is a long way of
saying that the muscle has died and fallen apart.” He also diagnosed
compartment syndrome, which occurs when the muscle swells so much
that it cuts off its own blood supply. Dr. Horn testified that compartment
syndrome is typically seen in “victims of crushing trauma, like motor
vehicle accidents, people that have been pinned in a wreckage” and in
“earthquake areas where people have been crushed in buildings.” Dr. Horn
opined that it was not possible for a belt alone to have caused these injuries;
rather, “[s]ignificant crushing force” must have caused the injuries to
Schala’s arms and legs. In his opinion, these injuries showed that Schala
must have been squeezed, kicked, punched, and/or thrown against a
surface or object in addition to being struck with a belt.

¶11 Dr. Horn took tissue samples from Schala’s arms and legs and
performed an iron stain test to try to determine the age of her bruises. On
one section from her right leg he found “very rare microphages and very
rare staining for iron” amongst “a sea of red blood cells,” indicating “fresh
injury possibly over an older injury.” Because her legs were so extensively
bruised he noted the newer bruises could be masking older bruises.

¶12 Ultimately, Schala’s cause of death was determined to be
“multiple blunt force injuries.”

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Opinion of the Court

¶13 Both Sanders and Susan were charged with first degree
murder and four counts of child abuse (Susan’s case was later severed from
Sanders’ case). The trial court later granted the State’s motion to dismiss
two counts of child abuse.

¶14 At trial, the jury found Sanders guilty of first degree murder
and two counts of child abuse. In the aggravation phase, the jury found
three aggravating factors: (1) Sanders was previously convicted of a serious
offense (child abuse), see A.R.S. § 13-751(F)(2); (2) the offense was
committed in an especially heinous, cruel or depraved manner, see id.
§ 13-751(F)(6); and (3) Sanders murdered a child under fifteen years of age,
see id. § 13-751(F)(9). Based on evidence that both Sanders and Susan beat
Schala, the jury also made an Enmund-Tison finding that Sanders killed
Schala. See Enmund v. Florida, 458 U.S. 782, 788 (1982); Tison v. Arizona,
431 U.S. 137, 157–58 (1986). In the penalty phase, after considering the
mitigation evidence, the jury determined that Sanders should be sentenced
to death. The trial court imposed consecutive presumptive sentences for
the child abuse convictions.
II.

Simmons Instruction

¶15 Sanders argues the trial court violated his rights under the
Sixth, Eighth, and Fourteenth Amendments by instructing the jurors, over
his objection, that a life sentence includes the “possibility of release from
prison after serving 35 years.” See A.R.S. § 13-751(A). Sanders claims that
pursuant to Simmons v. South Carolina, 512 U.S. 154 (1994), the trial court
reversibly erred by failing to instruct the jury that he was ineligible for
release or parole. “We review de novo whether the court properly
instructed the jury.” State v. Rushing, 243 Ariz. 212, 221 ¶ 36 (2017).

¶16 In Simmons, the United States Supreme Court held that if “the
defendant’s future dangerousness is at issue, and state law prohibits the
defendant’s release on parole, due process requires that the sentencing jury
be informed that the defendant is parole ineligible.” 512 U.S. at 156
(plurality opinion); see also id. at 178 (O’Connor, J., concurring). In Kelly v.
South Carolina, 534 U.S. 246, 248 (2002), the Court stated that a defendant’s
future dangerousness is at issue if it is “‘a logical inference from the
evidence,’ or was ‘injected into the case through the State’s closing
argument.’” Id. at 252 (quoting State v. Kelly, 540 S.E.2d 851, 857 (S.C. 2001));

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Opinion of the Court

see also State v. Escalante-Orozco, 241 Ariz. 254, 285 ¶ 119 (2017) (holding that
the “prosecutor [does] not have to explicitly argue future dangerousness
for it to be at issue; instead, it is sufficient if future dangerousness is ‘a
logical inference from the evidence’ or is ‘injected into the case through the
State’s closing argument’” (citation omitted)).

¶17 Sanders is not eligible for parole and cannot be released from
prison unless his sentence is commuted by the Governor. See A.R.S. § 41-
1604.09(I) (2009) (stating section regarding parole eligibility “applies only
to persons who commit felony offenses before January 1, 1994”); Lynch v.
Arizona, 136 S. Ct. 1818, 1819–20 (2016) (holding that the possibility a
defendant could be eligible for executive clemency does not justify refusing
a parole-ineligibility instruction). Accordingly, if Sanders’ future
dangerousness was at issue, the trial court’s erroneous instruction violated
his due process right to inform the jury that he was ineligible for parole or
release.
Future Dangerousness

¶18 In a capital case, placing future dangerousness at issue invites
the jury to assess whether the defendant’s propensity for violence is so great
that imposing death is the only means to protect society. See California v.
Ramos, 463 U.S. 992, 1003 (1983). Here, because there are significant factual
differences between Sanders’ case and those cases where a defendant’s
future dangerousness was at issue, we conclude the trial court’s instruction
did not violate Sanders’ due process rights.

¶19 Significantly, Sanders had no prior arrests or convictions for
violent acts, and there is no evidence that he had a history of violent or
assaultive behavior. In contrast, future dangerousness is usually placed at
issue when evidence is presented to the jury demonstrating the defendant’s
propensity for violence and unlawful behavior. See, e.g., Kelly, 542 U.S. at
249, 252–53 (holding the jury was invited to consider the defendant’s future
dangerousness based on testimony that defendant created a shank while in
prison and made an escape attempt that included a plan to lure a female
guard into his cell to be used as a hostage, as well as testimony by the State’s
psychologist that the defendant was a sadist as a child and had developed
an inclination to kill anyone “who rubbed him the wrong way”); Rushing,
243 Ariz. at 222 ¶¶ 40–41 (finding future dangerousness was placed at issue
based on evidence that defendant “shot his stepfather in the back of the
head, killing him while he slept”; “threatened officers and got into fights in

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Opinion of the Court

prison”; hid “two shanks [] inside his rectum” while in prison; and that the
prosecutor elicited testimony “from a prison expert that [defendant] was
affiliated with the Aryan Brotherhood, once planned to form a Skinhead
group ‘to bring things back in order’ in Prescott upon release from prison,
and accumulated disciplinary violations, including threats to kill
corrections officers”); Escalante-Orozco, 241 Ariz. at 285 ¶ 121 (stating that
defendant’s future dangerousness was at issue when, during the penalty
phase, the prosecutor presented evidence that the defendant “choked his
ex-wife” and “threatened her life” by holding a “knife to her throat”;
threatened his ex-wife by biting off “part of someone’s finger in a fight” and
showing it to her; and, on another occasion, fought with his ex-wife, “tore
off her clothes, threatened her with a knife, and dragged her outside by her
hair while she was naked”).

¶20 The circumstances surrounding Schala’s murder did not
place Sanders’ future dangerousness at issue by suggesting that the death
penalty was the only means to protect society. See Ramos, 463 U.S. at 1003.
The record shows that Sanders committed this murder in the context of a
specific domestic situation that came to a head in the summer of 2009.
Specifically, at the time of the murder, Sanders was living in cramped,
stressful conditions in his mother’s house, where neither Schala nor Susan
were welcome; Sanders and Susan were chronically unemployed, causing
severe financial distress; Susan had abdicated parenting responsibilities,
thrusting Sanders into the role of the sole responsible parent; and Sanders
was suffering from undiagnosed, untreated PTSD.

¶21 Unlike Sanders’ case, cases before this Court involving future
dangerousness have entailed a random or predatory murder involving a
stranger who had the misfortune of crossing the defendant’s path. See, e.g.,
State v. Hulsey, 243 Ariz. 367, 375 ¶¶ 2–5 (2018) (following a traffic stop, the
defendant, who was a passenger in the car and had an outstanding warrant,
opened fire and killed a police offer when the officer asked him to step out
of the car); Rushing, 243 Ariz. at 216 ¶¶ 2–6 (defendant beat and stabbed his
prison cellmate after a few weeks of being housed together); Escalante-
Orozco, 241 Ariz. at 265 ¶¶ 2–5 (defendant, a live-in maintenance worker at
an apartment complex, beat, raped, and stabbed a resident, and then sold
his car and fled to Mexico, remaining at-large for over six years). In such
cases, the inference that the defendant posed a danger to society was far
stronger than in Sanders’ case.

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Opinion of the Court

¶22 Sanders claims, however, that there was evidence, extrinsic to
Schala’s murder, showing his propensity for violence. Specifically, Sanders
points to evidence that (1) he was investigated for rape while he was in the
Marine Corps, and (2) he was involved in a “choking” incident with Susan.

¶23 The rape investigation was referenced during the testimony
of Dr. Smith, a mitigation expert who testified about Sanders’ PTSD.
Dr. Smith testified that his evaluation and diagnosis of Sanders were based
largely on Sanders’ self-reporting. At one point during his examination,
defense counsel asked Dr. Smith whether Sanders had advised him that
“while he was in California he was charged with an offense” and “those
charges were dropped.” Dr. Smith testified that Sanders had reported this
incident but did not disclose the nature of the charges.

¶24 The State attempted to impeach Dr. Smith’s PTSD diagnosis.
To do so, the prosecutor asked a series of questions about Sanders’
purported lack of full disclosure during his examination. In line with this
questioning, at one point the prosecutor asked Dr. Smith if Sanders had
disclosed that his prior criminal investigation was for rape. Dr. Smith
stated that Sanders had not.

¶25 The prosecutor’s question to Dr. Smith did not elicit
information or itself suggest that Sanders was in fact a rapist or had a
propensity for violence. We recognize that the prosecutor should have been
more careful about this question’s potentially prejudicial impact.
However, this isolated question was the only reference to the rape
investigation, and the prosecutor never argued or discussed it in her closing
argument. This fleeting episode did not create a specter of future
dangerousness.

¶26 The “choking incident” was introduced by defense counsel
during her direct examination of Susan’s cousin, Bianca Smallwood.
Defense counsel presented this testimony as part of Sanders’ mitigation
evidence. Specifically, in questioning Bianca, defense counsel sought to
establish the stressful domestic circumstances that led to Schala’s murder.
See supra ¶ 20. In this context, defense counsel asked Bianca about an
incident where Susan threw Sanders’ expensive remote-control helicopter
across the room, and Sanders reacted by “grabb[ing] her by the throat.”

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Opinion of the Court

¶27 Bianca testified that this was the only time she saw Sanders
exhibit any violence toward Susan. Additionally, the prosecutor sought to
establish that the incident never occurred. On cross-examination the State
sought to show when Bianca claimed this incident occurred, Sanders could
not afford an expensive remote-control helicopter. The State also presented
testimony from Detective Kaminsky that (1) no report was made to the
police about this incident, and (2) there were no police reports regarding
any other domestic violence incidents occurring between Sanders and
Susan.

¶28 The State never argued that the helicopter incident showed
that Sanders was a violent or dangerous person. Indeed, the State argued
that the incident, if it occurred, was an anomaly in Sanders’ relationship
with Susan, and that everything between them appeared to be “fine.” The
sole reference the State made to the incident stressed this fact:

Ladies and gentlemen, [Sanders and Susan] both expressed a
desire to see each other. This was not a relationship the
defendant was in because Susan had forced him to be into it.
He wanted to be into it. He had a desire to marry her. The
only thing standing in his way was a lack of money. He
described his relationship with Susan as good. It was a little
rocky because they had financial concerns at that time. It’s
also important, and I bring up the point of Bianca Smallwood
because the defense brought her up in their first close. And
what she said is that when they were together, they appeared
fine, with the exception of this whole choking incident, with
what she describes as really a mutual combat issue, that Susan
had provoked the defendant, and he reacted. And she talks
about how the defendant cared for Schala.

¶29 Sanders also argues that the State placed his future
dangerousness at issue by emphasizing the brutality of the murder. We
disagree.

¶30 The prosecutor never suggested that based on the brutality of
the murder, Sanders posed a danger to society. Rather, in describing the
murder and Sanders’ conduct as “horrific,” “cold,” “ruthless,” “callous,”
and “mean,” the prosecutor argued for retribution, focusing the jury’s
attention on the “moral outrage” and “affront to humanity” of Sanders’

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Opinion of the Court

conduct. See Gregg v. Georgia, 428 U.S. 153, 183–84 & nn.29–30 (1976). In her
closing argument the prosecutor emphasized that Sanders deserved the
death penalty as punishment for beating Schala to death:

Now, in closing, I would like to talk to you about what you’re
being asked to do here today. In society, we often want to
believe there has to be something mentally wrong with
someone who could commit such an act of violence against
such an innocent person, a little child. Wouldn’t we want to
believe that a person must have had a horrible childhood to
cause them to commit such a terrible act? That there must
have been some event in that person’s life that led them to
brutalize a human being. But, ladies and gentlemen, as
Dr. Seward alluded to, sometimes people just do bad things. And
that’s what the evidence in this case has shown.

This defendant is a normal, intelligent person. He had a normal
upbringing. You have seen a binder full of memories from
birth into adulthood . . . .

But Schala’s death could have been prevented. All it would have
required is that he stopped. When he saw those bruises
forming on her body, that he stopped. And he chose not to.
And for that, ladies and gentlemen, he does deserve the
ultimate punishment, the death penalty. Ladies and
gentlemen, the State is asking you to impose a just sentence for
what this defendant did to Schala.

(emphasis added). See Commonwealth v. Chmiel, 889 A.2d 501, 537–38 (Pa.
2005) (finding prosecutor’s arguments focusing on the brutality of the
murders, and imposing death as retribution for the inhumanity of the
murders, as opposed to defendant’s propensity for violence, did not place
future dangerousness at issue).

¶31 In contrast, in many cases finding future dangerousness was
at issue, the prosecutor argued that the defendant’s propensity for violence
was so great that, if released from prison, he would pose a continuing threat
to society. See, e.g., Kelly, 534 U.S. at 249–50 (during his closing argument,
the prosecutor compared the defendant to a serial killer, stating that he was
dangerous and unpredictable, and referred to him as “the butcher of

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Opinion of the Court

Batesburg,” “Bloody Bill,” and “Billy the Kid,” and at the end of his
argument, remarked that “murderers will be murderers [and the
defendant] is the cold-blooded one right over there”); Simmons, 512 U.S. at
157; id. at 175–76 (O’Connor, J., concurring) (holding that future
dangerousness was at issue where the State argued that the defendant was
“a vicious predator who would pose a continuing threat to the
community,” the jury had to decide “what to do with [defendant] now that
he is in our midst,” and “[y]our verdict should be a response of society to
someone who is a threat. Your verdict will be an act of self-defense”);
Hulsey, 243 Ariz. at 395 ¶¶ 130–31 (holding the state placed the defendant’s
future dangerousness at issue when, during the penalty phase, “the
prosecutor discussed [defendant’s] proclivity throughout his life to get into
fights, stating, ‘[h]e just gets angry and wants to beat people up, whether
he is high or not,’ and, ‘[i]f you don’t agree with him, he will explode,’” he
“recounted testimony that [defendant] ‘likes to see when you put a
firecracker in a cat’s anus just so you can see the entrails flow out as the cat
dies,’” and the “prosecutor repeatedly mentioned how an expert who
contacted [defendant] was afraid of him and felt threatened,” and “elicited
testimony that when previously incarcerated, [defendant] had choked a
fellow inmate and threatened the inmate and other inmates who saw the
incident”).

¶32 Accordingly, based on the record in this case, Sanders’ future
dangerousness was not at issue, nor was it a logical inference from the
evidence. Therefore, no Simmons error occurred.

Eligibility of Juror 19

¶33 Sanders claims that he was deprived of a jury of twelve
qualified jurors because Juror 19, who was later empaneled as the presiding
juror, was a convicted felon and therefore ineligible to serve on the jury.
Juror 19 stated in his written questionnaire that he had been “convicted of
a white-collar crime” in 2004. The juror later advised the trial court during
voir dire that his civil rights had been restored. Sanders claims, however,
that this was a lie, as “proved” by the fact the juror applied to have his civil
rights restored during the trial.

¶34 Contrary to Sanders’ assertion, the alleged error does not fall
into any of the “relatively few” recognized categories of structural error.
See State v. Ring, 204 Ariz. 534, 552–53 ¶¶ 45–46 (2003). Moreover, as

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Opinion of the Court

Sanders’ counsel conceded at oral argument, a criminal defendant has no
constitutional right to a jury composed of non-felons. See Coleman v.
Calderon, 150 F.3d 1105, 1117 (9th Cir. 1998), rev’d on other grounds, 525 U.S.
141 (1998); People v. Miller, 759 N.W.2d 850, 864 (Mich. 2008).

¶35 In addition, Sanders’ reliance on State v. Anderson (Anderson
I), 197 Ariz. 314, 323–24 ¶ 22 (2000), is misplaced. In Anderson I, the trial
court removed three jurors because they expressed general reservations
about the death penalty in their written questionnaires. Id. at 318 ¶ 5. The
court denied defense counsel’s request to orally voir dire the jurors to
rehabilitate them. Id. On review, we held that denying defense counsel the
opportunity to rehabilitate the jurors was structural error. Id. at 324 ¶ 23.
In contrast, Sanders was given ample opportunity to voir dire Juror 19
about his jury eligibility but chose not to do so.

¶36 Because there is no structural error, and Sanders did not
object to the empanelment of Juror 19 at trial, we review Sanders’ claim for
fundamental error only. See State v. Valverde, 220 Ariz. 582, 585 ¶ 12 (2009).

¶37 Sanders’ assertion that Juror 19 “lied to the trial court” is not
supported by the record. Sanders’ assumption that Juror 19’s civil rights
had not been restored because he applied to have his gun rights restored
during trial is unwarranted. For first-time felony offenders, most civil
rights, including the right to serve as a juror, are automatically restored
upon: (1) discharge from probation or imprisonment, and (2) payment of
any fines or restitution. A.R.S. § 13-912(A). However, restoration of the
right to possess a weapon is not automatic; to restore this right, a person
must file an application with the court. A.R.S. § 13-912(B).

¶38 We take judicial notice of Juror 19’s superior court records
regarding his criminal case. See State v. Schackart, 190 Ariz. 238, 247 (1997)
(citing Morris K. Udall et al., Arizona Practice, Law of Evidence § 152, at 331
(3d ed. 1991) for the proposition that the “Supreme Court will take judicial
notice of its own records and decisions and those of the superior courts”).
The records show Juror 19 was discharged from probation in 2008 and that
he paid his restitution in full. Thus, by operation of law, his civil right to
serve on a jury was restored in 2008, well before Sanders’ 2014 trial. See
A.R.S. § 13-912(A). We find no error.

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Aggravating Factors

¶39 Sanders challenges each of the aggravating factors found by
the jury.

Conviction for a Serious Offense (A.R.S. § 13-751(F)(2))

¶40 Sanders argues that using his conviction for child abuse as
both the predicate felony for felony murder and as an aggravating
circumstance under A.R.S. § 13-751(F)(2) violates the Double Jeopardy
Clause. See U.S. Const. amend. V; A.R.S. § 13-751(F)(2). We have previously
rejected the argument that double jeopardy prohibits the use of predicate
felonies as “capital sentencing aggravators.” State v. Goudeau, 239 Ariz. 421,
470 ¶ 219 (2016) (citing State v. Burns, 237 Ariz. 1, 22 ¶ 86 (2015)); State v.
Cruz, 218 Ariz. 149, 169 ¶ 130 (2008).

¶41 Sanders next argues that the (F)(2) aggravator violates the
Eighth Amendment because it fails to genuinely narrow the field of death-
eligible defendants. See U.S. Const. amend. VIII. Again, we have rejected
similar challenges in recent cases, and we decline to revisit those decisions
here. See, e.g., Goudeau, 239 Ariz. at 470 ¶ 220 (stating that the (F)(2)
aggravator does not violate the Eighth Amendment); State v. Forde, 233 Ariz.
543, 569 ¶¶ 105–07 (2014) (holding that the “(F)(2) aggravator does not
violate the Eighth Amendment” because it “channels and limits the
sentencer’s discretion by explicitly identifying which offenses qualify as
‘serious offenses’”).
Especially Cruel (A.R.S. § 13-751(F)(6))

¶42 Sanders asks this Court to re-examine the issue of whether the
“especially cruel” prong of the (F)(6) aggravator is unconstitutionally
vague, both on its face and as applied. See § 13-751(F)(6). Because Sanders
is not challenging the jury’s finding that he committed Schala’s murder in
an especially heinous or depraved manner, his challenge to the (F)(6)
finding fails. See State v. Djerf, 191 Ariz. 583, 595 ¶ 44 (1998) (noting that “a
finding of either cruelty or heinousness/depravity will suffice to establish
this factor”). Nonetheless, we address Sanders’ challenge.

¶43 Here, the instructions given to the jury were not
unconstitutionally vague. Sanders’ argument was previously addressed by
this Court in State v. Anderson (Anderson II), 210 Ariz. 327, 352–53 ¶¶ 109–14,

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Opinion of the Court

supplemented, 211 Ariz. 59 (2005). In Anderson II, we found that although the
(F)(6) aggravator is vague on its face, the instructions given to the jury were
not unconstitutionally vague because they “provided a sufficiently
‘narrowed construction’ . . . to the facially vague statutory terms.” Id. at 353
¶ 114. Since Anderson II, this Court has repeatedly approved “especially
cruel” narrowing instructions requiring the jury to find the victim
consciously suffered physical or mental pain and that the defendant knew
or should have known that the victim would suffer. See State v. Tucker,
215 Ariz. 298, 310 ¶ 31 (2007) (listing Anderson II and subsequent decisions
that approved such instructions). The instructions given in this case
contained both narrowing factors.

Murder of a Child Under Fifteen (A.R.S. § 13–751(F)(9))

¶44 Sanders argues that the (F)(9) aggravator “fails to adequately
and rationally narrow those defendants subject to the death penalty” as
required by the Eighth and Fourteenth Amendments because it applies to
“[l]iterally 100 percent” of defendants over eighteen who murder someone
under fifteen. We disagree.

¶45 In State v. Nelson, we rejected the argument that the (F)(9)
aggravator is overbroad, noting, “It is difficult to imagine an aggravating
factor less susceptible than (F)(9) to a challenge on the grounds of
vagueness or overbreadth.” 229 Ariz. 180, 187 ¶ 27 (2012) (internal
quotation marks omitted) (quoting Jones v. Schriro, 450 F. Supp. 2d 1047,
1078 (D. Ariz. 2006)). We have also recognized that the legislature had a
compelling basis for creating the (F)(9) aggravator and setting the age at
fifteen. Id. at 187 ¶ 28; see also State v. Smith, 193 Ariz. 452, 462 ¶ 48 (1999)
(“[T]he legislature determined that the young and old are especially
vulnerable and should be protected. It is not irrational for the legislature to
conclude that murders of children and the elderly are more abhorrent than
other first-degree murders.”).

Time Limits on Voir Dire

¶46 Sanders argues the court violated his constitutional right to
an impartial jury by imposing a five-minute limit (per side) for individual
voir dire. Sanders claims the time limit denied him sufficient time to
conduct voir dire. Because Sanders agreed to the five-minute limit, we
review for fundamental error. State v. Gendron, 168 Ariz. 153, 154 (1991).

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Opinion of the Court

¶47 A court is permitted to “impose reasonable limitations” on
voir dire. Ariz. R. Crim. P. 18.5(d). We recently addressed such time limits
in Escalante-Orozco. 241 Ariz. at 271 ¶¶ 33–34. There, we noted that the
defendant must “demonstrate not only that the voir dire examination was
inadequate, but also that, as a result of the inadequate questioning, the jury
selected was not fair, unbiased, and impartial.” Id. at 271 ¶ 33 (internal
quotation marks omitted) (quoting State v. Moody, 208 Ariz. 424, 451 ¶ 95
(2004)).

¶48 Sanders has not shown that he was prejudiced by the time
limits. There is no indication that he was denied an opportunity to voir dire
a juror, and there is no evidence that a biased jury was ultimately
impaneled. Indeed, the record shows that when either defense counsel or
the prosecutor requested additional time to finish their voir dire, the court
granted counsel’s request each time.

Failure to Strike Jurors 10, 31, and 72

¶49 Sanders argues that the trial court abused its discretion in
denying his requests to strike Jurors 10, 31, and 72. Sanders claims these
jurors were biased because they expressed opinions favoring the death
penalty. Because none of the challenged jurors were seated on Sanders’ trial
jury, we review Sanders’ use of his peremptory strikes to remove these
jurors for harmless error. State v. Hickman, 205 Ariz. 192, 198 ¶ 28 (2003).

¶50 There was no error. Sanders used a peremptory strike on only
one of the subject jurors (Juror 31) — one juror (Juror 10) was struck for
cause, and another (Juror 72) was struck by the State. Additionally, Sanders
has failed to show that the jury ultimately empaneled was not fair and
impartial. See State v. Garza, 216 Ariz. 56, 65 ¶ 32 (2007).

Autopsy Photographs

¶51 During the sentencing phase, the State introduced eight
autopsy photographs of Schala. Sanders argues the trial court erred by

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Opinion of the Court

admitting these “gruesome” photographs of the victim. 2 Absent a clear
abuse of discretion, we defer to the trial court’s admission of graphic
photographs. State v. Doerr, 193 Ariz. 56, 65 ¶ 41 (1998). “Whether the trial
court abused its discretion in admitting a photograph turns on (1) the
photograph’s relevance, (2) its tendency to inflame the jury, and (3) its
probative value compared to its potential to cause unfair prejudice.” State
v. Cota, 229 Ariz. 136, 147 ¶ 46 (2012).

¶52 Sanders argues that the photographs had no probative value
because the fact and cause of Schala’s death were not at issue. As a result,
he contends the “shock value” of the photographs “clearly outweigh[ed]
any minimal probative value.” See State v. Chapple, 135 Ariz. 281, 288 (1983),
superseded by statute on other grounds, A.R.S. § 13-756 (“[I]f the photographs
have no tendency to prove or disprove any question which is actually
contested, they have little use or purpose except to inflame and would
usually not be admissible.”).

¶53 Here, the photographs were relevant “to show the nature and
location of the fatal injur[ies], to help determine the degree or atrociousness
of the crime, to corroborate state witnesses, to illustrate or explain
testimony, and to corroborate the state’s theory of how and why the
homicide was committed.” State v. Morris, 215 Ariz. 324, 339 ¶ 70 (2007)
(quoting Chapple, 135 Ariz. at 288); see also Anderson II, 210 Ariz. at 340 ¶ 40
(stating the autopsy photographs were relevant to show the “fact and cause
of death”). Dr. Horn, the medical examiner, used all the photographs
(except Exhibit 53) to explain his testimony concerning the injuries he saw
while performing Schala’s autopsy. Dr. Horn’s testimony regarding the
cause of Schala’s death —“multiple blunt force injuries”—was based, in
part, on these photographs. The State also used Exhibit 53 during Nurse
Jack’s testimony. This photograph supported her testimony that she saw
bruises on “[a]lmost every single part of [Schala’s] body.”

¶54 The photographs were also relevant to rebut Sanders’ claim
that because he only spanked Schala with a belt, it was unforeseeable that
his actions would cause her death. See supra ¶¶ 8–10; see also State v.
Villalobos, 225 Ariz. 74, 80 ¶ 22 (2010) (finding autopsy photographs

2 The State sought to introduce a total of eleven photographs. However,
three of these photographs, exhibits 40, 51, and 80, were never admitted into
evidence.
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Opinion of the Court

depicting various internal injuries were relevant to rebut defendant’s
argument that victim seemed fine after the beating and his suggestion that
she died because of lack of prompt medical attention). The probative value
of the photographs was not substantially outweighed by the danger of
unfair prejudice. See Ariz. R. Evid. 403. While graphic and disturbing, the
photographs were not so unduly gruesome as to be inadmissible. Cf.
Villalobos, 225 Ariz. at 80 ¶ 23 (finding autopsy photographs depicting
internal injuries of child beaten to death admissible). Nor were the
photographs cumulative.

¶55 Dr. Horn and Nurse Jack used each of the photographs to
explain different parts of their testimony. Cf. Escalante-Orozco, 241 Ariz. at
279 ¶ 85 (“The autopsy photographs were not cumulative because the
medical examiner used each one to explain a different aspect of his
testimony.”).
Apology Letters

¶56 Sanders argues the trial court violated his right to a fair trial
by precluding two “apology letters” he wrote during his police interview.

¶57 The court did, in fact, admit the letters. The court initially
ruled they were inadmissible as hearsay. However, during the guilt phase
and before the State rested its case-in-chief, the court reversed its ruling.
The court determined the letters were admissible because the State had
elicited testimony tending to show that Sanders was cold and emotionless
during his police interview. The court concluded that the apology letters
were admissible to complete the story and avoid potentially misleading the
jury about Sanders’ demeanor during his interview.

¶58 Sanders also complains that because the court did not admit
the letters until the last day of the State’s case-in-chief, its ruling came too
late. Specifically, Sanders claims he was denied the opportunity to use the
letters during his opening statement and cross-examination of the State’s
witnesses. We review a trial court’s ruling on the admissibility of evidence
for an abuse of discretion. State v. Boggs, 218 Ariz. 325, 334 ¶ 38 (2008).

¶59 There is no error. The trial court correctly ruled initially that
the apology letters were hearsay. See Ariz. R. Evid. 106, 801–04. In addition,
the apology letters had minimal probative value as to Sanders’ guilt and
were not relevant to show Sanders’ mental state during the commission of

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the crime. Cf. State v. Prince, 226 Ariz. 516, 543 ¶ 121 (2011) (stating a
defendant’s expression of remorse is a non-statutory mitigating factor);
State v. Sansing, 206 Ariz. 232, 241 ¶ 35 (2003) (same).

¶60 Sanders suffered no prejudice from the subsequent admission
of the letters. Nothing prevented Sanders from recalling the State’s
witnesses and confronting them with the apology letters. Indeed, Sanders
confronted Detective Kaminsky with the letters during his cross-
examination, and he used the apology letters during his closing argument
in the guilt phase. Finally, Sanders used the apology letters as mitigation
evidence (remorse) during the penalty phase.

Testimony Regarding “Worst Case of Child Abuse”

¶61 Sanders claims that the trial court violated his due process
right to a fair trial by denying his motion for a mistrial after multiple State
witnesses testified that this was “the worst case of child abuse” they had
ever seen. Denial of a mistrial motion is reviewed for an abuse of discretion.
State v. Miller, 234 Ariz. 31, 40 ¶ 23 (2013).

¶62 During the guilt phase, the prosecutor asked several
witnesses, “Do you have an independent recollection of this case?” In
response to this question, one officer testified that he could “recall the
scene” “very vividly” because he “had small children at the same time that
were very close in age, and it was something that — it affected me.”
Another witness, an emergency room physician, responded that he
remembered this case because “it’s a very uncommon case. The age of the
patient, uh, is something that unquestionably will stick with you.”
Nurse Jack responded to the prosecutor’s question by stating that she had
“seen a lot of horrible things” as a trauma nurse, but she had “never seen
anything like this.” She also testified that she kept “a picture of Schala” at
her house “because it was something I will never forget.” Finally, Dr. Horn
responded by stating that “[t]his is one of the — one of the worst child
homicide cases I’ve ever dealt with in terms of the number, extent of
injuries. That was impressive, even for the people in my office, and
myself.”

¶63 Following Dr. Horn’s testimony, Sanders moved for a
mistrial. The court denied the motion and ruled that the State could
continue asking its witnesses if they had an independent recollection of the

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Opinion of the Court

case. However, the court ordered the State to instruct its future witnesses
not to use the words “worst case” in explaining why they had an
independent recollection. Additionally, at Sanders’ request, the court gave
the following curative instruction to the jury:

You have heard some witnesses refer to this case as the worst
case of child abuse they have seen. This evidence is admitted
only for the limited purpose of assessing each witness’[s]
credibility and ability to recall the events. You must consider
it only for that limited purpose and not for any other purpose.
It is your duty to decide the facts based on the evidence
produced in court, and you must not be influenced by
sympathy or prejudice.

¶64 We reject Sanders’ argument. The prosecutor’s question
about the witnesses’ independent recollections was relevant to establishing
their credibility and ability to accurately recall the events. Additionally,
any prejudice Sanders may have suffered from the witnesses’ “worst case”
comments was remedied by the court’s curative instruction. See Villalobos,
225 Ariz. at 80 ¶ 20.
Jury Instructions

¶65 Sanders argues that the “voluntary act” instruction given to
the jury was improper. We disagree. As a preliminary matter, Sanders
requested this instruction. He therefore invited any error. See State v. Logan,
200 Ariz. 564, 565 ¶ 8 (2001). Additionally, we have previously held that a
similar voluntary act instruction was proper. State v. Lara, 183 Ariz. 233,
234–35 (1995).

¶66 Next, Sanders claims the trial court’s instruction on felony
murder improperly relieved the State of its burden to prove criminal intent.
Again, we disagree. Felony murder “requires no specific mental state other
than what is required for the commission of any of the enumerated
[predicate] felonies.” A.R.S. § 13-1105(B). Here, the predicate felony, child
abuse, required the State to prove that Sanders intentionally or knowingly
caused Schala to suffer physical injury. A.R.S. § 13-3623(A)(1) (child abuse);
State v. Payne, 233 Ariz. 484, 506 ¶ 71 (2013). Thus, the trial court properly
instructed the jury that the only intent the State had to prove for felony
murder was that Sanders intentionally or knowingly hit Schala with a belt

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Opinion of the Court

and that action resulted in Schala’s death. See A.R.S. § 13-3623(A)(1); Payne,
233 Ariz. at 506 ¶ 71; see also A.R.S. § 13-1105(A).

Sufficiency of the Evidence — Count III (Child Abuse)

¶67 Sanders argues that the trial court erred by denying his
motion for judgment of acquittal on Count III, Child Abuse, after the close
of the State’s evidence. We review the trial court’s ruling de novo. Goudeau,
239 Ariz. at 461 ¶ 168.

¶68 Count III was based on the injuries Sanders inflicted on Schala
before her fatal beating — specifically, the injuries she suffered between
June 1, 2009, and August 29, 2009. To convict Sanders of this charge, the
State had to prove that (1) “[u]nder circumstances other than those likely to
produce death or serious physical injury,” (2) Sanders “intentionally or
knowingly” (3) caused Schala to suffer a physical injury. A.R.S.
§ 13-3623(B)(1).

¶69 Substantial evidence supports Sanders’ conviction. Dr. Horn
testified that several of Schala’s wounds consisted of a “fresh injury
possibly over an older injury,” and that it was possible older bruises on
Schala’s extremities were covered by more recent bruises. See supra ¶ 11.
In addition, Sanders admitted to police that during the period from late
May or early June 2009 until Schala’s death, he had routinely beat her with
a belt “once or twice a week.” See supra ¶¶ 5–7.

Duplicitous Charge

¶70 Sanders also claims that Count III was duplicitous because it
alleged, in one count, multiple acts of child abuse occurring over a period
of three months. Sanders argues he was denied adequate notice as to which
specific act during this time was the basis for the charge. He also claims the
charge was duplicitous because it created the risk of a non-unanimous jury
verdict. Although Sanders did not raise this issue until his reply brief, we
address it because both Sanders and the State addressed the issue during
Sanders’ Rule 20 motion in the trial court. The State also addressed the
issue in its answering brief.

¶71 The indictment clearly informed Sanders that Count III was
based on his ongoing course of conduct. The evidence showed that Sanders

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Opinion of the Court

beat Schala from the time she returned to Arizona in late May or early June
until the day of her death on August 31, 2009. See supra ¶¶ 4–11. We have
held that “where numerous transactions are merely parts of a larger
scheme, a single count encompassing the entire scheme is proper.” State v.
Via, 146 Ariz. 108, 116 (1985); see also State v. Klokic, 219 Ariz. 241, 245 ¶ 18
(App. 2008) (“[M]ultiple acts may be considered part of the same criminal
transaction when the defendant offers essentially the same defense to each
of the acts and there is no reasonable basis for the jury to distinguish
between them.” (internal quotation marks omitted)).

¶72 In addition, although Sanders hit Schala with a belt on
numerous occasions during this time period, there was no reasonable basis
for the jury to distinguish between these beatings preceding her fatal
beating. Indeed, Sanders has not articulated how his defense would have
changed had the State focused on one incident. See State v. Ramsey, 211 Ariz.
529, 533 ¶ 7 (App. 2005) (“Although, under some circumstances, an
indictment's lack of specificity might hamper a defendant’s ability to rebut
or defend against the charges, Ramsey has not shown how his defense was
impaired or prejudiced by the indictment against him.”); see also State v.
Whitney, 159 Ariz. 476, 480 (1989) (finding no prejudice because defendant’s
only defense was that the offenses did not occur and the victims fabricated
their stories). Sanders’ defense was the same as to all the beatings — he was
just “spanking” Schala and was not aware he was endangering her life.

Mitigation Standard

¶73 Sanders argues the prosecutor violated his due process rights
by misstating the law on mitigation during her penalty phase closing
argument. Because Sanders did not object, we review for fundamental
error only. State v. Martinez, 218 Ariz. 421, 426 ¶ 15 (2008).

¶74 Sanders contends that the prosecutor erroneously told the
jurors that in determining whether mitigation evidence was sufficiently
substantial to call for leniency, they must consider the mitigation evidence
“in its totality.” Sanders claims this misstated the law because a single
proven mitigating factor “can carry the day”; as a result, there is no
statutory requirement for the jury to consider mitigation in its totality. See
A.R.S. § 13-751(E).

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Opinion of the Court

¶75 The prosecutor’s argument was based on the court’s
instruction. The court instructed the jurors that in determining whether
mitigation warrants leniency, “you must decide how compelling or
persuasive the totality of the mitigating factors is when compared against
the totality of the aggravating factors . . . .” Rev. Ariz. Jury Instr. (“RAJI”)
Stand. Crim. 3, Cap. Case 2.6. This is a correct statement of the law. State
v. Gunches (Gunches II), 240 Ariz. 198, 206 ¶ 37 (2016); State v. Carlson, 237
Ariz. 381, 396 ¶¶ 51, 54 (2015). Based on the instruction, the prosecutor
properly argued that the jurors were to consider mitigation “in its totality,”
thereby urging them to consider all mitigating factors and all aggravating
factors in making their decision. See Carlson, 237 Ariz. at 396 ¶ 54 & n.6.

¶76 Next, Sanders argues the prosecutor improperly told the jury
that forgiveness is “not your job.” Sanders claims that “forgiveness” is
synonymous with leniency and is therefore properly considered by the jury.

¶77 A capital defendant is free to argue that mercy or leniency is
appropriate based on the mitigation evidence. State v. Andriano, 215 Ariz.
497, 507 ¶ 48 (2007), abrogated on other grounds by State v. Ferrero, 229 Ariz.
239 (2012). However, any such argument invites a rebuttal by the State. See
State v. Trostle, 191 Ariz. 4, 16 (1997) (“Comments that are invited and
prompted by opposing counsel’s arguments are not improper if they are
reasonable and pertinent to the issues raised.”).

¶78 Sanders takes the prosecutor’s comments out of context. She
never argued the jury could not consider leniency. Rather, the prosecutor
simply argued that leniency “is not a question of forgiveness.” She stated
that the law and the instructions required them “to determine whether or
not there are mitigating factors that are sufficiently substantial to call for
leniency.” See A.R.S. § 13-751(E).

¶79 Sanders contends that the prosecutor also erred when she told
the jurors, “If you find that there are no mitigating factors, you shall impose
death. That is what the law requires.” Sanders asserts the prosecutor’s
statement was erroneous because “the law never requires a death
sentence.”

¶80 The prosecutor did not misstate the law. Pursuant to A.R.S.
§ 13-751(E), “[t]he trier of fact shall impose a sentence of death if [it] finds one
or more of the aggravating circumstances . . . and then determines that there

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Opinion of the Court

are no mitigating circumstances sufficiently substantial to call for leniency.”
(emphasis added); see also Tucker, 215 Ariz. at 317–18 ¶ 74 (stating that
A.R.S. § 13-751(E) “allows a juror to vote to impose death only if he or she
concludes that there is no mitigation sufficiently substantial to warrant
leniency,” which “does not imply . . . that a juror may vote for leniency even
if he or she finds there is no mitigation”). Thus, “a juror must vote to
impose a sentence of death if he or she determines there is no mitigation at
all.” Id.

¶81 Sanders claims the State also “misstated the law regarding
hearsay in mitigation presentations” when the prosecutor stated regarding
hearsay, “We have to accept what that person reports another person said.
You should take that into consideration when determining whether or not
to accept or reject that testimony.”

¶82 The prosecutor did not argue that hearsay was inadmissible.
See A.R.S. § 13-751(C) (stating that mitigation evidence is admissible during
a capital sentencing phase “regardless of its admissibility under the rules
governing admission of evidence at criminal trials”). Rather, the prosecutor
properly argued that it was up to the jury to determine whether hearsay
testimony is credible. See Boggs, 218 Ariz. at 335 ¶ 39 (“Determining
veracity and credibility lies within the province of the jury . . . .”).

Nexus

¶83 Sanders argues that it was improper for the prosecutor to
argue that “Dr. Seward said there was no [PTSD] trigger identified. He
found that there was no nexus to the murder.” Sanders claims this
argument improperly suggested that he was required to prove a causal
nexus between his proffered mitigation (PTSD) and the murder. See State
v. Newell, 212 Ariz. 389, 405 ¶ 82 (2006) (“We do not require that a nexus
between the mitigating factors and the crime be established before we
consider the mitigation evidence.” (citing Tennard v. Dretke, 542 U.S. 274,
287 (2004))).

¶84 Sanders mischaracterizes the prosecutor’s statement. The
State never suggested that, absent a nexus between Sanders’ PTSD and
Schala’s murder, the jury could not consider his PTSD as mitigation.
Instead, the prosecutor specifically stated that in determining how much
“value to assess” mitigation, “it is important to remember that this evidence

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Opinion of the Court

doesn’t have to be connected specifically to the murder. But you may
consider whether or not it is connected to the murder in determining how
much weight to give that evidence.”

¶85 The prosecutor’s argument regarding Dr. Seward’s testimony
properly addressed the weight the jury should ascribe to his testimony. See
Villalobos, 225 Ariz. at 83 ¶¶ 38–39 (“[T]he state may fairly argue that the
lack of a nexus to the crime diminishes the weight to be given alleged
mitigation,” and “[t]he jury may thus appropriately consider a lack of
causal nexus when ‘assessing the quality and strength of mitigation.’”
(quoting Newell, 212 Ariz. at 405 ¶ 82)); Anderson II, 210 Ariz. at 350 ¶ 97
(“Once the jury has heard all of the defendant’s mitigation evidence, there
is no constitutional prohibition against the State arguing that the evidence
is not particularly relevant or that it is entitled to little weight.”).

¶86 Furthermore, any potential error was remedied by the jury
instructions, which informed the jurors: “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. Any connection or
lack of connection may impact the quality and strength of the mitigation
evidence.” See State v. Pandeli, 215 Ariz. 514, 526 ¶ 33 (2007) (finding any
potential error cured when the jury instructions informed the jurors that
they should consider and give effect to all the mitigation evidence).

Mitigation as an Excuse or Justification

¶87 Sanders claims the prosecutor misstated the law by stating
that mitigation is not an excuse or justification for Schala’s murder.

¶88 There was no error. The prosecutor restated the applicable
jury instruction, which was an accurate statement of the law. See RAJI
Stand. Crim. 3, Cap. Case 2.3; Prince, 226 Ariz. at 538 ¶ 89. Indeed, it would
have been improper for the prosecutor to suggest otherwise, because
equating Sanders’ mitigation with an “excuse” or “justification” for Schala’s
murder may have improperly implied that Sanders was required to
establish a nexus between the murder and his mitigation evidence. See, e.g.,
Prince, 226 Ariz. at 538 ¶¶ 88–89.

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Opinion of the Court

Admission of Susan’s Statements

¶89 Sanders argues the trial court violated his right to a fair trial
and his Sixth Amendment right to confront witnesses by admitting Susan’s
interview with police at the hospital, her statements to the police during her
car ride to the police station, and the video and audio of her interrogation
at the police station. See Crawford v. Washington, 541 U.S. 36, 50–52 (2004).
We review alleged constitutional violations de novo. Boggs, 218 Ariz. at 333
¶ 25.

¶90 We reject Sanders’ claim. This evidence was admitted as
rebuttal evidence during the penalty phase, and thus was not subject to the
Confrontation Clause. See State v. Guarino, 238 Ariz. 437, 442–43 ¶ 24 (2015).

Cumulative Prosecutorial Misconduct

¶91 Sanders alleges that several instances of prosecutorial
misconduct occurred throughout the trial. He claims the cumulative effect
of this misconduct requires this Court to set aside the verdict. Because
Sanders did not preserve this objection at trial, we review for fundamental
error only. State v. Rutledge, 205 Ariz. 7, 13 ¶ 30 (2003).

¶92 “To prevail on a claim of prosecutorial misconduct, a
defendant must demonstrate that the prosecutor’s misconduct ‘so infected
the trial with unfairness as to make the resulting conviction a denial of due
process.’” State v. Hughes, 193 Ariz. 72, 79 ¶ 26 (1998) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974)).

Showing post-mortem photographs

¶93 As discussed supra ¶¶ 53–56, the trial court did not err in
admitting a limited number of autopsy photographs of Schala; therefore,
the prosecutor did not commit misconduct by showing these photographs
to the jury. See Burns, 237 Ariz. at 31 ¶ 149.

Apology Letters

¶94 Similarly, as discussed supra ¶ 60, the trial court did not err in
ruling initially that the apology letters were inadmissible during the guilt

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Opinion of the Court

phase. As a result, the prosecutor did not commit misconduct by seeking
to preclude these letters.

Characterizing Sanders as Stoic and Unemotional

¶95 It was not improper for the prosecutor to elicit testimony that
Sanders was stoic and unemotional during his police interview. A
prosecutor may properly question witnesses about their observations of the
defendant’s demeanor during relevant events in a case. See State v. Mauro,
159 Ariz. 186, 198 (1988) (“The subject of the prosecutor's inquiry was
defendant’s demeanor . . . . Such an inquiry is a permissible one.”).

Eliciting “worst case” testimony

¶96 Sanders argues that “the prosecutor committed pervasive
misconduct” by intentionally eliciting a “large number” of “worst case”
remarks from witnesses. As discussed supra ¶ 64, it was not improper for
the prosecutor to question the witnesses about their independent
recollection of the case. In addition, the court provided a curative
instruction to remedy any prejudice.

“Misstating” mitigation standard

¶97 Sanders alleges that during closing argument the prosecutor
made numerous misstatements regarding the law on mitigation. Because
the prosecutor did not misstate the law, there was no misconduct. See supra
¶¶ 73–80.

Disparaging defense counsel

¶98 During the guilt phase closing argument, the prosecutor
remarked, “It’s offensive that the defense stands before you and tells you
that what [Sanders] did to Schala is discipline.” Sanders did not object to
the statement. In referring to this remark, the court warned the prosecutor
(outside the presence of the jury) to “stay away from the disparaging [of
defense counsel] in any way.” The prosecutor made no further comments
about defense counsel.

¶99 It is improper for a prosecutor to impugn the integrity of
defense counsel. Hughes, 193 Ariz. at 86 ¶ 59. However, there is no

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Opinion of the Court

reasonable likelihood that this isolated statement affected the jury’s verdict.
Furthermore, any prejudice was cured by the court instructing the jury that
what the lawyers say in closing arguments is not evidence. See Prince,
226 Ariz. at 538 ¶ 90.

Raising the Rape Allegation

¶100 Sanders argues that the prosecutor’s “unfounded allegation
that [Sanders] had committed a rape while he was in the military”
amounted to prosecutorial misconduct. See supra ¶ 24. Sanders asserts the
State had no “good faith” evidentiary basis to ask this question.
Additionally, Sanders claims this evidence was not admissible under
Arizona Rules of Evidence 404(b) and 403, and that its admission violated
his rights under the Sixth and Fourteenth Amendments.

¶101 We note that Rule 404(b) does not apply during the penalty
phase of a capital case. See A.R.S. § 13-751(C); see also State v. Chappell, 225
Ariz. 229, 239 ¶ 37 (2010); Martinez, 218 Ariz. at 431 ¶ 44 n.11. In addition,
the record shows that Sanders had been investigated for rape in the
military, and therefore the prosecutor did not misrepresent this fact or
mislead the jury. Cf. Miller v. Pate, 386 U.S. 1, 6 (1967); Hughes, 193 Ariz. at
86 ¶ 61. Sanders disclosed the investigation to Detective Kaminsky, and a
mitigation witness also disclosed the investigation to the State. In addition,
Detective Kaminsky contacted a Naval Criminal Investigative Service
special agent to confirm that Sanders was in fact investigated for rape.

Arguing with mitigation witness

¶102 Sanders also claims that the State committed prosecutorial
misconduct by “open[ly] arguing” with a mitigation witness during cross-
examination. The record shows that the witness was irritated by what he
perceived to be the prosecutor’s disrespect for his military service. Thus,
the witness refused to answer the prosecutor’s questions about his military
service. Based on our review of the record, we conclude the prosecutor did
not engage in any misconduct with this witness.

Cumulative Misconduct

¶103 Sanders has failed to show that any misconduct “permeate[d]
the entire atmosphere of the trial.” Hughes, 193 Ariz. at 79 ¶ 26 (quoting

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Opinion of the Court

State v. Atwood, 171 Ariz. 576, 611 (1992)). Furthermore, he has not shown
that the claimed misconduct amounted to fundamental, prejudicial error.
Accordingly, we reject his claim of cumulative prosecutorial misconduct.

Other Constitutional Claims

¶104 Sanders lists twenty-six additional constitutional claims to
preserve them for federal review. Sanders acknowledges that we have
previously rejected all these claims. We decline to revisit them.

Death Sentence

¶105 Sanders contends that we should reduce his death sentence to
life because his mitigation was substantial and not rebutted by the State.
“We must uphold a jury’s determination that death is the appropriate
sentence if any ‘reasonable juror could conclude that the mitigation
presented was not sufficiently substantial to call for leniency.’” State v.
Naranjo, 234 Ariz. 233, 250 ¶ 89 (2014) (quoting State v. Gallardo, 225 Ariz.
560, 570 ¶ 52 (2010)).

¶106 Sanders has the burden of proving the existence of mitigating
circumstances by a preponderance of the evidence. A.R.S. § 13-751(C);
Tucker, 215 Ariz. at 321–22 ¶ 106. But the jurors do not have to agree that a
certain mitigating circumstance has been proven; rather, each juror may
consider any mitigating circumstance in determining the appropriate
sentence. See A.R.S. § 13-751(C).

¶107 Here, Sanders proffered the following statutory mitigating
circumstances: (1) he suffered from PTSD, which impacted his ability to
appreciate the wrongfulness of his conduct, see A.R.S. § 13-751(G)(1); (2) he
could not have reasonably foreseen that his actions would cause or create a
grave risk of death because what he perceived as similar abuse/discipline
that he suffered as a child did not cause his death, see A.R.S. § 13-751(G)(4);
and (3) his age and emotional immaturity, A.R.S. § 13-751(G)(5). He also
proffered the following non-statutory mitigating factors: (4) he had no
positive male role model to teach him how to be a proper caregiver;
(5) physical and emotional abuse by his mother; (6) his mother is
“emotionally bankrupt” and never wanted children; (7) he was a good
student and had appropriate relationships with peers; (8) he served his
country as a Marine and saw combat despite only being trained as a cook;

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 STATE V. SANDERS
Opinion of the Court

(9) he had no money or direction in life after the Marines, and Susan was a
negative influence; (10) he used the same punishment on Schala that was
inflicted on him as a child; and (11) remorsefulness and cooperation with
police.

¶108 The State challenged the alleged mitigation with rebuttal
testimony or argument, and also argued that the mitigating factors, if
proven, should be given little weight. Even if we assume Sanders proved
each mitigating circumstance, a reasonable juror could conclude they were
not sufficiently substantial to call for leniency, and thus the jury did not
abuse its discretion.

III.

¶109 We affirm Sanders’ convictions and sentences.

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