State of Arizona v. Rodney Eugene Hardy

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-09-0224-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2005-127282-001 SE
RODNEY EUGENE HARDY, )
)
Appellant. )
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Michael W. Kemp, Judge

AFFIRMED
________________________________________________________________

THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Julie A. Done, Assistant Attorney General
Attorneys for the State of Arizona

DROBAN & COMPANY PC Anthem
By Kerrie M. Droban
Attorney for Rodney Eugene Hardy
________________________________________________________________

P E L A N D E R, Justice

¶1 A jury found Rodney Hardy guilty of first degree

burglary, kidnapping, and two counts of first degree murder. He

was sentenced to death on both murder counts and to prison terms

on the other counts. We have jurisdiction over his appeal under

Article 6, Section 5(3) of the Arizona Constitution and A.R.S.

1
§ 13-4031 (Supp. 2011).1

I. FACTUAL AND PROCEDURAL BACKGROUND

¶2 On Thursday, August 25, 2005, Hardy’s wife Tiffany

Lien called her friend Meleigha and said she needed a place to

stay.2 Meleigha told Tiffany that she could move in with her,

but Tiffany did not stay with her that night.

¶3 The next day, Hardy slapped Tiffany, and she left

their apartment. That afternoon, Hardy asked his son to keep

Hardy’s gun because “he didn’t need any drama,” but Hardy

retrieved the gun that night. Hardy also went to a club that

evening and told the bartender, “my baby is gone,” and he “could

kill them both.” That same night, Tiffany went out with

Meleigha, Julius, and Don. Tiffany and Don were romantically

involved.

¶4 Hardy left a message on Meleigha’s cell phone shortly

after midnight on Saturday, August 27, saying that he knew where

Tiffany was, whom she was with, and what vehicle they were

driving. When Hardy called again, Meleigha handed the phone to

Tiffany, and Hardy and Tiffany argued. During that call or a

subsequent one, Tiffany handed the phone to Don, who also argued

1
In this opinion, we cite the current version of statutes
that have not materially changed since the events at issue.
2
We present the facts in the light most favorable to
sustaining the jury’s verdicts. State v. Chappell, 225 Ariz.
229, 233 ¶ 2 n.1, 236 P.3d 1176, 1180 n.1 (2010).

2
with Hardy.

¶5 Later that weekend, Hardy visited his friend Krystal.

He was intoxicated and upset, saying “she’s gone and I don’t

know what to do,” and “it’s too late for her to come back.”

¶6 On Sunday, August 28, shortly after midnight,

Meleigha, Julius, Tiffany, and Don went to Meleigha’s apartment.

Eventually, Meleigha and Julius went to Meleigha’s bedroom, and

Tiffany and Don went to a second bedroom further down the hall.

¶7 At approximately 4 a.m., Meleigha went outside and

downstairs to a vending machine. While she was there, Hardy

came up behind her and then pushed her up the stairs and into

her apartment. He followed and headed down the hallway. When

Hardy paused at the first bedroom door, Meleigha shouted,

“That’s my boyfriend.” Hardy continued to the second bedroom,

opened the door, cocked a gun, and started shooting. Julius and

Meleigha ran out of the apartment, hearing several shots as they

fled.

¶8 When police arrived at Meleigha’s apartment, Tiffany

and Don were unresponsive. Tiffany had been shot twice, once in

the head and once in the neck. Don had been shot several times

— in his left hand, both shoulders, chest, and forehead. Both

died at the scene.

¶9 On Monday, August 29, Hardy turned himself in to

police. He was indicted on two counts of first degree murder,

3
first degree burglary, attempted kidnapping of Tiffany, and

kidnapping of Meleigha. The State later dropped the attempted

kidnapping charge. Hardy testified at trial and admitted that

he shot Tiffany and Don, but claimed that he committed

manslaughter in the heat of passion, not first degree murder.

¶10 The jury returned guilty verdicts on all counts and

found two aggravating circumstances under A.R.S. § 13-751:

(F)(2) (prior serious offense), and (F)(8) (multiple homicides).

After finding Hardy’s mitigation not sufficiently substantial to

call for leniency, the jury determined that death was the

appropriate sentence for each of the murders. The trial court

also sentenced Hardy to two consecutive sentences of life

imprisonment with the possibility of parole after twenty-five

years for the kidnapping and burglary convictions.

II. ISSUES ON APPEAL

A. Jury selection

¶11 Hardy argues that the trial court erred in denying his

challenges, based on Batson v. Kentucky, 476 U.S. 79 (1986), to

the State’s peremptory strikes of two minority jurors. We

review for clear error. State v. Gallardo, 225 Ariz. 560, 565

¶ 10, 242 P.3d 159, 164 (2010).

¶12 Racially discriminatory use of a peremptory strike

violates the Equal Protection Clause of the Fourteenth

4
Amendment. Batson, 476 U.S. at 89.3 A Batson challenge involves

three steps: (1) The defendant must make a prima facie showing

of discrimination, (2) the prosecutor must offer a race-neutral

reason for each strike, and (3) the trial court must determine

whether the challenger proved purposeful racial discrimination.

Gallardo, 225 Ariz. at 565 ¶ 11, 242 P.3d at 164. In the third

step, the trial court evaluates the striking party’s

credibility, considering the demeanor of the striking attorney

and the excluded juror to determine whether the race-neutral

rationale is a pretext for discrimination. Snyder v. Louisiana,

552 U.S. 472, 477 (2008). “Although not dispositive, the fact

that the state accepted other minority jurors on the venire is

indicative of a nondiscriminatory motive.” Gallardo, 225 Ariz.

at 565 ¶ 13, 242 P.3d at 164 (internal quotation marks and

alterations omitted).

¶13 By asking the prosecutor to give race-neutral reasons

3
Hardy asserts on appeal that denial of his Batson challenge
violated his rights to an impartial jury, fair trial, and due
process, citing the Fifth, Sixth, Eighth, and Fourteenth
Amendments of the United States Constitution, and Article 2,
sections 1, 4, 13, 15, 23, and 24 of the Arizona Constitution.
But Batson and its progeny rest on equal protection grounds, and
Hardy relies solely on those cases. Arguments must contain “the
contentions . . . and the reasons therefor, with citations to
the authorities, statutes and parts of the record relied on.”
Ariz. R. Crim. P. 31.13(c)(vi). We therefore limit our review
to the Equal Protection Clause of the Fourteenth Amendment and
do not consider additional, unsupported constitutional claims.
See State v. Bocharski, 218 Ariz. 476, 486 ¶ 41 n.9, 189 P.3d
403, 413 n.9 (2008).

5
for striking minority Jurors 10 and 29, the trial court

implicitly found that Hardy made a prima facie showing of

discrimination. The prosecutor said he struck Juror 10 because

he believed that (a) she was predisposed to favor a life

sentence based on long-held beliefs that had only recently

changed, and (b) her brothers’ drug addictions could make her

sympathetic to Hardy’s mitigation relating to familial drug

abuse. Hardy argued that a non-minority juror was similarly

situated and not stricken. The prosecutor distinguished the

non-minority juror, who did not have a strong opinion on the

death penalty and whose father had been convicted of possessory

drug crimes and, according to that juror, had been treated

fairly by the state.

¶14 The prosecutor stated that he struck Juror 29 because

she previously had been adamantly opposed to the death penalty,

was combative with the prosecutor, believed a person could not

put feelings aside, cringed at the phrase “an eye for an eye,”

and expressed a preference for a life sentence. Again, Hardy

argued that a non-minority juror was similarly situated and yet

was not stricken. The prosecutor distinguished that non-

minority juror, who merely wished the death penalty were not

needed, but did not expressly oppose it. Additionally, the

record does not suggest that the non-minority juror was

combative with anyone or recoiled at any point during voir dire.

6
¶15 The trial court found no “pattern of racial presence

[sic] or exclusion,” noting that the defense struck five

minority jurors while the State struck only two. Additionally,

three minority jurors remained on the panel. The trial court

did not clearly err in rejecting Hardy’s Batson challenges.

B. Guilt phase

1. Sufficiency of the evidence

¶16 On the two murder counts, the State argued that Hardy

was guilty of both premeditated and felony murder. At the close

of the State’s case in chief, Hardy moved for a judgment of

acquittal on the kidnapping and burglary charges, which also

served as the predicate offenses for the felony murder theory.

He also moved for a judgment of acquittal on felony murder,

arguing that the State failed to prove that he committed the

shootings to further the kidnapping or burglary. Hardy argues

that the trial court erred in denying those motions.

¶17 A judgment of acquittal is appropriate “if there is no

substantial evidence to warrant a conviction.” Ariz. R. Crim.

P. 20(a); see State v. West, 226 Ariz. 559, 561 ¶ 8, 562 ¶ 14,

250 P.3d 1188, 1190, 1191 (2011). “Substantial evidence is that

which reasonable persons could accept as sufficient to support a

guilty verdict beyond a reasonable doubt.” State v. Davolt, 207

Ariz. 191, 212 ¶ 87, 84 P.3d 456, 477 (2004). We review the

denial of a motion for a judgment of acquittal de novo, viewing

7
the evidence in the light most favorable to sustaining the

verdict. West, 226 Ariz. at 562 ¶ 15, 250 P.3d at 1191.

a. Kidnapping

¶18 “A person commits kidnapping by knowingly restraining

another person with the intent to . . . aid in the commission of

a felony.” A.R.S. § 13-1304(A)(3). “‘Restrain’ means to

restrict a person’s movements without consent, without legal

authority, and in a manner [that] interferes substantially with

such person’s liberty, by . . . moving such person from one

place to another . . . . Restraint is without consent if it is

accomplished by[] [p]hysical force, intimidation or deception.”

A.R.S. § 13-1301(2).

¶19 The record reflects substantial evidence that Hardy

knowingly restrained Meleigha. She testified that Hardy “just

appeared” from behind her while she was using a vending machine.

He grabbed her by the back of her neck and arm, and she “just

started going upstairs” because he was holding her firmly enough

to direct her movement. He took her “up to [her] apartment” and

“pushed [her] in the living room and just started walking back

to the bedrooms.” The jury saw photographs of bruises on

Meleigha’s neck and arms that she testified were caused by

Hardy. The jury also heard an audio recording of Meleigha’s 911

call, in which she told the operator, “He got me when I was down

there, and he made me go up . . . . He had the gun to my back.”

8
The operator asked, “So did he like physically grab you,” and

Meleigha responded, “Yes, he grabbed me.”

¶20 The evidence further established that Hardy restrained

Meleigha with the intent to aid his commission of a felony, that

is, to injure or kill Tiffany and Don. Hardy searched for

Tiffany before the murders, and told a bartender he could “kill

them both.” After speaking to Don on the telephone, Hardy

retrieved his gun from his son before going to Meleigha’s

apartment. He took the gun into the apartment and shot the

victims several times. Viewed in the light most favorable to

sustaining the verdict, the record reflects sufficient evidence

to support the kidnapping conviction.

b. First degree burglary

¶21 A person commits burglary in the first degree by

“entering or remaining unlawfully in . . . a residential

structure with the intent to commit . . . any felony therein,”

and “knowingly possess[ing] . . . a deadly weapon . . . in the

course of committing any theft or any felony.” A.R.S. §§ 13-

1507 to 1508.

¶22 The record reflects sufficient evidence to show that

Hardy unlawfully entered Meleigha’s residence. He pushed

Meleigha into her apartment and, with neither invitation nor

consent, went down the hallway toward the bedrooms. Hardy

knowingly took a gun into the apartment. The evidence showed

9
that Hardy entered the apartment intending to confront and shoot

Tiffany and Don. See supra ¶ 20. Substantial evidence thus

supports the burglary conviction.

c. Felony murder

¶23 A person is guilty of felony murder if he “commits or

attempts to commit . . . kidnapping under § 13-1304, [or]

burglary under § 13-1506, 13-1507 or 13-1508 . . . and, in the

course of and in furtherance of the offense . . . causes the

death of any person.” A.R.S. § 13-1105(A)(2). “A death is in

furtherance when it results from any action taken to facilitate

the accomplishment of the predicate felony.” State v. Lacy, 187

Ariz. 340, 349-50, 929 P.2d 1288, 1297-98 (1996) (internal

quotation marks and alteration omitted); see also State v.

Arias, 131 Ariz. 441, 443, 641 P.2d 1285, 1287 (1982)

(distinguishing death that facilitates criminal objective of

underlying felony from death that results from commission of

predicate crime, and concluding the former is not required by

§ 13-1105(A)(2)).

¶24 Hardy argues generally that he did not commit the

murders to further kidnapping or burglary. Indeed, he argues,

the murders could not have facilitated the kidnapping because

that offense had ended before the shootings occurred. Neither

argument is persuasive.

¶25 In State v. Moore, the defendant, like Hardy,

10
committed a burglary in order to kill the victims inside a

residence. 222 Ariz. 1, 6 ¶¶ 6-9, 12 ¶ 49, 213 P.3d 150, 155,

161 (2009). We upheld the felony murder convictions, rejecting

Moore’s contention that those convictions “cannot be based on a

burglary intended solely to murder the victim.” Id. at 14 ¶ 62,

213 P.3d at 163. We held that felony murder may “be predicated

on a burglary that is based on the intent to murder”; it does

not “require the predicate offense to be separate or independent

from the homicide.” Id. at ¶¶ 61-62.

¶26 That reasoning pertains here and leads to the same

result. Because Arizona’s felony murder statute applies when

the predicate offense of burglary is undertaken with the intent

to murder the victim, it follows that the statute likewise

applies if the predicate offense is kidnapping based on intent

to aid in committing a murder. See A.R.S. §§ 13-1105(A)(2),

-1304(A)(3), -1507(A), -1508(A). And because the victims’

deaths resulted from Hardy’s actions taken to facilitate his

accomplishment of the predicate felonies, the deaths were in the

course of and in furtherance of those offenses. See Lacy, 187

Ariz. at 349-50, 929 P.3d at 1297-98; Arias, 131 Ariz. at 443,

641 P.2d at 1287.

¶27 Hardy’s argument that the predicate felonies were too

far removed from the murders also fails. A predicate felony

that “transpired immediately preceding [a] shooting,” when “the

11
shooting occurred in rapid sequence and as a part of the chain

of events which defendant’s deliberate acts set in motion,” is

not so far removed from a death that it precludes a finding of

felony murder. State v. Hitchcock, 87 Ariz. 277, 280, 350 P.2d

681, 683 (1960). Even if the kidnapping ended when Hardy

released Meleigha,4 that fact does not change the result. Hardy

pushed Meleigha up the stairs, entered the apartment,

immediately walked down the hallway, located Tiffany and Don,

and began to shoot. The “shooting occurred in rapid sequence

and as a part of the chain of events” of Hardy’s other felonious

actions. Hitchcock, 87 Ariz. at 280, 350 P.2d at 683. The

trial court did not err in denying Hardy’s motion for judgment

of acquittal.

2. First degree murder verdict forms

¶28 Hardy requested, but the trial court denied, alternate

verdict forms for first degree murder. The trial court

acknowledged that this Court has urged the use of alternate

verdict forms when the state alleges both premeditated and

felony murder, but nonetheless opted to use a single verdict

form without differentiation.

¶29 We have strongly urged trial courts to use alternate

4
The burglary had not ended when Hardy shot the victims
because he was “remaining unlawfully” in Meleigha’s apartment at
that time. A.R.S. § 13-1507(A).

12
forms of verdict when the state presents alternate theories of

premeditated and felony murder. State v. Smith, 160 Ariz. 507,

513, 774 P.2d 811, 817 (1989) (noting that the “great benefit”

for the “sound administration of justice and efficiency in

processing murder cases” supports submitting alternate forms of

verdict to the jury). But Smith “did not change the substantive

rule that it [is] not error to have one form of verdict for

first degree murder even though both premeditation and felony

murder [are] being submitted to the jury.” State v. Schad, 163

Ariz. 411, 417, 788 P.2d 1162, 1168 (1989) (noting that “first

degree murder is only one crime” and “the defendant is not

entitled to a unanimous jury verdict on the precise manner in

which the act was committed”), aff’d, 501 U.S. 624 (1991); see

also State v. Garza, 216 Ariz. 56, 67 ¶ 46 n.11, 163 P.3d 1006,

1017 n.11 (2007). However, if a jury’s verdict is based, “in

whole or in part, on [an] impermissible felony murder theory”

and the trial court did not provide separate verdict forms to

show whether the jury found premeditated rather than felony

murder, we will reverse the conviction and remand for a new

trial on the premeditation theory alone. State v. Lopez, 158

Ariz. 258, 264, 266, 762 P.2d 545, 551, 553 (1988).

¶30 Relying on Lopez, Hardy argues that the trial court

erred in failing to give two forms of verdict because the

evidence failed to support either predicate offense for felony

13
murder. As discussed above, however, substantial evidence

supports the convictions on both predicate offenses in this

case. Therefore, Hardy was not entitled to a unanimous decision

on the precise manner in which the murders were committed, and

the trial court did not err in denying Hardy’s request to use

separate verdict forms for first degree murder.

¶31 Again, however, the best practice is to submit

alternate verdict forms to the jury when the state presents

alternate theories of first degree murder. We encourage trial

courts to do so. A clear record of the jury’s findings enables

both parties to focus their arguments on appeal and serves the

goal of judicial economy by avoiding the need to remand in cases

like Lopez.

3. Other act evidence

¶32 Hardy argues that the trial court abused its

discretion by admitting evidence of other acts that occurred on

the weekend of the murders. Before trial, the State moved under

Rule of Evidence 404(b) to introduce evidence of Hardy’s actions

during the few days before the murders to show intent and as

intrinsic evidence. Specifically, the State proffered evidence

that Hardy argued with and slapped Tiffany; that she left him,

and he was searching for her; that he gave a gun to his son and

later retrieved it; and that he made the statements, “My baby is

gone,” and “I could kill them both.” Hardy opposed the State’s

14
motion, asserting that the evidence would be used improperly to

show that, because he had acted violently or threatened violence

before the murders and carried a gun, he must have acted in

conformity with his character and acted violently by shooting

Tiffany and Don.

¶33 During argument on the motion, the State emphasized

that the evidence was relevant to show intent because Hardy’s

defense — based primarily on absence of premeditation — had put

that element at issue. The trial court agreed, finding the

evidence admissible to show intent under Rule 404(b).5

¶34 Rule 404(b) governs admission of other act evidence

and provides as follows:

[E]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order
to show action in conformity therewith. It may,
however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or
accident.

The purpose of Rule 404(b) is “‘to keep from the jury evidence

that the defendant is prone to commit crimes or is otherwise a

bad person.’” State v. Ferrero, 229 Ariz. 239, 244 ¶ 23, 274

P.3d 509, 514 (2012) (quoting United States v. Green, 617 F.3d

5
Although the State argued below and on appeal that the
proffered evidence was admissible as intrinsic evidence, the
trial court did not admit the evidence on that ground. At oral
argument, the State conceded that the trial court’s ruling was
correct under our recent decision in State v. Ferrero, 229 Ariz.
239, 243 ¶ 20, 274 P.3d 509, 513 (2012).

15
233, 249 (3d Cir. 2010)).

¶35 If offered for a non-character purpose, other-act

evidence “may be admissible under Rule 404(b), subject to Rule

402’s general relevance test, Rule 403’s balancing test, and

Rule 105’s requirement for limiting instructions in appropriate

circumstances.” Ferrero, 229 Ariz. at 242 ¶ 12, 274 P.3d at

512. Before admitting evidence of other acts, a trial judge

must find clear and convincing evidence that the defendant

committed the act. State v. Anthony, 218 Ariz. 439, 444 ¶ 33,

189 P.3d 366, 371 (2008) (citing State v. Terrazas, 189 Ariz.

580, 582, 944 P.2d 1194, 1196 (1997)). We review a trial

court’s Rule 404(b) ruling for an abuse of discretion. State v.

Andriano, 215 Ariz. 497, 502 ¶ 17, 161 P.3d 540, 545 (2007),

abrogated in part on other grounds by Ferrero, 229 Ariz. at 243

¶ 20, 274 P.3d at 513.

a. Altercation with Tiffany; looking for Tiffany

¶36 In addition to opposing the State’s motion in limine,

Hardy objected at trial to the anticipated testimony of Hardy’s

friend, Krystal, that Tiffany had left because Hardy slapped

her. The court overruled the objection, finding the testimony

relevant to Hardy’s state of mind.

¶37 Krystal testified that, a day or two before the

murders, Hardy told her that Tiffany had left because “he had

hit her,” that he “kept repeating that she was gone and he was

16
upset,” and that he “wanted to find Tif” and would do anything

to locate her. The court gave a limiting instruction after the

testimony. At the close of the guilt phase, the court further

instructed the jurors that they could consider other acts only

if they found the State had proved by clear and convincing

evidence that the defendant committed the acts, and that those

acts were to be considered only to establish the defendant’s

motive or intent.

¶38 Evidence that a defendant was searching for the victim

shortly before the crime is admissible to show plan or intent.

See Ariz. R. Evid. 404(b). Evidence of prior argument with or

violence toward a victim is likewise admissible to show motive

or intent. Id.; see also State v. Wood, 180 Ariz. 53, 62, 881

P.2d 1158, 1167 (1994) (evidence of prior physical abuse and

threats was admissible to show motive and intent when defense

was lack of motive to kill and impulsivity); State v. Sparks,

147 Ariz. 51, 55-56, 708 P.2d 732, 736-37 (1985) (alleged feud

with victim was proper to prove retaliation motive); State v.

Jeffers, 135 Ariz. 404, 418-19, 661 P.2d 1105, 1119-20 (1983)

(prior attack showing malice toward victim was relevant to prove

motive and intent and to rebut defense of love and inability to

harm victim).

¶39 Hardy argues that the slap revealed marital discord

rather than motive or intent and cites United States v.

17
Peterson, 808 F.2d 969 (2d Cir. 1987), to support his assertion

that a single slap is insufficient to prove intent. In

Peterson, however, the issue was not that a single prior act was

proffered, but that the government failed to provide sufficient

background to support a necessary inference. 808 F.2d at 975.

In this case, there was no such failure. Krystal’s testimony

was relevant to prove motive and intent, and to rebut Hardy’s

defense theory.

¶40 Hardy’s argument that the trial court should have

excluded Krystal’s testimony as unfairly prejudicial is also

unavailing. “The court may exclude relevant evidence if its

probative value is substantially outweighed by a danger of . . .

unfair prejudice.” Ariz. R. Evid. 403. “Unfair prejudice means

an undue tendency to suggest decision on an improper basis,

. . . such as emotion, sympathy or horror.” State v. Schurz,

176 Ariz. 46, 52, 859 P.2d 156, 162 (1993) (internal quotation

marks omitted). Here, the trial court could reasonably find

that the evidence of Hardy hitting Tiffany was more probative

than prejudicial because Hardy’s motive and intent were

significant issues at trial. Further, the court expressly

instructed the jury to not consider the evidence to determine

the defendant’s character or that he acted in conformity

therewith. The trial court did not abuse its discretion in

admitting Krystal’s testimony about Hardy’s statements.

18
 b. Surrendering and retrieving a gun

¶41 Hardy’s son Jason testified that on Friday afternoon,

August 26, 2005, Hardy asked Jason to keep his gun because “he

didn’t need any drama.” Later that evening, Hardy retrieved the

gun. Hardy argues that this testimony was used to show his

disposition toward criminality – presumably because he was a

prohibited possessor, a fact alluded to during the guilt phase

by Hardy himself in explaining why he initially relinquished the

gun. But Hardy’s surrender and retrieval of the gun show that

he consciously chose to carry a deadly weapon that weekend.

Thus, the evidence was relevant and admissible to prove he

intended to kill the victims.

¶42 The trial court did not err in implicitly finding the

evidence not unduly prejudicial because it is not highly

evocative and was unlikely to compel jurors to decide the case

based on emotion, sympathy, or horror. See Schurz, 176 Ariz. at

52, 859 P.2d at 162. Additionally, the court’s limiting

instruction at the close of the guilt phase alleviated any

potential prejudice.

c. Statements to bartender

¶43 The State called a former bartender who testified that

two days before the murders Hardy came to her bar in tears and

told her, “My baby is gone . . . . [S]he’s really gone this

time,” and he “could kill them both.” It is not clear that such

19
testimony constitutes “evidence of other crimes, wrongs, or

acts,” nor was the evidence offered to prove Hardy’s character

“in order to show action in conformity therewith.” Ariz. R.

Evid. 404(b); compare State v. Huerstel, 206 Ariz. 93, 106 ¶ 69,

75 P.3d 698, 713 (2003) (testimony about defendant’s stated

plans to rob store on weekend of murders was not evidence of his

conduct, and therefore not subject to Rule 404(b)), with State

v. Nordstrom, 200 Ariz. 229, 247-48 ¶¶ 52-57, 25 P.3d 717, 735-

36 (2001) (applying Rule 404(b) to admission of defendant’s

statements soliciting another person to commit a crime two years

before the offense at issue). But if Rule 404(b) applies to the

bartender’s testimony, that evidence clearly was relevant and

admissible to prove Hardy’s intent, plan, or knowledge. See

Ariz. R. Evid. 401, 402, 404(b); see also State v. Dickey, 125

Ariz. 163, 167, 608 P.2d 302, 306 (1980) (ruling that

defendant’s statement weeks before shooting, “If anybody ever

messes with me, I’ll blow them away,” was relevant to prove

premeditation). And the evidence was not barred by the hearsay

rule, see Ariz. R. Evid. 801(d)(2)(A), 803(3), nor was its

probative value substantially outweighed by the danger of unfair

prejudice, Ariz. R. Evid. 403.

¶44 Hardy argues that his statements to the bartender are

not reliable because they were made while he was drinking, were

incomprehensible to her, and were remote in time. To the extent

20
any evidence supports this argument, it goes to the weight

rather than admissibility of the testimony. And even though the

bartender might not have known to whom Hardy was referring when

he made the statement that he could kill them both, there is

nothing inherently ambiguous or incomprehensible about the

statement.

¶45 Hardy also asserts that the bartender heard of the

statements from a third party rather than from Hardy himself.

But each of the statements introduced into evidence was made by

Hardy directly to the bartender. Although the bartender

allegedly heard from a co-worker other statements Hardy made

that night, evidence of those statements was not presented at

trial. The trial court did not abuse its discretion in

admitting the bartender’s testimony about Hardy’s statements to

her.

4. Personal history evidence

¶46 During her opening statement in the guilt phase,

defense counsel told the jury that Hardy was born to a heroin-

addicted prostitute who had an abusive pimp, and that Hardy had

certain cognitive impairments as a result of witnessing that

drug abuse and violence. The prosecutor objected on relevance

grounds. At a side-bar conference, the defense argued that the

jury would have to determine whether Hardy thought Don was

Tiffany’s pimp or lover to assess his contention that he was

21
attempting to keep her safe, not to track her down to kill her.

Defense counsel also stated that, to support Hardy’s self-

defense theory, he intended to tell the jury that Hardy had been

previously shot nine times as a result of a love triangle and

was consequently disabled. The trial court sustained the

State’s objection, ruling that information about the mother’s

pimp and the shooting in which Hardy was injured twenty-four

years earlier was too remote and irrelevant.6

¶47 Before Hardy testified, the defense again challenged

the court’s ruling. Hardy argued that to rebut the State’s

theory of premeditation he must be able to support a theory of

self defense, second degree murder, or manslaughter by

testifying that having witnessed his mother’s altercations with

pimps predisposed him to fear pimps on behalf of women he cared

for, and that his disability from having been shot nine times by

a woman’s jealous boyfriend would prevent him from taking on a

300-pound individual like Don.

¶48 The court overruled Hardy’s objection, finding that

the probative value was diminished because the proffered

evidence was remote and uncorroborated, and the prejudicial

impact far outweighed this attenuated value. The court,

6
The exclusion of Hardy’s personal-history evidence was
limited to the guilt phase. During the penalty phase, the
evidence was admitted without objection.

22
however, allowed Hardy “to explain that he does have physical

limitations, and that he has injuries that prevent him from

being mobile.” Additionally, Hardy testified without objection

about his care and love for Tiffany and his knowledge of Don’s

reputation for violence. Hardy argues that exclusion of his

personal-history evidence hindered his ability to present a

viable defense.

¶49 A defendant’s constitutional right to present a

defense “is limited to the presentation of matters admissible

under ordinary evidentiary rules.” State v. Dickens, 187 Ariz.

1, 14, 926 P.2d 468, 481 (1996), abrogated in part on other

grounds by Ferrero, 229 Ariz. at 243 ¶ 20, 274 P.3d at 513; see

also Taylor v. Illinois, 484 U.S. 400, 410, 411 n.15 (1988). To

be admissible, evidence must be relevant, Ariz. R. Evid. 401,

and its probative value must not be substantially outweighed by

a danger of unfair prejudice, confusing the issues, misleading

the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence, Ariz. R. Evid. 403. As probative value

diminishes, the potential increases that it will be

substantially outweighed by the dangers identified in Rule 403.

Cf. United States v. Rewald, 889 F.2d 836, 853 (9th Cir. 1989)

(considering Federal Rule of Evidence 403). We review a trial

court’s determination of relevance and admissibility of evidence

for an abuse of discretion. State v. Rutledge, 205 Ariz. 7, 10

23
¶ 15, 66 P.3d 50, 53 (2003).

¶50 Assuming that the proffered evidence was relevant to

prove Hardy’s state of mind, the trial court could reasonably

find it inadmissible under Rule 403. Any probative value was

greatly reduced because the evidence related to remote events

that did not involve any victim of the crimes at issue.

Evidence of Hardy’s mother’s prostitution or an unrelated gun

battle could confuse the issues or mislead the jury by shifting

the focus away from the defendant’s alleged assaults on the

victims. See United States v. Chase, 451 F.3d 474, 480 (8th

Cir. 2006); State v. Larose, 554 A.2d 227, 231 (Vt. 1988).

¶51 To the extent Hardy’s proffered evidence was relevant

to support the theory that he intended to protect Tiffany, it

called for uncorroborated speculation that Don was Tiffany’s

pimp. Thus, testimony of his mother’s violent incidents with

pimps also could confuse the issues and lead the jury to base

its determination on conjecture and unsound reasoning. See

United States v. Iron Hawk, 612 F.3d 1031, 1040 (8th Cir. 2010).

In sum, the trial court did not abuse its discretion in

excluding Hardy’s proffered personal-history evidence during the

trial’s guilt phase.

5. Jail garb

¶52 Hardy argues that the trial court abused its

discretion in denying his motion for a mistrial after three

24
jurors inadvertently saw him during the guilt phase exiting an

elevator accompanied by law enforcement officers and wearing

jail garb. Mistrial “is the most dramatic remedy for trial

error and should be granted only when it appears that justice

will be thwarted unless the jury is discharged and a new trial

granted.” State v. Dann (Dann I), 205 Ariz. 557, 570 ¶ 43, 74

P.3d 231, 244 (2003). We review the denial of a motion for

mistrial for abuse of discretion. State v. Speer, 221 Ariz.

449, 462 ¶ 72, 212 P.3d 787, 800 (2009).

¶53 Following deliberations in the guilt phase, three

jurors saw Hardy in a wheelchair being rolled out of a freight

elevator by officers. Hardy contends that he was wearing

handcuffs and jail garb at the time. Two of those jurors

noticed that he was wearing jail garb, but none noticed whether

he was in handcuffs because, as soon as they recognized Hardy,

the jurors closed a hallway door and waited for him to pass.

One of these jurors mentioned to the rest of the jury panel that

they had seen Hardy but did not mention what he was wearing.

¶54 Generally, a defendant in a criminal case has a right

to appear in civilian clothing and be free from visible

restraints in the courtroom during trial. Deck v. Missouri, 544

U.S. 622, 629 (2005) (visible restraints); Estelle v. Williams,

425 U.S. 501, 504-06 (1976) (jail garb); State v. Gomez, 211

Ariz. 494, 502–03 ¶¶ 40–41, 123 P.3d 1131, 1139–40 (2005)

25
(visible restraints); State v. Garcia-Contreras, 191 Ariz. 144,

146-47 ¶ 8, 953 P.2d 536, 538-39 (1998) (jail garb). Violation

of these rights requires reversal unless the state can show

harmless error. Deck, 544 U.S. at 635; State v. Reid, 114 Ariz.

16, 23, 559 P.2d 136, 143 (1976). A juror’s inadvertent

exposure to the defendant in handcuffs outside the courtroom,

however, “is not inherently prejudicial, and a defendant is not

entitled to a new trial absent a showing of actual prejudice.”

Speer, 221 Ariz. at 462-63 ¶¶ 74-75, 212 P.3d at 800-01

(internal quotation marks omitted) (one juror); State v. Apelt,

176 Ariz. 349, 361, 861 P.2d 634, 646 (1993) (several jurors).

This reasoning also applies to a juror’s inadvertent exposure to

the defendant in jail garb.

¶55 In this case, there was no showing of actual

prejudice. The jurors who saw Hardy assured the trial court

that they could be fair and impartial through the aggravation

and penalty phases of the trial. After this assurance, Hardy

withdrew a motion to replace those three jurors with alternates

and indicated that “if the court fe[lt] there [was] prejudice”

it should select an entirely new jury. The trial court

reasonably found no prejudice relating to the three jurors who

saw Hardy, and there could be no prejudice regarding the other

jurors who neither saw nor knew of his jail attire. The trial

court did not abuse its discretion in denying the motion for

26
mistrial.

C. Sentencing phase

1. Refusal of Simmons instruction

¶56 During the penalty phase, Hardy filed two motions

requesting the trial court to instruct the jury that if it

returned life sentences on the murder convictions, Hardy would

not be eligible for release on those counts after twenty-five

years because of the pending sentences on the kidnapping and

burglary convictions, and that he would be eligible for

potential release only through executive clemency. He claims

error in the trial court’s denial of the requested instructions.

¶57 We review the legal adequacy of a jury instruction de

novo, State v. Cota, 229 Ariz. 136, 151 ¶ 77, 272 P.3d 1027,

1042 (2012), and find no error.

¶58 Due process requires a court to inform a capital jury

that a defendant is ineligible for parole if the defendant’s

future dangerousness is in issue and state law prohibits his

release on parole. Simmons v. South Carolina, 512 U.S. 154, 156

(1994). But Simmons instructions are not required when “[n]o

state law . . . prohibit[s the defendant’s] release on parole.”

State v. Cruz, 218 Ariz. 149, 160 ¶ 42, 181 P.3d 196, 207

(2008); see also Ramdass v. Angelone, 530 U.S. 156, 166 (2000)

(plurality opinion). In a capital case involving an adult

victim, A.R.S. § 13-751 provides for the possibility of a life

27
sentence with release after twenty-five years. The jury

instruction given accurately stated the law. See State v.

Chappell, 225 Ariz. 229, 240 ¶ 42, 236 P.3d 1176, 1187 (2010).

No Simmons instruction was required.

2. Improper testimony

¶59 The trial court denied Hardy’s motion for a mistrial

after the prosecutor challenged on cross-examination the opinion

of Dr. Cunningham, a defense psychologist, that Hardy would

“likely adjust to a life term in prison without serious

violence.” Although not asserting any prosecutorial misconduct,

Hardy argues that the court abused its discretion in denying

that motion because the prosecutor’s exchange with the expert

constituted improper testimony.

¶60 On cross-examination, the prosecutor established that

Dr. Cunningham had testified as an expert for Leroy Cropper,

another capital defendant. The following exchange ensued:

STATE: Prison did not work for Brent Lumley did it?

CUNNINGHAM: Yes, sir. When I say “prison works” that
means to keep violence from happening in prison. I
didn’t address the issue of how it works in terms of
rehabilitating individuals or how long they need to be
held . . . . I addressed that it works to profoundly
limit the frequency of serious violence under a
population that is already at risk. That’s how prison
works.

STATE: Okay. I want you to listen to my question
again. Prison didn’t work for Brent Lumley did it?

DEFENSE COUNSEL: Objection, [Y]our Honor. Relevance.

28
 We don’t even know who Brent Lumley is in this
context. And he has lack of personal knowledge. . . .

COURT: If you know — if you have any personal
knowledge?

CUNNINGHAM: The name is familiar but I don’t have
personal knowledge. And prison works for keeping
people safe in prison for reducing the incidence of
violence.

STATE: Brent Lumley is the prison guard that your
client Leroy [Cropper] killed in prison?

DEFENSE COUNSEL: Objection, your Honor. Highly
improper and irrelevant.

COURT: I’ll sustain the objection.

¶61 Hardy characterizes the prosecutor’s unanswered

question as “improper testimony.” But because Dr. Cunningham

did not answer the prosecutor’s question, there was no testimony

that could be deemed improper. And even if we assume the

question was argumentative, lacked foundation, or was otherwise

improper, the trial court sustained Hardy’s objection.

¶62 In addition, before the jurors deliberated at the end

of the sentencing phase, the trial court instructed them that

“[i]t is the duty of the Court to rule on the admissibility of

evidence. You shall not concern yourselves with the reasons for

these rulings. You shall disregard questions and exhibits that

were withdrawn or to which objections were sustained.” The

court also told the jurors, “The attorneys’ remarks, statements,

and arguments are not evidence.” Even assuming the prosecutor’s

29
question was improper, we presume the jurors followed the

court’s instructions, which sufficiently cured any alleged

prejudice. State v. Newell, 212 Ariz. 389, 403 ¶ 68, 132 P.3d

833, 847 (2006); State v. Lamar, 205 Ariz. 431, 439 ¶ 43, 72

P.3d 831, 839 (2003). The trial court did not err in denying

Hardy’s motion for mistrial. Dann I, 205 Ariz. at 570 ¶ 43, 74

P.3d at 244 (stating mistrial is “the most dramatic remedy for

trial error” and should be declared only when justice would

otherwise be thwarted).

III. REVIEW OF DEATH SENTENCE

¶63 Because the murders occurred after August 1, 2002, we

review the jury’s finding of aggravating factors and imposition

of the death sentence for an abuse of discretion. A.R.S. § 13-

756(A). “A finding of aggravating circumstances or the

imposition of a death sentence is not an abuse of discretion if

‘there is any reasonable evidence in the record to sustain it.’”

State v. Delahanty, 226 Ariz. 502, 508 ¶ 36, 250 P.3d 1131, 1137

(2011) (quoting State v. Morris, 215 Ariz. 324, 341 ¶ 77, 160

P.3d 203, 220 (2007)).

A. Aggravating circumstances

¶64 The jury found that Hardy was previously convicted of

a serious offense, A.R.S. § 13-751(F)(2), and that he was

convicted of one or more other homicides that were committed

during the commission of the offense, § 13-751(F)(8). Hardy

30
does not contest these findings, and the record fully supports

them.

B. Mitigating circumstances

¶65 During the penalty phase, a juror may find any

mitigating circumstance by a preponderance of the evidence and

consider these findings in determining the appropriate sentence.

A.R.S. § 13-751(C). Hardy presented evidence that described the

climate of poverty and violence in which he grew up and alleged

that it resulted in cognitive impairment, a troubled childhood,

and a lack of positive male role models. He also alleged

devotion to his family, his physical disability, and a lack of

propensity for future violence. The State presented evidence to

rebut many of these mitigating circumstances. The jury did not

find the proffered mitigation sufficiently substantial to call

for leniency.

¶66 We will overturn a “jury’s imposition of a death

sentence only if no reasonable jury could have concluded that

the mitigation established by the defendant was not sufficiently

substantial to call for leniency.” Cota, 229 Ariz. at 153 ¶ 95,

272 P.3d at 1044 (internal quotation marks omitted). Even

assuming Hardy proved each alleged mitigating circumstance, we

cannot say that no reasonable juror could have concluded that

the factors were not substantial enough to find a life rather

than death sentence appropriate. See id.; Chappell, 225 Ariz.

31
at 242-43 ¶¶ 58-59, 236 P.3d at 1189-90; Morris, 215 Ariz. at

341 ¶¶ 81-82, 160 P.3d at 220. Thus, the jury did not abuse its

discretion in finding the mitigation evidence insufficient to

warrant leniency.

IV. CONCLUSION

¶67 We affirm Hardy’s convictions and sentences.7 

_____________________________________
A. John Pelander, Justice

CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice

_____________________________________
Scott Bales, Vice Chief Justice

_____________________________________
Robert M. Brutinel, Justice

7
Hardy raises eleven other claims to avoid preclusion on
“subsequent review.” Those claims and the decisions by this
Court that he identifies as rejecting them are presented
verbatim in the Appendix.

32
 APPENDIX

(1) The fact-finder in capital cases must be able to
consider all relevant mitigating evidence in deciding whether to
give the death penalty. See Woodson v. North Carolina, 428 U.S.
280, 304, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). The trial
court’s failure to allow the jury to consider and give effect to
all mitigating evidence in this case by limiting its
consideration to that proven by a preponderance of the evidence
is unconstitutional under the Eighth and Fourteenth Amendments.
This Court rejected this argument in [State v.] McGill, 213
Ariz. [147, 161 ¶ 59, 140 P.3d 930, 944 (2006)].

(2) By allowing victim impact evidence at the penalty phase
of the trial, the trial court violated defendant’s
constitutional rights under the Fifth, Sixth, Eighth and
Fourteenth Amendments and Article 2, Sections 1, 4, 13, 15, 23,
and 24 of the Arizona Constitution. This Court rejected
challenges to the use of victim impact evidence in Lynn v.
Reinstein, 205 Ariz. 186, 191 ¶ 16, 68 P.3d 412, 417 (2003).

(3) The trial court improperly omitted from the penalty
phase jury instructions words to the effect that they may
consider mercy or sympathy in deciding the value to assign the
mitigation evidence, instead telling them to assign whatever
value the jury deemed appropriate. The court also instructed
the jury that they “must not be influenced by mere sympathy or
by prejudice in determining these facts.” These instructions
limited the mitigation the jury could consider in violation of
the Fifth, Sixth, Eighth and Fourteenth Amendments and Article
2, Sections 1, 4, 15, 23, and 24 of the Arizona Constitution.
This Court rejected this argument in State v. Carreon, 210 Ariz.
54, 70-71 ¶¶ 81-87, 107 P.3d 900, 916-917 (2005).

(4) The death penalty is cruel and unusual under any
circumstances and violates the Eighth and Fourteenth Amendments,
and Article 2, Section 15 of the Arizona Constitution. This
Court rejected this argument in State v. Harrod, 200 Ariz. 309,
320 ¶ 59, 26 P.3d 492, 503 (2001), vacated on other grounds, 536
U.S. 953, 122 S.Ct. 2653, 153 L.Ed.2d 830 (2002).

(5) The death penalty is irrational and arbitrarily
imposed; it serves no purpose that is not adequately addressed
by life in prison, in violation of the defendant’s right to due
process under the Fourteenth Amendment to the United States
Constitution and Article 2, Sections 1 and 4 of the Arizona
Constitution. This Court rejected these arguments in State v.

33
Beaty, 158 Ariz. 232, 247, 762 P.2d 519, 534 (1988).

(6) The prosecutor’s discretion to seek the death penalty
lacks standards and therefore violates the Eighth and Fourteenth
Amendments, and Article 2, Sections 1, 4, and 15 of the Arizona
Constitution. This Court rejected this argument in State v.
Sansing, 200 Ariz. 347, 361 ¶ 46, 26 P.3d 1118, 1132 (2001),
vacated on other grounds, 536 U.S. 954, 122 S.Ct. 2654, 153
L.Ed.2d 830 (2002).

(7) Arizona’s death penalty is applied so as to
discriminate against poor, young, and male defendants in
violation of Article 2, Sections 1, 4, and 13 of the Arizona
Constitution. This Court rejected this argument in Sansing, 200
Ariz. at 361 ¶ 46, 26 P.3d at 1132.

(8) Proportionality review serves to identify which cases
are above the “norm” of first-degree murder, thus narrowing the
class of defendants who are eligible for the death penalty. The
absence of proportionality review of death sentences by Arizona
courts denies capital defendants due process of law and equal
protection and amounts to cruel and unusual punishment in
violation of the Fifth, Eighth, and Fourteenth Amendments, and
Article 2, Section 15 of the Arizona Constitution. This Court
rejected this argument in Harrod, 200 Ariz. at 320 ¶ 65, 26 P.3d
at 503.

(9) Arizona’s death penalty unconstitutionally requires
imposition of the death penalty whenever at least one
aggravating circumstance and no mitigating circumstances exist,
in violation of the Eighth and Fourteenth Amendments, and
Article 2, Section 15 of the Arizona Constitution. Arizona’s
death penalty law cannot constitutionally presume that death is
the appropriate default sentence. This Court rejected this
argument in State v. Miles, 186 Ariz. 10, 19, 918 P.2d 1028,
1037 (1996).

(10) Execution by lethal injection is cruel and unusual
punishment in violation of the Eighth and Fourteenth Amendments,
and Article 2 sec. 15 of the Arizona Constitution. This
argument was rejected in State v. Van Adams, 194 Ariz. 408, 422,
984 P.2d 16, 30 (1999).

(11) Arizona’s statutory scheme for considering mitigating
evidence is unconstitutional because it limits full
consideration of that evidence. State v. Mata, 125 Ariz. 233,
242, 609 P.3d 48, 57 (1980).

34