State of Arizona v. Alan Matthew Champagne

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA,
Appellee,

v.

ALAN MATTHEW CHAMPAGNE,
Appellant.

No. CR-17-0425-AP
Filed August 7, 2019

Appeal from the Superior Court in Maricopa County
The Honorable Pamela S. Gates, Judge
No. CR2013-000177-002
AFFIRMED

COUNSEL:

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

Garrett W. Simpson (argued), Garrett Simpson PLLC, Glendale, Attorney
for Alan Matthew Champagne
 STATE V. CHAMPAGNE
Opinion of the Court

JUSTICE BOLICK authored the opinion of the Court, in which CHIEF
JUSTICE BALES (RETIRED), VICE CHIEF JUSTICE BRUTINEL, and
JUSTICES TIMMER, GOULD, LOPEZ, and PELANDER (RETIRED) joined.

JUSTICE BOLICK, opinion of the Court:

¶1 Alan Matthew Champagne was convicted of the first-degree
murder of Brandi Hoffner, the second-degree murder of Philmon Tapaha,
kidnapping Hoffner, and two counts of abandonment or concealment of a
dead body. He was sentenced to death for the first-degree murder. We
have jurisdiction over this direct appeal under article 6, section 5(3) of the
Arizona Constitution and A.R.S. § 13-4031. For the following reasons, we
affirm Champagne’s convictions and sentences.

BACKGROUND

¶2 On June 23, 2011, Champagne and three friends drank alcohol
and used methamphetamine at his apartment. 1 One friend, Elise Garcia,
spent the night. Early the next morning, she was in the bathroom when two
people entered the apartment with Champagne. As she walked into the
living room, Garcia heard a gunshot and then saw Tapaha on the couch
with a bullet wound to his head, blood on the walls and the couch, and
Champagne standing next to him holding a gun. Tapaha’s girlfriend,
Hoffner, cried at the sight of her dead boyfriend, saying, “I loved him.”

¶3 Champagne attempted to calm Hoffner and asked if she
wanted to get high. Hoffner nodded affirmatively, and he led her into the
bedroom and gave her a bong and methamphetamine for her to smoke.
Garcia followed them into the bedroom and sat in the doorway.
Champagne left the room briefly, placing a gun in Garcia’s lap before he
exited the room. Garcia testified that when she locked eyes with Hoffner,
Hoffner understood she would not be allowed to leave. When Champagne

1 “We view the facts in the light most favorable to sustaining the jury’s
verdict.” State v. Rushing, 243 Ariz. 212, 216 n.2 (2017) (citing State v.
Gallegos, 178 Ariz. 1, 9 (1994)).
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Opinion of the Court

returned, he came behind Hoffner as she was smoking and slipped an
electrical cord fashioned into a noose around her neck. Hoffner struggled,
clawing with both hands at the cord trying to breathe as Champagne used
a wrench to tighten the cord with each turn. Garcia recalled Hoffner’s face
turning purple as Champagne strangled her to death.

¶4 After Champagne killed Hoffner, he kept the bodies in his
apartment for approximately one week. Eventually, Champagne placed
the decomposing bodies into a large wooden box, which he buried in his
mother’s backyard. About twenty months later, a landscaper discovered
the box containing the bodies.

¶5 The State charged Champagne with two counts of first-degree
murder for the killings of Tapaha and Hoffner, one count of kidnapping
Hoffner, and two counts of abandonment or concealment of the bodies. The
jury found Champagne guilty on all charges, except that it found him guilty
of second-degree murder for the killing of Tapaha. The jury found three
aggravating circumstances: (1) Champagne had been previously convicted
of a serious offense, A.R.S. § 13-751(F)(2); (2) he murdered Hoffner in an
especially cruel manner, § 13-751(F)(6); and (3) he was convicted of multiple
homicides during the commission of the offense, § 13-751(F)(8). The jury
found that the proffered mitigation was not sufficiently substantial to call
for leniency and Champagne was sentenced to death for Hoffner’s murder.
This automatic appeal followed.

DISCUSSION

A. Request for Change of Counsel

¶6 Champagne contends that the trial court erred in summarily
dismissing his request to change counsel and failing to adequately inquire
into whether a true conflict existed, thus violating his constitutional right to
conflict-free counsel. We review a trial court’s decision to deny a request
for new counsel for abuse of discretion. State v. Cromwell, 211 Ariz. 181, 186
¶ 27 (2005).

¶7 Before trial, Champagne filed a pro per motion to change
counsel, which the trial court described as a “[bare] bones hand-written
motion” that cited “no particular reason” why counsel should have been
changed. Defense counsel maintained that Champagne had a “good faith

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Opinion of the Court

basis to ask for new counsel” and informed the court that there was a bona
fide conflict of interest because Champagne said he was filing a complaint
against her with the State Bar of Arizona. Because of that conflict, counsel
asserted that she and her co-counsel needed to be “removed from
representing Mr. Champagne any further.” The trial court denied counsel’s
oral motion to remove capital counsel, who had been working on the case
for eighteen months, and instructed counsel to file a motion if she believed
it was appropriate for Champagne to obtain new counsel. She did not do
so.

¶8 Three-and-one-half months later, Champagne wrote a letter
to the court, repeating his request for new counsel and alleging his current
counsel had fallen asleep during his recent, unrelated trial, which resulted
in over a 700-year sentence. But after the court reviewed his letter,
Champagne informed the court that he wanted his attorney to visit him in
jail to explore whether they could “reach some type of an understanding or
working relationship.” Despite a productive jail visit, Champagne
indicated to the court that he still wanted to change his counsel.

¶9 The court treated Champagne’s letter as a motion to change
counsel and addressed it at a hearing. The prosecutor noted that a delay in
trial due to change in counsel would impact witness availability and the
victims’ rights to a speedy trial. The court then conducted an ex parte
hearing in the presence of only Champagne and his attorney on the
purported conflict. Champagne told the court he wanted to change counsel
because his lawyer fell asleep during his previous trial—which, according
to Champagne, alone constituted adequate grounds to change counsel—
and that she was not visiting him or discussing the current case with him.

¶10 In response, Champagne’s counsel explained that
Champagne was extremely unhappy about the outcome of his prior trial,
that he became hostile and uncooperative, and that he refused visits from
counsel’s mitigation specialist. She detailed the extensive amount of time
and work that she spent preparing for this case. Moreover, she told the
court she was willing to assist Champagne in accurately and adequately
preserving a record of the allegations surrounding her perceived behavior
during his prior trial. Ultimately, Champagne’s counsel asserted that a
change of counsel was not in Champagne’s best interests and that she did
not believe the relationship was irretrievably broken but that they could

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Opinion of the Court

work together and proceed to trial. The trial court denied Champagne’s
request for new counsel.

¶11 The trial court did not abuse its discretion. Champagne
argues that the Court should “presume the prejudice because there was a
showing of actual conflict of interest.” He relies considerably on counsel’s
initial statement that he had a good-faith basis for requesting a change of
counsel, maintaining that the court’s denial of his request resulted in
structural error tainting his entire trial. But that statement came shortly
after Champagne informed his attorney that he intended to pursue a bar
complaint against her. And Champagne ignores counsel’s subsequent
statements that the relationship was not irretrievably broken, that a change
of counsel was not in his best interests, that she was dedicated to his current
case, and that she was willing to help him establish a record of his
allegations relating to her perceived behavior in his prior trial.

¶12 Although the Sixth Amendment guarantees an accused the
right to counsel, a “defendant is not, however, entitled to counsel of choice
or to a meaningful relationship with his or her attorney.” Cromwell, 211
Ariz. at 186 ¶ 28. A defendant is deprived of his constitutional right to
counsel “if either an irreconcilable conflict or a completely fractured
relationship between counsel and the accused exists.” State v. Hernandez,
232 Ariz. 313, 318 ¶ 12 (2013) (internal quotation marks omitted). Such a
“deprivation of a defendant’s Sixth Amendment right to counsel infect[s]
the entire trial process,” requiring automatic reversal. State v. Moody
(Moody I), 192 Ariz. 505, 509 ¶ 23 (1998) (alteration in original) (internal
quotation marks omitted). A “[c]onflict that is less than irreconcilable,
however, is only one factor for a court to consider in deciding whether to
appoint substitute counsel.” Cromwell, 211 Ariz. at 186 ¶ 29.

¶13 Trial courts have a duty to inquire into the basis of a
defendant’s request for change of counsel. State v. Torres, 208 Ariz. 340, 343
¶ 7 (2004). But the nature of that inquiry depends on the nature of the
defendant’s request. Id. ¶ 8. On the one hand, if the defendant sets forth
“sufficiently specific, factually based allegations in support of his request
for new counsel, the . . . court must conduct a hearing into his complaint.”
Id. (alteration in original) (internal quotation marks omitted). On the other
hand, “generalized complaints about differences in strategy may not
require a formal hearing or an evidentiary proceeding.” Id. A trial court’s
failure to conduct an inquiry into a purported conflict can, under certain
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Opinion of the Court

circumstances, serve as a basis for reversing a defendant’s conviction. See
Holloway v. Arkansas, 435 U.S. 475, 487–91 (1978).

¶14 Trial courts should examine requests for new counsel “with
the rights and interest of the defendant in mind tempered by exigencies of
judicial economy.” State v. LaGrand, 152 Ariz. 483, 486 (1987). This Court
has identified several factors—known as the LaGrand factors—for trial
courts to consider when ruling on motions for change of counsel:

whether an irreconcilable conflict exists between counsel and
the accused, and whether new counsel would be confronted
with the same conflict; the timing of the motion;
inconvenience to witnesses; the time period already elapsed
between the alleged offense and trial; the proclivity of the
defendant to change counsel; and quality of counsel.

Id. at 486–87. Here, “[a]lthough the trial court could have engaged in a more
searching exploration” of the responses from Champagne’s attorney as to
the truthfulness behind his claim that she fell asleep during his prior trial
and the repercussions of that alleged behavior on their attorney-client
relationship, see Hernandez, 232 Ariz. at 318–19 ¶ 16, the court did not abuse
its discretion because it sufficiently inquired into the purported conflict and
considered the LaGrand factors.

¶15 First, the court determined that there was no irreconcilable
breakdown in communication between Champagne and his counsel.
Champagne had the burden of proving “either a complete breakdown in
communication or an irreconcilable conflict,” and, to satisfy that burden, he
needed to “present evidence of a severe and pervasive conflict with his
attorney or evidence that he had such minimal contact with the attorney
that meaningful communication was not possible.” Hernandez, 232 Ariz.
at 318 ¶ 15 (internal quotation marks omitted). The court concluded that
the circumstances did not amount to an irreconcilable breakdown in
communication, that Champagne was able to communicate with his
lawyer, and that he was receiving effective representation. And while the
court noted that Champagne may understandably be upset and have “some
trust issues” if counsel truly fell asleep during a brief period of his prior
trial, “[a] mere allegation of lost confidence in counsel does not require
appointing substitute counsel.” State v. Bible, 175 Ariz. 549, 591 (1993).

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Opinion of the Court

¶16 Second, the court noted that new counsel would likely be
confronted with the same conflict. Other than the allegation that counsel
slept during part of his previous trial, Champagne’s main concern was that
his attorney was not adequately communicating with him. However,
counsel told the court that she had visited Champagne multiple times in
jail, as had her mitigation specialist, but that he sometimes refused visits.
Additionally, counsel said that her challenging trial schedule had made it
difficult to see Champagne for a few months, but that she was nonetheless
preparing for his trial and ready to move forward. Based on that
information, the court found that a change in counsel would likely result in
the same purported conflict because new counsel might also be unable to
visit and confer with Champagne as often as he would like, making it
conceivable that the court could find itself in the same circumstance with a
change of counsel.

¶17 Third, the court found that granting Champagne’s request
would delay trial, which could ultimately inconvenience witnesses. The
prosecutor explained how a change of counsel would delay trial and make
it difficult for the State to get certain witnesses to court. See Cromwell, 211
Ariz. at 187 ¶¶ 34–35 (noting that the fact that appointing new counsel
would cause delay and inconvenience to witnesses was part of a “proper
balancing of relevant interests” under LeGrand). Here, not only would a
delay stemming from change in counsel have resulted in inconvenience to
witnesses, but it may have prejudiced the State’s case.

¶18 Fourth, the court explicitly noted the quality of counsel. The
court observed that Champagne’s counsel was “one of the best capital
defense attorneys in the State of Arizona” and that she was “aggressively”
working on his case.

¶19 Finally, the court considered the timing of Champagne’s
motion and the time that had already elapsed since the alleged offense.
Champagne’s request for new counsel came after counsel had invested
substantial time and effort into the case, nearly two years after Champagne
committed the murders, over a year after he was indicted, less than a year
before trial was scheduled to begin, and only after Champagne lost his
previous trial and was sentenced to more than 700 years. The court
considered the “substantial” delay that would be caused by a change in
counsel, concluding that “[i]t would absolutely prejudice the victim[s’]
interest[s] and the community interest in a speedy resolution of this
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Opinion of the Court

matter.” See Ariz. Const. art. 2, § 2.1(A)(10); Phx. Newspapers, Inc. v. Otis,
243 Ariz. 491, 496 ¶ 16 (App. 2018).

¶20 In fact, only one LaGrand factor weighed in Champagne’s
favor—the proclivity of the defendant to change counsel—as he had not
previously requested a change of counsel. But one factor weighing in
Champagne’s favor does not necessitate a finding that he was entitled to
change counsel when the other factors weighed in support of denying his
request. See LaGrand, 152 Ariz. at 486–87. Thus, the court did not abuse its
discretion in denying Champagne’s request for change of counsel.

¶21 The trial court did not explicitly refer to the LaGrand factors,
but the record indicates that the court considered these factors in assessing
and denying Champagne’s request for change of counsel. See Hernandez,
232 Ariz. at 321 ¶¶ 34–36 (finding trial court did not abuse its discretion
when it considered the LaGrand factors but “did not explicitly refer to the
aforementioned factors”). Although we encourage trial courts to make
explicit LaGrand findings, the record here nevertheless reflects the court’s
adequate consideration of the factors.

B. Question 78 of the Jury Questionnaire

¶22 Champagne argues that the trial court erred by telling the jury
during voir dire and in the jury questionnaire that a life sentence could
result in the possibility of Champagne’s release after twenty-five years.
Because Champagne did not object at trial, he has forfeited any right to
appellate relief unless the purported error rises to the level of fundamental
error. See State v. Henderson, 210 Ariz. 561, 567 ¶ 19 (2005); see also State v.
Bush, 244 Ariz. 575, 591 ¶¶ 66–68 (2018). We review whether the trial court
properly instructed the jury de novo. State v. Rushing, 243 Ariz. 212, 221
¶ 36 (2017).

¶23 Champagne is ineligible for parole under Arizona law. See
A.R.S. § 41-1604.09(I). In Simmons v. South Carolina, a plurality of the United
States Supreme Court held that “where 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. 154, 156 (1994) (plurality
opinion). The Court emphasized that “it is entirely reasonable for a
sentencing jury to view a defendant who is eligible for parole as a greater

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Opinion of the Court

threat to society than a defendant who is not,” and “there may be no greater
assurance of a defendant’s future nondangerousness to the public than the
fact that he never will be released on parole.” Id. at 163–64.

¶24 Before trial, Champagne requested a Simmons instruction.
The State did not object and the final jury instructions during the penalty
phase properly included the following Simmons instruction: “If a life
sentence is imposed, parole is unavailable to Mr. Champagne under state
law.” The record does not indicate and Champagne does not argue that the
court or the parties suggested during trial that, if sentenced to life,
Champagne had the possibility of release on parole.

¶25 Here, the thrust of Champagne’s argument is that the trial
court contradicted Simmons “by telling the jury repeatedly that despite the
lack of parole Mr. Champagne could be released after 25 years for any
reason sufficient to the court.” The jury questionnaire used during voir dire
briefly mentioned the possibility of parole. Specifically, question 78 read:

If you determine that the appropriate sentence is life, the
judge will determine if the sentence will be life without the
possibility of release or life with the possibility of release only after
at least 25 years have been served. Do you agree with the law
that requires the judge, not the jury, to make the decision
about which type of life sentence to impose?

(Emphasis added.) During voir dire, the court addressed prospective jurors
who responded in the negative to question 78 by reiterating the question
and asking if their disagreement with the law would affect their decision-
making process regarding sentencing and their ability to apply the law.

¶26 Champagne incorrectly contends that the court provided no
curative statement to the language in question 78. Any possible
misconception that parole was available to Champagne resulting from
question 78 was cured when the trial court instructed the jury during the
penalty phase that Champagne was ineligible for parole under state law.
Cf. State v. Hulsey, 243 Ariz. 367, 396 ¶ 137 (2018) (“The impression that [the
defendant] ‘could be released on parole if he were not executed’ was
created by the court in the aggravation phase and was never rectified.
Because this misperception was never cured or contradicted, its impact
carried over to the penalty phase.” (quoting Simmons, 512 U.S. at 161)).

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Opinion of the Court

Here, Champagne requested that the trial court provide a Simmons
instruction and the trial court did just that. Given that the statement at issue
occurred during voir dire and the sentencing jury was fully and correctly
advised that Champagne was ineligible for parole, no Simmons error
occurred.

¶27 Moreover, in their closing arguments during the penalty
phase, both the prosecution and defense emphasized that, if sentenced to
life, Champagne would never get out of prison because he was already
serving over a 700-year sentence. Thus, contrary to Champagne’s
assertions, this case is not one in which the jury “was given a false choice
between an un-releasable death sentence and the prospect that if given life
[Champagne] could just be cut loose, set free, released in a mere 25 years.”
Instead, there was no risk that the jury believed that, absent a death
sentence, Champagne could be released from prison because the jury
received a proper instruction that Champagne was ineligible for parole and
counsel repeatedly affirmed that he would never be released from prison.
Therefore, no error occurred.

C. Statements to Detective Egea

¶28 Champagne asserts that the trial court abused its discretion
and violated his constitutional rights by refusing to suppress incriminating
statements made to an undercover police detective while Champagne was
incarcerated. However, Champagne also contends that the court erred by
preventing the jury from hearing a statement he made to the undercover
officer after his Sixth Amendment right to counsel attached—one of the
very statements Champagne sought to suppress—because the rule of
completeness required its admission. We review a trial court’s ruling on a
motion to suppress evidence for abuse of discretion, State v. Hall, 204 Ariz.
442, 451 ¶ 37 (2003), but review purely legal issues and constitutional issues
de novo, State v. Moody (Moody II), 208 Ariz. 424, 445 ¶ 62 (2004). Likewise,
a trial court’s decision to admit or preclude what would otherwise be
inadmissible portions of a statement under the rule of completeness
pursuant to Arizona Rule of Evidence 106 is reviewed for abuse of

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Opinion of the Court

discretion. State v. Prasertphong (Prasertphong II), 210 Ariz. 496, 500–01
¶¶ 20–21 (2005).

1. Motion to Suppress

¶29 Before trial, Champagne moved to suppress statements he
made to undercover Detective Egea, arguing that they were made in
violation of the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments
of the United States Constitution, as well as article 2, sections 4, 8, 10, and
24 of the Arizona Constitution. The State responded that Champagne’s
statements to Egea before initiation of formal charges did not violate any of
Champagne’s constitutional rights but conceded that Egea’s meeting with
Champagne on March 19, 2013, violated Champagne’s Sixth Amendment
right to counsel. The following evidence was presented at the hearing on
the motion to suppress.

¶30 On October 20, 2011, police received an anonymous tip about
a double homicide, naming Champagne as a potential suspect. Champagne
was arrested for unrelated crimes and taken into custody on March 3, 2012.
Champagne was properly read his Miranda rights and told he was under
arrest. Detective Korus, who was investigating the disappearances of
Tapaha and Hoffner, interviewed Champagne about the unrelated crimes.
When Korus mentioned the missing persons investigation, Champagne’s
demeanor changed, and he asked, “[d]o I need a lawyer or something?”
Korus responded, “[y]ou tell me.” But when Korus continued to reference
the missing persons, Champagne said, “if you have any more questions
about that, I want a lawyer present.” Korus immediately ceased
questioning Champagne regarding Tapaha and Hoffner.

¶31 In October 2012, Detective Korus approached Detective Egea,
an experienced undercover officer, about “befriending” Champagne while
he was incarcerated for the unrelated crimes and seeking information about
Champagne’s involvement in the missing persons case and the location of
the bodies. They decided Egea would go undercover as an unscrupulous
private investigator named “Chino.” A gang member incarcerated with
Champagne told investigators that Champagne admitted killing two
people. At the request of law enforcement, the gang member thereafter told
Champagne about Chino and arranged a meeting between the two so
Chino could “help [Champagne] with whatever problem he may have.”

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Opinion of the Court

¶32 Detective Egea, undercover as Chino, met with Champagne
seven times from October 2012 to March 2013. On October 23, Champagne
told Egea, “I got bigger problems. I got some buried assets I need
relocated.” On October 30, Champagne gave Egea a police report authored
by Detective Korus regarding the missing persons, stating, “[t]his is my
problem, know what I mean?” Champagne also said, “[h]ey, Chino, it’s
going to be a big mess.” On February 14, 2013, Champagne again alluded
to the missing persons and indicated that their remains needed to be
moved. On March 4, Champagne told Egea that if the police found the
bodies “he would face the death penalty because of his criminal past.” The
bodies were found the next day and the State charged Champagne with the
murders of Tapaha and Hoffner on March 8.

¶33 Detective Egea visited Champagne on March 19, the only visit
that occurred after Champagne was indicted for the charges in this case.
During that visit, Champagne told Egea that the female victim was a
prostitute and the male victim her pimp. He claimed that he lent them his
apartment for a few hours and when he returned home they were dead.
According to Champagne, the pimp killed the prostitute and then
committed suicide. Champagne also told Egea that despite the charges, “he
didn’t think they had a death penalty case on him.”

¶34 Following the evidentiary hearing, the trial court granted in
part Champagne’s motion to suppress statements to Detective Egea, ruling
that Champagne’s statements on March 19 violated his Sixth Amendment
right to counsel and were therefore inadmissible. The court held that
Champagne’s Sixth Amendment right to counsel attached on March 8,
when he was charged with the murders. As such, the court found that the
State obtained Champagne’s statements before March 8 without violating
his Sixth Amendment right to counsel. Additionally, the court ruled that
no Miranda violation occurred and that Champagne’s statements were
voluntary. Champagne challenges those rulings here.

a. Fifth Amendment

¶35 The trial court properly ruled that no Miranda violation
occurred. Miranda is not implicated when a suspect—unaware that he is
speaking to a law enforcement officer—provides a voluntary statement
because “[t]he essential ingredients of a ‘police-dominated atmosphere’
and compulsion are not present.” Illinois v. Perkins, 496 U.S. 292, 296 (1990).

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Opinion of the Court

Champagne did not know he was speaking to Detective Egea, an
undercover officer. Rather, Champagne believed he was speaking to
Chino, a corrupt private investigator willing to engage in criminal activity.
Because Champagne was unaware that he was speaking to a detective,
there was no “police-dominated atmosphere” requiring a Miranda warning.

¶36 Champagne also argues that he invoked his Fifth
Amendment right to counsel on March 3, 2012, when he told Detective
Korus he wanted a lawyer if he was going to be questioned about the
missing persons. But even if Champagne invoked his right to counsel
during his custodial interrogation with Korus, his subsequent statements to
Detective Egea did not violate the Fifth Amendment because conversations
between suspects and undercover agents “do not implicate the concerns
underlying Miranda.” Id. Thus, the trial court properly ruled that no Fifth
Amendment violation occurred.

b. Voluntariness

¶37 The trial court properly found that the State established by a
preponderance of the evidence that Champagne’s pre-charging statements
to Detective Egea were voluntary. “[C]oercive police activity is a necessary
predicate to the finding that a confession is not ‘voluntary’ within the
meaning of the Due Process Clause of the Fourteenth Amendment.”
Colorado v. Connelly, 479 U.S. 157, 167 (1986). And the United States
Supreme Court “has long held that certain interrogation techniques, either
in isolation or as applied to the unique characteristics of a particular
suspect, are so offensive to a civilized system of justice that they must be
condemned under the Due Process Clause of the Fourteenth Amendment.”
Miller v. Fenton, 474 U.S. 104, 109 (1985); see also Connelly, 479 U.S. at 163–65
(discussing how “coercive government misconduct,” such as “extract[ing]
confessions from the accused through brutal torture,” and “police
overreaching” are “revolting to the sense of justice” and form the backdrop
of the Court’s involuntary confession jurisprudence).

¶38 The trial court properly concluded that there was nothing
coercive about the police conduct at issue here and that the State’s conduct
was neither shocking nor fundamentally unfair. Detective Egea never
suggested he was affiliated with Champagne’s legal team; never suggested
he was affiliated with any law firm; never carried any police reports, files,
or court documents with him; never discussed Champagne’s cases with

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him related to the crimes he was incarcerated for at the time; never
suggested he could pass along information to Champagne’s legal team; and
never suggested their conversations would be confidential.

¶39 The nature of Detective Egea’s undercover work was not, as
Champagne maintains, “an improper scheme” or “the product of police
misconduct that ought to shock the conscience.” Champagne believed he
was talking to a corrupt investigator who would help conceal two murders
by relocating human remains. No constitutional protections exist for “a
wrongdoer’s misplaced belief that a person to whom he voluntarily
confides his wrongdoing will not reveal it.” See United States v. Henry, 447
U.S. 264, 272 (1980) (internal quotation marks omitted). Thus, the trial court
properly ruled that Champagne’s pre-charging statements to Egea were
voluntary.

c. Sixth Amendment

¶40 Champagne argues that all his statements to Detective Egea
violated his Sixth Amendment right to counsel because he invoked that
right on March 3, 2012, during his custodial interrogation with Detective
Korus. But the Sixth Amendment right to counsel is offense-specific, such
that “[i]ncriminating statements pertaining to other crimes, as to which the
Sixth Amendment right has not yet attached, are, of course, admissible at a
trial of those offenses.” McNeil v. Wisconsin, 501 U.S. 171, 176 (1991)
(internal quotation marks omitted). And “the continuing investigation of
uncharged offenses d[oes] not violate [a] defendant’s Sixth Amendment right
to the assistance of counsel.” Arizona v. Roberson, 486 U.S. 675, 685 (1988)
(emphasis added).

¶41 For the charges related to Tapaha and Hoffner, Champagne’s
Sixth Amendment right to counsel attached on March 8, 2013, when he was
formally charged with their murders. Thus, the trial court properly
excluded the statements Champagne subsequently made to Detective Egea
on March 19, but also correctly admitted the statements made before
March 8.

2. Rule of Completeness

¶42 Although the trial court correctly excluded Champagne’s
March 19, 2013 statements, during trial Champagne sought to introduce his

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Opinion of the Court

statement to Detective Egea from that date stating that “he didn’t think they
had a death penalty case on him,” to rebut his March 4, 2013 statement that
if police found the bodies “he would face the death penalty because of his
criminal past.” According to Champagne, the State “opened the door” to
the statement under Arizona Rule of Evidence 106 during its direct
examination of Egea.

¶43 The trial court denied Champagne’s request, ruling that Rule
106 did not apply and that the statement on March 19 did not complete his
statement on March 4. The court emphasized that, based on the parties’
agreement, evidence from the meeting between Champagne and Detective
Egea on March 19 was suppressed, and it found under Evidence Rule 403
that allowing a restricted portion of the conversation to be admitted out of
context would confuse and mislead the jury. Champagne argues now that
because the trial court failed to admit his statement from March 19, “the
jury likely thought [he] was all but confessing to murder,” and that the
“complete statement was necessary to put the remainder, which the [S]tate
had introduced, into context.” According to Champagne, the State was
permitted to “cherry-pick what it thought was incriminating and leave out
the complete statement that explained what Mr. Champagne actually said.”
The trial court did not abuse its discretion.

¶44 Rule 106—the rule of completeness—provides that “[i]f a
party introduces all or part of a writing or recorded statement, an adverse
party may require the introduction, at that time, of any other part—or any
other writing or recorded statement—that in fairness ought to be
considered at the same time.” The same rule generally applies to non-
recorded statements. See State v. Powers, 117 Ariz. 220, 226 (1977). The rule
is one of inclusion not exclusion: if one party introduces part of a recorded
statement, an adverse party may require concurrent introduction of other
parts of that statement to ensure fairness, “thereby ‘secur[ing] for the
tribunal a complete understanding of the total tenor and effect of the
utterance.’” State v. Steinle, 239 Ariz. 415, 418 ¶ 10 (2016) (alteration in
original) (quoting Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 171 (1988)).
But “[p]ermitting testimony related to an entirely separate conversation does
nothing to complete the other conversation.” State v. Huerstel, 206 Ariz. 93,
104 ¶ 38 (2003) (emphasis added).

¶45 The statement Champagne sought to introduce was not
needed to complete a statement already introduced, to avoid the introduced
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statement from being taken out of context, or to prevent jury confusion.
Rather, it was a separate statement from an entirely separate conversation
that occurred on a separate date. That Champagne made contradictory
statements fifteen days apart does not somehow make those two statements
one continuous utterance. Indeed, Champagne wanted the March 19
conversation excluded but sought to use a snippet from it out of context to
rebut his statement from March 4. Thus, the trial court properly ruled that
Rule 106 did not apply under these circumstances.

¶46 Moreover, the trial court acted within its discretion in
precluding Champagne’s March 19 statement under Rule 403. The court
properly ruled that admitting the statement from the March 19
conversation would “simply be confusing” and “mislead” the jury, such
that the statement should be excluded under Rule 403. Cf. Prasertphong II,
210 Ariz. at 501 ¶ 21 (concluding “the rule of completeness confers upon
trial judges the discretion to admit the remaining portions of a statement if
the redacted portion of the statement may mislead the jury”).

D. Limited Cross-Examination of Garcia

¶47 Champagne argues that the trial court abused its discretion
by refusing to permit him to confront and cross-examine Garcia about her
mental illness diagnoses. “We review limitations on the scope of cross-
examination for abuse of discretion.” State v. Delahanty, 226 Ariz. 502, 506
¶ 17 (2011).

¶48 Champagne and Garcia were initially charged as co-
defendants in this case, but Garcia ultimately accepted a plea deal whereby
she agreed to testify against Champagne. Before trial, the State moved in
limine to preclude any questioning regarding, among other things, Garcia’s
mental health diagnoses. Champagne maintained that Garcia’s diagnoses
of bipolar disorder, post-traumatic stress disorder, and depression spoke to
her mental state and her ability to perceive events accurately, as did the fact
that she was not medicated for those disorders and was drinking alcohol
and using methamphetamine before the crimes occurred.

¶49 At oral argument on the motion in limine, the State conceded
that Garcia’s drug use was relevant to her ability to perceive the events
surrounding the murders but argued that her mental health diagnoses were

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irrelevant. The trial court subsequently granted in part and denied in part
the State’s motion in limine. As relevant here, the court stated:

Defendant has not demonstrated either the existence of, or
whether or how, any mental health diagnosis may affect the
witness’[s] ability to observe or perceive the events to which
she may testify. Moreover, the Court has not heard any
evidence to support that the mere fact that Ms. Garcia has a
mental health diagnosis . . . affects [her] credibility or capacity
to recall or communicate. Therefore, the Court finds that
evidence of Ms. Garcia’s mental health diagnoses lacks
relevance in this case and that any probative value is
substantially outweighed by the unfair prejudice. Of course,
the witness may be cross-examined regarding her ability to
perceive, observe, or recall the events to which she testifies;
however, the Court will not allow cross-examination
regarding the mere fact that Ms. Garcia was diagnosed with
any particular mental health diagnosis.

(Citations omitted.)

¶50 The court allowed Champagne limited inquiry into Garcia’s
ability to perceive, observe, and recall the events. The court invoked Rule
403 to preclude Champagne from asking whether prescription medication
Garcia was taking during trial was mental health medication because
Champagne failed to present sufficient evidence suggesting a connection
between any medication and her ability to recall and observe the matters to
which she testified. The court permitted Champagne to question Garcia
regarding the fact that in June 2011 she was prescribed medication and that
she was not taking that medication, as well as her perception of the effect,
if any, of her failure to take such medication.

¶51 During her direct examination, Garcia admitted that her
methamphetamine use made it difficult for her to remember details but not
major events, and she maintained that she never experienced hallucinations
while using methamphetamine. Additionally, Garcia acknowledged that
methamphetamine use affected her memory, that she was taking
methamphetamine and not her prescribed medication during the summer
of 2011, and that she used methamphetamine the night before the murders.

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Opinion of the Court

¶52 The trial court did not abuse its discretion in limiting
Champagne’s cross-examination of Garcia regarding her mental health.
This Court has long held that “great latitude should be allowed in the cross-
examination of an accomplice or co-defendant who has turned State’s
evidence and testifies on behalf of the State on a trial of his co-defendant.”
State v. Morales, 120 Ariz. 517, 520 (1978) (internal quotation marks omitted).
Improper denial of the right of effective cross-examination results in
“constitutional error of the first magnitude and no amount of showing of
want of prejudice would cure it.” Davis v. Alaska, 415 U.S. 308, 318 (1974)
(quoting Brookhart v. Janis, 384 U.S. 1, 3 (1966)). And “if the trial judge has
excluded testimony which would clearly show bias, interest, favor,
hostility, prejudice, promise or hope of reward, it is error and will be
ground for a new trial.” State v. Holden, 88 Ariz. 43, 55 (1960) (citations
omitted).

¶53 Evidence of a witness’s mental health history may be
admissible when it speaks to his or her credibility. See Delahanty, 226 Ariz.
at 506 ¶ 18. However, recognizing that many psychiatric conditions do not
affect a witness’s credibility or his or her ability to observe and
communicate, this Court has held that a trial court may exclude the mental
health history of a witness under Rule 403 “unless the proponent ‘make[s]
an offer of proof showing how it affects the witness’s ability to observe and
relate the matters to which he testifies.’” Id. (alteration in original) (quoting
State v. Zuck, 134 Ariz. 509, 513 (1982) (upholding exclusion of evidence of
paranoid schizophrenia when defense counsel failed to show witness’s
diagnosis affected his ability as a witness)). Before psychiatric history may
be admitted to impeach a witness on cross-examination, “the proponent of
the evidence must make an offer of proof showing how it affects the
witness’s ability to observe and relate the matters to which he testifies.”
Zuck, 134 Ariz. at 513 (emphasis added).

¶54 Here, Champagne failed to show that Garcia’s ability to
observe and relate the events surrounding the murders was affected in any
way by her mental health diagnoses or her failure to take medication for
those diagnoses. Champagne’s only offer of proof was conclusory
statements that Garcia’s mental health diagnoses lessened her ability to
perceive and remember events. In fact, Champagne’s counsel admitted at
trial that the defense did not intend to offer any testimony linking Garcia’s
mental health diagnoses and her ability to perceive and recall the events

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Opinion of the Court

surrounding the murders. Because Champagne failed to show how
Garcia’s mental health diagnoses affected her ability to observe and relate
the matter to which she testified, the trial court did not abuse its discretion
in limiting Champagne’s cross-examination of Garcia under Rule 403.

¶55 Nor did the trial court’s limitation of Champagne’s ability to
cross-examine Garcia about her mental health diagnoses and prescribed
medications for those diagnoses deprive him of his constitutional right to
confront the witnesses against him. See U.S. Const. amend. VI. Garcia was
thoroughly cross-examined about her ability to perceive and relate the
events surrounding the murder, her credibility, her drug usage and how it
affected her ability to remember events, and about prescription medication
she was supposed to be taking in 2011. And she admitted that her use of
methamphetamine impacted her memory. Garcia was also extensively
cross-examined about the benefits she was receiving from her plea deal and
her agreement to testify against Champagne. Thus, the court did not
deprive Champagne of his right to confront Garcia or his ability to defend
against the charges.

E. Voluntary Intoxication Jury Instruction

¶56 Champagne contends the trial court erred in providing the
jury with a voluntary intoxication jury instruction, which he characterizes
as an “unrequested affirmative defense,” prejudicing him and making it
seem that he had admitted the murders but was claiming intoxication as an
excuse. We review a trial court’s decision to give or refuse a requested jury
instruction for abuse of discretion. State v. Dann, 220 Ariz. 351, 363–64 ¶ 51
(2009). And we review de novo whether the jurors were properly
instructed. Id. at 364 ¶ 51.

¶57 During trial, Garcia testified that she and Champagne
frequently got high on methamphetamine together, including the night
before the murders. When finalizing the guilt phase jury instructions, the
State requested an instruction that voluntary intoxication is not a defense
to any criminal act. Champagne objected, contending that such an
instruction would confuse and mislead the jurors. Specifically, he asserted
that he was not arguing he lacked the mens rea to commit the murders due
to intoxication. The State countered that the jurors needed the instruction
to understand what impact evidence of methamphetamine usage should
have on their deliberations and consideration of the evidence.

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Opinion of the Court

¶58 Relying on State v. Payne, 233 Ariz. 484 (2013), the court gave
the following voluntary intoxication instruction: “It is not a defense to any
criminal act if the criminal act was committed due to the temporary
intoxication resulting from the voluntary ingestion, consumption,
inhalation, or injection of alcohol or illegal substances.” See id. at 517–18
¶¶ 149–50. Champagne argues that this instruction deprived him of due
process and a properly instructed jury because the trial court instructed the
jury on an affirmative defense that he did not raise.

¶59 As a preliminary matter, Champagne’s contention that the
trial court erred in giving the voluntary intoxication instruction because
“intoxication is an affirmative defense” fails as a matter of law. Our
legislature abolished all common law affirmative defenses, see A.R.S. § 13-
103(A), and, on its face, A.R.S. § 13-503 clearly provides that voluntary
intoxication caused by use of illegal drugs is not a defense. § 13-503
(“Temporary intoxication resulting from the voluntary ingestion,
consumption, inhalation or injection of alcohol, an illegal substance . . . or
other psychoactive substances or the abuse of prescribed medications does
not constitute insanity and is not a defense for any criminal act or requisite
state of mind.” (emphasis added)).

¶60 Additionally, parties are “entitled to an instruction on any
theory of the case reasonably supported by the evidence.” State v. Bolton,
182 Ariz. 290, 309 (1995). There was extensive testimony at trial that
Champagne was drinking and high on methamphetamine before the
murders. The State persuasively argues that without the voluntary
intoxication instruction the jury could have rejected Champagne’s claim of
innocence but improperly concluded that his voluntary intoxication
prevented him from forming the necessary intent for criminal liability.

¶61 Moreover, Champagne’s argument that the instruction
implied to the jury that he admitted committing the murders is baseless.
Instead, the instruction told the jury that if Champagne committed any
criminal act, voluntary intoxication was not a defense. And contrary to
Champagne’s contention, the instruction did not prejudicially
communicate to the jury that the court believed Champagne was guilty.
Rather, the instruction simply advised the jury of the law. Therefore, no
error occurred.

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Opinion of the Court

F. Supplemental Closing Argument

¶62 Champagne argues that the trial court erred in permitting the
State to make additional closing argument during the guilt phase after the
jury interrupted deliberations to ask a question. We review a trial court’s
response to a jury question for abuse of discretion. State v. Ramirez, 178
Ariz. 116, 126 (1994).

¶63 Although the trial court provided a standard felony murder
jury instruction, the jury submitted the following question during
deliberations: “Can we get a more detailed explanation of felony murder?”
The court expressed to counsel that it was inclined to give each side five
minutes to further argue their position on felony murder. Champagne’s
counsel strenuously objected, arguing that the court should simply refer the
jurors to the existing jury instructions. Additionally, Champagne’s counsel
expressed fear that “further argument [would] invade the province of the
jurors and actually interfere with their jury deliberations.”

¶64 Relying on State v. Patterson, 203 Ariz. 513 (App. 2002),
remanded for reconsideration on other grounds, No. CR-03-0007-PR, 2003 WL
21242145 (Ariz. May 28, 2003), and State v. Fernandez, 216 Ariz. 545 (App.
2007), the court ordered supplemental argument, permitting each side five
minutes to respond to the jury’s question. The prosecutor briefly reviewed
the elements of felony murder, the jury instructions the court provided
concerning that charge, and how the evidence of the kidnapping and
murder of Hoffner established felony murder. Champagne waived
supplemental argument, relying on his closing argument. The jury
resumed deliberations, later returning a guilty verdict for the first-degree
murder of Hoffner, unanimously finding both premeditated murder and
felony murder.

¶65 Arizona Rule of Criminal Procedure 22.3(b) provides that if a
jury requests additional instruction after it has retired for deliberations,
“the court may recall the jury to the courtroom and further instruct the jury
as appropriate.” Similarly, Rule 22.4 provides that if the jury informs the
court that it has reached an impasse, “the court may . . . ask the jury to
determine whether and how the court and counsel can assist the jury’s

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Opinion of the Court

deliberations” and “direct further proceedings as appropriate.” The
comment to Rule 22.4 states:

Many juries, after reporting to the judge that they have
reached an impasse in their deliberations, are needlessly
discharged and a mistrial declared even though it might be
appropriate and helpful for the judge to offer some assistance
in hopes of improving the chances of a verdict. The judge’s
offer would be designed and intended to address the issues
that divide the jurors, if it is legally and practically possible to
do so. The invitation to dialogue should not be coercive,
suggestive, or unduly intrusive.

Although this Court has never addressed whether a trial court can permit
supplemental argument after jury deliberations begin to resolve jury
confusion absent an impasse, we agree with the outcomes in Fernandez and
Patterson. See Fernandez, 216 Ariz. at 550–52 ¶¶ 14, 16–17 (finding that
although jury was not at an impasse when it asked for a more expansive
definition regarding premeditation, the trial court’s order directing
supplemental argument was not an abuse of discretion but “consistent with
more general rules governing the conduct of a trial and assistance to the
jury during deliberations”); Patterson, 203 Ariz. at 515 ¶ 10 (holding that
even where jury is not at an impasse, the trial court has broad discretion to
“fully and fairly respond” to its queries).

¶66 Rule 22.4 provides what the court may do upon an impasse.
But it does not exhaust the possible responses a trial court may make to jury
questions, and indeed by its terms applies only when an impasse exists.
Here, Rule 22.3 applies as the jury requested additional information after
retiring for deliberations without an impasse. Rule 22.3(b) provides that in
such a situation “the court may recall the jury to the courtroom and further
instruct the jury as appropriate.” (Emphasis added.)

¶67 Trial courts have inherent authority to assist juries and
respond to jury requests for additional instructions during deliberations
even when a jury is not at an impasse. See Ariz. R. Crim. P. 1.2 (providing
that the rules of criminal procedure are to be construed “to secure simplicity
in procedure, fairness in administration, the elimination of unnecessary
delay and expense, and to protect the fundamental rights of the individual
while preserving the public welfare”). Trial judges should fully and fairly
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Opinion of the Court

respond to requests from deliberating juries when it is clear they are
confused by the provided instructions. See Patterson, 203 Ariz. at 515 ¶ 10
& n.3. Doing so may prevent needlessly discharging juries and prematurely
declaring mistrials in circumstances where it might be appropriate and
helpful for judges to offer assistance. However, we emphasize that a trial
court should not order supplemental argument after a jury retires for
deliberations unless the court concludes additional argument is the only
way to adequately respond to the jury’s request for additional instruction
without inappropriately commenting on the evidence or prejudicing the
parties’ rights.

¶68 Here, the trial court was justified in permitting counsel to
present additional argument. The jury’s question indicated that it was
struggling with the definition of felony murder and needed clarification on
the law despite the court’s standard instruction on that charge. Given the
jury’s confusion in the face of a straight-forward instruction, referral to that
instruction would have been useless. Presentation of supplemental
argument was an effective and efficient way to ensure a fair verdict without
risk of jury coercion. Although we encourage trial judges to make findings
explaining why they chose not to refer the jury to an original instruction or
further instruct the jury, the trial court here did not abuse its discretion in
permitting supplemental argument to resolve the jury’s confusion.

¶69 Even if permitting supplemental argument was error, it was
clearly harmless. “Error, be it constitutional or otherwise, is harmless if we
can say, beyond a reasonable doubt, that the error did not contribute to or
affect the verdict.” State v. Anthony, 218 Ariz. 439, 446 ¶ 39 (2008) (internal
quotation marks omitted). “The inquiry . . . is not whether, in a trial that
occurred without the error, a guilty verdict would surely have been
rendered, but whether the guilty verdict actually rendered in this trial was
surely unattributable to the error.” Id. (alteration in original) (internal
quotation marks omitted). Here, the jury unanimously found Champagne
guilty of the first-degree premeditated murder of Hoffner, so any error
resulting from the court permitting supplemental closing argument on
felony murder was tangential at most to the outcome and therefore
harmless.

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Opinion of the Court

G. Arizona’s Death Penalty Scheme

¶70 Champagne argues that the trial court erred in refusing to
dismiss the § 13-751(F)(6) aggravating circumstance and failing to strike the
entire Arizona death penalty scheme as unconstitutional. Specifically,
Champagne contends that the (F)(6) aggravator is unconstitutionally vague
and the death penalty scheme violates Furman v. Georgia, 408 U.S. 238 (1972)
(per curiam). We review de novo constitutional claims, State v. Ovante, 231
Ariz. 180, 185 ¶ 18 (2013), including the constitutionality of aggravating
factors, State v. Forde, 233 Ariz. 543, 569 ¶ 105 (2014).

1. Death Penalty Scheme

¶71 Before trial, Champagne made several constitutional
objections to Arizona’s entire death penalty scheme. Here, Champagne
makes no argument warranting a departure from this Court’s precedents
upholding the constitutionality of the Arizona death penalty scheme.
Champagne contends that scheme violates Furman, a nearly fifty-year-old
opinion in which the United States Supreme Court effectively struck down
all death penalty schemes in the United States. 408 U.S. at 239–40; see Carol
S. Steiker & Jordan M. Steiker, Sober Second Thoughts: Reflections on Two
Decades of Constitutional Regulation of Capital Punishment, 109 Harv. L. Rev.
355, 357 (1995). But a few years later in Gregg v. Georgia, the Court ended
the de facto moratorium on capital punishment, noting that “the concerns
expressed in Furman that the penalty of death not be imposed in an
arbitrary or capricious manner can be met by a carefully drafted statute that
ensures that the sentencing authority is given adequate information and
guidance.” 428 U.S. 153, 195 (1976) (plurality opinion).

¶72 Champagne’s argument that the Arizona death penalty
scheme violates the Eighth and Fourteenth Amendments of the United
States Constitution, as well as article 2, sections 4 and 15 of the Arizona
Constitution, is based on his contention that “A.R.S. § 13-751 concededly
provides no path to meaningfully distinguish the few cases in which death
is deserved from the many which do not.” Indeed, “[t]o be constitutionally
sound, ‘a capital sentencing scheme must genuinely narrow the class of
persons eligible for the death penalty and must reasonably justify the
imposition of a more severe sentence on the defendant compared to others
found guilty of murder.’” State v. Hidalgo, 241 Ariz. 543, 549 ¶ 14 (2017)
(quoting Lowenfield v. Phelps, 484 U.S. 231, 244 (1988)). Champagne

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Opinion of the Court

essentially contends that Arizona’s death penalty scheme does not satisfy
that requirement. But we rejected a similar challenge in State v. Greenway,
170 Ariz. 155, 160 (1991), and more recently in Hidalgo, 241 Ariz. at 549–52
¶¶ 14–29. For the reasons expressed in Hidalgo, we likewise reject
Champagne’s arguments here.

2. A.R.S. § 13-751(F)(6)

¶73 Before trial, Champagne moved to dismiss the § 13-751(F)(6)
aggravating factor, arguing that factor is unconstitutional. Champagne
later moved to strike the State’s allegations of an aggravating circumstance
under § 13-751(F)(6), arguing that the parameters of the (F)(6) aggravating
factor have been created by the Arizona judiciary and therefore violate
separation of powers. The trial court rejected Champagne’s motions.

¶74 In its preliminary and final aggravation phase jury
instructions, the trial court noted that all first-degree murders are “to some
extent cruel.” The court defined “especially” as “unusually great or
significant,” and noted “[t]he term ‘cruel’ focuses on the victim’s pain and
suffering.” The court instructed that in order to find a first-degree murder
was committed in an especially cruel manner, the jury “must find that the
victim consciously suffered physical or mental pain, distress or anguish
prior to death” and that “[t]he defendant must know or should have known
that the victim would suffer.”

¶75 Section 13-751(F)(6) provides that the trier of fact shall
consider whether “[t]he defendant committed the offense in an especially
heinous, cruel or depraved manner” as an aggravating circumstance in
determining whether to impose a death sentence. This Court has held that
“[t]he (F)(6) aggravator is facially vague but may be remedied with
appropriate narrowing instructions.” State v. Tucker, 215 Ariz. 298, 310 ¶ 28
(2007). And we have approved of “especially cruel” instructions that
require the jury to find two essential narrowing factors: “the victim was
conscious during the mental anguish or physical pain” and “the defendant
knew or should have known that the victim would suffer.” Id. at 310–11
¶ 31 (citing cases).

¶76 Here, the trial court’s instructions to the jury were not
unconstitutionally vague. The court properly instructed the jury that to
find the (F)(6) aggravating circumstance, the jury “must find that the victim

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Opinion of the Court

consciously suffered physical or mental pain, distress or anguish prior to
death” and that the “defendant must know or should have known that the
victim would suffer.” Because the instruction included the two essential
narrowing factors described in Tucker, the trial court sufficiently narrowed
the (F)(6) factor, rendering it constitutional. See State v. Sanders, 245 Ariz.
113, 126 ¶ 43 (2018); Tucker, 215 Ariz. at 310–11 ¶¶ 28, 31.

¶77 Likewise, Champagne’s contention that this Court violated
the separation of powers doctrine by narrowing the (F)(6) aggravator to
render it constitutional is meritless. See State v. Tocco, 156 Ariz. 116, 119–20
(1988) (“We are charged with the responsibility of giving a statute a
constitutional construction whenever possible. Nor is it our responsibility
to declare invalid for vagueness every statute which we believe could have
been drafted with greater precision.” (citation omitted)). We have
previously rejected the argument that the legislature must statutorily
narrow the scope of death-eligible murders. Hidalgo, 241 Ariz. at 549–52
¶¶ 17–28; cf. Smith v. Stewart, 140 F.3d 1263, 1272 (9th Cir. 1998) (rejecting
the claim that “Arizona does not properly narrow the class of death penalty
recipients”). As such, the trial court did not err in instructing the jury on
the (F)(6) aggravator.

H. Mitigation Issues

1. Mitigation Testimony

¶78 Champagne argues that the trial court abused its discretion in
preventing his mother and sister from providing mitigation evidence
during the trial’s penalty phase after they indicated they would invoke their
Fifth Amendment privileges if called to testify. We review a trial court’s
ruling on admission of mitigating evidence for abuse of discretion. See
Payne, 233 Ariz. at 518 ¶ 153. And we also review a trial court’s decision to
preclude the testimony of a witness intending to assert her Fifth
Amendment privilege against self-incrimination for abuse of discretion.
State v. Harrod, 218 Ariz. 268, 275–76 ¶ 19 (2008).

¶79 Before trial, the State requested that the trial court appoint
counsel for Champagne’s mother and sister after discovering jail calls
suggesting they were involved in hiding the victims’ bodies after the
murders. Champagne did not object to such appointments, but counsel
expressed concern that, if his mother’s and sister’s attorneys advised them

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Opinion of the Court

to remain silent and not participate in the trial, that would “eviscerate
approximately 25 percent of the possible mitigation evidence.” The court
granted the State’s request and appointed counsel for Champagne’s mother
and sister.

¶80 The court heard oral argument on the parties’ numerous
motions regarding the testimony of Champagne’s mother and sister. When
the prosecutor proffered the topics the State intended to cross-examine the
witnesses about, Champagne’s mother and sister, as well as their attorneys,
maintained that they would invoke their Fifth Amendment rights to silence
if questioned by the State during the guilt and penalty phases. The court
ruled that Champagne’s mother and sister both had a valid Fifth
Amendment right to remain silent in response to any questions asked
during the guilt and penalty phases involving their connection to or
involvement with Champagne.

¶81 Additionally, considering the position taken by Champagne’s
mother and sister—that they would answer questions asked by defense
counsel but invoke the Fifth Amendment in response to any of the State’s
questions on cross-examination—the court found that preclusion of their
testimony entirely was the necessary result to the State’s inability to cross-
examine the witnesses. The court noted the unusual nature of the case but
emphasized that “if allowed to testify, the witnesses would answer
questions on direct by Defense and invoke to all questions asked by the
State, thus placing the Court in the virtually certain position of striking their
testimony and instructing the jury to disregard anything either witness
said.” The court also emphasized that its order precluding the witnesses’
testimony did not strip Champagne of his ability to present the identified
mitigation evidence through his mitigation witness in place of his mother
and sister.

¶82 Defendants in capital cases are entitled to present mitigation
evidence and, pursuant to § 13-751(C), “the prosecution or the defendant
may present any information that is relevant to any of the mitigating
circumstances . . . regardless of its admissibility under the rules governing
admission of evidence at criminal trials.” (Emphasis added.) But although
defendants have a right to offer the testimony of witnesses to present a
defense and, if necessary, to compel their attendance, Washington v. Texas,
388 U.S. 14, 19 (1967), that right, guaranteed by the Sixth Amendment, is
not absolute, Harrod, 218 Ariz. at 276 ¶ 20.
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Opinion of the Court

¶83 This Court has held that if the trial court determines that a
witness legitimately could refuse to answer essentially all relevant
questions, “then that witness may be totally excused without violating an
individual’s Sixth Amendment right to compulsory process.” Harrod, 218
Ariz. at 276 ¶ 20 (internal quotation marks omitted). But this exception is a
narrow one that is only applicable “when the trial judge has extensive
knowledge of the case and rules that the Fifth Amendment would be
properly invoked in response to all relevant questions that the party calling
the witness plans on asking.” Id. ¶ 21 (internal quotation marks omitted).
Moreover, the United States Supreme Court has held that “[i]t is well
established that a witness, in a single proceeding, may not testify
voluntarily about a subject and then invoke the privilege against self-
incrimination when questioned about the details.” Mitchell v. United States,
526 U.S. 314, 321 (1999). Precluding such testimony is necessary because
“[a] witness may not pick and choose what aspects of a particular subject to
discuss without casting doubt on the trustworthiness of the statements and
diminishing the integrity of the factual inquiry.” Id. at 322.

¶84 In determining whether to allow a witness to testify and
invoke her right to remain silent in the presence of the jury, “[t]he correct
rule . . . is that if the court finds that the [F]ifth [A]mendment will be
properly invoked, it has discretion to determine whether to allow the
proponent of the evidence to call the witness and elicit the claim of privilege
before the jury.” State v. Corrales, 138 Ariz. 583, 588 (1983). And the court
may refuse to permit the witness to be called entirely “if it finds that the
benefits to be gained will be outweighed by the danger of prejudice.” Id.
at 588–89.

¶85 Here, the trial court had intimate knowledge of the case and
determined—after extensive briefing on the issues, oral argument, and
examining the potential witnesses—that Champagne’s mother and sister
could legitimately invoke their Fifth Amendment rights to remain silent in
response to all relevant questions the State intended to ask during cross-
examination. Because Champagne’s right to present mitigation does not
permit his witnesses to selectively invoke the Fifth Amendment privilege,
the trial court acted within its discretion in precluding them from testifying.
See Harrod, 218 Ariz. at 276 ¶¶ 22–23.

¶86 Moreover, as the trial court noted in its ruling, precluding
Champagne’s mother and sister from testifying as mitigation witnesses did
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Opinion of the Court

not prevent Champagne from presenting the same mitigation evidence
through his investigator. Champagne’s investigator testified for over three
days and presented a 198-slide PowerPoint beginning with Champagne’s
birth and extensively detailing his childhood and background. Champagne
has failed to identify any specific information that he was barred from
presenting by the trial court’s ruling. Consequently, no error or prejudice
occurred.

2. Mitigation Rebuttal

¶87 Champagne contends the trial court abused its discretion by
permitting inappropriate, inadmissible mitigation rebuttal by the State such
that a mistrial should have been declared. We review a trial court’s denial
of a motion for a mistrial for abuse of discretion. Payne, 233 Ariz. at 504
¶ 61. Likewise, we review a trial court’s admission of evidence during the
penalty phase for abuse of discretion, State v. Nordstrom, 230 Ariz. 110, 114
¶ 8 (2012), giving “deference to a trial judge’s determination of whether
rebuttal evidence offered during the penalty phase is ‘relevant’ within the
meaning of the statute,” State v. McGill, 213 Ariz. 147, 156–57 ¶ 40 (2006).
“The threshold for relevance is a low one.” State v. Leteve, 237 Ariz. 516, 529
¶ 48 (2015) (internal quotation marks omitted).

¶88 Before trial, Champagne moved to preclude the State from
offering any rebuttal evidence not specifically related to his proffered
mitigation evidence. Citing Leteve, 237 Ariz. at 528–29 ¶ 47, the trial court
ruled that the State’s mitigation rebuttal would be admitted so long as it
was “relevant to show that the defendant should not be shown leniency and
[wa]s not unfairly prejudicial.”

¶89 During the penalty phase, “the defendant and the state may
present any evidence that is relevant to the determination of whether there
is mitigation that is sufficiently substantial to call for leniency.” A.R.S. § 13-
752(G). And to assist the trier of fact in making that determination,
“regardless of whether the defendant presents evidence of mitigation, the state
may present any evidence that demonstrates that the defendant should not
be shown leniency including any evidence regarding the defendant’s
character, propensities, criminal record or other acts.” Id. (emphasis
added). This Court has repeatedly held that, taken together, the statutes
governing the scope of mitigation rebuttal—§ 13-751(G) and § 13-752(G)—
“permit jurors to hear evidence relating to circumstances of the crime and

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Opinion of the Court

the defendant’s character, which they must do to fulfill their ‘duty to
evaluate all the relevant evidence when determining the defendant’s
sentence.’” See, e.g., State v. Guarino, 238 Ariz. 437, 440 ¶ 13 (2015) (quoting
State v. Carlson, 237 Ariz. 381, 396 ¶ 54 (2015)). But we have also stated that
due process constrains the admission of the state’s evidence during the
penalty phase, including evidence that is unduly prejudicial. Id. at 441 ¶ 15.

¶90 Champagne contends that only rebuttal evidence relevant to
his proffered mitigation was admissible at trial, but the text of § 13-752(G)
clearly permitted the State to present any evidence to demonstrate that
Champagne should not be shown leniency. During the penalty phase,
Champagne presented mitigation evidence seeking to reduce his moral
culpability because of his family background, his childhood exposure to
gangs, and his involvement with the criminal justice system beginning at
age fifteen. The court properly permitted the State to proffer evidence to
argue that he should not be shown leniency.

a. Prior Convictions

¶91 During the penalty phase, Champagne objected to any
testimony about his previous convictions. Those convictions included a
second-degree murder Champagne committed in 1991 and twenty-four
counts each of attempted first-degree murder and aggravated assault of a
police officer using a deadly weapon Champagne committed in 2012 when
he took Garcia and his young son hostage and engaged in a shootout with
police. Champagne argued then, and maintains now, that such evidence
did not rebut his mitigation. However, the trial court properly overruled
his objections because the 1991 murder and 2012 shootout demonstrated
Champagne’s character, propensities, and criminal record. “The facts
establishing an aggravating circumstance, or the circumstances of the
murder more generally, ‘are relevant during the penalty phase because they
tend to show whether the defendant should be shown leniency.’” Guarino,
238 Ariz. at 440 ¶ 13 (quoting State v. Armstrong, 218 Ariz. 451, 461 ¶ 38
(2008)).

b. Detective Korus

¶92 Detective Korus narrated a video that Champagne’s neighbor
took of gang graffiti on the walls of Champagne’s apartment after he was
evicted, which was offered to demonstrate, for character purposes,

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Opinion of the Court

Champagne’s affiliation with the East Side Locos 13th Street gang.
Additionally, Korus’s testimony regarding the events that occurred during
the shootout case, including narrating video footage from the crime scene,
constituted proper mitigation rebuttal. Facts underlying a prior criminal
conviction are relevant to show that a defendant is not entitled to leniency
and may be properly admitted when not unduly prejudicial. See, e.g., State
v. Pandeli, 215 Ariz. 514, 528–29 ¶¶ 51–53 (2007). Korus’s testimony was
relevant and not unduly prejudicial because it simply explained facts that
occurred during the shootout case and identified Champagne’s gang
affiliation.

c. Detective Morales

¶93 Detective Morales, the case agent for the 1991 murder
referenced above, testified about the details of Champagne’s second-degree
murder conviction for that crime. Morales testified that Champagne, who
had been huffing paint, ingesting LSD, and drinking alcohol, and another
member of the East Side Locos 13th Street gang arrived at a house party
with knives and eventually they were “swinging wildly at people . . .
stabbing people . . . total melee.” Morales testified that Champagne
murdered a “clean-cut” only child—a nineteen-year-old man with no
criminal record or gang ties—by stabbing him through the heart and skull,
and that the victim had numerous defensive wounds. Additionally,
Morales testified that Champagne fled the scene and hid in Nevada and
California before he was found three months later. Morales noted that the
presentence report demonstrated that Champagne had failed on probation
and “posed an unreasonable risk and danger to the community,” dating
back to 1991. The trial court did not abuse its discretion in finding this
testimony was relevant mitigation rebuttal and not unduly prejudicial
because Morales simply provided details about the crime scene, the victim’s
injuries, Champagne’s fleeing from the scene, and other details about the
conviction.

d. Attempted Plea Withdrawal

¶94 The State presented mitigation rebuttal, over Champagne’s
objection, that he attempted to withdraw his plea for the 1991 murder. The
court did not abuse its discretion by allowing such evidence, as it was
relevant to Champagne’s character and not unduly prejudicial.

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e. Detective Davis

¶95 Detective Davis testified that one of Champagne’s fellow
inmates informed law enforcement that Champagne was seeking approval
from the Mexican Mafia, with which Champagne was affiliated, to hurt or
kill Garcia to prevent her from testifying against him. Evidence that
Champagne took steps to silence Garcia was relevant to his character and
propensities and rebutted mitigation testimony that there was humanity
and good in Champagne. Contrary to Champagne’s assertion that this
testimony was inappropriate because the informant inmate was mentally
ill, the trial court did not err in permitting the testimony. And the testimony
did not unduly prejudice Champagne because the defense cross-examined
Davis on the inmate’s mental competency, including his Rule 11
proceedings, and established that Davis never actually met the inmate.

f. Officers Johnson and Knudson

¶96 Over Champagne’s objection, the trial court permitted
Officers Johnson and Knudson—who were present at the 2012 shootout
incident—to testify about the events they witnessed in their law
enforcement capacity. Knudson testified about how they entered the
house, that Garcia was screaming frantically, and that the bullets were
coming at them through the walls. Johnson testified that Champagne was
submissive when Johnson restrained him during the breach and that
Champagne did not fight back as the officers recovered Garcia.
Additionally, Johnson testified on cross-examination that Champagne said
he was “sorry” when he was apprehended, but on re-direct he testified that
Champagne never inquired as to whether he injured or killed anyone. The
officers’ testimonies were not cumulative because they provided different
information about the shootout incident. Also, contrary to Champagne’s
assertion, their testimonies were not impermissible victim impact
statements but rather statements as factual witnesses.

¶97 Moreover, all the State’s proffered evidence of Champagne’s
2012 hostage situation and shootout with police was relevant mitigation
rebuttal because it demonstrated that Champagne did not value human life
and that he intended to kill numerous police officers. After he was
apprehended in the shootout case, Champagne indicated the ammunition
in his AR-15 rifle was hollow point, which causes more damage on impact
than other types of ammunition. The specific AR-15 ammunition is known

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Opinion of the Court

on the streets as a “cop killer round.” Also, Champagne said he was
intentionally shooting at police knowing that his ammunition could go
through walls. Additionally, when Champagne released his son, he used
Garcia as a human shield. When Champagne was apprehended, he never
asked if he injured or killed anyone. Thus, evidence related to the shootout
was relevant to Champagne’s character and propensity for violence, and it
was not unduly prejudicial as it was a factual account of his prior criminal
actions.

g. Examination of Champagne’s Niece

¶98 The State asked Champagne’s niece if she had been forced to
testify under threat of arrest and, after the defense’s objection to her
affirmative response, she clarified that she testified subject to subpoena by
the defense. She also indicated that her husband did not want her to testify,
and that he wrote multiple letters to the judge, defense, and prosecution
begging that she not be forced to testify because it would be “extremely
traumatic” for her to speak about her childhood. The State’s questioning of
Champagne’s niece was appropriate and relevant mitigation rebuttal
because the questions went to possible bias of the witness’s testimony and
why she testified the way she did. And we reject as baseless Champagne’s
contention that a mistrial should have been declared because the prosecutor
said, “I’m so sorry you are here,” thus purportedly implying that the
defense had “done something wrong or unsavory.”

h. Tape of Shootout Case

¶99 During trial, Champagne objected to playing an audio
recording of the shootout incident, contending it constituted a retrial of the
2012 case. The trial court accepted the State’s contention that playing the
recording provided probative value distinct from the prior testimony by
officers at the scene. But the court thereafter paused the recording when it
played Garcia screaming as police entered the house, and the trial court
stated to counsel, “[w]e’re stepping up to the line of unfairly prejudicial at
this point.” When the court asked the State to explain the probative value
of the remaining portion of the recording, the prosecution reasoned that it
“[c]aptures the crime that [Champagne] committed” and “essentially
shows his demeanor as he continues to shoot at the police as they continue
to advance.” The trial court decided to preclude the remainder of the
recording and found, “we have reached the moment where it is unfairly

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Opinion of the Court

prejudicial to continue to hear Ms. Garcia simply scream in agony during
this incident.”

¶100 The court did not abuse its discretion in admitting the
recording because it provided factual details of the prior crime and
Champagne’s character in a way unique from testimony a witness could
provide. And even if the court abused its discretion in admitting the
recording, it was not unduly prejudicial because the court stopped playing
the recording when continuing to play it would have become unfairly
prejudicial, and because it was admitted by stipulation and thus could be
considered by the jury regardless of whether it was played in open court.
Thus, the court did not abuse its discretion in permitting the portion of the
recording that it did.

¶101 Therefore, contrary to Champagne’s arguments, the trial
court’s admission of the State’s mitigation rebuttal did not allow a
rehashing of the guilt and aggravation phases. Rather, the evidence
rebutted the thrust of Champagne’s mitigation evidence and was relevant
to his character, propensities, and criminal record.

I. Victim Impact Statements

¶102 Champagne contends that the trial court erred in allowing
Hoffner’s adopted brother and sister to present victim impact statements
because they are not “victim’s family.” According to Champagne, because
Hoffner’s siblings were adopted, “they were not statutory victims” under
§ 13-752(S)(2) and their impact statements were impermissible. We review
for abuse of discretion a trial court’s admission of victim impact evidence.
State v. Benson, 232 Ariz. 452, 466 ¶ 62 (2013). And we review de novo issues
of statutory interpretation. State v. Christian, 205 Ariz. 64, 66 ¶ 6 (2003).

¶103 No error, fundamental or otherwise, occurred when the court
permitted Hoffner’s adopted siblings to give victim impact statements.
Victims are permitted to provide information during the penalty phase
about the murdered person and the impact of the murder on the victim’s
family. § 13-752(R). Victim is defined as “the murdered person’s spouse,
parent, child, grandparent or sibling, any other person related to the
murdered person by consanguinity or affinity to the second degree or any
other lawful representative of the murdered person.” § 13-752(S)(2)
(emphasis added).

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Opinion of the Court

¶104 Adopted siblings are clearly “victims” under the statute, and
Champagne’s argument that adopted siblings are not “statutory victims”
belies the plain meaning of the statute and would result in absurd
consequences. The statute does not limit “siblings” to blood siblings, and
indeed expressly includes relatives by affinity (marriage). Champagne did
not raise this spurious argument at trial and he offers no authority to
support it now.

J. Abuse of Discretion Review

¶105 Arizona law requires this Court to “review all 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). We will affirm the jury’s finding of aggravating circumstances “if
there is any reasonable evidence in the record to sustain it,” State v. Morris,
215 Ariz. 324, 341 ¶ 77 (2007) (internal quotation marks omitted), and
uphold the jury’s imposition of the death sentence “so long as any
reasonable jury could have concluded that the mitigation established by the
defendant was not sufficiently substantial to call for leniency,” id. ¶ 81. We
conduct this review “viewing the facts in the light most favorable to
sustaining the verdict.” State v. Gunches, 240 Ariz. 198, 207 ¶ 41 (2016).

¶106 The jury did not abuse its discretion in determining that
Champagne deserved death after finding the State proved the following
three aggravating circumstances beyond a reasonable doubt: (1) that
Champagne was previously convicted of a serious offense under § 13-
751(F)(2); (2) that he murdered Hoffner in an especially cruel manner under
§ 13-751(F)(6); and (3) that he committed multiple homicides on the same
occasion under § 13-751(F)(8). Evidence presented during the aggravation
phase overwhelmingly established that Champagne was convicted of
numerous felonies satisfying the (F)(2) aggravator, including his second-
degree murder conviction for the 1991 murder and his convictions for the
attempted first-degree murder and aggravated assault of twenty-four
police officers for the 2012 shootout case. Similarly, reasonable evidence
supported the jury’s convicting Champagne of the second-degree murder
of Tapaha and thus the jury’s finding of the (F)(8) aggravator.

¶107 Moreover, the State presented reasonable evidence to sustain
the jury’s finding that Champagne murdered Hoffner in an especially cruel
manner, satisfying the (F)(6) aggravator. Hoffner witnessed Champagne

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Opinion of the Court

murder her boyfriend, Tapaha, when Champagne shot him in the head,
placing her in apprehension of her own possible demise. Immediately
thereafter, Champagne, holding a gun, led her into the bedroom and gave
her methamphetamine. Champagne left Hoffner in the bedroom with
Garcia, who was positioned in front of the doorway with a gun in her lap.
Champagne quickly returned and strangled Hoffner with an electrical cord.
Hoffner unquestionably suffered mental anguish about her own fate while
being strangled so shortly after seeing her boyfriend killed. See State v.
Ellison, 213 Ariz. 116, 142 ¶ 120 (2006) (“Mental anguish is established if the
victim experienced significant uncertainty as to her ultimate fate or if the
victim was aware of a loved one’s suffering.” (internal quotation marks
omitted)); State v. Djerf, 191 Ariz. 583, 595 ¶ 45 (1998) (noting that mental
anguish “may also include knowledge that a loved one has been killed”).
She also suffered physical pain as she clawed with both hands at her neck
trying to breathe as Champagne tightened the cord with each turn of the
wrench.

¶108 Even if we assume Champagne proved the various mitigating
factors that he argued to the jury, a reasonable jury could have concluded
they were not sufficiently substantial to warrant leniency. The thrust of
Champagne’s mitigation evidence was related to his dysfunctional family,
but the State’s proffered evidence showing that his mother was loving and
supportive tended to rebut his claims that he was an unloved and neglected
child. Moreover, the jury reasonably could have given little weight to the
impact of his allegedly tumultuous family situation because he was nearly
forty-one years old when he murdered Hoffner. See, e.g., State v. Nelson, 229
Ariz. 180, 191 ¶ 53 (2012). Thus, the jury did not abuse its discretion in
imposing the death sentence.

K. Other Constitutional Claims

¶109 Champagne raises twenty-three additional constitutional
claims which he concedes have been previously rejected by this Court but
nonetheless wishes to preserve for federal review. We decline to revisit
these claims.

CONCLUSION

¶110 For the reasons above, we affirm Champagne’s convictions
and sentences.

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